PUBLIC LAW SUMMARIES

RY (Sem 2, 2016)

LAWS1021 Notes

Contents SEMINAR 9: FEDERAL ADMINISTRATIVE DETENTION ...... 4 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ...... 4 Al-Kateb v Godwin ...... 5 Re Woolley (2004) ...... 6 NAAJA [99]: ...... 6 Plaintiff S4/2014 v Minister for Immigration (2014) ...... 6 M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 ...... 7 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 ...... 8

SEMINAR 10: STATE COURTS AND JUDGES ...... 9 Kable v DPP (1996) ...... 9 Fardon v A-G (2004) 223 CLR 575 ...... 10 International Finance Trust v NSWCC (2009) 240 CLR 319 ...... 11 South v Totani (2010) 242 CLR 1 ...... 12 Wainohu v NSW (2011) HCA 24 ...... 12 Assistant Commissioner Condon v Pompani [2013] HCA 7 ...... 12 Kuczborski v Queensland [2014] HCA 46 ...... 13

SEMINAR 11: MATTERS ...... 13 In re Judiciary and Navigation Acts (1921) 29 CLR 257 ...... 14 Mellifont v A-G (Qld) (1991) 173 CLR 289 ...... 15 Queen of Queensland Case (1975) 134 CLR 298 ...... 15 Croome v Tasmania (1997) 191 CLR 119 ...... 15 Abebe v Commonwealth (1999) 197 CLR 510 ...... 17 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 272 ...... 17 Australian Conservation Foundation Inc v Commonwealth (1980) and Onus v Alcoa of Australia Ltd (1981) ...... 17 Williams v Cth (2012) ...... 17 Kuczborski v Queensland [2014] HCA 46 ...... 17

SEMINAR 13: THE EXECUTIVE ...... 18

SEMINAR 14: PROROGATIVE AND STATUTORY EXECUTIVE POWERS ...... 22 A-G v De Keyser’s Royal Hotel Ltd (1920) ...... 22 Cadia Holdings P/L v NSW (2010) ...... 22 R (Bancoult) v Secretary of State for Foreign and Cth Affairs ...... 22 Ruddock v Vadarlis (Tampa Case) (2001) 183 ALR 1 ...... 22 CPCF v Minister of Immigration and Border Protection (2015) ...... 22

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Victorian Stevedoring (1931) ...... 22

SEMINAR 15: ACCOUNTABILITY TO PARLIAMENT ...... 23 Evans v NSW [2008] ...... 23 Egan v Wills (1998) ...... 23 Egan v Chadwick (1999) ...... 23 Dignan’s Case (1931) ...... 24

SEMINAR 16: FREEDOM OF INFORMATION...... 24 Public Service Board of NSW v Osmond (1986) 159 CLR 656 ...... 34

SEMINAR 17: ADMINISTRATIVE LAW PROCEEDINGS ...... 39 Re Judiciary and Navigation Act ...... 49 Jaffarie v Director-General of Security [2014] FCAFC 102 ...... 52 Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 ...... 54

SEMINAR 19: COMPLAINTS AND INVESTIGATIVE AGENCIES ...... 56 Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238 ...... 59

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SEMINAR 9: FEDERAL ADMINISTRATIVE DETENTION

Framework  Executive can be authorised to detain people under powers conferred on it by legislation or its inherent executive powers: o Pursuant to court order following adjudication of criminal guilt o Arrest and detention in custody of a person accused of crime to ensure they are available to be dealt with by the court o Mental illness o Infectious disease o Power of Parliament to punish for contempt o Military tribunals o Extradition (Vasilijkovic v Cth (2006)  The determination and punishment of criminal guilt is essentially a judicial function (Lim (1992) [27])  Ch III prevents any vesting of judicial function in Executive so where detention in substance involves punishment of criminal guilt, that will infringe constitutional separation of powers.

IMMIGRATION DETENTION

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

Brennan, Deane and Dawson JJ: Australian Citizens: Punitive detention against their will can only be ordered by the Judiciary and only as a consequence of a judicial finding of criminal responsibility. Non-Citizens: Section 51 confers power on Cth Parliament to detain aliens for the purpose of immigration processing. Thus detention of aliens is not inconsistent with Ch III. Cth Parliament cannot give Executive arbitrary power to detain because involuntary custody is punishment.

McHugh J:  Not punitive in character because purpose of imprisonment is to prevent alien from entering community until determination is made  But if imprisonment goes beyond what is reasonably necessary to achieve non- punitive purpose, it will be regarded as punitive in character

Non-judicial detention can only be justified by a non-punitive motivation. There is no exhaustive list re motivations that justify non-punitive detention. This is a Section 51 issue, not Ch III issue (Kruger v Cth)

Proportionality test for non-punitive detention: Detention be ‘reasonably necessary or adapted’ to achieving a non-punitive legislative purpose.

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‘In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form.’ Lim [28]

Al-Kateb v Godwin Facts: A argued that his immigration detention would be effectively indefinite in duration since he held no citizenship and could not be deported anywhere. Held: Cth’s power to detain aliens for the purposes of processing deportation and is not rendered invalid even if detention is potentially indefinite. As long as the detention is not punitive in nature, the Cth retains such power. Detention of non-citizens by Executive pursuant to ss 189, 196 and 198 did not contravene Ch III of Cth Constitution even if removal of non-citizen from Aust. was not reasonably practicable in the foreseeable future.

Hayne J: is non-punitive because:  No ‘offence’ has been committed (not offence to enter Aust. without visa)  Detention excludes person from community  Relevant person came or remained in this country without permission  Govt. is unable to remove them due to extra-jurisdictional factors  Absence of judicial process leading to their detention

McHugh J:  A law whose object is purely protective will not have a punitive purpose.  As long as detention is to make them available for deportation or to prevent entry into Aust., it is non-punitive.  Lim was no assistance as here, indefinite detention was necessary to prevent P from entering Aust.

Gummow J (dissent)  Constitutional interpretation provides that human rights should be protected unless intention is express and unambiguous (Principle of legality)  Often a blur between purely punitive and purely non-punitive detention as sometimes purposes are mixed.  Courts should focus on deprivation of liberty, rather than whether deprivation was for a punitive purpose.  Parliament could authorise executive to detain aliens for purpose of deportation or expulsion but not after deportation has ceased to be viable.

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Re Woolley (2004) Whether ss 189 and 196 validly applied to children. HCA held unanimously that they did. McHugh J: Issue of whether a law is punitive or protective must be determined by reference to law’s purpose.

RECAP Lim (1992) Al-Kateb, Behrooz, Woolley (2014) 1. Non-punitive purposes for detention 1. No reason to see non-punitive are exceptional and limited purposes for detention as exceptional or limited. 2. Detention will not be characterised as for non-punitive purpose unless it 2. Courts do not apply a is ‘reasonably capable of being seen ‘proportionality’ requirement in as necessary for’ the non-punitive characterising detention as purpose. punitive/non-punitive (it is sufficient if the legislative object is ‘non- punitive’)

3. Certainly to extent that proportionality is relevant, it doesn’t fix on the conditions of detention or impact of the detention on individuals.

Lim principles re-affirmed?

NAAJA [99]: Approach of more recent cases has shifted away from Al-Kateb and reaffirmed Lim re characterisation of detention. 1. Legislative object of detention is relevant – if it is punitive, detention is punitive and can only be imposed by judicial order 2. Legislative object is not conclusive – in order to escape characterisation as punitive, the duration of the detention must meet 2 conditions: a. Reasonably necessary to effectuate a non-punitive purpose which is identified in the statute conferring the power to detain and which is capable of fulfilment; b. Capable of objective determination by a court at any time and from time to time

Plaintiff S4/2014 v Minister for Immigration (2014) Facts: Minister granted P two visas after Department determined P was a and satisfied relevant health and character requirements. Minister granted 7-day visa for purpose

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