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Federal Court of Australia |
Last Updated: 24 January 2005
FEDERAL COURT OF AUSTRALIA
SHAHID KAMRAN QURESHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA [2005] FCA 11
CONSTITUTIONAL LAW (Cth) – Powers of the Commonwealth
Parliament – Whether s 209 of the Migration Act 1958 (Cth)
beyond power – whether provision for payment of the costs of mandatory
detention by a non-citizen is an acquisition of
property otherwise than on just
terms – whether the Migration Reform Act 1992 (Cth) is a law imposing
taxation and dealing with other matters – The Constitution, ss 51(xxxi)
and 55.
Australian Constitution ss 51(xix), 51(xxxi), 53, 54,
55
Judiciary Act 1903 (Cth) ss 39B, 78B
Migration Act
1958 (Cth) ss 4, 5 , 13, 14, 29, 36, 189, 196, 198, 199, 200, 207, 208, 209,
210, 211, 212, 213, 214, 215, 273
Migration Reform Act 1992 (Cth) s
16
Acts Interpretation Act 1901 (Cth) s 15A
The
General Practitioners Society in Australia v The Commonwealth [1980] HCA 30; (1980) 145
CLR 532 referred to
Harper v Victoria [1966] HCA 26; (1966) 114 CLR 361
referred to
Matthews v The Chicory Marketing Board (Victoria) [1938] HCA 38; (1938)
60 CLR 263 referred to
Carr v Finance Corporation of Australia Ltd
(No 1) [1981] HCA 20; (1981) 147 CLR 246 applied
Air Caledonie International v The
Commonwealth [1988] HCA 61; (1988) 165 CLR 462 followed
Al-Kateb v Godwin [2004] HCA 37;
(2004) 78 ALJR 1099; (2004) 208 ALR 124 considered
Chu Kheng Lim v
Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR
1 considered
Behrooz v Secretary of the Department of Immigration and
Multicultural Indigenous Affairs [2004] HCA 36; (2004) 78 ALJR 1056; (2004) 208 ALR 271
considered
Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62;
(2000) 202 CLR 133 followed
Australian Tape Manufacturers Association Ltd
v The Commonwealth [1993] HCA 10; (1993) 176 CLR 480 followed
Mutual Pools &
Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 followed
Minister
of State for the Army v Dalziel [1944] HCA 4; (1943) 68 CLR 261 cited
Bank of
New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 cited
Poulton
v The Commonwealth [1952] HCA 70; (1953) 89 CLR 540 cited
Grannall v
Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55 cited
Victoria v
The Commonwealth [1995] HCA 45; (1996) 187 CLR 416 cited
Fairfax v Federal
Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 cited
The Grain Pool of
Western Australia v The Commonwealth [2000] HCA 14; (2000) 202 CLR 479 cited
Re
Maritime Union of Australia; ex parte CSL Pacific Inc [2003] HCA 43; (2003) 214 CLR 397
cited
Logan Downs Pty Ltd v Queensland [1977] HCA 3; (1977) 137 CLR 59
cited
Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314
considered
Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 referred to
Giris
Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365
cited
Grace Bros Pty Ltd v The Commonwealth [1946] HCA 11; (1946) 72 CLR 269
cited
Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 57; (1948) 75 CLR 495
cited
Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493 cited
Permanent Trustee
Australia Limited v Commissioner of State Revenue [2004] HCA 53; (2004) 211
ALR 18 referred to
Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529
referred to
Parton v Milk Board (Victoria) [1949] HCA 67; (1949) 80 CLR 229
referred to
Swift Australian Co (Pty) Ltd v Boyd Parkinson [1962] HCA 41; (1962) 108
CLR 189 referred to
Browns Transport Pty Ltd v Kropp [1958] HCA 49; (1958) 100 CLR
117 referred to
Northern Suburbs General Cemetery Reserve Trust v The
Commonwealth [1993] HCA 12; (1993) 176 CLR 555 referred to
Hematite Petroleum Pty Ltd
v Victoria [1983] HCA 23; (1983) 151 CLR 599 referred to
Ex parte Walsh and Johnson;
In Re Yates [1925] HCA 53; (1925) 37 CLR 36 referred to
Robtelmes v Brenan (1906)
4 CLR (Pt 1) 395 referred to
Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533
referred to
Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 referred to
Re
Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 referred
to
Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 referred
to
Georgiadis v Australian and Overseas Telecommunications
Corporation [1994] HCA 6; (1994) 179 CLR 297 referred to
Ninetendo Co Ltd v
Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 referred to
Burton v
Honan [1952] HCA 30; (1952) 86 CLR 169 referred to
Coleman v Power [2004] HCA 39; (2004) 209 ALR
182 cited
Purvis v State of New South Wales (2003) 2002 ALR 133 cited
Leask v Commonwealth of Australia [1996] HCA 29; (1996) 187 CLR 579 cited
Re
Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 cited
Professor Guy S
Goodwin-Gill, "Article 31 of the 1951 Convention relating to the Status of
Refugees: Non-penalization, Detention and
Protection", a paper prepared at the
request of the Department of International Protection, UNHCR, Global
Consultations, October
2001.
http://www.unhcr.ch/cgi-bin/texis/vtx/home/+EwwBmie-CsdwwwwnwwwwwwwhFqA72ZR0gRfZNtFqrpGdBnqBAFqA72ZR0gRfZNcFqMHddmioDe2xqqccDzmxwwwwwww/opendoc.pdf
The
Lawyers Committee for Human Rights, "Refugees Behind Bars: The Imprisonment of
Asylum Seekers in the Wake of the 1996 Immigration
Act", August 1999.
http://www.humanrightsfirst.org/pubs/descriptions.behindbars.htm
Oxford
English Dictionary
SHAHID KAMRAN QURESHI v MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND INDIGENOUS AFFAIRS and COMMONWEALTH OF
AUSTRALIA
V 552 of 2002
KENNY
J
MELBOURNE
17 JANUARY 2005
|
SHAHID KAMRAN QURESHI
APPLICANT |
|
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondents’ costs of and incidental to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
INTRODUCTION
1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for declarations, including that s 209 of the Migration Act 1958 (Cth) ("the Act") is invalid by reason of ss 51(xxxi) and 55 of the Australian Constitution ("the Constitution"). The applicant has given notice, pursuant to s 78B of the Judiciary Act 1903 (Cth), to the Attorneys-General of the Commonwealth, the States, the Northern Territory and the Australian Capital Territory.
2 In support of his constitutional challenge, the applicant relied on his own affidavit, which was sworn on 14 November 2002, and the affidavit of Kashaf Malik Azram, also sworn on 14 November 2002. The respondents submitted that these affidavits were inadmissible in so far as they related to the conditions the deponents experienced in immigration detention. For the reasons appearing below, I accept that, to the extent that the affidavits of the applicant and Mr Azram dealt with such matters, they have no relevant bearing on the constitutional questions raised in the proceeding and are, for this reason, inadmissible.
3 The respondents relied on an affidavit sworn on 2 December 2002 by an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), Gregory Hatzistavrou. The background facts set out below are derived from this affidavit, the contents of which are not disputed.
THE BACKGROUND FACTS
4 The facts that give rise to this application can be briefly stated. The applicant, who is a citizen of Pakistan, arrived in Australia on 13 February 1998, travelling on a Student Visa that had been granted on 2 December 1997. He was subsequently granted a further Student Visa, valid until 23 July 2000.
5 On 21 July 2000, the applicant applied for a further Student Visa and, also on this date, he was granted a Bridging Visa WA 010. A delegate of the Minister refused his further Student Visa application on 15 August 2000. The Migration Review Tribunal ("the MRT") affirmed the delegate’s decision on 14 November 2000, and the applicant was so notified. On 19 December 2000, on the expiry of his bridging visa, the applicant became an unlawful non-citizen within the meaning of s 14 of the Act. The applicant did not leave Australia before 19 December 2000.
6 On 21 March 2001, officers of the Department took the applicant into immigration detention pursuant to s 189 of the Act. On 11 April 2001, the applicant applied for a Protection Visa (as referred to in s 36 of the Act) and a Bridging Visa E. His application for a Bridging Visa E was refused on 17 April 2001. On 15 May 2001, a delegate of the Minister refused to grant the applicant a Protection Visa and, on 25 June 2001, the Refugee Review Tribunal ("the RRT") affirmed this decision. On 14 December 2001, a judge of this Court dismissed an application for judicial review of the RRT’s decision and a Full Court of this Court dismissed an appeal on 10 May 2002.
7 On 31 May 2002, the applicant filed an application for orders nisi for prohibition, certiorari, mandamus or an injunction in the High Court of Australia in relation to the RRT’s decision. On 11 July 2001, he lodged a further application for a Bridging Visa E, which was refused on 13 July 2001. The MRT affirmed this decision on 30 July 2001. On 30 August 2001, the applicant lodged a further application for a Bridging Visa E, which was again refused. On 11 September 2001, however, the MRT set aside this decision and remitted the matter to the delegate. On 18 September 2001, the applicant was granted a Bridging Visa E subclass 050 subject to conditions and was released from detention.
8 By his statement of claim, the applicant alleged that:
On or about 18 September 2001 the Minister demanded that the Applicant pay the Commonwealth for the costs of his detention ("the Demand") pursuant to section 209 of the Act.
By way of particulars of this
allegation, he said:
The demand is in writing and is contained in a document which was given to the Applicant upon his release from immigration detention. A copy of the document is in the possession of the Applicant’s solicitors and may be inspected by appointment.
9 Amongst other things, the respondents pleaded, in their Defence, that:
[O]n 18 September 2001, the Applicant was granted a bridging visa pursuant to Part 2, Division 3, Subdivision AF of the Act and was released from detention under s 189 of the Act.
10 In particulars, the respondents stated:
The bridging visa was a bridging visa E – subclass 050, granted by a delegate of the First Respondent on 18 September 2001 and subject to conditions prescribed by Schedule 8 to the Migration Regulations 1994 that the Applicant:
(i) report to 2 Lonsdale St Melbourne 15th Floor on 20 September 2001 at 10 am – 12 noon and thereafter on Tuesdays and Thursdays between 10 am and 12 pm (Condition 8401 or 8402);
(ii) reside at 60B Beaconsfield Pde, Albert Park (Condition 8505);
(iii) advise the Department of Immigration and Multicultural Affairs (DIMA) of a change of address at least two working days before the change (Condition 8506)
(iv) no work (Condition 8101)
(v) study restrictions (Condition 8201)
(vi) pay or make arrangements to pay costs of detention, $26,460, to DIMA (Condition 8507); and
(vii) present/apply for a passport by 25 September 2001 (Condition 8510).
[Emphasis added]
The parties conducted the proceeding upon
the basis that the Commonwealth required the applicant to make arrangements to
pay the amount
of $26,460, pursuant to s 209 of the Act, and as a condition
of his visa.
THE PARTIES’ SUBMISSIONS
11 Prior to the hearing the parties filed written contentions, which they augmented at the hearing. After argument had concluded, when judgment was reserved, the applicant filed a supplementary written submission, without leave. The respondents objected to the filing of the submission. In Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 257-258, Mason J indicated that, at least in the High Court, the filing of supplementary written submissions, after oral argument, without leave having been given, was impermissible. I would not regard this conduct as appropriate in this Court unless there was some sound reason to justify it. The applicant’s supplementary submission concerned a determination, which was allegedly made under s 208(1) of the Act after the hearing of this proceeding. It was not the subject of evidence. For the reasons that appear below, the specific content of a particular determination, if lawfully made under s 208(1), has little, if any, bearing on the questions of constitutionality raised in this case. There was no challenge here to the lawfulness of any determination under s 208(1) of the Act.
The applicant’s submissions
12 In written contentions, the applicant referred to Air Caledonie International v The Commonwealth [1988] HCA 61; (1988) 165 CLR 462 ("Air Caledonie") in support of his submissions that the Migration Reform Act 1992 (Cth), which introduced s 209 into the Act, was contrary to s 55 of the Constitution, being a law imposing taxation and dealing with other matters; and, further, that the Migration Reform Act 1992 (Cth) was a law with respect to the acquisition of property otherwise than on just terms and, by reason of s 51(xxxi), was beyond the legislative power of the Commonwealth.
13 Referring to Matthews v The Chicory Marketing Board (Victoria) [1938] HCA 38; (1938) 60 CLR 263 ("Matthews") at 276 per Latham CJ, the applicant contended that s 209 of the Act created a "charge for costs of detention [that] has the positive characteristics of a tax", because it was exacted by the Commonwealth for public purposes, including:
the purpose of the Commonwealth in implementing a scheme for the compulsory detention of non-citizens unlawfully in Australia and the purpose of deterring the arrival in Australia of ‘unlawful non-citizens’. Alternatively, the public purpose is to recoup to the Commonwealth the cost of so detaining unlawful non-citizens.
Further, as the applicant noted, "[t]he funds raised by the charge must form part of Consolidated Revenue: see Constitution, section 81. By section 215 [of the Act], the charge is enforceable by law."
14 Section 209 could not, so the applicant argued, be supported as a "payment for services rendered". Referring to Air Caledonie, The General Practitioners Society in Australia v The Commonwealth [1980] HCA 30; (1980) 145 CLR 532 ("General Practitioners") and Harper v Victoria [1966] HCA 26; (1966) 114 CLR 361 ("Harper v Victoria"), the applicant accepted that payments for services under legal or practical compulsion "do not have the character of taxation, provided they do not exceed the value of the services", because "[p]roperly understood, such charges are for services necessarily incidental to an undertaking entered into voluntarily by the chargee and in respect of which the chargee obtains some benefit". By contrast, as regards s 209 of the Act, there was "no element of voluntarism". In written submissions, the applicant said:
A person does not choose to go into detention. It is a situation imposed by compulsion of law. There is no right or advantage or access to benefit. There is no undertaking of the detainee to which the charge is incidental. Rather, the charge is an aspect of a policy of the Commonwealth. The costs the Commonwealth seeks to recoup are incurred in the furtherance of that policy.
As an incident of that policy, the Commonwealth takes unlawful non-citizens into mandatory detention. By so doing, the Commonwealth comes under a duty of care to those persons, part of which is an obligation to maintain them, for example by way of food and accommodation and medical services. The character of the expenditure in respect of maintaining those persons is not expenditure to provide services. It is expenditure to discharge an obligation of the Commonwealth which arises only from the policy of the Commonwealth.
15 Referring to s 4, which set out the objects of the Act, counsel for the applicant emphasised that detention was part of the regulation of the entry of non-citizens into Australia, which was carried out on behalf of the community at large. Counsel added that the provision of accommodation and the other requisites of daily living were necessarily ancillary to that detention.
16 The applicant submitted, in the alternative, that the costs of detention necessarily included costs "in the nature of maintaining the security of the detention"; and that such costs could not fairly be said to constitute "services to a detainee". Also in oral submissions, counsel for the applicant referred to Air Caledonie and Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; (2000) 202 CLR 133 ("Airservices") and maintained that, in order for there to be a payment for services, there must be some discernible relationship between the amount levied and the value to the detainee of the services rendered to him or her. According to the applicant, there was no relevant relationship in the case of s 209 because detention could not be a service to the detainee within the ordinary meaning of that word or as explained in the authorities. According to the applicant’s counsel, there was no nexus between the ability to make an application for a substantive visa and the fact of detention. Counsel submitted that there was, under the Act, no rational connection between incurring detention costs on the one hand and the pursuit of a privilege of receiving a visa on the other. In relation to applications for protection visas, counsel submitted that applicants for such visas were exercising a right conferred by the Act and under international law; and it could not be said that the pursuit of those rights was itself a privilege for which they paid by paying the costs of their detention. As counsel noted, s 209 did not distinguish between detainees on the basis of the visas sought.
17 Further, according to the applicant, since the purpose of s 209 was to compensate the Commonwealth for its outgoings to a third party that maintained the immigration detention centres, the consequence was that "any payment made by a detainee ... to the Commonwealth pursuant to section 209 does not have the character of payment for services rendered to or at the direction of the detainee by the Commonwealth." At the hearing, counsel for the applicant also submitted that "what section 209 is about is a general revenue raising provision as an incident of government policy to regulate entry into the country".
18 Finally, the applicant denied that the "charge", as he called it, had any special character that deprived it of the character of taxation, since it was not a fine or a penalty. Nor did it amount to a recoupment of costs in respect of a service, benefit or privilege, the detainee not being in receipt of any relevant advantage. Since the Migration Reform Act 1992 (Cth) dealt with matters other than the charge, it was not an effective exercise of the legislative power of the Commonwealth and any charge purportedly imposed under s 209 of the Act was unlawful.
19 In connection with s 51(xxxi), the applicant submitted, in written contentions, that "[t]he demand issued pursuant to section 209 of the Act ... amounts to an acquisition of property from the Applicant". The applicant contended that the services rendered to him in detention "were of such a nature as to be worthless". Accordingly, so he said, "the Commonwealth’s acquisition of property as compensation for worthless services is an acquisition on other than just terms." Referring to Minister of State for the Army v Dalziel [1944] HCA 4; (1943) 68 CLR 261 ("Dalziel") at 284-285 per Rich J, Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349 per Dixon J, Poulton v The Commonwealth [1952] HCA 70; (1953) 89 CLR 540 at 573 per Fullagar J, Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ, and Victoria v The Commonwealth [1995] HCA 45; (1996) 187 CLR 416 at 558-559 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ, the applicant maintained that his property, being money, was acquired under compulsion, and the acquisition was unjust because he was required to pay for his own incarceration.
20 At the hearing, counsel for the applicant submitted that s 51(xxxi) grants a power to acquire property on just terms for purposes within power and, with some exceptions, abstracts the acquisition power from other powers. Money was, he submitted, property for these purposes. Referring to Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 ("Mutual Pools") at 179 per Brennan J, 186-187 per Deane and Gaudron JJ, and 219-220 per McHugh J, he acknowledged that some acquisitions of property were not within s 51(xxxi), especially where the fact of acquisition was a necessary or characteristic feature of the means to achieve an objective that was within another head of power. The acquisition effected by s 209 did not, he contended, fall within this class unless it was a tax.
21 If not a tax, counsel for the applicant submitted that the acquisition was not on just terms because the detainee did not, by virtue of his or her detention, receive anything of worth for which he or she could be required to pay. Counsel added that, in order to justify the acquisition of property, there must either be the provision of just terms; or there has to be something in the nature of the acquisition which would make it incongruous for it to be supported by just terms; "or it has to be a direct expression of an acquisition power which is so closely referable to the objects of an Act that it would be inconsistent with the objects of the Act to require just terms". Counsel maintained that the notion that a person pay for his own incarceration offended reason and experience; and that the value of incarceration to the detainee was zero. He contended that "[t]o ask a person to pay the proportionate cost of something which has no value to them at all is to acquire property on terms that are not just".
22 In a supplementary memorandum, the applicant stated:
At the conclusion of the submissions in this matter, the Court invited counsel on both sides to research the question whether any other countries impose a liability on a person for that person’s detention.
Our researches have not revealed any example of a country which currently imposes such a liability, apart from Australia.
There is however a historical precedent. In Nazi Germany the family of a person detained and executed in a concentration camp was billed for the person’s detention and execution. An example of such bill is attached.
In relation to this submission, see [38]
below.
The respondents’ submissions
23 In written submissions, the respondents contended that, when considered in its statutory context, s 209 of the Act can be seen to provide for a charge to recoup the costs of detaining a non-citizen from that non-citizen where he or she has, without permission granted in accordance with Australian law, entered into or remained in Australia; and, as a consequence, he or she has been held in detention under the requirements of valid laws of the Commonwealth. Referring to Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7 per Kitto J, The Grain Pool of Western Australia v The Commonwealth [2000] HCA 14; (2000) 202 CLR 479 at [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, and Re Maritime Union of Australia; ex parte CSL Pacific Inc [2003] HCA 43; (2003) 214 CLR 397 at [35] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, counsel submitted that the character of the law under challenge must be determined by reference to "what it provides in its legislative context and not by reference to the particular circumstances of the applicant’s case". Accordingly, the affidavits on which the applicant relied were, so the respondents submitted, inadmissible in so far as they related to the conditions in immigration detention.
24 The respondents accepted that the impost exacted by s 209 had the positive attributes of a tax that were identified in Matthews. That is, the respondents accepted that the impost was a compulsory exaction of moneys by the Commonwealth, for public purposes, and enforceable by law. Referring to Air Caledonie at 467, counsel for the respondents submitted at the hearing that the exaction imposed by s 209 fell within the class of exactions that were not taxes although they had all the positive attributes of a tax mentioned by Latham CJ in Matthews.
25 In written submissions, the respondents contended that the exaction was a "fee for services" within the meaning of s 53 of the Constitution and was not taxation within the meaning of s 55 of the Constitution. In support of this submission, the respondents contended that the exaction was "a charge for an activity undertaken by or on behalf of the Commonwealth specifically relating to the non-citizen on whom the exaction is imposed, and in circumstances where that activity is a consequence required by statute of the non-citizen’s actions in entering into and/or remaining in Australia without a visa".
26 The purpose and effect of s 209 was, so the respondents submitted, to recoup the costs attributable to the detention of non-citizens and no question of a wider "revenue raising" purpose or effect arose. Referring to Airservices at [89], [92]-[93] per Gleeson CJ and Kirby J, [135]-[136] per Gauldron J and [290]-[298] per McHugh J, Air Caledonie at 467 and 469-470, General Practitioners at 561-562 per Gibbs J, and Harper v Victoria at 371 per Barwick CJ, 377 per McTiernan J, 378 per Taylor J, 379 per Menzies J and 382 per Owen J, the respondents submitted that, whilst a discernible relationship between the fee charged and the value of the service provided is required to constitute a "fee for services" within s 53, this relationship is found in the nexus between the cost to the Commonwealth of detaining a person and the daily maintenance amount determined in accordance with s 208 of the Act. Referring to General Practitioners at 562 per Gibbs J, the respondents submitted that the fact that detention under s 189 is mandatory does not alter the characterization of the liability created by s 209 as a fee for services.
27 At the hearing, counsel for the respondents relied first on the submission outlined below -- though not a fee for services, the exaction was not a tax -- and argued, in the alternative, that the charge was a fee for services. At the hearing, the respondents’ fee for services submission was that s 209 imposed "a fee for [a] service, the service being the detention of a person as the price of permitting the person to remain in Australia". In support of this proposition, counsel for the respondents said:
These are persons who according to Australian law do not have a right to enter Australia and having entered, do not have a right to remain in Australia. The statute provides that they must be detained and it is plain from s 196 that the end or purpose of the detention is removal or the grant of a visa. So the detention is for a particular purpose. It is a detention which will facilitate an application for a visa inside Australia.
Referring to Air Caledonie, Airservices at [135]-[136] per Gaudron J, Logan Downs Pty Ltd v Queensland [1977] HCA 3; (1977) 137 CLR 59 ("Logan Downs") at 63 per Gibbs J, and Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 336 per Dawson, Toohey and McHugh JJ, counsel reiterated the respondents’ written submissions, saying that, on this analysis, there was a discernible relationship between the liability that s 209 imposed and the cost or value of the service provided. Referring to ss 207 and 208 of the Act, as well as Airservices at [89] per Gleeson CJ and Kirby J, [135] per Gaudron J, and [290]-[291] per McHugh J, the respondents’ counsel submitted that there was a direct, discernible relationship between the service and the cost to the Commonwealth of providing the service; and that it was immaterial that the user was compelled to use the service.
28 In written submissions and at the hearing, the respondents maintained that, even if the liability to pay the costs of detention imposed by s 209 was not properly characterized as the imposition of a fee for services, it did not follow that s 209 imposed a tax. The imposition of that liability would, so the respondents contended, be a valid imposition of a fee for the costs associated with the non-citizen’s continued presence in Australia even though the non-citizen did not hold permission to remain in the migration zone. Referring to Air Caledonie at 468-469 and Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 ("Luton v Lessels") at [13] per Gleeson CJ, [79] per McHugh J (agreeing with Gleeson CJ), [117]-[120] per Kirby J and [177] per Callinan J, the respondents contended that the imposition of the liability would be justified on the basis that it was a charge imposed on the unlawful non-citizen in respect of his or her detention with no revenue-raising purpose.
29 Counsel for the respondents noted that the Court in Air Caledonie at 468-469 distinguished the constitutional effect of a fee exacted only where the arriving passenger was not an Australian citizen from a fee exacted in respect of all arriving passengers, regardless of their Australian citizenship. According to the respondents, the law under consideration in the present case was relevantly different from the provisions considered in Air Caledonie, because the exaction fell only on non-citizens who entered or remained in Australia without permission to do so. The charge was, so counsel for the respondents said, to be seen as "the price of being permitted to remain in Australia, no doubt while being detained, pending either removal from Australia, or the grant of a visa". It was, he said, a special type of exaction but not a tax. Counsel emphasised that the charge was not exacted as "the price of having the procedures in Australian law applied [but] as the price of being permitted, notwithstanding the lack of a visa, to remain in Australia while those procedures are being applied". Counsel further submitted that the charge was part of "the terms on which Australia will permit a person to remain in Australia for a particular purpose – the purpose being either to remove himself or herself from Australia or to obtain a visa". He maintained that "[t]he very fact that it accumulates from day to day so that in effect the detainee is liable to pay for each day that he or she remains in detention assists ... in the characterisation" espoused by the respondents.
30 The respondents submitted that there was no line to be drawn between the security-related costs of detaining a non-citizen and other costs. According to the respondents, on their proper construction, ss 207, 208 and 209 authorise the recovery of all the costs of detaining a person at the place and during the period in question. In written contentions, the respondents said that, even if, as the applicant contended, security-related costs were included in the costs of detention for which a detained non-citizen is liable under s 209, there was no reason to assume that those costs would not be part of the services provided to the non-citizen. On the contrary, the respondents submitted:
The detained non-citizen’s presence in the migration zone is unlawful; detention of that non-citizen is mandatory; the cost of protecting the non-citizen while in detention, of protecting the property in which the non-citizen is detained and the staff employed to provide services to the non-citizen are properly described as part of or incidental to the provision of services (such as accommodation, food and medical care) to the non-citizen.
31 At the hearing, counsel for the respondents accepted that the daily amount for maintenance incorporated security costs, "to the extent that the security is incidental to maintaining the person at that place". Counsel further submitted that, notwithstanding the use of the word "or" immediately before paragraph (a)(ii) of s 207 of the Act, what might be called the transportation costs, mentioned in paragraph (a)(i) of the definition of "costs" in s 207, were to be characterized as transportation costs that were "incidental to detention". There were, counsel submitted, "implicit limitations in the language used in the definition".
32 In the alternative, referring to s 15A of the Acts Interpretation Act 1901 (Cth), Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 378 per Kitto J and General Practitioners at 562 per Gibbs J, the respondents submitted that s 209 fell to be construed subject to the Constitution, including the first paragraph of s 55 of the Constitution. So construed, s 209 authorises only the recovery of an amount that is not a tax, and is valid. For the reasons appearing below, it is unnecessary to do more than note this submission. Referring to the applicant’s submission about the recoupment of payments to the third parties who maintained the detention centres, the respondents submitted that the circumstance that the Commonwealth contracts with privately owned companies to perform some or all of the relevant services has no bearing on the validity of s 209. At its highest, so the respondents submitted, this circumstance could only raise factual questions irrelevant to the determination of the validity of s 209 by reference to s 55 of the Constitution. For the reasons appearing below, I accept this submission.
33 In relation to s 51(xxxi) of the Constitution, the respondents submitted that, where property has been acquired for services already rendered, for activities already performed, or for access to facilities already provided, the notion that fair compensation must be provided for the debt or money is incongruous. The respondents accepted that, according to current authority, money is property for the purposes of s 51(xxxi) of the Constitution: see Australian Tape Manufacturers Association Ltd v The Commonwealth [1993] HCA 10; (1993) 176 CLR 480 ("Australian Tape Manufacturers") at 509 and 511 per Mason CJ, Brennan, Deane and Gaudron JJ. Referring to Mutual Pools at 171 per Mason CJ, 219-220 per McHugh J and 186-187 per Deane and Gaudron JJ, the respondents submitted that s 51(xxxi) of the Constitution has no operation where, by a law of the Parliament, the Commonwealth compulsorily acquires property in circumstances where (as here) the notion of fair compensation to the former owner of the property is irrelevant or incongruous. Section 209 was not, so the respondents submitted, a law with respect to the subject matter of s 51(xxxi) of the Constitution; rather, it was a law with respect to " aliens" within s 51(xix).
34 At the hearing, counsel for the respondents submitted that, "[w]here the Commonwealth provides a service and imposes a charge for the provision of that service, [it is] not part of the evaluation of its validity to determine whether the service constitutes full value or a fair value for the liability". Put another way, where a debt "is created as the price of the provision by the Commonwealth of services of the nature [in question]":
[a] notion that the imposition of a liability should carry with it an obligation to provide fair compensation, which is essentially what just terms requires, is ... incongruous, otherwise there would be no substance to the liability which is imposed.
That is, where a law directs the detention of unlawful non-citizens in the migration zone, as the Act does, "[i]t would be incongruous to claim that the Commonwealth could only attach liability to the person detained consistently with s 51(xxxi)" of the Constitution. Referring to Mutual Pools at 171 per Mason CJ and 179-180 per Brennan J, counsel for the respondents submitted that the law in question was a means of adjusting competing claims as between the Commonwealth and an unlawful non-citizen, and further submitted that such adjustment was appropriate and adapted to the fulfilment of the purpose to be served by the Commonwealth law: see Mutual Pools at 179-180 per Brennan J.
35 In the alternative, the respondents contended, in written submissions and at the hearing, that "just terms" were provided for the acquisition of the applicant’s property in the form of the provision of detention services and facilities. Whether or not there were "just terms" depended, so the respondents submitted, on the terms and operation of s 209 and its associated provisions (ss 207 and 208). It did not depend, so the respondents said, "on the particular circumstances of immigration detention experienced by one non-citizen or another". Referring to Dalziel at 291 per Starke J and Grace Bros Pty Ltd v The Commonwealth [1946] HCA 11; (1946) 72 CLR 269 ("Grace Bros") at 291-292 per Dixon J and 295 per McTiernan J, the respondents observed that the "terms" for an acquisition were primarily for Parliament to determine. That is, said the respondents, the terms of the acquisition are, within reason, matters for legislative judgment and discretion. In the case under consideration, the Parliament determined that the appropriate compensation to be provided for the acquisition of the property (through the creation of a debt) from a non-citizen is the maintenance of the non-citizen. Citing The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 289 per Deane J, the respondents submitted that:
The role of the courts is to determine whether that compensation might reasonably be regarded as just; "[I]f that compensation satisfies the requirement of ‘just terms’, the Court will not declare the terms unjust and the law in excess of power for the reason that the Court entertains an opinion that other terms would have been fairer or more appropriate".
Referring to Grace Bros at 290 per
Dixon J, Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 57; (1948) 75 CLR 495 at 569
per Dixon J and Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493 at [48] and [54] per
Gaudron and Gummow JJ, the respondents submitted that the relevant enquiry is
"whether the law amounts to a true attempt
to provide fair and just standards of
compensating ... the individual considered as an owner of property,
fair and just
as between [the owner] and the government of the country". In the
present case, according to the respondents, an affirmative answer
should be
given.
36 Section 208(1) of the Act made it clear, so the respondents maintained, that the money payable under the statutory debt was acquired in exchange for "the maintenance of a non-citizen ...", with the quantum of the statutory debt not exceeding, according to s 208(2), the cost of detaining the non-citizen at the relevant place in the relevant period. These provisions ensured, so the respondents contended, that the acquisition of property effected by s 209 of the Act was an acquisition on "just terms" within s 51(xxxi).
37 In their supplementary submission filed after the hearing (pursuant to leave), the respondents stated:
On the basis of the limited research undertaken by the Respondent there are no current examples of similar legislative provisions.
In relation to the Applicant’s submission, the Respondent submits that:
3.1 the example given is not responsive to the question asked by the Court.
3.2 the example is not analogous to the imposition of liability to pay the costs of detention under Division 10 of Part 2 of the Migration Act 71958.
3.3 the example obscures rather than illuminates the issues before the Court in the present case.
38 As the subsequent discussion shows, the matters for determination in this proceeding can be determined without any consideration of the regimes that govern the reception elsewhere of non-nationals seeking to enter or remain in a country other than their own without the permission of the receiving country. It may be observed, however, that there has been some scholarly examination of the State procedures and practices relating to the detention of asylum seekers: see, e.g., Guy Goodwin-Gill, "Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection", a paper prepared at the request of the Department of International Protection, UNHCR, Global Consultations, October 2001; and also Lawyers Committee for Human Rights, "Refugees Behind Bars: The Imprisonment of Asylum Seekers in the Wake of the 1996 Immigration Act", August 1999, focusing on the operation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 8 USC.
CONSIDERATION
A law imposing taxation
39 Section 16 of the Migration Reform Act 1992 (Cth) introduced Div 5A of Pt 2, which inserted s 209 (originally s 66 of the Act) and associated provisions into the Act as it stood at the relevant time. The respondents argued that, if s 209 of the Act were a law imposing taxation, then, applying the statements of the Court in Air Caledonie at 471-472, s 16 of the Migration Reform Act 1992 (Cth) would be ineffective to amend the Act by adding s 66 (now s 209) to its provisions. I have some doubts about the applicability of the analysis in Air Caledonie, but, in view of the conclusion I have reached, it is unnecessary to explore the matter further.
40 Section 55 of the Constitution, which must be read with ss 53 and 54, provides that:
Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.
The High Court of Australia has recently discussed the constitutional context and effect of s 55: see, for example, Permanent Trustee Australia Limited v Commissioner of State Revenue [2004] HCA 53; (2004) 211 ALR 18 ("Permanent Trustee") at [38]-[71] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Luton v Lessels at [56]-[58] per Gaudron and Hayne JJ and [96]-[103] per Kirby J; and Air Caledonie at 468. There is little to be gained by repeating the discussion.
41 The immediate question is whether s 209 should be characterized as a law imposing taxation for the purposes of s 55 of the Constitution. Whether a law is a law imposing taxation or a law of another description such as, for example, a law for the payment of fees for services, a licence, or a privilege, is essentially one of characterization: see, for example, Luton v Lessels at [10] per Gleeson CJ and [104] per Kirby J. The Constitution, in s 53, contrasts laws imposing taxation with laws for the payment of fees for licences or services or providing for fines or other pecuniary penalties. The latter are not laws imposing taxation, although they too are laws providing for the payment of money. There is, however, no bright line separating the laws of the one kind, which impose taxation, from the laws of the other, which do not: compare Airservices at [88] per Gleeson CJ and Kirby J; and, e.g., Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529, where a majority of the Court held that a fee for a victualler’s licence was a tax in the nature of an excise. The question of characterization is to be determined by reference to the operation of the Act.
42 Section 209 is one of a number of provisions in Div 10 of Pt 2 of the Act that render a non-citizen or carrier liable for the costs of the non-citizen’s detention, removal or deportation. Division 10, in which s 209 falls, is entitled "Costs etc. of detention, removal and deportation". In particular, s 209 provides:
Subject to section 211, a non-citizen who is detained is liable to pay the Commonwealth the costs of his or her detention.
Section 211, which allocates the responsibility for the costs of a non-citizen’s spouse and children, may be put aside for present purposes. The parties did not address any argument to that provision.
43 Section 207 defines "costs" as being:
(a) in relation to a non-citizen’s detention:
(i) the cost to the Commonwealth of transporting the non-citizen and a custodian of the non-citizen between a place where the non-citizen is detained and:
(A) another place where the non-citizen is to be detained; or
(B) a place from which the non-citizen is to be removed or
deported; or
(C) a place at which the non-citizen is to be released from detention (whether or not the person is to be arrested, or taken into custody under another law); or
(ii) the daily maintenance amount for each day of the non-citizen’s detention; or
(b) in relation to a non-citizen’s removal or deportation, the fares and other costs to the Commonwealth of transporting the non-citizen and a custodian of the non-citizen from Australia to the place outside Australia to which the non-citizen is removed or deported.
Section 207 further provides that:
daily maintenance amount, in relation to a non-citizen and a day and place, means the amount determined under section 208 as the daily maintenance amount for non-citizens detained at that place in the period in which the day falls.
44 Section 208(1) provides that the Minister may determine in writing a daily amount for the maintenance of a non-citizen detained at a specified place in a specified period. This amount is limited by subs 208(2), which provides that an amount determined pursuant to subs (1) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.
45 Besides the costs of detention, a non-citizen who is removed or deported (other than an unlawful non-citizen who came to Australia on a criminal justice visa) is also liable to pay the Commonwealth the costs of his or her removal or deportation (s 210). Sections 211 and 212 make provision for the costs of detention, removal and deportation of family members. In certain circumstances, a carrier (as defined in s 207) of a non-citizen may be required to pay the costs of the non-citizen’s detention, removal or deportation (s 213). If more than one person is liable to pay the relevant costs, then, under s 214, they are jointly and severally liable to pay those costs. The costs payable by a person to the Commonwealth under s 209 or any other provision in Div 10 of Pt 2 may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction (s 215).
46 Part 2 of the Act, which is headed "Control of arrival and presence of non-citizens", also provides for the detention of unlawful non-citizens. In the Act, a "non-citizen" is a person who is not an Australian citizen (s 5(1)). The Act distinguishes between "lawful" and "unlawful" non-citizens. A lawful non-citizen is, relevantly, a non-citizen in the migration zone (as defined in s 5(1)) who holds a visa that is "in effect" (s 13). A visa is a permission granted to a non-citizen by the Minister to enter and remain in Australia (s 29). An unlawful non-citizen is a non-citizen in the migration zone who is not a lawful non-citizen (s 14). That is, an unlawful non-citizen is a non-citizen in the migration zone who does not have the Minister’s permission to enter or remain in Australia.
47 Sections 189 and 196, which are critical to the operation of Pt 2 of the Act, require the detention of unlawful non-citizens in the migration zone. In order to appreciate the effect of s 209, the effect of ss 189 and 196 must be borne in mind. Section 189 requires an officer (as defined in s 5(1)) to detain a person in the migration zone if the officer knows or reasonably suspects that the person is an unlawful non-citizen (s 189(1)). Section 5(1) defines the word "detain" as meaning to take into immigration detention; or keep, or cause to be kept, in immigration detention; and the expression "immigration detention", relevantly, as meaning being held in a detention centre established under the Act. Under the Act, the Minister, on behalf of the Commonwealth, may cause detention centres to be established and maintained (s 273).
48 Section 196 of the Act, dealing with the period of detention, provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is granted a visa (including a bridging visa), or removed (under ss 198 or 199) or deported (under s 200). For present purposes, s 199 (dealing with the family of an unlawful non-citizen who is to be removed) and s 200 (dealing with criminal deportation) may be put to one side. Amongst other things, s 198 of the Act provides, in subs (1), that, as soon as reasonably practicable, an officer must remove an unlawful non-citizen who asks the Minister in writing to be so removed and, in subs (6), that, as soon as reasonably practicable, an officer must remove an unlawful non-citizen who is a detainee if the non-citizen has made a visa application and the application has been finally determined in a manner adverse to the applicant. A "detainee" is a person detained (in immigration detention) and "remove" means remove from Australia: see s 5(1).
49 The Act thus provides for the mandatory detention of an alien who has entered Australia without permission or whose permission to remain in Australia has ended; and it provides that such detention shall continue until the alien is granted such, or such further, permission to enter and remain in, or is removed or deported from the country. In referring to an alien who lacks relevant permission as an unlawful non-citizen, the Act does "not refer to any breach of a law which expressly prohibited the conduct of entering or remaining in Australia without permission": Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099; (2004) 208 ALR 124 ("Al-Kateb") at [208] per Hayne J. The exaction under s 209 of the Act is, therefore, not a fine or a penalty because, amongst other things, the liability to pay does not arise from any failure to discharge any antecedent obligation.
50 The High Court upheld this scheme of mandatory detention in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 ("Lim"). In a joint judgment, Brennan, Deane and Dawson JJ said at 32:
It can ... be said that the legislative power conferred by s.51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch.III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.
Mason CJ agreed with this part of the
joint judgment: see Lim at 10.
51 In Al-Kateb, a majority of the High Court also held that ss 189, 196 and 198 (discussed above) validly authorised the detention of an alien even though it was unlikely that the alien would be removed from Australia in the reasonably foreseeable future. After describing the mandatory detention provisions as "providing for detention for the purposes of processing any visa application and removal" (at [225]), Hayne J (with whom Heydon J agreed) said, at [245]:
A law which permitted or required detention for the purpose of effecting the removal of an unlawful non-citizen from Australia would be a law with respect to aliens and a law with respect to immigration. So much follows from Koon Wing Lau. The provisions now in question, however, are not confined to providing for detention for the purpose of removal. An unlawful non-citizen who is seeking the grant of a visa must be detained. Nonetheless, in that operation, too, the provisions can be seen to be laws with respect to aliens and laws with respect to immigration. That is, in so far as the provisions now in question provide for detention both during the period in which a non-citizen’s application for a visa remains unresolved, and thereafter for the purpose of removing the non-citizen from Australia, they are laws with respect to aliens and with respect to immigration.
52 Referring to the joint judgment in Lim, Hayne J added, in Al-Kateb at [255]:
I would not identify the relevant power in quite so confined a manner as is implicit in the joint reasons in Chu Kheng Lim. The relevant heads of powers are ‘aliens’ and ‘immigration’. The power with respect to both heads extends to preventing aliens entering or remaining in Australia except by executive permission. But if the heads of power extend so far, they extend to permitting exclusion from the Australian community -- by prevention of entry, by removal from Australia, and by segregation from the community by detention in the meantime. [Emphasis, in bold, added]
See also Al-Kateb at [45]-[48] per McHugh J and [291] per Callinan J.
53 In Behrooz v Secretary of the Department of Immigration and Multicultural Indigenous Affairs [2004] HCA 36; (2004) 78 ALJR 1056; (2004) 208 ALR 271 ("Behrooz") at [18], Gleeson CJ summed up the High Court’s understanding of the detention provisions, when he said that "[t]he detention which the Act contemplates, authorises and requires is detention of unlawful non-citizens (aliens) pending processing of their visa applications or deportation".
54 As Al-Kateb demonstrated, in some cases, aliens have been detained for lengthy periods of time. This is because, as Gleeson CJ said in Behrooz at [18]:
Visa applications are dealt with administratively in the first instance, but are subject to a potentially lengthy process of administrative and judicial review. Cases regularly come before [the High] Court in circumstances where [the High] Court is invited to undertake a fifth level of decision-making in respect of a visa application. Some visa applicants hold temporary visas, and are not in immigration detention, but those who do not have visas may be detained for a substantial period while their litigation proceeds.
See also Al-Kateb at [1] per Gleeson CJ. Since the costs of an alien’s detention are calculated on a daily basis (ss 207 and 208), the costs payable by him or her under s 209 of the Act can, in some cases, be high relative to the alien’s means.
55 In deciding whether, as a matter of characterization, s 209 of the Act is a law imposing taxation for the purposes of s 55 of the Constitution, it is necessary to consider the authorities that must govern the judgment of this Court. It is to them that I now turn.
56 It was common ground that the exaction imposed by s 209 of the Act was a compulsory exaction by a public authority, for public purposes, and enforceable by law. The exaction possesses, therefore, all the positive attributes of a tax that Latham CJ identified in Matthews at 276. It does not follow from this, however, that the exaction is a tax, because an exaction imposed by law may possess all these attributes and not be a tax. If, for example, a charge were properly characterized as a fee for services, then the charge would not be a tax, though a compulsory levy by a public authority, for a public purpose and enforceable by law.
57 As we have seen, the respondents contended, and the applicant denied, that the exaction under s 209 was a payment for services rendered. As the decision in Air Caledonie exemplifies, in order to be a payment for services, there must be some actual service or services provided to the person from whom the payment is exacted, or at his or her direction or request: see, for example, Air Caledonie at 467 and 470; Airservices at [132] per Gaudron J; and Logan Downs at 63 per Gibbs J. In Air Caledonie, the Court held that a fee was a tax because at least some of the persons from whom it was exacted did not receive any service in exchange. That is, the High Court held that a fee payable by passengers arriving in Australia on overseas flights (and collected by the airlines) was not a fee for services in so far as it related to Australian citizens. The Court said, at 470:
At least in a case of the ordinary Australian citizen returning by air from overseas, the description of the purported impost ... as a ‘fee for immigration clearance of that passenger’ did not suffice to make the impost a ‘fee for services’ in any relevant sense. ... [S]uch a citizen had, under the law, the right to re-enter the country, without need of any Executive fiat or ‘clearance’, for so long as he retained his citizenship. The subjection of such a citizen to administrative procedures at the point of entry ... may be necessary, in the public interest, to enable the entry of non-citizens to be prevented or controlled and to enable proper administrative records and procedures to be kept or followed in relation to the arrival and departure of citizens and non-citizens alike. A requirement that a returning citizen submit, in the public interest, to the inconvenience of such administrative procedures at the end of a journey cannot, however, properly be seen as the provision or rendering of ‘services’ to, or at the request or direction of, the citizen concerned. Nor is it possible to find in [the Act] any identification of particular services provided or rendered to the individual passenger for which the impost could relevantly be regarded as a fee or quid pro quo.
58 Earlier in its reasons for judgment, the Court noted (at 469) that the position may have been otherwise if the fee had been demanded only from non-citizens, because:
[I]t would have been arguable that, regardless of whether it was a ‘fee for services’, it was not a tax. In that event, and notwithstanding the countervailing analogy of a customs duty which is clearly a tax, there might have been some force in an argument to the effect that it was to be seen as a charge imposed upon the passenger for the privilege of entering Australia or as a licence fee and that the requirement that the airline operator collect the fee (and pay the amount of it to the Commonwealth if not collected from the passenger) could not convert it into a tax. [Emphasis added]
59 In contrast to Air Caledonie, in Airservices, the High Court held that the legislation under challenge imposed the charges in question on airline operators in return for the provision of services and facilities by the Civil Aviation Authority ("CAA"). Hence, the charges did not amount to taxation. Gleeson CJ and Kirby J explained at [87]:
By hypothesis, we are here concerned with charges for services, and facilities, provided by the CAA to Compass. This is not a case like Air Caledonie International v The Commonwealth where there was an issue as to whether the compulsory exaction by a public authority could properly be described as a fee paid for the provision by the public authority of some service. A number of cases in which it was pointed out that no ‘particular’ service was provided, for which an exaction could be regarded as a charge or fee, were cases in which either no service at all was provided to the person required to make the payment, or there was a colourable attempt to represent that the exaction was in consideration for services. [Citations omitted]
60 The Court held in Airservices that the charges exacted from airline operators were reasonably related to the expenses incurred in relation to the matters to which the charges pertained: Airservices at [92] per Gleeson CJ and Kirby J; [140] and [142] per Gaudron J; [156] per McHugh J; [461], [479] per Gummow J; and [509], [516] per Hayne J. This was important because, in order to constitute a payment for services, a charge must be reasonably capable of being characterized as a payment for the particular service or services in question: see, for example, Air Caledonie at 467 and 470; Airservices at [132] per Gaudron J; and Logan Downs at 63 per Gibbs J. Moreover, in order to constitute a payment for services, it is not sufficient that the charge be levied to defray the expenses of an authority charged with the performance of functions which benefit the class of persons from whom the charge is exacted: see, for example, Airservices at [133] per Gaudron J; Parton v Milk Board (Victoria) [1949] HCA 67; (1949) 80 CLR 229 at 258-259 per Dixon J; and Swift Australian Co (Pty) Ltd v Boyd Parkinson [1962] HCA 41; (1962) 108 CLR 189 at 200 per Dixon CJ (Kitto and Windeyer JJ agreeing), 222 per Menzies J (Taylor J agreeing).
61 It does not seem to me that the requirement in s 209 of the Act that a detainee pay "the costs of his or her detention" can be fairly characterized as "a payment for services rendered", as the authorities have explained this concept. In the present context, the word "service" connotes, as the authorities recognise, an act of helping or benefiting the person to whom the service is rendered: compare Oxford English Dictionary "service" IV. Apart from the transportation costs referred to in par (a)(i) of the definition of "costs" in s 207, the costs of a detainee’s detention consist of the daily maintenance amount for each day of the detainee’s detention, being the amount that the Minister determines under s 208 of the Act. Pursuant to s 208(1), the daily maintenance amount is the amount that the Minister determines for the maintenance of a non-citizen detained at a specified place in a specified period. By virtue of s 208(2), the determined amount is capped at the cost to the Commonwealth of detaining the person at that place in that period. There is, it must be acknowledged, an element of benefit to the detainee in the provision of food, accommodation, medical treatment and the like. But, as the respondent conceded at the hearing, the cost to the Commonwealth of detaining a person would extend to the cost to the Commonwealth of maintaining facilities in which a detainee is to be secured apart from the Australian community, pending a grant of permission to enter the Australian community or his or her removal from the country. Subsection 208(2) of the Act thus contemplates what is probably inherent in the expression "the costs of ... detention" in s 209. That is, "the costs of ... detention" that a detainee may be required to pay are not limited to the costs of his or her accommodation, food and other requisites of daily life, but extend to the costs of securing the detainee in a place in order that he or she is kept apart from the Australian community.
62 It may be arguable that a charge for the provision by the Commonwealth or some other public body of accommodation, food and other necessities of life would be a fee for services rendered to the detainee. Where, however, payment is required for costs that include the costs of holding the detainee in a place against his or her will, the payment cannot fairly be described as payment for a "service" to the detainee, or at his or her direction. The statutory regime of mandatory detention contemplates that detainees desire to join the Australian community and, in some cases, would join that community unlawfully, if not subjected to involuntary confinement. In this context, the requirement that a detainee pay for the costs of his or her involuntary confinement is not reasonably capable of being characterized as a payment for a particular service provided to the detainee, or at his or her direction or request, because any benefit is overborne by the circumstances in which it is conferred. I reject the respondents’ submission that the costs of securing a person from the Australian community are properly regarded as "incidental to the provision of services (such as accommodation, food and medical care) to the non-citizen". Such a proposition, if accepted, disregards the real force and effect of a mandatory detention regime.
63 This is not a case where those on whom the fee falls benefit from the regulation of an industry, or obtain a licence to pursue an occupation. In this regard, this case is not comparable with cases such as General Practitioners or Harper v Victoria. In General Practitioners, a statutory fee for the processing of a particular individual’s application to become an approved pathologist was held not to be a tax. In Harper v Victoria, the Court held that a fee, which was payable by egg owners required to present eggs for grading, and fixed by reference to the estimated expenditure for the grading, was not a tax but a fee for services "to defray the cost of those services": see 377 per McTiernan J, 378 per Taylor J, 379 per Menzies J and 382 per Owen J. In these cases, the person on whom the exaction fell obtained some direct or indirect benefit, in respect of which the payment was fairly referable.
64 I doubt that, as the respondent submits, the detention, in respect of which the costs are paid, "facilitate[s] an application for a visa inside Australia" (emphasis added). It is true that an alien in the migration zone without a visa must be in immigration detention when making an application for a visa. It does not follow from this, however, that the payment of the costs of detention is for services rendered to the alien. Separate fees are payable on applications for visas; and, in any case, a detainee must pay the costs of his or her detention, whether or not he or she is released upon the grant of a visa, or upon removal or deportation.
65 Further, it must be borne in mind that the costs of detention that a detainee is liable to pay pursuant to s 209 of the Act include the transportation costs referred to in par (a)(i) of the definition of costs in s 207. It does not seem to me apt to describe a detainee’s transportation from one place of detention to another, or to a place from which he or she is to be removed or deported as a "service" rendered to the detainee, even though the detainee is the subject of such action.
66 Payments for services rendered are not, however, the only exactions that resemble taxes but are not properly characterized as such. There are various other types of monetary exactions that are not taxes, although they have all the positive attributes of a tax referred to by Latham CJ in Matthews.
Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory obligation are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes.
Air Caledonie at 467; and see also Luton v Lessels at [10] per Gleeson CJ (McHugh J agreeing); and [50] per Gaudron and Hayne JJ.
67 There are numerous instances where an exaction resembles a tax but is not a tax. I referred earlier to General Practitioners (holding that a fee for an application to be an approved pathologist was not a tax). Another example is Browns Transport Pty Ltd v Kropp [1958] HCA 49; (1958) 100 CLR 117 ("Kropp") at 130, where the High Court held that a fee for a licence for the carriage of goods, though a compulsory and enforceable exaction of money by a public authority for a public service, was "simply a fee payable as a condition of a right to carry on a business".
68 Harper v Minister for Sea Fisheries demonstrates that it is not possible to state exhaustively what exactions are not taxes although they resemble taxes. In each case, the character of an exaction will depend on the operation of the statute that created it, including the statutory context in which it is imposed. This is evident in Harper v Minister for Sea Fisheries, for example, where the question of characterization depended on the particular provisions pursuant to which the exaction was created and the context in which the exaction was imposed. That is, the High Court decided in that case that a fee for the taking of abalone was not a tax in the nature of an excise, but a charge in the nature of a licence fee. Mason CJ, Deane and Gaudron JJ said, at 325, that the licence fee was:
... properly to be seen as the price exacted by the public, through its laws, for the appropriation of a limited public natural resource to the commercial exploitation of those who, by their own choice, acquire or retain commercial licences. So seen, the fee is the quid pro quo for the property which may lawfully be taken pursuant to the statutory right or privilege which a commercial licence confers upon its holder. It is not a tax.
Brennan J emphasised, at 332, that "[t]he only
compensation, if compensation it be, derived by the public for loss of the right
of fishing for abalone consists in the amounts required to be paid by holders to
obtain the abalone licences". His Honour concluded,
at 336, that the licence
fee was not a tax as the amounts payable were of "the same character as a charge
for the acquisition of
property".
69 The question of the character of an impost has arisen in a variety of statutory settings; and the authorities indicate that there are a number of matters to be borne in mind in answering it. First, cases such as Airservices illustrate that, if a charge has a close relationship to the cost to the provider of providing a service, or granting a valuable right or privilege, or supplying some such other thing, this relationship is indicative of the fact that the charge is not a tax: see Airservices at [90] per Gleeson CJ and Kirby J; and [291]-[298] per McHugh J. Equally, if the charge has some discernible relationship to the value of a service or grant of a right or privilege to the person on whom the impost falls, this relationship is also indicative of the fact that the charge is not a tax. For example, in Harper v Minister for Sea Fisheries at 336, Dawson, Toohey and McHugh JJ commented, that "the fact that it is possible to discern a relationship between the amount paid and the value of the privilege conferred by the licence, namely, the right to acquire abalone for commercial purposes in specified quantities" was "[m]ost important".
70 Conversely, the absence of a relationship between the amount to be paid and the value to the person on whom the impost is laid or the cost to the provider is indicative of a tax: see, for example, Northern Suburbs General Cemetery Reserve Trust v The Commonwealth [1993] HCA 12; (1993) 176 CLR 555 ("Northern Suburbs") at 568 per Mason CJ, Deane, Toohey, and Gaudron JJ and 588 per Dawson J. Thus, in Air Caledonie at 467, the Court said:
If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.
71 In summary, a discernible relationship between a charge and any benefit to which it is referable, measured by reference to either the cost to the provider or the value to the user, indicates that the charge is not a tax. The authorities do not, however, require that there be a direct relationship between a charge and a benefit, whether or not expressed by reference to cost or value. The authorities leave open the possibility that there may be a relationship sufficient to support such a characterization where there is a close relationship between the exaction and the cost to the provider, which is directly referable to the person on whom the exaction falls, even though the person does not receive a benefit of any value or any value commensurate with the cost to the provider (compare Harper v Victoria).
72 Further, if the absence of a discernible relationship between the charge and the cost to the provider or value to the user is indicative of a tax, so too is evidence of a revenue-raising purpose. In Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 599, for example, a fee for a licence to operate an oil pipeline was held to be a tax. It was "an enormous impost laid directly by the legislature on three specified pipelines" and was a means of raising revenue from the production of oil (at 647 per Wilson J). In Airservices at [91], Gleeson CJ and Kirby J said:
Not all taxation has as its primary purpose the raising of revenue; and some forms of taxation are notoriously inefficient means to that end. An objective of raising revenue is not, therefore, a universal determinant. Even so, the presence or absence of such an objective will often be significant.
See also Luton v Lessels at [13] per Gleeson CJ,
[120]-[121] per Kirby J, and [177] per Callinan J. Also in Airservices,
at [311], McHugh J said:
In Northern Suburbs General Cemetary Reserve Trust v The Commonwealth [(1993) [1993] HCA 12; 176 CLR 555 at 568-569], Mason CJ, Deane, Toohey, and Gaudron JJ answered the plaintiff’s argument that the law was not taxation because there was no revenue-raising purpose by identifying a revenue-raising purpose which could be discerned from the operative provisions of the statute, even though it was not set out in its objects. Northern Suburbs indicates that, while "in characterisation of a law with respect to taxation, the legislative purpose has limited relevance" [Northern Suburbs at 570], it is nevertheless a factor to be taken into account in determining whether a law is a law "with respect to taxation" within s 51(ii) of the Constitution.
Contrast Airservices at [374] per
Gummow J.
73 Plainly enough, these two considerations – the relationship between the charge and a cost or value to which it is referable and the presence or absence of a revenue-raising purpose – can assist in the process of characterization. Of course, these considerations are inter-related: the lack of a discernible relationship between the charge and cost or value may be indicative of a revenue-raising purpose: compare McHugh J in Airservices at [311].
74 In the case of s 209, there is a close relationship between the payment required of a particular detainee and the cost to the Commonwealth of his or her detention. By virtue of the definition of "costs" in s 207, the costs of detention that are made payable by s 209 are constituted by the daily maintenance amount, as well as the transportation costs that are incidental to the detainee’s detention. As we have seen, the daily maintenance amount is the amount, calculated on a daily basis, for the maintenance of a detainee at a specified place in a specified period, as determined by the Minister: ss 207 and 208. That is, apart from incidental transportation costs incurred in respect of the particular detainee, the detainee is required to pay an amount for his or her maintenance, calculated on a daily basis and referable to the place and period of his or her detention. Under the Act, there is a close relationship between the costs payable under s 209 by the detainee and a cost to the Commonwealth that is directly referable to the detainee, although the detainee may not receive a benefit of a value commensurate with the cost to the Commonwealth. Bearing in mind the authorities already mentioned, whilst acknowledging that the exaction imposed by s 209 is sui generis, I regard this relationship as indicating that the payment demanded by s 209 is not a tax.
75 In this context, assuming there is no need to establish that the person on whom the exaction falls receives something of value commensurate with the expenditure on him or her by the Commonwealth, it is immaterial that some of the costs of detention that a detainee must pay under s 209 may include security-related costs in addition to the costs occasioned by the provision of food, medical treatment, accommodation and the like.
76 Further, the purpose and effect of s 209 of the Act is to recoup the costs attributable to detention (whether directly or incidentally) from the non-citizens (aliens) to whom the costs relate and, in some circumstances, their carriers. This is apparent from s 208(2), pursuant to which no determination of a daily maintenance amount under s 208(1) can exceed the cost to the Commonwealth of detaining a detainee at a specified place in a specified period. I accept that, as the respondents submitted, s 209 and the related provisions have no wider revenue-raising purpose.
77 The legislative history of these provisions confirms that the introduction of s 209 and related provisions was designed to permit the Commonwealth to recover the costs attributable to detention and removal from the unlawful non-citizens to whom they relate. Prior to the Migration Reform Act 1992 (Cth), the Act only allowed for the recovery of costs from deportees (apart from a special regime for illegal fishermen). The explanatory memorandum, which accompanied the Migration Reform Bill 1992 in the Parliament, stated, at par 47, that:
In recent years, the increasing frequency of unauthorised boat arrivals at Australia’s northern frontier, the need to protect Australia’s international fishing zones from being illegally exploited, and the close scrutiny by the Federal Court directed towards relevant sections of the Principal Act, have exposed a need to provide a uniform regime for the detention of persons illegally in Australia and for the recovery of costs associated with such detention and removal. [Emphasis added]
78 Under the heading "Costs of Detention Removal and Deportation", the explanatory memorandum said, at pars 56–59:
The Bill provides that non-citizens unlawfully in Australia be liable for the costs of their maintenance, detention and removal. ...
At present not all persons unlawfully in Australia are so liable and it is the intention of these changes to ensure that all unlawful non-citizens bear primary responsibility for the costs associated with the detention, deportation or removal.
Masters, owners, agents and charterers of vessels (carriers) will continue to be jointly and severely liable for costs associated with the removal of any unvisaed or improperly documented persons who are brought to Australia by them. ...
The new arrangements will help to minimise the costs to the Australian community of the detention, maintenance and removal or deportation of unlawful non-citizens.
79 Having regard to the authorities previously discussed, I regard the purpose and effect of s 209, which is limited to recouping the costs of detention, as indicative of the fact that the payment to be made under this provision is not a tax
80 Further, having regard to the operation of Pt 2 of the Act as a whole, I consider that the payment required by s 209 is properly seen as one of the terms upon which an unlawful non-citizen is in the migration zone; and that this consideration is also indicative of the fact that the payment required by the impugned provision is not a tax. The payment required by s 209 is properly seen as one of the terms upon which an unlawful non-citizen is in the migration zone for the reasons set out below.
81 As we have seen, the Act provides for the consideration and determination by the Executive of applications by non-citizens (aliens) for permission to enter and remain in Australia. Unlike an Australian citizen, under Australian law, an alien does not have a right, without such permission, to enter and remain in Australia, or to become part of the Australian community: see, e.g., Ex parte Walsh and Johnson; In Re Yates [1925] HCA 53; (1925) 37 CLR 36 ("Walsh and Johnson") at 81-82 per Isaacs J; Air Caledonie 469-470; Lim at 29-30 per Brennan, Deane and Dawson JJ; Al-Kateb at [139] per Gummow J; and Behrooz at [20] per Gleeson CJ. The aliens and the immigration powers (s 51(xix) and s 51(xxvii) of the Constitution respectively) empower the Parliament to provide for the conditions pursuant to which aliens enter, remain and leave Australia: see Robtelmes v Brenan (1906) 4 CLR (Pt 1) 395 at 404 per Griffith CJ, 415 per Barton J, 421-422 per O’Connor J; Walsh and Johnson at 117 per Higgins J and 132-133 per Starke J; Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533, 555-556 per Latham CJ and 588-589 per Williams J; and Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 at 106 per Gibbs CJ.
82 As we have seen, the High Court has held that the mandatory detention provisions provide for an alien’s detention for the purposes of processing an application for a visa or for removal from the country. The effect of ss 189, 196, 198, and 209 is that an alien without a visa is in the migration zone on terms that (1) the alien remains separate from the Australian community until any visa application is finally determined or until removal; and (2) the alien pays the costs of his or her detention.
83 Thus, there are three factors that lead me to reject the applicant’s characterization of s 209 of the Act. They are (1) the close relationship between the payment required of a particular detainee and the cost to the Commonwealth of his or her detention; (2) the purpose and effect of s 209 as a mere recoupment provision; and (3) in the context of the Act, the nature of the exaction as a term of an unlawful non-citizen’s being in the migration zone. Read in this way, the payment required by s 209 of the Act is a law with respect to aliens and a law with respect to immigration, but it is not a tax. The payment for which s 209 calls is reasonably related to the expenses incurred by the Commonwealth that are referrable to an alien’s detention pending the processing of his or her visa application or removal.
84 Accordingly, I reject the applicant’s submission that the Migration Reform Act 1992 (Cth), which introduced s 209 into the Act, was contrary to s 55 of the Constitution, being a law imposing taxation and dealing with other matters.
Acquisition otherwise than on just terms
85 Section 51(xxxi) (the acquisitions power) of the Constitution confers a power upon the Parliament to legislate with respect to the acquisition of property from any State or person on just terms for any purpose in respect of which the Parliament has power to make laws. The provision is said to have the status of a constitutional guarantee, designed to protect citizens from being deprived of their property except on just terms: see Dalziel at 276 per Latham CJ, 284-285 per Rich J; Australian Tape Manufacturers at 509 per Mason CJ, Brennan, Deane and Gaudron JJ; and Mutual Pools at 168 per Mason CJ, 184 per Deane and Gaudron JJ, and 219 per McHugh J.
86 In the absence of any indication of contrary intention, by virtue of s 51(xxxi), the legislative powers reposed in the Parliament must be construed with the effect that they do not authorise the making of a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms. A contrary intention may, however, be found in the express terms in which a specific power is conferred, or in the very nature of the subject matter of a specific power or what is included within it: see Mutual Pools at 169-170 per Mason CJ. In this context, property has a very wide meaning: see Mutual Pools at 172 per Mason CJ, 184 per Deane and Gaudron JJ; and Australian Tape Manufacturers at 509 per Mason CJ, Brennan, Deane and Gauldron JJ. In their joint judgment in Australian Tape Manufacturers at 509, their Honours said:
In the context of s.51(xxxi), the word "property" must also be construed as extending to money and the right to receive a payment of money. If it were otherwise, money or the right to receive money could compulsorily be acquired for any purpose in respect of which the Parliament has power to make laws and without compensation, provided the money or the right to receive it was not revenue raised by taxation, a proviso which might be satisfied whenever the relevant purpose was to confer a private and direct benefit on a person or group.
See, contra, Dawson and Toohey JJ in Mutual
Pools at 201. I am bound to accept, however, that, for the purposes of s
51(xxxi), an "acquisition of property" includes a statutory right to receive
money.
87 Whether or not a statutory imposition of an obligation to pay money to another involves an "acquisition of property" for the purposes of s 51(xxxi) of the Constitution depends upon the characterization of the law and the statutory context in which the obligation is imposed: see Australian Tape Manufacturers at 509 per Mason CJ, Brennan, Deane and Gaudron JJ.
88 As Australian Tape Manufacturers and the other relevant authorities show, there are some acquisitions of property that can be made under a valid law of the Parliament, although there is no provision for just terms. Laws of this kind "do not constitute discrete categories of exception": see Airservices at [148] per Gaudron J (dissenting in the result).
89 In Mutual Pools at 186-187, Deane and Gaudron JJ discussed the nature of acquisitions of property that lay outside s 51(xxxi) of the Constitution, saying:
There are two related matters to be noted with respect to s.51(xxxi)’s operation to confine the content of other grants of legislative power in s.51. The first is that that operation, being merely indirect as a matter of construction, is necessarily subject to any contrary intention either expressed or made manifest by the words or content of those other grants of power. In particular, some laws which are expressly authorized under other grants of legislative power necessarily encompass acquisition of property unrestricted by any requirement of the quid pro quo of just terms. Laws "with respect to ... Taxation" are an example. The second is that s.51(xxxi) is, first and foremost, a grant of power, and only secondarily a guarantee of "just terms". For present purposes, it can be described as a power to make laws with respect to acquisition of property on just terms. The presence of the words "just terms" indicates that the acquisitions to which the grant of legislative power is directed are acquisitions of a kind which permit of "just terms". There are some kinds of acquisition which are of their nature antithetical to the notion of just terms but which were plainly intended to be permissible under laws made pursuant to one or more of the grants of power contained in s.51. ... Such an acquisition stands apart from the kinds of "acquisition of property" which constitute the subject matter of s.51(xxxi) and such laws are beyond the reach of the paragraph’s guarantee of just terms. [Citations omitted]
Referring to laws that validly provided for an acquisition of property without just terms, Deane and Gaudron JJ, at 190, went on to say:
The reason why that is so is that, even though an "acquisition of property" may be an incident or a consequence of the operation of such a law, it is unlikely that it will constitute an element or aspect which is capable of imparting to it the character of a law with respect to the subject matter of s.51(xxxi).
90 For the reasons I am about to give, s 209 is not a law that, in my opinion, has the character of a law with respect to the subject matter of s 51(xxxi).
91 In considering whether or not a law is properly characterized as a law with respect to the acquisition of property for the purposes of s 51(xxxi), I turn to some of the pertinent authorities. They indicate that the character of a law that involves an acquisition of property may be considered by reference to certain criterion or tests. I commence with the decision of the High Court in Mutual Pools. In this case, Mason CJ referred to the fact that some laws stood apart from s 51(xxxi), saying, at 171:
[T]he Court has decided that acquisitions of various kinds, even though they might perhaps fall prima facie within the general power, are to be regarded as authorized by the exercise of specific powers otherwise than on the basis of just terms. Of these instances, it may be said that they are all cases in which the transfer or vesting of title to property or the creation of a chose in action was subservient and incidental to or consequential upon the principal purpose and effect sought to be achieved by the law so that the provision respecting property had no recognizable independent character. Indeed the taxation cases apart, they were all cases in which the relevant statute provided a means of resolving or adjusting competing claims, obligations or property rights of individuals as an incident of the regulation of their relationship, e.g., the relationship between a bankrupt and the creditors in the bankruptcy, between the Crown and the person who brings in prohibited imports, and between the Crown and an enemy alien with respect to enemy property. In a context in which the law resolves or adjusts competing claims, obligations or property rights, it is not possible to regard the law as a law for the acquisition of property within the meaning of s.51(xxxi). [Emphasis added]
92 The notion of an adjustment of competing claims, obligations and rights derived in part from the earlier joint judgment of the Chief Justice, Brennan, Deane and Gaudron JJ in Australian Tape Manufacturers at 510. Their Honours there observed:
In a case where an obligation to make a payment is imposed as genuine taxation, as a penalty for proscribed conduct, as compensation for a wrong done or damages for an injury inflicted, or as a genuine adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity, it is unlikely that there will be any question of an "acquisition of property" within s.51(xxxi) of the Constitution. On the other hand, the mere fact that what is imposed is an obligation to make a payment or to hand over property will not suffice to avoid s.51(xxxi)’s guaranteed "just terms" if the direct expropriation of the money or other property itself would have been within the terms of the sub-section. Were it otherwise, the guarantee of the section would be reduced to a hollow facade. [Citations omitted]
93 Whilst there are difficulties with the adjustment criterion, the criterion has repeatedly been drawn in aid of decisions in the High Court: see Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 ("Lawler") at 285-286 per Deane and Gaudron JJ; Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 at 236-238 per Mason CJ, Deane and Gaudron JJ; and Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 at 305-308 per Mason CJ, Deane and Gaudron JJ. In upholding the validity of the impugned legislation, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said, in Ninetendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 ("Ninetendo") at 161:
The cases also establish that a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property for the purposes of s.51 of the Constitution.
94 Noting that there were deficiencies in the adjustment criterion, Gummow J (at [501]) nonetheless applied the criterion in Airservices in determining that the impugned statutory lien provisions were valid since they "adjust[ed] the respective interests of those who own, lease or operate the aircraft and of the provider of services necessary for commercial operations of the aircraft in Australia": see further Airservices at [498]-[501]. Hayne J also adopted this criterion in holding that the statutory lien did not offend the just terms requirement of s 51(xxxi), saying in Airservices at [519]:
The charges which may be satisfied by sale of an aircraft under these provisions of the Act may not have been (and were not, in these cases) incurred by the owner of the aircraft. Thus the security interest, for the creation of which the Act provides, attaches in this case to the property of one person to satisfy the debt of another. That fact might suggest that the law providing for creation of the security interest is not concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity. It is necessary to recall, however, that the lien is a lien over the aircraft which was used in ways that gave rise to the imposition of the charge; it is not a lien over any other property of the owner of the aircraft. That being so, for the reasons given by Gummow J, the statutory lien provisions are not properly characterised as a law with respect to the acquisition of property on just terms from any person for any purpose in respect of which the Parliament has power to make laws. Rather, they are to be characterised as a law with respect to trade and commerce with other countries and among the States.
See also Airservices at
[148] per Gaudron J.
95 As noted above, under Australian law, an alien without a visa has no right to enter and remain in Australia, or to join the Australian community. As we have seen, s 209 of the Act is an ancillary part of the mandatory detention regime established under the Act. Pursuant to this regime, a non-citizen (alien) without a visa is in detention for the purposes of processing any application for a visa or for removal from the country: see ss 189, 196, 198 of the Act, discussed above. As I have said, the effect of these provisions and s 209 is that an alien without a visa is in the migration zone on terms, including that the alien remains in immigration detention until granted a visa or removed and pays the costs of his or her detention to the Commonwealth. The purpose and effect of s 209 is to enable the Commonwealth to recoup the expenditure incurred by it in respect of non-citizens in detention from the non-citizens to whom the expenditure relates. The payment required of a non-citizen under s 209 of the Act is reasonably related to the cost to the Commonwealth of his or her detention: see, e.g., s 208(2).
96 This being so, it does not seem to me that s 209 is properly characterized as a law with respect to the acquisition of property on just terms from any person for any purpose in respect of which the Parliament has power to make laws. On the contrary, s 209 is a law that adjusts the interests of aliens without visas, who are required to remain in detention pending the grant of a visa or removal, and the interests of the Commonwealth, which must regulate the entry and presence of aliens in Australia and maintain in detention any alien without a visa until the grant of a visa or removal.
97 In the context of the Act, the acquisition that s 209 effects is part of the adjustment of the competing interests of aliens without visas in the migration zone (Australia) and of the Commonwealth which is obliged to regulate their entry and presence in this country. This adjustment is within the aliens power or the immigration power. Section 209 is therefore properly characterized as a law with respect to aliens or a law with respect to immigration. The impugned law does not take its character from the acquisition that the law involves.
98 When s 209 is understood as a provision for the adjustment of interests, it is immaterial that the person on whom the obligation to pay falls may not receive anything in exchange of commensurate value. For the reasons stated, on the basis of the authorities mentioned above, I would reject the applicant’s submission that s 209 of the Act involves an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution.
99 It is probably unnecessary to say anything more about s 51(xxxi), although there are other analyses that would also support the same conclusion. I indicate briefly why this would be.
100 Brennan J joined in the joint judgments in Australian Tape Manufacturers and Ninetendo and can be taken to have accepted the adjustment criterion, but certain of his Honour’s observations in his separate judgment in Mutual Pools also assist in understanding the constitutional context and operation of s 51(xxxi) of the Constitution from a different perspective.
101 In Mutual Pools at 177, Brennan J noted that s 51(xxxi), "by an implication required to make the condition of just terms effective ... abstracts the power to support a law for the compulsory acquisition of property from any other legislative power (s.122 apart)" but that "there are sundry laws providing for the acquisition of property which are supported by heads of power other than s.51(xxxi) and which are not affected by the requirement of just terms". At 179, his Honour explained that:
Although s.51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed.
102 After reviewing the authorities, Brennan J said, in Mutual Pools at 180-181:
In my view, a law may contain a valid provision for the acquisition of property without just terms where such an acquisition is a necessary or characteristic feature of the means which the law selects to achieve its objective and the means selected are appropriate and adapted to achieving an objective within power, not being solely or chiefly the acquisition of property. But where the sole or dominant character of a provision is that of a law for the acquisition of property, it must be supported by s.51(xxxi) and its validity is then dependent on the provision of just terms.
103 In Airservices at [98], Gleeson CJ and Kirby J referred to this passage as well as to Brennan J’s judgment in Lawler at 281, before upholding the validity of the statutory lien provisions at issue in that case: see Airservices at [100]-[101]. Amongst other things, their Honours specifically noted, at [98], that "necessary" in the context in which Brennan J used the word did not mean "indispensable". I return to this analysis below: before doing so, however, I outline the approach adopted by McHugh J.
104 McHugh J has not expressly adopted the adjustment criterion but has accepted at least part of Brennan J’s analysis. In Mutual Pools, at 219-220, McHugh J said:
Although s.51(xxxi) abstracts the power of acquisition from other legislative powers in s.51, it cannot be interpreted so broadly as to render meaningless the legitimate use and operation of other powers conferred by s.51. The compound conception (1) of an "acquisition of property on just terms" predicates a compulsory transfer of property from a State or person in circumstances which require that the acquirer should pay fair compensation to the transferor. When, by a law of the Parliament, the Commonwealth or someone on its behalf compulsorily acquires property in circumstances which make the notion of fair compensation to the transferor irrelevant or incongruous, s.51(xxxi) has no operation.
I interpolate here that even though s 209
involves an acquisition of property, the notion of fair compensation to the
non-citizen
who is detained would, in the statutory context in which it appears,
be incongruous. As noted above, the purpose of s 209 of the Act is to enable
the Commonwealth to recoup the costs of detention from those who have been
detained. The notion of "just terms" in
respect of the liability that s 209
creates is not a natural part of this purpose.
105 McHugh J expanded on his preferred approach in Airservices, choosing to express the process of characterization as a two-stage one: the first question was whether the impugned law was within s 51(xxxi); and, secondly, if not, whether it was otherwise within legislative power: see Airservices at [339]. His Honour continued, at [341]-[342]:
If the law effects an acquisition of property and the notion of compensation is not incongruous or irrelevant, the law is within s 51(xxxi) and its validity will depend on whether it provides just terms for the acquisition, nothing more. ...
If the circumstances are such that the notion of fair compensation to the transferor is irrelevant or incongruous, the law is not a law with respect to s 51(xxxi). Its validity will then depend on whether it can be supported under another head of federal power. If the law is correctly characterised as within the core of a s 51 head of power, other than s 51(xxxi), there is no need to resort to the implied incidental power. However, as the inquiry will only be made in a situation where the operation of a law effects the acquisition of property, it will often be difficult to say that the law falls "fairly and squarely within the core of the subject matter" of another s 51 head of power. When that is so, the extent of the incidental power will be decisive. [Citations omitted]
106 As to the incidental power, McHugh J said, at [344]:
Perhaps in recognition of one of the difficulties referred to by Mason CJ - that of identifying the "main purpose" of a non-purposive head of power - Brennan J's judgment in Mutual Pools couches the test for determining whether a law is incidental to a s 51 head of power in terms of whether "the acquisition of property without the provision of just terms ... [is] a necessary or characteristic feature of the means selected to achieve an objective within power, the means selected being appropriate and adapted to that end" (emphasis added). Thus, Brennan J refers to achieving an objective within power, rather than achieving the "main purpose" of the power. In my opinion, this shift from the requirement of an incidental law achieving the main purpose of the power to the requirement of an incidental law achieving an objective within power, is one which is required in order to surmount the difficulty referred to by Mason CJ. This more liberal formulation of the test for an incidental power is evident in the judgment of Deane and Gaudron JJ in Lawler, who refer to "some object or purpose within power", in my judgment in Nationwide, in referring to achieving the "main purpose or purposes", and in the judgment of Dawson J in Nationwide who says that "notwithstanding the immediate operation of the law, if its end lies within the scope of the power, then there will ordinarily be a sufficient connection to support the law." [Citations omitted]
Applying this test, his Honour held, at [357], that
the impugned statutory lien provisions were "reasonably capable of being seen
as
appropriate and adapted to the achievement of a purpose ... which is
within the scope of s 51(i) [of the Constitution]".
107 Section s 209 is not a law within s 51(xxxi) of the Constitution, but is a law with respect to aliens or a law with respect to immigration, either because its subject matter is aliens or immigration or incidental thereto. If (as I have found) s 209 involves an acquisition of property, then the acquisition is a necessary or characteristic feature of the means the law selects -- the Commonwealth’s recoupment of its expenditure in respect of aliens in detention to achieve its objective -- the adjustment of the competing interests of aliens in Australia without visas and of the Commonwealth which is obliged to regulate their entry and presence in this country. This adjustment is reasonably capable of being seen as appropriate and adapted to achieving the objective, which is within the aliens power or the immigration power.
108 I appreciate that, in some cases, the costs of detention may be high relative to the means available to the non-citizen on whom s 209 imposes the charge and that, in some cases, the period of a particular non-citizen’s detention may be lengthy due to factors unrelated to any culpable conduct on his or her part. Moreover, the applicant asserted, and the respondents did not deny, that the Act contains no express provision for the waiver of amounts payable under s 209 of the Act. Upon the case that the applicant has made, these considerations do not, however, impinge on the validity of the impugned legislation. I am bound to consider the impugned legislation in the context of the operation of the Act as a whole, including the provision made in s 198 of the Act for the removal of a non-citizen and thus the termination of his or her detention: see [48] above. One must also recall that it is fundamental to the Australian constitutional system that "once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary": see Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 179 per Dixon CJ. The Chief Justice went on to say, also at 179:
In the administration of the judicial power in relation to the Constitution there are points at which matters of degree seem sometimes to bring forth arguments in relation to justice, fairness, morality and propriety, but those are not matters for the judiciary to decide upon. The reason why this appears to be so is simply because a reasonable connection between the law which is challenged and the subject of the power under which the legislature purported to enact it must be shown before the law can be sustained under the incidental power.
See, e.g., Coleman v Power [2004] HCA 39; (2004) 209 ALR 182 at [235] per Kirby J; Purvis v State of New South Wales [2003] HCA 62; (2003) 202 ALR 133 at [19] per McHugh and Kirby JJ (dissenting); Leask v Commonwealth of Australia [1996] HCA 29; (1996) 187 CLR 579 at 602 per Dawson J, 616 per McHugh J, 624 per Gummow J, 635-636 per Kirby J; and Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 352 per Toohey J. As I have said, there is a necessary and sufficient connection between the impugned law and the aliens power or the immigration power.
109 For the reasons stated, I would reject the applicant’s contention
that s 209 of the Act involves an acquisition of property otherwise than on
just terms contrary to s 51(xxxi) of the Constitution. Accordingly, as I
have also rejected the "taxation" limb of the applicant’s case, I would
dismiss the applicant’s application
for declarations, with costs.
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I certify that the preceding one hundred and nine (109) numbered paragraphs
are a true copy of the Reasons for Judgment herein of
the Honourable Justice
Kenny.
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Associate:
Dated: 17 January 2005
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Counsel for the Applicant:
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J Burnside QC (pro bono) with S Hay (pro bono)
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Solicitor for the Applicant:
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Maurice Blackburn Cashman (pro bono)
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Counsel for the Respondent:
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P Hanks QC with P Gray
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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5 December 2003
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Date of Judgment:
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17 January 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/11.html