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Federal Court of Australia |
Last Updated: 9 February 2007
FEDERAL COURT OF AUSTRALIA
Plaintiff P1/2003 v Ruddock [2007] FCA 65
CONSTITUTIONAL LAW - validity of provisions relating to offshore entry
persons - whether open to argument that provisions not supported
by
constitutional head of power
MIGRATION - ministerial declaration -
validity of declaration - whether open to argument that declaration must satisfy
statutory conditions
MIGRATION - provisions relating to offshore
entry persons - whether open to argument that provisions subject to guardianship
obligations
PROCEDURE - application for leave to amend statement
of claim - whether argument on issues raised precluded by law from
argument
PROCEDURE - nature of remittal by High Court - remittal
to Federal Court - whether Federal Court has jurisdiction to grant leave to
amend claim upon remittal - whether amendments can include claims based on facts
occurring since proceedings instituted - whether
precluded by provisions
relating to offshore entry and transitory persons - effect of Federal Court
Rules
Immigration (Guardianship of Children) Act 1946
(Cth) s 6A(1)
Judiciary Act 1903 (Cth)
s 44
Migration Act 1958 (Cth) ss 198A, 198A(1), 198A(3), 198B,
494AA, 494AB
Federal Court Rules O 13 r 2(1), O 13
r 2(2), O 13 r 2(7)(b), (8)
Abela v Giew (1964) 81
WN (Pt 1) (NSW) 344
Advanced Switching Services Pty Ltd v State Bank of
New South Wales t/as Colonial State Bank (2001) ATPR 41-848
Al-Kateb
v Godwin [2004] HCA 37; (2004) 219 CLR 562
Attorney-General for Canada v Cain and
Gilhula [1906] AC 542
Bourke v State Bank of New South Wales
(1988) 22 FCR 378
Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR
276
Bray v F Hoffman-La Roche Ltd [2003] FCA 1505
Cam Mui Chi
Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR
14
Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR
436
Chi Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs [1992] HCA 64; (1992) 176 CLR 1
Commonwealth of Australia v Mewett
(1994) 126 ALR 391
Cultivaust Pty Ltd v The Grain Pool of Western
Australia [2001] FCA 1812
Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182
CLR 272
De L v Director-General, NSW Department of Community Services [1996] HCA 5;
(1996) 187 CLR 640
Dinnison v Commonwealth of Australia (1997) 74
FCR 184
Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537
Eremin v Minister for Immigration, Local Government and Ethnic
Affairs (1990) 21 ALD 69
Ex parte Walsh and Johnson; Re Yates [1925] HCA 53;
(1925) 37 CLR 36
Ferrando v Pearce [1918] HCA 47; (1918) 25 CLR 241
Global
Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 66 IPR 19
Gregory v
Philip Morris Ltd (1988) 80 ALR 455
Hodges v State of New South Wales [1988] HCA 9;
(1988) 77 ALR 1
Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR
183
Jeffreys v Boosey (1854) 4 HLC
Koon Wing Lau v Calwell [1949] HCA 65;
(1949) 80 CLR 533
Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR
579
Maritime Union of Australia v CSL Australia (2002) 113 IR
326
McCauley v Hamilton Island Enterprises Pty Ltd [1986] HCA 86; (1986) 61 ALJR
235
Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR
31
Minister for Immigration and Multicultural and Indigenous Affairs v B
(2004) 219 CLR 265
Minister for Immigration and Multicultural and
Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 81 ALJR 1
Morton v Union Steamship
Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Nationwide News v Wills [1992] HCA 46;
(1992) 177 CLR 1
O’Keefe v Calwell [1949] HCA 6; (1949) 77 CLR
261
Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194;
(2002) 122 FCR 29
P1 of 2003 v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 1029
P1 of 2003 v
Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370
Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101
Polyukhovich v
Commonwealth [1991] HCA 32; (1991) 172 CLR 501
R v Director-General of Social Welfare
(Vic); Ex parte Henry [1975] HCA 62; (1975) 133 CLR 369
R v Secretary of State for
Home Affairs; Ex parte Duke of Chateau Theirry [1917] 1 KB 922
Re
Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323
Re Patterson; Ex parte
Taylor [2001] HCA 51; (2001) 207 CLR 391
Re Woolley; Ex parte Applicants M276/2003 by
their next friend GS [2004] HCA 49; (2004) 79 ALJR 43; 210 ALR 369
Robtelmes v Brenan [1906] HCA 58;
(1906) 4 CLR 395
Schlieske v Minister for Immigration and Ethnic
Affairs (1988) 84 ALR 719
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR
245
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003)
218 CLR 28
Spotwire Pty Ltd v Visa International Services Inc (2003)
ATPR 41-949
SZ v Minister for Immigration and Multicultural Affairs
[2000] FCA 458(2000) 172 ALR 172
Tasmanian Dams Case [1983] HCA 21; (1983) 158
CLR 1
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR
394
Theophanous v Commonwealth of Australia [2006] HCA 18; (2006) 80 ALJR 886; 226
ALR 602
Tonkinson v South Eastern Railway Co (No 2) (1887) 57 LT
358
Ul-Haque v Regina [2006] NSWCCA 241
Victoria v Commonwealth
(Industrial Relations Act case) [1995] HCA 45; (1996) 187 CLR 416
WACB v Minister for
Immigration and Multicultural and Indigenous Affairs [2004] HCA 54; (2004) 79 ALJR 190; 210
ALR 190
WAJC v Minister for Immigration and Multicultural and Indigenous
Affairs [2002] FCA 1631
X v Minister for Immigration and Multicultural
Affairs [1999] FCA 995; (1999) 92 FCR 524
XYZ v Commonwealth [2006] HCA 25; (2006) 80 ALJR
1036
Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR
1
PLAINTIFF
P1/2003 v PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
WAD 156 OF 2003
NICHOLSON J
7 February 2007
PERTH
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AND:
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THE COURT ORDERS THAT:
1. Within 14 days the parties confer on the appropriate form of orders to give effect to the attached reasons and within 21 days either jointly file consent orders or a draft of the orders sought by each together with short written submissions.
2. Costs reserved.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
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the pleadings
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1
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approach to grant of leave
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5
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Validity of s 198A of the migration act: CLAIM [7]
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6
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Reach of constitutional power
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8
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Naturalization and aliens power: s 51(xix)
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8
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Argument 1: the scope of the power
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8
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Argument 2: proportionality
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9
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Immigration and emigration power: s 51(xxvii)
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197.333284" colspan="1" rowspan="1" valign="bottom">
12
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Argument 1: the scope of the power
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12
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Argument 2: proportionality
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14
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External affairs power: s 51(xxix)
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197.333284" colspan="1" rowspan="1" valign="bottom">
15
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Other paragraphs affected
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18
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Validity of s 198B: claim [9]
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18
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Validity of s 198A(3) declaration: claims [10], [11] and [12]
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20
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Powers under the Migration Act limited by the guardianship act: claim
[26]
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23
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27
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-1 The Judiciary Act
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32
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-2 The remittal orders
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32
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33
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-5 Prior authorities
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34
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-6 Whether a single justiciable controversy
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36
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OTHER GENERAL objections
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37
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The plaintiff falsely imprisoned: claims [30], [31] and [89]
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37
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Misfeasance in public office
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37
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The defendants breached a duty of care they owed the plaintiff: claim
[86]
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37
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The second defendant acted in contumelious disregard of the plaintiff's
rights: claim [93]
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39
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Summary on other objections
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39
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LIMITED OBJECTIONS
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40
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Plaintiff's prior experience
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40
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Plaintiff's experience in international waters
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40
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Plaintiff's removal from Ashmore Reef to Christmas Island
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40
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Plaintiff's detention on Christmas Island
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40
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Identification of Nauru Officers
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40
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Plaintiff's place of detention on Nauru
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41
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Knowledge of grant of visa to Hussain
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41
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Plaintiff's return to Australia for coronial inquest
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41
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Second Nauru Memo of Understanding
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41
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Plaintiff's alleged psychiatric condition
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41
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conclusion
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41
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WESTERN AUSTRALIA DISTRICT REGISTRY
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BETWEEN:
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AND:
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
1 These reasons concern an application by the plaintiff for leave to amend his statement of claim, in reliance upon O 13 r 2 of the Federal Court Rules (FCR). The defendant objects to certain paragraphs of the proposed amended claim. Although there is presently only one defendant, the proposed claim seeks to join the Commonwealth of Australia as first defendant and retain the current defendant as the second defendant. Such a joinder may be permitted pursuant to FCR O 6 r 2. The defendant, although objecting to the grant of leave, did not oppose that joinder in the event leave was granted. (When referring to the position as it would be under the proposed pleadings reference is made to defendants in the plural). 2 Notice of a constitutional matter was served by the defendant under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) but no Attorney-General has sought to be heard. Not all of the constitutional matters referred to in the notice were proceeded with by the defendant at this time.
3 The plaintiff’s proposed factual pleadings in outline are as follows. He states he was born on or about 21 September 1985 and was at all times a citizen of Afghanistan: [1]. After imprisonment and injury from the Taliban, the plaintiff left that country in the winter of 2000 when he was approximately 15 years of age: [17] and [18]. Unknown to the plaintiff, his brother Hussain had arrived in Australia by boat on 22 October 1999 and, on 11 April 2000, been granted a protection visa and released from detention: [15] and [16]. On 31 October 2001 the plaintiff claims to have been on board a vessel en route from Indonesia to Australia when, after interception by two of the proposed first defendant’s vessels, it caught fire and sank: [20] and [21]. The plaintiff was rescued by one of the vessels and taken to Ashmore Reef: [23]. Some days prior to 14 November 2001 he was placed in restraint and taken by officers of either the first or the second defendants on board a vessel of the first defendant and removed to Christmas Island: [27]. On 29 December 2001, pursuant to a direction given by the second defendant, the plaintiff was removed by aircraft from Christmas Island to Nauru: [41]. He was detained there until 3 November 2002: [44]. 4 On 19 June 2002 and 8 September 2002 the plaintiff applied (unsuccessfully) to agents of the second defendant for a declaration that he was a refugee within the meaning of art 1A of the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention): [45]. On 3 October 2002 a visiting Australian medical specialist retained by the defendants recommended that the plaintiff obtain medical treatment in Australia for an injury to his arm: [49]. On 3 November 2002 the Nauru officers caused the plaintiff to be flown to Perth, Western Australia to give evidence at a coronial inquest into the deaths of two women who had drowned when the vessel on which he had been travelling from Indonesia to Australia caught fire and sank: [47]. On arrival in Perth he was detained at the Perth Immigration Detention Centre: [48]. 5 Prior to the plaintiff’s arrival in Perth no arrangements had been made by the defendants for him to receive medical attention: [50]. On 5 November 2002 solicitors acting for the plaintiff sought an undertaking from the second defendant not to cause the plaintiff to be removed from Australia without giving his solicitors 72 hours notice of the intended removal: [52]. On 6 November 2002 Perth officers of the defendants refused a request by the plaintiff for an examination of his arm injury by a Perth consultant orthopaedic surgeon: [53]. On 8 November 2002 the solicitors for the second defendant wrote to the plaintiff’s solicitors assuring them the plaintiff would not be returned to Nauru until he had undergone the surgery: [54]. On 18 December 2002 the plaintiff’s solicitors asked the second defendant’s solicitors to attend a meeting to discuss the better management of the plaintiff, particularly in relation to his apparent aggravated psychiatric condition: [59]. On 18 December 2002 the second defendant determined that, notwithstanding that he had not yet undergone surgery, the plaintiff would be returned to Nauru on 22 December 2002 and returned to Australia at a later date for surgery: [60]. On 20 December 2002 a clinical psychologist employed by the Western Australian Department of Community Development interviewed the plaintiff and recommended a more active and open care context for him, having found him to be confined to a motel room: [61]. 6 On 20 December 2002 French J granted an injunction preventing the removal of the plaintiff prior to 23 December: [63]. At the hearing on that latter date the plaintiff’s application for restraint on his being removed from Australia was dismissed: [64]. On 24 December 2002 the High Court granted injunctive relief to the plaintiff restraining the second defendant from removing him from Australia until either his 18th birthday or until his principal application to the High Court was determined: [66]. 7 On 25 March 2003 the Director General of the Department of Community Development recommended that the plaintiff be released from detention: [68]. On 27 May 2003 a clinical psychologist employed by that Department issued a provisional opinion that the plaintiff was suffering from post traumatic stress disorder with a co-morbid major depressive disorder: [69]. This report was forwarded to the second defendant’s Department: [70]. On 28 June 2003 the plaintiff was restrained and conveyed to the Perth Immigration Detention Centre after an incident arising from his complaining about the noise of the television watched by officers at the motel: [71]. On 29 June 2003 the plaintiff deliberately harmed himself: [72]. On 30 June 2003 the First Assistant Secretary of the second defendant’s Department wrote to the Director General of the Department of Community Development advising that, based on two medical opinions, he did not believe there was any need to consider any alternative accommodation for the plaintiff: [73]. On 2 July 2003 a medical officer at a service operated by the Health Department (WA) diagnosed the plaintiff to be suffering from major depressive disorder and post traumatic stress disorder: [75]. On 18 July 2003 the second defendant’s Department maintained its view that there was no need for alternative accommodation for the plaintiff: [77]. On 25 July 2003 a psychiatric registrar diagnosed the plaintiff to be suffering from major depressive disorder with co-morbid post traumatic stress symptoms: [78]. On 28 July 2003 Hussain commenced proceedings in the Family Court seeking parenting orders in respect of the plaintiff: [80]. The second defendant resisted the proceedings, filing a notice of objection to competency: [80]. 8 On 29 September 2003 the plaintiff applied to the Refugee Review Tribunal (the RRT) for review of his refugee status: [81]. On 18 December 2003 the RRT found he was a refugee on the grounds of actual or imputed political opinion: [82]. He was released from detention on 25 February 2004: [83]. He was granted a 3 year temporary protection visa on 26 February: [83]. 9 Expressed succinctly, the claims of the plaintiff are to the following effect. Firstly, he claims the second defendant breached the duty of guardianship owed to him as a non-citizen child. This claim is particularised with respect to events of the character set out above. He additionally relies on a duty of care owed to him by both defendants and claims it was also breached. The consequence, he claims, is that he has suffered loss and damage. Further the plaintiff claims in respect of what he says was false imprisonment from 14 November 2001 to 25 February 2004. Also he claims against the second defendant for misfeasance in public office as well as contumelious disregard of his rights in depriving him of legal assistance and qualified independent assistance with his visa application. He therefore claims remedies in the nature of declaratory relief and certiorari as well as damages. As against the first defendant he seeks a declaration that s 198A of the Migration Act 1958 (Cth) (the Migration Act) is ultra vires the Commonwealth. In the case of the second defendant he claims aggravated and exemplary damages. 10 The pleading also addresses the legal foundations of the plaintiff’s claim. Much of that becomes apparent in reference to the paragraphs to which objection is taken. Broadly expressed, the plaintiff claims that when he entered Australia and from that time he was under the protection of the provisions of the Immigration (Guardianship of Children) Act 1947 (Cth) (the Guardianship Act) as a non-citizen child. His case is that this remained so although he was under the Migration Act an unlawful non-citizen. The plaintiff states that if he was a non-citizen child for the purposes of the Guardianship Act, that was the measure of protection to which he was entitled from the defendant, as Minister, pursuant to that Act and to the duty of care owed to him as a detainee. Central to these issues is the issue of the validity of the provisions relating to offshore entry persons in s 198A (and the associated ss 198B-198D) of the Migration Act and whether they provided the defendant with the requisite authority to deal with him as occurred. 11 It is relevant to have regard to what would be the position in the event that leave to amend was refused and the remitted claim remained before the Court in its original form. That would not contain any claim relating to ss 198A or 198B of the Migration Act or public misfeasance. Otherwise the issues said to arise under the Guardianship Act and those relating to false imprisonment, duty of care and contumelious disregard would still be before the Court. The proposed claim would add considerably more detail and would include the events said to have occurred after the commencement of the proceeding.
12 The power for the Court to order that any party have leave to amend any document in the proceeding is found in FCR O 13 r 2(1). Relevantly, any necessary amendments shall be made for the purpose of determining the real questions of the proceedings or correcting any defect or error in the proceeding: FCR O 13 r 2(2). 13 The questions raised by the objections of the defendant to the plaintiff’s application for leave to amend require consideration of whether certain amendments are obviously futile: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345; Advanced Switching Services Pty Ltd v State Bank of New South Wales t/as Colonial State Bank (2001) ATPR 41-848 at 43 486; Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 at [14] per Merkel J; Spotwire Pty Ltd v Visa International Services Inc (2003) ATPR 41-949 at 47 410 per Bennett J. In Cultivaust Pty Ltd v The Grain Pool of Western Australia [2001] FCA 1812 at [7] Mansfield J said that he considered the test to be similar to the test which would be applied if the paragraphs were already included in the statement of claim and there was an application to strike them out as not being capable of sustaining the cause of action pleaded. Goldberg J said in Global Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 66 IPR 19 at 23 that amendment should not be allowed if such amendment would be hopeless so that the cause of action could not succeed. However, it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed: The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 456 per Dawson J cited in Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 at [44] per Weinberg J. 14 In applying the test of ‘obviously futile’ in this Court, it is to be appreciated that the Court would reach the view that a pleading was of that character where it is bound by law which has the effect of making the proposition upon which the pleading is dependent not open to argument. That, of course, would not be the position in relation to issues of constitutionality should the plaintiff’s application reach the High Court: XYZ v Commonwealth [2006] HCA 25; (2006) 80 ALJR 1036 (XYZ 80 ALJR) at 1055-1056 [77]-[80] per Kirby J. 15 However, the approach even to the test of ‘obviously futile’ in this Court may vary where a pleader chooses to plead a reason a law is invalid. In such a case the pleading of the reason is not necessarily to be struck out if the reason does not appear to be sound: Hodges v State of New South Wales [1988] HCA 9; (1988) 77 ALR 1 at 5 per Brennan J citing Tonkinson v South Eastern Railway Co (No 2) (1887) 57 LT 358.
VALIDITY OF s 198A OF THE MIGRATION ACT: CLAIM [7]
16 The claim for declaratory relief against the first defendant is to the effect that s 198A of the Migration Act is ultra vires. The claim for certiorari against the second defendant is to quash the decision of his to declare the Republic of Nauru a country to which non-citizens of Australia could be removed under the provisions of s 198A of the same Act. 17 Section 198A reads:
‘(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).
(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).
(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.’
18 Paragraph [7] of the proposed substituted statement of claim addresses the section in the following terms:
‘Section 198A is ultra vires the Commonwealth. It was purportedly enacted pursuant to the legislative power conferred on the Commonwealth Parliament (the Parliament) by ss 51(xix) and 51(xxvii) of the Constitution which empower the Parliament to make laws with respect to aliens and immigration. Those powers did not and do not enable the Parliament to make a law, such as s 198A, authorising a Minister of the Commonwealth to make a declaration as to the alleged protection which a country other than Australia (the other country) provides to persons who are seeking asylum or have been given refugee status, authorising officers of the first defendant to remove an alien from Australia and cause him or her to be taken by force to the other country, where the other country is not the alien’s country of origin, with the intention and for the purpose of the alien being detained in the other country pursuant to an agreement between the first defendant and the other country.’
19 The defendant objects to the whole paragraph. An argument to similar effect in preceding claims has not been regarded as manifesting a claim of sufficient seriousness to support the application for interlocutory intervention: P1 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 (French J) at [47]-[50] (P1 of 2003 FCA 1029); P1 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370 (RD Nicholson J) at [11] (P1 of 2003 FCA 1370). In reaching his view French J said that the argument made before him was a pale shadow of a constitutional argument but he left open the prospect that it could solidify into something of substance with further development. The plaintiff has now further developed the argument which is made before the Court on this application.
20 The nub of the plaintiff’s proposed case on the pleadings relating to s 198A is that Parliament has (invalidly) legislated with application to persons who have no nexus with Australia. It is sought to be argued that the consequence is that neither the naturalization and aliens power nor the immigration and emigration power nor the external affairs power provide proper constitutional support for the enactment.
Naturalization and aliens power: s 51(xix)
ARGUMENT 1: THE SCOPE OF THE POWER
21 The defendant accepts that from the definitions of ‘offshore entry person’ (s 5), ‘unlawful non-citizen’ (s 14) and ‘non-citizen’ (s 5) in the Migration Act, it is clear that s 198A only applies in respect of certain persons who are not Australian citizens, that is, who are aliens: see Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28. 22 It is established that the power in s 51(xix) of the Constitution extends to legislating for the deportation of aliens: see Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 at 404 (Robtelmes 4 CLR), Ex parte Walsh and Johnson; Re Yates [1925] HCA 53; (1925) 37 CLR 36 (Re Yates 37 CLR) at 94, 108, 117 and 132-133; Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 at 555-556 (Koon Wing Lau 80 CLR); Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 at 106 (Pochi 151 CLR); Chi Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 26 (Chi Kheng Lim 176 CLR), 57 and 64; and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 632, at [203] (Al-Kateb 219 CLR). 23 The plaintiff proposes to argue that s 51(xix) confers a single power and not two discrete powers, as ‘each head of powers is but one grant’: Gummow J in Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579 (Leask 187 CLR) at 624. In reliance on that the plaintiff proposes to argue that to be valid a law passed under the power must show a sufficient connection to both naturalization and aliens. The plaintiff will argue that no such nexus can be established in the present case, as the aliens involved were precluded from making a visa application and thus seeking naturalization. 24 The plaintiff seeks to assert that while the power conferred by the Constitution was no doubt more ample than if it had been expressed to confer the making of laws with respect to ‘naturalization of aliens’, the framers of the Constitution cannot be seen on the plain words of the section to have intended that it extends to aliens, such as the plaintiff, having no further connection with the Commonwealth following their removal. 25 The defendant argues that, at a purely grammatical level, this wrongly assumes that the word ‘and’ cannot have a disjunctive rather than conjunctive meaning. An interpretation such as this is said to have startling consequences for different heads of power, such as the power with respect to ‘weights and measures’ (s 51(xv)). It is also asserted that the submission in question is contrary to a long line of binding authority, namely decisions of the High Court, establishing that s 51(xix) supports laws that relate to aliens and have no connection whatsoever to naturalization: Al-Kateb 219 CLR; Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49; (2004) 79 ALJR 43; 210 ALR 369 (Woolley 79 ALJR); and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 81 ALJR 1. The defendant further submits that if laws passed pursuant to s 51(xix) are required to relate to both naturalization and aliens, it would follow that the Migration Act has been invalid since 1984 when the constitutional footing of the Act shifted from the immigration power to the aliens power. This is said to be because the Act does not refer to the process of becoming an Australian citizen and so cannot relate to both naturalization and aliens. The defendant contends that for this reason alone the plaintiff’s argument must fail. The plaintiff contests all these assertions. 26 The point which the plaintiff seeks to argue is, in my view, one not precluded from argument by the authorities. It would appear to be one which might or ought not to succeed, but that is not the test to be applied. I therefore do not consider the plaintiff’s proposed argument under this head is obviously futile.
27 The plaintiff also submits that s 198A is invalid because ‘it is so out of proportion and disproportionate to anything within the aliens power that it would be invalid’: Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 at 28 (Nationwide News 177 CLR). The plaintiff concedes that the removal of unlawful non-citizens is indisputably an end within power. However it is submitted that the effect of ss 198A (and 198B) is so disproportionate as to be a means to an end beyond power, namely the detention and removal to a third country of aliens who were prevented from seeking protection or from challenging the lawfulness of their removal and detention. The plaintiff seeks to contend that any connection between the legislation and the naturalization and aliens power would cease to exist once the power purported to apply to persons after they passed beyond Australia’s borders. 28 It is said by the defendant there is no scope to consider whether a law passed pursuant to s 51(xix) is ‘proportionate’ to some purpose, such as removal from Australia. So long as the law has a connection to aliens that is not ‘tenuous, insubstantial or distant’ (Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 79 per Dixon J; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 369; Leask 187 CLR at 621-622 and 633-634; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 (Cunliffe 182 CLR) at 314-315; Tasmanian Dams Case [1983] HCA 21; (1983) 158 CLR 1 at 152-153; and Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276) that law is valid. ‘[T]he test remains one of sufficient connection. If that connection is established, it matters not how ill-adapted, inappropriate or disproportionate a law is or may be thought to be’: Leask 187 CLR at 603. In supplementary submissions the plaintiff contends that the provisions of s 198A are not simply ‘ill-adapted, inappropriate or disproportionate’ but so disproportionate as to have no connection with the head of power relied upon by the defendant. 29 The defendant also contends that the plaintiff’s submission does not accurately state the law. Proportionality may be an appropriate concept where there is a constitutional limitation on legislative power (such as the implied constitutional freedom of political communication) or where the question is whether legislation is supported by a purposive head of power (such as the defence power): Woolley 79 ALJR at [79]-[80]; Cunliffe 182 CLR at 324; Leask 187 CLR at 593-594, 606 and 614; Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 473-474. However, it is clear that proportionality is not relevant to the operation of non-purposive heads of power. To the extent that Mason CJ’s comments in Nationwide News 177 CLR suggest a wider role for proportionality they have not been adopted by other members of the High Court: Leask 187 CLR at 593-595, 599-600, 605, 613-615, 616-617 and 624. As Gummow J said in Leask 187 CLR at 624:
‘The legislation rests upon a "non-purposive" power. The concept of "proportionality" has no part to play here. In a case such as the present, "proportionality" is an inappropriate and impermissible tool of constitutional interpretation. [A] phrase such as "reasonable proportionality" is to be avoided when propounding criteria for the determination of whether a law of the Commonwealth exceeds a "non-purposive" grant of power. Each head of power is but one grant and the criterion of validity is sufficiency of connection.’
30 The plaintiff, however, submits that proportionality is not irrelevant, and notes that in Leask 187 CLR at 593 Brennan CJ did not discard proportionality altogether and said that it is ‘a concept used to ascertain whether an Act achieves an effect or purpose within power’ where a non-purposive law is challenged as to sufficiency of connection to a head of power. McHugh J stated at 616 that the concept ‘may sometimes prove helpful’ when a sufficient connection is not established and Kirby J referred to a ‘growing acceptance’ of the general use of the concept at 635. Dawson J, whilst recognising that sufficiency of connection remains the appropriate test, noted at 605 that the ‘disproportion of a law to an end asserted to be within power may suggest that the law is actually a means of achieving another end which is beyond power’. 31 More recently, in Theophanous v Commonwealth of Australia [2006] HCA 18; (2006) 80 ALJR 886; 226 ALR 602 at [70] (Theophanous 80 ALJR), Gummow, Kirby, Heydon and Crennan JJ said:
‘Leask v The Commonwealth denies the application of a concept of "proportionality" to non-purposive heads of legislative power. In Leask, McHugh J, together with Brennan CJ, Dawson J and Gummow J, expressed that conclusion.’
32 The plaintiff contends that this passage oversimplifies the ratio in Leask 187 CLR. Furthermore it is noted that both Leask 187 CLR and Theophanous 80 ALJR do not concern the aliens power. 33 The naturalization and aliens power is arguably, on its face, a non-purposive power. ‘[A]s long as a person falls within the description of "aliens", the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law’: Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [100]. ‘[A]ny law that has aliens as its subject is a law with respect to aliens’: Al-Kateb 219 CLR at [41] and [245]. See also Chi Kheng Lim 176 CLR at 26 and 64. Thus, the aliens power extends ‘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’: Al-Kateb 219 CLR at [255]. The plaintiff, however, wishes to contend that it is not beyond argument that the naturalization and aliens power is a purposive power. 34 In my view the plaintiff is not precluded by existing law from arguing on the issue of proportionality that (1) the ratio in Leask 187 CLR was not correctly stated by the High Court in Theophanous 80 ALJR so that proportionality may still be relevant to a non-purposive power; (2) the naturalization and aliens power is a purposive power so that proportionality is relevant; and (3) that if proportionality is not a consideration, there was nevertheless a lack of sufficiency of connection. While it may be unlikely the plaintiff will succeed on these issues, the point is that they are not precluded by the state of authority from argument, even in this Court, subject to the effect of argument on the external affairs power.
Immigration and emigration power: s 51(xxvii)
ARGUMENT 1: THE SCOPE OF THE POWER
35 The defendant contends that to the extent that s 198A applies to persons who are immigrants, it is also arguably supported by the Commonwealth’s power with respect to immigration and emigration (s 51(xxvii): see Robtelmes 4 CLR at 404 and 415 (Barton J); Re Yates 37 CLR at 83, 94, 108, 117 and 132-133; O’Keefe v Calwell [1949] HCA 6; (1949) 77 CLR 261 at 277-278 and 288; Koon Wing Lau 80 CLR at 555-556; Pochi 151 CLR at 106. 36 The plaintiff seeks to address the position that the power to deport an alien is to be found in the immigration and emigration power. The plaintiff intends to argue that the procedure contemplated by s 198A goes much further than what was held to be authorised by the majority in Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1 (Znaty 126 CLR), insofar as it provides for a friendly alien to be conducted to a third country, other than that of his nationality or residence, and if necessary by force. It is submitted that on the authority of Znaty 126 CLR, the provision may fall outside the immigration and emigration power conferred by s 51(xxviii). Insofar as it affects citizens of a friendly power, the provision runs counter to accepted considerations of international comity. The Commonwealth Parliament ‘has no power over any persons except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom’ ([78] citing Jeffreys v Boosey (1854) 4 HLC at 926). 37 In Znaty 126 CLR at 8, a majority of the High Court held that, under the Migration Act as it then stood, the Minister for Immigration could lawfully:
‘... determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee is to leave the country. The steps taken in the exercise of the powers are not invalidated if the intended practical result is the arrival of the deportee in a particular country.’
The defendant submits this is consistent with the validity of s 198A insofar as it authorises an offshore entry person to be taken to a declared country.
38 The plaintiff seeks to distinguish Znaty 126 CLR on the basis of the fact, recited by Walsh J, (at 6) that:
‘[Counsel for the defendants informed the Court that] it was not intended that any attempt would be made by or on behalf of the Commonwealth to prevent the plaintiff from leaving the aircraft after it had left Australia or to ensure by physical restraint or by surveillance that the plaintiff left the aircraft at Morocco and at no other place outside Australia.’
39 I agree with the submission of the defendant that, contrary to the plaintiff’s submission, the decision in Znaty 126 CLR does not appear to be distinguishable on this basis. Walsh J did not expressly place any reliance on that statement by counsel. In contrast, in construing the Migration Act, Walsh J referred to the offence provisions of s 22, which he said (at 9):
‘... make it clear that a place may be selected as that to which an authorized officer will require the master etc of a vessel to convey the deportee, provided that the officer is satisfied on reasonable grounds that the deportee will be permitted to land at that place and provided it is a place to which the vessel is bound. ... The intention is here disclosed by the Act that the authorities may select a place to which the deportee is to go and may then take steps designed to produce the result that he goes to that place.’
Nevertheless it would appear to be arguable that the issues raised by the proposed pleading goes further than the circumstances in Znaty 126 CLR in respect of the restrictions imposed on the alien. These restrictions not only achieved the relocation of the alien to Nauru but went further and imposed restrictions upon arrival there.
40 If the plaintiff is correct that the decision of the majority in Znaty 126 CLR is distinguishable on the facts, the defendant contends that it does not follow that Znaty 126 CLR is authority for the proposition that s 198A is not supported by s 51(xxvii) (or by any other head of power). It is said the decision in Znaty 126 CLR is at least consistent with the proposition that s 198A is valid. Walsh J distinguished earlier decisions of the High Court and the English Court of Appeal, in which it had been stated that a statutory power to deport ‘is exhausted when the alien is placed outside the territorial limits of the deporting country’: Ferrando v Pearce [1918] HCA 47; (1918) 25 CLR 241; and that the executive government has no power to order a deported alien to go to any particular place: R v Secretary of State for Home Affairs; Ex parte Duke of Chateau Theirry [1917] 1 KB 922. The statements in both cases were distinguished on the basis of the language of the particular statutory provisions: see Znaty 126 CLR at 12-13. Subsequent cases have similarly turned on the construction of particular legislative provisions: Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 724-725. Walsh J also referred to the ‘cases in which it has been held that the statutory regulation of deportation may include provisions for extra-territorial constraints because these may be necessary in order that the power to deport may be rendered effective’: Znaty 126 CLR at 12; see also Robtelmes 4 CLR at 412 and Al-Kateb 219 CLR at 632, at [203]. Walsh J did not suggest that the power to deport is somehow limited in relation to friendly aliens: cf Robtelmes 4 CLR at 400 and 412; referring to the opinion of the Judicial Committee of the Privy Council in Attorney-General for Canada v Cain and Gilhula [1906] AC 542. See also Robtelmes 4 CLR at 422 where O’Connor J stated that the power to deport includes a power of choosing the place of deportation and the means of deportation in order that the exercise of the power shall be effective. 41 In my opinion, the case law referred to in these submissions is not such as would render the plaintiff’s proposed argument on the scope of this power obviously futile. The issues raised by the plaintiff would appear to be beyond the scope of existing authority on the power but not precluded from argument by it. That, of course is subject to the effect of argument on the external affairs power.
42 The plaintiff repeats the argument on this issue addressed under the naturalization and aliens power. He says that such considerations may have lead Windeyer J in Znaty 126 CLR at 4 to observe that the power to deport has always seemed to rest on the immigration power ‘incidental thereto and limited thereby’. The argument falls to be resolved as set out above in relation to the preceding power.
External affairs power: s 51(xxix)
43 The defendant contends that s 198A is also arguably supported by the Commonwealth’s power with respect to external affairs: see Robtelmes 4 CLR at 415 (Barton J). This is because it is concerned with the movement of offshore entry persons between Australia and places physically external to Australia: see by analogy De L v Director-General, NSW Department of Community Services [1996] HCA 5; (1996) 187 CLR 640 at 650 (De L 187 CLR) (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). 44 The Commonwealth’s power with respect to external affairs includes a power to legislate with respect to places, persons, matters or things outside the geographical limits of, that is external to, Australia, whether or not there is otherwise a nexus with Australia: see Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (Polyukhovich 172 CLR) at 530-531 (Mason CJ), 602 (Deane J), 641 (Dawson J), 696 (Gaudron J), 714 (McHugh J); Victoria v Commonwealth (Industrial Relations Act case) [1995] HCA 45; (1996) 187 CLR 416 at 485 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); XYZ 80 ALJR at [49] (Gummow, Hayne and Crennan JJ). 45 The plaintiff however relies on the minority views of Brennan J expressed in dissent in Polyukhovich 172 CLR at 552 to the effect that the external affairs power does not arm the Commonwealth with power to enact laws governing affairs outside Australia with which Australia has no connection. There is support, perhaps even growing support, for that view elsewhere. In Polyukhovich 172 CLR at 654 Toohey J said that a matter does not qualify as an external affair simply because it exists outside Australia; it must be a matter which Parliament recognises as touching or concerning Australia in some way. In XYZ 80 ALJR at 1062 [116] Kirby J said there was a need to revisit the reasoning of Brennan J. In strong dissenting reasons in XYZ 80 ALJR Callinan and Heydon JJ held that the geographic externality principle accepted by the majority in Polyukhovich 172 CLR was unsupported by the Constitution and should be rejected. 46 The plaintiff contends that the proposition he advances is not inconsistent with the ratio in either XYZ 80 ALJR or Ul-Haque v Regina [2006] NSWCCA 241 (Ul-Haque NSWCCA 241). In these cases the accused were Australian citizens, which arguably provided a sufficient connection for the exercise of the power. The plaintiff contends that the proposition would not call for the ratio in Polyukhovich 172 CLR to be overruled as that case also related to an accused who was an Australian citizen. The proposition the plaintiff advances would require reconsideration of the wider form of the externality principle under the external affairs power, which would extend the reach of the laws in question to aliens having no past, present or future connection with Australia or any Australian citizen. 47 There is, however, powerful present authority to the contrary. In Victoria v The Commonwealth 187 CLR, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted):
‘Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth. Dawson J expressed the doctrine in these terms:
"[T]he power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’."
Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.’
48 In XYZ 80 ALJR at 1041 [10] Gleeson CJ said:
‘For this argument to succeed, it would be necessary for the court to depart from the decision in Polyukhovich, and to decide that the construction placed upon s 51(xxix) by every member of the court in that case was wrong. In my view, the court, upon reconsideration, should hold that Polyukhovich was correctly decided in so far as the decision bears upon the question of construction that arises in this case. ... There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia’s relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of – that is, external to – Australia (Polyukhovich at CLR 528; ALR 551-2 per Mason CJ, CLR 602; ALR 608 per Deane J, CLR 632; ALR 630 per Dawson J, CLR 696; ALR 677 per Gaudron J, CLR 714; ALR 691 per McHugh J; Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183; 123 ALR 1 ; Victoria v Commonwealth [1995] HCA 45; (1996) 187 CLR 416 at 485; 138 ALR 129 at 145 (the Industrial Relations Act Case) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). That conclusion represents the current doctrine of the court on the external affairs power, and should be maintained because it is correct.’
Additionally Gummow, Hayne and Crennan JJ said at 1050 [49]:
‘The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as ss 50BA and 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia.’
It is the reference by their Honours in this paragraph to the connection element of the externality principle which makes their statement particularly relevant here, even if not binding ratio and in the character of obiter.
49 Furthermore the geographic externality principle accepted in Polyukhovich 172 CLR has subsequently applied as the ratio in Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183 and in De L 187 CLR; XYZ 80 ALJR at 1081 [200] per Callinan and Heydon JJ, where it was also accepted that, while elsewhere not forming part of a ratio, the principle had attracted considerable support from the Court. 50 Subsequently, in Ul-Haque v Regina NSWCCA 241 the New South Wales Court of Criminal Appeal considered the application of the principle and reached the conclusion that Polyukhovich 172 CLR remains a binding High Court authority for the proposition that a law that operates on conduct geographically external to Australia is for that reason alone necessarily a law with respect to external affairs within s 51(xxix) of the Constitution. The issue before that Court arose on a motion to quash an indictment alleging an offence against s 102.5(1) of the Criminal Code for engagement in receipt of training in arms from a terrorist organisation known by the applicant to be such. The applicant was an Australian citizen. McClellan CJ at CL, in whose reasons Kirby and Hoeben JJ concurred, said that in no case subsequent to Polyukhovich has a majority of the High Court suggested that the Polyukhovich principle was wrong and that, although expressing doubts about the principle in XYZ 80 ALJR, Kirby J refused to overrule it. The Court therefore concluded it was bound by Polyukovich 172 CLR. 51 In my view that is precisely the position which pertains here. This Court would be bound, on the hearing of the plaintiff’s proposed pleading in relation to s 198A, to apply the Polyukhovich principle. That application would sustain as a question of constitutional power any aspects of the section being in exercise of the external affairs power. This would be so whether or not the section also received support from the other constitutional powers discussed in this portion of these reasons. 52 In short, the plaintiff’s proposed pleading on s 198A would be bound to fail in this Court on proper construction of the external affairs power. 53 That would not necessarily be the position in the High Court. There the plaintiff could succeed if the Court took a different approach to the principle in Polyukhovich 172 CLR, namely by adopting the approach of Brennan J and Toohey J and requiring a connection between the subject of the application of that constitutional power and Australia.
Other paragraphs affected:
54 Other paragraphs of the proposed pleading affected by these contentions are [37], [38.2], [41] and [42.1] (to the extent that they are tied to [7]), [87.1.4] (the claim is answered by the validity of s 198A), and [89] (to the extent that it is tied to [37] and [41]). I would also add [11] of the pleading.
55 By an amendment to the Migration Act which came into force on 12 April 2002 the Commonwealth of Australia inserted s 198B which provides that an offshore entry person may be brought into Australia from a declared country, if necessary by force. The section reads:
‘(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.’
56 Section 198B is pleaded in [8] as having been made and in [9] as being ultra vires. Paragraph [9] of the claim reads:
‘Section 198B is ultra vires the Commonwealth. It was purportedly enacted pursuant to the legislative powers pleaded in paragraph 7 above. Those provisions did not and do not enable the Parliament to make a law such as section 198B, authorising an officer of the Commonwealth to take control of the person of a friendly alien in another country, if necessary by force, and to cause the alien to be returned to the Commonwealth.’
57 The defendant objects to the whole of the paragraph on the same grounds as the objection to s 198A. The defendant submits that the plaintiff does not plead that he was brought to Australia by force or against his will. Therefore, in the absence of such a plea, the alleged invalidity of s 198B does not arise as an issue for determination in the proceedings. Further, the defendant relies on the fact that, while the relief sought by the plaintiff against the proposed first defendant includes a declaration that s 198A of the Migration Act is invalid, no such relief is sought in relation to s 198B. However, the plaintiff contends, correctly I consider, that as s 198B forms part of the scheme instituted by s 198A it stands or falls with that section so that no claim for relief is necessary. The defendant also disputes that the contention based on proportionality has any application to s 198B. 58 The plaintiff contends that in Chi Kheng Lim 176 CLR administrative detention of an alien was held to be valid for the purposes of (1) considering a visa application and (2) for deporting the alien if the application is unsuccessful. It would be argued that there is no indication in s 198B that the person will be brought to Australia for the purposes of making a visa application and having it considered, rather, only a ‘temporary purpose’ is referred to in the provision. This section would be challenged on the basis that it allows the Commonwealth to bring to Australia a transitory person for a purpose which is entirely unrelated to immigration, and thus it cannot fall within the immigration power. The plaintiff would contend the provision could only fall within the aliens power; however, it is disproportionate to such a power. Additionally it would be argued the external affairs power, too, will fail for reasons of disproportionality. The use of force and restraint under s 198B would be a form of detention not valid according to the two purposes referred to in Chi Kheng Lim 176 CLR. 59 This objection falls to be decided in the same way as the objection to the pleadings affecting s 198A. It is clearly heavily intertwined with the issues of constitutional power. In respect of the external affairs power, there is no basis apparent for the application of any consideration of proportionality. In short, the section appears beyond argument to be sustainable by the external affairs power in application of the Polyukhovich principle. 60 Other paragraphs affected are [89] of the claim (to the extent that it is tied to [44]).
VALIDITY OF s 198A(3) DECLARATION: CLAIMS [10], [11] AND [12]
61 In [10] of the claim it is pleaded that on 2 October 2001 the second defendant purportedly made a written declaration in relation to Nauru. In [11] it is sought to plead that, by reason of the matters pleaded concerning the reach of constitutional power in [7], the declaration was unlawful and of no effect. In [12] it is pleaded in the alternative that, if Parliament had the necessary legislative power to enact s 198A, the declaration was unlawful and of no effect because, as at 2 October 2001, Nauru did not meet certain requirements then pleaded. These were (1) Nauru did not provide access, for persons seeking asylum, to effective measures for assessing their need for protection and, in particular, did not provide unaccompanied minors seeking asylum with an independent mentor, or legal or other assistance to assist them with the preparation and processing of their applications for the recognition of their status as refugees; (2) Nauru did not provide protection for persons seeking asylum, pending determination of their refugee status; (3) Nauru did not provide protection to persons who were given refugee status pending their voluntary repatriation to their country of origin or resettlement in another country; and (4) Nauru did not meet relevant human rights standards in purporting to provide protection to persons seeking asylum or persons who had been given refugee status. Each of these pleadings are additionally particularised. 62 The defendant objects to [11] on the ground that it must fall with [7]. Further, if the defendant’s objection to [7] is upheld, the defendant objects to the use of the word ‘purportedly’ in [10]. In relation to [12] the objection is to the whole paragraph. The defendant contends that the factual accuracy of the matters declared in respect of a particular country is not a condition of the validity of the declaration. Further that it is not even necessary that the defendant be ‘satisfied’ as to those matters. See P1 of 2003 FCA 1029 (French J) at [47], [49] and [50]; P1 of 2003 FCA 1370 (Nicholson J) at [14]; and Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69 at 77 (Eremin 21 ALD). 63 So far as these submissions of the defendant are based upon the objection to the transitory person provisions in s 198A and s 198B, the plaintiff relies upon the earlier submissions on those issues. He also relies on the contentions under the heading the ‘Powers Under the Migration Act Limited by the Guardianship Act’ relating to the alleged conflict between the Migration Act and the Guardianship Act. He further argues that Eremin 21 ALD is distinguishable. 64 In Eremin 21 ALD the appellant sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a refusal to grant to him an extended eligibility entry permit. Regulation 129 of the Migration Regulations 1990 (Cth) prescribed the criteria in relation to such a permit. They operated by reference to the specification of various states of affairs by the Minister by notice published in the Gazette. These were (1) a substantial political upheaval involving individual danger to the applicant having taken place in the applicant’s usual country of residence which had been specified by the Minister by gazetted notice; (2) a major natural disaster involving the destruction of the applicant’s home and livelihood, having met the same two conditions; or (3) significant changes, involving significant repression of a political, social, religious or ethnic group or body of which the applicant is a member, again having met the same two conditions; with the result that there was a substantial probability that the applicant personally would suffer serious and lasting consequences. It was common ground that there was no such specification pertaining to any situation in the USSR, relevant or allegedly relevant to the appellant, who was a citizen of that country. 65 The Full Court (Lockhart, Gummow and Foster JJ) rejected a contention that the regulation required the gazettal of these conditions to be determined with reference to particular applicants, holding that their purpose was to provide the decision-maker with an objective criterion. This, it was said, did not preclude the possibility that in a particular case the decision-maker could be under a duty to make reasonable enquiries to ascertain the true position in relation to the applicant. On the other hand, when a decision-maker was dealing with the application of a particular person, he or she did not have to consider whether there should not be a notice published by the Minister in the Gazette. 66 Relevantly to the present application for leave, the appellant in Eremin 21 ALD also submitted that reg 129 was beyond the regulation making power in the sense discussed in Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402 and Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250, because the question whether any of the events or circumstances stipulated therein existed was one of fact, yet the Minister might be blind to the fact and not publish the appropriate notice. The Full Court said at 77 that as the regulation used terms such as ‘substantial’, ‘significant’ and ‘major’, questions could arise as to the state of affairs in other countries which involve issues very much of degree rather than simply of indisputable ‘fact’. It considered the resolution of such issues was conveniently reposed in the Minister. 67 Arguably Eremin 21 ALD may be distinguished from the present application for leave on the ground that it concerned the validity of a declaration in circumstances where a notice had not been gazetted. The present application in this respect relates to the validity of a declaration which has been made. Both, however, concern Ministerial determination of pre-conditions on an objective basis. While Eremin 21 ALD was concerned with validity in relation to the appellant’s personal circumstances, the present application questions the validity of the declaration per se without reference to the plaintiff’s personal circumstances. The issue here is not whether a notice should be gazetted; it is whether the declaration should have been made at all. 68 So far as Eremin 21 ALD is relevant to the present application, it may provide support for a submission from the defendant that questions arising as to existence of pre-conditions are issues ‘very much of degree rather than indisputable fact’ so that they should properly rest with the Minister and not the courts. However, Eremin 21 ALD does not itself determine that issue in the circumstances of the present application. It would require argument for such a determination to be made. 69 Doubtless in that argument reference would be made to the precise language of s 198A(3). Words such as ‘protection’, ‘access’, ‘effective’ and ‘relevant standards’ are arguably subjective. These may all be ‘of degree rather than indisputable fact.’ It may be that the wording enabling the Minister to ‘declare that a country...’ removes the consideration of the issue of Ministerial satisfaction of pre-conditions. However, those issues can only be determined on proper argument. They are not rendered obviously futile by Eremin 21 ALD. 70 It follows that if s 198A is constitutionally valid it does not mean that the making of this particular declaration (regarding Nauru) pursuant to s 198A(3) is not arguably invalid. It is still arguable that, even if s 198A is valid, its exercise in this particular case was not valid (because, for example, the defendant needed to be satisfied of the pre-conditions). I do not consider such argument is rendered obviously futile by Eremin 21 ALD or otherwise. 71 Other paragraphs affected are [27.5], [37], [38.1], [39.6] and [40] (to the extent that they are tied to [26.3]); [38.2], [42.1] and [43] (to the extent that they are tied to [11] and [12]); [89] (to the extent that it is tied to [27.5] and [37]); [91] (to the extent that it is tied to [37], [38.1], [38.2], [39.6] and [40]); [93] (to the extent that it is tied to [37], [38.1], [39.6], [40], [42.1] and [43]) and [94] (to the extent that it assumes unlawful detention).
POWERS UNDER THE MIGRATION ACT LIMITED BY THE GUARDIANSHIP ACT: CLAIM [26]
72 This issue is raised by [26] of the claim, which reads:
‘26. After he had entered Australia, as pleaded in par 23 above:
26.1 the plaintiff had a right not to be removed from Australia by officers and/or servants and/or agents of the first defendant and/or agents of the second defendant; and
26.2 the plaintiff had a right not to be taken by officers and/or servants and/or agents of the first defendant and/or agents of the second defendant to a country outside Australia (the country)
unless and until
26.3 the second defendant had lawfully declared that the country met the criteria contained in s 198A(3);
26.4 the second defendant, as the guardian of the plaintiff, had decided that it was in the plaintiff’s best interests to be taken to the country; and
26.5 the second defendant had consented in writing to the removal of the plaintiff from Australia under the provisions of s 6A(1) of the [Guardianship Act].’
73 In R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; (1975) 133 CLR 369 the High Court held that the Guardianship Act was a valid exercise of the immigration power of the Constitution. Since then, the Guardianship Act has been amended so that the criterion of its operation is no longer an ‘immigrant child’ but a ‘non-citizen child.’ The defendant’s objections do not seek to challenge the validity of the Guardianship Act. 74 The principal basis of the defendant’s objection to the whole of this paragraph is on the ground that it is precluded by the recent decision of the High Court in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 54; (2004) 79 ALJR 190; 210 ALR 190 (WACB 79 ALJR). Further, the defendant submits that the paragraph fails to identify the source of the alleged rights referred to in [26.1] and [26.2]. 75 For the purposes of opposing the plaintiff’s proposed amendments to the statement of claim, the defendant does not seek to rely on the doubts expressed by Gleeson CJ, McHugh, Gummow and Heydon JJ in WACB 79 ALJR at [42] and footnote 35 concerning the defendant’s role under the Guardianship Act as guardian in relation to a non-citizen (as the plaintiff claims to have been), who has entered Australia unlawfully. Rather, the defendant relies upon their Honours’ rejection, as ill-founded, of the submission by the appellant in that case that, for the Minister as statutory guardian, the interests of the minor were paramount and took precedence over the Minister’s statutory obligations under the Migration Act: WACB 79 ALJR at [42]. Reliance is also placed on the observations of their Honours that any obligation of the Minister under a different enactment could have no effect on the construction of s 478(1)(b) of the Migration Act: WACB 79 ALJR at [42]. Likewise, it is said that any obligations of the defendant under the Guardianship Act could not affect the power of removal given to officers under s 198A(1) of the Migration Act. It is therefore submitted that the extent of that power is to be found in the provisions of s 198A(1) as properly construed. 76 Additionally the defendant submits that, assuming the Guardianship Act applied to an alien child arriving unlawfully in Australia, any general powers and obligations of the defendant under that Act would have to be read as subject to the more specific provisions of the Migration Act, including s 198A: see WACB 79 ALJR at [106] per Kirby J. Therefore it is said that just as s 478 took priority over any general duties owed by the Minister under the Guardianship Act to the appellant in WACB 79 ALJR, so here the express provisions of s 198A in relation to the plaintiff as an offshore entry person took priority over any general duties owed by the defendant to the plaintiff under the Guardianship Act. Accordingly, there could be no liability on the part of the defendant as a result of an officer exercising his or her powers under s 198A of the Migration Act in relation to the plaintiff as an offshore entry person. The plaintiff nevertheless wishes to contend that, in the particular context with which he is concerned, the relevant provisions of the Migration Act should be characterised as general. In contrast, it is said that certain provisions of the Guardianship Act should be characterised as specific so that these should dominate. 77 Further it is contended by the defendant that whatever the extent of his obligations under the Guardianship Act, he could not have any obligations under that Act in respect of a non-citizen child once the child had been taken from Australia by an officer exercising powers under s 198A(1) of the Migration Act. 78 Also, the expression ‘offshore entry person’ in s 198A(1) of the Migration Act includes non-citizen children. The definition of offshore entry person in s 5 of the Migration Act refers to a person who became an unlawful non-citizen because of that person’s entry to Australia at an excised offshore place. As Kirby J has observed, a ‘non-citizen’ as defined by the Migration Act includes a child who is not an Australian citizen: see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 265 at [157]. 79 Therefore it is argued by the defendant that it follows an officer may take a non-citizen child who is an offshore entry person from Australia to another country pursuant to s 198A(1) of the Migration Act; and that, even if the defendant was the guardian of the plaintiff pursuant to the Guardianship Act, that role of guardian was subject to the specific provisions of s 198A(1) of the Migration Act. 80 Further it is argued that, as Gleeson CJ, McHugh, Gummow and Heydon JJ noted in WACB 79 ALJR, the requirement in s 6A(1) of the Guardianship Act that a non-citizen child shall not leave Australia except with the consent in writing of the Minister, is qualified by s 6A(4) of that Act. That provides the section shall not affect the operation of any other law regulating the departure of persons from Australia: WACB 79 ALJR at [42]. Section 198A(1) of the Migration Act is said clearly to be seen as a law regulating the departure of persons from Australia. 81 The ratio of WACB 79 ALJR is that notification of a decision for the purposes of s 478(1)(b) of the Migration Act as it stood at the relevant time occurred when the written statement was physically ‘given’ to the appellant. That ratio is not material to the claim the plaintiff seeks leave to advance. What is relevant is the obiter of the High Court in relation to the relevance of the Guardianship Act. Gleeson CJ, McHugh, Gummow and Heydon JJ at [42] were categorical in their statement that ‘any obligation of the Minister under a different enactment can have no effect on’ the issue of construction arising in relation to s 478(1)(b). Further that s 6A(4) provides that s 6A ‘shall not affect the operation of any other law regulating the departure of persons from Australia.’ There is the additional view of Kirby J at [106] that any general powers and obligations of the Minister under the Guardianship Act would have to be read as subject to the more specific provisions of the Migration Act. It must therefore be accepted that there seems little room for the contentions which the plaintiff seeks to make in this section of the proposed claim. 82 Yet it remains the case that different provisions of the Migration Act are in issue here. It would seem at least open to argument that s 6A of the Guardianship Act, with its requirement of notice, may be taken as a specific rather than a general provision. It may likewise be open to argument that s 6A would never have any effect if it were ousted by provisions such as s 198A. Nor is it presently apparent whether any delegation of ministerial duties in relation to guardianship had occurred in the present case: cf Kirby J at [71]. That is, it cannot be safely concluded that argument is rendered obviously futile by the decision in WACB 79 ALJR even if that appears highly unlikely it might succeed in the light of the present dicta of the High Court on similar but not identical issues. 83 The submissions of the defendant also make reference to X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524 (X v MIMA 92 FCR) referred to in the plaintiff’s submissions. There North J dismissed a motion by the Minister seeking the dismissal of a review application by a Kenyan minor on the ground that he had not applied through the appointment of a tutor. The defendant contends that the fact the Court there held it had jurisdiction to supervise the defendant’s function as guardian of a non-citizen child is not materially relevant. It is submitted that the possible status of the defendant as the plaintiff’s guardian and the possible jurisdiction of the Court to supervise that guardianship role do not deny the specific provisions of s 198A(1) of the Migration Act which allow an officer to take an offshore entry person who is a non-citizen child to another country: see WACB 79 ALJR at [42] and [106]. The reasoning in X v MIMA 92 FCR would not appear to be centrally relevant to the claims now in issue. 84 The defendant, in further response to the plaintiff’s submissions, argues it is also irrelevant whether the present matter is distinguishable from Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29 (Odhiambo 122 FCR). He contends that as s 198A(1) of the Migration Act permits an offshore entry person who is a non-citizen child to be taken by an officer to another country, the taking of the plaintiff by an officer to another country could not give rise to any claims by the plaintiff based on the defendant’s general powers and obligations under the Guardianship Act, even assuming that the defendant was the plaintiff’s guardian under that Act. It would not seem that the reasoning in Odhiambo 122 FCR can do anything more for the plaintiff than provide support for the uncontested proposition that s 6 of the Guardianship Act confers on the Minister all the usual incidents of guardianship. 85 I do not agree that [26] and [27] fail to identify the source of alleged rights. It is patent that they are said to arise under the Guardianship Act and the related Convention on the Rights of the Child: [25]. Likewise, [38.1] and [39.1]. 86 Other paragraphs affected are [25], [26.4], [26.5], [27.5] and [29]; [37], [38.1]-[38.5], [39] and [40] (to the extent that they are tied to [26]); [42.2], [42.3], [42.4] and [43]; [84] and [85] (because they are premised on [25] and are tied to [27], [29] and [37]); and [89] (because it is linked to [27] and [28], which in turn are linked to [26] and [27.5])
CLAIMS PRECLUDED BY s 494AA AND s 494AB OF THE MIGRATION ACT: CLAIMS [67]-[83]
87 This objection relates to [67]-[83] of the proposed statement of claim. In those paragraphs reference is made to the request from the plaintiff’s solicitors to refer him for medical assessment; to the approaches from the Director-General of the Department of Community Development; to the reports of the clinical psychologists and psychiatric registrars; to the restraint imposed on the plaintiff; to the plaintiff’s infliction of self-harm; to the advices from the Department; to the commencement by Hussain of proceedings in the Family Court; to the plaintiff’s application to the RRT and its decision; and to the plaintiff’s release from immigration detention. 88 The defendant’s objections to these paragraphs of the proposed claim are that by virtue of ss 494AA and 494AB of the Migration Act this Court has no jurisdiction to entertain the claims in the proposed statement of claim insofar as those claims relate to any of the matters referred to in either of those sections and are based on events which have occurred or allegedly occurred since 25 December 2002, being the date of the last event or matter complained of in the current statement of claim, which was filed in the High Court with the writ on 3 January 2003: see WAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1631 (French J). On 18 June 2003, pursuant to s 44 of the Judiciary Act, in express reliance on s 44(2A), McHugh J remitted to this Court the ‘further proceedings in this action’, being the action commenced on 3 January 2003: see P1 of 2003 FCA 1029 at [15] (French J). Section 44 authorises the remittal of ‘[a]ny matter ... that is at any time pending in the High Court’, subject to the provisions therein contained. The defendant submits the plaintiff’s complaints about events occurring or allegedly occurring since 25 December 2002 (or, at the latest, 3 January 2003) could not and do not form any part of the ‘matter’ that was remitted by the order of McHugh J: compare Cam Mui Chi v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 (Cam Mui Chi 84 FCR) at 37-39 (Mansfield J); SZ v Minister for Immigration and Multicultural Affairs (2000) 172 ALR 172 (SZ v MIMA 172 ALR) (Lehane J) especially at [15]-[16]. 89 Section 494AA reads:
‘(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to an offshore entry by an offshore entry person;
(b) proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;
(c) proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;
(d) proceedings relating to the exercise of powers under section 198A.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.
offshore entry means any entry into Australia that occurs:
(a) at an excised offshore place; and
(b) after the excision time for the offshore place concerned.’
90 Section 494AB reads:
‘(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to the exercise of powers under section 198B;
(b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;
(c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;
(d) proceedings relating to the removal of a transitory person from Australia under this Act.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.’
91 In supplementary submissions the defendant contends that ss 494AA(1) and 494AB(1) do not prevent the proceedings continuing in this Court to the extent only that the proceedings involve the matter remitted by McHugh J, namely, the controversy between the parties defined by the statement of claim and defence filed in the High Court before the remittal. Various reasons are given in support of this view. The plaintiff agrees with the defendant’s submissions in relation to the effect upon jurisdiction of the sections, save for the submission concerning the limitation upon the matter remitted. The defendant argues that because the matter that was remitted is the controversy between the parties defined by the pleadings as they stood at the time of the remittal, it is not open to the plaintiff to seek to add new claims by amendment where those claims are not part of the controversy defined by the remitted pleadings. Therefore the application to these proceedings of the exception created by ss 494AA(3) and 494AB(3) to the general prohibition in ss 494AA(1) and 494AB(1) is said to be limited to the matter remitted by McHugh J on 18 June 2003. The defendant submits the exception does not extend to a new matter, such as the claims relating to events occurring in 2003 that the plaintiff now seeks to raise. 92 There are a number of issues which do not arise because the parties are in agreement concerning them. These are:
(a) with the enactment of ss 494AA and 494AB, the Federal Court would not have any jurisdiction to hear the claims the subject of this application for leave except as a consequence of remittal from the High Court. That is, it is accepted that it is the effect of ss 494AA(3) and 494AB(3) which enables the proceeding to be ‘instituted or continued’ in the Federal Court because the proceeding is one within the original jurisdiction of the High Court under s 75 of the Constitution. When the proceedings were instituted in the High Court it is apparent reliance was placed on s 75(v) of the Constitution, as writs of mandamus, prohibition and injunction were sought against the defendant as an officer of the Commonwealth. When the further proceedings were remitted to this Court, McHugh J expressly relied on s 44(2A) of the Judiciary Act, which permits remittal in a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. Counsel for the defendant told his Honour that the defendant did not take any point to the contrary to the proposition that the defendant was being sued on behalf of the Commonwealth. This indicates that a further basis for the original jurisdiction of the High Court could have been in accordance with s 75(iii), which confers such jurisdiction where the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. The proposed amended claim, whilst no longer seeking the above remedies which would confer the necessary jurisdiction under s 75(v), nevertheless attracts the jurisdiction found in s 75(iii) as the defendant is still being sued on behalf of the Commonwealth. The joinder of the Commonwealth as a defendant would also attract this jurisdiction.
(b) the power of remittal in s 44 of the Judiciary Act is not itself affected by ss 494AA(2) or 494AB(2). That is, when s 44(2A) provides for remittal to the Federal Court it cannot be understood that either of the latter two sub-sections have removed such jurisdiction from the High Court. The defendant accepts that each of the sub-sections (2) are directed to the items in the sub-sections (1) and not to the jurisdiction or powers of the High Court.
(c) upon remittal the Federal Court has the same jurisdiction as the High Court would have had. As was said in relation to remittal pursuant to s 44(2A), the Federal Court stands in the judicial shoes of the High Court: McCauley v Hamilton Island Enterprises Pty Ltd [1986] HCA 86; (1986) 61 ALJR 235 at 238 per Mason J.
(d) nevertheless, the Federal Court must apply its own purely procedural rules and deal with it in accordance with its own procedures in relation to interlocutory steps and the hearing: Commonwealth of Australia v Mewett (1994) 126 ALR 391 at 402 per Foster J.
(e) the ‘matter’ remitted refers to a ‘single justiciable controversy’ where the claims arise out of a common substratum of facts.
93 Where the plaintiff and the defendant part company is whether facts which have occurred after the institution of the proceedings in the High Court can be relevant in the sense of forming part of the remitted matter. To reach a view on what may be more probably arguable on that issue I turn to the following factors:
(1) The Judiciary Act
94 The power of remittal relates to a ‘matter’. That is defined in s 2 of the Judiciary Act as including any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter. 95 The pleading as it stood at the time of remittal of the matter was in essence whether the conduct relating to the initial detainment of the plaintiff in Australia, his transportation to and detention in Nauru, and his subsequent transportation to and detention in Australia, was unlawful. 96 The function of s 44 may be considered in the context of s 32 of the Judiciary Act. That provides that the High Court, in the exercise of its original jurisdiction in any cause or matter, shall have the power to grant all such remedies as any of the parties involved are entitled to, so that all matters of controversy regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, so that multiplicity of proceedings is avoided. This provision provides support for the plaintiff’s contention that the events occurring after the remitted proceedings were instituted in the original jurisdiction of the High Court, assuming they can be shown to be connected with or arising from the existing causes of action, should be included in the amended claim so that the matter is completely and finally determined and multiplicity of proceedings avoided. The same objective is sanctioned by FCR O 13 r 2(2).
97 When McHugh J made the order of remittal he relevantly ordered:
‘1. The further proceedings in this action be remitted to the Western Australian District Registry of the Federal Court of Australia
2. The application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court.....’
There were not any words of
limitation in the order. It related to ‘further proceedings’ in the
action.
(3) Character of remitted jurisdiction
98 In making the orders for remittal McHugh J stated that if the proceeding was remitted, the Federal Court would not be exercising its jurisdiction but would be exercising the jurisdiction of the High Court. This is the foundation of the reasoning by which the defendant accepts that neither ss 494AA nor 494AB preclude the Federal Court, standing in the shoes of the High Court, from exercising the remitted jurisdiction.
(4) Federal Court Rules
99 In Dinnison v Commonwealth of Australia (1997) 74 FCR 184 it was held by Foster J at 188-189 that once a High Court matter has been remitted to the Federal Court for hearing it becomes a proceeding in the Federal Court to be determined, in all respects, in accordance with the Federal Court’s procedures and in accordance with any relevant statute law impinging upon those procedures. Order 2 of the remittal orders is consistent with this. 100 The rule governing applications for amendment of pleadings is FCR O 13 r 2 which relevantly reads:
‘(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.’
Of particular importance are the following sub-rules:
‘(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9) Paragraph (7)(b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.’
101 Amendments to the FCR introducing sub-rules (7)(a), (7)(b), (8) and (9) came into effect upon gazettal on 14 December 2001, and as such these provisions were operational before the current proceedings were instituted. 102 It is apparent from FCR O 13 r 2(7)(a)(b), (8) and (9) that the pleading of a fact or matter that has occurred or arisen since the commencement of the proceeding, subject to no inconsistency with a time limitation (which is not alleged here), is able to be the subject of a grant of leave. These amendments have been discussed in Maritime Union of Australia v CSL Australia (2002) 113 IR 326, per Branson J at [18]:
‘O 13 r 2(7) of the Federal Court Rules has since 14 December 2001, subject to conditions not here relevant, allowed amendments to be made which add a new claim for relief, or a new foundation in law for a claim for relief, if the new claim for relief or new foundation in law arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding. Further O 13 r 2(8) now allows a pleading to be amended even if the amendment pleads a matter or fact which has occurred or arisen since the commencement of the proceeding.’
103 The defendant relied upon two authorities on this issue, each of which preceded the introduction of FCR O 13 r 2 (7b) and (8). The first was Cam Mui Chi 84 FCR. There Mansfield J held at 38 that where, upon remittal from the High Court, the Federal Court is required to determine whether a reviewable decision was a determination ‘according to law’, the Federal Court may amend the grounds accompanying the order nisi to recognise and give effect to a reason which emerges during argument relevant to that issue. The amendment sought was to add a further ground (or alternatively a further reason supporting an existing ground) and the power of amendment was in this regard within the jurisdiction of the Federal Court. The defendant contends that it supports his view because the amendment in issue was based on a decision made before the commencement of proceedings and so related to the matter remitted. 104 His Honour at 38 considered a submission that the jurisdiction of this Court on remitter was limited to jurisdiction to hear and determine precisely the matter remitted and only upon the ground contained within the order nisi. He rejected that contention and stated:
‘In my view, to recognise and give effect to a reason which emerged in argument that the Tribunal’s decision was not determined according to law is not to exercise a jurisdiction beyond that of which the Court is properly seized. That conclusion is in accordance with the views of Dawson J in Re O’Rielly; Ex parte Bayford Wholesale Pty Ltd [1983] HCA 27; (1983) 151 CLR 557 at 564 and of Mason J in McCauley v Hamilton Island Enterprises Pty Ltd [1986] HCA 86; (1986) 61 ALJR 235 at 238 on the nature of the jurisdiction of this Court upon a remitter under s 44 of the Judiciary Act. It is, in my view, also reflected in the decision of Foster J in Dinnison v Commonwealth (1997) 74 FCR 184...’
105 The next was SZ v MIMA 172 ALR at 177-178 per Lehane J where the Court agreed with the submission of the Minister that it could not acquire jurisdiction to determine controversies concerning other judicially reviewable decisions where the time for making the relevant application had expired (except on further remittal) and that the matter remitted could ‘extend only to the controversies to which the proceedings related at the time of the remitter’. I agree with the submission of the plaintiff that SZ v MIMA 172 ALR is manifestly distinguishable on the facts because there the applicant sought leave to add further applicants to the schedule of represented persons or to join additional applicants from time to time. 106 A further authority referred to by the plaintiff was Bourke v State Bank of New South Wales (1988) 22 FCR 378, where Wilcox J stated at 393-394 that parts of the claim dealing with events occurring after the representations in question were made (but before proceedings were instituted) should be struck out as they were ‘clearly unconnected’ with the measure of damages. It was said by his Honour that events occurring at that stage may be material to the claim, but only if they go to the damage suffered by the applicants. He stated that if an allegation is arguably relevant to the calculation of damages, it should not be struck out. The defendant here has submitted that while subsequent events may be relevant to the issue of damages based on the existing claims, amendments cannot raise additional claims based on these subsequent events. 107 These authorities were all decided prior to the amendment to FCR O 13 r 2 introducing sub-rules (7)(a), (7)(b), (8) and (9) in 2001 and are thus of little use. The more relevant case is Maritime Union 113 IR.
(6) Whether a single justiciable controversy
108 The plaintiff submits that a ‘matter’ refers to a single justiciable controversy: Gregory v Philip Morris Ltd (1988) 80 ALR 455 (Gregory 80 ALR) at 480 per Wilcox and Ryan JJ. The acts and omissions sought to be included in the amended claim, it is asserted, form part of such a single controversy. The defendant has accepted that ‘matter’ may be so defined but submits that, according to Gregory 80 ALR at 480, any additional claims sought to be included must arise from a ‘common substratum’ of facts. It is submitted by the defendant that the Court does not have jurisdiction in respect of claims based on facts which have occurred since the proceedings were instituted and that any such claims would not form part of the same substratum of facts. In my view however, the amendments sought would form part of a single judiciable controversy and the ‘subsequent facts’ in question and any claims arising from them are intertwined with and directly arise from the facts prior to the remittal order. The proposed facts to be included are the result of the plaintiff’s transportation to and continued detention in Australia. They form part of the same subject matter. 109 To conclude on this issue, the position is that FCR O 13 r 2(7)(a), (7)(b) and (8) allow the plaintiff to seek amendments so as to introduce subsequent facts and new claims based on existing facts or such subsequent facts. Sub-rule (8) permits the inclusion of a ‘fact or matter that has occurred or arisen since the commencement of the proceeding’ and this would apply irrespective of whether these facts are the basis for any new or existing claim for relief. Sub-rule (7)(b) permits such facts or matters as those described in (8) to become the basis for a new claim for relief. In this case the proposed additional facts have the necessary connection with the existing pleaded circumstances. Thus to the extent that any claims rely on these subsequent facts, I am satisfied that they may be permitted. In my view FCR O 13 r 2 provides the necessary support for the plaintiff to be given leave for such amendments. Sections 494AA and 494AB are therefore not an obstacle to that course. 110 Other paragraphs affected by this objection are [67]-[83]; [84] (to the extent that it relates to [67]-[83]); [85.18] and [85.20]-[85.26]; [87.1.8] and [87.1.10]-[87.1.16]; [88] (to the extent that it relates to [87.1.8] and [87.1.10]-[87.1.16]); and [89] (to the extent that it relates to events occurring after the commencement of proceedings in the High Court).
The plaintiff falsely imprisoned: claims [30], [31] and [89]
111 In [30], [31] and [89] it is pleaded that officers of the defence force ship Tobruk caused the plaintiff to disembark on Christmas Island where he was detained from 14 November 2001 to 29 December 2001. It is then pleaded that the defendants falsely imprisoned the plaintiff from around 14 November 2001 until 25 February 2004. The defendant has submitted that nothing is alleged to provide the foundation for the claim that the detention on Christmas Island was unlawful. The defendant has objected to [31] (and, by association, [94.1]) on the basis that the detention on Christmas Island was mandatory by virtue of ss 189 and 196 of the Migration Act as the plaintiff was an unlawful non-citizen. In relation to the detention subsequent to Christmas Island, consideration of the legality of the declaration is necessary. The defendant’s objections concerning the limitation of the remitted matter in relation to those events occurring after the institution of proceedings would also be relevant in this regard.
112 This plea is that the second defendant’s behaviour, by engaging in alleged unlawful or reckless actions (associated with directing his agents to fly the plaintiff from Christmas Island to Nauru) constituted a misfeasance in his office as Minister. In regards to this claim the plaintiff’s submissions make reference to [37]-[40]. Objections to these paragraphs by the defendant submit that the source of the alleged rights referred to in the paragraphs has not been identified. These paragraphs also necessitate consideration of the lawfulness of the declaration and the alleged guardianship duties that existed.
The defendants breached a duty of care they owed the plaintiff: claim [86]
113 The defendant objects to [86] (to the extent it is based on [25], [26], [27] and [37]). The paragraph pleads that the defendants owed the plaintiff a duty of care. The defendant also objects to [87] (to the extent it is based on the same paragraphs and [85]). Paragraph [87] pleads alleged breaches of the duty of care in the following terms:
‘87. In breach of the duty of care:
87.1 the first defendant, by its officers and/or servants and/or agents:
87.1.1 removed the plaintiff from Australia or caused or permitted the plaintiff to be removed from Australia as pleaded in pars 27 and 28 above;
87.1.2 detained the plaintiff or caused or permitted the plaintiff to be detained on Christmas Island, as pleaded in par 31 above;
87.1.3 failed or neglected to obtain medical treatment for the arm injury, as pleaded in par 33 above;
87.1.4 removed the plaintiff or caused or permitted the plaintiff to be removed from Christmas Island and transported the plaintiff or caused or permitted the plaintiff to be transported to Nauru, as pleaded in par 37 above;
87.1.5 detained the plaintiff or caused or permitted the plaintiff to be detained in Nauru from 29 December 2001 to 3 November 2002, as pleaded in par 44 above;
87.1.6 failed or neglected to obtain treatment for the arm injury, as pleaded in par 50 above;
87.1.7 refused a request by the plaintiff for Dr Honey to examine the arm injury, as pleaded in par 53 above;
87.1.8 refused to refer the plaintiff to the AGMO, as pleaded in par 67 above;
87.1.9 denied officers of the DCD access to the plaintiff, as pleaded in par 55 above;
87.1.10 failed or neglected to respond to Ms Brazier’s letter dated 25 March 2003 and failed or neglected to release the plaintiff from detention, as pleaded in par 68 above;
87.1.11 refused to release the plaintiff from detention and place him in home based accommodation, as recommended by Ms Brazier in her letter dated 18 June 2003, as pleaded in par 73 above;
87.1.12 failed or neglected to have any or any proper regard to Dr Burton’s report dated 27 May 2003, as pleaded in par 70 above;
87.1.13 failed or neglected to accept the recommendation of the DCD, contrary to the terms of the Instruction, as pleaded in par 73 above;
87.1.14 failed or neglected to accept the recommendation of the DCD, as made in Ms Brazier’s letter dated 2 July 2003, contrary to the terms of the Instruction, as pleaded in par 76 above;
87.1.15 failed or neglected to have any or any proper regard for Dr Simon’s report, as pleaded in par 76 above;
87.1.16 failed or neglected to have any or any proper regard to Dr Voon’s report, as pleaded in par 79 above;
87.2. the second defendant performed the acts and made the omissions pleaded in par 85 above.’
The defendant objects to the existence of a guardianship relationship with the plaintiff as purported in [25]. It is submitted by the defendant that [26] and [27] fail to identify the source of the alleged rights to which they refer and [26] also relates to the issues of the validity of the declaration and the guardianship obligations. The claims raised in [87] and, by way of reference to it, [85], would necessitate consideration of the arguments concerning the limitation of the remitted matter in relation to those events occurring after the institution of proceedings.
The second defendant acted in contumelious disregard of the plaintiff’s rights: claim [93]
114 The defendant objects to [93] (to the extent it is linked to [27], [30], [31], [37]-[40], [42], [43] and [47]). This pleads that by acting in the manner pleaded in [27], [28], [30], [31], [37]-[50], [53], [59]-[79] above, the second defendant acted in a manner which was in contumelious disregard of the plaintiff’s rights. Paragraphs [27], [28], [30] and [31] address the removal to and detention on Christmas Island; and [37]–[50] address the removal and detention on Nauru. Paragraph [53] relates to the defendant’s refusal of treatment for the plaintiff’s arm injury; and [59]-[79] relate to the various psychological opinions given in relation to the plaintiff and the defendant’s refusal of treatment. The defendant has submitted that [27] fails to identify the source of the alleged rights to which it refers, and that the detention on Christmas Island referred to in [31] was mandatory by virtue of ss 189 and 196 of the Migration Act as the plaintiff was an unlawful non-citizen. It is said that [37] – [40], [42] and [43] also fail to identify the source of any rights. The arguments relating to guardianship duties and the lawfulness of the declaration are again raised in [38]. The defendant says [47] is objectionable as the Nauru officers are not properly identified and it does not support any claim for relief. In relation to those events occurring after the institution of proceedings, the arguments concerning the limitation of the remitted matter are again raised. The issues raised in regards to this claim clearly depend upon the outcome of the objections which have already been considered.
115 It is apparent that the claims based on false imprisonment, misfeasance in public office, duty of care and contumelious disregard are to a large extent dependent upon the outcome of what have been referred to as the ‘principal objections’. Considering that the amendments sought by the plaintiff pertaining to these principal objections have to some degree been considered not obviously futile, it would appear to follow that the more peripheral claims will also be arguable, to the extent that they are dependant on the principal arguments which are not obviously futile.
116 The defendant objects to [13]-[19] of the proposed amended statement of claim on the ground that it states the experiences of the plaintiff prior to arrival in Australia, which is irrelevant. I do not agree. The plaintiff proposes to plead in [45] and [81] that he made an application for a protection visa as a refugee. What is stated in [13]-[19] is explicative of why that may have occurred. The plaintiff asserts the challenged paragraphs are therefore relevant to the issue of damages arising from his unlawful removal from Australia, which he wishes to contend deprived him of assistance, advice and access to Australian tribunals and courts in pursuing his claim for refugee status. The plaintiff also wishes to contend that it relates to the duty of care owed to him having regard to his past experiences and his physical and psychological vulnerability. I do not see the paragraphs as causing prejudice, embarrassment or unnecessary delay.
Plaintiff’s experience in international waters
117 I reject the objection that [22] of the proposed claim is irrelevant. It is relevant to the reason why the plaintiff was required to return to Australia to give evidence at a coronial inquest: [47].
Plaintiff’s removal from Ashmore Reef to Christmas Island
118 The claim in [28] is also not irrelevant; it relates to the claim of breach of provisions of the Guardianship Act.
Plaintiff’s detention on Christmas Island
119 The claim in [31] is likewise not irrelevant because the plaintiff will argue that while detention was mandatory, the circumstances were not and his best interests required that he be detained in mainland Australia.
Identification of Nauru Officers
120 Paragraph [34] and [44] are not embarrassing and the description of the officers is sufficiently addressed in [3].
Plaintiff’s place of detention on Nauru
121 With regard to the reference to detention in [44], the plaintiff is unable, absent discovery, to particularise the place of detention. In any event, such places of detention would be well known to the defendant. Therefore [45] or [48]-[51] require no amendment.
Knowledge of grant of visa to Hussain
122 Paragraph [46] is relevant to explain the later pleadings in [55] and [80] and the steps taken by Hussain in relation to the plaintiff.
Plaintiff’s return to Australia for coronial inquest
123 Paragraph [47] is relevant because the plaintiff seeks to contend that the consequence of his return to Australia was that he again became the ward of the defendant (assuming he ceased to be his ward when he was first removed, which is not conceded).
Second Nauru Memo of Understanding
124 In relation to [57], the defendant does not make apparent the basis upon which it is alleged the pleading misrepresents the second Memo. However, the plaintiff does not make apparent why it is relevant that it be demonstrated that the Memo was in force when it was proposed to later return him to Nauru or that there was for a period no Memo in force. I therefore allow the objection on the ground the pleading in this paragraph has a tendency to delay.
Plaintiff’s alleged psychiatric condition
125 Paragraph [59] is relevant to [88.3] and the related pleadings of psychiatric reports. It is not objectionable within the tests in FCR O 11 r 16(b).
126 The parties, as requested, will be given the opportunity to consider these reasons and to bring draft orders appropriate in the circumstances.
Associate:
Dated: 7 February 2007
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Solicitor for the Plaintiff:
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Counsel for the Defendant:
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Solicitor for the Defendant:
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Date of Hearing:
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Date of Judgment:
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7 February 2007
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/65.html