SDAS v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 96 (28 March 2002)

Last Updated: 28 May 2002

FEDERAL COURT OF AUSTRALIA

SDAS v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 96

SDAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 95 OF 2002

O'LOUGHLIN J

28 MARCH 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 95 OF 2002

BETWEEN:	SDAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	28 MARCH 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 95 OF 2002

BETWEEN:	SDAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	28 MARCH 2002
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1 I have before me an application which was filed as a matter of urgency earlier today. In it, the applicant seeks an order that the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") be ordered to permit the applicant's lawyers to have access to and to remain at the Woomera Immigration Reception and Processing Centre. The nature of the application so made is, in effect, an application for a mandatory injunction. It seeks an order of the court directing the Minister to do something which the Minister, through his delegates and agents, is not otherwise prepared to do.

2 The background to the application has been provided through the annexures to the affidavit of Mr Jeremy James Moore, the solicitor for the applicant. That background commences with a letter from his firm dated 26 March 2002 to the manager of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). The letter is entitled "Access to the Woomera Detention Centre" and it confirms the advice that an associate of Mr Moore had earlier received to the effect that lawyers would be denied access to the centre over the Easter weekend because only essential staff would be present. The letter was in the nature of a complaint about that decision and the letter pressed for a change of arrangements so that a team of lawyers, interpreters and para-legals would be able to access detainees for the purposes of conferring with them, tendering legal advice and taking instructions. A reply was sent by facsimile transmission on the same date, 26 March, and I think it is essential that I should read into the transcript the entirety of the contents of that transmission:

"As you are aware there are major demonstrations planned in the Woomera area over the Easter period. There are clear indications from several groups involved in the demonstration that they intended to pursue a course of civil disobedience and disrupt the operations of the Centre.

These activities pose a serious risk to the security and good order of the facility. It has been decided for operational reasons that all legal visits will not be permitted at the centre from close of business Thursday 28 March 2002 to 0800 hours Tuesday 2 April 2002.

If you have any questions please do not hesitate to contact me."

It was signed by Peter McIntosh, who was described as the "Centre manager".

3 For the purpose of my reasons I accept that the transmission contains words to the effect:

* that a major demonstration had been planned;

* that there was a belief that a course of civil disobedience and disruption of the operations of the Centre would occur; and

* that there was a belief that there was a serious risk to the security and good order of the facility.

4 Mr Moore's associates responded to that transmission on 27 March, challenging the decision and emphasising the need for a team of seven people to attend the Woomera Centre over the Easter period for the purpose of taking instructions in a variety of matters, including impending trials in the Federal Court. There was an implied recognition in that letter of the possibility of a demonstration - or, at least, of protestors being present in the area. Paragraphs 5 and 6 of the letter were in the following terms:

"par 5 The protestors, if they turn up, will not be able to get within a kilometre of the detention centre.

par 6 We understand the South Australian police will have a large presence containing the protestors."

5 The final item that needs to be mentioned at this stage is the response from the Department to Mr  Moore of 27 March 2002. It reaffirmed the decision not to permit visits to the centre over the Easter weekend and it reaffirmed the belief that the authorities considered that the activities - which were not specified - planned for the weekend were considered to pose a risk to the security and good order of the centre. I infer, however, that the "activities" are the planned demonstration to which reference was made in the earlier transmission of 26 March 2002.

6 Dr Perry, counsel for the Minister, sought an adjournment of the proceedings to enable her to call oral evidence to expand upon the alleged demonstration and the information available in respect of it. I decline that application for reasons which I think can be justified. I believe that the information contained in Mr Moore's affidavit is sufficient for me to proceed to make a decision.

7 I turn now to a consideration of the provisions of the Migration Act 1956 (Cth) ("the Act"). Mr Moore drew to my attention and relied upon the provisions of s 256 of the Act. To paraphrase the provisions of that section, it is to this effect: the responsible authorities are directed (by the use of the word "shall") to afford a detainee all reasonable facilities for obtaining legal advice. There are other requirements in the section but what I have paraphrased is the essential thrust of the section so far as it relates to this application.

8 Mr Moore then drew to my attention the provisions of s 273 which carries the heading "Detention Centres". That section refers, in subs (1), to the Minister on behalf of the Commonwealth, having the power to cause detention centres to be established and maintained. Subsections (2) and (3) deal with the promulgation of regulations for detention centres and for the subject matters that may be included in the regulations.

9 It is next necessary to consider the provisions of s 474 of the act, as enacted with effect from 2 October 2001. It is the section which deals with the "privative clause decision", which is described as a decision that is final and conclusive and not the subject of appeal. In subs (2) a privative clause is then defined to mean a decision of an administrative character made, proposed to be made, or required to be made under the Act, or any regulation or other instrument under the Act, other than the decisions that are referred to in subss (4) and (5) of s 474. Subsection 474(5) provides that the regulations may specify that a further decision is not a privative clause decision, but there is nothing before me to suggest that that subsection has been utilised. If one turns to subs (4), it comprises thirty-one items - being either sections or divisions or parts of the Act - and one observes that item 14 relates to s 273, dealing, as it does, with detention centres. Thus a decision under of s 273 can be the subject of an appeal or a review in appropriate cases because the section is not regarded as relating to a privative clause decision. However, I accept the submission of Dr Perry that s 273 has no application to the issue which I must decide. I am not concerned about the Minister causing a detention centre to be established or maintained, nor am I concerned with the regulations which have been or may be made, nor with the contents of those regulations pursuant to that section. I therefore put s 273 to one side.

10 On the other hand, however, the absence of any reference to s 256 in subss (4) and (5) of s 474 means that a decision made under s 256 is caught by the privative clause provisions. It is final and conclusive and it is not to be the subject of any form of challenge or appeal. That in my opinion is sufficient to end the matter. But in case I am wrong, I wish to take the matter further. I wish to proceed upon the premise that s 256, contrary to my belief, might relate to an appealable decision. As I have already said, the thrust of s 256 is that the responsible authority "shall" afford a detainee:

"... all reasonable facilities for obtaining legal advice."

Now, it could not be said that there would be a failure to supply such facilities if the reason for the failure was beyond the control of the responsible person. An act of God, such as fire or flood, would be an obvious example. However, another example that would also be beyond the control of the responsible authority would be the intervention or the interference of a third person - and demonstrators, or a demonstration, would be such a third person. In this case there is some evidence to the effect that such a demonstration is planned. There is also evidence to the effect that the authorities are concerned about matters of security and the control of operations in the event of there being such a demonstration.

11 There are four interests which have to be considered when considering the operation of s 256: the first is that of the public interest; the second is the interest of the legal advisers who wish to utilise available time over the Easter weekend within which to attend at Woomera and take instructions from detainees; the third interest is the interest of the authorities who have the responsibility of safeguarding the welfare of the detainees and ensuring that matters of security are attended to; but then the fourth and the final interest is that of the detainees themselves, and theirs is the paramount interest with which I am concerned at the moment.

12 Bearing in mind that, as I said at the outset, this is an application for a mandatory injunction, I have to be satisfied that there is a serious issue to be tried and I have to be satisfied about the balance of convenience. Finally, I have to exercise my discretion having regard to all of those matters and the four interests that I have identified.

13 I regard myself as being compelled to proceed upon the premise that the authorities are acting in good faith. There is nothing before me which would suggest that I should contemplate an exercise of bad faith on the part of the authorities in making the decisions that are contained in the two letters to which I have referred. I therefore proceed upon this premise: first, I accept as a fact, the genuineness of Mr Moore and his associates and the genuineness of their wish to attend at Woomera for the purposes of assisting these people. They deserve nothing other than commendation for their willingness to give up their time so willingly. But I equally accept the genuineness of the authorities that they are concerned about matters of security. Throwing all of that into the exercise of balancing matters and exercising my discretion, I am compelled to come down in favour of the authorities. I am compelled to conclude that I should deny the application which would have this court interfering with matters identified by the authorities as matters of security.

14 I have the firm conviction that s 256 is caught by the privative clause provisions and that it denies me the right to interfere. However, I want it to be known that if I am wrong, if I do have a right to interfere, having balanced the matter as best I can, I am of the belief that it would not be appropriate for me to exercise such powers as I might have. That being the case I dismiss the application.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate:

Dated: 28 March 2002

Counsel for the Applicant:	Mr JJ Moore
Solicitor for the Applicant:	Jeremy Moore & Associates
Counsel for the Respondent:	Dr MA Perry
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 March 2002
Date of Judgment:	28 March 2002