Case: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 ; (2004) 219 CLR 486
Outcome: cited
The matter may also be viewed in another way. It is clear that immigration detainees are subjected to a liability that may include detention in a prison or remand centre. Such institutions are not only places, they are institutions and they are run in particular and well-understood ways. How strange it would be that detainees might be so liable yet, as the applicant urges, have a right without more , to sue the public officials (or their private enterprise contractual aides) engaged in so running such institutions. The Parliament should not be taken to have authorised such a thing. In my opinion the Act should be interpreted as necessarily depriving the detainee of any such rights and as granting the otherwise lawful gaolers in the prisons and remand centres immunity from any such suit. The latter would remain liable of course for any otherwise illegal maltreatment of a detainee. This view better accords generally with the approach taken in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 ; (2004) 219 CLR 486 to a different but analogous problem. 87 On this view, the provisions of the Correctional Centres Act, if they would otherwise have anything to do with the case, have no relevant application. I doubt that, in any event, they do. In the ordinary case of imprisonment or remand in custody, it is the law as to penal confinement and the criminal process (or as to mental health or the like) not the prisons legislation, which gives the judge etc the power to order a deprivation of liberty. It is the order of the judge or other official which has the effect of the deprivation of the subject person's right to liberty and which authorises the executive arm of government to implement such deprivation. The warrants that are usually issued by courts serve simply to assure the relevant executive officers (or other persons with an interest in the matter) that such an order has been made. Section 39 of the Correctional Centres Act and its succeeding sections in Part 8 are concerned with fixing the identity of the executive officers charged, from time to time, with giving effect to a court's order, and otherwise indicating merely how it is to be implemented, including, under s 46, by giving immunity from suit for bona fide purported performance of acts that the statute contemplates. 88 In that context there is no need, in the interests of vindicating the presumption against statutory interference with liberty (or otherwise), to read the concept "or other competent authority" in the s 4 definition of "inmate" in the Correctional Centres Act as being limited to authorities of the same kinds as are referred to in the preceding words, namely persons acting at least quasi-judicially. It seems more likely that the framers of that legislation intended to "make a fresh start" by employing those words (to adopt a phrase from Chancery: Re Commonwealth Oil Corp Ltd [1917] 1 Ch 404 at 412-3), to provide a general, catch-all description of all authorities of whatever kind that were competent to require the detention of a person in a prison or remand centre. 107 The argument proceeds that confinement in a prison and subjection to prison discipline therein, "the entire regime of prison discipline, coercion and penal administration", among "the general criminal population" is not reasonably necessary to effect the deportation of a person. Reliance was also placed upon Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51. This submission was said not to contravene the expressions of opinion in Behrooz [2004] HCA 36 ; 219 CLR 486 at [20] and [175]. 109 The respondent says that the power to detain in a prison is, in many circumstances, including protection of persons and good order in a non-prison detention centre, "reasonably capable of being seen as necessary for the purposes of deportation". I agree. The respondent further accepts that the officers' powers to detain in a prison must not be exercised for punitive purposes in the sense of punishing perceived misconduct, far less than merely to silence troublesome demagogues, and the Act must be read down accordingly, which it can be. Again, I agree. As to conditions in the prisons, if otherwise actionable for trespass against the person or negligent breach of a duty of care, they may be sued upon but the conditions do not make detention in the place of detention unlawful: Behrooz [2004] HCA 36 ; 219 CLR 486. Again I agree. 110 The question then becomes whether Mr Soh has been able to establish, as a matter of fact, that he was transferred to punish his involvement in the disturbance. I think that it was genuinely considered, by those involved in the decision-making, that his continued presence at Villawood was likely to constitute a threat to officers' safety and to good order and reasonable discipline there. As a matter of reality, it would probably not have been unwelcome to the ACM officers that Mr Soh should find his removal to prison unpleasant. But the decision was actually taken by Mr Nicholls, (and adopted by Ms Symons) not by any of the ACM people. 111 Mr Nicholls acted on a recommendation by Mr Donatiello. The minute which contained that recommendation was predicated on Mr Soh's perceived "behaviour and the risk he presents to other detainees and staff". While the perceived behaviour was described, the conclusion was that: Mr Soh has shown no sign that this behaviour is unacceptable and was later involved in standing guard to prevent ACM officers from removing the Indonesian national. Reports have previously been received regarding Mr Soh's role in agitating fellow detainees and he has been counselled about his behaviour. His behaviour in this latest incident makes him unsuitable for the low security environment of the VIDC and he poses a risk to the good order and management of the VIDC.