Besanko J’s recent decision in Burgess v Cth [2020] FCA 670 is a landmark in the intersection of migration and tort law. But in this thread I want to discuss its constitutional significance. And I want to do so in excruciating detail. 1/
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/670.html

First, the relevant provisions. 2/

Section 189 of the Migration Act (MA) requires an officer to detain a person who they know or reasonably suspect to be an unlawful non-citizen. 3/
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s189.html

Section 196(1) of the MA requires an unlawful non-citizen detained under s 189 to be detained until one of several conditions occurred. 4/
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s196.html

Section 196(4) of the MA provides that, if a person is detained as a result of the cancellation of their visa under specified sections, their detention is to continue unless a court finally determines the detention is unlawful. 5/

Section 196(5)(b) of the MA provides that s 196(4) applies even if a visa decision relating to the detained person is or may be unlawful. 6/

This begs the question: if a person is detained under s 189, does s 196(1) authorise their detention as long as the officer who initially detained them reasonably suspected that they were an unlawful non-citizen? 7/

Or does it require a continuous and ongoing reasonable suspicion, from all of the officers who continue to detain the non-citizen, that they are an unlawful non-citizen? 8/

That is: does the Department (through the detaining officer) only need to reasonably suspect someone is unlawful once? Or do the person who holds them in detention need to consistently hold onto that suspicion in order to keep them detained? 9/

Second, the facts. 10/

Mr Burgess’s visa was cancelled. An officer of the Minister reasonably suspected he was a non-citizen and detained him. 11/

But after his initial periods of detention, there was no evidence that any officer detaining him from that point onwards held a reasonable suspicion that he was an unlawful non-citizen. 12/

Was Mr Burgess’s detention lawful even without evidence that the officers who were detaining him held this reasonable suspicion? 13/

Third, the arguments and findings. 14/

The Minister argued that s 196 requires only an initial lawful detention under s 189. Mr Burgess argued that a continuing and ongoing reasonable suspicion is required for detention under s 196. 15/

Among his other arguments, Mr Burgess argued that the Minister’s construction would render ss 196(4) and (5)(b) constitutionally invalid. 16/

He argued that, if those sections justified continuing detention without an ongoing reasonable suspicion, the ongoing detention of the person would not be for any of the permissible constitutional purposes for which a person may be detained (as identified in Falzon v MIBP). 17/

And, if so, that detention would infringe the Constitution - which, aside from those 'permissible purposes' for non-judicial detention, solely invests judicial power in the Ch III courts of the Commonwealth. 18/

Besanko J accepted that Mr Burgess’s construction of s 196 - requiring a continued reasonable suspicion - was the better view. And in reaching that conclusion, he accepted that the Minister’s construction, if accepted, would render s 196(4) unconstitutional. 19/

Besanko J found that, for detention under s 196(4) to be linked to a permissible purpose of detention - ‘the purpose of removal from Australia’ - the detention ‘must be reasonably capable of being seen as necessary for the purposes of removal from Australia’. 20/

And Besanko J found (at [151]) that the continued existence of a reasonable suspicion that a person was unlawful was necessary for this purpose. 21/

Fourth: so what? What does this mean going forward? There are important practical implications. The Minister’s preferred construction of s 196(4) has been rejected. If that construction was employed within the Department, many people may have been detained as a result. 22/

The detention of those people may be open to question as a result - if the officers detaining those people did not have, or cannot be shown to have had, a reasonable suspicion that they were unlawful non-citizens throughout their detention. 23/

It may be open to these people, like Mr Burgess, to seek relief for false imprisonment, even if in most cases the damages may be nominal. 24/

But this is also an important theoretical landmark. The ‘permissible purposes’ of detention under Chu Kheng Lim and Falzon do not afford carte blanche to the Executive. 25/

Their boundaries can, and will, be carefully policed. And they impose exacting standards upon governments to ensure those purposes are met. End of thread. 26/26