FEDERAL COURT OF AUSTRALIA NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587 MIGRATION – application for an order restraining Minister from removing applicant from Sydney pending final determination for application for review of decision to cancel protection visa or determination of application for bridging visa – whether requirement in s 256 Migration Act 1958 (Cth) that Minister provide all "reasonable facilities" for the obtaining of legal advice or taking legal proceedings required applicant to remain in Sydney with legal representatives. Migration Act 1958 (Cth) ss 191, 196, 256 Judiciary Act 1903 (Cth) s 39B Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 cited Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583 cited Howard v Jarvis (1958) 98 CLR 177 cited Human Rights and Equal Opportunity Commission v Secretary, Department of Immigration (1996) 67 FCR 83 cited Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27 considered Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 997 considered Qantas Airways Ltd v Christie (1998) 193 CLR 280 cited R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198 cited R v Secretary of State for the Home Dept; Ex parte McAvoy (1984) 1 WLR 1408 considered R v Secretary of State for the Home Dept; Ex parte Herbage [1987] 1 QB 872 considered R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 considered Ruddock v Vadarlis (2001) 183 ALR 1 cited Slivak v Lurgi (Australia) Pty Ltd (2001) 177 ALR 585 cited Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 cited NAFC V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NO. N 1293 OF 2002 BEAUMONT J 18 DECEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1293 OF 2002 BETWEEN: NAFC APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BEAUMONT J DATE OF ORDER: 18 DECEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Unless within seven days the Minister files and serves an undertaking to the Court that reasonable facilities within the meaning of s 256 of the Act will be provided for the applicant at Woomera – Declare that the Minister is bound to provide such facilities. 2. Application otherwise dismissed. 3. Make 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 NEW SOUTH WALES DISTRICT REGISTRY N 1293 OF 2002 BETWEEN: NAFC APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BEAUMONT J DATE: 18 DECEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: Introduction 1 This matter raises for consideration some important questions about the meaning and operation of s 256 of the Migration Act 1958 (Cth) ("the Act"), relevantly as follows: "256 Where a person is in immigration detention under this Act, the person responsible for his ... detention shall, at the request of the [detainee], ... afford to him ... all reasonable facilities ... for obtaining legal advice or taking legal proceedings in relation to his ... detention." (Emphasis added) 2 The background to the present questions is as follows: 3 The applicant arrived in Australia by boat in October 1999. On 3 August 2000, he was granted a Protection (Class XA) sub-class 785 (Protection) visa, valid until 3 August 2003. On about 12 April 2002, he received a Notice of Intention to Cancel his visa under s 109 of the Act, based on an allegation that the applicant is not from Afghanistan, but from Pakistan. 4 (The applicant denies that he is from Pakistan and maintains that he is from Afghanistan, but this issue does not arise for determination here.) 5 At 8.30 am on 5 December 2002, the applicant received a Notice that his visa had been cancelled, and was immediately taken into custody with a view to his transportation to Woomera Detention Centre later that day. 6 At about 11.00 am on 5 December 2002, the applicant filed in the Refugee Review Tribunal ("the RRT") an application, under s 411(1)(d) of the Act, for review of the decision to cancel his visa. At the same time, the applicant lodged an application for a Bridging Visa sub-class 050. 7 Later on 5 December 2002, the applicant applied to this Court for, and was granted, an interim order restraining the Minister from removing the applicant to Woomera. That interim order is still in force. 8 On 6 December 2002, the applicant filed an application under s 39B of the Judiciary Act 1903 (Cth) "in relation to a decision of the [Minister] to remove [him] from Sydney and place him in immigration detention at the Woomera Detention centre", seeking the following orders: "(a) An order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application for review of a decision to cancel his protection visa. (b) Further or alternatively, an order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application to the Respondent for a subclass 050 Bridging visa." 9 On 10 December 2002, I heard this application on a final hearing basis, reserving my decision, but continuing the existing interim injunction until further order. The applicAnt's contentions 10 The applicant contends that the issues for determination are: (a) whether the applicant has an enforceable right or entitlement to be afforded all reasonable facilities for obtaining legal advice or taking legal proceedings, pursuant to s 256 of the Act; (b) whether, in the particular circumstances of the present case, the Minister's conduct in removing the applicant from Sydney will interfere with this right; (c) whether the applicant is entitled to an injunction preventing the Minister from removing the applicant from Sydney, or alternatively whether the applicant is entitled to an order of mandamus compelling the Minister to perform his duty under s 256 of the Act by refraining from removing the applicant from Sydney. 11 By way of factual background, the applicant relies upon the following: · Since at least 1 May 2002 the applicant has been legally represented in relation to the Notice of Intention by Mr Kerry Murphy, a solicitor employed by a Sydney-based firm, Craddock Murray Neumann. This is well known to the Minister. Over the period following delivery of the Notice of Intention to the applicant, Mr Murphy provided a substantial amount of evidence and made a number of submissions to the Minister in response to the Notice of Intention. The Minister is also aware that Mr Murphy has been representing the applicant in relation to other court proceedings in this Court and in the High Court of Australia. · On 9 December 2002 the applicant was interviewed by a delegate of the Minister in relation to his application for a bridging visa, pending the determination of his application for review of the decision to cancel his protection visa. At approximately 4.35 pm on that day, the delegate notified Mr Murphy that the bridging visa would be refused. At approximately 6.10 pm the applicant lodged an application for review of the delegate's decision on the bridging visa with the Migration Review Tribunal ("the MRT"). · The applicant, through his solicitor, has expressed his strong desire to remain in Sydney pending determination of his application to the RRT for review of the decision to cancel his protection visa, and of his application to the MRT for review of the decision to refuse his bridging visa, because the applicant wishes to be in the same city as his solicitor so that he can instruct his solicitor with regard to these applications. · Applications to the RRT for review of a decision to cancel a protection visa and applications to the MRT for review of a decision to refuse a bridging visa are both de novo applications. There is no evidence as to how long it will take for the RRT to make a decision on the application for review of the decision to cancel the protection visa. However, the application to the MRT for review of the decision to refuse the bridging visa must be completed within seven working days after the day on which the application is received, pursuant to s 367(1) and reg 4.27. It can therefore be expected that a decision on this will be provided by Wednesday, 18 December 2002. · It will be extremely difficult for Mr Murphy to represent the applicant adequately in both applications if the applicant is taken to the Woomera Detention Centre, because: (a) There are a great deal of complex issues of fact to be determined in the application for review of the decision to cancel the applicant's protection visa. Thus far, there has been expert evidence presented by both parties in relation to voice analysis and facial mapping of the applicant, and further expert evidence may be required for the hearing before the RRT. It may also be necessary to obtain further supporting evidence from the applicant, and from other witnesses who knew the applicant in Afghanistan. (b) There are also likely to be issues of fact to be determined in the application for review of the decision to refuse the applicant a bridging visa, including issues relating to the likelihood of absconding, where the applicant can reside during the term of any bridging visa, surety, reporting conditions, etc. (c) The applicant would not be able to obtain alternative legal representation if he is transferred to Woomera. Mr Murphy is familiar with the applicant's case and it would be difficult to brief an alternative representative. The applicant does not have funds to pay for legal representation, and Mr Murphy has been acting on a pro bono basis in relation to the cancellation of the applicant's protection visa and the refusal to provide him with a bridging visa. (d) Although the Minister has offered to provide a video link to the applicant to maintain contact with Mr Murphy free of charge, this would not be an adequate means of communication in the circumstances of this case. The complexity of the evidence required means that Mr Murphy would have to spend a large amount of hours with the applicant, and possibly other witnesses including expert witnesses. Mr Murphy's firm does not have the technology for video link-up, which would mean that, every time he wanted to have a conference with the applicant, he would have to make a booking at a place which has such technology and travel to that place for the purposes of the conference. Furthermore, it would be very difficult to show documents to the applicant to obtain his response, or to have him sign affidavits and statements. · The applicant is well aware that his wife and five children reside at Woomera; however, he has expressed a strong desire to remain in Sydney where he can properly communicate with his solicitor. 12 On the legal questions involved, the applicant contends: q There is a statutory "right" or "entitlement" under s 256 of the Act to be given "reasonable facilities" for obtaining legal advice or for taking legal proceedings. That s 256 provides a "right" or "entitlement" was accepted by the respondent before this Court in Human Rights and Equal Opportunity Commission v Secretary, Department of Immigration (1996) 67 FCR 83 at 95 and by this Court in the same decision at 97, and before the Full Bench in Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, per Carr J at 601 – 602 and 606 – 607. Such a right may be characterised as a "private" right accruing to a person such as the applicant, who satisfies the pre-condition of having requested access to such facilities. This gives standing to the applicant to seek injunctive relief and mandamus. q The common law right of a detained person to have access to his or her legal representative is represented by the decision of the UK Court of Appeal in R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198 at 210: "Equally clearly established is the important principle that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves." (Emphasis added) q The right of a detained person to have access to his or her lawyer is also protected by international human rights law. It is axiomatic that a person's rights under domestic law should be construed in a manner that, so far as the language permits, is in conformity with Australia's international legal obligations: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, per Mason CJ and Deane J at 287 – 288. This is particularly the case where there is no clear legislative intent to the contrary: cf. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, per Brennan, Deane and Gaudron JJ at 38. q The source of international law on the right of detainees to have unimpeded access to their lawyers is Art 10(1) of the International Covenant on Civil and Political Rights ("ICCPR"), which has been ratified by Australia. Art 10(1) states: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." q As was recognised by this Court in Fang's Case, at 602 – 604, Art 10(1) of the ICCPR has been interpreted by the United Nations treaty bodies so as to import the obligations of a State to accord the minimum standards of humane treatment in the conditions of detention, as found in other international instruments including the Standard Minimum Rules for the Treatment of Prisoners ("the Standard Minimum Rules"), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ("the Body of Principles"). Rule 94 of the Standard Minimum Rules states that persons in administrative detention shall be accorded treatment "not less favourable than that of untried prisoners" and, in so far as untried prisoners are concerned, Rule 93 states that: "For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions." q The Body of Principles (adopted by UN General Assembly Resolution 43/173) applies to all persons under any form of detention or imprisonment, including those held in administrative detention. It relevantly provides: Principle 17 1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after his arrest and shall be provided with reasonable facilities for exercising it. Principle 18 1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel. 2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. 3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order." q It is apparent that s 256 derives from the above Principles; indeed it largely reproduces Principle 17(1). As such, it is also legitimate for this Court, in construing the provision, to have regard to the source of the provision in giving effect to the phrase as would be done in the international context: Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 93 – 94, 222 – 223; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 – 350, 356 – 357; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 – 231, 239 – 241, 294 – 295; Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 333. q In the present case, the removal of the applicant from Sydney to Woomera will impede access to his solicitor in such a way as to inhibit his right to reasonable facilities for obtaining legal advice or taking legal proceedings. It will prevent his solicitor from visiting him, and it will make it almost impossible for him to properly instruct his solicitor and to receive advice and assistance in the preparation of his forthcoming applications. q The Minister has failed to provide any good reason why the applicant should be removed from Sydney to Woomera, apart from a generalised assertion of the need to maintain flexibility and contingency capacity. It has been recognised by this Court that each case under s 256 must be looked at in the light of their own facts and circumstances: Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27, per Sheppard J at 33, and NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 997 at [26]. (Both cases are considered below.) The fact that other detainees may seek to make similar applications is not relevant to the particular case: Le at 33. In the present case, the particular circumstances compel a finding that the applicant not be removed from Sydney pending the determination of his application for review of the decision to cancel his visa by the RRT. Conclusions on the application 13 As was submitted for the Minister, it is necessary to place s 256 of the Act in its general legislative context, as follows: 14 "Immigration detention" under the Act is provided for by s 189(1), which imposes an unqualified obligation upon an "officer" to detain an unlawful non-citizen within Australia: "If an officer knows or reasonably suspects that a person in the migration zone ... is an unlawful non-citizen, the officer must detain the person." (Emphasis added) 15 This provision both requires than an officer detain an unlawful non-citizen, and authorises that detention, as a "specific control mechanism" (Ruddock v Vadarlis (2001) 183 ALR 1 at 54 per French J). The term "detain" is defined in s 5 to mean: "(a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so." 16 Consistently with this, in its ordinary meaning, "detain" means "to keep under restraint or in custody". "Restrain" in turn, means to "keep in check or under control ... to deprive of liberty, as a person" (The Macquarie Dictionary (3rd ed)). 17 An "officer" is defined in s 5 to mean persons holding the offices designated in s 5 (including officers of the Department and police officers), and: "(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of the Act, including a person who becomes a member of the class after the authorisation is given." 18 Section 196 is also, material, providing: "(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa." (Emphasis added) 19 The circumstances in which a person is to be released from "immigration detention" are defined exhaustively by ss 191 and 196(1) and (2). "Immigration detention" is defined in s 5 to mean: "(a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee – another person directed by the Secretary to accompany and restrain the detainee; or (c) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented under section 249, from leaving a vessel – on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b)." 20 It is not suggested that s 191 or s 196(1) or (2) apply here. 21 In short, as is common ground, this statutory regime shows that immigration detention under the Act involves both the deprivation of liberty of the person and the assumption of control over the person, particularly in respect of residency (cf. Howard v Jarvis (1958) 98 CLR 177 at 183 per Dixon CJ, Fullagar and Taylor JJ). 22 The statutory scheme effected by s 189 and s 196 has thus left it to the Minister and officers to determine the places at which, the persons by whom, and the manner in which, a person in immigration detention is to be detained; and this is apparent, in particular, from the definition of immigration detention (s 5). This is also common ground. 23 On behalf of the Minister it is submitted that, properly construed, s 256 does not govern questions of transfer between detention facilities. Rather, it is directed to "the person responsible for his or her immigration detention", it is triggered by a specific request, and it is confined to the particular matters mentioned; and such a provision is not to be read as conferring an obligation to detain the person in the facility which is most convenient to the person and his or her legal adviser. 24 In my opinion, there is considerable force in the Minister's submission so far as concerns any question of transfer. Nonetheless, in my view, the right and duty springing from the provisions of s 256 have their own, independent, existence; put differently, the obligation cast upon the Crown by s 256 has a free-standing operation, wherever the detainee is held. 25 On behalf of the applicant, reliance is placed upon the decision of Sheppard J in Le v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 27. The facts were that two children who had arrived in Australia from China were in custody at the Port Hedland Detention Centre. They commenced proceedings in this Court's ACT District Registry for review of a decision to refuse to accord them refugee status. In an interlocutory application, they sought orders that the Minister bring, or cause to be brought, each of them to a suitable place in Sydney and provide reasonable facilities so that they might meet with and instruct legal advisers, prepare affidavits and give oral evidence in Court. Sheppard J held that the Court had power to so direct, derived from either O 10 of the Federal Court Rules or, alternatively, from s 256 of the Act. His Honour further held that, in the circumstances of that case, it was not sufficient to provide facilities for meetings with legal advisers in Port Hedland. Sheppard J said (at 32) that, taking into account the availability to the applicants of pro bono legal representation, their readiness to proceed forthwith, the existence of a suitable low detention facility and the convenience of the court, the best way of managing the case was to hear it in Sydney. 26 In so concluding, Sheppard J said (at 31): "At this stage it is not possible to tell whether the applicants, or some of them, will give oral evidence. Desirably the usual practice of the Court will be followed. Evidence which they are to give will be made the subject of affidavits. If it is desired to cross-examine one or more of them, the witnesses will have to be present. I do not know whether video facilities are available in Port Hedland as they are in the main centres in Australia. But in a case where people will, perforce, need to give evidence through an interpreter, I do not regard it as likely to be satisfactory for their evidence to be taken by video let alone the telephone. These various considerations lead me to believe that the case cannot be tried conveniently in Port Hedland and must be tried in one of the more usual sitting places which the Court has. The nearest such places to Port Hedland are Darwin, where the Court has no resident judge, and Perth. Perth is some 1,600 km from Port Hedland. It would seem to be unwise or the case to proceed without the applicants being available. Inany litigation problems may arise which unforeseeably bring about a situation in which a witness not thought to have been a necessary witness or not thought to have been one which would need to be cross-examined, is, after all, required to go into the witness box. In those circumstances the case cannot proceed satisfactorily unless the applicants are available at a place which is at least proximate to the court in which the case is heard." 27 In my opinion, Sheppard J was not attempting to lay down any rule of general application in this area. His Honour made this clear when he added these observations (at 33): "No solution to the problem will be completely satisfactory to all parties. I have found the matter a difficult one. I am satisfied, however, that the course I have decided on is the most practical one. It should lead to a comparatively early resolution of the litigation. The only cost to the Minister and his department will be the transport of the applicants to Sydney and back to Port Hedland, if that should be appropriate. The applicants will be able to be adequately represented for no charge to them and the Court will be able to manage the case more effectively and more efficiently than it could if the case were to be heard in Port Hedland." 28 In other words, his Honour approached the question as a case management issue. As such, practical considerations may be expected to receive such weight as the particular circumstances indicated. 29 Sheppard J emphasised this by adding these observations (at 33): "I can well understand that the Minister would have a concern about the course I have decided upon because of an understandable anxiety that others in Port Hedland may make similar applications. I cannot assert that this will not happen. But each case must be looked at in the light of its own facts and circumstances." 30 A different outcome in a case management context is illustrated in the recent decision of Jacobson J in NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 997 where, in a similar context, O 10 was also sought to be invoked, but the interlocutory application for transfer from Port Hedland to Villawood Detention Centre was refused, distinguishing Le on the ground that videoconferencing could be used. 31 Jacobson J said (at [37] – [40]): "It seems to me that videoconferencing will assist in, rather than impede, the speedy hearing of the proceedings. Indeed, quite apart from the other reasons which I have given for the exercise of my discretion against the applicant, in my view, it would have been open to me to dismiss the transfer application upon the ground that Mr Jackson did not take up the opportunity to have a videoconference. Without at least attempting such a conference he was not in a position to assist the Court in resolving the question of whether videoconferencing was a satisfactory means of communication with his client. In my view, there is only one possible impediment to the use of videoconferencing between Mr Jackson and his client. Mr Bedrossian did not raise this issue but it seems to me to be important that I refer to it in my judgment. Trials are held in public but conferences between a solicitor and his or her client are to be kept confidential. Although the Minister has offered to provide the video facilities free of charge, no mention was made of the need for confidentiality. I do not know whether the Minister is able to make available a room to the applicant where he can have a videoconference in private. I assume that this can be arranged. I will reserve liberty to apply on 72 hours notice if any question arises. It is unnecessary for me to determine whether Mr Jackson and counsel are retained in an honorary capacity in the same way as in Le. Even if their retainers are analogous to honorary representation, I would not depart from the view I have reached as to the suitability of videoconferencing." 32 The present case arises in a context different from both these O 10 cases. Here, in my view, the ultimate question is whether the Court should, indirectly, enforce the duty imposed upon the Minister under s 256 by enjoining the proposed transfer. 33 A similar question has arisen in England in R v Secretary of State for the Home Dept; Ex parte McAvoy (1984) 1 WLR 1408 (Webster J), where an application was made for judicial review of a decision to remove the applicant from Brixton prison to Winchester prison. The applicant sought a mandatory injunction ordering the Secretary of State to return him to Brixton prison or to another London prison, or alternatively, a declaration that he was entitled to return to Brixton prison on the ground that the Secretary of State, by having transferred him to Winchester prison, was failing to allow his legal advisers a proper opportunity to prepare his case for trial. 34 The relevant background to the application was that the applicant had been committed to stand trial on a charge of robbery of £26 million worth of gold bullion. The trial was expected to last for between six to eight weeks and it was submitted that, to prepare for the trial, numerous and lengthy conferences with legal advisers would be necessary. However, although legal visiting rooms were provided at Winchester, the facilities at Brixton were superior. Moreover, because of extra travelling time, Winchester would be a more expensive location for the legal advisers. 35 The Crown evidence, on the other hand, was that, for operational and security reasons, it was considered essential to move the applicant to Winchester. 36 The applicant, relying upon his general right, as an unconvicted prisoner, to a fair trial of the criminal proceedings against him, invoked rule 37(1) of the Prison Rules 1964 (UK) (a provision similar to s 256) as follows: "37(1)The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer." 37 As Webster J noted (at 1414), this provision reflects rights of the kind enshrined in the Human Rights treaties. 38 After observing (at 1414) that the reference in Rule 37(1) to the affording of reasonable facilities "must be read as a reference to the affording of reasonable facilities in all the circumstances", Webster J turned to consider those circumstances, particularly those explained in the affidavit evidence of Mr Goddard, a Home Office official. 39 Webster J said (at 1416): "... Mr Goddard ... confirm[s] that in exercising his continuing discretion under section 12 of the Prison Act 1952 [conferring power upon the Secretary of State to remove a prisoner to another prison], the Secretary ... has had and continues to have regard to… [inter alia] …his need to have adequate facilities for the preparation of his defence ... ... [and] as an exception in this case, consideration is being given to making available a larger visiting room and for the provision of facilities for visiting outside normal hours." 40 Having noted that Crown counsel, after an adjournment, had indicated that there was at Winchester a much larger room used mainly by the board of visitors, which, by arrangement, could be made available, Webster J said (at 1416 – 1417) that, in all of these circumstances, he did not propose to make an order, and added (at 1417 – 1418): "... I am satisfied that the Secretary of State has taken into account the full effect of that transfer and I am satisfied that consideration is being given to the making of reasonable arrangements to enable the applicant to consult with his lawyers as may be necessary at Winchester. I am satisfied that the Secretary of State has not misdirected himself in law by failing to take into account the applicant's rights to visits by his family and lawyers. I also take the view that, where the Secretary of State has security reasons for transferring a prisoner from one prison to another, the prisoner's right to be visited by his family or friends will rarely, if ever, be a factor of significance to be taken into account in making the decision whether that transfer should take place or not. In most cases, in my view, the same considerations apply to a prisoner's right to be visited by his legal advisers. This case was quite exceptional, as I have said, in that leading counsel had been instructed and had advised the applicant before he was transferred. As a result of the transfer, because of the distance involved in travelling from London to Winchester, and because of the visiting hours at Winchester on the one hand and leading counsel's existing commitments on the other, he would be unable to advise and take instructions from his client until about two weeks before the trial in a case in which a number of consultations will clearly be necessary before the trial begins. In those circumstances, the alternatives would appear to be either that leading counsel presently instructed ceases to act and that a new leading counsel is instructed, or that the visiting arrangements at Winchester are modified, or that the applicant, as he requests, is moved back to London. In the circumstances of this case, it does seem to be arguable that to compel the applicant to instruct a new leading counsel would deprive him, if not of a fair trial, certainly of a fair trial as he would regard it. In the very last resort, that result might be necessary if security reasons require it. In my view, it is to be hoped that suitable arrangements will be made which will not lead to that result." 41 McAvoy was cited by Hodgson J in R v Secretary of State for the Home Dept; Ex parte Herbage [1987] 1 QB 872 at 880 for the proposition that, on an application for judicial review, failure by the Crown officials to have regard to the Prison Rules 1964 can be taken into account. 42 In R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, the Divisional Court (Ralph Gibson LJ, Fox and Parker JJ concurring) (at 85) cited McAvoy with approval, observing that, although Webster J had decided that the Secretary of State had a very wide discretion to transfer prisoners, he had to have regard to the rights of an unconvicted prisoner, reflected in the Prison Rules, for his legal advisers to be afforded facilities for interviewing him; yet the Court held that there had been no misdirection on the facts. 43 In addressing the present question it is first necessary to analyse the meaning, and relevant operation, of s 256 of the Act. 44 The explanation given of this provision (as originally enacted) in the Explanatory Memorandum was: "Clause 41.It is considered desirable that there should be a specific direction of this kind to officers, to place beyond any possible doubt the necessity for arrested persons to be given facilities to obtain any legal redress they believe they may be entitled to." 45 A similar sentiment was expressed by the Minister in his Second Reading Speech (Hansard, House of Representatives, 1 May 1958, at 1398): "Yet another safeguard is provided by clause 41 of the bill. It may be that a person arrested as a deportee will not dispute the question of identity, but will contest the validity of the deportation order. In these circumstances legal questions are involved, and should be decided by a superior court. Such a hearing can, of course, already be secured by writ of habeas corpus or by injunction. The bill, however, goes further. It ensures that persons arrested must be given all reasonable facilities for obtaining legal advice and taking legal proceedings." 46 In other words, the legislative intention is consistent with the human rights notions referred to in the applicant's argument. 47 The key element in the provisions of s 256, in my opinion, is the concept of "reasonable facilities". It appears that these words were intended to have their ordinary meaning. The primary dictionary definition of "facility" is "something that makes possible the easier performance of any action". 48 The appropriate dictionary definition of "reasonable" appears to be "not excessive", as in "reasonable terms" (Macquarie Dictionary 3rd ed); or "within the limits of reason; not greatly more or less than might be thought likely or appropriate" (The New Shorter Oxford English Dictionary). As Gaudron J observed in an analogous context (Slivak v Lurgi (Australia) Pty Ltd (2001) 177 ALR 585 (at [53])) these are ordinary words bearing their ordinary meaning, and the question "requires no more than a making of a value judgment in the light of all the facts". 49 Thus, so far as concerns the application of s 256 here, the real question, as the Minister has submitted is essentially one of fact, an issue to be resolved primarily upon the evidence adduced for the Minister from Ms McPaul, as to the facilities proposed to be made available, to which reference will be made shortly. 50 Before going to that evidence, it should, however, be noted that in the course of this hearing, the Minister offered this undertaking to the Court: that the Minister will not transfer the applicant to the Woomera Detention Centre before the MRT gives its decision in his matter. As has been said, this decision is expected soon. 51 As indicated, the Minister relies upon the evidence of Christine Ruth McPaul, Acting Assistant Secretary, Unauthorised Arrivals and Detention Services Branch of the Department. In her affidavit sworn 9 December 2002, Mrs McPaul gave the following evidence with respect to the facilities provided at detention centres: · Detainees are permitted to have unrestricted access to facilities in order to communicate with their legal representatives irrespective of their location. In relation to the Woomera Detention Centre, video and telephone conference facilities are available to detainees. The Court has used such facilities in relation to hearings involving detainees from that detention centre. The detainees at Woomera also have access to fax machines. Detainees may also receive personal visits from their legal representatives. · Detainees at Woomera can receive incoming telephone calls through a number of mobile phones within each of the compounds. Detainees can also access the pay telephone system and access telephones which are used by Australasian Correctional Management ("ACM") and the Department. If a legal representative wishes to speak to a detainee, an appointment is made to speak to that person at a pre-arranged time using the telephone conferencing facility. When this occurs, the legal representative organises for an interpreter if required. · There are no costs levied by the Department on a detainee or their legal representatives for using the conferencing facilities. Faxes are usually sent free of charge either by the Department or through the ACM fax machine. The pay telephones are accessed by the detainees by the purchase of phone cards through the property office at Woomera, or received by them through the mail. · Any hearing or conference which is conducted at Woomera is conducted in a closed room. Neither ACM nor Departmental officers are present within the room while these are being conducted. An ACM officer normally stays outside within the vicinity of the room for security reasons. · If a fax is received for a detainee at Woomera, the fax is immediately placed in a sealed envelope and given to the detainee. Other than reading the fax for details of the addressee, the fax is not otherwise read. Any letters which are received at Woomera addressed to a detainee are given to that person without being opened. · There are currently three Farsi interpreters on site at Woomera to assist detainees. Telephone Interpreter Services (TIS) interpreters are usually used by detainees' legal representatives for telephone conferences with their clients. These interpreters join in a three-way conversation between the legal representative and the detainee. · The video conferencing facility at Woomera was inspected by the Registrar of the South Australian Registry of the Court in August 2002 in order to ensure the suitability of the arrangements in place for the conduct of court proceedings. 52 As has been noted, on behalf of the applicant, it is said, in essence, that the present case is special because of the complexity of the issues likely to arise in his challenge to the cancellation of his visa. 53 In my opinion, whilst this contention appears to have some force, it is impossible for the Court to form a considered view of the degree of that complexity without inviting the Court to delve into the professionally privileged areas of the preparation of collateral litigation. In any event, the "reasonableness", or otherwise, of the facilities to be provided for the purposes specified in s 256 is, as has been said, a question to be determined by the making of a value judgment in the light of all the facts at the material time. The applicant's case is, as the Minister submitted, one of the apprehended breach at Woomera of the guarantee provided by s 256. For the reasons given by Jacobson J, no breach has, in my view, yet occurred, given the evidence of Ms McPaul, which I accept as evidence of an intention to provide "reasonable facilities" within s 256. To my mind, the claim of such an apprehended breach cannot derogate from the Minister's transfer power if that power is otherwise regularly exercised, and no such other challenge is propounded here. At the same time, as has been said, s 256 is a free-standing guarantee, which must be given its own effect, wherever the detainee is held. 54 In the result, whilst I am of the view that the challenge to the proposed transfer to Woomera cannot be maintained, the operation of s 256 must be allowed its own free-standing operation at Woomera. This can be appropriately achieved by the Minister giving a suitable undertaking, or, if necessary, by a declaratory order. 55 Given this outcome, there should be no order for costs. Orders 56 Accordingly, I make the following orders: 1. Unless within seven days the Minister files and serves an undertaking to the Court that reasonable facilities within the meaning of s 256 of the Act will be provided for the applicant at Woomera – Declare that the Minister is bound to provide such facilities. 2. Application otherwise dismissed. 3. Make no order as to costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 18 December 2002 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Craddock Murray Neumann Counsel for the Respondent: Mr N Williams SC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 December 2002 Date of Judgment: 18 December 2002