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FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs & Ors

v

Eric Vadarlis

V1007/01

Minister for Immigration and Multicultural Affairs & Ors

v

Victorian Council for Civil Liberties Incorporated & Ors

V 1008 of 2001

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SUMMARY

1. On 11 September 2001, Justice North made orders directing the Commonwealth to

release people who had been rescued from a sinking vessel by the Norwegian ship, the

MV Tampa, on 26 August. On 3 September those people were transferred to HMAS

Manoora, in Australian territorial waters off Christmas Island. His Honour’s orders

directed that the persons be brought ashore to a place on the Australian mainland. The

circumstances surrounding the rescue by the MV Tampa, its presence in Australian

territorial waters, and the refusal by the Australian Government to allow it to land the

rescuees are well known. They will be set out in detail in the Court’s reasons for

judgment.

2. Justice North's order was by way of habeas corpus and was granted on the basis that the

Commonwealth had detained without lawful authority the people rescued by MV Tampa.

The orders were made on applications by the Victorian Council of Civil Liberties Inc and

by a Victorian solicitor, Mr Eric Vadarlis.

3. The Commonwealth and the Ministers concerned have appealed against his Honour's

decisions. An application for an urgent hearing of the appeals was granted on Wednesday

12 September and the Full Court sat until late on the following day to hear the

submissions of the parties.

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4. Because of the undoubted urgency of these cases, the need for the legal questions to be

resolved and for the parties to know what their positions are with the least possible delay,

the members of the Court, having reached a clear view about the outcome, have decided

to announce the decision of the Court today. They have decided to do so, and to make

orders on the appeals, in advance of the publication of their reasons for judgment. Those

reasons are lengthy and will be published tomorrow. Another factor that has persuaded

the Court to take this course is that information provided to it during the hearing of the

appeals suggested that HMAS Manoora is likely to arrive at Nauru today, and she may

already have done so.

5. By a majority, comprising Justices Beaumont and French, the Court has determined that

the appeals should be allowed and has set aside the decisions made by Justice North. The

majority judges have concluded that the Commonwealth was acting within its executive

power under s 61 of the Constitution in the steps it took to prevent the landing of the

rescuees. The closure of the Christmas Island port was done under a statutory authority

which was not challenged. The majority has also concluded that the rescuees were not

detained by the Commonwealth or their freedom restricted by anything that the

Commonwealth did.

6. The Chief Justice has dissented. He has taken the view that whilst the power to expel

people entering Australia illegally is undoubted, it is a power that derives only from laws

made by the Parliament and not from powers otherwise exercisable by the executive

government. He has taken the view that since the powers provided in the Migration Act

1958 have not been relied upon, the Commonwealth government had no power to detain

those rescued from the Tampa. He considers that on the facts of the case there was a

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detention by the Commonwealth and that since it was not justified by the powers

conferred by the Parliament under the Migration Act it was not justified by law. He would

therefore dismiss the appeals.

7. The appeals will therefore be allowed and the orders made by Justice North set aside. The

parties will have liberty to make submissions on the question of costs.

8. The judges wish to make it plain that the Court's decision is not, and cannot be,

concerned with either the policy or the merits of the Commonwealth's actions. That is a

debate for other forums. The questions before the Court are questions of law.

9. This summary is intended to assist in an understanding of the outcome of these appeals.

Such summaries are commonly prepared by the Court in cases of public interest, but they

are not a substitute for the judges’ reasons which remain the only authoritative statement

of the Court.

10. This summary will be available on the internet at www.fedcourt.gov.au immediately, as

will the reasons for judgment when they are published.

http://www.fedcourt.gov.au/

FEDERAL COURT OF AUSTRALIA

Ruddock v Vadarlis [2001] FCA 1329

CONSTITUTIONAL LAW – executive power of the Commonwealth – common lawprerogative of the Crown – relationship – abrogation by statute – principles ofconstruction – no presumption in favour of abrogation – national sovereignty –exclusion of aliens – whether element of executive power – whether abrogated byMigration Act 1958 (Cth) – exclusion of aliens from Australian territory – whether validexercise of executive power – incidents of power to exclude – restraints upon liberty –whether unlawful.

ADMINISTRATIVE LAW – Habeas Corpus – jurisdiction – nature of remedy –whether available for partial restraint – non-citizens in foreign vessel – no right to enterAustralia – whether barring of entry imposes restraint – whether incidental steps to barentry and remove amount to restraint on liberty – extraneous factors – refusal of ship’scaptain to depart – whether resulting restraints attributable to Commonwealth – norelevant restraint – habeas corpus does not lie

Migration Act 1958 (Cth) ss 4, 5, 6, 7, 14, 47, 45, 189, 194, 196, 198, 199, 200, 228(A), 229,230, 230(1A), 232, 232A, 233, 245A, 245B, 245C, 245D, 245F, 245H, 249(1AA), 250, 251,252, 256Federal Court of Australia Act 1976 (Cth) s 23Judiciary Act 1901 (Cth) s 39BCommonwealth of Australia Constitution Act 1901 s 4, 61Acts Interpretation Act 1901 (Cth) s 15BShipping and Pilotage Act 1967 (WA) s 5Immigration Act 1901-1930 (Cth)Public Service Act 1916 (Cth)Extradition (Foreign States) Act 1966 (Cth)Extradition Act 1988 (Cth)Border Protection Legislation Amendment Act 1999 (Cth)

Zines, The High Court and the Constitution, 4th ed (1997) at 251Steven and Haynes, Forsyth’s Cases and Opinions on Constitutional Law (1869) at 181Clark and McCoy, The Most Fundamental Legal Right – Habeas Corpus in theCommonwealth, Clarendon Press, Oxford (2000) 183 et ffD K Singh ‘What cannot be done directly cannot be done indirectly, Part 1’, (1959) 32Australian Law Journal 374; 33 Australian Law Journal 3HV Evatt, The Royal Prerogative, LBC (1987) at 99G Winterton, Parliament, the Executive and the Governor General, Melbourne UniversityPress (1983) at 118-9, 120de Smith, Constitutional and Administrative Law, 3rd ed (1977) at 11Markesinis, ‘The Royal Prerogative Revisited’ [1973] Cambridge Law Journal 287 at 299-305WF Craies, ‘The Right of Aliens to Enter British Territory’ (1890) 6 Law Quarterly Review27 at 27-9, 37.TW Haycraft, ‘Alien Legislation and the Prerogative of the Crown’ [1897] Law Quarterly

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Review 165Sir William Holdsworth, A History of English Law, Vol X, Sweet and Maxwell (1938) at396-7H Street and R Brazier, Constitutional and Administrative Law, 5th ed (1985) at 149-150PH Lane, Lane’s Commentary on the Australian Constitution, 2nd ed (1997) at 439J Goldring, ‘The Impact of Statutes on the Royal Prerogative; Australasian Attitudes as to theRule in Attorney-General v De Keyser’s Royal Hotel Ltd (1974) 48 Australian Law Journal434

Sir James Mackintosh, House of Commons 1816, Debates (Hansard) 10 May 1816, 446-470The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, SecondReading Speech, Australia, house of Representatives 1999, Debates (Hansard), 22 September1999, 10147

Ah Yin v Christie (1907) 4 CLR 1428 followedAmuur v France (1992) 22 EHRR 533 citedAttorney-General (Canada) v Cain [1906] AC 542 followedAttorney-General v De Keyser’s Royal Hotel Limited [1920] AC 508 citedAustralian Communist Party v Commonwealth (1951) 83 CLR 1 referred toAustralian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493referred toBalmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 referred toBank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349 followedBarton v Commonwealth (1974) 131 CLR 477 citedBateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund PtyLtd (1998) 194 CLR 247 referred toBird v Jones [1845] 7 QB 742 referred toBooth v Williams (1909) 9 SR (NSW) 421 referred toBradley v Commonwealth (1973) 128 CLR 557 citedBritish Broadcasting Corporation v Jones [1965] Ch 32 citedBrown v Lizars (1905) 2 CLR 837 citedBurma Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 citedBurns v Ransley (1949) 79 CLR 101 referred toBurns v Johnston [1916] 2 KB 444 referred toBurton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953]StRQd 26 followedChin Yow v United States 208 US 8 (1907) referred toChu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176CLR 1 followedChung Teeong Toy v Musgrove (1888) 14 VLR 349 citedClarkson v R [1986] VR 464 referred toCommonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421referred toDavis v Commonwealth (1988) 166 CLR 79 citedDonegani v Donegani III Knapp 63 referred toEattes v Dawson (1990) 21 FCR 166 citedEx parte Lo Pak (1888) 9 NSWR 221 citedEx parte Leong Kum (1888) 9 NSWR 250 citedEx parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 cited

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Farey v Burvett (1916) 21 CLR 433 referred toHerd v Weardale Steel, Cole and Coke Company Ltd [1915] AC 67 referred toHunkin v Siebert (1934) 51 CLR 538 citedIn Re Adam [1837] 1 Moo PC; 12 ER 889 citedJohnstone v Pedlar [1921] 2 AC 262 followedJones v Cunningham 371 US 236 (1963) referred toKioa v West (1985) 159 CLR 550 referred toKoon Wing Lau v Calwell (1949) 80 CLR 533 followedLaker Airways Ltd v Department of Trade [1977] 1 QB 643 cited Ling v Commonwealth (1994) 51 FCR 88 referred toLiversidge v Anderson [1942] AC 206 appliedMayer v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312 citedMcGuiness v Attorney-General (Vic) (1940) 83 CLR 73 citedM’Kendrick v Sinclair 1972 SC (HL) 25 referred toMinister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followedMinister for Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254 referred toMinister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred toMusgrove v Chung Teeong Toy [1891] AC 272 followed Ng Kwan v Commonwealth (1949) 80 CLR 535 citedOates v Attorney-General (Cth) (2001) 181 ALR 559 citedPhong v Attorney-General for the Commonwealth [2001] FCA 1241 followedR v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 referred toR v Bottrill; Ex parte Kuechenmeister [1947] 1 KB 41 followedR v Carter; Ex parte Kisch (1934) 52 CLR 221 followedR v Home Secretary; Ex parte Khawaja [1984] AC 74 citedR v Langdon; Ex parte Langdon (1953) 88 CLR 158 referred toR v Secretary of State for Home Affairs; Ex parte O’Brien [1923] 2 KB 361 citedRe Bolton; Ex Parte Beane (1987) 162 CLR 514 citedRe Officer in Charge of Cells ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478followedRe Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 citedRe Esperalta [1987] VR 236 citedRe Gregory (1899) 25 VLR 539 citedRobtelmes v Brenan (1906) 4 CLR 395 citedShah and Akbarali v Brent London Borough Council [1983] 2 AC 309 followedSyed Mahamad Yusuf-ud-din v Secretary of State for India (1903) TLR 496 referred toSomerset v Stewart (1772) 98 ER 499 referred toTruth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd(2000) 200 CLR 591 referred toVictoria v Commonwealth and Hayden (1975) 134 CLR 338 citedWalker v R [1994] 2 AC 36 citedWaters v Commonwealth (1951) 82 CLR 188 referred toWaterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434followed

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THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATIONAND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIAAND WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS ANDEQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONALLIMITED

V 1007 OF 21001

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATIONAND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS,ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER OFDEFENCE AND THE COMMONWEALTH OF AUSTRALIA V VICTORIANCOUNCIL FOR CIVIL LIBERTIES INC, HUMAN RIGHTS AND EQUALOPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED

V 1008 OF 2001

BLACK CJ, BEAUMONT & FRENCH JJ18 SEPTEMBER 2001 (ORDERS MADE 17 SEPTEMBER 2001)MELBOURNE

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1007 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE HONOURABLE PHLIP RUDDOCK MP, MINISTERFOR IMMIGRATION AND MULTICULTURAL AFFAIRSFIRST APPELLANT

THE COMMONWEALTH OF AUSTRALIASECOND APPELLANT

WILLIAM JOHN FARMERTHIRD APPELLANT

AND: ERIC VADARLISFIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITYCOMMISSIONSECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITEDTHIRD RESPONDENT





THE HONOURABLE DARYL WILLIAMSATTORNEY-GENERALSECOND APPELLANT

THE HONOURABLE PETER REITHMINISTER OF DEFENCETHIRD APPELLANT

THE COMMONWEALTH OF AUSTRALIAFOURTH APPELLANT

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AND: VICTORIAN COUNCIL FOR CIVIL LIBERTIES INCFIRST RESPONDENT



JUDGES: BLACK CJ, BEAUMONT & FRENCH JJ

DATE OF ORDER: 17 SEPTEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The cross appeal is dismissed.

3. The orders made by North J on 11 September 2001 are set aside and in lieu thereof the

application is dismissed.

4. The question of the costs of the application and of the appeal be the subject of written

submissions within fourteen days.

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

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DATE: 18 SEPTEMBER 2001 (ORDERS MADE 17 SEPTEMBER2001)

PLACE: MELBOURNE

BLACK CJ:

INTRODUCTION

1 These are appeals against orders made by North J requiring the Commonwealth and

the other appellants to release the persons rescued at sea who were brought on board M V

Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or

about 3 September 2001. His Honour ordered that the appellants bring them ashore on the

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mainland of Australia. Provision was made for the stay of the operation of the orders until

the determination of any appeal to the Full Court of this Court. The orders did not apply in

respect of any of the persons rescued who indicated to the appellants that they did not wish to

be released and brought ashore to a place on the mainland of Australia.

2 The circumstances giving rise to these proceedings, the relevant facts, and the issues

before North J and before us on these appeals, are set out in detail in the reasons for judgment

of French J. I have had the advantage of reading those reasons in draft form and I adopt what

his Honour has said about those matters.

3 I should begin by referring to the scope of the issues before this Court on appeal. The

primary argument advanced on behalf of the appellants by the Solicitor-General for the

Commonwealth was that North J erred in holding that the executive power of the

Commonwealth did not authorise and support the expulsion from Australia of the people

rescued by the M V Tampa and their detention for that purpose. A second argument was that

the people rescued by the M V Tampa were not relevantly detained.

WAS THERE LAWFUL AUTHORITY FOR THE EXECUTIVE ACTION TAKEN?

4 It cannot be doubted that a nation state has a sovereign power to exclude illegally

entering aliens from its borders, and to legislate for this purpose: Robtelmes v Brennan (1906)

4 CLR 395 (“Robtelmes”); Attorney-General for Canada v Cain (1906) AC 547 (“Cain’s

Case”). It is said that, in this case, the people rescued by the M V Tampa may be lawfully

prevented from entering Australia in the exercise of this sovereign power, but not in exercise

of power derived from legislation.

5 There is also no doubt that, as a general principle of law, there is no executive

authority, apart from that conferred by statute, to subject anyone in Australia, citizen or non-

citizen, to detention. In LimChu Keung Lim v Minister for Immigration, Local Government

and Ethnic Affairs (1992) 176 CLR 1 (“Lim”), Brennan, Deane and Dawson JJ said (at 19):

“Since the common law knows neither lettre de cachet nor other executivewarrant authorizing arbitrary arrest or detention, any officer of theCommonwealth Executive who purports to authorize or enforce the detentionin custody of such an alien without judicial mandate will be acting lawfullyonly to the extent that his or her conduct is justified by valid statutory

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provision.” [citations omitted]

See also Mason CJ (at 13) and McHugh J (at 63) to the same effect.

6 As a general principle, the Executive cannot expel a person from Australia without

statutory authority, although whether that principle applies to non-resident unlawful non-

citizens is disputed here: Brown v Lizars (1905) 2 CLR 837 (“Brown”); Robtlemes; Re

Bolton; Ex Parte Beane (1987) 162 CLR 514 (“Bolton”) at 528. But the Solicitor-General

submitted that a non-statutory executive power to prevent unlawful non-citizens from

entering Australia carries with it necessary ancillary powers, which may include power to

detain and expel an unlawful non-citizen for the purposes of protecting Australia’s borders.

7 It may be accepted that ancillary powers of detention and expulsion must travel with a

power to exclude (see Cain’s Case at 546; Robtelmes per O’Connor J at 420). But on the

view I take, the undoubted power of the Executive to protect Australia’s borders against the

entry of unlawful non-citizens in times of peace derives only from statute.

SOURCES OF EXECUTIVE POWER

8 The Executive power of the Commonwealth is described in s 61 of the Constitution. It reads:

"The executive power of the Commonwealth is vested in the Queen and isexercisable by the Governor-General as the Queen's representative, andextends to the execution and maintenance of this Constitution, and of the lawsof the Commonwealth."

PREROGATIVE POWER

9 The Solicitor-General’s principal argument was that the appellants acted in exercise

of a prerogative power, which is embraced by s 61. It may be accepted that the power of the

Executive under s 61 includes powers accorded to the Crown at common law (Barton v The

Commonwealth of Australia (1974) 131 CLR 477 (“Barton”) at 498 per Mason J) and the

first question is, therefore, whether there is a prerogative power of the nature contended for

by the Solicitor-General.

10 The principal case relied on to demonstrate that the English Crown enjoys a

prerogative right to exclude aliens is Musgrove v Chung Teeong Toy [1891] AC 272

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(“Musgrove”). In that case, the Privy Council considered an appeal from a decision of the

Supreme Court of Victoria: Chung Teeong Toy v Musgrove (1888) 14 VLR 349 (“Toy”). Toy

came before all the available members of the Supreme Court (Mr Justice Webb being absent

on leave) on a reference of questions of law to the Full Court by Kerferd J. The applicant, a

Chinese immigrant who had travelled to Victoria on the SS Afghan, had been prevented from

landing by customs officers. He applied to the Supreme Court for a writ of habeas corpus in

response to which the customs officials asserted a prerogative of the Crown to exclude alien

friends. Only two members of the six judges who constituted the full bench of the Supreme

Court (Higinbotham CJ and Kerferd J) upheld the prerogative claim of the customs officers.

The other judges (Williams, Holroyd, A’Beckett, and Wrenfordsley JJ) rejected the claim of

prerogative power, and considered that habeas corpus should issue for the reason that the

colonial government did not have the requisite prerogative power. The decision thus turned

upon whether the colonial government enjoyed all the rights and privileges of the English

Crown and the majority held that it did not. One of the judges, however, expressed a view on

that larger subject. Holroyd J, after an historical analysis, observed that (at 425):

“On a question of this kind I attach comparatively little importance to whatwas done or said before the close of the sixteenth century. Up to that timeconstitutional usage was quite uncrystallized; in fact, it had hardly begun tosettle. Before then hundreds of precedents might be found, stretches of Royalauthority unchallenged at the time, for acts which were afterwards discoveredto be gross infringements of the privileges of Parliament or of the liberties ofthe people. But I am very much impressed with the fact that for nearly threecenturies no British Sovereign has attempted to exercise the right of expellingaliens or of preventing their intrusion in time of peace by virtue of hisprerogative; and no British Minister, not even the strongest advocate intheory for the plenitude of the Royal authority, has ventured in this matter toreduce his theory into practice.”

11 Williams (at 415) and A’Beckett JJ (at 434) were content to assume, without offering

any opinion, that the prerogative existed in England.

12 On appeal, the Privy Council held that the judges who comprised the majority of the

Victorian Supreme Court were wrong to allow the applicant access to the Court and expressly

stated that, having allowed the appeal on this narrow ground, it would not be appropriate to

express any opinion upon the question of what rights the colonial governments derived from

the English Crown, or what prerogative rights existed in the English Crown (at 283).

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13 Of the Privy Council’s decision in Musgrove, H V Evatt said:

“The Privy Council in the judgment in Musgrove v Toy refer to “the veryable judgment of Mr Justice Kerferd” and we are therefore justified inreferring to the remarks of that Judge as being fairly expressive of the opinionof the Privy Council …”

- The Royal Prerogative, LBC, 1987, at 99.

14 It seems to me however that the approval of Kerferd J’s reasons was not as broad as

HV Evatt concludes. The Privy Council said (at 283):

“their Lordships feel bound, upon the grounds which they have indicated, toabstain from pronouncing upon them on the present occasion. For thereasons which have been submitted, and which are indeed involved in thevery able judgment of Mr. Justice Kerferd … their Lordships will humblyrecommend her Majesty that the judgment … be reversed.” [emphasis added]

I read this as acknowledging that Kerferd J had given as one of his reasons for judgment the

reason that commended itself to their Lordships, but not as going any further. I should also

note that the limited ground on which the appeal was decided was acknowledged by

O’Connor J in Robtelmes at 417.

15 Musgrove has however also been cited (by way of obiter dicta) as authority for a

broad proposition that the Sovereign can exclude aliens: Johnstone v Pedlar [1921] 2 AC

262, 275 per Viscount Cave, 296 per Lord Philimore; R v Carter; Ex parte Kisch (1934) 52

CLR 221 (“Kisch”) at 223 per Evatt J. But Johnstone v Pedlar was a case that concerned an

Irish citizen who took part in illegal activity in Ireland in 1916, and sought the recovery of

money that had been seized from him at the time of his arrest. The case turned, as in

Musgrove, on the limited extent of an alien’s ability to maintain actions in Courts. It was not

a case concerning questions such as arise here, and it is by no means clear that the reference

to the Sovereign having a right to refuse an alien permission to enter the realm was directed

to the prerogative. Lord Philimore’s statement (at 296) that the King can refuse an alien

admission to the realm, a proposition that his Lordship said was established by Musgrove, is

not in my view supported by that case. In Kisch, a ship’s master purported to detain Mr

Kisch on board, on the ground that he believed him to be an illegal immigrant under the

Immigration Act 1901-30 (Cth). No question arose as to the power or prerogative of the

Crown to exclude an alien from the realm.

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16 In the same year as Toy was decided, the Supreme Court of New South Wales also

had to consider applications for writs of habeas corpus by Chinese citizens who were

prevented by police from disembarking from the SS Afghan: Ex parte Lo Pak (1888) 9

NSWLR 221 (“Lo Pak”); Ex parte Leong Kum (1888) 9 NSWLR 251 (“Leong Kum”). The

Crown’s argument that the New South Wales Government had a prerogative power to

prevent foreigners entering into the colony was rejected: Lo Pak at 237 per Darley CJ; at 244

per Windeyer J and at 248 per Foster J; Leong Kum at 255 – 256 per Darley CJ; 261-262 per

Windeyer J; 267 per Innes J. Although the cases were resolved on the basis that recognised a

distinction between the sovereign power of the English Crown, on the one hand, and the more

limited power of the colonial executive government on the other, two judges expressed an

opinion on the wider question. In Lo Pak the Chief Justice said (at 237):

“It may be that the Sovereign of England may have such a power according tothe principles laid down by writers on international law, but so far as I canunderstand, it has not been a power that has ever been exercised in England.On the contrary … it has been considered necessary to pass a statute for theexpress purpose of enabling that to be done.”

17 In Leong Kum, Innes J expressed a similar view (at 266 – 267):

“It seems, however, somewhat strange that the learned counsel, who hasargued the case with his accustomed zeal and ability, has not been able to putbefore the Court a single instance in which any such proclamation has issued,or any such order has been made in the case of a subject of a nation in amitywith England.”

18 In Robtelmes Griffiths CJ doubted "…whether the Executive authority of Australia, or

of any State, could deport an alien except under the conditions authorized by some Statute…"

but found it "not necessary to discuss that question now" (403). Barton J observed (at 414 –

5):

“Whether expulsion in Great Britain or in one of her self-governing Coloniesor States, requires statutory authority has, no doubt, been the subject of somehesitation on the part of eminent lawyers, but it is not necessary for us todecide that question. It does not arise. The question here is, first, whether thestatutory authority exists, and next, whether it has been properly exercised?Now, in the Encyclopœdia of the Laws of England, vol. 5, p. 268, there are afew lines that state that question very clearly:-

‘There are dicta of Blackstone (1 Com. 366) and Chitty(Pleas of Crown ed. 1820 p. 49) to the effect that theCrown by its prerogative, can expel even alien friends; butthere does not seem to have been any attempt since theRevolution to exercise such prerogative, and the extrusion

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of alien friends has since then always been effected bystatutory authority.’

The question to-day is one of statutory authority.”

19 The doubts about the continued existence of the prerogative power that would seem to

underlie the judicial observations to which I have referred raise the difficult question, on

which opinion is divided, whether a particular prerogative power may revive after it has

fallen into disuse. There is an argument that a long period of disuse extinguishes the

prerogative, because it would be illusory to say that Parliament has, in such circumstances,

made a choice to leave the prerogative in the Crown’s hands: Winterton, Parliament, the

Executive, and the Governor General, Melbourne University Press, 1983 at 118 - 119.

Another view is that the prerogative may be revived in “propitious” circumstances, but not

when it would be “grossly anomalous and anachronistic” (the phrase is taken from a

dissenting judgment in M’Kendrick v Sinclair 1972 SC (HL) 25, 60-61): de Smith,

Constitutional and Administrative Law, 3rd ed, 1977 at 11; Markesinis, “The Royal

Prerogative Revisited” [1973] Cambridge Law Journal 287, 299-305.

20 Some of these judicial and extra-judicial observations can be seen to support the

proposition that prerogative powers can be extinguished, not merely because legislation has

been passed, but because the prerogative powers have become incompatible with modern

constitutional jurisprudence. For example, considerations of this nature appear to emerge in

the passage from the judgment of Holroyd J in Toy at 425 (reproduced at para [10] above) in

which his Honour was “impressed” with the absence of any attempt to exercise the

prerogative in three centuries. Lord Reid’s speech in Burma Oil Company (Burma Trading)

Ltd v Lord Advocate [1965] AC 75 (at 100) illustrates (in relation to a different prerogative

power) the same approach:

“So … we must try to see what the position was after it became clear thatsovereignty resided in the King in Parliament. Any rights thereafter exercisedby the King (or the executive) alone must be regarded as a part of sovereigntywhich Parliament chose to leave in his hands.”

21 In 1890 W F Craies argued that the universal resort to legislation is proof of the

opinion that the prerogative to exclude aliens in times of peace “if not absolutely gone, was

deemed too weak and rusty for independent exercise”: “The Right of Aliens to Enter British

Territory” (1890) 6 Law Quarterly Review 27 at 37. A contrary case, based substantially

upon very early instances of the exercise of the prerogative, was put by T W Haycraft in

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“Alien Legislation and the Prerogative of the Crown” [1897] Law Quarterly Review 165

(which McGregor J found “more convincing” in his dissenting judgment in Minister for

Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254 at 261).

22 Some of the historical reasons why the prerogative power to exclude aliens came to be

viewed as at best doubtful are illuminated by the following passage where, having set out

early authorities in support of its existence, Professor Holdsworth said:

“Nevertheless the influences which were making for a denial of thisprerogative were beginning to be felt in the sixteenth century; and theygathered strength in the seventeenth, eighteenth, and early nineteenthcenturies …During the greater part of the eighteenth century, there appear tobe very few instances in which the Crown used its prerogative to exclude or toexpel aliens; and when, at the end of the century, it was thought desirable toexclude aliens, statutory powers were got … These statues were passed toexclude aliens who, it was though, might spread in England the ideas of theFrench Revolution. They were therefore opposed by the new Whigs whosympathized with these ideas. In 1816 Romilly, Mackintosh, and Denmandenied that the Crown had the wide prerogative attributed to it by Eldon andEllenborough; the same thesis was maintained in 1825 in a learned article inthe Edinburgh Review; and in 1890 it was supported by Mr. Craies.”[citations omitted]

- Sir William Holdsworth, A History of English Law, Vol X,Sweet and Maxwell, (1938) at 396-7.

23 In a footnote to this passage, Professor Holdsworth notes that the last occasion on

which it appears that a prerogative power to expel or exclude non-citizens was in 1771, when

the Crown directed that Jews “unable to pay the usual freight”, should, unless they had a

passport from an ambassador, be excluded from British territory.

24 The parliamentary reporters record Sir James Mackintosh’s speech, referred to by

Professor Holdsworth in the extract above, as follows (at 468):

“In the discussion of last session he had called for proofs of the existence ofthe prerogative said to be in the Crown, of sending out of the realm alienfriends in time of peace … Till an answer was made to such a demand, he hadsuspended his opinion. He only ventured then to doubt the existence of such aright. But from the proofs which had been not produced and the argumentswhich had been offered after a twelvemonth’s leisure for research, he nowthought himself justified in declaring, that such a prerogative was notwarranted by law.”

- House of Commons 1816, Debates (Hansard), 10 May 1816, 446 –

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470.

25 In his speech, Sir James Mackintosh said that the best authority in favour of the

prerogative was that found in Blackstone’s Commentaries, but that they were flawed by

reason of their failure to consider the distinction between sovereign power at international

law, and prerogative power (at 470):

“[Blackstone] quoted the assertion of Puffendorff, that all states must have apower to regulate the admission of strangers … Certainly, such rights exist inall states; but by whom to be exercised in each commonwealth was a questionto be answered by the laws of each country.”

26 The preponderance of opinion by the text writers supports the view that, by the end of

the nineteenth century, in English jurisprudence, the power to exclude aliens in times of

peace was not considered to be part of the prerogative. In Steven and Haynes, Forsyth's

Cases and Opinions on Constitutional Law (1869) the learned authors say (at 181): “the

Crown has no power by its prerogative alone, to send anyone, whether he be a subject or an

alien compulsorily out of the realm." Closer to the end of the nineteenth century, W F Craies

wrote:

“There is an increasing disposition and even a popular demand for the use bythe Executive, not only of the dispensing power with reference tocomparatively unpopular laws, but also of the prerogative instead of theslower methods of modern legislation …

The question for solution appears to be this: whether the Crown has,independently of the Legislature, any right to say in time of peace to anyforeigner who is within the empire or who knocks at its gates, that he mustdepart or may not enter …

Except with reference to foreign sovereigns, their ambassadors and theirforces, upon a careful historical examination of the subject, there seems to beno prerogative of the Crown either to exclude or expel aliens. Whether theybe innocent immigrants or sojourners or fugitive criminals of the deepestdye, their right to land or remain upon British soil depends not upon thewill of the Crown but upon the voice of the Legislature; nay, more, this righthas existed ever since the Great Charter, if not even earlier, and is so ancientthat no prerogative to the contrary can with any certainty be vouched”[emphasis added].

- “The Right of Aliens to enter British Territory” (1890) 6 Law Quarterly Review,

27 at 27 – 29.

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27 It is now necessary to refer to Cain’s case, which was relied upon in support of the

continued existence of the prerogative power to exclude aliens. That, however, was a case

about the power of the Dominion Government of Canada to legislate for the exclusion of

aliens. It is by no means clear whether the observations by way of obiter dicta about the

rights possessed by the supreme power in every state to refuse to permit an alien to enter that

state were intended to be a reference to the prerogative at all. Certainly, the later reference to

the decisions in Re Adam (1837) 1 Moo PC 460 and Donegani v Donegani III Knapp 63 add

nothing to the argument because those cases turned upon the French Code Civil: see the

observations of Barton J in Robtelmes (at 408) and Holroyd J in Toy (at 424) to this effect.

See also H V Evatt, The Royal Prerogative, 1987, at 129 – 130 and Craies, “The Right of

Aliens to Enter British Territory” (1890) 6 Law Quarterly Review 27 at 40.

28 Cain’s Case has been followed by the High Court in the context of affirming the

validity of legislation to exclude or expel aliens: Robtlemes; Ah Yin v Christie (1907) 4 CLR

1428; Ng Kwan v Commonwealth of Australia (1949) 80 CLR 535. In R v Bottrill; Ex parte

Kuechenmeister [1947] 1 KB 41, Cain’s Case was cited for the broad proposition that there

exists in England a royal prerogative to expel or detain an alien (at 51 per Lord Scott). But

that case concerned an application by a German national, a permanent resident in England

since 1931, interned at Wimbledon during World War II, and it was expressly acknowledged

that any transfer to the Parliament of power to exclude “friendly aliens” was irrelevant to the

case (at 51). The proposition that there is a broad prerogative power to expel or detain in

times of peace is not good law in Australia (see Lim at 19).

29 This survey amply supports, in my view, the conclusion that it is, at best, doubtful that

the asserted prerogative continues to exist at common law: See Harry Street & Rodney

Brazier, Constitutional and Administrative Law (5th Ed) (1985) at 149-50. The affirmative

conclusion that the prerogative no longer exists may well be justified, but I do not find it

necessary to express a concluded view on that matter. I proceed, however, to a discussion

about the displacement of a prerogative power of this nature on the footing that its existence

is entirely uncertain, and that there are no previous modern instances of its exercise.

SECTION 61

30 If it be accepted that the asserted executive power to exclude aliens in time of peace is

at best doubtful at common law, the question arises whether s 61 of the Constitution provides

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some larger source of such a power. It would be a very strange circumstance if the at best

doubtful and historically long-unused power to exclude or expel should emerge in a strong

modern form from s 61 of the Constitution by virtue of general conceptions of ‘the national

interest’. This is all the more so when according to English constitutional theory new

prerogative powers cannot be created: see generally Winterton, Parliament, the Executive,

and the Governor General (Melbourne University Press, 1983) at 120 and British

Broadcasting Corporation v Jones [1965] Ch 32 in which Diplock LJ said (at 79): “[I]t is 350

years and a civil war too late for the Queen’s courts to broaden the prerogative”.

31 The Australian cases in which the executive power has had an “interest of the nation”

ingredient can be contrasted with those in which such a power has been asserted for coercive

purposes. Thus, this executive power has been validly used to set up the Australian

Bicentennial Authority (Davis v The Commonwealth (1988) 166 CLR 79) and the CSIRO,

but has been held not to be available to sustain deportation (Ex parte Walsh & Johnson; Re

Yates (1925) 37 CLR 36 at 79); detention or extradition of a fugitive (Barton at 477, 483,

494); the arrest of a person believed to have committed a felony abroad (Brown); the arbitrary

denial of mail and telephone services (Bradley v Commonwealth (1973) 128 CLR 557); or

compulsion to attend to give evidence or to produce documents in an inquiry (McGuiness v

Attorney-General (Vic) (1940) 83 CLR 73): See generally P H Lane, Lane’s Commentary on

the Australian Constitution (2nd ed, 1997) at 439.

32 It is against this background that I now turn to consider the argument that if there is

any prerogative or other non-statutory executive power, it has been abrogated by the

Parliament through the enactment of the Migration Act 1958 (Cth) (“the Act”), as amended

from time to time.

RELATIONSHIP BETWEEN STATUTE AND PREROGATIVE

33 It is uncontentious that the relationship between a statute and the prerogative is that

where a statute, expressly or by necessary implication, purports to regulate wholly the area of

a particular prerogative power or right, the exercise of the power or right is governed by the

provisions of the statute, which are to prevail in that respect: Attorney-General v De Keyser’s

Royal Hotel Ltd [1920] AC 508 (“De Keyser’s”). The principle is one of parliamentary

sovereignty.

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34 The question is, what is the test to determine whether a prerogative power has been

displaced by statute? The accepted test is whether the legislation has the same area of

operation as the prerogative. In De Keyser’s, Lord Dunedin said (at 526):

“It is equally certain that if the whole ground of something which could bedone by the prerogative is covered by the statute, it is the statute that rules.On this point I think the observation of the learned Master of the Rolls isunanswerable. He says: ‘What use would there be in imposing limitations, ifthe Crown could at its pleasure disregard them and fall back onprerogative?’”

Lord Moulton said (at 554):

“the statutory powers … are wider and more comprehensive than those of theprerogative itself. [The Parliament] has indicated unmistakably that it is theintention of the nation that the powers of the Crown in these respects shouldbe exercised in the equitable manner set forth in the statute.”

Lord Sumner said (at 561):

“It seems also to be obvious that enactments may [abrogate the prerogative],provided they directly deal with the subject-matter, even though they enact amodus operandi for securing the desired result, which is not the same as thatof the prerogative.”

Lord Parmoor said (at 576):

“[w]here a matter has been directly regulated by statute there is a necessaryimplication that the statutory regulation must be obeyed, and that as far assuch regulation is inconsistent with the claim of a Royal Prerogative right,such right can no longer be enforced.”

See also per Lord Atkinson (at 538).

35 In Laker Airways Ltd v Department of Trade [1977] 1 QB 643, the House of Lords

held that there was no residual prerogative right to withdraw the designation of an airline,

Skytrain, under an international airline treaty between England and the United States (the

Bermuda Agreement), where the airline had been duly licensed under a domestic statute

regulating civil aviation. On the question of construing the scope of the domestic statute,

Roskill LJ said (at 722):

“I do not think that the Attorney-General’s argument that the prerogativepower and the power under municipal law can march side by side, eachoperating in its own field, is right. The two powers are inextricablyinterwoven. Where a right to fly is granted by the Authority under the statuteby the grant of an air transport licence which has not been lawfully revoked

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and cannot be lawfully revoked in the manner thus far contemplated by theSecretary of State, I do not see why we should hold that Parliament in 1971must be taken to have intended that a prerogative power to achieve what is ineffect the same result as lawful revocation would achieve, should havesurvived the passing of the statute unfettered so as to enable the Crown toachieve by what I have called the back door that which cannot lawfully beachieve by entry through the front. I think Parliament must be taken to haveintended to fetter the prerogative of the Crown in this relevant respect.”

Lord Denning MR said (at 706-707):

“Seeing then that … statutory means were available for stopping Skytrain ifthere was a proper case for it, the question is whether the Secretary of Statecan stop it by other means. Can he do it by withdrawing the designation?Can he do indirectly what he cannot do directly? Can he displace the statuteby invoking a prerogative? If he could do this, it would mean that, by a sidewind, Laker Airways Ltd would be deprived of the protection which the statuteaffords them … [T]he Secretary of State was mistaken in thinking that hecould do it.”

See also Lawton LJ (at 728) and Mocatta J at first instance (at 678) to thesame effect.

36 In Hunkin v Siebert (1934) 51 CLR 538, the Commonwealth suspended an employee

without pay, prior to dismissing him. It was conceded that the employee was not suspended

under or in accordance with the disciplinary procedures (including suspension) provided for

under the Public Service Act 1916 (Cth). The Commonwealth argued that, as another section

of the Public Service Act reserved the Crown’s common law power to dismiss a public

servant, and the right of suspension was an incident of that power, there existed outside the

statute, alternative common law mode of dealing with the employee. The Court ruled that the

express power of suspension “necessarily regulates and controls any prerogative power of the

Crown to suspend” (Starke J at 544). Rich, Dixon and McTiernan JJ said (at 542) that “such

provisions must be interpreted as restricting the common law right of the Crown to exercise a

similar power by other means and in other circumstances.”

37 These cases show that, where the prerogative is relied on as an alternative source of

power to action under a statute, the prerogative will be held to be displaced when the statute

covers the subject matter: See further John Goldring “The Impact of Statutes on the Royal

Prerogative; Australasian Attitudes as to the Rule in Attorney-General v De Keyser’s Royal

Hotel Ltd” (1974) 48 Australian Law Journal 434.

38 Reliance was placed on Barton to show that the courts must be slow to find a statutory

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intention to abrogate a prerogative power. But in Barton the High Court held that the

Extradition (Foreign States) Act 1966 (Cth) simply did not apply to the Executive’s request

of Brazil to detain the applicants, pending a request for extradition to Australia. Barwick CJ

(at 488) Mason J (at 499-500) and Jacobs J (at 507) did so on the basis that there was no

extradition treaty in place between Brazil and Australia. McTiernan and Menzies JJ, in their

joint judgment, confined themselves to considering whether the Act prevented the Attorney-

General from making a request to detain, pending a request for extradition (at 489, 491). The

obiter observations in that case to the effect that s 21 of the Extradition (Foreign States) Act

entirely displaced the prerogative power to make a requisition of a foreign state in

circumstances where the Act applied are telling: see 487-8 per Barwick CJ; 501 per Mason J;

and 508 per Jacobs J; McTiernan and Menzies JJ expressed no view. Thus, Barton ought not

be considered authority for the proposition that an executive power, apart from statute, can

coexist with a statute that applies in the same area. On the contrary, the Court appears to

have made decision squarely on the basis of the limited area of operation of the Extradition

(Foreign States) Act, and the consequential absence of any inconsistency between the

exercise of the prerogative power and the provisions of the statute. So much is clear from the

reasons for judgment of Mason J (at 501):

“Here, not only is there a conspicuous absence of express words, but the areaof operation of the statute, limited as it is to extradition pursuant to treaty,does not extend to the whole of the area covered by the exercise of theprerogative or executive power; moreover, there is no inconsistency betweenthe provisions of the statute and the exercise of that power so far as it relatesto the extradition of fugitive offenders from foreign states which are not partyto an extradition treaty with Australia.” [emphasis added]

39 The Court was also referred to the recent decision of Lindgren J in Oates v Attorney-

General (Cth) (2001) 181 ALR 559 where his Honour held that s 40 of the Extradition Act

1988 (Cth) does not displace the prerogative power to request a state to extradite a person to

Australia (at 571). Lindgren J was, however, careful to distinguish the obiter in Barton

referred to earlier on the basis that s 40 of the Extradition Act does not purport to provide the

foundation for the Attorney-General’s authority, and takes its place in a statute predominantly

concerned with extradition from Australia rather than to Australia.

40 Finally, it is necessary to consider the clarity with which an intention to displace a

prerogative or executive power needs to be expressed. It can readily be conceded that if a

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power is well used, well-established and important to the functioning of the executive

government, a very clear manifestation of an intention to abrogate will be required. But,

similarly, where an asserted power is at best doubtful, and where, if it exists at all, it does so

in a field that has been the concern of the Parliament for a very long time, a less stringent

view of the intention necessary to abrogate such a power is appropriate. Another such

indication may be where the Parliament has entered a field in which Australia has assumed

treaty obligations and has acted to give effect to those obligations in that field and where the

asserted prerogative or executive power might be capable of exercise in a manner not

conformable with the Parliament’s provision for the satisfaction of those obligations.

41 I now turn to consider the relevant provisions of the Act to determine whether, if there

is any executive or prerogative power deriving from a source other than statute, it was the

intention of the Parliament that the Act should exclude it. I do so in the light of the overview

of the legislation given by French J in his reasons for judgment.

MIGRATION ACT 1958 (CTH)

42 The long title of the Act reads: “an Act relating to the entry into, and presence in,

Australia of aliens, and the departure or deportation from Australia of aliens and certain other

persons”. As well as having an informative long title, this Act contains an express statement

of its object. This is provided for by s 4(1):

(1) the object of this Act is to regulate, in the national interest, thecoming into, and presence in, Australia of non-citizens.

43 Subsections (2), (3) and (4) then outline the Parliament’s conception that the various

mechanisms provided for in the Act – visas, self-identification, removal and deportation – are

to advance the object of the Act stated in subsection (1).

44 The reference in the stated object to “the national interest” is important and is

suggestive of a recognition by the Parliament of its unquestioned power to determine

comprehensively what the national interest shall be in this respect. An object so defined

tends to point against an intention that there should be some residual executive power to

determine, outside the statute, and in relation to the removal and deportation of persons

whose presence in Australia is not permitted by the Act, what the national interest requires in

any particular case. It is also, I think, relevant to point out that in this context the national

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interest, as contemplated by the provisions of the Act, includes recognition of Australia’s

protection obligations under the Convention relating to the Status of Refugees as amended by

the Protocol relating to the Status of Refugees (“Refugee Convention”), matters as to which

the Act makes elaborate provision.

45 The ordinary meaning of “Australia” in a statute extends to the external territories and

the territorial seas (Acts Interpretation Act 1901 (Cth), s 15B). But it was said at one point in

argument that the object of the Act was to prescribe a regime of lesser geographic scope.

Section 5 of the Act contains definition provisions that do reveal a more limited conception

of “Australia”. There are, however, others in which “Australia” is used in its normal wide

meaning. For example, “remove” is defined in s 5(1) as meaning “remove from Australia”.

Sections 189(2), 228(A), 230(1A), and 249 provide other examples. In any event, if there

were any doubt, it is expressly removed by s 6:

To avoid doubt, although subsection 5(1) limits, for the purposes of this Act,the meanings of "enter Australia", "leave Australia" and "remain inAustralia" and as well, because of section 18A of the Acts Interpretation Act1901, the meaning of parts of speech and grammatical forms of those phrases,this does not mean:

(a) that, for those purposes, the meaning of "in Australia", "toAustralia" or any other phrase is limited; or(b) that this Act does not extend to parts of Australia outside themigration zone; or(c) that this Act does not apply to persons in those parts.

46 The respondents also point to s 189(2), which provides for the detention of unlawful

non-citizens who are outside migration zone. That sub-section reads:

If an officer reasonably suspects that a person in Australia but outside themigration zone:

(a) is seeking to enter the migration zone; and(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person

47 It should also be noted that s 7 has the effect that the Act is expressly extended to the

territory of Christmas Island.

BORDER PROTECTION LEGISLATION AMENDMENT ACT 1999 (CTH)

48 If there were any doubt about the geographic reach of the Act and its scope in relation

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to Australia’s borders, it was removed by the amendments introduced by the Border

Protection Legislation Amendment Act 1999 (Cth) (“Amendment Act”). The long title of the

Amendment Act reads ‘An Act to provide enhanced protection for Australia's borders, and

for related purposes’. It amended the Act in three broad areas.

49 The first area of amendment concerned Division 12 – Offences in relation to entry

into, and remaining in, Australia. That Division creates offences with respect to the entry of

non-citizens into Australia (ss 229, 230, 232, 232A and 233) and provides for penalties. The

new s 228A provides that Division 12 applies both in and outside Australia. There is also a

new s 230(1A), which makes it clear that a person may be guilty of an offence under that

section when outside the migration zone.

50 A second area of amendment was directed to Division 13. That Division confers

powers to enter and search vessels (s 251), search and detain suspected offenders (s 252), and

prevent unlawful non-citizens from leaving a vessel (s 249). The amended s 251 enables an

officer (as defined in s 5) to board and search a vessel at any time if section 245F does not

apply to the vessel (as to which see below) and the officer reasonably suspects that there is on

board the vessel “a person seeking to enter the migration zone who would, if in the migration

zone, be an unlawful non-citizen.” The officer may stop the vessel (s 251(7)) and, where the

officer has a search warrant, may seize any document relating to entry into Australia of a

person who would have become an unlawful non-citizen (s 251(6)(c)(iv)). An officer may use

such reasonable force as is necessary for the exercise of these powers.

51 Section 249(1AA) also provides that an officer may prevent a person from leaving a

vessel on which the person has arrived in Australia if the officer reasonably suspects that the

person is intending to enter the migration zone and would, if in the migration zone, be an

unlawful non-citizen. This power continues once the vessel comes within the migration zone

(s 249(1)(a)).

52 Further, s 250 provides that the requirement contained in s 189 that an officer have a

suspicion that a person is or would be an unlawful non-citizen is automatically met where

“suspects” are concerned. “Suspects” are defined in s 250 as non-citizens who travelled to or

are brought to the migration zone, and are believed by an authorised officer on reasonable

grounds to have been on board a vessel when it was used in connection with the commission

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of an offence against a law in force in Australia. Such an offence includes the offences set out

in Division 12.

53 It is important to observe that the powers in Division 13 are regulated. For example,

section 252(7) provides that no civil suit shall lie against any person who is requested by an

authorised officer to perform a search under s 252 but with the notable qualification that the

search is to be performed in good faith and not in breach of subsection (8). Subsection 8

provides that the person performing the search shall not use more force, or subject the person

to a greater indignity, than is reasonably necessary to conduct the search. It is also important

to note the Division applies to the territorial waters by virtue of s 6.

54 The third and most significant area of amendment involved the insertion of Division

12A entitled ‘Chasing, boarding etc ships and aircraft’.

55 Under the new Division 12A, the commander of a Commonwealth ship (defined in s

245A) may request the master of a foreign ship within Australian waters to permit the officer

to board the ship (s 245B); and if that request is not complied with by a foreign ship, to chase

the ship even if the ship is out of sight (s 245C), and to use any reasonable means consistent

with international law to enable the boarding of the chased ship, including using “necessary

and reasonable force” and, where necessary, firing at or into the chased ship (s 245C). The

express conferral of the authority to fire at, and even into, the chased ship emphasises the

powerful scope and content of the Act.

56 Section 245C(3) enables these powers to be applied to a foreign ship on the high seas

where no request under s 245B has been made. Section 245D establishes a similar regime

with respect to Australian ships.

57 Section 245F confers on officers the power to board ships. Section 245F(1)(a)

provides:

This section applies to a ship that is outside the territorial sea of a foreigncountry if:

(a) a request to board the ship has been made under section 245B;(b) the ship is a foreign ship described in subsection 245C(3) (which

allows foreign ships on the high seas to be chased); or(c) the ship is an Australian ship.

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58 For the purposes of this section, ‘officer’ is defined by s 5 but also includes any

person who is in command of the Commonwealth ship, or is a member of the crew, or is a

member of the Australian Defence Force (s 245F(18)). He or she may not only board a ship,

but may also search and take copies of any document, and interrogate persons aboard. Such a

person may make arrests without warrant if (amongst other things) he or she suspects that a

person has committed an offence against the Act (s 245F(3)(f)). In doing so, such force is as

is necessary and reasonable in the exercise of a power under this section may be used (s

245F(12) and (13)). The officer may then detain the ship and “bring it, or cause it to be

brought, to a port or other place that he or she considers appropriate” if the officer reasonably

suspects that the ship is or has been involved in a contravention of the Act, either in or

outside Australia (s 245F(8)). Importantly for present purposes, the officer may also detain

any person who is found on the ship and bring the person, or cause the person to be brought,

to the migration zone (s 245F(9)).

59 An officer may also, upon direction from the Secretary, move and/or destroy certain

ships where the officer reasonably suspects that the ship is, or has been, involved in a

contravention of the Act: s 245H. The provision applies to Australian and foreign ships, and

to ships that are in Australian territory, and to ships outside Australia that have been detained

under s 245F(8). ‘Officer’ for the purposes of this section is an officer as defined in s 5.

60 Taken together these provisions provide a comprehensive regime for the control of

Australia’s borders and the patrol of the territorial waters in the circumstances such as those

that the rescued people were in at the relevant time. The regime could have applied to the

rescued people, and as Mr Farmer acknowledged in his evidence, had the government “not

taken a view” that it did not wish to apply the Act, it would have done so (V899/2001,

V900/2001, Transcript of Hearing, 2 September 2001, page 170-1). This regime extends to

the territorial waters and to the high seas. It regulates the right to detain, and creates offences.

61 As I have endeavoured to show, once a particular statutory regime is in place, there

can be no parallel executive right in the area expressly covered. In the scheme of the Act that

I have outlined, this means that if a migration officer forms a view under s 189, the regime of

detention and bringing to the migration zone provided for by s 189 has to take effect, with

various consequences, both detrimental and beneficial to a person affected. Beneficial, in that

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if the detainee has a claim for refugee status a range of rights derive from Australia’s

domestic conferral of rights pursuant to the Refugee Convention, detrimental because the

detainee’s ‘freedom’ to continue an illegal journey to Australia is curtailed by lawful

detention, followed no doubt by deportation. It would be a strange intention to impute to the

Parliament that a parallel system of unregulated executive discretion should be available, or

not available, according to whether an officer for the purposes of s 189(2) happened to be on

board, for example, a Commonwealth vessel tasked for border protection.

62 Finally, that the Act, as amended by the Amendment Act, was intended to be wide in

scope and powerful in its means to achieve its object, is confirmed in the Second Reading

Speech of the Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, in

which he said:

The bill that I now place before the chamber is part of the package ofmeasures announced by the Prime Minister on 27 June 1999 in response to amassive increase in the numbers of attempts at illegal entry to Australia.

The bill is part of the government's ongoing commitment to combat the flow ofunauthorised arrivals and other breaches of our laws at our borders.

The changes the bill proposes will strengthen legislative provisions relating tothe prevention of the smuggling of people into Australia.

These changes will maintain the integrity of Australia's borders againstattempted intrusions of the criminal elements behind most people smugglingactivities

There is, however, another side to the mass movement of people. This is thecynical worldwide trade in smuggling people from one country to another

These criminals [people smugglers] can also deal in large numbers of people.Earlier this year a ship was organised which was to leave Kenya with around2,000 people of Somali descent on board. These people were all on their wayto Australia.

It is a trade that needs to be dealt with before more lives are put at risk.

The people being smuggled are, in most cases, not genuine refugees seekinghaven in the first available safe country. They are instead young migrantsfrom less developed countries who are seeking to work in developedcountries.

Australia is increasingly a preferred destination and unwilling recipient of theattention of these people.

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The first of the influx of Chinese boats arrived in December last year,travelling at the conclusion of the monsoon season in the NorthernHemisphere.

A total of 471 Chinese nationals arrived, most targeting our eastern coastline.

This could happen again this year.

We need this legislation to be able to respond should it re-occur.”

- Australia, House of Representatives 1999, Debates (Hansard), 22September 1999, p 10147 [passages omitted]

63 The Minister went on to describe the purpose of the bill:

The bill will create new powers that will allow our officers to undertakeenforcement action beyond our territorial waters, and to arrest and prosecutethose involved in attempts to breach our sovereignty in this way.

The bill ensures that the investigatory and enforcement powers held byofficers of front-line border agencies are complementary so they may functionmore effectively and efficiently on behalf of Australia.

64 This review of the Act shows that it provides for a very comprehensive regime

relating to – in the words of the long title – “the entry into, and presence in, Australia of

aliens, and the departure or deportation from Australia of aliens.” By virtue of the

Amendment Act that regime specifically extends to protection of Australia’s sea borders. The

regime is comprehensive in its coverage of powers of apprehension and detention. No doubt

gaps can be found in the scheme, but the existence of these does not detract from the

comprehensive character of the statutory regime. The conclusion to be drawn is that the

Parliament intended that in the field of exclusion, entry and expulsion of aliens the Act

should operate to the exclusion of any executive power derived otherwise than from powers

conferred by the Parliament. This conclusion is all the more readily drawn having regard to

what I have concluded about the nature and the uncertainty of the prerogative or executive

power asserted on behalf of the Commonwealth.

DETENTION

65 Because I have concluded that there is no non-statutory executive or prerogative

authority for the detention of those rescued, and because no source of statutory authority is

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put forward by the appellants as justifying any such detention, it is now necessary to consider

the alternative arguments that no order for release should have been made.

66 As the trial judge noted, the appellants did not contest that the Federal Court of

Australia has jurisdiction in this case to make an order in the nature of habeas corpus. Nor

did they contest that the Victoria Council for Civil Liberties Incorporated and Mr Vadarlis

have standing in the circumstances to bring an application seeking the release of those

rescued. As North J observed, in this they were correct: see Waters v Commonwealth of

Australia (1951) 82 CLR 188 at 190; Truth About Motorways Pty Ltd v Macquarie

Infrastructure Investment Management Limited (2000) 200 CLR 591 per Gleeson CJ and

McHugh J at 600, Gummow J at 627 and Kirby J at 652-3; and Clarkson v R [1986] VR 464

at 465-6.

67 The first argument advanced by the Solicitor-General about detention was that those

rescued by the MV Tampa were not detained by the Commonwealth or by any of the other

appellants. Such restraint as they were subjected to, he submitted, was not a total restraint of

movement and a partial restraint was to be distinguished from detention. All that had

occurred was that the rescued people had been prevented from going to their preferred place

of destination, but they were free to proceed to any other destination. In these circumstances

there was no detention such as to provide a foundation for the issue of a writ of habeas

corpus.

68 In support of this argument the well-known cases of Bird v Jones (1845) 7 QB 742

and Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 were referred to. In relying

upon those cases it was not, as I understood the argument, suggested that detention for

present purposes need be detention in a confined space. As the Solicitor-General agreed, a

person might unlawfully be detained within a football field. Rather, the point made was that

if the person can leave the place of supposed detention, even though not by way of the

preferred means of egress, or not to the preferred destination, there is no detention.

69 When this question arises in the context of habeas corpus, however, it may well

require a different answer than when it arises in other contexts, such as false imprisonment. It

is clear from the authorities that, unlike an action for false imprisonment, it is not necessary

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to show actual detention and complete loss of freedom to found the issue of a writ of habeas

corpus. Rather, custody or control are the requisite elements: R v Secretary of State for Home

Affairs; Ex Parte O’Brien [1923] 2 KB 361, at 398 per Atkin LJ and at 381 per Bankes LJ.

As Clark and McCoy put it, ‘Control is the hypotenuse between the applicant and the

respondent under the remedy’: The Most Fundamental Legal Right: Habeas Corpus in the

Commonwealth (Clarendon Press, Oxford, 2000) at 200, and the applicant must be subject to

restrictions not shared by the public generally: see Eatts v Dawson (1990) 21 FCR 166 at 176

relying on Jones v Cunningham 371 US 236 (1963).

70 It is important, too, that a distinction is drawn between the elements of the remedy of

habeas corpus and those of false imprisonment. The first is based on an action for release in

order to be brought before the court; the second is a tort involving the notion of fault and the

attribution of liability: Clark and McCoy, The Most Fundamental Legal Right (2000) at 198-

9. For this reason, the authorities relied upon by the Commonwealth must be approached with

great caution as they are cases with respect to false imprisonment, not habeas corpus: see

Bird v Jones (1845) 7 QB 742; Balmain New Ferry Company Ltd v Robertson (1906) 4 CLR

379; Herd v Weardale Steel, Cole and Coke Company Ltd and Ors [1915] AC 67; Burns v

Johnston [1916] 2 KB 444.

71 Habeas corpus is a remedy directed to the relief of a person’s detention without lawful

authority, at a particular place and time. This is illustrated by the decision of the Supreme

Court of New South Wales in Lo Pak (1888) 9 NSWR 221 to which I have already referred in

connection with the prerogative. It will be recalled that in that case the applicant, a Chinese

subject with a right to resume residence in Australia, returned to New South Wales in

company with other Chinese people on board a vessel from which, by Government order,

they were prevented from disembarking. On the return of the order nisi for habeas corpus

one of the arguments was that the applicant was not in custody, and not imprisoned, because

the ship could go where it liked and the applicant with it. But of this argument Windeyer J

said (at 247-8):

“It is idle to urge that, because this ship can go anywhere the captain likes totake it, and because the applicant is free to go wherever the ship goes, that heis not imprisoned. What answer is that to this application? Compelling himto stay on board the ship is exactly what the applicant complains of as anillegal restraint upon his liberty.”

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72 Foster J was of a similar opinion; he concluded his judgment with the following

(at 249-250):

“I think, therefore, that no case has been made out justifying [the policeinspector] in restraining the liberty of these men; that he does restrain themthere can be no doubt, for it was held in R v Macquarie and Budge 13 S.C.R.264 that sending [a] steamer out with a passenger alone on board was animprisonment of that person, the person not being able to manage thesteamer, or to leave her without going into the water, and if these Chinamenare prevented from leaving the steamer and going where they please, that is asufficient restraint of liberty, and entitles them to a habeas corpus.”

73 The same situation arises here. The question should not be, ‘Would the person be free

if they went somewhere else?” but rather “Is the person detained here and now?”. If so, prima

facie, the detention is unlawful unless legally justified: Liversidge v Anderson [1942] AC 206

at 245. The same argument was considered by the European Court of Human Rights in

Amuur v France (1992) 22 EHRR 533, which concerned the confinement for twenty days of

four Somali asylum seekers in the transit zone of Paris-Orly airport. In rejecting the argument

that there was no detention because the asylum seekers could have removed themselves from

the situation by returning to Syria from where they had arrived, the Court said at 558:

“The mere fact that it is possible for asylum seekers to leave voluntarily thecountry where they wish to take refuge cannot exclude a restriction onliberty…Furthermore, this possibility becomes theoretical if no other countryoffering protection comparable to the protection they expect to find in thecountry where they are seeking asylum is inclined or prepared to take themin.”

74 To my mind, the fact that in Lo Pak the detainees had a right to enter the colony of

New South Wales and in the present case those rescued have no such right is not a relevant

point of distinction. A similar question arose in Chin Yow v United States of America 208 US

8 (1908) which concerned the detention by the United States Government of a Chinese man

on a vessel in San Francisco harbour who, while claiming to have been born in, and to be a

resident of, San Francisco, was held by the Commissioner of Immigration at San Francisco

not to have a right to land. The Supreme Court addressed the argument that because the man

had no right to enter, the Government was doing no more than stopping him entering and that

this could not amount to detention. The Court held that the question whether the detainee had

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a right to enter was not relevant to whether he was wrongly imprisoned, and that to determine

that question the facts of the case had to be examined. The Court held that he was

imprisoned.

75 As in Chin Yow, so too here, the fact that the rescued people did not have any ‘right’

to enter Australian waters does not answer the question whether they have been detained. Nor

does it deprive them of the ability to seek redress from this Court by way of habeas corpus.

As Brennan, Deane and Dawson JJ said in Lim at 19, citing, amongst other cases, Lo Pak and

Kioa v West (1985) 159 CLR 550 at 631:

“Under the common law of Australia … an alien who is within this country,whether lawfully or unlawfully, is not an outlaw. Neither public official norprivate person can lawfully detain him or her or deal with his or her propertyexcept under and in accordance with some positive authority conferred by thelaw.” (Emphasis added, citations omitted)

See also per McHugh J at 63.

76 The House of Lords similarly held that illegal entrants were entitled to seek redress by

means of habeas corpus in R v Home Secretary; Ex parte Khawaja [1984] AC 74, with Lord

Scarman stating (at 111) that:

“There is no distinction between British nationals and others. He who issubject to English law is entitled to its protection. This principle has been inthe law at least since Lord Mansfield freed “the black” in Sommersett’s case…”

77 It is, therefore, important to focus not on the lack of any right of the rescued people to

enter Australia, but on whether the rescued people were, in a real and practical sense,

detained by the Commonwealth.

78 In his reasons for judgment North J pointed to a number of factors that led to his

conclusion at [81] that the appellants ‘were committed to retaining control of the fate of the

rescuees in all respects’: see [77 - 81].

79 The appellants challenged some of the findings that led his Honour to this conclusion

and pointed to what they said were, in any event, three means of egress that were open to the

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rescued people: to leave with anybody who was prepared to take them from the MV Tampa,

to leave on the MV Tampa, and to leave pursuant to the Nauru/NZ arrangements. It is

accepted by the appellants that it is no answer to a writ of habeas corpus to say that there is a

means of escape if that means of escape is not reasonable: Burton v Davies and General

Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26 at 30. The question

therefore is whether there were reasonable means of egress open to the rescued people such

that detention should not be held to exist.

80 Putting to one side for the moment the rescued peoples’ opportunity to leave the MV

Tampa pursuant to what the trial judge called the Nauru/New Zealand arrangements, the

conclusion is inevitable that, viewed as a practical, realistic matter, the rescued people were

unable to leave the ship that rescued them on the high seas when the wooden fishing boat in

which they were travelling began to sink. The agreed statement of facts makes this clear. At

the relevant time, the MV Tampa was four nautical miles from Christmas Island and it is not

suggested that it was practicable for any of the rescued people to leave the ship otherwise

than by another ship or boat. As the agreed statement of facts says, the movements of those

rescued on the ship were controlled by officers of the Special Armed Services of the

Australian Defence Force and the rescued people were not allowed to leave the ship except to

leave Australian territorial waters. No other vessels were permitted to approach the ship

without the authorisation of the Commonwealth, which would not be given unless it was for

the purpose of moving the rescued people out of Australian territorial waters and then subject

to safety considerations and satisfaction of a bona fide intention not to move the people to

Australia. It was an agreed fact that the rescued people had no access to communication with

persons off the MV Tampa and that persons off the ship were unable to communicate with

them.

81 The trial judge found, and I see no reason to doubt his finding, that the chances of any

offer being made to take the rescued people off the ship were limited because the number of

people on the ship was so large. There was no evidence that anyone had come forward with

such an offer. To be effective any such offer would have had to involve a destination other

than Christmas Island or the Australian mainland, and therefore a sea voyage of some

considerable duration.

82 North J also concluded that it was not reasonable to expect, nor was it a practical

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possibility, that the rescued people could leave on the MV Tampa. In reaching this

conclusion the judge said that it was an agreed fact that the captain would not sail out of

Australian waters while the rescued people were on board. The appellants argued that the

agreed facts did not go this far and this may be literally true; but the agreed fact about the

view held by the captain was so close to this as a matter of substance that nothing turns on

that discrepancy, if indeed there is one.

83 The appellants contended that there was no detention by them because the captain of

the MV Tampa was free to leave and that his refusal to leave could not be attributed to the

appellants. It was also argued that the trial judge erred in finding as a fact that the captain

would not under any circumstances sail out of Australian waters while the rescued people

were on board. The trial judge did not use the expression “under any circumstances” but

treated it as a matter of agreed fact that the captain would not sail out of Australian waters

whilst the rescued people were on board. This does not seem to me to be inconsistent with

the agreed fact about the view held by the captain. In any event, it is hard to see how in a

practical sense Captain Rinnan was free to leave. He had 433 people on the deck of his

container ship when that ship was licensed to carry only 50, and the people were apparently

taking shelter in empty cargo containers. There was evidence about the Captain’s concerns

about the dangers of a voyage across the open seas with these people on board. Although, as I

understood the argument, it was accepted that safety considerations might well have operated

to keep the vessel in Australian waters for the time being, it was suggested that solutions

could have then been found and that the judge should have so held. But even if it be accepted

that, sooner or later, solutions would have been found, that does not answer the practical

position as it existed at the relevant time. In my view it was open to the trial judge to find that

this option did not offer a reasonable or practical means of egress for the rescued people.

84 Finally, there is the question whether the Nauru/New Zealand arrangements

constituted a reasonable means of escape. The appellants challenged the finding of the trial

judge that the communication to the rescued people of the Nauru/New Zealand arrangements

was ‘apparently not in their native language’. The correct conclusion is, I think, that there

was no evidence either way; indeed the trial judge mentioned this at [78]. But nothing turns

on the point, and even if it be accepted that the communication was understood by the

rescued people on the ship, that does not detract from the conclusion that the Nauru/New

Zealand arrangement was merely a continuation of control or custody by the appellants in

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another form. The fact the appellants proposed to move the rescued people to another

location does not lead to the conclusion that the detention was at an end. In my view it was

open to the trial judge to find, at [81], with respect to the Nauru/New Zealand arrangement,

that:

“Where complete control over people and their destiny is exercised by othersit cannot be said that the opportunity offered by those others is a reasonableescape from the custody in which they were held. The custody simplycontinues in the form chosen by those detaining the people restrained.”

85 It is also necessary to consider the general contention that the people who were

rescued were not detained by any act of the Commonwealth or the other appellants. The

answer to this submission is that the Commonwealth acted within a factual framework that

involved the known intention of the captain of the MV Tampa to proceed to Christmas Island

(Agreed Fact 17) and his view that he would not take his ship out of Australian waters while

the rescued people were on board. The trial judge’s findings of fact that the appellants were

committed to retaining control of the fate of the rescuees in all respects, and that the

appellants took to themselves “complete control over the bodies and destinies of the

rescuees”, (at [81]) were made in the context of these earlier findings. To take a practical

example on different facts, the circumstance that a person has decided to shut the door of a

room, and to keep it shut, can surely provide no answer to a claim against another person

who, knowing of those facts, then closes the only other door with its consequence that the

people inside cannot get out.

86 I agree that the learned judge was probably incorrect when he found that the

Commonwealth had prevented, rather than merely failed to facilitate, communication with

the rescued people. The agreed fact was however that the rescued people had no access to

communications and, viewed, in the broader context, if the learned judge was in error in this

respect, it is an error that does not have a significant bearing on the correctness of his overall

conclusions about detention.

87 I see it as irrelevant that individual acts that brought about the detention may well

have been authorised by law. The submissions on appeal did not address the circumstances

under which Flying Fish Cove was closed but I do not see what difference it makes if, as I

would be prepared to assume, that closure was lawful. It is easy to imagine how a series of

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individually lawful acts could bring about a detention that was not justified by law. In the

end, the focus must be upon the ultimate consequences, for the freedom of an individual, of

the act or series of acts by which detention is brought about.

88 The appellants then argued that the situation of the rescued people was “self-

inflicted”. Like the trial judge, I do not find that a helpful concept. As discussed earlier,

notions of fault and defences such as volenti non-fit injuria, which are significant in tort law,

have no place in the law with respect to habeas corpus. In any event, I agree with the trial

judge that the situation of the rescued people cannot be said to be self-inflicted. They could

not have anticipated the situation in which they found themselves.

89 I also reject the argument of the appellants that those bringing the applications on

behalf of the rescued people were doing so for an impermissible collateral purpose. The first

respondents’ purpose was to obtain the release of the rescued people from unlawful detention.

It is true that the consequence of that would seem inevitably to be that the rescued people

would be placed in immigration detention because of the mandatory provisions of the Act, in

particular s 189. But, both conceptually and on the authorities, it can be no bar to habeas

corpus, directed as it is to unlawful detention, that the issuing of the writ may lead to another

form of detention that is lawful: in In Re Gregory (1899) 25 VLR 539; Re Esperalta [1987]

VR 236. Further, the fact that lawful detention would be accompanied by other rights seems

to me to provide no basis for saying that an action to end unlawful detention would be in

some way tainted. If this area of discourse is illuminated by the fundamental notion that

habeas corpus provides a remedy for what is unlawful, in vindication of the principle of

lawfulness, then such a proposition must fail.

REMEDY

90 It follows that I would not disturb the trial judge’s finding that the persons rescued by

the MV Tampa were detained by the appellants and that their detention was not authorised by

law.

91 This conclusion brings me to the final question on the appeals, which is whether the

order made went beyond that which was legally justified. It is clear that there is no discretion

to refuse relief once the grounds for the issue of the writ of habeas corpus have been made

out, and the appellants did not submit otherwise: see Somerset v Stewart (1772) 98 ER 499; R

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v Langdon; Ex parte Langdon (1953) 88 CLR 158 per Taylor J. The question is, therefore,

whether in fashioning the order he made to meet the circumstances of the case the trial judge

was in some way in error.

92 As is clear from his reasons, North J made the orders in the terms he did because, at

the time, the people concerned were aboard a ship at sea and his Honour considered that the

remedy could only be made effective in a practical sense by an order obliging their release on

mainland Australia. If the remedy was to be effective it is difficult to see what other order the

judge could, in the circumstances, have made. It should also be borne in mind that historically

the remedy operated to compel the production of a person before the court. The order made

by the trial judge has not been shown to have gone beyond that which was legally justified.

93 It follows that I would dismiss the appeals.

THE CROSS-APPEAL

94 As to the Cross-Appeal, I agree with what French J has said. Difficult and important

questions might in other circumstances have required close attention but for the reasons given

by French J the cross-appeal should be dismissed.

I certify that the preceding ninety-four (94) numbered paragraphs are atrue copy of the Reasons forJudgment herein of the HonourableChief Justice Black.

Associate:

Dated: 18 September 2001

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PLACE: MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

95 The facts and context in this appeal are explained by French J. I agree with French J,

for the reasons he gives, that the appeal should be allowed. I agree also with the orders

proposed by French J. I wish to add some further reasons for rejecting the principal claim

upheld by the primary Judge.

The grounds of the claim at first instance

96 The grounds stated in the second amended application, dated 4 September 2001, to

the primary Judge for final relief in the form of writs of mandamus, injunction and habeas

corpus and declaratory relief in the case of Mr Vadarlis (and in substance likewise in the case

of the Victorian Council for Civil Liberties Inc (“VCCL”) are as follows:

• The “Tampa occupants” (“the occupants”) were “detained” upon MV Tampa by the

respondents to the proceedings, viz, the Minister for Immigration and Multicultural

Affairs (“the Minister”), the Commonwealth of Australia (“the Commonwealth”), and

the Secretary of the Department of Immigration and Multicultural Affairs (“the

Secretary”), and “prohibited from leaving the vessel to land on Australian soil for any

purpose whatsoever”.

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• If the detention was not “immigration detention” (presumably pursuant to the powers

and duties conferred and imposed upon Commonwealth officers by the provisions of

Part 2 of the Migration Act 1958 (Cth) (“the Act”) (see below)), it was otherwise

unlawful.

• The Minister and the Secretary were responsible for the immigration detention of the

occupants.

• The Minister and the Secretary were under a duty under s 256 of the Act to give the

occupants visa application forms, to provide all reasonable facilities for obtaining

legal advice and for taking legal proceedings in relation to their immigration

detention. (Section 256 provides that a person in immigration detention may have

access to certain advice, facilities, etc.)

• By their conduct in seeking to enter Australian waters and to land at Christmas Island

and in attempting to insist that the MV Tampa not return them to Indonesia, but take

them to Christmas Island, the occupants made implicit requests to apply for visas and

to be given access for visas and to be given access to legal advice and/or to take legal

proceedings.

• Alternatively, the occupants had made a request to the Minister, the Commonwealth

and the Secretary for political asylum.

• The Minister and the Secretary had acted in breach of their statutory duties by

directions given to officers of the SAS, other Commonwealth officers and the MV

Tampa’s master and crew who, contrary to s 256 of the Act, refused the occupants

access to facilities, so as the enable them to make valid applications for visas under

s 45 of the Act, which applications the Minister had a duty to consider under s 47 of

the Act. (Section 45 provides that, subject to the Act and the regulations, a non-

citizen who wants a visa must apply for a visa of a particular class. Section 47(1)

provides that the Minister is to consider a valid application for a visa.)

• Alternatively, the Minister and the Secretary and Department of Immigration and

Multicultural Affairs’ (“DIMA”) officers suspected that each occupant was seeking to

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enter the “migration zone” and would, if in that zone, be an unlawful citizen, so that

pursuant to the Act, particularly s 189(2) and s 196, the Minister and the Secretary

were obliged to detain the occupants, or cause them to be detained and kept in

immigration detention. Alternatively, the Secretary was so obliged. (Section 189(2)

provides that if an “officer” reasonably suspects that a person in “Australia” (which

includes Australia’s territorial (coastal) sea and the territorial sea adjacent to an

external territory: s 15B, Acts Interpretation Act 1901 (Cth)), but outside the

migration zone (which includes (by s 5(1)) “land that is part of a State or Territory at

mean low water mark” (emphasis added)) is seeking to enter the zone, and would, if

in the zone, be an “unlawful non-citizen”, the officer must detain the person. Section

196 provides that an unlawful non-citizen detained under s 189 must be kept in

immigration detention until he or she is removed from Australia under s 198 or s 199,

or deported under s 200 or granted a visa.)

• The Minister, the Commonwealth and the Secretary intended to remove the occupants

from Australia.

97 It will be noted that the claim does not, and, in my view, could not, assert that the

occupants had a common law right to enter Australia. On the contrary, the claim is aimed at

the provisions of the Act. As will appear, in my opinion, the absence of a claim of such a

common law right is fatal to the occupants’ case for relief in the form of the common law

prerogative writ of habeas corpus. As will be seen, this is not a mere pleading point. As a

matter of substance, the common law has never recognised an alien’s right to enter territory.

The remedies claimed by way of permanent relief at first instance

98 Upon those grounds, Mr Vadarlis claimed the following remedies by way of final

relief:

• An injunction restraining the Minister, the Commonwealth, the Secretary and DIMA

officers, and other Commonwealth “officers”, from interfering with or impeding

contact by telephone and facsimile between Mr Vadarlis and the occupants.

• An order in the nature of mandamus compelling the Minister and the Secretary to

perform their duties under s 256 and s 189(2) of the Act by (a) permitting Mr Vadarlis

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to make contact by telephone and by facsimile with those occupants who wish to

speak to a lawyer; and (b) giving a visa application form to those occupants who,

after speaking with Mr Vadarlis or another lawyer or migration agent, request such a

form.

• An order in the nature of mandamus compelling the Minister and the Commonwealth

to direct the Secretary, or alternatively to compel the Secretary, to detain the

occupants pursuant to s 189(2).

• A declaration that the occupants were entitled to leave MV Tampa and to land in the

territory of Australia.

• A declaration that Mr Vadarlis is entitled to communicate with the occupants for the

purposes of giving legal advice about their detention and the legal proceedings

available to them and for the purpose of facilitating access by the occupants to

migration agents who could give them “immigration assistance” for the purposes of

the Act.

• An injunction restraining the Minister, the Commonwealth, the Secretary and their

officers from: (a) impeding, directly or indirectly, communication with the occupants

by any person desiring to give migration advice; (b) preventing the occupants from

disembarking MV Tampa when in Australian waters; and (c) preventing the

occupants from landing on Christmas Island.

• A writ of habeas corpus directed to the Minister, the Commonwealth and the

Secretary commanding them to release the occupants from custody.

The sources of the jurisdiction sought to be invoked for the grant of the remedies soughtat first instance

99 As sources of the Court’s jurisdiction to grant the relief applied for, Mr Vadarlis

sought to invoke the provisions of s 39B(1), or alternatively s 39B(1A)(c) of the Judiciary

Act 1903 (Cth). Relevantly, s 39B(1) invests original jurisdiction in the Court with respect to

any matter in which a writ of mandamus or prohibition or an injunction is sought against an

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officer of the Commonwealth. Relevantly, s 39B(1A)(c) invests the Court with jurisdiction

also in any matter arising under any laws made by the Parliament.

The necessary components of Mr Vadarlis’ claim

100 In my opinion, it is clear, on basic principles, that in order to obtain any of the final

orders sought in his application, Mr Vadarlis had to establish the following:

• That the Court had jurisdiction to entertain the claim.

• That Mr Vadarlis had standing (that is, a sufficient interest recognised by law) to sue.

• That there was a relevant substantive cause of action (that is, a legal right)

recognised by law, and enforceable by this Court.

• That the Court was empowered to grant the specific form of relief sought.

• That it was appropriate, in the exercise of the Court’s discretion, to grant the relief

sought.

This Court’s jurisdiction to issue a writ of habeas corpus

101 It is equally clear, in my opinion, that a number of major jurisdictional issues arose on

the claim for a writ of habeas corpus. In short, in my opinion, this Court is not invested with

the power to issue such a writ. No such power is expressly invested and, in my view, no such

implication should be made.

102 The High Court’s jurisdiction to issue a writ of habeas corpus was considered by

Deane J in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123

ALR 478. There, the applicant applied to the High Court for a writ of habeas corpus directed

to the officer in charge of cells at the ACT Supreme Court, claiming that his detention,

pursuant to the order of a magistrate, was illegal because his initial arrest had been unlawful.

It was held, in refusing the application, first, that the writ of habeas corpus was not available

as a means of collaterally impeaching the correctness of orders made by a court of competent

jurisdiction which was not shown to be a nullity (see also Phong v Attorney-General for the

Commonwealth [2001] FCA 1241, Full Federal Court at [25]); and secondly, that the

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jurisdiction of the High Court to entertain an application for habeas corpus could only arise

as an incident of the High Court’s original or appellate jurisdiction under other provisions,

and did not derive from s 33(1)(f) of the Judiciary Act. (Section 33(1)(f) empowers the High

Court to “direct the issue of writs … of habeas corpus…”.)

103 Deane J cited, amongst other authorities, Rich J in R v Bevan; Ex parte Elias and

Gordon (1942) 66 CLR 452, who said (at 462):

“[T]he claim for … habeas corpus fails because this Court has no generaljurisdiction in that regard as its power is attached to and exercised in aid ofFederal jurisdiction, whether original or appellate ….”

104 A further, fundamental, question must arise as to the scope of the Court’s power to

issue (as was done here) a writ of habeas corpus not merely to release the occupants, but also

(in the context of a claim (as pleaded) clearly aimed at obtaining access to the statutory

“migration zone”) to “bring those persons ashore to a place on the mainland of Australia”; in

other words, to use the writ to achieve an entry to Australia, which entry would otherwise be

without authority and unlawful. This Court, in my view, has no power to authorise such an

entry. It is plain that this is exclusively a matter for the Executive (see MIEA v Guo (1997)

191 CLR 559 at 578 – 579; 598 – 600.)

105 Another serious procedural defect, in my opinion, was the absence from the habeas

corpus proceeding of the captain of MV Tampa. On any view, he was a necessary party to

such a claim, as a matter of form and of substance (see R v Carter; Ex parte Kisch (1934) 52

CLR 221 per Evatt J at 223).

106 However, provided the original jurisdiction of this Court is properly invoked, this

Court could entertain a claim for an order in the nature of a writ of habeas corpus. The

power to so order might, if appropriate, be found in s 23 of the Federal Court of Australia Act

1976 (Cth), whereby the Court is given “power, in relation to matters in which it has

jurisdiction, to make orders of such kinds … and to issue, or direct the issue of, writs of such

kind, as the Court thinks appropriate”. Another potential source of power might be the

Court’s accrued or associated jurisdiction, provided again that the Court’s original

jurisdiction was properly invoked.

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107 It might be thought that nothing significant would turn here on the question whether

this Court may issue habeas corpus in the strict sense (as his Honour did) or an order in the

nature of habeas corpus. In fact, there are two very significant practical implications, both

of which his Honour relied upon in granting habeas corpus. First, it is much easier to

establish standing to obtain habeas corpus than in the case of the other prerogative writs, and

easier to show standing for habeas corpus than in an application for an injunction,

particularly a mandatory injunction of the kind effectively issued here. Secondly, although as

Taylor J noted in R v Langdon; Ex parte Langdon (1953) 88 CLR 158 (at 161) a writ of

habeas corpus “does not issue as of course”, it is usually easier for an applicant to satisfy the

Court’s discretion to issue habeas corpus than to obtain final relief in the case of the other

prerogative writs, or in the case of an injunction, especially if relief is in the form of a

mandatory order. But, in any event, in order to persuade a court to grant any form of

discretionary relief, the occupants would need to confront the principle, as Lord Scarman has

explained, that it is wrong that a person should rely on his or her own unlawful act (here, in

practically compelling MV Tampa to divert from Indonesia to Christmas Island) to secure an

advantage which could not have been obtained if the person had acted lawfully (see Shah and

Akbarali v Brent London Borough Council [1983] 2 AC 309 at 344).

108 Since the appeal is urgent, however, I am prepared to assume (without deciding) that

for present purposes, Mr Vadarlis could have established in his favour all but one of the

essential elements, previously mentioned; that is I will assume jurisdiction, standing, power

to make the order made by his Honour, the presence of all necessary parties and that in the

exercise of its discretion, it was appropriate to order (as a remedy) that the Minister, the

Commonwealth and the Secretary “release [the occupants] and bring [them] ashore to a place

on the mainland of Australia”. In other words, I reserve for consideration here only the single

remaining element to be demonstrated by Mr Vadarlis, that is to say, the existence of a

relevant substantive cause of action.

Could Mr Vadarlis have established a relevant substantive cause of action, that is, aright recognised by law, enforceable by this Court?

109 In my opinion, not only was this the central question in the litigation, but the settled

course of authority dictates that it be answered in the negative. In this fundamental respect,

his Honour fell into error, in my view, for the following reasons.

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110 As has been noted, his Honour’s order requires all the respondents (who include the

Commonwealth) to release certain persons, then bring them ashore to a place on mainland

Australia. Necessarily, this involves the Court assuming a jurisdiction and power to compel

the entry of those persons into the migration zone established under the Act, with the

consequence that the applicable statutory provisions (of the Act) are then triggered and

operate. But, in my opinion, this compulsory entry could only be justified if those persons

have a right recognised by law to enter that zone. Yet “[a] court of law has no power to give

effect to any but rights recognised by law” (see Waterside Workers’ Federation of Australia v

J W Alexander Ltd (1918) 25 CLR 434 at 464). As McHugh J said in Chu Kheng Lim v

MILGEA (1992) 176 CLR 1 (at 68):

“Courts have no general power to order the release of person kept in custodypursuant to statutory enactments. In Waterside Workers’ Federation ofAustralia v. J. W. Alexander Ltd., Isaacs and Rich JJ, pointed out that ‘[a]Court of law has no power to give effect to any but rights recognised bylaw’.”

111 That is to say, it is basic that a Court order may vindicate only those rights which are

recognised by law. It appears, however, that North J assumed, without deciding, that such a

relevant right existed here. The structure of his Honour’s reasons, as explained by French J,

confirm that this was the primary Judge’s approach, especially given his Honour’s failure to

advert to the impact of the Act when considering the common law claim for habeas corpus.

In my opinion, if his Honour made that assumption, it was without foundation, as the

authorities (see below) show. Rather, his Honour seemed to have approached the case upon

the basis that habeas corpus is a free-standing remedy (which it plainly is not) and that,

accordingly, it was not necessary to locate a substantive right (relevantly to enter Australia)

to be vindicated by Court order. Instead of inquiring whether there was a substantive right in

the occupants, his Honour focussed upon the scope of Executive power. In this way, with all

respect, his Honour addressed the wrong question. As a consequence, his order is vitiated as

seeking to do indirectly what could not be done directly, something which the law will not

permit (see e.g. Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349 per

Dixon J; see also D K Singh “What cannot be done directly cannot be done indirectly”

(1959) 32 ALJ 374; 33 ALJ 3). In my opinion, the primary Judge should have enquired

whether at common law (habeas corpus being a common law remedy) there was a legal right

in the occupants to enter Australia. If his Honour had asked this question, it would, in

accordance with the settled course of authority, have been answered in the negative.

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112 The course of authority relevantly begins with Musgrove v Chun Teeong Toy (1891)

AC 272, where the Privy Council held that, apart from statute, an alien has no legal right

enforceable by action to enter Victoria. The Lord Chancellor said (at 282):

“…quite apart from the statutes …, a grave question [arises] as to theplaintiff’s right to maintain the action. He can only do so if he can establishthat an alien has a legal right, enforceable by action, to enter Britishterritory. No authority exists for the proposition that an alien has any suchright. Circumstances may occur in which the refusal to permit an alien toland might be such an interference with international comity as wouldproperly give rise to diplomatic remonstrance… but it is quite another thingto assert that an alien [so] excluded … by the executive government there, canmaintain an action in a [common law] Court….”

113 His Lordship went on to say (at 283):

“When once it is admitted that there is no absolute and unqualified right ofaction on behalf of an alien refused admission to British territory, theirLordships are of opinion that it would be impossible upon the facts which thedemurrer admits for an alien to maintain an action.”

114 In Attorney-General (Canada) v Cain [1906] AC 542, Lord Atkinson, writing for the

Privy Council, said (at 546):

“One of the rights possessed by the supreme power in every State is the rightto refuse to permit an alien to enter that State, …: Vattel, Law of Nations,book 1, s. 231; book 2, s. 125.”

115 His Lordship went on (at 547) to approve and follow Musgrove in the context of

upholding a common law power to exclude aliens.

116 In Ah Yin v Christie (1907) 4 CLR 1428, Griffith CJ said (at 1431):

“The question [here] … is … of the right of a stranger to claim admission to aforeign country. That is a matter depending upon political, not upon civil,status. See per Lord Westbury in Udny v. Udny. It is settled law, as pointedout by this Court in the case of Robtelmes v. Brenan, quoting the decision ofthe Judicial Committee in Attorney-General for Canada v. Cain and Gilhula,that one of the rights possessed by the supreme power in every State is theright to refuse to permit an alien to enter that State, ….”

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117 In Johnstone v Pedlar [1921] 2 AC 262, Viscount Cave said (at 276):

“No doubt a friendly alien is not for all purposes in the position of a Britishsubject. For instance, he may be prevented from landing on British soilwithout reason given: Musgrove v. Chun Teeong Toy;…”

118 Lord Phillimore said (at 296):

“The King, however, can refuse any alien admission to the realm. This wasestablished by the decision of the Privy Council in Musgrove v. Chun TeeongToy;…”

119 In Ex parte Kisch, above, Evatt J said (at 223):

“In Musgrove v. Chun Teeong Toy, the Privy Council determined that analien did not possess a ‘legal right, enforceable by action’, or an ‘absoluteand unqualified right of action’ to enter British territory.”

120 Evatt J went on (at 223) to refer to Johnstone v Pedlar, and to the power or

prerogative to “refuse an alien admission to the realm”.

121 In R v Bottrill; Ex parte Kuechenmeister [1947] KB 41, Scott LJ said (at 51):

“The King, under our constitution, is under no obligation to admit into theUnited Kingdom, … any alien.”

122 In Koon Wing Lau v Calwell (1949) 80 CLR 533, Latham CJ said (at 555 – 556):

“As far as aliens are concerned, they can be excluded and prevented fromremaining in the country at common law or by the authority of a statute: seeMusgrove v. Chun Teeong Toy; Attorney-General for Canada v. Cain andGilhula; R. v. Bottrill.”

123 Again, in Lim, above, Brennan, Deane and Dawson JJ reviewed the authorities saying

(at 29 – 31):

“While an alien who is actually within this country enjoys the protection ofour law, his or her status, rights and immunities under that law differ from thestatus, rights and immunities of an Australian citizen in a variety of importantrespects. For present purposes, the most important difference has alreadybeen identified. It lies in the vulnerability of the alien to exclusion …. Thatvulnerability flows from both the common law and the provisions of theConstitution. For reasons which are explained hereunder, its effect issignificantly to diminish the protection which Ch. III of the Constitution

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provides, in the case of a citizen, against imprisonment otherwise thanpursuant to judicial process.

The power to exclude … even a friendly alien is recognized by internationallaw as an incident of sovereignty over territory.”

124 Gaudron J said (at 57):

“Aliens, not being members of the community that constitutes the body politicof Australia, have no right to enter … Australia unless such right is expresslygranted. Laws regulating their entry to and providing for their departurefrom Australia (including deportation, if necessary) are directly connectedwith their alien status. And laws specifying the conditions on and subject towhich they may enter … Australia are also connected with their status asaliens to the extent that they are capable of being seen as appropriate oradapted to regulating entry or facilitating departure if and when departure isrequired.”

125 It follows, in my view, that the occupants had no legal right at common law

enforceable in a court to enter Australia. It must follow, in my view, that no foundation

existed for the grant of a common law prerogative writ of habeas corpus compelling their

entry into Australia. It is true that in other areas, some questions have not been finally

settled. But in this regard, it is necessary to distinguish, for present purposes, between (a) the

“right” of an alien outside Australia to enter and the source of the power to exclude and (b)

excluding an alien and expelling an alien. That is to say, whatever questions may arise as to

the power to deport without legislative backing (see Re Bolton; Ex parte Beane (1987) 162

CLR 514) there is nothing in any of the authorities to contradict the principle that an alien has

no common law right to enter Australia. This aspect is beyond argument. For this reason

alone, I would allow the appeal.

Postscript

126 Finally, it should be added that this is a municipal, and not an international, court.

Even if it were, whilst customary international law imposes an obligation upon a coastal state

to provide humanitarian assistance to vessels in distress, international law imposes no

obligation upon the coastal state to resettle those rescued in the coastal state’s territory. This

accords with the principles of the Refugee Convention. By Art 33, a person who has

established refugee status may not be expelled to a territory where his life and freedom

would be threatened for a Convention reason. Again, there is no obligation on the coastal

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state to resettle in its own territory. Any extra-judicial assessment of Executive policy in the

present circumstances should be seen in this context.

I certify that the preceding thirty-two(32) numbered paragraphs are a truecopy of the Reasons for Judgmentherein of the Honourable JusticeBeaumont.

Associate:




VICTORIAN DISTRICT REGISTRY V1007 OF 2001

On Appeal from a Single Judge of the Federal Court

BETWEEN: THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURALAFFAIRSFIRST APPELLANT






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VICTORIA DISTRICT REGISTRY V1008 OF 2001

On Appeal from a Single Judge of the Federal Court

BETWEEN: THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURALAFFAIRSFIRST APPELLANT

THE HONOURABLE DARYL WILLIAMS ATTORNEY-GENERALSECOND APPELLANT

THE HONOURABLE PETER REITH MINISTER OF DEFENCETHIRD APPELLANT





JUDGES: BLACK CJ, BEAUMONT and FRENCH JJ


PLACE: MELBOURNE

REASONS FOR JUDGMENT

FRENCH J:

Introduction

127 Three weeks ago the Norwegian vessel MV Tampa, acting on the request of the

Australian Government, rescued 433 persons from a wooden fishing boat in the Indian

Ocean. The persons rescued ("rescuees") were of Middle Eastern origin and apparently

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heading for Australia. The Captain tried to take the rescuees to Indonesia, but some of them

objected. He then sailed to Christmas Island but was refused permission to land them. The

port was closed by the Harbour Master. The Captain entered into and remained in Australian

territorial waters off Christmas Island contrary to the directions of the Australian

Government. He refused to leave because of the condition of some of his passengers and the

risk of travelling across open water to Indonesia.

128 The Australian Government sent troops to secure the vessel and to provide medical

and humanitarian assistance to the rescuees. Subsequently arrangements were made by inter-

governmental agreement for Nauru and New Zealand to receive them in order to determine

whether all or any of them were entitled to the benefit of the Refugee Convention.

129 Applications were filed by the Victorian Council of Civil Liberties ("VCCL") and a

Victorian solicitor, Eric Vadarlis, claiming, inter alia, that the rescuees were being unlawfully

detained by the Commonwealth and certain of its Ministers ("the Commonwealth") and

seeking writs of habeas corpus. After an urgent hearing, North J granted the writs and

directed the release of the rescuees on to the mainland.

130 The Commonwealth and other ministerial respondents have appealed against the

decision as a matter of urgency. Under arrangements which maintain the legal status quo the

rescuees have been transferred to the naval vessel, HMAS Manoora, to be taken to Nauru.

The appeals raise important questions about the executive power of the Commonwealth and

its relationship to the Migration Act 1958 (Cth) and whether the rescuees were in truth

detained by any action of the Commonwealth amenable to habeas corpus.

Factual Background

131 On 26 August 2001, a wooden fishing boat travelling from Indonesia to Australia and

carrying 433 people was sinking in the Indian Ocean about 140 kilometres north of

Australia's Christmas Island Territory. A Norwegian registered container ship, the MV

Tampa, was in the area at the time on its way from Fremantle to Singapore. It carried a crew

of twenty seven and was under the command of Captain Arne Rinnan. The vessel is a 49,000

tonne container ship, licensed to carry no more than fifty people. Captain Rinnan received a

call from Australian authorities asking him to rescue the people from the sinking boat. He

was told it had eighty people on board. He agreed to assist and was guided to the boat by the

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Australian Coast Guard.

132 The MV Tampa arrived at the location of the fishing boat at about 5pm. It took on

board the 433 rescuees and inquired from the Australian Coast Guard where they should be

taken. The Coast Guard officers said they did not know. The MV Tampa headed for

Indonesia. Some of the rescuees objected. They said they would commit suicide if the

captain did not change course for Christmas Island. The Captain then decided to sail to

Christmas Island. When the vessel was approaching the Island, but still outside Australian

territorial waters, Captain Rinnan was asked by Australian authorities to head back to

Indonesia. The owners of the vessel then instructed James Neill, a solicitor, to act on their

behalf and that of the Master. The Captain's position, as expressed by the solicitor in a fax

sent the next day to the Department of Immigration and Multicultural Affairs (DIMA), was

that if he sailed to Indonesia he would expose the vessel and those on board to a number of

dangers in the open ocean which could have resulted in massive loss of life. In his view, the

safest course was to continue for Christmas Island. The solicitor also made the point that the

vessel did not have food and water on board to sustain the passengers and crew for long. The

vessel, he said, was then lying offshore in good weather waiting for instruction and assistance

for discharge of the passengers into lighters.

133 On Monday, 27 August, the Cabinet Office asked Bill Taylor, the Administrator of

Christmas Island, to ensure that no Australian vessel went out to the MV Tampa from the

Island. Mr Taylor was told that Cabinet was considering the issue. He was asked to ensure

that boats from Christmas Island did not attempt to reach the vessel. The Christmas Island

port at Flying Fish Cove was closed. The Harbour Master signed an order prohibiting "all

boat movements in and out of the Cove". Copies were placed on either side of the jetty.

Barriers were erected at the end of the jetty and the public and local authorities on Christmas

Island were notified in various ways of the closure of the port. The Administrator advised

DIMA of what had been done. What had been done was done in reliance upon the Harbour

Master's powers under s 5 of the Shipping and Pilotage Act 1967 (WA) which applies in the

Territory. There has been no challenge to the lawfulness of that closure.

134 Neville Nixon, an officer of DIMA, spoke by phone to Captain Rinnan. On the same

day, Phillippa Godwin, First Assistant Secretary Detention Task Force of DIMA, sent a

memo to the Captain as follows:

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"This is to confirm your recent telephone conversation with Neville Nixon,DIMA. As Mr Nixon advised, the Australian Government at the highest levelformally requests that you not approach Christmas Island and that you standoff at a distance at least equal to your current position - 13.5 nautical milesfrom the island.

Mr Nixon has advised that you have agreed not to proceed further untiladvised by the Australian Government.

The same message has been relayed by me to James Neal (sic) your shippingagent. He has indicated that he will seek to convey this same message to youand has indicated his expectation of your cooperation to the maximum extentpossible."

135 Mr Neill spoke to Ms Godwin at 11.30am. He confirmed their conversation in a fax

that day in the following way:

"As discussed at approx 11.30 today the medical situation on board is critical.If it is not addressed immediately people will die shortly.

At this time, four people on board are unconscious, 1 Broken leg and 3women are pregnant. Additionally diarrhoea is severe and a number ofpeople are in a dangerously dehydrated condition. The ship has now run outof the relevant medical supplies and has no way of feeding these people.

It is a simple matter to send a boat from shore to collect the sickest people,supply food and medical assistance. It could be along side in 30 minutes.

At the request of the Australian Government the vessel is currently just offshore of Christmas Island. If the situation is not resolved soon more drasticaction, may have to be taken to prevent loss of life." [bold in original]

136 Captain Rinnan contacted the Royal Flying Doctor Service and reported that several

of the rescuees were unconscious, that one had a broken leg and that two pregnant women

were suffering pains. The Service did not regard the situation as requiring evacuation.

Captain Rinnan was concerned however, at the deterioration in the condition of the rescuees

and about the welfare of his crew. Because of his concerns he took the MV Tampa into

Australian territorial waters at about 9am on 29 August and stopped about four nautical miles

from Christmas Island. Within about two hours, forty five Special Armed Services (SAS)

troops from the Australian Defence Force left Christmas Island and boarded the MV Tampa.

137 The next day, 30 August, the Norwegian ambassador visited the MV Tampa where he

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was handed a letter signed "Afghan Refugees Now off the coast of Christmas Island". It

stated, in part, as follows:

"You know well about the long time war and its tragic human consequences,and you know about the genocide and massacres going on in our country andthousands of innocent men, women and children were put in public grieveyards (sic), and we hope you understand that keeping view of abovementionedreasons we have no way but to run out of our dear homeland and to seek apeaceful asylum. And untill (sic) now so many miserable refugees have beenseeking asylum in so many countries. In this regard before this Australia hastaken some real appreciable initiatives and has given asylum to a highnumber of refugees from our miserable people. This is why we are whole-heartedly and sincerely thankful to you.

We hope you do not forget that we are also from the same miserable andoppressed refugees and now sailing around Christmas Island insideAustralian boundaries waiting permit to enter your country.

But your delay while we are in the worst conditions has hurt our feelings. Wedo not know why we have not been regarded as refugees and deprived fromrights of refugees according to International Convention (1951).

We request from Australian authorities and people, at first not to deprive usfrom the rights that all refugees enjoy in your country. And in the case ofrejection due to not having anywhere to live on the earth and every momentdeath is threatening us. We request you to take mercy on the life of (438)men, women and children."

138 The events involving the MV Tampa were by this time the subject of publicity in the

media and public discussion. A Melbourne-based organisation, The Public Interest Law

Clearing House, attempted, through a solicitor, to communicate with the MV Tampa to obtain

authority from one of the rescuees to bring an application for a writ of habeas corpus. This

attempt failed when the owners declined to co-operate in passing on a message to the

rescuees.

139 Another Melbourne solicitor, Eric Vadarlis, rang Captain Rinnan on 31 August and

asked that he allow him to make contact with the rescuees. He was referred to the Owner's

office in Oslo, which he rang. He was advised at 1.50pm that the management had decided

that it would not authorise the Captain to allow him to speak to the rescuees. He wrote to the

Minister for Immigration and Multicultural Affairs on the same day requesting that the

persons on the ship who might wish to exercise their rights under s 256 of the Migration Act

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1958 (Cth) be given the opportunity to do so, in particular by those persons being given

access to himself. He received no reply.

140 On the same day, 31 August 2001, between 5pm and 5.30pm, the Victorian Council

for Civil Liberties Inc (VCCL) and Mr Vadarlis filed applications in the Court. The grounds

of the VCCL application was as follows:

" On the grounds appearing in the affidavits of Emma-Louise Hunt, PhilipLynch and Danielle Anne Williams-Brennan all sworn 31 August 2001 andfiled herein, the Applicant claims:

1. The Respondents bring before the Court the detainees referred to inthe said affidavits and presently aboard the MV Tampa, to be dealtwith according to law.

2. An order in the nature of mandamus to compel the First Respondents:

(a) To bring the detainees into a migration zone; (b) To inform the detainees of their rights under s 194 of the

Migration Act; (c) To receive and deal with the applications of the detainees for

protection visas under section 45 of the Migration Act.

3. Such further and other orders, directions or relief as to thisHonourable Court seems fit.

B. CLAIM FOR INTERLOCUTORY RELIEF

AND the applicant claims by way of interlocutory relief orders as follows:

4. The Respondents do show cause why an order in the nature of a writ ofhabeas corpus should not issue out of this Court directed to them,requiring them to bring before the Court the detainees aboard thevessel Tampa, to be dealt with according to law;

5. An injunction restraining the Respondents from removing the MVTampa from Australian territorial waters unless they first permit thedetainees to disembark at an Australian port."

141 The application named as respondents the Minister for Immigration and Multicultural

Affairs, the Attorney-General, the Minister of Defence and the Commonwealth. The source

of jurisdiction was not stated although the heading of the application made reference to ss 22

and 23 of the Federal Court of Australia Act 1976 and ss 47, 194 and 245F of the Migration

Act.

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142 The Vadarlis application invokes the jurisdiction of the Court under s 39B of the

Judiciary Act 1903 (Cth). It named as respondents the Minister for Immigration and

Multicultural Affairs, the Commonwealth and William Farmer, the Secretary and Chief

Executive Officer of the Department of Immigration and Multicultural Affairs. The

application claimed injunctions, mandamus, declaratory relief and:

"A writ of habeas corpus directed to the Respondents commanding them torelease the rescuees from custody."

143 At 9pm on 31 August, North J made an interlocutory order restraining the

Commonwealth, the Minister and Mr Farmer, until the following day, from taking any steps

to remove the MV Tampa from Australian waters. Applications for ex parte interlocutory

relief were adjourned until the following day at 11am. On that day, the Solicitor-General, Mr

Bennett QC, read to the Court an announcement which had just been made by the Prime

Minister. The announcement stated:

"I am announcing today that we have reached agreement with theGovernments of New Zealand and Nauru for the processing of the peoplerescued by the MV Tampa.

Under the terms of the agreement, the rescuees will be conveyed to Nauru andNew Zealand for initial processing.

New Zealand has agreed to process 150 of those aboard the Tampa. It isenvisaged that this will include family groups involving women and children.Those found to be genuine refugees in New Zealand would remain there.

The remainder of the rescuees will be assessed in Nauru and those assessedas having valid claims from Nauru would have access to Australia and othercountries willing to share in the settlement of those with valid claims.

Australia will bear the full cost of Nauru's involvement in this exercise.

Arrangements will be made to safely transship the rescuees through a thirdcountry. We are currently in discussions with appropriate countries to effectthis.

We are also working closely with the International Organisation forMigration and the UNHCR to ensure that these arrangements are managedcarefully and that the rescuees receive appropriate counselling andassistance.

Australia will continue to ensure that the rescuees receive all necessaryhumanitarian assistance while these arrangements are put in place.

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I would like to take this opportunity to express my Government's gratitude tothe Governments of Nauru and New Zealand for their ready and constructivehumanitarian assistance.

1 September 2001" (AB99)

The arrangements, described in the announcement, will be referred to herein as the

"Nauru/NZ arrangements".

144 Because the Commonwealth wanted to commence implementing the Nauru/NZ

arrangements as soon as possible; and at the request of the parties, his Honour proceeded to a

final hearing of the applications which commenced on Sunday, 2 September 2001. He did so

having made directions for pre-trial discovery and other directions relating to witnesses.

145 An interlocutory mediation process led to an agreement on 3 September between the

parties so that the Nauru/NZ arrangements could be implemented without delay but without

prejudice to the rights of the parties in the proceedings. The agreement, which was read into

the transcript, was in the following terms:

"1. The interlocutory injunction is to be discharged.

2. No application is to be made for an undertaking as to damages inrelation to the undertaking and other terms of this agreement.

3. The rescuees presently on board the MV Tampa will be transferred tothe HMAS Manoora.

4. The Respondents undertake that:

4.1 None of the rescuees will be required to leave HMAS Manooraor removed from it until the determination of the proceedingsbefore North J and any appeal by the Respondents to the FullFederal Court.

4.1A Clause 4.1 shall not prevent any of the rescuees who it isintended to charge with an offence being arrested and broughtto any part of Australia or Christmas Island.

4.2 Notwithstanding 4.1 the Respondents or any of them may, ifany of the rescuees so request, remove any such rescuee orpermit him or her to leave for the purpose of transportation toany country requested by such rescuee and agreed to by theRespondents or any of them.

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4.3 If the Respondents are unsuccessful in these proceedings and ifthe Court makes an order for the return of any or all of therescuees to Australia (other than rescuees referred to inparagraph 4.2), the Respondents will comply with any suchorder.

4.4 In the event that the Respondents are unsuccessful in anyappeal to the Full Court of the Federal Court and seek leave toappeal to the High Court of Australia, they are at liberty toapply for a stay of the order on such terms as may be agreed ordetermined by the court to which the application is made.

5. The Third Respondent agrees that the general effect of this Agreementwill be made known to the rescuees.

6. The parties agree that this litigation, and any appeal flowing from it,will be conducted, on the basis of the evidence given at the trialincluding the agreed facts and that no party will seek relief or assertrights or legal consequences on the basis that the status of any allegeddetention of the rescuees on HMAS Manoora is different to the statusof any alleged detention on the MV Tampa.

7. The terms of this agreement are accepted by HREOC [Human Rightsand Equal Opportunity Commission].

8. All parties will oppose intervention by any party not willing to bebound by the terms of this agreement (or in the case of HREOC, anyparty not willing to be bound by the terms of clause 6 of thisagreement)."

146 The agreement having been made, the rescuees were transferred from the MV Tampa

to the naval vessel, HMAS Manoora. The Manoora then began to travel to Papua New

Guinea under an agreement made between the Australian government and the government of

Papua New Guinea for transhipment of the rescuees to Port Moresby and then by aircraft to

Nauru and New Zealand. It was not in dispute that Manoora is an amphibious troop ship with

extensive medical facilities on board, including two operating theatres.

147 The final hearing before his Honour continued until 5 September. His Honour

reserved his decision and on 11 September delivered judgment.

The Primary Judge's Orders

148 The orders made by his Honour were in the following terms:

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"1. Subject to paragraph 2, the respondents release those persons rescuedat sea who were brought on board MV Tampa on or about 26 August2001 and who were then transferred to HMAS Manoora on or about 3September 2001, and bring those persons ashore to a place on themainland of Australia.

2. Paragraph 1 operates from 5.00pm Australian Eastern Standard Timeon 14 September 2001, or on the determination of any appeal from thisdecision to the Full Court of the Federal Court of Australia, whicheveris later.

3. Paragraph 1 does not apply in respect of any of the said persons whoindicate to the respondents that they do not wish to be released andbrought ashore to a place on the mainland of Australia.

4. Liberty is granted to the parties to apply generally as to theimplementation of the orders made in paragraph 1.

5 (a) Subject to (c) hereof the respondents are to pay to each of theapplicants the costs of and incidental to the proceedingcommenced by that applicant; and

(b) Subject to (c) hereof the respondents are to pay to AmnestyInternational Limited and the Human Rights and EqualOpportunity Commission their costs of and incidental to theseproceedings; and

(c) Liberty is granted to the respondents to apply by 4.15pm on 13September 2001 to vary the orders made in subparagraph (a)and (b) hereof. "

Amnesty International and HREOC had been given leave by his Honour to intervene in the

proceedings.

149 Appeals were instituted against his Honour's orders on the same day and a Full Court

convened to hear the appeal on 13 September.

The Trial Judge's Decision

150 The factual background already set out is derived from the findings of fact made by

his Honour and the history of proceedings set out in his Honour's reasons for judgment. It

should be noted, however, that the parties agreed a statement of facts which was received in

evidence and which was in the following terms:

"1. The MV Tampa ("the ship") rescued certain persons ("the rescuees")on the High Seas.

2. The rescuees boarded the Ship voluntarily.

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3. The Ship commenced proceeding towards an Indonesian port. Certainof the rescuees objected to this course and threatened to commitsuicide whereupon the master altered course at their request forChristmas Island.

4. The Ship was refused permission to enter Australian TerritorialWaters.

5. Nevertheless it did so. It is in Australian Territorial Waters but not ina port and therefore not in the Migration Zone.

6. There are 433 rescuees on board the ship, anchored about 4 nauticalmiles off Christmas Island and outside the port. They are not part ofthe crew of the MV Tampa.

7. The rescuees were picked up by the MV Tampa at the request of theAustralian authorities.

8. They are not allowed to leave the ship except to leave Australianterritorial waters. The Ship is free to leave Australian territorialwaters.

9. No other vessels are permitted to approach the ship without theauthorisation of the Commonwealth, whether through the SAS officerson board or otherwise who would refuse permission unless it was forthe purpose of moving the rescuees out of Australian territorial watersand then subject to safety considerations and satisfaction of a bonafide intention not to move them to Australia.

10. Their movements on the ship are controlled by SAS officers and not bythe Captain of the ship

11. SAS officers boarded the ship because it contained unlawful non-citizens who did not hold visas to enter Australia. The officersincluded by (sic) SAS medical personnel whose purpose was to rendermedical and humanitarian assistance in response to a distress signal.Part of the purpose was to provide security for the crew. Another partof the purpose was to deal with any medical emergencies and thusremove the basis for the distress signal and facilitate the departure ofthe ship from Australian Waters.

12. The ship has been forbidden by Australian authorities from proceedingany closer to Christmas Island and from entering the port. Thus farthat instruction has been obeyed. The effect of the continuing presenceof the SAS officers is that the captain and crew are unlikely to attemptto move the ship into the port. This is a consequence desired by theAustralian Government.

14. None of the asylum seekers hold a visa entitling them to enter

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Australia. Therefore they would be unlawful non-citizens for thepurposes of s 14 of the Migration Act if they entered the "migrationzone" as that phrase is defined in s 5 of the Migration Act.

15. The evidence justifies an inference that many of the rescuees would, ifentitled, wish to apply for protection visas, and would wish to leave theship and enter Australia.

16. The rescuees have no access to communications with persons off theship and persons off the ship are unable to communicate with them."[numbering incorrect in original]

It is, and at all relevant times has been, the view of the Captain of theTampa that he will not sail the Tampa out of Australian territorialwaters while the rescuees are on board."

151 His Honour summarised the arguments of the VCCL and Vadarlis thus:

"45 The order for release argument. On the basis that the Act does notapply to the situation of the rescuees, the applicants claim that the rescueeswere detained by the respondents on board the MV Tampa without any legalauthority. The applicants asked the Court to order the respondents to releasethe rescuees. The respondents agree that the Act does not apply to thesituation of the rescuees, and also that an order for release would be made ifthe rescuees were detained without lawful authority. However, therespondents contended that the rescuees were not detained by therespondents, but were free to go anywhere other than Australia.

46 The power to expel argument. Again on the basis that the Act does notapply to rescuees the applicants claim that the respondents have no lawfulauthority to expel the rescuees from Australia. They contend that the Courtshould grant an injunction restraining the respondents from expelling therescuees from Australia. This argument raises the question of the applicants'standing to seek such relief.

47 The section 245F argument. The applicants claim that s 245F(9) of theAct [see statutory framework below] applies to the situation of the rescueesand requires the respondents to bring them to the mainland of Australia.They seek mandamus to compel the respondents to perform that statutoryduty. The respondents contended that the Act does not apply to the situationof the rescuees, and, in any event, the applicants do not have standing to bringthe claim.

48. The section 189 argument. Mr Vadarlis claims that s 189 of the Act [seestatutory framework below] applies to the situation of the rescuees andrequires the respondents to take the rescuees into detention. He seeksmandamus to compel the performance by the respondents of this duty. Againthe respondents argued, amongst other matters, that the Act does not apply tothe situation of the rescuees, and, in any event, the applicants do not have

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standing to bring the claim.

49. The freedom of communication argument. Mr Vadarlis argued that therespondents had prevented him from communicating with the rescuees andhad thereby denied him his implied constitutional freedom of communication.He seeks an injunction and mandamus to allow him to give legal advice to therescuees."

152 His Honour found, fatally to the claim for relief based upon ss 245F and 189 of the

Migration Act, that VCCL and Vadarlis lacked standing to seek the injunctive orders and

mandamus which they claimed. He so held on the basis of the decisions of the High Court in

Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR

493 and Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit

Fund Pty Ltd (1998) 194 CLR 247. He found it unnecessary to come to a final view on

Vadarlis' argument based on the implied freedom of political communication. His Honour

did, however, find for VCCL and Vadarlis on their claims for habeas corpus.

153 The essential steps in his Honour's reasoning were as follows:

1. The Court had jurisdiction to make an order in the nature of a writ of habeas corpus

and that jurisdiction was not disputed.

2. VCCL and Vadarlis had standing to seek the remedy of habeas corpus and that

standing was not disputed. His Honour referred to Waters v The Commonwealth

(1951) 82 CLR 188 at 190; Truth About Motorways Pty Ltd v Macquarie

Infrastructure Investment Management Ltd (2000) 200 CLR 591.

3. There was a total restraint on the freedom of the rescuees. His Honour summarised

his view of their situation thus:

"In my view the evidence of the respondents' actions in the week following 26August demonstrate that they were committed to retaining control of the fateof the rescuees in all respects. The respondents directed where the MVTampa was allowed to go and not to go. They procured the closing of theharbour so that the rescuees would be isolated. They did not allowcommunication with the rescuees. They did not consult with them about thearrangements being made for their physical relocation or future plans. Afterthe arrangements were made the fact was announced to them, apparently notin their native language, but no effort was made to determine whether therescuees desired to accept the arrangements. The respondents took tothemselves the complete control over the bodies and destinies of the rescuees.

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The extent of the control is underscored by the fact that when thearrangements were made with Nauru there had been no decision as to whowas to process the asylum applications there or under what legal regime theywere to be processed. Where complete control over people and their destinyis exercised by others it cannot be said that the opportunity offered by thoseothers is a reasonable escape from the custody in which they were held. Thecustody simply continues in the form chosen by those detaining the peoplerestrained."

4. As far as the Commonwealth was concerned, the rescuees were free to go anywhere

other than Australia and were only partially restrained.

5. The circumstances of the rescuees when viewed in their totality could not adequately

be described as self-inflicted as the Commonwealth had submitted.

6. There were no real avenues of escape for the rescuees from the MV Tampa. There

was no evidence that anybody was prepared to take them off the vessel and the

chances of such an offer were limited given their large numbers and the closure of the

nearest port. They could not leave on the MV Tampa as the Captain would not sail

out of Australian waters while they were still on board. As to the Nauru/NZ option

they had not been consulted about it. There was no evidence that the Prime Minister's

statement had been read to them in languages they could understand. No selection

had been made of who was to go to Nauru and who was to go to New Zealand. In

assessing whether there was a reasonable means of egress, a relevant matter was their

knowledge of any such recourse. The presence of the SAS troops, armed and in

combat fatigues, was likely to have led the rescuees to the conclusion that they were

bound to do as they were told. SAS troops controlled their movements on board the

Tampa.

154 Having concluded that there was a total restraint on the freedom of the rescuees, his

Honour referred to the decision of the US Supreme Court in Jones v Cunningham 371 US

236 (1963) at 243. He elicited from it and from textbook commentary the proposition that:

"…the test whether a person is detained for the purpose of habeas corpus iswhether the restraint imposed is one that is not shared by the publicgenerally."

If that test were applied in the case before him, the VCCL and Vadarlis would be entitled to

an order for release of the rescuees. He referred also to Chin Yow v United States 208 US 8

(1907), in which he said the facts were similar to the case before him.

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155 His Honour considered and rejected a contention from the Commonwealth that an

order for release would not be available in the case before him because it was sought for the

purpose of triggering other rights under the Migration Act. His Honour found that the

purpose of the application was "to obtain the release of the rescuees from the alleged

unlawful detention". (AB41) It was no barrier to the making of an order that the rescuees

would be susceptible to detention under s 189(2) of the Act thereafter.

156 His Honour also rejected a contention that he should decline to grant the relief sought

on discretionary grounds. He rejected an argument that the Court "should not stand in the

way of the exercise by the Executive of its attempt to protect the borders of Australia". He

added that the designation of the place of release which appeared in his orders, was integral

to the remedy of an order for release because the purpose of the detention was to expel the

rescuees from Australia.

157 His Honour then turned to the question whether there was any lawful basis for the

restraint upon the liberty of the rescuees. The Commonwealth relied solely upon what the

Solicitor-General described as the "prerogative power" to expel the rescuees. No reliance

was placed upon any statutory powers under the Migration Act.

158 In his Honour's opinion there was no relevant prerogative power. He relied upon the

decision of the High Court in Chu Kheng Lim v Minister for Immigration, Local Government

and Ethnic Affairs (1992) 176 CLR 1 for the proposition that the deportation of aliens is now

comprehensibly governed by statute. He referred also to an observation by Davies J in Mayer

v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312 at 316:

"…whatever was, at one time, the common law prerogative power of theCrown in this matter, and that clearly was an arguable matter, at the presenttime the law with respect to the entry of persons to Australia and with respectto their expulsion is regulated by statute."

The learned primary judge then said, of the Migration Act:

"The Act contains comprehensive provisions concerning the removal of aliens(ss 198-9). In my view the Act was intended to regulate the whole area ofremoval of aliens. The long title of the Act is "[a]n Act relating to the entryinto, and presence in, Australia of aliens, and the departure or deportationfrom Australia of aliens and certain other persons". It leaves no room for the

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exercise of any prerogative power on the subject: Attorney-General v DeKeyser's Royal Hotel Ltd [1920] AC 508."

The Grounds of Appeal

159 The grounds of the appeal in each case were as follows:

"2(a) The trial Judge erred in holding that the rescuees were detainedaboard the MV Tampa by SAS troops;

(b) The trial Judge erred in holding that the Executive power of the

Commonwealth did not authorise and support the expulsion of therescuees and their detention for that purpose;

(c) The trial judge erred in holding that the effect of the provisions of theMigration Act 1958 was that there was "no reason for the exercise ofany prerogative power" to expel the rescuees and to detain them forthe purpose of expulsion;

(d) The trial judge erred in failing to hold that the true purpose of theapplicants was to bring the rescuees within the migration zone andthat this was not a purpose for which habeas corpus should begranted;

(e) The trial judge erred in making the following findings of fact:

(i) Captain Rinnan decided to change course from Indonesia toAustralia because of threats by five men to jump overboard;

(ii) the rescuees' circumstances were not 'self-inflicted';

(iii) concluding from the agreed facts that Captain Rinnan will notunder any circumstances sail out of Australian waters while therescuees are on board;

(iv) the means of egress by leaving with anybody who would takethe rescuees overseas was not a real option;

(v) that it was not reasonable to expect nor was it a practicalpossibility that the rescuees could leave on the MV Tampa;

(vi) that the communication to the rescuees of the arrangementsbeing made for their physical relocation or future plans was"apparently not in their native language";

(f) The trial judge should have held that the rescuees were not detainedbecause they were at the relevant time able to take advantage of theNauru/New Zealand arrangements;

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(g) The trial judge erred in not finding that Captain Rinnan (who was nota respondent) was detaining the rescuees;

(h) The trial judge erred in making the order numbered 1 against the Firstand Second Respondents in proceeding V899 of 2001 and the First andThird Respondents in proceeding V900 of 2001, there being noevidence that such Respondents were detaining the rescuees at thetime at which the order was made or at any other time;

(i) The trial judge erred in holding that the level of restraint required toorder the release of someone detained was less than close physicalconfinement.

(3) The trial judge erred in ordering the respondents to pay the costs ofthe interveners."

Cross-Appeal

160 VCCL and Vadarlis each filed a cross-appeal in relation to the trial judge's finding on

the question of standing. Each sought a declaration that it had standing to seek the relief

claimed (other than habeas corpus). Vadarlis sought an order remitting the matter to the trial

judge for determination of the question whether he was entitled to the other relief he claimed,

apart from the habeas corpus orders.

161 In the event, each of VCCL and Vadarlis made what were described in the written

outline of their arguments as "formal submissions" on the question, albeit they did not

concede that the position was concluded against them at this level of appeal by the Australian

Conservation Foundation and Bateman Bay decisions in the High Court. The directions

given for the conduct of the appeal in this Court were given on the basis, expressed at a

directions hearing before his Honour the Chief Justice, that these would remain formal

submissions in the sense that they would not be developed and would preserve a position for

argument if the matter were to reach the High Court. For these reasons the Court declined to

allow counsel for Vadarlis to pursue the standing question as a substantive submission on this

appeal - that course being objected to by the Solicitor-General.

Issues on the Appeal

162 The key issues on this appeal are:

1. Whether the executive power of the Commonwealth authorised and supported the

expulsion of the rescuees and their detention for that purpose.

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2. If there was no such executive power, whether the rescuees were subject to a restraint

attributable to the Commonwealth and amenable to habeas corpus.

Before considering these issues it is desirable to set out the relevant statutory frameworks.

Statutory Framework - Judiciary Act 1903 (Cth) and the Federal Court of Australia Act

1976

163 The Judiciary Act confers jurisdiction on the Federal Court in relation to matters

arising under the Constitution and the laws of the Commonwealth thus:

"39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of theFederal Court of Australia includes jurisdiction with respect to any matter inwhich a writ of mandamus or prohibition or an injunction is sought againstan officer or officers of the Commonwealth.

39B(1A) The original jurisdiction of the Federal Court of Australia alsoincludes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration;or

(b) arising under the Constitution, or involving its interpretation; or(c) arising under any laws made by the Parliament, other than a matter in

respect of which a criminal prosecution is instituted or any othercriminal matter. "

164 The powers of the Federal Court in aid of the exercise of its jurisdiction include those

conferred by s 23 of the Federal Court of Australia Act:

"The Court has power, in relation to matters in which it has jurisdiction, tomake orders of such kinds, including interlocutory orders, and to issue, ordirect the issue of, writs of such kinds, as the Court thinks appropriate."

There was no suggestion that the Court lacked jurisdiction to entertain the application for the

writ of habeas corpus, it being directed to the lawfulness of action taken purportedly in

reliance upon the executive power of the Commonwealth under s 61 of the Constitution.

Statutory Framework - Migration Act 1958 (Cth)

165 It is sufficient for present purposes to refer to those provisions of the Act relied upon

by VCCL and Vadarlis as evidencing a legislative intention to exclude the operation of the

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executive power of the Commonwealth or the prerogative in relation to the expulsion of

aliens from Australia and incidental powers.

166 The long title of the Migration Act is:

"An Act relating to the entry into, and presence in, Australia of aliens, and thedeparture or deportation from Australia of aliens and certain other persons."

The objects of the Act are set out in s 4:

"4(1) The object of this Act is to regulate, in the national interest, the cominginto, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizensto enter or remain in Australia and the Parliament intends that this Act be theonly source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealthgovernment can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportationfrom Australia of non-citizens whose presence in Australia is not permitted bythis Act."

Among terms defined in s 5 of the Act are the following:

"detain means:

(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 todo so;"

"enter Australia, in relation to a person, means enter the migration zone;"

"immigration detention means:

(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

(b) being held by, or on behalf of, an officer:

(i) in a detention centre established under this Act; or

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(ii) in a prison or remand centre of the Commonwealth, a State ora 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;"

"migration zone means the area consisting of the States, the Territories,Australian resource installations and Australian sea installations and, toavoid doubt, includes:

(a) land that is part of a State or Territory at mean low water; and(b) sea within the limits of both a State or a Territory and a port; and (c) piers, or similar structures, any part of which is connected to such

land or to ground under such sea;

but does not include sea within the limits of a State or a Territory but not in aport;"

"non-citizen means a person who is not an Australian citizen;"

"officer means:

(a) an officer of the Department, other than an officer specified by theMinister in writing for the purposes of this paragraph; or

(b) a person who is an officer for the purposes of the Customs Act 1901,other than such an officer specified by the Minister in writing for thepurposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of theAustralian Protective Service Act 1987, other than such a personspecified by the Minister in writing for the purposes of this paragraph;or

(d) a member of the Australian Federal Police or of the police force of aState or an internal Territory; or

(e) a member of the police force of an external Territory; or(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 this Act, including aperson who becomes a member of the class after the authorisation isgiven."

"port means:

(a) a proclaimed port; or(b) a proclaimed airport;"

"unlawful non-citizen has the meaning given by section 14;"

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167 Section 6, as a matter of abundant caution, preserves the operation of the Act in parts

of Australia outside the migration zone thus:

"6. To avoid doubt, although subsection 5(1) limits, for the purposes of thisAct, the meanings of "enter Australia", "leave Australia" and "remain inAustralia" and as well, because of section 18A of the Acts Interpretation Act1901, the meaning of parts of speech and grammatical forms of those phrases,this does not mean:

(a) that, for those purposes, the meaning of "in Australia", "to Australia"or any other phrase is limited; or

(b) that this Act does not extend to parts of Australia outside the migrationzone; or

(c) that this Act does not apply to persons in those parts."

The Act is extended to the territory of Christmas Island which is deemed to be part of

Australia for the purposes of the Act and not a place outside Australia (s 7).

168 The term "unlawful non-citizen" is defined in s 14:

"14(1) A non-citizen in the migration zone who is not a lawful non-citizen isan unlawful non-citizen.

(2) To avoid doubt, a non-citizen in the migration zone who, immediatelybefore 1 September 1994, was an illegal entrant within the meaning of theMigration Act as in force then became, on that date, an unlawful non-citizen."

A "lawful non-citizen" is one who is in the migration zone and holds a visa that is in effect

(s13).

169 Provision is made for non-citizens to enter Australia by way of the grant of a visa (s

29). General provisions relating to visas are found in Part 2, Division 3 of the Act. These

include protection visas (s 36). A criterion, ie a necessary condition for the grant of a

protection visa is that the applicant is:

"…a non-citizen in Australia to whom Australia has protection obligationsunder the Refugees Convention as amended by the Refugees Protocol."

170 Division 6 of Part 2 of the Act provides for certain non-citizens to be kept in

immigration detention until such persons leave Australia or are given visas (s 176). It applies

to people arriving in the migration zone by boat in the territorial sea of Australia between 19

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November 1989 and 1 September 1994 (s 177).

171 Division 7 provides for the detention of unlawful non-citizens. In particular, s 189

provides:

"189(1) If an officer knows or reasonably suspects that a person in themigration zone is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outsidethe migration zone:

(a) is seeking to enter the migration zone; and(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

172 There are procedural rights in ss 194 and 195 whereby detainees must be told of the

consequences of detention (s 194) and, in particular, that they may apply for visas (s 195) and

that the detention is continued until they are removed or deported from Australia or granted a

visa. These procedural rights however do not apply to persons detained under s 189(2) (s

193(1)(c)).

173 Unlawful non-citizens are to be removed from Australia under provisions contained in

Division 8 of Part 2 of the Act (ss 198 and 199). Division 9 relates to deportation of non-

citizens. Division 12 creates offences in relation to the carriage of non-citizens to Australia

without documentation (s 229) and the concealed carriage of unlawful non-citizens (s 230).

Section 232A relates to the bringing into Australia of a group of five or more people.

174 Division 12A contains provisions relating to the pursuit and boarding of ships which

are applicable to Australian territorial waters beyond the migration zone (s 245B to s 245F).

Section 249 of the Act provides:

"249(1) An officer may:

(a) prevent a person whom the officer reasonably suspects to be anunlawful non-citizen from leaving a vessel on which the person arrivedin Australia; or

(b) prevent a remove or deportee from leaving a vessel on which he or shehas been placed;

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and may take such action and use such force as are necessary for thatpurpose.

(1AA) An officer may prevent a person from leaving a vessel on which theperson arrived in Australia if the officer reasonably suspects that the person:

(a) is seeking to enter the migration zone; and(b) would, if in the migration zone, be an unlawful non-citizen.

(1A) To avoid doubt, and without limiting the generality of subsections (1)and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection(1AA) is on board a vessel (other than an aircraft), the actions that may betaken by an officer under subsections (1) and (1AA) include:

(a) requiring the vessel to travel to a port; and (b) requiring the person to remain on the vessel until it arrives at the port.

(2) The master of a vessel may, in relation to persons on board the vessel, doall things which an officer is, under subsections (1) and (1AA), authorized todo."

175 The power to enter and search a vessel extends to the case in which an officer

reasonably suspects that there is on board the vessel "a person seeking to enter the migration

zone who would, if in the migration zone, be an unlawful non-citizen" (s 251(1)(b)(ii)).

The Executive Power of the Commonwealth - Source and General Character

176 The Commonwealth of Australia is constituted by the Commonwealth of Australia

Constitution Act 1900 (s 4). The legislative executive and judicial powers of the

Commonwealth are conferred by the Constitution and not otherwise. The executive power is

provided for in s 61:

"The executive power of the Commonwealth is vested in the Queen and isexercisable by the Governor-General as the Queen's representative, andextends to the execution and maintenance of this Constitution and of the lawsof the Commonwealth."

Section 61 is the primary source of executive power. Its content extends to the execution and

maintenance of the Constitution and the laws of the Commonwealth. It is also limited by

those terms in so far as it will not authorise the Commonwealth to act inconsistently with the

distribution of powers and the limits on power for which the Constitution provides. Nor will

it authorise the Commonwealth to act otherwise than according to the laws of the

Commonwealth. Other provisions of the Constitution vesting powers in the Governor-

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General may be seen as distinct sources of executive power on their specific topics and as

giving content to the power conferred by s 61.

177 At the time of federation and the early years of the Commonwealth it seems to have

been assumed that a number of the common law prerogatives of the Crown such as the power

to declare war, enter treaties or acquire territories, were not subsumed in s 61 but remained

with the Crown to be exercised upon the advice of Imperial Ministers - Zines, The High

Court and the Constitution 4th Edition (1997) at 251. Even so, there was apparent a broad

view of the content of s 61 in the observation of Isaacs J in Farey v Burvett (1916) 21 CLR

433 at 452 that:

"These provisions carry with them the royal war prerogative, and all that thecommon law of England includes in that prerogative so far as it is applicableto Australia."

178 The modern relationship of the power to the prerogatives of the Crown was stated by

Mason J in Barton v The Commonwealth (1974) 131 CLR 477 at 498:

"The Constitution established the Commonwealth of Australia as a politicalentity and brought it into existence as a member of the community of nations.The Constitution conferred upon the Commonwealth power with respect toexternal affairs and, subject perhaps to the Statute of Westminster 1931 andthe Balfour Declaration, entrusted to it the responsibility for the conduct ofthe relationships between Australia and other members of the community ofnations, including the conduct of diplomatic negotiations between Australiaand other countries. By s 61 the executive power of the Commonwealth wasvested in the Crown. It extends to the execution and maintenance of theConstitution and of the laws of the Commonwealth. It enables the Crown toundertake all executive action which is appropriate to the position of theCommonwealth under the Constitution and to the spheres of responsibilityvested in it by the Constitution. It includes the prerogative powers of theCrown, that is, the powers accorded to the Crown by the common law."

179 The use of the "prerogative" to describe such a power may properly acknowledge its

historical antecedents but not adequately illuminate its origins in s 61 of the Constitution. For

it is s 61 that "…confers on the Commonwealth all the prerogative powers of the Crown

except those that are necessarily exercisable by the States under the allocation of

responsibilities made by the Constitution and those denied by the Constitution itself." - Davis

v The Commonwealth (1988) 166 CLR 79 at 93 (Mason CJ, Deane and Gaudron JJ) citing

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The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd ("the Wooltops

case") (1922) 31 CLR 421 at 437-439. As Gummow J said in Re Ditfort; Ex parte Deputy

Commissioner of Taxation (1988) 19 FCR 347 at 369:

"In Australia, … one looks not to the content of the prerogative in Britain, butrather to s 61 of the Constitution, by which the executive power of theCommonwealth was vested in the Crown."

180 The "spheres of responsibility vested in the Crown by the Constitution" and referred

to by Mason J in Barton were described in Davis as "…derived from the distribution of

legislative powers effected by the Constitution itself and from the character and status of the

Commonwealth as a national polity" (at 93). In like vein Brennan J agreed generally with the

observation of Jacobs J in Victoria v The Commonwealth and Hayden ("the AAP case")

(1975) 134 CLR 338 at 406 that the phrase "maintenance of the Constitution" imports the

idea of Australia as a nation. Jacobs J said in the AAP case:

"Within the words "maintenance of this Constitution" appearing in s 61 liesthe idea of Australia as a nation within itself and in its relationship with theexternal world, a nation governed by a system of law in which the powers ofgovernment are divided between a government representative of all the peopleof Australia and a number of governments each representative of the peopleof the various States."

Brennan J saw the phrase as assigning to the Executive government functions relating "not

only to the institutions of government but more generally to the protection and advancement

of the Australian nation" - referring to Burns v Ransley (1949) 79 CLR 101 at 109-110 and

Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-188.

The Executive Power of the Commonwealth - Subject to Parliamentary Control

181 The executive power can be abrogated, modified or regulated by laws of the

Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to

abrogation, modification or regulation by statute. As Lord Denning observed in Laker

Airways Ltd v Department of Trade [1977] 1 QB 643 at 705, it was described by Blackstone,

drawing on Locke's True End of Civil Government, as:

"…the discretionary power of acting in the public good where the positivelaws are silent."

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Lord Denning himself described it as "… a discretionary power exercisable by the executive

government for the public good, in certain spheres of governmental activity for which the law

has made no provision…."

182 The conceptual bases upon which it is said that statute law may abrogate or regulate

the prerogative were variously proposed in Attorney-General v De Keyser's Royal Hotel,

Limited [1920] AC 508. Implied assent by the Crown (526), the futility of concurrent

powers, one regulated and the other not (539), a presumption that the Crown resorts to statute

rather than its unqualified power (554) and simple parliamentary sovereignty (576)

encapsulate the approaches taken by the Law Lords in that case. In the end, however, there

was nothing in their approaches which permitted avoidance of the need to construe the

relevant statute to determine whether, by express words or necessary implication, it has any,

and if so what, operation upon the prerogative power. For it may be as Lord Sumner seemed

to allow that a statute dealing with the same matter as the prerogative power could have as its

object "…to provide an additional mode of attaining the same object" (561). It has been

broadly stated that the royal prerogative ceases to apply to a matter once it has been made the

subject of legislation - Walker v The Queen [1994] 2 AC 36 at 41. That is not to say that any

statute, however confined its effect upon a matter covered by the prerogative is to be taken as

displacing it.

183 The executive power of the Commonwealth under s 61 cannot be treated as a species

of the royal prerogative, "The residue of discretionary or arbitrary authority which at any

given time is legally left in the hands of the Crown." - De Keyser at 526. While the

executive power may derive some of its content by reference to the royal prerogative, it is a

power conferred as part of a negotiated federal compact expressed in a written Constitution

distributing powers between the three arms of government reflected in Chapters I, II and III

of the Constitution and, as to legislative powers, between the polities that comprise the

federation. The power is subject, not only to the limitations as to subject matter that flow

directly from the Constitution but also to the laws of the Commonwealth made under it.

There is no place then for any doctrine that a law made on a particular subject matter is

presumed to displace or regulate the operation of the executive power in respect of that

subject matter. The operation of the law upon the power is a matter of construction.

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184 That construction, while governed ultimately by the terms of the statute under

consideration, is informed by a requirement for a clear intention to displace the power. In

Barton, Barwick CJ used the term "extremely strong", to describe "the rule that the

prerogative of the Crown is not displaced except by a clear and unambiguous provision" -

(488). Mason J referred to the "well accepted" requirement "that a statute will not be held to

abrogate a prerogative of the Crown unless it does so by express words or by implication, that

is, necessary implication" - (at 501 citing De Keyser). McTiernan and Menzies JJ adopted

the same approach (at 491). Jacobs J said that "…an intention to withdraw or curtail a

prerogative power must be clearly shown" - (508). He referred also in that context to the

importance of the right to communicate freely with a foreign state which was the power there

in issue, the case being one about an extra statutory request by Australia for extradition of a

person from Brazil. In Ling v Commonwealth (1994) 51 FCR 88, the Full Court (Gummow,

Lee and Hill JJ) considered the effect of legislation upon the power of the Crown to take an

assignment of a chose in action. They referred to the passages cited above from Barton and,

with approval, to the statement of Street J in Booth v Williams (1909) 9 SR (NSW) 421 at 440

that "it is presumed that the Legislature does not intend to deprive the Crown of any

prerogative right or property unless it expresses its intention to do so in explicit terms or

makes the inference irresistible " (at 92). In Oates v Attorney-General (Cth) (2000) 181

ALR 559, Lindgren J referred to what Barwick J had said in Barton about the requirement for

a clear and unambiguous provision to "displace" the prerogative of the Crown and added:

"…I regard the word "displaced" in this sentence as including the notion ofpartial displacement, that is, confinement, restriction or limitation." (569)

185 The executive power of the Commonwealth covers a wide range of matters, some of

greater importance than others. Some are intimately connected to Australia's status as an

independent, sovereign nation State. The relevance of the importance of the particular power

to the question whether it has been displaced by a statute, appears to have been accepted by

Jacobs J in Barton. The greater the significance of a particular executive power to national

sovereignty, the less likely it is that, absent clear words or inescapable implication, the

parliament would have intended to extinguish the power. In such a case close scrutiny will

be required of any contention that a statute, without express words to that effect, has

displaced the operation of the executive power by virtue of "covering the field" of the subject

matter. Even in De Keyser the possibility was allowed by Lord Sumner that a statute dealing

- 29 -

with a subject matter covered by the prerogative might have as its object the creation of

another way of dealing with the subject which does not displace the prerogative.

The Executive Power - The Gatekeeping Function

186 English courts have long recognised the general proposition of international law that:

"…the supreme power of every state has a right to make laws for the exclusionor expulsion of a foreigner…" - In Re Adam [1837] 1 Moo PC; 12 ER 889

In that case the court recognised a power in the Governor in Council of the Colony of

Mauritius "as the depositaries of the executive authority of the Crown, to remove at pleasure

all aliens not protected by any special privilege" (470). The power of a State under

international law to remove aliens was recognised indirectly by the Privy Council in its

approval of the judgment of Kerferd J in the Full Court of the Supreme Court of Victoria in

Toy v Musgrove (1888) 14 VLR 349 where it was said:

"…it seems beyond question that every nation may exercise the right ofexcluding aliens without giving offence to the country to which those aliensbelong."

See Musgrove v Toy [1891] AC 272. The principle was explicitly recognised by the Privy

Council in Attorney-General for Canada v Cain [1906] AC 542:

"One of the rights possessed by the supreme power in every State is the rightto refuse to permit an alien to enter that State, to annex what conditions itpleases to the permission to enter it, and to expel or deport from the State, atpleasure, even a friendly alien, especially if it considers his presence in theState opposed to its peace, order, and good government, or to its social ormaterial interests." (546)

A State could also do all those things which must be done for the effective exercise of the

power to expel. It is true that the Privy Council was addressing the exercise of legislative

power, being concerned with the question whether the Alien Labour Act of Canada was

invalid for territorial overreach. Their observations however were directed to the incidents of

statehood at international law. The way in which the right to expel or to refuse entry is

exercised, and whether by legislative or executive means, may vary according to the

constitutional mechanisms of particular States.

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187 There is a statement in Forsyth's Cases and Opinions on Constitutional Law, Steven

and Haynes (1869) p 181 that:

"…the Crown has no power by its prerogative alone, to send anyone, whetherhe be a subject or an alien compulsorily out of the realm."

In the same passage in which this was stated the learned author said that Lord Ellenborough

CJ had contended in debate in the House of Lords in 1816 on the Aliens Bill that at common

law the Crown had the right by the royal prerogative to send all aliens out of the kingdom.

But this, according to the writer, was "certainly not the law of England". No authority was

referred to by Forsyth in support of the argument beyond the fact that alien acts had been

passed from time to time in order to give analogous statutory power to the Executive.

188 A contention that the Governor of the Colony of New South Wales had power

independent of statute to exclude foreigners from the colony was rejected by the Full Court

of the Supreme Court of New South Wales in Ex parte Lo Pak (1888) 9 NSWR 221. There a

Chinese subject with a statutory right of residence in New South Wales returned to the colony

after a nine month visit to China. He returned on the British steamship "Afghan" but was

prevented by police, under direction of the Governor, from disembarking at Sydney harbour.

He applied for and was granted habeas corpus. All three of the judges rejected, albeit obiter,

the submission that the Governor of the Colony possessed a prerogative power to exclude

foreigners (at 237 per the Chief Justice, 244 per Windeyer J, 248 per Foster J). The Chief

Justice doubted whether the British Crown had such power but:

"…even supposing the King or Queen of England have power byproclamation to prevent aliens from entering the kingdom, and a statute to beunnecessary, yet that power so vested is a power personal to the Sovereign,and cannot be delegated either to the Governor, or to the Government of thiscolony." (238)

Windeyer J accepted that the Executive Government would have power "to exclude

foreigners from landing if they come infected with disease, or in such vast and overwhelming

numbers as really to threaten danger to our liberties, though they should come in peaceful

guise". It was enough to say however, that there were "not half a million of Chinese waiting

to be landed, and no impending danger to the country [was] shewn upon the affidavits."

(243)

- 31 -

189 A similar application for habeas corpus was made and succeeded in Ex parte Leong

Kum (1888) 9 NSWR 254. The Chief Justice in that case expressed more fully his view that

the colony lacked the power of a sovereign State to exclude foreigners (255-256). See also

Windeyer J at 261-262 and 265.

190 It is to be noted that in relation to each of these cases the executive order appeared to

have been made contrary to a statute under which there was at least an implied permission to

Chinese immigrants to enter the colony - see the discussion by Innes J in Ex parte Leong

Kum at 267-268. These cases, although, like Forsyth, adverting to the absence of any

relevant exercise of exclusionary prerogative power by the British Crown, turned upon the

existence of a statutory permission to enter the colony and, albeit obiter, the fact that the

colony was not a sovereign nation.

191 The scope of the executive power conferred by s 61 of the Constitution is to be

measured by reference to Australia's status as a sovereign nation and by reference to the

terms of the Constitution itself. The effect of the statute law, in this case the Migration Act,

will be considered separately.

192 It is not necessary for present purposes to consider the full content of executive

power and the extent to which it may operate upon the subject matter of the heads of

Commonwealth legislative power. Given that the legislative powers conferred by s 51 are

concurrent with those of the States, subject to the paramountcy of Commonwealth statutes,

(covering cl 5 and s 109) it could not be said that, absent statutory authority, executive power

may be exercised in relation to all those matters. There are legislative powers however which

may be seen as central to the expression of Australia's status and sovereignty as a nation.

They include the powers to make laws with respect to naturalisation and aliens (s 51(xix)),

immigration and emigration (s 51(xxvii)) and the influx of criminals (s 51(xxviii)).

Australia's status as a sovereign nation is reflected in its power to determine who may come

into its territory and who may not and who shall be admitted into the Australian community

and who shall not. That power may also be linked to the foundation of the Constitution in

popular sovereignty implied in the agreement of the "people" of the pre-federation colonies

"to unite in one indissoluble federal Commonwealth". It may be said that the people, through

the structures of representative democracy for which the Constitution provides, including an

Executive responsible to the Parliament, may determine who will or will not enter Australia.

- 32 -

These powers may be exercised for good reasons or bad. That debate, however, is not one for

this Court to enter.

193 In my opinion, the executive power of the Commonwealth, absent statutory

extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens

and to do such things as are necessary to effect such exclusion. This does not involve any

conclusion about whether the Executive would, in the absence of statutory authority, have a

power to expel non-citizens other than as an incident of the power to exclude. The power to

determine who may come into Australia is so central to its sovereignty that it is not to be

supposed that the Government of the nation would lack under the power conferred upon it

directly by the Constitution, the ability to prevent people not part of the Australia community,

from entering.

194 The Australian case law does not resolve the question before this Court. Robtelmes v

Brenan (1906) 4 CLR 395 was concerned with the validity of a Commonwealth Act, the

Pacific Islands Labourers Act 1901, providing for the deportation of unemployed Pacific

Islanders, albeit they may have been brought into Australia under the Pacific Island

Immigration Act (Qd). The general propositions in Attorney-General for Canada v Cain

were adopted (400 Griffith CJ; 413-414 Barton J; 419 O'Connor J). It was accepted that the

power to exclude aliens includes the power to deport them. It was not necessary for the Court

to consider whether the Executive would have such a power absent statutory authority.

Griffiths CJ doubted "…whether the Executive authority of Australia, or of any State, could

deport an alien except under conditions authorized by some Statute…" but found it "not

necessary to discuss that question now" (403). Barton J observed that:

"Whether expulsion in Great Britain or in one of her self-governing Coloniesor States, requires statutory authority has, no doubt, been the subject of somehesitation on the part of eminent lawyers, but it is not necessary for us todecide that question. It does not arise." (414)

He did refer, however, to the comment in the Encyclopaedia of the Laws of England, vol 5 p

268 which mentioned dicta of Blackstone (1 Com 366) and Chitty (Pleas of Crown ed 1820 p

49) to the effect that the Crown by its prerogative could expel even alien friends but that there

did not seem to have been any attempt since the Revolution to exercise such prerogative. The

"extrusion of alien friends has since then always been effected by statutory authority."

- 33 -

195 It has been said that the common law of Australia knows no lettre de cachet or

executive warrant pursuant to which either citizen or alien can be deprived of his freedom by

mere administrative decision or action - Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at

528 (Deane J) and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic

Affairs at 19 (Brennan, Dawson and Deane JJ). Those observations were made in the context

of cases about the surrender of a resident of Australia to another country (Bolton; Ex Parte

Beane) and the validity of statutory provisions for the detention of unlawful non-citizens who

arrived in Australia as boat people between November 1989 and December 1992 (Chu Kheng

Lim).

196 Reliance was placed upon the observation by Davies J in Mayer v Minister for

Immigration and Ethnic Affairs at 316 that whatever may have been the common law

prerogative of the Crown "…at the present time the law with respect to the entry of persons to

Australia and with respect to their expulsion is regulated by statute".

197 The reference to the common law of Australia in Beane and Lim and to the common

law prerogative of the Crown in Mayer do not deal with the question whether, absent

statutory authorisation, s 61 of the Constitution confers upon the Executive a power to

exclude or prevent the entry of a non-citizen to Australia and powers incidental thereto. In

my opinion, absent statutory authority, there is such a power at least to prevent entry to

Australia. It is not necessary, for present purposes, to consider its full extent. It may be that,

like the power to make laws with respect to defence, it will vary according to circumstances.

Absent statutory abrogation it would be sufficient to authorise the barring of entry by

preventing a vessel from docking at an Australian port and adopting the means necessary to

achieve that result. Absent statutory authority, it would extend to a power to restrain a person

or boat from proceeding into Australia or compelling it to leave.

198 The question for determination now is whether, if such power exists absent statute, it

has been abrogated by the Migration Act.

Whether the Executive Power to Exclude Aliens is Abrogated by the Migration Act

199 The long title of the Migration Act marks it as a control mechanism for regulating the

entry into Australia of aliens, or non-citizens, as they are now termed. This is apparent from

its sole object set out in s 4(1) "to regulate, in the national interest, the coming into and

- 34 -

presence in, Australia of non-citizens". The other subsections of s 4 relate to what the Act

provides in order "to advance its object". The Act is not therefore concerned to create rights

of entry except in particular circumstances where it establishes machinery for the discharge

of Australia's protection obligations under the Refugee Convention 1951 as amended by the

1967 Protocol. There is no doubt however that the Act provides a comprehensive regime for

preventing unlawful non-citizens from entering into Australia and for their removal from

Australia if they do so enter. It confers substantial powers on the Executive in aid of its

object. These include the powers under Division 12A of Part 2 which relate to the pursuit

and boarding of foreign ships in Australian waters - s 245B(2), s 245C and s 245F.

200 It was submitted for VCCL and Vadarlis that the Act covers the field of unlawful

entry into Australia in a way that manifests an intention to displace any executive power in

relation to the same subject matter. Reliance was placed, in particular, upon ss 198 and 199

providing for the removal of unlawful non-citizens from Australia, ss 200-206, providing for

their deportation and the pursuit and boarding provisions of Division 12A. Reference was

also made to s 189 of the Act. That section authorises officers to "detain" persons who are

within Australia, for example in the territorial waters, but not in the migration zone as defined

where they would be unlawful non-citizens if they were to enter the migration zone. It is a

specific control mechanism and a significant element of it is imported by the use of the word

"detain". That is defined in terms of "immigration detention". That term is itself defined by

reference to "being in the company of, and restrained by" an officer or other authorised

person or being held by, or on behalf of, an officer in one or other of the places referred to in

par (b) of the definition. This may include being held by, or on behalf of, an officer on a

vessel when the non-citizen is prevented under s 249 from leaving the vessel.

201 The question is whether the Act operates to abrogate the executive power under s 61

to prevent aliens from entering into Australia. There are no express words to that effect. It is

necessary then to look to whether by implication it has that effect. It is not necessary for this

purpose either to determine the full extent of the executive power or the full effect of the Act

upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to

deprive the Executive of the power to prevent entry into Australian territorial waters of a

vessel carrying non-citizens apparently intending to land on Australian territory and the

power to prevent such a vessel from proceeding further towards Australian territory and to

prevent non-citizens on it from landing upon Australian territory.

- 35 -

202 In considering what is the implied intention of the Act and in particular the provisions

referred to earlier, it is necessary to have regard not only to the general approach, supported

by authority, to the question whether executive power is taken to be abrogated by statute, but

also the importance to national sovereignty of the particular power in question. In my

opinion the Act, by its creation of facultative provisions, which may yield a like result to the

exercise of executive power, in this particular application of it cannot be taken as intending to

deprive the Executive of the power necessary to do what it has done in this case. The Act

confers power. It does not in the specific area evidence an intention to take it away. The

term "intention" of course is a fiction. What must be asked is whether the Act operates in a

way that is necessarily inconsistent with the subsistence of the executive power described. It

is facultative. Its object is control of entry. Subject to certain specific provisions, such as

those relating to the grant of protection visas, its object is not to confer rights upon non-

citizens seeking to enter Australia. There are of course process rights at various stages of the

visa granting system including those arising under the provisions of Part 8 relating to judicial

review but they do not operate in the circumstances to which the executive power posited for

the purposes of this case applies.

203 Australia has obligations under international law by virtue of treaties to which it is a

party, including the Refugee Convention of 1951 and the 1967 Protocol. Treaties are entered

into by the Executive on behalf of the nation. They do not, except to the extent provided by

statute, become part of the domestic law of Australia. The primary obligation which

Australia has to refugees to whom the Convention applies is the obligation under Article 33

not to expel or return them to the frontiers of territories where their lives or freedoms would

be threatened on account of their race, religion, nationality, or membership of a particular

social group or their political opinions. The question whether all or any of the rescuees are

refugees has not been determined. It is questionable whether entry by the Executive into a

convention thereby fetters the executive power under the Constitution, albeit there may be

consequences in relation to the processes to be applied in the exercise of that power or

relevant statutory powers - Minister of State for Immigration and Ethnic Affairs v Teoh

(1995) 183 CLR 273. In this case, in my opinion, the question is moot because nothing done

by the Executive on the face of it amounts to a breach of Australia's obligations in respect of

non-refoulement under the Refugee Convention.

204 The steps taken in relation to the MV Tampa which had the purpose and effect of

- 36 -

preventing the rescuees from entering the migration zone and arranging for their departure

from Australian territorial waters were within the scope of executive power. The finding

does not involve a judgment about any policy informing the exercise of that power. That is a

matter which has been and continues to be debated in public and indeed international forums.

Through that debate and the parliamentary process the Ministers involved can be held

accountable for their actions. If Parliament is concerned about the existence of an executive

power in this area, deriving from s 61 of the Constitution, it can legislate to exclude it by

clear words. The task of the Court is to decide whether the power exists and whether what

was done was within that power, not whether it was exercised wisely and well.

205 It should be added that the closure of the Christmas Island port itself was done under

statutory authority which was not challenged. The other steps taken by the Commonwealth,

having been taken within the executive power, there is no basis, assuming there was a

relevant restraint on liberty, for the award of the remedy which was granted.

Whether the Rescuees were Subject to a Restraint Attributable to the Commonwealth

and Amenable to Habeas Corpus

206 It was submitted for the Commonwealth that habeas corpus did not lie as the rescuees

were not detained. For a detention to take place the detainer must subject the detainee to a

total restraint of movement. Partial restraint was to be distinguished from detention. To

obstruct a person from going in a particular direction, it was argued, does not constitute

detention. The rescuees were only prevented from going to their preferred destination. That

limited restriction, it was submitted, did not constitute detention given that they were free to

proceed to any other destination. It was contended for VCCL and Vadarlis that "close

custody" is not necessary to attract the remedy of habeas corpus. In the alternative it was

submitted that North J was correct to conclude, as a matter of fact, that the restraint upon the

rescuees was total. I do not accept the argument for the Commonwealth insofar as it may be

taken to suggest that a "total restraint of movement" is necessary to constitute detention

amenable to habeas corpus.

207 There seems to be a variety of views across and within jurisdictions about the level of

restraint on liberty necessary to attract the remedy - see Clark and McCoy, The Most

Fundamental Legal Right - Habeas Corpus in the Commonwealth, Clarendon Press, Oxford

(2000) p 183 et ff. Authorities including Bird v Jones [1845] 7 QB 742; [1845] 115 ER 668

- 37 -

and Syed Mahamad Yusuf-ud-din v Secretary of State for India (1903) 10 TLR 496 were

cited by the Commonwealth. In the first case no action for the tort of false imprisonment

would lie where the plaintiff was prevented from proceeding along a section of public

footway closed off for the spectators of a boat race. But in that case Patterson J (with whom

Coleridge and Williams JJ also agreed albeit publishing separate judgments) allowed that if a

person compels another to stay in any given place against his will he imprisons that other just

as much as if he locked him up in a room. Compelling a person to go in a given direction

against his will could amount to imprisonment. The Privy Council in the second case took

the view that from the time at which a person was released on bail he was not imprisoned for

the purposes of the tort. Burns v Johnston (1916) 2 IR 444 involved a factory worker refused

egress from the workplace under terms and conditions of his employment which provided

that the gate to the workplace would not be unlocked before 6.30pm. He had submitted to

those terms. While the factory owner could not actively prevent him from leaving, he was

not bound to open the gate early to allow him to do so.

208 The false imprisonment cases are of some but limited assistance in considering the

circumstances in which habeas corpus will issue and themselves allow for the possibility of

something less than a complete restraint on liberty as a prerequisite to the tort. Habeas corpus

is concerned with restraints on liberty imposed by a public officer or authority.

209 There are many forms of restraint on liberty that may be imposed under colour of

lawful authority. While "close custody" may have been a condition of the remedy in the past,

it is not a condition that should fetter artificially the function of habeas corpus as a remedy

for unauthorised restraint be it total or partial. There have been cases analogous to the

present in which intending entrants onto a territory, being barred from entry, have been

treated as detained. In Ex parte Lo Pak, Windeyer J said at 247-248:

"It is idle to urge that, because this ship can go anywhere the captain likes totake it, and because the applicant is free to go wherever the ship goes, that heis not imprisoned. What answer is that to this application? Compelling himto stay on board the ship is exactly what the applicant complains of as anillegal restraint upon his liberty."

See also Ex parte Leong Kum at 256-257. In those cases however the applicants were

restrained from going where they were entitled to go and the restraint was held to be

sufficient for the purposes of the writ.

- 38 -

210 United States' cases favour the view that even a partial restraint will attract the writ

albeit they must be read in their constitutional context. Jones v Cunningham concerned a

prisoner on parole held to be "in custody" for the purposes of habeas corpus. The statute

conferring the relevant jurisdiction conditioned it on the applicant being "in custody" - 28

USC 224. The Supreme Court acknowledged that the chief use of habeas corpus had been to

seek the release of a person held in close physical custody. Yet there were cases to which it

referred in England where "the writ was recognised as a proper remedy even though the

restraint was something less than close physical confinement" (238). The court said of the

writ:

"It is not now and never has been a static narrow formalistic remedy; itsscope has grown to achieve its grand purpose - the protection of individualsagainst erosion of their right to be free from wrongful restraints upon theirliberty." (243)

In the end it is necessary to consider whether on the facts of the case there is a restraint on

liberty which is not authorised by law. The relevant liberty is freedom of movement.

211 A public authority may do something in respect of a person which, in combination

with other factors, results in that person's freedom of movement being curtailed. Whether the

authority is thereby to be regarded as imposing the resulting restraint on that person's

freedom of movement for the purposes of the writ may involve a cause and effect analysis. If

the authority's action contributes to the restraint there may then be a policy choice as to

whether the outcome is attributable to the authority for the purposes of habeas corpus.

212 To the extent that the Commonwealth prevented the rescuees from landing on

Australian soil it closed a possible avenue out of a situation in which they had been placed by

other factors. There is nothing to be gained by the use of such perjorative terms as "self-

inflicted". There is a number of circumstances which led the rescuees to find themselves on

board the MV Tampa with, initially at least, no where to go. Unlike the plaintiffs in the Lo

Pak and Leong Kum cases, they had no right to land. The closure of the port itself and the

orders made by the Harbour Master were done under statutory authority and their validity

was not challenged. The act of the Commonwealth in barring the landing of the rescuees in

any event could not, in my opinion, constitute a restraint upon their liberty which was

amenable to habeas corpus.

- 39 -

213 The learned primary judge however has constructed a total restraint upon their

freedom by virtue of the Commonwealth's commitment to retaining control of their fate. He

referred to a constellation of factors which had the result, as he saw it, that the

Commonwealth took "…the complete control over the bodies and destinies of the rescuees."

As to one of those factors the evidence did not appear to support the conclusion that his

Honour reached that the Commonwealth did not allow communication with the rescuees. It

may be accepted that it did not facilitate communications and did not permit third parties to

approach the vessel. Attempts to communicate with the rescuees through the vessel's owners

were unsuccessful because of the attitude of the vessel's owners. The ultimate judgment

made by his Honour was evaluative and weight should be given to his view of the case. In

my opinion, however, the actions of the Commonwealth were properly incidental to

preventing the rescuees from landing in Australian territory where they had no right to go.

Their inability to go elsewhere derived from circumstances which did not come from any

action on the part of the Commonwealth. The presence of SAS troops on board the MV

Tampa did not itself or in combination with other factors constitute a detention. It was

incidental to the objective of preventing a landing and maintaining as well the security of the

ship. It also served the humanitarian purpose of providing medicine and food to the rescuees.

The Nauru/NZ arrangements of themselves provided the only practical exit from the

situation. Those arrangements did not constitute a restraint upon freedom attributable to the

Commonwealth given the fact that the Captain of the Tampa would not sail out of Australia

while the rescuees were on board. In my opinion, taken as a whole, there was no restraint on

their liberty which could be attributed to the Commonwealth.

214 The conceptual difficulty of constructing such a constraint is well illustrated by the

nature of the relief granted by his Honour which could only be made effective by a direction

that the rescuees be brought on to the mainland. His Honour's principal order had two

elements, release of the rescuees and their transportation to mainland Australia. The second

element was ancillary to the primary remedy which was "release". It begs the question

release from what? That in turn raises the question what freedom did the rescuees have

which the Commonwealth, without authority, constrained? It points to the reality that

nothing done by the Commonwealth amounted to a restraint upon their freedom, they having

neither right nor freedom to travel to Australia.

215 In my opinion there was no detention, what was done was within power, the appeals

- 40 -

should be allowed, the orders made by his Honour set aside and the applications before him,

dismissed. The question of costs should be the subject of written submission, particularly

having regard to the public interest which the respondents have sought to advance in bringing

these proceedings.

Postscript

216 The counsel and solicitors acting in the interests of the rescuees in this case have

evidently done so pro bono. They have acted according to the highest ideals of the law.

They have sought to give voices to those who are perforce voiceless and, on their behalf, to

hold the Executive accountable for the lawfulness of its actions. In so doing, even if

ultimately unsuccessful in the litigation they have served the rule of law and so the whole

community.

I certify that the preceding ninety(90) numbered paragraphs are a truecopy of the Reasons for Judgmentherein of the Honourable JusticeFrench .

Associate:


- 41 -

Counsel for the Appellants: Mr DMJ Bennett QC and Mr RRS Tracey QCwith Mr G Hill and Mr D Starr

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the FirstRespondent in V1007 of 2001:

Dr G Griffith QC and Mr JI Fajgenbaum QC with Ms DS Mortimore and Mr C Horn

Solicitor for the FirstRespondent in V1007 of 2001:

Riordan & Partners

Counsel for the First Respondent in V1008 of 2001:

Mr JWK Burnside QC and Mr CM Maxwell QC with Mr JP Manetta

Solicitor for the FirstRespondent in V1008 of 2001

Holding Redlich

Counsel for the SecondRespondent:

Ms K Eastman

Counsel for the ThirdRespondent:

Mr B Zichy-Woinarski QC and Mr GT Pagone QCwith Mr AD Lange

Solicitor for the Third Respondent:

Slater & Gordon

Date of Hearing: 13 September 2001

Date of Orders: 17 September 2001

Date of Judgment: 18 September 2001

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