FEDERAL COURT OF AUSTRALIA

Ruddock v Vadarlis [2001] FCA 1329

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA AND WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED

V 1007 OF 21001

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER OF DEFENCE AND THE COMMONWEALTH OF AUSTRALIA V VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED

V 1008 OF 2001

CORRIGENDUM

The list of appearances at page 91 of the reasons for judgment should be replaced by the following:

Counsel for the Appellants:	Mr DMJ Bennett QC and Mr RRS Tracey QC
	with Mr D Star and Mr G Hill

Solicitor for the Appellants:	Australian Government Solicitor

Counsel for the First Respondent in V1007 of 2001:	Dr G Griffith QC and Mr JI Fajgenbaum QC with Ms DS Mortimer and Mr C Horan

Solicitor for the First Respondent 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 First Respondent in V1008 of 2001	Holding Redlich

Counsel for the Second Respondent:	Ms K Eastman

Counsel for the Third Respondent:	Mr B Zichy-Woinarski QC and Mr GT Pagone QC with 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

Kristie Dunn

Associate to the Chief Justice

20 September 2001

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs & Ors

Eric Vadarlis

V1007/01

Minister for Immigration and Multicultural Affairs & Ors

Victorian Council for Civil Liberties Incorporated & Ors

V 1008 of 2001

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.

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 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.

FEDERAL COURT OF AUSTRALIA

Ruddock v Vadarlis [2001] FCA 1329

CONSTITUTIONAL LAW - executive power of the Commonwealth - common law prerogative of the Crown - relationship - abrogation by statute - principles of construction - no presumption in favour of abrogation - national sovereignty - exclusion of aliens - whether element of executive power - whether abrogated by Migration Act 1958 (Cth) - exclusion of aliens from Australian territory - whether valid exercise 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 enter Australia - whether barring of entry imposes restraint - whether incidental steps to bar entry and remove amount to restraint on liberty - extraneous factors - refusal of ship's captain to depart - whether resulting restraints attributable to Commonwealth - no relevant 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, 256

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1901 (Cth) s 39B

Commonwealth of Australia Constitution Act 1901 s 4, 61

Acts Interpretation Act 1901 (Cth) s 15B

Shipping and Pilotage Act 1967 (WA) s 5

Immigration 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, 4^th ed (1997) at 251

Steven and Haynes, Forsyth's Cases and Opinions on Constitutional Law (1869) at 181

Clark and McCoy, The Most Fundamental Legal Right - Habeas Corpus in the Commonwealth, Clarendon Press, Oxford (2000) 183 et ff

D K Singh 'What cannot be done directly cannot be done indirectly, Part 1', (1959) 32 Australian Law Journal 374; 33 Australian Law Journal 3

HV Evatt, The Royal Prerogative, LBC (1987) at 99

G Winterton, Parliament, the Executive and the Governor General, Melbourne University Press (1983) at 118-9, 120

de Smith, Constitutional and Administrative Law, 3^rd ed (1977) at 11

Markesinis, 'The Royal Prerogative Revisited' [1973] Cambridge Law Journal 287 at 299-305

WF Craies, 'The Right of Aliens to Enter British Territory' (1890) 6 Law Quarterly Review 27 at 27-9, 37.

TW Haycraft, 'Alien Legislation and the Prerogative of the Crown' [1897] Law Quarterly Review 165

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

H Street and R Brazier, Constitutional and Administrative Law, 5^th ed (1985) at 149-150

PH Lane, Lane's Commentary on the Australian Constitution, 2^nd ed (1997) at 439

J 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

Sir James Mackintosh, House of Commons 1816, Debates (Hansard) 10 May 1816, 446-470

The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, Second Reading Speech, Australia, house of Representatives 1999, Debates (Hansard), 22 September 1999, 10147

Ah Yin v Christie (1907) 4 CLR 1428 followed

Amuur v France (1992) 22 EHRR 533 cited

Attorney-General (Canada) v Cain [1906] AC 542 followed

Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508 cited

Australian Communist Party v Commonwealth (1951) 83 CLR 1 referred to

Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493 referred to

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 referred to

Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349 followed

Barton v Commonwealth (1974) 131 CLR 477 cited

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 referred to

Bird v Jones [1845] 7 QB 742 referred to

Booth v Williams (1909) 9 SR (NSW) 421 referred to

Bradley v Commonwealth (1973) 128 CLR 557 cited

British Broadcasting Corporation v Jones [1965] Ch 32 cited

Brown v Lizars (1905) 2 CLR 837 cited

Burma Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 cited

Burns v Ransley (1949) 79 CLR 101 referred to

Burns v Johnston [1916] 2 KB 444 referred to

Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26 followed

Chin Yow v United States 208 US 8 (1907) referred to

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 followed

Chung Teeong Toy v Musgrove (1888) 14 VLR 349 cited

Clarkson v R [1986] VR 464 referred to

Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 referred to

Davis v Commonwealth (1988) 166 CLR 79 cited

Donegani v Donegani III Knapp 63 referred to

Eattes v Dawson (1990) 21 FCR 166 cited

Ex parte Lo Pak (1888) 9 NSWR 221 cited

Ex parte Leong Kum (1888) 9 NSWR 250 cited

Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 cited

Farey v Burvett (1916) 21 CLR 433 referred to

Herd v Weardale Steel, Cole and Coke Company Ltd [1915] AC 67 referred to

Hunkin v Siebert (1934) 51 CLR 538 cited

In Re Adam [1837] 1 Moo PC; 12 ER 889 cited

Johnstone v Pedlar [1921] 2 AC 262 followed

Jones v Cunningham 371 US 236 (1963) referred to

Kioa v West (1985) 159 CLR 550 referred to

Koon Wing Lau v Calwell (1949) 80 CLR 533 followed

Laker Airways Ltd v Department of Trade [1977] 1 QB 643 cited

Ling v Commonwealth (1994) 51 FCR 88 referred to

Liversidge v Anderson [1942] AC 206 applied

Mayer v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312 cited

McGuiness v Attorney-General (Vic) (1940) 83 CLR 73 cited

M'Kendrick v Sinclair 1972 SC (HL) 25 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed

Minister for Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254 referred to

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

Musgrove v Chung Teeong Toy [1891] AC 272 followed

Ng Kwan v Commonwealth (1949) 80 CLR 535 cited

Oates v Attorney-General (Cth) (2001) 181 ALR 559 cited

Phong v Attorney-General for the Commonwealth [2001] FCA 1241 followed

R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 referred to

R v Bottrill; Ex parte Kuechenmeister [1947] 1 KB 41 followed

R v Carter; Ex parte Kisch (1934) 52 CLR 221 followed

R v Home Secretary; Ex parte Khawaja [1984] AC 74 cited

R v Langdon; Ex parte Langdon (1953) 88 CLR 158 referred to

R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 361 cited

Re Bolton; Ex Parte Beane (1987) 162 CLR 514 cited

Re Officer in Charge of Cells ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 followed

Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 cited

Re Esperalta [1987] VR 236 cited

Re Gregory (1899) 25 VLR 539 cited

Robtelmes v Brenan (1906) 4 CLR 395 cited

Shah and Akbarali v Brent London Borough Council [1983] 2 AC 309 followed

Syed Mahamad Yusuf-ud-din v Secretary of State for India (1903) TLR 496 referred to

Somerset v Stewart (1772) 98 ER 499 referred to

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 referred to

Victoria v Commonwealth and Hayden (1975) 134 CLR 338 cited

Walker v R [1994] 2 AC 36 cited

Waters v Commonwealth (1951) 82 CLR 188 referred to

Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 followed

V 1007 OF 21001

V 1008 OF 2001

BLACK CJ, BEAUMONT & FRENCH JJ

18 SEPTEMBER 2001 (ORDERS MADE 17 SEPTEMBER 2001)

MELBOURNE

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, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST APPELLANT

THE COMMONWEALTH OF AUSTRALIA

SECOND APPELLANT

WILLIAM JOHN FARMER

THIRD APPELLANT

AND:

ERIC VADARLIS

FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITED

THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1008 OF 2001

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

BETWEEN:	THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE HONOURABLE DARYL WILLIAMS ATTORNEY-GENERAL SECOND APPELLANT THE HONOURABLE PETER REITH MINISTER OF DEFENCE THIRD APPELLANT THE COMMONWEALTH OF AUSTRALIA FOURTH APPELLANT
AND:	VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD 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.

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, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST APPELLANT

THE COMMONWEALTH OF AUSTRALIA

SECOND APPELLANT

WILLIAM JOHN FARMER

THIRD APPELLANT

AND:

ERIC VADARLIS

FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITED

THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1008 OF 2001

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

BETWEEN:

THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST APPELLANT

THE HONOURABLE DARYL WILLIAMS

ATTORNEY-GENERAL

SECOND APPELLANT

THE HONOURABLE PETER REITH

MINISTER OF DEFENCE

THIRD APPELLANT

THE COMMONWEALTH OF AUSTRALIA

FOURTH APPELLANT

AND:

VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC

FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITED

THIRD RESPONDENT

JUDGES:	BLACK CJ, BEAUMONT & FRENCH JJ
DATE:	18 SEPTEMBER 2001 (ORDERS MADE 17 SEPTEMBER 2001)
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 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