Ruddock v Vadarlis
Encyclopedia
Ruddock v Vadarlis was an important Australia
n court case decided in the Federal Court of Australia
on 18 September 2001. It concerned the actions of the Government of Australia
in preventing asylum seekers aboard the Norwegian
cargo vessel MV Tampa
from entering Australia in late August 2001 (see Tampa affair
). The Victorian Council for Civil Liberties (now Liberty Victoria), and solicitor Eric Vadarlis, were seeking a writ
of habeas corpus
(an order for the asylum seekers to be released). The case is significant because it is one of the few cases to consider the nature and scope of the prerogative power of the executive branch of Government
in Australia.
The concept of prerogative power, often referred to in the United Kingdom
as the Royal Prerogative
, consists of various powers belonging exclusively to the Crown
, such as the power to make treaties
or the power to declare war
. The Royal Prerogative was generally said to derive from the common law
. The prerogative powers are not unlimited, and they can be superseded by statute
, or lost over time through disuse. A statute can completely replace a prerogative power (extinguish it), or it can merely define how decisions should be made, and what factors to consider, when exercising a power.
In Australia, it is generally accepted that the prerogative power is included in section 61 of the Constitution of Australia
, the section which vests the executive power of Australia in the Crown and the Governor-General of Australia
as the Crown's representative. By convention
, the executive functions of government in Australia are carried out from day to day by the Government of Australia
.
rescued 433 people, asylum seekers bound for Australia, and of mainly Afghani
background, from their wooden fishing boat. The boat was sinking in international waters
about 140 kilometres north of Christmas Island
(an Australian territory
). Some of the people required medical attention, and the Tampa proceeded to the nearest port, at Christmas Island. The Tampa stopped at the boundary of Australia's territorial sea (twelve nautical mile
s offshore) to request permission to enter Australian waters and unload the asylum seekers, but permission was refused.
On 29 August, the Tampa declared a state of emergency and entered Australian waters. About four nautical miles offshore, the ship was stopped and boarded by forty-five SAS troops, who took control of the ship and anchored it.
This action prompted the Victorian Council for Civil Liberties (VCCL) to take action. Along with Victorian solicitor Eric Vadarlis, they initiated proceedings in the Federal Court of Australia
for a writ of habeas corpus, against the Government of Australia
and three Ministers, the Minister for Immigration and Multicultural Affairs, Philip Ruddock
, the Attorney-General of Australia
, Daryl Williams
, and the Minister for Defence, Peter Reith
. During the proceedings, Amnesty International
and the Human Rights and Equal Opportunity Commission
intervened in the case, generally supporting VCCL and Vadarlis.
The various Government parties were represented by a team of lawyers including the Solicitor-General of Australia
, David Bennett
AO QC
. VCCL and Vadarlis were represented by a number of barrister
s well known for their public involvement in refugee law and pro bono
work for refugees, including Julian Burnside
QC.
on 31 August, at 5.00 p.m. Melbourne time, and the court was convened by 5.40 p.m., with Judge North presiding. Both VCCL and Vadarlis argued that the court should immediately make an order preventing the Government from removing the Tampa from Australian waters. North thought there was a strong basis for making such an order, but decided that he would make a final decision the next morning. Nevertheless, North warned that the asylum seekers should not be moved off the Tampa in the meantime, and this had the effect of a temporary injunction
.
The court reconvened on the morning of 1 September, but while proceedings were underway, Prime Minister
John Howard
announced the Pacific Solution
, under which the asylum seekers on the Tampa would be transferred to Nauru
and New Zealand
. As such, the Government asked that the case should be concluded that day, so that the Solution could be implemented. North decided that the trial should start the following day, on 2 September.
for transfer to Nauru and New Zealand.
The issue of the injunction (which prevented the removal of the Tampa or the people on it) was still outstanding, and an agreement could not be reached. North sent the parties to mediation
, and that evening an agreement was reached, which allowed the Government to transfer the asylum seekers to the Manoora.
VCCL and Vadarlis made two main arguments. Firstly, they argued that the provisions of the Migration Act 1958 (which regulates immigration) applied to the asylum seekers, and the normal procedures for dealing with other non-citizens should be applied. The Migration Act did empower the Government to detain all non-citizens, under the system of mandatory detention
, but it also gave non-citizens certain rights, such as the right to seek asylum
and to apply for protection visa
s. As such, they argued that the asylum seekers should be taken to the mainland and be allowed to apply for visas. Alternatively, they argued that if the Migration Act did not apply to the situation of these asylum seekers, then they were being detained unlawfully, and that no-one in Australia, regardless of their citizenship status, could be detained unlawfully or arbitrarily, and so they should be released.
On the other hand, the Government argued that the non-citizens (whom they described as "unlawful non-citizens") were not being detained at all, and contended that they were free to go anywhere they pleased, with the exception of Australia. They also argued that even if the non-citizens were being detained, then despite there being no statutory
authority for their detention, the Government had a prerogative power to expel non-citizens from Australian waters.
North decided that the asylum seekers (which he referred to as "rescuees") were in fact being detained by the Government. He found that the Government did indeed intend to control the rescuees, by directing the Tampa where it could go, by closing the port at Christmas Island, and by making decisions about what would happen to them without consulting them. North added that "the presence of 45 SAS troops, armed and in combat fatigues, is likely to have led the rescuees to the conclusion that they were bound to do as they were told."
North then considered whether there was a prerogative power which could be exercised to detain the asylum seekers. He found that it was unlikely that such a power existed at all, and even if it once did, then it had been replaced by the statutory scheme in the Migration Act, which now identified and regulated all the powers of the executive government
to deal with non-citizens. North relied on a number of authorities, including a 1906 case of the High Court of Australia
, in which Justice Barton
found that "the question to-day is one of statutory authority."
Ultimately, North granted a writ of habeas corpus, which he preferred to describe more simply as "an order for release." He found that the Government had no statutory authority to detain the asylum seekers, and since there was no prerogative power to detain them, they were being held unlawfully and had to be released.
North rejected a number of other arguments based on particular provisions of the Migration Act on the basis that VCCL and Vadarlis did not have standing
to make those arguments.
The Government argued that Judge North had erred in his judgment on a number of matters. They argued that North had made incorrect findings of fact, and that in truth:
They also argued that North erred in finding that the Government did not have a prerogative power to prevent the rescuees from entering Australia, and the complementary power to detain the rescuees for the purposes of expelling them from Australia. This was the principal issue in the appeal.
The VCCL and Vadarlis again argued that if there was such a prerogative power, it had been completely replaced by the statutory scheme in the Migration Act 1958. They argued that the Act "covered the field", that is, it was so comprehensive that it demonstrated an intention to completely displace any other executive powers in the subject area (the concept of "covering the field" usually refers to the way that federal laws can displace state laws if they show an intention to be the only law with respect to the subject matter, see section 109 of the Australian Constitution
).
Judge French
summarised the key issues in the appeal as being:
delivered the majority opinion, with Judge Beaumont agreeing with him. Chief Justice Black
dissented.
French said that this "gatekeeping" function had been recognised in a number of English cases, including an 1837 case concerning the power of the Governor of Mauritius to eject non-citizens, and a 1906 case concerning the deportation of foreign workers from Canada
.
French also decided that, although statutes are capable of replacing prerogative powers, the Migration Act had not replaced the prerogative power in this case. He said that the question was whether the Act "evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry bypreventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result
." He found that the Act was a positive conferral of executive power, and did not clearly show such an intention.
Finally, on the issue of whether a writ of habeas corpus should be issued, French said that the rescuees were not in fact under detention by the Government, and thus there could be no order made to release them. He said that "to the extent that the Commonwealth prevented the rescuees landing on Australian soil it closed a possible avenue out of a situation in which they had been placed by other factors." He also found that just because travelling to Nauru or New Zealand under the Pacific Solution was the only real exit from the situation for the rescuees, that did not mean the Government was responsible for detaining them.
Black, citing a range of authorities from case law and academic works, decided that although there probably once was a prerogative power to exclude non-citizens, it had fallen into disuse and was no longer considered a valid prerogative power by the end of the 19th century. Indeed, one source indicated that it seemed that the last time the prerogative power had been used was in 1771. He did not consider it necessary to decide conclusively whether the power still existed or not, saying that it was sufficient when considering whether legislation had superseded the power to know that it was at best questionable whether the power even remained in existence.
Ultimately, Black decided that the Migration Act, which provided "for a very comprehensive regime" about the entry into Australia of non-citizens, was exclusive and did displace any remnant of prerogative power that remained on the subject. He said that:
As such, there was no non-statutory power to detain the rescuees, and the Government had not even attempted to rely on any statutory power in this case. Black agreed with Judge North's original conclusion that the rescuees were on the facts detained, and as such, he agreed with North's orders to release the rescuees.
passed the Border Protection (Validation and Enforcement Powers) Act 2001, a retrospective law
which gave statutory authorisation to the actions of the Government in detaining the asylum seekers on the Tampa. This would seem to rule out any prospect of an appeal to the High Court of Australia
on the matter, since the decision of North at first instance and Black in dissent at appeal were based on the fact that the Government was not exercising a statutory power.
Vadarlis did make an application for special leave to appeal to the High Court on 27 November, but the application was rejected, since by that time all of the asylum seekers had been transferred to Nauru or New Zealand, and their original detention on the Tampa could no longer be challenged. However, in refusing special leave, the court did say that the question of the validity of the new Act, and the question of the nature of the prerogative power of the Government were important questions, which should be considered in an appropriate case.
In 2004, the scheme of immigration detention in Nauru was challenged in the Supreme Court of Nauru
by three detainees, in the case of Amiri v Director of Police. The detainees also sought the issue of writs of habeas corpus, but the Supreme Court found that the detention scheme under Nauru's Immigration Act 1999 was valid. The issue was appealed to the High Court of Australia (which has jurisdiction to hear appeals from Nauru under the Nauru (High Court Appeals Act) 1976 ), in the case of Ruhani v Director of Police (No 2), where all judges except Justice Kirby upheld the Supreme Court's decision.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n court case decided in the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
on 18 September 2001. It concerned the actions of the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
in preventing asylum seekers aboard the Norwegian
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
cargo vessel MV Tampa
MV Tampa
MV Tampa is a roll-on/roll-off container ship completed in 1984 by Hyundai Heavy Industries Co., Ltd. in South Korea for the Norway based firm, Wilhelmsen Lines Shipowning.-Tampa affair:...
from entering Australia in late August 2001 (see Tampa affair
Tampa affair
In August 2001, the Howard Government of Australia refused permission for the Norwegian freighter MV Tampa, carrying 438 rescued Afghans from a distressed fishing vessel in international waters, to enter Australian waters...
). The Victorian Council for Civil Liberties (now Liberty Victoria), and solicitor Eric Vadarlis, were seeking a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
(an order for the asylum seekers to be released). The case is significant because it is one of the few cases to consider the nature and scope of the prerogative power of the executive branch of Government
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
in Australia.
Executive power
One of the key issues in the case, both at trial and on appeal, was the nature of the executive power of government. There are several sources of executive power, but the source in consideration in this case was the prerogative power of government.The concept of prerogative power, often referred to in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
as the Royal Prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
, consists of various powers belonging exclusively to the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, such as the power to make treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
or the power to declare war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...
. The Royal Prerogative was generally said to derive from the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The prerogative powers are not unlimited, and they can be superseded by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, or lost over time through disuse. A statute can completely replace a prerogative power (extinguish it), or it can merely define how decisions should be made, and what factors to consider, when exercising a power.
In Australia, it is generally accepted that the prerogative power is included in section 61 of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, the section which vests the executive power of Australia in the Crown and the Governor-General of Australia
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
as the Crown's representative. By convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
, the executive functions of government in Australia are carried out from day to day by the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
.
The Tampa affair
On 26 August 2001, the MV TampaMV Tampa
MV Tampa is a roll-on/roll-off container ship completed in 1984 by Hyundai Heavy Industries Co., Ltd. in South Korea for the Norway based firm, Wilhelmsen Lines Shipowning.-Tampa affair:...
rescued 433 people, asylum seekers bound for Australia, and of mainly Afghani
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
background, from their wooden fishing boat. The boat was sinking in international waters
International waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...
about 140 kilometres north of Christmas Island
Christmas Island
The Territory of Christmas Island is a territory of Australia in the Indian Ocean. It is located northwest of the Western Australian city of Perth, south of the Indonesian capital, Jakarta, and ENE of the Cocos Islands....
(an Australian territory
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
). Some of the people required medical attention, and the Tampa proceeded to the nearest port, at Christmas Island. The Tampa stopped at the boundary of Australia's territorial sea (twelve nautical mile
Nautical mile
The nautical mile is a unit of length that is about one minute of arc of latitude along any meridian, but is approximately one minute of arc of longitude only at the equator...
s offshore) to request permission to enter Australian waters and unload the asylum seekers, but permission was refused.
On 29 August, the Tampa declared a state of emergency and entered Australian waters. About four nautical miles offshore, the ship was stopped and boarded by forty-five SAS troops, who took control of the ship and anchored it.
This action prompted the Victorian Council for Civil Liberties (VCCL) to take action. Along with Victorian solicitor Eric Vadarlis, they initiated proceedings in the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
for a writ of habeas corpus, against the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
and three Ministers, the Minister for Immigration and Multicultural Affairs, Philip Ruddock
Philip Ruddock
Philip Maxwell Ruddock is an Australian politician who is currently a member of the House of Representatives representing the Division of Berowra, New South Wales, for the Liberal Party of Australia...
, the Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
, Daryl Williams
Daryl Williams
Daryl Robert Williams AM QC , Australianpolitician, was a Liberal member of the Australian House of Representatives from March 1993 to October 2004, representing the Division of Tangney, Western Australia.-Biography:...
, and the Minister for Defence, Peter Reith
Peter Reith
Peter Keaston Reith, , former Australian politician, was a Deputy Leader of the Liberal Party and then a senior Cabinet minister in the first two terms of the Howard Government.-Early life:...
. During the proceedings, Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and the Human Rights and Equal Opportunity Commission
Human Rights and Equal Opportunity Commission
The Australian Human Rights Commission is a national human rights institution, a statutory body funded by, but operating independently of, the Australian Government. It has the responsibility for investigating alleged infringements under Australia’s anti-discrimination legislation...
intervened in the case, generally supporting VCCL and Vadarlis.
The various Government parties were represented by a team of lawyers including the Solicitor-General of Australia
Solicitor-General of Australia
The Solicitor-General of the Commonwealth of Australia is the Second Law Officer to the Attorney-General of Australia. The holders of this office are not members of parliament....
, David Bennett
David Bennett (barrister)
David Michael John Bennett AC, QC is an Australian barrister and former Solicitor-General of Australia.-Early years:...
AO QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
. VCCL and Vadarlis were represented by a number of barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s well known for their public involvement in refugee law and pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
work for refugees, including Julian Burnside
Julian Burnside
Julian William Kennedy Burnside AO QC is an Australian barrister, human rights and refugee advocate, and author. He is known for his staunch opposition to the mandatory detention of asylum seekers, and has provided legal counsel in a wide array of high-profile cases...
QC.
Initial proceedings
The applications were made in MelbourneMelbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
on 31 August, at 5.00 p.m. Melbourne time, and the court was convened by 5.40 p.m., with Judge North presiding. Both VCCL and Vadarlis argued that the court should immediately make an order preventing the Government from removing the Tampa from Australian waters. North thought there was a strong basis for making such an order, but decided that he would make a final decision the next morning. Nevertheless, North warned that the asylum seekers should not be moved off the Tampa in the meantime, and this had the effect of a temporary injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
.
The court reconvened on the morning of 1 September, but while proceedings were underway, Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
John Howard
John Howard
John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
announced the Pacific Solution
Pacific Solution
The Pacific Solution was the name given to the Australian government policy of transporting asylum seekers to detention camps on small island nations in the Pacific Ocean, rather than allowing them to land on the Australian mainland...
, under which the asylum seekers on the Tampa would be transferred to Nauru
Nauru
Nauru , officially the Republic of Nauru and formerly known as Pleasant Island, is an island country in Micronesia in the South Pacific. Its nearest neighbour is Banaba Island in Kiribati, to the east. Nauru is the world's smallest republic, covering just...
and New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
. As such, the Government asked that the case should be concluded that day, so that the Solution could be implemented. North decided that the trial should start the following day, on 2 September.
Trial
Over the night of 1 September, VCCL, Vadarlis and the Government agreed upon a statement of facts for the case, so that the proceedings could run faster. Approximately 100 people were involved on the Government side alone in working on the statement and preparing documents for the next morning's hearing. The trial started later in the morning, and the court started hearing evidence, but later that day it was announced that under the Pacific Solution, the Government planned to transfer the asylum seekers to HMAS Manoora in order to carry them to Port MoresbyPort Moresby
Port Moresby , or Pot Mosbi in Tok Pisin, is the capital and largest city of Papua New Guinea . It is located on the shores of the Gulf of Papua, on the southeastern coast of the island of New Guinea, which made it a prime objective for conquest by the Imperial Japanese forces during 1942–43...
for transfer to Nauru and New Zealand.
The issue of the injunction (which prevented the removal of the Tampa or the people on it) was still outstanding, and an agreement could not be reached. North sent the parties to mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
, and that evening an agreement was reached, which allowed the Government to transfer the asylum seekers to the Manoora.
VCCL and Vadarlis made two main arguments. Firstly, they argued that the provisions of the Migration Act 1958 (which regulates immigration) applied to the asylum seekers, and the normal procedures for dealing with other non-citizens should be applied. The Migration Act did empower the Government to detain all non-citizens, under the system of mandatory detention
Mandatory detention in Australia
Mandatory detention in Australia concerns the Australian federal government's policy and system of mandatory immigration detention active from 1992 to date, pursuant to which all persons entering the country without a valid visa are compulsorily detained and sometimes subject to deportation.In the...
, but it also gave non-citizens certain rights, such as the right to seek asylum
Right of asylum
Right of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries...
and to apply for protection visa
Visa (document)
A visa is a document showing that a person is authorized to enter the territory for which it was issued, subject to permission of an immigration official at the time of actual entry. The authorization may be a document, but more commonly it is a stamp endorsed in the applicant's passport...
s. As such, they argued that the asylum seekers should be taken to the mainland and be allowed to apply for visas. Alternatively, they argued that if the Migration Act did not apply to the situation of these asylum seekers, then they were being detained unlawfully, and that no-one in Australia, regardless of their citizenship status, could be detained unlawfully or arbitrarily, and so they should be released.
On the other hand, the Government argued that the non-citizens (whom they described as "unlawful non-citizens") were not being detained at all, and contended that they were free to go anywhere they pleased, with the exception of Australia. They also argued that even if the non-citizens were being detained, then despite there being no statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
authority for their detention, the Government had a prerogative power to expel non-citizens from Australian waters.
Judgment at trial
Judge North delivered his decision on 11 September 2001.North decided that the asylum seekers (which he referred to as "rescuees") were in fact being detained by the Government. He found that the Government did indeed intend to control the rescuees, by directing the Tampa where it could go, by closing the port at Christmas Island, and by making decisions about what would happen to them without consulting them. North added that "the presence of 45 SAS troops, armed and in combat fatigues, is likely to have led the rescuees to the conclusion that they were bound to do as they were told."
North then considered whether there was a prerogative power which could be exercised to detain the asylum seekers. He found that it was unlikely that such a power existed at all, and even if it once did, then it had been replaced by the statutory scheme in the Migration Act, which now identified and regulated all the powers of the executive government
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
to deal with non-citizens. North relied on a number of authorities, including a 1906 case of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, in which Justice Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
found that "the question to-day is one of statutory authority."
Ultimately, North granted a writ of habeas corpus, which he preferred to describe more simply as "an order for release." He found that the Government had no statutory authority to detain the asylum seekers, and since there was no prerogative power to detain them, they were being held unlawfully and had to be released.
North rejected a number of other arguments based on particular provisions of the Migration Act on the basis that VCCL and Vadarlis did not have standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to make those arguments.
Arguments
The Government quickly appealed to the Full Court of the Federal Court of Australia, and on 12 September an application was granted to fast-track the proceedings. The arguments were heard on 13 September.The Government argued that Judge North had erred in his judgment on a number of matters. They argued that North had made incorrect findings of fact, and that in truth:
- the rescuees were not being detained by the SAS troops,
- in reality it was the captain of the Tampa, Arne RinnanArne RinnanArne Frode Rinnan was the captain of the MV Tampa, owned by Norwegian shipping line Wallenius Wilhelmsen which was involved in the so-called Tampa affair...
, who was detaining the rescuees, - the circumstances of the rescuees were self-inflicted, and
- the rescuees were not detained because they had the option of going to Nauru or New Zealand under the Pacific Solution.
They also argued that North erred in finding that the Government did not have a prerogative power to prevent the rescuees from entering Australia, and the complementary power to detain the rescuees for the purposes of expelling them from Australia. This was the principal issue in the appeal.
The VCCL and Vadarlis again argued that if there was such a prerogative power, it had been completely replaced by the statutory scheme in the Migration Act 1958. They argued that the Act "covered the field", that is, it was so comprehensive that it demonstrated an intention to completely displace any other executive powers in the subject area (the concept of "covering the field" usually refers to the way that federal laws can displace state laws if they show an intention to be the only law with respect to the subject matter, see section 109 of the Australian Constitution
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
).
Judge French
Robert French
Robert Shenton French, AC is Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy....
summarised the key issues in the appeal as being:
- "Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees and their detention for that purpose.
- "If there was no such executive power, whether the rescuees were subject to a restraint attributable to the Commonwealth and amenable to habeas corpus."
Judgment
The Full Court handed down its decision on 18 September. Judge FrenchRobert French
Robert Shenton French, AC is Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy....
delivered the majority opinion, with Judge Beaumont agreeing with him. Chief Justice Black
Michael Black (judge)
Michael Eric John Black, AC, QC is a former Chief Justice of the Federal Court of Australia.After attending schools in Australia, Egypt and England, he received further education at Wesley College, Melbourne. He graduated in law from the University of Melbourne in 1963 and began practice at the...
dissented.
The majority
Judge French found that there is indeed a prerogative power to prevent the entry of non-citizens into Australia, and as a corollary, the power to do various things that are necessary to prevent such an entry. He said that:
"The power to determine who may come into Australia is so central to its [Australia's] sovereignty that it is not to be supposed that the Government of the nation would lack the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community [sic], from entering."
French said that this "gatekeeping" function had been recognised in a number of English cases, including an 1837 case concerning the power of the Governor of Mauritius to eject non-citizens, and a 1906 case concerning the deportation of foreign workers from Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
.
French also decided that, although statutes are capable of replacing prerogative powers, the Migration Act had not replaced the prerogative power in this case. He said that the question was whether the Act "evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry bypreventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result
." He found that the Act was a positive conferral of executive power, and did not clearly show such an intention.
Finally, on the issue of whether a writ of habeas corpus should be issued, French said that the rescuees were not in fact under detention by the Government, and thus there could be no order made to release them. He said that "to the extent that the Commonwealth prevented the rescuees landing on Australian soil it closed a possible avenue out of a situation in which they had been placed by other factors." He also found that just because travelling to Nauru or New Zealand under the Pacific Solution was the only real exit from the situation for the rescuees, that did not mean the Government was responsible for detaining them.
Black's dissent
Chief Justice Black dissented, finding that although the executive does have the power to exclude or expel non-citizens from within the country, in Australia that power is completely contained within legislation.Black, citing a range of authorities from case law and academic works, decided that although there probably once was a prerogative power to exclude non-citizens, it had fallen into disuse and was no longer considered a valid prerogative power by the end of the 19th century. Indeed, one source indicated that it seemed that the last time the prerogative power had been used was in 1771. He did not consider it necessary to decide conclusively whether the power still existed or not, saying that it was sufficient when considering whether legislation had superseded the power to know that it was at best questionable whether the power even remained in existence.
Ultimately, Black decided that the Migration Act, which provided "for a very comprehensive regime" about the entry into Australia of non-citizens, was exclusive and did displace any remnant of prerogative power that remained on the subject. He said that:
"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."
As such, there was no non-statutory power to detain the rescuees, and the Government had not even attempted to rely on any statutory power in this case. Black agreed with Judge North's original conclusion that the rescuees were on the facts detained, and as such, he agreed with North's orders to release the rescuees.
Consequences
On 26 September 2001, the Parliament of AustraliaParliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
passed the Border Protection (Validation and Enforcement Powers) Act 2001, a retrospective law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
which gave statutory authorisation to the actions of the Government in detaining the asylum seekers on the Tampa. This would seem to rule out any prospect of an appeal to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on the matter, since the decision of North at first instance and Black in dissent at appeal were based on the fact that the Government was not exercising a statutory power.
Vadarlis did make an application for special leave to appeal to the High Court on 27 November, but the application was rejected, since by that time all of the asylum seekers had been transferred to Nauru or New Zealand, and their original detention on the Tampa could no longer be challenged. However, in refusing special leave, the court did say that the question of the validity of the new Act, and the question of the nature of the prerogative power of the Government were important questions, which should be considered in an appropriate case.
In 2004, the scheme of immigration detention in Nauru was challenged in the Supreme Court of Nauru
Supreme Court of Nauru
The Supreme Court of Nauru is the highest judicial court of the Republic of Nauru.-Constitutional establishment:It is established by part V of the Constitution, adopted upon Nauru's independence from Australia in 1968. Art. 48 of the Constitution establishes the Supreme Court as "a superior court...
by three detainees, in the case of Amiri v Director of Police. The detainees also sought the issue of writs of habeas corpus, but the Supreme Court found that the detention scheme under Nauru's Immigration Act 1999 was valid. The issue was appealed to the High Court of Australia (which has jurisdiction to hear appeals from Nauru under the Nauru (High Court Appeals Act) 1976 ), in the case of Ruhani v Director of Police (No 2), where all judges except Justice Kirby upheld the Supreme Court's decision.