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Judgment Template 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 - 2 - 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. - 3 - 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 - 4 - 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, 4th 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, 3rd 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 - 2 - 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, 5th ed (1985) at 149-150 PH Lane, Lane’s Commentary on the Australian Constitution, 2nd 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 - 3 - Farey v Burvett (1916) 21 CLR 433 referred to Herd v Weardale
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