Ruddock v Vadarlis - [2001] FCA 1329

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) Act1966 (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
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
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

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.
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.
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?
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.
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 executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.” [citations omitted]
See also Mason CJ (at 13) and McHugh J (at 63) to the same effect.
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.
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
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 is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."
PREROGATIVE POWER
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.
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 (“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 what was done or said before the close of the sixteenth century. Up to that time constitutional usage was quite uncrystallized; in fact, it had hardly begun to settle. Before then hundreds of precedents might be found, stretches of Royal authority unchallenged at the time, for acts which were afterwards discovered to be gross infringements of the privileges of Parliament or of the liberties of the people. But I am very much impressed with the fact that for nearly three centuries no British Sovereign has attempted to exercise the right of expelling aliens or of preventing their intrusion in time of peace by virtue of his prerogative; and no British Minister, not even the strongest advocate in theory for the plenitude of the Royal authority, has ventured in this matter to reduce his theory into practice.”
Williams (at 415) and A’Beckett JJ (at 434) were content to assume, without offering any opinion, that the prerogative existed in England.
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).
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 very able judgment of Mr Justice Kerferd” and we are therefore justified in referring to the remarks of that Judge as being fairly expressive of the opinion of the Privy Council …”
- The Royal Prerogative, LBC, 1987, at 99.
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, to abstain from pronouncing upon them on the present occasion. For the reasons which have been submitted, and which are indeed involved in the very able judgment of Mr. Justice Kerferd … their Lordships will humbly recommend 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.
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.

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 to the principles laid down by writers on international law, but so far as I can understand, 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 the express purpose of enabling that to be done.”
In Leong Kum, Innes J expressed a similar view (at 266 – 267):
“It seems, however, somewhat strange that the learned counsel, who has argued the case with his accustomed zeal and ability, has not been able to put before 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 amity with England.”
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 Colonies or States, requires statutory authority has, no doubt, been the subject of some hesitation on the part of eminent lawyers, but it is not necessary for us to decide that question. It does not arise. The question here is, first, whether the statutory 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 a few 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 the Crown by its prerogative, can expel even alien friends; but there does not seem to have been any attempt since the Revolution to exercise such prerogative, and the extrusion of alien friends has since then always been effected by statutory authority.’
The question to-day is one of statutory authority.”
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, 3^rd ed, 1977 at 11; Markesinis, “The Royal Prerogative Revisited” [1973] Cambridge Law Journal 287, 299-305.
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 that sovereignty resided in the King in Parliament. Any rights thereafter exercised by the King (or the executive) alone must be regarded as a part of sovereignty which Parliament chose to leave in his hands.”
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 “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).
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 this prerogative were beginning to be felt in the sixteenth century; and they gathered strength in the seventeenth, eighteenth, and early nineteenth centuries …During the greater part of the eighteenth century, there appear to be very few instances in which the Crown used its prerogative to exclude or to expel aliens; and when, at the end of the century, it was thought desirable to exclude aliens, statutory powers were got … These statues were passed to exclude aliens who, it was though, might spread in England the ideas of the French Revolution. They were therefore opposed by the new Whigs who sympathized with these ideas. In 1816 Romilly, Mackintosh, and Denman denied that the Crown had the wide prerogative attributed to it by Eldon and Ellenborough; the same thesis was maintained in 1825 in a learned article in the 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.
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.
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 of the prerogative said to be in the Crown, of sending out of the realm alien friends in time of peace … Till an answer was made to such a demand, he had suspended his opinion. He only ventured then to doubt the existence of such a right. But from the proofs which had been not produced and the arguments which had been offered after a twelvemonth’s leisure for research, he now thought himself justified in declaring, that such a prerogative was not warranted by law.”
- House of Commons 1816, Debates (Hansard), 10 May 1816, 446 – 470.
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 a power to regulate the admission of strangers … Certainly, such rights exist in all states; but by whom to be exercised in each commonwealth was a question to be answered by the laws of each country.”
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 by the Executive, not only of the dispensing power with reference to comparatively unpopular laws, but also of the prerogative instead of the slower 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 any foreigner who is within the empire or who knocks at its gates, that he must depart or may not enter …
Except with reference to foreign sovereigns, their ambassadors and their forces, upon a careful historical examination of the subject, there seems to be no prerogative of the Crown either to exclude or expel aliens. Whether they be innocent immigrants or sojourners or fugitive criminals of the deepest dye, their right to land or remain upon British soil depends not upon the will of the Crown but upon the voice of the Legislature; nay, more, this right has existed ever since the Great Charter, if not even earlier, and is so ancient that 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.
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.
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).
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 (5^th 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
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 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”.
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 (2^nd ed, 1997) at 439.
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
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.
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 be done 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 is unanswerable. He says: ‘What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?’”
Lord Moulton said (at 554):
“the statutory powers … are wider and more comprehensive than those of the prerogative itself. [The Parliament] has indicated unmistakably that it is the intention of the nation that the powers of the Crown in these respects should be 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 a modus operandi for securing the desired result, which is not the same as that of the prerogative.”
Lord Parmoor said (at 576):
“[w]here a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such 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).
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 prerogative power and the power under municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the statute by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieve by entry through the front. I think Parliament must be taken to have intended 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 if there was a proper case for it, the question is whether the Secretary of State can 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 statute by invoking a prerogative? If he could do this, it would mean that, by a side wind, Laker Airways Ltd would be deprived of the protection which the statute affords them … [T]he Secretary of State was mistaken in thinking that he could do it.”
See also Lawton LJ (at 728) and Mocatta J at first instance (at 678) to the same effect.
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.”

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.
Reliance was placed on Barton to show that the courts must be slow to find a statutory 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 area of 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 the prerogative or executive power; moreover, there is no inconsistency between the provisions of the statute and the exercise of that power so far as it relates to the extradition of fugitive offenders from foreign states which are not party to an extradition treaty with Australia.” [emphasis added]
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 Act1988 (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.
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 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.
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)
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, the coming into, and presence in, Australia of non-citizens.
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).
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 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.
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 in Australia" and as well, because of section 18A of the Acts Interpretation Act 1901, 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 migration zone; or
(c)that this Act does not apply to persons in those parts.
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 the 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
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)
If there were any doubt about the geographic reach of the Act and its scope in relation 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.
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.
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.
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)).
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 of an offence against a law in force in Australia. Such an offence includes the offences set out in Division 12.
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.
The third and most significant area of amendment involved the insertion of Division 12A entitled ‘Chasing, boarding etc ships and aircraft’.
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.
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.
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 foreign country 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.
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)).
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.
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.
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 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.
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 of measures announced by the Prime Minister on 27 June 1999 in response to a massive 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 of unauthorised arrivals and other breaches of our laws at our borders.
The changes the bill proposes will strengthen legislative provisions relating to the prevention of the smuggling of people into Australia.
These changes will maintain the integrity of Australia's borders against attempted intrusions of the criminal elements behind most people smuggling activities
There is, however, another side to the mass movement of people. This is the cynical 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 around 2,000 people of Somali descent on board. These people were all on their way to 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 seeking haven in the first available safe country. They are instead young migrants from less developed countries who are seeking to work in developed countries.
Australia is increasingly a preferred destination and unwilling recipient of the attention of these people.
The first of the influx of Chinese boats arrived in December last year, travelling at the conclusion of the monsoon season in the Northern Hemisphere.
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), 22 September 1999, p 10147 [passages omitted]
The Minister went on to describe the purpose of the bill:
The bill will create new powers that will allow our officers to undertake enforcement action beyond our territorial waters, and to arrest and prosecute those involved in attempts to breach our sovereignty in this way.
The bill ensures that the investigatory and enforcement powers held by officers of front-line border agencies are complementary so they may function more effectively and efficiently on behalf of Australia.
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
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 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.

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.
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.
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.
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 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).
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.
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 to take it, and because the applicant is free to go wherever the ship goes, that he is not imprisoned. What answer is that to this application? Compelling him to stay on board the ship is exactly what the applicant complains of as an illegal restraint upon his liberty.”
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 police inspector] in restraining the liberty of these men; that he does restrain them there 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 an imprisonment of that person, the person not being able to manage the steamer, or to leave her without going into the water, and if these Chinamen are prevented from leaving the steamer and going where they please, that is a sufficient restraint of liberty, and entitles them to a habeas corpus.”
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 the country where they wish to take refuge cannot exclude a restriction on liberty…Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.”
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 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.
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 nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law.” (Emphasis added, citations omitted)
See also per McHugh J at 63.
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 is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Sommersett’s case …”
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.
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].
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 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.
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.
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.
North J also concluded that it was not reasonable to expect, nor was it a practical 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.
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.
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 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 others it cannot be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained.”
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.
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.
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 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.
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.
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
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.
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 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.

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 positive laws are silent."
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…."
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.
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.
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 of partial displacement, that is, confinement, restriction or limitation." (569)
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 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
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 exclusion or 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 of excluding aliens without giving offence to the country to which those aliens belong."
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 right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material 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.
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, whether he 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.
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 by proclamation to prevent aliens from entering the kingdom, and a statute to be unnecessary, 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 this colony." (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)
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.
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.
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.
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. These powers may be exercised for good reasons or bad. That debate, however, is not one for this Court to enter.
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.
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 Colonies or States, requires statutory authority has, no doubt, been the subject of some hesitation on the part of eminent lawyers, but it is not necessary for us to decide 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."
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 Limv 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).
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".
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.
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
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 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.
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.

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.
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.
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.
The steps taken in relation to the MV Tampa which had the purpose and effect of 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.
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
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.
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 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.
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.
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 to take it, and because the applicant is free to go wherever the ship goes, that he is not imprisoned. What answer is that to this application? Compelling him to stay on board the ship is exactly what the applicant complains of as an illegal 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.
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; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." (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.
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.
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.
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.
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.
In my opinion there was no detention, what was done was within power, the appeals 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
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 true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:
Dated: 18 September 2001

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1007 OF 2001

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

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

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

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