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, 61Acts 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, 4th ed (1997) at 251
Steven and Haynes, Forsyth’s Cases and Opinions on Constitutional Law (1869) at 181
Clark and McCoy, The Most Fundamental Legal Right – Habeas Corpus in the Commonwealth, Clarendon Press, Oxford (2000) 183 et ffD K Singh ‘What cannot be done directly cannot be done indirectly, Part 1’, (1959) 32 Australian Law Journal 374; 33 Australian Law Journal 3
HV Evatt, The Royal Prerogative, LBC (1987) at 99
G Winterton, Parliament, the Executive and the Governor General, Melbourne University Press (1983) at 118-9, 120
de Smith, Constitutional and Administrative Law, 3rd ed (1977) at 11
Markesinis, ‘The Royal Prerogative Revisited’ [1973] Cambridge Law Journal 287 at 299-305
WF Craies, ‘The Right of Aliens to Enter British Territory’ (1890) 6 Law Quarterly Review 27 at 27-9, 37.
TW Haycraft, ‘Alien Legislation and the Prerogative of the Crown’ [1897] Law Quarterly Review 165
Sir William Holdsworth, A History of English Law, Vol X, Sweet and Maxwell (1938) at 396-7
H Street and R Brazier, Constitutional and Administrative Law, 5th ed (1985) at 149-150
PH Lane, Lane’s Commentary on the Australian Constitution, 2nd ed (1997) at 439
J Goldring, ‘The Impact of Statutes on the Royal Prerogative; Australasian Attitudes as to the Rule in Attorney-General v De Keyser’s Royal Hotel Ltd (1974) 48 Australian…
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- Ruddock v Vadarlis [2001] FCA 1329
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CaseChat Overview and Summary
The court was required to determine whether the Extradition (Foreign States) Act 1966 (Cth) displaced the prerogative power to request a foreign state to detain a fugitive offender pending extradition to Australia. The reasoning of the court was grounded in the interpretation of statutory provisions and the understanding of prerogative powers. The court examined the Extradition (Foreign States) Act 1966 (Cth) and its application in the context of the absence of an extradition treaty with Brazil. It was noted that the High Court in Barton had previously held that the Act did not apply to such a request. The court further distinguished this case from the obiter observations in Barton, which suggested that the statute might displace the prerogative power in certain circumstances. Ultimately, the court concluded that the Act's limited scope did not extend to the area covered by the prerogative power, and thus there was no inconsistency between the statute and the exercise of the prerogative power.
The court also considered the decision in Oates v Attorney-General (Cth) and found that the section of the Extradition Act 1988 (Cth) in question did not displace the prerogative power to request extradition from another state. This was because the section did not provide the foundation for the Attorney-General's authority and was part of a statute concerned primarily with extradition from Australia.
The court ultimately allowed the appeal, dismissed the cross appeal, and set aside the orders made by North J on 11 September 2001, substituting a dismissal of the application. The question of costs was to be addressed through written submissions within fourteen days.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.