Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs
[2001] FCA 1297
•11 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Victorian Council for Civil Liberties Incorporated v Minister for
Immigration and Multicultural Affairs
[2001] FCA 1297PRACTICE & PROCEDURE – joinder of parties – status of interveners
ADMINISTRATIVE LAW – prerogative writs and orders – habeas corpus – power of Court to grant order for release – nature of relief available – whether court has a discretion not to order release when detention is found to exist
HABEAS CORPUS – applicability of remedy – nature of restraint required – distinction between partial and total restraint – whether reasonable means of egress available – whether purpose for which release is sought affects the grant of release
EXECUTIVE GOVERNMENT – prerogative power of the Executive – whether power to detain aliens without statutory authority
ADMINISTRATIVE LAW – standing – where orders for mandamus, injunctions and declarations are sought – whether applicants have a special interest – where acting in the public interest – where mere intellectual or emotional concern
CITIZENSHIP & IMMIGRATION – where unlawful non-citizens – whether s245F of the Migration Act 1958 (Cth) applies – whether s189 of the Act imposes a duty to detain unlawful non-citizens attempting to enter the migration zone
CONSTITUTIONAL LAW – implied freedom of political communication – whether right extends to aliens – whether right extends to citizens to provide legal advice to aliens – whether government required to facilitate communication
Associations Incorporations Act 1981 (Vic)
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 5, 13, 14, 189, 196, 198, 199, 229, 245A, 245B, 245F, 256
Human Rights and Equal Opportunity Act 1986 (Cth), ss 3, 11
Lunacy Act 1890
Extradition (Foreign States) Act 1966 (Cth)
Border Protection Bill 2001 (Cth)United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, applied
Tait v R (1962) 108 CLR 620, applied
Kelleher v Corrective Services Commission of New South Wales (1987) 8 NSWLR 423, referred to
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, considered
Re Bolton & Another; Ex parte Beane (1987) 162 CLR 514, considered
Waters v Commonwealth of Australia (1951) 82 CLR 188, referred to
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, referred to
Clarkson v R [1986] VR 464, referred to
Bird v Jones (1845) 115 ER 668, distinguished
Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26, considered
Jones v Cunningham 371 US 236 (1963), considered
R v Clarkson (1722) 93 ER 625, referred to
R v Delaval (1763) 97 ER 913, referred to
Chin Yow v United States 208 US 8 (1907), considered
R v The Coroner at Mackay (1990) 1 QdR 451, considered
R v Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1986) 13 FCR 66, considered
Somerset v Stewart (1772) 98 ER 499, considered
Re Gregory (1899) 25 VLR 539, applied
Re Esperalta [1987] VR 236, considered
R v Langdon; Ex parte Langdon (1953) 88 CLR 158, referred to
Robtelmes v Brenan (1906) 4 CLR 395, considered
Mayer v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312, considered
Minister for Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254, referred to
Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508, referred to
Australian Conservation Foundation Incorporated v Commonwealth of Australia (1980) 146 CLR 493, applied
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, considered
Cunliffe v Commonwealth of Australia (1994) 182 CLR 272, considered
McClure v Australian Electoral Commission (1999) 163 ALR 734, appliedUniversal Declaration of Human Rights (1948)
Convention relating to the Status of Refugees (1951)David Clark & Gerard McCoy, Habeas Corpus: Australia, New Zealand, The South Pacific (The Federation Press, 2000)
RJ Sharpe, The Law of Habeas Corpus (2nd Ed) (Clarendon Press, 1989)
Harry Street & Rodney Brazier, de Smith Constitutional and Administrative Law (5th Ed) (Penguin Books, 1985)THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INCORPORATED v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER FOR DEFENCE and THE COMMONWEALTH OF AUSTRALIA
V 899 of 2001
ERIC VADARLIS v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA and WILLIAM JOHN FARMER, SECRETARY AND CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
V 900 of 2001
NORTH J
11 SEPTEMBER 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V889 of 2001
BETWEEN:
THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INCORPORATED
APPLICANTAND:
THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL
SECOND RESPONDENTTHE HONOURABLE PETER REITH, MINISTER FOR DEFENCE
THIRD RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V900 of 2001
BETWEEN:
ERIC VADARLIS
APPLICANTAND:
THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTWILLIAM JOHN FARMER, SECRETARY AND CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
THIRD RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
11 SEPTEMBER 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1Subject to paragraph 2, the respondents release those persons rescued at sea who were brought on board MV Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001, and bring those persons ashore to a place on the mainland of Australia.
2Paragraph 1 operates from 5.00pm Australian Eastern Standard Time on 14 September 2001, or on the determination of any appeal from this decision to the Full Court of the Federal Court of Australia, whichever is later.
3Paragraph 1 does not apply in respect of any of the said persons who indicate to the respondents that they do not wish to be released and brought ashore to a place on the mainland of Australia.
4Liberty is granted to the parties to apply generally as to the implementation of the orders made in paragraph 1.
5(a) Subject to (c) hereof the respondents are to pay to each of the applicants the costs of and incidental to the proceeding commenced by that applicant; and
(b)Subject to (c) hereof the respondents are to pay to Amnesty International Limited and the Human Rights and Equal Opportunity Commission their costs of and incidental to these proceedings; and
(c)Liberty is granted to the respondents to apply by 4.15pm on 13 September 2001 to vary the orders made in subparagraph (a) and (b) hereof.
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
V889 of 2001
BETWEEN:
THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INCORPORATED
APPLICANTAND:
THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL
SECOND RESPONDENTTHE HONOURABLE PETER REITH, MINISTER FOR DEFENCE
THIRD RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V900 of 2001
BETWEEN:
ERIC VADARLIS
APPLICANTAND:
THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTWILLIAM JOHN FARMER, SECRETARY AND CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
THIRD RESPONDENT
JUDGE:
NORTH J
DATE:
11 SEPTEMBER 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE APPLICATIONS, PARTIES AND INTERVENERS
Before the Court are two applications which were filed on 31 August 2001.
The applicant in the first application is the Victorian Council for Civil Liberties Incorporated (VCCL). VCCL is incorporated in Victoria under the Associations Incorporations Act 1981 (Vic). It is a non-government organisation committed to advocating and protecting fundamental rights and freedoms. It has been active in public discussion of the problems facing refugees, and in promoting Australia’s adherence to its international obligations owed to refugees.
The respondents to the first application are the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister for Defence, and the Commonwealth of Australia.
As the case was finally argued VCCL claimed that the respondents were unlawfully holding 433 asylum seekers, whose situation will be outlined shortly, aboard the MV Tampa near Christmas Island. VCCL claimed, under s 39B of the Judiciary Act 1903 (Cth) mandamus and injunctions to enforce compliance with obligations which it said the respondents had under the Migration Act 1958 (Cth) (the Act) to bring these people to Australia, or alternatively, relief in the nature of habeas corpus compelling the respondents to release the 433 people from unlawful detention.
The applicant in the second application is Mr Eric Vadarlis. He is a solicitor practising in Melbourne who seeks to offer legal assistance to the asylum seekers on a pro bono basis. The first respondent to this application is the Minister for Immigration and Multicultural Affairs, and the second respondent is the Commonwealth of Australia. The third respondent was added in the course of the proceedings and is the Secretary and Chief Executive Officer of the Department of Immigration and Multicultural Affairs (DIMA).
Mr Vadarlis made the same claims as VCCL but pursued several additional arguments and claims which will be referred to in detail later. In particular he claimed that he had been prevented from communicating with the asylum seekers and that this amounted to an infringement of his implied constitutional freedom of communication. In respect of this claim he also relied on s 39B of the Judiciary Act to seek orders giving him access to the asylum seekers.
The two applications were heard together. It is convenient to refer to the respondents in both applications as “the respondents”.
Leave was granted by consent of all the parties to Amnesty International Limited (Amnesty) and the Human Rights and Equal Opportunities Commission (HREOC) to intervene in the proceedings limited to the right to file submissions in writing and to be present in Court represented by counsel for the purpose of supplementing the written submissions if necessary. The consequence of the grant of leave to intervene was explained in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 534 as follows:
“An intervener, whether pursuant to s 12 of the ADJR Act, O 6, r 8(1) of the Federal Court Rules, s 78A of the Judiciary Act 1903 (Cth) or otherwise, becomes a party to the proceedings with the benefits and burdens of that status.”
Amnesty is a worldwide movement of more than 1 million members in over 140 countries. Its object is to secure throughout the world observance of the provisions of the Universal Declaration of Human Rights (1948). It has a particular interest in the fair treatment of refugees.
HREOC is established under the Human Rights and Equal Opportunity Act 1986 (Cth) and has a statutory function to seek leave to intervene in proceedings which involve human rights issues (s 11(1)(o)) as defined in s 3 of the Human Rights and Equal Opportunity Act.
Both Amnesty and HREOC filed written submissions, which generally supported the case of the applicants. Mr Vadarlis expressly adopted the submissions filed by HREOC as his own.
THE ROLE OF THE COURT
Questions relating to refugees are matters of spirited debate at present in Australia. The situation of the 433 people rescued by the MV Tampa has attracted considerable public attention and discussion. In these circumstances it is necessary to stress that the role of the Court is strictly confined. It has a duty to apply the law of Australia. It does not have a general power to do what judges personally think is right. Judges of the Court take an oath on appointment to do justice “according to law”. That is the task that I have undertaken in this case. In the following reasons I explain how I have gone about that function. In particular I have defined the legal questions which the Court must answer. The definition of the issues demonstrates that the only matters before the Court concern the legal position of the people rescued by the MV Tampa. Questions of policy concerning the way Australia should treat refugees are solely questions for the government.
In order to determine the legal issues in the case it is first necessary to set out the facts relating to the applications.
THE FACTS
On Sunday 26 August 2001 a 20 metre wooden fishing boat was sinking in the Indian Ocean about 140 kilometres north of Christmas Island.
At the time the MV Tampa was in the vicinity on its way from Fremantle to Singapore. The MV Tampa carried a crew of 27 and was under the command of Captain Arne Rinnan. The MV Tampa is a 49,000 tonne roll on/roll off container ship registered in Norway and was carrying a cargo worth about 20 million dollars. It was licensed to carry no more than 50 people.
Captain Rinnan received a call from Australian authorities asking him to rescue a ship in distress. He agreed, and was guided to the ship by the Australian Coast Guard.
At about 5.00pm Captain Rinnan found 433 people on the sinking ship (these people will be referred to in this judgment for convenience by the neutral, if clumsy, term “the rescuees”). Previously, he had been told that the sinking ship carried 80 people. Nevertheless, he took the rescuees on board and inquired from the Australian Coast Guard where the rescuees should be taken. The Coast Guard responded that they did not know.
The MV Tampa started to head for Indonesia. Several of the rescuees objected and threatened to commit suicide if the Captain did not change course for Christmas Island. Under that pressure the Captain determined to sail towards Christmas Island. When the MV Tampa was close to Christmas Island but outside Australian territorial waters, Captain Rinnan was asked by the Australian authorities to change course for Indonesia. Following this incident the owners engaged a solicitor on behalf of themselves and the master. In a fax sent off the following day to the DIMA, the solicitor, James Neill, related the events of the previous day as follows:
“5.… the Australian Authorities requested he sail to Indonesia and made certain threats. At the time, he was very close to Christmas Island. Had he sailed to Indonesia he would have exposed the vessel and persons on board to a number of potentially dangerous factors across an open ocean which may have resulted in massive loss of life. His view was that by far the safest course was to continue to Christmas Island.
6.At this time the vessel is at Christmas Island. It does not have food and water on board to sustain the passengers and crew for long. Additionally, at present the vessel is lying off shore awaiting instructions / assistance in good weather for discharge of passengers into lighters which are available. Were the weather to turn ugly and this become not possible, there could be dire consequences.
Lastly, please note that ‘James Neill Solicitor’ now acts for Owners and Master. Given that threats have been made about massive fines, they now require that their lawyer be present at any interview or discussion in relation to matters pertinent or relevant to fines, criminal or civil proceedings – either by phone or in person. … In relation to practical matters relevant to the discharge of the passengers please feel free to have all the discussions you like with the Captain, Owners and crew.”
Monday 27 August 2001 saw significant activity on and around the MV Tampa.
The Cabinet Office asked Mr Bill Taylor, the Administrator of Christmas Island, to ensure that no Australian vessel went out to the MV Tampa from Christmas Island. Mr Taylor was told that Cabinet was considering the issue. He was asked to ensure that boats from Christmas Island did not attempt to reach the MV Tampa. Flying Fish Cove, the port at Christmas Island, was then closed. The Harbour Master signed an order that “all boat movements in and out of the cove is prohibited” and this was placed on either side of the jetty. Barriers were erected at the end of the jetty and the public and local authorities on Christmas Island were notified in various ways of the closure of the port. The Administrator advised DIMA that these steps had been taken.
Mr Neville Nixon, an officer of DIMA, spoke by phone to Captain Rinnan. The conversation was confirmed by Ms Phillipa Godwin, First Assistant Secretary, Detention Task Force, DIMA, in a memo dated the same day, 27 August 2001, to Captain Rinnan, as follows:
“This is to confirm your recent telephone conversation with Neville Nixon, DIMA. As Mr Nixon advised, the Australian Government at the highest level formally requests that you not approach Christmas Island and that you stand off at a distance at least equal to your current position – 13.5 nautical miles from the island.
Mr Nixon has advised that you have agreed not to proceed further until advised by the Australian Government.”
At 11.30am Mr Neill, the solicitor acting on behalf of the owners and Captain Rinnan, spoke to Ms Godwin. He confirmed the conversation in a fax dated the same day, 27 August 2001, as follows:
“As discussed at approx 11.30 today the medical situation on board is critical. If it is not addressed immediately people will die shortly.
At this time, four people on board are unconscious, 1 Broken leg and 3 women are pregnant. Additionally diarrhoea is severe and a number of people are in a dangerously dehydrated condition. The ship has now run out of the relevant medical supplies and has no way of feeding these people.
It is a simple matter to send a boat from shore to collect the sickest people, supply food and medical assistance. It could be along side in 30 minutes.
At the request of the Australian Government the vessel is currently just off shore of Christmas Island. If the situation is not resolved soon more drastic action, may have to be taken to prevent loss of life.” [bold in original]
Captain Rinnan contacted the Royal Flying Doctor Service and reported that several rescuees were unconscious, one had a broken leg and two pregnant women were suffering pains. The Royal Flying Doctor Service did not regard the situation as requiring evacuation. Captain Rinnan was, however, concerned at the deterioration in the condition of the rescuees and was concerned about the welfare of his crew.
Nothing of relevance to these proceedings appears to have happened on the next day, Tuesday 28 August 2001.
However, as a result of these mounting concerns, at about 9.00am on Wednesday 29 August, Captain Rinnan took the MV Tampa into Australian territorial waters and stopped about 4 nautical miles from Christmas Island.
In response, within approximately two hours, 45 Special Armed Services (SAS) troops from the Australian Defence Force left Christmas Island and boarded the MV Tampa.
That evening in the House of Representatives the Prime Minister introduced the Border Protection Bill 2001 and moved that it be read a second time. In less than an hour the Bill was passed in the House of Representatives. In the early hours of the following morning the Bill was defeated in the Senate. Its provisions, however, indicate the intentions of the respondents. Some of the relevant provisions were as follows:
“2.Commencement
This Act is taken to have commenced on 29 August 2001 at 9.00am by legal time in the Australian Capital Territory.
…
4.Direction that ship be removed from Australian territorial sea
(1)An officer may, in his or her absolute discretion, direct the master or other person in charge of a ship that is within the outer limits of the territorial sea of Australia to take the ship, and any person on board the ship, outside the territorial sea.
…
5.Enforcement of direction
Where a direction has been given under section 4, an officer may detain the ship, and take it, or cause it to be taken, outside the territorial sea of Australia. For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.
…
8.No proceedings available to prevent removal of ship
Proceedings may not be instituted or continued by any person in any court to prevent a ship, or any persons on board a ship, being removed to a place outside the territorial sea of Australia pursuant to a direction given under section 4.
9.No applications for protection visas
(1)Any application for a protection visa under the Migration Act 1958, made by a person who is on board a ship at the time when a direction is given under section 4 in respect of the ship, is not a valid application.
(2)Section 91F of the Migration Act 1958 applies in relation to an application covered by subsection (1) of this section as if it were an application covered by section 91E of that Act.
10.Act has effect in spite of any other law
This Act has effect in spite of any other law.”
On Thursday 30 August 2001 the Norwegian Ambassador went on board the MV Tampa and was handed a letter signed “Afghan Refugees Now off the coast of Christmas Island”. It stated in part as follows:
“You know well about the long time war and its tragic human consequences and you know about the genocide and massacres going on in our country and thousands of us innocent men, women and children were put in public graveyards, and we hope you understand that keeping view of above mentioned reasons we have no way but to run out of our dear homeland and to seek a peaceful asylum. And until now so many miserable refugees have been seeking asylum in so many countries. In this regard before this Australia has taken some real appreciable initiatives and has given asylum to a high number of refugees from our miserable people. This is why we are whole heartedly and sincerely thankful to you.
We hope you do not forget that we are also from the same miserable and oppressed refugees and now sailing around Christmas Island inside Australian boundaries waiting permit to enter your country.
But your delay while we are in the worst conditions has hurt our feelings. We do not know why we have not been regarded as refugees and deprived from rights of refugees according to International Convention (1951).
We request from Australian authorities and people, at first not to deprive us from the rights that all refugees enjoy in your country. In the case of rejection due to not having anywhere to live on the earth and every moment death is threatening us. We request you to take mercy on the life of 438 men, women and children.”
On Friday 31 August 2001 the two applications presently before the Court were filed. The applicants sought an immediate hearing. The circumstances and outcome of that application were explained in an ex tempore judgment delivered at 9.00pm that evening. Relevantly the judgment stated:
“At approximately 5 pm tonight an application was filed by the Victorian Council of Civil Liberties Incorporated against the Minister for Immigration and Multicultural Affairs, Mr Ruddock, the Attorney-General, Mr Williams, the Minister for Defence, Mr Reith, and the Commonwealth of Australia. At approximately 5.20pm a further application was filed by Mr Eric Vadarlis against Mr Ruddock and the Commonwealth.
These matters were referred to me because I am presently the rostered duty judge. In response to the urgency of the applications the court was convened at approximately 5.40pm. I was told when the court was convened that the respondents, at this time only one of whom, Mr Ruddock, in the first application, was represented by Mr Tracey QC and Mr Star of counsel, had barely been served with the papers. It is of course fundamental to the exercise by the Court of its jurisdiction that all parties have a fair opportunity to be heard and their arguments considered carefully and deliberately.
Consequently, I stood the matter down until 7.15pm to allow the respondents time to instruct Mr Tracey and Mr Star or other counsel. Upon return to the Court Mr Tracey told me that the respondents sought an adjournment of the application until next Monday when the matter would be considered and after the respondents had obtained full instructions and had been able to fully consider their position.
At that point I determined that the ex parte applications sought to be agitated by the respondents would proceed at 2.15pm tomorrow. The question then arose as to whether any orders should be made between that time and 2.15pm tomorrow.
The applicants in each application contended that an order should be made to prevent the respondents from taking any steps to remove the motor vessel Tampa out of the territorial waters of Australia. The basis for seeking these orders was to preserve the authority of the Court to consider the merits of the application tomorrow. The applicants relied upon the oft-cited case of Tait v R (1962) 108 CLR 620 at 624.
In the circumstances that application is compelling. The merits of each of the applications will be determined tomorrow. If the Tampa was removed from Australian waters before then, the Court’s consideration of the issues would have been frustrated. Whether the applicants are correct or the respondents are correct in their cases, the Court cannot allow itself to be thwarted in the performance of its duty.”
In the result the respondents were restrained until the following day from taking any steps to remove the MV Tampa from Australian territorial waters. The application for ex parte relief was adjourned until 11.00am on the following day, Saturday 1 September 2001.
It is necessary to explain briefly the way the proceedings developed because several events which occurred in the course of the proceedings bear upon the determination of the issues now before the Court.
The case commenced at about 11.00am on Saturday 1 September 2001 and shortly afterwards Mr Bennett QC, the Solicitor-General for the Commonwealth, appearing for the respondents, read to the Court an announcement which had just been made by the Prime Minister. The announcement stated:
“I am announcing today that we have reached agreement with the Governments of New Zealand and Nauru for the processing of the people rescued by the MV Tampa.
Under the terms of the agreement, the rescuees will be conveyed to Nauru and New Zealand for initial processing.
New Zealand has agreed to process 150 of those aboard the Tampa. It is envisaged that this will include family groups involving women and children. Those found to be genuine refugees in New Zealand would remain there.
The remainder of the rescuees will be assessed in Nauru and those assessed as having valid claims from Nauru would have access to Australia and other countries willing to share in the settlement of those with valid claims.
Australia will bear the full cost of Nauru's involvement in this exercise.
Arrangements will be made to safely transship the rescuees through a third country. We are currently in discussions with appropriate countries to effect this.
We are also working closely with the International Organisation for Migration and the UNHCR to ensure that these arrangements are managed carefully and that the rescuees receive appropriate counselling and assistance.
Australia will continue to ensure that the rescuees receive all necessary humanitarian assistance while these arrangements are put in place.
I would like to take this opportunity to express my Government's gratitude to the Governments of Nauru and New Zealand for their ready and constructive humanitarian assistance
1 September 2001”
The arrangements will be referred to as “the Nauru/NZ arrangements”.
At about 1.00pm Mr Bennett said:
“Your Honour, my instructions are that the government wishes to commence implementing the arrangements announced by the Prime Minister as soon as possible and if it is possible to do so, tomorrow. In those circumstances, we would ask your Honour to convert these proceedings to a final hearing today and deal with the matter today.”
In order to assess whether this course was practicable I directed, with the consent of the parties, that they deliver contentions of fact and law by 4.15pm that day. That was done. What followed is reflected in the judgment delivered at about 5.45pm as follows:
“In the course of the proceedings today, Mr Bennett, appearing on behalf of the respondents, sought orders that the trial of the action be expedited, that it commence tomorrow and that therefore it replace the anticipated three-stage process of first, today's intended ex parte application, followed by an application for interlocutory orders and then the trial of the action. That would be the conventional course for a matter such as this. The reason for making the application for an expedited trial arose from the statement made this morning by the Prime Minister that an agreement had been reached with New Zealand and Nauru, to process the rescuees on the MV Tampa. It seems from the material before me that that course has been agreed to by the Opposition.
Notwithstanding that agreement or arrangement, the applicants seek to proceed with their application. It appears that they assert rights in the rescuees that they seem to contend will not be recognised or protected by the arrangement announced by the Prime Minister this morning. The request for orders that the trial be expedited so as to start tomorrow is an extraordinary application. The question for me is whether the circumstances are so unusual and the protections for all the parties sufficient to make it proper to take such a step. Ordinarily, the process of litigation is spaced in such a way that sufficient time is given for the interlocutory steps to be taken with some degree of leisure. Obviously, the proposal does not allow any such leisure.
Ultimately, the consideration which must guide me is the interests of justice in all the circumstances. It is very obvious that the interests of the rescuees will be best served by the court coming to a final conclusion as quickly as is possible. With that in mind, there has been considerable discussion through the afternoon about procedural methods by which this unusual step could be taken. Firstly, I asked the parties to file contentions of fact and law by 4.15pm so that the essence of the cases made by each of them could be understood a little better. With very commendable cooperation and speed, that was done.
As a result of the resumption of the proceedings shortly after 4.15pm, certain other procedural requirements have been isolated. I propose to make directions in relation to each of them. They, however, represent only the first examples of the sort of cooperation and flexibility which I envisage will be necessary in order to achieve the expedited hearing, which I propose to order. I am confident from the approach that counsel have taken and the absolute necessity that such a flexibility requires, that counsel will cooperate with each other and with the Court in order to make the trial workable.
I have indicated, particularly to the applicants, that in the event that they see the need at the end of the respondents' case to reopen their case, for the reason that they are taken by surprise by anything raised by the respondents, such an application would be viewed in the context of the expedition that has been accorded to the case. The ordinary rules would be relaxed to a considerable degree. In the end, of course, it will be a matter for judgment if such an application arises.
Therefore, I order that:
1.The trial of the applications will commence at 11 am tomorrow, Sunday 2 September 2001.
And I direct:
2.(a) That Captain Rinnan and Lieutenant Colonel Gus Gilmore attend the proceeding on 2 September by telephone for the purpose of being examined.
(b)That the deponent Farmer attend for cross‑examination on his affidavit filed on 1 September 2001.
(c) That the Department of Immigration and Multicultural Affairs disclose and make available for inspection by 10.15am on 2 September 2001, all documents concerning the immigration status and/or custody and detention of the rescuees on MV Tampa.
(d) That by 10.15am on 2 September 2001, the Department of Defence disclose and produce for inspection all relevant documents relating to the presence of the SAS on MV Tampa, including orders to Lieutenant Colonel Gilmore and the witness, C1, and directions relating to and reports concerning the control of the port at Christmas Island, including any relevant documentary information concerning boats other than SAS boats approaching the MV Tampa.
(e) The respondents disclose and produce for inspection any letter from the rescuees to the respondents or any of them.
(f) That the witness described as C1, who is to be called by the respondents, attend the proceedings on 2 September 2001 by telephone from the MV Tampa.
(g) The respondent is not obliged to produce for inspection documents referred to in subparagraphs (c), (d) and (e) for which privilege is claimed and which are listed in a document delivered to the applicants at 10.15am on 2 September 2001.
3.Costs are reserved.”
The trial commenced at about 11.00am on Sunday 2 September 2001. With commendable cooperation and speed the parties overnight formulated a statement of agreed facts. The statement became part of the evidence in the case. It read:
“1.The MV Tampa (“the ship”) rescued certain persons (“the rescuees”) on the High Seas.
2.The rescuees boarded the Ship voluntarily.
3.The Ship commenced proceeding towards an Indonesian port. Certain of the rescuees objected to this course and threatened to commit suicide whereupon the master altered course at their request for Christmas Island.
4.The Ship was refused permission to enter Australian Territorial Waters.
5.Nevertheless it did so. It is in Australian Territorial Waters but not in a port and therefore not in the Migration Zone.
6.There are 433 rescuees on board the ship, anchored about 4 nautical miles off Christmas Island and outside the port. They are not part of the crew of the MV Tampa.
7.The rescuees were picked up by the MV Tampa at the request of the Australian authorities.
8.They are not allowed to leave the ship except to leave Australian territorial waters. The Ship is free to leave Australian territorial waters.
9.No other vessels are permitted to approach the ship without the authorisation of the Commonwealth, whether through the SAS officers on board or otherwise who would refuse permission unless it was for the purpose of moving the rescuees out of Australian territorial waters and then subject to safety considerations and satisfaction of a bona fide intention not to move them to Australia.
10.Their movements on the ship are controlled by SAS officers and not by the Captain of the ship.
11.SAS officers boarded the ship because it contained unlawful non-citizens who did not hold visas to enter Australia. The officers included SAS medical personnel whose purpose was to render medical and humanitarian assistance in response to a distress signal. Part of the purpose was to provide security for the crew. Another part of the purpose was to deal with any medical emergencies and thus remove the basis for the distress signal and facilitate the departure of the ship from Australian Waters.
12.The ship has been forbidden by Australian authorities from proceeding any closer to Christmas Island and from entering the port. Thus far that instruction has been obeyed. The effect of the continuing presence of the SAS officers is that the captain and crew are unlikely to attempt to move the ship into the port. This is a consequence desired by the Australian Government.
14.None of the asylum seekers hold a visa entitling them to enter Australia. Therefore they would be unlawful non-citizens for the purposes of s.14 of the Migration Act if they entered the “migration zone” as that phrase is defined in s.5 of the Migration Act.
15.The evidence justifies an inference that many of the rescuees would, if entitled, wish to apply for protection visas, and would wish to leave the ship and enter Australia.
16.The rescuees have no access to communications with persons off the ship and persons off the ship are unable to communicate with them.”
[numbering incorrect in original.]
A further fact was later agreed as follows:
“It is, and at all relevant times has been, the view of the Captain of the Tampa that he will not sail the Tampa out of Australian territorial waters while the rescuees are on board.”
Despite the huge effort required – Mr Bennett said 100 people had been involved overnight – discovery was completed by the start of the hearing and the parties agreed on the documents to be tendered. As a result of the tender of the statement of agreed facts, the number of witnesses required to be called was significantly reduced.
Mr Bennett then indicated that the respondents would be seeking an undertaking as to damages from the applicants if they sought the continuance of the interim injunction after the conclusion of the hearing that day.
At that point I required each of the parties to briefly outline their arguments so that the evidence could be more easily understood. Following these outlines a number of affidavits were formally read as part of the evidence of each of the parties. Only one deponent was cross-examined, namely, Mr William John Farmer, the third respondent in the second application. I will return to his evidence in due course.
Mr Bennett then tendered comments made by the Prime Minister at a press conference held earlier on that day. As it bears on the issues in this case it should be included. It stated:
“Ladies and gentlemen I can announce that an agreement has been reached with the Government of Papua New Guinea for the trans-shipment of the people from the Tampa through Port Moresby and then via aircraft to both Nauru and New Zealand. The proposal is that the people should be transferred from the Tampa to the amphibious troop ship Manoora which is a very large vessel capable of travelling six thousand kilometres. It’s a large troop ship that has extensive medical facilities on board including I understand two operating theatres. Troops remain on this ship for weeks on end. It is within the inevitable constraints of any vessel quite comfortable and it can adequately accommodate all of the people who will be taken from the Tampa.
I am told by the Chief of the Defence Force through the Defence Minister that as I speak the Manoora is ready to take people on board. The Manoora is now ready to take people on board. The idea is that they should be transferred to the Manoora then the Manoora will sail to Port Moresby and then they will be transferred to aircraft that will take them to Nauru and to New Zealand. I can also inform you that a party comprising representatives from the Department of Immigration and other relevant Federal Government departments are on the way to Nauru with a view to putting in hand preparations for the construction of temporary accommodation by way of a tent facility for the people to be received on that island.
So in quite a real sense the arrangements are now in place. We have achieved an humanitarian outcome. All of the people can be properly cared for. They will on my advice be far more comfortable on the Manoora than they are on the Tampa. I repeat that the Manoora is now ready to take people on board. It could begin to take people on board today and complete that process tomorrow. So I want it to be understood that all the arrangements that were necessary to put in place the execution of the arrangement that I negotiated with the governments of New Zealand and Nauru yesterday, all of the things that are necessary to give effect to that are now in place. And from our point of view the government is ready, the Defence Forces are ready, the Immigration authorities are ready to give effect to that plan. I want to record my deep appreciation to the Prime Minister of Papua New Guinea, Sir Mekere Morauta, for the cooperation and the willingness of the government of that country to cooperate with Australia in relation to this issue. This is a truly Pacific solution to a problem which involved the governments of Australia, New Zealand, Nauru and Papua New Guinea and they have all worked together and I again express on behalf of the Government and the Australian people our thanks to the governments and the people of those three countries for their willingness to cooperate. I believe that the humanitarian consideration and the best welfare of the people now on the vessel will be better met if they can be transferred as soon as possible to the Manoora where the conditions are obviously more comfortable than what they are on the Tampa.”
Then, just before 6.00pm, I said to the parties:
“I think it time to discuss timetabling and the issues that are left. The position is that I assess that the submissions that the Court will require will take some time. The matters that are raised are novel and they are not easy and I am not prepared to have them argued at the tail-end of the day in circumstances where necessarily everyone is weary, including myself. The Court has sat from Friday at various times right through the weekend. The matter must be dealt with in accordance with proper and careful procedures and proper deliberation. That won't be the case if the matter proceeds to submissions tonight.
Consequently it seems to me there needs to be considered (a) the fate of the injunction and (b) an application, if there is to be any, in relation to undertakings as to damages. But given that that is where the case stands, I turned my mind to the usual process adopted by this Court in the conduct of any litigation. One of the central procedures used by this Court, as no doubt all those at the bar table know, is the process of mediation - mediation by either outside mediators or mediators who are employed by the Court.
The process of mediation has proved to be extremely successful in directing parties' attention to issues in cases and allowing them to see the results in much more flexible terms than the Court might be able to deliver by a judgment according to the strict letter of the law.
On the assumption that the case will not conclude tonight, it seems to me that a moment has been reached when that process is particularly appropriate in this case. I will shortly hear whether the parties are prepared to engage in a process of mediation with a Registrar of the Court who is immediately available, that process to be strictly limited in time, and if unsuccessful, then I will proceed to hear any applications relating to the future of the injunctions and/or any application for an undertaking as to damages. I will hear those matters to conclusion this evening and propose to list the remainder of the case to commence tomorrow morning.
It is probably best I think for the parties to have a short time to consider whether they are prepared to engage in the process of mediation. That should be seen against the background that there has been evidence given this afternoon, particularly evidence relating to the intentions of the government consequent upon the arrangement that has been reached. That must be seen against the background of the various arguments that have been outlined and the parties will have to assess the strength of those arguments. It seems to be undoubted that the applicants have moved the Court out of strong feelings based on conscience and justice and there may be room for those concerns to be addressed in some sort of procedures in consultation with the respondents.
Having had extensive experience of the success of mediation, I am fairly committed to that course in this case. The Court has power to order the parties into mediation compulsorily. I would prefer not to exercise that power, but may be inclined to do so unless I can be dissuaded. Consequently, I propose to adjourn until 6.10pm so that I can return to hear argument on the question whether the matter should be referred to mediation. If the parties accept that it should be, then there is no reason why the mediation could not start immediately on the basis that I would resume any other applications at 7.30pm tonight.”
Neither the respondents nor the VCCL, agreed to mediation. Nonetheless the matter was referred to Registrar Wood for mediation. Despite the initial reluctance to enter mediation, at 9.45pm the parties announced an agreement in principle. The agreement was reduced to writing and read into transcript at the commencement of the hearing on the next day. It was slightly varied in the evening of 3 September 2001 by adding paragraph 4.1A. The variation permitted the respondents to remove a number of persons from the MV Tampa suspected of committing people smuggling offences. As the agreement is relevant to the matters in question, it is set out as follows:
1. The interlocutory injunction is to be discharged.
2.No application is to be made for an undertaking as to damages in relation to the undertakings and other terms of this agreement.
3.The rescuees presently on board the MV Tampa will be transferred to the HMAS Manoora.
4. The Respondents undertake that:
5.1 None of the rescuees will be required to leave HMAS Manoora or removed from it until the determination of the proceedings before North J and any appeal by the Respondents to the Full Federal Court.
4.1AClause 4.1 shall not prevent any of the rescuees who it is intended to charge with an offence being arrested and brought to any part of Australia or Christmas Island.
4.2Notwithstanding 4.1 the Respondents or any of them may, if any of the rescuees so request, remove any such rescuee or permit him or her to leave for the purpose of transportation to any country requested by such rescuee and agreed to by the Respondents or any of them.
4.3If the Respondents are unsuccessful in these proceedings and if the Court makes an order for the return of any or all of the rescuees to Australia (other than rescuees referred to in paragraph 4.2), the Respondents will comply with any such order.
4.4In the event that the Respondents are unsuccessful in any appeal to the Full Court of the Federal Court and seek leave to appeal to the High Court of Australia, they are at liberty to apply for a stay of the order on such terms as may be agreed or determined by the court to which the application is made.
5.The Third Respondent agrees that the general effect of this Agreement will be made known to the rescuees.
6.The parties agree that this litigation, and any appeal flowing from it, will be conducted, on the basis of the evidence given at the trial including the agreed facts and that no party will seek relief or assert rights or legal consequences on the basis that the status of any alleged detention of the rescuees on HMAS Manoora is different to the status of any alleged detention on the MV Tampa.
7. The terms of this agreement are accepted by HREOC.
8.All parties will oppose intervention by any party not willing to be bound by the terms of this agreement (or in case of HREOC, any party not willing to be bound by the terms of clause 6 of this agreement).”
Following the agreement the rescuees were transferred from the MV Tampa to the HMAS Manoora. The HMAS Manoora then commenced the voyage towards Port Moresby.
OVERVIEW OF THE ARGUMENTS
For ease of understanding the remainder of these reasons, it is useful to briefly outline the arguments which will now be considered.
The order for release argument. On the basis that the Act does not apply to the situation of the rescuees, the applicants claim that the rescuees were detained by the respondents on board the MV Tampa without any legal authority. The applicants asked the Court to order the respondents to release the rescuees. The respondents agree that the Act does not apply to the situation of the rescuees, and also that an order for release would be made if the rescuees were detained without lawful authority. However, the respondents contended that the rescuees were not detained by the respondents, but were free to go anywhere other than Australia.
The power to expel argument. Again on the basis that the Act does not apply to the rescuees the applicants claim that the respondents have no lawful authority to expel the rescuees from Australia. They contend that the Court should grant an injunction restraining the respondents from expelling the rescuees from Australia. This argument raises the question of the applicants’ standing to seek such relief.
The section 245F argument. The applicants claim that s 245F(9) of the Act applies to the situation of the rescuees and requires the respondents to bring them to the mainland of Australia. They seek mandamus to compel the respondents to perform that statutory duty. The respondents contended that the Act does not apply to the situation of the rescuees, and, in any event, the applicants do not have standing to bring the claim.
The section 189 argument. Mr Vadarlis claims that s 189 of the Act applies to the situation of the rescuees and requires the respondents to take the rescuees into detention. He seeks mandamus to compel the performance by the respondents of this duty. Again the respondents argued, amongst other matters, that the Act does not apply to the situation of the rescuees, and, in any event, the applicants do not have standing to bring the claim.
The freedom of communication argument. Mr Vadarlis argued that the respondents had prevented him from communicating with the rescuees and had thereby denied him his implied constitutional freedom of communication. He seeks an injunction and mandamus to allow him to give legal advice to the rescuees.
THE ORDER FOR RELEASE ARGUMENT
The process of an application for the grant of a writ of habeas corpus is an ancient procedure whereby the Court may order the release of a person who is detained without lawful authority. The Latin expression habeas corpus, although quite widely understood, is rather outdated: see Kelleher v Corrective Services Commission of New South Wales (1987) 8 NSWLR 423 at 424 per Priestley JA. I will mainly use the more modern description “application for an order for release” in this judgment.
In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, Brennan, Deane and Dawson JJ said at 19:
“Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, 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. 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]
Their Honours made reference to a passage in the judgment of Deane J in Re Bolton & Another; Ex parte Beane (1987) 162 CLR 514 where he said at 528-9:
“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. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.”
In Lim, McHugh J concurred with Brennan, Deane and Dawson JJ, stating at 63:
“Absent a statutory power of detention, no public official has any power to detain an alien who has entered the country whether or not that person’s entry constituted an illegal entry.”
The ancient process involves two steps. The first step is the making of an order nisi for the issue of a writ of habeas corpus which requires the person holding the detainee to bring the detainee to the court and show cause why the detention is lawful. If, on the hearing, the detention cannot be justified the order nisi is made absolute and the court orders that the detainee be released.
The respondents did not contest that this Court has jurisdiction in this case to make an order of such a nature. They were correct in this.
The respondents also did not deny that the applicants have standing to bring this aspect of the application. In this the respondents were also correct: 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 respondents’ answer to the claim for an order for release of the rescuees was that the rescuees were not detained by the respondents in the sense required for the making of such an order.
Mr Bennett relied on Bird v Jones (1845) 115 ER 668, a case in which it was claimed that the plaintiff was falsely imprisoned. In that case, Williams J outlined the facts at 670 as follows:
“A part of Hammersmith Bridge, which is generally used as a public footway, was appropriated for seats to view a regatta on the river, and separated for that purpose from the carriage way by a temporary fence. The plaintiff insisted upon passing along the part so appropriated, and attempted to climb over the fence. The defendant (clerk of the Bridge Company) pulled him back; but the plaintiff succeeded in climbing over the fence. The defendant then stationed two policemen to prevent, and they did prevent, the plaintiff from proceeding forwards along the footway in the direction he wished to go. The plaintiff, however, was at the same time told that he might go back into the carriage way and proceed to the other side of the bridge, if he pleased. The plaintiff refused to do so, and remained where he was so obstructed, about half an hour.”
Coleridge, Williams and Patteson JJ held that the plaintiff had not been falsely imprisoned. Coleridge J said at 669:
“But, although thus obstructed, the plaintiff was at liberty to move his person and go in any other direction, at his free will and pleasure: and no actual force or restraint on his person was used, unless the obstruction before mentioned amounts to so much.
…
And I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go withersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.”
Williams J said at 670:
“About the meaning of the word imprisonment, and the definitions of it usually given, there is so little doubt that any difference of opinion is scarcely possible. Certainly, so far as I am aware, none such exists upon the present occasion. The difficulty, whatever it may be, arises when the general rule is applied to the facts of a particular case.”
On the facts of Bird v Jones, Lord Denman CJ came to the conclusion that the plaintiff had been imprisoned.
Mr Bennett relied on this case as defining in principle what amounts to detention for the purposes of an application for an order for release. But in truth it was a case determined on its own facts. Those facts are very far from the facts of the present case. For that reason it is of limited assistance in resolving the issues which arise in the present case.
In the present case the distinction between partial and total restraint of freedom distracts the focus from the essential issue. It may be accepted that as far as the respondents were concerned the rescuees were free to go anywhere other than Australia and hence were only partially restrained. But the question here is whether that freedom is real or illusory. As Townley J said in Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26 at 30:
“If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.”
Mr Bennett contended that the Court must view the opportunities for escape from custody against the background of the circumstances in which the custody arose. He said that the custody of the rescuees was “self-inflicted”. They were only brought towards Australia because several had threatened to commit suicide if Captain Rinnan continued to sail to Indonesia after rescuing them. They demanded to be taken to Christmas Island.
To describe the plight of the rescuees as self-inflicted is not a balanced view of the full circumstances of their situation. The evidence is that Captain Rinnan decided to change course from Indonesia to Australia because of threats by five men to jump overboard. There is no evidence that any of the other 428 rescuees played any direct part in inducing Captain Rinnan to head for Australia. Further, the rescuees were saved from a sinking ship. They did not contemplate the events that took them aboard the MV Tampa. Moreover, the immediate event that gave rise to the boarding of the MV Tampa by the SAS was the decision of Captain Rinnan to enter Australian territorial waters. He did so in response to what he regarded as a medical emergency. These developments could not have been foreseen by the rescuees.
In addition, it is probable that a significant number of the rescuees are people genuinely fearing persecution in Afghanistan. Prime Minister Helen Clark of New Zealand said in a media statement concerning the Nauru/NZ arrangements on 1 September 2001:
“… asylum seekers from Afghanistan flee from one of the world’s most repressive regimes.
Human rights abuses are common, one quarter of children die by the age of five and 3.6 million Afghans have become refugees.
The next planned refugee arrivals in New Zealand under its quota arrangements with the UNHCR are also Afghans.”
It is notorious that a significant proportion of asylum seekers from Afghanistan processed through asylum status systems qualify as refugees under the Convention relating to the Status of Refugees (1951) (the Refugees Convention). Once assessed as refugees, this means that they are recognised as persons fleeing from persecution in Afghanistan. While such people no doubt make decisions about their lives, those decisions should be seen against the background of the pressures generated by flight from persecution.
The totality of the circumstances of the rescuees is to be considered and it is not adequately described as “self-inflicted” in relation to a significant number of the rescuees.
Then Mr Bennett argued that the rescuees were not detained because there were three avenues of escape open to them.
One of the means of escape was to leave with anybody who was prepared to take them from the MV Tampa. There is no evidence that there is any such person or body. None has so far come forward. The chances of any such offer being made is limited because the number of rescuees is so large. The nearest port was closed by the respondents to stop any local ships approaching. There was a limit on how long the rescuees could remain on board the MV Tampa as it could not accommodate them for long. They stayed on the deck under a tarpaulin and in five empty shipping containers. The suggested means of egress was not a real option. In the circumstances it is mere speculation.
However, Mr Vadarlis also seeks orders for the removal by the respondents of some of the obstacles placed in the way of his communication with the rescuees. For instance, the closure of the port at Flying Fish Cove prevents him from seeking access to the MV Tampa. My tentative view is that Mr Vadarlis has standing to agitate this aspect of the claim. However, no detailed argument was addressed on this question.
In the end it is not necessary to come to a final view on this part Mr Vadarlis’ case. As I have determined the respondents are obliged to release the rescuees, there is no practical need for the specific relief sought under this head in favour of Mr Vadarlis.
CONCLUSION
I have determined that the rescuees are entitled to be released by the respondents and brought to the Australian mainland.
The orders to be made will allow the respondents until 5.00pm Australian Eastern Standard Time on 14 September 2001, or the determination of any appeal to the Full Court of the Federal Court of Australia, whichever is later, to release the rescuees and bring them to the Australian mainland. This delay recognises cl 4.1 of the agreement reached between the parties and referred to in par 42 of these reasons and the practical difficulties that may attend the implementation of the orders. I will reserve liberty to all parties to apply generally in relation to the implementation of the orders.
COSTS
The order for costs will require the respondents to pay the applicants’ costs and the intervener’s costs on the principle that costs follow the event. For the purposes of the award of costs the interveners are parties to the proceedings: see par 8 of these reasons. As I have heard no argument on the question of costs, liberty will be reserved to all parties and interveners to apply by 4.15pm on 13 September 2001 to vary the orders as to costs.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 11 September 2001
Counsel for the Applicant V899/01: Mr JWK Burnside QC and Mr CM Maxwell QC, with Mr JP Manetta Solicitor for the Applicant V899/01: Holding Redlich Counsel for the Applicant V900/01: Dr G Griffith QC and Mr JI Fajgenbaum QC, with Ms DS Mortimer and Ms K Kemp Solicitor for the Applicant V900/01: Vadarlis & Associates Counsel for the Respondent V899/01 & V900/01: Mr D Bennett QC, Mr RRS Tracey QC, with Mr D Star and Mr G Hill Solicitor for the Respondent
V899/01 & V900/01:Australian Government Solicitor Counsel for Intervener:
(Amnesty)Mr B Zichy-Woinarski QC and Mr GT Pagone QC, with Mr AD Lang Solicitor for Intervener:
(Amnesty)Slater & Gordon Counsel for Intervener:
(HREOC)Ms K. Eastman Solicitor for Intervener:
(HREOC)Human Rights and Equal Opportunity Commission Date of Hearing: 2-5 September 2001 Date of Judgment: 11 September 2001
16
7
0