31:
661:. They argued that the Act "covered the field", that is, it was so comprehensive that it demonstrated an intention to completely displace any other executive powers in the subject area (the concept of "covering the field" usually refers to the way that federal laws can displace state laws if they show an intention to be the only law with respect to the subject matter, see
753:
indicated that it seemed that the last time the prerogative power had been used was in 1771. He did not consider it necessary to decide conclusively whether the power still existed or not, saying that it was sufficient when considering whether legislation had superseded the power to know that it was at best questionable whether the power even remained in existence.
740:
Australian soil it closed a possible avenue out of a situation in which they had been placed by other factors." He also found that just because travelling to Nauru or New
Zealand under the Pacific Solution was the only real exit from the situation for the rescuees, that did not mean the Government was responsible for detaining them.
764:
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
715:
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 the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community , from entering.
599:
Ultimately, North granted a writ of habeas corpus, which he preferred to describe more simply as "an order for release." He found that the
Government had no statutory authority to detain the asylum seekers, and since there was no prerogative power to detain them, they were being held unlawfully and
575:
where it could go, by closing the port at
Christmas Island, and by making decisions about what would happen to them without consulting them. North added that "the presence of 45 SAS troops, armed and in combat fatigues, is likely to have led the rescuees to the conclusion that they were bound to do
735:
had not replaced the prerogative power in this case. He said that the question was whether the Act "evinces a clear and unambiguous intention to deprive the
Executive of the power to prevent entry bypreventing a vessel from docking at an Australian port and adopting the means necessary to achieve
550:
On the other hand, the
Government argued that the non-citizens (whom they described as "unlawful non-citizens") were not being detained at all, and contended that they were free to go anywhere they pleased, with the exception of Australia. They also argued that even if the non-citizens were being
769:
As such, there was no non-statutory power to detain the rescuees, and the
Government had not even attempted to rely on any statutory power in this case. Black agreed with Judge North's original conclusion that the rescuees were on the facts detained, and as such, he agreed with North's orders to
490:
Over the night of 1 September, VCCL, Vadarlis and the
Government agreed upon a statement of facts for the case, so that the proceedings could run faster. Approximately 100 people were involved on the Government side alone in working on the statement and preparing documents for the next morning's
739:
Finally, on the issue of whether a writ of habeas corpus should be issued, French said that the rescuees were not in fact under detention by the
Government, and thus there could be no order made to release them. He said that "to the extent that the Commonwealth prevented the rescuees landing on
752:
Black, citing a range of authorities from case law and academic works, decided that although there probably once was a prerogative power to exclude non-citizens, it had fallen into disuse and was no longer considered a valid prerogative power by the end of the 19th century. Indeed, one source
809:
could no longer be challenged. However, in refusing special leave, the court did say that the question of the validity of the new Act, and the question of the nature of the prerogative power of the
Government were important questions, which should be considered in an appropriate case.
579:
North then considered whether there was a prerogative power which could be exercised to detain the asylum seekers. He found that it was unlikely that such a power existed at all, and even if it once did, then it had been replaced by the statutory scheme in the
246:
One of the key issues in the case, both at trial and on appeal, was the nature of the executive power of government. There are several sources of executive power, but the source in consideration in this case was the prerogative power of government.
546:
did not apply to the situation of these asylum seekers, then they were being detained unlawfully, and that no-one in Australia, regardless of their citizenship status, could be detained unlawfully or arbitrarily, and so they should be released.
1313:
447:
from Australian waters. North thought there was a strong basis for making such an order, but decided that he would make a final decision the next morning. Nevertheless, North warned that the asylum seekers should not be moved off the
710:
Justice French found that there is indeed a prerogative power to prevent the entry of non-citizens into Australia, and as a corollary, the power to do various things that are necessary to prevent such an entry. He said that:
338:). Initially the Captain sought to take the rescuees to Indonesia, but they objected, with some threatening to commit suicide if they were not taken to Australia. Some of the people required medical attention, and the
491:
hearing. The trial started later in the morning, and the court started hearing evidence, but later that day it was announced that under the Pacific Solution, the Government planned to transfer the asylum seekers to
278:, or lost over time through disuse. A statute can completely replace a prerogative power (extinguish it), or it can merely define how decisions should be made, and what factors to consider, when exercising a power.
748:
Chief Justice Black dissented, finding that although the executive does have the power to exclude or expel non-citizens from within the country, in Australia that power is completely contained within legislation.
570:
North decided that the asylum seekers (which he referred to as "rescuees") were in fact being detained by the Government. He found that the Government did indeed intend to control the rescuees, by directing the
760:, which provided "for a very comprehensive regime" about the entry into Australia of non-citizens, was exclusive and did displace any remnant of prerogative power that remained on the subject. He said that:
619:
The Government quickly appealed to the Full Court of the Federal Court of Australia, and on 12 September an application was granted to fast-track the proceedings. The arguments were heard on 13 September.
482:. As such, the Government asked that the case should be concluded that day, so that the Solution could be implemented. North decided that the trial should start the following day, on 2 September.
805:
to the High Court on 27 November, but the application was rejected, since by that time all of the asylum seekers had been transferred to Nauru or New Zealand, and their original detention on the
652:
to prevent the rescuees from entering Australia, and the complementary power to detain the rescuees for the purposes of expelling them from Australia. This was the principal issue in the appeal.
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was valid. The issue was appealed to the High Court of Australia (which has jurisdiction to hear appeals from Nauru under the Nauru (High Court Appeals Act) 1976 ), in the case of
1323:
798:
on the matter, since the decision of North at first instance and Black in dissent at appeal were based on the fact that the Government was not exercising a statutory power.
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The Government argued that Judge North had erred in his judgment on a number of matters. They argued that North had made incorrect findings of fact, and that in truth:
368:
This action prompted the Victorian Council for Civil Liberties (VCCL) to take action. Along with Victorian solicitor Eric Vadarlis, they initiated proceedings in the
946:
1190:
542:. As such, they argued that the asylum seekers should be taken to the mainland and be allowed to apply for visas. Alternatively, they argued that if the
680:"If there was no such executive power, whether the rescuees were subject to a restraint attributable to the Commonwealth and amenable to habeas corpus."
877:
225:(an order for the asylum seekers to be released). The case is significant because it is one of the few cases to consider the nature and scope of the
1318:
909:
765:
regard to what I have concluded about the nature and the uncertainty of the prerogative or executive power asserted on behalf of the Commonwealth.
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French said that this "gatekeeping" function had been recognised in a number of English cases, including an 1837 case concerning the power of the
526:(which regulates immigration) applied to the asylum seekers, and the normal procedures for dealing with other non-citizens should be applied. The
1349:
361:
declared a state of emergency and entered Australian waters. About four nautical miles offshore, the ship was stopped and boarded by forty-five
1497:
655:
The VCCL and Vadarlis again argued that if there was such a prerogative power, it had been completely replaced by the statutory scheme in the
677:"Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees and their detention for that purpose.
397:
294:
1287:
1185:
282:
154:
662:
1729:
1148:
821:. The detainees also sought the issue of writs of habeas corpus, but the Supreme Court found that the detention scheme under Nauru's
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presiding. Both VCCL and Vadarlis argued that the court should immediately make an order preventing the Government from removing the
1734:
1354:
1759:
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that result". He found that the Act was a positive conferral of executive power, and did not clearly show such an intention.
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the rescuees were not detained because they had the option of going to Nauru or New Zealand under the Pacific Solution.
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offshore) to request permission to enter Australian waters and unload the asylum seekers, but permission was refused.
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to expel or exclude non-citizens from Australia, incorporated within the executive power of the Commonwealth under
1744:
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362:
217:). The Victorian Council for Civil Liberties (now Liberty Victoria), and solicitor Eric Vadarlis, were seeking a
513:, and that evening an agreement was reached, which allowed the Government to transfer the asylum seekers to the
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or the people on it) was still outstanding, and an agreement could not be reached. North sent the parties to
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which gave statutory authorisation to the actions of the Government in detaining the asylum seekers on the
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to deal with non-citizens. North relied on a number of authorities, including a 1906 case of the
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on 31 August, at 5.00 p.m. Melbourne time, and the court was convened by 5.40 p.m., with Judge
230:
926:
Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs
91:
Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs
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1364:
1314:
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs
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French also decided that, although statutes are capable of replacing prerogative powers, the
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297:, the executive functions of government in Australia are carried out from day to day by the
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VCCL and Vadarlis made two main arguments. Firstly, they argued that the provisions of the
327:
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to eject non-citizens, and a 1906 case concerning the deportation of foreign workers from
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The court reconvened on the morning of 1 September, but while proceedings were underway,
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The various Government parties were represented by a team of lawyers including the
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North rejected a number of other arguments based on particular provisions of the
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In Australia, it is generally accepted that the prerogative power is included in
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They also argued that North erred in finding that the Government did not have a
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and three Ministers, the Minister for Immigration and Multicultural Affairs,
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In 2004, the scheme of immigration detention in Nauru was challenged in the
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did empower the Government to detain all non-citizens, under the system of
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534:, but it also gave non-citizens certain rights, such as the right to seek
274:. The prerogative powers are not unlimited, and they can be superseded by
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rescued 433 people, asylum seekers bound for Australia, and of mainly
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background, from their wooden fishing boat. The boat was sinking in
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112:, application to the High Court for special leave to appeal refused
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The Full Court handed down its decision on 18 September. Justice
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found that "the question to-day is one of statutory authority."
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The issue of the injunction (which prevented the removal of the
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intervened in the case, generally supporting VCCL and Vadarlis.
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1456:
794:. This would seem to rule out any prospect of an appeal to the
725:
263:
203:
1037:
Border Protection (Validation and Enforcement Powers) Act 2001
784:
Border Protection (Validation and Enforcement Powers) Act 2001
270:. The Royal Prerogative was generally said to derive from the
1405:
1324:
Plaintiff M70/2011 v Minister for Immigration and Citizenship
1050:
Vadarlis v Minister for Immigration and Multicultural Affairs
475:
342:
then proceeded to the nearest port, at Christmas Island. The
169:
the Government did not unlawfully detain the rescuees on the
106:
Vadarlis v Minister for Immigration and Multicultural Affairs
584:, which now identified and regulated all the powers of the
567:
Justice North delivered his decision on 11 September 2001.
419:
well known for their public involvement in refugee law and
250:
The concept of prerogative power, often referred to in the
218:
641:
the circumstances of the rescuees were self-inflicted, and
1400:
452:
in the meantime, and this had the effect of a temporary
627:
the rescuees were not being detained by the SAS troops,
365:
troops, who took control of the ship and anchored it.
258:, consists of various powers belonging exclusively to
194:
on 18 September 2001. It concerned the actions of the
555:
authority for their detention, the Government had a
415:. VCCL and Vadarlis were represented by a number of
1191:
List of Australian immigration detention facilities
672:summarised the key issues in the appeal as being:
888:(Fourth ed.). Sydney: The Federation Press.
607:on the basis that VCCL and Vadarlis did not have
213:from entering Australia in late August 2001 (see
1721:
1319:Minister for Immigration and Citizenship v SZMDS
1350:Department of Immigration and Border Protection
1498:Minister for Immigration and Border Protection
559:to expel non-citizens from Australian waters.
190:) was an Australian court case decided in the
157:, and the power has not been abrogated by the
1142:
694:delivered the majority opinion, with Justice
398:Human Rights and Equal Opportunity Commission
1043:
989: at per French J starting paragraph 127.
908:: CS1 maint: multiple names: authors list (
1288:Protocol Relating to the Status of Refugees
1186:Australian immigration detention facilities
16:Judgement of the Federal Court of Australia
1149:
1135:
1017:
1008: at per Black CJ starting paragraph 1.
663:section 109 of the Australian Constitution
29:
1011:
872:
870:
868:
866:
372:for a writ of habeas corpus, against the
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155:section 61 of the Australian Constitution
978:
976:
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886:Australian Constitutional Law and Theory
470:, under which the asylum seekers on the
53:Ruddock & Ors v Vadarlis & Ors
997:
995:
921:
919:
502:for transfer to Nauru and New Zealand.
346:stopped at the boundary of Australia's
1722:
1094:
863:
551:detained, then despite there being no
430:
1130:
1063:
965:
833:upheld the Supreme Court's decision.
801:Vadarlis did make an application for
630:in reality it was the captain of the
1391:Australasian Correctional Management
992:
916:
562:
1580:2010 Christmas Island boat disaster
1477:United Nations Human Rights Council
1375:Maritime Border Command (Australia)
1085:Nauru (High Court Appeals Act) 1976
1078:
817:by three detainees, in the case of
756:Ultimately, Black decided that the
304:
13:
1360:Australian Human Rights Commission
1334:Plaintiff M61/2010E v Commonwealth
1329:Plaintiff S157/2002 v Commonwealth
1257:Indefinite detention without trial
1181:Immigration detention in Australia
1101:Ruhani v Director of Police (No 2)
1029:
1023:A History of English Law, Volume X
827:Ruhani v Director of Police (No 2)
743:
293:as the Crown's representative. By
241:
14:
1771:
1709:Christmas Island Detention Centre
698:agreeing with him. Chief Justice
638:, who was detaining the rescuees,
1730:Federal Court of Australia cases
1704:Nauru Regional Processing Centre
1694:Manus Regional Processing Centre
1201:Illegal immigration to Australia
388:, and the Minister for Defence,
773:
705:
843:
435:The applications were made in
405:Solicitor-General of Australia
330:about 140 kilometres north of
231:executive branch of Government
174:(per French & Beaumont JJ)
164:(per French & Beaumont JJ)
1:
1735:Australian constitutional law
1452:Asylum Seeker Resource Centre
1206:Immigrant health in Australia
836:
423:work for refugees, including
382:Attorney-General of Australia
291:Governor-General of Australia
1760:Right of asylum in Australia
1687:Offshore detention locations
614:
538:and to apply for protection
262:, such as the power to make
7:
1616:Operation Sovereign Borders
1493:Prime Minister of Australia
1054:[2001] HCATrans 625
685:
110:[2001] HCATrans 625
10:
1776:
1656:Wrongfully detained people
1640:Investigations and reports
1355:Department of Home Affairs
1111:580 (31 August 2005),
1070:Amiri v Director of Police
932: (18 September 2001),
858:Federal Court (Full Court)
856: (18 September 2001),
829:, where all judges except
819:Amiri v Director of Police
778:On 26 September 2001, the
498:in order to carry them to
392:. During the proceedings,
370:Federal Court of Australia
308:
192:Federal Court of Australia
43:Federal Court of Australia
1686:
1655:
1639:
1601:Temporary protection visa
1588:
1560:Children Overboard affair
1552:
1511:
1503:Minister for Home Affairs
1485:
1439:
1383:
1342:
1296:
1278:Australian migration zone
1265:
1214:
1168:
1056: (27 November 2001),
611:to make those arguments.
287:Constitution of Australia
145:
140:
121:
116:
101:
86:
81:
66:
58:
48:
37:
28:
23:
1755:Right of asylum case law
1740:Australian migration law
1596:Visa policy of Australia
1467:Médecins Sans Frontières
1343:Government organisations
1196:Immigration to Australia
485:
474:would be transferred to
1462:Human Rights Law Centre
1416:Canstruct International
1370:Australian Border Force
1283:1951 Refugee Convention
1006:[2001] FCA 1329
987:[2001] FCA 1329
958: (2 October 1906),
930:[2001] FCA 1297
854:[2001] FCA 1329
803:special leave to appeal
796:High Court of Australia
780:Parliament of Australia
590:High Court of Australia
374:Government of Australia
315:On 26 August 2001, the
299:Government of Australia
196:Government of Australia
95:[2001] FCA 1297
75:[2001] FCA 1329
1745:2001 in Australian law
1512:Notable asylum seekers
1426:Surveillance Australia
1091:Appeals to High Court.
1025:. Sweet & Maxwell.
815:Supreme Court of Nauru
770:release the rescuees.
767:
718:
683:
237:Background to the case
1447:Amnesty International
1365:Royal Australian Navy
1158:Immigration detention
1105:[2005] HCA 43
952:[1906] HCA 58
762:
722:Governor of Mauritius
713:
674:
394:Amnesty International
1486:Government officials
823:Immigration Act 1999
600:had to be released.
586:executive government
576:as they were told."
336:Australian territory
328:international waters
77:, (2001) 110 FCR 491
1440:Other organisations
1176:Asylum in Australia
1162:asylum in Australia
1019:Holdsworth, William
592:, in which Justice
532:mandatory detention
431:Initial proceedings
186:(also known as the
1631:Malaysian Solution
1611:Operation Resolute
1309:Ruddock v Vadarlis
1273:Migration Act 1958
1002:Ruddock v Vadarlis
983:Ruddock v Vadarlis
947:Robtelmes v Brenan
850:Ruddock v Vadarlis
658:Migration Act 1958
523:Migration Act 1958
357:On 29 August, the
183:Ruddock v Vadarlis
160:Migration Act 1958
102:Subsequent actions
71:Ruddock v Vadarlis
41:Full Court of the
24:Ruddock v Vadarlis
1717:
1716:
1544:Murugappan family
1384:Private companies
1304:Al-Kateb v Godwin
1247:Human trafficking
1237:Illegal immigrant
878:Blackshield, Tony
788:retrospective law
650:prerogative power
563:Judgment at trial
557:prerogative power
256:Royal Prerogative
227:prerogative power
179:
178:
175:
165:
151:prerogative power
62:18 September 2001
1767:
1750:2001 in case law
1621:Pacific Solution
1534:Dina Ali Lasloom
1519:Behrouz Boochani
1242:People smuggling
1232:Stateless person
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468:Pacific Solution
332:Christmas Island
305:The Tampa affair
266:or the power to
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1539:Reza Barati
1524:Peter Qasim
1252:Travel visa
782:passed the
702:dissented.
636:Arne Rinnan
480:New Zealand
464:John Howard
390:Peter Reith
268:declare war
202:aboard the
149:there is a
1724:Categories
1169:Main pages
1113:High Court
1058:High Court
960:High Court
837:References
454:injunction
417:barristers
295:convention
283:section 61
272:common law
188:Tampa case
1472:Red Cross
904:cite book
615:Arguments
553:statutory
511:mediation
437:Melbourne
260:the Crown
204:Norwegian
67:Citations
1699:Lorengau
1589:Policies
1215:Concepts
1089:s 5
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884:(2006).
696:Beaumont
686:Judgment
609:standing
421:pro bono
396:and the
350:(twelve
264:treaties
130:Beaumont
126:Black CJ
1570:SIEV 36
1227:Refugee
515:Manoora
495:Manoora
324:Afghani
285:of the
276:statute
254:as the
229:of the
59:Decided
1575:SIEV X
1553:Events
1457:GetUp!
1087:(Cth)
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692:French
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668:Judge
594:Barton
536:asylum
380:, the
134:French
132:&
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632:Tampa
573:Tampa
540:visas
507:Tampa
493:HMAS
486:Trial
476:Nauru
472:Tampa
450:Tampa
445:Tampa
441:North
359:Tampa
344:Tampa
340:Tampa
319:Tampa
210:Tampa
171:Tampa
167:(2:1)
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1266:Laws
1160:and
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890:ISBN
786:, a
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427:QC.
334:(an
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1109:CLR
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363:SAS
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413:QC
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136:JJ
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898:.
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