Australian Federal Constitutional Law - Essay Example

FEDERAL CONSTITUTIONAL LAW Ruddock v Vadarlis (2001) ---Tampa case I start my judgement by looking at the extent of the issues before the Court on appeal. The argument brought by Solicitor-General on behalf of the appellants was that there was error made by North J asserting that the executive power bestowed on Commonwealth neither authorized nor supported the expulsion from Australia, people rescued by the M V Tampa and subsequent detention. Additionally, there was argument that individual detained by M V Tampa were not relevantly done so. Having established the above issues, it is essential to consider whether there was lawful authority for executive action that was taken. An important fact that has to be established is that a nation State has a sovereign powers that it can use against aliens illegally entering its borders and cases in hand are Robtelmes v Brennan1and Attorney-General for Canada v Cain.2 Conceptualizing both cases, the issue presented before the court was that individuals rescued by M V Tampa could be said to have lawfully detained or presented from crossing to Australia with regard to exercising sovereign power. However, it must be noted that such was not an exercise of the power as derived from legislation. Basing on the general principle of law, this submission has no doubt that there is no existence of executive authority, other than that conferred by statute that can subject any individual within the borders of Australia; be it non-citizen or citizen, to detention. This was the situation with regard to LimChu Keung Lim v Minister for Immigration, Local Government and Ethnic Affairs.3 Basing on general principle, Executive has no mandate in the expulsion of a person within the borders of Australia and such done without statutory authority. In as much, this court realises that such principles are applicable to non-resident but unlawful non-citizens stand to be disputed in this matter.4 This argument is in connection to the submission made by Solicitor-General that a non-statutory executive power that prevents unlawful non-citizens crossing Australian borders has with it necessary or the needed ancillary powers and that such powers may include that to detain and even expel unlawful non-citizen when there is a need to protect the borders of Australia. The exceptional case or the acceptance that I would like to the defendant and the accused is that ancillary powers of detention and even expulsion should travel with a power to exclude and the relevant case to this regard was that of Cain's Case at 546; Robtelmes per O'Connor J. In as much, it will be unconstitutional to argue in this court that the so existing powers of the Executive to protect the borders of Australia against illegal entries, especially the non-citizens in times of peace has been derived from statute and not any other source. To conceptualize the above statement, this court should be informed about sources of Executive power. According to s. 61 of the Constitution such powers read: "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." Having established this, it is important to connect the enshrinements of s. 61 with prerogative power(s). The principal argument of the Solicitor-General was that appellants acted with regard to prerogative power, which this court finds that such prerogative powers are embraced by s. 61. May view indeed accept that s. 61 with regard to such powers of the Executive embrace powers accorded to the Crown at common law and a good example how such are integrated was found in the case between Barton v The Commonwealth of Australia.5 Based on the prerogative powers, s. 61 and the case cited, the question that Solicitor-General should have pondered about was whether there was a prerogative power of the nature contended for by his submission. In the same way, Supreme Court of New South Wales made a consideration regarding applications for writs of habeas corpus by Chinese citizens who were denied by the authority from disembarking from the SS Afghan.6 The argument of the Crown was that the Government of New South Wales possessed prerogative powers to prevent foreigners from entering into the boundary was rejected. In Lo Pak the Chief Justice said: "It may be that the Sovereign of England may have such a power according to the principles laid down by writers on international law, but so far as I can understand, it has not been a power that has ever been exercised in England. On the contrary ... it has been considered necessary to pass a statute for the express purpose of enabling that to be done." Connecting this statement with statement during Robtelmes, Griffiths CJ showed his doubt by saying, "...whether the Executive authority of Australia, or of any State, could deport an alien except under the conditions authorized by some Statute..." but found it "not necessary to discuss that question now." The problems and even existing doubts regarding the continued practice of prerogative powers that has seemed to underline the observation of the judicial processes to which my judement has mentioned raise the complex question, on which there has been divided opinion. In fact, the opinion has been whether a given prerogative power can revive after it has fallen into disuse. I believe there is an argument postulating that a long period of disuse can extinguish the prerogative, and the reason is that it would be illusory to argue that Parliament has, with regard to such circumstances, decided to leave the prerogative in the Crown’s hands. I am also in the opinion that prerogative as submitted by the Solicitor-General can be revived in ‘propitious’ situations, but not so when it would be tantamount to "grossly anomalous and anachronistic".7 My further submissions are that the existing judicial and even extra-judicial observations is currently supporting the fact that prerogative powers can be discharged or extinguished, not just because it has been passed by legislation, but because such prerogative powers have developed to be incompatible with current constitutional jurisprudence. I back this submission with judgment made by Holroyd J in Toy at 425 in which his Honour was ‘pleased’ when there was absence of any attempts to exercise the prerogative powers in three centuries. I believe that the universal resort to legislation is just a proof of the opinion that the so called prerogative to deny or exclude aliens during peace is too weak and rusty for independent exercise. The preponderance of opinion, as suggested by text writers confirm the view that, towards the end of nineteenth century, the power to deny aliens in times of peace was not factored to be part of the prerogative, going by English jurisprudence. I therefore find it unconstitutional to send any person, whether alien or a subject, compulsorily out of the realm.8 At this point, it is important for this submission to refer to the case of Cain which the Court relied upon to back the continued argument concerning the prerogative power that has attempted to exclude aliens. Again the same case has been depended upon by High Court to affirm the validity of legislation that attempted to exclude or deny aliens from crossing the border.9 This submission also considers Cain’s case to show the broad proposition that there is existence in England, a specific royal prerogative that allows for detainment or expulsion of an alien. Again such reference only concerned a given application a German, a permanent English residence since 1931. More so, it was acknowledged that any step to transfer to the Parliament of power to make exclusion to the so called ‘friendly aliens’ was considered irrelevant to the particular case. This statement leaves this submission with one option and that is, there is a broad prerogative power that has the ability to expel or even detain during periods of peace is not a commendable if not good law in Australia. The court cases reviewed above amply supports, in my opinion, the conclusion that it is, at best, doubtful that the asserted prerogative has continued to exist especially at common law. Though there are instances where it is argued that the prerogative may no longer exist, this submission does not find it a necessity to express a concluded view on that matter. If this Court must be convinced that the said or asserted executive power to some extent exclude aliens in time of peace is at best doubtful at common law, there is a question whether the s. 61 of the Constitution has a provision of a larger source of the said power noting that English constitutional theory does not recognise the creation of new prerogative powers.10 This Court notes that with regard to Australia, cases in which such powers (executive) have had the interest to protect the nation can only be considered when it tried to contrast with those in which such a power had been used or asserted coercively. This is to mean the so called executive power has been, if any, used validly when setting up Australian Bicentennial Authority.11 In as much, it was held not to be available in sustenance of deportation. It is against this that this submission considers the argument that in case there is any prerogative or even non-statutory executive power, then such must have been abrogated by the Parliament. The abrogation must have been done through the enactment of the Migration Act 1958. This Honourable Court is now turned to the consideration of the relationship existing between statute and prerogative. For me, the only test that helps the determination of whether a prerogative power has managed to be displaced by statute is when the legislation has the same area of applicability or operation as the prerogative itself. To confirm this, Lord Dunedin in De Keyser's case argued that: ‘It is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?' Similarly, in Laker Airways Ltd v Department of Trade12 the House of Lords argued that there was nothing as residual prerogative right that allowed the withdrawal of the designation of an airline (Skytrain) and such be done under an international airline treaty existing between United States and England (the Bermuda Agreement). Under the Agreement, the airline was licensed under a domestic statute regulating civil aviation. Informing the court with regard to construing the extent or scope of the domestic statute, Roskill LJ added: "I do not think that the Attorney-General's argument that the prerogative power and the power under municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the statute by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieve by entry through the front. I think Parliament must be taken to have intended to fetter the prerogative of the Crown in this relevant respect." These cases as reviewed above augur the argument that where the prerogative should be relied on as an a alternative or separate source of power that offer action under a statute, such prerogative will be held to be replaced especially when the statute can be able to cover the subject matter.13 In conclusion, it is important to make a consideration with regard to the clarity with which an intention to displace an executive or prerogative power should be expressed. This submission also finds that if indeed a power is well-established, very clear and such significant to the functioning of the executive government, then it turns to be seen that there will be a clear manifestation of an intention to abrogate will be needed. Turning to Migration Act of 1958, the Act read in part, “"an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons".14 This submission understands that ‘Australia’ should extend to the external territories as well as the territorial seas.15 The main significance of considering the Act is to support the endeavor already established in this submission that once a given statutory regime has been established, there should be no parallel executive right in the area expressly outlined or covered. Within the context of the Act, it means that in the event that a migration personnel comes with a view under s. 189 of the Migration Act, the aspect or the regime of detention as well as bringing to the zone of migration as enshrined by s. 189 of the Act, then such has to take effect, considering a number of repercussions, both beneficial as well as detrimental to the person affected. It would be unconstitutional to argue or ascribe to the Parliament that there should be a parallel system of unregulated executive discretion. It is true, from incidences that have been witnessed before that individuals arriving are, in most instances, not genuine refugees looking for haven in any safe country. Instead, it has been proved that they are just young migrants coming from less developed nations looking for working opportunities in developed countries. There a need for legislation for such reoccurrences. Since my submission has concluded that there is no prerogative or non-statutory authority that acted for the detention of the rescued, I will briefly reflect on North J submissions. First, the trial judge established, and this submission sees no reason to contravene, that it was not sensible to expect the rescued individuals to depart the MV Tampa. The appellants argued that there was no detention by them since the captain of the MV Tampa was at liberty. I also refuse the position the appellants had that people who brought applications on behalf of the individuals did so for the sake of impermissible collateral reason. My remedy is therefore that I will not stand to disturb the decision made by the trial judge when it found that the individuals rescued by the MV Tampa were indeed detained by the appellants and that such detention was not permitted by law. It is also apparent that there did not exist discretion that could result to the refusal relief as long as the grounds for the issue of the writ of habeas corpus could have been made out. In any case, there is no evidence that appellants did not submit otherwise. It follows that I would dismiss the appeals. Read More