Developments. Australia

Transcription

1 Developments Developments Correspondents Daphne Barak-Erez (Israel), Daniel Bonilla (Colombia), Christina Cerna (Inter-American Commission on Human Rights), Rodrigo Correa (Chile), Rohan Edrishinha (Sri Lanka), Mark Elliott (United Kingdom), Simon Evans (Australia/New Zealand), Tania Groppi (Italy), Susi Dwi Harijanti (Indonesia), Christine Langenfeld (Germany), Hector Lopez Bofill (Spain), Jibong Lim (Korea), Shigenori Matsui (Japan), Abdelaziz Nouaydi (Morocco), Wistano Orozco (Mexico), Anashri Pillay (South Africa), Joseph Pini (France), Beate Rudolf (European Union/European Court of Human Rights), Roberto Saba (Argentina), David Schneiderman (Canada), Benny Tai (China/Hong Kong), Caroline Taube (Scandinavia/Baltic States), Li-ann Thio (Singapore), Alexei Trochev (Russia/CIS), Monica Twesiime (Uganda), Renata Uitz (Hungary), Jan Winczorek (Poland) Australia Simon Evans * Immigration Law Standing in Immigration Issues Legislative abrogation of executive prerogative Full Court of the Federal Court of Australia holds that the executive had the power to exclude, detain, and expel alien asylum seekers from Australian waters and that that power had not been abrogated by the Migration Act Ruddock v. Vadarlis (The Tampa Litigation). 1 In this profoundly controversial decision, the Full Court of the Federal Court of Australia held that the executive government of the Commonwealth of Australia had the prerogative or nonstatutory power to exclude, detain, and *Senior Lecturer, Faculty of Law, University of Melbourne, Australia. 1 (September 18, 2001), (2001) 110 F.C.R. 491, (Full Court of the Federal Court of Australia), available at Ruddock v. Vadarlis was an appeal from the decision of North J in Victorian Council for Civil Liberties Incorporated v. Minister for Immigration & Multicultural Affairs, (2001) 110 F.C.R. 452 (Federal Court of Australia). There was an unsuccessful application for special leave to appeal from the decision of the Full Court to the High Court of Australia: Vadarlis v. MIMA (Unreported, High Court of Australia, Gaudron, Gummow, and Hayne JJ, November 27, 2001). (The High Court is Australia s ultimate appellate court. It also has an original jurisdiction, exercised primarily in constitutional matters.) In Ruddock v. Vadarlis [2001] FCA 1865 (December 21, 2001), the Full Court of the Federal Court refused to order that the applicants pay the Commonwealth s costs despite the Commonwealth s success in the appeal to that Court. These decisions are available at In preparing this note I have drawn on my article, Simon Evans, The Rule of Law, Constitutionalism and the MV Tampa, 13 PUBLIC LAW REVIEW 94 (2002). Oxford University Press and New York University School of Law 2003, 123 I.CON, Volume 1, Number 1, 2003, pp

2 124 DEVELOPMENTS expel alien asylum seekers from Australian waters and that that power had not been abrogated by the detailed provisions of the Migration Act 1958 (Cth). In practical terms, the decision meant that the executive had lawfully detained 433 asylum seekers, rescued at sea and brought to Australian waters by the MV Tampa, and that the executive could remove them to Pacific nations while their asylum applications were processed. In this way, the executive was able to ensure that the asylum seekers never became entitled to the procedural and substantive protections afforded to asylum seekers under Australian migration legislation. More generally, as this note will argue, the decision marks a backward step in the progressive constitutionalization, moderation, and republicanization of the prerogative powers of the executive. 2 In recent years, increasing numbers of asylum seekers have sought to enter Australia by boat. 3 Many have arrived at Ashmore Reef or Christmas Island, external Australian territories in the Indian Ocean, close to Indonesia, from where the asylum seekers set sail. Once they arrive at these territories, they become subject to the Australian migration regime and have the right to apply for protection visas under the Commonwealth s Migration Act 1958 (Cth), to which they are entitled (in most cases) if Australia owes them obligations under the 1951 Refugees Convention and the 1967 Protocol. 4 In late August 2001, an Indonesian vessel set sail for one of Australia s Indian Ocean territories. It became distressed and, after a search-and-rescue operation coordinated by Australia, the vessel s crew and its passengers 433 asylum seekers, mostly Afghans were rescued by the MV Tampa, a Norwegian container ship. When the master received no response to his request for urgent medical attention for some of the asylum seekers, he brought the MV Tampa into Australian territorial waters off Christmas Island. Within hours, 45 Australian troops boarded the ship and took control of the movements of the asylum seekers. A number of lawyers and nongovernmental organizations sought to obtain instructions from the asylum seekers in order to begin proceedings in the Australian courts on their behalf, but they were not able to contact the asylum seekers. Accordingly, despite the obvious standing problems and the potential liability to pay the respondents costs should they fail, the Victorian Council for Civil Liberties Incorporated and Melbourne legal practitioner Eric Vadarlis 2 See generally HARVEY C MANSFIELD JR., TAMING THE PRINCE: THE AMBIVALENCE OF MODERN EXECUTIVE POWER (Free Press 1989). 3 See Commonwealth Department of Immigration & Multicultural & Indigenous Affairs, Australian Immigration Fact Sheet No. 74: Unauthorized Arrivals by Air and Sea, available at (revised May 3, 2002; copy on file with the author). 4 Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (entered into force April 22, 1954); Protocol Relating to the Status of Refugees, January 31, 1967, 606 U.N.T.S. 267 (entered into force October 4, 1967).

3 DEVELOPMENTS 125 (together, the applicants ) commenced proceedings in the Federal Court in their own names against the Australian Government and certain Ministers of State ( the respondents ). Vadarlis sought orders, based on the freedom of communication implied in the Constitution, allowing him to give legal advice to the asylum seekers. 5 Relying on earlier High Court authority, the Federal Court (per Justice North) held that the implied freedom could be claimed only for the benefit of Australian citizens, not aliens. 6 Insofar as Vadarlis relied on his own freedom of political communication, it did not require the respondents to facilitate communication with the asylum seekers. 7 In light of Vadarlis s success on other grounds, it was not necessary to rule further on this claim. 8 Both applicants sought orders compelling the respondents to perform their duties under the Migration Act that would bring the asylum seekers within the regime of that Act and enable them to apply for protection visas. 9 The Court accepted the respondents contention that the applicants lacked standing to bring the claims 10 and ruled further that the applicants had not established that the statutory provisions applied to the asylum seekers. 11 The final limb of the applicants argument, and the only one to succeed, was the claim for habeas corpus or an order for release. In light of the long 5 The Constitution does not contain a general Bill of Rights or indeed any express guarantee of freedom of communication. However, beginning with two decisions in 1992, the High Court has recognized an implied freedom of communication on political matters. The freedom is derived from the constitutional provisions entrenching a system of representative and responsible government. It operates as a limitation on Commonwealth and state executive power and not as a source of individual rights. However the common law must conform to the requirements of the constitutional freedom. See Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520; GEORGE WILLIAMS, HUMAN RIGHTS UNDER THE AUSTRALIAN CONSTITUTION (Oxford University Press 1999) (Chapter 7); Adrienne Stone, The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication, 23 MELBOURNE UNIVERSITY LAW REVIEW 668 (1999); Adrienne Stone, Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication, 25 MELBOURNE UNIVERSITY LAW REVIEW 374 (2001). 6 (2001) 110 F.C.R. 452, at 489 [163] [164]. 7 Id. at 489 [166]. 8 Id. at 490 [168]. 9 Both applicants relied on the Migration Act, s 245F(9); Mr. Vadarlis also relied on s (2001) 110 F.C.R. 452, at , 486, 489 [123] [137], [149], [161]. The law relating to standing is in a state of flux; accordingly, the restrictive approach adopted in this litigation may be open for reconsideration in the High Court. See generally Simon Evans & Stephen Donaghue, Standing to Raise Constitutional Issues in Australia, in THE CONVERGENCE OF LEGAL SYSTEMS IN THE 21ST CENTURY 53 (Gabriel Moens & Rodolphe Biffot eds., Copyright Publishing 2002). However, the High Court has recently confirmed that it is wary of affording relief to parties who are strangers to an underlying substantive dispute: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 A.L.R (2001) 110 F.C.R. 452, at 486 [150].

4 126 DEVELOPMENTS recognition that a stranger can seek habeas corpus, the respondents did not contend that the applicants lacked standing to bring this claim. 12 The Court rejected the respondents argument that the asylum seekers were not detained since they were free to go anywhere but Australia 13 and assumed that, as the Migration Act did not apply to them, there was no lawful basis for the detention. Relief in the nature of habeas corpus was issued as of course. The respondents appealed to the Full Court of the Federal Court. By majority (Justices Beaumont and French, with Chief Justice Black dissenting), the appeal was allowed. 14 Justice French, with whom Justice Beaumont agreed, held that the asylum seekers had not been detained and that in any event any detention was lawful as a valid exercise of the prerogative power to exclude, detain, and expel aliens. Chief Justice Black dissented from both conclusions. Justice Beaumont gave a separate judgment emphasizing that, in order for the court to grant an order for release that required the asylum seekers to be brought to Australia, the applicants had to show that the asylum seekers had a positive entitlement to enter Australia and not just that they were unlawfully detained. 15 Following this decision, Vadarlis applied for special leave to appeal to the High Court. By the time his application was heard, the asylum seekers were no longer detained by the executive. Some had been taken to Nauru and were detained there under Nauruan law while their claims for asylum were processed; others were taken to New Zealand. Accordingly, the application was dismissed as moot. This relieved the High Court of any need to consider the validity of legislation enacted while the litigation was afoot. The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (the Act) purported retrospectively to validate, for all purposes, all action taken by the executive in relation to the MV Tampa and to prevent judicial scrutiny of such action. It prohibited the commencement or continuation of civil or criminal proceedings in any court against the Commonwealth or any person who receives the benefit of the validation in relation to any action. The rule of law and constitutionalism concerns surrounding the Act are obvious: the validation regime is retrospective; 16 it purports to enact a special 12 Id. at 469 [56]. 13 Id. at 473 [81]. 14 The applicants did not cross-appeal against the findings on the statutory and constitutional issues; in particular, there was no cross-appeal on the question whether the applicants had standing to bring those claims. 15 (2001) 110 F.C.R. 491, at [109] [125]. Beaumont J also doubted (but did not finally decide) that the Federal Court had been given power to make orders of habeas corpus under its founding statutes (at 517 [101] [103]). 16 The one limitation on retrospective alteration of rights, recognized in s 8 of the Act, is that s 51(xxxi) of the Constitution may require just terms compensation for retrospective alteration to accrued causes of action against the Commonwealth that have arisen under the general law.

5 DEVELOPMENTS 127 regime of immunity from the general law for Commonwealth officers; it effectively delegates unconstrained powers to Commonwealth officers; and it sharply limits access to the courts. The Act does not limit the immunity by requiring that action to which it applies was undertaken in good faith or reasonably or proportionately to the aims that it was undertaken to advance. Nonetheless, the legislation is likely to be valid as (at least on one interpretation) it alters the substantive law rather than directing the courts how to resolve particular proceedings, and it does not wholly remove any part of the courts jurisdiction. 17 Given the failure of the application for special leave to appeal to the High Court, the decision of the Full Court of the Federal Court stands. The decision raises two key constitutional questions: first, whether the prerogative or freestanding executive power of the Commonwealth extends to stopping noncitizens at the border and excluding them from Australia, detaining them if necessary in order to exclude them; and, second, whether any such prerogative had been abrogated by legislation. 1. The extent of the prerogative The most important judgment on the extent of the prerogative is that of Justice French. He concluded that [t]he scope of the executive power conferred by s 61 of the Constitution is to be measured by reference to Australia s status as a sovereign nation and by reference to the terms of the Constitution itself : 18 The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering. 19 This conflates two questions. The first is, Does the government of Australia (in the sense of all of the branches of government operating in their own spheres) have the power to exclude or expel aliens and to detain them for the purposes of exclusion or expulsion? The answer to that question must be 17 Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 36 37; Re McJannet; Ex parte Minister for Employment Training and Industrial Relations for the State of Queensland (1995) 184 C.L.R. 620, 651; see also Justice McHugh, Does Chapter III of the Constitution Protect Substantive as well as Procedural Rights? 21 AUSTRALIAN BAR REVIEW 235 (2001). 18 (2001) 110 F.C.R. 491, 542 [191]. 19 Id. at 543 [193].

6 128 DEVELOPMENTS yes, at least under a constitutional system that adheres to the doctrine of parliamentary sovereignty and to the traditional exclusionary notions of national sovereignty and citizenship. 20 But that does not answer a second question, namely, By which branch of government is that power exercisable? 21 In other words, is the power exercisable by the executive as a prerogative or free-standing power, or does it require supporting legislation? Justice French also does not sufficiently distinguish between the subject matters with respect to which the executive power can be exercised and the activities that can be carried out by the executive in relation to those subject matters. The coercive activities of exclusion, expulsion and detention raise concerns different from those raised by non-coercive activities like patrolling borders and collecting intelligence. 22 Section 61 of the Constitution is the principal source of Commonwealth executive power. But it is not an unlimited reserve of power for the executive to do whatever appears to be in the national interest. 23 Executive power under Westminster systems of government has been progressively limited over the course of the preceding centuries the executive cannot now impose taxation, create new offenses, judge compliance with the law, or dispense with the operation of the law; nor could it do so when the Constitution was adopted in There is no reason to suppose that, to the extent that the prerogative to exclude and expel aliens had fallen away in England by 1901, it received a new lease of life in Australia by the general grant of power in s 61. Accepting that this aspect of the prerogative has become obsolete does not imperil Australia s sovereignty or its status as a fully independent nation. It is certainly a limit on the powers of the executive government, but only until such powers are conferred on the executive government by legislation. Government is distinct from sovereignty. Limits on governmental power reaffirm that sovereignty is exercised under the law and in accordance with the norms of constitutionalism. 2. Abrogating the prerogative Assuming that the prerogative does extend to excluding and detaining aliens, has this aspect of the executive power been abrogated by the Migration Act or 20 As to the latter, see Kim Rubenstein, Citizenship Sovereignty and Migration: Australia s Exclusive Approach to Membership of the Community, 13 PUBLIC LAW REVIEW 102 (2002). 21 Compare French J with Black CJ, id. at 499 [25]. 22 Black CJ refers to the decisions of the High Court confirming the limited coercive reach of the executive power, even on matters central to sovereignty, id. at 501 [31]. 23 Compare French J with Black CJ, id. at 491 [30]. 24 See generally Commonwealth v. Colonial Combing, Spinning and Weaving Company Ltd. (1922) 31 C.L.R. 421; Pfeiffer v. Stevens (2001) 185 A.L.R. 183, 208 [117] [119].

7 DEVELOPMENTS 129 any other legislation? Justice French concluded it had not been abrogated by the Migration Act. 25 It appears that his view was that only direct inconsistency between the statutory regime and the prerogative power will abrogate the prerogative. 26 He asked whether the Act operates in a way that is necessarily inconsistent with the subsistence of the executive power described. 27 He concluded that it is not, because of the facultative nature of the provisions in the Act and the importance to national sovereignty of the prerogative power. 28 This again confuses the importance of the power to national sovereignty, which in any event is a highly contested concept both in constitutional and international law, with the identification of the branch of government by which that power is exercised. As legislative abrogation merely transforms a prerogative power into an executive power regulated by statute, such solicitude for national sovereignty is misplaced. The better view is that the prerogative is abrogated here because Parliament has covered the field ; it has purported to regulate in detail the topic of interdiction, exclusion, and expulsion of unlawful noncitizens. 29 The question whether the prerogative had been abrogated can also be framed in the language of legislative intention, and this was the approach adopted (with differing results) by Chief Justice Black and Justice French: given the detail and nature of the provisions in the Migration Act, is it realistic to think that Parliament intended that parallel statutory and nonstatutory regimes operate? 30 The legitimacy of the exercise of government power depends on its commitment to the forms of legality inherent in the rule of law. If it is assumed that Parliament intended the law the rights and obligations of officers and those whom they seek to exclude from Australia to be clear, certain, and general, it is hardly likely that it intended the parallel operation of two inconsistent regimes, the existence and scope of one of which was uncertain. Equally, it is hardly likely that Parliament intended to leave operating an uncertain nonstatutory regime affecting the liberties of individuals with limited channels of parliamentary accountability. 25 (2001) 110 F.C.R. 491, [199] [205]. None of the judges consider whether any other legislation including defense force legislation might be relevant. 26 The judgments use analogies drawn from the Australian constitutional jurisprudence relating to inconsistency between Commonwealth and State laws. See generally PETER HANKS, CONSTITUTIONAL LAW IN AUSTRALIA (Butterworths 2nd ed. 1996). 27 (2001) 110 F.C.R. 491, 545 [202]. 28 Id. 29 See especially Migration Act ss 245B to 245H, discussed by Black CJ, id. at [48] [64]. 30 See (2001) 110 F.C.R 491, 507 [61] (Black CJ). As to the future, the new Migration Act s 7A provides that Parliament does so intend.

8 130 DEVELOPMENTS The preferable view, then, is that, even if the prerogative existed, it was abrogated by the detailed provisions of the Migration Act. 31 The approach adopted by Justice French (with which Justice Beaumont agreed) fails to give effect to the values of democratic constitutionalism. It is to be hoped that future cases pay those values more heed. 31 This is not to suggest that the actual decision is incorrect. It can be upheld either on the ground that the asylum seekers were not detained or on the ground that habeas corpus should not issue in the absence of a positive statutory entitlement to enter Australia. Chile Rodrigo P. Correa G.* International Criminal Court Judicial Sovereignty of a State Party Chilean Constitutional Court finds the Rome Statute of the International Criminal Court unconstitutional. Decision of April 8, Shortly before the Rome Statute of the International Criminal Court (ICC) 2 entered into force, the Chilean Constitutional Court declared it unconstitutional on various grounds. Most prominent among these was the Court s conclusion that the jurisdiction of the ICC would infringe upon the constitutionally protected jurisdiction of the Chilean judiciary. As a consequence of this decision, Chile will need to amend its constitution before it can ratify the treaty. The Chilean Constitution accords considerable power to the president, who is directly chosen in general elections and is not responsible to congress except for qualified misconduct, for which he or she can be impeached. The president has the power to ratify international treaties approved by congress (the Chamber of Deputies and the Senate), with the quorum for congressional approval varying according to the subject matter of the treaty. Previous decisions of the Constitutional Court have established that any number of deputies or senators larger than a quarter of the members of the both chambers can require the Court to determine the constitutionality of an international treaty *Assistant Professor of Law, University of Chile. 1 Chilean Constitutional Court, decision of April 8, 2002, Case No. 346, unpublished [hereinafter Decision], available at Citations refer to the numbered paragraphs in the original. 2 U.N. Doc. A/CONF.183/9*, available at [hereinafter Rome Statute].