''Ruddock v Vadarlis'' (also known as the Tampa case) was an Australian court case decided in the

Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...

on 18 September 2001.. It concerned the actions of the

Government of Australia The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federalism, federal parliamentary system, parliamentary constitutional monarchy. Like other Westminster system, Westminster-sty ...

in preventing

asylum seeker An asylum seeker is a person who leaves their country of residence, enters another country and applies for asylum (i.e., international protection) in that other country. An asylum seeker is an immigrant who has been forcibly displaced and mi ...

s aboard the

Norwegian Norwegian, Norwayan, or Norsk may refer to: *Something of, from, or related to Norway, a country in northwestern Europe * Norwegians, both a nation and an ethnic group native to Norway * Demographics of Norway *The Norwegian language, including ...

cargo vessel MV ''Tampa'' from entering Australia in late August 2001 (see

Tampa affair In late August 2001, the Howard Government of Australia refused permission for the Norwegian freighter MV ''Tampa'', carrying 433 rescued refugees (predominantly Hazaras of Afghanistan from a distressed fishing vessel in international water ...

). The Victorian Council for Civil Liberties (now Liberty Victoria), and solicitor Eric Vadarlis, were seeking a

writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

(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

prerogative power The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the ...

of the

executive branch of Government The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ba ...

in Australia.

Background to the case

Executive power

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. The concept of prerogative power, often referred to in the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...

as the

Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...

, consists of various powers belonging exclusively to

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...

, such as the power to make

treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal perso ...

or the power to

declare war A declaration of war is a formal act by which one state announces existing or impending war activity against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government, in ...

. The Royal Prerogative was generally said to derive from the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

. The prerogative powers are not unlimited, and they can be superseded by

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

, 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. In Australia, it is generally accepted that the prerogative power is included in section 61 of the

Constitution of Australia The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...

, the section which vests the executive power of Australia in the Crown and the

Governor-General of Australia The governor-general of Australia is the representative of the monarch, currently King Charles III, in Australia.convention, the executive functions of government in Australia are carried out from day to day by the

The Tampa affair

On 26 August 2001, the MV ''Tampa'' rescued 433 people, asylum seekers bound for Australia, and of mainly Afghani background, from their wooden fishing boat. The boat was sinking in

international waters The terms international waters or transboundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regiona ...

about 140 kilometres north of

Christmas Island Christmas Island, officially the Territory of Christmas Island, is an Australian external territory comprising the island of the same name. It is located in the Indian Ocean, around south of Java and Sumatra and around north-west of the ...

(an Australian territory). 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 ''Tampa'' then proceeded to the nearest port, at Christmas Island. The ''Tampa'' stopped at the boundary of Australia's

territorial sea The term territorial waters is sometimes used informally to refer to any area of water over which a sovereign state has jurisdiction, including internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, and potenti ...

(twelve

nautical mile A nautical mile is a unit of length used in air, marine, and space navigation, and for the definition of territorial waters. Historically, it was defined as the meridian arc length corresponding to one minute ( of a degree) of latitude. Today ...

s offshore) to request permission to enter Australian waters and unload the asylum seekers, but permission was refused. On 29 August, the ''Tampa'' declared a state of emergency and entered Australian waters. About four nautical miles offshore, the ship was stopped and boarded by forty-five SAS troops, who took control of the ship and anchored it. This action prompted the Victorian Council for Civil Liberties (VCCL) to take action. Along with Victorian solicitor Eric Vadarlis, they initiated proceedings in the

for a writ of habeas corpus, against the

and three Ministers, the Minister for Immigration and Multicultural Affairs,

Philip Ruddock Philip Maxwell Ruddock (born 12 March 1943 in Canberra) is an Australian politician and the current mayor of Hornsby Shire. Ruddock is a member of the Liberal Party of Australia and currently the state president of the party's New South W ...

, the

Attorney-General of Australia The Attorney-GeneralThe title is officially "Attorney-General". For the purposes of distinguishing the office from other attorneys-general, and in accordance with usual practice in the United Kingdom and other common law jurisdictions, the Aust ...

Daryl Williams Daryl Williams may refer to: * Daryl Williams (politician) (born 1942), Australian politician * Daryl Williams (American football) (born 1992), American football offensive tackle * Daryl Williams (rugby union) (born 1964), New Zealand-born Samoan r ...

, and the Minister for Defence,

Peter Reith Peter Keaston Reith (15 July 1950 – 8 November 2022) was an Australian politician who served in the House of Representatives from 1982 to 1983 and from 1984 to 2001, representing the Liberal Party. He was the party's deputy leader from 1990 ...

. During the proceedings,

Amnesty International Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...

and the

Human Rights and Equal Opportunity Commission The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...

intervened in the case, generally supporting VCCL and Vadarlis. The various Government parties were represented by a team of lawyers including the

Solicitor-General of Australia The Solicitor-General of Australia is the country's second highest-ranking law officer, after the Attorney-General for Australia. The position is often known as the Commonwealth Solicitor-General in order to distinguish it from the state solicit ...

, David Bennett AO QC. VCCL and Vadarlis were represented by a number of

barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...

s well known for their public involvement in refugee law and

pro bono ( en, 'for the public good'), usually shortened to , is a Latin phrase for professional work undertaken voluntarily and without payment. In the United States, the term typically refers to provision of legal services by legal professionals for pe ...

work for refugees, including

Julian Burnside Julian William Kennedy Burnside (born 9 June 1949) is an Australian barrister, human rights and refugee advocate, and author. He practises principally in commercial litigation, trade practices and administrative law. He is known for his staunch ...

QC.

Initial proceedings

The applications were made in

Melbourne Melbourne ( ; Boonwurrung/Woiwurrung: ''Narrm'' or ''Naarm'') is the capital and most populous city of the Australian state of Victoria, and the second-most populous city in both Australia and Oceania. Its name generally refers to a met ...

on 31 August, at 5.00 p.m. Melbourne time, and the court was convened by 5.40 p.m., with Judge

North North is one of the four compass points or cardinal directions. It is the opposite of south and is perpendicular to east and west. ''North'' is a noun, adjective, or adverb indicating Direction (geometry), direction or geography. Etymology T ...

presiding. Both VCCL and Vadarlis argued that the court should immediately make an order preventing the Government from removing the ''Tampa'' 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 ''Tampa'' in the meantime, and this had the effect of a temporary

injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...

. The court reconvened on the morning of 1 September, but while proceedings were underway,

Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...

John Howard John Winston Howard (born 26 July 1939) is an Australian former politician who served as the 25th prime minister of Australia from 1996 to 2007, holding office as leader of the Liberal Party. His eleven-year tenure as prime minister is the s ...

announced the

Pacific Solution Pacific Solution is the name given to the Government of Australia policy of transporting asylum seekers to detention centres on island nations in the Pacific Ocean, rather than allowing them to land on the Australian mainland. Initially imple ...

, under which the asylum seekers on the ''Tampa'' would be transferred to

Nauru Nauru ( or ; na, Naoero), officially the Republic of Nauru ( na, Repubrikin Naoero) and formerly known as Pleasant Island, is an island country and microstate in Oceania, in the Central Pacific. Its nearest neighbour is Banaba Island in Ki ...

and

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...

. 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.

Trial

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 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 HMAS ''Manoora'' in order to carry them to

Port Moresby (; Tok Pisin: ''Pot Mosbi''), also referred to as Pom City or simply Moresby, is the capital and largest city of Papua New Guinea. It is one of the largest cities in the southwestern Pacific (along with Jayapura) outside of Australia and New Z ...

for transfer to Nauru and New Zealand. The issue of the injunction (which prevented the removal of the ''Tampa'' or the people on it) was still outstanding, and an agreement could not be reached. North sent the parties to

mediation Mediation is a structured, interactive process where an impartial third party neutral assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are ...

, and that evening an agreement was reached, which allowed the Government to transfer the asylum seekers to the ''Manoora''. VCCL and Vadarlis made two main arguments. Firstly, they argued that the provisions of the ''

Migration Act 1958 The ''Migration Act 1958'' (Cth) is an Act of the Parliament of Australia that governs immigration to Australia. It set up Australia’s universal visa system (or entry permits). Its long title is "An Act relating to the entry into, and pres ...

'' (which regulates immigration) applied to the asylum seekers, and the normal procedures for dealing with other non-citizens should be applied. The ''Migration Act'' did empower the Government to detain all non-citizens, under the system of

mandatory detention Immigration detention is the policy of holding individuals suspected of visa violations, illegal entry or unauthorized arrival, as well as those subject to deportation and removal until a decision is made by immigration authorities to grant a vi ...

, but it also gave non-citizens certain rights, such as the right to seek

asylum Asylum may refer to: Types of asylum * Asylum (antiquity), places of refuge in ancient Greece and Rome * Benevolent Asylum, a 19th-century Australian institution for housing the destitute * Cities of Refuge, places of refuge in ancient Judea ...

and to apply for protection

visa Visa most commonly refers to: *Visa Inc., a US multinational financial and payment cards company ** Visa Debit card issued by the above company ** Visa Electron, a debit card ** Visa Plus, an interbank network *Travel visa, a document that allows ...

s. 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 ''Migration Act'' 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. 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 detained, then despite there being no

statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

authority for their detention, the Government had a

to expel non-citizens from Australian waters.

Judgment at trial

Justice North delivered his decision on 11 September 2001. 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 ''Tampa'' 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 as they were told.". 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 ''Migration Act'', which now identified and regulated all the powers of the

executive government The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems b ...

to deal with non-citizens. North relied on a number of authorities, including a 1906 case of the

High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...

, in which Justice Barton found that "the question to-day is one of statutory authority.". 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 had to be released. North rejected a number of other arguments based on particular provisions of the ''Migration Act'' on the basis that VCCL and Vadarlis did not have

standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...

to make those arguments.

Arguments

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. 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: * the rescuees were not being detained by the SAS troops, * in reality it was the captain of the ''Tampa'',

Arne Rinnan Arne Frode Rinnan is the former captain of the MV Tampa, which in 2001 was refused access to Australia to disembark 433 rescued refugees - in what became known as the Tampa affair. Rinnan and his crew were awarded the Nansen Refugee Award in 2002. ...

, who was detaining the rescuees, * the circumstances of the rescuees were self-inflicted, and * the rescuees were not detained because they had the option of going to Nauru or New Zealand under the Pacific Solution. They also argued that North erred in finding that the Government did not have a

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. 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 ''

''. 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

section 109 of the Australian Constitution Section 109 of the Constitution of Australia is the part of the Constitution of Australia that deals with the legislative inconsistency between federal and state laws, and declares that valid federal laws override ("shall prevail") inconsistent s ...

). Judge French summarised the key issues in the appeal as being:

# "Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees and their detention for that purpose. # "If there was no such executive power, whether the rescuees were subject to a restraint attributable to the Commonwealth and amenable to habeas corpus.".

Judgment

The Full Court handed down its decision on 18 September. Justice French delivered the majority opinion, with Justice

Beaumont Beaumont may refer to: Places Canada * Beaumont, Alberta * Beaumont, Quebec England * Beaumont, Cumbria * Beaumont, Essex ** Beaumont Cut, a canal closed in the 1930s * Beaumont Street, Oxford France (communes) * Beaumont, Ardèche * ...

agreeing with him. Chief Justice

Black Black is a color which results from the absence or complete absorption of visible light. It is an achromatic color, without hue, like white and grey. It is often used symbolically or figuratively to represent darkness. Black and white have o ...

dissented.

The majority

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:

The power to determine who may come into Australia is so central to its ustralia'ssovereignty 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 ic from entering.

French said that this "gatekeeping" function had been recognised in a number of English cases, including an 1837 case concerning the power of the Governor of Mauritius to eject non-citizens, and a 1906 case concerning the deportation of foreign workers from

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...

. French also decided that, although statutes are capable of replacing prerogative powers, the ''Migration Act'' 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 that result". He found that the Act was a positive conferral of executive power, and did not clearly show such an intention. 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 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.

Black's dissent

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. 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 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. Ultimately, Black decided that the ''Migration Act'', 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:

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 regard to what I have concluded about the nature and the uncertainty of the prerogative or executive power asserted on behalf of the Commonwealth.

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 release the rescuees.

Consequences

On 26 September 2001, the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislature, legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the ...

passed the ''Border Protection (Validation and Enforcement Powers) Act 2001'',. a retrospective law which gave statutory authorisation to the actions of the Government in detaining the asylum seekers on the ''Tampa''. This would seem to rule out any prospect of an appeal to the

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. Vadarlis did make an application for special leave to appeal 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 ''Tampa'' 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.. In 2004, the scheme of immigration detention in Nauru was challenged in the

Supreme Court of Nauru The Supreme Court of Nauru was the highest court in the judicial system of the Republic of Nauru till the establishment of the Nauruan Court of Appeal in 2018. Constitutional establishment It is established by part V of the Constitution, adop ...

by three detainees, in the case of ''Amiri v Director of Police''.''Amiri v Director of Police'
(2004) NRSC 1
The detainees also sought the issue of writs of habeas corpus, but the Supreme Court found that the detention scheme under Nauru's ''Immigration Act 1999'' 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 Appeals to High Court.), in the case of ''Ruhani v Director of Police (No 2)'',. where all judges except

Justice Kirby Michael Donald Kirby (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement; in May 2013 he was appointed by the United ...

upheld the Supreme Court's decision.

References

{{DEFAULTSORT:Ruddock V Vadarlis Federal Court of Australia cases Australian constitutional law Australian migration law 2001 in Australian law 2001 in case law Right of asylum case law Right of asylum in Australia