Minister for Immigration and Multicultural Affairs & Ors




Eric Vadarlis






Minister for Immigration and Multicultural Affairs & Ors




Victorian Council for Civil Liberties Incorporated & Ors


V 1008 of 2001









1.      On 11 September 2001, Justice North made orders directing the Commonwealth to release people who had been rescued from a sinking vessel by the Norwegian ship, the MV Tampa, on 26 August. On 3 September those people were transferred to HMAS Manoora, in Australian territorial waters off Christmas Island.† His Honourís orders directed that the persons be brought ashore to a place on the Australian mainland.† The circumstances surrounding the rescue by the MV Tampa, its presence in Australian territorial waters, and the refusal by the Australian Government to allow it to land the rescuees are well known.† They will be set out in detail in the Courtís reasons for judgment.

2.      Justice North's order was by way of habeas corpus and was granted on the basis that the Commonwealth had detained without lawful authority the people rescued by MV Tampa.† The orders were made on applications by the Victorian Council of Civil Liberties Inc and by a Victorian solicitor, Mr Eric Vadarlis.†

3.      The Commonwealth and the Ministers concerned have appealed against his Honour's decisions.† An application for an urgent hearing of the appeals was granted on Wednesday 12 September and the Full Court sat until late on the following day to hear the submissions of the parties.

4.      Because of the undoubted urgency of these cases, the need for the legal questions to be resolved and for the parties to know what their positions are with the least possible delay, the members of the Court, having reached a clear view about the outcome, have decided to announce the decision of the Court today. They have decided to do so, and to make orders on the appeals, in advance of the publication of their reasons for judgment. Those reasons are lengthy and will be published tomorrow. Another factor that has persuaded the Court to take this course is that information provided to it during the hearing of the appeals suggested that HMAS Manoora is likely to arrive at Nauru today, and she may already have done so.

5.      By a majority, comprising Justices Beaumont and French, the Court has determined that the appeals should be allowed and has set aside the decisions made by Justice North. The majority judges have concluded that the Commonwealth was acting within its executive power under s 61 of the Constitution in the steps it took to prevent the landing of the rescuees.† The closure of the Christmas Island port was done under a statutory authority which was not challenged. The majority has also concluded that the rescuees were not detained by the Commonwealth or their freedom restricted by anything that the Commonwealth did.†

6.      The Chief Justice has dissented. He has taken the view that whilst the power to expel people entering Australia illegally is undoubted, it is a power that derives only from laws made by the Parliament and not from powers otherwise exercisable by the executive government. He has taken the view that since the powers provided in the Migration Act 1958 have not been relied upon, the Commonwealth government had no power to detain those rescued from the Tampa. He considers that on the facts of the case there was a detention by the Commonwealth and that since it was not justified by the powers conferred by the Parliament under the Migration Act it was not justified by law. He would therefore dismiss the appeals.

7.      The appeals will therefore be allowed and the orders made by Justice North set aside. The parties will have liberty to make submissions on the question of costs.

8.      The judges wish to make it plain that the Court's decision is not, and cannot be,† concerned with either the policy or the merits of the Commonwealth's actions.† That is a debate for other forums. The questions before the Court are questions of law.

9.      This summary is intended to assist in an understanding of the outcome of these appeals. Such summaries are commonly prepared by the Court in cases of public interest, but they are not a substitute for the judgesí reasons which remain the only authoritative statement of the Court.

10.  This summary will be available on the internet at www.fedcourt.gov.au immediately, as will the reasons for judgment when they are published.