Q3 case summaries PDF

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Case Summaries for Q3...

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 Australian Communist Party Case Background  

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The Australian government attempted to outlaw the Communist Party. The preamble/recitals of the relevant act stated that the Communist Party are seeking a violent revolution and an overthrow of the government, thus making it necessary for the government to oust it. The government relied on the defence power to make this law. Six of the Justices ruled that the Act was invalid over the sole dissent of the Chief Justice John Latham. All seven judges accepted that the Commonwealth had legislative power to deal with subversion (although they differed as to the precise location of such a power) and that it had validly done so in the Crimes Act 1914 (Cth). Unlike the challenged law, the sedition provisions left questions of guilt to the courts to determine through criminal trials. However, the Communist Party Dissolution Act 1950 (Cth) had simply declared the Party guilty and had authorised the executive government to 'declare' individuals or groups of individuals.

Defence Power Section 51 (vi) states that the Commonwealth Parliament may legislate with respect to “The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.” This is known as the defence power. 

The defence power is often described as an 'elastic power', referring to the idea that its scope may fluctuate according to the current political situation (ie, in times of war, the power may be used to apply to a lot more areas than in times of peace, since more issues become relevant to the defence of the country).

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Thus, the scope of the law varies according to factual conditions - is Australia in war, is it facing an invasion etc): Andres v Howell.

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The defence power is a purpose power, meaning that it allows the Parliament to legislate in order to achieve a certain purpose. Accordingly, a law purporting to be made under this head of power will be deemed valid only if it actually made for achieving the defence of Australia, as opposed to any law dealing with the defence of Australia (as would be required for a subject-matter power).

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In addition, purpose powers employ a test of proportionality - can the law be seen to be reasonably appropriate and adapted to a defence purpose? This was discussed in Polyukhovich v Commonwealth:

Judgment 

Recitals: this was an attempt of the Parliament to talk itself into power. The recitals cannot be used in order to establish the factual situation of Australia's security - the court looks at the factual situation and does not pay any attention to the 'deemed situation' in the recitals. 

In effect, Parliament took on the role of courts by simply declaring the communist party guilty.

The court noted that the defence power is elastic - it waxes and wanes. It can also be said

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that it has primary and secondary aspects (Fullagar J)- primary being aspects which are directly related to defence (fortifications, conscription etc) and secondary being aspects which may relate indirectly in times of crisis (eg, manufacturing, employment etc) and more generally just extensions of the defence power. The secondary aspect of the power, or the "wide" application of it, is only permissible in

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times of crisis. In the present case, the purported use of the defence power comes within the wide or

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secondary aspect of the power. However, the Court was not convinced that the factual conditions of Australia justify the activation of the secondary aspect of the power (ie, no sufficient threat, no proportionality). The court decided that the primary aspect of the power is to protect against external

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threats. Protection against internal threats requires the secondary aspect of the power. The court determined that it was peacetime in Australia (despite the fact it was in

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the cold war). Exclusion of judicial review: in addition, the act sought to oust judicial review for the

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Governor General's discretions, and the court found that unconstitutional as well.

 Ruddock v Vadarlis Background 

Asylum seekers rescued in international waters by the Tampa (ship).

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Tampa entered Australian waters.

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Asylum seekers were not allowed into Australia, detained and expelled to Nauru

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Government claimed that the detention and expulsion of the asylum seekers was an exercise of prerogative power. 

Blackstone: prerogative powers are powers that are unique to the Crown (ratifying treaties, issuing passports)

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Dicey: broader view: the discretionary or arbitrary powers that the Crown still enjoys (haven’t been eroded).

Judgment Federal Court – North J 

Expulsion of non-residents from Australian waters is not a valid exercise of prerogative power.

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Doubtful that such a power ever existed, but in any case the power would have been extinguished by the Migration Act 1958 (Cth)

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Asylum seekers detained and expelled without lawful authority.

Full Federal Court – Majority opinion 

Does the power exist? 

French J Doesn’t look at whether this power has existed historically – draws he facts that it exists because it is a main sovereign power.

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The power to determine who enters Australia is a main sovereign power. It cannot be that the Constitution or any legislation deprives the government from having this power.

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Prerogative power exists and includes detention and operates alongside the statute.

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While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred from the Constitution.

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Unless modified by statute, s 61 of the Constitution allows the executive to exclude or prevent the entry of a non-citizen to Australia and power incidental thereto.

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Has the power been modified by statute? 

No express words that suggest that the Migration Act 1958 aims to abrogate this power.

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The Act seeks to confer power, not curtail it.

Decision reversed, valid exercise of power.

Full Federal Court – Dissenting opinion 

Prerogative powers are dated. “Prerogative powers have become incompatible with modern constitutional jurisprudence”

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If a prerogative power has not been applied for an extended period it cannot be revived. 

Though some argue under ‘propitious circumstance’ it can be.

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The prerogative has not been applied since 1771

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Whilst the existence of the prerogative was doubtful, judges focused on the extent to which the prerogative power is displaced by the migration act.

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Long title of the Act reads ‘the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of Aliens’. 

The Border Protection Amendment Act 1999 extended its relevance to Australia’s sea borders.

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“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”.

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Not a valid exercise of prerogative power.

 Al-Kateb v Godwin Background -

Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia in 2000 and applied for a temporary protection visa. The Commonwealth Minister for Immigration's decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court.

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In 2002, Al-Kateb declared that he wished to return to Kuwait or Gaza. However, since no country would accept Al-Kateb, he was declared stateless and detained under the policy of mandatory detention.

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The two main issues considered by the High Court were whether the Migration Act 1958 (the legislation governing immigration to Australia) permitted a person in Al-Kateb's situation to be detained indefinitely, and if so, whether this was permissible under the Constitution of Australia. A majority of the court decided that the Act did allow indefinite detention, and that the Act was not unconstitutional.

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The controversy surrounding the outcome of the case resulted in a review of the circumstances of twenty-four stateless people in immigration detention. In 2007, nine of these people, including Al-Kateb, were granted bridging visas and allowed to enter the community.

Judgment -

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The ultimate decision, reached by a majority of four judges to three, was that the Migration Act did permit indefinite detention. Each judge delivered a separate judgment with Justices McHugh, Hayne, Callinan and Heydon forming the majority, although Justice Heydon agreed entirely with Justice Hayne, and offered no extra reasoning. Chief Justice Gleeson and Justices Gummow and Kirby dissented, finding instead that the Migration Act should not be interpreted to permit indefinite detention....