JURISDICTION - HABEAS CORPUS
24 The claim with which I am currently concerned is the claim for an order "in the nature of habeas corpus". Such a claim was successful in Al Masri v Minister for Immigration and Multicultural Affairs (2002) 192 ALR 609, a decision which was confirmed on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 (Al Masri). The reasoning of the Full Court in Al Masri has been challenged in an appeal to the High Court from the judgment of Mansfield J in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. The decision of the High Court on that appeal is currently reserved. In many situations it would be appropriate to adjourn proceedings where the applicable law has been argued before the High Court and a decision is reserved. That is not appropriate in a case involving mandatory detention. There is no choice but to proceed on the basis that Al Masri is good law at least for what that case actually decides. Unfortunately, given the complexity of the factual situation presented by this case, and the submissions that have been made to me, the fact that I am bound by that Full Court decision does not obviate the need for me to analyze and reflect on the reasoning in Al Masri in some detail.
25 Al Masri involved a Palestinian citizen who was in detention pending removal to Palestine. It was accepted that he was entitled to reside in Palestine if he could get there. However, access to Palestine could only be arranged through Israel. DIMIA had been attempting for a period of some six months to arrange such access, but without any success. Nor was there any obvious basis for assuming that that situation was likely to change. Merkel J, at first instance, held that the continued detention in these circumstances was unlawful and he ordered that the detainee be released. However, his Honour also held that the detainee was liable to be taken into detention again when that detention could be justified (see [2002] FCA 1099). The Full Court affirmed the orders made by Merkel J.
26 In Al Masri the Full Court confirmed the jurisdiction and power of this Court to make orders "in the nature of habeas corpus" (at 240-241 [170]-[172]):
'It has also been said that an application for relief in the nature of habeas corpus, such as was made here, is fundamentally misconceived and that the appropriate way to proceed was by way of application for mandamus to compel an officer to perform the duty of removing an applicant or removing an applicant as soon as reasonably practicable: see, for example, Beaumont J in NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 at [11]; Whitlam J in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 52 at [37]; Selway J in SHFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 29 at [18]; Emmett J in NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 at [68]). We are unable to agree with this criticism. In Lau v Calwell , considered earlier, some of the applications considered by the High Court were for habeas corpus which had been sought on the basis that the provision justifying detention in custody pending deportation was invalid. The applications were dismissed, but Latham CJ expressly referred to habeas corpus as providing an immediate remedy (at 556):
"The power to hold [a deportee] in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy ." [Emphasis added.]
Dixon J proceeded on the same basis (at 581); see also Williams J at 586. And see generally Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637.
It would seem, too, that Mason CJ had the same view about possible remedies when, in Lim (at 11-12) he observed that what initially began as lawful custody might " cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia" in conformity with the relevant part of the Act. A failure to remove a designated person from Australia " as soon as practicable" pursuant to s 54P(1) would, in the view of Mason CJ, have deprived the Executive of legal authority to retain that person in custody (see at 12). This is not the language of mandamus; the remedy that this language suggests is, to recall the language of both Latham CJ and Dixon J in Lau v Calwell, habeas corpus to provide an immediate remedy.'
27 The issue of jurisdiction to make such orders, and what is meant in doing so, requires some consideration in this case, if only because the applicant has argued that the onus of proof in these proceedings rests upon the Minister. The applicant has relied upon comments to that effect in Al Masri at 282 [176] which supported the approach of Merkel J (at (2002) 192 ALR 609, 619 [41]) that "it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities". For this conclusion Merkel J (at 616 [26]) relied upon the comments of the House of Lords in R v Home Department State Secretary; Ex parte Khawaja [1984] AC 74, (Khawaja) and of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (Lam).
28 In Khawaja the proceedings were for certiorari and for declarations. Habeas corpus was not sought. Lord Wilberforce at 105 and Lord Bridge at 123-124 held that the burden of proof rested upon the immigration authorities to justify their detention of a person when that detention was challenged by habeas corpus. Each treated this principle as applicable to the judicial review proceedings that were before them. Lord Scarman at 111-112 held that the procedure, including the burden of proof, in judicial review proceedings involving the liberty of the subject, should be treated as equivalent to those applicable in habeas corpus proceedings.
29 Lam was a case involving habeas corpus.
30 The applicant also relied upon the comments in Clark and McCoy, Habeas Corpus: Australia, New Zealand The South Pacific (2000) (Clark & McCoy) at 227-228. Those comments are specifically made in the context of the habeas corpus procedure, but would appear to be based upon a broader proposition related to the "presumption in favour of liberty". The cases cited by the authors are primarily habeas corpus cases and the relevant comments are clearly made in that context: see Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 79. The cases relied upon by the authors which are not habeas corpus cases, such as the comments of Sheppard J in Naumovska v Minister for Immigration and Multicultural and Indigenous (1982) 41 ALR 635 at 644 rely upon cases which are habeas corpus cases.
31 Plainly enough the procedure, including the onus of proof, in habeas corpus proceedings was and is quite specialised. Historically there were a number of writs of habeas corpus each specifically designed to bring a prisoner before a court in particular circumstances. They each developed from a procedural step in the criminal process which was first introduced in the 12th century. By the 16th century the writ of habeas corpus ad subjiciendum had developed to the stage where it was commonly used to test the reason and validity of the imprisonment or detention of a person (see Dallin Oaks "Legal History in the High Court - Habeas Corpus"(1965-1966) 64 Mich L Rev 451, 460-461. The writ was available on application to the Courts of Kings Bench or Common Pleas by a private individual (see Standish Grady & Colley Scotland Law and Practice on the Crown Side of the Queen's Bench (1844) at 203; 3 William Blackstone Commentary *131). Although often sought against a public official who was holding a person in prison usually pending trial, the writ could also be used against a private individual to test the legality of any private incarceration (Rex v Viner (1675) 2 Levinz 128; 83 ER 482; Rex v Johnson (1723) 2 Ld Raym 1333; 92 ER 370).
32 The jurisdiction to grant the writ and the procedure related to it were significantly affected by statute, particularly the Habeas Corpus Act, 1640 (16 Cha 1 c 10); the Habeas Corpus Act, 1679 (31 Cha 2 c 2) and the Habeas Corpus Act 1816 (56 Geo 3 c 100) ("the 1816 Act"). Although in terms all of these Acts would seem to be directed to acts and events in the United Kingdom, it is generally accepted that all of them were received into South Australia upon settlement in 1836.
33 The procedure for release from unlawful detention pursuant to the writ involved initially an application for the issue of the writ (see Short & Mellor, The Practice of the Crown Office (2nd ed, 1908) at 319). The application was supported by an affidavit usually made by the person detained. The application came before the Court of Kings Bench or the Court of Common Pleas which could order that the writ be issued to the person alleged to be unlawfully detaining the applicant. Strictly, the "order" for habeas corpus was not an order at all, but a summons requiring the person to whom it was directed to bring the person in detention before the Court and to make a "return" on the writ. The return set out in some detail the legal justification for the detention. The Court then determined whether or not the person detained should be released from custody, whether the writ should be discharged or whether the return should be quashed as containing insufficient detail.
34 Historically the court could not go behind the return (see Standish Grady & Colley Scotland Law and Practice on the Crown Side of the Queen's Bench (1844) at 213; Dallin Oak Legal History in the High Court - Habeas Corpus (1969-1966) 64 Mich L Rev 451, 453-456; RJ Sharpe The Law of Habeas Corpus (2nd ed; 1989) (Sharpe) at 23). Unless the return disclosed on its face that the imprisonment was unlawful, the court could not determine, for example, whether a judicial order for imprisonment was invalid. Other procedures, such as certiorari, were necessary for that purpose: see Seers v Turner (1704) 2 Ld Raym 1102; 92 ER 230; Re Stanbridge's Application (1996) 70 ALJR 640, 642-643; Phong v Attorney-General (Cth) (2001) 185 ALR 753, 761 [25]. This would still seem to be the law in Australia in relation to a person detained upon a criminal process, although it is suggested in The King v Bevan Ex parte Elias and Gordon (1942) 66 CLR 452 at 475 per Starke J, that if the return even in relation to a criminal process is obviously false then commitment for contempt may be available to force a true return. I note, however, that in Re Governor Goulburn Correctional Centre Ex parte Eastman (1999) 200 CLR 322 the High Court inquired into the validity of the appointment of the Judge who had issued the relevant warrant. The case would seem to have been a habeas corpus case, although it is not clear from the report what procedure was adopted to bring these issues before the Court. In any event, that case involved constitutional questions which might raise different considerations: see Gerhardy v Brown (1985) 159 CLR 70 at 141-142.
35 Whatever the situation may now be in criminal matters, the 1816 Act did permit the Court to go behind the return in civil matters. However, the terms of the 1816 Act would seem to limit any evidence before the court, to evidence given by affidavit: see Lloyd v Wallach (1915) 20 CLR 299, 305, 308-309, 313 (Lloyd); R v Board of Control Ex parte Rutty [1956] 2 QB 109, 119, 124. In more recent times English courts have taken a much broader view of the effect of the 1816 Act (see R v Secretary of State for the Home Department, Ex parte Iqbal [1979] 1 All ER 675, 684) and of the availability of the writ as an alternative to the more usual judicial review procedures: see HRW Wade "Habeas Corpus and Judicial Review"(1997) 113 LQR 55. In Khawaja, for example, Lord Scarman at 110 not only accepted that the 1816 Act authorised the Court to go behind the return and to hear oral evidence, but that section 3 of that Act "is the beginning of the modern jurisprudence the effect of which is to displace, unless Parliament by plain words otherwise provides, the Wednesbury principle in cases where liberty is infringed by an act of the executive." Of course that "modern jurisprudence" has not been accepted in Australia: see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36, whether or not the source of it can be laid at the door of the 1816 Act.
36 There is some Australian authority that would seem to support the approach taken by the English courts: see Clark & McCoy at 215-216. In particular, it would appear that Justice Evatt would have permitted cross examination upon the affidavits filed in R v Carter Ex parte Kisch (1934) 52 CLR 221, see at 227-228. His Honour did not refer to Lloyd; nor did he refer to the terms of the 1816 Act.
37 These procedural aspects of the writ are reflected in the various Rules of Court of those Courts which have jurisdiction to grant the writ, either because they have the jurisdiction formerly exercised by the Kings Bench and by Common Pleas (such as the Supreme Court of South Australia) or because the jurisdiction has been conferred expressly: see s 33(1)(f) of the Judiciary Act, 1903 (Cth) which confers such jurisdiction on the High Court. Of course, the High Court can only grant habeas corpus as an incident to the exercise of original or appellate jurisdiction conferred on that Court under Chapter III of the Constitution: see Re Superintendent of Training Centre at Goulbourn and Anor Ex parte Pelle (1983) 48 ALR 225 at 226. Order 55 Rule 38ff of the High Court Rules reflects the procedural background to the writ as discussed above.
38 History aside, there are two reasons why the writ might still be used in practice. One is its expedition: see Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 at 76-77. Indeed, the procedural difficulties referred to above are the direct result of the summary and expeditious features of the writ. But they have the effect that if there is likely to be a factual dispute that cannot be resolved at least on affidavit evidence alone, then different procedures should be adopted. The other reason why it might still be used is that it can be applied for by a stranger (see R v Waters [1912] VLR 372, 375). However, with the greater flexibility in the rules relating to locus standi in more recent times this is not as important an issue as it once was even in relation to equitable relief: see Bateman's Bay v Aboriginal Fund (1998) 194 CLR 247, 267-268. The reality is that the habeas corpus procedure is rarely used in practice even in those courts which have jurisdiction to grant it.
39 The most obvious alternative procedure that might be adopted in cases where there are complex factual issues requiring determination is to apply for an injunction against the person having the custody of the person in detention. Historically there may have been some reason to be cautious about the availability of an injunction in these circumstances. There was at least some authority to suggest that injunctions were not available against the Crown or against a public officer acting in an official capacity: see R v Transport Secretary Ex parte Factortame [1990] 2 AC 85, 145. For my part, I am not certain that that was ever a correct statement of the liability of public officers to equitable relief. Injunctions would seem to have been available against public officers even when acting "officially": see Rankin v Huskisson (1830) 4 Sim 13; 58 ER 6; Nireaha Tamiki v Baker [1901] AC 561, 573-574. In particular, injunctive remedies were granted by the Court of Exchequer against public officers. In any event, such an immunity from injunctive relief (if it ever existed) did not survive the enactment of s 64 of the Judiciary Act, 1903 (Cth) in relation to suits in federal jurisdiction. It may be noted that whatever limitations there may have been upon the jurisdiction to grant injunctions against public officers in England no longer exist even there: see M v Home Office [1994] 1 AC 377.
40 Injunctive proceedings to test the lawfulness of detention and, if found to be unlawful, to order release, are clearly available in cases where there are procedural or jurisdictional difficulties in using habeas corpus: see City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 145-146, 157-158; David Wright, "The Role of Equitable Remedies in the Merging of Private and Public Law" (2001) 12 PLR 40. In relation both to injunctive proceedings (see Application Des Gaz SA v Falks Veritas Ltd [1974] 1 Ch 381 at 399) and to habeas corpus proceedings (see Clark & McCoy at 225; Sharpe at 179) the entitlement to final orders is determined as at the date the question falls to be decided, rather than the date the application is issued. Indeed, Dobbs, Law of Remedies (2nd ed, 1993) treats habeas corpus (and prohibition and mandamus) as injunctive remedies that could be issued by Kings Bench. Save for the procedural or jurisdictional limitations in relation to habeas corpus and the more limited standing rules in relation to injunctions, there is no reason why the same result would not be reached using injunctive procedures, rather than habeas corpus. Admittedly an application for injunctive relief is not necessarily as expeditious as is the procedure in relation to habeas corpus, but this does not mean that an expeditious hearing can not be facilitated. Given that the orders that can be made in a habeas corpus proceedings are limited to the release or the continued detention of the person, similar results can be achieved using injunctive relief. Indeed, one of the advantages of an injunction is that it is a more flexible remedy which can also be used where it is the conditions of detention that are unlawful and not only the detention itself - this could not be done in habeas corpus proceedings: see Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 633.
41 In my view this Court does not have the jurisdiction to grant a writ of habeas corpus. I respectfully agree with and adopt what Beaumont J said on this topic in Ruddock v Vadarlis (2001) 183 ALR 1, 28-29 [101]-[107] contrast Victorian Council for Civil Liberties v Vadarlis (2001) 182 ALR 617 per North J. This Court does not have the jurisdiction historically exercised by the Courts of the Kings Bench or of Common Pleas. Nor has it had the jurisdiction conferred by statute. However, this Court does have jurisdiction in any matter where an injunction is sought against an officer of the Commonwealth: Judiciary Act, 1903 (Cth) (Judiciary Act) s 39B(1). It also has jurisdiction in any matter "arising under a law made by the Parliament": Judiciary Acts 39B(1A)(c). This would necessarily include the lawfulness or otherwise of the detention of a person pursuant to the Act. Plainly enough, this Court does have jurisdiction to inquire into the lawfulness of that detention. In this case both parties agree that if the applicant's detention is lawful, the source of that legal authority is the Act. In relation to a matter in which the Court has jurisdiction, it has the power to grant "all remedies to which the parties may be entitled": Federal Court of Australia Act, 1976 (Cth) (FCA) s 22. Plainly this Court has jurisdiction in relation to a claim which alleges that an officer of the Commonwealth who purports to detain an applicant pursuant to the Act, has no lawful authority to do so. If the Court is satisfied that the detention is unlawful the Court can order the officer of the Commonwealth to release that person.
42 Having regard to the above I do not think that the holding by the Full Court in Al Masri that this Court can make orders "in the nature of habeas corpus" should be understood as suggesting that this Court has jurisdiction to issue a writ of habeas corpus. Rather, it seems to me that the correct understanding of the Full Court's reasons and analysis is that this Court has jurisdiction to determine the legal validity of detention under the Act and that it has the power to order the release of the person detained if it finds that the detention is not lawful. Nor does it seem to me that the Full Court's reasons should be understood as requiring this Court to comply with the historical procedural limitations applicable to the writ of habeas corpus.
43 In my view, if relief were warranted, it would be injunctive relief, but the practical effect would be the same as if the detention were found to be unlawful upon a writ of habeas corpus. Of course, given the breadth and flexibility of injunctive relief and of the powers of the Court under FCA s 22 the possibility exists that any final injunction, including one requiring the release of a person in detention, could be subject to conditions. Save, perhaps, for orders specifying the place of release of persons who are not physically before the court, I doubt that such conditions can be imposed upon a final order for release in habeas corpus proceedings, at least in the absence of legislation authorising such conditions (contrast, for example, 28 USC s2243 authorising US federal courts to give such relief "as law and justice require": In re Bonner 151 US 242, 261 (1894); Richmond v Lewis 506 US 40, 52 (1992)). In Al Masri conditional orders were made requiring the person unlawfully detained to report to the government and to comply with arrangements for his removal from Australia (see 192 ALR 609 at 624). It is not clear to me whether the power to make such orders was raised on the appeal before the Full Court. Nevertheless, the Full Court confirmed in Al Masri at 270[128] that conditional orders could be made. The orders actually made in Al Masri confirm that the Court was not purporting to exercise jurisdiction to grant habeas corpus, but was doing what the Full Court said it was doing - making orders "in the nature of habeas corpus". The relevant jurisdiction was that conferred under s 39B the Judiciary Actand the orders made were mandatory injunctions.
44 Against this background, the question that needs to be determined is not some procedural or evidentiary issue derived from the peculiarities of the habeas corpus procedure and turning on the burden of proof. Rather the issue is the substantive one of whether, on the evidence before me, I am satisfied that the applicant is unlawfully detained.
45 The procedure that was adopted in this case bears no relationship with those in habeas corpus proceedings. The applicant sought and obtained orders for discovery and both parties have filed such affidavits as they proposed to rely upon; both parties have led oral evidence from such witnesses as they wished to call and were available (including two witnesses who gave evidence by video link from South Africa) and both parties have cross examined the witnesses called by the other. Technical procedural questions relating to the obligations of a respondent to a writ of habeas corpus and of the sufficiency of a return to such a writ have no application to the proceedings before me, whatever assistance they may give in other proceedings where it has not been possible to explore the evidence in the detail that was done in this case.