Re Bolton; Ex parte Beane [1987] HCA 12

In Reg. v. Peterson; Ex parte Hartmann [28] , Newton J. of the Victorian Supreme Court held that, upon the true construction of the Act, the provisions of s. 19(1) were not applicable to a member of the forces of another country who had deserted or absented himself without leave from those forces elsewhere than in Australia and had subsequently come to Australia. His Honour held that the provisions of the sub-section authorized the arrest and delivery of a person to the armed forces of a foreign country only if that person had deserted or absented himself without leave from a part or unit of those forces while it was in Australia as a visiting force. The reasons which led his Honour to reach that conclusion are set out with clarity and precision in his judgment and it is unnecessary that I repeat them in detail. In summary, they include: the prima facie inference to be drawn from the name and long title of the Act which provided the context for the provisions of Pt III and which disclosed that the primary concern of the Act was to make provision in respect of visiting forces in this country; the consideration that the jurisdiction expressly conferred by s. 8 of the Act upon the service authorities of another country was, subject to a presently irrelevant exception (s. 8(2)(b)), confined to jurisdiction over the "members" of a "visiting force of that country" in Australia; and, the requirement that the provisions of Pt III, being essentially penal in character, should be narrowly construed so that they derogated from the liberty of the subject only to the extent warranted by a clear legislative intent to be discerned in the words of the statute. It suffices, for present purposes, to say that I find those reasons to be generally persuasive and that I agree with the confined construction of s. 19(1) which they led Newton J. to accept. It is conceded by the respondents that Mr. Beane has never absented himself in Australia from a visiting force of the United States. It follows that the request by the United States authorities for his apprehension and handing over was not authorized by the provisions of the Act. That being so, the arrest and detention of Mr. Beane by the respondents were unlawful and he was entitled to a writ of habeas corpus.

There are some further matters to which it seems to me to be desirable to make some reference in this judgment. The first arises from the fact that the decision of Newton J. in Peterson was given in 1968. It would not seem to have been sought by the Commonwealth to challenge the correctness of the decision during the period in which the provisions of Pt III (which were repealed by the Defence Acts Amendment Act 1981 Cth) remained in force. In the years before its repeal, only minor formal amendments were made to s. 19(1) without any attempt being made to overcome the effect of the decision in Peterson . There is an obvious likelihood that persons who, at some past time, had absented themselves without leave in places other than Australia from the forces of some foreign country and who had subsequently settled, as residents or citizens, in this country would have regulated their lives upon the basis that the decision in Peterson was accepted by the Commonwealth authorities as an authoritative statement of the effect of the then Commonwealth legislation. In these circumstances, and in a situation in which it could not reasonably be denied that the conclusion reached by Newton J. was at least arguably correct, there would have been powerful reasons of justice militating against disturbing the construction given to s. 19(1) of the Act by Peterson's Case even if, as a bare question of statutory construction, the construction for which the Commonwealth authorities now again contend had appeared to be the preferable one. There is, no doubt, room for legitimate differences of opinion about any precise general definition of the circumstances in which the doctrine of stare decisis should restrain an appellate court from overruling the authority of a long-established decision of an inferior court. In a case such as the present however, where neither dictates of general principle nor considerations of general policy, individual justice or practical inconvenience (cf. Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation [29] , per Dixon J.; Brownsea Haven Properties Ltd. v. Poole Corporation [30] , per Lord Evershed M.R.) militate in favour of the overruling of a long-established and arguably correct decision upholding the liberty of the individual on a question of the construction of the words of a statutory provision, the considerations of practical justice and judicial responsibility which underlie the doctrine of stare decisis are likely to all but compel acceptance of the earlier decision as having settled the narrow question of the construction of those particular words in their particular statutory context. That position is even a fortiori where, as here, people may well have regulated their lives upon the basis of the earlier decision which was allowed to remain unchallenged and where the relevant statutory provision was allowed to remain on the statute book for years without significant amendment being made to it and has since been repealed.

1. (1948) 77 C.L.R. 544, at p. 565. 2. [1958] Ch. 574, at pp. 603-605.

The second further matter is that it was submitted on behalf of the respondents that the second reading speech of the responsible Minister, to which reference should, so it was said, be made pursuant to the provisions of s. 15AB of the Acts Interpretation Act 1901 Cth, discloses that the powers of arrest, detention and delivery up to a foreign force which the Act confers were intended to be applicable regardless of whether desertion from that force had occurred elsewhere than in Australia. The simple answer to that submission is that such a construction of s. 19(1) would involve, as Newton J. pointed out in Peterson , a substantial derogation from the rule that, "subject to extradition and migration legislation, every person coming from abroad, as soon as he sets foot in Australia without breach of Australian law, is free". A legislative provision should not be construed as effecting such a derogation from fundamental principle relating to the freedom of the subject in the absence of a clear legislative intent that it should be so construed. No such clear legislative intent is to be discerned in the provisions of the Act and, notwithstanding s. 15AB of the Acts Interpretation Act, the second reading speech of the responsible Minister cannot supply the deficiency. A less obvious answer to the submission based on s. 15AB is that to attribute to the provisions of that section, which were first enacted in 1984, the effect of altering the correct construction of prior legislation would be to attribute to what should be seen as no more than an aid to interpretation the effect of a substantive and retrospective amendment of the prior legislation.

The third further matter is that the clear view to which I have come in relation to the construction of the provisions of s. 19(1) makes it unnecessary that I express a conclusion in relation to two other questions which were discussed in argument. The importance of those questions is, however, such that it seems desirable that specific mention should be made of each of them. The first of those questions is whether (as submitted on behalf of Mr. Beane) the conferral by s. 21 of the Act upon an "authorized officer" of the power to decide whether "he is satisfied that the person held in custody should be released" represents a purported conferral upon the Executive of part of the judicial power of the Commonwealth. Upon their face, the provisions of s. 21 would seem to confer administrative rather than judicial power. Against that, as counsel for Mr. Beane stressed, the authority conferred by s. 21 upon an authorized officer is, upon analysis, effectively authority to decide on the merits whether a person should be released or delivered into custody and there is plainly something to be said for the view that authority of that nature commonly lies close to the heart of judicial power. The other question upon which it is unnecessary to express any conclusion arises from a submission of the respondents that, if the provisions of Pt III were construed so as to authorize the apprehension and delivery of a citizen or resident who had deserted or absented himself without leave from the forces of another country before coming to Australia, such a citizen or resident could subsequently be held in custody or removed from this country by any visiting unit, ship or aircraft of the forces of that country which might subsequently be in Australia or which might come to Australia to receive him notwithstanding the inapplicability of the provisions of s. 8 of the Act conferring local authority and immunity upon the service authorities and service tribunals of other countries. The reason for that was, so it was said, that any visiting force of another country which comes to Australia at the invitation of the Commonwealth Executive enjoys, even in the absence of any applicable Commonwealth or State legislation conferring local authority or immunity, a wide general immunity from both Commonwealth and State jurisdictions in the face of which the ordinary rights of the individual under the law are unavailing. In support of that broad and surprising proposition, reliance was placed by the respondents on obiter statements to be found in some of the judgments in Chow Hung Ching v. The King [31] . If and when it becomes necessary to consider the extent, if at all, to which that broad proposition and those obiter statements should be accepted, a convenient starting point for that consideration would seem to me to be the exposition of basic principle to be found in the dissenting judgment of Duff C.J.C. in Reference re Exemption of United States Forces from Canadian Criminal Law [32] .

1. (1948) 77 C.L.R. 449. 2. [1943] 4 D.L.R. 11.

The final matter to which I would make reference is of considerable general importance. It is that, as appears from what has been said above, administrative action was taken by officers of the Commonwealth to deprive a resident of this country of his liberty notwithstanding that there was a long-standing and long unchallenged Supreme Court decision (Peterson ), given in proceedings to which the Commonwealth had effectively been a party, denying the lawfulness of such administrative action in the circumstances of the case. If Mr. Beane had not had the initiative and the will to take legal action, he may well have been handed over to the United States authorities and forcibly taken by them from this country in direct disregard of a Supreme Court decision which, for so long as it stood undisturbed, established the unlawfulness of his arrest and detention in custody and of any such forcible removal. Examination of the material before the Court does, however, indicate a possible explanation of why it was that anterior legal proceedings were not instituted by the Commonwealth against Mr. Beane, before his arrest and detention, to challenge the correctness of the decision in Peterson's Case and to attempt to establish that, contrary to what had been decided in that case, there did exist a statutory basis for what officers of the Commonwealth were proposing to do. It would seem that, due to an ambiguity in the original request of the United States authorities, the Australian Naval authorities mistakenly assumed that it was in Sydney that Mr. Beane had absented himself without leave from the United States forces. In the absence of some such explanation, it would be difficult to avoid the conclusion that, at least at some levels of Executive authority in this country, there are those who need to be reminded of the importance of the matters mentioned in the first paragraph of this judgment. Even if some such explanation of the disregard of judicial decision be available, there would obviously remain room for concern about whether adequate steps were taken to ascertain the facts of the case before a warrant was issued authorizing the arrest and detention in custody of a resident of this country upon the basis of ambiguous assertions made by the authorities of another country.

I agree with the orders proposed by Mason C.J., Wilson and Dawson JJ.

The applicant, Mr. Beane, is seeking against the Captain of H.M.A.S. "Penguin" and the Minister of State for Defence writs of habeas corpus and prohibition aimed at releasing him from the custody of Australian Naval Forces and at preventing the issue of a warrant for his delivery into the custody of a service authority of the United States of America.

Mr. Beane is an American citizen who enlisted in the Marine Corps of the United States on or about 1 July 1965. He served in Vietnam and on 28 February 1970, while a patient in the United States Naval Hospital in Da Nang, he left the hospital without permission. On or about 27 April 1970 he left Vietnam and about a day later arrived in Australia. He has remained in Australia ever since.

The facts just mentioned are not in dispute but there is an issue as to whether, at the time he left the hospital, Mr. Beane was still a member of the Marine Corps and therefore whether he is a deserter or absentee without leave from the Marine Corps. With the leave of the Court, that issue has been deferred.

The main question before the Court is whether steps taken for the apprehension of Mr. Beane were lawfully taken. If they were not, he is entitled to be released from custody. If Mr. Beane's apprehension was in that respect lawful, a question then arises as to whether the relevant statutory provisions give rise to an exercise of judicial power by the Minister and whether any decision made in exercise of that power is void because judicial power may only be exercised by a court.

The starting point for a consideration of the relevant statutory provisions is the Defence (Visiting Forces) Act 1963 Cth. Parts III and IV of the Act were repealed and re-enacted in the Defence Act 1903 Cth by the Defence Acts Amendment Act 1981 Cth. But transitional provisions maintain the operation of the repealed provisions so that steps taken under them have a continued efficacy as if made under the re-enacting statute.

Part III of the Defence (Visiting Forces) Act was headed "Deserters and Absentees Without Leave". Section 19(1) provided that where the "designated authority" of a country in relation to which the section applied, by writing under his hand requested an "authorized officer" for assistance in the apprehension of a member of the forces of that country who was a deserter or an absentee without leave from those forces, the authorized officer might in his discretion issue a warrant for the arrest of that deserter or absentee. The term "authorized officer" was defined by s. 19(2) to mean an officer of the Defence Force authorized by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff for the purposes of Pt III. A warrant authorized arrest by a member or special member of the Australian Federal Police, a member of the police force of a State or Territory or any member of the Defence Force: s. 19(1). (The meaning of "the Defence Force" is to be found in the Defence Act.)

A reference in the Act to a country in relation to which a provision of the Act applied was, by s. 6(1), a reference to:

(a) any country declared by the regulations to be, for the purposes of this Act, a country within the Commonwealth of Nations; and

(b) any other country declared under this section to be a country in relation to which that provision has effect.

Succeeding sections of Pt III provided for the detention of a person arrested under s. 19 and for the delivery of that person into the custody of the service authority of the country to which he belonged as specified in the warrant, subject to a procedure whereby a claim by the person arrested that there was a good and sufficient reason why he should be released from custody was referred to the authorized officer and thereafter to the Minister.

Although the amendments made by the Defence Acts Amendment Act were in force at the time of Mr. Beane's arrest, the relevant request for assistance in his apprehension had been made in November 1982 under s. 19(1) of the 1963 legislation. (The 1981 amendments were not proclaimed until August 1983.) All subsequent steps were taken under the Defence Act as amended.

The lawfulness or otherwise of the request for Mr. Beane's arrest turns on whether Pt III of the Defence (Visiting Forces) Act applied only to deserters and absentees without leave from visiting forces or whether it applied to deserters and absentees from any country declared by the regulations to be a country within the Commonwealth of Nations or any other country declared under s. 6 to be a country in relation to which the provisions of Pt III had effect. The United States of America was declared under s. 6 by cl. 5 of the Defence (Visiting Forces) Regulations (Cth). The respondents conceded that Mr. Beane was not at the time of his alleged desertion or absence without leave, or at any time thereafter, a member of a visiting force.

Mr. Beane's argument was that the title of the Defence (Visiting Forces) Act is a guide to the content of the legislation, that Pt III cannot be isolated from the remainder of the statute and that the various parts of the legislation are interdependent. Strong support for that argument is to be found in the judgment of Newton J. in Reg. v. Peterson; Ex parte Hartmann [33] . His Honour held that the provisions of s. 19 of the Act were applicable only to deserters and absentees from a visiting force present in Australia. Since counsel for the applicant relied so heavily on Peterson , it is useful to state in summary form the reasons that led Newton J. to reach the conclusion he did:

The title of the Act is some indication that Pt III is restricted to deserters and absentees without leave from visiting forces.

The fact that the ultimate object of Pt III is the lodging of a deserter or absentee in the custody in Australia of a service authority of his own forces suggests that he will be a deserter or absentee from a visiting force, because otherwise there might well not be any service authority of his own forces in Australia.

By s. 8 of the Act the jurisdiction within Australia of service authorities of another country is confined to jurisdiction over members of a visiting force of that other country. Hence if a person who is a member of another country's armed forces, but not a member of a visiting force, is delivered into the custody in Australia of a service authority of his country, that service authority has no jurisdiction over him in Australia nor any right to detain him in Australia against his will.

If Pt III is independent of the rest of the Act, s. 19 operates as a penal provision, constituting a significant exception to the general rule that, subject to extradition and migration legislation, every person coming from abroad, as soon as he sets foot in Australia without breach of Australian law is free.

The 1963 statute repealed the Defence (Visiting Forces) Act 1939 Cth which was not confined to visiting forces. But Pt III of the 1963 Act drew no express distinction between deserters and absentees from visiting forces and those from other forces and made no provision for handing over the latter at a place "on the coast or frontier of the Commonwealth": see s. 8(2) of the 1939 Act. Those circumstances supported the conclusion that Pt III was intended to apply only to visiting forces.

These arguments have much force but in my view they cannot prevail. To begin with, there is within the framework of the Defence (Visiting Forces) Act sufficient indication that Pt III is independent of Pt II and that it is not confined to visiting forces. That conclusion is supported by the history of relevant legislation. If there is any doubt about the matter, that doubt is put to rest by reference to the second-reading speeches in the Parliament when the 1963 legislation was introduced and when the 1981 amendments were made.

The title of the 1963 Act - "An Act to make provision with respect to Naval, Military and Air Forces of other countries visiting Australia, and for other purposes" - is equivocal. Certainly it places emphasis on visiting forces but it concludes with the words "and for other purposes". Pt III, which was headed "Deserters and Absentees Without Leave", was a separate part of the Act. So too was Pt IV which was headed "Attachment of Personnel and Mutual Powers of Command". There was nothing in the language of either part to confine its operation to visiting forces. The term "visiting force" is defined by s. 5(1) to mean "any body, contingent or detachment of the forces of a country that is for the time being present in Australia by arrangement with the Minister". By s. 5(2), a reference in the Act to a member of a visiting force is to be read "as a reference to a person who, in accordance with the law of the country to which the visiting force belongs, is serving as a member of the visiting force". Not only is Pt II headed "Visiting Forces", it is replete with references to a member of a visiting force: see for instance ss. 8(2), (3), (7), 9(1), 13, 16(1), (2), 17(1) and 18(1). There was no such reference in Pt III. Of course that is not to say that a deserter or absentee from a visiting force was not caught by the operation of Pt III; it simply means that the operation of the part was not limited to those persons.

It is also of some interest, though not overly persuasive, that Pt II contains a number of references to actions by the Attorney-General whereas the relevant officer under Pt III was the Minister. The distinction is at least a pointer to the two parts operating independently of each other.

The argument that, since the ultimate object of Pt III was the delivery of a deserter or absentee into the custody in Australia of a service authority of his own forces, it is apparent that he will be a deserter or absentee from a visiting force is not, I think, compelling. Even in the case of a visiting force, by the time a deserter or absentee is arrested there may well be in Australia no service authority of the country to which he belongs. Thus in the case of visiting warships, it will often be the situation that those warships will no longer be in Australia when a deserter or absentee is arrested. But that is of no moment for, by s. 21, delivery of the arrested person was into the custody of "such service authority of the country to which he belongs and at such place in Australia as are specified in the warrant ". Even in the case of a member of a visiting force, he need not be delivered into a service authority of that force.

Of more consequence is the argument relating to s. 8 of the Defence (Visiting Forces) Act which contends that if a person, such as Mr. Beane, who was not a member of a visiting force, was delivered into the custody in Australia of a service authority of the United States, that service authority would have no jurisdiction over him in Australia nor would it have any right to detain him in Australia against his will.

Section 8 does not create jurisdiction. It empowers service tribunals and service authorities of a country to which the section applies to exercise, within Australia or on board a ship or aircraft belonging to or in the service of the Defence Force, over persons subject to their jurisdiction, "all such powers as are exercisable by them in accordance with the law of that country": s. 8(1). The jurisdiction of Australian courts, where a person charged with an offence against a law of Australia or of a State or Territory as a member of a visiting force, is ousted only in regard to those offences mentioned in s. 9. They are offences relating to security of the sending country, offences in the performance of duty and offences against other members of the same force. That jurisdiction may be restored if the designated authority of the sending country notifies the Attorney-General that it does not propose to deal with the case under the law of that country: s. 9(3). Mr. Beane has not been charged with an offence against a law of Australia or of a State or Territory and he is not a member of a visiting force.

A person held in custody under Pt III of the 1963 statute (or Pt IXA of the Defence Act, the re-enacted provisions) must be released from custody or, at the direction of the Minister, be delivered into the custody of the service authority of the country to which he belongs at a place in Australia as specified in the warrant. It is true that, in the case of a deserter or absentee who is not a member of a visiting force, s. 8 has no application. But it is not an inevitable consequence that the service authority has no power over the deserter or absentee in Australia or that it has no right to detain him in Australia against his will. A view of the operation of Pt III based on such an assumption is, in my respectful view, misplaced.

The offence of desertion or absence without leave is one peculiarly relating to the force to which the offender belongs. Public international law recognizes that consent by a receiving State to the entry of forces of another State implies a waiver of the receiving State's normal supervisory jurisdiction over those forces, though the extent of immunity may be debatable: Chow Hung Ching v. The King [34] . See also Barton, "Foreign Armed Forces: Immunity From Supervisory Jurisdiction" in The British Year Book of International Law (1949), p. 380. The service authority to whom a deserter or absentee is to be delivered may be already in Australia. If not, a direction by the Minister under Pt III carried, and a warrant issued by the Minister under Pt IXA carries, an implied permission to the service authority to enter Australia to give effect to the direction or warrant. The person so delivered is subject to the control of the service authority but has such rights as the law of his country permits. In the present case the country is the United States, a country to which Pt III of the 1963 statute applied and to which Pt IXA of the Defence Act applies: see Defence Force Regulations (Cth), reg. 44.

The 1981 amendments contemplate that there may be an interval between arrest and delivery. Section 116E(4) of the Defence Act reads:

For the purposes of the application of this Division in relation to the forces of a country, it is immaterial whether or not any body, contingent or detachment of those forces is present in Australia. Section 116H(4) empowers a service authority into whose custody a person is delivered to remove the person from Australia but nothing in the sub-section "shall be taken to limit any other powers that the authority may have with respect to the person". To the extent that there is a conflict between s. 116H(4) and s. 8 of the 1963 statute, the former must prevail.

Section 8 is not, I think, directly relevant to the issues before the Court. It permits the exercise of power by service tribunals and service authorities in the circumstances there mentioned. But Pt III of the Defence (Visiting Forces) Act expressly authorized, and Pt IXA of the Defence Act expressly authorizes, the handing over to a service authority of a deserter or absentee in the situations with which they deal. (Part IXA speaks only of an absentee without leave.) They serve a different purpose to s. 8. The issue is the range of operation of Pt III; it is common ground that Pt IXA is not confined to visiting forces.

It may be argued that the repeal of Pt III of the Defence (Visiting Forces) Act and its re-enactment as Pt IXA of the Defence Act involved a recognition by the legislature that the earlier provisions relating to deserters and absentees without leave only applied when the person concerned was a member of a visiting force. The inference is open but again the matter is equivocal. And it is apparent from the Parliamentary debates, to which I shall refer, that the argument is not well founded. As to the transfer of the relevant provisions from one statute to the other see Connell, Australian Defence Arrangements, Ch. 9 in International Law in Australia, 2nd ed. (1984), p. 246.

The relevant legislative history supports the conclusion that s. 19 of the 1963 statute was not confined to members of visiting forces. That Act repealed the Defence (Visiting Forces) Act 1939. Notwithstanding the title of the earlier legislation, its provisions relating to deserters and absentees were not confined to visiting forces though they were restricted to forces of the United Kingdom and Dominions. Against the background of World War II and later conflicts and the forging of new alliances, the 1963 legislation widened the range of countries to which the relevant provisions applied. And, in my view, it maintained the notion that the provisions relating to deserters and absentees were not confined to visiting forces. For a discussion of the Visiting Forces Acts, though in a different context see Nichols, The Visiting Forces Acts: A Study in Inter-Service Command and Discipline, The Strategic and Defence Studies Centre, working paper No. 38 (1981).

Any doubt about the matter is, I think, resolved by a consideration of the second reading speeches in the House of Representatives and the Senate at the time the Defence (Visiting Forces) Act 1963 was introduced. Those speeches are among the admissible material referred to in s. 15AB(2) of the Acts Interpretation Act 1901 Cth. The material is therefore capable of assisting in ascertaining the meaning of provisions in Pt III of the Defence (Visiting Forces) Act if those provisions are ambiguous or obscure. This I take to be so, notwithstanding that Pt III had been repealed before s. 15AB was enacted. In any event, the conclusions I have reached are not dependent upon the use of the material. As to the use of such material see Crawford and Graebner, The Role of Parliament in Law-Making: The Legal View, Legislative Studies, vol. 1 (1986), p. 24.

There are clear statements in the second reading speech of Sir Garfield Barwick, then Minister for External Affairs and Attorney-General, and of Senator Gorton, then Minister for the Navy and Minister assisting the Minister for External Affairs, that Pt III of the statute was intended to be of wider application than to members of a visiting force. It is necessary to mention only some passages from the second reading speech of Sir Garfield Barwick:

Part III. - Deserters and Absentees Without Leave, and Part IV. - Attachment of Personnel and Mutual Powers of Command, are not limited to visiting forces. Their provisions will automatically apply to Commonwealth countries, and they can, by regulation, be applied to other countries whether the countries have visiting forces in Australia or not. (House of Representatives, Hansard, 24 October 1963, p. 2260.)

Mr. Deputy Speaker, Part III. of the bill relates to deserters and absentees without leave from the forces of countries within the Commonwealth of Nations, and other countries to which the part may be applied by regulation. They need not be deserters or absentees from a visiting force. (House of Representatives, Hansard, 24 October 1963, p. 2263.)

In the light of the debate before this Court as to the significance to be attached to the transfer of the deserter and absentee provisions from the Defence (Visiting Forces) Act to the Defence Act, it is of interest to note an additional comment by the Minister for External Affairs and Attorney-General:

At some future date it may be that the provisions will find their place in general defence legislation where they may more properly belong, but for convenience now we copy the plan of the 1939 act and include them in the visiting forces legislation. (House of Representatives, Hansard, 24 October 1963, p. 2260.)

It is of further interest to note that in his second reading speech on the 1981 amendments Mr. Killen, then Minister for Defence, said:

The operation of these provisions is not restricted to visiting forces and their inclusion in the Defence (Visiting Forces) Act 1963 was done as a matter of expediency, as the House was informed at the time. (House of Representatives, Hansard, 17 September 1981, p. 1482.)

It was said in argument that Reg. v. Peterson; Ex parte Hartmann had stood unchallenged for nearly twenty years. Literally that is so though the reason is a matter of speculation. A challenge was irrelevant after the 1981 amendments and a comparable situation may not have arisen between 1968 and 1981. But in any event the proper construction of the Defence (Visiting Forces) Act requires, in my opinion, a different view of Pt III to that taken by Newton J.

The applicant's argument in regard to the exercise of judicial power went this way. If Pt III of the 1963 Act is independent of Pt II, a consequence of a decision to deliver an absentee without leave to a foreign force in Australia may be the indefinite detention of that absentee in Australia. Part IXA of the Defence Act does not materially alter this position as it empowers but does not compel the foreign force to deal with the absentee. The result is that Pt III of the Defence (Visiting Forces) Act was, and Pt IXA of the Defence Act is, invalid since both confer upon persons, who are not courts named in s. 71 of the Constitution, part of the judicial power of the Commonwealth. That power is identified as the power to inflict punishment by deprivation of personal liberty.

I do not think this argument can succeed. It is enough to look at the situation as it now exists. The power of the Minister under s. 116H of the Defence Act is to direct that the person held in custody be released or to issue a warrant for the delivery of the person "into the custody of a specified service authority of the country to which the person belongs at a place in Australia". Section 116H(4) empowers the service authority to remove the person from Australia but, as already mentioned, is expressed not to limit "any other powers that the authority may have with respect to the person".

I do not accept that the service authority may detain a person in Australia indefinitely. The person has rights against that authority under the law of the country to which the authority belongs. Furthermore, delivery of a person to a service authority under s. 116H is for the purposes of Pt IXA. If the service authority is not acting for the purposes of Pt IXA, it by no means follows that the person delivered is without remedy in Australian courts. But on any view of the matter, the Minister does not exercise a power of detention. His powers are to release the person from custody or to issue a warrant for the delivery of the person into the custody of a specified service authority. Those powers must be exercised within a reasonable time, failing which habeas corpus would lie. If there is a power of indefinite detention in Australia (which I reject), it resides in the service authority or the country to which the service authority belongs; but it does not reside in the Minister.

Important though these matters are, they do not arise directly for determination in the present case. Their significance, apart from implications for the judicial power question, is the light they throw upon the proper construction of Pt III of the Defence (Visiting Forces) Act. Difficulties of administration and possible injustices are relevant and in some circumstances may be compelling. But, for reasons already expressed, the proper construction of Pt III leads to the conclusion that s. 19 is not confined to visiting forces. Whether or not that is so is the issue before the Court. Other questions may have arisen, but they did not. For instance a contention that, in so far as authority for the detention of Mr. Beane may lie in ss. 116F, 116G and 116H of the Defence Act, those sections are ultra vires the legislative power of the Parliament was not pursued.

As to the exercise of judicial power, the position is reasonably analogous to the power of a magistrate or justice of the peace, before whom a person apprehended is brought, to order that person to be returned in custody or to admit him to bail. In Aston v. Irvine [35] this Court considered such a situation including the existence of a provision empowering a magistrate or justice of the peace to discharge the person apprehended, if it appeared that the charge was of a trivial nature or that the application for his return was not made in good faith in the interests of justice or that for any reason it would be unjust or oppressive to return him at all or until the expiration of a certain period. This, the Court said [36] , "does not necessarily amount to a grant of the judicial power of the Commonwealth and there is no reason to treat the provision as unconstitutional".

1. (1955) 92 C.L.R. 353. 2. (1955) 92 C.L.R., at p. 365.

The power conferred on the Minister is an administrative, not a judicial one: see Reg. v. Quinn; Ex parte Consolidated Foods Corporation [37] ; also Mason J. (as he then was) in Reg. v. Hegarty; Ex parte City of Salisbury [38] . Other than to release the person from custody, his power is exercised for the purpose of enabling an absentee without leave to be dealt with by the relevant service authority of the country to which he belongs.

1. (1977) 138 C.L.R. 1. 2. (1981) 147 C.L.R. 617, at pp. 626-628.

Inevitably a case relating to the liberty of the individual gives rise to concern. It is sixteen years since Mr. Beane's alleged desertion or absence without leave. He has been in Australia most of that time and he has acquired permanent resident status for the purposes of the Migration Act 1958 Cth. One may question the fairness or the utility of the course being pursued against him. But the same concern would arise and the same questioning take place had Mr. Beane been a member of a visiting force in 1970 who deserted or absented himself without leave while in this country. Yet in those circumstances the operation of Pt III of the Defence (Visiting Forces) Act would not be in doubt. For this Court the issue must be one of the scope of Pt III as determined by the proper construction of the relevant legislation.

There remains the issue of fact mentioned at the outset of these reasons. Unless that issue is resolved in favour of the applicant, the orders nisi should be discharged.

Douglas Beane, who has applied to have made absolute an order nisi for habeas corpus, absented himself from the United States Armed Forces in Da Nang in the Republic of South Vietnam (as it then was) on 28 February 1970. On or about 28 April 1970 he arrived in Australia, and has since continuously resided in this country.

On 22 November 1982 a request was made by the United States Designated Commanding Officer, Australia, for assistance in the apprehension of the applicant. Following this request the applicant was arrested on warrant, and subsequently detained by Australian Naval Forces. It is common ground between the parties that the arrest and detention are lawful only if the request was authorized by s. 19(1) of the Defence (Visiting Forces) Act 1963 Cth, the efficacy of requests under that sub-section having been reserved by s. 18(1) of the Defence Acts Amendment Act 1981 Cth, notwithstanding the repeal by that latter Act of Pt III of the Defence (Visiting Forces) Act 1963, which included s. 19.

Where the designated authority of a country in relation to which this section applies, by writing under his hand, requests an authorized officer for assistance in the apprehension of a member of the forces of that country who is a deserter or an absentee without leave from those forces, the authorized officer may, in his discretion, issue a warrant in accordance with the prescribed form authorizing a member or special member of the Australian Federal Police or a member of the Police Force of a State or of a Territory or any member of the Defence Force to arrest that deserter or absentee.

Although the words of s. 19(1) are sufficiently wide to cover a deserter or an absentee without leave from the forces of a country to which the section applies, notwithstanding that he deserted or absented himself outside Australia, a question necessarily arises as to whether the provision should be so construed in the absence of statutory authority for the representatives of that foreign country to exercise jurisdiction in Australia over the deserter or absentee or to detain him in custody in Australia, he not being a member of a "visiting force" as defined in s. 5 of the Defence (Visiting Forces) Act 1963.

By s. 8 of the Defence (Visiting Forces) Act 1963 jurisdiction is conferred on the service tribunals and service authorities of a country to which that section applies over:

(a) members of any visiting force of that country; and

(b) all other persons who, being neither Australian citizens nor persons ordinarily resident in Australia, are for the time being subject to the service law of that country otherwise than as members of that country's forces.

Authority is given in s. 8(6) for the detention in custody pursuant to sentence or pending or during the trial of any person over whom jurisdiction is conferred by the section.

A deserter or absentee without leave from the forces of a foreign country is not a person " subject to the service law of that country otherwise than as [a member] of that country's forces". A deserter or absentee without leave may be a member of a "visiting force" of that country, which is defined in s. 5(1) of the Defence (Visiting Forces) Act 1963 to mean "any body, contingent or detachment of the forces of a country that is for the time being present in Australia by arrangement with the Minister". As the Act confers jurisdiction upon the service authorities and tribunals of a foreign country over, and authority for the detention in Australia of, a deserter or an absentee without leave from a visiting force, but confers no such jurisdiction or authority in respect of a person who otherwise deserted or absented himself without leave from that country's forces, s. 19(1) would normally be construed in the context of the Act as a whole as being limited in its application to persons who deserted or absented themselves without leave from a visiting force present in Australia. Such was the construction adopted by Newton J. in the Supreme Court of Victoria inReg. v. Peterson; Ex parte Hartmann [39] . Any wider construction would result in futility in that detention in Australia of the deserter or absentee by the representatives of the foreign country would be unlawful. It is a well-established rule of construction that absurdity and inconvenience are to be avoided. As was stated by Brett M.R. in Reg. v. The Overseers of the Parish of Tonbridge [40] :

if the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning. 1. [1969] V.R. 417; (1968) 14 F.L.R. 1. 2. (1884) 13 Q.B.D. 339, at p. 342.

It was argued on behalf of the respondents that the want of statutory authority for the representative of a foreign country to detain in Australia a deserter or absentee without leave, not being a deserter or absentee from a visiting force present in Australia, is not conclusive. Such authority, it was submitted, is supplied by the common law which acknowledges the jurisdiction of the service authorities of foreign military forces present in the country by consent over the members of those forces and recognizes a corresponding immunity from the jurisdiction of local courts. The principle contended for was explained by Dixon J. (as he then was) in Chow Hung Ching v. The King [41] in these terms:

It is not a claim that the Crown may exclude the jurisdiction of the courts over foreigners if it thinks fit. It is merely that by admitting a very special description of men, viz. an organized body of the armed forces of a foreign nation and by imposing no condition subjecting the force to local law either altogether or in any particular respect, the Crown impliedly undertakes that the force shall be governed by its own discipline and military tribunals to the exclusion of the local jurisdiction and that the common law gives effect to the implication. 1. (1948) 77 C.L.R. 449, at p. 482.

It may be doubted whether the statement is a correct exposition of the law of this country, particularly in relation to the original jurisdiction conferred on this Court by s. 75 of the Constitution and the non-federal jurisdiction of State courts. The principle, if it exists, is clearly confined to jurisdiction over and corresponding immunity from local jurisdiction in respect of members of the force, and does not extend, as is here the situation to persons not members of the visiting force. Doubtless in recognition of this limitation, it was contended on behalf of the respondents that the common law recognition of the special status accorded by public international law to visiting warships and military aircraft would enable a deserter or an absentee to be delivered to such warship or aircraft with the consequence that subsequent detention and removal were beyond challenge in Australian courts.

The two bases upon which the common law accords special status to visiting warships, with which it was argued military aircraft should be equated, were explained by Lord Atkin in Compania Naviera Vascongado v. S.S. "Cristina" [42] in these terms:

The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.

The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control.

However the real issue is not whether such ship or aircraft is beyond the jurisdiction of Australian courts, but whether detention by the representatives of a foreign country aboard such a ship or aircraft is authorized by Australian law.

In the absence of statutory provision to the contrary, a person in Australia who has not breached Australian law is entitled to his freedom: see Brown v. Lizars [43] and Reg. v. Governor of Brixton Prison; Ex parte Soblen [44] .

1. (1905) 2 C.L.R. 837, at pp. 851-852, 861, 867-868. 2. [1963] 2 Q.B. 243, at pp. 299-302, 306-307.

The want of statutory authority for the detention in custody within Australia by the representative of a foreign country of a person who deserted or absented himself without leave from that country's forces, otherwise than as a member of a visiting force in Australia, requires that s. 19(1) be construed as having application only to persons who deserted or absented themselves without leave from a visiting force. As this construction is required by the Act itself, there is no necessity for resort to extrinsic material as provided by s. 15AB of the Acts Interpretation Act 1901 Cth.

As the applicant did not desert or absent himself without leave from a visiting force in Australia he is entitled to have the order nisi for habeas corpus made absolute. In view of the provision of O. 55, r. 46 of the High Court Rules, that entitlement is recognized by direction that the applicant should be discharged from custody. It should be so directed. Also, the order nisi for prohibition to the second respondent should be made absolute.

It becomes unnecessary to consider the further argument advanced on behalf of the applicant that s. 116H of the Defence Act 1903 Cth confers part of the judicial power of the Commonwealth otherwise than on a court.