Re Bolton; Ex parte Beane [1987] HCA 12

[1987] HCA 12

High Court of Australia|1987-07-01|Before: Gaudron JJ, Dawson JJ, Gaudron J, Toohey J, Newton J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1987-07-01

Before

Gaudron JJ, Dawson JJ, Gaudron J, Toohey J, Newton J

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

The applicant for habeas corpus and prohibition, Mr. Beane, is a citizen of the United States. He has been a resident of Australia since 1970 and has acquired permanent resident status for the purposes of the Migration Act 1958 Cth. It is not suggested that his presence here has at any time been unlawful or that he has, while here, engaged in unlawful activity. All that is alleged against him is that, before he first came to settle in this country, he had absented himself without leave from the armed forces of the United States while serving in Vietnam. In 1986, after Mr. Beane had been living here as a civilian for some sixteen years, he was arrested by officers of the New South Wales Police Force acting in reliance upon a warrant purportedly issued by a Commonwealth naval officer under the Defence Act 1903 Cth. The arresting police transferred Mr. Beane into the custody of officers of the Royal Australian Navy Police who took him to H.M.A.S. "Penguin", a naval establishment under the command of one of the respondents to the present action. There he was held in custody pending a threatened delivery of him into the custody of service authorities of the United States.

[2]

It is common ground between the parties that the detention of Mr. Beane can be justified only if the request made by the United States authorities for his apprehension was validly made. That request was purportedly made pursuant to the now repealed Pt III of the Defence (Visiting Forces) Act (1963) Cth ("the Act"). Its validity depends upon whether the provisions of that Part of the Act operated to authorize the apprehension and handing over of a person who had in some place other than Australia absented himself without leave from the forces of another country to which sub-s. (1) of s. 19 of the Act applied. That sub-section provided for the apprehension of a member of the forces of such another country "who is a deserter or an absentee without leave from" those forces. The application of the sub-section to other countries was effectively a matter within the control of the Commonwealth Executive: the Act, s. 6. If the sub-section is to be construed in the manner for which the respondents contend, its effect was to place in the hands of the Commonwealth Executive a largely discretionary power to hand over to the forces of any foreign country to which the provisions of the sub-section had been made applicable (such as Uganda under the dictatorship of Idi Amin) any person, including an Australian citizen, who had at any time and in any place for whatever reason of conscience or convenience deserted or absented himself without leave from those forces.

[3]

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.

[4]

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.

[7]

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] .

[9]

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.