Ruhani v Director of Police

Ruhani v Director of Police - [2005] HCA 42 - HCA 2004 case summary — Zoe

[13]

GLEESON CJ. Section 5 of the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Act") confers, or purports to confer, upon this Court jurisdiction to hear and determine appeals from the Supreme Court of Nauru in accordance with the terms of an Agreement between the Commonwealth of Australia and the Republic of Nauru. The historical background to the Agreement, and to the legislation, is explained in the reasons of other members of the Court. The appellant was unsuccessful in proceedings for habeas corpus brought by him against the respondent in the Supreme Court of Nauru. He appealed to this Court. An objection to the competency of the appeal was filed by the respondent. It was heard as a preliminary issue. The ground of objection was that s 5 of the Nauru Act is invalid. On 9 December 2004, the Court disallowed the objection to competency. The following are my reasons for joining in that order.
The essential ground of invalidity asserted by the respondent was that s 5 of the Nauru Act purports to confer on this Court a form of judicial power that is extraneous to Ch III of the Constitution. The jurisdiction purportedly conferred is not jurisdiction to hear and determine an appeal of a kind referred to in s 73 of the Constitution. That is agreed. Nor, so it is submitted, is it original jurisdiction of a kind identified in s 75 or s 76. That is disputed. In particular, the appellant contends that what is involved is a conferral of original jurisdiction in a matter arising under a law made by the Parliament, within the meaning of s 76(ii).
As an alternative to the s 76(ii) argument, the appellant also contended that, even if the jurisdiction conferred by the Nauru Act is not original jurisdiction of the kind referred to in s 75 or s 76, for the reason that it is appellate and not original in character, s 73 is not an exhaustive statement of the Parliament's power to confer appellate jurisdiction on this Court, and the Nauru Act validly confers appellate jurisdiction in the exercise of the legislative power given by s 51(xxix) (external affairs) and s 51(xxx) (relations with Pacific islands). This alternative argument, if it arose, would face the formidable obstacle of a long line of authority in this Court to the effect that Ch III of the Constitution (which, for present purposes, means ss 73, 75 and 76) "is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested."[1] The possibility that the powers conferred upon the Parliament by s 51 to make laws with respect to specified subjects might have included power to create courts with appropriate jurisdiction, beyond the kinds of jurisdiction referred to in Ch III, was rejected by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia[2]. They said:

[17]

It is unnecessary to examine in greater detail the appellant's alternative argument. In my view, the appellant is correct in submitting that the power necessary to sustain the legislation is found in s 76(ii).
Chapter III does not use the expression "appellate jurisdiction". That, however, is an expression that is commonly and conveniently used to describe the jurisdiction, conferred by s 73, to hear and determine appeals from certain specified courts within the Australian judicature. The present proceedings do not involve an appeal from any of those courts. The question is not whether, in some other context, or apart from any context, it would be more appropriate to describe the proceedings as appellate than to describe them as original. The question is whether, in the context of Ch III of the Constitution, it is appropriate to describe the jurisdiction conferred on this Court by the Nauru Act as original jurisdiction. The immediate context is s 76(ii), which refers to laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. The wider context is Ch III, and the constitutional scheme which has been referred to above in connection with the appellant's alternative argument.
In answering the question, the first step is to identify the matter arising under a law made by the Parliament. The relevant law made by the Parliament is the Nauru Act. That is a law which, in its effect upon the rights and obligations of the parties, operates by reference to a law other than Commonwealth law. The content of the law to be applied by a court in the exercise of federal jurisdiction may be derived from some other law system. This happens, for example, when State law is "picked up" as "surrogate federal law" by reason of the operation of s 79 of the Judiciary Act 1903 (Cth)[7]. An otherwise valid law of the Parliament may pick up the law of Nauru as the law to be applied in determining rights and liabilities in issue in an exercise of federal jurisdiction. Furthermore, such a law may, in the one provision, both create a right and provide a remedy[8].
The circumstance that the proceedings in which this Court is empowered to review the decision of the Supreme Court of Nauru, and, if appropriate, set aside that decision and make consequential orders, are described as an appeal, (a description which, from the point of view of the parties, is perfectly apt), does not determine the nature of the jurisdiction from the point of view of the Australian judicature for the purposes of Ch III of the Constitution. It is not uncommon for proceedings in a federal court, which involve a review of the decision of another decision maker, which are described in legislation as an appeal, and which from the point of view of the parties have the characteristics of an appeal, to involve, from the point of view of the Australian judicature, an exercise of original jurisdiction[9].
The power conferred upon this Court by the Nauru Act is a power to affirm, reverse or modify the judgment, decree, order or sentence of the Supreme Court of Nauru and to make such orders as should have been made or to remit the case for re-determination. That conferral of power by Australian legislation is made pursuant to the Agreement between the Commonwealth of Australia and the Republic of Nauru. In the present case, the litigation is against an officer of the Republic of Nauru, and questions of enforcement of any orders made by this Court involve relations between the two governments. There is no warrant for any assumption that such orders would be ineffective. There is a matter, that is to say, a controversy between the parties to the proceedings as to their respective rights and liabilities. It arises under a law made by the Parliament in the manner already described. Until the jurisdiction created by s 5 was invoked, the controversy did not involve any Australian law, and it had nothing to do with any part of the Australian judicature. Insofar as the controversy can now be said to arise under a law made by the Parliament, it does so only because the jurisdiction of an Australian court is invoked for the first time. So far as the Australian judicature is concerned, this is a new matter. In the context of Ch III of the Constitution, the jurisdiction invoked is original jurisdiction.
For those reasons I joined in the order disallowing the objection to competency. For the reasons given by Gummow and Hayne JJ, I agree in the orders they propose respecting the motion for joinder and the costs of that motion and the objection to competency.
McHUGH J. The ultimate issue in this proceeding was whether the Nauru (High Court Appeals) Act 1976 (Cth) was a valid enactment of the Parliament of the Commonwealth giving this Court jurisdiction to hear and determine an appeal by the appellant against an order of the Supreme Court of Nauru.
The issue arose because the respondent, the Director of Police for Nauru, objected to the competency of an appeal lodged in this Court by the appellant, Mr Mohammad Arif Ruhani. On 9 December 2004, this Court disallowed the Director's Notice of Objection to Competency. I joined in the order disallowing the objection to competency and now give my reasons for doing so.
In my opinion, the Nauru (High Court Appeals) Act 1976 ("the Nauru Appeals Act") is a valid enactment of the federal Parliament and confers original jurisdiction on this Court to determine the "appeal". It is a law validly made under s 76(ii) of the Constitution which empowers the Parliament to "make laws conferring original jurisdiction on the High Court in any matter ... arising under any laws made by the Parliament". Accordingly, the appeal by Mr Ruhani was competent.

[31]

The Nauru Island Agreement Act 1919 (Cth) was enacted to give effect to the Agreement. Exercising a power that Art 1 of the 1919 Agreement vested in the Australian Government, the Government appointed the first Administrator and all subsequent Administrators. Exercising the power conferred by Art 1 of the 1919 Agreement, the Administrator made the Judiciary Ordinance 1922. That Ordinance established a Central Court and a District Court.
In 1947, Nauru was placed under the United Nations Trusteeship System, which succeeded the League of Nations Mandate System. Between 1947 and 1968, the Republic of Nauru was a United Nations Trust Territory. The Trusteeship Agreement for Nauru replaced the Nauru Mandate. Under the Trusteeship Agreement, the Governments of Australia, New Zealand and the United Kingdom undertook to jointly administer the Territory of Nauru. The administration of Nauru continued under an Administrator appointed by Australia.
The Judiciary Ordinance 1957 ("the 1957 Ordinance") repealed all previous Ordinances and established a Court of Appeal as a superior court of record, a Central Court as a superior court of record, and a District Court. Under the 1957 Ordinance, appeals lay from the District Court to the Central Court, and from the Central Court to the Court of Appeal. The Court of Appeal consisted of a single judge who was or had been a Justice of this Court or of the Supreme Court of an Australian State or Territory.
In 1965 an agreement was reached between the Governments of the United Kingdom, Australia and New Zealand in respect of the administration of the Trust Territory ("the 1965 Agreement")[16]. That Agreement provided for the establishment of legislative, executive and judicial branches of government. Under Art 5(1), a Central Court and a Court of Appeal were established "to replace the existing Central Court and Court of Appeal." Under Art 5(4), an appeal lay from a judgment of the Court of Appeal to this Court by leave of this Court.
The Nauru Act 1965 (Cth), which commenced on 18 December 1965, gave effect to the 1965 Agreement, as required under Art 6. Sections 47 and 49 of the Nauru Act 1965 established the Court of Appeal of the Island of Nauru and the Central Court of the Island of Nauru, respectively. Section 53 provided for the continued existence of the District Court of the Island of Nauru. Section 54 provided that appeals from the Court of Appeal of the Island of Nauru were to lie to this Court, upon leave of the High Court. In the Second Reading speech for the Nauru Bill 1965 (Cth) the Minister for Territories advised the House of Representatives that the provision for an appeal to this Court from decisions of the Court of Appeal was a new provision[17].
The United Nations General Assembly Resolution of 19 December 1967 resolved that the Trusteeship was to be terminated upon the accession of Nauru to independence on 31 January 1968[18]. The Nauru Independence Act 1967 (Cth) ("the 1967 Act") repealed the Nauru Act 1965 and all Acts that extended to Nauru as a Territory of the Commonwealth as from 31 January 1968[19]. The 1967 Act also provided that as from 31 January 1968, Australia was not to exercise any powers of legislation, administration or jurisdiction in and over Nauru[20].
The arrangements for appeals to this Court from the Court of Appeal ceased upon the commencement of the 1967 Act. Thus, only between 18 December 1965 and 30 January 1968 did appeals to this Court lie from the Court of Appeal.
However, the Constitution of Nauru permits appeals from the Supreme Court of Nauru to a court of another country. Article 57(2) of the Constitution provides: "Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country."
On 6 September 1976, Australia and Nauru concluded the 1976 Agreement, which provided for appeals to the High Court of Australia from the Supreme Court of Nauru in certain circumstances. As the recitals to the 1976 Agreement state, the Agreement sought to continue arrangements that had been in place between 18 December 1965 and 30 January 1968, prior to Nauru's independence:

[40]

The outcome of this application turns on the characterisation of the jurisdiction that the Nauru Appeals Act purports to confer on this Court. The description of the proceeding as an "appeal" is not decisive. A classic description of an appeal is "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below"[32]. Appellate jurisdiction, therefore, implies that the subject matter has already been instituted in and acted upon by some other court whose judgment or proceedings are to be revised[33]. However, the description of an appeal that I have quoted appears to assume that the court below lies within the same curial system as the appellate court. And the implication to which I have referred is also inconclusive, because it does not address the situation where the "other court" lies outside the Australian curial system.
Characterisation of the jurisdiction conferred on the Court by the Nauru Appeals Act is critical because it conditions the source of legislative power that supports the conferral of such jurisdiction. The problem is unique: on no other occasion has jurisdiction been conferred on this Court to hear "appeals" from a superior court of record of an independent sovereign nation. In this case, the problem of characterisation is a difficult one because the Nauru Appeals Act uses terminology that is consistent with the exercise of appellate jurisdiction, yet deals with proceedings that, when they come before this Court, represent the first engagement of the judicial power of the Commonwealth.
The literal meaning of many provisions of the Nauru Appeals Act suggests that the proceeding in this Court is an appeal in the true sense. The Nauru Appeals Act in s 5 speaks of "Appeals to [the] High Court" and provides that "[a]ppeals lie to the High Court of Australia from the Supreme Court of Nauru" in certain cases and that this Court "has jurisdiction to hear and determine appeals" in those cases[34]. Section 7 of the Act prescribes the quorum for the exercise of the "jurisdiction of the High Court to hear and determine an appeal or an application for leave to appeal under section 5". Section 8 provides for the form of judgment to be given by this Court "in the exercise of its appellate jurisdiction under section 5". The Act also provides that in the case of an appeal, where there is a difference of opinion and there is no majority of the one opinion, "the decision appealed from shall be affirmed."[35]
The literal meaning of various provisions of the Nauru Appeals Act suggests therefore that the jurisdiction exercised by this Court is appellate. However, the terminology used is not conclusive. The substance of the enactment determines whether this Court is being invested with original or appellate jurisdiction. In the old Taxation Board of Review "appeals", for example, this Court held that the "appeal" involved the exercise of the Court's original jurisdiction despite the legislation referring to an "appeal"[36]. So it is necessary to examine the substantive provisions of the Nauru Appeals Act to determine whether the jurisdiction is appellate or original.
The powers of the Court, when exercising jurisdiction under s 5(2) of the Nauru Appeals Act, are consistent with the exercise of appellate jurisdiction. Examples are the powers of the Court under s 8 of the Nauru Appeals Act to "affirm, reverse or modify the judgment, decree, order or sentence appealed from and [to] give such judgment, make such order or decree or impose such sentence as ought to have been given, made or imposed in the first instance or remit the case for re-determination by the court of first instance, by way of a new trial or rehearing, in accordance with the directions of the High Court." These powers are similar to the power conferred on this Court in the exercise of its appellate jurisdiction by s 37 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), which provides for this Court to "affirm reverse or modify the judgment appealed from, and [to] give such judgment as ought to have been given in the first instance". Moreover, the power conferred by s 37 is different from that conferred on this Court in the exercise of its original jurisdiction by s 31 of the Judiciary Act. Section 31 provides for this Court to "make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it".
However, the difference between the powers conferred by ss 31 and 37 of the Judiciary Act is not a conclusive indicator that the Court exercises appellate jurisdiction when it uses the power of disposition conferred by the Nauru Appeals Act. The power conferred by s 8 is analogous to the powers of a court exercising original jurisdiction when it undertakes first-instance judicial review of an administrative decision. One such power is the power of remittal for re‑determination in accordance with the directions of this Court. Further, this Court has held that s 196(1) of the 1951 consolidation of the Income Tax Assessment Act 1936 (Cth) (which was then entitled the Income Tax and Social Services Contribution Assessment Act) invoked the original jurisdiction of this Court, not its appellate jurisdiction[37]. Section 199(1) referred, in the context of the s 196 "appeal" from the Board of Review, to the power of the Court "by such order [to] confirm, reduce, increase or vary the assessment." This suggests that the powers conferred by s 8 are consistent with the exercise by this Court of original jurisdiction. They are not a conclusive indication that the Court is exercising appellate jurisdiction.
The resolution of an "appeal" where the Justices sitting as a Full Court are divided in opinion as to the decision - "the decision appealed from shall be affirmed"[38] - also points to the exercise of appellate rather than original jurisdiction. It contemplates that judgment may be given notwithstanding the absence of a majority of opinion. Nevertheless, this factor is also not conclusive. In some instances, despite the absence of a majority of opinion, this Court may give judgment in the exercise of its original jurisdiction. Section 23(2)(b) of the Judiciary Act provides that, when this Court sits as the Full Court in any case other than an appeal from a court listed in s 23(2)(a) (which arguably contemplates the exercise of original jurisdiction), if the Justices are divided in opinion as to the decision to be given on any question, and the Court is equally divided in opinion, "the opinion of the Chief Justice, or if he or she is absent the opinion of the Senior Justice present", prevails.
Another matter consistent with the Nauru Appeals Act conferring appellate jurisdiction is that s 8 does not provide for the enforcement and execution of judgments, unlike ss 31 and 37 of the Judiciary Act. Counsel for the Director submitted that, if this Court is exercising original jurisdiction, then an essential characteristic of a "matter" is that there be a remedy enforceable in this Court. Counsel relied on statements by Gleeson CJ and myself in Abebe v The Commonwealth[39]. There we said that the existence of a "matter" "cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability." We also said that "there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable." However, courts may exercise judicial power and original jurisdiction even though no question of "enforcement", as such, arises. Making declarations, giving advice to trustees, receivers and liquidators and granting probate of wills or letters of administration are examples[40]. In addition, s 31 of the Judiciary Act may apply to an order of this Court exercising original jurisdiction under the Nauru Appeals Act. It would apply, for example, to a costs order, and such an order could be enforced in respect of any assets of a party within the jurisdiction. Section 31 would also apply to any other order, which Nauruan law would then pick up as a "datum" and apply in Nauru. The absence of any provision for the enforcement or execution of a judgment given under s 8 is inconclusive as to whether the jurisdiction is original or appellate. At all events, it does not preclude a conclusion that this Court exercises original jurisdiction when it hears an "appeal" under s 5.
Counsel for the Director submitted that, in the absence of a relevant Nauruan law, an order directing the release of Mr Ruhani would not be enforceable and there would be nothing to make such an order enforceable in this Court. Again, however, that is not conclusive. Section 31 has application in such a situation. The courts of Nauru could pick up any judgment of this Court as a "datum" or a "fact" and apply it in Nauru.
Another factor pointing to the jurisdiction under the Nauru Appeals Act being appellate is that the Supreme Court of Nauru is a superior court of record of unlimited jurisdiction. In the exercise of its original jurisdiction, this Court has power to set aside a judgment of a superior court of record, such as the Federal Court. However, it can do so only where, as in the case of the Federal Court[41], the court is a court of limited jurisdiction. The Supreme Court of Nauru, by contrast, is a superior court of record[42] invested with the widest jurisdiction[43], subject to some presently irrelevant exceptions. It is a central thesis of the common law that a superior court of record is assumed to have acted within jurisdiction (because it has jurisdiction to determine its own jurisdiction). As a result, its orders are binding until set aside on appeal. This factor suggests that the orders of the Supreme Court of Nauru are binding unless set aside on appeal and that any review of the orders of the Supreme Court of Nauru can only be an exercise of appellate jurisdiction. The authorities on which the Director relies in support of this contention, however, are concerned with decisions of superior courts of record within the same judicial hierarchy[44]. The review of decisions of a superior court of record of an independent sovereign nation raises quite different issues. As a result, the reasoning of the Court in those cases is not determinative of the present case and does not compel a conclusion that this Court exercises appellate jurisdiction under the Nauru Appeals Act.
The foregoing discussion indicates that the terminology and the substance of the Nauru Appeals Act although consistent with appellate jurisdiction are not necessarily determinative of the class of jurisdiction exercised by the Court under the Act. What, if any, provisions of that Act or other matter indicate that the jurisdiction conferred by the Nauru Appeals Act is original jurisdiction?
Counsel for the Director accepted that the term "original jurisdiction" in ss 75 and 76 of the Constitution may mean "the right to enter the jurisdiction of a court for the first time". And precedents in this Court support the proposition that the Court may be exercising original jurisdiction notwithstanding that the conferral of jurisdiction refers to an "appeal". Those precedents - Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd[45], Watson v Federal Commissioner of Taxation[46] and Pasini v United Mexican States[47] - were concerned, however, with the review of decisions, not from courts or magistrates, but from persons, authorities or tribunals exercising administrative powers. In those cases, there had been no exercise of judicial power of any kind until the so-called "appeal" was brought before a court exercising the judicial power of the Commonwealth. They invoked the original jurisdiction of the relevant court because it was the first time that the matter was brought into a court exercising judicial power. They are different from the present case in that in this case the matter has already been brought before a superior court exercising judicial power, albeit not the judicial power of the Commonwealth.
A federal court may also exercise original jurisdiction even though the enactment conferring jurisdiction uses the nomenclature of "appeal" and the decision in respect of which review is sought involved the exercise of judicial power other than the judicial power of the Commonwealth. In Hembury v Chief of General Staff[48], for example, this Court held that the Defence Force Discipline Appeals Act 1955 (Cth) conferred original jurisdiction on the Federal Court. Original jurisdiction was conferred despite s 52(3) of that Act conferring on the Federal Court "jurisdiction to hear and determine matters arising under this section with respect to which appeals are instituted in that Court". That Act also provided that such jurisdiction was to be exercised by that Court constituted as a Full Court. The decision in Hembury turned on the review of a decision of the Defence Force Discipline Appeal Tribunal, which is a body that exercises judicial power but not the judicial power of the Commonwealth. Thus, the exercise of original jurisdiction under s 76 of the Constitution is not confined to situations involving the first exercise of judicial power.
For constitutional purposes, engagement with the judicial power of the Commonwealth (or the Australian curial system, if the Territories are included) for the first time is a powerful indicator that original jurisdiction under s 75 or s 76 of the Constitution is being exercised. Indeed, if a matter engages the judicial power of the Commonwealth for the first time, then the exercise by a court of federal jurisdiction in relation to that matter must be original jurisdiction unless the jurisdiction is exercised in accordance with s 73 of the Constitution. It is true, of course, that, when this Court exercises jurisdiction under s 73 of the Constitution in respect of State appeals, it is exercising appellate jurisdiction although it is the first time that the judicial power of the Commonwealth is engaged. But that is because such appeals fall within s 73. When the case is not within s 73 the jurisdiction of a federal court exercising the judicial power of the Commonwealth for the first time must be original jurisdiction.
As no "matter" arises under the Nauru Appeals Act until proceedings are commenced in this Court, there is no exercise of the judicial power of the Commonwealth until this Court exercises its jurisdiction in respect of such proceedings. And the jurisdiction to hear an "appeal" under the Nauru Appeals Act is not jurisdiction falling within s 73 of the Constitution. Thus, despite the use of the term "appeal" and the investment of powers consistent with appellate jurisdiction, the decisive factor in determining the nature of the jurisdiction is that only when an "appeal" under the Nauru Appeals Act is lodged is the judicial power of the Commonwealth engaged. And because the proceeding is not within s 73 of the Constitution it follows that the jurisdiction conferred is original jurisdiction. The Director's argument that the Nauru Appeals Act purports to confer appellate jurisdiction, contrary to s 73 of the Constitution, must therefore be rejected.

[43]

Both ss 76(ii) and 75(i) require that there be a "matter" for the purposes of conferring original jurisdiction on this Court. This Court cannot exercise original jurisdiction if there is no "matter" in the constitutional sense. Whether or not a controversy is a "matter" is not always easy to decide. A proceeding is not itself a "matter" for constitutional purposes. Thus, the mere creation of a proceeding by legislation does not mean that the controversy to be resolved by the proceeding is a "matter … arising under" the relevant Act[49]. (If the mere creation of a proceeding could give rise to a "matter … arising under" the relevant Act, there would be no work for s 76(ii) to do. The law conferring the jurisdiction would be the law under which the "matter" would arise.)
In Abebe[50], Gleeson CJ and I held that the term "matter" meant "subject matter for determination in a legal proceeding", that is, the "determination of rights, duties, liabilities and obligations in a legal proceeding", and not simply "legal proceeding"[51]. Gummow and Hayne JJ identified three elements that may be used to ascertain whether there is a "matter"[52]: "the subject matter for determination in a proceeding", the "right, duty or liability [that] is to be established" and "the controversy between the parties".
In determining whether this Court has original jurisdiction under s 76(ii), it is therefore necessary to ascertain whether, firstly, the Nauru Appeals Act confers jurisdiction on this Court, and secondly, a "matter" arises under the Nauru Appeals Act. Similarly, in determining whether this Court has original jurisdiction under s 75(i), it is necessary to ascertain whether a "matter" arises under the 1976 Agreement.
In this case, the determination of rights, liabilities and privileges of persons by reference to the law of Nauru is the subject matter of proceedings authorised by the Nauru Appeals Act. One view is that the controversy between the parties is the controversy as to whether the judgment of the Supreme Court of Nauru is right or wrong. Another view - and I think the better view - is that the controversy is whether the Nauruan Immigration Act and regulations made under it properly supported the special purpose visa and the conditions attached to the visa, according to the law of Nauru. On this view, the controversy is whether the grant of the visa and the conditions attaching to the visa were lawful under Nauruan law. Such a question involves the proper construction of the Nauruan Immigration Act and regulations and a determination as to whether the appellant is lawfully detained under that regime. The right, duty or liability to be established is the right of Mr Ruhani not to be unlawfully detained. An alternative formulation is that the Director of Police has a duty not to detain Mr Ruhani unlawfully as a matter of Nauruan law. This right of Mr Ruhani includes the right to have the correctness of the judgment of the Supreme Court of Nauru reviewed by this Court by reference to Nauruan law. The right also includes the right to a determination of the rights, liabilities and privileges of Nauruans by reference to Nauruan law.

[47]

Counsel for the Director correctly conceded that the original jurisdiction of this Court under s 76 of the Constitution can be supplemented by federal legislation. However, he submitted that there was no "matter … arising under" the Nauru Appeals Act upon which a conferral of jurisdiction could validly operate. He contended that the mere creation of a proceeding does not mean that the controversy to be resolved by the proceeding is a "matter … arising under" the relevant Act[54]. In this case the proceeding is a proceeding to determine whether the Supreme Court of Nauru erred. Counsel argued that the Nauru Appeals Act assumes that the relevant rights and duties to be adjudicated in this Court depend for their existence on the law of Nauru. Applying the tests articulated by the joint judgments of Gleeson CJ and myself and Gummow and Hayne JJ in Abebe, counsel submitted that the rights of the parties arise under Nauruan law, not Australian law. As the controversy arises under Nauruan law and only under Nauruan law, the "matter" is the controversy arising under Nauruan law. Accordingly, it could not be a "matter … arising under" the Nauru Appeals Act. That Act merely creates the remedy.
It is not disputed that the rights and duties of the parties in this case are determined by reference to the terms of Nauruan law. Nor is it disputed that the terms of Nauruan law provide the basis for the subject matter of the proceeding between the parties under the Nauru Appeals Act. However, it is erroneous to suggest that the subject matter of the proceeding between the parties depends only on, and is wholly defined by, the law of Nauru.
Sections 5(1), 5(2) and 8 of the Nauru Appeals Act provide a right to institute proceedings in this Court, confer jurisdiction on this Court to hear and determine such proceedings and create a "matter" or controversy between the parties under federal law to be determined by reference to the law of Nauru. Section 5(1) of the Nauru Appeals Act by implication confers a right to institute proceedings in this Court in certain instances, as it provides that "[a]ppeals lie to the High Court of Australia from the Supreme Court of Nauru". Section 5(2) confers jurisdiction on this Court to "hear and determine" proceedings brought under s 5(1). Section 8 confers remedies, the section empowering the Court to "affirm, reverse or modify" the judgment or order of the Supreme Court of Nauru, to "give such judgment [or] make such order … as ought to have been given [or] made … in the first instance" and to remit the case for re‑determination in accordance with the directions of this Court. Although s 8 does not expressly say so, by necessary implication it directs this Court to apply the law of Nauru to determine the proceedings brought under s 5(1). To this end, the section operates to give Nauruan law the force of federal law for the purpose of determining the controversy. A "matter" therefore arises under a federal law for the purpose of s 76(ii) because the right or duty in question in this Court - ie, the right of Mr Ruhani not to be detained unlawfully and the duty of the Director of Police to detain persons lawfully - owes its existence to the Nauru Appeals Act.
The subject matter of proceedings in respect of which this Court is invested with jurisdiction is defined by the Nauru Appeals Act. That Act identifies Nauruan law as the factum by reference to which the Act operates and Nauruan law as the law to be applied in the resolution of proceedings brought under the Act. This construction of the Act is supported by the words in s 8 that the Court may "give such judgment [or] make such order … as ought to have been given [or] made … in the first instance" (emphasis added). They imply that the Nauru Appeals Act - which is federal law - requires this Court to apply the terms of Nauruan law. The Act does not provide for this Court to give such judgment or make such order "as it deems fit", for example. Instead, the direction to give such judgment or make such order as ought to have been given or made in the first instance requires this Court to apply the law of that forum to determine the proceeding, which, in this case, is Nauruan law. The provision thus impliedly directs the Court to apply the law of Nauru in determining the controversy.
Consequently, the Nauru Appeals Act has the effect of applying Nauruan law as federal law. By necessary implication, for the purpose of the "appeal", the Act gives effect to the law of Nauru as federal law. Nauruan law is applied to resolve the subject matter of the proceeding brought into this Court under the Nauru Appeals Act and, for the purposes of resolving the proceeding, Nauruan law is given the force of federal law. Nauruan law thus forms the factum that gives rise to federal rights. They include the right to have the correctness of the judgment of the Supreme Court of Nauru reviewed by this Court by reference to Nauruan law and the right to a determination of the rights, liabilities and privileges of Nauruans by reference to Nauruan law. The Court did this in Amoe v Director of Public Prosecutions (Nauru)[55] and Director of Public Prosecutions (Nauru) v Fowler[56] when it applied Nauruan criminal law to resolve appeals brought under the Nauru Appeals Act to this Court. There was no objection to jurisdiction in those cases. By giving Nauruan law the force of federal law for the purposes of a proceeding under the Nauru Appeals Act, that Act gives rise to the controversy and, hence, a "matter" for the purpose of s 76(ii).
Several decisions of this Court - Hooper v Hooper[57], LNC Industries Ltd v BMW (Australia) Ltd[58], The Commonwealth v Evans Deakin Industries Ltd[59] and Western Australia v The Commonwealth (Native Title Act Case)[60] - support this construction of the Nauru Appeals Act.
In Hooper, this Court rejected a challenge to the validity of the Matrimonial Causes Act 1945 (Cth) ("the Matrimonial Causes Act"). That Act purported to invest State and Territory courts with certain jurisdiction in relation to matrimonial causes and directed those courts to exercise the invested jurisdiction in accordance with the law of the State or Territory in which the person instituting the proceedings was domiciled. Part III of the Matrimonial Causes Act related to the "[i]nstitution of matrimonial causes by certain persons domiciled in Australia". Section 10(1) provided that a person resident but not domiciled in a State or Territory could "institute proceedings in any matrimonial cause in the Supreme Court of" the State or Territory of residence. Section 10(2) invested the Supreme Court of each State and Territory with federal jurisdiction to hear and determine such proceedings. Section 11 provided that the Supreme Court of the State or Territory was to exercise any jurisdiction with which it was invested under s 10 in accordance with the substantive law of the State or Territory in which the person instituting the proceedings was domiciled.
This Court held that Pt III of the Matrimonial Causes Act gave the State laws the force of federal law. It also held that that Part conferred substantive rights, which, when put in suit, gave rise to a "matter … arising under" a law of the Parliament within the meaning of s 76(ii). There was a clear "enactment" of a substantive law of the Commonwealth by the adoption of the relevant State law for the purpose of the suit, and a direction to the forum to apply the substantive law of that State[61]:

[50]

Nothing turned on the fact that the rights to which effect was to be given in "matrimonial causes" were those created by State law. The Court explicitly recognised that the Parliament might have defined those rights by reference to the laws of another polity, for example, the law of England or New Zealand. This obiter dictum supports the conclusion that the fact that the rights to which effect is given under the Nauru Appeals Act are defined by reference to the law of Nauru does not preclude the Act from operating to give those laws the force of federal law. A controversy arising under those laws therefore arises under the Nauru Appeals Act for the purposes of the conferral of jurisdiction on this Court.
One difference between Hooper and the present case is that the Matrimonial Causes Act had the effect of changing rights in the provision that permitted or authorised its application. In contrast, the Nauru Appeals Act actually creates a right in the provision that permits or authorises its application. This difference is not significant. If legislation conferring rights is otherwise supported by a head of legislative power, the Parliament can create those rights by reference to the law of another polity.
Unlike the Matrimonial Causes Act, the Nauru Appeals Act does not expressly direct the court in which jurisdiction is invested to apply the substantive law of a particular forum. The Nauru Appeals Act does not contain a provision that is directly comparable with s 11 of the Matrimonial Causes Act. The direction to the relevant State or Territory court to exercise the invested jurisdiction in accordance with the law of the State or Territory in which the person instituting the proceedings is domiciled was a clear adoption of the substantive law and a direction to the forum to apply the substantive law of that State or Territory. However, as I have indicated, as a matter of implication, the Nauru Appeals Act adopts the substantive law of Nauru as the substantive law by reference to which the rights and duties of the parties are to be ascertained.
The Director contended that Hooper differed from the present case in that this case does not concern the application of, in effect, a choice of law rule. Rather, it involves reviewing the law of Nauru. According to this argument, the controversy remains one arising under the law of Nauru and not one arising under the law of the Commonwealth. However, on its proper construction, s 8 of the Nauru Appeals Act, by necessary implication, gives effect to the law of Nauru as federal law. The controversy is not simply one of reviewing or applying the law of Nauru or reviewing the correctness of the decision of the Supreme Court of Nauru. Such a conclusion necessarily follows from an examination of the powers conferred on this Court under s 8 of the Nauru Appeals Act to determine proceedings brought under the Act. The broad powers conferred by s 8 suggest that the Court does more than simply review the correctness of the decision of the Supreme Court or apply the law of Nauru. The Court is instead directed to determine the underlying controversy between the parties - in this case, the lawfulness of the appellant's detention.
In LNC Industries Ltd, this Court held that a claim in a contractual dispute constituted a "matter" arising under a law of the Commonwealth in respect of which federal jurisdiction was engaged. The claim was framed as a claim for damages for breach of contract or for relief for breach of trust. It was common ground that such a controversy may arise under State law and relief may be available under State law. In this instance, however, the subject matter of the claim owed its existence to federal law. The rights and liabilities of the parties which could become the subject of a contract or trust existed only because of the operation of federal law. The relevant right was the right of a licensee who was permitted under the terms of the licence to import a certain number of motor vehicles to transfer that quota. Federal law and regulations established the licence and quota regimes. For constitutional purposes, a "matter" existed because the subject matter of the contracts and the action arose under and existed only by reason of the provisions of certain federal regulations and the federal Act under which the regulations were made. In their joint judgment, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said[62]:

[52]

Counsel for the Director submitted that, as the content of the claim in LNC Industries Ltd derived from the regulation, it showed that some "federal" controversy was required for a matter to arise. However, as Hooper demonstrates, a "matter" owes its existence to federal law if the subject matter of the proceeding exists only because of the federal law. In LNC Industries Ltd, there could be no contract between the parties about the treatment of the import quotas in the absence of the federal regulations. But it does not follow that, for the purposes of identifying a "matter" that owes its existence to federal law, that subject matter must itself be a creature of federal law. If federal law adopts the law of another forum and gives effect to rights and liabilities under that law, there is a "matter … arising under" that law. Investing a court of federal jurisdiction with jurisdiction to determine a proceeding involving those rights and liabilities is investing it with jurisdiction in a "matter" arising under federal law.
Evans Deakin Industries Ltd concerned a claim brought by a sub‑contractor against the Commonwealth under the Subcontractors' Charges Act 1974 (Q). This Court held that, although s 64 of the Judiciary Act "does not subject the Commonwealth to the operation of State laws", it enabled "the provisions of State law [to] be the measure by reference to which rights and obligations are ascertained in suits to which s 64 applies"[63]. Evans Deakin Industries Ltd is an example of the assimilating capacity of ss 64 and 79 of the Judiciary Act. Those sections may apply in a way that gives rise to a controversy by reference to a law, in that case a State law, that is picked up and applied by operation of the federal Act. The result is an exercise of federal jurisdiction applying federal law. Evans Deakin Industries Ltd differs from the present case because the present case applies foreign law, but the effect is the same in character.
In the joint judgment in the Native Title Act Case[64], Mason CJ, Brennan, Deane, Toohey and Gaudron JJ and I held:

[55]

Contrary to the submission of the Director, the finding that by necessary implication s 8 gives the force of federal law to Nauruan law does not create a risk that there would be no coincidence between the determination of this Court and the determination of the Supreme Court of Nauru. It is also incorrect to assume that this Court would not be making such order as ought to have been made below, but rather would be making such order as ought to be made under this adopted law of Australia. There is no disconformity between the law applied in the proceeding before this Court and the law applied in the Supreme Court of Nauru, because there is only a single law applied in this forum as federal law, and that is the law of Nauru. Reasonable minds may differ as to the interpretation and application of that law, but the body of law remains constant.
Likewise, there is no risk that this Court would be required in the application of the law of Nauru to exercise jurisdiction that is fundamentally inconsistent with the exercise of federal jurisdiction or the discharge of the duties of a federal judicial officer. If a party brought an "appeal" to this Court in relation to Kable-type legislation[66], for example, this Court would refuse to hear it on the basis that the power that the Court is being asked to exercise is incompatible with the integrity, independence and impartiality of this Court. In addition, such an "appeal" may involve a question of Nauruan constitutional law, in which case an appeal would not lie to this Court under the Nauru Appeals Act[67].
It is also immaterial for constitutional purposes that the Nauru Appeals Act, by operation of ss 5(1), 5(2) and 8, simultaneously creates a "matter", invests this Court with jurisdiction and provides for a remedy[68]. There can be no dispute that the Parliament is empowered to create a right and provide a remedy at the same time as it invests a court with jurisdiction in the matter. That much is clear from the decisions of this Court in Barrett and Hooper. Latham CJ acknowledged in Barrett that[69]:

[58]

It is also not decisive against the existence of a "matter … arising under" a law of the Commonwealth that the Nauru Appeals Act does not expressly provide for enforcement. Unlike the legislation considered in Hooper and Pasini, the Nauru Appeals Act does not expressly provide for the enforcement or execution of judgments or orders. Nevertheless, as Latham CJ acknowledged in Barrett, a matter may exist if the right or duty in question owes its existence to federal law or depends upon federal law for its enforcement. In any event, there is nothing to suggest that the Judiciary Act does not apply in relation to the enforcement in Australia of judgments or orders of this Court in proceedings brought under the Nauru Appeals Act. For example, a costs order may be enforceable within Australia against the assets of a party within the jurisdiction. It is true that the enforcement of some rights and liabilities ultimately depends on Nauruan law. To this end, Art 4(2) of the 1976 Agreement provides for orders of this Court "to be made binding and effective in Nauru." Section 51 of the Appeals Act 1972 (Nauru) provides for judgments and orders of this Court to "have force and effect in Nauru as if they were the judgment and orders of the Supreme Court [of Nauru]" and to be given effect in Nauru accordingly. But there has never been any objection to this Court making orders with respect to matters that can only be enforced out of the jurisdiction. Typically, there is some mutual enforcement or recognition provision, but even the absence of such a provision does not prevent this Court from exercising jurisdiction.
As a result, the Nauru Appeals Act is a valid enactment of the federal Parliament that confers original jurisdiction on this Court in respect of a "matter" within the meaning of s 76(ii) of the Constitution. Having reached this conclusion, it is therefore unnecessary for me to consider whether original jurisdiction is also conferred on this Court under s 75(i).
For these reasons, I joined in the order disallowing the Notice of Objection to Competency. The Director should pay the costs of the proceedings in respect to that objection. But I see no reason for making any of the additional orders sought by Mr Ruhani. There is no reason for thinking that the Director will not meet the costs order. In those circumstances, there is no ground for adding either Nauru or the Commonwealth as a party. And there is no case for an order for indemnity costs. The Director had a powerful argument to put in support of his competency objection. It was an objection that was well taken - although it was unsuccessful - in adversary litigation. Because that is so, it would be contrary to the practice of this Court to make an order for the payment of indemnity costs.
GUMMOW AND HAYNE JJ. The appellant, an Afghan national, arrived in the Republic of Nauru on 21 December 2001. He was one of a number of "asylum seekers" brought to Nauru at that time by Australian sea transport. Facilities for the accommodation of these persons were established at two localities called "Topside" and "Former State House".
By a proceeding instituted in the Supreme Court of Nauru in April 2004, the appellant alleged that he was held at "Topside" against his will by or on behalf of the Director of Police and he sought habeas corpus. The Supreme Court granted an order nisi but on the return the Supreme Court (Connell CJ) discharged the order nisi and dismissed the application. The Chief Justice delivered detailed and written reasons for that decision.
By Notice of Appeal filed in this Court on 2 July 2004, the appellant appeals from the judgment and order of the Supreme Court of Nauru and seeks, inter alia, the relief refused by the Supreme Court. Reliance is placed for the jurisdiction of this Court upon the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Act"). The respondent has contended that this Court lacks jurisdiction to entertain the appeal because the Nauru Act is not a valid law of the Commonwealth. This Court has previously exercised, without objection to competency, jurisdiction under the Nauru Act in Director of Public Prosecutions (Nauru) v Fowler[71] and Amoe v Director of Public Prosecutions (Nauru)[72].
The constitutional questions raised by the respondent are of considerable importance. Upon the answer given to them depends, in large measure, the scope for the provision by Australia of direct assistance in the operation of the judicial systems of other countries who seek that assistance.
Particular provision for proceedings in this Court under the Nauru Act is made by O 70A of the High Court Rules[73]. Order 70A r 8 deals with objections to competency of an appeal and provides for the setting down of objections before a Full Court. The respondent's Notice of Objection to Competency of the appeal was dated 28 July 2004. The objection was resisted by the appellant.
Given the assertion of invalidity of the Nauru Act, the controversy gave rise to a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). It is that jurisdiction of which the Full Court presently has been seized. There was no intervention by the Attorney-General of the Commonwealth, on behalf of the Commonwealth, in exercise of the right conferred upon the first Law Officer of the Commonwealth by s 78A of the Judiciary Act.
On 9 December 2004, the Court ordered that the objection to competency be disallowed and reserved all questions of costs. The appeal was then set down and heard on 19 April 2005 by a differently composed Bench. What follows are our reasons for joining in the disallowance of the objection to competency. We also deal in this judgment with the costs of that objection.
Various provisions of the Nauru Act turn upon the definition of "Agreement" in s 3. This states:

[64]

The reference to the state of affairs immediately before Nauru became independent is to the commencement of s 4 of the Nauru Independence Act 1967 (Cth) ("the Independence Act"). The effect of s 4 was that on the expiration of 30 January 1968, the day preceding Nauru Independence Day, all Acts of the Commonwealth extending to Nauru as a Territory of the Commonwealth ceased so to extend and the Nauru Act 1965 (Cth) ("the 1965 Act") was repealed; on and after Nauru Independence Day, Australia was not to exercise powers of legislation, administration or jurisdiction in and over Nauru.
The preamble to the 1965 Act recited the approval by resolution dated 1 November 1947 of the General Assembly of the United Nations to the placing of the Territory of Nauru under the International Trusteeship system on terms set out in the Trusteeship Agreement, a copy of which was set out in the First Schedule to the 1965 Act[76]. Articles 2 and 4 of the Trusteeship Agreement designated the Governments of Australia, New Zealand and the United Kingdom as the joint Authority to exercise the administration of the Territory, with responsibility for the peace, order, good government and defence of the Territory[77].
The preamble to the 1965 Act also recited the entry by the three Governments constituting the joint Authority into an agreement dated 26 November 1965 which made further arrangements for the government of the Territory in accordance with the Trusteeship Agreement. A copy of this agreement was the Second Schedule to the 1965 Act. Article 3 thereof vested the administration of the Territory in an Administrator appointed by the Government of Australia. Article 5 provided for a court system, with an appeal to the High Court of Australia by leave of the High Court. It was in implementation of Art 5 that s 54 of the 1965 Act provided for the exercise of jurisdiction by the High Court to hear and determine, by leave, appeals from the Nauru Court of Appeal.
It was this state of affairs which came to an end on the expiration of 30 January 1968, the day preceding Nauru Independence Day.
In the Second Reading Speech on the Bill for the Nauru Act, the Attorney-General (Mr R J Ellicott QC) said[78]:

[85]

The jurisdiction of the High Court to hear and determine appeals and applications for leave under s 5 is to be exercised by a Full Court consisting of not less than two Justices (s 7). This is a law on its face supported by s 79 of the Constitution. This provides that the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.
Section 76(ii) of the Constitution requires more than a bare conferral of jurisdiction; there must be revealed a substantive law under which there arises the matters the subject of the conferral of jurisdiction. The appellant submits that s 5(2) and s 5(3), stating respectively that this Court has jurisdiction to hear and determine the appeals mentioned in s 5(1) and the leave applications mentioned in s 5(3), are laws made by the Parliament in exercise of its authority under s 76(ii) of the Constitution to make laws conferring original jurisdiction on the High Court in any matter "arising under any laws made by the Parliament". The appellant further submits that the relevant matters arise under federal law because they owe their existence to the adoption and translation into Australian law (by s 5(1) and s 5(3) of the Nauru Act) of Arts 1 and 2 of the Agreement. This statutory implementation of the Agreement is an exercise of the powers of the Parliament to make laws with respect to "external affairs" (s 51(xxix)) and "the relations of the Commonwealth with the islands of the Pacific" (s 51(xxx)).
The rights and obligations in controversy and for determination in the matter are whether in a particular instance leave to appeal should be granted and, if so, and in cases of an appeal as of right, whether the judgment, decree, order or sentence appealed from should be affirmed, reversed or modified and consequential orders made as provided in s 8 of the Nauru Act. Section 8 will be set out below.
These submissions by the appellant should be accepted and those put in opposition by the respondent should be rejected.
The result is the conferral upon this Court of original jurisdiction as provided in s 76(ii) of the Constitution. Section 31 of the Judiciary Act makes general provision respecting judgments in the exercise of its original jurisdiction and the execution thereof. This is supplemented by s 8 of the Nauru Act, which provides that in the exercise of its "appellate jurisdiction" under s 5 of that Act, the High Court:

[94]

The immediate right, duty or liability to be established by this Court in the exercise of jurisdiction conferred by the Nauru Act is the correctness of the determination by the Supreme Court of Nauru. Were it not for the initial operation of the Constitution and laws of Nauru there would have been no such determination and no occasion for the engagement of the Agreement and its implementation in Australian law by the Nauru Act. But without that federal law there would be no subject-matter for determination by this Court.
Contrary to the respondent's submissions, it is not his case on the objection to competency but that of the appellant which draws support from authorities such as LNC Industries Ltd v BMW (Australia) Ltd[86]. The plaintiff in LNC sued in the Supreme Court of New South Wales upon an alleged agreement that the defendant would hold for the benefit of the plaintiff certain units of quota for the importation of passenger motor vehicles. The defences concerned contractual and trust issues but did not raise any question under the federal statute and regulations which established the import quota system. Nevertheless, the subject-matter of the contract and trust asserted by the plaintiff was entitlements which existed only as a result of federal law; the consequent exercise by the Supreme Court of federal jurisdiction rendered incompetent an attempted appeal directly to the Privy Council.
In the present matter, the question whether the Supreme Court of Nauru erred in discharging the order nisi for habeas corpus would be answered in this Court by reference to the law in force in Nauru; but there is only a "matter" for determination in this Court as a result of the operation of the Nauru Act.
For these reasons, the jurisdiction of this Court in the present appeal under the Nauru Act is supported by a law answering s 76(ii) of the Constitution. It is unnecessary to embark upon the reliance placed by the appellant in the alternative upon s 75(i) of the Constitution, dealing with matters "arising under any treaty".
However, something more should be said respecting the appellate jurisdiction conferred by s 73 of the Constitution. The exhaustive and exclusive nature of the provisions of Ch III was recently confirmed by Re Wakim; Ex parte McNally[87]. As Gaudron J later remarked, decisions supporting the conferral of appellate jurisdiction on this Court by laws sustained purely by the Territories power in s 122 of the Constitution are not readily reconciled with that view of Ch III[88]. This is not an appropriate occasion to consider further the present state of authority in this area[89]. It is sufficient to say that from submissions in the present case there appear no grounds of textual necessity or constitutional expediency which would warrant any distortion of Ch III beyond what may presently be required by the case law concerning s 122.
For these reasons, we supported the disallowance of the objection to competency.
There remains the question of costs of that objection.
The appellant moves for an order joining the Republic of Nauru and the Commonwealth of Australia as parties to the proceeding and an order that those added parties pay the appellant's costs of the objection to competency taxed on an indemnity basis. Pursuant to the directions of a single Justice, the parties to the motion have filed their arguments in writing. There is no occasion to require or permit oral amplification of those arguments. The motion should be dismissed with costs.
One of the arrangements recorded in the Memorandum of Understanding ("the MOU"), which is described more fully in the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ on the appeal itself[90], was that Australia "will assume full financial responsibility for the administration of activities related to asylum seekers". The appellant tendered in evidence in support of his motion copies of some correspondence between the appellant's solicitor and the Australian Government Solicitor, solicitor for the Commonwealth. The Australian Government Solicitor informed the appellant's solicitor, by letter dated 7 December 2004, that "[u]nder the [MOU] between Australia and Nauru, the Commonwealth will meet any costs orders the respondent is ordered to pay in respect of the High Court proceedings" (identified earlier in that letter as proceedings number C8 of 2004 between Ruhani and the Director of Police). The appellant proffers no reason to doubt the accuracy or veracity of this statement by the Australian Government Solicitor which, in any event, appears to do no more than record the effect of the MOU.
That the Commonwealth had agreed to meet the costs of the present litigation was apparent from at least the time that the affidavit exhibiting the MOU was filed in the Supreme Court. In these circumstances there is no occasion now to add parties to the proceeding and there is no reason to make some special order for the costs of the objection to competency. The objection having failed, the respondent should pay the costs of the objection, but the appellant should pay the costs of the motion.
These orders should be made respecting the objection to competency and the motion for joinder:

[100]

Mr Mohammad Arif Ruhani (the appellant) was one of three applicants for the issue of a writ of habeas corpus out of the Supreme Court of Nauru. The application was rejected in the decision now challenged in this Court. The appellant is an Afghan national who, with many others, wished to enter Australia, claiming protection under the Refugees Convention and Protocol[92]. However, he was intercepted at sea and taken to Nauru by a vessel of the Royal Australian Navy. He and 318 others in a like position were then kept (to use a neutral word) in Nauru, pursuant to intergovernmental arrangements between the Governments of Australia and Nauru, eventually expressed in a Memorandum of Understanding ("MoU")[93]. The other two applicants for habeas corpus were successively permitted to enter Australia. At the time these proceedings were heard by this Court, the appellant had not been given that permission. That is the background to his appeal.
The proceedings in this Court were not mounted under the Australian Constitution, s 75(v), to engage the original jurisdiction of the Court in order to question the lawfulness of the actions of officers of the Commonwealth leading to the appellant's removal to Nauru; the execution of the MoU; the application of the legislation as it affected him[94]; or the role of the officers of the Commonwealth who, as the record shows, played a continuing part in Nauru in "managing" the appellant. Instead, the appellant claims to exercise rights afforded to him both under the law of Nauru and Australian federal law to bring an appeal to this Court so as to challenge what are said to be errors in the determination by the Supreme Court of Nauru of the case that he brought to that Court challenging the lawfulness of his detention.
Because of the nature of the process the appellant has initiated, and the challenge to the validity of that process brought by the Director of Police of Nauru (the respondent), it is unnecessary and would be inappropriate for this Court, at this stage, to consider the substantive merits of the appeal. On the face of things, the respondent's challenge to the competency of the appellant's proceedings presents a dry issue of Australian constitutional law, to be decided in accordance with the text of the Australian Constitution, read with such light as is cast by decisional authority. However, enough has been said about the facts to show that there are peculiarities that give this case more than a purely statutory connection to Australia. Such additional connections may arise in the relations between neighbouring States and the people in those States. They provide the factual setting in which the Australian constitutional questions now fall to be decided.

[101]

Colony and League mandate: Since 31 January 1968, Nauru has been an entirely independent nation. It is not part of the Australian Commonwealth. Specifically it is not an Australian Territory[95]. With the arrival of the European powers in the Pacific, Nauru was colonised by the German Empire[96]. Yet, even during this time, the company licensed to exploit the rich phosphate deposits of Nauru was the Pacific Phosphate Company, a corporation domiciled in Australia[97].
After the commencement of the First World War, Nauru was quickly occupied by an Australian military force. At the end of that war, the Australian Prime Minister called for the annexation of Nauru, as a conquered German colony[98]. However, after Germany ceded its overseas possessions, including Nauru, under the Versailles Treaty[99], a mandate of the League of Nations to administer Nauru was conferred on "His Britannic Majesty"[100]. Pursuant to an agreement between the Governments of the United Kingdom, Australia and New Zealand ("the 1919 Agreement"), it was provided that Nauru should be administered, under the League mandate, by an Administrator nominated by the Australian Government. This tripartite agreement was subsequently confirmed by the Parliaments of the three nations concerned[101]. The Australian statute authorising the Australian part in the arrangement was the Nauru Island Agreement Act 1919 (Cth)[102].
Pursuant to Art 1 of the 1919 Agreement, given effect in this way, the Administrator was empowered to make ordinances (amongst other things) "to establish and appoint courts and magistrates with civil and criminal jurisdiction". A supplementary agreement of 1923[103] between the three mandatory powers provided that the State appointing the Administrator should have the power to confirm or disallow ordinances made by the Administrator. In the result, because all of the Administrators of Nauru were appointed by Australia pursuant to the 1919 Agreement, the ultimate power over the content of Nauruan written law for the entire period of the League mandate rested with the Government of the Commonwealth of Australia. This position, under Australian law, reflected the fact that Nauru was classified by the League of Nations as a "Class C" mandate. Under the Covenant of the League[104], such mandates were territories described as those that can be "best administered under the laws of the Mandatory as integral portions of its territory"[105]. That was the way Australia administered Nauru.
Pursuant to the powers so conferred, the Administrator of Nauru made ordinances which terminated the former jurisdiction of the courts of the German Empire[106], and established courts and provided for an appeal from them to the Administrator[107]. These arrangements were not repealed until 1957 when the Judiciary Ordinance of Nauru of that year provided for the establishment of a Court of Appeal. That Court was to be "a superior court of record and consist... of one judge"[108]. Such judge was to be a person who "is, or has been, a justice of the High Court of the Commonwealth or of the Supreme Court of a State or Territory of the Commonwealth"[109]. In that way, for the first time, a formal link was envisaged between the judiciary of Nauru and a member, or former member, of the judiciary of Australia.
United Nations trusteeship: Meantime, the constitutional status of Nauru had continued to evolve. After a short Japanese occupation during the Second World War[110], Nauru, like other mandated territories, was brought under the supervision of the Trusteeship Council of the United Nations[111]. A tripartite trusteeship agreement was eventually approved by the Australian Parliament in the Nauru Act 1965 (Cth). That Act incorporated, in its Second Schedule, the Nauru Agreement of 1965 ("the 1965 Agreement"). The 1965 Agreement provided for the establishment of legislative, executive and judicial branches of government for Nauru. By Art 5(4) of the 1965 Agreement, an appeal was envisaged from the Court of Appeal of Nauru to this Court, with the leave of this Court[112]. It was thus, by the 1965 Agreement and the Nauru Act 1965 (Cth), that for the first time an institutional link was established by law between the judiciary of Nauru and the judiciary of the Commonwealth of Australia.
In 1962, a United Nations mission sharply criticised the administration of Nauru[113]. It recommended that the earliest possible date be fixed for independence. In December 1967, the General Assembly of the United Nations resolved that the tripartite trusteeship over Nauru be terminated[114].
Independence and later links: By this stage the accession of Nauru to independence on Nauru Independence Day, 31 January 1968, had been decided[115]. By s 4 of the Nauru Independence Act 1967 (Cth) it was provided that, on the day immediately prior to that day, the Nauru Act 1965 (Cth) was repealed. On and after Independence Day, it was provided that "Australia shall not exercise any powers of legislation, administration or jurisdiction in and over Nauru"[116].
Although the Nauru Independence Act 1967 (Cth) severed the institutional links briefly created by the Nauru Act 1965 (Cth), and terminated any Australian jurisdiction in and over Nauru, the Constitution of Nauru envisaged that such institutional links might continue. By Art 57 of the Constitution of Nauru it is provided:

[104]

It was pursuant to Art 57(2) of the Nauru Constitution that the Parliament of Nauru, which is created by that Constitution[117], later provided for further appeals from the Supreme Court that was likewise created by that Constitution[118].
It follows that, after Nauruan independence, Australia and Nauru were linked by history and experience but were completely independent nations in relation to each other. To achieve the institutional judicial link envisaged by the Constitution of Nauru, and desired by the Government of Nauru, it became necessary for Australia and Nauru to negotiate the new institutional link. Such negotiation took place. It resulted in a new agreement between the Government of Australia and the Government of the Republic of Nauru. This was signed on 6 September 1976 ("the 1976 Agreement").
Within Australia, approval of the Parliament for the 1976 Agreement was afforded by the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Appeals Act")[119]. The 1976 Agreement, which is reproduced in the Schedule to the Nauru Appeals Act, recites the position that had obtained before Nauru's independence whereby the High Court of Australia was empowered, after leave, to "hear and determine appeals from all judgments, decrees, orders and sentences of the Court of Appeal of the Island of Nauru". It also recites "the desire of the Government of the Republic of Nauru that suitable provision now be made for appeals to the High Court of Australia from certain judgments, decrees, orders and sentences of the Supreme Court of Nauru". Finally, it recites the "close and friendly relations between the two countries".
The 1976 Agreement sets out the cases in which appeals are to lie to this Court[120] and instances where an appeal is not to lie[121]. The latter include "where the appeal involves the interpretation or effect of the Constitution of Nauru"[122].
Provision is also made by the 1976 Agreement that orders of this Court, on appeals from the Supreme Court of Nauru, "are to be made binding and effective in Nauru"[123]. Provision is made for the ready termination of the 1976 Agreement if that should be desired. Such termination is to take effect after the expiration of 90 days following a written notice of either Government of its desire to terminate the 1976 Agreement[124]. It was common ground in this appeal that at no time has either of the Governments concerned effected such a termination.
Under the Appeals Act 1972 (Nauru), as amended[125], the Parliament of Nauru had already made provision for appeals from the Supreme Court of Nauru to this Court. It did so in anticipation of (and in terms later confirmed by) the 1976 Agreement. By that Act, an "appeal" lies to "the High Court". The latter expression is defined as "the High Court of Australia established under the Constitution of Australia"[126]. For Australia, the Federal Parliament has made facilitating provisions in the Nauru Appeals Act, affording the right to appeal so far as Australian law is concerned. By s 7 of that Act it is provided that:

[118]

In discharging this constitutional function, when a party contends invalidity, there is obviously a limit to the extent to which this Court can re-express or re-interpret the words of the Parliament in order to avoid the rock of invalidity which those words appear to present. In every case of such a kind, it is a question of what is "reasonably open".
A neutral application of its powers requires this Court to pay heed to this limit. The Court must approach the challenged law without presuppositions. This, in effect, was what the respondent asked this Court to do in taking the first step that he invited. That was to declare the true character of the jurisdiction invoked by the appellant's proceedings as "appellate" and not "original" jurisdiction for the purposes of the Australian Constitution. The respondent took this course because, on the basis of recent judicial observations[132], such a conclusion presented a foundation for his submission of constitutional invalidity.
Given that the Nauru Appeals Act, the 1976 Agreement and the process filed by the appellant all describe the proceedings undertaken in this case as an "appeal" - and hence suggest, or say, that the jurisdiction invoked is "appellate" - the correct starting point in these proceedings is the one chosen by the respondent. If Australian law purports to confer appellate jurisdiction on this Court, it is appropriate for this Court to assume that the Parliament knew, and intended to do, what it said it was doing. To assume otherwise is to start in quite the wrong place.
Appellate jurisdiction - language: The respondent made a compelling argument that the jurisdiction invoked by the appellant in this Court is, for Australian constitutional purposes, appellate and not original. I accept the respondent's argument in this regard. With all respect, the contrary view cannot be reconciled with the language, history and purpose of the law and the character of the proceedings for which that law provides.
The language of the Nauru Appeals Act is perfectly clear. Thus, s 5(2) of that Act purports to invest this Court with the jurisdiction to hear and determine "appeals", as defined[133]. So defined[134], they are "[a]ppeals … from the Supreme Court of Nauru in cases where the [1976] Agreement provides that such appeals are to lie". When reference is made to the 1976 Agreement[135], it too talks of "appeals". By way of juxtaposition, such appeals are to lie to the "High Court" in respect of the exercise by the Supreme Court of Nauru of its "original jurisdiction". It is rare indeed (if it has ever happened) for an "appeal" to lie from the original jurisdiction of a Supreme Court of an independent nation to the original jurisdiction of this or any like court.
The clearest indication that the jurisdiction so invested was intended to be "appellate" is found in s 8 of the Nauru Appeals Act. That Act, a statute of the Australian Parliament, describes the function which this Court is intended to exercise as "the exercise of its appellate jurisdiction"[136]. Moreover, the Act invokes the familiar language of appellate orders. Indeed, it describes the intended dispositions in terms taken directly from the Australian Constitution, s 73, the section described in the marginal note as dealing with the "[a]ppellate jurisdiction of High Court". Thus, the Nauru Appeals Act empowers this Court to affirm, reverse or modify the "judgment, decree, order or sentence" that is appealed from. This collection of determinations, typically made in the exercise of primary jurisdiction and subject to appellate correction, is that which appears in s 73 of the Australian Constitution itself.
It can scarcely be imagined that, in drafting the Bill that became the Nauru Appeals Act and in enacting it, those responsible were unaware of the distinction drawn in the Australian Constitution between the "appellate jurisdiction" of this Court[137] and its "original jurisdiction"[138]. Whilst the chosen language cannot determine conclusively the character of the jurisdiction, it would require an unreasonable alteration of the character of the jurisdiction expressed by the two legislatures to turn the language of appeals into the substance of original jurisdiction. Prudent conjuring with words is the stuff of constitutional interpretation. Magic belongs elsewhere.
Appellate jurisdiction - history: Additionally, when the language of the Nauru Appeals Act is read against the background of its history, its effect, namely investing this Court with appellate jurisdiction, becomes still clearer.
The history of the interrelationship between the exercise of the judicial power of Nauru and the personnel and institutions of the Australian executive and judicial branches of government[139] discloses the gradual emergence of links to the Australian Judicature which were to be avowedly "appellate" in character.
At first, an appeal lay to the Administrator who was an officer of the Australian Commonwealth. However, prior to Nauruan independence, as has been explained, a link was established with personnel of the superior Australian courts and later an institutional link with this Court. The last was extinguished upon independence. Then, as such, it was explicitly revived. Moreover, it was revived in terms of an international treaty, being the 1976 Agreement. This was an instrument between two independent nation States, negotiating with each other as legal equals.
Whilst the task of characterising the jurisdiction conferred by the Nauru Appeals Act, an Australian federal law, falls for determination by this Court, it cannot be disconnected from its source in the 1976 Agreement. That Agreement did not envisage a relationship between this Court and the Supreme Court of Nauru on the footing that this Court would exercise "original jurisdiction" in relation to the Supreme Court of Nauru. It certainly did not provide, or envisage, that this Court would regard that Supreme Court effectively as a court of inferior jurisdiction subject to the "original jurisdiction" of this Court. On the contrary, the dignity and equality of the States parties which contracted the 1976 Agreement demanded nothing less than an appellate relationship between the two courts. So much was inherent in the fact that the Supreme Court of Nauru was, by the Constitution of Nauru, the highest court of that country. It enjoys the constitutional character of "a superior court of record"[140]. It is the final municipal court of an independent nation State. It has the statutory character of a court (subject to irrelevant exceptions) enjoying all of the jurisdiction vested in, or capable of being exercised by, the High Court of Justice in England as at the day of independence[141].
Whilst it is true that, within the Australian Commonwealth, judges of federal courts have been held to be subject to the original jurisdiction of this Court[142], that is so only because, within the peculiar language of s 75(v) of the Constitution, such judges have been held to be "officers of the Commonwealth". On no account is a judge of the Supreme Court of Nauru now to be so described. The Nauru Appeals Act must be read in the light of the 1976 Agreement and the status of the contracting parties to that Agreement. As such, it would be a distortion of language, and a misdescription of a serious kind, for this Court to hold that the jurisdiction conferred on it by that Act is "original" within the Australian Constitution. That would not only be contrary to the clear language and purpose of the Nauru Appeals Act, an Australian law. It would be contrary to the evolution of the jurisdiction of the Supreme Court of Nauru following Nauru's independence. For whatever Australian constitutional consequences may follow, the jurisdiction conferred is, as it says it is, "appellate". When the technical legal word "appeal" is used at such a high level of intergovernmental discourse and enactment, this Court should accept its use and give the word its technical meaning. Doing so is as important in a case of this kind as it is in construing the far less important provisions of purely local legislation[143].
Appellate jurisdiction - purpose: Nor are the powers afforded to this Court by the Nauru Appeals Act appropriate to the exercise of "original" jurisdiction. Had it been intended that this Court would exercise its original jurisdiction, other and different powers, such as the issue of the writs and other remedies of the kind mentioned in s 75 of the Constitution or in the Judiciary Act 1903 (Cth), would have been provided. Unsurprisingly, given the 1976 Agreement, the history, the language and the objects of the Nauru Appeals Act, the remedies afforded to this Court in relation to determinations of the Supreme Court of Nauru were, and were only, those appropriate to the exercise of its appellate jurisdiction.
Nor is the language of the appellant's notice of appeal apt to an invocation of this Court's original jurisdiction. In terms, it invokes appellate jurisdiction. It seeks appellate remedies. There is no mention amongst the grounds of appeal of any suggested jurisdictional or like error by the Supreme Court of Nauru. Instead, the notice of appeal, as the 1976 Agreement and the Nauru Appeals Act contemplate, requests this Court to determine the legal merits of the matter as on an appeal which accepts that the same questions have been determined earlier by the Supreme Court of Nauru.
Thus, the purpose of the Australian federal law and of the appellant's proceedings is to engage a legal process properly described as "appellate" not "original" in character. In The Tramways Case [No 1][144], Griffith CJ explained the distinctiveness of appellate jurisdiction. He contrasted it with the purposes and character of original jurisdiction. The former involves a redetermination of the original cause between the same parties by examining the merits and correcting any error in the decision, of fact or law, as may be allowed. The latter is a new proceeding. Typically, it involves different parties. It ordinarily addresses some defect as to jurisdiction. As such, it is usually unconcerned with the merits of the case itself. Normally, its focus is process and conformity with legal powers. By these criteria, the purpose of the "appeal" afforded by the 1976 Agreement and the Nauru Appeals Act, and invoked by the appellant's process, is appellate. It is not an invocation of original jurisdiction.
Appellate jurisdiction - true character: Against the background of this analysis, it is not really difficult to classify the proceedings invoked in this case. They are truly a step in an "appeal"[145], just as they assert they are. They are designed to correct the errors of the court appealed from, the Supreme Court of Nauru, as a matter of legal substance. They are not, as such, designed to create a wholly new legal right, collateral to the earlier proceedings[146].
It is true that, occasionally, the Australian Federal Parliament, in a domestic context of federal law, has used the word "appeal", although conferring original jurisdiction, including on this Court[147]. Typically, such cases involve a review of decisions of persons or inferior tribunals carrying out administrative functions, where the matter is, for the first time, brought into a court that exercises judicial power[148]. The use of the word "appeal" in this context of jurisdictional subordination is familiar in Australian legal discourse. Indeed, it is acknowledged in federal statute law[149].
However, in the present context, given the explicit language of the 1976 Agreement and the Nauru Appeals Act, the history that lay behind those instruments, the purpose of the provision of an "appeal", the dignity of the States parties that agreed to it and the character of the jurisdiction that ensued, such local analogies are completely inapplicable.
As the Supreme Court of a nation State, respected as independent by Australian law, recognised as such by international law, it is inadmissible to suggest that the judgments, decrees, orders and sentences of Nauru's Supreme Court would be made, or are, subject to this Court's original jurisdiction. This Court should not construe the 1976 Agreement to give effect to a result contrary to its language and purpose[150]. It should not do so because of imagined local constitutional difficulties with the contrary conclusion.
If, in the interpretation of the Australian Constitution, this Court has taken (as it has) a strict view of the meaning of the word "appeal"[151], why should it now adopt a different, contrary and malleable meaning for that notion as contemplated, in the context of the Nauruan Constitution, by its statute law - and by the international agreement made with Australia pursuant to such law? Why should it say that, in the latter context, unlike the former, "appeal" means a very different legal process with different consequences, namely an invocation of original jurisdiction?
In the result, this Court should construe the Nauru Appeals Act so as to carry the 1976 Agreement into effect according to its terms and not so as to alter and rewrite the Act and the Agreement. Any such rewriting would involve this Court in an intrusion upon the governmental powers that belong to others, both in Nauru and Australia. Still less should we engage in a rewriting that denies the status of the Supreme Court of Nauru as a superior national court of record and thus insusceptible to another court's original jurisdiction, including that of this Court[152].
It may be true that in the text of the Australian Constitution the words "appellate jurisdiction" do not appear in Ch III[153]. However, the expression exists in the marginal note to s 73 ("Appellate jurisdiction of High Court"). And it appears there in contrast to the marginal note to s 75 ("Original jurisdiction of High Court"). The juxtaposition is plain and the remedies provided in s 73, and contemplated by s 75, are apt to each specified legal procedure. The remedies that are sought, and are apt, in this case are those proper, and only proper, to the exercise of appellate jurisdiction. It requires extended mental gymnastics to conclude otherwise.
It is also true that appellate jurisdiction normally implies that the appellate court lies in the "same curial system" as the court a quo[154]. But as the availability of appeals to the Judicial Committee of the Privy Council long showed, that "same curial system" is a legal construct. It is defined by legal instruments. It may include the judicial institutions or personnel of another country or of several countries. A number of other appellate courts of the Commonwealth of Nations, present and superseded, demonstrate that this is so[155]. We should not needlessly demean the Supreme Court of Nauru by reducing its status to the equivalent of the former Australian Taxation Board of Review[156], Valuation Boards[157], or the Defence Force Discipline Appeal Tribunal[158] which were or are not even courts. In this, I agree with what Callinan and Heydon JJ state in their reasons[159].
Conclusion: jurisdiction is appellate: It follows that I am confirmed in the view that I stated in Re Wakim; Ex parte McNally[160]. The jurisdiction conferred on this Court by the Nauru Appeals Act is "appellate in character". What is the consequence of this conclusion?

[119]

The respondent's case: On the basis of the foregoing classification, the respondent invoked a series of observations in this Court, some from its earliest days, suggesting that s 73 of the Constitution constitutes an exhaustive statement of the Court's appellate jurisdiction[161]. Because there is no explicit provision in s 73 that envisages the conferral of appellate jurisdiction with respect to determinations of a court of a foreign nation, it follows (on the argument of the respondent) that the attempt by the Nauru Appeals Act to confer such jurisdiction on this Court had failed.
On the foregoing premises, the respondent contested the capacity of the legislative powers invoked by the appellant to sustain the Nauru Appeals Act[162]. Such powers, like all of those in s 51, are expressed to be "subject to this Constitution". As such, they are subject to s 73 and Ch III. Section 73 does not afford the power to engage the appellate jurisdiction of this Court. When read with the rest of Ch III, a negative implication arises to exclude laws conferring federal jurisdiction beyond that stated in s 73. The submissions for the respondent draw, in this respect, upon many judicial opinions expressed during the history of this Court, most (but not all) in obiter dicta, inessential to the decision in question.
This argument is by no means meritless. If one accepts the view that s 73 of the Constitution exclusively defines the "matters" which may be the subject of the exercise of appellate jurisdiction by this Court, the argument would be compelling. My conclusion that the jurisdiction provided for in the Nauru Appeals Act (and the 1976 Agreement) is appellate would then lead to the success of the respondent's submission and the dismissal of the appellant's purported appeal as incompetent by reason of incompatibility with the Australian Constitution.
However, for a number of reasons I cannot agree with this second step in the respondent's argument. I do not agree that s 73 exhaustively defines this Court's appellate jurisdiction. In particular, I do not agree that the "appeals" specified in s 73 of the Australian Constitution represent the universe of the possible appellate jurisdiction of this Court, particularly where the Court is not exercising the judicial power of the Commonwealth as such. Moreover, I do not agree that Ch III of the Constitution contains the negative implications on which the respondent relied.
Section 73 is not exhaustive: The starting point must be the text of the Constitution. It, and not judicial expositions, expresses the law that governs this Court. In terms, s 73 is not expressed negatively. It does not state that this Court shall have jurisdiction in appeals "only" in the three categories mentioned (one of them, today, effectively a dead-letter[163]). This is a significant omission because, where the need for such a negative stipulation was felt, it was stated in the Constitution, as in the confinement of appeals under s 73(iii) "as to questions of law only" (emphasis added).
Had it been the purpose of the Australian Constitution to restrict appeals to this Court to the three categories mentioned, and to them alone, the facultative language used would have been different. As Higgins J observed tellingly in Porter v The King; Ex parte Yee[164]:

[121]

Since a number of the early opinions were written in this Court, to the effect that the specifications in s 73 of the Constitution are exhaustive, three pertinent developments have happened in constitutional exposition. Each is relevant to rebut the suggestion that s 73 is an exhaustive statement of this Court's appellate jurisdiction.
First, courts are now much more cautious about the use of the expressio unius principle of construction generally and in the context of constitutional interpretation especially[165]. In giving meaning to a written text, but especially in a constitutional instrument expressed in brief terms the text of which has proved difficult to change, it is now generally accepted that it is a mistake to infer that an affirmative catalogue necessarily excludes every other case.
Secondly, the opinion that s 73 of the Australian Constitution was an "exhaustive" statement of the appellate jurisdiction first emerged in a time when the approach to statutory construction in this and other courts was highly literal. This Court was then subject to supervision by the Privy Council[166], including in most constitutional matters. Since that time, appellate courts throughout the common law world[167], including in this country[168] and especially in constitutional matters[169], have adopted contextual and purposive approaches to contested problems of legal interpretation. They have generally rejected the approach of verbal literalism.
This profound change in the judicial approach to deriving the meaning of contested language needs to be kept in mind by contemporary judges when reading the constitutional expositions of their predecessors. It was natural for judges of this Court in earlier times to adopt a highly literalist approach to problems of constitutional interpretation. That was the approach to the judicial task then generally accepted and, in any case, enforced by the Privy Council. Today, we should be cautious about citing such approaches. They may not represent accurately the contemporary understanding of the law of the Australian Constitution or any national Constitution.
Thirdly, this consideration has special significance for constitutional interpretation, more than a century after the adoption of the Australian Constitution. There are too many instances, including in recent cases, to deny the force of Professor P H Lane's observation that a change in the "interpretative method" of this Court on constitutional questions has occurred "from literalism and legalism to a kind of New Realism"[170]. Professor Lane detected, correctly in my view, a "greater quest for the purpose in a constitutional provision and an invocation (in some quarters) of contemporary perceptions and values". In my opinion, this is no more than affording such a text a functional analysis. That is an analysis befitting the purpose of the Constitution as an enduring charter of government, necessarily adapting from age to age, within its language, to the needs of governance of the Australian Commonwealth[171].
When these basic changes of approach are recognised, and given effect, consistently and not selectively, they oblige the present judges of this Court to draw back from the suggestions made in earlier opinions that s 73 is an exhaustive statement of the Court's appellate jurisdiction. The section does not say that. The restraints that apply to the imposition of a restrictive implication[172] persuade me that it would be a serious error to read s 73 in such a way.
It was perhaps natural in the context of 1901 that the Australian Constitution did not expressly provide in s 73 for the conferral of jurisdiction upon this Court to hear and determine appeals from the judgments of courts of friendly countries beyond Australia, specifically in the Pacific Islands. In those days, such appeals, where they existed, would normally have gone to the Queen in Council, for which, in the Australian case, s 74 of the Constitution provided. But the facility eventually to provide for such appeals existed in s 51[173]. Only an expansion of a negative implication in Ch III would cut back the availability of that facility in Australia today.
Given the need to harmonise the entire Australian Constitution, including ss 51 and 73, and to read the document as a whole and always as an instrument stating the principles of governance of an independent nation[174], there are abundant reasons for avoiding the narrow view propounded by the respondent. It represents the breath of a bygone age which we should not continue to inflict on the Constitution without the soundest reasons for doing so.
Section 73 - other exceptions: Moreover, despite repeated judicial affirmations that s 73 represents an exhaustive statement of the appellate jurisdiction of this Court, from the earliest days of the Commonwealth, this Court's practice has been to the contrary.
Thus, the Court originally exercised jurisdiction under the Colonial Courts of Admiralty Act 1890 (Imp)[175]. It has twice exercised jurisdiction in Nauruan appeals[176]. Although it is true that jurisdiction in those appeals was not contested, it is a fundamental duty of every court, before entering upon the exercise of jurisdiction, to satisfy itself that such jurisdiction exists. This Court has said as much on many occasions[177]. Presumably, none of the learned Justices who took part in the earlier appeals saw any difficulty in the exercise of the jurisdiction called "appellate". In none of those appeals was an order conventional to the exercise of original jurisdiction made by this Court.
The most important exception to the treatment of s 73 as an exhaustive statement of the appellate jurisdiction of this Court concerns the appeals from the Supreme Courts of the Australian Territories. Unless, derivatively, such courts are to be classified as "federal courts" (a view that has been denied at least when they are exercising the judicial power of the Territory concerned[178]), Territory appeals could not fall within any of the other categories expressly stated in s 73[179]. Yet the Federal Parliament has validly provided for appeals from Territory courts to this Court. Such appeals are regularly heard and determined. The judgments, decrees, orders and sentences of this Court are made in the disposition of such Territory appeals.
It is not an answer for the respondent, or anyone else, to say that the Territory "exception" is an anomaly that proves the general rule. Either s 73 of the Constitution expresses an exhaustive list or it does not. So long as Territory appeals continue to come to this Court, or to any other federal court within Ch III, they deny, upon this premise, the postulate of exhaustiveness. They are fatal, unless overturned, to the central plank of the second step in the argument of the respondent. They necessarily admit of categories of appeal to Ch III courts from courts beyond those specified in s 73(i) and (ii) of the Constitution.
Disjoining Territory appeals from the integrated Judicature of the Australian nation, at this stage of the evolution of the Commonwealth, would be unthinkable. Only ultra-formalism and the narrowest literalism would embrace such an unnecessary and nationally disruptive consequence. True, narrow constitutional views have sometimes prevailed[180]. However, usually they have been avoided because of the functional approach now taken by this Court to basic questions of constitutional interpretation[181]. This is not a time, and this is not a subject matter, upon which to embrace such a gnarled and shackled view of the Australian Constitution.
Section 73 - "judicial power of the Commonwealth": It is difficult to reconcile all of the case law on the meaning and operation of s 73 in the context of Ch III of the Constitution. One way of doing so was expounded for the appellant. This was to treat s 73, as appearing in Ch III, as an exposition of the structure and content of the "judicial power of the Commonwealth" (emphasis added), which is mentioned in s 71 at the outset of the Chapter. Upon this view, s 73 is designed to provide for this Court's appellate jurisdiction in all Australian federal matters involving the exercise of the judicial power of the Commonwealth. That includes in appeals from a single Justice of this Court and from federal and State courts as identified in s 73.
It is true that this view might, with some exceptions, reconcile some of the judicial remarks in this Court with the practice observed in respect of appeals from Territory courts and others not expressly spelled out in s 73[182]. I do not exclude it. Upon this view, the purpose of s 73 is not to afford an exhaustive list but to entrench minimum entitlements to appeal from courts of the several Australian polities (federal and State) viewed as making up the constituent units of the federation. Because appeals from the Supreme Court of a foreign country do not involve the hearing and determination of process from a judgment, decree, order or sentence made in the exercise of the judicial power of the Commonwealth, s 73 would be silent as to such jurisdiction. Nothing else in Ch III expressly forbids it.
Whilst I acknowledge the force of this argument, it presents certain difficulties. This is so because, reading s 73 with today's eyes, I regard Territory courts as "other federal court[s]" within s 73(ii). I consider that, their jurisdiction and powers being ultimately traced to s 122 of the Australian Constitution and to federal law, such courts are at all times exercising "[t]he judicial power of the Commonwealth" within the Australian Constitution. Moreover, at least so far as Australian courts are concerned, even on an appeal from a foreign court, they would in my view probably be exercising, in part, the judicial power of the Commonwealth. They would do so because, unless forbidden expressly by s 73 or impliedly by the language of Ch III, part of that judicial power has been deployed for Australian (as well as Nauruan) purposes under s 51 of the Constitution. It is unnecessary to take this point further.
I have considered whether I should subordinate my opinion about the meaning of s 73 of the Australian Constitution and the requirements of Ch III to the assertions that the section is an exhaustive statement of this Court's appellate jurisdiction. I have previously expressed my view on this issue[183]. For the moment, it is a minority one.
In matters of ordinary public and private law, judges of this Court normally submit to the considered exposition of the law as stated by the majority[184]. However, in the interpretation of the fundamental law of the Constitution, a different rule prevails[185].
Where the constitutional point is important, a judge of this Court may continue to give effect to a minority view the judge holds. Such, in my opinion, is the case here. The respondent's textual arguments are unconvincing. The assertions of exhaustiveness have admitted of several clear exceptions. The suggested negative implication fails by the test ordinarily deployed to sustain such implications[186]. The repetitions of the assertion arguably represent confirmations of interpretations adopted in an earlier time when a highly literalist approach to constitutional and statutory meaning was given effect. The earlier dicta have been insufficiently subjected to fresh scrutiny.
There are, it is true, some negative implications to control the conferral of an appellate jurisdiction on this Court from the judgments, decrees, orders and sentences of courts of a foreign country. These include a prohibition on the conferral of jurisdiction that would violate the essential character of a court of the Australian Judicature to which the appeal was brought[187]. Similarly, it would be fundamentally inconsistent with Ch III of the Australian Constitution to endanger, in any way, the independence of such a court or to threaten to over-burden it, deflecting it from its constitutional and statutory functions in Australia.
None of these dangers exists in the present case. Nor were they suggested. The appellant has withdrawn an argument that, potentially, would have involved this Court in the interpretation of the Constitution of Nauru[188]. With this, the respondent withdrew one ground of his objection to competency of the appeal based on Art 2(a) of the 1976 Agreement. These steps confined the objection to competency to the respondent's arguments based on the Australian Constitution.
Conclusion - appellate jurisdiction is valid: The result of my analysis is that there is no express or implied limitation in s 73 of the Australian Constitution, or in any other part of Ch III, that forbids the conferral of the appellate jurisdiction contained in the Nauru Appeals Act.
Once this conclusion is reached, there is no relevant restriction upon the enactment by the Australian Parliament of a law conferring jurisdiction and power upon this Court in terms of the Nauru Appeals Act. The legislative power so to provide appears in ample terms in s 51 of the Australian Constitution, notably in par (xxix) ("external affairs"); par (xxx) ("the relations of the Commonwealth with the islands of the Pacific"); and par (xxxix) ("matters incidental to the execution of any power vested by this Constitution in the Parliament … or in the Federal Judicature").
I have previously referred to the need for, and utility of, such an appellate jurisdiction[189]. The slightest familiarity with the involvement of Australia in attempts to strengthen the institutions of governance in Pacific countries, including in judicial and legal matters[190], demonstrates the importance, both for Australia and for the neighbouring countries themselves, of such judicial links where they are mutually agreed on appropriate terms and conditions, as they were in the case of appeals from the Supreme Court of Nauru.
The respondent's arguments, in respect of the ambit of the appellate jurisdiction of this Court, represented an attempt to press upon Ch III of the Australian Constitution a view about its capacity to adapt to succeeding ages akin to A D Hope's ironic description of Australia[191]:

[124]

Original jurisdiction inapplicable: The objection to competency therefore failed on the foregoing grounds. The proceedings are an "appeal". They permissibly invoke the appellate jurisdiction of this Court. They do not, may not, and do not purport to involve the original jurisdiction of the Court. They are not analogous to proceedings within federal domestic jurisdiction in Australia that are called "appeals" but which are not truly so in their character. Only a strained characterisation of the appellant's process would sustain the application of such a municipal analogy.
This being the case, it was unnecessary for me, in order to arrive at my orders, to consider what might have been the case if, contrary to my opinion, the appellant's process was not an "appeal" and the Nauru Appeals Act provided for the invocation of the original jurisdiction of this Court. I shall refrain from adding excessive remarks on an hypothesis with which I strongly disagree.
Hypothesis of original jurisdiction: Nevertheless, because other members of this Court have elected to reverse the sequence in which the respondent advanced his objection to the competency of the appeal[194], I will add some observations on the hypothesis of an invocation of original jurisdiction. Doing so may be prudent, given the interpretation of s 73 that presently enjoys majority support in this Court.
The s 75(i) contention: Gleeson CJ, McHugh J, and Gummow and Hayne JJ find it unnecessary to embark upon the appellant's reliance on s 75(i) of the Constitution concerned with the jurisdiction expressly conferred on this Court "[i]n all matters ... arising under any treaty". In the present case, the appellant suggested that this self-executing conferral of original jurisdiction applied because, albeit indirectly, the "matter" constituted by the substantive controversy between the appellant and respondent arose under the 1976 Agreement, which was a "treaty" in the constitutional sense.
I adhere to the view that I expressed in Re East; Ex parte Nguyen[195]:

[126]

In the contest before this Court, presented by the respondent's objection to the competency of the appellant's "appeal", it may be arguable that the original jurisdiction is enlivened by s 75(i), at least to that extent. Once however that "matter" is disposed of, there remains only the "controversy" presented by the substantive appeal. That controversy does not depend on the construction or effect of the treaty, namely the 1976 Agreement scheduled in Australian law to the Nauru Appeals Act. Nor has any other "treaty" been identified as relevant. Instead, the remaining issues in the grounds of appeal, so described, concern only the interpretation of various laws of Nauru in their relation to the facts and specifically the conditions purportedly imposed on the special purpose visas granted to the appellant but allegedly not sought by, consented to or wished for by him.
On the face of things, upon this hypothesis, the appellant's invocation of original jurisdiction would face the same difficulties as I identified in Re East[196]. It would fail because the necessary element of a relevant constitutional "matter" would be missing.
The s 76(ii) contention: Gleeson CJ, McHugh J, and Gummow and Hayne JJ, however, uphold the jurisdiction of this Court to hear and determine the appellant's "appeal" pursuant to s 76(ii) of the Constitution.
The respondent submitted that it was incorrect to regard the "matter" in controversy between the parties as "arising under any laws made by the [Australian Federal] Parliament". According to his submission, properly classified, the controversy, in the sense of the dispute about the substantive rights and duties in question, owed its existence solely to the law of Nauru; not to an Australian law made by the Federal Parliament.
It would have been natural enough for this Court to have adopted a requirement that a matter must arise directly under the Australian federal law postulated in s 76(ii) of the Constitution. After all, the Court, from its early days, has rejected the suggestion that s 76(i) could found jurisdiction unless there are "matters which present necessarily and directly and not incidentally an issue upon [the] interpretation [of the Constitution]"[197]. Professor Lane[198] observed that "[i]n keeping with the High Court's general literalism I rather expected to find an observation by the Court to the effect that jurisdiction under Constit s 76(ii) does not obtain unless the matter arises 'directly' under a law made by the Parliament". Nevertheless, as he noted, that was not the approach adopted by this Court in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[199]. In that case, the right or duty claimed owed its existence, or depended for its enforcement, on regulations that were allegedly authorised by an Ordinance, in turn made under the Seat of Government (Administration) Act 1910 (Cth), s 12. The law invoked was thus twice removed. Yet it was held sufficient to sustain the assumption of jurisdiction under s 76(ii) of the Constitution[200].
If it is permissible, under s 76(ii), for the Parliament to confer original jurisdiction on this Court in a matter arising indirectly under a law made by the Parliament, the controversy in the present case can readily be so classified. The Australian federal law simply picks up the Nauruan law. It treats it as a factum upon which the exercise of this Court's jurisdiction is performed.
Of course, many of the same arguments were deployed by the respondent against this construction. Thus, s 76 of the Constitution would, upon one view, be subject to an implied limitation that it was concerned, and only concerned, with "laws made by the [Federal] Parliament" so far as they related to controversies, the resolution of which depended wholly on Australian law. However, that is not a limitation that should be read into s 76 of the Constitution as necessary to its operation. On the contrary, it is not uncommon in controversies in Australian courts, involving private international law, for foreign law to be proved as a fact and for Australian courts to give effect to such law[201] where there is no inconsistent Australian law and certainly no countervailing consideration of public policy[202].
It follows that if, contrary to my preferred conclusion, the jurisdiction of this Court invoked by the appellant pursuant to the Nauru Appeals Act is indeed "original", and not "appellate", I would agree with the opinion expressed by Gleeson CJ, McHugh J and Gummow and Hayne JJ. Upon that hypothesis, there is no express provision in s 76 of the Constitution to forbid such construction. There is nothing in the other provisions of Ch III to stand in the way. Upon that hypothesis, there are many reasons of principle and policy which would support such a construction of s 76(ii). It is consistent with the past authority of this Court that has acknowledged that the "matter" in controversy may arise indirectly under a law made by the Parliament. Here such an indirect connection would certainly exist. But it is important not to overlook the difference between the majority's conception of implied limitations in s 73 and the lack of such implications allowed in s 76(ii) of the Australian Constitution.

[128]

Motion for indemnity costs: It remains for me to deal with a motion filed by the appellant, after the hearing of the objection to competency, seeking special orders joining the Commonwealth of Australia and the Republic of Nauru to the proceedings for the purpose of securing against both of those entities an award of indemnity costs in relation to the costs incurred in responding to the objection to competency.
Procedural background: The background facts pertaining to the objection to competency are described above. However, to understand the appellant's motion and the orders he seeks, I will record a number of curiosities in these proceedings that are not revealed in the reasons of the other members of this Court. They cast a very different light upon the matter from what at first appears.
In preparation for the hearing of this appeal, the respondent, in support of its Australian constitutional objection, filed notices pursuant to s 78B of the Judiciary Act 1903 (Cth). One such notice was served on the Commonwealth. However, upon the return of the objection for separate argument before a Full Court of this Court, neither the Commonwealth nor the Attorney-General of the Commonwealth appeared, as would have been their right under federal law and normal practice.
This left the defence of the validity of the Australian legislation to the appellant alone, acting through his lawyers. It was my view, expressed twice at the outset of the hearing[203], that this presented a most unsatisfactory state of affairs. It is remarkable, and in my experience wholly unprecedented, where there is an attack on the validity of federal legislation of which the Commonwealth is on notice, for it to absent itself from assistance to the Court, either to support (as would be usual), or possibly to disclaim, the validity of the challenged federal law. To leave the defence of that law, when under attack by a public officer of a foreign country having treaty arrangements with Australia, to another foreigner, detained in that country under arrangements with Australia (and such lawyers as that foreigner can secure from that position of disadvantage), is unique. Yet it was not the only unique feature of this case or of the way it was litigated.
Neither during the hearing nor after the objection to competency stood for judgment did the Commonwealth (which appears in this Court in so many matters far less sensitive and significant[204]) seek to appear, to intervene or otherwise to provide oral or written submissions in response to the respondent's arguments challenging the validity of the law providing for appeals to this Court from Nauru under the Australian Constitution. Although the point argued before the Full Court was one which was of potential importance for the meaning and application of the Australian Constitution, the powers of the Australian Federal Parliament and, in particular, as those powers concern the relationships of Australia with neighbouring countries especially of the Pacific Islands, this Court was left to decide the objection without the Commonwealth's assistance.
The human mind, ever curious, speculates as to why the Commonwealth was prepared to leave to an indigent foreign refugee in detention the fate of a national law of Australia, potentially of large significance extending beyond the present case and parties. In so far as speculation presents answers to my mind, they do not reflect favourably on the Commonwealth or those who made the decisions on its behalf when notified of the hearing of the objection to competency in this Court.

[132]

At least after the matter was specifically raised by the Court, the fact that the Commonwealth, by way of indemnity, was funding the challenge by the respondent to the competency of the appellant's appeal should, in my view, have been brought to this Court's notice. This is because the answers given to the questions asked in court, with respect, led naturally to a conclusion that the Commonwealth and the respondent were at arm's length; and that the sole source of the initiative for the proceedings was a decision on the part of Nauru or its officials, such as the respondent. As it transpires from the affidavits filed in support of the costs motion, not only was the Commonwealth absenting itself from defending the validity of legislation enacted by the Federal Parliament, but it was at the same time providing comfort, by way of an agreed indemnity for costs, to an officer of a foreign country to attack in this Court the validity of Australian federal legislation. I cannot remember a similar position arising in my judicial experience. From my reading, I do not remember any case of a like kind occurring in the entire history of the Commonwealth or of this Court.
The Commonwealth should not, of course, be penalised for any lack of full disclosure to the Court by others when the Commonwealth was absent from the hearing. However, that absence takes on a new dimension once the previously undisclosed dealings between Nauru and the Commonwealth in respect of the costs of the proceedings come to light. They were not revealed. Nor was the appellant on notice of them, simply from the terms of the MoU[207]. In his written submissions, the appellant states that he was unaware of the circumstances of the costs indemnity to the respondent for the competency issue before press reports appeared, revealing the indemnity, on the day following the conclusion of the hearing of the objection to competency in this Court. I accept that statement.
Nauru's objection to joinder and orders: Nauru objected to its joinder and to the making of any order for costs against it. So did the Commonwealth. Each asserted that neither the motion nor any special order of joinder or costs was necessary or appropriate. The suggested reason, which has now found favour with the majority of this Court, is that no difficulty arises for the appellant's recovery of costs against the respondent because Nauru (as the Court now knows) is entitled to an indemnity from the Commonwealth in respect of any costs that it is ordered to pay to the appellant. This, it is said, affords an assurance to the appellant that his costs will be met and this Court's order for costs on the competency hearing fully discharged. The appellant responds that the existence of that indemnity is no answer to his submission that he is entitled, in the circumstances, to a special order for costs and that, to procure such order, prudence suggests that those who will have to pay it should be added as parties for that limited purpose.
The Commonwealth supported Nauru's argument that protection of the position of the appellant with respect to costs was unnecessary, by orders of the kind that the appellant had sought, because, on the day that the appellant's notice of motion was served, 7 December 2004, the Australian Government Solicitor had sent a letter to the appellant's solicitors which included the following statement:

[137]

One question that arose in the appellant's appeal to this Court was the competency of that appeal. That question was raised by the respondent. Another question that has now arisen is the disposition of the costs of the failed objection to competency and the appellant's submission that a special order should be made in his favour.
Providing for the costs of proceedings is a normal part of the exercise of the judicial function in determining a matter. This Court, in the exercise of its own jurisdiction and powers, has a large discretion to provide for costs[208]. Once this Court's jurisdiction and powers are lawfully invoked, it is within the Court's functions to make orders for the costs, if any, that should be ordered in any disposition of proceedings. To the extent that Nauru, in its written argument, submitted that this Court lacked power to go beyond orders disposing of the appeal, whether under the foregoing provision of the Rules or otherwise, because of the terms of s 8 of the Nauru Appeals Act, I would reject that submission. It is natural that that Act should provide for the disposition of an appeal to this Court. But it is equally understandable that other sources of jurisdiction and power, including quite possibly the Australian Constitution itself, permit this Court to make orders for costs consequent upon the disposition of proceedings before it, from whatever source. Were the Court unable to do so, disposition of an appeal in favour of a party would, in many cases, constitute a hollow victory.
Costs orders against non-parties: But is it necessary for an order to be made joining Nauru or the Commonwealth? The submissions on behalf of those entities that joinder was unnecessary for factual reasons in my view fail. Whilst it is true that the now-revealed particular indemnity given by the Commonwealth ensures that this Court's costs order against the respondent will ultimately be borne by the Commonwealth, it says nothing about whether a special order should be made, as for indemnity costs or solicitor and client costs, such as the appellant has sought. In so far as the indemnity arrangements are belatedly advanced to repel any need for joinder, I would reject the argument. In my opinion, the appellant's request for a special order must be considered in order to dispose of the motion properly.
This conclusion presents, in turn, two issues. The first is whether it is necessary to join a person or entity as a party to proceedings so as to make effective an order for costs against that party or whether it is otherwise convenient and proper to do so. The second is whether, in the circumstances of this case, a special costs order should be made.
There is no doubt that this Court has the power to make an order for costs against a non-party[209]. The jurisdiction and power to do so are engaged when that non-party has an interest in the subject of the litigation and where it is demonstrated that it is involved in some real way in the outcome of the matter[210]. Thus, an involvement in the payment of the costs of particular litigation may constitute such an interest as will attract an order directed to a non-party in respect of the costs[211]. The exercise of such powers is, of course, subject to observance of the requirements of procedural fairness. Under those requirements, a non-party will not be ordered to pay any part of the costs of the proceedings without first being notified of that possibility and afforded the opportunity to contest the making of such an order[212].
Nauru: no special costs order: In the present case, the Republic of Nauru and the Commonwealth of Australia were on notice of the appellant's motion. They were both afforded the right to be heard in resistance to a costs order, and in particular a special order for indemnity or solicitor and client costs. To this extent, it is not essential to join the Commonwealth, although it may be appropriate to do so. However, were an order contemplated against Nauru, a foreign State, it would be necessary, and proper, in my view, to join it as a party, out of respect for its status and dignity and so as to permit the different and more substantial questions involved in making any such orders against it to be fully ventilated and decided.
In the result, I am unconvinced that Nauru should be joined as a party or that any special costs order should be made against it. Nauru is, in a real sense, already present in the Court in the form of the respondent. He is a public officer of Nauru. Inferentially, he is carrying out decisions made by the Government of Nauru. I therefore see no utility or necessity to join Nauru as a party. Nor do I consider that anything that Nauru or the respondent have done (so far as the evidence shows) attracts any special order for costs against either of them. In these circumstances, it is not necessary to join Nauru to ensure that all questions in the matter, including costs, are effectively and completely determined. In so far as the motion seeks relief against Nauru, I therefore agree with the other members of the Court that it should be dismissed.
The Commonwealth: indemnity order: The position of the Commonwealth is different. It must answer to the appellant's claim that it should bear his real costs of resisting the challenge to the competency of the appeal. The simple order that the respondent pay the appellant's costs would entitle the appellant to no more than the bare costs as between party and party. It is within judicial knowledge that such costs represent only a fraction of the real costs that are incurred in bringing, or defending, proceedings in this Court.
The appellant has established that the Court should exercise its jurisdiction and power to order that his real costs be paid by the Commonwealth. If a special order were not made, the indemnity given by the Commonwealth to Nauru and the undertaking given by the Commonwealth to meet the appellant's costs of the objection to competency would not go far enough.
It is true that this Court, by its costs order, normally provides only for the party and party costs of a successful litigant. But this is not a normal case. A larger costs order, whether for indemnity or solicitor and client costs, will not usually be made, and particularly not against a non-party, unless some feature of the litigation convinces the Court that the party entitled to costs should have a special order. Instances in which such orders are made include where the opponent's conduct has been "plainly unreasonable", pursued for "an ulterior or collateral purpose"[213], undertaken in an "unmeritorious, deliberate or high-handed" way[214] or where that opponent has been shown to be guilty of "unreasonable conduct, albeit that it need not rise as high as vexation"[215].
When I have regard to the conduct of the Commonwealth in these proceedings, as now known to the Court, it has been highly unreasonable and such as to warrant the Court's making its disapprobation clear by providing a special costs order.
Australian federal legislation was challenged as constitutionally invalid. The Commonwealth was on notice of that challenge. As is now known, it was actually funding the challenge by way of an indemnity arrangement known to the Commonwealth and its officers, but unknown to the appellant. The Commonwealth elected not to appear in this Court to support the validity of the Australian legislation. That validity has now been upheld, but no thanks to the Commonwealth's assistance. Indeed, it is despite its deliberate absence and its now disclosed financial support for the attack upon it.
I acknowledge that, where the Commonwealth, or the federal Attorney‑General, intervene in the proceedings between parties, it is rare for them to be ordered to pay any costs of the parties[216]. However, here the Commonwealth elected not to intervene. In effect, it left to an indigent foreigner, detained in another country under arrangements with it, to find lawyers to defend the validity of Australian federal legislation. Yet, as is now revealed, it was not at arm's length from the parties. It was directly interested in the outcome. It was supporting one party to the contest, namely the respondent. Specifically, it was doing so at first without disclosing that fact to the appellant or to this Court. In effect, the Commonwealth permitted the view that it took of its financial obligations under the MoU with the Government of Nauru to prevail over its duty to the Constitution of the Commonwealth of Australia and the resolution by this Court of a contest about important principles of Australian constitutional law. I regard the conduct of the Commonwealth in this regard as seriously unreasonable. The only way to ensure that it is not repeated is to provide by orders that the appellant, and those who have represented him, are not out of pocket financially. The Government parties and lawyers, who have failed, will not be out of pocket. Why should the appellant and his lawyers, who have succeeded in such circumstances, be so?
Although a costs order could be made against the Commonwealth as a non-party which has been heard, I consider that it is preferable that the record be amended to make the Commonwealth a party to the proceedings for the costs disposition that I favour. This would have the additional merit of reflecting, on the record of this Court, the role that the Commonwealth has played, initially undisclosed to this Court, in funding the respondent's challenge to the competency of the appeal, which challenge has failed.

[138]

The foregoing are my reasons for joining in the orders of the Court, pronounced on 9 December 2004, dismissing the respondent's objection to the competency of the appellant's appeal. To the orders then announced I would add an order, on the appellant's motion for costs, that the Commonwealth of Australia be added as a party to the proceedings. The Commonwealth should be ordered to pay the appellant's costs of the objection to competency on an indemnity basis, with credit for the costs recovered from the respondent.
CALLINAN AND HEYDON JJ. At the time of federation Nauru was a German possession. It was captured by Australian military forces on the outbreak of World War I and was subsequently administered under a mandate of the League of Nations. Its territory was occupied by Japanese military forces during World War II. Afterwards, under a United Nations trusteeship in favour of Australia, New Zealand and the United Kingdom, Australia administered Nauru on behalf of the Governments of those countries. It is unnecessary to say anything more about the events leading up to the independence of the people of Nauru and the establishment of their republic except that Australia had, during the intervening years, interested itself in the affairs of the territory and has benefited from the exploitation of the substantial resource of phosphate found there. In 1968, its people achieved their independence and the country became a sovereign state. Immediately before that event the Commonwealth Parliament enacted the Nauru Independence Act 1967 (Cth), which, by s 4 provides that after 30 January 1968 all Acts of the Commonwealth ceased to extend to the Republic and that Australia was not to exercise legislative, administrative or judicial powers in, or over, Nauru.
Mr Mohammad Arif Ruhani, the appellant, has filed a notice of appeal in this Court against a decision of the Supreme Court of the Republic of Nauru dated 15 June 2004.
The appellant is an Afghan national presently residing in Nauru in supervised premises. He was taken there by Australian sea transport at the end of 2001. Together with some other people, he asserted in proceedings for a writ of habeas corpus brought in the Supreme Court of the Republic of Nauru, that he was being held against his will, and that, although he had neither applied for, nor consented to its issue, a visa permitting him, he would no doubt say, in substance compelling him, to reside in the Republic, has been unlawfully issued to him.
The Supreme Court of Nauru is constituted by one judge only, Connell CJ, and accordingly the appellant's application was heard by him. His Honour's decision was as follows:

[140]

It is against that decision that the appellant seeks to appeal to this Court. He does so, he contends, as of right pursuant to s 44 of the Appeals Act 1972 (Nauru) as amended, and the Nauru (High Court Appeals) Act 1976 (Cth) ("the domestic Act"). The Director of Police who is the responsible supervising officer in the Republic of the appellant, is named as the respondent to the appeal and has objected to the competency of it. The issue before this Court is whether that objection should be sustained.
This Court is not concerned with the validity or otherwise of any Nauruan legislation or with the effect of it. The question before the Court is to be resolved by reference to Australian law, but some attention may need to be given, for the purposes of explanation, to the Nauruan Constitution and to the Appeals Act of that country.
Part V is the part of the Constitution of Nauru which deals with the judicature. It says nothing in terms about the High Court of Australia and contemplates, by Art 57, appeals from judges of the Supreme Court sitting alone, to an appellate court constituted by not fewer than two judges of that Court. Article 57(2) does however state that Parliament may provide that an appeal will lie as prescribed by law from a judgment, decree, order or sentence of the Supreme Court, to a court of another country.
By a treaty done at Nauru on 6 September 1976, the Government of Australia agreed with the Government of the Republic of Nauru that appeals are to lie from the Supreme Court of Nauru to the High Court of Australia in certain cases as of right, and in others, with the leave of the trial judge, or the High Court of Australia. It is not suggested that the appeal that the appellant wishes to pursue in this instance is one which, if the Court has jurisdiction to entertain it, he may not pursue as of right.
One of the articles of the treaty (Art 3) provides that procedural matters in an appeal of this kind are to be governed by the Rules of the High Court. Article 4 provides that pending the determination of an appeal to this Court the judgment, decree, order or sentence to which it relates is to be stayed unless otherwise ordered. The same article provides that the orders of this Court are to be made binding and effective in Nauru.
Under Art 6 either nation may give 90 days notice of an intention to terminate the treaty. No such notice has been given and it is not for this Court to speculate upon the reasons why the Republic chooses to challenge the jurisdiction of this Court rather than to terminate the treaty.
Similarly, it is not for this Court to speculate upon why the Commonwealth chose not to intervene in the proceedings.
The treaty was enacted into and became part of the law of Australia by the domestic Act as a schedule to that Act.
Section 5 of the domestic Act provides as follows:

[152]

The respondent submits that the jurisdiction of this Court is exhaustively prescribed by Ch III of the Constitution: that chapter is incapable of supporting a conferral of a jurisdiction to hear and determine appeals, whether so designated or not, from a foreign country. The Supreme Court of Nauru is nowhere mentioned in Ch III of the Constitution. The entertainment and disposition of an appeal from the Republic of Nauru cannot be an exercise therefore of the judicial power of the Commonwealth.
The jurisdiction that the domestic Act purports to confer is appellate in form and substance. Section 73 of the Constitution confines the appellate jurisdiction of the High Court to a jurisdiction to hear and determine appeals from Justices exercising the original jurisdiction of the Court, from any other federal court or court exercising federal jurisdiction, or from the Supreme Court of any State, or from any other court of any State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, or from the Inter-State Commission as to questions of law only.
The argument continues, that no other head of constitutional power supports the conferral of what is effectively a Nauruan appellate jurisdiction. Section 122 of the Constitution refers only to the Territories of the Commonwealth. It has nothing to say about former territories and independent nations. Nor, it was submitted, could a purported exercise of the external affairs power under s 51(xxix), or the Pacific islands power under s 51(xxx)[217], or the incidental power under s 51(xxxix) of the Constitution extend to the conferral of a judicial power upon the High Court to hear and determine a proceeding instituted in Nauru against an official of Nauru where the enforcement of the determination depended upon the active co-operation of other officials of the Executive of Nauru. It follows that the domestic Act purporting to give effect to the treaty by making provision for the hearing of appeals from Nauru is invalid.
We will return to these submissions later.

[154]

In truth the domestic Act here does give rise to a matter. Its enactment as a federal Act and the need of this Court to pass upon its validity and construe it have that consequence. But what the appellant seeks here is not simply the resolution of that federal matter, but of a further matter, the substantive controversy arising in, and already determined by the Supreme Court of the sovereign state of Nauru. In short there are two matters before the Court one of which the Court has jurisdiction to entertain, and the other which it does not, namely the controversy originating in Nauru and the resolution of which, by binding and enforceable orders, can only be effected in Nauru. What we have said is in no way to deny that a valid and enforceable enactment of the Parliament may have a double function of creating and enforcing rights "in one blow"[219]. Nor, moreover, does it deny that a right or privilege created by the law of another polity may be given the force of federal law as was the position in Hooper v Hooper[220], a case about which more will need to be said later. For present purposes it suffices to say that the adoption by enactment, of legislation of another place, for the purpose of making that legislation binding upon the people of the adopting polity is not what has happened here.
For the most part, the cases cited by the appellant for the second proposition have this in common[221]: they were concerned with matters, whether designated as "appeals" or not, which had been heard in the first instance by boards or tribunals, or other bodies established by the federal polity, which, although apparently intended to, and actually operating in a judicial or quasi-judicial way, were not Ch III courts, or courts of the States or Territories, and were not then exercising, and could not exercise the judicial power of the Commonwealth. The issue therefore in those cases, was not whether the High Court did or did not have jurisdiction to entertain the application for recourse to it, but whether the jurisdiction to be exercised on such recourse was original jurisdiction. On that question the definition or description of the process in question, as an appeal or otherwise, was not decisive. The issue that is presented here is a different issue. It is whether the High Court has any jurisdiction at all to entertain the appellant's claim for relief from this Court. In the cases cited, the issue, as to the true nature of the jurisdiction, only arose for resolution because it was necessary to ascertain the nature of the recourse to this Court in order to lay down the manner of disposition, that is the procedure to be followed in deciding the case and whether an appeal lay to the Full High Court.
Reference need be made to one only of those cases cited to demonstrate that this is so. In Minister of State for the Navy v Rae[222], the ultimate question was as to the amount of compensation which should be paid by the Commonwealth to the owner of a fishing boat which had been acquired under the wartime National Security (General) Regulations for defence purposes. In the first instance the compensation had been fixed by a naval compensation board established by the Commonwealth. The Minister of State for the Navy was dissatisfied with the assessment of the board. He invoked the jurisdiction of this Court (which came to be exercised by Dixon J) under reg 60G of the National Security (General) Regulations which provided as follows:

[164]

Review by the courts in its current form and the need therefore to distinguish it from the process by which the first decision was made, are largely products of the twentieth century as a result, among other things, of increased state involvement in many areas of public welfare. A decision as to the nature of the jurisdiction to be exercised by the courts in undertaking the review became important essentially because it affected the nature of the relief, whether by way of prerogative writs or statutory remedies, that could be granted.
At federation however, the proliferation of administrative and quasi-judicial tribunals lay in the future, although of course the founders were conscious of the need to distinguish in the Constitution, as they did, between executive and judicial power. One of their concerns was to define, with as much precision as possible, the scope of each of federal original and federal appellate jurisdiction and to provide a remedy for unlawful conduct by officers of the new federal polity (s 75(v)). A second concern was to give effect to another autochthonous expedient[227], of the conferring upon a final appellate and constitutional court, of a substantial original jurisdiction as well. A further concern was to ensure that original federal jurisdiction would be exercised in truly federal matters only, without trespass upon State jurisdiction[228]. No concern or intention on the part of the founders is to be discerned in the language of the debates at the Constitutional Conventions, or in Ch III itself, to transmogrify an appeal into an exercise of original jurisdiction. The appellant's submission that the first contact of a "case" with the High Court involves an exercise of original jurisdiction is plainly wrong. An appeal from a Supreme Court of a State, or the Federal Court is exactly that, an appeal, even though the appeal is the first encounter that the case has with the High Court.
It is inapt and wrong to seek to characterize the jurisdiction said to be exercisable here as original jurisdiction for other reasons. Connell CJ in hearing the appellant's application for habeas corpus was sitting as a judge of a court, exercising judicial power. Indeed, the relief sought has been regarded for hundreds of years as uniquely appropriate for the prevention by the courts of excesses and abuses of the Executive and its own administrative bodies and officers. It is the courts which grant the relief against administrative bodies; administrative bodies do not grant it against themselves. We cannot accept that a court invited to reverse the judgment of another court which has dismissed an application for relief of that kind, wherever the court may have sat, would be exercising original jurisdiction. The judgment of the Supreme Court of Nauru cannot be ignored. It would be an affront to all elementary principles of comity to do so. The Supreme Court of Nauru is a real court. The judgment of its Chief Justice is, in every respect, form, substance, application of principle, judicial method, and, it should be emphasized, effect and operation, a judgment of a court, non-compliance with which would be visited in Nauru with all the consequences and sanctions available to any duly established court. To regard an evaluation of that process by a court constituted by several judges of another final court, albeit of a different jurisdiction, proceeding in every relevant respect as if hearing an appeal, as an exercise in original jurisdiction, would be to give effect to a fiction. That the jurisdiction purportedly conferred must be, if anything, appellate, appears most clearly from s 8 of the domestic Act. Courts exercising a jurisdiction to modify a sentence imposed in a criminal jurisdiction, or order a retrial or a new trial, cannot possibly be said to be exercising an original jurisdiction.
Any suggestion that the jurisdiction purportedly exercisable by the Court under the domestic Act is original jurisdiction is comprehensively contradicted by the express language of other parts of it, beginning with its short title which is totally inapt for the exercise of anything but appellate jurisdiction. The words of s 5(1) are "[a]ppeals lie to the High Court ... in cases where the Agreement provides that such appeals are to lie". Each of ss 5(1), (2), (3), 7 and 10(2) and (3) refers in terms to "appeal" or "appeals".
Section 8 further refers to the giving of judgment in the exercise of an appellate jurisdiction, that ought to have been made "in the first instance". And s 9 makes the sort of provision that is necessary and conventional to resolve a difference of opinion in an appellate court.
Every historical and semantic indication is of an intention to confer a genuine appellate jurisdiction. The same is true of the Appeals Act of Nauru. The use of the language of appeal there is plainly deliberate and not a mindless adoption of the nomenclature of earlier enactments. There is not the slightest suggestion in the domestic Act that the jurisdiction intended to be conferred on this Court is of an original kind. Presumably, in the proceeding within original jurisdiction which the majority say is now to take place, the appellant would seek to have the matter entirely reheard as if there had not already been a trial in Nauru despite that the reason for recourse to this Court is that there has been a trial and a judicial decision in Nauru. In some unexpressed way, this Court is now, it is urged, bound to proceed as if such a decision has not been made and no trial has taken place. To proceed in that way would be to proceed in the teeth of the most clearly expressed language possible in the domestic Act. We can no more accept that than we can that the Supreme Court of Nauru is to be treated as a foreign equivalent to an administrative and strictly non-judicial emanation of the federal Parliament.
It is inconceivable that the founders would have contemplated, and sought to make constitutional provision for, the exercise of an appellate or an original jurisdiction of the High Court, over the citizens or subjects of another country, nation or colony, that was not a territory. At federation, the Privy Council was the final avenue of appeal for all of the colonies and territories of the British Empire and had no judicial role to play in relation to foreign countries. It is unthinkable that the founders would have considered it necessary, or desirable, to make provision for the bringing of appeals to the High Court from another dominion or colony of the Empire, let alone from a foreign country. That they did not do so in making the constitutional settlement with the United Kingdom and in drafting the Constitution in the form that they did appears from the form of Ch III itself which is silent on these matters. An expansive interpretation of the Constitution is one thing: an interpretation which would confer upon an Australian court, even the High Court, an appellate jurisdiction over the citizens of, and a sovereign foreign power itself, whether as a result of the making of a treaty or otherwise, would be to go far beyond expansiveness and is much further than we are prepared to go.
How is this Court to proceed henceforth in this matter? It can only do so by embarking on an elaborate fiction that the "appeal" is not an appeal. Why should the parties not give evidence if this is to be an exercise of original jurisdiction? May they rely upon the Nauruan laws of evidence? Must they be proved? Will not the substantive law be the law of Nauru? It is an irony that the latest statement of that, and its application to the facts proved in this case in Nauru, are to be found in the judgment of Connell CJ. Why should this Court take a different view of those when this Court is exercising original jurisdiction? Are there to be pleadings? What about subpoenas? How will this Court be able to enforce the service of and obedience to them in Nauru? The answer to all of these questions must be whatever the Court chooses to invent for neither the Judiciary Act 1903 (Cth), the Rules of Court, nor the Constitution supplies any answers.
The jurisdiction intended to be conferred by the domestic Act is appellate and appellate only. This Court should not construe the treaty to give effect to a result contrary to its language and purpose. Section 73 of the Constitution defines in a clearly exclusive way the appellate jurisdiction of the Court[229]. Not surprisingly its authors made no attempt to embrace within it the legal affairs of any other sovereign foreign nation. It is significant that the opening paragraph of s 73 empowers the Parliament to prescribe exceptions to, and regulations for the exercise of the appellate jurisdiction of the Court, but not additions. It may be, we express no concluded view on this, that the Commonwealth could, if it and Nauru were so minded, establish a special tribunal under various heads of constitutional power[230], to hear Nauruan appeals but that would be a very different measure from the impermissible one attempted here, of vesting Nauruan appellate jurisdiction in the High Court, a Ch III court.
No matter how the jurisdiction purported to be conferred may be characterized there are further reasons why the objection to competency must be upheld. Nauru, by objecting to competency has taken the stance that it is not to be bound by the decision of this Court in this country. Australia is not likely to send a gun boat to the Republic to enforce obedience to a subpoena or a decision of this Court. And, without the real and effective co-operation of Nauru, a decision of this Court will be unenforceable. The remedy sought here is against the executive of a foreign country in a foreign country. As to that, Halsbury's Laws of England puts the matter this way[231]:

[174]

These points should be made about the passage which we have quoted. The reference to the authority of the Commonwealth is no minor matter. Because the events with which the case and the relevant federal enactment were concerned were ones occurring within, and in respect of persons amenable to the authority of, the Commonwealth, whatever decision was made, was immediately enforceable by and within the Commonwealth. To put the matter another way, the Commonwealth was in a position to enforce the immediate right, duty or liability held to exist by the Court. That is not to say that suits may not be entertained by a federal court, or this Court, simply because the decisions and judgments may be in respect of matters having an extra-territorial effect or operation. But no one has suggested in this case that this Court in entertaining an "appeal" from the Republic of Nauru would be exercising some form of Australian extra-territorial jurisdiction, and nor could any such suggestion be made. No state can exercise its powers or authority in the territory of another state or elsewhere outside its territory unless by treaty, convention or international custom, the other state has assented or may be taken to have assented to the exercise of the relevant power or authority. A state may not use physical force in the territory of another state to give effect to asserted rights and may not otherwise impose sanctions to give effect to its laws in another state. Consent is always required, and it may safely be assumed by reason of the stance that the respondent takes here, that it would not assent in any way to the enforcement of a writ of habeas corpus were this Court to entertain this "appeal", allow it, and order that the decision of the Supreme Court of Nauru be set aside and that a writ of habeas corpus issue. In other words, neither this Court nor the Commonwealth has here a capacity to fulfil an essential judicial function referred to in Brandy v Human Rights and Equal Opportunity Commission[240], of enforcing decisions (in Nauru), albeit that the domestic Act purports to confer a right to come to the Court.
In the absence of willingness on the part of the respondent to accept and give effect to an order of this Court, whether in its original or appellate jurisdiction, a decision of this Court would be without efficacy of any kind. Even though courts may and do nowadays make declarations without other ancillary orders, they do not do so unless the declarations will have some real utility or will produce foreseeable consequences. This appears clearly enough from what was said by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission[241]:

[177]

Nothing turns on the exercise, on two occasions, of the appellate jurisdiction of this Court, in Nauruan appeals[247]. Decisions in which the point has not been taken and the different positions not argued, have no more binding force than, for example, the suggestion of McHugh J in argument in Re Wakim; Ex parte McNally[248] that the domestic Act might be invalid.
Another submission of the appellant is that the "appeal" arises under a treaty within the meaning of s 75(i) of the Constitution. We would reject that argument also. Here there are two matters. The first and the substantive one raises the question whether the appellant is entitled to a writ of habeas corpus to be enforced in Nauru. The other is whether the appellant is entitled to come to this Court, effectively to have the domestic Act and the Constitution construed. Self-evidently, the first of the matters does not arise under a treaty. It arises under Nauruan law exclusively. One aspect of the other matter touches upon but does not arise under the treaty. That is the construction of the domestic Act, and although it may arise out of an Act enacted to give effect to the treaty, that is a different matter from something arising under the treaty itself. Even if it did however, it is not a matter which, if resolved in the appellant's favour, would entitle him to relief enforceable under the treaty and in Nauru.
It is not entirely clear whether the appellant was also in some way seeking to contend that the domestic Act was validly made under s 51(xxix), the external affairs power, or s 51(xxx), the Pacific islands power of the Constitution, or a combination of them. Section 51(xxix) has nothing to say about the judicial power for which Ch III makes provision. The other head of power, the Pacific islands power, was conferred for reasons entirely unrelated to judicial power[249] and has nothing to say about it either. As we have mentioned, perhaps the Parliament could legislate for the establishment of an appellate tribunal for the Pacific or part of it, with the active support of nations of the region, but such a tribunal would not and may not be the High Court, or a Ch III court of the Commonwealth.
We would uphold the objection to competency. The appellant should pay the respondent's costs of the objection. For the reasons given by the majority, we agree that the notice of motion filed by the appellant and dated 7 December 2004 should be dismissed, and that the appellant should pay the costs of the motion.

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