Objection to Competency Issue
63 CRS20 raises as a threshold issue whether the appeal to the Full Court is competent. Relying in particular on Wall v The King, CRS20 submits that s 24 of the Federal Court of Australia Act is expressed in general terms and therefore does not confer appellate jurisdiction in respect of the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus).
64 Section 24 of the Federal Court of Australia Act relevantly provides as follows:
24 Appellate jurisdiction
(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; …
…
(1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
(1B) Subsection (1A) is subject to subsection (1C).
(1C) Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:
(a) affecting the liberty of an individual; …
65 The word "judgment" is defined in s 4 as follows (unless the contrary intention appears):
judgment means:
(a) a judgment, decree or order, whether final or interlocutory; or
(b) a sentence;
and includes a conviction.
66 Section 28 of the Federal Court of Australia Act provides in part:
28 Form of judgment on appeal
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; …
67 CRS20's submissions, as set out in his outline of submissions, can be summarised as follows:
(a) In Wall v The King at 250-251, the High Court held that no appeal lies from an order of a competent court for the issue of a writ of habeas corpus discharging a detained person from custody, unless a right of appeal is specifically given by the legislature (the preclusion principle). That principle accords with history. The writ of habeas corpus is of "immemorial antiquity" (Secretary of State for Home Affairs v O'Brien [1923] AC 603 (O'Brien) at 609) and "if the writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any superior Court": O'Brien at 609-610.
(b) The rationale for the preclusion principle is, as stated in Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 523 (Brennan J):
The law of this country is very jealous of any infringement of personal liberty (Cox v Hakes) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right …
(Footnote omitted.)
(c) The preclusion principle applies because this is an appeal wholly pursuant to statute under s 24 of the Federal Court of Australia Act (as opposed to the appellate jurisdiction under s 73 of the Constitution).
(d) In Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 (Thompson v Mastertouch) at 412-414, the Full Federal Court held that the generality and breadth of s 24 did not specifically abrogate hallowed common law principles, and that s 24 did not allow an appeal from an acquittal. Deane J reasoned by analogy with the absence of any appeal from release upon the issue of habeas corpus: at 413-414. In Davern v Messel [1984] HCA 34; 155 CLR 21 at 32-33, 46-54 and 63, the High Court approved Thompson.
(e) Preclusion of appeal in the absence of an express statutory provision is consistent with the history of habeas corpus as "perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement": O'Brien at 609. This is a history which the Australian colonies and then the States and Commonwealth share, without alteration except by express enactment.
(f) Further, the preclusion principle is a means by which the Court acts as a safeguard of individual liberty in accordance with its function under the Constitution (Minister for Home Affairs v Benbrika [2021] HCA 4; 272 CLR 68 at [67]), and as part of the law and practice of habeas corpus, forms part of one of the defining characteristics of the supervisory role of all superior Courts: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [98]-[99]. Thus, at the time of Federation, the preclusion of appeal was a recognised feature of habeas corpus, then-recently restated by the House of Lords in Cox v Hakes (1890) 15 App Cas 506.
(g) If Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 and Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43 (AJL20) are said to stand against the preclusion principle, they can be distinguished or should be treated as decided per incuriam. While both cases were appeals pursuant to s 24 of the Federal Court of Australia Act, in neither case was the issue of competence referred to in argument or decision. AJL20 was removed into the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth), but against two separate decisions, including one for damages for false imprisonment.
(h) Nothing turns on the primary judge using modern, plain English in his order 1 - "[t]he applicant be released from detention forthwith" - in place of the Latin phrase. This is so for reasons including that "[t]he Court's consideration should be confined to the proposals for relief put forward by the [moving party]" (McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152; 287 FCR 364 at [85], with agreement at [1] and [3]) and CRS20 sought the writ of habeas corpus. The preclusion principle is concerned with the substance, not the form, of the order restoring liberty.
68 We will now consider the main cases relied on by CRS20.
69 The background facts of Wall v The King, decided by the High Court in 1927, were as follows. On 25 May 1926, Alfred Wall (the Informant) swore informations charging King Won and Wah On respectively with being prohibited immigrants within the meaning of the Immigration Act 1901-1925 (Cth). On 26 May, the informations came on for hearing at Darwin before a Special Magistrate; the matters were adjourned until 28 July and the defendants were discharged on recognisances to appear at the adjourned hearing. On 5 July, the sureties took the defendants before the Special Magistrate, who discharged the sureties and recognisances and committed the defendants to the custody of the keeper of the Darwin Gaol until 28 July. On 16 July, applications were made to the Supreme Court of the Northern Territory for orders nisi for the issue of a writ of habeas corpus directed to the keeper of the gaol to have the body of each defendant brought before the Supreme Court. On the same day, the orders nisi were issued. On 26 July, the orders nisi came on for hearing before Roberts J, who made them absolute and ordered the discharge from custody of both defendants. The reason stated by Roberts J was that neither of the defendants was an immigrant within the meaning of the Immigration Act 1901-1925 (Cth) and therefore the Special Magistrate had no jurisdiction to try them or to hold them pending trial. From the decision in each case, the Informant, by leave, appealed to the High Court. King Won and Wah On (the respondents in the High Court), by way of preliminary objection, contended that an appeal did not lie to the High Court from such an order.
70 The key relevant provision was s 21 of the Supreme Court Ordinance 1911-1922 (NT), which was in the following terms (see the judgment of Higgins J at 262):
The Full Court of the High Court of Australia, constituted by at least two Judges, may grant leave to appeal to the High Court of Australia from any conviction, sentence, judgment, decree, or order of the Supreme Court of the Northern Territory, including any order or direction made by the Judge of the Northern Territory whether in Chambers or in Court and including also any refusal of such Judge to make any order.
71 The High Court, by a majority (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Isaacs and Higgins JJ dissenting), upheld the preliminary objection. The Court therefore rescinded leave to appeal and struck out the appeals. A joint judgment was delivered by the majority. After setting out the background facts, the majority stated (at 250):
An appeal is now brought to this Court from the order of the Supreme Court, and the respondent, by way of preliminary objection, has argued that an appeal does not lie to this Court from such an order. A recent case in the House of Lords, Secretary of State for Home Affairs v O'Brien [[1923] AC 603], in which the previous authorities are cited and examined, establishes the proposition that, according to the law of England, no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature, and that the Courts should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose. By virtue of the Supreme Court Ordinance 1911, as amended by Ordinance No. 10 of 1922, appeal from the Supreme Court of the Northern Territory to this Court will lie by leave of this Court from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory, whether in Chambers or in Court, including also any refusal of such Judge to make any order (Porter v The King [(1926) 37 CLR 432]). Applying to the present case the rule laid down by the House of Lords, we think we are bound to say, in the words of the Earl of Birkenhead LC, that an enactment couched in terms so general does not avail to deprive the subject of an ancient and universally recognized constitutional right.
(Emphasis added.)
72 The majority then rejected an argument put forward by the Informant, relying on a Privy Council decision (United States of America v Gaynor [1905] AC 128), that the rule did not exist. In rejecting that argument, the majority noted that the Privy Council had given leave to appeal and no report had been provided of the proceedings in which leave was given. The majority noted that, on the appeal itself, no argument was made with respect to the validity of the appeal. The majority also stated (at 250):
It may very well be too, that the right of appeal to the Privy Council by special leave is by its very nature outside the rule laid down in O'Brien's Case, but it is unnecessary to discuss that question further.
73 The majority next referred to an argument put forward by the Informant based on the judgment of the High Court in Attorney-General (Commonwealth) v Ah Sheung [1906] HCA 44; 4 CLR 949 (Ah Sheung). In that case, the High Court accepted that it had jurisdiction (pursuant to s 73 of the Constitution) to hear an appeal from an order of a State Supreme Court discharging a person from custody on the return of a writ of habeas corpus. In Ah Sheung, the High Court (in a joint judgment of the Court delivered by Griffith CJ) stated (at 951):
We have no doubt as to the jurisdiction of the High Court to entertain this appeal. The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament, and no exception is made by the Judiciary Act in cases of habeas corpus.
74 In Wall v The King, the majority distinguished Ah Sheung on the following basis (at 250-251):
In the next place the appellant relied on a case in this Court, Attorney-General v Ah Sheung [(1906) 4 CLR 949]. This case was followed without argument in Lloyd v Wallach [(1915) 20 CLR 299], and approved of by our brother Isaacs in subsequent cases, but that approval rested on the nature and function of the Constitution of the Commonwealth. It is enough to say that Ah Sheung's Case dealt with the judicial power of this Court under Chapter III of the Constitution, and with that power only.
(Emphasis added.)
75 The majority then dealt with an alternative argument of the Informant that, in this case, the Supreme Court of the Northern Territory was not a competent court within the meaning of the rule. The majority rejected this argument (at 251-252). In summary, the majority held that the Supreme Court of the Northern Territory had authority to make the order that it made; it had jurisdiction to come to a right or wrong conclusion on the questions submitted to it for determination.
76 In dissent, Isaacs J accepted the general rule relied on by the majority, stating (at 253):
Constitutional considerations and principles are of the utmost relevance in construing legislative instruments and, when these are taken into account and applied to the general language of sec 21 [of the Supreme Court Ordinance 1911-1922 (NT)], I am constrained to follow the precedents of Cox v Hakes [(1890) 15 App Cas 506] and O'Brien's Case [[1923] AC 603] by holding that the general words of sec 21 do not include an appeal from the determination of a competent Court upon habeas that a person was entitled to be liberated. I refer to O'Brien's Case, per Lord Birkenhead [at pp 609, 610], per Lord Dunedin [at pp 620, 621], per Lord Shaw [at pp 640, 641]; together with the various passages adopted from Cox v Hakes.
77 However, Isaacs J held that the Supreme Court of the Northern Territory was not a "competent Court" (within the meaning of the rule) to make the order that it made. This was because a statute conferred on the Darwin Summary Jurisdiction Court exclusive jurisdiction to determine whether the respondents were prohibited immigrants (at 252-253, 254). Isaacs J would have overruled the preliminary objection in each case.
78 Higgins J, also in dissent, considered that the High Court had jurisdiction to entertain the appeal pursuant to s 73 of the Constitution on the basis that the Supreme Court of the Northern Territory was exercising federal jurisdiction (at 261-262). Higgins J also held that, even if the High Court were obliged to follow the principle expressed by the House of Lords in O'Brien and Cox v Hakes, the order made by the Judge of the Supreme Court of the Northern Territory was made without jurisdiction (at 263). Higgins J would have ordered that the appeal be allowed and the order set aside.
79 The following observations may be made about Wall v The King:
(a) While the majority (and Isaacs J) affirmed the principle expressed by the House of Lords in O'Brien, the question to be determined in any given case is ultimately one of statutory construction. The conclusion reached with respect to s 21 of the Supreme Court Ordinance 1911-1922 (NT) will not necessarily apply to other appeal provisions, having regard to the text of those provisions read in context.
(b) The majority in Wall v The King did not question, and indeed accepted the correctness of, Ah Sheung, in which the High Court held that the High Court had jurisdiction under s 73 of the Constitution to hear an appeal from an order of a State Supreme Court discharging a person from custody on return of a writ of habeas corpus. Lloyd v Wallach [1915] HCA 60; 20 CLR 299 is another example of the High Court hearing such an appeal, albeit without express consideration of the issue of jurisdiction. Thus, in the Australian context, appeals of this nature were not non-existent; they could be brought to the High Court under s 73 of the Constitution.
80 We now turn to Thompson v Mastertouch, a decision of the Full Court of this Court (Smithers, Riley and Deane JJ) handed down in 1978. This case involved the criminal law rather than the issue of a writ of habeas corpus. On the information of the appellant (Thompson), who was an officer of the Trade Practices Commission, the respondent (Mastertouch) was charged with an offence under s 79 of the Trade Practices Act 1974 (Cth). The charge was heard by Franki J in the exercise of the Court's original jurisdiction. His Honour found that Thompson had failed to prove the offence and dismissed the information. Thompson purported to appeal as of right from the judgment of Franki J. At the commencement of the appeal, Mastertouch contended that the Full Court lacked jurisdiction. Full argument then took place on the question of jurisdiction. At the conclusion of argument on that question, the Full Court indicated that the Court had reached the conclusion that the objection to jurisdiction was well based, and therefore the Court did not wish to hear argument on the merits of the appeal. The Court indicated that it would subsequently publish reasons for its decision.
81 The main judgment was delivered by Deane J, with whose reasons Smithers J and Riley J agreed. Deane J recorded (at 400) that it was common ground that the only potential source of jurisdiction was s 24 of the Federal Court of Australia Act. Section 24(1)(a) was in substantially the same terms as in force today (set out above). Deane J summarised Mastertouch's contention at 401:
In support of its submission that the appeal was not competent, the respondent sought to rely on what it claimed to be a well-established principle of the common law, namely, that there should be no appeal from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits. It was submitted that the alleged principle was fundamental to the administration of criminal justice and that legislation should only be construed as involving a departure from it if, and to the extent that, such a departure was the result of express and unambiguous words.
82 After considering English and Irish cases that supported the general principle of there being no appeal from a judgment of acquittal, Deane J examined the Australian context, including decisions of the High Court in relation to s 73 of the Constitution. On the basis of that survey, it was not possible, in Australia, to accord the principle of there being no appeal from a judgment of acquittal the universality expressed in some of the English cases (at 407). Deane J stated the applicable principle of construction in the following terms (at 408-409):
It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. This principle has been recognized in many cases including cases in the High Court of Australia (see, for example, Potter v Minahan; Bishop v Chung Bros; Commonwealth and the Postmaster-General v Progress Advertising & Press Agency Co Pty Ltd; Wall v The King; Ex parte King Won and Wah On; Melbourne Corporation v Barry; and see generally Maxwell on Interpretation of Statutes, 12th ed, p 116ff., and the cases there cited).
(Footnotes omitted.)
83 Today, this principle is often referred to as the "principle of legality": see, eg, Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [19] per Gleeson CJ; Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [21] per Gleeson CJ; Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [29] per French CJ, at [171]-[173] per Kiefel J, at [307]-[312] per Gageler and Keane JJ.
84 In Thompson v Mastertouch, Deane J considered that s 24 of the Federal Court of Australia Act was of a different character to s 73 of the Constitution, and therefore the same approach was not applicable (at 411). Deane J stated that, moreover, the word "all", which appears before the words "judgments, decrees, orders and sentences" in s 73, and emphasises the unrestricted nature of the jurisdiction conferred by s 73, finds no corresponding place in s 24.
85 At 412, Deane J expressed his conclusion that, on their proper construction, the provisions of s 24(1)(a) and (b) of the Federal Court of Australia Act did not confer jurisdiction to hear, or authority to institute, an appeal against a judgment of acquittal. The following passage encapsulates his Honour's core reasoning (at 412-413):
An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. There is no relevant legislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. As has been mentioned, it is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. Applying that principle of construction to the present case, I consider that the conclusion is unavoidable that the general words used in s 24 (1)(a) and (b) to confer jurisdiction "to hear and determine appeals" do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended.
(Emphasis added.)
86 After that passage, Deane J referred to Wall v The King, stating that "[t]he considerations relevant to the determination of the present matter are, in my view, essentially the same as those recognized in the following extract from the judgment of Knox CJ, [Gavan] Duffy, Powers, Rich and Starke JJ in Wall v The King; Ex parte King Won and Wah On". Deane J then set out a passage from the majority judgment in Wall v The King at 250 (set out earlier in these reasons). Deane J then stated:
The common law principle and the common law right under consideration in the present matter are at least as well established in Australia as the principle and right in question in that case. Indeed, as has been seen, Dixon CJ seemed to assimilate the two principles to some extent when, in The King v Wilkes, he treated Lloyd v Wallach and O'Brien's case as being in point to the principle of no appeal from a judgment of acquittal. The words of s 24 of the Federal Court of Australia Act are every bit as general and lacking in express reference as the words of s 21 of the Supreme Court Ordinance (1911-1922) (NT) there under consideration. The decision of the High Court in that case clearly supports the conclusion that the general words of s 24 of the Federal Court of Australia Act confer neither jurisdiction upon this Court to hear, nor authority upon the appellant to institute, this appeal.
(Footnotes omitted; emphasis added.)
87 We make the following observations about Thompson v Mastertouch:
(a) The issue in the case (whether a right of appeal lay from a judgment of acquittal in a criminal proceeding) was different from the issue in the present case, which concerns habeas corpus. Accordingly, the case is not binding in relation to the present issue.
(b) Deane J relied on the decision of the High Court in Wall v The King in support of his conclusion. Evidently, Deane J considered that the holding in Wall v The King would apply equally to s 24 of the Federal Court of Australia Act. However, there was no issue in Thompson v Mastertouch as to whether the appellate jurisdiction of this Court under s 24 of the Federal Court of Australia Act encompasses an appeal from an order discharging a person on the return of a writ of habeas corpus. Unsurprisingly, in these circumstances, the judgment of Deane J contains no detailed consideration of the merits of that issue. It is unclear whether the parties made submissions on that issue. In light of these matters, the judgment is of limited persuasive value in relation to the issue of present concern.
(c) While Thompson v Mastertouch was approved by the High Court in Davern v Messel by Gibbs CJ (with whom Wilson and Dawson JJ agreed) at 32-33 and by Mason and Brennan JJ at 55-56, that approval concerned the question whether there was a right of appeal against a judgment of acquittal in criminal proceedings; it did not relate to the observations made in Thompson v Mastertouch about habeas corpus.
88 In our view, having regard to general principles of statutory construction including the principle of legality, and the cases discussed above, the appellate jurisdiction of this Court conferred by s 24 of the Federal Court of Australia Act is sufficiently wide to encompass an appeal from the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus).
89 There is no real issue that, on its face, the words of the section are sufficient to encompass such an appeal. The word "judgments" is broadly defined as meaning (among other things) "a judgment, decree or order, whether final or interlocutory". The real issue is whether the principle in Wall v The King (which may be an aspect of the principle of legality) applies, such that the general words of s 24 do not confer jurisdiction in respect of an appeal from the issue of a writ of habeas corpus discharging a person from custody.
90 The principle in Wall v The King may be stated as: a general conferral of appellate jurisdiction is usually insufficient to confer jurisdiction to entertain an appeal in respect of the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus). However, the question is ultimately one of statutory construction having regard to the text and context of the provision under consideration. Here, the context of s 24 of the Federal Court of Australia Act includes s 33 of that Act, which provides in part:
33 Appeals to High Court
(1) The jurisdiction of the High Court to hear and determine appeals from judgments of the Court, whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section.
(2) Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge exercising the original jurisdiction of the Court.
(3) Except as otherwise provided by another Act, an appeal shall not be brought from a judgment of a Full Court of the Court unless the High Court gives special leave to appeal.
(4) An appeal must not be brought from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court unless the High Court gives special leave to appeal.
(4A) An appeal must not be brought to the High Court from a judgment of a Full Court of the Court exercising the original jurisdiction of the Court if the judgment is:
(a) a determination of an application of the kind mentioned in subsection 20(3); or
(b) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) adjourn or expedite a hearing;
(iii) vacate a hearing date.
(4B) An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction if the judgment is:
(a) a determination of an application of the kind mentioned in subsection 25(2); or
(c) an order under section 29; or
(d) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) grant leave to defend a proceeding;
(iii) reinstate an appeal that was taken to have been abandoned or dismissed;
(iv) extend the time for making an application for leave to appeal;
(v) adjourn or expedite a hearing;
(vi) vacate a hearing date.
…
(Emphasis added.)
91 The reference in s 33(1) to "exceptions" and "regulations" picks up the language of s 73 of the Constitution. The effect of s 33(2) is that an appeal cannot be brought to the High Court from an order of a single Judge of this Court in the exercise of original jurisdiction, including the issue of a writ of habeas corpus discharging a person from custody. If an appeal to a Full Court of this Court is available under s 24, then an appeal from the judgment of the Full Court could be brought (with special leave) to the High Court. However, if an appeal to a Full Court is not available, then the order of the single judge could not be the subject of an appeal to the High Court. In our view, in a context where previously (as we have seen) appeals from such orders of other courts exercising original jurisdiction could be the subject of appeals to the High Court, it would be surprising if Parliament intended that orders of the same kind could not, when made by the Federal Court, be the subject of an appeal to the High Court. This factor militates in favour of a construction of s 24 that encompasses appeals from orders of a single Judge for the issue of a writ of habeas corpus discharging a person from custody. It also provides a basis to distinguish Wall v The King; the statutory context in the present case is different.
92 Further, if CRS20's construction were correct, there could be no scrutiny by a Full Court of important questions of statutory construction that may arise in a case in which a single Judge has made an order for the issue of a writ of habeas corpus discharging a person. (The present case is an example of the important issues of statutory construction that may arise.) It is unlikely that this was intended by Parliament.
93 The construction that we favour coheres with the position that s 23 of the Federal Court of Australia Act is the source of the power both to issue a writ of habeas corpus and to make an order in the nature of habeas corpus: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 (McHugh (No 1)) at [20]-[23] per Allsop CJ, [75] per Besanko J, [187], [199]-[201], [211]-[214] per Mortimer J. That being so, it is natural that an appeal against habeas corpus would be subject to the same principles that govern appeals against other orders made under s 23.
94 While not necessary for our decision, we note that this conclusion is consistent with the fact that in Ruddock v Vadarlis a Full Court of this Court (Black CJ, Beaumont and French JJ) heard (and allowed) an appeal from an order of a single Judge in the nature of habeas corpus discharging persons from custody. While the case is not an authority on the issue under present consideration (because no objection was made to the competency of the Full Court to hear the appeal), it is noteworthy that the Full Court (comprising the then Chief Justice of the Court and a future Chief Justice of the High Court of Australia) heard (and allowed) the appeal without referring in the judgments to any issue about the jurisdiction of the Full Court to entertain the appeal. Contrary to a submission made by CRS20, we do not consider the fact that North J at first instance stayed his orders pending the determination of the appeal to provide a point of distinction.
95 We also note that the Secretary submitted that it would be problematic if there were no appeal from an order of a single Judge to issue a writ of habeas corpus discharging a person from custody, but the judgment still operated as an issue estoppel between the parties in subsequent proceedings (eg, a proceeding in which damages were sought for false imprisonment). We do not consider it necessary to determine this point in order to resolve the issue of construction.
96 For these reasons, we reject the objection to the competency of the appeal.