Re Bolton; Ex parte Beane
162 CLR 51470 ALR 225
(Judgment by: BRENNAN J)
BOLTON;
Ex parte BEANE
Judges:
Mason C.J.
Wilson J.
Brennan J.Deane J.
Dawson J.
Toohey J.
Gaudron J.
Subject References:
Constitutional law
Defence and war
Extradition
International law
Prerogative writs
Statutory interpretation
Judgment date: 9 April 1987
Canberra
Judgment by:
BRENNAN J
Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force. This is such a case and the common law of habeas corpus and the Habeas Corpus Act 1679 (31 Car.II c.2) as extended by the Habeas Corpus Act 1816 (56 Geo.III c.100) are such laws. Section 11 (originally s 12) of the Habeas Corpus Act 1679 prohibited under the severest penalties the sending of inhabitants or residents of England as prisoners into foreign places (per Scrutton L.J. in R. v. Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 361 , at p 383) except in cases falling within certain provisoes in the Act: Colonel Lundy's Case (1690) 2 Vent 314 (86 ER 460). This provision remedied a defect in the writ of habeas corpus which Clarendon had been accused of exploiting by sending persons to "remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law": Holdsworth, A History of English Law, 3rd ed. (1966 reprint), vol IX, pp.116-117. Although a view persisted until 1815 that there was a prerogative power to arrest and surrender aliens to foreign states (Shearer, Extradition in International Law, (1971), p 24), that view has long since been rejected: see Clarke upon Extradition, 4th ed. (1903), pp 126-128; R. v. King (1860) 1 QSCR 1; Brown v. Lizars (1905) 2 CLR 837 .
It is established that statutory authority is necessary for the surrender of any person to another country and to provide for his custody and conveyance: per Barwick C.J. in Barton v. The Commonwealth (1974) 131 CLR 477 , at p 483. And thus the laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities on a mere executive warrant. Lord Denning M.R. in Reg. v. Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 , at p 299, stated the common law in terms which I would respectfully adopt:
" ... every person coming from abroad, as soon as he sets foot lawfully in this country, is free; and, so long as he commits no offence here, he is not to be arrested or detained for any offence that he may have committed in some other country. If any attempt were made to arrest him in order to surrender him to that other country, he would at once be entitled to be set free. The writ of habeas corpus is available to him for the purpose. In the absence of an extradition treaty, it is no answer for the Crown, or any officer of the Crown, to say that he wishes to send him off to another country to meet a charge there."
The laws relating to the return and deportation of prohibited immigrants and the deportation of aliens and laws relating to extradition for trial on criminal charges qualify the general freedom from arrest and surrender to foreign authorities but, unless a provision of such an exceptional law applies, the common law and the Habeas Corpus Act 1679 deny to the Executive governments of this country, whatever inducement a foreign government may offer or press, any power to arrest and surrender an Australian resident into the custody of foreign authorities. Unless there be overriding statutory authority for the arrest and surrender of an Australian resident, he is entitled to a writ of habeas corpus to obtain his freedom here: Ex parte Besset [1844] 6 QB 481 (115 ER 180). To justify such an arrest and surrender, there must be a statute or subordinate legislation (Lloyd v. Wallach (1915) 20 CLR 299 ; Ex parte Walsh (1942) Arg LR 359) enacted in exercise of an available legislative power (Australian Communist Party v. The Commonwealth (1951) 83 CLR 1 , at p 195) which abrogates or suspends the right to habeas corpus: R v. Clift; Ex parte P (1941) SASR 41, at p 46. The question in this case is whether the prosecutor's right to a writ of habeas corpus has been abrogated, in the particular circumstances of the case, by the provisions of Pt IXA of the Defence Act 1903 (Cth) which were inserted by s 8 of the Defence Acts Amendment Act 1981 (Cth) ("the 1981 Act") and which came into operation on 15 August 1983.
The prosecutor, who is lawfully in Australia and who is an alien to whom the status of a permanent resident has been granted, was arrested for the purpose of surrendering him to the military authorities of the United States of America. It is alleged against him that in Vietnam in February 1970 he went absent without leave from the Company of the United States Marine Corps of which he was a member. The authority for his arrest is said to flow from Pt IXA which depends for its operation on the making of a valid request for the prosecutor's arrest. A request was made by an American military officer for the prosecutor's arrest on or about 22 November 1982 and the validity of that request must be tested by reference to the law in force at the time, that is, by reference to Pt III of the Defence (Visiting Forces) Act 1963 (Cth) ("the 1963 Act"). Section 19(1) of the 1963 Act provided for the issue of a warrant, on a written request of the designated authority of certain countries (which included the United States) to arrest "a member of the forces of that country who is a deserter or an absentee". Section 20 provided for the detention of the arrested person. Section 21(1) required that, unless he was released by direction of an authorized officer or the Minister the arrested person should be "delivered into the custody of such service authority of the country to which he belongs and at such place in Australia as are specified in the warrant or otherwise directed by the authorized officer".
The law of this country is very jealous of any infringement of personal liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) 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: R. v. Cannon Row Police Station (Inspector) (1922) 91 LJKB 98, at p 106. In construing a statute which is said to abrogate s 11 of the Habeas Corpus Act 1679, there are especially powerful considerations in favour of strict construction, for habeas corpus is not an effective remedy once the person arrested is taken out of the jurisdiction: see the discussion by Scrutton L.J. in R. v. Secretary of State for Home Affairs; Ex parte O'Brien, at pp 391-392, and the case of Lamirande (1866), discussed in 2 Lower Canada Law Journal 73 and in Clarke upon Extradition, appendix p. ccccxcv. If a statute is to be construed as making a lawful resident of this country liable to arrest and surrender in custody to a foreign country even though no breach of any law has been committed in this country, no tribunal in this country has jurisdiction to try that person for any breach of law committed elsewhere and no court of this country can ensure that he is brought to trial in the country to which he is surrendered, it is reasonable to expect that Parliament will express that intention with unmistakable clarity. The Constitution of the Australian Commonwealth does not contain broad declarations of individual rights and freedoms which deny legislative power to the Parliament, but the courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework. It is presumed that that is the intention of Parliament, though the courts acknowledge that the balance between the public interest and individual freedom is struck not by the courts but by the representatives of the people in Parliament. Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation. Such an intention is not so expressed by Pt III of the 1963 Act.
Part III, it must be remembered, is not applied to particular countries in performance of treaty obligations with those countries. It is applied by executive regulation (s 6(1)) to such countries as the Executive government thinks appropriate. In fact, Pt III was applied to some countries which have not always demonstrated the sensitivity to individual rights which we expect of our own legal system. If Pt III were construed as applying to cases of desertion or going absent without leave wherever occurring, the freedom of persons allegedly subject to that Part who are lawfully resident in Australia and who are entitled to protection of Australian law would have been open to grievous impairment. Unless the terms of Pt III were so intractable as to permit of no more limited operation, the question would arise whether, in a time of peace, a law which so seriously eroded the right to freedom of a lawful resident of this country, which was not enacted to give effect to an extradition treaty and which failed to ensure that the person to be surrendered would ever be tried, could be supported as a valid exercise of the legislative power of the Commonwealth. However, the question of constitutional validity may be passed over if Pt III is construed to give it a narrower operation than that for which the respondent contends.
Part II of the 1963 Act makes provision, inter alia, for the exercise within Australia by the service tribunals and service authorities of a country to which s 8 of the Act applies of jurisdiction over members of a visiting force of that country. The term "visiting force" is defined by s 5(1) of the Act to mean:
"any body, contingent or detachment of the forces of a country that is for the time being present in Australia by arrangement with the Minister."
Part II also requires Australian courts to abstain from trying certain classes of offences committed in Australia by a member of a visiting force and authorizes the execution within Australia of the sentences of a competent service tribunal of a foreign country (except for the carrying out of a sentence of death). If the provisions of Pt III were construed so that they applied only to deserters or to absentees without leave from a visiting force in Australia, who are amenable to the jurisdiction within Australia of the service tribunals or service authorities of the country to which the visiting force belongs and who may be delivered into the custody of the service authorities of that country in Australia, Pt III would operate as an appropriate complement to Pt II. Part III must be intended to operate at least as a complement to Pt II: s 19(1) must surely permit an Australian "authorized officer" (see s 19(2)) to answer a request by a "designated authority" of a foreign country for assistance in the apprehension of deserters or absentees without leave from that country's visiting force in Australia. If Pt III were construed as operating only as a complement to Pt II, the service tribunals and service authorities of the country to which the visiting force belongs would have been authorized to convey an arrested member of a visiting force of that country out of Australia in exercise of the jurisdiction which they might lawfully assert over him here by reason of s 8(1) of the 1963 Act (cf. R. v. Suddis (1801) 1 East 306 (102 ER 119); R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 ) but, subject to the exercise of that jurisdiction, the protection afforded by the common law of this country and by s 11 of the Habeas Corpus Act 1679 would not have been impaired.
The provisions of s 5(2) of the 1963 Act are said to stand against such a limited construction of Pt III. That sub-section provides:
"A reference in this Act to a member of a visiting force shall be read as a reference to a person who, in accordance with the law of the country to which the visiting force belongs, is serving as a member of the visiting force."
Is a deserter or an absentee without leave from a visiting force "serving as a member of the visiting force" so as to be amenable to the jurisdiction of the service authorities and tribunals of that force? It would be curious if he were not a "member of a visiting force" and, on account of that status, subject to the jurisdiction of its service tribunals and authorities: see s 8(2). It would be anomalous if those tribunals had jurisdiction over a member of a visiting force who had committed a capital offence but had no jurisdiction over a member who went absent without leave. I do not think that s 5(2) produces that result. A member of a visiting military force does not cease to be a member of that force by absenting himself from his duties or by deserting: he remains a member of the force because he cannot discharge himself from service. I apprehend that to be the military law of the United States (Winthrop, Military Law and Precedents, eds Kavass and Sprudzs (1979), pp 548-549) as it is the law in Australia: see The Commonwealth v. Quince (1944) 68 CLR 227 , at p 234. The rule that a serving soldier cannot discharge himself from service would seem to be a necessary rule for the maintenance of a disciplined military force. The phrase "is serving as a member" in s 5(2) should therefore be understood as referring not to the actual performance of duty but to the status of a person who is obliged to perform duty. Thus construed, Pts II and III are harmonious.
In Reg. v. Peterson; Ex parte Hartmann (1968) 14 FLR 1 ; (1969) VR 417, Newton J. came to the conclusion that Pt III was intended to apply only to persons who deserted or went absent without leave from visiting forces. His Honour said (at p 3; pp.418-419):
"A much more powerful, and in my view a decisive, indication that Pt.III is confined to deserters and absentees from a visiting force is that by s 8 the jurisdiction within Australia of service authorities of another country is confined to jurisdiction over members of a visiting force of that other country, and also (which is not relevant to the present case) over certain other persons who are subject to that country's service law, otherwise than as members of its forces: see especially s 8(1), (2) and (6). Hence if a person (such as the present applicant) who was a member of another country's armed forces, but who was not a member of a visiting force, was delivered into the custody in Australia of a service authority of his country, that service authority would have no jurisdiction over him in Australia nor any right to detain him in Australia against his will."
To rebut this reasoning, counsel for the respondent submitted that when Pt III was in operation, personnel of a foreign military service could have been permitted by the Executive Government of the Commonwealth to enter Australian territory to take into their custody here and to transport out of Australia a person who, outside Australia, had deserted or gone absent without leave from the forces of that country and who had been arrested under Pt III. It was submitted that the foreign military personnel would have been immune from the jurisdiction of Australian courts and that no authority under Australian law was necessary to permit the involuntary conveyance out of Australia of a person surrendered into their custody.
There are two obstacles in the way of this submission. In the first place, the jurisdiction which the service tribunals and service authorities of a foreign country may exercise against a person in Australia appears to be exhaustively defined for the purposes of our law by s 8 of the 1963 Act. A service authority of a foreign country to which that section applies can assert no jurisdiction over an Australian resident who is not a member of "any visiting force of that country": s 8(2). Secondly, although the Executive government may exercise its discretion generally to permit foreign military personnel to enter Australia, its prerogative power has been confined by the Habeas Corpus Act 1679. If the Executive government cannot arrest and send an Australian resident in custody to a foreign country, it cannot permit the entry of foreign military personnel to do so. Nor can the Executive government permit the entry of foreign military personnel on terms that they will be immune from liability under Australian law if they do what the Executive government is forbidden to do. In Chow Hung Ching v . The King (1948) 77 CLR 449 , at p 482, Dixon J. expressed a surprisingly wide view as to the immunity of visiting military personnel from the jurisdiction of local courts but, whatever the width of the immunity may be, it does not extend so far as to permit the abduction of a person who is lawfully living in this country subject to and under the protection of its laws. Unless Pt III of the 1963 Act impliedly authorizes the entry of foreign military personnel for the purpose of conveying such an Australian resident out of this country against his will - and that implication should not be made in the absence of compelling language - there is no other source of power possessed by the Executive which might be exercised to permit foreign military personnel to enter Australia for that purpose. If the courts of this country were powerless to protect such an Australian resident against his involuntary conveyance out of Australia by foreign military personnel, Australian sovereignty would be sorely diminished. I would respectfully agree with the reasoning of Newton J. in the passage cited.
Ex parte Hartmann was distinguished in Reg. v. Thames Magistrate; Ex parte Brindle (1975) 1 WLR 1400 ; [1975] 3 All ER 71 and 941, where an English statute, similar to but not identical with the Australian statute, was held to apply to an American serviceman who had deserted from his unit in West Germany and had gone to live in England. Roskill L.J., while acknowledging that a matter involving the liberty of the individual must be looked at "carefully and strictly", construed the English statute in this way (at p 1411; p 945):
"It seems to me plain that the purpose of this section is to enable forces to which the Act applies to have control over deserters and absentees without leave from those forces, irrespective of where those persons were at the time they deserted or went absent. What is to happen to those deserters or absentees after they are taken into custody is a matter for those forces and not for the courts of this country. This is the underlying purpose of this Part of this Act."
No doubt Pt III of the 1963 Act might be construed in the same way, but that is not the construction I would prefer. Assistance in the maintenance of the discipline of foreign forces outside Australia is not a matter of treaty obligation undertaken by this country. There is no reason why Pt III should be given a wide construction in order to provide that assistance when a wide construction would impair the immunity from arrest and surrender to a foreign country which is so fundamental to the freedom of our society. I am therefore in substantial agreement with the conclusion of Newton J. in Ex parte Hartmann though his Honour's reasons and mine do not wholly coincide.
When the 1981 Act repealed Pt III of the 1963 Act (see s 15 of the 1981 Act) and inserted into the Defence Act provisions similar to those repealed - Pt IXA of the Defence Act - an attempt was made to broaden the narrow operation which Ex parte Hartmann attributed to Pt III. In particular, s 116E(4) of the Defence Act provides that Div.3 of Pt IXA, which relates to absentees without leave, applies in relation to the forces of a country "whether or not any body, contingent or detachment of those forces is present in Australia". Section 116H(4) provides that the service authority of a foreign country into whose custody a person is delivered pursuant to a warrant under that section "may remove the person from Australia". In the view I take of the 1963 Act it is unnecessary to consider the validity of Pt IXA, but if that question were to arise in times of peace, the support which the defence power could give to its validity would require careful consideration. It is sufficient for the purposes of this case to hold that Pt III of the 1963 Act could not have provided authority for the arrest of the prosecutor and consequently that the request for his arrest was not validly made.
Mr Beane is not alleged to have committed any extraditable offence; he is not in custody for any offence committed in this country or for any offence of which any court of this country has cognizance; he is not in custody as a prohibited immigrant or as an alien liable to deportation; he has the status of a permanent resident of Australia. He has a right to be free. He is entitled to a writ of habeas corpus. In this Court, instead of issuing a writ of habeas corpus, we may direct the discharge of the person in custody (O.55 r.46) and that is the appropriate order to make. The order nisi for prohibition to the second respondent should be made absolute.