Re Bolton; Ex parte Beane
162 CLR 51470 ALR 225
(Judgment by: MASON CJ, WILSON J, DAWSON 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:
MASON CJ
WILSON J
DAWSON J
We have had the advantage of reading the reasons for judgment prepared by Gaudron J. We agree with the conclusion to which her Honour has come and in substance with her reasons for reaching that conclusion. However, we wish to add some observations of our own.
The first and primary question to be resolved in this case is whether the warrant under which Mr Beane was arrested and detained was authorized by s 19 of the Defence (Visiting Forces) Act 1963 (Cth), as amended ("the Act"). Ultimately, the answer is to be found in the proper construction of the provisions of the Act rather than by reference to the undisputed values securing the liberty of the individual that for centuries have illumined the common law. The respondents say no more and no less than that Mr Beane's apprehension and detention are strictly in accordance with the Act. They readily accept the abiding principles of the common law. The process of construction is in this case a difficult one and it is not surprising that reasonable minds may differ in the conclusions to which they come, as indeed has happened here.
It is said that Mr Beane is a deserter or absentee without leave from the armed forces of the United States of America. It is alleged that the desertion or absenting without leave occurred in Vietnam in 1970. The allegation remains an issue between the parties and its resolution has been reserved pending the decision of the Court on the questions of law that have been canvassed.
There are powerful arguments, as appears from the reasons for judgment of Toohey J., in support of the respondents' contention that on its proper construction s 19 of the Act authorizes the arrest in Australia of a deserter or absentee without leave from the forces of a country to which the section applies notwithstanding that the desertion or absenting occurred outside Australia. There are the textual matters that tend to distinguish Part III of the Act from Part II, thereby emphasizing that s 19 is not intended to be confined to deserters or absentees from visiting forces while in Australia. Furthermore, given that s 19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second-reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s 15AB. That speech quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
The stumbling-block in the way of accepting the respondents' view of s 19 is the absence of any express power in the Act for the service authority of the country to which the deserter belongs to deal with him when he is handed over in accordance with Part III unless he has deserted from a visiting force. This was the principal reason which led Newton J. in Reg. v. Peterson; Ex parte Hartmann (1969) VR 417; (1968) 14 FLR 1 , to conclude that Part III must be construed as referring only to deserters from a visiting force. Section 8 of the Act is detailed and explicit in providing for the exercise of powers within Australia by the service authorities of a foreign country over the members of any visiting force. The absence of any corresponding provision empowering service authorities to deal with servicemen who have not deserted while attached to a visiting force within Australia is highly significant. The significance of its absence is emphasized by the fact that the predecessor to the Act, the Defence (Visiting Forces) Act 1939 (Cth), dealt expressly with deserters other than from visiting forces and made provision for the deserter, having been apprehended within Australia, to be handed over to the service authority of the country to which he belonged "on the coast or frontier of the Commonwealth" (s 8(2)), thereby, in the context of the statute, implying authority for the removal of the deserter from the Commonwealth. Again, the Defence Acts Amendment Act 1981 (Cth), which repealed Part III of the Act and inserted a new part, Part IXA, in the Defence Act 1903 (Cth), as amended, and which admittedly extends to absentees other than from a visiting force , provides in s 116H(4) express power to a service authority to remove the absentee from Australia.
The respondents argued that the defect in the scheme of the Act could be overcome by resort to principles of public international law whereby a degree of immunity from the jurisdiction of Australian courts is accorded to members of a visiting force. It is unnecessary to discuss the uncertain boundaries of international law in this regard and its general operation: see, generally Wright v. Cantrell (1943) 44 SR (NSW) 45; Chow Hung Ching v. The King (1948) 77 CLR 449 . In our opinion, with respect to those who think differently, it would be an unwarranted reliance on the principles of international law to find therein an authority in a representative of the naval, military or air forces of a foreign country to enter Australia for the purpose of receiving an alleged deserter into his custody with power to remove him from the country. If there were at the material time a visiting force present in Australia then, in the absence of statutory provision, international law may well be relevant but then only with respect to members of the visiting force. In any event, we are concerned with an Act which purports to cover the field of visiting forces and we do not think there is any room for international law to make up any deficiency, whether the result of inadvertence or not, which may appear in the law.
Mention should be made of the decision of the Court of Appeal in England in Reg. v. Thames Magistrate; Ex parte Brindle [1975] 1 WLR 1400 ; 3 All ER 71 and 941. The question was whether s 13 of the Visiting Forces Act 1952 (UK) authorized the handing over to the United States authorities in the United Kingdom of a person who deserted from the United States Army in West Germany. It was held that s 13 was not limited in its application to deserters from visiting forces in the United Kingdom. In the absence of express statutory power in the receiving authority when the deserter is handed over, it was held that there was an implied power in s 13 to remove the deserter from the jurisdiction of the English courts or to make such other disposition as the United States authorities thought proper, as for example, by appointing him to serve as a member of a visiting force then in the country. The decision of Newton J. in Peterson was distinguished. Roskill L.J., with whose judgment Ormrod L.J. agreed, said of the decision (at p 1411 of WLR; p 945 of All ER):
"... first, it was a decision upon a different statute from that with which we are concerned; secondly, the language of the Australian statute differs in a number of important respects from the language of the Act of 1952. The long title is different; and the section comparable with section 13 of the English Act does not contain any reference to legislation such as the Army Act 1955."
When all is said and done, the picture is reasonably clear. In 1968, in Peterson, the Supreme Court of Victoria held that s 19 of the Act on its proper construction referred only to members of a visiting force who deserted or absented themselves without leave. That decision was not the subject of any appeal. Section 19 is no longer the law, having been repealed by the Defence Acts Amendment Act but with the transitional s 18(1) of the last-mentioned Act preserving the operation of s 19 so far as concerns any requests made prior to its repeal. Mr Beane has resided in Australia continuously since April 1970 and has acquired permanent resident status for the purposes of the Migration Act 1958 (Cth), as amended. In our view, there are only two courses open to the Court. One is to construe s 21(1) of the Act, which expressly authorizes the delivery of the alleged deserter into the custody of the service authority (and no more), as by implication authorizing the service authority to remove the person in question from Australia. The respondents did not argue that any such power was to be implied although resort to such an implication played a key part in the reasoning of the Court of Appeal in Brindle. The alternative course is to confirm Peterson, acknowledging the length of time that the decision has stood undisturbed, the fact that the legislation has now been repealed and the serious implications that the construction contended for by the respondents would have for a person enjoying permanent resident status in Australia.
In our opinion, notwithstanding the expressed intention of the government in introducing the law into the Parliament - an aspect of the matter which, as we have said, must give the Court cause for earnest consideration - we would not be justified in reading an implication carrying such serious consequences for the liberty of the individual into s 21(1) of the Act. The decision in Peterson must stand, with the result that Mr Beane is entitled to be released.
The Court has before it orders nisi for both a writ of habeas corpus directed to the first respondent and a writ of prohibition directed to the second respondent. It will be sufficient if the Court directs that the prosecutor be discharged and makes absolute the order nisi for a writ of prohibition .