Re Bolton; Ex parte Beane
162 CLR 51470 ALR 225
(Judgment by: GAUDRON 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:
GAUDRON J
Douglas Beane, who has applied to have made absolute an order nisi for habeas corpus, absented himself from the United States Armed Forces in Danang in the Republic of South Vietnam (as it then was) on 28 February 1970. On or about 28 April 1970 he arrived in Australia, and has since continuously resided in this country.
On 22 November 1982 a request was made by the United States Designated Commanding Officer, Australia, for assistance in the apprehension of the applicant. Following this request the applicant was arrested on warrant, and subsequently detained by Australian naval forces. It is common ground between the parties that the arrest and detention are lawful only if the request was authorized by s 19(1) of the Defence (Visiting Forces) Act 1963 (Cth), the efficacy of requests under that sub-section having been preserved by s 18(1) of the Defence Acts Amendment Act 1981 (Cth), notwithstanding the repeal by that latter Act of Part III of the Defence (Visiting Forces) Act 1963, which included s 19.
By s 19(1) it was provided:
"Where the designated authority of a country in relation to which this section applies, by writing under his hand, requests an authorized officer for assistance in the apprehension of a member of the forces of that country who is a deserter or an absentee without leave from those forces, the authorized officer may, in his discretion, issue a warrant in accordance with the prescribed form authorizing a member or special member of the Australian Federal Police or a member of the Police Force of a State or of a Territory or any member of the Defence Force to arrest that deserter or absentee."
Although the words of s 19(1) are sufficiently wide to cover a deserter or an absentee without leave from the forces of a country to which the section applies, notwithstanding that he deserted or absented himself outside Australia, a question necessarily arises as to whether the provision should be so construed in the absence of statutory authority for the representatives of that foreign country to exercise jurisdiction in Australia over the deserter or absentee or to detain him in custody in Australia, he not being a member of a "visiting force" as defined in s 5 of the Defence (Visiting Forces) Act 1963.
By s 8 of the Defence (Visiting Forces) Act 1963 jurisdiction is conferred on the service tribunals and service authorities of a country to which that section applies over:
- "(2)
- ...
- (a)
- members of any visiting force of that country; and
- (b)
- all other persons who, being neither Australian citizens nor persons ordinarily resident in Australia, are for the time being subject to the service law of that country otherwise than as members of that country's forces."
Authority is given in s 8(6) for the detention in custody pursuant to sentence or pending or during the trial of any person over whom jurisdiction is conferred by the section.
A deserter or absentee without leave from the forces of a foreign country is not a person "... subject to the service law of that country otherwise than as (a member) of that country's forces". A deserter or absentee without leave may be a member of a "visiting force" of that country, which is defined in s 5(1) of the Defence (Visiting Forces) Act 1963 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". As the Act confers jurisdiction upon the service authorities and tribunals of a foreign country over, and authority for the detention in Australia of, a deserter or an absentee without leave from a visiting force, but confers no such jurisdiction or authority in respect of a person who otherwise deserted or absented himself without leave from that country's forces, s 19(1) would normally be construed in the context of the Act as a whole as being limited in its application to persons who deserted or absented themselves without leave from a visiting force present in Australia. Such was the construction adopted by Newton J. in the Supreme Court of Victoria in Reg. v. Peterson ; Ex parte Hartmann (1969) VR 417; (1968) 14 FLR 1 . Any wider construction would result in futility in that detention in Australia of the deserter or absentee by the representatives of the foreign country would be unlawful. It is a well established rule of construction that absurdity and inconvenience are to be avoided. As was stated by Brett M.R. in Reg. v. The Overseers of the Parish of Tonbridge (1884) 13 QBD 339, at p 342:
"... if the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning."
It was argued on behalf of the respondents that the want of statutory authority for the representative of a foreign country to detain in Australia a deserter or absentee without leave, not being a deserter or absentee from a visiting force present in Australia, is not conclusive. Such authority, it was submitted, is supplied by the common law which acknowledges the jurisdiction of the service authorities of foreign military forces present in the country by consent over the members of those forces and recognizes a corresponding immunity from the jurisdiction of local courts. The principle contended for was explained by Dixon J. (as he then was) in Chow Hung Ching v. The King (1948) 77 CLR 449 , at p 482 in these terms:
"It is not a claim that the Crown may exclude the jurisdiction of the courts over foreigners if it thinks fit. It is merely that by admitting a very special description of men, viz. an organized body of the armed forces of a foreign nation and by imposing no condition subjecting the force to local law either altogether or in any particular respect, the Crown impliedly undertakes that the force shall be governed by its own discipline and military tribunals to the exclusion of the local jurisdiction and that the common law gives effect to the implication."
It may be doubted whether the statement is a correct exposition of the law of this country, particularly in relation to the original jurisdiction conferred on this Court by s 75 of the Constitution and the non-federal jurisdiction of state courts. The principle, if it exists, is clearly confined to jurisdiction over and corresponding immunity from local jurisdiction in respect of members of the force, and does not extend, as is here the situation to persons not members of the visiting force. Doubtless in recognition of this limitation, it was contended on behalf of the respondents that the common law recognition of the special status accorded by public international law to visiting warships and military aircraft would enable a deserter or an absentee to be delivered to such warship or aircraft with the consequence that subsequent detention and removal were beyond challenge in Australian courts.
The two bases upon which the common law accords special status to visiting warships, with which it was argued military aircraft should be equated, were explained by Lord Atkin in Compania Naviera Vascongado v. S.S. "Cristina" [1938] AC 485 , at p 490 in these terms:
"The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control."
However the real issue is not whether such ship or aircraft is beyond the jurisdiction of Australian courts, but whether detention by the representatives of a foreign country aboard such a ship or aircraft is authorized by Australian law.
In the absence of statutory provision to the contrary, a person in Australia who has not breached Australian law is entitled to his freedom: see Brown v. Lizars (1905) 2 CLR 837 at pp 851-852, 861 and 867-868 and Reg. v. Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 at pp 299-302 and 306-307.
The want of statutory authority for the detention in custody within Australia by the representative of a foreign country of a person who deserted or absented himself without leave from that country's forces, otherwise than as a member of a visiting force in Australia, requires that s 19(1) be construed as having application only to persons who deserted or absented themselves without leave from a visiting force. As this construction is required by the Act itself, there is no necessity for resort to extrinsic material as provided by s 15AB of the Acts Interpretation Act 1901 (Cth).
As the applicant did not desert or absent himself without leave from a visiting force in Australia he is entitled to have the order nisi for habeas corpus made absolute. In view of the provision of O.55 r.46 of the High Court Rules, that entitlement is recognized by direction that the applicant should be discharged from custody. It should be so directed. Also, the order nisi for prohibition to the second respondent should be made absolute.
It becomes unnecessary to consider the further argument advanced on behalf of the applicant that s 116H of the Defence Act 1903 (Cth) confers part of the judicial power of the Commonwealth otherwise than on a court.