Re Bolton; Ex parte Beane

162 CLR 514
70 ALR 225

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(Judgment by: TOOHEY J)

BOLTON;
Ex parte BEANE

Court:

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

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Judgment by:
TOOHEY J

The applicant, Mr. Beane, is seeking against the Captain of H.M.A.S. "Penguin" and the Minister of State for Defence writs of habeas corpus and prohibition aimed at releasing him from the custody of Australian naval forces and at preventing the issue of a warrant for his delivery into the custody of a service authority of the United States of America.

Mr. Beane is an American citizen who enlisted in the Marine Corps of the United States on or about 1 July 1965. He served in Vietnam and on 28 February 1970, while a patient in the United States Naval Hospital in Danang, he left the hospital without permission. On or about 27 April 1970 he left Vietnam and about a day later arrived in Australia. He has remained in Australia ever since.

The facts just mentioned are not in dispute but there is an issue as to whether, at the time he left the hospital, Mr. Beane was still a member of the Marine Corps and therefore whether he is a deserter or absentee without leave from the Marine Corps. With the leave of the Court, that issue has been deferred.

The main question before the Court is whether steps taken for the apprehension of Mr. Beane were lawfully taken. If they were not, he is entitled to be released from custody. If Mr. Beane's apprehension was in that respect lawful, a question then arises as to whether the relevant statutory provisions give rise to an exercise of judicial power by the Minister and whether any decision made in exercise of that power is void because judicial power may only be exercised by a court.

The starting point for a consideration of the relevant statutory provisions is the Defence (Visiting Forces) Act 1963 (Cth). Parts III and IV of the Act were repealed and re-enacted in the Defence Act 1903 (Cth) by the Defence Acts Amendment Act 1981 (Cth). But transitional provisions maintain the operation of the repealed provisions so that steps taken under them have a continued efficacy as if made under the re-enacting statute.

Part III of the Defence (Visiting Forces) Act was headed "Deserters and Absentees Without Leave". Section 19(1) provided that where the "designated authority" of a country in relation to which the section applied, by writing under his hand requested an "authorized officer" for assistance in the apprehension of a member of the forces of that country who was a deserter or an absentee without leave from those forces, the authorized officer might in his discretion issue a warrant for the arrest of that deserter or absentee. The term "authorized officer" was defined by s 19(2) to mean an officer of the Defence Force authorized by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff for the purposes of Pt III. A warrant authorized arrest by a member or special member of the Australian Federal Police, a member of the police force of a State or Territory or any member of the Defence Force (s 19(1)). (The meaning of "the Defence Force" is to be found in the Defence Act.)

A reference in the Act to a country in relation to which a provision of the Act applied was, by s 6(1), a reference to:

"(a)

any country declared by the regulations to be, for the purposes of this Act, a country within the Commonwealth of Nations; and

(b)

any other country declared under this section to be a country in relation to which that provision has effect".

Succeeding sections of Pt III provided for the detention of a person arrested under s 19 and for the delivery of that person into the custody of the service authority of the country to which he belonged as specified in the warrant, subject to a procedure whereby a claim by the person arrested that there was a good and sufficient reason why he should be released from custody was referred to the authorized officer and thereafter to the Minister.

Although the amendments made by the Defence Acts Amendment Act were in force at the time of Mr. Beane's arrest, the relevant request for assistance in his apprehension had been made in November 1982 under s 19(1) of the 1963 legislation. (The 1981 amendments were not proclaimed until August 1983.) All subsequent steps were taken under the Defence Act as amended.

The lawfulness or otherwise of the request for Mr. Beane's arrest turns on whether Pt III of the Defence (Visiting Forces) Act applied only to deserters and absentees without leave from visiting forces or whether it applied to deserters and absentees from any country declared by the regulations to be a country within the Commonwealth of Nations or any other country declared under s 6 to be a country in relation to which the provisions of Pt III had effect. The United States of America was declared under s 6 by cl.5 of the Defence (Visiting Forces) Regulations (Cth). The respondents conceded that Mr. Beane was not at the time of his alleged desertion or absence without leave, or at any time thereafter, a member of a visiting force.

Mr. Beane's argument was that the title of the Defence (Visiting Forces) Act is a guide to the content of the legislation, that Pt III cannot be isolated from the remainder of the statute and that the various parts of the legislation are interdependent. Strong support for that argument is to be found in the judgment of Newton J. in Reg. v. Peterson; Ex parte Hartmann (1969) VR 417; (1968) 14 FLR 1 . His Honour held that the provisions of s 19 of the Act were applicable only to deserters and absentees from a visiting force present in Australia. Since counsel for the applicant relied so heavily on Peterson, it is useful to state in summary form the reasons that led Newton J. to reach the conclusion he did.

1.

The title of the Act is some indication that Pt III is restricted to deserters and absentees without leave from visiting forces.

2.

The fact that the ultimate object of Pt III is the lodging of a deserter or absentee in the custody in Australia of a service authority of his own forces suggests that he will be a deserter or absentee from a visiting force, because otherwise there might well not be any service authority of his own forces in Australia.

3.

By s 8 of the Act the jurisdiction within Australia of service authorities of another country is confined to jurisdiction over members of a visiting force of that other country. Hence if a person who is a member of another country's armed forces, but not a member of a visiting force, is delivered into the custody in Australia of a service authority of his country, that service authority has no jurisdiction over him in Australia nor any right to detain him in Australia against his will.

4.

If Pt III is independent of the rest of the Act, s 19 operates as a penal provision, constituting a significant exception to the general rule that, subject to extradition and migration legislation, every person coming from abroad, as soon as he sets foot in Australia without breach of Australian law is free.

5.

The 1963 statute repealed the Defence (Visiting Forces) Act 1939 (Cth) which was not confined to visiting forces. But Pt III of the 1963 Act drew no express distinction between deserters and absentees from visiting forces and those from other forces and made no provision for handing over the latter at a place "on the coast or frontier of the Commonwealth" - see s 8(2) of the 1939 Act. Those circumstances supported the conclusion that Pt III was intended to apply only to visiting forces.

These arguments have much force but in my view they cannot prevail. To begin with, there is within the framework of the Defence (Visiting Forces) Act sufficient indication that Pt III is independent of Pt II and that it is not confined to visiting forces. That conclusion is supported by the history of relevant legislation. If there is any doubt about the matter, that doubt is put to rest by reference to the second reading speeches in the Parliament when the 1963 legislation was introduced and when the 1981 amendments were made.

The title of the 1963 Act - "An Act to make provision with respect to Naval, Military and Air Forces of other countries visiting Australia, and for other purposes" - is equivocal. Certainly it places emphasis on visiting forces but it concludes with the words "and for other purposes". Part III, which was headed "Deserters and Absentees Without Leave", was a separate part of the Act. So too was Pt IV which was headed "Attachment of Personnel and Mutual Powers of Command". There was nothing in the language of either part to confine its operation to visiting forces. The term "visiting force" is defined by s 5(1) 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". By s 5(2), a reference in the Act to a member of a visiting force is to 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". Not only is Pt II headed "Visiting Forces", it is replete with references to a member of a visiting force: see for instance ss 8(2), (3), (7), 9(1), 13, 16(1), (2), 17(1) and 18(1). There was no such reference in Pt III. Of course that is not to say that a deserter or absentee from a visiting force was not caught by the operation of Pt III; it simply means that the operation of the part was not limited to those persons.

It is also of some interest, though not overly persuasive, that Pt II contains a number of references to actions by the Attorney-General whereas the relevant officer under Pt III was the Minister. The distinction is at least a pointer to the two parts operating independently of each other.

The argument that, since the ultimate object of Pt III was the delivery of a deserter or absentee into the custody in Australia of a service authority of his own forces, it is apparent that he will be a deserter or absentee from a visiting force is not, I think, compelling. Even in the case of a visiting force, by the time a deserter or absentee is arrested there may well be in Australia no service authority of the country to which he belongs. Thus in the case of visiting warships, it will often be the situation that those warships will no longer be in Australia when a deserter or absentee is arrested. But that is of no moment for, by s 21, delivery of the arrested person was 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 ...". Even in the case of a member of a visiting force, he need not be delivered into a service authority of that force.

Of more consequence is the argument relating to s 8 of the Defence (Visiting Forces) Act which contends that if a person, such as Mr. Beane, who was not a member of a visiting force, was delivered into the custody in Australia of a service authority of the United States, that service authority would have no jurisdiction over him in Australia nor would it have any right to detain him in Australia against his will.

Section 8 does not create jurisdiction. It empowers service tribunals and service authorities of a country to which the section applies to exercise, within Australia or on board a ship or aircraft belonging to or in the service of the Defence Force, over persons subject to their jurisdiction, "all such powers as are exercisable by them in accordance with the law of that country" (s 8(1)). The jurisdiction of Australian courts, where a person charged with an offence against a law of Australia or of a State or Territory is a member of a visiting force, is ousted only in regard to those offences mentioned in s 9. They are offences relating to security of the sending country, offences in the performance of duty and offences against other members of the same force. That jurisdiction may be restored if the designated authority of the sending country notifies the Attorney-General that it does not propose to deal with the case under the law of that country (s 9(3)). Mr. Beane has not been charged with an offence against a law of Australia or of a State or Territory and he is not a member of a visiting force.

A person held in custody under Pt III of the 1963 statute (or Pt IXA of the Defence Act, the re-enacted provisions) must be released from custody or, at the direction of the Minister, be delivered into the custody of the service authority of the country to which he belongs at a place in Australia as specified in the warrant. It is true that, in the case of a deserter or absentee who is not a member of a visiting force, s 8 has no application. But it is not an inevitable consequence that the service authority has no power over the deserter or absentee in Australia or that it has no right to detain him in Australia against his will. A view of the operation of Pt III based on such an assumption is, in my respectful view, misplaced .

The offence of desertion or absence without leave is one peculiarly relating to the force to which the offender belongs. Public international law recognizes that consent by a receiving state to the entry of forces of another state implies a waiver of the receiving state's normal supervisory jurisdiction over those forces, though the extent of immunity may be debatable: Chow Hung Ching v. The King (1948) 77 CLR 449 . See also Barton, "Foreign Armed Forces: Immunity From Supervisory Jurisdiction" in The British Year Book of International Law, (1949), p 380. The service authority to whom a deserter or absentee is to be delivered may be already in Australia. If not, a direction by the Minister under Pt III carried, and a warrant issued by the Minister under Pt IXA carries, an implied permission to the service authority to enter Australia to give effect to the direction or warrant. The person so delivered is subject to the control of the service authority but has such rights as the law of his country permits. In the present case the country is the United States, a country to which Pt III of the 1963 statute applied and to which Pt IXA of the Defence Act applies: see Defence Force Regulations (Cth), reg.44.

The 1981 amendments contemplate that there may be an interval between arrest and delivery. Section 116E(4) of the Defence Act reads:

"For the purposes of the application of this Division in relation to the forces of a country, it is immaterial whether or not any body, contingent or detachment of those forces is present in Australia."

Section 116H(4) empowers a service authority into whose custody a person is delivered to remove the person from Australia but nothing in the sub-section "shall be taken to limit any other powers that the authority may have with respect to the person". To the extent that there is a conflict between s 116H(4) and s 8 of the 1963 statute, the former must prevail.

Section 8 is not, I think, directly relevant to the issues before the Court. It permits the exercise of power by service tribunals and service authorities in the circumstances there mentioned. But Pt III of the Defence (Visiting Forces) Act expressly authorized, and Pt IXA of the Defence Act expressly authorizes, the handing over to a service authority of a deserter or absentee in the situations with which they deal. (Part IXA speaks only of an absentee without leave.) They serve a different purpose to s 8. The issue is the range of operation of Pt III; it is common ground that Pt IXA is not confined to visiting forces.

It may be argued that the repeal of Pt III of the Defence (Visiting Forces) Act and its re-enactment as Pt IXA of the Defence Act involved a recognition by the legislature that the earlier provisions relating to deserters and absentees without leave only applied when the person concerned was a member of a visiting force. The inference is open but again the matter is equivocal. And it is apparent from the Parliamentary debates, to which I shall refer, that the argument is not well founded. As to the transfer of the relevant provisions from one statute to the other, see Connell, "Australian Defence Arrangements", Ch.9 in International Law in Australia, (1984) 2nd ed., at p 246.

The relevant legislative history supports the conclusion that s 19 of the 1963 statute was not confined to members of visiting forces. That Act repealed the Defence (Visiting Forces) Act 1939. Notwithstanding the title of the earlier legislation, its provisions relating to deserters and absentees were not confined to visiting forces though they were restricted to forces of the United Kingdom and Dominions. Against the background of World War II and later conflicts and the forging of new alliances, the 1963 legislation widened the range of countries to which the relevant provisions applied. And, in my view, it maintained the notion that the provisions relating to deserters and absentees were not confined to visiting forces. For a discussion of the Visiting Forces Acts, though in a different context, see Nichols, "The Visiting Forces Acts: A Study in Inter-Service Command and Discipline", The Strategic and Defence Studies Centre, working paper No 38 (1981).

Any doubt about the matter is, I think, resolved by a consideration of the second reading speeches in the House of Representatives and the Senate at the time the Defence (Visiting Forces) Act 1963 was introduced. Those speeches are among the admissible material referred to in s 15AB(2) of the Acts Interpretation Act 1901 (Cth). The material is therefore capable of assisting in ascertaining the meaning of provisions in Pt III of the Defence (Visiting Forces) Act if those provisions are ambiguous or obscure. This I take to be so, notwithstanding that Pt III had been repealed before s 15AB was enacted. In any event, the conclusions I have reached are not dependent upon the use of the material. As to the use of such material, see Crawford and Graebner, "The Role of Parliament in Law-Making: The Legal View", (1986) 1 Legislative Studies 24.

There are clear statements in the second reading speech of Sir Garfield Barwick, then Minister for External Affairs and Attorney-General, and of Senator Gorton, then Minister for the Navy and Minister assisting the Minister for External Affairs, that Pt III of the statute was intended to be of wider application than to members of a visiting force. It is necessary to mention only some passages from the second reading speech of Sir Garfield Barwick:

"Part III. - Deserters and Absentees Without Leave, and Part IV. - Attachment of Personnel and Mutual Powers of Command, are not limited to visiting forces. Their provisions will automatically apply to Commonwealth countries, and they can, by regulation, be applied to other countries whether the countries have visiting forces in Australia or not."

(House of Representatives, Hansard, 24 October 1963, p 2260.)

"Mr. Deputy Speaker, Part III. of the bill relates to deserters and absentees without leave from the forces of countries within the Commonwealth of Nations, and other countries to which the part may be applied by regulation. They need not be deserters or absentees from a visiting force."

(House of Representatives, Hansard, 24 October 1963, p 2263.)

In the light of the debate before this Court as to the significance to be attached to the transfer of the deserter and absentee provisions from the Defence (Visiting Forces) Act to the Defence Act, it is of interest to note an additional comment by the Minister for External Affairs and Attorney-General:

"At some future date it may be that the provisions will find their place in general defence legislation where they may more properly belong, but for convenience now we copy the plan of the 1939 act and include them in the visiting forces legislation."

(House of Representatives, Hansard, 24 October 1963, p 2260.)

It is of further interest to note that in his second reading speech on the 1981 amendments Mr. Killen, then Minister for Defence, said:

"The operation of these provisions is not restricted to visiting forces and their inclusion in the Defence (Visiting Forces) Act 1963 was done as a matter of expediency, as the House was informed at the time."

(House of Representatives, Hansard, 17 September 1981, p 1482.)

It was said in argument that Reg v Peterson; Ex parte Hartmann had stood unchallenged for nearly twenty years. Literally that is so though the reason is a matter of speculation. A challenge was irrelevant after the 1981 amendments and a comparable situation may not have arisen between 1968 and 1981. But in any event the proper construction of the Defence (Visiting Forces) Act requires, in my opinion, a different view of Pt III to that taken by Newton J.

The applicant's argument in regard to the exercise of judicial power went this way. If Pt III of the 1963 Act is independent of Pt II, a consequence of a decision to deliver an absentee without leave to a foreign force in Australia may be the indefinite detention of that absentee in Australia. Part IXA of the Defence Act does not materially alter this position as it empowers but does not compel the foreign force to deal with the absentee. The result is that Pt III of the Defence (Visiting Forces) Act was, and Pt IXA of the Defence Act is, invalid since both confer upon persons, who are not courts named in s 71 of the Constitution, part of the judicial power of the Commonwealth. That power is identified as the power to inflict punishment by deprivation of personal liberty.

I do not think this argument can succeed. It is enough to look at the situation as it now exists. The power of the Minister under s 116H of the Defence Act is to direct that the person held in custody be released or to issue a warrant for the delivery of the person "into the custody of a specified service authority of the country to which the person belongs at a place in Australia". Section 116H(4) empowers the service authority to remove the person from Australia but, as already mentioned, is expressed not to limit "any other powers that the authority may have with respect to the person".

I do not accept that the service authority may detain a person in Australia indefinitely. The person has rights against that authority under the law of the country to which the authority belongs. Furthermore, delivery of a person to a service authority under s 116H is for the purposes of Pt IXA. If the service authority is not acting for the purposes of Pt IXA, it by no means follows that the person delivered is without remedy in Australian courts. But on any view of the matter, the Minister does not exercise a power of detention. His powers are to release the person from custody or to issue a warrant for the delivery of the person into the custody of a specified service authority. Those powers must be exercised within a reasonable time, failing which habeas corpus would lie. If there is a power of indefinite detention in Australia (which I reject), it resides in the service authority or the country to which the service authority belongs; but it does not reside in the Minister.

Important though these matters are, they do not arise directly for determination in the present case. Their significance, apart from implications for the judicial power question, is the light they throw upon the proper construction of Pt III of the Defence (Visiting Forces) Act. Difficulties of administration and possible injustices are relevant and in some circumstances may be compelling. But, for reasons already expressed, the proper construction of Pt III leads to the conclusion that s 19 is not confined to visiting forces. Whether or not that is so is the issue before the Court. Other questions may have arisen, but they did not. For instance a contention that, in so far as authority for the detention of Mr. Beane may lie in ss 116F, 116G and 116H of the Defence Act, those sections are ultra vires the legislative power of the Parliament was not pursued.

As to the exercise of judicial power, the position is reasonably analogous to the power of a magistrate or justice of the peace, before whom a person apprehended is brought, to order that person to be returned in custody or to admit him to bail. In Aston v. Irvine (1955) 92 CLR 353 this Court considered such a situation including the existence of a provision empowering a magistrate or justice of the peace to discharge the person apprehended, if it appeared that the charge was of a trivial nature or that the application for his return was not made in good faith in the interests of justice or that for any reason it would be unjust or oppressive to return him at all or until the expiration of a certain period. This, the Court said at p 365, "does not necessarily amount to a grant of the judicial power of the Commonwealth and there is no reason to treat the provision as unconstitutional".

The power conferred on the Minister is an administrative, not a judicial one: see Reg. v. Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 ; also Mason J. (as he then was) in Reg. v. Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at pp 626-628. Other than to release the person from custody, his power is exercised for the purpose of enabling an absentee without leave to be dealt with by the relevant service authority of the country to which he belongs.

Inevitably a case relating to the liberty of the individual gives rise to concern. It is sixteen years since Mr. Beane's alleged desertion or absence without leave. He has been in Australia most of that time and he has acquired permanent resident status for the purposes of the Migration Act 1958 (Cth). One may question the fairness or the utility of the course being pursued against him. But the same concern would arise and the same questioning take place had Mr. Beane been a member of a visiting force in 1970 who deserted or absented himself without leave while in this country. Yet in those circumstances the operation of Pt III of the Defence (Visiting Forces) Act would not be in doubt. For this Court the issue must be one of the scope of Pt III as determined by the proper construction of the relevant legislation.

There remains the issue of fact mentioned at the outset of these reasons. Unless that issue is resolved in favour of the applicant, the orders nisi should be discharged.