Victorian Council for Civil Liberties Incorporated v Minister for Immigration and Multicultural Affairs [2001] FCA 1297

FEDERAL COURT OF AUSTRALIA

Victorian Council for Civil Liberties Incorporated v Minister for

Immigration and Multicultural Affairs

[2001] FCA 1297 PRACTICE & PROCEDURE –joinder of parties – status of interveners ADMINISTRATIVE LAW – prerogative writs and orders – habeas corpus – power of Court to grant order for release – nature of relief available – whether court has a discretion not to order release when detention is found to exist HABEAS CORPUS – applicability of remedy – nature of restraint required – distinction between partial and total restraint – whether reasonable means of egress available – whether purpose for which release is sought affects the grant of release EXECUTIVE GOVERNMENT – prerogative power of the Executive – whether power to detain aliens without statutory authority ADMINISTRATIVE LAW – standing – where orders for mandamus, injunctions and declarations are sought – whether applicants have a special interest – where acting in the public interest – where mere intellectual or emotional concern CITIZENSHIP & IMMIGRATION – where unlawful non-citizens – whether s245F of the Migration Act 1958 (Cth) applies – whether s189 of the Act imposes a duty to detain unlawful non-citizens attempting to enter the migration zone CONSTITUTIONAL LAW – implied freedom of political communication – whether right extends to aliens – whether right extends to citizens to provide legal advice to aliens – whether government required to facilitate communication Associations Incorporations Act 1981 (Vic) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 5, 13, 14, 189, 196, 198, 199, 229, 245A, 245B, 245F, 256 Human Rights and Equal Opportunity Act 1986 (Cth), ss 3, 11 Lunacy Act 1890 Extradition (Foreign States) Act 1966 (Cth) Border Protection Bill 2001 (Cth) United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, applied Tait v R (1962) 108 CLR 620, applied Kelleher v Corrective Services Commission of New South Wales (1987) 8 NSWLR 423, referred to Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, considered Re Bolton & Another; Ex parte Beane (1987) 162 CLR 514, considered Waters v Commonwealth of Australia (1951) 82 CLR 188, referred to Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, referred to Clarkson v R [1986] VR 464, referred to Bird v Jones (1845) 115 ER 668, distinguished Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26, considered Jones v Cunningham 371 US 236 (1963), considered R v Clarkson (1722) 93 ER 625, referred to R v Delaval (1763) 97 ER 913, referred to Chin Yow v United States 208 US 8 (1907), considered R v The Coroner at Mackay (1990) 1 QdR 451, considered R v Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1986) 13 FCR 66, considered Somerset v Stewart (1772) 98 ER 499, considered Re Gregory (1899) 25 VLR 539, applied Re Esperalta [1987] VR 236, considered R v Langdon; Ex parte Langdon (1953) 88 CLR 158, referred to Robtelmes v Brenan (1906) 4 CLR 395, considered Mayer v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312, considered Minister for Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254, referred to Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508, referred to Australian Conservation Foundation Incorporated v Commonwealth of Australia (1980) 146 CLR 493, applied Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, considered Cunliffe v Commonwealth of Australia (1994) 182 CLR 272, considered McClure v Australian Electoral Commission (1999) 163 ALR 734, applied Universal Declaration of Human Rights (1948) Convention relating to the Status of Refugees (1951) David Clark & Gerard McCoy, Habeas Corpus: Australia, New Zealand, The South Pacific (The Federation Press, 2000) RJ Sharpe, The Law of Habeas Corpus (2nd Ed) (Clarendon Press, 1989) Harry Street & Rodney Brazier, de Smith Constitutional and Administrative Law (5th Ed) (Penguin Books, 1985) THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INCORPORATED v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER FOR DEFENCE and THE COMMONWEALTH OF AUSTRALIA V 899 of 2001 ERIC VADARLIS v THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA and WILLIAM JOHN FARMER, SECRETARY AND CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS V 900 of 2001 NORTH J 11 SEPTEMBER 2001 MELBOURNE