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Our staff of freelance writers includes over 120 experts proficient in Tampa, therefore you can rest assured that your assignment will be handled by only top rated specialists. Order your Tampa paper at affordable prices !This paper attempts to explore the judgements and issues arising from the Tampa affair that took place in September 001.The Government's decision to deny entry of the MV Tampa into Australian territory raised several debated concerns both nationally and internationally.Despite the Government's constant re-iteration of the concept of the protection of national sovereignty, these constitutional issues argued in the Federal Court, primarily concerned the legality of the steps the government took in dealing with the situation.The two main issues in dispute werewhat is the scope of the executive's power to exclude, expel, and detain 'aliens'? And if so, has such power been abrogated by legislation? In looking at the role of prerogatives and analysing the Federal Court's decision, we will be able to answer these questions, and establish why there was a division amongst the court on these issues.
In response to a request by the Australian Coast Guard, a Norwegian carrier ship, the MV Tampa rescued 4 from a sinking fishing boat.After mounting concerns that the rescuees were ill, the rescuees were taken to Nauru and New Zealand after they were denied entry into Australian territory.This was to initially determine whether the rescuees would be entitled to protection as refugees, despite that the Migration Act 158 (Cth) could regulate the "entry, presence, departure and deportation of non-citizens." The Act also permitted and empowered officers to board and search shipsand also conferred on the Government powers to detain and remove unlawful citizens .The argument presented by the Victorian Council for Civil Liberties (VCCL) in the initial hearing heard by North J, was that the rescuees were unlawfully detained and sought relief on the grounds of habeas corpus to release the rescuees from detention.The VCCL argued that the Governments acts resulted in a total restraint on the freedom of the rescuees as they were detained on board the vessel .In the initial hearing North J concluded that the Migration Act was intended to regulate the whole area of removal of aliens, and leaves no exercise of any prerogative power on the subject .However, the judgement was over turned on appeal after the immediate subsequent passing of the Border Protection Act (Validation and Enforcement Powers) Act 001 (Cth).
Role of Prerogatives
Custom Essays on Tampa
Prerogative powers are the common law powers of the Crown ultimately derived from the Queen.They are fundamental for Australia to function as a sovereign nation with the Commonwealth inheriting all the prerogatives powers of the Queen Davis v Commonwealth.The role of prerogatives is to allow the executive to make decisions which are in the nation's best interest without any statutory authority.S61 of the Constitution provides the executive with this discretionary power
"The executive power of the Commonwealth is vested on the Queen and is exercisable by the Governor-general as the Queen's representative, and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth."
However, the scope of the Executive's power is not exhaustive and the Executive must function within the powers conferred to it by the Constitution.In addition, the Executive is further limited as Parliament can limit or extinguish prerogative power by statute.
The Executive's Scope and Power of the Prerogative to Exclude, Expel and Detain Unlawful Non-Citizens
In the initial hearing heard in the Federal Court, North J presiding alone held that the prerogative powers did not extend to the detainment and expulsion of non-citizens. His honour considered matter by way of habeas corpus, stressing the need for statutory authority as the basis for any detention if any right to habeas corpus is to be abrogated. In addition, his honour examined the lack of historical evidence as did Barton J in Robtelmes v Brenan
"There are dicta of Blackstone and Chitty to the effect that the Crown by its prerogative can expel even alien friends; but there does not seem to have been any attempt since the revolution to exercise such prerogative, and the extrusion of alien friends has since then always been effected by statutory authority."
In concluding his finding, his honour found that the exclusion, expulsion and detainment of unlawful non-citizens was not a legitimate exercise of the prerogative.
On appeal, Black CJ dissented against the majority and adopted a similar view to North J, stating that such power must stem from statutory authority and that the executive's power is not unlimited
"No executive authority, apart from that conferred by statute, to subject anyone in Australia, citizen or non-citizen to detention."
His honour also based his ruling on lack of historical evidence
"A long period of disuse extinguishes the prerogative, because it would be illusory to say that parliament has, in such circumstances, made the choice to leave the prerogative in the Crown's hands."
His honour finds it clear that the lack of a modern existence and exercise of the power, infers that the power is deemed invalid, hence the scope is limited.
In conclusion his honour affirms that it is doubtful that asserted prerogative continues to exist at common law
"Parliament intended that in the field of exclusion, entry and expulsion of aliens the Act should operate to the exclusion of any executive power derived otherwise than from powers conferred by Parliament."
In contrast, the majority ruling of Beaumont and French JJ clearly shows a strong agreement that there was a prerogative power that extended to the exclusion, expulsion and detainment of unlawful non-citizens.French J begins his judgment with a quote from Zines
"At the time of federation and the early years of the Commonwealth it seems to have been assumed that a number of the common law prerogatives of the Crown such as the power to declare war, enter treaties or acquire territories, were not subsumed in S 61 but remained with the Crown to be exercised upon the advice of Imperial Ministers."
He then goes on to state his basic underlying principle for his reasoning
"The scope of the executive power conferred by S61 of the Constitution is to be measured by reference to Australia's status as a sovereign nation and by reference to the terms of the Constitution itself."
His honour interprets S61 with a broad view, in that the Executive has an unlimited power to do what is in the nation's best interest.He concedes that when assessing the scope of S61, one must look to how it applies to the maintenance of the constitution.Thus, it can be concluded that S61 applies to the purpose of the constitution.
French J then continues his argument by stating
"The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by Constitution, the ability to prevent people not part of the Australian community, from entering."
Again, his honour reiterates the idea of the nation's sovereignty and the nature of its importance.
In conclusion, his honour states that the steps taken were within the scope of Executive power, and that the task of the court is to decide whether the power exists, not whether it was exercised wisely and well.
In his judgement, Beaumont J agrees with French J claiming that the primary judge (North J) in the initial judgement unsuitably approached the issue and instead of addressing the issue of the scope of executive power, the "primary judge should have inquired whether at common law (habeas corpus being a common law remedy) there was a legal right in the occupants to enter Australia.If his Honour had asked this question, it would, in accordance with the settled course of authority, have been answered in the negative."
His honour then proceeds to affirm the relevant course of authority of Musgrove v Toy [181] AC 7 where the Privy Council held that apart from statute, an alien has no legal right to enforceable by action to enter Victoria. His Honour again re-instated the point by looking at Lord Atkinson's judgement in Attorney-General (Canada) v Cain [106] AC 54 (at 547)
"One of the rights possessed by the supreme power in every state is the right to refuse to permit an alien to enter that state…Vattel, Law of Nations, book 1, s1; book , s15."
Finally Beaumont concludes that "The occupants had no legal right at common law enforceable in a court to enter Australia.It must follow in my view, that no foundation existed for the grant of a common law prerogative of a writ of habeas corpus compelling their entry into Australia."
It can be seen that the majority judgement re-enforces the notion that Australia's sovereignty is undermined if Australia is not allowed to decide who enters its borders.Beaumont and French JJ seem take the view that S61 is immensely fundamental and that the entire issue of parliamentary sovereignty is undermined. However it can also be concluded from this view that the majority's argument does not look strong if such prerogative powers can be enacted which are so grossly outdated.The cases that Beaumont J seeks to rely upon are old and arguably obsolete, which also can be seen as undermining parliamentary sovereignty.
Thus it seems that the minority judgement is more preferable.Both Black CJ and North J recognise that such an exercise of the prerogative can exist, however the scope of S61 limits the power conferred upon the Executive to not only deal with the detainment of non-citizens, but most issues concerning national sovereignty and what is in the nations best interest.However, it can also be argued that legislation dealing the regulation of prerogative power was enacted literally, to prevent the 'abuse' and 'misuse' of the power, thus the notion that the ruling majority judges seem to have found of unlimited executive power is severely questioned.
To What Extent has any such Power Been Abrogated by Legislation?
Even if the prerogative did once exist, it seems clear the power has been abrogated by the Migration Act 158 (Cth).In his ruling North J argued that the scope of the Migration Act 158 (Cth) replaced any likelihood for the prerogative to be exercised in this area.By looking at the purpose of the act expressed in S4, the dissenting judges found that the clear intention of the act was to regulate the presence and entry on non-citizens in Australia as it is in the nation's best interest.Black CJ stated the purpose of the Act as being "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens".Thus it can be construed, that the purpose of the Migration Act 158 (Cth) along with the Border Protection Legislation Amendment Act 1 (Cth) shows thatParliament intended the law, to clearly state whom it seeks to exclude from Australia and is highly unlikely that there be such a continuation of the exercise of the prerogative power.
French and Beaumont JJ also looked at the purpose of the Migration Act 158 (Cth) but found that the abrogation of the prerogative was not expressly stated in a provision of the Act. Thus, since Parliament did not intend to abrogate the prerogative, their honours held that there was a valid exercise of the Commonwealth's power under S61 of the Constitution; hence the Commonwealth did not unlawfully detain the rescuees.
Therefore, it can be seen that the minority judgement is again preferable.It seems reasonably clear Parliament has 'covered the field' and has intended to regulate in detail the topic of expulsion, exclusion and detainment of unlawful non-citizens.In addition, it is clear that if legislation is enacted that covers a prerogative, then that prerogative should no longer be deemed to be in existence.
The Legislative Response to the Tampa Litigation
In a response to the Tampa litigation, the government was quick to pass the Border Protection Act (Validation and Enforcement Powers) Act 001 (Cth).The purpose of the bill included new and amended provisions of the Customs Act 101 to allow the interception, detainment and expulsion of persons attempting to enter Australia without Visas.The justification for the passing of the bill can arguably be seen as the Government's backing of the key statement behind Prime Minister Howard's electoral campaign, "Every nation has the right to effectively control its borders and to decide who comes here and under what circumstances, and Australia has no intention of surrendering or compromising that right."
Thus, the Government was able to pass the bill without any legal scrutiny, as Mr Howard argued it was necessary to legislate against further possibilities of illegal encounters into Australian territory.In justifying the passing of the bill, Mr Howard stated that its purpose was to ensure that the Executive determine who comes into Australia and under what circumstances "The protection of our sovereignty, including Australia's sovereign right to determine who shall enter Australia is a matter for the Australian government and this parliament."Consequently, the Executive was to be removed from any judicial review and oversight.
However, it seems clear that the bill was only a legislative response to Tampa litigation and the problems for the executive that arose from it. But for the passing of the Border Protection Act (Validation and Enforcement Powers) Act 001 (Cth), the issue of the legality of the Government's steps it took in dealing with the rescuees aboard the Tampa would have been reviewed and clearly found illegal due to legislation (Migration Act 158 (Cth)) that arguably expressly dealt with the issue.Thus, it can be inferred that the Government was clearly unconcerned with the existence of the prerogative.Consequently, the Government's recklessness in dealing with the situation caused it to act immediately without considering the possible legal repercussions.
Conclusion
The Tampa litigation is a highly controversial and debatable issue and it is not surprising that the Court was divided on the issue.Despite the ruling judgement, the finding of the minority seems to be more persuasive.It seems unambiguously clear that parliament intended the issue to be governed by statute as the purpose of the Migration Act 158 (Cth) expressly dealt with it, thus the executive did not have the scope of the prerogative power to detain the rescuees aboard the Tampa.However, several other contentious issues arose from the litigation - we are forced to review the Federal Court and its decision to agree with the government on the issue, as the effect of the court's decision was to pass a bill that arguably already existed.Arguably, the role of the judiciary is to keep the government under control, and even though the decision of the court can be seen to reflect public opinion, it is not the court's role to undemocratically side with the government because of public opinion. Finally, we see the beginning of the erosion of a fundamental doctrine, the separation of powers, as the government chose to act indecisively, consequently strengthening the executive's power.As clearly shown, the purpose of the Border Protection Act (Validation and Enforcement Powers) Act 001 (Cth) was to exempt the executive from consequent judicial review.
"It is said that difficult cases make bad law" and the Tampa litigation is dubiously no exception to this statement.The Judiciary should not have to continuously justify the Executive's actions and decisions, as this will only also result in a continuos erosion of the separation of powers.More so, the court should not have to continuously rule alongside the Executive, but should work towards resolving the imbalance of Executive power, which potentially looks like a contentious issue that will arise in the near future.
Bibliography
Castan, Melissa & Joseph, Dr Sarah, Federal Constitutional Law A Contemporary View Sydney Lawbook Co. 001
Zines, L. The High Court and the Constitution (4th Ed.) Sydney Butterworths (17)
Evans, Dr. Simon "The Rule of Law, Constitutionalism and the MV Tampa" v.1 Public Law Review, 4 at 7 (00)
Pringle, Helen & Thompson, Dr Elaine, "The Tampa Affair and the Role of the Australian Parliament" v.1 Public law Review 18 (00)
Commonwealth Parliamentary Debates, House of Representatives ( August 001), p0516
Commonwealth Parliamentary Debates, House of Representatives, Second Reading Speech ( August 001), p056
Cases and Legislation
Attorney-General (Canada) v Cain [106] AC 54
Davis v Commonwealth (188) 166 CLR 7
Musgrove v Toy [181] AC 7
Robtelmes v Brenan (106) 4 CLR 5
Ruddock v Valdaris (001) 110 FCR 41
Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (001) 100 FCR 45
Customs Act 101 (Cth)
Migration Act 158 (Cth)
Border Protection Legislation Amendment Act 1 (Cth)
Border Protection Act (Validation and Enforcement Powers) Act 001 (Cth)
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