Hello everyone, my name is Renato Costa, this is Aussie Law, and today we will analyze a new case. This time not decided by the High Court of Australia but by the full court of the Federal Court of Australia. The case is called Ruddock and Vardalis but it's also known as the Tampa case. The Tampa case is about executive powers. More precisely, it shows how section 61 of the Australian Constitution contains non-statutory powers, but is not necessarily the source.
That is, the case refers to the constitutionality of non-statutory executive powers. Do you remember that we already talked about the types of executive power? Among them, I referred to the prerogative powers, and also to the nationhood powers. These are types of non-statutory executive powers.
So, what was the decision in the Tampa case? And why is this case so relevant that I had a whole video just for it? You will soon find out.
So, let's start with the facts of the case. There was this Norwegian container ship called MV Tampa. This boat was set to arrive in Australia, but just before it did, It received a call from the Australian coastline asking it to help another boat that was in international waters and was having some troubles that were situated there between Indonesia and Australia. That boat was full of asylum seekers coming mainly from Afghanistan and Iraq. So the MV Tampa responded to the Australian coastline call and it rescued the people that were there.
There were 433 asylum seekers in that boat. Before entering Australian waters, The MV Tampa asked for permission to offload the asylum seekers, but that permission was denied. However, the Tampa still got into Australian waters, because they alleged that there was a medical emergency on board. When the ship docked, the Australian SAS troops took control of it. While this whole situation was developing, the Australian government came to an agreement with Nauru for the asylum seekers to go there while their claims were being analyzed in Australia.
In the meanwhile, a group of Australian lawyers brought an action against the government, challenging the power, the executive power, to expel the aliens, the asylum seekers. The group argued that the power to deal with the asylum seekers came from an act of parliament, the Migration Act of 1958. But the Commonwealth argued that they had this ancient prerogative power. to exclude aliens and even if they needed to, to detain them.
And these powers were parallel to the powers that were given by the Migration Act. So two questions were put before the federal court. One, whether there was this non-statutory prerogative power to exclude, expel and detain the aliens.
And two, if such powers, non-statutory powers really existed, if they had been abrogated by the Migration Act. For our purpose here, I only focus on the parts of the decisions of the justices related to the executive powers. That's because this case, as you can imagine, touches on other areas of law, so I'm not discussing them here. The case was decided by the full court of the Federal Court of Australia, pursuant to an appeal by the Commonwealth, because they lost in the first instance. At the full court, the Commonwealth won, 2 to 1, with Chief Justice Black in dissent and Justices French and Beaumont in the majority.
Justice French, who was later on to become Chief Justice French of the High Court of Australia, said that the non-statutory powers argued by the Commonwealth to expel, exclude and detain even asylum seekers, they did exist, and that the Migration Act did not evidence any intention to take away these powers. His Honor cited the opinion of Chief Justice Mason in Barton and Comwell from 1974, where he stated that section 61 of the Constitution did include the non-statutory prerogative powers, that is, those powers that was granted to the Crown by the common law. Then Chief Justice French went on to say that although the expression prerogative powers was used, this was not adequate. It didn't quite illuminate the origin of those non-statutory powers in section 61. In fact, as Justice Brennan has said in a case called Burns and Rensley of 1940, the executive prerogative powers relate not only to the institutions of government, but more generally to the protection and advancement of the Australian nation. This is the point where Justice French affirmed that these non-statutory powers to expel, exclude and detain aliens did not come from the prerogative powers necessarily, but they arise from the status of Australia as a nation.
So these non-statutory powers are not prerogative powers. They come from the idea of a sovereign nation that Australia is. As his Honour said, 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 the Constitution, the ability to prevent people not part of the Australian community from entry.
So, do you remember what kind of power this is? Of course you do, because I already told you. These are the nationhood powers.
Non-statutory powers that look like prerogative powers, but relate more closely to the idea of Australia as a nation, as a sovereign state. This was agreed by Justice Belmont in the Tampa case, and then the majority was formed. However, the dissenting opinion of Chief Justice Black deserves attention.
Especially if we want to understand a bit more about prerogative powers. That's because for him this was a typical case of the existence of prerogative powers being exercised by the executive. However, for him, the Migration Act developed a scheme that surpassed the non-statutory powers that were being exercised. As he said, where a statute, expressly or by necessary implication, purports to regulate wholly the area of a particular prerogative power, power or right, the exercise of the power or right is governed by the provisions of the statute, which are to prevail.
So, in his honest perspective, since the prerogative powers cannot be revived after they've been in disuse, it would be a very strange circumstance if the at best doubtful and historically long unused power to exclude or expel should emerge in a strong modern form from section 61. of the constitution by virtue of the general conceptions of the national interest. So, all in all, Chief Justice Black in the minority was saying that yes there existed this non-statutory power but once a new act of parliament exists and trumps that power then the executive couldn't really rely on that non-statutory power anymore. However, as I said, he was in the minority. And so we do have the understanding that those powers to expel, detain the asylum seekers coming from the MV Tampa did exist and they were not abrogated by the Migration Act.
In the end, the Federal Court of Australia recognized the existence of these non-statutory executive powers, and particularly here the nationhood powers that exist in accordance with Section 61 of the Australian Constitution. I hope you enjoyed this video about the Tampa case. Don't forget to leave a like and also to subscribe to our channel if you liked the video and you thought it was useful.
I hope to see you soon next time. Until then, tchau!