Ruhani v Director of Police

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: GLEESON CJ,McHugh J.,Gummow,Hayne JJ,Kirby J,Callinan,Heydon JJ
• Judgment Date: 31 August 2005
• Neutral Citation: [2005] HCA 42,2004-0831 HCA A
• Docket Number: C8/2004
• Date: 31 August 2005

Mohammad Arif Ruhani

Appellant

and

Director of Police through the Secretary of Justice as Director of Public Prosecutor

Respondent

[2005] HCA 42

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

C8/2004

HIGH COURT OF AUSTRALIA

Ruhani v Director of Police

Courts — High Court of Australia — Objection to competency — Whether High Court competent to hear and determine appeals from the Supreme Court of Nauru.

Constitutional law (Cth) — Federal judicial power — Original jurisdiction of the High Court — Conferral of jurisdiction on the High Court to hear and determine appeals from the Supreme Court of Nauru — Nauru (High Court Appeals) Act 1976 (Cth) (‘the Act’) enacted to implement Agreement between Australia and Nauru relating to such appeals — Whether law conferring original jurisdiction on the High Court — Relevance of use of appellate nomenclature in the Act — Relevance of source and identity of rights and obligations to be adjudicated under the Act — Relevance of simultaneous creation and enforcement of rights in the Act — Whether proceedings brought in a matter arising under any law made by Parliament where rights and obligations defined by reference to law of another polity.

Constitutional law (Cth) — Federal judicial power — Appellate jurisdiction of the High Court — Conferral of jurisdiction on the High Court to hear and determine appeals from the Supreme Court of Nauru — Whether the Act confers appellate jurisdiction on the High Court to hear such appeals — Whether such appeals heard by the High Court pursuant to s 73 of the Constitution — Whether s 73 of the Constitution exhaustively defines the appellate jurisdiction of the High Court.

Constitutional law (Cth) — ‘External affairs’ power — Relations of the Commonwealth with the islands of the Pacific — Whether Act validly confers appellate jurisdiction on the High Court in the exercise of legislative power with respect to external affairs or relations of the Commonwealth with the islands of the Pacific.

Practice and procedure — Costs — Motion for indemnity costs — Commonwealth funding respondent's competency objection by way of indemnity arrangement — Commonwealth did not appear in proceedings concerning validity of Commonwealth legislation — Whether Commonwealth liable for costs on an indemnity basis.

Practice and procedure — Motion for joinder — Whether Commonwealth or Republic of Nauru should be joined as a party — Whether High Court may order costs against non-party — Whether High Court should so order in circumstances of the case.

Words and phrases — ‘appeals’, ‘appellate jurisdiction’, ‘original jurisdiction’, ‘competency’.

Constitution, ss 51(xxix), 51(xxx), 73, 75(i), 76(ii).

Judiciary Act 1903 (Cth), s 26.

Migration Act 1958 (Cth), s 36.

Nauru (High Court Appeals) Act 1976 (Cth), ss 4, 5.

Nauru Independence Act 1967 (Cth), s 4.

Representation:

G Griffith QC with K L Walker and L G De Ferrari for the appellant (instructed by Vadarlis & Associates)

P J Hanks QC with S J Lee and S P Donaghue for the respondent (instructed by Clayton Utz)

ORDER

Made on 9 December 2004:

The objection to the competency of the appeal is disallowed.

Made on 31 August 2005:

• 1. Motion seeking joinder of the Republic of Nauru and the Commonwealth of Australia dismissed.

• 2. Appellant to pay the costs of the respondent of the motion.

• 3. Respondent to pay the costs of the appellant of the objection to competency.

• 4. Costs provided for in orders (2) and (3) be set off.

1 GLEESON CJ. Section 5 of the Nauru (High Court Appeals) Act 1976 (Cth) (‘the Nauru Act’) confers, or purports to confer, upon this Court jurisdiction to hear and determine appeals from the Supreme Court of Nauru in accordance with the terms of an Agreement between the Commonwealth of Australia and the Republic of Nauru. The historical background to the Agreement, and to the legislation, is explained in the reasons of other members of the Court. The appellant was unsuccessful in proceedings for habeas corpus brought by him against the respondent in the Supreme Court of Nauru. He appealed to this Court. An objection to the competency of the appeal was filed by the respondent. It was heard as a preliminary issue. The ground of objection was that s 5 of the Nauru Act is invalid. On 9 December 2004, the Court disallowed the objection to competency. The following are my reasons for joining in that order.

2 The essential ground of invalidity asserted by the respondent was that s 5 of the Nauru Act purports to confer on this Court a form of judicial power that is extraneous to Ch III of the Constitution. The jurisdiction purportedly conferred is not jurisdiction to hear and determine an appeal of a kind referred to in s 73 of the Constitution. That is agreed. Nor, so it is submitted, is it original jurisdiction of a kind identified in s 75 or s 76. That is disputed. In particular, the appellant contends that what is involved is a conferral of original jurisdiction in a matter arising under a law made by the Parliament, within the meaning of s 76(ii).

3 As an alternative to the s 76(ii) argument, the appellant also contended that, even if the jurisdiction conferred by the Nauru Act is not original jurisdiction of the kind referred to in s 75 or s 76, for the reason that it is appellate and not original in character, s 73 is not an exhaustive statement of the Parliament's power to confer appellate jurisdiction on this Court, and the Nauru Act validly confers appellate jurisdiction in the exercise of the legislative power given by s 51(xxix) (external affairs) and s 51(xxx) (relations with Pacific islands). This alternative argument, if it arose, would face the formidable obstacle of a long line of authority in this Court to the effect that Ch III of the Constitution (which, for present purposes, means ss 73, 75 and 76) ‘is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested.’ 1 The possibility that the powers conferred upon the Parliament by s 51 to make laws with respect to specified subjects might have included power to create courts with appropriate jurisdiction, beyond the kinds of jurisdiction referred to in Ch III, was rejected by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia2. They said:

‘Had there been no Chap III in the Constitution it may be supposed that some at least of the legislative powers [conferred by s 51] would have been construed as extending to the creation of courts with jurisdictions appropriate to the subject matter of the power. This could hardly have been otherwise with the powers in respect of bankruptcy and insolvency (s 51(xvii)) and with respect to divorce and matrimonial causes (s 51(xxii)). The legislature would then have been under no limitations as to the tribunals to be set up or the tenure of the judicial officers by whom they might be constituted. But the existence in the Constitution of Chap III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss 71–80.’

4 If the powers conferred by s 51(xxix) and s 51(xxx) extend to the conferral of a jurisdiction on this Court beyond jurisdiction of the kind envisaged in ss 73, 75 and 76, then it is difficult to see why they would not extend to the creation of a court of a kind altogether different from Ch III courts, and to the conferral of judicial power on such a court. If the powers given by s 51 extend to a power to confer jurisdiction, original or appellate, of a kind not envisaged by ss 71–80 (relevantly, ss 73, 75 and 76), then there seems no reason why they would be limited to power to confer such jurisdiction on a Ch III court. Section 122, concerning Territories, has been held at least to some extent to stand apart from this constitutional scheme, and the defence power has been held to extend to the creation of courts-martial, but it is difficult to apply the reasoning in support of those qualifications, if it be proper so to describe them, to the powers presently in question.

5 The reason given for the received doctrine on this subject is that the affirmative words of Ch III granting power to create courts, confer the judicial power of the Commonwealth, and provide for the exercise of jurisdiction, carry a negative implication and ‘forbid the doing of the thing otherwise’ 3. That is ‘a proposition which has been repeatedly affirmed and acted upon by this Court’ 4. The discernment of such a negative implication in Art III of the United States Constitution, upon which Ch III was modelled, was fundamental to the reasoning of the Supreme Court of the United States in Marbury v Madison5. In that case Marshall CJ, speaking with reference to Art III's assignment of original and appellate jurisdiction, said 6:

‘Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all.’

6 It is unnecessary to examine in greater detail the appellant's alternative argument. In my view, the appellant is correct in submitting that the power necessary to sustain the legislation is found in s 76(ii).

7 Chapter III does not use the expression ‘appellate jurisdiction’. That, however, is an expression that is commonly and conveniently used to describe the jurisdiction, conferred by s 73, to hear and determine appeals from certain specified courts within the Australian judicature. The present proceedings do not involve an appeal from any of those courts. The question is not whether, in some other context, or apart from any context, it would be more appropriate to describe the proceedings as appellate than to describe them as original. The question is whether, in the...