Ruhani v Director of Police

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

MOHAMMAD ARIF RUHANI  APPELLANT

AND

DIRECTOR OF POLICE THROUGH THE SECRETARY
OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR               RESPONDENT

Ruhani v Director of Police

[2005] HCA 42

Date of order:  9 December 2004
Date of publication of reasons:  31 August 2005
Date of further orders:  31 August 2005
C8/2004

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.

On appeal from the Supreme Court of Nauru

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)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

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 Australia[2].  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."

   [1]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

   [2](1956) 94 CLR 254 at 269.

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 Madison[5].  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."

   [3]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270.

   [4]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270.

   [5]5 US 87 (1803).

   [6]5 US 87 at 109 (1803).

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 context of Ch III of the Constitution, it is appropriate to describe the jurisdiction conferred on this Court by the Nauru Act as original jurisdiction. The immediate context is s 76(ii), which refers to laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. The wider context is Ch III, and the constitutional scheme which has been referred to above in connection with the appellant's alternative argument.

8. In answering the question, the first step is to identify the matter arising under a law made by the Parliament. The relevant law made by the Parliament is the Nauru Act. That is a law which, in its effect upon the rights and obligations of the parties, operates by reference to a law other than Commonwealth law. The content of the law to be applied by a court in the exercise of federal jurisdiction may be derived from some other law system. This happens, for example, when State law is "picked up" as "surrogate federal law" by reason of the operation of s 79 of the Judiciary Act 1903 (Cth)[7].  An otherwise valid law of the Parliament may pick up the law of Nauru as the law to be applied in determining rights and liabilities in issue in an exercise of federal jurisdiction.  Furthermore, such a law may, in the one provision, both create a right and provide a remedy[8].

   [7]Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 142-143 [12].

   [8]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Hooper v Hooper (1955) 91 CLR 529 at 535-536.

9. The circumstance that the proceedings in which this Court is empowered to review the decision of the Supreme Court of Nauru, and, if appropriate, set aside that decision and make consequential orders, are described as an appeal, (a description which, from the point of view of the parties, is perfectly apt), does not determine the nature of the jurisdiction from the point of view of the Australian judicature for the purposes of Ch III of the Constitution. It is not uncommon for proceedings in a federal court, which involve a review of the decision of another decision maker, which are described in legislation as an appeal, and which from the point of view of the parties have the characteristics of an appeal, to involve, from the point of view of the Australian judicature, an exercise of original jurisdiction[9].

   [9]Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 370-371; Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657; Hembury v Chief of General Staff (1998) 193 CLR 641.

10. The power conferred upon this Court by the Nauru Act is a power to affirm, reverse or modify the judgment, decree, order or sentence of the Supreme Court of Nauru and to make such orders as should have been made or to remit the case for re-determination. That conferral of power by Australian legislation is made pursuant to the Agreement between the Commonwealth of Australia and the Republic of Nauru. In the present case, the litigation is against an officer of the Republic of Nauru, and questions of enforcement of any orders made by this Court involve relations between the two governments. There is no warrant for any assumption that such orders would be ineffective. There is a matter, that is to say, a controversy between the parties to the proceedings as to their respective rights and liabilities. It arises under a law made by the Parliament in the manner already described. Until the jurisdiction created by s 5 was invoked, the controversy did not involve any Australian law, and it had nothing to do with any part of the Australian judicature. Insofar as the controversy can now be said to arise under a law made by the Parliament, it does so only because the jurisdiction of an Australian court is invoked for the first time. So far as the Australian judicature is concerned, this is a new matter. In the context of Ch III of the Constitution, the jurisdiction invoked is original jurisdiction.

11. For those reasons I joined in the order disallowing the objection to competency.  For the reasons given by Gummow and Hayne JJ, I agree in the orders they propose respecting the motion for joinder and the costs of that motion and the objection to competency.

12. McHUGH J.   The ultimate issue in this proceeding was whether the Nauru (High Court Appeals) Act 1976 (Cth) was a valid enactment of the Parliament of the Commonwealth giving this Court jurisdiction to hear and determine an appeal by the appellant against an order of the Supreme Court of Nauru.

13. The issue arose because the respondent, the Director of Police for Nauru, objected to the competency of an appeal lodged in this Court by the appellant, Mr Mohammad Arif Ruhani.  On 9 December 2004, this Court disallowed the Director's Notice of Objection to Competency.  I joined in the order disallowing the objection to competency and now give my reasons for doing so.

14. In my opinion, the Nauru (High Court Appeals) Act 1976 ("the Nauru Appeals Act") is a valid enactment of the federal Parliament and confers original jurisdiction on this Court to determine the "appeal". It is a law validly made under s 76(ii) of the Constitution which empowers the Parliament to "make laws conferring original jurisdiction on the High Court in any matter ... arising under any laws made by the Parliament". Accordingly, the appeal by Mr Ruhani was competent.

    Statement of the case

15. Mr Ruhani is an Afghan national.  By proceedings commenced in the Supreme Court of Nauru in April 2004, he sought the issue of a writ of habeas corpus directed to the Director of Police.  He alleged that he was being held against his will by or on behalf of the Director of Police.  In the Supreme Court of Nauru, Connell CJ granted an order nisi directing the Director to show cause why the order nisi should not be made absolute.  After a hearing, Connell CJ dismissed the application for a writ of habeas corpus and ordered that the order nisi be discharged.

16. By a Notice of Appeal filed in this Court, Mr Ruhani appeals from the judgment and order of the Supreme Court of Nauru.

    The material facts

17. Mr Ruhani was brought to the Republic of Nauru on 21 December 2001 by Australian sea transport.  The Australian Department of Immigration and Multicultural and Indigenous Affairs rejected his application for refugee status.

18. Under a Memorandum of Understanding between Australia and Nauru[10], accommodation for Mr Ruhani and other asylum seekers was established on Nauru at two facilities:  Topside and Former State House.  Since February 2003 or earlier, Mr Ruhani has been detained in Topside Camp on Nauru.  He neither applied for nor consented to the issue of a Nauruan visa for himself.  Nor did he authorise any person to apply for a Nauruan visa on his behalf.  Nevertheless, he was granted a Nauruan special purpose visa on 7 January 2002, which was subsequently extended at the request of the Australian Government.  The International Organization for Migration ("the IOM") manages the facility where Mr Ruhani is detained and provides assistance in obtaining passports and travel documents to asylum seekers who elect to return to their country of origin.  Mr Ruhani has not elected to return to his country of origin and has not requested assistance in applying for passports or travel documents from the IOM.

    [10]Memorandum of Understanding between Australia and Nauru for co-operation in the management of Asylum-seekers and related issues, dated 9 December 2002 and extended 25 February 2004.

    Parties' submissions before this Court

19. The Director objected to the competency of this Court to hear Mr Ruhani's "appeal" from the Supreme Court of Nauru. He contends that the Nauru Appeals Act is invalid because it purports to confer on this Court judicial power that is not part of the judicial power of the Commonwealth. The Director submitted that:

    1.The Nauru Appeals Act purports to confer appellate jurisdiction on this Court.

    2.Section 73 of the Constitution exhaustively defines the appellate jurisdiction of this Court (apart from possible supplementation under s 122 in relation to appeals from Territory courts), and does not authorise the appeal conferred by the Nauru Appeals Act.

    3.The Nauru Appeals Act is not supported by any head of legislative power capable of conferring additional jurisdiction on this Court.

    4.Alternatively, if the Nauru Appeals Act confers original jurisdiction on this Court, the Act is invalid. That is because the original jurisdiction of this Court is exhaustively defined by ss 75 and 76 of the Constitution and proceedings under the Nauru Appeals Act do not fall within those sections.

20. Counsel for the Director conceded that there was at least one s 76(ii) "matter" arising under the Nauru Appeals Act, namely, the question of whether this Court can rule on the objection to competency. And there was another "matter": the appeal involved the interpretation of the Constitution[11].  As a result, the Director did not dispute that this Court has jurisdiction to determine the objection to competency.  But he contended that the Court had no jurisdiction to determine the merits of the appeal.

    [11]Constitution, s 76(i).

21. Counsel for Mr Ruhani contended that this Court has jurisdiction to hear the "appeal" on any one of three bases:

    1.original jurisdiction under s 76(ii) "in any matter … arising under any laws made by the Parliament". The source of the relevant law is either the external affairs power (s 51(xxix)) or the power of the Parliament to make laws with respect to the relations of the Commonwealth with the islands of the Pacific (s 51(xxx));

    2.original jurisdiction under s 75(i) "[i]n all matters … arising under any treaty"; and

    3.appellate jurisdiction under the Nauru Appeals Act, which is authorised by the power conferred under either s 51(xxix) or s 51(xxx), and the exercise of which is unfettered by the operation of s 73.

    Background to the Nauru Appeals Act

22. Historical relations between Nauru and Australia and the constitutional arrangements in Nauru with respect to the exercise of judicial power explain the enactment of the Nauru Appeals Act. An agreement made in 1976 between Nauru and Australia[12] ("the 1976 Agreement") and the Nauru Appeals Act, which gave domestic effect in Australia to that Agreement, were products of an association between the two countries that extended back to the time of the First World War. This relationship gave rise to the unique provisions of the Act that purport to confer jurisdiction on this Court to hear "appeals" from decisions of the Supreme Court of Nauru.

    [12]Australian Treaty Series, (1977), No 11.

23. Germany annexed Nauru in 1888, following an agreement between the British and German Governments in 1886 that divided the Western Pacific into spheres of British and German influence[13].  Australian troops occupied and administered Nauru during the First World War[14]. The Versailles Conference in 1919 agreed to grant a mandate over Nauru to Governments of the British Empire. The effect of Art 22 of the Covenant of the League of Nations was to grant the mandate on 17 December 1920 to the sovereign of the United Kingdom, Australia and New Zealand. On 2 July 1919, the three nations concluded an agreement that provided for the administration of Nauru by an Administrator ("the 1919 Agreement")[15].  Article 1 of the 1919 Agreement operated to vest the administration of Nauru in the Administrator and provided:

    "The Administrator shall have power to make ordinances for the peace, order and good government of the Island, subject to the terms of this Agreement, and particularly … to establish and appoint courts and magistrates with civil and criminal jurisdiction."

    [13]Anghie, "'The Heart of My Home':  Colonialism, Environmental Damage, and the Nauru Case", (1993) 34 Harvard International Law Journal 445 at 450.

    [14]Anghie, "'The Heart of My Home':  Colonialism, Environmental Damage, and the Nauru Case", (1993) 34 Harvard International Law Journal 445 at 450.

    [15]Schedule to the Nauru Island Agreement Act 1919 (Cth).

24. The Nauru Island Agreement Act 1919 (Cth) was enacted to give effect to the Agreement. Exercising a power that Art 1 of the 1919 Agreement vested in the Australian Government, the Government appointed the first Administrator and all subsequent Administrators. Exercising the power conferred by Art 1 of the 1919 Agreement, the Administrator made the Judiciary Ordinance 1922.  That Ordinance established a Central Court and a District Court.

25. In 1947, Nauru was placed under the United Nations Trusteeship System, which succeeded the League of Nations Mandate System.  Between 1947 and 1968, the Republic of Nauru was a United Nations Trust Territory.  The Trusteeship Agreement for Nauru replaced the Nauru Mandate.  Under the Trusteeship Agreement, the Governments of Australia, New Zealand and the United Kingdom undertook to jointly administer the Territory of Nauru.  The administration of Nauru continued under an Administrator appointed by Australia. 

26. The Judiciary Ordinance 1957 ("the 1957 Ordinance") repealed all previous Ordinances and established a Court of Appeal as a superior court of record, a Central Court as a superior court of record, and a District Court.  Under the 1957 Ordinance, appeals lay from the District Court to the Central Court, and from the Central Court to the Court of Appeal.  The Court of Appeal consisted of a single judge who was or had been a Justice of this Court or of the Supreme Court of an Australian State or Territory. 

27. In 1965 an agreement was reached between the Governments of the United Kingdom, Australia and New Zealand in respect of the administration of the Trust Territory ("the 1965 Agreement")[16]. That Agreement provided for the establishment of legislative, executive and judicial branches of government. Under Art 5(1), a Central Court and a Court of Appeal were established "to replace the existing Central Court and Court of Appeal." Under Art 5(4), an appeal lay from a judgment of the Court of Appeal to this Court by leave of this Court.

    [16]Australian Treaty Series, (1965), No 20.

28. The Nauru Act 1965 (Cth), which commenced on 18 December 1965, gave effect to the 1965 Agreement, as required under Art 6. Sections 47 and 49 of the Nauru Act 1965 established the Court of Appeal of the Island of Nauru and the Central Court of the Island of Nauru, respectively. Section 53 provided for the continued existence of the District Court of the Island of Nauru. Section 54 provided that appeals from the Court of Appeal of the Island of Nauru were to lie to this Court, upon leave of the High Court. In the Second Reading speech for the Nauru Bill 1965 (Cth) the Minister for Territories advised the House of Representatives that the provision for an appeal to this Court from decisions of the Court of Appeal was a new provision[17].

    [17]Australia, House of Representatives, Parliamentary Debates (Hansard), 2 December 1965 at 3501.

29. The United Nations General Assembly Resolution of 19 December 1967 resolved that the Trusteeship was to be terminated upon the accession of Nauru to independence on 31 January 1968[18].  The Nauru Independence Act 1967 (Cth) ("the 1967 Act") repealed the Nauru Act 1965 and all Acts that extended to Nauru as a Territory of the Commonwealth as from 31 January 1968[19].  The 1967 Act also provided that as from 31 January 1968, Australia was not to exercise any powers of legislation, administration or jurisdiction in and over Nauru[20].

    [18]Resolution 2347 (XXII).

    [19]The 1967 Act, s 4(1).

    [20]The 1967 Act, s 4(2).

30. The arrangements for appeals to this Court from the Court of Appeal ceased upon the commencement of the 1967 Act.  Thus, only between 18 December 1965 and 30 January 1968 did appeals to this Court lie from the Court of Appeal.

31. However, the Constitution of Nauru permits appeals from the Supreme Court of Nauru to a court of another country. Article 57(2) of the Constitution provides: "Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country."

32. On 6 September 1976, Australia and Nauru concluded the 1976 Agreement, which provided for appeals to the High Court of Australia from the Supreme Court of Nauru in certain circumstances.  As the recitals to the 1976 Agreement state, the Agreement sought to continue arrangements that had been in place between 18 December 1965 and 30 January 1968, prior to Nauru's independence:

    "Recalling that, immediately before Nauru became independent, the High Court of Australia was empowered, after leave of the High Court had first been obtained, to hear and determine appeals from all judgments, decrees, orders and sentences of the Court of Appeal of the Island of Nauru, other than judgments, decrees or orders given or made by consent".

    The Nauru Appeals Act

33. The Nauru Appeals Act gives effect to the 1976 Agreement (the Agreement is appended in the Schedule)[21]. In the Second Reading speech, the Attorney-General, the Hon R J Ellicott QC, said the source of constitutional power for the Act was the external affairs power (s 51(xxix)) or the power of the Parliament to make laws with respect to the relationship between Australia and the islands of the Pacific (s 51(xxx))[22].  The Attorney-General recalled that under the legislation in force when Nauru was a Trust Territory an appeal lay by leave to this Court from the judgments, orders and decrees of the Nauru Court of Appeal.  He told the House that[23]:

    "In the course of negotiations that preceded the independence of Nauru, the Nauruan leaders expressed a wish that provision be made for appeals to the High Court from certain judgments of the Supreme Court of Nauru that was to be established under that constitution.

    The Government is happy to accede to the desire of the Nauruan leaders and so to enter into the arrangements necessary for a suitable scheme for appeals to the High Court. …

    The Bill represents a novel and significant step in that for the first time the High Court will function as a final court of appeal from the Supreme Court of another independent sovereign country. …

    We have had, of course, to consider the source of constitutional power to enable the Parliament to enact the legislation and to confer the jurisdiction on the High Court.  The High Court has held that it may have conferred on it appellate jurisdiction other than from the State courts, so long as there is a proper source of power for the Parliament to enact the legislation conferring the jurisdiction.  A line of decisions [summarised by Menzies J in Capital TV and Appliances Pty Ltd v Falconer[24]] has established that the High Court may hear appeals from Territory courts. …  In the present case, I believe that the external affairs power provides a sufficient constitutional basis for the Bill.  Reference might also be made to the power of the Parliament to make laws with respect to the relations of the Commonwealth with the islands of the Pacific."

    [21]Section 4.

    [22]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 October 1976 at 1647.

    [23]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 October 1976 at 1647.

    [24](1971) 125 CLR 591 at 604.

34. Section 5 of the Nauru Appeals Act provides for "appeals" from the Supreme Court of Nauru to the High Court: "Appeals lie to the High Court of Australia from the Supreme Court of Nauru in cases where the [1976] Agreement provides that such appeals are to lie." Articles 1 and 2 of the 1976 Agreement set out the cases where "appeals" may and may not be brought to this Court.

35. Sections 37 and 44 of the Appeals Act 1972 (Nauru), as amended by the Appeals (Amendment) Act 1974 (Nauru), permit a person to appeal to this Court in certain criminal and civil matters respectively. Those sections also confer jurisdiction on this Court to hear and determine those appeals. Some appeals lie to this Court as of right but, in other cases, leave to appeal is required. Section 51 of the Appeals Act 1972 (Nauru) provides for judgments and orders of this Court to have force and effect in Nauru as if they were judgments and orders of the Supreme Court of Nauru and to be given effect in Nauru accordingly.

36. Only two reported cases have arisen out of the jurisdiction conferred by the Nauru Act on this Court[25].  Both concerned criminal matters.  Three criminal appeals were lodged in 1998 but were later discontinued[26]. Until this case, this Court had not directly considered the validity of the Nauru Appeals Act. In Amoe v Director of Public Prosecutions (Nauru)[27] and Director of Public Prosecutions (Nauru) v Fowler[28], the Court did not refer to the issue of validity.

    [25]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29; 103 ALR 595.

    [26]Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92, (2001) at [19.13].

    [27](1991) 66 ALJR 29; 103 ALR 595.

    [28](1984) 154 CLR 627.

37. Under the terms of the 1976 Agreement, there is an appeal to this Court as of right from the exercise of original jurisdiction by the Supreme Court of Nauru, even though the Supreme Court may itself have appellate jurisdiction[29].  In addition, a trial judge of the Supreme Court of Nauru may grant leave to appeal to this Court in relation to interlocutory civil judgments in the original jurisdiction of the Supreme Court of Nauru[30].  There is no equivalent right of appeal in relation to domestic appeals[31].

    [29]1976 Agreement, Art 1A(a) and (b)(i).

    [30]1976 Agreement, Art 1A(b)(ii).

    [31]Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92, (2001) at [19.15].

    Jurisdiction conferred on this Court by the Nauru Appeals Act

38. The outcome of this application turns on the characterisation of the jurisdiction that the Nauru Appeals Act purports to confer on this Court. The description of the proceeding as an "appeal" is not decisive. A classic description of an appeal is "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below"[32].  Appellate jurisdiction, therefore, implies that the subject matter has already been instituted in and acted upon by some other court whose judgment or proceedings are to be revised[33].  However, the description of an appeal that I have quoted appears to assume that the court below lies within the same curial system as the appellate court.  And the implication to which I have referred is also inconclusive, because it does not address the situation where the "other court" lies outside the Australian curial system.

    [32]Eastman v The Queen (2000) 203 CLR 1 at 33 [104] per McHugh J, citing Attorney-General v Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209].

    [33]See Story, Commentaries on the Constitution, 5th ed (1891), vol 2 at [1761]; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 174.

39. Characterisation of the jurisdiction conferred on the Court by the Nauru Appeals Act is critical because it conditions the source of legislative power that supports the conferral of such jurisdiction. The problem is unique: on no other occasion has jurisdiction been conferred on this Court to hear "appeals" from a superior court of record of an independent sovereign nation. In this case, the problem of characterisation is a difficult one because the Nauru Appeals Act uses terminology that is consistent with the exercise of appellate jurisdiction, yet deals with proceedings that, when they come before this Court, represent the first engagement of the judicial power of the Commonwealth.

40. The literal meaning of many provisions of the Nauru Appeals Act suggests that the proceeding in this Court is an appeal in the true sense. The Nauru Appeals Act in s 5 speaks of "Appeals to [the] High Court" and provides that "[a]ppeals lie to the High Court of Australia from the Supreme Court of Nauru" in certain cases and that this Court "has jurisdiction to hear and determine appeals" in those cases[34]. Section 7 of the Act prescribes the quorum for the exercise of the "jurisdiction of the High Court to hear and determine an appeal or an application for leave to appeal under section 5". Section 8 provides for the form of judgment to be given by this Court "in the exercise of its appellate jurisdiction under section 5". The Act also provides that in the case of an appeal, where there is a difference of opinion and there is no majority of the one opinion, "the decision appealed from shall be affirmed."[35] 

    [34]Nauru Appeals Act, s 5(1) and (2).

    [35]Nauru Appeals Act, s 9(b)(ii).

41. The literal meaning of various provisions of the Nauru Appeals Act suggests therefore that the jurisdiction exercised by this Court is appellate. However, the terminology used is not conclusive. The substance of the enactment determines whether this Court is being invested with original or appellate jurisdiction. In the old Taxation Board of Review "appeals", for example, this Court held that the "appeal" involved the exercise of the Court's original jurisdiction despite the legislation referring to an "appeal"[36]. So it is necessary to examine the substantive provisions of the Nauru Appeals Act to determine whether the jurisdiction is appellate or original.

    [36]See, eg, Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 371.

42. The powers of the Court, when exercising jurisdiction under s 5(2) of the Nauru Appeals Act, are consistent with the exercise of appellate jurisdiction. Examples are the powers of the Court under s 8 of the Nauru Appeals Act to "affirm, reverse or modify the judgment, decree, order or sentence appealed from and [to] give such judgment, make such order or decree or impose such sentence as ought to have been given, made or imposed in the first instance or remit the case for re-determination by the court of first instance, by way of a new trial or rehearing, in accordance with the directions of the High Court." These powers are similar to the power conferred on this Court in the exercise of its appellate jurisdiction by s 37 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), which provides for this Court to "affirm reverse or modify the judgment appealed from, and [to] give such judgment as ought to have been given in the first instance". Moreover, the power conferred by s 37 is different from that conferred on this Court in the exercise of its original jurisdiction by s 31 of the Judiciary Act. Section 31 provides for this Court to "make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it".

43. However, the difference between the powers conferred by ss 31 and 37 of the Judiciary Act is not a conclusive indicator that the Court exercises appellate jurisdiction when it uses the power of disposition conferred by the Nauru Appeals Act. The power conferred by s 8 is analogous to the powers of a court exercising original jurisdiction when it undertakes first-instance judicial review of an administrative decision. One such power is the power of remittal for re‑determination in accordance with the directions of this Court. Further, this Court has held that s 196(1) of the 1951 consolidation of the Income Tax Assessment Act 1936 (Cth) (which was then entitled the Income Tax and Social Services Contribution Assessment Act) invoked the original jurisdiction of this Court, not its appellate jurisdiction[37].  Section 199(1) referred, in the context of the s 196 "appeal" from the Board of Review, to the power of the Court "by such order [to] confirm, reduce, increase or vary the assessment."  This suggests that the powers conferred by s 8 are consistent with the exercise by this Court of original jurisdiction.  They are not a conclusive indication that the Court is exercising appellate jurisdiction.

    [37]See, eg, Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 371.

44. The resolution of an "appeal" where the Justices sitting as a Full Court are divided in opinion as to the decision – "the decision appealed from shall be affirmed"[38] – also points to the exercise of appellate rather than original jurisdiction. It contemplates that judgment may be given notwithstanding the absence of a majority of opinion. Nevertheless, this factor is also not conclusive. In some instances, despite the absence of a majority of opinion, this Court may give judgment in the exercise of its original jurisdiction. Section 23(2)(b) of the Judiciary Act provides that, when this Court sits as the Full Court in any case other than an appeal from a court listed in s 23(2)(a) (which arguably contemplates the exercise of original jurisdiction), if the Justices are divided in opinion as to the decision to be given on any question, and the Court is equally divided in opinion, "the opinion of the Chief Justice, or if he or she is absent the opinion of the Senior Justice present", prevails.

    [38]Nauru Appeals Act, s 9(b)(ii).

45. Another matter consistent with the Nauru Appeals Act conferring appellate jurisdiction is that s 8 does not provide for the enforcement and execution of judgments, unlike ss 31 and 37 of the Judiciary Act. Counsel for the Director submitted that, if this Court is exercising original jurisdiction, then an essential characteristic of a "matter" is that there be a remedy enforceable in this Court. Counsel relied on statements by Gleeson CJ and myself in Abebe v The Commonwealth[39].  There we said that the existence of a "matter" "cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability."  We also said that "there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable."  However, courts may exercise judicial power and original jurisdiction even though no question of "enforcement", as such, arises.  Making declarations, giving advice to trustees, receivers and liquidators and granting probate of wills or letters of administration are examples[40]. In addition, s 31 of the Judiciary Act may apply to an order of this Court exercising original jurisdiction under the Nauru Appeals Act. It would apply, for example, to a costs order, and such an order could be enforced in respect of any assets of a party within the jurisdiction. Section 31 would also apply to any other order, which Nauruan law would then pick up as a "datum" and apply in Nauru. The absence of any provision for the enforcement or execution of a judgment given under s 8 is inconclusive as to whether the jurisdiction is original or appellate. At all events, it does not preclude a conclusion that this Court exercises original jurisdiction when it hears an "appeal" under s 5.

    [39](1999) 197 CLR 510 at 528 [32].

    [40]cf R v Davison (1954) 90 CLR 353 at 368.

46. Counsel for the Director submitted that, in the absence of a relevant Nauruan law, an order directing the release of Mr Ruhani would not be enforceable and there would be nothing to make such an order enforceable in this Court.  Again, however, that is not conclusive.  Section 31 has application in such a situation.  The courts of Nauru could pick up any judgment of this Court as a "datum" or a "fact" and apply it in Nauru.

47. Another factor pointing to the jurisdiction under the Nauru Appeals Act being appellate is that the Supreme Court of Nauru is a superior court of record of unlimited jurisdiction. In the exercise of its original jurisdiction, this Court has power to set aside a judgment of a superior court of record, such as the Federal Court. However, it can do so only where, as in the case of the Federal Court[41], the court is a court of limited jurisdiction.  The Supreme Court of Nauru,
    

    [41]Re Macks; Ex parte Saint (2000) 204 CLR 158.

    [42]Constitution of Nauru, Art 48(1).

    [43]Courts Act 1972 (Nauru), s 17.

    [44]See, eg, Eastman v The Queen (2000) 203 CLR 1 at 32-33 [104] per McHugh J; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 184 [49] per Gaudron J, 209-210 [135] per McHugh J.

    by contrast, is a superior court of record[42] invested with the widest jurisdiction[43], subject to some presently irrelevant exceptions.  It is a central thesis of the common law that a superior court of record is assumed to have acted within jurisdiction (because it has jurisdiction to determine its own jurisdiction).  As a result, its orders are binding until set aside on appeal.  This factor suggests that the orders of the Supreme Court of Nauru are binding unless set aside on appeal and that any review of the orders of the Supreme Court of Nauru can only be an exercise of appellate jurisdiction.  The authorities on which the Director relies in support of this contention, however, are concerned with decisions of superior courts of record within the same judicial hierarchy[44]. The review of decisions of a superior court of record of an independent sovereign nation raises quite different issues. As a result, the reasoning of the Court in those cases is not determinative of the present case and does not compel a conclusion that this Court exercises appellate jurisdiction under the Nauru Appeals Act.

48. The foregoing discussion indicates that the terminology and the substance of the Nauru Appeals Act although consistent with appellate jurisdiction are not necessarily determinative of the class of jurisdiction exercised by the Court under the Act. What, if any, provisions of that Act or other matter indicate that the jurisdiction conferred by the Nauru Appeals Act is original jurisdiction?

49. Counsel for the Director accepted that the term "original jurisdiction" in ss 75 and 76 of the Constitution may mean "the right to enter the jurisdiction of a court for the first time". And precedents in this Court support the proposition that the Court may be exercising original jurisdiction notwithstanding that the conferral of jurisdiction refers to an "appeal". Those precedents – Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd[45], Watson v Federal Commissioner of Taxation[46] and Pasini v United Mexican States[47] – were concerned, however, with the review of decisions, not from courts or magistrates, but from persons, authorities or tribunals exercising administrative powers.  In those cases, there had been no exercise of judicial power of any kind until the so-called "appeal" was brought before a court exercising the judicial power of the Commonwealth.  They invoked the original jurisdiction of the relevant court because it was the first time that the matter was brought into a court exercising judicial power.  They are different from the present case in that in this case the matter has already been brought before a superior court exercising judicial power, albeit not the judicial power of the Commonwealth.

    [45](1959) 101 CLR 652.

    [46](1953) 87 CLR 353 at 371.

    [47](2002) 209 CLR 246 at 253-254 [10]-[13] per Gleeson CJ, Gaudron, McHugh and Gummow JJ.

50. A federal court may also exercise original jurisdiction even though the enactment conferring jurisdiction uses the nomenclature of "appeal" and the decision in respect of which review is sought involved the exercise of judicial power other than the judicial power of the Commonwealth.  In Hembury v Chief of General Staff[48], for example, this Court held that the Defence Force Discipline Appeals Act 1955 (Cth) conferred original jurisdiction on the Federal Court. Original jurisdiction was conferred despite s 52(3) of that Act conferring on the Federal Court "jurisdiction to hear and determine matters arising under this section with respect to which appeals are instituted in that Court". That Act also provided that such jurisdiction was to be exercised by that Court constituted as a Full Court. The decision in Hembury turned on the review of a decision of the Defence Force Discipline Appeal Tribunal, which is a body that exercises judicial power but not the judicial power of the Commonwealth. Thus, the exercise of original jurisdiction under s 76 of the Constitution is not confined to situations involving the first exercise of judicial power.

    [48](1998) 193 CLR 641 at 653-654 [31]-[33] per Gummow and Callinan JJ, citing Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657 per Dixon CJ.

51. For constitutional purposes, engagement with the judicial power of the Commonwealth (or the Australian curial system, if the Territories are included) for the first time is a powerful indicator that original jurisdiction under s 75 or s 76 of the Constitution is being exercised. Indeed, if a matter engages the judicial power of the Commonwealth for the first time, then the exercise by a court of federal jurisdiction in relation to that matter must be original jurisdiction unless the jurisdiction is exercised in accordance with s 73 of the Constitution. It is true, of course, that, when this Court exercises jurisdiction under s 73 of the Constitution in respect of State appeals, it is exercising appellate jurisdiction although it is the first time that the judicial power of the Commonwealth is engaged. But that is because such appeals fall within s 73. When the case is not within s 73 the jurisdiction of a federal court exercising the judicial power of the Commonwealth for the first time must be original jurisdiction.

52. As no "matter" arises under the Nauru Appeals Act until proceedings are commenced in this Court, there is no exercise of the judicial power of the Commonwealth until this Court exercises its jurisdiction in respect of such proceedings. And the jurisdiction to hear an "appeal" under the Nauru Appeals Act is not jurisdiction falling within s 73 of the Constitution. Thus, despite the use of the term "appeal" and the investment of powers consistent with appellate jurisdiction, the decisive factor in determining the nature of the jurisdiction is that only when an "appeal" under the Nauru Appeals Act is lodged is the judicial power of the Commonwealth engaged. And because the proceeding is not within s 73 of the Constitution it follows that the jurisdiction conferred is original jurisdiction. The Director's argument that the Nauru Appeals Act purports to confer appellate jurisdiction, contrary to s 73 of the Constitution, must therefore be rejected.

    Source of legislative power authorising the conferral of jurisdiction on this Court

53. However, the fact that the Nauru Appeals Act invests original jurisdiction in this Court is not conclusive of its validity. A grant of original jurisdiction, to be valid, must confer jurisdiction in accordance with s 75 or s 76 of the Constitution. So, the next question for determination is whether the federal Parliament legislated in accordance with either or both of those sections when it conferred original jurisdiction on this Court to hear "appeals" from orders of the Supreme Court of Nauru.

54. Mr Ruhani contended that original jurisdiction was validly conferred under s 76(ii) or, alternatively, s 75(i) of the Constitution. Under s 76(ii), the Parliament of the Commonwealth may confer original jurisdiction on this Court "in any matter … arising under any laws made by the Parliament". Under s 75(i), the Parliament may confer original jurisdiction "[i]n all matters … arising under any treaty".

    The requirement of "matter"

55. Both ss 76(ii) and 75(i) require that there be a "matter" for the purposes of conferring original jurisdiction on this Court. This Court cannot exercise original jurisdiction if there is no "matter" in the constitutional sense. Whether or not a controversy is a "matter" is not always easy to decide. A proceeding is not itself a "matter" for constitutional purposes. Thus, the mere creation of a proceeding by legislation does not mean that the controversy to be resolved by the proceeding is a "matter … arising under" the relevant Act[49]. (If the mere creation of a proceeding could give rise to a "matter … arising under" the relevant Act, there would be no work for s 76(ii) to do. The law conferring the jurisdiction would be the law under which the "matter" would arise.)

    [49]Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 557‑558 per Taylor J. In Collins, this Court held s 31 of the Conciliation and Arbitration Act 1904 (Cth) invalid on the ground that it attempted to invest the Court of Conciliation and Arbitration with appellate jurisdiction from State courts exercising State jurisdiction.

56. In Abebe[50], Gleeson CJ and I held that the term "matter" meant "subject matter for determination in a legal proceeding", that is, the "determination of rights, duties, liabilities and obligations in a legal proceeding", and not simply "legal proceeding"[51].  Gummow and Hayne JJ identified three elements that may be used to ascertain whether there is a "matter"[52]:  "the subject matter for determination in a proceeding", the "right, duty or liability [that] is to be established" and "the controversy between the parties".

    [50](1999) 197 CLR 510.

    [51]Abebe (1999) 197 CLR 510 at 524 [24].

    [52]Abebe (1999) 197 CLR 510 at 570-571 [165].

57. In determining whether this Court has original jurisdiction under s 76(ii), it is therefore necessary to ascertain whether, firstly, the Nauru Appeals Act confers jurisdiction on this Court, and secondly, a "matter" arises under the Nauru Appeals Act. Similarly, in determining whether this Court has original jurisdiction under s 75(i), it is necessary to ascertain whether a "matter" arises under the 1976 Agreement.

58. In this case, the determination of rights, liabilities and privileges of persons by reference to the law of Nauru is the subject matter of proceedings authorised by the Nauru Appeals Act. One view is that the controversy between the parties is the controversy as to whether the judgment of the Supreme Court of Nauru is right or wrong. Another view – and I think the better view – is that the controversy is whether the Nauruan Immigration Act and regulations made under it properly supported the special purpose visa and the conditions attached to the visa, according to the law of Nauru. On this view, the controversy is whether the grant of the visa and the conditions attaching to the visa were lawful under Nauruan law. Such a question involves the proper construction of the Nauruan Immigration Act and regulations and a determination as to whether the appellant is lawfully detained under that regime. The right, duty or liability to be established is the right of Mr Ruhani not to be unlawfully detained. An alternative formulation is that the Director of Police has a duty not to detain Mr Ruhani unlawfully as a matter of Nauruan law. This right of Mr Ruhani includes the right to have the correctness of the judgment of the Supreme Court of Nauru reviewed by this Court by reference to Nauruan law. The right also includes the right to a determination of the rights, liabilities and privileges of Nauruans by reference to Nauruan law.

    Section 76(ii)

59. Two requirements must be satisfied before this Court can exercise original jurisdiction under s 76(ii). First, there must be a law conferring jurisdiction on this Court in a "matter". Second, that matter must be a "matter … arising under any laws made by the Parliament".

60. The "matter" in the present case, as I have indicated, is the determination of the right of Mr Ruhani not to be detained unlawfully under Nauruan law. The Nauru Appeals Act confers jurisdiction on this Court in respect of that matter. But the ultimate question is whether the "matter" is one "arising under any laws made by the Parliament".

61. An extensive body of case law has grown up around the question whether or not a "matter" arises under a law of the Parliament of the Commonwealth.  One of the most authoritative statements on the issue is that of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[53].  There, his Honour said that a matter arises under a federal law:

    "if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law."

    Latham CJ did not regard it as essential that the matter depend on federal law for its enforcement as well as its existence; rather, it suffices if one or the other of the criteria was satisfied.

    [53](1945) 70 CLR 141 at 154.

62. Counsel for the Director correctly conceded that the original jurisdiction of this Court under s 76 of the Constitution can be supplemented by federal legislation. However, he submitted that there was no "matter … arising under" the Nauru Appeals Act upon which a conferral of jurisdiction could validly operate. He contended that the mere creation of a proceeding does not mean that the controversy to be resolved by the proceeding is a "matter … arising under" the relevant Act[54]. In this case the proceeding is a proceeding to determine whether the Supreme Court of Nauru erred. Counsel argued that the Nauru Appeals Act assumes that the relevant rights and duties to be adjudicated in this Court depend for their existence on the law of Nauru. Applying the tests articulated by the joint judgments of Gleeson CJ and myself and Gummow and Hayne JJ in Abebe, counsel submitted that the rights of the parties arise under Nauruan law, not Australian law. As the controversy arises under Nauruan law and only under Nauruan law, the "matter" is the controversy arising under Nauruan law. Accordingly, it could not be a "matter … arising under" the Nauru Appeals Act. That Act merely creates the remedy.

    [54]Citing Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 557-558 per Taylor J.

63. It is not disputed that the rights and duties of the parties in this case are determined by reference to the terms of Nauruan law. Nor is it disputed that the terms of Nauruan law provide the basis for the subject matter of the proceeding between the parties under the Nauru Appeals Act. However, it is erroneous to suggest that the subject matter of the proceeding between the parties depends only on, and is wholly defined by, the law of Nauru.

64. Sections 5(1), 5(2) and 8 of the Nauru Appeals Act provide a right to institute proceedings in this Court, confer jurisdiction on this Court to hear and determine such proceedings and create a "matter" or controversy between the parties under federal law to be determined by reference to the law of Nauru. Section 5(1) of the Nauru Appeals Act by implication confers a right to institute proceedings in this Court in certain instances, as it provides that "[a]ppeals lie to the High Court of Australia from the Supreme Court of Nauru". Section 5(2) confers jurisdiction on this Court to "hear and determine" proceedings brought under s 5(1). Section 8 confers remedies, the section empowering the Court to "affirm, reverse or modify" the judgment or order of the Supreme Court of Nauru, to "give such judgment [or] make such order … as ought to have been given [or] made … in the first instance" and to remit the case for re‑determination in accordance with the directions of this Court. Although s 8 does not expressly say so, by necessary implication it directs this Court to apply the law of Nauru to determine the proceedings brought under s 5(1). To this end, the section operates to give Nauruan law the force of federal law for the purpose of determining the controversy. A "matter" therefore arises under a federal law for the purpose of s 76(ii) because the right or duty in question in this Court – ie, the right of Mr Ruhani not to be detained unlawfully and the duty of the Director of Police to detain persons lawfully – owes its existence to the Nauru Appeals Act.

65. The subject matter of proceedings in respect of which this Court is invested with jurisdiction is defined by the Nauru Appeals Act. That Act identifies Nauruan law as the factum by reference to which the Act operates and Nauruan law as the law to be applied in the resolution of proceedings brought under the Act. This construction of the Act is supported by the words in s 8 that the Court may "give such judgment [or] make such order … as ought to have been given [or] made … in the first instance" (emphasis added). They imply that the Nauru Appeals Act – which is federal law – requires this Court to apply the terms of Nauruan law. The Act does not provide for this Court to give such judgment or make such order "as it deems fit", for example. Instead, the direction to give such judgment or make such order as ought to have been given or made in the first instance requires this Court to apply the law of that forum to determine the proceeding, which, in this case, is Nauruan law.  The provision thus impliedly directs the Court to apply the law of Nauru in determining the controversy.

66. Consequently, the Nauru Appeals Act has the effect of applying Nauruan law as federal law. By necessary implication, for the purpose of the "appeal", the Act gives effect to the law of Nauru as federal law. Nauruan law is applied to resolve the subject matter of the proceeding brought into this Court under the Nauru Appeals Act and, for the purposes of resolving the proceeding, Nauruan law is given the force of federal law. Nauruan law thus forms the factum that gives rise to federal rights. They include the right to have the correctness of the judgment of the Supreme Court of Nauru reviewed by this Court by reference to Nauruan law and the right to a determination of the rights, liabilities and privileges of Nauruans by reference to Nauruan law. The Court did this in Amoe v Director of Public Prosecutions (Nauru)[55] and Director of Public Prosecutions (Nauru) v Fowler[56] when it applied Nauruan criminal law to resolve appeals brought under the Nauru Appeals Act to this Court. There was no objection to jurisdiction in those cases. By giving Nauruan law the force of federal law for the purposes of a proceeding under the Nauru Appeals Act, that Act gives rise to the controversy and, hence, a "matter" for the purpose of s 76(ii).

    [55](1991) 66 ALJR 29; 103 ALR 595.

    [56](1984) 154 CLR 627.

67. Several decisions of this Court – Hooper v Hooper[57], LNC Industries Ltd v BMW (Australia) Ltd[58], The Commonwealth v Evans Deakin Industries Ltd[59] and Western Australia v The Commonwealth (Native Title Act Case)[60] – support this construction of the Nauru Appeals Act.

    [57](1955) 91 CLR 529.

    [58](1983) 151 CLR 575.

    [59](1986) 161 CLR 254.

    [60](1995) 183 CLR 373 at 484-485.

68. In Hooper, this Court rejected a challenge to the validity of the Matrimonial Causes Act 1945 (Cth) ("the Matrimonial Causes Act"). That Act purported to invest State and Territory courts with certain jurisdiction in relation to matrimonial causes and directed those courts to exercise the invested jurisdiction in accordance with the law of the State or Territory in which the person instituting the proceedings was domiciled. Part III of the Matrimonial Causes Act related to the "[i]nstitution of matrimonial causes by certain persons domiciled in Australia". Section 10(1) provided that a person resident but not domiciled in a State or Territory could "institute proceedings in any matrimonial cause in the Supreme Court of" the State or Territory of residence. Section 10(2) invested the Supreme Court of each State and Territory with federal jurisdiction to hear and determine such proceedings. Section 11 provided that the Supreme Court of the State or Territory was to exercise any jurisdiction with which it was invested under s 10 in accordance with the substantive law of the State or Territory in which the person instituting the proceedings was domiciled.

69. This Court held that Pt III of the Matrimonial Causes Act gave the State laws the force of federal law. It also held that that Part conferred substantive rights, which, when put in suit, gave rise to a "matter … arising under" a law of the Parliament within the meaning of s 76(ii). There was a clear "enactment" of a substantive law of the Commonwealth by the adoption of the relevant State law for the purpose of the suit, and a direction to the forum to apply the substantive law of that State[61]:

    "In order to appreciate the real effect of Pt III of the Act, it is necessary to read s 10(1) with s 11, and s 10(2) is then seen as investing the Supreme Courts with the jurisdiction necessary to give effect to rights which are really created by s 10(1) and s 11. Section 10(1) says (to put it shortly) that, where a person is domiciled in one State but has been resident for one year in another State, he or she may institute a 'matrimonial cause' in the Supreme Court of that other State. This, in form, merely authorizes certain persons to take proceedings of a character defined in s 3. As a matter of substance, however, it confers rights, though it does not tell us precisely what those rights are. It is s 11 that tells us precisely what those rights are. They are the rights which the person mentioned in s 10(1) has according to the law of the State in which he or she is domiciled. A substantive 'law of the Commonwealth' is thus enacted, and, whenever a 'matrimonial cause' is instituted putting any of those rights in suit, there is a 'matter' which 'arises' under that law of the Commonwealth. And 'with respect to' that 'matter' State courts may be lawfully invested with federal jurisdiction under s 77(iii) of the Constitution.

    It is no answer to the above analysis to say that the right put in suit when a 'matrimonial cause' is instituted under the Act is a right created by State law – by the law of the State of the domicil. What the Act does is to give the force of federal law to the State law. The relevant law is administered in a suit instituted under the Act not because it has the authority of a State, but because it has the authority of the Commonwealth. For the purposes of the suit it is part of the law of the Commonwealth. The Act might, in s 11, have defined the rights to which effect was to be given in 'matrimonial causes' by enacting a system of its own. Or it might have defined those rights by reference to the law of England or the law of New Zealand or the law of one particular Australian State. The fact that it chose to adopt the law of the State of the domicil in each particular case cannot affect the substance of the matter."

    [61]Hooper (1955) 91 CLR 529 at 536-537.

70. Nothing turned on the fact that the rights to which effect was to be given in "matrimonial causes" were those created by State law.  The Court explicitly recognised that the Parliament might have defined those rights by reference to the laws of another polity, for example, the law of England or New Zealand.  This obiter dictum supports the conclusion that the fact that the rights to which effect is given under the Nauru Appeals Act are defined by reference to the law of Nauru does not preclude the Act from operating to give those laws the force of federal law. A controversy arising under those laws therefore arises under the Nauru Appeals Act for the purposes of the conferral of jurisdiction on this Court.

71. One difference between Hooper and the present case is that the Matrimonial Causes Act had the effect of changing rights in the provision that permitted or authorised its application. In contrast, the Nauru Appeals Act actually creates a right in the provision that permits or authorises its application. This difference is not significant. If legislation conferring rights is otherwise supported by a head of legislative power, the Parliament can create those rights by reference to the law of another polity.

72. Unlike the Matrimonial Causes Act, the Nauru Appeals Act does not expressly direct the court in which jurisdiction is invested to apply the substantive law of a particular forum. The Nauru Appeals Act does not contain a provision that is directly comparable with s 11 of the Matrimonial Causes Act. The direction to the relevant State or Territory court to exercise the invested jurisdiction in accordance with the law of the State or Territory in which the person instituting the proceedings is domiciled was a clear adoption of the substantive law and a direction to the forum to apply the substantive law of that State or Territory. However, as I have indicated, as a matter of implication, the Nauru Appeals Act adopts the substantive law of Nauru as the substantive law by reference to which the rights and duties of the parties are to be ascertained.

73. The Director contended that Hooper differed from the present case in that this case does not concern the application of, in effect, a choice of law rule. Rather, it involves reviewing the law of Nauru. According to this argument, the controversy remains one arising under the law of Nauru and not one arising under the law of the Commonwealth. However, on its proper construction, s 8 of the Nauru Appeals Act, by necessary implication, gives effect to the law of Nauru as federal law. The controversy is not simply one of reviewing or applying the law of Nauru or reviewing the correctness of the decision of the Supreme Court of Nauru. Such a conclusion necessarily follows from an examination of the powers conferred on this Court under s 8 of the Nauru Appeals Act to determine proceedings brought under the Act. The broad powers conferred by s 8 suggest that the Court does more than simply review the correctness of the decision of the Supreme Court or apply the law of Nauru. The Court is instead directed to determine the underlying controversy between the parties – in this case, the lawfulness of the appellant's detention.

74. In LNC Industries Ltd, this Court held that a claim in a contractual dispute constituted a "matter" arising under a law of the Commonwealth in respect of which federal jurisdiction was engaged.  The claim was framed as a claim for damages for breach of contract or for relief for breach of trust.  It was common ground that such a controversy may arise under State law and relief may be available under State law.  In this instance, however, the subject matter of the claim owed its existence to federal law.  The rights and liabilities of the parties which could become the subject of a contract or trust existed only because of the operation of federal law.  The relevant right was the right of a licensee who was permitted under the terms of the licence to import a certain number of motor vehicles to transfer that quota.  Federal law and regulations established the licence and quota regimes.  For constitutional purposes, a "matter" existed because the subject matter of the contracts and the action arose under and existed only by reason of the provisions of certain federal regulations and the federal Act under which the regulations were made.  In their joint judgment, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said[62]:

    "When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law.  A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law.  The subject matter of the contract or trust in such a case exists as a result of the federal law."

    [62]LNC Industries Ltd (1983) 151 CLR 575 at 581.

75. Counsel for the Director submitted that, as the content of the claim in LNC Industries Ltd derived from the regulation, it showed that some "federal" controversy was required for a matter to arise.  However, as Hooper demonstrates, a "matter" owes its existence to federal law if the subject matter of the proceeding exists only because of the federal law.  In LNC Industries Ltd, there could be no contract between the parties about the treatment of the import quotas in the absence of the federal regulations.  But it does not follow that, for the purposes of identifying a "matter" that owes its existence to federal law, that subject matter must itself be a creature of federal law.  If federal law adopts the law of another forum and gives effect to rights and liabilities under that law, there is a "matter … arising under" that law.  Investing a court of federal jurisdiction with jurisdiction to determine a proceeding involving those rights and liabilities is investing it with jurisdiction in a "matter" arising under federal law.

76. Evans Deakin Industries Ltd concerned a claim brought by a sub‑contractor against the Commonwealth under the Subcontractors' Charges Act 1974 (Q). This Court held that, although s 64 of the Judiciary Act "does not subject the Commonwealth to the operation of State laws", it enabled "the provisions of State law [to] be the measure by reference to which rights and obligations are ascertained in suits to which s 64 applies"[63].  Evans Deakin Industries Ltd is an example of the assimilating capacity of ss 64 and 79 of the Judiciary Act. Those sections may apply in a way that gives rise to a controversy by reference to a law, in that case a State law, that is picked up and applied by operation of the federal Act. The result is an exercise of federal jurisdiction applying federal law. Evans Deakin Industries Ltd differs from the present case because the present case applies foreign law, but the effect is the same in character.

    [63]Evans Deakin Industries Ltd (1986) 161 CLR 254 at 268 per Brennan J, see also at 264 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.

77. In the joint judgment in the Native Title Act Case[64], Mason CJ, Brennan, Deane, Toohey and Gaudron JJ and I held: 

    "There can be no objection to the Commonwealth making a law by adopting as a law of the Commonwealth a text which emanates from a source other than the Parliament[65].  In such a case the text becomes, by adoption, a law of the Commonwealth and operates as such."

    The difference between the Native Title Act Case and the present case is that in this case the Nauru Appeals Act purports to "adopt" Nauruan law, rather than the common law or the statute law of a State or Territory. However, as Hooper suggests, nothing turns on this point of distinction.

    [64](1995) 183 CLR 373 at 484-485.

    [65]Hooper v Hooper (1955) 91 CLR 529 at 536-537. The law of the States that was picked up as a law of the Commonwealth in that case was statute law, not common law. Where a State statute is thus picked up and enacted as a law of the Commonwealth, the common law which has affected the construction of the text or has attached doctrines to its operation continues to have the same effect on the law of the Commonwealth as it has or had on the law of the State subject to contrary provision.

78. Contrary to the submission of the Director, the finding that by necessary implication s 8 gives the force of federal law to Nauruan law does not create a risk that there would be no coincidence between the determination of this Court and the determination of the Supreme Court of Nauru.  It is also incorrect to assume that this Court would not be making such order as ought to have been made below, but rather would be making such order as ought to be made under this adopted law of Australia.  There is no disconformity between the law applied in the proceeding before this Court and the law applied in the Supreme Court of Nauru, because there is only a single law applied in this forum as federal law, and that is the law of Nauru.  Reasonable minds may differ as to the interpretation and application of that law, but the body of law remains constant.

79. Likewise, there is no risk that this Court would be required in the application of the law of Nauru to exercise jurisdiction that is fundamentally inconsistent with the exercise of federal jurisdiction or the discharge of the duties of a federal judicial officer.  If a party brought an "appeal" to this Court in relation to Kable-type legislation[66], for example, this Court would refuse to hear it on the basis that the power that the Court is being asked to exercise is incompatible with the integrity, independence and impartiality of this Court. In addition, such an "appeal" may involve a question of Nauruan constitutional law, in which case an appeal would not lie to this Court under the Nauru Appeals Act[67].

    [66]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

    [67]Nauru Appeals Act, s 5 and Sched, Art 2(a).

80. It is also immaterial for constitutional purposes that the Nauru Appeals Act, by operation of ss 5(1), 5(2) and 8, simultaneously creates a "matter", invests this Court with jurisdiction and provides for a remedy[68].  There can be no dispute that the Parliament is empowered to create a right and provide a remedy at the same time as it invests a court with jurisdiction in the matter.  That much is clear from the decisions of this Court in Barrett and Hooper.  Latham CJ acknowledged in Barrett that[69]:

    "[I]t is within the power of the Commonwealth Parliament, when legislating upon a subject matter within its constitutional competence, to provide that a court may make orders which are incidental to carrying into effect the legislative scheme, and that a proceeding to obtain such an order is a matter arising under the Federal law.  A right is created by the provision that a court may make an order, and such a provision also gives jurisdiction to the court to make the order."

    Endorsing the approach of Latham CJ, in Hooper this Court accepted that a federal law may at once create a right and provide a remedy by providing that a person may take proceedings in a particular court to obtain a remedy[70].

    [68]See Barrett (1945) 70 CLR 141 at 165 per Dixon J; Hooper (1955) 91 CLR 529 at 535-536.

    [69](1945) 70 CLR 141 at 155.

    [70](1955) 91 CLR 529 at 535-536.

81. It is also not decisive against the existence of a "matter … arising under" a law of the Commonwealth that the Nauru Appeals Act does not expressly provide for enforcement. Unlike the legislation considered in Hooper and Pasini, the Nauru Appeals Act does not expressly provide for the enforcement or execution of judgments or orders. Nevertheless, as Latham CJ acknowledged in Barrett, a matter may exist if the right or duty in question owes its existence to federal law or depends upon federal law for its enforcement. In any event, there is nothing to suggest that the Judiciary Act does not apply in relation to the enforcement in Australia of judgments or orders of this Court in proceedings brought under the Nauru Appeals Act. For example, a costs order may be enforceable within Australia against the assets of a party within the jurisdiction. It is true that the enforcement of some rights and liabilities ultimately depends on Nauruan law. To this end, Art 4(2) of the 1976 Agreement provides for orders of this Court "to be made binding and effective in Nauru." Section 51 of the Appeals Act 1972 (Nauru) provides for judgments and orders of this Court to "have force and effect in Nauru as if they were the judgment and orders of the Supreme Court [of Nauru]" and to be given effect in Nauru accordingly.  But there has never been any objection to this Court making orders with respect to matters that can only be enforced out of the jurisdiction.  Typically, there is some mutual enforcement or recognition provision, but even the absence of such a provision does not prevent this Court from exercising jurisdiction.

82. As a result, the Nauru Appeals Act is a valid enactment of the federal Parliament that confers original jurisdiction on this Court in respect of a "matter" within the meaning of s 76(ii) of the Constitution. Having reached this conclusion, it is therefore unnecessary for me to consider whether original jurisdiction is also conferred on this Court under s 75(i).

83. For these reasons, I joined in the order disallowing the Notice of Objection to Competency.  The Director should pay the costs of the proceedings in respect to that objection.  But I see no reason for making any of the additional orders sought by Mr Ruhani.  There is no reason for thinking that the Director will not meet the costs order.  In those circumstances, there is no ground for adding either Nauru or the Commonwealth as a party.  And there is no case for an order for indemnity costs.  The Director had a powerful argument to put in support of his competency objection.  It was an objection that was well taken – although it was unsuccessful – in adversary litigation.  Because that is so, it would be contrary to the practice of this Court to make an order for the payment of indemnity costs.

277. It can also be seen, as his Honour pointed out in the passage quoted, that the High Court had original jurisdiction in any event because the claim for compensation was against the Commonwealth, and, as a matter to which the Commonwealth was a party, was one that could be brought in the original jurisdiction under s 75(iii) of the Constitution. It was only necessary for Dixon J to identify with precision the nature of the jurisdiction to be exercised because the regulations were not on their face apt for the disposition of proceedings in the High Court.

278. It is the presence and form of Ch III of the Constitution that dictate the special tenderness that the Parliament and this Court have generally, but not invariably, shown[224] for the due exercise of federal judicial power by courts and not otherwise in this country.  Elsewhere, and in past times, the drawing of a distinction between a court of law and a court of other official business was often of little importance.  In Machinery of Justice, Professor Jackson makes this point[225]: 

     "A 'court' was a place for doing business of a public nature, judicial or otherwise, and wherever we find places with any peculiar standing (Royal Forests, Staple Towns, Cinque Ports) or certain industries (lead mining in the Mendips, tin mining in Devon and Cornwall) or classes of men differentiated from the general population (merchants, soldiers, ecclesiastics) we find historically a special body of law with special courts." 

     [224]For more than fifty years, until the Boilermakers' case (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254), the Court of Conciliation and Arbitration and its like predecessors exercised both arbitral and judicial power as if they were Ch III courts, and, in regarding the judges of the Family Court (R vWatson; Ex parte Armstrong (1976) 136 CLR 248), and of the Federal Court (R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113) as amenable to writs issued under s 75(v), this Court treated them as "officers" of the Commonwealth rather than as judges of courts from which appeals lay although Ch III itself in terms distinguishes between judges and courts on the one hand, and "officers" on the other.

     [225]Jackson's Machinery of Justice, 8th ed (1989) at 107.

279. Over time various other bodies and offices came to be established such as the General and Special Commissioners of Income Tax (in 1803) and the Board of Railway Commissioners (in 1846).  In the latter year, the county courts of England were established by the County Courts Act as judicial tribunals of less formality and rigour than the High Courts of Westminster.  They were intended to achieve[226]:

     "a system of local civic tribunals adapted to the needs of the great masses of the population and the maximum convenience of forum, simplicity of procedure, suitors being able to obtain relief and defend themselves ... with summary determination and moderation of expenses …"

     [226]See Wraith et al, Administrative Tribunals, (1973) at 28.

280. Review by the courts in its current form and the need therefore to distinguish it from the process by which the first decision was made, are largely products of the twentieth century as a result, among other things, of increased state involvement in many areas of public welfare.  A decision as to the nature of the jurisdiction to be exercised by the courts in undertaking the review became important essentially because it affected the nature of the relief, whether by way of prerogative writs or statutory remedies, that could be granted.

281. At federation however, the proliferation of administrative and quasi-judicial tribunals lay in the future, although of course the founders were conscious of the need to distinguish in the Constitution, as they did, between executive and judicial power. One of their concerns was to define, with as much precision as possible, the scope of each of federal original and federal appellate jurisdiction and to provide a remedy for unlawful conduct by officers of the new federal polity (s 75(v)). A second concern was to give effect to another autochthonous expedient[227], of the conferring upon a final appellate and constitutional court, of a substantial original jurisdiction as well.  A further concern was to ensure that original federal jurisdiction would be exercised in truly federal matters only, without trespass upon State jurisdiction[228].  No concern or intention on the part of the founders is to be discerned in the language of the debates at the Constitutional Conventions, or in Ch III itself, to transmogrify an appeal into an exercise of original jurisdiction.  The appellant's submission that the first contact of a "case" with the High Court involves an exercise of original jurisdiction is plainly wrong.  An appeal from a Supreme Court of a State, or the Federal Court is exactly that, an appeal, even though the appeal is the first encounter that the case has with the High Court.   

     [227]cf R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

     [228]It is now well established in this Court that the Commonwealth may not confer State jurisdiction upon a federal court:  Gould v Brown (1998) 193 CLR 346.

282. It is inapt and wrong to seek to characterize the jurisdiction said to be exercisable here as original jurisdiction for other reasons.  Connell CJ in hearing the appellant's application for habeas corpus was sitting as a judge of a court, exercising judicial power.  Indeed, the relief sought has been regarded for hundreds of years as uniquely appropriate for the prevention by the courts of excesses and abuses of the Executive and its own administrative bodies and officers.  It is the courts which grant the relief against administrative bodies; administrative bodies do not grant it against themselves.  We cannot accept that a court invited to reverse the judgment of another court which has dismissed an application for relief of that kind, wherever the court may have sat, would be exercising original jurisdiction.  The judgment of the Supreme Court of Nauru cannot be ignored.  It would be an affront to all elementary principles of comity to do so.  The Supreme Court of Nauru is a real court.  The judgment of its Chief Justice is, in every respect, form, substance, application of principle, judicial method, and, it should be emphasized, effect and operation, a judgment of a court, non-compliance with which would be visited in Nauru with all the consequences and sanctions available to any duly established court.  To regard an evaluation of that process by a court constituted by several judges of another final court, albeit of a different jurisdiction, proceeding in every relevant respect as if hearing an appeal, as an exercise in original jurisdiction, would be to give effect to a fiction.  That the jurisdiction purportedly conferred must be, if anything, appellate, appears most clearly from s 8 of the domestic Act.  Courts exercising a jurisdiction to modify a sentence imposed in a criminal jurisdiction, or order a retrial or a new trial, cannot possibly be said to be exercising an original jurisdiction.

283. Any suggestion that the jurisdiction purportedly exercisable by the Court under the domestic Act is original jurisdiction is comprehensively contradicted by the express language of other parts of it, beginning with its short title which is totally inapt for the exercise of anything but appellate jurisdiction. The words of s 5(1) are "[a]ppeals lie to the High Court ... in cases where the Agreement provides that such appeals are to lie". Each of ss 5(1), (2), (3), 7 and 10(2) and (3) refers in terms to "appeal" or "appeals".

284. Section 8 further refers to the giving of judgment in the exercise of an appellate jurisdiction, that ought to have been made "in the first instance".  And s 9 makes the sort of provision that is necessary and conventional to resolve a difference of opinion in an appellate court.

285. Every historical and semantic indication is of an intention to confer a genuine appellate jurisdiction.  The same is true of the Appeals Act of Nauru.  The use of the language of appeal there is plainly deliberate and not a mindless adoption of the nomenclature of earlier enactments.  There is not the slightest suggestion in the domestic Act that the jurisdiction intended to be conferred on this Court is of an original kind.  Presumably, in the proceeding within original jurisdiction which the majority say is now to take place, the appellant would seek to have the matter entirely reheard as if there had not already been a trial in Nauru despite that the reason for recourse to this Court is that there has been a trial and a judicial decision in Nauru.  In some unexpressed way, this Court is now, it is urged, bound to proceed as if such a decision has not been made and no trial has taken place.  To proceed in that way would be to proceed in the teeth of the most clearly expressed language possible in the domestic Act.  We can no more accept that than we can that the Supreme Court of Nauru is to be treated as a foreign equivalent to an administrative and strictly non-judicial emanation of the federal Parliament. 

286. It is inconceivable that the founders would have contemplated, and sought to make constitutional provision for, the exercise of an appellate or an original jurisdiction of the High Court, over the citizens or subjects of another country, nation or colony, that was not a territory. At federation, the Privy Council was the final avenue of appeal for all of the colonies and territories of the British Empire and had no judicial role to play in relation to foreign countries. It is unthinkable that the founders would have considered it necessary, or desirable, to make provision for the bringing of appeals to the High Court from another dominion or colony of the Empire, let alone from a foreign country. That they did not do so in making the constitutional settlement with the United Kingdom and in drafting the Constitution in the form that they did appears from the form of Ch III itself which is silent on these matters. An expansive interpretation of the Constitution is one thing: an interpretation which would confer upon an Australian court, even the High Court, an appellate jurisdiction over the citizens of, and a sovereign foreign power itself, whether as a result of the making of a treaty or otherwise, would be to go far beyond expansiveness and is much further than we are prepared to go.

287. How is this Court to proceed henceforth in this matter?  It can only do so by embarking on an elaborate fiction that the "appeal" is not an appeal.  Why should the parties not give evidence if this is to be an exercise of original jurisdiction?  May they rely upon the Nauruan laws of evidence?  Must they be proved?  Will not the substantive law be the law of Nauru?  It is an irony that the latest statement of that, and its application to the facts proved in this case in Nauru, are to be found in the judgment of Connell CJ.  Why should this Court take a different view of those when this Court is exercising original jurisdiction?  Are there to be pleadings?  What about subpoenas?  How will this Court be able to enforce the service of and obedience to them in Nauru?  The answer to all of these questions must be whatever the Court chooses to invent for neither the Judiciary Act 1903 (Cth), the Rules of Court, nor the Constitution supplies any answers.

288. The jurisdiction intended to be conferred by the domestic Act is appellate and appellate only. This Court should not construe the treaty to give effect to a result contrary to its language and purpose. Section 73 of the Constitution defines in a clearly exclusive way the appellate jurisdiction of the Court[229]. Not surprisingly its authors made no attempt to embrace within it the legal affairs of any other sovereign foreign nation. It is significant that the opening paragraph of s 73 empowers the Parliament to prescribe exceptions to, and regulations for the exercise of the appellate jurisdiction of the Court, but not additions. It may be, we express no concluded view on this, that the Commonwealth could, if it and Nauru were so minded, establish a special tribunal under various heads of constitutional power[230], to hear Nauruan appeals but that would be a very different measure from the impermissible one attempted here, of vesting Nauruan appellate jurisdiction in the High Court, a Ch III court. 

     [229]Re Wakim; Ex parte McNally (1999) 198 CLR 511.

     [230]But see R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 269 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

289. No matter how the jurisdiction purported to be conferred may be characterized there are further reasons why the objection to competency must be upheld.  Nauru, by objecting to competency has taken the stance that it is not to be bound by the decision of this Court in this country.  Australia is not likely to send a gun boat to the Republic to enforce obedience to a subpoena or a decision of this Court.  And, without the real and effective co-operation of Nauru, a decision of this Court will be unenforceable.  The remedy sought here is against the executive of a foreign country in a foreign country.  As to that, Halsbury's Laws of England puts the matter this way[231]:

     "Jurisdiction of a state is strictly territorial in the sense that a state cannot exercise its powers or authority in the territory of another state or elsewhere outside its territory except by virtue of a permissive rule derived from international custom or from a treaty or convention.  Thus, a state is not entitled to use physical force in the territory of another state to assert its alleged rights.  Nor is it entitled to exert peaceable measures on the territory of any other state by way of enforcement of its national laws without the consent of that other state, by way for example of service of documents, police or tax investigations, or by the performing of notarial acts." (footnotes omitted)

     [231]4th ed, vol 18, par 1532.

290. In Abebe v The Commonwealth[232] Gleeson CJ and McHugh J emphasized the critical element of enforceability[233]:

     "The existence of a 'matter', therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability.  That does not mean that there can be no 'matter' unless the existence of a right, duty or liability is established.  It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question.  It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable." (emphasis added)

     [232](1999) 197 CLR 510.

     [233](1999) 197 CLR 510 at 528 [32].

291. This is consistent with the stance taken by the Court from its establishment.  In Waterside Workers' Federation of Australia v J W Alexander Ltd[234], Isaacs and Rich JJ said this:

     "But the essential difference [between arbitral and judicial power] is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted ..."

     [234](1918) 25 CLR 434 at 463.

292. In Rola Co (Australia) Pty Ltd v The Commonwealth[235], Latham CJ (with whom McTiernan J agreed) was of the view that a committee of reference did not exercise judicial power because it did not have any power to enforce its own determination.  With respect to the definition of judicial power given by Griffith CJ in Huddart,Parker & Co Pty Ltd v Moorehead[236] Latham CJ said[237]:

     "If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then, but only then, according to the definition quoted, all the attributes of judicial power are plainly present.  I refer to what I say more in detail hereafter, that the Privy Council, in the Shell Case[238] ... expressly held that a tribunal was not necessarily a court because it gave decisions (even final decisions) between contending parties which affected their rights."

     [235](1944) 69 CLR 185.

     [236](1909) 8 CLR 330 at 357.

     [237](1944) 69 CLR 185 at 199.

     [238]Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530; [1931] AC 275.

293. Hooper's case, upon which the appellant relies, and to which we said we would return, is of no assistance to the appellant.  There Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ said this[239]:

     "It is no answer to the above analysis to say that the right put in suit when a 'matrimonial cause' is instituted under the Act is a right created by State law – by the law of the State of the domicil. What the Act does is to give the force of federal law to the State law. The relevant law is administered in a suit instituted under the Act not because it has the authority of a State, but because it has the authority of the Commonwealth. For the purposes of the suit it is part of the law of the Commonwealth. The Act might, in s 11, have defined the rights to which effect was to be given in 'matrimonial causes' by enacting a system of its own. Or it might have defined those rights by reference to the law of England or the law of New Zealand or the law of one particular Australian State. The fact that it chose to adopt the law of the State of the domicil in each particular case cannot affect the substance of the matter."

     [239](1955) 91 CLR 529 at 536-537.

294. These points should be made about the passage which we have quoted.  The reference to the authority of the Commonwealth is no minor matter.  Because the events with which the case and the relevant federal enactment were concerned were ones occurring within, and in respect of persons amenable to the authority of, the Commonwealth, whatever decision was made, was immediately enforceable by and within the Commonwealth.  To put the matter another way, the Commonwealth was in a position to enforce the immediate right, duty or liability held to exist by the Court.  That is not to say that suits may not be entertained by a federal court, or this Court, simply because the decisions and judgments may be in respect of matters having an extra-territorial effect or operation.  But no one has suggested in this case that this Court in entertaining an "appeal" from the Republic of Nauru would be exercising some form of Australian extra-territorial jurisdiction, and nor could any such suggestion be made.  No state can exercise its powers or authority in the territory of another state or elsewhere outside its territory unless by treaty, convention or international custom, the other state has assented or may be taken to have assented to the exercise of the relevant power or authority.  A state may not use physical force in the territory of another state to give effect to asserted rights and may not otherwise impose sanctions to give effect to its laws in another state.  Consent is always required, and it may safely be assumed by reason of the stance that the respondent takes here, that it would not assent in any way to the enforcement of a writ of habeas corpus were this Court to entertain this "appeal", allow it, and order that the decision of the Supreme Court of Nauru be set aside and that a writ of habeas corpus issue.  In other words, neither this Court nor the Commonwealth has here a capacity to fulfil an essential judicial function referred to in Brandy v Human Rights and Equal Opportunity Commission[240], of enforcing decisions (in Nauru), albeit that the domestic Act purports to confer a right to come to the Court.

     [240](1995) 183 CLR 245 at 268-269 per Deane, Dawson, Gaudron and McHugh JJ.

295. In the absence of willingness on the part of the respondent to accept and give effect to an order of this Court, whether in its original or appellate jurisdiction, a decision of this Court would be without efficacy of any kind.  Even though courts may and do nowadays make declarations without other ancillary orders, they do not do so unless the declarations will have some real utility or will produce foreseeable consequences.  This appears clearly enough from what was said by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission[241]:

     "It is now accepted that superior courts have inherent power to grant declaratory relief.  It is a discretionary power which '[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.'[242]  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions[243].  The person seeking relief must have 'a real interest'[244] and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'[245] or if 'the Court's declaration will produce no foreseeable consequences for the parties'[246]."

     Courts do not make declarations of the law divorced from an ability to administer and give effect to that law.  A decision in this "appeal" would be no more than declaratory in effect, and could not be administered and enforced without the active and co-operative intervention of the respondent in Nauru.

     [241](1992) 175 CLR 564 at 581-582.

     [242]Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J.

     [243]See In re Judiciary and Navigation Acts (1921) 29 CLR 257.

     [244]Forster (1972) 127 CLR 421 at 437 per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign TradeLtd [1921] 2 AC 438 at 448 per Lord Dunedin.

     [245]University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J.

     [246]Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J, see also at 189 per Aickin J; 18 ALR 55 at 69, 71.

296. Nothing turns on the exercise, on two occasions, of the appellate jurisdiction of this Court, in Nauruan appeals[247].  Decisions in which the point has not been taken and the different positions not argued, have no more binding force than, for example, the suggestion of McHugh J in argument in Re Wakim; Ex parte McNally[248] that the domestic Act might be invalid.

     [247]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29; 103 ALR 595.

     [248]Re Wakim; Ex parte McNally transcript of proceedings, 2 December 1998 at 4979.

297. Another submission of the appellant is that the "appeal" arises under a treaty within the meaning of s 75(i) of the Constitution. We would reject that argument also. Here there are two matters. The first and the substantive one raises the question whether the appellant is entitled to a writ of habeas corpus to be enforced in Nauru. The other is whether the appellant is entitled to come to this Court, effectively to have the domestic Act and the Constitution construed. Self-evidently, the first of the matters does not arise under a treaty. It arises under Nauruan law exclusively. One aspect of the other matter touches upon but does not arise under the treaty. That is the construction of the domestic Act, and although it may arise out of an Act enacted to give effect to the treaty, that is a different matter from something arising under the treaty itself. Even if it did however, it is not a matter which, if resolved in the appellant's favour, would entitle him to relief enforceable under the treaty and in Nauru.

298. It is not entirely clear whether the appellant was also in some way seeking to contend that the domestic Act was validly made under s 51(xxix), the external affairs power, or s 51(xxx), the Pacific islands power of the Constitution, or a combination of them. Section 51(xxix) has nothing to say about the judicial power for which Ch III makes provision. The other head of power, the Pacific islands power, was conferred for reasons entirely unrelated to judicial power[249] and has nothing to say about it either.  As we have mentioned, perhaps the Parliament could legislate for the establishment of an appellate tribunal for the Pacific or part of it, with the active support of nations of the region, but such a tribunal would not and may not be the High Court, or a Ch III court of the Commonwealth.

     [249]For example a vulnerability to other nations seeking to establish Pacific empires and the acquisition, use, residence and repatriation of Pacific island labour.

299. We would uphold the objection to competency.  The appellant should pay the respondent's costs of the objection.  For the reasons given by the majority, we agree that the notice of motion filed by the appellant and dated 7 December 2004 should be dismissed, and that the appellant should pay the costs of the motion.