Re Bolton; Ex parte Beane [1987] HCA 12

Re Bolton; Ex parte Beane [1987] HCA 12

Part III of the Defence (Visiting Forces) Act 1963 (Cth), properly construed, only authorizes the apprehension and handover to foreign military authorities of persons who deserted or absented themselves without leave from a visiting force present in Australia. There was no statutory authority for the arrest and detention of Mr. Beane, who was not a member of a visiting force in Australia when he went absent without leave. Therefore, his arrest and detention were unlawful and he is entitled to be released.

Jurisdiction
Australia
Procedural Posture
Application for Habeas Corpus and Prohibition / Final Judgment and Orders
Outcome
Application granted. Prosecutor to be discharged from custody. Order nisi for prohibition made absolute. Costs to be paid by respondents.
Legal Topics
['habeas Corpus' 'extradition' 'personal Liberty' 'statutory Construction' 'judicial Power' 'visiting Forces' 'international Law Immunity']
['constitutional Law' 'administrative Law' 'defence Law'] ['habeas Corpus' 'extradition' 'personal Liberty' 'statutory Construction' 'judicial Power' 'visiting Forces' 'international Law Immunity']

Case Brief

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Procedural Posture

Application for Habeas Corpus and Prohibition / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the arrest and detention of Mr. Beane were authorized under s. 19 of the Defence (Visiting Forces) Act 1963 (Cth)' 'Whether s. 19 applied only to deserters/absentees from a visiting force in Australia' 'Whether, absent statutory basis, executive action could lawfully detain and transfer a person to foreign military authorities' 'Whether the relevant statutory scheme improperly confers judicial power']

Ratio Decidendi

Part III of the Defence (Visiting Forces) Act 1963 (Cth), properly construed, only authorizes the apprehension and handover to foreign military authorities of persons who deserted or absented themselves without leave from a visiting force present in Australia. There was no statutory authority for the arrest and detention of Mr. Beane, who was not a member of a visiting force in Australia when he went absent without leave. Therefore, his arrest and detention were unlawful and he is entitled to be released.

Court Disposition

Application granted. Prosecutor to be discharged from custody. Order nisi for prohibition made absolute. Costs to be paid by respondents.

Orders

  • ['The prosecutor is discharged from the custody of the first respondent.' 'Order nisi for prohibition to the second respondent is made absolute.' 'The costs of the prosecutor to be paid by the respondents.']