Can FCA hear appeal from habeas corpus?

Federal Court. Does the appellate jurisdiction of the Federal Court encompass an appeal from the issue of a writ of habeas corpus? Is the issue of a writ of habeas corpus interlocutory in nature? Did s 198AD(1) of the Migration Act 1958 (Cth) apply to a person who: (a) has received a favourable exercise of the power in s 46A(2); or is a “fast track applicant” within the meaning of the Act?

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Does the Federal Court have the power to direct the issue of a writ of habeas corpus or to make an order in the nature of habeas corpus?

Question 2: Is the appellate jurisdiction of the Federal Court conferred by s 24 of the Federal Court of Australia Act sufficiently wide to encompass an appeal from the issue of a writ of habeas corpus discharging a person from custody, or an order in the nature of habeas corpus?

Question 3: Is the usual test for determining whether an order is final or interlocutory whether the order, as made, finally determines the rights of the parties in a principal cause pending between them?

Question 4: If the answer to Question 3 is 'yes', is the question of whether an order is final or interlocutory answered by determining whether the legal effect of the judgment is final or not?

Question 5: In some circumstances, may an order for the issue of a writ of habeas corpus be interlocutory in character?

Question 6: Did the order for habeas corpus at first instance finally determine the rights of the parties in respect of the issue raised by the proceeding, namely whether the detention was lawful, with the result that such order was not interlocutory and that leave to appeal from it was not required?

Question 7: Can it be said that s 198AD(1) of the Migration Act 1958 (Cth) does not apply to a person who: (a) has received a favourable exercise of the power in s 46A(2); or is a “fast track applicant” within the meaning of the Act?

The FCAFC answered those questions as follows:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.

Previous articleJNMQ distinguished?
Next articleMigration Legislation Tracker