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:
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