CPCF v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Hayne,Bell JJ.,Crennan J.,KIEFEL J.,Gageler J.,Keane J.,Keane J
• Judgment Date: 28 January 2015
• Neutral Citation: [2015] HCA 1
• Docket Number: S169/2014
• Date: 28 January 2015

[2015] HCA 1

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ

S169/2014

Cpcf

Plaintiff

and

Minister for Immigration and Border Protection & Anor

Defendants

Representation

R Merkel QC and C L Lenehan with J Williams, D P Hume and R Mansted for the plaintiff (instructed by Shine Lawyers)

J T Gleeson SC, Solicitor-General of the Commonwealth and S P Donaghue QC with C J Horan and P D Herzfeld for the defendants (instructed by Australian Government Solicitor)

Interveners

G R Kennett SC for the Australian Human Rights Commission, intervening (instructed by Australian Human Rights Commission)

R M Niall QC with N M Wood for the Office of the United Nations High Commissioner for Refugees, as amicus curiae (instructed by Allens Lawyers)

Constitution, s 61.

Maritime Powers Act 2013 (Cth), ss 5, 7, 16, 18, 69, 71, 72, 74, 97, 104(1).

Migration Act 1958 (Cth), ss 42, 189(3).

CPCF v Minister for Immigration and Border Protection

Migration — Refugees — Section 72(4) of Maritime Powers Act 2013 (Cth) authorised maritime officer to detain person for purpose of taking person to place outside Australia — Plaintiff on board vessel intercepted by Commonwealth officers in Australia's contiguous zone — Plaintiff detained on Commonwealth vessel which sailed to India in implementation of decision of National Security Committee of Cabinet (‘NSC’) — Where no agreement existed between Australia and India applicable to reception of plaintiff prior to commencement of taking of plaintiff to India — Where maritime officer implemented decision of NSC without independent consideration of whether plaintiff should be taken to India — Whether decision to detain and take plaintiff lawful — Whether power under s 72(4) subject to obligation to afford procedural fairness — Whether power constrained by Australia's international non-refoulement obligations.

Constitutional law (Cth) — Executive power of Commonwealth — Whether Commonwealth has power derived from s 61 of Constitution to authorise maritime officer to detain person for purposes of taking person outside Australia — Whether any such power subject to obligation to afford procedural fairness.

Words and phrases — ‘detain’, ‘maritime officer’, ‘non-refoulement obligations’, ‘procedural fairness’, ‘reasonable time’, ‘take’.

ORDER

The questions asked by the parties in the special case dated 21 August 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Did s 72(4) of the Maritime Powers Act authorise a maritime officer to detain the plaintiff for the purpose of taking him, or causing him to be taken, to a place outside Australia, being India:

• (a) whether or not the plaintiff would be entitled by the law applicable in India to the benefit of the non-refoulement obligations;

• (b) in implementation of a decision by the Australian Government that the plaintiff (and others on the Indian vessel) should be taken to India without independent consideration by the maritime officer of whether that should be so; and

• (c) whether or not, prior to the commencement of the taking of the plaintiff to India, an agreement or arrangement existed between Australia and India concerning the reception of the plaintiff in India?

Answer

• (a) Section 72(4) of the Maritime Powers Act 2013 (Cth) authorised the plaintiff's detention at all times from 1 July 2014 to 27 July 2014. This question is not otherwise answered.

• (b) Yes.

• (c) Yes.

Question 2

Did s 72(4) of the Maritime Powers Act authorise a maritime officer to:

• (a) take the steps set out in paragraph 20 in implementing the decision to take the plaintiff to India;

• (b) detain the plaintiff for the purposes of taking the plaintiff to India?

Answer

• (a) Yes.

• (b) Yes.

Question 3

Did the non-statutory executive power of the Commonwealth authorise an officer of the Commonwealth to:

• (a) take the steps set out in paragraph 20 for the purpose of preventing the plaintiff from entering Australia;

• (b) detain the plaintiff for the purposes of taking the plaintiff to India?

Answer

• (a) Unnecessary to answer.

• (b) Unnecessary to answer.

Question 4

Was the power under s 72(4) of the Maritime Powers Act to take the plaintiff to a place outside Australia, being India, subject to an obligation to give the plaintiff an opportunity to be heard about the exercise of that power and, if so, was that obligation breached?

Answer

No.

Question 5

Was any non-statutory executive power of the Commonwealth to take the plaintiff to a place outside Australia, being India, for the purpose of preventing the plaintiff from entering Australia, subject to an obligation to give the plaintiff an opportunity to be heard about the exercise of that power and, if so, was that obligation breached?

Answer

Unnecessary to answer.

Question 6

Was the detention of the plaintiff unlawful at any, and if so what period, from 1 July 2014 to 27 July 2014 and if so are they entitled to claim damages in respect of that detention?

Answer

No.

Question 7

Who should pay the costs of this special case?

Answer

The plaintiff.

Question 8

What if any order should be made to dispose of the proceeding or for the conduct of the balance (if any) of the proceeding?

Answer

The proceeding should be dismissed with consequential orders to be determined by a single Justice of this Court.

French CJ.

Introduction

1 On 29 June 2014, an Indian flagged vessel carrying the plaintiff and 156 other passengers was intercepted by an Australian border protection vessel (‘the Commonwealth vessel’) in the Indian Ocean about 16 nautical miles from the Australian territory of Christmas Island. The plaintiff is a Sri Lankan national of Tamil ethnicity, who claims to have a well-founded fear of persecution in Sri Lanka on grounds which would qualify him as a refugee under the Refugees Convention 1.

2 The interception took place within Australia's contiguous zone as declared pursuant to s 13B of the Seas and Submerged Lands Act 1973 (Cth) (‘the SSLA’) 2. The officer in charge of the Commonwealth vessel authorised the interception on the basis of his suspicion, on reasonable grounds, that the Indian vessel was involved in a contravention of the Migration Act 1958 (Cth) (‘the Migration Act’). The Indian vessel having become unseaworthy by reason of a fire in the engine house, its passengers were taken on board the Commonwealth vessel. They were detained on the Commonwealth vessel, which began sailing to India at the direction of the Australian Government, reflecting a decision of the National Security Committee of Cabinet (‘the NSC’) made on 1 July 2014. The detention and the taking of the passengers towards India was done in the purported exercise, by maritime officers, of maritime powers to detain and take persons to a place outside Australia pursuant to the Maritime Powers Act 2013 (Cth) (‘the MPA’). The power invoked by the maritime officers was conferred by s 72(4) of that Act, applicable to persons detained in the contiguous zone:

‘A maritime officer may detain the person and take the person, or cause the person to be taken:

• (a) to a place in the migration zone; or

• (b) to a place outside the migration zone, including a place outside Australia.’ 3

That subsection has to be read with s 74, which provides:

‘A maritime officer must not place or keep a person in a place, unless the officer is satisfied, on reasonable grounds, that it is safe for the person to be in that place.’

3 Having reached the vicinity of India on about 10 July 2014, the Commonwealth vessel remained there until about 22 July, when it became apparent that Australia would not, within a reasonable time, be able to reach an agreement with India which would permit the discharge of the passengers onto Indian territory. At the direction of the Minister for Immigration and Border Protection (‘the Minister’), given for what were described opaquely in these proceedings as ‘operational and other reasons’, the Commonwealth vessel then sailed to the Australian territory of the Cocos (Keeling) Islands. There the passengers, still purportedly detained under the MPA, were taken into immigration detention pursuant to s 189(3) of the Migration Act.

4 Injunctive proceedings had been instituted in this Court on behalf of the passengers while they were still on the high seas. The present proceedings, commenced by CPCF, allege that his detention on the Commonwealth vessel was unlawful and seek damages for wrongful imprisonment. A number of agreed questions, based upon agreed facts, have been referred to the Full Court by way of special case. The central question is whether maritime powers under the MPA, and/or the non-statutory executive power of the Commonwealth derived from s 61 of the Constitution, authorised the detention and taking of the plaintiff from Australia's contiguous zone to India. The particular questions and the answers to them are set out at the end of these reasons and are substantially to the effect that the detention and taking of the plaintiff was lawful pursuant to s 72(4) of the MPA.

5 The plaintiff relied upon Australia's obligations under international law as limiting the scope of the relevant maritime powers under the MPA or affecting their construction. It is necessary in that context to consider the relationship between the MPA and relevant international conventions, in particular the United Nations Convention on the Law of the Sea 4 (‘UNCLOS’) and the Refugees Convention.

The Maritime Powers Act and international law

6 The MPA provides ‘enforcement powers for use in, and in relation to, maritime areas.’ 5 The powers are exercised by maritime officers 6. They comprise members of the Australian Defence Force, officers of Customs, members or special members of the Australian Federal Police and persons...