Members of the Public Law and Policy Research Unit met on 24 February 2015 to discuss the High Court’s decision in CPCF v Minister for Immigration and Border Protection  HCA 1. Anna Olijnyk provides the following overview of the discussion.
The facts of the case attracted much media attention last year. In June 2014, a vessel embarked from India, bound for Australia. Those on board the vessel – 157 Sri Lankans of Tamil ethnicity – intended to claim asylum in Australia. The vessel never reached Australia. It was detained by an Australian customs vessel in the contiguous zone (the zone adjacent to Australia’s territorial sea). When the Indian vessel became unseaworthy, the passengers were taken onto the Australian vessel.
At the direction of the Commonwealth Government (acting on a decision of the National Security Committee of Cabinet) the maritime officers on board the Australian vessel sailed to the vicinity of India, with the aim of discharging the passengers there. The vessel, with the asylum seekers on board, remained near India for around 12 days, while the Australian government negotiated with the Indian government. Ultimately, no agreement with India was reached. The vessel then sailed to the Cocos (Keeling) Islands, where the passengers were taken into immigration detention.
In total, the passengers were detained on the Australian vessel for almost one month.
The plaintiff in CPCF (one of the Sri Lankan asylum seekers) commenced proceedings against the Commonwealth, claiming that his detention was unlawful and seeking damages for wrongful imprisonment. A series of questions were referred to the Full Court of the High Court.
The Commonwealth argued the detention was authorised either by s 72(4) of the Maritime Powers Act 2013 (Cth) or by a non-statutory executive power. The plaintiff argued that the power under s 72(4) had not been exercised lawfully, on three grounds:
1. Section 72(4) did not authorise detention of the plaintiff in the absence of a finalised agreement that he would be allowed to disembark in India;
2. The maritime officer acted under dictation from the National Security Committee;
3. There was a breach of the rules of procedural fairness.
In respect of the non-statutory executive power, the plaintiff argued that this power did not exist but that if it did, it was subject to a duty to accord procedural fairness.
The plaintiff’s claim failed, with a majority of the Court (French CJ, Crennan, Gageler and Keane JJ) holding that the detention was lawful under s 72(4).
The key section was 72(4) of the Maritime Powers Act 2013 (Cth), which applies 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.
A ‘maritime officer’ is defined in s 104 as a member of the Defence Force or Australian Federal Police; a customs officer; or a person appointed by the Minister. The powers under the Act (including the power in s 72(4)) may generally only be exercised with the authorisation of an ‘authorising officer’. An authorising officer is defined in s 16 as, essentially, the most senior person at the scene.
The other key section in the case was s 74, which conditioned the power under s 72(4):
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.
Reasoning and discussion
The case turned on the interpretation of s 72(4).
No permission to disembark in India
The majority did not accept the plaintiff’s argument that this section only authorised detention of a person when the person had permission, before the journey commenced, to disembark at the destination. Three judges – Hayne, Kiefel and Bell JJ – dissented on this point. We discussed the differences between the majority and minority judgments, observing a fundamental difference in their approaches to statutory interpretation.
The approach of the majority judges was, in many ways, orthodox. There was no textual indication supporting the limit on power for which the plaintiff contended. While there must be some likelihood of the person detained being permitted to disembark at the destination (the required degree of likelihood varied between majority judgments), that was largely a matter for the Executive to assess.
The minority – especially the joint judgment of Hayne and Bell JJ – was heavily influenced by the need to impose limits on what their Honours described as ‘compulsive’ and ‘exorbitant’ powers. The powers in question were disputed as a matter of international law, and authorised conduct that would otherwise be tortious. Therefore their Honours adopted the construction of the law for which the plaintiff contended: permission to disembark must be secured before a detained person was taken to a place.
We discussed the role of the ‘principle of legality’ – a recurring motif in recent Australian public law jurisprudence – in the various judgments. While Hayne and Bell JJ do not refer to the principle by that name, their Honours appear to have had something similar in mind. In contrast, the principle of legality is conspicuously absent from the majority judgments. Keane J goes so far as to say the principle has no role to play, because the legislation – by authorising detention and relocation against a person’s will – makes it clear that Parliament intended to intrude on common law rights. This approach treats the principle of legality as a threshold question in interpretation, while Hayne and Bell treat the principle as a limitation on power.
Woven through the plaintiff’s argument on the construction of s 72(4) was a contention that the power in s 72(4) was subject to the non-refoulement obligations under the Refugee Convention. This contention proved problematic because there were no facts to establish whether India was likely to send the asylum seekers back to Sri Lanka.
Acting under dictation
The argument that the maritime officer had acted under dictation from the National Security Committee failed because, in short, the legislation contemplated that the powers would be exercised in a chain of command, ultimately subject to civilian control via ss 61 and 64 of the Constitution. All judges agreed on this point. We found this part of the reasoning convincing, because of the emphasis placed by the Court on the nature of the powers and the circumstances in which they were to be exercised. The ‘maritime officers’ were relatively low ranking officers and the significant powers entrusted to them would often require the exercise of substantial discretion.
All judges held that the decision was not subject to a duty to accord procedural fairness. We found this conclusion surprising, in light of the Court’s sustained commitment to protecting procedural fairness over the last few decades. The Court did not appear to regard the decision as one that affected any relevant rights, interests or legitimate expectations. We were puzzled by the Court’s focus, in this respect, on the fact that the plaintiff had no right to enter Australia. This is certainly true, but surely the plaintiff had an ‘interest’ in the duration of the detention and their ultimate destination?
Despite the conclusion that there was no duty to accord procedural fairness, all judges except Kiefel J observed that the requirement, under s 74, to keep the detainee in a ‘safe’ place would, in some circumstances, impose hearing rule-like obligations. A decision-maker might not be able to establish ‘reasonable grounds’ for regarding a disembarkation point as ‘safe’ unless they had first ascertained the detainee’s views.
Non-statutory executive power
The most interesting aspect of the case from a constitutional law point of view proved to be the analysis of non-statutory executive power. The Commonwealth argued that, even if its actions were not authorised by s 72(4), they were authorised by non-statutory executive power to expel and detain aliens and return them to their place of origin.
On this point the court split, with views ranging from denial that the relevant power exists (Hayne, Kiefel and Bell JJ, who thought the relevant power resided in the parliament rather than the executive) to substantial acceptance (albeit in obiter: Keane J) of the Commonwealth’s position that the non-statutory power authorises detention. Between these two extremes were more subtle arguments about the extent to which non-statutory executive power can survive the enactment of detailed legislation on the same subject matter. Does the Maritime Powers Act extinguish or alter the non-statutory power to expel aliens? (See French CJ and Kiefel J.) If so, what is the extent of the extinguishment or alteration? Would the non-statutory powers revive if the Act were repealed? We discussed these questions which, in light of the division in the Court, appear to be live issues.
Ultimately, because the majority held the detention was authorised by s 72(4), it was unnecessary to decide this point.
The Court’s careful interpretation of s 72(4) is now of largely academic interest. In an effort to remove any uncertainty about the legality of the Commonwealth’s actions in similar situations, the Maritime Powers Act was amended prior to the High Court’s decision. Section 72(4B) now provides that a maritime officer ‘may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination).’ The new section 72A permits a person to be detained under s 72(4) to continue for as long as ‘reasonably required’ to determine the person’s destination; to consider whether the destination should be changed under s 72(4B); to complete the journey, including any stopovers or contingencies; and to make arrangements for the person’s release. Section 72A(2)(b) makes it clear there is no requirement to take the most direct route to the destination.