CPCF v Minister for Immigration and Border Protection

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

CPCF  PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR  DEFENDANTS

CPCF v Minister for Immigration and Border Protection

[2015] HCA 1

28 January 2015

S169/2014

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.

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)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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".

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).

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].

   [1]The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

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."

   [2]Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999, notified in the Commonwealth of Australia Gazette, S148, 7 April 1999.

   [3]The term "migration zone" has the same meaning as in the Migration Act: MPA, s 8, definition of "migration zone". Relevantly, it comprises the areas consisting of the States and Territories, land which is part of a State or Territory at mean low water and sea within the limits of both a State or a Territory and a port. It does not include sea within the limits of a State or Territory but not in a port: Migration Act, s 5(1).

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.

   [4]Done at Montego Bay on 10 December 1982.

   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 appointed as maritime officers by the Minister[7].

   [5]MPA, s 7.

   [6]MPA, s 7.

   [7]MPA, s 104(1).

7. The MPA provides for the exercise of powers with respect to vessels and people in Australia's territorial sea and on the high seas in the contiguous zone adjacent to the territorial sea. Section 7, headed "Guide to this Act", states that the powers can be used by maritime officers to give effect to Australian laws, international agreements to which Australia is a party and international decisions. Section 7 also provides that "[i]n accordance with international law, the exercise of powers is limited in places outside Australia." That may be taken as a declaration about substantive provisions of the Act, particularly ss 40–41, which limit the exercise of maritime powers on the high seas between Australia and other countries and in other countries — the term "country" in the MPA encompassing the territorial sea of a coastal State[8].

   [8]MPA, s 8, definition of "country".

8. Section 7 cannot be elevated to support the plaintiff's contention that powers under the MPA are to be exercised "in accordance with international law". Nor is s7 necessary to support the proposition that the MPA is to be construed in accordance with Australia's international legal obligations. That is true for any statutory provision able to be construed consistently with international law and international legal obligations existing at the time of its enactment. That proposition, in Australian law, dates back to the observation of O'Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners' Association[9] that "every Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law". It has ample support in subsequent decisions of this Court[10]. On the other hand, if the terms of a statutory provision are clear, there may be no available interpretation that is consistent with international law.

   [9](1908) 6 CLR 309 at 363; [1908] HCA 95.

   [10]See eg Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181 per Barton, Isaacs and Rich JJ; [1917] HCA 77; Polites v The Commonwealth (1945) 70 CLR 60 at 68–69 per Latham CJ, 77 per Dixon J, 80–81 per Williams J; [1945] HCA 3; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204 per Gibbs CJ; [1982] HCA 27; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; [1992] HCA 64; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; [1995] HCA 20; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ; [1998] HCA 22; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [29] per Gleeson CJ; [2003] HCA 2; Coleman v Power (2004) 220 CLR 1 at 27–28 [19] per Gleeson CJ; [2004] HCA 39; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 234 [247] per Kiefel J; [2011] HCA 32; Momcilovic v The Queen (2011) 245 CLR 1 at 36–37 [18] per French CJ; [2011] HCA 34.

9. The plaintiff submitted that the powers conferred on maritime officers by s 72(4) of the MPA to detain and take a person to a place outside Australia are constrained, textually or by application of common law interpretive principles, by Australia's non-refoulement obligations under the Refugees Convention. The non-refoulement obligation in respect of refugees is derived from Art 33(1) of the Convention, which provides that "[n]o Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The plurality in the Malaysian Declaration Case said of that obligation[11]:

   "for Australia to remove a person from its territory, whether to the person's country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention."

   The plaintiff also called in aid an analogous obligation under Art 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

   [11]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 191 [94] per Gummow, Hayne, Crennan and Bell JJ.

10. The defendants argued that the non-refoulement obligation under the Refugees Convention only applied to receiving States in respect of refugees within their territories.  There is support for that view in some decisions of this Court, the House of Lords and the Supreme Court of the United States[12]. The United Nations High Commissioner for Refugees, appearing as amicus curiae in these proceedings, submitted that when a State party to the Refugees Convention exercises effective control over a person who is a refugee outside the territory of the State, it attracts the non-refoulement obligation imposed by both the Refugees Convention and the Convention against Torture.

    [12]Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 45 [136] per Gummow J; [2000] HCA 55; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15 [42] per McHugh and Gummow JJ; [2002] HCA 14; R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1 at 29–30 [17] per Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell agreeing at 47 [48], 55 [72] and 66 [108] respectively; Sale v Haitian Centers Council Inc 509 US 155 (1993).

11. There is no textual basis in s 72(4) itself which would support a construction limiting the power which it confers by reference to Australia's non-refoulement obligations assuming they subsist extra-territorially. There is, however, a broad constraint imposed by s 74 of the MPA which is protective of the safety of persons taken to a place under s 72(4). The defendants contended for a restrictive reading of s 74. They submitted it did not apply to the "place" to which a person might be taken under s 72(4) but was directed to the power conferred on a maritime officer by s 71 to "place or keep a person in a particular place on the vessel". There is no warrant for such a restrictive reading of s 74, which follows both s 71 and s 72.

12. The content of the term "safe for the person to be in that place" in s 74 may be evaluative and involve a risk assessment on the part of those directing or advising the relevant maritime officers. A place which presents a substantial risk that the person, if taken there, will be exposed to persecution or torture would be unlikely to meet the criterion "that it is safe for the person to be in that place". The constraint imposed by s 74 embraces risks of the kind to which the non-refoulement obligations under the Refugees Convention and the Convention against Torture are directed. The existence of such risks may therefore amount to a mandatory relevant consideration in the exercise of the power under s 72(4) because they enliven the limit on that power which is imposed by s 74 at the point of discharge in the country to which the person is taken. However, whether a person is entitled to the benefit of non-refoulement obligations in the place to which that person is taken does not of itself determine the question whether that is a safe place within the meaning of s 74.

13. I agree, for the reasons given by Hayne and Bell JJ, that given the agreement of the parties to the questions framed in the Special Case, Question 1(a) should not be regarded as hypothetical. There are, however, no facts set out in the Special Case from which it may be inferred that, assuming the plaintiff to be a refugee or otherwise at risk in Sri Lanka, taking him to India would have involved transgressing the limit imposed by s 74. There is no agreed fact in the Special Case to the effect that if the plaintiff had been taken to India and discharged on Indian territory, he would have been at risk of removal from India to a place in which he would not have been safe. That is relevant to the answer to Question 2. There is no basis for a conclusion that the discharge of the plaintiff in India would have contravened s 74.

14. In my opinion, Question 1(a) can be answered in the affirmative.  It is sufficient, however, in order to reflect the common position of the majority, that it be answered:

    "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."

    Rescue obligations

15. Article 98 of UNCLOS provides that every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea in danger of being lost[13].  Section 181 of the Navigation Act 2012 (Cth) accordingly imposes an obligation on the master of a vessel at sea to cause the vessel to proceed as fast as practicable to the assistance of persons in distress at sea[14].  The obligation applies to regulated Australian vessels[15], which term includes Australian customs vessels[16].

    [13]UNCLOS, Art 98(1)(a).

    [14]Navigation Act, s 181(1)(c).

    [15]Navigation Act, s 180(a).

    [16]Navigation Act, s 15(2).

16. Australia is also a party to the International Convention on Maritime Search and Rescue ("the SAR Convention").  Parties to that Convention undertake to adopt all legislative or other appropriate measures necessary to give full effect to it[17].  It requires that the State party responsible for the search and rescue region in which assistance is rendered to persons in distress at sea exercise primary responsibility for ensuring that coordination and cooperation occurs so that survivors are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the International Maritime Organization[18].  One of those guidelines provides that[19]:

    "The need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea."

    [17]SAR Convention, Art I.

    [18]SAR Convention, Annex, par 3.1.9.  The guidelines are contained in the Annex to the International Maritime Organization, Maritime Safety Committee, Guidelines on the Treatment of Persons Rescued at Sea, Resolution MSC 167(78) ("the International Maritime Organization Guidelines").

    [19]International Maritime Organization Guidelines, par 6.17.

17. The Indian vessel, after interception by the Commonwealth vessel, became unseaworthy, thus engaging Australia's rescue obligations at international law in respect of its passengers and crew. The defendants did not contend that a characterisation of the interception as a rescue meant that the maritime officers on the Commonwealth vessel were doing other than exercising maritime powers under the MPA in detaining the plaintiff and other passengers and taking them to India. To the extent that the guidelines applicable to rescue operations might be taken to import an extra-territorial non-refoulement obligation in respect of the persons rescued, the consequences of that obligation for the exercise of the statutory power have already been dealt with. It is subsumed by the requirement imposed by s 74.

    The United Nations Convention on the Law of the Sea

18. UNCLOS developed out of a process of codification of the international law of the sea which can be traced back at least as far as the Hague Codification Conference established by the League of Nations in 1930 to consider, among other things, the legal status of the territorial sea[20]. Following a study commencing in 1949 and recommendations by the International Law Commission of the United Nations in 1956, the Geneva Convention on the Continental Shelf was made in 1957 and was followed in 1958 by the Geneva Convention on the Territorial Sea and Contiguous Zone, which came into force in 1964, and the Geneva Convention on the High Seas, which came into force in 1962. As explained by Professor Shearer, the latter Convention[21]:

    "codified customary international law which regarded the high seas as incapable of appropriation by any State and as free for the commerce and navigation of all States.  In particular, it is forbidden to States to assert jurisdiction on the high seas against foreign vessels except on suspicion of piracy or engaging in the slave trade."

    A specified breadth for the territorial sea was not agreed to until the making of UNCLOS.

    [20]Caminos, Law of the Sea, (2001) at xiii.

    [21]Shearer, "The Limits of Maritime Jurisdiction", in Schofield, Lee and Kwon (eds), The Limits of Maritime Jurisdiction, (2014) 51 at 56.

19. UNCLOS provides that "[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters ... to an adjacent belt of sea, described as the territorial sea"[22] and that "[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law."[23] Every "State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention."[24]  Beyond the territorial sea there is a contiguous zone, which is explained in Art 33[25]:

    "In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

    (a)prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea".

    The contiguous zone "may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured."[26]

    [22]UNCLOS, Art 2(1).

    [23]UNCLOS, Art 2(3).

    [24]UNCLOS, Art 3.

    [25]UNCLOS, Art 33(1)(a).

    [26]UNCLOS, Art 33(2).

20. UNCLOS also provides that subject to the Convention, ships of all States enjoy the right of innocent passage through the territorial sea of a coastal State[27].  Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State[28], but shall be considered to be prejudicial if, in the territorial sea, the foreign ship engages in the loading or unloading of any person contrary to the immigration laws and regulations of the coastal State[29].  There is no suggestion that the Indian vessel was intending to engage in innocent passage through Australian territorial waters.

    [27]UNCLOS, Art 17.

    [28]UNCLOS, Art 19(1).

    [29]UNCLOS, Art 19(2)(g).

21. It is necessary in considering UNCLOS and any other relevant international conventions or rules of international law to bear in mind that international law and convention or treaty obligations do not have a direct operation under Australian domestic law.  Nor does the taxonomy of waters beyond the shoreline necessarily determine questions of the validity of laws extending to the waters, which, in any event, do not arise in these proceedings.  Barwick CJ said in New South Wales v The Commonwealth[30]:

    "The test of validity of a law having an extra-territorial operation is its relationship to the peace, order and good government of the territory for the government of which the legislature has been constituted.  If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas.  It would not achieve validity by its operation in the territorial sea."

    Consideration of UNCLOS directs attention to the SSLA, which is part of the statutory background relevant to the enactment of the MPA.

    [30](1975) 135 CLR 337 at 361–362; [1975] HCA 58.

    The Seas and Submerged Lands Act

22. The SSLA, as enacted in 1973, recited that Australia was a party to the Geneva Convention on the Territorial Sea and the Contiguous Zone[31] and the Geneva Convention on the Continental Shelf[32], copies of which were scheduled to the Act. The validity of the SSLA was upheld in New South Wales v The Commonwealth on the basis that its provisions were within the legislative power of the Commonwealth to make laws with respect to external affairs under s 51(xxix) of the Constitution[33].

    [31]Done at Geneva on 29 April 1958.

    [32]Done at Geneva on 29 April 1958.

    [33](1975) 135 CLR 337 at 364–366 per Barwick CJ, 377 per McTiernan J, 388–389 per Gibbs J, 472, 476 per Mason J, 498 per Jacobs J, 504 per Murphy J.

23. The SSLA declared and enacted, inter alia, that "the sovereignty in respect of the territorial sea ... is vested in and exercisable by the Crown in right of the Commonwealth."[34] The Governor-General was empowered from time to time by Proclamation to declare, not inconsistently with the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or any part of the territorial sea[35]. The Act was amended by the Maritime Legislation Amendment Act 1994 (Cth) to reflect its reliance upon UNCLOS, in lieu of the two Geneva Conventions of 1958, and the ability which UNCLOS conferred at international law to declare a contiguous zone. The amendments introduced a recital into the Preamble of the Act declaring that Australia, as a coastal State, has the right under international law to exercise control within a contiguous zone to:

    "(a)prevent infringements of customs, fiscal, immigration or sanitary laws within Australia or the territorial sea of Australia;

    (b)to punish infringements of those laws."

    The Schedules to the Act setting out the two 1958 Geneva Conventions were repealed and substituted with a Schedule setting out Pts II, V and VI of UNCLOS. A definition of "contiguous zone" was inserted, having the same meaning as in Art 33 of UNCLOS.

    [34]SSLA, s 6.

    [35]SSLA, s 7(1).

24. The 1994 amendments also introduced a new s 13A, which declared and enacted that "Australia has a contiguous zone."  The limits of the whole or any part of the contiguous zone may be declared from time to time by the Governor-General, not inconsistently with UNCLOS[36] or any relevant international agreement to which Australia is a party[37]. A note to s 13A states that the rights of control that Australia, as a coastal State, has in respect of the contiguous zone of Australia are exercisable in accordance with applicable Commonwealth, State and Territory laws. The note, being part of the material in the Act, is part of the Act[38].  It has the character of a declaratory statement which directs attention to relevant domestic legislation.

    [36]That is to say, s 4 of Pt II of UNCLOS.

    [37]SSLA, s 13B.

    [38]Acts Interpretation Act 1901 (Cth), s 13(1).

25. The direct relevance of the SSLA in these proceedings is that it declares a contiguous zone for Australia and asserts Australia's rights in that zone, which give content to the geographical qualifications on the exercise of maritime powers under the MPA.

    Maritime powers — overview

26. For the content of maritime powers it is necessary to look to Pt 3 of the MPA. The Guide to Pt 3, set out in s 50, states that maritime powers include powers to detain vessels, and to place, detain, move and arrest persons[39]. They may be exercised only in accordance with Pt 2[40] and are subject to the geographical limits set out in that Part. They are subject to processes set out in Pt 2 for authorising their exercise and can only be exercised by maritime officers who are the repositories of such authority.

    [39]MPA, s 50(e) and (f).

    [40]MPA, s 51.

    Maritime powers — the geographical dimension

27. The "maritime areas" referred to in the MPA as areas in which maritime powers can be exercised are not expressly defined in that Act. However, the MPA extends to "every external Territory"[41] and to "acts, omissions, matters and things outside Australia."[42]  The term "Australia", used in a geographical sense, includes "the territorial seas of Australia and the external Territories"[43]. Division 5 of Pt 2 sets out geographical limits on the exercise of powers under the Act. It contains seven substantive sections which define areas in which the Act does not authorise the exercise of powers unless certain circumstances exist and/or the powers are exercised for a specified purpose[44]. 

    [41]MPA, s 4(1).

    [42]MPA, s 4(2).

    [43]MPA, s 8, definition of "Australia", par (b).

    [44]MPA, ss 40–41, 43–47.

28. The MPA does not authorise the exercise of powers in another country except in certain circumstances, none of which apply in this case[45].  "Country" is defined in its geographical sense to include "the territorial sea, and any archipelagic waters, of the country"[46]. Subject to certain exclusions, s 41 provides that the MPA does not authorise the exercise of powers in relation to a foreign vessel at a place between Australia and another country. "Australia" and "country" being defined to include territorial waters, a place "between Australia and another country" would be outside the territorial waters of the other country. It is not asserted that the Commonwealth vessel was at any time within India's territorial waters.

    [45]MPA, s 40.

    [46]MPA, s 8, definition of "country", par (a).

29. The geographical limit imposed by s 41 does not preclude the exercise of maritime powers in the contiguous zone of Australia to investigate or prevent a contravention of a customs or immigration law prescribed by the regulations occurring in Australia[47]. Nor does it preclude the exercise of powers to administer or ensure compliance with the Migration Act in its application to foreign vessels or persons on foreign vessels at a place between Australia and another country[48]. Section 41 therefore does not preclude the exercise of a maritime power to take persons detained in the contiguous zone to another country as an incident of preventing a contravention of Australian immigration law. The relevant maritime power derives from s 72(4).

    [47]MPA, s 41(1)(c).

    [48]MPA, s 41(1)(d) and s 8, definition of "monitoring law", par (c).

    Maritime powers — content

30. Maritime powers in relation to vessels are set out in Div 7 of Pt 3 of the MPA. A maritime officer may detain a vessel[49] and take it, or cause it to be taken, to a port or other place that the officer considers appropriate[50].  The officer may remain in control of the vessel or require the person in charge of the vessel to remain in control of it until the vessel is released or disposed of[51].

    [49]MPA, s 69(1).

    [50]MPA, s 69(2)(a).

    [51]MPA, s 69(2)(b).

31. Maritime powers in relation to persons are set out in Div 8 of Pt 3. A maritime officer may require a person on a detained vessel to remain on the vessel until it is taken to a port or other place, or permitted to depart from the port or other place[52]. Section 72(4) and s 74, which are of central significance in these proceedings, have been set out in the Introduction to these Reasons. Reference should, however, be made to s 72(5):

    "For the purposes of taking the person to another place, a maritime officer may within or outside Australia:

    (a)place the person on a vessel or aircraft; or

    (b)restrain the person on a vessel or aircraft; or

    (c)remove the person from a vessel or aircraft."

    [52]MPA, s 72(3).

32. No question has been raised about the validity of the MPA. The Special Case is to be decided on the basis that the powers conferred on maritime officers by s 72(4) are validly conferred and include the power to detain and take a person from Australia's contiguous zone to another place, including to another country.

    Maritime powers — purposes

33. Maritime powers are exercised within a purposive framework[53].  A maritime officer may exercise powers in accordance with an authorisation to:

    (a)      investigate a contravention[54]; and

    (b)      administer or ensure compliance with a monitoring law[55].

    Maritime powers may also be exercised[56]:

    "(a)to investigate or prevent any contravention of an Australian law that the officer suspects, on reasonable grounds, the vessel ... to be involved in;

    (b)to administer or ensure compliance with any monitoring law".

    A maritime officer, in exercising powers under the MPA, is to use only such force against a person or thing "as is necessary and reasonable in the circumstances."[57]  In so doing the maritime officer "must not ... subject a person to greater indignity than is necessary and reasonable to exercise the powers"[58].

    [53]MPA, Pt 2, Div 4, subdiv C.

    [54]MPA, s 31(a).

    [55]MPA, s 31(b).

    [56]MPA, s 32(1).

    [57]MPA, s 37(1).

    [58]MPA, s 37(2)(a).

    Maritime powers — the chain of command

34. Authorising officers may authorise the exercise of maritime powers in relation to a vessel in certain circumstances[59].  Those officers include the most senior maritime officer and the most senior member or special member of the Australian Federal Police who is in a position to exercise any of the maritime powers in person[60]. The exercise of maritime powers in relation to a vessel may be authorised if the authorising officer suspects, on reasonable grounds, that the vessel is involved in a contravention of an Australian law[61] — ie, if an Australian law has been, is being, or is intended to be, contravened on, or in the vicinity of, the vessel, or if there is some other connection between the vessel and a contravention, or intended contravention, of the law[62].  A vessel is also involved in a contravention of a law if it has been, is being, or is intended to be, used in contravention of the law[63].  The exercise of maritime powers in relation to a vessel may also be authorised for the purposes of administering or ensuring compliance with a "monitoring law"[64], a term which includes the Migration Act[65].

    [59]MPA, ss 17–22. An authorisation remains in force until it is spent or it lapses: MPA, s 23(1). It is spent when the continuous exercise of powers under the authorisation ends: MPA, s 23(2). It need not be in writing and it is not a legislative instrument: MPA, s 25.

    [60]MPA, s 16(1)(a)–(b).

    [61]MPA, s 17(1).

    [62]MPA, s 9(1).

    [63]MPA, s 9(2).

    [64]MPA, s 18.

    [65]MPA, s 8, definition of "monitoring law", par (c).

35. On the agreed facts in the Special Case, maritime officers on navy vessels and Australian customs vessels exercise maritime powers in the context of a chain of command in which they are governed by orders and instructions from superior or senior officers.  In taking the plaintiff and other passengers to India, the maritime officers on the Commonwealth vessel were acting in accordance with a specific decision of the NSC and were implementing a general government policy to the effect that anybody seeking to enter Australia by boat without a visa will be intercepted and removed from Australian waters.

36. The plaintiff contended that the maritime officers, acting in accordance with the NSC decision, acted unlawfully because they were acting under the dictation of the NSC and because the government policy applied by the NSC itself admitted of no discretion. The NSC was said not to be an entity which has power under the MPA. It is not an authorising officer, nor a maritime officer. Maritime officers who simply "implemented" the NSC direction were therefore improperly exercising their power. That contention must be considered on the basis that the NSC comprises Ministers of the Executive Government of the Commonwealth with responsibility, among other things, for the implementation of government policy with respect to non-citizens seeking to enter Australia by boat without a visa.

37. The question whether, absent express power to do so, a Minister can direct a public official, for whom he or she is responsible, in the exercise of a statutory discretion has been the subject of different approaches in this Court from time to time[66].  The answer depends upon a variety of considerations including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions may bear upon the relationship between the Minister and the decision-maker[67].

    [66]R v Mahony; Ex parte Johnson (1931) 46 CLR 131 at 145 per Evatt J; [1931] HCA 36; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 192–193 per Kitto J, 200 per Taylor and Owen JJ, 206 per Windeyer J; [1965] HCA 27; Salemi v MacKellar [No 2] (1977) 137 CLR 396; [1977] HCA 26; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 82–83 per Mason J; [1977] HCA 71; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 429–430 per Mason and Wilson JJ; [1981] HCA 69. See generally O'Connor, "Knowing When to Say 'Yes Minister': Ministerial Control of Discretions Vested in Officials", (1998) 5 Australian Journal of Administrative Law 168.

    [67]Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 430 per Mason and Wilson JJ; Wetzel v District Court of New South Wales (1998) 43 NSWLR 687 at 688, 692–693.

38. The nature of the power conferred by s 72(4) of the MPA and the subject matter of that power are apt to raise questions of Australia's relationship with other countries. The question whether to take non-citizens detained in the contiguous zone to Australia or to another country is a matter appropriate for decision at the highest levels of government by Ministers of the Executive Government, who are responsible to the Parliament. The power conferred upon maritime officers by s 72(4) is a power in the exercise of which they could properly regard the direction of the NSC as decisive and which, as officers of a disciplined service subject ultimately to civilian control[68], they are bound to implement.  Whether particular circumstances might prevent immediate compliance with such a direction is not a question which arises in this case.

    [68]See Defence Force Discipline Act 1982 (Cth), s 27 and Haskins v The Commonwealth (2011) 244 CLR 22 at 47 [67] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 28 in relation to members of the Australian Defence Force, and the Australian Federal Police Act 1979 (Cth), s 40 with respect to members of the Australian Federal Police.

39. The word "may" in s 72(4) confers a power that can be exercised according to the dictates of the existing structures within which maritime officers operate. Subject to practical constraints, such as weather conditions and the availability of fuel and provisions on a vessel, a maritime officer is not required to consider the exercise of the power as though it were a personal discretion requiring a weighing of relevant factors. When exercising the power under s 72(4) of the MPA in response to a high executive direction in pursuance of government policy, maritime officers do not thereby act under dictation and unlawfully. Question 1(b) in the Special Case should be answered accordingly.

    The Maritime Powers Act and the executive power

40. Section 5 of the MPA is headed "Effect on executive power" and provides:

    "This Act does not limit the executive power of the Commonwealth."

    The defendants submitted that s 5 negatives any implication, otherwise available, that the MPA excludes Commonwealth executive power in relation to the matters to which it applies.

41. The MPA confers a range of powers on officers of the Executive Government of the Commonwealth, including authorising officers and maritime officers as defined in the Act. The exercise of those powers is conditioned by reference to the circumstances and locations in which they may be exercised and the purposes for which they may be exercised. Whatever the proper construction of s 5, it cannot be taken as preserving unconstrained an executive power the exercise of which is constrained by the MPA. Considerations of coherence in the legislative scheme point to that conclusion.

42. Any consideration of the non-statutory executive power must bear in mind its character as an element of the grant of executive power contained in s 61 of the Commonwealth Constitution. The history of the prerogative powers in the United Kingdom informs consideration of the content of s 61, but should not be regarded as determinative. The content of the executive power may be said to extend to the prerogative powers, appropriate to the Commonwealth, accorded to the Crown by the common law[69]. It does not follow that the prerogative content comprehensively defines the limits of the aspects of executive power to which it relates. It is not necessary in these proceedings to resolve the important constitutional question whether there was a power under s 61 which, absent the lawful exercise of power under the MPA, would have authorised the actions taken by the Commonwealth in this case. It follows that the answer to Questions 3 and 5 of the Special Case will be "Not necessary to answer."

    [69]Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86] per Gummow, Hayne, Heydon and Crennan JJ; [2010] HCA 27; see also Williams v The Commonwealth (2012) 248 CLR 156 at 227–228 [123] per Gummow and Bell JJ; [2012] HCA 23.

    A speculative taking — whether authorised by s 72(4)

43. Questions 1(c) and 2 raise issues about the construction of s 72(4) and whether the detention of the plaintiff in order to take him to India, in the absence of any consent or agreement by the Indian Government, was lawful.

44. The initial destination of the Indian vessel and its passengers was Christmas Island. None of the passengers had any right to enter Christmas Island. It is a contravention of s 42(1) of the Migration Act for a non-citizen to travel to Australia without a visa that is in effect. If a non-citizen is brought into Australia on a vessel without a relevant visa where the non-citizen is a person to whom s 42(1) applies, then the master, owner, agent, charterer and operator of the vessel are each guilty of an offence against s 229 of the Migration Act. The maritime power conferred by s 72(4) of the MPA may be exercised in the contiguous zone of Australia to investigate or prevent a contravention of the Migration Act occurring in Australia. Circumstances warranting the exercise of the power under s 72(4) for that purpose existed.

45. Detention pursuant to s 72(4) must be incidental to the exercise of the power to take the person detained to a particular place.  Being incidental and therefore purposive it must not be obviously disproportionate in duration or character to the purpose it serves[70].  It may include, as the plaintiff accepted, detention for a period sufficient to enable reasonable steps to be taken by the relevant maritime officer, or those giving him or her directions, to determine the place to which the detained person is to be taken.  The power to detain does not authorise indefinite detention.  It can only be exercised for a reasonable time having regard to its statutory purpose.  Detention incidental to the implementation of a decision to take a person to another country would be unlawful if the taking decision itself were not authorised by law.  The decision to take the plaintiff to India was said by the plaintiff to have been unlawful because s 72(4) does not authorise a person to be taken to another country which he or she did not have a right to enter unless an agreement or arrangement existed between Australia and that country permitting discharge of the person there.

    [70]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 366 [74] per Hayne, Kiefel and Bell JJ; see also at 351–352 [30] per French CJ; [2013] HCA 18.

46. As a matter of the internal logic of the statute, a decision to take a person to another country would not be a valid exercise of the power under s 72(4) if it were known, when the decision was taken, that the country was not one at which the person could be discharged and that there was no reasonable prospect that that circumstance would alter.  The position is no different where the taking decision is entirely speculative, that is to say, it is not known at the time the decision is made whether it is capable of being performed and there is no basis for believing that the position would be altered within a reasonable time.  The statute should not be taken as authorising a futile or entirely speculative taking and therefore a futile or entirely speculative detention.

47. A decision to take a person to another country may be made in accordance with the MPA when made in the knowledge or reasonably grounded belief that that country will allow the person to enter its territory. The grounds of the knowledge or belief may be based on information about the law and/or administrative practices of that country or upon its express agreement or consent to allow the person to be discharged there. In such cases, the possibility cannot be excluded that the position may alter by a change of law or practice, or by withdrawal of an agreement or consent previously given to permit a person to be discharged in that country. It may be that a particular person will be refused entry for reasons peculiar to that person. The decision to exercise the power to take a person to another country must necessarily be taken on the basis that, as a matter of probability, it will be able to be performed to completion. Where, as in this case, the proposed country of destination has not agreed to receive the person taken but there are negotiations in place with a view to reaching agreement, then the relevant maritime officer or those directing him or her may make a probabilistic assessment and determine that the process of taking a person to that country should commence on the basis that there is a reasonable possibility that agreement will be reached or consent received. Assessment of that kind of probability is a matter for the Executive. It does not go to the power conferred by s 72(4) unless the probability is such as to render the taking decision futile or entirely speculative.

48. The plaintiff submitted that at the time the defendants decided to take him to India he was not entitled to enter that country, the Commonwealth had no arrangement with India for him to enter that country, whether lawfully or unlawfully, and it was not practicable for the Commonwealth to effect his discharge there.  Those circumstances, it was said, continued between 1 July 2014 and 23 July 2014.  On the basis that when the decision to take him to India was made it was not practicable to effect his discharge there, the decision to take was not authorised by s 72(4).  On that basis the incidental detention was said not to be authorised.

49. The defendants pointed out that the plaintiff's argument involved an acceptance that the permissible period of detention under s 72(4) included an allowance for time to take reasonable steps to determine whether the person could be discharged at the place to which he might be taken.  The defendants submitted that to construe s 72(4) in the limited way for which the plaintiff contended would prolong the detention of persons under that provision by preventing travel to any other country occurring simultaneously with any negotiations with that country.

50. Given the generality with which the power conferred by s 72(4) is expressed, the primary constraint must be that its exercise is consistent with its statutory purpose in the circumstances of the case.  Had the taking been deferred while negotiations were pursued, the Commonwealth vessel would have been able, consistently with s 72(4) as the plaintiff construes it, to remain at sea for as long as was reasonably necessary to determine whether negotiations were likely to yield an agreement to receive the plaintiff and other persons on the Commonwealth vessel.  In the circumstances described in the Special Case, the exercise of the power under s 72(4), notwithstanding that no agreement had been reached with India as to the discharge of the plaintiff, could not be said to be invalid.  It follows that Questions 1(c) and 2 should be answered in the affirmative.

    The detention and taking and procedural fairness

51. The plaintiff submitted that the power under s 72(4) to detain and take him to India was conditioned upon compliance with an obligation, breached in this case, to give him an opportunity to be heard about the exercise of the power.  General principles informing the implication of the requirements of procedural fairness and the exercise of statutory powers adverse to personal rights, freedoms and interests were invoked.  Plainly, the exercise of the power under s 72(4) will have an adverse effect upon the liberty of the persons affected by it and, depending upon the destinations to which they are taken, may have the potential to affect their ultimate safety and wellbeing.  However, given the nature and purposes of the power and the circumstances in which it is exercised, the plaintiff's submission cannot be accepted.

52. As the defendants submitted, the power under s 72(4) is a power exercised, in this case, for the purpose of preventing a contravention of Australia's migration laws. The maritime officers exercising the power do so in a chain of command. They do so in circumstances contemplated by the MPA in which there is no appropriate administrative framework to afford persons to whom s 72 applies a meaningful opportunity to be heard. Moreover, the exercise of the powers under s 72(4) is to be undertaken for the purposes for which those powers are conferred and within a reasonable time.

53. The ultimate safety of persons taken to a place under s 72(4) is a mandatory relevant consideration by reason of s 74. It does not follow from that that the power conferred under s 72(4) is conditioned by the requirements of procedural fairness. Those exercising or directing the exercise of the power may inform themselves of facts relevant to the question of safety in a variety of ways which may include, or according to the circumstances require, obtaining information from the persons to be detained. It may, for example, be open to the directing authority or those exercising powers under the MPA to act upon information about the origin of the foreign vessel, the ethnicity of its passengers and general information about the country from which they have most recently departed in determining whether it is safe to return them to that place. While the obtaining of basic information from the passengers may be a necessary incident of compliance with the requirement of s 74 in particular circumstances, it is not a matter which goes to power under the rubric of procedural fairness. The answer to Question 4 is "No".

    The questions and answers on the Special Case

54. The questions stated for the opinion of the Full Court should be answered as follows:

    (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;

    Answer: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)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

    Answer:         Yes.

    (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:         Yes.

    (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;

    Answer:         Yes.

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

    Answer:         Yes.

    (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;

    Answer:         Not necessary to answer.

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

    Answer:         Not necessary to answer.

    (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.

    (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:         Not necessary to answer.

    (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 [sic] entitled to claim damages in respect of that detention?

    Answer:         No.

    (7)      Who should pay the costs of this special case?

    Answer:         The plaintiff.

    (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:Proceedings dismissed, consequential orders to be determined by a single Justice of this Court.

55. HAYNE AND BELL JJ.   The Maritime Powers Act 2013 (Cth) ("the MP Act") provides for a "maritime officer" to exercise certain powers with respect to vessels in Australia's contiguous zone[71] and with respect to persons on those vessels. 

    [71]Section 8 of the MP Act defines "contiguous zone" as having the same meaning as in the United Nations Convention on the Law of the Sea (1982) ("UNCLOS") [1994] ATS 31. Article 33 of UNCLOS describes the contiguous zone as "a zone contiguous to [the coastal State's] territorial sea" not extending beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

56. The Special Case agreed by the parties in this matter asks questions arising out of steps taken by officers of the Commonwealth with respect to the plaintiff, one of a number of persons on an Indian flagged vessel detained by an Australian border protection vessel in Australia's contiguous zone near Christmas Island.  The plaintiff and others from the Indian vessel were placed on board the border protection vessel (a "Commonwealth ship"[72]).  The National Security Committee of Cabinet decided that they should be taken to India, which was the place from which the Indian vessel had sailed.  The Commonwealth ship took the plaintiff and the others who had been on board the Indian vessel and "arrived near India" about ten days later. 

    [72]Defined in s 8 as "a vessel that is owned by, or in the possession or control of, the Commonwealth or a Commonwealth authority".

57. The plaintiff and other passengers did not disembark in India.  A little over three weeks after the decision to take the plaintiff and others to India, and about 12 days after the Commonwealth ship had "arrived near India", the Minister for Immigration and Border Protection decided that, "for operational and other reasons, it would not be practicable to complete the process of taking the plaintiff and the other persons from the Indian vessel to India within a reasonable period of time, and that those persons should be taken to the Territory of the Cocos (Keeling) Islands".  This was done.

58. The plaintiff is a person of Tamil ethnicity and Sri Lankan nationality.  At no material time did he have an Australian visa permitting him to travel to or enter Australia.  It should be inferred that the plaintiff, and the other passengers, were not put off the Commonwealth ship in India because they had no right to enter India and no permission to do so. 

59. The plaintiff alleges that his detention was unlawful for some or all of the time he was on board the Commonwealth ship and claims damages for wrongful imprisonment. The plaintiff puts that argument in several different ways and the Minister and the Commonwealth ("the Commonwealth parties") make a number of separate answers to the claim. But both the claim made by the plaintiff and the answers given by the Commonwealth parties require that there first be an examination of the relevant provisions of the MP Act.

    Maritime Powers Act 2013

60. For present purposes, the general scheme of the MP Act can be identified as having the following elements. Part 2 (ss 15‑49) provides for the exercise of maritime powers. Relevantly, s 16 prescribes who may authorise the exercise of maritime powers in relation to a vessel. Those persons include[73] the person in command of a Commonwealth ship from which the exercise of powers is to be directed or coordinated. Section 17 provides that an authorising officer may authorise the exercise of maritime powers in relation to a vessel if the officer suspects, on reasonable grounds, that the vessel is involved in a contravention of Australian law. A "contravention" of Australian law includes[74] an offence against the law.  Involvement in a contravention extends[75] to an intended contravention of the law. 

    [73]s 16(1)(d).

    [74]s 8.

    [75]s 9.

61. If an authorisation under ss 16 and 17 is in force in relation to a vessel, a maritime officer may exercise maritime powers[76] in relation to that vessel in accordance with ss 31 and 32 and within the geographical and other limits specified in Div 5 of Pt 2 of the MP Act (ss 40‑49).

    [76]s 30.

62. Section 31 provides, in effect, that the maritime officer may exercise maritime powers to take whichever of a number of steps applies in accordance with the authorisation. Those steps include investigating the suspected contravention and ensuring compliance with a "monitoring law" (an expression which includes[77] the Migration Act 1958 (Cth) ("the Migration Act")). Section 32(1)(a) provides that the maritime officer may also exercise maritime powers "to investigate or prevent any contravention of an Australian law that the officer suspects, on reasonable grounds, the vessel ... to be involved in".

    [77]s 8.

63. The limits on the exercise of maritime powers which are relevant to this case were provided by s 41(1)(c). That provision limited the exercise of maritime powers in relation to the Indian vessel (a "foreign vessel"[78]) in two relevant ways.  First, there was a geographical limitation:  the powers could be exercised only in the contiguous zone.  Second, there was a purposive limitation expressed as disjunctive alternatives:  to "investigate a contravention of a customs, fiscal, immigration or sanitary law prescribed by the regulations that occurred in Australia"[79] or to "prevent a contravention of such a law occurring in Australia"[80]. 

    [78]s 8.

    [79]s 41(1)(c)(i).

    [80]s 41(1)(c)(ii).

64. It may be noted that the first purpose (investigating a contravention) uses the phrase "that occurred in Australia".  Hence, although a vessel may be involved in a contravention if it is intended to be used in contravention of the law, no contravention (even in that extended sense) had occurred in Australia before the Indian vessel was intercepted and detained. It follows that, even if, as the Commonwealth parties submitted, the relevant provisions of the MP Act may be read as using the word "investigate" with some extended meaning encompassing steps taken to prevent a future contravention, the first of the purposes referred to in s 41(1)(c) was not engaged in this case. Rather, the second purpose (preventing a contravention) was. And s 32(1)(a) provides power for a maritime officer to exercise maritime powers not only to investigate any (intended) contravention of an Australian law that the officer suspects, on reasonable grounds, the vessel to be involved in, but also to prevent that contravention.

65. The relevant contraventions of Australian law which it was sought to prevent by the exercise of maritime powers were contraventions of the Migration Act. In particular, s 42(1) of the Migration Act provided, at the times relevant to this case, that, subject to some presently irrelevant exceptions, "a non‑citizen must not travel to Australia without a visa that is in effect". In addition, if the Indian vessel had entered Australian territorial waters, one or more persons on, or associated with, the vessel may have committed an offence against s 229 of the Migration Act (dealing with the carriage of non‑citizens to Australia without documentation) or against one of ss 233A and 233C (dealing with people smuggling and aggravated people smuggling).

66. Part 3 of the MP Act (ss 50‑78) identifies "maritime powers". They include the power[81] to detain a vessel and powers[82] with respect to "placing and moving persons" on a detained vessel.  The central focus of debate in this case is upon the latter group of maritime powers:  the powers with respect to placing and moving persons on a detained vessel.

    [81]s 69(1).

    [82]Div 8 of Pt 3 (ss 71‑75).

67. Section 72 of the MP Act applies[83] to a person who is on a detained vessel when it is detained, or is reasonably suspected of having been on a detained vessel when it was detained. Sub‑sections (2)‑(4) of s 72 give a maritime officer three powers in respect of such a person: power to return the person to the detained vessel[84]; power to require the person to remain on the detained vessel until it is either taken to a port or other place, or permitted to depart from the port or other place[85]; and power to detain 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."[86]

    The last power (to detain and take) is the central focus of this case.

    [83]s 72(1).

    [84]s 72(2).

    [85]s 72(3).

    [86]s 72(4).

68. Section 72(5) provides that "[f]or the purposes of taking the person to another place" a maritime officer may within or outside Australia place the person on a vessel or an aircraft, restrain the person on a vessel or an aircraft or remove the person from a vessel or an aircraft. Section 74 provides that:

    "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."

    The power to detain and take to a place outside Australia

69. The plaintiff claims that he was unlawfully detained for all or part of the time he was on board the Commonwealth ship. That allegation presents a number of issues about the construction and application of s 72(4) of the MP Act and, in particular, its provision that "[a] maritime officer may detain the person and take the person, or cause the person to be taken ... to a place outside the migration zone, including a place outside Australia". Those issues may be considered by reference to three questions. What is a "place outside Australia"? Once a decision has been taken about the place to which a person is to be taken, can the power be re‑exercised and another place chosen? Must the maritime officer be satisfied, on reasonable grounds, that "it is safe for the person to be" in the place to which the person is to be taken?

70. The first two questions (What is a place outside Australia? and Can the power be re‑exercised?) both bear upon whether India was a destination to which the plaintiff might be taken.  The Commonwealth parties submitted, in effect, that he might be taken towards India in the hope that he might later be given permission to land.  And they sought to support that submission by arguing that the power to detain and take may be exercised and re‑exercised as occasion requires. 

71. These reasons will show why these arguments should be rejected.  The place to which a person is to be taken under s 72(4) must be a place which, at the time the destination is chosen, the person taken has a right or permission to enter.  The plaintiff had neither the right to enter India nor permission to do so.  The journey to India, and the plaintiff's consequential detention, were not done in execution of the statutory power. 

72. The third question (about safety) bears upon whether the plaintiff could have been taken to a place where there is a real risk that he would be persecuted, including, in this case, the country of his nationality (Sri Lanka).  If, as the Commonwealth parties contended, the plaintiff could have been taken to Sri Lanka, it may be arguable that the power to take given by s 72(4) is a power to take to any place chosen by the maritime officer (with or without direction from superiors).  But these reasons will show why this contention should also be rejected.

73. Only once the issues presented by these three questions have been identified and resolved is it useful to consider the more particular questions asked by the parties in their Special Case. All of those more particular questions depend, either directly or indirectly, upon the proper construction of the MP Act.

74. It is necessary to approach the construction of the MP Act bearing in mind some relevant general principles.

    Applicable general principles

    Compulsive powers

75. The MP Act gives officers of the Commonwealth compulsive powers over vessels and persons. The powers may be exercised on reasonable suspicion of intention to contravene one or more Australian laws.

76. It is well-established that statutory authority to engage in what would otherwise be tortious conduct (in this case detaining a vessel and then detaining and taking a person to a place chosen by an officer of the Commonwealth) must be clearly expressed in unmistakable and unambiguous language[87].  The statutory powers at issue in this case are to be construed in accordance with that principle. 

    [87]See, for example, Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15.

77. But in this case there is a further and important consideration.  The particular powers were to be exercised outside Australia.

    Exorbitant powers

78. As has been noted, the power to detain the Indian vessel (a foreign vessel) was exercised in Australia's contiguous zone.  The contiguous zone is an area in which, under Art 33 of UNCLOS, the coastal state may "exercise the control necessary to ... prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea".  The contiguous zone is not, in international law, a part of Australia's territorial sea[88] or, in Australian domestic law, "part of Australia"[89].  In international law, the contiguous zone is an area of the high seas in which Australia, as the coastal state, exercises no sovereignty or jurisdiction, only certain rights or powers of enforcement[90].

    [88]UNCLOS, Arts 3, 4 and 33.  See also Seas and Submerged Lands Act 1973 (Cth), ss 3(1) (definition of "contiguous zone"), 5, 6, 13A and 13B.

    [89]Acts Interpretation Act 1901 (Cth), s 15B(1), (2) and (4).

    [90]O'Connell, The International Law of the Sea, (1984), vol 2 at 1058; Rothwell and Stephens, The International Law of the Sea, (2010) at 78.

79. It may be accepted that exercising the control necessary to prevent infringement of laws of the kind described in Art 33 of UNCLOS would include a coastal state stopping in its contiguous zone an inward‑bound vessel reasonably suspected of being involved in an intended contravention of one of those laws.  Because there must be a power to stop the vessel, it may be accepted that there is a power to detain the vessel (at least for the purposes of investigating whether there is a threat of a relevant contravention).  But whether, for the purposes of international law, Art 33 permits the coastal state to take persons on the vessel into its custody or to take command of the vessel or tow it out of the contiguous zone remains controversial[91]. 

    [91]See, for example, Shearer, "Problems of Jurisdiction and Law Enforcement against Delinquent Vessels", (1986) 35 International and Comparative Law Quarterly 320 at 330; Rothwell and Stephens, The International Law of the Sea, (2010) at 80.

80. It is not necessary or appropriate to attempt to resolve any controversy about the proper construction of Art 33.  The Commonwealth parties did not submit that international law recognises the right of a coastal state to take steps of the kind described with respect to vessels or persons on vessels stopped and detained in the contiguous zone, and they accepted, correctly, that there is controversy about these matters.  They did submit that Australia had exclusive jurisdiction over the Commonwealth ship and all persons on it.  So much may readily be accepted, but it is a conclusion that is beside the point and it does not deny the exorbitant character of the powers in issue. 

81. Recognising that Australia had exclusive jurisdiction over the Commonwealth ship and all aboard it is beside the point because the questions about the scope of the power given by the MP Act to detain and take the plaintiff to a place outside Australia remain unanswered.

82. The Special Case proceeds from the agreed premise that the plaintiff, and others on the Indian vessel, were persons to whom s 72 of the MP Act applied. Even if, contrary to that fact, the plaintiff and others from the Indian vessel were to be treated as having boarded the Commonwealth ship voluntarily (because, as is agreed, the Indian vessel had become unseaworthy), officers of the Commonwealth thereafter sought to exercise the powers given by s 72 of the MP Act. More particularly, in purported execution of those powers, Australian officials alone determined where the plaintiff and others were to be taken and held them aboard the Commonwealth ship for that purpose. Those are powers properly seen as exorbitant powers which "run counter to the normal rules of comity among civilised nations"[92]. 

    [92]Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210 at 254 per Lord Diplock.

83. The exorbitant nature of the powers is further reason to construe[93] the provisions strictly. 

    [93]Siskina [1979] AC 210 at 254‑255 per Lord Diplock.

    Statutory misfire?

84. The Commonwealth parties submitted that certain constructions of the MP Act would "strangle" the power given by that Act. It may be accepted that the MP Act should not readily be construed in a way which would make it misfire by stripping it of some relevant practical operation. But no consideration of that kind arises in this case.

85. There was, and could be, no dispute that a maritime officer has taken a person to a place outside Australia only when, at that place, the maritime officer ceases[94] to detain the person by discharging the person from custody.  And a maritime officer cannot discharge the person from custody in a jurisdiction other than Australia without the permission (or at least acquiescence) of that jurisdiction. 

    [94]s 97.

86. If the power given by s 72(4) did not permit taking the plaintiff to India (because he had no permission to land there) and did not permit taking him to Sri Lanka (because he asserted a fear of persecution in that country), a maritime officer, nevertheless, could take the plaintiff either to a place in Australia or to a place outside Australia. More particularly, the plaintiff could be taken to any country with which Australia had made an arrangement for reception of such persons. And it is always to be recalled that, at the time of the events giving rise to this case, Australia had made arrangements with both the Republic of Nauru and the Independent State of Papua New Guinea for reception and processing of unauthorised maritime arrivals. (Both Nauru and Papua New Guinea were then designated under s 198AB of the Migration Act as regional processing countries.)

87. Whether the particular arrangements made with Nauru and Papua New Guinea permitted Australian officials to take persons detained in the contiguous zone to those countries was not explored in argument. But of immediate relevance to the issues of construction is the observation that Australia can make, and has made, standing arrangements with other countries which permit Australian authorities to take foreign nationals to those other countries. Hence, submissions that the MP Act would misfire, or that the power given by the Act would be "strangled", if the plaintiff's construction of the Act were adopted are properly seen as misplaced. They are submissions that ignore the making of standing arrangements of the kind described.

    Text and context

88. In opening the case for the Commonwealth parties, the Solicitor‑General of the Commonwealth submitted[95] that this Court should look at the questions which arise in the matter through a "prism" or "framework" in which "the Parliament in the expressed terms it has used and the expressed limitations on power of which there are some, has quite deliberately drawn a careful balance between the needs of law enforcement in a unique maritime environment, the rights and interests of persons and Australia's international obligations". And as developed, the submissions for the Commonwealth parties appeared, at least at times, to approach the issues of construction of the MP Act on the footing that regard should be had only to the text of the MP Act and that its text should be given the fullest and most ample construction possible[96].

    [95][2014] HCATrans 227 at 3652‑3665.

    [96][2014] HCATrans 228 at 4458‑4479.

89. This Court has emphasised many times the need to grapple with the text of a statute. And of course the MP Act must be construed with proper regard for the practical context within which it will operate. As the Replacement Explanatory Memorandum for the Bill which became the MP Act said[97], "[e]nforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land‑based operations and constrained by the practicalities involved in sea‑based work". But no statute can be construed as if it stands isolated from the wider legal context within which it must operate. The MP Act cannot be construed by searching only for the largest meaning its words could bear. The compulsive and exorbitant nature of the powers precludes that approach.

    [97]Australia, Senate, Maritime Powers Bill 2012, Replacement Explanatory Memorandum at 1.

    A place outside Australia

90. The power given by s 72(4) to detain and take a person to a place outside Australia is understood better as a single composite power than as two separate powers capable of distinct exercise. That is, the power to detain referred to in s 72(4) is better understood as given in aid of the power to take. And together, the words "detain" and "take", read in the context provided by s 72(5)[98], show that the power is one which may be exercised without the consent of the person concerned. 

    [98]"For the purposes of taking the person to another place, a maritime officer may within or outside Australia:

    (a)place the person on a vessel or aircraft; or

    (b)restrain the person on a vessel or aircraft; or

    (c)remove the person from a vessel or aircraft."

91. The power to detain and take is to take to "a place". As has been explained, the place to which a person is taken must be a place at which the maritime officer can discharge the person from the detention that has been effected for the purposes of taking. In the words of s 72(5)(c), the place must be one at which the maritime officer may remove the person from the vessel or aircraft by which the person has been taken to that place. At least ordinarily, the "place" would be within the jurisdiction of another state. That would usually be so if the taking is effected by aircraft and it may be doubted that some wider operation should be given to the power when the taking is effected by a vessel. It may be, however, that "a place" would include a vessel subject to the jurisdiction of another state. These questions about the outer limits of the power need not be decided in this case.

92. What is presently important is that the power is to take to "a place", not "any place", outside Australia.  The use of the expression "a place" connotes both singularity and identification.  That is, the power is to take to one place identified at the time the taking begins, not to whatever place outside Australia seems at the time of discharge to be fit for that purpose.  Because the place to which a person may be taken is an identified place at which the person may be discharged from Australian custody, the destination of the taking must be a place which, at the time it is selected, the person has the right or permission to enter.

93. This understanding of the power is required by the text of s 72(4).  It is reinforced by recognition of the compulsive and exorbitant nature of the power.  It is further reinforced by considering whether the power can be exercised and re‑exercised.

    Successive destinations?

94. If a decision is made to take a person to an identified place outside Australia, can the power be re‑exercised and a different place chosen?  Is the power given by s 72(4) one to be exercised "from time to time as occasion requires"[99]?

    [99]Acts Interpretation Act 1901 (Cth), s 33(1).

465. No such question arises in this case. The plaintiff's argument appears to involve the notion that the benefits of the Migration Act, which are available to a non‑citizen within Australia, are also available to a non‑citizen outside Australia. The terms of the Migration Act do not support that notion[327]. In addition, as will be explained, the power of the Executive under the common law to prevent the entry into Australia of a non‑citizen without a visa who is outside Australia, which is the power under which the relevant decision was made in this case, is not abrogated by the Migration Act. That is so, notwithstanding that the non‑citizen might wish to make a claim for refugee status under the Migration Act.

     [327]Plaintiff M47/2012 v Director‑General of Security (2012) 251 CLR 1 at 101‑102 [260]‑[261], 184‑187 [506]‑[514]; [2012] HCA 46.

466. The plaintiff also placed reliance on this Court's decision in Plaintiff M61/2010E v The Commonwealth ("Plaintiff M61")[328].  This decision does not assist his argument.  

     [328](2010) 243 CLR 319; [2010] HCA 41.

467. Plaintiff M61 was concerned with the operation of provisions of the Migration Act in respect of non‑citizens who were in Australia, albeit unlawfully. This Court held that the exercise of power under s 46A or s 195A of the Migration Act must be procedurally fair and in conformity with the law.

468. As French CJ and Kiefel J observed in Plaintiff S10/2011 v Minister for Immigration and Citizenship[329], the decision in Plaintiff M61 applied only to non‑citizens within Australia who were able to invoke the provisions of s 46A(2) of the Migration Act. In the present case, what the plaintiff refers to as the "taking decision" was not made under the Migration Act. Whether it was within the executive power of the Commonwealth is a different question.

     [329](2012) 246 CLR 636 at 652 [42]; [2012] HCA 31.

469. In any event, the circumstance that India is not a party to the Convention does not mean that the plaintiff was at risk of refoulement to Sri Lanka.  The issue is a practical one.  Australia's non-refoulement obligations under the Convention are satisfied if the country that the plaintiff is taken to offers effective protection as a matter of fact, whether or not that country is party to the same treaties as Australia.  In Patto v Minister for Immigration and Multicultural Affairs, French J (as his Honour then was) explained[330] the scope of the non‑refoulement obligation in the Convention thus:

     "Return of the person to a third country will not contravene Art 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason."

     [330]Patto v Minister for Immigrationand Multicultural Affairs (2000) 106 FCR 119 at 131 [37].

470. As noted above, it was not suggested that the plaintiff was at a practical risk of refoulement by India to Sri Lanka.

     Acting under dictation?

471. The plaintiff's third contention under this rubric was that his being taken towards India was unlawful because the maritime officers who took him there were acting pursuant to an unlawful policy or, alternatively, under the dictation of the NSC. 

472. The plaintiff argued that the maritime officers who took the plaintiff towards India acted under the dictation of the NSC in that they failed to determine themselves whether taking the plaintiff to India was appropriate.  The plaintiff argued that a repository of a power must turn his or her own mind to the exercise of power, rather than act at the direction or behest of another.  It was said that the maritime officers who took the plaintiff towards India failed to do that in this case, in that they simply implemented the decision of the NSC without independently considering whether it was appropriate to do so.

473. Once again, the plaintiff's argument is founded upon a misunderstanding of the operation of s 72(4) of the Act. As explained above, a maritime officer who acts in accordance with superior orders is not acting contrary to the requirements of s 72(4). There may be cases where a maritime officer will have no alternative but to make the choice of destination for himself or herself; but that possibility may be put to one side in this case because the maritime officer who had detained the plaintiff was obliged to obey the orders of the Executive government which were communicated through the chain of command. As noted above, in such circumstances the terms of s 72(4), in contrast to the terms of s 74, do not suggest that a maritime officer given such an order is obliged, or even permitted, to exercise an independent discretion in such a case; rather, the terms of s 72(4) facilitate the execution by the maritime officer of orders received through the chain of command.

474. The chain of command in Australia's naval and military forces ensures those forces remain under civilian control.  Only the clearest language could require military officers to exercise powers independently of superior civilian orders.  Section 72(4) does not exhibit any such intention.  As noted above, it contemplates that maritime officers will exercise their powers according to the exigencies of the existing command structure within which maritime officers operate.  The observation by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Haskins v The Commonwealth[331] in relation to members of the ADF is equally applicable to Customs officers and members of the AFP:  "Obedience to lawful command is at the heart of a disciplined and effective defence force."

     [331](2011) 244 CLR 22 at 47 [67]; [2011] HCA 28.

475. For the sake of completeness, it should be noted that the plaintiff advanced an argument in his written submissions that the defendants purported to exercise the powers conferred by s 72(4) for the improper purpose of generally deterring other non‑citizens from seeking to enter Australia without a visa.  The defendants objected to this argument being entertained by the Court on the basis that it was outside the terms of the Special Case.  That objection should be upheld.  There is no foundation in the agreed facts for such an argument.  In particular, there is no foundation for an inference that the plaintiff was being singled out for harsh treatment to make a point to others.

     Detention pursuant to non‑statutory executive power

476. Because of the view I have taken in relation to the scope of authority conferred on a maritime officer by s 72(4) of the Act, it is strictly unnecessary to decide the questions raised in relation to the scope of the non‑statutory power of the Commonwealth. Nevertheless, it is desirable to note the deficiencies in the plaintiff's arguments on Question 3.

477. The plaintiff advanced three arguments with respect to the exercise of non‑statutory executive power to prevent non‑citizens from entering Australia. He argued, first, that such a power does not exist; secondly, that if it does, it was abrogated by the Act; and thirdly, that even if it were not abrogated, the power did not permit the plaintiff to be detained for the purpose of being taken to India. These arguments may now be addressed in turn.

     A want of executive power

478. The plaintiff contended that the Commonwealth lacks non‑statutory executive power to prevent non‑citizens entering Australia and to detain them for that purpose.  This contention cannot be accepted.   

479. It is well‑settled that the power of the Executive government under the common law to deny entry into Australia of a non‑citizen such as the plaintiff, including by compulsion, is an incident of Australia's sovereign power as a nation.  Shortly after the creation of the Commonwealth, in Robtelmes v Brenan, Griffith CJ said[332] that "there can be no doubt" as to the correctness of the following observations of the Judicial Committee of the Privy Council in Attorney‑General for Canada v Cain[333]:

     "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests".

     [332]Robtelmes v Brenan (1906) 4 CLR 395 at 400; [1906] HCA 58. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 170 [21]; [2002] HCA 48; Plaintiff M47/2012 v Director‑General of Security (2012) 251 CLR 1 at 154 [402].

     [333][1906] AC 542 at 546. See also Ah Yin v Christie (1907) 4 CLR 1428 at 1431; [1907] HCA 25.

480. In Robtelmes v Brenan, O'Connor J concluded[334] that the Commonwealth Parliament, having the power to exclude aliens, may "leave the question of the mode or place of deportation to the discretion of the government."

     [334]Robtelmes v Brenan (1906) 4 CLR 395 at 422.

481. That the observations of the Privy Council in Attorney‑General for Canada v Cain remained an authoritative statement of the law was recognised in the judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration[335].  

     [335](1992) 176 CLR 1 at 29‑30.

482. More recently, in Ruddock v Vadarlis French J (as his Honour then was) said[336]:

     "the Executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion.  This does not involve any conclusion about whether the Executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude.  The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering."

     [336]Ruddock v Vadarlis (2001) 110 FCR 491 at 543 [193].

483. That power was "sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result."[337]  That power necessarily includes the power to do all things necessary to exercise the power, including physically restraining non‑citizens from entering Australia[338].  That the position is different in relation to non‑citizens who are actually within Australia, as stated in Chu Kheng Lim v Minister for Immigration[339], does not suggest that Ruddock v Vadarlis was wrongly decided.

     [337]Ruddock v Vadarlis (2001) 110 FCR 491 at 544 [197].

     [338]Attorney‑General for Canada v Cain [1906] AC 542 at 546; Ruddock v Vadarlis (2001) 110 FCR 491 at 544 [197].

     [339](1992) 176 CLR 1 at 19.

484. It is settled that the executive power referred to in s 61 of the Constitution includes powers necessary or incidental to the execution and maintenance of the laws of the Commonwealth[340]. Moreover, it is not in doubt that the executive power referred to in s 61 of the Constitution extends to the making of war and peace and the acceptance of obligations between nations even though these matters may involve extra‑territorial action by Australian forces[341]. Given that it is clear that the executive power extends thus far, recognition that it extends to the compulsory removal from Australia's contiguous zone of non‑citizens who would otherwise enter Australia contrary to the Migration Act can hardly be controversial[342]. 

     [340]R v Kidman (1915) 20 CLR 425 at 440‑441; [1915] HCA 58; Barton v The Commonwealth (1974) 131 CLR 477 at 498; [1974] HCA 20; Davis v The Commonwealth (1988) 166 CLR 79 at 109‑110; [1988] HCA 63; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 464; [1997] HCA 36; Williams v The Commonwealth (2012) 248 CLR 156 at 184 [22], 190 [31]; [2012] HCA 23.

     [341]Barton v The Commonwealth (1974) 131 CLR 477 at 505; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 61‑63 [130]‑[131], 89 [233]; [2009] HCA 23.

     [342]Moore, Act of State in English Law, (1906) at 93‑95.

485. It is also to be noted that the power exercised by the Executive to instruct maritime officers to take the plaintiff to India was not exercised in respect of a vessel going about its lawful occasions, but in respect of a vessel in Australia's contiguous zone carrying non‑citizens who were, as a matter of undisputed fact, seeking to enter Australia contrary to s 42 of the Migration Act. If the Indian vessel had completed its voyage, those operating it would have contravened the provisions of s 229 of the Migration Act (which proscribes the carriage to Australia of non‑citizens without visas), and s 233A or s 233C (which proscribe forms of people smuggling). The power of the Executive government was exercised in the pursuit of a policy which accords with the purposes of ss 31 and 32 of the Act to ensure compliance with Australian law by preventing a contravention of s 42 of the Migration Act.

486. It may be accepted, for the sake of argument, that the exercise of executive power to prevent the entry into Australia of a non‑citizen without a visa was subject to constraints under public law principles which ensure that administrative action is lawful.  In particular, it may be accepted that, even though the plaintiff had no right to enter Australia, a decision to exercise a greater level of compulsion than was necessary to prevent his entry into Australia would be unlawful at common law.  However, as noted above, the facts agreed in the Special Case do not support the conclusion that the movement of the plaintiff towards India involved the use of force in excess of what was necessary to ensure that the plaintiff did not complete his travel to Australia. 

487. The plaintiff had come from India, where there was no suggestion that he was unsafe.  No other destination, other than Australia, is identified in the Special Case as a place to which the plaintiff might safely be taken.  There was no suggestion that the decision that the plaintiff should be taken to India was made with a view to prolonging his detention beyond that necessary to return him safely to a place other than Australia.  There was no suggestion that any attempt to negotiate an agreement with the Indian authorities to permit the plaintiff to disembark in India was so devoid of prospects as to be a waste of time.  To decide, in these circumstances, that the best way to shorten the duration of the plaintiff's detention, other than by bringing him directly to Australia, was to take him to India and to seek to negotiate an agreement that he be received at that destination cannot be said to involve use of the power of the Executive government in excess of what was necessary to prevent the plaintiff's entry into Australia.

     Has the power been abrogated?

488. The plaintiff contended that, if the Court were to hold that a non‑statutory executive power to prevent persons from entering Australia does exist, then that power was abrogated by the Act and the Migration Act, both of which were said to operate as part of a single statutory scheme, displacing any non‑statutory executive power with respect to the exercise of power concerning immigration into Australia.

489. In Ruddock v Vadarlis, the Full Court of the Federal Court of Australia held[343], by majority, that the Migration Act did not abrogate executive power in this regard. The plaintiff argued that that case was wrongly decided. That argument should be rejected.

     [343](2001) 110 FCR 491 at 514 [94], 545 [202].

490. Powers exercisable by the Executive government under the common law are not limited by international law obligations not incorporated into domestic law[344]. The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by an Act of the Commonwealth Parliament[345].  In point of constitutional principle, an international treaty made by the Executive government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament.  It is only the Parliament that may make and alter our municipal law[346].

     [344]R (Bancoult) v Foreign Secretary (No 2) [2009] AC 453 at 490 [66], 507 [116]; New South Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337 at 493-494; [1975] HCA 58.

     [345]Chow Hung Ching v The King (1948) 77 CLR 449 at 478; [1948] HCA 37; Bradley v The Commonwealth (1973) 128 CLR 557 at 582; [1973] HCA 34; Simsek v Macphee (1982) 148 CLR 636 at 641‑642; [1982] HCA 7; Koowarta v Bjelke‑Petersen (1982) 153 CLR 168 at 211‑212, 224‑225; Kioa v West (1985) 159 CLR 550 at 570; [1985] HCA 81; Dietrich v The Queen (1992) 177 CLR 292 at 305; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286‑287, 298, 303‑304, 315; J H Rayner Ltd v Department of Trade and Industry [1990] 2 AC 418 at 500.

     [346]Simsek v Macphee (1982) 148 CLR 636 at 641‑642.

491. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[347], McHugh and Gummow JJ observed that:

     "in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision‑making under powers conferred by statute and without specification of those obligations …  [S]uch obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error."

     [347](2003) 214 CLR 1 at 33 [101]; [2003] HCA 6.

492. Under the Migration Act, the protection obligations imposed on the Executive government are afforded to non‑citizens who are within Australian territory. The authorities suggest that this limitation is consistent with the circumstance that the protection obligations imposed by the Convention concern rights to be afforded to persons within the territory of Contracting States[348]. However that may be, neither the Act nor the Migration Act limits the power of the Executive government to prevent the entry into Australia of non‑citizens without visas who claim to be refugees, and the consequent engagement of the Migration Act. The continued existence of the power of the Executive under the common law to use compulsion to prevent the unauthorised entry into Australia of non‑citizens outside Australia is consistent with the provisions of the Migration Act, in particular, s 42.

     [348]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15 [42]; R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 at 29‑31 [15]‑[18]; Sale v Haitian Centers Council Inc 509 US 155 at 183, 187 (1993).

     The power did not permit detention

493. The plaintiff's third contention was that any non‑statutory executive power to prevent persons from entering Australia which may still exist does not extend to detaining the plaintiff and taking him to India since the power is subject to the same constraints as apply to the exercise of power under s 72(4) of the Act, and those constraints were infringed.

494. For the reasons already given in relation to s 72(4) of the Act, this contention should be rejected.

495. Finally under this rubric, it should be noted that the sooner the plaintiff was brought into Australia, the sooner he would have been lawfully detained by reason of the operation of s 189 of the Migration Act. On no view of the facts would the plaintiff have been at liberty during the period in which he claims to have been falsely imprisoned. It may well be that the circumstances of the plaintiff's detention at sea were a greater hardship than they would have been had he been detained on land in Australia; yet the fact remains that the plaintiff could not have been at liberty on land in Australia at any time material to his case. The extent to which this difficulty affects the plaintiff's case will be considered in the discussion of Question 6.

     Was the plaintiff's detention subject to an obligation to afford the plaintiff procedural fairness?

496. The plaintiff contended that the maritime officers aboard the Commonwealth ship were obliged to give the plaintiff an opportunity to be heard in respect of the exercise of any statutory or (if it exists) non‑statutory power to take the plaintiff to a place outside Australia.

     Procedural fairness in the exercise of power under the Act

497. The plaintiff's argument under this heading took as its starting point the proposition that the exercise of power under s 72(4) of the Act had the capacity to prejudice his right to liberty. The exercise of that power was said, therefore, to be subject to the provision of procedural fairness. The plaintiff cited the decision of this Court in Saeed v Minister for Immigration and Citizenship, in which French CJ, Gummow, Hayne, Crennan and Kiefel JJ said[349]:

     "In Annetts v McCann[350] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power[351].  Brennan J in Kioa v West[352] explained that all statutes are construed against a background of common law notions of justice and fairness.  His Honour said:

     '[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature".  The true intention of the legislation is thus ascertained.'"

     [349](2010) 241 CLR 252 at 258 [11]; [2010] HCA 23.

     [350](1990) 170 CLR 596; [1990] HCA 57.

     [351]Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.

     [352](1985) 159 CLR 550 at 609 (citation omitted).

498. The plaintiff argued that the Act did not express an intention to dispense with the observance of procedural fairness as a condition of the exercise of power under s 72(4). Indeed, the plaintiff asserted that provisions of the Act indicate that observance of procedural fairness was required. The plaintiff submitted that prior to the making of any decision under s 72(4) as to where the plaintiff was to be taken, the defendants were required, at a minimum, to:

     (a)notify him that consideration was being given to the possible exercise of power under s 72(4); and

     (b)give him an opportunity to be heard as to that proposed exercise of power, including whether he was a person in respect of whom Australia owes non‑refoulement obligations and whether his safety might be threatened if taken to a particular place.

499. The plaintiff relied here upon s 74, which, as noted above, requires a maritime officer not to "place" or "keep" a person in a particular place unless he or she is satisfied on reasonable grounds that it is "safe for the person to be in that place". That provision was said to contemplate that maritime officers would allow persons under their control to comment on whether it would be safe to keep them in a particular place. The position was said to be the same with respect to the exercise of power under s 72(4), which was said to contemplate that maritime officers would allow persons to comment on whether it would be safe to take them to a particular place.

500. The short answer to the plaintiff's arguments under this rubric is that they proceed upon an erroneous understanding of the operation of s 72(4) of the Act in the circumstances of this case. Here, there was no occasion under the statute for a maritime officer to consult with the plaintiff as to the destination to which he was to be compulsorily removed.

501. Once again, the plaintiff's contentions depend upon a misplaced focus on s 72(4) as the source of the decision to take him to India.  Section 72(4) confers a power upon maritime officers to be exercised within the context of the chain of command.  Even if it might be the case that in some circumstances a maritime officer would be obliged to make a choice under s 72(4) on his or her own initiative, it does not contemplate that such officers may decide whether or not to comply with superior orders, which pre-empt any such initiative. 

502. Accordingly, the maritime officers came under no obligation to afford the plaintiff an opportunity to be heard as to his preferred destination.  The maritime officers on the Commonwealth ship had no decision‑making function in the circumstances of this case, and, even if they did, they had no authority to disobey the orders they had been given.  Hence, there was no occasion for them to question the plaintiff about the matters referred to in the Special Case. 

503. The plaintiff's argument fails to recognise the significance of the differences between s 72(4) and s 74 adverted to earlier in these reasons. It may be that if the maritime officers on the Commonwealth ship were minded to place the plaintiff on Indian soil, observance of s 74 of the Act would have obliged them to make inquiry of the plaintiff as to whether he would be "safe" in India. But that occasion did not arise.

504. The foregoing is sufficient to dispose of this aspect of the plaintiff's case, but two further difficulties with the plaintiff's argument may be noted briefly. First, a decision to take a detained person to a particular country is likely to involve difficult issues of international relations. It is hardly to be supposed that such a decision would be left to a maritime officer upon hearing where a detainee would like to be taken. Secondly, the plaintiff had no right under Australian law to enter Australia. Section 72(4) operated indifferently to any preference on the part of the plaintiff to come to Australia rather than to some other place.

     Procedural fairness in the exercise of non‑statutory executive power

505. Once again, because of the view I have taken in relation to the sufficiency of the authority conferred on the maritime officers who dealt with the plaintiff under s 72(4) of the Act, it is strictly unnecessary to answer Question 5, which raises this issue. It is, however, desirable to note some of the difficulties in the plaintiff's arguments.

506. The plaintiff contended that the exercise of non‑statutory executive power was, at least, capable of being conditioned by procedural fairness.  The plaintiff argued that the key question therefore was whether there was any reason to conclude that procedural fairness did not apply to the exercise of non‑statutory executive power in this case.  The plaintiff argued that there was not. 

507. The defendants submitted that, if it were accepted that the exercise of prerogative power was amenable to judicial review[353], the power to exclude non‑citizens from entering the territory of Australia is unsuited to examination by the courts.  This is because it involves consideration of sensitive political and public policy considerations involving matters of defence, border protection and international relations. 

     [353]Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 65 [69]; [2005] HCA 50.

508. The exercise of the executive power to prevent entry into Australia is not limited by an implied obligation to afford persons procedural fairness for the same reasons that s 72(4) of the Act is not so limited. As a matter of municipal law, the Commonwealth may exercise its sovereign power to prevent a person who has no right to enter Australia from doing so.

509. The plaintiff, as a non‑citizen, had no common law right to enter Australia[354]. Nor was the plaintiff entitled to be brought to Australia given the provisions of s 42 of the Migration Act. These considerations, together with the absence of an occasion for the maritime officers on the Commonwealth ship to give independent consideration to the plaintiff's wishes in relation to his destination, lead to the conclusion that the plaintiff was not denied any common law entitlement to have his wishes considered as a condition of the exercise of the power of the Executive government to order that he be taken to India with a view to his disembarkation there.

     [354]Ruddock v Vadarlis (2001) 110 FCR 491 at 519‑521 [109]‑[125]; Zines, "The Inherent Executive Power of the Commonwealth", (2005) 16 Public Law Review 279 at 293.

     Question 6:  the entitlement to damages

510. Given that the plaintiff's contentions on the other issues have been rejected, the answer to Question 6 must be "No".  It is, therefore, strictly unnecessary to determine the issues raised by Question 6 because the issues of liability on which they depend should be resolved against the plaintiff.  But since those issues were argued by both sides, and because it is undesirable that the difficulties which confront a claim of this kind should be overlooked, it is desirable to note those difficulties. 

511. In R (Lumba) v Secretary of State for the Home Department[355] ("Lumba's Case"), the Supreme Court of the United Kingdom held, by majority, that where a claimant had been directly and intentionally imprisoned by a public authority empowered to detain the claimant, the public authority bore the burden of showing lawful justification for the imprisonment.  The discharge of that burden required the public authority to prove that the power to detain was exercised lawfully; and a failure in that regard meant that, by reason of the breach of principles of public law in relation to the exercise of the power to detain, an action at common law for damages for false imprisonment would be made out[356].  A differently constituted majority held, however, that if the power to detain had been exercised lawfully in accordance with public law principles, it was inevitable that the claimant would have been detained, and the claimant would therefore be entitled to recover only nominal damages[357].

     [355][2012] 1 AC 245.

     [356]Lumba's Case [2012] 1 AC 245 at 274‑276 [64]‑[72], 280 [88]‑[89], 303 [175], 308 [195], 312 [207]‑[208], 321 [239], 321‑322 [242]‑[243], 324 [251].

     [357]Lumba's Case [2012] 1 AC 245 at 281‑284 [95]‑[101], 301 [169], 316 [222], 319 [233], 320 [236], 324‑325 [253]‑[256], 351 [335], 352 [342], 359‑360 [361].

512. In the present case, the issue is as to the duration of lawful detention. If the plaintiff had been brought directly to Australia, he would have been detained immediately under s 189 of the Migration Act. In those circumstances, the plaintiff would have been in lawful detention at all material times, whether the authority for that detention derived from s 72(4) of the Act or s 189 of the Migration Act. In this scenario, there would be no need for a lawfully made executive decision to justify the plaintiff's ongoing detention. The present case differs from Lumba's Case in this respect.  This difference might well leave the plaintiff in a worse position than the claimant in Lumba's Case, so far as a claim for damages for unlawful imprisonment is concerned, in that even nominal damages would not be recoverable.

     The questions for determination

513. The questions stated by the parties for determination by the Court should be answered as follows:

     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;

     (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.

     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.

     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.

     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.

     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.

     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 [is he] entitled to claim damages in respect of that detention?

     Answer:         No.

     7. Who should pay the costs of this Special Case?

     Answer:         The plaintiff.

     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.