CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015)

Last Updated: 28 January 2015

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

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] 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] 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."

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. 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. 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]

The Maritime Powers Act and international law

The MPA provides "enforcement powers for use in, and in relation to, maritime areas." [5] [6] [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] 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 s 7 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] [10] 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."

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] 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. 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. 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. 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

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] 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] [15] [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] [18] [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."

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

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] 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.

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] [23] [24] [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]

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] [28] [29] 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.

The Seas and Submerged Lands Act

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] [32] 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] 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] [35] 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.

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] [37] [38] relevant domestic legislation. 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

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] [40] for authorising their exercise and can only be exercised by maritime officers who are the repositories of such authority.

Maritime powers — the geographical dimension

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] [42] [43] [44] The MPA does not authorise the exercise of powers in another country except in certain circumstances, none of which apply in this case [45] [46] 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] 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).

Maritime powers — content

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] [50] [51] 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."

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

Maritime powers are exercised within a purposive framework [53]

(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].

Maritime powers — the chain of command

Authorising officers may authorise the exercise of maritime powers in relation to a vessel in certain circumstances [59] [60] if the authorising officer suspects, on reasonable grounds, that the vessel is involved in a contravention of an Australian law [61] [62] [63] [64] Migration Act [65] 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. 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. 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] [67] 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] 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

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.

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. 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."

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

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. 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. 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] 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. 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. 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. 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. 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. 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

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. 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. 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

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.

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] 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 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. 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. 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

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] [74] [75] intended contravention of the law. If an authorisation under ss 16 and 17 is in force in relation to a vessel, a maritime officer may exercise maritime powers [76] 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] 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". 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] [79] [80] 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. 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). Part 3 of the MP Act (ss 50-78) identifies "maritime powers". They include the power [81] [82] Section 72 of the MP Act applies [83] [84] [85]

"(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.

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

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

Applicable general principles

Compulsive powers

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

Exorbitant powers

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] [89] [90] 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] 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. 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. 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] The exorbitant nature of the powers is further reason to construe [93]

Statutory misfire?

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. 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] 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.) 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

In opening the case for the Commonwealth parties, the Solicitor-General of the Commonwealth submitted [95] [96] 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]

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]

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. 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. 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?

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] The better view may well be that the power given by s 72(4) can be re-exercised "as occasion requires". But that invites close attention to what are the limits on the power itself, and what kind of "occasion" may permit and require its re-exercise. That attention is invited because the possibility of re-exercise of the power "from time to time" provokes consideration of how often the power can be re-exercised and what effect any, let alone repeated, re-exercise of the power would have on the liberty of the person concerned. It was not suggested that the powers given by s 72(4) may be exercised in a manner which would lead to the indefinite detention of a person who was on board a vessel detained in Australia's contiguous zone. The Commonwealth parties rightly accepted that the powers must be exercised within reasonable times. But that does not entail that the person must be taken to the closest available destination. It is important to recognise that, because the power is to take to a place in Australia or to a place outside Australia, the relevant decision-maker must have a reasonable time within which to decide to what place the person is to be taken and then a further reasonable time to take the person to that place. But there are limits to the destination to which a person may be taken. In Plaintiff S4/2014 v Minister for Immigration and Border Protection [100]

"The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time. Otherwise, the lawfulness of the detention could not be determined and enforced[101] by the courts, and, ultimately, by this Court."

This principle reinforces the construction of s 72(4) that has already been described. For the purposes of s 72(4) of the MP Act, a place may be chosen as the place to which a person is to be taken only if, at the time the destination is chosen, the person has the right or permission to enter that place. This case shows why that conclusion follows from the principle described in Plaintiff S4/2014.

The Commonwealth ship took the plaintiff and others from the Indian vessel towards India and "arrived near India" about ten days after the National Security Committee decided that this should be their destination. But, the plaintiff and others not having permission to land in India, they were not discharged in that country, and a further twelve days elapsed before the decision was made to take them to the Territory of the Cocos (Keeling) Islands. If, as the Commonwealth parties submitted, the power to take to a place outside Australia can be re-exercised from time to time, as occasion requires, once negotiations with India were thought not sufficiently likely to allow for landing the plaintiff and others soon enough, a different destination outside Australia could then have been chosen. And a further period would have elapsed while negotiations were had to allow the plaintiff and others to land in that other place. Presumably, if those negotiations did not bear fruit soon enough, the process could be repeated. But what is soon enough? How many attempts can be made? How long can detention be prolonged? This is not to confine the power given by s 72(4) by reference to "extreme examples" or "distorting possibilities" [102] [103] Some emphasis was given in this case to the fact that the plaintiff and others on the Indian vessel had set off from India. And from time to time in argument, it was suggested that the place of departure was "an obvious" (even "the most obvious") place to which they should be taken. But why should that be so? India is not the country of nationality [104] Further, if the power to take to a place outside Australia permits a maritime officer to take a person to a place where it is hoped that the person might be allowed to land, how would a court (and ultimately this Court) determine whether the person has been detained longer than reasonably necessary to be taken from the contiguous zone to his or her eventual destination? How is a court (and ultimately this Court) to judge whether that hope has been explored with sufficient diligence to make the consequential detention not unduly, and thus not unlawfully, prolonged? If neither a right to land nor an existing permission to do so is required, and hope of landing will do, what level of hope must exist? The Special Case refers to the need, in this case, for "diplomatic negotiations between Australia and India (including the time required to arrange and undertake meetings at a Ministerial level)". Is a court to inquire into the course taken in diplomatic discussions between Australia and the government of a place about whether, or on what terms, that government would grant permission to land to persons whom Australia wishes to leave in that place but who have no right or permission to enter? And if a court cannot or should not do that, how would the lawful duration of the detention be judged? By contrast, if a place may be chosen as the place to which a person is to be taken only if, at the time the destination is chosen, the person has the right or permission to enter that place, the reasonable length of detention is readily capable of being judged by reference to wholly objective considerations like the time necessary to identify a place where the person has the right or permission to enter, travel time to that place, any need for the vessel to be resupplied, the state of weather conditions on the journey and the like [105] If, for any reason or no reason, the government of the place to which the person is being taken refuses to allow that person to exercise a right of entry to the country or revokes the permission which existed, there would be an "occasion" on which the power to take to a place could be re-exercised. Subject to that limited qualification, the power to detain and take to a place outside Australia can be exercised to take only to a place which, at the time the destination is chosen, the person has the right or permission to enter.

Section 74 and a "safe" place

Section 74 provides that "[a] maritime officer must not place ... 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". When a maritime officer, acting under s 72(4), takes a person to a place outside Australia, must the place to which the person is taken be a place at which the officer is satisfied, on reasonable grounds, it is safe for the person to be? The Commonwealth parties submitted that s 74 deals only with what happens between detention (presumably detention of a vessel) and the discharge from detention. Hence, so the argument ran, a maritime officer may lawfully remove a person from an aircraft or vessel in the place of destination without any regard for what lies at or after the foot of the aircraft's steps or the vessel's gangplank. Such a reading of s 74 is inconsistent with its text, read in the context provided by the MP Act as a whole and s 72 in particular. Section 72(4) and s 74 are both directed to a maritime officer. The former provision gives such an officer power to detain and take a person to "a place". The latter provision forbids the officer placing the person "in a place" unless satisfied that it is safe for the person to be in that place. There is no reason to read the words "a place" in s 74 as if they do not include what s 72(4) refers to as "a place". And to read the provisions of s 74 as not speaking to the officer's conduct in removing a person from an aircraft or vessel would depend upon treating s 74 as ceasing operation before the maritime officer concerned has completed the task required by s 72(4). There is no warrant for doing that. It is, therefore, not necessary to consider [106] Section 74 may be engaged in a very wide variety of circumstances. In this case, the circumstances in which the Indian vessel was intercepted and detained suggested that it was very probable that those on board the vessel would claim to be refugees. The plaintiff was asked questions about his personal and biographical details and it was known that he was a Sri Lankan national. He was not asked why he had left Sri Lanka or where he wanted to go. The reference in s 74 to a person being "safe" in a place must be read as meaning safe from risk of physical harm. A decision-maker who considers whether he or she is satisfied, on reasonable grounds, that it is safe for a person to be in a place must ask and answer a different question from that inferentially posed by the Refugees Convention [107] If, then, it had been intended to take the plaintiff to Sri Lanka, a maritime officer could not have been satisfied, on reasonable grounds, that it was safe to put him in that place without asking the plaintiff some further questions including, at least, whether he feared for his personal safety in that place. And if, as might be expected, the plaintiff did say that he feared going back to Sri Lanka, and the maritime officer could not decide that the fear was ill-founded, the maritime officer could not be satisfied, on reasonable grounds, that it would be safe to place him there. This conclusion is significant for two reasons. First, it is a conclusion that denies the argument of the Commonwealth parties that a maritime officer could lawfully have decided that the plaintiff should be taken to Sri Lanka, whether or not he claimed to be a refugee. Section 74 precluded taking him to Sri Lanka without asking at least whether he feared for his personal safety in that place. Second, the conclusion obviates the need to consider whether the obligations which Australia has assumed under the Refugees Convention and other international instruments referred to in the Special Case [108] [109] [110] The more particular questions asked by the parties in the Special Case must then be considered in the light of these conclusions about the proper construction of the MP Act. First, the s 72(4) power to detain and take to a place outside Australia permits detention and taking only to a place which the person has, at the time the destination is chosen, a right or permission to enter. Second, s 74 requires that a maritime officer may take a person to a place outside Australia only if satisfied, on reasonable grounds, that the person will be safe in that place. These conclusions about the proper construction of ss 72 and 74 provide the necessary basis for considering the questions stated in the Special Case. Before considering those questions, however, it is convenient to deal with a point which the plaintiff put at the forefront of his written submissions. The plaintiff submitted that "there was an obligation to give the plaintiff an opportunity to be heard prior to any exercise of statutory or (if it exists) non-statutory power to take the plaintiff to a place outside Australia and that obligation was breached". Was the exercise of power under s 72 subject to an obligation to give the plaintiff an opportunity to be heard?

Procedural fairness and s 72

As already mentioned, s 72 gives a maritime officer three powers in respect of a person who is on a detained vessel when it is detained, or is reasonably suspected of having been on board a detained vessel when it was detained: to return the person to the vessel; to require the person to remain on the vessel; and to detain and take the person to a place in Australia or a place outside Australia. A maritime officer need not give a person to whom s 72 applies any opportunity to be heard about which of those three powers will be exercised or how the power will be exercised. Each of the powers given by s 72 is a compulsive power and each is available [111] Section 74 of the MP Act deals expressly with the personal safety of a person who is or was on a detained vessel. But apart from considerations of personal safety, the person from the detained vessel has no relevant right, interest or expectation [112] where the person from the detained vessel should be taken or placed. Because s 74 deals expressly with personal safety, s 72's conferral of power on a maritime officer to decide where a person who is or was on a detained vessel should be taken or placed (whether on the detained vessel or elsewhere) should not be read as obliging the maritime officer to give the person a hearing about which of the powers is to be exercised or how it will be exercised. More particularly, in deciding whether to detain and take to a place in Australia or to a place outside Australia a maritime officer is not obliged to ask the person which of those courses should be taken. These conclusions do not detract from the force of s 74, and are not to be understood as doing so. A maritime officer may not place a person in a place unless satisfied, on reasonable grounds, that it is safe for the person to be in that place. There will be many circumstances in which a maritime officer will not have reasonable grounds for concluding that it is safe for a person to be in a place if the officer has not asked the person whether he or she has reason to fear for his or her safety there. But, subject to the operation of s 74, the plaintiff's general submission that the exercise of power under s 72 was subject to an obligation to give the plaintiff an opportunity to be heard should not be accepted.

The questions in the Special Case

Leaving aside questions about the costs of the Special Case and about orders either disposing of the proceeding or providing for its further conduct, the parties asked six questions. Questions 1, 2 and 4 were directed to the power under s 72(4) of the MP Act. Questions 3 and 5 were directed to the "non-statutory executive power of the Commonwealth". Question 6 asked generally whether the detention of the plaintiff was unlawful for any and what part of the time he was on board the Commonwealth ship and, if so, whether he is entitled to claim damages in respect of that detention. It will be convenient to deal with the questions in that order: first the questions about s 72(4), then the questions about non-statutory executive power and finally the question about unlawful detention. One preliminary point must be made. The parties agreed in stating the questions as "the questions of law arising in the proceeding" [113]

The s 72(4) questions

Question 1 asks whether s 72(4) authorised a maritime officer to detain the plaintiff for the purpose of taking him, or causing him to be taken, to India. The question identifies three different considerations as affecting that general question. They are described as:

"(a) whether or not the plaintiff would be entitled by the law applicable in India to the benefit of the non-refoulement obligations[[114]];

(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".

These three considerations may be referred to respectively as "non-refoulement", "chain of command" and "permission to land".

The third of the considerations (permission to land) has been considered. For the reasons that have been given, s 72(4) did not authorise taking the plaintiff to a place where, at the time the destination was chosen, he did not have a right or permission to enter. At no relevant time did the plaintiff have the right or permission to enter India. Further, s 74 prevented a maritime officer "placing" the plaintiff in India unless satisfied, on reasonable grounds, that it was safe for the plaintiff to be in that place. These conclusions require that the question be answered in the plaintiff's favour. But the exact form of answer requires some further examination of the two other considerations to which it refers: non-refoulement and chain of command.

Non-refoulement

The Special Case states no fact suggesting that the plaintiff would not be "safe" in India and there is, therefore, no basis for assuming that he would not be. Nor does the Special Case state any fact suggesting that in India there was at any relevant time a risk of the kind referred to in the Special Case in defining the "non-refoulement obligations": "a real risk of the plaintiff suffering persecution as defined in the Refugees Convention or significant harm of the kind described in Art 7 of the ICCPR and Art 3 of CAT by being refouled, directly or indirectly, to Sri Lanka prior to his protection claims being determined in accordance with law". Again, there is no basis for assuming that there was such a risk. Hence, so much of Question 1 as asks about exercise of the s 72(4) power "whether or not the plaintiff would be entitled by the law applicable in India to the benefit of the non-refoulement obligations" must be understood as asking whether the matter described was a mandatory relevant consideration. It may be accepted that, as the Commonwealth parties pointed out, the consideration described in the question invites attention to Indian domestic law and there is no fact agreed in the Special Case about the content of that law. And it may further be accepted that, as the Commonwealth parties also pointed out, assessing the risk of refoulement requires consideration of state practice as well as the domestic law of that state. But if these observations reveal deficiencies in the facts on which the question is based or in the way in which the question is framed, they are deficiencies for which both sides of the litigation must take equal responsibility. Having regard to these observations, and in the light of the conclusion that s 74 requires that a maritime officer be satisfied that it is safe to place a person in the place to which that person is taken, the answer which is given to Question 1 should reflect the conclusion reached about s 74 but otherwise decline to deal with whether, or to what extent, questions of non-refoulement are mandatory relevant considerations or otherwise bear upon the construction of the powers given by s 72(4).

Chain of command

The plaintiff submitted that the maritime officer who detains and takes a person to a place outside Australia must independently consider where the person is to be taken. That is, the power given by s 72(4) was said to be one which the maritime officer concerned must exercise personally. Section 104(1) of the MP Act provides that each of four classes of person is a maritime officer: a member of the Australian Defence Force, an officer of Customs (within the meaning of the Customs Act 1901 (Cth)), a member or special member of the Australian Federal Police, and any other person appointed as a maritime officer by the Minister. The first three classes of persons are members of disciplined and hierarchical forces. Each member of those forces is subject to the command of superiors and ultimately each force is, and the individual members of the force are, subject to the control of the Executive government. Why, against this background, the disposition of persons taken into Australian custody from a vessel detained on that part of the high seas which is within Australia's contiguous zone should be a matter for the personal decision of a particular maritime officer was not explained. Nor was it explained how the relevant maritime officer was to be identified or how attribution of the power to an individual would fit with the disciplined and hierarchical character of those services whose members are maritime officers. The assumption implicit in the plaintiff's submission was that the decision was to be made by the most senior maritime officer at the scene. But if that is so, why should that officer not be subject to command from higher authority in the service? Why should the head of the relevant service not be subject to direction from relevant Ministers about the exercise of the powers? No satisfactory answer or explanation was, or can be, given in respect of these questions to support the construction of s 72(4) for which the plaintiff contended. The lack of satisfactory answer to these questions is reason enough to reject the construction of s 72(4) proffered on behalf of the plaintiff. But there is an additional affirmative reason for preferring a construction which would permit a maritime officer to take to a place determined at whatever level in the chain of command (up to and including the civilian control exercised by relevant Ministers) is judged appropriate in the particular circumstances of the case. As has been noted, s 74 obliges a maritime officer to consider whether a person who is detained and taken to a place under s 72(4) will be safe in that place. These are issues about which a maritime officer on the scene must be able to obtain advice from others, including from within the command structure of the organisation of which the particular officer is a member. If, as might have been expected to be the case here, a person detained claims to fear persecution in his or her country of nationality, a maritime officer will be better able to reach the degree of satisfaction required by s 74 if the decision about where to take the person is made on the basis of better information than may be available at the scene. That may mean that the decision will be taken at whatever point in the chain of command and civilian control is best able to identify what courses of action are available. For these reasons, the facts that the National Security Committee decided that those on the Indian vessel should be taken to India and that maritime officers acted in accordance with that decision do not render the consequent detention and taking beyond the power given by s 72(4).

Answering Question 1

Having regard to the conclusions that have been reached, a "speaking" answer, rather than bare affirmative or negative answers, should be given to the first of the questions stated for the opinion of the Court. And the answer that is given should be to the whole of the question and should not treat the three sub-paragraphs as posing separate questions. We would answer the question:

"Section 72(4) of the Maritime Powers Act 2013 (Cth) did not authorise a maritime officer to detain and take the plaintiff to India when, at the time that destination was chosen, the plaintiff had neither the right nor permission to enter India. Subject to that limitation, s 72(4) authorised a maritime officer to detain and take the plaintiff, a person reasonably suspected of having been on the Indian vessel when it was detained under that Act, to a place outside Australia determined by the National Security Committee of Cabinet, and to place the plaintiff in that place if the officer was satisfied, on reasonable grounds, that it would be safe for the plaintiff to be in that place.



Otherwise it is not appropriate to answer this question."

Answering Question 2

Question 2 in the Special Case reads:

"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?"

The steps set out in par 20 of the Special Case were detaining the plaintiff (and others) on the Commonwealth ship while it travelled towards India and continuing to detain the plaintiff (and others) on the Commonwealth ship "while waiting for it to become practicable to complete the taking of those persons to India".

Because the plaintiff had no right or permission to enter India, s 72(4) did not authorise a maritime officer to detain and take the plaintiff to India, whether by implementing the steps described in the Special Case or otherwise. Both parts of Question 2 should be answered "No".

Answering Question 4

Question 4 asks whether the power under s 72(4) to take the plaintiff to a place outside Australia, being India, was subject to an obligation to give the plaintiff an opportunity to be heard about the exercise of that power and, if so, whether that obligation was breached. Having regard to the conclusions already reached about the absence of power under that provision to take the plaintiff to India, it is not necessary to answer this question.

Non-statutory executive power

The Commonwealth parties submitted that, even if s 72(4) did not authorise the detaining and taking of the plaintiff to India, the non-statutory executive power of the Commonwealth did. Question 3 in the Special Case reads:

"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?"

As has already been noted, the steps set out in par 20 of the Special Case were detaining the plaintiff (and others) on the Commonwealth ship while it travelled towards India and continuing to detain the plaintiff (and others) on the Commonwealth ship "while waiting for it to become practicable to complete the taking of those persons to India".

Question 5 asks whether any non-statutory executive power of the Commonwealth to take the plaintiff to "a place outside Australia, being India" was subject to an obligation to give the plaintiff an opportunity to be heard about the exercise of that power and, if so, whether that obligation was breached. The Commonwealth parties emphasised that s 5 of the MP Act provides that "[t]his Act does not limit the executive power of the Commonwealth". The plaintiff emphasised that s 3 provides that "[t]his Act binds the Crown in each of its capacities". The essence of the argument advanced by the Commonwealth parties about the so-called "non-statutory executive power" is best captured by Roskill LJ in Laker Airways Ltd v Department of Trade [115] Consideration of whether some non-statutory executive power of the Commonwealth could authorise the detention of the plaintiff on board the Commonwealth ship must begin with a clear identification of the content of the question that is asked. The question is not asking about whether a power exists or what the extent of that power may be. The relevant question is much narrower and more focused. It is whether the exercise of a power (described no more precisely than as a "non-statutory executive power") justified what otherwise would be a false imprisonment and any associated trespass to the person. This being the relevant question, it is not useful to begin by asking what power Australia as a nation, or the Executive government in particular, has to regulate the arrival of aliens within Australian territory. Nor is it useful to appeal, as so much of this aspect of the argument on behalf of the Commonwealth parties did, to notions of "the defence and protection of the nation" [116] [117] must have the power to regulate who enters the nation's territory and must have the power to repel those who seek to do so without authority. But even if it were to be accepted that it is necessary or appropriate (or even, if relevant, convenient) that the government have such a power, observations of that kind would not answer the questions [118] s 61 of the Constitution in the Queen and "exercisable by the Governor-General as the Queen's representative", they remain assertions about a capacity to project force at, or in this case beyond, the geographical boundaries of the nation. Those assertions can then be tested only by resort to notions of "sovereignty" [119] [120] What is presently in issue is whether the so-called "non-statutory executive power" provides an answer to a claim made in an Australian court that officers of the Commonwealth committed a tort against the plaintiff. That is, the Commonwealth parties seek to assert that the plaintiff's claim for damages for wrongful imprisonment is met by saying that his detention was an exercise of a species of executive power. As this Court's decision in Blunden v The Commonwealth [121] s 75(iii) of the Constitution, as a matter in which the Commonwealth and a person being sued on behalf of the Commonwealth are parties. Section 80 of the Judiciary Act 1903 (Cth) is thus engaged and "[s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution ... shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth", govern the Court in its exercise of the federal jurisdiction conferred by s 75(iii). In this case, the events giving rise to the claim occurred on the high seas. Some of the events, including the initial detention of the plaintiff, took place in Australia's contiguous zone but the rest of the events occurred beyond that zone. The tort of which complaint is made is, for that reason, what the choice of law writers have described [122] [123] Blunden:

"where ... the relevant events giving rise to a 'maritime tort' occurred on the high seas, one asks what body of law other than that in force in the forum has any better claim to be regarded by the forum as the body of law dispositive of the action litigated in the forum? [124]

In this case, where the detention was on board an Australian ship, no law other than Australian law has any claim to be dispositive of the action.

Accordingly, the immediately relevant question is whether, under Australian law, the Commonwealth may meet a claim for wrongful imprisonment by saying only that the detention was effected by officers of the Commonwealth in pursuance of instructions given by the Executive government to prevent the persons concerned entering Australian territory without a visa. Does the executive power of the Commonwealth of itself provide legal authority for an officer of the Commonwealth to detain a person and thus commit a trespass? That question must be answered "No". It is enough to repeat what was said in Chu Kheng Lim v Minister for Immigration [125]

"Neither public official nor private person can lawfully detain [an alien who is within this country, whether lawfully or unlawfully] or deal with his or her property except under and in accordance with some positive authority conferred by the law [126] any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision." (emphasis added)

No later decision of this Court casts any doubt on the accuracy of this statement. There is no basis for limiting the force of what is said there, or treating [127] Chu Kheng Lim focused upon the exercise of power within Australia. This case concerns actions taken beyond Australia's borders. But why should some different rule apply there, to provide an answer to a claim made in an Australian court which must be determined according to Australian law? To adopt and adapt what was said in Chu Kheng Lim, why should an Australian court hold that an officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of an alien without judicial mandate can do so outside the territorial boundaries of Australia without any statutory authority? Reference to the so-called non-statutory executive power of the Commonwealth provides no answer to that question. Reference to the royal prerogative provides [128] [129] Both parts of Question 3 in the Special Case should be answered "No". Those answers make it unnecessary to answer Question 5.

Unlawful detention

For the reasons which have been given, taking the plaintiff to India was not authorised by s 72(4) or by any non-statutory executive power of the Commonwealth. It follows that the plaintiff's detention on the Commonwealth ship for so long as he was being taken to India and while the ship was "near India" "waiting for it to become practicable to complete the taking" of the plaintiff and others to India was not authorised. And, depending upon what further facts may be revealed at trial about journey times and related issues, it may be that part of the time taken to travel from "near India" to the Territory of the Cocos (Keeling) Islands was longer than would have been reasonably necessary to take the plaintiff from the point at which the Indian vessel was detained to the place in Australia at which he was ultimately discharged from the Commonwealth ship. The Commonwealth parties submitted that none of these observations matters. Rather, so they submitted, it is necessary to recognise that, if, following the detention of the Indian vessel, the plaintiff had been taken immediately to a place in Australia, he would at once have been detained under s 189 of the Migration Act and would have been subject to the regional processing provisions of subdiv B of Div 8 of Pt 2 of that Act. The Commonwealth parties submitted that, in these circumstances, the plaintiff should be held to have no claim to anything more than nominal damages. The submission made by the Commonwealth parties takes as its premise that the detention in fact effected by officers of the Commonwealth was not lawful. The submission is that the plaintiff can have no remedy for that unlawful conduct, other than nominal damages, because, no matter how long the unlawful detention persisted and no matter what were the conditions of the detention which was in fact effected, the plaintiff could and would have been subject, in another place and under different conditions, to a lawful deprivation of his liberty. The differences are probably reason enough to reject the submission. But there is a more fundamental reason to do so. The submission of the Commonwealth parties implicitly assumed that damage is the gist of the tort of false imprisonment. It is not. Like all trespassory torts, the action for false imprisonment is for vindication of basic legal values: in this case the value long assigned by the common law to liberty from restraint, especially restraint at the behest of government. False imprisonment is, and long has been [130] [131] [132] One other strand of argument advanced on behalf of the Commonwealth parties should be identified and considered briefly. They submitted that once aboard the Commonwealth ship, the plaintiff and others who had been on the Indian vessel were subject to the control of the commander of the Commonwealth ship. Hence, the argument continued, it was open to the commander to make the particular arrangements that were made for accommodating the plaintiff and others on board the ship. So much may be accepted for the purposes of argument. But the central complaint which the plaintiff makes is about his being detained on the Commonwealth ship, not about the conditions in which he was detained. The conditions in which he was detained may or may not be relevant to damages. It is neither necessary nor desirable to express any view about whether that is so. For immediate purposes it is enough to observe that the lawfulness of the plaintiff's detention directs attention to whether coming under the control of the commander of the Commonwealth ship for the period the plaintiff was on board that ship was lawful. Those are questions determined by the proper construction and application of the MP Act and, in particular, s 72. Whether this is a case in which only nominal damages should be allowed should not be decided on the facts recorded in the Special Case. Plainly, such a verdict is open in a case where a form of lawful detention was available and would have been effected. But it would not be right to foreclose the examination that can take place only at a trial of whether the differences between the form of detention (as to both place and conditions of detention) actually effected and the form of detention which could and would lawfully have been effected may warrant allowing more than nominal damages. Question 6 should be answered accordingly.

Other issues

Several other issues were touched on in the course of the argument of this matter. It is not necessary to consider either the plaintiff's argument that the decision to take the plaintiff and others to India was made for an impermissible or improper purpose of deterring others or the riposte of the Commonwealth parties that this claim falls outside the scope of the Special Case. The conclusion reached about the places outside Australia to which a person may be taken, coupled with the operation of s 74, renders further consideration of these questions unnecessary in this case. In addition, as has already been noted, it is not necessary in this case to decide whether or to what extent the ambit of the power given by s 72(4) is affected by Australia's accession to the Refugees Convention, the ICCPR or the CAT. Finally, there remain the last two questions in the Special Case, about costs and orders for the further conduct of the matter. Although the answers which should be given to the questions stated in the Special Case are not those propounded by the plaintiff, and although several of the arguments advanced on the plaintiff's behalf either have not been accepted or need not be considered, the plaintiff has had sufficient success to warrant his having his costs. The defendants should pay the costs of the Special Case. The matter should be remitted to the Federal Circuit Court of Australia for such further interlocutory steps as that Court considers necessary and thereafter for trial.

Conclusion and orders

For these reasons, the questions asked in the Special Case should be answered as follows: 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:

Section 72(4) of the Maritime Powers Act 2013 (Cth) did not authorise a maritime officer to detain and take the plaintiff to India when, at the time that destination was cho