High Court finds high seas detention of 157 asylum seekers did not breach Australian domestic law

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

By a narrow majority (4:3) the High Court found that the Australian Government’s detention of 157 asylum seekers for nearly a month on board a customs vessel was legal under Australian domestic law.

Facts

The plaintiff was one of 157 Tamil asylum seekers, including 50 children, on board an Indian flagged vessel intercepted on 29 June 2014 by an Australian border protection vessel in the Indian Ocean within Australia’s contiguous zone. The asylum seekers were subsequently transferred to the Australian vessel, and on 1 July 2014 the National Security Committee of Cabinet decided that the asylum seekers should be taken to India. At this time, there was no agreement with India under which the asylum seekers would be permitted to disembark or enter India.

The Australian customs vessel then travelled to India, arriving off the Indian coast on 10 July 2014. It stayed near India for 12 days before the Minister for Immigration and Border Protection decided that the asylum seekers should be taken to the Cocos (Keeling) Islands before being taken into immigration detention. In total, the asylum seekers were detained on the Australian customs vessel for over three weeks.

The plaintiff brought proceedings in the High Court alleging that his high seas detention was unlawful. Shine Lawyers, with assistance from the Human Rights Law Centre, ran the case with a team of barristers led by Ron Merkel QC.

Decision

The key questions at the heart of the case focused on the scope of the Government’s power to detain people at sea and send them elsewhere.

The majority of the Full Court of the High Court held that the detention of the plaintiff was lawful under section 72(4) of the Maritime Powers Act 2013 (Cth). Section 72(4) states that a maritime office may detain a person on a detained vessel and take the person, or cause the person to be taken, to a place outside Australia.

The narrow majority (4:3) was comprised of French CJ, Crennan J, Gageler J and Keane J, in separate judgments.

The majority also held that:

• The power under s 72(4) was not subject to an obligation to afford the plaintiff procedural fairness; and
• The detention was lawful even though the maritime officer detained the plaintiff in implementation of a decision by the Australian Government, and without independent consideration of whether the detention should have taken place; and
• The detention was lawful even though at no point did an arrangement exist between Australia and India concerning the reception of the asylum seekers in India.

The minority, comprising Hayne and Bell JJ jointly, and Kiefel J separately, held that the detention was not authorized by either the statutory or non-statutory powers of the executive.

Commentary

Neither the majority nor the minority judgments considered Australia’s obligations under international refugee law in great detail. Instead, the case turned on matters of statutory interpretation, and as such, this case should be understood within the context of Australian national law. In that respect, the decision highlighted the widening gap between Australia’s international human rights obligations and its domestic laws and practices. Keane J observed that:

Australian courts are bound to apply Australian statute law ‘even if that law should violate a rule of international law’. International law does not form part of Australian law until it has been enacted in legislation. In construing an Australian statute, our courts will read ‘general words … subject to the established rules of 2 international law’ unless a contrary intention appears from the statute. In this case, there is no occasion to invoke this principle of statutory construction. The terms of the Act are specific. They leave no doubt as to its operation [para 462].

Accordingly, even though incommunicado detention on the high seas is a clear breach of Australia’s international human rights obligations, s 72(4) was construed in a way that allowed the Government to breach those obligations.

Regarding Australia’s non-refoulement obligations, both majority and minority judgments noted that the relevant question was whether or not the plaintiff faced a risk of refoulement from India to Sri Lanka, and that there was insufficient evidence before the Court to answer that question.

The majority did however suggest that it would be unlawful for the Government to detain asylum seekers for the purpose of taking them to an unsafe place. While the court did not, on the evidence before it, determine whether or not India was an unsafe place, the majority’s recognition of this limit on the Government’s powers at sea may have significant implications on the Government’s future maritime operations, including the use of orange lifeboats and returning Tamil asylum seekers directly to Sri Lanka.

Despite the ultimate outcome, the case did succeed in bringing vital legal scrutiny and transparency to the Government’s actions at sea. The case also helped to ensure that the 157 asylum seekers will have their refugee claims processed, instead of being sent back with no questions asked.

The full text of the decision can be found here.

Andre Dao is the editor-at-large of Right Now, a human rights media organisation.

Note: The Human Rights Law Centre acted in this case. You can read a detailed account here.