By -

Key decisions

  • CPCF v Minister for Immigration and Border Protection [2015] HCA 1
  • Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2
  • Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

Constitutional law

Executive power – detention and re-routing foreign vessel on the high seas carrying asylum seekers to Australia – whether authorised by Maritime Powers Act 2013 (Cth)

In CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015), in June 2014 CPCF (a Sri Lankan Tamil who claimed to be a refugee) was on an Indian flagged vessel in Australia’s contiguous zone (Submerged Land’s Act 1973 (Cth)) near Christmas Island with 156 other persons. Due to a fire in the engine room the vessel was unseaworthy.

A Commonwealth vessel intercepted the Indian vessel. An officer on the Commonwealth vessel suspected it was involved in a contravention of the Migration Act 1958 (Cth) and relying on s 72 of the Maritime Powers Act 2013 (Cth) detained the persons on the Commonwealth vessel and took them towards India.

The Commonwealth vessel remained in the vicinity of India for many days. On it becoming apparent that the Australian government was not able to obtain the agreement of the Indian government for the discharge of the persons to India, they were taken to Cocos Islands and detained under the Migration Act.

CPCF commenced proceedings in the original jurisdiction of the High Court seeking injunctive relief to end the detention under the Marine Powers Act and damages for false imprisonment. Questions were reserved in that case for the opinion of a full court.

The Court answered the questions to the effect that s 72 of the Marine Powers Act authorised the detention.

The Court did not find it necessary to answer aspects of the question that asked whether detention was authorised where persons who feared persecution may be ‘refouled’.

The Court found it unnecessary to answer whether the removal of the persons was authorised in any event by the executive power in s 60 of the Constitution.

The Court concluded that persons subject to the power had no right to be heard before it was exercised. French CJ; Hayne with Bell JJ; Crennan J; Kiefel J; Gageler J; and Keane J.

Questions answered accordingly.

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more