Jeremy Gans, ‘Sri Lankan Case Becomes Less Urgent’ (29 July 2014).

Jeremy Gans, ‘News: Progress in Two Major Upcoming Cases’ (25 July 2014).

Jeremy Gans, ‘News: Court Reportedly Issues Interim Injunction in Sri Lankan Asylum Matter’ (7 July 2014).

The High Court has decided a special case relating to the Government’s attempt to return up to 153 asylum seekers to Sri Lanka. On 7 July 2014 Crennan J issued an injunction to prevent the Australian Navy from returning the asylum seekers to Sri Lankan immigration officials. While details of the incident then remained unclear, the boat had not yet entered Australian waters, and the asylum seekers were interviewed briefly. The central issues in the appeal appeared to be whether the Migration Act 1958 (Cth) has extraterritorial effect, and the scope of executive power to return asylum seekers intercepted outside Australian waters. Counsel for the applicants contends that the decision to return them were made under the Migration Act, and did not afford procedural fairness to the applicants. Secondly, that the Commonwealth’s executive power to detain and return asylum seekers outside Australian waters is limited by customary international law preventing the refoulement of asylum seekers, and that the Maritime Powers Act 2013 (Cth) does not provide express statutory authority to do so. The Commonwealth submitted that as the Migration Act applies only to persons ‘in Australia’ it has no application to people detained outside Australian waters, and secondly that both the Commonwealth’s executive power and the statutory power under the MPA support the government’s actions. The Commonwealth’s Defence to the Amended Statement of Claim is available here (permanent link here: federal-governments-asylum-seeker-defence). When the asylum seekers were moved to Australia and detained under s 189 of the Migration Act 1958 (Cth), the urgency of hearing the matter evaporated, and the central issue became the legality of their detention under the MPA for the period of 1 July to 27 July 2014, whether they ought to have been afforded a hearing on that detention, and, if the detention under the MPA was unlawful, whether they are owed damages for the tort of wrongful imprisonment.

A majority of the Court (French CJ, Crennan J, Gageler J and Keane J, in separate judgments) held that the detention was authorised by the MPA and that no hearing was required (questions 1, 2 and 4), and also held that it was not necessary to rule on whether the Commonwealth’s non-statutory executive power authorised the detention or necessitated any hearing (questions 3 and 5).

Central to the statutory questions was s 72(4) of the MPA which provides that where a maritime officer suspects a vessel has been involved in a contravention of an Australian law or to administer or ensure compliance with a monitoring law, which includes the Migration Act 1958 (Cth) (see ss 9, 17 and 18):

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

Section 74 of the MPA 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’.

In construing the power to detain and transfer, the majority judges took several approaches. In holding that the detention was authorised by the MPA, the majority rejected arguments that the involvement of the National Security Council of cabinet overrode the independent consideration of the maritime officers on the vessel: given the involvement of other countries and civilian control of the military, the NSC was capable of decisively directing the officers (see, eg, French CJ at [37]–[38], Crennan J at [221]–[225]). For French CJ, s 72(4) authorised a ‘speculative’ taking where there is knowledge or a reasonable belief that the country will allow the person to enter its territory (even though it was unclear whether India would permit the vessel to return). The ongoing diplomatic negotiations between Australia and India provided a reasonable basis to commence the taking, and detention was authorised for as long as those negotiations continued (see French CJ at [46]–[50]). Crennan J emphasised that while detention and removal must be to a reasonable place and within a reasonable time, s 72(4) did not require privileging certainty of place and time over practicability ([205], [207]). Gageler J held that besides implied general requirements of good faith and a lack of motivation by considerations that were outside the objects the legislature could have had in view, and other express conditions within the Act, the powers are not subject to any express or implied conditions, or requirements of a particular state of mind (at [360]–[361]), a construction which answered the plaintiff’s arguments on procedural fairness ([366]ff), impermissible dictation by the NSC ([364]) or the Government’s policy being inconsistent with the purposes of the MPA (see [365]). Keane J read s 72(4) as a singular power to ‘detain and take’ rather than a power to detain that must be exercised separately from the decision on where to take the person ([421], [448]ff), and emphasised the flexibility and practicality of decision-making on the ultimate destination (at [453]). Finally, no procedural fairness in the form of a hearing about the exercise of the power was necessary. For French CJ, this was because the power is aimed at preventing contraventions of migration laws, is exercised within a chain of command, lacks any framework for a meaningful hearing opportunity and is to be undertaken within a reasonable time (French CJ at [52], see also Keane J at [497]ff). For Gageler J (Crennan J agreeing), not all statutory powers require hearings and given the need for flexible and quick exercise of powers and the safeguards of personal safety in s 74, no hearing is required in the case of s 72(4) (at [367]–[372]). The majority also rejected arguments that MPA powers were to be exercised or interpreted restrictively in accordance with international law (see, eg, French CJ at [6]ff and Gageler J at [373]ff), and no facts contained in the special case demonstrated that the plaintiff would be subject to refoulement to Sri Lanka if returned to India.

The minority (Hayne and Bell JJ, and Kiefel J) held that the detention was not authorised by either the statutory or non-statutory powers of the executive. Hayne and Bell JJ held the MPA only authorised the removal of a person that, at the time the destination is chosen, they may be taken to have a right to enter (at [90]ff) and if the officer was satisfied on reasonable grounds that the person would be safe there (see [126]). Because the plaintiff had no right or permission to enter India, the detention and taking was not authorised under the MPA. Hayne and Bell JJ also held that the detention and taking could not be authorised under the non-statutory executive power of the Commonwealth (see [137]–[151]), and consequently it was unnecessary to answer the questions relating to procedural fairness. Kiefel J agreed with the majority that question 1(a) that the relevance of non-refoulement obligations could not be answered on the facts of the special case ([294]ff), and on question 4, finding that no obligation of procedural fairness had been breached ([305]ff), but held that s 72(4) required certainty about the choice of place to which the plaintiff would be removed ([318]), and that the removal could not be supported by a non-statutory executive power ([258]ff).