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 and with respect to persons on those vessels.
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"). The National Security Committee of Cabinet decided that they should be taken to India, which was the place from which the Indian vessel had sailed. The Commonwealth ship took the plaintiff and the others who had been on board the Indian vessel and "arrived near India" about ten days later.
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 the person in command of a Commonwealth ship from which the exercise of powers is to be directed or coordinated. Section 17 provides that an authorising officer may authorise the exercise of maritime powers in relation to a vessel if the officer suspects, on reasonable grounds, that the vessel is involved in a contravention of Australian law. A "contravention" of Australian law includes an offence against the law. Involvement in a contravention extends to an 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 in relation to that vessel in accordance with ss 31 and 32 and within the geographical and other limits specified in Div 5 of Pt 2 of the MP Act (ss 40‑49).
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 the Migration Act 1958 (Cth) ("the Migration Act")). Section 32(1)(a) provides that the maritime officer may also exercise maritime powers "to investigate or prevent any contravention of an Australian law that the officer suspects, on reasonable grounds, the vessel ... to be involved in".
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") in two relevant ways. First, there was a geographical limitation: the powers could be exercised only in the contiguous zone. Second, there was a purposive limitation expressed as disjunctive alternatives: to "investigate a contravention of a customs, fiscal, immigration or sanitary law prescribed by the regulations that occurred in Australia" or to "prevent a contravention of such a law occurring in Australia".
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 to detain a vessel and powers with respect to "placing and moving persons" on a detained vessel. The central focus of debate in this case is upon the latter group of maritime powers: the powers with respect to placing and moving persons on a detained vessel.
Section 72 of the MP Act applies to a person who is on a detained vessel when it is detained, or is reasonably suspected of having been on a detained vessel when it was detained. Sub‑sections (2)‑(4) of s 72 give a maritime officer three powers in respect of such a person: power to return the person to the detained vessel; power to require the person to remain on the detained vessel until it is either taken to a port or other place, or permitted to depart from the port or other place; and power to detain and take the person, or cause the person to be taken:
"(a) to a place in the migration zone; or
(b) to a place outside the migration zone, including a place outside Australia."
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. The statutory powers at issue in this case are to be construed in accordance with that principle.
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 or, in Australian domestic law, "part of Australia". In international law, the contiguous zone is an area of the high seas in which Australia, as the coastal state, exercises no sovereignty or jurisdiction, only certain rights or powers of enforcement.
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.
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".
The exorbitant nature of the powers is further reason to construe the provisions strictly.
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 to detain the person by discharging the person from custody. And a maritime officer cannot discharge the person from custody in a jurisdiction other than Australia without the permission (or at least acquiescence) of that jurisdiction.
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 that this Court should look at the questions which arise in the matter through a "prism" or "framework" in which "the Parliament in the expressed terms it has used and the expressed limitations on power of which there are some, has quite deliberately drawn a careful balance between the needs of law enforcement in a unique maritime environment, the rights and interests of persons and Australia's international obligations". And as developed, the submissions for the Commonwealth parties appeared, at least at times, to approach the issues of construction of the MP Act on the footing that regard should be had only to the text of the MP Act and that its text should be given the fullest and most ample construction possible.
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, "[e]nforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land‑based operations and constrained by the practicalities involved in sea‑based work". But no statute can be construed as if it stands isolated from the wider legal context within which it must operate. The MP Act cannot be construed by searching only for the largest meaning its words could bear. The compulsive and exorbitant nature of the powers precludes that approach.
A place outside Australia
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), show that the power is one which may be exercised without the consent of the person concerned.
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"?
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, this Court said that:
"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 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". Nor is it to assume that the power would be exercised "improperly or venally". The facts and circumstances of this case are enough to suggest the real possibility of prolongation of detention while political and diplomatic discussions take place in the course of searching for a willing country of reception. And if the power can be re‑exercised as occasion requires, the length of detention will likely be determined by matters peculiar to the particular destination or destinations that is or are chosen. They are matters dependent upon the agreement or acquiescence of another state. They are, therefore, matters outside the control of the Commonwealth or its officers. Hence, the length of detention would depend upon the particular (unconstrained) decision to choose as the destination to which a person subject to s 72 of the MP Act should be taken a place (or succession of places) which that person has no right or permission to enter. That is reason enough to reject a construction of s 72(4) which would permit taking a person to a place which that person has no right or permission to enter.
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 of either the plaintiff or the others on the Indian vessel. Departure from India said nothing about whether the plaintiff, or the others, were living lawfully in that country and there is nothing in the Special Case which says anything about the status in that country of the plaintiff or anyone else on the Indian vessel. There is, then, no basis for treating India as an obvious place to which the plaintiff could or should be returned.
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.
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 whether an officer of the Commonwealth could lawfully be authorised to exercise a statutory power of the kind in issue in this case without reasonable care for the safety of the person concerned.
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. But there is a very considerable factual overlap between the two inquiries. Many who fear persecution for a Convention reason fear for their personal safety in their country of nationality.
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 are relevant to construing the ambit of the power given by s 72(4). By acceding to the Refugees Convention, Australia has undertaken to other parties to the Convention obligations with respect to certain persons who are unable to seek the diplomatic or consular protection of their country of nationality. It is unnecessary to decide whether these obligations are relevant to the construction of the MP Act. It is unnecessary to decide whether the MP Act should be construed as giving an officer of the Commonwealth power to act outside Australia, on the high seas, in a way which would breach the obligations Australia has undertaken under these international instruments.
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 only because the person concerned is, or is reasonably suspected of having been, on a detained vessel. As has already been seen, a foreign vessel cannot be detained outside Australian territorial waters except in the contiguous zone and only then for the purpose of investigating or preventing actual or intended contravention of Australian law.
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 which may be adversely affected by the decision about which of the three powers given by s 72 is to be used in consequence of the vessel's detention, or about how one or other of those powers is to be used. It may be accepted, for the purposes of argument, that the person's rights, interests or expectations are affected by the vessel being detained and, in consequence, he or she becoming subject to s 72. But that affecting of rights, interests and expectations has happened by the time a maritime officer comes to deciding which of the powers given by s 72 is to be used and how it is to be used. So, for example, detention of the vessel, and consequent prevention of the commission of a suspected contravention of the law, may well have defeated some expectation of the persons on the vessel about seeking to enter Australia. But that expectation has already been defeated when the maritime officer is deciding 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". To submit, as the Commonwealth parties did, that one of the agreed questions is hypothetical, or should not be answered for want of sufficient facts, does not sit easily with the agreement that necessarily underpins the parties proceeding by way of special case. The matters advanced in argument as presenting difficulties in answering the question should have been drawn to attention before the Special Case was referred for argument before a Full Court.
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[];
(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, when his Lordship asked "can the Crown, having failed to enter through the front door ... enter through the back door and in effect achieve the same result by that means of entry"? In this case the Commonwealth parties submitted that if what was done was not authorised by the MP Act, they could enter through what amounts to the back door of the so‑called "non‑statutory executive power" and achieve the same result by that means of entry. It is greatly to be doubted that the MP Act, and s 5 in particular, should be read as permitting so strange a result. Rather, it is probable that s 5 of the MP Act should be read as saying no more than that no negative inference should be drawn about the ambit of executive power from the enactment of the MP Act. And that would be a construction of s 5 which would sit more easily with s 3 providing that the MP Act binds the Crown in each of its capacities. For the reasons that follow, however, it is not necessary to decide this question.
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". Arguments beginning in those ideas depend ultimately on assertion: that the government of the nation 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 about the scope of the power and the organ or organs of government which must exercise it. And no matter whether those assertions are said to be rooted in the royal prerogative or said to inhere in the notion of the executive power of the Commonwealth vested by 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" and "jurisdiction", which all too often are used to mask deeper questions about their meaning and application.
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 shows, it is necessary to begin by asking what law is to be applied in deciding the plaintiff's claim. And in this case, answering that question requires recognition that the jurisdiction being exercised is federal jurisdiction, under 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 as a "maritime tort". As four members of this Court said in 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?"
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:
"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. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, 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 the decision as not dealing with whether, absent statutory authorisation, the Executive has power to detain. No doubt, the passage quoted from 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 no answer. Reference to "the defence and protection of the nation" is irrelevant, especially if it is intended to evoke echoes of the power to declare war and engage in war‑like operations. Reference to an implied executive "nationhood power" to respond to national emergencies is likewise irrelevant. Powers of those kinds are not engaged in this case. To hold that the Executive can act outside Australia's borders in a way that it cannot lawfully act within Australia would stand legal principle on its head.
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, actionable without proof of special damage. Hence, demonstrating that a plaintiff was unaware of the imprisonment, or for some other reason suffered no substantial loss, neither denies the availability of the action nor provides a defence to it. Such matters are relevant, if at all, only to the assessment of damages but do not, of themselves, require the conclusion that only nominal damages may be awarded.
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: