By Stephen Tully -
Snapshot
- In the highly controversial case of CPCF v Minister for Immigration and Border Protection [2015] HCA 1, the High Court found that section 72(4) of the Maritime Powers Act 2013 (Cth) authorises a maritime officer to detain a person for the purpose of taking them to a place outside Australia.
- It did not matter that an intergovernmental agreement with India was lacking or that a maritime officer was implementing an executive decision.
- Although this power was not subject to a procedural fairness obligation, its exercise was subject to textual and practical limitations, including that the place was safe (s 74).
The recent case of CPCF v Minister for Immigration and Border Protection [2015] HCA 1 concerned the validity of the exercise of powers under the Maritime Powers Act 2013 (Cth) (the Act) to detain a person so as to take them to a place outside Australia. For practitioners, the High Court of Australia’s judgment is a smorgasbord addressing unlawful detention, executive power, procedural fairness, the roles and responsibilities of maritime officers within a civilian chain of command, and the extent to which Australia’s international non-refoulement and maritime obligations affect statutory construction. This note will describe the factual and legal background, explain the significant differences of judicial opinion, list additional points of interest, and identify some key implications.
