CPCF v Minister for Immigration and Border Protection & Anor

[2014] HCATrans 227

[2014] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 2014

B e t w e e n -

CPCF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY,14 OCTOBER 2014, AT 10.15 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR C.L. LENEHAN, MR J. WILLIAMS, MR D.P. HUME and MS R. MANSTED, for the plaintiff.  (instructed by Shine Lawyers)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR S.P. DONAGHUE, QC,  MR C.J. HORAN and MR P.D. HERZFELD for the defendants.  (instructed by Australian Government Solicitor)

MR G.R. KENNETT, SC:   If the Court pleases, I appear for the Australian Human Rights Commission, seeking leave to intervene.  (instructed by Australian Human Rights Commission)

FRENCH CJ:   You will have leave limited to the written submissions, Mr Kennett.

MR KENNETT:   If the Court pleases.  In that case, your Honour, may we be excused from further attendance? 

FRENCH CJ:   Yes.  Mr Niall.

MR R.M. NIALL, QC:   If the Court pleases, I appear with MR N.M.WOOD to seek leave to appear as amicus for the Office of the United Nations High Commissioner for Refugees.  (instructed by Allens Lawyers)

FRENCH CJ: Mr Niall, you have leave limited to the written submissions and then only as to paragraphs 1 to 45, not including the submissions as to statutory construction and as to the Constitution. You have leave to depart if you wish.

MR NIALL:   If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Merkel.  Mr Merkel, before you start, it would assist us to know if the parties have agreed a division of time and what the endpoints of those times might be.

MR MERKEL:   I have not recalculated, your Honour, on the basis of the leave just granted, but it was equal time.

FRENCH CJ:   What does that mean?

MR MERKEL:   That such time as the Court permits will be divided equally between ourselves in opening and reply, and my learned friend will have the same amount of time in response.

FRENCH CJ:   Time is not a vacuum to be filled up.  You gave an estimate with your submissions.  Are you still adhering to that estimate?

MR MERKEL:   We hope to, your Honour.

FRENCH CJ:   We take it seriously.

MR MERKEL:   Your Honour, can I revisit this at lunchtime on seeing how we go?  There are a large number of points and we are struggling to try and accommodate them within the time but we understand our commitment, your Honour.

FRENCH CJ:   I think there is a continuing concern, Mr Merkel, that the Court is entitled to know when you are going to finish on the basis of the submissions as they now stand.  It is not just a matter of divvying up the time that is left because the UNHCR and the Australian Human Rights Commission are limited to written submissions.  It is a matter of what is ‑ ‑ ‑

MR MERKEL:   We are planning to finish by the end of the day, your Honour. 

FRENCH CJ:   Yes, all right. 

MR MERKEL:   By 4 o’clock, or thereabouts, your Honour.

FRENCH CJ:   Just a minute.  Mr Solicitor, how much time will you require?

MR GLEESON:   We sought four and a half hours in the written submissions.  I make that four hours in the light of the interveners not addressing orally.

FRENCH CJ:   You will have four hours, Mr Merkel.

MR MERKEL:   If your Honour pleases.  Can we go straight to the special case to set out the statutory context in which the facts arise?  If we can ask your Honours if you could have the Maritime Powers Act at hand.  I just want to give the statutory framework for each of the paragraphs.

FRENCH CJ:   In that context, can I say that we would be more assisted, after you have done that, if you were to proceed to the questions of statutory construction before what seem to be the subsequent questions of opportunity be heard and so forth.

MR MERKEL:   Yes, your Honour. Can I just go through this quickly? Paragraph 7 raises the protection obligations under section 36(2)(a) and 36(2)(aa) – the complementary protection. Can I go straight to paragraph 13 and indicate that there are two processes in the Maritime Powers Act? The first relates to authorisations and an authorised officer’s roles –I will just give your Honours the section. The section is attracted under paragraph (a), sections 16, 17(1), 23, 30, 32(1)(a) and, significantly in the present context, section 41(1)(c)(ii) and if I can take your Honours to that. But an authorised officer is defined in section 16(1).

The only thing I would ask your Honours to note about the definition is that because the authorisation must start and must be acted upon with a time prescribed by the Act, and it lapses if not acted upon, it is expected that an authorised officer may be a maritime officer who is in a position to exercise powers in person which may be a person on the boat. That is to be contrasted with the maritime officer in section 104 which contains no such implication. The critical section that triggered the present case, your Honour, is section 41(1)(c)(ii) which authorises the exercise of powers:

in the contiguous zone of Australia to:

. . . 

(ii)prevent a contravention of such a law occurring –

That led to a – and I should say, your Honour, under regulation 8 of the Maritime Power Regulations, the Migration Act was prescribed for the purposes of section 41.  That results in a notice under section 80 which can be given within 14 days of the authorisation, and then we get through that authorisation the right to exercise maritime powers under Part 3. 

Can I just go through each of the subparagraphs of paragraph 13? The boarding under (b) is under section 52(1) - and sorry, I should take your Honours to the definition of “maritime officer” which is at section 104. Can I just ask your Honours to note that there is nothing in the section that limits the maritime officer’s rank or geographic location and, indeed, under subsection (d) it can be “a person appointed” for the purpose “by the Minister”. So the maritime officers cover a range of persons from the Chief of the Federal Police, chief of staff and so forth, down to a person on the ground.

While I am at the Act can I just draw your Honours’ attention - this comes up later under the dictation argument - to section 121.  The Act specifically provides for ministerial delegation in 121 and 121(2) provides for compliance, an obligation to “comply with any directions”, so if there is to be dictation that is how it is provided for in the statutory scheme. 

Going back to paragraph 13, under subparagraph (b), the boarding of the vessel is under section 52(1), and I would only ask your Honours to note these. This is just the framework. The detention of the vessel operates under section 69(1) and then the detention of the persons on the vessel is under 72(4). Then the power of removal under subparagraph (f) attracts the entitlement and makes the person subject to 72(4) and 72(5)(a) about where they may be taken.

I would ask your Honours again to just note - it will come up later - but sections 37(2), 74 and 95 mandate certain conduct and prohibit certain conduct by the Commonwealth in respect of the persons detained. Then can I go to paragraph 19, which is the taking. That occurs under section 72(4), as does all the acts under paragraph 20.

CRENNAN J:   Just before you go to 19, Mr Merkel, looking at 13(e), which explains about the pump failure, it is my recollection that on the application for an interlocutory injunction it was accepted by you that the persons being rescued, who were not nationals of Australia, had no entitlement to enter Australia.  That is still your position?

MR MERKEL: It is, your Honour. We do not say there is any entitlement to enter Australia. It is one of the matters that the Commonwealth is empowered to do under section 72(4), but we do not contend there is a right to enter Australia.

CRENNAN J:   Yes, thank you.

MR MERKEL:   But that paragraph does have a significance - under subparagraph (a) the maritime powers were attracted and exercised by the involvement of the vessel in a contravention, not because the persons detained were proposing to contravene but, most significantly, the fact that the vessel was no longer able to be seaworthy meant that any potential contravention that was being prevented ceased to be capable of being carried into effect as from 29 June. So a contravention was the basis for the exercise of powers, but from that date on there was no risk of any contravention because the persons were taken into the custody of the Commonwealth and moved to the Commonwealth vessel and therefore fell entirely within section 72(4) as to where they may be taken.

HAYNE J:   Where in the agreed facts do I find that fact which you have just asserted?

MR MERKEL: Your Honour, it is an inference that we say arises from subparagraph (e) because the vessel was seized on the basis it was suspected to be involved in a contravention of the Act. Can I just ask your Honours to note that would appear to refer to section 229(1) of the Migration Act about an operator of a vessel shall not bring it in to Australia with persons who do not have a visa or a right to enter because their vessel was no longer capable of travelling and they were moved to the Commonwealth boat.  That contravention or that threatened contravention came to an end, we say, on that inference which we say can be drawn from subparagraph (e) when they were removed to the Commonwealth boat and, in any event, from that point of time being in Commonwealth detention, there was no longer a risk of entry to Australia.  So there was no longer an offence to prevent.  It does not have far‑reaching consequences save that when one ‑ ‑ ‑

HAYNE J:   It does not have any consequence, does it, Mr Merkel?

MR MERKEL:   We would, with respect, say it has a consequence that one comes to 72(4) without a purpose of preventing a contravention.  We do not say that disentitles the exercise of power but we say you come to section 74 about where the person may be taken with a ‑ ‑ ‑

HAYNE J:   May I put the point again?  It does not have any relevant legal consequence at all, does it, Mr Merkel?

MR MERKEL:   May it put it this way, your Honour?  We say it has a consequence that it removes from the arena of 72(4) a purpose of preventing a contravention in deciding where to take the person.  That is as far as we say it goes. 

CRENNAN J:   Inasmuch as this case is one built on the notion of false imprisonment, is a rescued person who is “content”, if I can choose as a neutral a word as possible, to move from a leaking boat to a safe vessel, is volenti an issue in relation to that?

MR MERKEL:   No, your Honour, we do not quarrel that the persons taken on the boat fell under section 72(4) and powers were able to be exercised in respect of them under 72(4).

CRENNAN J:   Yes, thank you.

MR MERKEL:    The question is what are the limits of 72(4), which I will go to as soon as I finish this preliminary aspect.

KIEFEL J:   But the status of these persons once the Indian – what has been described in this special case as the “Indian vessel” had become unseaworthy is as rescued people, is it not?  That is not to say that detention cannot arise at a later point but at this point they are persons rescued.

MR MERKEL:   Yes, your Honour, we say that is how it works and that ‑ ‑ ‑

KIEFEL J:   So that, as Justice Hayne was saying to you, the notion of overcoming or preventing the commission of offence just goes by the by, does it not?

MR MERKEL:   If that is the way in which the facts are viewed, yes, your Honour.  Our real point is that one comes to 72(4) unfettered by any legislative purpose other than what is an appropriate place to take them in accordance with the powers conferred under the Act.

KIEFEL J:   But the question is simply whether they were detained and taken at a particular point in time and then whether they were detained at a particular point in time and whether they were then taken within a reasonable time to somewhere where the Act permits them to be taken.

MR MERKEL:   Yes, your Honour, they were detained by the Commonwealth and then the question is what is the authorisation that 72(4) gives and what limits are there on that power.

KIEFEL J:   At what point do you say the detention arises?

MR MERKEL:   We say that it goes in two parts.  There is a detention from 29 June to 1 July, detention for the purpose of making a decision where they are to be taken and there is a detention from 1 July to 27 July which is a detention for the purpose of taking.  I will come to the construction case in a moment.

FRENCH CJ:   What is the content of the detention?  What is the liberty that is being constrained?

MR MERKEL:   Your Honour, they are totally under the control and subject to the direction of Commonwealth officers removed - in fact, removed to special quarters and not allowed out of those quarters.

FRENCH CJ:   What are they prevented from doing?

MR MERKEL:   They have no freedom to move around the boat.  They are subject to a requirement.  They comply with orders which restrain their liberty.

FRENCH CJ:   So it is just the freedom to move around the boat?

MR MERKEL:   The freedom to move around the boat, yes, your Honour, until taken to a place, which we say is a deprivation of their liberty and they are totally under the control and subject to the direction and subject to such liberties as may or may not be given to them on the boat, including whether they are entitled as parents to mix with their families or not, to be on board with their families, separated from their families, and so forth.  So they have no right ‑ ‑ ‑

KIEFEL J:   But there is no agreed fact that the plaintiff had family on the vessel.

MR MERKEL:   No, that is correct, your Honour, but I am talking about the practical consequences of any restraint.  It is a total restraint on their liberty on the boat, or to depart from the boat, but that is not a practical outcome in this case because there was nowhere to depart to.

KIEFEL J:   If there were no aspect of asylum seeking involved here and persons were picked up at sea from an unseaworthy vessel and there was perceived to be a need to separate them from the crew because their origins were unknown, their purposes were unknown, and they were confined on board, would that be detention?

MR MERKEL:   Well, it depends on what was meant by “confined”, but if they were prohibited from participating in going above deck in circumstances where there was one person, no inconvenience to anybody, there would be no reason to detain them.  Normally one would expect a rescue of, say, one person to not be subject to a detention.  The detention is discretionary.

KIEFEL J:   But if the reason for limiting their movements on the vessel was to do with operation of the vessel and an interference with the duties of the crew, would that nevertheless be a detention?

MR MERKEL:   Well, again, it is a question of fact and degree, your Honour.  If, for example, it was no more than preventing the proper functioning of the boat, that would not be a detention, but if they were required to be in their quarters and allowed out just for half an hour a day above board and it had nothing to do with operational conditions on the boat, that would be a detention.

KIEFEL J:   Well, how do you say the line is crossed here into detention?

MR MERKEL: Well, because it is an agreed fact they were detained, your Honour. That issue is part of the agreed facts. Paragraph 13(d) says:

a maritime officer . . . detained all the persons on the Indian vessel –

and that is pursuant to the power under section 72(4) and it is agreed fact that they will continue to be detained until removed.

FRENCH CJ:   There is no agreement as to what constituted that detention.

MR MERKEL: Well, it is detention for the – we say it is implicit from the agreed facts that they became subject to the exercise of powers under 72(4), and 72(4) was exercised in relation to them and it is an agreed fact there is a detention. We say it is inescapable that there is an agreed fact they were detained pursuant to section 72(4). The facts constituting that detention do not need to be investigated because the fact is agreed.

KIEFEL J:   But what may need to be considered is the purpose - the legal question, the purpose for the detention.

MR MERKEL:   Yes, that is the issue of construction that arises under 72(4) in the circumstances of this case.  We do not have any problem with that, your Honours.

CRENNAN J:   Well, a master of a ship, if you think of common law and people who have been rescued not being refugees, a master of a ship, as pointed out by Justice Kiefel, would be entitled to maintain the peace and security of the ship, and to the extent that an allegation of false imprisonment was made, for argument’s sake, such detention as may have occurred would be justified by the master of the ship.  So in a sense there is a defence to the tort if you like.

MR MERKEL:   Your Honour, it is not suggested in the pleadings or in any of the facts that the detention was other than for the purpose of taking under 72(4) and continued until 27 July.  This is not a case about whether there was an initial detention for two or three days.  It is an agreed fact that they were detained in the sense 72(4) refers to for the whole of that period.  The real issue in the case ultimately goes to the validity of the taking decision because the detention is purely to serve the taking and if the taking decision is invalid the detention falls with it.

CRENNAN J:   So the taking arguments then lead into the issue of whether or not the detention was lawful or unlawful?

MR MERKEL:   Correct.  It is a necessary gateway of our argument that the taking decision was invalid.

HAYNE J:   Which rather suggests that we should be starting in the Act.

MR MERKEL:   Yes, your Honour. I just wanted to go to the statutory framework, which I have now completed, of the various steps taken. Can I go to the construction argument, as requested by your Honour the Chief Justice? There are two aspects to the argument which we say both lead to limitations on the Commonwealth’s power to take and detain under section 72(4) and (5). Can I just go straight to those sections and indicate how we interpret them?

The two construction arguments are that in 72(4) there are two steps in hearing in the section which arise in the present case.  The first is detention for the purpose of making a decision to take and the second step is detention for the purpose of taking.  We say that on the first construction argument the decision to take must be made on the basis that the taking will be to a place that can lawfully receive the person.  That is the first construction argument, and we will go into detail on that.  The second construction argument is that in the context of the statutory scheme ‑ ‑ ‑

HAYNE J:   Well, is it that a place where they can lawfully be received or a place where they can lawfully be discharged?

MR MERKEL:   We say there is no distinction between the two, but if there is, we accept lawful discharge.  We mean “received” in the sense of “discharge”.  We do not seek to differentiate between the two.  The second construction argument is the limitation on the power by reference to the non‑refoulement obligations, and we will deal with each separately.

Can I go to the construction argument and the basis for the argument that we say ultimately leads to the taking decision being unlawful because – going ahead of myself – ultimately, we say, at all times there was no more than a possibility that the persons may be lawfully discharged in India putting, in effect, in a practical sense the outcome of the period of detention at the discretion of both the Indian and Australian Governments because we are dealing with Sri Lankan nationals who had no right to enter India.  At 1 July when the taking decision was made, it is an agreed fact that there was no agreement or arrangement with India to receive or have the plaintiff and the other persons discharged.

Can I go straight to the central issue?  The Commonwealth submissions say the only restraint on the exercise of power is that it occur within a reasonable time.  But the gravamen of their submissions is at paragraph 56 of the Commonwealth submissions – if I can briefly go there.  Paragraph 56, second sentence, says:

But where a person is detained for the purpose of taking them to another place under s 72(4), detention may continue while that purpose is fulfilled. If it is necessary to change the place to which the person is to be taken, the purpose of detention is unchanged. That is not to say the circumstances in which such a change can occur are at large. It is not necessary to determine the limits in this case, beyond holding that the place may change if, having arrived, it would not be practicable to complete taking the person to that place within a reasonable time.

The difference between us and the Commonwealth is that they give themselves the discretion until they arrive at the port to determine if it is practicable to complete the taking.  We say that is a matter that the Commonwealth is obliged to consider and determine as at the time the decision to take is made.  The difference between the two is that the Commonwealth’s position, we say, offends the constraints on detention identified by this Court in its recent decision in S4 and leaves open what, in M61, refers to the possibility of detention in the discretion of the Commonwealth.  Here, it is the possibility of indefinite detention at the discretion of the Commonwealth depending upon, as at 23 July but up to 27 July, whether it could achieve the lawful discharge of the plaintiff in India, which it was unable to do.  We say that makes ‑ ‑ ‑

HAYNE J:   The Commonwealth submission may be thought to proceed from the same premise as that which you have articulated, namely, that 72(4) is to be read as distinguishing between detention for the purpose of deciding, detention for the purpose of taking.  Is it a possible point of view that 72(4) is to be read as a whole and to be read as providing for something that is a combination of detaining the person and taking the person, which, if it were read in that fashion, might lead on to the question of whether, at the commencement of the exercise of that power given by 72(4), there has been a determination of a place, an identification of a place, at which lawful discharge from the custody of the Commonwealth may occur.

MR MERKEL:   Well, we say that that must be decided upon at the date of the decision to take, otherwise we run into the problems identified in S4.

CRENNAN J:   Might that result in lengthening the detention on the high seas because are there not two factors at work:  one is finding a place which is safe in terms of the comparison with the fact that these people are fleeing their own nation, Sri Lanka - so the two considerations are a place of safety and a place willing to take them given that they are going somewhere other than where they enjoy nationality.  So there are two factors at work, are there not, in terms of making decisions about taking?

MR MERKEL:   Correct, your Honour.

CRENNAN J:   They may be time consuming.

MR MERKEL:   Well, except for this, your Honour.  We are looking at the construction of the statute, not by reference to this case, but by reference to a myriad of situations, and can I just take your Honours through ‑ ‑ ‑

CRENNAN J:   But are not the questions we are asked to answer directed to this case?

MR MERKEL: Yes, your Honour, but the construction of the section cannot depend just on the facts of the case. Can I take your Honour to what I mean? Section 72(4) starts with what would be an unexceptionable proposition, which is that putting aside the Convention logically the persons detained in the present case could be taken to Sri Lanka, their country of nationality where they could be lawfully discharged, or to Australia. Can I emphasise 72(5), talking about the Commonwealth’s concern for time? Section 72(5) enables the person to be brought to Australia to be placed on an aircraft to be taken to the country of nationality. It is the Commonwealth’s policy which is in - irrespective of this statutory scheme people are to be intercepted at sea and removed that causes time problems, not this statutory scheme. If it were not for the question of policy or refoulement issues the normal expectation is they would be flown back to Sri Lanka.

CRENNAN J:   But did not Mr Gleeson indicate very early in the process of hearing for interlocutory injunctive relief that these people would not be taken to their country of nationality?

MR MERKEL:   After giving undertakings not to do so that was the Commonwealth’s position, but, your Honour - without notice - but the point – all I want to make is we are looking at how this section must work in general terms.  If, for example, the Commonwealth had asked the people on board do they have claims and 20 said no, or all said no, then the logical time sequence would be to bring them to Australia and fly them to Sri Lanka where they could be lawfully discharged, but I just want to do it in stages, your Honour.

The proper construction of the section is that putting aside a non‑refoulement situation the choice would be between Sri Lanka and Australia and it would be an open choice and it can be carried out expeditiously, which is the statutory scheme.  The whole purpose of 72(5) is to enable people to be removed quickly, not through the tortuous journey that occurred in this case.

But can I move next to the non‑refoulement?  If a non‑refoulement situation arises, which the Commonwealth never got to in this case because it never asked any questions concerning refoulement, but if a non‑refoulement situation arises the choice of countries, on the Commonwealth’s case, starts still with Sri Lanka because they say there is no obligation not to refoule to Sri Lanka.  It could be to Australia, it could be to Nauru and Papua New Guinea, either directly or pursuant through Australia under regional processing under section 198AD, or it could be India.

Now, looking at the practicalities of the present case, they did not take them to Sri Lanka, perhaps constrained by non‑refoulement as a relevant consideration.  They did not take them to Australia by reason of what we say is an arbitrary policy not to take them to Australia, which is contrary to the statutory scheme which provides for that as an option.  They could have taken them to Nauru and Papua New Guinea directly or indirectly.  They chose to take them to India. 

Now, all of those places are where they could be lawfully discharged because under the Migration Act, I think it is section 42(2A)(c)(i), there is a specific provision enacted at the time of this Act that a person “brought to the migration zone under” 72(4) is exempted from the provision, a non‑citizen must not travel without a visa.  So the only place on 1 July they could not be lawfully discharged to was India.

KIEFEL J:   But we are not concerned here with whether or not the choice made was correct.  There is no issue on the facts on the special case that they were going to be taken to Sri Lanka.  The question arising under section 72(4)(b), is it not, is whether section 72(4)(b) gives power to take them somewhere – to another country other than that of their nationality, absent an agreement with that country to do so.  If there is no such power, it would follow that the only other place would have to be to bring them to Australia.

MR MERKEL:   Or to offshore processing in Nauru, yes.

KIEFEL J:   So it comes down to that, does it not?

MR MERKEL:   Your Honour, the first question of construction, putting aside non‑refoulement, is that at the time of the taking decision, by reason of the principles enunciated by this Court on the limitation of detention powers in S4 apply equally to 72(4) and that at the time of the taking decision there must be a right to lawfully discharge the person, otherwise the taking becomes indefinite, at the discretion, as it was in this case, of the Commonwealth, which is precisely what S4 said detention powers of this kind are not to be interpreted as doing.

KIEFEL J:   The reason that one must construe 72(4)(b) as limiting places outside Australia to which they may be taken to those subject to an agreement is what?

MR MERKEL:   Well, your Honour, it is the contest between us and the Commonwealth.  The Commonwealth read any place ‑ ‑ ‑

KIEFEL J:   No, no, your argument.  Your argument is the reason that we should construe 72(4)(b) in that way is because?

MR MERKEL:   Because of the dictate by this Court in S4 that detention under the Migration Act - but we say this is of the same qualitative kind - is not to be at the unconstrained discretion of the Commonwealth at the time of the decision to detain for the purpose which is, we say, the taking decision.  There must be a limit discernible on the time of detention which must be ascertainable and not in the discretion of the Commonwealth.  In M61, which I will take your Honours to, the idea of detention on the possibility of an outcome is unconstrained detention and we say unlawful.

HAYNE J:   Well, I know everybody wants to become obsessed with the latest word from the High Court, and that is admirable, Mr Merkel, but I think we might usefully start with the words of the Act - just “detain” and “take”.  The words “detain” and “take” in 72(4) might be seen as together conveying the notion of compulsion, that is, compulsorily take.  Do you accept that?

MR MERKEL:   Yes, your Honour.

HAYNE J:   Second, the words “take to a place”, whether it is a place in the migration zone or a place outside Australia, might be read as meaning take for the purposes of discharge from the compulsion which is worked by engagement of 72(4).  Is that right?

MR MERKEL:   It is, but we would add the word “lawfully” discharge.

HAYNE J:   If you wish to go down that path, do, though it seems to me to add a piece of embroidery which is distracting.  “Discharge” means discharge as a matter of the capacity of the Commonwealth to release someone from the custody of the Commonwealth.  Now, the Commonwealth I do not think has power to take third party nationals and foist them on any country it chooses.

MR MERKEL:   Correct.

HAYNE J:   Does it?

MR MERKEL:   Correct. 

HAYNE J:   Well, perhaps the question of discretion and discretionary duration of detention may loom – may even loom large in this matter, but why do we get past the observation that “detain” and “take” means detain and take, that is, take compulsorily to a place where they can be discharged from the custody of the Commonwealth?

MR MERKEL:   I do not quarrel with the need for a capacity to discharge at the place. 

HAYNE J:   That construction might be thought to be supported by the fact that we would not read a statute permitting the assertion of compulsive powers unduly broadly.  It might be a construction that is further supported by the notion that especially is that so if the power is properly seen as an exorbitant power – the reference to exorbitant power being an illusion to Lord Diplock’s statement in The Siskina, but you take the path that you desire to take, Mr Merkel.

MR MERKEL:   Your Honour, when your Honour says “an exorbitant power” we can do no more than go back to S4 and M61 and say that the power becomes exorbitant if detention and compulsion exercised under it is essentially as a matter of practical outcome and law at the discretion of the Commonwealth as it was in this case.  Now, we draw the analogy with this Court’s decision in M61 ‑ ‑ ‑

FRENCH CJ:   Just before you – in S4 and M61, the observations in those cases are reference to provisions of the Migration Act which invents a statutory scheme relating to the assessment for and grant of protection visas and reflecting specifically adherence to the terms of the Refugees Convention. Now, we are looking at something somewhat different here, the non‑refoulement obligation is being, as it were, laid over these provisions as an aid to their construction and the limitation of the powers conferred by them. So we really need to focus on these provisions, I would have thought, apropos which and pursuing the point that Justice Hayne made with you, if one were to read section 72(4) by simply deleting the reference to detention and say “A maritime officer may compulsorily take the person or cause the person to be taken”, would that make any difference?

MR MERKEL:   Your Honour, it would make a difference because in the sense that the person may be detained and that detention clearly under 72(4) be including in Australia, if they arrived in Australia and given liberty pending an outcome to take them to India, that would be a totally different situation.  So if they came here, were given their liberty as if they had a transit visa awaiting the outcome of a decision by India whether to take them or not, the detention would cease.  So the detention is an important aspect of the scheme but also ‑ ‑ ‑

FRENCH CJ:   In Australia, the detention would be under 189(3), would it not, or 189?

MR MERKEL:   They are an unauthorised maritime arrival but ‑ ‑ ‑

FRENCH CJ:   Of the Migration Act.

MR MERKEL:   ‑ ‑ ‑ your Honour, there are powers to dispense with those provisions if one got rid of the “Sri Lankan at sea” situation and found it was a sailor rescued one would find that they may well be brought to Australia and not detained.  But the real point we want to make is that there are a number of discretions but detention for the purpose of expulsion for someone who is excluded from coming has a long history, your Honour, and we say your Honour Justice Hayne is absolutely correct, that it does not authorise you to take people outside areas over which you have no right to take them. 

So if you are in Switzerland you cannot take a person across through Austria or Italy.  There are limits on what you can do when you expel, but we do say that detention is an important part of this statutory scheme which is what really inheres in the idea to compulsorily take.  It means you have to exercise coercive power which underlies - and a restraint on liberty which underlies the statutory scheme under 72(4). 

There is no such thing as a voluntary taking because if it were voluntary then no coercive power would be needed at all.  This is all discretion.  It does not say you must detain and take, so it is a movement at the outset – voluntary or involuntary taking which is at the election of the Commonwealth.  Once that election is made, it is coercive power both to detain and take, both of which are discretionary.  We say that is the restraint on liberty, however it might work in any situation under 72(4) and (5).

But we say that qualitatively that process of coercive exercise of power by executive discretion is not qualitatively different from the analogy that we would draw, and I will not take your Honours to it but I would ask your Honours to note at paragraphs 64 to 66 of M61 the detention pending the possibility of the exercise of lifting of the bar under section 46A or section 195A of the Migration Act was said to be detention on the basis of no more than a possibility equivalent to the unconstrained discretion of the executive and therefore unlawful. 

We say it is not qualitatively distinguishable from what we say occurred in the present case as the facts here show that on the agreed facts the ability to enter India as opposed to Sri Lanka, Australia, Nauru and Papua New Guinea rose no higher than a possibility.  There could have been a discharge at any of those places without any legal problem arising.

MR MERKEL:   I want to emphasise that it comes up under the refoulement limitation which I will come to in a moment that the Commonwealth’s interpretation is they can take them to any place, not limited by the practicality of whether they could be discharged at that place.  So, on the Commonwealth’s view, they could be taken to Switzerland, irrespective of whether that required overland transport or air transfer, irrespective of whether Switzerland had agreed to take Sri Lankan nationals or were legally obliged to do so under some dispensation of visa requirement.  So we say it has far‑reaching consequences which fly directly in the fact of this Court’s approach in M61 and S4. 

What happened here is that the agreed fact is no agreement or arrangement on 1 July.  Endeavours to negotiate up to ministerial level during July and on 23 July it said it was no longer practicable which meant the possibility had reduced to something even less than an expectation and, therefore, the Commonwealth under the umbrella or rubric of reasonable time, which is entirely within the discretion of the Commonwealth because if they are outside India – the ship sailed to India without anything more than a possibility – under that rubric if the Commonwealth thought the Indians might be happy to agree but could not do so for another two weeks, then maybe two weeks for that agreement was another possibility rather than bring them to Australia.  How is the Court to judge reasonableness in that context?

The difference between ourselves and the Commonwealth comes down to a very narrow point.  They say judgment is to be made at the end of the period of time in the light of facts that have transpired.  We say judgment is to be made at the date of the taking decision on what is practicable in the sense of a person being able to be lawfully discharged.  Maybe there is no distinction between lawful discharge and discharge but I do remind your Honours that there is a pleading, not in the agreed facts, that the plaintiff and others at one stage were trained – some of the people were trained to take them in orange boats themselves into India which would not have been a lawful arrival.

This is the ambit of the distinction between ourselves and the Commonwealth.  Any place and any circumstances of the Commonwealth – we say it is a constrained power for the reasons this Court has articulated in S4 and M61.    

GAGELER J:   So when you refer to “lawful discharge”, you are not necessarily referring to the law of the place of discharge.  Nor are you necessarily referring to international law.  You are just referring to the practicability of releasing the person from detention at the place.  Is that right?

MR MERKEL:   I would rather say “achievability”.  In other words, you have a basis for knowing that that person can be discharged at that place rather than merely a hope.  We say this raises no more than a hope - a possibility.  The facts which the Commonwealth was in a position to bring forward – and have brought forward – put at its highest are in the special case.  They are not matters within our knowledge – they are outside and under an umbrella of public interest immunity which your Honour Justice Crennan may recall was raised about the Cabinet decision.  So, in effect, it becomes at this level an unconstrained or unbridled discretion to extend time with reasonableness determined at the end after the event.  We say that is not the correct way to view the statutory scheme. 

KEANE J:   So you say that the question of reasonable time determines the place where the person detained is to be taken.  If you cannot, within a reasonable time, discharge them in India you must – you must bring them to Australia.

MR MERKEL:   Or wherever else they may be lawfully discharged.  Yes.

KEANE J:   Or Nauru, or somewhere else.

MR MERKEL:   Yes.

KEANE J:   But, on your construction, this notion of a reasonable time is, actually driving the determination of the place to which they can be taken.

MR MERKEL:   Yes, your Honour, but can I say that there is one distinction between – we do not adopt the reasonable time in the way the Commonwealth does because we say ‑ ‑ ‑

KEANE J:   Well, the Commonwealth’s view is they look at all the exigencies of taking the detained person to a place where that person can be discharged and in the mix, so far as the Commonwealth is concerned, is one element which is that the Commonwealth does not want to take them to a particular place, namely, Australia.  You say, well, they cannot have their druthers in that respect because they have to take them to some place within a reasonable time.

MR MERKEL:   Your Honour, that is correct, except can I just say this?  A reasonable time is the normal statutory construction, but we say this falls under the rubric of the Lim principle.

KEANE J:   It is a reasonable time within which to discharge the statutory purpose.  In cases like S4, the reasonable time is the time within which it is reasonable to discharge the statutory purpose of deciding whether or not to lift the bar.  Here the reasonable time is the reasonable time required to take them to a place where they can be discharged.

MR MERKEL:   Yes, your Honour, that is correct, but can I just ‑ ‑ ‑

KEANE J:   But the choice of the place where they are to be discharged remains with the Commonwealth, does it not?

MR MERKEL:   It depends on the Commonwealth.

KEANE J:   Well, you say it does not.  You say the Commonwealth is constrained in its choice because it has to do something by way of taking within a reasonable time which does not depend on the Commonwealth’s choice.

MR MERKEL:   Your Honour, can I just say this?  We do not quibble but we say under the Lim principle which distinguishes between lawful and unlawful detention, the starting point which comes up in paragraph [25] of S4 is that the detention cannot validly extend for longer than is reasonably capable of being seen as necessary for the completion of the purposes that are permissible under section 72.

KEANE J:   Quite right.

MR MERKEL:   We say it must be as soon as is reasonably practicable as at 1 July, the date of decision, but we would rather that test as soon as reasonably practicable because it more directly focuses upon and engages with the situation at the time the taking decision is made.  So you have detention for the purpose of taking, then a taking decision.  We say that that is the essential difference between ourselves and the Commonwealth.  They say look at 27 July when the people were brought to Australia.  Was that within a reasonable time?  We say, no, that is the wrong way because that time is fixed by discretionary considerations, some within and some outside the control of the Commonwealth.

CRENNAN J:   Is not the problem, to take your idea of achievability, if the Commonwealth wants to consider taking people to a place which is not where they are nationals, achievability is always going to be time consuming, is it not?  So in a sense what Justice Keane is putting to you, if you are going to make this test that you are positing applicable as at 1 July, you are really saying in effect the only place to which they can be taken in a reasonable time is somewhere like Nauru or Australia or somewhere within the Australian migration zone.  You are cutting off, are you not, the option of achieving a taking to a safe place but a place which will accept non‑nationals?

MR MERKEL:   Your Honour, we say that in terms of time you cannot ignore section 72(5) which gives an option to bring them to Australia pending and it does not require detention.  It is the mandatory coercive aspect of detention and taking that we say requires the achievability of discharge to be able to be ascertained at the date of the decision.  We say there is no problem with that.  It is only the policy here that drove this in the unusual direction that has occurred in this case, but if you took any ‑ ‑ ‑

CRENNAN J:   We are not being asked any questions about policy, are we, Mr Merkel?

MR MERKEL:   No, no – well, it does come up, but I want to leave that until the very end, your Honour, but all I wanted to say is that if the Commonwealth’s position is correct what is reasonable can only be determined after the event, which is quite inconsistent with what S4 said, that the time must be ascertainable and what is reasonably practicable in terms of time must be ascertainable at the date of decision.  We say that follows from the Lim principle as applied in M61, and we say no qualitative difference with section 72(4), and we say that ‑ ‑ ‑

HAYNE J:   What this debate is illustrating is that overlaying the question of construction with the question of reasonability is distracting attention from the first and primary question, I would have thought, which was how are the words “detain” and “take” or “cause the person to be taken to a place” to be understood?  Is the power - and I understood this to be an essential element of your argument - is this power only a power to take to a place where the persons will be received?  Leave aside time taken to effect that.

MR MERKEL:   Yes, whether capable of being received.

HAYNE J:   Well, I do not know what you are adding with that, Mr Merkel.

MR MERKEL:   Yes, but we do say that that is the limitation that we are putting on our first construction argument.  It is inherent from the Lim principle ‑ ‑ ‑

HAYNE J:   Well, if you wish to muddy the waters in that way, you do it.

MR MERKEL:   No, I do not wish to muddy the waters, your Honour.  We say that is the limitation which we put forward.

HAYNE J:   Well, is it founded only on Lim?  Why should the Act be read in that limited fashion is the next and most immediate question.

MR MERKEL:   Your Honour, because of the underlying concern that executive discretions under our constitutional framework to exercise coercive power against individuals, whether citizens or not, must be constrained by a principle that has the purpose identified and the period of coercive power exercised for no longer than is reasonably practicable to achieve that purpose. 

We say that the Lim principle is an essential underlying principle for any executive coercive power in the context that we are concerned with in the present case, and we say to depart from that in a situation where we are talking about Migration Act - it is not as if this is a detention unrelated to the Migration Act, it is a seamless scheme.

Section 72(4) was in almost identical form under section 245F of the Migration Act, so the detention for the purpose of removal there fell under the statutory scheme of detention in the Migration Act, and still does for aircraft.  So when the Maritime Powers Act – and I will come to this on my second construction argument – when it was enacted it merely took out, under the heading of “mirror provisions”, 72(4) to fit into the Maritime Powers Act to be exercised in the contiguous zone.

HAYNE J:   Well, the notion that this Act is concerned only with migration offences may be unduly constrained.  I would have thought it dealt with, for example, those who are sitting off in Australia’s contiguous zone about to dump a load of drugs in the country, nothing whatever to do with questions of migration.

MR MERKEL:   Sorry, your Honour, there are numerous Acts, one of which is the Migration Act, but your Honour mentioned Lord Diplock in Siskina [1979] AC at 254. His Lordship refers to:

the jurisdiction exercisable over foreigners by the High Court is wider than that which is recognised in English law as being possessed by courts of foreign countries.  These are “exorbitant” jurisdictions which run counter to the normal rules of comity among civilised nations.  For this reason it has long been held that where there is any room for doubt as to their meaning the provision of the sub‑rules are to be strictly construed in favour of the foreigner -

We say that as a parallel principle operates in the context that we are concerned with in the present case.  The ultimate test, if I can finish on this basis on the construction point, is that the ultimate destination of Australia took 27 days when on 1 July it was no more than a few hours away we emphasise without the intervention of any unforeseen or new circumstances which makes the point as to how discretionary this detention for the purpose of taking is.

Can I move now onto the second question of construction which is whether the power under section 72(4) is to be exercised in a manner that is consistent with Australia’s non‑refoulement obligations? We say the question for construction arising is whether “a place” in section 72(4)(b) means any place, as the Commonwealth would have it, or whether it refers to a more limited range of places, the limits to be discerned from the text and statutory context. We say it does not extend and therefore is limited in the sense that it does not permit the Commonwealth to take the plaintiff to a place where he would not be entitled by the law applicable in that place to the benefit of the non‑refoulement obligations.

We say that arises from a number of sources:  legislative history, which we will go to first; terms of the Act, second, the context in which the Act operates directly dealing with vessels flagged to foreign sovereigns and in areas regulated by international law to which the Act refers; and, finally, well‑established principles of construction being those identified by this Court in Barcelo and QAAH.

Can I go to the legislative history?  Can I start with the explanatory memorandum which I think your Honours should have, and can I make this point so your Honours know where we are heading in this?  It is the point I have already briefly referred to and adverted to.  After the Tampa situation and the 2001 Tampa amendments came into effect, 245F(9) contained the mirror image provisions of 72(4), both the vessels and aircraft arriving in Australia.

When it was amended, the vessels were taken out of 245F and put into the Maritime Powers Act for enforcement in the contiguous zone.  Otherwise, 245F had its operation.  The explanatory memorandum does not indicate any intended change of effect or meaning by that transfer, other than harmonisation and co‑ordination of the powers.  So, maritime powers were all under one statutory umbrella.

When you look at the statutory scheme, the anomaly brought about is that persons arriving on aircraft under the same statutory provision as persons up to 2013 arriving on boat were entitled to the benefit of the statutory scheme identified by this Court in M61 and M70 of section 36 and non‑refoulement.  By this statutory step of taking maritime arrivals – that is vessels in the contiguous zone – out of the arena under the Migration Act, it is said that they no longer attract non‑refoulement obligations which they attracted under the Migration Act.  There is nothing in the statutory wording, or the scheme or the explanatory memorandum that justifies any such result or intention.  It is anomalous in the extreme and is not an interpretation this Court should favour, particularly in respect of fundamental human rights obligations such as non‑refoulement has been found to be.

CRENNAN J:   Why are we talking about non‑refoulement in circumstances where it has been clear since the very early days of this case that those for whom you appear are not going to be taken to Sri Lanka?

MR MERKEL:   Your Honours, it comes up under indirect – in the present case, it is under indirect refoulement.

CRENNAN J:   Is there anything in the stated special case about indirect refoulement?

MR MERKEL:   Yes, your Honour.  India has not signed the Refugees Convention and has not assumed obligations under the Torture Convention – both of which attract non‑refoulement.  So the question (1)(a) – which is part of the stepping stone I need to take your Honours through – raises whether they are entitled by the law to be protected from indirect refoulement in breach of the contravention.

KIEFEL J:   But India is a signatory to the ICCPR.

MR MERKEL:   It is a signatory to the ICCPR but that is only one claim.  Our claims are under the Refugees Convention, the Torture Convention and the ICCPR.

KIEFEL J:   Does it matter if there is – the ICCPR operates in a similar sense to the Refugees Convention in relation to contracting countries’ obligations.  India would be subject to non‑refoulement obligations, would it not?

MR MERKEL:   Your Honour, the ICCPR does not have the cover of the Torture Convention or the Refugees Convention in one important respect – two important respects.  It covers a different range of conduct.  But, secondly – and most importantly – under CAT and the Refugees Convention as held by this Court determination of a claim for refugee status is a critical aspect of the obligation under Article 33.  There is no law anywhere that we are aware of that says that under the implied refoulement obligation under the ICCPR, there is any process that would give the equivalent to what is required under CAT and the Refugees Convention.

So both as to the grounds on which claims may be made - and essentially it is 36(2)(a) – there is no obligation in India to – no process because there is no assumption of any obligation to ensure it is a safe country as we would say that should be determined in accordance with law by reference to indirect refoulement.

KIEFEL J:   But in any event, on the facts of this case, does this not border on the hypothetical because your case is that the taking of the plaintiff and the other persons to India was not achievable, that your detention and taking started from the time of the decision to take.  It was never achievable, so why are we discussing non‑refoulement?

MR MERKEL:   Because, your Honour, we say the second limitation on the power made India a decision which it was not open under the power conferred to take the plaintiff to.  So it is a limitation on the power by reason of the ‑ ‑ ‑

KIEFEL J:   That means that you are challenging the decision to take.

MR MERKEL:   Yes, this is the ‑ ‑ ‑

KIEFEL J:   But we are concerned with the construction of the Act.

MR MERKEL:   We are concerned with the construction of the Act in the sense does it impose a limitation on the power of the Commonwealth?  Is it any place, including Sri Lanka, which is the Commonwealth’s submissions, or is it a place in our context because the plaintiff makes claims under CAT, Refugee Convention and the ICCPR, a place where he is safe from refoulement to Sri Lanka, as that term has been understood and articulated, which means no risk.  Now, we say there is necessarily a risk without any legal framework in which protection is to be offered.

KIEFEL J:   How can we determine the question of the risks to which the plaintiff would be put hypothetically if he was received in India on the bare facts that we are given in this case?

MR MERKEL: Your Honour, because we say that on the special case, question (1)(a) raises the question of whether the taking decision – does section 72(4) authorise the detention and taking:

whether or not the plaintiff would be entitled by the law applicable in India to the benefit of the non‑refoulement obligations –

We say the absence of India being a signatory to and bound by the Refugees Convention and have assuming obligations under CAT means that they would not be entitled by the law applicable in India to the benefit of the non‑refoulement obligations.  We say that is a question arising directly on the basis that it has assumed no obligations under either convention.

HAYNE J:   How does that question arise in a case where, at least on one view of the special case, it is agreed that these persons could not be - and in fact they were not - landed in India?

MR MERKEL:   Because, your Honour, it goes to the validity of the detention between 1 July and 27 July for the purpose of taking them to a place which we say the power under 72(4) did not authorise.

KIEFEL J:   But you do not need to rely upon non‑refoulement.  Your primary case is that in every practicable sense the decision to take to India was not achievable, full stop.

MR MERKEL:   If your Honour accepts our first argument, that is correct, we do not need to go to the second argument.  But we do have two distinct construction arguments, both of which take us to the same conclusion.  This is really a construction argument that the power is limited by the non‑refoulement obligation to take to a safe place which means a place that can determine claims for non‑refoulement.

KIEFEL J:   Is it a construction question or is the non‑refoulement argument that you are putting really an attack upon the validity of the decision itself, the decision to take?

MR MERKEL:   No, it is entirely a construction argument which would then go to invalidity if it be accepted, so it is a construction argument and if the limitation is there it has been breached in the present case, so it is two steps.

GAGELER J:   So, your argument is that as at 1 July 2014 when the decision was made in fact to send these people to India, India could not have been a place within the scope of 72(4)(b) for two reasons, as I understand it.  One is, your first argument, that there was no arrangement in place as at that date for disembarkation.  That is point one, and point two, India was not a place where the decision‑maker in Australia could be satisfied – or from which the person would not be refouled to Sri Lanka.  I put that badly, but that is the point, is it not?

MR MERKEL:   Yes, your Honour, because the prerequisite, we say, in question (1)(a), that they were not entitled by law to the benefit of non‑refoulement obligations is not satisfied in respect of the Refugees Convention and CAT because there is no assumed obligation under either and therefore, irrespective of India’s past practice, we say protection and safety has to be based on two elements, practice and legal protection for that practice.  Effective protection may have existed in the past, that is a question of fact, but it can change on the policy of the government of the day.

When one looks at Lauterpacht and passages cited by this Court of Lauterpacht in M70 we say that it is clear that to be safe, a safe destination for indirect refoulement, or to have no risk, it is only achievable by a legal right to protect yourself in the sense of first having a determination of your status because you cannot be determined to be a refugee entitled to non‑refoulement unless you have a determination, and secondly, based on that determination, have legal protection refoulement. 

Now, we say a country that has assumed no obligation under either Convention cannot offer, and has no process for offering, those protections.  I want to emphasise that the contest between us and the Commonwealth on this is there is no such limitation on the power, so the Commonwealth could have sent them back to Sri Lanka.  That is the real contest here.  There is either a limitation or there is not, and the Commonwealth’s “any place” means Sri Lanka was open to it.

FRENCH CJ: Does your constraint on the second argument on the power conferred under section 72(4) depend upon reading it with section 74 and construing “safe place” by reference to the non‑refoulement obligation, or does it stand independently of that?

MR MERKEL:   Your Honour, 72(4) is a textual and contextual stepping stone in support of the argument, but it is but one of many.  We say a proper reading of the scheme in 71, 72(4), (5) and 74 means that you must – if you go to 71, your Honour:

A maritime officer exercising powers in relation to a vessel . . . may place or keep a person in a particular place on the vessel, installation, aircraft or land.

If one follows that scheme through to 72(5), and it is a place ‑ ‑ ‑

KIEFEL J:   Another place.

MR MERKEL:   Well:

may place or keep a person in a particular place on . . . land.

We say, may place ‑ ‑ ‑

HAYNE J:   Do you not read 71 distributively?

MR MERKEL:   May place – we say ‑ ‑ ‑

HAYNE J:   But is not 71 saying exercising powers in relation to a vessel may keep a person in a particular place on that vessel; exercising powers in relation to an installation, a particular place on that installation; et cetera, that form of distributive reading is required of 71, is it not?

MR MERKEL:   Your Honour, yes, but exercising powers in relation to a vessel is this case because the powers that gave rise to detention were powers ‑ ‑ ‑

HAYNE J:   That is the Indian flagged vessel.

MR MERKEL:   Yes, the Indian flagged vessel.

HAYNE J:   Could dictate where they stayed on the Indian flagged vessel.

For that purpose, as was discussed this morning, the master has powers to be exercised with the primary consideration of the interests of the vessel as a whole and those powers are reflected in Articles 92 and 94 of UNCLOS.  The master’s primary duty there will be to – will be safety and efficacious and speedy delivery of that vessel.  The master may, in fact, have on that vessel a range of persons who have a range of interests.  There may be a number who have no claim to any form of refugee protection.  There may be some who have a claim of that sort.  Some may have other claims.  Some may have, say, family interests, for instance, or the interest of children which say it is imperative I be taken immediately to the first available port. 

The construction we are offering would allow the master, in that circumstance, to say I am not precluded by law from considering how Australia’s international obligations under any one or more treaties or custom impact on me but they are not mandatory considerations.  I may take them into account and give them the weight that is appropriate in the circumstances of the case depending upon what other considerations are also facing me.  So in that sense permissible but not something where unless the master has taken it into account because the master might ultimately say the overall interests of this vessel are best served by immediately taking it to port A.  Taking it in port A may then raise further issues which are unavoidable for certain persons on the vessel but I have the flexibility to respond in that fashion.

KIEFEL J:   But where there are no considerations of urgent physical safety - I take your point about that - why would not the question of refoulement not then form a most relevant consideration for the master of the vessel?

MR GLEESON:   Your Honour, the distinction I am seeking to draw, as I hope I have tried to make clear, is between that which must be taken into account, failing which there is an invalid exercise of power and that which may be taken into account and given the weight that is appropriate in the case.  On the lesser constraint that I am offering, it allows for the flexibility which respects the range of circumstances which could arise, some of which would involve international relations between Australia and other countries, some of which will involve decisions at the highest level of the Executive.

KIEFEL J:   I understand what you are saying.  What you are saying is it just comes down to the question of weight to be given in the circumstances.

MR GLEESON:   Yes, and then also perhaps ‑ ‑ ‑

KIEFEL J:   But you do not deny that refoulement might be a relevant consideration?

MR GLEESON:   I do not think I am denying that, no, and the vision portrayed by the revised explanatory memorandum, the document prepared in response to the Human Rights assessment was one can conceive of circumstances where the two intersect.  The maritime power is here and there could possibly be a claim of non‑refoulement.  We have international obligations.  This is not a statute where Parliament said we intend and require our international obligations to be rendered irrelevant.  It is not such a statute where Parliament says, for the purpose of domestic law they can and should be forgotten.

What Parliament contemplated was that procedures would be put in place whereby in the exercise of power, steps which would be taken which would purposefully be directed towards reconciling any and every consideration which might arise in this difficult environment, including non‑refoulement, and no doubt on the facts of this case, as I told your Honour Justice Crennan on the first hearing, the Commonwealth gave an undertaking not to take the persons to Sri Lanka for very good reason, that that step would be the most secure way to protect against what might – at least on allegation – be a possible issue of Australia’s international obligations, and therefore, what would be, if possible, a better way of exercising the statutory power reconciling all the different considerations that came into play.

Fortunately, in this case, the Commonwealth was not confronted with the ultimate hard question, what would happen if the decision were taken, that balancing all considerations, Sri Lanka was the best place – and yet there were claims that Sri Lanka was not an appropriate place for other reasons – and that situation was avoided. 

So the position that I am seeking to put is, I trust, a measured one.  Where Parliament has legislated in recognition of those international obligations, where the obligations are to be made limits on power, as in the area of UNCLOS, Parliament has said so; where they are left as permissible considerations, that is evident from the text.

FRENCH CJ:   Now, at some stage you are going to, in that context, address the operation of section 12, particularly in relation to the application of UNCLOS.  It seems to me there is a specific provision there for the application of particular international agreements or decisions and one of them picked up in the regulations is UNCLOS, so there is a specific thing, but you are not suggesting that that is a codification of the application of international agreements and decisions, are you?

MR GLEESON:   No.

FRENCH CJ:   Excluding the ordinary principles of ‑ ‑ ‑ 

MR GLEESON:   No.  Where section 12 might have some work to do is, for instance, in section 41(1)(e) in the area where we are seeking to exercise a power between Australia and another country but over a foreign vessel where, prima facie, that might raise the questions Justice Hayne has raised as to whether that is an exorbitant jurisdiction, it is not our vessel.  Then we need to have an appropriate condition which enlivens our power, and apart from the present type of case of investigating contraventions in the contiguous zone under (e) it could be to ensure compliance with or investigate contraventions of international agreements or decisions applying to foreign vessels and so section 12 would feed in to help you know whether you had such a basis for your exercise of power.

I do note that 41 is concerned with powers over foreign vessels at places between Australia and another country.  Given the definitions of “country” in section 8, that includes relevantly the territorial sea, so that would include the area between the commencement of our contiguous zone and the commencement of the territorial sea of another country. 

In the present case, when the persons were taken off the Indian vessel and put on the Australian vessel, the next part of their journey occurred outside the constraints of section 41 because they were on an Australian flagged vessel and in answer to the questions this morning as to whether their passage thereafter should be viewed as an exorbitant jurisdiction, the answer is it should not because consistently with Articles 92 and 94 of UNCLOS under international law principles the Australian vessel had exclusive jurisdiction on the high seas over the – Australia had exclusive jurisdiction over the vessel and the persons on it and, indeed, Australia had the duties in Article 94 and so the jurisdiction was not exorbitant in that respect.

KEANE J: Mr Solicitor, the point of being interrupted, section 72(4), do we look at that as a provision which authorises the making of decisions apt to affect the rights of persons or do we read it as a provision which authorises action that is invasive of their rights?

MR GLEESON:   The latter.  What is important in the two‑stage structure of this Act is that the authorisation that is needed to get the process going under section 16 is made by the most senior officer available to exercise the maritime powers.  That officer makes a decision – in this case based on section 17 – based on a suspicion of reasonable contravention.  Once that decision is made at that level, any or all of the powers in Part 3 are available for exercise by any or all maritime officers. 

The one element we would like to add to the statutory scheme that has not been given much attention by the plaintiff is the linking element in sections 30 to 32 which is that the powers are then exercised only in accordance with the subdivision and, particularly, under 31 and 32 they are exercised in accordance with the authorisation for defined purposes of investigating the contravention preventing contraventions and so on.

So the ultimate link that is needed between what appear to be bare facultative powers as opposed to decisions of some tribunal and some legal constraint is found in sections 30, 31 and 32, and it may well be that the words “in accordance with” in sections 30 and 31 are read at subject or constraint of legal reasonableness.  That is even contemplated in the explanatory memorandum, so the only question for the individual maritime officer is if I exercise this power will I be purposefully advancing the purpose which has been identified in the authorisation? 

So one is not actually saying I am here making a decision affecting rights and interests and liberties, all that, in effect, has been done at the original stage of the authorisation.  This contravention, suspected, requires the whole gamut of powers to be available depending on exigencies facing the particular officer.

GAGELER J:   So, Mr Solicitor, as I understand it, there was a decision of an authorising officer under section 17(1). That is the decision we see in paragraph 13(a) of the special case. That authorisation created by that decision then remained in force under section 23. Is that correct?

MR GLEESON:   Yes.

GAGELER J:   It was pursuant or as a result of that authorisation remaining in force that the maritime powers could be exercised under section 72.  I think you have just told us that the exercise of those powers must be for a purpose set out relevantly in section 31 or 32.  What was the relevant section 31 or section 32 purpose that was being served by taking these people to India?

MR GLEESON:   Yes, there are two purposes.  The first is under section 31(a), the concept of investigating the contravention when one understands that in the context of section 17, which it is a reference back to, includes exercising any or all of the powers in a manner which may be a reasonable response to a suspected contravention and a suspected contravention, when one looks at the concept of being involved in a contravention of an Australian law, in section 9 includes contraventions that are past, present or likely future, so the contravention is the attempt to get to Australia without compliance with our law, and the section 31(a) power uses “investigate” in the broad sense that I have just indicated.

Then as well as that, if there be any doubt under section 32, 32(1)(a) includes both investigate and prevent contraventions that the officer on reasonable grounds suspects have occurred.  In this case the officer is the same person as in the authorising officer was the captain of a vessel, and that is also the person immediately responsible for the taking of the vessel to a particular place.  In addition to that there is 32(1)(b):

to administer or ensure compliance with any monitoring law –

which is defined to include the Migration Act.

The limit we have accepted – I am sorry, your Honour, I have gone over a minute or two – is that “in accordance with”, read amply and purposefully, means that the powers that are chosen from the toolbox, if you use that expression, by the particular maritime officer must be purposefully directed to the authorisation and, in that sense, legality is always controlled.

HAYNE J:   You will tell us tomorrow, no doubt, how, having investigated the possibility of contravention, sections 69, 71 and 72 were then engaged and why the exercise of those powers is not purely classified as exorbitant?

MR GLEESON:   Undoubtedly, your Honour.

FRENCH CJ:   The Court will now adjourn until 9.45 tomorrow for pronouncement of orders, and 10.15 for the resumption of this matter.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 15 OCTOBER 2014