CPCF v Minister for Immigration and Border Protection

The plaintiff, on board a vessel intercepted in Australia's contiguous zone, was detained by Commonwealth officers and taken to India. The detention was in implementation of a decision by the National Security Committee of Cabinet, with the maritime officer acting without independent consideration of whether the plaintiff should be taken to India, and without a prior agreement with India regarding the plaintiff's reception. The case concerned the lawfulness of this detention and the plaintiff's removal, raising questions about the scope of powers under section 72(4) of the *Maritime Powers Act 2013* (Cth) and the executive power of the Commonwealth. The Full Court of the High Court of Australia was asked to determine these issues.

The central legal questions before the Court were whether section 72(4) of the *Maritime Powers Act* authorised the detention and removal of the plaintiff to India, irrespective of whether India would afford him non-refoulement protection, and regardless of any prior agreement for his reception. The Court was also asked whether the power under section 72(4) was subject to an obligation to afford procedural fairness to the plaintiff, and whether the non-statutory executive power of the Commonwealth could authorise such actions. Finally, the Court had to determine if the plaintiff's detention was unlawful for any period and if he was entitled to damages.

The High Court, by majority, answered the questions posed in the special case. It held that section 72(4) of the *Maritime Powers Act* did authorise the detention of the plaintiff for the purpose of taking him to India, even in the absence of an agreement with India and without independent consideration by the maritime officer. The Court found that the power to detain and take the plaintiff to India was not subject to an obligation to afford procedural fairness, nor was it constrained by Australia's international non-refoulement obligations in the manner argued by the plaintiff. Consequently, the Court concluded that the plaintiff's detention was not unlawful for any period between 1 July 2014 and 27 July 2014, and he was not entitled to claim damages. The proceeding was dismissed, with the plaintiff ordered to pay the costs of the special case.