On 29 June 2014, an Indian flagged vessel carrying the plaintiff and 156 other passengers was intercepted by an Australian border protection vessel ("the Commonwealth vessel") in the Indian Ocean about 16 nautical miles from the Australian territory of Christmas Island. The plaintiff is a Sri Lankan national of Tamil ethnicity, who claims to have a well-founded fear of persecution in Sri Lanka on grounds which would qualify him as a refugee under the Refugees Convention.
The interception took place within Australia's contiguous zone as declared pursuant to s 13B of the Seas and Submerged Lands Act 1973 (Cth) ("the SSLA"). The officer in charge of the Commonwealth vessel authorised the interception on the basis of his suspicion, on reasonable grounds, that the Indian vessel was involved in a contravention of the Migration Act 1958 (Cth) ("the Migration Act"). The Indian vessel having become unseaworthy by reason of a fire in the engine house, its passengers were taken on board the Commonwealth vessel. They were detained on the Commonwealth vessel, which began sailing to India at the direction of the Australian Government, reflecting a decision of the National Security Committee of Cabinet ("the NSC") made on 1 July 2014. The detention and the taking of the passengers towardsIndia was done in thepurported exercise, by maritime officers, of maritime powers to detain and take persons to a place outside Australia pursuant to the Maritime Powers Act 2013 (Cth) ("the MPA").
Having reached the vicinity of India on about 10 July 2014, the Commonwealth vessel remained there until about 22 July, when it became apparent that Australia would not, within a reasonable time, be able to reach an agreement with India which would permit the discharge of the passengers onto Indian territory. At the direction of the Minister for Immigration and Border Protection ("the Minister"), given for what were described opaquely in these proceedings as "operational and other reasons", the Commonwealth vessel then sailed to the Australian territory of the Cocos (Keeling) Islands. There the passengers, still purportedly detained under the MPA, were taken into immigration detention pursuant to s 189(3) of the Migration Act.
Injunctive proceedings had been instituted in this Court on behalf of the passengers while they were still on the high seas. The present proceedings, commenced by CPCF, allege that his detention on the Commonwealth vessel was unlawful and seek damages for wrongful imprisonment. A number of agreed questions, based upon agreed facts, have been referred to the Full Court by way of special case. The central question is whether maritimepowers under the MPA, and/or the non-statutory executive power of the Commonwealth derived from s 61 of the Constitution, authorised the detention and taking of the plaintifffrom Australia's contiguous zone to India. The particular questions and the answers to them are set out at the end of these reasons and are substantially to the effect that the detention and taking of the plaintiff was lawful pursuant to s 72(4) of the MPA.
High Court of Australia
The Plaintiff contented that the detention of themselves and the other passengers aboard the vessel that was boarded by Australian Border Protection officials in the Australian Contiguous Zone was inconsistent with Australia’s obligations under the Refugee Conventions and the Convention against torture, specifically the non-refoulmont clauses. The court held that while there was a requirement to read Australian laws in light of international law, nothing about the boarding and detention was unlawful. The court noted that the unseaworthy nature of the vessel enlivened Australia’s Search and Rescue obligations and the fact that the vessel was in the Australian contiguous zone meant that the detention was a valid application of Australian immigration and border protection laws.
High Court of Australia
This case demonstrates that under Australian law the boarding and subsequent detention of irregular unauthorised arrivals, even if that detention occurs on the high seas, where the interception occurs within the contiguous zone by government personnel is lawful.