On 29 June 2014, an Indian-flagged vessel was intercepted by an Australia border protection vessel (Commonwealth vessel) in the Indian Ocean about 16 nautical miles from the Australian territory of Christmas Island. The Indian-flagged vessel was carrying 157 passengers including CPCF (the plaintiff). The passengers were not Australian citizens and did not hold visas. The plaintiff was a Sri Lankan national of Tamil ethnicity and claimed to have a well-founded fear of persecution in Sri Lanka which would qualify him as a refugee under the Refugee Convention 1951.

The interception took place in Australia’s contiguous zone. The officer in charge of the Commonwealth vessel authorised the interception on the basis of his suspicion that the Indian-flagged vessel was involved in a contravention of the Migration Act 1958 (Cth). The Indian-flagged vessel had become unseaworthy due to a fire in the engine house so the passengers were taken on board the Commonwealth vessel. The passengers were detained on board the Commonwealth vessel which set sail for India at the direction of the Australian government.

The Commonwealth vessel reached India around 10 July 2014 but by 22 July 2014 it became apparent that the Australian and Indian governments were not going to reach an agreement allowing the passengers to disembark in India. The Commonwealth vessel was then directed by the Minister for Border Protection and Immigration to set sail for the Australian territory of the Cocos (Keeling) Islands. There the passengers were taken into immigration detention. The plaintiff alleged that his detention on the Commonwealth vessel was unlawful and sought damages for wrongful imprisonment. The plaintiff also claimed that he had been denied procedural fairness.

The detention and subsequent taking of the passengers to India was done in the purported exercise of maritime powers to detain and take persons to a place outside Australia pursuant to the Maritime Powers Act 2013 (Cth) (the MPA). The plaintiff relied on Australia’s obligations under international law as limiting the scope of the relevant maritime powers under the MPA or affecting their construction. Therefore, the court considered the relationship between the MPA and relevant international conventions, including UNCLOS.

Art 98 of UNCLOS provides that every state shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea in danger of being lost. Accordingly, the Navigation Act 2012 (Cth) imposes an obligation on the master of Australian-flagged vessels (including customs vessels) to proceed as fast as practicable to the assistance of persons in distress at sea.

Art 33 of UNCLOS provides that, in respect of the contiguous zone, 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. UNCLOS also provides that the ships of all states have the right to innocent passage through the territorial sea of a coastal state (art 17). Passage is innocent provided it is not prejudicial to the peace, good order or security of the coastal state (art 19.1). Passage will be considered prejudicial if, in the territorial sea, the foreign ship engages in the loading or unloading of any person contrary to the immigration laws and regulations of the coastal state (art 19.2.g). The Sea and Submerged Lands Act 1973 (Cth) (SSLA) was amended in 1994 to introduce s 13A which declares that 'Australia has a contiguous zone'. A definition of contiguous zone was inserted as having the same meaning as art 33 of UNCLOS. The SSLA declares a contiguous zone and asserts Australia’s rights in that zone, which gives content to the geographical qualifications on the exercise of maritime powers under the MPA.

Held: French CJ, Crennan, Gageler and Keane JJ held that the question of whether to take non-citizens detained in Australia’s contiguous zone to another country is a matter appropriate for decision at the highest level of government by Ministers who are responsible to the Parliament. Therefore, a maritime officer is not required to consider the exercise of power as a personal discretion and the officers acted lawfully.

If a non-citizen is brought into Australia on a vessel without a relevant visa, the master, owner, agent, charterer and operator of the vessel are each guilty of an offence against s 229 of the Migration Act. The maritime power conferred by s 72(4) of the MPA may be exercised in the contiguous zone of Australia to investigate or prevent a contravention of the Migration Act occurring in Australia. Detention of a person must be incidental to the exercise of that power. It must not be disproportionate in duration or character to the purpose it serves. The decision to take a person to another country must be based upon the reasonable belief that the person may be discharged there. Here, notwithstanding India’s refusal to allow the passengers to enter their territory, negotiations were taking place between Australia and India and therefore there was a reasonable possibility that agreement would be reached and the exercise of power could not be said to be invalid. The maritime officers exercised their power under a chain of command. It does not follow that the power conferred under s 72(4) is conditioned by procedural fairness.

Hayne, Bell and Kiefel JJ dissented, finding that the place to which a person is taken under s 72(4) must be a place which, at the time the destination is chosen, the person has the right or permission to enter. The plaintiff had neither the right nor permission to enter India. Hayne and Bell JJ further noted that art 33 of UNCLOS provides that the contiguous zone is an area in which 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 rights of enforcement. It may be accepted that exercising control to prevent infringement of laws of the kind described in art 33 would include the coastal state intercepting in its contiguous zone an inward bound vessel reasonably suspected of being involved in an intended contravention of one of those laws and it may also be accepted that there is a power to detain the vessel (at least for the purposes of investigating whether there a threat of a relevant contravention). But whether art 33 permits the coastal state to take persons on the vessel into its custody or take command of the vessel or tow it out of the contiguous zone remains controversial.