CPCF v Minister for Immigration and Border Protection & Anor [2014] HCATrans 228 (15 October 2014)

Last Updated: 15 October 2014

[2014] HCATrans 228

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 WEDNESDAY,15 OCTOBER 2014, AT 10.16 AM

(Continued from 14/10/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Good morning, your Honours. Could I deal first with the questions raised at pages 88 and 89 of the transcript yesterday? Two questions: one concerns the connection between the authorisation and the exercise of powers, and then a second question concerning whether the jurisdiction is exorbitant. If I could start with the Act at sections 17, 31 and 32, sections 17 through to 26 allow for authorisations in a range of different circumstances and each of those circumstances then sees a reflection in section 31. Section 31(a) is the reflection of an authorisation under section 17, and so on, through the paragraphs of section 31.

KIEFEL J: Section 17 does not appear to refer to a person - authorisations in relation to persons other than an isolated person who is defined as a person who is not on or in the vicinity of a vessel. I think that is carried - the reference to an isolated person is carried through the Act, but perhaps it is not necessary if the authorisation relates to the vessel. The maritime powers later pick up persons on the vessel, but just a little curiosity.

MR GLEESON: Your Honour is correct that the authorisation could be in relation to one or more of four different matters, vessel, installation, protected land area or isolated person. In the present case the authorisation was solely in relation to the vessel, the Indian vessel, so we accept that is the subject matter of the authorisation. It is then an authorisation for the exercise of the maritime powers. That picks up any or all of the powers we find later in the Act, and there is required to be a suspicion that, relevantly, the vessel was involved in a contravention of Australian law.

Because the concept of involvement in section 9(2) involves a vessel that, past, present or intended future, is being used in contravention we would submit that there is inherent within section 17 the concept that the exercise of the powers is to be in reasonable response to the contravention, past, present or intended future, and therefore can include, not just finding out, is something occurring, but taking appropriate remedial action. The remedial action might include a rest, the remedial action might include disruption or prevention of the contravention being carried through to its intended effect. So our first submission would be that within the concept of the authorisation under 17 not only is it any or all powers that can be enlivened in relation to the vessel but it is for the purpose of reasonable remedial response to, as well as strict investigation of, whether the contravention is occurring.

In that sense, when one then comes to section 31, paragraph (a), we would submit that the concept of “investigate the contravention” should not be read solely in the sense of, find out if there is a contravention occurring, but should be read in the broader sense of, take all reasonable, remedial response, governed by the powers to the suspected contravention.

FRENCH CJ: Would not that be covered in the context of the Migration Act by ensuring compliance with the monitoring law?

MR GLEESON: Yes, and that would also be part of the broader concept of investigation could include - - -

FRENCH CJ: I am talking about the concept of prevention really, which picks up the term used in UNCLOS, I think, at least in relation to the contiguous zone.

MR GLEESON: Yes, it picks up Article 33 of UNCLOS in terms of, if one is in the contiguous zone, exercising the control necessary to prevent the infringement of law or in an appropriate case, to punish infringement.

HAYNE J: Well, why does 32(1)(a) not deal with it specifically?

MR GLEESON: Our alternative argument is that 32(1)(a) would cover the present case, but before I rush to the alternative I need to put to your Honours that if one looks at the relationship between 31 and 32 as a whole, they bear this character; 31 is the direct exercise of any or all of the powers in response to the matter which enlivened the authorisation.

Section 32 is designed to deal with that typical problem where a person carrying out a police power, under a particular authorisation on the job, finds there is something else going on which may be of a similar character but has not been covered directly by the authorisation, and your Honours will see that each of the paragraphs of 32(1) bear a close relationship back to 31 so that, for instance, if I take a simple case, 31(b),

The maritime officer may . . . in accordance with the authorisation . . .

(b) administer or ensure compliance with the monitoring law -

That is the monitoring law which was identified in the section 18 authorisation, but if in the course of a job the officer finds another monitoring law, requires administration or compliance, the officer then can move into the expanded area under section 32.

That same parallel can be seen in each of the paragraphs of section 32, for example, under 32(1)(e) you can arrest persons you suspect have committed any indictable offence, whereas under the parallel of 31(e) it is a person where you are enforcing directly the warrant under the law.

FRENCH CJ: Here we are looking to the purposes of the powers, are we not? The content is to be found in Part 3?

MR GLEESON: Yes. This is just for the purpose, and this provides the link or the bridge which enables the particular maritime officer, when exercising a particular power, to tie that back, either to the provisional authorisation under section 31, or to one of the extended matters under section 32.

BELL J: Yesterday, I understood you to rely on 31(a). Do I understand this morning you also rely on 31(b)?

MR GLEESON: I cannot in this case because the authorisation that is referred to in the special case was only a section 17 authorisation.

BELL J: I understand.

MR GLEESON: But what I can rely upon in the fallback is that under 32(1)(a), to the extent that “investigate” was read, contrary to my submission, only as find out but not respond to, then under 32(1)(a) the relevant officer, in this case being the same person – the captain – could investigate and prevent the contravention. It happens to be the same one and therefore all of the powers would be enlivened.

I put that only as a fallback because structurally 31 and 32 have the link I have suggested and in a case like the present the primary purpose of 32 would be to cover the case where, after you have started to exercise the powers, you find some other contravention is going on. But in its language it would be broad enough to cover any contravention and therefore it could cover any slippage or gap in 31 - 31(a). So, for that reason - - -

HAYNE J: But is 31(a) limited to what is specifically authorised, whereas by contrast 32 is the incidental?

MR GLEESON: That is the division, yes.

GAGELER J: Do you also rely on 32(1)(b)?

MR GLEESON: Yes, because although that was not in the authorisation, it is there in the incidental category.

FRENCH CJ: At some stage can you just indicate how the decision of the National Security Committee of Cabinet fits into the statutory framework?

MR GLEESON: Yes.

FRENCH CJ: It is really a chain of command question, I suppose.

MR GLEESON: Yes. Your Honour, the short submission is that the decision of Cabinet is a non-statutory exercise of executive power. It is not directly referred to in the statute and it is not a decision under the statute.

FRENCH CJ: Presumably it informs the action of a relevant Minister.

MR GLEESON: It informs the action of a relevant Minister because the persons who comprise the National Security Committee are a small number of the most senior Ministers in the government. If one thinks of that constitutionally, each of those Ministers has a responsibility to Parliament under section 64 and collectively as a subcommittee of Cabinet, although the term is not in section 61, it is there, and they have responsibility to Parliament for that decision. From there, by reason of the chain of command in paragraph 14 of the special case, the decision is conveyed down through the structure to, in this case, the captain.

We have given your Honours some of the examples in the annexure to our written submissions of the statutory provisions which require the military to ultimately act under civilian control, and that is most clear in the case of sections 8 and 9 of the Defence Act where the Chief of the Military acts on the Minister’s direction. So, contrary to what Mr Merkel at least toyed with, that the military in Australia is not under civilian control, it is by reason, first, of section 68 of the Constitution, and second, the statutory provisions I have referred to.

Then coming back to your Honour the Chief Justice’s question, there being a non-statutory decision that the particular power under 72(4) should be exercised in a particular way, namely that it should be exercised under (4)(b) as opposed to (4)(a) and under (4)(b) to a particular place, when the captain implements that decision through the chain of command the captain is not taking himself or herself outside the scope of that power.

In some cases decisions under 72(4)(b) will not involve the chain of command. We have given the simple examples of vanilla fishery offences where the decision may simply be taken without evidence the chain of command. We have also given the illustration that sometimes within the chain of command there may be, as it were, a limited discretion given by the senior officer to a more subordinate officer as to which power to exercise.

An example of that is in section 59 where, in the present case, once the Indian vessel was boarded any maritime officer could conduct a search, and ordinarily perhaps the captain might say to subordinate officers, conduct a search. As to how an officer would carry out the search, for instance, under section 59(5), the captain may leave it to the officer to choose which equipment or things to use.

So there can be a variety of situations where chain of command is determinative, as in the present case, where it is partially determinative in the example I have given, or where it is not called into play and our submission is that the statute accommodates the chain of command having its appropriate role in the given case. The exception the Court does not reach in this case is what happens if the order coming through the chain of command is not a lawful order and then that would raise a particular question as to how the power responds to such an unusual situation, it not being the present case.

FRENCH CJ: Now, the vessel which intercepted the Indian vessel was described at paragraph 12 as a “border protection vessel”. Is that a reference back to the “Australian customs vessel” mentioned in paragraph 11?

MR GLEESON: Yes. I asked about that slight difference in language. I am told it is the same.

KIEFEL J: Mr Solicitor, do I understand you to say that the relevant decision to take was the Minister’s decision, though informed by the National Security Council?

MR GLEESON: No. Consistent with paragraph 16 of the special case, it is the Cabinet, including the Minister, but a decision, as I have indicated, where there would be multiple lines of responsibility to the Parliament, one by the Minister through section 64 and secondly, through these collective executive officers of state under the section 61 and 62 mechanism. In that sense, civilian control over actions carried out, either by strict military forces, such as the navy, or by allied forces such as Customs.

GAGELER J: Who needs to have the purpose in section 31 or 32 in those circumstances? Is it a subjective purpose - - -

MR GLEESON: No, it is an - - -

GAGELER J: Is it an objective purpose?

MR GLEESON: It is an objective link that, for instance, boarding the vessel has an objective link to the investigation in the broad sense of the suspected contravention.

HAYNE J: But do the events concerning the National Security Committee have any connection at all with the engagement of 31 and 32. Sections 31 and 32 were engaged, were they not, by the vessel on the scene, or rather by the crew of the vessel on the scene?

MR GLEESON: That is correct, your Honour - - -

HAYNE J: Without reference to NSC.

MR GLEESON: They were engaged by the crew on the sea, particularly if one comes to look at the steps sequentially - which the Court asked me to consider yesterday, section 69 and following, that the first step was the detention of the vessel under section 69(1) and that had the objective link under section 31 and 32 with the authorised purpose.

Had the vessel remained seaworthy and had otherwise been appropriate, it would then have been available under section 69(2) to take the vessel, including under section 72(3), persons required to remain on it, to a place. That would have been available and, on the Commonwealth’s submission, that could have occurred free of any of the limits, substantive or procedural, that the plaintiff contends.

As the vessel was not seaworthy and the persons were transferred to the Commonwealth vessel, whether one regards that as strict rescue within international law involving volenti or not, the persons are now on the Commonwealth vessel and the power in section 72(4) is then enlivened to detain and take to a place, either Australia or elsewhere. The link between 72 - - -

HAYNE J: Sorry, you said that that was because they were on the Australian ship? Section 72 is engaged because they were on the Indian ship, I think.

MR GLEESON: Your Honour is correct. Section 72 is engaged because they are on the Indian ship, and then it provides for a number of options. In a case where the Indian ship remains seaworthy, the options can be taken under 72(2) or (3) to put them back on the Indian ship, require them to remain on that ship and take the Indian ship to a port. That is what I am indicating would have been an option had the vessel remained seaworthy.

So what happens when the vessel does not remain seaworthy and the correct thing is done by the captain of the Australian boat of taking them on the boat? I was just pausing at that point to observe, taking up your Honour Justice Crennan’s questions, whether that was strict rescue under international law or simply a prudent and proper measure does not need to be resolved in this case and the agreed facts are silent upon whether it would be categorised as a rescue or not.

But there is no suggestion that there was a lack of power in the captain of the Australian vessel seeing persons on a sinking vessel and having otherwise already detained them to do the right thing and take them onto the Australian vessel. It is hard to think what else would be the right thing to do at that point because Australia has detained them on a vessel that is now sinking.

HAYNE J: Is there anything that says it was sinking, Mr Solicitor? The vessel was not sinking. Its motor was out of action. That is what made it unseaworthy.

CRENNAN J: It was leaking oil, was it not?

MR GLEESON: Yes, I accept that correction, your Honour. That is the fact recorded at paragraph 13(e). There is a pump failure, the engine seized, there is a small fire in the engine house, there is irreparable damage to the engine and the vessel is unseaworthy. That is the fact. Sinking is a hyperbole. My proposition is in that circumstance where Australia has detained lawfully persons on a vessel which is now unseaworthy, the next step in the enterprise, which was to bring them onto the Australian vessel next door, is not and could not be challenged as being beyond the powers available.

They are then on the Australian vessel and at that point I want to just deal with the fact that the authorisation continues to have life. The original authorisation, as we know, was to investigate in the broad sense the suspected contravention. The contraventions, as I indicated yesterday, were twofold. They were individual in the sense of the plaintiff and others contravening or trying to contravene section 42 of the Maritime Act and they were criminal offences on suspicion in respect to those organising and facilitating the mission.

What section 72(4) then allows is for a choice in the exercise of powers, a bifurcated choice to take the persons either to Australia or to any place outside Australia. Each of those bifurcated pathways provides for a different form of response, remedial response to the suspected contravention. If the first option is taken, in one sense that has allowed the intended contravention to play out because the decision to bring them here, if that occurs, then lifts the bar under section 42 and the individuals are no longer in contravention of the law, although the criminal offence does not disappear.

On the other hand, if the second pathway is taken, and they are taken to a place outside Australia, that is also a remedial response to the contravention, in one sense a more complete one, because it prevents the coming to Australia without permission achieving its purpose. So for that reason I would submit that each of the options under 72(4) can be seen to be linked within sections 31 and 32 with the authorisation under section 17, and that leads me to the matter I mentioned briefly yesterday that there is probably a scheme of legal reasonableness involved in the link under 31 and 32, namely, one could conceive of possible cases where the choice fell outside that which could reasonably be seen to be responsive to the authorisation, and there is no such issue of that character in the special case that is raised before the Court.

I mention that because yesterday there was some discussion as to whether there are any constraints on this power if the Commonwealth’s submission is correct, and Justice Keane asked some questions about the constraint in terms of the taking must occur within a reasonable time. The Commonwealth accepts that as a first constraint. The Commonwealth also accepts what I have just put, if it be different, that there is a constraint arising through sections 31 and 32, that the choice of power must be responsive in a legally reasonable sense to the authorisation.

FRENCH CJ: What do you mean by accepting that the taking must occur within a reasonable time? Is that the commencement or the completion or - - -

MR GLEESON: In a sense the completion, your Honour, as in the end point of the exercise at each point in time must be to strive to bring it to completion within such a time. One can envisage cases where on the journey things happen, things change, and one may need, indeed, to change the place. We do not agree with Mr Merkel, that you must be able at the commencement of the taking to say, this is, in all intention and likelihood, that the time by which I will have completed the taking, and then that time can be measured in advance as a reasonable time, it is a limit measured really by reference to events at each stage as they unfold, and the example - - -

FRENCH CJ: Well, would a speculative taking be reasonable? In other words, a taking where you have no idea as to whether you are going to be able to discharge at the end because that depends on contingencies?

MR GLEESON: Well, there would be a point at which a purely speculative taking may offend the limit. It is not this case, but there would be a point at which a purely speculative taking would not be a genuine exercise of this power, and let me give an example which is not this case. Let us assume the taking is to country X. Let us assume country X has said, in words of one syllable, on any view no vessel from Australia will be allowed in, whatever the circumstances, and we in fact will send out our army and navy to repel them. Now a purely speculative taking in - - -

FRENCH CJ: Well, there is no speculation about that, the end point is clear.

MR GLEESON: Well, the speculation would be the diplomatic skill of the country might enable a change of heart and the frost may thaw, but I am accepting that in extreme cases that sort of limit may be engaged, it is not the limit of this case, and there is just one other aspect of your Honour Justice Keane’s questions I wanted to take up. There was one strand of Mr Merkel’s argument that a reasonable time is measured by “as soon as [reasonably] practicable”. In other words, you have to choose almost the first place where it would be possible to take the people and you must exclude places which may take a little longer or which may have a little more contingency about them.

That is a limit we would reject because where the Act does impose that requirement, as soon as practicable it does so in express terms, and can I give your Honours three examples of that commencing with section 98? Where the officer is detaining persons “under a detention provision”, that is, for delivery up to a law enforcement authority, you must deliver “as soon as practicable”, and there is a similar limit then in sections 101 and in 102. And then to make all that clearer, under section 96 there is a code as to – well, perhaps not an exhaustive code, but there is a statement of a number of matters that must be taken into account in the objective assessment as to whether it occurred as soon as practicable.

We would submit that the Court should not read into the choice in section 72(4) a limit that one must choose the place which will enable the detention to end as soon as practicable. The section allows for a real choice, and if one was to infer this limit it would probably eviscerate the section because in most cases you would not be able to use section 72(b) and you would achieve Mr Merkel’s objective of saying, well, once you detain us really you will just have to bring us to Australia, which would write section 72(4)(b) out of the Act.

Your Honours, at that point I wanted to come to the second matter, which was whether the concept of exorbitant jurisdiction is of assistance in resolving these problems. Could I ask the Court to go to UNCLOS? I mentioned two provisions yesterday, but perhaps too briefly. The first provision is Article 33, and as we know, that is a provision which allows the exercise of coercive powers in the contiguous zone, let us say 12 to 24 nautical miles from the relevant state for the obvious and proper purpose that a state should be entitled to protect its own “customs, fiscal, immigration or sanitary laws”, and contrary to what Mr Merkel put yesterday, the contiguous zone may well be the appropriate place to stop these things happening rather than to simply wait until someone comes into your territorial sea and then try and do it.

The result of that is that where a state exercises Article 33 jurisdiction over vessels, it is exercising a jurisdiction which, within this field of universe, is not exorbitant. It is a jurisdiction we may exercise within our contiguous zone knowing that like states will be able to exercise like jurisdiction within their contiguous zone. It is an agreement between the nations that to this extent each state’s sovereignty is given this degree of recognition by other states.

HAYNE J: That turns on what is meant by “prevent”.

MR GLEESON: Well, there may be questions as to what is the control necessary to prevent and our submission would be that if one opens the Act next to Article 33 that section 41(1)(c), when it has allowed the exercise of powers on the foreign vessel at a place between Australia and another country - and then let us limit it down to the contiguous zone, so not just anywhere - for the purpose of investigating or preventing contraventions is consistent with Article 33(1)(a). So there is consistency and the limit on power has sought to respect what is an available jurisdiction on international law but not go beyond it in the sense of authorising things in the contiguous zone which UNCLOS does not - - -

HAYNE J: Well, that proposition elides the radically important question of whether the particular powers which are picked up by 41 are themselves within the international concept of control necessary to prevent.

MR GLEESON: Yes. Your Honour, I can accept that that could be a question in a particular case and that - - -

HAYNE J: No, in the case of this Act whether these powers, in particular the powers enlivened by 69, et cetera, are within it. It is that which I - - -

MR GLEESON: I understand your Honour’s - - -

HAYNE J: - - - suggest is a matter of controversy in the writings.

MR GLEESON: Yes, and I would not want to deny that controversy. If we ask though how or where does that inquiry, if let us say the Court were to resolve that controversy of international law, assist in this statutory construction exercise, if the endpoint is a Siskina-type exercise, the endpoint is to say Australia has taken on a power beyond that which it would recognise if exercised by a like state and therefore one should construe the power narrowly in favour of the foreigner.

The Siskina type of reasoning is in the area of court jurisdiction, not maritime jurisdiction, that, in Lord Diplock’s words, England would behave with comity when it exercises its long arm jurisdiction, mindful of the fact that it does not want other countries exercising excessive jurisdiction over it and mindful of its conflict of laws rules governing when it will recognise foreign judgments.

Our ultimate submission is that when the Court is construing the powers within Division 7 which directly affect persons, so that is 72(4) and it would also be 72(3), the Court is not assisted by any presumption that these should be regarded as powers which are contrary to those that would be accepted by other nations and powers which must be read narrowly in favour of the foreigner.

HAYNE J: How is that consistent with your acceptance that the extent of the power is a matter of controversy in the writing about the subject?

MR GLEESON: Well, the question is whether Parliament, in choosing this language of the greatest amplitude and flexibility, detain and take to a place here or a place there, whether Parliament in the dialogue between Parliament and the Court in statutory construction, is properly to be viewed by this Court as necessarily intending the narrowest construction operating in favour of the foreigner and the reason it is not - and I started on this yesterday in terms of the Act - this Act is an Act about the exercise of these law enforcement powers in a unique environment where the protections that persons get are the express protections in the Act; namely, firstly, the authorisation must come at a senior level.

There must be an appropriately considered decision to trigger the powers but, secondly, once that is done the powers are there for immediate exercise and the constraints of the two I mentioned, reasonable time and reasonable connection under section 31. I would be so bold as to put to your Honours, the Court is not assisted in teasing out the questions in this case by an assumption that the power should be read in the manner which is least restrictive of the foreigner’s rights.

The purpose of the power is deliberately to be invasive. Deliberately, if you are a person who is on a detained vessel, properly detained because the vessel is suspected of being in a contravention, you are brought under the maximum liberty as to where you should be taken.

HAYNE J: You point to any authority that would support the proposition that a statute dealing with alien persons in the contiguous zone should be given the fullest possible construction and application.

MR GLEESON: Your Honours might be dealing with the case.

HAYNE J: So your answer is no, you do not point to any authority?

MR GLEESON: For or against that issue, and so we are back to the familiar question of looking at this statute, and given its evident purposes and given its express protections, given the fact the statute authorises, for good purposes, invasion of private rights of all sorts, liberty, property, freedom of movement, as a necessary step we would ask the Court not to do other than read the statute, give it its true meaning and not draw an assumption that in this area or any area the statute starts from the proposition that we authorise the least invasive steps against the foreigner which are available on a constructional choice exercise.

KIEFEL J: It is not just against a foreigner, it is against detained persons, is it not? Is that not the context that - - -

MR GLEESON: Your Honour is correct, I took up “foreigner” as the - - -

KIEFEL J: Yes, I understand.

MR GLEESON: - - - particular constant in Siskina, but your Honour is correct. The issue is more general than that. It is about a person, lawfully detained, about which something now has to be done in order to complete the exercise. We are dealing with the question of what is it that may be done at that point in time.

KIEFEL J: But detention tells you something about the time within which things should occur, does it not, because detention should not be extended beyond that which is necessary?

MR GLEESON: It certainly tells you something very important about that issue. You are in a context of detention, detention for a purpose, and we have accepted that the detention should be brought to an end within a reasonable time having regard to the circumstances. Your Honour, I will seek some better instructions on whether, given that the matter your Honour Justice Hayne has said is in controversy in international law, about which at the moment I have offered you no specific submissions on what the principles are, and I do not think Mr Merkel has, as to whether there is anything appropriate and useful the Commonwealth would wish to put to the Court on that question, and if the Commonwealth does wish to put something I will ask your Honours for permission to put it in some appropriate form.

FRENCH CJ: Just before you go further, Mr Solicitor, it may be that you have covered this in an earlier remark, but could I just clarify, in relation to section 41 which precludes:

the exercise of powers in relation to a foreign vessel at a place between Australia and another country –

save for certain conditions, and one of those is the exercise of powers in the contiguous zone, what implications does that have for the exercise of powers beyond the contiguous zone, and I have in mind, of course, the taking on the high seas beyond the contiguous zone?

MR GLEESON: Yes. Thank you for that question, your Honour. It is not this case factually, but I will deal with the question, it is not this case factually because they were transferred to the Australian vessel and the point I wanted to come to next was that they leave the contiguous zone on the Australian vessel and then travel on the high seas towards India.

FRENCH CJ: Is the placing on the Australian vessel pursuant to 72(5) - we are assuming it is not a rescue for present purposes, 72(5)(a).

MR GLEESON: The answer to that is yes. So within the contiguous zone that placing has occurred for the purpose of travel - - -

FRENCH CJ: So it is all tied up with the – it is an incident of the powers conferred – or an aspect of the powers conferred by section 72.

MR GLEESON: No doubt. I am seeking to distinguish two cases. Had the persons remained on the vessel and it remained seaworthy and the vessel been towed from the contiguous zone into the high seas, then the question would have been is the enlivening of the power in the contiguous zone under 41(1)(c) enough to allow you to take that vessel into the high seas?

FRENCH CJ: Well, you say the preclusion is – the relevant words are “in relation to a foreign vessel”?

MR GLEESON: Yes, and so once the persons are on the Australian vessel, the preclusion in section 41 no longer does its work, and this was the other aspect of UNCLOS that I wanted to go to which I did not make fully clear yesterday, that under Article 92 - - -

HAYNE J: Article?

MR GLEESON: Article 92.

HAYNE J: Thank you.

MR GLEESON: Australia, subject to the exceptions I will come to, had exclusive jurisdiction over its vessel on the high seas and so the detention and the movement of the persons on our vessel in the high seas outside the contiguous zone is consistent with the international law principle in Article 92, and that is why in the Act you do not need a power such as section 41 to enliven the use of your particular powers when you are in the high seas if you are on your own vessel. So at the risk of - - -

FRENCH CJ: Does that mean you have moved outside the framework of the Act?

MR GLEESON: No. What it means is you are still in the framework of authorisation, connection - - -

FRENCH CJ: Maritime powers.

MR GLEESON: Maritime powers, but to the extent a limit had been placed on your power when you are operating on a foreign vessel, a limit which you had to have lifted under 41(1)(c), that limit has gone. So you no longer have any Division 5 geographical limits affecting you while you are travelling on the Australian vessel anywhere up until when you enter the territory of another country, at which point section 40 would be relevant. So the proposition I am putting is that, at the risk of provoking ire, the jurisdiction on the Australian vessel was not exorbitant under international law. It was a jurisdiction consistent with section 92 and the Act is consistent with international law in not imposing any section 41-type limit on the powers as the vessel travelled towards India.

HAYNE J: The decision to take, is that to be taken within the contiguous zone, or not? According to this division you have just sought to erect in which there are some limitations attributable geographically but once they are on board the ship those geographical limitations fall away – that is as I understand what you have just put – where is the exercise of the power to take fit in this geographic division of the world?

MR GLEESON: The geographic limitation falls away. The connection required by sections 31 and 32 never falls away because that is true for all powers. So the taking must still have the connection with the purpose of the investigation of the authorised contravention. So the decision occurs – the taking decision occurs in the contiguous zone and that decision has to meet two standards at that point: it has to meet 72(4), and I will come to that, and it also has to meet section 41(1)(c) or (d) at that point.

HAYNE J: But connected with investigation, connected with prevention of the offence?

MR GLEESON: Investigation in the sense I have sought to explain; investigation in the broad sense, which includes prevention and appropriate remedial response to a suspected contravention. So let me - - -

HAYNE J: I do not know what that means, Mr Solicitor. I do not know what appropriate remedial response means.

MR GLEESON: It means the steps I have sought to indicate. Firstly, my power is there to find out if this contravention is occurring. If I find out when I board the vessel it is not occurring, and if nothing else presents itself under section 32, my power is spent. I must leave the vessel, I must not detain it, I must not detain the persons on it.

If I find out the contravention does appear to be occurring, I may continue to exercise my suite of powers, provided it has the connection or the relationship with the contravention, and as I have indicated, where the contravention is trying to come to Australia contrary to our law and taking advantage of a criminal enterprise, the responses that are available to that are twofold. Firstly, bringing the people to Australia which achieves one set of purposes; secondly, taking them elsewhere which achieves a different set of purposes, both related to that contravention.

For completeness, I said to your Honours that Article 92 is the general rule of exclusive jurisdiction. There are some exceptions to that in UNCLOS, none of which are relevant to this case. They are broadly Articles 101 and following, which provide for universal jurisdiction over piracy, 109 unauthorized broadcasting, 110 visit where there is a failure to show the flag, and 111 the interesting topic of hot pursuit. Subject to those matters, the jurisdiction is exclusive.

To complete that topic, on the question of the Siskina, we have also provided the Court with an extract from the Court’s decision in Agar v Hyde (2000) CLR 552 at paragraph 42 where the Court approved and discussed Lord Diplock’s later decision in Amin Rasheed Shipping Corporation v Kuwait Insurance [1984] AC 50, and one sees there Lord Diplock fleshing out what he had said in Siskina, that the concept of an exorbitant jurisdiction arises where under the general English conflict rules, that is private international law conflict rules:

an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition -

and then there is some further discussion of that concept.

HAYNE J: Lord Collins has, I think, recently written on this subject. I think it may be in the LQR. As we know, Lord Collins is the editor of Dicey and Morris and his Lordship refers in that article, I think, to an emerging misunderstanding of the notion of exorbitance, in particular the need to understand exorbitance as dependent upon assertion of that which others do not assert and do not assert over your citizens et cetera.

MR GLEESON: Yes, thank you, your Honour. Could I then move to point 4 of our outline and deal with the first limit asserted by the plaintiff. The limit was put two ways in argument yesterday by Mr Merkel which are not identical. At page 25 in answer to your Honour Justice Gageler, he accepted that the limit was as per the special case, paragraph (1)(c), namely the places to which a person can be taken under section 72(4)(b) do not include those places where there is no existing agreement with the reception country at the time the taking commences or, perhaps as was raised yesterday, at the time the compulsory exercise of power over the person commences.

So that version of the argument, I will call the pre-existing agreement version, you cannot commence to exercise your compulsory powers under section 72(4) in respect to a place other than Australia unless at the time you start the exercise you have an agreement with the reception country. I am going to come back to some of the questions about what sort of agreement a little later, but that is the first version of his case.

The second version stated, for instance, at pages 18 and 20 of the transcript is a slightly broader version which is at the time the taking or exercise of power commences the vessel must be capable of discharging the persons at the intended place or discharge must be achievable.

Now, that is not the version in the special case. It would tend to raise some wider issues because if the inquiry is capability or achievability at that point in time, agreement would be an obvious way of achieving that but may not be the only way of achieving such an outcome. That would take the Court into questions which are not, I would submit in this case, including the notion of acquiescence, where the Court will know there is some debate in international law as to whether acquiescence is an available means by which one country can seek to discharge persons in another country without, as it were, agreement.

Now, I only raise that because I wish to be clear on behalf of the Commonwealth. We do hold Mr Merkel to the case that he has asked to have decided under paragraph (1)(c). We ask the Court not to decide a broader case based on capability or achievability and I do indicate that it would raise significantly different and important questions which are not properly joined in this case. They include the scope of the doctrine of acquiescence and, indeed, they may not stop at the question of acquiescence. There may be other means by which discharge is made effective which do not fall into either the agreement category or the achievability category.

So I have sought to identify there what is the limit. Nextly, what is the basis for the limit? There are effectively two bases put forward. The first is Mr Merkel’s primary one which he was reluctant to move from yesterday which is that this is a Lim-type limit, as he calls it, S4, M70 and the like, where he says unless you read in his limit one has the prospect of unconstrained executive discretion which cannot be tolerated.

Now, that is his primary basis. I want to accept that from the questions yesterday there may be other bases put that one can get to his limit textually or in particular whether or not one has unconstrained discretion, and so I would like to try and identify and respond to both those strands of the argument.

Your Honours, what I would like to do is to indicate that we have four reasons we offer as to why the Court would not imply this limit and I would like to identify the four reasons in summary and then say a little about them. The first reason is that an advance agreement is neither sufficient nor necessary for the effective exercise of the power and the Court would not apply the limit on any ground of necessity.

The second reason is that the limit may in fact only serve to prolong detention and/or to strangle the power. I will come back to explain why that is. The third reason is that the limit is not necessary to avoid unconstrained discretion, and the Court will apprehend where I am going on that point from what I have said so far. The fourth reason is that the implied limit sits very uneasily with the rest of the Act, including the places where the Act has made agreement and express limit on power, it does not sit well with it.

Now, could I try and expand upon those points? First, the question of necessity and sufficiency of prior agreement - if your Honours go to the special case at paragraph 20(b) we see that in the present case, for instance, there were a range of variables which would have impacted upon an effective discharge in India. They included the weather conditions, which would have a safety aspect. They included diplomatic negotiations at the highest level and they included steps involved in travel and reprovisioning and the like.

FRENCH CJ: How does that work, that last reference?

MR GLEESON: Travel and - - -

FRENCH CJ: Reprovisioning.

MR GLEESON: Supplies. The ship needing to pull into other places to take on fuel and food and water while one was completing the overall exercise. Now, I only go to that to illustrate that there are a range of variables, and these would not necessary be all of them, which will bear upon the effectiveness of a taking and the time a taking will take.

If you have an advance agreement on reception or discharge, obviously all the better as in you are more comfortable that one aspect of your enterprise is likely to be successful; comfortable only because any agreement is only as good as what happens when the critical time comes for performance. Any agreement may be conditional.

Now, that is a point that Mr Merkel has not really offered you a submission on what sort of agreement he contemplates. Is it an agreement binding in international law with the status of a treaty where you can sue in a relevant forum? Is it a memorandum of understanding about which we know a great deal of diplomatic discourse occurs where parties do not have strictly legally binding obligations but rest in the confidence of likely performance? Is the agreement absolute or is it conditional?

Now, that really is a problem because one can think that in the real world if one is making an agreement with another country in advance to receive people – and I will take your Honour Justice Crennan’s example of non-nationals of that country – it is highly likely that any country, even if it were willing to receive people, would want to know about matters such as health, safety, identity and, indeed, connection with that country.

For example, a country might say, “We would be willing to take back non-nationals who have resided in our country for, say, 12 months or more, plus their children, subject to being satisfied there is no health or safety issue”. So that agreement, even if one could achieve that in advance, would have a range of conditions attached to it.

Let me take that a step further. The country may well say, “Although that’s my general position, before I allow your vessel to disembark I would like my health and sanitary officers to board your vessel if you are willing so I can conduct my investigations to satisfy myself the people you are offloading do have the characteristics that I am prepared to accept”. So that would be an agreement not only with conditions, but where the receiving country would only perform the agreement if Australia gave access to the vessel prior to the point of disembarking it. So what all of that - -

HAYNE J: What, submit to ordinary Customs procedures? Submit to ordinary Customs and immigration procedures which every passenger vessel has always submitted itself to.

MR GLEESON: No doubt a range of possibilities, your Honour; a range of possibilities. Where we are in the area of the dealings between Australia and another country and there are a range of conditions which another country might reasonably wish to impose in order to accept people, we are in the area where the implication of the limit becomes, I would submit – and I hope this is not hyperbole – becomes precarious.

HAYNE J: Well, let us understand what the limit is. We begin with the words. The power is to take to a place. Is that right?

MR GLEESON: Yes.

HAYNE J: A place outside Australia?

MR GLEESON: Well, it is a bifurcated power to take here or there, yes.

HAYNE J: Relevantly in the relevant operation with which we are concerned, it is a power to take to a place outside Australia. Is that right?

MR GLEESON: Without being difficult, I will not accept that, your Honour, in this sense, that at the heart of this power is choice. It is choice between Australia and another place, and if one leaves out of it that a choice is to be made, one may already have narrowed the focus a little too far. Subject to that, if one is looking at a place outside Australia as an alternative to Australia, I agree.

HAYNE J: How do you take someone to a place outside Australia, for example India, without the person alighting in India?

MR GLEESON: Without wishing to interrogate your Honour, is your Honour asking me generally or on the facts of this case because there is a difference?

HAYNE J: I am starting with the words of the Act. The words of the Act are relevantly to take “to a place . . . outside Australia”. I am suggesting to you that the words to take “to a place . . . outside Australia” carry within them – not as a matter of implication but carry within them, take to a place in the sense of take and leave at a place. Taking to a place, you cannot say I take you to the MCG if I get to the bounds of Yarra Park and do not enter. To take to a place means to take and leave. How can there be a taking to a place if you cannot leave them there?

MR GLEESON: Well, there are a couple of aspects to that. Remember Mr Merkel’s limit; his limit is you must at the time you start on the exercise of power, you must have an agreement from the receiving country that they will accept the person. The submissions I am currently putting are seeking to attack that from a number of angles because what may happen is that to the extent you do need agreement for the person to alight, an effective agreement, you may achieve the agreement on the way.

It may only be after the occasion has arisen of a particular group of people that the critical need for the agreement becomes evident, and the matters of conditionality that I have dealt with, which are real world practical matters, they are matters which may well only be able to be dealt with, as it were, on the way when the occasion has arisen. The logic of Mr Merkel’s argument is that Australia cannot choose any place other than Australia unless we have successfully anticipated in advance every possible country where we may need to seek to take people, we have reached an agreement in advance with those countries and we have eliminated all conditionality in advance as to whether to take the persons.

That is why on one of my following submissions I would like to put that if that is what the limit involves, the limit either will prolong detention or will strangle the power. It will prolong detention in the sense that, with a boatload of 153 people, before Australia can commence any exercise of power it has to ascertain what are the circumstances of each of those persons? Do each of those persons trigger a relevant unconditional agreement such that the Commonwealth has that degree of assurance that they will be able to be alighted at the other end?

Then what happens if people on the boat are in different positions? The way the limit is propounded, it is a limit per person. You cannot take any person, you cannot exercise the compulsory power over any person unless you have in respect to that person the agreement, and that would seem to suggest that you have to then ascertain in respect to 153 people do I have the relevant binding agreement which will allow me to alight them at the other end.

So that part of my answer is, even assuming an agreement at the other end is something you need at the point of discharge why does the limit become that you must have the agreement at the point the taking commences, why is not the answer that legal reasonableness in sections 31 and 32 govern these questions? So even if an agreement is something you will need at the other end that does not mean you do need it at the beginning. Conversely, if you have it at the beginning it is only as good as whether it is performed at the end. If it has conditions it is only as good as whether the conditions are satisfied.

Then, finally to take your Honour’s MCG example - and that is why I said questions such as acquiescence and the like are not in this case - in an appropriate case it would be necessary to consider whether effective discharge can be done by means other than agreement, acquiescence, an established doctrine of international law is one example of that, namely, I say in advance, this is the sort of thing I intend to do, you do not receive a sufficiently vigorous punch in the face and you go ahead and do it. I hope you will forgive the crudeness, but acquiescence involves questions short of agreement where one says, this is my position, if you do not sufficiently rebuff me I will go ahead and do it. So that is a means other than agreement by which you can alight a person, and it would not be limited solely to acquiescence.

To take your Honour’s MCG example, if your Honour was in a car and drove a young child and left the car, left the child, 50 metres from the MCG with appropriate instructions and directions as to which way to walk to enter the MCG, as a matter of ordinary language you might say you took the child to the MCG, you did not deposit the child through the turnstile of the MCG, so to take an example which is not this case, but let us assume an example of an on water transfer of persons outside the territorial sea of another country, not this case, let us assume such an example. The conditions of an on water transfer may be a means by which a person is taken to another country.

HAYNE J: So the Commonwealth ship or the maritime officer has taken the person to that place?

MR GLEESON: Yes.

HAYNE J: The place being a country, nominated country?

MR GLEESON: Well, there are possibilities, a place could be a geographical coordinate, a place could be a vessel.

HAYNE J: Well, there is the point, is it not, Mr Solicitor? Can a place in this Act be a bare pair of coordinates on the surface of the earth?

MR GLEESON: Well, with respect to the Court, is it not the issue in this case.

HAYNE J: I understand that, but your submission is that “place” is to be read in that way, is it?

MR GLEESON: My submission is that in an appropriate case it would be available to read “place” firstly as including a vessel, a vessel, by definition, always being in a place, and in an appropriate case it would be an available submission, proper to be put and to be considered, that “a place” could include geographical coordinates.

BELL J: Mr Solicitor, bearing in mind your emphasis on the flexible circumstances in which the power may be exercised, including the differing monitoring acts that may attract its exercise, and bearing in mind that, commonly enough, persons who are detained may be taken to the place of their nationality which has an obligation to accept them, and bearing in mind the bifurcated nature of the power, and that a person who is brought within Australia may then under the power be removed from Australia, why would one not read the power to take as necessarily embracing the idea of taking to a place at which the person can be disembarked?

I understand your reservation about it not being this case, but as a matter of construction, when one looks at the fact that one has a choice, the fact that in some instances there will always be a place to which the person can be taken uncontroversially, why would one not read it in the way that I suggest?

MR GLEESON: Well, it is really the last part of your Honour’s question, a place to which they can be embarked. It is whether one is saying, you must have, as it were, certainty at the time you commenced the taking that it will be effective with, at the opposite end, your Honour the Chief Justice’s question, whether a purely speculative taking would be permissible - and I have made a concession on that - or whether within the flexibility there is room to take steps along the way which may be relevant to the achievability of that place.

What this case essentially comes down to is, Australia was an option under (a), we know that. But for the question of non-refoulement, Sri Lanka may have been an obvious place to take the people. Apart from Sri Lanka, there is no other country which has held itself out in the world as indicating a general willingness to take Sri Lankan Tamils who have chosen to leave India.

India is a fairly obvious place in a sense, to seek to return them. It is a place where they apparently were resident and so at the time that enterprise commences, it could not be regarded as purely speculative in nature. It could not be regarded as certain in nature, but really we would urge the Court not to read in a limit that at the time you commenced the exercise of the power you must be certain of your ability to achieve it. There is a point at which it will be too speculative.

Certainty, as I have been trying to indicate, is probably never available in that but for the country of origin, the prospect of other countries taking them will usually have contingencies and conditions attached to them at best, so one is never likely to be in the area of complete certainty. Even if you - - -

BELL J: Save for persons who are to be returned to their country of origin.

MR GLEESON: Yes, and so if one is looking at this practically, Australia, well that is available, the country of origin, prima facie available through one framework but potentially not because of non-refoulement, is the power then over? If that be right, what it effectively means is in a context of people who claim asylum, the power is reduced to Australia, or is it a power which, within the limits I have sought to recognise, reasonable time and reasonable connection with your motivating authorisation, you can take steps along the way which will grapple with any and all of the elements necessary for an effective taking and that is where seem to differ. Mr Merkel says, well, if you have got an agreement in advance - he does not say how you could get it in watertight terms - then you can start the taking, otherwise you cannot.

FRENCH CJ: That notion of reasonable connection with the authorisation, does that really pick up the requirement of proportionate exercise of a purposive power that it is reasonable and appropriate and adapted to the purpose for which the power is conferred?

MR GLEESON: It may well do, your Honour. Let us take another example. If you have tried once to send them to a country and told no in unequivocal terms, if you choose that country a second time with no reason to think their position would be difficult you will probably fail on those connections, but really it comes down to, must you have relative certainty - there is no perfect certainty in the world - must you have relative certainty before you commence the power and alternatively, is it governed by the two limits I have mentioned?

We would urge your Honours not to read this power as you may take them only to a place where, at the time you commenced the power, you have absolute or relative certainty that every condition will be met which will enable you to take them there. One of the points made in the explanatory memorandum is that the place may need to change in the course of the journey and perhaps this case raises whether that appreciation of the Act is correct. Your Honours will find that in the revised explanatory memorandum, in particular, at page 50 in the second-last paragraph. This is within section 69(3):

A ‘place’ . . . refers to the ultimate destination that the maritime officer has in mind (even if this may change on the journey), rather than any stopover points –

The same point is made at the bottom of page 51 in respect to clause 72, and that, we would submit, is an accurate appreciation that there need not be absolute certainty at the time the journey commences at the place. There is a possibility of the place changing and that what occurred in this case factually is within the ambit of the power, namely attempts were taken - no one suggests they were not bona fide - to achieve what was probably the most obvious destination other than Sri Lanka or Australia. Within a reasonable time they could not be completed and the vessel was then taken post haste to Australia.

That, we would submit, is the very working out of the scheme with a proper attention to its limits. As to the question of the reasonableness of the limits, that is in the explanatory memorandum at page 33 at the end of the comment in relation to clause 31:

The words ‘in accordance with’ signify that the powers used must reasonably be for the purpose of discharging the particular authorisation.

KIEFEL J: Mr Solicitor, do we take you to reiterate in this connection what you said yesterday about how the point of distinction that you made that where there might be no general rule or limit on a power there may yet be a consideration which ought to be taken into account given various differential circumstances that might be prevailing at the time, for instance, you might attempt to take a person to a particular place without an agreement to disembark them if there was an emergency and you were hoping that the country would take them.

MR GLEESON: Yes, and indeed that, for instance, that situation would be contemplated by section 40(e) where - - -

KIEFEL J: I take it that the point you were making yesterday was that considerations of that kind might then give rise to questions about unreasonableness of the decision to take in a legal sense but that is not an issue which arises on the special case.

MR GLEESON: Yes, that is our argument.

GAGELER J: Mr Solicitor, can I raise perhaps a very tedious question about the interaction of sections 71, 72 and 74? If the plaintiff had been taken off the ship and placed on land in India, would that have been an exercise of the section 72(4) power to take, or would it have been an exercise of the section 71 power to place on land, and the second part of the question is what role would section 74 have had in the exercise of that power?

MR GLEESON: As to the first, it is probably the latter. It is probably a section 71 exercise. The taking allows you to present the person at the place and that might be, for instance, if the vessel is allowed to disembark to open the gangplank where the person will be met by the Indian authorities. Now, at the point the persons are invited to leave the vessel, assuming they leave voluntarily, your taking has ended at that point. If you sought to compulsorily place them in India, that is to take them down the gangplank and put them on the land against their will, you will probably be triggering a section 71 step. But you may simply complete your taking through the stage of presentation and then - - -

HAYNE J: How does section 97 bear upon the answers you have just given to Justice Gageler?

MR GLEESON: So the detention ends at the place where you are taken, so they may be fine distinctions but if you are taken and presented to the authorities of the other country, your detention ends at the point that that presentation occurs. I was only seeking to deal with the case of what of the person who refuses to leave the gangplank and if force has to be applied to complete the exercise and you pick the person up physically and you put them on the wharf, that would seem to be a triggering of section 71 because you had exercised a further step. You have actually put them in a place.

GAGELER J: Now, could you do that?

MR GLEESON: Could your Honour just give me one moment?

GAGELER J: Yes.

MR GLEESON: Let me just go back a step with section 71, and I need to refer to section 75(5)(c). For the purpose of taking the person to India, you may place them on a vessel, restrain them, you then may remove them from the vessel.

HAYNE J: Section 72(5)(c).

MR GLEESON: Yes, I am sorry, your Honour. So 72(5)(c) more directly deals with the situation I am contemplating. You physically remove them from the vessel and that completes the taking. So that is one thing I need to add. Going back and looking at section 71 – and I think this came up yesterday in a question – 71 says if you are exercising powers in relation to a vessel, you may place or keep the person in a particular place on the vessel. So that is the vessel that you are exercising powers over, so 71 would not allow you here to do the placing on the territory of India. You would do it under section 72(5).

I think the other aspect to the question concerned section 74 - where does it come into the picture? Can I take up one matter Justice Keane raised about that yesterday? Section 74 is an obligation that cuts in at the placing stage. It does not cut in at the earlier stage of the commencement of the taking of a person. It is about what happens when you actually do the placing, and that seems to contemplate the situation where the person is under your detention and under your control, and it requires you to make sure it is a safe place.

So that is particularly apt. If you are exercising powers to put a person a vessel you must make sure the vessel is safe and if you are removing the person from the vessel, presumably you have to make sure it is a safe removal, they do not drown as they leave the vessel. But we would submit that section 74 is not a power about the conditions that are likely to apply in the future at a place to which you have successfully taken a person. For that reason, section 74 is not a conduit to read in non-refoulement when we come to that question.

HAYNE J: Does section 97 speak at all to whether the place must be identified at the time of first exercise or can change during the course of exercise of the power to take?

MR GLEESON: It certainly tells you under 97(2)(a) that you can be taken to different places on the way to another place, but that does not quite deal with the matter your Honour has raised. That allows for intermediate destinations.

HAYNE J: Well, to the other place.

MR GLEESON: Yes.

HAYNE J: Section 97(2)(a) might suggest the other place is a determinate idea, singular in nature, but does it or does it not?

MR GLEESON: It certainly conveys determinate in the sense of I am identifying a destination which governs the whole of my enterprise. What it does not do, we would submit, is prevent the power being exercised in respect to more than one destination should that be appropriate, and one can readily think of cases where a vessel is intercepted. It may not be in the contiguous zone - it may be a very, very long distance from Australia - and the persons are detained and a plan has to be made as to where to take them, and the plan might be in the first instance, “We have limited supplies. We will simply have to take them to the nearest available port for refuelling”, and that would be a valid exercise of the 72(4) power.

What is not precluded is the possibility that that plan might have to change. For instance, let us assume the refuelling problem is overcome by a supply ship so the immediate need to dock has gone. The captain might then be able to say, “Well, now my options are more open, what is the appropriate place to take these persons?” That decision to change the point of destination, we would submit, is not precluded by the Act. Provided it is within a reasonable time and it is in a reasonable response under section 31 and 32 that is the very flexibility that the Act might contemplate.

That might well indicate another reason why to read in the implied limit would strangle the Act because the master may say “with the fuel I have at the moment the only place I can get to is X”, and the master might say “I have a very large number of people overcrowding a boat and it is simply not safe to take that boat immediately to Australia so my immediate destination is X. Do I have an agreement from X? No, I do not have an agreement from X. Do I think that there is a good chance that X might receive me?”

I may well think that because I mentioned to your Honour Justice Kiefel section 40(e), that in the case where you seek to exercise your powers within someone else’s country - and that includes within their territorial zone - while their request or agreement is one and perhaps the most obvious way of exercising powers is not the only way, and you can exercise the powers to ensure the safety of maritime officers or persons, so in the distress or immediate urgency situation you can go to that other country without advance request or agreement and you seek to secure agreement or acquiescence or performance of that country’s international obligations at the time you arrive.

So in this series of points I am making about why you would not read in this limit, the next one I was going to come to was that where the Act does limit the power by request or agreement, it does so expressly and it is unlikely that the Act would have intended to limit the power in 72(4) by implication when it has not gone through the task of saying request or agreement is a condition on power.

CRENNAN J: May I just ask you something and it might be rather obtuse on my part. I know that detention is an agreed fact under the special case for the purposes of section 72(4), but when one looks at 72(1)(a):

This section applies to a person:

(a) on a detained vessel –

and as I understand the special case, the taking decision occurs on the Australian vessel, how does that all fit?

MR GLEESON: If your Honour is asking me about how the statute governs the transfer - - -

CRENNAN J: Well, there seems to be a limit in relation to section 72. I know in the special case there is an agreed fact for the purposes of subsection (4) and I suppose I am raising a query about what is expressly provided in subsection (1)(a).

MR GLEESON: Well, let me offer this: (1)(a) and (b) are the gateways into this section, this group of powers, and in the present case because we have a vessel detained any person who - - -

CRENNAN J: But the vessel was sinking, was it not, and there is a rescue – I know you do not seem to like me using that word – but the persons were transferred across to an Australian vessel.

MR GLEESON: Yes. So at that point of the transfer they are persons governed by 72(1)(a) or (1)(b). They are on the detained vessel. The unseaworthy vessel has been detained.

CRENNAN J: The force of the “was” in (b).

MR GLEESON: In (b) or they were on that vessel. So it is their connection at that temporal point with a detained vessel which has triggered the whole of this little group of coercive powers and then - - -

CRENNAN J: Yes. So it does not matter when you think about the force of the “was” in (b) that the taking decision occurs on the Australian vessel?

MR GLEESON: That does not matter because - - -

CRENNAN J: Yes. No, I see that now.

MR GLEESON: Yes. There are then really different pathways. If the vessel remains seaworthy and otherwise can be towed or navigated somewhere then what you might do under 72(2) is if you have taken the persons off once you have repaired the vessel you might put them back on the vessel and then you might detain them under 72(3), that is, require them to remain on the vessel - you have all those powers - and then, under 69(2) you would take that vessel or require it to be taken to a port, and that would raise all the same issues as we are dealing with in this case because it is a compulsory coercive taking of persons, in this case on the original vessel, to a port. The flexibility that I am arguing for would allow for the captain to make, if appropriate, more than one decision which may be revisited over time, as to what am I to do with this vessel and these persons.

So I was just going to indicate then, your Honours, that where the Act does condition power on agreement it says so expressly and it governs the type of agreement. Your Honours see that in at least these places: in section 40(a) the most obvious way in which you can exercise the powers within the territory of another country is by request or agreement. Under 41(1)(j) one of the bases upon which you can exercise power over a foreign vessel between Australia and another country is with the request or agreement of the flag country, and in section 44(c), certain powers over foreign aircraft can be exercised at the request or “agreement of the country of the aircraft’s nationality”.

Then, recognising that we need to know what sort of request or agreement, section 48 tells you the answer as to what type of request or agreement is appropriate and it indicates the types of persons who can be regarded as having had authority to bind their country. So the submission is that where the Act intends request or agreement to be a limit on power it tells you expressly and it tells you what sort of request or agreement and it is therefore unlikely that the Act, through the general words of section 72(4), intended to place a limit on the places under (b) by reference to request or agreement, let alone Mr Merkel’s case, a request or agreement you must have before you start to exercise the power.

I think your Honours now have our related submission that the limit is not necessary to avoid unconstrained discretion because of the limits of reasonable time, legal reasonableness under sections 31 and 32, and the matter raised by your Honour Justice Gageler that the authorisation must remain in force at the relevant time. That in turn may be the subject of judicial review in the sense that if the occasion for an authorisation to be revoked was not legally dealt with, there may be a question of judicial review in respect to that matter.

GAGELER J: In the present case, I do not think there is any agreed fact as to the authorisation having itself a finite term.

MR GLEESON: That is right.

GAGELER J: So it is section 23(1)(b), I think, that would apply.

MR GLEESON: Well, yes, on the facts it was neither spent nor lapsed because when they conducted the boarding they found the suspected contravention was a suspected contravention, so it continued in force. On other facts, the authorisation might have come to an end if on the boarding there was no apparent contravention.

Your Honours, that is what I wanted to put on points 3 and 4 of our outline, which brings me to the question of the second limit, which is the question (1)(a) limit, and I briefly touched yesterday on precisely the question which the plaintiff wants the Court to decide and the question is framed in terms of whether by the law applicable in India the person has the benefit of the non-refoulement obligations which are defined to be the obligations under three international sources.

We understand the plaintiff intends that question to refer to the domestic law of India and the distinction the plaintiff is seeking to draw is that, even though India has non-refoulement obligations under Article 7 of the ICCPR, nevertheless it is a place subtracted from the available places under section 72(4)(b) because of the absence, it is said, of incorporation into that domestic law of India of the non-refoulement obligations.

Your Honours, there is one matter I ought to observe just so the point does not pass without – or by concession, as it were. It may be the plaintiff is impliedly asking the Court to find – I am not sure – that Indian domestic law contains no reflection of its ICCPR obligation. If that is part of the plaintiff’s case, we would ask the Court firstly to note that there is a body of authority in India which would be inconsistent with that proposition and, secondly, it would not be appropriate for the Court in this case to make findings on the sparse material that has been offered as to what is in or not in the domestic law of India, particularly since that would be such a significant mater for this Court to make findings about the highest law of the country of India.

So I am hopeful the Court will simply note my reservation and urgings not to decide this matter. The reason that I put to your Honours that there is material to suggest that India may in fact have implemented its international obligations into domestic law is this: we have a short bundle of photocopied material which I would seek to hand up. I can tell your Honours in a nutshell what it adds up to. What it adds up to is that India, like Australia, has a dualist system of law. The ICCPR is not automatically incorporated into the domestic law. However, the Indian Constitution - - -

FRENCH CJ: That came into existence about the same time as the universal declaration, I think, did it not?

MR GLEESON: Yes, yes. The Indian Constitution which your Honours would see at tab 1, contains - - -

FRENCH CJ: A very abbreviated version, I think it is the longest Constitution in the world.

MR GLEESON: Yes, I am guilty of many sins, your Honour, but this one I have avoided. We have included only the provisions on the fundamental rights, including relevantly Article 21:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

We have then included, and I apologise it is the best copy we could find, it is a decision from the High Court of Gujurat which is the highest court of that State from which appeals are brought only to the Supreme Court, in the matter of Habib Al Qutaifi v Union of India (1999) Cri LJ 919 and that is a case where you will see that that court held that Article 21 embodied into domestic law the ICCPR and restrained refoulement of persons who claim to have good protection claims in another country.

The principle of non-refoulement, the discussion commences at paragraph 18, it is a principle of international law, Article 33 of the Convention and the method of incorporation, in paragraph 19(3), (4), (5) and (6), involves Article 21 being interpreted consistently with the ICCPR. We found one decision at tab 3 from the Supreme Court of India, the National Human Rights Commission v State of Arunachal Pradesh (1999) AIR 1234 and [1995] INSC 795; (1996) SCC 1 at 742. That case drew on a number of constitutional provisions in a non-refoulement situation and your Honours will pick up at page 7 of this reprint in the last paragraph, a reference to the Rule of Law, the Constitution, Article 21 and it then says this:

Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so.

The State is:

duty bound to protect the threatened group from such as assaults –

and that lead to certain injunctions being given against the State of Arunachal Pradesh. The final tab 4, although we only have the order, that is a direct case where the Supreme Court made an order preventing persons being refouled to Burma, persons who claimed they might face persecution in Burma. Now, this material is a little late, but I thought it better that I draw your Honours’ attention to it than not in order to indicate that there is at least a strong basis for thinking that India not only has international obligations in this area but has brought them into its domestic law via its Constitution.

GAGELER J: Are you asking us to make a finding of fact as to the content of domestic law in India?

MR GLEESON: No, I am doing something less than that. I am drawing your Honours’ attention to these authorities on the basis that the Court should not make any finding or act upon implied concession that India’s domestic law does not implement non-refoulement obligations. For the Court to go beyond that would require there to be a fuller opportunity for materials and argument. I am simply trying to close off an implied but apparently inaccurate concession about the law of India.

GAGELER J: Where does that leave question (1)(a)?

MR GLEESON: Well, it leaves (1)(a) in this position. Our primary answers to (1)(a) are those we have already outlined, namely, even if 72(4) is governed by our non-refoulement obligations at international law, those obligations depend upon whether there is effective protection under the law of India as a matter of fact and, in answering the question of effective protection, it is not determinative one way or the other whether the domestic law of India implements non-refoulement obligations. Whether the domestic law implements it may prove too little or it may prove too much. Even if it is in the domestic law, what matters is what happens in fact, and even if it is not in domestic law, it may be that in fact non-refoulement is respected. That is our primary argument, in which event the Court would answer (1)(a), yes, without any further inquiries.

KIEFEL J: On your approach we are effectively saying it is not a proper question. It is not directed to a relevant inquiry.

MR GLEESON: It is where I end up, yes, because - - -

KIEFEL J: Another approach from what you have said about the fact about Indian domestic law might be that in the absence of a fact stated as to what Indian domestic law is, no conclusion is possible, so it cannot be answered.

MR GLEESON: Yes, and if we have contributed to an inadequate question, I apologise, but what we understood Mr Merkel to be tendering is his two-step proposition. The first is the implicit step which is not in the question, namely, the power is governed by Australia’s obligations, and then his critical step, which is his second one, Australia’s obligations are measured by, and by only, what you find in the domestic law of India. Provided I can show that the second step does not follow from the first, he loses on the question he has asked the Court to decide. In that sense the Court is answering a question that the party has asked to be posed, that the Commonwealth has submitted to having posed, and he just fails on his question.

CRENNAN J: It is a bit like not discharging a burden of proof.

MR GLEESON: Yes, because one thing that will be obvious from yesterday, Mr Merkel’s only route to getting success on question (1)(a) is to say my intermediate step is Australia’s international non-refoulement obligations can only be measured against the domestic law applicable in India. He has not otherwise put some argument to you which would be a very bizarre argument that a power in an Australian statute which is simply in general terms is impliedly governed by what happens to be the domestic law of a foreign country from time to time, let alone a power which a maritime officer is meant to exercise on the seas in difficult circumstances.

How the maritime officer is meant to come to a considered view on the domestic law of India is quite difficult to fathom and we immediately draw the contrast, of course, where in M70 where the statute expressly said the Minister must make a decision about these types of questions and the Court interpreted the statute as meaning the Minister was required to turn his or her attention not only to conditions in the other country but to legal protections in that country, so that is the ruling of the Court in the context of an express statutory provision where one has a Minister who presumably has the luxury of time and information to make a considered decision.

But here Mr Merkel’s argument has, as I say, this bizarre consequence that the maritime officer on the sea is meant to be able to form a view on the domestic law of another country. Now, that, the Court would not adopt. So given he does not really argue for that position, he has his primary position which is Australia’s international obligations in this area are measured and measured only by the domestic law of the other country.

So the only matter I need to put to your Honours further to deal with that is simply to take the Court, if I may, to the existing authorities which Mr Merkel, I believe, has gone to none of which directly reject his proposition. So could I ask the Court to go first to your Honour the Chief Justice’s decision in the Federal Court in Patto.

FRENCH CJ: Just before we do, if one were to generalise (1)(a) from the characteristics of the plaintiff, it would be whether the power authorises a maritime officer to detain a person, invoking Australia’s protection obligations under the Refugees Convention for the purpose, et cetera. Is that the legal question that is thrown up by (1)(a) – the plaintiff being a person in that category?

MR GLEESON: Yes, that is implicit in it. That a plaintiff, being a person who has sought to invoke - - -

FRENCH CJ: He has not actually invoked it at the time on the agreed facts because he has not been asked any questions.

MR GLEESON: No, a person who would be in a position to invoke those obligations, is it then the case that the limit on the power is measured by the extent to which the domestic law of that other country contains a reflex of Australia’s obligation.

FRENCH CJ: I mean, to answer the question (1), we do have to extract the relevant attributes of the plaintiff.

MR GLEESON: Yes, there is no difficulty with that, but it is the narrowing down to even assuming he has or could make a claim and accepting our international obligations and our domestic implementation of them, does the Maritime Powers Act say you cannot choose a place unless under its domestic law one finds the reflex of the three treaties which Australia has signed? And, in effect, what the plaintiff is saying is any person who is in a country which may have signed at least one international non-refoulement obligation can prevent being taken back to that very country on the ground, as it were, that the domestic law is not as complete in its reflection of those obligations as Australian law, in which event, Australia becomes the place of choice for persons who otherwise may have perfectly effective protection against non-refoulement only on the basis that we have signed three treaties and not one and only on the basis that under our dualist system we may have taken further steps in domestic law than the other country may have had.

If that is what the plaintiff is seeking to raise, it has very large implications for people seeking to come to Australia. I think Mr Merkel might have handed up or offered to hand up a summary of which countries around the world have signed which of these treaties and unsurprisingly there is a varied position. But it seems to be the end point of his logic is as long as you leave from a country which does not have in domestic law a perfect reflection of Australia’s non-refoulement obligations, then when you get caught on the vessel coming to Australia without permission, you say, sorry, must be taken to Australia.

GAGELER J: Mr Solicitor, can I ask really a positive question? If the power under section 72(4) is constrained by Australia’s non-refoulement obligation under Article 33 of the Refugee Convention - - -

MR GLEESON: Which we do not accept but that is another point.

GAGELER J: What then would be the constraint as to the place that a person could be taken?

MR GLEESON: If that were the constraint which on the next of our argument we say it is not, if that were the constraint then we would be saying our domestic law power has been constrained by the ambit of our international obligations.

GAGELER J: I follow that.

MR GLEESON: In the case of chain refoulement, if that being the only possible issue, the constraint would be does the person have effective protection, in fact, in the place of destination against that risk of chain refoulement.

GAGELER J: So its entitlement under the law of that place plus effective enforcement of that entitlement, is it not?

MR GLEESON: No, on our case it would simply be – that is why I want to come to the authorities, Patto and the like, a question of fact, is there effective protection in that place? As your Honour the Chief Justice said in Patto v Minister [2000] FCA 1554; (2000) 106 FCR 119 – if I could go to that to try to answer the question – at page 131, paragraphs 36 to 37, the question is whether:

A right of residence in a third country is not a condition of its characterisation as a safe third country if it be a party to the Convention which will honour its obligations thereunder. Nor is it necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person.

Then your Honour followed what was said in Al-Sallal in the Full Federal Court, in turn adopting Justice Emmett in Al-Zafiry, and I quote:

“ . . . so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice.”

Then returning to your Honour -

The question therefore whether the third county is a party to the Convention “is relevant, but not determinative either way” –

Then coming down to the three propositions, the third is -

Return of the person to a third country will not contravene Art 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason.

So if you qualified the power by our international obligations under Article 33, which we would argue you should not, then they would be satisfied by this type of inquiry, and in carrying out this inquiry, the domestic law of the other country would be relevant but not determinative.

GAGELER J: Necessary?

MR GLEESON: No, not necessary.

GAGELER J: Would an entitlement under the law of that country be necessary?

MR GLEESON: Not necessary at all, because one of the points made in the Patto, Al-Sallal, Al-Zafiry line of cases is that there are countries which, irrespective of what is in their domestic law, that is, they have nothing in the domestic law, they in fact do not engage in chain refoulement.

CRENNAN J: And permit people to live and enter.

MR GLEESON: And permit people to live and enter, and that is why there is absolutely no factual assertion by this person that anything has occurred or is likely to occur to him whereby, in India, he may face chain refoulement to Sri Lanka. So that is the very point being established through this line of cases. Some countries will have signed up to international obligations, some will have relevant obligations in domestic law, some will not have it in domestic law but do the right thing anyway, and the inquiry is a practical one into effective protection in fact, and so even if one went down that line one does not get to a favourable answer to question (1)(a) nor to any relief for the plaintiff because he does not assert a lack of effective protection in India.

HAYNE J: Why does one not get to a favourable answer to (1)(a) when the question is framed in terms of whether or not, that is, the question is framed in terms of, does 72(4) authorise certain steps regardless of whether, is it not? Is that not the effect of it?

MR GLEESON: My submission is that what (1)(a) tenders is, is it a limit on power that a person who may be claiming these types of protections does or does not have under the domestic law of that country protection against non-refoulement? Is that a limit on power that Mr Merkel has successfully teased out by implication? If it is not, then there may be other limits on power, but he has not asked the Court to decide them, and he quite certainly has not asked the Court to decide that the limit on power is the one Justice Gageler asked me about, namely, is 72(4) limited by Australia’s non-refoulement obligations, and he certainly has not asked the Court to decide that there is any lack of effective protection in India. Were he to go down that path, he would have to grapple with the legal and factual conditions of India about which he is completely silent.

CRENNAN J: He has raised a question of a risk of indirect refoulement, I think is the way he put it, that is, that there is a risk in India even though he accepts that there is no risk of refoulement to Sri Lanka. That is to say, he has made a distinction between – of risks.

MR GLEESON: Well, he is certainly not saying in India - - -

CRENNAN J: There is a frank risk, or a clear risk, of refoulement in relation to Sri Lanka and, as I understood it, he was putting it on the basis that there is an indirect or – so not direct refoulement, but an indirect risk that at some point in time they may be refouled from India. I may be wrong, but that was how he was saying refoulement is relevant, even though an undertaking has been given that there will be no refoulement to Sri Lanka.

MR GLEESON: Well, we may - - -

CRENNAN J: It is the third element that was picked up in the Patto three elements.

MR GLEESON: Yes.

FRENCH CJ: Well, you say the question does not exclude – sorry, does not cover the case in which Australia, consistently with its non-refoulement obligation, may deliver someone to a country which does not have a non-refoulement obligation but provides effective protection nevertheless.

MR GLEESON: Yes, we say that, and if somehow that is what the question is tendered to decide, we would ask the Court to decide that the Patto line of cases are correct and that - - -

CRENNAN J: And that we should answer question (1)(a) yes.

MR GLEESON: Yes, and because of the Patto line of cases, the only way a person could have a complaint in this area is if they wanted to take on the burden of saying, “If sent back to India I face a real risk that I will be refouled to Sri Lanka”, and he does not take on that burden in fact. So that is one means by which the whole of question (1)(a) is cut off. If I can give your Honours the references to the other cases just for the transcript, Minister for Immigration v Al-Sallal [1999] FCA 1332; 94 FCR 549, and Justice Emmett in Al-Zafiry v The Minister is only recorded as [1999] FCA 443.

For the avoidance of doubt then can I deal with the intermediate step of Mr Merkel that you should find that the power under section 74 is constrained by Australia’s non-refoulement obligations under Article 33, that is, irrespective of the fact that there is no suggestion in this case that Australia would have sent the plaintiff back to Sri Lanka and no suggestion in fact that India would have chain refouled him, but if that larger issue is something the Court considers is necessary or appropriate to decide, can I respond to that part of the case? The most convenient way might be to ask your Honour to go to the plaintiff’s written submissions, paragraphs 59 to 64, and respond to them seriatim.

HAYNE J: Sorry, what paragraph?

MR GLEESON: Paragraphs 59 to 64. So the first proposition in 59 is that you can deduce from section 7, section 95 and from provisions such as section 41 a positive intention that the Act – that is, the whole of the Act:

be construed . . . in accordance with Australia’s international legal obligations.

Our answer to that is that those sections indicate that the Act has drawn in one, and possibly one other, international obligation, but not drawn in international obligations generally. Section 7 and provisions like section 41, as I have explained, seek to match the principles of international jurisdiction under UNCLOS, but go no further in terms of drawing in the whole body of international law. Section 95, if the Court has that, one might say draws a partial inspiration from Article 7 of the ICCPR and from the Convention Against Torture, but for a particular and defined purpose, namely that during the period that the person is subject to the coercive constraints of the Act, they:

must be treated with humanity and . . . dignity –

and so on. That is not a drawing into the Act of Article 7 for all purposes. It is a particular reflection of an aspect of it. It is for a particular period of time; what happens when I have coercive control over persons. It does not draw in international obligations generally; it does not draw in non-refoulement.

Now, if your Honours go over to the end of paragraph 59, some reliance is placed on Article 74. Our first answer to that is the construction answer I have given as to precisely the point in the process at which it applies, but more generally, Mr Merkel is, with respect, wrong to say that this is somehow a drawing into the Act of the Safety and Rescue Convention. If the Court has the note that he handed up yesterday, as Justice Bell’s questions raised, this is as its name appears, the Search and Rescue Convention. It is applicable to that circumstance, and its critical provision, unsurprisingly, is about directing the captain to discharge the people at a place of safety in accordance with the circumstances of the case, and the guidelines of the organisations. It is all about where does the rescue operation get brought to an end.

One can see that the word “safety”, or “safe”, has a reflection in both section 74 and in this Convention, but they are not directed to the same exercise, and as your Honour’s question further raised, even to the extent one has regard to the guidelines, the guidelines treat non-refoulement as a consideration which one would bring into the mix along with all the other factors bearing on safety, so it is not a limit within this scheme, and indeed, obviously the parties to this treaty and guidelines are operating in a different universe to the non-refoulement conventions.

So you do not use section 74 as the bridge to draw in the whole international law. The second point, paragraph 60, has probably been dealt with in discussion yesterday. It would be an error to read the Migration Act and the Maritime Powers Act - I will try and avoid further metaphors - - -

FRENCH CJ: Yes.

MR GLEESON: - - - together, as if they have no other relations. Then the third matter is the so-called use of the Barcelo principle which is where one sees general provisions in a statute which may need to be read down to comply with the law of nations, then that may be an available approach. Your Honours actually see in the extract there, the quote:

‘an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law . . . is within the province –

This is not such a statute because the MPA has confined its reach by reason of provisions like section 41 in order to comply with the UNCLOS principles.

Then at paragraph 62 there is an incomplete submission that if you look at the explanatory memorandum it will tell you that the Bill is compatible with our non-refoulement obligations. Your Honours know that is incomplete because the explanatory memorandum says they will be dealt with through operational constraints, so it is a particular form of compatibility.

The fifth point I think adds nothing and the sixth point is, well, if it is possible to construe it consistent with treaty, it should prevail. Now, on my instructions, the number of treaties Australia has now signed is in excess of 2,000. I think that figure was given to the Court in an earlier case. There is a vast bulk of treaty obligations and, of course, they are rules of customary international law.

The approach of paragraph 64, we submit, should not be too enthusiastically resorted to when one looks at the Act and sees some parts of international law have been expressly drawn in and others have been left as I have put it, permissible considerations.

Your Honours, paragraph 65 is perhaps the real error in these submissions. The plaintiff urges the Court to read section 72(4) in the same way as the Court read section 198(2) in the Migration Act in the Malaysian Solution Case. That is in fact not what the plaintiff is doing. The plaintiff is trying to ask the Court to read section 72(4) as if it had in it the regional processing provisions which were in issue in that case. The express provisions are requiring us to look to the domestic law of the other country to see if it implemented protections.

KIEFEL J: I had understood the plaintiff to suggest that it should be taken that Australia’s obligations were to consider whether or not protection obligations were owed, thus bringing in the non-refoulement provisions, that is, Australia should itself assess a person, so that would have an impact upon the non-refoulement question and potentially also upon our procedural fairness.

MR GLEESON: Your Honour is correct in the sense they link to each other because if one perhaps just looks forward – in these very same submissions looks back to paragraph 27, Mr Merkel said in answer to your Honour’s question, I believe, what is the procedural fairness we are entitled to, the proposition seems to be that you have lawfully detained the people but before you can decide on any place to take them you have to notify them that you are considering taking them somewhere and then you have to give them an opportunity to be heard as to the proposed exercise of power as to the person’s claims to non-refoulement, and whether being taken to any particular place other than Australia might threaten his safety or security.

Now, Mr Merkel was, with respect, a little bit elusive about how one would discharge that obligation, he seemed to contemplate you could do it without telling them India is in the frame as a real consideration, you could somehow throw up a smorgasbord of countries and say, well, would you like to tell me anything about any place where you would like me to take you or not take you? But once one looks practically and legally at what he is contemplating here it becomes totally inconsistent with the scheme of this Act that the maritime officer first of all apparently has to hold the boat stationary because you cannot yet start your taking, prior to your taking decision you must go through this process.

You may have many, many people on the boat, there may be issues with interpreters and the like. You have to, to make this effective, foreshadow to them the places you are considering taking them. If you do not tell them that it cannot be any form of meaningful hearing, and you have to say, well, Australia is a possibility, India is a real possibility, Sri Lanka I am not sure. Then you have to allow each person to tell you whether they are making claims of any sort, protection claims, safety claims, security claims, then you have to go through some process of determining whether those claims are good or bad.

Now, generalised screening, perhaps, specific screening, perhaps, those questions are not before the Court, but you go through this entire process with, in this case, 153 people, the whole of that time the boat remains stationary, that is why I submitted that every one of the plaintiff’s limits will serve only to prolong detention. This one, the procedural fairness/non-refoulement limb turns the vessel, by law, into a floating tribunal, it is impossible to think how the time of the detention can reasonably be confined while one is supposed to go through this exercise with this person in respect to these claims. That is why the better construction solution is to say that the power is not confined by a mandatory consideration of non-refoulement, the matters are not legally excluded, it would not be an error for an officer to take them into account, but the officer is not constrained, substantively or procedurally, to engage in this type of exercise on the vessel in this circumstance.

HAYNE J: Let there be no misunderstanding about it, your submission is that 72(4) permits officers of the Commonwealth acting outside the territorial waters of Australia to permit – authorises them to take persons to a place outside Australia which would include their country of nationality, without considering whether that person or those persons are unable or unwilling to claim the diplomatic or consular protection of that country of nationality. Is that right?

MR GLEESON: The answer is yes.

HAYNE J: The issue which - - -

MR GLEESON: Noting, of course, your Honour, if I may be permitted to repeat it, that was (a) not the intention in this case, that would be an exercise of power at the limits of the exercise of power. It would only be one conducted in an extreme circumstance and it would always be governed by legal reasonableness. So the circumstances in which that exercise would be embarked in, if at all, would be the most extreme case and it would always be governed by legal reasonableness, and the type of example I have in mind which would be within power is my instance where the vessel is picked up a long way from Australia, it needs to pull into a port for refuelling and the port happens to be the country which meets your Honour’s question. That, I submit, would be not outside the power.

HAYNE J: The issue is presented by the plaintiff because Australia is a party to a relevant international instrument, or instruments rather, which comprise the Refugees Convention.

MR GLEESON: Well, at the risk of repetition, the issue presented is, is Australia constrained such that what matters is how that other country has put into its domestic law implementation of the equivalent of our obligations, and on that issue the plaintiff should fail.

HAYNE J: You say there are two immediate points to which the Court should look, what you describe as “legal reasonableness” and the fact that the existence of the international obligation and its engagement, or potential for engagement, may be, but is not necessarily, a relevant consideration which the decision-maker may take to account?

MR GLEESON: Yes, and for that purpose, decision-making could occur - - -

HAYNE J: Chain - and NSC, et cetera, the whole chain of events. I mean to encompass that within the - - -

MR GLEESON: Yes, and not just the chain of command sense, that at the stage of the authorisation which triggers this entire exercise, given that the authorisation will be very likely to lead to these sorts of powers, that is in the area where it might come.....consideration.

It could come in at the highest level of the civilian decision-making; less likely in the real world to be simply something done by the captain of the ship because the captain is exercising powers within that chain, so not preclusionary in that sense, but not mandatory.

BELL J: Mr Solicitor, can I just ask one aspect of that answer you gave a few moments ago where you posited that in an emergency it might be that the captain would determine to put into a port where - being the country of nationality in which there were fears entertained by some of the detained people. But surely under 97(2) there is recognition of the power to take to different places on the way to the other place, so that, for my own part, the notion that that emergency would reasonably trigger the result that you suggest seems odd. Why would the people not remain on the vessel, the vessel be refuelled – it just does not seem to - - -

MR GLEESON: No doubt, your Honour, that is why I am saying - - -

CRENNAN J: Is not a better example, if I can just ask you to factor it in, where you might have an obligation not to refoule somehow overbalanced by security considerations or something? I thought that is what you might have in mind rather than, as Justice Bell points out, a stop on the way. Why would that amount to refoulement?

MR GLEESON: Well, if it was the stop on the way under legal reasonableness you would attempt to take the steps your Honour Justice Bell has said, which is presumably you would have to get some form of – I hesitate to go back to it – agreement or acquiescence from that country to put into port, although if you are in the distress situation you would say, “It’s your international obligation to let me in”. You would presumably say, “We’re here for this declared purpose only. We would like to keep travelling on. Please don’t exercise any of your coercive powers to take the people off the vessel without our consent”.

Now, you would have taken them to the place, to the country where that was a risk, but you would have taken every reasonable step to prevent that risk being more than theoretical, so you would try and do all of that reasonably. In your Honour Justice Crennan’s case, yes, there could be that balance of considerations and - - -

CRENNAN J: I am thinking of Article 1A and Article 1F, for example.

MR GLEESON: Article 1A and 1F and you may well be in the situation where you actually have incomplete information about even the risk of the 1A and the 1F factors, so under legal reasonableness you would attempt to accommodate those matters as best you can. Now, how you would deal with that, the difference between us is Mr Merkel says, well, you have a duty at law implied to conduct a fair hearing in respect to anyone and everyone. We are submitting that it is at a lower level than that. Steps would be taken to try and reach the reasonable decision and there would be an ultimate constraint at law, but it is not a case of the officer having to say, “I simply can’t start on my taking until I have gone through that legal constraint”, because, as I say, the vessel would then end up remaining stationary for an indefinite period of time.

FRENCH CJ: Well, underpinning all of that is it not that if there is protection for people who may fear refoulement, it has to be found in the areas of reasonableness and so forth, and operational decision-making, but there is no legal constraint on the Act which requires maritime officers exercising maritime powers to comply with Australia’s international obligations under the Refugees Convention. I am not putting that in a pejorative way, I mean, these things can be done in a variety of ways. It is just a question of what the Act requires and what limits it imposes.

MR GLEESON: That, in summary, is the level at which we say the Act has responded to, recognised and responded to, very important international obligations, bearing in mind other considerations that are in the same frame and it is not a limit on power, not a mandatory consideration, yes, a permissible consideration, not excluded as irrelevant. That is Australia’s statutory response to very important obligations in a very particular environment and then with the constraint of reasonableness which would protect against the abuse of power.

FRENCH CJ: Well, it has to be a proportionate exercise of a purposive power.

MR GLEESON: Yes, and if we were here with a vessel which had been detained on the high seas for months and months and months, with no ability to say India was our destination, no suggestion it was not bona fide, when it became impossible, brought to Australia ASAP, then we would have difficulty with those proportionality questions but we would ask your Honours to consider that in this case, both the way the questions are framed and just looking at the facts before you, this is not the case where those proportionate and purposive and reasonableness limits have been exceeded.

HAYNE J: But implicit in the answers you have given is that the statutory projection of Australian power beyond territorial waters, which is what the statute envisages - the statute authorises projection of Australian power beyond its territorial waters - the statute is to be construed, what - without regard to the limits which Australia has voluntarily undertaken by treaty? Is that what is implicit in it?

MR GLEESON: That there is sufficient flexibility in the power that within the limits of reasonableness – and I am picking up here the words in Polites in Justice Dixon at [1945] HCA 3; (1945) 70 CLR 60 at 78 in the first paragraph. Within that context and recognising Polites was a war case:

The relations with other nationals and aliens who were within, or might afterwards come to, the Commonwealth were peculiarly within the care of the Executive Government. In confiding to the Executive so large a portion of the legislative power over –

in that case –

defence in such circumstances, the Parliament might well trust it to exercise the authority bestowed in accordance with what was right internationally.

Then there is a reference to the extraordinary circumstances of the war. That was the case of course where the generality of the power to conscript persons was not read down to exclude aliens, even though arguably under international law you could not be compelled to serve in someone else’s army.

FRENCH CJ: That was an asserted norm of customary international law.

MR GLEESON: Asserted norm, and so, leaving aside the fact that war is of its own significance, we are nevertheless in an area of significant relations with other nationals, aliens and, indeed, countries, and a reading of the statute where the Executive is undoubtedly confided in a large area of power, but not unlimited, with the trust that it will be exercised in accordance with what was right internationally along with other considerations is, we submit, a proper conclusion about the scope of the statute.

Your Honours, the dictation point, or however the point is framed, I only wanted to respond to briefly because most of the matters were discussed yesterday. Mr Merkel, in the transcript at page 53, appeared to veer between two propositions. The first I think he did not quite embrace that the military are not subject to civilian command. He toyed with it but he did not quite go that far correctly.

At one stage he embraced a proposition that this Court exercised the ultimate control over these powers. He could only have meant in terms of judicial review, not in terms of direct exercise of power, but his primary point seemed to be that you would avoid the chain of command in order to make sure the individual officer always exercised the independent discretion by manipulating the persons who are the decision-makers so you never had a person who was subject to orders.

What he seemed to say was, well, under 104, that is section 104, what had to happen was that you would choose a decision-maker, for example, you would choose a person under (1)(d) where the minister would appoint the maritime officer so you would exclude the most obvious possibilities of the captain on the ship in order to avoid them being subject to command, and then because you had chosen a different person that person could engage in the independent exercise of discretion which would second-guess the chain of command, and that, we submit, would be just simply rewriting of the entire scheme of the Act.

FRENCH CJ: Yes. The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours, in terms of our outline, I am currently at point 8 which is the chain of command point which will not get much better by saying anything more about it, so what I would like to do is to, with the remainder of my time, say something about the non-statutory executive power, points 9 to 11.

HAYNE J: May I, before you come to that, take you back to a question about construction of the Act. Section 72(1) provides that the section applies to a person who is or, in effect, was “on a detained vessel”. That we understand. The power of detention is 69(1), is it?

MR GLEESON: Yes.

HAYNE J: It is about the ambit of the power given by 69(2) as understood in light of 69(3) to “take the vessel” – I omit words – “or cause” the vessel – again an omission – “to be taken” to a “port” that the officer considers appropriate. Is that reference to a “port” a reference to a port in Australia?

MR GLEESON: Not limited to Australia, in or out.

HAYNE J: Why not?

MR GLEESON: Because there are no words of limitation there.

HAYNE J: Does that not fly in the face of the Acts Interpretation Act that references to things are – I cannot remember the provision but is there not a general geographically locating provision in the Acts Interpretation Act – I should have looked at it, Mr Solicitor.

MR GLEESON: In the light of what your Honour referred to as subsection (3), you are expressly permitted to take to a port, or other place, even if it is necessary to travel outside Australia to reach the port. That, we would think, connotes not simply I travel outside Australia in order to reach an Australian port but I travel outside Australia where that is necessary to reach a port, e.g. in the simplest case, a foreign port.

HAYNE J: That would be so, for example, in the case of this vessel detained in the contiguous zone, offshore Christmas Island. To reach a port in Australia on the mainland would require, would it not, travel on the high seas?

MR GLEESON: Yes, and also cover, we would submit, travel outside Australia to reach any port, e.g. in the contiguous zone, travel on the high seas to a port outside Australia.

HAYNE J: But you say, do you, that 69(2) is to be read as permitting an Australian officer to take a vessel to a foreign port.

MR GLEESON: Yes.

GAGELER J: Does section 4(2) have anything to say about it?

MR GLEESON: Section 4(2) says:

This Act extends to acts, omissions, matters and things outside Australia.

So that would appear to be a general negativing of Acts Interpretation Act-type assumptions so one comes back to the text.

FRENCH CJ: How does section 41 relate to that power under section 69?

MR GLEESON: So in section 41, if the interception is in the - - -

FRENCH CJ: Contiguous zone, let us say.

MR GLEESON: - - - contiguous zone, if the vessel had not been a foreign vessel, you would not have had to jump through section 41 at all, but assuming it is a foreign vessel, then you can exercise the power in the contiguous zone for those identified purposes. In the present case, that includes the transfer to an Australian vessel. As I put this morning, once they are on the Australian vessel, you are freed from the bar in section 41 because you are now - - -

FRENCH CJ: I understand that argument. I am just looking at 41 and its application to 69(2), taking a foreign vessel to a foreign port.

MR GLEESON: Yes. Would your Honour just pardon me for a moment? Your Honour is correct, that if one leaves the contiguous zone, one may be looking then, for instance, at section 41(d) as to whether you are properly administering or ensuring:

compliance with a monitoring law that applies to foreign vessels, or persons on –

the vessel. So you might have to satisfy that or one of the other limbs, e.g. under (j) you might need to at that point get the request or agreement of the country with the flag. So I accept there is a range of ways in which those limits might confine the generality of section 69. There being, of course, in section 72(4) no such issues because of the express identification of a place outside Australia.

So, your Honours, what I had proposed was to deal with the non-statutory executive power, points 12 to 15 I will touch on only briefly because the issues are essentially joined, that is procedural fairness, and then I will ask Mr Donaghue to deal with what we submit are the non-issues, 16 to 18. Your Honours, with the non-statutory executive power, a starting point would be to put the ultimate submission to your Honours as to why section 61 provides the power, recognising I will have to deal with whether it has been abrogated or cut down by statute.

We would submit two things, really. The first is that the executive power under section 61 extends to include the activities carried out in the Tampa decision, carried out in the case considered in the Tampa decision, Ruddock v Vadarlis, that is, actions by the Executive. In that case it would appear in the territorial sea, to close the ports to repel a vessel seeking to come without permission, to forcibly board the vessel through the military in order to make the repulsion effective, and then steps directed to see that the vessel goes elsewhere. Now, Mr Lenehan, in his six-point submission was notably silent on what the plaintiff says about the correctness of Tampa. Let there be no doubt, we submit - - -

FRENCH CJ: I thought that was pretty clear.

MR GLEESON: Yes. They were a very good six points, but Tampa was not in them. We submit the majority in Tampa were correct and I want to say a bit about Tampa. So, that is our first submission, first ultimate submission of what section 61 would embrace, and then the second ultimate submission is that it also extends to the present case which might be described as the interception of the vessel in the contiguous zone before it reaches the territorial sea, the transfer of the persons to a Commonwealth vessel, the choice of a place to take them, and then the taking, all for the purpose of ensuring that the provisions of Australia’s migration law, sections 42, 229, 223A - 233A and 233C, are maintained and upheld. They are the two ultimate submissions.

Now, Mr Lenehan, apart from treating Tampa as an unwanted intruder put, in effect, that the reason the majority was wrong in Tampa was because the majority thought that sovereignty was the beginning and end of the problem, so he accepted that sovereignty is in the frame here, namely, it seems obvious that the nation as a polity must have the power to repel effectively persons who come here without permission, he did not deny that. What he then said was, in effect, the logical error in the Tampa majority is to think that sovereignty answers the next question as to which arm of government has the power.

Now, we would submit that while sovereignty may not answer the entirety of the second question, it is a pretty good starting point, namely, that if the power we are dealing with is one quintessentially concerned with the protection of the nation as a whole from what may properly be regarded as conduct antithetical to the nation’s interests requiring in turn dealings with aliens and foreign nations, the arm of government which quintessentially would be expected to exercise the power under section 61 is the Executive Government.

There is no suggest from Mr Lenehan that the Court has the power to make this decision, that is out of the question. His suggestion, in effect, is that our Constitution was frozen in 1900 such that the repulsion of these threats could not be engaged in by the Executive unless the Parliament had first chosen to legislate; that is, that even if one viewed the power as executive in character requiring these dealings with foreigners and foreign nations the Constitution provided that until Parliament spoke on the topic the power could not be exercised. Now, if that were right between 1901 and 2001 when the amendments were passed following Tampa the Commonwealth as a whole had no power to repel the ship, as occurred in Tampa, and it had no power to deal with the present situation.

Now, in effect, what Mr Lenehan is putting is that the power within our polity has been reduced solely to a statutory power. If you have a statute, you exercise it in accordance with the statute. If you do not, you cannot. Now, where did he source that requirement other than to say that sovereignty does not start and finish the problem? Really, what he did was to take the cases concerned with the dealings between the sovereign and subjects of various characters within the territory and extrapolate from them a proposition that the Executive needed a statute when it was dealing with any and every person beyond the territory.

Now, can I show that that is the extrapolation that he needs, I would submit, for this part of his argument to run? I trust the Court has Lim v Minister, can I just check that – if not, it is a terrible failure - 176 CLR 1? In Lim, there are two critical passages at least. The first is on page 19, which is the proposition that under the common law, subject to certain qualifications, the alien within the country - and then there is a footnote (37), compare Musgrave v Toy, that is the situation of an excluded alien:

whether lawfully or unlawfully, is not an outlaw -

and a little further on, because –

the common law knows neither lettre de cachet nor other executive warrant . . . any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.

So that is a common law principle, carried through into our distribution of power between the three arms of government when the Executive seeks to deal with aliens within the country, a carefully qualified principle which is not stated as applying to the dealing with aliens outside the country without any right to come here.

The second critical part in Lim is on page 30, and where the Court discusses “The power to exclude or expel” aliens and identifies that as an “incident of sovereignty” - that is at the foot of page 29, just picking it up - so there we have got “sovereignty” as a source for the power. The Court then refers, with apparent approval, to the Attorney-General v Cain and then - - -

HAYNE J: Is it there making a proposition of international law or domestic law?

MR GLEESON: Two. Firstly, international law and that is, as I am at the foot of page 29, so we have got that distance, and then the critical passage I want to come to is in the middle of page 30. The Court said this:

As the emphasized words in the above passage indicate, the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective, were seen as prima facie executive in character -

and at that point the Court references Blackstone, Chitty on the Prerogatives of the Crown, Musgrave v Toy and so on.

So the Court there, we would submit, provides a recognition that when we are in the situation of particularly the expulsion of aliens, we are dealing with a character which is prima facie executive in power, consistent with the notion that in the division of power between the three arms of government this is not a power that is reduced solely to a statutory source, and that perhaps is an important point on which this part of the argument would turn.

So, in the case of the particular facts of Tampa, when the SAS officers under civilian control board that vessel and exercise coercive powers over persons on the vessel, and did so without statutory authority, we would submit that consistent with Lim at page 30, section 61 of the Constitution, perhaps further enlivened by section 68, provided the constitutional authority for that to occur.

Next, Mr Lenehan took you to cases such as Re Bolton [1987] HCA 12; (1987) 162 CLR 514 at 521 to 522 and said that is the principle that he relies upon, but if one goes to 521 and 522 and looks, for instance, about halfway down where there is a discussion of Barton v The Commonwealth and then Lord Denning in R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243, it is quite clear that principle is limited again to persons within country, and that is the context in which Justice Brennan goes on to deal with limitations on executive power in the area of detention or deportation of persons within our territory, and that is the context of Re Bolton.

So the challenge for the plaintiff, we would submit, is whether that principle which provides, in effect, no executive power unless you have a prior statute can be applied in the circumstances of either Tampa or the present case.

HAYNE J: Tampa was within territorial waters?

MR GLEESON: So far as appears within the territorial waters both steps occurred: firstly, closure of ports, and secondly, the forcible boarding of the vessel. If I could come almost immediately to Tampa which is Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, but just to observe, hopefully without provoking too much controversy, that the issues that engaged the Court in Williams (No 1), Williams (No 2) and Pape are not the issues we are directly grappling with here.

In Williams (No 1) and (No 2), for example, we were dealing with a purported exercise of power which, as evidenced by the many and enthusiastic State Solicitors-General at the Bar table, raised an issue within the federation of great moment, an issue of purported current power and the Court ruled as the Court did.

In the present case, we are looking at what might be thought to be one of the classic areas in which the prerogative has been brought into section 61 and enlivened the dealings between Australia and foreign persons and foreign nations, and there is no suggestion that the power, for instance, to make treaties is not section 61 power, no suggestion you need a statute before you enter a treaty, no suggestion that going to war or commanding the armed forces to engage in overseas missions is not classic section 61 power.

I do not think there is a suggestion that the entry of memoranda of understanding with other nations would not be a section 61 power without need for a statute. But what is put is that when it comes to an endeavour to defend and protect the nation as a whole offshore, the Executive cannot act without a statute and therefore, absent Parliament having passed a statute, no arm of government can act to defend the polity. In Ruddock v Vadarlis - - -

HAYNE J: Defend the polity by acting beyond the territory of the polity.

MR GLEESON: No doubt, because the place in which the threat, to use that word neutrally if I can, arises is in that very place and the purpose of the threat is to enter the territorial sea for the purpose in turn of entering Australia without permission. One of the interesting aspects that Tampa and this case raises is that there is a little theme perhaps in Mr Lenehan’s submissions that we should treat the prerogative as an ever diminishing and, indeed, ultimately vanishing species limited down to more and more rare occasions.

The position is not quite that crude because, on a proper reading of section 61, and as principles develop between nations as to how we treat each other as sovereigns, the types of things the Executive might properly be called upon to do may be larger or smaller over time. For example, at 1901 the concept that a sovereign’s territory extended into a territorial sea was probably not as clearly accepted or agreed as it is today by convention. More clearly than that, the concept that it may be proper to have a relatively modest contiguous zone in which you would exercise powers to prevent breaches of your laws, I believe was not generally recognised in the law of nations at 1901.

HAYNE J: Reflected entirely in British experience by the Hovering Acts, was it not?

MR GLEESON: Yes, those sorts of matters. So what we now have - - -

HAYNE J: But only – that is, the British Parliament thought it necessary in order to project power beyond the territory to enact the Hovering Acts.

MR GLEESON: Well, that is part of the picture. The Court knows of course from cases like Attorney-General v Nissan that there is an express recognition that the British Crown could direct its forces to engage in conduct overseas and that would be partly traced back to the prerogative.

The point I seek to make is that do you have at 1901 in international law the equivalent of Article 33 of UNCLOS? The answer to that is, probably no. Do you have such a provision which has emerged over time through agreement between the civilised nations? Yes, you do. Does that provision have a sovereignty rationale behind it? Yes, a recognition that if you wait until every threat has entered your territorial sea it may be too late, and therefore you may have these additional powers, even over foreign vessels, in your contiguous zone.

Now, we would submit this would be a case where the limits of the power under section 61 do not necessarily keep shrinking over time. The section 61 power to do things to defend the polity could well take into account these developments in relations between civilised nations, and therefore, we would submit, that in the Tampa facts, had the steps been needed to be taken in the contiguous zone, the result under section 61 would, or should, in law have been the same.

Can I go then in Ruddock v Vadarlis to your Honour the Chief Justice’s judgment. The facts are set out on page 522 in paragraphs 127 through to 130, and your Honour’s discussion of section 61 commenced at paragraph 176. There are these matters which we submit are worthy of recalling about the judgment, firstly that at paragraph 177 your Honour recalled that there was a view for the time in the early years of the Commonwealth that the prerogative in this strict and narrow sense might have been reserved to the Crown on the advice of the imperial Ministers, but that view, of course, has been long since discarded.

Now, there is an example of a view of the prerogative which was too narrow, which has been exposed as too narrow, because of course the matters there referred to, declaring war, entering treaties or acquiring territories would now all be done under section 61 on the advice of the Ministers here.

Then at paragraph 178 your Honour referred to what Justice Mason had said in Barton v the Commonwealth in the classic passage[1974] HCA 20; , 131 CLR 477 at 498. I do not need to repeat that that particular passage at 498 has been picked up by many, many judgments in this Court since, and there is a reference here to:

The Constitution conferred upon the Commonwealth power with respect to external affairs . . . the responsibility for the conduct of the relationships between Australia and other members of the community of nations, including the conduct of diplomatic negotiations . . . By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth.

Then the classic phrase:

It enables the Crown to undertake all executive action appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law.”

Now, there we have the classic statement of Justice Mason. Your Honour in 179, as it were, added a rider to that, that to use the concept that the “prerogative” may not fully and adequately illuminate the origins in section 61 and then in quoting from Davis v Commonwealth we see a preface for intra-federation issues that then became important in Williams. At 180, your Honour referred to statements of Justices Brennan and Jacobs that the phrase “maintenance of the Constitution” – so here we are looking at the very text of section 61:

imports the idea of Australia as a nation.

Now, can I just pause on that? Mr Lenehan would say that is a heresy or illogicality because one is confusing sovereignty with allocation of power between three arms of government. We would submit that this is correctly drawing the bridge between the two. Then at paragraph 181 and following, your Honour directly addresses the question of when it is that the executive power is subject to parliamentary control and makes some observations about how one approaches the construction of statutes alleged to abrogate or regulate the prerogative, going back to the classic discussion in De Keyser’s Case.

So, with respect, your Honour’s judgment here is completely live to the fact that having discussed sovereignty the problem has not necessarily been completely answered and there is a discussion of, at paragraph 184, what kind of language one needs in an alleged abrogating or regulating statute to displace the power. Your Honour says it needs to be “a clear intention” and your Honour refers to what Chief Justice Barwick said in Barton, that the term “extremely strong” is used to describe the fact:

that the prerogative of the Crown is not displaced except by a clear and unambiguous provision”.

Now, we would urge, respectfully, that that correctly states the test. Then your Honour makes a point at 185, which comes back to this concept of sovereignty, which is that where the power is:

intimately connection to Australia’s status as an independent, sovereign nation State -

there would need to be even clearer language or -

inescapable implication, the parliament would have intended to extinguish the power.

Then at 186, your Honour moves to a section headed “The Executive power – the gatekeeping function” and this completes, as it were, the triangle of issues that are being brought together in this judgment and refers to:

the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner . . .”

and there is some discussion of Toy v Musgrove. At 187, your Honour here, with respect, is alive to the Lim-type point that the position may be different where what the Executive seeks to do through the prerogative is to send people out of the realm because of the common law jealously regarding the liberty of persons within the realm.

Dropping down to 190 on the next page, your Honour having analysed certain of these earlier cases, considered them to be cases where the executive order had contravened a relevant statute under which there was an implied permission to be here and so not ultimately dispositive. But 192 and 193 is where the judgment comes close to its first conclusion. In 192 about halfway down the judgment says this:

There are legislative powers however which may be seen as central to the expression of Australia’s status and sovereignty as a nation.

They include aliens, immigration and influx of criminals:

Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not. That power may also be linked to the foundation of the Constitution in popular sovereignty implied in the agreement of the “people” of the pre-federation colonies “to unite in one indissoluble federal Commonwealth”. It may be said that the people, through the structures of representative democracy for which the Constitution provides, including an Executive responsible to the Parliament, may determine who will or will not enter Australia.

Now, pausing there, that has dealt not just with sovereignty but with the critical question which of the three arms of government shall exercise this power, and has tied the answer to that question back to the very text of our Constitution, I would submit, not committing the heresy that Mr Lenehan was hinting at. Now, 193, your Honour then expresses the principle:

In my opinion, the Executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the Executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude.

So the Bolton situation has been set to one side.

The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation –

That is the Chapter II government –

would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.

Now, that paragraph there -193 - the plaintiff must be saying is wrong, and yet the plaintiff has not deigned to take on the challenge directly of explaining why it is wrong. What the plaintiff does do, however, is offer you some submissions on some of the earlier cases. Mr Lenehan referred to Robtelmes. What we will see from paragraph 194 is that your Honour correctly observed that that case did not decide any question. Then at 195 your Honour expressly distinguished Bolton and Lim for the reason I have earlier mentioned.

Now, that leads perhaps again at 197 to an important next step in the judgment, which is applying the general proposition at 193 to the facts of Tampa. Your Honour concluded that absent statutory abrogation the executive power:

would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result. Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave.

Now, those last words, “compelling it to leave”, obviously take on particular pregnant significance in the light of the particular facts that emerged in this case and that is where our proposition would be that what was put in the Tampa majority is correct, as far as it went. It should not be limited to the particular circumstances of paragraph 197. By parity of reasoning, it would apply in respect to the present circumstances.

The final part of the judgment I need to refer to is then the next section at 199 and following, which was whether there was an implied abrogation of the power by the Migration Act. At the end of 199, your Honour observed:

that the Migration Act provides a comprehensive regime for preventing unlawful non-citizens from entering into Australia and for their removal from Australia if they do so enter -

It conferred “substantial powers on the Executive” in that respect. However, at 201 your Honour then posed the question, consistent with the earlier statements, was there -

a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens –

and at 202 said that -

In considering what is the implied intention of the Migration Act . . . it is necessary to have regard not only to the general approach, supported by authority . . . but also the importance to national sovereignty of the particular power in question -

and this is the critical part -

In my opinion the Migration Act, by its creation of facultative provisions, which may yield a like result to the exercise of Executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Migration Act confers power. It does not in the specific area evidence an intention to take it away -

The Migration Act, one must ask, whether it is -

necessarily inconsistent with the subsistence of the Executive power –

Now, how do we apply that last point to this case? Clearly, we have to grapple with sections 3 and 5 of the Maritime Powers Act and we have to factor in - - -

FRENCH CJ: There has been no decision has there on section 7A of the Migration Act, because I think it was enacted about that time, or shortly after?

MR GLEESON: We are not aware of anything. Factoring in that under section 58 of the Constitution, the Crown has assented to the Maritime Powers Act containing sections 3 and sections 5. This is what, we would submit, those two sections add up to.

Firstly, the Crown has accepted that insofar as its power needs to find a source in this statute, it is undoubtedly bound by all limitations in the statute. Secondly, the Act has recognised, particularly in section 5, that there may be executive power to do some or all of the things provided for in this Act, that is, under section 61 directly, and the Crown’s assent to this Act and Parliament’s passing of the Act is not intended to cut down that power.

That does not mean, as Mr Merkel submitted yesterday, in answer to a question, the Crown and the Parliament intend the executive power can be exercised without limits. It means that the facultative powers in this Act are to sit next to such facultative powers as may be available on a proper application of section 61 to particular circumstances.

Let me make that specific. Clearly within section 61 there are limits of what may be done under the executive power and there may well be questions of reasonable necessity in the exercise of power. There are limits there, those limits are not cut down or abrogated, nor is the power cut down or abrogated. We would submit the sort of language you see in section 3 and section 5 is exactly the type of language one would expect to see if there was an intent to create a statutory source of power subject to defined limits which would operate in a facultative manner next to such power as may exist directly under section 61.

They are Mr Lenehan’s points. Mr Merkel’s additions to them were, well, if we are right so far we are wrong because the power ends at the territorial sea. The reason for that was not clearly indicated. If the source of this power is that which is necessary for the defence and protection of the nation and if, as is recognised in UNCLOS, the contiguous zone is an appropriate place to take those steps, we would submit that there would be no such limit.

His final point was that somehow the Commonwealth has elected – election as a doctrine involves the choice between inconsistent rights or powers, and there is nothing inconsistent between saying I take steps pursuant to each and every source of power I may have and my conduct will be judged by the limits on those heads of power accordingly.

CRENNAN J: Would you accept if you were operating under section 61 when outside the territorial zone, for argument’s sake, that an exercise of power to take an alien would be subject to the constraints such as the one you have in section 74 of the Act? This is asking you now about possible constraints on section 61, recognising that the Act may not cover certain area, for argument’s sake.

MR GLEESON: The end result is likely to be similar on the facts of the case. The starting point is different, as in what section 61 would require you to do is it is an ample power, but it is to do what is considered reasonably necessary in your judgment as the organ with a repository of quite a deal of judgment to effect the defence and protection of the nation and the maintenance of its laws. So, if one thinks about the making of treaties, for instance, the discretion, if you want to use that word, given to the Executive under section 61 is very, very large, perhaps not completely unbounded.

In the facts of our case, and that is why I have tried to step through them in turn, the first is to intercept the vessel in the contiguous zone - that is within section 61; to take the people onto your vessel, particularly because theirs is unseaworthy - that would seem uncontroversial; and then at the next point taking the step to respond to this contravention of the laws could be either of the bifurcated pathways in section 72, bringing them to Australia, that would be within the power; taking them to a place outside Australia which succeeds in disrupting the attempted contravention, that would be within power. Your Honours, that just left me with procedural fairness where, as I have submitted, I believe the issues are - - -

KIEFEL J: Just before you go to that, just for clarification, in your written submissions you say that there is no limitation on the non-statutory executive power by either international law or by statute. Are you saying that the executive power is unconfined?

MR GLEESON: It is confined by the limits of reasonable necessity generated by section 61. There is no limitation here because this statute has not abrogated it or cut it down, but it could of course be cut down by an appropriately worded statute. The final bit of the question is probably the harder bit - what does international law say about section 61 – and my answer would be that international law does not provide a hard limit on section 61 power, really for the Polites-type reasons that what the Constitution has entrusted to the Executive in this most important and difficult area of external affairs is to do the right thing. Of course the international obligations will be of critical significance in that area.

But the whole of the executive power, if one thinks about even an uncontested example – treaties – the whole of that area, that is, whether to make treaties, how to perform treaties in good faith as we are required to under the VCLT, the generation of state practice which in turn may assist in informing treaties, these are matters entrusted to the Executive under section 61 and in many cases the content of international law is, unfortunately or otherwise, contestable and it will be the Executive charged with the responsibility and good faith of engaging in the interpretive exercise of the performance of our international obligations.

So a hard limit which said if it were found as a matter of international obligation Australia was wrong, you have exceeded section 61, I would submit, would not be appropriate. The limit is a softer one of the sort I have offered.

FRENCH CJ: Does the scope of the executive power contract to the extent to which Parliament creates mechanisms rendering it unnecessary?

MR GLEESON: No, because what Parliament may do is to create a facultative mechanism to sit side by side with that which we have to tease out from a delightfully short number of sections of the Constitution. So Parliament’s response – let us take the Tampa Case, for instance. Tampa - there is a majority Full Federal Court decision on the scope of the executive power. There is a special leave application. Special leave is refused in circumstances where events had moved on.

One perhaps was not left with final certainty from the Tampa litigation as to what the scope of the executive power was. One was left with what I submit is the correct position, but that is for this Court to ultimately decide today. Parliament responded, perhaps quite properly, and said, “We will bring in a facultative set of provisions which, whatever be the answer to the section 61 question, officials can properly and conscientiously go about applying”. Now, was Parliament thereby intending to remove the section 61 power? We would submit that the answer is no and that is what section 3 and section 5 are designed to tell us. It means that in many cases the difficult question will not need to be resolved any more, but that exercise of legislative power should not be treated as cutting down the section 61 power.

Your Honours, on procedural fairness, there are only two matters I wanted to add, and then hand over to Mr Donaghue. The first was that at transcript 49 yesterday there was a concession from Mr Merkel, which we submit was correct, that there is no general procedural fairness in the Maritime Powers Act and, in other words, at every step in this process of authorisation through to exercise of powers such as boarding of vessels, section 52 search, seizure, examination, 57, 68, and detaining the vessel, there is no requirement for advanced notice and nothing to have a hearing about, and that is so in a way which necessarily subordinates the rights of individuals to the purposes of the Act.

Ultimately we would submit that nothing has been put forward to explain why at the particular stage of the taking there is suddenly by implication a regime for notice and for hearings. One of the interesting things about the Act is that where it requires notice it, in places, says so expressly, and could I give two sets of examples. Firstly, in section 100, where a person is arrested they receive concurrent notice of the offence for which they are arrested, no suggestion that they are given advanced notice or a chance to be heard on arrest.

The other sets of provisions are 80 to 82, where in the case of seizure and detention of vessels or things notice is to be given to the owner and other persons within a period after the exercise of power, and there are provisions for the return of those things at a future date, if they are not required for law enforcement purposes, sections 83 and 86 and following. So the statutory scheme has quite explicitly in places only said you do get notice, but you get it either at the time or, more commonly, you get it afterwards and you get some rights to get your things back.

Now, to engraft upon that by implication, some scheme in one particular area of notice and hearing, we would submit is inconsistent with the Act. We have looked for cases in this Court where in a closely parallel context one finds that by necessary implication through the very nature of the power procedural fairness is done away with and we have not found a case directly in point.

We have given your Honours an example of the decision in Francis in a lower court, the Attorney-General v Francis [2008] QCA 243; (2008) 250 ALR 555, where someone tried ambitiously to argue that a power of arrest required advanced notice and a hearing and that was dismissed summarily at pages 570 to 571 and 579.

The only other matter we would add on procedural fairness is the fact in the special case at paragraph 24(e), which Mr Merkel asked you to disregard, we would submit that that being a fact there is a significant risk that if they were told they were being taken to the particular place, India, these actions might be taken which would threaten safety and effectiveness.....is just one of the matters that would bear upon the entire unsuitability and impracticability of this alleged requirement.

Mr Merkel says, well, have a look at the next paragraph. The fact is no one did engage in any of those unfortunate practices. True, one might infer that not being told of the fact, the significant risk has not materialised. So it is just a pointer to what otherwise appears from the scheme that procedural fairness is not a condition on power.

GAGELER J: What about section 74? Does procedural fairness enter into the analysis that is required by section 74, where it applies?

MR GLEESON: Our answer would be no, no procedural fairness. What section 74 is is a hard edged requirement. You must not place a person in somewhere which is a non-place of safety.

HAYNE J: How can you have reasonable grounds for forming that decision if you have not asked the person concerned, is there any threat you identify?

MR GLEESON: Well, that is why I have said, it is a hard edged requirement. You must form the satisfaction on reasonable grounds that it is safe for someone to be in that place. Now, this requirement could apply to a whole myriad of situations on the vessel.

For example, in the present case, perhaps, a large number of people are brought on to the Commonwealth vessel and they are put into, let us say, three separate compartments on the vessel. They are placed in that

particular part of vessel. To comply with your duty, you must be satisfied on reasonable grounds that it is safe for them to be in that place. You may not need to ask any questions of them to satisfy your mandate, you just have to satisfy your mandate, and you would do that by making sure that the place was not so overcrowded that there was likely to be a riot break-out. Now, 74 can apply in a whole lot of situations and it may well be, in particular instances, for the officer to form that reasonable satisfaction, the officer might need to ask a question.

So I do not rule out the possibility that in compliance with that obligation in a particular case you might need to ask a question, but that is not the same as saying that there is a general requirement of procedural fairness on that power or that there is, by further extrapolation, a general requirement of procedural fairness in section 72(4) and, indeed, one might observe with the difference of language, there is nothing in section 72(4) to say that when you detain and set out on this course of taking, or carry out the taking, you have to be satisfied of any matters on reasonable grounds.

Your Honours, the final matter that I would seek to add is that what may have come out of discussion on various limits today is that the process of taking under section 74 is not frozen in time. It is a process which starts with a purposeful decision directed to a taking to a place. It is a process that is carried out through a period of time and it is a process which, ultimately, will have, it is hoped, a successful conclusion.

There are a variety of variables that can bear upon whether the endeavour is successful and the limits on the officer are essentially those of legal reasonableness that I have sought to identify and they apply at each point in the taking. Your Honours, is it convenient then to move to the final points on our outline?

FRENCH CJ: You are going to be fairly brisk, I imagine, Mr Donaghue.

MR DONAGHUE: I am going to move very quickly, your Honours. There are four points that I seek to address the Court on, three concerning international law issues and the last concerning the false imprisonment nominal damages type question. The three international law issues are, one, the proposition that customary international law forms part of the common law in a way the limits executive power, two, the question of whether there is a rule of customary international law concerning non-refoulement being a rule that has extraterritorial scope, and third being the extraterritorial scope, or otherwise, of Article 33 of the Refugees Convention.

If I could start with the first of those, the relationship between customary law and the common law? Our friends did not say anything about this orally, but their written submissions advanced the proposition that customary international law is either incorporated into or transformed into the common law. It appears that that is deployed in support of an argument that has the following four steps: step one, the prohibition on refoulement is part of customary international law, step two, customary international law is part of the common law, therefore putting those two steps together the prohibition on non-refoulement is part of the common law, that is the third step, and finally, having taken those first three steps, that common law rule is a fetter on executive power.

FRENCH CJ: Do you accept that judicial adoption is necessary to incorporate customary international law into the common law?

MR DONAGHUE: Do I accept it?

FRENCH CJ: Yes.

MR DONAGHUE: Your Honour, at least.

FRENCH CJ: It is a dualist system still.

MR DONAGHUE: If it is possible for judicial adoption to do it, but certainly not automatically.

FRENCH CJ: I mean, that was a debate in Nulyarimma.

MR DONAGHUE: Yes, and our friends are hedging their bets on that because their submission puts both sides of the equation, but our submission is that if your Honours need to get there at all this is not a case where your Honours should adopt or transform the international law into the domestic law - - -

FRENCH CJ: Well, even if it were adopted into the common law, what greatest use would it have in this context than an interpretive principle along the lines of a principle that applies any international obligations or common law principles?

MR DONAGHUE: Well, that is what I was about to say, your Honour. It is hard to see how it adds - there are two scenarios where we can see it might add something to the case, and both are pretty tenuous, in our respectful submission. The first would be if the fact that there is a customary rule does something more than what your Honour the Chief Justice just put to me because you have clearly got the statutory – sorry, you have got the conventional treaty obligation that already does what your Honour the Chief Justice put to me, unless custom does more than that why would we bother going to that question.

The other possibility is that it might be said, as the UNHCR have said in writing, that the content of the customary rule is different than the treaty because they say the customary rule is extraterritorial. So they are the only two ways we can see why your Honours might even need to get to the point, and our short submission is that if your Honours turn to what our friends have put on this in writing, which is at paragraph 55 of their submissions, you will see the way that they have put it is that they have suggested that there are three limits. Paragraph 55 starts on the bottom of their page 11, and the three suggested limits are, one - this is at the top of page 12:

the relevant obligation is widely accepted as binding among nations –

pausing there, that limit does not add anything, your Honours, because in order to be customary international law it must meet that criteria, so that is not going to limit anything. The second limit is -

there is no rule in an Australian statute or in judge-made law in Australia contradicting the relevant obligation -

The third is -

the relevant obligation relates to the rights or responsibilities of the sovereign, rather than individuals.

The point we make, your Honours, is that even on the plaintiff’s own case you only incorporate or transform international law if that would be generally consistent with Australian law and the proper approach, we submit, is to identify the content of executive power as a matter of Australian domestic law. Having done that, if the international law would cut it down, there is an inconsistency there which would prevent the Court from transforming the international law rule, that is, the Court should not create an entirely new limit which would presumably limit not just the Commonwealth Executive but State Executive Governments as well, by picking up the international law and making new Australian law. So we submit your Honours should not countenance that kind of approach.

If your Honours were minded to reach the question, we submit that the clearly preferable view is that it is necessary for there to be a step that transforms international law into domestic law. The House of Lords looked at this in a case we have handed to your Honours called R v Jones [2006] EWCA Civ 1079; [2007] 1 AC 136. Your Honours would know it is sometimes put that this is a point of difference between Australia and the UK, that the UK is said to adopt an automatic incorporation approach. This case holds that that is not the position. In the United Kingdom you do need transformation.

Relevantly the paragraphs – I will not ask your Honours to go to it - but it is in Lord Bingham’s speech at paragraphs 11 and 23 to 24 where there is an approving citation to the majority in Nulyarimma. In Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153 in the judgment of Justice Wilcox who was a member of the majority, if your Honours turn to page 162, paragraph 20, you will see Justice Wilcox making the point about four lines down in that paragraph - his Honour was contemplating a need for legislation to transform international law:

it is another thing to say that, without legislation to that effect, such a person may be put on trial . . . If this were the position, it would lead to the curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention.

We respectfully submit that that is so. It is not clear why there should be that difference between the two possible sources of international law. The position is aptly put by Justice Wilcox in paragraphs 25 and 26. His Honour says the passage he has just quoted:

brings home the point that it is difficult to make a general statement covering all the diverse rules of international customary law.

In paragraph 26 he recognises there is a policy judgment there. This is not an area where one size readily fits all and, in our submission, there is no warrant for your Honours to incorporate an international law, the sole effect of which would be to fetter executive power.

Turning to the second proposition about content of customary international law, as your Honours know, in order for something to form part of customary international law, there are two requirements. There must be a widespread general practice of states and that general practice must be followed out of a sense of legal obligation. States must believe themselves to be required to act, hence they do. Justice Brennan summarised the relevant law in Polyukovich v Commonweath [1991] HCA 32; (1991) 172 CLR 501, relevantly at 559 to 560.

Our point here is that your Honours are presently in a position where you have none of the material that you would need in relation to state practice or opinio juris to form an informed judgment about the content of customary international law. If our friends wanted to make that case they needed to include in the special case material that would bear upon that question.

Most particularly, your Honours have nothing before you that would allow you to conclude that not only is non-refoulement part of customary international law, which it may well be insofar as non-refoulement is reflected in the Refugees Convention, but you have nothing to suggest that there is an extraterritorial rule of customary international law. On the contrary, you have multiple cases in the material that show states engaging in practice that would be inconsistent with such a norm. So, Sale - - -

FRENCH CJ: Mr Donaghue, we have had the benefit of your written submissions in all of this and I am conscious of the quality of opportunity in terms of time between the parties. Now, I think you should wind up focusing on anything which you wish to particularly draw attention to in these final points which may have been the subject of comment by Mr Merkel which is not covered by your written submissions.

MR DONAGHUE: Yes. Some of these propositions are not covered in writing at all, your Honour, because our position was they were not properly raised by the case and so we did not go into them in writing but I understand what your Honour says. In respect of the – I do need to say something about the extraterritorial scope of the Refugees Convention. Your Honours would understand that we submit that the Convention does not pose an extraterritorial rule and we rely on the decisions in Sale and in Roma Rights and in comments of this Court. Your Honours are asked to find all of those authorities are wrong.

You would, in our submission, only do that if it was important to the outcome in the case. There are two ways in which it might be thought to be relevant. One is if there is what the Solicitor-General has called a “hard limit” so that you could not take someone under 72(4) in contravention of the Convention. If that were thought to exist, if your Honours did think there was a hard limit, it would be important to decide whether the Refugees Convention applies at all in the place where power was exercised here because the place where power was exercised here was not within the territory of Australia and so if the Convention does not have extraterritorial effect it follows that there cannot have been a contravention of that hard limit. The other way it could arise is as a mandatory relevant consideration.

HAYNE J: Like smashing together two radically separate questions, one of construction and one of application.

MR DONAGHUE: Well, with respect not, we submit, your Honour, because if there is a hard limit derived by reference to non-refoulement one would expect the limit to reflect the content of the international law that is the inspiration for the hard limit. If there is no rule of non-refoulement that applies outside Australia’s territory, why would it be presumed or why would the Court strive to read a power as subject to a limit that actually does not exist in the area where the power is exercised?

The point that I seek to make which we have not made in writing is that - and this really relates to some of the matters your Honour Justice Kiefel raised - is that if it were thought that the international obligations are a mandatory relevant consideration then that might be a reason again why one would need to know whether the treaty applies there. But if I could refer your Honours to this Court’s judgment in Lam 214 CLR 1 at page 33, paragraphs 99 and 100 to 101, Justices McHugh and Gummow said that the case law draws a line which operates so that international law is not to be regarded as a mandatory relevant consideration.

What that line reflects is that there is an area where the Executive is to be left, trusted if you like, left to comply with its international obligations, despite the fact that the court will not as a matter of domestic law be able to force it to comply with those obligations. That is the reason why there is preserved an area where domestic law does not mandate that compliance.

Your Honours, I will not take you to Sale or the Roma Rights Case, but it was argued in the Roma Rights Case in the House of Lords that Sale was wrong and that invitation was rejected expressly in the judgment of Lord Hope. The leading judgment was given by Lord Bingham but at the end of his judgment, Lord Bingham agreed with Lord Hope’s remarks. It was, we submit, the whole House of Lords rejected the submission that Sale was wrong and we submit your Honours should not lightly conclude that the highest courts in both the United States and the United Kingdom were wrong in the conclusion that they reached.

Finally, your Honours, on the nominal damages question, your Honours asked some questions yesterday around the topic of whether this is properly viewed as false imprisonment at all in circumstances where it is clear that detention would have occurred on any event. That topic was debated at great length by the United Kingdom Supreme Court in Lumba which we have referred to in our written submissions.

It is R (On the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. The House of Lords divided 6:3 on the question whether there was false imprisonment at all in circumstances where even though the actual decision to detain was unlawful. It was inevitable that the person would have been detained anyway, that is, that a lawful decision would have been made, had the unlawful decision not been made.

So three members of the court said in that situation there is no false imprisonment at all. That that was particularly Lord Brown and if your Honours would refer to paragraphs 341 to 344 and 357 to 359 - - -

KIEFEL J: Would a decision have been necessary here or would the Migration Act simply have required detention?

MR DONAGHUE: Well, if the people had been brought to Australia, the Migration Act would have required detention. But we only get here if your Honours have found that there is a limit on power of some kind. If, for example, the limit was a procedural fairness limit, it may be that having afforded procedural fairness, the very same detention power could have been used to take the same people to India, validly, and so their position would have been exactly the same except they would have been detained for longer because the period of procedural fairness would have had to be accorded before the detention that followed.

All we need for present purposes to derive from Lumba is the more conservative position of the other six members of the court which was that if you would have been detained anyway, then there is no loss of liberty to be compensated and, thus, nominal damages are the only appropriate response. That was the conclusion reached by Lord Dyson for the majority and if I could refer your Honours to paragraphs 93 to 95, to where you find that conclusion. If it please the Court.

FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Merkel.

MR MERKEL: If the Court pleases, Mr Lenehan will be doing the reply.

FRENCH CJ: Very well. Mr Lenehan.

MR LENEHAN: Your Honours, I am going to address five points. The first is the chain of command and the issue of where the decision was made; the second, briefly, is procedural fairness; the third is the limit regarding discharge; the fourth is non-refoulement and the last is the executive power, again, shortly.

In terms of the chain of command, my friend, Mr Merkel, dealt with this yesterday and I will not repeat what he submitted. We do not say that section 72(4) is to be construed as such that either the chain of command within the AFP or the ADF is disrupted, as appears to be put against us, nor does our submission lead to the conclusion that defence force personnel are not subject to civilian control.

The critical words, in my submission, in section 72(4) are “cause . . . to be taken” and as Mr Merkel took your Honours to yesterday, section 104(1) includes as a maritime officer any member of the Australian Defence Force, and so what we say follows is that any officer within the ADF giving orders that a person is to be taken to a particular place is thereby causing a person to be taken to that place within the meaning of the provision.

As our friends put in their written submissions at paragraph 51 as regards the ADF, that of course is subject to an interlocking statutory scheme in the form of the Defence Act, which, by section 8, confers upon the Minister of Defence a power, a direction, to direct the Chief of Staff, the Chief of the ADF or the service chiefs as to the general administration and control of the ADF, so none of that is threatened by the construction that we put.

In addition to the textual and contextual matters that Mr Merkel took your Honours to yesterday that suggested that section 72(4) does indeed confer a discretion, can I just put this? In our written submissions we have identified section 33(2A) of the Acts Interpretation Act. That of course is subject to a contrary intention but it says this:

Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used –

as it is here –

the act or thing may be one at the discretion of the person, court or body.

We further rely on the fact that, as my friend, Mr Gleeson, accepted I think today, section 72(1)(b) appears to be the key into the way in which these powers were in fact exercised here. The wording of that section is important, it being the key, as I said, to enlivening the power. In terms of requiring a reasonable suspicion by the particular maritime officer, it is a further textual indication that it is that person, the particular maritime officer, who makes the decision to take, who brings the Act to its particular application which is raised by the special case here.

Can I just conclude this part of my submissions dealing with the chain of command by noting that there is in fact no agreed fact about the Minister having conveyed a decision of the NSC, which is the assumption that I understand the defendants to rely on. That is what we put as our primary position.

I am now going to make submissions on the assumption that all of that is wrong. That would then seem to leave us with two possibilities as regards the decision of the NSC, which is the decision identified in paragraphs 16 and 20 of the special case. The first is that suggested by my friend, Mr Gleeson, that is that it is something in the nature of a freestanding exercise of a freestanding executive power, not constrained by the Act perhaps.

The second is that it is a decision – and this is our submission – it is a decision that the Act itself contemplates by reason of its very ambulatory or facultative nature, and so our submission is that some form of implied statutory authority therefore exists for the taking of that decision. Your Honours would prefer that submission for at least these reasons. First, what is involved is something of a coercive nature because of its consequences and, secondly, it is plainly not merely something which is in some way advisory, and you look to paragraph 19 of the special case which talks about specific application of the policy being confirmed by the NSC.

Now, in the universe where we are wrong about the chain of command point we have to accept that our dictation argument certainly fails, but it is my submission that the construction argument is based on section 72(4) and also our procedural fairness arguments would remain viable. I will deal with the last category first. On this assumption you would still be dealing with the exercise of a statutory power or an implied statutory power, albeit at a high level, and your Honours would be familiar with the authorities that suggest that decision-making, even at that level, can require procedural fairness.

We have put this in our reply, the hearing itself may well be conducted in those circumstances by a maritime officer pursuant to the sort of arrangement of the nature identified in Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189 at paragraph 21. That is that it is, if you like, delegated or done by some sort of internal arrangement with the maritime officer.

As to the submissions that are made both in writing and by Mr Gleeson regarding the various difficulties that apply potentially in a non-water situation, it is well established, as we have said in writing, that procedural fairness can be adapted in terms of its requirements to those sorts of circumstances and the obvious authority for that is VEAL, to which my friend, Mr Merkel, took the Court in his submissions.

As to section 100, we actually use that in our favour and you find that, just to give you the reference, in paragraph 13 of our submissions in-chief. In any event, Miah and Saeed both suggest that some sort of expressio unius reasoning, if that is what is being deployed against us there, as appears, is dangerous in this context. In terms of section 74, we adopt what your Honour Justice Hayne put to my friend and we have said something similar in writing in paragraph 15 of our written submissions.

I am moving now to non-refoulement and discharge. I will start with discharge. Again, we have said most of what we want to say in-chief. As to the time of discharge, which is perhaps the first way we put this constraint, we need to emphasise that the limitation as we have formulated it was always one of reasonable practicability, and that we say allows for the various exigencies that Mr Gleeson has put to your Honours. In terms of the - I think my learned leader, Mr Merkel, put it as the third layer of our argument on this constraint, that is, we say the limitation is to be understood as this, it is a limitation that at the time of taking you must be able to discharge at the place or, to use the singular words of the Act, a place.

Now, there seems to be some controversy as to whether in fact this arises from the special case. Your Honours start with paragraph 17 of the agreed facts. You see there, there is no arrangement or agreement at the time of taking. You then move to paragraph 20(b), that is the paragraph that deals with the ministerial negotiations, ultimately unsuccessful, but we say that all that that indicates is that there was, at the time of taking, no more than a possibility – or to put it another way, something that arises no higher than speculation.

You then go to question (1)(c). My friend, Mr Gleeson, emphasised the word “agreement” as it appears in that question. You also have to note there that it includes “arrangement”, and it reflects, we say, our limit – the limit as I have just stated it – looked at through the prism of the agreed facts, that is, the agreed fact that there is, at the time of taking, no agreement or arrangement in place. That is the concrete factual situation that your Honours have to deal with, and we say it is firmly within the special case. Alternatively, if what my friend says really is a problem, then your Honours have question (2).

In terms of the actual application of the limit, I have had handed up three articles - two by Professor Shearer, and an excerpt from Goodwin-Gill. This is to identify the issue that your Honour Justice Hayne referred to as to the dispute over what can be done within the contiguous zone. If I could just take your Honours, and I will only take your Honours to one, it is the article of Professor Shearer entitled “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels”, and the publication is (1986) 35 ICLQ at page 320. The relevant extract appears at page 330 and it merits some attention. You see there that it is said:

It is sometimes rashly assumed that the contiguous zone is a zone of extended coastal State jurisdiction in the matters enumerated in Article 33, viz. customs, fiscal, immigration and sanitation. A close reading of the text and the drafting history, however, reveals that this is not so.

The author, moving down the page says that:

under Article 33 the coastal State may only exercise “control” (not sovereignty or jurisdiction) necessary

(a) to prevent infringement of the specified laws within its territory or territorial sea, and

(b) to punish infringements of those laws committed within its territory or territorial sea -

referring to the text that your Honours have been taken to and then importantly -

The first limb, in other words, applies to inward-bound ships and is anticipatory or preventive in character; the second limb, applying to outward-bound ships, gives more extensive power, and is analogous to the doctrine of hot pursuit, to be considered later in connection with the high seas.

Since laws on the substantive subjects of customs, fiscal, immigration and sanitary matters cannot be applied to the contiguous zone, it follows that an offence cannot be committed until the boundary of territorial waters is crossed by inward-bound ships.

Not the case here.

“Control” therefore must be limited to such measures as inspections and warnings, and cannot include arrest or forcible taking into port.

Professor Shearer goes on to refer to the issue your Honour Justice Hayne has identified in terms of the British Hovering Act which provides for an alternate route by which such actions may be seen to be within the notion of international law but that has not been done here.

HAYNE J: Reference might also be usefully be made to Rothwell and Stephens’ book, The International Law of the Sea, published in 2010. I regret to say I forgot to bring down the pages that bear upon it.

MR LENEHAN: My friend, Mr Gleeson, has kindly provided it and I am happy to hand it up.

HAYNE J: Yes, in addition to these pages there is, I think, reference later in the same work to the same subject matter. I think there are two references in the work. Perhaps I am mistaken, but we can all look at them and read them.

MR LENEHAN: Mr Gleeson asked me to highlight to your Honours page 80, which he says reflects a different view. I think that is only in relation to the sentence referring to state practice with some coastal states using their navy to interdict vessels and tow them out beyond the contiguous zone into the EEZ, not take them to an entirely different country. In my submission – and, sorry, your Honours, just to complete our hand up, I am not going to take your Honours to the other extracts, but you find the other references in Professor Shearer at 434 to 435, and I think it is most of the extract from Goodwin-Gill, but it is 275 to 277.

We say on the basis of that material, this is clearly correctly described as an exercise of exorbitant jurisdiction, such that the principle of construction that Justice Hayne has identified by reference to Siskina applies. It is somewhat similar to the principle of construction that we have sought to identify at paragraph 61 by reference to Barcelo and other cases, and applying that principle one reads the words, “detain” and take “to a place” as meaning compulsory taking to a place for the purposes of discharge and that in turn leads the limit that I have identified.

Can I just add one further basis, one for the textural basis for that construction? If your Honours - and your Honours I think saw this this morning, section 97(1) contemplates the detention will end at the conclusion of the taking and my short submission is that it could only do so if a person can, in fact, be discharged at the ultimate destination.

Now, finally on this point, some mention was made of what my friend, Mr Gleeson, referred to as the investigatory purpose and I understood it was said to follow from that that the investigatory purpose then enlivens some sort of remedial responses. There are two points to say as regards that: you do not see that identified as a purpose in the special case. The second point is that in no ordinary meaning of the word “investigation” does it include remedial responses, if that is in some way said to be an answer to our submissions regarding exorbitant jurisdiction.

I am moving now to non-refoulement. In terms of the - again I will address first as to what is before your Honours in the special case. It is our submission that question (1)(a) raises solely a question of the construction of section 72(4). It does not require your Honours to make any sort of decision as to the content or nature of Indian domestic law.

It is framed as a question inviting a decision on a limitation on power, and as your Honour Justice Hayne said, the words “whether or not” are to be understood as regardless. All we need as the factual basis for answering that question is that that appears at paragraph 8, and we say therefore that the question arises in a concrete factual context, and is not hypothetical.

FRENCH CJ: Assuming that against you, that section 72(4) is not constrained by Australia’s non-refoulement obligations, the answer to (1)(a) would be yes. Is that right?

MR LENEHAN: Yes, your Honour.

FRENCH CJ: Does that premise affect the rest of that question, or do the rest of the questions really turn on issues of statutory construction independent of the injection of the international legal obligations?

MR LENEHAN: It is the latter, your Honour. Can I stay in the happy universe where we might be right on that point? The basis of the submission put by Mr Merkel is that, as your Honours recall, Lauterpacht and Hathaway and the passages that Mr Merkel took you to from M70 indicate that legal protection is the reflex of Article 33, and that then leads you to both practical and legal protection being necessary to determine that the receiving country meets the requirements of Article 33. We would, therefore, say that the answer to question (1)(a) is no - that is a question of law. If we fail on everything else in the special case, in our submission, that would then involve the Court remitting that part of the matter in answering question (2) to determine whether the limitation was in fact met in this case.

Now, it is said by my friend, Mr Gleeson, that non-refoulement is, at most, a third-tier consideration, by which I understand him to mean it is a so-called permissive consideration. That seems to be largely put by reference to the asserted need for flexibility in challenging situations and at the bottom of that seems to lie the submission that it may be necessary to give that consideration relatively less weight than other more pressing considerations, but, of course, the short answer to that is that a requirement to have regard to a mandatory consideration tells you very little about weight. Weight, of course, is something in the realm of merits. So, that is not an answer to our asserted limit.

We can essentially reduce our construction argument on that issue, although we have other arguments that we rely on, to two points. First, as your Honour Justice Kiefel suggested in argument, the very flexibility on which our friends rely also turns the other way. It indicates that one is dealing with an ambulatory provision and so the object, scope and subject matter will be different depending upon its particular application.

Those of your Honours that sat in the Argos Case last Friday would recall the Right to Life decision [1995] FCA 1060; (1995) 56 FCR 50 at 84 in the reasons of Justice Gummow where he says a similar thing as regards the AD(JR) Act and other interlocking statutes. One of the particular applications to which the text refers, of course, is the Migration Act and that, we say, then brings into focus protection obligations.

The second short point which I say is as much as we need to rely upon to succeed in this part of our argument is that the principle of construction in Teoh and also the passage in SAAP that Mr Merkel took your Honours to yesterday is not disapplied merely because the Act happens to refer to and reflects in this case some international law obligations in its express words.

The principle from Teoh – and it extends, as our friends for the Commission have correctly identified, considerably further back – is formulated in quite strong terms. It is if the language is susceptible and, in my submission, section 74 simply does not cease to be so susceptible merely because references are made elsewhere in the Act to international law.

That then brings me to executive power. Mr Gleeson is quite correct that I was somewhat coy about Ruddock v Vadarlis yesterday. Your Honours will excuse me for that. It was my first appearance before a Full Bench of this Court and I say very, very respectfully that the decision is wrong. In terms of Mr - - -

HAYNE J: Those are submissions that are best made very firmly and very loudly, I think, Mr Lenehan.

FRENCH CJ: Very confidently.

HAYNE J: With absolute confidence.

MR LENEHAN: Perhaps at a later stage, your Honours. Your Honours, in terms of sovereign power, it is important to emphasise again that we are dealing with the power of the people exercised through representative and responsible government. Now, Mr Gleeson puts against us that the result of my submission is that from 1901 to 2001 there may have been no such power. That may be so, but that is the product of the people exercising their sovereign power not to have such a power.

In terms of what is said in Lim at page 30, in the passage from Cain that Mr Gleeson took your Honours to, they are plainly there dealing with the division between executive and judicial power – sorry, in the case of Lim they are plainly dealing with a division between executive and judicial power, and so your Honours cannot take too much from it because that is the focus.

In the passage from Cain and the emphasised part of that passage, it specifically referred to the depositories of executive and legislative power, and that, as I say, is the very question that arises in relation to this point. In terms of what is said in Bolton, we rely on that only by analogy, and the analogy in the other developments identified by Professor Zines that I referred your Honours to yesterday, that is a vibrant representative government suggest an evolution that goes the other way to that suggested by my friend, Mr Gleeson, relying on such things as UNCLOS.

In terms of what is said in Vadarlis at paragraph 180, and my heresy, we do not say that either Davis or Barton is to be doubted or is wrong. We simply say that special considerations apply as here where you are talking about coercive powers. In terms of paragraph 193, which Mr Gleeson correctly said I did not take your Honours to specifically, but only through the prism of his submissions, we do not say that the supreme or sovereign power of Australia lacks power to exclude aliens from entering. We do say that it is one that requires an exercise of legislative power.

Your Honour Justice French, just to conclude, asked if there had been a decision on section 7A of the Migration Act, in our very brief chance to look at it we think there is and we think it is one of your Honour’s decisions while on the Federal Court. The case, I am told, is Applicant WAIV v Minister for Immigration. It is unreported, but the medium neutral citation is [2002] FCA 1186, and the relevant passage is at 28 to 29.

That is all I want to say about executive power. I do not wish to repeat what my learned leader, Mr Merkel, said yesterday as regards abrogation and the contiguous zone, but that is what we say in response to Mr Gleeson’s submissions on that point. Those are our submissions in reply, your Honours.

FRENCH CJ: Thank you, Mr Lenehan. The Court will reserve its decision. The Court will adjourn until 10 o’clock tomorrow morning.

AT 3.52 PM THE MATTER WAS ADJOURNED