Excluding Procedural Fairness: CPCF v Minister for Immigration and Border Protection [2015] HCA 1

Modern examples of successful exclusion of the rules of procedural fairness are relatively rare. An interesting recent example is  CPCF v Minister for Immigration and Border Protection, [2015] HCA 1, a typically lengthy and thorough decision of the High Court of Australia. There are very useful summaries available on the University of Melbourne’s Opinions on High blog and the University of Adelaide’s Public Law Blog.

Last June, a ship set sail from India with 157 Sri Lankans of Tamil ethnicity aboard. They intended to seek asylum in Australia. At the edge of Australia’s territorial waters, they were met by an Australian customs ship. Eventually the passengers were taken aboard the Australian ship which, under direction from the federal executive, set sail for India. Negotiations with the Indian government were unsuccessful and the passengers were eventually disembarked into immigration detention on the Cocos Islands. This process took about a month.

One of the many questions stated for resolution by the Court was whether any obligation of procedural fairness was owed to the passengers when they were brought aboard the Australian vessel. It was argued, quite plausibly, that some sort of hearing should be given, because the individuals might be able to provide information about final destinations that would be dangerous for them. For example, even if they were not to be disembarked in Australia, there might be good reason not to send them back to India but to another country instead.

Section 72(4) of the Maritime Powers Act allows maritime officers to “take [a] person” to “a place outside Australia”. Section 74 provides: “a maritime officer must not place or keep a person in a place, unless the officer is satisfied, on reasonable grounds, that it is safe for the person to be in that place”. The maritime officers were acting under the direction of the Minister in consultation with other members of the executive (see e.g. para. 38, describing the direction as “decisive”), which was “permissible” in this particular context (at para. 364, per Gageler J.).

It was also fatal to the procedural fairness claim: “there was no occasion under the statute for a maritime officer to consult with the plaintiff as to the destination to which he was to be compulsorily removed” (at para. 500, per Keane J.). As French C.J. described it, there was “no appropriate administrative framework to afford…a meaningful opportunity to be heard” (at para. 52). While “the obtaining of basic information from the passengers may be a necessary incident of compliance with the requirement of s 74 in particular circumstances, it is not a matter which goes to power under the rubric of procedural fairness” (at para. 53, per French C.J.). In general, any discretion the maritime officer might have had was pre-empted by the directions from on high (at para. 501, per Keane J.). The requirements of procedural fairness are “essentially practical” and dependent on “the legislative framework and the circumstances of the particular case” (at para. 306, per Kiefel J.).

Plainly the factual context of the case — in particular, the ministerial directions — was crucial to the result. The Court seemed to accept as a general proposition that some procedural fairness would be required before disembarking the passengers under s. 74. This poses some difficulties for the conclusion that procedural fairness was impliedly excluded as to the s. 72(4) power. For instance, Gageler J. said “it would be incongruous for the common law to imply a duty on a maritime officer to afford procedural fairness as a condition of the exercise of a maritime power” (at para. 368). But affording an audience would be no less practical on Indian shores than it would be on the high seas. It would perhaps be more plausible to say that ss. 72(4), 74 and related provisions have to be read together, as providing a complete code regulating the removal of would-be immigrants from Australian waters (see paras. 306-307, per Kiefel J. and 371-372, per Gageler J.). Given the importance accorded to the ministerial directions, the decision seems to rest on a nexus of statutory language and executive action that simply rendered procedural fairness inappropriate at the moment of detention.

Contributors to the University of Adelaide workshop on the case found the procedural fairness conclusion “surprising”:

…in light of the Court’s sustained commitment to protecting procedural fairness over the last few decades. The Court did not appear to regard the decision as one that affected any relevant rights, interests or legitimate expectations. We were puzzled by the Court’s focus, in this respect, on the fact that the plaintiff had no right to enter Australia. This is certainly true, but surely the plaintiff had an ‘interest’ in the duration of the detention and their ultimate destination?

Ultimately, whether one agrees or not with the Court depends, first, on whether one reads the provisions as forming a complete code or as distinct powers the exercise of which may provoke different concerns at various points and, second, on whether procedural fairness was truly impractical in the circumstances. On the second point, one might think that traffic can move up as well as down a chain of command. The maritime officers surely could and surely did report information to their superiors about what was happening on the high seas. If so, they could presumably also report any conversations with their detainees. As Gageler J. acknowledged:

Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other…Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances (at para. 367).

Some minimal standards of procedural fairness, involving discussion between the officers and the detainees, would perhaps not be so impractical after all.

Readers may also be interested in an excellent recent article by Matthew Groves, “Exclusion of the Rules of Natural Justice” (2014), 39 Monash University Law Review 285. He writes at the end that cases of exclusion by necessary implication “appear to depend so heavily on their particular circumstances that they do not yield a clear general principle” (p. 318). This case is presumably another example to add to that list.

This content has been updated on April 20, 2015 at 14:44.