Constitutional Law - CPCF v Minister for Immigration and Border Protection

[Lizzie]

Hi everyone,
I've got an Australian Constitution question regarding the 2015 case of CPCF v Minister for Immigration and Border Protection specifically relating to question three of the case. The question reads:

Did the non-statutory executive power of the Commonwealth authorise an officer of the Commonwealth to:
(a) prevent the plaintiff from entering Australia;
(b) detain the plaintiff for the purposes of taking the plaintiff to India?

The non-statutory executive power of the Commonwealth as I understand it refer to the prerogative powers but as the Maritime Powers Act was the authorising legislation the High Court found it unnecessary to answer the question above.

I'm curious as to what you all may think about it

 

[Sophea]

Hi Lizzie,

I don't know a lot about this case, but from what I do know, the applicant argued that the Commonwealth’s executive power to detain and return asylum seekers outside of Australian waters was limited by customary international law which prevented Australia returning the asylum seekers. The Commonwealth on the other hand argued that its executive power and its statutory power under the MPA support its actions.

As you have stated, the majority held that the detention was authorised by the Marine Powers Act so it wasn't necessary to decide whether it was also authorised by Commonwealth non-statutory executive power. Hayne, Kiefel & Bell JJ (minority) found that the detention and removal could not be authorised under the non-statutory executive power of the Commonwealth.

I am not overly familiar with the customary international laws which mitigate the Cth's exercise of its executive powers however, and therefore not in a position to form an opinion on what you have asked. However if you are trying to form an argument for an essay or something, I would check out what customary international laws the application was referring to and determine whether or not they had a valid argument. I would also read up on the minority's reasons for believing that the detention and removal could not be authorised by executive power. This will at least lead you down the right path. The fact that 3/4 judges felt that the exec power could not authorise the detention suggests that there may be something in the applicant's arguments.