LIBERTY - BROADENING THE SCOPE

Friends, I have been reading, in part, of the High Court judges' finding on the so-called Maritime Powers Act (2013) [S169/2015, #13]. Some of you might have remembered that in 2014, in political heydays of Operation Sovereign Borders, the so-called Maritime Powers Act (MPA) was enacted by the Parliament. The Act allows the maritime officer(s) (AFP, Custom, Navy, etc) to be directly controlled by the National Security Council(NSC) of the Cabinet (Executive); enabling the officers to detain a person or persons -- on reasonable suspicion of breaking Australian laws -- onboard a vessel within Australian Contiguous Zone. The maritime officer would have power to take that person to "a place", ostensibly outside Australia. That power can be re-exercised as occasion requires, the length of detention will likely be determined by matters peculiar to the particular destination or destinations that is or are chosen. No specific Australian laws that would be in threat are being cited, such as the Migration Act of 1958, nor indicating any need to give regards to ICCPR, Geneva Refugee Convention and its Protocols; as long as the maritime officer satisfy that the person may likely to break the laws, the officer would have the power to detain and taken to "a place" other than Australia.

Then, there was a boat from India carrying group of Tamil asylum-seekers onboard came on as of mid June 2014. The NSC ordered the Tamils to -- "take back to where they came from" -- i.e. India. That LNP rhetoric didn't go well with the Indian authorities: those Tamils might as well have been, for long term, residing as displaced persons in India; but they will not have any official residential status. The Indian immigration refused disembarkation of those Tamils and, so therefore, they were taken back to Australia. This episode itself connotes a shameful display of incompetence of NSC and, undoubted arrogance of LNP Government under Tony Abbott.

The most interesting part in that HCA judgment has been that of by justices Hayne & Bell [#13]. Their Honours had been responding to the LNP Government's position that:

"153 The Commonwealth parties submitted that...it is necessary to recognise that, if, ..... the plaintiff had been taken immediately to a place in Australia, he would at once have been detained under s 189 of the Migration Act and would have been subject to the regional processing provisions of subdiv B of Div 8 of Pt 2 of that Act. ..... in these circumstances, the plaintiff should be held to have no claim to anything more than nominal damages."

The Government's assertion is that the arrangement for offshore detention, as it stands then and now, would have only allowed for the claims of "nominal damages". That has been rejected by their Honours.

"155 The submission of the Commonwealth parties implicitly assumed that damage is the gist of the tort of false imprisonment. It is not. Like all trespassory torts, the action for false imprisonment is for vindication of basic legal values: in this case the value long assigned by the common law to liberty from restraint, especially restraint at the behest of government. False imprisonment is, and long has been, actionable without proof of special damage. Hence, demonstrating that a plaintiff was unaware of the imprisonment, or for some other reason suffered no substantial loss, neither denies the availability of the action nor provides a defence to it. Such matters are relevant, if at all, only to the assessment of damages but do not, of themselves, require the conclusion that only nominal damages may be awarded."

We need to examine the content of above judgment carefully, at the back-drop of government's usual defence for offshore detention. To my observation, the Australian courts usually are not generous (i.e. very restrictive) on interpreting personal liberty. In most writings, the restraint on personal liberty is automatically equated only as the "detention". Others, slightly closer to values of liberty, has described as that of the person's rights, interests or legitimate expectations. This judgment, in a bit contrast to those others, has been saying "the false imprisonment (deprivation of liberty) could have happened without the proof for occurrence of special damage". And that, just because a person is unaware about his being under imprisonment, the government cannot claim there's no deprivation of liberty. Nor because the fact that a person suffered no "substantial" loss, the government could be using it for the defence of its false imprisonment, i.e. the restraint on personal liberty. This judgment certainly broadening the scope for "restraint on" or "deprivation of" personal liberty.

Friends, keep checking on the Bomana pages.
Cheers, NetIPR.

2014 Asylum-boat with Sri Lankans
https://www.smh.com.au/politics/federal/india-was-the-obvious-place-to-s...
CPCF s169/2015 HCA judgment
[#13] http://www.aus4iccwitness.org/legal-resources/20150128_s169-hca-judgment...
Bomana Pages
http://www.aus4iccwitness.org/node/84