Operation sovereign borders and interdiction at sea: CPCF v minister for immigration and border protection

This article critically examines the inter-related public law and international law matters before the High Court of Australia in CPCF v Minister for Immigration & Border Protection (2015) 89 ALJR 207; [2015] HCA 1. The case concerned the extra-territorial maritime interdiction of asylum seekers intent on seeking protection in Australia. The article explains, and critically examines, the reasoning of the Court in respect of the validity of the decision to deprive asylum seekers of their liberty for nearly a month, in the course of attempting to return them to India. The analysis demonstrates that the High Court's decision was not a ringing endorsement of the Commonwealth's interpretation of its public law powers and international law obligations; rather, the majority decision turned on the agreed (and limited) facts of the Special Case. Notably, three judges cast doubt on the correctness of the contentious decision in the Tampa case (Ruddock v Vadarlis (2001) 110 FCR 491), and several judges, including the Chief Justice, either did not embrace or expressly rejected the Commonwealth's restrictive versions of its international refugee law obligations