This week in the High Court of Australia

This week the High Court will hear argument in two cases.

On Tuesday, 14 October 2014 the High Court will hear CPFC v Minister for Immigration and Border Protection, a challenge to the power of the Commonwealth to remove Tamil Sri Lankan asylum seekers intercepted outside of Australia’s territorial waters but within its contiguous zone. Section 72 of the Maritime Powers Act 2013 (Cth) makes provision for the detention and movement of persons on a vessel detained by maritime officers (which include members of the Australian Defence Force and Customs officers).  It provides that a maritime officer may take such persons to a place in the migration zone, or outside the migration including to a place outside of Australia. On 1 July 2014 the National Security Committee of Cabinet decided that the detainees should all be taken to India.  This was in accordance with a government policy of intercepting and removing from Australian waters any person without a visa who attempts to enter Australia by boat.  The detainees remained aboard the Australian vessel while it travelled through international waters and later waited near India while diplomatic negotiations took place.  The Minister then decided to take the detainees into Australia’s migration zone instead of to India.  The detainees remained aboard the Australian vessel until 27 July 2014, when they were taken to the Cocos (Keeling) Islands where they were detained under s 189(3) of the Migration Act 1958 (Cth). The plaintiff challenges the lawfulness of his detention outside of Australia and Australia’s contiguous zone, and seeks damages for wrongful imprisonment.  One important aspect of the challenge is whether or not the Commonwealth has the power to detain for the purposes of removal to another country in contravention of Australia’s international law obligation of non-refoulement, an issue the Federal Government is seeking to render moot by proposed amendments to the Maritime Powers Act.

On Thursday, 16 October 2014 the High Court will hear argument in Henderson v State of Queensland.  In April 2002, police searched a motel room at which the appellant was staying and found illegal drugs in the possession of acquaintances of the appellant’s who were the focus of the search.  Police also searched a car hirted by the appellant in which they found a small quantity of cannabis, along with almost $600,000 cash.  The appellant claimed to have obtained the money by selling a collection of antique jewellery inherited from his father.  Police obtained a restraining order against the money under the Criminal Proceeds Confiscation Act 2002 (Qld), having satisfied the Supreme Court that they had reasonably suspected that the money was property of a person who had engaged in an activity that constituted a serious criminal offence.  In subsequent proceedings to avoid forfeiture of the cash to the State, the appellant had to establish under s 68(2)(b) of the Act that the money had probably not been illegally acquired.  The appellant’s evidence was that his father gave him a boxful of jewellery and told him to use it to look after his siblings.  The appellant and three of his siblings all gave evidence that their father had told them that he had a collection of jewellery that had been given to an ancestor of his as a reward for services provided to Russian nobles (this would have occurred din the late 1800s or early 1900s).  After his father’s death the appellant obtained a valuation of the jewellery, which estimated it to be worth between $600,000 and $700,000 wholesale or $1 million retail.  The appellant then sold the jewellery for $620,000 cash to a man who was later untraceable, as his details had been written only on a $50 note which had since been exchanged (either by the appellant or by the police when the money was banked).  The valuer named by the appellant was unfit to give evidence, but sketches of the jewellery made by him were examined by a valuer called by the State, who gave evidence that the jewellery in those sketches would have been made after 1950. Justice Lyons held that the appellant had failed to prove that the jewellery had not been illegally acquired, as he was unable to establish how his father had come to possess it. The Queensland Court of Appeal dismissed an appeal, holding that the appellant could not succeed by raising an absence of evidence as to how his father had acquired the jewellery, as the Act cast the onus on the appellant to prove that relevant property had not been illegally acquired.  He therefore had to prove both that the jewellery was from an era when it had allegedly come into the family and that his father had not unlawfully acquired it.