Australia says its obligations to asylum seekers do not apply outside its waters
Documents tabled in high court reveal national security committee decided not to allow 157 Tamils to transfer to Australia
The Australian government has argued its international obligations
of non-refoulement – returning asylum seekers to countries they have
fled in fear of persecution – do not apply to interceptions outside
Australian territorial waters.
Government defence documents filed
to the high court case examining the interception, procedure and
treatment of more than 150 Tamil asylum seekers who left southern India
in early June, also reveal that the decision not to allow the asylum
seekers to be transferred to Australia was taken by the national
security committee, tasked with “major international security issues of strategic importance to Australia” and chaired by the prime minister.
government is arguing it holds the power to detain the asylum seekers –
whose boat was intercepted in Australia’s “contiguous zone”, near
Christmas Island – under the Maritime Powers Act.
The defence also concedes, as lawyers acting for the asylum seekers had argued,
that the intercepted Tamil asylum seekers, being held at sea by a
government border protection vessel, have been split up. But it says
they are allowed three hours to move around the vessel in daylight.
had previously been reported there were 153 Tamils on board the boat
that left Pondicherry in Tamil Nadu, southern India, but the defence
shows there were in fact 157.
The government denies the asylum
seekers have not been given access to interpreters, arguing that three
of them speak English and have acted for the rest of the group.
Tuesday the immigration minister, Scott Morrison, flew to Delhi for
meetings with India's external affairs and home affairs ministers, the Australian reported. It is expected they will discuss the fate of the 157 Tamils.
a directions hearing at the high court on Tuesday parties were unable
to agree, and were given until Wednesday to refile their draft cases.
Justice Kenneth Hayne had directed both sides to file the cases to the court by late Tuesday afternoon.
all the proceedings Hayne has ordered that both parties act more
quickly and warned on Tuesday he was primarily concerned about the
detention of the asylum seekers.
At one point Hayne asked counsel for Morrison to tell the court “how long these people have been aboard that ship”.
Haynes commented that “this has got to get to an end, enough!” and later added that both sides should “sort it out”.
It is likely the matter will be heard by the full bench of the high court – potentially within two weeks.
Newhouse, one the lawyers acting for the asylum seekers, said outside
court the case had now “distilled itself into three key issues”.
whether the government actually has the legal power to take people on
the high seas, imprison them and dump them in a foreign country.
if they do have that power, whether the individuals have a right to be
heard. Whether they have a right to say where they want to go and what
the government should be doing with them.”
The final question,
Newhouse said, was whether the government’s non-refoulement obligations
could be waived if asylum seekers were intercepted outside territorial