It took a High Court case to get the government to admit what it had
refused to acknowledge to the Australian public – that it is holding 153
asylum seekers on the high seas.
The government has over-reached by its whatever-it-takes treatment of
two boats of Sri Lankans, and in so doing has invited a fresh barrage
of criticisms of its asylum policy. Whether this ultimately matters to
it will depends on the outcome of the legal case.
Its hubris landed it in court. When the boats were intercepted (and
couldn’t be turned around) the people could have been taken to Christmas
Island and from there to Manus Island or Nauru. Or perhaps the
government could have bypassed Christmas Island for one of the foreign
But the government couldn’t bear to have its mantra – “for six months
now we haven’t had a successful people smuggling venture” -
So it undertook cursory long-distance processing, transferred one
boatload to Sri Lankan authorities and presumably was trying to do the
same with those from the second boat (most or all Tamils, who sailed
from India) when refugee advocates resorted to the law.
In Tuesday’s High Court hearing the government undertook not to
return the people to Sri Lanka without providing 72 hours written
notice, so the case is proceeding now at a more leisurely pace.
Events have come together in something of a perfect storm.
As the court proceedings unfolded in Australia, the 41 already
returned were being dealt with in a Sri Lankan magistrate’s court.
Journalist Jason Koutsoukis progressively tweeted
from the Sri Lankan proceedings, reporting that five organisers of the
boat had been remanded, with the others bailed. The passengers he spoke
to said they were economic refugees.
On Wednesday Immigration minister Scott Morrison is in Sri Lanka – to
attend the commissioning of patrol boats from Australia - where no
doubt he’ll be the centre of an awkward media circus.
The United Nations High Commissioner for Refugees has said it is
“deeply concerned” by Australia’s return of the 41, as well as about the
fate of the 153. It questioned the “enhanced screening procedures” used
to deal with the 41. Without further information it could not confirm
whether they were in accordance with international law, it said. But
“UNHCR’s experience over the years with shipboard processing has
generally not been positive. Such an environment would rarely afford an
appropriate venue for a fair procedure”.
Also, “the principle of non-refoulement (the prohibition on return to
threats to life or freedom) in the 1951 Refugee Convention and more
broadly under customary international law is clear: it applies wherever
an asylum-seeker is found and to whatever manner the expulsion or return
is carried out, including during interception and other sea
More than 50 law scholars from 17 universities also criticised the
procedures and said that holding asylum seekers on boats in this way
“amounts to incommunicado detention without judicial scrutiny”. Human
Rights Commission president Gillian Triggs believes international law
would require “a fairer process” than “enhanced screening” with its
The Abbott government operates on the principle that it simply
declares it is obeying international law. “What we do on the water is
consistent with our legal obligations,” the Prime Minister said on
Tuesday. That is the proposition now being tested.
Those acting for the asylum seekers have questioned whether the
migration act allows the government to hold the people, argued that the
enhanced screening process does not afford them natural justice, and
disputed the executive’s power to refoule them.
The government has told the court the people were intercepted in
Australia’s contiguous zone, not in its territorial waters so they were
not entitled to claim protection under the migration act. It says it is
acting under the maritime powers act which allows a person to be
detained and taken “to a place outside the migration zone, including a
place outside Australia”.
One immediate issue is what the government will do now. It hasn’t
given any undertaking to provide notice if, for example, it decided to
unload the people on Manus or take them to Nauru. That would solve an
immediate problem but represent an “arrival”, of sorts. Sources thought
it was unlikely it would try to get India to take them back. Keeping the
people (who include children) floating about at sea in a Customs vessel
is difficult if the case goes on a while.
The government believes that all that really matters to the public is stopping the boats, not how it is done. Tuesday’s Essential poll
has 41% (up 2% since March) saying its handling of the issue of asylum
seekers arriving by boat has been good, while 35% (down 3%) think it has
If the government is legally vindicated its hubris will reach fever
pitch. If not, it will have yet again been thwarted on asylum policy by
the High Court, which recently rejected its attempt to deny permanent
protection visas (which Morrison is now working to get around).
Meanwhile, 153 people have become pawns, as the government tries to
avoid a loss. How different from when, in Labor’s time, we had all that
(faux) concern from the Coalition about the human rights of asylum
seekers the then government wanted to send to Malaysia.