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AUSTRALIA

High Court fails high seas detainees

  • 02 February 2015

It is high time Australia and Indonesia sat down at the table to negotiate the terms for safe and orderly return of unvisaed asylum seekers heading to Australia by boat. 

Until this is done, we Australians will continue policies both doing untold harm to asylum seekers waiting forever on Nauru and Manus Island, and risking the safety and dignity of those being returned to Indonesia without adequate safeguards.  Until this is done, this toxic issue will continue to poison our politics and demean our courts, which are unable to deliver justice according to law.

Scott Morrison had a thumping big win in the High Court on Tuesday.  It is true that the bench split 4-3 on a couple of issues.  But overall, the Abbott government will be feeling vindicated by its ruthless approach to stopping the boats.  All seven High Court judges have made it clear that there is next to nothing that can be done in the courts to question the government’s approach.  It has got to the stage that it is lawful, acceptable to government, and hardly a matter of concern to the Australian community that 157 asylum seekers, including children, can be kept in windowless detention on an Australian vessel for a month on the high seas in the Indian Ocean.  

There is no legal impediment to stopping the boats.  Once an asylum vessel enters Australia’s contiguous zone (24 nautical miles from landfall, including Christmas Island), Australian maritime officers acting with authority under the Maritime Powers Act may detain any persons on the boat without a visa and take them to a place outside Australia.  The only requirement is that the maritime officers ‘be satisfied, on reasonable grounds, that it is safe for the persons to be in that place’.  

In this case, the National Security Committee of Cabinet instructed the maritime officers to take the Tamil asylum seekers back to India where they had come from, having sailed on an Indian vessel.  The court ruled that it was irrelevant that the maritime officers were acting on instructions.  In fact, it was important that they were following instructions through the chain of command with responsibility ultimately resting with ministers of the crown elected by the people and answerable to parliament.  The court also ruled that there was no need for the maritime officers to give asylum seekers an opportunity to be heard before removing them from the Australian
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