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High Court fails high seas detainees


Sri Lankan asylum seekers

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 contiguous zone.

The three dissenting judges thought the detention of the Tamils unlawful because the detention had commenced before the Australian government had secured authorisation from the Indian government for return of the asylum seekers. The majority judges thought the only result of such a ruling would be that people would be detained on the high seas for even longer, waiting until an appropriate destination could be found.  To avoid delay on the high seas, two of the dissenting judges suggested that the only lawful course, in the absence of an agreement with India,  would be for the asylum seekers to be brought to Australia (No chance of that!) or immediately taken to Nauru or Manus Island for processing (Thank you, your Honours, but are you the government?).  The matter is now somewhat academic. The Parliament when passing the Migration andMaritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act in December legislated that detention would be lawful even if the ultimate destination were undetermined, uncertain or changed.  The same case brought under the new law would probably result in a unanimous judgment in favour of the government.

The long term impact of this High Court decision is that academic argument about international law is now even less likely to impact on the interpretation and application of Australian law in relation to asylum seekers.  We are used to public disputation in which international lawyers and refugee advocates argue that Australian measures are contrary to the spirit of the Convention relating to the Status of Refugees, with government responding that Australian law complies with the letter of the Convention.  The recent laws passed by the Australian Parliament make it clear that Parliament is desirous of stipulating a strict code for dealing with asylum at the frontier.  In this week’s decision, the High Court has made it clear that Parliament is free to do that, and there is nothing the courts can do about it.  The matter was neatly summarised by Justice Keane:

Australian courts are bound to apply Australian statute law ‘even if that law should violate a rule of international law’. International law does not form part of Australian law until it has been enacted in legislation. In construing an Australian statute, our courts will read ‘general words ... subject to the established rules of international law’ unless a contrary intention appears from the statute. In this case, there is no occasion to invoke this principle of statutory construction. The terms of the Act are specific. They leave no doubt as to its operation.

All seven judges of the High Court basically took this approach. The Australian parliament has been so specific in codifying the law of asylum at the frontier that there is nothing for the judges to do except apply the letter of the law, regardless of the general principles of international law.  You may just as well be quoting the Catechism of the Catholic Church to them, as be submitting the learned opinions of international lawyers.

Given that both sides of politics are committed to stopping the boats, we need to find a better way than having to maintain the barbaric arrangements on Nauru and Manus Island and allowing government to run undercover turn backs and returns to Indonesia or wherever without adequate safeguards for asylum seekers, even if they no longer be in direct flight from persecution in their home country.  

To date, most refugee advocates have ruled out the possibility of working with government to formulate a plan for more decently being able to return asylum seekers to Indonesia which is the country most often transited by those trying to reach Australia for protection and an optimal migration outcome.  But unless this is done, Australian governments of both political persuasions will maintain Nauru and Manus Island, and they will return boats to Indonesia in questionable circumstances without any scrutiny or transparency.  We need to engage Indonesia, invoking the principles of international law which our government claims to be reflected in Australian domestic legislation.  We need assurances that asylum seekers returned to Indonesia will not be refouled to their home countries or to other places where they might face persecution, torture or other serious harm.  We would need similar assurances from India if we were ever to try to send Tamils back there again.

Indonesia is not a signatory to Refugees Convention, and it is not likely to be.  But it is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT).  It makes regular reports to the requisite UN bodies.  In 2008, the UN Committee Against Torture wanted assurances in Indonesian domestic law that refoulement would never be able to occur.  But the UN committee had no evidence of any particular case or alleged violation.  In August 2013, the UN Human Rights Committee published its most recent concluding observations on Indonesia.  This quite detailed report made no mention of any concerns relating to refoulement – either under ICCPR or CAT. 

Indonesia complies with the reporting provisions of CAT and ICCPR.  There are no confirmed reports of Indonesia wrongly refouling persons returned from Australia.   Indonesia is NOT and is not likely to be a signatory to the Refugees Convention.  Could the conditions ever be fulfilled which would warrant Australia returning asylum seekers to Indonesia provided only that Australia is satisfied that the asylum seekers are not in direct flight from persecution IN Indonesia?

My challenge to my fellow refugee advocates is this. In light of this week’s High Court decision, nothing is to be lost by trying to negotiate transparent agreements with Indonesia and India for the safe and dignified return of asylum seekers who are not in direct flight from persecution in Indonesia or India.  Until this is done, we will continue to violate the human rights of asylum seekers on the high seas and then in places like Nauru, Manus Island and Cambodia where our government wants to send them.  And there’s nothing we can do to change that in the courts, or presently, in our parliament.  Parliament is a cul de sac, and the High Court a dead end.   

Frank BrennanFrank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson professor at the Boston College Law School.

Topic tags: Frank Brennan, High Court, asylum seekers, Manus Island, offshore detention



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Existing comments

I am so sad that we are becoming less compassionate as a nation. Thank you, Fr Frank for all you have said. I would like to see the law changed .

Margaret Cusack | 30 January 2015  

Perhaps we also need to work more on a regional solution? India and Indonesia are not the only players; difficult as it is we need to develop a broad regional coalition to protect asylum seekers if our High Court is dead.

Paul White | 30 January 2015  

Sending people illegally back to Indonesia is another lazy cop out Frank. It is legal to come here and not legal to send people away. We have to make our own parliament uphold international law instead of dumping innocent people in a country where they have no legal rights.

Marilyn | 31 January 2015  

Well said Marilyn, asylum seekers commit no crime coming here; the majority are found to be genuine refugees; they are our responsibility, not Indonesia's and most certainly not Papua New Guinea's nor Cambodia's.

Paul | 31 January 2015  

No man is an island. And no country is sufficient unto itself. We are all like cells in the great Human Body of the Human Race. Each country is like a limb or organ in this Great Body, and each is becoming more and more dependent on cooperation with others. It might be a long time coming, but what is needed is a World Body to work towards ensuring that all countries and all individuals play their part in uniting for the common good of each and all.

Robert Liddy | 02 February 2015  

I am so ashamed to be an Australian because of the way our government treats refugees. I agree with Maryilyn - stop the boats is the most cruel, inhumane, uncompassionate policy - combined with the detention of people in places like Nauru,Manus Island and Christmas Island. As a Christian I add my voice to calls to treat refugees with compassion and to accept them into Australia rather than locking them up. What would Jesus do - can't remember him turning away anyone who asked for help.

David | 02 February 2015  

There is another solution. Accept Asylum Seekers in the same way as every other country which is a signatory. Why should we fob off our responsibilities to Asylum seekers on others? Why should we pretend to be the good guy whilst allowing, nay paying for atrocities offshore. Whether they walk here, fly here or come by boat. Australia is happy to participate as an aggressor in Iraq and Afghanistan - then we should be well aware of the brutality, distress and fear and persecution that results. Refugees have so much to offer Australia - we have so many industries who currently ship in 457 visas to get cheap labour. Offering humanitarian dignity to refugees, and fast processing would cost less than it does now. And what an investment that would be! This is a country made up of migrants it is supposed to be a Christian country - when will those values be expressed towards the most vulnerable people on our planet, who just want to live in safety.

Andrea | 02 February 2015  

Fr Frank. May I venture to suggest that the Tamils held for 4 weeks on the Australian Navy vessel were a sight better fed and safer than they were on the vessel that transported them in their bid to enter Australia. In your last paragraph today you refer to "... asylum seekers who are not in direct flight from persecution ...". Does not this immediately by definition disqualify them as asylum seekers? As far as I am aware India does not persecute and hunt down Tamils. I imagine that some Tamil terrorists have hopped across the strait from Sri Lanka into Tamil southern India to escape retribution from the Sri Lankan government for their deadly activities against Sri Lankan society. If so they have already reached asylum or sanctuary and their subsequent efforts to enter Australia are for personal reasons and a prize for which they are prepared to disobey the rules to their own advantage and to the disadvantage of those many genuine refugees with nothing who can't afford to pay their way illegally. I trust the High Court has it right even though it has failed to convince or dissuade Marilyn!

john frawley | 02 February 2015  

Once again Frank, thank you for your challenge to us all to use our combined energies to work beyond the limits of the formal 'cul de sacs' and 'deadends' and to sustain action and hope.

Maryanne Confoy | 02 February 2015  

..detention would be lawful even if the ultimate destination were undetermined, uncertain or changed. Would their Honours still agree if the destination were to be the gas chambers?

Eveline Goy | 02 February 2015  

It is abominable that both major parties are complicit in the ill-treatment of asylum seekers. Under the Coalition we see asylum seekers treated far worse than criminals.

Fr Frank Brennan is compassionate but a realist. With no hope of appealing to either Parliament or the High Court, he is suggesting the only way to assist asylum seekers who try to make it to Australia is transparent dialogue with Indonesia.

There is a world of difference between what is moral and what is lawful. What the Australian government has chosen to do, with the assent of most citizens, is to dehumanise asylum seekers. The laws have been made by self-serving politicians. Morality is the victim. Activists can keep on trying to touch the consciences of politicians and citizens. God knows how long that will take, if ever. In the meantime Frank is presenting the only practical assistance activists can hope to achieve.

Anna | 02 February 2015  

If Australia is flouting the international law is there not an organization, e.g. the Catholic Church, that could mount a case in the International Court to at least bring this Government to account in the eyes of all other compassionate countries, which are doing the right thing by displaced persons.

Paul | 02 February 2015  

So we need to change the government to change the laws so that they are in accordance with international law. It's over to us now, since current Australian law isn't being violated. That's a long-term project - what's the short-term hope for the people involved now?

Joan Seymour | 02 February 2015  

John Frawley’s contribution contrasts with the rest of the submitted comments above. If he is right, then the others are pretty much discredited. Why does nobody answer him?

Arnold Jago | 03 February 2015  

John Frawley, there are no rules to comply with when one is fleeing persecution.

Lynne Zahra | 03 February 2015  

A good question Arnold. Why do none of the pro-asylum-seekers, including Frank himself, not refute John Frawley’s points? The simple answer is that they can’t. John has made the valid observation that the 157 Tamil asylum-seekers had already escaped persecution when they embarked at Pondicherry, in India, for their trip to Australia in June 2014. On being sent back to India they will most likely return to the Tamil Nadu region where 60 million Tamils already live and where many are likely to have ancestral kin links going back generations. They had escaped whatever persecution they had supposedly been experiencing in Sri Lanka when they reached India. The only possible qualification to this view is whether any of these Tamils were former Tamil Tigers. If they were then India may well be returned to Sri Lanka. (Bear in mind that Indian PM Rajiv Gandhi and 25 other Indians were killed in a bomb blast set of by a Tamil Tiger woman in 1991). Initially any such Tamils had already escaped persecution on reaching India. Had they not tried to embark for Australia they may well have been able to continue living in India undisturbed. The only question is how far Australia is obliged to protect the human rights of ex-terrorists by giving them asylum in Australia - though I suspect few if any of the 157 Tamils would be in that category. It would also be interesting to know how many of these Tamils were Indian as opposed to Sri Lankan Tamils.

Dennis | 04 February 2015  

A person can still be an asylum seeker even though they are no longer in direct flight from persecution. Over the last 20 years, Australian governments (of both political persuasions) have become more circumspect in considering the plight of asylum seekers transiting Indonesia and then coming on to Australia by boat. In the past, our government was prepared to presume that anyone arriving in Australia was still in direct flight from persecution. That presumption was dropped once the number of boat people started to escalate, especially given that the boat people were no longer from Vietnam or the region, but from places likes Afghanistan, Iraq and Iran. The Australian government started to distinguish asylum seekers continuing their journey in direct flight from persecution from those other asylum seekers who, though provided a modicum of protection, processing and promise of a long term durable solution, decided to engage in secondary movement from Indonesia to Australia. Asylum seekers who arrive in Indonesia nowadays are often not satisfied with the level of protection offered them or with the standard of the assessment made of their refugee claim. Many of them would also prefer permanently to settle in Australia. As a signatory to the Refugees Convention, Australia undertakes not to impose any penalty on any asylum seeker ‘on account of their illegal entry or presence’ provided only that the asylum seeker is ‘coming directly from a territory where their life or freedom was threatened’. But what if their life or freedom was not threatened in Indonesia (or in the case of the Tamils, India)? This remains the legal, political and moral conundrum. There are those who argue morally that we should presume that every asylum seeker who arrives in Australian waters is still coming directly from a territory where their life or freedom was threatened and that we should grant every asylum seeker the right of entry to Australia in order to provide them with assured protection, robust processing and permanent residence should they be proved to be a refugee. Many of those convinced of these two moral claims discount the moral significance of the loss of lives at sea and of the increased number of persons likely to arrive seeking such an outcome, thereby reducing the number of migration places made available for other persons in humanitarian need but who have no access to funds or persons to get them to Australia. I appreciate the moral boldness and simple generosity of those who say, ‘Let them come. Welcome them with open arms.’ In the end, I suspect they are well motivated citizens inspired by the vision of a borderless world. Such a vision to me is more suggestive of heaven than earth. Over the next 20 years, I think we need to do much more to enhance protection in our region, especially ensuring that asylum seekers from faraway who arrive in Indonesia will be assured protection, processing, and a durable solution. I do not think this includes all of them being resettled in Australia. And yes, I think we should always hold out the welcome mat to those arriving on our shores in direct flight from persecution.

Frank Brennan | 06 February 2015  

Really Frank? While appreciating the ‘simple’ generosity of those who would welcome refugees with open arms you suspect we are motivated by visions of a borderless world suggestive to you more of heaven than of earth? Pie in the sky perhaps? Well, rather than heaven, let’s think of it as the next life, the preparation for which is the reason we have been given this one. To that end, I distinctly remember being taught in Catechism classes, we strive to prefigure this one in anticipation of the one to come. And for the life of me I cannot imagine that borders will feature in the next life so I’m blowed if I can see anything pie in the sky in viewing this world as borderless. The fact is that Australia is not ours to do with as we like, we are merely its stewards charged with the responsibility of directing it to its eternal end which includes using it to welcome the stranger and offer succor to the afflicted. As to our discounting the loss of life at sea and the ‘genuine’ refugees who miss out as a result of those arriving unannounced, that, to borrow Marilyn’s phrase, is still a lazy cop out. Clive Palmer has the solution to the drownings: give them a plane ticket and assess their claims here in Australia as expeditiously as possible; if they are found not to be genuine refugees, send them home; if they are genuine, either offer them a place here or request another signatory to the refugee convention to take them. Moreover, if Australians are prepared to tolerate gluttons like Clive Palmer, and the many others of his ilk, in their midst then obviously adequate resources are available to accommodate both groups of refugees. In response to John and Dennis who are dubious of those Tamils who have managed to flee Sri Lanka for India, while it is true that they are safe from immediate danger and that the Indian government does not return them, it is also true that India provides them with no more than minimal support. Estimates are that some 100,000 to 160,000 Sri Lankan Tamils reside in between 115 and 130 refugee camps scattered throughout Tamil Nadu. Some have lived there for up to 10 years, often in appalling conditions, and as India is not a signatory to the refugee convention and is unwilling to offer them permanent status, Sri Lankan Tamils have no reasonable prospects of a decent future there. So, knowing that Australia is a signatory, they attempt the journey here, not with a view to becoming disgustingly wealthy like the Clive Palmers Australians are happy to accept, but simply for a better life for themselves and their children. Yes, those detained by the Australian Navy were a sight better fed than they were on their refugee vessel – they were also a sight better fed than they were in the squalid camps they had fled which is the reason they were on the vessel in the first place.

Paul | 08 February 2015  

No Paul/Marilyn, it’s not a “lazy cop out” to chastise the asylum-seeker lobby for ignoring lives lost at sea or the numbers of genuine refugees (i.e. those subsisting in Middle Eastern camps) when pushing their pro-asylum-seeker agendas. It’s a very real and valid point and one which the ASL have yet to convincingly refute. 1200 dead people, up to 50,000 desperately needy people were denied sanctuary in Australia from 2008-13 because the ASL managed to have the Howard government’s border protection policies scrapped. What is more, much evidence suggests that many of these asylum-seekers are anything more than self-selecting economic migrants – unlike those Australia is now starting to let in from refugee camps, not to mention women at risk of brutal persecution in these countries. Their need for refuge is obvious and 100 per cent genuine. Frank lauds the “simple generosity” of those who want to let everyone in etc. One could perhaps be more beguiled by such apparent open-heartedness of such people if they also displayed the same compassion for the homeless millions in ME camps who have fled for their lives in the face of ISIS barbarity. And such do-gooders would be even more convincing if they were also demanding that Australia’s humanitarian intake be lifted to 25,000 or even 30,000 with the same passion as they defend Manus Island detainees and their calculated attempts to emotionally blackmail us into giving them asylum. As always the ASL and the PC luvvies who support it are highly selective in their compassion, preferring to bestow it on asylum seekers/economic migrants than those in real need. Finally, the Tamils in Indian refugee camps: How many of those from such camps were able to embark from Pondicherry for Australia? It’s hard to believe that their conditions of detention are so onerous that they can leave these camps and set sail for Australia when they want. And as for Clive Palmer’s suggestion – well that doesn’t deserve serious comment. The administrative, legal and judicial problems it would produce don’t bear thinking about.

Dennis | 10 February 2015  

Each time I encounter the thoughts of Frank Brennan the depth of understanding in me grows concerning the Ratlines, the conduit through which Nazi war criminals were enabled to escape from justice to live free in various countries in South America. There must have been people of like mind who could exercise Jesuitical casuistry to allow such aiding and abetting of the Shoah and the instigation of a world war. Ordained Catholics did this and used Vatican identity papers. Our earthly actions are always inevitably choices of the lesser of several evils, not one right and all the rest wrong. More affluent and educated individuals desirous of economic benefit utilised money and clandestine methods to come here without any attempt at prior arrangement or negotiation. They sought by illegitimate means to take places reserved for and much more needed by destitute refugees in numerous parts of the world and whose plight we Australians and our elected representatives hold in high importance with the intention of accepting them in orderly and safe fashion.

Phillip Chalmers | 10 February 2015  

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