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