The secrecy that shrouds Operation Sovereign Borders is designed to foil the law more than frustrate people smugglers. This goes way back. Ever since Australia began its battle to stop the boats nearly 40 years ago, Canberra has tried to place the campaign beyond the reach of lawyers and the courts.



The law is the enemy within. That lawyers have won big victories along the way makes governments try even more ruthlessly to sideline them. The deep instinct of both Labor and the Coalition has been to battle the boats with as little interference as possible from wigs, gowns and the courts.

The crude strategy in the 1990s was to exile boat people to remote desert camps as far as possible from the lawyers of Perth and Adelaide and Melbourne. That hasn’t changed. Now we send them even further for the same purpose, to Manus and Nauru.

The Migration Act, as thick as an old-fashioned phone book, is always being tinkered with to try to keep the business of beating back in the hands of governments alone. Defeats in the high court have never deterred ministers for immigration. They keep tinkering.

Secrecy works best. The harder it is to know what’s happening on the Indian Ocean, the tougher it is for lawyers to get traction. So the Abbott government has invented the notion that “on-water” matters can never be revealed and the minister, Scott Morrison, now says he will only comment on “significant” events, which don’t include the sensational events of this week.

This government isn’t a pioneer. The Tampa operation was designed by the Howard government with exquisite care to prevent reporters and lawyers learning what was happening on the Norwegian freighter in that great maritime standoff more than a decade ago.

The SAS was sent out to the ship not because those Afghans were violent but because the military had no legal obligation to bring the refugees ashore, no authority to receive requests for asylum and could block public scrutiny and lawyers from making contact with clients on the deck.

Tactical errors lawyers made then are not being repeated now. They have gone straight to the high court rather dally in the federal court. And this time they will have instructions from named clients, something that proved impossible – and highly damaging to their case – back in 2001.

But the high court will be dealing with the same question the federal court stumbled over back then: what executive authority does the commonwealth have to send refugees trying to reach Australia by sea off to other countries?

The veil of secrecy having been lifted on Tuesday afternoon by the high court, we know the boat was stopped in the contiguous zone: the 12 nautical mile zone beyond Australia’s territorial waters. There seems little question that the commonwealth has the authority to repel a refugee boat from that zone.

But does Australia have any right to then take those refugees to another country – to Sri Lanka, Manus or Nauru? The commonwealth is arguing that because neither the Migration Act nor the Maritime Powers Act applies on the high seas, Australia can do what it likes.

That’s not the view of leading maritime lawyers like Tim Stephens of Sydney University. “The only thing we can really do is repel a boat,” he told Guardian Australia. “But what is the government’s legal justification for returning asylum seekers to their persecutors?

“We need to see the full facts and the government’s advice. If the government thinks it is on strong ground, we should be told what those grounds are.”

We also learned on Tuesday that the asylum seekers are now in the hands of Customs. “For the most part the navy is a paragon of virtue in terms of following the law very assiduously,” said Stephens. “The same can’t necessarily be said of Customs.

The problem, according to David Letts, a naval officer for 30 years and now an academic at the Australian National University’s College of Law, is Customs’ understanding of the international law of the sea – not that the officers of either service out in the Indian Ocean can refuse to obey orders they believe to be unlawful.

“The question of lawfulness will ultimately be decided for the government by the Attorney General’s Department. That’s the role of that agency.” Does he find that comforting? “Not always.”

Letts is one of many maritime lawyers who have been calling for the government to reveal what it sees to be the legal basis underpinning Operation Sovereign Borders. “The game is up. What you are doing is legally questionable. It’s time to end the secrecy.”

Not yet. With almost heroic defiance, the acting minister for immigration, Julie Bishop, has issued a statement: “The government provided the high court with the information it requested. However, in accordance with the policy established by the Operation Sovereign Borders joint agency taskforce commander, the government will not provide commentary about on-water matters under Operation Sovereign Borders.”