In his first column for Guardian Australia, our new legal editor at large says the handover of Sri Lankans at sea has taken this country into new legal territory

"Sometimes in difficult circumstances difficult things happen," Tony Abbott told us in his stumbling way at the commonwealth heads of government meeting (Chogm) in Sri Lanka in November last year.

He must have been inspired by Donald Rumsfeld's neat encapsulation of the post-invasion chaos in Iraq: "stuff happens".



Last week "difficult things" were a distant memory as the prime minister soothed us with the message that Sri Lanka "is at peace", even though it is "not everyone's idea of the ideal society".



For the Abbott government the importance of stopping boats of asylum seekers landing on our golden soil is a higher priority than protecting them according to international law.



The commander-in-chief of our militarised refugee response, Scott Morrison, is on his way to Sri Lanka this week to hand over two former Australian patrol boats to the navy of President Mahinda Rajapaksa. No doubt the ceremonial glad-handing will be accompanied by brass bands and fluttering flags. Sri Lanka is the frontline of our no-boats policy and it must be extended every courtesy, with care taken not to notice the torture and other abuses routinely heaped on the Tamil population.



Australia knows the situation on the ground in post civil-war Sri Lanka. It said so itself in November 2012 when it called for the elimination of "all cases of abductions and disappearances ... abuse, torture or mistreatment by police and security forces". That was expressed as part of the UN's regular human rights reviews.



In this context it's heartening that the French have come to the rescue with a word that expresses what in English requires a multiplicity of words – "refoulement".



Refoulement is the forcing back of people to their place of origin where they are expected to face persecution or threats to life and liberty on the basis of race, religion, nationality, political opinion or membership of a particular social group.



This is precisely what the Australian border protection authorities are engaged in right now. Morrison has confirmed today that 41 people – 37 Sinhalese and four Tamils – have been transferred at sea to the Sri Lankan authorities. This took place after a process of "enhanced" screening, which is an Orwellian word for four rudimentary questions, all done without independent oversight.

The circumstances of at least one other boat of 150 asylum seekers, including an unknown number of Tamils, is unknown. It is now understood, as a result of distress signals picked up by the New Zealanders, that there is also a third boat intercepted by Australia.



Until we know from the government details about those boats and their human cargo, Fran Kelly's question to Senator Eric Abetz is entirely justifiable: "Since when does our government disappear people?"



Australia has non-refoulement obligations under both the refugee convention and the convention against torture: "No State Party shall expel, return [refouler] or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."



It doesn't get more straight forward than that.



Those obligations also form part of our domestic law because that article from the torture convention is incorporated into the Migration Act. The legislation defines persecution as "serious harm ... systematic and discriminatory conduct".



Serious harm amounts to:



▪ a threat to the person's life or liberty;



▪ significant physical harassment of the person;

▪ significant physical ill-treatment of the person;

▪ significant economic hardship that threatens the person's capacity to subsist; and

▪ denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

There are no shortage of reports and studies that have identified those very circumstances as ones faced by Tamils in Sri Lanka today.



The Abbott government has taken us into a whole new territory as a result of disregarding Australian human rights obligations under international and domestic law. Conceivably, it opens the path to more high court challenges and embarrassment globally as a human rights pariah.



From the government the refrain is as predictable as it is tired. Morrison has said that he will "not allow people smugglers to try and exploit and manipulate Australia's support of these conventions as a tool to undermine Australia's strong border protection regime that is stopping the boats and the deaths at sea".



The flawed justification for saving lives at sea is that it's acceptable to return people – who have come into our care and to whom we owe obligations – to certain torture or harassment.



It hardly seems a fair swap.

