The Australian government has argued its international obligations of non-refoulement – returning asylum seekers to countries they have fled in fear of persecution – do not apply to interceptions outside Australian territorial waters.

Government defence documents filed to the high court case examining the interception, procedure and treatment of more than 150 Tamil asylum seekers who left southern India in early June, also reveal that the decision not to allow the asylum seekers to be transferred to Australia was taken by the national security committee, tasked with “major international security issues of strategic importance to Australia” and chaired by the prime minister.



The government is arguing it holds the power to detain the asylum seekers – whose boat was intercepted in Australia’s “contiguous zone”, near Christmas Island – under the Maritime Powers Act.



The defence also concedes, as lawyers acting for the asylum seekers had argued, that the intercepted Tamil asylum seekers, being held at sea by a government border protection vessel, have been split up. But it says they are allowed three hours to move around the vessel in daylight.



It had previously been reported there were 153 Tamils on board the boat that left Pondicherry in Tamil Nadu, southern India, but the defence shows there were in fact 157.



The government denies the asylum seekers have not been given access to interpreters, arguing that three of them speak English and have acted for the rest of the group.



On Tuesday the immigration minister, Scott Morrison, flew to Delhi for meetings with India's external affairs and home affairs ministers, the Australian reported. It is expected they will discuss the fate of the 157 Tamils.

At a directions hearing at the high court on Tuesday parties were unable to agree, and were given until Wednesday to refile their draft cases.



Justice Kenneth Hayne had directed both sides to file the cases to the court by late Tuesday afternoon.

Throughout all the proceedings Hayne has ordered that both parties act more quickly and warned on Tuesday he was primarily concerned about the detention of the asylum seekers.

At one point Hayne asked counsel for Morrison to tell the court “how long these people have been aboard that ship”.

Haynes commented that “this has got to get to an end, enough!” and later added that both sides should “sort it out”.

It is likely the matter will be heard by the full bench of the high court – potentially within two weeks.

George Newhouse, one the lawyers acting for the asylum seekers, said outside court the case had now “distilled itself into three key issues”.

“Firstly, whether the government actually has the legal power to take people on the high seas, imprison them and dump them in a foreign country.

“Secondly, if they do have that power, whether the individuals have a right to be heard. Whether they have a right to say where they want to go and what the government should be doing with them.”

The final question, Newhouse said, was whether the government’s non-refoulement obligations could be waived if asylum seekers were intercepted outside territorial waters.