Document sought in FoI case purports to authorise possibly unlawful return of asylum seekers to Indonesia

This article is more than 3 years old

This article is more than 3 years old

The existence of a “pivotal” letter purporting to show the immigration minister’s authorisation of possibly unlawful asylum seeker turnbacks has been revealed in the closing stages of a long-running freedom of information case.

The case began in early 2014 when the then Customs and Border Protection Service refused a Guardian Australia freedom of information request.

The request, made by the Guardian Australia journalist Paul Farrell, sought access to ship logs and government orders relating to the government’s controversial asylum seeker turnback operations.

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Farrell took the matter to the information commissioner, who ruled one document could be partially released. But the department appealed to the Administrative Appeals Tribunal, which began hearings in August.

The case returned to the tribunal on Monday and Farrell’s lawyers immediately revealed they had become aware of a letter from the then immigration minister, Scott Morrison, to the then defence force chief, David Hurley, on 18 November 2013.

The document purportedly authorised asylum seeker turnbacks “to Indonesia”, something Farrell’s lawyers are arguing was unlawful before the enactment of the Maritime Powers Act in March 2014.

The Morrison document was never disclosed by the department as relevant during the FoI process. Its existence was only realised after Farrell’s lawyers noticed a reference to it in a separate document, which had been released by the department.

The tribunal’s deputy president, Dennis Cowdroy, said on Monday that the Morrison document was “prima facie” within the scope of the FoI request. He later said the document was “pivotal” to the case being considered by the tribunal.

Lawyers for the government asked for more time to consider whether it wished to make any additional arguments for the document to be exempted.

Solicitor Justin Davidson said Farrell’s lawyers were employing a “babushka doll strategy” in their quest for documents.

“What we have here is a sort of babushka doll strategy, where we produced one document, the applicant saw a reference to another document and said, ‘We’d like that document as well,’” he said.

Davidson said he would ask for the status of the new document to be considered urgently by the department.

The department is relying on two main arguments to refuse Guardian Australia access to the turnback documents. Their release would jeopardise Australia’s national security, it is argued, and would “disclose lawful methods or procedures” for combating people smuggling.

Farrell’s barrister, Tom Brennan, rejected both of those grounds during his closing submissions on Monday. Brennan has raised the possibility that the turnback operations themselves were unlawful before the enactment of the Maritime Powers Act.

He said the operations were unlawful because they took asylum seekers out of Australian waters and towards Indonesia’s territorial sea, possibly constituting another form of people smuggling, which is a criminal offence.

By raising such an argument, Brennan put the onus on the government’s lawyers to prove that the asylum seeker turnbacks were lawful.

“The applicant has not discharged his onus of proving that the method of turnbacks was lawful,” Brennan said. “The performance of enforced turnbacks to Indonesia involved, or very likely involved, the crime of people smuggling, by facilitating or organising the entry of persons to Indonesia.”

If it can be proved that the operations were unlawful, then the government cannot claim that the release of the documents would “disclose lawful methods or procedures” for combating people smuggling.

The government denies any notion that the turnback operations were illegal, but also argues that the tribunal does not need to really consider the issue.

Davidson argued that the tribunal should be considering whether the release of documents would harm current turnback operations, which were clearly lawful under the Maritime Powers Act.

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“We’re not saying that disclosure of these documents would damage operations in 2013, we’re saying disclosure of the documents would damage operations now,” he said.

He also denied turnbacks constituted an offence of people smuggling.

People smuggling, he said, involved the moving of people from one nation to another, whereas turnbacks “returned people from whence they came”.

He also argued that all of those involved in turnback operations were protected by statutory immunities contained in the Migration Act.

Cowdroy has adjourned the proceedings to a date to be fixed. Davidson will consult with the department about the Morrison document and then inform the tribunal whether any further hearing is necessary.