This article is more than 5 years old

This article is more than 5 years old

A test case before the high court on the legality of Australia intercepting boats and forcibly taking asylum seekers to foreign countries may be rendered irrelevant by new legislation before parliament. The new laws would grant sweeping powers to the immigration minister and his department.



The high court has been asked to rule on the forcible detention of 157 Sri Lankan Tamils, held on board an Australian customs vessel on the high seas for a month while Australia tried to negotiate to send them to India, the country their boat left from.

The court has reserved its decision, but the ruling may be overtaken by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, currently before the House of Representatives, which would strengthen the government’s ability to forcibly remove people from Australian territory, and allow the government to disregard whether those people would face persecution in whichever place Australia left them.

The bill would remove almost all references to the UN Refugee Convention in Australia’s Migration Act, replacing them with Australia’s own interpretation of the convention.

It would also grant the government the power to take an asylum seeker to a foreign country, even if that foreign country was hostile and had not agreed to accept them.

The bill would ensure those powers “cannot be invalidated because a court considers there has been a failure to consider … Australia‘s international obligations”.

In the high court, the government solicitor argued the Australian government acted within current laws at all times in detaining 157 Sri Lankan Tamil asylum seekers at sea for 28 days as it tried to arrange to transport them to India, the country their boat had left from.

Justin Gleeson, SC, put the government’s case to the High Court on Wednesday, arguing Australia had a sovereign right to protect its borders, and was empowered under the Maritime Powers Act to detain unauthorised arrivals and take them to “a place outside Australia”.

Gleeson argued Australia was within its powers to intercept asylum seekers, who had no right to enter Australia, outside territorial waters and that it was impractical to consider individual asylum cases at sea.

Such an obligation would, he argued, “turn the vessel, by law, into a floating tribunal”.

Craig Lenehan, acting on behalf of the refugees said Australia could not take asylum seekers to a place where they might face danger, or where they had no right to be.

On the final day of hearings on Wednesday, the court focused on the legality of Australia’s ultimately unsuccessful attempt to take the asylum seekers to India, despite not having permission from that country for them to disembark there.

The asylum seekers were taken twice across the Indian Ocean, from 16 nautical miles off Christmas Island to the coast of India and then back again to Australia, over 28 days on customs vessel Ocean Protector. The asylum seekers were ultimately taken to Nauru, where they remain.

Justice Kenneth Hayne suggested Australia’s India plan was akin to promising to take someone to the MCG and leaving them at the bounds of Yarra Park. “To take means to take and leave,” he said.

Gleeson offered a parallel analogy, of driving a young child in a car to 50 metres from the MCG, and leaving them with instructions on how to enter the ground.

“You might say you took the child to the MCG, though you didn’t deposit the child through the turnstiles of the MCG.”

“India is a fairly obvious place to return them. It couldn’t be regarded as speculative in nature.”

However, Gleeson agreed Australia could not forcibly “take them [the asylum seekers] down the gangplank against their will and deposit them in India”.