Australia’s treatment of 157 asylum seekers intercepted and sent to Nauru has yet to pass the test, says high court justice

This article is more than 6 years old

This article is more than 6 years old

The Australian government’s power to detain asylum seekers on the high seas and send them to other countries still needs to be determined, a high court judge has said.



Lawyers for 157 asylum seekers who were detained on an Australian customs vessel at sea have said the government’s plan to send the group to India was not legal.

The asylum seekers set off from India on 13 June and their boat was intercepted in Australia’s contiguous zone, off Christmas Island, on 29 June.

They have since been sent to Nauru for processing.

High court justice Kenneth Hayne said the government’s legal ability to detain people outside its migration zone and then release them in a foreign country has not yet been tested.

“My concern is whether the government had power to take people from the contiguous zone to a place outside Australia,” he said on Thursday. “It may be that that is not the only legal issue.”

Ron Merkel QC, for the asylum seekers, said the government’s training of members of the group to pilot orange lifeboats during their detention indicated the government did not believe it could legally release them in India.

Commonwealth barrister Stephen Donaghue QC asked Hayne for more time to negotiate with Merkel to determine how the matter will go forward.

The matter will return to the court for further directions on Thursday next week.

Daniel Webb, the director of legal advocacy at the Human Rights Law Centre, said its clients had been through a truly harrowing ordeal, spending a month locked in windowless rooms on a vessel with no idea where they were or where they were going.

“We welcome the court’s recognition that this case involves profoundly important and untested questions about the lawfulness of their treatment,” he said. “Throughout our clients’ ordeal the minister has been incredibly secretive. This case will help ensure some much needed legal and democratic scrutiny of his actions.”