Suggestion that the Government's handling of 153 asylum seekers amounts to piracy is misplaced, but this doesn't mean the actions are legally unaccountable, writes Donald Rothwell.

Is this the Abbott Government's "Tampa moment"? After months of relentlessly proclaiming that Operation Sovereign Borders is conducted consistently with international and Australian law the High Court of Australia will now be given an opportunity to assess some of these issues.

The interdiction of 153 Sri Lankan asylum seekers en route from India to Australia in the Australian contiguous zone and their offloading onto an Australian government vessel is now the subject of legal proceedings.

While the High Court has indicated that it will seek to expedite this matter, at a minimum it will take a month before the case is heard and a judgment delivered.

The parallels with the 2001 Tampa incident involving the Howard government are striking. At Australia's direction in August 2001 the Norwegian flagged MV Tampa carried out a search and rescue operation between Christmas Island and Indonesia.

The Tampa brought the 433 persons rescued at sea to Christmas Island; however, the Howard government closed the 12 nautical mile territorial sea surrounding the island and a three-day stand-off followed that was eventually broken when the SAS boarded the Tampa and offloaded the asylum seekers onto Australian naval vessels.

Determined to not allow the asylum seekers to physically reach Australia, the government secured support from Papua New Guinea and Nauru to implement the "Pacific Solution".

Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume. Watch Duration: 3 minutes 25 seconds 3 m 25 s In limbo on the high seas

While plans were put in place to relocate the asylum seekers to those countries the Federal Court was asked to review the legality of the government's actions. In a famous decision handed down on September 11, 2001, the Federal Court accepted the argument that the government was acting beyond its legal power.

However, on appeal the Full Bench of the Federal Court reversed that decision and accepted that the "executive power" of the Commonwealth government did extend to the interdiction of vessels and taking control of persons seeking to come to Australia. Though an appeal to the High Court was considered, it was never pursued, leaving unresolved how Australia's top court may have assessed these questions.

At present the 153 Sri Lankan asylum seekers are in a form of legal limbo as they await the outcome of the present High Court proceedings. While the Abbott Government gave an unprecedented undertaking to the court that it would give 72 hours notice before handing the asylum seekers over to the Sri Lankan Navy or other Sri Lankan officials, to date those undertakings have not extended to PNG or Nauru.

What options then could be open to the Government in the run-up to a final High Court judgment?

Assuming that bringing the asylum seekers to either Christmas Island or the mainland would be politically unpalatable, then transferring them to PNG or Nauru for the processing of their asylum claims is clearly an option. Returning them to India could also be explored; however, unlike the "push back" approach adopted towards asylum seekers leaving Indonesia the dynamic has changed now that the Sri Lankans have been taken off their boat and placed on board an Australian government vessel.

Lifeboats could always be considered as a means of returning the asylum seekers to India but that would be a much more complicated maritime operation than has been the case with their use in Indonesian waters.

The Abbott Government could always seek to secure the support of another friendly government that would be prepared to take the Sri Lankans. In that regard, the ongoing talks with Cambodia may be revived to see if that country would be willing to assist.

Whatever the outcome of the current impasse, the events of the past week have shone for the first time a true legal spotlight upon Operation Sovereign Borders. On July 7 a statement was issued by 53 legal scholars from 17 Australian universities that observed in relation to the return of asylum seekers to Sri Lanka following enhanced screening of their asylum claims at sea:

This raises a real risk of refoulement, in breach of Australia's obligations under international refugee and human rights law, including the 1951 Refugees Convention, 1948 Universal Declaration on Human Rights, and the 1966 International Covenant on Civil and Political Rights. Such summary procedures do not comply with minimum standards on refugee status determination under international law. Holding asylum seekers on boats in this manner also amounts to incommunicado detention without judicial scrutiny.

Similar legal issues have been raised by the United Nations High Commissioner for Refugees, and the president of the Australian Human Rights Commission, Professor Gillian Triggs.

Suggestions, however, that the actions of the Government amount to piracy are misplaced. The interdiction of vessels within Australia's 24 nautical mile contiguous zone are consistent with international law.

Piracy on the high seas does not extend to the actions of Australian government ships such as naval and customs vessels. This does not mean that the actions of the Abbott Government are legally unaccountable. The High Court's ruling will be much anticipated. It will predominantly address issues of Australian law rather than international law.

Constraints may be placed around how the Government implements the "on water" aspects of Operation Sovereign Borders.

Whatever the outcome it will provide some clarity for the Australian public as to whether the actions of its Government are consistent with law.

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. View his full profile here.