The High Court has ruled that Australia's month-long detention of 157 Tamil asylum seekers at sea last year was legal and the asylum seekers were not entitled to claim damages for false imprisonment.
The asylum seekers’ boat was intercepted by customs ship Ocean Protector off Christmas Island on June 29, after their boat was damaged by fire and they called for help. The Tamils on board said they feared persecution in Sri Lanka and asked for asylum.
The asylum seekers, who had left India 16 days before, were detained at sea on the Ocean Protector for almost a month. They were eventually taken to Nauru after efforts to return them to India failed. They are still on Nauru, waiting for their refugee status to be determined.
The case was mounted on behalf of a Sri Lankan Tamil named in court documents as CPCF, who fled to India with his wife and children after receiving death threats due to his involvement in politics.
The key questions the court was asked to decide focused on the government’s power to detain people at sea and send them elsewhere.
Shine Lawyers and Ron Merkel QC, acting for CPCF, said such powers needed to be exercised fairly and with proper consideration of individual protection claims. They said the detention was at odds with Australia's international obligations to not return people to harm, and sought damages for false imprisonment.
The High Court found in a majority decision, split by the slimmest of margins at four votes to three, that the government had acted lawfully in its directions.
While the asylum seekers were detained at sea, details of what was happening were a closely guarded secret. Then-immigration minister Scott Morrison refused to answer questions or even confirm what was going on.
It was not until the High Court challenge began that the government was forced to provide details.
The Human Rights Law Centre was part of the legal team in the case. Its executive director Hugh de Kretser, said in a statement after the decision that while the outcome was disappointing, the case had succeeded in bringing vital legal scrutiny and transparency to the government’s actions at sea.
“It took this case for the government to finally break its secrecy and confirm that it was detaining 157 people — including 50 children as young as one — on a boat somewhere on the high seas,” he said. “If it hadn’t been for this case, the Australian public may never have known what happened to those 157 people.”
“Incommunicado detention on the high seas is a clear breach of Australia’s international human rights obligations. Unfortunately, today’s decision confirms that our domestic law allows the government to breach those obligations.”
De Kretser said the cruel treatment inflicted on these 157 people — at sea and on Nauru — should prompt MPs to consider more humane and less costly options for providing protection to refuges.
“We need to find a better way,” he said. “Instead of using cruel and secretive measures to stop refugees arriving on boats, the government should focus on addressing why they get on them in the first place. We need to focus on providing safe and viable pathways to protection within our region.”
However, even if the court had ruled against the government, it would not have meant much as a precedent. Late last year, the government changed the law to remove from the Maritime Powers Act limits to the government's power.
The changes to the Act were passed after key crossbenchers gave their support in return for the government removing all children from the Nauru detention centre before Christmas.
However, children’s rights campaign group Chilout reports that the children were not removed from detention and by the government’s own statistics at December 31, 135 children remained in detention on Nauru.
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