Full High Court To Consider Case of Asylum Seekers Detained at Sea
Thursday 24 July 2014 @ 11.37 a.m. | Immigration
On August 5, the High Court will consider a legal challenge from people representing one of the group of asylum seekers that have been detained on board an Australian customs vessel since June. The Sydney Morning Herald has reported on a document filed by the government as part of the case, which states that there are 157 asylum seekers being held on the vessel, who are being held in three rooms (one for men, one for women and one for children) and who are allowed “approximately three hours outside during the day in natural light for meals”.
According to the document:
the national security committee of cabinet decided on July 1, two days after the boat was intercepted, that those on board ''should be taken to a place other than Australia''.
As previously reported by TimeBase, Justice Crennan issued a temporary injunction on July 7 to stop the Australian government from transferring the asylum seekers to the Sri Lankan navy. After a hearing before Justice Hayne, in which both sides presented revised cases, he decided that the full bench of the High Court should hear the matter in Canberra.
The Federal Government is arguing that it has the power to detain the asylum seekers under the Maritime Powers Act 2013 (Cth).
Ron Merkel QC, who is representing the asylum seekers, is arguing that the Migration Act 1958 (Cth) and the principle of non-refoulement should apply , meaning the asylum seekers cannot be returned to Sri Lanka. However, the government believes that no rights have been triggered under the Migration Act 1958 (Cth) as the boat did not enter Australian waters or reach the Australian migration zone.
ABC News reported that Justice Hayne “was not happy with the plaintiff’s draft case and labelled the Government’s defence as ambiguous and lax”, and also “expressed concern about the length of time the asylum seekers had been on the ship”.
The Guardian has reported that one of the lawyers acting for the asylum seekers, George Newhouse, has said there are three key issues:
“…whether the government actually has the legal power to take people on the high seas, imprison them and dump them in a foreign country…if they do have that power, whether the individuals have a right to be heard. Whether they have a right to say where they want to go…whether the government’s non-refoulement obligations could be waived if asylum seekers were intercepted outside territorial waters.”
In an article for The Conversation, Maria Giannacopolous of Flinders University wrote about the controversy surrounding the case, which raises broader implications about the balance of powers:
Even though this exercise of judicial power is lawful and perfectly in line with the separation of powers doctrine, in pursuing the proper application of relevant law, the judiciary emerges as a political and activist institution, frustrating the militarised strategies of the Abbott government in asylum policy…Whichever way the High Court decides, there will be political implications. Either the decision will sanction the secrecy of border militarisation – an approach that diminishes the space for international human rights laws – or it will resist these moves.
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