There was some commotion last year when the Australian
Government kept 157 Sri Lankan Tamil asylum seekers adrift on the
Indian Ocean for a month under the auspices of the Maritime Powers
During that time the Government was furiously attempting to
negotiate their return to India (the port of departure), before
ultimately transferring them to the Cocos Islands. One of the
asylum seekers claimed this period at sea was unlawful detention,
and sought damages. Yesterday, the majority of the High Court
decided the government's actions were legit. Here are 6 points
we can take (or decry) from the outcome and the recent amendments
to the MPA:
Asylum seekers have basically no protection under
Australian law. Australia is a signatory to the Refugee
Convention. But, this will not invalidate laws such as the MPA or
Migration Act, which breach the Convention's protections.
There is a requirement for the Government to act
reasonably and in good faith. Ie. Detaining the asylum
seekers only for as long as was necessary. Trouble is,
'reasonableness' can be fairly subjective, and where there
is no right of review or ability to access information relating to
Cabinet's decision, in future cases it may be difficult to
judge whether the Government has, in fact, acted reasonably.
But there is no requirement for us to know why the
Government does what it does. Cabinet's decision to
return the asylum seekers to India was made in confidence. Before
the High Court, it was vaguely attributed to 'operational
reasons'. No evidence was led about whether Cabinet considered
the safety of the asylum seekers (or other options available), nor
was it required. Until the 30 year Cabinet confidentiality period
expires, for this and similar cases, the public won't have
access to the decision makers' reasoning.
The Minister's decisions will be
unreviewable. The MPA has been amended so that this type
of decision by the Minister is exempt from administrative review.
Meaning that an asylum seeker is not entitled to reasons for the
decision, or review of it by a court. The High Court also confirmed
that on the basis of the MPA, the asylum seekers had no right to
The Cabinet and Minister don't have greater powers
than what exists in the MPA. A few of the minority of the
Court considered the argument that even if the MPA didn't
authorise the removal of the asylum seekers, then its broad
nonstatutory executive powers, did. Those judges found that where
legislation has been enacted to constrain the Government's
power, then it could not have greater powers at common law.
A bill of rights would be helpful. If the
Australian Government's actions over the past year have taught
us anything, it is that we could probably do with a bill of rights.
Appropriately drafted, this would help to defeat provisions of the
MPA and Migration Act, which otherwise strip away people's
basic human rights and Australia's obligations under
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