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 Act (MPA).

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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 procedural fairness.
  5. 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 non- statutory 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.
  6. 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 international law.