Frank Brennan SJ. High Court decision on Tamil asylum seekers.

Chief Justice French and Justices Crennan, Gageler and Keane decided that the Maritime Powers Act did authorise a maritime officer to detain the plaintiff for the purpose of taking him, or causing him to be taken, to a place outside Australia, being India: (1) in implementation of a decision by the Australian Government that the plaintiff (and others on the Indian vessel) should be taken to India without independent consideration by the maritime officer of whether that should be so; and (2) whether or not, prior to the commencement of the taking of the plaintiff to India, an agreement or arrangement existed between Australia and India concerning the reception of the plaintiff in India.

Justice Kiefel would have required that there be an agreement between Australia and India.

These five judges also decided that there was no requirement to give the plaintiff an opportunity to be heard before being taken to a place outside Australia.

Justices Hayne and Bell decided that the Maritime Powers Act 2013 (Cth) did not authorise a maritime officer to detain and take the plaintiff to India when, at the time that destination was chosen, the plaintiff had neither the right nor permission to enter India. Subject to that limitation, they nonetheless decided that the Maritime Powers Act authorised a maritime officer to detain and take the plaintiff, a person reasonably suspected of having been on the Indian vessel when it was detained under that Act, to a place outside Australia determined by the National Security Committee of Cabinet, and to place the plaintiff in that place if the officer was satisfied, on reasonable grounds, that it would be safe for the plaintiff to be in that place.

By a majority of 4-3 (French CJ, Crennan, Gageler and Keane JJ, with Hayne, Kiefel and Bell JJ dissenting), the court decided that the Maritime Powers Act did authorise a maritime officer to take the steps in implementing the decision to take the plaintiff to India and to detain the plaintiff for the purposes of taking the plaintiff to India.

The majority decided that the detention from 1 to 27 July 2014 was lawful at all times and thus there was no claim to damages for the detention.

I thought it might be helpful if I were to draw further attention to some of the remarks of the judges which should assist all concerned citizens wanting to contribute to the ongoing policy discussions in Australia, especially when asking if it might ever be possible to design decent pre-conditions for safely returning asylum seekers to Indonesia when they have transited there.  Given that both sides of politics are committed to stopping the boats, we need to find a better way than having to maintain the barbaric arrangements on Nauru and Manus Island and allowing government to run undercover turnbacks and returns to Indonesia without adequate safeguards for asylum seekers even if they no longer be in direct flight from persecution in their home country.

Chief Justice French observed that the Commonwealth had ‘argued that the non-refoulement obligation under the Refugees Convention only applied to receiving States in respect of refugees within their territories’, and not to asylum seekers presenting on the border or within the contiguous zone or in distress on the high seas. Contrary to Professor Goodwin-Gill’s view, the Chief Justice said, ‘There is support for that view in some decisions of this Court, the House of Lords and the Supreme Court of the United States’.  The Chief Justice referred to Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55(2000) 204 CLR 1 at 45 [136] per Gummow J; [2000] HCA 55Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15 [42] per McHugh and Gummow JJ; [2002] HCA 14R (European Roma Rights Centre) v Immigration Officer at Prague Airport[2004] UKHL 55[2005] 2 AC 1 at 29–30 [17] per Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell agreeing at 47 [48], 55 [72] and 66 [108] respectively; Sale v Haitian Centers Council Inc [1993] USSC 89509 US 155 (1993). The Chief Justice went on to say, ‘The United Nations High Commissioner for Refugees, appearing as amicus curiae in these proceedings, submitted that when a State party to the Refugees Convention exercises effective control over a person who is a refugee outside the territory of the State, it attracts the non-refoulement obligation imposed by both the Refugees Convention and the Convention against Torture.’ The Chief Justice did not take the matter any further as he said there was no textual basis in the disputed statute ‘which would support a construction limiting the power which it confers by reference to Australia’s non-refoulement obligations [even] assuming they subsist extra-territorially’.  You will recall that in its written submissions to the High Court, the Commonwealth as defendant in the proceedings has stated: “Australia’s obligations under the Refugees Convention were not enlivened in respect of the plaintiff, because they arise only with respect to persons who enter Australia’s territory. That is disputed by the plaintiff and interveners who submit that the Court should find the decision of the US Supreme Court in Sale on this point is wrong. The Court should not determine this issue. While the jurisdictional reach of the Refugees Convention may be important in other contexts, it is not here. The defendants accept that the non-refoulement obligations arising from the CAT and ICCPR are not subject to any relevant territorial limitation. As the plaintiffs’ arguments do not distinguish between the non-refoulement obligations, nothing turns on the territorial reach of art 33.”

Justice Crennan observed, ‘There is inherent tension between the obligations of Australian authorities to assist persons in the contiguous zone on unseaworthy vessels in conditions of distress and danger, the federal legislature’s object of preventing contraventions of the Migration Act in the contiguous zone, and the preference of persons like the plaintiff to access non-refoulement obligations under the Refugees Convention in Australia rather than in another country. That inherent tension is not unlike the inherent tension in the Refugees Convention between humanitarian concerns for the individual and that aspect of state sovereignty concerned with the exclusion of entry by non-citizens’.

Justice Gageler addressed the plaintiff’s argument which started ‘with the uncontroversial proposition that the exercise of maritime powers over persons on board a foreign vessel in the Australian contiguous zone is subject to international law.’  He replied, ‘The argument is that the law of India afforded the plaintiff no protection against being returned from India to Sri Lanka and that, in the absence of agreement between the Australian Government and the government of India that he would not be returned to Sri Lanka, his return by Australia to India would have contravened an implied limitation on the maritime power conferred by s 72(4) of the Act because it would have been in breach of Australia’s obligations under each of the Refugees Convention, the International Covenant on Civil and Political Rights and the Torture Convention. The Minister and the Commonwealth join issue both as to the content of the law of India and as to the content of Australia’s obligations under each of those international instruments.  The unbridgeable gap in the argument is the inability to demonstrate how the statutory duty to take a detained person to a place in the exercise of the maritime power conferred by s 72(4) is conditioned on observance of Australia’s obligations under any of the Refugees Convention, the International Covenant on Civil and Political Rights, or the Torture Convention.  The principle that “a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law” does not assist. Application of that principle to a statute conferring power on an executive officer to take action outside Australia requires the language of that statute to be read so far as possible as empowering the officer to act in conformity with applicable international law norms, as understood within the international community. The principle gives rise to no presumption that the statute is to be read as legislatively constraining the officer to act in conformity with international law norms as those norms might be ascertained, interpreted and then enforced by a domestic court.’

Justice Keane observed, ‘The plaintiff claims to be a refugee within the meaning of Art 1 of the Refugees Convention (“the Convention”) on the basis that he has a well-founded fear of persecution in Sri Lanka. He also claims that he is a person in respect of whom Australia owes non-refoulement obligations under Art 33(1) of the Convention, Art 7 of the International Covenant on Civil and Political Rights (“the ICCPR”) and Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.’ 

Justice Keane went on to say, ‘There is no suggestion that the plaintiff had any reason to fear persecution if he had disembarked in India. India is not a party to the Convention. It is, however, a party to the ICCPR. There is no suggestion that the plaintiff was at risk of being returned to Sri Lanka by Indian authorities had he disembarked in India. It is also common ground that at no time did the defendants seek to cause the plaintiff to be taken to Sri Lanka.’

Justice Keane also dealt with the plaintiff’s argument that ‘being taken to India was contrary to Australia’s non-refoulement obligations, in that India was not a party to the Convention’.  He said, ‘Judicial authority in Australia, the United Kingdom and the United States of America suggests that a state’s obligations under the Convention arise only with respect to persons who are within that state’s territory”.  Like Chief Justice French he referred to the US Supreme Court decision in Sale, the UK House of Lords decision in the Roma case, as well as an earlier decision of the High Court of Australia.  He then observed, ‘The plaintiff does not accept that this body of authority is correct, but it is unnecessary to come to a conclusion on that point. Whatever the true effect of the Convention may be, the terms of the Migration Act are clear.’

He then set out some very clear principles for the application of international law when interpreting and applying Australian domestic law: ‘Australian courts are bound to apply Australian statute law “even if that law should violate a rule of international law” International law does not form part of Australian law until it has been enacted in legislation. In construing an Australian statute, our courts will read “general words … subject to the established rules of international law” unless a contrary intention appears from the statute. In this case, there is no occasion to invoke this principle of statutory construction. The terms of the Act are specific. They leave no doubt as to its operation.’

Justice Keane said, ‘The circumstance that India is not a party to the Convention does not mean that the plaintiff was at risk of refoulement to Sri Lanka. The issue is a practical one. Australia’s non-refoulement obligations under the Convention are satisfied if the country that the plaintiff is taken to offers effective protection as a matter of fact, whether or not that country is party to the same treaties as Australia. In Patto v Minister for Immigration and Multicultural Affairs, French J (as his Honour then was) explained the scope of the non-refoulement obligation in the Convention thus: “Return of the person to a third country will not contravene Art 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason.”’

Let the respectful dialogue and the hard intellectual grunt work begin.  We need to find a better way.

Frank Brennan SJ is presently Gasson Professor, Boston College Law School.

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