“You can’t just detain 200 people and not tell anyone. And you can’t just deliver 200 people straight back into the hands of those they claim to be fleeing. Doing so would be a breach of international law.”
-Daniel Webb, Human Rights Law Centre, July 17, 2014
Even as moral outrage over the shooting down of MH17 is being vented in the corridors of Canberra and New York by Australian officials, including its elected representatives, a distinctly less enthusiastic involvement is being shown towards the 157 Sri Lankan asylum seekers who are being detained on an Australian customs vessel on the open sea. (Up to 40 have already been returned to those they were fleeing.) When it comes to humanitarian sentiment, selectiveness is of the essence.
The Abbott government has been doing its best to give the matter as much light as the asylum seekers themselves receive. Notions of public interest immunity are being used to scotch the flow of information, showing that a government that accuses other states of opaque practices is happy to behave in identical fashion when the time is right. While it is impossible to see how 157 mainly Tamil asylum seekers on route to Australia on a boat could possibly be deemed a matter of defence, the legal eagles have been busy tearing strips off the Refugee Convention in the hope they will stay at sea. Those bodies are certainly not going to be heading this way.
Defence documents tabled in the Australian High Court by lawyers representing the Immigration minister Scott Morrison 19 hours after the set deadline show that the passengers receive three hours of natural light, when they can take their meals. In the spirit of reverse human kindness, it is deemed “unsafe” to grant the group, which has children in tow, unrestricted freedom on the vessel.
A good deal of segregation is also being practiced on the vessel. Families are being separated, be it men, women or children. This is again justified by the bureaucrat cats as necessary, whatever that definition of necessity is.
The precedent is remarkable. Effectively, the asylum seekers have been kept on the high seas since their vessel was intercepted on July 7, though the detention itself seems to stretch back to the end of June. The point of interception, according to authorities, was outside that of the Australian migration zone. (It is worth adding that, even if they had made it to the zone, they would have still been shipped to a non-Australian destination for hazardous processing.)
According to the defence documents, whether the ethnic Tamils wished to avoid returning to Sri Lanka was of no consequence to Australian interests. The Commonwealth, in fact, had a power “preventing non-citizens from entering Australia” which encompassed “doing all things incidental to that objective, including taking them to a place other than Australia.”
While the government did accept that rapidly vanishing obligation of non-refoulement, one that prevents asylum seekers from being returned to their country of origin in the event of their persecution, it shirked it. Such an obligation “does not apply in respect of a person unless and until that person reaches Australia’s territorial sea.”
The situation of suspending asylum seekers on the open sea effectively creates what amounts to a 19th century convict hulk, albeit one fashioned with a few rudimentary mod cons. This would have resonance for students of Australian history, familiar with the various carceral experiments undertaken on the sea itself during the grand age of sea prisons. History is now not so much grinning as grimacing at the recurrence.
Another experiment is also being conducted on the unfortunates now being held on the Australian vessel. The wise ones in Canberra have decided to undertake what they term “enhanced screening” on open waters. To say that this falls breathtakingly short of obligations under the Refugee Convention to fairly process such claims would be stating the obvious, but the legally obvious has no truck with the Abbot government.
As Volker Turk, Director of International Protection, United Nations High Commissioner for Refugees, observes, “You can only ensure respect for the principle of non-refoulement if you have in place proper and fair procedures that identify, with due process, who is in need of international refugee protection and who is not.”
The High Court of Australia, which has become the battleground for the finer points of refugee law, has found itself frustrated at the seemingly interminable nature of the seaborne detention. It has already thrown down the gauntlet to the Abbott government, having struck down Morrison’s attempt to cap the number of places for Australia’s refugee intake by boat. The cap had been issued in an attempt to circumvent the Senate’s vote that scuttled his efforts to re-introduce the infamous regime of temporary protection visas (TPVs).
With dejection, Justice Kenneth Hayne on the bench expressed his abiding concerns. “What affects my thinking more than anything else is how long these people have been on board this ship.” Counsel for the government, Stephen Donaghue QC, confirmed that the asylum-seekers have been detained on June 29. “Sort it out, just fix it,” he snapped at both counsel. But as his honour should well know, the idea of that fix is bound to evade, rather than further, the obligations of the Refugee Convention.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org