In “Our obligations still apply despite High Court win”, Sydney Morning Herald, 30 January 2015, Professor Jane McAdam writes that the High Court decision on the detention of Tamil asylum seekers at sea turned on a technical reading of statutory provisions, not an assessment of Australia's international refugee and human rights obligations.
Professor McAdam is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales.
Her article begins:
The High Court has decided that the month-long detention of 157 Tamil asylum seekers at sea was legal under Australian law.
It was a narrow win for the government – three of the seven judges dissented. The decision turned on a technical reading of statutory provisions, not an assessment of Australia's international refugee and human rights obligations. It is important to understand the outcome within this context.
The decision has no bearing on the lawfulness or otherwise under international law of Australia's interception, detention and removal of asylum seekers. Australia's international law obligations have not disappeared, but current policy leaves us wide open to breaches.
She writes that Australian naval, customs and immigration officials remain bound by the principle of non-refoulement even when they act outside Australian territory or waters, because governments are responsible for the actions of their officials wherever they assert effective control, and concludes:
International law is binding on Australia. But in our legal system, courts cannot make decisions about Australia's international legal obligations unless they are also reflected in domestic law. As Justice Keane explained in the High Court: "Australian courts are bound to apply Australian statute law 'even if that law should violate a rule of international law'."
Australia's international law obligations to refugees and asylum seekers remain unchanged. The principle of non-refoulement continues to bind Australian naval, customs and immigration officials wherever they act.
The fact remains that Australia is accountable internationally for its actions.
Read Professor MacAdam’s full piece here.