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Crikey Clarifier: what authority does Australia have over the Sri Lankan boat?

More than 150 people remain on an Australian Customs boat after a last-minute injunction stopped them from being returned to Sri Lanka. Crikey intern Paul Millar explains where Australia’s sovereignty begins and ends.

Last month the Australian government intercepted two boatloads of Sri Lankan asylum seekers supposedly bound for Australia. While those on one boat were sent back to Sri Lanka after “enhanced processing”, the fate of the second is in limbo on the high seas.

The High Court heard yesterday that the 153 Tamil asylum seekers now being held on board an Australian Customs vessel were seized before they could enter Australian waters. While we wait for the hearing to continue, Crikey takes a look at the limits of the long arm of Australia’s laws.

Where does Australian sovereignty end?

Australian sovereignty extends 12 nautical miles from the Australian coastline or islands in a belt of water called the Territorial Sea. These waters, the seabed below it and the airspace above it are considered part of Australian territory and are subject to our laws and regulations.

Where was the boat?

Despite initial reports that the boat was stranded up to 170 nautical miles off the coast of Christmas Island, Solicitor-General Justin Gleeson SC told the High Court yesterday that the vessel had been intercepted within Australia’s contiguous zone, a stretch of water extending another 12 nautical miles beyond the limits of the Territorial Sea. This places the boat within 24 nautical miles of Christmas Island at the time of boarding.

Does Australia have authority there?

While the contiguous zone is not part of Australian territorial waters, the Australian government has the authority to intercept any vessel it believes is infringing on its customs, fiscal, immigration or sanitary laws. In this instance, the decision to board a vessel suspected of transporting people into Australian waters without authorisation falls within the powers of the Australian authorities.

Where does the Migration Act come in?

According to the Solicitor-General, it doesn’t — as the boat never reached Australian territorial waters, the Migration Act is “inapplicable” to the 153 asylum seekers on board the vessel, offering them no protection under Australian law.

Do the refugees have any rights under Australian law?

Refugee rights activists maintain that the Australian government still has clear obligations under the international refugee convention to process refugee claims and provide them with access to legal aid. On Monday, 53 human rights scholars released a signed statement saying that the so-called enhanced screening processes employed by Australian authorities “do not comply with minimum standards on refugee status determination under international law”, pressing for greater judicial scrutiny and some form of oversight process.

What happens now?

ANU professor of international law Donald Rothwell says that while the government has pledged to give at least 72 hours’ written notice before surrendering the boatload of asylum seekers to the Sri Lankan authorities, it has made no such promises regarding sending the 153 refugees elsewhere.

“The undertaking as it stands at the moment only relates to Sri Lanka,” he said.

Rothwell suggests that the Commonwealth may explore the possibility of an agreement to settle the asylum seekers in a third-party country such as Cambodia or India in a move reminiscent of the actions taken by the Howard government in the wake of the 2001 Tampa affair.

The case is expected to go before the full High Court for a directions hearing within 21 days.

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  • 1
    paddy
    Posted Wednesday, 9 July 2014 at 3:12 pm | Permalink

    Good work there intern.

    BTW
    Since Bernard K will be in hiding after today’s football effort, you might just get a full time gig.

  • 2
    AR
    Posted Wednesday, 9 July 2014 at 4:43 pm | Permalink

    I agree with Paddy, very good precis, clear & intelligible.
    ABC reported that Gleeson argued that the Court had no jurisdiction as the “on water matter” (mere jetsam &, soon-to-be, flotsam?)was beyond any definition of Australian control/responsibility.
    So, the actions(in our name) must be under some other jurisprudence, ie International Maritime Law which applies on the High Seas in which case it is both piracy & probably slave-taking.
    Surely the first cargo transfer to the Sri Lankan navy was people smuggling, at the very least?

  • 3
    puddleduck
    Posted Wednesday, 9 July 2014 at 4:51 pm | Permalink

    Thanks, this is concise and useful.

    What have we become as a nation? Three cheers to the refugee advocates and lawyers who are taking the government on. The last bastion.

  • 4
    Yclept
    Posted Wednesday, 9 July 2014 at 5:41 pm | Permalink

    Given the current Murdoch Government’s record with the truth, how do we know where they really were at all? How do me know the navy wasn’t acting as pirates and kidnapping them?

  • 5
    Matt Steadman
    Posted Wednesday, 9 July 2014 at 6:58 pm | Permalink

    A nice little précis. For me the big question is what authority does Australia have once the passengers leave the contiguous zone? Do the passengers have any rights under Australian or International law to determine where they are allowed to be moved? And if they are moved against their will on the high seas, is that in contravention of any international law?

  • 6
    Posted Wednesday, 9 July 2014 at 7:28 pm | Permalink

    buggery on the high seass

  • 7
    Ken Lambert
    Posted Wednesday, 9 July 2014 at 11:18 pm | Permalink

    Which country is this latest boatload escaping from???

    I thought it was India!!!!

    What threat does the Indian Govt pose to Sri Lankans on Indian territory??? None - only a less attractive life than Australia.

    These boatloads are seeking a better life like millions of other third world people….they are economic refugees using people smugglers to bypass our existing refugee system.

    Most of the first boatload were not even Tamils but the Singalese who are supposed to be threatening the Tamils.

    This is a bizarre story….We have boatload from India run by smugglers with satellite phones dialing Australian lawyers from the middle of the Indian Ocean to gain High Court injunctions in Australia on their behalf !! What other contacts do they have in Australia and how do they get paid?

    I would have thought these so called humanitarian lawyers as evidenced their actions to aid and abet people smugglers to risk life and profit by their trade, could and should be charged with a criminal conspiracy.

  • 8
    oldskool
    Posted Thursday, 10 July 2014 at 7:57 am | Permalink

    Ken- India are not signatories to the refugee convention, so in India they have no rights, I personally would find that a little threatening- but, hey it’s not you so you don’t care- right?

  • 9
    klewso
    Posted Thursday, 10 July 2014 at 1:42 pm | Permalink

    Kidnapping on the high seas”….?

  • 10
    The Pav
    Posted Friday, 11 July 2014 at 12:09 pm | Permalink

    So we can intercept the boats because they are under Australian law but not apply the Migration Act because they are not under Australian law

    Who said Catch 22 was dead?

  • 11
    The Pav
    Posted Friday, 11 July 2014 at 12:15 pm | Permalink

    Hang on if we are intercepting them on the sea in our area of influenece under International Law which makes the action legal then doesn’t the other International Laws apply such as Refugee Conventions

    The there is the statement “While the contiguous zone is not part of Australian territorial waters, the Australian government has the authority to intercept any vessel it believes is infringing on its customs, fiscal, immigration or sanitary laws. In this instance, the decision to board a vessel suspected of transporting people into Australian waters without authorisation falls within the powers of the Australian authorities.”

    With reference to infringing Immigration laws my understanding is that it is perfectly Legal to apply for refugee status so there is no breach of the part.

    As to the other justifications there is no evidence they are unsanitary or a threat to our fiscal security so that just leaves our customs.

    I guess that must be the justification….They’re not white

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