View from The Hill

What will the government do now it has admitted it has human cargo at sea?

Immigration Minister Scott Morrison is under fire for his handling of asylum seekers. AAP/David Crosling

It took a High Court case to get the government to admit what it had refused to acknowledge to the Australian public – that it is holding 153 asylum seekers on the high seas.

The government has over-reached by its whatever-it-takes treatment of two boats of Sri Lankans, and in so doing has invited a fresh barrage of criticisms of its asylum policy. Whether this ultimately matters to it will depends on the outcome of the legal case.

Its hubris landed it in court. When the boats were intercepted (and couldn’t be turned around) the people could have been taken to Christmas Island and from there to Manus Island or Nauru. Or perhaps the government could have bypassed Christmas Island for one of the foreign centres.

But the government couldn’t bear to have its mantra – “for six months now we haven’t had a successful people-smuggling venture” – compromised.

So it undertook cursory long-distance processing, transferred one boatload to Sri Lankan authorities and presumably was trying to do the same with those from the second boat (most or all Tamils, who sailed from India) when refugee advocates resorted to the law.

In Tuesday’s High Court hearing the government undertook not to return the people to Sri Lanka without providing 72 hours’ written notice, so the case is proceeding now at a more leisurely pace.

Events have come together in something of a perfect storm.

As the court proceedings unfolded in Australia, the 41 already returned were being dealt with in a Sri Lankan magistrate’s court.

Journalist Jason Koutsoukis progressively tweeted from the Sri Lankan proceedings, reporting that five organisers of the boat had been remanded, with the others bailed. The passengers he spoke to said they were economic refugees.

On Wednesday, immigration minister Scott Morrison is in Sri Lanka – to attend the commissioning of patrol boats from Australia – where no doubt he’ll be the centre of an awkward media circus.

The United Nations High Commissioner for Refugees has said it is “deeply concerned” by Australia’s return of the 41, as well as about the fate of the 153. It questioned the “enhanced screening procedures” used to deal with the 41. Without further information it could not confirm whether these were in accordance with international law, it said. But “UNHCR’s experience over the years with shipboard processing has generally not been positive. Such an environment would rarely afford an appropriate venue for a fair procedure.”

Also, “the principle of non-refoulement (the prohibition on return to threats to life or freedom) in the 1951 Refugee Convention and more broadly under customary international law is clear: it applies wherever an asylum seeker is found and to whatever manner the expulsion or return is carried out, including during interception and other sea operations.”

More than 50 law scholars from 17 universities also criticised the procedures and said that holding asylum seekers on boats in this way “amounts to incommunicado detention without judicial scrutiny”. Human Rights Commission president Gillian Triggs believes international law would require “a fairer process” than “enhanced screening” with its minimal questioning.

The Abbott government operates on the principle that it simply declares it is obeying international law. “What we do on the water is consistent with our legal obligations,” the prime minister said on Tuesday. That is the proposition now being tested.

Those acting for the asylum seekers have questioned whether the Migration Act allows the government to hold the people, argued that the enhanced screening process does not afford them natural justice, and disputed the executive’s power to refoul them.

The government has told the court the people were intercepted in Australia’s contiguous zone, not in its territorial waters, so they were not entitled to claim protection under the Migration Act. It says it is acting under the Maritime Powers Act, which allows a person to be detained and taken “to a place outside the migration zone, including a place outside Australia”.

One immediate issue is what the government will do now. It hasn’t given any undertaking to provide notice if, for example, it decided to unload the people on Manus or take them to Nauru. That would solve an immediate problem but represent an “arrival”, of sorts. Sources thought it was unlikely it would try to get India to take them back. Keeping the people (who include children) floating about at sea in a customs vessel is difficult if the case goes on a while.

The government believes that all that really matters to the public is stopping the boats, not how it is done. Tuesday’s Essential poll has 41% (up 2% since March) saying its handling of the issue of asylum seekers arriving by boat has been good, while 35% (down 3%) think it has been poor.

If the government is legally vindicated its hubris will reach fever pitch. If not, it will have yet again been thwarted on asylum policy by the High Court, which recently rejected its attempt to deny permanent protection visas (which Morrison is working to get around).

Meanwhile, 153 people have become pawns, as the government tries to avoid a loss. How different from when, in Labor’s time, we had all that (faux) concern from the Coalition about the human rights of asylum seekers the then-government wanted to send to Malaysia.