Rethinking Asylum: History, Purpose, and Limits
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You can filter on reading intentions from the list , as well as view them within your profile. Setting up reading intentions help you organise your course reading. It makes it easy to scan through your lists and keep track of progress. Here's an example of what they look like:. Your reading intentions are also stored in your profile for future reference. On the approach favoured by the majority in Chu Kheng Lim , there does not seem to be a historical exception that extends even to detaining aliens so as to return them to their country of nationality, let alone one which extends to taking them to any place deemed suitable by the Australian government.
The obvious answer to these concerns is provided by the need for the exercise of detention powers to remain connected to administering and ensuring compliance with the Migration Act , or to investigating or preventing contravention of an Australian law. As we saw above, in the case of asylum seekers this is likely to be their actual or anticipated contravention of the Migration Act.
We think it is arguable that the open-ended character of the detention for which the MPA provides, particularly following enactment of the Caseload Act ,  is not sufficiently connected to the constitutionally permitted purpose of preventing non-citizens entering Australia without authorisation. It is not a sufficient answer of this concern to point out that the legislation states that the power to detain may only be exercised for a constitutionally permissible purpose,  if the detention power itself is not conformable to such a purpose.
The Caseload Act amendments were set out above. They include the repeal of section 97, which specified an end point for detention, and permit detaining persons while decisions are made, while arrangements are made and while consideration is given to the making of various administrative determinations. These do not seem to exhibit sufficient connection to the exclusion of persons or vessels from Australia; rather, they seem to make the taking of foreigners to other places an end in itself.
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Detention that is open-ended in this way would therefore seem to lose touch with its constitutionally permitted basis, instead amounting to an open-ended power to keep non-citizens detained on Australian vessels at sea. The second reason is, in our view, the stronger one. This is the lack of an adequate statutory specification of a duration for detention.
This has been set out in detail in Part II D above. For instance, there is no obligation that disembarkation be effected as soon as reasonably practicable, and the express provision for the remaking of the decision as to a destination seems to preclude reading in such a requirement by way of implication.
Hence, from the perspective of the aliens power we regard the MPA as constitutionally suspect. The detention that it permits seems to go well beyond what is reasonably capable of being seen as necessary for the purpose of ensuring exclusion of unlawful non-citizens from Australia, and is not stated in such a way that the duration of such detention, and thus its lawfulness, is capable of being determined at any time and from time to time, by reference to criteria which are set at the start of the detention.
The other head of power that is relevant to the MPA is the external affairs power. As noted above, in CPCF the Commonwealth argued that its non-statutory executive power under section 61 of the Constitution empowers it to do what was done to the asylum seekers in that case.
Its argument to that conclusion drew heavily upon the reasoning of the majority of the Full Federal Court in Tampa. The argument has two main components. One concerns the ways in which, and extent to which, legislative enactments curtail or override non-statutory executive powers. The second component of the argument concerns the content of non-statutory executive power.
In Tampa , French J stated that:. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution , the ability to prevent people not part of the Australia [sic] community, from entering Absent statutory abrogation it would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result.
Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention. It was incidental to the objective of preventing a landing The first is that his Honour concludes that the actions of the Commonwealth in that case did not constitute detention, because those actions were incidental to preventing a landing.
The same cannot be said of the sort of actions contemplated by the MPA. It is therefore far from clear that any non-statutory executive power could be called upon in support of them.
As discussed above,  detaining asylum seekers and taking them on an open-ended ocean voyage goes well beyond that. The reference to the common law of Australia in Lim do[es] not deal with the question whether, absent statutory authorisation, s 61 of the Constitution confers upon the Executive a power to exclude or prevent the entry of a non-citizen to Australia and powers incidental thereto. He did not suggest that the denial was mistaken, and three judges in CPCF expressly affirmed that the principle in Chu Kheng Lim extends to the extraterritorial conduct of the Australian government, while a fourth apparently proceeded on the same assumption.
The power of the Commonwealth to prevent entry of persons into Australian territorial waters by intercepting and detaining them in the contiguous zone and beyond raises very different questions from the practice of dealing with unlawful non-citizens after the entry of a vessel into national territory. In addition to important legal issues about the power of the Australian government to detain persons outside Australia, the MPA raises fundamental questions about the regulation of governmental power, the rule of law, and the nature of the relationship between the domestic and international legal frameworks that bind Australia.
The analysis in this article also raises broader issues about the nature and role of the state and the meaning of sovereignty. The distinctive feature of a state as an international legal concept is its territorial nature.
Despite domestic efforts to curtail accountability for breach of international obligations, Australia continues to be bound by international legal norms, including those which impose obligations as to refugee protection and human rights. These treaty obligations do not carry with them any direct enforceability mechanisms, but nevertheless provide a standard by which the Australian government can be held accountable for extraordinary detention measures at sea.
Hence some, even all, asylum seekers may also be refugees, and recognition of that status serves a declaratory rather than a constitutive purpose. As the report in relation to the MV Tampa noted:.
Schacher on Price, 'Rethinking Asylum: History, Purpose, and Limits'
This marked a shift in border protection strategy and the nature of previous operations, away from the more reactive posture associated with Operation Cranberry that sought to detect and intercept unauthorised boats inside Australian waters and escort them to Australian ports.
As is discussed further below n 84 , the Caseload Act has amended the MPA so that the relevant power is now located in ss 72 4 — 4A. This was to allow affected agencies to amend their operational procedures in line with the new legislation. These provisions also permitted boarding and detaining a vessel, and detaining those upon it, if the vessel had been chased and immediately before the chase commenced a request to board could have been made: Migration Act ss C 3 , F 1 b , as inserted by Border Protection Legislation Amendment Act Cth sch 1 item 2.
Provisions permitting the boarding of Australian vessels are not relevant to the current discussion, as such vessels do not carry significant numbers of asylum seekers. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:. In this case, the initial power to board requires that the commander of the Commonwealth vessel have the reasonable suspicion, whereas the subsequent exercise of the powers of detention require that the officer exercising them have the reasonable suspicion.
Alternatively, a ship that was hazardous or otherwise unseaworthy could be destroyed upon the order of the Secretary of the Department: Migration Act s H, as inserted by Border Protection Legislation Amendment Act Cth sch 1 item 2. Justice Mildren set out the facts of the case: at —6 —, and set out the circumstances of those on board the vessel as circumstances of detention: at .
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The Court also gave other reasons, but these are not relevant to the present discussion. Section 31 permits the exercise of such powers to investigate the contravention. Their vessel did not enter Australian territory prior to its interdiction. There are also exceptions for those who are brought to Australia by Australian authorities, which will be discussed further below. See, eg, Migration Act s 27 1 , as enacted. Item 5 of sch 4 of the Maritime Powers Consequential Amendments Act Cth amended this exception to also include those unlawful non-citizens brought into the migration zone under s 72 4 of the MPA.
Justices Hayne and Bell, in the minority in CPCF , held that the purpose of investigating a contravention of the law was not engaged in that case, but pointed to the authorisation of the exercise of powers in order to prevent a reasonably suspected contravention in s CPCF  HCA 1 ; 89 ALJR , —. Article 92 1 also provides that ships on the high seas are subject to the exclusive jurisdiction of their flag state unless an exception applies.
The relevant provisions that become exempted from the s 41 limitation are ss 69 , 69A, 71, 72 and 72A, which as will be discussed further below confer powers to detain vessels and persons and to take them to other places. There are further powers under these sections that may be exercised by an officer acting under an authorisation, but they have less immediate relevance to the case of asylum seekers. Prior to the enactment of the Caseload Act , MPA s 72 4 conferred the same power in identical terms but without being split across two sections.
Justices Crennan, Gageler and Keane did not explicitly discuss the issue, but the latter two accepted that the safety of disembarkation at a place might depend upon circumstances particular to an individual detainee: at , . The power to suspend the operation of maritime laws is found in s 75H. Freedom of the high seas Justice Gageler made the same point: at . See also the Navigation Act Cth. No one shall be subjected to arbitrary arrest or detention. It is noteworthy that while the Commonwealth in its submissions in CPCF accepted the existence of non-refoulement obligations under the ICCPR see Minister for Immigration and Border Protection, above n 8 , it did not refer to the potential for detention under the MPA to breach the prohibition on arbitrary detention set out in art 9 of that treaty.
These two cases concerned Somali nationals, who, having hijacked French-registered vessels off the coast of Somalia, were arrested and held by the French army, then transferred to France, where they were taken into police custody and prosecuted for acts of piracy. In this case, French naval authorities intercepted a Cambodian vessel on the high seas on the basis that it was suspected of trafficking drugs. The French navy, with the agreement via diplomatic note of Cambodia rerouted the vessel back to France for prosecution.
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This led to the occupants being detained for a total of 13 days including the time taken for the journey to France. However, Replies to the List of Issues sets out a rather hesitant approach to the issue which falls short of acceptance of extraterritorial application of international human rights treaties. Even if the threshold is a high one, Australian government vessels under the control of Australian military or customs personnel presumably would satisfy it.
See also art 7 11 which sets out certain interception and search powers in relation to stateless vessels where there is a reasonable suspicion they are engaged in the smuggling of migrants by sea. This is also explicitly stated to allow appropriate measures in accordance with national and international law. As a result, a total of persons were returned to Libya and a smaller number of migrants to Algeria. Some of these practices have been found to be unlawful under European human rights law. James Mayall. Political Science.
Ann Hosein. The Cambridge Companion to International Law. James Crawford. Human Rights in World History. Peter N. After Tocqueville. Chilton Williamson Jr. Routledge Handbook of International Criminal Law. William A. Democracy — The God That Failed. Hans-Hermann Hoppe.
The Power and Purpose of International Law.