Controversy has arisen in Australia under its obligations to rescue refugees stranded at seas in its coastal waters given the string of incidents which have arisen recently. This is issue is by no means new to the courts and has been litigated on a number of occasions.
Under the law of the sea, mainly based on the United Nations Convention on the Law of the Sea (“UNCLOS”) to which Australia is a signatory, the masters of civilian ships on the high seas (international waters) have an obligation to render assistance to other vessels in distress – Art 98. The Australian NAVIGATION ACT 2012 (Cth) s.180 also obligates Australian vessels to render assistance to other vessels in distress. However, also under UNCLOS, all warships are immune from the jurisdiction of all states except for the law of the state whose flag it flies. Article 95 says “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” Australian Naval Ships are not subject to the duty to render assistance provisions of the NAVIGATION ACT 2012 (Cth).
Until 2001, under the Migration Act 1958 (Cth) the migration zone was the zone in which a person could arrive in Australian territory (previously the high water mark) without a valid visa and still be legally permitted to apply for a protection (refugee) visa. Initially the Howard government excised the migration zone during the Tampa incident so that it only included the Australian mainland and not the outer islands of Australian territory. Then in 2003 based on a bipartisan vote, the whole of the mainland was also excised meaning there was now no area of Australia in which it was possible to enter Australian territory and apply for a protection visa. All persons in Australian territory without a valid visa are therefore unlawful non-citizens who cannot apply for a protection visa and are subject to immigration detention or deportation.
Under the International Refugee Convention and other conventions, Australia also has international legal obligations of ‘non refoulment’ which basically means not sending a person back to a country when there is a reasonable prospect that they will be in danger of being killed, tortured or persecuted by the state from which they came. However, parliament has enacted s.46 of the Migration Act which says that ‘unauthorised maritime arrivals’ may not apply for protection visa. Unfortunately, the High Court considers that on a constitutional basis, international law is not part of Australian law until it has been enacted in an Australian statute as per MIEA v Teoh (1995) 183 CLR 273 and NAGV and NAGW of 2002 v MIMIA (2005) 222 CLR 161and for this reason, parliament has the power to thumb its nose with impunity at Australia’s international law obligations.
Many an observer and interested law students have thought it ridiculous that Australia could sign an international convention and then simply ignore it. The only ray of sunshine in all of this is that when a state of Australia makes a law which is inconsistent with a federal government law and an international convention, the High Court considers that it can use the international convention to construe the correct meaning of the federal statute and the Commonwealth is entitled to make such laws because of the external affairs power in the Constitution. This happened in the Tasmanian Damns case – Commonwealth v Tasmania (1983) 158 CLR 1 where the court ruled in favour of the federal government law made by the Hawke Government protecting the Franklin River from the construction of an hydroelectric plant prosposed by the conservative Tasmanian government at the time. The federal government had argued that the construction of the damn was inconsistent with its obligations to protect world heritage sites under the International Convention Concerning the Protection of the World Cultural and Natural Heritage which had been enacted in Australian legislation under the World Heritage Conservation Act 1983 (Cth).
It seems that the only possible humanitarian outcome is that the government changes the law surrounding the rescue of refugees or that there is some humane solution in relation to offshore processing however, it appears that this has not been achievable for some time.