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How Australia Legalized Indefinite Detention on the High Seas

After two weeks on the water, a boat carrying asylum seekers was intercepted by Australian authorities. Its passengers were transferred to a naval vessel where they remained under guard for 29 days.

by Max Rann
Sep 11 2015, 12:00am

Illustration by Carla Uriarte

This article appears in The Incarceration Issue, a special edition of VICE Australia.

In June, 2014, 157 Sri Lankan Tamils boarded a fishing boat in the Indian city of Pondicherry. From there, they sailed for Australia, a mind-bending 4,039-mile voyage that could only make sense when you're fleeing decades of documented persecution.

After two weeks on the water, the boat was intercepted by Australian authorities. Its passengers were transferred to a naval vessel where they remained under guard for 29 days. After Australia tried and failed to negotiate their return to India, all 157 (including 50 children) were sent to Nauru in the middle of the night, without their lawyers' knowledge.

This year, the legality of this protracted detention at sea was challenged before Australia's High Court. During the case, a Tamil man—identified as CPCF—described conditions aboard the naval vessel as "very difficult." He claimed that he and the other asylum seekers were locked in a windowless room for 22 hours each day.

For its part, the Immigration Department argued that at no time had CPCF actually claimed asylum seeker status (the judgement summary states he was never asked to) and Australia therefore had no obligations not to try and send them back where they came from. In a 4:3 decision, the High Court agreed, ruling in January 2015, that authorities acted lawfully—setting a worrying precedent, according to many legal experts.

"It's given the government far more discretion, not reviewable by courts, to do as they like on the high seas," says Dr. Maria O'Sullivan, a lecturer in law at Monash University, who has written extensively on the case.

"Unlike criminal law, where there are limits on how long you can hold someone without a charge, this theoretically allows for indefinite detention of future asylum seekers."

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