In this session, Shine Lawyers, Special Counsel, George Newhouse will discuss the unanswered questions arising from the High Court decision in the recent case of 157 Tamils intercepted and detained by Australian Border Protection on the high seas
The recent High Court decision of CPCF v Minister of Immigration and Border Protection upheld the legality of the Government’s decision to hold 157 Tamil asylum seekers on a Customs vessel for almost a month and take them on a fruitless voyage to India. It also reaffirmed the principle that Australian courts are bound to apply Australian Statute law even if that law violates a rule of international law.
Commentators often analyse a High Court decision like a football game, with winners and losers, CPCF was much more nuanced than that. The case gives slender hope to asylum seekers who fear refoulement (ie being returned to harm or persecution) because the High Court found that Australian law requires that a maritime officer cannot "place" or "keep" a person in a particular place unless he or she is satisfied on reasonable grounds that it is "safe for the person to be in that place". Many of the judges observed that the obligation to keep “safe” would encompass considerations of refoulement.
As a result of CPCF’s High Court Challenge, the Australian Government hurriedly pushed through a raft of amendments to the Migration Act and to the Maritime Powers Act to allow much greater flexibility and discretion in removing asylum seekers from the high seas to other places.
The amendments reduced the ability of the courts to review decisions at sea and redefined the Government’s obligations under the Refugee Convention by limiting its operation; but failed to remove the one protection that the High Court found is still effective, and which stops the Australian Government from leaving a person in a place where they would be at risk of physical harm.
George Newhouse is an Australian human rights lawyer and the former Mayor of Waverley. Newhouse is a practicing solicitor and leads Shine Lawyers’ Social Justice team.
He is well known for his work with the disadvantaged, in particular for refugees, detainees, people with mental illness and Aboriginal and Torres Strait Islander peoples. He established the Australian Indigenous Chamber of Commerce in 2008 to promote Indigenous entrepreneurship and he is a member of the Board of the Stolen Generations Testimony Foundation.
In August 2009 Newhouse travelled to PNG to establish the Adrian Lam Foundation to assist youth in PNG through education and sport. He also serves as company secretary for the McKell Institute, a progressive public policy institute dedicated to developing practical policy ideas and contributing to public debate.