News: Sri Lankan case becomes less urgent

This July – the High Court’s winter recess – has seen six lengthy hearings concerning legal action on behalf of passengers of a boat from India who have spent the balance of the month detained in an Australian government vessel. The first two hearings concerned injunctions to prevent the passengers from being sent to Sri Lanka (the country of origin for many of them.) The next three hearings concerned the settling of a ‘case stated’ so that the High Court could determine legal questions about the Australian government’s powers to detain and move asylum seekers outside of Australian waters. In light of the urgency of the situation (for the detainees, if not the federal government), the Court acted quickly in settling on the legal questions and scheduling a full court hearing for August 5th.

As it turns out, the Court moved either too quickly or too slowly (depending on your point of view.) Within days of Hayne ACJ’s order for a case stated, the media reported (and the government confirmed) that the passengers were to be brought to the Australian mainland (apparently as part of negotiations with the government of India.) As Hayne ACJ observed in a sixth hearing on Monday, this development meant that the central issue of the pending High Court case – whether and in what circumstances people detained by Australia in international waters can be taken to a place ‘other than’ Australia – was moot. Any issue about the further treatment of the passengers (including the possibility that they will be sent to another country in the future) will raise completely different legal questions (concerning the Migration Act and judicial review of government decisions, rather than the Maritime Powers Act,  the Commonwealth’s executive powers and the habeas corpus writ to end unlawful detentions.)

At Monday’s hearing, the lawyers for the passengers argued that the case could still go ahead, reframed as a suit for damages for false imprisonment to date (on the Australian boat), which would still allow the legal questions about asylum seekers in international waters to be determined by the High Court. By contrast, the federal government argued that the lack of urgency meant that there was no longer any need to proceed by a case stated – instead, the facts and law could be determined in the Federal Court first, before the High Court hears any appeal. Justice Hayne struck a middle ground, vacating the August 5 hearing (and hence the case stated) due to lack of urgency, while permitting the passengers to convert their habeas corpus case into a false imprisonment action. The matter will now proceed like any other case pending in the High Court with the burden on the parties to move it forward, although Hayne ACJ cautioned that he would not let the case languish on the books indefinitely. Justice Hayne also rejected both sides’ arguments about costs (the passengers seeking their costs to date, the government wanting the loser of the eventual case to bear all the costs), reserving that issue for a later hearing.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.