Rethinking Asylum-Seeker Detention at Sea: The Power to Detain Asylum-Seekers at Sea Under the Maritime Powers Act 2013

43 Pages Posted: 31 May 2015 Last revised: 6 Aug 2015

Date Written: March 5, 2015

Abstract

This article examines the practice of 'push backs' - the forcible return by Australia of asylum seekers on the high seas to their country of departure. This practice was subject to litigation in the Australian High Court when Australian authorities intercepted a boat from India carrying 157 Sri Lankan Tamil asylum-seekers, and detained them on an Australian customs vessel for a period of 29 days in 2014. The detention was carried out whilst the Australian government negotiated with India to receive the asylum-seekers. There was no agreement or informal understanding in place between Australia and India prior to the interception and detention, and in the end the asylum-seekers were brought to the Australian mainland. This was the subject of a High Court judgement which upheld the detention under Australian law and has now been dealt with by substantial amendments to the Maritime Powers Act (Cth) which significantly expand the ability of maritime officers to detain asylum seekers on the high sea without access to due process.

Keywords: refugee law, asylum, asylum seekers, law of the sea, immigration detention

JEL Classification: K10

Suggested Citation

Emerton, Patrick and O'Sullivan, Maria, Rethinking Asylum-Seeker Detention at Sea: The Power to Detain Asylum-Seekers at Sea Under the Maritime Powers Act 2013 (March 5, 2015). University of New South Wales Law Journal, Vol. 38, No. 2, 2015, Monash University Faculty of Law Legal Studies Research Paper No. 2015/07, Available at SSRN: https://ssrn.com/abstract=2612289

Patrick Emerton

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Maria O'Sullivan (Contact Author)

Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia
0415585708 (Phone)

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