The High Court’s Sri Lanka asylum seeker case: the legal issues

Castan Centre for Human Rights Law

By Patrick Emerton

Yesterday’s High Court case concerning the fate of Tamil asylum seekers detained at sea by Australian authorities has been adjourned until Friday.

The case raises a range of legal questions. These go to the legality of the Australian Government’s policy towards, and treatment of, asylum seekers. They also go to broader questions concerning the relationship between Australian domestic law and international law.

When it comes to dealing with asylum seekers, the Australian Government has three principal sources of power.

The most commonly-used is the Migration Act 1958. Under this law, Australian officials are empowered (and in some circumstances obliged) to detain people in Australian waters who do not have visas.

The High Court of AustraliaThis does not seem to be directly relevant in the current matter, though, as the asylum seekers were not detained within Australian waters. This is why the Solicitor-General, representing the Australian Government in the…

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