Actions over boat people 'clandestine'By Meaghan Shaw
November 21, 2003
A senior judge has accused the Federal Government of clandestine behaviour over what it told lawyers and the court about a boatload of Kurdish asylum seekers.
Northern Territory Supreme Court judge Dean Mildren said the Government's behaviour could imply it had "something to hide".
Justice Mildren said he was "far from satisfied" that the detention of the 14 asylum seekers by a naval officer on the high seas was lawful, because it was not clear the legal provisions used to justify their detention were even applicable in this case.
He also said he was inclined to accept an argument that the excision of 4000 islands from Australia's northern migration zone did not operate retrospectively.
His judgement prompted Labor to propose the urgent recall of a Senate committee to question the Immigration Department over its handling of the boat people. The Democrats and Greens said they would support the motion and the committee is expected to meet on Tuesday night.
Justice Mildren yesterday published his reasons for dismissing a case brought by the Northern Territory Legal Aid Commission, which was seeking a court order to bring the boat back to Australia on the grounds that the men were eligible to apply for asylum and were illegally detained.
In his judgement, he said it was clear the Government wanted to provide no information to the legal aid lawyer acting on behalf of the asylum seekers, or to the public through the media.
"It is plain from this . . . that the policy of the Government was to operate as clandestinely as possible," he said.
Justice Mildren found the lawyer was "deliberately given the runaround" by the department.
He also questioned attempts to prevent the media from getting near the vessel when it was anchored off Melville Island by the imposition of a 3000-metre exclusion zone over the island and the closure of its airport.
"Behaviour of this kind usually implies that there is something to hide," he said.
Justice Mildren said evidence provided by the Government's key witness, immigration official John Eyers, was "quite minimal" and he "found it incredible" that Mr Eyers was not able to say if any of the men had applied for legal assistance or asylum. "Even allowing for the urgency under which this affidavit was sworn, I found it incredible that the (Government's) principal witness could not answer these questions," he said.
The Government last week belatedly admitted the men told defence officials they were seeking asylum despite initially denying any were claiming refuge.
Justice Mildren dismissed the case because the men had no right of entry to the country and, if they were brought to Australia, they would be detained anyway. He also said he could not issue the writ because the lawyers were not seeking the release of the men from detention - they wanted them to have access to help to apply for visas.
A spokesman for Immigration Minister Amanda Vanstone said she would consider the judgement over the next few days.
Shadow attorney-general Robert McClelland said the court had exposed the Howard Government's deceptive handling of the boat people, and called it a rerun of the "children overboard" affair.