Yesterday’s judgment is likely to have only limited application. It was the combination of many unique facts that led Justice North to conclude those rescued were unlawfully detained: no communication with the outside; presence of SAS troops; control of movement from the civil to the naval ship; closure of Christmas Island port and so on.
These facts would not always apply to an Australian naval vessel that rescued people on the high sea or even in Australian waters. If people voluntarily go aboard the rescuing vessel and the master of that vessel determines that the safest course is to go to Port Moresby, Indonesia or Nauru, then there will be no unlawful detention. Rescued people have to go where the ship goes. It was the added unusual elements in this case that made the detention unlawful.
Justice North agreed that a person has to hit land before they can apply for a protection visa or refugee status. Just getting to Australian waters is not enough. (But Australian criminal law and admiralty law applies on the ocean to deal with people smugglers and people who assault, kill or steal.)
The Government can appeal but if the Full Court or High Court agrees with Justice North the rescuees will have to come back.
Maybe that would still be politically all right for Prime Minister John Howard because he will still be seen to stand up to “”queue jumpers” and the “”civil liberties” and legal interferers.
There is nothing in the judgment to stop a naval blockade and the taking of rescued people to whatever foreign port the Navy wants to go and will be accepted, if the Government wants to persist with that inhumanity.