Only Adam Bandt, Andrew Wilkie and Cathy McGowan voted against bill aimed at ensuring detention of up to 1,600 people was lawful

This article is more than 2 years old

This article is more than 2 years old

The Coalition and Labor have voted together to retrospectively amend a flawed piece of asylum legislation in a bid to ensure the detention of up to 1,600 asylum seekers was lawful.

In the House of Representatives, only the Greens MP Adam Bandt and independents Andrew Wilkie and Cathy McGowan voted against the migration (validation of port appointment) bill 2018, which seeks to retrospectively authorise an unlawful declaration of Ashmore Reef as a “port”, with the intention of excluding asylum seekers from making protection claims.

Introducing the bill, the home affairs minister, Peter Dutton, said its effect would simply be maintaining “the status quo for unauthorised maritime arrivals”.

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“The government will not hesitate to legislate to protect the integrity of Australia’s migration framework,” he said.

In 2002, the then immigration minister, Philip Ruddock, attempted to declare Ashmore Reef, off the north-west coast of Western Australia, a “port” so it could be excised from Australia’s migration zone. The government then intercepted asylum boats and sailed asylum seekers through the reef to enter Australia so that they could be detained indefinitely as having arrived “offshore”.

Asylum seekers were told they were excluded from making claims for permanent protection because they had entered the country through Ashmore Reef. In some cases, they were held in immigration detention for several years as a result.

However, the legislation was poorly drafted and the federal court ruled last month that Ashmore Reef was never a port and never properly excised, meaning the government’s detention of up 1,600 people was unlawful, exposing it to potentially significant compensation payouts.



Facebook Twitter Pinterest Ashmore Reef, which lies 320km north-west of the Australian mainland. Photograph: John Pryke/AAP

The invalid assignation existed between 2002 and 2013 when the entirety of Australia was excluded from its own migration zone – a legal sophistry that prevented any boat-borne asylum seeker, regardless of where they arrived, from applying for permanent protection.



The validation of port appointment bill seeks to retrospectively ensure Ruddock’s 2002 declaration was “properly proclaimed”, and legalise all of the government’s actions since, including the indefinite detention of asylum seekers: “ensuring that things done under the Migration Act 1958 which relied directly or indirectly on the terms of the appointment are valid”.

The Senate’s standing scrutiny of bills committee has expressed profound misgivings about retrospectively amending the government’s own error to the disadvantage of at least 1,600 people who have already been denied their legal rights.

It said the government had failed to explain before parliament why this law was necessary and justified and insisted the government must also obey the law: “The governors are, like the governed, bound by the law.”

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However, on Thursday, the bill passed the House of Representatives with unanimous Labor and Coalition support.

The Greens senator Nick McKim said the Labor and Liberal parties were trying to “rewrite history because their detention of up to 1,600 people seeking asylum was based on a legal fiction”.

“Bipartisan support for the ... bill resumes the cosy arrangement of arbitrary cruelty towards refugees and people seeking asylum,” he said.

The bill will now go before the Senate, where it is expected to pass.

Ashmore Reef, formally the Ashmore and Cartier Islands, is four low-lying islands and two reefs, 320km north-west of the Australian mainland, and 150km south of the Indonesian island of Rote.

An external territory of Australia, there are no settlements, buildings, or anchorage there, and no one is permitted to set foot on the islands.

In the 19th century, whalers and miners frequented the islands but, save for a few Indonesian fishermen who still occasionally take shelter within the tiny archipelago, it now has few visitors. Australian customs vessels patrol the sea around it.