By sending asylum seekers to Ashmore Reef, government wanted to ensure boat arrivals could be legally detained offshore

This article is more than 2 years old

This article is more than 2 years old

Australian customs ships intercepted asylum seeker boats and sailed those on board for days, not to Australia but to remote Ashmore Reef, so the asylum seekers could then be sent for offshore processing.

By sailing asylum seekers in Australian government vessels through Ashmore Reef – far closer to the coast of Indonesia than Australia – those asylum seekers were judged to be “offshore entries” to Australia, and therefore eligible to be sent to immigration centres on Nauru or Papua New Guinea.

Some of those taken through the reef remain in immigration detention still, more than five years later.

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But that “offshore entry” connivance has been found to be unlawful.

A court judgment this month found that Australia’s attempted excision of the Ashmore and Cartier islands (of which the reef is a part) was invalid, and up to 1,600 asylum cases may need to be revisited because of careless legislative drafting.

The excision was believed to have existed for 11 years – between 2002 and 2013 – but the court found it was never valid because the lagoon at Ashmore Reef, declared a “proclaimed port” by the then immigration minister, Philip Ruddock, was never a port at all.

“The area was an area of water within a reef. It was, it seems, navigable, but it was not disputed that the area was not, and could not be, used for the transfer of goods or passengers from vessels,” Judge Justin Smith said in the federal circuit court.

The aim of the attempted excision of Ashmore was to ensure those who “entered” Australia through the reef were judged to be “offshore arrivals”, which the government could then legally send to offshore processing.

In one example an asylum seeker boat – given the appellation SIEV Lambeth – was intercepted in April 2013.

The immigration department – which is now within the Department of Home Affairs – gave its account to the commonwealth ombudsman: “A small number of passengers who required medical treatment were brought directly to Darwin by a naval vessel, HMAS Childers. These individuals … entered the migration zone in Darwin and were classified as ‘direct entry arrivals’.

“The remainder of the passengers were transferred to Australian Customs Vessel Ocean Protector which then sailed westwards for two days to Ashmore where the ship transited through Ashmore Lagoon.

“It was this action of transiting the IMAs [illegal maritime arrivals] through Ashmore Lagoon that rendered these IMAs as offshore entry persons. Ocean Protector then sailed to Darwin where the IMAs were disembarked and taken into immigration detention.”

Department sources confirmed that some of those on board SIEV Lambert remain in immigration detention, more than five years after it arrived in Australia.

Their ongoing detention is directly as a result of having been “transited through” Ashmore Reef in order to render them “offshore arrivals”, a practice that the court judgment has rendered illegitimate.

The government has legislation currently before parliament seeking to retrospectively legitimise the Ruddock declaration of 2002.

The migration (validation of port appointment) bill 2018 seeks to ensure that Ashmore Reef was a “properly proclaimed port” and that “all things done … which relied on the terms … are valid and effective”.

Daniel Estrin, a lawyer who brought the challenge to the Ashmore Reef excision in the federal circuit court, said the retrospective legislation was a dangerous attack on the rule of law.

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“It is a cheap Band-Aid approach to a flawed policy and undermines our rule of law. When you deny people their rights and detain them without proper basis, you don’t get to fix it retrospectively. Australians expect their government to own up and wear the consequences of its mistakes.”

The Senate also has issues with the retrospective proposed law – its scrutiny of bills committee has reported serious misgivings.

“Persons should be able to order their affairs on the basis of the law as it stands,” the committee said. “The governors are, like the governed, bound by the law.”