There’s not much to the Ashmore and Cartier Islands, 600 kilometres north of Broome: no settlement or buildings or anchorage.
Indonesian fishermen still occasionally take shelter within the tiny archipelago, but the whalers and miners of the 19th century have long since abandoned the place. No one is permitted to set foot on the islands.
But a poorly drafted government regulation from 16 years ago – and a court case that turned on what, precisely, makes a port – could re-open protection applications for more than 1,600 asylum seekers in Australia who “arrived” in Australia through Ashmore Reef. It could also expose the government to significant compensation payouts for unlawful detention.
In 2002, then immigration minister Philip Ruddock gazetted the lagoon near West Island at Ashmore Reef to be a “proclaimed port” so that it could be excised from Australia’s migration zone. The effect of this was to bar any asylum seeker who entered Australia through Ashmore Reef from making a claim for permanent protection.
But a court judgement, delivered in the federal circuit court this month – a full 16 years later – has found the minister had no power to do so.
In order for the minister to declare something a proclaimed port, it must first be a port. And it was not.
As Judge Justin Smith said: “the facts clearly establish that the relevant area was not a ‘port’. 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 unless that transfer was to another vessel.”
For 11 years, the invalid appointment was upheld: asylum seekers were told they were excluded from making claims for permanent protection, and, in many cases, held in immigration detention.
The appointment was superseded when the entirety of Australia was excluded from the Australian migration zone in 2013 – a legal sophistry which prevented any boat-borne asylum seeker, regardless of where they arrived, from applying for permanent protection.
But, according to the Australian government’s own submissions before the court, up to 1,600 asylum seekers may have been denied their right to apply for permanent protection, wider review rights, as well as being unlawfully detained, by the invalid appointment.
Partner with Estrin Saul Lawyers Daniel Estrin brought the challenge in the federal circuit court, on behalf of three asylum seekers – two of whom were brought into Australia through Ashmore Reef, and another, who, for years, was told by the government he had, but who never actually went there because of poor weather.
Estrin said his clients, and potentially more than the 1,600 identified by the government, had had their legal rights unfairly denied them.
“They were all stripped of the opportunity to lodge permanent protection visa applications and to have their case reviewed by the Administrative Appeals Tribunal. The asylum seeker we represented has been in detention for five and a half years. While he can now take his case to the Administrative Appeals Tribunal, he cannot ever lodge a permanent protection visa because the laws have changed since his arrival.”
In response to the court challenge, the federal government has moved an uncommon piece of legislation – seeking to retrospectively legitimise Ruddock’s faulty appointment.
The migration (validation of port appointment) bill 2018, would seek to ensure that Ashmore Reef was a “properly proclaimed port” and that “all things done … which relied on the terms … are valid and effective”.
“The effect of the bill will simply maintain the status quo for unauthorised maritime arrivals … The government will not hesitate to legislate to protect the integrity of Australia’s migration framework,” home affairs minister Peter Dutton told parliament.
Estrin said the level of retrospectivity in the government’s bill was unprecedented.
“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.
“Whatever Australians think about asylum seeker policies, we should all be outraged at the government’s willingness to simply patch up 17 years of human rights violations.”
Estrin said at a bare minimum, the government should allow those asylum seekers affected to lodge applications for permanent protection, which they were always entitled to do.
“As for compensation for lost time in detention – that is something we are actively exploring.”
The bill is currently before the house of representatives, but the Senate’s standing scrutiny of bills committee has profound misgivings about retrospectively amending the government’s own error to the disadvantage of at least 1600 people who have already been denied their legal rights.
“Persons should be able to order their affairs on the basis of the law as it stands,” the committee said.
“The question of whether a person is or is not a unlawful maritime arrival is of great significance with respect to how a person’s rights and obligations under the Migration Act should be determined and how their applications should have proceeded.”
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”.
“The committee expects that legislation which adversely affects individuals through its retrospective operation should be thoroughly justified in the explanatory memorandum. Such legislation can undermine values associated with the rule of law.”
