Transcript
REUBEN SAUL: It's basically an uninhabited reef system, mainly comprised of coral and sand and it's much more close to Indonesia. I think it's about 144 km south of some of the islands in Indonesia but from Australia it's about 850 km west of Darwin. If someone is trying to enter Australia by boat departing Indonesia there's a strong chance they might end up in the area of what's known as the Territory of Ashmore and Cartier Islands.
The islands themselves, there's not a whole lot there. In fact there is very little there which was an important fact in the case. There's no electricity, there's no infrastructure, there's a few fresh water wells but they're known to be contaminated by cholera. It's not an area that's been used for much other than for some weapons training after the Second World War. The reason why this was important is that when the minister looks at what is the Migration Zone and decides to excise certain parts from the Migration Zone there are some complex rules about what the minister is or is not allowed to excise. The argument in this case was really about whether or not the Ashmore Reef area was defined as a port and if it wasn't a port then it wasn't considered part of the Migration Zone. The case itself was really centred around whether Ashmore Reef was considered to meet the definition of a port. Because there was so little going on there the court decided it was not a port and therefore it couldn't be excised in the way that it was.
BEN ROBINSON DRAWBRIDGE: I understand that the practice was for the Australian Border Force to take any asylum seekers that they intercepted at sea through the Ashmore Reef in order to declare them offshore arrivals.
RS: This is probably one of the most shocking aspects of the case. It's really shone a light on the practice of towing asylum seeker boats into one of these excised areas to ensure that they become unauthorised maritime arrivals and therefore they become subject to this fast-track process. Quite a number of boats were picked up by either Border Force or Customs vessels and were towed or escorted into the lagoon at Ashmore Reef and were told that even though they arrived at Darwin later, because they had gone into the so called excised area they weren't allowed to lodge permanent protection visas, they were subject to detention for many years.
BRD: So you were representing three refugees or asylum seekers and took your case to court who agreed with you that the lagoon at Ashmore Reef was not a port.
RS: The Federal Circuit Court found in two matters that the declaration that this was a port at Ashmore Reef was invalid. The matter was also heard by the full court of the Federal Court and the full court delivered there judgement on that day allowing the appeal and finding the same, that the appointment of the port was invalid.
BRD: Do they have any avenues left to appeal?
RS: We're unsure at this stage whether or not they will seek leave to appeal to the High Court. The main concern at this stage is that the government has introduced a bill into parliament that retrospectively makes this invalid notice valid. It says for that entire time since 2001 that the appointment of the port was valid. That bill is before parliament and it does affect quite a number of people. There's about 1600 applicants which the government has acknowledged may be affected by this.
BRD: But it seems that the Senate has some concerns about this bill and its retroactivity.
RS: There's a scrutiny committee in the senate that has looked into this bill. They have enquired as to the retrospectivity of it. Any legislation that is retrospective obviously does cause great concern to lawyers and indeed the senate because if something had been done wrong in the past, or if this was something that the minister was never permitted to do, it does raise questions why a bill is being introduced now that effectively changes the law over the past 17 years to make something that was done in 20001 correct. That's an extreme measure and it affects an extremely large amount of people.
When a government decides to play around with their border and migration zone and to make rules about how it affects someone's application for refugee status these are very sensitive issues and they need to be done correctly. From an international law perspective, if someone arrives at Australia's doorstep seeking protection there's certain international obligations that need to be followed. Australia's decision to excise or lop off parts of the mainland and say that that's not really Australia is an extreme measure. If the government is to take such measures, as they have, it needs to be done legally and it needs to be done properly. A bill that simply fixes the wrongs of 17 years, we would say, is inadequate.
