Australia: A Retrospective Legal Fix for Ashmore Reef, 2002 & 2018
A Brief Overview:
The revelation that the legislation designed to deny people their right to protection from Australia was flawed inspired a bipartisan rush for a retrospective fix. Suddenly 1600 asylum seeker boats that had been deliberately intercepted and sailed through the supposed Ashmore Reef Port were in a position to 1. claim permanent protection and 2. seek compensation.
In 2002 former LNP Immigration Minister, Phillip Ruddock declared Ashmore Reef to be a Port for the purpose of excising or removing the area from Australia's migration zone.
Henceforth the government intercepted asylum boats and sailed them through the reef.
Entering Australia through this route ensured asylum seekers would be excluded from making claims for permanent protection as they would be classified as 'offshore entry persons' / 'unauthorised maritime arrivals' under the Migration Act.
This allowed them to be detained indefinitely as having arrived “offshore” In some cases, they were held in immigration detention for years..
The Legislation however, was flawed and did not do what it was created to do. This came to light in 2018.
On 6 August 2018, the Full Federal Court handed down a judgment, DBB16 v Minister for Immigration and Border Protection [2018]
Reasons for the Judgement:
... a citizen of Bangladesh who arrived in Australia by boat and without a visa on 20 October 2012 made an application for a protection visa on 26 November 2015. On 11 July 2016 a delegate of the Minister for Immigration made a decision not to grant the applicant a protection visa. That decision was then referred to the Immigration Assessment Authority (IAA).
The IAA conducted a review of the delegate’s decision and made a decision to affirm it on 19 September 2016.
In his Judgment, Judge Smith made the following declarations:
(i) A declaration that the purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette No GN 3 on 23 January 2002 is invalid.
(ii) A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
Essentially, the detention of 1600 asylum seekers and refugees was suddenly questionable and the threat of a potential class action loomed.
The invalid assignation existed between 2002 and 2013 when the entirety of Australia was excluded from its own migration zone (Doherty).
The government asked for time to assess the impact of the DBB16 Judgment.
In response to the DBB16 Judgment, Peter Dutton, the then Home Affairs Minister introduced the Migration (validation of port appointment) bill 2018 for a first reading on 20 June 2018. The intention of this bill was to retrospectively amend the Phillip Ruddock's 2002 legislation to ensure previous years of operation were made legal.
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. “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 (Doherty).
Adamb Bandt, Greens, spoke in the House of Representatives after the Second Reading of the bill.
... the day after we have people reaching across the chamber and saying that the parliament stands united against people who want to do things that most people in Australia would find abhorrent—the day after that happens—Labor joins with the Liberals to stop up to 1,600 people having the right to even apply for asylum in this country, people who have committed no sin other than to come and seek from us protection and a better life. Many of these up to 1,600 people have been kept in detention—and, we now find out, without any legal basis.
And what do we do? Labor comes in here and joins with the Liberals and says, 'We will now pass a law to retrospectively justify the unlawful detention of people.' They dress it up as saying, 'We're going to hold the government to account, because we don't like typos'. Well, this wasn't a typo. We are in this situation because the previous government, a Liberal government, took the step of trying to circumvent the rule of law. The previous government said, 'We are going to circumvent the rule of law by pretending that parts of Australia and the waters surrounding them and islands surrounding them aren't Australia.' They said, 'We will find a place around the Ashmore Reef, 600 kilometres away from Broome, and we'll draw a circle around it and we will say that it's no longer part of the migration zone, so if you happen to come there or through there, then don't seek Australia's protection.
The fiction that they used to justify it at the time was to say: 'We'll call it a port. We know we're doing something dodgy and taking away a basic human right from people'—namely, the right to seek protection—'How will we justify it? We'll call it a port.' Of course, it's not a port. It's a reef. It's a set of small islands. A court held the government to account and said: 'That fiction that you used to circumvent the rule of law and take away basic rights of people and then subsequently detain many of them cannot be upheld. It is an unlawful fiction.' They said that as a result there are people—we estimate up to 1,600—who now have the right to come to Australia and seek asylum. They won't automatically be granted it, but they've now got the basic right to come and seek asylum. As I said, many of these people have been unlawfully detained because the government never had a legal basis to do it. I think we probably owe these people compensation, because it turns out that we have denied them their basic human rights without any legal basis to do so. But even if you don't agree that we owe them compensation, at the very least we now owe them the right to process their claims for asylum, because the court has said, 'You were wrong, Parliament'—Minister Ruddock and Prime Minister Howard—try to circumvent the rule of law.' (link to full speech below)
The Senate Scrutiny of Bills Committee was also concerned about undermining the rule of law.
Such legislation can undermine values associated with the rule of law. One such value is that persons should be able to order their affairs on the basis of the law as it stands.
Retrospective legislation is often thought to be particularly problematic when affected persons have relied to their detriment on a reasonable expectation that the law on which they have based their decisions will not be altered retrospectively.
The Senate was also concerned about the principal of governors exceeding their authority
Another important rule of law principle is that the governors are, like the governed, bound by the law and cannot exceed their legal authority. Retrospective validation of government decisions and actions can undermine this principle.
In the House of Representatives, only the Greens MP Adam Bandt and independents Andrew Wilkie and Cathy McGowan voted against this bill.
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.
Content Links
New Questions about
Increasing Australian Migration Zone Exclusion
Politics: Capitalising on Boat Arrivals
Politics: Dehumanising seeking asylum
Politics: Senate Standing Committee for the Scrutiny of Bills
Assessment of the Migration (validation of port appointment) bill 2018 Politics: Wayne Swan's Valedictory speech (... When the ship was turned back, something else floated into our harbours in its wake: American race-based dog-whistle politics).
Onlines: quotes from news articles
Ashmore Islands boat arrivals 1996, 1997, 1998, 1999, 2000 Notes relating to refugee homeland instability
About Ashmore Reef
Is Ashmore Reef part of Australia?
Commonly accepted understanding: The reef is an area of approximately, and encloses three islands – East, Middle, and West – that make up the Ashmore Island group The Ashmore Islands and the reef are located 450 nm west of Darwin, 330 nm north of Broome, and 90 nm south of the Indonesian island of Roti.
The three Ashmore Islands and adjoining reef have formally been a part of Australia since the Ashmore and Cartier Islands Acceptance Act 1933 entered into force on May 3, 1934. That followed King George V signing an Order-in-Council on July 23, 1931 placing the islands under Australian control.
A New Maritime Boundary Dispute
There has always been a certain ambiguity about the status of the reef and the islands since November 1974 when Australia and Indonesia signed a Memorandum of Understanding permitting Indonesia fishers to undertake traditional fishing practices in the area.
... The status is now in the spotlight following recent statements by Indonesia’s Tourism Minister Sandiaga Uno demanding that Australia hand over the islands and reefs to Indonesia. This raises the specter of Australia and Indonesia being involved in a territorial dispute with significant maritime dimensions.
... Sandiaga Uno’s demand with respect to Indonesian interests over the Ashmore Islands may simply be an ambit claim that could result in litigation before Australian courts, or it could possibly be the first foray in an Indonesian diplomatic initiative to get a better deal for Indonesian fishers in the reefs around the islands that extend into the Indian Ocean.
6 November 2022 By Donald R. Rothwell Donald R Rothwell is one of Australia’s leading experts in International Law with specific focus on the law of the sea; law of the polar regions, use of force and implementation of international law within Australia.
Australian & Indonesian MOU
Ashmore has been regularly visited and fished by Indonesian fishermen since the early eighteenth century. A 1974 Memorandum of Understanding (MOU) between Australia and Indonesia sets out arrangements by which traditional fishers can access resources in Australia's territorial sea in the region. This allows traditional Indonesian fishermen to access parts of Ashmore for shelter, freshwater and to visit grave sites. The area, known as the MOU Box, contains the Ashmore and Cartier Islands Territory.
Boat Turn back policies
2001
Operation Relex
Operation Relex was introduced by the Howard Government on 3 September 2001 with the aim to deter people from arriving in Australia by boat by denying them access to Australia. Under this policy the Royal Australian Navy was to intercept and board ‘Suspected Illegal Entry Vessels’ (SIEVs) – that is, boats suspected of carrying people seeking to come to Australia without a visa – when they entered Australia’s contiguous zone (24 nautical miles from the Australian coast). The Navy was directed to return these boats to the edge of Indonesian territorial waters, either by operating the boat under its own engine power or towing it.
2002
Operation Relex II
Operation Relex ended on 13 March 2002 to enable information relating to the operation to be made available to the Senate Select Committee’s Inquiry into a Certain Maritime Incident (also known as the ‘Children Overboard Affair’).
It was succeeded by Operation Relex II, which commenced on 14 March 2002.
In total, 17 SIEVs were intercepted under the Howard Government, although only five were turned around.
Increasing Australian Migration Zone Exclusion
June 20: Ruddock introduces bill to excise islands
Immigration Minister Philip Ruddock today introduced a bill to parliament to slice thousands of Australian islands off the map for migration purposes.
The proposed laws were introduced in the House of Representatives after the Senate yesterday overturned a regulation which expanded Australia's migration exclusion zone to the 3,000 northern islands.
... Mr Ruddock said he had intelligence there were active people smugglers in the Asia-Pacific region who were exploring ways of continuing their trade either in Australia or to other countries. There are several thousand people who are seeking movement by people smugglers, he said.
MEET THE PRESS: Interview with Minister for Immigration, Philip Ruddock - 23 June, 2002
An abbreviated version of the text - full version link in References
PAUL BONGIORNO: Simon Crean says that your own task force advised him that excising the islands wouldn't stop these people trying to come. Hasn't he got a point?
PHILIP RUDDOCK: No. He asked the task force to give him a cast-iron guarantee that if this measure was implemented, it would stop boats leaving. Now, nobody can give you that cast-iron guarantee... Let's be very clear about this - there is information that suggests that smugglers are again planning to try and deliver people to Australia or into the Pacific....
PETER CHARLTON: Minister, it's now been months since we've had any sizeable boats come towards Australia, really since the 'Tampa' picked those people up. The military blockade, the naval blockade has worked, has it not?
PHILIP RUDDOCK: ..... The first point I would make is that we've gone eight months without substantial boat arrivals and that is an indication that the range of measures, including essentially Operation 'Relex' which has enabled us to return four vessels to Indonesia, has had a significant impact on smuggling operations.
PETER CHARLTON: So does the Government see that operation continuing indefinitely?
PHILIP RUDDOCK: Well, we see it as continuing while there is a requirement for it.
2003
Politics: Capitalising on Boat Arrivals
From People Smuggling: National Myths and Realities
A speech given by former ADF Lt Colonel (retired) and senior intelligence officer for the Office of National Assessments (ONA), Andrew Wilkie - delivered to the Charles Darwin Symposium in Darwin:
... these latest boats would seem not to have been the first to seek to capitalise on any apparent reduction in Australian counter - measures - the run of boats prior to the 2001 election also appears to have been influenced by the adjustment of ADF force levels.
On 1 September 2001 the Prime Minister announced 'an enhanced surveillance patrol and response operation in international waters between the Indonesian archipelago and Australia.' Operation Relex, as it was to become known, was to 'involve five navy vessels and four P3 Orion aircraft.' The PM noted that the 'enhanced operation will be reviewed after three weeks'.
Straight away Relex appeared to pay dividends. Navy vessels intercepted SIEV 1 on 7 September, SIEV 2 on 10 September and SIEV 3 on 12 September. The ADF's frustrating, dangerous and contentious work was at least sending a signal to the smugglers that Australia was starting to take them more seriously. More importantly, it was also reducing the likelihood of a humanitarian disaster.
On 23 September the Defence Minister announced a review had been completed and 'the Government believes that the operation is working to good effect and will continue.'
The Minister acknowledged that 'the presence of major fleet units and RAAF aircraft has reinforced the Government's determination to combat people smuggling and continues to send a strong message about the Government's resolve.' The Minister went even further later in the day when during an ABC TV interview he claimed that 'the decision that we've made is to continue the build-up in the north.'
At least three things are striking about these announcements.
The Government implied that Relex would not be varied; that in fact it was being increased.
The Government acknowledged its understanding of the importance of Relex as a deterrent.
And the Government was stressing its border security credentials only two weeks from calling the election.
All of which sounds fine.
Except that the Minister's statement was wildly misleading, because already the Government was secretly rolling back Relex; a point conceded by the Minister himself when challenged on the matter on the Channel Nine Sunday programme on 30 September and at a doorstop interview on 2 October.
Despite all the Government's fanfare and claims about sending the ADF to protect Australia from irregular immigrants, Relex had already been virtually halved.
The Government had decided 'we are maintaining a sufficient military capability in that operation to achieve the objectives we first set at the start of the three weeks.' Which begs a question about exactly what objectives the Government was pursuing. Because, in the face of the much diminished Relex, the SIEVS kept coming.
... The importance of effective deterrence during this time was clearly understood by the Government. In fact, maintaining credible deterrence was one of the Government's arguments against the ALP's coast guard proposal... yet the Government was secretly cutting back Relex.
And it was doing so despite clear indications that the smuggling industry in Indonesia had reached critical mass. Countless smugglers were active, more boats and crews were available than they could ever use, and thousands of potential clients were ready to travel.
... any apparent reduction would have come quickly to the attention of the smugglers from their contacts with corrupt Indonesian officials as well as the crews of the hundreds of Indonesian boats that operate routinely between Indonesia and Australia. And, of course, by late September news of the reduction in Relex had made the Australian media, again available in Indonesia instantly via the internet... Just a whiff of news about fewer Australian navy vessels would have been all that was required to encourage them to send more boats.
Keeping things secret from the smugglers was one thing.
Keeping them secret from the Australian public was another. Because the arrival of boats was a political hot potato and the Government needed to stress its border security credentials. And time for calling the election was not far off.
The Government was positioning itself nicely to run a campaign based on its tough approach to dealing with asylum seekers.
Of course in the middle of all this were the 11 September terrorist attacks in the US, events surprisingly irrelevant to Relex during September, because the commitment of ships and aircraft to the war on terror had not been decided upon, prepared for, or announced, at the time Relex was being virtually halved in September.
In fact, one of the key ships to be sent eventually to the war, HMAS Adelaide, was as late as early October one of the handful of ships still committed to Relex.
It was of course the vessel that distinguished itself in the rescue of hundreds of people off SIEV 4, but later was embroiled in the children overboard affair.
The eventual announcement of Australia's commitment of ships and planes to the war did however compound the perception in the smugglers' minds that Australia was reducing its surveillance between Indonesia and Australia. At least now the Government had an excuse for any weakness in Relex.
The smugglers would probably have known that the Adelaide in particular was involved in Relex. So it's high profile 24 October farewell from Western Australia for the war by the PM would have struck a chord with the gangs.
The Government couldn't have done a much better job of encouraging more boats in the last couple of weeks of the campaign. The smugglers had good reason to believe that a much - reduced fleet was left blocking the way to Australia.
Polling around this time was indicating a swing back to the ALP. Newspoll and ACNielsen were recording strong rises for Labour while the Bulletin Morgan poll indicated a narrow Labor lead. And all the pressure on the Government over the children overboard affair was still to come. (Full speech link in references)
Politics: Dehumanising seeking asylum
From the Senate Inquiry into the "Children Overboard" scandal
An interview during the Senate Select Committee’s Inquiry into a Certain Maritime Incident (Children Overboard scandal) revealed new attitudes towards seeking asylum insisted upon by the Howard government.
‘what we have is the Minister for Defence saying in the immediate post-Tampa environment, ‘Don’t humanise the refugees’... The basic instruction, Mr Humphreys said, was that no photographs of asylum seekers were to be taken at all. He noted that Mr Hampton informed him that he was in daily discussion with ministerial officers from Immigration, Foreign Affairs, and Attorney-General’s, and with the Prime Minister’s office concerning public affairs handling of Operation Relex The Committee notes that their refusal to give evidence to the inquiry meant that it was unable question either Mr Hampton or Mr Reith or the Prime Minister’s Office about the basis for the instruction that refugees were not to be ‘humanised’.
On the evidence available, however, it seems to the Committee that the public affairs plan for Operation Relex imposed upon the Department of Defence by the Minister’s Office had two clear objectives.
The first was to ensure that the Minister retained absolute control over the facts which could and could not become public during the Operation. The second was to ensure that no imagery that could conceivably garner sympathy or cause misgivings about the aggressive new border protection regime would find its way into the public domain.
2006
Operation Resolute
Operation Relex II ended on 16 July 2006 when ‘domestic maritime security activities’ were consolidated into a single operation called Operation Resolute.
2012
Expert Panel Advice on boat turnbacks
In 2012, the Gillard government commissioned an expert advisory panel to make recommendations about Australia’s asylum seeker policy.
The Expert Panel on Asylum Seekers’ report recommended that a policy of turning back boats to Indonesia should only be reintroduced where certain conditions were present, including consent from the country to which boats were being returned, compliance with domestic and international law, and respect for obligations under the Safety of Life at Sea Convention.
The Panel concluded that the conditions for ‘effective, lawful and safe’ turnbacks were not met at the time (The Kaldor Centre).
2013
Operation Sovereign Borders
In September 2013, the newly-elected Coalition Government introduced ‘Operation Sovereign Borders’ (OSB), a military-led inter-agency border security initiative which incorporates offshore processing, activities to disrupt and deter people smuggling, and interception of boats.
Under OSB the government’s policy is to turn back boats ‘where it is safe to do so’.1
It is not clear how ‘safety’ is defined, however the Department of Immigration and Border Protection (DIBP) indicates that this is the responsibility of the commanding officer of the vessel to determine.
In early April 2017, the Minister for Immigration stated that 30 boats (carrying about 765 people) had been intercepted since the beginning of OSB (The Kaldor Centre).
2018
Politics: Senate Standing Committee for the Scrutiny of Bills
Assessment of the Migration (validation of port appointment) bill 2018
Summary of events - Senate Standing Committee for the Scrutiny of Bills 2018
1.2 Under paragraph 5(5)(a) of the Migration Act 1958 (the Migration Act) the minister may, by notice published in the Gazette, appoint ports as proclaimed ports for the purposes of the Migration Act and fix the limits of those ports. On 23 January 2002 a notice was published purporting to appoint an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port (2002 appointment). The effect of this was to ensure that people arriving in boats without a valid visa who entered certain waters of the Territory of Ashmore and Cartier Islands, would be entering an 'excised offshore place' for the purposes of the Migration Act and would thereby become 'offshore entry persons', now 'unauthorised maritime arrivals' under the Migration Act.
Amendments required: Senate Standing Committee for the Scrutiny of Bills 2018
1.3 Clause 3 seeks to retrospectively validate the 2002 appointment, as the 2002 appointment inadvertently omitted a number of details relating to the geographical coordinates.3 Subclause 3(2) provides that the 2002 appointment has, and is taken to have always had, effect as if the words identifying the geographical coordinates of the area were omitted and corrected geographical coordinates were substituted. Clause 4 also seeks to validate things done under the Migration Act at any time prior to the commencement of this Act that would be invalid or ineffective directly or indirectly because of the terms of the 2002 appointment.
1.4 In addition, clause 5 seeks to provide that the Act will not affect rights or liabilities arising between parties to proceedings where judgment has been delivered by a court before these provisions commence, if the validity of the appointment was at issue in the proceedings and the judgment set aside the appointment or declared it to be invalid. The statement of compatibility states that this clause is included as there are ongoing proceedings in the Federal Circuit Court and Federal Court which are currently challenging the validity of the 2002 appointment.
1.5 The committee notes that if the 2002 appointment was invalidly made, it would appear that persons who entered certain waters of the Territory of Ashmore and Cartier Islands would not validly have been classified as 'offshore entry persons', or now as 'unauthorised maritime arrivals' (UMA). Whether or not a person is a UMA is of great significance to how their rights and obligations under the Migration Act are to be determined and how their applications may be processed. UMAs do not have a lawful right to travel to, enter into, or remain, in Australia. In addition, persons who entered the port between 13 August 2012 and 1 June 2013 without a valid visa also became 'fast track applicants' under the Migration Act,6 which resulted in a different system applying for the assessment of their applications for refugee status.
Committee Statements - Senate Standing Committee for the Scrutiny of Bills 2018
1.6 The committee considers that, in seeking to retrospectively validate the 2002 appointment, the bill is apt to adversely affect any person who seeks to challenge an act or decision under the Migration Act on the basis that the impugned action or decision is invalid under the 2002 appointment.
Committee asks for a thorough justification for changes - Senate Standing Committee for the Scrutiny of Bills 2018
The committee expects that legislation which adversely affects individuals through its retrospective operation should be thoroughly justified in the explanatory memorandum.
Committee queries the undermining of the rule of law - Senate Standing Committee for the Scrutiny of Bills 2018
Such legislation can undermine values associated with the rule of law. One such value is that persons should be able to order their affairs on the basis of the law as it stands.
Retrospective legislation is often thought to be particularly problematic when affected persons have relied to their detriment on a reasonable expectation that the law on which they have based their decisions will not be altered retrospectively.
Committee notes that governors are bound by the law and cannot exceed their legal authority - Senate Standing Committee for the Scrutiny of Bills 2018
Another important rule of law principle is that the governors are, like the governed, bound by the law and cannot exceed their legal authority. Retrospective validation of government decisions and actions can undermine this principle.
Committee notes the bill will ensure government actions since 2002 are legal - Senate Standing Committee for the Scrutiny of Bills 2018
1.7 In this instance, the statement of compatibility explains that the purpose of the bill is to ensure that there was a properly proclaimed port at Ashmore and Cartier Islands at all relevant times and ensure that things done under the Migration Act, such as actions taken or decisions made, which relied directly or indirectly on the terms of the 2002 appointment are also valid and effective.
The statement of compatibility also explains that the effect of the bill will be to 'maintain the status quo for unauthorised maritime arrivals and, where relevant, fast track applicants, under the Act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013.'
1.8 The committee notes these explanations as to why it is considered necessary to retrospectively validate the 2002 appointment.
Committee notes the bill will only apply to ongoing cases where judgment has not been delivered ... - Senate Standing Committee for the Scrutiny of Bills 2018
However, it also notes that, while the bill would not apply to cases where a judgment has been delivered prior to the commencement of its provisions, it would apply to ongoing cases in which a judgment has not yet been delivered when the Act commences.
The committee also notes that, as stated in the minister's second reading speech, a successful legal challenge to the 2002 appointment could mean that affected persons did not enter Australia at an excised offshore place and therefore are not UMAs under the Migration Act.9
The question of whether a person is or is not a UMA 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.
The committee therefore considers the explanatory materials do not provide a sufficiently comprehensive justification for the retrospective validation of the 2002 appointment.
1.9 The committee therefore requests the minister's detailed advice as to:
the basis of the legal challenges to the validity of the 2002 appointment and the general arguments raised by the applicants in those cases;
the number of persons who entered the relevant waters of the Territory of Ashmore and Cartier Islands since 23 January 2002 to date. In particular, how many of these people, if any:
are yet to have their asylum applications finally determined;
have been granted a protection visa;
are in offshore detention;
have had their applications refused but remain in Australia;
how the persons in each of the categories above would have been treated if the 2002 appointment had not been made, and the extent of any detriment such persons may suffer if the 2002 appointment is retrospectively validated; and the fairness of applying the bill to persons who have instituted proceedings but where judgment is not delivered before commencement of the Act (noting that such persons may be liable to an adverse costs order).
Politics: Wayne Swan's Valedictory speech
a section only
a section only
... the divisive tone that’s pervaded this place in the past week has made me realise that reaching out to some of those opposite is going to be harder than I hoped. Maybe a write off. But all the same, I want to say something about that, because it needs to be said.
You see, I was here during the Tampa episode in 2001, and recall the way it changed us.
The night John Howard sprung his Tampa trap in the parliament, otherwise known as the Border Protection Bill. I was on the couch at home recovering from prostate cancer surgery. In the weeks that followed the politics of fear drowned out domestic political issues.
Before then, covert appeals to racism and xenophobia were regarded as unworthy of our country’s elected representatives.
When the ship was turned back, something else floated into our harbours in its wake: American race-based dog-whistle politics. That politics isn’t new. It’s likely as old as politics itself. We all thought it had died before 2001. But we were wrong.
During the 1980s it was infamously brought back to life in America during the 1988 Presidential election, a determined strategy to link the black community with violent crime. It worked. It became the template for what happened in Australia in 2001, a scab that’s remained ever since.
Sure enough, eighteen years later, it is being used again. Read the Hansard and the ministerial transcripts of the past few days. The only thing missing is the subtlety of yesteryear.
Soon after that 1988 campaign, the architect of it, strategist Lee Atwater, contracted fatal brain cancer. Before he died he set out to make peace with the world. He said that his illness had helped him to see that what was missing in society is what was missing in him: “a little heart, a lot of brotherhood”; and that his own actions had contributed to “a spiritual vacuum at the heart of American society”, a “tumor of the soul”.
The man who invented the political strategy now dusted off once again by those opposite, repented of it. It says a lot.
My hope is that this ugly approach is so soundly defeated at the ballot box that it can never arise again.
That’s the good news, Mr Speaker. It won’t work. Not this time.
This is one of the great elements of democracy: it is moral force. Sometimes parties can lose the moral right to govern before they lose their numerical majority in parliament.
For the Coalition, the first is already gone. And the second is about to follow in its wake.
ONLINE: Key Quotes from News Articles
The whole of Australia was exlcuded from its own migration zone
The Guardian... 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 (Doherty).
Attempted to exclude Ashmore Reef from Australia's migration zone.
The Guardian... 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 (Doherty).
Boats then intercepted boats through the reef
The Guardian... 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” (Doherty).
Asylum Seekers were excluded from making claims for protection
The Guardian... 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 (Doherty).
Poorly drafted legislation:
The Guardian...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. (Doherty).
The Coalition and Labor voted to amend the legislation
The Guardian... 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 (Doherty).
Only THREE Members of Parliament voted against the legislation
The Guardian... 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 (Doherty).
The Bill was retrospectively changed to legalise the government's actions since 2002
The Guardian... 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” (Doherty).
Background
1996: Ashmore Islands boat arrivals
17 January, Ashmore Islands (Sandpiper) 4 adults (Iraqi). 4 refugee status.
19 May, Ashmore Islands (Correa) 6 adults (Sri Lankan). 6 departures
7 September, Ashmore Islands (Iris) 7 adults (Iraqi). 7 refugee status.
9 September, Ashmore Islands (Juniper) 5 adults (Iraqi). 5 refugee status.
3 October, Ashmore Islands (Lambertia) 8 adults (Iraqi). 8 refugee status.
8 October, Ashmore Islands (Melaleuca) 24 - 23 adults, 1 child (16 Iraqi, 8 Pakistani). 16 refugee status, 8 departures.
11 December, Ashmore Islands (Nandina) 12 adults (10 Iraqi, 1 Algerian, 1 Moroccan). 11 refugee status, 1 departure.
1997: Ashmore Islands boat arrivals
10 February, Ashmore Islands (Pilliga) 7 adults (2 Iraqi, 1 Iranian, 4 Algerian). 7 refugee status
14 November, Ashmore Islands (Yulbah) 8 ñ 6 adults, 2 children (Afghans). 8 refugee status.
1998: Ashmore Islands boat arrivals
7 February, Ashmore Islands (Barcoo) 4 adults (1 Algerian, 1 Moroccan, 2 Senegalese). 3 departures, 1 refugee status.
9 April, Ashmore Islands (Eyre) 6 adults (Bangladeshi). 6 departures.
27 May, Ashmore Islands (Glenelg) 7 adults (Bangladeshi). 7 departures.
5 June, Ashmore Islands (Hawkesbury) 10 adults (Bangladeshi). 10 departures.
3 July, Ashmore Islands (Indulkana) 5 adults (4 Bangladeshi, 1 Indonesian). 5 departures.
11 September, Ashmore Islands (Murrumbidgee) 2 adults, (Bangladeshi). 2 departures.
24 November, Ashmore Islands (Namoi) 7 adults (Sri Lankan). 7 departures.
30 November, Ashmore Islands (Ord) 15 adults (4 Iraqi, 11 Turks). 14 refugee status, 1 departure.
1999: Ashmore Islands boat arrivals
15 February 1999, Ashmore Islands (Vanrook) 10 adults (5 Afghan, 3 Algerian, 1 Iraqi, 1 Pakistani). 2 detention, 7 refugees, 1 departure.
21 February 1999, Ashmore Islands (Warrego) 32 adults (Turkish). 19 refugee status, 13 departures.
26 March 1999, Ashmore Islands (Constantine) 8 (2 Iraqis, 2 Kuwaitis, 3 Afghans, 1 Bangladeshi). 7 refugee status, 1 detention.
21 April 1999, Ashmore Islands (Gambier) 3 adults (Turkish). 3 refugees.
24 April 1999, Ashmore Islands (Hotham) 15 adults (1 Bangladeshi, 2 Pakistani, 12 Iraqi). 12 refugee status, 3 departures.
7 May 1999, Ashmore Islands (Isa) 54 - 53 adults, 1 child (43 Turkish, 6 Iraqi, 4 Afghani, 1 Kuwaiti). 39 refugees, 2 detention, 13 departures.
20 May 1999, Ashmore Islands (Majura) 7 adults (Bangladeshi). 4 detention, 1 refugee status, 2 departures.
24 May 1999, Ashmore Islands (Nelson) 10 adults (6 Iraqi, 4 Afghans). 10 refugee status.
7 June 1999, Ashmore Islands (Roe) 10 adults (Afghani). 10 refugee status.
12 June 1999, Ashmore Islands (Tabletop) 76 - 74 adults, 2 children (57 Turkish, 10 Afghani, 9 Iraqi). 6 detention, 35 refugee status, 35 departures.
25 June 1999, Ashmore Islands (Weddin) 12 adults (Afghani). 12 refugee status.
29 June 1999, Ashmore Islands (X-Keten) 53 - 46 adults, 7 children (40 Iraqi, 12 Afghan, 1 Algerian). 51 refugee status, 1 detention, 1 TPV.
12 July 1999, Ashmore Islands (York) 6 adults (Indian). 5 departures 1 detention.
12 July 1999, Ashmore Islands (Zeil) 16 - 11 adults, 5 children (Afghani). 16 refugee status.
20 July 1999, Christmas Island (Augustus) 4 - 3 adults, 1 child (Sri Lankan). 5 refugee status.
21 July 1999, Ashmore Islands (Buller) 7 adults (5 Afghani, 2 Iranian). 6 refugee status, 1 detention.
28 July 1999, Ashmore Islands (Calder) 14 adults (Turkish). 14 departures.
31 July 1999, Ashmore Islands (Druitt) 44 adults (30 Iraqi, 6 Afghani, 5 Kuwaiti, 2 Iranian, 1 Sri Lankan). 1 detention, 42 refugee status, 1 departure.
11 August 1999, Ashmore Islands (Eliza) 16 adults (11 Afghan, 4 Sri Lankan, 1 Pakistani). 2 detention, 10 refugee status, 1 TPV, 3 departures.
23 August 1999, Ashmore Islands (Grenfell) 8 adults (Iraqi). 8 refugee status.
26 August 1999, Ashmore Islands (Hawthorn) 12 adults - plus 1 baby* (Afghan). 13 TPV.
30 August 1999, Ashmore Islands (Ida) 26 - 24 adults, 2 children (20 Afghan, 2 Sri Lankan, 2 Palestinian). 24 TPV, 2 departures.
31 August 1999, Ashmore Islands (Jagged) 86 - 73 adults, 13 children (79 Iraqi, 2 Afghan, 2 Iranian, 2 Kuwaiti, 1 Bahrainian). 13 detention, 71 TPV, 2 departures.
3 September 1999, Ashmore Islands (Kembla) 35 - 34 adults, 1 child (34 Afghan, 1 Sri Lankan). 35 TPV.
17 September 1999, Ashmore Islands (Macedon) 6 adults (4 Iraqi, 1 Bangaldeshi, 1 Myanmar). 4 TPV, 2 detention.
19 September 1999, Ashmore Islands (Nebo) 8 adults (8 Turkish). 5 detention, 1 TPV, 5 departures.
21 September 1999, Ashmore Islands (Owen) 6 adults (Pakistani). 5 departures, 1 detention.
24 September 1999, Ashmore Islands (Panorama) 49 - 46 adults, 3 minors, (30 Iraqi, 10 Bangladeshi, 7 Afghans, 1 Syrian, 1 Indonesian). 11 detention, 33 TPV, 3 refugee status, 1 bridging visa, 1 departure.
26 September 1999, Ashmore Islands (Quakers) 8 - 7 adults, 1 minor (6 Indian, 2 Indonesian). 8 departures.
11 October 1999, Ashmore Islands (Unbunmaroo) 111 - 93 adults, 18 minors - plus 1 baby*, (101 Iraqi, 9 Afghan). 7 detention, 96 TPV, 9 refugee status.
22 October 1999, Ashmore Islands (Xarag) 3 adults (2 Sri Lankan, 1 Pakistani). 2 departures, 1 detention 22 October 1999, Ashmore Islands (Yule) 142 - 136 adults, 4 minors (126 Afghan, 14 Iraqi). 7 detention, 135 TPV.
1 November 1999, Ashmore Islands (Adelong) 354 - 324 adults, 29 minors - plus 2 babies* (299 Iraqi, 46 Afghan, 4 Iranian, 2 Algerian, 1 Palestinian, 1 stateless). 41 detention, 303 TPV, 11 refugee status.
5 November 1999, Ashmore Islands (Bogabilla) 76 - 68 adults, 7 children (63 Afghan, 12 Iraqi). 10 detention, 65 TPV, 1 departure.
7 November 1999, Ashmore Islands (Cootamundra) 82 adults (80 Iraqi, 1 Palestinian, 1 Kuwaiti). 12 detention, 70 TPV.
8 November 1999, Ashmore Islands (Dapto) 25 - 23 adults, 2 children (Afghan). 25 TPV.
11 November 1999, Ashmore Islands (Finley) 23 adults, 1 unknown (Afghan). 23 TPV. 17 November 1999, Ashmore Islands (Goodoonga) 31 - 24 adults, 7 children (27 Afghan, 4 Iraqi). 31 TPV.
18 November 1999,Ashmore Island (Henty) 33 - 30 adults, 3 children (17 Afghan, 15 Iraqi, 1 Iranian). 2 detention, 31 TPV.
19 November 1999, Ashmore Islands (Jerilderie) 23 - 21 adults, 2 children (Afghan). 23 TPV.
19 November 1999, Ashmore Islands (Kyogle) 24 - 19 adults, 5 children (Afghan). 23 TPV, 1 detention.
26 November 1999, Ashmore Islands (Lockhart) 153 - 127 adults, 24 children (132 Afghan, 18 Iraqi, 1 Iranian). 12 detention, 1 departure, 140 TPV.
1 December 1999, Ashmore Islands (Orange) 6 adults (Indian). 6 departures.
6 December 1999, Ashmore Islands (Pokataroo) 135 - 114 adults, 21 children (Iraqi). 20 detention, 114 TPV, 1 departure.
8 December 1999, Ashmore Islands (Quirindi) 7 adults (Afghan). 7 TPV.
16 December 1999, Ashmore Islands (Rappville) 127 - 118 adults, 9 children (104 Afghan, 22 Iraqi, 1 Pakistani). 19 detention, 108 TPV.
18 December 1999, Ashmore Islands (Tumbarumba) 53 - 33 adults, 19 children - plus 1 baby* (51 Iraqi, 2 Algerian). 12 detention, 41 TPV.
21 December 1999, Ashmore Islands (Warrawee) 35 - 20 adults, 15 children (Iraqi). 16 detention, 19 TPV.
2000: Ashmore Islands boat arrivals
5 January 2000, Ashmore Islands (Yanco) 118 - 104 adults, 15 children. 29 detention, 88 TPV, 1 departure.
11 February 2000, Ashmore Islands (Eneabba) 48 - 42 adults, 6 children - plus 1 baby.* 8 detention, 40 TPV.
16 February 2000, Ashmore Islands (Gnowangerup) 14 adults. 1 detention, 13 TPV.
1 March 2000, Ashmore Islands (Hovea) 71 - 51 adults, 20 children, plus 2 babies*. 26 detention, 47 TPV.
6 March 2000, Ashmore Islands (Iluka) 21 adults. 1 detention, 11 TPV, 9 departures. 511
19 March 2000, Ashmore Islands (Joondalup) 47 - 31 adults, 16 children. 6 detention, 41 TPV.
26 March 2000, Ashmore Islands (Leederville) 70 - 60 adults, 10 children. 38 detention, 32 TPV.
28 March 2000, Ashmore Islands (Manjimup) 19 adults. 1 detention, 18 TPV.
3 April 2000, Ashmore Islands (Nannup) 62 - 46 adults, 16 children, plus 1 baby*. 26 detention, 2 bridging visas, 35 TPV.
24 April 2000, Ashmore Islands (Ongerup) 4 adults. 4 detention. 26 April 2000, Ashmore Islands (Pingelly) 78 - 72 adults, 3 children. 18 detention, 60 TPV.
9 May 2000, Ashmore Islands (Quinninup) 66 - 52 adults, 14 children, plus 1 baby*. 8 detention, 1 refugee status, 58 TPV.
16 May 2000, Ashmore Islands (Rockingham) 17 - 15 adults, 2 children. 17 TPV.
1 June 2000, Ashmore Islands (Stonyville) 36 - 32 adults, 4 children. 14 detention, 22 TPV.
19 June 2000, Ashmore Islands (Tambellup) 112 - 84 adults, 28 children. 39 detention, 73 TPV.
27 June 2000, Ashmore Islands (Utakarra) 3 adults. 3 detention.
10 July 2000, Ashmore Islands (Varley) 30 - 30 adults 19 detention, 11 TPV.
11 July 2000, Ashmore Islands (Wagerup) 36 - 33 adults, 3 children. 24 detention, 11 TPV, 1 unknown.
17 August 2000, Ashmore Reef (Yakamia) 74 - 54 Adults, 20 Children. 69 detention, 5 departures.
4 September 2000, Ashmore Reef (Zanthus) 77 - 69 adults, 8 children. 48 detention, 27 TPV, 2 departures.
24 September 2000, Ashmore Islands (Bedourie) 2 adults. 2 detention.
27 September 2000, Ashmore Reef (Charleville) 47 - 37 adults, 10 children. 44 detention, 3 TPV.
2 October 2000, Ashmore Reef (Dirranbandi) 14 - 10 adults, 4 children. 14 detention.
7 October 2000, Ashmore Reef (Emerald) 93 - 83 adults, 10 children. 84 detention, 3 TPV, 6 unknown.
15 October 2000, Ashmore Islands (Fruitgrove) 33 - 28 adults, 5 children. 28 detention, 5 TPV.
25 October 2000, Ashmore Islands (Gargett) 32 - 25 adults, 7 children.
28 October 2000, Ashmore Islands (Helidon) 116 - 98 adults, 18 children.
2 November 2000, Ashmore Islands (Innisfail) 69 - 62 adults, 7 children, 69 detention.
10 November 2000, Ashmore Islands (Jondaryan) 24 - 24 detention.
16 November 2000, Ashmore Islands (Kilkivan) 48 - 48 detention.
27 November 2000, Ashmore Islands, (Leichardt) 100 - 100 detention.
16 December 2000, Ashmore Islands, (Maroochydore) 117 - 84 adults, 33 children. 117 detention.
17 December 2000, Ashmore Islands (Ormeau) 92 - 72 adults, 20 children. 92 detention.
18 December 2000, Ashmore Islands, (Proserpine) 35 adults. 35 detention.
8 December 2000, Ashmore Islands, (Quinalow) 97 - 78 adults, 19 children. 97 detention.
21 December 2000, Ashmore Islands, (Rosalie) 32 - 30 adults, 2 children. 32 detention.
21 December 2000, Ashmore Islands, (Sapphire) 30 - 26 adults, 4 children. 30 detention.
21 December 2000, Ashmore Island, (Toowoomba) 43 - 36 adults, 7 children. 43 detention.
27 December 2000, Ashmore Islands, (Urangan) 49 - 38 adults, 11 children. 49 detention.
30 December 2000, Ashmore Islands, (Virginia) 177 - 108 adults, 69 children. 177 detention.
31 December 2000, Ashmore Islands, (Wallangarra) 68 adults. 68 detention.
Notes relating to homeland instability:
IRAQ: On 31 August 1996, the Iraqi military launched its biggest offensive since 1991 against the city of Erbil ... This attack stoked American fears and placed Iraqi president Saddam Hussein in clear violation of United Nations Security Council Resolution 688 forbidding repression of Iraq's ethnic minorities. The 1996 cruise missile strikes on Iraq, codenamed Operation Desert Strike, were joint United States Navy–United States Air Force strikes conducted on 3 September against air defense targets in southern Iraq, in response to an Iraqi offensive in the Kurdish Civil War.
SRI LANKA: First Battle of Mullaitivu and codenamed Operation Unceasing Waves was a battle between the militantLiberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) and the Sri Lankan military during the Sri Lankan Civil War for control of the military base in Mullaitivu in north-eastern Sri Lanka (Wikipedia). In early August 1996, Tamil civilians, particularly internally displaced persons (IDPs), began fleeing Mannar Island and other areas in Eastern and Northern Sri Lanka (refworld, UNHCR).
AFGHANISTAN: In 1994 a group of former fighters, associated with a madrasah in a village of Kandahār province, successfully subdued a local warlord and began pacifying nearby areas. The faction, which enjoyed popular support with its promise of security and its religious fervour, quickly grew into the movement now known as the Taliban. By late 1996 the Taliban had seized the capital, Kabul, and gained effective control over some two-thirds of the country.
References -
Available on request