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AUSTRALIAN MARITIME LAW UPDATE 2011
Michael White* and Lauren Humphrey**
This update on maritime law events during 2011 addresses the events relating to maritime law that have
occurred in the Australian region in 2011, but it also takes into account some developments in 2012.
It commences with developments about the ever-present interest in asylum-seekers and other peoples who arrive
by boat from overseas without prior authorisation, generally referred to as ‘boat people’. It then goes on to deal
with the inauguration of the many aspects of shipping reform and the laws that are changing as a result,
followed by notes on marine pollution spills, regional maritime casualties and a short comment on the
continuing voyage of the annual Japanese whaling fleet to take whales in the Southern Ocean. The significant
number of maritime cases decided in 2011 is summarised. This 2011 update finishes with notes on the new
legislation and piracy patrols off Africa by Australian naval ships.
Regular readers of the annual updates may note that this update is not also printed in the Journal of Maritime
Law and Commerce, as has been the case for Australian updates since 1998, and is written for the Australia n
and New Zealand Maritime Law Journal alone.
2 Boat People
The number of boat people is still only a small proportion of the illegal entrants to Australia, but the media and
the politicians give it prominence, and hence it has a high profile. For 2011 the total number who arrived was
4,522, of which some 40% arrived in the last two months of the year; in other words, after the Plaintiff
M70/2011v Case judgment, discussed below, was handed down.
To help deal with the fact that most of the boats set out for Australia from Indonesia, the Australian Federal
Government presented three new high-speed patrol boats to the Indonesian National Police (INP) in 2010,
enhancing the region’s joint capability against people smuggling. The boats were provided through a $7.1
million grant to the Australian Federal Police (AFP) in July 2010, part of a new policy step of improving
regional law enforcement capability.2
The High Court in Plaintiff M70/2011 v Minister for Immigration & Citizenship held by a majority on 31
August 2011 that the Act supporting the arrangement with Malaysia for boat people to be transferred there and
4,000 genuine refuges to come to Australia in lieu of these boat people was invalid. The Act was struck down as
beyond Commonwealth power.3 The hope of the Commonwealth government that this arrangement to send the
boat people direct to Malaysia would deter boat people was, therefore, lost. This case is discussed in some detail
2.1 SIEV221 Tragedy at Christmas Island 15 December 2010
Many of the boat people arrive at Christmas Island, an Australian offshore territory in the Indian Ocean. This
was the scene of the tragedy on 15 December 2010, when some 50 people were drowned when the Suspected
Illegal Entry Vessel (SIEV 221) lost power only a few miles from the only port, Flying Fish Cove. This incident
was reported last year in the Australian update 2010.
The authoritative Coroner’s Report, after an inquiry held over some months in 2011, was delivered on 23
February 2012.4 There were 89 passengers, from Iran and Iraq, and three crewmembers. Of this total, some 50
people were drowned; the largest loss of life in a maritime incident in Australian territorial waters during peace
* QC, BCom LLB PhD (Law); Adjunct Professor, University of Queensland.
** BEcon LLB (Hons), University of Queensland.
1 Vasek, L, ‘Parties Slug it Out as Year’s Asylum Tally Nears 1000’, The Australian, 22 February 2011, 6.
2 ‘Border Protection’, (1 February 2012) 209 Australian Mar itime Digest, 3.
3  HCA 32. The main order of the Court was: ‘Declare that the declaration made by the “Instrument of Declaration of Malaysia as a
Declared Country under subsection 198A(3) of the Migration Act 1958” dated 25 July 2011 was made without power and is invalid.’: ibid,
4 State Coroner A N Hope, Coroner’s Court of Western Australia ‘Record of Investigation into Death’, (23 February 2012),
Australian Update 2011
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time in 115 years.
5 Heavy weather resulted in the huge Indian Ocean swell crashing onto the northwest of the
island, which was wh ere the vessel smashed into the cliffs as it made it way for shelter in Flying Fish cove, on
the other (leeward) side. The RAN patrol boat HMAS P irie and the Customs vessel ACV Triton happened to be
in the area. Their crews performed skilled and dangerous work to rescue 41 persons from drowning and they
were much assisted by citizens of Christmas Island throwing life jackets from the cliffs down to them in the sea
below. The Coroner found that the bravery of those involved in the rescue efforts — navy, customs and local
people — was exceptional; that the officers and crew on the small craft in the rescue demonstrated ‘great
courage and resourcefulness in the circumstances’; and that he had ‘nothing but praise for them’.6 Of the 92
people onboard, five babies and 10 older children were amongst those who died in the tragedy.7
2.2 Change of Government Policy on Visas
In November 2011 the Minister for Immigration, Hon Chris Bowen MP, announced that, as from 24 March
2012, the current process for assessing asylum seekers arriving by boat would be ended, and they would be
merged into the general system of assessment of their claims by the Refugee Review Tribunal. He confirmed
this government policy on 19 March 2012, and confirmed that these people, many of whom having suffered
great hardship to escape their dangers in Sri Lanka, Afghanistan and Iraq, would be awarded a Single Protection
Visa until their claims are assessed and judgment made on them.8
There had been much criticism of the former system. According to one newspaper article, the Federal
Magistrates Court records show that about 24% of the assessments by Immigration officials were legally invalid
due to bias by the assessors, and the Department conceded error in a further percentage.9 Of course, the life of
the immigration officials is not easy. Over the period 1 July 2010-17 October 2011, of 3,237 people who arrived
by boat, approximately 3,200 had admitted to prior arrival in Indonesia with passports or other identification
documents, but then later came into Australian waters with none of them. One inference is that they had,
therefore, deliberately destroyed their identification documents, thereby making accurate identification of their
claims difficult for the officials.10 Another reason may be that those organising such voyages (‘people
smugglers’) provided the passengers with forged travel documents in order to get from the source country to
Indonesia, which documents are then either returned to the organiser or discarded: see, for example, the
evidence to this practice in the trial of The Queen v Randy Ado and Robet Okana in 2011.11
While it hardly involved maritime law, one aspect of this surge in the arrival of boat people and their detention
is Australia is the increase in pay ments to, and prof its by, the company, Serco Australia,12 to which the general
management of the detention centres has been outsourced by Federal government. In the 2010-2011 financial
year Serco admitted a total of 8,874 people into detention, and for this it was paid AU$693 million (up from
$369 million from the previous year) and made a net profit of $59 m (up 45%).13
Another aspect of this issue is that many of the Australian naval vessels are being employed on non-naval tasks
in being ordered to be active in border protection. Apart from the squadron of patrol boats taken up with
fisheries and illegal entrants by boat, the RAN survey vessels HMAS Leeuwin and HMAS Melville, based on
the Australian east coast, were taken off their important hydrographic duties to steam to the west coast in order
to transport the numerous newly arrived boat people from various locations in the Indian Ocean to Christmas
2.3 Boat People Smuggler Trial: Ruling on Unlawful Boarding
For some years the trials of the crew of these boats used for people smuggling were being held in the courts in
Western Australia (Perth) and the Northern Territory (Darwin) but the resources of these courts were
overwhelmed by the increasing numbers. At considerable expense, therefore, the accused and witnesses are now
flown to other Australian capital cities for the trials. In one trial, in the District Court in Brisbane in April
5 Ibid, Executive Summary, iii.
6 Ibid, Executive Summary, xv.
7 The Coroner’s list of dead showed 10 children under 10 years and five babies of one year or less: ibid, first four pages, unnumbered.
8 Media Release of 9 March 2012;
9 Needham, K, ‘Boat Refugees will be Assessed as Air Arrivals’, Sydney Morning Herald, 20 March 2012, 6.
10 Maley P, ‘Lost at Sea: 37 of 2337 Boatpeople had Passports’, The Australian, 30 January 2011.
11 Supreme Court of Queensland, Indictment No 31 of 2011, 15 March 2012, 1-37 and 1-40.
12 A division of the British and international company, Serco International, which has many different industries and operates in the UK, Asia
Pacific, Europe, the Middle East, and North America, >.
13 West, M, ‘Boat Surge Leads to Huge Profits’, The Sun-Herald, 6 May 2012, 4.
14 Dodd, M, ‘Navy Survey Ships Being Used as ‘Water Taxis’ for Boatpeople’ The Australian 16 May 2012, 3.