When the sea became a space of detention: Australia’s maritime migration governance 

Guest post by Andonea Dickson. Andonea is a Research Fellow in International Relations at the University of Edinburgh. Her research focuses on migration, bordering, and carcerality and she is currently working on the project “Immigration Detention: Investigating the Expansion and Global Diffusion of a Failed Project”.  

In July this year, a boat carrying 44 Bangladeshi and Rohingya men was intercepted by Australian authorities; all passengers were boarded on an Australian Border Force vessel and detained at sea for 18 days. After this maritime detention, they were put on two aluminum vessels and forcibly returned to Indonesia. This event came just days after a further 28 people seeking asylum were reportedly detained at sea by Australian authorities for 11 days, before being similarly returned to Indonesia. These glimmers into Australia’s otherwise opaque maritime border operation present a worrying trend of detaining people seeking asylum at sea. However, this is not a new development; prolonged periods of maritime detention became an authorised practice ten years prior.  

In July 2014, the Australian Government detained at sea 157 people seeking asylum for one month. In early 2015, a High Court case disputed whether this prolonged period of maritime detention was lawful. The High Court, responsible for clarifying the application of domestic laws and policies, ruled by a majority that under Australian domestic law, this lengthy period of at sea detention was, in fact, legitimate. What this ruling did to expand geographies of immigration detention deserves far greater scrutiny and recognition than it has yet received. 

The case  

The original event of detention at sea was enshrouded in secrecy, as is typical of Australia’s maritime border. While the media revealed that there was a boat in distress near Christmas Island, the government initially refused to acknowledge its existence, or subsequently share any information on the identities of those rescued, where they were being held or what their intended destination was. We now know that 157 Tamils fleeing persecution from the Sri Lankan authorities had been rescued near Christmas Island and boarded onto an Australian Customs vessel. The Australian Government attempted to return them to India, a country through which they had transited. After negotiations with India failed and more than ten days passed stationed off the Indian coast, the Customs vessel made the lengthy journey back to Australian waters. Following a month of maritime detention, the people seeking asylum were eventually removed to Australia’s offshore detention centre in Nauru.  

While at sea, the people seeking asylum were detained below deck in cells without windows for 22 hours each day. They were separated by gender, which resulted in families being confined in different cells. And there were no questions asked about why they had fled Sri Lanka or the potential risks faced if returned. The detention posed no purpose in processing asylum claims, but rather existed solely to facilitate their removal to an overseas territory.  

Why is this case so significant? 

The case orientated around Australia’s Maritime Powers Act and how it should be applied. Section 72(4) of this Act indicates that a maritime officer can detain a person at sea and take them to a place outside Australia. In disputing the specifics of this clause, there were several significant conclusions made by the presiding judges which greatly impact what is deemed acceptable in the governance of people seeking asylum at sea.  

In the ruling, it was concluded that there was no need for the “place” of disembarkation to be proximate or somewhere the detained person has any pre-existing connection. While there is some lack of clarity in international law on where people rescued at sea should be disembarked, there is an overall understanding - highlighted by UNHCR - that the point of disembarkation be chosen in a way which guarantees the “safety and dignity of those rescued and of the crew”. Disembarking people rescued at sea should thus be done in a time sensitive way and to a place where they do not face persecution. In emphasising that Australian authorities can disembark people in distant geographies, the judges undermined such obligations.  

It was furthermore articulated that the destination someone being detained at sea is taken to must remain flexible and need not be a territory where the Australian Government has a prearranged agreement to disembark people seeking asylum. This has the potential, as was demonstrated in this case, to problematically prolong journeys, as places for disembarkation are disputed and altered. In clarifying the Maritime Powers Act and ensuring the idea of “place” remain distant and variable, the judges gave precedence to being able to remove people seeking asylum to any overseas territory rather than ensuring their rights against arbitrary maritime detention. It was, in fact, rather paradoxically articulated that while indefinite detention at sea was not necessarily sanctioned, any constraint on the time allowed to detain and remove someone via the sea would restrict the operational flexibility of the Maritime Powers Act.   

Significantly, the judges did not engage in any meaningful way with international refugee law, including whether or not people can be removed to a territory where they face onward refoulement, in other words, return to a place they are fleeing. The conclusion by the court thus firmly established Australia’s seascape as a geography with reduced rights and which facilitates the carceral transportation of people seeking asylum.  

The sea and the nature of maritime travel was interestingly entangled in justifying periods of detention at sea. While J Keane emphasised prolonged detention was hardly surprising given the “unpredictability of the circumstances of such voyages”, J Crennan drew to the fore “the unique aspects of the maritime …with quickly changing circumstances and often difficult and dangerous situations”. Neither of these statements were relevant to the incident in dispute, as there had been no unforeseen maritime event which prolonged the journey or the detention. These statements nonetheless implicate the unruly nature of a capricious maritime geography as legitimating endless detention. 

Where does this leave us?  

The case ruled that so long as people were being taken somewhere (where did not matter) they could be detained at sea for any period of time. This ruling has a profound impact on what we accept as lawful practice at sea. It not only sanctions taking people to myriad geographies, including territories where refoulement is a possibility, it also sanctions a maritime detention that is indefinite in nature in order to realise such journeys. 

Attempting to discern where Australia’s detention landscape begins and ends has, for some time, been a complicated task. Unconfined to domestic territories, Australian detention centres are recursively emptied and repopulated in far flung islands of the Pacific, while Australian funding has contributed to the use of detention in neighbouring states such as Indonesia. It is apparent through this case that Australia’s detention network is furthermore not constricted to grounded geographies. Detention as a method to contain people seeking asylum has come to work across land and sea geographies. We need to take seriously the sea as an extension of the immigration detention network, both for the explicit forms of detention we witness, or rather fail to witness in this geography, as well as the forms of expulsion that maritime detention facilitates. As Australia seems to be setting the international standard on cruel and inhumane practices of migration governance, this case and its ongoing effects on people seeking asylum via maritime routes has profound significance.  

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