Illegal fishing detention ships

Yesterday the Federal Government has announced a plan to hold:

[i]llegal fishermen and asylum-seekers intercepted in Australian waters … at sea on an armed, purpose-built prison ship for up to a month at a time under tough new border-security provisions.

Concerned that its patrol vessels, particularly in northern waters, must make long voyages returning to port after intercepting each illegal boat, the Australian Customs Service has advertised for tenders to lease a civilian vessel to act as a floating detention centre for extended periods of time. The ship, which will be leased at a cost of $10million a year, will need to be converted at an additional cost to hold up to 30 detainees.

… The [tender] documents state that the ship must be able to cater for a full crew, 30 government officials and 30 detainees "for a minimum of 30 days".

However, Don Rothwell, Professor of International Law at the ANU has indicated:

“Australia's [planned] actions would not be in conformity with the provisions of the [UN Law of the Sea] convention,” he said.

“Certainly any intention to create a prison ship system as has been proposed, I think would … raise even more concerns.

“The law of the sea does envisage that Australia could cooperate with a country like Indonesia, whose fishermen would presumably be the main target of these arrests.”

While the reporting is not very clear, I presume Professor Rothwell has in mind Article 73(2) of the UN Law of the Sea Convention (UNCLOS), which provides:

Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

Indonesia could certainly raise claims that detention for 30 days at sea is not compatible with “prompt release”, and litigate those claims before the International Tribunal for the Law of the Sea.

Australia has had prompt release proceedings initiated against it in ITLOS in the past over the arrest of vessels suspected of illegal fishing in Australian waters (see the Volga Case).

However, in some ways this policy could represent a human rights improvement in Australian practice. The past policy of detaining Indonesian fisherman in their boats in Darwin harbour resulted in deaths in custody in February 2003 and again in April 2005.

It appears that the Australian Fisheries Management Authority has had difficulty in ensuring persons detained in the these highly exposed conditions have access to prompt medical assistance in case of emergencies.

At least the proposed “prison ship” would have a two-bed sick bay and a surgical theatre and detainees will be able to be properly supervised, as opposed to being visited occasionally by a supply boat dropping off food and water.

Further, Senator Ellison the Customs Minister has said

"We anticipate people will be detained for a very short period of time, we anticipate a matter of days."

If the detainees are rapidly moved to shore, processed and released on bond or bail, then the new system could actually bring Australia closer into line with UNCLOS.