Foreign fishers

The Australian Lawyers Alliance remains concerned about the treatment of people who are charged with foreign fishing offences in Australia.

Since 1988, hundreds of boats supporting thousands of Indonesian fishermen who venture near or into the Australian Exclusive Economic Zone, have been ‘apprehended’ and burned. The individual crew are thrown into immigration detention, sometimes suffering lengthy delays until trial, where they are represented by Legal Aid against the Commonwealth Department of Public Prosecutions.

After legal proceedings, even when they have been found to be innocent under Australian law, some fishermen have been deported back to Denpasar in Bali, and left to scrounge their way back to their home villages sometimes more than 1,000 kilometres away on far flung islands.

Boats are sometimes owned outright, but are more often subject to loans, or are the direct asset of another person in the village. The boats’ destruction becomes an economic milestone around the fishermen’s necks; a debt that they cannot repay.

Some have paid the ultimate price. In 2003, 21-year-old fisherman, Mansur La Ibu, died in detention, on board his own boat tied to wharves in Darwin Harbour. He had been held without trial for one month. Two years later, 37-year-old Mohammed Heri, also died aboard his own boat in Darwin Harbour.

Until 2005, detained fishermen were treated by the Australian government as being too primitive to require detention on land, with access to bathrooms, steady ground, shelter and away from tropical mosquitoes. Instead, politicians commented that they would ‘be more comfortable’ on board their own boats.

Australian maritime policy is, in this way, aggravating poverty in Indonesia. In some cases, Indonesian fishermen whose boats have been burned and livelihoods destroyed, have turned to people smuggling as a way to make an income: including Muslimin, a man acquitted of unlawful fishing by the High Court of Australia.

Questions continue to linger over the justice of Australia’s maritime boundaries. With one of the largest exclusive economic zones in the world, stretching 200 nautical miles from the coastline, Indonesian fishermen have been dispossessed of waters they have traditionally fished for centuries. This has been called mare nullius, the terra nullius of the sea.

On 19 March 2014, a decision was handed down by Mansfield J in the Federal Court of Australia, which recognised for the first time, that Indonesian fishermen whose boats, seized in Indonesian waters, had been destroyed by the Australian government without compensation, were eligible to seek compensation in particular circumstances.

The case, Sahring & Ors v Commonwealth of Australia & Anor [2014] NTD 9/2011 acknowledged that the Royal Australian Navy patrol vessel HMAS Broome apprehended the plaintiff’s boat, while it was in Indonesia's exclusive economic zone, before burning it at sea.

This case demonstrates a clear example of the Australian navy breaching Indonesian waters and overreaching in the enforcement of Australia’s rights.

While the Defence and Customs Review found that the Royal Australian Navy and the Department of Customs and Border Protection Services breached Indonesian waters six times in December 2013 and January 2014, we believe that this figure could be much higher.

The case of Sahring demonstrates that breaches into Indonesian waters did occur in the aggressive policing of 'foreign fishers', who were in reality, fishing in Indonesian waters.

Indonesian fishermen in the closest Indonesian province to Australia, East Nusa Tenggara, also continue to claim that their fishing grounds have been devastated following the Montara oil spill, which occurred in Australian waters of the Timor Sea in 2009.

Submission To Date Jurisdiction
Where waters meet: The breach of Indonesian waters and the need for a review of Australia's aggressive maritime policy

Senate Foreign Affairs, Defence and Trade Committee,
Inquiry into the breach of Indonesian waters

20 March 2014 Cth

Fishing communities and maritime powers, where poverty meets policy: Maritime Powers Bill 2012 (Cth)

Senate Legal and Constitutional Affairs Committee 31 August 2012 Cth

See also relevant submissions:

Australia's overseas development program and the Montara oil spill, Environmental degradation in East Nusa Tenggara, Indonesia

(Re: impact on local fishing industry)

Senate Foreign Affairs, Defence and Trade Committee,
Inquiry into Australia's overseas development assistance program

3 February 2014