No peal of Christmas Bells; Christmas Appeal decision about events at Christmas Island during Christmas 2010; The SIEV 221 Tragedy

The SIEV 221 Tragedy

Exactly 8 years and 3 days ago, 48 Iraqi and Iranian asylum seekers drowned, including 15 children, when their vessel, SIEV 221, a “very basic vessel”, crashed into cliffs at Christmas Island during a severe storm. 42 persons were rescued.

The SIEV 221 incident is labelled Australia’s worst peacetime maritime disaster in more than a century.

It did not go without legal and political consequence. In 2012, The Coronial Inquestcriticised the Federal Government for failing to provide rescue vessels on Christmas Island despite the known likelihood of a maritime disaster occurring as unseaworthy asylum seeker boats approached the island.

Further civil proceedings ensued in New South Wales.

Class Action Proceedings against the Commonwealth

A class action was commenced against the Commonwealth of Australia in the Supreme Court of New South Wales for damages arising from alleged negligence. The Plaintiffs’ class comprised survivors, families and onlookers of the SIEV 221 tragedy.   They alleged that the Australian Government did not have adequate search and rescue capabilities nearby at the time and it was responsible for SIEV 221 when it came within 12 nautical miles of Christmas Island.

Trial Decision – New South Wales Supreme Court

In 2017, the Supreme Court of New South Wales (Bellew J) held that the Commonwealth of Australia did not have a duty of care. It had no control over the primitive nature of the vessel or of those controlling it, had no control over the weather, and did not send the boat out to sea, and although there was a risk that any such vessel heading south towards Christmas Island would, if not intercepted, be shipwrecked, the risk was both inherent and obvious.


The Plaintiffs appealed to the New South Wales Court of Appeal. In its decision, published today, the Court dismissed the appeal (Payne JA, Meagher JA and Simpson AJA agreeing). The decision provides a detailed examination of the law surrounding “novel duties of care”; that is, tortious duties owed outside of well-established duties of care and the test for determining a novel duty of care.

Christmas Background

Christmas Island – Parcels of Miscellaneous Facts

That parcel of land known as Christmas Island is located approximately 2,500 kilometres to the west of the coast of Western Australia, in the Indian Ocean, and 350 kilometres south of Java.

It is a “Territory” under the authority of the Commonwealth of Australia (section 5 of the Christmas Island Act 1958 (Cth)). Subject to limited exceptions, the laws of Western Australia are in force in the Territory of Christmas Island by virtue of s 8A(1) of the Christmas Island Act.

It was named “Christmas Island” on 25 December 1643 by Captain William Mynors, an English sea captain and the master of the Royal Mary.

The Christmas Island Immigration Reception and Processing Centre closed on 30 September 2018 after 10 years of operation.

Christmas Monsoon Season at Christmas Island

Christmas Island experiences a monsoon season at Christmas time, usually between November and February. It is characterised by harsh weather conditions, particularly affecting the north-west area of the island, including large sea swells and gale force winds. Those weather conditions can make navigation for vessels approaching Christmas Island trying.

Government Info


“SIEV” is an acronym for Suspect Irregular Entry Vessels. It is an operational term used by the Australian Defence Force and Australian Coastwatch for maritime vessels which appear to be attempting to reach Australia clandestinely.

The Commonwealth Agency: Border Protection Command

The Border Protection Command (now known as the Maritime Border Command) is the Australian Government agency responsible for civil maritime security operations in Australia’s maritime areas.  Its responsibilities include responding to unauthorised maritime arrivals in Australia’s maritime areas. It is led by a Rear Admiral from the Department of Defence.

The Border Protection Command produces two daily documents to inform officers of the Australian Government of the existence of maritime threats. The first is the Daily Maritime People Smuggling Threat Status. It provides an assessment of the “threat status” about individual vessels departing for Australia. The Second is the SIEV Arrival Threat Matrix. It contains information including the likely departure date, the likely arrival location, the arrival window dates and the likely number of irregular immigrants on board.

Although the Border Protection Command’s vessels and aircraft are available to be called upon to respond to emergencies at sea in accordance with its responsibilities imposed by the International Maritime Organisation Safety of Life at Sea Convention it is not a search and rescue organisation.

The events of the day: December 2010

The judgment gives a blow by blow (almost minute by minute) account of the observations of the SIEV 221 on the morning of 15 December 2010 from the time of its first sighting at 05:40 by a Customs Officer from his balcony at Mango Tree Lodge close to where the tragedy unfolded.

  • 06:11 – SIEV 221 thought to have lost power and may be in distress.
  • 06:15 – SIEV 221 struck by an incoming swell. Its fuel drum is washed overboard.  Its engine fails.

Soon after, the situation changes drastically. The swell is pushing the vessel towards nearby cliffs.

  • 06:28 – SIEV 221 violently pushed and pulled by the swell. Taking on large amounts of water from waves crashing over its sides. Parts of the vessel beginning to break up.
  • 06:35 – SIEV 221 is 100 yards off the northern coastline of Christmas Island. It is foundering but had not yet striking the rocks.

By now, the swell is large, the sea is frantic, the visibility is reduced.

  • 06:40 – SIEV 221 starts to make contact with the rocks at the bottom of the cliff face of the northern coastline.
  • 07:10 – SIEV 221 is 8m from the cliff face. There is a large, 3 to 4m swell, coupled with an intense backwash from the cliff face. The backwash takes the vessel about 5m from the cliffs and spin it around.
  • 07:20 – SIEV 221 continues to be pushed towards the cliff by the swell and is then pulled away by the backwash. A large wave picks up the vessel and dashes it onto the cliff face. After the wave recedes, most of the vessel has broken up.
  • 07:24 – SIEV 221 survivors are disembarked and taken aboard a rescue boat.

Duty of Care

The Court of Appeal held that the alleged duty could not arise under the established categories of duty.  The duty would therefore have to arise as a “novel” duty of care. The primary judge’s application of the salient features test was correct.

Novel duty of care

The following points were made about the Novel Duty of Care.

  • Mere foreseeability of harm does not produce a duty to prevent its occurrence.
  • The recognition of a novel duty of care must follow from an analysis of the parties’ relationship informed by conclusions in earlier cases and authorities.

There were impediments for the recognition of a duty of care in this case:

  1. The likelihood and extent of harms suffered were not said to have been directly increased by any positive act of the Commonwealth.
  2. The interception operation involved choices by the defendant about the exercise, and non-exercise, of statutory and prerogative powers.
  3. Recognition of the duty may promote incoherence with the purpose of the Migration Act.

Salient features test

The salient features test is the relevant test to be applied and was done so correctly.

  • Regarding vulnerability, there was no reliance by the group members on the defendant which would give rise to relevant vulnerability.
  • Regarding control, the degree and nature of control by a public authority over the relevant risk of harm is crucial in determining the existence of an alleged duty of care. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the defendant, and the defendant did not have control in the relevant sense.
  • While the defendant accepted that SIEV 221 was automatically forfeited to the Commonwealth upon entry into Australia, ownership is not synonymous with control and no occupier’s liability arose from the statutory forfeiture of SIEV 221.
  • A public authority that chooses to perform an act authorised, but not required, by statute is generally liable for any negligence in its performance. However, it is not generally liable for the mere choice not to perform such an act. There is no expectation of general reliance, that an entity will properly perform its public or private function.
  • The appellants’ reliance on Robinson v Chief Constable of West Yorkshire Police[2018] UKSC 4 was misplaced, as that case dealt with harms flowing from positive acts by a statutory authority rather than omissions. In this case, nothing Border Protection Command did increased the risk of harm.

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