Australian authorities should have done more to help a group of asylum seekers before their boat crashed into rocks off Christmas Island, the lawyer bringing a case against the federal government says.
Human rights lawyer George Newhouse is representing a number of survivors and the relatives of those who died in the SIEV 221 disaster in December 2010.
They are suing the Commonwealth for breaching its duty of care over the tragedy that killed 50 people.
Mr Newhouse says the Commonwealth was responsible for the vessel as its legal owner, failed to maintain a proper lookout, and failed to maintain the rescue service on Christmas Island that could have saved lives.
Mr Newhouse said under the Migration Act the Australian government becomes the legal owner of a SIEV when it comes within 12 nautical miles of the Australian mainland.
"We believe that the evidence will show that the Commonwealth knew, or should have known, that there were vulnerable men, women and children that were on the high seas in a storm and took insufficient steps to look out for them," Mr Newhouse said in a statement.
When they found out SIEV 221 was foundering the Commonwealth did not have the systems in place or operational life-saving vessels to rescue them, he says.
The government knew of the need for a rescue service on Christmas Island but let it lapse into a state of disrepair so that not a single rescue vessel could be launched.
After an eight-month hearing coroner Alastair Hope laid the blame for the tragedy firmly on the people smugglers, but did criticise Commonwealth authorities for the lack of adequate rescue vessels on the island.
Immigration Minister Scott Morrison hit out at the lawsuit.
"This is like someone who is saved from the fire suing the fireman," Mr Morrison told reporters in Canberra.
"This is really a very shameful and offensive claim to be bringing."
He once again praised authorities and Christmas Island locals who went to the aid of the 89 Iranian and Iraqi asylum seekers and three crew on board SIEV 221.
The customs and border protection officials and navy personnel showed a rare level of bravery, while the response of locals was "extraordinary", he said.
Labor's Brendan O'Connor, who was home affairs minister at the time of the shipwreck, said many brave deeds were done to rescue the asylum seekers.
"Unfortunately, people died but many more would have died without the good work of the naval and customs personnel," he told reporters.
The Australian Greens also praised the efforts of rescuers but called for an independent review of search and rescue protocols.
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