YLS Sale Symposium: ‘Stopping the Boats’–Australia’s Appalling Example to the World

[Paul Power is Chief Executive Officer of the Refugee Council of Australia and a member of the Steering Committee of the Asia Pacific Refugee Rights Network.]

In January 2014, a ranger in West Java reported to the Indonesian navy that a mysterious orange vessel had landed on a remote coral reef and about 60 people had disembarked and disappeared. The naval official who investigated first feared that the vessel may hold explosives but instead discovered that the main contents of this fully-enclosed and unsinkable lifeboat were discarded water bottles and food wrappings sourced from Malaysia. The Indonesian authorities worked out that the people who had arrived on the lifeboat were asylum seekers who had been forced on to it by Australian naval and customs officers after the boat they were on began to sink while being intercepted close to Christmas Island.

This incident was reported in the Australian media on February 1 and, in the weeks following, the Australian public learned that their government had purchased 12 of these lifeboats at a total cost of A$2.5 million (US$2.25 million). Since then, another two lifeboats have ended up in Indonesia and at least four seaworthy asylum seeker boats have been returned to Indonesia. The Australian Government is revealing little – refusing to answer many media questions about “operational matters” – but is proudly proclaiming that there have been no successful people smuggling ventures to Australia since 17 December 2013.

Tony Abbott’s conservative Liberal-National Coalition was elected in September 2013 promising to “stop the boats” of asylum seekers (people the Coalition refers to as “illegal maritime arrivals”) entering Australian waters from South and South-East Asia. For five years in opposition, the Coalition had campaigned ceaselessly against the Labor Government’s changes to policies John Howard’s Coalition Government (1996-2007) had introduced to stop asylum seekers on boats. Labor’s decision to end Temporary Protection Visas for asylum seekers who arrived by boat and to close the detention centre on Nauru which was central to the “Pacific Solution” had resulted, the Coalition argued, in 50,000 asylum seekers in five years entering Australia by sea without permission.

Following failed attempts to send asylum seekers to East Timor and Malaysia, in 2012 the Labor Government responded to political pressure from the Coalition and reintroduced the Pacific Solution detention arrangements in Nauru and Papua New Guinea (PNG). Not only did this fail to be the “circuit breaker” Labor wanted, asylum seeker arrivals increased to record levels (25,173 In the year to 30 June 2013), exceeding the capacity of the detention centres in Nauru, PNG and Australia. Processing of asylum claims was slowed considerably, hundreds of Sri Lankan boat arrivals were returned without a refugee status determination process and work rights were removed for asylum seekers released from detention from November 2012 while Labor searched for an even more punitive approach. On 19 July 2013, Labor’s newly reinstalled Prime Minister Kevin Rudd signed a “Regional Resettlement Arrangement” with PNG which would see all future boat arrivals sent there never to be allowed entry to Australia. In August, a similar arrangement was signed with Nauru.

The Coalition argued that these measures were not tough enough to secure Australia’s borders, promising a military style operation, headed by a three-star general, which would include turning back boats when safe to do so. Boat arrivals already in Australia would lose access to government-funded legal aid, be offered only temporary protection if found to be refugees and have no future access to family reunion.

Operation Sovereign Borders commenced when the Coalition Government was sworn in with most of its work hidden from public view. It allocated A$67 million to increased efforts to disrupt people smuggling activities with funds going to authorities in Indonesia, Malaysia and Sri Lanka. Media reports suggest that, in the first two months, these activities prevented 1151 asylum seekers from travelling to Australia. In October and early November, Australia turned back two boats with the involvement of Indonesia but a third boat turnback was aborted when word leaked out about it and Indonesia withdrew.

In mid November, the Indonesia-Australia relationship fell apart when material published by Edward Snowden revealed that in 2009 Australia had been listening in to the mobile phone conversations of the Indonesian President and his wife. Indonesia was deeply unhappy with Australia’s response to these revelations and declared that it would no longer cooperate with Australia on people smuggling matters.

Australia has clearly gone it alone since then and appears to have forced back seven boats since mid December, including boats which appear to have reached Australian territory. In mid January, the Australian Government admitted that its navy and customs boats had inadvertently entered Indonesian territorial waters on six occasions and apologised to Indonesia. It appears that these breaches occurred while boats of asylum seekers were being forced back.

Australia’s response to asylum seekers travelling directly from Sri Lanka is even more troubling, given that Australia is working actively with the government from which people are fleeing. UNHCR described Australia’s policy of excluding many Sri Lankans from access to the refugee determination process after a cursory initial interview and then returning them as “unfair and unreliable”. We at the Refugee Council of Australia have raised concerns about the possibility that Tamil asylum seekers have been refouled and expressed opposition to Australia’s decision to donate patrol boats to Sri Lanka and ignore the country’s human rights record.

While Australia’s interception activities breach standards in international law, domestic legal remedies are limited. Australia does not have a bill of rights in its constitution or in national legislation and rights under international law do not automatically become incorporated into Australian law. In 2001, the Federal Court confirmed the Australian Government’s power to exclude and expel non-citizens and to detain them for that purpose. In 2011, the High Court ruled that the Australian Government could not proceed with its plan to send asylum seekers to Malaysia because Section 198A of the Migration Act required it to ensure that adequate legal protections were in place. While the arrangement with Malaysia did not proceed, Section 198A was amended in 2012.

In a political environment in which both major political parties share similar views about the expulsion of boat arrivals, political advocacy is very difficult. However, a significant minority of Australians are becoming more and more vocal in their opposition to policies which they see causing harm to people seeking asylum. The greatest threat to the Government’s policies is likely to come from longer term public reaction to their unsustainability – the chaos which develops as a result of widespread long-term detention; the impracticality of refugees being settled sustainably in PNG, Nauru or even Cambodia (last week’s new thought bubble); and the damage caused diplomatically by Australia’s outrageous behaviour. As I endlessly repeat, the current issues facing Australia will not disappear until governments in Asia-Pacific begin to realise that collectively they have much more to gain by working together on a regional approach to refugee protection than by trying unilaterally to turn their backs on those in need.