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Abbott pays a heavy price to stop the boats

Tony Kevin |  27 January 2014

Boat symbol with a red line through itTony Abbott has kept his pre-election promise to stop the boats, but at what huge cost! Let me count the ways.

1. Violation of international law and human rights law obligations

International maritime law — It is illegal to stop boats in international waters and then forcibly to transport these boats or their passengers through international waters without their informed consent. It is not unreasonable to define such actions, which violate the right of innocent maritime passage, as piracy or even as people trafficking. Yet Operation Sovereign Borders (OSB) is doing this.

Refugee Conventions — It is illegal under the Refugee Conventions which Australia has signed, forcibly to return to Indonesia passengers in boats that have entered Australian territorial waters, and there requested consideration of their claims to be admitted as refugees under the Conventions. Every forced towback or escort out of Australian waters gravely transgresses our obligations under the Conventions. Yet OSB is doing this.

2. Offending Indonesia

It is diplomatically offensive to our important near neighbour Indonesia either to abandon boatloads of returned asylum seekers at the outer edge of Indonesian territorial waters, or to violate Indonesian sovereignty by trespassing in their territorial waters without prior permission. OSB is doing both these things.

In the latter case, OSB has confounded the offence by an insincere 'apology' that claimed falsely that our Navy ships made 'positional errors' in Indonesia's complex archipelagic waters: a lie so readily refuted by commonsense logic and seamanship as to be grossly insulting to Indonesia.

There was a thorough discussion of the impact of such acts on Australian-Indonesian relations by an Indonesian academic on the ABC 7.30 Report on 22 January. I will return to this point later in this article.

3. Human rights violations

OSB has violated Australia's human rights obligations to asylum seekers in various reported ways: by lying to them and tricking them as to where they were being taken; by various reported acts of abuse and cruelty during interceptions and forced returns; and by leaving them in life-at-risk situations without due care when abandoning them either within or at the outer edge of Indonesian territorial waters.

Again, Immigration Minister Scott Morrison has insulted Indonesia, by claiming that multiple Indonesian police reports of such acts of Australian cruelty are not to be given credence.

The reported decision by Senator Eric Abetz, the Government's leader in the Senate, to grant OSB personnel immunity from prosecution for any acts done in the course of their border protection duties as state agents is offensive and almost certainly illegal. It violates the spirit of accepted international norms governing crimes against humanity. Under Abetz's ruling, the Nuremberg Trials would have been impossible.

4. Adverse impacts on Navy and Customs service morale and professional standards

The Government's general secrecy and arrogance are setting a poor example to our service personnel engaged in OSB duties, and encouraging a general debasement of service standards. The free expression on the internet of Navy prejudice against asylum seeker — one hopes these are isolated views — has already happened.

This is a punitive climate that makes such reported acts of abuse as forcing asylum seekers to hold onto hot engine pipes quite possible. Although we await the results of the Indonesian investigation, Morrison has not categorically denied these claims: he has only said that they are 'unsubstantiated'.

Cost and benefit

To my mind, all of this adds up to a rather heavy bill to pay for the Government's claimed success in deterring boats. Reportedly, it is now weeks since any asylum seekers arrived in Australia. This, of course, takes the pressure of numbers off detention facilities in Christmas Island, Nauru and Manus. Morrison is understandably trumpeting the Government's success in these terms.

Another success — to which I attach the most weight — is that under the Abbott Government there have been no reported deaths at sea involving Australian border protection interception action or failure to act. This is a striking improvement on the high death rate under the Rudd and Gillard governments. By Marg Hutton's authoritative analysis on www.sievx.com, over 1100 people probably died under Labor. This is certainly restraining Labor's criticisms of OSB: both Bill Shorten and Richard Marles have been very circumspect so far.

My explanation for those 'accidental' border violations by OSB ships: I am sure that Morrison has given OSB the strictest riding instructions that there are to be no avoidable deaths of asylum seekers for which Australia might be held to account. If this has required OSB ships deliberately to trespass in Indonesian waters to take boats safely close to shore in Indonesia, and then to lie about it, so be it.

If I am right in this logic, it will happen again.

Risky realities

In summary, the Abbott Government is walking a very fine line — and accruing heavy legal, diplomatic and ethical costs — in implementing its pre-election pledge to turn back the boats. What can go wrong now with this ruthless, fanatical, but successful (in its own terms) policy? I see two main risks.

First, risk of deaths at sea. Any asylum-seeker deaths brought about directly or indirectly by present Australian aggressive towback policies will force Indonesia to take the most forceful action against Australian interests, because Indonesia's international diplomatic standing will then be at stake.

Second, navy-to-navy incidents. Now that Indonesia has ordered its own navy into the territorial waters south of Indonesia to which Australia has been returning asylum seekers, it is not hard to visualise scenarios of ugly navy-to-navy confrontations in those waters.

In either case, damage to Australia-Indonesia relations and to Australia's global standing could be severe.

Tony Kevin headshotTony Kevin was a career foreign service officer for 30 years and a member of the Senior Executive Service of the Australian Public Service from 1986 to 1998.

'No boats' image from Shutterstock



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Submitted comments

All very true but I am sick of the drowning at sea story. 8 million kids under 5 die every day and get no attention but a few refugees murdered by the Australian government are considered to be of the utmost importance, not because they were murdered but because they mostly drowned close to Indonesia or in international waters. Only those on Christmas Island drowned in our waters. And they are not more important than the torture, abuse and refoulement of those who didn't drown.

Marilyn 25 January 2014

What do I tell the kids? Respect our Parliament, our M.P's who are breaking International Laws like it doesn't matter. Sending persecuted people into unsafe and indefinite detention in concentration camps - on island prisons where no protection of Australian law exists - so the recent rapes are a crime to the victim in PNG!!! The police advising one male victim not to report the gang rape because he could go to the prision, consenting homosexuality or not? Thanks for itemising the points - I will use this in my discussion with Labor for Refugees.

Julie 25 January 2014

Do we need to change the words of our national anthem? "For those who’ve come across the seas; We’ve boundless plains to share" For those who've come across the seas - prepare to be turned back,

AURELIUS 26 January 2014

I think an old term, Brinkmanship, comes into play now. Morrisson and co. want to take this to the edge. They possibly hope Indonesia will stop boat departures onshore rather than have naval confrontation.

Harry 28 January 2014

Our Prime Minister has been a tad severe to asylum seekers. Sometimes, at school, children are asked to imagine being PM. This is what I would write if I were PM: Dear Asylum Seekers, Welcome to Australia. Welcome to our street(s), to our society. Notwithstanding my busy schedule - holidays (recuperating from debate), voluntary commitments, sporting pursuits and, not least, spending time with spouse and children, I will commit myself to conversing with you. Our society will welcome your contributions. Sincerely, Pam (Prime Minister of Australia).

Pam 28 January 2014

Brilliant article Tony an erudite and factual assessment of the situation...I just can't comprehend that the wisdom , legality and morality of your words is not the prevailing Australian position. Why is it that an article such as this cannot get traction in the mainstream media ? How is it that the political bottomfeeders have come to prominence at the expense of the country's morality and international obligations ?

John O'Mara 28 January 2014

This one of the best analyses written on this matter … No, wait, it is the best. So good to have it stated clearly: 'positional errors' is “a lie so readily refuted by commonsense logic and seamanship as to be grossly insulting to Indonesia.” And “it is not hard to visualise scenarios of ugly navy-to-navy confrontations …” Thank you, Tony Kevin and Eureka Street. Just one query, however, re “Tony Abbott has kept his pre-election promise to stop the boats.” Are you sure, Tony K? How do you know? If a boat had landed on Melville Island with 100 Sri Lankans last week and the Australian navy had rounded them all up and shipped them back to Indonesian waters and put them in lifeboats within sight of Rote or Sumba, how would we ever know?

Alan Austin 28 January 2014

O.S.B:- " Keep ancient lands, your tired, your poor. Your huddled masses yearning to be free; your persecuted, your unwanted; the wretched refuse of your teeming shore. Keep these: keep the homeless, the tempest-tost. There is no room for them in Our Inn".

Robert Liddy 28 January 2014

Interesting comparing and contrasting your article with those by Fatima Measham in this issue of ES and Peter Van Onselen "Towbacks an abrogation of our responsibilities" in last weekend's Australian. Both share your general view but take a different tack. To quote van Onselen: " Ultimately support or opposition towards this policy comes down to whether you ascribe to a philosophy that ends justify the means: in this case the end is stopping boat arrivals, the means is the very policy the Coalition has adopted, which appears to be doing just that. I do not, because of the precedent it sets for secrecy, the bypassing of domestic laws it requires and the sledgehammer it takes to a problem which could be addressed (albeit not as swiftly) with a rewrite of antiquated international laws." I would recommend that article to anyone interested in this issue. Both Measham and Van Onselen feel that this is an issue which needs to be addressed in the public arena. Van Onselen adds a cautionary note "Opponents should continue to fight the rhetorical fight, by all means. But they shouldn't buy in to every unsubstantiated accusation that surfaces."

Edward F 28 January 2014

To us Australians it seems so natural and reasonable that we should be sitting on the greatest PER-CAPITA. expanse of territory, and natural resources of any country in the world. We just want to enjoy what we have. And we don't want to share it with those in extreme need. It is not just Tony Abbott or Kevin Rudd who say this. They are at the mercy of the majority of Australians who either voice or condone their actions. Other peoples or nations may come to decide that our attitude is neither natural or reasonable when millions lack even the basics of life.

Robert Liddy 28 January 2014

Mandate. This government has a mandate - trotted out here and there. They claim to be doing things in our/my name. How embarrassing when I am lumped in with the 55% who now account for 100% of us. The analysis is excellent and measured. But who reads these columns? More embarrassing is that the current politicians, and those before them, catered for the lowest common denominator, greed and insecurity. All this after a weekend when we are supposed to have been celebratory. Some will celebrate the No Boats meanwhile many genuine displaced and fractured families will be put under more stress. A stress that seems to have no horizon. Then we have the temerity to grant citizenship to the new citizens some of whom will have come here by boat. Great viewing if you are on Manus or Christmas Islands.

Tony London 28 January 2014

Why this wringing of hands about Abbott damaging Navy morale and relations with Indonesia when ABC/Fairfax is doing a far more efficient job, via the spruiking of dubious torture claims, Rudd/SpyGate, etc?

HH 28 January 2014

So 1000 or more refugees have drowned in recent years. Why? Because they were sent out to sea in unseaworthy boats. Why did the owners not make them seaworthy? Maybe because they knew the Australian authorities would destroy them if they arrived safely. So what share of the blame for these deaths belongs to the Australian government? They have given the owners a reason for not making them seaworthy. Not an excuse, because the owners still had a moral obligation to make the boats seaworthy, but a reason. It might be unthinkable to let them have the boats back, but it would surely have reduced the death rate.

Gavan Breen 28 January 2014

Beware, Edward F., of people calling international laws "antiquated international laws". The laws by which Australia abides are binding agreements with other civilised countries. To belittle them with words like "antiquated" is one step to wanting them overturned, thus turning Australia into a arrogant, pariah state.

CLOSE READING 28 January 2014

In my view the best way to stop the cruel trade conducted by those despicable people profiting from human misery is for Australia to open its doors far more widely to genuine refugees in the world's camps. This would be more humane and far more sustainable than turning back leaky, dangerous and overcrowded boats. We claim we have so much to share. Let's do it! As for the Indonesian Government it continues to behave in its usual duplicitous and hypocritical manner. Whatever we do that relationship will never be something we can rely upon so let's stop fretting over it.

Martin Loney 28 January 2014

Thank you Kevin. Why doesn't Tony realise we need to foster good relationships in peaceful times and then share prosperity in our part of the world? Defence budget is now where our $$ are going.. what a priority! Defence is strengthened more by diplomacy. We have so many opportunities for cultural exchange, business naturally will benefit..Fellow Liberal Malcolm Fraser showed his Christian faith in humanity, insight and true leadership, taking Vietnamese refugees by plane and sinking boats ...A man of REAL COURAGE .. BUT it seems Tony is happy to give away our wealth as foreign investors buying valuable real estate and companies are eagerly invited in!!I Fear of invasion?? while we we can not continue waste $$$ on years of detention.This violation of international law acting as though we are being attacked by asylum seekers makes us the pariah state, no excuses.

Catherine 28 January 2014

"Forcing Asylum seekers to hold onto hot engine pipes quite possible" What actually happened they were trying to disable the engine. Not surprisingly, left wing groups are clamouring for an inquiry together with the people-smugglers. Trying to rubbish the Royal Australian Navy is too much. I can't take it anymore.

Ron Cini 28 January 2014

Obviously you have not read the Van Onselen article I referred to Close Reading. Otherwise you would not make your comments. Informed discussion requires you to be aware of the other person(s) point(s) of view.

Edward F 28 January 2014

And still we have the whinge about smugglers, there are no smugglers doing anything, refugees are by law and right allowed to flee danger and no-one has to lure them anywhere.

Marilyn 28 January 2014

Very interesting! Indonesia is treating people smuggling as a crime and just yesterday a people smuggler was sent to a lengthy prison sentence. I fail to understand that the main promoters of this deadly trade still live the high life in Australia at taxpayers expense. I mean the main promoters of people smuggling, Kevin Rudd and his mentor Bob Brown. If over 1000 people died because of their open door policy, then they should face justice in Australia or in Indonesia. We should all be grateful to our Government for helping to stop the deadly trade. Like slavery, the people smuggling industry is a crime against humanity.

Beat Odermatt 29 January 2014

Beat no matter how much you claim there are smugglers it does not mean they are. We forced Indonesia to make laws that contravene a large number of human right treaties, they do so at the expense of refugees who merely help other refugees.

Marilyn 30 January 2014

This morning I heard an interview (ABC RN) with a number of people who provided accommodation in often remote area for asylum seekers. They heard via the media (not even a phone call) that the facilities were no longer needed; no compensation, no help offered. I am so glad that I am now so old I can't do much actively except wish I wasn't an Australian

Rosemary 31 January 2014

Ok Kevin, you have outlined how the Australian Federal Government is in breach of it's international legal obligations. But what can we do to enforce International Law against the Australian Government. I think the only way we will ever stop these cruel and inhumane actions and policies is to drag a government minister or prime minister to the Hague and put on trial for crimes against humanity. Perhaps a tall order, but something has to be done to stop them from using refugees and asylum seekers as whipping boys. Enough is enough!

Euan Thomas 31 January 2014

A third risk of this policy is the risk to our commitment to the rule of law. If our government can bypass domestic and international law whenever it suits them, why should future governments be any different? How can we rely on the laws that give us protection when these laws can be sacrificed in the interests of politics? It's not 'only' asylum seekers that are at risk here - we're all in trouble!

Joan Seymour 01 February 2014

stopping the boats is a responsible action to stop people smugglers and have an orderly refugee intake

bernie tresston 01 February 2014

Precisely Joan, Remember the conversation between Roper and More in 'A Man for All Seasons'? Roper: So, now you give the Devil the benefit of law! More: Yes! What would you do? Cut a great road through the law to get after the Devil? Roper: Yes, I'd cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Ginger Meggs 02 February 2014

Bernie there is no such thing on the planet as the orderly movement of people fleeing wars.

Marilyn 02 February 2014

Looks like they would rather apologise after the event (if they have to) than ask permission before.

Brett 04 February 2014

It is not illegal to stop boats in international waters and turn them around if the boats are clearly set on breaking the laws of the destination country. The UNHCR charter only deals with refugees in one's territory, it says nothing about international waters. The turn arounds are entirely legal.

jeff hosking 07 February 2014

He has shamed his religion and education.

Lee Wilmott 15 February 2014

Three weeks after it was written, this analysis remains current and undisputed. Many of its points were confirmed by Professors Letts, Penny Mathew, Don Rothwell and Clive Williams of the School of Public and Military Law. at an ANU expert public seminar on Thursday 13 February. I was unable to attend unfortunately. Interestingly, no audio record of that seminar has been released either by ANU Public Affairs or the ABC. this leads me to suspect censorship. There is always a full audio record made of such major public meetings on issues of current interest at ANU. It should now be released.

Tony kevin 17 February 2014

Tony, Correction to my last letter here. I have now been advised that all four written papers will be uploaded soon to the ANU Law Centre website http://law.anu.edu.au/cmsl . The discussion closely followed those texts. I am pleased at this outcome.

tony kevin 17 February 2014

A third consequence a death in detention at the hands of the prison guards and no transparent inquiry - how can we believe anything this government tells us when they have a policy of secrecy.

Christine 23 February 2014

Sadly, Tony, I think you repeatedly come to the wrong conclusions because you have a chorus of like-minded idealists agreeing with your every word. You all need to get out and about a bit. Ugly and revolting as all border control may seem to you all (and noting that 100 million people would move here in a wink, given the opporunity), stopping the boats is good policy. Why? No government will retain power in Australia if it employs lax border policy. All the ignorami who spout the rubbish about people arriving by plane obviously have no idea about visa and passport requirements for arriving in Australia. High standards of moral, ethical and economic behaviour can only arise with rules, discernment and control. They underpin civilisation. Your automatic hatred of anything from Abbott's side blinds you to the fact that many decent, pragmatic and moderate people in the real world want the boats stopped. We don't want people smugglers successfully convincing the ignorant,destitute and desperate into willfully embarking on life-threatening voyages. A policy which successfully prevents that decision will inevitably have a harsh zone, because "no" is always ugly when "yes" is the only answer someone can accept.

Analyst 27 March 2014

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