Tony 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 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