For a few weeks in 2001 during the high-intensity Operation Relex period, Navy border protection vessel commanders were under standing orders from the Howard Government to attempt to turn back or tow back asylum seeker boats to Indonesia whenever they (or their senior onshore ADF commanders — it was never clear where such decisions were made) judged this could safely be achieved.
A few such turnbacks succeeded, but there were five asylum seeker deaths, huge stress, and the costs to Navy solidarity and morale were high.
In total, 12 Suspected Illegal Entry Vessel (SIEVs) were intercepted during Operation Relex in 2001. Of those 12, the Navy attempted to enforce government turnback policy on ten occasions. Of those ten attempts, only four boats and their occupants were successfully returned to Indonesian waters. Five asylum seekers died or went missing in two of these encounters.
Tony Abbott as Opposition Leader, on several occasions in 2011 and 2012, has affirmed with increasing vehemence his 'core policy' for asylum seeker turnback. He has pledged to resume SIEV turnbacks to Indonesia if elected, for example in October 2011:
It should be an option to turn the boats around where it is safe to do so. The Navy's done it before, it can do it again.
Coalition Immigration spokesman Scott Morrison further detailed his leader's thinking. He said an Abbott government would be prepared to 'own' any decision to tow an asylum seeker boat back to Indonesia and would not hold the ADF accountable for the results. He said the decision to return boats would be informed, but not decided, by a situation report provided by Navy personnel at the scene.
Our intention is to ensure that those charged with carrying out government policy [are] only responsible for its execution, not its enactment. We will make our policy decision and we will bear responsibility for the consequences. We won't be putting any naval and immigration officials at the end of the stick.
Clearly, the Navy is not at all comfortable at this possible prospect, despite Morrison's reassurances. Admiral Ray Griggs, current Chief of the Navy who commanded the frigate HMAS Arunta during Operation Relex, led two forced tow-back attempts — one successful and one not.
He testified in October 2011 to a Senate Estimates committee that safety issues under the International Convention for the Safety of Life at Sea, as judged by experienced mariners, would influence a commander's advice whether to attempt to tow or turn a SIEV back to Indonesia: factors such as the state of the engine, the state of the hull, the presence of life-saving equipment, radio, any navigational equipment. He noted:
There are risks involved in this whole endeavour. As I said, there were incidents during these activities [in 2001], as there have been incidents subsequently, which have been risky. There have been fires lit ... attempts to storm the engine compartment ... people jumping in the water and that sort of thing.
Griggs could have said a lot more. The notorious 'children overboard' affair itself originated in unsuccessful attempts by HMAS Adelaide to force an intercepted asylum seeker boat SIEV 4 to return to Indonesia, resulting in successive probable acts of sabotage by passengers to their boat's engines, steering gear and hull.
Most of the history of turn-back attempts in 2001 was ugly and violent. People on SIEVs were usually initially amenable and cooperative after Navy interception, as long as they believed assurances that they were being taken to Australian territory for processing. But if they came to suspect they might be being turned around by trickery or coercion and towed back to Indonesia, situations quickly became emotionally charged and dangerous, both for themselves and for ADF boarding parties.
To achieve successful tow-backs, commanders were forced to resort to lies and subterfuges in order to gain male passengers' trust sufficiently to be able to lock them away safely in the hold. In the case of SIEV 7, a vicious on-deck riot ensued when distraught passengers realised they had been tricked into being towed back overnight to the edge of Indonesian territorial waters. There was a suicide explosion attempt involving a man self-dousing with petrol while standing close to an Australian boarding crew.
Throughout this period, there were various attempts by asylum seekers to sink, set fire to or blow up boats in Australian custody, to prevent tow-back. These incidents put both passengers and supervising ADF personnel at high physical risk. The emotional distress to ADF personnel from such confrontations was also high. Some of them blamed asylum seekers for subjecting them to such risks and distress. Others blamed their orders.
The damage to service morale and solidarity was significant. One disgusted crew member described conditions on one Navy ship transporting angry asylum seekers to Nauru as akin to a slave ship. A senior naval reserve commander, a doctor, left his ship in Darwin after a month of Operation Relex operations, telling the press:
I participated in the boarding, attempted removal and actual forced removal of suspected illegal immigrant vessels to Indonesia ... nearly everyone I spoke to that was involved in these operations knew that what they were doing was wrong.
Even in the higher ranks of the Navy, there was evidence of divergent views, signs of an incipient breakdown of trust and solidarity between some senior officers more disposed to give the government everything it wanted and let government 'wear' the outcomes, and others who wanted to draw a professional line of conscience beyond which governments should not try to push them.
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Can Abbott and Morrison really be serious about turning back boats? Do they really want to expose the Navy to these grave problems? The fear, the rage, the encouragement to self-harm and lethal criminality, the emotional damage to asylum seekers and Navy personnel alike, the risks to Australian–Indonesian relations?
It is vital that turn-back policies not be reinstated. The ADF and its friends should continue to resist this strenuously. It is essential to maintaining Navy morale and the integrity of the ADF's ethical and legal standards that they not be compromised by any government's improper pressures on them to step over the line here.
In respect of Morrison's reassurances that government would wear the responsibility for any adverse consequences from Navy turn-back operations, the Nuremberg trials made quite clear that military commanders can never escape personal accountability for illegal actions that cause civilian death by arguing that they were only following government orders. It is rather amazing that Abbott and Morrison appear not to comprehend this.
Another problem with reinstated turn-back practice is that it would encourage a return to the negative 2001 public view of asylum seekers as essentially threatening and hostile people — as enemies of Australia. In this environment, the risk of proper Safety of Life at Sea (SOLAS) practice being neglected or compromised in Australian Border Protection Command operations would be magnified.
As retired RAN Commodore Sam Bateman warns: whatever policies might be adopted by any future Australian government to deter or slow down numbers of boat people arrivals, these policies should never put Australian border security professionals into situations where they were under political or chain-of-command pressures to violate or put at risk their own SOLAS obligations to all people whom they encounter at risk at sea.
Turn-back is, quite simply, inconsistent with decent SOLAS practice in border protection.
This is an edited extract from former diplomat Tony Kevin's latest book Reluctant Rescuers, available from leading bookshops or from the book's website. Tony was also the author of A Certain Maritime Incident — the sinking of SIEV X (2004).