It is essential that we receive unambiguous public confirmation that Indonesia is agreeing to the tow-back of boats. Unilateral action by the Abbott Government is just not on. It would fracture our relationship with Indonesia, would be counterproductive and contrary to our international legal obligations.
All you need do is consider Recommendation 19 of the 2012 Expert Panel chaired by Angus Houston who had headed our armed services and Michael L’Estrange who had been head of John Howard’s Cabinet Office and then head of the DFAT.
Recommendation 19 reads: “The Panel notes that the conditions necessary for effective, lawful and safe turnback of irregular vessels carrying asylum seekers to Australia are not currently met, but that this situation could change in the future, in particular if appropriate regional and bilateral arrangements are in place .”
In their report the Expert Panel spoke about turnbacks at para 3.77: “Turning back irregular maritime vessels carrying asylum seekers to Australia can be operationally achieved and can constitute an effective disincentive to such ventures, but only in circumstances where a range of operational, safety of life, diplomatic and legal conditions are met:
- The State to which the vessel is to be returned would need to consent to such a return.
- Turning around a vessel outside Australia’s territorial sea or contiguous zone (that is, in international waters) or ‘steaming’ a vessel intercepted and turned around in Australia’s territorial sea or contiguous zone back through international waters could only be done under international law with the approval of the State in which the vessel is registered (the ‘flag State’).
- A decision to turn around a vessel would need to be made in accordance with Australian domestic law and international law, including non-refoulement obligations, and consider any legal responsibility Australia or operational personnel would have for the consequences to the individuals on board any vessel that was to be turned around.
- Turning around a vessel would need to be conducted consistently with Australia’s obligations under the SOLAS Convention, particularly in relation to those on board the vessel, mindful also of the safety of those Australian officials or Australian Defence Force (ADF ) personnel involved in any such operation.”
They then say, “In the Panel’s view, the conditions noted above and required for effective, lawful and safe turnbacks of irregular vessels headed for Australia with asylum seekers on board are not currently met in regard to turnbacks to Indonesia.”
Mr Abbott and Mr Morrison, we need to know what’s changed. This is not war. This is the rule of law on the high seas during peacetime. This is Australia.
Fr Frank Brennan SJ, Professor of Law, Australian Catholic University