‘Turning back boats’

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What does a policy of ‘turning back boats’ involve?

Operation Relex

A policy of ‘turning back boats’ was introduced by the Howard Government on 3 September 2001. Under this policy, named Operation Relex, the Royal Australian Navy was directed to intercept and board ‘Suspected Illegal Entry Vessels’ (SIEVs) – that is, boats that were suspected of carrying people seeking to come to Australia without a visa – when they entered Australia’s contiguous zone (24 nautical miles from the Australian coast).1 The Navy was directed to return these boats to the edge of Indonesian territorial waters, either by operating the boat under its own engine power or attaching the boat to an Australian vessel and towing it.2  The aim of Operation Relex was to deter people from arriving in Australia by boat by denying them access to Australia.3

Operation Relex ended on 13 March 2002 to enable information relating to the operation to be made available to the Senate Select Committee’s Inquiry into a Certain Maritime Incident.4  It was succeeded by Operation Relex II, which commenced on 14 March 2002 and ended on 16 July 2006.5

Operation Sovereign Borders

The Abbott Government’s policy is to turn back boats ‘where it is safe to do so’.6  This is a key component of ‘Operation Sovereign Borders’, the government’s military-led inter-agency border security initiative.7  News reports indicate that since 5 January 2014 asylum seekers attempting to reach Australia by boat from Indonesia have been intercepted, loaded on to single-use lifeboats and towed back to just outside Indonesian waters.8  At a Senate Estimates hearing in February 2014 it was revealed that $2.5m had been spent to purchase the lifeboats.  9

In late June 2014, Australian authorities intercepted two boats of Sri Lankan asylum seekers. The first group, comprised of 37 Sinhalese and four Tamil asylum seekers, was returned directly to Sri Lankan authorities at sea after a cursory ‘enhanced screening’ process to determine whether or not they raised any ‘credible’ protection claims.10  The second group, comprised of 157 Tamil asylum seekers, had set sail from a refugee camp in India. They, too, were subjected to enhanced screening, and then were detained on an Australian Customs vessel for four weeks while the Australian government negotiated with Indian authorities about their possible return.  When India refused, they were taken briefly to the Australian mainland and then transferred to offshore detention on Nauru.11  A case was brought before the High Court of Australia on behalf of one of the asylum seekers. Among other things, it was argued that the Australian government had unlawfully detained the asylum seekers at sea.12

The case was heard in October 2014, and the judgment was handed down in January 2015.13   By a narrow 4:3 majority, the High Court held that the detention was not contrary to Australian law. It is important to stress that the decision turned on an interpretation of the scope of powers conferred on Australian officials under a domestic statute (the Maritime Powers Act). The judges did not engage in any detailed analysis of whether such detention was lawful under international law.14 

In November 2014, Australian authorities intercepted a boat carrying 38 Sri Lankan asylum seekers.15  The asylum seekers were assessed under the enhanced screening process, which took place on board the Border Protection Command vessel.16  All but one asylum seeker were handed over to the Sri Lankan navy, with that one individual being transferred to an offshore processing facility to further investigate their asylum claims.17

A total of 15 boats were turned back between 19 December 2013 and January 2015,19  with four of these turnbacks involving the use of Australian-supplied lifeboats.20  Another boat was intercepted in early February 2015. The four asylum seekers on board that boat were subjected to enhanced screening at sea and then transferred to Sri Lankan authorities.21

On 20 March 2015 a boatload of 46 Vietnamese asylum seekers were intercepted by Australian authorities and returned directly to Vietnam on 18 April, after being subject to an interview process known as ‘enhanced screening’.22 The Commander of Operation Sovereign Borders, Major General Andrew Bottrell, described this return as a ‘take-back’ rather than a ‘turn-back’, as it was a situation in which Australia worked ‘with a country of departure in order to see the safe return of passengers and crew’.23 In May 2015 news outlets reported that a boatload of 65 asylum seekers had crashed onto a reef off West Timor after being intercepted, transferred to another boat and taken back to Indonesian waters by Australian authorities.24

 

What operational challenges are posed by turning back boats?

Experience under Operation Relex

Past experience suggests that a policy of turning back boats is fraught with significant risks. The challenges involved in intercepting and turning back boats under Operation Relex were documented in the Senate Select Committee’s Inquiry into a Certain Maritime Incident.25 Under Operation Relex, 12 boats were intercepted, although only four were turned back to Indonesia.26  Three SIEVs sank at some point during the Navy’s operations: two lives were lost in the process, and the rescued passengers were taken to detention centres on Christmas Island, Manus Island (Papua New Guinea) and Nauru for processing.27 The passengers on the remaining five SIEVs were also taken to detention centres for processing.28  Even in the four ‘successful’ cases where SIEVs were turned back to Indonesia, the Navy was required to deal with incidents such as threats and acts of self-harm, aggression towards members of the boarding party, and acts of sabotage to the boat. 29

In total, 17 SIEVs were intercepted under the Howard Government, although only five were turned around.30  The fifth and final boat was turned back in November 2003, under Operation Relex II.31

According to evidence provided by Vice Admiral Ray Griggs at a Senate Estimates Hearing in 2011:

There are risks involved in this whole endeavour. As I said, there were incidents during these activities, as there have been incidents subsequently, which have been risky. There have been fires lit, there have been attempts to storm the engine compartment of these boats, there have been people jumping in the water and that sort of thing. Again, I am going back to 2001.32

Similar concerns were expressed by retired Admiral Chris Barrie, who was Chief of the Australian Defence Force during Operation Relex,33  and in a Border Protection Command report obtained by The Australian in 2012 under Freedom of Information laws.34

Experience under Operation Sovereign Borders

On several occasions during Operation Sovereign Borders asylum seekers have reported receiving heavy-handed treatment by Australian authorities after their boats were intercepted off Indonesia and Sri Lanka. Allegations have included limited food and access to sunlight, limited freedom of movement, separation of families and verbal abuse.35  In January 2014 allegations emerged that asylum seekers’ hands were burnt by Naval officers after their boat was intercepted.36  Select documents pertaining to this incident were released under Freedom of Information in August 2014, and indicate that the harm may have been caused by asylum seekers’ attempts to start a fire on the boat.37

The government has denied all claims that asylum seekers have been mistreated in the course of Operation Sovereign Border operations, although remains unwilling to comment or inquire into ‘on-water’ activities.’38  Former Prime Minister Tony Abbott sought to justify the government’s silence by stating that efforts to deter boats are akin to a ‘war’ against people smugglers, ‘and if we were at war, we wouldn’t be giving out information that is of use to the enemy’.39

Given that boats coming to Australia are commonly unseaworthy and overcrowded,40  it seems that turning back boats and leaving them at the edge of Indonesian territorial waters would seldom be ‘safe’. Indeed, during Operation Relex, a boat which was ‘successfully’ turned around sailed for 12 hours towards Indonesia before it ran aground, about 300 or 400 metres from an island. Three people reportedly drowned trying to reach the shore.41

According to defence sources, the only ‘safe’ way of returning a boat would be for the Australian Navy to transfer control of the intercepted boats to the Indonesian Navy at the edge of Indonesian territorial waters, or alternatively to transport intercepted boats directly to Indonesian shores.42  Both of these would require the cooperation of the Indonesian Government. However, to date, Indonesian cooperation has not been forthcoming and in May 2014 the Yudhoyono government expressed disappointment at the turn back policy.43

There are also other risks inherent in a policy of turning back boats. According to Associate Professor Savitri Taylor at La Trobe University, ‘[a]part from the risk of death by drowning, the unsanitary and volatile conditions on board such vessels would constitute a serious risk to health and well-being especially of children’.44

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Is turning back boats consistent with international law?

Obligations under law of the sea

Under the UN Convention on the Law of the Sea (UNCLOS), vessels on the high seas (all parts of the sea, except the territorial sea or the internal waters of a country) are subject to the exclusive jurisdiction of the State in which the vessel is registered (the ‘flag state’).45 Hence, without the consent of the flag state, Australia has no right to intercept and turn back boats on the high seas.46 Apart from limited situations where the exercise of universal jurisdiction is permitted (such as to prohibit the transportation of slaves or to repress piracy47 ), Australia is only allowed to board a boat (a) if is a stateless vessel or (b) in the case of a rescue operation.48

Moreover, although Australia is permitted to ‘exercise the control necessary’ to prevent infringement of its immigration laws within the contiguous zone,49  the requirement of necessity mandates a proportional response in each case. One may well question whether boarding a boat and forcibly returning it to Indonesia constitutes a proportional response in the circumstances.50  There is support for the position that the power to prevent infringement of laws in the contiguous zone would ‘merely entail a right to approach, inspect and warn a vessel, rather than to take enforcement measures such as arrest, diversion or the forcible escort to a port’.51  In any case, Australia’s exercise of jurisdiction in the contiguous zone is limited by its obligations under international refugee law and human rights law. 49

Australia also has obligations to render assistance to those in distress at sea, in accordance with UNCLOS, the International Convention for the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue.53  Australia could be in breach of these treaties if it turned back unseaworthy boats and thereby placed lives at risk. 54 Under international law, Australia would remain responsible if asylum seekers who were placed onto lifeboats and towed back into international waters by Australian authorities ended up in a situation of distress. 

Obligations under human rights and refugee law

Australia would be at risk of breaching international refugee law and human rights law if it turned back boats without assessing refugee claims made by people on board. Specifically, it would be at risk of breaching its obligation of non-refoulement under the Refugee Convention, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which require Australia not to return people to countries where they face a risk of persecution and other forms of serious harm.55  Indonesia is not a party to the Refugee Convention and refugees in Indonesia are treated as illegal migrants, liable to detention and deportation. 56 Sri Lanka is not a party to the Refugee Convention and there are reports of human rights violations by Sri Lankan security forces.57  By turning boats back to Indonesia or Sri Lanka, Australia is therefore at risk of breaching its non-refoulement obligations. This is the case irrespective of whether Australia is able to secure Indonesian cooperation on its policy of turning back boats, since a State cannot ‘contract out’ of its non-refoulement obligations or transfer responsibility for its obligations to another State. 58

The likelihood of Australia breaching the principle of non-refoulement is significant, especially since the overwhelming majority of people coming to Australia by boat are, in fact, refugees. The most recent figures from the Department of Immigration show that, in the March quarter of 2013, more than 90 per cent of asylum seekers arriving by boat were found to be refugees.59  This is consistent with data from previous years: in 2010–11, 93.5 per cent of boat arrivals were refugees, and in 2011–12, 91.0 per cent were refugees.60  Yet, during the Senate Select Committee’s Inquiry into a Certain Maritime Incident, when Real Admiral Smith was asked whether there were any processes in place under Operation Relex to identify potential refugees on SIEVs and handle their claims, he responded:

It had no relevance for us. Our mission was clear – that is, to intercept and then to carry out whatever direction we were given subsequent to that. The status of these people was irrelevant to us ... Claims from the UAs [unauthorized arrivals] were not factors to be taken into account in terms of how we conducted that mission.61

In May 2015 the Department of Immigration told a Senate Committee that the 46 Vietnamese intercepted and held at sea during March and April 2015 were subject to 'enhanced screening' interviews designed to assess whether individuals had claims that may engage Australia's non-refoulement obligations, although as the Department made clear, this was not a refugee status determination procedure.62

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Do other countries turn back boats?

Some other countries also turn back boats, but as explained above, the legality of doing so is highly questionable.

Since 1981, the United States has had a policy of intercepting and turning back boats carrying people seeking to enter the US mainly from Haiti, Cuba, the Dominican Republic and the Bahamas.63  In contrast to the unilateral nature of Operation Relex, the US returns boats to these countries pursuant to agreements with these countries.64  The approach of the US towards potential refugee claims depends on the country of origin of the individuals concerned. Under current US policy, Cubans who are intercepted at sea are taken to Guantanamo Bay, where they are screened and returned to Cuba only if they are found not to have a protection claim.65  On the other hand, intercepted Haitians are subjected to a ‘shout test’: they are not advised of their right to seek asylum, and only those who express a fear of returning receive a shipboard screening. 66 Those who are found to have a ‘credible fear’ are then transferred to Guantanamo Bay in Cuba for refugee status determination. 67 Although the US policy in relation to identifying and processing asylum claims has been criticized as far from adequate,68  Operation Relex contained no safeguards at all to identify potential protection claims (and nor do the Coalition’s current proposals).

In the European Union, Frontex (the EU’s border management agency) has coordinated a number of joint missions to intercept and return boats. For example, Frontex has worked with Spain to return boats to Cape Verde, Mauritania and Senegal, countries with which Spain has agreements in place. 69 There is little data publicly available about Frontex operations, including whether any asylum claims have been made in the course of interceptions, which raises the concern that Frontex operations may involve breaches of international law. 70

From May 2009, Italy began intercepting and returning boats to Libya pursuant to an agreement with that country. 71 The policy contained no safeguards to identify and protect refugees, and was suspended after the European Court of Human Rights ruled in 2012 that it violated the European Convention on Human Rights (ECHR) and the principle of non-refoulement.72  In particular, the Court held that Italy had breached its obligation to protect the applicants from torture and inhuman or degrading treatment or punishment (ECHR Art 3). By returning the applicants to Libya without assessing whether they were in need of protection, Italy exposed the applicants to the risk of direct  refoulement (due to the risk of harm contrary to ECHR Art 3 in Libya) and also indirect refoulement (due to the risk that Libya would expel the applicants to their countries of origin, where there was a risk of harm contrary to ECHR Art 3). 73 Importantly, the Court held that the principle of non-refoulement applied extraterritorially (that is, on the high seas) and not just on Italian soil or within Italian territorial waters. 74

In 2013, Thailand turned back boats of Rohingya people fleeing Burma following the conflict between Buddhists and Muslims in the state of Rakhine in Burma.75  UNHCR expressed grave concern about these pushbacks and also about reports that shots were fired at Rohingya people during the interception of a boat.76  Most recently, in 2015 Malaysia and Indonesia pushed back boatloads of Rohingya and Bangladesi asylum seekers and migrants, before responding to international pressure to allow the boats to land.77

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Further reading

‘A Coalition Government for Australia –What Does This Mean For You?’, ABC Radio Australia, 8 September 2013

‘Boarding and Turning around Asylum Seeker Boats Could Be “Piracy” Says Former Defence Force Chief’, The World Today, 11 April 2013

‘Indonesian MP Tantowi Yahya Says Coalition’s Asylum Seeker Policy Threatens to Damage Relations’, Lateline, 19 September 2013 

Bachelard, Michael and David Wroe, ‘PM’s Boats Compromise Offers a Way to Ditch Tow-Back Policy’, The Sydney Morning Herald, 2 October 2013 

Davidson, Helen, ‘Indonesian MP Says Country Will “Fully Reject” Coalition’s Asylum Boat Policy’, The Guardian, 19 September 2013

Expert Panel on Asylum Seekers, Report of the Expert Panel on Asylum Seekers (13 August 2012)

Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 3rd ed, 2007) 

Maher, Sid, ‘Tony Abbott Enlists Jakarta on Asylum Boats’, The Australian, 2 October 2013 

Maher, Sid and Peter Alford, ‘Jakarta Strives for Asylum Boats Unity with Australia’, The Australian, 1 October 2013

McAdam, Jane, ‘Opinion: Australian Parties in “Race to Bottom” on Asylum Seeker Policy’, CNN, 4 September 2013 

Moreno-Lax, Violeta, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174

Murphy, Flynn, ‘Abbott Says It Is Standard Naval Practice to Turn Boats Around on the High Seas’, PolitiFact Australia, 8 August 2013 

Roberts, George, ‘Incoming Foreign Minister Julie Bishop Says Coalition Will Negotiate With Indonesia on Asylum Seekers’, ABC News, 12 September 2013

Saul, Ben, ‘Explainer: The Legality of Turning or Towing Back Asylum Boats’, The Conversation, 19 July 2013

Senate Select Committee, Inquiry into a Certain Maritime Incident: Report, 23 October 2002

Stewart, Cameron, ‘Law of the Sea Versus the Dictates of Canberra’, The Australian, 10 March 2012 

Taylor, Lenore, ‘Indonesia “Would Co-Operate” with Coalition on Boats’, The Guardian, 3 June 2013

Taylor, Savitri, ‘Rethinking Australia's Practice of “Turning Around” Unauthorised Arrivals: The Case for Good Faith Implementation of Australia's Protection Obligations’ (1999) 11 Pacifica Review: Peace, Security and Global Change 43

Taylor, Savitri, ‘Turning Back the Boats: Bad Policy Whatever Way You Look At It’, The Conversation, 12 June 2013

UNHCR, Refugees and Asylum-Seekers in Distress at Sea – How Best to Respond? (Expert Meeting, Djibouti, 8–10 November 2011)

UNHCR, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials (December 2011, 2nd ed)

Whitmont, Debbie, ‘To Deter and Deny’, ABC Four Corners, 15 April 2002

Wroe, David and Bianca Hall, ‘Say We Vote to Turn Back Those Boats. What Next?’, The Sydney Morning Herald, 13 July 2013.

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Endnotes