If legal, there’s no reason to keep hidden the government’s international law advice which permits Operation Sovereign Borders (aka Operation Son-of-a-Bitch). Why then the secrecy?
Legality may have been lost at sea
By David Letts*
The Hollowmen TV series coined the phrase “policy on the run is policy under-done”.
Has the federal government, through Operation Sovereign Borders (OSB) in relation to refugee claimants, widened the scope of this phrase to now include the law?
On 15 May 2014 in Canberra, Lieutenant-General Angus Campbell addressed a dinner hosted by the Australian Strategic Policy Institute (ASPI). The title of that address was “Operation Sovereign Borders: Initial Reflections and Future Outlook”. It seems that this occasion was the first at which General Campbell has spoken publicly (apart from appearances before parliamentary committees) about his task of leading the Joint Agency Task Force that “has been established to ensure a whole-of-government effort to combat people smuggling and protect Australia’s borders”.
A copy of the address given by General Campbell can be found on the websites of the Border Protection Command and ASPI. The matters raised in the address provide some useful insights into OSB, but the issues contained in the address are, in the main, already in the public domain.
One significant issue that the address does not divulge is the legal basis that underpins the activities being conducted as part of OSB. This is perhaps the most challenging issue that confronts those involved with OSB as it has become apparent over the past few months that innovative, and perhaps legally questionable, operational methods are a hallmark of the “on-water” activities being conducted as part of OSB.
Both the Minister for Immigration and Border Protection, Scott Morrison, and General Campbell have resolutely refused to address issues that they have categorised as “operational” or “on-water”. Interestingly, it seems that the legal basis which underpins activities being conducted as part of OSB fits into this category, as there has been no public release of any information that would help to clarify the legality of OSB activity.
In terms of OSB activities that have a questionable legal basis, it is now clear that Australian navy and customs vessels have been involved in operations where:
- Vessels have been towed toward Indonesia by Australian ships;
- People have been transferred from vessels to lifeboats and then towed and/or directed toward Indonesia;
- Australian navy and customs vessels have conducted operations in Indonesian waters that have led to apologies being presented by Australia to Indonesia.
Recently, one further questionable legal issue emerged when allegations were made that a boat was returned to Indonesia with more people on board than had been the case when the vessel was intercepted.
What is preventing the government providing details of the legality of each of these activities? There can no longer be any serious suggestion that to do so would provide those involved in people smuggling with an advantage in terms of forecasting actions that Australia might take to prevent arrivals by sea. So why is there such a lack of information?
In the question-and-answer session that followed General Campbell’s address, the first question that was raised sought to obtain details of the legality of OSB activities. Regrettably, but predictably, the reply was rather curt, with General Campbell assuring those present that he was satisfied that all OSB activities complied with relevant law.
Unfortunately, the validity of this stance is easily undone. The most striking example relates to one of the activities noted earlier, when the government admitted that Australian navy and customs vessels had entered Indonesian territorial or archipelagic waters and conducted activities that were not consistent with the right of innocent passage that such vessels would otherwise enjoy in these waters. Even after this admission, and the public statement that an inquiry would be conducted into the incursions, the release of information following completion of the Joint Review of Operation Sovereign Borders Vessel Positioning has been limited and incomplete.
A copy of the review can be obtained from the online Australian Customs and Border Protection FOI disclosure log, but it has been heavily redacted so that any useful information regarding precise circumstances of the incursions cannot be obtained. In turn, this renders evaluation of the legal basis for the operations in which Australian vessels have been engaged very difficult to undertake.
The result is that an information vacuum is created in which speculation, innuendo and inference fill the void. As a nation that prides itself on its compliance with the rule of law, this situation places Australia in a most undesirable position, with the potential to cause considerable harm to the country’s international relations.
The refusal of the government to provide details of the legal basis for activities that have already been conducted under OSB is puzzling. The last time that Australian military forces were involved in an operation that had a clearly questionably legal basis was in 2003 when Australia joined the United States, Great Britain and others in the war in Iraq. On that occasion, a legal opinion was obtained from the senior legal advisers in the Attorney-General’s Department and the Department of Foreign Affairs and Trade that there was a solid legal basis for the military operations that took place.
Tellingly, this opinion was publicly released by then prime minister John Howard, albeit somewhat reluctantly and, while there was considerable disagreement with the opinion, at least it was placed in the public domain.
In stark contrast, there has been no such release of any legal opinion regarding operations being conducted under OSB. There is no obvious reason why the government should not rectify this situation so that the Australian public, and the international community, can properly understand how Australia considers that the actions being taken under OSB comply with the rule of law.
* Associate Professor David Letts is the co-director of the Centre for Military and Security Law at the ANU College of Law. This article appeared first in The Canberra Times.
ABC coverage of the first six months of Operation Sovereign Borders: