Second Reading - Maritime Powers Bill 2012, Maritime Powers (Consequential Amendments) Bill 2012
(13:09): The Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012 seek to establish a framework for the exercise of the Commonwealth's maritime enforcement powers. The principal bill establishes a system of authorisations under which a maritime officer may exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on certain grounds. It also provides for the enforcement powers available to maritime officers, including boarding, obtaining information, searching, detaining, seizing and retaining things and moving and detaining persons, and creates offences for failure to comply.
The principal bill proposes to consolidate the powers and functions that currently exist in existing law, chiefly under the Customs Act 1901, the Migration Act 1958, the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984.
The unique aspects of the maritime environment merit a tailored approach to maritime powers, helping to ensure flexibility in their exercise and to assist maritime officers to deal with quickly changing circumstances and difficult and dangerous situations. The powers contained in the bill are primarily based on powers currently available to operational agencies.
The bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 12 September 2012. Coalition senators, in a dissenting report recommended that the bills not be supported.
Coalition senators believe this legislation may represent a surreptitious attempt to remove the Commonwealth's power to turn back unauthorised boats as part of an effective national border control policy.
The term 'surreptitious' was used because agency witnesses before the committee were unable to state whether this power is preserved in the bill. Agency witnesses suggested that clause 5 of the bill purports to preserve the Commonwealth's prerogative powers, which would include the power to repel unauthorised vessels.
However, given that the principal bill clearly seeks to codify Commonwealth maritime powers, it seems clear that any prerogative powers must be read down. For example, clauses 31 and 32 seek to provide in a comprehensive way for acts that may be performed and for what purposes they may be performed by an authorised officer, which do not include turning vessels back. Similarly, the powers of stopping, manoeuvring and chasing in clause 54, and those of detaining vessels in clause 69, are also silent on turning vessels back.
The coalition will be moving amendments to ensure that this legislation is not read down in a way that brings into question the undoubted power of the Commonwealth to refuse entry into Australian waters or, if necessary, to tow back unauthorised maritime arrivals. This is a matter upon which the coalition expects bipartisan support. After all, on the eve of the 2007 election Mr Rudd told the Australian newspaper:
… Labor would take asylum-seekers who had been rescued from leaky boats to Christmas Island, would turn back seaworthy vessels containing such people on the high seas …
"You'd turn them back," he said of boats approaching Australia, emphasising that Labor believed in an "orderly immigration system" enforced by deterrence.
"You cannot have anything that is orderly if you allow people who do not have a lawful visa in this country to roam free," he said. "That's why you need a detention system. I know that's politically contentious, but one follows from the other.
"Deterrence is effective through the detention system but also your preparedness to take appropriate action as the vessels approach Australian waters on the high seas."
Mr Rudd's Labor government was elected on a policy that included the interdiction and repulsion of illegal entry vessels. The coalition has always maintained that turning boats around where it is safe to do so is an important part of the suite of measures necessary for the effective management of Australia's borders, and in this we apparently had the agreement of the Labor Party—at least up until the 2007 election. Of course, we now know that the subsequent Labor governments have made a complete hash of the protection of our borders and the maintenance of an orderly immigration program. In fact, since that 2007 election, 570 boats carrying 33,495 people have arrived.
This is almost 20,000 more people, and more than double the number of boats that arrived during the entire 11½ years of the Howard government. More than a thousand people have drowned. We hear of asylum seekers on bridging visas released from detention centres being lodged in university halls of residence, abandoned houses and office buildings. This is at a cost of billions of dollars, while those accepted under our humanitarian resettlement programs are made to wait; and now the government demonises skilled migrants—the backbone and success story of our immigration program. Yet here we are debating a bill on the powers of our maritime officers to deal with unlawful incursions—whether of people, contraband or disease—into Australian territorial waters, and its drafters cannot definitively tell us whether those powers include the power to turn the boats around. That is why the coalition will move the amendments that have been circulated in the chamber. It is not our expectation that those powers will be exercised routinely; however, situations will arise where it is safe and proper to do so. In those cases, the necessary orders will issue and those responsible for issuing the orders will find that under the legislation.
As I have said, this should not be a controversial proposition. It was explicitly discussed in the Houston report. The Houston report found that turning boats back 'can be operationally achieved and can constitute an effective disincentive'. At page 126, the report states:
The following principles for implementing turnbacks are based on international and domestic legal considerations, as well as diplomatic and operational considerations:
(1) The State to which the vessel is to be returned would need to consent to such a return.
I pause here to say that the government and the Greens have failed to acknowledge that, as the report confirms, this consent may be provided by acquiescence. 'Acquiesce' is a very specific term, as the drafters of the Houston report were well aware. This is precisely what was invoked when the policy of turning back boats was last implemented under the Howard government. The second principle was:
Turning around a vessel outside Australia's territorial sea or contiguous zone…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').
These provisions, I note, are set out in article 8, paragraph 2 of the Protocol against the Smuggling of Migrants by Land, Sea and Air. This does not, however, address the situation of a flagless vessel, which is how the majority of cases first present at sea, and provide a legal basis for interception.
Paragraph 7 of that same protocol states:
A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea and is without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidence confirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domestic and international law.
The third principle cited by the Houston report states:
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.
There is certainly no clear legal obligation arising under article 33 of the refugee convention to prevent Australia doing this in extraterritorial waters. The US Supreme Court held in Sale v Haitian Centres Council that the US Coast Guard's high seas interception and return of Haitian asylum seekers did not contravene article 33. This argument is strengthened by the position that non-refoulement has increasingly become an established principle of customary international law. In addition, Indonesia is a signatory to numerous other conventions that also deal with non-refoulement, including the convention against torture. It is also a signatory to the International Covenant on Civil and Political Rights.
The Houston report's fourth principle is:
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 Defence Force personnel involved in any such operation.
The Guidelines on the Treatment of Persons Rescued at Sea 2004 state that the government responsible for the search-and-rescue region in which survivors are recovered is responsible for providing a place of safety or ensuring that such a place of safety is provided. The safety of Defence Force personnel is managed by the chain of command, which has always been the coalition's policy. Sadly, we are now seeing vessels in distress are being rescued by our border protection agencies, which have every legal right to return people to the closest place of practicable safety but are not doing so. Instead, they are being treated as a water taxi service to facilitate asylum claims on the Australian people. Some such claims are made by intimidation through threats to their own safety and potentially, later, to the crew themselves to force the hand of these vessels.
We have a clear difference in attitude here between the government and the coalition. The government has been dragged kicking and screaming to deal with these issues of enforcing our sovereignty at sea on our borders. The coalition has always believed in it. We believe we need strong laws and we also believe we need a government that is prepared to use those strong laws and use every option available to it to protect our borders. This government does not have that track record and it does not have the trust of the Australian people.