Tony Abbott’s statement on Monday 16 August that he would personally decide which asylum seeker boats would be turned back from Australian waters seems to me to fly in the face of three legal frameworks by which Australian Governments are bound:
(1) The 1951 Convention Relating to the Status of Refugees, which makes it lawful for people with a well-founded fear of persecution to seek protection from states parties to the Convention (“Contracting States”), and imposes an obligation upon Contracting States to afford them protection.
(2) The 1974 Convention on the Safety of Life at Sea (SOLAS), Chapter V of which imposes a general obligation for ships’ masters to proceed to the assistance of those in distress and for Contracting Governments to ensure that all ships shall be sufficiently and efficiently manned from a safety point of view. Chapter IX requires a safety management system to be put in place by anyone who has assumed responsibility for the ship, a responsibility which, along with other safety related responsibilities specified in the Convention, would no doubt fall to the Royal Australian Navy once it has apprehended a vessel, whether it escorted it to port or directed it to turn around.
(3) The Defence Act 1903, which makes clear, and for good reason, that the power to command the Australian Defence Force is vested in the Chief of the Defence Force. The Defence Act gives neither the Defence Minister nor the Prime Minister the power to issue commands to individual defence personnel.
Section 8 of the Act provides that “The Minister [for Defence] shall have the general control and administration of the Defence Force” and that the powers of the Chief of the Defence Force “shall be exercised subject to and in accordance with the directions of the [Defence] Minister”.
This power to direct the Defence Force is of course limited to a power to give lawful directions, which is a problem in relation to any direction which is non-compliant with Australia’s obligations under the Refugee Convention.
Also, the power of direction is a general power to instruct the CDF, by written order from the Governor-General, regarding what the Government wants the Australian Defence Force to do. How to do it, and what assets to use, is a matter for the CDF, based on his expert military knowledge and that of his subordinate commanders, and on the other demands on the ADF.
In making his announcement on Monday Mr Abbott stated that “it is for the Prime Minister to make this kind of call”, but that he would take the advice of the naval commander on the spot (see ABC Online News report here).
This is rubbish, and shows that Mr Abbott has no idea about how the relationship between the Government and the Defence Force works. The Defence Act does not contemplate that the Prime Minister would conduct indirect telephone conversations with individual commanders and then give orders to them. What next? Conversations with individual Army company commanders about whether or not to attack a Taliban redoubt? About the only lawful and sensible course for Mr Abbott to take in relation to asylum seeker boats would be to ask the Minister for Defence to direct the CDF that the Government expects all asylum seeker boats to be detected, apprehended, and taken safely to a port within Australian territory where their claims can be registered and determined.
This episode tells us something deeper and more disturbing about Mr Abbott than just his lack of understanding of the issues involved. It demonstrates that he shoots from the hip without doing his homework, and lacks the judgement to identify an issue on which he might need to take some advice.
Taken to together with other comments he has made during the election campaign – in particular his comments about not being “rolled” by his Cabinet colleagues if he becomes Prime Minister – suggests that he has only a tenuous grasp of how the Westminster system works. He appears to believe that, as he would put it, having been “elected Prime Minister” (itself a nonsensical notion in our political system, he is elected by his party, not the people), he becomes a kind of elected dictator and it falls to him to give orders to everyone in sight about anything that comes into his head.
What actually happens when a party wins government is that the Ministers are given the power by the Governor-General, on the advice of the Government, to administer the various enactments of the Commonwealth Parliament. This is done by means of the Governor-General issuing a dry-as-dust document called the Administrative Arrangements Order, which specifies which Acts or parts or sections of Acts are administered by which Minister. The powers of any Minister are limited to the powers conferred on him or her by the legislation which he or she administers. Mr Abbott is not the first senior Parliamentarian in my experience who does not seem to understand that, but thinks “I’m the boss, everyone has to do what I say”.