"Stopping the boats" in international waters

Based on my understanding of the United Nations Convention on the Law of the Sea (UNCLOS) and the International Convention for the Safety of life at Sea (SOLAS), it occurs to me that there is a couple of responses that the master of an asylum seeker vessel might make upon being intercepted by a Royal Australian Navy or Customs vessel and ordered to head back to Indonesia:

“I understand what you are saying captain about your wish for me to reverse my course but I should make it clear to you that I am exercising my right to freedom of navigation under Article 87 of the UN Convention of the Law of the Sea which I believe Australia and Indonesia have ratified. Furthermore, if you believe I am not in international waters but in the Australian contiguous zone then my passengers exercise their right to claim asylum in Australia.”

Or:-

“I regret to inform you captain that my vessel is unseaworthy and as such I am unable to reverse my course. I therefore intend to proceed to the nearest safe haven. In so doing I exercise my right of Master’s Discretion under Chapter V Regulation 34-1 of SOLAS.”

I wonder what the commanders of Royal Australian Navy and Customs vessels are instructed or expected to do upon receiving either of those responses.

Russell Ward by Adhi Hendranto

Going through some old papers a couple of nights ago I came across the 1967 edition of The Martlet, the magazine produced annually by the students of Wright College, the first men’s college at the University of New England and my happy home (not far) away from home 1961-65.

Inside I found this little gem: a sketch of Australian historian Russell Ward (“The Australian Legend”), by Indonesian student Adhi Hendranto. This brought back a number of memories. Russell was my “moral tutor” throughout my time at UNE; this somewhat quaint term deriving from the Oxbridge tradition meant that he was responsible for my pastoral care, the person I could go to if there was anything I wanted to discuss. Russell used to have his dozen or so charges for biscuits and cheese and a pre-dinner sherry once a term, after which we would go off together to formal dinner in Wright College Dining Hall.

In my last couple of years in Wright College, Russell was also my Resident Fellow in Beta Block, living in quarters just around the corner from my room, Beta 2.

As for the artist, Adhi was my next door neighbour for a year or two, so this sketch of Russell by Adhi was a nice find.

Australia21 needs your help

Australia 21 is a not-for-profit organisation which brings together diverse thinkers to develop ideas for Australia’s future, on policy areas ranging from climate change to drug law reform to euthanasia. Australia21 only tackles 'wicked problems'. These are complex problems that defy definition, resist all usual attempts to solve them, hardly ever sit conveniently within the responsibility of one organisation, and attempted solutions are thwarted by unforeseen consequences.

We have exciting plans for the future. But these plans are now at risk due to a lack of funding. So we would like to tell you a little bit about us and seek your help.

We believe that Australia 21 is uniquely placed to think about policy issues facing Australia in a way which goes beyond the populist consensus of the major political parties.

* What other organisation could bring together a former federal police commissioner, addiction specialists and former premiers to agree publicly that the war on drugs has failed and get them in the same room to discuss alternatives?

* What other organisation could gather palliative care workers, doctors, lawyers, former politicians and students to develop ideas about how we could regulate euthanasia in Australia, while also including opponents of euthanasia in the discussion?

We want to keep the conversation going – but we need your help. As well as plans for further developing the discussion on these valuable topics, Australia 21 is commencing a project about asylum seekers and a project about inequality in Australia, timely projects which are needed now more than ever.

If you believe in the work we do, if you have ever considered donating money to Australia 21, we would like to stress in the strongest possible terms that now is the time to do it.

Donations will be gratefully received at http://www.givenow.com.au/australia21

A Soviet-era joke for our times

For some reason the Tony Abbott’s moves to abolish the three climate change agencies brings back to mind a Soviet-era joke which runs something like this:

Lenin, Stalin, Khrushchev and Brezhnev are travelling together across the Soviet steppes on a train. The train breaks down in the middle of nowhere and comes to a shuddering halt.

Lenin declares, “I shall go up to the front of the train and make a fiery speech urging the drivers on in the name of the Revolution”.

Stalin waves his hand dismissively and says, “No, that will never work. I shall go up to the front of the train and have the drivers shot for their crimes against the state, and we will get new drivers”.

Khrushchev says, “No, we don’t do that anymore. I shall go up to the front of the train and tell the drivers they had better get the problem fixed or we will send them to a labour camp”.

Brezhnev says, “Why don’t we just pull down the blinds – then we won’t know whether the train is moving or not”.

UNE campus, 1950s

The two photos below were taken by my father in the late 1950s – probably about 1957. They are scans of 35 mm Kodachrome transparencies.

It felt very much like a university in those days. Students wore undergraduate gowns to all lectures and tutorials, except for laboratory classes. Classes were small, senior staff took tutorials as well as giving lectures, and staff and students knew each other. The university was fully residential, and in the colleges that were built from 1956 on we dined formally four nights a week, again in academic dress, with the Master and Fellows processing in and taking their places on the high table. The university had become autonomous in 1954 and was making its own independent way. There was a lot of optimism about its future, a feeling that staff and students were building something worthwhile.

The image below was taken in the forecourt on the northern side of Booloominbah. It must be third term, with the annual exams approaching. Of the beautiful grounds around Booloominbah it used to be said in relation to exam time, “When the wisteria starts to bloom it is time to make your run; when the roses bloom it is too late”.

This second image shows students passing through the main gate of Booloominbah in the direction of the Booth Block, the first permanent building to be added to the estate donated by the White family. Named after Edgar Booth, the first Warden of the New England University College, it served initially as the Science Block. In my time there in the early 1960s it was mainly mathematics and, from 1964, the first computer centre, in the days when computers were mainframes and there was one to serve all of the university’s research and administrative needs.

Border protection under Tony Abbott

Guest post by Tony Kevin

We will see under the Abbott Government a tougher philosophy and administration of Australia's policing of its northern maritime borders against unauthorised boat people. It cannot be assumed numbers of arrivals will quickly fall to zero, though they are already trending downwards since Kevin Rudd announced in July that all irregular maritime arrivals will be processed in PNG or Nauru and resettled offshore.

The Coalition pledged during the campaign to maintain that policy, and to augment it with new tough measures of deterrence at the borders.

In our northern maritime approaches, the new Government faces three policy challenges: to maintain maritime border protection and rescue-at-sea systems that are transparent and publicly accountable; to restore clarity to an Australian maritime rescue response system whose understanding of its responsibilities has been clouded by the pressures of the past four years; and to try to turn boats back to Indonesia without loss of life at sea.

There has been some public discussion of the third challenge, which is essentially operational. But the first and second are even more important, because they go to the heart of Australian values as a successful multicultural country of immigration that respects human rights.

One of Labor's humanitarian achievements was to establish a system of routine media releases announcing every boat interception and every incident of assistance to boats in difficulty at sea. The public thus had access to reasonably prompt and accurate numbers of arrivals and deaths at sea. Major fatal incidents at sea were reported in ministerial media briefings. They have been subject to routine internal Customs and Border Protection departmental reviews. There have, commendably, been four public coronial inquests.

It would be tragic if under Operation Sovereign Borders, as foreshadowed by Scott Morrison, the present degree of public transparency and accountability for deaths in border protection operations were to be abandoned on the spurious pretext (as happened under Operation Relex in 2001) that these are matters of national security that cannot be disclosed. It was a lesson from Operation Relex that any attempt to hide border security operations in which unacceptable risks were taken with human life, or in which deaths at sea occurred, will inevitably leak out. A civilised country should not fear submitting its border protection practices and outcomes to regular public reporting.

The second challenge is equally important. In the last four years, while up to 50,000 boat people have safely reached Australia, around 1100 people have died at sea in 30 known incidents. Many of those deaths were preventable, had Australian rescue-at-sea responses to observed or reported distress-at-sea situations been more prompt and diligent, in accordance with our Rescue at Sea Convention obligations and decent maritime practice.

Australia's rescue-at-sea values became degraded since 2009 under pressure of increasing numbers of boat people, as they were degraded during Operation Relex. In recent years, the Australian Maritime Safety Authority came to see asylum seekers venturing out in unseaworthy boats as people who exploited an international rescue-at-sea system designed for 'genuine' mariners in distress.

Even now, despite significant criticism from the Perth Coroner of response shortcomings in the most recent inquest (SIEV 358), this agency has not conceded that its role is to coordinate prompt rescue of every mariner in distress. It still acts at times as if it were a border protection policeman. The agency has become desensitised to asylum seeker deaths at sea. This must change.

On turnbacks or towbacks, the risks of deaths at sea are well known to the ADF from its 2001 experience. As the Navy understands, protecting human life at sea must always come first. Possibly, a firm but humane administration of attempted turnback operations will prevent deaths of people who are under desperate stress but are not at war with Australia.

ADF ships' commanders must never be given reckless operating instructions or be micro-managed from shore, as happened in 2001 with SIEV 4, the 'children overboard' boat. They must know that their careers will not be blighted if they put their safety-of-life-at sea obligations first in any attempted turnback situations, even at the cost of some annoyance or embarrassment to ministers. And the ADF high command must back them.

Tony Kevin served as an Australian diplomat for 30 years 1968-98, serving in posts including the Soviet Union, UN New York, and lastly as ambassador in Poland and Cambodia. His most recent book is Reluctant Rescuers (2012). His previous publication on refugee boat tragedy — A Certain Maritime Incident — was the recipient of a NSW Premier's literary award in 2005.

The original of this article was published in Eureka Street on 10 September 2013. It may be viewed at Border protection transparency under Abbott.