Tony Kevin: a new look at the boat people policy challenge

In my judgement, the basic reason for all the deaths was systemic and cultural. Australian agencies had the technology to find and track unseaworthy boats trying to reach Christmas Island from nearby Java. But our national rescue responses were, all too often, too little and too late. As a result, hundreds of people drowned on Kevin Rudd’s and Julia Gillard’s watches, in repeated avoidable tragedies.

The sorry record is referenced and sourced fully in Marg Hutton’s advocacy and archival website www.sievx.com. I will not reference the information from that site in detail here: it is all there for interested readers.

The two worst of these incidents — too late to be reported and analysed in Reluctant Rescuers – were, firstly,  the sinking with around 100 dead of SIEV358 in July 2012, which led to a searching and ultimately revelatory inquest in Perth in June-July 2013. This inquest exposed real rescue negligence by BPC and AMSA.

Secondly, the disappearance of an unnamed drifting SIEV from an observed overflown location just 26 miles from Christmas Island in June 2013. An interception boat was not sent out for 12 hours, by which time the SIEV had disappeared. No bodies or wreckage were ever recovered, though floating bodies and a semi-submerged hull were later seen from the air three days later.

In both cases, rescue negligence — refusal to recognise the danger and act on it until it was too late — were as nakedly in evidence as in the earlier cases fully analysed in Reluctant Rescuers of the Christmas Island shipwreck in December 2010 and the Barokah foundering in 2011.

My and Marg Hutton’s forensic analysis based on public sources and our public activism on these tragedies, both before and after publication of Reluctant Rescuers, led eventually to a sharp public denunciation of me on ABC National Radio by Michael Pezzullo, then head of the Australian Customs and Border Protection Service.

‘Sugar off the table’

Pezzullo had the good grace subsequently to invite me in to a private meeting in his office with him and his deputy Roman Quaedvlieg, followed by a special tour of the BPC classified operations room conducted by the then BPC commander.

I was impressed by the sophisticated and highly accurate technical resources and human skills available in BPC HQ to identify and track maritime movements in great detail in Australia’s maritime approaches, as far out as Indonesia. I was struck by the high level of morale, competence and sense of professional mission in BPC HQ: a service ethos that Pezzullo is now inculcating in his new larger area of permanent secretary responsibility, the Department of Immigration and Border Protection, which is effectively becoming a powerful US-style Department of Homeland Security in all but name. Quaedvlieg has been named as first Commissioner of the new Australian Border Force, to come into full operation on 1 July 2015. It is, effectively, the permanent successor to Operation Sovereign Borders (OSB).

We now live in a new, more efficient, Australian border protection environment than in 2009-2013, thanks to change-makers like Scott Morrison, Michael Pezzullo and Roman Quaedvlieg. This work will not readily be undone.

With the change of government in late 2013, Scott Morrison advised by people like Pezzullo and retired ADF general Jim Molan immediately set in place a radically new philosophy and practice of maritime border protection operations. No longer would BPC and AMSA try to observe the letter of domestic and international law in their maritime interception and rescue operations of asylum-seeker boats reporting or observed to be in distress in the Indonesia — Christmas Island sea gap. No longer would Australian border protection (as distinct from maritime rescue) interceptions be left till the last moment when boats entered Australian waters.

Morrison’s team concluded that Labor’s concept of operations was simply unachievable. They concluded it was impossible to deter unseaworthy overcrowded boats from attempting the 200 mile crossing from Java to Christmas Island while observing the laws of freedom of the high seas and maritime jurisdictions, maritime rescue at sea obligations, and UN refugee conventions. Something had to give.

They concluded that Labor’s efforts to deter voyages (by “taking the sugar off the table”, in the Indonesian President’s words), while maintaining Australia’s reputation as a law-abiding international citizen, were simply unachievable. Conflicting policy objectives generating systemic ambiguity and confusion had led to tragedies like the four events noted above, with hundreds of deaths and destructive effects on the morale and work ethic of Australian agencies involved.

It was clear to Morrison’s advisers that under Labor, BPC and AMSA had fallen into a de facto work ethic of disdain for asylum seekers and second-class rescue practice when their boats were possibly or probably in trouble. The philosophy of “we won’t rescue you till we absolutely have to, and only after we have given you a good punitive scare” was leading inevitably to mistaken assessments and consequent deaths. In the end, BPC was even declining to retrieve bodies from the water in international waters, lest this might lead to legal requirements for embarrassing inquests. Thus, there was never any public inquiry into the June 2013 sinking near Christmas Island.

The system was sliding into systemic derogation of duty. Something had to be done — a radically new protocol of maritime border protection had to be found.

Prevention as cure

Operation Sovereign Borders was that new model. Its core elements were: absolute secrecy and deniability of on-water operations, to protect the government from embarrassment; earliest possible interception on the high seas of boats judged to be heading towards Australia with asylum-seeker passenger loads; firm pushback or tow-back or bribe-back from international waters to the edge of Indonesian territorial waters. If necessary, if intercepted boats were found to be unseaworthy, OSB was empowered and resourced to move passengers back to the edge of Indonesian waters and to give them alternative one-use boats with just enough fuel for them safely to get back to Indonesian land.

The primary objectives were simply: no on-water deaths, and no forced acceptance of asylum seekers into Australian custody. Operational commanders were given to understand that Canberra would turn blind eyes to whatever had to be done to achieve these objectives — Tony Abbott’s recent words, “whatever it takes”, and “by hook or by crook”, sum up what the government now expects of its OSB agencies.

I expected the new model to fail, and am so on public record. I expected there to be deaths at sea during turn-backs, and possible hostile confrontations with the Indonesian Navy or police. I was wrong. Apart from some early admitted trespasses of OSB ships into Indonesian waters, no doubt under the policy imperative of protecting lives of people forced to return to Indonesia, there have been no serious Indonesian reactions. The OSB model of operations has not in practice been challenged, and it continues to meet its key policy objectives.

I surmise — I have not attempted to find out — that the OSB model is popular with the men and women in agencies charged with implementing it. I surmise they were unhappy under the conflicting and confused objectives of Labor’s previous protocols of rejecting rescue appeals and delaying rescues; trying to pass the buck to an uninterested Indonesia; having to fish dead bodies out of the water; and knowing that those people you did rescue, including women and children, were all destined for the no-escape hellholes of Nauru and Manus.

I know what I would rather be doing, if I were an Australian serviceman on border protection duties.

So under OSB, Australia is systemically breaking international law and getting away with it. Lives are not being lost at sea in Australia’s area of border protection operations. And people are not newly being sent to indefinitely extended penal servitude in cruel offshore prisons. OSB, by making up its own rules, is protecting the borders from unwanted intrusion by maritime asylum seekers, in ways more respectful of human rights than the previous Labor model.

The challenge now for Labor as the alternative government in waiting is to come up with a new package of policies that reflects the new realities created by the Coalition’s successful OSB model,  but is at the same time more humane and more in accordance with good ethical values. This is an area where Labor urgently needs to establish credible policy difference from the present government in ways that are attractive to the general electorate.

I don’t think Labor can or should try to go back to the moral confusion and tragedy of the years 2009-2013. When senior AMSA officials charged with rescue at sea explained under oath to coroners how their agencies interpreted clear appeals for rescue at sea as “the usual refugee patter”, things were seriously adrift in Australia both morally and operationally.

Labor cannot as a decent party connive in the present ongoing systemic, and now entirely unnecessary, cruelties and gross human rights abuses of the offshore detention camps. No amount of improved Australian monitoring will ever be sufficient: this model is broken.

Close the camps

The unfortunate 1650-odd people incarcerated in Manus and Nauru are a legacy of the previous policy decisions of Rudd and Gillard, policy settings that have been rendered no longer necessary because of the success of the current OSB model.

Does anyone seriously think that removal of that legacy caseload of 1650 people, after all that they have suffered in the camps in the past few years without prospect of release, will overwhelm OSB? Of course not.

If OSB is left to get on with its present job unhindered, it will continue to deter and repel boat people voyages. It was thus a grave policy mistake of Labor in recent weeks to go after the issue of reported OSB bribeback payments. It achieved nothing, and put at risk what OSB has achieved. Fortunately Bill Shorten pulled back from this line of criticism.

OSB does not need the cruel camps to do its job. They could be closed down tomorrow and the legacy offshore caseload rehoused in properly managed humane Australian detention centres or in community detention in Australia as appropriate, for proper and timely processing of refugee claims.

This is a one-off legacy human rights problem created by Rudd and Gillard and maintained since 2013 by Abbott.  All parties (including the Greens also) should see the merit of resolving it now, and not trying to use the plight of the 1650 people indefinitely locked up in the camps to score cheap political points off other parties.

Over a short time, the removal of the moral cancer of these camps would lighten the burden decent Australians supporting all parties now feel, and allow our nation to start to rebuild its international standing now so grievously damaged. We could begin practical dialogues in the UN and with regional neighbours on ways to address contemporary global refugee problems.

As long as the Nauru and Manus detention camps exist, Australia has no moral standing or influence in that international dialogue: nor should we have.

I am calling here for radical new thinking by all parties, based on a realistic separation of the different elements of the current boat people policy problem, and a patient step-by-step approach to resolving those elements one by one. A consensus to close the camps, while maintaining OSB for the present as it stands, is the essential first step by all concerned.

Tony Kevin’s most recent book Reluctant Rescuers is available online at www.reluctantrescuers.com.

Read more at The Mandarin: Pezzullo inspired by powerful post-war mandarins for Immigration’s new way