Bad policy: Towing back the boats

Savitri-TaylorDr Savitri Taylor
First published on The Conversation on 12 June.

There is not much bipartisanship in Australian federal politics these days, but the ALP and the Coalition are in agreement on one matter: the boats must be stopped.

They just don’t agree on how to do it.

According to the Coalition, the only way to stop the boats is a complete return to the Howard government’s policy settings. In other words, a return not only to offshore processing, but also to towing back asylum seeker boats to Indonesia and a temporary protection visa regime.

In order to evaluate whether the Coalition’s tow back proposal makes policy sense, we first need to be clear about why we want to stop the boats.

If the reason we want to stop the boats is to spare fellow human beings from suffering and death, deterrence strategies make no policy sense. More than 90% of irregular boat arrivals are refugees. They flee their homes out of necessity and then keep fleeing through country after country which cannot or will not provide effective protection.

As long as the underlying predicaments which prompt perilous sea journeys to Australia persist, all deterrence strategies will achieve is to ensure that we will not have to see asylum seekers suffer and die. They will be forced to do so out of our sight in the course of attempting to flee in directions other than Australia.

If, on the other hand, the reason we want to stop to the boats is simply to uphold the principle – in the words of former prime minister John Howard – that we should be able to “decide who comes to this country and the circumstances in which they come”, deterrence strategies make perfect policy sense.

However, the question still remains whether the particular deterrence strategy of towing back the boats is one which is feasible or desirable to implement.

The Coalition has stated that it will turn back boats only when it is safe to do so, and only in a manner consistent with Australia’s international legal obligations. In light of past experience, safe and lawful turn back seems as achievable as porcine flight.

Between October 2001 and December 2001, four suspected irregular entry vessels (SIEVs 5, 7, 11 and 12) were intercepted at sea by the Australian navy and towed back to the edge of Indonesian territorial waters. In at least three of these cases, the navy had to contend with incidents such as asylum seekers jumping overboard, threatening self-harm, and/or attempting to sabotage the vessel. SIEV 7, which had 230 people aboard including women and children, ended up running aground in Indonesian waters a few hours after being abandoned by the navy. Three lives were reportedly lost.

The Australian navy also attempted to turn back three other vessels (SIEVs 4, 6 and 10) in 2001. All sank at some point during the course of interception and tow back towards Indonesia. The passengers who were successfully rescued (two were not) were transported first to Christmas Island and then to Nauru in some cases PNG in others.

The fifth and final tow back of the Howard government period took place in November 2003. At this point, Indonesia, which had not publicly protested the 2001 tow backs, hardened its stance. A spokesman for the Indonesian foreign minister told the media that Australia had informed Indonesia of its intended course of action but knew that Indonesia had not agreed to it. Indonesia also threatened to deport the 14 Turkish Kurds on board the towed back vessel to Turkey as soon as they made landfall, though in the end it did not carry out this threat.

All public utterances of Indonesian officials since the 2003 incident (and there have been many) have only served to confirm that Indonesia will not tolerate reinstitution by Australia of a tow back strategy. The Coalition’s assertions that it will be able to obtain Indonesia’s cooperation in such an endeavour after it has formed government must, therefore, be treated with some skepticism.

The asylum seeker boats now making their way to Australia are increasingly unseaworthy. The boats are also increasingly overcrowded with women and children constituting a large proportion of those on board.

In these circumstances, it is difficult to conceive of situations in which it would be safe to attempt to tow back boats with the passengers still on board, or safe to leave such passengers to their fate at the edge of Indonesia’s territorial waters. Apart from the risk of death by drowning, the unsanitary and volatile conditions on board such vessels would constitute a serious risk to health and well-being especially of children.

Towing back boats when unsafe to do so would not only be morally reprehensible, it would be a breach of Australia’s obligations under the International Convention for the Safety of Life at Sea. Fortunately, the navy has made it clear that it is not prepared to breach these obligations whatever government policy may be.

The other international obligations which we risk breaching by reinstituting a tow back strategy are our obligations under the UN’s Refugee Convention and other treaties to refrain from sending individuals directly or indirectly to places where they face a real risk of persecution or other serious harm.

The next time an asylum seeker boat is returned to Indonesia without that country’s agreement, it may decide to go beyond threatening to return the asylum seekers to their country of origin and actually do so. Such an action would place us in breach of our international obligations in respect of those asylum seekers.

The last – but by no means the least – consideration is the damage which we will cause to our ability to implement a wider suite of prevention, deterrence and protection strategies, if we implement a tow back strategy without Indonesia’s agreement. Doing so will put at risk Indonesia’s continued and crucial cooperation in a great many other bilateral endeavours including those designed to improve the situation of asylum seekers and refugees in Indonesia.

Doing so will also put at risk the gains, including refugee protection gains, which we have made through the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime. Other countries in the region will realise that when we talk about regional cooperation, we really only mean that they should cooperate to solve our problems.

 

Dr Savitri Taylor is Associate Professor at the La Trobe Law School

Find an expert

Search our experts database.