By Adam Fletcher

2012, it occurred to me today, marks a full decade since I began studying, writing about and (after graduation) giving legal advice on Australia’s international obligations in respect of asylum-seekers and refugees.

The more things change in this area, the more they stay the same. The war in Afghanistan is still not over, although it seems to be running out of steam. Wars in Iraq and Sri Lanka have raged in the mean time, causing huge numbers of people to flee to neighbouring countries, and smaller (but significant) numbers to flee to safe havens in the West including Australia.

Back in 2002, the hot subject for legal dissection was the Howard Government’s novel approach to the MV Tampa, a Norwegian cargo ship which rescued asylum-seekers from a sinking boat the previous year and was subsequently refused permission to land in Australia. When the Tampa tried to set the asylum-seekers down on Christmas Island, the Government sent in the SAS. From that point until the change to a Labor Government in 2007, it became official policy to prevent boats carrying asylum-seekers from landing in Australia – by force if necessary.

Now, Howard’s successor Tony Abbott says he would ensure it is a ‘core policy’ of a future Coalition Government to have the Navy turn back the boats, just as Howard did. When the former head of the Australian Defence Force (and Navy) Admiral Barrie expressed doubts about the wisdom of this, Abbott responded “The navy has done it safely before, there’s no reason why they can’t do it safely again.”

Safety is a key concept in this debate. Intercepting and towing back the boats carrying asylum‑seekers from Indonesia clearly puts lives at risk – in fact as David Marr pointed out on Monday, this policy did actually lead to deaths last time it was implemented, because boats sank and the last-minute rescue operations were very difficult. This raises issues not only under the UN Convention on the Law of the Sea but also under the International Covenant on Civil and Political Rights, which obliges the Government to respect and ‘ensure to all individuals’ the right to life – even when its officials (such as Navy personnel) are operating outside Australian territory.

Is turning back the boats legal? Regarding the Tampa incident, the Federal Court decided that it was in 2001, at least under Australian law. The Norwegian Government saw it differently, preferring to focus on international obligations.

Regarding the tow-back policy generally, the Navy had serious concerns about compliance with the Law of the Sea. Under this international regime (which is critical to modern international navigation), States parties are forbidden from hampering innocent passage of vessels through their waters, preventing vessels in distress from seeking shelter and refusing entry to vessels carrying people rescued at sea. The disquiet navy personnel felt in being asked to carry out the Howard Government’s orders is made plain in subsequent official (public) documents.

Refugee law experts condemned ‘turn-back’ policies as undermining the 1951 Convention on the Status of Refugees, since the international asylum system could not function if nations refused to accept asylum-seekers and process their claims.

Knowingly instituting a policy which puts lives at risk – even if there are caveats about where it can be done ‘safely’ – would be inconsistent with Australia’s obligations under all of these treaties.

Indonesian authorities have called the practice “inhumane and dangerous” and have said they would not cooperate with it. If the Australian Government claims it can legally refuse permission for boats carrying asylum‑seekers to land, how can it possibly deny that Indonesia has the same authority? If anything, the Indonesian Government would be on slightly firmer legal ground since it is not party to the Refugees Convention.

The Australian’s headline in reference to Tony Abbott’s policy announcement on the weekend was Radical Coalition Plan Will Force Indonesia to Share the Burden on Asylum‑Seekers. Abbott was reported as saying that Australia would no longer ‘passively accept’ the arrival of boats. Yet Indonesia already plays host to thousands of asylum‑seekers. It has put in place significant measures (admittedly with Australian assistance) to combat the people smuggling trade, and is co-hosting the Bali Process which aims to find a regional solution to people smuggling. Even if Mr Abbott’s policy were able to be implemented despite the many practical obstacles, it would simply shift the burden from Australia to a country which has a GDP smaller than Australia’s yet has to budget for a population ten times the size. That sounds more like shirking than sharing.

Tony Abbott has also consistently said the Labor Government’s Malaysia Arrangement is unacceptable because Malaysia is not party to the Refugees Convention and treats asylum‑seekers poorly. Indonesia is not a party either, and has had its fair share of issues [warning, graphic images] when it comes to the treatment of asylum‑seekers. Poor conditions appear to be a ‘non‑core’ concern for Abbott, to be wheeled out when opposing ALP policy but promptly jettisoned when formulating the Coalition’s own policy. Having written to the Government just last month that ‘consistency matters in our public life,’ Mr Abbott should heed his own advice.

Understandably, the Navy has expressed alarm at the resurrection of this policy, which means it would once again be put in the very uncomfortable position of having to tow vessels of dubious seaworthiness, and potentially rescue and detain desperate asylum‑seekers who scuttle their boats, while the politics play out. There is even an open question of criminal liability if loss of life results from the towing procedures, not to mention the immediate physical risks to Navy personnel. In short, it would be a return to the bad old days of late 2001, which is a dispiriting prospect for someone who has been advocating better adherence to our international obligations ever since.