Attending a forum on Operation Sovereign Borders last night at ANU, I was struck by just how poor the quality of debate is in regards to asylum policy in Australia.
Donald Rothwell is perhaps Australia’s foremost expert on the Law of the Sea. In the style only an academic lawyer could pull off, he carefully examined the different elements of Operation Sovereign Borders and then sat on the fence in regard to key outcomes. He concluded with five points:
1. There is a firm legal basis under the Law of the Sea for Australia to interdict asylum vessels.
2. There is a firm legal basis to exercise control of vessels in Australia’s 12 mile and 24 mile boundaries.
3. Maintaining continuing control over vessels which are taken outside Australian territory is limited.
4. Australia has no legal basis in exclusive Indonesian waters (12 miles) and Indonesia has a strong legal basis has to object to such activity.
5. The transfer of asylum seekers to lifeboats raises issues of the legality of transfer, the safety of the vessel and in particular any state responsibility in the case of incident to the lifeboat.
(Note: these are not direct quotes – he talks quickly – but attempts summarise his position to my best ability. I am more than happy to edit if I have misrepresented his summary)
I found his talk helpful in clearly establishing important considerations, particularly relating to the first two points and the legal arguments around different zones.
However, I inferred he had grave concerns regarding the legality and operation of towing lifeboats after interdiction. Let me make it clear, he did not say OSB was illegal in regard to the Law of the Sea. Rothwell repeatedly said that given we do not know the operational detail of exactly what occurs, it is impossible to cast judgement. He was using public information like everyone else.
But… his carefully chosen words seemed to me to mask significant concern about the policy implications of OSB and the Law of the Sea. If this is true, his inability to provide clear responses to whether this aspect of OSB was in breach of the Law of the Sea is disturbing for broader public debate in on this policy.
“The Law” in general is complex for most people without legal training. I think of myself as well versed in how legislation operations given my background in the public service however I’m consistently at a loss when it comes to the details regarding legal practice.
When we add in the scope of international law, the complex becomes the impossible. There is very little case law relative to other law and international law is highly contested by nations who generally seek not the path of righteousness but the path of national interest. Trying to understand these issues as a lay person is actually impossible.
Yet in Australia, our foremost expert in this area is unwilling to provide clear answers on whether he thinks OSB breaches the Law of the Sea because he didn’t have the details. I’m no lawyer, but personally the existence of video footage of tow-backs occurring combined with the fact these orange lifeboats end up on Indonesian land is excellent evidence as to key operational matters. Further, he is never going to get the details. This risk-adverse, conservative approach to public discourse leaves Australia poorer to understanding policy considerations of OSB.
In complex public policy debates we need experts to guide and steer the discussion for the general public. Asylum policy is one of the most important public discussions and has been for the past 13 years. When we are left without a government providing information and without experts willing to go outside strict legalese arguments, it is no wonder we have a debate which circles endlessly and a public which seeks ever harsher measures against asylum seekers, regardless of consequences.
The charge – whether the Abbott government is breaking the Law of the Sea via policy decisions – cannot be verified. However leading public experts can and should do more to inform public discussion.