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

By Tony Kevin

Wednesday June 24, 2015

When I wrote and published Reluctant Rescuers in April 2012, literally hundreds of asylum-seeking boat people were regularly drowning in waters adjacent to Australia, as a result of second-class and often way too late search-and-rescue procedures by Australian Border Protection Command and the Australian Maritime Safety Authority.

Terrible things kept happening to our fellow human beings on Australia’s maritime border watch over a period of five years 2009-2013. The system was not learning from past tragedies: on the contrary, values and procedures were becoming entrenched and justified that were making similar future tragedies more likely.

The system was in denial as to its responsibility for these hundreds of deaths. It was looking for scapegoats everywhere but at its own doors: in reckless people smugglers and their paying passengers, in the ineffectual Indonesian maritime search and rescue organisation, in Indonesian police and defence agencies, even in Australian refugee advocacy.

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.

“We now live in a new, more efficient, Australian border protection environment … this work will not readily be undone.”

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.

“I expected there to be deaths at sea during turn-backs, and possible hostile confrontations with Indonesia … I was wrong.”

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.

“OSB does not need the cruel camps to do its job.”

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

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Marilyn Shepherd
Marilyn Shepherd
5 years ago

So again you are applauding criminal behaviour because it means we no longer have to break other laws. Seriously? And how do you know people are not being drowned? This article literally makes me want to vomit.

tony kevin
tony kevin
5 years ago

I hope The Mandarin’s correspondence columns can do better than this one prejudiced rant from a well known keyboard warrior? I wrote a serious policy proposal and would welcome serious comments on it.

Pamela Curr
Pamela Curr
5 years ago

Tony Kevin has nailed Labor failure which resulted in so many deaths. We all knew that “RESCUE SLOWLY AS A LAST RESORT” was the unspoken mantra. This is a shocking legacy.
The current cruelty is Liberal building on top of Labors harsh policy. No one is denying the rapes and sexual abuse of women and children in the offshore camps. It causes not a ripple in Government circles.
As for the EXPERT PANEL legacy of 31,000 people frozen in the community- most still without work rights in spite of Morrison promises to cross bench senators- another Pandoras box opened by Labor.
Neither Government or Opposition or previous Government emerge from this horrendous history of cruelty with any integrity.
I think a ROYAL COMMISSION of broad reaching investigation is necessary to undo the damage of nearly 30 years.
Labor made promises last time- remember the Ministerial Statement by Senator Evans- a decent man who got no support from the Cabinet and who walked away before he had too much blood on his hands.
I think the time for deals and promises is over.
As for stopping the boats, we need to look at the Italian Operation Mare Nostrum but of more importance is providing Resettlement from Indonesia. Time for Australia to grow up and stop this infantile nonsense that we can pick and choose refugees based on their location and our political convenience. In a world awash with people on the run, time for Australia to muscle up and reach out a helping hand. We bring in 200,000 backpackers on 417 visas to work and play every year plus an unknown number of 457 visa folk to work – it is time we extended this to those who really need a safe haven.

Andrea Callaghan
Andrea Callaghan
5 years ago

Kevin, Your argument is well put. But we have no idea how many have died at sea since OSB came about. My guess is there are plenty still dying at sea – we just don t know about them. And what of those stuck for years in the detention centres in Indonesia. Or languishing in Indonesia with no way home or no way out of there. Their torment is also part of the mess Australia has made. Further – there is NO MORAL ARGUMENT for going along with the whole premise of OSB. We are not being swamped by asylum seekers. Per capita the numbers are very low. We are not doing any “heavy lifting” in a world with now 55 million people seeking refuge. Asylum seekers do nothing wrong in coming here by boat, with or without papers. And there is no other ways for them to seek asylum. And of course, historically – 90% are found to be genuinely fleeing for their lives. Their desperation is evident by their risky boat trip here. You know all this – so why are you supportive of any of these appalling, disgusting and morally repugnant illegal acts by the current Government and the previous one. That the ALP gave the go slow signal to search and rescue efforts, leading to hundreds of deaths at sea is the issue. Contrast it with the effort to save one Caucasian sailor lost at sea. You know better than I of the horror of those who died and those who survived the sinkings. Adrift at sea with dead bodies all around them. I have heard of the navy ships being present for 8 hours whilst people drown around a survivor who lived to tell the tale. All this could be avoided with more humane policies. Why side with the rank, divisive, racists policies that got us where we are. The means are a part of the end. Always. And coming to the more personal stuff – I fear your ego is getting in the way here. Notice how many of your sentences start with I. And when referring to a co-authored book you say I and then her name. Do you self reflect? I ve seen your comments on threads before. The activists and advocates who visit those in onshore detention attest to the horror of those places also. We must aim for the principled and the moral way to treat people at all times. Not bow to pragmatism in politics when in refugee policy it is all based on racism. Imagine if the refugees coming by boat were white skinned Christians. We would not treat them this way! It is all about blatant racism and the efforts to dehumanise them has been successful.

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