Published daily by the Lowy Institute

Can the navy 'turn back the boats'?

Can the navy 'turn back the boats'?
Published 8 Feb 2013 

Hugh Simpson is a strategic risk management consultant and former naval officer. During his 11 years in the navy, Hugh spent over three years working on border protection.

Shadow immigration spokesman Scott Morrison this week indicated a return to Howard era immigration policies, specifically involving 'forcibly repelling' suspected refugee vessels from arriving in Australia while in international waters.

Disappointingly, both sides of politics are proposing impractical and legally ambiguous policies, but the Coalition's policies are especially troubling as the Royal Australian Navy becomes a pawn in this increasingly dangerous game.

Greens Senator Sarah Hanson-Young stated this week that any returns would be in clear breach of international laws such as the Refugee Convention, but that is not the only grey area. Under the UN Convention of the Law of the Sea (UNCLOS) Article 33, Australia has the right to prevent infringement of immigration laws applicable within territorial waters (12 nautical miles) out to an additional 12 nautical miles beyond territorial waters called the contiguous zone.

The boarding of any suspected illegal entry vessel in 'international waters' beyond the 24 nautical mile limit would be a breach of international conventions except in limited cases relating to the prevention of piracy or slavery.

These suspected refugees are desperate to get to Australia, having endured countless days in floating death traps. Vessel sabotage by crew or passengers is a real threat with a turn-back policy, as all would need to be rescued under the Safety of Life at Sea Convention, thereby possibly allowing them to claim refugee status on Australian soil. [fold]

The term 'forcibly repelled' used by Mr Morrison has far reaching implications if lethal or non-lethal force is used during the boarding or subsequent turn-back operation. The navy is highly skilled at conducting maritime interdiction operations and would be more than capable of the task, but is the increased safety risk to our people worth the political gain?

Once the passengers realise they are being returned, the risk of sabotage and acts of violence increase exponentially and the small boarding teams could easily be overwhelmed and forced to use lethal force to protect themselves on small unseaworthy and overcrowded vessels.

And where would you take the Sri Lankan boats back to? Would Indonesia accept them?

Armidale class patrol boats were designed to conduct boarding operations in support of immigration and fishery laws, but it's over 5000km to Sri Lanka from Australia's north west coast; the Armidale class does not have enough fuel to escort the boats back to Sri Lanka, and refueling at sea is not a viable option.

Larger ships such as the ANZAC frigates could possibly reach Sri Lanka, but depending where it started its journey, an ANZAC frigate may require a refueling ship or port visit to complete the operation. Assuming you use a refueling ship, the cost-benefit analysis of such an operation for a Sri Lankan boat carrying 200 people would be prohibitive.

Use of frigates or larger ships continuously on station at Christmas Island would be a drain on finances, excessively disruptive to navy families and take the larger ships away from their core responsibilities. The navy does have the capability to turn back the boats, but it is up to the government of the day to make sure the navy's actions are legal, cost efficient and morally appropriate.

Photo by Flickr user greensambaman.

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