Tow-back plan would open up a legal minefield

IN the wake of the recent heightened debate over how Australia should respond to the apparent surge in boat arrivals from Indonesia, the Coalition continues to insist "turning back the boats" is a key plank of its policy.

While this statement is often qualified by "when safe to do so", Tony Abbott's suggestion last week that a Coalition government would order the navy to take fuel from asylum-seeker boats has introduced a further dimension to the proposal.

The Coalition insists its policy echoes the Howard government's approach when, following the 2001 Tampa incident, Operation Relex was implemented alongside the Pacific Solution. The high seas interception of boats carrying asylum-seekers headed for Australia and towing them back towards Indonesia was part of that policy. Abbott insists it was a success, even though very few boats were actually towed back to Indonesian waters. Yet as Alexander Downer, the then foreign minister, has since admitted, Australia's tow-back policy was undertaken sotto voce, with little legal or public scrutiny. The most influential people in Sport

That is an important point as at no time were so-called tow backs subject to judicial review by Australian courts. The legal landscape has changed and if a tow-back policy were implemented it would face legal hurdles.

First, it is doubtful whether under present Australian law such tow backs would be lawful. While the Customs and immigration acts give Australian officials including the navy extensive authority over boats that have entered Australian waters, that authority diminishes if control is exercised to take those boats to a place other than Australia.

The Migration Act allows asylum-seekers to be taken to another place but, as the government discovered when attempting to implement its Malaysia Solution, that requires a ministerial declaration to be issued which can be subject to judicial review by the High Court. This would be the case especially if the place to which people were to be returned was the high seas.

Implementation of a tow-back policy inevitably would open the door to legal challenge and, in the wake of the High Court's Malaysia Solution decision, refugee advocates would likely explore every opportunity to challenge such a policy. In 2001 John Howard did face a legal challenge in the immediate wake of the Tampa and the government prevailed. However, doubt has since been cast on aspects of that Federal Court decision, which in any event dealt with very different facts to those that would arise in a tow-back case. While an Abbott government could always seek to pass new legislation confirming a tow-back power, whether such new laws would pass a Senate in which the Greens held the balance of power is doubtful.

Second, such a policy would be contrary to international law, a point the European Court of Human Rights affirmed earlier this year in the Hirsi case when it found against an Italian policy of intercepting migrant boats in the Mediterranean and returning them to Libya.

Boats carrying asylum-seekers may be legally interdicted within Australia's territorial sea and as far out as the 24-mile contiguous zone, after which they can be escorted or towed to an Australian port. Beyond those limits, within the Australian 200 nautical mile exclusive economic zone, such boats can be brought to Australia if a request for assistance has been made.

These are the circumstances on which the vast majority of boats intercepted by the navy now make landfall at Christmas Island. However, to seek to tow the boats from any of these zones back on to the high seas, or to the Indonesian exclusive economic zone, well exceeds Australia's legal rights under the 1982 UN Convention on the Law of the Sea. It also would expose Australia to acting in breach of the Safety of Life at Sea Convention and other maritime conventions.

Nearly all of the boats carrying asylum-seekers are unseaworthy under Australian law, manned by unqualified crew, carrying more than what would be a permissible legal number of passengers and have inadequate navigational aids. If these boats are towed back and had their fuel confiscated, then once abandoned by the navy they would be at the mercy of the sea.

A final political hurdle for Abbott's policy is that the Indonesian government does not support it. Of course, that could change if the Coalition formed government. It may be possible to develop a viable bilateral approach but even then Australia could be assured of the viability of such a policy only if there were an actual handover of the boats to the Indonesian authorities at sea so they could safely escort the boats back to an Indonesian port.

Donald R. Rothwell is professor of international law at the Australian National University College of Law.