What is occurring in the seas north and west of Australia? We have no way of knowing

The following remarks by Senior Research Fellow Madeline Gleeson were delivered on 7 July 2021 at the virtual panel discussion, ‘Human Rights Impact of Pushbacks of Migrants’, launching the report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, to the Human Rights Council at its 47th session. The panelists discussed the “means to address the human rights impact of pushbacks of migrants on land and at sea”.  

I join you today from the lands of the Gadigal and Bidjigal people in Australia, and pay my respects to their elders – past, present and emerging. 

I commend the Special Rapporteur for this excellent, timely and important report. 

May marked six years since the Andaman Sea crisis, when as many as 8,000 Rohingya and Bangladeshis were left stranded at sea after people smugglers abandoned their boats and neighbouring countries refused disembarkation. Malaysia, Thailand, and Indonesia were accused of ‘playing a three-way game of human ping-pong’ with these people, who included – in one case – almost 1,000 men, women and children packed onto a 30-metre-long trawler and left to starve.

Despite a series of international meetings and new commitments in the wake of this crisis, the region proved willing to do no better in 2020, when we again saw boats with the same groups of people, in the same waters, being pushed back from the same countries, this time under the guise of COVID19 precautions. 

Earlier this year, a boat carrying 81 Rohingya refugees – 23 of whom were children – and a further 8 people who had died on board, was intercepted by the Indian coastguard, who provided supplies and repaired the boat but refused to allow disembarkation. That was in February. The boat washed ashore in a remote part of Indonesia in June, having drifted for more than 100 days at sea. 

The Asian region must do better and relies on external partners to support it in doing so. 

Bangladesh hosts the world’s largest refugee camp and should be commended for not closing its border or pushing back the almost a million Rohingya who have fled into its territory from Myanmar in successive waves in recent years. But with the military coup in Myanmar in February of this year, durable solutions are even further out of reach, not just for the Rohingya but for others displaced into Thailand. The scale of this crisis should make it one of global concern. 

The most effective way to prevent pushbacks is to remove the conditions which drive people onto boats in the first place, which means doing more to ensure the safety and well-being of displaced people in Asia, and providing them with the conditions to live productive, fulfilling lives for as long as they must remain outside their countries of origin, with themselves at the heart of this process. 

Turning to the Australian context, and the practice of maritime interception, in particular, the Special Rapporteur rightly notes in his report that Australia has turned or taken back more than 800 people – including children – on 38 vessels under Operation Sovereign Borders, a military-led border security operation launched in 2013.

‘Turn backs’ involve returning vessels to their place of departure, notably Indonesia. 

‘Take backs’ involve taking passengers into Australian custody then handing them over directly to the authorities of the place from which they departed, with that handover occurring either at sea – for example from Australian to Sri Lankan vessels – or by Australia bringing people here then flying them back to China, Vietnam, etc.

In relation to turnbacks, the Special Rapporteur notes that people have been turned back to Indonesia on their own vessels or transferred onto lifeboats or wooden fishing boats purchased by Australia. What we should be asking is how exactly Australia is convincing people to go back. 

As Warshan Shire reminds us, ‘no one puts their children in a boat unless the water is safer than the land’. The majority of the people who get on boats to Australia are out of options and highly motivated to reach their destination. We know that in the past people have resorted to desperate measures to avoid being returned, including actions that put at risk their lives, as well as the lives of others on board and the Australian officers tasked with intercepting them.

So what measures of coercion are being deployed against them by Australian officers to convince them to simply turn around and go back to Indonesia?

We have seen reports that Australian officials paid smugglers to take people back – which, if true, would appear to involve serious breaches of both Australian and international law.

But what else is occurring in the seas north and west of Australia? Are people being drugged? Chained up? Subjected to cruel, inhuman and degrading treatment to ensure compliance? Set adrift with only enough fuel to reach Indonesia, so that their choice is return or death?

We have no way of knowing, because a key feature of Operation Sovereign Borders is its militant secrecy. Government reporting is patchy and opaque. National security is invoked to justify classification of all information relating to so-called ‘on-water matters’, yet the blanket secrecy goes well beyond what might be expected as necessary to ensure the integrity of the operation. Even Parliament is prevented from knowing what is happening at sea, there is no effective independent oversight, and anyone who works in the system and speaks about what they know could face two years imprisonment, even if they are disclosing gross violations of human rights and breaches of law. This goes much further than the criminalisation elsewhere of assisting and harbouring migrants, which is detailed in the Special Rapporteur’s report. 

Australian pushbacks also involve flagrant risks of violating the fundamental principle of non-refoulement, particularly when no screening at all occurs, and when people are handed back over directly to the authorities of the country from which they fled. Despite the government’s claims that people are only returned where it is ‘safe’ to do so, and that no one returned engages Australia’s protection obligations, the truth of the matter is that people are pushed back without proper consideration of their individual circumstances. 

Historically, between 70 and 100 per cent of asylum seekers arriving in Australia by boat have been found to be refugees. It is thus implausible that not a single person intercepted since 2014 has engaged Australia’s protection obligations. In fact, we know that people have been taken back to their countries of origin, only to flee again and be recognised as refugees elsewhere. 

Full, fair, and individualised asylum assessments are almost impossible to conduct at sea, particularly where those assessments occur entirely in secret, outside any legislative framework, and without procedural fairness or independent monitoring. 

Unfortunately, having found a way to drastically reduce the number of people trying to reach Australia by boat, Australia is unlikely to unwind this policy for the foreseeable future. Pushbacks are here to stay in Australia, at least for now.

So immediate efforts may be best directed at finding ways to bring this practice as much into line with international law as possible.

Two points these efforts could target are the extraordinary degree of secrecy around pushbacks, which cannot be maintained in a liberal democracy, and the need for effective independent oversight of what is happening at sea. I fully endorse the Special Rapporteur’s recommendations in this regard.

Then of course, as always, the focus must be on creating alternative safe and legal pathways to protection and expanding the protection space in the region, to remove the need for anyone to risk their life on a dangerous sea journey in the first place.

Thank you.