The legal and operational framework for forcing asylum seekers into lifeboats and towing them back to Indonesia has become a little clearer, despite the government’s secrecy efforts.
While the Coalition and sections of the media were last week vilifying Labor Senator Stephen Conroy for pointing out the government’s use of the military to hide information, thanks to his efforts the legal and operational framework for forcing asylum seekers into boats to be towed back to Indonesia became just a little clearer.
A key element of the framework was put in place on December 19 last year, when Chief of the Defence Force David Hurley issued a direction under the Work Health and Safety Act 2011 that excluded personnel involved in Operation Sovereign Borders from sections 28, 29 and 39 of the act. Fairfax and The Guardian spotted it and reported it in early January, and its importance to the effort to tow back asylum seeker boats has only become clearer since then.
Sections 28 and 29 require workers to take reasonable care their own health and safety and that of other persons in a workplace. The effect of Hurley’s direction was to ensure Operation Sovereign Borders personnel did not face the risk of criminal prosecution under the act if they failed to do so. Section 39 relates to preserving sites (i.e. evidence) where a workplace injury has occurred. That, too, has been voided in Operation Sovereign Borders. Hurley was up front about the reason for the direction:
“Commonwealth officials and agents of the Commonwealth will be required to operate in a hazardous, uncertain and high-tempo operational environment, having to board vessels, and control and potentially transfer unco-operative persons.”
“In such circumstances, despite best efforts, it may not always be possible to comply with” the requirements of the act, Hurley said.
But the determination is unusual in that Australian personnel engaged until recently in Afghanistan, or currently involved in operations against Somali pirates, require no such exemption. There is a determination dating from 2012 exempting personnel in “warlike and non-warlike operations” relating to reporting incidents and preserving sites, as well as some workplace processes like electing OH&S reps. There are also cover-all exemptions in the act relating to national security and defence. But Operation Sovereign Borders personnel are the only ones specifically exempted from the requirement to take reasonable care of others. As Hurley confirmed to Conroy last week in estimates, not even our frontline troops have such an exemption. Only those engaged in turning back unarmed people in wooden boats don’t have to exercise reasonable care.
Significantly, however, Hurley’s December declaration noted that “Commonwealth officials and agents of the Commonwealth will be appropriately trained, equipped and directed to carry out the above activities in accordance with the objective of the Act so far as possible”.
Conroy quizzed Hurley about that training but encountered a wall of silence. All that Hurley and Chief of Navy Vice-Admiral Ray Griggs would say was that the training “reflected the scope of the operation”. “If I talk about the type of training,” Griggs told Conroy, “I will be going to on-water matters and the techniques and procedures that may be used on water.”
So, like a metastasising cancer, the “on-water” secrecy of Operation Sovereign Borders now extends off the water and into anything that might be “used on water”, even training. Hurley explained that information about training was what he called “friendly information” that would be “likely to be sought by adversary intelligence elements”. Releasing it, Hurley explained, was inconsistent with “the information requirements across the battle space”.
A First World navy encountering civilians in wooden boats is now called “the battle space”.
That reference sits somewhat uncomfortably with General Angus Campbell’s evidence the previous day that Operation Sovereign Borders was not a military operation and that he was not acting in a military capacity when co-ordinating it.
But we do know the navy’s training didn’t include the safe use of lifeboats. Conroy pursued that issue with the Australian Maritime Safety Authority, which admitted that it had only provided advice on search and rescue to Operation Sovereign Borders, and not on safety equipment. But AMSA officials revealed that the orange lifeboats used to return asylum seekers to Indonesia by Customs hadn’t been inspected or certified by the authority, nor had AMSA made any effort to check whether Customs vessels had the davits necessary to safely launch the lifeboats (committee chairman Bill Heffernan suggested they would be “chucked overboard”).
AMSA officers, clearly rattled that they might have said too much for the government’s liking about the lifeboats, kept insisting they had no concerns about any lifeboats, “which are part of a ship’s lifesaving appliance regime”, but that doesn’t include the lifeboats used to send asylum seekers back to Indonesia.
The evasion, casuistry and outright refusal of officials to allow any aspect of OSB to be scrutinised, no matter how far removed from “on-water operations”, is a new low in Australian government transparency. And it’s best summed up by the absurd moment when Conroy played a YouTube video filmed with a phone of a lifeboat being towed back to Indonesia and asked Defence officials to explain what was happening, given the Prime Minister had explicitly said there was no tow-back policy. They all refused to comment. Fairfax’s Michael Bachelard this week reported personnel now take phones off asylum seekers before sending them back, perhaps utilising that training they have had since December.
“I would not have a clue,” Defence Secretary Dennis Richardson told Conroy about the video. “I am not going to comment on what is on YouTube. We are not going to get involved.”