Damien Kingsbury is right when he warns that Australia may breach the Refugee Convention if it returns the 83 Sri Lankan asylum seekers to Indonesia, given that Indonesia appears determined to deport them directly to their homeland. However Damien is wrong to say that sending the Sri Lankans back to Indonesia would be “the first time that Australia has returned asylum seekers already in Australian territorial waters to the country from which they last came.”
This is what happened in late 2001, in the wake of the Tampa affair. During Operation Relex, the navy’s mission was to “deter and deny” – that is, to deter SIEVs (suspected illegal entry vessels), from entering Australian waters, and failing that, to physically deny them entry. If both these measures failed, then the navy had orders to repair and resupply the boats, so that they could be towed back out to sea and sent back in the direction of Indonesia.
This was made explicit in the updated orders issued to the navy following the debacle with the kids not-overboard boat (also known as SIEV 4). As Rear Admiral Geoffrey Smith told the Senate inquiry into a certain maritime incident: “With SIEV 5, we received new instructions which were to, where possible, intercept, board and return the vessel to Indonesia.”
In the end, four boats carrying more than 500 people in total were intercepted by the Australian navy and returned to Indonesia in this way (SIEVs 5, 5, 7, 11 and 12). I know of at least one Iraqi family that remains living in limbo in Indonesia more than five years later. There was also the case of the Minasa Bone (also known as SIEV 14) which landed on Melville Island on 4 November 2003, carrying 14 Kurds from Turkey. The boat and its passengers were promptly returned to Indonesia. While the Kurds may not have been asylum seekers (they certainly never got the chance to put in an asylum claim in Australia and later said in interviews in Indonesia that they had been promised work in Australia), it is nevertheless clear from their case that the processes for returning boat people to Indonesia are well established.
As Foreign Minister Downer said at the time, the return of the Minasa Bone to Indonesia was “a very good illustration of how effective international cooperation between Australia and our neighbours … has become over the last two years.” Jakarta and Canberra did not need the recently signed Lombok Treaty to cooperate on returning boat people, asylum seekers or otherwise, to Indonesia.