11.30pm: I was just about to leave when Law lecturer Simon Evans sent this memo on the Border Protection Bill, introduced into Parliament tonight. He’s also sent it to politicians. First his legal opinion, then yet more of your reaction – with the balance starting to shift a little.
I attach for your information my short analysis of the Border Protection Bill introduced into Parliament today. It’s a shocking piece of legislation and ought not be passed, quite irrespective of the current situation.
To peruse the bill, go to www.aph.gov.au/legis.htm and click on Current Bills (by title).
M E M O R A N D U M
From: Dr Simon Evans, Faculty of Law, University of Melbourne
Date: 29 August 2001
Subject: Border Protection Bill 2001
To: Politicians and Webdiary, sent tonight.
The Border Protection Bill 2001 (the Bill) was introduced into the Parliament on 29 August 2001 by the Minister for Immigration and Ethnic Affairs. It is expressed to be:
A Bill for an Act to provide for the removal of ships from the territorial sea of Australia, and for related purposes.
This memorandum sets out my serious concerns about the drafting of the Bill. I hope they can be taken into account in the Parliamentary proceedings on the Bill.
The provisions of the Bill
1.1: Direction that ship be removed from Australian territorial sea
The Bill’s key provision is s 4 which provides in part:
(1) An officer may, in his or her absolute discretion, direct the master or other person in charge of a ship that is within the outer limits of the territorial sea of Australia to take the ship, and any person on board the ship, outside the territorial sea.
‘Officer’ is defined by section 3 to mean a person:
who is authorised (whether orally or in writing) for the purposes of this Act by the Prime Minister or the Minister, and is one of the following:
(a) the Secretary, or an employee, of the Department;
(b) a person who is an officer for the purposes of the Customs Act 1901;
(c) a member of the Australian Federal Police or of the police force of a State or an internal Territory;
(d) a member of the police force of an external Territory;
(e) a member of the Australian Defence Force.
1.2: Enforcement and use of force
Section 5 provides for the enforcement of directions made under s 4 and authorises an officer to:
detain the ship, and take it, or cause it to be taken, outside the territorial sea of Australia. For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.
Section 6 also authorises an officer or a person assisting an officer to use reasonable force to return a person to the ship if they have left it.
1.3 Exclusion of review and exclusion of liability
Section 4(2) provides purports to prevent the courts from reviewing a direction given under s 4(1).
Section 7 purports to prevent proceedings (civil or criminal) being taken against the Commonwealth in relation to action taken to enforce a direction made under s 4.
It also purports to prevent proceedings being taken against officers and any person who assists an officer to enforce a direction made under s 4 provided only that the officer or person acts in good faith.
Section 8 purports to prevent proceedings being taken to prevent removal of a ship from the Australian territorial sea once a direction is made under s 4.
1.4: No applications for protection visas
Section 9 prevents a person who is on board a ship at the time when a direction is given under s 4 in respect of the ship from making an application for a protection visa.
1.5: Commencement and retrospectivity
If passed the Act will be taken to have commenced on 29 August 2001 at 9.00 am (Australian Capital Territory time): s 2.
Section 11 operates to validate retrospectively any direction of the kind contemplated by s 4 that is given after that time and before the Act is assented to, provided that:
the Prime Minister or the Minister authorised a person described in any of the paragraphs of the definition of officer in section 3 to give a direction of the kind described in section 4 (however that authorisation was expressed).
2: My concerns about the Bill
2.1: The Bill authorises the use of force: a vigilant approach is required
Once an officer makes a direction under s 4 requiring that a ship be taken outside the Australian Territorial sea that officer and others are authorised to use reasonable force to enforce that direction. The officer and others are also authorised to use reasonable force to return a person to the ship if they leave it after the direction is given.
Any legislation that authorises the use of force against individuals ought to be scrutinised carefully to ensure that its provisions do not go further than is necessary to pursue the legitimate objectives of the legislation.
This Bill goes too far and should be amended before it is passed.
2.2 Ministerial authorisation should be limited in time and place
The Prime Minister or Minister may authorise any one of large number of people ‘for the purposes of the Act’. Once authorised that person is an ‘officer’ and has an ‘absolute’, unreviewable discretion to give a direction under s 4.
The Prime Minister or Minister need not limit the authorisation to a particular period of time or to a particular vessel. A standing authorisation is possible under the Bill.
This is inappropriate, particularly given the limits on review of a direction made by an officer once he or she has been authorised by the Prime Minister or Minister.
The Prime Minister or Minister ought to be required by the legislation to limit authorisations in time and place, to table authorisations in the Parliament and to maintain a register of all active authorisations. Absent such a requirement there is limited facility for holding the Executive accountable for the exercise of the coercive powers under the Act.
2.3: Ministerial authorisation should be in writing
The Prime Minister or Minister may authorise a person for the purposes of the Act ‘orally or in writing’.
Oral authorisation should not be possible. There ought to be a formal record of these decisions for the reasons outlined immediately above.
2:4 Officer’s discretion should be confined
An officer’s discretion to make a direction under s 4 is unconfined. This is inappropriate.
The discretion conferred is ‘absolute’. It can be exercised in any circumstances, for any reason or no reason. Once exercised it provides a justification for the use of force and immunity for the consequences of using force.
There are no preconditions to the exercise of the discretion (for example, an established defence or quarantine risk).
No standards are provided by reference to which the discretion is to be exercised. For example:
– the officer is not required to consider whether the ship is seaworthy and can safely be taken outside Australian territorial waters;
– the officer is not required to consider whether any persons on the ship are in need of medical or other assistance;
– indeed the officer is not required to consider whether the ship is an Australian ship and the people on the ship are Australian citizens: under s 4 the officer can direct that such a ship with such a crew leave the Australian Territorial sea.
The statement of the Act’s purpose (‘to provide for the removal of ships from the territorial sea of Australia, and for related purposes’) does not provide any useful guidance.
Such an unconfined discretion may be appropriate at the highest levels of policy formation. But it is inappropriate when it can be conferred (for example) on any employee of the Department or any member of the Australian Defence Force. It is particularly inappropriate given the consequences of the discretion and when no reason is apparent for not identifying preconditions and standards for the exercise of the discretion.
The discretion should be conditioned on the existence of some need to remove the ship from the Australian Territorial sea; and the Act should provide standards by which it is to be exercised.
Incidentally, amending the Bill in this way before it is enacted would assist in removing doubts about its constitutional validity.
2.5: Officer’s discretion should be reviewable
An officer’s discretion to make a direction under s 4 cannot be ‘called into question, or challenged, in any proceedings in any court in Australia’.
This prevents all judicial review of the officer’s decision to make a direction under s 4, unless the officer acts in bad faith.
It cannot be the case that every instance calling for the exercise of this discretion is so urgent, sensitive or involves issues of national security such that judicial review is inappropriate.
Provision should be made for judicial review of officer’s decisions under s 4 except in situations where that is clearly inappropriate.
2.6: Proceedings should be available to prevent removal of the ship if the discretion is inappropriately exercised
It follows from the comments immediately proceeding that s 8 is inappropriate and should be removed.
2.7: Reasonable steps should be required to ensure that the master of the ship understands the direction
A direction under s 4 is given effectively even if:
there was no master on board the ship to receive the direction; or
the master did not receive or understand the direction.
Given that the making of a direction authorises the use of reasonable force to enforce that direction, the officer giving the direction ought to be required to take reasonable steps to ensure that the master receives and understands the direction.
2.8: The persons who can assist the officer to enforce the direction ought to be specified
A direction under s 4 can be enforced using reasonable force by the officer or another person: s 5. Similarly a person can be returned to the ship by the officer or another person: s 6.
The Act does not restrict who that other person is: it need not be a person who is capable of being authorised as an officer for the purposes of the Act.
That category of person – which includes members of State, Federal and internal and external Territory police forces – ought to be wide enough to provide persons capable of assisting an officer to enforce a direction under s 4.
The need to authorise any wider category of person to use force ought to be clearly demonstrated before it is allowed.
Moreover ‘another person’ ought have the power to use force (and immunity from liability for that use of force) unless they are acting at the request of the officer and assisting him or her to carry out his or her powers and functions under ss 5 and 6. (Section 6 hints at such a requirement: ‘An officer, or a person assisting an officer, may return to a ship a person who … ‘. The requirement ought to be more direct and ought to be present also in s 5.)
2.9 The Act ought to comply with Australia’s international obligations under the Refugees Convention
I have not had an opportunity to determine fully whether s 9 complies with Australia’s obligations under the Refugees Convention; at first sight it appears doubtful that s 9 does comply. No doubt others will provide commentary on this issue.
The Bill if enacted would confer an absolute unreviewable discretion on potentially junior officers, without providing standards for its exercise, and authorise the use of force with only the most minimal safeguards.
The Bill ought not be passed in its current form. I urge Members and Senators to consider these matters most seriously.
Gjert Myrestrand, 27 years old, Stavanger, Norway
Hello in Sydney.
I would like to make the following statement on your message board “Australians and Norwegians speak out”:
There is a human tragedy under development in the sea off Australia. The captain of the Norwegian ship is put in an impossible situation, having to make “life and death” decisions because nobody wants his “problem”.
Australia and Norway are among the wealthiest nations on the planet, and I have a hard time believing what’s happening. This is not a case of granting asylum, but of saving human lives.
I understand that Australia needs to control the influx of refugees, but do not let this fact lead to people dying on the high seas.
If a Norwegian government had refused to help people in severe distress, I’m one hundred percent sure that this government would have had to resign within days.
I urge the Australian government to allow the vessel to call at an Australian port. Save the lives of those poor people first, then deal with the political implications.
Australia has a nice reputation worldwide in humanitarian affairs, but this reputation is being more and more tainted every minute the “Tampa” is refused to enter Australian waters.
If Australia wanted to make a political statement about asylum seekers, you have succeeded long ago.
Now, save lives.”
I am not a fan of John Howard, but if he does not cave in on this matter he will rise rapidly in my view.
The ship’s captain should have immediately proceeded to Indonesia. If he allowed his command to be usurped by people wishing to make him their pawn and take over the direction of his vessel that is his and Norway’s problem.
John Howard is showing strong leadership in sticking to the principles of law.
When I first moved to Norway I used to miss Australia a lot. The sun, the surf, the cheap beer.
After a while I found things in Norway to replace them, the mountains, the snow, the beautiful women. I stopped thinking about Australia so much.
The events of the last few days have appalled me as an Australian (still) and I realise now why I left the country and more importantly why I stopped missing it. Bigotry, racism, sexism, idolatry of sport (if the Afghans could play rugger or cricket this wouldn’t be a problem) and of course “little Johnny”.
What a prick! It pains me to say it but I am ashamed of my country. So the best thing to do would be to let them land, get them healthy and send them to Norway. It is a better place to live. And please, please, please, don’t vote for the liberals.
I’m an expatriate Australian who works in Japan. When I left Australia, Bob Hawke was still PM. Generally speaking, I am not in favor of our government locking up people who are legitimate refugees. Furthermore, after reading the SMH over the last couple of years, I don’t think much of Howard’s policy of locking up children. It doesn’t do much for our international image.
With regard to the current issue, however, I think that the Liberals have made the right decision. These people who get in clapped out vessels and set sail to Christmas Island or the mainland and expect to be welcomed with open arms have to be dissuaded where possible. Failure to do so will just invite more of them to make the journey.
Bhautik Jitendra Joshi
I live in Sydney but at the moment I’m working in Copenhagen at a university full of people from across Europe and the world. The situation is a sad, sad reflection of Australia’s poor position as an international citizen and seems to serve only to highlight how far the country has to go in terms of international relations.
Granted, yes, as a percentage there are a large number of refugees arriving compared to the size of the population; however most of these people take a hazardous journey across land and water to get to Australia.
In Europe, the distances are far less and the numbers far greater; the numbers of refugees entering Australia simply pales in comparison to the numbers travelling across all of Europe.
An Italian friend of mine was appalled at the reaction of the Australian government; his country processes tens of thousands of refugees every year.
Every Scandinavian I know here who has commented on the ugly affair has had nothing positive to say about the Australian reaction, and see it as an abuse of the good intentions and faith of maritime law.
The media here paints a sympathetic picture of the refugees, and most people feel that the government has over-reacted and put lives at risk.
There are indications in the press that the Indonesian government has to shoulder part of the blame, but the lack of compassion and inhumanity is shown to have come from the Australian government – specifically John Howard. They have been labelled reactionaries and racists, and compared to the lunatic DPP party in Denmark, led by the P. Hanson-esqe Pia Kjaersgaard.
This may not be the truth, but overseas, perception in the popular press is everything.
If Australia wants to become an international citizen, it better start to shoulder all of the responsibilities that come with it, rather than selectively supporting issues that carry political gain.
This whole incident doing very little for the international position of the country.
Who cares what Norway thinks, it’s not a Norwegian problem.
These people claim to be refugees seeking a safe haven. But first they entered Malaysia, where presumably they were safe enough. From Malaysia they entered Indonesia, and then travelled the full length of Indonesia.
Presumably they were also safe enough in Indonesia. From Indonesia they set sail for Australia. Why? Weren’t they safe enough in Indonesia or Malaysia? Why didn’t they seek sanctuary in Malaysia or Indonesia? Perhaps the majority of Australians are right, maybe these people are just economic refugees, trying to jump the legitimate refugee queue into Australia?
The Prime Minister and the Government are pursuing the correct course.
Beazley is just confirming what we always suspected, he really is just a sanctimonious windbag without the ticker to become Prime Minister.
Disclosure: I’m currently studying Government, Business & Society at the Queensland University of Technology.
Below is a email I just sent to Natasha Stott Despoja.:-
Thank you for not passing the Border Protection Bill 2001. You will be receiving my senate vote in November. All I can say is thank god for the Senate.
If the federal government was set up like Queensland, with no house of review, imagine the situation that Australia would be in.
Once again, thank you for bringing a voice of saneness to the debate.
I honestly can’t understand what the problem is.
They are terrorists.
Let them land. Take them into custody and send them back to Afghanistan.
As for the vessel: it should be seized and sold off to recover some of the costs which have resulted from the Captain’s failure to obey international law.
K. Ogland, Oslo, Norway
I’m Norwegian who has lived in the Asia Pacific region for years, but have recently returned to Norway. I can only join in with my countrymen in their disbelief over the Australian behavior in this matter.
How can Australia ask for help to rescue 438 refugees in their own waters, and then refuse to accept the ship afterwards?
How can you put not only the refugees lives at risk, but the Norwegian crew’s as well? The Tampa and her crew have done nothing but to assist and save lives.
Norway has accepted thousands and thousands of refugees over the years. Just recently more than 5000 Kosovo Albanians were airlifted into Norway. Our country has always been generous in that respect. It’s time that Australia show some responsibility too.
I just can’t understand that a you’ll put your well respected reputation in jeopardy like this. The whole world is watching, and I can assure you, it looks ugly!
The newest batch of asylum seekers are fleeing a country where a repressive regime reigns over a poverty-stricken, cowed people in a country which has been engulfed in a tribalist-fuelled civil war for over 20 years.
The kind of refugee program Margo Kingston seems to advocate would quite rapidly see such conditions duplicated here in Australia.
I am not Norwegian, nor am I Australian. I am Indian and have lived in Sydney for over two years and am now in New York. Coming to NY brought home to me the casual, almost flippant Aussie attitude to racism. That is what this Tampa business is about. I wonder how long it would take the Howard government to give citizenship to a boat load of South African white ‘refugees’?