Australia's Endeavours in Maritime Enforcement

korean journal of international and comparative law 6 (2018) 219–244 brill.com/kjic

Australia’s Endeavours in Maritime Enforcement Securing Vast and Vital Oceans

James Wraith Researcher, Global Challenges Program – Sustaining Coastal and Marine Zones, University of Wollongong, New South Wales, Australia [email protected]

Clive Schofield Head of Research, Global Ocean Institute, World Maritime University (wmu), Sweden; Visiting Professor, Australian National Centre for Ocean Resources and Security (ancors), University of Wollongong, Australia; Co-Editor-in-Chief, Asia-Pacific Journal of Ocean Law and Policy (apjolp) [email protected]

Abstract

Australia is deeply connected to the ocean. A uniquely large island nation with a long coastline and few close neighbours, Australia benefits from an immense maritime domain, the third largest in the world. However, with relatively few maritime enforcement resources and an extreme dependence on sea bourne trade, maritime enforcement Australia faces an extremely difficult task in monitoring and ensuring compliance with national laws throughout its maritime jurisdiction. We highlight current threats to Australia’s marine environment including protection of natural resources, piracy, terrorism and illegal arrivals, and examine Australia’s capabilities, legislation and approach to combating these risks. Essential to Australia’s strategy is collaboration across domestic civil and defence agencies, use of innovative approaches and technologies, and regional and international partnerships through creative agreements and treaties.

Keywords maritime enforcement – Law of the Sea – Australia – fisheries – jurisdiction – domain – border protection

1 Introduction

As the Australian national anthem highlights, the country is “girt by sea” and is a profoundly oceanic nation, culturally and economically dependent on the marine environment. As a geographically large island State with a long coastline and few proximate neighbours, Australia boasts a vast maritime domain including one of the largest exclusive economic zones (eezs) in the world.1 The advantage and opportunity provided by this immense marine jurisdiction is access to numerous resources derived from the ocean bed and the water col- umn, and the benefits stemming from increasingly diverse marine activities. Additionally, the Australian economy is fundamentally reliant on seaborne trade. Accordingly, Australia has a substantial and growing blue economy that contributes billions of dollars to the national economy. Safeguarding maritime Australia, its precious and vulnerable marine environment, and thus the opportunities and the benefits gained from Australia’s immense maritime spaces are not without cost. The marine environment and the resources within Australia’s maritime jurisdiction are subject to criminal activity with national and international implications, which the State must protect and counter. This is no mean feat given the great scope of Australia’s maritime jurisdiction and for a country with a relatively small population of less than 25 million people. In light of these challenges, Australia’s approach to maritime security and particularly to providing for maritime surveillance and enforcement throughout its extensive maritime jurisdiction has required the development of innovative approaches, strategically, operationally, institution- ally and legally. This chapter outlines the extent and importance of maritime Australia and details its evolving approach to maritime security including the acquisition of advanced capabilities. Key maritime security threats are described and how these have been addressed are detailed.

2 Maritime Australia

At nearly 60,000 kilometres in length, Australia has the third longest coastline in the world.2 This coastline provides the baselines from which Australia, in

1 Australia has the third largest Exclusive Economic Zone (eez) in the world after the U.S. and France. 2 Total estimated coastline length: 59,736km (35,877 km mainland, 23,859 km islands). Source: Geoscience Australia, available at http://www.ga.gov.au/scientific-topics/national -location-information/dimensions/border-lengths.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 221 keeping with the United Nations Convention on the Law of the Sea (losc),3 claims the full suite of zones of maritime jurisdiction.4 As a result, Australia possesses a maritime domain that is substantially larger in area than its continental landmass (see Figure 1).5 Australia, therefore, possesses and benefits from a vast geographical domain including a large mainland and a number of remote offshore territories6 that span tropical to polar climatic zones, border- ing onto the Pacific, Southern and Indian Oceans as well as the Timor, Tasman and Coral Seas. Over 85 per cent of the population live within 50 kilometres of the coast as the people of Australia look to the ocean for food security, environmental benefits, cultural, amenity and recreation and a strong and growing blue economy. In 2013–14, the ocean contributed over $50 billion to Australia’s economy7; and it is anticipated that this number will climb upward of $100 billion per annum by 2025.8 Marine industries in Australia create approximately 400,000 full time jobs in areas such as shipping and trade, ship manufacturing and renewable energy.9 In particular, Australia benefits greatly and is fundamentally dependent on shipping. Indeed, Australia ranks as the fifth largest nation when com- paring the weight of and distance travelled by its cargo.10 Australian goods and

3 United Nations Convention on the Law of the Sea (losc), opened for signature 10 Decem- ber 1982, 1833 United Nations Treaty Series (unts) 3, entered into force 16 November 1994. 4 Australia proclaimed a 200 nm Australian Fishing Zone (afz) in November 1979 Pursu- ant to Fisheries Act 1952 (Cth), s 4 as amended by Fisheries Amendment Act 1978 (Cth) s 3 since replaced by Fisheries Management Act 1991 (Cth); Australia ratified losc on 5 October 1994 and claims a 12 nm territorial sea (restricted to 3 nm around certain islands in the Torres Strait), a 24 nm contiguous zone, a 200 nm eez, and a continental shelf beyond 200 nm, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ STATEFILES/AUS.htm). 5 Australia’s maximum potential maritime jurisdiction including its external territories (excluding the Australian Antarctic Territory) has been calculated to be 11.39 million km2 (inclusive of 2.56 million km2 of extended continental shelf seaward of the 200 nautical mile eez limit) as compared to a total land area of Australia and its external territories of 7.69 million km2. See, P. Symonds, M. Alcock and C. French, Setting Australia’s Limits, 93 Ausgeo News (2009). 6 Australia’s offshore territories include the Ashmore and Cartier Islands, Australian Antarctic Territory, Christmas Island, Cocos Islands, Coral Sea Islands, Heard and McDonald Islands and Norfolk Island. 7 Australian Institute of Marine Science, The AIMS Index of Marine Industry (2016), at 8. 8 Oceans Policy Science Advisory Group, Marine Nation 2025: Marine Science to Support Australia’s Blue Economy (2013), at 5. 9 Australian Institute of Marine Science, The AIMS Index of Marine Industry (2016), at 18. 10 Australian Border Protection Command, The Guide to Australian Maritime Security Arrangements (2013), at 3.

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figure 1 Australia’s maritime jurisdiction passengers are carried by Australian and foreign vessels within and beyond Aus- tralian waters as 99 per cent of Australian trade (by weight) is shipped by sea.11 Australia faces considerable challenges in terms of providing for adequate maritime surveillance and enforcement with respect to securing its maritime interests both within and beyond areas of national jurisdiction. The benefits gained from maritime and associated industries, especially through seaborne trade, are only possible through safe navigation in national and international waters. Consequently, Australia’s security interests extend well beyond its immediate maritime jurisdiction. However, with a population that ranks 53rd in the world,12 marine management requirements, including maritime security, are supported by relatively limited human resources. Indeed, achieving a

11 S. Bateman, and A. Bergin, Sea Change: Advancing Australia’s Ocean Interests (Australian Strategic Policy Institute, 2009), at 35. 12 See , Countries in the world by population (2018), available at http://www.worldometers .info/world-population/population-by-country/.

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3 Australia’s Strategic Geography

Over the past few decades, the increasing wealth and power of East Asian States has altered Australia’s strategic geography and increased the breadth of its proclaimed maritime security interests.13 During a time of growing prosperity and influence in the East, the fallout of the 2007–2008 Global Financial Crisis (gfc) had less effect on Asia compared to Western nations, including Australia and its most important strategic ally, the United States. The changing geostrategic and economic environment has created new risks, but also fresh opportunities. Shaped by the emergence of political and economic power in the East, and driven by reliance on seaborne trade and hence freedom of navigation, Australia’s changing strategic geography has evolved from what was a regional focus on South East Asia and the Pacific Island Sates to an area that now extends from the Indian Ocean to the Pacific connected by South East Asia and China. Accordingly, following the gfc, the next three Australian Defence White Papers – 2009, 2013 and 2016, expanded Australia’s strategic area of interest from what was described in the 2000 Defence White Paper as the “Asia-Pacific” to the broader area termed the “Indo-Pacific”. Tabled alongside the 2013 Defence White Paper was the Government’s publication Australia in the Asian Century, which highlighted the importance of Australia’s engagement in a growing and increasingly influential Asia. Further, in its, at the time of writing, most recent 2016 Defence White Paper it is noted that Australia and the Indo-Pacific region are in a period of “significant economic transformation, leading to greater opportunities for prosperity and development”. Almost half of global economic output is anticipated to come from that region by 2050, with Australia considered “well-placed” to benefit from these developments.14 Australia’s prosperity, heavily vested in maritime shipping and seaborne trade is fostered through international treaties including free trade agreements (ftas) with a number of countries within Australia’s strategic geographic scope including China, Japan, Malaysia, Singapore and Thailand, and fta nego- tiations are currently underway with India and Indonesia.15 In March 2017,

13 Commonwealth of Australia, 2016 Defence White Paper (2016), at 39. 14 Ibid. , at 14 and 39. 15 See Free trade agreements (ftas), available at http://www.agriculture.gov.au/market -access-trade/fta.

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Australia signed the Comprehensive and Progressive Agreement for Trans- Pacific Partnership (formally the Trans-Pacific Partnership (tpp)), a free trade agreement between 11 nations ranging in economic power. Prior to the United States departure from the tpp agreement in January of 2017, it was estimated to account for 40 percent of global trade.16 Australia’s maritime two-way trade with asean countries alone is worth over $100 billion per year.17

4 Regional Concerns

There is recognition that Australia’s strategic outlook and regional security environment is conditioned by an external relationship between the United States, as the pre-eminent global military power and Australia’s most important strategic partner, and China, as a growing power and Australia’s largest trading partner.18 It is projected that this relationship will be uneven and feature a mixture of “cooperation and competition” dependent on their shared or inimical interests.19 While the likelihood of a military attack on Australian territory is considered remote, Australia’s regional security concerns may be impacted through an erosion in the rules-based global order in the Indo-Pacific as well as because of threats to the stability of neighbouring States.20 From an Australian perspective, a commonly accepted rules-based order, including the peaceful resolution of disputes under international law, is funda- mental to its national security. In particular, this system facilitates international trade through freedom of navigation and overflight and thus the functioning of the global economic system. However, there are indications of concern to Australia that this system is “under increasing pressure” and is showing “signs of fragility.”21 A notable example of this trend relates to maritime spaces to the north of Australia such as the East and South China Seas, which have been identified as “points of friction” in relations between the United States and China and a potential source of rising tensions between them.22 Both of these maritime spaces feature numerous and complex territorial disputes over small

16 Commonwealth of Australia, 2016 Defence White Paper (2016), at 39. 17 Ibid. , at 56. 18 Ibid ., 40 and 41–44. See also A. Holmes, Australia’s economic relationships with China, Parliament of Australia, available at https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/China. 19 Commonwealth of Australia, 2016 Defence White Paper (2016), at 43. 20 Ibid ., 40 and 44. 21 Ibid ., 45. 22 Ibid ., 43.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 225 islands and broad areas of overlapping maritime claims. They are crucially important to Australia in terms of the trade that passes through them with the waters of South East Asia acknowledged as carrying “the great majority of Australia’s international trade.”23 In particular, it has been estimated that US$3.4 trillion in trade passed through the South China Sea in 2016, equating to over 20 per cent of global trade that year,24 while it has also been estimated that 60 per cent of Australia’s exports traverse the same waters.25 Against this backdrop, China rejected the jurisdiction of the Arbitral Tribunal in the case brought against it by the Philippines in 2013 under the dispute resolution mechanisms of losc.26 The challenge posed to the global rules-based order by China’s dismissal of the Tribunal’s Award of 2016 is deeply concerning. Australia is committed to helping maintain the stability and security of States in its “neighbourhood” which is defined as “spanning Papua New Guinea, Timor-Leste and Pacific Island Countries in the South Pacific.” In particular, Australia places high priority on its relationships with its large immediate archipelagic neighbours Papua New Guinea and Indonesia. The same is true of Timor-Leste, where Australia led a military intervention in 199927 under UN auspices following the independence referendum there28 and the violence that erupted thereafter.29 Despite disruptions in the bilateral relationship

23 Ibid ., 57. 24 China Power Team, How much trade transits the South China Sea?, china power, August 2, 2017 (updated October 27, 2017), available at https://chinapower.csis.org/ much-trade-transits-south-china-sea/. 25 P. Hartcher, South China Sea: The tiny islands that could lead to war, the age, June 1, 2015, available at http://www.theage.com.au/comment/south-china-sea-the-tiny-islands-that -could-lead-to-war-20150601-gheecs.html. 26 As both China and the Philippines are parties to losc, the Philippines instituted proceedings against China under Part xv of the Convention, which deals with the settlement of disputes, provides for “compulsory procedures entailing binding decisions”, including arbitration in accordance with procedures contained in Annex vii. See, losc, Part xv and Annex vii. 27 The International Force in East Timor (interfet), deployed under UN auspices from September 1999, put an end to the conflict and established untaet. Australia played the leading role in the intervention, providing over 4,500 Australian Defence Force (adf) personnel to support interfet at the height of its operations, together with over 1,600 deployed in support of untaet. 28 In the referendum which took place on August 30, 1999 and in which almost 99 per cent of the electorate voted, 78 per cent voted in favour of independence rather than autonomy for East Timor within Indonesia. 29 Pro-Indonesian and anti-independence armed militias engaged in an orchestrated cam- paign of violence and destruction, backed by the Indonesian armed forces, in the course of which over 75 per cent of East Timor’s population was displaced and an estimated 70 per cent of East Timor’s physical infrastructure was damaged or destroyed. Approximately

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 226 Wraith and Schofield between Australia and Timor-Leste, primarily caused by disputes over maritime boundary delimitation issues and resource sharing issues in the Timor Sea,30 Australia has maintained a strong commitment to supporting Timor- Leste through aid, security and capacity-building assistance. The conclusion of a treaty delimiting Australia and Timor-Leste’s maritime boundaries in March 2018 represents a positive step with the potential to open a new chapter in bilateral relations.31 That said, at the time of writing, resource sharing issues had yet to be fully resolved due to uncertainties regarding the destination, Australia or Timor-Leste, of the pipeline that would carry gas from the Greater Sunrise complex of fields to shore for processing.32 Australia’s wider neighbourhood has also been a longstanding focus for maritime security cooperation and capacity building, as illustrated by Australia’s support for maritime boundary delimitation efforts among the small island but large ocean States of the South Pacific, the Pacific Patrol Boats program and efforts to assist these States in maritime enforcement capacity (see below). A key consideration in this context has been efforts to bolster the maritime

1,400 Timorese were killed in the course of these events, while around 300,000 people were pushed into West Timor as refugees (see, for example, Central Intelligence Agency (cia), CIA World Factbook, (Washington D.C.: Central Intelligence Agency), available at https://www.cia.gov/library/publications/resources/the-world-factbook/geos/tt.html. 30 Although Australia and Timor-Leste entered into a series of joint development arrangements in the Timor Sea, notably the joint petroleum development area created under the 2002 Timor Sea Treaty and sharing arrangements for the Greater Sunrise complex of fields under the Treaty on Certain Maritime Arrangements in the Timor Sea (cmats) of 2006, the lack of a permanent maritime boundary in the Timor Sea remained a source of friction. A conciliation process instituted under losc delivered a breakthrough on August 30, 2017 whereby agreement was reached on “the central elements” of maritime boundary delimitation between them together with agreement on the establishment of a “Spe- cial Regime” for the Greater Sunrise fields. See, Australia-Timor-Leste, Timor Sea Treaty, Dili, May 20, 2002, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/TREATIES/AUS-TLS2002TST.PDF; Treaty on Certain Maritime Arrangements in the Timor Sea (cmats), signed January 12, 2006, in force February 23, 2007; Permanent Court of Arbitration Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia, Press Release No.9, September 1, 2017, available at www.pca-cpa.org. See also, C. Schofield, Minding the Gap: The Australia – East Timor Treaty on Certain Maritime Arrangements in the Timor Sea, 22 (2) International Journal of Marine and Coastal Law 189–234 (2007). 31 Treaty between Australia and the Democratic Republic of Timor-Leste Establish- ing Their Maritime Boundaries in the Timor Sea, March 6, 2018, available at http:// dfat.gov.au/geo/timor-leste/Documents/treaty-maritime-arrangements-australia-timor -leste.pdf. 32 See , for example, C. Schofield and R. Strating, Timor Gap: A Boundary but Disputes Linger, lowy interpreter, March 7, 2018, available at https://www.lowyinstitute.org/the -interpreter/timor-gap-boundary-yet-disputes-linger.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 227 security and enforcement capacity of potentially fragile neighbours in view of shared maritime security interests such as protecting seaborne trade and countering criminals and terrorists.

5 Advancing Capabilities

Australia’s policies and practice indicate that it is prepared to enforce a stable, rules-based order if, and when, peaceful measures are ineffective. Military missions in regional conflict zones, including the Solomon Islands in 2003 and East Timor in 2006, highlight Australia’s preparedness to deploy its assets in the interest of peace and stability and its commitment to influencing regional policy. As Australia’s willingness to project its posture overseas increases, so must its enforcement capabilities. The Australian Defence Force’s (adf) principle objective is to protect Australia’s sovereignty by deterring and defeating State-led threats. Beyond that, the adf protects national interests by securing the maritime environment within and beyond national jurisdiction. This responsibility includes safeguarding freedom of navigation and safe passage through sea-lanes, which Australia is economically dependent. In the wake of maritime territorial disputes in the South China Sea as well as growing tensions between the United States and both the Democratic People’s Republic of Korea (dprk) and China, the Australian Government announced plans in its 2016 Defence White Paper to raise Defence spending to two per cent of the gross domestic product by 2021. The result will be the largest Defence budget since the Vietnam War. Tabled alongside the Defence White Paper was the Integrated Investment Program that laid out plans for $195 billion in Defence capital investments, including advancing military capabilities in weapons, platforms, infrastructure and technology. Australia’s commitment to increased defence spending is arguably a response to the escalating military capabilities of States within its strategic geography. Historically, Australia has had the sufficient resources necessary to maintain military superiority in the region. However, past administrations devoted proportionally less funding because regional counterparts lacked the technology, often developed by the United States, maintained in Australia. States in Australia’s wider region, especially in East and Southeast Asia, are rapidly acquiring their own technologies and concurrently advancing military capabilities that will challenge Australia’s regional military prowess over the next 20 years and beyond. As a result, by 2030, Australia’s plans to upgrade its Defence capabilities through modernization of assets including

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 228 Wraith and Schofield the procurement of 12 new submarines, 12 surface vessels – three air warfare destroyers and nine anti-submarine frigates, and 24 new naval helicopters.33 Australia is also advancing its intelligence, surveillance and reconnaissance (isr) capabilities with a particular focus on the north of the country. Included in the Defence spending plans are upgrades to the Jindalee Operational Radar Network, upgrades to its commercial space-based capability, fifteen P-8A Poseidon patrol aircraft, and seven high altitude MQ-4C Triton unmanned aircraft. By advancing its isr technology, Australia aims to maximise the impact of its surface and aviation assets by employing a well-informed, risk- based approach. While the adf is responsible and prepared for potential State and non-state incursions, Australia’s civilian agencies maintain enforcement responsibility in relation to non-state threats.

6 The Maritime Border Command

The Maritime Border Command (mbc) is Australia’s leading maritime civil enforcement organisation. It is a multi-agency task force set under the administrative auspices of the Australian Border Force (abf), charged with the responsibility of protecting Australia’s offshore interests. The Command accomplishes this task by coordinating law enforcement activities across agencies to effectively detect, deter, respond to and prevent illegal activities in the Australian Maritime Domain (amd). The amd is immense; the area covers 45.1 million square kilometres, or approximately 12.4 percent of the Earth’s oceans. Its limits extend beyond Australia’s eez (see to Figure 1) and include Australia’s Security Forces Authority Area (sfaa).34 Australia is one of many Security Forces Authority (sfa) organisations within a network that was established by the International Maritime Organization to protect mariners from criminal activities such as piracy and violence at sea.35 The Maritime Border Command is Australia’s designated sfa and maintains the responsibility of coordinating response to maritime security incidents. This arrangement is similar to that of maritime safety response in Australia; the Australian Maritime Safety Authority (amsa) coordinates response to safety incidents at sea within the same area.

33 Commonwealth of Australia, 2016 Defence White Paper (2016), at 90–94. 34 The sfaa is also known as Australia’s Search and Rescue (sar) Region. 35 Australian Border Protection Command, The Guide to Australian Maritime Security Arrangements (2013), at 10.

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The Maritime Border Command achieves maritime law enforcement by employing a multi-agency, whole-of-Government approach. Australia has the administrative and legislative framework that enables cooperative and shared enforcement. The abf, and consequently the mbc, along with the Australian Security Intelligence Organisation (asio) and the Australian Federal Police (afp) fall under the overarching direction of the Department of Home Affairs (dha). The dha, formed in December of 2017, coalesces, amongst other things, federal law enforcement efforts as well as immigration and border- related functions and agencies. Its enactment strengthens the ability of the Maritime Border Command to collaborate with other agencies and facilitate inter-agency cooperation. To this end, the mbc works together with the afp, Australian Fisheries Management Authority (afma), Australian Maritime Safety Authority (amsa), local law enforcement agencies, adf, Department of Agriculture and Water Resources, the national security community, industry and international partners.36 Several key legislative Acts provide the framework to achieve civilian maritime enforcement. Governed by the Australian Border Force Act 2015, which describes the administrative framework for the abf Commissioner and his or her employees, mbc staff includes civilian as well as Australian Defence Force personnel. Enforcement powers delegated to mbc enforcement agents for use in, and in relation to, maritime areas are delivered through the Maritime Powers Act 2013. Innovative features of the Act include delegation of powers to “maritime officers” to give effect to Australian laws and international agreements. Shared responsibility enforcing these powers is enabled because the Act defines a maritime officer as either a member of the Australian Defence Force, a member or special member of the afp, a Customs Officer, or a person ap- pointed by the Minister of Immigration and Border Protection. The Act, moreover, enables abf agents with the authority to exercise statutory powers under several other legislative acts including the Customs Act 1901, the Migration Act 1958, the Maritime Powers Act 2013 and other Commonwealth laws. The Maritime Border Command coordinates maritime response and surveillance activities from its headquarters, the Australian Maritime Security Operations Centre (amsoc), located in Australia’s capital city, Canberra. With a strategic focus on Australia’s northern approaches, regional outposts are tac- tically located in Broome, Cairns, Darwin and Thursday Island. However, the mbc is prepared to coordinate and conduct operations throughout the entirety of the vast Australian Maritime Domain, including the southern waters.

36 See , for example, Commonwealth of Australia, ABF 2020 (2016), at 11.

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The marine environment within Australia’s jurisdiction is highly diverse; from the Coral Sea to the Southern Ocean, water temperatures can range from freezing to 30 degrees Celsius and sea states can be extremely variable on any given day. For example, the average maximum temperature at Heard Island, located 4,100 km (2,214 nautical miles) southwest of Perth, is three degrees Celsius, it snows for 70 percent of the year and wind gusts of 210 km/h and waves of 17 metres have been recorded.37 Similarly, tropical cyclones periodi- cally affect the Australia’s northern waters with equally devastating effects. Further, there is little reprieve in inshore locations as Australian coasts can experience huge tidal fluctuations, especially in far north Queensland and north-west Australia where tides of up to 11.8m have been recorded at Derby in King Sound.38 The mbc looks to its agency partners, including the Australian Defence Force, to assist in the operational requirements of maritime law enforcement. However, as the mbc is the primary agency responsible for these duties, it is prepared to conduct independent operations throughout Australia’s maritime domain. Consequently, the Australian Border Force equips the mbc with a suite of surface vessels. The fleet consists of eight patrol boats, primarily used in the north for countering illegal fishing, drug trafficking and people smuggling, a cutter designated to Australia’s Ashmore Reef National Nature Reserve and Cartier Island Marine Reserve, and a second, larger cutter with sub- Antarctic responsibilities. All of these assets conduct patrols north of 50o lati- tude; however, the armed, ice-strengthened cutter added to the fleet in 2004 to undertake patrols around Heard Island and McDonald Island39 was the final piece needed to enforce compliance throughout the full extent of Australia’s vast maritime jurisdiction. The Australian government plans to increase the size of the Australian Border Force’s surface fleet and strengthen the Maritime Border Command enforcement capabilities. In May 2017, the abf signed contracts for the con- struction of thirteen new vessels.40 The list of new assets includes four 12-meter

37 Customs Service, Heard Island and McDonald Islands and Australia’s Patagonian Tooth- fish Fishery, available at https://www.homeaffairs.gov.au/AustralianBorderForce/ Documents/Heard%20is%20Mcdonald%20Is%20Fact%20Sheet.pdf. 38 Australian Broadcasting Corporation abc, King of all Tides, available at http://www.abc .net.au/science/articles/2002/05/01/2683462.htm. 39 W. Gullett and C. Schofield, Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean, 22(4) Inter- national Journal of Marine and Coastal Law 545–583 (2007) at 557. 40 Minister for Immigration and Border Protection media release, See, for example, available at http://www.minister.border.gov.au/peterdutton/Pages/New-fleet-of-ABF-Port-and -Coastal-Vessels-on-the-way.aspx.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 231 vessels, four 5.4-meter vessels and five 7.3-meter vessels. These additions to the abf fleet will fill a gap in law enforcement capability in coastal waterways, including ports and harbors. They will equip the law enforcement agency with rapid response capability in both nearshore and inshore marine areas. To complement surface fleet patrols, the mbc coordinates and collects aerial surveillance intelligence gathered by aircraft in the skies and satellites in space. Australia developed its maritime surveillance capabilities in the 1980s with the creation of Coastwatch. This agency was introduced in response to several threats that developed during the 1970s including increased illegal fishing, arrival of illegal immigrants by boat from Vietnam and the declaration of Australia’s extended fishing zone. Prior to Coastwatch, multiple agencies with overlapping jurisdictions and responsibilities conducted auton- omous surveillance operations. These organisations independently managed their intelligence, which hindered efficiency and delayed response times. The Australian Government recognized the need for maritime surveillance arrangements under a coordinated agency response framework led by a single institution. The solution was a central body that could coordinate broad area surveillance and response activities. The Australian Border Force collects its maritime surveillance intelligence through a variety of resources, both civil and military. Aerial maritime enforcement surveillance and intelligence gathering is contracted to Surveillance Australia Pty Limited. This practice is cost effective; civilian patrol aircraft do not require the full functionality to serve military applications. The contract, which goes from 2008 through 2020, costs the State approximately $84 million annually in return for 15,000 hours of coverage per year delivered through a fleet of 10 Dash-8 fixed wing aircraft. These aircraft have the capacity to search more than 110,000 square kilometres per flight. Extensively used, the fleet com- pleted 119 million square nautical miles of aerial surveillance patrols during the 2016–17 reporting year.41 Additionally, the abf uses commercial sources to provide satellite imagery. This data is particularly useful in the Southern Ocean, where conditions are remote and hostile. Additionally, the Australian Defence Force provides the Australian Border Force with aerial surveillance coverage. The Royal Australian Air Force (raaf) provides AP-3C Orion patrol aircraft hours in support of abf missions. The raaf will upgrade these capabilities with the acquisition of seven MQ-4C Triton unmanned surveillance aircraft slated to join their fleet. These, along with 12 manned P-8A Poseidons will replace the raaf’s 18 AP-3C Orions and the abf stands to benefit greatly from the upgrade in surveillance capability.

41 Department of Immigration and Border Protection, Annual Report 2016–2017 (2017), at 100.

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Additionally, the Australian Army Regional Forces Surveillance Unit conducts missions and provides information in support of the abf’s mission. The Maritime Border Command employs a sophisticated surveillance system, the Australian Maritime Information System (amis), to collect and analyse intelligence shared by cooperative agencies. The information managed under this system incorporates commercially available shipping data including crew, cargo and vessel details along with Defence classified information. Australia’s surface and aviation surveillance assets are fitted with onboard terminals that facilitate two-way communication with the command centre, amsoc. Using real-time technologies, the mbc identifies and assess maritime approaches from 1,000 kilometres and applies a risk-based approach to deter- mine if further action is necessary.42 Using a whole-of-government approach with advanced surveillance and response assets at their disposal, the mbc effectively mitigates and responds to a multitude of threats including, but not limited to, marine terrorism, natural resource exploitation and illegal maritime arrivals.

7 The Threat of Terrorism in Australia’s Waters

There is an ongoing concern regarding the threat of terrorism within Australia’s borders. In the past decade, terrorist attacks have resulted in the deaths of over 100 Australians around the world. The threat on Australia’s home turf is real; from 2001 to 2013, four terrorist plots were disrupted and 23 people were con- victed of terrorism related charges.43 The Maritime Border Command is the lead agency responsible for coordinating response and recovery to offshore maritime terrorist events as outlined in the Australia’s National Counter Terrorism Plan. Terrorist attacks targeting fixed infrastructure, such as offshore oil and gas installations; attacks on vessels; attacks on commercial interests, including tourism and fishing industries; and incidents mounted from, or through, the maritime environment are forms of offshore terrorism of particular concern. As the lead agency for offshore maritime counter terrorism, the mbc will coordinate the actions of several contributing agencies including Australian Police and Defence. Furthermore, the mbc is responsible for management and security of the incident site,

42 See , for example, C. Schofield, M. Tsamenyi, and M. Palma, Securing Maritime Australia, 39(1) Ocean Development and International Law 94–112 (2008), at 101–104. 43 Department of the Prime Minister and Cabinet, Strong and Secure: A Strategy for Austra- lia’s National Security (2013).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 233 provision of intelligence and reporting and provision of management advice to resolve the incident. Inside 12 nautical miles are unique in that the Australian States and Territories have primary responsibility for operational response to terrorist threats in their jurisdiction; however, the mbc will coordinate efforts beyond their capabilities. Several key pieces of legislation define acts of terrorism and enable enforcement agencies the powers to deter and respond to potential threats. The Criminal Code Act of 1995 codifies Commonwealth offenses including acts of terrorism. The Anti-Terrorism Act 2004 provides the framework to strengthen provisions of the Crimes Act 1914 relating to terrorism including longer detention periods and increased investigative powers. More recently, the National Security Legislation Amendment Acts of 2010 and 2014 advanced powers to detain and investigate offenders as well as deter dissemination of information that could diminish the effect of enforcement agencies. The 2014 Amendment was particularly controversial, receiving media coverage.44 The legislation introduced new offenses into the Australia Security Intelligence Organization Act 1979 that provided a maximum five years detention for disclosure of information related to special Commonwealth intelligence operations. This occurred during a time when freedom of speech and dissemination of information through online outlets was in the public’s attention. In particular, the highly publicized WikiLeaks website, founded in 2006 by Australian Julian Assange, has been under scrutiny, including a criminal investigation initiated by the federal government of the United States, for publishing classified information on the worldwide web. The overarching concern surrounding the 2014 National Security Legislation Amendment Act was that it hinders freedom of speech; of particular concern is that the new legislation can preclude journalists from reporting on the conduct of intelligence agencies because of threat of committing an offense.

8 Resource Protection – Illegal Fishing

Threats to natural resources within Australia’s maritime domain is a longstanding concern and Australia’s enforcement agencies are committed to protecting and sustaining critical reserves. Further, Australia anticipates that over the next 20 years, threats to our maritime resources will grow in sophistication

44 See , for example, http://www.smh.com.au/federal-politics/political-news/australias-new -security-laws-explained-20140926-10mh6d.html.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 234 Wraith and Schofield and scale.45 In this regard, combating illegal, unreported and unregulated (iuu) fishing is one of Australia’s greatest challenges. IUU fishing threatens Australia’s fishing interests by damaging fish habitats through destructive fishing practices, drastic depletion of fish stocks, and reduced value and condition of fish due to poor handling and illegal processing. The consequences of iuu has global implications. The practice of illegal fishing was coined the name “iuu”, illegal, unreported and unregulated, fishing in 1997 by the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) to describe the exploitative fishing practice of illegal fishers targeting the endangered Patagonian Toothfish in the Southern Ocean (see below).46 iuu fishing undermines national and regional conservation and stock management and, consequently, inhibits progress towards achieving the goals of long-term sustainability. Despite uncertainties, it is clear that the scale of this activity is enormous with estimates of the total annual catch for 2011, for example, ranging from 11 to 26 million tonnes, equating to 14–33 per cent of the world’s total legal catch.47 The economic impacts of this are astound- ing. According to one recent estimate, iuu vessels “steal” approximately 25 per cent of the world’s fish resources, which is valued at US$23.5 billion.48 Several key species in Australia’s commercial and recreational fisheries are at risk of long-term impacts on the health of stocks resulting from iuu fishing including abalone, Patagonian toothfish, rock lobster, prawns, snapper, mulloway, King George whiting, calamari, shark and West Australian dhufish. From an economic standpoint, the impact is huge. Commercial fisheries production in Australia is valued at approximately $2.8 billion49 and the majority of the value in this production comes from wild caught products, accounting for over 50 percent of Australia’s Gross Value Production. Additionally, recreational catch from the ocean has a considerable economic and social value to Australia with potential iuu fishing implications. Approximately 3.5 million Australians engage in fishing each year and it they spend an estimated

45 Commonwealth of Australia, 2016 Defence White Paper (2016), at 53. 46 The Patagonian toothfish (Dissostichus elegionides) is a demersal species otherwise known, especially in North America, as “Chilean Sea Bass”. See, Gullett, and Schofield, supra note 39, at 550. 47 See , ‘The Future of Fish – The Fisheries of the Future’, World Ocean Review 2013, Maribus, 2013, at 70. 48 Fiona Macleod, Illegal Fishing on High Seas Leaves Poor Countries Floundering, mail & guardian (July 19, 2013). See also, D. Agnew, et al, Estimating the Worldwide Ex- tent of Illegal Fishing. PLoS ONE (2009), available at http://journals.plos.org/plosone/ article?id=10.1371/journal.pone.0004570. 49 J. Savage, Australian Fisheries and Aquaculture Statistics 2015 (2016).

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$650 million on tackle and an additional $2.5 billion on ancillaries.50 Many of the species targeted by recreational fishers could be detrimentally impacted by iuu fishing and potentially push the government to close these fisheries to relieve fishing pressure and rebuild stocks. The role of recreational fishing compliance and authority is the responsibility of Australia’s states and territories as the majority of marine recreational fishing in Australian waters occurs within three nautical miles of the coast, that is in what are termed ‘Coastal Waters’. By agreement with the Commonwealth, these eight management authorities oversee recreational fishing compliance within their perspective jurisdictions, which extends seaward beyond the three nautical mile limit to the 200 nautical mile limit of the Australian Fishing Zone (afz). State and Territory authorities are governed by independent regulations including bag and size limits, and time and area closures; however, these authorities act in accordance with a national recreational fishing policy51 that promotes cooperation and collaboration across borders to achieve stew- ardship of developing and preserving long-term sustainable fisheries. The Australian Fisheries Management Authority (afma) is the primary enforcement agency dealing with iuu offenses. The Fisheries Administration Act 1991 established afma and now directs the functions and powers of the agency. Under this piece of legislation, afma employs a number of operational practices to monitor compliance in domestic commercial fisheries. All fishing boats nominated to Commonwealth fishing concessions must be fitted with an approved Vessel Monitoring System (vms), which must be kept on at all times, including in port.52 The onboard vms unit routinely produces satellite posi- tional reports that contain ship’s information such as current location, course and speed. afma officers view these reports as the information is collected and, additionally, have the ability to contact the vessel at any time and request an update. afma also uses electronic monitoring systems comprising video cameras and sensors monitors to record fishing activities. The data is stored within onboard terminals allowing afma authorities to verify logbook entries sub- mitted by fishers. The electric monitoring systems are now compulsory for most commercial fishing boats in the tuna fisheries as well as the billfish,

50 See , http://www.frdc.com.au/Archived-Reports/FRDC%20Projects/2012-214-DLD.pdf. 51 Recreational fishing in Australia – 2011 and beyond: a national industry development strategy was developed under the guidance of the Recreational Fishing Advisory Commit- tee in 2008, which was formed to review and update the guidelines of the 1994 National Recreational Fishing Policy. 52 See , Vessel monitoring system requirements, available at http://www.afma.gov.au/ fisheries-services/vessel-monitoring/.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 236 Wraith and Schofield gillnet, hook and trap fisheries. As stated in the afma National Compliance and Enforcement Policy, compliance is not the solely possible through afma enforcement measures, but also requires community support and partici- pation. afma educates fishers on the benefits of compliance and strives to promote and achieve voluntary compliance and enforcement. There are voluntary avenues for reporting non-compliance including a 24-hour hotline, an email address and an online form. The Maritime Border Command coordinates with afma when they suspect illegal fishing is occurring. The mbcs 24-hour surveillance across the maritime domain assists afma with their capability to detect illegal fishing events and coordinated operations between the two agencies have successfully resulted in numerous arrests. Between July 2016 and April 2017, mbc and afma joint operations led to the apprehension of fifteen boats illegally fishing in Australian waters.53 Beyond Australia’s eez, Australia holds obligations and powers to act against iuu within the terms of the UN Fish Stocks Agreement and regional fisheries agreements. On a regional scale, afma conducts operations and coordinates outreach programs to mitigate iuu fishing events within and beyond Australia’s borders. afma engages cooperative neighbouring States and assists them with fisheries management and education. From an operational standpoint, Australia conducts joint iuu fishing enforcement exercises with regional partnering enforcement agencies. For example, in 2016, the abf and afma conducted joint anti-iuu fishing operations with the Indonesian Ministry of Marine Affairs and Fisheries (mmaf).54 Regional collaboration to safeguard Pacific fisheries through cooperative surveillance and law enforcement gained traction in 1993 when members of the Pacific Islands Forum Fisheries Agency (ffa) ratified the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region. The Niue Treaty sets the international standard in ways of international collaboration to protect and sustain limited food resources. The Niue Treaty strengthens the collective maritime enforcement powers in the region relating to fisheries laws through provisions that facilitate the ffa, or other another Party, to share surveillance and enforcement information as it per- tains to mitigating fisheries related offenses. Moreover, the Niue Treaty allows, though provisions, that a Party may extend its law enforcement activities

53 See , Australian Fisheries Management Authority media release, available at http://www .afma.gov.au/illegal-foreign-fishing-crew-brought-darwin/. 54 See , Joint Australia/Indonesia illegal fishing patrol a success, available at http://www .afma.gov.au/joint-australiaindonesia-illegal-fishing-patrol-success/.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 237 within its territorial sea to another Party. Therefore, law enforcement procedures including stopping, boarding, inspecting and seizing vessels, as defined with the national laws and regulations of the State in whose territorial sea or archipelagic waters an offense occurs, may be carried by a foreign identity under the authority of local jurisdiction.55 In 2016, Australia announced its Pacific Maritime Security Program (pmsp). The psmp is part of Australia’s Defence Cooperation Program, which since the 1960s has worked to improve regional security by maintaining good relations and improving regional capacity through training and engagement.56 Australia’s then Prime Minister Malcolm Turnbull touted the program as “the centrepiece of Australia’s defence engagement in the South Pacific”57 and the Australian Government committed approximately $2 billion to the pmsp over the next 30 years. It comprises three components including 1) the continuation of the Pacific Boat Patrol Program, 2) implementing integrated aerial surveillance, and 3) enhancements to regional coordination. Australia plans to gift up to 19 patrol vessels to South Pacific Islands to upgrade an aging fleet of 22 patrol vessels built by Australia and donated to twelve Pacific Islands States and Territories between 1987 and 1997. The patrol vessels will advance operational capabilities and assist these States in their ability to enforce maritime law and maintain order and stability within the shared regional environment. Additionally, through the pmsp, Australia is advancing the regions surveillance capacity by funding contacts for civilian fixed wing aircraft deployments throughout the area. In efforts to enhance and support regionally coordinated monitoring, control and surveillance, Australia has signed an mou that hands over the operational control of the contracted aerial surveillance assets to the ffa.58 Therefore, the commitment of surveillance assets is delivered according to the priorities of the region and not one Party. Moreover, the information collected by these surveillance assets will be managed within the ffa Regional Fisheries Surveillance Centre and shared amongst ffa members. While the goal of the surveillance operations is to combat illegal fishing, the ffa has indicated that there is scope to increase the capability over time to detect and prevent numerous maritime threats. Changes in the Australian approach to maritime enforcement have, to a large extent, been prompted by the challenges involved in relation to the

55 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, available at https://www.ffa.int/system/files/Niue%20Treaty_0.pdf. 56 Department of Defence, Annual Report 2015–2016. 57 See , https://www.pm.gov.au/media/helping-our-neighbours. 58 See , https://oceanconference.un.org/commitments/?id=18793.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 238 Wraith and Schofield aforementioned threat to Patagonian toothfish stocks in Australian waters in the Southern Ocean. Australia engaged in two remarkably long-distance hot pursuits in southern waters involving Togo-registered South Tomi in 2001 and the Uruguayan-registered Viarsa 1 in 2003. The South Tomi was apprehended after the then longest hot pursuit in history (14 days, 3,300 nm), which was then surpassed by the hot pursuit leading to the arrest of the Viarsa 1. The latter entailed a chase lasting 21 days over 3,900 nm.59 The fact that both of these vessels fled the then unarmed Australian patrol vessel, the non-naval Southern Supporter, is regarded as a significant contributing factor not only to the upgrading of operational resources devoted to the problem but also the development of legal responses.60 On the domestic front, the maximum available penalties for unlicensed foreign fishing were more than doubled in 199961 (from $A250,000 to $A550,000) and significantly increased further to $825,000 in 2004.62 Additionally, from 1999 Australia introduced an automatic forfeiture regime for vessels used in foreign fishing offences whereby title over a foreign vessel is transferred to the Commonwealth of Australia at the time it is used in a relevant fisheries offence.63 Australia amended its fisheries legislation in order to recoup the costs associated with pursuit and apprehension as a further deterrent to deter illegal foreign fishing.64 In the Southern Ocean, where operations can be especially dangerous as well as costly, maritime security and enforcement cooperation is especially important. The iuu threat in southern waters prompted an innovative example of bilateral maritime security and enforcement cooperation between Australia and France. This maritime surveillance and enforcement cooperation relates to waters off the two States’ respective adjacent sub-Antarctic island territories, Heard Island and the McDonald Islands of Australia and France’s Kerguelen archipelago (see Figure 2). On 8 January 2007, Australia and France signed a treaty on cooperative surveillance and enforcement of their fisheries

59 Gullett and Schofield, supra note 39, at 551. 60 E.J. Molenaar, Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi, 19 International Journal of Marine and Coastal Law 19–42 (2004) 21 and 35. 61 Fisheries Legislation Amendment Act (No1) 1999 (Cth). 62 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004 (Cth). 63 See, Fisheries Legislation Amendment Act (No 1) 1999 (Cth). See also, Gullett and Schofield, supra note 39, at 552–554. 64 Such pursuit costs are defined as “costs reasonably incurred by or on behalf of the Com- monwealth in respect of pursuit activities conducted in respect of the boat.” See, Fisher- ies Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106J. See also, Gullett and Schofield, supra note 39, at 554–555.

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figure 2 Heard and McDonald Islands and the Kerguelen Islands laws against illegal foreign fishing vessels operating off these island territories.65 The 2007 Treaty gives effect to the 2003 Treaty66 by formalizing cooperative enforcement67 of the two States’ fishing laws through, for example, boarding, inspection, hot pursuit,68 apprehension, seizure and investigation of fishing vessels suspected of operating illegally within Australia and France’s adjacent sub-Antarctic marine jurisdictions. These arrangements, to some extent, echo the flexible maritime enforcement mechanisms included in the Niue Treaty (see above), which aim to

65 Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands, Paris, 8 January 2007. See also, Gullett and Schofield, supra note 39, at 545–583. 66 Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, Canberra, 24 November 2003. In force February 1, 2005. 67 Australia-France, 2007 Treaty on Cooperative Enforcement, Article 3. 68 Ibid ., Article 4.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 240 Wraith and Schofield provide substantial benefits in the enforcement of both Australia and France’s fisheries laws by providing for collaborative efforts and joint patrols. The agreement requires both state-parties to provide to each other reports on enforcement activities and information that may assist in prosecutions associated with illegal fishing operations.69 Moreover, it allows French officers on Australian patrol vessels to apprehend alleged illegal fishing vessels in the French sub-Antarctic eez and territorial sea (and vice-versa).70 Of note is that the Treaty authorizes cooperative enforcement activities on the high seas in circumstances of hot pursuit or where a vessel is acting as a “mother ship” for another vessel working as a team within one of the parties’ maritime zones.71 The treaty also declares that authorized enforcement vessels may engage in the use of unspecified “disruptive measures” consistent with international law “as a means of hindering the activities” of suspected illegally operating fishing vessels.72 Officers enjoy immunity from the other party’s criminal, civil and administrative proceedings where cooperative enforcement actions are taken in the other party’s maritime zone, although legal proceedings may be taken against them in their own state.73

9 Illegal Maritime Arrivals

Australia also views illegal maritime arrivals as a major threat. The State has prescribed a hard stance against illegal maritime arrivals for over 20 years as the administrative and operational policies have increasingly strengthened enforcement powers over this time. In the early 1990s, Australia implemented a mandatory detention policy during a time of influx of illegal arrivals by sea from conflicted Cambodia. The new law changed the maximum detention period from 273 days to an indefinite period as the mandatory detention policy targeted non-citizens without a valid visa, suspected of visa violations, and/ or attempting illegal entry or unauthorized arrival. People crossing borders with the intention of applying for refugee status, namely asylum seekers, are included under this definition. In further developments, 2001 marked the beginning of the Pacific Solution policy in Australia. From 1998 through 2001, the number of unauthorised people arriving in Australia by boat significantly increased. The debate surrounding

69 Ibid ., Articles 7 and 8. 70 Ibid ., Article 3. 71 Ibid ., Article 3(3)(b) and (c). 72 Ibid ., Article 3(7). 73 Ibid ., Article 5.

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Australia’s immigration and refugee policies relating to this event culminated in August of 2001 when a Norwegian cargo ship, mvt Tampa, declared a state of emergency and entered Australian Territory outside Christmas Island after it was denied entry following the rescue of 438 people at sea, mostly Afghan asylum seekers. As was defined in the Commonwealth Migration Act 1958, the State maintained a migration zone where arrivals were permitted to apply for asylum and have those claims processed in Australia. Following the event, in September of 2001, a new policy was implemented that led to amendment of the Migration Act to excise thousands of islands from the migration zone including Christmas Island, Ashmore Islands, Cartier Islands and Cocos Islands.74 The policy change, moreover, enabled transportation of asylum seekers to detention centres on Pacific Island States, namely Papua New Guinea and Nauru, backed by an adf operation to intercept vessels at sea attempting illegal entry. The Pacific Solution policy appeared to be accomplishing its goals as the number of unauthorised entries by boat dropped from over 5,000 to less than 150 in each of the next six years. However, the policy received considerable condemnation from the international community, including the United Nations High Commission for Refugees (unhcr), for its offshore, and indefinite, detention practices.75 Men, women and children were (and are) held in these detention centres for long periods while their status was determined. The policy was criticised for being inhumane and in breach of international obligations. Under international pressure, the government disestablished the Pacific Solution Policy in 2008 and closed its offshore detention centres, mov- ing the residents to facilities within Australia. Additionally, the government relaxed the mandatory detention policy, stating it was to be a last measure used exclusively for dangerous or repeat offenders.76 Following the change in policy, illegal entries by boat escalated from less than 10, carrying approximately 200 passengers in 2008 to more than three hundred vessels carrying over 20,000 passengers in 2013. The escalation of unauthorised arrivals by boat began immediately following the end of the Pacific Solution Policy and accompanied a mass exodus of emigrants fleeing fighting in Sri Lanka and the Middle East. Heavily used by people in desperate situations, people smuggling operations transported unsafe numbers of passengers on unseaworthy boats in dangerous seas. Unfortunately, the result of

74 In 2013, the excise was extended to the mainland of Australia following the arrival of 66 Sri Lankans into Geraldton, Western Australia. 75 See , for example, http://www.unhcr.org/en-au/news/latest/2008/2/47b04d074/australias -pacific-solution-draws-close.html. 76 See , for example, http://www.smh.com.au/news/national/mandatory-detention-policy -overturned/2008/07/29/1217097241058.html.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 242 Wraith and Schofield these practices was significant loss of life at sea. For example, in 2012, two illegal vessels attempting to land on Australia’s Christmas Island sank and nearly 100 people perished along the island’s coast. The incident, and those preced- ing, put Australia’s practice and policies back into the spotlight. In June of 2012, the Australian Government convened an expert panel to address the issues. The recommendations of the panel prompted a change in policy that previous governments employed at the start of the century, echoing the ‘Pacific Solution’ framework. The offshore detention centres in Nauru and Papua New Guinea were reopened and the debate concerning the legality and humanity of the practice was reignited. Moreover, the government reinstated the mandatory detention policy for all potential asylum seekers from the 1990s, which heightened the contested debate. In 2013, a newly elected government that campaigned a strong message to “Stop the Boats” launched a military operation, Sovereign Borders, to prevent illegal maritime migration. The operation focuses on combating people smuggling with a priority on reducing the number of illegal boat entries by using a zero tolerance approach. Still in effect, Sovereign Borders employs a ‘turn- back’ strategy that allows authorities to use force to prevent vessels carrying asylum seekers from entering Australian waters. Though military led, the operation is a combined effort of several government agencies aiming to prevent unauthorised maritime migration by interception of suspected illegal entry vessels (sievs) on the high seas. Termed the Joint Agency Task Force, separate government agencies take on one of three operational responsibilities. The Australian Police Force leads the Disruption and Deterrence Task Group, the Maritime Border Command leads the Detection, Interception and Transfer Task Group, and the Department of Immigration and Border Protection leads the Detention and Removals Task Group. Each of these groups pulls additional resources and assistance from a combination of fifteen different supporting agencies. Australia considers the operation a success. As of March of 2016, Australian Minister for Immigration and Border Protection, Peter Dutton, announced that since the inception of Operation Sovereign Borders, authorities have turned back 25 vessels contain- ing nearly 700 asylum seekers.77 The government’s stance on immigration, in particular enforcement powers to deter unauthorised entry by sea, was backed by new legislation that withstood challenges in the courts. Enacted in 2013, the Maritime Powers Act enables a maritime officer to detain a person on a vessel attempting illegal

77 See http://www.news.com.au/national/almost-700-asylum-seekers-turned-back-by -australias-border-operation/news-story/dff308032fd2b762fb8d6c9e1118f075.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access Australia’s Endeavours in Maritime Enforcement 243 entry and take the person to a place outside Australia. In January of 2015, the High Court determined that Australian Customs Officers were in their right to stop and detain asylum seeker vessels and detain upon the high seas.78 The case followed an incident in 2014 when Customs officers stopped and detained 157 asylum seekers from Sri Lanka onboard the government vessel for 29 days. The passengers were briefly brought to the mainland before it was determined that they would be transferred to Nauru. The defendant, the Australian Government, argued that this procedure aligned with Australia’s international law obligations, including the prohibition on returning asylum seekers to a place they would be in danger of persecution in breach of the non-refoule- ment principle. Australia also pursues regional and international cooperation to deter people smuggling. Australia has signed Memorandums of Understanding (mous) with 15 countries, including both source and departure countries. Through these mous, security arrangements facilitate cooperative efforts to mitigate events as well as enforce people smuggling laws, which under proper autho- rization will afford safe return to their countries of origin. Moreover, Australia is one of 48 State members of the Bali Process, a forum for discussing strategy and developing policy to allow cooperative efforts against regional maritime threats – namely people smuggling and related transnational crime. In March 2016, at the sixth meeting of the Bali Process, a ministerial declaration was signed in response to events in 2015 when people attempting to immigrate by boat were stranded at sea. Under the new declaration, member nations committed to establish a regional framework to respond to emergency events.

10 Conclusion

Maritime law enforcement for Australia undoubtedly presents daunting challenges, but Australia’s responses, whilst at times controversial, have had a notable degree of success. With relatively limited resources, Australia protects coveted resources, including fisheries and hydrocarbon reserves, in remote locations within one of the world’s largest maritime domains; covering an area greater than 12 percent of the world’s oceans. Illegal exploitation of natural resources is only a fragment of the threats that the State’s enforcement authorities must safeguard as security concerns range from violence at sea to maritime terrorism. This has required Australia to develop innovative law enforcement practices. The strategy is one of collaboration and cooperation

78 CPCF v Minister for Immigration and Border Protection [2015] hca 1 (January 28, 2015).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 219–244 06:25:30AM via free access 244 Wraith and Schofield at both national and international scales, backed by robust administrative and legislative frameworks and advanced technological capabilities. The creation of the Maritime Border Command and its placement within the recently established Department of Home Affairs reinforces Australia’s whole-of-government approach; a practical, institutional and organisational solution when contending with the challenge of a proportionally small population and limited resources dedicated to enforcing a spatially immense area. Embedding the Maritime Border Command with other civil law enforcement and intelligence agencies under one umbrella facilitates the Command’s role to coordinate collaborative law enforcement efforts. Beyond these civil agencies, Australia has enabled the mbc with defence capabilities by filling the Command’s lead role with an Australian Defence Force Rear Admiral with the powers to control both civil and military assets. Australia’s law enforcement policies and practices are supported through the enactment of supporting legislation. Australia aims to develop laws in agreement with international obligations while concurrently protecting and supporting domestic enforcement practices. It is recognised, however, that law enforcement policies and practices are dynamic. Long-standing legislative Acts remain malleable through Amendments and new Acts are created to support the fluctuating political environment. This flexibility to create new laws and amend others through a democratic process has enabled Australia enforcement with strong and effective, yet sometimes controversial, powers backed by innovative and progressive legislation. With administrative and legislative frameworks in place, Australia is augmenting its operational capabilities to keep pace with technological advancements maintained by current and potential threats to Australia’s interests. Australian maritime enforcement authorities adopt an intelligence-led, risk-based approach to undertake operations and the Australian Government has delivered large contracts for commercial surveillance operations. Addition- ally, the Government plans to provide the Australian Defence Force its largest budget, with funds earmarked to provide upgrades in surface and aerospace surveillance and enforcement assets, which will directly benefit maritime enforcement capabilities. Despite these developments, which have resulted in considerably more robust and efficient maritime enforcement capabilities, Australia recognises that there are growing demands on its maritime enforcement responsibilities and it will have to continue ongoing efforts towards maintaining regional stability through peaceful resolutions accomplished by strengthening alli- ances; investing in regional States’ capacity; and participating in international forums, conventions, treaties and agreements.

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