Asylum in Australia: ‘Operation Sovereign Borders’ and International Law Joyce Chia,* Jane McAdam** and Kate Purcell*** I. Introduction On 18 September 2013, the day the Australian Coalition government was sworn into office, a new border protection policy took effect. Termed ‘Operation Sovereign Borders’ (OSB), it is based on the premise that Australia is facing a ‘border protection crisis’ that ‘requires the discipline and focus of a targeted military operation’.1 As a military-led operation, the government maintains a high degree of secrecy about its activities, which include intercepting and turning back asylum seeker boats. From early 2012 until mid-2013, there was a considerable increase in the number of asylum seekers seeking to reach Australia by boat — both in terms of total numbers (over 35,000 between January 2012 and July 2013) and intensity (over 3,000 arrivals per month between March and July 2013). Although these numbers remained very small in global terms (representing just three to four per cent of total asylum applications), 2 and 88 per cent of them were found to be refugees or otherwise in need of international protection,3 the unauthorised arrival of asylum seekers became one of the key political issues in the 2013 federal election. Playing upon generally poor community understandings about forced migration and common anxieties about ‘the uninvited’, terrorism, and security, politicians on both sides had championed increasingly draconian deterrence mechanisms — even when couched in the ostensibly humanitarian language of ‘saving lives at sea’.4 It was in this context that OSB was developed. This article begins by examining the background to OSB and what is known about its practical operation. It then evaluates OSB in light of Australia’s obligations under international refugee law, international human rights law, and the law of the * BA (Hons), LLB (Hons) (Melb), PhD (UCL); Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW. ** BA (Hons), LLB (Hons) (Syd), DPhil (Oxford); Scientia Professor of Law and Director, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW. *** BA (Mq), LLB (Hons) (UNSW), BCL (Oxford), PhD (Cambridge); Postdoctoral Fellow, Faculty of Law, UNSW. 1 Liberal Party of Australia and National Party of Australia, 'The Coalition’s Operation Sovereign Borders Policy' (July 2013) 2. 2 United Nations High Commissioner for Refugees (UNHCR), Asylum Trends 2013, Table 3, 13. 3 Department of Immigration and Border Protection, Asylum Statistics — Australia: Quarterly Tables — June Quarter 2013 (2013) 14 <www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-statistics-aus- jun-qtr-2013.pdf>. 4 See J McAdam and F Chong, Refugees: Why Seeking Asylum Is Legal and Australia’s Policies Are Not (2014). 33 34 Australian Year Book of International Law Vol 32 sea. The final section briefly contextualises these obligations domestically by examining a 2014 High Court challenge to certain aspects of OSB. II. The Background to ‘Operation Sovereign Borders’ (a) ‘Operation Relex’: the predecessor The roots of OSB can be traced back to the Tampa incident in late August 2001.5 On 26 August 2001, a Norwegian freighter (the MV Tampa) responded to an Australian-coordinated search and rescue request to assist 433 Afghan and Iraqi asylum seekers, who were on a sinking Indonesian ferry sixty-five nautical miles off the Australian coast. The Australian government refused to allow the freighter entry into Australian waters, and when it finally did enter the territorial sea off Christmas Island — because some of the asylum seekers were in urgent need of medical treatment — it was boarded by the Australian military. This standoff concluded with the transfer of the asylum seekers to Nauru and New Zealand to have their asylum claims processed. This series of events led to the creation of two related policies by the then Coalition government: ‘Operation Relex’, which was the predecessor to OSB; and the ‘Pacific Solution’, which involved the establishment of offshore detention centres in the Pacific island countries of Nauru and Papua New Guinea to which asylum seekers who arrived in Australia by boat could be transferred for processing.6 Operation Relex, which began at midnight on 3 September 2001, was an inter- agency operation involving the Australian Defence Force (ADF), including the Royal Australian Navy, and a wide range of Commonwealth government agencies.7 It combined operational strategies of disruption, interception and deterrence on the high seas, and authorised the Navy to intercept and board boats suspected of carrying ‘unauthorised arrivals’ (asylum seekers).8 Previously, the Navy had only intercepted unauthorised boats inside Australian waters and escorted them to Australian ports.9 5 For a detailed account of subsequent legislative and policy developments, and further readings on Operation Relex and the Pacific Solution, see J McAdam and K Purcell, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2008) 27 Aust YBIL 87. 6 There are numerous accounts of the Pacific Solution: see, eg S Kneebone, ‘The Pacific Plan: The Provision of Effective Protection’ (2006) 18 International Journal of Refugee Law 696; S Taylor, ‘The Pacific Solution or a Pacific Nightmare: The Difference between Burden Shifting and Responsibility Sharing’ (2005) 6 Asian-Pacific Law & Policy Journal 1; T Magner, ‘A Less than “Pacific” Solution for Asylum Seekers in Australia’ (2004) 16 International Journal of Refugee Law 53. 7 These included the Department of Immigration and Multicultural Affairs, the Australian Federal Police, Australian Customs Service and Coastwatch, the Department of Foreign Affairs and Trade, Australian Security and Intelligence Organisation, Office of National Assessments, and the Office of Strategic Crime Assessments. See Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Report on a Certain Maritime Incident (2002) ch 2. 8 Ibid ch 1–2; T Kevin, A Certain Maritime Incident: The Sinking of SIEV X (2004). 9 Senate Select Committee on a Certain Maritime Incident, above n 7, [2.7]. .