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Foreign Affairs, Defence and Trade References Committee - 21/03/2014 - Breach of Indonesian territorial waters

PURCELL, Dr Kate Clara, Postdoctoral Fellow, Faculty of Law, University of New South Wales

ROTHWELL, Professor Donald, Head of School, College of Law, Australian National University

CHAIR: I welcome Dr Kate Purcell from the University of New South Wales and Professor Donald Rothwell from the Australian National University. I would like to thank you for staying here. I know we have played around a bit with the time that you were going to start today. We appreciate your staying and apologise again if we have disrupted some of your travel plans back to Sydney or your other events for the day. Would you like to make an opening statement?

Dr Purcell : I am a member of the Andrew & Renata Kaldor Centre for International Refugee Law, which is also in the Faculty of Law at UNSW. I have lodged a written submission.

CHAIR: That has been circulated and tabled.

Dr Purcell : That submission responds to the third of the inquiry's terms of reference, which is 'the extent to which the incidents complied with international law', as well as the final term of reference ,which is 'other matters relating to Operation Sovereign Borders'.

As indicated in that submission, it is my opinion that the six incidents were in breach of international law. Australia could only enter into Indonesia's territorial waters if it was exercising the right of innocent passage or if it otherwise had Indonesia's consent to enter. There is no evidence that the entries were for the purpose of search and rescue but it may be noted that Indonesia's consent would still be required if they were.

Indonesia did not authorise the entries, and the entries do not fall within the meaning of 'innocent passage' as defined in articles 18 and 19 of the 1989 United Nations Convention on the Law of the Sea. As such, they constitute breaches of Australia's obligation to respect Indonesia's territorial sovereignty. The simple fact of entry without legal justification is enough to constitute breach. Any evidence that the entries were inadvertent does not affect their character as breaches of international law; nor does it affect Australia's responsibility for those breaches. However, to the extent that the obligation to respect Indonesia's territorial sovereignty includes a duty to exercise due diligence in operations close to the limits of Indonesia's territorial sea, any inadvertence that amounted to a failure to exercise due diligence may contribute to the breach.

Similarly, any evidence that persons on board the Australian Navy and Customs and Border Protection vessels involved were acting either in excess of their authority or in contravention of instructions does not affect Australia's responsibility for their wrongful conduct.

With respect to the final term of reference, other matters relating to Operation Sovereign Borders, it is my opinion that interdicting boats in Australia's contiguous zone and turning them back to the high seas would exceed Australia's limited right in that area to exercise the control necessary to prevent infringements of Australian immigration and customs laws and regulations. Turning boats back to Indonesia also carries a significant and inherent risk of violating Australia's obligations not to return people to persecution or other serious harm, or to places where there is a real risk that they will then be returned to other countries where there is a real risk of persecution or other serious harm. Australian Navy and Customs and Border Protection personnel are bound by those obligations in extra-territorial activities, as they are organs of the state. The obligations apply where Australia exercises effective control over asylum seekers.

So, according to both the law of the sea and the terms of the migrant smuggling protocol, any interference with Indonesian flagged vessels requires Indonesia's consent. In taking measures under the migrant smuggling protocol with respect to smuggled persons on flagged or stateless vessels, Australia is required to act consistently with its non-refoulement obligations, which the protocol expressly references. The migrant smuggling protocol imposes further requirements to ensure the safety and humane treatment of the persons on board and to carry out any return in an orderly manner and with due regard for the safety and dignity of the person. It is my opinion that leaving boats on the high seas, whether the original vessels or Australian owned lifeboats, would be inconsistent with these obligations.

Australia's obligations not to return persons to persecution, real risk of persecution or other serious harm also apply in the context of search and rescue operations, where Australia also has obligations under the 1979 search and rescue convention and the 1974 International Convention for the Safety of Life at Sea—SOLAS—as subsequently amended. These obligations include a duty to cooperate, to ensure that rescued persons are taken to a place of safety—an obligation that is in my opinion likely to be breached by leaving rescued persons on the high seas, where there can be no guarantee that they will be able to navigate to a place of safety.

I welcome questions from the committee on all or any of these points. I also welcome questions relating to the law governing the construction of baselines and maritime limits, which was discussed somewhat in earlier sessions.

CHAIR: Professor Rothwell, do you have an opening statement?

Prof. Rothwell : Yes. My submission, which is with the committee, principally addresses subparagraphs (c) and (i) of the terms of reference. I want to make some brief opening remarks which build upon points made by Dr Purcell. I should stress that my expertise principally relates to the law of the sea and not the refugee convention. The overarching legal framework for the law of the sea, as I am sure the committee is aware, is governed by the 1982 United Nations Convention on the Law of the Sea, to which both Australia and Indonesia are parties. For Australia the convention is the basis upon which all of Australia's maritime zones have been asserted and proclaimed, including the 12 nautical mile territorial sea, the 24 nautical mile contiguous zone and the 200 nautical mile exclusive economic zone.

The convention also provides a basis for Australian flagged ships, including military and other government ships, to exercise a range of navigation rights within the maritime zones of other states and also upon the high seas. The convention is also particularly significant to Indonesia as it provides the legal framework upon which archipelagic baselines have been declared. These baselines encompass the outer limits of the Indonesian archipelago, from which its maritime zones have been proclaimed. Indonesia is recognised as an archipelagic state under part IV of the convention, and Australia has not challenged Indonesia's status as an archipelagic state. Indonesia's maritime zones are therefore not delimited from its coastline but are predominantly proclaimed from its archipelagic baselines, which have gone through various phases since Indonesia ratified the convention in 1986.

Within the territorial sea, foreign ships, including warships and other government ships, enjoy a right of innocent passage. An Australian warship is therefore entitled to enter and pass through Indonesia's territorial sea if it conducts itself in a manner that is 'not prejudicial to the peace, good order and security of the coastal state'. That comes from article 19(1) of the convention. The meaning of 'passage which is not innocent' is further detailed in article 19, paragraph 2 of the convention and, relevantly for current purposes, includes the unloading of any person contrary to immigration laws and regulations or any other activity not having a direct bearing on passage. Therefore, the entry into Indonesia's territorial sea by an Australian Navy or Customs ship that has control over an asylum seeker boat by way of a towline, with the intention of returning that boat to Indonesia, would not be consistent with the right of innocent passage.

The same legal analysis would apply if a lifeboat were being towed into the Indonesian territorial sea. Such an activity would be permissible under international law if the Australian ship had conducted a maritime search and rescue operation and, with Indonesia's consent, were seeking to bring the persons rescued at sea to an Indonesian port. I note, however, that there is nothing on the public record to suggest that during the course of Operation Sovereign Borders Australian ships separately responded to an Indonesian request to assist in a search and rescue of the type that I have suggested.

Finally, it can be observed that international law permits Indonesia to take what the Law of the Sea convention calls 'the necessary steps' to prevent passage which is not innocent. How Indonesia chooses to respond to this situation consistently with international law would depend upon a number of factors including (a) whether a delinquent ship had acted in violation of Indonesian law and could be subject to arrest; (b) whether the delinquent ship was a merchant ship and subject to prosecution or a foreign warship or government ship which enjoyed sovereign immunity; and (c) the threat posed to Indonesia by the incursion, including whether the delinquent ship was demonstrating hostile intent.

In closing, I would note that there is nothing on the public record to suggest that Indonesia has sought to respond to incursions into its territorial sea by Australian warships and government ships via the mechanisms that it has available under the Law of the Sea convention, other than by way of diplomatic means whereby it has expressed its displeasure at Australia's conduct.

CHAIR: Before we get to questions, I want to ask for a point of clarification. I assume, because we have moved around the times, that you were here a bit earlier when there was a brief exchange regarding the legal status of incidents where we entered the territorial waters of Indonesia. I think 'incidents' rather than 'incursions' was the word we settled on as the appropriate word. I just want to get an understanding. The CEO of Customs, Mr Pezzullo, was quite clear in his view that they had not necessarily breached international law and they certainly had not breached any kind of Australian law. Is that—

Senator FAWCETT: No. In fact, the written review and the government responses make it very clear that they agree with Mr Pezzullo: they did breach it. It was inadvertent, but that inadvertence did not absolve the government of responsibility.

CHAIR: I am sure they are more than capable of answering that themselves.

Senator FAWCETT: But what I am saying is that you have just said that Mr Pezzullo said that—

Senator HANSON-YOUNG: He did. He just attacked me over it.

Senator FAWCETT: No, the government has been very clear, including the officials, that the breach occurred, which is why, in a very timely manner, that was referred through to the foreign minister and the defence minister.

CHAIR: No-one is disputing that a breach occurred. These are now matters of fact.

Senator FAWCETT: And the government acknowledged that in a very timely manner.

CHAIR: The record, including the Hansard record, will speak for itself, but I would not mind asking Dr Purcell and Professor Rothwell if they want to give a broad understanding about how this sits within Australian law. I think you have both said you are of the opinion that we breached international law.

Dr Purcell : Yes.

Prof. Rothwell : Yes.

CHAIR: I think this is what Mr Pezzullo's argument was, and this is where my understanding of this gets a little bit hazy. There was a discussion that we turned to very briefly about the application of UNCLOS in Australian law. Explain this to me. We have breached international law. What about our Australian obligations? Have they been breached in doing that? There is a convention we have signed to this effect, but we have not introduced it into Australian law. Is that correct? That is my understanding, but you will know this a lot better than I would.

Prof. Rothwell : I guess the answer to your question goes ultimately to the relationship between international law and Australian law. In some cases that relationship is very intimate and there is a clear obligation upon persons in Australia to not violate international law. Perhaps the clearest example of that would exist with respect to the International Criminal Court and obligations on Australian military personnel and other Australian nationals to not violate the Geneva Conventions and related provisions. If they do violate those provisions, they can be subject to prosecution under Australian law. So there is a very intimate relationship between that, and that exists because of the Australian legislative framework. In relation to the Law of the Sea, while the Seas and Submerged Lands Act outlines the basic parameters of Australia's ability to proclaim a series of maritime zones, there is not a comprehensive piece of Commonwealth legislation which gives effect to every single aspect of the Law of the Sea Convention, and neither should there be to that end. So it would be fair to say that there is no direct provision in Australian law which to my knowledge at least creates obligations upon Australian military officers and Australian government personnel to directly adhere to the provisions of the Law of the Sea Convention.

CHAIR: Do you want to add to that?

Dr Purcell : I would agree but also emphasise the point that we do not need to have legislation that provides that we must respect the territorial sovereignty of other states. For example, we do not have to have legislation which covers every single aspect of international law in order for it to apply to Australia.

CHAIR: Senator Conroy, do you have some questions?

Senator CONROY: Firstly, can I thank you for making your submissions. They were very detailed and will prove very helpful to the committee. I am hoping that you are familiar with the report on 7.30 earlier this week which provided a fairly detailed account of the experience of an individual seeking asylum in Australia, supplemented by video evidence shot on a mobile phone. Have you both had a chance to review that?

Prof. Rothwell : Yes.

Senator CONROY: Given the lack of information from the government about what is actually happening, and we witnessed some of that today, as part of our policy, I would like to ask about how the laws apply to the circumstance that was described in that report. What is your legal opinion on towing asylum seeker boats or lifeboats from within Australian territorial waters, contiguous zone or exclusive economic zone to an area outside Australian waters under the relevant international law?

Dr Purcell : I think there has been a lack of clarity there about the difference between those maritime zones. It is one thing for a boat to be within Australia's territory, which means it is within Australian territorial waters. It is another thing for it to be within Australia's contiguous zone or EEZ. The idea that in all those cases you are taking boats from Australia is not correct because the contiguous zone and EEZ are not part of Australia's territory.

Senator CONROY: I noted that the minister made a specific point about talking about we have the right, I think he said, but I do not try to would put words in his mouth, to intercept inside the 12=mile limit plus the contiguous zone. I am interested if you can help on that legal issue.

Dr Purcell : There is a very particular limited right in the contiguous zone under article 33 of the United Nations Convention on the Law of the Sea, UNCLOS, which allows Australia to exercise the control necessary to prevent or punish infringement of, among other things, its immigration and customs laws and regulations. So Australia has no rights of sovereignty or jurisdiction in the contiguous zone. What it has is the limited right to exercise control, to prevent or punish infringement of specified laws and regulations.

Senator CONROY: Is migration law one of those?

Dr Purcell : Immigration laws and regulations are mentioned. But in my view intercepting a vessel and forcibly removing it to the high seas would exceed the control necessary to prevent. It has to be preventive. If the vessels have already entered into Australian territorial waters, that is a different question. We are talking about vessels in the contiguous zone that have not yet entered into Australian territorial waters. Because this control does not amount to sovereignty and jurisdiction and because it is preventative power concerning immigration laws and regulations among other things, then in my view it would be limited to actions like inspections and warnings and could not extend to arrest, forceful taking into port or forcible taking of boats or forcible return of boats to the high seas.

Senator HANSON-YOUNG: And what about custody?

Dr Purcell : I was not very clear on the distinction between custody, detention and arrest. I feel that it would like what was discussed earlier but it depends what that means. If you are taking people on board your boat then, yes, I would say it is certainly exceeding the control necessary.

Senator FAWCETT: Professor Rothwell, you seem to have a slightly different take on the powers available to Australia in the contiguous zone in terms of intercepting vessels that are not defined as having innocent passage. Could you explain your position on that?

Prof. Rothwell : Yes, thank you, Senator. I think that you are referring to page 3 of my written submission. I take a slightly more expanded view on Australia's ability to intercept vessels within the contiguous zone to prevent infringement of immigration laws and regulations. What I do say in my written submission, however, is that it is unclear as to the extent of the ongoing control that can be exercised over a vessel that has been intercepted in the contiguous zone, removed from the contiguous zone, taken literally to the 25-nautical-mile limit which would then take it beyond the contiguous zone into the Australian exclusive economic zone, and though I say in my submission that there is absent flag state consent, it is unclear as to extent of the continuing control that can be exercised over a vessel in those circumstances. We certainly do not seem to have any evidence that Indonesia is giving any consent to the ability to exercise control over these vessels.

What I do say in my submission though, is that I have come to the view that irrespective of issues of incursion into the Indonesian territorial sea, the act of towing a vessel into the Indonesian exclusive economic zone, whether that is the original asylum-seeker craft or whether it is a lifeboat, cannot be consistent with Australia exercising the right of freedom of navigation. The right of freedom of navigation exists generally within the exclusive economic zone in the high seas and it is a right available to all states. But the exercise of the right of the freedom of navigation with the intention of towing a vessel which is not otherwise incidental to the normal mode of operation of that vessel with the ultimate aim of that towing operation or escorting operation ceasing, and directing persons on board that vessel to go, presumably, to the Indonesian coast, I do not believe is consistent with the legitimate exercise of the right of freedom of navigation. That is my view. I am not aware of whether or not Indonesia has raised concerns about that. It may have lodged a diplomatic protest about that matter that is not currently in the public domain.

Senator FAWCETT: Just in this discussion about the contiguous zone we have had a slight difference of view between the two of you. Do you accept that there will be other people who are expert in the law of the sea who may well hold views different from those that you have expressed today?

Prof. Rothwell : I think that would be a fair enough comment. But I think it is also worthy to note that not a large number of countries claim contiguous zones. So state practices, as international lawyers call it, with respect to contiguous zones is not as well established as it is with respect to the territorial sea, for example.

Senator CONROY: Is there any case law in this circumstance that you can draw on? Have any legal stouches taken place that would give a hint of any view around the world?

Prof. Rothwell : Not that I am aware of, Senator.

Senator CONROY: So can I just clarify, notwithstanding maybe the small difference between the contiguous zone issues, would both of you agree that once you have left Australia's contiguous zone that the towing of a boat contravenes the laws of the sea, or are we still within Australia's economic zone and that is okay? I do not know whether there is any space between our economic zone and their economic zone, but can I get an opinion there?

Dr Purcell : In my opinion in the submission that was co-authored by Dr Jane McAdam and Dr Joyce Chia, that I submitted, we did not address the issue of whether towing back or pushing back boats was an exercise of freedom of navigation, as Professor Rothwell has just raised. But I think that is a very convincing analysis of the law. Some things do not count as freedom of navigation.

I would refer to Professor Rothwell to answer the question as to whether there is any difference in Australia's EEZ as opposed to Indonesia's EEZ.

Senator FAWCETT: Can I just clarify that. Professor Rothell, you said in your submission on page 3 that it is unclear the extent to which continuing control can be exercised over the vessels within both the Australian or Indonesian EEZ. So it is not actually black and white; it is unclear in your own words, here.

Prof. Rothwell : That is correct. I would make a distinction between the exercise of control over the vessel and the exercise of the navigational right of freedom. There are two different approaches here.

If I may come back to Senator Conroy's point, article 33 of the Convention on the Law of the Sea deals with a contiguous zone and it gives to a coastal state such as Australia, the ability to prevent infringement of its immigration laws and regulations within its territory or territorial sea. To my mind, 'prevent infringement' certainly justifies interdiction of a vessel within the contiguous zone and returning that vessel to the edge of the contiguous zone. But if one anticipates that the vessel is simply going to turn around and come back into your contiguous zone then the ability to prevent infringement must, I think, have a slightly more expanded concept.

I am comfortable with the ability of Australia to indict and tow back a vessel into its exclusive economic zone. But, as I have said in my submission, it is unclear under international law as to how far one can continue to exercise control over that vessel. There is another dimension which both Dr Purcell and I have referred to in our submissions—that is, the application of the people-smuggling protocol. There are issues that arise with respect to the people-smuggling protocol—first of all as to whether or not one is dealing with a stateless vessel. I think there is a fairly strong argument that many of the vessels that are originally coming to Australia are not flagged under an Indonesian flag, they are not registered traditional vessels. As a result, the ability of Australia to exercise control over a stateless vessel within its exclusive economic zone—both under the people-smuggling protocol and under general international law—I think is quite expanded.

In answer to your question, Senator Fawcett, it is possible to construct a variety of ways under which Australia can exercise quite expanded control over asylum-seeker vessels that enter the Australian contiguous zone and enter the territorial sea and are then, effectively, to use the general term, 'pushed back' through the various maritime zones into the Australian exclusive economic zone. The question that I am raising in my submission is: how far can Australia continue to exercise that control when that vessel is taken under Australian control into the Indonesian exclusive economic zone? I think that raises significant issues as to the ability of Australia's capacity to continue to exercise that control.

Senator HANSON-YOUNG: Just to be clear, that is well to before the 12 nautical miles that has been the subject of the government's own stipulation.

Prof. Rothwell : Yes, that is correct. It is important to note that Australia and Indonesia have maritime boundary arrangements which delimit the exclusive economic zone in the area between, say, Christmas Island and Java. The arrangements are temporary arrangements but they are certainly arrangements in which the boundary of the exclusive economic zone is well understood to the Australian Navy and, I would suggest, to the Customs and Border Protection vessels. So there is no ambiguity as to where the boundaries of the exclusive economic zones are between the two countries in that body of water.

Dr Purcell : If I could just clarify a point of disagreement. I am not sure that the power to prevent infringement under article 33 could possibly extend beyond the contiguous zone, because I believe the right to exercise control applies only within the contiguous zone. So I do not think you could rely on article 33 to justify action that was extending into the EEZ—the exclusive economic zone.

Senator HANSON-YOUNG: What do the various international conventions and treaties say about taking somebody off the boat that they had arrived in and putting them on another boat? These lifeboats are not flagged by Australia, but they were not the boats the people arrived in. We have heard some suggestions from departmental officials in Indonesia that it is perhaps in its own way piracy and people smuggling. What laws allow for Australia to put a bunch of people from one boat onto another boat and then burn the original one?

Dr Purcell : To begin with, I do not think piracy is relevant. What is unclear is the status of the vessels—the lifeboats. If the lifeboats are considered to have Australian nationality, that is one thing. If they are considered—

Senator CONROY: I have asked that question. They refused to answer whether it was a flagged Australian vessel now that we have purchased it and are deploying it.

Dr Purcell : Certainly they do not have signs of the registry, or it appears they do not have signs of being registered as an Australian vessel—not physically on the boats. I think you could make a reasonable argument that, if they are small vessels that are being carried by larger vessels, then perhaps they have the same nationality as the larger vessels on which they are carried. But I think there is still some uncertainty about the status of those vessels. If those lifeboats are stateless and Australia is exercising effective control over people in the process of taking them off one boat—the boat they arrived on—and putting them on those stateless vessels and then leaving them on the high seas, that would be a very odd action. The ideal of the Law of the Sea is to have all vessels flagged, all registered to a state. I am not sure how that would be classified. Perhaps Professor Rothwell might have something else to say on that.

Prof. Rothwell : I direct your attention to pages 4 and 5 of my submission, where I raise some issues with respect to the use of lifeboats. Clearly, if a lifeboat is being deployed in the course of a search-and-rescue operation, that is perfectly acceptable. If a lifeboat is an ancillary aspect of the normal operation of a vessel, that would also be permissible. If persons claiming asylum had been transferred to a lifeboat because their vessel had been deemed to be unseaworthy, I think that could also be sustainable.

The distinctive aspect of Operation Sovereign Borders, as much as one can glean from the material in the public domain, is the use of the lifeboats for other than what would, at face value, appear to be a legitimate search-and-rescue operation—under which those persons are being taken to another place. If they were being brought to the Australian mainland or to Christmas Island because it was thought that a lifeboat was an appropriate vessel to bring them in, that would be entirely consistent, I think. Alternatively, if persons were transferred to a lifeboat and then, with Indonesian consent, brought to Indonesia, that would be perfectly consistent. But the use and deployment of lifeboats in the circumstances that we apparently have before us is—I agree with Dr Purcell—irregular. I am not aware of any precedent that exists.

In my submission, on pages 4 and 5, I raise a range of issues about the responsibility that Australia would have under international law if the persons on board that lifeboat were subject to an additional maritime incident. Hypothetically, for example, if they were struck by another vessel in the middle of the night as they were trying to make their way to the mainland, or if the lifeboat were to suddenly sink—although I understand that these lifeboats are unsinkable—then Australia would bear significant responsibility under international law, having apparently been responsible for transferring those persons onto that lifeboat and then casting them adrift.

Senator CONROY: We had evidence today from Navy personnel that, from the bridge of a patrol boat—so some height above the sea—you can see about five miles on a clear day. The government is arguing that at the 12-mile point they cannot, by definition, go any further—although they clearly have on a number of occasions. Let us just pretend that they stop at the 12-mile point and disconnect the tow and say, 'Land's that way'. You cannot see land, and you have a limited amount of food and a limited amount of fuel. What would you describe that as in a Law of the Sea circumstance? You might be able to say to them, 'Go that way; that's where land is over there'. How would you characterise that?

Dr Purcell : I think the difficulty would be that the Australian authorities could not be assured that that vessel could be safely navigated ashore because of the risk of collision, running aground and other maritime incidents happening before it could do so. To the extent that there was a breach of Australia's obligations to ensure the safety of persons onboard, then that would occur at the time that it loaded people on to such a vessel and left it on the high seas. And the breach would have occurred regardless of whether the vessels have Australian nationality or are considered stateless. So, the point of breach would be loading them on and leaving them on the high seas. That is when we would breach our obligation to ensure their safety.

Senator FAWCETT: I just want to bring you to point 5 of your submission, Dr Rothwell, and your remarks before—that your analysis is limited by the fact that you are only working on the material available in the public domain and therefore there are aspects you cannot be reasonably expected to analyse in detail. Despite that, you say Australia has a firm legal basis to be able to exercise control over those vessels and to remove them from Australia's territorial sea and contiguous zone. I just want to clarify that despite the absence of the other information you still believe that is a firm legal position.

Prof. Rothwell : Yes, and that is consistent, I think, with the evidence I have given today. I do not doubt that that is the question that exists, irrespective of the uncertainty about aspects of Operation Sovereign Borders that exists in terms of other areas of Australia's capacity under the Law of the Sea.

Dr Purcell : Perhaps I could just respond to Senator Fawcett's comment. In assessing Australia's right to do so, you would have to take into account our nonrefoulement obligations under the refugee convention and also under international human rights law. So that would be a consideration that we would have to bear in mind. If we were removing asylum seekers who had already entered into Australian territory and claimed asylum we would have to first assess their claims. And I believe you would have to do so in order to ensure, if you were returning people to Indonesia, effectively, that the individuals onboard would not be exposed to a real risk of persecution or—

Senator CONROY: The officer from the immigration department was very clear that he believed that because they were third-country—

Senator HANSON-YOUNG: He didn't say that; he said unless they had a claim for protection from Indonesia they did not have to consider it.

Dr Purcell : In my view that is incorrect. I think Australia has an obligation to ensure that it is not returning people to a country where they face a real risk of persecution or other serious harm or where there is a risk that Indonesia will return them to a third country where they would face a risk of persecution or serious harm. And it is relevant in assessing that that Indonesia does not have refugee status determination procedures in place.

Senator CONROY: Dr Rothwell, I was asking you—and you did not have a chance to answer—about what you thought was the status of towing a boat back to a certain point and saying, '12 miles out'—let's just pretend they were 12 miles out—'Land's that way', and you have a limited amount of fuel and a limited amount of food. You have to go in that direction, but you literally cannot see land from 12 miles out. If something was to happen to someone in that circumstance—I think you described a collision—or if they were unable to successfully disembark in an easy way, as has been reported—there have been suggestions that people had difficulty disembarking for a variety of reasons—what is the legal position of Australia in that circumstance, in your view?

Prof. Rothwell : This is a scenario which the law of the sea convention does not really contemplate. The general international law on lifeboats is predominantly limited to provisions such as the safety of life at sea convention and equivalent mechanisms, so there is no real contemplation for the apparent use of lifeboats in the way that you have described. But I think what we can say is that international law with respect to state responsibility—that is, the responsibility of a state for the actions of its agents and its relevant government agencies—where it has exercised control over a group of persons and in this case an asset such as this and sought to abandon this asset in the maritime zone of another state, whether it is the exclusive economic zone of Indonesia or the territorial sea of Indonesia, very squarely raises questions of Australia's responsibility under international law if harm or damage was to come to the persons in question. To a degree, the fact that the persons to date apparently have been able to safely reach Indonesian shores has not raised these questions legally, but I certainly in my submission indicate that if any harm was to be done to these persons, and certainly a maritime disaster could be contemplated, then Australia's responsibility under international law I think would be very clear.

Senator CONROY: There is a report that, after finding land, a refugee or a person in that circumstance attempted to travel through the jungle and across a river and drowned in the river. Has Australia's obligation ended at the point where they found land safely?

Prof. Rothwell : I would say yes in that instance. I do not think Australia would bear responsibility, setting aside refugee questions, but Australia would bear continuing law of the sea type responsibility or state responsibility under those circumstances, with one possible exception. That would be if Australia was to be sending these persons into a zone of conflict as such.

Senator CONROY: So Australia could push someone towards a deserted atoll, so they found land that was considered not Australian land—an Indonesian atoll. I am trying to get to where the point of liability would end. If you abandon someone on a deserted island, that cartoon image of a circle with a palm tree and nothing else, would that be considered—

Prof. Rothwell : I think in that case there would be ongoing responsibility. Unless the lifeboat was properly provisioned to allow those persons to sustain life once they reached landfall then Australia would clearly have ongoing responsibility in those circumstances.

Senator FAWCETT: Can I go back to your use of the word 'abandon'. I will give you the context we are talking about. A crew have brought a small boat from a very large group of islands and successfully navigated to close to a very small point of island in a large ocean well out of sight of land. They have been put into a vessel which has a reliable engine and, according to a news report in The Australian, the Indonesian police confirmed that it had television, navigation equipment, batteries, food et cetera. So there is a competent crew in a very seaworthy vessel, with navigation equipment. Do you think the use of the word 'abandon' is actually appropriate in that case?

Prof. Rothwell : Thank you for that question. I guess I am using the word 'abandon' in the sense that Australia is, at face value, apparently relinquishing its responsibility over the vessel and there are a set of expectations or assumptions made—perhaps based on the criteria that you have identified in your question—that the persons on board that vessel and the persons who are directing that vessel will be able to safely return it to Indonesia. I concede that we might have a disagreement over how the word 'abandon' is being used, but the clarifier is that I am using it in the sense of relinquishing control over the vessel that may otherwise have existed if it was being towed.

Senator HANSON-YOUNG: Both of you were referring to the exemptions in relation to innocent passage. At what point does the right to seek asylum invoke innocent passage, in terms of the obligations under the refugee convention intersected with the laws of the sea?

Dr Purcell : Do you mean when—

Senator CONROY: An incoming boat?

Senator HANSON-YOUNG: An incoming boat.

Dr Purcell : Into Australia?

Senator CONROY: 'We're seeking asylum, so we're claiming innocent right of passage and you can't interdict us on that basis.' I think that is what we are asking.

Dr Purcell : I think I would prefer to take the question on notice, if that is okay, and I can send you something back. I would say initially that the right to claim asylum would apply as soon as the vessel was in Australia's territorial waters. Whether or not it is also engaged in innocent passage would depend. It may come under one of the circumstances in which passage is not innocent due to the people being smuggled, but that would not affect the rights of asylum seekers who are on board. That could only affect the position of anyone on board who was actually—I am not sure about—

Senator HANSON-YOUNG: Then, of course, there is the people-smuggling protocol, which says that, if people are being smuggled for the purposes of seeking asylum, it is not illegal.

Dr Purcell : Yes. I think the migrant-smuggling protocol is very important in this context to the extent that Australia relies on it, because it has specific guarantees to ensure the safety of persons on board and to ensure safe return, and it specifically refers to the refugee convention and any rights under that convention.

Senator FAWCETT: Article 31 of the refugee convention also says that it is illegal to arrive without a visa, and that is why it is not innocent passage.

Dr Purcell : No, article 31 of the refugee convention does not say that. Article 31 provides that any entry without a valid visa or passport, which would normally attract penalties, does not attract penalties.

Senator FAWCETT: But it still terms it an illegal arrival under article 31.

Dr Purcell : But it would misrepresent the provision to emphasise illegality when illegality is precisely what is being excused.

Senator CONROY: It is the exact reverse of it.

CHAIR: Dr Purcell and Professor Rothwell, thank you so much. Apologies for making you wait till later than we had scheduled you.

Senator CONROY: They had to mention the word to say, 'This doesn't cover that.'

CHAIR: With that, we close this meeting of the Senator Foreign Affairs, Defence and Trade References Committee.

Committee adjourned at 15:52