Dissenting Report
Coalition Senators
Coalition members of the Committee did not support the majority
view in a number of regards.
The nature of questioning during the inquiry and subsequently,
some commentary in the report suffered from a failure to comprehend fundamental
concepts of military command and control. This included the devolution of
authority to subordinate commanders (such as the captains of vessels and
aircraft or other units) and the concept of an authorized area of operation
(AO). Despite explanation by witnesses, some committee members still seemed to
think that a superior command was derelict in their duty if they did not know
the precise point-location of a vessel or aircraft at any given point in time
when in an AO.
There was a similar lack of understanding in discussion of
technical issues such as the difference between ship borne equipment that emits
a signal in the electro-magnetic spectrum as opposed to a passive device such
as a global positioning system. Despite explanation by witnesses, some
committee members did not seem to understand that for valid technical or
operational reasons, a ship or aircraft may not transmit a continuous data
stream providing real-time or near real-time position updates to a higher
headquarters (HQ). This led to the false assumption by some committee members
that vessels were not sure of their position for periods of time and that
higher HQ did not know where their assets were to the required level of
fidelity.
The majority report was selective in their use of evidence when
highlighting the opinion of two witnesses that aspects of Operation Sovereign
Borders (OSB) may not comply with the United Nations Convention on the Law of
the Sea (UNCLOS). The two witnesses differed on their interpretation about
critical elements of the legal basis for interdiction and yet the majority
report only made comment on the area where the two witnesses agreed on the
issue of control being exercised over interdicted boats in and beyond
Australia’s EEZ. There was no mention, for example, of the preceding evidence
by Professor Rothwell in two parts of his submission that:
Importantly for OSB, a vessel entering Australia’s
territorial sea with the purpose of unloading persons contrary to the Migration
Act 1958 (Cth) would not be engaged in innocent passage. Consistent with the
LOSC, Australia is entitled to “take the necessary steps in the territorial sea
to prevent passage that is not innocent” (Article 25 (1), LOSC). This could
extend to ordering the delinquent ship to remove itself from the territorial
sea, or physically removing the ship by taking control of it. A similar right
exists in the case of the contiguous zone, where Australia can rely upon its
capacity to “prevent infringement” of its immigration laws within the
territorial sea (Article 33 (1(a)).
And that:
With that qualification [that his analysis is limited to that
materiel which is in the public domain], by way of conclusion the following can
be stated:
- Australia has a firm legal basis under the law of
the sea to interdict asylum seeker vessels within the Australian territorial
sea contiguous zone, or EEZ.
- Australia has a firm legal basis to be able to
exercise control over those vessels to remove them from Australia’s territorial
sea and contiguous zone.
- Australia’s ability to exercise continuing control
over asylum seeker vessels interdicted within the Australian EEZ, or taken from
Australia’s territorial sea and contiguous zone into the EEZ, is limited.
While the majority report notes that the views of Dr Purcell
and Professor Rothwell are only two views on this issue, it makes no mention of
previous public statements by the Government that joint legal advice was sought
from the Office of International Law and AGS and that the Government is confident
in the legal basis to conduct OSB. The majority report appears to ignore the
fact that the Government has already accepted and understood that the
incursions breached UNCLOS and has already taken timely and appropriate action
to apologise to Indonesia and to establish why the incursions occurred and
enact measures to ensure there is no repetition.
Finally, the majority report makes speculative claims about
linkages between safety of life at sea and the border incursions which are not
substantiated by any evidence.
Senator Alan Eggleston (Deputy Chair)
Liberal Senator for WA
Senator David Fawcett (Deputy Chair on 21 March 2014)
Liberal Senator for SA
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