Australia on Papua

The National Interest
9 April 2006

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

Peter Mares: Senator Ellison welcome to the National Interest

Senator Chris Ellison: Good to be on the show, thank you.

Peter Mares: Will boats be pushed back?

Senator Chris Ellison: Well it will depend on the circumstances in which we intercept these people, but certainly they will be dealt with as we would deal with any other attempts at illegal entrance into Australia.

And of course we've put in place measures for dealing with people who try to enter our country illegally. And you've seen what we've done in the past and our policy has not changed.

Peter Mares: You've said that Papuan asylum seekers are no different to any other boat people, but that's not the case is it. I mean, these are Indonesian nationals fleeing directly from Indonesia. They're not like Afghans or Iraqis who are coming through another country.

Senator Chris Ellison: Well of course when we dealt with the people smuggling issues before, we didn't know where those people came from at the time. Subsequently of course we verified that, but when we come upon a boatload of people who are trying to enter Australia illegally we don't have the benefit of knowing their background, what their case is or why they're there. All we are presented with is an attempt to enter Australia illegally.

Now, of course, we have measures for dealing with that, and of course our policy is also very well known and we will maintain that policy.

Peter Mares: You accept that forcing a refugee back to a place of persecution is a breach of international law?

Senator Chris Ellison: Look, I think that the international law that we're upholding is our sovereignty in that we're maintaining our borders.

As the Minister for Customs and Justice I have responsibility for border control, and that is to safeguard our borders against illegal fishing, illegal entrance, security risks and anything else, which might pose a risk to this country including quarantine.

Now that is a right we have to maintain and that is our sovereignty as a nation and our sovereign waters.

Peter Mares: Australia is a signatory to the International Convention on Refugees. Do you accept that forcing a refugee back to a place of persecution breaches that convention and is a breach of international law?

Senator Chris Ellison: When we're faced with a boatload of people, they don't come with a sign saying, "These Are Refugees". When we're presented with that situation on the water, we don't know who they are; we don't know their background.

They might say they're refugees, they might say they're all sorts of things but I have to tell you that we're primarily charged with looking out for Australia's sovereignty and security. And that means that we intercept people who are trying to enter this country illegally and that could involve a number of measures which would be determined at the time by authorities who are engaging in the process of looking after our borders.

But I stress that Australia has an obligation with refugees and we have maintained that obligation. In fact, we have a very generous refugee program.

Peter Mares: Yes but we are talking here about people coming directly to Australia from another country. We are not talking about resettling refugees, which is quite separate to the Refugee Convention. The question is here what instructions will you give to Customs officers if they intercept a boat to ascertain whether or not those people may have a claim to protection as refugees?

Senator Chris Ellison: Well there is a process for determining that and that is under the immigration legislation. Customs officers are not the people who determine who is a refugee and who is not.

Peter Mares: No but they determine whether someone gets to make a claim or not. They police the border.

Senator Chris Ellison: Can I tell you that when you are on the open water and you are presented with a situation of this sort, there are all sorts of considerations which have to be taken into account. And of course maintaining the integrity of our borders is a primary function of Customs, Navy and those who patrol our borders. Another one of course is to preserve life at sea. If there is an aspect of danger to life, if there is any issue with the seaworthiness of the vessel. There are other considerations. You also have to look at the demeanour of the people concerned. Is there a security risk to the crew if we take them on board? Are they being aggressive? All those sorts of considerations have to be made and we rely on the judgment of our people out there when these encounters occur. Now for me to say, look I will dictate as to what happens in any given situation - we rely on our professional people out there to make a decision as to how they handle the situation.

Peter Mares: But surely you give them policy instructions.

Senator Chris Ellison: We do.

Peter Mares: I mean we know for example in the US case if the United States intercepts boat people from Haiti, those boat people have to really pass what's called 'the shout test' - that is they have to make it clear to the US coastguard that they are refugees, they have signal clearly that they are seeking protection otherwise they will be returned. Will Papuan asylum seekers have to pass 'the shout test' with Australian customs officials or will customs officials ask them 'do you have a fear of going back to Indonesia'?

Senator Chris Ellison: Look when we encounter vessels which are trying to enter Australia illegally, we certainly say to them we are Australian customs or navy and you are entering Australian waters illegally and in the past the process has been to advise them to turn back, and in some cases there has been, depending on the circumstances, an engagement with the people concerned, but it is not for our people on the water to determine whether these people are refugees or their background. The first thing we have to establish is any presence of threat that may be presented by these people. We do not know who they are and of course that it is very difficult to determine when you are out on the water. We will maintain our policy of protecting Australia's borders and the right to determine who can come to this country and under what circumstances.

Peter Mares: Do customs officers have an obligation to uphold international law and Australian law by upholding the Refugee Convention?

Senator Chris Ellison: Australian customs officers have an obligation to uphold Australian law and that is across the board. And that is something that they have been carrying out and carrying out very professionally over a long period of time. The navy is in exactly the same boat. We have a law in Australia, which we abide by and that is exactly what they do.

Peter Mares: But the fundamental point is this: will they attempt to ascertain whether the people have a real fear of going back to Indonesia? Because if they don't and if they push boats back to Indonesia, they will be, potentially, in breach of the international convention, in breach of international law.

Senator Chris Ellison: That's not the job of a customs officer, with great respect.

Peter Mares: But a customs officer determines whether or not someone will go through the appropriate process. I mean they are at the threshold, they make a decision at the threshold.

Senator Chris Ellison: If someone was to say we are refugees and the customs officer takes them at face value, I mean that explanation could be offered by anyone including terrorists.

Peter Mares: Yes but then they go into detention then you assess their claims. I mean those are not the key issues. The key issue is whether or not people are forced back people who are refugees, forced back to a situation of persecution.

Senator Chris Ellison: And depending on the circumstances, there may well be in the interdiction, an apprehension of people. That may well occur, turning back of vessels. I'm not going to say that in any particular circumstance what will occur. What I am saying is that we will police our borders as we have always done, and we have made it abundantly clear that border security is a priority of this government - it is part of the law of this country after all. I mean quite frankly, if there is a quarantine risk that could be a breach of the law. If there is a security risk that could be a breach of the law.

Peter Mares: But Senator Ellison if I can interrupt, quarantine, security breaches - this is the whole reason we have a detention policy for people who enter the country illegally seeking asylum. Those issues are dealt with through the detention policy - people presumably would be taken to Christmas Island.

Senator Chris Ellison:Yes we've done that before.

Peter Mares: Yes and what you are proposing is turning boats back to Indonesia when they are carrying people who potentially, who say they are, fleeing persecution in Indonesia.

Senator Chris Ellison: I have said that we have in the past said to vessels that are trying to enter Australia illegally that they should turn back. We have also in the past apprehended people and taken them to places like Christmas Island. It depends on the circumstances and all I am saying is that from my point of view I am concerned with the protection of the border of this country.

Peter Mares: But you wont tell us what will guide customs officers, when they encounter a boat on the water, what will guide them to determine whether to force people back or whether to ...

Senator Chris Ellison: I've just outlined to you in detail, the sorts of things that are taken into account when you encounter a vessel with people on board at sea who are trying to enter Australia illegally. There are a number of considerations that are taken into account. Now I'm not going to go into great operational detail other than to say that the person in charge, the skipper of the customs vessel or the captain of the naval vessel, makes a decision as to how to deal with things at the time, and we've seen some very difficult occasions in the past where navy and customs have done a fantastic job. But they have to assess the situation on the water: it's all very well for us to be sitting as armchair critics.

Peter Mares: I'm not suggesting that we are sitting as armchair critics, I'm suggesting that there should be a clear set of policies by which naval officers or customs officers know what is expected of them if people present as refugees.

Senator Chris Ellison: Well I can tell you what the first thing is and that is the perseveration of life.

Peter Mares: Sure I accept that - now let's deal with the specific case where people say 'we are refugees'. What happens then? Do they get sent back or do they get an opportunity to have their claim tested?

Senator Chris Ellison: It may well be that they are apprehended and taken to a detention centre, Christmas Island has been an example or another centre depending on what Immigration determines but if someone is attempting to enter Australia illegally, we do make a request that they turn back and we've done that before.

Peter Mares: But my question is if they say 'look we are refugees, we are fleeing persecution' will they under any circumstances forced back to Indonesia?

Senator Chris Ellison: Well, it may well be that if there is, depending on the circumstances of the case, and you have to remember that - and I'm not going to talk about hypotheticals here, but you have to look at the risk to human life, you have to look at the behaviour of the people concerned, if there is a risk, if someone comes to you brandishing a weapon ...

Peter Mares: No, but I am talking about a situation where people say 'please help us we are refugees' and whether or not that boat would be sent back. It's a quite clear question Senator, it's quite clear cut.

Senator Chris Ellison: No it isn't. It's not clear at all because what you are not acknowledging are the varying circumstances you can encounter on the high seas, out there on the water where our people are doing a very difficult job. And I'm not going to be tying down in any shape or form the discretion of our commanding officers to make a decision, which is in the best interests of their crew and the preservation of life at sea. Now it might all very well be for armchair critics to sit back and do that but I challenge them to be on the water at the time to make the decision when they meet people, who say without verification of identity or where they have come from, what their intentions are and our authorities are charged with the protection of our borders. It is a decision we make on a case by case basis, dependant on circumstances. That is how we've operated in the past, our policy is very clear.

Peter Mares: Senator Ellison thank you for your tmie.

Senator Chris Ellison:Thank you. It's a pleasure.


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