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University of New South Wales Law Journal Student Series |
TECHNOLOGISATION AT SEA:
SECURITISATION AND SURVEILLANCE IN MARITIME INTERCEPTION OF ASYLUM SEEKERS
CHECKER MCCARTHY
Recent decades have seen States equip themselves with an ever more sophisticated arsenal of surveillance technologies to deploy within their maritime domains. More so than any of its neighbouring States, Australia has embraced this era of ‘technologisation’ of maritime interception with an ardent vigour. Autonomous maritime vehicles (MAVs), unmanned aerial vehicles (UAVs), and algorithmic risk assessment all represent technologies at the frontier of this field in Australia, and whose operation is subject to multiple intersecting departmental policies in cooperation with contracted private entities. In the span of a decade, Australia has transformed its fleet of aircraft, vessels, and advanced systems to such an extent that its capacity to identify and assess both vessels in distress and vessels carrying asylum seekers has dramatically increased. This rapid technologisation of maritime interception has the potential to aid Australia in fulfilling its obligations under international human rights and refugee law, and customary international law. However, its use in Australia has in fact represented a trend toward the securitisation of maritime borders, treating asylum seekers as potential threats. Indeed, Australia has on notable occasions extracted from these obligations singular provisions which support its securitising effort,[1] or even more harmfully, enacted legislation in contravention with its obligations.[2] In addition, there exists a thick blanket of security in the form of Operation Sovereign Borders, including the criminalisation of whistleblowing,[3] which functions to complicate notions of transparency and accountability. This comes at a critical time in which more people than ever have been forcibly displaced,[4] making the fulfillment of international obligations with respect to maritime interception all the more vital. Ultimately, technologisation offers unique opportunities to realign Australian maritime practices not only with international law, but with the humanitarian dimension of seeking asylum.
This research essay will be structured into the following Parts. Part II provides an analysis of Australia’s obligations arising under international human rights and refugee law, and customary international law with reference to the 1951 Refugee Convention,[5] its 1967 Protocol,[6] the 1994 Convention on the Law of the Sea,[7] the 1974 Safety of Life at Sea Convention,[8] the 1986 Convention on Maritime Search and Rescue,[9] and recent developments such as the 2003 UNHCR Executive Committee Conclusion on Protection Safeguards in Interception Measures[10] and the 2016 New York Declaration for Refugees and Migrants.[11] These sources of law determine in what circumstances there exists a duty to rescue and facilitate disembarkation of asylum seekers. Part III provides a curated history of incidents of maritime interception in which Australia has been involved since the Tampa affair, paying particular attention to debates preceding two key federal elections, in 2001 and 2013, to show that the trend toward securitisation of Australian maritime borders is out of step with its obligations under international law. Finally, Part IV will then turn to the increasing technologisation of Australian maritime interception of asylum seekers through analysis of Australia’s currently operating fleet, and its plans for future expansion.
The duty to rescue persons in distress at sea one of the most closely held tenets of the law of the sea. Originating from at least as early as the eighteenth century, [12] it is a key feature of customary international law and has shaped the drafting of international treaties such as UNCLOS, the SOLAS and SAR Conventions, and the Refugee Convention.[13] Significantly, the humanitarian aspect of rescue at sea is equally applicable to both vessels in distress and vessels carrying asylum seekers attempting to enter the maritime territory of a destination State. However, there exists no international agreement which solely governs the rights of asylum seekers travelling by sea, or that which imposes a binding positive obligation upon States to facilitate their disembarkation. This leaves this subset of asylum seekers with a patchwork of international protections, the contradictions between which are utilised by States to lend legitimacy to non-admission policies for maritime arrivals.[14] By signing and ratifying the above-mentioned international frameworks, Australia has, in principle, agreed to conduct its search and rescue (‘SAR’) operations in ways that protect asylum seekers and facilitate their admission for refugee status determination (‘RSD’). However, the complex interplay between these international agreements has historically led to disagreements between member States about their obligations and responsibilities for admitting asylum seekers into their territory.
An analysis of the substance of these overlapping and complementary international legal instruments must be conducted to decipher in what circumstances Australia’s obligations are enlivened, and whether greater protections must be afforded to asylum seekers found inside maritime jurisdictions of member States (territorial or otherwise). An authoritative starting point can be found in Article 98 of UNCLOS which declares that flag States must assist any person found “in danger of being lost”, “in distress”, or “after a collision”, and that coastal States must establish “an adequate and effective search and rescue service”.[15] This introduces the fundamental issue at the core of international law in this space: the notion of responsibility sharing between flag and coastal States. The SOLAS Convention echoes the latter half of the dual obligation in UNCLOS, providing that arrangements are to be made for “the establishment, operation and maintenance of such maritime facilities ... to afford adequate means of locating and rescuing” persons in distress.[16] However, this emphasis placed upon coastal State responsibility is weakened by the various exceptions to the right of “innocent passage” for foreign vessels travelling through the territorial waters of a coastal State.[17] These include where closure of a coastal State’s territorial sea is “essential for the protection of its security”,[18] or where a vessel loads or unloads “any persons contrary to the ... immigration ... laws and regulations of the coastal State”.[19] This allows States to deliberately legislate in ways that prevent innocent passage through its maritime domain for the purpose of seeking asylum.[20]
The application of these exceptions lay at the centre of the Tampa affair, which will be addressed in greater detail in Part III. However, in response to the highly publicised incident, significant amendments were introduced to the SOLAS and SAR Conventions in an attempt to clarify the conflict between flag and coastal State responsibility.[21] In practice, the consequences of diminishing the responsibilities of coastal States in SAR are not necessarily that the flag State themselves carry the relevant burden, given most ocean-faring vessels are registered under flags of convenience who are “unlikely to be zealous”[22] in enforcing obligations arising under treaty law. Instead, it is often the rescuing vessel itself which flies the flag of the flag State which is necessarily required to divert from its course to intercept those in distress and reroute to a new destination to facilitate disembarkation. This can result in significant financial losses for commercial fishing or freight vessels who, in turn, are economically incentivised to shirk their responsibilities.[23] Therefore, coastal States like Australia are better equipped to fulfil this role, having a comparative wealth of resources at the disposal of the Australian Maritime Safety Authority (‘AMSA’), the Australian Defence Force (‘ADF’), and state and territory law enforcement.
Where UNCLOS and the SOLAS Convention emphasise flag State responsibility, the SAR Convention represents inter alia a division of maritime space into SAR zones, the onus for the patrol of which lies with member coastal States. Australia’s SAR zone is not synonymous with its territorial waters. Instead, the 52.8 million square kilometre area was allocated to Australia by the International Maritime Organisation (‘IMO’) in consultation with member States in fulfilment of the obligations under treaty law.[24] Importantly for the refugee context, the SAR Convention emphasises that States are to provide assistance “regardless of the nationality or status of such a person”.[25] However, the IMO reports there being hesitancy on the part of member States to ratify the SAR Convention and implement its requirements given the ambiguity surrounding a duty to facilitate disembarkation.[26] Amendments to the SAR Convention adopted in 2004 represent attempts to resolve this ambiguity,[27] obliging States to deliver those rescued to “a place of safety”.[28] This term is not defined in the SAR Convention and has instead been described elsewhere by the UNHCR as “a place from which transportation arrangements can be made for the survivors’ next or final destination”,[29] failing to adequately address the plight of asylum seekers rescued at sea whose intended final destination is likely to be the coastal State itself. Disagreement over whether this, in practice, obliges member States to facilitate disembarkation at the “next port of call” [30] or the one geographically closest[31] has been profitable for coastal States wishing to avoid enlivening non-refoulement obligations. Ultimately, this uneven framework is not fit for purpose in a refugee setting given, while often being found in similar circumstances of distress, asylum seekers are not stranded sailors and deserve greater clarity with respect to their rights, and more meaningful methods of enforcing them.
Existing in parallel to the international law of the sea is the collection of obligations owed by Australia with respect to international refugee law. As a member State to the Refugee Convention, Australia has agreed not to expel or return asylum seekers “in any way whatsoever” to places where their life or freedom would be threatened for reason of any of the five Convention grounds: race, religion, nationality, membership of a particular social group or political opinion.[32] Australia is also bound by non-refoulement obligations under international human rights law with respect to complementary protection under the agreement that Australia not to subject asylum seekers “to cruel, inhuman or degrading treatment or punishment”.[33] Further, the principle of non-refoulement has been accepted as a core pillar of customary international law, binding States independent of their status as a members to international instruments.[34] However, States remain unwilling to adhere to their international obligations to prevent violations to the principle of non-refoulement. Indeed, Australia has constructed a number of novel legal devices in an attempt to avoid enlivening its non-refoulement obligations, including the excision not only outlying island territories, but the entire Australian mainland, from its ‘migration zone’.[35] However, the broad inclusion of any method of expulsion in the prohibition on refoulement is particularly relevant to maritime interception meaning that the non-admission practices employed by Australia, including take-backs, turn-backs, and assisted returns,[36] are captured by this definition. The extraterritorial application of this relevant too, in that the prohibition on refoulement extends “wherever the State exercises jurisdiction”,[37] not merely within a given area designated by the member State in domestic legislation.
An attempt to achieving further compliance came in 2003 by way of Conclusion No. 97 of the UNHCR Executive Committee which explicitly states that the “State within whose ... territorial waters interception takes place has the primary responsibility for addressing any protection needs of intercepted persons”.[38] This is a particularly forceful statement given, unlike treaty bodies themselves, the Executive Committee is comprised of delegates from member States and therefore represents a more conscious commitment on the part of States to adhere to its conclusions. The most recent and forceful restatement of this principle is contained in the New York Declaration, the signing of which by Australia purportedly signalled to the international its “respect for the institution of asylum and the right to seek asylum”.[39] However ultimately, in the face of continuing disputes arising from maritime interception over the obligations owed by Australia and others emulating its behaviour,[40] these two examples fall on a continuum of calls to respect “the humanitarian obligation of all coastal States to allow vessels to seek haven”[41] and the responsibility of the “coastal State in the immediate vicinity of the rescue”[42] to conduct disembarkation and RSD.
Examples of such disputes between member States over disembarkation of asylum seekers rescued at sea are numerous. As mentioned above, the conflict between costal and flag State responsibility is perhaps most infamously embodied in the August 2000 standoff between the Norwegian freighter, the MV Tampa and the Australian Howard government over the disembarkation of 433 Afghan asylum seekers.[43] The Tampa had responded to a distress call in the Indian Ocean and rescued the asylums seekers aboard the Indonesian ferry Palapa 1 in fulfilment of its obligations under UNCLOS and the SAR and SOLAS Conventions.[44] Taking into consideration the deteriorating health and threats of self-harm of those rescued, Captain Arne Rinnan redirected the Tampa to the nearest port of call on Christmas Island to facilitate disembarkation.[45] However, the Australian government refused the Tampa entry into its territorial waters, threatening prosecution under the then operating provisions of the Migration Act. While significant discretion is afforded to States to deny asylum seekers entry into their territory under the doctrine of state sovereignty,[46] the Australian government undoubtedly had protection obligations to these predominantly Hazara asylum seekers given the military control exercised by the ADF over the Tampa and the lodgement of asylum requests while in Australian waters.[47] Ultimately transferred to Nauru to conduct RSD, the fate of the asylum seekers aboard the Palapa 1 represent a critical turning point in domestic Australian policy toward the treatment of asylum seekers as a security issue to “manage new threats of international crime and terrorism”.[48]
However, this securitisation of maritime borders has not impacted all aspects of SAR. In 1997, two foreign sailors who had capsized inside Australia’s SAR zone in the Southern Ocean while competing in the Vendée Globe Yacht Race were successfully rescued in an Australian SAR operation involving four Royal Australian Navy (‘RAN’) vessels and six Royal Australian Air Force (‘RAAF’) aircraft[49] described by the RAN itself as a “miracle in the south”.[50] More recently, in 2010, an AMSA-charted Qantas Airbus A330 discovered and provided logistical support to a foreign sailor, Abby Sunderland, whose yacht had dismasted during a circumnavigation attempt on the edge of Australia’s SAR zone in the Indian Ocean. Throughout the entire duration of both rescues, the media enjoyed real-time updates of both rescues, which were met with praise for the rapid and effective mobilisation of Australian SAR rescues and their coordination with those of neighbouring coastal States.[51]
In stark contrast to these examples, maritime interception of asylum seekers in the twenty years since the Tampa affair have been characterised by the especially punitive measures employed by successive Australian governments under the auspices of security to deter them from entering Australian territory. Indeed, the Australian approach has garnered outsized attention by international researchers for reason of the Tampa incident and its temporal proximity to the September 11 attacks which “propelled border security to the centre of the electoral debate and conflated the identities of asylum seekers with potential terrorist threats”.[52] Australian maritime interception of asylum seekers, and its subsequent maritime expulsion thereof, has received potent critique from the United Nations, foreign governments, and Amnesty International who declare it reckless and out of step with Australia’s international obligations despite being a mainstay of federal elections since 2001.[53] United Nations Special Rapporteur on the human rights of migrants, Felipe González Morales, most recently described Australia’s policy of maritime expulsion as a “cruel and deadly practice”.[54]
Just as Prime Minister John Howard’s decision to establish regional processing facilities as part of the ‘Pacific Solution’[55] lead his government to victory in the 2001 federal election with an increased majority,[56] so too did Tony Abbott’s election campaign promise to ‘stop the boats’ form a cornerstone in his victory in the 2013 federal election.[57] The politics of race has also harmfully entered the debate surrounding asylum seekers, being wrongly depicted as “deviant, diseased and threatening”.[58] The Abbott government launched its Operation Sovereign Borders on its first day of Parliament, creating a narrative that Australia’s maritime borders are a “vulnerable site in need of constant protection”[59] and manufacturing a fear that asylum seekers represent not only a threat to Australia’s national security, but also as “as somehow jeopardizing the existing lifestyles, economy or culture”[60] of Australia.
The primary tool used by the Australian government in securitisation of maritime interception of asylum seekers under Operation Sovereign Borders has been the deployment of advanced systems to facilitate the identification and expulsion of boats from its maritime domain. This is a key difference between the practice of other States engaged in deterrence of maritime arrivals, such as the United States, in that Australia has conducted boat turn-backs from within not only its SAR zone but also its territorial waters, resulting in significant violations of the principle of non-refoulement.[61] Access to further information protected by Operation Sovereign Borders is significantly hampered by the secrecy provisions contained in the Australian Border Force Act 2015 (Cth), which introduces an offence subject to two years imprisonment of recording of disclosing any “Immigration and Border Protection information”, defined broadly but particularly concerned with that which would “prejudice the security, defence or international relations of Australia”.[62] However, it is known that as of 22 March 2021, the Australian Border Force (‘ABF’) reports to have turned back thirty-eight vessels carrying a total of eight hundred and seventy-three persons away from Australian territorial waters.[63]
The Australian government has been able to carry out these high number of maritime expulsions through radically transforming its fleet of aircraft, vessels, and advanced technologies which now possesses world-class strategic operability. The ADF has enjoyed the greatest growth in capability with respect to maritime surveillance, with Operation Resolute constituting its contribution to Operation Sovereign Borders “through surveillance and response in the maritime approaches to Australia”.[64]
In particular, the RAAF has placed two technologically advanced aircrafts, the Poseidon and Triton, at the centre of its “future maritime patrol and response strategy”.[65] Introduced to replace the ageing Orion class aircrafts purchased under the Howard Government,[66] a total of twelve Poseidon class aircrafts are currently in operation, purchased under an initial US$1.49 billion contract awarded to manufacturer Boeing,[67] with another two aircrafts currently being manufactured[68] for a total approved project budget of AU$5.36 billion.[69] The Poseidon is equipped with advanced radar, camera, satellite data capabilities and has accrued 4,847.5 actual flying hours in the 2019-20 financial year,[70] representing the equivalent of 202 days of 24-hour maritime surveillance.
On 28 June 2018, a joint media release announced a AU$200 million cooperative program between the Australian government and the United States Navy for the development of the Triton.[71] Senate estimates revealed that this investment figure represents only a precondition to carry out the approved purchase of six Triton aircrafts by the ADF from manufacturer Northrop Grumman, representing a total investment of over AU$7 billion.[72] The Triton, an unmanned remotely piloted aircraft system, represents an even further leap in technologisation “capable of conducting intelligence, surveillance and reconnaissance missions of over 24 hours while covering an area of over one million square nautical miles”.[73] The Australian fleet of naval vessels has been subject to a similar wave of technologisation. The lack of transparency surrounding the types of missions with which these aircraft are tasked is obfuscated by the secrecy of Operation Sovereign Borders. However, the AU$184 million infrastructure upgrade to the Cocos (Keeling) airfield, quietly announced in the ADF’s most recent Annual Report, as supporting “P-8A Poseidon maritime surveillance ... and other aircraft operations”[74] strongly indicates the use of these aircraft in facilitating maritime expulsions.
The RAN operates its own unmanned remotely piloted aircraft system, the Boeing-Insitu manufactured ScanEagle, equipped with a range of high-definition camera modes and a “maritime automatic identification system”,[75] at a cost of AU$ 998,945 each[76] and a total cost of AU$15 million.[77] However, technologisation of maritime interception has predominantly fallen under the remit of the ABF. Flagship ABF vessels ABFC Ocean Shield and Ocean Protector, capable of deploying autonomous marine vehicles like the Bluefin-21 and unmanned remotely piloted aircraft systems like the ScanEagle, are tasked with undertaking “patrols in northern waters and the Southern Ocean” for the purpose of “intercepting vessels and apprehending” persons suspected of entering into Australia’s territorial waters unlawfully.[78] The Ocean Shield in particular was reported by the Department of Immigration and Border Protection to have patrolled these areas for an average of 323 days per year between July 2015 and June 2018.[79] The ABF is assisted in this effort by the more agile Bay and Cape class vessels which are tasked with “responding to reported or suspected border incidents and illegal activity”.[80] These above-mentioned technologisation efforts represent a hugely costly project which together form, to a large extent, the physical tools used in maritime interception of asylum seekers by Australia.
However, technologisation in this field extends beyond just the physical. Advanced technologies, while often intangible, represent some of the most powerful tools in facilitating maritime expulsion. The process known as ‘enhanced screening’ is one such advanced technology in which asylum seekers intercepted at sea are detained, either “on Australian vessels and their own vessels”, for an unknown length of time to meet with Department of Home Affairs officials via video link or teleconference to conduct RSD. The detention of asylum seekers during maritime interception has been deemed constitutionally valid by the High Court in their finding in Lim[81] that detention of asylum seekers for the purposes of exclusion is permitted under the aliens power.[82] This form of RSD has been criticised as “rudimentary” since it was first made known to the public in July 2014 when a group of forty-one, predominantly Tamil, Sri Lankan asylum seekers were intercepted in the Indian Ocean.[83] It is reported that “asylum seekers were asked just four basic questions: their name, their country of origin, where they had come from and why they had left”.[84] International refugee law scholars have decried this practice of ‘enhanced screening’ as incompatible with the adequate RSD and the fulfilment of international obligations arising under the principle of non-refoulement.[85] In a 2011 compilation of selected reference materials, UNHCR Geneva has even explicitly stated that a vessel “not an appropriate place to screen and categorize those rescued ... nor should such a vessel be used as a floating detention centre”.[86]
In the instance of the July 2014 asylum seekers, after this ‘enhanced screening’ process had been completed, and none of the forty-one were owed protection obligations, the group was “handed over the Sri Lankan authorities”.[87] After attracting much criticism for breach of non-refoulement obligations and procedural fairness, this method of on-water transfer of asylum seekers directly back to the authorities of the State from which they have fled was again deemed constitutionally valid in CPCF, in which it was found that “procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power [under section 72(4) of the Maritime Powers Act 2013 (Cth)[88]] any greater opportunity to be heard than is reasonable in all the circumstances.”[89] The exact details of ‘enhanced screening’ have not been made public, and indeed in a Department of Home Affairs answer to a question on notice from 2 March 2020 it claimed both that it “longer conducts enhanced screening either at sea or on land” and that it had no record of a disputed policy document titled ‘Department’s Screening Policy Guidelines April 2013’.[90] However, this exact document can be easily found online, although redacted, as it was released under a successful freedom of information request on 23 August 2013.[91] Further publicly accessible successful freedom of information requests have revealed that ‘enhanced screening’ was still conducted, under another name, until at least as recently as 2015.[92]
Since the July 2014 on-water transfer, Australia has engaged in at least four other instances of maritime expulsions of Sri Lankan asylum seekers alone:[93] thirty-seven in November 2014 (one of which was referred to offshore processing), [94] four in February 2015,[95] twelve on 6 May 2016, [96] and thirteen in August 2019.[97] This is particularly troubling given Sri Lankan nationals who leave Sri Lanka unlawfully are liable to criminal prosecution upon return,[98] let alone subject to the individual cases of persecution that may have led them to initially seek asylum. Again, limited information is known about what RSD screening these persons may have received however a partially successful freedom of information request dated 5 August 2020 revealed that an ‘Individualised assessment interview transcript’ and a file note relating to ‘Assessment of barriers to removal to home country in reference to any claimed fear of harm’ were produced by the Department of Home Affairs for each of the thirteen persons aboard the vessel intercepted in August 2019.[99] Each only three pages in length, serious concerns may be validly raised that adequate RSD had not been conducted to meet the threshold of the principle of non-refoulement. Further, in addition to the problem of economic disincentivising of rescue by commercial vessels discussed above, Australia’s maritime domain is also one, unlike the Mediterranean, in which very few non-governmental organisations conduct voluntary humanitarian SAR. Therefore, the responsibility for coastal States to fulfil their obligations is heightened absent a practical responsibility sharing regime with these non-State actors. This further demonstrates that the secrecy with which Operation Sovereign Borders cloaks current maritime interception of asylum seekers, including their maritime expulsion, is a harmful practice which is not conducive to fulfilment of international obligations, or accountability for their violations, and that greater transparency is required to meet this demand.
Other examples of advanced technologies employed by the Australian government include algorithmic assessment of the risk profiles of asylum seekers and the use of satellites to aid in identification of vessels entering Australian territorial waters. However, the use of these technologies is even further hidden by the secrecy of Operation Sovereign Borders meaning scant material has been allowed to reach the public sphere. In relation to the former, algorithmic risk assessment tools are already in operation by contracted private entity Serco in its management of Australia’s onshore and offshore detention centres, as discovered by a visit from the Australian Human Rights Commission to six onshore places of detention.[100] However, a freedom of information request seeking the source code of this algorithm to discover its broader application was denied on 17 December 2018, with the Department of Home Affairs claiming that the Security Risk Assessment Tool (‘SRAT’) “is not a ‘document of an agency’ under section 4(1)”[101] given that the SRAT is the property of Serco itself and therefore outside of the ambit of a freedom of information request, posing new threats to accountability in technologisation through the privatisation and outsourcing of government functions. However, a heavily redacted independent review brief published by the Department of Home Affairs does exist which, based on its references was published at least as recently as November 2018, and explicitly mentions both that “air arrivals are less likely than their maritime counterparts to be deemed refugees” and indicates that inputs into the algorithmic assessment tool will include information beyond what is publicly accessible.[102] In relation to the latter, satellite-aided SAR is another emerging area of technologisation of maritime interception, for which Australia received training from the United Nations in 2005[103] and which arguably saved the life of Abby Sunderland in 2010 through the use of her NASA-developed Personal Locator Beacon (PLB), which transmitted a distress signal to a Search and Rescue (SARSAT) satellite.[104] However, even greater concern is warranted if a system with such advanced capabilities is used instead to facilitate identification of potential asylum seekers for expulsion from Australian territorial waters. These represent the technologies at the further frontier of technologisation in use today, and will be areas expecting further dramatic development in the years to come.
In conclusion, it is simply no longer possible to ignore the use of technology by the Australian government in maritime interception of asylum seekers. A wave of technologisation has swept through Australia and it grows more tidal with each successive, and immensely expensive, approval for the acquisition of new aircrafts, vessels, and advanced technologies to use in within the Australian maritime domain. Not only is technology here to stay, private contractors are flooding the market by developing more advanced weapons of war every year, the effect of which has been to militarise Australia’s response to maritime interception of asylum seekers in direct contravention of its obligations under international human rights and refugee law, and customary international law. Instead, international and domestic oversight bodies, non-government organisations, and the Australian public, must all take a more active role in shaping the way the Australian government uses this technology. Now endowed with an arsenal of powerful tools, both physical and digital, Australia is less constrained by limits to its physical capacity to conduct SAR operations. Therefore, Australia could promote a more uniform application of these intersecting regimes, thereby furthering consistency and predictability for asylum seekers. However the critical obstacle to achieving this very possible future is the lack of transparency created by the secrecy of Operation Sovereign Borders. The call for greater transparency has been made by the UNHCR Executive Committee in Conclusion No. 97, and again in the New York Declaration, in recognition that data on numbers of intercepted people is not sufficient to bring about accountability; “nationalities, gender and numbers of minors intercepted, as well as information on State practice”[105] are at least required to construct a better picture of Australia’s maritime interception practices. Ultimately, rather than conflate the value of these technologies with the malign intent of those who implement them, greater transparency is the key required to unlock the potential trifecta of benefits in technologisation: efficiency, consistency, and accountability.
A Books/Articles
‘Australia Sends Back Sri Lankan Asylum Seekers’, BBC News (online, 9 May 2016) <https://www.bbc.com/news/world-australia-36222959>
Australian Customs and Border Protection Onshore Protection Branch, Non-Refoulement Screening Quality Control and Assurance Framework (Policy document, Australian Government Department of Immigration and Border Protection, February 2015) <https://www.righttoknow.org.au/request/6881/response/20626/attach/3/FA%20201100503%20Document%20for%20Release.pdf>
Australian Government Department of Defence, Annual Report 2012-13 (Annual Report No 2012–13, 31 October 2013)
Australian Government Department of Defence, Annual Report 2019-20 (Annual Report No 2019–20, 21 September 2020)
Barnes, Richard, ‘Refugee Law At Sea’ (2004) 53(1) International & Comparative Law Quarterly 47
Davies, Martin, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea Australia’s Tampa Incident: The Convergence of International and Domestic Refugee and Maritime Law in the Pacific Rim’ (2003) 12(1) Pacific Rim Law & Policy Journal 109
Dechent, Susanna, ‘Maritime Interception: A Snapshot of Australian Policy, Law & Practice, and the Opportunity for Change’ [2017] UTasLawRw 14; (2017) 36(2) University of Tasmania Law Review 68
Doherty, Ben, ‘UN Human Rights Expert Decries Boat Turnbacks as Australia Criticised for Secrecy of “on-Water Matters”’, The Guardian (online, 8 July 2021) <http://www.theguardian.com/australia-news/2021/jul/08/un-human-rights-expert-decries-boat-turnbacks-as-australia-criticised-for-secrecy-of-on-water-matters>
Dorling, Philip, ‘Australians Want Boat Arrivals Treated More Harshly: Poll’, The Sydney Morning Herald (online, 7 January 2014) <https://www.smh.com.au/politics/federal/australians-want-boat-arrivals-treated-more-harshly-poll-20140108-30g97.html>
Enhanced Screening Policy Guidelines (Policy document, Australian Government Department of Immigration and Citizenship, April 2013) <https://www.righttoknow.org.au/request/670/response/2186/attach/3/23%2008%202013%20FA%2013%2006%2000920%20Enhanced%20Screening%20Policy%20Guidelines%20file%20note%20and%20interview%20transcript%20pro%20formas.pdf>
Ghezelbash, Daniel, Refuge Lost: Asylum Law in an Interdependent World (Cambridge University Press, 2018)
Ghezelbash, Daniel et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67(2) International and Comparative Law Quarterly 315
Gleeson, Madeline, Offshore (NewSouth Publishing, 2016)
Goodwin-Gill, GS, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443
Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford University Press, 2007)
Humphrey, Michael, ‘Migration, Security and Insecurity’ (2013) 34(2) Journal of Intercultural Studies 178
Inspections of Australia’s Immigration Detention Facilities 2019 Report (Australian Human Rights Commission, December 2019)
March, Stephanie, ‘Asylum Seekers Handed over to Sri Lankan Police’, ABC News (online, 6 July 2014) <https://www.abc.net.au/news/2014-07-07/morrison-confirms-sri-lankans-returned-after-interception/5575924>
Moreno-Lax, Violeta, The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia (Andrew & Renata Kaldor Centre for International Refugee Law, 2017)
Moreno-Lax, Violeta and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill Nijhoff, 2017)
Nethery, Amy, Brynna Rafferty-Brown and Savitri Taylor, ‘Exporting Detention: Australia-Funded Immigration Detention in Indonesia’ (2013) 26(1) Journal of Refugee Studies 88
Office of the United Nations High Commissioner for Refugees, Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea (18 March 2002)
Office of the United Nations High Commissioner for Refugees, Legal Brief on International Law and Rescue at Sea (Legal Brief, UNHCR, 19 May 2008) <https://www.unhcr.org/en-au/protection/migration/487b47f12/legal-brief-international-law-rescue-sea.html?query=legal%20brief%20rescue%20at%20sea>
Outline of Report 1: Understanding the Concept of Risk in Australian Immigration Detention Centres (Australian Government Department of Home Affairs, 2018) <https://www.homeaffairs.gov.au/foi/files/2019/fa190200466-document-released.pdf>
Papanicolopulu, Irini, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(902) International Review of the Red Cross 491
Pedley, Nick, ‘Australian Authorities Turn Back 37 Sri Lankan Asylum Seekers’, ABC News (online, 28 November 2014) <https://www.abc.net.au/news/2014-11-29/australian-authorities-turn-back-37-sri-lankan-asylum-seekers/5927436>
Rothwell, Donald R, ‘The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’ (2002) 13 Public Law Review 118
Royal Australian Navy Sea Power Centre, ‘Search and Rescue: A Miracle in the South’ [2007] (3) Semaphore
Taylor, Rob, ‘Sailor Abby Sunderland Found Safe in Indian Ocean’, Reuters (online, 11 June 2010) <https://www.reuters.com/article/us-girl-sailor-idUSTRE6595L120100611>
B Reports/Newspaper Articles
The Auditor-General, 2019-20 Major Projects Report: Department of Defence (Auditor-General Report No 19 2020-21, Australian National Audit Office, 30 November 2020)
UNHCR, Global Trends: Forced Displacement in 2020 (18 June 2021)
UNHCR Geneva, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials (UNHCR, 2nd ed, 2011)
United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (UNHCR, 26 January 2007)
Vogl, Anthea, ‘Over the Borderline: A Critical Inquiry into the Geography of Territorial Excision and the Securititsation of the Australian Border’ [2015] UNSWLawJl 5; (2015) 38(1) University of New South Wales Law Journal 114
Whyte, Sarah, ‘Immigration Department Officials Screen Asylum Seekers at Sea “via Teleconference”’, The Sydney Morning Herald (online, 2 July 2014) <https://www.smh.com.au/politics/federal/immigration-department-officials-screen-asylum-seekers-at-sea-via-teleconference-20140702-3b837.html>
Wilson, Dean and Leanne Weber, ‘Surveillance, Risk and Preemption on the Australian Border’ (2008) 5(2) Surveillance & Society 124
Wood, Richard, ‘“I Owe Australia My Life”: Tony Bullimore Reflects on Miracle at Sea’, Nine News (online, 19 March 2017) <https://www.9news.com.au/9stories/tony-bullimore-ever-thankful-to-australia-for-miracle-rescue/a0d4a799-33d7-45e9-a317-375a67d9b0bc>
Wroe, David, ‘Australia to Spend Nearly $7 Billion Buying Unmanned Military Planes from America’, The Sydney Morning Herald (online, 25 June 2018) <https://www.smh.com.au/politics/federal/australia-to-spend-nearly-7-billion-buying-unmanned-military-planes-from-america-20180625-p4znmc.html>
Yaxley, Louise, ‘Government Defends Decision to Return “non-Refugees” to Sri Lanka’, ABC News (online, 19 February 2015) <https://www.abc.net.au/news/2015-02-20/federal-govt-defends-sending-four-men-back-to-sri-lanka/6155204>
C Case Law/Legislation/Treaty law
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Lim & Ors v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1
Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Vadarlis v Ruddock [2001] FCA 1297; (2001) 64 ALD 67
Australian Border Force Act 2015 (Cth)
Conclusion on Protection Safeguards in Interception Measures No. 97 (LIV) - 2003
Convention on the Law of the Sea
Convention Relating to the Status of Refugees
International Convention for the Safety of Life at Sea
International Convention on Maritime Search and Rescue
Maritime Powers Act 2013 (Cth)
Migration Act 1958 (Cth)
Problems Related to the Rescue of Asylum-Seekers in Distress at Sea No. 23 (XXXII) - 1981
Protocol Relating to the Status of Refugees
United Nations New York Declaration for Refugees and Migrants
D Other
‘Algorithms in Use to Determine Threat Risk to Asylum Seekers - a Freedom of Information Request to Australian Border Force’, Right to Know (7 August 2018) <https://www.righttoknow.org.au/request/algorithms_in_use_to_determine_t>
Australian Government Department of Defence, ‘Operation Resolute’, Department of Defence (Website) <https://www1.defence.gov.au/operations/resolute>
Australian Government Department of Defence, ‘Prime Minister, Minister for Defence & Minister for Defence Industry - Joint Media Release - Strengthening Australia’s Maritime Patrol Capability’, Media releases (26 June 2018) <https://www.minister.defence.gov.au/minister/marise-payne/media-releases/prime-minister-minister-defence-minister-defence-industry-joint>
Blenkin, Max, ‘FIRST CONTACT - The Royal Australian Navy Has Taken Its First Tentative Steps into Unmanned Aerial System Operations.’, Australian Defence Business Review (11 January 2018) <https://adbr.com.au/first-contact-the-royal-australian-navy-has-taken-its-first-tentative-steps-into-unmanned-aerial-system-operations/>
Boeing Media Room, ‘Boeing Receives $1.49 Billion Contract for 13 P-8A Poseidon Aircraft’, News Releases/Statements (25 August 2015) <https://boeing.mediaroom.com/2015-08-28-Boeing-Receives-1-49-Billion-Contract-for-13-P-8A-Poseidon-Aircraft>
‘Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1’, Andrew & Renata Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/publication/chu-kheng-lim-and-others-v-minister-immigration-local-government-and-ethnic-affairs-and#footnoteref14_lxpml2f>
Green, Antony, ‘Election Summary’, ABC News <https://www.abc.net.au/elections/federal/2004/guide/summary.htm>
‘Individualised Assessments Conducted at Sea - a Freedom of Information Request to Department of Home Affairs’, Right to Know (4 June 2020) <https://www.righttoknow.org.au/request/individualised_assessments_condu>
‘International Convention on Maritime Search and Rescue (SAR)’, International Maritime Organisation <https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Maritime-Search-and-Rescue-(SAR).aspx>
Morales, Special Rapporteur on the human rights of migrants, Felipe González, ‘Deadly Practice of Migrant “Pushbacks” Must Cease - UN Special Rapporteur’, OHCHR (23 June 2021) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27200&LangID=E>
Reim, Garret, ‘US Navy and Royal Australian Air Force Order 11 Boeing P-8A Poseidons’, Flight Global (2 April 2021) <https://www.flightglobal.com/fixed-wing/us-navy-and-royal-australian-air-force-order-11-boeing-p-8a-poseidons/143168.article>
Royal Australian Air Force, ‘AP-3C Orion’, Intelligence, surveillance and reconnaissance (3 November 2017) <https://www.airforce.gov.au/technology/aircraft/intelligence-surveillance-and-reconnaissance/ap-3c-orion>
Royal Australian Air Force, ‘P-8A Poseidon’, Intelligence, surveillance and reconnaissance (3 November 2017) <https://www.airforce.gov.au/technology/aircraft/intelligence-surveillance-and-reconnaissance/p-8a-poseidon>
Royal Australian Navy, ‘ScanEagle’, The Fleet <https://www.navy.gov.au/unmanned-systems/scaneagle>
Spindler, William, ‘Maritime Conventions Amended to Facilitate Search-and-Rescue at Sea’, UNHCR (20 June 2006) <https://www.unhcr.org/news/latest/2006/6/44a56a724/maritime-conventions-amended-facilitate-search-and-rescue-sea.html>
Teen Sailor Meets NASA Team That Saved Her Life (NASA TV, 25 October 2010) <https://www.youtube.com/watch?v=B5u3tQQOvXQ>
‘The Tampa Affair: 20 Years On’, Andrew & Renata Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/news/tampa-affair-15-years-1>
[1] Vadarlis v Ruddock [2001] FCA 1297; (2001) 64 ALD 67; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229.
[2] Migration Act 1958 (Cth) ss 4(4), 5AA, 46A, 197C.
[3] Australian Border Force Act 2015 (Cth) s 42 (‘ABF Act’).
[4] UNHCR, Global Trends: Forced Displacement in 2020 (18 June 2021).
[5] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into forced 22 April 1954) (‘Refugee Convention’).
[6] Protocol Relating to the Status of Refugees, adopted 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘1967 Protocol’).
[7] Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘UNCLOS’).
[8] International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 2 (entered into force 25 May 1980) (‘SOLAS Convention’).
[9] International Convention on Maritime Search and Rescue, opened for signature 27 April 1979, 1405 UNTS 97 (entered into force 22 June 1985) (‘SAR Convention’).
[10] Executive Committee to the High Commissioner’s Programme, Conclusion on Protection Safeguards in Interception Measures No. 97 (LIV) - 2003, 54th session, UN Doc A/AC.96/987 (10 October 2003) (‘UNHCR ExCom Conclusion No. 97’).
[11] New York Declaration for Refugees and Migrants, GA Res 71, UN GAOR, 71st session, Agenda Items 13, 117, UN Doc A/RES/71/1 (3 October 2016) (‘New York Declaration’).
[12] Richard Barnes, ‘Refugee Law At Sea’ (2004) 53(1) International & Comparative Law Quarterly 47, 48.
[13] Irini Papanicolopulu, ‘The Duty to Rescue at Sea, in Peacetime and in War: A General Overview’ (2016) 98(902) International Review of the Red Cross 491.
[14] Barnes (n 12) 49.
[15] UNCLOS (n 7) art 98.
[16] SOLAS Convention (n 8) annex ch 5, reg 11.
[17] UNCLOS (n 7) art 17; Donald R Rothwell, ‘The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’ (2002) 13 Public Law Review 118, 121–122.
[18] UNCLOS (n 7) art 25(3).
[19] Ibid art 19(2)(g).
[20] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 2007) 279.
[21] See below, 6.
[22] Martin Davies, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea Australia’s Tampa Incident: The Convergence of International and Domestic Refugee and Maritime Law in the Pacific Rim’ (2003) 12(1) Pacific Rim Law & Policy Journal 109, 110.
[23] Ibid 110–112.
[24] SAR Convention (n 9) annex 2.1.4.
[25] Ibid annex 2.1.10.
[26] ‘International Convention on Maritime Search and Rescue (SAR)’, International Maritime Organisation <https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Maritime-Search-and-Rescue-(SAR).aspx>.
[27] William Spindler, ‘Maritime Conventions Amended to Facilitate Search-and-Rescue at Sea’, UNHCR (20 June 2006) <https://www.unhcr.org/news/latest/2006/6/44a56a724/maritime-conventions-amended-facilitate-search-and-rescue-sea.html>.
[28] SAR Convention (n 9) annex 1.3.2.
[29] Office of the United Nations High Commissioner for Refugees, Legal Brief on International Law and Rescue at Sea (Legal Brief, UNHCR, 19 May 2008) 3 [6] <https://www.unhcr.org/en-au/protection/migration/487b47f12/legal-brief-international-law-rescue-sea.html>.
[30] Executive Committee to the High Commissioner’s Programme, Problems Related to the Rescue of Asylum-Seekers in Distress at Sea No. 23 (XXXII) - 1981 32nd session, UN Doc A/36/12/Add.1 (21 October 1981) [3] (‘UNHCR ExCom Conclusion No. 23’).
[31] Office of the United Nations High Commissioner for Refugees, Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea (18 March 2002) [25-26], [30-31].
[32] Refugee Convention (n 5) art 33.
[33] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1984) art 14(1); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3(1).
[34] Susanna Dechent, ‘Maritime Interception: A Snapshot of Australian Policy, Law & Practice, and the Opportunity for Change’ [2017] UTasLawRw 14; (2017) 36(2) University of Tasmania Law Review 68, 78 (‘Maritime Interception’); GS Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23(3) International Journal of Refugee Law 443, 444.
[35] Anthea Vogl, ‘Over the Borderline: A Critical Inquiry into the Geography of Territorial Excision and the Securititsation of the Australian Border’ [2015] UNSWLawJl 5; (2015) 38(1) University of New South Wales Law Journal 114, 127–128 (‘Over the Borderline’).
[36] Given the secrecy on the part of successive Australian governments to detail exactly the distinction between these practices, citing necessary confidentiality to protect national security, these three designated terms, when referred to collectively, will be henceforth termed ‘maritime expulsions’.
[37] United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (UNHCR, 26 January 2007) 4, 12, 17, 19.
[38] UNHCR ExCom Conclusion No. 97 (n 10).
[39] New York Declaration (n 11) 13 [67].
[40] Keely Sullivan, ‘Doubts Rise over Australia’s Offshore Handling of Refugees’, POLITICO (online, 21 June 2021) <https://www.politico.eu/article/doubts-australia-offshore-handling-refugees/>; ‘Denmark Asylum: Law Passed to Allow Offshore Asylum Centres’, BBC News (online, 3 June 2021) <https://www.bbc.com/news/world-europe-57343572>; Jarni Blakkarly, ‘The UK Is Being Urged Not to Copy Australia’s “dangerous” Offshore Detention Policies’, SBS News (23 March 2021) <https://www.sbs.com.au/news/the-uk-is-being-urged-not-to-copy-australia-s-dangerous-offshore-detention-policies/2c08772e-26e5-4917-9f3f-899d7976e374>.
[41] Executive Committee to the High Commissioner’s Programme, Refugees Without an Asylum Country No 15. (XXX) – 1979, 30th session, UN Doc A/34/12/Add.1 (16 October 1979) para (c).
[42] Office of the United Nations High Commissioner for Refugees (n 31) 7 [25].
[43] ‘The Tampa Affair: 20 Years On’, Andrew & Renata Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/news/tampa-affair-15-years-1>.
[44] Davies (n 22).
[45] Rothwell (n 17).
[46] Goodwin-Gill (n 34) 444.
[47] Goodwin-Gill and McAdam (n 20) 282.
[48] Michael Humphrey, ‘Migration, Security and Insecurity’ (2013) 34(2) Journal of Intercultural Studies 178, 179.
[49] Daniel Ghezelbash et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67(2) International and Comparative Law Quarterly 315, 315–316.
[50] Royal Australian Navy Sea Power Centre, ‘Search and Rescue: A Miracle in the South’ [2007] (3) Semaphore 1, 1.
[51] Richard Wood, ‘“I Owe Australia My Life”: Tony Bullimore Reflects on Miracle at Sea’, Nine News (online, 19 March 2017) <https://www.9news.com.au/9stories/tony-bullimore-ever-thankful-to-australia-for-miracle-rescue/a0d4a799-33d7-45e9-a317-375a67d9b0bc>; Rob Taylor, ‘Sailor Abby Sunderland Found Safe in Indian Ocean’, Reuters (online, 11 June 2010) <https://www.reuters.com/article/us-girl-sailor-idUSTRE6595L120100611>; Ibid.
[52] Dean Wilson and Leanne Weber, ‘Surveillance, Risk and Preemption on the Australian Border’ (2008) 5(2) Surveillance & Society 124, 128.
[53] Amy Nethery, Brynna Rafferty-Brown and Savitri Taylor, ‘Exporting Detention: Australia-Funded Immigration Detention in Indonesia’ (2013) 26(1) Journal of Refugee Studies 88, 93.
[54] Felipe González Morales, Special Rapporteur on the human rights of migrants, ‘Deadly Practice of Migrant “Pushbacks” Must Cease - UN Special Rapporteur’, OHCHR (23 June 2021) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27200&LangID=E>; Ben Doherty, ‘UN Human Rights Expert Decries Boat Turnbacks as Australia Criticised for Secrecy of “on-Water Matters”’, The Guardian (online, 8 July 2021) <http://www.theguardian.com/australia-news/2021/jul/08/un-human-rights-expert-decries-boat-turnbacks-as-australia-criticised-for-secrecy-of-on-water-matters> .
[55] Madeline Gleeson, Offshore (NewSouth Publishing, 2016) 17.
[56] Antony Green, ‘Election Summary’, ABC News <https://www.abc.net.au/elections/federal/2004/guide/summary.htm>.
[57] Philip Dorling, ‘Australians Want Boat Arrivals Treated More Harshly: Poll’, The Sydney Morning Herald (online, 7 January 2014) <https://www.smh.com.au/politics/federal/australians-want-boat-arrivals-treated-more-harshly-poll-20140108-30g97.html> (‘Australians Want Boat Arrivals Treated More Harshly’).
[58] Wilson and Weber (n 52) 132.
[59] Vogl (n 35) 129.
[60] Ghezelbash et al (n 49) 330.
[61] Daniel Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World (Cambridge University Press, 2018) 89 (‘Refuge Lost’).
[62] ABF Act (n 3) ss 4, 42.
[63] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Additional Estimates 2019-20, Update Previous Data and Tables Provided to Committees (Australian Border Force answer to question on notice 203, 2 March 2020).
[64] Australian Government Department of Defence, ‘Operation Resolute’, Department of Defence (Website) <https://www1.defence.gov.au/operations/resolute>.
[65] Royal Australian Air Force, ‘P-8A Poseidon’, Intelligence, surveillance and reconnaissance (3 November 2017) <https://www.airforce.gov.au/technology/aircraft/intelligence-surveillance-and-reconnaissance/p-8a-poseidon>.
[66] Royal Australian Air Force, ‘AP-3C Orion’, Intelligence, surveillance and reconnaissance (3 November 2017) <https://www.airforce.gov.au/technology/aircraft/intelligence-surveillance-and-reconnaissance/ap-3c-orion>.
[67] Boeing Media Room, ‘Boeing Receives $1.49 Billion Contract for 13 P-8A Poseidon Aircraft’, News Releases/Statements (25 August 2015) <https://boeing.mediaroom.com/2015-08-28-Boeing-Receives-1-49-Billion-Contract-for-13-P-8A-Poseidon-Aircraft>.
[68] Garret Reim, ‘US Navy and Royal Australian Air Force Order 11 Boeing P-8A Poseidons’, Flight Global (2 April 2021) <https://www.flightglobal.com/fixed-wing/us-navy-and-royal-australian-air-force-order-11-boeing-p-8a-poseidons/143168.article>; Royal Australian Air Force (n 66).
[69] The Auditor-General, 2019-20 Major Projects Report: Department of Defence (Auditor-General Report No 19 2020-21, Australian National Audit Office, 30 November 2020) 81.
[70] Australian Government Department of Defence, Annual Report 2019-20 (Annual Report No 2019–20, 21 September 2020) 46.
[71] Australian Government Department of Defence, ‘Prime Minister, Minister for Defence & Minister for Defence Industry - Joint Media Release - Strengthening Australia’s Maritime Patrol Capability’, Media releases (26 June 2018) <https://www.minister.defence.gov.au/minister/marise-payne/media-releases/prime-minister-minister-defence-minister-defence-industry-joint>.
[72] David Wroe, ‘Australia to Spend Nearly $7 Billion Buying Unmanned Military Planes from America’, The Sydney Morning Herald (online, 25 June 2018) <https://www.smh.com.au/politics/federal/australia-to-spend-nearly-7-billion-buying-unmanned-military-planes-from-america-20180625-p4znmc.html>.
[73] Senate Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Budget Estimates 2021-22, Capability acquisition project schedules (Department of Defence answer to questionon notice 386, 13 July 2021).
[74] Australian Government Department of Defence, ‘Annual Report 2019-20’ (n 70) 152.
[75] Royal Australian Navy, ‘ScanEagle’, The Fleet <https://www.navy.gov.au/unmanned-systems/scaneagle>.
[76] Australian Government Department of Defence, Annual Report 2012-13 (Annual Report No 2012–13, 31 October 2013) 159.
[77] Max Blenkin, ‘FIRST CONTACT - The Royal Australian Navy Has Taken Its First Tentative Steps into Unmanned Aerial System Operations.’, Australian Defence Business Review (11 January 2018) <https://adbr.com.au/first-contact-the-royal-australian-navy-has-taken-its-first-tentative-steps-into-unmanned-aerial-system-operations/>.
[78] Senate Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Budget Estimates 2017-18, ABF Vessels - Internal Product (Australian Border Force answer to question on notice 36, 22 May 2017).
[79] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Additional Estimates 2018-19, Ocean Class Patrol Days (Department of Home Affairs answer to question on notice 297, 1 April 2019)
[80] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Budget Estimates 2018-19, Detention of asylum seekers in maritime interception (Department of Home Affairs answer to question on notice 44).
[81] Lim & Ors v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1, [28] (Brennan, Deane and Dawson JJ).
[82] ‘Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1’, Andrew & Renata Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/publication/chu-kheng-lim-and-others-v-minister-immigration-local-government-and-ethnic-affairs-and#footnoteref14_lxpml2f>.
[83] Sarah Whyte, ‘Immigration Department Officials Screen Asylum Seekers at Sea “via Teleconference”’, The Sydney Morning Herald (online, 2 July 2014) <https://www.smh.com.au/politics/federal/immigration-department-officials-screen-asylum-seekers-at-sea-via-teleconference-20140702-3b837.html>.
[84] Ibid.
[85] Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill Nijhoff, 2017) 265–266; Violeta Moreno-Lax, The Interdiction of Asylum Seekers at Sea: Law and (Mal) Practice in Europe and Australia (Andrew & Renata Kaldor Centre for International Refugee Law, 2017) 723.
[86] UNHCR Geneva, Rescue at Sea, Stowaways and Maritime Interception: Selected Reference Materials (UNHCR, 2nd ed, 2011) 174 [31].
[87] Ghezelbash (n 61) 84.
[88] Maritime Powers Act 2013 (Cth) s 72(4).
[89] CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, [367] (Gageler J).
[90] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Additional Estimates 2019-20, Operation Sovereign Borders (Department of Home Affairs answer to question on notice 206, 8 May 2020).
[91] Enhanced Screening Policy Guidelines (Policy document, Australian Government Department of Immigration and Citizenship, April 2013) <https://www.righttoknow.org.au/request/670/response/2186/attach/3/23%2008%202013%20FA%2013%2006%2000920%20Enhanced%20Screening%20Policy%20Guidelines%20file%20note%20and%20interview%20transcript%20pro%20formas.pdf>.
[92] Australian Customs and Border Protection Onshore Protection Branch, Non-Refoulement Screening Quality Control and Assurance Framework (Policy document, Australian Government Department of Immigration and Border Protection, February 2015) 2 <https://www.righttoknow.org.au/request/6881/response/20626/attach/3/FA%20201100503%20Document%20for%20Release.pdf>.
[93] Ghezelbash (n 61) 84.
[94] Nick Pedley, ‘Australian Authorities Turn Back 37 Sri Lankan Asylum Seekers’, ABC News (online, 28 November 2014) <https://www.abc.net.au/news/2014-11-29/australian-authorities-turn-back-37-sri-lankan-asylum-seekers/5927436>.
[95] Louise Yaxley, ‘Government Defends Decision to Return “non-Refugees” to Sri Lanka’, ABC News (online, 19 February 2015) <https://www.abc.net.au/news/2015-02-20/federal-govt-defends-sending-four-men-back-to-sri-lanka/6155204>.
[96] ‘Australia Sends Back Sri Lankan Asylum Seekers’, BBC News (online, 9 May 2016) <https://www.bbc.com/news/world-australia-36222959>.
[97] Australian Border Force (n 63).
[98] Stephanie March, ‘Asylum Seekers Handed over to Sri Lankan Police’, ABC News (online, 6 July 2014) <https://www.abc.net.au/news/2014-07-07/morrison-confirms-sri-lankans-returned-after-interception/5575924>.
[99] ‘Individualised Assessments Conducted at Sea - a Freedom of Information Request to Department of Home Affairs’, Right to Know (4 June 2020) <https://www.righttoknow.org.au/request/individualised_assessments_condu>.
[100] Inspections of Australia’s Immigration Detention Facilities 2019 Report (Australian Human Rights Commission, December 2019).
[101] ‘Algorithms in Use to Determine Threat Risk to Asylum Seekers - a Freedom of Information Request to Australian Border Force’, Right to Know (7 August 2018) <https://www.righttoknow.org.au/request/algorithms_in_use_to_determine_t>.
[102] Outline of Report 1: Understanding the Concept of Risk in Australian Immigration Detention Centres (Australian Government Department of Home Affairs, 2018) 4, 10 <https://www.homeaffairs.gov.au/foi/files/2019/fa190200466-document-released.pdf>.
[103] Committee on the Peaceful Uses of Outer Space, Report on the United Nations/Australia Training Course on Satellite-Aided Search and Rescue, UNGAOR, UN Doc A/AC.105/851 (13 May 2005).
[104] Teen Sailor Meets NASA Team That Saved Her Life (NASA TV, 25 October 2010) <https://www.youtube.com/watch?v=B5u3tQQOvXQ>.
[105] UNHCR Geneva (n 86) 96.
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