Coalition's new initiative to combat people-smuggling: Operation Sovereign Borders

Asylum-seeking in its current manifestation is primarily a strategic policy issue with domestic ramifications, not vice versa. Not appreciating this strategic context continues to cause most of the misunderstandings so undermining informed and effective public debate. Even more importantly, it continues to hamper the implementation of effective solutions for combatting people-smuggling, the processing of asylum-seekers and the protection of genuine refugees. We have also long lamented that both sides of politics tend to put perceived short-term electoral advantage ahead of their responsibility to protect the long-term national interest regarding Australia's strategic security and national sovereignty.

 

Background

The Australia Defence Association's comprehensive discussion paper on asylum and refugee issues addresses the strategic, practical, legal and moral contexts and complexities involved with border security in considerable detail.

We continue to note that asylum seeking and refugee matters are primarily strategic policy issues with domestic ramifications, not vice versa, and must be primarily resolved by strategic policy measures.

These matters comprise just one part of our broader and longer-term strategic relationships with neighbouring countries and our broader region collectively.

It is also our view that:

  • Much public discussion of such issues is skewed because many disputants incorrectly assume it is wholly or chiefly a domestic policy matter and a largely social policy one at that.
  • The political polarisation of public argument — and the emotive approaches or one-sided moral judgements adopted by many disputants on all sides — largely occur because the actual strategic policy context is ignored or discounted.
  • Combatting people-smuggling and reducing the risk of drownings at sea requires a multi-pronged approach and in a strategic context. Not reliance on any one measure, type of measure or level of measure alone.
  • The evidence clearly shows that various demand-pull factors within Australia and Indonesia continue to outweigh perceived global "push" factors in causing the marked increase in the market for people-smuggling since 2009.

Since 2006, for example, the ADA has been a major contributor to informed debate on the place of Temporary Protection Visas in the multi-pronged approach required.

When consulted in early 2008 we advised the new Rudd Government not to withdraw the use of TPVs and certain other processing, and crime-deterrence, measures.

We expressed a strong concern generally about Australia needing to project national resolution in what was a contest of wills strategically with the people-smugglers and those corrupt Indonesian officials helping them in particular. And with the bureaucratic and diplomatic inertia, and highly subjective cultural attitudes to the problem, within Indonesian society in general.

The ADA also counselled specifically that a resurgence of people-smuggling would be likely to occur and that it would then be much more difficult to reinstitute previous measures after a hiatus. Both strategically and operationally.

This resurgence duly occurred and in much greater and increasing numbers over the last three years in particular.

As the above discussion paper records, the ADA has continued to note these issues publicly and discuss why this increase has happened. We have also recommended solutions based on the overall strategic policy context of the problem, rather than treat it as wholly or primarily an Australian domestic policy issue..

 

Summary

The Australia Defence Association has no objection to much of the new Coalition plan Operation Sovereign Borders.

Indeed we have long highlighted the difficulties caused by the extensive inter-agency co-ordination inherent in securing Australia's borders.

In terms of the new Coalition plan to counter the resurgence of people-smuggling we have, however, some concerns about three particular aspects:

  • the domestic and international risks, in a strategic setting, of appearing to "militarise" what remains in terms of Australian law an unequivocally civil function;
  • whether there has been sufficient consideration of the risks involved with dragging our defence force into party-political and community controversy; and
  • the unfortunate ambiguity in the plan about whether the civil law enforcement function involved is to be subject to military "command" or turned into a "military operation", or would be just an exercise of civil leadership by a seconded military officer.

We therefore seek clarifications that are not provided by the plan itself or in subsequent and somewhat contradictory explanations by some of its proponents.

 

Risk of appearing to "militarise" a civil matter and in a strategic setting

In both perception and reality it is surely not conducive to informed public debate domestically, or Australia's reputation and diplomacy internationally, to “militarise” discussion of what remains unequivocally an Australian civil law enforcement function.

No matter how serious our current and future border security problems might be, or be perceived to be, at any one time. 

This is especially so because:

  • Such law enforcement measures in a border security context necessarily involve Australia’s already complex strategic and diplomatic relations with our regional neighbours.
  • These international relations are occurring during peacetime and with no serious or informed suggestion that military hostilities might be risked. 
  • Public discussion of border security matters generally is often ill-informed, emotive, biased or politically polarised across the Australian community.
  • During such civil law enforcement operations, elements of our defence force have been long and appropriately used to supplement but not supplant relevant civil agencies in their law enforcement responsibilities. Such as where the ADF already assists:
    • counter-smuggling measures of all types undertaken by the Australian Customs and Border Protection Service;
    • anti-poaching measures by the Australian Fisheries Management Authority; and
    • certain offshore control measures over unauthorised entry to Australia conducted by the Department of Immigration and Citizenship. 

Moreover, ADF (and Customs) boarding parties tackling people smuggling now need to be armed for self-protection and the protection of others aboard vessels intending an unauthorised entry into Australia.

But the fundamental distinction remains that Operation Resolute now — and an Operation Sovereign Borders-type activity in the future — are still not the type of national security matters requiring the use of military force by the ADF in defence of Australia. Certainly not military force as authorised by the Defence Act in Australian law or as governed by the self-defence or collective security provisions of the UN Charter in international law.

The principle of civil primacy for domestic law enforcement remains paramount. Even where the ADF helps the relevant civil authorities, such border law enforcement operations remain a civil matter in both law and practice (including leadership and departmental responsibility). And in the ADF's proper legal subordination to the relevant civil authority it is assisting. 

In summary:

  • Controlling asylum-seeker flows is a civil law enforcement problem, not a matter requiring the use of military force in the defence of Australia.
  • We need to avoid giving the impression that it is a military problem, both domestically and internationally.
  • Potential public confusion about essential defence force subordination to civil authority, and consequent party-political controversy about ADF tasking and activities, should always be forestalled or otherwise avoided.

 

Particular care about party-political controversy always needed when using our defence force to supplement civil law enforcement

The Australia Defence Association also has some concerns about the heightened risk of dragging our defence force into party-political controversy.

Border security duties are hard enough already, operationally, physically and psychologically. Furthermore, the defence force (and Customs) personnel involved already cop much unfair, untrue and at times vicious abuse from polemiscists (on both sides) active in the issue.

At the very least, further clarification of what the plan is intended to mean is needed to prevent potential community confusion and worse.

The ADA has long supported the Westminster-system convention that the use of defence force elements to assist with domestic civil law enforcement (but not other civil assistance matters such as disaster relief) should be minimised not maximised — no matter whether force or non-force assistance to such civil law enforcement is involved.

The principle of continued civil paramountancy during defence force assistance to civil law enforcement is absolutely sacrosanct in the Westminster system — and needs to be preserved in both fact and public perception. (Martial law is not constitutionally or legally possible in Australia in both peacetime and wartime).

For example, as we noted in our concern about continued military leadership of the intervention into Northern Territory indigenous communities — when it was widely agreed that it was no longer an emergency — some broader lessons from that intervention are telling.

  • The ADF was wrongly dragged into substantial party-political and community controversy. Much public confusion about our defence force and its role, and considerable ill-informed criticism of the ADF, unfortunately resulted.
  • This was partly because some Australians misunderstood the ADF's (unarmed) role of logistic support to the civil authorities concerned.  
  • A major cause, however, resulted from the intervention's separate and civil leadership on the ground by a senior military officer (on secondment from the defence force and acting as a civil official) when the former senior police officer originally chosen for the role declined the appointment. This apparent "military" leadership (when this was not the case) of a wholly civil function was justified by the then government as both a temporary measure and one driven by the urgency of the intervention being an emergency.
  • Controversy also arose due to some critics deliberately choosing to misrepresent the defence force's (non-force) support role and activities, and the intervention's on-the-ground leadership by a seconded military officer, for politically-partisan or other polemical purposes.

Such types of misrepresentation and controversy remain a continual risk in Australian political discourse. They harm public confidence in our defence force as a necessarily apolitical institution.

Even more importantly in terms of informed debate about Australia's defence and strategic security, such controversies unfortunately cause some Australians to irrelevantly and/or irrationally question the real role of our defence force. Or irrationally question the intellectual and financial investments needed to sustain Australia's strategic security and an effective ADF. 

Aspects of the proposed Coalition plan concerning changed border security arrangements need deeper consideration to forestall such pitfalls.

As background to help such reconsideration we note the longstanding bipartisan agreement about the following four constitutional and public policy conventions concerning our defence force: 

  • As a constitutional and legal principle the ADF should not be used for civil law enforcement unless it is a real emergency and the relevant civil agencies do not have the specialist resources to cope. Especially where such defence force assistance might involve the use of armed force. Chiefly because civil policing functions are based on the minimum-force principle whereas military force is necessarily based (legally, culturally and operationally) on using maximum force. 
  • As institutional, strategic and budgetary principles, our defence force should be enabled to concentrate on its key role of national defence. Not have its capabilities and activities unduly diverted to peripheral or wholly non-defence roles. 
  • It is a longstanding Westminster-system convention that our defence force is an apolitical institution that defends all Australians equally. National understanding of this, however, needs to be reciprocated, respected and reinforced. This has long meant not placing the ADF in situations where it risks being the focus of party-political or other serious community controversy. 
  • A bedrock Westminster-system convention to "keep the gun out of our politics" (as in all liberal democracies) means it is always necessary to keep party-politics out of our military. This is why undertaking its duties in a non-partisan matter is so embedded in the institutional and professional cultures of our defence force. It is also why the ADF should not be used for partisan purposes or where there is a high risk that by doing so our defence force will be perceived as partisan.

In summary:

  • The use of our defence force to assist with civil law enforcement remains an extraordinary measure and should never be regarded as an ordinary activity for the ADF.
  • Border security duties are hard. The ADF already receives much inaccurate and unfair criticism when rendering such assistance.
  • Every effort must be made to avoid involving our defence force in situations of party-political or significant social controversy. Particularly for perceived or real electoral benefit.

 

Military leadership of a civil function?

It is not clear in either the plan or subsequent contradictory explanations whether the proposed (and admirable) inter-agency effort is to be commanded in the military (and legal) sense by a military officer as a military operation, or just led in the civil sense by a military officer seconded from the ADF. Or indeed whether this command or leadership will be exercised through a specially constituted military headquarters or just a civil inter-agency structure modelled on one.

This is a pity in an area where, historically, perception can be as important as actuality. Especially in terms of public confidence and trust.

If, as stated, "the scale of the problem requires the discipline and focus of a targeted military operation” then what needs unambiguous clarification is whether it is military command and/or a military operation that are intended, or just organisational leadership by a seconded military officer in the existing or a reformed civil setting.

If military command or an overall "targeted military operation" are not intended, then the option of leadership by a former senior military officer is surely worth discussion — or explanation as to why such an option has been apparently rejected.

Particularly when the ambiguously stated or implied intention of the plan is for the senior officer to command rather than just lead the operation. And where the specifics of, and legal basis for, such command are not addressed in the plan. 

Moreover, the plan —and some subsequent ambiguous comments by Coalition spokesmen — envisage a senior ADF officer answering directly as a commander, for predominantly non-military and wholly civil law enforcement functions, to the Minister for Immigration and Citizenship. And not even to the Minister chiefly responsible for border protection matters, the Minister for Home Affairs.

Rather than through the statutory chain of command for military operations to the Chief of Defence Force and then to the civil control of the Minister for Defence (and then to other Ministers if ADF assistance to their portfolios is involved).

Despite some subsequent claims to the contrary and perhaps obfuscation by several of the plan's proponents, the proposals are fundamentally different to the current command arrangements governing the ADF's Border Protection Command and its existing support to the relevant civil authorities (where such authorities remain paramount for the civil functions involved).

If overall military command of all border security functions is intended, the proposed plan, as expressed, seems to pose obvious obstacles given the Defence Act, the Act's underlying constitutional provisions, and the necessary Westminster conventions separating military command (operationally) and civil-control-of-the-military (constitutionally).

In summary:

  • Whether "military command" is intended, or not, is not clear in the plan and requires unambiguous explanation.
  • Military command of what remains clearly a civil law enforcement operation would pose several constitutional, statutory and practical obstacles.
  • Perhaps such complexities also beg first-principles reconsideration of why a serving three-star military officer would be needed to lead (or command) such a multi-agency (and still civil law enforcement) operation anyway.

 

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