In New Zealand’s 2019 “Wellbeing” budget, $25 million was allocated to maritime mass arrival prevention, described as an initiative aimed at preventing asylum seekers “departing for New Zealand”. But how does the government justify such measures when it says it’s committed to upholding the right of asylum – the right for people to cross borders, to seek protection from persecution and torture?
According to government ministers, it’s a humanitarian act. They’re protecting vulnerable people from people smugglers and therefore saving lives. Foreign minister Winston Peters said, “If you allow people to get away and traffic in people, the chance of them dying on the high seas is huge… and we have a social conscience.” But this rhetoric about saving lives at sea and the evils of people smuggling is the very same used by successive Australian governments to justify their policy towards asylum seekers, which has been condemned internationally.
Since late 2013, Australia’s policy has been to board asylum-seeker vessels with armed personnel and force passengers back in the direction of their departure, often in less seaworthy boats or life rafts, or hand them directly to the governments from which they fled. Some returning vessels have gone missing; others have sunk. According to the UN’s global expert on extrajudicial, summary or arbitrary executions, Australia’s “push-backs” of asylum-seeker boats are illegal under international law and “may intentionally put lives at risk”.
The effect of the policy is to deny refugees protection in Australia and thwart their attempts to flee persecution. Between 2009 and 2013, around 40,000 asylum seekers (mostly from Afghanistan, Sri Lanka and Iran) arrived by sea to Australia. Nearly all (90%) were found to meet Australia’s criteria for protection when Australia started intercepting the boats. PM Jacinda Ardern has stated that “we have been involved for a number of years as a country working alongside Australia”, but how far does this cooperation go? Does New Zealand also support the interceptions of asylum seekers at sea to stop their arrival?
Given Australia’s policy, it would follow that refugees may seek asylum elsewhere like New Zealand. As former prime minister John Key stated, “of course [New Zealand is] a long way away, it’s much further to Australia, it’s harder to get to, but in the end, Australia is getting closed down as an option”. Vessels with asylum seekers have successfully travelled similar or greater distances, such as in 2010 when 492 asylum seekers arrived in Canada after a three-month voyage from Asia, or more recently in February 2019 when 72 asylum seekers arrived in Reunion off the coast of Africa after travelling some 4000km – the most recent of five such journeys in the previous 12 months.
The case that most clearly sheds light on these questions is the ill-fated voyage of the Andika in May 2015. The available evidence suggests this boat carrying 65 asylum seekers was in fact travelling towards New Zealand and was well enough provisioned to make it, had it not been intercepted. Contrary to government claims, it was the interception and ‘turnback’ of the boat that put these vulnerable people’s lives at risk – not people smugglers or dangerous seas.
The voyage garnered considerable media interest when Indonesian police alleged the Australian government paid a significant amount of cash to the ship’s crew before the asylum seekers were forced back. A number of investigations followed: one presented in a report by Amnesty International, ‘By hook or by crook: Australia’s abuse of asylum-seekers at sea,’ released in October 2015. Another culminated in a 2017 documentary film, Stop the Boats – The lie of saving lives at sea, by journalists Nicolai Jung and Phil Miller.
Amnesty International researchers found that the Andika departed from Indonesia on 5 May and was first intercepted in international waters by the Australian forces on 17 May. Despite being told by the crew they did not have the right to board, Australian forces did so, inspecting the boat’s equipment and food supplies before disembarking. Two ships continued to follow the boat, until a second interception took place five days later on 22 May – according to the crew it was in the Arafura Sea, outside Australian jurisdiction.
The second interception saw the passengers and crew removed from their boat, forced onto two smaller, poorly equipped boats and pushed back to Indonesia. One of the boats ran out of fuel mid-voyage, forcing the passengers and crew to make a dangerous transfer onto the other boat. Bereft of adequate equipment, they shipwrecked off an Indonesian island on 31 May; they were rescued by the local people. An Indonesian police officer told media that sending the asylum seekers back on two boats with just a drum of fuel each was akin to “a suicide mission”.
One passenger, who told Amnesty International that he had 10 years of seafaring experience, said: “I don’t know why [they] stopped us. We didn’t enter Australian territory, we had enough fuel, food, and everything to reach New Zealand – the boat was in good condition.” He said he was confident they could have reached their destination, and none of the asylum-seekers heard doubts expressed by crew members either. The passengers and crew said at no time before they were boarded were they in distress and they never put out a distress call.
The justification for the interception was saving lives at sea. John Key said the Andika had not continued towards New Zealand essentially because “a lot of people got sick on the boat and so then they ended up radioing for help”. Major General Andrew Bottrell, commander of Operation Sovereign Borders, had a slightly different account: “The prevailing weather conditions at the time were rough and forecast to deteriorate significantly… had the vessel master not sought our assistance when he did so, I held serious concerns for the continued safety of all on board.”
The rhetoric of “saving lives at sea” serves not only as a moral justification for boat interceptions, but also a legal one. When asked why New Zealand couldn’t turn boats around like Australia, John Key said it was because he understood “the legal settings that [Australia] have”, and “even they have limits to what they can do”. Key said “you can’t just go on board the boat”, but what happens is “[boat occupants] put out distress signals half the time, they may sink the boat, they do all sorts of things in the middle of the ocean… so they have to be rescued”.
According to the Kaldor Centre for Refugee Law, “[u]nder the UN Convention on the Law of the Sea… vessels on the high seas… are subject to the exclusive jurisdiction of the State in which the vessel is registered”, and that apart from limited situations “such as to prohibit the transportation of slaves or to repress piracy”, another state is only allowed to board a boat “if is a stateless vessel” or “in the case of a rescue operation”.
Following revelations about the boats’ voyages, the New Zealand media condemned the “very likely” Australian payment for people smuggling, but there was limited scrutiny on New Zealand’s role in the interception. The Green Party, which sat on the Intelligence and Security Committee, demanded the government publicly confirm or deny whether the NZSIS and GCSB had been tracking the boat, stating: “If John Key has used our spy agencies to track asylum seekers, then they are complicit in violating international law, the Refugee Convention.” Only Keith Locke, a former Green MP, raised “the question of whether the Australian navy is under instructions from the New Zealand government to intercept any such boat and send it back to Indonesia”.
On 2 June 2015, John Key said that “we were advised a couple of weeks back” about the boat heading to New Zealand and had been receiving daily updates from ODESC. This would mean the New Zealand government was aware of the boat before its second interception on 22 May. The journey of Andika was also raised in a six-monthly performance report to ministers. In discussing the New Zealand government’s response, it was noted there was “an identified gap between the prevention and disruption phases”.
Soon after being forced back to Indonesia, the refugees from the Andika appealed to New Zealand for help. In opposition, then Labour leader Andrew Little said authorities should investigate whether the group were genuine refugees, and if so, consider processing them as part of New Zealand’s quota. A number of Green MPs called for the passengers to be brought to New Zealand to be processed – an act that would “meaningfully demonstrate the… government is committed to uphold the spirit of the Refugee Convention, and is not complicit in Australia’s much condemned Operation Sovereign Borders”. The election of a new Labour, Green and NZ First government therefore brought hope to the asylum seekers. But despite being recognised by the UNHCR as refugees, the handful of passengers that have resisted pressure to return to their home countries remain stranded in Indonesia with few rights.
The case of the Andika casts serious doubts on government claims that “saving lives at sea” is the motivation for stopping asylum seekers. It also raises serious questions about New Zealand’s role in boat interceptions. Immigration minister Iain Lees-Galloway has said the $25 million budget allocation is going towards preventing the departure of boats rather than their interception – distancing the government from Australia’s ‘turnbacks’ policy, but not necessarily ruling out a New Zealand role in it. The government could demonstrate its opposition to boat interceptions by resettling the remaining passengers of the Andika in New Zealand – a concrete demonstration of its social conscience and respect for the right of those facing persecution to escape to safety.