The inquiry into the Customs and Other Legislation Amendment Bill 2016
On 17 March 2016, the Senate referred the Customs and Other Legislation Amendment Bill 2016 [Provisions] to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The inquiry and the Bill lapsed because of the election in 2016.
This Bill replicates Schedule 4 of the Migration and Maritime Powers Amendment Bill (No 1) 2015 (the earlier Bill). RCOA made a submission on this earlier Bill and this submission restates our opposition to these provisions.
Our key concern
Our principal concern in relation this Bill is that it threatens to undermine our foreign relations by appearing to authorise the turnbacks of boats into another country’s waters, if the Minister declares (even wrongly) that this is consistent with the law of the sea.
Schedule 4 of this Bill appears to authorise the exercise of maritime powers in the territorial waters and archipelagic waters of another country. RCOA is concerned that this is intended to authorise the extension of Operation Sovereign Borders into Indonesian territorial waters, potentially in breach of Australia’s obligations under international law.
RCOA notes that the stated intention is that this only authorises the exercise of powers permitted under the law of the sea, such as ‘innocent passage’ or ‘transit passage’. We note that, while the law of the sea would not appear to permit any use of the detention or related interdiction powers in relation to Operation Sovereign Borders, this is not made clear in the provision.
Further, the provision does not in fact require that the exercise of powers can be justified under the law of the sea. Instead, all that is required is that the officer or the Minister “considers” that it is permitted under the law of the sea, whether or not it is in fact permitted.
Some activities under Operation Sovereign Borders such as turning back boats within territorial waters of another State would not appear to be consistent with the United Nations Convention of the Law of the Sea (UNCLOS). As a result, these provisions put Australia at risk of violating our obligations under international treaties as well as the fundamental principle that a State must interpret and perform treaty obligations in good faith.
The Bill also increases Ministerial discretion to declare that turnbacks are consistent with the Convention. This raises real risks of refoulement which is inconsistent with Australia’s international obligations.
RCOA recommends that this Bill be amended to ensure that it is consistent with international law.