Is the Current Asylum Seeker Situation Correctly Described as a War?

Wednesday 15 January 2014 @ 11.17 a.m. | Immigration

In an article published in The Age, the Immigration Minister is quoted as saying: ''We are going to hold the line, we are going to protect the borders, . . ." and elsewhere has said: "This battle is being fought using the full arsenal of measures,  .  .  .''

The Prime Minister, in defence of his government's secrecy on the matter, has referred to the asylum seeker issue as a ''battle''and gone on to say, ''if we were at war we wouldn't be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves''.

In recent days, the media has been filled with commentary responding to the description by the Prime Minister of the current Australian government's asylum seeker policy (known as "Operation Sovereign Borders") as being a "war" which therefore, justifies the involvement of the military (namely, the navy and other parts of the defence forces) and along with it justifies the need to keep matters secret and away from public knowledge and discussion.

In the light of this, it is interesting to consider technically under our laws what is meant by the term "war" and whether in fact the current asylum seeker issue can be described as a "war".

The Legal Meaning of War

The power to declare war derives from the Commonwealth Constitution, clause 51 which sets out the legislative powers of the Commonwealth and indicates that the Commonwealth Parliament shall:

"subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
 . . . (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth . . ."

The Oxford Dictionary describes a war as being: "a state of armed conflict between different countries or different groups within a country" while the Defence Act 1903 (Cth) in s 4 defines "war" as meaning: "any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force".

The Defence Act 1903 (Cth) also in s 4 defines "Time of War" as "any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists".

Is the Asylum Seeker Policy Legally a War?

From the words of the definition of "war" in the Defence Act 1903 (Cth) s 4 it would seem clear that to consider a situation to be a war requires an "invasion" or "apprehended invasion" and that such invaders need to be either any "enemy" or an "armed force".

On the need for an "invasion" or "apprehension of an invasion" to exist it would seem a dubious proposition to hold that the arrival of even several thousand asylum seekers over several years in non-combatant vessels of equally dubious sea worthiness constitutes an invasion.

Further, on the requirement for an "enemy" or an "armed" force to exist it seems unlikely one could argue that asylum seekers are an enemy given that Australia is a signatory to the UN Convention on Refugees and recognises the rights put forward in that convention of people to escape persecution and seek asylum, by implication, it would seem to convey the opposite view, and as for an "armed force", to date, no asylum seeker has ever been found to be armed or to have arrived with the purpose of taking up arms.

Further, when one considers the definition of what constitutes a "Time of War" under the Defence Act 1903 given that no proclamation of the existence of war or danger thereof exists, the operational secrecy justifications for withholding information also seem open to question.

Conclusion

Whether the current asylum seeker situation is correctly described as "war" or not, it is being treated as such by the Government and those in the defence services, as evidenced from The Age's report today indicating:

"Navy personnel carrying out border protection were quietly stripped of some workplace safety protections and obligations last month in an apparent preparation for dangerous operations such as turning back boats."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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