This article is more than 3 years old

This article is more than 3 years old

Previously classified documents about Australia’s asylum seeker turnback missions have been released during a landmark court battle, but parts of them will remain secret after a tribunal ruled they would “subvert” operations.



The administrative appeals tribunal has ruled that many documents sought under freedom of information laws on boat turnbacks will remain secret in part because they could damage the security of the commonwealth and its international relations.

In 2014 the Guardian Australia journalist Paul Farrell sought access to documents about Australia’s asylum seeker turnback operations between November 2013 and February 2014.

Australia's government muddles its way through to hide details of boat turnbacks | Paul Farrell Read more

During this period a number of turnback operations occurred, including at least one that led to Australian vessels breaching Indonesian waters. Four watch logs were identified within scope, along with another 11 documents that were internal requests, cables, briefing papers and emails relating to turnback operations.

Farrell took the matter to the information commissioner, who ruled only one document could be partially released. But Australia’s immigration department appealed to the administrative appeals tribunal, which began hearings in August 2016

The tribunal’s deputy president, Dennis Cowdroy, ruled the material “could be used by people smugglers to subvert or otherwise render useless the methods adopted … to prevent people smuggling operations and thereby render vulnerable the integrity of the Australian borders against the influx of illegal entrants.

“Insofar as Australia’s international relations are concerned, there is material which shows that Indonesia does not approve of turnback operations. The disclosure of material could prejudice such relations by revealing the places at which turnback operations occur and the methods used in such operations.”

He also found that releasing all the documents could cause a “substantial adverse effect” on the government’s turnback operations.

Existence of 'pivotal' letter from Scott Morrison on boat turnbacks revealed Read more

But Australia’s immigration department had already agreed to release parts of all 15 documents during the course of the proceedings, far more than the information commissioner had previously found should be released.

They have disclosed to Guardian Australia a series of documents relating to the turnback missions that provide insight into how the government began to implement the policy, including:

A previously secret letter from then immigration minister Scott Morrison’s first order to execute asylum seeker boat turnbacks at sea. The letter sets out a request from Morrison to then Lieutenant-General Angus Campbell to begin the operations.

Angus Campbell’s subsequent order surrounding the turnbacks that authorised commanders to undertake turnback operations, subject to an “on-scene” commander’s assessment that the operation can be safely undertaken.

A series of on board ship logs from customs vessels involved in turnback operations, and the orders from the government’s command centres permitting them. Many crucial details such as the names of vessels and the location of asylum seeker interceptions are redacted in these documents.

Parts of a policy document that sets out in what circumstances asylum seeker turnback operations are to occur.

The policy document from the quasi-military taskforce sets out new details about some of the risks of turnback operations.

All personnel must act, behave and communicate professionally, honourably Policy document

“Previous experience indicates that it is likely ACBPS [Australian Customs and Border Protection Service] and ADF [Australian defence force] personnel will be collectively and individually confronted with a range of complex situations, including hazards of a physical and/or psychological nature and ethical and moral dilemmas between enforcement and humanitarian,” the document said.

“Therefore all personnel must act, behave and communicate professionally, honourably, clearly and with self-control and discipline. To this end, no matter how PII [potential illegal immigrant] might behave in reaction to an ETB [enforced turnback], they are not adversaries and must never be portrayed as such. The sensitivity of ETB in the political and public domains cannot be overemphasised.”

The document stressed the importance of maintaining strict record-keeping and response measures to prevent “damaging strategic and operational consequences of unauthorised release of official information and unauthorised public commentary”.

Australia’s practice of turning back asylum seeker vessels bound for its shores has drawn heavy domestic and international criticism. The government has also adopted a blanket policy of secrecy for “on-water” matters, citing operational reasons for refusing to disclose when and how turnback operations are occurring.

During the course of the freedom of information case the head of Operation Sovereign Borders, Andrew Bottrell, gave evidence that hiding details of asylum seeker boat turnbacks from the Australian public was essential to protect the security of the commonwealth, because it helped “educate … potentially illegal immigrants”.

The tribunal found that although there had been “inadvertent incursions” into Indonesian waters it did not mean the turnbacks were unlawful.

Cowdroy also ruled that the merits of the government’s turnback operations shouldn’t be considered in the course of a freedom of information matter.

“That is not the purpose for which the FoI Act was enacted,” he said. “The objects of such act are to facilitate access to documentation held by the commonwealth and its agencies: it is not the intent of the FoI Act that it should operate so as to provide a forum of fact-finding more appropriate to a court of law.”