A new era for Whistleblowers in Australia
Amendments to the laws have passed both Commonwealth Houses of Parliament.
The number of migrants and refugees crossing the Mediterranean Sea reached a crisis point in 2015 and the situation is expected to continue this year. According to the International Organisation for Migration (IOM), 140,933 migrants have reached Europe by sea since the start of January 2016. The vast majority of these arrive on the Greek islands, with smaller numbers arriving in Italy. Close to 450 migrants are known to have drowned. The crisis is now recognised as the largest movement of displaced people through Europe’s borders since World War II. There are many drivers of this increase in migrants, including the wars in Syria and Iraq, the civil unrest in Libya and the desire for a better life in Europe, encouraged by the apparent ease of entry into the EU.
In response to this, the attitude of the EU and its member states is hardening, particularly against people smugglers and economic migration generally. “Do not come to Europe," said Donald Tusk, president of the European Council, after meeting with the Greek prime minister in Athens to discuss ways in which to tackle the crisis. "Do not believe the smugglers. Do not risk your lives and your money. It is all for nothing.".
Ships’ masters and owners find themselves in a difficult situation if they come upon migrants on the high seas. Unseaworthy boats are often encountered, heavily overloaded, in serious peril and in need of rescue. Most mariners will not hesitate to “do the right thing” and conduct a rescue. Indeed, the law of the sea requires them to do so. However, it is once the rescue is conducted and migrants are onboard that issues might arise. In the face of unprecedented levels of migration, EU states are becoming less welcoming.
This is, of course, not the first migration of this scale by sea that has caused such challenges for the shipping industry - the plight of the Vietnamese boat people in the 1970s caused shipowners significant difficulties when South East Asia states became increasingly unwilling to allow disembarkation. More recently, the policy of the US in returning the Haitian boat people and the dilemma of the Norwegian ship Tampa, with 438 refugees onboard, which was refused permission to enter Australia, led to a review by International Maritime Organisation (IMO) of IMO instruments “ so that any existing gaps, inconsistencies, ambiguities, vagueness or other inadequacies could be identified and any action needed could be taken”.
Under the 1982 United Nations Convention of the Law of the Sea, ships have a clear duty to assist those in distress. Article 98 (1) states that “ every State shall require the master of a ship flying its flag, in so far as he can do so without serious damage to the ship, the crew, or the passengers… render assistance to any person found at sea in danger of being lost [and] to proceed with all possible speed to the rescue of persons in distress, if informed of the need of assistance, in so far as such action may reasonably be expected of him. ”.
Article 98(2) goes on to say “ Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose. ”.
The review made amendments to the SOLAS and SAR Conventions which entered into force in July 2006. To SOLAS Chapter V was added the words: “ This obligation to provide assistance applies regardless of the nationality or status of such persons or the circumstances in which they are found. " The amendments are meant to promote coordination and cooperation between States to assist the ship's master in delivering persons rescued at sea to a place of safety. The amendments added a new regulation on the master's discretion, which states that " the owner, the charterer, the company operating the ship…, or any other person shall not prevent or restrict the master of the ship from taking or executing any decision which, in the master's professional judgement, is necessary for safety of life at sea and protection of the marine environment.".
The SAR Convention added a new paragraph in chapter 2. The new paragraph requires enhanced cooperation between states, in respect of (i) assistance to the master in delivering persons rescued at sea to a place of safety, and (ii) rescue coordination centres initiating the process of identifying the most appropriate places for disembarking persons found in distress at sea.
In legal theory, a ship’s master should be able to pick up those in distress at sea with confidence that the local Rescue Coordinating Centre (RCC) will assist him to disembark those rescued with the minimum of disruption to his voyage. For the ship’s Master, securing the agreement of States for disembarkation of those rescued will be key. If those persons claim to be refugees or asylum seekers, or indicate in any way that they fear persecution or ill-treatment if disembarked at a particular place, key principles prescribed by international refugee law must be upheld.
The 1951 Refugee Convention prohibits refugees and asylum seekers from being expelled or returned in any manner whatsoever “ to the frontiers of territories where [their] life of freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion ”. Those who do not meet these criteria but who fear torture or other serious human rights abuses, or who are fleeing armed conflict, may also be protected from return to a particular place by other international or regional human rights or refugee law instruments.
Neither the Master, nor any of the ship’s crew is responsible for determining the status of those being rescued. If the persons rescued indicate that they are asylum seekers or refugees, or that they fear persecution, the Master should inform them that he has no authority to determine an asylum request.
The Master will need to inform the ship’s owner or operator, agent, and ship’s insurers, including the P&I Club, of the rescue. The Master will also need to be ready to provide the RCC responsible for the search and rescue (SAR) region with the assisting ship’s details including name, flag, the ship’s owner, the ship’s position and next intended port of call, current safety and security status and endurance with additional persons on board.
Careful consideration will need to be given to how the rescued persons will be disembarked or transferred, to ensure that refugees and asylum seekers are not transferred to a place where their life or safety would be at risk.
International data protection principles also need to observed, and care taken to ensure that rescued persons’ information is not shared with the authorities of their country of origin or any country from which they have fled and in which they claim a risk of harm, or with those who may convey this information to the authorities of those countries.
There is currently no mechanism in place to ensure compensation in the case of delays, fines, loss or other expenses incurred, leaving ship owners to absorb the cost of SAR operations. International law has not been amended since the current humanitarian crisis began, and while governments have an obligation to assist, by coordinating and cooperating to ensure that ships providing assistance are released from the obligation with the minimum further deviation from their intended voyage, the scale of the crisis has led the shipping industry to call for governments to agree greater state-funded resources for SAR operations.
Until then, shipowners should consider putting in place detailed plans and procedures; to provide training to their crew to safeguard their safety and the safety of those being rescued, as well as the security of the ship; and to review their insurance policies. 2016 is unlikely to be any easier than 2015. More efforts will be focused on the prosecution of people smugglers and EU prosecutors may also be harsher on those organisations that are being seen to facilitate the migration through the provision of SAR and humanitarian services. Care needs to be taken to ensure that Masters stay on the right side of the line and only become involved in rescue where the occupants are truly “in danger of being lost”.
Amendments to the laws have passed both Commonwealth Houses of Parliament.
Canadian National Railway Company v BNSF Railway Company adds to recent case law that has seen the Federal Court refuse to issue routine protective orders.