Saturday, August 29, 2015

Saturday Morning Musings - Border Force and the Operation Fortitude fiasco

I missed the opening salvos in the  Operation Fortitude fiasco. I didn't pick it up until I turned the twitter feed on in the afternoon and then I couldn't quite work out what was happening. Then, as I checked, I couldn't believe what was happening. After that, I became somewhat confused.


The chronology of events on Friday 28 August drawn from the ABC appears to be roughly as follows.

9.52am. The Victoria Police announced Operation Fortitude. The statement appears to be no longer on-line. The public transport system would, the statement said,  "be at its safest ... as a diverse team of transport and enforcement agencies take to the streets as a part of Operation Fortitude". I don't know who dreamed up that name. Fortitude means mental and emotional strength in facing difficulty, adversity, danger, or temptation courageously: Within hours, all the participants were definitely in need of fortitude.

The operation would involve Metro Trains, Yarra Trams, the Sheriff's Office, Taxi Services Commission, Victoria Police and the Australia Border Force (ABF). Transit and Public Safety Command Acting Superintendent Campbell Mill said police would be showing strength in numbers.

"While we are all separate organisations, we all have something in common — a responsibility to keep our community safe," Acting Superintendent Mill said. "In order to do that, we need to ensure that people are behaving appropriately."

A Guardian report issued a little later provides further details. 
“For those of you who choose to break the rules expect to be caught by the Operation Fortitude team,” transit and public safety command acting superintendent, Campbell Mill, said in a statement. 
“There is a lot of truth to the saying that there is strength in numbers,” he said.
“From a policing perspective we will have protective services officers, passive alert detection dogs, police, booze buses and automated number plate recognition vehicles deployed this Friday and Saturday night.” 
It marks the first time border force staff have joined with transport and enforcement agencies to target crime in the CBD.
10:14am. In what was obviously meant to be an orchestrated move, Border Force releases its own parallel statement  This said in part that the ABF would speak "with any individual we cross paths with", warning that officers would be checking people's visa details.

"You need to be aware of the conditions of your visa; if you commit visa fraud you should know it's only a matter of time before you're caught out," ABF regional commander for Victoria and Tasmania Don Smith says.

The Australian Border Force (and here and here) is a new creation coming into effect from 1 July 2015 combining the immigration and customs function. Presented by the Australian Government as a border protection measure, its formation has created considerable disquiet in some sections of the Australian community. 

10.28am. In further evidence of an orchestrated approach, the Victorian Police announced that an afternoon press conference with the relevant agencies would be held on the steps of Flinders Street station at 2pm. Acting Superintendent Campbell Mill, with the Victoria Police dog squad, Protective Services Officers and police would join representatives from the Sheriff's Office, Australian Border Force and the taxi directorate.

By now, twitter in particular was starting to run hot.  Distrust about the ABF, uncertainty about the meaning of the ABF statement, doubts about the very legality of the actions along, with the sheer dislike at the prospect of being bailed up by Border Force officials on a Saturday night out out fed a growing storm. Initially, the twitter feeds were angry, but then turned to ridicule based on various Simpson memes.

12:54pm. As a backlash builds, the ABF back-pedals on its earlier statement.

"To be clear, the ABF does not and will not stop people at random in the streets ... the ABF does not target of the basis of race, religion, or ethnicity," it says in a statement.

It's too little too late. By now demonstrators have started to gather at the press release site. By 2pm, Flinders Street has been effectively closed.

2.26 pm. With the Border Force people due to attend the press conference now effectively blockaded inside the press release venue, the Victorian police tweet :"Please be advised that the Operation Fortitude media opportunity has been cancelled. We apologies for any inconvenience"

2.39pm Victoria Police issue a statement saying the operation has been cancelled.
"Victoria Police has made a decision not to go ahead with this weekend's Operation Fortitude," the statement says. 
"We understand there has been a high level of community interest and concern which has been taken into consideration when making this decision. 
"Victoria Police's priority is the safety and wellbeing of the whole community and we will continue to work with our partner agencies to achieve this."
With saturation media coverage, ABF Commissioner Roman Quaedvlieg was forced to face the media on the ABF’s role in Operation Fortitude. I repeat the statement in full:

"Commissioner Quaedvlieg:  I just want to make a quick statement and then I'll take a couple of questions and then I need to head off.

I'd like to clarify the Australian Border Force's misunderstood role in the conduct of a Victoria Police-led operation, Operation Fortitude. Operation Fortitude is an operation that was established by the Victorian Police in order to create a safe city environment within Melbourne.

The Australian Border Force is a secondary but supporting assist to that operation. Our role always was - and still is into the future - a supporting role in terms of immigration compliance. The Australian Border Force will stand by to receive the referrals from the Victorian Police where there are any immigration compliance issues to be enforced or dealt with.

There was never any intent for the Australian Border Force to proactively go out and seek immigration breaches out in Melbourne city. I'm happy to take questions.

Question: That's not what your statement said because of course you said that ABF officers will be positioned at various locations around the CBD, speaking with any individual we cross paths with. Now, that sounds rather menacing doesn't it?

Commissioner Quaedvlieg:  It does. And that was a press release that was cleared at a low level in the organisation. It was, in my description, clumsily worded. It's portrayed a role which was not the agreed role between ourselves and Victorian police. Internal measures have been taken to remediate that issue.
Question: It's not just clumsily worded - it's actually not within the law, is that right?

Commissioner Quaedvlieg:  No, well, I think it's misunderstood. Taken into context, it makes absolute, perfect, legitimate sense. But read through the layperson's eyes - which I absolutely openly acknowledge - it's clumsily worded and it's been misconstrued and it shouldn't have been worded that way.

Question: Given what you say was the actual intention for Border Force over the weekend, why would it make sense to tell everybody that you were going to be there? Because surely then people who had visa problems wouldn't go out in Melbourne on Saturday night, would they?
Commissioner Quaedvlieg:  No, look, these operations are run all the time, all around the country, by the state and territory police jurisdictions. They're intended to create safe environments and if we can market that in advance in terms of the increased police presence and other authorities and that creates a safe environment then that's also part of the agenda.

Question: But you weren't the lead agency on this were you?  Victoria Police were the lead agency?
Commissioner Quaedvlieg: That's absolutely correct.

Question: So why did the ABF feel the need to put out a statement when the Vic Police were [indistinct]?
Commissioner Quaedvlieg:  Well, as I explained to you that was a press release that was released at the lower levels of the organisation. It incorrectly construed what our role was. I've mentioned a couple of times now we are a secondary referral agency with that operation.

Question: Did Mr Smith not see the quotes that were in his name?
Commissioner Quaedvlieg:  Mr Smith did see the quotes that were put in his name.

Question: [Indistinct] that clumsily worded press release you've referred to was sent out a low level of the organisation. Who did it go to, who checked over the wording, and was the Minister's office at any stage involved in issuing press releases from Border Force?
Commissioner Quaedvlieg:  On the latter point, no, the Minister's office is not involved. The press release was circulated at a regional level in the state of Victoria.

Question: But Mr Smith isn't low level, right? And he saw the quotes that were in his name?
Commissioner Quaedvlieg:  The level is all relative. It's low level. I didn't see it. It's a low level in the organisation as far as I'm concerned.

Question: Commissioner, did Mr Smith say officers will be positioned at various locations around the CBD speaking with any individuals we cross paths with?
Commissioner Quaedvlieg: We've already covered that ground. I said yes, it's clumsily worded. Any other questions?

Question: So did he say that or did he not say that?
Commissioner Quaedvlieg:  It's in the press release. We've covered that, it's clumsily worded.

Question: Will any action be taken against the person who wrote the press release?
Commissioner Quaedvlieg:  That's an internal disciplinary matter; I'm not going to intend to canvas that here.

Question: Does Mr Smith still have his job today?
Commissioner Quaedvlieg: Yes, he does.

Question: How embarrassing is it for the Border Force that this has happened?
Commissioner Quaedvlieg:  Oh, look, it's an unfortunate incident, and it shouldn't have occurred. Remediation will be put into place but, you know, it's not a fatal embarrassment.

Question: Have you apologised to the Victorian Police and the Victorian Police Minister because they've had to call off this whole…
Commissioner Quaedvlieg: I've had a conversation today with the Chief Commissioner of the Victorian Police Force. We're good colleagues, we have good institutional relationships. That's as far as I'm going to take that conversation.

Question: If Mr Smith is the head of Border Force in Victoria and Tasmania, and he saw those quotes, did he not understand what his own organisation was doing on Saturday night?
Commissioner Quaedvlieg:  Look, I think we've covered that ground. My point is that…

Question: No, sorry, I don't understand the answer.
Commissioner Quaedvlieg:  …no, no we have covered the ground. The point is that Mr Smith cleared that press release, it was released at the level, it was taken out of context, it should have been better explained, it was clumsy.

Question: Well, this raises the question, though, of whether or not Mr Smith understands the Act under which he works, if he would allow something like that to go ahead?
Commissioner Quaedvlieg:  No, look, I can assure you he does. This was an unfortunate misconstruction of wording. It shouldn't have been the case and unfortunately it has been misunderstood.

Thank you."

Finally, after considerable delay Prime Minister Abbott has apparently released a statement reassuring the Australian public that Border Force officials will never stop them randomly in the streets to check their visas.Mr Abbott said that it was to be a "standard law enforcement operation" and anyone suspected of having a visa issue would be referred to ABF officers in "the normal way".


This whole episode makes me extremely uncomfortable. I have had reservations for a long time about the way Australian police forces use the Term "Operation " and indeed the approach itself. However, there are features of this aborted operation that make me particularly uncomfortable.  

The wording used by Acting Superintendent Campbell Mill is quite harsh. “For those of you who choose to break the rules expect to be caught by the Operation Fortitude team,” Again:"While we are all separate organisations, we all have something in common — a responsibility to keep our community safe......In order to do that, we need to ensure that people are behaving appropriately." Note, not break the law, but break the rules. Note not obey the law, but behave appropriately. The range of bodies and kit proposed to be involved was also quite extraordinary.

Whether Melbourne has been in the grip of such a crime wave to justify such an effort is one thing, whether it makes sense to announce it in advance a second. However, there is a third factor.

Excluding Border Force for the moment, the distinctive common feature among the various bodies is that they provide a point at which a person can be stopped for one reason and then checked for others. The Border Force statement may indeed have been badly worded, but there was, I think, a subtle dishonesty or perhaps misdirection in the Commissioner's  responses and indeed in the PM's response.

The much criticized statement that sparked the whole furor said in part that the ABF would speak "with any individual we cross paths with", warning that officers would be checking people's visa details. This was interpreted to mean that the ABF would be bailing people up in the street. This was probably a good thing, for without that interpretation and the consequent process Operation Fortitude might have proceeded. The real position was stated quite clearly by the ABF commissioner, although I don't think that it was properly picked up: "The Australian Border Force will stand by to receive the referrals from the Victorian Police where there are any immigration compliance issues to be enforced or dealt with." With so many referral points, the ABF didn't need to be out on the street in order for individuals to cross its path.

I have seen this type of process at work a number of times on the Parramatta train.The transport inspectors or police on the trains check for fair evasion. In several cases, I have observed these checks go to checks of address details and from there to questions about immigration status leading to what appears to be arrests or at least detention pending clarification.

Drawing this analysis together, we have a proposed large scale police operation without a clearly defined policing objective or at least need beyond, quoting the ABF commissioner, creating "a safe city environment within Melbourne" drawing together people and bodies not normally seen as having an integral policing function . We have a Commonwealth body, the ABF, whose mandate has nothing to do with "a safe city environment" directly involved in what appears to be a large scale fishing exercise to the point of press release and participation in the proposed press conference. This was hardly, to use Mr Abbott's words, a standard law enforcement operation.


It appears that Minister Dutton's Office received a copy of the ABF release, but no one read it because it was regarded as a routing matter.

Postscript 2

Interesting tweet from @ozkatz as to the choice of Melbourne for Operation Fortitude, amplifying the general point I made above about the role of other agencies as check points that would then allow ABF staff to act. I used a NSW example to illustrate, but Victorian transit staff would seem to have even more power.

 In a follow up piece today (1 September) in the Canberra Times, Putting the muscle into border enforcement, Peter Hartcher discusses  the militarisation of Border Force.

Mr Hartcher suggests that there are three layers to the Border under the new doctrine:
  • pre-border, where applications are made and scanned and intelligence checks operate to reduce risk.
  • the traditional border, where people arrive at an airport and submit their papers. 
  • "behind the border", a zone that the rest of us know as "in Australia".
It is in this third zone that the new body will be increasingly active, working with state and territory police forces, in ferreting out illegal activity and illegal immigrants. As part of the whole process, up to 6,000 ABF officials will need to meet fitness standards, will be given fire arms training and and will be able to carry fire arms and handcuffs. Noting that the aborted operation was targeting Melbourne taxi drivers, Mr Hartcher points out that Commonwealth official or ministerial responses have focused on the problem of a badly worded press statement. All other aspects of Operation Fortitude have been presented as though they were business as usual.

As indicated in the post, to my mind neither the new ABF nor the aborted operation Fortitude are in any way business as usual. This is further confirmed by the reference in Mr Hartcher's column to official comments that the problem lay in part in the absence of operating protocols to guide this type of operation. That is hardly business as usual.

The transformation of the old immigration and customs functions from a compliance to a policing and even quasi-military function in at least the case of off-shore operations may be consistent with and driven by the Australian Government's policy stance, but it is quite new. It also holds out the possibility for increased jurisdictional conflict with multiple policing and compliance layers now involved. Those operating protocols will be sorely needed.


Evan said...

I'm very uncomfortable too. And, like many, in 'What were they thinking???' mode. And that I don't have a ready answer is mostly why I'm uncomfortable I think.

Jim Belshaw said...

It's probably going to take a little while to work though all this Evan. I think that one main thing is that it indicates sets of attitudes not limited to ABF that can easily go outside the mission of agencies, step on the bounds of law in terms of both formal law, but also the underlying values and assumptions on which our liberties finally rest.

Anonymous said...

Jim, this was just your normal run-of-the-mill stuffup. Australians are good at this; and Australians are also very good at rebutting same.

What worries me more is this compulsory National Spelling Bee we have been lumped with. I am now sort of comfortable with 'Mathias Cormann' and 'David Leyonhjelm' and 'Sam Dastyari' - but then they go and give a uniform to Commissioner Quaedvlieg?

What is this? Some sort of Alzheimer's test?


Jim Belshaw said...

What can I say, kvd? It's intended to maintain your mental flexibility without giving you anything real to think about!