Australian Democrats Additional
Comments
Introduction
I support the recommendations of the Senate Committee into
a Certain Maritime Incident. I agree
broadly with the thrust of the report and the assessments made, without
agreeing with every single comment in the full report. I will draw some of my
reservations to the attention of the Senate in due course.
The reporting of a child thrown overboard was the catalyst
for the Senate inquiry and my conclusion is that the deliberate attempts to
continue to mislead the public are to be condemned. Nevertheless, there are far
more serious ramifications in a policy sense contained in the Pacific Solution.
I remain convinced that the far more important issue is the systematic abuse of
human rights inherent in the Pacific Solution, rather than one particular
incident which was, in reality, only a symptom of the problem.
SIEV X and the Pacific
Solution
I agree with the conclusions and
the recommendations of the Committee regarding the sinking of the SIEV X and the Pacific Solution. However, I believe stronger
emphasis needs to be given to the manifest failures of government policy that
these matters highlight.
I believe that the SIEV X incident, like the ‘children overboard’ affair, is
symptomatic of flaws inherent in the new border protection regime policy, and
that it exposes major failures in the implementation of that policy.
Fundamental to the new border protection regime is an
underlying lack of respect for the value of human life and human rights. This
inherent bias was exposed in the application of the policy in relation to SIEV
4, SIEV 6 and SIEV 10, among others.
Of equal concern is the border protection regime’s strategy
to disrupt, deter and deny entry of asylum seekers appears to be in direct
conflict with the Navigation Act 1912 and
our obligations under the 1974 United
Nations Convention for the Safety of Life at Sea. It is important that those obligations are spelt out here so that
the operational failure over SIEV X is fully understood.
The 1974 SOLAS Convention provides regulations and codes of
conduct requiring vessels at sea to render their assistance in circumstances
where they receive signals that vessels are in distress. In particular,
Regulation 15 (5) of the Convention declares:
Each
contracting Government undertakes to ensure that any necessary arrangements are
made for coast watching and for the rescue of people in distress at sea around
its coasts.
Also of note, Section 207 the Navigation Act 1912 (Cth) defines a ‘seaworthy’ vessel as:
207 (1) A ship shall not be deemed
seaworthy under this Act unless
i)
It is in a fit state as to
condition of hull and equipment, boilers and machinery, stowage of ballast or
cargo, number and qualifications of crew including officers and in every other
respect to encounter ordinary perils of the voyage then entered upon and
ii)
It is not overloaded
These two points should be borne
in mind in the discussion on SIEV X that follows.
SIEV X
In assessing the SIEV X episode, the Committee examined whether there was enough information
available to warrant Australian officials acting to rearrange the maritime
surveillance pattern and the deployment of RAN vessels with a view to saving
survivors in the water or searching for the vessel before it sank.[1318]
Crucial to an assessment of this
question is the intelligence gathered by Australian agencies and, moreover, how it was used in decision making.
The Committee noted that
‘intelligence did suggest a vessel had left a location in South West Java and,
if concerns had triggered a response, it is possible that a search could have
been mounted based on these coordinates’. However, the Committee found that
because the information received on the vessel’s point of departure was
incorrect (SIEV X in fact departed from Sumatra, not
Java), a search ‘may not have found the vessel’.[1319]
The Committee also concluded that,
because the intelligence on SIEV X was imprecise and not supported by the normal signs of a
vessel in distress or potential peril, it could not ‘find grounds for believing
that negligence or dereliction of duty was committed in relation to SIEV X’.[1320]
I consider, however, that to
understand the SIEV X tragedy fully, two key characteristics of the Government’s
border protection regime need to be highlighted. First, the response of Australian
officials to the SIEV X intelligence reveals the inherent bias, noted already,
pervading the Government’s border protection regime in its totality – a bias
that is skewed towards ‘detecting, deterring and denying’ asylum seekers rather
than reacting to warnings of the danger to people attempting the passage to
Australia in unseaworthy vessels. This bias can be seen in the mindset of those
handling and analysing the intelligence on SIEV X.
It is evidenced in HQNORCOM’s
explanation of the frame of reference through which boat arrival intelligence
was viewed and interpreted. HQNORCOM, the operational command centre for
Operation Relex, described the relationship between operational priorities and
intelligence in the following manner:
HQNORCOM’s
priority task was to detect, deter and, if directed, return SIEVs attempting to
gain access to Australian territory. Consequently, the priority intelligence
focus within HQNORCOM was, and continues to be, the determination of when and
where SIEVs will arrive in Australia’s contiguous zone.[1321]
While HQNORCOM did say that SOLAS
concerns figured in intelligence assessments when relevant and the information
was consistent and credible,[1322] it
is clear that such concerns were a lesser order priority than the primary focus
on detection and interception.
It is within this framework that
the intelligence on SIEV X was analysed and interpreted. It is little wonder, then,
that the warning signs of SIEV X’s plight were discounted or overlooked by Australian
authorities. This is apparent in the response by various agencies to the vital
AFP intelligence of 20 and 22 October.
As the Committee report details,
the personal assessment of the AFP officer handling these reports from a source
in Indonesia was that the vessel was at increased risk owing to
overcrowding. It does not require 20-20 vision in hindsight to recognise that
400 passengers on a vessel belonging to a people smuggler, well known to
Australian officials as using smaller than normal vessels, was a tragedy in the
making.
And yet Coastwatch appears to have
considered that this piece of the intelligence on SIEV X did not warrant passing on to the ADF. While there may
have been doubts about the veracity of the source of this intelligence, the
danger signs contained in this information should have prompted a search for
corroborating intelligence and ‘collateral information’ about the vessel’s
condition. That is how an intelligence system should operate. That it did not
reflects not only a mindset geared towards deterring and denying asylum
seekers, but also an intelligence system that had serious organisational flaws
and failings.
Which brings me to my second
concern about how the SIEV X tragedy reveals the nature of the border
protection regime. The flaws inherent in the policy itself were also manifest
in the organisational arrangements – the grandiosely named ‘architecture’ – put
in place to support it. A policy made on the run results in an organisational
framework patched together in an ad hoc fashion. Witness for instance the
Navy’s admission to the Committee that frontline ships of the fleet had to be
rushed home from Southeast Asia for redeployment in Operation Relex.
It is within this context that the
communication breakdowns with the SIEV X intelligence need to be understood. As
the Committee report notes, there were four instances that we know of when
intelligence on SIEV X was mishandled:
- Coastwatch’s failure to
convey the report that the vessel was at increased risk due to
overcrowding to the ADF on 20 October;
- The failure, presumably of
Coastwatch again, to forward the intelligence to DIMIA, the peak agency
for intelligence matters on border protection;
- The failure to raise the
substance of the AFP intelligence of 20 October at the meeting that day of
the People Smuggling Taskforce; and
- The partial transmission of
the AFP intelligence of 22 October from Coastwatch to the search and
rescue authorities at AusSAR, which omitted the critical information that
SIEV X was thought to be overcrowded with 400 passengers on board.
The Committee rightly notes that
these failings indicate systemic problems in the intelligence ‘architecture’.
It is possible that if the AFP intelligence reports had been sent in their
entirety to all in the decision making system, then more vigorous action might
have been taken, even if this only amounted to requests to the source
intelligence agencies for urgent corroboration of the initial warning signals.
In any event, the Committee report
is right to conclude that the original breakdowns in the intelligence handling
were compounded by the subsequent failure to conduct a review of the SIEV X
episode. More recent investigations of the intelligence system for the border
protection regime have shown that the organisational weaknesses exposed by the
SIEV X are not isolated but systemic in nature. An audit earlier in 2002 by of
the Australian National Audit Office (ANAO) identified manifold problems in the
management framework for the inter-agency intelligence system to counter
illegal immigration. The ANAO found:
- that DIMIA did not develop a
strategy or a framework for investigating organised people smuggling
resulting in
- a lack of clarity across the organisation
concerning the objectives scope and focus of the People Smuggling
Taskforce.
- an inability to provide assurance of PST
performance insufficient development of processes and procedures to
support investigations and limited intelligence to drive and support
investigations.
- limited planning documents or
standard operating procedures to guide staff and support the operation of
the departments intelligence function and its interaction with other
agencies.
- the department did not have a
formal risk identification monitoring and management process in place at
the corporate or operational level. There was no systematic or proactive
approach to identify manage or monitor various risks associated with
measures to prevent detect and disrupt unlawful entry. This risk management strategy is not
expected to be operational until 2003.
- No structural process for identifying
priority areas
- DIMIA should conduct a formal
assessment of risks and controls in relation to prevention of unlawful
entry to Australia. [1323]
- Intelligence Analysis Section
did not have a database to
store, manage or analyse information.[1324]
- The extent to
which activities contribute to deterring unauthorised boat arrivals is
difficult to measure. [1325]
The evidence before the committee regarding the ‘children
overboard incident’ and the sinking of the SIEV X highlights the dangers of
implementing policy on the run. The government has instituted a policy designed
to ensure that people cannot access their fundamental rights under
international law. There is no doubt that this policy implemented a system
dangerously different from the previous policy regarding the detection of
asylum seekers arriving by boat.
Perhaps the most poignant way of demonstrating this is to
note what would have occurred if the SIEV X had been intercepted by an
Australian vessel before it
sank. It is almost certain, based on
what has occurred in all other situations since the implementation of Operation
Relex, that the first action would not
have been to ensure the safety of those on board. What would almost certainly have occurred
would have been an attempt to turn this horrendously overcrowded boat around
and make it sail back to Indonesia.
The Pacific Solution
The Committee failed to make findings or recommendations in
regard to a number of significant aspects of the Pacific solution raised in the
report. These include the impact of denying access to Australian law by
detaining people under these arrangements, the changes to the visa regime and,
central to the inquiry, the policy of deterring refugees from applying for
asylum in Australia.
The Pacific solution is in clear breach of the Refugee
Convention.[1326] Article 31 of the
Convention requires that contracting states shall not impose penalties on
asylum seekers on account of their illegal entry or presence. The detention of
refugees is considered to be an exceptional measure, which should be applied on
a case-by-case basis with reference to domestic, international refugee and
human rights law. Asylum seekers and refugees should not be detained for the
purpose of deterrence.[1327]
There is no doubt that the drastically different processing
regime placed upon those who arrive by sea is not only a penalty, but also a
method of Australia avoiding responsibility as a contracting state. The Prime
Minister himself has stated that the decision regarding those who come into the
country will not be made according to international refugee law but according
to criteria set by the Australian government, declaring that ‘We will decide who comes to this country and
the circumstances by which they come’.[1328]
The Australian government has expressly pursued a border
protection regime which has the goal of sending a message to those who seek to
come to Australia in this manner.[1329]
Central to this policy is the concept of deterrence. The policy involves
preventing asylum seekers from reaching Australia, through the disruption of
people smuggling plans or by towing boats back to international waters. Asylum
seekers are denied entry and sent to a declared country where they are detained
indefinitely.
People detained under the Pacific solution arrangements are
prevented from accessing the Australian courts. Their status as refugees is
assessed through a different process than that which applies to those who reach
the mainland, with no recourse to independent advice or Australian
jurisprudence. If they are successful in achieving recognition as refugees,
they have no presumption of protection in Australia.
The Pacific Solution also involves the introduction of new
visa regimes. Those lucky enough to be granted a visa to Australia are only
given temporary protection. This is radically different to those who are
granted protection visas offshore. In other words, one class of temporary visa
is granted on the sole basis of place of arrival, the other class of visa on
the basis of actions taken whilst in transit before seeking asylum. This
approach is not only inconsistent and unnecessarily complex, it is also a
reflection of the inherently discriminatory and unfair nature of the
Government’s border protection regime. It should be abolished immediately.
The fact that Temporary Protection Visas also prohibit any
form of family reunion is an additional travesty. It should be noted that many of the people on
the SIEV X would not have needed to task the risky and ultimately fatal option
of trying to travel to Australia by boat if the option of family reunion had
been open to them. The fact that there
were such a large number of women and children who lost their lives is no
coincidence, but a direct result of the fact that no other options were
available to some of them to reunite with their immediate family.
Recommendation
That the Australian
government immediately abolish temporary protection visas and the Pacific
Solution, and that acceptance of asylum seekers and processing of claims be
done onshore.
Children Overboard
An unusual aspect of this Inquiry was the provision of a
submission by the Federal Parliamentary Press Gallery. This submission was useful in demonstrating
how attempts to report accurately and fairly are compromised when Governments
or Ministers deliberately seek to conceal or distort facts. However, it also brings into focus the need
for media outlets to correct or follow-up stories which have been shown to be
inaccurate. This is particularly
important in sensitive or potentially inflammatory areas, such as we have seen
with asylum seeker stories.
A good example of this was the Daily Telegraph story of 13th
October, 2001. This front page story
gave detailed allegations including that boat people broke the arm of a little
girl, that Special Air Service troops conducted covert surveillance of a man
believed to be a sleeper agent with connections to Osama bin Laden and that a
woman tried to throw her daughter over the side of the landing craft. It also
concluded that a total of 36 hours of video footage and 800 digital photos
showing riots, fights and ship damage had been taken by the Maritime Commander
for review and evidence. In response to
questioning about this report, Rear Admiral Smith gave the following response:
We investigated it and
found that there was no evidence to support any of those allegations: no
evidence to support the child having her arm broken; no evidence to support any
covert surveillance of anybody—I think a small camera was mentioned in that
particular article—it did not happen. There was no evidence to support someone
trying to drop a child over the side of the LCM. So in fact, with all those
claims, there was no evidence to support them.[1330]
As far as I am aware, these very serious allegations, which
were made in a front-page story of the Daily
Telegraph, have not been corrected.
If they have, I doubt very much is was in large print on the front
page. This Committee has rightly pointed
out the importance of Ministers and politicians correcting the record when a
mistaken allegation has been made. The
same responsibility should apply to the media.
Whilst supporting the Committee’s findings in this area, I
comment on the decision of the Committee not to utilise all its powers in
attempting to get key witnesses before the Committee. It is clear that key questions have remained
unanswered. The Committee’s
unwillingness to issue summons, particularly in regards to Mr Reith, is a
disappointment. Whilst I accept that
this decision not to act may have been made in good faith, I don’t believe the
alternative course of action that was adopted was an effective option. Whilst the issuing of a summons by a
Committee of Parliament should not be undertaken lightly, I believe the issue
and the principle involved was of sufficient importance to pursue that course
of action on this occasion.
I support the Committee’s findings on developing ways of
ensuring greater accountability for Ministerial advisers in the future.[1331]
Senator Andrew
Bartlett
Australian Democrats,
Qld