Chapter 4
Operation Sovereign Borders: transparency and accountability
4.1
This inquiry had its genesis in the Senate's order for the government to
provide information about the alleged incident in May 2015 (as well as any
other such incidents), and the government's refusal to do so. The Senate has
already rejected the public interest immunity claim made by the minister in
that regard; the terms of reference for this inquiry require the committee to
consider that claim, and how this stand-off between the executive and the
parliament may be addressed.
4.2
In calling for submissions and speaking with witnesses, the committee
received evidence of widespread disquiet about the government's secrecy in the
face of this particular incident, and more broadly, the lack of transparency
and accountability surrounding the conduct of Operation Sovereign Borders.
The minister's public interest immunity claim
4.3
As discussed in chapters 1 and 2 of this report, the government did make
a submission to the inquiry. That brief submission provided little substantive
information to assist the committee, and instead referred again to the
minister's 2015 public interest immunity claim.[1]
4.4
A few days prior to the committee's public hearing for this inquiry, the
committee received a letter from Minister Dutton. The minister noted the
committee's invitations to the Department of Immigration and Border Protection
(the department) and the Operation Sovereign Borders Joint Agency Task Force (OSB
JATF) to appear at the hearing, and observed that:
the Terms of Reference for the inquiry are such that some
information and documents which may be requested are likely to contain
information similar in nature to material which was subject to my earlier claim
of public interest immunity...
I have reviewed my earlier claim for public interest
immunity. I remain of the view that the disclosure of operationally sensitive
information pertaining to the activities of Operation Sovereign Borders, and to
the allegations of payments in exchange for the turnback of asylum seeker
vessels should not be disclosed...[2]
4.5
The minister reiterated in brief the grounds of his 2015 claim for
public interest immunity. The minister's letter did not acknowledge that that
claim had already been rejected by the Senate.
4.6
The committee replied to the minister prior to the hearing, noting that
any claim of public interest immunity in response to a request for documents or
information made during the course of this committee's inquiry should be made
in response to a specific request, stating the grounds for the claim. The
letter also noted that the committee was empowered to receive documents and
information in camera.[3]
4.7
The government was represented at the committee's public hearing on
5 February 2016 by Mr Michael Pezzullo, Secretary of the department, and
Major-General Andrew Bottrell, Commander of OSB JATF. At the commencement of
their appearance, Mr Pezzullo indicated that the officials would rely on the
minister's 2015 public interest immunity claim, as well as a 'longstanding
practice' of refusal to disclose intelligence information:
The first point I wish to make, on behalf of the General and
myself, is that the committee would be aware of and seized of two letters
written to the committee [sic] by the Minister for Immigration and
Border Protection—one from June 2015 and one, more recently, from January
2016—asserting claims of public interest immunity. They cover, in totality, all
of the operational matters that I am sure are of concern and of interest to
this committee. As a result of that assertion of the claim of public interest
immunity by the minister, we will be severely constrained in what we can
disclose in an open session such as this that goes to operational details.
Having heard some of the questions and testimonies previously given, I want to
respectfully foreshadow to the committee that whilst, of course, you are well
within your rights to ask whatever questions you like, we are well within our
rights to refer to that claim of immunity by the minister—and we will, most
certainly, be doing so.
...
Secondly, in relation to media speculation that has been the
subject of matters that are before the committee that relate to potential
operations or alleged operations by intelligence services, in addition to the
minister's claim of public interest immunity, I foreshadow the longstanding
practice—that governments of all persuasions and officials have always
observed—of neither confirming nor denying specific intelligence matters. We
will, of course, consider each of your questions on their merits, but I can
tell you right now that in our answers we will be applying the principle as
well.[4]
4.8
Toward the conclusion of the public hearing, members of the committee
raised with the government's representatives the possibility of seeking
evidence on these matters in camera, in order to obviate the
government's concerns, as expressed in the minister's public interest immunity
claim, about 'operational matters' becoming known to people smugglers.
Major-General Bottrell responded that '[g]oing in camera does not change
my ability to disclose any information based on the minister's public interest
immunity claim',[5]
although he did not specify which elements of the claim would be relied upon in
that circumstance. While the officials acknowledged that this was ultimately a
matter for the minister, Mr Pezzullo advised the committee that '[m]y advice to
the minister would be that [going in camera] would not change the
circumstances in any event'.[6]
Concerns of submitters
4.9
A number of submitters were critical of the public interest immunity
claim made by the minister in 2015, and more broadly, viewed the government's
public statements on this issue as evidencing an unacceptable lack of
transparency and accountability for the conduct of serious and potentially
illegal activities.
4.10
The Human Rights Law Centre (HRLC) argued that :
The current government's refusal to discuss "operational
matters" impairs the ability of both the Australian legal system and the
Australian people to properly evaluate government conduct.
There is no justification for the continued secrecy around
these issues. If the government authorised the payment of taxpayer funds for
this purpose, it should disclose this and explain how it believes the payments
are lawful and in the national interest. If the Government did not make the
payments, it should confirm this as the continued failure to deny the payments
acts as an incentive to other people smugglers to seek a similar payment.[7]
4.11
Civil Liberties Australia (CLA) rejected the minister's public interest
immunity claim as 'nonsensical':
The events in question have been widely reported in the
Australian and world media. It is difficult to see how confirming the events
took place as reported can in any sense surrender some advantage which it is
thought is held [by] Australian authorities. Whatever damage might be done to
the bodies concerned has already been done, the attitude of Australia towards
the safety of lives at sea has been exposed, and the practice(s) of Australia
in relation to refugees in similar circumstances have been revealed[.]
The Senate should insist on the production of relevant
documents. If necessary, arrangements could be made to preserve from
publication any documents containing information the content of which has not
already effectively been disclosed by the media reports of the incident.[8]
4.12
Non-government witnesses at the committee's public hearing also
expressed frustration with the unwillingness of the government to accept
greater transparency (and consequent accountability) for the events which
occurred. During discussion about the possible events under discussion being
merely 'allegations', RILC observed that leaving such allegations without
investigation was 'unacceptable in a constitutional democracy':[9]
The ordinary way of resolving them is to subject those
allegations to proper processes by which we can resolve whether the allegations
are true or not. The unconventional way in which to handle allegations is to
essentially not allow them to be subject to proper scrutiny, and that is what
has occurred.[10]
4.13
The Refugee & Immigration Legal Centre (RILC) concluded that:
...the Australian government, the executive, to whom the
allegations have been made, has failed consistently to provide any serious or
substantial response to the serious allegations. The way in which to further
the matter would be for the executive to provide a proper response and one that
provides sufficient accountability and disclosure. That has not occurred...
...what we are left with is these very serious allegations of
the potential placing of lives at risk, the potential serious breaches of law
and an executive saying, 'Just trust us, just leave it to us.' I am sorry to
say that, under the rule of law, that is a wholly unsatisfactory response.[11]
Operation Sovereign Borders and executive accountability
4.14
Beyond the particular incident of May 2015, submitters and witnesses
expressed serious concern about the overall climate of secrecy surrounding
Operation Sovereign Borders, and the commensurate lack of oversight and
accountability in this area of government activity.
4.15
Dr Cassimatis and Ms Drummond argued that:
The Australian government's response to these issues...raises
concerns regarding respect for the rule of law nationally and internationally.
The lack of official information from the Australian government regarding the
circumstances surrounding the alleged payments and Australian officials handing
over control of asylum seekers to people smugglers also raises serious
concerns. Independent oversight is essential to avoid abuse of power and to
ensure the protection of the rights of some of the world's most vulnerable
human beings.[12]
4.16
UnitingJustice Australia agreed that 'the secrecy associated with
so-called "on-water" activities', along with increasing ministerial
discretion over these matters, 'threatens the level of accountability required
in a robust democracy'.[13]
4.17
RILC proposed a special parliamentary commission to examine the alleged
payment incident and related matters:
These matters are profoundly serious; this is about our
obligations to people who may well be at risk of persecution and whose lives
may well be placed in further danger because of these alleged acts. In the
absence, at the moment, of a change in the law, which would allow for proper
investigation and potential prosecution under the ordinary legal processes in
this country, it seems to me that we also have a potential gap here in
accountability mechanisms even in the Parliamentary process, and that is
that—unlike, it seems to me, in some other countries, like the US—we do not
seem to have appropriate procedures or, indeed, fully use procedures that might
be available to have a special commission where there can be a proper
investigation of these matters—potentially, in camera if it is claimed by the
government that there are sufficiently sensitive matters that need to be
examined in camera—for parliamentarians to be able to properly investigate
these matters, see the inside evidence and get to the bottom of it...we know that
there have been some very serious matters that have been investigated in such a
way in special commissions in the US. I think there should be some serious
consideration of it, because otherwise we are left with mechanisms which
essentially stifle any proper accountability or investigation of these types of
matters—matters that are not only about the safety and the lives of people, and
that is a critical issue, but also about responsibilities within the
international community in these international compacts that we have signed up
to.[14]
4.18
Dr Emma Larking agreed:
Undoubtedly, there is a heavy responsibility on the executive
and on the government to take the matters very seriously and respond with full
information. If there is a claim that that information cannot be publicly aired
without putting people's lives at risk then, as Mr Manne has suggested, there
should be set up a commission or some other body that is capable of assessing
what has happened.[15]
4.19
More broadly, Amnesty International proposed that:
If Australia is to continue with this pushback policy, and
Amnesty International strongly believes it should not, we recommend a mechanism
is put in place to ensure independent monitoring of all activities undertaken
by Operation Sovereign Borders. That includes any operations to intercept and
turn back boats.[16]
4.20
Amnesty International's report called for a Royal Commission into
Operation Sovereign Borders, 'to investigate and report on allegations of
criminal and unlawful acts committed by Australian government officials'; for
Australia to ensure effective remedy and reparation to those whose rights were
violated in incidents of abuse; and for the government to 'overhaul its
approach to asylum-seekers and refugees arriving by boat', making a number of
specific recommendations in that regard.[17]
4.21
Amnesty elaborated at the committee's public hearing:
What we are concerned about is what tactics are being used to
convince the crew and the passengers to sail back to Indonesia. What tactics,
in terms of Australian law and in terms of international law, are being applied
in order to convince people to do this, and is it being done in a way that is
lawful. That is why we think there needs to be a royal commission. We also
think there needs to be an independent observer on those boats who can make
sure that this is occurring in a lawful manner...We are just worried that
[payment of people smuggling boat crews] is part of the pattern being adopted
by Australian officials in order to implement this policy, and that this policy
is taking Australia increasingly to a place where it is breaching not only
international law but also Australian law. That is why we think there needs to be
a royal commission.[18]
4.22
In its submission, OSB JATF sought to justify the government's need to
withhold information about Operation Sovereign Borders. The submission stated
that:
The Commander of the [JATF] has always been required to
balance the public's right to know with the safety of all involved when it
comes to the release of information. People smugglers use information about
on-water procedures to instruct crew and passengers on how to limit the
effectiveness of our procedures, for example, by disrupting lawful boardings.
In some cases this has led people to sabotage their own vessel, putting their
lives and the lives of Australian officials who attempt to save them at risk.
Public knowledge regarding our maritime operations may lead
people to make dangerous assumptions about our maritime assets, and
ill-informed judgements about voyage planning, including the selection of the
route, crew and vessel. Passengers may be told by people smugglers not to be
concerned by the poor state of their vessel, inexperience of their crew, or
lack of provisions based on incorrect assumptions about how Australian assets
will respond. Public acknowledgement of our techniques and procedures can
foster these misconceptions, and has the very real potential to place responders,
as well as passengers and crew, in danger.[19]
4.23
At the public hearing, Major-General Bottrell elaborated further:
...I fully expect that people smugglers will continue to
attempt to use the divergence of views and will continue to peddle
misinformation on Australia's policies, operations and tactics to cultivate
their illicit trade. In the current environment, working within the Joint
Agency Task Force and with our international law-enforcement counterparts, we
have information superiority over the people smugglers, which means that we
maintain a high degree of situational awareness that enables us to employ a
variety of operational responses. It is my intention to keep it this way.[20]
4.24
At the public hearing committee members discussed in some length with
the government's witnesses their concerns about the perceived lack of
accountability of the executive government for activities undertaken as part of
Operation Sovereign Borders. The government offered repeated assurances to the
committee that all of the activities undertaken by the Operation Sovereign
Borders task force were legal, but could not go further:
Mr Pezzullo: ...All of the actions undertaken by the
Operation Sovereign Borders joint task force are undertaken lawfully.
Senator GALLAGHER: And what is the scrutiny of that?
Do we just take your word for it, Mr Pezzullo?
Mr Pezzullo: In this context you are going to have
to...[21]
4.25
The government refused to provide any of the legal advice with which it
had been furnished, citing 'longstanding practice' of governments not providing
such advice to parliamentary committees, but acknowledged to an extent the
committee's frustration about the absence of oversight of the executive on
these matters:
Your point is well made and well understood. It is always a
difficult challenge when agents of the executive undertake activities which are
the subject of ministerial oversight and scrutiny. It is very difficult to
canvass these matters, obviously, in open session with Senate committees,
particularly when claims of public interest immunity are made. I will reiterate
several things: one is that the operation itself is under the direct
supervision of a minister of the Crown who, in turn, obviously works with his
colleagues in terms of general policy. Secondly, each of us is bound by the
relevant legislation that is applicable. As you well know, even as creatures of
the executive...legislation is also applicable...
...So the scrutiny is, I guess, several-fold: one is that there
is a minister of the Crown who oversees the operations in very close
detail—and, obviously, nothing is held back from him. As a minister he is
entitled to all the information that he needs to do his job to oversee us.
Secondly, we give him advice—and, indeed, he seeks that advice—on what we are
lawfully permitted to do to give effect to the strategic direction of the
government.[22]
Committee view
4.26
The committee recognises that even in a democracy, governments must keep
certain information out of the public domain. In this case, the government has
argued that the integrity of its operations to "stop the boats" and
combat people smuggling, and the conduct of its relations with regional
partners, require that details of the alleged incident in May 2015, and related
issues, be kept secret. However, this does not address the committee's concerns
as to why information could not be discussed at an in camera session,
particularly in light of the Senate’s rejection of the minister's public
interest immunity claim.
4.27
The lengthy public interest immunity claim made by the minister to the
Senate in June 2015, while citing several purported grounds for immunity,
essentially related to the government's concern about two groups of people
seeing information about the incidents: people smugglers and foreign
governments. Speaking to the government's repeated refusals to even confirm or
deny the allegation that payments were made to the boat crew, Major-General
Bottrell said that '[t]he issue here is not about the Australian public; the
issue that I am primarily concerned about is the people smugglers'.[23]
4.28
Based on the above reasoning and on its discussions with the government
to date, the committee is not convinced that significant further information
relevant to the committee's inquiry could and should not be provided by the
government to this committee, utilising the provision to give evidence in
camera where appropriate. The committee has not yet exhausted its attempts
to pursue this with the government, and intends to do so prior to concluding
the inquiry.
4.29
More broadly, the committee recognises the concerns expressed by
submitters and witnesses, and increasingly being felt in the Australian
community, about the secrecy and lack of accountability surrounding the
government's conduct of Operation Sovereign Borders. The committee notes the suggestions
offered by some for new accountability mechanisms in this regard. The committee
is also cognisant of a history of consideration by this committee, other
committees and the Senate itself, of issues relating to executive
accountability to parliament, including in relation to orders for the
production of documents and claims of public interest immunity.
4.30
Allegations of a serious nature have been very publicly aired through media
and other reporting of the events of May 2015. These include the possibility
that government officials have breached national and international laws, placed
innocent people in harm's way, and undermined the government's own border
protection policies. These allegations must be subjected to proper scrutiny and
accountability. "Trust us, we're the government" is not good enough.
4.31
As one senator remarked during this inquiry:
...what keeps a minister accountable is the parliament, and the
parliament is not being kept informed. So how do we do our job to make sure
that the executive is kept accountable? What we have going on here—the issue
that is raised by this situation—is that we have the government talking to the
government, taking legal advice from the government, which then advises the
government that what the government is doing is in accordance with government
policy. And the job that we are charged to do, which is to keep the government
accountable, is not able to be done because of the fact that Operation
Sovereign Borders is veiled in secrecy and information that will enable us to
do our job is not provided.[24]
4.32
As such, the committee believes that it would be appropriate for this
committee, and through it, the Parliament, to give further consideration to how
greater oversight and accountability can be achieved in relation to the
incident central to this inquiry specifically, and Operation Sovereign Borders
more generally, without compromising the level of secrecy necessary for
effective border security. The committee has not yet fully explored this area
of its inquiry.
4.33
The committee intends to continue its inquiry in this direction, but
recognises that the impending national election may interrupt that effort
before the committee is able to conclude. Should this occur, the committee
strongly recommends to the new Senate that it refer this matter anew, and that
a future committee draw upon this interim report to continue the inquiry and to
reach final conclusions and recommendations, particularly on the matters raised
in this chapter.
4.34
In that regard, should a new committee take up the inquiry, this
committee urges it to pursue efforts to obtain evidence from the government in
camera, noting the need for greater executive accountability to the
parliament in relation to these matters, and that the Senate has already
rejected the minister's previous public interest immunity claim.
Recommendation 1
4.35
The committee recommends that, should it be unable to complete its
inquiry prior to the 2016 national election, the Senate refer this matter, in
the same terms, to the Legal and Constitutional Affairs References committee in
the 45th Parliament.
Senator Glenn Lazarus
Chair
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