Breaches of Indonesian territorial waters
Operation Sovereign Borders
Operation Sovereign Borders (OSB) is a civilian law enforcement
operation run as a joint agency taskforce headed by Lieutenant General Angus
Campbell, aimed at preventing the maritime arrival of asylum seekers to
Australia. OSB commenced on 18 September 2013. The operation was an election
commitment of the Coalition, described in two policy documents: the Coalition's
Policy on Regional Deterrence Framework to Combat People Smuggling (August
2013) and the Coalition's Operation Sovereign Borders Policy (July
2013). The Coalition's Operation Sovereign Borders Policy included
'instructing the Australian Defence Force to turn back boats where it is safe
to do so' as part of a policy intended to deter people smuggling operations to
Described as 'military led' the OSB taskforce operates with the support
of a range of government agencies, organised into three task groups:
Detection, Interception and Transfer Task Group—led by the
Australian Customs and Border Protection Service (incorporating Border
Disruption and Deterrence Task Group—led by the Australian
Federal Police (AFP); and
Offshore Detention and Returns Task Group—led by the Department
of Immigration and Border Protection (DIBP).
The commander of OSB, Lieutenant General Campbell, reports to the
Minister for Immigration and Border Protection, the Hon Scott Morrison MP, who
has portfolio responsibility for OSB.
Australian vessels supporting OSB activities are monitored from two
command centres—the Australian Maritime Security Operations Centre in Canberra,
and the military component, Joint Task Force 639, in NORCOM in Darwin.
Joint review into breaches of Indonesian territorial waters
As noted Chapter 1, following the identification of a Royal Australian
Navy vessel having breached Indonesian territorial waters in the course of its
participation in OSB, Lieutenant General Campbell asked the Chief of the
Defence Force and the CEO of Australian Customs and Border Protection Service
to conduct a joint review to identify other possible breaches.
Joint review terms of reference
The joint review focused on the facts and circumstances surrounding the
entry of Australian vessels into Indonesian waters in connection with OSB
during the period 1 December 2013 to 20 January 2014. The terms of reference
for the joint review provided that it would:
Identify instances of entry of Australian vessels into Indonesian
waters and determine which could be considered in breach of Australian
Collect evidence on the sequence of events relating to instances
of entry into Indonesian waters, including:
The planning prior to each activity, including planning by units
and by higher headquarters;
The tasking of units and vessels and the processes for approving
missions and activities;
The execution of activities, including time, date and location
and whether the activities were executed in Indonesian waters;
Applicable plans, orders, instructions, charts, operating
procedures, operating policies, briefings and practices relevant to the
Assessment of whether the planning and execution of the
activities being considered conformed with the requirements of the applicable
documents, and assess the extent to which any failures to conform with
requirements may have contributed to the breaches. 
Collect evidence on how instances of entry to Indonesian waters
were identified and reported and the adequacy of these actions.
Determine whether any weaknesses or deficiencies exist in:
Preparation and training of personnel involved in planning and
Planning of activities, including physical and electronic charts
Any applicable orders, instructions, operating procedures,
operating policies, briefings and practices; and
The post-incident response to the activities.
The terms of reference also identified the key stakeholders for the review:
Department of Defence, Australian Defence Force (ADF), Australian Customs and
Border Protection Service (Customs), OSB, Joint Agency Task Force (JATF),
Department of Foreign Affairs and Trade, Attorney-General's Department, and the
Department of Prime Minister and Cabinet. The joint review was also authorised
under its terms of reference to seek information from and consult with key
stakeholders and other agencies as required.
Finally, the terms of reference noted that the joint review is to
exclude matters relating to professional conduct as these will be dealt with by
Customs and the ADF respectively, although the review may make any appropriate
recommendations as to inquiries into professional conduct matters.
Joint review findings
A public version of the review was released on 19 February 2014,
entitled Joint Review of Positioning of Vessels Engaged in Operation
Sovereign Borders. On 24 February, at an additional estimates hearing, Mr
Pezzullo, CEO of the Australian Customs and Border Protection Service, stated:
[T]he CDF and I released a public version, essentially a
summary of the narrative of events, the findings and the recommendations of the
review team. The CDF and I would not be proposing to release anything more
publicly. The content in some regards at least is covered by the public
interest immunity claim that Minister Morrison and Minister Cash have made, and
tabling the report to this committee would in effect make it public and
therefore would be in breach of that claim.
The executive summary of the joint review stated that 'Australian
vessels inadvertently entered Indonesian waters on six occasions between
December 2013 and January 2014 contrary to Australian Government policy and
operational instructions in relation to Operation Sovereign Borders [OSB]'.
In terms of responsibility for the breaches, the report stated:
The headquarters identified the requirement to obtain
authoritative information on Indonesian maritime boundaries to inform the safe
and proper conduct of the patrols. Despite recognising the importance of this
information, headquarters staff supervising OSB tactical missions, effectively
devolved the obligation to remain outside Indonesian waters to vessel
Commanders. Headquarters staff accepted, without proper review, that the
proposed patrol plans would result in vessels remaining outside Indonesian
waters. The implementation of appropriate control measures would have reduced
the risk of the inadvertent entry of vessels into Indonesian waters.
Had headquarters staff implemented appropriate control
measures, informed by authoritative information on Indonesian maritime
boundaries, the normal post activity reporting and checks would have detected
the incursions as they occurred. This did not occur. The appropriate controls were
not put in place by the relevant headquarters.
The committee heard evidence that officers such as Mr Pezzullo and
General Hurley expected that the actions of those in charge of Customs
vessels—either Navy commanders or civilian masters—would always accord with the
strategic directions given to commanders of vessels conducting missions under
Operation Sovereign Borders.
The joint review found that a lack of training may have contributed to
the breaches. It noted that while 'RAN Commanding Officers had received
professional training to understand the provisions of United Nations Convention
on the Law of the Sea (UNCLOS)', the Australian Customs and Border Protection
Service 'who are trained for operations inside the Australian Exclusive
Economic Zone (EEZ), had not received this training as it applied to the
Likewise, the appropriate control measures to review the actions of vessel
commanders in carrying out the two key policy directions in their day to day
missions under Operation Sovereign Borders were also lacking.
The report included a summary of recommendations including:
It is recommended that the Chief of Joint Operations and the
Deputy Chief Executive Officer (Border Enforcement) [Australian Customs and Border
Protection Service] consider the review and monitoring processes undertaken by
Headquarters Joint Task Force 639 and the Australian Maritime Security
Operations Centre for any individual lapses in professional conduct that
contributed to incursions by Australian vessels into Indonesian waters.
It is recommended that the Chief of Navy consider each
incursion by RAN vessels into Indonesian waters during Operation Sovereign
Borders, with regard to any individual lapses in professional conduct.
It is recommended that Force Preparation training for
Australian vessels designated to be assigned to Operation Sovereign Borders
should be amended to ensure crews are prepared to conduct operations while
remaining outside Indonesian waters.
It is recommended that a range of policies procedures and
operational documents be reviewed as a result of the incursions by Australian
vessels into Indonesian waters.
It is recommended that Border Force Capability Division
review operational training provided to [Australian Customs and Border
Protection Service] Commanding Officers and Enforcement Commanders to ensure a
tactical appreciation of UNCLOS.
Mr Pezzullo explained in his opening statement to the committee at its
hearing on 21 March that control measures to prevent further breaches were
Further, Mr Pezzullo advised that work to review and update all relevant
operational documents (recommendation 4 of the joint review) 'began as soon as
the incursions were discovered, not as a consequence of the Review process'.
Implementation of the joint review
Following the release of the report, Customs and Defence indicated that
they accepted the joint review's findings and recommendations, and directed the
implementation of the recommendations.
At the committee's public hearing on 21 March, Mr Pezzullo provided an
update on the progress of implementation of the review's recommendations. In
Recommendations 1 and 2: inquiries are underway relating to the
professional conduct of relevant personnel, but there would be no comment about
the actions of individual officers at this stage.
Recommendation 3: Defence's and Customs' force preparation
training regimes are under review and interim measures have been implemented to
address any gaps while the review is completed. Revised force preparation
training for crew and vessels under BPC would be implemented by early May 2014.
Recommendation 4: Mr Pezzullo advised that 'All relevant
operational documents have been reviewed by BPC and are being amended to
include additional advice regarding the conduct of operations and to include
internal control measures'.
Relevant operational documents include charts and systems, and policy and
planning documents; these have been updated to include operational information
and to be explicit in their guidance on Indonesian maritime boundaries. Mr
Pezzullo advised that 'A new procedure has been developed and implemented for
approval and oversight of certain operational activity'.
Work in relation to implementing recommendation 4 would be complete by mid
Recommendation 5: Mr Pezzullo advised that a comprehensive review
of operational training had been initiated to implement the review
recommendation that training to CBPS commanding officers and enforcement
officers 'ensure a tactical appreciation of the UNCLOS'.
Remedial training for commanding officers and enforcement commanders had been implemented
as an interim measure but permanent measures would be in place by the end of
Mr Pezzullo also stated that:
Both my service and Defence acknowledged at the time and
continue to recognise the seriousness of these incursions into Indonesian
waters. That is why we sought to review the matter as a matter of urgency and
put immediate measures in place to prevent a recurrence.
Reactions to the joint review findings
The Indonesian government reacted negatively to the announcements
regarding the breach of Indonesia's territorial waters. The incidents were
perceived as contributing to a deterioration of the relationship between
Australia and Indonesia. A spokesman for the Office of Indonesia's
Co-ordinating Minister for Politics, Security and Law stated:
The government of Indonesia has the right to protect its
sovereignty and territorial integrity in accordance with international laws and
the charter of the United Nations. Indonesia demands that such operations
conducted by the Australian government that led to these incidents be suspended
until formal clarification is received and assurances of no recurrence of such
incidents has been provided....Indonesia for its part will intensify its maritime
patrols in areas where violation of its sovereignty and territorial integrity
are at risk.
Professor Donald Rothwell, in evidence to the committee on 21 March,
noted that while Indonesia has some mechanisms available to it under the Law of
the Sea convention through which it could respond to the breaches by Australia,
so far it has chosen only diplomatic action:
...I would note that there is nothing on the public record to
suggest that Indonesia has sought to respond to incursions into its territorial
sea by Australian warships and government ships via the mechanisms that it has
available under the Law of the Sea convention, other than by way of diplomatic
means whereby it has expressed its displeasure at Australia's conduct.
A number of former naval commanders have publicly commented on the
breaches of Indonesian territorial waters. Retired two-star Rear Admiral
Goldrick, outlined that '[u]nder international law, the territorial sea of a
state is generally considered to extend 12 nautical miles (just over 22
kilometres) from land'. However, he noted that Indonesia is an archipelago as
defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
He suggested that 'the ships seem at all times to have been well aware of their
location...but did not include the critical legal element of the baselines in
Another former RAN senior officer, Dr Sam Bateman commented:
While the territorial sea normally extends 12 [nautical miles]
from land, if straight baselines are used, it can extend much further — a ship
can be well beyond 12 [nautical miles] from land and still be within the
territorial sea of Indonesia. Such straight baselines exist in two likely areas
where Australian vessels may head when towing back asylum-seeker boats: to the
south-west of Rote Island and off south-west Java adjacent to Christmas Island. 
Dr Bateman was critical of an apparent lack of maritime awareness by
For a maritime country with a huge area of maritime
jurisdiction, there should be a higher level of maritime awareness in
government agencies, especially regarding fundamental issues of maritime
jurisdiction. Commanding officers of all our maritime enforcement vessels
should have a clear understanding of the law of the sea, including how it
relates to our close neighbours, most of which are archipelagic states.
Responsible authorities ashore should ensure this is the case. All departments
and agencies in Canberra concerned with managing the maritime domain,
particularly law enforcement aspects, should have the requisite maritime
knowledge and awareness.
Retired Lieutenant-Commander Barry Learoyd also noted that '[t]he
Indonesian archipelago and the archipelagic baseline [the formal name for
Indonesia's maritime boundary] is well known to the Australian navy and well
known to commanders and senior officers'. He considered that 'Indonesian
maritime boundaries constituted important operational information that should
have been provided by the headquarters to the commanders of vessels assigned to
Operation Sovereign Borders'.
Evidence in relation to the maritime breaches
The committee's inquiry into the six breaches of Indonesian territorial
waters focused on:
the sequence of events that led to the incidents, including
detailed accounts of each incident;
the operational protocols and procedures observed by the Royal
Australian Navy, Customs and Border Protection and by other relevant
Commonwealth agencies during the incidents;
the extent to which the incidents complied with international
the steps being taken to prevent similar incidents from taking
place in the future;
the communications between Operation Sovereign Borders agencies,
including the Department of Immigration and Border Protection, the Joint Agency
Taskforce, the Department of Defence and Customs and Border Protection,
regarding the incidents;
the communications between the Minister for Immigration and
Border Protection, the Minister for Defence, the Senior Command of the
Australian Defence Force, the Department of Immigration and Border Protection,
the Department of Defence, Customs and Border Protection and Operation
Sovereign Borders agencies, including the Joint Agency Taskforce, regarding the
the operational procedures observed by the Royal Australian Navy
and other Commonwealth agencies involved in Operation Sovereign Borders to
ensure the safety of its personnel and asylum seekers during the incidents;
the briefings given to Australian Navy and Customs and Border
Protection personnel (both on-water and off-water) about maritime borders and
laws of the sea during on-water operations; and
any other matters relating to Operation Sovereign Borders.
In conducting its inquiry the committee was restricted by a lack of
publicly available information relating to the maritime incursions. This
situation was made worse at the public hearing on 21 March where the committee
was frustrated by persistent claims that questions about OSB in general and the
maritime incursions in particular were subject to the blanket public interest
immunity claim which Minister Morrison had previously made.
The committee was unable to obtain even basic information about the GPS
information which may have been made available to headquarters from the vessels
involved in OSB.
The following sections examine the evidence before the committee in
relation to the sequence of events and lines of communication between OSB
agencies, and the operational protocols and procedures followed by OSB vessels.
The chapter concludes with sections on the extent to which the maritime
incidents complied with international law, the public interest immunity issue
raised by officials at the committee's hearing, and other issues raised in
Sequence of events and
communications between OSB agencies
At the public hearing, Mr Pezzullo advised the committee that he would 'prefer
that we avoid specific discussion of OSB missions. We are happy to talk about
generic BPC missions, which may or may not be OSB'.
While the committee was not able to establish the sequence of events
that led to the incursions identified in the joint review, it did manage to
establish the general process which would be followed in the event of a BPC
vessel encountering an OSB related issue or incident, and the lines of
responsibility between OSB and BPC agencies.
Responsibility for Australia's national maritime security rests with the
CEO of Australian Customs and Border Protection, Mr Pezzullo.
Customs has at its disposal a number of naval assets, as well as aviation and
maritime assets of its own. Rear Admiral Noonan oversees deployment of Customs
assets on national maritime security operations. The Rear Admiral reports on
day-to-day operational matters to the Deputy CEO of Customs, Mr Roman
Quaedvlieg (who reports to Mr Pezzullo) and for Defence assets to Chief of
Joint Operations, Lieutenant General Ash Power.
Mr Pezzullo explained that 'matters pertaining to the management of
illegal maritime arrivals is executed under civil legislation—the Customs Act
and the Migration Act'.
In the enforcement of these two pieces of legislation, Mr Pezzullo explained
ADF personnel who are detaining people, checking their
property and doing the things that you have just described do so effectively as
civilian law enforcement officers, pursuant to delegation from me.
Rear Admiral Michael Noonan explained that the employment of a BPC
vessel was something determined as part of the scheduling programs set in
advance by 'higher headquarters'.
Strategic direction for OSB is set by Lieutenant General Campbell:
I will set the strategic direction with regard to issues
relating to Operation Sovereign Borders within the wider roles and tasks of
Border Protection Command. Admiral Noonan on behalf of the CEO and the CDF on a
daily basis monitored by the DCEO and the Chief of Joint Operations will
conduct those activities that are on water, while I am looking at the
directional alignment across the on-water issues, the upstream issues, the OPC
issues and the next month, next six months, next year resourcing capacity and
Lieutenant General Campbell and OSB are supported by Mr Pezzullo and the
CDF. Mr Pezzullo told the committee that Lieutenant General Campbell is
directly accountable to the Minister for Immigration. In describing the lines
of communication between himself and the CDF on maritime operations, Mr
Pezzullo noted that:
On other occasions, and this goes to Admiral Noonan's
reference to the other maritime risks, General Hurley and I may need to have a
discussion about things—we are obviously placing emphasis on OSB, and the
government has made it clear that it is the priority effort...
After the wider direction has been set for maritime security operations
under the auspices of Customs, the specific detail is then delegated, as Rear
Admiral Noonan explained:
The detail around the actual planning and execution of a
passage for a ship to get to a particular point would then typically be
delegated down various levels of command strata until we actually get to the
ship which is responsible. The ship remains responsible for the planning and
safe execution of the navigational practice.
Rear Admiral Noonan described the lines of reporting once a BPC vessel
encounters an asylum seeker vessel in its area of patrol:
Typically, we would be operating in that mode. I would get
advice. We might have a P3 out there that may gain visual detection of a
vessel—an illegal entry vessel or a fishing vessel. That information would then
be transmitted back to the headquarters in Darwin. The headquarters in Darwin
would then look at the other response assets that it has available to it in
terms of patrol boats or frigates, the state of their fuel stocks and their
availability. That headquarters would potentially task suitable assets to
respond. They would go out and conduct the interception of a vessel. During
that period there is regular contact between the tactical unit—the ship or the
aircraft—and the headquarters in Darwin. As the situation unfolds—as the vessel
starts to sink—the nature of the reporting gets higher. If, in fact, it is just
a routine interception the level of tactical reporting might be quite low.
I do not get visibility of this routine information until we
get into a crisis situation.
Vessels engaged in Customs operations, including OSB operations, have a
number of headquarter locations exercising control over them: Headquarters
Joint Operations Command (which controls ADF operations nationally, regionally
and globally); AMSOC, the Australian Maritime Security Operations Centre
(responsible for oversight of Customs assets under Rear Admiral Noonan); and
headquarters in Darwin (which coordinates Defence assets).
Rear Admiral Noonan advised that:
There is information sharing that goes on between all these
three headquarters. In terms of having a view, an understanding of what is
going on in the operational area, be it specifically in people smuggling or
illegal entry or any of the eight maritime threats, information is being shared
through these two places. Similarly, we are currently sharing a lot of information
with the rescue coordination centre of AMSA, which is a different operation
Rear Admiral Noonan advised that the headquarters in Darwin 'have the
picture of what is going on in that domain'.
Mr Pezzullo described too the displays of information which AMSOC could provide
him as CEO of Customs, in an emergency or crisis situation.
In terms of monitoring on a daily basis, Rear Admiral Noonan advised
that a 24/7 watch staff in AMSOC keep track of vessels on operations, with
regular reports going to Rear Admiral Noonan.
Asked if he visited the watch floor himself, Rear Admiral Noonan explained:
...in the course of daily operations, I have a deputy in
Darwin; I have a deputy in Canberra. They may be on the watch floor. It would
be rare for me to go on to the watch floor and seek to have a hands-on command
unless we were dealing with a safety-of-life situation. There have been a
couple of occasions during my tenure of command where I have been on the watch
floor and got personally involved in the management of specific medical
emergencies and situations surrounding safety of Australians and people seeking
to come to Australia—
In relation to the six maritime incursions:
Senator HANSON-YOUNG: A clarification: out of the six
incidents that are covered in the executive summary of the report, were any of
those incidents ones for which you thought it was important for you to be on
the watch floor?
Rear Adm. Noonan: No. At no specific instance during
those six incidents did I feel it was necessary for me to be on the watch
The monitoring of arrivals at AMSOC was not General Campbell’s
He was not present in the AMSOC during any of the incursions:
Senator CONROY: I think you
indicated you were not present one floor down on any of the occasions of
Gen. Campbell: That is correct.
While headquarters maintains a general monitoring of the position of
ships on their respective missions, the planning and execution of a passage for
an individual ship is delegated. As Rear Admiral Noonan explained:
Typically, the employment of a vessel will be determined at a
higher headquarters. That will be part of the sequencing and scheduling of
ships programs both for Defence vessels and for customs vessels, so we would
have a broad plan of employment for the fleet, as it were, that would be
promulgated in advance. The detail around the actual planning and execution of
a passage for a ship to get to a particular point would then typically be
delegated down various levels of command strata until we actually get to the
ship which is responsible. The ship remains responsible for the planning and
safe execution of the navigational practice.
Rear Admiral Noonan also described the command-and-control system which
provides for commanding officers of vessels to have freedom to manoeuvre inside
a broad area:
Under the command-and-control system that we have in place,
typically I would be providing an operational level of command. I would set an area
that would typically be defined in the operation order that I have provided.
For the mission command of the commander who has been authorised to conduct the
mission—it might be a search-and-rescue mission, for example, where an area
will be defined—the freedom of manoeuvre inside that area, under which mission
command is being exercised, will be at the discretion of that commander.
Typically it would be the commanding officer of the vessel or the aircraft in
As Mr Pezzullo put it to the committee, headquarters had confidence that
'the ships knew where they were':
It related to an incorrect calculation of the position of the
vessel. They knew where they were. As General Hurley said in some public
commentary at the time, and he put it better than perhaps anyone else has, the
ships knew where they were; it was the position relative to the archipelagic
baseline of Indonesia, which is an archipelagic state for the purposes of the
UN law of the sea.
The joint review also mentioned the delegation of planning, and the
flaws inherent in the approach of headquarters trusting that 'the ships knew
where they were'. It noted that headquarters identified the need to have
authoritative information on Indonesian maritime borders in order to 'inform
the safe and proper conduct of the patrols'.
However, the report stated that the requirement to remain outside Indonesian
waters was 'effectively devolved' to vessel Commanders by headquarters staff.
This delegation, including to people who did not have the proper training, was
made without proper review and control measures, the result of which was the
increased risk of inadvertent entry into Indonesian waters.
The report found that:
Had headquarters staff implemented appropriate control
measures, informed by authoritative information on Indonesian maritime
boundaries, the normal post activity reporting and checks would have detected
the incursions as they occurred. This did not occur. The appropriate controls
were not put in place by headquarters.
This disconnect between the actions of the vessels and the planning of
headquarters was not discovered until 15 January 2014 when, according to the
joint review, 'planning staff realised that the details of some post patrol
reporting did not correlate with the generic planning for the OSB patrols on
which the operational instructions were predicated'.
Operational protocols and
The joint review found that the vessels which inadvertently entered
Indonesian waters were in contravention of Australian Government policy and
operational instructions in relation to OSB.
Government policy is described by the review as outlined in the Coalition's
Regional Deterrence Framework to Combat People Smuggling, dated August 2013.
The review explained that this framework:
covers a spectrum of response options available under the
Operation that were translated into operational instructions to both Commander
Border Protection Command (COMBPC) [Rear Admiral Noonan] and assigned ADF and
ACBPS units. Two key policy constraints were articulated in these instructions:
Activities are only to be conducted when deemed safe to do so by
the Commanding Officer of the assigned BPC vessels, and
Activities are only to be conducted outside 12 nautical miles
from Indonesia's archipelagic baseline.
Mr Pezzullo told the committee that it was the expectation of himself as
CEO of Customs and of General Hurley as CDF that the two key policy
constraints, as translated into strategic direction for Customs and Defence
vessels, would be followed:
There were two key policy constraints that were basically
non-negotiable: activities pertaining to Operation Sovereign Borders were only
to be conducted when deemed safe to do so by the CO, commanding officer, of the
vessel and that activities were only to be conducted outside 12 nautical miles
from Indonesia's archipelagic baseline. At the level of command and control,
you issue those directions and you expect that they are going to be complied
However, not all Customs vessels are under Navy command. Mr Pezzullo
explained to the committee that while the patrol boats are under Navy command,
larger Customs vessels are contracted and it is a civilian master who has
charge of those vessels.
The contrast between the training for Navy commanding officers and the training
for civilian masters was made in the findings of the joint review., which
The Review found that while ACBPS Enforcement Commanders and
contracted vessel Masters are appropriately trained on the application of
UNCLOS for operations inside the Australian Exclusive Economic Zone, they did
not have the requisite professional training to be aware of the operational
implications of UNCLOS archipelagic baseline provisions in the calculation of
Indonesian Maritime Boundaries.
Mr Pezzullo however told the committee that he had an expectation that
strategic guidance for the operation connected to OSB had all 'appropriate
oversight, control mechanisms, control procedures and requisite force
preparation training in place'.
Mr Pezzullo’s evidence suggested that he does not believe that the operational
procedures and training needed to be more specific, as suggested by the joint
review findings, in relation to how commanding officers and civilian masters
should operate within the two key policies:
The review talks about what is called force preparation
training as a unit is being assigned into an operation. It would not have
struck us that we had to issue specific, direct instructions saying, 'Observe
your stipulated navigational controls.' That, frankly, would be categorised as
Noting the findings of the joint review that there was a disconnect
between the strategic direction given at headquarters level and the execution
of that direction at vessel level, possibly by staff who had not received
adequate training, the committee examined what oversight there was at
headquarters level of ships in operation.
The committee sought general advice on the monitoring of ships in
operation. Rear Admiral Noonan explained the information which he receives as
Commander, Border Protection Command:
The level of the information that I seek back in my
headquarters is not solely around the position of the ships. What I rely upon
is what is typically called an operational report, and on a four-hourly or
six-hourly basis I will get a standard report that provides positional
information, information about what the ship is doing, and weather information
about the ships operating—that is a formatted message that comes from the ship
itself. That will provide me with a definitive position from that point in
However, the committee also heard evidence that occasionally the ships
may have had their GPS 'turned off':
CHAIR: Are you saying that the only reason you would
not know where the vessels are is when we turn it off, and you are saying that
you have not known sometimes? So clearly we have been are turning it off.
REAR ADM. NOONAN: If I were conducting an operation
off the east coast of Australia now—typically a drug interdiction operation, a
peacetime operation—for reasons of operational security we might determine to
turn off all the emitters on our ships so that other people with their iPhone
apps and all their other great technology would not necessarily know where our
vessel is, so that we could execute that operation.
On the issue of ships turning off their GPS and the reports they would
provide under these circumstances, the committee was frustrated by officials'
reliance on Minister Morrison's blanket public interest immunity claim as
grounds for withholding information from the committee. Lieutenant General
Angus Campbell explained in relation to tracking ships:
I am making the point that our capacity to track is not
necessarily uniformly continuous and real-time. That is all I am going to offer.
Rear Admiral Noonan was confident in the ship commander's knowledge of
their position in terms of the strategic direction not to breach Indonesian
No explanation was offered to the committee that would explain how the
breakdown between expectations and execution happened so completely and so
quickly in relation to a key question of policy.
Mr Pezzullo twice told the committee that this was 'not the Soviet
Union' and that it was not necessary for him to issue further instructions to
vessel commanders or masters beyond the general directions provided:
General Hurley and I issued general directions to Commander
Border Protection Command to execute the mission as stipulated and in the terms
stipulated by General Campbell. As the admiral has been indicating all through
the morning, he in turn issues more precise stipulated instructions and so it
cascades down. It is not the Soviet Union. We do not have to second-guess what
each corporal and each XO on a vessel is undertaking. When we issue general directions,
we expect that they are carried out. On occasions, things happen. On this
occasion, regrettably, things happened which were contrary to those
stipulations. The matter has been reviewed and there is some follow-up action
in hand. There is really not much more to be said.
The committee cannot understand how lack of specific instructions and
additional training can be easily discounted as a cause of these incursions
when clearly mistakes were made.
Extent to which the maritime incidents complied with international law
Professor Donald Rothwell explained that UNCLOS, which provides the
overarching legal framework for the law of the sea, is particularly significant
to Indonesia as 'it provides the legal framework upon which archipelagic
baselines have been declared'.
Dr Kate Purcell's analysis of the breaches of Indonesian waters, based
on UNCLOS, was that 'the simple fact of entry without legal justification is
enough to constitute breach' of UNCLOS.
The Kaldor Centre for International Refugee Law at the University of New
South Wales provided a submission to the inquiry. The submission assessed that
'the incursions into Indonesian territorial waters by Australian Navy or
Customs and Border Protection vessels without Indonesian consent were in violation
of the international law of the sea and the obligation to respect the
territorial sovereignty of other States, which is a basic principle of
international law'. Further:
[T]here is a significant and inherent risk that Operation
Sovereign Borders breaches Australia's obligations under international refugee
law and international human rights law. The interdiction and pushback of boats
is also inconsistent with Australia's obligations under the law of the sea,
including the law relating to search and rescue at sea, as well as the Migrant
In his submission to the committee's inquiry, Professor Rothwell
expanded on the argument that entry of an Australian Navy or Customs vessel
into Indonesian waters would be a violation of international law by noting
the mere presence of an Australian Navy ship within the
Indonesian territorial sea is not a violation of international law. Australian
Navy ships enjoy a right of innocent passage within the Indonesian territorial
sea and the right of archipelagic sea lanes passage within recognised sea lanes
that run through the Indonesian archipelago...However, the entry into Indonesia’s
territorial sea by an Australian Navy or Customs ship that has control over an
asylum seeker boat by way of a tow line, with the intention of returning that
boat to Indonesia, would not be consistent with the right of innocent passage.
The Australian Lawyers Alliance argued in their submission that given
the review period was only December 2013 to January 2014, there could be other
breaches of Indonesian territorial waters in the period from September 2013 to
December 2013, since the beginning of Operation Sovereign Borders.
Public Interest Immunity
On 14 November 2013, the Senate ordered the production of a range of documents
related to border protection and the activities of Operation Sovereign Borders.
In response, Minister Morrison provided a range of information already on the
public record, including transcripts of OSB press conferences from 23 September
to 15 November 2013, various media statements and the weekly operational
updates commencing on 30 September 2013. The minister also offered to provide
the Opposition and Australian Greens Senators with a confidential briefing
delivered by OSB Commander, Lieutenant-General Campbell.
Minister Morrison claimed that provision of the other documents
requested by the Senate would not be in the public interest and cited possible
damage to national security, defence, or international relations, and possible
prejudice to law enforcement or protection of public safety as grounds for
withholding the information from the Senate.
On 3 December 2013, the Senate resolved that the order had not been complied
with and again ordered the production of the documents. In so doing, the Senate
rejected the minister's claim of public interest immunity.
On 10 December 2013, the Senate referred an inquiry to the Legal and
Constitutional Affairs References Committee in relation to the claim of public
interest immunity over the documents. The committee reiterated in the strongest
possible terms the Senate's right to information and emphasised that a claim of
public interest immunity made by a minister remains a claim until the Senate
has either accepted or rejected the claim having regard to the basis upon which
it is made.
The committee concluded that its 'ability to examine the merits of the
claim has been frustrated because the committee was not provided with the
relevant documents nor the information contained therein, nor even a schedule
listing the documents covered by the claim'. It recommended that the Senate
should 'use the political and procedural remedies...as possible means to resolve
non-compliance with the orders for production of documents and the related disputed
claim of public interest'.
On 20 March 2013, the day before the committee's public hearing, the
committee Chair, Senator Dastyari,
received correspondence from Minister Morrison relating specifically to the
public interest immunity issue. The minister's letter noted that the
committee's terms of reference are such that information and documents which
may be requested by the committee are likely to contain information relating to
on-water and other operational activities similar in nature to material which
was subject to the minister's previous public interest immunity claim. The
letter stated very clearly that:
In the event that the Committee seeks such documents or
information as part of this inquiry, I may wish to consider making a further
public interest immunity claim, in line with the Government's stated position
on these matters.
In what amounted to an effort to pre-empt the committee's hearing, the
letter re-stated the public interest grounds for not disclosing information
pertaining to on-water and other operational matters which the minister
provided in response to earlier Senate orders.
During the 21 March hearing witnesses did not raise any new public
interest immunity claims as the basis for refusing to answer specific
questions. However, Mr Pezzullo, Mr Bowles and Lieutenant-General Campbell
referred to Minister Morrison's previous public interest claim on numerous
occasions during the hearing as the basis for not addressing or answering
questions on operational and on-water issues relating to the specific maritime
The committee took evidence on a number of other matters relevant to the
committee's inquiry, and it sees benefits in noting them in its report for
policy makers and to assist public debate in this area.
Use of orange lifeboats
Given the detailed media reporting on the use of orange lifeboats to
return asylum seekers to Indonesia, the committee looked into the implications
that this practice may have had on the incursion into Indonesia. The committee also
looked briefly at whether the lifeboats themselves may constitute an incursion
into Indonesian waters.
Given that the lifeboats are owned by Australian Customs hardware, the
committee put it to Mr Pezzullo that the Indonesians may perceive the lifeboats
themselves as a breach of their territory by Australian 'vessels'. Mr Pezzullo
stated that he was not aware of the views of Indonesia on this matter:
I have got no idea. You are asking me how the Indonesians
perceive the lifeboats. I have got no idea.
Professor Rothwell offered a different perspective on the question of
breach of Indonesian waters by the orange lifeboats, based on his consideration
of the UNCLOS:
the entry into Indonesia's territorial sea by an Australian
Navy or Customs ship that has control over an asylum seeker boat by way of a
towline, with the intention of returning that boat to Indonesia, would not be
consistent with the right of innocent passage.
International law and government
Dr Kate Purcell, in her opening statement at the committee’s hearing,
raised concerns regarding the government's policy of ‘turning back’ boats. In
Dr Purcell’s view, interdicting boats in Australia’s contiguous zone and
turning them back would ‘exceed Australia's limited right in that area to exercise
the control necessary to prevent infringements of Australian immigration and
customs laws and regulations’.
It was Dr Purcell's view that ‘turning boats back’:
a significant and inherent risk of violating Australia's obligations not to
return people to persecution or other serious harm, or to places where there is
a real risk that they will then be returned to other countries where there is a
real risk of persecution or other serious harm. Australian Navy and Customs and
Border Protection personnel are bound by those obligations in extra-territorial
activities, as they are organs of the state. The obligations apply where
Australia exercises effective control over asylum seekers.
Professor Rothwell raised concerns with the policy of towing asylum
seeker vessels through the Indonesian Exclusive Economic Zone under the UNCLOS:
act of towing a vessel into the Indonesian exclusive economic zone, whether
that is the original asylum-seeker craft or whether it is a lifeboat, cannot be
consistent with Australia exercising the right of freedom of navigation. The
right of freedom of navigation exists generally within the exclusive economic
zone in the high seas and it is a right available to all states. But the
exercise of the right of the freedom of navigation with the intention of towing
a vessel which is not otherwise incidental to the normal mode of operation of
that vessel with the ultimate aim of that towing operation or escorting
operation ceasing, and directing persons on board that vessel to go, presumably,
to the Indonesian coast, I do not believe is consistent with the legitimate
exercise of the right of freedom of navigation.
The committee commends the evidence it received regarding breaches of
international law to policy makers and government. The committee is concerned
by the evidence that was provided to it about potential breaches of
International Law which are happening as a direct result of the government’s
The committee noted comments from Mr Pezzullo that indicated he believed
that the UNCLOS had not been encoded in Australian law,
though this statement was in conflict with later comments from Dr Purcell.
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