Conclusion and recommendations
At its hearing on 21 March, Mr Pezzullo advised the committee that apart
from the six territorial breaches into Indonesian waters between 1 December
2013 and 20 January 2014, he was not aware of any other inadvertent breaches of
another country's territorial waters, and that such breaches are uncommon:
There have been no inadvertent incursions that I can recall
in the five years I have been in this role or the deputy's role. There have
been times where under recognised safety of life at sea, or SOLAS, provisions
we have had coordination across the two rescue command and control centres—AMSA
for our part and the relevant counterpart authority in Indonesia—permission has
been granted. There was a case reported in the press where ACV Triton was given
permission to land persons who had been rescued, but that is by design.
As discussed in Chapter 2, the joint review report noted two key policy
constraints which underpinned the strategic directions given to commanders of
vessels conducting missions under Operation Sovereign Borders (OSB): activities
are only to be conducted when deemed safe by the Commanding Officer, and
activities are only to be conducted outside of 12 nautical miles from Indonesia's
The committee is concerned that the two policy directions may not be
compatible in the challenging real-life situations in which vessel commanders
find themselves under Operation Sovereign Borders. Ensuring the safety of crew
and asylum seekers while turning back or towing back vessels outside of 12
nautical miles from Indonesia's archipelagic baseline may not be an achievable
policy goal, depending on the prevailing conditions, the sea-worthiness of
vessels and the possible use of lifeboats.
Based on the paucity of evidence before it, the committee can only
speculate on situations where a vessel commander, in following the first policy
direction, may have inadvertently breached the second policy direction,
particularly to ensure safety of life at sea. This eventuality, therefore, may
account for some or all of the six breaches occurring under the government's
recommends that the government consider
the apparent conflict between its key policy constraints, especially in
light of the difficult decisions that Navy and Customs captains are required to
make as part of OSB.
The committee is also concerned by the evidence it received from
academic experts that the incursions into Indonesian territorial waters
breached international law. The committee is concerned about the implications
of this situation and urges the government to consider the evidence in relation
to Australia's obligations under international law. This includes the potential
breaches of international law which are committed when vessels are towed into
Indonesia’s Exclusive Economic Zone, not just their Territorial waters.
The committee recommends that the government
review the evidence provided to the committee in relation to Australia's obligations under
international law, including the encoding of UNCLOS in Australian domestic
The committee believes that there is confusion in the public arena about
Australia's actions under Operation Sovereign Borders and their effect on our
relations with other countries in our region. This is mainly due to the lack of
publicly available information and the government's repeated refusal to comply
with Senate orders relating to OSB matters. Such confusion is also exacerbated
by the government's use of military language to describe OSB matters
and the fact that the joint task force coordinating OSB is led by a military
officer, even though it is a civilian operation under the Migration and Customs
The committee is concerned that officials who appeared at the public
hearing on 21 March relied on the public interest immunity claim previously
used by the Immigration Minister as the basis for refusing to answer questions
on the committee's terms of reference. The committee believes this was not a
proper use of the Senate's resolution of August 2009 establishing a process to
be followed by officials in making a public interest immunity claim.
That the committee recommends the public Interest immunity
claim relating to activities that lead to the breach of Indonesian territorial
waters be referred to the Minister for Immigration and Border Protection for
The committee heard from Mr Pezzullo that it was only due to Freedom of
Information requests received in relation to the joint review report that the
government considered releasing a redacted copy of the report.
The committee does not believe it should take a Freedom of Information claim
for the government to take its accountability responsibilities seriously.
Consideration of the release of a redacted report, further to the publication
of the joint review report's executive summary, should have been a
consideration of government from the outset.
While the committee acknowledges that there may be a need for certain operational
details surrounding OSB to remain confidential, the committee is concerned that
the normal processes of parliamentary scrutiny have been repeatedly frustrated
by the government's unwillingness to provide clear information about OSB
matters to the parliament and the public.
The committee recommends that the Minister for Immigration
table, as soon as possible, an appropriately redacted copy of the joint review
report outlined in his letter of 20 March 2014 to the committee.
The committee notes Mr Pezzullo's comments in relation to the
implementation of recommendation 4 of the joint review report, that work on
updating the operational documents, policies and procedures will be concluded
by mid April 2014.
In the interests of accountability and transparency of
Operation Sovereign Border activities, the committee recommends that the
Minister for Immigration table, as soon as possible after April 2014, a report
regarding the implementation of recommendation 4 of the joint review report.
The committee notes Mr Pezzullo's advice that the implementation of the
revised force preparation training, including the revised training in relation
to UNCLOS (recommendations 3 and 5 of the joint review report) is to start in
May and June 2014 respectively.
In the interests of accountability and transparency of
Operation Sovereign Borders, the committee recommends that the Minister for
Immigration table, as soon as possible after June 2014, a report regarding the
implementation of the revised force preparation training and the revised UNCLOS
The committee notes the joint review report's comments relating to the
delegation without review of the obligation to remain outside Indonesian
From the evidence it received during its inquiry, the committee sees
significant benefits in the agencies involved with Operation Sovereign Borders
conducting a review to determine whether there were any issues in the chain of
command from headquarters to commanders of vessels which may have contributed
to the incursions into Indonesian waters.
The committee recommends that such a review be undertaken
and that the Minister for Immigration table a report with the review findings
by September 2014.
Senator the Hon
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