This has been a most unusual inquiry. Senate inquiries
typically review legislation or examine some element of public policy. This has
been an inquiry into an event and the chain reaction that event set off in the
defence forces, the bureaucracy and the Government. What gave the proceedings
heightened significance was that the ‘children overboard’ claim was made and
given dramatic media prominence immediately after a federal election had been
called in which border protection and concerns about asylum seekers were
central issues. In our remit only the Pacific solution element is the more
usual type of subject for senate committees.
Unsurprisingly, most of our time was consumed by the
‘children overboard’ question. On this subject the Committee has, in reality,
been conducting an investigation. The breadth of that investigation was
significantly expanded when the terms of reference were extended at the start
to include other SIEVs apart from SIEV 4 (the ‘children overboard’ boat). This
brought the tragic story of SIEV
X and the 353 men, women and
children who drowned on its ill-fated voyage within our purview.
The Committee’s approach to the investigative parts of the
terms of reference has been to simply allow the evidence to point the direction
it should take. This approach of following the evidence meant some changes in
normal Senate committee operations. First, the Committee adopted a practice of
not limiting its examination of witnesses by, as is normally done, imposing and
rigidly adhering to a timetable for the day’s proceedings. Instead it took as
long as needed to thoroughly examine each witness.
This left the Committee open to some criticism. Because it
was not possible to be absolutely certain when the next witness would be
called, on occasion, senior officers and key personnel were kept waiting for
long periods and were sometimes required to make last minute alterations to
their other commitments. The Committee apologised then and I apologise now for
that inconvenience. However the Committee believed that if it had not followed
the practice of completing the examination of each witness thoroughly, the
inquiry could have suffered from the more serious criticisms that it was
incomplete, superficial, or worse - a ‘cover up’.
Second, the Committee could not always be sure whom it would
want as the next witness. The inquiry posted a hearing list in advance in order
to keep the story unfolding in as sequential a way as possible. But often the
last witness’s evidence was the key to deciding who the Committee wanted to
hear from next, whether it should get on with the narrative, or spend more time
and speak to more witnesses in order to establish the facts at some decisive
point in the story.
Early on, the press got a little testy about the inquiry
because the Committee would not say if it intended to call Mr
Reith. In the event, Mr Reith was requested
on at least three occasions to appear but the requests were made only when the
Committee believed that it had justifiable grounds for doing so and it had
reached the appropriate stage of the investigation to call him.
Third, the Committee started out coordinating its work with
a liaison group appointed for the purpose by the Australian Defence
Organisation (ADO). This enabled both the inquiry and the ADO
to balance their needs and to program witnesses at mutually convenient times.
While this arrangement was in place it worked well and I wish to thank the
officers concerned for the manner in which they discharged their duties. Soon
after the inquiry commenced, however, this arrangement was terminated by the
Minister for Defence, Senator Hill, and the Committee was told that it would
have to make any requests of the Australian Defence Force (ADF) and the
Department of Defence through the Minister’s office. I never considered this
new arrangement was necessary, adding as it did a new level of complexity and
red tape. Nor did it work well.
The hearing program was slowed down at various points
because of delays in the Minister’s office and key documents were withheld for
an inordinate length of time. Tension developed between the Committee and the
Minister when he began to question the Committee’s procedures, refused to allow
certain witnesses to appear and when he challenged the Committee’s right to pursue
its inquiries in the manner it thought most appropriate.
As well, the Minister’s Chief of Staff, Mr
behaved towards the Committee secretariat in a way that could only be described
as discourteous and unprofessional. In Question Time, prior to the first
hearing, Senator Hill attacked the inquiry as ‘a Labor stunt’. This view seemed
to inform his approach. In other inquiries, even those in which tensions
between political parties have been high, the liaison between ministers, their
departments and the committees has worked smoothly. A notable feature of this
inquiry is that in this case it did not.
The Committee’s decision to follow the evidence meant that
it started the inquiry with the ‘children overboard’ incident itself and made
an effort to establish what actually happened. Next it followed how a message
came to be transmitted that children had been thrown into the sea when they had
not, and how that message travelled inside and outside of the defence chain of
command to the bureaucracy, ministers, the Prime Minister and the press. When
it had been established that it quickly became known among key people that the
‘overboard story’ was false and the media had been misled about the
photographs, the inquiry turned its focus to questions of public accountability
and what was done and by whom to correct the record.
It was in this phase of the inquiry that it hit a brick
wall. The inquiry was able to piece together quite effectively a reasonably
clear picture of what happened about correcting the record up to ministerial
and prime ministerial level. There was enough information to cause the inquiry
to make the majority findings about Mr Reith’s
conduct that appear in the report but it was not possible to go further. The
inquiry was blocked by a cabinet decision. Cabinet decided to fence off
ministerial and prime ministerial conduct from the reach of the inquiry by
refusing access to ministerial and prime ministerial staff and to public
servants serving in ministerial offices at the time.
This inquiry would have been aided considerably, and
possibly able to fully discharge the obligations imposed on it by the Senate
under its terms of reference, if it could have called as a witness the Prime
Minister’s international adviser Mr Miles Jordana, and former minister Peter
Reith’s advisers, Mr Mike Scrafton, Mr Ross Hampton and Mr Peter Hendy. Mr
Scrafton is now a senior public servant with
the Department of Defence. Mr Hampton
is adviser to the Minister for Education Science and Training, Dr
Nelson. Until recently, Mr
Hendy also worked for Dr
Nelson as his Chief of Staff.
Senator Hill went beyond the Cabinet decision and deemed
that it was not appropriate for the Committee to request the appearance of some
witnesses who were members of the ADO,
and he refused permission for them to do so. The two people of interest to the
Committee were Rear Admiral Raydon
Gates and Ms
Rear Admiral Gates had led a
taskforce on issues relevant to the inquiry and Ms
Davies was, and still is, the Defence
Departmental Liaison Officer in the Minister’s office.
For his part, Mr Reith was not entitled to immunity from
this inquiry as he was no longer a serving member of the House of
Representatives, but bolstered by an opinion from the Clerk of the House of
Representatives, he rejected three formal requests to appear. Mr Reith was an
essential witness but I will say more about this later. The Reith case has
sparked a continuing exchange of conflicting opinion between the Clerk of the
Senate and the Clerk of the House about Senate committee powers. I note here
the Committee, by a majority, accepts the views of the Clerk of the Senate.
Because the inquiry attached considerable importance to this matter all the
correspondence relating to it is published as an appendix to this report.
Given the disposition of the Committee to favour the Senate
Clerk’s view, the Committee had to contend with the question: should it
approach the Senate with a request that Mr Reith be compelled to appear before
the committee by way of a summons. The Committee was divided on this issue but
the majority view was that any summons to Mr Reith would be contested in the
courts with the taxpayer having to foot the bill and with the inquiry having to
mark time until the issue was settled.
It is for this reason that the Committee took the unusual step of asking
Mr Stephen Odgers SC to make an assessment of the evidence. This he has done
and his report is available with the Committee’s report.
Unable to pursue the ‘overboard story’ to its conclusion, the
inquiry gave its attention to the Pacific solution element of the terms of
reference and to what has become known as the SIEV X issue. Both these matters
were also plagued by particular problems.
In the case of the Pacific solution, the Committee received
correspondence from many of the asylum seekers who were on ‘the overboard boat’
SIEV 4. The Committee’s jurisdiction is limited to Australia and its
territories. These asylum seekers were in detention on Manus Island at all the
relevant times of this inquiry. This meant that their evidence could not be
heard under privilege, nor could the usual protections be extended to them
should they be adversely treated as a consequence of what they may have said.
It has always seemed to me to be one-sided that the asylum
seekers as key players in the event could not have their evidence heard and
tested by the inquiry. Given the limitations it is not surprising that the
asylum seekers themselves declined to participate in a telephone link-up with
the Committee. Some Committee members questioned the value of any information
obtained by telephone link and this is an important consideration. DIMIA also
advised that if something was said on the link-up that might relate to an
application for asylum, then there was no legal way that information could be
prevented from being used in an assessment of an individual’s eligibility.
Notwithstanding all these concerns, it is still a pity that
the people at the heart of this incident and about whom allegations were made
are known only by photographs, one letter and the balanced and humane
description of them given to us by Commander Banks of the HMAS Adelaide.
Jurisdictional and operational limitations also
circumscribed the extent to which the inquiry was able to examine what happened
in Indonesia up to and including the departure of the ill-fated vessel SIEV X.
Statements of those who survived the sinking of SIEV X and who were picked up
at sea over 24 hours later by Indonesian fishing boats are included in the
records of this inquiry. When they were received these statements were
immediately approved for public release. Anyone reading them cannot fail to be
moved by these accounts of the loss of life, the human suffering and the
tragedy surrounding that catastrophe. While the Committee is divided on some of
the issues of this inquiry it is united in its shock at this event and its
sympathy for the victims.
Separate from the inquiry, Senator Faulkner has raised
concerns about the ‘disruption’ activities in Indonesia in a series of speeches
in the Senate. A majority finding of the Committee is that an independent
inquiry is necessary to ascertain what occurred on that question and other
issues related to SIEV X. In this report we assessed the evidence that was
available to the inquiry but because of the limitations on jurisdiction the
Committee did not feel confident that it could report the full story.
A question has hung over this inquiry that it did not and
could not address. It is ‘Did the overboard story and the emotional reaction it
provoked influence the outcome of the federal election?’ This question invites
a number of subsidiary questions:
- If it did influence the outcome would
the truth have led to a different result?
- Would an appropriate and timely
correction of the record have changed the direction or influenced the
presentation of the issues in the campaign?
- Would the credibility of the key
players have been affected in the judgement of electors if the truth had
been uncovered and exposed outside official channels during the campaign
These are not questions about the duty and obligation of the
government and the public service to keep the community properly informed. They
are speculative questions that go to the politics of the ‘overboard’ issue and
its timing in relation to the federal election. The Committee’s efforts were
aimed at getting at the truth of the matter so there is an accurate public
record of the events. Any judgements about what would have occurred had the
‘overboard’ story never seen the light of day are subjective and for others to
make. A question does arise which is addressed. It concerns what can be done to
prevent a recurrence of the behaviour that led to the public receiving false or
A number of recommendations on this subject have been made
that, if pursued, will go some way to ensuring that these circumstances are not
repeated. As reform measures these recommendations will be successful if
accompanied by a strengthening of the traditional values of the public service.
The outcome of this inquiry opens up a major constitutional
issue: the extent to which the Parliament is able to effectively scrutinise the
actions of the Executive. First, it should be said that the normal
parliamentary means of scrutiny worked very well in this matter. This is
particularly true of the Estimates process that gathered a lot of relevant
information much of which has been incorporated into the inquiry’s evidence.
But ultimately the Executive, in the form of the Cabinet, checked the inquiry’s
ability to examine relevant witnesses. This meant the Executive was able to
exercise its power to prevent full parliamentary scrutiny of itself. This is
not open government. What should be done about it is now an important matter
for national debate.
Of particular note here is also the matter of how Mr Reith
centralised all critical ADF contact with the media through his office. I
acknowledge that Senator Hill has changed this order, but the fact that such an
order did exist raises questions about the manipulation of military information
for partisan political advantage.
The Committee wishes to record its thanks to three separate
- To those witnesses who assisted the
inquiry. It would not have been possible to have conducted such a detailed
examination without their cooperation. Public service witnesses appeared
knowing that their departments had been instructed by Cabinet not to
provide a submission. This meant that the Committee was unable to examine
them against the points made in a departmental statement. That made their
job and our job harder. Most managed this difficulty and the other
pressures the Cabinet decision imposed competently and well. Our thanks go
to them. All the experts that served on our round-table discussion brought
valuable context to the inquiry and alerted us to wider questions as well.
They deserve our thanks.
- The Committee was impressed by the
professionalism of the ADF officers who were closely involved with SIEV 4
and its aftermath. Many of them and others in the chain of command had
attempted to ensure that the public record concerning ‘children overboard’
- During this long and sometimes
difficult inquiry, the Secretariat to the inquiry gave the Committee
unstinting support and professional assistance in every way. Their
commitment and willingness to work long and onerous hours made the
Committee’s task manageable, and especially my own, as Chair. They should
be acknowledged. The Committee’s thanks go to: Mr Brenton Holmes,
Secretary; Mr Alistair Sands, Principal Research Officer; Dr Sarah
Bachelard, Principal Research Officer; Ms Kerry Olsson, Principal Research
Officer (on secondment) and Ms Judith Wuest, Executive Assistant.
Senator Peter Cook