The report of the Select Committee on a Certain Maritime
Incident addresses four major sets of issues. They are:
so-called ‘children overboard’ incident involving the HMAS Adelaide and the vessel known as
SIEV 4, and the management of information concerning that incident by the
Federal Government and Commonwealth agencies;
issues arising from the ‘children overboard’ incident, including the
adequacy of administrative practices in certain Commonwealth agencies, and
the accountability framework for Ministers and their staff;
matters arising out of the Australian Defence Force operation ‘to deter
and deny’ asylum seekers from arriving in the Australian migration zone in
an unauthorised manner by boat, with particular reference to the vessel
now known as SIEV X; and
nature of the agreements reached, the operation and cost of detaining
persons in Nauru and Papua New Guinea as part of the so-called ‘Pacific
In addition, in the first two chapters of the report, the
Committee outlines the broader context for these issues, focusing particularly
on the post-Tampa border protection
regime and the related Australian Defence Force operation, Operation Relex.
This executive summary outlines the main lines of argument
and the findings made in relation to these issues. The Committee emphasises,
however, that the executive summary is unable to convey fully the complex and
detailed nature of the evidence on each of the matters before it. The summary
is accordingly provided as a guide to the report. It is not intended to
substitute for it.
The Committee also notes that it has been considerably
hampered in its work by the refusal of the government to allow certain
witnesses to provide evidence to the inquiry.
A New Border Protection Regime – Chapters 1 and 2
The rescue on 26 August 2001 by the Norwegian container ship
the MV Tampa of Afghan asylum seekers
en route from Indonesia to Australia, and their subsequent transportation to
waters off Christmas Island, proved to be the catalyst for a new border
protection regime intended to prevent unauthorised boat arrivals from reaching
Australia. The number of such arrivals had risen substantially over the
previous two years, from less than a thousand per year to over four thousand, and
there was a view that Australia’s
refugee determination procedures were leading to it being targeted by organised
people smuggling operations.
The timing of the Tampa incident in the lead up to the 2001
Federal election provided an opportunity for a hardline political response to
unauthorised arrivals. The first Chapter of the report outlines in brief the
events which followed the Tampa
rescue, the policy and legislative changes which constituted the new border
protection regime, and the role of the People Smuggling Taskforce in providing
whole-of-government oversight and coordination.
Chapter 1 also examines the disruption and deterrence
activities which were implemented to pre-empt people smugglers and asylum
seekers before they could organise to leave Indonesia.
Since the close of the Committee’s hearings on the inquiry, more information
has emerged on the public record about the nature of this disruption activity.
The Committee considers that the gravity of that information
has raised more questions about the methods and tactics employed under the
auspices of disruption campaign. The Committee therefore believes that a full
independent inquiry into what disruption actions did occur prior to refugee
vessels departing Indonesia
is required. The focus of such an inquiry should be on the activity that Australia
initiated or was instrumental in setting in motion through both its partners in
the Indonesian government and its own network of informants.
The Committee recommends
that a full independent inquiry into the disruption activity that occurred
prior to the departure from Indonesia of refugee vessels be undertaken, with
particular attention to the activity that Australia initiated or was
instrumental in setting in motion through both its partners in the Indonesian
government and its own network of informants.
The second chapter of the report looks at the implementation
of the Australian Defence Force’s expanded role under the new border protection
regime, Operation Relex, and the
extensive inter-agency intelligence capability which informed it. Since 3 September 2001, the ADF has been
tasked with a lead role in the area of unauthorised boat arrivals. It has
designated its corresponding operation as Operation Relex.
involved a significant increase in not only the scope but also the scale of
Australian border protection operations, and particularly the nature of the
assets deployed. The RAN’s major fleet units, frigates, amphibious ships and
auxiliaries, now played a lead role in interception and boarding operations in
addition to Customs and Coastwatch craft. A ‘layered surveillance’ operation,
utilising RAAF P-3 Orions, Navy helicopters, and Coastwatch aircraft, supported
the Navy’s interdiction effort.
Under Operation Relex,
twelve Suspected Illegal Entry Vessels were intercepted between
7 September and 16 December 2001. Where previously the Navy’s role
had been to escort unauthorised arrivals to an Australian port for reception
and processing by relevant agencies, the new ADF role was to thwart their
objective of reaching Australian territory. The new Australian response led to
a corresponding change in the behaviour of the asylum seekers. From being
cooperative and compliant, their behaviour changed to include threatened acts
of violence, sabotage and self-harm, designed to counter the Navy’s strategies.
The Committee finds two aspects of Operation Relex particularly notable. The first is the Royal
Australian Navy’s commitment to the fulfilment of safety of life at sea obligations,
and to meeting the humanitarian needs of those on board the intercepted
vessels. The second notable characteristic is the strictly centralised control
through the Minister’s office of information concerning the operation, which is
examined further in following chapters in regard to the ‘children overboard’
‘Children Overboard’ - Chapters 3 - 6
The basic outlines of the ‘children overboard’ controversy
are by now well known.
On 7 October 2001, the Minister for Immigration, Mr Philip
Ruddock, announced to the media that ‘a number of children had been thrown
overboard’ from a vessel suspected of being an ‘illegal entry vessel’ just
intercepted by the Australian Defence Force. The ‘children overboard’ story was
repeated in subsequent days and weeks by senior Government ministers, including
the Minister for Defence, Mr Peter Reith, and the Prime Minister, Mr John
Howard. The story was in fact untrue.
The peculiar sensitivity associated with the claim that
children had been thrown overboard was that it was made at the beginning of and
sustained throughout a Federal election campaign, during which ‘border
protection’ and national security were key issues. That asylum seekers trying
to enter Australia by boat were the kinds of people who would throw their
children overboard was used by the Government to demonise them as part of the
argument for the need for a ‘tough’ stand against external threats and in
favour of ‘putting Australia’s interests first’.
The key question for the Committee in relation to this issue
Why was the false claim that children had been thrown overboard
made in the first place, and why was it not corrected or retracted prior to the
Federal Election on 10 November 2001?
Questions that fall out of that key issue include:
how did the false claim or mistaken report that
children had been thrown overboard arise in the first place, and how was it
passed to ministers?
who knew, and at what time did they know, that
the report was untrue?
what efforts were made to pass advice to that
effect to ministers, and was that advice adequate?
what was the role of various Commonwealth
agencies in managing this information and in taking responsibility for the
integrity of the public record?
what, if any, role was played by ministerial staff
in promulgating and sustaining the original report after it was known to be
what, if any, was the role played by ministers
and the Prime Minister in promulgating and sustaining the original report after
it was known to be untrue?
At the broadest level, the Committee has found that a number
of factors contributed to the making and sustaining of the report that children
had been thrown overboard from SIEV 4. They included genuine miscommunication
or misunderstanding, inattention, avoidance of responsibility, a public service
culture of responsiveness and perhaps over-responsiveness to the political
needs of ministers, and deliberate deception motivated by political expedience.
It has been the Committee’s task to disentangle those factors as they led
different individuals, and even the same individuals at different times, to act
or to fail to act as they did.
In chapter 3, the Committee outlines the events of 6-10
October 2001 as recorded and reported by the logs, situation reports and
statements of the HMAS Adelaide and
its personnel. The Committee then discusses in detail the evidence pertaining
to a telephone conversation which took place on 7 October 2001 between
Commander Banks and his senior officer, Brigadier Michael Silverstone, out of
which arose the original report that a child or children were thrown into the
water from SIEV 4.
In chapter 4, the Committee discusses how this oral and
uncorroborated report made in the midst of a complex tactical operation came to
be disseminated so quickly and so widely. It outlines how doubts concerning the
veracity of the report arose in the Defence chain of command over the period
from 8 to 11 October, the search for evidence to corroborate it, and the point
at which different elements in that chain reached the conclusion that the
incident had not occurred. Finally, the Committee discusses how photographs
taken of the sinking of SIEV 4 on 8 October came to be publicly misrepresented
as being photographs of the ‘children overboard’ event.
In chapter 5, the Committee outlines the nature of the
advice both about the original report that children had been thrown overboard
and about the misrepresentation of the photographs which came from Defence in
the period from 10 October to 8 November 2001. Advice, of varying comprehensiveness
and authority, went on these matters from Defence to the Minister for Defence
and his staff on eight separate occasions, and to officers of the Department of
the Prime Minister and Cabinet and to the People Smuggling Taskforce on three occasions.
In chapter 6, the Committee examines the role played by Mr
Reith and his staff in sustaining the original mistaken report and the
photographs as evidence for it. It goes on to canvass the evidence which is
available concerning the knowledge of the office of the Prime Minister of
corrective advice from Defence. The Committee then assesses whether, in its
view, officers of the Defence organisation could have done more to ensure that
the record was corrected prior to the election on 10 November.
FINDINGS OF FACT
No children were thrown overboard from SIEV 4.
A report that a child or children had been thrown overboard from
SIEV 4 arose from a telephone conversation between Commander Norman Banks, CO Adelaide, and Brigadier Mike
Silverstone, CJTF 639, which occurred early in the morning of 7 October 2001.
The Government was advised of the report in the first instance
through two channels: Air Vice Marshal Titheridge told the office of Minister
Reith; Mr Bill Farmer, Secretary, Department of Immigration and Multicultural
Affairs, told Minister Ruddock.
Photographs released to the media on 10 October as evidence of
children thrown overboard on 7 October were actually pictures taken the
following day, 8 October, while SIEV 4 was sinking.
By 11 October 2001, the naval chain of command had concluded that
no children had been thrown overboard from SIEV 4. The Chief of Defence Force,
Admiral Chris Barrie, was informed at the very least that there were serious
doubts attaching to the report.
On 11 October 2001, Minister Reith and his staff were separately
informed that the photographs were not of the alleged children overboard events
of 7 October, but were of the foundering of SIEV 4 on 8 October.
On or about 17 October 2001, Admiral Barrie informed Minister Reith
that there were serious doubts about the veracity of the report that children
had been thrown overboard from SIEV 4.
On 7 November 2001, the then Acting Chief of Defence Force, Air
Marshal Angus Houston, informed Minister Reith that children had not been
thrown overboard from SIEV 4.
On four other occasions the lack of or dubious nature of evidence
for the ‘children overboard’ report were drawn to the attention of the Minister
or his staff by officers from Defence.
On no occasion did the Defence organisation produce any evidence
to PM & C, and through it to the office of the Prime Minister, which
corroborated the original report that children had been thrown overboard.
However, on no occasion did the Defence organisation provide definitive advice
to the Department of the Prime Minister and Cabinet or the People Smuggling
Taskforce that children were not thrown overboard from SIEV 4 or that the
photographs were not of that alleged incident.
On 7 November 2001, Minister Reith informed the Prime Minister
that, at the least, there were doubts about whether the photographs represented
the alleged children overboard incident or whether they represented events
connected with SIEV 4’s sinking.
Despite direct media questioning on the issue, no correction,
retraction or communication about the existence of doubts in connection with
either the alleged incident itself or the photographs as evidence for it was
made by any member of the Federal Government before the election on 10 November
Minister Reith made a number of misleading statements, implying
that the published photographs and a video supported the original report that
children had been thrown overboard well after he had received definitive advice
to the contrary.
The Committee finds that Mr Reith deceived the Australian people
during the 2001 Federal Election campaign concerning the state of the evidence
for the claim that children had been thrown overboard from SIEV 4.
It is not possible to make a finding on what the Prime Minister or
other Ministers had communicated to them about this incident due to the
limitations placed on this inquiry by the order of the Cabinet for ministerial
staff not to give evidence.
In addition to these findings of fact, the Committee’s
examination of the evidence has led it to note several features of the
‘children overboard’ affair which it now highlights.
First, the Committee has noted that there were three unusual
aspects to the handling of SIEV 4.
The vessel was identified and intercepted on the afternoon
of 6 October 2001. That evening, a ‘special arrangement’ was put in place in
order to meet a request from Minister Reith that he be briefed early on the
following morning with the latest news on SIEV 4. The arrangement implemented
by Defence to meet this request was for the Commander of the HMAS Adelaide to speak to his superior
officer, Brigadier Silverstone, at a prearranged time early on 7 October 2001
and for Brigadier Silverstone in turn to communicate the content of that
discussion to Air Vice Marshal Titheridge, Head of Strategic Command.
The conversation between Commander Banks and Brigadier
Silverstone in fact occurred in the middle of an operationally hectic period
for the Adelaide, and it was from
this conversation that the report that a child or children had been thrown
overboard emerged. Brigadier Silverstone told the Committee that he would never
have had that conversation had the ‘special arrangement’ not been in place, and
that without that conversation the ‘children overboard’ affair would never have
Also on the evening of 6 October 2001, news of the
interception of SIEV 4 was leaked to the media. The Committee was unable to
determine who was responsible for that leak, but heard from Ms Jane Halton,
then Chair of the People Smuggling Taskforce, that the usual practice was not
to comment on operational details while operations were underway. She was, she
said, surprised that the detail of SIEV 4 was in the public domain by early in
the morning of 7 October 2001.
The third unusual feature of the handling of SIEV 4
identified by the Committee was the ‘heated’ conversation which took place on 8
October between Admiral Barrie and the Secretary of PM & C, Mr Max
Moore-Wilton. Admiral Barrie told the Committee that soon after he had been
advised that SIEV 4 was sinking, he had had a telephone conversation with Mr
Moore-Wilton, who instructed the Chief of Defence Force to make sure that
everyone rescued went on board HMAS Adelaide
and not to Christmas Island.
Admiral Barrie told Mr Moore-Wilton that he could not
guarantee any such outcome, and that safety of life was to be the paramount
consideration. In this emergency, if people had to be rescued and landed at
Christmas Island that would have to happen. Admiral Barrie said that he had
informed the Minister for Defence of this conversation, ensuring that he
understood that the Defence forces were not ‘in absolute control of where
people would end up’.
The sequence of ‘unusual’ features surrounding the treatment of
SIEV 4 - the leaking of the fact of SIEV 4’s interception to the media, the
‘special’ arrangement for Air Vice Marshal Titheridge to contact Brigadier
Silverstone directly for the latest news, and Mr Moore-Wilton’s ‘heated’
insistence that the SIEV’s passengers not be landed on Christmas Island - all
point to the likelihood that the Government had decided to make an example of
SIEV 4 was the first boat to be intercepted after the announcement
of the Federal Election. Its handling was to be a public show of the
Government’s strength on the border protection issue. The behaviour of the
unauthorised arrivals was to be a public justification for the policy. It is in
this context that one might best understand why the Secretary of PM & C
wanted to ensure that the asylum seekers involved not set foot on Australian
territory. It is also in this context that it is possible to understand why it
may have been thought by the Government to be politically difficult to correct
or retract claims made in relation to the passengers aboard SIEV 4 once they
were suspected or known to be false.
A second important feature of the ‘children overboard’
affair was the interaction between Minister Reith and Ms Jane Halton, Chair,
People Smuggling Taskforce, on 10 October 2001.
It was clear in evidence to the Committee that, up until 10
October, Ms Halton and her colleague Ms Katrina Edwards, First Assistant
Secretary, Social Policy Division, PM & C, were dissatisfied about the
amount of detail being provided to them about the alleged ‘children overboard’
incident from Defence. From about 8 October to 10 Octoberthey were,
through their staff, actively seeking further details from Defence’s Strategic
In response to this search, Strategic Command sent a
chronology of events relating to SIEV 4 during the day on 10 October. At the
end of the chronology, there was a series of four bullet points under the
heading, ‘EVENTS’. The last bullet point, which has also been described as a
There is no indication that children were thrown overboard. It
is possible that this did occur in conjunction with other SUNCs jumping
On the evening of 10 October, at the same time as Ms Edwards
was drawing this bullet point to Ms Halton’s attention, Minister Reith rang Ms
Halton directly. At the end of the ‘unusual’ event of Mr Reith’s phone call, he
told Ms Halton that he had just released photographs to the media which showed
children having been thrown into the water from SIEV 4. He also told her that
there was a video of the event, and that witness statements were being
collected from the crew.
Although Ms Halton maintained that she had no recollection
of having been shown the chronology and its bullet point by Ms Edwards, she
imagined that any doubt that may have been raised by this information was
simply overridden by the evidence of which Mr Reith spoke.
Ms Halton insisted that, in addition to the advice from Mr
Reith, and the lack of any definitive advice from Defence confirming that the
incident did not happen, ‘our interpretation of the facts of the case’ was put
in front of the evening meeting of the People Smuggling Taskforce, and no one
demurred from the view that it had been established that children had been
The Committee notes, however, that the talking points
provided to the meeting on 10 October 2001 were derived from the Strategic
Command chronology. They referred to ‘15 suspected unauthorised arrivals’ who
‘either jumped or were thrown overboard’, but made no reference to children
thrown overboard. If the ‘facts’ of the children overboard story were presented
and agreed at the meeting, then they certainly were not highlighted in the
material prepared for subsequent public consumption. These talking points were
provided to Mr Miles Jordana, International Adviser to the Prime Minister, and,
at Ms Halton’s direction, to staff in the offices of Minister Ruddock, Minister
Reith and Minister Downer.
The Committee is puzzled as to why, if Ms Halton considered
that the claim that children had been thrown overboard from SIEV 4 had been
definitively established, that claim was not reflected in the talking points
prepared and disseminated on 10 October;
The Committee also notes, however, that Strategic Command
never returned to the PST with definitive advice overturning the report that
children had been thrown overboard. The Committee is aware that officers from
PM & C had had to seek permission from the office of the Minister for
Defence to pursue their earlier inquiries with Strategic Command. It would
presumably have been very difficult for Ms Halton’s division tacitly to
register its scepticism of Mr Reith’s advice by continuing such investigations.
In relation to Mr Reith, the Committee notes that:
at the time of Mr Reith’s telephone call to Ms
Halton, his senior military adviser, Mr Mike Scrafton had been informed that
the video did not show children being thrown overboard. No one knew what the
witness statements would contain, but simply that at best they ‘may’
corroborate the original report. In relation to the photographs, the Minister’s
media adviser, Mr Ross Hampton, had been left a voicemail message, which he
claims that he never got, telling him that they were being connected to the
wrong events. He had certainly been told that there were doubts attaching to
despite this lack of evidence and in the face of
public and official questioning of the allegations, the Minister confirmed the
veracity of the original report in the media and advised Ms Halton, the senior
official responsible for the whole-of-government management of ‘border
protection’ issues, that he had evidence which backed up the claim.
A third feature of the ‘children overboard’ affair
highlighted by the Committee relates to the role played by senior officers in
the Australian Defence organisation in advising Government and senior officials
of problems with the original story.
The Committee analyses in particular the adequacy of the
advice provided by Admiral Chris Barrie, Chief of Defence Force, Air Vice
Marshal Alan Titheridge, Head of Strategic Command and the senior Defence
representative on the People Smuggling Taskforce, and Dr Allan Hawke,
Secretary, Department of Defence.
The Committee was struck by the fact that none of these
three senior officers considered themselves certain until well after the
election on 10 November 2001 that children had not been thrown overboard from
SIEV 4 on 7 October 2001. Both Admiral Barrie and Dr Hawke knew, they said,
that the photographs had been wrongly connected with the alleged child throwing
incident, but Air Vice Marshal Titheridge maintained that he had been unaware
of even that fact.
As a consequence, none of these three officers provided
definitive advice to government concerning the veracity of reports of the
incident, although Admiral Barrie communicated the fact that there were
‘serious doubts’ about it to Minister Reith. Admiral Barrie did inform the
Minister that the photographs were being wrongly portrayed and Dr Hawke did
instruct his Head of Public Affairs and Corporate Communication to inform the
Minister’s office of the same fact. Dr Hawke did not himself directly
communicate, either orally or in writing, with the Minister on this issue, and
Admiral Barrie’s discussion with the Minister did not, he said, at any stage go
to the question of what was to be done to correct the public record.
At issue, for the Committee, was the question of why none of
the three most senior officers in the Australian Defence Organisation
considered himself to be in a position to provide serious and robust advice to the
government in relation to the truth of the original report that children had
been thrown overboard, or in relation to the need for the correction of the
public record in relation to the photographs.
The Committee acknowledges that part of the explanation here
is that all three were managing unprecedentedly heavy workloads. Whether
children had been thrown overboard or not was not significant from a military
or operational point of view, and resolution of the question was, they say,
therefore accorded very little priority. However, the Committee also notes that
all three officers did in fact address the matter at least once. Each had the
opportunity to seek and provide definitive advice, but did not do so.
Admiral Barrie neither accepted the judgement of his chain of
command that children had not been thrown overboard, nor did he possess any
additional information on the basis of which he could justify holding to a
different conclusion. It seems to the Committee that Admiral Barrie did not so
much make an assessment of the advice
from his chain of command, so much as make a decision to stick with the original verbal report.
Given that Admiral Barrie had been forthrightly advised by COMAST
and Chief of Navy that the photographs were wrong and that the Minister was on
the public record stating an untruth, the Committee is of the view that Admiral
Barrie should have been determined to ensure that the minister understood
clearly that there was an error and that the public record needed correcting.
The vague nature of Admiral Barrie’s statements to the Powell and
Bryant inquiries concerning the advice he had given to the Minister prior to 10
November 2001, and Admiral Barrie’s adherence to his original position through
until 24 February 2002, had the effect of protecting the Minister’s position in
the face of various findings and assessments to the contrary.
Air Vice Marshal Titheridge failed to register the
importance of clarifying the truth of the report that children had been thrown
overboard, despite having twice been directly asked to provide evidence and
advice on the matter by the Chair and another member of the People Smuggling
Dr Hawke was remiss in failing to press Minister Reith on
the question of whether he intended to correct the public record in relation to
Accountability – Chapter 7
Many of the questions and concerns that animated the Select
Committee’s inquiry arose from considerations of accountability. Key features
of the management and distribution of information about the ‘children
overboard’ incident and its aftermath stand out as inimical to the
transparency, accuracy and timeliness requirements that are vital for proper
accountability. As a consequence, fair dealing with both the public and the
agencies involved was seriously prejudiced.
Several features contributed to the accountability problems
that marred the ‘children overboard’ affair. These included:
a purist view of the Defence ‘diarchy’ which
militated against clear, comprehensive and accurate advice being provided to
the Minister for Defence;
the strict control by the Minister’s office of
information related to Operation Relex which prevented normal checks and
balances from occurring, and hampered the whole-of-government approach to
ministerial staff inserting themselves into both
the military and administrative chains of command, thereby destabilising proper
operational practice and reporting back.;
an inadequate governance framework within the
People Smuggling Taskforce which failed to clearly define its accountability
and reporting arrangements with the participating agencies;
the tendency of ministerial staff to act as
quasi-ministers in their own right, and the lack of adequate mechanisms to
render them publicly accountable for their actions.
The Committee acknowledges the complexity of accountability
in modern governance arrangements, and accepts the fact that there is a
continuum of accountability relationships, both vertical and horizontal,
between the public service, the government, the parliament and Australia’s
citizens. In the whole-of-government approaches involving discrete agencies
working collaboratively towards the same policy outcome, notions of
‘navigational competence’ and ‘the proper use of authority across a multirelationship
terrain’ seem particularly apt. Instead of thinking about a ‘line of
accountability’, one should think in terms of a ‘culture of responsibility’.
The ‘diarchy’ and accountability
The Defence ‘diarchy’ is ostensibly about bringing together
the responsibilities and complementary abilities of public servants and
military officials. But there remains, between the CDF and the Secretary, a
mandated divide between ‘operational’ responsibility and the management of
other Defence activities which has resulted in the adoption of a ‘purist view’
of the diarchy. This purist view seems to be more extreme than is necessary to
enable the CDF to run military operations without interference. It impedes the
kinds of interactions needed to effectively discharge Defence’s mission ‘to
defend Australia and its interests’, especially given a whole-of-government
perspective and its attendant responsibilities and accountabilities.
The Secretary of Defence, Dr Hawke, advised the Committee
that he refused to cut across the CDF by giving advice to the minister on
‘operational’ matters that were properly the responsibility of the CDF. This
applied notwithstanding that Dr Hawke knew about the misrepresentation of the
photographs, and the absence of corroborating evidence in Defence intelligence
material and reports.
The diarchy is not an end in itself. It is meant to
facilitate accuracy, timeliness and accountability. It is certainly not meant
to be an impediment to full and frank advice going to the minister.
Departmental secretaries have a particularly important part to play in serving
the government as a whole, and especially in ensuring that they convey to their
ministers advice on issues that may have a political dimension. The diarchy
inhibited Dr Hawke from discharging those responsibilities. In short, the
diarchy contributed to the failure by ministers to correct the public record.
The diarchy concept served the
Australian Defence Organisation well during the period where received notions
of its purpose emphasised its fundamentally military functions. Now that the
ADO’s mission has shifted to ‘defend Australia and its national interests’ it
has broader tasks and functions that demand a more nuanced articulation of the
The diarchy proved
inimical to the effective handling of the ‘children overboard’ controversy. In
relation to its impact on accountability, the pursuit, by the ADO’s leaders, of
a purist view of the Defence diarchy:
- constrained the nature, timeliness and
frankness of advice available to the minister from the defence organisation as
a whole, thereby contributing to the failure to correct the record concerning
the claims that children were thrown overboard from SIEV 4;
- militated against the proper exercise
of the kinds of (horizontal) accountability necessary where whole-of-government
operations are concerned; and
- is not consistent with the day-to-day
practical realities and interactions between military and civilian personnel
when they are involved in matters which go beyond conventional notions of
The restrictive arrangements put in place for the management of
information concerning Operation Relex were against the best interests of the
ADF and contrary to conventional public affairs practices, including those
being pursued with respect to other operations in which the ADF was involved.
In particular, the Operation Relex Public Affairs Plan and Defence Instructions
(General) No.8 required by Minister Reith were inimical to ensuring the
integrity of information flowing to the Australian public about border
The People Smuggling Taskforce
The Committee has examined the operations of the People
Smuggling Taskforce in the light of all contemporary notions of public sector
accountability. The saga of ‘children overboard’ reveals quite starkly some of
the vulnerabilities to which whole-of-government approaches are subject. As the
value and frequency of such approaches increases, more intense becomes the
imperative that they be conducted in a robust and coherent way. The
participating agencies must be effective collaborators without putting at risk
their discrete responsibilities. This inevitably means adjustments to ‘business
as usual’, and such adjustments must be understood, accommodated, and
communicated within each agency.
According to its chair, Ms Jane Halton, the People Smuggling
Taskforce was set up and run on the basis that it provided advice on policy and
operational issues as they arose. One of the group’s key jobs was information
exchange to ensure that all agencies were kept aware of relevant and emerging
facts. On most occasions, Taskforce meetings would result in the drafting, by
Ms Halton and PM&C officers, of advice or briefings for the Prime Minister.
Taskforce members were not always directly involved the drafting of this
advice, a task that appears to have been ‘jealously guarded’ by PM&C.
Copies of the advice were never distributed back to the participating Taskforce
accountability of this Taskforce was, in the Committee’s view, not simply a
line of accountability to the Prime Minister, for example. It should have
embraced the departments who both informed the Taskforce and had to implement
the decisions which arose from its advice. It required the kind of
accountability better expressed by the phrase a ‘culture of responsibility’.
The Taskforce comprised high level officials who worked on
the assumption that the contributions from the individual members were
authoritative. The input of flawed
information on the morning of 7 October cannot result in the Taskforce’s being
blamed for including ‘children thrown overboard’ in the advice that was sent to
the Prime Minister that evening. It was the rapid verbal transmission of the
flawed information out of the group as a result of a phone call to a Taskforce
participant from the Minister for Immigration that resulted in its quick entry
into the public arena, thereby triggering the controversy.
Halton’s view to the contrary, the Committee contends that the political import
of the ‘children overboard’ advice would not have been lost on the senior
figures who comprised the Taskforce. This was potentially headline-making
information, and Taskforce members would have been under no illusion about the level
of public interest it would arouse.
It is unfortunate that
the ‘children overboard’ report had barely been presented before it was passed
outside the key group responsible for providing accurate, timely and considered
advice to the government. The source of the report, AVM Alan Titheridge, who
conveyed it by phone to the PST chair (Ms Halton) was not present to
contextualise the information, or to caveat it with appropriate reference to
its status, or to explain how it emerged as a result of a special arrangement
which had extracted the information out of the normal chain of command.
The Taskforce meeting of
7 October was described by one participant as ‘shambolic’ with ‘mobile phones
ringing constantly.’ The Committee is not surprised by, and understands, the
intense dynamics that were manifest at the meeting. What the Committee finds
unacceptable is that the structural and procedural framework of the Taskforce
operations was not sufficiently robust to deal with the demanding, highly
fluid, and frequently dramatic nature of the task for which it was responsible.
Such weaknesses become even more significant in the context of the Taskforce
operating during a period when caretaker conventions are meant to apply.
The People Smuggling Taskforce received a report that a child had
been thrown overboard from SIEV 4 and included that report in formal advice
prepared for the Prime Minister. The report that a child had been thrown
overboard from SIEV 4 was also passed verbally outside the Taskforce when the Minister
for Immigration contacted a Taskforce member by phone early in its meeting on 7
The Taskforce failed to
observe certain key principles of best practice in the conduct of its
operations, thereby exposing itself to inappropriate levels of risk in the
management of information. The Taskforce failed to establish at the outset a
control structure appropriate to the nature of the activities upon which it was
embarked. Overall, it lacked a clear governance framework defining
accountability and reporting arrangements and the roles and responsibilities of
the various participants. In particular:
Copies of advices to the government prepared by the Taskforce and
other outcomes of Taskforce deliberations, were not distributed to the
participating agencies that contributed to those deliberations, thereby denying
agencies the opportunity to correct errors or to clarify misleading
The Taskforce’s proceedings and decisions were not sufficiently
well minuted, thereby preventing a reasonable record of the Taskforce’s
activities from being available to its many participants, and rendering the
activities of the Taskforce largely inaccessible to subsequent scrutiny.
There was considerable variation in the manner of ‘reporting back’
by participants to their home agencies. In many instances it was insufficient
to ensure a coherent engagement of the agencies with the Taskforce and
inhibited the adequate ‘hand over’ of advice between the various
representatives from the same agency who attended Taskforce meetings on
Within the Taskforce and between the Taskforce and agencies and/or
ministers, information flows were often poorly managed with inadequate
attention being paid to risk mitigation and the detection and correction of errors
The Committee is not
questioning the integrity of the individual participants on the Taskforce, but
finds substantial weaknesses in its basic administrative operations , including
record keeping, risk management and reporting back.
The Committee recommends
that the Australian Public Service Commission convene a Working Group that
includes representatives of the Australian National Audit Office and the
Department of Prime Minister and Cabinet with the task of producing comprehensive,
service-wide guidelines for the establishment, operations and accountabilities
of Inter-Departmental Committees (IDCs). The report of the Working Group shall
be published as part of the Better
Practice series produced by the ANAO. On the production of such a report,
individual agencies shall develop a manual for the participation of its staff
in IDCs which are consistent with the report while attending to the specific
operational and administrative arrangements of the agency concerned.
The Committee recommends
that pending the development of a service-wide approach to the operation of
IDCs, as an interim measure the Department of Defence should promulgate to all
agencies a copy of its Guidelines regarding the participation of Defence
personnel in whole-of-government committees. Agency heads should ensure that
their personnel observe similar practices until such time as whole-of-service
guidelines are available.
The Committee recommends
that the Australian Public Service Commission prepare a discussion paper on
record-keeping in the Australian Public Service with a view to the development
of a service-wide policy and practical guidelines on this issue for public
The Committee recommends
that the Australian Public Service Commission, through its Leadership, Learning
and Development Group, make provision for executive and senior executive level
public servants, as part of their professional development obligations, to
undertake specific training in the principles and practical exercise of
accountability associated with whole-of-government operations.
The Committee recommends
that the Australian Public Service Commission, in consultation with the
Department of Prime Minister and Cabinet, prepare guidelines addressing the
responsibilities of agency heads in circumstances where a minister fails to act
on advice which corrects factual misinformation of public importance. The
guidelines should give particular consideration to ensuring that the Prime
Minister is provided with the correcting information, if the Minister refuses
to correct the public record.
Ministerial advisers, ministers and accountability
The Committee’s inquiry has highlighted a serious
accountability vacuum at the level of ministers’ offices. It appears to be a
function partly of the increased size of ministers’ staff, but more
significantly of the evolution of the role of advisers to a point where they
appear to enjoy a level of autonomous executive authority separable from that
to which they have been customarily entitled as the immediate agents of the
While ministers and public servants regularly account for
their actions directly to parliament and by appearance before its committees,
this is not the case for ministerial advisers. In the past, it has been
generally accepted that advisers’ accountabilities are rendered via ministers,
it being understood that advisers act at the direction of ministers and/or with
their knowledge and consent. This seems to be no longer a legitimate
There now exists a group of people on the public payroll –
ministerial advisers – who seem willing and able, on their own initiative, to
intervene in public administration, and to take decisions affecting the performance
of agencies, without being publicly accountable for those interventions,
decisions and actions. The Committee has considerable sympathy for the view
that ministerial advisers and public servants should have similar public
Ministerial advisers are appointed under the Members of Parliament Staff Act, (MoPS Act). Under this Act, the Prime
Minister establishes conditions of employment for all ministerial staff, on an
individual basis. The Act does not require those conditions to take any
particular form. The main guidance given to ministerial staff lies in the Prime
Minister’s Guide on Key Elements of
Ministerial Responsibility. Section nine of the Guide concerns ‘ministerial staff conduct’. Most of its content
pertains to conflict of interest issues – essentially those between advisers’
individual self interest and the interests of their minister. The Committee is
concerned by the lack of congruence between the Prime Minister’s Guide on Key Elements of Ministerial
Responsibility and what is contained in the Members of Parliament Staff Act.
The Committee has detailed in its Report the role played by
the Defence minister’s staff in the handling of the ‘children overboard’
affair. The Committee is deeply disturbed by many of the actions and omissions
attributable to them. They played a significant part in the failure of
ministers to correct the public record. Their interactions with public servants
and Defence officials, and the way in which they managed information flows in
and out of ministers’ offices, raise numerous questions about the
appropriateness of their performance, let alone matters of courtesy and fair
Throughout its inquiry the Committee, as a result of a
cabinet decision, has been denied access to the ministerial staff in question.
The Minister for Defence (Senator Robert Hill) has also refused the appearance
of certain officials who, as public servants, do not fall under the cabinet
prohibition on the appearance of MoPS Act
staff. Such bans and refusals are anathema to accountability.
The Committee sought the views of both the Clerk of the
Senate and the Clerk of the House of Representatives on the matter of whether
any immunities attach to ministerial advisers with respect to appearing before
parliamentary committees. The Committee was also provided with a legal opinion
by Bret Walker SC which concluded that ‘former Ministers and Ministerial staff
have no immunity from compulsory attendance to give evidence and produce
documents to a Senate committee.’ This opinion was consistent with the advice
provided by the Clerk of the Senate.
Faced with the continued refusal of prospective witnesses to
respond to invitations to appear, and with correspondence from ministers
indicating that advisers and certain officials would not appear, the Committee
decided not to seek to compel their attendance, and thereby expose the advisers
and officials to the risk of being in contempt of the Senate should they not
respond to the summons. Part of its reason not to summon was based on the
Senate resolution that it would be unjust for the Senate to impose a penalty on
a person who declines to provide evidence on the direction of a minister. The
penalties for contempt include a gaol term and/or a heavy fine.
Instead, the Committee resolved to appoint an Independent
Assessor to perform the following task and report to the committee:
To assess all evidence and documents relevant to the terms of
reference of the committee, obtained by the committee or by legislation
committees in estimates hearings, to:
determine what evidence should be obtained from the persons
referred to in paragraph (1) [Former minister Reith and his advisers], and what
questions they should answer, to enable the committee to report fully on its
terms of reference; and
formulate preliminary findings and conclusions which the
committee could make in respect of the roles played by those persons with the
evidence and documents so far obtained.
An eminent barrister (Stephen Odgers SC) was duly recruited
to fulfil the role of 'Independent Assessor'. His report was tabled in the
Senate along with the Committee’s Report.
The Committee received evidence from expert witnesses about
best practice in public administration and accountability, and noted in
particular the promulgation in the United Kingdom of a Code of Conduct for Special Advisers. Part of the UK initiative
includes the establishment of a complaints structure to address any public
servant’s concern that an adviser has acted beyond their authority or in breach
of the Code.
The Committee believes that two courses of action are needed
to satisfactorily resolve the issues around ministerial advisers that have been
brought sharply into focus as a result of the ‘children overboard’ affair. The
first requires the bringing of ministerial advisers properly within the scope
of parliamentary committee scrutiny, in a manner similar to that which
currently applies to public servants. The second requires the articulation of a
Code of Conduct and Set of Values for ministerial advisers within a legislative
framework – possibly a modified MoPS Act.
Such a code might include general guidelines as to how advisers might go about
their business, and what limits might be placed on their power to direct public
servants. It might also be desirable for the Code to state what they cannot do.
In the Committee’s view, the issue of integrity of public
information lies behind much that has been of concern to the Inquiry into a
Certain Maritime Incident. The Committee examined the role of the former Minister
for Defence (Mr Reith) in this respect, and considered the question of
ministerial accountability and the extent to which Mr Reith fulfilled his
accountability responsibilities. In particular, the Committee assessed Mr
Reith’s performance against the requirements of the Prime Minister’s Guide on Key Elements of Ministerial
Throughout the ‘children
overboard’ affair, Mr Reith failed to adhere to the Prime Minister’s Guide. Mr Reith’s shortcomings were
manifest not only in his own public statements and his interactions with
Defence officials, but also in his communications with the Prime Minister and
in his mismanagement of the advisers for whom he was responsible. The
Committee is in no doubt that the conduct of former Minister Reith in relation
to the ‘children overboard’ affair undermined public confidence and severely
weakened the trust between the Defence department and the ministerial office.
Accountability extends beyond an individual minister to the
executive as a whole, especially where the executive is pursuing a policy on a
strong whole-of-government basis. The executive as a whole has been very keen
to take the credit for what it regards as a successful operation on border
protection and the handling of asylum seekers. In the Committee’s view, the
executive is therefore similarly obliged to take corporate responsibility for
In particular, the Committee notes that:
- Within hours of the alleged incident
having taken place government ministers were on the public record
condemning the SIEV 4 occupants for their abhorrent attempts to confect a
‘safety of life at sea’ situation.
- Within days, the Defence chain of
command had determined that the incident had not occurred. During the days
and weeks that followed questions continued to be asked of, and statements
continued to be made by, senior government ministers, concerning the
events. The public record remained uncorrected throughout – for some a
deliberate deceit, for others an unwitting perpetuation of a falsehood because
of inadequate advice.
- The findings of the Routine Inquiry
by Major General Powell (the Powell Report) formally repudiated the
original report of ‘children overboard’, as did the Bryant Report, tabled
in the parliament by the Prime Minister. A period of four months had
- The CDF, Admiral Barrie, finally
conceded in late February 2002 that children had not been thrown overboard
from SIEV 4. The government’s response – instead of being a forthright
acknowledgment of the sustained error - was one of grudging acceptance of
the CDF’s advice, combined with a reiteration of its defence of ignorance
due to faulty advice.
The Committee notes that none of the ministers closely
involved in the ‘children overboard’ affair appear to have taken any action to
reprimand or discipline advisers or officials who have performed either
inadequately or inappropriately in their various roles. It is reasonable to
infer, therefore, that they had acted with ministerial approval and that the
government was not displeased with their conduct.
Moreover, the government’s attitude to the Senate Inquiry
into a Certain Maritime Incident has been characterised by minimal cooperation
and occasionally outright resistance. During the early days of the Inquiry, and
notwithstanding that some agencies had already indicated to the Committee that
they were preparing submissions to it, the government prohibited Commonwealth
agencies from providing submissions. Cabinet also made a decision, about which
the Committee learned via media reports, that it would not allow MoPS Act staff (ministerial staff) to
appear before the Committee.
Even though the Prime Minister was explicit in telling the
parliament that the ban affected only MoPS
Act staff, and that public servants would be allowed to appear, the Minister for Defence (Senator Hill)
refused permission for certain public officials to appear. In the Committee’s
view, the government’s actions during the Inquiry into a Certain Maritime
Incident do not promote transparency, and are inimical to accountability.
It is imperative that the executive accept corporate
responsibility for, and deliver corporate accountability in respect of, any
failures associated with the whole-of-government approach to people smuggling.
These failures, as this report has described, include acts and omissions by
senior officials, inadequate interdepartmental committee procedures, and the
involvement of ministerial advisers and a former minister in the deception of
the public about events surrounding SIEV 4.
The actions of the then minister, Mr Reith, and of key members of
his staff, undermined important aspects of the relationship between the ADF and
the government, with adverse consequences for accountability.
There is a serious accountability vacuum at the level of
ministers’ offices arising from the change in roles and responsibilities of,
and the kinds of interventions engaged in by, ministerial advisers. In
It is no longer the case that advisers’ accountabilities are
adequately rendered via ministers’ accountability to parliament because it can
no longer be assumed that advisers act at the express direction of ministers
and /or with their knowledge and consent. Increasingly, advisers are wielding
executive power in their own right.
Advisers are increasingly inserting themselves into agencies below
the level of agency senior managers, thereby intervening inappropriately in
agency operations and corrupting the proper administrative channels or chain of
command. In so doing they are tending to create confusion and undermining trust
and procedural fairness and integrity. There are at present no direct and
transparent mechanisms by which advisers can be called to account for such
The provisions of the MoPS
Act under which advisers are employed no longer provides an appropriate
institutional framework for that employment. In particular:
Its provisions are inappropriate to the needs of contemporary
public administration and fail to capture important ethical and accountability
requirements which should be observed by people employed under the MoPS Act.
There is a lack of congruence between the MoPS Act and the relevant sections of the Prime Minister’s Guide on Key Elements of Ministerial
Responsibility dealing with ministerial staff.
The former Minister for Defence (Mr Reith) was, on several counts,
in breach of the requirements of the Prime Minister’s Guide on Key Elements of Ministerial Responsibility. In particular:
Mr Reith undermined public confidence in himself and in the
government by his handling of the ‘children overboard’ controversy during the
period October-November 2001, and in the course of various inquiries related to
the matter conducted by Defence, PM&C and the Senate.
Mr Reith was not honest in his public dealings in that, having placed
inaccurate statements on the public record, he persisted with those statements
having received advice to the contrary, and did not seek to correct any
misconceptions arising from his statements.
Mr Reith engaged in the deliberate misleading of the Australian
public concerning a matter of intense political interest during an election
period. Mr Reith failed to provide timely and accurate advice to the Prime
Minister concerning the matters associated with the ‘children overboard’
Mr Reith failed to cooperate with the Senate Select Committee
established to inquire into the ‘children overboard’ controversy, thereby
undermining the accountability of the executive to the parliament.
Mr Reith failed to respect the conventions of the relationship between
a department and a minister as specified in the Prime Minister’s Guide. In particular, Mr Reith required
the Department of Defence to act in ways which called into question their
political impartiality – in express contravention of the Prime Minister’s Guide.
Mr Reith bears responsibility for the haranguing interventions of
his ministerial staff into the Department of Defence, and for their failure to
adequately assess and give proper weight to advice from the department. Mr
Reith therefore failed to maintain the standards specified in the Prime
Minister’s Guide with respect to the
conduct of ministerial advisers.
Mr Reith and his staff frequently acted in ways which undermined
the establishment and maintenance of trust between public servants and the
ministerial office, thereby contravening the provisions of the Prime Minister’s
Throughout the Inquiry into a Certain Maritime Incident, the
actions of the government have militated against the efficient and
comprehensive conduct of the Committee’s activities. In particular:
The government directed Commonwealth agencies not to provide
submissions to the Committee. Such an action is almost unprecedented and
contravenes the accountability obligations of the executive to parliament.
The Minister for Defence refused to agree to the appearance of
certain Commonwealth officials in breach of a government undertaking that
officials other than MoPS Act
employees would not be prevented from appearing before the Committee. The
Minister’s refusal hampered the Committee in fulfilling its obligations to the
The Committee recommends
that the Minister for Defence develop a clear statement of the roles,
responsibilities, accountability expectations and practical implementation of
the so-called ‘diarchy’ in Defence and of the relationship of the ‘diarchy’ to
the Minister. Such a statement should be articulated in the Ministerial
Directive that specifies the outcomes required of Defence and the manner in
which accountability for them is to be rendered to the Minister.
The Committee recommends
that the Australian Defence Organisation should develop operational and
administrative procedures that give practical effect to the ‘diarchy’ as newly
articulated in that Ministerial Directive. In particular, Defence procedures
should ensure that the Department’s involvement in whole-of-government
operations proceed via senior officers from both the military and civilian arms
of Defence working as a team.
The Committee recommends
that the Chief of the Defence Force and the Secretary of the Department of
Defence jointly develop a statement of Preferred Public Affairs Protocols to
serve as guidelines by which future ministerial directives concerning public
communications might be formulated. The Preferred Protocols should optimise the
autonomy of the ADF and the Department of Defence in deciding the level and
nature of operational information communicated direct to the press and the
public. The Protocols should also indicate the kinds of circumstances in which
departures from the Preferred Protocols might be appropriate, and all such
departures should be authorised by the minister in consultation with the CDF
The Committee recommends
that an appropriate parliamentary committee develop recommendations concerning
suitable frameworks, mechanisms and procedures by which ministerial advisers
may be rendered directly accountable to parliament in ways commensurate with
those which currently apply to public servants.
The Committee recommends
that the Australian Public Service Commission convene a Working Group of senior
officials of the Department of Prime Minister and Cabinet and senior
parliamentary officers of both Houses of Parliament, to develop a Code of
Conduct for ministerial advisers incorporating a Statement of Values
commensurate with Conduct and Values provisions that apply within the
Australian Public Service. The report should also make any recommendations
concerning mechanisms for dealing with any breaches of such a Code, or the
handling of complaints arising from the actions of ministerial advisers.
The Committee recommends
that, on the basis of the APSC Working Group report, and of the report of the
parliamentary committee addressing the accountability of ministerial advisers,
the Minister Assisting the Prime Minister for the Public Service amend the
existing MoPS Act. This amended
legislation should incorporate a Code of Conduct and Statement of Values for
ministerial staff in a manner similar to the Australian Public Service Act 1999.
It should also establish relevant mechanisms for dealing with breaches
The Committee recommends
that the Prime Minister ensure that his Guide
on Key Elements of Ministerial Responsibility is revised so as to ensure
that it is consistent with any new legislation or parliamentary procedures
introduced to regulate the conduct of ministerial advisers and to render them
SIEV X - Chapters 8 and 9
At about midday on 19 October 2001, a day after departing
Indonesia bound for Christmas Island, a vessel organised by people smuggler Abu
Qussey and laden with nearly 400 people foundered. Close to 24 hours later two
Indonesian fishing boats picked up 44 survivors. 352 people drowned when the
boat now known as SIEV X sank.
During the Committee’s inquiry, serious questions were
raised about the extent of Australia’s responsibility for and response to the
tragedy of SIEV X. In particular, the following questions were posed:
whether Australian agencies could have found and
rescued the vessel before it sank;
whether Australian agencies could have rescued
the passengers and crew of SIEV X from the water; and
whether the fact that no specific search and
rescue operation was mounted for SIEV X was evidence either of intelligence
failure or of negligence in relation to the welfare of the vessel’s passengers
In evaluating the Australian response to the SIEV X episode,
the Committee took note of three important factors. These factors are essential
to understanding not only how the SIEV X intelligence was interpreted but also
the extent to which it could have affected operational decisions.
First, the operational climate surrounding SIEV X involved
reports of a ‘surge’ in possible arrivals in the people smuggling pipeline,
with up to six vessels expected to leave Indonesia in close succession. The
build-up of people and boats led to an expansion in Australia’s disruption
campaign within Indonesia. It would also have translated into increased
intelligence traffic on potential boat and people arrivals, with a
corresponding increase in the burden for intelligence staff sifting through
Second, the intelligence Operation Relex received on
possible boat arrivals from Indonesia was imperfect and treated with caution.
It suffered from four main shortcomings. Intelligence sources were often
unreliable and difficult to corroborate. The intelligence itself was of uneven
quality, marred by contradictory information and tended to inflate the numbers
of expected boats. Tracking boat movements was a particular problem for
intelligence analysts. It was common for intelligence to report vessels as
departing Indonesia, only for it to emerge later that the vessels were delayed,
had moved to another port or turned back due to weather conditions, mechanical
failure or other reasons. All of these constraints bred an air of scepticism
about the credibility of the intelligence among those dealing with it, and a
wariness about making decisions based on it without corroborating information.
Third and relatedly, although an extensive intelligence
system sat behind Operation Relex, intelligence played a limited role in daily
operational decisions. The surveillance and interception strategy for Operation
Relex was built on the assumption that intelligence could not be counted on to
provide detailed warning of SIEV departures and arrivals. Where intelligence on boats did play a role, it
was limited to ensuring that surveillance assets were operating within
pre-designated corridors of interception around Christmas Island and Ashmore
In Chapter 8, the Committee outlines the intelligence system
which surrounded Operation Relex and the role played by different government
agencies within it. The Committee provides a detailed account of the
intelligence on SIEV X which was received and handled by various agencies
during the critical six days, from 17 to 23 October 2001. Finally, it discusses
the surveillance that took place during the critical period of SIEV X’s
transit, foundering and the rescue of survivors, that is, 18 to 20 October. The
Committee examines the relevant surveillance area in general and then details
the surveillance patterns and results for the key period.
The Committee notes that during that key ‘time window’
maritime surveillance for Operation Relex continued as scheduled (except on 19
October when an extra flight occurred because of an unserviceable helicopter).
However, neither the ADF nor any other Australian agency took decisive action
directly in relation to SIEV X.
In Chapter 9, the Committee discusses the question of
whether such action was warranted by the information available to Australian
agencies at the time. Accordingly, the Committee examines the response of
Australian agencies to the intelligence on SIEV X and the reasons for that
response. It then makes an assessment about whether the Australian response to
SIEV X was adequate.
Against this backdrop, the Committee makes the following
findings in relation to the SIEV X episode.
The Committee finds that there
were several gaps in the chain of reporting of intelligence, but that even if
it had been functioning optimally, it is unlikely that the Australian
response to SIEV X would have been different. This is because the quality and
detail of the intelligence available to the authorities at the relevant times
was insufficient to have warranted the launching of a specific search and
rescue operation, especially since a comprehensive surveillance of the area was
already being undertaken. On the basis of the above, the Committee cannot find
grounds for believing that negligence or dereliction of duty was committed in
relation to SIEV X.
The Committee, nevertheless, finds it disturbing that no review of
the SIEV X episode was conducted by any agency in the aftermath of the tragedy.
No such review occurred until after the Committee’s inquiry had started and
public controversy developed over the Australian response to SIEV X.
While there were reasonable grounds to explain the Australian
response to SIEV X, the Committee finds it extraordinary that a major human
disaster could occur in the vicinity of a theatre of intensive Australian
operations, and remain undetected until three days after the event, without any
concern being raised within intelligence and decision making circles. The
Committee considers that it is particularly unusual that neither of the
interdepartmental oversight bodies, the Illegal Immigration Information Oversight
Committee and Operational Coordination Committee, took action to check whether
the event revealed systemic problems in the intelligence and operational
Committee also considers that more should be done to embed SOLAS obligations in
the planning, orders and directives of ADF operations, especially when these
are undertaken in a whole-of-government context. The Committee has noted
elsewhere in the report that international and legal obligations to protect
safety of lives at sea constrained Operation Relex’s mission of ‘detecting,
deterring and returning SIEVs’, and that the Committee is impressed at the
RAN’s serious commitment to this imperative. Nonetheless, the Committee has a
degree of concern about the extent to which this imperative was understood by
and figured in the mission tasking of other arms of the government architecture
involved in Operation Relex.
The Committee recommends that operational orders and mission tasking
statements for all ADF operations, including those involving whole of
government approaches, explicitly incorporate relevant international and
‘Pacific Solution’ – Chapters 10 and
The final two chapters of the report address the operation
and cost of detaining and processing unauthorised boat arrivals in Nauru and
Papua New Guinea, arrangements which have become known as the Pacific Solution.
The catalyst for the implementation by Australia of new ‘border protection’
arrangements, of which the Pacific Solution is an element, was the rescue in
August 2001 by the Norwegian freighter the
MV Tampa of 433 Afghan asylum
seekers en route from Indonesia to Australia, and their subsequent arrival in
waters adjacent to Christmas Island.
The Tampa incident
was represented as a metaphor for the threat posed by unauthorised boat
arrivals to Australia’s right to control its borders, notwithstanding
Australia’s protection obligations as a signatory to the Refugee Convention.
The Australian government responded by indicating that those rescued would not
be allowed to land in Australia. The impasse that followed led to the
development of the Pacific Solution arrangements, appealing to public sentiment
in favour of a more stringent approach to unauthorised arrivals in the period
leading up to the calling of a Federal election.
The solution to
the crisis over where the asylum seekers were to be taken was resolved through
the negotiation of agreements with Nauru and New Zealand that all of the people
rescued by the Tampa would be
processed in those countries rather than in Australia or Australian
territories. An agreement with Papua New Guinea in relation to the
establishment of a processing centre in Manus Province was also latter
announced. The arrangements were the outcome of a suite of negotiations in
which Australia also approached, with varying degrees of formality, East Timor,
Kiribati, Fiji, Palau, Tuvalu, Tonga and France (in
relation to French Polynesia).
The agreements reached in relation to the processing in
these countries of asylum seekers trying to reach Australia are outlined in
Chapter 10. In essence, the offer by New Zealand was a straightforward
arrangement under which New Zealand accepted 131 persons, mainly women and
children, from the Tampa, processed
their claims for refugee status, and agreed to accept for resettlement those
who were found to be refugees. New Zealand has subsequently resettled a further
194 people from the Nauru and Manus processing centres.
The agreements reached with Nauru and Papua New Guinea are of
a very different nature, and mark a substantial shift in Australia’s treatment
of asylum seekers. Nauru and Papua New Guinea are hosting processing centres
paid for and operated by Australia, and Nauru is receiving $26.5 million in
additional aid monies to do so. Moving asylum seekers to a safe third country
where refugee status processes are available is not, in the Committee’s view, a
formal breach of the obligations conferred by the Convention Relating to the
Status of Refugees, although it is arguably contrary to its humanitarian
The agreements reached with Nauru and PNG are on the basis
that no asylum seekers will be left behind in those countries. At their peak
capacity, 1515 asylum seekers were accommodated at the offshore processing
centres. The agreement with Papua New Guinea had a termination date of 21
October 2002. That with Nauru has no specific termination date but can be
terminated by either party at any time. Critics of the arrangement have
contended that Australia is using its economic power to export its problems to
its poorer neighbours, imposing significant pressures on already limited
natural resources and undermining regional aid objectives of good governance
and sustainable development.
Asylum seekers processed on Nauru and Manus do not have
access to the refugee status determination procedures applied on the Australian
mainland. Depending on where they are held and when they arrived, asylum
seekers’ claims may be processed by either the United Nations High Commissioner
for Refugees (UNHCR), or by Australian immigration officials applying processes
stated to be in accordance with those of the UNHCR. The only avenue of appeal
against an adverse finding is to a review of the decision by a higher level
official. The centres are managed by the International Organisation for
Migration under a service agreement with Australia, with Australian Protective
Services involved in security arrangements.
There is a lack of independent oversight of the processing
arrangements and the treatment of the asylum seekers, and efforts by
non-government groups to gain access to the centres have been largely
unsuccessful. The Committee was unable to reach a determination of the
conditions in the centres, given the paucity of direct evidence, although
measures appear to have been implemented to address deficiencies which
initially arose from the speed of implementation of the arrangements.
Chapter 11 examines the results so far of refugee status
determination processes, and resettlement and return outcomes. As of 16
September 2002, protection claims for 1,495 asylum seekers on Manus and Nauru
had received an initial decision. Of this number 520 people were approved as
meeting the criteria for refugee status, and 975 had been refused. Initial
decisions for Iraqi claimants were successful in 67% of cases, compared to just
over 7% for Afghan claimants. The low proportion of Afghan’s receiving positive
decisions reflects the changed circumstances in that country, with the result
that those that earlier may have had valid claims no longer met assessment
Review decisions so far have bought the total number of
people processed under Pacific Solution arrangements and found to be refugees
to 701, comprising 524 Iraqis, 133 Afghans, and 44 people of other
nationalities. Six hundred and seventy eight people have been found not to be
refugees, and 81 still await a review decision.
If asylum seekers are found to meet refugee criteria, they
have no presumption of entry to Australia, and international resettlement
places are sought for them. Nevertheless, despite efforts to secure
resettlement places overseas, the only countries to accept any significant
number of refugees from the offshore processing centres to date have been New
Zealand and Australia
As of 1 October 2002, 200 people processed on Nauru or Manus
had been allowed into Australia, most on three or five year temporary
protection visas. The majority were women or children with family in Australia.
Those on five year visas, available to people who had not landed on one of the
excised offshore places such as Christmas Island or Ashmore Island, will be
able to apply for a permanent protection visa at the end of that time if still
in need of protection. Those on three year visas will be eligible for subsequent
three year temporary protection visas if required, but cannot apply for
permanent protection. Five people have been granted temporary humanitarian stay
visas, which are not dependent on refugee status and are of a duration
determined by the Minister.
Resettlement places so far have fallen well short of the
number of people who have been found to be refugees, with no countries other
than New Zealand and Australia offering a substantial number of places. The
length of time taken in processing claims so far, and the continued
accommodation in the processing centres of several hundred people found to be
refugees but as yet without a resettlement place, is a matter of concern for
the Committee. Outcomes for those not determined to meet refugee criteria are
even more uncertain, with a small number having voluntarily returned to their
countries of origin, some with the assistance of a reintegration package. The
Committee is not convinced that the safe return to their countries of origin of
all of those found not to meet refugee convention criteria is necessarily
possible within a short timeframe.
Chapter 11 also examines the cost of the Pacific Solution
arrangements. Although substantial information is available on the costs
associated with the operation of the offshore processing centres in Nauru and
PNG, the Committee has not been able to collate an accurate picture of the full
cost of the Pacific Solution. This is because comprehensive costings for the
Defence Force component were not identifiable.
The establishment and operational costs of the Nauru and
Manus facilities lie with the Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA). The Department’s budget for these activities in
2001-02 was $114.5 million, although recent advice is that
the total cost for that financial year was $80 million. DIMIA’s 2002-03 budget
for the offshore reception and processing of asylum seekers in third countries
is $129.3 million. Forward year budgets are $99.3 million for 2003-04, $100.5
million for 2004-05, and $101.7 million for 2005-06.
DIMIA has also identified considerable savings associated
with on-shore processing centres as their functions are replaced by processing
in third countries and in Australia’s external territories. These savings, however,
cannot be considered solely in the context of the Pacific Solution, as
operational costs for processing in Australia’s external territories, as well
the $195 million capital cost of the new purpose built Christmas Island
facility, are also pertinent.
In addition to the cost of establishing and operating the
third country processing centres, and the $26.5 million inducement to Nauru,
other costs of the Pacific Solution policy include over $2.5 million for the
activities of the Department of Foreign Affairs and Trade in Nauru in 2001/02
In regard to the effectiveness of the Pacific Solution
policy, the Committee notes that the arrangements have been effective in
preventing on-shore processing of unauthorised boat arrivals. The arrangements ensure
that those amongst the arrivals who are found not to be refugees do not have
access to lengthy appeal processes, and those who are successful in their
claims have no presumed right to resettlement within Australia.
The number of boats carrying asylum seekers attempting to
reach Australia has also declined dramatically, although the effect of the
offshore processing arrangements and the new legislative regime in halting the
flow of illegal boat arrivals is difficult to isolate from the influence of other
factors such as enhanced surveillance, disruption activities, regional
anti-smuggling initiatives, the SIEV X disaster, global developments including
increased border security in the aftermath of September 11, and the changed
circumstances in Afghanistan.
Should the reduction in asylum seeker numbers continue, the
new purpose built processing facility on Christmas Island should provide a
sustainable alternative to third country processing.
In respect of the agreements
between the Australian Government and the Governments of Nauru and Papua New
Guinea regarding the detention within those countries of persons intercepted
while travelling to Australia, known as the ‘Pacific Solution’, the Committee
finds that the arrangements reached are not a formal breach of Australia’s
obligations under the 1951 Convention Relating to the Status of Refugees.
However the Committee finds that the level of consultation during the
development of the arrangements, and the level of transparency and independent
oversight in their implementation, has been inadequate.
In respect to the arrangement with Nauru, the Committee finds that
the use of developmental aid to ensure the continued cooperation of the
Government of Nauru distorts Australia’s aid priorities in the region, and does
not promote good governance in Nauru.
The Committee recommends
that people within the Papua New Guinea and Nauru processing centres who have
been determined to be refugees should be offered durable and effective
protection, in accordance with Australia’s human rights values, as soon as
practicable. Should resettlement places not be available in other countries,
Australia should accept its protection responsibilities and offer temporary
protection within Australia.
The Committee recommends
that the Department of Immigration and Multicultural and Indigenous Affairs
implement arrangements which facilitate access to the offshore processing
centres by independent observers.
The Committee recommends
that the Department of Immigration and Multicultural and Indigenous Affairs
implement interim protection arrangements for those asylum seekers in the
offshore processing centres who have not been determined to be refugees on
convention grounds, but nevertheless cannot safely return to their homelands at