Chapter 3 - The ‘Children Overboard’
Incident: Events and Initial Report
‘[E]ven without the subsequent furore and the repeated
investigations, the rescue of 223 unauthorised arrivals by HMAS Adelaide would
always have stayed in my immediate recall as a most memorable incident’.
In the early afternoon of 6 October 2001, in response to ‘shore based intelligence’, HMAS Adelaide and a Royal Australian Airforce P3-C Orion aircraft intercepted a
wooden hulled vessel with 50 people visible on its deck. The 20 to 25 metre
vessel was at this time about 100 nautical miles north of Christmas Island,
well outside Australia’s area of jurisdiction, but was heading south at about
eight knots. ‘There was every expectation’, according to the Adelaide’s Commander Norman Banks, ‘that this was a SIEV bound for Christmas Island’.
By late afternoon on 10 October 2001, the SIEV’s 223 passengers and crew had been transferred from HMAS Adelaide to the custody of the Australian Federal Police on Christmas Island.
The events and the reports of
the events of the intervening 4 days formed the basis for what has become known
as the ‘children overboard’ incident.
In this chapter, 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 held 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.
The aim of this chapter is to
provide a factual foundation on the basis of which analysis can be made in
subsequent chapters of matters arising from the original report and the
attempts to correct it.
HMAS Adelaide and SIEV 4
In accordance with the overall
aim of Operation Relex, HMAS Adelaide’s task following its initial interception of SIEV 4 was to deter the
SIEV and its passengers from entering Australian waters. If the vessel did gain
entry to Australia’s contiguous zone, a boarding party was to detain the SIEV, sail it
to the outer edge of the zone and release it if it were safe to do so. If the
vessel re-entered the contiguous zone, then a boarding party was to detain the
SIEV, its passengers and crew, pending further direction from government. ‘At
no stage’, however, ‘were unauthorised arrivals to have access to the
Australian migration zone’.
Attempts to deter entry
The first phase of the Adelaide’s engagement with SIEV 4 accordingly involved the attempt to persuade
the crew and passengers aboard the SIEV to turn their vessel back to Indonesia.
To this end, while the vessel
was still in international waters, the Adelaide commenced delivering warning messages from the Department of
Immigration and Multicultural Affairs to the SIEV. The messages advised the
master and crew of the vessel that
‘it is an offence under the Australian Migration Act to bring to Australia
non-citizens who do not have authority to come to Australia’.
They advised that penalties, including lengthy gaol terms and fines of up to
$220,000, were imposed on those found guilty of such offences.
Some of these warning messages
were conveyed by the Adelaide’s
long-range RHIB, while others were conveyed by loud hailer from the Adelaide itself. Between 6.13pm on 6 October and 4.32am on 7
October, five DIMA warning notices were issued, some several times, in both
written and spoken form, and in English, Bahasa and Arabic.
Those on board SIEV 4 ignored
these attempts to warn them off. They refused to identify the master and crew,
refused to accept delivery of the written warnings and did not respond to the
verbal warnings. They displayed,
in CO (Commander) Adelaide’s [Commander
Banks’s] words, ‘visible and oral aggression’ and continued to make way
steadily towards Christmas Island.
Commander Banks told the Committee that, in view of this initial
non-compliance, he assessed that ‘any subsequent boarding would be problematic and
that a non-compliant action, potentially employing the graduated use of force,
was likely to be necessary’.
By 2.30am on 7 October, SIEV 4
had entered Australia’s contiguous zone
and at 3.35am, after several calls for the vessel to ‘heave-to’ had been
ignored, Brigadier Michael Silverstone, CJTF 639, directed Commander Banks ‘to
conduct a positive and assertive boarding’.
At 3.59am, with approval from
Brigadier Silverstone, CO Adelaide
commenced firing warning shots ahead of the vessel. Commander Banks said:
The SIEV was, at this stage, well inside the Australian
contiguous zone, approximately two to three miles from the Australian
territorial waters of Christmas Island, and proceeding directly towards
Christmas Island at about seven knots. I need to emphasise that only aimed
shots were fired directly into the water, [in] an area 50 to 75 feet ahead of
the vessel. A searchlight was used to illuminate both the weapon firer and the
area in the water ahead of the vessel where the rounds were to land. This ad
hoc process was introduced by me to clearly show my intent.
Warnings by loudspeaker
continued, said Commander Banks, ‘throughout’, but the vessel still did not
heave-to. At 4.30am, the Adelaide
manouevred ‘more aggressively close to the vessel to slow it down’, and this
‘distraction ... allowed an assault type non-compliant boarding, using the RHIB,
to be effected whilst the vessel was still under way’.
By 4.45am on 7 October 2001,
the Adelaide’s boarding party had
taken control of SIEV 4 and its course was altered towards Indonesia.
According to signals from the Adelaide around the time of the boarding
party’s insertion, its control of the situation on SIEV 4 was tenuous. The
signals reported that the SIEV’s passengers were angry and disappointed at
being turned north, and that they
were ‘irate, aggressive and to some extent hysterical’.
CO Adelaide also reported via signal that a number of the unauthorised
arrivals were threatening to commit suicide, gesturing with wooden sticks and beginning
to sabotage their vessel. It was
at this stage that some began to jump overboard.
Commander Banks told the
Committee that the first ‘man overboard’ took place after first light, at
5.06am, and that subsequent ‘man overboards’ took place between 5.43am and
5.56am. He continued:
Fourteen unauthorised arrivals jumped or were thrown overboard.
I use the words ‘thrown overboard’ here advisedly. Those were the words that
were used in my signal and reported repeatedly. They jumped or were thrown
overboard in a series of voluntary actions by the unauthorised arrivals. All
were recovered by the Adelaide’s
RHIBs and returned to the SIEV.
The question of whether or not
a child or children were thrown overboard from SIEV 4 amounts to the question
of whether or not a child or children were among this group of fourteen
unauthorised arrivals who were recovered from the water by one of the Adelaide’s RHIBs. This matter is
discussed in detail in the next section of the chapter.
At 6.01am, a second boarding
party was inserted onto the SIEV in order, remarked Commander Banks, ‘to better
restore control and, hopefully, to prevent a mass exodus to force a safety of
life at sea situation, a consideration which was very much on my mind’.
The Adelaide’s boarding party and medical teams provided medical
assistance to the SIEV’s passengers and the threat of mass exodus did not
eventuate. Nevertheless, the situation remained tense and difficult, with
‘force used occasionally to maintain control’. Commander Banks described it in the
Efforts to provide assistance, such as water, were not welcomed.
Indeed, on occasions, the water that we provided was thrown overboard by the
unauthorised arrivals on receipt ... With 200-plus irate personnel on board and a
boarding team of 18, all operating in a small and very unfamiliar vessel, it
was not a surprise to me that the vessel was continually being sabotaged. The
steering and the engines were disabled at various times. Vandalism and arson
had been conducted and continued.
‘However’, he continued:
ground was made northward, and the boarding party were extracted
from the SIEV at 1029G [10.29am], as the SIEV exited out of Australian
jurisdiction 24 miles from Christmas Island. The SIEV and the SUNCs were
directed to Indonesia. They were shown a chart, and I also provided a hand-held
compass to assist them with that. They had earlier thrown their own compass
SIEV 4 began heading north at
slow speed. Commander Banks
Weather deteriorating, winds freshening, sea and swell make for
an uncomfortable ride north.
Tow, sinking and rescue
Despite having successfully
achieved his mission’s aim in preventing the SIEV from gaining access to
Christmas Island, Commander Banks said that he was not comfortable that ‘a
win-win situation’ had been accomplished.
He was concerned about the deteriorating afternoon weather conditions, the
seaworthiness of the vessel and in particular, the condition of the steering
which had been disabled by the SUNCs and repaired in a makeshift fashion by the
Adelaide. He also feared that the
unauthorised arrivals might again seek to generate a safety of life at sea
For these reasons, he
entertained the ‘likely appreciation’ that ‘the boat would eventually declare
itself in distress’ and accordingly decided to remain ‘out of obvious visual
range but took station a prudent five nautical miles clear of the SIEV, such
that I maintained radar and Electro-Optical Tracking System (EOTS)
At 12.19pm on 7 October 2001,
the SIEV was observed ‘dead in [the] water’. At 1.35pm it appeared to be flying
a white flag, and at 1.59pm, with the Adelaide
drawing near, other distress signals were displayed. The boarding party and security team
were despatched to the SIEV to investigate and found that there was water in
the fuel, that the starter motor was damaged and the diesel rocker cover
The boarding party assessed
that the mechanical equipment had been deliberately destroyed ‘in [a] bid to be
taken to Australia and is ... most likely unrepairable’. Accordingly, the SIEV was deemed to
be a vessel in distress and CO Adelaide,
in consultation with Brigadier Silverstone, determined to tow it to Christmas
Island to await further instructions from government.
Commander Banks told the
Committee that this second boarding party insertion and tow proceeded without
incident for just over 24 hours until the afternoon of Monday, 8 October. In contrast to the earlier
insertion, he noted that:
Throughout, the unauthorised arrivals were almost delighted to
be in our care, and the mood and bonhomie had decidedly changed. Disturbances
and aggression were no longer evident.
However, some difficulties did
arise during night, when the bilge levels in SIEV 4 began to rise. The SIEV’s generator had failed and
could no longer power the bilge pumps.
In the hours between 2.04am and 4.03pm on 8 October 2001, CO Adelaide put in place a number of
different strategies designed to deal with the bilge levels on the SIEV. These
included providing the SIEV with hand and peri-jet pumps, and sending one of
the Adelaide’s RHIBs to Christmas
Island to pick up four stroke fuel to power the SIEV’s own pumps.
By 4.03pm, the bilge levels had
reduced to 0.5m from a high of 1.2m but the SUNCs were ‘agitated’ by water
coming in over the freeboard and boarding party officers continued to be
concerned. At 4.30pm, the Adelaide commenced serving the evening
meal on the SIEV, but just before 5.00pm and ‘largely without warning’ it began
to sink rapidly. Commander Banks informed the Committee that it was then ‘in a
position 16 nautical miles north-west of Christmas Island’.
At 5.08pm, passengers from the
SIEV began entering the water as its bow went under, and the first of the Adelaide’s life rafts was launched. Commander Banks described the
situation to the Committee as a ‘controlled abandon ship’ directed by the
boarding party embarked on SIEV 4.
In all, the Adelaide launched six
25-man life rafts which, together with the two 7.2 metre RHIBs, rescued all the
unauthorised arrivals from the water.
The Committee notes that during
the afternoon just prior to the sinking and while various efforts were underway
to reduce the level of water on SIEV 4, the boarding officer had requested of
Commander Banks that the women and children be moved off the vessel. That
request was made, according to the Ops Room Narrative, at 2.51pm. It was refused.
Commander Banks was asked why
he had refused the request to disembark the women and children from what was
clearly only a ‘marginally seaworthy’ vessel onto the Adelaide. He replied:
Because if I disembarked some to the Adelaide I would have failed in my mission aim and I might as well
have embarked all of them. In my judgment we still had a boat that was still
marginally seaworthy and I still had control of the situation.
Commander Banks emphasised that
his ‘instructions were clear that there was to be no loss of life or injury’. Nevertheless, it was also clear that
he was not to ‘give up’ on his mission aim too easily. That aim was, in the
first instance, to deter and deny access to Australia’s migration zone.
Commander Banks said that ‘[i]f forced to abandon that aspect of the mission, I
was to contain the situation until a decision could be made as to where the
SUNCs would be transferred’.
As Commander Banks noted, it
was clear by this stage that he had been unable to achieve the first aim of his
mission since the SIEV’s engine had seized up and the vessel was having to be
towed by the Adelaide. But to have
embarked its passengers onto the Adelaide
immediately would have, in his view, made it impossible ‘to get them off ...
without the use of force’.
In other words, Commander Banks
said that as long as the SUNCs were on board their own vessel, he had greater
control over the situation and the government retained more options in relation
to what was to be done with the asylum seekers. He put it thus:
Clearly, if the aim was always to deter their arrival in
Australia, embarking them on the Adelaide
was another step towards their achieving that goal and our being unable to
reverse the process.
For example, he noted:
it could have been that I was directed to tow them back to
Indonesia and transfer control to Indonesia. Having embarked them in Adelaide, that would have been an
The Committee notes that the consequence of
the fact that the asylum seekers were not embarked on HMAS Adelaide as soon as any concerns about the seaworthiness of the
vessel were expressed was that they all, women and children included, were
forced to enter the water when the vessel sank.
The Committee accepts
completely that Commander Banks made the best professional judgement that he
could in the circumstances and that, as soon as the vessel began to founder in
earnest, he moved decisively and effectively to rescue the passengers of SIEV
4. The Committee is concerned, not with the judgements or actions of Commander
Banks, but with the brinkmanship implicit in the policy that he was charged
It is clear that the policy ‘to
deter and deny’ makes the requirement to ensure safety of life at sea
paramount. At the same time, however, it requires that naval commanders do all
in their power to avoid having to embark unauthorised boat arrivals on RAN
vessels. In practice, there is
significant tension between these two requirements just because, in practice,
the line between a ‘marginally seaworthy’ vessel and a sinking fishing boat can
be swiftly and unexpectedly crossed. When it is, the lives of both asylum
seekers and naval personnel are placed suddenly in peril.
The Committee is gravely
concerned about two aspects of the tension between the requirement to ensure
safety of life at sea and the requirement to avoid embarking unauthorised
arrivals onto RAN vessels until the last possible moment. First, the Committee
is concerned at the risk to the lives and well-being of both naval personnel
and the passengers on board SIEVs.
Second, the Committee is
concerned about what may be described as the ‘moral risk’ in which the
Commanding Officers are placed by the policy. What, for example, would
Commander Banks’s feelings have been had any of the passengers on board SIEV 4
drowned as a consequence of the delay in embarking them on the Adelaide? He told the Committee that it
was: ‘To my personal relief, [that] the unauthorised arrivals’ leaders
confirmed there was no loss of life and, importantly, that no-one was missing’. In a signal sent shortly after the
rescue, CO Adelaide indicated the
care that he had taken to assure himself that indeed everyone had been rescued:
All SUNCs onboard ADE [Adelaide]
are content that their loved ones are with them and it appears repeat appears
that no one is missing. An exhaustive search of area has been conducted by
RHIBs and only flotsam and jetsom remains.
The Committee is concerned at
the personal consequences that may be
suffered by commanders such as Commander Banks if these situations ‘go wrong’,
and at the government’s apparent obliviousness to the risk it is asking these
individuals to run.
In the event, Commander Banks
spoke of the successful rescue of the SIEV’s passengers and crew with justified
pride, telling the Committee that:
The performance of the ship’s company of Adelaide to make this rescue happen was unparalleled, and can best
be described by the simple superlative ‘superb’ ... A number of the ship’s
company acted selflessly and several - seven, to be exact - entered the water
to assist and, on occasion, help rescue the unauthorised arrivals. The
photographs of A.B. Whittle and Leading Seaman Cook Barker are indicative of
that effort, but many more of team Adelaide
contributed than just those seen in the two much-publicised images.
By 7.08pm on 8 October 2001,
all the unauthorised arrivals had been embarked on the HMAS Adelaide and their number confirmed at
223. The leaders of the group
confirmed that there was no loss of life and that no-one was missing. By 7.36pm, the two RHIBs had also
been recovered and all the Adelaide’s
personnel accounted for.
Following the rescue, Brigadier
Silverstone directed that the Adelaide
was to remain at sea overnight on 8 October and to prepare to transfer the
unauthorised arrivals to the authorities on Christmas Island at 9.00am the next
day. Later, these instructions changed and eventually the Adelaide ‘secured to the buoy at Flying Fish Cove’ at about 2.00pm
on Wednesday, 10 October, disembarking the SUNCs into the custody of the
Australian Federal Police by 5.00pm that afternoon.
The Adelaide then made up its depleted life raft capacity and prepared
to return to Fleet Base West for its next tasking.
Commander Banks was emphatic in
his evidence before the Committee that ‘no children were thrown overboard [from
SIEV 4], no children were put in the water, no children were recovered from the
Since, however, a report of
children thrown overboard did arise
from the events just outlined, the Committee questioned Commander Banks
extensively about the nature and provenance of the Adelaide’s various records and reports of the ‘man overboard’
In addition to the testimony of
relevant individuals before the Committee, there are six ‘primary’ sources
which pertain to the original report of ‘children overboard’. They are:
recollections and notes of a phone call between
Commander Banks on HMAS Adelaide and
Brigadier Silverstone in Darwin, early in the morning on 7 October 2001;
situation reports eight and nine from HMAS Adelaide;
logs of the HMAS Adelaide;
Commander Banks’s summary chronology of events
of 10 October 2001;
witness statements collected from the crew of
HMAS Adelaide on 10 October 2001; and
Commander Banks’s statement of 11 October 2001.
In what follows, the Committee
will analyse this evidence in some detail. The aim of the discussion is to give
a comprehensive account of how a report that children were thrown overboard
came to be made and considered credible.
It is uncontroversial that the
original report that a child had been thrown overboard was conveyed by
Brigadier Silverstone to Air Vice Marshal Alan Titheridge, Head, Strategic
Command Division and to Rear Admiral Geoffrey Smith, Maritime Commander, on the
morning of 7 October 2001.
Brigadier Silverstone made this report, believing himself to be passing on
information that he had just been told in a telephone conversation with
There is, however, disagreement
between Commander Banks and Brigadier Silverstone about a number of aspects of
their telephone conversation, including whether Commander Banks ever said that
a child had been thrown overboard.
According to Brigadier
Silverstone, he spoke with Commander Banks at 7.20am Darwin (‘India-Kilo’) time
on 7 October 2001. The time difference between Darwin and the Adelaide was then two and half hours,
meaning that, on Brigadier Silverstone’s account, the time on the Adelaide (‘Golf’ time) would have been
4.50am. The conversation lasted for less than five minutes and conveyed to him the following
the vessel had disabled its steering, and was
dead in the water 7-8 nautical miles south;
there was a threat of mass exodus;
there were men in the water and a child thrown
over the side, 5,6 or 7 years of age;
some had discarded their life jackets, but to
the best of CO Adelaide’s knowledge
everyone had been recovered.
Brigadier Silverstone told the
Committee that both his contemporaneous notes and his recollection of the
conversation confirm this account.
The contention between
Brigadier Silverstone and Commander Banks with regard to their recollections of
this conversation is focused on two matters. They are, first, the time at which
the conversation took place and, second, whether Commander Banks said that a
child had been thrown over the side.
Time of telephone conversation
In relation to the first issue,
the time of 0720 (7.20am) is noted at the top of Brigadier Silverstone’s diary
notes of the conversation. However, the Brigadier informed the Committee that
he had only inserted that notation of the time three to four days after the
conversation, ‘when it became apparent that this was the subject of some
interest’. Questioned as to how he
could be confident that that was the correct time, Brigadier Silverstone said:
I had a requirement to pass the latest information to Air Vice
Marshal Titheridge by 0730 Darwin time that morning and I had previously
arranged with CO Adelaide to talk to
him at 0720 in order to get a report on what was happening.
Senator Brandis - And
you met that deadline to speak to Air Vice Marshal Titheridge by 0730am?
- Indeed. My recollection is of sitting there at about 0728. I called him at
that time and then called Rear Admiral Smith directly after that.
To set against this confidence,
however, is the problem that if the phone call took place at that time, then
the events which formed its content do not seem, according to the Adelaide’s boarding logs, to have yet
Commander Banks testified that,
to the best of his recollection, the conversation occurred at about 6.00am his
time, and thus at 8.30am in Darwin time.
The discrepancies between the
two sets of recollections and reconstructions of the time of the phone call
were extensively canvassed by the Committee in its hearings. The main features of the evidence
which support each version of events are outlined below.
The following considerations
speak in favour of Commander Banks’s account of the time:
boarding log contains no entries at around 4.50am which refer to persons in the
water or recovery of SUNCs from the water, whereas the entries at around 6.00am
refer to both those things;
at around 6.00am, according to a boarding log
entry and subsequent witness statements from the crew, a child was being held
over the side of SIEV 4 and being threatened with being thrown overboard;
Commander Banks testified that he only recalled
one telephone call with Brigadier Silverstone which involved reference to a
child, and that this call occurred at the time that the child was being held
over the side;
a statement made on 10 October 2001 by the Adelaide’s Principal Warfare Officer,
Lieutenant Commander Daniel Hynes, reports on the incident of a child held over
the side a few minutes prior to 6.00am. It continues: ‘The adult then brought
the child inboard after a few minutes when it was evident that the SUNCs that
were jumping in the water were being returned. At this time I moved into the
bridge where the Commanding Officer was on the phone to the Brigadier, where I
heard him state quite clearly that the SUNCs were throwing themselves overboard
and threatening to throw a child in the water in an attempt to cause a SOLAS
[safety of life at sea] situation’.
Commander Banks’s statement made on 11 October
2001 concerning his telephone conversation with Brigadier Silverstone uses the
present tense in relation to his report of a child being held over the side.
This gives support to Commander Banks’s recollection that the phone call
happened as he was witnessing the
incident. The statement reads, in part, ‘I believe I told him [Silverstone]
that they were threatening to throw children overboard and I had witnessed such
an event. I believe the CJTF asked me to confirm that children were involved
and I believe I advised him that I could
see a young child being held over the side. I believe he asked me some
questions about this and could I definitely confirm this. I am positive I
stated that quote I had seen it myself unquote’. At the end of the statement,
Commander Banks summarised: ‘I advised CJTF 639 ... that I could see a man threatening to put a child over the side’
Finally, the Committee notes
that at 4.50am, the sun had not yet risen at the Adelaide’s position. Commander Banks told the Committee that the
boarding party was inserted in darkness (between 4.39am and 4.42am), and Brigadier Silverstone noted
that, at 4.50am, first light would have been ‘10 or 15 minutes away’. Sunrise did not take place until
5.39am. This fact seems difficult
to reconcile with the claim that Commander Banks or his crew would have been
able to see sufficiently well to specify the age of any child, at 4.50am, as 5,
6 or 7 years old.
The following considerations,
however, speak in favour of Brigadier Silverstone’s account of the time:
Brigadier Silverstone was instructed by Rear
Admiral Smith, on the evening of Saturday 6 October, to contact Air Vice
Marshal Titheridge at 7.30am (Darwin time) with the latest update on SIEV 4.
The Brigadier said: ‘The only reason I had that conversation with CO Adelaide on that morning was that I was
required to talk to Air Vice Marshal Titheridge at 0730’;
it is Brigadier Silverstone’s clear recollection
that the telephone conversation with Commander Banks was prearranged to occur
at 7.20am, and that he called Air Vice Marshal Titheridge following that
conversation at 7.28am;
telephone logs indicate that the Adelaide made a telephone call at 0721
(Darwin time) to the NORCOM watchkeeper, which could have been the call to
Brigadier Silverstone; and
Rear Admiral Smith testified that he received a
call from Brigadier Silverstone at about 8.00am eastern standard time (7.30am,
Darwin time). According to Rear Admiral Smith, Brigadier Silverstone advised
him that, as instructed, he had spoken to Commander Banks and passed on the
latest information about SIEV 4 to Air Vice Marshal Titheridge. Following this
conversation, Rear Admiral Smith said: ‘I rang Admiral Ritchie, according to my
mobile telephone record, at 8.02am that morning to advise him of this
Brigadier Silverstone was asked
if he could explain why, assuming his note and recollections of the timing of the
telephone call were correct, there was no record of the events spoken of by
Commander Banks in the Adelaide’s
boarding logs at the relevant time. Brigadier Silverstone said:
from my point of view it does not matter what it says in the
ship’s log in that the ship’s log reflects a whole collection of material that
is sifted through. Reports are made, reports are not made; things are included
in it. All I know is that we had that conversation at about 0720 or 0721 and he
reported those things to me. It was at the time that the ship’s boarding party
had just gone on board and there was a great deal of confusion there. My sense
of that is that we were having this conversation at that time and there may
have been a range of contrary reporting occurring. I was not there; all I know
is what he told me.
Shortly afterwards, he
elaborated on this point:
The only explanation I can offer, not having been there,
involves the confusion of the boarding party boarding ... I would suggest that in
the darkness there is a range of confusion and that it is at that time that I
ring, that it is when they are still trying to assert control on this darkened
vessel that I get this report. That is the only possible explanation I can
give, because I was not there.
Finally, the Committee sought
advice from Air Vice Marshal Titheridge, asking whether he was able to
corroborate Brigadier Silverstone’s account of the time at which their
conversation had occurred.
The Air Vice Marshal had no
independent recollection or record of the timing of that particular phone call,
but he was able to provide the Committee with his mobile telephone record for
the relevant period.
Other evidence, to be discussed
in detail later, shows that Air Vice Marshal Titheridge telephoned Ms Jane
Halton, then Chair of the People Smuggling Taskforce in the Department of the
Prime Minister and Cabinet, with the information that a child or children had
been thrown into the water from SIEV 4. Air Vice Marshal Titheridge’s telephone
records indicate that he called Ms Halton at 8.05am (AEST), and again at 9.17am
and 9.21am on Sunday 7 October 2001.
If the relevant call was made
at 8.05am, that would tend to corroborate Brigadier Silverstone’s testimony
that he called Air Vice Marshal Titheridge at about 7.30am (Darwin time) and
hence at about 8.00am (AEST). However, if the relevant call was made at 9.17am,
that would tend to corroborate Commander Banks’s testimony that the information
was passed to Brigadier Silverstone at 8.30am (Darwin time) and hence at about
Air Vice Marshal Titheridge’s
view, inferred from the pattern of calls on his telephone record, was that the
relevant call from Brigadier Silverstone had occurred at about 9.00am (AEST).
He emphasised, however, that he had reached this view only by way of inference
from the pattern of the calls he made and that ‘I could be wrong’.
Air Vice Marshal Titheridge’s
reasoning, however, is supported by Ms Halton’s evidence. In relation to advice
to her that children had been thrown overboard, she told the Committee that:
I am ... very clear that the first I knew of the matter was in a
telephone call from Air Vice Marshal Titheridge. Ms Edwards records this in her
notes as being at 9.15am, and I understand that Air Vice Marshal Titheridge’s
telephone records show a call to me at 9.17[am]... My handwritten records show
that the advice to me from Air Vice Marshal Titheridge was that the potential
unauthorised arrivals were: ‘... throwing kids o/b and trying to disable
Mention of child thrown
The second area of contention
between Commander Banks and Brigadier Silverstone in relation to their
telephone call on 7 October 2001 concerns whether the Commander actually said
that a child had been thrown into the water from SIEV 4.
Brigadier Silverstone told the
Committee that both his clear recollection and his contemporaneous notes of
their conversation testify to the fact that Commander Banks advised him that ‘a
child was thrown over the side’.
Commander Banks, by contrast,
was equivocal about the accuracy of his recollection and he took no
contemporaneous notes. Nevertheless, he said that he did not think that he had
told Brigadier Silverstone that a child had been thrown over the side. He said:
My recollection of that conversation is not very clear. I do
recollect parts of the conversation. I do recollect, in the telephone
conversation at about six o’clock - and the times are a little in dispute there
- being asked about a child and describing that I could see with my own eyes a
man holding a child over the side. I recollect being asked about that and
saying, ‘I can see it with my own eyes’. I do not recollect saying that a child
had been thrown overboard or that a child had been recovered from the water ...
Earlier conversations, to my recollection, did not make reference to children
Commander Banks did concede in
evidence to the Committee that, during the man overboard events of the morning
of 7 October 2001, there were reports being made by members of the Adelaide’s crew that children were among
those involved. These reports were reflected in Commander Banks’s statement of
11 October 2001. Paragraph 11 of the statement reads in part:
UBAs [unauthorised boat arrivals] were also entering the water
from the vessel’s stbd [starboard] side out of my view but I could later see
their heads bobbing in the water. I received frequent radio reports about these
manoverboards and quote possibly unquote heard that children were also in the
Paragraph 14 of the same
Throughout, my boarding party and the other witnesses on the
bridge wings were advising that they could see more jumpers, some men, some
boys and some children. Reports of the number who entered the water varied
Given that reports such as
these were being made in the confusion of events, Commander Banks conceded that
it was possible, although he had no recollection of doing so, that he had told
Brigadier Silverstone at the time that children were in the water. Thus,
Commander Banks conceded that it was possible that Brigadier Silverstone’s
recollection of the telephone conversation was correct.
The relative situation of each
party to the conversation also seems to speak in favour of an assessment that
Brigadier Silverstone would be likely to have the clearer recollection of it.
Vice Admiral David Shackleton, Chief of Navy, said in evidence to the Foreign
Affairs, Defence and Trade Legislation Committee that he had said as much to
Commander Banks when they spoke of the matter on 8 November 2001. Vice Admiral
Shackleton recounted that discussion in the following terms:
He [Commander Banks] was ambivalent about whether he had
actually said to Brigadier Silverstone that a child had been thrown in the
water. I discussed this with him a bit. When we talked it through I said,
‘Well, frankly, I would think that you probably said at the time what the
brigadier wrote down in his notes, because the brigadier was in the comfort of
an office that wasn’t rolling around, and people shouting and asking him to do
all kinds of other things’.
However, despite acknowledging
his imperfect recollection of the conversation, Commander Banks was steadfast
in his unwillingness simply to accept Brigadier Silverstone’s account of it. His reasons were threefold.
First, as noted earlier, his
recollection of the content of the relevant conversation was supported by the
statement made by the Adelaide’s
Principal Warfare Officer on 10 October 2001. Lieutenant Commander Daniel
Hynes’s statement reads:
At this time I moved into the bridge where the Commanding
Officer was on the phone to the Brigadier, where I heard him state quite
clearly that the SUNCs were throwing themselves overboard and threatening to
throw a child in the water in an attempt to cause a SOLAS [safety of life at
Commander Banks told the
One of the reasons I am so adamant - perhaps too strong a word -
is that in my sworn statement, which I submitted on 11 October, I relied on the
principal warfare officer, my operations officer, who was standing adjacent to
me. His recollection of that conversation was that I did not say ‘throwing
Second, Commander Banks noted
that the situation reports that he sent concerning these events made no
reference to a child thrown overboard. Speaking of the relationship between the
telephone call and these reports, Commander Banks said:
What I can say is that shortly thereafter, and within minutes, I
was transcribing a sit rep - a situation report - in the continuance of those
sit reps throughout that event, and I made no reference to it [child overboard]
in that sit rep. Therefore, I am more comfortable in my mind, with the passage
of time, that obviously I did not say that, because I did not report it in any
Finally, by the time he gave
evidence to the Committee, Commander Banks seemed prepared to accord only
limited authority to the notes of the conversation taken by Brigadier
Commander Banks advised the
Committee that he only became aware of the discrepancy between his and
Brigadier Silverstone’s recollection of their conversation on 9 or 10 October
2001. By this time the report that
‘children had been thrown overboard’ had become a matter of public controversy,
and the Maritime Commander, Rear Admiral Smith, was seeking clarification and
written evidence concerning the initial report.
When he first became aware of
the discrepancy and its significance, Commander Banks said, he was confused and
in a ‘precarious’ state of mind.
He told the Committee:
I had believed that I had reported the events clearly. On 9 and
10 October, I was made aware that the information was not so clear. I had
discussions with Commander NORCOM, CJTF 639, on the phone ... where he spoke to
me and said - and I am paraphrasing here - ‘There was confusion, Norm. I
thought you said this; in fact, Norm, I recollect that you said this, and I
have taken notes.
I was in a dilemma here. I had my immediate operational
commander telling me I said something that I do not clearly recollect saying
but cannot categorically deny because I knew that, at the time these events
were happening, all of these things were to varying degrees true and were being
reported by different people at various instances in time as being true to
their recollection of their viewing.
However, Commander Banks also
said that when Brigadier Silverstone first told him that he had a record of
what he [Banks] had said, he ‘read out what I thought were sentences’. Banks
noted: ‘I was surprised later on to find out that he actually had very short
notes’. It was it the context of
that discovery, that Commander Banks spoke of the support provided for his
version of the conversation by the Principal Warfare Officer’s statement and
the silence in the relevant situation reports.
The telephone conversation on 7
October 2001 during which Brigadier Silverstone either heard or thought he
heard Commander Banks tell him that a child had been thrown over the side of
SIEV 4 was one of about nine conversations between the two officers that day. Many of these had taken place in the
very early hours of the morning, in the flurry of events surrounding the
boarding of the vessel.
The Committee itself does not
consider that it is possible to arrive at a definite conclusion about what
exactly was said and not said at the time. It has, however, complete confidence
in the integrity of both Commander Banks and Brigadier Silverstone and complete
confidence that at all times each has said only what he believed to be the
Brigadier Silverstone expressed
the view in an email to Rear Admiral Smith on 11 October 2001 that, ‘whether a
child was disposed over the side or not is immaterial’. Questioned on the sense in which it
was ‘immaterial’, the Brigadier told the Committee:
In the sense that we had a report that ultimately proved
incorrect, that it was a tactical report which was frangible information at the
time, and that, as soon as we became aware that it may not be correct, we
sought to fix it. In the kaleidoscope of events of the type that were occurring
that morning sometimes these reports are wrong, whether they are written or
It is not unimportant to
understand how a report, subsequently deemed to be incorrect, came to be made
in the first place. The Committee concurs with Brigadier Silverstone, however,
in thinking that by far the more significant issue concerns how an early and
frangible report came to be so publicly disseminated and how attempts to
correct it were met. It is to these matters that the Committee now turns.