Chapter 5 - The Attempt to Correct the
Record: Advice from Defence
[T]o be frank, whether this incident -
the child, that is - occurred or not in my view is irrelevant. There was a
series of activities happening. From the naval perspective, what was important
was that that information was reported as having occurred and was relayed to
government and several days later that information was corrected - which would
be our normal way - and that information was relayed. What I do not have
visibility of, and it is not my place to comment on, is how that information
was handled at the end of the chain.
The Committee accepts that
Defence did, in the first instance, mistakenly advise that children had been
thrown overboard from SIEV 4. That report was conveyed to the People Smuggling
Taskforce, and thence passed on to and released by Minister Ruddock.
In the matter of the
misrepresentation of the photographs, the Committee argued in the previous
chapter that the Minister for Defence’s office released the pictures in haste,
and after significant doubts had been raised about their status as evidence for
the ‘children overboard’ event.
The key question for the
Committee is how both mistakes were able to stand uncorrected throughout the
period of an election campaign, during which ‘border protection’ was a
significant and sensitive issue.
In addressing this question,
the Committee will need to evaluate three matters. They are:
the adequacy of the advice from Defence about
the extent to which those who received clear
advice deliberately and consciously ignored it; and
the extent to which those who received less
definite advice were culpable for their failure to seek a clear understanding
of the facts.
Accordingly, in this chapter,
the Committee outlines the nature of the advice on these matters which came
from Defence in the period from 10 October to 8 November 2001.
In the following chapter, the
Committee turns to the question of how that advice was received by the Minister
for Defence and his office. Finally, the Committee makes its assessment of the
adequacy of the advice from Defence and of the factors which contributed to the
failure to correct the record.
Correcting the Record: Advice
to the Minister and his Office
From 10 October 2001 to 8 November 2001, Defence
personnel gave advice relating to the veracity of the report that children had
been thrown overboard on five separate occasions to Minister Reith or his office. In addition, Vice Admiral Shackleton commented on the matter to the media on 8 November 2001.
From 10 October 2001 to 8 November 2001, Defence
personnel gave advice relating to the misrepresentation of the photographs on
three separate occasions to Minister Reith or his
In what follows the Committee
outlines the nature of each of these contacts.
Ritchie to Scrafton
Minister Reith’s Senior Adviser
(Defence), Mr Mike Scrafton, told Ms Bryant that following Mr Ruddock’s
comments on 7 October, he had been involved in ‘a number of telephone
discussions with AVM Titheridge, Rear Admiral Smith, and Commodore Gately, in
which he was querying whether there was certainty around the facts in this
case’. He advised Ms Bryant that his
discussions ‘particularly with AVM Titheridge and Rear Admiral Ritchie, indicated that the story was true’.
The first of the five pieces of
advice known to the Committee concerning the veracity of the claim that
children had been thrown overboard, was provided to Mr Scrafton by Rear Admiral Ritchie on 10 October 2001.
Rear Admiral Ritchie told the
Committee that Mr Scrafton had rung him on the morning of 10 October, asking about evidence
that would support the claim that children had been thrown overboard. This call prompted Rear Admiral Ritchie, he said, to contact Rear
Admiral Smith seeking further information. At about midday, Rear Admiral Smith advised him that:
the electro-optical film - the video that we all talk about -
showed that there were no children thrown overboard. It showed that there was
one child held over the side, that people were jumping over the side of their
own volition and that one 13 year old ... was pushed over.
I was also told that the CO Adelaide
had thought that there might be reports able to be taken from sailors who were
on the disengaged side ... that indicated that there might be children in the
Rear Admiral Ritchie said
that he passed this information back to Mr Scrafton at 12.42pm on the same day. Rear Admiral Ritchie noted that, at the time of this conversation, he himself believed
that children had been thrown overboard although there was as yet no evidence
to confirm the initial report. He suggested that Mr Scrafton was in
a similar frame of mind and was seeking to know not whether the claim was true,
but whether there was any evidence to support it.
Rear Admiral Ritchie told the
Committee that Mr Scrafton would ‘have walked away from that conversation’
knowing that there was so far no evidence to confirm the first report, but
‘believing that there still might be evidence that supports [it]’.
Bornholt to Hampton
Later that afternoon, Mr Ross Hampton, media
adviser to Mr Reith, was also told that there was no evidence available to Strategic
Command which would support the claim that children had been thrown overboard.
As was discussed in the
previous chapter, Mr Hampton had rung Captain Belinda Byrne, staff
officer to Brigadier Gary Bornholt, seeking to know the numbers of children who
were in the water on 7 October.
This contact was in connection with the imminent release of the two photographs
to the media. Captain Byrne told Mr Hampton that
‘she had been unable to find reports to indicate that children were thrown
Having been told of Mr Hampton’s anger
at this news from Captain Byrne, Brigadier
Bornholt undertook to deal with the matter himself. The Brigadier confirmed with
Strategic Command that they had no evidence that women or children were among
the 14 passengers from SIEV 4 who had entered the water on 7 October. He told
the Senate Foreign Affairs, Defence and Trade Committee’s Estimates hearing on 20 February 2002 that:
I then called the minister’s media adviser at about quarter to
four on that day [10 October], and I said to him, ‘My advice to you is that the
photographs could not be of 7 October because Strategic Command have informed
us that, of the 14 people that they understand were in the water, there were no
women or children’ ... He expressed concern about my advice and told me that the
CDF had confirmed with the minister that the photographs could be released and
that there were women and children in the water. I said, ‘I can’t believe
It then became apparent,
Brigadier Bornholt said, that he and Mr Hampton had
different photographs before them. He told Mr Hampton that he
would check the details and get back to him.
At 4.45pm, Brigadier Bornholt left a message on Mr Hampton’s mobile
telephone, ‘to the effect that I had now confirmed my previous advice that the
photographs were incorrect in that they did not depict the events which the
minister was intending to portray’.
In the meantime, during an interview on ABC radio at 4.10pm, the
Minister had released the photographs as evidence that children had been thrown
Mr Hampton disputed elements of Brigadier Bornholt’s account of this contact.
In particular, he said that when he and Brigadier Bornholt realised that they
were looking at different photographs, he did not recall that the Brigadier had
said that he would check and get back to him.
He also said that he never received the message from Brigadier Bornholt,
although he noted that he received a large number of messages following the
Minister’s media interviews ‘and that he may have therefore missed a message
from Brigadier Bornholt due to a full mailbox’.
The Committee is not entirely
convinced by this explanation for the ‘missed call’. As far as the Committee is
aware, mobile telephone messaging facilities always advise callers if, for
whatever reason, a message is unable to be recorded. It is not the case that a
caller would be allowed to leave a message, but that the message bank would not
Barrie to Minister
The first definitive advice
provided from Defence to the Minister and his office correcting elements of the
children overboard story related to the misrepresentation of the photographs.
On 11 October
2001, Admiral Chris Barrie spoke to the Minister directly about the matter and, on the same
day, Ms Jenny McKenry and Brigadier Gary Bornholt spoke to Mr Mike Scrafton.
Admiral Barrie told the
Committee that he was made aware by both Rear Admiral Ritchie and Vice Admiral Shackleton on
the evening of 10 October, that the photographs were being connected to the
wrong events in the media. On 11 October, he rang the Minister:
I told him that I had been advised that the photographs he had
put out did not describe the events as he portrayed on the 7.30 Report. I cannot remember his precise response, save that we
had a discussion about there being a great deal of confusion about the
photographs. But I do recall that our conversation was testy.
Questioned as to whether he was
sure that Minister Reith understood
the import of this advice, Admiral Barrie said
I had no reason to believe that he did not understand that.
Indeed, in my frame I would say that was the reason we then went on to have a
discussion about the photographs that was a bit testy. That all seemed to line
up for me.
McKenry and Bornholt to
Meanwhile, on the morning of
the same day, the Head of Defence Public Affairs and Corporate Communication, Ms Jenny McKenry, and
PACC’s military adviser (MAPACC), Brigadier Bornholt, gave the same advice to Mr Scrafton. Ms McKenry told the
Committee that the conversation was in several facets. She explained:
The first facet was with Brigadier Bornholt in the room. We
discussed the photographs that had been released. We made it very clear that
they did not represent what they were purported to represent in the press.
Brigadier Bornholt did explain the attempts to clarify that the previous day
with Mr Hampton.
Ms McKenry told Mr Scrafton that ‘There are captions which actually say that the photographs
were taken on the 8th’.
Mr Scrafton went to check the photographs, but phoned back to say that there
were no captions on the photographs in the Minister’s office. Ms McKenry then
sent to Mr Scrafton, at 11.04am, her email of the photographs which ‘quite clearly had the date on
it’. She said that Mr Scrafton ‘did acknowledge receipt of that email in the sense that he phoned
back because there was information on that email which we raised in
Later, Ms McKenry
forwarded to Mr Scrafton a chronology prepared by Mr Bloomfield,
which outlined the sequence of events relevant to the provision of the
photographs to the Minister’s office.
Questioned as to her confidence
that Mr Scrafton understood that the photographs were incorrectly connected to the
events of 7 rather than 8 October 2001, Ms McKenry said:
I have no doubt because we went through the photographs. We
talked about the photographs. We described the photographs. He later phoned back,
having received the photographs. I had mentioned in the course of my email to
him that the photographs I had discovered were on the unrestricted system
within the defence department, which meant that they were readily
distributable. He indicated to me that I should pursue getting them off the
Barrie to Minister
The next piece of advice which,
to the Committee’s knowledge, was provided by Defence to the Minister on the
children overboard issue came on ‘possibly’ 17 October 2001. On that day, Admiral
Barrie had a conversation with Mr Reith in which he informed the Minister that
‘I had been told by the Chief of Navy and COMAST that there were doubts about
whether children had ever been thrown over the side of SIEV 4’. Admiral Barrie went on to say to the
I said to him the doubts seemed to be based on what the
photographs showed - or did not show - and an inconclusive video. I said that I
had indicated to them my position was that, until evidence was produced to show
the initial report to me was wrong, I would stand by it. As at that date, no
further evidence had been provided to me.
The Committee questioned
Admiral Barrie at length about his reasons for not providing definitive advice
to the Minister on whether or not children had been thrown overboard.
Admiral Barrie explained his
position by saying that he did not feel that he himself had been given
definitive advice. His recollection, he said, of Rear Admiral Ritchie’s advice
to him on 11 October was that he spoke of ‘doubts ... I do not remember his being
more definite than that’. Admiral Barrie continued:
I recall that he [COMAST] referred to the photographs and to the
video, and whether or not they were conclusive one way or the other. I said to
him that photographs alone were only part of the evidentiary material and that
until he could produce evidence to show that what had been originally reported
to me was wrong, I would not change my advice to the minister’.
At this stage, Admiral Barrie
said that he also directed Rear Admiral Ritchie to ensure that witness
statements and other evidentiary material was collected ‘while this was fresh
in everyone’s mind’. The Committee
notes that such a collection was already underway independently of Admiral
Barrie’s instruction, and that much of it had already been seen and assessed by
the chain of command.
Later in evidence, Admiral
Barrie elaborated on the issue of how definite COMAST’s advice to him had been,
telling the Committee that:
I think the issue I discern is just how definite was Rear
Admiral Ritchie in his understanding of what took place and how indefinite is
my recollection. But I would put it in this context ... I offered the commanders
an opportunity to come back and convince me that I was wrong if they had
material that was evidence and compelling. On the night of 20 February in
estimates, when Rear Admiral Ritchie and I were looking at that message of 10
October, he said to me ‘If I’d
only had that at the time we had that discussion, I would have come back to
you’. So in my view I do not think that the discussion was as definite as Rear
Admiral Ritchie recalls. I think he understood that an opportunity had been
given to him to come back and fight a repechage if wished to, and at no time
Admiral Barrie said that ‘in
20/20 hindsight ... I would say that on 11 October when Rear Admiral Ritchie had
that conversation with me, rather than leaving it loose and hanging and waiting
for him to come back to me, I should have directed him to resolve it and
reported back.’ Since this did not
happen, however, Admiral Barrie said that he did not take the view that he had
been definitively informed that children had not been thrown overboard.
Accordingly, his advice to the
Minister was that ‘there were serious question marks about evidence in relation
to the children overboard issue’,
but not that he was retracting the initial advice that children had been thrown
In the next chapter, the
Committee discusses in detail the adequacy of Admiral Barrie’s advice to the Minister
at this time.
Silverstone to Minister
The next piece of advice to the
Minister for Defence concerning the veracity of the report that children had
been thrown overboard from SIEV 4 came from Brigadier Silverstone on 31 October
Brigadier Silverstone gave
evidence to both the Powell and Bryant inquiries stating that on the afternoon
of Wednesday 31 October, Mr Reith and his party visited the Brigadier’s
headquarters in Darwin. In his statements, he said that Mr Reith had spoken of
the video of SIEV 4 ‘and seemed to think that the video held the key, showing a
child, or children in the water’.
Brigadier Silverstone said that he had told the Minister that he had not seen
the video himself, ‘but that he understood that it wasn’t very clear and did
not show children in the water’.
elaborated on his conversation with Mr Reith in evidence to the Committee. He
My recollection of the discussion with Minister Reith on the
afternoon of the 31st is that, when he raised the issue of the
video, I was uncertain about what he had been told. It was inconceivable to me
that the CDF had not informed him of this issue at that time. I also had
concerns for where we stood, under the caretaker role, in terms of the passage
While I was thinking of these issues, I used words to the effect
of ‘Well, Minister, the video does not show things clearly and does not show
children overboard. We also have concerns that no children were thrown in the
water at all and we have made an investigation of that’. Then I paused,
expecting to hear a ‘yes’. He then said, ‘Well, we had better not see the video
then,’ and left my office.
When asked to comment on what
he thought the Minister had meant by that, Brigadier Silverstone said that:
They are the words the minister used. He could have meant a
range of things - literally or as a side comment. As he left my thoughts were,
‘He hasn’t listened to what I said’.
Brigadier Silverstone told the
Committee that after the Minister left his office, he had informed Rear Admiral
Ritchie of the conversation.
The Committee notes that by the
time of this interchange, Admiral Barrie had informed the Minister directly
that the video was inconclusive, and Rear Admiral Ritchie had informed Mr
Scrafton that the video did not show children thrown overboard.
Houston to Minister
The final piece of advice
provided directly to the Minister for Defence on this issue came from the then
Acting CDF, Air Marshal Angus Houston, on 7 November 2001. That advice was that
there was no evidence to support the claim that children were thrown overboard
from SIEV 4.
Air Marshal Houston informed the Senate
Foreign Affairs, Defence and Trade Committee at Estimates that, on the morning
of 7 November, he had contacted Air Vice Marshal Titheridge in order to discuss
an article in that day’s The Australian
newspaper. The article raised
questions about the authenticity of the photographs which purported to be
evidence of children thrown overboard, and also reported that residents of
Christmas Island were alleging that naval officers had told them that the
reports of that incident were untrue.
Air Vice Marshal Titheridge told the Acting CDF that the Minister wished to
speak to him urgently about the report.
Air Marshal Houston noted that
he had then set about discovering as much as he could about the events of 7 and
8 October 2001, in order to be in a position to advise the Minister. He spoke
to Air Vice Marshal Titheridge of the video, which was also mentioned in The Australian’s article. AVM Titheridge
had informed him that he had not seen the video but that he had been briefed in
some detail about it. He described it, according to Air Marshal Houston, in the
He indicated that it was an infra-red video, quite grainy and of
quite poor quality and, although it showed people jumping overboard, it did not
show any women or children going into the water. The point he did make, though,
was that there was a child that was taken to the side of the vessel and held
over the side of the vessel.
Air Marshal Houston inquired
about whether he could see the video, but the copy held by Maritime Command in
Sydney was unable to be broadcast through to Canberra. The Air Marshal then
spoke to Brigadier Gary Bornholt, who showed him a copy of the signal
chronology of 10 October from HMAS Adelaide. Air Marshal Houston told the Senate
Estimates Committee that:
From that [chronology] it became clear - as it appeared to me -
that, yes, people had jumped into the water, but there was no evidence there to
suggest that women and children had jumped in the water. There was one
reference, however, to a child being held over the side. I think in the actual
message reference was made to that, in terms of the child being dressed in a
life jacket and then being put in a position on the side.
Brigadier Bornholt also told
Air Marshal Houston that the photograph which had appeared again in The Australian
that morning did not depict the events of 7 but rather the 8 October 2001.
Having gathered this information,
Air Marshal Houston telephoned the Minister. He provided, he said, the
following advice to the Minister:
I started off by telling him that I felt that it was a very
confused situation, but from this evidence that I had seen it appeared to me
that there had been a boarding operation on the 7th, people had
jumped into the water, there had been an incident with a child being held over
the side, but fundamentally there was nothing to suggest that women and
children had been thrown into the water.
I then went on, as I can recall it, to describe the fact that on
the second day there was a rescue operation when the vessel sank and that the
photograph [sic], from what I had just been advised, related to the events of 8
October. After I had given him this run down of what happened there was silence
for quite a while. It seemed to me that he was stunned and surprised.
Essentially, he then said, ‘Well, I think we’ll have to look at releasing the
I omitted to say earlier on that I also explained to him that
the video was inconclusive in proving whether any women or children were thrown
into the water due to its poor quality.
Members of the Committee were
concerned to understand how Air Marshal Houston had reached the conclusion that
no children had been thrown overboard on the basis of the signal chronology.
Senator Brandis said:
I cannot see any reference in this document to the proposition
or the question of whether or not there was a child in the water. I agree it is
silent on the matter. It just does not tell you one way or another.
In response, Air Marshal
Houston stated that: ‘If a child had been in the water, it would have been
reported in the text of the message’.
He based that assessment, he said, not only on his many years’ experience of
military messaging in joint operations,
but also on the fact that although the signal made a number of specific
references to children on board SIEV 4, there were no references to children
overboard. He noted that:
all the references in this signal relate to the fact that the
children are on the vessel: ‘children taken to the side’, ‘child held over the
side’, ‘child not thrown overboard’, ‘male SUNCs in the vicinity of wheelhouse
threatened to throw women and children overboard. This did not occur’.
In other words, the chronology
was explicitly concerned with the whereabouts of children on the vessel. Since
the fate of children was of explicit concern, the Committee like Air Marshal
Houston is satisfied that the absence of reference to children in the water is evidence,
not of neglect of the question by the signal’s author, but of the fact that
indeed they were not in the water.
The day after Air Marshal
Houston’s conversation with Mr Reith, Vice Admiral Shackleton, Chief of Navy,
commented on the ‘children overboard’ story to the media, saying:
Our advice was that there were people being threatened to be
thrown in the water and I don’t know what happened to the message after that.
After these remarks had been
made public, Vice Admiral Shackleton was contacted on the afternoon of 8
November by Mr Peter Hendy, chief of staff to Minister Reith. Mr Hendy told the
Vice Admiral that what he had said was being portrayed in the media as
contradicting the Minister. Mr Hendy said that he clearly recalled Mr Reith
being advised by Navy that children had been thrown overboard, and suggested
that Vice Admiral Shackleton issue ‘a clarifying statement to remove the
During this conversation, Vice
Admiral Shackleton said, he ‘gained the strong impression that he [Mr Hendy]
had not been told that the original report was incorrect, and this came as a
surprise to me’.
The Vice Admiral acknowledged
that it was true that the Minister had originally been advised that children
had been thrown overboard, and that his own remarks had been mistaken in that
regard. He therefore agreed to
issue a clarifying statement addressing that issue. It said:
My comments in no way contradict the minister. I confirm the
minister was advised that Defence believed children had been thrown overboard.
The Committee discusses the
circumstances surrounding Vice Admiral Shackleton’s ‘clarifying’ statement in
the next chapter.
The following two tables
illustrate the timing, formality and definitiveness of advice provided to the
Minister and his office from Defence concerning the veracity of both the
‘children overboard’ story itself and the misrepresentation of the photographs.
The Committee considers formal
advice to be that provided by either the CDF, the Secretary or by an officer
responsible for a relevant area, and part of whose role it is to provide
definitive advice to the Minister or his office. This is not to say that advice
provided by other officers or in other contexts is invalid or inappropriate. It
is simply that, in such cases, the Minister or his staff may be entitled to
deem such advice as less weighty, or to deem the officer as less likely to know
all the relevant information.
Table 5.1: Advice relating to
veracity of children overboard incident
10 October 2001
COMAST to Mr Scrafton: non-definitive
10 October 2001
MAPACC to Mr Hampton: non-definitive
17 October 2001
CDF to Minister Reith: non-definitive
31 October 2001
NORCOM to Minister Reith: non-definitive
7 November 2001
A/CDF to Minister Reith: definitive
8 November 2001
CN to media: non-definitive
Table 5.2: Advice relating to
misrepresentation of the photographs
10 October 2001
MAPACC to Mr Hampton: definitive
11 October 2001
CDF to Minister Reith: definitive
11 October 2001
HPACC and MAPACC to Mr Scrafton: definitive
In the next chapter, the
Committee will analyse the role played by the Minister’s office in allowing the
record to stand uncorrected in relation to both aspects of the children
overboard story. Before it turns to that issue, however, the Committee briefly
outlines the nature of the advice provided by Defence to individuals and
agencies other than the Minister and his office.
Correcting the Record: Advice
to PM & C and PST
There were three particular
occasions upon which advice about evidence relating to the correction of the
initial children overboard report was provided by Defence to those other than
the Minister and his staff.
It should be noted that the
‘three’ occasions are three specific or new events. Ms Katrina Edwards
indicated in her evidence to the Committee that there were other conversations
between officers in the Social Policy Division of PM & C and officers in
Strategic Command where the lack of written evidence held by Strategic Command
was discussed. 
The three occasions were:
Group Captain Walker’s advice to the People
Smuggling Taskforce on 7 October 2001;
Strategic Command’s chronology of events
supplied to the Social Policy Division in PM & C on 10 October 2001; and
advice from Commanders King and Chatterton to
the Defence Branch, International Division, in PM & C on 11 October
To the Committee’s knowledge,
apart from this advice to the PST and to other areas of the Department of the
Prime Minister and Cabinet, Defence provided advice relating to the correction
of the initial children overboard report to no other agency or individual.
In what follows, the Committee
outlines the nature of the advice provided to the PST and PM & C, and
analyses the adequacy of PM & C’s response to that advice.
Advice from Group Captain
Walker to PST
On 7 October, Group Captain
Steven Walker, Director, Joint Operations (DJOPS) attended the morning meeting
of the PST in the place of Air Vice Marshal Titheridge. At that meeting, he said, he learnt
from Ms Jane Halton, Chair of the PST, that the passengers aboard SIEV 4 ‘were
throwing children into the water’.
Since, as Group Captain Walker
said, this ‘news ... was new to me’, after the meeting he went back to his headquarters
to try to confirm the information.
He told the Committee that:
I could find nothing in the written message traffic that
mentioned children. I returned to the evening IDC and, when it came my turn to
speak, I pointed out that I had no written confirmation that children had gone
into the water. That was not to say that it did not happen, but what I was
trying to stress was that I had no auditable evidence that children had gone
into the water.
Ms Katrina Edwards, former
First Assistant Secretary, Social Policy Division, PM & C and then
notetaker for the PST meetings, confirmed Group Captain Walker’s evidence in
this regard, saying that he had ‘not been able to provide any updated
information on what had occurred, nor had he been able to validate the
Despite Group Captain Walker’s
advice, the options paper prepared for the Prime Minister on 7 October 2001
included the statement: ‘This [ie. the attempt to deter SIEV 4’s entry] has
been met with attempts to disable the vessel, passengers jumping into the sea
and passengers throwing their children into the sea’.
This paper was cleared by
members of the PST at the evening meeting on 7 October. According to the
evidence provided by Ms Edwards, that meeting started at 5.30pm with the same
group attending as at the morning meeting.
Air Vice Marshal Titheridge arrived somewhat later. I have since
established from Department of the Prime Minister and Cabinet security records
that he entered the building at 6.25pm. My recollection, verified by the
editing record of the document, as well as building security records, is that
the paper was completed and cleared by all of those present. Group Captain
Walker remained after Air Vice Marshal Titheridge’s arrival for the bulk of the
meeting, but left shortly before the end, once the Defence related material had
Reponse from PM & C
Ms Halton told the Committee
that she did not recall Group Captain Walker telling the evening meeting of the
PST that he had been unable to find signal traffic which corroborated the
morning’s advice that children had been thrown overboard. However, she said,
‘such a comment would not have raised particular concerns as our experience to
date had been that signal traffic could often be slow in arriving’.
She also noted that, during the
detailed editing of the options paper prepared by the PST for the Prime
Minister, certain of the information from Defence, such as the number of those
on board SIEV 4, was explicitly tempered by a caveat in that paper. By contrast,
she remarked, the Defence representatives did not suggest that the report that
children had been thrown overboard needed to be similarly tempered.
Committee was concerned at the contradiction between Ms Halton’s evidence
concerning the editing process undertaken during the preparation of the options
paper on 7 October, and evidence received from Air Vice Marshal Titheridge.
According to Ms Halton, members of the PST
attending the evening meeting on 7 October were involved in an extensive
process of editing the ‘first cut’ of the paper which she had dictated during
the afternoon. There was, she said, a ‘line by line discussion of the paper’. She had ‘a vivid memory of my
assistant running in and out with the paper as the edits were coming out’, and emphasised that, when it was all
agreed, the document ‘ultimately came back for one last read’. She told the Committee that:
My memory is that Group
Captain Walker had left by that point. My memory is that he stayed for the
period when all the Defence material and issues that were material to Defence
were dealt with but that when that material had been completed and all the
edits had been agreed he left. Air Vice Marshal Titheridge was there until the
completion of the meeting.
Committee notes that this evidence is consistent with that quoted from Ms
Edwards’s testimony above. The account is, however, at variance with that of
Air Vice Marshal Titheridge who, in a written answer to a Question on Notice
about his involvement in developing the options paper, said:
I was one of the team that
provided oral advice for a draft paper on broad handling strategies for
unauthorised arrivals. I was not given a copy of the draft. I did not see
elements of the final document until it was released by Ms Bryant.
Halton insisted to the Committee that her version of events was verifiable from
her own notes and from other sources:
[T]he document was edited
whilst Air Vice Marshal Titheridge was there in the room. That is the memory of
the officers from Prime Minister and Cabinet who came in and out of the room
taking the edits away, and it is consistent with the security camera details
from the department and the times at which the document was edited.
Halton has subsequently provided the Committee with information detailing the
times at which PST members entered and left the building. She has also provided
details about the period over which the draft options paper was edited, and the
scale and nature of the changes made.
Halton advised that members of the PST had been provided with numbered copies
of the draft which, ‘because they were sensitive issues’, were taken back ‘when
everyone had finished the editing process’.
The ‘document did not change after people had left the building’.
The Committee notes that the
account of this very detailed process for editing and finalising the options
paper on 7 October is to some extent inconsistent with the account provided by
Mr Bill Farmer of the general process surrounding the development of advice
from the PST. This matter is discussed in chapter 7.
In relation to the specific
question of whether the PST, and Ms Halton in particular, should have taken
more seriously Group Captain Walker’s advice on the evening of 7 October, the
Committee notes the following points. First, Group Captain Walker told the
Committee that he had no ‘auditable evidence that it had happened,’ but:
[t]hat was not to say that it did not happen. It appeared to me
that people in a different communication chain had different information, and
they obviously had information that they had confidence in.
In his evidence to Major
General Powell’s inquiry, Group Captain Walker conceded that Strategic Command
(SCD) was not always confident that it had all the relevant information. He
By the time that it appeared the ‘children’ information was in
the public domain, there were a number of rumours that other evidence was
abroad. At the SCD level, it was then assumed that Navy, NORCOM, AST or
Coastwatch had the fuller picture than our message traffic.
Second, the Committee notes
that neither Group Captain Walker nor Air Vice Marshal Titheridge inserted a
caveat in relation to the ‘children overboard’ claim into the options paper
prepared at the evening meeting of the PST, although other elements of the
Defence information were explicitly caveated.
Given the nature of Group
Captain Walker’s cautionary words, the absence of a caveat on this item seems
somewhat strange. If Air Vice Marshal Titheridge ‘was not given a copy of the
draft’ options paper, and ‘did not see elements of the final document until it
was released by Ms Bryant’, then
no opportunity to caveat the relevant sentence in the options paper was
available to the Defence representatives. This would mean that the lack of a
caveat could not properly be used by Ms Halton to justify ignoring Group
Captain Walker’s advice.
However, the Committee notes
that the Air Vice Marshal’s evidence in this regard is contradicted by evidence
from both Ms Halton and Ms Edwards.
Strategic Command Chronology
According to her evidence to
the Bryant inquiry, Ms Halton noted the media speculation about the ‘children
overboard’ incident on 8 October and told Defence representatives at the
meeting on 9 or 10 October that:
they had better be certain about the veracity of the initial
reports and they should do some checking.
In her evidence before the
Committee, Ms Halton confirmed that she had asked this to be done at the
meeting of 9 October 2001. Ms
Edwards elaborated on the context of this request, saying that the Social
Policy Division had begun seeking more details about the incident from
Strategic Command on 8 October following the receipt of Situation Report 59
from the Department of Foreign Affairs and Trade which did not mention children
Ms Edwards said: ‘I can
remember being concerned about the lack of mention of children or people being
pushed overboard. While it is not unusual for sit reps to be short on the
details of events, Ms Halton and I agreed that, in the circumstances, we should
follow up to obtain further details of the incident’.
Ms Halton told the Committee
that she had no memory of seeing DFAT sitrep 59 on that day, and that it was
not the lack of mention of children overboard in that document which prompted
her to seek further details of the event. From her perspective, she said, ‘the
trigger point was media reporting’. She noted that: ‘It may well have been that
the trigger point for her was sitrep 59. In any event, we agreed we should get
Ms Edwards advised that:
Between 8 October and 10 October my group made vigorous
inquiries of Defence, including seeking a full chronology of the events. As I
recall, Defence asked that we clear the request with the office of the Minister
for Defence, which we did. In response to these requests, Strategic Command
forwarded a chronology to the Social Policy Division at lunchtime on 10
Ms Edwards said that during the
afternoon her staff advised her that they felt that there were a number of
inconsistencies in the document, which they then pursued with Strategic
At the end of the chronology,
however, there was a series of four bullet points under the heading, ‘EVENTS’.
The last bullet point, which has also been described as a footnote, said:
There is no indication that children were thrown overboard. It
is possible that this did occur in conjunction with other SUNCs jumping
Ms Edwards said that she met
with Ms Halton later in the afternoon, after the latter had returned from
interstate, and just prior to a meeting of the PST that evening. She told the
I vividly recall reading out the words of the footnote to her
and then handing her the chronology. She indicated some surprise at the wording
of the document, as she seemed to be aware of other supporting evidence for the
Ms Halton stated that she had
‘no memory’ of having seen the chronology. She said, however, that she did not
doubt Ms Edwards’s recollection of briefing her, but that the advice in the
chronology would have been overridden, for her, by this ‘other supporting
evidence’. As Ms Edwards and Ms Halton each explained to the Committee,
knowledge of it had just then been supplied to Ms Halton in a telephone call
from Minister Reith. 
It consisted of photographs, a
video of the incident and witness statements which were being collected from
Ms Halton indicated initially
that while she was sure it was Mr Reith who had told her about the video, it
may have been Air Vice Marshal Titheridge who informed her about the
photographs and the witness statements.
However, she noted later that Mr Reith had also informed her in the course of
their conversation that he had just given a media interview. This was the interview at which he
had released the photographs. Given that, and given that Air Vice Marshal
Titheridge had not by that stage seen the photographs in question, the
Committee thinks it reasonable to assume that it was Mr Reith who informed Ms
Halton of all three pieces of ‘evidence’ for the claim that children had been
The Committee notes that this
judgement is also consistent with Ms Edwards’s recollection that, following her
conversation with Mr Reith, Ms Halton had sought confirmation not only of the
existence of the video, but also of the photographs and the witness statements.
Response of PM & C
On the evening of 10 October,
then, Ms Halton and Ms Edwards were faced with two pieces of advice.
The first was the chronology
from Strategic Command Division. The chronology did not rule out the
possibility that children had been thrown overboard, but said that ‘there was
no indication’ that the incident had occurred. The second was verbal advice
from the Minister from Defence, stating that he had three pieces of evidence
for the incident and that, by implication, so satisfied was he of their
veracity that he had publicly released the photographs.
Ms Halton emphasised that she
did not simply take the Minister at his word. She had not previously heard of
the existence of the video, and so she made a number of calls to confirm the
Minister’s information on this point. She called Air Vice Marshal Titheridge,
Mr Hampton, Mr Hendy and at last Mr Scrafton, who finally confirmed that the
According to Ms Edwards’s sense
of Ms Halton’s conversations with members of the Minister’s office, she was
that there was no doubt that the incident had occurred and that
a video of the incident existed, although it was of poor quality, that there
were photos and that statutory declarations were being gathered from crew
Questioned about why she had
made the decision to trust Mr Reith’s verbal advice rather than the more
cautious written advice from Strategic Command Division, Ms Halton told the
Committee that there were three main reasons.
The first was her sense that,
if the Strategic Command advice had been really important, someone would have
contacted her directly about it. She pointed out repeatedly that the advice
appeared as a ‘footnote’ on a fax sent to ‘a junior officer’, which was not accompanied by a
telephone call to her, or a ‘red
light flashing and a warning bell problem type alert’. She said that if Defence had really
intended to inform the PST of problems with the children overboard report:
You do not go to a junior officer in the social policy division
by fax with no follow-up phone calls ... If you have an issue of substantial
concern in relation to what was going on in this context, you pick up the phone
and ring me or, if you cannot find me, you ring Katrina Edwards. This did not
The Committee notes that this
so-called ‘junior officer’ was a member of Ms Edwards’s Social Policy Division
who had been specifically tasked with seeking further advice on the children
overboard report from the Strategic Command Division.
The second reason Ms Halton
gave for discounting the Strategic Command advice at this time was her view,
evident in the discussion about Group Captain Walker’s advice, that Strategic
Command did not necessarily have the most up to date information from the chain
of command. The third was that at the meeting of the PST that same evening, no
one demurred from the view that it had been established that children had been
Elaborating on both these
points, Ms Halton said:
we were advised by senior people who were, as best you could
tell, more connected to the actual day-to-day operations of this whole process,
that there was ... documentary evidence ... and that comprised the photographs.
The photographs were then duly published ...the simple reality is
that people who were more intimately involved with this than Strategic Command
told us there was a video, there were photos - which then duly emerged - and
there were witness statements. Not only did we do that, but our interpretation
of the facts of the case was put in front of the evening meeting of the 10th.
Those facts were not denied.
The Committee notes, first,
that Ms Halton was mistaken in advising the Committee that the Defence
representative at that meeting was Air Vice Marshal Titheridge. The Defence attendee was actually
Commander Paul Davies from Strategic Command, whose first and only meeting of
the PST this was. The Committee
has some concerns about whether Commander Davies would actually have been in a
position to confirm or call into question any presentation of the ‘facts’ as
It is also not clear to the
Committee just how explicitly the issue was canvassed in the PST meeting on 10
October. There are no records of such a discussion in the notes of the meeting, but Ms Edwards, the notetaker, told
the Committee that she had been called away to a telephone call ‘for at least a
substantial initial period of that meeting’.
She informed the Committee that it was possible that the discussion had taken
place while she was absent.
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 office of Minister Ruddock, Mr Ross Hampton in the office of
Minister Reith and to Minister Downer’s office.
Finally, the Committee notes
that the photographs which were ‘duly published’ depicted two women and a girl
in the water, but that Ms Halton
recalled being told that ‘We didn’t think any women had gone in’. She explained that she ‘tended to
ask whether any women or girls had gone in the water’, because she knew that
‘most of these women wear the hajib or something of that sort. The notion that
somebody who is unlikely to swim ... and the notion of ending up in the water
wearing a full hajib caused me some concern’.
She remarked too that she believed that the child or children thrown overboard
were male: ‘The impression I had was of no girls and no women’.
It might be argued that the
contradiction between Ms Halton’s ‘impression’ of who was in the water and what
the photographs depicted should have led her to interrogate the veracity of the
pictures released by Mr Reith.
Nevertheless, the Committee
notes both that Strategic Command never returned to the PST with definitive
advice overturning the report that children had been thrown overboard, and that
Ms Halton was advised positively and directly by the Minister for Defence that
he had evidence to support the claim.
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.
The Committee considers that
the chronology provided by Strategic Command Division to PM & C should have
sounded a significant warning note in relation to the sustainability of the
original report that children had been thrown overboard.
The Committee is satisfied that
its significance was appreciated by Ms Edwards, and that it was properly
brought to the attention of Ms Halton.
The Committee notes Ms Halton’s
evidence that ‘I did not see the chronology; I did not receive it’. However, the Committee also notes
that the talking points prepared on 10 October in PM & C were based on that
Strategic Command chronology. Those talking points were provided to PST members
at the meeting on 10 October and, according to Ms Edwards, were sent that
evening to Mr Miles Jordana, international adviser to the Prime Minister.
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.
Nevertheless, the Committee
acknowledges that, in the face of the direct advice from the Minister for
Defence to Ms Halton and in the absence of any more positive advice from the
Defence department itself, Ms Halton was placed in a position from which it
would have been difficult, and perhaps seemingly redundant, to seek further
In the next chapter, the
Committee will discuss the extent to which Mr Reith may be said to have
knowingly misled Ms Halton at this time.
Advice from Commander King
The final piece of advice that
came directly from Defence to the Department of the Prime Minister and Cabinet
related to the misrepresentation of the photographs.
On 9 October 2001, Strategic
Command Division sent the email of the two photographs taken from the sinking
of SIEV 4 on 8 October to Commander Piers Chatterton, Director of Operations,
Navy. Commander Chatterton told the Committee that the reason for him getting
the pictures was that he was ‘the point of contact for Strategic Command
Division inside Navy headquarters at staff level, and the officer sending me
those pictures would know that I would be the person to pass them on to the
appropriate person within Navy headquarters’.
Commander Chatterton assessed
that the photographs depicted ‘a good news story of RAN sailors doing a
courageous and brave act and that this was a public relations matter’. He duly sent them to Mr John Clarke,
Strategic Communications Adviser to the Chief of Navy.
On 10 October, Commander
Chatterton saw that the photographs were being portrayed on television as
evidence of the report that children had been thrown overboard on 7 October,
rather than as pictures of the rescue of passengers during the sinking of SIEV
4 on 8 October.
On 11 October 2001, Commander
Chatterton advised Mr Clarke of the error.
He also advised Commander Stefan King, who was then, according to Commander
Chatterton, the Defence Force Liaison Officer in PM & C. Commander Chatterton told the
Committee that he thought it was appropriate for him to pass this information
to Commander King for the following reason:
I believed that he should be made aware of that information, as
it involved Defence and high profile activity which was occurring that involved
the political level at which he was the liaison officer. That is why I gave him
Commander King in turn
expressed the view that he considered that the advice passed on by Commander
Chatterton to him ‘was a briefing by a relevant person for a relevant purpose’.
Accordingly, also on 11
October, he passed on the advice to his immediate supervisor in PM & C’s
Defence Branch, International Division, Ms Harinder Sidhu, and they together
informed their branch head, Dr Brendon Hammer.
Response of PM & C
It became clear in evidence to
the Committee, that Commander King had a very different sense of the weight to
be attached to the information than did his supervisors in PM & C.
In part, this appears to have
been the result of the fact that, while Commanders Chatterton and King
considered Commander King to have a liaison function between the departments of
Defence and PM & C, Ms Sidhu
and Dr Hammer considered him to be a ‘secondee’ to the Department of the Prime
Minister and Cabinet with no formal liaison role.
Dr Hammer observed before the
I gather from the testimony that has come before this committee
that that [liaison officer] is the designation of his position within the
Department of Defence, but within the Department of the Prime Minister and
Cabinet he is a secondee from the Defence organisation. He has no formal role
in liaison with Defence ... For the period of his secondment he was a line member
of my branch, very much like any other member of the branch.
For this reason, according to
Dr Hammer, he did not consider Commander King to be a ‘special’ or ‘formal’
conduit of information from Defence to PM & C, nor to be the appropriate
person through whom information of this kind, were it true, would be conveyed.
Ms Sidhu described her sense of
what had been conveyed to her by Commander King in the following terms:
I was informed by Commander Stefan King ... that he had just
returned from an interdepartmental meeting at Strategic Command in Defence
regarding Operation Slipper. He said to me that, in the margins of the meeting,
he had overheard a conversation between other Defence officials regarding the
SIEV 4 incident. He said the nature of the discussion was that the photographs
which had been published in the media depicting the ‘children overboard’
incident were not of the alleged incident; rather they had been taken a day
later when the Navy was conducting a rescue of asylum seekers once their boat
had sunk into the water.
In a similar vein, Dr Hammer
told the Committee that Commander King had advised him that:
‘I have heard there is a rumour circulating over in Defence that
there is something wrong to do with the timing of the photographs in relation
to children being thrown overboard’ ... I recall thinking, ‘Another rumour from
Defence - I wonder what this is about’. There was no reason at that time to
expect that there was anything unreasonable, false or what have you about the
photographs. I did not have any indication from anywhere that there was a
difficulty with the photographs, and I was a bit intrigued that I was even
being bothered, frankly, with a rumour - through an entirely inappropriate
channel, incidentally - about something that I did not have within my area of
Dr Hammer said that he assumed
that if there was anything in the ‘rumour’ then it would be passed ‘through the
proper, appropriate and predetermined channels for liaison between Defence and
PM & C on people-smuggling and illegal immigration’. That is, he assumed that it would be
passed to Ms Halton by the Defence representatives on the PST. Accordingly, he
determined that he did not need to do anything with the information. His
thoughts, he said, were: ‘This is not a significant input in that it is a
rumour and that it is coming through a junior officer and through the wrong
channel’. This was where the
matter rested until 7 November 2001.
On the evening of November 7,
an officer from the Social Policy Division, Ms Catherine Wildemuth spoke to Ms
Sidhu, seeking any information held by the Defence Branch on SIEV 4. As they
were searching for that information on her computer, Ms Sidhu repeated
Commander King’s information.
According to Ms Sidhu, what she said ‘was practically a throwaway comment:
“Haven’t you heard there are rumours circulating in Defence that the
photographs are not actually as they have been presented?”’
Ms Wildemuth, however, seemed
shocked and surprised by the comment,
and passed it on straightaway to her supervisor, Ms Bryant. Despite the fact
that Commander King’s information was by now being characterised as ‘tearoom
gossip’, Ms Bryant contacted Ms Halton who immediately rang Mr Miles Jordana,
international adviser to the Prime Minister.
Ms Halton told the Committee that:
I still have quite a strong memory of that phone call and I have
a memory of thinking there was something out of Defence yet again I did not
know about ... I did what I had always done right throughout this process and
that is immediately pass the information on. Again, I have a clear memory of
ringing Mr Jordana about that and saying to him, ‘Jenny Bryant’s just told me
this piece of gossip’. He said to me ... that this issue had already been
canvassed in the papers and that they were having a discussion with Mr Reith’s
office and ... the issue was in hand.
After her conversation with Mr
Jordana, Ms Halton said she ‘had the clear impression that the matter was in
hand. I had a clear impression that it was being dealt with and I did not need
to worry about it’.
Dr Hammer’s response to initial
The Committee’s evaluation of
the responses of Ms Sidhu and particularly of Dr Hammer to Commander King’s
advice is as follows.
First, the Committee
acknowledges that this issue did not fall directly within Dr Hammer’s area of
responsibility and that he was extremely busy with other matters. Second, the Committee acknowledges
that Dr Hammer could reasonably have expected the information, if it were true,
to be passed directly from the high level Defence representatives on the PST to
Ms Halton. The Committee will address what was clearly a failure of
communication from Defence at that level in the next chapter.
Certainly, with the benefit of
hindsight, it is clear that an email from Dr Hammer to Ms Halton may have led
to the misrepresentation of the photographs being corrected almost immediately.
The Committee accepts, nevertheless, that although it is easy with the benefit
of hindsight to say that Dr Hammer ‘ought’ to have passed the advice on, this
was a judgement that may have not been obvious at the time.
However, the Committee also
notes the following points:
Commander King was a serious and conscientious
officer who, according to Ms Sidhu, never acted inappropriately and ‘was more
inclined to err on the side of caution and seek advice on how to proceed before
saying or doing anything’;
Commander King and Ms Sidhu mutually agreed that
the report or rumour was at least potentially significant, or potentially
forming, in Ms Sidhu’s words, ‘part of a larger story’;
Dr Hammer agreed that sometimes even reports
characterised as rumours or as informal advice do turn out to be significant.
In the light of these points,
the Committee is concerned about what seems to have been the mode of Dr Hammer’s judgement that he
need take no responsibility for passing on or verifying the information. It is
a mode which also characterised Ms Halton’s dismissal of the weight that should
be attached to the Strategic Command chronology.
The Committee is referring to
Dr Hammer’s consistent use of descriptors such as ‘rumour’, ‘junior officer’,
‘scuttlebutt’, and ‘unreliable
channel’ as justification for not taking the advice seriously. Similarly, Ms
Halton speaks of the advice from Strategic Command being faxed to a ‘junior
officer’, although he is an officer tasked with seeking just that advice, of
the ‘footnote’ and ‘tearoom gossip’.
The Committee is unsure about
whether this mode is adopted by way of retrospective justification of
judgements made, or whether it infuses the making of the judgements themselves,
but in either case it could lead to failures to take advice from other
individuals or agencies sufficiently seriously.
The Committee considers that
the use of this language unfairly denigrates the officers to whom it is
Ms Halton’s response to
Ms Halton was asked whether she
should have done more to verify the content of the ‘rumour’ about the
misrepresentation of the photographs, which she first heard on November 7.
Although she passed the
information on to the Prime Minister’s office, she did not embark on her own
investigation of the truth of this significant matter. Senator Faulkner asked:
to what extent was it important for you to follow up with
whomever - and not just with Mr Jordana, a member of the Prime Minister’s staff
who at a minimum had an absolute axe to grind three days out from an election -
to ensure that the public record was corrected?
In response, Ms Halton noted
that, by the time it reached her, the ‘gossip’ was sixth or seventh hand. Once
she knew, she said, that a spokesman for the responsible minister, namely Mr
Reith, had denied the report, she was satisfied that there was no truth to it.
It is to the role of Mr Reith
and his office in sustaining the original report of children overboard that the
Committee now turns.