Government Senators' Report
1. On the
evening of 7 November 2001
Mr. Mike Scrafton, who was at the time a
ministerial adviser to the then Minister for Defence, Hon. Peter
Reith MP, spoke by telephone with the Prime Minister on at least two occasions. At the time
of the conversations, the Prime Minister was at The Lodge in Canberra and Mr.
Scrafton was at a restaurant in Sydney. On each occasion, the calls were
initiated by the Prime Minister to Mr. Scrafton's
mobile telephone. Mr. Scrafton does not suggest that he initiated any of the
2. November 7
was the Wednesday prior to the 2001 Federal election. It was also the eve of
the day on which the Prime Minister was to address the National Press Club. Mr.
Howard, who was engaged in the preparation of his address, was in the company
of four of his senior advisors: Mr. Arthur Sinodinos, his Chief of Staff, Mr.
Tony Nutt, his Principal Private Secretary, Mr. Tony O'Leary, his Press
Secretary and Mr. Paul M'Clintock, the Secretary to Cabinet. Mrs Howard was
also present. One of the issues which would probably arise at the National
Press Club was the so-called "children overboard" affair. The
background and development of that episode is summarised, in terms which
Government Senators do not necessarily adopt but which highlight the key issues
in the controversy, in Chapter 1 of the Majority Report of this Committee
("the Majority Report").
3. The core
factual controversy in the "children overboard" affair was whether
children had been thrown overboard from an illegal entry vessel, designated
SIEV 4, by asylum seekers, during the course of apprehension and boarding by an
Australian Navy vessel, HMAS Adelaide on 7 October 2001. Initial reports from the Adelaide that
that was so had been publicly referred to by Ministers (including the Prime
Minister) in the days immediately following. The episode was politically
significant, particularly as it arose in the early days of an election campaign.
4. Over the
following days and weeks, doubts arose within various parts of the Defence
bureaucracy and the armed services about the accuracy of the original report
(and thus the Prime Minister's and Ministers' statements), although the
original report was never rescinded or countermanded by the Chief of the Defence
Force, Admiral Barrie, who was the Government's principal adviser on such
matters. The existence of such doubts, and questions about the veracity of
still photographs initially advanced to support the accuracy of the initial
report, had lately come to light, in particular by an item in The Australian newspaper on the morning
of November 7 which reported that the photographs were not of the alleged
children overboard incident (as they had been represented by Mr. Reith to have
been), but of the subsequent sinking of SIEV 4, when its occupants (including
children) were immersed.
principal purpose of Mr. Scrafton's conversations with the Prime Minister was
to inform him about the contents of a Navy video (sometimes called "the
grainy video"), which had been taken from the bridge of the HMAS Adelaide during the course of the
alleged incident. The video did not
purport to record the entire incident, since it only showed activity on one
side of SIEV 4. Nevertheless, it was the
only contemporaneous photographic record of the incident.
6. Mr. Reith
asked Mr. Scrafton to view the video, which he did in Sydney on the afternoon
of 7 November, and be prepared to tell the Prime Minister about it. Evidently
Mr. Reith told Mr Howard that Mr Scrafton had viewed the video. Mr. Scrafton was expecting to hear from the
Prime Minister that evening so he could describe the contents of the video to
him. This was the only reason why the
Prime Minister would be ringing Mr. Scrafton.
7. In the
circumstances described below, a controversy has developed about what Mr.
Scrafton told Mr. Howard during the course of those conversations. The core factual issue before this Committee
is whether Mr. Scrafton's assertions about that conversation, made on and
subsequent to 16 August 2004, are credible or reliable.
8. On the day
after his conversations with Mr. Scrafton (i.e. 2 days before the election),
the Prime Minister ordered the release of the video. Although the video, because it showed a view
of only one side of SIEV 4, did not conclusively show that children had not been thrown overboard, the events
depicted on the video did not provide any evidence to support the statement
that children had been thrown
overboard. On any view of Mr. Scrafton's
various versions of his conversations with him, the Prime Minister had been
made aware of the fact that the video provided no support for the children
overboard claims at the time he ordered its release.
9. On the
Tuesday after the election (which the Government won), the Prime Minister
instructed Mr. Max Moore-Wilton, the Secretary of the Department of Prime
Minister and Cabinet, to arrange for an internal review of the incident, and to
report. One of the terms of reference of
the inquiry, recorded in the Prime Minister's letter to Mr. Moore-Wilton of 13
November 2001, was "to conduct a full examination of ... the nature of
advice provided to Government ministers, and how it was transmitted." The inquiry was conducted by Ms. Jennifer Bryant,
a senior officer of the Department of the Prime Minister and Cabinet; this
became known as "the Bryant Inquiry".
10. Ms. Bryant
conducted extensive interviews with persons involved in the "children
overboard" incident, including Mr. Scrafton. The interview with Mr. Scrafton took place on
14 December 2001. A written record of
interview was then prepared, which Mr. Scrafton signed and which is dated 3
January 2002. In his evidence before this Committee, Mr. Scrafton accepted that
the document was a fair and accurate report of what he had said to Ms. Bryant. The record of interview relevantly contained
the following statements:
Mr Scrafton stated that he continued to be marginally involved
in events around the incident until the week before the election and never had
a sense that the original advice was not
Ms Bryant asked Mr. Scrafton when he became aware there was no
evidence for the claim that children were thrown overboard from SIEV 4.
Mr. Scrafton said that he had never been formally advised that
it wasn't true. However, he noted that
he obviously spent time talking to people from the Department and got the
feeling that the claim may not have been correct.
Mr. Scrafton stated that Mr. Reith and Dr. Nelson were very
confident that the incident had occurred because of the advice they had
received from the CDF and Real Admiral Smith respectively.
Mr. Scrafton said that the day before the [video] tape was
released (i.e. the day of or after the Prime Minister's appearance at the Press
Club where he had agreed to release the tape), Mr. Reith range Mr. Scrafton
asking him to view one cvopy of the tape which was held at Maritime
Headquartetrs. Mr. Scrafton went to look
at the tape, which Commodore Hancock had arranged to be ready. Mr. Scrafton said he considered that the tape
clearly didn't show that the incident had happened. However, neither did it provide conclusive
evidence that the incident didn't happen.
Mr Scrafton stated that the Prime Minister rang him later that
evening. He said he spoke to the Prime
Minister a couple of times that evening about the tape and informed him that it
Scrafton's statement reported in the last quoted paragraph is the only
reference to his conversations with the Prime Minister. He did not suggest that he said anything else
to the Prime Minister. In particular, he
did not suggest that he had told the Prime Minister that the original report
was inaccurate (or words to that effect), he did not suggest he discussed the
still photographs, and he did not suggest that he discussed with the Prime
Minister a report from the Office of National Assessments, which provided some
support for the original reports that children had been thrown overboard, and
to which the Prime Minister had referred at his National Press Club appearance
on 8 November.
12. Mr. Scrafton
also signed answers to four further written questions, also dated 3 January
2002. In answer to Question 4: "Do
you recall being advised at any stage that there were no children among those
in the water on 7 October?" he said "No."
13. At the time
Mr. Scrafton made his statement to the Bryant Inquiry, the fact of his
telephone conversations with the Prime Minister on 7 November was not public
knowledge, and there would have been no particular reason to believe that they would
become public knowledge. Nor was there any reason for him to believe that the
content of his conversations with the Prime Minister would become politically
controversial. The Bryant Inquiry was an internal inquiry, and there was not at
the time, any suggestion that statements made to the inquiry would be publicly
14. The extent of
the Prime Minister's knowledge of doubts about the original reports concerning
the "children overboard" affair had become politically controversial
by the time Parliament resumed in February 2002. On several occasions, set out in paras. 3.19
and 3.20 of the Majority Report, the Prime Minister insisted that at no time
had he been advised by his Department or any other official that the original
reports were wrong, and that he had no reason to believe they were. So far as Mr. Scrafton was concerned, this
was entirely consistent with his statements to the Bryant Inquiry (made 37 days
after the conversations), which involve no suggestion that he told the Prime
Minister any such thing, and which in fact assert that Mr. Scrafton himself
never had a sense that the original advice was not correct. In other words, what the Prime Minister said
on 12 February 2002 was the same as what Mr. Scrafton had said on 14 December
15. The Report of
the Senate Select Committee on a Certain Maritime Incident ("the CMI
Committee") was tabled in October 2002.
That Report identified the fact that Mr. Scrafton had had telephone
conversations with the Prime Minister on the evening of 7 November. Mr. Scrafton did not appear before the CMI
Committee, although it had in evidence before it his statement to the Bryant
Inquiry. The Majority Report of the CMI
Committee concluded that it was unable to make any findings about what Mr
Scrafton may have told the Prime Minister (although the only relevant evidence
before it, Mr. Scrafton's statement to Bryant, was uncontradicted and
16. There the
matter rested until 16 August 2004 when, out of the blue but notably at a time
when speculation was rife that the Prime Minister would shortly call an
election Mr. Scrafton published a letter to The
Australian, concerning his conversations with Mr Howard on 7 November 2001. Mr. Scrafton did not suggest that the letter
was based upon any contemporaneous notes or aides
memoire, nor is there any reason to doubt that the letter was written
immediately prior to the date on which it was published. In other words, the letter is based upon Mr.
Scrafton's unassisted recollection almost three years after the event.
17. The key
paragraphs of the letter are set out in paragraph 3.4 of the Majority
Report. In short, Mr. Scrafton claimed
that, in the course of 3 telephone conversations with the Prime Minister on the
evening of 7 November 2001, he told the Prime Minister (a) that the videotape
was inconclusive; (b) that photographs released in early October were not of
the "children overboard" incident; and (c) that no one in Defence
with whom he dealt believed that any children had been thrown overboard. Paragraph (a) is consistent with what Mr.
Scrafton told the Bryant Inquiry.
Paragraphs (b) and (c) refer to matters of which no mention is made in
Mr. Scrafton's statement to the Bryant Inquiry, and paragraph (c) is in direct
contradiction of his statement to the Bryant Inquiry, appearing in the first
quoted paragraph in paragraph 10 above, as well of his answer to written
question 4 quoted in paragraph 12 above. He also referred to a discussion of an
ONA report on the incident, which is not referred to in his statement to the
Bryant Inquiry either.
18. In response
to Mr. Scrafton's new claims, the Prime Minister issued a statement (set out at
paragraph 3.6 of the Majority Report) which affirmed the statement which he had
made in the House of Representatives on 12 February 2002 (as well as in a
number of media interviews, relevant extracts of which are set out at
paragraphs 3.8 - 3.16 of the Majority Report).
The Prime Minister's statement referred to Mr. Scrafton's evidence to
the Bryant Inquiry.
19. On the basis
of Mr. Scrafton's new claims, on 30 August 2004 (the day after the 2004 Federal
election had been called) the Senate established this Committee. It held one public hearing, on 1 September
2004, at which the principal witness was Mr. Scrafton.
20. In Mr. Scrafton's
opening statement to the Committee, he repeated the claims which he had made in
his 16 August 2004 letter to The
Australian. As had been the case in his letter to The Australian, Mr. Scrafton stated that he had spoken to the Prime
Minister on his mobile phone three times during the course of the evening.
21. Mr. Scrafton
appreciated that his more recent version of the conversation was inconsistent
with his statement to the Bryant Inquiry and, were they to be believed, he must
accept that he had misled that inquiry - both by making a deliberately false
statement (the first paragraph quoted in paragraph 10 above) and also by deliberately
omitting material matters. In particular, he said that his statement to
the Bryant Inquiry that he never had doubts about the accuracy of the initial
report was "not true". He sought to explain this in four ways.
22. In the first
place, Mr. Scrafton claimed that he had, at the time of his interview with Ms.
Bryant, been constrained by a Cabinet directive. He had not seen a copy of the Cabinet
directive, but claimed that he had been advised of it by Dr Allan Hawke (the
Secretary of the Department of Defence), Mr. Matt Brown (the Chief of Staff to
the new Defence Minister, Senator Hill) and Mr. Peter Hendy (the Chief of Staff
to the former Defence Minister, Mr Peter Rieth, who had retired at the
election). However, Mr Scrafton went on
to say that he had not spoken to either Brown or Hendy about the Cabinet
directive before the time of Senate Estimates hearings in February 2002, some 2
months after his spoke to
Bryant. He could not recall when he
spoke to Hawke. He never saw the Cabinet
directive. In the end, Mr. Scrafton's
evidence about his understanding of the Cabinet directive was:
Mr Scrafton - I could not know if I was confused about it or
not. I have never seen it.
Senator BRANDIS - So you are not saying you were confused about
it. You might have been?
Mr. Scrafton - No, I am not sure if I am confused or not. I know that I am not confused about something
I do not know anything about. I never
saw the decision.
Ultimately, Mr. Scrafton
did not dispute that the only relevant Cabinet directive was one dated 11 March 2002, which constrained
participation by staff employed under the Members
of Parliament (Staff) Act ("the MOP(S) Act") in participating in
the CMI Inquiry. At the time Scrafton
spoke to Bryant, there was no operative Cabinet directive at all.
23. The second
ground advanced by Mr. Scrafton to justify his allegedly misleading statements
to the Bryant Inquiry were that since it was a public service inquiry, and he
was at the time of the relevant events a member of Ministerial staff employed
under the MOP(S) Act, the terms of reference of the Inquiry (set out in the
Prime Minister's letter to Mr. Moore-Wilton dated 13 November 2001, the
relevant portions of which are quoted at para. 9 above) did not apply to him. The difficulties with that view are:
The terms of reference of the Bryant Inquiry were not
so limited as Mr. Scrafton insisted. It
was not limited to public servants, and the term of reference which was
relevant to Scrafton (i.e. "the nature of advice provided to Government
ministers, and how it was transmitted") dealt with the very thing with
which Ministerial advisers were most immediately concerned;
Mr. Scrafton, at the time he was interviewed by Ms.
Bryant made no objection on the ground that the terms of reference did not
apply to him and freely participated;
The very matters which Mr. Scrafton lately claimed he
withheld from the Bryant Inquiry (i.e. the additional topics, apart from the
video, first mentioned in his letter to The
Australian) were not of a materially different character to the one topic -
i.e. the contents of the video - which, it is uncontroversial, he did
discuss. If the MOP(S) Act was a proper
excuse or justification for him withholding information about the other topics,
why did he feel unconstrained about discussing the video.
24. Mr. Scrafton
also sought to justify his alleged withholding of relevant information from the
Bryant Inquiry on the ground of confidentiality:
I co operated with Jennfier [Bryant] to the extent that I though
I reasonably could, without revealing any of the things which were critically
damaging or controversial about my time in the minister's office.
Yet the information which Scrafton did reveal to Bryant
could not, on 14 December 2001,
have been thought of as having any greater (or lesser) degree of
confidentiality than the information which he lately claims to have
withheld. Furthermore, the Bryant
Inquiry was an internal inquiry - Scrafton had no reason to believe that
anything he said would be aired in the public arena, so as to expose the
confidence to risk. Finally, as the
Prime Minister's letter to Mr. Moore-Wilton
makes abundantly clear, what the Prime Minister was seeking was "a full examination of ...the nature of
advice provided to Government ministers", there was no rationale or
justification in a witness, freely participating, acting as Mr.
Scrafton claims he acted.
25. Finally, Mr.
Scrafton claimed that he had self-censored his evidence to the Bryant Inquiry
because he was concerned about the possible effect upon his public service
career, particularly in view of what was evidently a bad personal relationship
with Mr. Moore-Wilton. He said
"that was a major consideration". If that were to be accepted, the best that
can be said for Mr. Scrafton is that his lack of candour to the Bryant Inquiry
was self-serving. Yet even that
pusillanimous explanation of his conduct strains credulity. Why would Mr. Scrafton feel afraid to tell
the truth to a confidential internal inquiry, commissioned by the Prime
Minister, when (on his new version of events) he had been prepared to tell the
Prime Minister himself? One thing it is certain would not have came as a
revelation to the Prime Minister, would be for Mr. Scrafton to relate to Ms.
Bryant what he had already told Mr. Howard.
And, as we have pointed out more than once, at the time Mr. Scrafton
spoke to Ms. Bryant, he had no reason to believe that the conversation with the
Prime Minister (which was not publicly known at the time) would become a matter
of political controversy.
26. In the view
of Government Senators, Mr. Scrafton's various attempts to discredit his own evidence to the Bryant Inquiry
are inconsistent with the both the chronological record and the documentary
evidence, implausible, irrational and evasive.
Without setting out the Hansard
extract at length, we draw attention to the examination of Mr. Scrafton between
pp. 45-64, where interested persons can make up their own minds. It is, in our view, the almost inescapable
conclusion that on 14 December 2001, Mr. Scrafton had no reason or motive to
lie to, or be less than candid with, Ms Bryant.
Ironically, Mr. Scrafton's attempts to discredit his own evidence to the
Bryant Inquiry only make sense if one accepts the premise that, at the time he
spoke to her, his conduct was dishonest.
27. Against that
background, Government Senators turn to consider Mr. Scrafton's evidence to
this Inquiry concerning his telephone conversations with the Prime
considerable amount of attention was devoted at the hearing of this Committee
to the question of how many telephone conversations took place. In his statement to the Bryant Inquiry, Mr.
Scrafton had said there were "a couple". In his letter to The Australian, he stated without qualification that there were
three. In his opening statement to this
Inquiry, he stated:
I spoke to the Prime Minister by mobile phone on a number of
occasions. My recollection is that it
was three times, but it is possible that I have conflated the number of issues
with the number of calls.
This is itself curious, since Mr. Scrafton then identifies four issues about which he claims to
have spoken with the Prime Minister. But
a fair reading of Mr. Scrafton's
evidence suggests that he was trying to say that to the best of his
recollection there were three conversations, but he accepted that there might
have been only two. He does not suggest
that there were four.
29. The number of
telephone conversations is not an important issue in itself. But it does have a probative significance in
two ways. First, the reliability of Mr.
Scrafton's evidence depends upon the clarity of his recollection of the (now
distant) events of 7 November 2001, and inconsistent or uncertain evidence
about the telephone calls themselves is some indication (although not a
conclusive one) of the reliability of his memory about the event overall. Secondly, and more importantly, the number of
telephone conversations is important in the context of the sequence of the topics discussed, for the reasons which will be
Scrafton's evidence before this Inquiry about the telephone conversations
occurs at four points: in his opening statement and in his answers to questions
from Senators Faulkner, Brandis and Ferguson.
Rather than paraphrase, we set out the relevant evidence.
31. In his
opening statement, Mr. Scrafton described the conversations in these terms:
On my way to dinner that evening I detoured to Maritime
Headquarters and watched the tape in the company of Commodore Max Hancock,
Chief of Staff to the Maritime Commander. After watching the relevant portion
of the tape-about 15 minutes-twice, I returned the minister’s call and advised
him that it was at best inconclusive. He said that he had to call the Prime
Minister and would get back to me. Shortly after, he rang again and said that
he had given my mobile number to the Prime Minister and that I could expect a
call later in the evening. I continued
on to dinner. Later in the evening of 7 November 2001 I spoke to the Prime
Minister by mobile phone on a number of occasions. My recollection is that it
was three times, but it is possible that I have conflated the number of issues
discussed with the number of calls. In the course of those calls I recounted to
- that the tape was at best inconclusive as to
whether there were any children in the water but certainly did not support the
proposition that the event had occurred;
- that the photographs that had been released in
early October were definitely of the sinking of the refugee boat on 8 October
and not of any children being thrown into the water; and
- that no-one in Defence that I had dealt with on
the matter still believed that any children were thrown overboard.
During the last conversation the Prime Minister asked me how it
was that he had a report from the Office of National Assessments confirming the ‘children overboard’ incident. I replied that I had gained the impression that
the report had as its source the public statements of the minister for
immigration. When queried by him as to how this could be, I suggested that the
question was best directed to Kim Jones, then Director-General of ONA.
32. In response
to questions from Senator Faulkner,
evidence was as follows:
Mr Scrafton-Peter Reith rang me, saying he had been talking to
the Prime Minister, there was some concern about the article that had appeared
in the Australian that morning and
that they wanted somebody they could trust to go along and have a look at the
tape, which was at Maritime Headquarters-which was the first time I became
aware that the tape was actually in Maritime Headquarters.
CHAIR-Could I interrupt again for a moment. I assume you were
chosen because you were the only ministerial staffer in Sydney.
Mr Scrafton-I think that is correct-no other reason. I made some
phone calls and arranged to go to Maritime Headquarters to view the tape. I
took my dinner companion with me. She sat in the outer office while I went in
with Commodore Max Hancock, Chief of Staff. Max explained to me that the tape
was some 24 or 30 hours long-quite a long tape but they had focused it down to
the relevant bits, about 15 or 17 minutes worth of tape. We sat and watched
that twice, looking at what it showed. It showed a man with a child on the top
of the boat, but you could not see the far side. You could see some heads
bobbing in the water. But it certainly did not indicate anything about anybody
being thrown in. After that, I rang Minister Reith back and explained to him my
interpretation of the tape, which was that it was at best inconclusive and
certainly did not support the proposition that children had been thrown overboard. He said to me he had to call the
Prime Minister back on this and he would get back to me. I hung around Maritime
Headquarters. Twenty minutes or so later he rang me back and said that he had
given my mobile number to the Prime Minister and the Prime Minister would call
me about the tape-he wanted to hear first hand. I asked him whether he knew
what sort of time frame that would occur in. He said, ‘No.’ I said, ‘I’m going
out to dinner.’ He said, ‘Well, go; the Prime Minister will ring you at some
point.’ I was sittingdown to entree when the Prime Minister rang.
Senator FAULKNER-We will not ask you what the menu was, Mr Scrafton.
Mr Scrafton-The food was cold by the time I got to it. The Prime
Minister rang. I went through the issue of the video with him-what was on it.
That was all I was asked to do. He rang me back later with some clarifying
questions. My recollection is that I at that point explained to him that not
only was the tape inconclusive but nobody I dealt with in Defence believed that
the event had taken place-and that the photographs represented the sinking the
day after the supposed event. My recollection at that point is that he rang me
back again afterwards specifically to ask me about the ONA report that he had.
I said that, from my discussions with people in Defence, in Strategic Command,
the impression was going around that this must have been based on the
minister’s statements rather than on intelligence sources. He said, ‘How could
that possibly be?’ I suggested he talk to Kim
Jones about it, and that was the end of our
Senator FAULKNER-So the Prime Minister rang?
Mr Scrafton-The Prime Minister rang me. He started out by
saying, ‘John Howard here. I have with me,’-and he ran through a series of
names. I did not pick up all of them, but certainly Arthur Sinodinos, Tony Nutt
and O’Leary were people that-I knew who they were.
Senator FAULKNER-Did you think they were on a speakerphone or
did you think it was just a-
Mr Scrafton-No. The reason I did not think we were on a
speakerphone was because the Prime Minister repeated everything I said during
that first phone call. I would say, ‘I have just viewed the video and I looked
at about 15 minutes of tape,’ and he would then repeat that out loud. I could
hear him doing that. I had the impression that he was doing that for the
benefit of whoever was in the room.
Senator FAULKNER-Did you feel that he repeated it accurately and
Mr Scafton-Yes. He repeated verbatim what I was saying. I will
say that in subsequent conversations he did not do that. He just spoke directly
and conversationally to me.
Senator FAULKNER-Could you provide to the committee as much
detail as you can about he contents of that first conversation?
Mr Scrafton-I think that I have done this in my statement.
Basically I went through what I have said already: that I had looked at the
tape; that it showed black, bobbing items on the other side of the boat that
looked like they could have been people in the water; that it showed a man and
a child on the roof of the boat but that he certainly was not in my view in any
way threatening in his behaviour to the child; and that you could not from what
I had seen of the video draw any conclusion that the event had happened. At
best you could say it was inconclusive. He asked a couple of clarifying
questions along the lines of: how long was the whole tape? I said that it was
very long and that is why we just looked at an excerpt from it, but Maritime
Command had sorted out which was the right bit. Then he hung up-he said, ‘I’ll
get back to you,’ and then he hung up.
Senator FAULKNER-Were you able to recall any other clarifying
Mr Scrafton-There may have been, but I cannot recall.
Senator FAULKNER-Are you able to indicate whether you informed
the Prime Minister that you viewed this particular tape in the company of
Mr Scrafton-I do not think I said that.
Senator FAULKNER-After providing that information to the Prime
Minister, the Prime Minister said he would get back to you?
Senator FAULKNER-Can you be as precise as you can about when he
got back to you?
Mr Scrafton-Probably about 15 to 20 minutes later. He rang me
back and asked about the photographs. I had eaten my cold entree and was onto
my main course.
Senator FAULKNER-As I said, I am not going to ask you about the
menu. You had alreadytold Mr Jordana, though, that the photographs did not
represent the incident at all.
Mr Scrafton-That is correct.
Senator FAULKNER-Did you tell Mr Howard that you had already
told his senior staffer that the photographs did not represent the incident at
Mr Scrafton-No. I was dealing with the Prime Minister over a
mobile phone in a restaurant. I did not engage him on a lot of detail.
Senator FAULKNER-Quite seriously, Mr Scrafton, I think we all
understand the power relationships in these circumstances. Did you inform the
Prime Minister in similar terms about the photographs, as you had informed his
senior adviser a day to two earlier?
Senator FAULKNER-Was your advice to the Prime Minister categorical?
Senator BRANDIS-What did you say? What were your words? Do not
tell us what conclusion you thought had been achieved; just tell us as well as
you can remember what you said. We understand that you cannot give us a
verbatim account but as well as you can remember tell us the substance and
effect of the words you used.
Mr Scrafton-As well as I can remember, I said that the
photographs actually represented the saving of the people in the water from the
sinking of the boat the day after the 7th. I said something to that effect. I
specifically referred to the fact that it was of the sinking of the boat and
that it was of the rescuing of the people from the water.
Senator BRANDIS-Is that it?
Senator BRANDIS-Thank you.
Senator FAULKNER-So that advice was clear and categorical?
Senator FAULKNER-What else did he ask you about, or was this
conversation effectively limited to the photographs?
Mr Scrafton-It appeared to me from the Prime Minister’s
responses that he was surprised at what I was telling him. At that point, with
my heart in my mouth, I said, ‘And nobody whom I deal with in Defence actually
believes that the event took place, Prime Minister.’ It was because of the way
the Prime Minister had responded that I felt I should add that comment.
Senator FAULKNER-Can you explain that a little more?
Mr Scrafton-The Prime Minister genuinely sounded surprised when
I said to him that the photographs were not of the event that he thought they
Senator BARTLETT-So you were surprised that he was surprised.
Mr Scrafton-Yes, in a sense. It was not the reaction that I had
expected. But he had opened the discussion on the photographs and asked me, so
I then volunteered the further information that nobody in Defence who I had
dealt with considered the event had actually taken place.
Senator FAULKNER-This conversation relates to the photographs,
which you indicated were categorically a misrepresentation of the event.
Mr Scrafton-That is correct.
Senator FAULKNER-You went on to say that nobody in Defence
actually believed the incident-that is, children being thrown overboard-took
place. Are you able to say whether anything else occurred in that conversation?
Mr Scrafton-No. Again, at this point my recollection and the Prime
Minister’s vary, although I do not know what the Prime Minister thinks the
second conversation was about. He has
said that there were two conversations, but he has not said what he thought the
second conversation might have been about. Our recollections on the number of
phone calls diverge at this point. Again, my recollection is that he ended the
phone call at that point and then a little while later, about the same sort of
time, I suppose-15 or 20 minutes-he rang me back concerning the ONA report, asking
me how it was that ONA was reporting on an issue as factual when I was telling
him that it had not occurred.
Senator FAULKNER-Given your much interrupted dinner, have you
checked privately or personally with your dinner companion of the evening as to
whether your dinner companion can recall the number of phone conversations?
Mr Scrafton-No, I have not checked-for two reasons. One is that
the two very expensive bottles of wine we had were both drunk mostly by her,
getting angry while I was away from the table talking to the Prime Minister.
Senator FAULKNER-That is a real-world note for our committee.
Mr Scrafton-She probably has less recollection than I do of what
happened that night.
Senator FAULKNER-I assume you did not take these calls at the
dinner table itself.
Mr Scrafton-No, I did not. I got up and moved away from the
table, down to the far end of the restaurant.
Senator FAULKNER-I think everyone would accept that that was
appropriate. Let us go then, if we can, to what you believe was the final phone
call, certainly about the other outstanding issue, which is the ONA report. Can
you outline to the committee, please, what the purport of the Prime Minister’s
question was in relation to that particular report?
Mr Scrafton-The Prime Minister rang me back and seemed quite
genuinely concerned or perturbed that he did have the ONA report and that the
report might not have been accurate if what I had told him was true. He said, ‘How could this be that I would have this report and have you telling me the opposite?’ I suggested to him that it was an inappropriate question to ask me and he
should refer it to Kim Jones,
Director-General of ONA-at which point the conversation again ended.
33. In response
to questions from Government Senators, Mr.
Scrafton's evidence was:
Senator BRANDIS-You can recall you had three conversations?
Senator BRANDIS-Are you sure about that?
Senator BRANDIS-Okay. You used the expression ‘a couple of
times’ to Jennifer Bryant, though now, three years later, you are absolutely
sure there were three. How do you explain that discrepancy?
am not going to keep going around this.
Mr Scrafton-I will go back to the issue that I was in an
incredibly stressful situation of talking to the Prime Minister about things
that the Prime Minister, to all of my understanding, should have known but
seemed not to have known. I was, in a sense presumptuously, correcting the
record for him. Do I remember what I had for entree that night? No, I do not.
Senator BRANDIS-Yes, you do. You said it was a cold entree. You
remember that much about it.
Mr Scrafton-I said it was cold but I do not know what it was. Do
I remember what the wine was? No, I do not. I cannot even remember the name of
the restaurant but I know that it was in Leichhardt.
Senator BRANDIS-You need not go into that. I am interested in
Mr Scrafton-I think this is important. I am trying to explain to
you what I remember.
Senator BRANDIS-If you think it is important, go ahead.
Mr Scrafton-Okay. I am trying to explain to you what I remember.
The very salient issue that is burnt on my mind from that evening is what I
said to the Prime Minister. There was more than one phone call. My recollection
is that there were three. I am not prepared to go to the grave fighting over
that but I have no doubt whatsoever as to what I said.
Senator BRANDIS-In answers to some questions from Senator
Faulkner this morning, you gave evidence that, in the course of the sequence of
telephone conversations, you really discussed four things. You discussed the
video, you say you discussed the photographs, you say you made the remark that
nobody in Defence whom you dealt with believed that children had been thrown
overboard and you say you discussed the ONA report.
Mr Scrafton-That is correct.
Senator BRANDIS-Is that right?
Mr Scrafton-That is correct.
Senator BRANDIS-And your evidence to Senator Faulkner was that
it was in the first telephone call that you discussed the video.
Mr Scrafton-That is correct.
Senator BRANDIS-You remember that?
Senator BRANDIS-And your evidence to Senator Faulkner was as
well that in the course of the first telephone call-that is, the telephone call
during which you discussed the video-the Prime Minister adopted the practice of
repeating what you were saying to him, so that you surmise his advisers in the
room with him would have heard his reiteration of what you had just said to
him. Is that correct?
Mr Scrafton-That was my surmise, yes.
Senator BRANDIS-And you also said to Senator Faulkner that, to
the best of your recollection, the Prime Minister’s reiteration of what you
said to him was accurate?
Mr Scrafton-That is correct.
Senator BRANDIS-So we can say, then, that the four advisers in
the room heard via the Prime Minister’s reiteration of what you said to him
everything that you said to he Prime Minister.
Mr Scrafton-In the first conversation.
the first conversation.
Senator BRANDIS-In each case the conversations were
conversations initiated by the Prime Minister-you received his calls?
Mr Scrafton-That is correct.
Senator BRANDIS-Are you quite certain of that?
Mr Scrafton-Yes. I did not have his number.
Senator BRANDIS-Remind us again, please, how long the first
conversation-that is, the one that was limited to the video evidence-took.
few minutes. It is difficult to say. Probably up to five minutes. I cannot
remember the exact period.
Senator BRANDIS-I am not asking you to remember the exact
was long enough for me to describe to him pretty much what I have said to the
committee about what was on the video.
understand that. That was over the cold entree. ‘Then 15 or 20 minutes later he
rang me back and asked about the photographs. I had eaten my cold entree and
was on to my main course.’ I am reading from your evidence this morning. You
are quite sure about that?
could not have been significantly longer than that estimate of 15 to 20
significantly longer, I wouldn’t think-about that sort of time frame.
not longer than the time it takes, at a reasonable restaurant, between an
entree and a main course being served.
Mr Scrafton-No, I assume so.
evidence has been that in the second conversation he did not repeat the custom
that he had adopted in the first conversation of reiterating your remarks so
that if there were people with him your remarks could have been heard by them
via his reiteration. Is that correct?
Mr Scrafton-I am not quite sure what you said then-but, no, he
did not reiterate what I said.
it strike you at the time as strange that the first time he had adopted that
custom and the second time he had not?
Mr Scrafton-I am not sure I reflected on it at the time but,
thinking about it subsequently, in the first instance he was simply receiving
information from me and in the second instance he was interrogating me over
said he raised the subject of the photographs?
am not going to ask you to recite again everything you have told Senator
Faulkner this morning, because we have got
it on the record. This was also the conversation when, according to your
version of these events, you stated to the Prime Minister words to the effect: ‘Everybody I deal with in Defence believes that no children were overboard.’
he sounded surprised, you said, I think.
was my impression, yes.
there were two topics of the second conversation, on your version of events.
No. 1 was him asking you a series of questions about the photographs, which you
responded to fully?
how many questions did he ask you, roughly?
Mr Scrafton-Two or three, I suppose.
may as well tell us again what they were.
Mr Scrafton-Again, I cannot remember in full detail.
Senator BRANDIS-I am not asking you for that. We know you cannot
give us them verbatim.
Mr Scrafton-He inquired something along the lines of: what about
the photographs then? I explained to him in an exchange that the photographs
were of the sinking of the boat. Then I offered information to him that the
event had not happened, based on my discussions with people in Defence.
did he say?
he would get back to me. He sounded surprised. He said, ‘Is that what you are
saying? Then we ended the conversation.
Senator BRANDIS-Surely, before you ended the conversation it
must follow from what you have already told us that you then made the
observation that nobody in Defence believed-
is what I just said, Senator.
Senator BRANDIS-I thought you were still talking about the
Mr Scrafton-No, I said after we had discussed the photographs I
led into the discussion and I offered the view to the Prime Minister off my own
bat that nobody I dealt with in Defence at that stage believed that the event
your version of events is to be believed, it was presumably the most
challenging thing you said to the Prime Minister from your point of view?
was the most difficult thing to say, yes.
right. Was there any reaction from him? When you say he seemed ‘surprised’, how
was that apparent surprise manifested?
the lines of: so what are you telling me? It was a question along those lines.
did you say? Did you repeat the statement?
Mr Scrafton-I confirmed for him what I had just said.
substantially the same words?
substantially the same terms.
Senator BRANDIS-Okay. So when you had finished talking about the
photographs you initiated the remark about nobody believing that children had
been thrown into the water. That was not a response to a question?
nailed your courage to the sticking place and you said to the Prime Minister
words to the effect that you have just recited?
he said, according to you, ‘What are you telling me?’ and you said those words
like that, yes.
did he then say when you had said them a second time?
conversation ended. I think he said something along the lines of: ‘I will have
to get back to you’ or ‘I will deal with this’-I cannot remember exactly.
terminated the conversation?
recollection is that he terminated the conversation.
Senator BRANDIS-I should ask that about the first conversation
too. Did he terminate the first conversation?
hangs up on the Prime Minister, or at least I do not.
are quite sure? I want to give you every opportunity to-
Mr Scrafton-Senator, I have signed a statutory declaration. I
have taken a polygraph. This is exactly how I recollect what happened.
Senator BRANDIS-Then there was a third conversation when he rang
am prepared to entertain the possibility that this continued on from that
conversation. I have said that in my opening statement. I was not keeping a
record of how many times I spoke to him at this stage. This was an enormous
thing for me to have done personally in the circumstances.
me remind you of what your evidence was this morning. You said:
Again, my recollection is that he
ended the phone call-
this is referring to the second conversation-
at that point and then a little while
later, about the same sort of time, I suppose-15 or 20 minutes-he rang me back
concerning the ONA report, asking me how it was that ONA was reporting on an
issue as factual when I was telling him that it had not occurred.
Then Senator Faulkner asked you:
Given your much interrupted dinner,
have you checked privately or personally with your dinner companion of the
evening as to whether your dinner companion can recall the number of phone
No, I have not checked-for two
reasons. One is that the two very expensive bottles of wine we had were both
drunk mostly by her, getting angry while I was away from the table talking to
the Prime Minister.
So you stood up and walked away from the table?
Mr Scrafton-I have already said that. I walked away from the
is the position you adopt in relation to all three of the conversations?
is my recollection.
Senator FAULKNER-I just want to be clear with Mr Scrafton. My
understanding is that you have given evidence that you believe there were three
phone conversations with the Prime Minister, but you do accept there might have
been two. Is that basically it in a nutshell?
is correct, yes.
am putting it in layman’s language; of course, I am not an eminent lawyer like Senator
Brandis. You think there were three
telephone conversations but you accept that there might have been two?
Mr Scrafton-I am prepared to admit that it was a very stressful
situation so that is why I am trying-
Senator FAULKNER-I understand. I am just trying to cut to the
could have been two. I recall three.
Senator FAULKNER-Thank you.
Senator BRANDIS-I do not think that Senator Faulkner and I are
trying to get to any different point here. I understand you to be saying that,
to the best of your recollection, there were three, but you allow for the
possibility that there may have been two.
best evidence, your most likely outcome, is that there were three.
Senator BRANDIS-Mr Scrafton, if you were wrong about it being
three, not two, then I assume your evidence is that the last of the four topics
discussed between you-that is, the question of the ONA report-was in the second
conversation as well, and that is what you meant in your statement this morning
when you said, ‘I may have been conflating the conversations’?
Senator BRANDIS-So there are two possibilities: the one you
think is most likely is that in conversation 2 you talk about the photographs
and you state and then repeat your view about children not being thrown
overboard, and in the third conversation you talk about the ONA report.
is what you think happened, but you allow for the possibility that all three of
those topics may have been discussed in the second conversation.
is putting it fairly?
Senator FERGUSON-Mr Scrafton, right from early this morning we
have been discussing the facts of recollections of events that happened three
years ago. The question that has been publicly debated is your recollections of
events as opposed to those of the Prime Minister. The Prime Minister said there
were two telephone conversations and you insisted from the start-in your public
statements and in your letter-that there were three.
Mr Scrafton-I would like to correct that. My statutory
declaration says ‘several’, but I was not certain about the number.
Senator FERGUSON-You said today that there were three.
opening statement says that I was prepared to accept-
Senator FERGUSON-In your interview with Mark
Colvin you said, ‘I clearly recollect three
CHAIR-That is a separate question. Why don’t you ask that
Senator FERGUSON-You clearly said to him, ‘I clearly recollect
three phone calls.’
Senator FERGUSON-The public debate that has been going on is
that you said there were three phone calls and the Prime Minister said there
public debate is about what I said to the Prime Minister.
Senator FERGUSON-No, the public debate has also been over the
number of phone calls and I think anybody who has read any newspapers would say
that that is the fact. In this case, the Prime Minister’s recollection of two
phone calls has been proved correct and your ‘clear recollection’, as you said
to Mark Colvin,
of three phone calls, has been proved incorrect.
Senator FERGUSON-I will accept that it is asserted. The other
issue is the length of the first phone call. You said that everything that you
were saying to the Prime Minister was being relayed to the other people in the
room. You asserted that this morning. That phone call was some nine minutes.
The four people in that room have all corroborated by public statement and affirmation
that the Prime Minister only discussed the video in that first phone call. You
have no corroboration for anything that you have said publicly. There is no
written record; there is no note. There is no way that anybody can corroborate
what you claim to have said. Yet, in one 51-second phone call, you must have
covered all of those other things that you said the Prime Minister talked to
you about-photographs, ONA and all of the other matters. I would leave it to
the Australian public to judge whether or not the Prime Minister’s recollection
in the second instance is far more believable than yours. If he has corroboration,
don’t you think that that makes it more believable?
is a strange question to ask me.
34. We have taken
the trouble of setting out Mr. Scrafton's
evidence on the critical conversations in its entirety, so that it cannot be said
that our conclusions about the reliability of his evidence are based upon
selective quotation. What he says speaks
for itself, and we have given it in full.
35. On any fair
reading of that evidence, the following conclusions emerge:
on the issue of the number of telephone conversations, Mr. Scrafton's position varies from one of stubborn
insistence that he clearly remembers three ("absolutely"), to
equivocation on the issue of whether there were two conversations or three, to
a final position that he recalls three, but it is possible his memory may have
been defective and that there were only two;
on the issue of the topics
discussed, Mr. Scrafton insists that there were four (the video, the
photographs, the alleged inaccuracy of the children overboard claims, and the
on the important issue of the sequence in which the topics were discussed, Mr. Scrafton was also
adamant that the video was discussed
first (in the first conversation), the photographs and the inaccuracy of
the children overboard claim were discussed next (in the second conversation),
and the ONA report was discussed last (in the third conversation). Matching the sequence of topics to the
number of conversations, Mr. Scrafton
also agreed that if he was wrong about the number
of conversations, then the second, third and fourth topics were all discussed
in the second conversation.
36. The one point
of common ground which emerges between Mr.
Scrafton and the Prime Minister is that the only topic of the first conversation was the
video. It was, for a reason which Mr.
Scrafton found unable to explain, only in
the course of that conversation that the Prime Minister repeated for the
benefit of those with him in the room (Messrs.
McClintock, Sinodinos, Nutt and O'Leary) what Mr. Scrafton was saying to him; he
does not allege that at any point the Prime Minister's repetition of those
matters was either inaccurate or incomplete.
That is also corroborated by the statements of those four gentlemen,
which are Appendix 4 to the Majority Report. On any view, then, the first
conversation initiated by the Prime Minister to Mr.
Scrafton concerned only the video. What Mr.
Scrafton has said about that conversation to
this Committee is consistent with what he said about it to Ms.
37. During the
course of the hearing, after the evidence set out above had been given, Senator Brandis
produced the telephone records of all telephone land lines and mobile
telephones at The Lodge on the evening on 7 November. Those records indicate that only two
telephone calls were placed to Mr. Scrafton's
mobile telephone number from any of those telephones. (The calls were in fact placed from the Prime
Minister's personal mobile phone.)
38. The records
demonstrated that the Prime Minister's first call to Mr.
Scrafton was at 8.41 p.m., and lasted for nine minutes and 36
seconds. That, on all views of the
evidence, was the telephone conversation in which the only topic covered was
the video. Mr.
Scrafton agreed that although he had no
direct recollection of the time of that conversation, "It is not
impossible that it was 8.41." 
39. The records
also demonstrated that the second telephone call was initiated at 10.12 p.m., and that it lasted for only 51
40. By this time,
had conceded that there were only two telephone calls:
"I think I have accepted that there were probably two phone
He also conceded that all topics other than the video, which
he claimed to have discussed with the Prime Minister subsequent to the first
telephone call, could not have been dealt with in 51 seconds:
call lasted for 51 seconds, Mr Scrafton.
That is what the record says, and we have offered to show the originals to
other senators. If the record is accurate ... and what I have read to you from
the record is true, those three topics, as you have discussed them, could not
possibly have been discussed in 51 seconds, could they?
Mr Scrafton-I suspect you are right, and I would suspect-
time for pleasantries, for somebody to get on the line-
were no pleasantries in talking to the Prime Minister on those sorts of issues.
Scrafton then sought to suggest that the
other topics were covered in the first telephone conversation, after all. Yet
if (as all agree) the first conversation dealt only with the video, this
position is unsustainable. It is plainly inconsistent with Mr
Scrafton's own unequivocal and emphatic
evidence that the first conversation dealt only with the video. It is also contradicted by all four of the
persons present when the Prime Minister made the first call, and repeated aloud
what Mr. Scrafton
had told him. Mr. Scrafton's attempt to
retrieve his position appears from the following exchange:
that to be true, the second call was 51 seconds: how can you explain your
evidence that those three topics were all covered in that time?
can only assume that I am not only mistaken about the number of phone calls but
what order they were discussed in. It certainly did not take me 10 minutes to
tell the Prime Minister about the video. I am not sure what the Prime Minister
thinks he rang me back for 51 seconds on afterwards. What I am clear about is
that, in the course of those phone calls, the four subjects were discussed.
Senator BRANDIS-Mr Scrafton, in the first phone call, unlike the
subsequent phone call, you told Senator Faulkner this morning and you
reaffirmed to me this afternoon that the Prime Minister adopted the custom of
repeating out loud what you were saying to him, and he said that about the
about the other topics. Can I tell you, these matters have been put on the
public record, so I am sure you are aware of them.
Mr Scrafton-No, I have said that on several occasions.
Senator BRANDIS-I am sure you are aware that the four people who
say they were in the room with the Prime Minister that evening say they do
recall the Prime Minister conversing with you about the video but not about other
matters. The Prime Minister himself has said that he conversed with you about
the video but not about other matters. So, in the first phone call-the
nine-minute-36-second phone call, the only one in which the advisers would have
been able to hear what you were saying to the Prime Minister by medium of
him-the only topic discussed was the video. That must follow.
was my recollection.
that is also your recollection, both this morning and this afternoon.
can it be true that the other three topics were discussed in the second,
51-second phone call?
Mr Scrafton-I have been prepared all along to acknowledge that
perhaps I had the sequence or the number of phone calls incorrect. What I am
very clear about is what I discussed with the Prime Minister. It may have been
the case that I discussed the first topics with him in the first phone call,
and the last one was the one when he rang me on the ONA report.
you are changing your story again, Mr Scrafton.
42. Further on
the subject of Mr. Scrafton's credibility, it should be noted that he claimed
that he had left his dining companion at the table for prolonged periods of
time during each of the conversations - for so long, in fact, that "the
two very expensive bottles of wine we had were both drunk mostly by her,
getting angry while I was away from the table talking to the Prime
Minister." Since the total length
of both conversations was ten minutes twenty-seven seconds, Mr.
Scrafton's evidence on this point might be
best described as merely corroborative detail, intended to give artistic
verisimilitude to an otherwise bald and unconvincing narrative.
43. The campaign
begun by Mr. Scrafton to claim that the Prime Minister had misled the public
over the "children ovderboard" affair, which had begun with his
letter to The Australian on 16
August, appropriately ended with another letter to that newspaper on 4
September, advancing a yet further version of events. This was the fourth.
44. For completeness,
the four different versions of these events given by Mr.
his evidence to the Bryant Inquiry on 14 December 2001;
his letter to The
Australian on 16 August 2004;
his revision of his version of events before the Senate
inquiry when confronted with the telephone records; and
his further revision in his letter to The Weekend Australian on 4 September 2004.
Senators do not find it necessary to express a conclusion as to whether Mr.
Scrafton was deliberately lying to the Senate Inquiry (although they make the
point that, since Mr. Scrafton himself told the Senate inquiry that his
evidence to the Bryant Inquiry was "not true", he is, by his own account of himself, a man
who is prepared to lie about, and had already lied about, these events). They
merely point out the variety of his inconsistent versions of these events; the
fact that apart from his statement to the Bryant Inquiry, none of his
recollections were made when they were fresh in his mind or are otherwise
supported by contemporaneous evidence; his inexplicable silence for almost
three years - long after he had left the Commonwealth Public Service - before
he suddenly made the allegations at what can only be regarded as a politically
strategic time; and the most important fact that his recent allegations simply
cannot possibly be true in light of the objective evidence of the telephone
disregarding all of the factors recited in the last paragraph, the evidence of
any witness, given when events are fresh in his mind and he has no reason to
reconstruct or reinvent, would invariably be preferred by any court or
fact-finding tribunal, to a different version offered for the first time three
years later, in the absence of the emergence of any new fact which might have
triggered a bona fide change in his
memory. The fact that Mr.
Scrafton is, by his own admission, a person
who was prepared to lie about these matters can only make the credibility of
his recently-made allegations even more doubtful.
47. In view of
all of those circumstances, the "finding" of the majority report that
is a credible witness is not just counterintuitive; it is virtually impossible
to sustain on a fair reading of the evidence.
48. The entire
weight of that evidence points the other way:
that Mr. Scrafton's
original statement to Ms. Bryant's
Inquiry was the truth. That statement
was completely consistent with what the Prime Minister told Parliament on 12
February 2004, and what he said again during his press conference late morning
on 1 September, before the cross-examination of Scrafton had taken place:
said you had two conversations with Mike Scrafton.
PRIME MINISTER: Yes, that
is my recollection.
was the second one that day? Why did you
feel you needed to ring him back?
PRIME MINISTER: Why did I
feel ... well, look, Alex, I had two conversations with him to my recollection
and you're asking me, I mean, my recollection is, I had a reasonably lengthy
one and then I had a very short one. As
for the second one, it was probably to tell him to put the video out.
That explanation is not only corroborated by the telephone
records, but by Mr. Scrafton's
original version of the events.