Last night in the Senate, John Faulkner delivered the second of three speeches on the People Smuggling Disruption Program in Indonesia. [Read his first speech here]
It is interesting to read this speech in the light of Senator Faulkner's role in the CMI Committee. Does this speech perhaps give an indication of some of the content we can expect in the forthcoming Committee Report that was due to be tabled today but which has been again delayed until 23 October?
This is the second of three speeches I will be making about the government's people-smuggling disruption program in Indonesia. The AFP is not the only agency to be involved in disruption activities.
I have been trying to establish what role DFAT, ASIS, Defence and the immigration department play in the more active element of disruption.
So far, most of the evidence about the more active element of disruption has come from the AFP. However, some evidence the AFP gave to the Senate committee and the Senate estimates hearings was contradictory and misleading.
Commissioner Keelty told the CMI committee that the AFP have no police powers beyond Australia's borders. Furthermore, the AFP could not direct Indonesian police or other Indonesian authorities to disrupt people smugglers and asylum seekers. They could only seek their assistance and cooperation. But in the case of Kevin Enniss this is clearly not what is occurring in Indonesia. The AFP have admitted that Kevin Enniss, in conjunction with the Indonesian police agency POLDA, was engaged in strategies designed to interdict asylum seekers where possible before they could depart for Australia. This appears to be exactly what the policy of disruption sets out to do.
We know that the AFP works closely with the Indonesian National Police, Indonesian Immigration, and the Indonesian navy, army and marines when it comes to pursuing organised people- smuggling activities. But it is still unclear who else is involved in disruption and whether any other Australians are also involved.
The AFP has said that no payment is made to the Indonesian authorities for carrying out disruption activities. As Commissioner Keelty told the CMI committee: We do not ask them to carry out a task and then pay for them to do the task. There is a level of cooperation that we have with them under the protocol ...
He also said: ... the AFP paid no moneys to any government agency in Indonesia to have them disrupt the activities of people- smuggling organisers.
However, Commissioner Keelty did confirm that the AFP provides equipment, training and costs in travel to those Indonesian authorities involved in disruption activities. For instance, the AFP's Law Enforcement Cooperation Program provides training and equipment to the Indonesian National Police. Five teams of the Indonesian National Police have been established through this program and are directly involved in disruption activities.
Commissioner Keelty also told the CMI committee that AFP informants were only paid to provide information about the location of passengers and the activities of organisers. He said 'no money has been paid to anybody specifically empowered to intervene' in people-smuggling. But as a result of an investiga- tion into the activities of Enniss, the AFP confirmed that they were aware Enniss purported to be a people smuggler in Indonesia. They also admitted to knowing that Enniss had taken money from asylum seekers on at least one occasion.
According to the Sunday program, Kevin Enniss has also confessed to paying Indonesians to sabotage vessels. I ask the question: are these activities-sinking boats, taking asylum seekers' money and purporting to be a people smuggler-illegal?
Commissioner Keelty has told the CMI committee that it has not come to the AFP's attention that they were doing anything unlawful or inhumane. But we know that both the AFP'S investigation into Kevin Enniss-which we have only seen a summary of-and the Sunday program's investigation have clearly indicated that at least one Australian was involved in disruption activities of a highly dubious and probably criminal nature.
Now that these admissions have been made by the AFP, there is only silence. Since the Sunday program revealed that Kevin Enniss may have deliberately sunk asylum seekers' vessels, there has been no response from the AFP, any other government agency or the government itself.
Legal advice given to the Sunday program indicated that the behaviour alleged of Mr Enniss is probably criminal, and that the AFP has probably also acted outside the law. Highly respected legal expert Professor Mark Findlay said of Mr Enniss on Channel Nine's Sunday program: Well, under Australian law if he's a people smuggler it's a crime. If he's not a people-smuggler but purporting to be one, that's a misrepresentation. And to obtain a financial advantage as a consequence, that's a crime-you can't have it both ways.
Professor Findlay also rejected the AFP's claim to the Senate committee that the AFP and Enniss are protected by controlled operations legislation, which means that there are grounds to suspect that the AFP itself may have been involved in, or may have authorised or condoned, activities outside of the law or even in breach of Australian law.
In this regard it should be noted that amendments extending the controlled operations provisions of the Crimes Act 1914 to cover people-smuggling offences only entered into effect on 1 October 2001.
Beyond the activities of Kevin Enniss, I believe there are se- rious questions about the disruption program and the behaviour of certain Australian agencies in Indonesia.
Commissioner Keelty claimed that he was fully accountable for the disruption program, but it appears that no procedures have been put in place to ensure nothing untoward or illegal is occurring or has occurred. There seem to be no accountability mechanisms in place at all, with most of this activity taking place outside of Australian legal jurisdiction.
I asked Commissioner Keelty at the CMI committee hearing: What accountability, controls and constraints are on those Indonesian agencies that are conducting this activity? How are you satisfied that those activities are conducted in an appropriate way? Commissioner Keelty answered: That is not for me to say. I do not have any power over the Indonesian authorities.
Commissioner Keelty said: The AFP, in tasking the INP to do anything that would disrupt the movement of people smugglers, has never asked-nor would it ask-them to do anything illegal. If we became aware that they were doing something illegal or something that was inhumane, it would be brought to our notice and we would ask that they not do it that way. The difficulty is that, once we ask them to do it, we have to largely leave it in their hands as to how they best do it.
Commissioner Keelty also said that he has not sought legal advice about the disruption activities in Indonesia. It is therefore difficult to understand how he can claim to know definitively that none of the activities are illegal or improper. It is now time for ministers to front up and explain to the parliament their knowledge of, involvement in and authorisation of the disruption activities in Indonesia, and the detail of those activities.
We do know that Minister Ruddock has been involved.
Nelly Siegmund from the immigration department indicated to the CMI committee that she had briefed Minister Ruddock about AFP reports relating to `Indonesian involvement in being able to stop certain vessels from departing'.
In general, immigration officials at the CMI committee were vague about their knowledge of disruption, mainly referring to information campaigns. This contrasts with Minister Ruddock's release of a background paper outlining the policy of disruption. It notes that 'disruption during transit' includes 'interception at the actual point of attempting to continue their journey, either by sea or air'.
Minister Ruddock should detail his involvement to the Australian people, as should the other ministers involved-the Attorney-General, the Minister for Justice, the Minister for Foreign Affairs and the Prime Minister.
We know from the select committee's work that the Prime Minister established the People Smuggling Task Force in his department to share high-level information, and we know that this task force discussed disruption activities on a number of occasions.
What briefings did this task force provide to the Prime Minister about the nature and extent of disruption activities undertaken by, or condoned by, Commonwealth agencies?
On 27 September 2000, Senator Ellison, the Minister for Justice and Customs, issued a ministerial direction to the AFP to give special emphasis to countering and otherwise investigating organised people=smuggling. What does Senator Elli- son know about how this directive was put into op- eration?
Section 6(1)(e) of the Intelligence Services Act, which commenced on 29 October 2001, requires the foreign minister to put into writing any ministerial direction authorising the Australian Secret Intelligence Service to engage in so-called 'other activities'-that is, any activities relating to people or organisations outside Australia other than intelligence collection.
Disruption activities would be 'other activities' for ASIS under the provisions of the Intelligence Services Act. The question of provision for the authorisation of 'other activities' was certainly a government priority when the Intelligence Services Bill was before the parliament last year.
It is now time for the Minister for Foreign affairs to confirm to the Australian parliament whether he authorised the Australian Secret Intelligence Service, either prior to or following the commencement of the Intelligence Services Act, to engage in disruption activities, and, if so, to explain what sort of disruption activities took place.
Of course, direct parliamentary scrutiny of the role of ASIS is not possible. Nor is it possible for the joint committee to examine these matters. It is also possible that such an examination falls outside the powers of the Inspector General of Intelligence and Security. If ASIS is involved, the critical aspect would be the behaviour of its agents, not its intelligence officers.
Ultimately, supervision and responsibility in this area lie with the foreign minister. If ASIS has been involved then in my view the Minister for Foreign Affairs should brief the Leader of the Opposition on this subject.