When the truth is all at sea
Aaron Patrick
The Australian Financial Review
19 April 2002

Aaron Patrick on what really happened in the Indian Ocean

The mission was to deter and deny their access to Australia. Transferring the people to Adelaide would have been a mission failure. (Commander Norman Banks, before the Select Senate Committee on a Certain Maritime Incident, March 25.)

The children overboard affair really began on April 15, 1912, when the HMS Titanic hit an iceberg in the Grand Banks region of the Atlantic Ocean. The greatest maritime disaster of its time, the sinking of the "unsinkable" Titanic and heavy loss of life horrified the public in an age when shipping dominated long-distance transport. It raised so many questions about maritime safety that the international community felt compelled to act. In 1914 a legal standard for behaviour at sea was agreed on at a conference in London, becoming the International Convention for Safety of Life at Sea. The convention was a revolution in maritime law, setting down for the first time internationally accepted safety standards for shipping. Among the key elements was an utmost regard for human life and a responsibility to provide aid to those in distress.

This was an obligation carried by the HMAS Adelaide last September as it steamed towards the Australian territory of Christmas Island, 360 kilometres south of Java. While on duty in South-East Asia, the guided-missile frigate and its crew of 196 had been assigned to Operation Relex, the Howard government's plan to turn away people-smuggling boats before they crossed Australia's maritime boundaries.

It was a well-resourced mission with a fatal weakness at its heart. Send a guided-missile frigate to the Indian Ocean to block the human flotsam and jetsam of the Third World. Convince desperate people to turn their boats around and head back to refugee slums in Indonesia. And if they refuse, and put their own lives at risk, pick them out of the ocean and drop them back in Australia, where they always wanted to go.

The Adelaide was to interdict boats taking the short trip from Java to Christmas Island before they entered Australian territorial waters. The asylum-seekers, known officially as "suncs" (suspect unlawful non-citizens), were to be blocked from Australia's migration zone, a boundary which gave them enhanced rights under immigration law.

The first step was to head off the boats on the high seas, using aggressive action to deter them. If they made it to Australia's contiguous zone, the Navy was to board the boat, sail it to the outer edge of the zone, and release it. Should the boat re-enter the zone, a boarding party was to detain the boat pending a decision by the Prime Minister's office. At no stage were the asylum-seekers to be allowed to enter the migration zone.

Under legislation passed by Parliament last September, Christmas Island had been removed from Australia's migration zone, prohibiting any person who arrives there from applying for a visa without permission from the immigration minister. Arrivals would be assessed under criteria laid down by the international refugee convention, and those found to be genuine refugees granted ministerial dispensation. The effect of the change was to allow the government to shift asylum-seekers to countries like Papua New Guinea and Nauru for processing without recourse to the Australian courts. The moment any asylum-seekers made it to the migration zone, they would be entitled to apply for a refugee visa and to seek the assistance of advocacy groups and independent legal advisers, enormously complicating the assessment process for the government.

The Adelaide, a guided-missile frigate designed to sink other warships, was assigned to patrol the seas between Christmas Island and Java as the smaller and cheaper patrol boats couldn't berth at Christmas Island and didn't have the range to operate from the mainland.

The ship's immediate supervisor was Brigadier Michael Silverstone, the northern forces commander based at Darwin's Larrakeyah Barracks. He was responsible for four ships patrolling the maritime border and several Air Force P3-C Orion aircraft. With a range of almost 4,000 kilometres, the 30-year-old planes have so much surveillance equipment that it requires six analysts to operate them. Silverstone was familiar with the Safety of Life at Sea convention, and wanted his ships to be prepared for a mass rescue of asylum-seekers from the ocean. The Adelaide was ordered to be ready, and while it was not comfortable with the role, calculated that it could house 300 people for a short period.

The intelligence services were also involved. The Australian Federal Police paid an Indonesian-based informant, Kevin Enniss, $25,000 for information on people-smuggling, including departure times and locations. Australian-based spying agencies such as the Defence Signals Directorate were also believed to be intercepting telephone calls and passing information to the defence forces. Indeed, it was an intelligence tip-off that would ultimately lead to the events that became the children overboard affair.

At about 2pm on Saturday, October 6, an Orion with the call-sign Mariner 1 spotted a wooden-hulled boat about 200 kilometres north of Christmas Island. It was between 20 and 25 metres long, flying an Indonesian flag and heading south at 8 knots (15 km/h), putting it about 13 hours from Christmas Island. The aircraft radioed the Adelaide, gave it a precise location and said that 50 people were on the deck of the boat and that the passengers were wearing life jackets.

The discovery by Mariner 1 did not happen by chance. It had been looking for the boat, knew it had left an Indonesian port the day before, and knew its name, the Olong. The Adelaide began to track the Olong by radar, and gave it the designation SIEV 4 (suspected illegal entry vessel number four). As the Olong continued its journey south, the Adelaide closed in and dispatched a 7.2-metre inflatable boat to the vessel to deliver standard warning notices drawn up by Department of Immigration and Multicultural and Indigenous Affairs.

Commanding the Adelaide was the 47-year-old Norman Banks, a 25-year Navy veteran. Banks had an insider's knowledge of the government's policy on boat people. His previous job had been on the operations staff of the strategic command in Canberra. In this role he had attended meetings of the Prime Minister's taskforce on border protection, which co-ordinated the response to boat people.

The atmosphere under his command was decidedly anti-boat people. Military culture is socially conservative and some of the crew expressed a "White Australia" sentiment. Some would question why the Navy was concerned about the welfare of these people.

The crew on the Adelaide's inflatable estimated that there were 208 people on the Olong, half of which were women, with eight to 10 children. Eighty per cent were wearing life jackets. But it was after dusk, so an accurate assessment was difficult. One child held up an SOS sign.

The sailors felt the boat was seaworthy and that they had no obligation under the Safety of Life at Sea convention to intervene. The Olong refused to take the immigration department warnings. Banks discussed the situation with Silverstone, and sent him a photo of the boat. He began thinking about how to seize control of the Olong, and decided the hostility of its occupants made it "problematic" to insert a boarding party.

Night fell and the lights of Christmas Island, not visible during the day, popped up on the horizon. The Olong turned towards them. By 2.30am it had entered Australia's contiguous zone. The Adelaide's inflatable moved alongside the Olong, ordering it to "heave to" in English and Indonesian. By this stage the Adelaide was within shouting distance. A sailor repeated the demand in Lebanese and Arabic through a loudhailer. The Olong maintained its course.

Banks reported back to Silverstone, who instructed him to fire warning shots. The Olong was three to five kilometres from the territorial waters around Christmas Island sailing at 7 knots. At that speed it was less than half an hour from rendering Banks's mission a failure.

With his background in strategic command, Banks grasped the sensitivity of the situation. An election campaign was under way, and border protection was shaping up as the dominant issue.

A searchlight was shone on the water about 15 to 25 metres ahead of the Olong. A sailor fired the ADF's standard rifle, the 5.56mm Steyr, at the illuminated spot. The ship then switched to its larger .50-calibre machine gun. The first shots were fired at 4am, followed by a burst after 10 minutes, then after five more minutes, then after four minutes.

Most of the 223 occupants of the Olong were from Iraq and other Middle Eastern countries. (One would claim to be an Iraqi general with a suitcase of government documents.) They knew the shots were being fired to scare them, but refused to change course. The Adelaide, 138 metres long with a displacement of 4,100 tonnes, then manoeuvred "aggressively close" to the 25-metre Olong to slow it down. A boarding party, armed with 9mm pistols and truncheons, and possibly metal detectors, stormed the boat and took control in minutes. They herded the men to the front and women and children to the rear, and took over the wheelhouse. A few kilometres from Australian waters, the asylum-seekers were angry and disappointed. Some made threatening gestures with wooden sticks. Others threatened to kill themselves and one man jumped overboard. He was rescued by an inflatable.

As the sun rose over a calm Indian Ocean an hour later, the Olong had been turned around and was heading north. Its cargo was shouting, crying and begging not to be returned to Indonesia. The asylum-seekers would later claim that the Australians were travelling at full throttle, producing exhaust gas that made it difficult for the women and children at the rear of the boat to breathe. Banks would suggest the heavy exhaust reflected the poor condition of the boat's engines. He was also concerned about water sloshing over the deck.

With Christmas Island disappearing off the stern, order began to break down. The asylum-seekers attacked the boat, starting with a radio antenna and compass which were ripped from their mountings and thrown over the side. According to a signal from the Adelaide, some passengers threatened to commit suicide or throw their children overboard if they were not taken to Australia. Several tried to jump ship and were restrained by the Australians. Just after daybreak the first asylum-seeker leapt into the ocean. He was rescued. Thirty-seven minutes later another went into the water, then 12 more in the next 13 minutes.

Several sailors saw a man on top of the wheelhouse put a life jacket on a five-year-old girl, hold her over a guardrail, and then retreat inside the boat. Banks would call it an "inconsequential incident in the overall scheme of things", but it may have been the source of the "children overboard" allegations.

It was around this time the evidence suggests at 5.50am that Banks received a fateful phone call which would trigger a political scandal, tarnish reputations and undermine confidence in the federal government and defence forces.

Using a satellite link, Silverstone rang the Adelaide's bridge to find out what was going on. Normally Silverstone would rely on written signals from the ship, but at 7.30am he was due to brief Air Vice-Marshal Alan Titheridge, the head of strategic command. It was Titheridge's job to ensure specific operations conformed to the government's broader international policies. On that day he was gathering information on Operation Relex for a brief for Peter Costello, who was to be on Channel Nine's Sunday program that morning. (Costello would not be asked about border protection.)

The Silverstone-Banks call lasted about four minutes. In notes made during and immediately after the call, Silverstone wrote in his log book: "Men in the water, child thrown over the side." His notetaking couldn't keep up with Banks, and he left a gap and added the word children afterwards. This was passed up the line and became the basis for claims that day by Immigration Minister Philip Ruddock that "a number of children have been thrown overboard".

To this day Silverstone and Banks have different recollections of what was said. Banks admits he has an imperfect memory of the conversation, but believes he never said that children had been thrown overboard. The ship's principal warfare officer, Lieutenant Commander Daniel Hynes, backs him up, although he overheard only part of Banks's side of the conversation. Silverstone says he is absolutely clear that Banks said that a child aged five, six or seven had been thrown into the water. He remembers quizzing Banks about the child's age and whether it was wearing a life jacket.

"He had a high degree of emotion in his voice, as though he was wondering why I was asking these questions when he had to get on and deal with the circumstance in front of him," Silverstone told the Senate inquiry.

A day or two later Silverstone became aware of doubts about the story, checked the ship's signals and found no mention of a child being thrown overboard. He ordered Banks to provide statements from the crew and himself. One crew member said a child may have been in the water. Two said children were never in the water. None of the other 13 witnesses saw any children or child in the water. Banks himself reached a firm conclusion: None went over the side. "No children were thrown overboard, no children were put in the water and it was a little surprising to me that that was being questioned," Banks told the inquiry, referring to a conversation with Silverstone.

All 14 people in the water were rescued by the Adelaide's crew. Once they were back on the Olong, Banks doubled the number of sailors on board to 18. The mood remained hostile and the passengers continued to sabotage the boat. Upper-deck fittings were destroyed and steering rods bent. Coolant lines into the engine were cut, and plastic thrown on the motor casing, creating a thick toxic smoke. A small fire was lit near the bow.

A medical officer rigged up an intravenous drip for several people who said they were suffering dehydration, but water handed out was thrown into the sea.

The Adelaide escorted the Olong to the outer boundary of the contiguous zone. By the time Banks pulled his boarding party out at 10.29am, it was out of Australian waters and 45 kilometres from Christmas Island. The Australians decided the boat was fit for the return trip. When a search of the Adelaide failed to find a compass to give to them, one of the sailors offered up his own orienteering compass. The Olong was given a heading, and told to sail until it hit Indonesia.

Banks had successfully completed the mission the boat was outside Australian territorial waters but later admitted to the Senate committee that he "was not comfortable a win-win situation had been achieved". The statement was made with a perfectly straight face, but it was not clear if Banks was being literal or diplomatic. One assumes it was the latter. By any measure the asylum-seekers had not had a "win", having been turned back within sight of Australian land.

Banks knew the Olong was in poor shape. It was having difficulty steering, the engine was unreliable and it was taking water. He stationed the Adelaide out of sight about five miles away waiting for a distress signal.

It came at 1.30pm, when the boat raised a square white flag with a black ball hanging from it the maritime signal for Mayday requiring a response under the SOLAS convention. Several passengers slowly raised and lowered their arms, another distress signal.

Banks rang Silverstone in Darwin and updated him. A decision was made to tow the boat into the contiguous zone around Christmas Island and await directions from the government. After the drama of the previous days, the asylum-seekers had forced the Australians' hand by raising a piece of white cloth. A group of sailors boarded the Olong to supervise the tow.

The mood on the boat changed completely. All aggression evaporated. The asylum-seekers were delighted and began co-operating with the Australians, who gave them food and water, and checked for medical problems.

Banks's notes indicated he had been told a decision would be made by John Howard on whether to tow the boat to Christmas Island, Cocos Island or Indonesia. It is not known if the Prime Minister was actually consulted. Either way, the warship and the wooden boat began the slow trip to Christmas Island, sailing throughout the night on a calm sea at two to three knots.

Amid the drama that day, Banks had received an unsettling signal. The reverberations of the terrorist attacks on the US a month earlier had reached Australia, and the Adelaide was being pulled from Relex to join the "war against terrorism". The ship was to return to the naval base at Subiaco and prepare for deployment to the Middle East.

Banks, a conservative and defensive man, was preoccupied with the next job. In his mind, the task of border protection was all but over, and he was starting a more important and dangerous mission.

But the present situation was deteriorating. The Olong's teak hull was leaking faster than water could be pumped out. Even the Adelaide's own pump system was unable to keep up.

By 5pm it had become clear that the Olong was doomed. The Adelaide's executive officer radioed Banks and told him the boat did not have long to last, and Banks ordered the life rafts launched. "It was a moment that will stay in my mind forever," he would say. The boat began to lose its natural stability as its passengers moved around in panic. The Adelaide launched six of its own life rafts and with the two inflatables already in use began dragging scared people from the water.

Photos of the sinking showed that a 23-day-old infant was one of the first people rescued, being handed directly from the Olong to an inflatable. (The child was later given a nappy and formula from the ship's store.) Several of the Adelaide's sailors jumped into the water to help asylum-seekers who looked like they could be sucked under water. Photos of two of them, Able Seaman Laura Whittle and Leading Cook Jason Barker, would later be misrepresented by Defence Minister Peter Reith's office as having occurred the day before.

The Adelaide's crew used any means it could to get the people onto the ship quickly. A cargo net was thrown over the side, a ladder and two strops, harnesses similar to those used by helicopters to rescue people at sea. The situation was so desperate that Banks considered calling for boats from Christmas Island. This triggered a debate in Canberra between the chief of the defence forces, Chris Barrie, and the secretary of the Department of Prime Minister and Cabinet, Max Moore-Wilton.

Moore-Wilton insisted all asylum-seekers be rescued by the Adelaide, apparently to ensure that none escaped the Navy's custody. Barrie rejected the demand out of hand, making it clear that safety was his first priority. As a former destroyer commander, he understood the Navy's responsibility under the Safety of Life at Sea convention.

The issue was academic. By 6.41pm, all the occupants of the Olong were on the forward deck of the Adelaide being dried, clothed and fed. The crew built four toilets. No-one was injured, although many asylum-seekers were distressed and exhausted. Sleeping bags were distributed.

The rescue had dramatically altered the mood on the ship. All antagonism towards the asylum-seekers was replaced with compassion. The crew worked through their evening meal without complaint, helping wherever they could.

The Adelaide was ordered to spend the night at sea, and then to transfer the asylum-seekers into the hands of the Customs Service and Federal Police on Christmas Island the next day. The crew cheered and clapped when the order was read out. At about 2pm on Wednesday, after a delay, the ship tied up at Flying Fish Cove. Over three hours the asylum-seekers were taken ashore, relieved to be on Australian territory at last.

At about the same time John Howard was flying from Melbourne to Brisbane for an election commitment. He revealed to reporters travelling with him that Papua New Guinea had agreed to detain the asylum-seekers while their claims were assessed. Seven months later, of the 116 refugee claims processed by the Immigration Department, 90 per cent have been declared legitimate. The refugees await resettlement by the UN High Commissioner for Refugees. The Howard government has not decided whether it will accept any of them.

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