COMMONWEALTH OF AUSTRALIA Official Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident MONDAY, 25 MARCH 2002 CANBERRA BY AUTHORITY OF THE SENATE INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Monday, 25 March 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Ferguson, Faulkner and Mason. Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BANKS, Commander Norman, Royal Australian Navy........................................................................... 156 HAWKE, Dr Allan Douglas, Secretary, Department of Defence ................................................................. 1 SHACKLETON, Vice Admiral David, Chief of Navy, Royal Australian Navy........................................ 55 Monday, 25 March 2002 SENATE-Select CMI 1 Committee met at 9.40 a.m. HAWKE, Dr Allan Douglas, Secretary, Department of Defence CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee will begin its hearings in relation to its inquiry, the Senate having agreed to the terms of reference of this inquiry on 13 February 2002. The reporting date for our inquiry is 16 May 2002. The terms set by the Senate are available from secretariat staff. Today's hearing is open to the public. This could change only if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 10.30 p.m. and will resume at 9.00 a.m. tomorrow. This inquiry is dealing with an issue that has been the subject of an extraordinarily high level of press attention and public comment. It has also resulted in considerable political debate in parliament and elsewhere. The committee is unanimous in its determination to produce a report which is as definitive and as thorough as possible and which is grounded in the facts, key statements, documents and accounts of those who are best placed to provide such material. The select committee is working to an extremely tight time frame, but is committed to a thorough and judicious examination of the issues. We shall be led by the evidence and we will construct the future course of our hearings to sustain a sound evidentiary approach to our business. We shall deal as expeditiously as possible with witnesses but the committee is unanimous in its view that each witness shall be questioned until the committee is satisfied that its line of inquiry with that witness is exhausted. To that extent the times listed on the advertised program are indicative only. This may mean some witnesses are delayed. We apologise in advance should this occur. To help minimise lost working time the committee has set up computer, phone and fax facilities in the adjoining room and a member of the Defence Liaison team is present in the hearing room to coordinate and anticipate the presence of Defence witnesses. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. Under the Parliamentary Privileges Act 1987, the giving of evidence and the production of documents by a witness has the same legal status as a senator's participation in Senate proceedings and therefore attracts the very wide protection which is given to proceedings in parliament against prosecution, suit, examination, or questions before any court or tribunal. The action of a witness in giving evidence and producing documents and the evidence given therefore cannot be used against the witness, in any sense, in subsequent proceedings before a court or tribunal. Standing order 181 declares: A witness examined before the Senate or a committee is entitled to the protection of the Senate in respect of the evidence of the witness. This is a declaration by the Senate that it will use its powers to protect witnesses against any adverse consequences arising from their giving evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. CERTAIN MARITIME INCIDENT CMI 2 SENATE-Select Monday, 25 March 2002 If at any stage a witness wishes to give part of their evidence in camera they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person, and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on mat- ters of policy. However, they may be asked to explain government policy, describe how it dif- fers from alternative policies, and provide information on the process by which a particular policy was arrived at. I now wish to place on record some facts regarding the approach of the government to this inquiry. Last week, reports from several media outlets indicated that cabinet had issued a directive to departments that they were not to make written submissions to the inquiry, and that ministerial staff would be instructed not to give evidence. As a consequence, I wrote to the Department of the Prime Minister and Cabinet seeking clarification of the scope and nature of the reported cabinet directive. The committee was advised in writing on 21 March that-and I quote from the PM&C secretary's letter: * departments and agencies will not provide written submissions; * officials will attend if called but staff under the Members of Parliament (Staff) Act at the relevant time will not. In response to written invitations issued by the committee earlier, a number of departments had indicated that they would be providing written submissions to the committee. None have been received so far, even though the due date the departments volunteered for submissions has passed. Some departments have advised the committee they will no longer be making the submission they had earlier advised would be provided. Let me make this comment: it will be of considerable assistance to all parties, and to the government, if this inquiry can complete its work efficiently and within the allotted time. I therefore hope that a cooperative approach can be taken and our work not unnecessarily hindered. Witnesses will be asked to make an oath or affirmation. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. For the convenience of all, where this is requested the committee has agreed that counsel may be seated at the witness table with the witness. However, counsel has no right to address the committee, nor will the committee address questions to counsel. I note that, at his request, Senator Murphy, a member of this committee, has sent an apology for today's and tomorrow's hearings. Welcome, Dr Hawke. Before I ask the committee members if they have any questions they may wish to put to you, do you have any comments to make by way of an opening statement? Dr Hawke-I do. I wanted to just spend a few minutes on some background. The second part of my statement relates to my direct involvement in this matter. Without going into the detail, I want to highlight six aspects that are important to the overall context from Defence's point of CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 3 view. Although these touch on operational issues, which are more properly the province of the Chief of the Defence Force, I believe they are worth recording now, given that Admiral Barrie is not scheduled to appear until later in the proceedings. First, Defence's role-and Navy's in particular-in support of the government policy was to detect and prevent the entry of illegal immigrants attempting to land by boat on Australian shores. This is an appropriate role for the Australian Defence Force in defending Australia and its national interests. It was specifically recognised in the government's Defence white paper, along with illegal fishing, terrorism and other issues. Second, for the sailors at the front line of this role, their operational imperatives were clear and their perspectives have been quite differ- ent from others, including those involved in the policy framework in Canberra. Third, some of the reports provided by the commanding officer and his crew were in circumstances that were often chaotic, and where ensuring that no lives were lost became their pressing priority. To the credit and the honour of the crew, not one life was lost in this case. Fourth, the initial oral report from the commanding officer was passed rapidly up the line within, and outside, Defence. It may or may not have been adequately caveated. Those directly involved will be able to respond to that. The information passed on from Defence to others was accepted, notwithstanding the fraught circumstances from which the initial advice was derived-that is, from HMAS Adelaide, whose crew were in the middle of a difficult and far from typical naval operation. Fifth, attempts to correct the view that children had been thrown overboard were affected by significant reliance on oral communication, confusion over the nature of photographic and video evidence, and the distribution of the commanding officer's message of 10 October 2001. An obvious difficulty in assessing the evidence in the issues now before the committee is that many participants have different perceptions of the same events. They have different recollections of what was said, to whom, what was heard, and when. There also seemed to be a perception that, while evidence to support the claim that a child or children had been thrown overboard had not yet been found, there was still a possibility that such evidence existed and had not yet been located. Sixth, after an initial flurry, media interest and reporting on the matter all but disappeared from around 12 October. This, almost certainly, affected the amount of attention that was given to it within Defence at the time. I would now like to touch, very briefly, on a few aspects of my direct involvement in the `children overboard' imbroglio up to the time of the 10 November election. On 11 October, I rang Ms Jenny McKenry, the head of our Public Affairs and Corporate Communication Division. In response to my question, she told me that the photographs that had been published in the media that day had been taken on 8 October and that they related to the rescue of people after the sinking of suspected illegal entry vessel No. 4. They could not, therefore, relate to the claims about children being thrown overboard on 7 October. Ms McKenry went to say that on the previous day, as soon as she and the military public affairs adviser, Brigadier Gary Bornholt, had become aware that the photos had been released without captions, she had asked Brigadier Bornholt to contact Minister Reith's media adviser, Mr Ross Hampton, urgently and explain to him the context of the photographs-that is, that they had been taken on 8 October, the day that the SIEV4 sank, not the day before. Brigadier Bornholt had contacted Mr Hampton on his mobile phone that afternoon to this effect. Mr CERTAIN MARITIME INCIDENT CMI 4 SENATE-Select Monday, 25 March 2002 Hampton queried Brigadier Bornholt's advice. Brigadier Bornholt went away and checked his advice, then rang Mr Hampton back and left a message on his mobile that the previous information provided about the photos was correct. CHAIR-Dr Hawke, what was that date? Dr Hawke-This was 11 October. Mr Hampton did not return the call. We agreed that Ms McKenry should immediately contact Michael Scrafton, the senior adviser in the minister's office, to inform him of the misrepresentation. I also asked that this advice be put in writing and, later that day, I received a copy of the email sent to Mr Scrafton. On the morning of 8 November, Air Marshal Houston, who had been Acting Chief of the Defence Force, informed me of a discussion that he had had with Minister Reith on 7 November, in which the air marshal had said that there was nothing in the evidence he had seen to show that children had been thrown overboard. At the Press Club luncheon address on that same day, 8 November, the Prime Minister was asked about the photographs purporting to support the view that children had been thrown overboard. The Prime Minister's reply mentioned an Office of National Assessments report. I asked to see the ONA report and any Defence intelligence product or written operational advice about this matter. It transpired that Defence had not published any intelligence material indicating that children had been thrown overboard, so the ONA report could not have been derived from such sources. I confirmed that this was indeed the case again, the next morning, with Mr Shane Carmody, the deputy secretary of our intelligence and security group. Late on the afternoon of 8 November, Mr Moore-Wilton telephoned to ask whether I was aware of the Chief of Navy's comments in Western Australia on the issue. I replied that I was, and that a clarifying statement by Admiral Shackleton was imminent. I rang Mr Moore-Wilton a little later to say that the Chief of Navy statement had been released, and faxed a copy to Mr Moore-Wilton's office. On the afternoon of 9 November, I returned the telephone call of the secretary of immigration and multicultural affairs of the previous afternoon. He had rung to ask about the Chief of Navy's remarks, but by the time I returned his call he was aware of Admiral Shackleton's later media statement. With the advantage of hindsight, I have asked myself whether I could have or should have taken a more active involvement. I certainly could have. Whether I should have remains an open question in my mind, with one clear exception. The clear exception where I might well have done more is my involvement in the matter of the photographs. In retrospect, I should have discussed that issue directly with and provided clear written evidence to Minister Reith. If Defence's efforts have not lived up to the expectations of others, I believe this has nothing to do with the capacity and endeavour of the individuals who have been involved. They seem to have done their level best. Our shortcomings may well, however, have something to do with the adequacy of Defence's administrative arrangements, for which the Chief of the Defence Force and I are jointly responsible. Mr Chairman, may I thank you and the committee for allowing me the time to make this statement. There are some other matters I have not touched on that you may wish to pursue. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 5 These include the videotape, the CDF-secretary roles and interaction and the administrative changes proposed in the light of the lessons we have learned from this matter. CHAIR-Thank you, Dr Hawke. You were reading your statement, as I apprehend it. Dr Hawke-Yes, I was. CHAIR-Would it be possible to make your statement available to the secretariat so that we do not have to wait for the Hansard, and we can have it circulated to the committee forthwith? Dr Hawke-Absolutely. CHAIR-We have had a discussion up this end about the batting order, and I now call Senator Faulkner. Senator FAULKNER-I was not involved in that discussion, but I am more than happy to open the batting. That is fine. CHAIR-The Deputy Chair and I discussed it. Senator FAULKNER-Dr Hawke, if I could just touch on one issue to start with. You were not interviewed by either Major General Powell or Ms Bryant for their reports. Do you have a view about the appropriateness or otherwise of the fact that your views were not sought? Dr Hawke-I suspect that they were focused on the fact that it was an operational matter, which was properly in the province of the Australian Defence Force side of the organisation. Senator FAULKNER-Do you think that some of the information that you have provided to the committee might well have been usefully included in either of those two reports? Dr Hawke-My recollection from the reports is that those issues were dealt with pretty comprehensively by Jenny McKenry, and that Ross Hampton, the media adviser, had also put his side, in particular, to Ms Bryant. Senator FAULKNER-So you have had an opportunity to see the witness statements that were made for Major General Powell's report? Dr Hawke-No, I have not done that. I have read the reports, of course, and I have seen some related material, but I have not read any witness reports. Senator FAULKNER-So in fact you would not be able to say whether these might necessarily have been adequately dealt with by Mr Hampton? Dr Hawke-I think Ms Bryant's report deals pretty well with the matter. Senator FAULKNER-Have you had any subsequent discussions with either Major General Powell or Ms Bryant? CERTAIN MARITIME INCIDENT CMI 6 SENATE-Select Monday, 25 March 2002 Dr Hawke-No. Senator FAULKNER-You have been able to detail for the committee your own personal involvement, and we appreciate that information. Do you yourself tend to take records of internal telephonic communications, meetings and the like? I am wondering what your own practice was in relation to these interactions. Dr Hawke-No, I do not. I have from time to time, but I do not do that as a matter of course. Senator FAULKNER-In relation to these particular matters-the events of 11 October specifically and 8 and 9 November-did you make any contemporary records at those times? Dr Hawke-No, I did not. I should just mention in relation to what you said that there are a few issues I did not touch on-as I said-at the end of my statement, like the videotape et cetera, where I have had a direct involvement. Senator FAULKNER-I am sorry, I did not hear what you said. Dr Hawke-You mentioned that I had placed on the record my precise involvement-where I had been directly involved-but, as I said at the end of my statement, there were a few issues where I was involved but I did not cover- Senator FAULKNER-I appreciate that. Would you be able to say to the committee precisely when you personally became aware of suggestions or claims that children had been thrown overboard from SIEV4? Dr Hawke-When they had? Senator FAULKNER-When you became aware of those claims. Dr Hawke-I do not recall precisely when that was, but I do recall hearing something to that effect. What is not clear to me in retrospect is whether that related to 7 October or 8 October. Senator FAULKNER-Are you aware at all of how those claims might have come to your attention? I assume it would have been from non-Defence sources, given the nature of your evidence-but that is an assumption on my part, and it might be just - Dr Hawke-No, it may well have come about in the course of my day-to-day dealings with Admiral Barrie, where he mentioned the issue and various developments to me, or it could have arisen at one of the strategic command group meetings I attend, which CDF has on a regular and irregular basis depending on what issues are running. Senator FAULKNER-So you cannot tell us when you were first aware of the claims that children had been thrown overboard, but you were aware of those by-I assume-11 October. Would that be right? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 7 Dr Hawke-Yes, that is correct, because I certainly was involved in correcting-or trying to correct-the record on the photographs, that they did not show what they were supposed to show; that they were about 8 October and not 7 October. Senator FAULKNER-But there are two different issues here, aren't there, really? One is about the claims of children being thrown overboard and the accuracy or otherwise of those claims, and the other is the issue of whether the photographs themselves related to children who had allegedly been thrown overboard. Dr Hawke-Correct. Senator FAULKNER-I am trying to draw a distinction, if you like, between those two key issues. Dr Hawke-I was aware of the issue, maybe from reading the newspapers of the day. I was also aware at the time that this was a set of circumstances different from previous such vessels in that the people had life jackets on, and I do not recall how that came to my attention either. Senator FAULKNER-I hear what you say. You are saying that you are aware that the photographs are not photographs of children who were thrown overboard. You are quite clear on that point. Dr Hawke-I am quite clear. Senator FAULKNER-What I am trying to understand is whether you were also clear at that point as to whether children had or had not been thrown overboard. Dr Hawke-I was not clear about that, because I distinctly recall Admiral Barrie continuing to believe in the truth of the original report that a child or children had been thrown overboard. Senator FAULKNER-How were you aware of Admiral Barrie's position? Dr Hawke-From our daily discussions when he was about the place. Senator FAULKNER-So your practice is to have a daily consultation or meeting with CDF, is it? Dr Hawke-No, they are more informal than that. You will recall that this was an operational matter that was under the direct command of CDF, and I do not believe the secretary of the department should interfere in his role as commander of the Defence Force or as principal military adviser. Senator FAULKNER-Are you now satisfied that children were not thrown overboard in relation to the SIEV4 incident? Dr Hawke-I do not know the answer to that question. I suspect that is what the committee is here to try to establish. CERTAIN MARITIME INCIDENT CMI 8 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-With respect, the Powell report and the Bryant report are quite clear on that issue. Dr Hawke-Yes, they are; I am not. Senator FAULKNER-Admiral Barrie, I think, is now clear on that issue. Dr Hawke-Yes. Senator FAULKNER-But you are not? Dr Hawke-No; and, personally, I do not think it is relevant. Senator FAULKNER-I do not understand what you mean when you say you do not think it is relevant. Dr Hawke-This was an operational matter affecting the chain of command. Senator FAULKNER-So when did you become aware that there were concerns about the accuracy of claims that children had been thrown overboard? Dr Hawke-I do not recall that, either. As I have said to you, this was an operational issue so I did not put a lot of time or effort into it. Senator FAULKNER-We are not getting very far, Dr Hawke. Dr Hawke-I do not think you can, because it is not my role. Senator FAULKNER-But, with respect, this has been a matter of quite considerable public interest now for a very long period of time. I am merely trying to establish when you might have become aware of those concerns about reports that children had been thrown overboard. You obviously knew by 8 November, didn't you? Dr Hawke-Not necessarily. My intervention there was because those photographs did not show what they were purported in the media to have shown. Jenny McKenry works jointly to me and to the Chief of the Defence Force, so I felt I had an obligation to check that. Senator FAULKNER-I appreciate the two issues. I do understand there is the question of the incident to which the photos relate, and there is the other more general issue-or the primary issue if you like-the actual claims themselves, which is what I am concentrating on at the moment. Dr Hawke-Senator, if I can help you: a lot of people outside Defence do not understand why I was not involved in that, but the fact is that it was an operational matter run by the Chief of the Defence Force through the chain of command. There are people outside of Defence who do not even understand that the Chief of Navy is not in the chain of command and that he does not command Navy operations, that the CDF does that. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 9 Senator FAULKNER-Yes. But you do have, surely, a responsibility as secretary of the department to ensure that your minister receives accurate and timely advice. I know that you do accept that responsibility. Dr Hawke-I do. Senator FAULKNER-And, of course, you also have a responsibility to ensure that a minister would not wittingly or unwittingly mislead the public, so I do not know that you can wash your hands of that. Dr Hawke-I accept that, but the point I am making to you is that this was an operational matter run by CDF. He was in daily contact with the minister. So he was providing the advice and discussing these matters with the minister, not me. I do not think I have a role in it-and I suspect if I attempted to, the ADF would be up in arms about it. Senator FAULKNER-But I do not doubt for one minute that you treat carefully your responsibilities. What you are saying to the committee is that you do not believe it is appropriate for the secretary of the Department of Defence to trample into an operational matter-I think that is what you are saying to us. Dr Hawke-That is correct. Senator FAULKNER-In other words, you are saying you are not part of the chain of command. Dr Hawke-That is correct. These issues are set out quite clearly in both the legislation and the directive that the minister gives to the secretary and the Chief of the Defence Force. Senator FAULKNER-I accept that. But I think you would say, wouldn't you, that it is your role to ensure that the government as a whole-but your minister in particular, the Minister for Defence-does not get into hot water as a result of false claims that may be made about an operational matter? Would you accept that? Dr Hawke-Yes, I accept that. But CDF is the principal military adviser. He held to the original view right up until almost the end of February, wasn't it? Senator FAULKNER-I do not what know the date was. There was a press conference, as you would appreciate, when CDF- Dr Hawke-I think it was 27 February. Senator FAULKNER-I do think a lot of people will find it quite extraordinary that even now, as secretary of the Department of Defence, you are not able to say to us on this key issue of whether children were thrown overboard-given the findings of the Powell and Bryant reports, given the statements of senior officers in the Department of Defence; the leadership of the ADF is a better way to describe it-that you have satisfied yourself about the truth or otherwise of the claims that children were thrown overboard. CERTAIN MARITIME INCIDENT CMI 10 SENATE-Select Monday, 25 March 2002 Dr Hawke-I think that is exactly the purpose of this committee's work, and I would like to hear or see what some of the witnesses before this committee have to say. I have read Bryant's report and Powell's report and I understand clearly the conclusions that they come to on the matter but, to this stage, I am not convinced that we have heard the whole story. Senator FAULKNER-But how does this approach on the question of whether or not children were thrown overboard fit with the role that you did play in relation to the question of whether the photographs related to an incident on 7 or 8 October? It might be helpful for us if you could explain to the committee what appears to be a different approach in relation to that matter. Dr Hawke-On that matter, these were purporting to be photographs of the 7th. I asked Jenny McKenry-who works, as I say, jointly to me and to CDF-about the veracity of that, and she told me that they did not represent the incidents of 7 October; they related to 8 October. So I took a pretty direct role in trying to have the record corrected on that issue. That issue, I think, was clearly slightly different from an operational command issue. Senator FAULKNER-Were you concerned about the question of the photographs, as to the information that the government was putting out about those matters? Dr Hawke-Yes, and I made those points that they were not what they purported to be-or were put about as being. But I do not think that impinges on my view that the operational matters are a matter for CDF and the chain of command. Senator FAULKNER-Why did you take the initiative to ring Ms McKenry? Dr Hawke-Because I was concerned about media reporting that morning as to whether or not they were of the 7th or the 8th. Senator FAULKNER-So it was the actual concerns in the media. Dr Hawke-Yes. I wanted to know whether those photographs had been correctly represented, and they weren't. Senator FAULKNER-So when does the operational matter actually end in relation to the `children thrown overboard' issue? Dr Hawke-That is a matter for CDF, I think. Senator FAULKNER-Can you advise us? Dr Hawke-No, I do not have a view about that. I take a very strict approach to not interfering in CDF's role as principal military adviser or in operational issues. That is not to say that I have not given advice from time to time in the Strategic Command group or raised questions. But they are properly matters for the Chief of the Defence Force. If I were to go any further it would give weight to claims from time to time about civilian interference or control in CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 11 the Australian Defence Force. Some people misunderstand that issue with civil control of the Defence Force. Senator FAULKNER-How do you define `operational matter' here anyway? Dr Hawke-It is a matter where CDF actually is running an operation, as this was. Senator FAULKNER-So it is the direction of operations, isn't it? Dr Hawke-Yes, he directs them, and he has two advisory committees to help him do that. On non-time-critical matters he generally uses what is called the Chiefs of Services Committee, and on time-critical issues he generally uses the Strategic Command group to provide the advice to him. He takes the decisions-he is the principal military adviser-and he conducts the operations, normally through the Commander of Australian Theatre. Senator FAULKNER-I think I am aware of the fact that you have put some effort into ensuring that the Defence Force understands its responsibility to work for the minister and the cabinet-for the government, in other words-haven't you? Dr Hawke-I have. Senator FAULKNER-So this issue is, I think, an important one. I still do not understand where the operational matter begins or ends in relation to the question of photographs. Dr Hawke-I have also written about the difference between the CDF role and my role and our joint responsibilities. I would be happy to give you a copy of that paper, if you like. Senator FAULKNER-Yes, that might be helpful-but it is not a broad-brush issue of `no role in operational matters', is it? It is more that, in terms of the direction of operations of the ADF and the three services, you have no role. Isn't that a better way of explaining it? Dr Hawke-That is my view. Senator FAULKNER-So if that is the distinction, let us come back to the two incidents: first, the issue of whether the photographs related to kids being thrown overboard-in other words, the events of the 7th or the 8th, on the one hand-and, secondly, children being thrown overboard. Can you explain that distinction in terms of those two events? Dr Hawke-My distinction is that whether or not people were thrown overboard was an is- sue for the chain of command. The issue relating to the photographs was my reading of the me- dia reporting of the morning of the 9th-it must have been the 10th, I think. The media report- ing was suggesting that these photographs were of events that occurred on 7 October, when it was alleged that people were thrown overboard. I wanted to check for myself whether that was the case or whether they related to the day of 8 October, which was when the vessel sank. Senator FAULKNER-But you definitively knew by 11 October effectively that the photographs were a fraud. CERTAIN MARITIME INCIDENT CMI 12 SENATE-Select Monday, 25 March 2002 Dr Hawke-I knew then that the photographs were of events on 8 October, not 7 October. Senator FAULKNER-And I think you do understand, don't you, that that matter went uncorrected through the whole of the election campaign, which ended on 10 November? Dr Hawke-I am aware of that, yes. And I was, of course, aware of the direct relevance of that to the `children overboard' issue. Senator FAULKNER-Yes. Dr Hawke-And, as I said to you, I feel that I could have done more on that issue by talking directly to the minister and by providing him with clear, written advice to that effect. Relying on the staffers in this case simply was not good enough, so I have learned a very hard lesson from that. Senator FAULKNER-With respect, Dr Hawke, don't you think that you yourself have a responsibility in those circumstances, particularly given that we are talking about events that took place while the caretaker conventions were in place? Don't you think that you have a responsibility to ensure that the public record is corrected? Dr Hawke-I have a responsibility and accountability to the minister, yes. That is what I am saying: I should have discussed it directly with him and I should have written to him about it. I accept that. Senator FAULKNER-Do you think your responsibility goes just to correcting the record with the minister and to providing formal advice to the minister? Dr Hawke-Yes, I am accountable to the minister. Senator FAULKNER-I appreciate that; of course you are accountable to the minister. Do you think there is an issue here in relation to your responsibilities and your role, given that the caretaker conventions were in place during this particular period? Do you think that brings any additional responsibilities to the secretary of the department in that circumstance? Dr Hawke-I think it underscores even more that I should have discussed it with the minister or written to him at the time. Senator FAULKNER-I would like to return to the events of the 11th, which you outlined to the committee a little earlier in your opening statement. You yourself took the initiative to ring Ms McKenry. Dr Hawke-I did. Senator FAULKNER-I think you say that that is because of the media questions about this issue at the time. That is the reason that you took that particular initiative. Dr Hawke-Yes. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 13 Senator FAULKNER-Can you say to us whether you discussed at that time these issues with CDF in your regular but informal discussions with him? Dr Hawke-No, I do not recall talking to him about that. As far as I was concerned, I had handled it and moved on. Senator FAULKNER-As you say, it is your practice not to take records or notes at those particular discussions. What do you do when there is an issue that requires some follow- through? Dr Hawke-Normally, I would follow it up. What sort of issue do you mean? Senator FAULKNER-I am asking in the broad. You do not take notes of the discussions or the like. Dr Hawke-Normally, I would just follow it up. Senator FAULKNER-You just remember what takes place and follow up. You have a good memory, no doubt. Dr Hawke-It is like everybody else's; it is fallible. Senator FAULKNER-Apart from your contact with Ms McKenry in relation to the photographs, did you request information from any other areas in the department, or was there any follow-through by you with anyone else apart from Ms McKenry? Dr Hawke-On this issue? Senator FAULKNER-Yes. Dr Hawke-No. There was a later issue. Do you mean around the time? Senator FAULKNER-I was speaking specifically about the time in my question. Dr Hawke-There is a later issue which relates to that. Do you want me to address that? Senator FAULKNER-If could assist us with that, that would be helpful. Dr Hawke-This occurred on the afternoon of 15 February this year, when Brigadier Gary Bornholt called on me to say that he had now read Major General Powell's report, following its tabling in the parliament. Brigadier Bornholt said he was concerned that Major General Powell had missed the import when he-Bornholt-had told Powell about the telephone discussion between the Acting Chief of the Defence Force, Air Marshal Houston, and Minister Reith- Bornholt having been with Air Marshal Houston at the time of that telephone conversation with the minister, which was on 7 November. CERTAIN MARITIME INCIDENT CMI 14 SENATE-Select Monday, 25 March 2002 I asked Brigadier Bornholt whether he had taken a record of the conversation. He said that he had taken notes. I asked him to show them to me. He went away and got his notebook and then came back and read them to me. When he had read those remarks to me, I asked the Acting Chief of the Defence Force at the time-this is 15 February 2002-Lieutenant General Des Mueller, and the Chief of the Air Force, Air Marshal Angus Houston, to join us. Brigadier Bornholt repeated his comments to me in front of those two officers, Air Marshal Houston confirmed them and I then suggested that Mr Moore-Wilton and the minister should be informed. Lieutenant General Mueller told me later that evening that he had spoken to Mr Moore-Wilton about the matter. This was the night of 15th, as you will recall, just prior to the Senate legislative committee commencing the following week. Senator FAULKNER-We might come back to that a later stage. You said in your opening statement that you had a discussion with Ms McKenry-I think I am recalling this correctly but please correct me if I have got it slightly wrong-and that it was Ms McKenry who asked Brigadier Bornholt, and I am talking about 11 October here, to explain this to the minister's office, to Mr Hampton, I think, specifically. Dr Hawke-No, what Jenny McKenry had reported to me, Brigadier Bornholt had already done. I then agreed with Jenny McKenry-and this is on the 11th-that she should immediately contact Michael Scrafton, the senior adviser in Minister Reith's office, to inform him of the misrepresentation. Bornholt's discussions with Hampton had been on 10 October-the previous day. So that is sort of reporting basically what she told me. Senator FAULKNER-You agreed with Ms McKenry then that she should- Dr Hawke-I think I actually asked her to do it. Senator FAULKNER-Yes, you asked Ms McKenry to contact Mr Scrafton in the minister's office. She did that- Dr Hawke-In fact, she did it, I think, with Brigadier Bornholt present. Senator FAULKNER-and you received a copy of that email later in the afternoon. Dr Hawke-I think the sequence of events then was that Scrafton asked her for certain information and she emailed that to him later that day, confirming the earlier telephone discussion that they had had. Senator FAULKNER-I just might stop there for a moment, Mr Chairman. In the paper war that we have I have not seen that email. Having checked with the secretary, I have just been informed, Dr Hawke, that it is in a copy of one of the umpteen number of witness statements we have. It is appended to Ms McKenry's submission, as I understand it. Dr Hawke-May I just make one other clarification, Mr Chairman. General Powell actually did call on me during the course of his inquiry, but we did not have a long discussion because I did not think I had anything useful to add to what he had already gleaned from other sources. Senator FAULKNER-So you say that General Powell did speak to you? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 15 Dr Hawke-He did call on me to tell me where he was at with the inquiry and to ask whether I had anything useful to add-I did not think I did-to what he already had. Senator FAULKNER-I did ask you that a little earlier. Dr Hawke-Yes. He was aware of the photographs issue at the time, but he did call on me- Ms Bryant did. Senator FAULKNER-Was this to get a bit of a status report of where he was at? Dr Hawke-Yes. And in the course of that, he was not- Senator FAULKNER-As opposed to seeking, if you like, any evidence or statement from you about your own role? Dr Hawke-That was the way I read it. Senator FAULKNER-When did that take place? Dr Hawke-I do not know, but I am pretty sure he would have a record of that. Senator FAULKNER-Would that be the way normally someone conducting a routine inquiry would act, or is this something that would normally be within ADF- Dr Hawke-It would normally be in ADF channels, yes. It is not routine, no. I am often told about these issues; for instance, with the board of inquiry into the F111 incident, I think the Chief of Air Force came and told me that he had the report and was considering the recommendations. So they happen from time to time, but it is not a regular- Senator FAULKNER-I am just trying to understand the processes here, because you your- self- Dr Hawke-The report from Major General Powell was to CDF, of course. Senator FAULKNER-Yes, indeed, because it is a routine inquiry that is established as a result of a direction of CDF. I think that is correct, isn't it? Dr Hawke-Yes, that is correct. Senator FAULKNER-I am just wondering, therefore, about the processes-I am not being critical of them; I am just trying to understand-in relation to why Major General Powell might talk to you, given your strong views about the operation- Dr Hawke-I think you should ask him that when he is here. Senator FAULKNER-I could ask him but, given that he is not here, I thought I might ask you. CERTAIN MARITIME INCIDENT CMI 16 SENATE-Select Monday, 25 March 2002 Dr Hawke-As I said to you, I thought he came to tell me basically where he was at and that it was on track for delivery to CDF. I recall that we had this conversation but that I did not have anything useful, I thought, to add to what he was doing. Senator FAULKNER-So you would not be able to say to us how often you in fact had discussions with CDF on this question of children being- Dr Hawke-No, I would not. I would have been present at most of the Strategic Command groups on this whole series of incidents over that couple of months, but not all of them. Senator FAULKNER-No, sure. But was it a matter that received regular or irregular airing? Dr Hawke-It was not a big issue for me at the time. It turns out to be so now. Senator FAULKNER-I appreciate it may not have been a big issue for you, but I am asking, given that that is one of the interfaces you have, if you like, with the ADF, as to whether it was regularly or irregularly discussed. Dr Hawke-It was not every day. CDF was away for some periods of time during these events as well, as I recall. Senator FAULKNER-As the secretary of the department, I assume you would have received regular reports from the people-smuggling task force? Dr Hawke-No. I do not recall ever having seen one actually. I may have. I may have seen them in passing, but I do not recall concentrating on them or focusing on them at the time. We could check my office for that. Those matters would have basically been handled in Strategic Command by Air Vice Marshal Titheridge. I may have seen some of the reports; I just do not recall them. Senator FAULKNER-My colleague Senator Collins has now turned up the McKenry- Scrafton email. What might be useful, Dr Hawke-if you would be willing to provide it-is the email that goes to you. It may be in the same form. We have a copy of the email that goes from Ms McKenry to Mr Scrafton. Would you mind taking that on notice? Dr Hawke-Yes. There is a whole sequence of emails here, including my confirmation back to her. Senator FAULKNER-That is appended to Ms McKenry's witness statement. Dr Hawke-It may just be this page that is missing. Senator FAULKNER-They may have it too. Dr Hawke-I will add that to the record, Senator. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 17 Senator FAULKNER-I can identify the missing piece of information now. My colleagues have been working very hard on this. There is a McKenry to Scrafton email of Thursday 11 October 16.37 copied to you, and then appended. Dr Hawke-That is correct. And then there is my reply here. I think we are talking about the same thing. Senator FAULKNER-What we do not have is the next one-I do not know if it is the next one-the `Tim Bloomfield, 11 October 16.26' one. Dr Hawke-You do not have that one? Senator FAULKNER-We do not have the appended document- Dr Hawke-I am quite happy for you to have that. Senator FAULKNER-which is headed `HMAS Adelaide UBA issue: sequence of events'. It may well be the same as some of the other documents. I think we have been able to nail down what is missing there. I thank my colleagues for assisting with that. In relation to the photos issue, what, if anything, did you do to clarify that issue with the minister? Dr Hawke-Nothing. I regarded the advice having gone to Mike Scrafton as sufficient at the time. Senator FAULKNER-Did you actually personally have any conversations with the minis- ter about the photographs at any stage after 11 October? Dr Hawke-Not until I was doing my performance assessment recently. Senator FAULKNER-What was the date of your performance assessment? Dr Hawke-The date I met with Mr Reith was 14 March. Senator FAULKNER-What year? Dr Hawke-This year. Senator FAULKNER-With Mr Reith? Dr Hawke-Yes. He was minister for nine months of the 12 months of my performance assessment period- Senator FAULKNER-I know that. Dr Hawke-so I had to go and have a discussion with him about my performance assessment. I said to him then what I said to you, that I felt that I should have discussed the matter with him and provided unequivocal written advice. CERTAIN MARITIME INCIDENT CMI 18 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-What about the broader issue of the claims of children being thrown overboard after the period of early October? Dr Hawke-I never had a discussion with the minister about that issue. He referred to it, of course, on 14 March, when we met. Senator FAULKNER-You also raised in your opening statement the matters that occurred on 8 and 9 November. On the morning of 8 November, Air Marshal Houston informed you of the discussion that he has had the day before-which I think has received considerable publicity-with Minister Reith. I imagine you would be aware of it, but for the benefit of the committee you might explain to us whether you were aware of the political and public sensitivity of this, given the period we are talking about in terms of the political and election cycle. You would have been aware of that? Dr Hawke-Yes, I was aware of that. Senator FAULKNER-Could you explain to me what you did to try and ensure that misinformation in the public arena was corrected-this is in the period of literally a day or so prior to voting in the federal election? Dr Hawke-Air Marshal Houston told me that-I am not sure whether this is right or not, but my recollection is that I think the minister had asked him- Senator FAULKNER-I am sorry, could you say that again? Dr Hawke-I just have a recollection that the minister may have asked Air Marshal Houston about the matter. He went away-and you will have to ask him-and then rang the minister to say that, on the basis of the evidence put before him, there was nothing that supported the view that children had been thrown overboard. He told me that on the morning of 8 November. Senator FAULKNER-I know. What I am asking you is: now that you were aware of this, what obligations or responsibilities did you feel you had, given the sensitivities of the political timetable, if you like-there is no other way to describe it; it is literally 48 hours from voting in a federal election? I wonder what you did to try and ensure that any misinformation was corrected and not allowed to run. Dr Hawke-Again, that was a chain of command issue, but the two things that I did do were specifically to pursue the ONA report that was mentioned at the Press Club luncheon that day, whether or not that originated from defence intelligence sources. As it turned out, it did not. I also checked further with Gary Bornholt on the status of the photographs. Senator FAULKNER-Why do you say this is a chain of command issue if you have your minister continuing to perpetuate untruths or misinformation in the public arena? Dr Hawke-The Acting Chief of the Defence Force had had that discussion with the minister. That was perfectly appropriate and proper, in my view. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 19 Senator FAULKNER-Yes, but what are your responsibilities here? Dr Hawke-This is a chain of command issue; it is an operational issue. Senator FAULKNER-If the minister is in the public arena making statements that are to your knowledge by this stage palpably untrue, why is that a chain of command issue? Dr Hawke-But they were not palpably untrue at that stage. I was aware that CDF held to his original view, so it was a matter within the Australian Defence Force. Air Marshal Houston as Acting CDF was asked for his view, I think by the minister, and he told the minister. And I thanked him for telling him. Senator FAULKNER-Given that you are one of very few people-literally a handful of people-in Australia who know about this, you do not think that you have any responsibilities in relation to your advisory role to government and the Minister for Defence to take any action? Dr Hawke-Not on an operational issue, no. I continue to hold the view that this was an operational issue and was more properly a matter for discussion between the military side and the minister. Senator FAULKNER-But this is about matters that were patently untrue. Dr Hawke-But these were matters within the confines of the ADF. Senator FAULKNER-They were not within the confines of the ADF. Dr Hawke-They were from my point of view. I take a different view on the photographs and I take a different view on the ONA report, and I pursued those. Senator FAULKNER-Yes, but once you have been informed, with respect, Dr Hawke, these are matters that are drawn to your attention. The photographs are drawn to your attention-or you had taken an initiative, in fact, with Ms McKenry in relation to that. Dr Hawke-Yes, I did, and on the ONA report. But the difference here is the CDF had discussed this matter with the minister. It is an operational issue-that is appropriate. That is where I left it. Senator FAULKNER-What about the video? Tell us about the video. Did Ms McKenry advise you that there was no video support for the claims that children had been thrown overboard? Dr Hawke-I asked her about that on 11 October-if she knew about any videos showing children being thrown overboard from SIEV4. She said there were conflicting stories about it, but that she would check and report back. Later that day or early the next morning she told me that Brigadier Bornholt had made inquiries and that such a video did not exist. Early on 8 November Ms McKenry told me that Mr Scrafton had called to inform her that the government had decided to release the video taken by HMAS Adelaide of the SIEV4 on 7 October. She told CERTAIN MARITIME INCIDENT CMI 20 SENATE-Select Monday, 25 March 2002 me that the public affairs and corporate communications area was to make the necessary arrangements to release the video to the media by 12 noon, and a copy of that was provided to me around one o'clock that day. It was later, on 9 November, that Commissioner Mick Keelty of the Australian Federal Police rang to tell me that the AFP's Western Australian office also had videotape evidence of the SIEV4 incident. A copy of those tapes was provided to me by the AFP later in November, and I asked one of my senior people to view them and the separate tape that had been provided to me on 8 November by our public affairs area. Having viewed the tapes, that officer discussed them with me on 27 November. He commented that the tapes did not seem to show any evidence of people being thrown overboard but that they did show people jumping into the water as what he thought was part of a rescue process. Senator FAULKNER-I take you to page 11 of 13 of Major General Powell's report, which I think is the only place that your name is actually mentioned in the report. This is in the chronology. On Thursday, 11 October 2001 at 1637 it says: Ms McKenry forwards written statement from Mr Bloomfield to Secretary Hawke and Mr Scrafton explaining the sequence of events with respect to the photographs by email. Hawke acknowledges receipt of message, Mr Scrafton does not. Secretary Hawke asked if there was a video showing children being thrown into the water. McKenry subsequently reported to the Secretary that there was not. In relation to that subsequent report to the secretary, can we be clear when and how that report took place? Dr Hawke-I think she told me on the phone about that. It was not in writing. Are you talk- ing about the videotape now? Senator FAULKNER-Yes. Dr Hawke-As I said, later that day or early the next morning she told me that Brigadier Bornholt had made inquiries and such a video did not exist. Senator FAULKNER-Did you have any note of that? Dr Hawke-No, and then it came to my attention again on 8 November. Senator FAULKNER-But it is the subsequent morning, is it? Dr Hawke-It was either the same day or the next morning. Senator FAULKNER-By telephone? Dr Hawke-Yes, that is my recollection. Proceedings suspended from 10.50 a.m. to 11.03 a.m. CHAIR-Senator Faulkner, I understand at this point you want to pause or rest; is that right? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 21 Senator FAULKNER-I am happy to fit in with government senators. I do not want to dominate things; I can come back to it later. Senator BRANDIS-Dr Hawke, it came through loud and clear during your evidence that there is a strict line of demarcation between operational matters, which are the responsibility of the CDF, and departmental matters, which are your responsibility. It is a line of demarcation that you strictly observe? Dr Hawke-Yes. I suspect I have a very pure view of that. Senator BRANDIS-You're a purist? Dr Hawke-On this issue. Senator BRANDIS-And is it also a line of demarcation that, in your experience, Admiral Barrie strictly observes? Dr Hawke-Yes. I have given to the secretariat a copy of the paper on the diarchy which goes to these issues. Senator BRANDIS-Is that this document? Dr Hawke-No, it is a paper that I gave to the Royal United Services Institute on 1 May 2000. It is quite a detailed exposition of the history of the issue and where it is now. Senator BRANDIS-This incident, the SIEV4 incident, was strictly an operational matter? Dr Hawke-Yes, in my view, with the exceptions that I have made about the ONA report, the photographs, the videotape where I had a direct role. The other issues, in my view, were strictly within the confines of a military operation confined to the chain of command directed by CDF. Senator BRANDIS-This being, subject to those caveats, strictly an operational matter, the line of reporting to the minister was through the CDF, Admiral Barrie? Dr Hawke-Direct from CDF to the- Senator BRANDIS-Direct from the CDF. Dr Hawke-On occasions I am aware of where CDF asks other people to field issues or questions and to respond to the minister, but that is the direct line of accountability, from the minister to CDF. Senator BRANDIS-And we know-and you have reminded us again this morning-that Admiral Barrie was, at all times relevant to this inquiry, of the view that children had been thrown overboard from the SIEV4 and he remained of that mind until well beyond the election. Dr Hawke-Correct. CERTAIN MARITIME INCIDENT CMI 22 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-According to this chart which was annexure C to the Powell report, there is what is described as a secondary link to the Minister for Defence through the Head of Strategic Command, Air Vice Marshal Titheridge. Is that right? Dr Hawke-Yes. Senator BRANDIS-And we know from the Powell report that Air Vice Marshal Titheridge was of the view that children had been thrown overboard until at least 25 November 2001. Dr Hawke-If that is what he said, I accept that. That goes to my view that I mentioned to you earlier, without having focused on this, that CDF sometimes tasks other officers, particularly the Head of Strategic Command, to talk direct to the minister on such issues. Senator BRANDIS-And although you observed strictly the line of demarcation in relation to operational matters, you have told us that you had, as one would expect, informal conversations with the CDF in the relevant period, including conversations in relation to this matter? Dr Hawke-Yes. Senator BRANDIS-And I assume that during the course of those informal conversations Admiral Barrie would have expressed to you the view that he had that children had been thrown overboard? Dr Hawke-That was his continuing belief. Senator BRANDIS-And the lines of reporting to the minister on the departmental side of the demarcation line were all through you? Dr Hawke-We did not speak to the minister about this issue; we spoke to some of his staff and that is a fault in the process that I hope won't occur again. Senator BRANDIS-What I am trying to do, Dr Hawke, is to identify the people on either side of the line of demarcation most proximate in the reporting chain to the minister. As I understand the position, in relation to an operational matter, those people were first and foremost the CDF- Dr Hawke-Yes. Senator BRANDIS-secondarily, on occasions, the Head of Strategic Command- Dr Hawke-Yes. Senator BRANDIS-and, in relation to non-operational matters, you? Dr Hawke-Yes. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 23 Senator BRANDIS-And all of those people were, at all material times, of the belief, however founded, that children had been thrown overboard? Dr Hawke-I am not aware of all of the other views, but I am aware of Admiral Barrie's view. Senator BRANDIS-All right. We will ask Air Vice Marshal Titheridge separately. One relevant circumstance that has not been brought out in Senator Faulkner's questions so far is that a federal election was called on 5 October 2001, wasn't it? Dr Hawke-Yes. Senator BRANDIS-And, from that time on, were the caretaker conventions applied? Dr Hawke-Yes, from the issuing of the writs. Senator BRANDIS-In terms of the volume of communication between the Department of Defence on both the operational side and the departmental side, and the minister's office, what was the effect of the caretaker period having commenced from 5 October? Dr Hawke-We would have put out instructions within the organisation about the caretaker period. May I just mention one other thing: the writs were actually issued on 8 October. That is important because I was involved in discussions with a senior Papua New Guinean official and Mr Moore-Wilton on that morning before the writs were issued. Senator BRANDIS-And they were issued at noon, weren't they? Dr Hawke-Yes, noon. Senator BRANDIS-So the caretaker period commenced at noon on 8 October? Dr Hawke-On 8 October. Senator BRANDIS-And from noon on 8 October, can you tell me please, in terms of the extent of communication between the department and the minister, what the effect of the commencement of the caretaker period was? Dr Hawke-We would have continued to put forward routine matters, but we would also have distributed, probably the week before, our view of the caretaker conventions throughout the organisation about what people could and could not do-on 8 October. That would have included a reference point to somebody senior if people had any questions or issues about that. I would be quite happy to table that. Senator BRANDIS-Could you find that document for us, Dr Hawke, and table it? Dr Hawke-Yes. CERTAIN MARITIME INCIDENT CMI 24 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-I imagine that one of the principles that governs communication between civilian and military personnel on the one hand and a minister on the other hand during the caretaker period is that on matters of political sensitivity there is a restriction on the level of communication. Is that so? Dr Hawke-That is correct. If there are urgent decisions or matters that have to be taken by the existing government, normally those matters would be discussed with the opposition as well. Senator BRANDIS-Senator Faulkner put a whole series of questions to you along the lines of: `Come on, Dr Hawke, this is a matter of great political sensitivity.' Let it be assumed, for the sake of discussion, that it was a matter of great political sensitivity, this was the sort of matter that, during the caretaker period, you or your officers-or indeed the military officers-would have been prohibited by the caretaker conventions from discussing with the minister's office. Isn't that so? Dr Hawke-Well, it turns out to be a particularly sensitive political matter but at the time it wasn't. As I mentioned in my opening statement, from the 12 October until, I think, about 8 November, this issue was not on anybody's radar screen. Senator BRANDIS-It was not on the radar screen in any event? Dr Hawke-Yes. Senator BRANDIS-When it emerged on the radar screen, it emerged in the character of a politically sensitive issue which, during an election campaign, you and your officers were prohibited by the caretaker convention from discussing with the minister's office. Dr Hawke-I wouldn't say `prohibited', because we did. Our role was to provide factual advice about what had happened. What they do with that is up to the minister and the minister's office, of course. Senator BRANDIS-I will withdraw the word `prohibited'. Am I right in understanding that there was a greater constraint upon you than there would have been outside an election environment? Dr Hawke-Yes, that is correct. We would not have continued to conduct the normal business by way of the ADF or the department with the minister during that period. Senator BRANDIS-That was a constraint of which you were very properly conscious? Dr Hawke-Yes. Senator BRANDIS-Dr Hawke, I want to direct your attention to some evidence that the CDF gave to the Senate Defence estimates committee hearing on Wednesday, 20 February 2002. It may well be that you cannot assist me with this; if you cannot, I will ask someone else. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 25 At page 72 of the Hansard of that day, Admiral Barrie was addressing Defence involvement in these people-smuggling operations. He said: However, for these events it was a new turn. We had not seen it before, although I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. Can you tell us what information the department had about the level of briefing being engaged in by the people smugglers at the ports of departure? Dr Hawke-I know nothing about that. That would probably be a question for the Head of Strategic Command, Air Vice Marshal Titheridge. Senator BRANDIS-I will direct those questions to him. Dr Hawke, it is right to say, isn't it, that Defence assumed this role of border protection from Customs from the time of the Tampa incident on 26 August? Dr Hawke-I think that is correct. Certainly there was a specific decision by the government that the Defence Force would undertake this sort of activity around that time. Senator BRANDIS-With this being from that point on a strictly military activity engaged in by a joint task force, was that strict line of demarcation observed from the very start? Dr Hawke-As far as I am aware, yes. Senator BRANDIS-Dr Hawke, you said in response to Senator Faulkner that this was a different set of circumstances from previous SIEV incidents because the people on the SIEV4 had lifejackets on. What do you draw from that? Dr Hawke-That is just one of the things I recalled, that this was a different set of circumstances to the prior vessels. This was the first occasion on which people had lifejackets and they had them on. Senator BRANDIS-And you are aware, aren't you, that the people on the vessel were wearing those lifejackets at a time before the vessel was said to be in distress or was sinking? Dr Hawke-I was aware of that, yes. That is just something that I recall from the time, for some reason, that this was quite a different set of circumstances to what had happened before. Senator BRANDIS-Presumably, they were wearing the lifejackets for a reason. Dr Hawke-I guess so. Senator BRANDIS-If the boat was not sinking, there must have been another reason, other than rescue from a sinking ship, for them to be wearing the lifejackets? Dr Hawke-You could draw that influence. CERTAIN MARITIME INCIDENT CMI 26 SENATE-Select Monday, 25 March 2002 Senator BARTLETT-You mentioned before about having a purist view about the differentiation between your role and the role of the commander of the defence forces. Could you just elaborate a bit further on what you see as that separation? Dr Hawke-The CDF and the secretary have both separate and joint roles and responsibilities. Among other things, the CDF is the principal military adviser to the minister and he is responsible for exercising full command of the Australian Defence Force. In other words, as I think I referred to earlier, he-not the single service chiefs, as some people think- commands operations. I am the principal civilian adviser to the minister, and CDF and I have joint responsibilities for the administration of the Defence Force, for strategic assessments, long-term capability planning that conforms to the government endorsed strategic assessment, providing intelligence, and effective liaison with other departments on national security matters. The essence of the evolution of this into its current state is set out in the paper that I have given to the committee secretariat in some detail. Senator BARTLETT-What is the role of the media liaison unit within the Department of Defence? Dr Hawke-That media liaison unit operates, obviously, in conjunction with the minister's and parliamentary secretary's offices and their media advisers. It is to provide a single point of contact on issues relating to public affairs and corporate communications. There is a particular position in that called the military public affairs adviser, staffed by a military officer, and during the course of these events that was occupied by Brigadier Gary Bornholt. Senator BARTLETT-Can you elaborate a bit further on the issue of the caretaker convention concept, which was just explored previously, and the greater constraints that apply in terms of the nature of communications between the departmental officials and the minister's office in terms of what would be appropriate and inappropriate types of contact? Dr Hawke-It is normally inappropriate for governments to take major decisions or to decide on new appointments during the period. They are a couple of the things that governments traditionally have not done. Where those issues are required for some matter of urgency or priority, the norm is that they be discussed and agreed with the opposition before any such announcement is made. Senator BARTLETT-In essence, if I heard it properly, you agreed with what Senator Brandis was suggesting-that there is a greater constraint that applies in terms of just communications- Dr Hawke-That is correct. The normal daily level of flow between Defence and the minister would have reduced during this period. Senator BARTLETT-And that would apply both ways-contact from the minister's office or his staff with the department? Dr Hawke-Both ways, yes. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 27 Senator BARTLETT-Even in the minute that was tabled before from Mr Bloomfield-and amongst a lot of documents that we have got and certainly amongst a lot of the other documents we have in evidence that was given to estimates committees-there was fairly assertive contact from the minister's office and his staff with a lot of people within the defence department requesting various things or directing people to do various things or not to do various things. Is that sort of thing appropriate during a caretaker period? Dr Hawke-You would have to form your own view about that. It is certainly quite allowable within the caretaker rules. Senator BARTLETT-Everything is allowable in that there is probably nothing anyone can do if it is breached, but I am asking you for your view about whether it is appropriate. Dr Hawke-I did not see anything inappropriate. Senator BARTLETT-Okay. There has been some comment more broadly-moving outside this specific incident-about the greater control over the ability of defence department personnel as well as defence personnel themselves, maybe officials et cetera, to be able to communicate with the media and about the greater requirement for everything to go through the minister's office. Was that a deliberate policy adopted under Minister Reith, to constrain communications more fully? Dr Hawke-That was a policy direction taken by Minister Reith and his private office. There was a relevant Departmental Instruction (General) issued to provide guidance and advice on that approach. Senator BARTLETT-Is that the one titled `Public Comment and Dissemination of Information by Defence Members'? Dr Hawke-That is correct. There is a new version of that that was cleared on Friday, I think, which probably has my and CDF's joint signatures on it today. I am happy to get that for you. Minister Hill is taking a quite different approach from that taken by the former minister and his staff. Senator BARTLETT-What is the rationale for the different approach? Dr Hawke-I think he has a much more flexible approach and he also has reintroduced the briefings on operational matters by the military public affairs adviser to the media and others. Senator BARTLETT-Again, in terms of the role of the Public Service, there is another old convention, if you like, about the impartiality of the Public Service and the prevention of it being politicised. Are you a purist in relation to that one as well? Dr Hawke-Yes, I am. CERTAIN MARITIME INCIDENT CMI 28 SENATE-Select Monday, 25 March 2002 Senator BARTLETT-Have you heard of concerns expressed during the period last year about defence personnel being more politicised as a consequence of that media approach that was adopted? Dr Hawke-They were not raised with me. Senator BARTLETT-Just sticking to this incident for a moment, there was a suggestion made in one of the documents we received-and, given that we have not published them yet, I probably should not go into them in detail, but there was certainly an assertion-that, for example, for Commander Banks to have given interviews with the media during that period was inappropriate or in contravention of directions. Dr Hawke-I am aware of that, yes. Senator BARTLETT-Is that the case? Dr Hawke-That is correct. Senator BARTLETT-So the ability for any defence personnel, or even the Defence Media Liaison Unit, to talk directly about what happened was prevented because of the policy ap- proach adopted by Minister Reith that all comment must go through him? Dr Hawke-That was the decision he took. From memory, there was specific guidance issued on this operation. Senator BARTLETT-And the fact that not just individual defence personnel but the department's own Media Liaison Unit were not able to comment on any of these things directly- Dr Hawke-They did not comment directly, but they were tasked with providing information. For instance, I think it was Defence, rather than the minister's office, that actually released the photos. Senator BARTLETT-They were tasked by the minister's office to release them? Dr Hawke-And the same with the videotape, from my recollection. Senator BARTLETT-Again, that was not done until authorised by the minister's office? Dr Hawke-Correct. Senator BARTLETT-Apart from this incident, there were a lot of other examples in the media of commentary about particular things happening. For example, there were some allegations-quite severe allegations-purporting to quote sailors on the Manoora about inappropriate behaviour by the boat people. Is anything done when that sort of thing appears, apparently in contravention of the directives applying at the time? What happens when that sort of commentary is provided to the media? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 29 Dr Hawke-I think that would be more appropriately addressed to the Maritime Commander. I am not aware of the detail of those incidents. I am aware generally of what you say. Senator BARTLETT-Okay. So, if there are violations, or apparent violations, of Defence instructions, what course of action is taken? Dr Hawke-They would normally be pursued by the Public Affairs and Corporate Communications division. But the new Defence instruction provides much more flexibility in that regard. Senator BARTLETT-In terms of what we are talking about, which is the period last year, not just this incident but- Dr Hawke-They were restricted. Senator BARTLETT-Were any inquiries undertaken by the Public Affairs and Corporate Communications division? Dr Hawke-I would have to check that. I just do not know. Senator FAULKNER-Dr Hawke, you made the point that this was not on the radar screen-I think they were your words-after 12 October-this is the question of the photographs, if you like-until later in November. I do not want to put words in your mouth, but I think that was the thrust of what you were saying. Dr Hawke-Yes, I said something along those lines. Senator FAULKNER-Would you agree, though, if people had realised that the photos did not actually relate to children being thrown in the water but, in fact, were of the sinking SIEV4, it would very much have been on the radar screen? Dr Hawke-That could well be the truth. As I said to you, I still feel that I should have done more on that particular issue. I should have discussed it directly with the minister, and I should have put it to him in writing. I absolutely agree with you. That could have been the case. Senator FAULKNER-So that point is reasonable as far as it goes. Dr Hawke-I am very conscious of it. Senator FAULKNER-You are very conscious of that? Dr Hawke-Absolutely. I should have done that. Senator FAULKNER-But that comes back to my point. You say, `Well, it is not on the radar screen. Nothing happens.' It sure as hell would have been on the radar screen if someone had pointed out that the photographs did not relate to children who had been thrown overboard. CERTAIN MARITIME INCIDENT CMI 30 SENATE-Select Monday, 25 March 2002 Dr Hawke-You are entitled to make that assessment. Senator FAULKNER-I think you are agreeing with that assessment, aren't you? Dr Hawke-It could have been, yes. Senator FAULKNER-But those who are in possession of the information, including yourself, who knew it did not relate to the incident it was alleged to relate to, did not do anything- Dr Hawke-Did not do enough. Senator FAULKNER-That is your view that you did not do enough. I am happy to go with that. You did not do enough to correct the public record. Dr Hawke-That is correct. I accept that. Senator FAULKNER-You would not accept for one minute that just because you happen to be in a caretaker period no correcting information can be given to a minister. Dr Hawke-No, it was a factual issue. I agree with you on that. Senator FAULKNER-Yes. Dr Hawke-I should have done it. Senator FAULKNER-So the caretaker period, in this sense, has got nought to do with whether the matter was corrected or not? Dr Hawke-It is not relevant to this issue-relating to the photographs. That is correct. Senator FAULKNER-When did you receive a copy of the Powell report, Dr Hawke? I am aware of when it goes to CDF. I think we have been informed previously of when it goes to CDF, but when did you receive a copy of it? Dr Hawke-On 13 February 2002. Senator FAULKNER-How would such a report of a routine inquiry come through to you normally, or would it? Dr Hawke-No, it would not. My recollection of this is that there were two copies only of this report held by CDF. Then I recall a discussion between me and the CDF about the report, at which time he made a decision to forward one of the two copies to Mr Moore-Wilton for use in the context of Ms Bryant's separate inquiry. Senator FAULKNER-That date was? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 31 Dr Hawke-That would have been in December. Major General Powell's report is dated 14 December, so it would have been around that time. Senator FAULKNER-You receive it on 13 February 2002. Dr Hawke-That is right-after the PM tabled it in the House of Representatives. Senator FAULKNER-When did you read it? Dr Hawke-Shortly thereafter. I did read parts of it. CDF gave me the report for a short period after Major General Powell had completed it, and I read through it, looked at the recommendations and handed it back to him. Senator FAULKNER-So you had read it a lot earlier. Dr Hawke-I skimmed it; I could not say I had read it thoroughly at that stage. Senator FAULKNER-When was that? Dr Hawke-That would have been on or around 14 December. I was interested in the recommendations. Senator FAULKNER-That is a bit different, isn't it? You physically do not have a copy of the report, but you have read it. Dr Hawke-I skimmed it; I did not actually read the report. Senator FAULKNER-You skim it around 14 December. Dr Hawke-Yes, that is true. Senator FAULKNER-And you handed it back to CDF. Is your memory jogged about what occurs in relation to the important meeting between Minister Reith and Air Marshal Houston? Dr Hawke-No. Senator FAULKNER-You did not read it that closely? Dr Hawke-No. I basically was interested in the recommendations at the back of the report. What were we going to do about this was what was on my mind. Senator FAULKNER-You read it closely after it was tabled in the parliament. Dr Hawke-Yes. Senator FAULKNER-Were you concerned when it was tabled in the parliament that the crucial-you did not notice that omission in December- CERTAIN MARITIME INCIDENT CMI 32 SENATE-Select Monday, 25 March 2002 Dr Hawke-No, I did not notice it. Senator FAULKNER-But did you notice the omission when you read the report? Dr Hawke-No, I did not. I did not notice that until Brigadier Bornholt drew it to my direct attention on 15 February. Senator FAULKNER-That is why I am asking you. But you had read it before then. Dr Hawke-I read it when I got it. Senator FAULKNER-On the 13th. Dr Hawke-Yes-on the 13th or 14th, around that time. But I did not know. I did not appreciate the point that Brigadier Bornholt made to me until he made it to me. Senator FAULKNER-But you were an indirect party to that, weren't you, in that you had been informed very soon after Air Marshal Houston? Dr Hawke-Yes, I was informed the next morning. Senator FAULKNER-That is a pretty crucial piece of information, isn't it? Dr Hawke-Again, it was an operational issue. I am sorry to keep harping on this, but it is a fact of life. Senator FAULKNER-We have gone through that. I do not want to go back over it again. I think we have defined what `operational' means, and I think you and I have a clear understanding of that and probably agree. But that does not alter the fact that you are informed on 8 November about the Bornholt- Dr Hawke-About Air Marshal Houston's discussion with the minister. Senator FAULKNER-Yes, the Air Marshal Houston-Minister Reith discussion, which Brigadier Bornholt was also a party to. You are told about that on 8 November. You skim a copy of General Powell's report on 14 December, you read it on 13 February, but it still takes Brigadier Bornholt to draw this formally to your attention. Given that you are informed on the 8th, there is an involvement beyond even your strict definition of operational questions, isn't there? It is a gaping hole, isn't it? Dr Hawke-No, I do not think it is. Air Marshal Houston says he told the minister. I am a bit unsure what you expect me to do with that. Senator FAULKNER-I know that Air Marshal Houston told the minister. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 33 Dr Hawke-I am unclear about your expectation. Are you saying I should then have written to the minister, or rung the minister and raised it with him? Because I did not see any need to do that. Senator FAULKNER-Dr Hawke, I am drawing your attention to the fact that it is not in General Powell's report. Dr Hawke-Yes. Senator FAULKNER-A report that you-we now know, even though you did not indicate it to us earlier-skimmed on 14 December and read on 13 February. Dr Hawke-That is right. But I was not looking for that. Senator FAULKNER-But it takes the brigadier to- Dr Hawke-That is right, because the brigadier was involved in that direct conversation with the minister. Senator FAULKNER-Yes, but you were told about it the day after the direct conversation. Dr Hawke-I still do not understand your point. Senator FAULKNER-I am not making a point; I am asking- Dr Hawke-What are you saying I should have done? Senator FAULKNER-I am asking about the obvious weakness in relation to the Powell report and whether you, one, identified it-which I think you have said you did not- Dr Hawke-I did not. Senator FAULKNER-and, two, if you had identified it, what action would you have taken. I cannot really ask that question, because-even though you had two goes at it-you did not identify it. Dr Hawke-When it was drawn to my attention, I acted immediately. But I do not regard this issue as an important one for me, even though you do. Senator FAULKNER-I do consider it as an important issue for the Secretary of the Department of Defence, but you and I just have to disagree on that particular issue. Could you, for the benefit of the committee so that we are clear now for the record, outline in relation to the two issues-claims of children being thrown overboard, one, and photographs purporting to relate to that incident, two-what contact you had with the Department of the Prime Minister and Cabinet and the Prime Minister's office subsequent to 11 October 2001? CERTAIN MARITIME INCIDENT CMI 34 SENATE-Select Monday, 25 March 2002 Dr Hawke-I have had no contact with the Prime Minister, the Prime Minister's office or the Prime Minister's department. The only time I recall having a discussion with Mr Moore-Wilton about this issue was on the afternoon or the evening of 8 November about the Chief of Navy statement that day. Senator FAULKNER-That is one contact. Dr Hawke-Yes. That related to the Chief of Navy statement. That is the only contact I had. Senator FAULKNER-Which related to whether or not children had been thrown overboard and the reporting thereof. Dr Hawke-That is the only contact I had with Mr Moore-Wilton. I have never discussed the matter with the Prime Minister or the Prime Minister's office. Senator FAULKNER-Apart from that one instance. Dr Hawke-No, that was the department. You asked about the Prime Minister and the office too. I never had any discussion with them about any of these issues. Senator FAULKNER-Yes, and I asked about the Department of the Prime Minister and Cabinet. Dr Hawke-That is right. Senator FAULKNER-And that is limited to one contact. Dr Hawke-One conversation with Mr Moore-Wilton. That is the best of my recollection. Senator FAULKNER-A technical point that was being talked about previously is this issue of life jackets. I do not think it is particularly significant, but in the cable that was tabled by Admiral Barrie-I think it is 081530G/ADE/Adelaide-you would notice that it says, `Supplied life jackets to those SUNCs without.' Did you examine the cable closely enough to be aware of that? Dr Hawke-No. Senator FAULKNER-As you know, the communications strategy within Defence has received a bit of publicity around this particular issue. Was there any Department of Defence- departmental, as opposed to ADF: I am terribly conscious of the diarchy issues now- involvement in the broad communication strategy that was developed for Operation Relex? Dr Hawke-Correct. Senator FAULKNER-Who formalised the final strategy? Who agreed to it? Dr Hawke-You would have to ask CDF that; I suspect he did, but I do not know. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 35 Senator FAULKNER-I do not think we have this. Would it be possible to get a copy of the final communications strategy? In this paper war, it may be in some of the recent material that has been provided to us, but I have not seen it. Dr Hawke-We will take that on notice. Senator FAULKNER-I would appreciate that. Are you aware of the special arrangement that applied in relation to the minister's office with this communications strategy, with Operation Relex? Dr Hawke-I knew that there was one, but I am not aware of the details. Senator FAULKNER-Would you be able to outline that for the benefit of the committee? Dr Hawke-No. Senator FAULKNER-Of course, one of the implications of the special communications strategy is that it applies to a period when the caretaker provisions were in place. Dr Hawke-I think it was probably in place before then, but I do not know. Senator FAULKNER-I am not sure that it was in place beforehand. You might take that on notice and provide a precise interface between the time when the caretaker provisions applied and the time when the communications strategy applied. I do not expect you to know that, but it might be helpful if you would take it on notice. This was a fairly direct and blatant link, I would have thought, with the election period itself, in relation to the role of the ministerial office. Was any thought given by the department to seeking advice on how the caretaker provisions might have applied to such a communications strategy-in my view, this would not have been an ADF responsibility; it would have been a departmental responsibility; your responsibility-given the special role that was required of the minister's office? Dr Hawke-Not that I am aware of. Senator FAULKNER-No advice was sought from Prime Minister and Cabinet? Dr Hawke-Not that I am aware of. Senator FAULKNER-Was any thought given to that? Dr Hawke-I do not recall. Senator FAULKNER-If there was, would you know? Dr Hawke-I would expect to. I am happy to check for you. Senator FAULKNER-I will very briefly go back to the issue of the video. Dr Hawke, when were you aware that the videotape, which you dealt with separately in your opening statement- CERTAIN MARITIME INCIDENT CMI 36 SENATE-Select Monday, 25 March 2002 and I understand why you did that-does not actually show any children being thrown overboard? Dr Hawke-I imagine it was around 8 November. Senator FAULKNER-I am asking you. Dr Hawke-That is what I am saying. You will recall that I said to you that I had checked with Jenny McKenry on 11 October. She had informed me of Brigadier Bornholt's inquiries, and I was told such a video did not exist on 11 October. It was then on 8 November, when the decision was made to release the video, that I was further informed about the matter. Senator FAULKNER-And that information came from whom? Dr Hawke-Jenny McKenry, the head of the Public Affairs and Corporate Communication Division. Senator FERGUSON-I have only a couple of brief questions, Dr Hawke, but I think they are particularly relevant. One is in relation to the photographs and the video that Senator Faulkner has been talking about. Isn't it a fact that no-one in the government at any time claimed that they formed the view that kids were thrown overboard on the basis of the photos or the video and that, in fact, their claim was made on the basis of information provided by the ADF? Dr Hawke-That is a correct interpretation. Senator FERGUSON-Within the period of time we are talking about-from the time of the event until after the election-isn't it true that that information was never withdrawn, corrected or amended in any way? Dr Hawke-Except for the discussion between Air Marshal Houston and the minister. Senator FERGUSON-On the 8th? Dr Hawke-No, I think it was the 7th. You will recall that we also endeavoured to find the source of the ONA report, but that was not a source from within Defence. Senator FERGUSON-It was raised earlier by Senator Brandis that, from 26 August onwards, the ADF first became involved in the activities of illegal entry vessels coming into Australia, that it was a new activity for them and they were doing the sort of work that they had not undertaken before. Dr Hawke-That is true, although that issue was raised in the Defence white paper as an issue that the Australian Defence Force would be likely to be involved in in the future, along with a series of other particular issues. Senator FERGUSON-But this was the first time they had actually been involved in it? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 37 Dr Hawke-Yes, that it was done that way; that is my recollection. Senator FERGUSON-In fact, it was the first time that any Defence Force personnel had been involved in the apprehending of these vessels when there were probably some emotional overtones. Dr Hawke-That would be my recollection. Senator FERGUSON-I want to quote a line from a story by Robert Garran in the Australian on 9 November. He said: The navy has severely embarrassed John Howard and two senior ministers by undermining their claims that asylum- seekers had thrown children overboard to "emotionally blackmail" naval officers. Dr Hawke, in your view, as far as emotional blackmail is concerned, wouldn't it be just as much an emotional blackmail to actually threaten to throw children overboard as to actually throw them into the water? Dr Hawke-I do not know why my view is important, Senator, but my guess is that some Navy people would have had that view. Senator FERGUSON-That, in fact, whether or not the children actually went into the water or whether they were threatened to be thrown in the water and hung over the side of the vessel-it could, in fact, be more traumatic, couldn't it? Dr Hawke-The Chief of Navy might have better advice than I have on that. Senator FERGUSON-We will pose that question to the Chief of Navy. Thank you, Dr Hawke. Senator JACINTA COLLINS-Just a couple of brief issues, Dr Hawke. Can I go back to our copy of your statement this morning and just clarify the point about your understanding of what was to occur with Ms McKenry? Dr Hawke-Yes. Senator JACINTA COLLINS-You indicate that: I asked that this advice be put in writing Dr Hawke-Yes. Senator JACINTA COLLINS-Is it your view that that advice was put in writing? Dr Hawke-Yes, although it just referred to the lengthy discussion that they had had that morning; it did not actually put in writing the issue relating to the photographs-that they were incorrectly portrayed; it did not do that. My understanding of why that is is because what Mr Scrafton asked for was what Ms McKenry sent forward. CERTAIN MARITIME INCIDENT CMI 38 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-So Ms McKenry sent forward what Mr Scrafton asked for rather than what you, Dr Hawke, the secretary of the department, asked her to do? Dr Hawke-That is right. Senator JACINTA COLLINS-So, as far as your instruction was concerned-that this issue be put in writing to the minister's office-was that instruction carried out? Dr Hawke-Not to my satisfaction. As I said earlier, and I repeat it now, I think that I should have actually spoken directly to the minister and put that advice in writing myself. Senator JACINTA COLLINS-Dr Hawke, I understand that, in retrospect, it is nice to reconsider these things, but if your instruction to Ms McKenry to put this matter in writing to the minister's office was not carried through in these emails, why, when you responded to Ms McKenry, `Noted. Thanks,' didn't you raise that point at that time? Dr Hawke-No, I did not. As I said to you, I am accountable for that. Senator JACINTA COLLINS-Pardon? Dr Hawke-I regard myself as being accountable for that, not her. Senator JACINTA COLLINS-So you agree with my brief assessment that none of the material, including this minute, actually clarifies what those pictures depicted? Dr Hawke-Absolutely. Yes, I do agree with that. Senator JACINTA COLLINS-Thank you. Going back then to Ms McKenry's understanding of Mr Scrafton's request, what was it that Mr Scrafton was wanting Ms McKenry to put into writing? Dr Hawke-I think you would have to ask her that. My understanding is that she responded by sending across what he had asked for. Senator JACINTA COLLINS-Okay. There is also a comment here that: Unfortunately I have discovered that photos and captions are also on the unrestricted system. Do you know what that pertains to? Dr Hawke-I assume that that means one of the in-house computer systems. Senator JACINTA COLLINS-She has indicated that: Unfortunately, I have discovered- Are you aware of a concern about how far these photos had been disseminated or on what security basis? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 39 Dr Hawke-No. Senator JACINTA COLLINS-But you would agree that-I think you have already indicated-this email referring to `getting to the exact stuff' and `no-one can find his stuff' is hardly a response to a request from the secretary of the department to put it in writing to the minister. Dr Hawke-That is right; my intervention was in an endeavour to make sure that the facts were known and the record was corrected. That did not happen. Again, I say to you, I think that is my responsibility and accountability. Senator JACINTA COLLINS-Dr Hawke, I would also like to give you an opportunity to respond to some comments made by Mr Hendy in his statement in relation to this episode. Have you seen his statement? Dr Hawke-No. Senator JACINTA COLLINS-It goes to the issue of what communications occur within Defence and between Defence and the minister's private office. Mr Hendy says-and I will read the paragraph from his statement: A lot of commentary in Defence had to be verified because Defence was an organisation that lived on gossip and rumour. There was a systemic problem with checking of facts, and the organisation lacked discipline in dealing with facts, confidentiality and public commentary. In this case, when faced with a range of stories (particularly in relation to the photographs) the Minister's staff had to take everything they heard with a pinch of salt. Is that your understanding of the nature of communications between the Department of Defence-yourself as secretary-and the minister's office? Dr Hawke-I would have hoped we would do a little better than that; but if that is Mr Hendy's assessment, that is his assessment. Senator JACINTA COLLINS-Was this issue discussed in your briefing with former Minister Reith? Dr Hawke-No. Senator JACINTA COLLINS-So that did not pertain to your performance bonus. Dr Hawke-I did not say that I got a performance bonus; this was an assessment in respect of the current year. Senator JACINTA COLLINS-This is former Minister Reith's chief of staff commenting on the `children overboard' incident and saying that anything you hear from Defence you take with `a pinch of salt'. Dr Hawke-Mr Hendy has never discussed that issue with me. CERTAIN MARITIME INCIDENT CMI 40 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-Thank you. Mr Hampton's notes in the statements refer to the issue of whether the photos should be shown to the shadow minister. Are you aware of any discussion over what information should have been conveyed to the opposition during this period? Dr Hawke-No. Senator JACINTA COLLINS-Finally, you mentioned in your earlier comments that you were aware of Admiral Barrie's views on this incident, that you met him daily and had informal discussions. Are you able to apprise us of how Admiral Barrie discounted the reports-that we now know went to him-that raised concerns about the veracity of both the photos and whether the incident itself had occurred? Dr Hawke-I think he held to the view that the original advice put to him was correct. But you can ask him that. Senator JACINTA COLLINS-Dr Hawke, we know that he held that view, and that is what he told us in estimates as well. Dr Hawke-Yes, and that is what he told me. Senator JACINTA COLLINS-Then, one week later, he made his later statement. What I am asking you, though, is: on the basis of your direct discussions with Admiral Barrie, do you know-behind the fact that he maintained that view-how he discounted this other evidence? Dr Hawke-No, I do not. Senator BRANDIS-How could this guy be expected to know that? Senator JACINTA COLLINS-He had direct conversations with Admiral Barrie. CHAIR-Order! Senator BARTLETT-I want to go back to the line of questioning before when I was asking about the role of the Public Affairs and Corporate Communications division. From what you said before-and you can correct me if I am wrong-basically, they are not able to release information or make statements unless the minister or his office approves them, and that continues to apply even during the caretaker role-they are still subject to direction from the minister in relation to releasing any information at all about operational matters. Dr Hawke-Yes. Senator BARTLETT-Dr Hawke, you would be aware, I am sure, that the Sydney Morning Herald sent you some questions on 9 November, I think it was-just before election day-about this specific incident, which you chose not to respond to and all inquiries were directed through the minister's office. Is it normal procedure at those times that you would not respond to direct questions but would tell them to talk to the minister? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 41 Dr Hawke-It depends on the circumstances. Normally, I do not make a habit of going around and talking to the media. Senator BARTLETT-What if the media puts forward a direct, written question to you? Dr Hawke-That would normally go through the channels within the organisation. Senator BARTLETT-So it would normally go to Public Affairs and Corporation Communication? Dr Hawke-Yes. Senator BARTLETT-And their normal response is, `We can't say anything; you've got to ask the minister'? Dr Hawke-It might have been in this case. I do not recall the details of that case. Senator BARTLETT-Why would it be in this case but not other cases? Dr Hawke-I would have to check on the specific case you are raising. Senator BARTLETT-I appreciate your difficulty in that this is contained in a submission that we have not released so you cannot have seen it to respond to it. I am not trying to make you say something that did not happen but, basically, the response from Mr Bloomfield was again, `Can't release the information; you may wish to direct your inquiries to the minister.' Is that how they respond to all media inquiries? Dr Hawke-About those issues, yes. Senator BARTLETT-About anything to do with the Pacific solution activities? Dr Hawke-That is correct. They would have been handled by the minister's adviser. Senator BARTLETT-I presume this corporate communications division and the media liaison section are reasonably sizeable. What is the purpose of having a separate unit in the defence department if it is completely under the instruction of the minister before it can say anything? Dr Hawke-That unit came about as a result of a separate review of the function within Defence. The function was done in a disaggregated way, and there was a review of those issues which led to the recommendation to create the Public Affairs and Corporate Communications division. Senator BARTLETT-But what is the point in having a separate corporate communications division within the defence department if they are unable to do anything without the approval of the minister? CERTAIN MARITIME INCIDENT CMI 42 SENATE-Select Monday, 25 March 2002 Dr Hawke-They did other things as well but, at the end of the day, it is up to the minister as to how those issues are handled. Senator BARTLETT-You do not see any validity to the argument that is put forward in the submission we have received-which again we will hopefully release soon-that during the caretaker period Defence has an obligation to not act in a political manner and to just provide factual responses to direct questions seeking factual information. Dr Hawke-I do not believe that we did act in a political manner. Senator BARTLETT-Do you believe that with a direct written question seeking just factual information, not opinions or anything, about specific events it is not appropriate in a caretaker mode for the defence department to provide that information and to still be subject to curtailment by the minister at the time? Dr Hawke-I would have to look at the specific issue you raise, but if it were a factual issue normally we would have provided that. Senator FAULKNER-I am sensitive to the amount of time this has taken, Dr Hawke, but I want to ask you a question in relation to three issues: one, whether children were thrown overboard from SIEV4; two, whether the photographs that were published related to the incident; and, three, the fact that the video did not show children being thrown overboard. I wondered if you, in relation to each of those three issues, could indicate to the committee how you discharged your responsibility to ensure that accurate information was provided to the public and that the statements that were being made from government ministers on all those issues were corrected. Dr Hawke-On the issue of the children overboard, my understanding of that is that Defence did provide such advice; it came through the chain of command. It was an issue within the operational context, and that is where I left it. On the photographs, I asked questions about those two photographs and whether they represented what they were being portrayed as. I pursued those issues. My failure there was not to discuss that directly with the minister or put it in writing. On the videos, basically I explained my position: that I had a look at them and I had one of my officers have a look at them. The video was released on 8 November. As far as I am aware, there is nothing on it that shows any evidence of children being thrown overboard. Senator FAULKNER-Have you, as Secretary of the Department of Defence, at any stage put anything in writing about any of those three issues and, if so, when? Dr Hawke-No, I did not put anything in writing about those issues until I did my performance assessment when I made the comment that I made to you earlier, that I felt I should have told the minister. Senator FAULKNER-As I think is the normal course of events, this issue was contained within your personal- Dr Hawke-Yes, my self-assessment. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 43 Senator FAULKNER-Your self-assessment. And is that the only time that you have ever put these questions in writing? Dr Hawke-Yes. Senator FAULKNER-You met with former Minister Reith at this time, before the performance assessment? Dr Hawke-Yes, I did. Senator FAULKNER-It would be good to do a performance assessment of former Minister Reith. I do not want to labour this because of the time, but you might care to take this on notice for accuracy's sake because your submission does not go to these points-and I am not critical of that. I wonder if you could indicate to the committee what written advice on the three issues, if any, you are aware of going, firstly, from Defence to PM&C; secondly, to Minister Reith's office; thirdly, to Minister Reith; fourthly, to the Prime Minister's office; or, fifthly, to the Prime Minister. Dr Hawke-From within Defence? Senator FAULKNER-Yes. I am happy for you to take that on notice. I appreciate you might not necessarily be able to answer that in its entirety now. Are you happy to take that on notice? Dr Hawke-Yes, I will take it on notice. Senator FAULKNER-In relation to those advices regarding yourself, it might be useful to know if at any stage you were copied in or had drop copies sent to you or the like. I might ask you this specifically: do you actually receive copies of strategic command ministerial submissions? Dr Hawke-Not all. I would have seen some, but I am sure I have not seen all of them. Senator FAULKNER-There was one, of course, that went to Minister Reith that did not mention children being thrown overboard. You might check your records as to whether you received a copy of that. Was this matter discussed at any of the officials' meetings? I hear what you have said to us about your discussions with Admiral Barrie. Appreciating that, was it discussed at the Secretaries Committee on National Security, for example? Dr Hawke-These specific issues? Senator FAULKNER-Yes. Dr Hawke-Not that I recall. CERTAIN MARITIME INCIDENT CMI 44 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-Could you outline for the committee the full extent-I think you have said there was only one contact but I want to be clear on that-of the contact with Mr Moore-Wilton? That was on 8 November. Dr Hawke-On 8 November. That is my recollection. I do not recall any other contact with Mr Moore-Wilton about the matter. Senator FAULKNER-Can you just recall the nature of that communication? Were you able to communicate to Mr Moore-Wilton any information at that time? Dr Hawke-He rang me and asked whether I was aware. I said I was. I said that my understanding was that the Chief of Navy would be issuing a clarifying statement, and then some little time after that I rang back to tell him that that had happened and faxed a copy to his office. This was sort of early in the evening. Senator FAULKNER-So your only contact with Mr Moore-Wilton- Dr Hawke-On that issue. Senator FAULKNER-went to the so-called clarification of the Chief of Navy's statement and no other issues. Dr Hawke-No. Senator FAULKNER-To what extent do you think that there is a role for you, as Secretary of the Department of Defence, to be ensuring that there is accurate information being provided to the Department of the Prime Minister and Cabinet, on your part, or to the Prime Minister or the Prime Minister's office, given the amount of publicity that was effectively propagating misinformation on this issue for such a long period of time? Dr Hawke-Those matters were being discussed on an almost daily basis within the specific task force that was set up to handle these issues. I would have thought that they had received a full airing then. My view was that that was where those issues were being handled. Senator FAULKNER-I think, from what you have said, that you did not think you had any responsibility to correct statements that were palpably wrong that were made by ministers and the Prime Minister. You did not seen it as a responsibility of yours, given your state of knowledge, to ensure that those statements were corrected. Dr Hawke-I think I have already said that I regret not having discussed the issue directly with the minister and I regret not having put it in writing to him about the photographs. I took other direct action on both the videos and the ONA report. They were the issues in which I had a direct involvement. Senator FAULKNER-I know there has been some debate about changes that have occurred within Defence, and this has been touched on since Senator Hill has become the CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 45 Minister for Defence. This goes, as I understand it, to communications and the media. I think that is correct, isn't it? Dr Hawke-That is correct. Senator Hill reintroduced the military operational briefings and he has agreed to a different approach from the public affairs one. Senator FAULKNER-Has the detail of that been made public? Dr Hawke-I think the Defence instruction is signed off now. It will be promulgated, and I think he is considering a number of other issues which CDF would be best placed to advise you on. But I am happy to make available the Defence instruction that CDF and I agreed on late last week. Senator FAULKNER-Have you had a longstanding view that the level of secretaries' performance pay should be made public? Dr Hawke-Is that relevant to this inquiry, Mr Chairman? Senator FAULKNER-I think it is. Dr Hawke-It does not matter what my view is; it is basically an issue for the Prime Minister. Senator FAULKNER-But you do have a strong view on that, don't you? Dr Hawke-Yes, I do. Senator FAULKNER-Would you be able to share it with the committee? Dr Hawke-My view is that it should be made public, but I am not the decision maker. I am an adviser, not a decision maker on this matter. Senator FAULKNER-Are you able to share with the committee the outcomes of your meeting of 15 March? Dr Hawke-No, because there is no decision on that. It was 14 March, I think, with Minister Reith. The process is not yet completed in respect of this year. CHAIR-I do not want to prolong your ordeal any longer than necessary, Dr Hawke, but I have a few general questions and a couple of questions arising from the discussion that has been entered into this morning. Firstly, I am going to ask you if you will take a series of questions on notice, but let me forewarn you what they are before you answer. It seems to me that, for the purpose of this inquiry, it would be useful to get some context about operational arrangements. The questions that I have may not be appropriate to you, given the demarcation you have been careful to draw this morning between the defence forces and the department. But I have a series of questions which go to that and which go to the extent that we can be advised of what the rules of engagement were and so forth that relate to the circumstances around SIEV4. CERTAIN MARITIME INCIDENT CMI 46 SENATE-Select Monday, 25 March 2002 Dr Hawke-I think all of those issues could be addressed to the Head of Strategic Command. CHAIR-I will put them in more decipherable writing then and I will talk to him about it. Secondly, on the defence instruction about dealing with media, I think you and Admiral Barrie issued this instruction-the Defence Instructions (General)-on 8 August? Dr Hawke-Yes, that is the one that has been overtaken by the latest instruction. CHAIR-But that held in force during the period that we are looking at? Dr Hawke-Correct; it did. My recollection-and I have to check this-is that there was a specific guidance issued in relation to Operation Relex as well. CHAIR-Would it be possible for us to have a copy of that specific guidance note? Dr Hawke-I will check that for you. CHAIR-Can you recall the date on which that was issued? Dr Hawke-No, I don't. CHAIR-That will show though when you make it available to us. The changed situations under Minister Hill, in this respect, have they gone back to, effectively, what applied before this instruction was issued or are they a third way? Dr Hawke-Yes, they have, but I think they have gone further. CHAIR-They are a third way? Dr Hawke-Yes. He probably would not put it that way, but I understand what you mean. CHAIR-We will see this and we will make our own minds up but, in essence, are you able to say whether they are largely like they were before? Dr Hawke-Yes, but even more relaxed than they were before. CHAIR-Even more open? Dr Hawke-More flexibility. CHAIR-Just going to this instruction, point 15 says: Defence members are not to comment publicly or disseminate information about Defence policy or administration which could place in doubt their political impartiality or acceptance of the obligation to implement the policy of the elected government. What was the reason for that provision being inserted? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 47 Dr Hawke-I think that provision was there in the previous instruction. I would have to check that for you, but I think that has been a longstanding provision in that defence instruction. The one that you are talking about was not invented or written de novo by us; it was a derivation of a pre-existing instruction. But I will check that- CHAIR-It really is an injunction for people in the defence forces not to be party political, to keep their comments neutral, to always tell the truth- Dr Hawke-It applies to civilians as well. CHAIR-And in the defence department? Dr Hawke-Yes. CHAIR-And telling the truth is telling the whole truth, not concealing any truth, and not allowing a mistruth to stand by way of omission? Dr Hawke-I agree with you. CHAIR-This instruction-and I am going to ask you whether this is a new instruction- says that only members trained through the PACC will be authorised to speak to the media, and then only after clearance of talking points. Was that, at the time, a new instruction? Dr Hawke-That would have been new. I will check, but I suspect that that would have been new. CHAIR-So you have to go through a training program before you would qualify to be authorised to speak, and then you may not be authorised unless your talking points have been cleared? Dr Hawke-That was the intent of that paragraph. CHAIR-Cleared by whom? Dr Hawke-The instruction is in there-I think, by the Public Affairs and Corporate Communications executives in the states or at headquarters. CHAIR-Point 26, `Keeping the ministers' offices informed' states, in part: To ensure that the Government is not taken by surprise by issues that attract media attention, and which can damage the reputation of Defence, it is important that the private offices of our Ministers and Parliamentary Secretary are informed well in advance of any activities with the potential to arouse public of media interest. It goes on, but let me pause my quote at that point. I leave open the question of what might damage the reputation of Defence because I think, generally, there has been a lot of comment about that with respect to this issue and people make their subjective judgments. The part of this quote that I read you that I want to focus on now is where it says: CERTAIN MARITIME INCIDENT CMI 48 SENATE-Select Monday, 25 March 2002 ... it is important that the private offices of our Ministers and Parliamentary Secretary are informed ... What does that mean? Does that mean that you ring the office and you can talk to an officer on the minister's staff? Is that what it means? Dr Hawke-It would normally mean that that contact would be made through the public affairs and corporate communications area-they would do that liaison. But there is nothing to stop people from dealing direct if there is a particular issue. CHAIR-But when it says: ... it is important that the private offices of our Ministers and Parliamentary Secretary are informed- what is their `private office'? Dr Hawke-The ministerial media adviser is essentially what that is referring to. CHAIR-When one contacts the ministerial media adviser do you consider that is contact with the minister? Dr Hawke-Each minister tends to have different rules of engagement. Some ministers would regard it as such; Senator Hill does not. CHAIR-What was the situation applying at this time? If you spoke to the media adviser, was it regarded that you were passing information to the minister? Dr Hawke-Yes, we would have been working on the assumption that that adviser would have had any necessary discussion with the minister. That may be a wrong-founded assumption. CHAIR-But that is the assumption you were working on? Dr Hawke-That was the assumption we were working on-that is the reason for the point I made to Senators Faulkner and Collins earlier. CHAIR-Your department has not provided a submission to this inquiry and we are aware of a cabinet decision about that for departments. Is the reason you have not made a submission that cabinet decision? Dr Hawke-No, my letter was received before the government made the decision. As your secretariat will be able to say, we did not think there was any need to make a submission, but, as my letter said, we offered you all of the information we had and whatever witnesses you de- cided to access, the latter being with the concurrence of the defence minister. CHAIR-In your opening statement today you forthrightly and openly criticised your own actions as deficient-I note that. Have you been reprimanded in any way for that deficiency? Dr Hawke-Not yet. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 49 CHAIR-The question of performance pay is yet an unresolved matter? Dr Hawke-Correct. CHAIR-Did you consider at any stage that this would warrant resignation? Dr Hawke-Yes. CHAIR-And what was your consideration? Dr Hawke-I offered my resignation. CHAIR-To the minister? Dr Hawke-Yes. CHAIR-That was to Mr Reith? Dr Hawke-No; it was to Senator Hill. CHAIR-The fact that you are still sitting here with the glorious title of `secretary' suggests that he declined. Is that right? Dr Hawke-That may be the case; it may be that he is still considering the matter. CHAIR-I see. Has Mr Reith, in your discussions so far with him about performance pay, intimated any concern about the criticism you yourself have made of your performance on his behalf? Dr Hawke-No, he did not offer any criticism during our discussion. I have not spoken to him since then. CHAIR-Has he remarked on it? Dr Hawke-No. At the time I think he thought I was being a bit tough on myself. CHAIR-I see. I think in answer to Senator Faulkner earlier this morning you said-correct me if I have taken it down wrongly-that `you do not know that children were not thrown overboard'. Is that what you said? Dr Hawke-I said that I thought that was one of the purposes of this committee. I understand the balance of evidence over here, but I will be interested to see, as much as you will, what comes out in the course of this inquiry. I accept Senator Faulkner's view-if I am not verballing him here- CHAIR-I am sure he is capable of defending himself. CERTAIN MARITIME INCIDENT CMI 50 SENATE-Select Monday, 25 March 2002 Dr Hawke-that, on the balance of probabilities and the information here, children were not thrown overboard. CHAIR-Which was the conclusion of the Bryant and Powell reports- Dr Hawke-Yes. CHAIR-and is the latest view of Admiral Barrie? Dr Hawke-Yes, that is correct. CHAIR-Some of the questions I was going to ask about departmental roles during the caretaker period have been asked by other members of the committee, but just so that I can be sure-I think this was cleared up-you are not saying that the caretaker period precludes you from in any way correcting a misunderstanding or an untruth with the minister. Dr Hawke-I think it is even more important to do that at that time. CHAIR-Yes. The other thing you have referred to in your evidence is ONA. Did you contact it at any stage during this issue or did it contact you at any stage during this issue? Dr Hawke-No, I was not directly contacted, but my recollection is the Deputy Secretary of the Intelligence and Security Group, Mr Carmody-and perhaps there are others; I think there were others within Defence-had discussions with ONA officials. CHAIR-Should we ask Mr Carmody for that evidence or can you tell us at what time this was? Dr Hawke-I did not actually pursue who spoke to whom about that. I was primarily interested in satisfying myself whether or not the ONA report derived from Defence information. CHAIR-This is the ONA report referred to by the Prime Minister. Dr Hawke-I was satisfied that it did not originate from, or depend on, Defence written ad- vice in the intelligence arena. CHAIR-I do not want to go to what I would regard as being sensitive material of what might pass between Defence and ONA, but I want to ask you the question: can you tell us on what occasions ONA contacted the Department of Defence or the Department of Defence contacted ONA on this incident? Dr Hawke-I think ONA actually contacted Defence. That is my recollection of what happened. I think I am right in saying that Mr Carmody had a discussion with Kim Jones, the Director-General of the Office of National Assessments, but I will have to check that for you. If I were to take those on notice, I could provide on notice the answers without your having to call the witnesses. That is if you are just interested in who spoke to whom and when. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 51 CHAIR-Yes, please take those on notice. I am really interested in knowing whether your Mr Carmody told ONA that no children were thrown overboard. Dr Hawke-I do not know the answer to that. As I said to you, what I was pursuing was: was the ONA assessment based on advice from Defence? CHAIR-Yes. Dr Hawke-And I am told it was not. CHAIR-Senator Brandis asked you a question about people on the deck of SIEV4 wearing life jackets and invited you to agree with an inference that, if they were wearing life jackets before the vessel was sinking, that was an indication-I will be corrected if I have got this wrong, and I certainly invite the correction if I have got this wrong-that they may have had some intent to abandon ship before it sank. I think your reply was that you could possibly draw that inference. Dr Hawke-I did say that, but I think I also went on to say that might be something you would want to check with Chief of Navy, Commander Banks or other people. CHAIR-On the face of the facts put to you, it is an inference that you were invited to draw. Dr Hawke-The reason I raise it was I particularly remember it and the comment being made to me that this was quite different to the previous illegal entry vessels. CHAIR-Yes. Dr Hawke-This behaviour was quite different. CHAIR-But it is also true, isn't it, that at this stage deterring the entry of possible illegal vessels, turning them back and causing them to sail on to Indonesia was the primary purpose of the operation? In doing so, there is evidence that the Adelaide fired in front of this particular SIEV vessel, SIEV4, on at least three occasions-50 feet, 75 feet and 100 feet on different occasions-and passed close behind its stern et cetera in what might be regarded as, `Hear this: go back' sort of behaviour. Is it a reasonable inference to draw that all that type of activity could have led people on this vessel to put on their life jackets as well? Dr Hawke-I am not across the operational details. I would prefer you asked the captain or the Chief of the Navy about that issue. CHAIR-Sure. But if that behaviour occurred, and we will discover that, would that be a reason to put on a life jacket? Dr Hawke-It could well be. All I recall is being told that this was quite different behaviour on the part of these people than we had seen before. CHAIR-Yes. CERTAIN MARITIME INCIDENT CMI 52 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-You invited a correction from me if you got it wrong. CHAIR-Yes. Senator BRANDIS-The evidence of Commander Banks, and no doubt we can go into this, is that when the vessel was first sighted-that is, at a time prior to the warning shots and other manoeuvres by the HMAS Adelaide-more than 80 per cent of the occupants of the vessel already had life jackets on. Dr Hawke-This is exactly why I did not want to get into this detail because I do not have a detailed knowledge of what happened during this time. I think Commander Banks is the better person to talk to about that. He was there on the scene in charge of the operation. CHAIR-I thank Senator Brandis for making the clarification because it was not clear in that form when he asked his question. That goes to whether the SIEV was sinking- Dr Hawke-Yes. CHAIR-and whether its pumps were defective and things of that nature. Senator FAULKNER-Just before Dr Hawke leaves, I have one or two questions that arise from recent evidence. Could I be clear on this, please, Dr Hawke-and I am not: on 15 February 2002, we are told that you asked the Acting CDF to inform Mr Moore-Wilton of the conversation between Air Marshal Houston and Minister Reith. I think that is right, isn't it? Dr Hawke-Can I put it my way? Senator FAULKNER-Yes. I want to be clear on it. Dr Hawke-Bornholt read out his remarks. Air Marshal Houston confirmed them in front of Lieutenant General Mueller, who was Acting Chief of the Defence Force. I then suggested that Mr Moore-Wilton and the defence minister needed to be informed and General Mueller under- took to do that. I do not know whether I actually said to General Mueller, `and you should do it', but he did it. Senator FAULKNER-Thank you for that. That does clarify that. In relation to the conversation that you were made aware of on 8 November, which was between the Acting CDF, in this case Air Marshal Houston, and Minister Reith, did you-or not-consider a similar approach: in other words, to inform Mr Moore-Wilton of that? Dr Hawke-No, I did not. Can I just go back one point? General Mueller told me that he had spoken to Mr Moore-Wilton that night. I am unclear when the defence minister was told, but I am pretty sure he was told. As to the discussion on the morning of 8 November, when Air Marshal Houston told me, I did not canvass the possibility of telling Mr Moore-Wilton. Senator FAULKNER-Why the different approaches in the two instances? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 53 Dr Hawke-In my mind was the fact that the reports by Powell and Bryant had been tabled in the parliament on the 13th. Bornholt had come to me on the afternoon of the 15th, I think it was, saying he had now had time to read it. His view was that Major General Powell had missed the import of what he had told him about the conversation between Air Marshal Houston and Minister Reith. My view was that, in that case, somebody should draw that to the attention of the Secretary of PM&C, given that the Prime Minister had tabled the statements-and that the defence minister needed to know as well. Senator FAULKNER-You indicated to the committee a little earlier that you in fact offered your resignation in relation to these matters. Could you indicate to the committee when you did that and at what part of this process you decided to do that. I appreciate it was some time after the election on 10 November. Dr Hawke-Yes, it was in February. Senator FAULKNER-Was that after the tabling of the Bryant and the Powell reports? Dr Hawke-Yes. Senator FAULKNER-You have made the point to the committee at some length this morning that you feel many of these matters are not the responsibility of the Secretary of the Department of Defence. You have described them as, if you like, operational matters, more properly the concerns of the ADF, when we look at the diarchy in Defence. I think that is fair to say, isn't it? Dr Hawke-Yes. Senator FAULKNER-In that circumstance, why offer your resignation? Dr Hawke-I offered my resignation on the basis of not offering oral advice or written ad- vice to Minister Reith about the photographs. I feel in retrospect that I should have done that. CHAIR-I thank Senator Brandis and Senator Faulkner for taking my line of questioning away from me. That is fine. I have no difficulty about that. But let me conclude my line of questioning now. Just going back to this last point, you have made your criticism of yourself forthrightly and directly before us and that attracts a fair bit of respect, I think, if I may say so, Dr Hawke. Can I ask you this question though: why did you not write to Minister Reith? Dr Hawke-At the time, this was not a big issue. It subsequently became so. If you look at it that way, I guess I regard it as an error of judgment on my part at the time. It is easy to say there were a lot of other things going on and that I was attending to those and that this issue was not very large on the radar screen at that time. It turns out to be so. CHAIR-I have no further questions. There appear to be no further questions. Thank you very much, Dr Hawke. Proceedings suspended from 12.38 p.m. to 1.33 p.m. CERTAIN MARITIME INCIDENT CMI 54 SENATE-Select Monday, 25 March 2002 SHACKLETON, Vice Admiral David, Chief of Navy, Royal Australian Navy CHAIR-Welcome, Vice Admiral Shackleton. Let me extend the courtesy to you that we extended to Dr Hawke-do you have an opening statement of any sort? Vice Adm. Shackleton-I do and I would be grateful if you would allow me to proceed with it. CHAIR-By all means. Senator FAULKNER-We might flag with the admiral our wish for him, if he is able at some point after he has made his statement, to provide the committee with copies of that statement. That might be helpful to the committee. Vice Adm. Shackleton-I am happy to. I have a copy here. CHAIR-We have a capacity to make copies here. Senator FAULKNER-Sorry, I did not mean to interrupt you, but it was very helpful when Dr Hawke's statement was distributed. Vice Adm. Shackleton-Certainly. Senator FAULKNER-Thanks a lot. CHAIR-The floor is yours, Vice Admiral. Vice Adm. Shackleton-Thank you. I would like to open my evidence by making a statement concerning my responsibilities as the Chief of Navy and how they relate to the command of ADF operations. I will then describe my understanding of the issues concerning SIEV4. In particular, I will describe the role of the Navy, the issues concerning the video and its use and the photographs and their relationship with the rescue of people. I will then be happy to answer any questions you may have for me. Turning to my responsibilities as the Chief of Navy, I am the Chief of Navy and am accountable to the Minister for Defence through the CDF and secretary for the leadership and management of the Royal Australian Navy. Minister Moore appointed me to my position on 3 July 1999. I command the Navy. Command is exercised by a person, not a committee or a staff officer. My accountability cannot be delegated. My responsibilities include ensuring that the Navy is able to achieve its mission of being able to fight and win, and professionally conduct the tasks required of it by the CDF within the resources that I am allocated. In achieving that responsibility, I appoint officers and sailors to positions of responsibility, authority and accountability that match their training, education and experience. It is my responsibility to appoint commanding officers of Navy units and it was me who appointed Commander Banks in command of the Adelaide. I also make recommendations to the CDF regarding the CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 55 appointments of very senior officers and it was my recommendation to CDF that Rear Admiral Smith be appointed as the Maritime Commander. It is also my responsibility to advise the CDF on the most effective and appropriate manner in which to use naval forces. Along with the other service chiefs, I am a member of the Chiefs of Service Committee which advises the CDF on non-time critical military matters, and the Strate- gic Command Group which advises him on matters that typically do have time sensitivity about them. I am responsible for the development and implementation of all Navy doctrine and poli- cies for their proper administration and operation. This includes the achievement of a safe working environment and the professional conduct of all activities undertaken by the Navy so that they can be operationally successful. I am required to set the requisite deliverables and their associated standards to be met by other elements of the Department of Defence such that I can meet these responsibilities. As I have said, my responsibilities extend to providing the wherewithal and the ability to conduct naval operations to a high level of professional proficiency, but my command authority does not extend to the direct conduct of operations themselves. The CDF commands all ADF operations. He generally commands them through the Commander Australian Theatre, presently Rear Admiral Ritchie. CDF is assisted by many other staff officers whose work is coordinated by Head Strategic Command, presently Air Vice Marshal Titheridge. That officer is a staff officer who acts as an agent for the CDF. He is not a commander. The Strategic Command Division is a functional organisation in Russell. COMAST has four component commanders and Commander Northern Command who are responsible to him. They are the Naval Component Commander, presently Rear Admiral Smith who is also the Maritime Commander, the Land Component Commander, the Air Component Commander and the Commander of Special Forces. Each of the component commanders has two bosses, one is COMAST himself, to whom they answer for the achievement of operations within their particular environment, and the other is their chief of service to whom they answer for the proper conduct of operations to the appropriate level of professional performance. In this case, Rear Admiral Smith is responsible to Rear Admiral Ritchie for the planning and execution of maritime operations, and to me for the professional standard to which the operation itself is conducted. In this way, I am able to meet my own responsibilities to the CDF. As I have said, the Commander of Northern Command, currently Brigadier Silverstone, is also responsible to COMAST. For Operation Relex, Brigadier Silverstone was also designated as the commander of joint task force 639. In this role, he had tactical command of units assigned to him and he was responsible to the Naval Component Commander, Rear Admiral Smith, who himself had been designated as the lead component commander for this operation. In turn, he was responsible to COMAST and thence to CDF. At the time of the SIEV4 incident, Adelaide was under the tactical command of CJTF 639. In summary, the operational chain of command for Adelaide for Operation Relex was to CJTF 639, to the Naval Component Commander, to COMAST and to CDF. Or put alternatively, it was Banks to Silverstone to Smith to Ritchie and then to Barrie. This system is flexible and it works. I now turn to the circumstances as I understood them on 8 November 2001, which is when I became publicly associated with this incident through media reporting. In the interim I have CERTAIN MARITIME INCIDENT CMI 56 SENATE-Select Monday, 25 March 2002 become aware of the contents of the Bryant and Powell reports, and this advice has been largely incorporated in those reports. On 6 or 7 October I was told by the Maritime Commander, Rear Admiral Smith, by telephone that Adelaide was dealing with SIEV4 and that the people on this vessel seemed to be more aggressive and better prepared than others before it. The Maritime Commander kept me verbally apprised of the incident as it unfolded and until it stabilised. He may have told me that the reports of children being thrown over the side were not correct, but if he did I do not remember him so saying. I had an awareness that the people on these boats would go to great lengths to achieve their ends and that threatening to hurt people was not a new tactic of persons seeking to enter Australia in such circumstances. So I would not have been surprised by any comments he may have made in this respect. The video footage released in November was of the initial incident; that is, the apprehension of the vessel and Adelaide taking control of it. The video was made of the events recorded by the ship's electro-optical tracking system, which works in conditions of low light as well as in daylight. On 10 October the Maritime Commander emailed me copies of photographs taken of people in the water being attended to by sailors from the Adelaide. The Maritime Commander verbally told me that these were photographs of people being rescued after the boat had sunk, which was after it had been taken in tow by Adelaide-that is, they were not photographs taken during the apprehension of the vessel. Some of these photographs subsequently appeared very shortly afterward in the print and television media, being portrayed as being a rescue of indi- viduals thrown over the side of the SIEV. Both the Bryant and Powell reports addressed the handling of these photographs. The description by Powell of how they were handled is correct, from my recollection of the events. On 10 October I saw these photographs on the ABC 7.30 Report television show, and I immediately telephoned CDF with my advice that the photographs had been improperly identified. He advised me that COMAST, Rear Admiral Ritchie, had already called him about the same matter. I was aware that Adelaide had emailed copies of the photographs to recipients that did not have an operational need for them and that this risked their widespread distribution and poor control. Consequently, I verbally instructed the Maritime Commander to ensure that very tight control of imagery of all of these SIEV events then be put in place. I was concerned at the loose handling of operational information and the potential for the imagery to be used without appropriate management controls, noting my responsibilities for the professional conduct of the Royal Australian Navy. On a date that I cannot remember, but it could have been 10 October or within two or so days, I was in discussion with CDF, Brigadier Bornholt and Ms McKenry in the Russell 5th floor CDF incident room, where we discussed the nature of the photographs in the media, and that they were not being correctly identified as being of the rescue of people after their boat had sunk. The photographs, as sent by Adelaide, originally had captions to clarify their meaning. On 20 October I departed Australia for the US and the UK and returned on 7 November. I attended the launch of Rankin in Adelaide on that day and then flew to Perth that afternoon. While absent from Australia, the Deputy Chief of Navy, Rear Admiral Adams, kept me apprised of events. I do not recall this particular issue-that is of SIEV4-being raised between us. On 7 November my office advised me that Mr Scrafton would visit Maritime Headquarters that day to view the video taken by Adelaide of the boarding operation conducted on 7 October. I was later told that this was done in the presence of the Chief of Staff, Maritime Headquarters, CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 57 Commodore Hancock. I was later advised by both Captain Goldrick, who was my chief staff officer, and the Maritime Commander that, based on Mr Scrafton's advice, Minister Reith had agreed to release the tape to the media and that it would be released on 8 November. Captain Goldrick advised me that it was shown in the eastern states after midday on the 8th, and I saw it on television in Fremantle on the evening of the 8th. On 8 November I attended the departure of HMAS ships Kanimbla and Adelaide for opera- tions in the Persian Gulf area. I visited Adelaide and spent about 30 minutes with Commander Banks, the commanding officer. He described the circumstances of 6, 7 and 8 October, and I watched the videotape taken by the ship using its camera system. There was no evidence I could see on that tape of people being thrown into the water, but there was a person holding a child over the side with what I viewed as being the clear intent to do so. The tactical circumstances on 7 October varied from low- to high-intensity activity for the crew of Adelaide, and it is easy to see that in the heat of the action there could have been an assessment of people being thrown into the water. Banks told me that he reported the incident to Brigadier Silverstone via radio telephone on the seventh, when Silverstone called him from his headquarters in Darwin. In giving evidence to the Senate on 20 February 2002, I was asked about the `fog of war'. My answer was: It is related to the reality that everything is real but it is not real. You are trying to pull threads and strands from many miscellaneous and sometimes disconnected information flows. You are trying to build a puzzle from many disconnected pieces. Sometimes the pieces fit accurately, sometimes they do not. It is fair to say that, often as not, you are dealing with millions of shades of grey and it is only as events start to get to a point of culmination that they start to form up into a real pattern, and then sometimes it disintegrates again as the events change. This is constantly moving and going up and down all the time. The commanding officer has to make hypotheses, judgments and calls based on what he sees at the time. It is never absolutely right; it is never absolutely wrong. This is why it takes time to get clarity and understanding of fast moving events, and it can exist at all levels of command. Subsequent analysis of the activities undertaken by the crew of the Adelaide change the original assessment by Banks. This is not unusual. Commander Banks told me that he then advised CJTF 639, via radio telephone on about 9 October, of the changed assessment of these events-that is, children were not thrown in the water. But he also said to me that he was now unsure of whether he had been so definitive or not with Silverstone in the first instance. From my perspective, there is every likelihood that he had been, but, as so often is the case, the real-time nature of events can cloud what really happened. Also, from my perspective, Banks would have reported what he felt to be correct at the time. I am aware of Commander Banks's public statement regarding this matter, and I do not find it at odds with what I have just said. The media interviewed me on 8 November-the day that the videotape was released. In that interview, I said: 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. My circumstances at that time were that I had been absent from the country for almost three weeks. In talking to Banks that day, seeing the video first-hand with him, and through talking with the Maritime Commander the day before, I had come to the conclusion that this would have been the information the Navy would have provided through the appropriate linkages; that is, that the original report had been corrected. I later found out that, while Adelaide had subsequently reported that children had not been thrown in the water, this report had not CERTAIN MARITIME INCIDENT CMI 58 SENATE-Select Monday, 25 March 2002 progressed up the chain of command in a manner and clarity that altered the advice provided to the government by the CDF. This was the message that Air Marshal Houston subsequently referred to during the February 2002 Senate estimates committee hearings. That same afternoon, 8 November, I was told by my chief staff officer that my comments were the lead news story in the eastern states, and that the chief of staff to the minister, Peter Hendy, wished to speak to me. My remarks were apparently being portrayed by the media to contradict those of Minister Reith regarding this matter, and it was about that contradiction he wished to talk to me about. Hendy and I spoke during the afternoon of the 8th. He said that he clearly recalled the minister being advised by Navy people of this incident-which is of chil- dren being thrown in the water-and he suggested to me that I should issue a clarifying state- ment to remove the apparent contradiction. In talking to Hendy, I gained a strong impression that he had not been told that the original report was incorrect, and this came as a surprise to me. I then spoke to Captain Goldrick and subsequently to Ms McKenry, who crafted a clarify- ing statement that I agreed with, which asserted that I was not contradicting the minister. It was released that same afternoon. It was true to say that Defence had advised Minister Reith of the original report from Adelaide of children being thrown in the water. And it was in that context that I issued a separate statement refuting that contradiction. I would not have issued one if I did not consider that the argument was sound. I am aware that there is some notion that I was coerced into making a form of retraction. This is not so. I do not see it as part of my role to make public remarks which lead to any notion that I am a mouthpiece for others. I have provided information to Major General Powell for contribution to his report, and my remarks in this section of my statement largely reflect that written advice. I have also assisted the CDF and officers appointed by him to deal with the internal Defence management of this issue. In closing, I spent Christmas in the Persian Gulf at sea with the 800 or so Navy people on board the Kanimbla, Adelaide and Sydney, which were deployed to the operation against terrorism. The people of Adelaide were in good spirit but were concerned about the way in which their efforts with SIEV4 had been portrayed in the media. I reassured them that they had my full confidence and that I thought that they had done a good job. In recent times the media has been seeking to make a point of Navy not properly treating the two sailers whose photographs appeared in the papers and on television. I totally reject that notion. In particular, Able Seaman Whittle has been portrayed as an injured party. That is not so. I have discussed this with her personally and I have had contact with her father, who was very supportive of the Navy's handling of this matter. On 12 March this year I visited Adelaide while she was at sea and before she returned to Stirling from her deployment on the next day. I again reinforced with them that I was proud of their efforts, for all that they had done, and as the Chief the Navy I could not have asked them to do any more, and that it was good to have them safely home again to be reunited with their families. That completes my opening statement. I am sorry for the longwindedness of it. CHAIR-Thank you, Vice Admiral Shackleton. I do not think that `longwindedness' is an appropriate term to describe it. It may be an appropriate term to describe these proceedings by the time they are out, but we will see. It is my intention to rotate the call among the various senators, and I will start with Senator George Brandis. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 59 Senator BRANDIS-Vice Admiral Shackleton, I want to ask you a number of questions about the SIEV4 incident, and I also want to direct a series of questions to you in relation to the expanded terms of reference of the committee-that is, term of reference (c), which instructs us to inquire into and report on the: ... operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. I do not expect you to comment on this, Vice Admiral Shackleton, but may I say by way of a preliminary observation that it seems to me a disgraceful thing that brave sailors, officers and seamen have been used in some quarters as the meat in the political sandwich in relation to this, and I want you to feel very free in responding to my questions to say everything you feel you wish to say concerning the conduct of those under your command. Vice Admiral Shackleton, is it correct that the Navy took over the responsibility of coastal surveillance in relation to illegal immigrants from the Australian Customs Service from the time of the Tampa incident? Vice Adm. Shackleton-I think there are some technicalities here. The chairman of the interdepartmental committee remained from the Department of the Prime Minister and Cabinet, and Defence participated in that IDC. Defence was given the lead role in the coordination of this operation, known as Operation Relex, and we proceeded from there. Senator BRANDIS-Was Operation Relex a new operation name from the time the Navy took primary responsibility for the operation? Vice Adm. Shackleton-I would have to get advice on that. In terms of `Was this a new style of operation for the Navy?' the answer is yes. We had not done this style of operation before. Senator BRANDIS-It is the case, I think, Vice Admiral, that from the time of the SIEV concerned with the Tampa episode on 26 August until the beginning of December, in that roughly three-month period, there were 12 SIEVs intercepted by the Royal Australian Navy. Vice Adm. Shackleton-That would be about right. Senator BRANDIS-And they were naturally given a corresponding serial number, SIEV1 through to SIEV12? Vice Adm. Shackleton-Yes. Senator BRANDIS-Vice Admiral Shackleton, I want to take you to some evidence you gave in response to some questions from me at the Defence estimates on Wednesday, 20 February this year. I am referring in particular to the Hansard record at page 87 through to 89. You may recall that I was asking you some questions not about SIEV4 but about another incident that occurred on 24 October 2001 concerning the vessel identified as SIEV7. Vice Adm. Shackleton-That is correct. Senator BRANDIS-That was an occasion when a child was thrown into the water, wasn't it? CERTAIN MARITIME INCIDENT CMI 60 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-That was the evidence I gave, yes. Senator BRANDIS-Yes. I asked you at about point 3 on page 89 of the Hansard report: Is there, to your knowledge, a belief among the Navy that events of this kind, which have been authenticated in relation to SIEV7-that is, children being thrown overboard from suspected illegal entry vehicles-were not an uncommon phenomenon? You replied: It is anecdotal. I would have to get greater clarification to say that it is a certainty. You go on to say about two lines down: If you are asking whether there is a belief that this is a common event, then I would have to say that that is probably the case. Vice Adm. Shackleton-Yes. Senator BRANDIS-I asked you: Among Naval personnel? And you replied: Amongst those people involved in these operations, yes. Do you remember giving that evidence? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-And you confirm that evidence today? Vice Adm. Shackleton-Yes, I can. Senator BRANDIS-In fact, it is the case, isn't it, Vice Admiral Shackleton, that when the Navy took over the primary responsibility for policing the Australian maritime borders from illegal entry vessels the Navy discovered quite soon that the use of children for the purpose of moral blackmail by asylum seekers-either by threatening to throw them into the water or by, as in the case of the event on 24 October, throwing them into the water or by, as in the case of SIEV10, deliberately sinking the vessel and carrying children into the water from the sunk vessel or by, as in the case of SIEV9, otherwise causing physical harm to children-was a practice that was routinely engaged in as a tactic? The Navy discovered that, didn't it? Vice Adm. Shackleton-That is what we found. Senator BRANDIS-Hence your remark in your opening statement, I assume, that threatening to hurt people in order to gain entry into Australia was not a new tactic. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 61 Vice Adm. Shackleton-Correct. Senator BRANDIS-Admiral Barrie gave some evidence to the Defence estimates as well on the same day-on 20 February 2002. I refer you to the foot of page 72 of the Hansard record. This was in response to some questions from Senator Faulkner. At the very foot of the page, Admiral Barrie says this in the very last line: We had not seen it before ... that is, this kind of behaviour- although I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity ... the activity being the sort of activities that I have referred to. Vice Admiral Shackleton, can you tell us what naval intelligence told you about the briefing that was occurring to these illegal immigrants at the ports of departure? Vice Adm. Shackleton-I do not have that at hand. The Maritime Commander and Commander Australian Theatre may be able to provide you with that information directly. I would perhaps hesitate by saying it is likely to be classified in terms of its content and sources. Senator BRANDIS-I will direct those questions to them in due course. Can I venture to suggest to you, by inferring from the context in which Admiral Barrie there spoke, that the briefings that were occurring at the ports of departure were briefings encouraging the use of children for the purpose of moral blackmail of the Australian naval forces in order to secure a foothold in Australia territory by the illegal immigrants? Vice Adm. Shackleton-It was our understanding that they were learning from each event that they interacted or experienced with us and that they were starting to understand our approach to how we operated. It would not be unreasonable to expect that they were trying to find ways to counter what we were doing. Hence we found, in this particular instance, SIEV4 was giving the appearance of being better prepared and more aggressive than the previous ones that we had dealt with. Senator BRANDIS-So your impression was that this was a coordinated response by the people smugglers? Vice Adm. Shackleton-Yes. CHAIR-I must say we have none of this evidence before us. Senator BRANDIS-I am just asking questions. CHAIR-I know. I am just making the point that none of this evidence from which you are asking questions is before us. The point is that if we are going to examine the assertions, as we may wish to do, it would be useful if we had access to the same body of evidence that you appear to have access to, Senator Brandis. CERTAIN MARITIME INCIDENT CMI 62 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-Let me produce it. Vice Admiral Shackleton, have a look at this document, please. The document that I have given to you is in fact a suite of documents. The first two pages are a letter to me from the Minister for Defence, dated 21 March 2002, I think; is that right? Vice Adm. Shackleton-Yes. Senator BRANDIS-The second document is again a two-page document: a letter from me to the Minister for Defence the previous day. Vice Adm. Shackleton-Yes. Senator BRANDIS-If you glance at my letter, you will see that it is an inquiry for information concerning SIEV incidents, and the minister's letter is a reply. Vice Adm. Shackleton-Yes. CHAIR-Can we have a look at this document? Senator BRANDIS-The document has been given to the committee, Senator Cook. CHAIR-If that is the case, then it is a different document. I do not wish to interrupt you, Senator Brandis, but there ought to be a procedure. In your line of questioning, you are referring to what allegedly occurred in briefing SUNCs, to use the naval term, at the ports of departure. In the document that you have now identified, there is no such reference. Senator BRANDIS-Senator Cook, if you listen to my line of questioning, all will be revealed to you. CHAIR-All I am saying to you-and I said this in my earlier intervention-is that the allegations you are making about what occurred at the point of departure is not before the committee. That is all. Senator BRANDIS-Senator Cook, I asked this witness a number of questions about what he understood to be the briefing at the ports of departure. I am moving on to another, although related, topic. CHAIR-You explained to the witness what you believed happened at the point of departure and invited him to concur. That is a line of questioning that is permissible in this form. Senator BRANDIS-As you say, it is a perfectly permissible line of questioning. CHAIR-All I said and all I insist on saying at this point-one thing and nothing more, but it is material to this line of inquiry-is that we have no evidence that what you are putting to the vice admiral is in fact what happened. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 63 Senator BRANDIS-I am terribly sorry, Senator Cook, but I saw the vice admiral take an oath. There is evidence: it is the evidence that he has just given. Vice Adm. Shackleton-Senator, perhaps when the Maritime Commander is given an opportunity to give evidence-he has copious details of each SIEV incident-he will be able to describe for you the way in which we saw an increase in their readiness to deal with us, which led us to understand that there was some feedback mechanism in their processes which alerted them to our approach so that they would, in their own way, be more prepared to deal with us. CHAIR-Thank you, Vice Admiral. All I am saying to Senator Brandis-and he has clarified it to some extent-is that the evidence that is before us is the evidence that you have given, not the questions that have been put to you. My intervention is to simply say that none of us were aware of these questions. It is perfectly reasonable that Senator Brandis should proceed in this way-I make no criticism of that-but, if we are to examine these allegations, we do need a body of evidence that we can examine. Senator Brandis believes that that is the evidence that you are giving. That is his belief-that is fine, we will deal with that. But I do make this other point, and I make it to you, Senator Brandis: when I made my intervention in the first place, you then referred to this document-which you have now handed to the vice admiral- which has nothing to do with the evidence of what may have occurred at the point of departure. I am familiar with the document you have now referred to, and I just wanted to make that distinction lest there be some confusion. Senator BRANDIS-No, Senator Cook, I am afraid you have missed an intervening stage. I then went on to ask the witness whether it appeared to him that the use of children and threats to the life of children for the purpose of moral blackmail of Australian naval personnel was a coordinated response. This document speaks directly to that issue. Senator FERGUSON-Mr Chairman- CHAIR-If I may, is it related to the point that Senator Brandis has made? Senator FERGUSON-Yes. CHAIR-Well, let me hear you on that point. Senator FERGUSON-Mr Chairman, at the opening of this inquiry you said this morning that you wanted to give every senator an opportunity to exhaust all the questions that each wit- ness might be required to answer. Whether or not there is documentary evidence before the committee at present should not preclude any senator from asking a question of a witness about anything that they think is relevant to this inquiry. Senator Brandis is following a line of ques- tioning which is very relevant because it also alludes to the motives and behaviour of these peo- ple, and I think that every scrap of evidence that we can possibly get should be allowed in this inquiry-as you intimated in your opening statement. CHAIR-Thank you, Senator Ferguson. Nothing that I have said is in any way meant to prevent a line of questioning by a member of this committee. What I have said is to get the line of questioning into context. No document before us goes to what may or may not have been said by refugee seekers-or whatever the proper title is-at the point of departure. Secondly- and as far as I am concerned we should get on to the business-the document that has been CERTAIN MARITIME INCIDENT CMI 64 SENATE-Select Monday, 25 March 2002 nd as far as I am concerned we should get on to the business-the document that has been adduced, which I took to have been adduced to establish the point after my intervention, is not related to that point. Senator JACINTA COLLINS-Senator, I might be able to short-circuit this process. Vice Admiral, correct me if am wrong, but I think in your statement you indicated that there was a document that pertained to Senator Cook's issue but that you did not have it on you at the time. If there is any such documentation, can I ask that you provide it to us on notice? CHAIR-I think that has already been asked by Senator Brandis. Vice Adm. Shackleton-I may have created in your minds the notion that there is a lengthy intelligence report somewhere. We would have to go and investigate that. Clearly, from the behaviour of the SIEVs, we saw an increase in their understanding of how to deal with the Navy, as we got ourselves in the position of dealing with them. They were learning, and so that meant to us that somebody was obviously instructing them in how better to approach the Australian Navy when they came into Australian waters. Senator BRANDIS-Let me then take you through the document. The main body of the document is a minute dated 1 March 2002 from the Head of Strategic Command, Air Vice Marshall Titheridge, to the minister. May I tell you, Admiral Shackleton, that this is a document produced to me, as a member of the committee, and to the committee, by the minister. It contains- CHAIR-No, it was presented to the committee, through you. Senator BRANDIS-No. As I understand it, the document also went directly to the secretariat. I am told by the secretary that it was produced to the secretariat of the committee as well. The second page of the document sets out, in a sense, a table of contents, under the heading `Unauthorised Arrivals Incident Information'. Do you see that? Vice Adm. Shackleton-Yes. Senator BRANDIS-The next page is a glossary of acronyms. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-Then there is a series of enclosures identified in the top right-hand corner-enclosure one through to enclosure eight-and the method of the document is to have one enclosure for each of the eight Navy ships involved in SIEV incidents during the period under review. Do you see that? Vice Adm. Shackleton-Yes. Senator BRANDIS-You have seen this document before? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 65 Vice Adm. Shackleton-I may have; I do not recollect it directly. But I am an addressee on that, I see that. Senator BRANDIS-Yes, you are. It is not done in chronological order, but I reconstructed a chronology. The earliest event in the sequence is that reported at enclosure 3 concerning SIEV3. I am going to take you through this document so as to enable you to develop your proposition that the Navy saw increasingly-in regard to the use of children for the purposes of moral blackmail-a coordinated response by the illegal immigrants and the people smugglers. Let us start then with the earliest incident-that is, that concerning the HMAS Warramunga. The illegal entry vessel was SIEV3 and the date was 12 September 2001; do you see that? Vice Adm. Shackleton-Correct. Senator BRANDIS-Are you aware that there was a SIEV incident involving the interception of SIEV3 by the HMAS Warramunga on 12 September 2001? Vice Adm. Shackleton-I am, but if you would permit me, the individual with the expertise who can talk to you with all of the knowledge on these matters is the Maritime Commander. He dealt with these on a day-to-day basis blow by blow. I am happy, obviously, to sit here and answer your questions, but you may find yourself repeating those same questions with the Maritime Commander. Senator BRANDIS-I may, but you are the Chief of Navy and it is the men and women under your command whose professional conduct has been the subject of outrageous criticism by some, and I am giving you the opportunity as Chief of Navy to make your own observations in relation to that. We have been tasked by the Senate to do that very thing. May I take you, please, to subparagraph C, which is the long subparagraph in the middle. In relation to this particular SIEV incident, Lieutenant Commander Gregg reported that one female potential illegal immigrant was seen holding a child over the side and threatening to throw the child over the side. Vice Adm. Shackleton-Yes, that is what it says. Senator BRANDIS-You are familiar with that incident having occurred? Vice Adm. Shackleton-Yes. Senator BRANDIS-The next SIEV incident in the sequence was the SIEV4 incident on 7 October. That is reported at enclosure 1. You will see in subparagraph D that-let us leave to one side the question of whether or not a child was in fact thrown into the water from SIEV4- it is, I think, not in controversy that a little girl was dangled from the side of the SIEV4 vessel and threatened to be thrown into the water. Vice Adm. Shackleton-That is what the video shows, yes. Senator BRANDIS-That is the event reported as occurring at approximately 0600 hours? CERTAIN MARITIME INCIDENT CMI 66 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-That is correct. Senator MASON-If I could also just draw your attention to your statement to Major General Powell. On page 3 of that, in addressing this incident about the child being held over the side of the boat, you say, in paragraph J: 1.4.13 On 8th November I attended the departure of HMA Ships Kanimbla and Adelaide for operations in the Persian Gulf area. I visited Adelaide and spent about 30 minutes with CMDR Banks, the Commanding Officer. He described the circumstances of the 6th, 7th and 8th October, and I watched the videotape taken by the ship using its camera system. And then you say, and this is important: There was no evidence I could see on that tape of people being thrown in the water, but there was a person holding a child over the side, with what I viewed as being the clear intent to do so. Is that correct? Vice Adm. Shackleton-That is correct. Senator BRANDIS-Just to complete the discussion of the video taken from SIEV4, you do not say, of course, that the video proves one way or another whether another child was thrown into the water; you merely say, as I understand your evidence, that it is not conclusive of that issue. Vice Adm. Shackleton-What the video shows is, as we have just been describing, that there was a child held over the side. From what I saw, there was no evidence on that tape of anybody being thrown into the water. Senator BRANDIS-I want to move on now from SIEV4 to the next SIEV incident, and that is the incident concerning SIEV6, which is described in enclosure 8 on the last page of the document that I have handed to you. That was an incident involving the HMAS Bunbury on 7 October 2001. Vice Adm. Shackleton-Yes. Senator BRANDIS-Was that incident reported to you? Vice Adm. Shackleton-I was aware of that, yes. Senator BRANDIS-In subparagraph D, the precis of the report of the boarding party tells us: ... members of the Boarding Party observed a large male standing atop the vessel's coachhouse. He picked up a young girl (aged 4-5 years) by one leg and held her over the STBD side of the vessel and started yelling. The young girl appeared very distressed. All observers noted that she had a cast on her left arm. Do you see that? Vice Adm. Shackleton-Yes, I do. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 67 Senator BRANDIS-Vice Admiral Shackleton, I wonder if you would like to comment on the effect having to attend to an incident in which a little girl with her arm in a cast is held screaming by the leg over the side of one of these vessels has upon the morale of Australian Defence personnel, male and female. What does that do to your personnel? Vice Adm. Shackleton-I do not think `morale' is the word to use. I think the words to use are `care and concern about the safety of children', which everybody in this country has a very strong feeling about. It goes to the heart of what we have been attempting to do. This has been very hard work, and the sailors have acquitted themselves in a way in which I think most Australians would be very proud of. In my own sense, I cannot be any more proud of them than I am. The point is that this has been very difficult. The people who are engaged in the SIEV- that is, the people themselves-are in difficult circumstances. The point is that they are trying to get to Australia. It has been the Navy's task to stop them doing that. Senator BRANDIS-The next SIEV vessel where we see this sort of conduct is that identified as SIEV7, and that apparently engaged two naval vessels-the HMAS Arunta and the HMAS Bendigo. Vice Adm. Shackleton-Are you looking at enclosure 6? Senator BRANDIS-Enclosure 2 deals under the subheading `Incident One' with the incident concerning SIEV7, so far as the intervention of the HMAS Arunta was concerned, and enclosure 6 deals with the incident involving SIEV7, so far as the HMAS Bendigo was concerned. The second of those two incidents-that concerning HMAS Bendigo on 24 October-was the occasion when a child was thrown into the water, but there was an earlier incident involving the same SIEV vessel-SIEV7-with the HMAS Arunta. Do you see that in enclosure 2? Vice Adm. Shackleton-Yes, I do. But enclosure 6 quite rightly makes the point that the woman dropped the child into the water and then it was recovered after an individual swam to get the child. But you are talking about enclosure 2? Senator BRANDIS-Enclosure 2 also refers to SIEV7, and that involves at an earlier point in time in the voyage of that vessel- Vice Adm. Shackleton-`Threatened to throw child overboard'. Senator BRANDIS-Yes. So there was a threat made at the time that HMAS Arunta apprehended the vessel. It was taken to Ashmore Island. Then the occasion when the child did end up in the water, having been dropped overboard by the illegal immigrant, took place at Ashmore Island. That is reported at enclosure 6; is that right? Vice Adm. Shackleton-Yes. Senator BRANDIS-Senator Mason points out to me that one of the other species of conduct reported by the crew of the HMAS Arunta at subparagraph d. of `Incident One' is that, during the passage-that is, the passage escorting the vessel from Ashmore Island to Indonesian territorial waters-several incidents occurred, including attempts to set fire to the vessel and CERTAIN MARITIME INCIDENT CMI 68 SENATE-Select Monday, 25 March 2002 attempts by potential illegal immigrants to set fire to themselves, including dousing themselves with diesel fuel. Do you see that? Vice Adm. Shackleton-That is right. Senator BRANDIS-May I ask this generally: these episodes of attempts to destroy a vessel by fire or by sabotage or by holing the vessel were emerging as part of what you would call the coordinated response, weren't they? Vice Adm. Shackleton-We were seeing this as a fairly commonplace event, yes. Senator BRANDIS-Thank you. The next SIEV vessel in the sequence is that identified as SIEV9. Senator MASON-Could I just ask a quick question about SIEV7? I remember when Senator Brandis asked questions of you about this at the estimates. Vice Adm. Shackleton-Yes. Senator MASON-When were you first briefed about that? Vice Adm. Shackleton-I honestly could not tell you. I would have been familiar with SIEV7 at around about the time. I am kept generally apprised of events as they emerge and, if I seek more detail, then people will provide it; otherwise I will have a telephone conversation with the Maritime Commander at periodic intervals and we all discuss the nature of operations. We all exchange information. Senator MASON-Do you know if Admiral Barrie was told about SIEV7-or the minister? Vice Adm. Shackleton-I cannot tell you directly. I can see no reason why he would not have been. Strategic command is, as I have said, his staff function which keeps him apprised of events. It would be for Admiral Barrie to say, but I would find it surprising if he was not. Senator MASON-Perhaps you could follow up with SIEV7 and the chain of command a bit later on. Thank you. Vice Adm. Shackleton-If Admiral Barrie was out of the country at the time, then it was the acting CDF at the time. Senator MASON-I might pursue that later on, Admiral. Thank you. Senator BRANDIS-SIEV9- Vice Adm. Shackleton-Which incident are we looking at? Senator BRANDIS-Enclosure 2. There are four separate incidents in relation to SIEV9 reported at Enclosure 2, each of them concerning the HMAS Arunta. By the way, can you help CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 69 me here? Looking at the notation of the dates under `Incident Two', subparagraph a., as you read that date, what date is that intended to describe? Vice Adm. Shackleton-That is a Navy way of describing the time in zulu time, and the digit after the word `zulu'-`z'-is a check sum digit which is supposed to add up, which demonstrates that the earlier numbers are in fact correct. It is a cross-referencing correction. You would have to take, I think, depending on where the ship was, either 8½-can I just check? Senator BRANDIS-Yes, sure. Vice Adm. Shackleton-You take nine hours off, and that will tell you what time it was in local time. Senator BRANDIS-But what about the date? It says `October 01', but I am just not sure which of those digits tells you the day in October. Vice Adm. Shackleton-The date is the two left-hand digits, so that was the 31st. Senator BRANDIS-It was 31 October. Then can I go back to Incident One, please, in relation to SIEV7. Vice Adm. Shackleton-Yes. Senator BRANDIS-I may have misled you. I took Incident One to have been at an earlier date. The incident concerning SIEV7 involving the Arunta I took to be at an earlier date than the incident concerning SIEV7 involving the Bendigo. It is apparent to me now from what you say that the incident concerning SIEV7 involving the Arunta was on 29 October and the Bendigo incident was the earlier incident of the two-that is, 24 October. Vice Adm. Shackleton-Yes. The way you read this is the Bendigo was with the SIEV at Ashmore Island, and then was being escorted by Arunta from Ashmore Island back to Indonesian waters, which explains why the Bendigo incident was on the 24th and the Arunta incident was on the 29th. Senator BRANDIS-Admiral, back to SIEV9-Incident Two, Enclosure 2-again con- cerning the personnel of the Arunta. We know from that, don't we, that on 31 October a male suspected unauthorised non-citizen threatened to throw a young infant overboard and, according to the notation here, that was only prevented by that person being restrained by Army transit security element personnel on board the SIEV? Vice Adm. Shackleton-That is correct. Senator BRANDIS-You were made aware of that incident? Vice Adm. Shackleton-I was. CERTAIN MARITIME INCIDENT CMI 70 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-Chair, I think we need to be very careful of how we read these statements. I think it actually says that he was restrained; it did not use Senator Brandis's language, which was `he was only prevented from doing such'. Are you aware of that distinction, Vice Admiral? Vice Adm. Shackleton-I am just reading here what it says at subparagraph b, which is what it says- Senator JACINTA COLLINS-Which is not what Senator Brandis said. He said that the man was only stopped from doing it by personnel. Vice Adm. Shackleton-I think the text is the words that I would- Senator JACINTA COLLINS-Thank you. Senator BRANDIS-That is what it means to you, isn't it, Admiral? Vice Adm. Shackleton-Restrained, stopped, prevented- CHAIR-Senator Brandis, do you intend to enter this document into the evidence? Senator BRANDIS-Yes. CHAIR-For public release? Senator BRANDIS-Yes. CHAIR-At the conclusion of your examination? Senator BRANDIS-Yes. CHAIR-Okay, thank you. Senator BRANDIS-Admiral, the description in paragraph d. under `Incident Two' tells us-and I was not purporting to quote the very words when Senator Collins made her intervention; so let me quote the very words on this occasion: SIEV09 was a 30-35 metre wooden vessel of small ferry like appearance. Engine was damaged by a PII- I do not think it is controversial; that means potential illegal immigrants- /Crew prior to BUNBURY bp. That, I take it, means the Bunbury boarding party- ARUNTA boarding party and TSE- that is, transit security element- CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 71 inserted and conducted handover from BUNBURY. Attempts to rectify defect and re-start engines repeatedly caused tension amongst PIIs and led to a series of incidents where PII were restrained, adult PIIs jumped overboard and threatened to throw children overboard. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-You were made aware of that incident? Vice Adm. Shackleton-Yes, I was. Senator BRANDIS-Part of what you have characterised as the apparent coordinated response, Admiral? Vice Adm. Shackleton-Well, `coordinated response'-I would say it is a case of people learning how to make our lives more difficult so as to achieve their own ends. Senator BRANDIS-By using children for moral blackmail? Vice Adm. Shackleton-By taking all kinds of action: burning the boat, wrecking the engines- Senator MASON-Is that to create a situation that, I think at the hearings, Admiral, you described as SOLAS-or safety of life at sea situation? Those activities are undertaken to create a safety of life at sea situation so that the Royal Australian Navy will have to pick up asylum seekers? Vice Adm. Shackleton-That is certainly a thing that we see being a considerable part of their intentions. Of course, if we can prevent the boat from sinking-keep it seaworthy, keep the engine operating-and take it back to where it came from, that in its own way prevents them achieving what they set out to do, which is, literally, to sink it in front of us. Then we have no choice but to rescue them. Senator MASON-As Senator Brandis has pointed out, when the engine is sabotaged, water pumps are sabotaged, fires are lit and that becomes very difficult. Vice Adm. Shackleton-It does not get much harder than that. Senator BRANDIS-And once you rescued them, then, at least, until the Pacific solution started to come into effect, those asylum seekers were then in a position to litigate in Australian courts to seek the declaration of Australian courts that they were refugees? Vice Adm. Shackleton-That is outside my expertise, Senator, but that is how I understand it is. Senator BRANDIS-Rather than, had they remained at the ports of departure in Indonesia, having to pursue that claim under the auspices of the UNHCR, where, I think, the statistics tell CERTAIN MARITIME INCIDENT CMI 72 SENATE-Select Monday, 25 March 2002 us, that the prospects of success are about one-sixth of what they are by the more generous standards of the Australian system and the more generous spirit of the Australian people- Senator BARTLETT-It is quite legitimate for people to put their opinions on the record but, in terms of people reading this, there are differing views about the veracity of that statement. I am not sure we should go down that path. Senator FERGUSON-You will get your chance to say so later. Senator BRANDIS-Thank you, Senator Bartlett. Vice Admiral Shackleton, can we go to incident three, please, on the next page? This again involves SIEV9; it again involves crew from the Arunta, apparently in company with the Bunbury and the Gladstone. Are the Bunbury and the Gladstone both naval vessels? Vice Adm. Shackleton-They are; they are Fremantle patrol boats. Senator BRANDIS-Pardon my ignorance of naval matters. On this occasion, which occurred on 31 October 2001, it is reported-as you will see from paragraph e. in statements from members of the boarding party and the boarding officer: One PII attempted to throw a child overboard, as another PII illegal immigrant attempted to strangle a child. PIIs restrained children safe. Was that incident reported to you, Vice Admiral Shackleton? Vice Adm. Shackleton-I don't remember being told that they were attempting to strangle a child. I remember being told that this was an incident which had similar traits to other incidents, but that is what is written here. Senator BRANDIS-Yes. Vice Adm. Shackleton-And I would have no reason to doubt the authority of it. Senator BRANDIS-Again, may I suggest to you that, as part of this pattern of coordinated response, apparently the potential illegal immigrants and crew damaged the engine. Do you see that reported in paragraph d.? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-This is yet another incident of that behaviour. Vice Adm. Shackleton-Yes. Senator BRANDIS-Under `Incident Four'-once again, concerning SIEV9 and, once again, concerning the Arunta, in company with the Bunbury and the Gladstone-occurred on 1 November 2001. Do you see that there? Vice Adm. Shackleton-Yes, I do. The Arunta is a busy ship. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 73 Senator BRANDIS-Apparently. The statements from the boarding party and boarding officers of the Arunta report-as paraphrased in paragraph b.-state: During a disturbance onboard, 5 male PIIs jumped overboard whilst 1 x female PII threatened to throw young infant overboard. Restrained by Army TSE Personnel onboard SIEV. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-Was that incident reported to you? Vice Adm. Shackleton-Yes, I was aware of that. Senator BRANDIS-Once again, as reported in paragraph d., the report states: Attempts to rectify defect and re-start engines repeatedly caused tension amongst PIIs and led to a series of incidents where PII were restrained, adult PIIs jumped overboard and threatened to throw children overboard. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-You have no reason to doubt the veracity of that? Vice Adm. Shackleton-No. Senator BRANDIS-On another occasion, again involving the Arunta, in company with the Bunbury and the Gladstone, on 2 November 2001, again involving SIEV9, the report states: PII threatened to throw children overboard if not permitted to cook own food. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-What do you think of that? Vice Adm. Shackleton-Well, they must like their own cooking. Senator BRANDIS-Yes. Once again, you will see in paragraph d. the same behaviour was reported in relation to interfering with attempts to rectify the engines-they were restrained; some adults jumped overboard and threatened to throw children overboard. Vice Adm. Shackleton-Yes. Senator BRANDIS-Vice Admiral, the next SIEV incident in sequence-apparently, so far as we know, no children were thrown overboard, or threatened to be thrown overboard or CERTAIN MARITIME INCIDENT CMI 74 SENATE-Select Monday, 25 March 2002 otherwise harmed on SIEV1, SIEV2 and SIEV5 or SIEV8. But the next one is SIEV10, which is reported at Enclosure 5. This is an incident involving the HMAS Wollongong. Do you have that there? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-As I understand the method of the notation, that was an incident that occurred on 8 November 2001? Vice Adm. Shackleton-That is correct. Senator BRANDIS-The throwing of children into the water, or threats to throw children into the water in this case, is recorded as not having been observed. Do you see that? Vice Adm. Shackleton-Yes. Senator BRANDIS-But what was observed is what is recorded in paragraph d. Let me read it: As a result of the torching and subsequent sinking of SIEV 10 by PIIs, 33 children under the age of 12 were recovered from the water by WOLLONGONG and ACV ARNHEM BAY crew. During the incident, PIIs were abandoning ship en masse. Some children were observed being held by adults as they entered the water. The method of entry into the water by the remaining children cannot be determined. Members of WOLLONGONG Boarding party do not recall any person physically dropping or throwing a child overboard. Worthy to note that WOLLONGONG and ARNHEM BAY recovered several children without parents in attendance- that is a rather formal way of describing little kids bobbing around in the water without parents in attendance- and conducted boat transfers between the vessels for family reunification purposes. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-Was that reported to you? Vice Adm. Shackleton-I was aware of that, yes. Senator BRANDIS-You do not doubt the veracity of that? Vice Adm. Shackleton-No. Senator BRANDIS-Finally, there is SIEV12, which is reported at enclosure 4. This involves the HMAS Leeuwin and, as I understand the notation, was an incident that occurred on 16 December 2001. Is that right? Vice Adm. Shackleton-Correct. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 75 Senator BRANDIS-Once again, the engines appear to have been stopped, and there was a report of smoke forward of the vessel: ... from an area where fuel drums were present. At the same time a fire was lit aft ... Also, at this time SUNCs were threatening to throw children over the side. These threats were intimated by taking children to side of SIEV and demonstrating intent to drop children into the sea. Do you see that? Vice Adm. Shackleton-Yes, I do. Senator BRANDIS-That was reported to you? Vice Adm. Shackleton-I cannot remember the specifics, but I would have been aware of it. Senator BRANDIS-You do not doubt the veracity of the report? Vice Adm. Shackleton-No. Senator BRANDIS-That is the last of the 12 SIEVs in the period. The first one involving the abuse of children was on 12 September-that is SIEV3-and this one was on 16 December. So on seven of the 10 SIEV vessels that were apprehended or intercepted by the Royal Australian Navy in the three months between September and December, there was, may I suggest to you, a repeated pattern of the abuse of children, the physical harming of children, by the unlawful immigrants? Would you go along with that, Vice Admiral? Vice Adm. Shackleton-I would say that-because I do not know that the abuse of the chil- dren is all that definite-certainly the use of children to demonstrate on their part what they might do with the children was certainly designed to get our attention. Senator BRANDIS-Do you know whether these threats were taken very seriously by your personnel? Vice Adm. Shackleton-Of course. Senator BRANDIS-They were serious threats, weren't they? Vice Adm. Shackleton-We take all threats like this very seriously. Senator FERGUSON-We have had an enormous amount of publicity over the incident of SIEV4. Vice Adm. Shackleton-Yes. Senator FERGUSON-Were any of the other SIEV incidents-one to 12-reported to the Australian media by the Australian defence forces? Vice Adm. Shackleton-I do not know; I would have to check. CERTAIN MARITIME INCIDENT CMI 76 SENATE-Select Monday, 25 March 2002 Senator FERGUSON-It would appear that SIEV4 has become currency for journalists because of statements that were made in relation to children being thrown overboard, yet we have numerous incidents-from one to 12-of children being either thrown overboard or threatened to be thrown overboard. But I have seen no or minimal reporting of any of those incidents in the Australian media in all of that three-month period. Vice Adm. Shackleton-That would be my recollection. Senator FERGUSON-Could you check and see whether or not attempts were made to inform the media of those incidents? Vice Adm. Shackleton-I can do that. Senator FERGUSON-Senator Brandis talked about moral or emotional blackmail. There was an article by Robert Garran and another reporter called `Navy scuttles PM's story'. The lead-in states: The navy has severely embarrassed John Howard and two senior ministers by undermining their claims that asylum- seekers had thrown children overboard to `emotionally blackmail' naval officers. In the light of the series of events presented to you by Senator Brandis and whether or not a person is threatened to be thrown overboard or is actually thrown overboard, it would appear to me that there is emotional blackmail in either of those two actions. Vice Adm. Shackleton-I am not quite sure whether you can use the word `blackmail'. I think in this context you are seeking to get people in the Navy to do something which we might not otherwise do. I agree that it may be a fine line with the word `blackmail'-coercion or threat to harm, those kinds of things which would force us to perhaps take a less stringent line and thereby acquiesce to what they want rather than to what we had as a mission to achieve. Senator BRANDIS-Of course, Admiral, the peculiar evil of this case was that they were not threatening to harm themselves; they were threatening to harm children, including, according to some of these reports, children as young as two. Don't you think that ramps up the level of moral blackmail? Vice Adm. Shackleton-I think all of this is very hard on the sailors involved-all of the events. Senator BRANDIS-I did not say there were not; I said they were also threatening to harm children. They were not merely threatening to harm themselves; they were threatening to harm children including, in relation to the report- Senator JACINTA COLLINS-This brief asks only in relation to the child incident. That is it; that is all the brief says. Senator BRANDIS-Please do not interrupt me, Senator Collins! CHAIR-Order! Senator Brandis. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 77 Senator BRANDIS-Admiral Shackleton, in relation to the SIEV4 incident, we have it from, I think, Commander Banks's report that the four-year-old girl being threatened to be thrown overboard, that you had seen on the video, was later discovered by inquiries as being treated in this way by her own father. Did you know that? Vice Adm. Shackleton-No, I was not specifically aware of that. Senator FERGUSON-Can I just continue and perhaps put the original question in a different manner, rather than using the words `emotional blackmail'. Admiral Shackleton, don't you think that the threat of children being thrown overboard would have just as much a traumatic effect on your Defence Force personnel as a child actually being thrown in the water? Vice Adm. Shackleton-There is no question about it. Until somebody physically withdraws the child from the position where there is a clear intent to throw somebody over the side, you continue to work on the basis that that is exactly what they might do. It was very stressful and very difficult for sailors to continue to do their jobs in those circumstances. But I think it is to the credit of the Australian Navy that they did do it. Senator FERGUSON-So whether or not children were actually thrown into the water, or whether it was only threatened that they would be thrown into the water, in effect, it has the same result on your serving personnel. Vice Adm. Shackleton-Yes, it does. Senator FERGUSON-So that also leads me to say that there is simply no truth in the story that was put out that the Navy had embarrassed the Prime Minister by undermining claims of emotional blackmail of naval officers because, whether you use the term `emotional blackmail' or `having a traumatic effect on those officers', these incidents, regardless of whether the children were in the water or being threatened with being thrown in the water, would have had an effect on your officers. Vice Adm. Shackleton-It would have had an effect on the officers, but what I would say is that it did not prevent them from doing their job. Senator FERGUSON-I understand that-under difficult circumstances. Vice Adm. Shackleton-Senator, you asked me whether we made any reports to the media about other incidents such as this. I am advised that the ADF made no reports to the media on Operation Relex and that all media contact was to be through the minister's office with regard to this particular matter. Senator FERGUSON-Was that because it was in an election period? Vice Adm. Shackleton-I have no idea. Senator FERGUSON-It would seem strange that there was so much publicity about one SIEV4 incident when in fact we had at least 10 others in that period which did involve children CERTAIN MARITIME INCIDENT CMI 78 SENATE-Select Monday, 25 March 2002 being thrown overboard and which, in the light of public comment, the Australian public were not made aware of. Vice Adm. Shackleton-Senator, I cannot comment. Senator FERGUSON-Thank you. Senator BRANDIS-Admiral Shackleton, you had a conversation at some stage-you will have to help me with the date because I cannot remember-with Brigadier Bornholt about all of this. Is that right? Vice Adm. Shackleton-About which part of this incident, Senator? Senator BRANDIS-I am sorry; about the `child overboard' affair, shall we say-the SIEV4 specifically. Vice Adm. Shackleton-Yes. I had a discussion with Brigadier Bornholt about the veracity of the photographs that were being presented in the media. Senator BRANDIS-Was the discussion limited to the photographs in relation to the SIEV4? Vice Adm. Shackleton-Yes, it was. Senator BRANDIS-You did not tell him anything about these other SIEV incidents? Vice Adm. Shackleton-I did not discuss those other incidents. I was aware of the other incidents, but my concern at that stage was that the photographs in the paper and on the television were being portrayed as the rescue of children thrown over the side of SIEV4 when in fact they were sailors who had entered into the water-jumped off the side of our ship-to go and rescue those from the sinking vessel. Senator MASON-Senator Ferguson asked you questions before about press reports. Can I just hand you a document- CHAIR-Before you hand out other documents, Senator Mason, if Senator Brandis has folded his line of questioning then now is probably an appropriate time for him to- Senator BRANDIS-Absolutely. I table the document that I have been directing Admiral Shackleton's attention to. It is a document that was supplied to the committee last Thursday, but I formally table it. CHAIR-Before you formally table anything-I take that as a statement of intent to table-I just want to say that this is a document in possession of the committee which you have now unilaterally sought to table without first obtaining the permission of the committee so to do. Senator BRANDIS-If I need to- CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 79 CHAIR-If you do not mind, I am speaking, and you will be quiet while I am. The normal procedure, in my understanding, is that the release of documents tendered to the committee is a decision for the committee. I was aware of that when you started and I let you go-so I make that observation: I let you go. But I do think this behaviour of introducing documents that are in the possession of the committee and pre-empting the rights of other committee members to have a say in their public disclosure is something for the committee to debate in a private session. It is not a procedure that I would want to encourage. On this occasion I have let it go, but on a future occasion-and this applies not just to you but to all members of the committee-I think the appropriate course is the traditional one of the committee making decisions about documents in its possession and the release of those documents. Senator BRANDIS-Senator Cook, may I say in my own defence-and I thank you for your observation-that when I wrote to the Minister for Defence last Thursday I was careful to frame my request as a request that the document be supplied to me and to other members of the committee. As I understand it, the document has been supplied both to the committee corporately and to me individually. Whether it concerns my capacity as a member of the committee and as the personal recipient of the document or my capacity as a person in custody of a document given to the committee, it is the same document, one way or another. I put it before the witness, nobody suggested that this was not directly germane to term of reference (c), The matter has been examined at length without objection and the document is now before you in whatever form is appropriate. CHAIR-I have said what I have said; I am not going to repeat it. You introduced this document to the committee and, subsequently, I am advised by you and by the secretariat that so did the minister. The remarks I have made are remarks that I do not wish to vary in the face of that explanation. The document is now before us. Is it the wish of the committee to make this document public? Senator BARTLETT-We have not made public any other document or the other submissions or anything else that we received some time before, have we? CHAIR-No, we have not. Senator BARTLETT-So this will be the first document that we publish. CHAIR-That is my understanding. If it is the wish, that is so granted. The document is now tabled for public information. Senator Mason, do you want to go down this course too? Senator MASON-Yes. CHAIR-This concerns a new document which is not in the public domain either-well, it may be. Senator MASON-Correct. I brought it to the notice of the committee previously- CHAIR-It is not a document for the committee-I think that is the relevant point. The author and the recipient of this document are outside our immediate purview, so I think you are free to proceed on this document, but would you please identify it for the rest of us? CERTAIN MARITIME INCIDENT CMI 80 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-Are we to table this document as well, or are we just providing it to the witness? Senator MASON-I have no opposition, Chair. CHAIR-I understand that it is the intention of Senator Mason to ask questions based on this document. Senator MASON-Just a few questions, yes. CHAIR-In which case I think it is appropriate that the document on which the questions are based be made available. Senator FERGUSON-Are you suggesting that in times past either government or opposi- tion senators have not quoted from documents that they have themselves and have not made public to every other senator? CHAIR-No, and I never said that. Senator FERGUSON-So why should you make that request of Senator Mason? CHAIR-I was in the process of identifying what it is. In fact, I think I said to Senator Mason that I do not think that this is a document the origin of which comes from the committee or the recipient of which was the committee, and it is outside our purview. I think I said that, or words to that effect. Therefore, I do not think it is necessary for us to release it. But, because it is going to be the subject of an examination by a member of the committee, I think in due deference to the person being examined and those watching these proceedings they should know what the document is and have access to it. That is fundamental and elementary. Senator MASON-I think that is right. Senator JACINTA COLLINS-Courtesy, Senator Ferguson. Senator FERGUSON-Does that mean we will get all Senator Faulkner's documents that he quotes from in future? CHAIR-If Senator Faulkner did exactly as occurred here, I would ask him the same question. Circulate it to the committee and provide it to the admiral, please. Senator MASON-Senator Ferguson mentioned that there was some criticism from the press about the performance of the RAN but not much praise. I wanted to draw your attention to that document. You see a letter from the Leader of the Opposition to the Minister for Defence, Senator Hill, dated 4 March. Vice Adm. Shackleton-That is what I have in front of me, yes. Senator MASON-The first paragraph of that letter reads: CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 81 Dear Minister I write to request that you inquire into an allegation that Australian naval ships witnessed a sinking refugee vessel on 19 October 2001, and did not provide assistance. Vice Adm. Shackleton-Yes. Senator MASON-If you go to the first page of the letter attached to that letter, it is addressed to the Leader of the Opposition, Mr Crean; the Leader of the Opposition in the Senate, Senator Faulkner; Senator Stott Despoja; Senator Bartlett; Senator Brown; and the Clerk of the Senate. That is correct? Vice Adm. Shackleton-Yes. Senator MASON-The heading of the letter is: Dear Sir/Madam A REQUEST THAT THE SENATE URGENTLY INVESTIGATE, IN THE CONTEXT OF ITS CURRENT ENQUIRIES INTO NAVAL ENCOUNTERS WITH VESSELS CARRYING ASYLUM-SEEKERS, A SURVIVOR'S ACCOUNT THAT AUSTRALIAN NAVAL PATROL SHIPS WITNESSED A SINKING REFUGEE VESSEL ON 19 OCTOBER 2001 IN THE SUNDA STRAIT, BUT DID NOT TRY TO RESCUE SURVIVORS Is that correct? Vice Adm. Shackleton-Yes. Senator MASON-I think the person who wrote the letter is basing that allegation on an article in the Australian of 21 December 2001. In the third paragraph of the letter there is a quote from that story. Let me read it: "The survivors say two boats, which their rescuers told them were Australian border patrol vessels, shone floodlights on them but did not help. A spokesman for the Defence Department said the closest ship was the HMAS Arunta, which was 230 nautical miles south of the spot." My question to you is: is it true that Australian naval patrol vessels witnessed a sinking refugee vessel on 19 October 2001 but did not try to rescue survivors? Vice Adm. Shackleton-Absolutely not. Senator MASON-That is incorrect-it is wrong? Vice Adm. Shackleton-Absolutely. It is completely wrong. Senator MASON-Are you sure of that? Vice Adm. Shackleton-Yes, I am. CERTAIN MARITIME INCIDENT CMI 82 SENATE-Select Monday, 25 March 2002 CHAIR-I have got a few questions, Admiral. I think I might just pick up the baton at this point, if I may. My usual procedure is to wait until last, but this time I promote myself up the order. I was going to ask you to tell us what the last document that Senator Mason has kindly provided you with says, but I think I can make this statement: the Leader of the Opposition is not saying that that happened. The Leader of the Opposition is simply seeking advice from the Minister of Defence, having received a complaint which hypothesises that it may have happened. He is seeking comment from the Minister of Defence on what he has to say about this. I might just say, for myself, that I think that is a responsible course of action for the Leader of the Opposition to take. Senator JACINTA COLLINS-Do you know if the minister has responded? CHAIR-No, I do not know. That is for the minister to reply to. I also note that the author of the hypothesis contained within that letter has put a submission to this committee. Since this matter is now before the committee, is it the wish of the committee that the submission lodged by Mr Tony Kevin be made public? There being no objection, it is so ordered. I note as well that in my opening statement this morning I said that people who are referred to under parliamentary privilege will, as far as I am concerned, have the right of reply under privilege to answer any allegations made. I do not think that Senator Mason has made an allegation-I want to say that clearly. He has simply taken a hypothesis and asked the admiral for a reply. I just want to be clear about that. I think, though, that if there is any further weight to be given to this matter-and I express this as my view, and not on behalf of the committee- there is a probable case for Mr Kevin, if he so wishes, to appear and give evidence. Having said that, let me go to a few questions, if I may. You can refresh our minds on this-at the beginning of your examination by Senator Brandis you made some upfront disclaimer, if I may use those words, that you are not the right person to have these questions asked of, and that there is some other officer who can, I think your words were, tell us `chapter and verse' what actually happened. Is that right? Vice Adm. Shackleton-I am happy to talk where I can in the broad, but, for the purposes of accuracy, I would defer to others who I know have expert detailed knowledge. I am quite happy to tell you where I think that that can be provided, which might aid you. But I guess that is on a case-by-case basis. CHAIR-Can you just identify again, for the record, who is the officer that you believe can, as I think you said, tell us `chapter and verse'? Vice Adm. Shackleton-In relation to the SIEV4 incident, blow by blow, I think you would want to talk to Commander Banks. In terms of the detail of other SIEV incidents, in a much higher level of detail than I can talk to you about, you would want to talk to the Maritime Commander, who is Rear Admiral Smith. CHAIR-I think that, as well, you said-and I am just seeking for you to correct me here, and please do so-that the document from which Senator Brandis quoted in his examination of you was not something that you recall seeing, although you noticed that your name was on the list of people to whom it had been provided. Is that right? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 83 Vice Adm. Shackleton-That is correct. I had seen a version of this document that was constructed slightly differently. I would have to check to see that the information has been faithfully carried across, but I recognise the way in which the information is presented and, without checking, I would-perhaps incorrectly-make the assumption that it has been transferred properly. CHAIR-The document has a covering letter in the form of a minute from Australian Defence Headquarters Strategic Command, signed by A. W. Titheridge. I should indicate that it is probably to A. W. Titherage that I will address my major questions relating to this document, since he appears to be the author or the responsible individual in relation to it. Vice Adm. Shackleton-He would have collated that information provided from within his own organisation and from information available elsewhere in the command chain to compile that list. CHAIR-Under the heading `Unauthorised arrivals information' there appears the reference `Telcon COS MINDEF/CN SEC 28 Feb 02.' Can you tell us what that means? Vice Adm. Shackleton-That is a reference to a telephone conversation between the chief of staff for the Minister of Defence-in this case it would have been Minister Hill's chief of staff-and my secretary, who is my principal staff officer. It relates to a request from the minister's office to me to provide this information to the minister's office. I had my chief staff officer-or secretary, as he is referred to here-talk to the minister's office and say that the appropriate place for that to come from was Strategic Command, which was dealing with these SIEV incidents because of their operational nature. CHAIR-Did the request to gather this information originate from your office-from your secretary-or from the minister's office? Vice Adm. Shackleton-As far as I am aware, it came from the minister's office. CHAIR-Would that have been on 28 February? Vice Adm. Shackleton-Probably a day or so before. CHAIR-You were asked a number of questions by Senator Brandis, in which he read to you what was in the document. In the first one-he did not always ask you this question-he asked, `Is what I have read what is printed there?' to which you replied, `Yes.' That answer does not mean to say that you verify what is written there, does it? It just means that Senator Brandis has conveyed to you accurately what is written there. Vice Adm. Shackleton-In most cases; yes. There are areas where I am aware of the detail, and there are areas where I am not so aware of the detail. CHAIR-This document may be a third or a secondary source; it is not a source document containing the original reports, is it? CERTAIN MARITIME INCIDENT CMI 84 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-No. It is a compilation of information over a period of time, which was put together to create the chronological history of the events, and what occurred in relation to those events, from SIEV1 through to SIEV12. CHAIR-In the chronological history, I was thrown by the dating of these reports. I think you have cleared up how that date is read. I was reading the last number in the line of numbers as being the day, but it is actually the first. Vice Adm. Shackleton-Yes. We have a methodology of having the date, followed by a four-figure time group in 24-hour clock format, then the letter to indicate the time zone-some- times it is `z'-zulu, sometimes it is `k'-kilo and sometimes it is `I'-India/`k'-kilo'-then some- times a check digit after that letter, followed by the month. CHAIR-Some might say that one of the reasons for this inquiry is that the events that occurred-whatever they were-in one place, got transported through a line of command, or by some other means, to another place and that, in the transmission of that evidence, by whatever means, there were foul-ups, inconsistencies and so forth. That is one of the things that we are inquiring into: what they were, how they occurred, who knew what, and when. Are you able to say that the information contained in this report is accurate, to your personal knowledge? Vice Adm. Shackleton-I did not go back to the primary source. You would have to go back to the primary source for that, but the way it is written indicates to me that it was written by people with access to primary information. CHAIR-From the primary source? Vice Adm. Shackleton-Yes. CHAIR-But there is always the possibility that, in the translation of the primary source- which is the very thing we are inquiring into-mistakes occurred. Vice Adm. Shackleton-That is always possible. CHAIR-Following the Tampa incident, were the rules of engagement for ships in this particular theatre, or this region, changed by the Navy? Vice Adm. Shackleton-I do not set the rules of engagement; the CDF sets the rules of engagement. CHAIR-So you are not the right person for me to ask that question of? Vice Adm. Shackleton-No. Again, the Maritime Commander, Air Vice Marshal Titheridge or Admiral Ritchie would be able to deal with that. This can work two ways: either a commander lower down, such as Admiral Ritchie or Admiral Smith, can ask for a rules of engagement change to meet what they think are the circumstances that they will find themselves in, so that they have operational flexibility to deal with the contingencies that they see might emerge, or they can be set by the CDF himself as part of the overarching arrangements under CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 85 which we are going to operate-and, to complete that, the CDF in the end, and often with the agreement of the minister, will authorise the rules of engagement. CHAIR-Are you implying to me-I am happy if this is what you are implying, because I will go to the correct person-that it is not appropriate for me to ask you a question about what may be an element of the rules of engagement? Vice Adm. Shackleton-You could try me, Senator, and, if I do not know, I can tell you. CHAIR-Let me ask you the question: I do not know how it would be expressed in Navyspeak-and I mean that term nicely-but, in layman's language, was one of the rules of engagement not to rescue people from the water unless their vessel was sinking or had sunk? Vice Adm. Shackleton-No, we would not operate that way. CHAIR-You would not operate in that way. Vice Adm. Shackleton-No. CHAIR-So I can see the answer correctly, if their vessel had sunk, you would rescue them. Vice Adm. Shackleton-Yes. CHAIR-If their vessel was in imminent danger of capsizing or sinking and people were leaving the vessel, would you rescue them in those circumstances? Vice Adm. Shackleton-We did that. CHAIR-You did do it? Vice Adm. Shackleton-Yes. CHAIR-It is not clear from this report, is it, as to what the circumstances always were in the case of all the vessels that you have been asked about? Vice Adm. Shackleton-That information will be available. CHAIR-But it is not available in here. Vice Adm. Shackleton-I think there are some where the information is more detailed than others, but there are obviously generalisations in some parts of it. CHAIR-Just on the subject of generalisations, one of the issues that we will doubtless get around to talking about as this committee wends its way to its final conclusion-over however many days of hearings that it takes to do so-is an argument that I have read about in the media that people holding children up on board a vessel could be interpreted as threatening to throw them overboard or could be interpreted, in other circumstances, as saying, `Look, there are CERTAIN MARITIME INCIDENT CMI 86 SENATE-Select Monday, 25 March 2002 children on board this vessel-back off or go easy.' Is that second version something you are familiar with? Vice Adm. Shackleton-I am familiar with the argument, but I do not know whether I would agree with it or not. CHAIR-That means that you are agnostic. Vice Adm. Shackleton-No, it means that I would not agree with it. CHAIR-You do not agree with it? Vice Adm. Shackleton-No. Somebody holding a child upside down by the leg- CHAIR-No, I am not going to that incident. Vice Adm. Shackleton-does not, to me, seem friendly. CHAIR-It does not seem to me to be very friendly, particularly for the child-you would be traumatised. Vice Adm. Shackleton-Yes. CHAIR-Senator Faulkner, you seem to be indicating that you would like to ask a few questions. Senator FAULKNER-Yes, I would also like to ask a few questions of the Admiral. Admiral, could I please take you to the events of 8 November. You indicated in your opening statement today, or you outlined for the benefit of the committee, what occurred on 8 November. Thank you for that. It does seem-as you said-in part to be similar to some of the information that you provided to General Powell in the preparation of his routine inquiry. Committee members have had the benefit of seeing a copy of your and other witness statements for both General Powell's and Ms Bryant's reports, and I hope that they will be able to be released shortly, after the appropriate decisions have been made at the committee level. I wondered, first of all, in relation to that submission to General Powell, whether that was the only contact you had had with General Powell or whether there was any other contact-but it is the only copy that we have in the witness statements that I have been able to identify. Vice Adm. Shackleton-I had a verbal discussion with General Powell shortly after he took on his role, at which time I think I discussed with him the generalities of some of my thinking and gave him some suggestions as to where he might go and make inquiries to get to the detail, in that he was an Army officer and he was going to spend a fair bit of time dealing with the Navy-in part-which is why Commander Noonan was provided as his assistant, to help him through the maze of the Navy. I then undertook, after he circulated a request to people generally, to respond to what you knew at the time-and that is what I have written down there. I am aware that I have probably made a number of assertions that may not stand up to the full CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 87 investigation of fact, because I guess I was going off a certain amount of hearsay, but in the end that was factored in to all of the general's report. Senator FAULKNER-Okay, so your first discussion about the generalities went more to the general light that you might be able to shed on this from a Navy-wide perspective as opposed to your own role. Would that be fair? Vice Adm. Shackleton-What, in terms of my conversation with General Powell? Senator FAULKNER-Your first-the verbal communication you had with the general. Vice Adm. Shackleton-As I remember it, it was saying to him that you would get the details of the issues from Maritime Command, Strategic Command and the Adelaide. In part it was also questions from him as to how he might seek out information from within the Navy and other parts of the defence organisation, and in terms of some views that I had about where, if there had been an issue where it had gone wrong, I would probably start to look myself. Senator FAULKNER-So it does not really go specifically, at that stage, to the detail of what occurred on 8 November? Vice Adm. Shackleton-No. Senator FAULKNER-Thanks for that. You mentioned also, in answer to my earlier question, some assertions which may or may not have held up. Would you be able to identify those assertions for us? Vice Adm. Shackleton-Yes. I think in my remarks to General Powell I made some assertions about what Brigadier Silverstone may or may not have said-and they were third- hand. That is probably the main area, because I, frankly- Senator FAULKNER-Would that be in part k of your witness statement? Vice Adm. Shackleton-There is that, and I think the other thing that was hearsay was part b-although I think subsequently the inquiry, the Powell thing and the Bryant report, seemed to make that turn to be accurate. Senator FAULKNER-So, with the benefit now of hindsight, in relation to part k you had the advantage of having had a discussion with Commander Banks but not Brigadier Silverstone. Is that the point you are making? Vice Adm. Shackleton-I certainly spoke to Banks but I did not talk to Silverstone about his side of the conversation. Senator FAULKNER-So are you saying to the committee that this witness statement in a sense reflects the nature of the discussion that you had with Commander Banks? CERTAIN MARITIME INCIDENT CMI 88 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-Yes, and the other part of here where, again, it is hearsay-but whether it is fact or fiction I do not know-is part q on the last page. Senator FAULKNER-What element of that? Vice Adm. Shackleton-I had discussions with Admiral Ritchie and Admiral Smith on the afternoon of 8 November. If you remember, I said I had been out of the country and I was in a real state of catch-up mode to find out what had gone on and who had said what to whom. In the conversations I had with those people I felt that I had been led to believe that the minister's of- fice was aware of the true assessment-what the tape and the photographs represented. But I have no way of saying that that was true. Senator FAULKNER-Going back to both your witness statement and the opening statement to the committee, I think it is fair to say that you draw significantly on your witness statement for the opening statement that you made to the committee. That is reasonable, isn't it? Vice Adm. Shackleton-That is quite right. Senator FAULKNER-You made the point that, while you were in Western Australia, the statements that you made on the wharf there became a public issue of some notoriety-if you like-really while you were in the air flying back east. Is that right? Vice Adm. Shackleton-No, I was still in Western Australia at that stage of the game. Senator FAULKNER-Were you? I see. So where did you actually issue the `clarifying statement'? Vice Adm. Shackleton-As I remember it, Perth was three hours behind Sydney. I think I spoke to the media at about 12.30 p.m. Perth time, which would have been 3.30 p.m. eastern time-so it was in time to get in before the five o'clock deadline for the eastern state news arrangements. Then I think it was at about six o'clock eastern time, which would have made it three o'clock Perth time, that I became aware of the furore. I then spoke to Ms McKenry and then had that other statement sent out. In the interim, as I have said, I spoke to Mr Hendy to find out what his concerns were. Senator FAULKNER-Yes, but actually you were in Perth, and Mr Hendy-you told us at the estimates committee-called your office at Russell. Vice Adm. Shackleton-I think, as far as I was aware, he was in his Canberra office. Senator FAULKNER-Yes. Do you know who he spoke to in your Canberra office? Vice Adm. Shackleton-I think he spoke to my chief staff officer, Captain Goldrick. I had had my telephone turned off during the time that we had been on the wharf at Stirling. Then when I turned it on again there was a message to call, which I did, and that is how I found out about it. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 89 Senator FAULKNER-Have you been able to ascertain from Captain Goldrick what Mr Hendy actually said? Vice Adm. Shackleton-No, and I have not beyond that day said much to him about that particular question, other than he said that Peter Hendy was trying to get in contact with me over this issue, at which time I then phoned Mr Hendy. As I remember it, I could not get through to him the first time, but then I think he called me back. Senator FAULKNER-Did Mr Hendy just make the one contact with your Canberra office; do you know? Vice Adm. Shackleton-No, I do not know. CHAIR-Shall we break? Senator FAULKNER-Absolutely. I am sure that Vice Admiral Shackleton would agree. Vice Adm. Shackleton-Absolutely. I always agree with you, Senator. CHAIR-I think you have got the opportunity for a caffeine hit, Vice Admiral. Vice Adm. Shackleton-I would be happy with that. Proceedings suspended from 3.21 p.m. to 3.32 p.m. CHAIR-We will now resume. Before I give the call to Senator Faulkner, on our indicative list of witnesses, we have fallen well behind the clock. I foreshadow to the committee that before we rise for the dinner recess we might take a moment to see whether we can agree on offering any advice to witnesses who are listed for today but who now appear not likely to be required today so they do not have to waste their evening. There might be one or two other housekeeping matters. I see that we all agree. Senator FAULKNER-Thank you. I want to clarify with Vice Admiral Shackleton what information we might glean by contact with Captain Goldrick. Just so we can do that, you had one conversation with Mr Hendy? Vice Adm. Shackleton-Sorry, can I clarify? I can have somebody call Captain Goldrick, who is on a ship in the Persian Gulf, and we can put questions to him that way if you choose. They would be, I guess, questions in the broad about how many times phone calls were made. Would that satisfy you? Senator FAULKNER-I would not want you to go to a huge amount of trouble. What I would ask you to do, maybe, is take some questions on notice and progress it that way. That is fine. What I am trying to clarify is what information we need before we finalise that, if that is helpful- Vice Adm. Shackleton-Yes. CERTAIN MARITIME INCIDENT CMI 90 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-just to save time if we can. You only had the one conversation with Mr Hendy? Vice Adm. Shackleton-That is my recollection. Senator FAULKNER-I am wondering if Captain Goldrick or other members of your staff may have had other conversations between the first doorstop interview you did on the wharf at Stirling and the issuing of the so-called clarifying statement. That may involve Captain Goldrick. I suppose what I am trying to be clear about is whether that in fact involves any other officers. Vice Adm. Shackleton-I would have to check with my office. If Hendy was going to ring, he would either ring me direct, depending on the nature of the business, or he would have phoned-other than that, Captain Goldrick, who was my point of contact for all ministerial dealings. If Goldrick was not available to take that call, then I have got a number of other people in the office who would have taken a message and then forwarded it on. I can ask in my office to see whether there was anybody who took any calls about that time. Senator FAULKNER-I am interested in the number and nature of such communications. I know we dealt with this at the estimates committee, which is why I do not want to get bogged down in it too much, but if you could ask that of Captain Goldrick at a reasonable time-given that he is in the Gulf, ask him at some time that suits all concerned-and if you could also ask other staff members who might be a little more available, that would be helpful. Vice Adm. Shackleton-I can tell you whether anybody had any contact with Hendy on that day. Senator FAULKNER-With Hendy or other members of the minister's staff. Vice Adm. Shackleton-We can do that. Senator FAULKNER-Does all contact go through to your Canberra office, or do you have staff who travel with you? For example, when you are at Stirling, do you have any staff who travel with you there? Vice Adm. Shackleton-I have a more junior ranking officer who typically travels with me, but Goldrick would typically be in Canberra doing what he does, which is essentially Canberra based coordination of my office and my affairs-and by `affairs' I mean the business of the Navy. Senator FAULKNER-But in this case, how does the communication go from Canberra to you? It is not all direct. I am sure the Chief of Navy would not get bogged down with every single communication, so you would at least have someone, or some people, around you to assist you with that. Vice Adm. Shackleton-On that particular occasion there was the media adviser, Mr John Clarke, who was outposted to my office from the PACC organisation. He was there as a strategic communications adviser-a corporate communications and public affairs adviser. I am CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 91 trying to think who else was there. My flag lieutenant-as the title is called-is predominantly there to make sure that I get to where I have got to go at the right time. So if there were any media contact that day, it would have gone through Clarke from PACC, or, indeed, from the minister's media adviser. Other than that, it would have gone to Goldrick, who would then phone me direct to get resolution or for me to decide what action was going to be taken. Senator FAULKNER-We have all got Mr Clarke's witness statement. He talks about in- formally viewing correspondence from Brigadier Bornholt on the 8th. That, I assume, occurs in Perth? Vice Adm. Shackleton-I have not seen that- Senator FAULKNER-Well, if he is with you in Perth, it must happen in Perth. Vice Adm. Shackleton-I guess so, and he may well have done things which I was not privy to. Senator FAULKNER-I think that is the other thing that we need to understand, Admiral, just in terms of this, because I was asking you a number of questions about what occurs between your original doorstop interview and the production of what is described as the clarifying statement. So if you could add to the question that you have taken on notice, in relation to the Canberra operations, any of the operations that might involve Mr Clarke or others at the Perth end, that might be useful too. Vice Adm. Shackleton-I can ask those individuals if they had contact with PACC or the minister's office about this issue. Senator FAULKNER-Yes, it is contact with the minister's office or PACC, the number of contacts and a small amount of detail about its content and nature. Vice Adm. Shackleton-We can provide that. Senator FAULKNER-That would be useful. However, I appreciate the point you make. Your only formal communication that you are personally involved in with the office of the Minister for Defence is your direct conversation with Mr Hendy? Vice Adm. Shackleton-That is correct. Senator FAULKNER-I assume that we can categorically rule out any contact from the Prime Minister's office as well with you or your staff members either based in Canberra or with you in Perth? Vice Adm. Shackleton-There was certainly no contact with me from any other organisation, and by that I mean the Prime Minister or his staff or Minister Reith or any other member of his staff. CERTAIN MARITIME INCIDENT CMI 92 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-Thank you for that. In relation to the other lose end, as you are checking that other information, could you just let me know if there was any contact with the PMO as I would appreciate that. Vice Adm. Shackleton-Yes, I will. Senator FAULKNER-Thank you very much. Going to some of the issues we are dealing with, just for absolute clarity's sake, I think you can be pretty precise-can't you?-about when you realised that the photographs of the kids in the water do not actually depict kids being thrown overboard but rather the rescue of 8 October 2001. I just wondered if, for the sake of the record, you could be clear on that. Vice Adm. Shackleton-I am clear. As I say, the Maritime Commander sent me those emails on 9 October. I saw them on the ABC 7.30 Report the next night. I cannot recollect which day they were on the front page of the newspaper, but as soon as I saw them on the television I spoke to CDF by telephone to tell him that I thought that the photographs were being linked to the wrong event. Senator FAULKNER-And that time? Vice Adm. Shackleton-That would have been about 7.45 on the evening of 10 October. Senator FAULKNER-Thank you. Would you be able to shed any light on the nature of the conversation that you had with CDF after the photographs were screened on the 7.30 Report? I do not want to put words into your mouth, so it is best if you just tell us. Vice Adm. Shackleton-You mean the phone call I had with the CDF? Senator FAULKNER-Yes. Vice Adm. Shackleton-As far as I can recollect, I said I had just seen these photographs appearing on television and they don't have captions but they are linked to the wrong event- that is, they are not photographs of people being recovered after having been thrown over the side. They are people being recovered from the boat sinking. He then said that COMAST, Rear Admiral Ritchie, had already called him just prior to my call and he thanked me for the call. Senator FAULKNER-Did you glean from that conversation, or was the matter discussed, as to how ministers might be informed of this? Vice Adm. Shackleton-I seem to remember asking him, `Would the minister be told about this?' I got the impression that the CDF intended to talk to the minister about it and I got that also when we were in the Senate-I think it was on the 20th-I thought the CDF made remarks and, in relation to questions about this, that he had spoken to the minister. Senator FAULKNER-I am asking that just from the perspective of that conversation, that you got that impression? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 93 Vice Adm. Shackleton-Yes. Senator FAULKNER-In relation to further communications that you might have had with CDF first of all on 11 and 12 October, did this matter then go off the boil? Vice Adm. Shackleton-As I said, I can remember having a discussion with the CDF, the brigadier and Ms McKenry after we had finished a briefing of the Strategic Command group- on what issue it was I cannot remember; it may or may not have been a SIEV related incident; there was a lot going on at the time-where I said that, from my perspective, I wanted to know what we were going to do about getting into the minister's office the advice that the photos had been portrayed in relation to the wrong incident. At that stage, I think Ms McKenry or Brigadier Bornholt said that they were trying to do that. From my recollection, the brigadier said that he had told Mr Hampton of the incorrect linkage, but after that I was not aware what was going to be done about it or what was in fact done about it. Senator FAULKNER-You knew about the photos not depicting an actual incident of children being thrown overboard by 7.45 on the evening of 10 October? Vice Adm. Shackleton-Yes. Senator FAULKNER-When did you know that the claims that children were thrown overboard were not correct, which is of course a different issue? Vice Adm. Shackleton-When I returned from overseas on 7 November, I travelled from Adelaide to Perth with the Maritime Commander, during which time I became aware that the video did not show people being thrown over the side. I then visited the ship on 8 November and looked at the tape and, as I said in my opening remarks, I had a half-hour discussion with Commander Banks about it all. At that stage of the game, certainly the video did not portray to me that people had been thrown over the side, other than, as I have said, that there was somebody being held over the side with what I thought was the intent to throw. I think it was on 8 November that it was clear, certainly from the evidence I had, that there was nothing to support the notion that somebody had been thrown in the water. Senator FAULKNER-I was going to ask you separately about the video, because I heard what you said in your opening statement-and I appreciate that-and what is in your witness statement. It is fair to say in fact that on the morning of 8 November you knew two new things. Again, I would just like you to indicate whether I have got this right. First of all, you knew that the video did not depict any child being thrown overboard? Vice Adm. Shackleton-Yes. That would have been about 10.30 or 11 o'clock Perth time. Senator FAULKNER-My second point is that, as a result of that evidence, you came to the conclusion that there was no truth to the story that kids had been thrown overboard? What I am trying to understand is whether you came to the conclusion about those two separate things as a result of seeing the video. I appreciate what you have said about the video-that is clear-but the other question I am asking you of course is about the actual veracity of the claims that kids had been thrown overboard. CERTAIN MARITIME INCIDENT CMI 94 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-As I said, I spent 30 minutes, or thereabouts, with Commander Banks. He was quite emphatic that nobody had gone in the water, and the video that I saw backed up what he said. He had no doubt in his mind that, irrespective of what was said up front, the reality was that no kids had been thrown in the water. Based on his strength of conviction and on the video, which I saw, one would have to believe him. Senator FAULKNER-Thank you for that information. It was with that information, pre- sented to you a very short time earlier that day, that you then did your doorstep-I mean door- stop-on the wharf at Stirling? Vice Adm. Shackleton-It did feel like a doorstep. But, yes; that is what happened. Senator FAULKNER-The committee is interested in what occurred after the doorstop, through to the so-called clarifying statement. You have taken some questions on notice about staff interactions, and I appreciate that. You have indicated in your statement where the clarifying statement was drafted, or who drafted it. I will have to look for that-unless you can point me to the paragraph number. It is Ms McKenry and others. Vice Adm. Shackleton-It is in paragraph 1.4.23. Senator FAULKNER-That is basically Captain Goldrick and Ms McKenry? Vice Adm. Shackleton-No, Ms McKenry, as the head of PACC, Public Affairs and Corporate Communication, drafted it. She and I talked on the phone. After we had made a number of changes and propositions and more changes, the release was sent out the way it was. Senator FAULKNER-The statement was not cleared with the minister's office, was it? Vice Adm. Shackleton-Not that I am aware of, but I honestly cannot remember. I said that I was happy with the statement and that, as far as I was concerned, it should go as it was; but, to be honest, I cannot remember whether or not that was cleared with the minister's office. Senator FAULKNER-But your discussion with Mr Hendy was what led to the clarifying statement later on? Vice Adm. Shackleton-Yes, it was. If McKenry was required to get clearance on it from the minister's office, then she would have been the one that did it. Senator FAULKNER-In paragraph 1.4.22 of your statement, you say: In talking to Hendy- I interpolate here that that is the one discussion you have with him- I gained a strong impression that he had not been told that the original report was incorrect, and this came as a surprise to me. Vice Adm. Shackleton-Yes. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 95 Senator FAULKNER-Did you correct it with him? Vice Adm. Shackleton-At that stage, I needed to get more information. The conversation I had with Hendy then led me to conversations with Admiral Ritchie to find out more about what had been said by whom to who else. As I think I said earlier, when I made those statements to the press my expectation would have been that the original story, now about a month old, would have been corrected. It was the case that-certainly in the ship Adelaide, as I subsequently found in a message from the ship, dated, I think, 10 October-by 10 or 11 October there was some feeling that no children had been thrown over the side. In my own case, I was, for whatever reason, not privy to that at the time. Senator FAULKNER-We have just established that by the time that you had your discussion with Mr Hendy you knew three things. You knew a lot more than three things but, at least in relation to this incident, you knew three things: one, you thought that kids were not thrown overboard- Vice Adm. Shackleton-Correct. Senator FAULKNER-Two, you knew that the video on HMAS Adelaide did not depict kids being thrown overboard. Vice Adm. Shackleton-Yes. Senator FAULKNER-And, three, you had known for nearly a month that the photographs in the water, the so-called evidentiary support of the claims that kids had been thrown overboard, did not depict kids who were thrown overboard at all but, rather, events on another day-the sinking of SIEV4. Vice Adm. Shackleton-Yes. Senator FAULKNER-So I think, Admiral, the discussion you had with Mr Hendy is important. Given that you knew all that, you say in your statement-and I accept it-that you talked to Hendy, you gained the strong impression he had not been told the original report was incorrect and that this came as a surprise to you. I accept that. What I find hard to accept, given your state of knowledge of these events, is that you would not say it to him. You may have said it to him, but I want to be really clear on this because I think it is an important point. Did you tell Hendy any of these three things that you knew? Vice Adm. Shackleton-Senator, I honestly cannot remember. I had seen the video. The video had been seen by the minister's staff, in the form of Mr Scrafton. I do not know whether Hendy had seen the video or not. It had certainly been played on television here in the eastern states by the time I had the telephone conversation with him. So I guess the fact that that tape had been played-and the minister's staff or minister's advisers had seen it and would have come to the same conclusion as I did-meant that Hendy was now telling me that I was contradicting what the minister had said. I then took what he was meaning as being that, in the technical sense, the first advice to the minister was that children had been thrown overboard. What I had not appreciated up until that time was that at no time had the minister been told that that first report was now incorrect. CERTAIN MARITIME INCIDENT CMI 96 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-Regardless of the value judgment in the latter part of your answer, there are two things. There is the ABC radio program-I think it is PM but I am not 100 per cent sure-and there is the AAP story. There are these two things. AAP says: Navy chief Vice Admiral David Shackleton said today the navy had never advised Defence Minister Peter Reith that boat people threw children overboard from an Indonesian vessel. Vice Admiral Shackleton said the navy's advice to the minister was that a child, believed to be aged about five or six, had been held over a top railing of the boat with intent to throw the child overboard. "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," They are your words: "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," To directly quote you on ABC radio: All I can say is that the video tape shows that this child was held over the side ... all that we can discern from that ... is the absolute intent to drop that child in the water. The boat from the Adelaide came underneath- the vessel at the time- and then the child was brought back inside, and that's all I can say. And then, of course, it is those statements that led to the clarifying statement. The words that are in your mouth, so to speak, as opposed to the reportage of AAP, are an accurate reflection of the situation, aren't they? Vice Adm. Shackleton-It was at the time, which is I guess what surprised him when I spoke to Hendy. I had been aware, like everybody else, of the media reporting of this early in the piece. It had then, in its own way, gone off the scope. I had been overseas and I came back and I saw this tape on board HMAS Adelaide, by which time a month had moved along. I was surprised that we were still working off the original report which, from what I could see on the tape and from the way that it was discussed with me, was now wrong. Senator FAULKNER-Yes, but you put out the so-called clarifying statement: My comments in no way contradict the minister. I confirm the minister was advised that Defence believed children had been thrown overboard. How were you able to make that final statement: `I confirm the minister was advised that Defence believed children had been thrown overboard'? Vice Adm. Shackleton-Because I checked; I cannot remember who I spoke to but I verified that that was in fact the report that the minister had been given. Senator FAULKNER-Again, this is fairly important, Admiral. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 97 Vice Adm. Shackleton-I can understand what you want to know- Senator FAULKNER- Well, I think it is important. Vice Adm. Shackleton-All I can say to you is that the fact was that Defence had advised the minister that children had been thrown over the side, or words to that effect. By the time I was dealing with this-the best part of a month later-and when I saw the videotape and discussed this with Commander Banks, it was my expectation that somebody would have told the minister that the first report was wrong. Senator FAULKNER-Yes, but for you to put a clarifying statement out two days prior to an election with this being-I don't use this language but everyone else does so it seems to be accepted now-a `hot-button' issue-whatever that means; I think we know what it means but it is just a horrible use of the English language-I think it is reasonable for me to press this question. In that atmosphere, for you to put out a clarifying statement, it is reasonable for me to ask you how on earth you were able to confirm that and who you checked it with in this circumstance. I would like to press you on that. Vice Adm. Shackleton-I am really not in a position to be able to help you. What I did was send out a clarifying statement which reiterated the facts as they then were, in that the minister had been told that the child or children had been thrown over the side and there had been no change to that advice. Senator FAULKNER-But who tells you that, given that you actually know, when you put the clarifying statement out, the three things that we have gone through: the video does not show it, the pictures relate to another incident, and you believe there is no truth to the fact that kids have been thrown overboard, for God's sake? Vice Adm. Shackleton-I cannot help you with who I spoke to there because I cannot remember. The only people I remember speaking to that day were the people from PACC, my own staff, Admiral Ritchie and Admiral Smith. Maybe they can tell you I spoke to them but I cannot remember raising this issue with them. Senator FAULKNER-I could ask them but, to be honest, on this occasion this is a logical question to ask you. It is your statement: `I confirm the minister was advised'. It is not Admiral Ritchie or anyone else who is confirming it, it is you: `I, Vice Admiral Shackleton, confirm'. Vice Adm. Shackleton-That was my belief at the time. Senator FAULKNER-But to put out such an important statement in the hothouse atmosphere, literally at the end of an election campaign, and not be able to say to the committee who you confirmed it with-after, as you say, the extraordinary amount of press and public interest in it on that day-is incredible. Vice Adm. Shackleton-But in my conversation with Admiral Ritchie, he told me that Air Vice Marshal Titheridge was the individual who phoned into the IDC with this information, which said that a child or children had been thrown over the side. That was the original report that was made to the minister and, up until I do not know when, that advice had not changed. CERTAIN MARITIME INCIDENT CMI 98 SENATE-Select Monday, 25 March 2002 Senator FAULKNER-You confirmed it but you do not know who you confirmed it with. I do find it amazing that you put out a clarifying statement given the circumstances, which we all appreciate-and I know you do, because you have said so earlier-but it is also the fact that the clarifying statement itself is so inadequate in the circumstances. Let me ask you how you can sign off on a statement that says, `I confirm the minister was advised that Defence believed children had been thrown overboard,' when at best that statement-would you agree with me?-is a half-truth. At absolute best it is a half-truth. I do not think there is any truth to it at all, but at best it is a half-truth, given your state of knowledge at the time. Vice Adm. Shackleton-I do not agree. The minister had been told that children or a child had been thrown over the side. Senator FAULKNER-But how did you know that? Vice Adm. Shackleton-From my discussions with Admiral Ritchie and Admiral Smith I knew that. I knew from the media reports and I knew generally from the circumstances that that was what the minister had been told. Senator FAULKNER-But you also knew a number of other elements. If the statement was to be a fair representation of the facts, don't you think it ought to have included the fact that you knew that, from 7.45 on the evening of 10 October, the photos did not represent kids being thrown overboard? That did not go in the clarifying statement, did it? Vice Adm. Shackleton-I saw no need to comment on the photographs. Senator FAULKNER-Why? They were the evidentiary support, through the whole of this period, that kids had been thrown overboard. The reason people say, `Oh, we didn't have to address that issue,' is that the evidence was there-and the evidence was the photographs of the kids in the water. That was bodgie; the video did not show those events taking place and you knew, when you issued the clarifying statement, that there was no truth in the suggestions that kids had been thrown overboard in relation to SIEV4. Vice Adm. Shackleton-But it is not my position to make public announcements on behalf of the minister. Senator FAULKNER-Of course it is not; I appreciate that. But it is your position apparently to make public statements to say that you have been able to confirm what the Minister for Defence was advised, but you cannot tell us- Vice Adm. Shackleton-No, what I said was: I confirm that the minister was told. That is what I said. Senator FAULKNER-Yes. Vice Adm. Shackleton-I did not say I reconfirmed it, but I knew that was the case to begin with. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 99 Senator FAULKNER-Yes, but how could you confirm it when you cannot even remember who you confirmed it with? Vice Adm. Shackleton-My point is that I was confirming this in the context of what I had been reported to have said that day, and I wanted to clarify it to make sure that people understood that I was not in the position of contradicting the minister. Senator FAULKNER-Could you say to the committee now, Admiral, how the minister was advised that Defence believed that children had been thrown overboard? Even today can you say that? Vice Adm. Shackleton-My understanding is that it went through the IDC. I go back to my original point. I am not in the operational chain of command, so I do not know what the CDF said to the minister. I do not know what Air Vice Marshal Titheridge said to the minister. But I had a very strong sense that in Defence the minister had been told that children had been thrown into the water. Senator FAULKNER-A strong impression, but it goes back to the IDC? Vice Adm. Shackleton-I had a strong impression, from the Strategic Command group and other work that I was involved in, that the minister had been told that there had been children thrown into the water. Senator FAULKNER-But how were you informed about what happened or didn't happen at the IDC? Vice Adm. Shackleton-When I discussed, on the afternoon of the 8th, with Admiral Ritchie how the information had moved around, it was his advice to me that Air Vice Marshal Titheridge had phoned through to the chairman of that committee and provided the information in that way. Senator FAULKNER-Do you regret now the statement that you made did not include some of the other elements that would have thrown considerable light on this issue, given that you made a decision to issue a clarifying statement? With the benefit of hindsight, do you regret that that clarifying statement did not go to the issues of the photographs, the video and the question of whether or not children had been thrown overboard? Vice Adm. Shackleton-Absolutely not. That was not my place. The minister had made it quite clear that that kind of information, that sort of public announcement and those sorts of details would be handled by him and his office. This was not something I had any freedom to deal with. Senator JACINTA COLLINS-How did you know that the advice to the minister had never been changed? Vice Adm. Shackleton-Hendy made it quite clear to me. CERTAIN MARITIME INCIDENT CMI 100 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-Solely from Hendy? Vice Adm. Shackleton-Hendy said to me that-I think I used the words in my paragraph 1422-that he could remember the minister being advised by Navy people of this incident and that at no time had the minister been told otherwise. Senator JACINTA COLLINS-So you confirmed with Ritchie-perhaps others-the nature of the original advice to the minister? Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-Did you not confirm with anyone whether that original advice had been changed? Vice Adm. Shackleton-Hendy was essentially telling me that the advice had not been changed. He was the chief of staff- Senator JACINTA COLLINS-You didn't confirm with anyone in Defence? Vice Adm. Shackleton-No. Senator FAULKNER-But Admiral Ritchie and the others knew, didn't they-they knew within two days that- Vice Adm. Shackleton-Well, no- Senator FAULKNER-Just hear me out. They knew within two days that the initial advice was known to be unsubstantiated and they knew within two days that the photos were out and out frauds as they related to an issue of children having been thrown overboard. They knew that-all of them. Vice Adm. Shackleton-Is that a question? Senator FAULKNER-There is a question mark at the end there somewhere. Senator JACINTA COLLINS-Admiral, I go back to an earlier point. You sought confirmation of what Hendy said to you in relation to the original advice to the minister. Why did you not seek confirmation that that advice had changed? Vice Adm. Shackleton-Hendy's conversation with me as the chief of staff to the minister said that the minister had not been told that anything had changed. Senator JACINTA COLLINS-He might as well have drafted your correction then, if that is the only advice you are relying on for not saying more in this statement other than that you are not contradicting the minister. Vice Adm. Shackleton-I had no reason not to believe Hendy. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 101 Senator JACINTA COLLINS-You checked that what he was saying about the original advice was the case. Vice Adm. Shackleton-In my conversations with people that day, by the time I was talking to Ms McKenry about what that media statement would or would not say-and this is the position I keep coming back to-the minister had been told that there had been a child or children thrown over the side and that advice had not changed. Hence, I wanted to make it clear that I was not contradicting what the minister had said. Senator JACINTA COLLINS-Admiral, before Senator Faulkner follows through- CHAIR-I think Senator Brandis is keen to ask some questions. Senator JACINTA COLLINS-There is just one more point on this statement that I want to ask you about. Did you have discussions with Captain Mal Wright in relation to making a correction? Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-Did you draft with him a correction? Vice Adm. Shackleton-No. Captain Wright participated with Ms McKenry's staff in crafting the short statement and participated with them, but it was McKenry's advice that I took. Senator JACINTA COLLINS-It is just that Ms McKenry's statement to the Powell report indicates that Captain Mal Wright had brought a statement that had been prepared in Navy headquarters down to her office; so before we got to public affairs, Navy had already prepared a statement. Did you not assist in the drafting of that statement? Vice Adm. Shackleton-I was talking to my staff, saying, `These are the kinds of words that I think ought to be put together,' but the PACC organisation is the place from where all of that is managed, so that is where they went to gain endorsement and to improve it as it was. Senator JACINTA COLLINS-Could we have a copy of that original draft statement? Vice Adm. Shackleton-I honestly could not tell you if it still exists. Senator JACINTA COLLINS-It may, though. I presume a discussion with Captain Wright would easily unearth a copy of that statement if it still exists. Vice Adm. Shackleton-It might. Senator JACINTA COLLINS-Would you take that on notice, please? Vice Adm. Shackleton-Yes, I will. CERTAIN MARITIME INCIDENT CMI 102 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-I want to take you back to your statement to the media on 8 November, when you were in Perth for the departure of the Kanimbla and the Adelaide. As I understood your evidence, and please correct me if I am wrong, you arrived at the view that you expressed in the doorstop-that is, that there was no truth to the claims that children had been thrown overboard-on the basis of two sources of information: what Banks told you and the video. Is that right? Vice Adm. Shackleton-That is correct. Senator BRANDIS-Are those the only two sources of information that you used to come to that conclusion? Vice Adm. Shackleton-No, I had a conversation with the Maritime Commander on the day preceding, and he said it was his opinion that there were no children thrown in the water. Senator BRANDIS-Remind me: the Maritime Commander being? Vice Adm. Shackleton-Admiral Smith. Senator BRANDIS-So Smith expressed his own opinion to you, but he did not purport to speak as an eyewitness, of course; he was merely expressing a conclusion rather than advising you of any facts. Vice Adm. Shackleton-The only eyewitness in this instance-should there be one-is Banks or a member of his ship's company. Senator BRANDIS-Quite; that is my point. Of course I accept that you would give some weight to the opinion of Smith, but he was not an evidentiary source, was he? Vice Adm. Shackleton-Except that I think he had telephoned and spoken to Banks at sea. Senator BRANDIS-But so did you the next day, so that is kind of the same source, isn't it? Vice Adm. Shackleton-Yes. Senator BRANDIS-The video-and I do not think this is controversial-does not show a child being thrown into the water. I do not think that is in dispute. But nor does it purport to show the whole incident, and it only shows the SIEV4 from one side. Vice Adm. Shackleton-That is correct. Senator BRANDIS-It is no evidence that a child was thrown into the water, of course, nor is it evidence that a child was not thrown into the water; it just does not tell you one way or another. Vice Adm. Shackleton-Certainly from the video you would not say that a child had been thrown overboard. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 103 Senator BRANDIS-Of course not. My point in a sense is the converse: certainly from the video you could not conclude to the contrary. It lends no evidentiary support to the proposition. Vice Adm. Shackleton-Yes. Senator BRANDIS-But it does not contradict it. Vice Adm. Shackleton-Correct. Senator BRANDIS-And then there is what Banks told you. Your words-I made a note of them-were that Banks was quite emphatic, and he said to you that there was no doubt in his mind that no children were thrown into the water. Vice Adm. Shackleton-That is right. Senator BRANDIS-And that presumably had a significant bearing upon the conclusion you then reached and subsequently expressed in the doorstop. Vice Adm. Shackleton-My view was that he was the man on the spot dealing with all of the circumstances, and he had had time to review the evidence as it had been accumulated in the ship post the event, in slower time. His opinion was now quite strongly that there had been no children thrown in the water. Senator BRANDIS-Were you at the time aware of, or had you in fact read, Banks's statement of 11 October? Vice Adm. Shackleton-No, I have not. Senator BRANDIS-In Commander Banks's statement of 11 October, he says: I DID NOT SEE ANY CHILDREN IN THE WATER. But he also says, and this is quoting from paragraph 21: 21. I HAVE SINCE BEEN QUESTIONED REPEATEDLY ABOUT THIS EVENT- That is, the question of whether or not a child was thrown overboard- (AND TO A LESSER EXTENT OTHERS) AND I AM NOW SO FULL OF CONFLICTING INFORMATION OF WHAT WAS SEEN AND HEARD BY OTHERS AND ME AND STATED BY OTHERS AND ME THAT IT IS DIFFICULT TO RECALL WITH ABSOLUTE VERACITY. Memory is a funny thing. Often the distance from an event lends a greater certainty to the mind of the witness, but the closer to an event a recollection is recorded the more likely it is to be accurate because there is no element of reconstruction or reflection. That is a fairly common phenomenon that I am sure you would have found in your own career. Would you agree? Vice Adm. Shackleton-In this instance, where the passage of time may have changed a perception, that is certainly possible. CERTAIN MARITIME INCIDENT CMI 104 SENATE-Select Monday, 25 March 2002 Senator BRANDIS-What strikes me as noteworthy is that, when he spoke to you on 8 November, a month after the incident, Banks was much more certain than he was on 11 October, three days after the incident. Vice Adm. Shackleton-There are conflicting parts of all of this, as I have said in my remarks and evidence elsewhere. Silverstone said that he recollected that Banks had said that there had been a child or children thrown over the side, and I know there are some questions about the veracity of that particular statement. Senator BRANDIS-Can I interpolate, Admiral Shackleton, that it is more than Silverstone recollecting; he has a diary note. Vice Adm. Shackleton-I was about to say that sitting in the comfort of an office, that is not rolling around in the ocean with other people trying to get your attention, is a place where you could expect to record more accurately what somebody may have said to you rather than somebody who was not taking notes and had only half a mind on the conversation that he was having with you. Senator BRANDIS-Absolutely. Vice Adm. Shackleton-As I think I have said, it does not surprise me at all that there is a conflict over this issue in terms of what did Banks say and what didn't Banks say. Senator MASON-You would describe it, would you, as part of the `fog of war'? Vice Adm. Shackleton-That term has been used. I think there is every chance that Commander Banks may have said it; I think there is some chance equally that he may not have said it. Senator BRANDIS-When you spoke of the `fog of war' most eloquently in your evidence, and which you have repeated in your opening statement today: It is fair to say that, often as not, you are dealing with millions of shades of grey and it is only as events start to get to a point of culmination that they start to form up into a real pattern ... That is, I suppose, your description of the same phenomenon that others would call the `fog of war'. Vice Adm. Shackleton-It is. You have all kinds of information, some of which makes sense and some of which does not, and you have to make judgments on what you see at the time. Doing nothing is not an option. Senator BRANDIS-In any event, we will put these questions to Commander Banks in due course. But the short point is that when you spoke to him on 8 November you had not read his statement of 11 October and you did not know what he said in that statement. Vice Adm. Shackleton-That is correct. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 105 Senator BRANDIS-Had you seen or were you aware when you spoke to Banks on 8 November of the statement made by the EOTS operator, Able Seaman Wade Theo Gerrits, on 7 October? Vice Adm. Shackleton-No, I had not seen any of that statement. Senator BRANDIS-In it, Able Seaman Gerrits says, among other things: ... I was on the Bridge manning EOTS ... During that time I witnessed and recorded ... SUNCS jumping off the SIEV by their own choice and I believe one child also went overboard. You were unaware of that on 8 November? Vice Adm. Shackleton-I was not aware of that particular statement. That is right. Senator BRANDIS-Finally, by 8 November, had you had a conversation with Brigadier Silverstone about his conversation with Commander Banks of 7 October? Vice Adm. Shackleton-No, I had no reason to talk to Brigadier Silverstone. Senator FAULKNER-Vice Admiral, I would like to ask you about the `fog of war', because I, too, am interested in this. I have read with interest what you said and I agree with Senator Brandis that what you said at the estimates committee about the `fog of war' was most eloquent. Does the `fog of war' lead one to a conclusion or suggestion that an initial report that you might receive from a commander-in this case it might be like Commander Banks, but someone at the frontline effectively-might often be incorrect or require further examination? Is that something that the `fog of war' would lead you to be cautious about initial reports? Vice Adm. Shackleton-Yes. Certainly if you know that the circumstances are very demanding and that the reports are what I would call `snapshots in time', there is a reasonable probability that they will not be factually accurate. Senator FAULKNER-Yes. So what kind of burden of proof do you think applies to cor- rections to commanders' initial reports? Vice Adm. Shackleton-They have the same burden of proof as to the formation of the original report in the first instance. Senator FAULKNER-But what sort of evidence would you demand, given that you have stressed to us how cautious one needs to be about initial reports? Vice Adm. Shackleton-I think you would be looking for correlation: you would be looking for events that make previous assertions, assumptions or statements have an increased degree of veracity. I am not sure where you are trying to get to, Senator. Senator FAULKNER-I am interested in your view on this, because you raised with senators the issue of the `fog of war'. I am reminded about the CDF's evidence and his statement-in which I think he described it as `a principle of war'-that the commander's CERTAIN MARITIME INCIDENT CMI 106 SENATE-Select Monday, 25 March 2002 initial report could only be contradicted by compelling evidence. There seems to be a bit of a difference here. Vice Adm. Shackleton-I think what he means by compelling evidence is a reflection of the events and the synthesis of all of the information that you could provide for those circumstances, and the test would be: was the first statement was correct? Senator FAULKNER-I have been told by people in Defence-and I am not an expert on this; I would not pretend to know-who basically support the view that you have expressed to this committee that a commander's initial report can only be contradicted by compelling evidence is basically a complete opposite to what every staff and command officer's working assumption might be. I do not know whether that is right or not but I am very interested, given the nature of the CDF's disparate views about the first reports, or what were allegedly the initial reports, from the Adelaide. Vice Adm. Shackleton-We place great faith in our commanding officers to make calls as they see it and for those calls-by which I mean, reports-to be informed by all of their experience in interpreting the circumstances as they see them around them. So, when the report would have arrived with the CDF-and he obviously needs to speak for himself-he would have taken that report to have had great integrity and he would not have been easily persuaded to change that assessment, unless the commander himself was quite emphatic about it. But, even then, in the circumstances it is true to say that often the first call is the right call, even though doubts start to come into your mind later on. So I think CDF was presented with a real dilemma. Senator BRANDIS-Admiral Shackleton, could I take up that very point, if I may. We speak about the first call being the right call, but the use of the word `call' implies a judgment. Vice Adm. Shackleton-Yes. Senator BRANDIS-But here we are not talking about a judgment; what we are talking about is a description of what somebody saw, so the context which judgment requires is really irrelevant here. What is relevant is: did the man see what he says he saw or didn't he? Context which might affect judgment does not affect mere description. Would you accept that proposi- tion? Vice Adm. Shackleton-I think in these circumstances, where he would have been watching a boat with people moving around-and he may have seen something out of the corner of his eye or he may have seen something which he then said `that represents somebody being thrown over the side'-I think that is both an observation and an assessment of what it meant. I think that there is a measure of judgment in that and it would have equally have been a measure of judgment as to whether he should report that at all. Senator BRANDIS-Accepting what you say, as I do, nevertheless, whether it be an observation or an assessment, it is merely the description of an observed phenomenon- something somebody saw. And even though what he saw he may have seen imperfectly, the proposition I am putting to you is that he will never be in a better position to make that assessment or to say what he saw than he is at the moment he is seeing it. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 107 Vice Adm. Shackleton-Agreed. Senator BRANDIS-That is the distinction between narration and recollection. Narration does not depend upon memory and it does not depend upon reconstruction or it does not depend upon doubts, or a man working something over and over in his mind, whereas recollection does. Would you agree? Vice Adm. Shackleton-I would agree with that. Senator FAULKNER-Anyway, what I was trying to do- CHAIR-I do not want to cut you off, Senator Faulkner, but we are getting into a situation where this is ping-ponging backwards and forwards, and I now want to clamp down a bit and give a bit of form to it. So let us finish off your questions, Senator Brandis, and let us do it without any interference from anyone else. Then let us go to the next questioner. I think we are getting down to ontological truth-whether you actually saw it or were you really dreaming! Commander Banks is waiting to come on. Senator BARTLETT-Whether we all exist. CHAIR-He is the person who was there; maybe these questions are best left to him. I am not saying they cannot be asked but, in weighing the value of them, maybe they are best left to him. Senator FAULKNER-Mr Chairman, I thought there may well have been a different view about initial reports-and I still think there is-between Vice Admiral Shackleton and Admiral Barrie but the Defence experts can deal with that, and I certainly do not claim to be one of those. Vice Admiral, were any instructions issued by you, or the Navy, to Commander Banks and his crew before the Prime Minister's visit to HMAS Adelaide? Vice Adm. Shackleton-None came from me and, as far as I am aware, there was none from anybody else either. I have interpreted that question in relation to this particular incident rather than any other form of instructions. Senator FAULKNER-I was not specific because I was not sure what sort of instructions, if any, would have been given. Vice Adm. Shackleton-The normal instructions would be related to matters of protocol and those kinds of things. Senator FAULKNER-One of our terms of reference goes to the costs of the Pacific solution. Has the Navy been able to do a costing of Operation Relex? Vice Adm. Shackleton-The Navy has been able to provide some estimates of the cost differential between what we had budgeted for under so-called normal circumstances and what we are finding our costs are in terms of the execution of the operation. So I cannot give you an CERTAIN MARITIME INCIDENT CMI 108 SENATE-Select Monday, 25 March 2002 absolute cost of Operation Relex in a box per se. I am not quite sure where the estimates process is in terms of looking at what the difference is between now and then. Senator FAULKNER-Are you able to provide that differential for the benefit of the committee? Vice Adm. Shackleton-I would have to take advice on that. Senator FAULKNER-If you wouldn't mind. Vice Adm. Shackleton-By advice I mean I would have to seek the minister's agreement to table that. Senator BARTLETT-Before I start my questions-I could have raised this point at the time but I did not want to be seen to be trying to interrupt the line of questioning-you mentioned before that people named adversely would be given the opportunity to respond. Can I clarify that that means the people on the various boats will get an opportunity to answer the allegations that were outlined today and the assertions that were made about their being evil people who engage in child abuse, moral blackmail and the like? It is a bit difficult when they are all locked away in a foreign land somewhere. CHAIR-Outside of our jurisdiction-it is a bit difficult but, as I interpret the terms of reference, that is a relevant line of inquiry and we should apply our minds to how we conduct it. Senator FERGUSON-Mr Chairman, I do not recall anybody referring to them as `evil people'. Do you? Senator BARTLETT-I do. Senator JACINTA COLLINS-Yes, I do, Senator. Senator BRANDIS-I think I did say that the conduct reported was evil. Senator FERGUSON-If you heard them talk about evil people then perhaps you can repeat it. Senator BARTLETT-Certainly I know the words `moral blackmail' were used. Perhaps you can make a judgment and report about whether they should be condemned to hell, if that fits our terms of reference. Senator JACINTA COLLINS-Such judgements are a positive, actually. Senator BARTLETT-Can I ask briefly in terms of the other document that was brought forward by Senator Mason about the concern that was raised-quoting one of the people who survived the ship that sank-that there were Australian vessels in the vicinity that did nothing. Were you aware of that concern before we raised it today? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 109 Vice Adm. Shackleton-Are you talking about the letter of 18 February from Mr Tony Kevin? Senator BARTLETT-Yes. Vice Adm. Shackleton-While I was aware that assertions had been made, that that event took place or that an Australian warship was close by, all of our records point to all of our ships being elsewhere doing other things. Senator BARTLETT-So you had been aware of it previously and investigated it? Vice Adm. Shackleton-When this allegation was made we checked all of our available information. There is nothing that indicates that we were closer than about 230 miles away. Senator BARTLETT-Thank you. I appreciate that. It is handy to clarify that it had already been examined. We have heard, in the questions that have been put to you to date, about the impact on the crew's morale-I think `morale' was the word used; you used another phrase like `state of wellbeing' or `psychological happiness'. Navy personnel had to witness children being dangled overboard and the like. This is a general question: I would be interested to know whether you have any comment on the impact on the satisfaction, if you like, of Navy personnel on the overall role they have now been given? As you said, it is a new style of operation; it is not something that Navy personnel are used to being involved in. I am not implying that Navy personnel collapse into a heap of tears every time they are faced with a difficult situation, but I presume that having to engage boats that are significantly overcrowded and marginally seaworthy with distressed people on board-women and children, and babies, in the case of SIEV4-would be difficult for them. Engaging with them generally, I presume, is something that would be fairly stressful for people. Vice Adm. Shackleton-It is stressful and difficult. We have had to introduce new training to help equip our people to deal with it. We have not been used to this kind of close quarters work in the way that it is for quite some time. When the operation commenced we had not made sufficient preparations to deal with it. We were in catch-up mode insofar as the training of our people was concerned. We have now reached a point where that training is effective and it makes a difference with people being able to deal at such close quarters with people in these circumstances. Senator BARTLETT-When was that training introduced? Vice Adm. Shackleton-I would have to check. Senator BARTLETT-After the SIEV4, for example? Vice Adm. Shackleton-Can I get some advice on that? Senator BARTLETT-Certainly. In your role as Chief of Navy, are you aware of dissatisfaction being expressed by Navy personnel, at whatever level, about having to perform this new role? CERTAIN MARITIME INCIDENT CMI 110 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-There may well be a sense of dissatisfaction by people at the personal level, as other people in Australia themselves are entitled to their personal opinions, but the thing about the people in the Navy is that they have not allowed that to stand in the way of them doing their job. Senator BARTLETT-I appreciate that probably in the Navy-or in the defence forces anyway-more than pretty much any other role in the country, people will follow orders regardless of how enthusiastic they are about them. Vice Adm. Shackleton-I do not know whether the Navy follows orders any better than anybody else. Senator BARTLETT-I will not engage in argument with you about that. Apart from the level of people personally thinking this is a bit rough, has there been concern expressed at a command level about the desirability of Navy being used in this way or the appropriateness of it in terms of that type of operation? Vice Adm. Shackleton-I would not say at the command level. Obviously we are interested in the welfare of our people-and by `welfare' I mean their wellbeing-and we do provide the opportunity for people to talk about their experiences to find a way to talk out that sense of upset or concern that they might have for the circumstances that they have found themselves in. Senator BARTLETT-You talked at the start of your statement about your responsibility, including ensuring that the Navy is able to achieve its mission and being able to fight and win- obviously Navy is engaged in some other important tasks at the moment broader than the Pacific solution. How does the fact that the government is requiring the Navy to utilise some of its resources in this type of activity impact on your broader mission of being able to fight and win in other areas? Is it stretching your capacity? Vice Adm. Shackleton-I would not- Senator FERGUSON-Mr Chairman, if I can just intervene. I think this is getting very close to asking the admiral to comment on the Australian government's policy- ACTING CHAIR (Senator Brandis)-I am sorry, Senator Ferguson. Can we have the question again, Senator Bartlett, because Senator Cook- Senator BARTLETT-We have lost a chair. ACTING CHAIR-No, I am the acting chair. The chair is indisposed. Senator Bartlett, can I just hear the question again, so I can rule on it? Senator BARTLETT-Sure. My question went to the admiral's own comment about his responsibilities including ensuring that the Navy is able to achieve its mission of being able to fight and win, and it went to whether the fact that part of the Navy's operations are being used in the Pacific solution had an impact on that overall mission in a negative way. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 111 ACTING CHAIR-I think that is a permissible question. It is relevant to term of reference (d). Senator FERGUSON-It has been rephrased slightly. Senator JACINTA COLLINS-It is like an estimates question. Senator FERGUSON-It has been rephrased, yes. Vice Adm. Shackleton-The Navy has ways and means of working out how best to apply the resources against the tasks that we are given. In this instance, we have applied ships, people and helicopters to meet this task, and we are also meeting our obligations for ships in the Gulf and on occasion ships to go and arrest poachers down off Heard Island. It is fair to say that Navy is working quite hard, but so far we are able to meet our requirements, meet our obligations. Senator BARTLETT-As I understand it, Navy vessels are still engaged in patrolling the waters in this region, even if the boats are not appearing at the moment. Vice Adm. Shackleton-Yes, that is correct. Senator BARTLETT-If this policy is to continue, this requirement for Navy to continue to do that, there have been comments, I think including from the current Minister for Defence, that you will need more resources. Is that the case? Part of what we are meant to look at is the costs across the board of the Pacific solution and, whilst I do not believe there has been any additional funding provided to Navy, obviously there are different definitions of the word `cost' other than extra dollars and cents. If it is a long-term policy, is it- Vice Adm. Shackleton-It depends on whether it becomes such a long-term activity. Obvi- ously, we do provide ongoing advice to the minister about the cost of operations and the impli- cations thereof-not just for the Navy but also for the Army, the Air Force and other elements of Defence. I think that that is done on a continuous basis. Right now, we have provided infor- mation to the minister on budget requirements, and that is being worked through the budget process. Senator BARTLETT-I do not know if that came out in any of the estimates hearings, because I was not able to be at all of them. Mr Chair, would it be appropriate to ask the committee to request information from the minister on that point? I do not think it is appropriate to ask the vice admiral for it. CHAIR-I missed the early part of what information you are asking for. Senator BARTLETT-The advice that has been provided about costs and ongoing impacts in a budgetary sense. CHAIR-I am sure that is within our purview. CERTAIN MARITIME INCIDENT CMI 112 SENATE-Select Monday, 25 March 2002 Senator FERGUSON-It would have to be put to the minister. Senator BARTLETT-Yes, that is why I am asking for us to do that. We have obviously seen an enormous amount of material about reports on the SIEV4 incident. Do all of the various SIEV incidents include that level of detail in reports of what happened at the time-that sort of minute-by-minute description? Vice Adm. Shackleton-By and large, yes. The area where we might be different is in the amount of photography that we take. Senator BARTLETT-That goes to my next question: are photos usually taken on these sorts of occasions, or was it because there was a rescue involved that there was extra- Vice Adm. Shackleton-No. It depends on the availability of photography equipment, but our practice is to take pictures wherever we can. Senator BARTLETT-You may not be the appropriate person to ask this-in which case, I am sure, you will let me know. Would that normally include assessment of the conditions of the boats and the conditions of the inhabitants-those sorts of details-as well? Vice Adm. Shackleton-Yes. Senator BARTLETT-In your opening statement, you talked about the line of command. In terms of the actual authority to make decisions, my understanding is that Commander Banks, in the SIEV4 example, would have needed authority to take people on board the Adelaide. If the vessel sank, he would obviously required to rescue people if they were in the water. But, prior to that, did he need authority from somebody else before taking people on board the Navy ves- sel? Vice Adm. Shackleton-No. His instructions would have been to turn the SIEV around and try to get it to leave Australian waters. Only if the boat had sunk or become uninhabitable, or for lifesaving reasons, would he then have taken them on board the ship-which is what he did, in the end. Senator BARTLETT-If there had been a desire to vary those instructions, what would the process have been then? Would he have made a request back through- Vice Adm. Shackleton-He would have called the commander of the joint task force, Brigadier Silverstone, who, depending on what he thought was the nature of the request, might then have asked Rear Admiral Smith, and there would have been a progressive working up the line, depending on the level and the magnitude of the change that was being sought. Senator BARTLETT-Are you aware of the submissions the committee has received from the Iraqi detainees on Manus Island who were on SIEV4, about their descriptions? Vice Adm. Shackleton-No. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 113 Senator BARTLETT-I do not think that we have published that yet, so it is a bit hard to ask you questions about what is in it. I should assure you that the detainees are full of praise of the actions of the Navy personnel. I will just briefly refer to their statements here. Obviously I do not expect them to have a full understanding of Navy processes, but they say that the people from the Adelaide told them that they had to get permission from the Prime Minister's office before they could take them on board. That would be a misunderstanding, I presume; the Prime Minister's office would not be involved in any operational decision like that. Vice Adm. Shackleton-There were times when the decision processes went all the way to the interdepartmental committee as to what action could be taken in regard to each particular incident. Each incident was treated separately and differently, and not necessarily as one that would become a precedent. Senator BARTLETT-I might ask other officers about that in a bit more detail when we get to them. You have mentioned-and you had some questions from Senator Faulkner, so I will not go over that-the media statement or interview you did on 8 November. Vice Adm. Shackleton-Yes. Senator BARTLETT-We had earlier questioning today, which you may or may not have heard, of the secretary of the department about the media policy or communications policy that was in place at the time. Vice Adm. Shackleton-Yes. Senator BARTLETT-Was that statement you made in accordance with those administrative guidelines? Vice Adm. Shackleton-Yes, it was. I asked that question myself. The minister was in Stirling-the naval base-at the time, and I checked to ensure that the authority to conduct the doorstop interview had in fact come the right way. I was told through my PACC adviser that that had been done properly. Senator BARTLETT-Right. Again, you would not be aware of this because it has been received but not published yet, but we have had a submission from the parliamentary press gallery about this. I will not read the whole thing into the record and require us to table it now. There is concern expressed there about what they call a form of censorship-their words; I will not go into that. They talk about things like the refusal to allow reporters on to Navy vessels. Is that a normal practice? Obviously, you do not let them wander on and off as they desire but in a circumstance where the ship stopped in that case in November and they were prevented access would that normally be the case? Vice Adm. Shackleton-I guess the answer is that it is fundamentally at the minister's direction. The DI(G) that Dr Hawke spoke about today-the Defence Instruction (General)- has been rewritten to accord with Minister Hill's preferences in regard to public affairs and communications generally, which are different from what they were when Minister Reith was the minister. Our preference, wherever we can, is to be open with the public, but the CERTAIN MARITIME INCIDENT CMI 114 SENATE-Select Monday, 25 March 2002 circumstances are that you would not want to put information into a public place which placed you at risk with security, operational performance and suchlike. Senator BARTLETT-Do you think there was a risk there in relation to security issues or operational performance? Vice Adm. Shackleton-In relation to what, sorry? Senator BARTLETT-In relation to the media wanting to get access to the vessel in November. Vice Adm. Shackleton-Our practice would be that when we are conducting operations it would not be typical that the media be given live coverage of what we were doing. Senator BARTLETT-Right. I understand that these instructions have now changed, so to some extent it is a redundant question but I think it is germane because of the terms of reference of our inquiry. Again, within this submission there is an allegation made-and it does not quote people, so there are the usual issues of unnamed sources-that suggests that people within Defence responsible for doctrine and training report frustration at getting accurate internal accounts of what was involved in the Navy blockade in the Indian Ocean because of the very strict communications requirements that had been put in place. They say that `the culture of secrecy'-and these are their words-`has gone too far when it harms the force's own ability to find out what its members are doing and disseminate information so lessons can be drawn'. Do you accept or reject the assessment that because of the tight control of the minister's office it did actually get to the level of impeding accurate internal information flows? Vice Adm. Shackleton-With every operation there is a degree of operational security. The minister's instruction in relation to public dissemination of information, as I saw it, was not getting in the way of internal communication for the conduct of operations. You had one ques- tion earlier about the Operation Relex and its costings. What I can tell you is that we have esti- mated it will cost an additional $19 million this financial year. The full cost will not be known, obviously, until the end of the financial year. These figures are in the portfolio budget statement. Senator BARTLETT-On the final page of your statement you talk about your visits to the people on board the Adelaide and you state that they were concerned about the way in which their efforts with SIEV4 had been portrayed in the media. Could you elaborate a bit further on the nature or extent of those concerns? I put it all in one question to save time, but you go on to talk about Able Seaman Whittle, who I think was the woman in the photo, if that is correct. Vice Adm. Shackleton-She was the sailor in the-yes. Senator BARTLETT-I remember reading, on the front page of some newspaper, about her annoyance. My recollection is that her annoyance was more at the government than at the Navy, but I may be remembering it incorrectly. Could you outline in a bit more detail the nature of those concerns that people had? Vice Adm. Shackleton-They felt that they were doing a good job-which they were-and I think they were somewhat taken aback by the rather high-profile media position that the ship CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 115 had assumed over this particular incident. From their perspective, they were doing their job-no more, no less-and they wondered whether the Navy was coming in for any kind of criticism because of any lack of their performance. My advice to them was that that was not the case and that Adelaide's reputation as a ship was in as good a shape as it had been. I spoke to Able Seaman Whittle about these matters. She has no complaint with the way that the Navy has been doing business in relation to her and, indeed, frankly was somewhat embarrassed to find the stories in the paper. CHAIR-Able Seaman Whittle distinguished herself on the occasion. Is she being recommended for any award? Vice Adm. Shackleton-I would have to wait and see what the commanding officer of the ship wants to do. We treat those things on a case-by-case basis and we treat them with quite a high degree of confidentiality because, as you can imagine, quite a number of people get put up for awards that do not actually come about for one reason or another. So we do not want individuals to be disappointed. Senator BARTLETT-Could you outline a bit more broadly the nature of Operation Relex, just to clarify it for me? It basically started from the time of the Tampa, when the Navy was engaged in this new type of operation? Vice Adm. Shackleton-It emerged out of the government policy which itself emerged as a consequence of Tampa, and it has been continuing since. Senator BARTLETT-I do not have an expertise in these sorts of specifics in the Defence area at all, but, when you establish an operation, do you develop a brief with guidelines and command structures and relationships to various bodies like the people-smuggling task force and that sort of thing? Vice Adm. Shackleton-All of that. Senator BARTLETT-And that is all put together in a single- Vice Adm. Shackleton-It is done at several levels. There is the Canberra strategic level, where the government's objectives and policy issues are factored into what degree of freedom the Defence Force has and how it might relate also to Customs and other people. At the operational level, where Rear Admiral Ritchie is responsible, he would plan the operation in considerably more detail than we would here in Canberra. Then the Maritime Commander, being the lead component commander, would plan out his part of this and issue instructions in relation to everything from which ships are to be on station and when to providing directions in terms of where to patrol-which might be based on some intelligence or not-and the day-to- day management of the issues as they emerge. Senator BARTLETT-Are there any particularly unique features of Operation Relex compared with other interception incidents, like the example you have given of the illegal fishing, for instance? CERTAIN MARITIME INCIDENT CMI 116 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-The high degree of close contact with other people is what typifies this particular operation, but the Navy has not been in that business for quite some time. Senator BARTLETT-This is the final area that I want to touch on briefly. Again, this is in another submission we have got that we have not published yet, but it talks about a media report from last year, so it probably does not matter. It refers to a media report purporting to quote sailors who were on the Manoora, detailing a range of alleged incidents-fairly strong allegations of misbehaviour on the part of various boat people on board. It talked about a total of 36 hours of video footage showing riots, fights and ship damage taken by maritime command for review and evidence. Are you aware of that footage and whether there has been an investigation into that within the Navy? Vice Adm. Shackleton-What kind of investigation do you mean, Senator? Senator BARTLETT-According to this: The Daily Telegraph on 15 October last year reported that the Navy would investigate claims sailors on board the Manoora were assaulted by asylum seekers and, according to Mr Reith's spokesperson, the Navy would report to the minister when an inquiry was completed. Are you aware of an inquiry? Vice Adm. Shackleton-I do not remember the specifics of that. We certainly were keeping records, obviously, as the event unfolded and would have provided advice to the minister, although I cannot remember the specifics of what we said. There was some minor damage to the ship and it was quite difficult in terms of dealing with the people, which you would have seen on the media in the same way that a lot of other people did. Other than that, the ship was doing its job and did it well. Senator BARTLETT-The term `inquiry' was used by the minister's spokesperson but, whether it is an inquiry or just a report, was that done and provided to the minister's office? If it has, could we get the details of when that was provided and what sort of form it took? Vice Adm. Shackleton-It may well have been a verbal report that said that there was nothing else to report, but we can check to see what the minister's office did ask of us and what we provided. You had a question earlier about boarding party training, which is the training that we had introduce having now become involved in this kind of operation. Without trying to make it too technical, this kind of training was in the sort of training we provided to ships where we tried to work them up to the maximum level of operational capability. There are degrees to which we will work ships up, depending on the nature of the circumstances that they will find themselves in, but I think the person who is better able to describe this to you and give you the detail you want is Admiral Smith, who is the Maritime Commander. Senator BARTLETT-Thank you, I will do that. Touching on this a little bit further, if statements by Navy personnel-sailors et cetera-were felt to have violated to the prohibition CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 117 contained in the administrative instructions about publicity et cetera, who would follow that up? Would that be something that you would ask to be followed up or is that done through- Vice Adm. Shackleton-If there were sufficient evidence to identify who it was who had transgressed that particular Defence instruction, then I would probably instruct somebody to ask the individual the reasons why they did it. Or, another commander, such as the Maritime Commander, may take that initiative on his own. Senator BARTLETT-You may need to take this on notice. The submission I was quoting from before talks about an article on 13 October last year on the front page of the Daily Telegraph about what was supposedly happening on the Manoora. It purports to quote sailors detailing suggestions that boat people had deliberately broken the arm of one of the girls on board, that there was covert surveillance of someone believed to be an agent with connections to Osama bin Laden and that a woman had tried to throw her daughter over the side of a landing craft. It then talked about the 36 hours of video footage of riots and fights and ship damage. Firstly, that sort of thing would, I think, contravene these instructions. Do you know or could you find out if there was any attempt to follow up that sort of release of information to the media? Vice Adm. Shackleton-It depends on how the media got that information-whether it was just simply buying a sailor a beer down at the pub in Sydney or whether it was a deliberate statement, with forethought, provided by somebody else. My understanding of that particular incident was that it was journalists buying sailors a few beers to ask them what they did. Senator BARTLETT-Do you follow up those sorts of examples? Vice Adm. Shackleton-No, I would not. Senator BARTLETT-Is that because you do not think it is important? Vice Adm. Shackleton-If I followed up every media story about the Navy, I would never do anything else. Senator BARTLETT-I know the feeling. Leaving aside the breach of guidelines, in terms of that particular story, are you the best person to ask about whether those allegations about those various events can be confirmed? Vice Adm. Shackleton-I think you should ask Admiral Smith to describe those circumstances. I am sure he can give you a full description of them. Senator BARTLETT-My final question goes to COMAST-that is Commander Australian Theatre, isn't it? Vice Adm. Shackleton-That is Admiral Ritchie. Senator BARTLETT-So, to some extent, I could ask him. But, given your role as Chief of Navy, I think it is relevant. It is about a brief in relation to requests from the Prime Minister CERTAIN MARITIME INCIDENT CMI 118 SENATE-Select Monday, 25 March 2002 about the feasibility of the Adelaide taking a bunch of boat people-the SIEV4 people specifically-from Christmas Island to Cocos Islands. It details some concerns regarding transportation, not least of which are that you would exceed the life raft capacity of the vessel and a lot of hygiene problems. Obviously, that transportation did not go ahead but, nonetheless, the Adelaide had to take on board all of these people. Those sorts of elements are obviously a potential issue with any vessel that is intercepted. How does the Navy deal with that problem-that with potentially every vessel they intercept they may end up having to exceed their life raft capacity? I understand that was one of the problems with the Manoora-it was not really set up for having a lot of people who were not personnel on board for a long period of time in terms of showers, toilets and the like. Vice Adm. Shackleton-Typically, in terms of our lifesaving equipment, we carry about 110 per cent of what we think we might use, so there is some redundancy in that. In these cases, we would make a calculated risk as to what the size of the group of people was, how far we had to go, what the weather conditions were going to be like, what the material state of the ship was, and then make a decision after we had considered all of that. Senator BARTLETT-But the fact is that, with potentially every vessel that is out there, every Navy ship that intercepts the vessel may be put in these sorts of circumstances. Vice Adm. Shackleton-I would have to check, Senator, but it may well be that we are now carrying more life rafts than we had in the past. Senator BARTLETT-If you could, that would be handy. That will do me. Senator JACINTA COLLINS-Vice Admiral Shackleton, firstly I would like to go back to some of the issues you covered with Senator Cook. Please correct me if my understanding is not accurate, but Senator Cook asked you whether this operation had involved changes in operational imperatives, and you indicated no. Is that the case? Vice Adm. Shackleton-Sorry, I was distracted, Senator. Could you run the question past me again? Senator JACINTA COLLINS-Senator Cook asked whether there had been changes in the operational imperatives in this operation and you indicated, no, that was not the case. Vice Adm. Shackleton-When you say `operational imperatives'-I thought you were asking me whether we had made changes to the way in which we did business. CHAIR-I think I asked firstly about the rules of engagement and you indicated that you were not the appropriate person. Then I think I asked you if you would be in a position to comment on an element of the rules of engagement, and you said maybe. Then I think I put, in colloquial form, the question that- Vice Adm. Shackleton-That is right-about people over the side and the like. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 119 CHAIR-Was it in the rules of engagement that the Navy would wait for a vessel to sink before it would collect people from the ocean, or would it collect them- Senator JACINTA COLLINS-And you indicated no. CHAIR-if they were in imminent danger of sinking? Vice Adm. Shackleton-I put the answer in the context of no in that when people are confronting a life-threatening set of circumstances and if the ship were clearly foundering, as did SIEV4 before it finally sank, then we would take people off the ship as it happened. Senator JACINTA COLLINS-I would like to take you to Commander Banks's statement. He indicates that the decision to retain SUNCs in the SIEV for as long as possible was a deliberate strategy. Until a genuine safety of life at sea situation existed, SUNCs were not to be embarked in the Adelaide. Vice Adm. Shackleton-That is right. Senator JACINTA COLLINS-How longstanding is that deliberate strategy? Vice Adm. Shackleton-I cannot give you the exact detail on that, but Air Vice Marshal Titheridge, Rear Admiral Ritchie or Rear Admiral Smith could. It probably came about right at the beginning of this operation. Senator JACINTA COLLINS-Earlier today-and I will come to this a bit later as well- we were talking about an escalation in the behaviour of SUNCs. Has there also been an escalation in the behaviour of the Australian Navy? Vice Adm. Shackleton-No. In order to meet the objectives, the intention was always, as far as is possible, to prevent the vessels sinking so that they could then be seaworthy enough to take them back to Indonesia. Senator JACINTA COLLINS-Yes, but, as Commander Banks describes, there was a deliberate strategy to retain SUNCs in the SIEV for as long as possible. How longstanding was that strategy? Vice Adm. Shackleton-Like I said, it probably came about as soon as we started doing this, and it would have been one of the rules of engagement, I imagine. Senator JACINTA COLLINS-Of this mission? Vice Adm. Shackleton-Yes. I cannot give you the exact answer to the question that you asked, but one of the other witnesses can. Senator JACINTA COLLINS-I also want to take you to another issue related to this, because I think it draws out the problem between the Navy's role in implementing the government's policy and the Navy's role in dealing with situations of safety of life at sea. In CERTAIN MARITIME INCIDENT CMI 120 SENATE-Select Monday, 25 March 2002 Brigadier Silverstone's statement, in discussion about the photos in their proper context, namely in involving sailors at sea in the rescue of SUNCs-I wish I could avoid using that word, but we would be here forever and a day if I elaborated each time-Brigadier Silverstone indicates a concern that `some might say that through the ADF's intervention we have placed the SIEV and its occupants in danger'. Can you think of what Brigadier Silverstone might be referring to when he says that some might be concerned that the SIEV was put in danger by the actions of the ADF? Vice Adm. Shackleton-I could only think he may be thinking about the public perception. It has never been our intent to put anybody in danger. We will obviously let the circumstances evolve as far as we think is prudent and safe, but, in the end, the majority of these vessels have been burnt or sunk or destroyed by their occupants. Senator JACINTA COLLINS-In fact, Admiral Barrie himself reinforces this point in his statement. He indicates: In the discussion with Mr Moore-Wilton who had wanted all the persons in the water to be placed in the HMAS ADELAIDE I made the point emphatically that we could not guarantee that all these people would end up in the ADELAIDE, rather, I insisted, our first priority was to use all available assets including support from Christmas Island to save lives by rescuing people from the sea. This very high level discussion between Mr Moore-Wilton and Admiral Barrie, I think, highlights that tension, but are you aware of that tension at a number of other levels within the Navy? Vice Adm. Shackleton-No, but there will obviously be a tension, because the commander at sea-the captain of the ship-is trying to follow through on his mission, which means keeping the SIEV afloat and serviceable for as long as he can, which might mean preventing people setting fire to it, damaging it, or in some other way disabling it, but he knows, ultimately, he may have to pick those people out of the water. Senator JACINTA COLLINS-You say `pick them out of the water', why not out of the sinking SIEV? Vice Adm. Shackleton-That may well be the same thing. Senator JACINTA COLLINS-This is one of the issues that I think is going to be an ongoing concern for this committee, because it does not seem as though it is one and the same thing. We have some submissions indicating that Navy has instructions to wait until people are in the water; we have Commander Banks's statement that it was a deliberate strategy to keep people on the SIEV for long as possible; and we also have-and this is a further piece of evidence relevant here-a report, which I think is the log of the boarding party on the Adelaide, which seems to corroborate the view put by asylum seekers that the Prime Minister's imprimatur was necessary before certain actions could be taken. In this boarding party log, for instance, at the time in which the SIEV was to be taken on tow-it is hard to trace the dates on these documents-we have an indication that the CO advised `approval from PM of Australia to tow vessel to place to be determined'. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 121 Vice Adm. Shackleton-I do not know that we have been operating under the personal direction of the Prime Minister. The CDF is the guy that gives the orders. He may have been receiving instructions from elsewhere, but- Senator JACINTA COLLINS-I think that that earlier comment I referred to about the discussion with Mr Moore-Wilton and Admiral Barrie reinforces that point. Vice Adm. Shackleton-Frankly, I do not think anybody in the boarding party was in any position to know who was giving any orders. They work for the captain of the ship, not the Prime Minister per se. Senator JACINTA COLLINS-Precisely, but this is an indication that right down at the level of your seamen, there is this impression that the Prime Minister is pulling these levers. Vice Adm. Shackleton-That may well be their impression, but they have plenty of impressions about who is pulling all kinds of levers. So I really cannot counter what you say. Senator JACINTA COLLINS-Let us trace it back the other way, then. We have the boarding party which, from this evidence here, indicates that the commanding officer has ad- vised approval from the PM of Australia to tow the vessel. We go to the commanding officer. The commanding officer indicates that it is a deliberate strategy to keep people on the SIEV for as long as possible. Vice Adm. Shackleton-It was. Senator JACINTA COLLINS-Then you go right up to Admiral Barrie, who indicates he had what looked like reasonably terse discussions with Mr Max Moore-Wilton- Senator BRANDIS-Oh, come on Senator Collins! Senator JACINTA COLLINS-I will read the exact words again for you. Senator BRANDIS-`Reasonably terse discussions'-Senator Collins, honestly and truly, don't you think it is about time to stop improving the evidence? Senator JACINTA COLLINS-Let us go back to the words: In the discussion with Mr Moore-Wilton who had wanted all the personnel in the water to be placed in HMAS ADELAIDE. I made the point emphatically that we could not guarantee that all these people would end up in the ADELAIDE, rather, I insisted, our first priority was to use all available assets including support from Christmas Island to save lives by rescuing people from the sea. If you want me to do the longhand version right through the next several weeks, I am happy to, Senator. CHAIR-You do not need to reply, Senator. Senator BRANDIS-I am not proposing to. CERTAIN MARITIME INCIDENT CMI 122 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-All of this information seems to indicate that, to my mind, there is a significant tension between those two imperatives: implementing government policy versus safety of life at sea situations. Vice Adm. Shackleton-No, Senator, it would be quite clear to the individual on the scene, in that he will interpret the circumstances as he sees them but he ultimately knows, when it comes down to a lifesaving set of circumstances, that that is what he will do. Senator JACINTA COLLINS-Let us go to that point, then, because I wanted to follow up on that point after we had addressed what I would refer to as the Titheridge report-the report that Senator Brandis went through in quite some detail with you. You mentioned in that discussion that you were aware of a report that was organised a bit differently or something-I cannot recall your exact words. Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-What did you mean, then? Vice Adm. Shackleton-The information that was in the Titheridge report was also contained in a report that had been generated and prepared by the Maritime Commander. It had been slightly restructured, I think, in the Titheridge report to have a chronological sequence to it, rather than the structure of the maritime command report, which was more event by event. Senator JACINTA COLLINS-What is the difference, in your mind, between `chronological' and `event by event'? Vice Adm. Shackleton-In this document here we are looking at incidents for each ship. For instance, if you go to enclosure 2 of HMAS Arunta, it is broken down into incidents: Incident One, Two, Three, Four and Five. I would have to check, but I think the one that came from the maritime command was instead structured in terms of SIEV1, 2, 3, 4 and 5. Senator JACINTA COLLINS-Could you provide us with a copy of the report from maritime command that you are referring to? Vice Adm. Shackleton-I think I can, yes. Senator JACINTA COLLINS-Did that report deal solely with child incidents or did it deal with other matters as well? Vice Adm. Shackleton-We asked the Maritime Commander to report on any incident where a child was actually being dropped or thrown and any incident where a child had been threatened to be thrown or dropped. Senator JACINTA COLLINS-So it also does not go to the broader behaviour of asylum seekers that we were discussing earlier-threats to selfharm, other issues? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 123 Vice Adm. Shackleton-This is children only, but I am sure that when you talk to the Maritime Commander he can give you all the details of each event. Senator JACINTA COLLINS-Yes, I know. I appreciate that. For instance, the logs of SIEV4 give you fairly good detail once you see all of the incidents together, not just these child only incidents. It gives you a much better feel for what was happening at the time. Admiral, further to the discussion on the Titheridge report, on how many occasions are you aware of a child or children being put over the side? Vice Adm. Shackleton-Do you mean dangled? Dropped? Senator JACINTA COLLINS-Into the water. Vice Adm. Shackleton-You are going to have to be more specific, Senator-whether they jumped, whether they jumped into the water when somebody else was holding them or whether they ended up in the water because the boat sank? Senator JACINTA COLLINS-That is an interesting point also, but let us deal with it from the asylum seeker end at the moment. On how many occasions did a child end up in the water through actions of either itself, other asylum seekers or crew of a SIEV? Vice Adm. Shackleton-Senator, I will have to get somebody to go through the report and do some calculations for you. Senator JACINTA COLLINS-From the Titheridge report it is fairly obvious to me on reading it for just half an hour that it was one. Senator BRANDIS-Point of order, Mr Chairman: that puts a completely misleading proposition to the witness. Senator JACINTA COLLINS-Senator Brandis, you have put enough misleading propositions to the witness and you have had ample time to do it. Senator BRANDIS-Let me state my point of order. Senator JACINTA COLLINS-No. I didn't interrupt you. CHAIR-The meeting will come to order. Senator BRANDIS-Let me state my point of order please, Mr Chairman. CHAIR-Senator Brandis, you have a point of order. Senator BRANDIS-Senator Collins directed a question to the witness in what I took to be deliberately vague words. She asked, `On how many occasions does the Titheridge report indicate a child ended up in the water?' Admiral Shackleton, perfectly properly, said that he would have to go through it and consider it. And then Senator Collins asserted, quite forcefully, CERTAIN MARITIME INCIDENT CMI 124 SENATE-Select Monday, 25 March 2002 that it indicated one. The Titheridge report, as it is now being called-it is in fact a briefing minute-indicates but one instance where a child, to use Senator Collins's words, `ended up in the water'. CHAIR-Can I ask you what your point of order is? Senator BRANDIS-The point of order is that the assertion that has just been made to the witness for his comment in an interrogative way is simply false-plainly false. CHAIR-If I have to worry about which questions are false then it opens up an entire Pandora's box. We have rocked along this afternoon and we are getting towards the end of a long and tedious session. I blame no-one for that; it is the nature of these proceedings, I imagine. No doubt everyone is getting a bit edgy, but we are coming to the end-we have an hour and a bit to go before we break for dinner. In these proceedings I have tried to give everybody a fairly loose rein so that there is no inhibition on people asking questions. I have been tolerant about that. I would rather be like that than at the end of the proceedings have someone believe that they had a burning question which I as the chairman did not enable them to ask. I will allow the question and we will proceed. Vice Adm. Shackleton-I have some other information, if I could interrupt your flow. There was a question earlier on life rafts and capacities. I am advised that we have 150 per cent of life- saving capability on board, and at no time have we exceeded the lifesaving capacity of any of the vessels on which we have had survivors. In relation to the draft press release, which I think Senator Collins or Senator Faulkner asked about, there was no draft per se; it was done on a computer screen. It was changed from a draft to a final and it came out the way it did. It was done in conference with people sitting around a computer and talking to me on the telephone. Senator FAULKNER-Do we know who was in the conference? Vice Adm. Shackleton-In the conference I think there were Mr Murray Domney, David Spouse, Brian Humphreys, Jenny McKenry and Captain Wright. Senator FAULKNER-And are the non-defence personnel all officers of the Department of Defence? Vice Adm. Shackleton-Certainly the names that I recognise there are all Defence officers, yes. Senator JACINTA COLLINS-I should have originally put fully on the record the statement made by Ms McKenry so you may need to reconsider the advice you have been given there in the context of what I will read to you now, because it still does not seem consistent with Ms McKenry's evidence, which is the concern. I will try to read all of the appropriate section here. Vice Adm. Shackleton-Sorry, what page is that, Senator? Senator JACINTA COLLINS-Do you have Ms McKenry's statement to the Powell report? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 125 Vice Adm. Shackleton-No. Senator JACINTA COLLINS-It says: Alan Hawke advised me that the government was advised that children were thrown overboard. Peter Hendy contacted me and said he believed there needed to be a clarifying statement by CN and that he would leave that to us. He asked that a copy of the statement be sent to Arthur Sinodinos in the PM's office. In the interim CAPT Mal Wright brought a statement that had been prepared in Navy Headquarters down to my office. Vice Adm. Shackleton-I guess we will have to bounce that against the latest advice and get back to you with some third advice. Senator JACINTA COLLINS-Let me read you the full bit of this relevant section so that we do not need to do this again: It did not accurately address advice to the Minister re children being thrown overboard. With Mal Wright, Brian Humphreys and David Spouse in a room I contacted CN on his mobile and walked him through a short statement that addressed the issue of previous advice to the Minister. So it sounds like your advice there pertains to the second component of the situation being referred to by Ms McKenry, but not the first. Vice Adm. Shackleton-Yes. I guess in that case I never saw the draft. As I say, I do not know if there is one that exists. I think I am reading from the same paper that you are reading from. Senator JACINTA COLLINS-But did you talk to Captain Wright? Vice Adm. Shackleton-Captain Wright was certainly part of the conversation I had with Ms McKenry, because it was- Senator JACINTA COLLINS-But previously to that? Vice Adm. Shackleton-I may well have done. Senator JACINTA COLLINS-So there may well have been an initial draft arising from a discussion between yourself and Captain Wright, which he then took to Ms McKenry's office? Vice Adm. Shackleton-I could ask. Senator JACINTA COLLINS-Was there additional information- Vice Adm. Shackleton-No. Senator JACINTA COLLINS-or are we back to where we were? Perhaps it will make it easier if I rephrase the question. In enclosure 6 there is reference to an incident where a woman dropped a child into the water. Aside from this incident and aside from children ending up in the water once their boat had sunk, are there any other incidents that you are aware of where the child ended up in the water? CERTAIN MARITIME INCIDENT CMI 126 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-My initial answer is I am not sure, but I would like to check. I am not trying to be difficult but I come back to the point about how they actually got into the water in the first place. Senator JACINTA COLLINS-Yes. Well, we went through this document in a fairly detailed way earlier. Senator BRANDIS-SIEV10- Senator JACINTA COLLINS-That was after their ship had sunk. Senator BRANDIS-Thirty-three from SIEV10 ended up in the water after they sank the ship. Senator JACINTA COLLINS-You have had your turn, Senator Brandis, for goodness sake! CHAIR-Order! Senator Collins has the call. Proceed, Senator Collins. Senator JACINTA COLLINS-So, Admiral, from having gone through this document in a fair amount of detail earlier today, is there another such incident that I have overlooked? Vice Adm. Shackleton-Probably not, given that these reports are all pertaining to incidents where these sorts of incidents were specifically asked for-in terms of `Tell us about incidents where children were involved?' and this is the result of that work. Senator JACINTA COLLINS-We go on to the next issue, which is children in the water as a result of their ship sinking. There is some suggestion in relation to the case of SIEV4 from Commander Banks's statement that it is not clear that it was actually sabotage that led to that boat sinking. But it is also obvious from the photography involved that those people, including children, were allowed to get to the stage where they ended up in the water before they were saved. Can you respond to the statement by the asylum seekers which is that they are being made to enter the water before the safety of life at sea situation is being addressed by the Navy? Vice Adm. Shackleton-That does not sound right to me. If there is a safety of life at sea situation, I would expect the commanding officer to deal with whatever he has to deal with. It is his judgment in the end. It is his judgment as to whether a safety of life at sea situation exists or does not. Sometimes that will get you right down to a boat looking pretty shaky, and it may not sink. Some of these things float with a very low freeboard. It is very much his call. Senator JACINTA COLLINS-Can it get down to the situation of people's lives still not being at risk if they are in the water and there is a big ship next to them from which people are able to jump in and save them? Vice Adm. Shackleton-If they are in the water and their boat is still floating, we will pick them up and put them back on their boat. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 127 Senator JACINTA COLLINS-What if their boat is three-fifths submerged? Vice Adm. Shackleton-If it is still floating and it is not sinking, we will put them back on their boat. Senator JACINTA COLLINS-So how do you define when a ship is sinking? Vice Adm. Shackleton-When it is going under the water. Senator JACINTA COLLINS-To what level? Vice Adm. Shackleton-It depends entirely upon the circumstances. If there is a swell-if there are waves-and the boat has low freeboard and it is taking water over the side and you can see that it is progressively getting lower in the water, you have a boat that is sinking on you. Senator JACINTA COLLINS-Was the boat sinking in the SIEV10 incident, when the children were taken with adults into the water? Vice Adm. Shackleton-What enclosure number are we looking at, please? Senator JACINTA COLLINS-Because the order of this is not quite clear, I am going to have to struggle to find that too. But Senator Brandis kindly told me it was SIEV10. Senator BRANDIS-It is in enclosure 5. Senator JACINTA COLLINS-It is in 5. Vice Adm. Shackleton-It says here that the people abandoned ship en masse. I would have to go and ask who was there at the time, or whether the Maritime Commander had more evidence as to what the state of the boat was at the time. It says here `as a result of the torching and subsequent sinking', which says to me that they sabotaged it. Senator JACINTA COLLINS-It says that 33 children under the age of 12 were recovered from the water, but what it is not clear about is when these children actually entered the water- at what stage. Vice Adm. Shackleton-They may well have jumped off the boat to get away from the fire that they had started. Senator JACINTA COLLINS-Yes. Alternatively, for instance, in the case of SIEV4, they may well have been taken into the water to get away from a boat that was about to sink. You would not want to drag them under the water, which is why one of the crew from the Adelaide jumped into the water, as I recall. Vice Adm. Shackleton-But you have the same set of circumstances: the boat is sinking. Senator JACINTA COLLINS-Pardon? CERTAIN MARITIME INCIDENT CMI 128 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-The boat was uninhabitable; they had started a fire. Senator JACINTA COLLINS-Yes, but if you are a parent with a child, you do not want that child to drown and you are on a ship that is sinking then would you not try to take that child away from where it is possibly going to be drawn down with the ship? Vice Adm. Shackleton-Of course. Senator JACINTA COLLINS-Of course. So you would take that child into the water at a relatively early stage to ensure that the child would not be drawn down with the ship? Vice Adm. Shackleton-I think that, in the case of these particular sized vessels, the chance of that happening would have been low. But you as a parent would also be making a decision as to when you jumped into the water. Senator JACINTA COLLINS-That is right; that, too. Vice Adm. Shackleton-And that is the decision of the individual. Senator JACINTA COLLINS-As I understand it, one of the crew of the Adelaide actually jumped into the water because they were fearful of that occurrence. Vice Adm. Shackleton-As I understand it, they jumped into the water to rescue people who were already in the water. Senator JACINTA COLLINS-Yes, but too close to the ship that was becoming submerged. Vice Adm. Shackleton-I do not have that detail with me. Senator JACINTA COLLINS-Okay. Do you know on how many occasions children have ended up in the water as a result of this government strategy? Senator BRANDIS-For goodness' sake, why do you use a deliberately vague expression such as `ended up in the water', when it is perfectly clear to you, Senator Collins, from your own questions that there are a variety of causal factors here and a variety of methods by which this has happened? Senator JACINTA COLLINS-There was only one occasion when a child was put in the water by an asylum seeker-one occasion. On the rest of the occasions children ended up in the water when their ship was sinking- Senator MASON-When they sank their own boats, Senator Collins. CHAIR-Order! Senator Collins has the call. I do not have a point of order in front of me. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 129 Senator JACINTA COLLINS-And we have the evidence from Commander Banks that the decision to retain SUNCs in a SIEV for as long as possible was a deliberate strategy, and it was a deliberate government strategy. Senator FERGUSON-Mr Chairman, on a point of order: it is not in order for the senator to ask the vice admiral to comment on government policy. One of the stipulations you made at the start of this hearing was that witnesses are not to be asked questions on government policy. Senator JACINTA COLLINS-It is not a question on government policy, Senator. Senator FERGUSON-It is. Senator JACINTA COLLINS-No, it is not. CHAIR-It is true, Vice Admiral, that you are not to answer questions on government policy, but you may be asked questions about what led to the government policy. I read out the process at the beginning. Senator FERGUSON-I think it is a question on government policy, Mr Chairman, with due respect, from the way it was framed. CHAIR-I note the point of order; I think you can proceed, Senator Collins. Senator JACINTA COLLINS-Vice Admiral Shackleton, we have covered the point of the tension between Navy's role in implementing government policy and Navy's role in dealing with safety of life at sea issues. Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-To get over Senator Ferguson's point, let me ask this question in another way: as a result of a deliberate strategy to leave asylum seekers on these SIEVs for as long as possible, on how many occasions did that result in children ending up in the water? Vice Adm. Shackleton-From my notes, there are three SIEVs which sank as a result of the actions by the people on those boats sabotaging them to the point where they burnt and sank. Senator JACINTA COLLINS-Which were they, Vice Admiral? Vice Adm. Shackleton-I think they were SIEVs 4, 7 and 10. Senator JACINTA COLLINS-SIEV4 is questionable, though, isn't it? Vice Adm. Shackleton-No, not from our perspective. Senator BRANDIS-Hardly! CERTAIN MARITIME INCIDENT CMI 130 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-It is from some of the evidence in the statements. You should read some of it. Vice Adm. Shackleton-My understanding is that, in the case of SIEV7, a child was dangled and either dropped or thrown-and that is debatable. Senator JACINTA COLLINS-Yes. Vice Adm. Shackleton-There is SIEV10, which burned and sank. I think somebody said that 33 children under the age of 12 were recovered from the water by Wollongong and the Customs vessel. Senator JACINTA COLLINS-So there were 33 on SIEV10; there were I cannot recall how many on SIEV4, but I think quite a number of children ended up in the water on that occasion; and was it only the one from the SIEV7 incident or did children end up in the water later? Vice Adm. Shackleton-I will have to go through and look at the numbers again. Senator JACINTA COLLINS-Vice Admiral, are you aware of any other incidents where the safety of asylum seekers became an issue in the Navy's dealing with SIEV incidents? Vice Adm. Shackleton-The safety of these people is always an issue for the Navy. Senator JACINTA COLLINS-We have the child incidents; are you aware of other incidents where there has been, for want of a better word, a negative result from Navy's handling of these cases in terms of the safety of the asylum seekers? Vice Adm. Shackleton-Frankly, I do not know what you mean by the question, because at no time have these people been threatened, in a safety sense, by Navy's actions. But your question seems to be saying that they have. Senator JACINTA COLLINS-No, I am not saying that at all. Vice Adm. Shackleton-Could you please give me the question again. Senator JACINTA COLLINS-Have there been any injuries or deaths from these SIEV incidents? Vice Adm. Shackleton-There were two deaths; I am not sure about injuries. Senator JACINTA COLLINS-So there have been two deaths. What incident did that relate to? Vice Adm. Shackleton-SIEV10, which burnt and sank. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 131 Senator JACINTA COLLINS-In the SIEV10 incident, do we know for how long that ship was sinking? Vice Adm. Shackleton-Senator, I do not have the figures and facts in front of me, but the Maritime Commander, who is sitting behind me, does. Is it appropriate to bring him to the table at this stage? Senator JACINTA COLLINS-He is a witness a bit later. Are you suggesting that I go through the detail of this with him? Vice Adm. Shackleton-I am. I can get some written notes from him, if it satisfies your immediate needs. Senator JACINTA COLLINS-I am happy to wait until I talk to him, because I want to be able to go into some very clear detail. You alluded to something a moment ago, and I want to be very clear that there is no misunderstanding on that point. I am in no way suggesting that the behaviour of the Navy has been anything other than admirable in dealing with these situations. What I may be suggesting is that a policy which involves keeping these people on sinking ships for as long as possible may have a detrimental impact on the safety of the asylum seekers, and that is what I intend to explore when I go to the SIEV10 incident. Senator BRANDIS-What is the Navy supposed to do if they sink their own ships? CHAIR-Order! You are out of order; come on, let's get going. Vice Adm. Shackleton-Perhaps I could answer it in this way; a message was sent in September last year which said: In the event of UBAs jumping from an otherwise seaworthy SIEV, the UBAs are to be rescued and returned directly to the SIEV. In the event of a SIEV sinking, either by design or by accident, survivors are to be rescued and treated as survivors at sea. That is the policy. Senator JACINTA COLLINS-But in the light of, as I have gone through with you, some of the indications of the pressures or the tension there, during this inquiry we need to question what the definition is, for instance, of when a ship is sinking and to what extent commanders such as Commander Banks believe that they must keep people on a ship. Vice Adm. Shackleton-That is his judgment. He is the man on the spot; he is the person that will decide when it has reached the point from which it moves from one to another. Senator JACINTA COLLINS-Yes, and until we can get to the detail of the SIEV10 incident, some of that is going to be a bit difficult. There is only one other area that I wanted to move on to in relation to your comments. In your statement today, you repeated what you have said in earlier statements, and I take you to 1.4.14, where you say: CERTAIN MARITIME INCIDENT CMI 132 SENATE-Select Monday, 25 March 2002 Banks told me that he reported the incident to COMNORCOM ... via radiotelephone on the 7th when Silverstone called him from his HQ in Darwin. You do not go into what the nature of that advice was at that point, but at 1.4.17 you say: Subsequent analysis of the activities undertaken by the crew of Adelaide changed the original assessment by Banks. In my mind, there is still a question about what that original assessment was. Is that not the case in your mind? Vice Adm. Shackleton-I guess there is a question of what Banks said. I guess I deconstructed it as follows: Banks was under a great deal of stress-and by that I do not mean that he was unable to deal with it, but he had a lot on his mind and he was pretty busy. Silverstone was sitting in an office where it was a lot easier to write down and take notes of a conversation. Silverstone had no reason whatsoever to phone somebody else and say that there had been children thrown in the water unless he had good reason to do so. So there is a correlation between what he heard and what he did in that context. Banks would have wanted to get off the telephone as quickly as he could and get back to doing what he had to do in terms of his ship. A few days after that, he went through the incident in slow time and took witness statements and, I guess, looked at the videotape himself and came to the conclusion-in fact, as I now know it, he can't remember saying to Silverstone that there were children in the water and was not aware of the concern that it had caused until some days later. In my discussion with him, he was a bit ambivalent as to whether he could have told Silverstone one thing or the other. Senator JACINTA COLLINS-Sorry, when was that conversation? Vice Adm. Shackleton-He was ambivalent in that he would have told Silverstone that- Senator JACINTA COLLINS-Sorry, when was that conversation that you are referring to at the moment? Vice Adm. Shackleton-That was the one that I had with him on 8 November. So I looked at this in terms of the balance of probabilities of the circumstances in which each of those individuals found themselves and I would still say that there is a very high probability that Silverstone's recount of the conversation is more accurate than that of Banks, but it might not be. Senator JACINTA COLLINS-But it might not be? Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-And after that discussion with Banks on 8 November, you then said to the media, `Our'-and I presume you mean the Navy- Vice Adm. Shackleton-Yes. Senator JACINTA COLLINS-`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.' CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 133 Vice Adm. Shackleton-That's right. Senator JACINTA COLLINS-Thank you. That concludes my questions. CHAIR-I have a few questions to tidy up some things that are still alive in my mind as a consequence of what has been a long session. Somewhere during this hearing-and it may be that unfortunately you have drawn the short straw-we probably need some clarifying advice from an authority on the guidelines about safety of life at sea. What is required of the Navy or any skipper of a vessel in the event that life at sea is at risk? My understanding is that this is en- coded-it is in legislation based on the law of the sea to which we are a signatory-and it is easily discoverable. Are you the right person to ask to provide this information to the commit- tee? Vice Adm. Shackleton-I am certainly one of the people you can ask. Whenever there is a disaster or a circumstance declared whereby a ship declares itself in distress and requires assistance, there is a process of search and rescue arrangements in Australia, and the Navy will participate in that. If we are in sight of a vessel which is in distress then we are bound to provide assistance. In this case, these vessels were declaring themselves to be in distress, but when we took close inspection it was found from a seaman and a mariner perspective that that was not to be the case. So we found ourselves dealing with people who were declaring themselves in distress when it was our professional judgment that the ships were capable of floating and moving, and that the distress call was not in fact a distress call. As I say, that required the professional judgment of each commanding officer to say whether he would treat it as a distress set of circumstances or not. I think, in the end, as you have heard me say, where people were jumping or climbing-however they were getting into the water-from a vessel that we regarded as serviceable and sound, which could float and move, we would put those people back in that boat. Where the boat was incapable of floating and the lives of individuals were clearly at risk, we would rescue them in the normal course of events, which is what we did on every occasion. CHAIR-The point here is that it is for the judgment of the skipper of the vessel coming to the aid of the distressed, or allegedly distressed, vessel to make that assessment. Vice Adm. Shackleton-In this set of circumstances it is unique, in that you normally do not expect somebody to release a distress call unless they are truly in distress. In these circumstances, we were finding that that was not the case. CHAIR-I do not want to put you on the spot but, for example, was it appropriate for the skipper of the Tampa to make a decision about whether the people whose call he answered were in distress and then to collect them? Vice Adm. Shackleton-Yes, it was. CHAIR-According to the law of the sea or the safety of life at sea regulations, whatever they are-maybe there is a document you could give us for background advice of the committee-what is required then of the rescuing vessel? Is there any requirement? Is it that they are supposed to deliver those people to a safe destination? CERTAIN MARITIME INCIDENT CMI 134 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-Yes. CHAIR-Would it be open therefore to the vessel to have delivered them to Indonesia, for example? Vice Adm. Shackleton-Should that be where the government wanted them to go, yes. CHAIR-If it is easy to establish what the rules and regulations are of safety of life at sea, it might be of some use to us. I get a feeling that this might be a subject debated during this inquiry. Vice Adm. Shackleton-I will get from our lawyers the appropriate material. CHAIR-Thank you. For these vessels-the SIEVs-it is my understanding that they are not flagged, they have no national flag. Vice Adm. Shackleton-They arrive without a national flag, yes. CHAIR-So they are not identifiable at sea. You can probably work out by deduction where they are from, but there is no identifying ensign. Vice Adm. Shackleton-Other than, I think, some of them have names painted on them. CHAIR-And registrations? Vice Adm. Shackleton-Not normally. CHAIR-They are not registered vessels? Vice Adm. Shackleton-Not normally, no. As often as not, these are derelict ships or derelict vessels which have come into the possession of the people who have essentially provided them for a one-way trip. CHAIR-Are they crewed? Vice Adm. Shackleton-Yes. CHAIR-And there is a skipper? Vice Adm. Shackleton-It is sometimes hard to define what a skipper is in this context, but there is usually a crew who sometimes stay with the vessel the whole time or sometimes try to get off the vessel. CHAIR-If there are crew and if there is someone in charge, you would normally expect that the skipper would be in charge of the vessel and the crew would be answerable to the skipper. The cargo-in this case, human cargo-might have a view, but it is for the skipper of the vessel to exercise decisions about the safety of the vessel. They are the normal circumstances. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 135 Vice Adm. Shackleton-They would be the normal circumstances. CHAIR-Is this analogous to a normal circumstance? Vice Adm. Shackleton-I think in these circumstances you are dealing with people who have been told to deliver their human cargo to Australia, no matter what. If that includes sinking the vessel then that includes sinking the vessel. CHAIR-As far as the skipper or crew of the vessel are concerned, if they were in an Australian jurisdiction, they would be committing a breach of Australian law as people- smugglers and would be able to be charged in an Australian court, facing heavy penalties. It would be reasonable to assume, in those circumstances, that they would want to hide their identification and mingle with the rest of the passengers. Vice Adm. Shackleton-Yes. CHAIR-When you collect-and I am not referring to any particular incident-passengers from these vessels, are you able to distinguish who are the crew and who are the passengers? Vice Adm. Shackleton-Generally when you have got Iraqi or Afghani people, the Javanese stand out. CHAIR-That is a yes; you can identify them. Vice Adm. Shackleton-Yes, you can. CHAIR-Going to SIEV4, were you able to identify the crew and skipper of that vessel? Vice Adm. Shackleton-Let me check for you, Senator. I think we could, but I will check. CHAIR-It is a relevant question in terms of what the vessel did, how it responded to signals, and who were the responsible people in charge of the vessel. Vice Adm. Shackleton-Yes. CHAIR-I think there is a merging between the passengers and the people in charge of the vessel at this stage. Vice Adm. Shackleton-Yes. CHAIR-While that is being checked, on taking possession of a SIEV-and SIEV4 was taken under tow- Vice Adm. Shackleton-Yes. CERTAIN MARITIME INCIDENT CMI 136 SENATE-Select Monday, 25 March 2002 CHAIR-is any survey, or assessment, done on the seaworthiness or otherwise of a vessel and on what navigational instruments it may have-the state of its engine, or the water facilities and food requirements on the vessel? Vice Adm. Shackleton-The boarding party, when it goes on board, essentially comman- deers the ship-and that, as much as anything else, is to protect the ship from further damage. At that stage of the game, a seaworthiness assessment is made, a mechanical engineering as- sessment is made, a navigational equipment assessment is made and that will be there as infor- mation. Where we take a ship back to Indonesia, we essentially navigate on its behalf, and we leave it within sight of the Indonesian coast. In the case of SIEV4, there would have been re- peated efforts to keep the vessel seaworthy. Eventually it was taken under tow and then it sank. CHAIR-I think the reports that we have in the appendages to the Powell report-and maybe even the other report-go into some detail as to what actually happened- Vice Adm. Shackleton-Yes. CHAIR-in putting the boarding party on board, leaving people in charge of the vessel, trying to fix the engine, taking it under tow, trying to pump water from the hold and the bilge of the vessel and so forth. Vice Adm. Shackleton-Yes. CHAIR-In relation to that survey of the seaworthiness, or the assessment of its motoring capacity, navigational capacity, food and water facilities, is an on-the-spot assessment done or is there a written report about it in the case of this SIEV or in the case of SIEVs generally? Vice Adm. Shackleton-I would have to check to see if there was any written report done but certainly an immediate on-the-spot assessment is made. CHAIR-A competent officer, knowledgeable about these things, would cast a weather eye on these things? Vice Adm. Shackleton-There would be an engineer inside who would have a look at the engine and others would look at the hull and so forth. These things are not typically in good shape when they sail from Indonesia. CHAIR-No. Vice Adm. Shackleton-It also depends on whether they deteriorate en route. But we also find they do smash their own navigation equipment communications, if they have some, and machinery. The intention is not to go back. CHAIR-You described the ships earlier as `derelict vessels'. Is that a description that you would stick with? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 137 Vice Adm. Shackleton-`Derelict' might be a bit strong, but I would regard them as well past their economic life. CHAIR-They are not robust seagoing vessels; they are more like frail craft, are they? Vice Adm. Shackleton-These things have not been well maintained. CHAIR-No. You and I would not go to sea in them. Vice Adm. Shackleton-Absolutely. CHAIR-In the case of SIEV4, do you know if it was taking water to any extent? Vice Adm. Shackleton-It started to take water and the pumps could not keep up with it. CHAIR-So the water gained above the capacity of the pumps to reduce it. Vice Adm. Shackleton-Yes. CHAIR-Therefore the vessel was filling with water over a time. Vice Adm. Shackleton-Yes. CHAIR-I think it is true at some point, isn't it, just harking back to the reports-and this is something that Commander Banks can tell us more about-the passengers on board tried to bail their boat, as did the sailors on board from the Adelaide; is that right? Vice Adm. Shackleton-I would have to check the detail of that. CHAIR-Were they out of sight of land when all this occurred? Were they in the deep blue sea? Vice Adm. Shackleton-They were out there, yes. CHAIR-The weather conditions in the photographs we have seen, and the sea state depicted in those photographs, look relatively calm, but there were reports that the sea, at some stages, was rough during the course of this operation. Is that true? Vice Adm. Shackleton-I would put that question to Commander Banks. The sea in the photographs, as you say, looked reasonably calm, but it can blow up and calm down again quite quickly. CHAIR-It was right on the edge of the cyclone season, wasn't it? Vice Adm. Shackleton-Yes. In relation to the question you had earlier, there was nobody on SIEV4 who claimed to be the crew or the master. Once we were on board, Adelaide detected three or four crew who could be identified on racial grounds, only in the context that they CERTAIN MARITIME INCIDENT CMI 138 SENATE-Select Monday, 25 March 2002 looked different, but you would have no way of proving that they were crew per se. They may have been other `cargo', as it were, that were picked up in Indonesia. All the others, I am told, did have a master and crew. Some were flagged and a few were registered. CHAIR-Some were flagged? Under what national flag, do you know? Vice Adm. Shackleton-Indonesian. CHAIR-I imagine those that were registered were probably registered as Indonesian vessels. Vice Adm. Shackleton-Again, I would have to check that for accuracy. Senator FERGUSON-Was the SIEV4 taking water when the Adelaide first made contact with that boat or did that only happen after some acts of sabotage? Vice Adm. Shackleton-I would like to get to Commander Banks to- CHAIR-How would the Adelaide know what was happening before it- Senator FERGUSON-I am just saying: did it appear to be taking on water? Vice Adm. Shackleton-When they went on board, they would have been in a position to make an assessment as to what it was doing, and I think Commander Banks is in the best position to give that detail. Senator FERGUSON-I am happy to wait. CHAIR-All I am saying is that I do not know how the Adelaide would know what was happening before it took possession, but that is another matter. Where were we, Admiral? You were saying that some of those vessels, or at least one or a couple of them, were flagged and some of them were registered. Do we know whether that registration reflected a current survey certificate? Vice Adm. Shackleton-You are getting into detail I do not have the answers to, but I can find out for you. CHAIR-It is just that that may well be relevant. If there is a surveying authority that approved these vessels as seaworthy-one presumes they would be Indonesian-it goes to the condition of the vessel, which may be an issue that we would wish to pursue. Vice Adm. Shackleton-The condition of the vessel and the status certification of it might be two different things. CHAIR-Yes, but my understanding is that, before issuing a survey notice, or a licence, a licensed surveyor has to sign off and say that this vessel is, according to him, seaworthy. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 139 Vice Adm. Shackleton-I am not sure of that procedure. CHAIR-In Indonesia? Vice Adm. Shackleton-I do not know if that procedure is there. CHAIR-Anyway, it is a minor detail. It is not one that I want to pursue now. We were talking about the people who, by their racial characteristics, could be identified as possibly crew, as different from those who were identified as asylum seekers. Has anyone from SIEV4 been charged with people-smuggling? Vice Adm. Shackleton-Not to my knowledge, but I can check for you. CHAIR-When the racially distinct group-I hope we are not getting into improper ground here-or this group of people that you could distinguish were taken on board the Adelaide, were they interrogated to see if they were crew? Vice Adm. Shackleton-They were all taken, as I understand it, to the forecastle, at the front end, and made to be as comfortable as it is possible to be up in that part of the ship. Whether anybody was interrogated per se or not I do not know. We would obviously want to try and find out who the relevant people were but, in terms of interrogation, we do not generally have that sort of practice as part of our activities. CHAIR-I see. But it would be normal, wouldn't it, in boarding a vessel, to ask who the skipper is? Vice Adm. Shackleton-Yes. CHAIR-It would be normal to find out who was in charge of it. Was that done? Vice Adm. Shackleton-I do not know. CHAIR-Our next witness, who I understand is gnawing on a pizza at the moment, may be able to tell us. Senator JACINTA COLLINS-The log says it was done. CHAIR-It was done. Right. The Navy personnel had some relatively long exposure to the people on SIEV4, as they did all those things that we talked about earlier. They took it under tow, so you had a tow crew on board the vessel while that was done- Vice Adm. Shackleton-Yes. CHAIR-so that the tow could not have been separated, I imagine-a tow watch or something. You had people on board-in the boarding party-to work on the engine, as I understand. CERTAIN MARITIME INCIDENT CMI 140 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-Yes. CHAIR-You had people on board to help pump the vessel. I think you had marines on board to keep relative order. Is that true? Vice Adm. Shackleton-I would have to check whether Adelaide had Army people on board. I am not sure. I will get somebody to bring me some information on that in a minute. CHAIR-Did any of the asylum seekers on board have any weapons? Did they brandish any weapons towards the Australian Navy? Vice Adm. Shackleton-Not that I am aware of. CHAIR-Did they seek to harm them in any way? Vice Adm. Shackleton-Not that I am aware of. It is SIEV4 you are talking about in particular? CHAIR-Yes, I am. This is the primary focus of our inquiry but our inquiry has, as Senator Brandis has rightly said, under motion from him been broadened and we may have to look at these. I hope we do not, but I get a feeling we may end up looking at all of these damn things separately. Vice Adm. Shackleton-Okay. CHAIR-If I can turn for a moment to your statement on 8 November, which in part- Vice Adm. Shackleton-I am told that there were no Army personnel on board Adelaide for that particular incident. CHAIR-There wasn't? Okay. So a marine would be an Army person, would they? They would not be a Navy person? Vice Adm. Shackleton-No. We do not have any marines. CHAIR-Okay. Is that a British phenomena, is it? Vice Adm. Shackleton-The Americans, the British, the French and a whole bunch of people have marines. In these operations, we are often supported by Army personnel who embark for this particular activity. CHAIR-Let us not get involved in that or we will be accused of having a discussion. In your statement on 8 November, you said in part, and I have got this part of it in front of me: The Maritime Commander kept me verbally apprised of the incident as it unfolded until it had stabilised, but at no time can I remember him saying to me that people had not been thrown into the water. Do you recall that part of your statement? CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 141 Vice Adm. Shackleton-Yes. CHAIR-This was the part of the statement that had been worked over, I think, by the public relations division in consultation with you, isn't it? Vice Adm. Shackleton-This is the press statement you are talking about of 8 November? CHAIR-Yes. Vice Adm. Shackleton-Yes. I spoke to the PACC people to put together the words that were released as a statement in which I said I did not contradict- CHAIR-I think you have repeated that several times today. We do not need to go there again. My only point in mentioning it is therefore these words were considered words; they were not off the top of the head or volunteered on the spot. Vice Adm. Shackleton-They were considered in the context of what I thought I knew at the time. CHAIR-Yes. Why then was it considered to-and I am curious about this-use the expression `but at no time can I remember him saying to me that people had not been thrown into the water'. That is to state a negative. Vice Adm. Shackleton-Yes. I guess my point was that the Maritime Commander might have said that people were thrown into the water and I was writing these words in relation to the Powell inquiry and the Powell report. CHAIR-But this was on 8 November. Vice Adm. Shackleton-Yes. Sorry, no. On 8 November, I made those remarks that ended up in the media-I do not know what happened to the message after that. I had been talking to the Maritime Commander the day before-in other words, 7 November-during our trip from Adelaide to Perth about what the videotape showed and brought up to date on the events surrounding this particular issue. But at the time, way back in October, the Maritime Commander and I would-sometimes frequently, sometimes not so frequently-talk on the phone about the particular events as they unfolded. I guess what I was trying to portray was that I did not come in my own mind to understand that people had not been thrown in the water until 8 November. Although the Maritime Commander might have told me prior to that, if he did, it did not register in my mind, because in our own way we had become used to this sort of behaviour. It did not surprise us that these sorts of things were being done. CHAIR-Can you remember the Maritime Commander telling you that people were thrown in the water? Vice Adm. Shackleton-No. CHAIR-Therefore he comes forward- CERTAIN MARITIME INCIDENT CMI 142 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-But nor can I say that I can remember him also saying that they were not. CHAIR-Well, this was the clarifying statement. Vice Adm. Shackleton-Sorry, are you talking about my opening statement today? CHAIR-No, I am talking about what you said on 8 November. Vice Adm. Shackleton-On 8 November what I said-I do not have the media statement here-was to the effect that I did not contradict the minister. CHAIR-I want to come to that. Why didn't you contradict the minister? Vice Adm. Shackleton-Because Defence had told the minister, via that convoluted loop that we described earlier, that children had been thrown into the water, and I was not contradicting that advice. CHAIR-But you knew-Senator Faulkner took you through this earlier today-that people had not been thrown into the water. Vice Adm. Shackleton-At that stage of the game, on 8 November, I was of the opinion that people had not been thrown into the water. But I did not know what advice had subsequently been provided to the minister during my absence from Australia. I guess that is in part why I was a bit surprised at what Hendy said. I had to revert back to what I knew the minister had been told, to the best of my ability. CHAIR-But why? If you are sitting there and you know that what the minister is saying is not true, why do you have to then fall into line and not contradict him? Vice Adm. Shackleton-It was not a case of what the minister thought was true or not; it was a case of what the minister had been told. I did not know what the minister had been told, other than that children had been thrown into the water. CHAIR-We are misunderstanding each other, Admiral. You knew that they had not been; why didn't you simply say they had not been? Vice Adm. Shackleton-My opinion at that stage of the game, on 8 November, was that they probably had not been thrown into the water. What I did not know was what the CDF was talking to the minister about-and it was his position to talk to the minister about it. I had not talked to the CDF since I had returned to the country, so I did not know what the minister had been told in the interim. It was not my place to make public statements about these sorts of issues in this particular instance unless the minister gave me approval to do so. CHAIR-But you had made a public statement a day or so before. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 143 Vice Adm. Shackleton-That same day I made the comment, which the media picked up on, about what I had said, yes. CHAIR-So you had made a statement. Whether or not you should have is an interesting issue, but you had in fact made a statement. Vice Adm. Shackleton-I had been authorised to talk to the media about the departure of the Kanimbla, the Sydney, the Adelaide and the like. I made those comments-which were probably inappropriate at the time-and hence I made a clarifying statement later. CHAIR-I know it has been a long day, and let us pray it will shortly close, but I thought that on several occasions throughout the day you had said that it is not your place to contradict the minister. Why not? If you know that what the minister is saying is not true then why wouldn't you contradict him? Vice Adm. Shackleton-But you see, Senator, I did not know that to be not true, because I did not know what the minister had been told. My clear recollection, albeit gleaned from various sources, was that the minister had been told that there were children thrown over the side. When I spoke to Hendy, he was very surprised that I had made the remark that I had, which gave me a clear indication that there had been no change-in fact, he said there had been no change to the advice to the minister-so I was in the position of not knowing what the minister had said and I was not about to make public statements contradicting what either the minister or anybody else had said. CHAIR-What did you do to find out what the minister knew? Vice Adm. Shackleton-At that stage of the game, I did no more. The videotape had been released into the public arena. I made the assessment that the minister knew, obviously, what was on that tape. If he were going to ask any more questions then he would direct those questions at the CDF. CHAIR-This is where I have some problem, Vice Admiral, to be honest with you. You knew, and I think Senator Faulkner brought this out earlier, that the report was that no children had been thrown in the water, that the photographs that had been exhibited in the media which purported to be evidence that children had were not true-they were of another event-and that the video was inconclusive because it was filmed on one side of the vessel when clearly people were leaving the vessel from the other side. So you had in your possession pretty decisive information about what had happened and, while I can understand that you did not know what the minister knew, it seems to me that you were much closer to the source and did know. Is it because of this order that authorises people who can and cannot speak about these things you felt you were outside of those orders? Vice Adm. Shackleton-At that stage of the game, yes. CHAIR-Were you motivated more to comply with those orders than you were to say anything that you thought might offend the minister? CERTAIN MARITIME INCIDENT CMI 144 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-I was in one sense conscious that I needed to correct the public record in terms of what the media were portraying as myself contradicting the minister, which was not what I intended to do nor do I think I did in the overall scheme of things. The other was the clear direction from the minister's office that matters concerning this would be dealt with by his office. CHAIR-Was that direction from the minister's office a decisive consideration in your mind? Vice Adm. Shackleton-Only in the context of it not being my place to be making public comments about what I might advise anybody about this particular issue. But it was clear in my mind that, if I had made a statement-whether it was true or not-that was being construed as contradicting what the minister had said then I had an obligation to do something about that. CHAIR-This order that we referred to earlier-I think I took Dr Hawke through it, because his signature appears on it, which has now apparently been repealed- Vice Adm. Shackleton-The Defence instruction, you mean? CHAIR-Yes, that is what I am referring to. It places a pretty strong straitjacket on who can and who cannot comment and puts the minister at the apex of that. When you say you do not feel you can contradict the minister, would you contradict a minister if you believed that that minister was misrepresenting facts that were injurious to the Navy? Vice Adm. Shackleton-I do not think that I would be doing that publicly: I would want to make sure that the minister had been provided with the full, frank advice of the organisation. Then it would be up to him to decide to correct the public record. CHAIR-In your discussion with the minister's office, did you take care to make sure that he was provided with the full facts of the circumstances? Vice Adm. Shackleton-I guess I did not talk to Hendy about what I had seen on the videotape. I was of the view that certainly the media adviser in the minister's office knew of the disconnect between the photographs and what they represented. CHAIR-You were satisfied that the media adviser in the minister's office knew of the disconnect; that is to say, he knew that the photos as they had appeared in the media were not of the event that they were alleged to be of? Vice Adm. Shackleton-In my mind, I was satisfied. CHAIR-You were satisfied about that? Vice Adm. Shackleton-Yes. CHAIR-Did you regard, when you were satisfying yourself about that, that, if you had told the minister's staff, that was good enough and that you did not have to then find out what the CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 145 minister's number was and tell him? Was telling the minister's staff as good as passing the message to the minister? Vice Adm. Shackleton-That was, by and large, the impression that I worked on. CHAIR-I will not spend long on this point, because I think Senator Collins has covered it. I am a bit worried, though, about how you weigh the value of information, how you assess information. We are told that, on the one hand, this is what Commander Banks said and, on the other hand, this is what Air Marshal Silverstone said. Senator JACINTA COLLINS-Brigadier. CHAIR-I have to make a blanket apology to the military that I am not all that literate in ranks; I do apologise. Senator JACINTA COLLINS-It was not the Air Force; it was the Army. CHAIR-I am doubly criminal. Vice Adm. Shackleton-No offence taken, Senator. CHAIR-My honour is offended if I have, in any way, misrepresented Brigadier Silverstone. I must say that I have never met an umpire who, after the event, thought on reflection that he got the call that he made at the time wrong. But you seem to be saying-I do not want to put words in your mouth, and please correct me if you think that this is wrong; I just want to get it clear in my head-that Commander Banks, when he offered the advice that he did to Brigadier Silverstone as to what was happening, may not have been focused on accurately providing that advice but `may have had half a mind on other matters'-I think they were your words. Why do you hold that view? Vice Adm. Shackleton-I have a strong sense of how busy he was and I have a strong sense of what he was doing at the time. CHAIR-He is a competent officer? Vice Adm. Shackleton-He is a competent officer. CHAIR-Everything that I have seen about him indicates that he is an extraordinarily competent officer, and I think he has conducted quite a heroic and praiseworthy effort, particularly in doing what he has done with SIEV4. You would have to say that this man is an exemplary officer, wouldn't you? Vice Adm. Shackleton-What I have to say to you is that there is nothing that I have said, that Silverstone has said or that Banks has said that I find contradictory. I am saying that the circumstances at the time may have resulted in Banks believing that he had seen and therefore said something; Silverstone recorded what he thought he had heard, but Banks in the end may not have said that. Someone is going to have to ask Silverstone why he wrote down what he did. CERTAIN MARITIME INCIDENT CMI 146 SENATE-Select Monday, 25 March 2002 CHAIR-And we should ask Banks. Vice Adm. Shackleton-Exactly. CHAIR-When he is done with his pizza, after dinner, we will. But it is the process that worries me. As an experienced officer running his ship, the guy in the front line, who is eyeballing the action, who is the actual witness, has a range of responsibilities. He has a second in command to relieve him of some of that while he is involved in an incident such as this, where he is required to divide his attention between the maintenance of the ship and the oversight of the actual incident. This is an experienced officer. Why would his oral eyewitness evidence be questioned? Vice Adm. Shackleton-I do not think it is. What you have here is an extension of what he was seeing and his synthesis of all of that, sent by a phone call to Darwin; from there, it gets into the system and it gets right to the very top very quickly. He may not have realised that he said what he did; in fact, all things point to that being the case. He did not know that the conversation that he had with Silverstone resulted in what it did, which was ultimately public announcements by Minister Ruddock. He was in the position of trying to deal, in real time, with the circumstances that he was in; what the rest of the world was doing was immaterial at that stage. CHAIR-So, in getting to the way in which this is appraised and weighed by the people at headquarters, if a commander on the spot and governing an incident says certain things, higher up the command chain the weight given to that-I am struggling to try to understand this concept-is less than to what someone interposing themselves between the commander and more senior officers thinks? Vice Adm. Shackleton-The answer is it depends. At each level through which information passes we try to apply the experience of people who have probably got more experience than Banks to assess: does this look right and feel right in the circumstances we are in or should we wait until we get some more information that might corroborate this? Do we ask some more questions to clarify it before we pass it further up the line? If we pass it further up the line, do we just put some caveats on it that say this has been uncorroborated and is still to be proven to be true? Senator FAULKNER-Commander Banks clarifies it himself, doesn't he? The ship are aware of the false news reports or the misrepresentation of the photographs and they act to clar- ify it. This is one of the key points, Vice Admiral: there was a failure at some level in relation to the wrong story emanating from somewhere in Defence at some time-and there are two reports and any amount of evidence we have had on that-and one thing that is absolutely clear is that Commander Banks and a range of other more senior officers in the Navy and Defence try to fix it. They do, don't they? They actually try to fix it, but it does not suit the government for this particular information to get out in the public arena, because the photographs are the evidentiary support that children were thrown overboard-and that is the problem. Vice Adm. Shackleton-The sequence of events, as I understand it, was that the Maritime Commander called Commander Banks on the telephone, which resulted in that signal that Banks sent from the Adelaide on about 10 October, which contained the summary of times and CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 147 an assessment that the Adelaide made. I said in my opening remarks I do not understand, from my perspective, why that did not go all the way up in a different kind of way. Other people are going to have to answer that question. Senator FAULKNER-But you do accept that, if the source was Commander Banks- which is a colossal `if' and qualification-there is no doubt Commander Banks takes significant action to correct it as soon as Adelaide is aware of the misrepresentation? You would have to accept that, wouldn't you? Vice Adm. Shackleton-I think the fact of the matter was that Commander Banks had not realised how his conversation with Brigadier Silverstone had been interpreted and thereby passed on, which had created the effect that it had. Senator FAULKNER-Sure. Vice Adm. Shackleton-It was not until the Maritime Commander said to him, `I want an assessment of what you have seen and what you now think of it, and send me that assessment'-which was what was done. Senator FAULKNER-That is right. They are aware of the press reports and also, of course, senior officers have taken some sorts of steps to ensure that the truth comes out. Vice Adm. Shackleton-Yes, that is right. Senator FAULKNER-So whatever criticism can be directed to Navy or Defence at the beginning of this story, about the false information, the misunderstood information or the differences of view, as I said to you I think at the estimates committee some weeks ago, at least you have to say that Navy and Defence did what they could within days-literally, within 48 hours-to try to correct this. Vice Adm. Shackleton-That is correct. Senator FAULKNER-But of course those photographs were supposed to be supporting evidence for claims that kids were thrown overboard, and it did not suit the minister and it did not suit the government for those corrections to go into the public arena. That is my concern. Now roll forward one month to November and to the issue that I spoke to you about earlier, when you produced your statement confirming-though you do not know with whom-that the minister was advised that Defence believed children had been thrown overboard. That statement, as I said-and I do not say it lightly-is at best a half-truth, because there is so much more that could have been confirmed. You could have said in your statement, `I also confirm that within days of receiving this advice the minister was advised there was no evidence to suggest that children had been thrown overboard.' You could have added, `The minister was also informed that the photographs which were released as evidence that children had been thrown overboard were taken a day after the alleged incident.' I think that is a reasonable point for me to make to you. And no brief goes from you, as I understand it, at any point to the minister that corrects this. CERTAIN MARITIME INCIDENT CMI 148 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-The point that I tried to make earlier was that I had been out of the country for nearly three weeks. I spoke to Banks, I saw the video and I knew what I knew about the photographs. It was my expectation that the sit rep that was produced by the Adelaide would have found its way into the advice given to government. I do not know why that did not get there. Senator FAULKNER-It seems to me that Commander Banks realised what had happened, he took action, as did some other senior officers in Navy, and, it seems to me, he was let down somewhere, in the chain of command possibly but certainly in the political interface, the government interface, with Defence. And neither you-and I am not saying you personally; I am thinking of you here as Chief of Navy; I appreciate that for that period you were not in the country-nor anyone else saw fit to communicate information to government that you were aware of from, I think, 7.45 p.m. on the evening of 10 October in relation to the photographs, for example. It is those sorts of issues that do require some level of explanation, going to the questions that Senator Cook asked. CHAIR-We are over time now, and I had actually hoped to complete this, but if you will bear with me I have just two more questions. First, I started this line of inquiry because I was worried about, or trying to understand, how the Navy-or the armed forces-assesses information and what weight it gives to it. It seems that what is being said here is that a front- line officer's view of what is happening is not necessarily what, at a higher level, would be taken as being the case. Vice Adm. Shackleton-No, I think, if anything, the CDF's actions place it in context, in that he put great faith in what was said. I think what is being missed here is that the way that Commander Banks's observations reached the outside world was via Brigadier Silverstone. There are comments that Commander Banks did not say that; Brigadier Silverstone obviously thinks he did. That was the way that the message entered the system. It was handled in various ways, and it resulted in the action that it did. Nobody is saying Commander Banks got it wrong. For a long time, people believed that Commander Banks did in fact make that statement, and it may well be that he did. I do not think that anybody is ever going to know whether he did or he did not. Senator FAULKNER-But you do know he tried to fix it. Vice Adm. Shackleton-Absolutely. I have got no problem with it. Senator FAULKNER-Whoever made the mistake, we know this: Commander Banks and some others tried to fix it. Vice Adm. Shackleton-And I think that is the point. Senator FAULKNER-That is the point I make. CHAIR-That is one of the points of this inquiry, that within five hours of this event allegedly occurring the Prime Minister and the minister for immigration made remarks about it to the media but then for another month the fax never got through the network, and that raises CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 149 the big question of why not. And-this is where I was going to finish-to use a technical phrase, it looks like there has been a stuff-up of some sort. Is that your view? Vice Adm. Shackleton-It is probably as good a way of describing it as you will get. CHAIR-Is the Navy going to fix this? Put it the other way around: what would have been the perfect way of handling this? Vice Adm. Shackleton-Again, you have to put it into context. It is easy to have 2020 hindsight. CHAIR-But now we have the luxury of it. Vice Adm. Shackleton-It would have been better not to have put it into the interdepartmental committee until somebody had had a chance to think it through. CHAIR-And is there some safeguard now that will not occur? Vice Adm. Shackleton-There is always a chance that something will slip. It depends on the nature of the operations. CHAIR-That goes to the question of the alleged information getting out. What do you think should happen in terms of corrections? Vice Adm. Shackleton-There is already work taking place internally as directed by CDF to look at these issues and how we manage information in Defence. I do not think there was a problem with the command and control per se-that worked. Where we could be criticised in some areas is the management of information associated with this, the way it was handled and the number of loose connections there were surrounding both the photography and the voice transmission between the ship and the shore. Senator FAULKNER-I would not expect politics to be a top-of-the-mind issue for you- and I am not critical of you or anyone in Defence in that regard. Do you understand that it is a significant issue that the understanding for a month before a federal election was held, the knowledge-firstly, that children were not thrown overboard and, secondly, that the photo- graphs purporting to be the evidentiary support that children had been thrown overboard did not actually relate to that incident-was not corrected in that one-month period? For those of us around this table and in this building who have, if you like, the political processes as a front and centre issue, that is a very significant failure. I wondered whether you would accept that failure of process-failure to correct the public record in the atmosphere of an election campaign-was something that ought never happen in this country. Vice Adm. Shackleton-Senator, you are asking me to comment on political process and I do not think I want to do that. What you have is the absolute right of a government, and through it the minister, to establish the ground rules by which the department and the organisation are going to work. That is what the minister established. There was no room for me or anybody else for that matter to go out and make public statements which contradicted or in some way took on the government. That is not our business, and I do not think that anybody in this country would CERTAIN MARITIME INCIDENT CMI 150 SENATE-Select Monday, 25 March 2002 like that either. But what I do not know is what the CDF and the minister were talking about throughout this particular event. My recollection is that the CDF did discuss with the minister the nature of those photographs. What I do not know is why the public record was not changed. CHAIR-It is possible that you and I might disagree, Admiral, but, if a government says something that is clearly wrong, and you know it is wrong, I would have thought there is an obligation to correct it with the government promptly and to make that clear. Vice Adm. Shackleton-Senator, that may well have happened. CHAIR-The other reason behind my questioning is that, for all I know, we may be at a state of war or engaged in a military conflict in the Gulf and, if this can happen on an issue of high readiness for the Navy, what could be done to repair it, to make sure that, with the heightened attention to defence matters in the current global situation, we can all rest in our beds and that this will not happen again in any other respect? That is the basis of my questions. I guess we will just have to leave it there. Are there any further questions? Senator MASON-I have further questions of Admiral Shackleton but it will take about another 10 or 15 minutes. CHAIR-Then the question is: do we do to Admiral Shackleton what we did to Dr Hawke? Senator BRANDIS-We will be here for half an hour. Let's break. Vice Adm. Shackleton-I am happy to keep going if others are. CHAIR-What we are debating is whether we all go to dinner and bring you back afterwards, or whether we continue and exhaust you now. Vice Adm. Shackleton-If it is only 10 minutes- Senator FAULKNER-I would be minded to go with whatever suggestion the admiral has, because he is the one who has not had an opportunity to leave the table. Vice Adm. Shackleton-We will all have to send out for pizzas, I think is the answer. Senator FAULKNER-Admiral, everyone here has had an opportunity to leave the table at times during your evidence. You have not had that courtesy, so I would be minded to fall in behind whatever the admiral says. Vice Adm. Shackleton-I am happy to keep going. CHAIR-You are happy to keep going? Vice Adm. Shackleton-Yes. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 151 Senator MASON-Briefly, you said I think in response to some questions from Senator Collins that the RAN, in relation to these SIEV incidents, in no case were responsible for creating a safety of life at sea situation. Is that right? Vice Adm. Shackleton-Yes. Senator MASON-When the boats sank-SIEV4, SIEV7 and SIEV10-who created the safety of life at sea situation in those cases? Vice Adm. Shackleton-It is my opinion from reading the material that the individuals on board those boats did. Senator MASON-Senator Bartlett referred to a document from the asylum seekers detained in the Lombrum detention centre, Manus Island, Papua New Guinea. I would like to ask you a couple of questions about that and ask you to comment on some paragraphs in that particular email. I think Senator Collins also made a brief reference to it, but certainly Senator Bartlett did. CHAIR-What is it? Senator MASON-It is a submission to us from the Iraqis detained in Lombrum detention centre, Manus Island, who were in effect the people on the SIEV4 boat. CHAIR-You have handed that to Admiral Shackleton. Senator MASON-You have before you, Admiral, an email from the Iraqis detained in the Lombrum detention centre, Manus Island, Papua New Guinea, dated 13 March 2002; is that correct? Vice Adm. Shackleton-Yes. Senator MASON-I will take you to the third paragraph of that particular email. I might refer you to some parts of this document and then ask you to comment on certain passages. On the 7th October 2001 at approximately 3.30-4.00 am the Australian frigate Adelaide (01) fired warning shots to try and scare us and to force the captain to stop the boat. They called to us in English and Arabic demanding us to stop the boat so they could give us supplies that we needed. Then the rest of the paragraph is about the fact that the boarding party boarded the SIEV4. The next paragraph commences: There was a navigator officer and the wheelman- from the Adelaide- that forcibly took over from the Indonesian crew and changed course to the opposite direction, then all the passengers knew that they were lying- that is, the people in the boarding party- CERTAIN MARITIME INCIDENT CMI 152 SENATE-Select Monday, 25 March 2002 to us about providing supplies, while their main purpose was changing our course towards Indonesia. Do you think that members of the RAN were lying in that context? Vice Adm. Shackleton-I would have to get somebody to verify that people from the Adelaide said that they were going to stop so that they could give them some supplies. I do not know if that is true or not. Senator MASON-I will go to the next paragraph which commences: By using the maximum speed can get from the engine they pushed the speed levers heading toward Indonesia,- `they', of course, refers to the boarding party- causing a heavy unnatural smoke getting out from the engine to the women's section, bridge and outside the accommodation causing asphyxia for the passengers, especially the women and children. The boat kept on moving and after sometime the engines sound start to splutter until it went out completely. We couldn't hear the engines anymore and there was no more smoke. It was then that the Australian marines moved out the boat in a rushing way as if they were escaping and we were left by ourselves about 10 to 11 am, 7th October. After that the Indonesian crew told us they think we are in international waters and the engine was broken, water pump and rudder too. The Australian navigator left us a small compass ... The next paragraph reads: All the passengers were shocked when remembering the claims of the Navy who firstly offered to help and provide our needs such as food and water and now they had deserted us, left alone in the middle of nowhere and the wide ocean in front of us, with the terrible condition of the engine and water leaking through the boat, because the pumps connected to the main engine were stopped and no more fuel left to operate the portable emergency pump. Vice Admiral, my question to you is: what would you make of any suggestion that the sailors of the Adelaide, the boarding party in particular, were responsible for the failure of the engine, the water pump and the rudder to work? Vice Adm. Shackleton-I find it a bit surprising because I thought that the people from the Adelaide in fact had tried to repair the mechanicals in this particular boat so that it was serviceable and could continue on its way. I cannot answer this; I would have to get assistance from Commander Banks to deal with this. Senator MASON-I may ask him some questions about that. The last reference is on page 4 of the document-I do not think it is actually marked page 4, but it is the fourth page: After a while events were happening rapidly, the boat went down and we were dropped into the ocean with all our possessions which included money, jewellery, personal belongings, documents, etc. Whilst many of our personal belongings were simple things, they mean a lot cause they were the most precious we were able to bring. All these were possible to be saved if the decision to abandon ship was taken earlier. With the help from the Navy nothing would have been lost. Do you accept, as the head of the Navy, the responsibility for the sinking of SIEV4? Vice Adm. Shackleton-No. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 153 Senator BARTLETT-Mr Chair, firstly I want to say that I do not think that these people are saying that it was the Navy's fault the boat sank. Either way, can I ask, given that you have quoted from it extensively now, that this submission be published and made public as well? CHAIR-Is there any objection? Senator FAULKNER-I do not mind, but I think we have to deal with a whole range of submissions and I am just worried about picking submissions off one by one. You know what my general approach is, as all committee members do: I believe in releasing submissions whenever humanly possible. So I have got no problem with Senator Bartlett's proposal. There is a whole raft of material here that we have to deal with, and there is a bit of a weakness in one or two submissions being made public and not others. I am keen to see as much as we can make public put into the public arena. I just say, in relation to this: sure, let us make it public, but let us also deal with the other things as soon as we reasonably can. CHAIR-I think that is good counsel in the sense that we have a body of submissions which, for all I know, any member of this committee may well want to tender in evidence or quote from extensively. I think it would be much better if we gave holistic thought to what we do about all of them. But, we did set a precedent earlier today and I have a proposition before me from Senator Bartlett. I did not understand you to oppose the proposition. Senator FAULKNER-Certainly not. I said my general approach is always to say yes, let these things be made public, but there is a lot of other material that we will have to try and deal with quickly. I hope other committee members would agree with that. CHAIR-I do want to say that it is desirable to make that decision fairly quickly because this is getting to a point where things are trickling out by happenstance rather than by considered decision. Is there any objection to releasing this? Senator MASON-No. CHAIR-There is no objection so it is so ordered. Are there any further questions? Senator BARTLETT-There is a suggestion it might be helpful for Commander Banks to get a copy, because I would certainly be interested in- CHAIR-It is now released and I think the secretariat could make a copy available to Commander Banks. Senator FAULKNER-Could we have a very brief private meeting about the release of other submissions? CHAIR-I wanted to have-I foreshadowed this after afternoon tea-a quick housekeeping meeting before we adjourned for dinner. Senator FAULKNER-That would be great. CERTAIN MARITIME INCIDENT CMI 154 SENATE-Select Monday, 25 March 2002 Vice Adm. Shackleton-I have one more piece of information which I would like to give before you close. CHAIR-This is a very appropriate time to do it. Vice Adm. Shackleton-In answer to Senator Collins, who was asking about draft media releases by Captain Wright, my advice here is that he took several handwritten notes to the meeting with him and on completion these notes were disposed of. Frankly, this is not something I would expect anybody would have kept a record of. CHAIR-Thank you very much, Vice Admiral. It has been a long afternoon; we have enjoyed your company. Proceedings suspended from 6.51 p.m. to 8.17 p.m. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 155 BANKS, Commander Norman, Royal Australian Navy CHAIR-The inquiry into a certain maritime incident will come to order. I now call to the table Commander Norman Banks. Commander Banks, I think I can speak for the entire committee when I say that we have a high regard for the work that you have done and we respect the role that you have played. I think I can speak for the entire committee when I say that we would like those views conveyed to your ship's complement as well. Cmdr Banks-Thank you very much. I shall do that. CHAIR-I will ask Senator Bartlett to commence the batting. Before I do that, though, I have just one question: were any children thrown overboard? Cmdr Banks-I was going to make a statement, if I could, and I will answer that question. CHAIR-Please proceed to make that statement. Cmdr Banks-Distinguished senators, I am Commander Norman Stewart Banks. I am an officer with 25 years service in the Royal Australian Navy. Since 6 July 2000, I have had the privilege to command the guided missile frigate HMAS Adelaide. I expect to relinquish that command in the normal course on 26 June 2002. I make this statement in my capacity as the commanding officer of HMAS Adelaide. I also wish to advise the Senate that I make this statement of my own volition. I have not been coached, instructed or directed in any guise, direct or implied. To the contrary, and as is my norm, senior officers have consistently instructed me to open with a straight bat. As a career professional, I would ask the honourable senators to respect that I am unashamedly apolitical and that I cannot and will not make comment on matters of government policy. As a loyal servant, I will desist from any comment that could be remotely construed as critical of my senior officers-officers for whom I have a tremendous professional and personal respect. I will, however, speak freely about the events of 6 to 10 October 2001 and the circumstances surrounding what became known as SIEV4-suspect illegal entry vessel-or, as you know it, `a certain maritime incident'. I wish to also emphasise that the specific detail of events of that time have, to some extent, been superseded in my mind by many other, more recent activities. To bring some situational and factual awareness back, I have had recourse to refer to notes and signals taken at the time but retained in HMAS Adelaide throughout. I have also refreshed my memory since the ship's return to Australia on 13 March 2002 by a cursory review of the Bryant, Powell and Hansard reports-documents I had not seen until I returned to Australia. Nevertheless, it is also apposite to say that the events of SIEV4 were by their very nature extremely significant and, even without the subsequent furore and the repeated investigations, CERTAIN MARITIME INCIDENT CMI 156 SENATE-Select Monday, 25 March 2002 the rescue of 223 unauthorised arrivals by HMAS Adelaide would always have stayed in my immediate recall as a most memorable incident. Believe me, I have relived the events of that period in early October thereafter and many times since. Wherever possible, I have tried to avoid being influenced by media comment-being absent from Australia for the period 31 October to 13 March has made that task a little easier. I was in Australia during the period 6 to 8 November. Access to domestic public information is not easy on a deployed warship. Whilst I have had some information passed to me, I have not had the full story that everyone else in Australia has seen in the various media articles. All statements I make are of my own making and have not been reviewed by other witnesses. I can make no comment on the Pacific solution, as I have had no involvement in that matter and I have only been involved in SIEV4. As part of my preamble, I should also advise that until 2000 I worked at Strategic Command in the Australian Defence Headquarters organisation on the Operations staff and had dealings with illegal immigration policy matters. I dealt with the issue as a staff officer, Maritime Operations, and attended the Prime Minister's task force interdepartmental committee in 1999 and 2000, representing Major General Keating. Accordingly, I have worked alongside a number of the key players involved in that policy matter at the working level, including Ms Bryant, Ms Halton, Mr Farmer and Mr Jordana. I have also met Senator Collins before, when she kindly visited HMAS Adelaide for a short sea ride-I think it was in May-but that was well before SIEV4. I know of Mike Scrafton from his days in Defence but not since. I have also hosted Senator Hill on board in his capacity as the new Minister for Defence. Obviously, I know all the senior military officers involved in this matter. Apart from that, I have had no involvement with other people on this matter, and I stand here largely with my own information. I now intend to outline a short and largely chronological description of the events that summarise the involvement of HMAS Adelaide in the interception, detention, escort and tow of a 20- to 25-metre wooden-hulled type III Indonesian vessel that became known by the department of immigration identifier SIEV4, and the subsequent rescue of 223 unauthorised arrivals when that boat unfortunately sank in the vicinity of Christmas Island on 8 October 2001. It would not be a Senate appearance by me without photographs. I now intend to supplement that statement with some photographs from the 420 taken on board HMAS Adelaide. These are a `best of' selection which in my mind will set the scene and add some context to your deliberations. With your leave, I present those photographs. CHAIR-As there is no objection, leave is granted. Cmdr Banks-I have two sets of large photos. They are numbered 1 to 31, and I will draw attention to them as we go through. I have a set here as well, and I have a copy of them on disk if they need to be reproduced. CHAIR-I am not sure how we are going to manage this, but I am sure we will. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 157 Cmdr Banks-HMAS Adelaide deployed on 16 July 2001 for a series of exercises to pro- mote regional engagement in South-East Asia. On 17 September 2001, Adelaide was diverted to Operation Relex. We departed from Singapore and sprinted through the Indonesian archipelago to join HMAS Arunta for a handover of humanitarian aid stores and an S70B helicopter. On 19 September, HMAS Adelaide chopped operational control to Commander Joint Task Force 639, and Adelaide assumed duties as the western surveillance and response group and commenced a maritime surveillance and response patrol in the vicinity of Christmas Island. The Operation Relex mission was assumed without the benefit of any pre-briefs, and the ship and I read into the task vide DISCON-defence integrated secure communications network-messages which were addressed to the ship. In summary, HMAS Adelaide had been directed by Commander Joint Task Force 639 to conduct a maritime surveillance and response patrol to contribute to a whole of government approach to deter unauthorised boat arrivals-UBAs, as they were then known-from entering Australian territorial waters. I was also directed to prevent potential illegal immigrants- henceforth referred to as `unauthorised arrivals'-from gaining access to the Australian migration zone by containing them in designated locations and providing humanitarian assistance until their transfer to transportation for onward movement out of the Operation Relex area of operations could be provided. I was further directed to achieve this mission without loss of life or serious injury to any party. On 22 September, Commodore Jim Stapleton, RAN, relinquished duty as Commander JTF 639 and COMNORCOM, Brigadier Mike Silverstone, assumed duty as Commander JTF 639. He operated from our joint staff headquarters in Darwin. Brigadier Silverstone's `Commander's intent' was to conduct surveillance and response operations to contribute to a whole of government approach to deter unauthorised boat arrivals from entering Australian waters. This was to be achieved by intercept and warning-off on the high seas. If the unauthorised arrivals gained access to the Australian contiguous zone, a boarding party was to detain the SIEV, sail it to the outer edge of that contiguous zone and, if safe, release it. Should the SIEV re-enter the zone then a boarding party was to detain the SIEV and crew and take them to a designated holding area, contain the situation and manage the unauthorised arrivals in a compliant state, pending a government determination on transfer and/or transportation. At no stage were unauthorised arrivals to have access to the Australian migration zone. The mission was to be achieved without loss of life or serious injury to any party. Throughout the period the Commander Joint Task Force 639 and I discussed the operation and the contingency plans with his staff and indeed with the commander. This was usually done by telephone, and daily `fireside chats', as we came to know them, were held by telephone between me and the commander and, I believe, between the commander and the other commanders. In response to direction, Adelaide developed a comprehensive plan for a mass embarkation of unauthorised arrivals based on a safety-of-life-at-sea incident-most probably either a sinking or a sunken SIEV. Adelaide had calculated the possible number of unauthorised arrivals the ship's forecastle deck could accommodate with a rehearsal using the ship's company. Whilst 300-plus was within our capacity, I had also spent considerable time trying to carry the message that Adelaide was a frigate and did not have the capacity or the capability to sustain unauthorised arrivals on board other than for a very short period. I viewed our role as an intermediate transport ferry vice a CERTAIN MARITIME INCIDENT CMI 158 SENATE-Select Monday, 25 March 2002 holding hulk ship. With a designated troop carrying capacity, Tobruk and Manoora had the better capability to role shift to support an embarkation of unauthorised arrivals. Certainly, by 6 October, I considered that Adelaide was well prepared for any such humanitarian task that might arise, albeit only an ad hoc solution with a short duration being in our retinue. On Saturday, 6 October, at about 1350G-the time zone that takes place in Christmas Is- land-and in response to shore based secret intelligence cuing, HMAS Adelaide, with a Royal Australian Air Force P3-C Orion aircraft, call sign MARINER 1, assistance intercepted a criti- cal contact of interest with approximately 50 persons visible on deck 100 nautical miles north of Christmas Island. Adelaide assumed the on-scene commander and manoeuvred to shadow the CCOI, critical contact of interest, to maintain on-the-horizon radar-visual contact and to be ready to pass deterrence warnings by long-range rigid hull inflatable boat-henceforth referred to as RHIB. The 20 to 25 metre wooden hulled vessel initially flew an Indonesian national flag and was on the high seas well north of Australia's area of jurisdiction but was tracking south at about eight knots. There was every expectation that this was a SIEV bound for Christmas Is- land. Of note, the P3-C reported the personnel on board were all wearing life jackets. That evening sunset took place at 1754G. The interception, shadow and delivery of the department of immigration warnings phase of the mission proceeded largely without incident and routine reports were signalled to all the relevant operational authorities in accordance with well-established maritime interception operation standard operating procedures. Of note, the unauthorised arrivals displayed visible and oral aggression and would not accept delivery of the DIMA warning notices. I reported that in one of my sit reps. That evening I was directed to acknowledge receipt of instructions on how to handle SIEV4. I was to deter the SIEV and its passengers from seeking access to Christmas Island. Again, secret reporting confirmed that. In doing so, I was to take every reasonable means to achieve the mission without needlessly risking the safety and wellbeing of my crew, the ship-that is, Adelaide-and the lives of the unauthorised arrivals on board the SIEV. I was also authorised to exercise my judgment to board, but only when so ordered by the Commander Joint Task Force, and to remove the vessel from the Australian contiguous zone and, if need be, to detain and escort the SIEV to the vicinity of Christmas Island. But in no way was I to allow the unauthorised arrivals access to Christmas Island. The long-range RHIB insertion confirmed the vessel was a SIEV and it was considered to be the Olong vessel that I had been advised had departed Indonesia on 5 October. Based on information from the unauthorised arrivals, the RHIB boarding party had revised the number of unauthorised arrivals to be in the order of 208 personnel, all of Middle Eastern and/or Iraqi origin. Just about all the personnel seen, or at least 80 per cent, were wearing life jackets. A more accurate count of the souls on board was not possible, given that it was night-time, the long-range RHIB team had not boarded the vessel, as we had no authority to do so, and the information was freely provided by the passengers and therefore assumed to be reliable. The unauthorised arrivals comprised a 50:50 ratio of males to females with at least eight to 10 children sighted. One very small child, an infant, was visible, and a second small child was seen holding a sign that read `SOS'. Identification of the crew-presumed to be Indonesian-was difficult and not really effected until 8 October. Adelaide determined the vessel was seaworthy and that an in extremis or safety of life at sea situation was not evident. Adelaide maintained a shadow role and awaited direction from Commander Joint Task Force 639. Again a number of sit reps were exchanged. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 159 Commander JTF 639 staff issued photos of the SIEV-the unauthorised arrivals-passed digitally by HMAS Adelaide via JCSS imagery, which was also presumably obtained from the P3 flight earlier. One of the photos is numbered one and it shows a number of, in your vernacu- lar, SUNCs-I think the term now is `unauthorised arrivals'-being viewed from the long-range RHIB. You can see its darkness and you can see they are wearing life jackets. In this photo you can see no signs of distress. This photo is provided in the context of the life jackets and the fact that the initial operation took place in darkness. Senator FAULKNER-Where did you say that photo was taken from? Cmdr Banks-It was taken from the long-range RHIB, the 7.2 metre boat, adjacent to SIEV4. This photo was actually taken from the starboard side of the SIEV. Due to the height differential you can see that the RHIB crew are actually looking up into the SIEV, which was part of the problem in getting them on board subsequently. From the experience of the initial long-range RHIB, it was considered that any subsequent boarding would be problematic and that a non-compliant action, potentially employing the graduated use of force, was likely to be necessary. Commander Joint Task Force directed that I equip and prepare the boarding party to achieve the task of successfully boarding the SIEV at the first attempt. At 0130G, the RHIB from Adelaide was again alongside the SIEV, with a boarding party at the ready. At 0139G, on Sunday, 7 October, the SIEV altered course towards Christmas Island, the lights of which were now becoming visible on the horizon. We were getting the loom of Christmas Island on the horizon. By 0230G, the SIEV entered the Australian contiguous zone. From 0300G, warnings to heave-to were passed in English and Bahasa by radio and loudhailer both from Adelaide and the alongside RHIB, and communications were also attempted in Lebanese and Arabic by a sailor of Lebanese origin. My boarding party log would refer to that in detail. After telephone conversations with, and approval from, Commander Joint Task Force 639, I commenced action to compel the SIEV to heave-to to allow my boarding party to embark and eventually commenced firing aimed small arms-5.56 mm Steyr-and 12.5 mm .50 cal machine gun warning shots ahead of the vessel at 0359G on 7 October, and again at 0409G, 0416G and 0420G. The SIEV was, at this stage, well inside the Australian contiguous zone, approximately two to three miles from the Australian territorial waters of Christmas Island, and proceeding directly towards Christmas Island at about seven knots. I need to emphasise that only aimed shots were fired directly into the water, an area 50 feet to 75 feet ahead of the vessel. A searchlight was used to illuminate both the weapon firer and the area in the water ahead of the vessel where the rounds were to land. This ad hoc process was introduced by me to clearly show my intent. Warnings on loudspeaker continued throughout. The vessel did not heave-to and at 0430G the Adelaide manoeuvred more aggressively close to the vessel to slow it down. This facilitated a distraction and allowed an assault type non-compliant boarding, using the RHIB, to be effected whilst the vessel was still under way. Having conducted a successful insertion of the boarding party in darkness, between the time 0439 and 0442G, I directed the vessel to turn towards Indonesia and, as directed by CJTF, pre- pared to provide any necessary but basic humanitarian assistance to calm the unauthorised arri- CERTAIN MARITIME INCIDENT CMI 160 SENATE-Select Monday, 25 March 2002 vals. Should the vessel not continue to return to Indonesia, I was to provide sufficient delay to allow authorities to prepare Christmas Island for possible reception of the unauthorised arrivals. The boarding party of nine estimated there were 250 unauthorised arrivals on board. This num- ber was also proven incorrect. The boarding party reported that they were angry, disappointed and making veiled threats to commit suicide, gesturing with wooden sticks and being very vo- cal. One unauthorised arrival jumped overboard but was promptly recovered by the RHIB. The SIEV was eventually turned around and ground made to the north. I reported that in one of my sit reps. At 0539G, sunrise took place. The second photograph, and photos Nos 2 to 9 show the sequence of events in relation to the man overboard. Photograph No. 2 clearly shows it is daylight, but the photo has been enhanced, in the sense of contrast and brilliance, to allow you to see what we saw. This period was the period of morning twilight, so darkness had become dawn and was becoming sunrise, but the ambient light was such that it was all clearly seen by the naked eye. You could also see from here that the visibility was very good. I think there was a report somewhere that I could only see 200 yards or 300 yards if I was lucky. That is erroneous. I could see for several miles. Photo No. 2 also shows some of the SUNCs on top of the coach-house preparing to jump overboard. Photo 3 shows a number of heads bobbing in the water and the RHIB in attendance. The RHIB already has one or two people embarked, who are wearing orange life jackets-the same life jackets from the earlier SIEV photo-and there are four heads in the water about to be recovered by the RHIB. Photo 4 is a general photo of Adelaide getting much closer now that this event has taken place. There I am trying to provide more presence and assert my control. You can see that there are a number of people on the coach-house-some of whom subsequently jumped-and the beginning of the stages of a man dressing child in a life jacket at the aft or end of the coach-house about 2 or 3 metres from that aerial, Senator Collins. Photo 5 again shows that in a little more detail as Adelaide got closer. In photo 6, you can see the difference in the light as the photos have been adjusted. Photos 7 and 8 are of similar events. I would ask the Senate to note in photograph 8 that at that stage, whilst the boat was seaworthy, I had some concerns about it. You can see water coming out over the deck and running down the ship's side and you can also see that the boarding party are very crowded by the large number of SUNCs present and that the SUNCs are beginning to cause damage to the SIEV-the gateway is removed. And in photo 7 there are some items being discarded overboard. CHAIR-In photo 7 you can see water coming from the decks, as well. Cmdr Banks-Yes. Senator JACINTA COLLINS-Commander, is the child still at the top? Cmdr Banks-Not in photo 8. In photo 6 the child is still sitting on the coach-house. In photo 7 the child has been returned inside the coach-house and those are some of the unauthorised arrivals who came up and helped move that father-the man I assume to be her father-and child back inside. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 161 Senator JACINTA COLLINS-Do you know which rail the child was held over? Cmdr Banks-It would be on the starboard side aft, immediately adjacent to the coach- house where those people were standing. If you look at photo 6 you can see quite clearly that she was sitting on top of the coach-house adjacent to the starboard side railing. It may be an optical illusion for you-it looks like the port side. It was actually the starboard side that she was on. The photo was taken on the port side. Photo 8 shows one of the males preparing to jump. I do not have a photo that shows that he actually jumped. Photo 9 shows Adelaide's RHIB returning to Adelaide. I think we had just embarked the medical sailor and our intent was to take him back to the SIEV. It shows two of the people recovered from the water in the RHIB. Both are male, both are Middle Eastern and both are wearing life jackets. There is some conjecture and one is assessed as possibly being a youth. His age was never verified. There was conjecture that he may have been a teenager-13, 14 or 15. Other people said he was a 17-,18- or 19-year-old. One or two people thought he may have been in his early twenties. I guess some of my photos are out of sequence now. After first light the first man overboard took place at 0506 and others between the times 0543 and 0556G. Fourteen unauthorised arrivals jumped or were thrown overboard. I use the words `thrown overboard' here advisedly. Those were the words that were used in my signal and reported repeatedly. They jumped or were thrown overboard in a series of voluntary actions by the unauthorised arrivals. All were recovered by Adelaide's RHIBs and returned to the SIEV. What is not shown in the photographs is that I had two RHIBs in the water and I used both RHIBs to recover the people. An FFG is normally only fitted with one RHIB but we were able to acquire two RHIBs by a deft deal and I am very grateful that we had two RHIBs for that operation. I do not believe that it would have been successfully concluded without the presence of a second boat. Commander JTF 639 was informed of this action, of the people overboard and their recovery, by telephone and signal. A second boarding party of nine was inserted to better restore control and, hopefully, to prevent a mass exodus to force a safety of life at sea situation, a consideration which was very much on my mind. In my sit rep message No. 9, and in the boarding log, I did not make mention of a child held over the side incident, as I viewed this event largely as an inconsequential incident in the overall scheme of things. The SIEV continued northward, with Adelaide in a close escort role, to the outer limit of the Christmas Island contiguous zone. The ship provided some medical assistance, and the boarding party revised the number of souls on board to 186; this number was, eventually, also proven incorrect. Photograph No. 10 shows a shot from the coach-house, looking down into the SIEV, showing the starboard side aspect. The sailor in grey overalls is the ship's medical sailor. He is providing aid to a number of people. In the foreground you can see an IV drip being hung up on the coach-house, and the line into the wrist of the woman lying down with a life jacket. That was repeated for a number of people who were alleging they were dehydrated; they were treated by our boarding party and their medical teams. Efforts to provide assistance, such as water, were not welcomed. Indeed, on occasions, the water that we provided was thrown overboard by the unauthorised arrivals on receipt. Again, I reported that in the signal. With 200-plus irate personnel on board and a boarding team of 18, all CERTAIN MARITIME INCIDENT CMI 162 SENATE-Select Monday, 25 March 2002 operating in a small and very unfamiliar vessel, it was not a surprise to me that the vessel was continually being sabotaged. The steering and the engines were disabled at various times. Van- dalism and arson had been conducted, and continued. However, ground was made northward, and the boarding party were extracted from the SIEV at 1029G, as the SIEV exited out of Aus- tralian jurisdiction 24 miles from Christmas Island. The SIEV and the SUNCs were directed to Indonesia. They were shown a chart, and I also provided a hand-held compass to assist them with that. They had earlier thrown their own compass overboard. Having returned the boarding party to Adelaide, Adelaide remained outside the nominal visual range and used EOTS, the electro-optical tracking system, to observe the SIEV, which was now, again, dead in the water about five nautical miles from Adelaide. My primary focus here was an expectation that the SIEV was generating a safety of life at sea situation, and I retained a reasonable concern for the unauthorised arrivals' safety, noting the deteriorating afternoon weather and the general state of the vessel, whose steering was certainly tenuous. We had gone to some lengths to help repair that steering, but it was, arguably, still a tenuous steering system. While the mission had been accomplished and the SIEV had been deterred from effecting an entry into the Australian contiguous zone, and I had done that without injury or loss of life, I was not comfortable that a win-win situation had been achieved. With a number of women and children on board the SIEV, and the state of repair of the steering and the engines, a distress call was expected sooner or later. Concerned about that seaworthiness and, to some extent, situating the likely appreciation that the boat would eventually declare itself in distress, I remained out of obvious visual range but took station a prudent five nautical miles clear of the SIEV, such that I maintained radar and EOTS surveillance and that could be continued. I was not surprised that, at about 1.39G-correction: at approximately 1330G; I am having a great time with these times, and I understand that we will all have difficulty with times-on 7 October, the SIEV hoisted a signal consisting of a square flag with a ball, or something resembling a ball, hanging below it. Additionally, several unauthorised arrivals were slowly and repeatedly raising and lowering their arms outstretched to each side. Photograph 11 is taken somewhat after that time, because I am quite close to the SIEV. You can see a man waving a white flag, and the people waving to us. Unfortunately a still photograph does not quite show the waving, but they were gesturing. In accordance with the international conventions, I took this to be an international distress call and had this verified by my navigator and my on-watch PWO. As reported in signal messages, and in discussions with the commander, CJTF 639, the SIEV was considered a vessel in distress and a decision was made to tow the SIEV to Christmas Island to await government determination. The boarding party insertion and subsequent tow proceeded without incident until the afternoon of Monday, 8 October. Throughout, the unauthorised arrivals were almost delighted to be in our care, and the mood and bonhomie had decidedly changed. Disturbances and aggression were no longer evident. Photograph 12 shows just the moment before we passed the tow to SIEV. You can see in the background the SIEV, the water containers, and all those items are back on board. She is dis- playing a distress symbol, the white flag with a black ball, and we are preparing to tow the SIEV. I have a towing line flaked out on Adelaide's flight deck and we are manoeuvring to pass CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 163 that tow. The vessel was towed for a period of just over 24 hours without incident. A good tow was maintained and a speed of advance of two to three knots was made. The vessel was towed back into the Christmas Island contiguous zone but remained out of sight of land throughout. At night-time the loom of lights were visual but during the day it was pretty hard to see the land from the cloud and their lower elevation. Food, water and humanitarian aid, including medical checks, were provided. Adelaide set up a racetrack north of Christmas Island. I wanted to maintain my situational position whilst determinations were made. On Sunday, 7 October, Adelaide was informed that the ship would return to Fleet Base West and prepare to redeploy to the Middle East as part of an ADF contribution to the international response to global terrorism. That information was formally confirmed on 8 October. I mention this in a contextual sense as this next deployment was also very much in the forefront of my mind throughout the ensuing events of SIEV4. I had been aware of the possibility that the Adelaide would redeploy, or could redeploy, from 5 October. After repeated efforts to stem the water ingress to the SIEV's hull, and largely without warning, at 1700G on Monday, 8 October, the SIEV began to rapidly sink in a position 16 nautical miles north-west of Christmas Island. Photograph 13 shows the vessel from about 200 yards from the Adelaide. You can see there that the vessel is much lower in the water than it was in earlier photographs. You can see the towline is still in the water-the tow is slack-though we stopped the tow to pass a peri-jet hose-the peri-jet is a pump on board Adelaide. We exhausted portable pumps. I then took the unusual move of passing hoses to the SIEV, put those hoses in the SIEV and used the pumps on Adelaide to discharge the water from the SIEV. As you are aware, that was ineffectual in the end, although for some time it actually stopped the water ingress and reduced the water ingress. However, circumstances did change at 1700. The next photographs, 14 to 23, go through the subsequent sinking of the SIEV. The tow was stopped and the embarked Navy steaming party of 11-the number had been increased to 11; we were actually about to serve up the evening meal-effected what I called a `controlled abandon ship' from SIEV4. Adelaide launched six 25-man life rafts and, with two 7.2 metre RHIBs already in the water, commenced a rescue of the unauthorised arrivals, all of whom were in the water. I will talk through some of these photographs if I can beg your indulgence. Photograph 14 shows that the vessel went bow down very rapidly. You can see the sea-state a little clearer in this shot-and there is a slight sea-state-showing that the boat was taking water over the deck. Some of the luggage started to float out of the SIEV and the people-in a natural panic-began to move around the SIEV and affect the vessel's stability. I think I have timings for these photos as well. Photo 15 was taken in the afternoon of 8 October. It shows the SIEV is now nose down and the forward RHIB has just extracted an infant from the port side of the SIEV. The bow of the vessel is intact and it is clear evidence that the tow had not caused the vessel to break up. I be- lieve that one of the press reports was that we pulled the bow off the vessel. I also wish to em- phasise the point that the infant was extracted to the RHIB. People on board the SIEV were concerned. They passed the baby to our RHIB and we took it away as one of the first people off the SIEV. CERTAIN MARITIME INCIDENT CMI 164 SENATE-Select Monday, 25 March 2002 Photo 16, taken shortly thereafter, shows the vessel settling bow down. Clearly the vessel is now sinking and personnel are getting ready to be evacuated firstly to the RHIBs. Lots more of their personal luggage is floating away and, indeed, becoming flotsam and jetsam. Photo 17 shows the situation deteriorating. People have now taken to the water and a safety of life at sea situation has clearly unfolded. The order to launch life rafts was given well before that. Photo 18 shows the vessel listing heavily to port. Most people are now off-many are still in the water but most are now off the SIEV. Photo 19 shows one of the life rafts, reasonably crowded with the unauthorised arrivals. For information, the orange life jackets are those that were provided with the SIEV. The yellow and sort of green coloured ones are those that were provided by Adelaide. Photo 20 shows the SIEV now settling again bow down and listing this time to starboard. Four of the life rafts are in the water and there is evidence that part of the boat had begun breaking up. That photo was taken some time between 1730 and 1800. Photo 21 is a rather moving photograph of a small infant having been placed in the life raft before other people got into the life raft to move the child out. You can see my crew standing by to assist and, indeed, one of the SUNCs standing by to assist. Photo 22 shows a life raft alongside Adelaide and the SUNCs disembarking on to the ship using one of our ladders. We put a ladder in the water, we put a cargo net in the water, we put a Billy Pugh rescue strop in the water, and we had a Nowra strop in the water. So we were trying to bring people on board in four or five different ways. Photo 23 shows the three life rafts and the RHIB alongside, and the rescue progressing in what I would still call a controlled manner, using the cargo net. The ship's preplanned mass embarkation plan was implemented. By 1841G, 223 unauthorised arrivals had been recovered from the water and had safely embarked on the forecastle of HMAS Adelaide where they were dried, clothed and fed. No injuries were sustained by Adelaide or, indeed, any foreign national personnel. Photos 24 to 27 show the processing of the SUNCs on board. Photo 24 is of a small child being rescued from the water and being taken on board. We set up a processing line to deal with the situation. That is a terrible term, but there was a process to go through. You can see that is a young child. The photograph is of the famous A.B. Whittle carrying a baby on board. Photo 25 shows a distressed Iraqi woman-I would estimate that she is middle-aged. She was absolutely exhausted from her ordeal and there she is being comforted by one of her crew. Of note, in the background are the sanitary hygiene arrangements that we built in situ at the time to deal with those people being on board. We built four small toilets. I am probably in contraven- tion of some maritime pollution regulation but I will accept some criticism for that. Photo 26 shows another small child being processed. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 165 CHAIR-I doubt it. As far out as you were in the Timor Sea, I do not think you would be in contravention. Cmdr Banks-I stopped pumping poo over the side well clear of the 12-mile limit. Photo 27 again shows more of the processing and it shows the ship's company in a very controlled and methodical manner going about that process of providing assistance to these people. In case I do not get asked later on, I probably want to emphasise here that the attitude of the ship's company changed significantly from the beginning of this operation to the situation we are now in. There were some comments early on about `Why are we doing this?', some derogatory comments about people from other countries and perhaps some comments which could be construed as being from the White Australia policy, in a general sense. We emphasised to the ship's company that these people were indeed human beings first and that, whilst we could not understand their plight, we had to treat them as refugees. I was particularly proud of that shift in attitude of the ship's company when this situation developed into a humanitarian assistance task-of how they performed a miracle and they went about their business in a very humane and compassionate way and everyone chipped in and lent a helping hand, beyond their specialisation and their training and their category, and just got on with the job. It was some time later, when it had all stabilised, that we noted that nobody had whinged about the fact that they had not had a meal-this is the ship's company-that they had not had a break. They had just got on with it. We were well into darkness when people started to think, `Perhaps we ought to settle down to our own lives.' It was quite a shift in attitude, and one I am particularly proud of-the way people performed. As I said, the performance of the ship's company of Adelaide to make this rescue happen was unparalleled and can best be described by the simple superlative `superb'. It was very much a validation of their training, their commitment and their professionalism. A number of the ship's company acted selflessly and several-seven, to be exact-entered the water to assist and, on occasion, help rescue the unauthorised arrivals. The photographs of A.B. Whittle and Leading Seaman Cook Barker are indicative of that effort, but many more of team Adelaide contributed than just those seen in the two much-publicised images. I have deliberately not presented the photos of A.B. Whittle and Leading Cook Barker tonight. To my personal relief, the unauthorised arrivals' leaders confirmed there was no loss of life and, importantly, that no-one was missing. This also gave the first opportunity to accurately validate the number of unauthorised arrivals embarked in SIEV4 and then embarked in Adelaide and we went to great lengths to validate that number-223. It was with great trepidation that I signed off on that number. I think I did two full checks to make sure that number, 223, was correct. Photos 28 to 29 show a significant change. Photo 28 shows a very happy and smiling family reunited and at peace on the forecastle of Adelaide. I believe that photo was taken on 9 October. As you can see, it is just a little crowded. Photo 29 is taken at the same time, on 9 October. It is a 23-day-old infant wrapped in a towel. The towel was provided by us; the nappy was provided by us; the baby's bottle and the formula were provided by us. I think the lady holding the bottle is a SUNC who is wearing combat coveralls that we provided to all of them. That is the 23-day- old infant that I referred to in the ill-fated Channel 10 comments. CERTAIN MARITIME INCIDENT CMI 166 SENATE-Select Monday, 25 March 2002 The unauthorised arrivals were accommodated on the forecastle deck, an exposed deck of HMAS Adelaide. A makeshift hoochie was rigged to provide shelter and, as I pointed out earlier, flush toilets-in a most liberal definition-were jury-rigged. All the unauthorised arrivals were issued with sleeping bags. Photograph 30 is taken from the bridge on the morning of 9 October. It shows about a third of the SUNCs asleep; the other two-thirds are obscured by the angle and the makeshift awning over the launcher. As you can see, they are all (a) outdoors but (b) in sleeping bags and relatively comfortable under the circumstances. Photograph 31 shows them several hours later settled down for the day, another day spent on board Adelaide-and indeed this may actually be 10 October-as we are preparing to enter Christmas Island to disembark them. CJTF 639 directed Adelaide to remain at sea overnight on 8 October and prepare to effect the transfer of the unauthorised arrivals at 0800G on Tuesday, 9 October to the authorities on Christmas Island. I was given authorised messages on that. In response to a command of CJTF 639 request, I also produced a preliminary investigation report to the key players to address reasons why SIEV4 sank. This directive to disembark the unauthorised arrivals was deferred until 1200G and eventually rescinded until Wednesday, 10 October. In the interim, at 0930G, I gave an unauthorised telephone interview with a Channel 10 staff member that later drew attention to the rescue photographs. Shortly thereafter, and again on 10 and 11 October, I was instructed by Commander JTF 639 and also by the Maritime Commander Australia that I was not to communicate outside the military chain of command on this operation or on any related issues. This took the guise of telephone conversations, general statements and a number of signal messages. New and clear guidance on operational security and public affairs was formally issued by Commander JTF 639 on 12 and 14 October. Australian Federal Police and Australian Customs Service officers from Christmas Island were embarked in the afternoon of 9 October, and preparations and processes to transfer the unauthorised arrivals were developed. On 10 October I was directed to stop releasing digital photographic material. In the early morning of Wednesday, 10 October, I was directed by CJTF 639 to liaise with the Administrator and the Australian Federal Police to discharge the unauthorised arrivals to Christmas Island, and Adelaide secured to the buoy at Flying Fish Cove at about 1400G on Wednesday, 10 October. By 1700G all 223 SUNCs had been transferred to the custody of the Australian Federal Police. Thereafter, Adelaide reconstituted the depleted life raft capacity and I prepared to return to Fleet Base West for our next tasking. In response to questions raised by Adelaide, CJTF 639 and the Maritime Commander Austra- lia about media misrepresentation, and at the direction of CJTF 639 and the Maritime Com- mander, I gathered testimony and passed a series of statements from the ship's company of HMAS Adelaide. On 10 October, I passed 15 statements by secure email. On 10 and 11 October I passed these statements to my bosses. These statements were made by people who had wit- nessed the man overboards or aspects of the man overboards on 7 October. This was done to put to rest false media claims that children had been thrown overboard. I also produced a chronology of events, or narrative, for the interception and boarding phase, including the man overboard incidents. A chronological review of the EOTS video footage, a summary of the distress, tow and the loss at sea of SIEV4 and an initial investigation-a report `Why SIEV4 Sank'-were all provided. EOTS videotapes, with footage of the intercept, the CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 167 boarding, the man overboard, the tow, the sinking and the rescue phases, were dispatched by express courier mail to the Maritime Commander Australia on the ship's return to Fleet Base West on Sunday, 14 October. A copy had earlier been transferred to the Australian Federal Police at Christmas Island, and I cannot recollect whether it was on 9 or 10 October. In summary, by 10 October, and certainly by 11 October, it was clear to the Commanding Officer Adelaide, Commander JTF 639 and the Maritime Commander Australia that no children had been thrown overboard and that no children had been recovered from the water. In my mind, this would never have been an issue and had not been raised by me. No signal messages originating from HMAS Adelaide had ever referred to an incident involving children overboard. To my knowledge, the first written indication of children being put over the side was mentioned in a CJTF 639 general guidance message about future boardings of SIEVs late on 7 October. That statement in itself was accurate and I did not query it. Throughout this operation, to my knowledge, the only contact outside the immediate military chain of command by me was with the Administrator, Christmas Island; the Harbourmaster, Christmas Island; a Channel 10 researcher or reporter, the Australian Federal Police detachment at Christmas Island; the Australian Customs Service detachment at Christmas Island; and a DIMA representative at Christmas Island. The then Minister for Defence, Mr Reith, and the Prime Minister, Mr Howard, visited HMAS Adelaide on 24 October to farewell the ship's company as Adelaide prepared to deploy to the Gulf. Whilst Operation Relex and the Adelaide's role were discussed in very general terms, the details of the SIEV4 incident were not discussed. During the period November to January, whilst on station in the Arabian Gulf, I contributed information by email, DISCON message and occasionally by telephone to the numerous investigations, inquiries and general questions which had arisen from the SIEV4 incident. Whilst I communicated with the Maritime Commander, Admiral Smith, routinely as my operational commander and my administrative authority; with Major General Powell and his staff in late November and early December; with Ms Bryant in December and January; with the Chief of Navy, Vice Admiral Shackleton, on 8 November so 25 December only; with Air Commodore Ekin-Smyth in February 2002 only; and with the Chief of Defence Force, Admiral Barrie, on 17 January and 24 February 2002 to assist with these investigations, at no stage have I communicated with the office of the Minister for Defence nor have I been contacted by any political party or member of any political party or, indeed, any government official. With the exception of an authorised press conference on Wednesday, 13 March 2002, I have had no dealings with the media, tempting as that might have been on occasions. I have zealously adhered to Operation Relex operational security guidance issued by Commander JTF 639 and acknowledged formally by me on 13 October 2001. In closing, I remain extremely proud of the contribution of the ship's company HMAS Ade- laide to the safe and very effective interception and boarding phase but, most importantly, to the courageous rescue of 223 people from the Indian Ocean on 8 October. Their professionalism, spirit and compassion certainly came to the fore when asked to stand tall and do their duty when SIEV4 sank. That there was no loss of life or injury is testament to their training, their skill and their personal efforts as individuals and as team Adelaide. I am also proud of their sustained ability to concentrate on the task at hand and not be distracted when their name, their involve- CERTAIN MARITIME INCIDENT CMI 168 SENATE-Select Monday, 25 March 2002 ment and their reputation were, on many occasions, called into question by the media over the months since SIEV4. Throughout the 24-day Operation Relex patrol and the following 125 days on Operation Slipper deployment, they have done the Navy and Australia proud. That concludes my rather longwinded opening statement, but I did that in the context of allowing the facts, as I see them, to be presented for the first time to be aired publicly and, as my note says, I have a copy of the statement to offer to the committee. CHAIR-Thank you very much, Commander Banks. We have been provided with your statement prior to its conclusion, although I for one chose to listen to your words rather than read them. I can see why you chose to make a statement-it is a very comprehensive and full one indeed, and I thank you for that. I note for the record that you are joined at the table by another officer. I assume he is a legal adviser. Cmdr Banks-Yes, he is. He is Commander Peter Baston, who has been provided by the Navy to provide me with legal and contextual advice. CHAIR-You may be aware that the committee thinks that it is probably not necessary but, if that is your wish, we are happy to comply. Cmdr Banks-If I could add, it was not my requirement, either. Throughout I have tried to convey that if you are telling the truth you do not need assistance from a lawyer, but I was provided advice that in the contextual sense it was prudent to have somebody advise me on where things sat in the chain. CHAIR-Sure. By way of explanation from the committee, people appearing before the committee may ask the committee to bring with them legal advisers and the committee may then approve. In our discussion we did not think it would be necessary-I think that was our general view-but we were of the view that if it should be requested we would comply and grant the request. I think that clears that point up. Senator Bartlett. Senator BARTLETT-Thank you, Chair. Thank you, Commander Banks, for that statement and for hanging around patiently all day to be able to give it. Firstly, before I start, are you aware that the committee has been provided with your response to the scoping questions for Major General Powell's inquiry? Cmdr Banks-I was led to believe that was the case. Senator BARTLETT-That has not been publicly released yet, and I understand there are some sensitivities about it, so I will try to take those into account, but I do want to refer to parts of it at the same time. Firstly, listening to your statement and the various things that you have been asked to do subsequent to this event, predominantly it appears to clarify the confusion about differing understandings of what happened. It seems to me as though you have basically had to put in quite a lot of time, including-from one of the annexures at the back-your last night in Australia before you left the country for however many months you had to spend putting together more material for various people to verify what happened. Given the amount of time you have put into all that, does it surprise you or frustrate you that there still seems to be that level of confusion, right up to the level of the commander of the Defence Force, until CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 169 February or, indeed, even this morning the secretary of the department was still saying that he is not definite that children were not thrown overboard on this occasion? Cmdr Banks-It does surprise me. I believed that the information was there that set the truth out, but equally I have not been surprised that we have gone to this level of inquiry. Back in October I conversed with members of the ship's company before we got back to Fleet Base West saying this would probably go to a joint standing committee because of the gravity of the events. Senator BARTLETT-Attached to your statement there are about five or six pages which are headed `unclassified'. It looks like a dot-point record of various visits-at least it is attached to the statement I have got. Cmdr Banks-It is a statement? Senator BARTLETT-Attached to the copy of the statement you just gave us. Cmdr Banks-I guess pages 29 to 34 are my notes, but I am happy to tender them. Senator BARTLETT-It looks like they have been accidentally, anyway. Cmdr Banks-That is all right. Senator BARTLETT-We can hand them back if you prefer. Cmdr Banks-They are my bullet points if I am asked certain questions about certain dates. CHAIR-Perhaps we should hand them back. Cmdr Banks-As I have said all along, I have no bombshells or surprises or great revelations to make, so there is no harm in those being tendered. I see Senator Collins is smiling. CHAIR-It is just that someone zealously provided us with your bullet points. Cmdr Banks-That is okay. As I said, there is nothing I believe to be contentious or any great revelations to be made. Senator BARTLETT-Even without the bullet points at the end, in your commentary and your statement about the visit of the Prime Minister and the Defence minister before the Adelaide left for the Gulf, nobody actually raised the issue. There were already, from the other evidence you have given, concerns way back on the 9th, 10th and 11th that there were incorrect reports about what had happened. Nobody, either from the Prime Minister's or the Defence minister's or even apparently the crew of the Adelaide's side of things, raised this apparent misunderstanding. Is that the case? CERTAIN MARITIME INCIDENT CMI 170 SENATE-Select Monday, 25 March 2002 Cmdr Banks-There were a number of things happening. After 14 October, Operation Relex was something that was history in the minds of most people on Adelaide. We were concentrating very much on the future. We had been told-it does seem a little dramatic at times-that we were preparing to go into harm's way and that we were deploying to a war zone. That had a tendency to shift people's focus from the past to the future. I had been told that the Prime Minister, the Governor-General, the Maritime Commander, the Chief of Defence Force and the Chief of Navy were all planning to visit Adelaide and farewell us at various times. I do not think it was until probably about 20 October that I was made aware that the Prime Minister and the Minister for Defence were coming to farewell us, and I do not think that was confirmed as an absolute until probably the 22nd. I attended some briefings on 23 October to prepare for that visit-and by `briefings' I mean people talking about his agenda, the arrival times, the security arrangements and how the media were going to be entered onto the base and brought onto the ship. At no stage was I given riding instructions that we were not to discuss SIEV4. We viewed the Prime Minister's visit as very much a farewell for Operation Slipper, and that was the spirit in which we entered into that visit. I gave some instructions to the ship's company about speaking freely and honestly if they had the opportunity to speak to either of our distinguished guests. I did ask them not to concentrate on the contentious issue of conditions of service for our forthcoming deployment. I was disappointed that actually one of the ship's company did ask that question and railroaded the Prime Minister for a few minutes on the subject of access to flights, telephones and things- clearly something that could not be answered by the Prime Minister; in fact it had not been resolved by the department but it was resolved in time. Most people, including me, were a bit flummoxed by the visit of the Prime Minister. A lot of small chitchat took place. Most of it was to do with how people were feeling about the future, not about the past. We spent some time joking about the cricket, it being a subject dear to the Prime Minister's heart. He, in a private address to the ship's company-but it was covered by aspects of the media-spoke about the great job the ship's company had done during Operation Relex to rescue the 223 people and how he expected we would continue that during the next deployment. He then took questions on a media call on the forecastle. He was on board for about-I would have to check my notes-45 minutes or 50 minutes-an hour, according to my notes. It went by fairly quickly and we really were focused on Operation Slipper. I was prepared to answer questions on Operation Relex if they were raised, but they were not raised. Senator BARTLETT-Is it not appropriate for you to raise them yourself, or it was not in the front of your mind because you were focusing on your next engagement? Cmdr Banks-I was certainly very focused on the next deployment. I was very focused on making sure the protocol and everything went right. I was very focused on micromanaging the event to be a successful event. It was a pretty impressive day to have the Prime Minister and Mrs Howard come down to farewell the ship's company. They spent a considerable time just walking around, mingling with the ship's company-one on one, one on two and in small groups-trying to get people to open up to them and talk about how they felt. I thought they achieved that. I was not at every conversation. I did stay on the Prime Minister's tail throughout that, and he spoke about a whole host of things, but it was not a question and answer session about Relex; it was really about how people felt about the future and small talk about the cricket. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 171 Senator BARTLETT-From your statement and other material that has been provided to us, you had obviously already provided statements or information to various people up the chain of command about what had happened, and you were aware that there had been some uncertainty about a `child overboard' incident. Was that still a source of concern to you or was that pretty much someone else's problem by then? Cmdr Banks-I had reported the truth, as I saw it, up the chain. In a disparaging way, I guess, I believed that not all you read in the papers was the truth and that it would not necessarily always be reported in the media. I had no idea what information had been conveyed upwards outside my immediate area. It was not my position to comment on that. Senator BARTLETT-In some of the documentation we have got there is an email you sent to Jenny Bryant on 4 January in relation to her inquiries. At the end of that email you said: What concerns me is not so much what the Brigadier- that is, Brigadier Silverstone- or I said or recollected as ever having said. Rather the subsequent use of that information by other agencies is the prime cause of concern. Can you clarify what you mean by `concern' in terms of the subsequent use of that information by other agencies? Cmdr Banks-Let me have the opportunity to just check what I did say in that report and the context before and after that. I think I was unaware that all these emails had been included in that report. There are lots of surprises today. I have not seen the Bryant report in its entirety. Let me just read this for a second. The subject of the conversation between the brigadier and me is obviously an area of some contention. I do not ever recollect having used the phrase that I have been reported as saying that children were thrown overboard. All the initial parts of the reports and Ms Bryant's investigations and the subsequent emails were largely a `I said, he said, I did not think I said that' argument, and that is probably the context that this was written in. I am trying to read this at the same time as we talk. I certainly spoke to the brigadier on several occasions on that day. I certainly recollect speaking about `man overboards', people being in the water, and I certainly recollect talking about the child being held over. The exact wording that I used I cannot recollect. Senator BARTLETT-I understand that and I would almost be surprised if you could. I heard some talk this morning that was almost poetic about the `fog of war' et cetera. What I take from your statement there at the end of that email correspondence, as you have said, is not so much what you said or he said. Personally, I can very much understand people misreading or mishearing or having different impressions from conversations all the time. So I do not see that is a problem. But what you said next was that the prime issue of concern is the subsequent use of that information by other agencies. It is not so much what you said or he said; it is what other people have done with what you and he have said that seems to have been what you have ex- pressed as the prime issue of concern. I wonder whether I could draw you out a bit more in terms of what types of use gave you concern and the nature of that concern. Cmdr Banks-I am still trying to find the exact words; is it halfway down? CERTAIN MARITIME INCIDENT CMI 172 SENATE-Select Monday, 25 March 2002 Senator BARTLETT-It is the very last paragraph of that email. I am happy to hand it over if it makes it easier. Cmdr Banks-I have got a copy here now. Whether I said that or not, and whether the brigadier recorded it accurately or not, was inconsequential, because by 11 October we had all agreed that there were no children thrown overboard. What annoyed me was that throughout this whole period nobody else called back to ask for the information. I had spoken to Admiral Smith and Brigadier Silverstone in telephone and written guise and it had been, to my recollection, conclusively agreed that no children had been thrown overboard. Whether they took that same conclusion away, I do not know. But in my mind, at 11 October, I was adamant that no children had been thrown overboard. Thereafter-and I would like to stay away from political statements, but perhaps it is inevitable on occasions that I cannot-I then felt, in the ensuing period, that the issue of children being thrown overboard was now a media and political stunt and that if anybody wanted to verify the veracity of the information perhaps I should have been questioned to provide corroboration of what did or did not happen, and that is the tone in which I was writing to Jenny. I did not realise that all these one-on-one emails were going to be there. I guess also to set the context it would be important to say that I am probably defensive by nature and was quite defensive of the ship and what had happened, and that defensive tone is coming out here. I am sure most people would probably say that is an accurate statement of my nature. Senator BARTLETT-I appreciate that. Just building on your comment about people wanting to get the facts of the matter, there was a clear way of being able to do it. I guess that is what, in part, we are doing tonight in going back to the source. I think that is why we have asked you to be one of the first witnesses. You mentioned in your opening statement your conversation or interview with Channel 10, on 9 October I think. Your outlining of that is also provided in the documentation you provided to Major General Powell. Firstly, it seems that you were obviously directed afterwards, `Do not do that again, please,' by a few people, in terms of speaking directly to the media. We have had some evidence this morning, which you may or may not have heard, where we explored the administrative guidelines in relation to media commentary that were in operation at the time. Is it your understanding that that interview you gave breached those guidelines? Cmdr Banks-Yes, it is. It would be correct of me to fall on my sword and say that one area where I have erred was I gave an unauthorised media conversation on 9 October. To put it all into context, I had received media training as part of my preparations to command Adelaide. I was not an authorised spokesperson in the strictest sense of its definition. The brigadier and I had had a conversation on that day, and I think the two of us have a different recollection of that conversation as well. From my view, we were talking about the likely media interest to be shown to Adelaide on the arrival at Christmas Island for the disembarkation of the unauthorised arrivals, which was planned for 8 o'clock or 9 o'clock on the morning of 9 October. The briga- dier was not keen for me to speak to the media, and I took that to be at Christmas Island. I am sure when you speak to him he will say that he was inferring that across the gamut. I misinter- preted that and I clearly got that wrong. But at the time that Channel 10 rang me, they caught me by surprise-I was in the shower. Senator BARTLETT-I know the feeling. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 173 CHAIR-I think that has happened to all of us. Cmdr Banks-The telephone rang. The telephone does not normally ring that much, but during SIEV4 it seemed to ring a bit more often than normal. The call was transferred by the Officer of the Watch on the bridge. He said, `Sir, there is a telephone call for you.' I had the conversation in my towel, looking out the scuttle. I was surprised. When the lady concerned introduced herself I thought she said she was a staff researcher. I cannot swear whether she said she was a staff researcher or a staff reporter. She asked me some very quick questions: who I was, and had we rescued these people from the water. I answered those questions truthfully. She asked me a couple of questions about-I will have to check the statement-more policy related issues, and I then gave her the line that I was not authorised to make comments about those sort of things, but, yes, I had pulled these people out; I had held a child. She asked me about getting photographs of the ship, and I think I told her that they might be available on the Web or through Defence channels. I also mentioned that we had photographs of what we had done. I made an undertaking to provide those photos to her, and we terminated the telephone call. On the sage advice of my XO, who said, `You might want to think twice about the photographs'- we actually had about 10 photographs prepared-we thought twice about it and decided that sending photographs to Channel 10 was probably not a good career move, and we decided not to. CHAIR-You probably caused this journalist to win the Walkley Award by taking a phone call in the first place. Senator BARTLETT-In the statement you provided to Major General Powell, you said that you advised the reporter you were unable to comment other than on the facts, and that you simply provided an outline of what you had done and how many people you had rescued, and indicated there was no injury or loss of life and people were generally in good health. Cmdr Banks-I do not regret what I said in the statement. I regret making the statement. Senator BARTLETT-I appreciate that, but I am just going to the fact that what you did actually say was pretty much-I hesitate to say bland-pure factual information about what happened, how many people were rescued, that nobody had drowned, and everybody was in reasonable health, which does not sound to me like bombshell, earth shattering information. The directives about public or media commentary came into force, I think, in August. You are saying that your interview with Channel 10 contravened those directives. Would your interview have contravened the directives that were enforced prior to August? Would you be able to assess that? Cmdr Banks-I do not recollect ever having read the directive to the detail that I can recall it. I recently read the 18 August directive, and the other day I asked when that directive arrived on the Adelaide. I believe the directive arrived in Adelaide some time in early September. Senator BARTLETT-That is partly why I asked. If you were used to the old one, and this new one had only just arrived, then it may well be a different story. But, just going a bit further in the information you provided to Major General Powell, when you were asked of any subsequent misinterpretation of information, you said you became aware of a misinterpretation about children overboard on viewing the Internet and seeing newspaper headlines. Then you CERTAIN MARITIME INCIDENT CMI 174 SENATE-Select Monday, 25 March 2002 say, `I took no personal action to remedy this, primarily as I was directed not to.' Who directed you not to? Cmdr Banks-We had taken action in discussions with CJTF 639 and the Maritime Commander to clarify that there were no children thrown overboard. That was done by telephone and then by signal. Thereafter, I took no personal action because I had been directed by both officers, verbally and in writing, that it was not my job to do so-that I had presented the information and thereafter it was outside my realm. Senator BARTLETT-Just to clarify that-I am still getting used to all of these various titles and things: that is Brigadier Silverstone? Cmdr Banks-Brigadier Silverstone and Admiral Smith. Senator BARTLETT-And they both said, `Don't do anything to correct that; that is not your job. We'll handle that.' Cmdr Banks-Yes. Senator BARTLETT-They did that in writing and verbally? Cmdr Banks-Correct. Senator BARTLETT-Just flowing on to another bit that asks about any restrictions that were placed on you, you stated there that CJTF 639-which is Brigadier Silverstone; I think I have finally figured that out-directed that the ship's company DRN email be turned off, so that basically all email communications in and out would be prevented, except for very specific lim- ited operational emails. Is that a normal type of situation, that the ship's email be closed down? Cmdr Banks-That is not an easy question to answer with a yes or no answer-and certainly not with the word `normal' invoked in it. Defence provides the email. It is for Defence communications. It has been used for personal communications by everyone. Indeed, it is a great morale booster to be able to email. But in an operational context, where a situation requires that operational security be maintained, the Internet email DRN-Defence Restricted Network, I think, is what it stands for-needs to be controlled so that people do not privately send operationally sensitive emails out of a ship. The policies are generally developed by each ship, and for Operation Relex we followed that policy quite closely. The guidance is pretty broad; the execution was developed locally. It is a matter of just turning a switch off, and, if you want to transmit queuing certain emails, saying, `I want to send those six,' and having somebody send those six. So I was able to send certain emails, but at the time we were so busy we generally did not have many emails to send. Some of those emails were about Relex-setting it up for other ships-some were discussions about a future deployment, but all of the ships' company's emails were turned off to prevent the ship's company being able to email private comments, attach photographs. I do not think they would, but if somebody wanted to send something to Channel 9 they could have done that. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 175 During Operation Slipper, we maintained a similar level of control but in a different way. We gave very clear instructions to the ship's company on what could and could not be communicated, but we kept the email pipeline open. But I did have people review the email traffic to make sure that operational security was not being violated. I made the decision, I think it was on 10 October, to resume normal email flow in the ship because I had a clear conflict between the need to allow people to prepare for the next deployment and the operational security of Relex, because clearly we had now landed the SUNCs-that aspect was over; it was on the front page of most papers-and I made a statement by signal that I was restoring full email connectivity. Senator BARTLETT-Just a little bit further on again in your information that you provided to Major General Powell, in the section on post-action events, there are two bits in there: one, it does not give a date but it says that the ship was visited by the PM, the Minister for Defence, the CN-I think that is the commander of the Navy-and MC Australia, which would be- Cmdr Banks-Admiral Smith. Senator BARTLETT-Is that the visit we were talking about before-the one with the Prime Minister before you headed off to the Gulf? Cmdr Banks-We had several visits. The Prime Minister, Mrs Howard and the former Minister for Defence, Mr Reith, visited on 24 October. The Governor-General, Dr Hollingworth; Chief of Navy, Admiral Shackleton; and the Maritime Commander, Rear Admiral Smith, visited on 8 November. Minister Reith was supposed to visit that day. He only visited Kanimbla. I also had visits at sea from Chief of Navy, Chief of Defence Force and subsequently the Minister for Defence, Senator Hill, and later on, Chief of Navy and the Maritime Commander. Senator BARTLETT-In terms of testing that against what you have said already this eve- ning, to read the sentence completely: `The ship was visited by the PM, Minister for Defence, Commander of the Navy and Maritime Commander Australia and all visitors discussed aspects of the operation to varying degrees.' This is Operation Relex. Earlier on you were saying that the Prime Minister and the Defence Minister on their 24 October visit did not particularly dis- cuss operation Relex at all. Cmdr Banks-My recollections of the conversations are not 100 per cent absolute. Minister Reith, early on when he arrived, shook my hand and made some general remarks about a good job. He had written a letter of praise to the ship. He spoke about a dinner we had had in Darwin in February and asked questions-how do you feel? That was the general thrust of those discussions. Towards the end of the time on board, the Minister for Defence, Mr Reith, wanted to show the Prime Minister our hangar-the aircraft hangar on the ship-to talk about accommodation for unauthorised arrivals. I was caught unaware of that requirement and was a little embarrassed because the hangar was untidy-that would be a polite term. With the short notice of the visit, we had moved lots of things from places and hid them. The hangar was an obvious place to hide some of those things and I was not particularly keen to show the Prime Minister of Australia a CERTAIN MARITIME INCIDENT CMI 176 SENATE-Select Monday, 25 March 2002 dishevelled hangar which contained all the flotsam and jetsam that we could not stow elsewhere-and indeed all the stores we had been trying to embark on the day of his visit. The minister-insisted is the wrong word-implied that it was pretty important the Prime Minister see the hangar. I took the hint. The Prime Minister, the Minister for Defence and I went into the port hangar, which was the lesser of the two evils, and I quickly showed him that the space available in that hangar was clearly insufficient to physically accommodate SUNCs full stop and certainly for any period of time. I interpreted that as being a need for the Minister for Defence to show to the Prime Minister a situation that I was not aware of. But it obviously had something to do with the accommodation of unauthorised arrivals on frigates. Senator BARTLETT-Can I go to material that was provided to PM&C, which was the extract from the ship's log from 6 October to 7 October. A lot of entries caught my eye but one in particular was at 1549 of the second day. Cmdr Banks-Could I take that time again, please? Senator BARTLETT-1549. Cmdr Banks-On 6 October? I have more logs- Senator JACINTA COLLINS-We have two. I do not know how many you have got. Senator FAULKNER-There are no logs in parliament. Senator BARTLETT-Adelaide boarding logs of 6 and 7 October. Cmdr Banks-6 October at 1549? Senator BARTLETT-I am fairly sure it is 1549 of the second day. Cmdr Banks-On the 7th or the 8th? Senator BARTLETT-I think it would be the 7th. It is near the end-about three pages from the end. Cmdr Banks-Okay. Senator BARTLETT-As I understand it, just to give some context, it is talking about the BPO, the boarding party officer. Is that what it stands for? Cmdr Banks-Yes, it does. Senator BARTLETT-It is talking about the BPO investigating the situation on board, observing unauthorised arrivals et cetera, and then at 1549 it says, `The CO'-that is you, I think, the commanding officer-`advised approval of PM of Aust to tow vessel to place to be CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 177 determined'. Is that what it says-that the Prime Minister had to provide the approval to tow? Is it a normal thing for the Prime Minister to involve himself in operational matters like this? Cmdr Banks-I will answer that in two sections. I will answer the statement here, and then I would like to put some context around it. This is third- and fourth-hand information in this log. That originated from a telephone call I believe with Commander JTF 639, who advised me that this was a big deal and that the Prime Minister would make the decision where we would take this vessel. Senator BARTLETT-So decisions being made about your actions in terms of the authority and how you were advised came direct from the Prime Minister in relation to this incident? Cmdr Banks-It did not come direct from the Prime Minister; it came from the Prime Minister down the chain of command. Senator BARTLETT-I did not mean that he rang you up and told you what to do, but he was the one that made the call. Cmdr Banks-That is what I was led to believe and that is what I said earlier in my statement: that the mission was to deal with this in accordance with government policy and that we were to deter the unauthorised arrivals from entering Australia-I am just trying to find the other words-`pending a government determination on the transfer and transportation'. I will set the context of these logs, because I think they will get discussed at some length. What you have there is a summary of a variety of logs. It is a summary that I put together for the Powell and Bryant reports, because they could not have these documents when we were in the Gulf. I think at one stage we thought about safe-hand mailing them, but that takes a long time-weeks-and, as you are aware, with the Heathrow heist, guaranteed safety is not always delivered. It was easier for me to retain the logs and provide an official extract. I sat down and took what I considered to be the relevant information out of the varying logs and put together a narrative of the various things. The official log is the ship's log. It is compiled on the bridge by a junior officer under the supervision of the Officer of the Watch, and it is the ship's official re- cord of major events. It is drawn from the Officer of the Watch notebook, which is exactly that-a notebook. The Officer of the Watch then takes the significant events out of the notebook and puts them into the ship's log. The ship's log would have data on the ship's track-where it is going, what it is doing, the weather, when the ship altered course-so, navigationally, the track of a ship and its major activities could be reconstructed. Senator FAULKNER-Is that always filled in by pen script? Cmdr Banks-It is always by pen script. Some of the traditions continue. It is always done in pencil and it is always signed by the responsible officer. I would love to be able to spend more time to go through the log and teach people how to write it better and correct it, but in this day and age we just run out of time to do some of those things. That is partly why I made that summary, so that the material that may not be relevant was out of it-not so much the ship's log; that was the primary document. There was an ops room narrative which was compiled in the ship's operations room, which is immediately below the bridge- CERTAIN MARITIME INCIDENT CMI 178 SENATE-Select Monday, 25 March 2002 Senator JACINTA COLLINS-What did you call that? Cmdr Banks-The ops room narrative. It was compiled by a junior operator on a headset who was taking snippets of information as he or she hears them and/or as he or she is told by the PWO to make an entry. Again, that is a manuscript record. There was a handover log between the warfare officers of their recollections and key thoughts, and the boarding log. The boarding log was developed for the boarding scenario-we do not normally run that. When we went to boarding stations, one of the junior officers-a midshipman, in this case-grabbed a pencil and recorded key pieces of information, as they heard them, in the log. Senator FAULKNER-Just for background, I am just interested-is that done from the Adelaide? Would that always be done on the Adelaide itself as opposed to by anyone in a RHIB, for example? Cmdr Banks-The RHIB does not have the capacity to do anything. Senator FAULKNER-Exactly-so you have got a junior officer filling that out, contemporaneously with these events, on the deck, basically-or on the bridge, or whatever? Cmdr Banks-Yes. They are hearing information over broadcasts, over the radio and conversational information-and, on occasions, I am saying, `Make an entry'. I did carry a dictaphone with me, which was a voice activated dictaphone. I experimented with it and I found that it was much easier to operate using the voice activated switch off, and the deliberate action of turning it off and on. In the preliminary phase of the boarding I religiously picked it up and said, `Starship Enterprise; Time', and made a comment. As the pace of events picked up I omitted to do that. The last entry on that tape was probably about the time that I got authorisation to conduct the boarding. Senator FAULKNER-Would these only be your entries as commanding officer, effectively, or would that junior officer be able-with either the advice of other, more senior officers, or as a result of what they might see or hear-to record other events? Cmdr Banks-The Officer of the Watch-the officer responsible for the ship-me and the navigator would be key contributors to the information herein. But, also, they would use their eyes and ears and put entries in themselves. They would hear conversations and summarise those and, indeed, if they saw anything, they may record that. Senator FAULKNER-I am sorry, this is neither here nor there, but I am just interested. Would you put anything in after the event-when the RHIB gets back to the Adelaide? Cmdr Banks-No. Senator FAULKNER-So they are all contemporary events, effectively? Cmdr Banks-The word `real time' is a little bit too modern for this but they are, in the true sense, real time. If you read them you will see that they have not been doctored, they are- CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 179 Senator FAULKNER-No, I am not suggesting that-I was just interested in the way they were compiled. Cmdr Banks-Mandraulically! CHAIR-On a note of information, I might just say that I have been advised that copies of these will be available to the committee. Apparently, photocopies of your log have been with the Minister. They have now been cleared, and I understand that they will be made available to the committee. Senator FERGUSON-Chair, I want to ask questions on two responses, but I do not want to interrupt Senator Bartlett. You have still got a number of questions to ask, have you? Senator BARTLETT-Yes. Senator JACINTA COLLINS-Are you still doing the clarification? Senator FERGUSON-It is just that there are a couple of responses that I wanted to pursue. Senator FAULKNER-I am sorry, I may have waylaid Commander Banks here- CHAIR-I suspect that all of us have questions for Commander Banks. Senator BARTLETT-Just clarifying that entry a bit further, it says that the `CO advised approval from PM of Aust to tow vessel to place to be determined.' Was the PM's approval about starting to tow, or was it about where it would go? You basically had to wait for the approval before you could start towing. I presume that the main direction would be away-it probably did not matter where, as long as it was away, in the short term. If it says `to place to be determined', how do you know where to start towing it? Cmdr Banks-The determination, I think, at that stage was whether we were going to tow it to Christmas Island, Cocos Island or back to Indonesia. Senator BARTLETT-But basically the authorisation to tow was one that was provided or required from the Prime Minister or the Prime Minister's office? Cmdr Banks-I was expected to be given guidance about that. I had the authority and the right to make a determination for the safety of life aspect of what I was going to do. Whilst a distress had been indicated, it was not my opinion that this was an immediate distress incident. I sent a team across to view the state of machinery in the SIEV, with a view to seeing whether we could get it all going again and whether we would take the vessel back out to Indonesia, whether we would stay with it or indeed whether I had to tow it. Those determinations were being made by government, but rest assured if I had felt the need at the time to take action based on safety of life at sea issues, I would have taken those actions. A decision to tow the vessel and take it to Christmas Island was subsequently made, and we effected that tow. CERTAIN MARITIME INCIDENT CMI 180 SENATE-Select Monday, 25 March 2002 Senator BARTLETT-Just going to one of your other bits of information you provided very early on in your answers to the scoping questions, there are a few statements that follow on reasonably closely from each other. You outlined, probably in shorthand, what you have outlined in greater detail this evening in your opening statement about the chain of events- Cmdr Banks-Which section of my- Senator BARTLETT-Right at the start of your record of events-the scoping questions in the routine inquiry into Operation Relex. It starts with a record of events. The first question is: I seek your knowledge and comments about the events of 6 - 8 Oct ... what is your knowledge of ... the facts and circumstances leading to the sinking of SIEV IV ... You detailed in a page or two-a briefer version of what you went through this evening-the interception of the vessel, the vessel not heaving to, the firing of warning shots and those sorts of things. At the end of that you say: Whilst the mission had been accomplished- I presume that is the mission to prevent them from entering Australia- and the SIEV deterred from effecting an entry ... I was not comfortable that a win-win situation had been achieved. I think you used these actual words in your opening statement: With the number of women and children onboard ... and the state of repair to the steering and engines, a distress call was expected sooner or later. Just under that, in response to a question about the cause of the sinking of the vessel, you have made what looks like an extract from a report to Brigadier Silverstone. You said: The vessel was only ever marginally seaworthy and was carefully sustained in this condition due to the efforts of the RAN (a priority aim was to keep the SUNCs in the SIEV vice to contemplate an embark in Adelaide). The vessel was unsafe for sea and would have failed any mariner safety compliance inspection ... The SIEV also had no liferafts. ... The vessel was significantly overcrowded and the movements of 223 people (often excited) created a significant momentum in the vessels righting motion. As I read that, you are saying that it was only ever marginally seaworthy; it was really unsafe for sea and would have failed any mariner compliance inspection; and it was significantly overcrowded. You only really kept it marginally seaworthy because of the efforts of your crew. Up above you have stated that a distress call was expected sooner or later. But still at this stage, either your feelings or your orders were that the primary objective was to stop them entering Australia and to try to find a way to turn them back. It seems to me that once a vessel is in that condition, why wait for it to sink? Wouldn't it have been easier-I acknowledge the magnificent efforts of people in rescuing everybody without loss of life-to get them all off before the thing sank rather than wait for it to sink, as it almost inevitably seemed likely to do? How could it be contemplated that anything else could be done with it? It does not sound from those descriptions that it would have been safe to wave it off back to Indonesia, assuming that it was of a mind to. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 181 Cmdr Banks-In the ideal world it would have gone back to Indonesia; that would have been an ideal outcome. Our mission was to deter and deny entry to Australia. If the vessel had left Australia and gone back to Indonesia, that would have been a mission success. The boats are bought and used as a one-way transport arrangement. I do not believe that they get these vessels with a view to having them do return journeys. You could see where the end state was going to be-that we would end up, I believe, in a safety of life situation. But we were not going to get to that stage until we had effected our mission. Our mission was clear: it was to deter these people from making an entry into Australia's contiguous zone and indeed the migration zone. From the photographs, you can see the vessel was clearly overcrowded. It would be a statement of conjecture as to whether it was seaworthy, but I would contend that it was marginal at best in its visual presence that you could see from those photographs. I had a team of people go on board to assess its seaworthiness. We certainly were not doing it from a Lloyds register viewpoint; we were doing it from a safety viewpoint-do we have to play our hand now and rescue these people and declare a mission failure, or do we continue with efforts to achieve a mission success, which was to deter these people from entry to Australia? That team viewed the vessel and made the determination that the vessel was marginally seaworthy. Remember, the vessel had journeyed from Indonesia, it had sustained eight knots, its engines were continuing to run, it had sufficient fuel and it had ample water. Whilst those situations existed, it was a vessel that was free to ply on the seas. My own judgment was that sooner or later this situation was not going to be-I think I used these words-a win-win. We were going to get the vessel out of Australia's contiguous zone, but I felt that we were going to end up with a safety of life at sea situation because very quickly the vessel stopped. We had left the vessel with its engine running and its steering intact, a tenuous jury rig arrangement. The vessel's bilges were not dry, but there was no significant water ingress. We gave them a compass and we gave them clear directions of where to head back to Indonesia. Very shortly after the boarding party had left the vessel and I took station five miles over the horizon, it was very quickly evident that the SIEV had again stopped and they were making no effort to continue north towards Indonesia. When I wrote that situation report about the win- win, I was trying to draw attention to the fact that, yes, I had achieved a mission success-they were outside Australia's contiguous zone-but clearly we were not going to get them back to Indonesia, and I believed that very soon I would be back there involved in a- Senator BARTLETT-I am not wanting you to pass comment. I recognise you were operating under orders. I am just wanting to push this in terms of where that line is drawn about the safety of life at sea situation versus-I do not know whether `primary objective' is the right phrase-your mission aim of preventing entry. When do you make a decision that you are facing a safety of life at sea situation? Those extracts I have just read out about marginally seaworthy, significantly overcrowded, the photos you showed us earlier on-from, I think, a day earlier than that report was written-with the deck already awash- Cmdr Banks-Those people had made that determination themselves. When they departed Indonesia, they had made the determination that the vessel was seaworthy. They embarked on a journey in a vessel at sea over a long distance with food, fuel and water and lifesaving equipment to satisfy their requirements. When I boarded them, we made the determination that, CERTAIN MARITIME INCIDENT CMI 182 SENATE-Select Monday, 25 March 2002 whilst it was not to Australian standards, the vessel was not in an immediate risk of sinking. It had power and it had steering, it had sufficient fuel and it had sufficient water. Senator BARTLETT-You would have been aware, via reports from your boarding party, that there was a three-week-old infant on board-that sort of situation? Cmdr Banks-Yes, I was. Senator BARTLETT-You were saying that at one stage you gave the people on the vessel a compass and it moved away a bit. Did you follow it, or did you stay and observe it from a distance? Cmdr Banks-We gave them the compass because they had thrown their own navigational equipment overboard. I felt it difficult to send a vessel back to Indonesia without some form of navigation equipment onboard. We spent some time searching high and low for a compass that we could afford to give them. We gave them an orienteering compass that somebody actually owned. We did not have a compass that we could give them. We gave them the compass because I felt it was my duty to give them some form of navigational direction. They were escorted to a position just clear of 24 miles north of Christmas Island. We then recovered the boarding party and brought it back to Adelaide. I have some chartlets with the exact positions which I could tender. We let the vessel go right on the boundary of the contiguous zone at 1026G. The vessel, with the combination of its dying engine movements, the wind and whatever current was there, ended up about a further five miles north in the space of three hours. It had predominantly drifted that far. My summary is that, once we took the boarding party from the SIEV, the people on it disabled their engine and their steering and had no intent to continue back to Indonesia, nor did I really expect them to do that. Senator BARTLETT-In terms of your operational obligations, if the vessel had kept going off into the distance towards Indonesia, are you required to follow them at a distance or observe them? Cmdr Banks-No, I was not required to follow them at a distance. I made a judgment that I felt, in this situation, it was prudent for me to remain within the immediate area so that I could provide some surveillance. The distance was chosen because it would be difficult for them to see me. A warship on the horizon in grey is quite hard to see, but with radar and EOTS I would be able to see them. I felt comfortable that I was meeting my broader obligation, as a humanitarian effort and under the safety of life at sea convention, to remain in their immediate area, but I was also achieving the operational aim, which was to let them clear the contiguous zone and to return to my maritime surveillance and response mission-an each-way bet. Senator BARTLETT-Once they were continuing on-assuming that they did not disable their engines or the engines did not stop working and that they kept going- Cmdr Banks-They were on the high seas and they were responsible for their own navigation and destination. CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 183 Senator BARTLETT-With the specifics that you were talking about as to where it was intercepted-there are a lot of different terms like the contiguous zone, territorial waters and those sorts of things which I keep getting mixed up; it is actually relevant to a separate issue of a communication from the United Nations High Commissioner for Refugees to the immigration department, which I will not ask you about-was the vessel intercepted or did it actually enter Australian territorial waters at some stage? Cmdr Banks-The vessel was intercepted about 100 miles north of Christmas Island. Adelaide maintained a shadow role over the horizon. We sent a long-range RHIB in to deliver the DIMA warning notices. That was done in a way trying not to reveal that there was a warship nearby. The tactics were to try to prevent these people generating a safety of life situation in the middle of the ocean and saying, `Here's the Australian Navy; we'll all jump overboard,' by our playing a cool hand and staying clear but, at the same time, advising them that, if it were their intent to go to Australia, this is what would happen. We did that by launching the RHIB from one direction and having the RHIB approach from another direction and at no stage showing Adelaide in the visual horizon of the SIEV and the SUNCs. I did that with my nav lights off, staying about nine or 10 miles clear. We continued to shadow the SIEV in towards Australia- again, on the high seas, outside Australian jurisdiction-and then made efforts to deliver the second set of warnings when it was evident to us that the vessel was indeed bound for Australia, Christmas Island. After the vessel had entered Australian jurisdiction by crossing into the contiguous zone, I sought approval to board the vessel inside the contiguous zone. We effected that boarding just before it entered Australian territorial waters. Senator BARTLETT-Did the boat at any stage enter Australian territorial waters? Cmdr Banks-I would have to go back and reconstruct the whole lot. One of the reports was that we were a mile or two inside Australian territory; the other was that we were a mile or two outside it. Senator BARTLETT-Could you take that on notice? Cmdr Banks-I can take it on notice, but at no stage did the vessel enter the Australian migration zone. Senator BARTLETT-If you could specify about the territorial waters, that would be appreciated. One of the questions that was asked by Major General Powell concerned the cause of the sinking. You went through some of the statements I read out before about the state of the boat and, at the conclusion of that, you said that the balance of probabilities suggests that the vessel began to sink due to its inherent unseaworthiness, exacerbated by a sudden ingress of water, the cause of which cannot be reliably ascertained, and that the natural panic in the unauthorised arrivals generated movement which basically stuffed the whole show, in shorthand. Just to confirm that: your assessment is that, whilst there were obviously some efforts to disable the steering capacity and other aspects of the vessel, the reason it sank, on the balance of probabilities, was its inherent unseaworthiness, exacerbated by the sudden ingress of water? Cmdr Banks-You can see from the photographs that the vessel had water flowing out of it at an early stage. There were reports that the vessel had water in the bilges. The vessel's pumps, CERTAIN MARITIME INCIDENT CMI 184 SENATE-Select Monday, 25 March 2002 which were functioning when we first boarded, stopped working. One was for fuel-and we got some more fuel for them at one stage. The other was because the pumps were run dry. We provided pumps to assist them. The vessel was a wooden-hulled vessel; it was teak. Clearly, it had great buoyancy capabilities because, after the 8 October sinking, it remained partially afloat for at least 24 to 36 hours. So it had a reasonable flotation capability. Its engines were functioning when we first boarded it, and it maintained that good speed towards Australia. But, in the period after we boarded it and whilst we were on board, at various stages the engines conked out. We assessed that that was due to them being involved in what we called acts of sabotage. The boarding party had significant difficulty moving around the boat to obtain access to all the areas of the boat. The steering compartment was actually underneath the toilet-rest assured that the boarding party were not too keen to be operating in that area. There was a lot of smoke in the boat-the diesel's exhausts generated smoke-and they were uncomfortable operating in those areas. We believe that at certain stages the SUNCs deliberately lit more fires. All of those things made the seaworthiness of the boat a little more tenuous on each occasion. When we departed the SIEV at 1030, it was the opinion of the boarding officers that the vessel was still seaworthy. It had an engine running, the water in the bilges was not at a level of concern, and the steering had been jury-rigged to be functional again. The vessel was still seaworthy. Given the vessel sank 24 hours later, you could conjecture that the vessel's capacity to remain seaworthy abated with time. I still contend that it was on a one-way journey. The pumps which were keeping the bilges at a sustained or manageable level no longer worked. The portable pump that we had got functioning on that vessel by the provision of petrol from Christmas Is- land had stopped working. The portable pump that we had provided had stopped working, and we put the peri-jet eductor in. We believed that we were getting ahead of the water and were actually reducing the ingress of water. The vessel, we contend, was continuing to be sabotaged, and at some stage the combination of the factors of the water ingress-and we do not know why the water was ingressing at a greater rate; it may have simply been that when the water got in other items in the boat started to float and perhaps punctured the hull and created an opportunity for more water to ingress- and the movement of the SUNCs on board caused the vessel to dip and, in the sea state, to become swamped forward. Once that swamping motion took place, combined with the increased panic of 223 people who were now generally fearful, the vessel began to founder. At that stage I made the decision it was time to effect a safety of life at sea rescue. Senator BARTLETT-Obviously, it is a very difficult task to balance all those different obligations-and I do not envy you-but I presume it would be more difficult for your crew to have done what they eventually had to do, which was to try to get everybody out of the water in a sinking boat situation, than to have been able to transfer them off the boat before it got into that situation. Cmdr Banks-Transferring the people to Adelaide would have been a mission failure. The mission was to deter and deny their access to Australia. Taking them on board Adelaide in other than a safety of life situation would have been a mission failure. That is why when they jumped overboard I went to lengths to ensure that they were returned from the water to the SIEV and not brought to Adelaide, because I figured that, once we allowed some on board Adelaide, I CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 185 would not get any of them off Adelaide and I would be inviting at that stage what we thought were 208 on board. Senator BARTLETT-I appreciate that and I appreciate the primary mission requirement in that sense. Cmdr Banks-To continue, I was not believing that the vessel was about to sink. We had controlled the situation with the use of the peri-jet eductor. We stopped the tow, passed the peri- jet eductor, established pumping and recommenced the tow. In the late afternoon the boarding officer expressed concern about the water ingress and, to allay his concern and satisfy me that we had control of the situation and I was getting genuine information from somebody who was not necessarily excited by the event, I had the Executive Officer and the Marine Engineering Officer from Adelaide go across in the RHIB and make their professional assessment of the seaworthiness of the vessel and whether we were at a SOLAS situation yet. They made the assessment that no, we were not, we had control of it and the water levels in the bilges were beginning to fall, which corroborated the fact that we had the situation contained. That situation very quickly degenerated. Senator JACINTA COLLINS-Commander, was that the stage at which Brigadier Silver- stone was encouraging you to go on the SIEV? Cmdr Banks-I have no recollection of Brigadier Silverstone ever, ever suggesting that I go on the SIEV. I do not think he would have ever made that suggestion. Senator JACINTA COLLINS-I will address this tomorrow when I go to his statement, but I just wanted to give you the chance at this stage to comment. Senator BARTLETT-So what you have here is that, as reported in discussions with Brigadier Silverstone and in signal messages, the SIEV was eventually assessed as a vessel in distress and the decision was made to tow the SIEV to Christmas Island to await GOAS determinations. Sorry, what does `GOAS' stand for? Cmdr Banks-Government of Australia. Senator BARTLETT-At that stage, once you made the decision to tow it to Christmas Island, didn't that constitute a mission failure in your terms? Cmdr Banks-We had no longer deterred and denied; we were now containing, which was the other part of the mission. Senator BARTLETT-So, at that stage, you were saying, `Okay, we are going to take them to Christmas Island anyway, when the vessel is in that situation'-I am sure you understand what I am driving at: I am not questioning your judgment, but it seems to me that it would have been much better for the safety of your crew and everybody concerned if people had been taken on board before it got to the stage that it got to. Certainly I am not questioning people's assessment about the seaworthiness, or whatever, at various stages. But, once the decision was made to tow it to Christmas Island- CERTAIN MARITIME INCIDENT CMI 186 SENATE-Select Monday, 25 March 2002 Cmdr Banks-That decision was made at 1.30 on 7 October. We intercepted it at 1.30. At about 1700 we commenced towing, and we towed the vessel for 24 hours. At 1600 or 1630, there were concerns about the vessel's ability to prevent the ingress of water, or our pump's ability to prevent the ingress of water. I sent people across to make a second evaluation of that. That situation quickly deteriorated. By 1700 on 8 October, the vessel began to founder. Those actions were nearly simultaneous. I was asking the question, `Do I need to get them off now, or do we still have the situation contained?' because I needed to stay focused on the primary mission, which was not to get them on board Adelaide. Once we got them on board Adelaide, we entered the third phase of the mission, which was now where we were going to transport them to. Senator BARTLETT-I have got your statement, so I can re-read it, but I want to confirm your evidence that the unauthorised arrivals expressed concern for the wellbeing of the infant and young children in amongst all this when they were being transferred to the Adelaide et cetera. Cmdr Banks-Are you drawing on that email from the people on Manus Island? Senator BARTLETT-I am actually drawing on what you said, I think in your opening statement, when you were showing the photos and the process of people coming on board. Cmdr Banks-Early on, on the night of 6 October and the morning of 7 October, they showed us an infant and some children on board. Senator BARTLETT-No, I think it was when the infant was being transferred to the Adelaide. Cmdr Banks-From the SIEV when it was sinking? Senator BARTLETT-Yes. Cmdr Banks-We were aware that infants were on board. Senator BARTLETT-They were specifically handing over the infant to make sure it was safe. Cmdr Banks-They passed the child to us, into the RHIB. Probably the first person off the SIEV when it began to founder was that infant. Senator BARTLETT-And that was, in part, because the unauthorised arrivals, you said, passed it forward or made sure that the infant was- Cmdr Banks-At that stage, we had made a determination that the vessel was now foundering and that we were in a safety of life situation, and the first person off was a young child. Senator BARTLETT-In your general- CERTAIN MARITIME INCIDENT Monday, 25 March 2002 SENATE-Select CMI 187 CHAIR-We might make this the last question, because we do want to finish on time if we can and there are a couple of things we need to settle before we go. Senator BARTLETT-You said at the start that you have had 25 years service in the Navy. Is this situation unparalleled, in your experience? Cmdr Banks-Absolutely-and long may that situation continue. I believe that probably the worst, or the most feared, order I would ever expect to give is, `Launch the life rafts.' It was a moment that will stay in my mind forever. It was not a difficult decision to make; it was clearly evident that I had to make that decision. But the gravity of those orders was significant and will stay in my mind forever. I used the phrase `a controlled abandonment'. I need to emphasise that: it was largely a controlled event. But it did happen very quickly. In hindsight, I do not think I would have expected that vessel to have foundered as quickly as it did. But, once the decision was made that this vessel was now foundering-and it did go down very quickly-it was never, ever dangerous. The vessel had a significant inherent buoyancy from its teak construction and the amount of air in it, and the fact was that it had survived this journey already. The people realised the situation and, despite their wailing, crying and general concern, be- haved in a relatively ordered way and took clear direction from the boarding party, who gave very clear guidance to all the people to inflate their life jackets and enter the water. The previous day people had jumped in the water. On this occasion they entered the water in a much more controlled manner. Most had inflated their life jackets. The boarding party waited for some time before they inflated their life jackets, and then they entered the water themselves. I backed Adelaide down from a position ahead of the vessel to provide a lee and to recover the tow out of the water at the same time. My aim was to get as close to the SIEV as possible to provide them with a morale factor of, `Here I am; I am ready to rescue you,' to provide a physical lee, a shelter, for them, and to make the transit distance as short as possible. I had to be careful, also, that I did not drift on to the SIEV and cause more damage due to the different drift rates. We put the life rafts in the water one by one, and ended up putting all six in the water. There was some concern of how we were going to get the life rafts from the ship. Normally, life rafts are tethered to the ship. You enter yourselves into the life raft and then you undo the tether. Getting the life rafts elsewhere was a new experience, and we used the RHIBs to assist do that. Indeed, that is why some of the people entered the water: to assist in the transfer of the life raft from Adelaide to the RHIB to get it across. Those people who were able to enter the life rafts did so in a reasonably orderly fashion and stayed in the life rafts until they came back to Adelaide. Those in the water either swam, floated or paddled their way towards Adelaide or were assisted to Adelaide either by the RHIB or by the people in the water and entered Adelaide from the water to our 01 deck in a relatively controlled manner. The whole event-I would have to check my log-took over an hour and a bit. If I could have picked a time to have said, `I think this is going to happen: please take your luggage off CERTAIN MARITIME INCIDENT CMI 188 SENATE-Select Monday, 25 March 2002 and embark in Adelaide,' perhaps I would have done that. I was not able to predict that time, nor do I think I would have been able to predict that time, nor did I expect that the vessel would founder so quickly. CHAIR-I think that might be enough for one day. We will resume with you in the morning, Commander. Cmdr Banks-I am happy to continue. CHAIR-I know, but I am not sure after a full day that the committee is. We notice your ability to volunteer. Senator MASON-He is just getting warmed up. CHAIR-I also understand from some advice tendered to me from behind you during your evidence that you have no problem about returning to base tomorrow. If we take you in the morning, your plane bookings et cetera are fine. Cmdr Banks-Wednesday. CHAIR-You are more precinct than we are. This hearing stands adjourned till 9 a.m. Committee adjourned at 10.33 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Official Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident TUESDAY, 26 MARCH 2002 CANBERRA BY AUTHORITY OF THE SENATE INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Faulkner, Ferguson and Mason. Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BANKS, Commander Norman, Royal Australian Navy........................................................................... 191 Tuesday, 26 March 2002 SENATE-Select CMI 191 Committee met at 9.10 a.m. BANKS, Commander Norman, Royal Australian Navy CHAIR-I call the committee to order. I have a short statement that is remarkably similar to the statement that I read yesterday. I am debating in my mind whether it is a bit rich to read the same words two days in a row. I have a truncated version, but I think it is necessary to go over some of the main points. Today's hearing is open to the public. This could change, of course, if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of the proceedings. We have not proceeded as far as we had originally hoped with our proposed list of witnesses and we apologise for the inconvenience that that has created. The committee decided at the close of business last night to rearrange today's program to free up those witnesses who needed to return interstate. A revised schedule has been circulated. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege and the Senate will use its powers to protect witnesses against any adverse consequences arising from the giving of evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as the chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, witnesses in that category may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. When witnesses are first called upon to answer a question, they should state clearly their name and position. Witnesses should be asked to make an oath or affirmation. The committee has agreed to the request from certain witnesses that they be accompanied by counsel. For the convenience of all, the committee has agreed that counsel may be seated at the witness table with the witness. However, counsel has no right to address the committee, nor will the committee address questions to counsel. That discharges the opening preliminaries. I think you are in continuance, Commander Banks, and Senator Bartlett has the floor since there are no objections. Senator BARTLETT-To give space to others, I have one final question at this stage. There was a line of argument or questioning put yesterday to the previous witness, a commander of the Navy, about the impact on the morale, spirits, wellbeing or bonhomie of the crew of the Adelaide-and other ships for that matter-having to witness the rare incidences of children being held up. Could you comment on the impact on the crew in having to confront the whole situation: the full picture of women, children, infants and desperate people in overcrowded CERTAIN MARITIME INCIDENT CMI 192 SENATE-Select Tuesday, 26 March 2002 boats that are not in the best of condition and having to basically block them out and send them back? In your evidence yesterday, you spoke a bit about the range of views of some of your crew and how that changed after the rescue incident. The level of satisfaction of Navy personnel and crew with having to do this task has been a source of comment from time to time. Whilst I recognise that Navy crew will do as they are commanded, from your point of view as a commander, there is still an issue about their level of satisfaction or happiness with the tasks that have been given. Could you comment on the attitude, views or impact on the crew of having to do this fairly unprecedented activity? Cmdr Banks-Sir, I can only speak on the Adelaide incident, SIEV4. I have no knowledge of any of the other SIEV incidents, or other RAN participation in Operation Relex. I could really only comment on my impression of what I saw of Adelaide's morale and how that im- pacted on other people. Yesterday I said that I observed a change in the attitude of some people who were not keen on this type of activity, as their own personal views on immigration indi- cated that encouraging people to come to Australia was not in their mind-set as being a good thing but that they had quickly changed when they realised that this was a task that we were di- rected to do and that we are instruments of government policy, and that I was also particularly pleased with how, when this turned into a humanitarian issue, they quickly changed any inher- ent attitudes they had, rallied to the point and became very actively involved in looking after the unfortunate SUNCs, and at how a number of people went around and fed the people on the forecastle and became involved in giving assistance to them and looking after the children. There was almost a minor babysitting club developing, involving men and women. When the announcement was made that we would be landing the SUNCs to Christmas Island, they cheered and clapped and were quite excited by it. As they departed Adelaide to go into the barges to be ferried to Christmas Island, they wanted to shake hands and say thanks. I do not believe that Adelaide's morale was impacted by the events that we experienced. If we were asked to sustain that effort for a lot longer, it may have had an impact, but during the periods that we were involved I do not see or recollect that it had an impact. Throughout the period afterwards, when we deployed overseas, most people were focused solely on the task at hand. There was obvious disappointment at media commentary. We were only seeing snippets and vignettes of domestic information, but we were able to put their concern to rest with addresses to the ship's company that we had done nothing wrong, that we should be proud of the action to rescue these people, that there were particular slants on the issue that we had no control over and that I and the Navy remained proud of them. As far as I am concerned, their morale was extremely high throughout Operation Relex and Operation Slipper. Senator FERGUSON-Mr Chairman, I think Senator Bartlett is referring to a question I asked yesterday of the commander, and I think he has misrepresented the question that I actually asked, which had nothing to do with the bonhomie- CHAIR-I actually think he asked his own question. Senator JACINTA COLLINS-He asked his own question. Senator FERGUSON-But also he said questions were asked yesterday about bonhomies of crews-which was certainly never mentioned, as far as I know. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 193 CHAIR-I see. I do not know the distinction, but obviously you see one. I actually thought Commander Banks introduced the word `bonhomie' into this discussion. Senator FERGUSON-Certainly we did not in questioning him. The question that I put to the other people was in fact: is it any less traumatic on the sailors of any vessel to have threats of children thrown overboard than to have children actually being thrown overboard, because it has been suggested that it is more traumatic. CHAIR-I think we will come to your question in a minute, Senator Ferguson. Senator FERGUSON-I understand, but I think it has been suggested that it is more traumatic to see people in the act of threatening to throw children overboard than to see them actually throwing them overboard. CHAIR-That is a question you may ask when the call comes to you. Senator FERGUSON-I will. Senator BARTLETT-I am quite happy for Senator Ferguson to correct any unintended misrepresentation. My question was more to whether there were traumatic consequences for the crew. I would have thought the trauma lag experience-which I am sure they can handle but, nonetheless, best not to have it-would relate to the whole experience of having to blockade a ship full of infants, women and children. These people were obviously upset and agitated, according to your evidence. You have spoken about how they felt after the rescue but, before that time, was there unhappiness or stress-to use the word that has been used-in having to perform that task? Cmdr Banks-As I said, I can only comment on my impression of what I gauged Adelaide ship's company to be feeling or showing. At the stage where we were involved in the man overboard incidents, there was obvious concern that this was not good. There were comments about how wrong it was that people were threatening and doing this. My point about the change in attitude was that on 8 October when we rescued these people, people very quickly shifted their attitudes and opinions to, `Now we are looking after these people,' and there was a clear shift. Senator BARTLETT-What do you put that down to? Was it just the fact that they engaged them on a personal level, they were sharing space and saw them as human beings? Cmdr Banks-No, they were genuinely concerned that these people had entered the water from a boat that was sinking and had to be pulled from the water in a distressed state. There is a human compassion in most people, and certainly in Adelaide ship's company, to extend the hand of friendship to people in distress or in need. I was personally quite pleased how the ship's company responded to that. Senator BARTLETT-In the description that you gave when the asylum seekers were taken off the Adelaide and on to Christmas Island, you talked about them expressing thanks and generally giving a positive response to the crew. CERTAIN MARITIME INCIDENT CMI 194 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-Very much so. Senator BARTLETT-They must have switched from baby killing monsters to nice, kind people overnight, from the sounds of it. That is hardly a comment that should be recorded. Senator FERGUSON-Nobody has ever suggested that the refugees were baby killing monsters. Nobody has even suggested that. Senator JACINTA COLLINS-A headline today suggested that they tried to kill a child. Senator FERGUSON-That is true. That is in the report. Senator JACINTA COLLINS-It is not in the report. Senator FERGUSON-Just a minute. Senator JACINTA COLLINS-No, it is not in the report. CHAIR-The attempted strangle I think is in the report. Senator BARTLETT-So the crew certainly did not perceive that these- CHAIR-The standing of the report is that it did not matter, of course. Senator BARTLETT-people were of bad character when they were being transferred from the Adelaide? There were no people saying, `Good riddance. We don't want people like that around us any more' and that sort of thing? Cmdr Banks-It is difficult for me to express the attitudes of 196 people in one straight statement. My own view, and the view that I surmised of other people, is that at no stage was there any great concern. For a short period on 7 October with the jumping overboard issues, people were concerned about what was happening. For a short period after that, people were disappointed and confused. Once we entered into the tow arrangement, people's attitude shifted to: we are now providing some assistance to these people. We provided food, medical aid and water, and we tried to repair their vessel. People settled into that. Most people were concerned about the length that this would have to be sustained. At the same time, the decision and the announcement that we would be deploying elsewhere was coming out and people were becoming very focused on that-when we were going to get back to prepare for that and have some time with families before we redeployed. Once the rescue took place, the ship's company rallied very much to providing compassion. That was evident. It was appreciated, and when they departed at Christmas Island, there was cheering, clapping and handshaking. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 195 The comment about bonhomie was earlier when I spoke about the attitude of the SUNCs changing from when we were steering the vessel north out of the contiguous zone to when we took it under tow and were clearly taking it back towards Christmas Island. My perception is that they viewed that as having a win. We were now providing the assistance that they were ex- pecting, and we were obviously taking them back towards Australia where they could be proc- essed. Senator BARTLETT-Finally, would you confirm the total number of people on board the SIEV4? Was it 223? Cmdr Banks-There were 223 people on board. Senator BARTLETT-From all the witness statements there was one person who was seen at one stage to hold a child over the edge. Cmdr Banks-There were a number of reports made throughout the period. I only recollect seeing at about six o'clock one adult Iraqi male holding one child, estimated to be about five years old, putting her in a life jacket and holding her over the starboard side. Senator BARTLETT-One out of 223? Cmdr Banks-One out of 223. Senator BARTLETT-Thank you. That will do for the moment. Senator FAULKNER-Let me just ask you at the outset about the nature of the tasking for Operation Relex, if or how that might differ from other operations and if there was anything unique about it that might assist the committee as it looks at these issues that we have before us. Cmdr Banks-The only area of difference that I was able to perceive was that generally, and certainly in the past to my knowledge, the illegal immigration interception patrols had only ever been conducted by the Fremantle class patrol boats. It was different to see major fleet units- major warships-being tasked in that role, although that role was clearly within our capability. Senator FAULKNER-You yourself had some earlier interaction with one of the Prime Minister's task forces, I think. Correct me if I am wrong but that was my understanding. Would you just briefly outline-this is obviously prior to Operation Relex-the background that you had and if that was useful in any way? Cmdr Banks-That background was in 1999-2000, in the early stages when policies were being developed. Those things certainly stayed in my mind. I was aware of the sensitivity of the task. I was seeing discussions that we had had in 1999-2000 come to fruition: the deployment of naval units to the north to intercept and deter the arrival of large numbers of SIEVs with large numbers of potential illegal immigrants on board. That had transitioned from the discussions in late 1999-early 2000 to where we were in late 2001, and it was becoming a reality. CERTAIN MARITIME INCIDENT CMI 196 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-What is the interface between tasking and rules of engagement in a technical sense, if you like, or are these just very separate issues as you look at them? Cmdr Banks-They are related in that the rules of engagement are developed to suit the task. Senator FAULKNER-Appreciating that, was there anything particularly unique about the rules of engagement for Operation Relex that it might be useful for the committee to understand, without drawing too much on this distinction? I am really only asking you a question to try to understand a bit more of the general background. Cmdr Banks-I do not believe that there was anything different. I believe that the rules of engagement were very clear and the task was very clear. The rules of engagement were very clear and the commander's intent was very clear. Senator FAULKNER-Senator Bartlett was asking you some questions last night that I listened to about directives from government. Any such orders, directives or instructions- `instructions' might be a better word to use-as I understand it would always come through the commander of the joint task force. Is that right? Cmdr Banks-Yes, sir, that is correct. When Senator Bartlett was asking questions last night about the Prime Minister's involvement, I was aware that he was involved, but his directions were being conveyed throughout down the military chain, and I was only taking direction from Commander JTF 639 and on occasion from the Maritime Commander in regard to other areas. Senator FAULKNER-As far as you are aware, in your experience, if there are orders or instructions that are initiated at the level of government, it would be passed down the chain of command in that way via CJTF. That is normal or standard operating procedure, I would have thought. You have said also possibly Maritime Command, but either of those options would be the way you would expect this to work, and that is the way it worked. Is that right? Cmdr Banks-Yes. From CJTF 639 for Operation Relex and for any other tasking I had from the Maritime Commander. Senator FAULKNER-And you can say to us that there are certainly no exceptions to that. Cmdr Banks-To my knowledge there are no exceptions to that. Senator FAULKNER-I do not know that this was the case with Adelaide so in a sense I suppose I am asking you a question that may or may not have applied to Adelaide's involvement in Operation Relex, but what happens in a situation if you have on board Defence personnel from another service-which certainly was the case with some vessels involved in Operation Relex? Are you able to shed any light on that in terms of command structures from the perspective of a commander of a naval ship? Cmdr Banks-There were no personnel other than naval personnel embarked on HMAS Adelaide. I believe there was one Army corporal who was embarked as part of a ship's flight- CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 197 one of the maintenance crew. He was on exchange service from the Army to the Navy for the maintenance of aircraft. He falls under our full command. Senator FAULKNER-Sure, but are you able to more generally outline, for the benefit of the committee, what would occur if, let's say, some Army personnel were embarked on a naval ship involved in an operation? Would there be a separate command structure, or are you unable to comment because you have not faced that situation? Cmdr Banks-I am really unable to comment on that, but, as far as I am aware, I would retain full command. All people on Adelaide are under my command, and if that were to be changed there would be an administrative instruction, a command and control document, that would clarify that situation. Senator FAULKNER-We might progress that with some of the other vessels because, as you know, the terms of reference of the committee have been broadened. I do not want to get bogged down in that now, but thanks for that information. One thing that does appear to have been unique about Operation Relex was the communication strategy. Is that a fair statement, do you think? Cmdr Banks-Which aspect of the communication strategy? Senator FAULKNER-Is it fair to say that there was a specific communication strategy adopted for Operation Relex? Cmdr Banks-Could you be more specific about what you mean by communication? Are we talking about equipment? Are we talking about communications frequency plans or communicating information to other interlocutors? Senator FAULKNER-I am specifically talking about communications with the media. Cmdr Banks-There was clear guidance issued. There was a draft public affairs plan issued. Senator FAULKNER-I use the term `communication strategy'. If we talk about the draft public affairs plan, how do you technically describe that: as a media plan? Is that the best way of describing it? Cmdr Banks-The public affairs plan is the term that was used. Senator FAULKNER-Do you know when Adelaide became aware of the public affairs plan? Cmdr Banks-When we inchopped to the Operation Relex task we received a number of signals, formal Defence messages, which were the instructions for Operation Relex. As I said yesterday, we were not assigned to Relex to begin with; we were rotated into it at short notice. Those were generally rebroadcast to Adelaide. I cannot recollect the number there were but probably 20 or 30 formal signal messages, one of which was the public affairs plan. I would have been aware of that on or about 18 or 19 September. CERTAIN MARITIME INCIDENT CMI 198 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-So your point yesterday about, if you like, the phone conversation that you had with the Channel 10 researcher/reporter, that should not have occurred if the public affairs plan had been strictly adhered to. I think that was the point of your comments yesterday, but for clarification's sake- Cmdr Banks-The point is that I made an error in judgment. I should not have spoken to Channel 10. It was clearly contrary to the guidance. Senator FAULKNER-And that guidance also comes from CJTF 639? Cmdr Banks-I do not recollect that coming from CJTF 639. I believe there were two messages. One was a draft public affairs plan which had been issued either by the former CJTF or indeed by-I have not got a copy in front of me-probably an agency in Canberra. There was a second signal from the Maritime Commander-I have not got copies with me; I think it was later in September-which made it clear that we were not to make comments. I made an error; I forgot that information. Senator FAULKNER-I was just wondering where those instructions emanated from. It just was not clear to me. That is helpful. I might actually come back to that a little later. Could I ask you about the comment on page 15 of your opening statement, the bottom dot point, the last line about `062300ZOCT 01'. Listening carefully to Admiral Shackleton yesterday, I was trying to understand the dates and times et cetera. I think I have got that on board. If you go over the page to page 16, it says: Sitrep message #9 and BOARDING Log did not mention child held over the side incident. I viewed this incident as an inconsequential event in the overall scheme of things. Just for the record, could you explain to me the timing of sit rep message #9? I think you have explained a little earlier, but just so I am clear. Cmdr Banks-The time 062300 zulu refers to zulu time which is universal time constant. If you add seven to that you would have the time zone at Christmas Island which would have made that 0600 in the morning at Christmas Island on 7 October. I think that was 0830 in Darwin and 01000 in Sydney. Senator FAULKNER-I appreciate this does not mention the crucial point; this does not mention a child being held over the side. It is not clear to me whether that particular situation report has been made available to this committee or not. I do not know that you will necessarily be able to help us with that but this goes, I assume, to CJTF 639. Is that where that particular message would go? Cmdr Banks-I do not know whether these documents have been made available to the committee. I believe extracts were made available to Ms Bryant without necessarily what I would call the top and tail information of the date, time group and the where addressees. Senator FAULKNER-We have an extract, I think. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 199 Cmdr Banks-It was made available to a number of addressees, including Commander JTF 639, and a number of other agencies. I am happy to list what those agencies were. Senator FAULKNER-Yes, that might be useful for the record. Cmdr Banks-They were addressed to Commander JTF 639, information to Headquarters NORCOM where he worked, to the task group 639.0, which was all the ships that were involved in Operation Relex, to the task unit 646.2.2, which was the air detachment in support of Operation Relex, to Maritime Headquarters in Sydney, to Coastwatch Canberra-the civil customs arm-to the Australian Theatre Joint Intelligence Centre, to Headquarters Australian Theatre in Sydney, to Defence Intelligence Organisation in Canberra, and to the Defence Signals Directorate in Canberra. Senator FAULKNER-This message, as we know, says that `14 SUNCs have jumped or have been thrown overboard. All SUNCs recovered by RHIB and returned to SIEV. Second boarding party of nine inserted.' What I do not quite understand is why this formal communication, given its time in the chain of command, did not get more emphasis than what has now become a disputed phone call-that is, the phone call is not disputed but the contents of a phone call that are disputed between yourself and Brigadier Silverstone. This seems to be the first mention of this issue of SUNCs in the water, if you like, that I have been able to locate. I do not know if that is correct but I think it is correct. Cmdr Banks-That is correct, and that was my comment in the Bryant report, because I could not quite understand why so much weight had been given to a telephone conversation that was in dispute when very shortly thereafter, or almost at the same time, the written summary makes no reference to that, nor do any subsequent written summaries. I do not want to dispute the telephone call, but the written record, which was compiled in the same time frame, made no mention of it, and the reason I made that point of the note was trying to draw out that these were simultaneous events, and I viewed the child being held as not being an event of great consequence in the scheme of all these other events that had taken place. Surely if a child had been thrown overboard I would have changed my viewpoint and would have been reporting that. Senator FAULKNER-So the significance of this particular communication is that it is effectively the first in formal channels? Cmdr Banks-Is that `in formal' or `informal'? Senator FAULKNER-In formal channels. Cmdr Banks-Yes. With the benefit of hindsight, I view the telephone conversation as an in- formal communication, whereas the formal record is the signal summaries. Throughout Relex, or Adelaide's involvement in SIEV4, I drafted what were numbered as 33 signal summaries. You will see there are errors in that; I think we omitted sit rep No. 13-not that we were super- stitious; I think it was just an error in maintaining a record of the sequence numbers. But those are short, sharp summaries of what we saw, observed, were involved in at a period of time from the interception through to the landing of the SUNCs at Christmas Island. I view those as the official record of Adelaide's involvement in SIEV4. CERTAIN MARITIME INCIDENT CMI 200 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-Not one of those series of communications says there is-or even hints at-a child being thrown overboard, does it? Cmdr Banks-Not until I was asked to make the chronologies, on 10 October, did we start talking about that incident. Senator FAULKNER-In the chronology, how is the incident referred to? Cmdr Banks-As a child being held over the side. Senator FAULKNER-Thanks for that. You and I have both mentioned the disputed phone conversation with Brigadier Silverstone. Appreciating your comment that you did not want to go to that in answer to my previous question, we cannot get away from the fact that there is a disputed recollection of the contents of such a phone conversation. I think you would accept that. You have a strong view about this. We are yet to hear from the brigadier. He has provided some evidence, as you appreciate, which is contained both within General Powell's report and Ms Bryant's report, and he has also provided statements in support of that. You would certainly accept that there are different recollections or different views about this. Yours are strong, and we will hear from Brigadier Silverstone shortly. But you accept there were a number of phone conversations; it is just that one element of one of them is disputed by the two parties? Cmdr Banks-That is correct. To this day, I wish I had perfect recall. I have difficulty remembering conversations I had this morning with my wife. But I would believe that, if a significant event took place, I would recollect that. I think there is also some dispute over the timings of the telephone conversation. I certainly recollect a number of telephone calls that day with a number of different people. Relex was perhaps a watershed event in what became proliferous use of the telephone. In my naval training, I have not used the telephone as much as we did during Operation Relex. My recollection of the conversation: I recollect a number of conversations over that day, more so for the subject matter. If a tape recording existed of that conversation, I would be quite happy for that tape recording to say that I made that statement that children were threatened or indeed were thrown overboard. If that was the truth and it was on the tape, I would be happy to acknowledge that. Equally, if a tape recording clearly showed that I did not say that, I would not be standing up here asking for applause and recognition of it; I would accept that that was what was on the record. My recollection of that conversation is not very clear. I do recollect parts of the conversation. I do recollect, in the telephone conversation at about six o'clock-and the times are a little in dispute there-being asked about a child and describing that I could see with my own eyes a man holding a child over the side. I recollect being asked about that and saying, `I can see it with my own eyes.' I do not recollect saying that a child had been thrown overboard or that a child had been recovered from the water. That is based on that being a six o'clock event. Earlier conversations, to my recollection, did not make reference to children at all. I look forward to hearing Brigadier Silverstone's version of that. One of the reasons I am so adamant-perhaps too strong a word-is that in my sworn state- ment, which I submitted on 11 October, I relied on the principal warfare officer, my operations CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 201 officer, who was standing adjacent to me. His recollection of that conversation was that I did not say `throwing children overboard'. He made a sworn statement to that. I captured that in my testimony, but in that testimony I also said, `I am not sure what I said or the exact detail of the conversation,' because it was just one of a number of conversations that took place in what was a fairly busy day. I said in my statement that I would attest that a child was not thrown over- board, but that a child was threatened to be thrown overboard. Senator FAULKNER-Thanks for that, Commander. Could you explain to the committee why there was such a reliance on the telephone in this particular operation? You said that was something new in your naval experience. Could you explain to the committee why that was the case? Cmdr Banks-At the time, I was not aware of that. With the benefit of immediate hindsight, 8, 9 and 10 October, I was advised that Relex was a sensitive operation and that the provision of timely and accurate information was essential. I believe the telephone was viewed as the most timely way of conveying that information. I want to say, though, that most of the signal messages, whilst they took time to draft, type, proofread and send, generally took about 15 minutes from drafting the first words to releasing the message and it being transmitted. If you went through all the logs, you would see that the message delivery for Operation Relex was fairly prompt. Messages were turned around in quick order, often of four, five and six minutes. Senator FAULKNER-I am interested in understanding whether part of this is because of pressures on CJTF 639 because of what was happening with the People Smuggling Task Force in Canberra; whether that is why this more immediate form of communication-but, I think everyone would accept, less reliable in terms of a record-was used. Frankly, we do not know yet, Commander, whether phone conversations at NORCOM are recorded as a matter of course. I have asked that, and in time we will probably hear the answer. It may be that there is a record of your conversation with the brigadier. The brigadier can probably assist us with that at a later stage. But I am interested in understanding whether the reliance on telephonic communication, the urgency-and you may not be able to assist me in this-was because of the significance of this as a public issue and whether that had an impact on the nature of the communications that occurred to and from HMAS Adelaide. Cmdr Banks-As you said, I think you would be better off asking CJTF 639 about the background to that. Senator FAULKNER-Senator Collins-properly-has asked me to check with you as to when you became aware of the difference of view between you and Brigadier Silverstone in relation to suggestions that a child had been thrown overboard. When did you become aware that there was this difference of view? Cmdr Banks-I believe it was 9 October and possibly as late as 10 October. Senator FAULKNER-Do you know how that was drawn to your attention, how you became aware of it? CERTAIN MARITIME INCIDENT CMI 202 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-There were two events. One was a telephone call from the Maritime Commander to ask me for clarification. The second was a conversation with Commander NORCOM, again to ask me to clarify what had been said and what had not been said. Senator JACINTA COLLINS-When was that? Cmdr Banks-I believe it was 9 October. It may have been as late as the 10th; I am pretty confident it was 9 October. If there is one thing I have learned it is that I need to keep a diary of telephone conversations. Senator FAULKNER-It would be another log, probably. Cmdr Banks-It would be another log. Senator FAULKNER-In relation to that issue, or the question of when this became an issue, you did not only have that communication but I think at some point around that time members of Adelaide's crew-I assume including you, but you can tell us-became aware of the misrepresentation in the media of the photographs and the incident they related to. I am drawing a distinction here, you appreciate, between them allegedly depicting that children had been thrown overboard, as opposed to-what we know to be the case-photographs that surround an issue on 8 October, the sinking of the SIEV. You might explain that to the committee, if you could. Cmdr Banks-I would be delighted to. There was a question yesterday in which Senator Bartlett asked me about email. I would like to add to that. Whilst email was switched off for the ship to send messages, we were still able to receive messages-emails. Therefore, some of the inbound traffic intimated-certainly I had some personal email from some friends and family saying, `You're making newspaper headlines.' That prompted us to go on the Net and the XO produced a photograph from the front page of the Herald Sun on 8 October-and I think we got that on the morning of 9 October-which was the first real hint that there was a clear misrepresentation going on. I cannot recollect whether the brigadier phoned me and raised the subject or whether I phoned him and raised the subject. But at some stage there was a conversation in which we discussed what was happening, the photographs, what I had said, what he recollected I had said and my confusion: `I don't think I said that but, Sir, I could be corrected.' He conversed with me that I was busy and that perhaps I was not fully aware of all the things that were happening, and we had a long discussion about that. I was subsequently directed to collect statements from the ship's company and also to provide my own statement of that recollection. That would have happened over the 9th and the 10th. Senator FAULKNER-You mentioned before that you were advised that this was a `sensi- tive operation'. Can you give me some background to that? Why do you make that statement? I think they are your words, I think I am quoting you correctly from a little earlier in your evi- dence when you described Operation Relex as a `sensitive operation'. It might be useful to un- derstand why this is outside the norm. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 203 Cmdr Banks-No pun intended. It was sensitive in the sense that the operational traffic was all classified. Most of the messages setting it up were secret. As events unfolded the commander made it clear to me, in conversation and in signal format, that this was sensitive and certainly his signals on 9 and 10 October drew a clear statement that this was a sensitive operation and we needed to have clear, unambiguous lines of communication. My error with Channel 10, I was advised, had attracted some criticism because-whilst it was not intended to be a controversial statement, it was only statements of actual fact-it had been portrayed on Channel 10 in a different context, and that was attracting some comment. I was, therefore, fully aware that this was overall a sensitive operation. The whole set-up of the operation intimated that there were some sensitivities here and certainly my earlier experience on the handling of immigration was that it was a sensitive issue. Senator FAULKNER-You said that in the phone call with Brigadier Silverstone you were asked about a child going overboard. Was that raised by the brigadier? I am just wondering who first raised this issue in relation to the child going overboard. Cmdr Banks-Which date are we talking about? Senator FAULKNER-The phone conversation you referred to a moment ago-and I do not think I have jumped to any conclusions about the date, but I assume it is 10 October. Cmdr Banks-Again, I do not have perfect recall; we had a number of conversations. Between the Maritime Commander CJTF 639 and myself the issue was raised and discussed and decisions were made to go away and validate the information. The Maritime Commander asked me to check with the members of the boarding party and-I do not know whether I was told to take statements or if I made the decision, but a decision was made-to take statements from people involved. I spoke to all of the ship's company over our main broadcast and said that anybody involved or having a recollection of the man overboard incidents, particularly those on 7 October-and I do not know whether I spoke specifically about the child, but certainly about the man overboards, and I believe I would have spoken about the child-should contact the ship's coxswain and provide written information. A number of the ship's company did that and I think 15 or 16 statements were taken. If you read those, some talk about different events. One or two talk specifically about the child and they had different recollections of that incident. I was then also asked to make my own statement and I went to my cabin and made a fairly quick and nasty typing job of my thoughts and then fleshed that out over time to make it a formal statement. I made that statement largely without drawing on the logs or any of the other information, although most of it was in my head. To be fair, I lived the events of the preceding two days and I believe I had a pretty good recall of what had happened, certainly from my perspective. I am not sure of the protocol here, but, in answer to a previous question, the public affairs plan was a public affairs plan for Operation Relex. I believe the committee already have a copy of that document, the draft. Senator FAULKNER-Yes. Cmdr Banks-That was the only plan that was issued. There was a subsequent plan, I believe, issued after SIEV4 was finished. Whilst it was not a signal addressed to the Adelaide, I CERTAIN MARITIME INCIDENT CMI 204 SENATE-Select Tuesday, 26 March 2002 have been asked to advise that there was a direction on communications from the Commander Australian Theatre that said: `Naval Component Commander Australian Theatre'-who is the Maritime Commander-`and COMNORCOM CJTF 639 are to advise the Commander Australian Theatre by command-to-command personal telephone calls when the following occurs: when the ADF forces establish visual contact and positively confirm a vessel is a SIEV; when sufficient detail is known about the SIEV to warrant a subsequent call.' That instruction was issued on 6 September. Senator JACINTA COLLINS-I just want to interject briefly on Senator Faulkner's questioning in relation to this phone conversation, subsequent phone conversations and the disputed recollections between you and Brigadier Silverstone. I have a number of questions that I will go to later, but just on this one point that Senator Faulkner was dealing with, Brigadier Silverstone indicated in his statement-and I want your response on this point-this is attachment 2 to his statement dated 3 December, that he, referring to you, Commander Banks: ... asserted that he had informed me during our conversation on Sunday 7 October that those on SIEV4 had only been, `threatening to throw children over the side' ... Brigadier Silverstone goes on to comment: This report clearly contradicted my notes and recollection of our conversations not only on AM Sunday 7 October but subsequently. His statement reflected the conclusion reached as a result of the statements taken from those members of his crew involved and reported by him to me on 101144I/K October and not the content of our conversations on and subsequent to 7 October. My question to you, Commander, in responding to that is: what is there in Brigadier Silverstone's understanding that you might be aware of to lead him to believe that there was no dispute after your conversation of 7 October? Cmdr Banks-I have not had the privilege of reading that information in front of me. I think you had probably better ask Brigadier Silverstone. Senator JACINTA COLLINS-The reason I am asking you is that it is fairly clear that he seems to be implying that, until you produced the statements from your crew, there was no such disputed recollection of the 7 October conversation. Cmdr Banks-It would be my assessment that if he recollected that I said something then I would have said it and he would have walked away with that understanding throughout because there was no information to contradict that thereafter. It was my recollection that I had not said that or did not say that and I had received no information to the contrary. Until the 9th/10th information we were both probably operating on a tangent. Senator JACINTA COLLINS-So between the telephone conversations of 7 October and 9 and 10 October there was nothing in any interim telephone conversations to contradict either of your understandings? Cmdr Banks-Not that I recollect. We had lots of telephone conversations, and when the distress incident, the tow and the sinking took place those events took primacy. It was not until the information was coming into the ship that there was clearly a difference of opinion and that CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 205 the media representations were different to our recollections that we realised that something had to be done and the subject was brought back up. Senator JACINTA COLLINS-Did you have a subsequent conversation from 7 October with either Brigadier Silverstone or some other person such as COMFLOT indicating either that there were threats or that a child had been put over the side? Cmdr Banks-To my knowledge, the first conversation was on 9 October. I believe the Maritime Commander rang me and asked some questions. About the same time the brigadier and I had those discussions. Senator JACINTA COLLINS-Despite the fact that you spoke to a number of people between 7 and 9 October, the only example of a dispute about reporting on this incident is that with Brigadier Silverstone on 7 October? Cmdr Banks-That is my understanding, and that is the confusion. If you believe something and you do not see anything to the contrary, you will continue to believe it. I think that applies to both of us. I had a conversation and a recollection of what that subject was. I then wrote sit reps, which were my version of what had happened. That substantiated or supported that telephone conversation from my perspective. The brigadier has his recollection of the telephone conversation and he will be able to answer his concerns about any lack of information to substantiate that. Senator JACINTA COLLINS-Thank you. Senator FAULKNER-On this issue, Commander, you indicated in your opening statement that, since your return to Australia, you had an opportunity to have a look at some of the evidence that was adduced at the Senate estimate committees. I do not know whether you have read the Hansard, but you have indicated to us that, in a general sense, it has been drawn to your attention. I want to go to a comment made by the Chief of Navy. On page 147 of the Hansard of 21 February this year he said that you: ... said to me that he is fairly sure that he said to Brigadier Silverstone that there were people being thrown in the water or a child had been thrown in the water, but, in hindsight, he was now just a little bit ambivalent. ... ... ... When we talked it through I said, `Well, frankly, I would think that you probably said at the time what the brigadier wrote down in his notes ... I think he- that is, you, Commander- accepted that ... My view is that he- that is, you- almost certainly did say what Brigadier Silverstone wrote down. CERTAIN MARITIME INCIDENT CMI 206 SENATE-Select Tuesday, 26 March 2002 This goes to your discussion with the Chief of Navy on 8 November. I am a little surprised at that, but the best way to deal with this is to ask you whether you would mind us placing on the record the nature of your comments to Admiral Shackleton on this issue-in other words, the differences between your and the brigadier's recollection of that particular phone call. Cmdr Banks-I would be delighted to, because I was a little concerned that some of these comments were reported by the media this morning. These were notes that we had not discussed. The whole issue comes down to this telephone conversation. To say that I have had occasional sleepless nights over this would be an accurate statement. I wish I could recall that conversation with the clarity that is necessary to put this issue to rest. Unfortunately, I cannot. I am relying on my recall of the overall events and the context of what was happening and what I would have viewed as significant. I do not recollect the specific words or the grammar that was used but I certainly recollect talking about a child being threatened to be thrown over. I certainly recollect being asked something along the lines of, `Norm, that is pretty serious; what proof do you have of that?' `I can see it with my own eyes.' Whether that was an inaccurate statement, in the sense that I did not say it clearly or the brigadier transcribed it in a different guise or he did it in short form, certainly when we spoke on the 9th or 10th he said to me, `I have a record of what you said, Norm,' and read out what I thought were sentences. I was surprised later on to find out that he actually had very short notes. When a commander questions what you have said and says from a position of authority, `You said this; I have records of this,' I thought, `Well, perhaps maybe I did say that'-I almost want to use an expletive there. Senator FAULKNER-It would be out of character, I think, Commander. Cmdr Banks-My mother would be upset. Because I do not have a clear recollection of what was said, when the brigadier said, `I recollect you said this,' I said, `Well, perhaps I did, Sir.' But I also had a conversation with the PWO, which says that I did not say that. So I am in a clear quandary here over what is a significant statement. And, believe me, I was aware of the significance of those statements early on. Throughout I have been trying to convey the message that I do not have a recollection of that conversation to the degree where I can emphatically say, `Yes, I said this; no, I didn't say that.' What I can say is that shortly thereafter, and within minutes, I was transcribing a sit rep-a situation report-in the continuance of those sit reps throughout that event, and I made no reference to it in that sit rep. Therefore, I am more comfortable in my mind, with the passage of time, that obviously I did not say that, because I did not report it in any subsequent correspondence. I wish to add that I released all those messages from Adelaide. All those messages, with the exception of one or two at the actual sinking, were proofread by me, amended by me and signed by me for release. I spoke to Admiral Smith and Brigadier Silverstone in the period 9, 10, 11 October. The next conversation I had with anyone about this issue was on 8 November with the Chief of Navy. I said that I had had some sleepless nights because I was wrestling with what I was seeing on TV in the period from 14 October. The ship returned to Australia on 14 October, and I saw the Sun- day show and was confused at what was being reported. I was also cognisant of the fact that I was under clear instructions that I was not to talk about Relex as it was an ongoing operation CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 207 and there were clear media/public affairs guidance principles. When I spoke to the Chief of Navy in my cabin, it was the first opportunity for me to talk to anybody in my naval chain of command about what had gone on. I was unaware that he was not au fait with all the back- ground information. I was unaware that he had been out of the country and did not have, as he said in his statement yesterday, an understanding of the events that had gone on in the last few weeks. That was my first opportunity to speak to somebody about this. I had been asked to prepare for the Chief of Navy a brief based on the EOTS videotapes, and I did that the night before. Commodore Hancock had rung me on 7 November and told me that this was getting another airing and that I ought to be prepared to brief the Minister for Defence and the Chief of Navy on what was being known as the `children overboard' affair. I made those preparations. The Chief of Navy visited the Adelaide after the church service in Perth. He came up to my cabin and we briefly viewed the video and I showed him some photographs. To my recollection, I spoke of my concern and confusion over the whole thing-where it was heading and how big an issue it was becoming-and that I was clearly confused over how that had transferred from what had happened on 7 October, in our recollection, to what was being portrayed in the press on 7 and 8 November. I had just driven down in the car from Perth and heard the ABC reports that the media had copies of the video. I recollect that the Chief of Navy spoke about the `fog of war' and I recollect that the brigadier and I had discussed that in earlier October. But perhaps my recollection was not accurate because of the amount of activities that were going on. I believe I affirmed that my view was that I had not said that children were thrown overboard, but I could stand to be corrected on that. I recollected a conversation with the Principal Warfare Officer, who stood by me and said, `You didn't say this,' at least in that conversation; I do not know of other conversations. The Chief of Navy spoke to me about it: `You could be right, you could be wrong. It really doesn't matter, it's out there in the arena now. There's an election going on. It's a hot item. It will pass with time. What you need to do is to focus on the fact that your crew did a great job rescuing those people.' He could see from the photographs that this was clearly a rescue operation. He said that my job was to stop worrying about the past and deal with the future, which was Operation Slipper, and to prepare myself and the ship for the task at hand that we were sailing for that day and that I was to just get on about the business of leadership and preparing the ship's company and, if I had concerns about people, dealing with those on board. I think that discussion took place over maybe a 20-minute period. If the Chief of Navy's recollection of that is in Hansard, that is his recollection. I do not want to argue or dispute that. Senator FAULKNER-This is another one of those situations, Commander, where you and Vice Admiral Shackleton are the two people having the conversation. In fact, Senator Brandis asked Admiral Shackleton about this back on Thursday, 21 February. This is our first opportu- nity to ask you about it, and that is why I would like to get it clear. I think what you are saying is that your recollection is different. I refer to Vice Admiral Shackleton's comments about half- way down page 147-just to be clear-where he says: He- that means you- CERTAIN MARITIME INCIDENT CMI 208 SENATE-Select Tuesday, 26 March 2002 was ambivalent about whether he had actually said to Brigadier Silverstone that a child had been thrown into the water. I discussed this with him a bit. When we talked it through I said, `Well, frankly, I would think that you probably said at the time what the brigadier wrote down in his notes, because the brigadier was in the comfort of an office that wasn't rolling around, and people shouting and asking him to do all kinds of other things.' I think he accepted that. I can understand, in hindsight, how he may question what he thinks he said. And so on. I ask about this because this particular conversation on 8 November-albeit about an event which, as you properly say, was getting a lot of publicity and in some ways dominating that period during the election campaign-does not take place in quite the same atmosphere as might have been the nature of what was occurring on the Adelaide on 7, 8 and 9 October. This, of course, was on 8 November. Cmdr Banks-My context of this conversation is that it was a fairly pressured day. I had little warning of where this was leading. I was expecting the minister and the Chief of Navy to view the tape before it was going to be released. It subsequently transpired it had been released. I had a brief period of time with the Chief of Navy and I tried to convey that I was confused, I do not recollect what was said but it had clearly become a big issue and I was worried about it. We discussed that. The representation, or the statement, in Hansard is not uncomfortable to me. I walked away from that believing that we were agreeing to disagree. Senator FAULKNER-There has been a little bit of press commentary on the pages of bullet points that were at the end of your statement. You may or may not have heard the commentary. Cmdr Banks-I heard it this morning. Senator FAULKNER-Yes, I thought you might have. I do not want to get bogged down on that. If you go to page 32 of 35 of what was tabled yesterday and go to the last square point there, it says `GOAS'. That stands for `government of Australia', doesn't it? That is an acronym I am not used to. Cmdr Banks-Is it the conversation on 8 November or the 25th? Senator FAULKNER-It is on page 32 of 35 of your tabled opening statement. Senator JACINTA COLLINS-In the middle of the page. Senator FAULKNER-The last square point. Cmdr Banks-It stands for `government of Australia'. Senator FAULKNER-Could you explain that to us? My concern there is the qualification: `If aim was to support GOAS with evidence that a child was in the water ...'. Was that the aim? Cmdr Banks-I can address that in two ways. I would like to set a contextual statement first and then answer the question-and I might ask you to remind me of the question as we get through it. I was a little disturbed that these points have made it to the media. There was an error yesterday evening. My intention was to provide the statement to the Senate committee on completion of reading it. I made the mistake of having my own talking points in the same CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 209 document. When the secretariat got those, we had not separated the 28 pages of statement-in that size font, not 28 pages of actual text-from the remaining pages. I was also surprised when I was asked to table that-I think Senator Bartlett or Senator Cook had said that you already had the statement in front of you-as I was unaware that you had been given it at that time. When Senator Bartlett was reading from these bullet points-and it took me a minute to realise which bullets he was reading from, that they were these pages-I was faced with a decision whether I should ask for those to be handed back or to remain on the record. In the short space of time that that was happening, I viewed taking those back as perhaps indicating that I had something to hide, and I did not want to give the committee that impression. I was very happy, therefore, in a cursory glance with Peter Baston, that there was nothing contentious in here and for those to remain in the Senate committee's hands. In the subsequent discussions about documents being released to the Australian public, I naively took that to mean that all the reports would be released at some stage today. I was unaware-and I use the word `naively' there-at the time I tabled my statement that those copies were being made available to the Australian media and that by 9.30 or 10 o'clock last night people were reviewing those notes. I have to live by that mistake. I stand by that none of these points in here are contentious or controversial, but I had produced them as memory joggers for me if those questions came up. I had assumed that you would be asking me specifically about my recollection of conversations with a number of people and these were the points that I wanted to bring out. CHAIR-I will just say something, because I think it comes back to the chair, and that will not mean that you cannot say something. I think it is appropriate that, given the commander's response, I come in here as the chairman because I have a responsibility- Senator FAULKNER-Before you do, Mr Chairman, I am sensitive to the fact that Commander Banks said he would like to answer my question in two parts and one was contextual. I was not sure whether he had finished his contextual remarks. It is not fair to the commander in this circumstance to respond before he finishes that part of his remarks. I do not know whether he has or he has not. CHAIR-If the question is whether the commander finished his reply- Cmdr Banks-I have not finished the reply, but I have finished the contextual framework. Senator FAULKNER-That was my concern. If the commander has finished his contextual remarks, that is fine. CHAIR-I did not realise, until it was drawn to my attention, that your private memory jogger bullet points were attached to the statement that was being circulated. When that became obvious to me, I offered to hand them back to you, because I regard those as your private notes and not necessarily what was intended to be your public statement. My understanding of private notes is that they are, as you have described them, memory joggers. If anyone looked at my private notes-and people do from time to time-what they indicate on the page is not necessarily what I would say. They simply spark the thought that I want to convey, and they usually spark it in fairly direct, pithy, colloquial language, and I would like to express myself CERTAIN MARITIME INCIDENT CMI 210 SENATE-Select Tuesday, 26 March 2002 with greater elegance than that. So I regard those bullet points as private notes; I do not regard them as necessarily meaning anything very much at all. Your evidence is what we should pay attention to. I think it is embarrassing for you, Commander, and I apologise to you on behalf of the committee that your private notes have been distributed. I think that they were attached to the document that was handed up and that the secretariat innocently photocopied the lot and distributed them. It is one of those things-and maybe this is a motif for the entire inquiry-that has happened which we have to now deal with. Those are my remarks from the chair, and I do apologise to you that that occurred. Senator FERGUSON-Could I clarify one thing about this statement. Commander Banks, if your statement was meant to be tabled and your own notes were not, why on earth have you got this unclassified document numbered from page 1 to 35, as though your handwritten notes were part of the statement? Cmdr Banks-I produced this statement back in Perth as a document. When I arrived here yesterday, I was advised that it would be appropriate to table my statement. Senator FERGUSON-But it would appear as though you are trying to separate- Cmdr Banks-I made an error in that I did not separate the two parts of the document. Senator FERGUSON-But if you intended to, why on earth did you number this from page 1 to 35? It is no wonder the secretariat thought that it was part of the statement if the pages are numbered 1 to 35 and, in fact, the last four or five pages are your private notes. Senator FAULKNER-It is not my job to defend the commander, but you know as well as I do that the committee has asked Dr Hawke and Admiral Shackleton whether they would mind, as a courtesy, tabling their opening statements. We all know it is easier to get across evidence more quickly, and to refer to it, if you have it in written form. Senator FERGUSON-I understand that, Senator Faulkner. All I am asking is: if these were meant to be his own notes and he did not intend to table his private notes, I just do not know why they are consecutively numbered from page 1 to 35 as though they were part of one docu- ment. Cmdr Banks-I had not intended to table anything until I was asked to yesterday. Senator FAULKNER-That is the point. Senator FERGUSON-Okay. I am just asking. Senator FAULKNER-We have asked the witness to table this as a courtesy. I asked Dr Hawke whether he would mind because I knew he had a prepared statement. I do not think the witnesses come thinking that the material will be tabled. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 211 CHAIR-I do not think there is any need for us, as a committee, to take this any further. If any committee member wants to discuss it further, let us do that in our private meeting scheduled for lunchtime. Certainly I, from the chair, have followed the habit of asking people who read written statements into the record-which helps us a great deal-to make their written statement available to the committee as a courtesy. We get a copy of what they say through Hansard, but this simply means that we get their statement before us concurrently with their reading of it. That makes it easy for the committee to examine people on their statements, rather than waiting for the black letter of what they said to come through Hansard, for which there is a delay. It is a considerable convenience to the committee in our expeditiously meeting our deadline to complete our inquiry, which is indeed pressing. At that point, unless you have anything further to add, Commander-and I offer you the floor if you have-we will adjourn for 10 minutes for morning tea. Cmdr Banks-I would like to add the one point that these were memory joggers; they are being used in the media as quotes. That was the point I wanted to make: these are not quotes; I had not said these things. I am happy to discuss them and I am delighted that the committee has asked me about a couple of points in here that I will be able to address formally and which, therefore, would be tendered as quotable information. CHAIR-They are not quotes because you never said them. Were you to say them in the record of this hearing, they would then be quotes, I suspect. Cmdr Banks-I will save that for shortly, when I answer the senator's question. Senator FAULKNER-But I do think it is proper for you, Mr Chairman, to point out to Commander Banks that it is now a tabled document-it does have that status. The commander spoke to his opening statement, too, because he in fact added a significant amount. The best example of this is quite a substantial description of photographs that have been provided to the committee, which description is not contained within the opening statements. I think it is proper to say to the commander, in understanding all that background, that while they are not quotes they do have the status of being in a tabled document. CHAIR-The document is public, but they are not quotes because they are not speaking notes and they were never said to this inquiry. On that basis, I think we are all entitled to a cup of coffee. Proceedings suspended from 10.37 a.m. to 10.52 a.m. CHAIR-Commander, I think you were part way through an answer when we broke for morning tea. Cmdr Banks-I was. Senator FAULKNER-Would it help if I repeated the question, Commander? Cmdr Banks-That would be very useful, sir. CERTAIN MARITIME INCIDENT CMI 212 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-I was going-and now I can with the benefit of your contextual comments-to the last square point on page 32 of 35 of the tabled document. I was asking about the qualified statement contained in that document, which reads: If aim was to support GOAS with evidence that a child was in the water then the photo of the Iraqi male youth would support that albeit not absolutely. My question goes to why that would be the aim. I am wondering what the motivation and imperative might be, or whether you questioned motivations or imperatives here. Cmdr Banks-Sir, as I said, on 8 November I was confused as to where this whole issue was heading. In that discussion with the Chief of Navy about the `child overboard' issue-the conversations that had or had not taken place with COMNORCOM-I then made a comment that if it was the Navy or Defence's aim to prove that a child had not been thrown overboard then clearly the videotape showed that a child had not been thrown overboard but a child was threatened to be thrown overboard. If the aim was to support the government's views that children had been thrown overboard, then clearly the photograph of an Iraqi male youth in the RHIB, having been recovered from the water, was support for that statement. I realise I am entering the realms of politics-and it is an uncomfortable area for me-but, in the privacy of the cabin, that was the discussion. If we are here to provide proof that children were not thrown overboard, then it would appear that the videotape shows that, and that supports my recollection of the conversations. If the aim is to show that children were thrown overboard, or some form of proof that children had been thrown overboard, then the photograph-I think it is one of these 31 here-shows a youth in the RHIB, having been recovered from the water, and therefore you could draw the link that a child had indeed been in the water. Senator FAULKNER-Commander, was Chief of Navy able to tell you what the aim was? Cmdr Banks-I do not recollect that. What I recollect is his advice-not so much a shrug of the shoulders-of, `It's water under the bridge, Norm. You've bigger things to deal with. This is about the government. This is about politics. This is about the election campaign. Forget it and get on and deal with your job at hand, which is preparing the deploy to go overseas.' At that stage we did not know it was for 4½ months; it was for an indefinite period. Senator FAULKNER-Were you able to ascertain whether the key imperative here was for the truth of the situation to come out? Cmdr Banks-You would have to ask Admiral Shackleton that. My aim was to offer an opportunity for either situation to be supported. I was confused throughout about what had happened and where this whole situation was heading. If I went down the line that a child had not been thrown overboard, there was still a photograph of a youth in the RHIB. Senator JACINTA COLLINS-How does that sit with your comment in your email to Ms Bryant saying: CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 213 If GOAS are clutching at straws and want to use the photo to say `see there were children thrown overboard' then I am not prepared to make comment further. In any case my crew statements all attest that the `teenager' jumped of his own accord. It seems in that comment that you are quite clear that that is your view, rather than just furnishing evidence or not furnishing evidence. Cmdr Banks-That was, again, written after the event. That was written in December or January. Senator JACINTA COLLINS-On 14 January. Cmdr Banks-Some significant time after. Senator JACINTA COLLINS-`Clutching at straws'? Cmdr Banks-I will come to that one. I do not want to enter into areas where I am criticising the government or making a political stance in any way. I was also unaware that those emails were going to go on the public record. Those emails were scene-setters between Ms Bryant and me. There was evidence that I provided and then there was commentary that she and I exchanged, and I believe that was written in the sense of a commentary. Clearly, I have made a political statement in that and, clearly, events had passed on from the confusion of 8 November. We were now into the new year. Senator FAULKNER-I assume that the discussion that you had in your cabin with Chief of Navy was a private discussion. For better or worse, there is more detail about it now on the public record, which I am sure you accept. I am trying to understand where this ends in terms of how this matter was dealt with. In what you have said to us, you are indicating two possible approaches to the Chief of Navy, depending what the aim of the exercise was. I am trying to understand what the outcome is-when you leave your cabin after that conversation with Admiral Shackleton is concluded, what understanding did you have? Cmdr Banks-Admiral Shackleton visited me primarily to prepare for the ship's farewell from Fleet Base West to deploy for Operation Slipper. The focus of that discussion was really centred on that. It had been added in the night before that, because the EOTS tape may or may not be released at the government's direction, would I show a copy to the Chief of Navy-and indeed to the minister, were he to come on board-so he had the opportunity of seeing it before any media release or media comment? I took that as an opportunity, whilst talking primarily about the Operation Slipper deployment, to say that I was concerned about Operation Relex and how this was being portrayed in the media and to express my concerns. Throughout the whole thing I would love to be emphatic and say, `I said' or `I didn't say'. With the passage of time, I have moved much closer to clearly saying, `I believe I didn't say', because of all the other pieces of information that I have been made privy to. In early October I remained confused and was a bit more able to swing each way-that is probably a bad expression; I was able to listen to both sides and accept that either could have been true. I was swayed-with the support of my principal warfare officer, from reviewing the signals and reviewing the witness statements and with the passage of time-that clearly I do not think I said it. CERTAIN MARITIME INCIDENT CMI 214 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-But did you leave with an impression that there was an expectation placed on you to do what you could to support the government's case on this or otherwise on a matter about which you have indicated to the committee on a number of occasions you had concerns about the public misrepresentations? Cmdr Banks-Admiral Shackleton and I were left with the opinion that this was clearly something not to worry about. It was out there; it was an issue that would be resolved probably with the passage of time and with the result of the election and, really, I was to concentrate on the job at hand, which was preparing Adelaide for Operation Slipper and getting on with that. Senator FAULKNER-So would you say that politics and the election are basically not matters for the Navy or not matters for HMAS Adelaide-you just get on with the job at hand? Is that the sort of impression you ended with? Cmdr Banks-That is the impression I had-that this was not something for me to worry about; I had more important things to worry about. Senator FAULKNER-But you were pleased of course when Admiral Shackleton, having had the benefit of his discussion with you, viewed the EOTS tape and went to the wharf at Stirling and did, what I call, a doorstop-a stand-up press conference or the like-and that was then in the public arena. You were pretty pleased with what was being said? Cmdr Banks-That is true. We were at sea but we remained within TV reception range, and that evening we caught one of the TV channels' news headlines and I saw Admiral Shackleton's remarks. I was not paying close attention to them but they were on and they attracted me. It was my impression, my feeling, that it was great to see the Chief of Navy standing up and, in my opinion, representing our view. I also add that that seemed to be a view that pervaded the ship. The ship's company were pleased that somebody was standing up and telling our version of the events-that this was a rescue, that no children had been thrown overboard, that a child had been held and that Adelaide had done a good job. Senator FAULKNER-Was that reaction somewhat punctured for you and for the ship's company when the Vice Admiral issued the clarifying statement? Cmdr Banks-We were largely unaware that he had retracted that. We were inside TV range for a period of time and then the reception went, and I do not think that I was aware of that retraction until several months later, perhaps Christmas, when I next spoke to Admiral Shackleton. Senator FAULKNER-I assume that would be the case for the crew as well? Cmdr Banks-As I said, we do not have great TV reception off the coast of Western Australia. It is designed for people on the land. The ship's radio and other equipment interfere with TV reception anyway. Senator FAULKNER-Was the role of the Minister for Defence or his staff discussed by you and the Chief of Navy in the meeting in your cabin on 8 November? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 215 Cmdr Banks-I do not recollect that in November. The Chief of Navy visited me again before Christmas. He came out to visit the Australian task group. He spent some time on Kanimbla. He then came across to Adelaide on Christmas Day, shared Christmas leftovers with us and spent the night in Adelaide. He took the time out, one-on-one, to have some lengthy conversations with me. They ran along the lines that our earlier conversation in November had not panned out, that this was an ongoing issue in Australia, and that he was aware that I did not have full access to the news that you enjoy in Australia. I was undergoing the inquiry process. I had completed the Major General Powell inquiry at that stage. I may have started the Jenny Bryant inquiry at that stage as well. CN advised me that, in his opinion, this was likely to go to a Senate inquiry or a parliamentary inquiry. He gave me some information and advice about this: that really I should not worry too much about it and that this was about bigger issues than Adelaide's involvement in Relex. This was at the core of the government and the policy of illegal immigration. It was about information flow in the various echelons of government and Defence and it was not about what Adelaide had done in early October. He mentioned that it was largely about what had been said to the minister's media adviser and had not been passed on. Senator FAULKNER-This was on Christmas Day, Commander? Cmdr Banks-It was on Christmas Day. Senator FAULKNER-My question went to November. The day before 8 November there is Commodore Hancock's request about the EOTS tape, and one of the minister's staffers, Mr Scrafton, is mentioned in that interchange, isn't he? Cmdr Banks-I understood that Mr Scrafton was going to view the EOTS footage at maritime headquarters in Sydney and that they wanted to know where the copy of the tape was. Senator FAULKNER-But for the purposes of complete accuracy in the record, the minis- ter's staffer was mentioned to you in November, at least in that context? Cmdr Banks-With Commodore Hancock, not with the Chief of Navy, on the afternoon of 7 November and again on the night of 7 November. Senator FAULKNER-I appreciate the visit by the Chief of Navy on Christmas Day last year. You have said that on that occasion the role of Minister Reith's media adviser was mentioned. Could you please provide for the benefit of the committee your understanding of the context in which that was raised and also what was said? Cmdr Banks-The context of how it was raised was that I was not to be worried and not to be defensive about Adelaide's involvement in Relex; that this was at a different level. It was about what had been said and what had been provided to the government as advice and what had been misrepresented. Clearly, I was not involved in that and there were other people who were going to be questioned about what they had been told and had not been told. I was in no way to feel threatened or worried. I was to concentrate on the job I had to do and get on with that. The Chief of Navy also advised me that I had not been a great guy-I had made some errors in my media statements-and he encouraged me, in a very gentle way, to perhaps not do that again. CERTAIN MARITIME INCIDENT CMI 216 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-Let us go to the issue of the Minister for Defence's media adviser. You have never had any contact with the Minister for Defence's media adviser, have you? Cmdr Banks-No. Senator FAULKNER-The Chief of Navy talked to you about this. What did the Chief of Navy inform you, on 25 December, about the role of the Minister for Defence's media adviser? I assume this is not your commentary because you did not know much about this-you were a long way away from Australia at that point. Cmdr Banks-I prefer not to answer that. The Chief of Navy would perhaps best recollect that conversation. Senator FAULKNER-With respect, Commander, I can understand why you prefer not to answer it but it is like the issue that we were canvassing earlier, the telephone conversation between you and the brigadier, which you appreciate is disputed, at least in part. This is a discussion that takes place in your cabin on HMAS Adelaide and there is, I assume, only two parties to it. Let me just take you back a step so that we are absolutely clear. Were there only two parties to this discussion-you and the Chief of Navy-or were others present? Cmdr Banks-It was a private discussion on the bridge wing. It was a very friendly discussion. The Chief of Navy expressed to me what had gone on because I was clearly not aware of all the things that had happened in Australia. He gave me his understanding of events, what was happening and where they would go. He explained to me what my likely role in that would be and he tried to put at rest my inherent defensive nature, that I was not to worry. I guess the expressions that he used were, `You're not going to be a scapegoat out of this. You're not going to be the fall guy for this. Probably there are bigger fish to fry. It is clearly about information flow.' My recollection was that he said that the minister's media adviser was one of the people who would be called to answer for what was said and not said, what photos were passed and not passed, and what text was passed and not passed. He said that clearly those were issues for me not to be worried about. In the context of the media I was reminded that I had not helped the situation with the Channel 10 interview because that then precipitated the photographs being released which precipitated the entire sequence of events. Senator FAULKNER-Did the Chief of Navy mention the media adviser by name? Cmdr Banks-I am pretty sure he did. I was aware of Mr Hampton's name beforehand, and I am pretty sure he mentioned him by name. Senator FAULKNER-Did the Chief of Navy express a view about the appropriateness or otherwise of Mr Hampton's role in this episode? Cmdr Banks-My recollection of that is not sufficiently clear to make a clear statement. Senator FAULKNER-But you do- Cmdr Banks-It was suggesting that it was not glorious. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 217 Senator FAULKNER-I do not think anyone would argue with that. But beyond not being glorious, are you able to assist the committee at all? Cmdr Banks-I do not believe so. The intent of the Chief of Navy's message, in my recollection, was to put my mind at ease-to forewarn me of where this was likely to go, to put my mind at ease to concentrate on the job I had to do and not worry about events of the past. Clearly, apart from one aspect-the Channel 10 media interview-I was not, thereafter, involved in the events that then transpired with the release of information to the Australian media. Senator FAULKNER-You also, of course, had the benefit of a visit from CDF and Minister Hill. That was, I think, on 17 January. Cmdr Banks-Yes. Senator FAULKNER-How did that visit go? Cmdr Banks-That was a great visit. It was a very short notice visit-the new minister came out to see what ships were doing in the Gulf. He was accompanied by the Chief of the Defence Force. The program was changed on the run owing to the geographic disposition of the ships at the time, and at fairly short order we prepared to embark both the VIPs. They joined us for a briefing, a light lunch and an opportunity to chat to the ship's company, which Senator Hill did-he `pressed the flesh' with the ship's company and walked away with an understanding of the role of the Navy and the Adelaide in maritime interception operations. It was very much a visit with the focus on Operation Slipper. Senator FAULKNER-Fair enough. Was this the first contact as commanding officer of the Adelaide that you had had with CDF or CDF's office since 7 October 2001? Cmdr Banks-That is correct. Senator FAULKNER-Subsequent to that visit on 17 January and the discussion with CDF that you had in late February, were there any other contacts that you had with CDF or his office? Cmdr Banks-I had some conversations with his staff during the period of the development of the Bryant report and the Major General Powell report, where I sought guidance on releasability of information to comply with the instructions for both of those reports. I was operating under guidance from COMNORCOM and Maritime Command not to discuss Operation Relex and clearly I was having phone calls from staff involved in Major General Powell's team and Ms Bryant's team to answer questions. To clear my yard arm I sought direction from CDF's office that I was to comply with those requirements. Senator FAULKNER-Would you describe the nature of those communications as merely technical or bureaucratic about the development of the reports? Cmdr Banks-Absolutely. We did not discuss the substance. It was purely, `Am I allowed to comment, noting my previous instruction not to?' CERTAIN MARITIME INCIDENT CMI 218 SENATE-Select Tuesday, 26 March 2002 Senator FAULKNER-Yes. Cmdr Banks-For the second report I signed an acknowledgment for Major General Powell's report that I would not communicate the information about the operation. Then Ms Bryant's request came through and I sought a clearance to discuss outside the terms of Major General Powell's report. On both occasions I was given guidance from CDF's staff that I was to assist with- Senator FAULKNER-But General Powell's report, of course, was completed well prior to Admiral Shackleton's visit to you on Christmas Day of last year. Cmdr Banks-I think that is correct. Senator FAULKNER-Did Admiral Shackleton raise with you the findings or outcomes of the Powell report at all? Cmdr Banks-I have no recollection of that. I do not think the Powell report was released until January. Senator FAULKNER-I am not sure of its release date, but my recollection is that its completion date was 14 December. Cmdr Banks-If we had discussed it, it would have been in this context: `I have contributed to it, sir.' `Yes, I know you have; and, Norm, I think I have contributed to it as well,'-general banter, not specifics of findings or whatever. Senator FAULKNER-Fair enough. But when CDF visits the Adelaide on 17 January, you do ask CDF about whether he wants to discuss the SIEV4 incident? Cmdr Banks-Operation Slipper was the primary focus of the briefings for Senator Hill. I gave a presentation on the concept of operations for maritime intercepts and operations in the Gulf. I spoke at length about what our boarding capability was and how we were going about operations. I showed another famous video in the privacy of my cabin on how we were doing boardings in the Gulf, and I was not going to talk about Relex at all. It was not a subject for me to raise; it was a very short period that the senator and the Chief of Defence Force were to be on board. Over lunch in my cabin, whilst viewing the video of the Gulf boardings, the Chief of Defence Force made some comments to the senator that these were different to the Relex boardings; and there was some discussion there-that is, I was probably wondering where this was leading to and I spoke quietly in the Chief of Defence Force's ear and said, `Do you wish me to speak about Operation Relex with the minister and the Chief of Defence Force?' CDF's very gentle voice did not whisper but sort of spoke back to me, `No, Norm, it's not an issue.' I wanted to draw the distinction out to the new minister between the different types of boarding that Navy are asked to do, and how the same team can role-transition relatively easily; but also to draw the clear distinction that they were different types of boardings, that Relex was an interception of an immigration, perhaps to provide humanitarian aid; whereas the Operation Slipper boardings were much more military, much more armed and ready to board and seize. That was the point I think he was trying to draw out for the new minister. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 219 Senator FAULKNER-Does CDF at any stage ask you about the accuracy or otherwise of claims that children have been thrown overboard? Cmdr Banks-To my recollection, no. As I said, we were there really to discuss Operation Slipper. Having had the benefit of having the CDF's statements over the last few weeks, that was the first I knew that he did not know as much as I thought he knew. I had assumed that in January he was fully aware of Relex and all the issues that went with it and, therefore, if there were questions to be asked, he would ask them of me. Senator FAULKNER-Why did you make that assumption? I am not saying it is unreasonable-it seems a perfectly reasonable one-but why did you assume that? Cmdr Banks-Because he was Chief of the Defence Force, he would have been privy to all information that was necessary. I believed that the Relex information had been communicated into the chain of command and would therefore have made its way to him in various forms of briefings and notes. Senator FAULKNER-Did CDF raise with you during that visit to the Adelaide on 17 January the question of whether the photographs-which, as we know, have been or were promoted as evidentiary support of the fact that children had been thrown overboard-actually related to that incident? Was the question of the photographs raised at all? Cmdr Banks-I do not recollect that. We did have photographs, but they were photographs of the Gulf boardings; and I probably made some sarcastic remark about Norm Banks being in- volved in videos and photographs again. There was no bite on it. We probably both walked away with the impression that we each knew what we were talking about and that it was not an issue. Senator FAULKNER-In relation to the video, did the CDF raise the issue of whether the EOTS footage of the events relating to SIEV4 indicated that no child had been thrown overboard? Cmdr Banks-I do not recollect that incident being discussed in any detail. Senator FAULKNER-In relation to some of the matters that this committee is interested in, is it fair to summarise-and tell me if it is not-that, in your communications, conversations and discussions with the Chief of the Defence Force when he visited Adelaide on 17 January 2002, firstly, the accuracy or otherwise of the claims that children had been thrown overboard and, secondly, the accuracy of whether the photographs pertained to such an incident or the sinking of SIEV4 and, thirdly, the question of the video not depicting any child being thrown overboard, those three events, were not discussed by you or the CDF? Cmdr Banks-That is correct: those three events were not discussed by me or the Chief of the Defence Force. Senator FAULKNER-Did that surprise you? CERTAIN MARITIME INCIDENT CMI 220 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-No. We were there to talk about Operation Slipper. I did not have access to all of the information regarding what was happening in Australia-that this was recurring in the media. I guess my view was that he would have had the information I had. Senator FAULKNER-I appreciate, of course, that you were a long way from home and you did not have access to what was happening in Australia, but you did have the benefit of your discussions with Admiral Shackleton on Christmas Day 2001. So it is fair to say, isn't it, that you had a genuine awareness of the interest in this issue and its possible impact on the Navy but, most particularly, its possible impact on you as the commanding officer of HMAS Adelaide and the ship's company? Cmdr Banks-I was calmed by Admiral Shackleton's advice to me at Christmas. By January, I was not all that fazed about Operation Relex. If either Senator Hill or the Chief of the Defence Force had introduced the conversation or had raised concerns, I would have been quite happy to have addressed the issue and expressed my recollection of the events. It was not raised as a subject, although at one stage during the luncheon, viewing other videos, the CDF raised the subject of boardings-specifically Relex boardings. I then spoke to him and said, `Do you want me to talk about Relex?' I was thinking that that was perhaps where the conversation was going to head. The CDF made it clear that he did not want to discuss it any detail, that he was going down another avenue over the boardings. The other aspect was that it was a very short visit, and the primary aim was for me to get a quick briefing on what we were doing and then for Senator Hill to meet the ship's company in a bit of a rah-rah, press the flesh-`I'm the minister; well done; nice to see you guys.' Senator FAULKNER-Just for the record, can you rule out that Minister Hill, any staffers, officers or officials accompanying the CDF and the minister raised those self-same issues that we have been discussing with you? Cmdr Banks-I have no recollection of anyone raising it. I do not think the minister was accompanied by any staffers. He was accompanied by his military escort officer and Brigadier Gillespie, the Commander of Australian Service Contingent in the Gulf, and I think there was one more person. I do not believe there was a ministerial staffer in company. Senator FAULKNER-Can you be satisfied that a member of the crew would not have raised this issue with the CDF or the minister in casual conversation? It is probably hard for you to be satisfied of that. Cmdr Banks-I was in the company of the Chief of Defence Force when we went down to the ship's cafe to meet the ship's company or elements of the ship's company. We divided up into two or three groups. The Chief of Defence Force went one way with one or two of the Adelaide's officers and met the Adelaide ship's company. Brigadier Gillespie, I think, left fairly quickly. It was the same day that the sad news of the loss of the Australian soldier in Afghanistan came through, and that issue was happening pretty well at the same time. I accompanied Senator Hill on a brief walk through the cafe. I have no recollection of Senator Hill raising it. We spoke about Adelaide, South Australia, football and what a great city Adelaide was. He wanted to meet people from Adelaide. Senator FAULKNER-He was not talking about the Crows again, was he? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 221 Cmdr Banks-I think he was crowing about the Crows. He spoke about- CHAIR-There is not much to crow about these days. Cmdr Banks-Operation Slipper and what the troops were doing, how they were enjoying it, and all those sorts of things. I have no recollection of ever even entering the realm of Operation Relex. Senator FAULKNER-We have a similar situation, if you like, with the 24 October visit of the Prime Minister. You are able to rule out on that visit-because you did so in your opening statement yesterday, I recall-there being any communications or discussion with you about the question of the children thrown overboard incident. Again, are you able to rule out any such communications being had in casual conversation and the like as the Prime Minister and his party moved around the ship? Cmdr Banks-The Prime Minister and his party again subdivided and went their ways around the café; I stayed with the Prime Minister throughout, and other people stayed with Mrs Howard and the minister. I have no recollection of Prime Minister Howard raising the subject of Relex. The only time he raised it was in his remarks to the entire assembly of what a great job they had done and his general good wishes that we would continue that level of commitment and professionalism in our next job and those sorts of general remarks. Senator FAULKNER-I think we know from the tabling of an earlier document that you were `flummoxed' at this time. Perhaps you might explain for the benefit of the committee why that might have been the case. Cmdr Banks-That was a word I chose, because I think it accurately describes my state when confronted with the opportunity to meet the Prime Minister and the Minister for Defence for a one-on-one private tour at fairly short notice. That state was also exacerbated by my own confusion over the events in the lead-up to the election of how the information was being, in my words, misrepresented in the media. I did not shy away from the conversation; I did not introduce the conversation. If the conversation had been raised, I would have addressed the issues. But clearly I was not going to make a point of raising an issue that was topical. I was delighted that Prime Minister Howard acknowledged the significant contribution of the ship's company of Adelaide to the rescue of the 223 Iraqi and Middle Eastern nationals and that they had performed well. I was delighted that he drew reference to the fact that they would continue to perform well in their next deployment. The Prime Minister also spoke to the media on the forecastle and I think he repeated those words about how well the ship had performed. Senator FAULKNER-I certainly saw a clip of that on one of the news programs. Cmdr Banks-It was not the great photo I would like it to have been. I recollect at some stage, I think in conversation with Minister Reith, that EOTS was discussed: `That's it,'- physically pointing to it, and what EOT stands for being explained by me. I vaguely recollect that the minister got the acronym slightly wrong, and I corrected that. Senator FAULKNER-Were there any instructions to the crew about talking to the PM? CERTAIN MARITIME INCIDENT CMI 222 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-The ship's company were instructed to be respectful of the Prime Minister and his position, and to be honest to the Prime Minister about how they felt. If they were asked questions about any operations, they should answer those honestly as individuals. I did give instructions that I would prefer that they did not speak about the conditions of service for Operation Slipper. I was aware that the ship's company were becoming focused on the deployment and the conditions of service they would be deployed under, and I was also aware that those had not been resolved yet at a departmental, or indeed a government, level; and therefore that it would be unfair to ask the Prime Minister questions on allowances, medals and all those sorts of things. I was disappointed that one member of the ship's company pressed the point on an issue that clearly the Prime Minister would not have been able to answer. But, in his good nature, he listened to that question and he said he would take it on board as an issue to be followed up, and I reported that back into the chain. Senator FAULKNER-So there were no instructions to you or the ship's company about issues, apart from that in relation to allowances and medals: nothing else was off limits? Cmdr Banks-I have no recollection of being given any guidance on that. I was given guid- ance on timings, where to meet him, which car he was going to be in, how tight the time frame was and how important it was to get the media on board-a whole host of things. There was a meeting the day before where all those issues were thrashed out. I have no recollection of being given any riding instructions on how to deal with- Senator FAULKNER-Fair enough. So you were not, for example, asked or instructed not to discuss the issue of your own initiative and say, `This is a "children overboard" or related question,' and only respond to questions if asked? No such guidance? Cmdr Banks-I have no recollection of such guidance. In fact, I probably ought to rephrase that. I do not believe there was any guidance; that is why I would have no recollection of it. Senator FAULKNER-Yes. If I could just take you to the tabled document at page 30 of 35, to the last dot point there- Cmdr Banks-The incident liable to parliamentary or press comment signal? Senator FAULKNER-Yes. What does `signalled' mean in this sense? Cmdr Banks-`Signal' is a formal defence message. Senator FAULKNER-Yes; that is what I was wondering. Cmdr Banks-On every occasion that a- Senator FAULKNER-So you would receive a signal. Perhaps the best question to ask you is this: could you explain what that means? Cmdr Banks-Every time an incident happens that involves a ship, I am required to report that. Also, when ministerial visits take place and/or events where the media are involved take CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 223 place, there is a Defence Instruction Navy that tasks me to report that into the chain. I sent a signal immediately on completion of the Prime Minister's visit because it was not a well-known visit-it was on short notice that that had taken place. I also wanted to draw attention to the fact that one of the ship's company had raised the issue of conditions of service. It was a formatted message, and I had that released on 24 October. CHAIR-I wonder whether I might give the signal myself that we will be breaking for lunch earlier than I have indicated; we will be breaking at midday. Senator Faulkner, for your information, at about quarter to the hour, if you have no strenuous objection, I intend to pass the call to Senator Ferguson for a few minutes, because he will not be able to be here this afternoon and he does have some questions for Commander Banks. Senator FAULKNER-I might just flag with- CHAIR-I am not suggesting that you cannot then resume. Senator FAULKNER-I am trying to be as brief as possible, as you can see, and I would just flag that I would like to canvass some issues with Commander Banks, if I could- CHAIR-You have the right to conclude your questioning. Senator FAULKNER-in relation to his discussion with CDF later in February-24 February, I think. CHAIR-Is there a problem about handing over the call at about a quarter to? Senator FAULKNER-Why don't you, given that you have broken at this point, do it now if you like? CHAIR-All right. Senator FERGUSON-I must say that in my experience in the Senate it is the first time that a government senator has had to wait 4½ hours of witnesses being questioned before they get a chance to ask some questions. Mine will be reasonably brief, Commander Banks. I want to refer you back to your telephone conversation with Brigadier Silverstone. At the time you were responding to Senator Faulkner you said, `The whole issue comes down to the telephone conversation.' If I also remember rightly, when you were further questioned about Brigadier Silverstone's attitude as to whether or not your report was accurate-I think I have got written down exactly what you said-when he asked you how serious it was, you said it was serious because you could see it with your own eyes. That is not an unfair recollection of what you said to Senator Faulkner, is it? Cmdr Banks-The `I could see it with my own eyes' referred to the people in the water and also the child being held and dressed on the starboard side of the SIEV. Senator FERGUSON-The fact is that you really could not see everything that was going on with your own eyes, could you? CERTAIN MARITIME INCIDENT CMI 224 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-If I could address that again in context: I had an unencumbered view of events from the starboard bridge wing of the Adelaide. Senator MASON-Encumbered or unencumbered? Cmdr Banks-Unencumbered. Throughout the boarding operation I manoeuvred Adelaide such that I could see both the port and the starboard side of the SIEV at separate times. We were viewing the events from a position of height; that is, we were looking down upon the SIEV. I was in at close range and I had good visibility, and good conditions to see. Obviously I could not see everything because I was not there the entire time, but for the significant majority of the time I was viewing events as they unfolded in real time. The only time I was not viewing them was when I went into the bridge wing to answer the telephone. And throughout most of that conversation I would have been looking out the bridge window, a few feet further back from where I had been previously. Senator FERGUSON-If I could just quote you from your own report: The SIEV was on the starboard bow-beam of Adelaide and whilst I had an unobstructed view of the SIEV's port side, I could not see the vessel's starboard side. This is your own report. Cmdr Banks-No, I could not see the starboard side of the vessel. I could see the port side, the length of the vessel, the breadth of the vessel and the top of the vessel. I could not see events that were happening starboard side on its one deck until I manoeuvred the ship to the starboard side to have a look. Senator FERGUSON-That is not what your report says. Cmdr Banks-And then when I was on the starboard side I would not be able to see the port side. My point is that I could see as best as could be possible. Senator FERGUSON-During your comments to the committee you have repeatedly said how proud you are of the crew of the Adelaide, which we all accept, and how competent and efficient they have been in the execution of their duty. If your boarding party was reporting back to you that there were children in the water on the far side of the SIEV from where you were, in view of your expressions of confidence in the crew would you not naturally accept that to be an accurate reflection of what was happening? Cmdr Banks-There were a number of reports made throughout that morning. In an effort to maintain situational awareness of what was going on, we were assimilating information from the boarding party, the EOTS operator, our own observations, the observations of other people in the bridge area and the reports coming over the radio from members of the boarding party. There was certainly confusion over what was going on and certainly surprise. It was unusual to see people leave that vessel and go in the water. Those people were recovered and I have no recollection of reports that children were recovered in the RHIB. I know that all people were recovered. We literally counted them off and we went to some length to count that the same CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 225 number who jumped in the water and whose heads were seen bobbing were recovered by the RHIBs. At one stage a RHIB returned to HMAS Adelaide with two SUNCs embarked, both of whom were male of Middle Eastern origin, one of whom I assessed, because I went over there and had a look, as being a youth. That is clearly shown in the photograph. In that confusion of lots of information happening in a short space of time and the surprise of people going overboard, it would not surprise me that there may have been comments that children were being thrown overboard. Senator FERGUSON-Okay. Can I just read part of your report, which says: A second wave of six or so jumpers certainly entered the water though I recollect this may have been just before the child incident. Throughout, my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. In view of your expressed support for the competency of your crew, if sailors on board the HMAS Adelaide were at the same time reporting to you that children were in the water, wouldn't you naturally expect to believe that report from the sailors? Cmdr Banks-There was a large amount of information coming in and I have no doubt that what people reported is what they believed they were seeing. In the subsequent investigation, where we took the statements, some of those claims were not substantiated. Senator FERGUSON-I accept that. But we are not talking about subsequent claims because we are referring to the telephone conversation, which is the key-you said the whole issue revolves around the telephone conversation. In fact, that conversation was had at the height of this incident. Given that you have had reports from the boarding party and from the sailors on board the Adelaide-whom you have spoken so highly of-doesn't it seem incomprehensible that during the course of your conversation with Brigadier Silverstone, which was at the height of this incident-when in fact I think you said last night you did not even have time to turn your tape recorder on and off-that you claim that you never said children were in the water, particularly as you have no reason to doubt the veracity of what both your boarding party and your crew were telling you at the height of this incident when you had the telephone conversation with Brigadier Silverstone? Cmdr Banks-There are a couple of questions in that one statement. I could tackle them and you might refresh me as we go through. Over the period of about an hour a lot did happen. A lot of information came in and I assimilated information and I made situational reports, which are written documents, which are my summary, my recollection, of all that information that has been fed into the ship. In the earlier situation report-which you would know as Sitrep 8 or Oprep 69-I reported that some SUNCs were making threats to jump overboard, commit suicide and other veiled threats including gesturing with wooden sticks, and that one SUNC had jumped overboard. That is the official statement I made. I subsequently added a second sit rep where I said that, after the SUNC man-overboard incidents had taken place, 14 had jumped or had been thrown overboard and they had all been recovered, and that I now maintained some semblance of control. CERTAIN MARITIME INCIDENT CMI 226 SENATE-Select Tuesday, 26 March 2002 Those are the two official sit reps that were provided-one very early on the incident and one at the end of that incident. There was certainly one telephone conversation, and possibly two telephone conversations, in that time frame. The brigadier's timing of, I think, 7.20 India kilo time would make it 4.50 in Golf time at Christmas Island. At 4.50 in the morning, the boarding had been effected some eight minutes earlier. So Adelaide's boarding party had been inserted and in the subsequent eight minutes events had taken place and a phone call-if that 7.20 time frame is correct-had taken place. That is the time that the information was provided about them threatening suicide, waving sticks and being clearly not impressed that we had boarded them. I think, shortly after that, one person went in the water, and I believe it was a male. So that is the first time a conversation could have taken place. I would have to go through the statements provided by the boarding team. I do not recollect whether those early statements make reference to children. Senator FERGUSON-But the references that I make, Commander Banks, are the refer- ences that are in your own statement here. What we are concerned about is the conversation you had with Brigadier Silverstone. Cmdr Banks-I am coming to the second part of that. I do not know when the conversation took place, because if it was 7.20, in accordance with the brigadier's notes-in his statement- then it was 4.50 in the morning. If it is the conversation I recollect, where children were involved, that conversation would have taken place at about six o'clock Golf time zone at Christmas Island, which would have been about 8.30 India Kilo-Darwin time. That event sticks in my mind, because I clearly saw a man take a child out of the coach-house, put her on top of the coach-house, dress her in a life jacket and, over a period of time, take her over to the starboard guardrail and hold her over. The boarding party statements, I believe, talk about that event. Certainly conversations with the ship's company talk about them interceding in that event to deter the Iraqi man, whom we assessed to be the father-but that is not proven-and vocally encouraging him not to do that and to take the child back inboard. The child was taken back inboard and two other Middle Eastern, or Iraqi, men assisted the man and the child back into the coach-house. Thereafter, the boarding party retained effective control of the situation. One more man overboard event, which was more a falling into the water than a jumping or a throwing into the water, took place and events stabilised. My recollection of the conversation is that I discussed the child being threatened with being thrown overboard. But I have gone to great lengths to say that my recollection is such that I cannot recall the detail of all those conversations with any veracity. There was a lot going on. Senator FERGUSON-I understand there was a lot going on, which is the reason- Senator JACINTA COLLINS-You mentioned earlier another report about children in the water. Can you take the rest of the committee to that purported report? Senator FERGUSON-I have quoted two incidents from Commander Banks's statement, particularly the one in which it says that a second wave of six or so jumpers-and this is from the ship's company- Senator JACINTA COLLINS-The jumpers-not in the water. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 227 Senator FERGUSON-Yes-certainly entered the water. It advised that there were some men, some boys and some children and that the reports of the number going into the water varied greatly. The question I really want to ask you, Commander Banks, is in relation to the telephone conversation. If your boarding party had reported that to you, and you would have no reason to doubt the accuracy of their report, and if the sailors on board the HMAS Adelaide were at the same time reporting that there were children in the water, isn't it highly unlikely that, if you were having a conversation with Brigadier Silverstone at that time, you would ignore those reports from your boarding party or your sailors and not relay that information? Cmdr Banks-To the contrary, it is quite possible that I would have relayed that conversation-those sorts of words-but I have no recollection of having done so. Senator FERGUSON-I take you to a couple of other matters you raised last night. One is that you talked about the issue of 24 October, I think it was, when you were visited by the Min- ister for Defence, or was it the Prime Minister? Cmdr Banks-Both. Senator FERGUSON-It was when you were farewelled, and you said that the events that occurred on 6, 7 and 8 October were not even discussed. Isn't it simply a fact that at that time, in the height of an election campaign, this simply was not an issue? Between the end of that weekend in October and 7 November, the issue was not raised by either the opposition leader, as part of an election campaign, or the government as a particular issue, so why would you have expected that the issue should have been raised on that visit on 24 October? Cmdr Banks-It was an issue in my mind. Senator FERGUSON-Yes, but not in the public's mind. Cmdr Banks-In my mind, I had seen reports that were inaccurate. If the Prime Minister- Senator FAULKNER-I am sure it would have been if they had known. Cmdr Banks-or the Minister for Defence had asked me questions about Operation Relex, I would have had answered those, but I was not going to go seeking the conversation. Senator FERGUSON-But the issue had not been raised by either the Leader of the Opposition or anybody in an election context at that stage? Cmdr Banks-I believe it was still being discussed in the media in that period. I was aware that what had been reported around the time was not accurate, in my mind, and that that had not been corrected publicly. Senator FERGUSON-You also said last night that on the way-I presume you mean on the way to the Stirling-you briefed your crew that the matter of the 7th and 8th would eventually go, I think the words you said were, to a joint standing committee or a committee of inquiry. What made you brief your crew when, as I said, at this stage it was not an issue in the CERTAIN MARITIME INCIDENT CMI 228 SENATE-Select Tuesday, 26 March 2002 context of an election campaign until 7 November? Why would you brief your crew that this matter would eventually go to a joint standing committee or an inquiry? Cmdr Banks-I did not brief the crew; I briefed some of the officers. Senator FERGUSON-Some of the officers? Cmdr Banks-Some of the officers-my PWOs in particular, and the officers I deal with on a routine basis. That comment was made early on in Operation Relex in the 8, 9, 10 October time frame. That comment was based on my previous time in Canberra and also on the fact that I viewed this as a pretty significant watershed event. I had no recollection of an event where people had gone in the water and such a number of 223 had to be rescued. Call it a gut instinct, I viewed that this was not going to be an issue that was quickly wrapped up and put away aside. Senator FERGUSON-So you thought that you should brief your crew? Cmdr Banks-I did not brief the crew. Senator FERGUSON-Sorry, your officers. Cmdr Banks-I spoke to some officers, in a conversational sense, of a prediction: `Guys, I think this is going to be a big deal.' Senator FERGUSON-As Commander of the HMAS Adelaide, were you aware of the other SIEV incidents that occurred during that period of time? Cmdr Banks-I was aware of SIEV3, because I had been given access to HMAS Warramunga's boarding reports and her post-operation summaries with a view to try and learn the lessons learnt from that experience so they were not repeated in subsequent events, were there to be more SIEV incidents. The other SIEV incidents that took place I was unaware of. Senator FERGUSON-So you were not aware that there was in fact a child thrown overboard from one of the SIEVs? Senator JACINTA COLLINS-That was later, Senator. Senator FERGUSON-Yes, I know it happened later. Senator JACINTA COLLINS-How would he be aware of it? It had not occurred yet. Senator FERGUSON-Senator Collins, you will get a chance to question later. We have been waiting 4½ hours. Your side of politics has had a chance. Senator JACINTA COLLINS-I have been waiting too. CHAIR-Order! CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 229 Senator FERGUSON-So, in other words, even while you are on operations elsewhere, you never received any information about the activities that were taking place? Cmdr Banks-Again, to put it in context, Adelaide chopped into Operation Relex on, I think it was, 19 September and I chopped out of Operation Relex on 11 October. When I chopped in I also transferred into the communications loop for Operation Relex and when I chopped out I effectively also removed myself from the communications loop. There is a huge volume of message traffic in relation to each operation and if you kept that pipeline open for each operation you would just over inundate yourself with information. So after 11 October-and certainly after 14 October when we got alongside Stirling-Adelaide was no longer in receipt of joint task force 639.0 related message traffic. Senator FERGUSON-In your opening statement you went to great lengths to say that you make your statement voluntarily, of your own volition, and that you have not been coached, in- structed or directed-direct or implied. It is unusual, I think, in a statement to start in such a de- fensive mode when in fact we do not ever expect anybody that gives evidence here to give anything other than evidence of their own volition or not to have been coached or to have been instructed or directed, so I wondered why you saw it necessary to put that in your opening statement. Cmdr Banks-As I said earlier, my own nature is to be defensive. That would be indicative of that. I have been made aware over a period of time that this is an extremely sensitive matter. The very fact that I am here would suggest that it is a sensitive matter. I wanted to make it clear that I, as the junior member of the chain of people involved in this incident, have not been instructed, coached or given riding instructions in any way other than to open with a straight bat-along the lines of when it was raised there in the Hansard record that Admiral Shackleton's recollection of a conversation is different from mine. I wanted to make it clear that I was making my own statements and I was not put in a position where I had to follow a party line. Senator FERGUSON-I am conscious of the time and I know that Senator Brandis wants to follow up one of those questions. Senator BRANDIS-I have one question arising directly from what you just said, Commander Banks. You do not say that you have ever been put under any political pressure, do you? Cmdr Banks-No, absolutely not. Senator BRANDIS-I only ask because that assertion was made about you in the press this morning, so I wanted to give you the opportunity to clarify your position. Cmdr Banks-The only pressure that I am under is self-induced pressure. Senator BRANDIS-Thank you, Commander Banks. Senator FERGUSON-I am conscious of the time, Chair; you said 12 o'clock so I will stop there. CERTAIN MARITIME INCIDENT CMI 230 SENATE-Select Tuesday, 26 March 2002 CHAIR-I am conscious too that you are leaving shortly, Senator, and that you will not be around this afternoon, so I will indulge you if you have got anything further. Senator FERGUSON-No, I am quite happy to stop there. Senator Brandis can ask further questions. CHAIR-In that case we have come to the lunch break. Commander Banks, thank you very much for your attendance but we will require you, unfortunately, after lunch. Proceedings suspended from 12.01 p.m. to 2.03 p.m. CHAIR-Before we commence questioning, there are a couple of announcements that I wish to make. Firstly, in regard to the program, at this stage-after having had the benefit of a private meeting of the committee-it would be our desire to finish your evidence this afternoon, Commander Banks, although looking at what members of the committee believe would be the amount of time their questions may take, the probability is that we may not complete your evidence this afternoon. If that does create a problem, perhaps you might let us know about that. We will need to give thought to how we do complete your evidence if we do not finish this afternoon. I reiterate that we would like to if we can. What is there about that confusion that is clear? Not very much, but we will see how it unfolds. Secondly, I wish to announce our approach to the release of submissions to this committee. This committee has received a number of submissions, and submissions delivered to the committee will all be released as of now. The witness statements provided by the Department of Defence as attachments to the Powell report and the Bryant report contain in some parts information which is not necessarily germane to the statement, which could-I put it no higher than that-mean that sensitive material gained public currency. It is not our desire to enable that to occur and, with the assistance of the defence department, those references are being removed. It is my understanding that those statements have been through the office of the Minister for Defence who has ensured that a check has been made by the individuals who have signed off on those statements as to whether they can agree with those statements being released to this committee. I understand that, yes, they can be. We have made a decision to release those witness statements-and there may be questions based on them this afternoon-but only after we are satisfied that no sensitive material, which should not be in the public arena, would be collaterally released. It may be, therefore, that those statements are not released and made available to the public until some time tomorrow. It may not be logistically possible to complete the editing that is required before then. Thirdly, the category of document which I think we are relatively clear about-but nonetheless we want to be careful about, and therefore I raise it-is the logs that you, Commander Banks, tabled yesterday and of which the committee now has a copy. My understanding is that they can be made publicly available but I do seek advice from you on that. Whatever advice you offer, we will respect. Cmdr Banks-I would like to take that on notice. CHAIR-Okay, that is fine. Those logs will not be released until such time as we can hear your reply. This hearing will close at 4 o'clock today. It is a pity that we have to be so decisive but the vicissitudes of a one-airline country mean that people will not be able to catch planes CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 231 and we will be inquorate, probably, if we do not do so. It is best to face that reality so we will be closing at four. As I said at the beginning, it is our desire to try to complete your evidence today if we can. Senator BRANDIS-Commander Banks, let me start by reading you something that Admi- ral Shackleton said to the Senate estimates on 20 February this year and which he repeated in his opening statement yesterday. He was talking about the phenomenon sometimes called `the fog of war' which I assume is an expression you are familiar with. Cmdr Banks-I am. Senator BRANDIS-His description of the fog of war phenomenon was this: It is related to the reality that everything is real but it is not real. You are trying to pull threads and strands from many miscellaneous and sometimes disconnected information flows. You are trying to build a puzzle from many disconnected pieces. Sometimes the pieces fit accurately, sometimes they do not. It is fair to say that, often as not, you are dealing with millions of shades of grey and it is only as events start to get to a point of culmination that they start to form up into a real pattern, and then sometimes it disintegrates again as the events change. This is constantly moving and going up and down all the time. The commanding officer has to make hypotheses, judgments and calls based on what he sees at the time. It is never absolutely right; it is never absolutely wrong. Is that something that you can relate to in relation to your experience on 7 October with the SIEV4? Cmdr Banks-I consider Vice Admiral Shackleton's statement 100 per cent accurate. The fog of war is a recognised phenomenon. I do not dispute what he has said there. In my own view, it is an accurate statement because I myself am not absolutely sure what I did or did not say. What I am sure about is what I did see. My statements have been tendered and have been cemented with the passage of time based on the additional information provided by the 15 formal witness statements that were provided. Senator BRANDIS-Sixteen. Cmdr Banks-There were 15 witness statements which were provided that say there was no child thrown overboard and one witness statement that says a child was possibly thrown overboard. Senator BRANDIS-We will come to statements in a moment, Commander Banks. CHAIR-I think it actually said, `I believe a child went overboard.' Cmdr Banks-I think that is a statement from Gerrits, who said, `I believe a child went overboard.' Senator BRANDIS-The witness statements are obviously something that has, as you have told us, influenced your thinking and we will take you to those-I will and Senator Mason will-in the course of this examination. Do I understand from your answer that you adopt that descriptive account of what the fog of war means to a man who was actually on the scene and in command of a highly mobile situation? CERTAIN MARITIME INCIDENT CMI 232 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-I accept that statement. Senator BRANDIS-I want to take you, first, to your statement to the Powell inquiry. I think you have a copy there. Cmdr Banks-I do. Senator BRANDIS-The first page of the copy that I have been provided with is a letter with the emblem of the HMAS Adelaide on top. It is addressed to Major Powell from you. That is, I suppose, the covering letter. Then a couple of pages in there is a longish document entitled `Scoping questions in the routine inquiry into Operation Relex: The interception and boarding of SIEV4 by HMAS Adelaide'. Do you have that there? Cmdr Banks-Yes, I do. Senator BRANDIS-Let me take you, in particular, to about halfway down the page-that is, the first contact on 6 October between the Adelaide and the SIEV4. Am I right in understanding that the first contact was in fact advised by an Orion aircraft? Cmdr Banks-Yes, it was. Senator BRANDIS-And the first report, as I understand your statement, that was received that the personnel on board were all wearing life jackets came from the crew of the Orion aircraft? Cmdr Banks-Yes, it did. Senator BRANDIS-And that is something that when you made visual contact with the SIEV4 you yourself observed? Cmdr Banks-No. Adelaide long range RHIB made contact with the SIEV. Adelaide did not make contact until first light on 7 October-Adelaide the ship did not; the RHIB made all the contact before that. Senator BRANDIS-Let me go back. We will take it in two phases. When the RHIB first made contact they in due course reported to you that they had observed what the Orion crew observed-that is, the people on the SIEV4 were wearing life jackets? Cmdr Banks-That is correct. Senator BRANDIS-And you observed it when you first saw it? Cmdr Banks-That is correct. Senator BRANDIS-In the last paragraph on that page you say that just about all personnel seen, at least 80 per cent, were wearing life jackets. Is that your recollection? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 233 Cmdr Banks-That is the information that was provided to me and I have tabled in the statement. Senator BRANDIS-And you adopt that, do you? Cmdr Banks-Yes, I do. Senator BRANDIS-The Adelaide did not respond to a distress call from SIEV4, did it? Cmdr Banks-I would like to answer that question cautiously. Senator BRANDIS-Well, you do not say it did. Cmdr Banks-Define what you mean by `distress' and what time? Senator BRANDIS-When you first made the critical contact of interest-the expression you use; I assume that is a military expression-that critical contact of interest was not made by the Adelaide in response to a call of any kind from SIEV4; it was something notified to you by the Orion aircraft? Cmdr Banks-That is correct. Senator BRANDIS-When the RHIB first approached the SIEV4, the RHIB was not responding to any distress call from the SIEV; it had embarked from the parent vessel, the Adelaide, at your order. Is that right? Cmdr Banks-That is correct. Senator BRANDIS-Then, when the Adelaide drew towards the SIEV4, again, it steamed towards the vessel under your order-not in response to any form of call from the SIEV4. Cmdr Banks-That is correct. There were no calls from SIEV4 on the radio. Senator BRANDIS-When you sighted the SIEV4-and I now mean you-your statement, in the third last line on that page, reads: Adelaide determined the vessel was seaworthy and that an in extremis or safety of life at sea (SOLAS) situation was not evident. Was that a judgment you made when you saw the SIEV4 for the first time? Cmdr Banks-The judgment was made on the information provided by the boarding officer and the executive officer who were embarked in the RHIB. They conveyed back to me in the Adelaide, a distance of six to eight miles away, that it was their opinion that this was the situation. I accepted that advice and communicated that in formal sit reps. I had not physically seen the SIEV4 myself, other than through long-range binoculars, which are not very clear. I did see it in darkness at about two or 2.30 in the morning as we approached it, but in daylight the first occasion would have been five o'clock in the morning. CERTAIN MARITIME INCIDENT CMI 234 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-Let me gather these threads together. Your contact was not contact made in response to a distress call. The first contact of Adelaide crew with the SIEV was con- tact by crew in a RHIB that you had initiated, and they reported to you that there was no in ex- tremis or SOLAS situation-that the vessel was seaworthy. You accepted that advice. Was that also the view that you independently arrived at when you first had visual contact with SIEV4? Cmdr Banks-Your statements are correct. The boarding party did that and, when I saw the vessel myself, I was happy that it was seaworthy. Senator BRANDIS-That is all that I wanted to establish. Since this vessel, in the professional judgment of you and your officers, was a seaworthy vessel not evidently in distress, did you wonder why 80 per cent of the people on it were wearing life jackets? Cmdr Banks-Yes, I did. Senator BRANDIS-Did you arrive at any views about that? Cmdr Banks-This was beginning to fit into a pattern of advice we had received beforehand that indicated that these people would change their modus operandi and would endeavour to generate a safety of life at sea situation where we would be forced, in the worst-case situation, to embark them all on board and hence have responsibility for them. Senator BRANDIS-Let me stop you there. You were half expecting this? Cmdr Banks-I think I said in my statement that I was `beginning to situate the appreciation'. Senator BRANDIS-Yes. Can you tell us where the advice that you had received came from? Cmdr Banks-From the intelligence briefings and some of the message traffic that preceded this operation. Senator BRANDIS-These were intelligence briefings that you, as the commander of the Adelaide, received from naval authorities prior to, or in the course of embarking upon, this particular deployment. Cmdr Banks-After we had embarked on this patrol, we had received signal sit reps, intelligence sit reps and some conversations with the commander that had intimated that we were entering a time when the modus operandi of the potential illegal immigrants had changed and we should expect the unexpected. Senator BRANDIS-When you say modus operandi, `modus operandi', of course, means `method of operation'. So, for there to be a method, there must be a pattern, I suppose. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 235 Cmdr Banks-We were seeing a change from the transition from the more traditional route of people smuggling from Roti to Ashmore Reef, and we were seeing the use of transit corridors from Sunda Strait to Christmas Island. Senator BRANDIS-Cutting to the chase, it amounts to this: the modus operandi that you were anticipating was that these people would create a SOLAS situation in order to compel a naval ship to rescue them. Is that right? Cmdr Banks-That is largely correct. That is why we had prepared- Senator BRANDIS-When you say `largely', would you like to qualify it in any way? Cmdr Banks-That was one of the scenarios that could have been generated. The end state would always have been a SOLAS situation where we were rescuing people. Whether they abandoned their ship, they sank their ship or they were found afloat, it would have been a recovery into Adelaide. That is why we had developed the embarkation plan, which we signed on 29 September. At that stage I had the plan released. It concerned how to embark these people in that safety of life situation or, indeed, a containment situation. It had taken several days to develop that plan. So, from late September I had had that in my mind. Senator BRANDIS-Thanks, Commander. Now, the SIEV3 incident-which, according to the document that Air Vice Marshal Titheridge produced for the minister, was on 16 September, and was the first of the sequence of these events, and the only one immediately prior to that concerning the HMAS Adelaide-suggests that not only were you expecting or anticipating this, but you had actually developed a contingency plan because it was the very thing you were expecting. Cmdr Banks-It was the end state I did not want to have, but it was the most likely outcome. Senator BRANDIS-Thank you. You also say in your statement to Major General Powell that you saw a small child-an infant-holding a sign that read `SOS' at a time when the vessel was apparently seaworthy. Was that consistent with the expectation you had that the game, if I can use that expression, of those in control of this vessel was to create the SOLAS situation? Cmdr Banks-Yes, it was. The boarding party did not convey that piece of information straight away. That was a piece of information that came out slightly later, and it was the cause of some concern because that jigsaw piece, using Admiral Shackleton's analogy, was quite important, and it was not conveyed until well after the event. But, in any case, the boarding party, which had been supplemented by the XO to give it a more credible experience, was happy that the vessel was seaworthy. As I said, it was transiting south south-east at eight knots, which was indicative of a vessel that is `seaworthy'. Senator BRANDIS-Are you able to say-perhaps you are not-whether eight knots, in those conditions and in that swell, would have been a reasonable speed for a vessel of that type, in that condition? Cmdr Banks-It was very reasonable. It was six to eight knots, but it was more than reas- suring that the vessel was fine. CERTAIN MARITIME INCIDENT CMI 236 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-To put it simply, if it had not been seaworthy, it would not have been travelling at that speed in the manner in which it was appearing to proceed. Cmdr Banks-That is my professional judgment on it. Senator BRANDIS-I want to come to the circumstances of the apprehension of the SIEV. As I understood your evidence, a boarding party was embarked and the vessel was taken under tow; is that right? Cmdr Banks-There was a significant time difference. Senator BRANDIS-Remind me, Commander, when roughly was the vessel first taken under tow? Cmdr Banks-Late afternoon on the 7th. Senator BRANDIS-I am sorry; I am getting ahead of myself. Come back then to the circumstances in which the so-called `child overboard' alleged incident occurred. It was early in the morning of the 7that, wasn't it? Cmdr Banks-That is correct. Senator BRANDIS-This event commenced about half an hour before sunrise, but as you have told us and as we can see from the photographs, in circumstances of perfect visibility and light; is that right? Cmdr Banks-That is correct. The first man overboard was at approximately 0506G. Sunrise was 0540G. The series of man overboards commenced at 0543 and ran until just after 0600. Senator BRANDIS-At the time of the first man overboard incident, in your professional judgment, was there any change to the seaworthiness of the vessel? Cmdr Banks-That was the first occasion that I had seen the vessel. I saw the vessel with my own eyes in the hours of darkness at about 0230 to 0300. As we closed to prepare the interception, the warning shot and the boarding phase, I was able to see the vessel for the first time. At that stage, I was not concerned with its seaworthiness. Senator BRANDIS-Was it an issue to which you directed your mind at that time? Cmdr Banks-I was not concerned about its seaworthiness. I had formed the opinion that this vessel was continuing to transit at speed. It was maintaining a steady course and speed, and I had no concerns about this vessel. With twilight and dawn coming, I was able to see the vessel through natural light and I continued to have the opinion that the vessel remained seaworthy. My attention was drawn to the water which was occasionally coming out over the gunnels and through the deck which indicated the vessel was taking water. Clearly, the vessel was overladen which was of concern but it continued to make speed and I was quite happy with it. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 237 Senator BRANDIS-I am a landlubber, but I take it that a vessel taking water does not of it- self demonstrate that it is not seaworthy? Cmdr Banks-No. Senator BRANDIS-Particularly a leaky, old, overloaded vessel like this-it has bilge pumps and so on. The fact that it may be taking some water is perfectly consistent with seaworthiness as long as that water is being pumped out at the same time. Cmdr Banks-This was free water that was coming onto the deck and washing out. Senator BRANDIS-I see. Cmdr Banks-I had nothing to indicate that the vessel had taken water within its hull. There was no evidence of that. The vessel had a reasonable freeboard. Indeed, based on later experience in the Arabian Gulf, this vessel had significantly greater freeboard than many of the errant Iraqi tankers plying trade which we were asked to board. `Freeboard' is the amount of a vessel's hull above the water. CHAIR-I know the point that is trying to be established-it may well be true-is that it was a leaky boat. We all accept the evidence yesterday from Vice Admiral Shackleton that this boat was nearly derelict or of that nature. These are one-way boats; they are not meant to necessarily go back. From a visual external inspection at distance, you cannot say that it is true that they are seaworthy; you can only say that they appear to be seaworthy, can't you? It depends on how the pumps work and what the planking on the side of the hull exposed to the sea allows in by water and things of that nature. Cmdr Banks-Both statements are correct, and I can see where you are both leading. Senator BRANDIS-We are leading wherever you want to take us, Commander. Cmdr Banks-The vessel was not in distress; however, the vessel was also not a Lloyd's seaworthy vessel. For the conditions it was in and for what it was trying to do, I did not see the need to commence action to embark these people. Senator BRANDIS-You have said in your report that it was not in extremis and that there was not a SOLAS situation. You are completely comfortable with that evidence, aren't you? Cmdr Banks-I am. If you ask me, say, to lodge it on Lloyd's register- Senator BRANDIS-No, I did not ask you that. To put it really simply, it was not sinking, was it? Cmdr Banks-No. Senator BRANDIS-All right. You say in the telex of 11 October, which is incorporated into your statement to Major General Powell-unfortunately, it is not paginated- CERTAIN MARITIME INCIDENT CMI 238 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-Is that the signal? Senator BRANDIS-It is a signal, yes. `My own signalled statement also sheds light, as follows...' Do you see that? Have you got that bit? CHAIR-What page are you on? Senator BRANDIS-It is not paginated. CHAIR-I know, but how many pages in front are we? Cmdr Banks-We are talking about the seaworthiness of the vessel and that it subsequently sank? Senator BRANDIS-It is seven pages beyond the page that I was taking- CHAIR-`You should also read for context...' Is that the first sentence at the top of the page? Senator BRANDIS-`...existed, SUNCs were not to be embarked in Adelaide' are the first words on the page. Have you got it? All right. I want to locate where you were at the time of the man overboard incident. You say in numbered paragraph 3 of the telex: I ... HAD FULL VIEW OF THE EVENTS AS VIEWED FROM APPROX 200-300 YARDS AT AN ELEVATION OF 12 METRES. Do you see that there? Cmdr Banks-I recollect that statement and I see it written here. Senator BRANDIS-That is the position, isn't it? I quote: THE SIEV WAS ON THE STBD BOW-BEAM OF THE ADELAIDE AND WHILST I HAD AN UNOBSTRUCTED VIEW OF THE SIEVS PORT SIDE, I COULD NOT SEE THE VESSEL'S STBD SIDE. Cmdr Banks-That is correct, and you would see that from- Senator BRANDIS-And you can see that from the photos. Cmdr Banks-the photographs. Senator BRANDIS-Okay, so those were the visual conditions in which you observed the events that we are about to explore of the man overboard incident? Thank you. Cmdr Banks-To clarify one point of context, I had also seen the starboard side, if that is from the seaworthy distress side. I then repositioned myself to the port side, when the subsequent events took place. The boarding party were actually stationed on the starboard side CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 239 of the SIEV and the practice was to have both sides of the vessel effectively covered or under surveillance throughout. Senator BRANDIS-So, you had seen the starboard side and you were around now viewing the port side because you had repositioned the vessel, and whatever you saw you saw from the port side of the SIEV? Cmdr Banks-Yes, I did. Senator BRANDIS-You were on the bridge, I gather? Cmdr Banks-I was on the bridge wing. Senator BRANDIS-And you were doing all these things: you were in command of the situation, it was a highly mobile situation and you had many things-events fast happening upon the heels of one another-to deal with? Cmdr Banks-Not at that stage. Senator BRANDIS-As the situation unfolded you did, though, didn't you? Cmdr Banks-Again, to frame the context of it, we had been up for some time; it had been a busy night; it had been a very interesting night. By first light, I had formed the view that the drama of the night had abated and there was now a period of calm. Senator BRANDIS-Sure. Cmdr Banks-Daylight had come, I felt my boarding party was on board, I had contained the situation and there was almost a pause as if to say, `What next?' And `what next' was to unfold. Senator BRANDIS-Commander Banks, I am not going to ask you any more questions about seaworthiness. I think we have established that, at the time the so-called man overboard incident occurred at around sunrise on the 7th, you had satisfied yourself that in your professional judgment the vessel was not sinking and that was also the professional judgment of your officers? Cmdr Banks-That is correct. Senator BRANDIS-You are looking at it from its port side. Isn't it the case that, when the people on the boat started entering the water, they entered the water from both the port and the starboard side and some of them entered from the starboard side-that is, the side that was be- yond your view? Cmdr Banks-That is correct. CERTAIN MARITIME INCIDENT CMI 240 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-Indeed that is what you say on the next page of the report about half- way down. You say: UBAS WERE ALSO ENTERING THE WATER FROM THE VESSELS STBD SIDE OUT OF MY VIEW ... Then you say you later saw `heads bobbing'. So I am sure you will accept, Commander- indeed, you say so in your own words-that there were occasions when people entered the water and you did not see them entering the water. Cmdr Banks-That is correct. About half jumped from the coach-house or the forward part of the boat, where you could see them. The other half entered the water and were seen as they came clear, which was why there was some doubt about the numbers and my priority became `let's just count the numbers'. Senator BRANDIS-When you first saw the people in the water, as you say at paragraph 9 of the cable, you were surprised. You say: AT ABOUT 0530 I WAS SURPRISED TO WITNESS SEVERAL PEOPLE BOBBING IN THE WATER, PROBABLY SIX OR SEVEN AS THEY CAME CLEAR OF THE SIEVS STERN AND INTO MY FIELD OF VIEW. That suggests to me that when the people first started entering the water you were unaware of it. So your first awareness of the fact that people had entered the water from the SIEV was when you saw them in the water, rather than when you saw them leaving the side of the vessel. Cmdr Banks-There are several pieces of information there. I personally did not see them until they came clear. With the aid of binoculars and my eyes-yes, there are people. Senator BRANDIS-If this helps just to shorten things, I am particularly interested in exploring what you saw. I understand that you arrived at some conclusions on the basis of both what you saw and what was reported to you by others. Senator Mason and I, in due course, will put to you the direct evidence of your crew members, which, as I understand it, forms part of your ultimate conclusions, but for the moment would you restrict yourself to what you saw rather than what was reported to you? Cmdr Banks-I will accept that, but I would like to caveat that with this: my job is actually to fuse all the information together. Senator BRANDIS-I understand that. That is perfectly understood but, in trying to find out precisely what happened, I would like to start by finding out what it is that you saw. Cmdr Banks-If that is the premise, I am happy to continue. Senator BRANDIS-Please do. Cmdr Banks-My attention was brought to this situation because it was reported that people had jumped into the water. `Man overboard!' is a cry you do not like to hear on a ship because it means somebody is in the water. We have preplanned responses within the ship to deal with the recovery of that person. Nominally, it would be a member of the ship's company. It is a mind- CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 241 focusing activity. The report that there was a man overboard drew my attention. It became a significant event because I was now dealing with a situation I had not expected. Senator BRANDIS-By the way, did you identify at that point, when you first heard, `Man overboard!' that that was a SOLAS situation? Is a man overboard situation something lower down the range than a SOLAS situation? Cmdr Banks-If I can answer that in a moment- Senator BRANDIS-Sure. Cmdr Banks-The broader SOLAS situation we may have been anticipating had not eventuated but I was wondering whether this was to be a precursor for that. The man overboard-I think there was one earlier on and the RHIB recovered it very quickly-and then there was a mass-and I use the term loosely-of five, six or seven that went over. I gave instructions that this was not a SOLAS situation where we were going to embark these people on board. We would effect a recovery of these people and we would make sure they were okay and we would transfer them back to the SIEV. I was pretty explicit-implicit-about that statement that they were not to be brought back to Adelaide. Senator BRANDIS-Do you mean explicit or implicit? Cmdr Banks-Explicit-clear, unambiguous. I ordered that they were to be taken back to the SIEV and that did take some time, and they were all in turn returned to the SIEV. Senator BRANDIS-Was the RHIB in the water at the time you first saw the people overboard, or did you order it to be launched after you had first seen the people in the water? Cmdr Banks-Both RHIBs were in the water and had been- Senator BRANDIS-Were they already in the water from the night before? Cmdr Banks-They were in the water from the ongoing activities of the night before through to morning. Senator BRANDIS-I understand. Cmdr Banks-I think one of the RHIBs came back at one stage to get either fuel or some more stores or some food. But, certainly, when the man overboard took place, one RHIB was in very close proximity and the second RHIB was not that far away. Senator JACINTA COLLINS-Can I just clarify a point there? I might be incorrect in my recollection of looking at the log. Didn't this incident occur just as you were looking at inserting the second boarding party, so the second RHIB was just disembarking Adelaide? Cmdr Banks-The second RHIB had been in the water all the time. It had come back to Adelaide to collect stores, collect the boarding party and collect the medic- CERTAIN MARITIME INCIDENT CMI 242 SENATE-Select Tuesday, 26 March 2002 Senator JACINTA COLLINS-It took on board the second boarding party clarifies that. Cmdr Banks-at some stage, and I cannot recollect whether that was before the man overboard or after the man overboard event. CHAIR-I just want to be clear about a safety of life at sea, SOLAS, situation. If someone is in the water-MOB, a man overboard-that is a SOLAS situation per se, isn't it? Cmdr Banks-Yes, it is. I am careful of the answer here. There was an imperative to rescue that person and bring than SOLAS event to closure. CHAIR-But you are distinguishing between the numbers of people and a SOLAS situation that would create the need to bring them on the Adelaide and a SOLAS situation in which you could return them to their vessel? Cmdr Banks-Yes, I am. CHAIR-I think that is implicit, but I just thought that it was worth while clarifying. Another question I have, while Senator Brandis is conferring- Senator BRANDIS-No. I am listening to you too. CHAIR-is about the seaworthiness of the vessel. In your statement you said that it was marginally seaworthy. I do not think that anything that has been adduced here changes that, does it? Cmdr Banks-I would not have wanted to own that boat and undertake that journey, personally. But, mindful of my mission and my responsibilities, I was happy that this vessel was seaworthy for the journey that they had freely embarked on of their own volition. CHAIR-But, in case a connection is made, I just ask this question. The people on board the vessel were wearing life jackets, and some feature has been made of that. If you are sitting on, to use Senator Brandis's words, `a leaky boat', out of sight of land and the bilge pumps are working and water is rising in the hull-it is being pumped out, but nonetheless it is a leaky boat- Cmdr Banks-We did not know that information at that stage. CHAIR-No. But to a landlubber-I do not think these people were seagoing folk-it might just be prudent to put on your life jacket, mightn't it? Cmdr Banks-That would be a reasonable conclusion. To put it in perspective, Adelaide's RHIB crew, our own boat, were all wearing life jackets. CHAIR-That would be normal procedure, wouldn't it? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 243 Cmdr Banks-That is normal procedure for us. But it was unusual for the SIEV SUNCs, and it had not been reported before. Senator BRANDIS-Commander Banks, just glance through the cable that I have been directing you to-I am sure you have read it many times. Is the structure of it meant to be sequential? Are you reporting these things in the sequence in which you recall them happening? Cmdr Banks-My common statement seems to be `to put this in context' but, again, I was busy with a number of activities- Senator BRANDIS-I am sorry. Perhaps you misunderstood me. This cable is written on 11 October, which is four days after. When you were writing it on 11 October, were you trying to convey sequentially what you remembered happening on 7 October? Cmdr Banks-On 11 October I was busy. We were preparing to enter Christmas Island to disembark the SUNCs. Based on the previous events, that disembarkation had not taken place, and I had no guarantee that that would continue on this occasion. I did a data dump, purged what was in my head on to the laptop in my cabin and then set about to format it into the text that you see here. It is largely a sequential and what I would consider a logical flow, although I will stand by for comment or criticism on that. Senator BRANDIS-I am not trying to hold you to some sort of council of perfection. We all know that memory is an imperfect thing. All I want to know is: when you wrote this down, what you were trying to do-as well as you could remember four days later-was give a sequential account. Cmdr Banks-Largely. Senator BRANDIS-All right. We have heard a good deal about the event you describe in paragraph 12 of the little girl in the pink jumper being held overboard. You estimate that she was five years old, and it was, as you tell us, your instruction to the RHIB crew to intercede to prevent her being thrown overboard. In the cable, you reported: At the time I assessed it was his intent- that is, the man holding her- to throw the child overboard. Do you see that? Cmdr Banks-Yes, I do. Senator BRANDIS-You said that half-way down paragraph 12: At the time I assessed it was his intent to throw the child overboard. You go on to say: CERTAIN MARITIME INCIDENT CMI 244 SENATE-Select Tuesday, 26 March 2002 The boarding party was directed by me to take firmer control and they subsequently escorted the man and child clear- You there report that you saw something happening, and you obviously made a call, a judgment in your own mind, as to what you thought was happening, and you issued an order-you actually ordered the RHIB crew to intercede. Is that a fair assessment of what you are there reporting? Cmdr Banks-That is a fair assessment. That took place over a period of several minutes. I am no judge of children's age. Senator BRANDIS-I am not going to ask you anything about that. Cmdr Banks-That was formed based on the opinion of other people around. Senator BRANDIS-We have a variety of statements-whether she was five, four, three or seven, it was a young child. Cmdr Banks-It was clearly unusual to see a child being dressed in a life jacket in an exposed separate area and being taken to the guardrail. Senator BRANDIS-What I am interested in is that you state quite firmly that, at the time, you assessed it was the man's `intent to throw the child overboard'. What I am interested in is giving you the opportunity to expand upon all of the considerations that led you to form, or to make that assessment, at the time. Cmdr Banks-The word `throw' could be a euphemism for `put', `place', `drop', `lob' or any number of things. Senator BRANDIS-Cause to end up in the water. Cmdr Banks-It was clearly an unusual intent by that man to dress that child and take it to that position and put her in that position. Senator BRANDIS-It is still your position that but for your order to the RHIB crew to intercede that is what would have happened? Cmdr Banks-And without the intervention by that RHIB crew. Senator BRANDIS-Yes. Cmdr Banks-I think I mentioned in my statement yesterday, where I adlibbed, that the verbal exchange between the boat coxswain and the man left the father, or the person I assessed to be the father, in no clear doubt that the action he was doing was not that of a Western gentleman. If he were here, he would express it slightly differently, but you would probably get the intent. Senator BRANDIS-You might be chastised by Senator Bartlett for being politically incorrect if you talk about the West, Commander Banks. In paragraphs 13 and 14 of your CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 245 statement-Senator Ferguson asked you some questions about this too-you report a second wave of six or so jumpers entering the water. Then you say, in paragraph 14: Throughout, my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. Would you please expand, as well as you are able, on these reports of men, boys and children entering the water? Cmdr Banks-Are you happy for me to comment now, outside my own focal viewpoint and introduce other people- Senator BRANDIS-I want you to tell us everything that was said to you and everything you saw. That is right: both sources of information-direct and hearsay-which caused you four days later to refer to `men, boys and children entering the water'. Cmdr Banks-I have already recollected for you the things I saw. I said earlier that I was assimilating information that was coming in from a number of sources. The EOTS video camera was being viewed by the operator, Able Seaman Gerrits. Senator BRANDIS-Was that Wade Theo Gerrits? Cmdr Banks-Able Seaman Gerrits. It was also being viewed on the bridge on a remote monitor and also in the operations room by the PWO and other people on another remote monitor. They were communicating verbally on what we call 10MC-a microphone system- up to the bridge. Senator BRANDIS-Let me interrupt you: was the 10MC microphone system a system that was constantly on in your ear, as it were, so you could hear all the talk, or did you have to switch it on and off? Cmdr Banks-It was a loudspeaker and a microphone. Senator BRANDIS-I see. You could hear all the voice traffic over the loudspeaker? Cmdr Banks-I was not wearing a headset at any stage. I physically needed to move around. I was relying on information that was coming over the speaker or was being conveyed verbally in my audio range. There are three monitors for the EOTS, so there were at least three other people watching the EOTS footage. Senator JACINTA COLLINS-Where were the three monitors? Operations room, bridge and- Cmdr Banks-There was a second one in the operations room. They were conveying their alarm at what was happening over 10MC. I believe Able Seaman Gerrits would have been on an internal headset and he would have been conveying that within the ops room and that would have been relayed up. CERTAIN MARITIME INCIDENT CMI 246 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-But you were not wearing a headset? Cmdr Banks-I was not wearing a headset. Senator JACINTA COLLINS-We understood he was on the bridge. Cmdr Banks-He may have been on the bridge. There is an EOTS remote on the bridge, which has a remote control station and a monitor. There is a second monitor on the bridge, which was in my viewing area. There is the EOTS primary station in the port aft corner of the ops room, which is where I though Gerrits was, but I am happy to stand corrected on that. Senator BRANDIS-I do not want you to be deflected from this answer. Cmdr Banks-I was hearing the information from people watching the EOTS. I was hearing information from people with binoculars adjacent to me on the bridge and on the GDP above me, also relaying information on 10MC. Senator BRANDIS-What is the GDP? Cmdr Banks-The gun direction platform, which is about three metres above where I was standing. They have binoculars as well and were conveying that information. The boarding party were relaying that information by radio, back to Adelaide- Senator BRANDIS-To you directly or to someone else? Cmdr Banks-To both-directly to people on headsets and on loud speaker to me. Senator BRANDIS-You were on the bridge yourself, so this was all in front of you and you were seeing things with your own unassisted sight? Cmdr Banks-Yes, I was. Senator BRANDIS-Were you using binoculars? Cmdr Banks-Yes, I was-and my eyes. I alternated between the two. My job was to fuse that information together. Senator BRANDIS-Before we come to the process by which that was fused, I just want to make sure-I am sorry to take you through this so slowly but I want to get it right. The sources of information to you at the time were what you saw with your own eyes-either assisted or unassisted by binoculars-what you heard other people around you saying or what they told you and what you heard other people saying through the audio system. Are those the three sources? Cmdr Banks-That is correct. CHAIR-What hour of the day did this happen? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 247 Senator BRANDIS-This is at about 6.00 a.m. Cmdr Banks-It is between 5.30 a.m. and 6.00 a.m. Senator BRANDIS-So the process of analysis and distillation that you were engaged in was a distillation of information coming to you in those three ways: what you were told, what you heard broadcast through the sound system and what you saw. Cmdr Banks-Correct. Senator BRANDIS-You were about to proceed, Commander, to tell us what you made of that. Cmdr Banks-My job is to fuse that information and try and clarify it. What I was concerned about was that clearly there was a situation unfolding that was unusual. I wanted to contain it and I wanted to get some accuracy on that information, because I was hearing lots of people saying, `There's another one, there's another one, there's another one,' and I was trying to capture how many `other ones' there were. Senator BRANDIS-By the way, when they said, `There's another one,' I take it that in the speed of the moment they were not saying, `There's another man' or `There's an adult' or `There's a child' or whatever-they were just saying, `There's another one.' Cmdr Banks-The generality was: `There's another one overboard.' Then people would pan their binoculars to try and make a determination. It was the same with the radio reports. You are correct-there was a lot of information coming in. Senator BRANDIS-Sure-and there were two RHIBs in the water at the time. Cmdr Banks-Correct. And I was trying to gather that information to make it an accurate statement-were there 13, 14 or 15; were there children; were there adults; were they males or females? Senator BRANDIS-Not only were you trying to do that, Commander, but you were also at the same time making a series of command decisions rapidly on the heels of one another. Cmdr Banks-Yes, I was. Senator BRANDIS-It was in that context that you had a conversation with Brigadier Silverstone, of which you speak in your statement, in paragraph 18- CHAIR-What page is that? Senator BRANDIS-On the next page, paragraph 18 and 19 of Commander Banks' statement. You might care to read that to yourself, Commander Banks, and then let me ask you a couple of questions about that. CERTAIN MARITIME INCIDENT CMI 248 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-I have read that. Senator BRANDIS-We know that by the time you speak to Brigadier Silverstone, the `holding the child overboard' event-that is the little girl in the pink jumper-has already taken place. That is right, isn't it? Cmdr Banks-No. I think this is the point of conjecture. Senator BRANDIS-It is a point of conjecture. Cmdr Banks-One of several. Senator BRANDIS-So it may be that you spoke to Silverstone before you saw the little girl in the pink jumper being held overboard? Cmdr Banks-If-and I am drawing on the other statements-the time was 7.20 a.m. India- kilo in Darwin, that was 0450G at Christmas Island. If COMNORCOM's notes are correct with the time, then clearly his recollection of that conversation does not fit with mine in that at 10 minutes after the boarding there were no overboard events. Senator BRANDIS-Are you classifying the holding of the little girl in the pink jumper overboard as an overboard event, or are you merely classifying people who end up in the water as an overboard event? Cmdr Banks-I will come back to that earlier part later on. The events that transpired into people entering the water were man-overboards. The events where people did not enter the water, but appeared to be held over or threatened to be put over, did not obviously become `man overboards'. But that would have become a `man overboard', in my opinion, if the RHIB had not intervened. My recollection is that the phone rang during the incident with the girl in the pink jumper. My point was that that is not 0720 India-kilo. That is about 0600G Christmas Island time, which is 0830 Darwin time. That is what I cannot come to terms with-is there an earlier incident, if the Brigadier's time of 0720 is the correct time; or is it an incorrect time, and is it about this incident, about my recollection of those conversations? Senator BRANDIS-If that is right, then your recollection-in paragraph 19, of 11 October, that you discussed the threat to throw the child overboard incident with Silverstone-must be wrong. If it is right that you spoke to Silverstone before that incident occurred then your recol- lection, and your statement that you discussed it with him, must be wrong-unless you are con- fusing two or more conversations with Silverstone, or there was another earlier incident in- volving a child before you spoke to Silverstone. Cmdr Banks-Those are your words. Senator BRANDIS-Do you accept that? If it had not happened by the time you spoke to Silverstone, then you could not have spoken to Silverstone about it, could you? Cmdr Banks-Correct. And that is the whole- CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 249 Senator BRANDIS-And if that is right, then paragraph 19 is wrong. Cmdr Banks-I cannot recollect which conversation took place. I cannot recollect the number of conversations I had that day. It is unusual to conduct telephone conversations in these sorts of situations. I had several conversations during the night on the need to pass detention notices, prepare to board, how to effect the boarding, approval to fire warning shots. I had phone calls from people asking if I had fired warning shots; I had phone calls about the overboards and the life jackets. I cannot recall with sufficient clarity exactly which conversation took place at exactly what time and in what context and the detail of the conversation. Senator BRANDIS-Nobody is asking you to. That is why I was concerned to ask you about sequence, because people can never remember exactly what time things happen. We do not live our lives looking at the clock. But people generally can remember the sequence in which things happened. So if you say that you spoke to Silverstone about a child being threatened to be thrown overboard then obviously that must have happened before you spoke to Silverstone. If it did not, then that recollection must be wrong, mustn't it? Cmdr Banks-It is my recollection that that incident-the holding of the child over the side-took place at around 6 o'clock, which was when Brigadier Silverstone and I had a telephone conversation. I was distracted from that incident to take the telephone call. I maintained some visual continuity with that incident by being on the bridge, inside the bridge structure and looking out through the glass bridge window, which made me two or three metres distant from where I had previously been looking out into the natural light. Senator BRANDIS-Commander Banks, there has never been any suggestion that I am aware of that there was more than one conversation between you and Silverstone at the critical time; that is, in the period between about half-past five and shortly after six o'clock-the man overboard period. Are we agreed on that-there was one conversation between you and Silverstone-or aren't you sure? Cmdr Banks-I cannot say the number of telephone conversations that were had that day. Senator BRANDIS-No, I am not talking about that day; I am talking about at this critical point in the day. Cmdr Banks-In that morning period, but at the time of 0600 when that child over the side in the pink jumper took place, there was only one conversation. To my recollection the brigadier rang me, because it was an incoming call taken on the bridge on extension 110. Senator BRANDIS-Do you remember at the critical time more than one conversation with Silverstone? Cmdr Banks-There were several conversations in that period from the interception of SIEV4 all the way through, but certainly there were several- Senator BRANDIS-No, I am trying to pin you down, you see, Commander. At the- Senator JACINTA COLLINS-Senator Brandis, give it a break. CERTAIN MARITIME INCIDENT CMI 250 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-Be silent, Senator Collins! Senator JACINTA COLLINS-Let the witness answer the question, please. Senator BRANDIS-I am trying to focus the witness's attention on a particular time. Cmdr Banks-I certainly recollect the conversation in the order of 3.30 in the morning, where I was given authority to board the SIEV. I also recollect the conversation shortly after that towards four o'clock in the morning, where I was given approval to fire warning shots. I certainly also recollect a conversation that I probably instigated to report that I had effected that boarding. I also recollect a conversation about the child being held overboard. At some stage we had discussed the threat of mass exodus, this wearing the life jackets-`Stick with it, Norm; let's make sure we stay focused on the mission here', which was to determine that I don't get suckered into a SOLAS early-those sorts of general guidance things. My point is I cannot clearly say which one of those conversations took place with which event. Senator BRANDIS-No, I accept that, and I understand why you have properly limited yourself in that way, but listening to your answer I can still only see that you have a recollection of one conversation at the time of the man overboard incident. There were the earlier conversations about 0400 at the time of the embarkation of the boarding party and so on, of which you have spoken, but while you were watching these people bobbing around in the water, being rescued or jumping into the water in that short period commencing at about 0530, there was just one conversation with Silverstone that I hear you recalling. Is that right? Cmdr Banks-That is the conversation I recollect. Senator BRANDIS-Okay. So there could have been others, but if there were you don't rec- ollect them? Cmdr Banks-That would be a fair statement. I certainly recollect there was a conversation with COMFLOT. Senator BRANDIS-We know you recollect that one, and I do not want you to be more certain than you can be, and quite properly, sir, you are making allowance for the fact that there may have been other conversations you do not recollect. I want to take you back to the sources of information that were coming to you-that is, I think we have established what you saw, what you were told by those around you and what you heard by electronic means. I asked you that question in the context of paragraph 14 of your cable. May I remind you of what it says throughout: ... my boarding party and the other witnesses on the bridge wings were advising- presumably that means advising you- that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. Is that an accurate statement? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 251 Cmdr Banks-That is an accurate statement and that is the classic example of the `fog of war'. My job was to take that information-those jigsaw pieces-and put together the picture that was as factually correct as we could make it. In the subsequent period, I was able to talk to people and get more information and determine that the number of people who were recovered from the boat-the number of people who were recovered in the RHIBs-were then accounted for and returned, that there were no children in those lots, that they were all males- Senator BRANDIS-You are going on to something else now, Commander Banks. I understand that the number of people recovered from the sea is a relevant piece of information that you also had regard to, and I will come to that in a moment. But at the moment I just want to confine myself to the information coming to you on the spot, as it were-that is, directly through your own vision and indirectly through what you were told either by the people speaking to you or electronically. As I read your statement, what you say in paragraph 14 kind of sums up the picture from those three sources at the time. Is that fair enough? Cmdr Banks-At the time I had received all that information that suggested there were a number of people in the water including men, women and children. Senator BRANDIS-Thank you. Cmdr Banks-If I could also add, we spoke before about the sequencing and various things. There is a paragraph there where I clearly say: A SECOND WAVE OF SIX ... CERTAINLY ENTERED THE WATER THOUGH I RECOLLECT THIS MAY HAVE BEEN JUST BEFORE THE CHILD INCIDENT. My point was that I wrote this statement trying not to draw on all the documentary evidence. I tried to lock myself in the cabin and reconstruct this from my own thoughts, knowledge and recollections. Senator BRANDIS-I understand that perfectly. Senator JACINTA COLLINS-Can I clarify one point on 14? We were talking about two meanings at one stage and I just want to make sure that we actually understand Commander Banks' meaning in 14. When you talk about `jumpers' are you actually referring to people reporting people in the water, or people who are potentially going to jump? Cmdr Banks-People who were in the water. CHAIR-Can I clarify a point too, as I have become a little confused. Looking at the photographs that you gave us yesterday-photograph 4, timed between 0540 and 0550; photograph 5, which is 0550 to 0600; and photographs 6, 7 and 8, which are 0550 to 0600-on photograph 4 the washboard is in place and the distinctive feature of that photograph is an adult male on the upper deck putting a life jacket on a child, and the label refers to `Iraqi man and young girl at aft end of the wheelhouse'. The obvious thing about this photograph is that just about everyone on this boat is wearing a life jacket. And here is an adult male putting a life jacket on a child who, prior to that point, was not wearing a jacket-that is true, isn't it? I make that as an observation. That is what the photo shows in any case. CERTAIN MARITIME INCIDENT CMI 252 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-There are a number of people in the foreground who are not wearing life jackets on the main deck of the vessel. CHAIR-The other distinctive feature of this photograph that I want to draw attention to is that the bilge water seems to be coming from the boat is about amidships, although there looks like another pump-out point just slightly after amidships. There is not really a wake or a breaking wave at the bowel indicating that the boat is moving. Is it wallowing in the ocean? Cmdr Banks-To begin with the vessel was underway making way. Towards the latter part of this jumper `man overboard' phase, the vessel was dead in the water, underway but not making way. It was our view that the engine had been stopped by the SUNCs. CHAIR-On some of these photos-photo 5, for example-it looks like it is wallowing slightly to the portside and on later photos wallowing to the starboard side, so it is going backwards and forwards and you are alongside of it. Jumping ahead to photo 7-and this is the point that confuses me-on the portside the washboard is still in place-it comes out in photo 8-but along the side of the vessel there is water streaming from the planking below the level of the deck as well as water coming through the bilge pump hold, is there not? Cmdr Banks-That is correct. CHAIR-All this here. Cmdr Banks-Happy. CHAIR-If you go to No. 8, you can see it much more graphically, and the washboard comes out. It appears to me to be below the level of the deck because the guardrail part of the freeboard-the white and blue coloured boarding-seems to be the lifeline around the edge of the deck. The black part of the hull seems to me to be below decks. I do not know if that is right, but from looking at it, it seems to be the case. The water seems to be coming from below decks. Is it a reasonable hypothesis to say that the hull was filling with water; they removed the washboard; they put the lifejacket on the kid on the upper deck; people began to leave the vessel because it, in fact, was taking on a considerable amount of water and could have been at risk of foundering? Cmdr Banks-It is my understanding that the area of the deck that is painted in dark blue- where that line of the blue and the red is-is where the deck is. CHAIR-So that is above where the water is streaming from the hull? Cmdr Banks-The water is coming out of the hull at the deck level. The blue area is above that deck. I draw that from the for'ard part of the boat. CHAIR-The deck at the for'ard part therefore is higher- CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 253 Senator BRANDIS-Mr Chairman, you did ask that I defer to you because you had some clarifying questions, as I understood it, from my line of questioning. You seem, with respect, to have strayed well beyond it- CHAIR-I did not want to interrupt you. Senator BRANDIS-and I did want to come back to the sequence of events. CHAIR-I realise that. But having the sequence of events in a straight line is one thing; having a sequence of events in panoramic vision is another-and getting the context here right. The question here is: people were leaving the vessel- Senator BRANDIS-Mr Chairman, it is my question period, with respect. I will always, as a matter of courtesy, defer to somebody who wants to ask a question to clarify an answer to a question I have asked. But this does seem to be a somewhat different topic, with respect. CHAIR-Certainly, I will hand the call back to you because it is not my intention to interfere with your line of questioning. But it seemed to me, if we are moving sequentially through these events and making conclusions at particular points of that sequence, rather than me coming back and going through them again later, it might be useful for the inquiry to settle that point. My only point was-and I think it is a reasonable question, and I seek advice-that it looks like the boat is in trouble with water streaming from its decks. One of the few people on board this boat that did not have a lifejacket was the kid on the upper deck. One gets put on that kid; the washboard gets removed; water streams from the vessel's decks. Is it at risk of foundering? That is the question. Cmdr Banks-I am happy to answer that now. The vessel was not considered to be at risk of foundering at that stage. The boarding party was on board and had been on board since 0443. Whilst they were not able to be everywhere at all times in this, they had made an assessment that the vessel was seaworthy. Its engines were running. Its steering was working, although that began to change. They were happy. The two people you can see standing proud in the for'ard part of the boat are boarding party members. If you come to the portside at the orange water drums, the back view there of the person with what looks like green and then black is a member of the boarding party. CHAIR-Yes. Cmdr Banks-They did not report at any stage that the vessel was in danger of foundering. At this stage, they were making their reports-and I will come back to the photos in a second- that the SUNCs were becoming unruly; they were vandalising equipment. There was an awning that was torn off and thrown in the water. The water drum lids were thrown over the side. The washboard was taken up and subsequently returned; it was not thrown over. The situation was becoming unruly but at no stage was the vessel in danger of foundering. Senator BRANDIS-I think you have had your answer. CHAIR-And I think it helps your line of questioning, might I say, Senator Brandis. CERTAIN MARITIME INCIDENT CMI 254 SENATE-Select Tuesday, 26 March 2002 Senator BRANDIS-It does indeed, and I am sorry I intervened. Cmdr Banks-The water was coming out I think as a function of the lolling of the ship in the swell. CHAIR-The wallowing? Cmdr Banks-The wallowing. As it came to stop in the water, it would have then dipped, picked up some water and taken it across the deck, which is not unusual. Senator BRANDIS-Coming back to paragraph 14, I think we have established what the sources of information coming to you were, and we see what, at the time, you made of what was being told to you. Is that right? Cmdr Banks-Yes. I am happy that paragraph 14 is an accurate assessment of the information that was provided to me. Senator BRANDIS-Or, to put it slightly differently, that is an accurate statement of your state of mind at the time. Cmdr Banks-That is correct. Senator BRANDIS-In fact, there is a reference a little earlier in your statement to another piece of information concerning a child in the water, and we pick that up in paragraph 11, where you say this: UBAS- unauthorised boat arrivals, or people- were also entering the water from the vessels stdb- starboard- side out of my view but I could later see their heads bobbing in the water. I received frequent radio reports about these manoverboards and quote possibly unquote heard that children were also in the water. Do you see that? Cmdr Banks-Yes. Senator BRANDIS-I understand from the fact that you have chosen to put `quote possibly unquote' in the text that you are, in a very conscious way, seeking to qualify yourself or to make this a very tentative statement. Can I suggest to you that the fact that you saw fit to record it indicates that, at the time you did record it, you were remembering something. You were not certain about what you remember being told, but if you did not have that in your mind you would not have written it down, would you? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 255 Cmdr Banks-And the same applies to my sit reps. If I did not see it, I would not have put it in my sit reps. If I could put this in context-and it may save some time in the cross- examination-if I could categorically say, black and white, this event took place as recollected by Commander NORCOM, I would. Senator BRANDIS-But he does not recollect anything, because he did not see it. You see, Commander, that is why I am asking these very detailed questions of you- Cmdr Banks-I was about to answer. Senator BRANDIS-It is one thing to say what he remembers you said to him, but it is much more interesting for us to know what you remember seeing or hearing or what were the sources of information coming to you at the time you spoke. What I am trying to do is to deconstruct the event so that we can know, as well as we are able with the passage of time, exactly what your state of mind was at the time of the critical telephone conversation. Cmdr Banks-And I wanted to answer that question about the state of my mind. It almost sounds like I have a problem with my mind. Senator JACINTA COLLINS-You probably feel like you have, by now. Cmdr Banks-The state of mind at 0600 hours in the morning on 7 October was that, yes, there was confusion going on. There was lots of information coming in, and I was assimilating that information and trying to fuse it into a comprehensive picture. This, I believe, I had done at that moment of space and time on 7 October. I had satisfied myself in the subsequent sit reps that I had a handle on the information and was conveying that information to my higher authorities in a succinct and accurate manner by the signals. Senator BRANDIS-Commander, please understand- Cmdr Banks-I was about to clarify that point. When I sat down and wrote the signal chronology summary here, I was in a precarious state of mind. I had believed that I had reported the events clearly. On 9 and 10 October, I was made aware that the information was not so clear. I had discussions with Commander NORCOM, CJTF 639, on the phone. I cannot remember whether it was the 10th or the 11th, but before writing the statements where he spoke to me and said-and I am paraphrasing here-`There was confusion, Norm. I thought you said this; in fact, Norm, I recollect that you said this, and I have taken notes.' I was in a dilemma here. I had my immediate operational commander telling me I said something that I do not clearly recollect saying but cannot categorically deny because I knew that, at the time these events were happening, all of these things were to varying degrees true and were being reported by different people at various instances in time as being true to their recollection or their viewing. I then sat down and wrote this signal as my summary of it, cognisant of the fact that I had said things that I could not recollect with perfect clarity and that my commander had a clearer recollection, in his words, that he had spoken to me, and I paraphrase again, `Norm, you're under a lot of pressure; you're under confusion. Perhaps you really did say something that you don't recollect having said because'-to paraphrase him-he CERTAIN MARITIME INCIDENT CMI 256 SENATE-Select Tuesday, 26 March 2002 clearly recollected that I had said these words. When I constructed this signal, I tried to be as truthful as I could- Senator BRANDIS-Just a moment, Commander Banks. I have not asked you a single question about what you said in the conversation. In fact, I very carefully avoided that because what I want to do is to find out as well as we are able to do exactly what information you had at the time you had the conversation. I will come in a moment to asking you about the conversation itself, you see. Cmdr Banks-The conversation of the 7th or the conversation later? Senator BRANDIS-The conversation of the 7th. Cmdr Banks-The point I am trying to make here is that I gave some outs. Because I had some doubt in my own mind, I put all the information down. Senator BRANDIS-Commander Banks, I think you are being too hard on yourself; I really do. You prepared a report on 11 October, four days after the incident. I think you would agree with me that your recollections four days after the incident would undoubtedly, in the way of these things, have been better than your recollections six months after the incident, as we are now. I do not have a moment's hesitation in accepting that when you wrote this document to form part of an official record you meant to tell the truth. I do not have a moment's doubt in accepting that, when you wrote this document on 11 October, as a professional naval officer you would have been in earnest to ensure that what you wrote down was the truth to the best of your recollection, and where your recollection was imperfect you quite properly, as appears from the text of this cable, qualified your recollection by the use of words such as `possibly'. Please accept that I am not for a second doubting the veracity of any of this, nor am I doubting your veracity for a second. Cmdr Banks-Thank you. Senator BRANDIS-If I can take you back to this cable, which was written four days after the event in an earnest attempt truthfully to record what you saw and what you were told at the time, we see in paragraph 11 that you heard frequent radio reports about man overboards and, as you say, possibly heard that children were also in the water. Then you speak of a different event nearer 0600-as the sequence of this runs, this is evidently a bit later-of the little girl in the pink jumper being held overboard but not thrown overboard. Then, in paragraph 14, in a kind of a summary way, you say: Throughout, my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. At the point at which you spoke to Brigadier Silverstone, you had not had the benefit of the count of rescued people from the RHIBS, you had not had the benefit of reviewing the witness statements of your crew because they had not been taken then. We have here a picture of what was in your mind at the time you spoke to Silverstone. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 257 You make reference to children in three places: the little girl in the pink jumper being held overboard-and it is uncontroversial that she did not go into the water; a report from over the radio, presumably from the RHIB operators, that possibly there were children in the water; and the other report, which says throughout: ... my boarding party and the other witnesses on the bridge wings- these are coming both electronically from the RHIB operators and from other men or women on the bridge wing- ... were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. Those were the pieces of data, as yet unanalysed, in your mind at the time you spoke to Silverstone. Do you agree? Cmdr Banks-That is correct; that is six o'clock-ish. Senator BRANDIS-Let me then go to- Senator JACINTA COLLINS-Senator, before you move on from point 11, just another clarification so that we understand this point. I refer to the qualification, Commander Banks, that you made about `quote possibly unquote heard that children were also in the water'. Senator Brandis alluded to the fact that there must have been something in your mind when you prepared this statement, leading you to qualify things that way-was that in fact that Brigadier Silverstone had suggested to you that there were reports in your mind? Cmdr Banks-That is the point I am trying to make here: I was writing this signal days later, only because the event had become controversial and it needed to be clarified. As I said all along, I do not have perfect recall of exactly what transpired on that day. But I was very con- scious of the fact that my immediate commander was saying that the information I was saying was in contradiction of the information that had been conveyed up the chain and into Canberra, and into government, and that this was now cause for considerable concern and much media focus. Senator BRANDIS-But, Commander, I am sure you are not saying that you, as it were, massaged the evidence here when you prepared this cable. I think we have established that you acted properly and with integrity in preparing this cable to be an accurate account of what you remembered-that is right, isn't it? Cmdr Banks-I am saying that I documented this recollection to the best of my knowledge, cognisant of the controversy that was brewing and the need to not cause that situation to become any worse. When the brigadier had spoken to me on the phone-we spoke about situation awareness, the ability to situate the appreciation of `the fog of war'; all those things-I was saying that it is quite possible that I heard that. I do not recollect it. I do not recollect saying it, but, sir, it is quite possible I did hear it. If you need that to take away to people and say, `Norm Banks told you something that he doesn't recollect and we have taken action,' there is a statement to do that. Equally, I wanted to say that, in my recollection, I did not do that, and I CERTAIN MARITIME INCIDENT CMI 258 SENATE-Select Tuesday, 26 March 2002 had somebody else subsequently say that they did not recollect me saying that statement, but I was- Senator BRANDIS-Commander, I think we are going to the conversation and I will take you to that. But before I do, what you have just said could also be put this way-can I suggest to you with respect-that, being aware of this incident, you were being very careful not to be remembering or be seen to be claiming more than you could in fact remember, which is why you, as I said before, quite properly qualified yourself by the use of words like `possibly'. It is dishonest to say `I remember something' when I am not sure about it; it is very honest to say, `I am not sure about it, but possibly it happened.' I take it that this statement in paragraph 11 is in the second of those two categories-a qualified concession of the imperfections of memory. Cmdr Banks-I did a data dump and then sat down to proofread and structure this with those qualifications, to try to make absolutely sure that there was nothing in here that could be misconstrued or lead people down the garden path. Senator JACINTA COLLINS-Is there any record of reports of children in the water? Senator BRANDIS-Excuse me, Senator Collins. Senator JACINTA COLLINS-He is saying that he did a data dump. Senator BRANDIS-Senator Collins- Senator JACINTA COLLINS-I am trying to understand what he means. Senator BRANDIS-I have been so patient with the Labor senators, but I have only got 25 minutes and I would like to get to the end- Senator JACINTA COLLINS-You will have more time. Senator BRANDIS-of my cross-examination of the witness by four o'clock. CHAIR-You are not cross-examining them, Senator Brandis. Senator BRANDIS-Well, my examination of- CHAIR-This is not a court. Senator BRANDIS-the witness before four o'clock. Cmdr Banks-If I could help Senator Collins, the term `data dump' means that I put all my thoughts and words onto the laptop; I dump my memory. I did not have access to all of the other documents. Senator BRANDIS-And this was the source? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 259 Cmdr Banks-And that is why I think, if you go through this, you will find that the timings in this statement are at variance with some of the timings in the other reports, and some of the numbers are different. Senator BRANDIS-I think we have done to death paragraph 11. Going back to paragraph 14, there is no qualification there. There is a report in fact of two sources. You are never saying that you saw children in the water of course; we know that-that is uncontroversial. But you say there that the boarding party, who you are hearing over the audio or electronically, as I said, and other witnesses on the bridge-these are the people you are talking to who either are EOTS operators or have got binoculars out on the bridge-are telling you things, and among the things they are telling you are the things described in paragraph 14. Cmdr Banks-That is a recollection of the information that was being provided. Senator BRANDIS-In that frame of mind, you speak to Brigadier Silverstone. Can I remind you what Silverstone's recollection of what you said to him during that conversation was. I am going to read to you from his submission to Major General Powell, which is his elaboration of his diary notes that he took while you were talking to him. The commander of the Adelaide: Vessel [has] disable[d] steering, [it is] dead in the wat[er] 7-8nm south ... [The SUNCs] threaten mass exodus. Men [in the water] child thrown over [the] side. Silverstone: How old is the child? You: 5, 6 or 7. [I cannot tell properly.] Silverstone: [Are they wearing lifejackets?] You: [Yes, though] some [men have] discarded [theirs] ... Silverstone: [Have you recovered the PII- that is, the potential illegal immigrants. You: To [the] best of [my knowledge we've] got everyone. CERTAIN MARITIME INCIDENT CMI 260 SENATE-Select Tuesday, 26 March 2002 That is his recollection, based upon the diary note that he took while you were talking, of his conversation with you. Allowing for the fact that you have very properly said that your memory of the conversation is imperfect, do you accept that Silverstone's recollection of it is correct? Cmdr Banks-No. Senator BRANDIS-Do you accept that it may be correct? Cmdr Banks-Yes. The issue of confusion for me is that the events he speaks about there are in that time-loop of the man overboards have taken place and the child is being held. Senator BRANDIS-There was no reference there of course to a child being held. What he has you saying is- Cmdr Banks-In my recollection, `a child being held'. I think he says- Senator BRANDIS-there are `men in the water' and `child thrown over side'. That is his recollection of the words. You accept that that may be correct? That is what you may have said to him? Cmdr Banks-I was only aware of that statement recently. Senator BRANDIS-Sure. Cmdr Banks-I had access to it on 7 March. Senator BRANDIS-I am putting to you-and I think you have already answered me-that you accept that that is what you may have said? Cmdr Banks-I accept that that is what I may have said but I am confused about the timings of that. Senator BRANDIS-I understand. Commander, you subsequently caused, or instructed, that witness statements be taken from the crew? Cmdr Banks-Yes. Senator BRANDIS-Let me hand you them, if you do not have them already. CHAIR-The statements? Senator BRANDIS-I will hand you a clean copy of one of those statements-there were 16, I think, by my count-of Able Seaman Gerrits. I am going to give you the opportunity to comment on what Able Seaman Gerrits says in a tick, but before I do, I am interested to know the circumstances in which these statements were taken. If you look at the structure of them, they are headed `Service police statement'; do you see that? CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 261 Cmdr Banks-Yes. Senator BRANDIS-Each of the 16 statements-if you will accept my word for this, as it is evident from the sample I have given you-has the typed signature is JM Koller CPONPC and a reference number in the bottom left-hand corner. Do you see that? Cmdr Banks-Yes, I do. Senator BRANDIS-What does `CPONPC' mean? Cmdr Banks-Chief Petty Officer Naval Police Coxswain. Senator BRANDIS-And that was Chief Petty Officer Koller? Cmdr Banks-It is Chief Koller. Senator BRANDIS-Does that mean-and I am not a military person-that he was like a military policeman on the vessel? Cmdr Banks-That is his primary job. He is responsible for the maintenance of discipline and for the gathering of information for Defence disciplinary action. Senator BRANDIS-The date, as you will see in the top right-hand corner, is 7 October. Do you see that? Cmdr Banks-Yes. Senator BRANDIS-None of these statements are signed; is there a reason for that that you are aware of? Is it not the practice in the Navy for statements to be signed? Cmdr Banks-No, they are. Senator BRANDIS-I am sorry, but the copies I have are not. Cmdr Banks-Because you don't have the originals; you have the copies that were emailed. Senator BRANDIS-All right; that is a red herring. There is nothing in that. Cmdr Banks-Can I just put that in context? Senator BRANDIS-Yes. Cmdr Banks-These are service police statements because he is-in your term-a military police person. Senator BRANDIS-Yes. CERTAIN MARITIME INCIDENT CMI 262 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-Because this was becoming a serious issue, I directed that we get statements from people and he carried that out in the traditional naval police coxswain way. He asked people to come to his office, make a statement, swear that it was true, sign it, type it, record it, and they were done. CHAIR-You, as the commander, would not take statements direct, would you? Cmdr Banks-I directed him to do that for me. CHAIR-Yes, but you would not take statements direct? Cmdr Banks-No. Senator BRANDIS-All of the statements are dated 7 October. I take it that that necessarily means they were taken on that day? Cmdr Banks-No, they were taken on 10 October. That is the statement in the man overboard incident off Christmas Island on 7 October. Senator BRANDIS-I understand. Cmdr Banks-The statements were then signed on 10 October. Senator BRANDIS-You have just told us the instruction to Chief Petty Officer Koller to take these statements came from you. What did you instruct him to do and, what particular is- sues, if any, did you instruct him to canvass with the witnesses? Cmdr Banks-I recollect that either I made the pipe or I had the XO make the pipe over 1MC, the ship's main broadcast system, that the incident involving people going overboard, and particularly children going overboard, from 7 October was attracting a great deal of attention and we needed to clarify what had or had not happened and ask members of the ship's company who were involved in that event, who saw it or were physically involved with it, to come forward and give their recollection as a statement. Senator BRANDIS-Commander Banks, we have read these statements with care, of course. One of the witnesses-that is, Gerrits-one of the EOTS operators, says: During that time- that is, the time when he was the EOTS bridge operator on Saturday, 7 October- ... I witnessed and recorded (video tape) SUNKS jumping off the siev by their own choice and I believe one child also went overboard. One male SUNK was also threatening to throw a small female child overboard by hanging her over the edge but he was persuaded not to do so by the boats crew. I will just pause there. Would you agree with me-and we will ask Able Seaman Gerrits about this in due course-that where he speaks of his belief of one child also going overboard he seems to be referring to something different from the attempt to throw the child overboard- what I would call `the little girl in the pink jumper incident'-because he distinguishes between CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 263 at I would call `the little girl in the pink jumper incident'-because he distinguishes between the two. So what he is talking about in the first sentence is something different from what he is talking about in the second sentence. Would you agree with that statement? Cmdr Banks-That would be a reasonable assumption. Senator BRANDIS-I take it that Able Seaman Gerrits, because he was the bridge EOTS operator, was one of the people on the bridge wings who, as you say in paragraph 14 of your cable: ... were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. In other words, in the buzz of all these voices you could hear of people narrating and commentating on this incident as it was developing very rapidly, one of the people who was saying things was Able Seaman Gerrits. Is that right? Cmdr Banks-I have no recollection of Able Seaman Gerrits saying that, but I could not say that he did not say it. Senator BRANDIS-Could I venture to suggest that, if there are all of these voices buzzing, you could not have a very specific recollection of who said what, and you do not purport to have in your statement. What you say, quite properly, is that all these people were saying various things and among the things that were said this is what they were saying. That is kind of the substance, in effect, of paragraph 14, is it not? Cmdr Banks-If I were on the bridge wing, I would not be able to hear Able Seaman Ger- rits, because he is inside the bridge. Senator BRANDIS-Right. Cmdr Banks-If I were inside the bridge, it would be possible that I could hear him. If, as he says, he was the bridge operator, because of the light conditions he would have had the curtain drawn around the EOTS terminal so that the light would not have been affecting his view of the screen. If he was in the operations room-where I think he was, because the videotape recording capability is actually in the ops room-he would have been much more distant and I would not have been able to hear him; his reports would have been made over a headset. Senator BRANDIS-I see. Does that mean that Able Seaman Gerrits probably was not one of the people being referred to by you in paragraph 14? Cmdr Banks-Able Seaman Gerrits, along with a whole host of people, contributed the information that went into fusing that picture. I cannot say whose information related to what event and how that was passed. What I am trying to say here is that, in my opinion, there is an inaccuracy in this statement. You are hanging onto the veracity of this statement, to one part of a sentence; I am saying that the preceding sentence is slightly inaccurate to begin with. Senator BRANDIS-Which sentence is that, Commander? CERTAIN MARITIME INCIDENT CMI 264 SENATE-Select Tuesday, 26 March 2002 CHAIR-The other thing which should be said about it is that the whole statement is not before us. The subsequent sentence seems to have some relevance to context, as well. Senator BRANDIS-Commander Banks wants to point to an inaccuracy in the statement and, in fairness to him, he should be allowed to. CHAIR-We are in a public hearing, too, and I think it is important to know that all of the statement of Able Seaman Gerrits is not before us and that other parts of the statement shed considerable light on what he may have meant by the sentence that has been selectively chosen for quoting. Senator BRANDIS-Mr Chairman, I am happy to table the statement now. Is that a course you wish me to pursue? CHAIR-You know exactly the same as I do, Senator Brandis, that we are awaiting a clearance for all those statements and we cannot make them public until we are sure that any sensitive references have been removed from them. Senator BRANDIS-On the face of it, there does not seem to be any sensitive reference in this. CHAIR-That may be on the face of it, but I am not an expert and I have heard you say you are not an expert either on military matters. I am not prepared to allow statements that may contain issues of sensitivity to be made public until I am certain from the relevant authority that they do not. Senator BRANDIS-There is only one paragraph in the entire statement that is not formal, Mr Chairman, and I have practically read most of it. Senator BARTLETT-Could I suggest by way of assistance, given that it is only five sentences long and you have read half of it and are probably going to read the rest of it by the time you have finished, that you just read it all out? Senator BRANDIS-Why don't I do that? Why don't I just read it? CHAIR-I have no objection to that. The only objection I raised in the first place was that, if we are asking Commander Banks to talk about the statement, the whole statement and not parts of it should be before us, so please proceed to read it. Senator BRANDIS-I will read the paragraph that is the only part of the statement, I think you will agree, Commander Banks-if you do not, let me know-that is not formal by way of formal introduction and formal signing off. It says: My full name is WADE THEO GERRITS, I am an Able Seaman CSO in HMAS ADELAIDE. On Saturday 07 October 2001, I was on the Bridge manning EOTS (Electronic Optical Tracking System). During that time I witnessed and recorded (video tape) SUNKS jumping off the siev by their own choice and I believe one child also went overboard. One male SUNK was also threatening to throw a small female child over board by hanging her over the edge but he was persuaded not to by the boats crew. All persons who dove overboard did so by there own accord and were all wearing life jackets. All personal- CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 265 I assume that means personnel- were also recovered by Adelaides sea-boats and returned to the siev. All this was recorded on video tape. Will you agree with me that that is the only part of the statement that goes to the events? Cmdr Banks-That is true, and that is one of 16 statements. Senator BRANDIS-You read all these statements? Cmdr Banks-I have since. Senator BRANDIS-They were taken on the 10th, as you have told us. Did you read them by the time you wrote the 11 October cable? Cmdr Banks-I do not believe so. Senator BRANDIS-So your analysis which is reflected in the 11 October cable did not take into account and was not affected by anything in any of these statements? Cmdr Banks-I certainly spoke to Lieutenant Commander Hynes. Senator BRANDIS-He does not say anything about children one way or the other. Cmdr Banks-I had spoken to a number of the people on the bridge wings, because we were on the bridge wing together at the same time. Senator BRANDIS-We will take you through it, Commander. Do you remember speaking to Lieutenant Letts? Cmdr Banks-He was on the bridge with me throughout. Senator BRANDIS-No, my question is: do you remember, before you composed the 11 October cable, speaking about these events to Lieutenant Letts? Cmdr Banks-This was a topical event-a significant event. We would have discussed it on the day that it took place and in the days after. Senator BRANDIS-Is your evidence that you remember discussing it, or is your evidence that you do not remember but you think you would have? Cmdr Banks-I do not remember but I think I would have. The navigator is a person who works very closely with me. Senator BRANDIS-Of course. CERTAIN MARITIME INCIDENT CMI 266 SENATE-Select Tuesday, 26 March 2002 CHAIR-Why don't you just ask the commander, given that he has now read the statements since he put his report in, whether he wishes to vary his report in any way in light of the- Senator BRANDIS-I will ask my own questions, please, Senator Cook. Do you remember discussing the matter with Midshipman Rachel Naree? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Chief Petty Officer Koller? You must do because you asked him to take the statements. Do you remember other than the instruction being given? Cmdr Banks-I did not know that he made a statement until I got the statements. Senator BRANDIS-So you do not remember discussing it with him. Do you remember discussing the matter with Petty Officer Chapman? Cmdr Banks-No. He was in the boarding party. Senator BRANDIS-Do you remember discussing the matter with Petty Officer Nixon? Senator JACINTA COLLINS-Sorry, but I did not hear the witness's answer. Cmdr Banks-He was absent from the ship for most of the time. He was in the boarding party. Senator BRANDIS-Commander, there is absolutely no criticism implied in any of these questions. I just want to establish who in fact you had spoken to by 11 October. So you do not need to explain why it was that you did not speak to these people. Do you remember discussing the matter with Petty Officer Nixon? Cmdr Banks-Possibly. He is my yeoman. He is part of my personal staff. He is the man who produced the photographs. Senator BRANDIS-Is that in the category of `you do not remember but you think you would have'? Cmdr Banks-Yes. Senator BRANDIS-Do you remember discussing the matter with Leading Seaman Barker? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Leading Seaman Blennerhassett? Cmdr Banks-Yes. She is in the personal staff. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 267 Senator BRANDIS-Do you remember discussing the matter with Leading Seaman Heedes? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Leading Seaman Piper? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Leading Seaman von Kelaita? Cmdr Banks-No. I had had many discussions with him because he was the Arabic- Lebanese linguist and I used him throughout the period to convey messages in that language. So I had lots of conversations with him. Senator BRANDIS-But you do not remember discussing the matter with him? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Leading Seaman Walker? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Able Seaman Black? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Able Seaman Gerrits? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Able Seaman Gullidge? Cmdr Banks-No. Senator BRANDIS-Do you remember discussing the matter with Able Seaman Skells? Cmdr Banks-No. Senator BRANDIS-As I understood your answers, you remember discussing the matter with two of these people; that is, Lieutenant Commander Hynes and- Cmdr Banks-Lieutenant Letts? Senator BRANDIS-And Leading Seaman Blennerhassett. And there were two others, as I understood your answers, including Lieutenant Letts, with whom you do not remember having the conversation but you think you would have. CERTAIN MARITIME INCIDENT CMI 268 SENATE-Select Tuesday, 26 March 2002 Cmdr Banks-That is correct. CHAIR-Commander Banks, you have since read the statements as prepared and the ones that are being referred to now? Cmdr Banks-That is correct. CHAIR-And you are, of course, aware of what you have reported. Since you read those statements, because you have read them, is there any reason that you would go back and change any word or sentence in your report? Cmdr Banks-There are words of grammar and vocabulary that, with the benefit of hindsight, I would change. CHAIR-Any conclusions? Cmdr Banks-I would leave the content and the conclusions as they are. CHAIR-Does that mean that you still stand by your report and think it is a true and accurate reflection of what occurred, given the statements or without the statements? Cmdr Banks-When I wrote that on 11 October and signed it, I did not do it as a service police statement. I did not go down to the coxswain's office and go through that route, but I did have him come up and witness my signing it, to give it that same air of authority. I was making what I considered to be a sworn statement of my version of the truth. CHAIR-And you are still satisfied that that is a correct statement? Cmdr Banks-Yes I am. I would love to change a couple of words, the grammar and syntax, and all the rest of it- CHAIR-Don't we always, after we have finished writing something. Cmdr Banks-but I am happy to stand by that statement. Senator BRANDIS-Nobody is criticising your grammar or syntax. Can I foreshadow that I do have a lot more, but obviously we will continue- CHAIR-This is the problem: it is four o'clock, which is the time we are going to close. Senator BRANDIS-I know; I have stopped because it is four o'clock. We will resume next Thursday. CHAIR-Is that convenient for you, Commander? Cmdr Banks-I think I am at your behest. CERTAIN MARITIME INCIDENT Tuesday, 26 March 2002 SENATE-Select CMI 269 CHAIR-I think you are as well. But, if it is not inconvenient for you, we will resume at 9.30 a.m. on Thursday, 4 April. I think that is by agreement. Happy Easter. Committee adjourned at 4.01 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT THURSDAY, 4 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Faulkner, Ferguson and Mason. Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BANKS, Commander Norman, Commanding Officer HMAS Adelaide, Department of Defence ........273 RITCHIE, Rear Admiral Chris, Commander Australian Theatre, Department of Defence.................367 SILVERSTONE, Brigadier Mike, Commander Northern Command, Department of Defence............322 .........................................................................................................................................................................408 SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence................................447 Thursday, 4 April 2002 SENATE-Select CMI 271 Committee met at 9.35 a.m. CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from secretariat staff. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 10.30 p.m. and will resume at 9.00 a.m. tomorrow. The committee is unanimous in its determination to produce a report which is as definitive and thorough as possible and which is grounded in the facts, key statements, documents and accounts of those who are best placed to provide such material. The select committee is working to an extremely tight time frame, but is committed to thorough and judicious examination of the issues. We shall be led by the evidence. We shall attempt to deal as expeditiously as possible with witnesses. I urge witnesses to be concise in their answers and senators to keep their questions highly targeted. The committee has agreed that it will hear from Rear Admirals Ritchie and Smith this afternoon and this evening to accommodate their special circumstances. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. Under the Parliamentary Privileges Act 1987, the giving of evidence and the production of documents by a witness has the same legal status as a senator's participation in Senate proceedings and therefore attracts the very wide protection which is given to proceedings in parliament against prosecution, suit, examination or questions before any court or tribunal. The action of a witness in giving evidence and producing documents and the evidence given therefore cannot be used against the witness, in any sense, in subsequent proceedings before a court or tribunal. Standing order 181 declares: A witness examined before the Senate or a committee is entitled to the protection of the Senate in respect of the evidence of the witness. This is a declaration by the Senate that it will use its powers to protect witnesses against any adverse consequences arising from their giving evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person, and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy; however, they may be asked to explain government policy, describe how it CERTAIN MARITIME INCIDENT CMI 272 SENATE-Select Thursday, 4 April 2002 differs from alternative policies, and provide information on the process by which a particular policy was arrived at. Witnesses will be asked to make an oath or affirmation. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. For the convenience of all, the committee has agreed that counsel may be seated at the witness table with the witness. However, counsel has no right to address the committee, nor will the committee ask questions to counsel. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 273 [9.39 a.m.] BANKS, Commander Norman, Commanding Officer HMAS Adelaide, Department of Defence CHAIR-Welcome back, Commander Banks. Senator Brandis will open the questioning. Senator BRANDIS-Commander, let me remind you of some evidence you gave when you appeared before the committee last Monday evening. You were addressing us on the circumstances in which you arrived at the view that children had not been thrown overboard. On page 173 of the Hansard, you said: ... by 11 October we had all agreed that there were no children thrown overboard. What annoyed me was that throughout this whole period nobody else called back to ask for the information. I had spoken to Admiral Smith and Brigadier Silverstone in telephone and written guise and it had been, to my recollection, conclusively agreed that no children had been thrown overboard. Whether they took that same conclusion away, I do not know. But in my mind, at 11 October, I was adamant that no children had been thrown overboard. I should say, Commander, in fairness to you, that a little later on you expressed that perhaps the word `adamant' was a little strong, but nevertheless it was the case that, by 11 October, you had reached that firm conclusion. Might I also remind you of your evidence of last Tuesday, at page 265 of the Hansard, that by the time you wrote the 11 October cable-that is, the cable concerning which we heard so much evidence last time-you had not read the witness statements taken on 10 October. You will remember that at the close of your evidence last Tuesday afternoon I took you through each of the 16 witness statements and you identified for me two witnesses-Hynes and Blennerhassett-who you remember having spoken to by 11 October and two-Letts and Nixon-who you thought you would have spoken to but had no recollection of having done so and the other 12-Naree, Koller, Chapman, Barker, Heedes, Piper, von Kelaita, Walker, Black, Gerrits, Gullidge and Skells-who you did not recall having spoken to. This is as at 11 October. I am sorry about that long preamble, but I wanted to put before you the relevant facts in fairness to you. Why is it that, as at 11 October, you were able to be adamant in that view-that is, that no children had been thrown overboard? Cmdr Banks-Sir, because no children were thrown overboard, no children were put in the water, no children were recovered from the water, and it was a little surprising to me that that was being questioned. We had signalled a summary on 7 October that 14 people had gone overboard. I compiled my statement in response to a request from CJTF639 and the Maritime Commander to clarify the issue. I had already asked that- Senator BRANDIS-I am sorry to interrupt you-but when you say `to clarify the issue', you mean Brigadier Silverstone, do you? Cmdr Banks-Yes, I do. CERTAIN MARITIME INCIDENT CMI 274 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-We will come back to that. Please go on. Cmdr Banks-By 10 October-and I am pretty sure it was 10 October, but I cannot dismiss that it was not late on the 9th; but more likely the 10th-the brigadier had been in touch with me to say that there was a clear difference between what he recollected had been said and what I had transcribed in the operational sit reps, and he wanted me to clarify that children had been thrown overboard. I convened that the statements be taken and they sat in my cabin the night of the 10th. I composed my statement on the morning of the 11th and, at the same time, I sent the 15 other statements by email and then sent my own by signal at about the same time. Senator BRANDIS-There was a lot in that; let me go through it carefully. I do not understand why you refer to the statements, because your clear evidence last Tuesday afternoon was that you had not read those statements by the time you wrote the 11 October cable. Cmdr Banks-That is correct: I had not read the statements when I wrote my own statement. Senator BRANDIS-I understand that. Cmdr Banks-I had the statements in my cabin; they were brought up to me. Senator BRANDIS-If you had not read them, you had not read them; what does it matter that they were sitting in the cabin. Cmdr Banks-I then arranged for them to be electronically transferred, because all documents that leave Adelaide leave under my signature. Senator BRANDIS-Commander, if the statements did not form part of the grounds for your conclusion-as I am sure you will agree they could not have if you had not read them-other than your conversations with Brigadier Silverstone, Rear Admiral Smith, and I think you also say the principal warfare officer, who I think was Lieutenant Commander Hynes, were those the three things that caused you to be adamant in that conclusion on 11 October? Cmdr Banks-I am just trying to recollect everything before I answer. Senator BRANDIS-Commander Banks, please take your time. Cmdr Banks-There was a lot of information flowing around the ship. Senator BRANDIS-That is what I am trying to track down. Of the information that was flowing around, what actually washed ashore in your mind. Cmdr Banks-We were hearing and receiving emails that indicated that this was a significant event being played out in the media, and the significance was realised by me that I had an obligation to clear up whether a child had been thrown overboard or not. Senator BRANDIS-If you could. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 275 Cmdr Banks-If I could-no, I think I had an obligation to do that, full stop. That was the mindset I was operating in. I was aware of what I had seen with my own eyes and what I had heard and experienced. Senator BRANDIS-Commander, just if it shortens things, I think it is uncontroversial that your clear evidence is that you did not see a child thrown overboard. Nobody disputes that. Cmdr Banks-I went out to the ship's company and asked had anybody seen anything that would relate to this. Senator BRANDIS-Commander, which members of the ship's company? Because those who were presumably the most immediate witnesses to this would have been those-I am sure you would agree-from whom statements were taken; yet you have no recollection of conversations with 12 of the 16, and only a firm recollection of conversations with two of the 16. Cmdr Banks-The statements were taken independently by the chief coxswain. Senator BRANDIS-I understand that. Cmdr Banks-I certainly spoke to some people, because they are people who work in my immediate area. Senator BRANDIS-You have told us you spoke to Hynes, you have told us you spoke to Blennerhasset and you have told us that you think you would have spoken to Letts and to Nixon. Cmdr Banks-That is correct. Senator BRANDIS-They are the four. Cmdr Banks-They are the only four I can recollect having spoken to. Senator BRANDIS-I will take you to those statements in a moment. Before I do, do I understand your evidence to be that in reaching what you at least initially described as an `adamant view' on 11 October, something that Rear Admiral Smith said to you and something that Brigadier Silverstone said to you were also factors contributing to your arriving at that view? Cmdr Banks-I do not quite understand the question. Senator BRANDIS-Perhaps I am chasing shadows here but I read the transcript of your evidence and you used this unusual phrase of, `We had agreed,' or, `It had been agreed'-as it appears from the context-among the three of you that no children had been thrown overboard. Although, you go on to say that, perhaps, Brigadier Silverstone did not agree, or words to that effect. Was it that conversation or that series of conversations with Rear Admiral Smith and Brigadier Silverstone on 11 October that was the point at which you arrived at that adamant CERTAIN MARITIME INCIDENT CMI 276 SENATE-Select Thursday, 4 April 2002 view? That is the way I read it. Perhaps you would like to review it. I think your counsel has the Hansard there. It is on page 173, Commander Baston, at about point two on the page. Cmdr Banks-I cannot speak for how Rear Admiral Smith and Brigadier Silverstone recollect the conversation, but at the end of the conversation-there were two conversations. There was a conversation before I wrote the statement, where the issue was called to question and I was asked to provide my assessment. Senator BRANDIS-Can I stop you there. You say there were two conversations, one before you wrote the statement and one after the conversation. Were those both tripartite conversations involving you, Brigadier Smith and Rear Admiral Silverstone? Cmdr Banks-There were no tripartite conversations. Senator BRANDIS-As well as you can recall, can you take us through the conversations in sequence, please. Cmdr Banks-I cannot do it in sequence. Senator BRANDIS-As well as you can remember. Cmdr Banks-There was a conversation between the brigadier and me, which I recollect I took in my cabin, probably because it ran for some time. Senator BRANDIS-Was this on the 11th? Cmdr Banks-I cannot swear to the date. Senator BRANDIS-But it was beyond the `fog of war'-it was at a time when you were some days distant from the `fog of war', I gather. Cmdr Banks-I would like to address the `fog of war' later. Certainly on the 9th and the 10th the conversation took place in which it was discussed that there was a clear difference in our recollections of the events. This was between Brigadier Silverstone and me. Brigadier Silverstone spoke to me about the importance of the event in the context of the media coverage it was having and the fact that there was an election going on, and said that it was important that we presented factual advice to the government. He reminded me that his recollection of our telephone conversation was different from what I was saying and reporting in my signals in that I had not stated anywhere in the signals that children were thrown overboard; yet it was his recollection that I had said this in the telephone conversation. Senator BRANDIS-In answer to some questions from Senator Collins on Tuesday-page 204 of Hansard-about the critical conversation on the 7th, you said: It would be my assessment that if he recollected that I said something then I would have said it ... Cmdr Banks-I was not paying full attention there. Throughout the evidence I have given, I have not stated categorically that I can say one way or the other what that conversation was. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 277 Senator BRANDIS-We understand that, Commander. Cmdr Banks-But I was never of the view that a child- Senator BRANDIS-Please accept that your very careful nuancing of your evidence has been much appreciated by us. Nobody is suggesting that you are claiming to remember things you do not remember. Cmdr Banks-I was never of the view that a child was thrown overboard. In the conversation with the brigadier, he spoke to me about the fact that I was operating in a tactical situation and was probably under pressure. He said that it was quite understandable, in his opinion, that I could have made a mistake and not recollected things, and that he had written down a series of notes, which he intimated to me were in sentence form, of what I had said. I was then confused because my commander was saying I had said things but I had no recollection of that myself. Senator BRANDIS-Why does that create confusion? Every day of our lives people tell us of things that they remember that we do not remember. That does not mean that they did not happen. It is just that sometimes you do not remember something that was said in a conversation. Why would that cause confusion? Cmdr Banks-It was a fairly significant event. The brigadier is my superior. He is an intelligent man and a man I respect. Senator BRANDIS-But he was not doubting your credibility, surely. Cmdr Banks-He has intimated to me that perhaps I was wrong, that I needed to review the information and that I should not be ashamed if I felt I had made a mistake. I was then adamant- Senator BRANDIS-I cannot see why anybody would be suggesting you did make a mistake, Commander. Cmdr Banks-You would have to ask- Senator BRANDIS-You did not say to him, `I never said that,' did you? You said to him, `I don't recall saying that,' which is a big difference. Cmdr Banks-I do not recall the words that I used in all these things. I am paraphrasing recollections of the conversations. I was firmly of the view that no children had been thrown overboard, because I was there and was aware that that had not taken place. The conversation that we are referring to sticks out in my mind, based on the child being held over the side. Senator BRANDIS-Is this the 7 October conversation? Cmdr Banks-This is the 7 October conversation that we are referring to. The brigadier and I- CERTAIN MARITIME INCIDENT CMI 278 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-I do not want to get too far off the track. This line of questioning started by asking you to recall what were the conversations between you and both Brigadier Silverstone and Rear Admiral Smith. Cmdr Banks-There was a second conversation with Rear Admiral Smith-second in the sense that the first was with Brigadier Silverstone. Senator BRANDIS-You spoke to Brigadier Silverstone first and then you spoke to Rear Admiral Smith. What did Rear Admiral Smith say to you? Cmdr Banks-Rear Admiral Smith asked me-again, this is a paraphrased recollection-to confirm that there were no children overboard. We spoke about the time of sunrise. We spoke about the time between the boarding and the man overboard incidents; I believe he thought the two were nearly simultaneous, based on media reporting, and I reported back that, no, there was about an hour's difference between the two. He directed me to provide a statement-a chronology-of what had happened. I did that the next day. I believe that by the 11th, certainly in my mind, the evidence was clear that no children had been thrown overboard. I had provided a statement that said that, and there were other statements, which I subsequently read, that confirmed that. Senator BRANDIS-I am having trouble understanding-allowing for the fact that you were properly deferential to your superior officers-why anything that either Brigadier Silverstone or Rear Admiral Smith said to you was even relevant, because you were there and they were not. You were the witness; they were not. Admittedly, Brigadier Silverstone was a witness to his telephone conversation with you, but on the question of whether or not children were thrown overboard, why would anything that either of those men said to you on 10 October, or thereabouts, have been relevant, because they were not there? Cmdr Banks-In my mind, because the brigadier said, `I have notes, Norman, that recollect our conversation. I took these at the time and you said "A, B, C and D."' Senator BRANDIS-And I put that to you on Tuesday. What about Rear Admiral Smith? Why would anything that Rear Admiral Smith said to you be relevant to your recollection of an event to which he was not a witness and on which you had no contemporaneous discussion with him? Cmdr Banks-I do not think I said that. I think I said that we had a conversation. I do not think he gave me any information. Senator BRANDIS-So Rear Admiral Smith did not influence you arriving at this adamant view by 11 October? Cmdr Banks-Other than Admiral Smith would have said, `We need to get this right, Norm.' Senator BRANDIS-So it is more the case that you felt a need to have it clear in your mind, rather than that he told you anything that helped you get it clear in your mind? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 279 Cmdr Banks-A black-and-white answer was required to this question, and it was my duty to provide that black-and-white answer. Senator BRANDIS-But what if it were a grey area? Perhaps it was a little unfair to you, Commander Banks, in the `fog of war'. It is unfair to you, isn't it, that a black-and-white answer should be demanded of you in relation to a confused and highly mobile series of events of which you witnessed only some? Cmdr Banks-I think four days later it was clear that a black-and-white answer was warranted and was achievable. Senator BRANDIS-A black-and-white answer was not achievable on the 7th, was it? Cmdr Banks-In my mind, a black-and-white answer was given on the 7th in that sit reps 8 and 9 from Adelaide made no reference to children overboard. We referred to only 14 UBAs overboard. At no stage did we signal that children had been thrown overboard or held overboard. Senator BRANDIS-That is not right, is it? There was the little girl in the pink jumper who was held overboard. Cmdr Banks-I did not signal that in any of the signal summaries. Senator BRANDIS-That is my point, really. The fact that it is not mentioned in the signals does not mean that it did not happen. We know that the child held overboard incident did happen. You are quite clear about that and nobody is disputing that. Cmdr Banks-It was not viewed as that significant an event at the time. It became a significant event under scrutiny later on. Senator BRANDIS-I am going to read again a passage from the 11 October cable that was read to you by both me and Senator Ferguson last time. Paragraph 14-I am sure you are familiar with it-says: 14. Throughout, my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. That is what is being told to you while it is happening. There is no controversy; you did not see children in the water. Why are you able to be adamant on 11 October-four days later-that there were no children in the water when on the 7th, as it is happening, members of the boarding party and other witnesses on the bridge are telling you that there are children in the water? Cmdr Banks-As I have said earlier, my job is to assimilate information that is provided. The information that is provided may not necessarily be factual. My job is to filter that out and form a conclusive picture. Senator BRANDIS-I understand that, but isn't that a very important, indeed central, piece of evidence? This is not relying on memory; this is a narration of events as they happen: CERTAIN MARITIME INCIDENT CMI 280 SENATE-Select Thursday, 4 April 2002 ... my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. That is an important piece of evidence, isn't it, Commander? Cmdr Banks-No children were ever recovered. Therefore, by the 11th, I was adamant in my mind that no children were thrown overboard. Senator BRANDIS-Perhaps now we are getting somewhere. Is that the one additional fact that you could not have known while the event was taking place on the 7th but that you obviously did learn, subsequently, which hardened your view into an adamant one that no children had been recovered from the water? Cmdr Banks-At 5.06 a.m. there was a report of a man overboard-that did not eventuate. Later on, there were lots- Senator BRANDIS-No-follow my question. I am asking whether that one particular further piece of information that you could not have had while it was happening-one that you could have had only retrospectively, that no children had been recovered from the water-was, as it were, the missing link, the extra piece of information that enabled you to be adamant in your view that no children had been in the water? Cmdr Banks-I think I was adamant in that view on the 7th, some time later in the day. Senator BRANDIS-But you could not have been adamant while members of the boarding party and witnesses on the bridge wings were telling you there were children in the water. You do not say you were adamant then, do you? Cmdr Banks-No. At six o'clock or seven o'clock in the morning, I was not adamant on anything, other than that people were jumping overboard from SIEV4. Subsequently, I was aware of the number-although that still would be a number that is open to conjecture, plus or minus one-that they were all male and that none were children. Senator BRANDIS-This follows almost necessarily, I suppose: if you were not adamant when you were being told that at shortly before six o'clock in the morning-as you say in paragraph 14 of the cable-you were not adamant when you were speaking to Brigadier Silverstone a few minutes later because, by that stage, you did not have that extra piece of information that subsequently no children were recovered from the water. Cmdr Banks-Could I just have the first part of your statement again? Senator BRANDIS-You have told me at the time of which you speak in paragraph 14 of the cable-let me read it to you yet again-that: Throughout, my boarding party and the other witnesses on the bridge wings were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. Your evidence, as I understand it, is that at the time to which those sentences refer you were not adamant about anything because you had not been able to assess all the information- CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 281 Cmdr Banks-The events were unfolding. Senator BRANDIS-but that later in the day, on 7 October, you did become adamant that no children had been thrown into the water. That is the case, isn't it? Cmdr Banks-That is correct. Senator BRANDIS-My question is: when you spoke to Brigadier Silverstone a few moments after the events narrated in paragraph 14 of the cable happened, you were not adamant by that stage because you did not have that retrospective piece of evidence-that is, that no children had been recovered from the water. Cmdr Banks-That is assuming that the conversation that I had with Brigadier Silverstone is as he reports it. Senator BRANDIS-No, it is not assuming anything; it is simply putting to you the proposition that, if that was your frame of mind at the time to which paragraph 14 of your cable refers, then that was still your frame of mind if, shortly afterwards-your evidence last time was about 6.00 a.m.-you spoke to Brigadier Silverstone. Cmdr Banks-At 6 a.m. I was unsure whether there would be any more jumpers. I had seen- Senator BRANDIS-I am sorry? Cmdr Banks-Any more people jumping. I had seen some people jumping as we were speaking on the telephone, and there was a child being held. The end state had not been achieved and full control had not been achieved of SIEV4. Senator BRANDIS-And, as appears from paragraph 14 of your statement, I suggest to you, by 6.00 a.m. you had been told by the boarding party and other witnesses on the bridge wings that there were children in the water. You had not seen them yourself and you had not been able to verify that, but you had received that piece of information, hadn't you? Cmdr Banks-Yes. Senator BRANDIS-And that was your frame of mind when you spoke to Brigadier Silverstone? Cmdr Banks-My frame of mind was that events were unfolding which included losing control of SIEV4, people jumping overboard, a child being held over the side, my boarding party on board and my RHIB recovering people. All of those pieces are relevant, not one snippet in isolation of that statement. Senator BRANDIS-I want to focus on that because that is what interests me. When you spoke to Brigadier Silverstone, one of the pieces of information that you had lately received CERTAIN MARITIME INCIDENT CMI 282 SENATE-Select Thursday, 4 April 2002 from-and I quote your words-`My boarding party and the other witnesses on the bridge wings' was, among other things, that there were children in the water. Cmdr Banks-That is correct. Senator BRANDIS-On 24 October the Prime Minister went to see the Adelaide off. You told Senator Bartlett that you gave instructions, in advance of that visit, to the ship's company that they should speak freely and honestly if they had the opportunity to either of your distinguished guests-that is, the Prime Minister and who was the other distinguished guest? Cmdr Banks-Minister of Defence. Senator BRANDIS-Members of the ship's company were to speak freely and honestly to either of your distinguished guests, at no stage were you given instructions not to discuss SIEV4, and you were in company with the Prime Minister for between 45 minutes and an hour-and that all comes from page 171. By 24 October, you knew that the question of whether or not there were children overboard was a matter of public controversy and you had known that for some little time. Why didn't you take the opportunity to grab the Prime Minister by the ear, as it were-that is a bit disrespectful-to take the Prime Minister aside and in a few seconds put your position squarely to him? Why didn't you do that? Cmdr Banks-I will just recollect my thoughts here. There were a number of factors: one, it was not my position or responsibility to do that; two, I was aware that an election was taking place; and, three, certainly on 14 October I was aware that this was a significant issue. Senator BRANDIS-This was 10 days later. Cmdr Banks-In my opinion, reports in the media were incorrect. By 24 October I had not seen too much more of the issue-I probably thought it had died-but, most importantly, my mind was focused entirely on Operation Slipper. I was preparing to take HMAS Adelaide and the ship's company into harm's way, and Op Relex was something that was part of history. Senator BRANDIS-At any time up to and including 8 November did you have a conversation about these events with Brigadier Bornholt? Cmdr Banks-Not to my recollection. I do not believe I have spoken to Brigadier Bornholt in the last year. Senator BRANDIS-Did you at any time up to and including 8 November have a conversation with Air Vice Marshal Houston? Cmdr Banks-Definitely not. I have not spoken to Air Vice Marshal Houston since he was an Air Commodore. Senator BRANDIS-So far as you are aware, did either Brigadier Bornholt or Air Vice Marshal Houston ever get in touch with you at any time up to and including 8 November to discuss these events and your recollection of these events? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 283 Cmdr Banks-No. Senator BRANDIS-Had either of those gentlemen done so would you, in the ordinary course of things, have become aware that they had been attempting to reach you notwithstanding that you were on deployment? Cmdr Banks-Sorry, this is after 8 November? Senator BRANDIS-No, up to but not beyond 8 November. If either Houston or Bornholt had been trying to reach you, albeit that you were on deployment- Cmdr Banks-The Adelaide was alongside. Senator BRANDIS-In the ordinary course of events would you have learned of that fact? Cmdr Banks-I believe so. Senator MASON-Senator Brandis, in his examination, referred to several witness statements that you caused to be made at the time, and I might just refer to a few of them. Do you have them with you? Cmdr Banks-I have copies with me. Senator MASON-I might just refer first to Lieutenant Commander Daniel Christopher Hynes. What did Lieutenant Commander Hynes's position entail? Cmdr Banks-He is the principal warfare officer and my operations officer. He would be my trusted left hand. Senator MASON-I am looking at the third paragraph here-that is, the large paragraph on his witness statement. He was standing, I think, on the starboard bridge of HMAS Adelaide. Then, about six lines from the beginning, he says: It was at this time-a few minutes prior to six a.m.-that one adult male on top of the coach house started dressing his child in a yellow positive buoyancy lifejacket. The vessel was approximately 75 to 100 meters away. He picked the child up and took him to the edge of the coach house and it was apparent that he was explaining to the child that he was going to have to go in the water. This was not well accepted by the child and naturally he/she started trying to get a tight grip on the adult. He then held the child out over the side of the SIEV and motioned to the RHIB- which is the rigid hull inflatable boat- to be ready to receive that child. The RHIB driver and the crew started motioning him with open hands to put the child down and not to throw the child. The RHIB initially closed in-obviously worried that they might have to catch the child. There was a lot of yelling on the SIEV and I do not believe that he properly heard what the crew was telling him although it was audible from the ship-"Don't" was being repeated. You do not doubt the truth of that statement, do you? Cmdr Banks-I spoke to Lieutenant Commander Hynes yesterday. His words to me were, `As God is my witness.' CERTAIN MARITIME INCIDENT CMI 284 SENATE-Select Thursday, 4 April 2002 Senator MASON-Can I next take you to the statement of Leading Seaman Tara Blennerhassett. So that I do not take up too much of the committee's time, I will just go through a few of these and not the whole lot. I think Leading Seaman Blennerhassett was on the bridge wing of HMAS Adelaide at the time? Cmdr Banks-That is correct. Senator MASON-If you go to the main paragraph there, about six lines down, it says: I watched this through binoculars. About half an hour or so later, a man, standing on the top most deck of the SIEV, in front of the Wheelhouse roof, pulled a young girl from inside the wheelhouse on to the top deck with him. He placed her on the roof of the wheelhouse and put a lifejacket on her, she seemed to be around 4 to 5 years old. He held her on the roof of the wheelhouse while he watched the other SUNCs get picked up by the RHIBs and put back on the SIEV. He then picked the girl up and walked to the STBD side of the SIEV and motioned to LS McGuinness in the RHIB directly underneath him to grab the child, he was going to throw her in. LS McGuinness held his hand out in stop motion and, although I could not hear the words, by hand gestures and words telling the man not to throw her into the water. The man climbed over the guardrails, the child was kicking screaming and hitting at the man, shaking her head and grabbing at him around the neck. Commander, you do not doubt the veracity of that statement? Cmdr Banks-These are not my statements. Senator MASON-You have no reason to doubt the truth of them? Cmdr Banks-No. Senator MASON-If I can take you now to- Cmdr Banks-The substance of that fits in with my recollection, although some of the words and the drama would be different to how I expressed it. But the facts that come out there are the same. Senator MASON-Thank you. Able Seaman Gerrits-if I may take you to that one now- has featured a bit already. Can I take you to the third paragraph, where the able seaman says: I was on the bridge manning EOTS. that is, the electrical optical tracking system- During that time I witnessed and recorded (video tape) SUNKs jumping off the SIEV by their own choice and I believe one child also went overboard. One male SUNK was also threatening to throw a small female child over board by hanging her over the edge but he was persuaded not to by the boats crew. All persons who dove overboard did so by their own accord and were all wearing lifejackets. All personnel were also recovered by Adelaide seaboats and returned to the SIEV. All this was recorded on video tape. Again, Commander, you do not have any reason to doubt the veracity of that statement? Cmdr Banks-No, I do not. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 285 Senator MASON-I want to turn next to the statement of Able Seaman Travis Gullidge. I think Able Seaman Gullidge was on the gun direction platform watching the events of the boarding through the aid of a night optical device. The fourth paragraph states: There was one incident where a man, approximately 30-35 years of age, dressed a young child of 5 or 6 in a life jacket and was holding her over the side of the upper deck. The young girl was screaming and was holding on to the guardrail of the vessel in an attempt not to go into the water. The man then stepped over the side, while the young girl was kicking and wreathing violently. In an attempt to stop the man from dropping the girl into the water, I saw the boat coxswain in the RHIB- the inflatable boat- making hand gestures toward the man to stop. The young girl, in an attempt to free herself of the man's grip on her had chunks of hair removed from her head. The actions from the boat coxswain stopped the man from dropping her into the water. Do you have any reason to doubt the truth, the veracity, of that statement? Cmdr Banks-I have a little bit of doubt about the chunks of hair. Senator MASON-Did you see that? Cmdr Banks-Did I see what? Senator MASON-Did you not see hair coming off the child? Cmdr Banks-As I said, I find that a little bit dramatic. Senator MASON-Able Seaman Gullidge was looking at this incident with the aid of a night optical device. What sort of effect does that sort of event have on your crew? Cmdr Banks-Most people were angered. On the reference to the `don't', I think most of that came from Adelaide, not from people on the SIEV or from the RHIB. I do not think we could hear that much. There were a number of people on the bridge wing and most of us were watching this event, and most of us were willing that this child would not be thrown overboard. Senator MASON-I pass to you submission No. 5 to the committee from Mr Dyari Ramzi from the Manus Island Asylum Seeker Camp Committee-First Arrival Group. I want to ask you a few questions about some assertions made in that submission. I draw your attention to the first page of that submission, which is an email to this committee commencing, `Dear Sirs'. Do you have that? Cmdr Banks-Yes, I do. Senator MASON-I take you to the paragraph commencing, `On the 7th October 2001'. I will put some of this to you and then ask for your comments about it. I should just say, by way of background, that this submission is from the group of people that HMAS Adelaide and you intercepted that day. Cmdr Banks-I saw it when I first got here last week. CERTAIN MARITIME INCIDENT CMI 286 SENATE-Select Thursday, 4 April 2002 Senator MASON-Yes. I just want to put that in context for the record. The submission reads: On the 7th October 2001 at approximately 3.30-4.00 am the Australian frigate Adelaide (01) fired warning shots to try and scare us and to force the captain to stop the boat. They called to us in English and Arabic demanding us to stop the boat so they could give us supplies that we needed. The frigate intercepted our course so that the Indonesian captain reduced speed, while marines in 4 rubber boats took advantage of the low speed and entered our boat. A boarding party was then injected. In the next paragraph, the submission reads: There was a navigator officer and the wheelman that forcibly took over from the Indonesian crew and changed course to the opposite direction, then all the passengers- on the SIEV- ...knew that they- that is, your boarding party- ...were lying to us about providing supplies, while their main purpose was changing our course towards Indonesia. Commander, what do you say to the claim that your boarding party was lying to the illegal immigrants? Cmdr Banks-I refute that we were lying. Senator MASON-All right. Cmdr Banks-As a point of fact, there were only two rubber boats, not four. Senator MASON-So you dispute that? Cmdr Banks-We only have two rubber boats. We called them RHIBs. Senator MASON-Can I take you to the next paragraph. There is a long passage here. For fairness, I should read it onto the record: By using the maximum speed can get from the engine they pushed- `they' being the boarding party- ...the speed levers heading toward Indonesia, causing a heavy unnatural smoke getting out from the engine to the women's section, bridge and outside the accommodation causing asphyxia for the passengers, especially the women and children. The boat kept on moving and after sometime the engines sound start to splutter until it went out completely. We couldn't hear the engines anymore and there was no more smoke. It was then that the Australian marines moved out the boat in a rushing way as if they were escaping and we were left by ourselves about 10 to 11 am, 7th October. After that the Indonesian crew told us they think we are in international waters and the engine was broken, water pump and rudder too. The Australian navigator left us a small compass besides it drawing an arrow that leads to the direction of Indonesia. All the passengers were shocked when remembering the claims of the Navy who firstly offered to help and provide our needs such as food and water and now they had deserted us, left alone in the middle of nowhere and the wide ocean in front of us, with the terrible condition of the engine and water leaking through the boat, because the pumps connected to the main engine were stopped and no more fuel left to operate the portable emergency pump. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 287 Commander, what do you make of any suggestion that sailors from the Adelaide boarding party were responsible for the failure of the engine, the water pump and the rudder to work? Cmdr Banks-Absolute rubbish. Senator MASON-Thank you. You have answered a lot of questions in the last few days from my Senate colleagues and I will read out some facts, as I understand them, in summary. If you object to any of them, please let me know. Cmdr Banks-There are several in here that are incorrect. Senator MASON-I will read out my summary, and please comment. Senator Brandis has just reminded me of something, and I think it is a good idea. I asked you to comment on the refugees' submission. If you have anything more to say on that, please do so. I cut you off. If you want to say anything else, please add it. Cmdr Banks-I was not prepared. It is a lengthy document. In the bits that you have read out, there are some inconsistencies from my recollection and understanding of what took place. Senator MASON-Can you tell us what they were? Cmdr Banks-The timing is correct. We fired warning shots. I would not say we were trying to scare them, but we were trying to force them to stop the boat so we could board them. Senator MASON-And that is an official naval procedure? It is internationally recognised as a form of warning ships and gaining their attention? Cmdr Banks-Yes, it is. From one o'clock or 1.30 we had been communicating our intent for that vessel to heave to. We had also been passing immigration warnings advising these people that to continue to Australia was not correct and that the crew may face detention and the passengers would be returned to Indonesia. Senator BRANDIS-And this at a time when, according to evidence last week, in your professional judgment and that of your officers, there was no suggestion the vessel was in distress. Cmdr Banks-And the vessel was seaworthy. It continued its passage. We had difficulty boarding the vessel. We did intercept, and we did put a boarding party on. The boarding party obtained some control, but with nine people in the boarding party and 223 people on the boat, `control' is a loose term. I find it hard to believe that they were actually able to segregate the people. They were crowded as it was. To have moved them around in such a controlled fashion would have been a most interesting exercise. Senator MASON-Was there any violence? Cmdr Banks-There was no violence reported, in the sense that weapons were not drawn, but hand force was used to clear people away to get on board and to move people around. We were not armed with electric sticks. I do not know where that came from. The boarding party CERTAIN MARITIME INCIDENT CMI 288 SENATE-Select Thursday, 4 April 2002 was armed with holstered 9mm Browning pistols and ASP batons, which are batons held in a pouch. They were given clear instructions on the level of force they were authorised to use. I cannot discuss the details, but the use of force in the sense of lethal or deadly force was not authorised. Senator MASON-You say, I think, in the Adelaide's boarding log, that the illegal immigrants made threatening gestures with sticks and timber torn from the vessel. Cmdr Banks-Yes, they did. At one stage it was reported that they had set a small fire. Oily rags were set fire in the engine room space. When we boarded the vessel it was obviously functioning. The engines were running and it was steering-it had done so for some time. We reversed its course, because that was our mission-to deter and deny entry to Australia. The course was reversed and, shortly after, the boat's engine stopped. That was about 5.19, I think. Senator MASON-Can you just tell us about the threatening gestures with sticks and timber torn from the vessel? What happened there? Cmdr Banks-I witnessed the awning on the port side-it was a green awning-being torn off and part of it discarded. Part of it was left flapping in the breeze. I watched the orange lid that covered the water drum in the forward section of the boat being discarded overboard and subsequently being recovered by our RHIB. I personally did not observe anybody with a stick. These were radio reports I was receiving. Senator MASON-And these were reported to you? Cmdr Banks-Yes, they were reported to me. Senator MASON-I missed something before. You said that there were immigration warnings given. Were they given in English and Indonesian? Cmdr Banks-I would have to check up on that. I am pretty sure they were bilingual. Senator MASON-All right. If I might just put some propositions to you, just on SIEV4- just on that incident-and we will see how we go. I think this is the evidence thus far: some illegal immigrants threatened to commit suicide; some illegal immigrants disabled the steering on SIEV4; illegal immigrants disabled the starter motor and sabotaged the engine; they lit a fire on the boat; illegal immigrants made threatening gestures with sticks and timber torn from the vessel-as you have just related. You had to insert a second boarding party to better restore control and to prevent the illegal immigrants from forcing a safety of life at sea situation. The illegal immigrants dismantled the navigational system and, as in evidence heard earlier, also the flag. They ignored persistent warnings from the Adelaide to cooperate. Illegal immigrants on SIEV4 jumped into the water, and this morning you said there were about 14 of those. Illegal immigrants on SIEV4 eventually succeeded in disabling the vessel. An illegal immigrant threatened to throw a child in the water-that is the little girl in the pink jumper that has been identified-and naval witnesses recorded a child being held with the obvious intention to throw that child in the water. The video records a child being dangled above the water, and a sailor, as I related before, reported that a child was thrown in water-just the one. Because the engine had CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 289 been sabotaged, the pumps did not function and could not pump out the water flowing into the boat, and this action assisted in causing the boat to sink. Finally- Cmdr Banks-There is a long bow being connected between the pump being turned off and the boat sinking. Senator MASON-Yes. But the fact that the engine was sabotaged, and that as a consequence of that the pump did not work, assisted in the boat ultimately sinking. Cmdr Banks-That is one factor in it. Senator MASON-I understand that. It assists me to understand that. Finally, it was the intention of the illegal immigrants on SIEV4 to create a safety of life at sea situation in order to be picked up by the Adelaide to assist in their efforts to enter Australia. Those are the facts as I understand them. Do you have any further comment? Do you agree with that? Is there any new dispute? Cmdr Banks-The sinking was caused by the boat becoming flooded with water. Senator MASON-Yes. Cmdr Banks-One of the factors that contributed was that their own pump did not work. But Adelaide provided repairs to that pump; we provided fuel for a pump; we provided our own pump; we provided a second pump; and we provided the ship to help pump it out. So saying that losing the boat's own pump resulted in the boat sinking is not- Senator MASON-Yes. It is not that simple, but certainly sabotaging the engine assisted, I suppose. You agreed before with the proposition that the fact that the engine was sabotaged assisted in the sinking of the boat. Cmdr Banks-That is one factor. Senator MASON-I understand that. Cmdr Banks-If the vessel's engine had continued I have no doubt the vessel could have returned to Indonesia, sure. Senator MASON-Do you agree with the rest? Cmdr Banks-Broadly, yes. Senator JACINTA COLLINS-Before I start on my remaining questions-you have dealt with many of them previously so I do not anticipate I will be too long-following up from those earlier questions, and perhaps Senator Mason can help me in terms of whether I heard his questions correctly, was the proposition put to you that one officer claimed that a child was thrown overboard? Senator Mason, I am trying to clarify what you understood to be the facts CERTAIN MARITIME INCIDENT CMI 290 SENATE-Select Thursday, 4 April 2002 just a moment ago. Was one of the propositions the claim that one officer claimed that a child was thrown overboard? Senator MASON-I will give you my exact words, Senator Collins, because I have written this down. A sailor- Senator JACINTA COLLINS-`A sailor', yes- Senator MASON-did report that a child was thrown in the water. Cmdr Banks-Reported. Senator JACINTA COLLINS-Reported that he thought a child had- CHAIR-The actual words in the statement were `I believe a child'. Senator MASON-Yes. Thank you, Chair, that is correct. Senator JACINTA COLLINS-And not `thrown'? Senator MASON-This morning I actually read out the appropriate passage to you, Commander, from Gerrits's statement, and I think we should leave it at that. Senator JACINTA COLLINS-It is an issue we will come to later. I just want it understood that Commander Banks has not actually- Senator MASON-Yes, sure. But that is on the record in fact. CHAIR-So as to have the issues properly on the record, the full statement, which has been tabled, stands as the evidence before us without question- Senator JACINTA COLLINS-Yes. Senator MASON-Yes. Chair, I agree. CHAIR-and that full statement goes on to say- Senator BRANDIS-As part of the evidence. CHAIR-As part of the evidence, yes, of course, but it is the statement of this sailor- Senator BRANDIS-Yes. CHAIR-and it says the word `believed'-`I believed'. And it says, in the following sentence, that all people who dove overboard did so of their own free will, or some such. Senator BRANDIS-But it has all been quoted. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 291 CHAIR-It is all there on the record. Senator MASON-I read it onto the record, Mr Chairman- CHAIR-You did, at my request. Senator JACINTA COLLINS-I simply wish to clarify that first point because it has been misquoted elsewhere and we will be dealing with it in later evidence. Cmdr Banks-But it also does not say that he reported it to anybody. Senator JACINTA COLLINS-Yes. That is right. One area that we have not covered in the questioning so far is related to some of the material provided in the logs. I note that you have your copy of the logs there. There are a few references that I would like to go to. As we were talking about the seaworthiness of the SIEV, I have one remaining question about how you dealt with this particular SIEV. Unfortunately, there does not seem to be any paging reference that I can take you to, so you will need to rely on the date and the time. On the Adelaide's boarding log, on 7 October at 0752- Cmdr Banks-Is that a reference to towing? Senator JACINTA COLLINS-Yes. Can you explain what was occurring at that point? Cmdr Banks-I would have been making some contingency plans: if I had to tow this vessel, could I do that? Was the vessel seaworthy enough for that to take place? Were there suitable towing points? I think the boat was functioning again then, but the engine had been off and on; therefore, I may have had a need to tow it. So I was making some contingency plans. Senator JACINTA COLLINS-The reason I ask this question is that the reference in the log says: ... CO request bordo- Is that the boarding party officer? Cmdr Banks-The boarding officer. Senator JACINTA COLLINS-It continues: to find area to attach line, to tow SIEV outside contiguous zone. It is `to tow SIEV outside contiguous zone' that I am trying to understand. I can understand why, within current government policy, the Adelaide would ensure that a vessel was seaworthy and escorted outside the contiguous zone. What I am asking you to explain is why you might tow it out. Cmdr Banks-To buy time. If you read on, I was sending a damage control party across to investigate the engine problem, with a view to repairing the engine. CERTAIN MARITIME INCIDENT CMI 292 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-I understand you went on to repair the engine, but you were contemplating towing the ship outside the contiguous zone whilst continuing to repair the engine and then leaving the ship outside the contiguous zone. Is that right? Cmdr Banks-Provided it was serviceable. Senator JACINTA COLLINS-If the ship did not become serviceable, you would need to consider where it would further be towed to. Is that correct? Cmdr Banks-That is correct. Senator JACINTA COLLINS-There is another reference in the operations room narrative at 0139. Again, there are no page numbers but it is about 10 pages in. Cmdr Banks-Does it say, `Estimate under way one hour or 1½ hours'? Senator JACINTA COLLINS-It is at about page 55, but this page does not have the number. Page 54 is the page beforehand. Cmdr Banks-Does it say, `Estimate under way'? Senator JACINTA COLLINS-Yes, that is it. It says: Towing option not a good option. Why would the log indicate that? Cmdr Banks-These are people's recollections. Senator JACINTA COLLINS-I appreciate that; that is why I am asking. Cmdr Banks-I am trying to go back in my mind here: to tow the vessel out was not a good option, but it may have been an option I needed to look at. Senator JACINTA COLLINS-With the intention to seek to restore the engine and then to disengage from the SIEV? Cmdr Banks-That is correct. The aim was to deter entry into Australia. Senator JACINTA COLLINS-Yes, but we were aware of the towing incident once distress became apparent. Cmdr Banks-This is well before distress. Senator JACINTA COLLINS-Precisely, which is why I was trying to clarify the context of this earlier towing contemplation. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 293 Cmdr Banks-It was only a contingency a plan. Senator JACINTA COLLINS-And only with the intention that the engines also be made serviceable? Cmdr Banks-Yes. Senator JACINTA COLLINS-The next area I want to go to in the logs-and I will also take you back again to the statement by the asylum seekers-relates to several references to decisions being required from the Prime Minister or the Prime Minister's office. It might be best if I work backwards here since you have already explored the asylum seekers' statement with Senator Brandis. On the second page of that statement at the fourth last paragraph, when the asylum seekers were concerned about the ship sinking, they say: The only answer we've heard from the officer on board our boat was that they were reporting directly to the Prime Minister's Office and the order must come from them so they can help you abandon your boat-that answer kept the same until the boat was sinking then we had the answer which was-we will make the rescue when your boat is completely submerged and you all must go in the water with the kids and women. Then and only then, our orders will give us the permission for helping you from drowning. Then further on in the statement- Senator BRANDIS-Senator Collins, before you go on, could I ask: was that ever said? Senator JACINTA COLLINS-This is what I am getting to, Senator Brandis. Perhaps, since you have had your opportunity, you will give me mine. Senator BRANDIS-I thought you were moving on to something else. Senator JACINTA COLLINS-No. Senator BRANDIS-You cannot leave a proposition as incendiary as that hanging in the air. CHAIR-I think she is coming back to it. I took the drift of her question to be that this was the first element of it. Senator JACINTA COLLINS-Yes. There are two other references in this statement directly related to the question and, if Senator Brandis gives me the opportunity, I will complete it. CHAIR-Well, you have the opportunity, Senator. Please proceed. Senator BRANDIS-I was just trying to be helpful, Senator. CHAIR-I am sure we are all trying to help one another. So let's get on with it. Senator JACINTA COLLINS-I do not need your help, Senator Brandis. Further in the statement, Commander, it says it would have been possible to save several of the possessions and documents of the asylum seekers `if the decision to abandon ship was taken earlier'. There CERTAIN MARITIME INCIDENT CMI 294 SENATE-Select Thursday, 4 April 2002 would have been, for instance, no need to save a child with her mother going underneath the ship and their concern was that the Australian government `never gave the order for the Navy to help us until the boat was fully submerged with water'. Can you respond to those assertions? Cmdr Banks-These are not our words; these are the words of the asylum seekers. Senator JACINTA COLLINS-Yes, that is right. Cmdr Banks-So it is unfair of me to comment on their perception of things. But my perception of things is significantly different from that. Senator JACINTA COLLINS-If we compare your statement, which says that there was a deliberate strategy to keep the asylum seekers on the ship for as long as possible, to their perception which was that, `We will make the rescue when your boat is completely submerged and you must go in the water with the kids and women'- Cmdr Banks-I find that hard to believe. There were two boarding officers-a senior lieutenant and a senior sublieutenant-both of whom had my full trust. I would have expected them to have communicated to the SUNCs certain messages. I find it hard to believe that they would have communicated such messages. Senator JACINTA COLLINS-If we then look at the facts of the situation, they did end up in the water before they were rescued. How do you explain that? Cmdr Banks-The words I used were `a controlled abandon ship'. SIEV4 sank very quickly-much quicker than we anticipated it would happen, if it was to happen. We had the situation under control for about 24 hours; the tow had been under way. We had maintained a good speed of advance of two to three knots throughout that tow and there was no sign of the vessel being under strain. The water level was increasing and efforts were diverted to pump the SIEV dry and those efforts were taking effect. I had had the vessel inspected by the executive officer and the marine engineering officer, both of whom came back and had said that the vessel was fine. Late in the afternoon of the 8th at about four o'clock or 4.30, the boarding officer began to report concerns that the water was again increasing and we spoke briefly. I dispatched the executive officer to give another opinion. I was beginning to think that the boarding officer was-what is the expression?-`situating the appreciation' because he was there and I brought the XO over as a second opinion. The XO called back on the radio something along the lines of, `I think we're going to lose this one. It is starting to go.' At that stage we had stopped the tow and we commenced a recovery action and the vessel began to founder pretty well at the same time. Senator JACINTA COLLINS-Let us work in a little bit more detail through the logs on that point. Let us go to the operations room narrative at page 80. Firstly, here at 0751 there is the reference `CaB'. Can you explain that to me? Cmdr Banks-`Chief, this is Boardo.' It is a call sign, `Chief' being me and `Boardo' being the boarding officer. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 295 Senator JACINTA COLLINS-So you are talking to the boarding officer. `Request to move children and women off'-whose request is that? Cmdr Banks-The boarding officer. Senator JACINTA COLLINS-He is requesting of you that the women and children be taken off. Cmdr Banks-That is what it says. Senator JACINTA COLLINS-What happened with that request? Cmdr Banks-We stopped the tow. We made increased efforts to repair the ship and to get the water out of the ship, and my strategy of maintaining them on board persisted. Senator JACINTA COLLINS-The agitation started at 0738. Then: Sunks becoming aggitated as the current course and swell means we are taking on water ... This then leads to the request from the boarding officer to you to move the children and the women off-at 0751. On page 82 at 0922-almost two hours later: ... Siev is taking on water when stopped in the water ... Water is coming through the side of the boat. Sunks becoming aggitated. At the next line there is something that is unclear on our copy of this log, and I am wondering if you can explain from your original version what the first word of that next line is meant to be to make a sentence. Cmdr Banks-It is `perry jet'; it is a misspelling. Senator JACINTA COLLINS-It is an abbreviation for peri-jet-is it?-or was it whited out? Cmdr Banks-It is just a misspelling. The correct spelling would be `peri-jet'. Senator JACINTA COLLINS-No, sorry, above that there is a blank on our copy. Cmdr Banks-I can't read it. Senator JACINTA COLLINS-It says `- increasing water rising'. Cmdr Banks-I can't make sense of that. Senator JACINTA COLLINS-Do you have something in the log that is a word? All we have is a large space and a little squiggle. Cmdr Banks-It looks like `7'. CERTAIN MARITIME INCIDENT CMI 296 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-That is all that is there in your version? Cmdr Banks-That is all that is there in my version. Senator JACINTA COLLINS-We have: ... increasing water rising, perry jet to be left running whilst towing- Then at 0942, `believe serious damage to the bottom' of the boat. At 0948, on the next page, you are removing personnel from aft and `02 deck'. Is that the top deck? Cmdr Banks-Yes. Senator JACINTA COLLINS-Then I have another interesting reference here, at 0949: 110 cm water at shallowest point. We are not sinking, but taking on lg amounts of water. Believe the boat is slowly sinking. Cmdr Banks-I think he is referring to the swamping. Water was coming over from the sea onto the deck and then going into the boat. Senator JACINTA COLLINS-Then we go down to 1009: Recommend we put people in the water. So at 1009 we put people in the water. Cmdr Banks-About then-we had already given the order to launch a life raft. It had already extracted one of the children who had been passed from the SIEV to the RHIB. Senator JACINTA COLLINS-Yes. So we go from 0738 when your boarding officer requests that women and children be taken off the ship to 1009 when, finally, people are taken off the ship. Can you explain to the committee why over that 2½-hour period the decision to disembark the SIEV was not taken earlier? Cmdr Banks-Because if I disembarked some to Adelaide I would have failed in my mission aim and I might as well have embarked all of them. In my judgment we still had a boat that was still marginally seaworthy and I still had control of the situation. Senator JACINTA COLLINS-A boat that was marginally seaworthy? Cmdr Banks-It was not until late 1650, early 1700, that it became readily apparent that I no longer had control. At 1430 I increased the efforts to dewater the vessel by installing the peri- jet. Senator JACINTA COLLINS-Sorry, at which time? Cmdr Banks-You are reading 0730 zulu. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 297 Senator JACINTA COLLINS-Yes, that is right. I am reading 0738. Are you suggesting that at 0738 you still thought you had a marginally seaworthy ship? Cmdr Banks-Yes. Senator JACINTA COLLINS-What happened between 0738 and 1009 when people were in the water to convince you otherwise? Cmdr Banks-Several things: the advice of the boarding officer, the advice of the XO, the fact that I could see with my own eyes that the vessel was now bow down in the water, and the fact that the water level was rising despite our pumping efforts. Senator JACINTA COLLINS-But the water level was rising at 0738 as well. Cmdr Banks-I contained it by the use of the peri-jet in the period between 0738 and 0930- something. Senator JACINTA COLLINS-There are a few things in all of that that I want to get to the bottom of. The first is your mission's aim. How do you characterise that? Cmdr Banks-The aim was to deter and deny access to the Australian migration zone. If forced to abandon that aspect of the mission, I was to contain the situation until a decision could be made as to where the SUNCs would be transferred to. Senator JACINTA COLLINS-And what did `containing the situation' mean? How would it be contained? Cmdr Banks-That would be as it unfolded. That may have been taking them to Christmas Island and providing a picket or a sentry whilst they were taken to the buoys at Christmas Island. It was keeping them inside the contiguous zone but outside Australian territory in the SIEV, and Adelaide providing an escort, or it could have been embarking them in Adelaide. Senator JACINTA COLLINS-Then where did this strategy of maintaining them on the SIEV for as long as possible come from and how does that relate to your mission's aim? Cmdr Banks-Dare I be so bold as to say commonsense. If I had them on board Adelaide it was my opinion that I would not be able to get them off Adelaide without the use of force. Senator JACINTA COLLINS-When you said at 0738 you had a marginally seaworthy vessel, did that mean that at 0738 you believed that, with additional work, the vessel could be made seaworthy again or just that you could keep it afloat? Cmdr Banks-We could certainly keep it afloat. The engine had gone-it had seized. The vessel was floating. It had very good buoyancy, evident from the fact that a day and a half after it sank it was still partially exposed above the water level. Whilst I had the people on board the SIEV I had control of the situation. CERTAIN MARITIME INCIDENT CMI 298 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-And you had them contained in a containable space. Cmdr Banks-I had them contained in an area. I was able to deliver food and water; I was able to reconstitute my boarding party-and Adelaide was free to carry out any other jobs it had to do. Senator JACINTA COLLINS-Did you need any particular authority to bring these people onto the Adelaide? Cmdr Banks-No. Given the opportunity, I would always have consulted with the brigadier, but my instructions were clear that there was to be no loss of life or injury. Senator JACINTA COLLINS-What did you require authority for? We have references in the log to the need for authority to tow. I can take you to the particular references. As one example, in the ship's log at 1544 on 7 October we have `Brig'-I take it that is referring to Brigadier Silverstone-`awaiting Prime Minister to make decision on SIEV'. Shortly afterwards, at 1550, it says that the `Prime Minister determined Ade [Adelaide] will tow SIEV to place to be determined'. I would like to understand what actions in this mission you needed particular authority for and where you understood that authority to come from. Cmdr Banks-Circumstance allowing, it would always be prudent to have consulted at any stage in the operation, but I was pretty clear that I could have done most of these things without seeking authority. To effect a boarding, I was instructed to seek approval. Senator JACINTA COLLINS-You were instructed to seek approval to effect a boarding? Cmdr Banks-Yes, I was. Senator JACINTA COLLINS-How long did it take for you to achieve that approval? Cmdr Banks-Not very long-a few minutes on the telephone. Senator JACINTA COLLINS-Who did you need to seek that approval from? Cmdr Banks-From CJTF 639. Senator JACINTA COLLINS-Did he need to seek that approval from further up the chain of command? Cmdr Banks-You would have to ask him. Senator JACINTA COLLINS-The reason I ask this is that it is pretty obvious through the logs that there is a belief from officers on the ship that the approval process goes beyond the brigadier. That reference I made is just but one. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 299 Cmdr Banks-Yes, it did. I recollect that there were some conversations where the brigadier took me into his confidence and explained things-that this was important and that it was going to government, and indeed the Prime Minister on certain occasions, for decisions to be made. Senator JACINTA COLLINS-Was whether you could board the asylum seekers one of those matters? Cmdr Banks-I do not believe so. Senator JACINTA COLLINS-But the towing was one? Cmdr Banks-Where we were going to tow it to. Senator JACINTA COLLINS-So not to tow but actually where to tow? Cmdr Banks-If I had felt the need to tow, I would have effected that decision by myself. Obviously, I would have consulted if time had allowed it. I do not believe that the decision to tow required further approval. The decision where to tow the vessel and/or, if I embarked the SUNCs, where to take them required government approval. I was aware of a discussion of maybe going to Cocos Island, and I was working fervently to have that stopped because I felt that that was not achievable. Senator JACINTA COLLINS-Are you aware of why you were instructed to consult the brigadier before you embarked asylum seekers onto the Adelaide? Cmdr Banks-Because that was clearly a transition in the phasing of the mission where the deterrence and the denial aspects had stopped and we were then transitioning into the containment phase. Senator JACINTA COLLINS-Looking at the earlier log, we see that at 0738 you were already in the containment phase, because at that stage you had already accepted that the ship could not be made seaworthy again. It was marginally seaworthy in that it was able to be kept afloat, but you were in the containment phase because you had these people contained on the vessel in tow. Cmdr Banks-To another phase of the containment phase. Senator JACINTA COLLINS-Take me through the different phases of the containment phase. Cmdr Banks-`Phases of it' are my words. I do not think that there were predescribed phases, although we had prepared some briefs for COMNORCOM. Clearly, if the aim was always to deter their arrival in Australia, embarking them on the Adelaide was another step towards their achieving that goal and our being unable to reverse the process. Senator JACINTA COLLINS-So containing them on their own vessel but ensuring that it was still floating and towing it to a place determined was one phase. CERTAIN MARITIME INCIDENT CMI 300 SENATE-Select Thursday, 4 April 2002 Cmdr Banks-Speculation-it could have been that I was directed to tow them back to Indonesia and transfer control to Indonesia. Having embarked them in Adelaide, that would have been an impossibility. Senator JACINTA COLLINS-Why is that? Cmdr Banks-Because I do not think I would have been able to have got them off Adelaide. But you are asking me to speculate now; those things did not happen. Senator JACINTA COLLINS-Yes. But you could hand this marginally seaworthy but probably irreparable ship back to the Indonesian government? Cmdr Banks-That is not my decision. Senator JACINTA COLLINS-No, but we are working through and you were saying that, if you had put them onto the Adelaide, that would have closed off one of the options. Cmdr Banks-You are asking me to give opinions, which I am not prepared to do. Senator JACINTA COLLINS-But you would accept that moving to a different containment phase and putting them onto the Adelaide is balanced against the safety of life at sea issues relevant to these people on a ship. Cmdr Banks-The sea conditions were fine, the vessel was marginally seaworthy but it was still afloat, my XO and MEO had recommended, after their visit, that the situation was in control, we were dewatering the vessel and, whilst the bordo had some concerns and the SUNCs were intimating concerns, it was my judgment we still had control of the situation and it was safe for the people to remain embarked in SIEV4. Senator JACINTA COLLINS-You referred to this in your evidence last week. Was this the stage at which Brigadier Silverstone was saying things to you like, `Make sure you don't get suckered into a safety of life at sea situation'? Cmdr Banks-I do not recollect the use of the words `suckered in', but I think- Senator JACINTA COLLINS-I checked the Hansard; sorry. Cmdr Banks-I stand corrected. That was preceding that event. Senator JACINTA COLLINS-It was preceding that event? Cmdr Banks-I am pretty sure that was preceding that; well before. Senator JACINTA COLLINS-But would it have been one of the factors that made you decide, contrary to your boarding officer's request, not to take women and children off the ship? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 301 Cmdr Banks-I get paid to make judgments. I listened to the advice, I weighed it up and I made a determination that the situation was still in my control. Obviously, with the benefit of hindsight, I was incorrect-but at 1430 that judgment was validated and even at 1630 the judgment was still correct. Senator JACINTA COLLINS-What you have just said then does contradict the understanding of the asylum seekers-which was what I was coming back to-which was that they had to be in the water before you would rescue them. Cmdr Banks-I do not know what the boarding officer had communicated to them. I find it very hard to believe that he would have communicated that. Senator BRANDIS-That would not have been within his orders to do that, would it, Commander Banks, to make a communication to that effect? Cmdr Banks-He would have been speaking to them all the time in his efforts to control them. Senator BRANDIS-But you heard what Senator Collins read to you from the asylum seekers' statement, what they assert the boarding officer told them. It would not have been within his orders to make a statement to that effect, would it? Cmdr Banks-Certainly not to my recollection. Senator JACINTA COLLINS-Commander, some of these issues I will pursue further with Brigadier Silverstone. There are just one or two other issues I wanted to ask through your earlier evidence. When you spoke to Brigadier Silverstone regarding the threat of a child being put overboard, you indicated that you took several phone calls at that time and I think you have indicated through some of the evidence that one of those was COMFLOT. Cmdr Banks-That is correct. Senator JACINTA COLLINS-What was the nature of your conversation with him? Cmdr Banks-I believe somebody else took the call-in reading the logs-and then he called back and he asked me had I used warning shots. Senator JACINTA COLLINS-So it was only about whether- Cmdr Banks-It was only about the warning shots. Senator JACINTA COLLINS-So it did not even canvass the issue of children overboard? Cmdr Banks-It was well before that event. This was in the log at 4.20 in the morning. Senator JACINTA COLLINS-Did you talk to anybody else around about the time you spoke to Brigadier Silverstone? CERTAIN MARITIME INCIDENT CMI 302 SENATE-Select Thursday, 4 April 2002 Cmdr Banks-No. I have no recollection of speaking to anybody else. Senator JACINTA COLLINS-So you had no other conversations covering the `children overboard' issue where you could indicate that, in those conversations, you quite clearly indicated the facts as you understood them? Cmdr Banks-The only telephone conversations I had were with Brigadier Silverstone. The exception to that was when COMFLOT rang. Senator JACINTA COLLINS-I want to raise one more issue. This relates to evidence back when we were dealing with Minister Reith being on board the Adelaide. You said that you had a conversation with the minister about the EOTS machine-is that the right word? Cmdr Banks-Yes. It is the EOTS equipment. Senator JACINTA COLLINS-Can you describe the nature of that conversation more fully? Cmdr Banks-No, I cannot. This is only because it was one of many conversations. When I go back in my mind I can recollect various little things, but the exact wording of it, no, I cannot. I recollect meeting him on board, I recollect some banter about a previous meal he had had on board, a letter he had written, talking about the future and Op Slipper. I recollect that as we walked around the ship he pointed out the EOTS and spoke about that-more so to the Prime Minister about EOTS, is my recollection. I think it was because he had EOTS wrong, he had given the wrong description of the acronym. We were focused very much on Slipper-where we were going and what was happening. Senator JACINTA COLLINS-So it was not of the nature that `that is the equipment that took the controversial video'? Cmdr Banks-No, I do not think so. The other part of the conversation was about the hangar. Senator JACINTA COLLINS-That is right; no, I recall that part of it. I was more interested in the EOTS and the video, given Brigadier Silverstone's evidence to us that Minister Reith said he did not want to look at the video. So I was curious about why he wanted to understand the EOTS equipment if he did not want to look at the video. The final issue I wanted to come to was the issue of the sabotage. Cmdr Banks-Can I just go back to that EOTS question. Throughout it all, there are lots of assumptions. I had despatched the EOTS videotape on 14 October. I therefore, rightly or wrongly, assumed that that was available for other people. Senator JACINTA COLLINS-Yes. Cmdr Banks-The fact that it was not, I was unaware of. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 303 Senator JACINTA COLLINS-In a chronology of events and key correspondence surrounding the intercept and escort of SIEV4, there is a conclusion-this is at enclosure 2 to the Powell report; you do not need to go to it, it is a very brief reference-at the very bottom of this chronology that says that, `SIEV4 foundered. Sabotage possible, but CO Adelaide assesses it is not the only plausible cause.' You go into some more detail about that in your statement as well. Given that there have been some more recent media comments, amongst others, that sabotage is what caused these problems, is there anything further you wanted to add on that issue? Cmdr Banks-No. Senator JACINTA COLLINS-You stand by what is in your statement? Cmdr Banks-It is my statement. Senator JACINTA COLLINS-Yes. Cmdr Banks-It was made at the time, based on the information at the time. Until I came to this inquiry, I was unaware that there were 12 SIEV incidents. Senator JACINTA COLLINS-You were unaware of SIEV10, for instance? Cmdr Banks-I was unaware of all of those. Senator JACINTA COLLINS-Yes. Cmdr Banks-I was unaware that there was another SIEV incident on 7 October involving another patrol boat. Senator JACINTA COLLINS-Yes. Cmdr Banks-It was a very isolationist view of our world and what was happening. Senator JACINTA COLLINS-You did, though, receive the memo from Brigadier Silverstone, his advice to commanding officers in dealing with SIEVs, of 7 October? Cmdr Banks-Yes, I did. Senator JACINTA COLLINS-A memo in which he referred to allegations of children overboard? Cmdr Banks-No. His words were, `children displaced over the side'. I think that was the wording. Senator JACINTA COLLINS-I would have to go to the statement itself, but I think it referred to allegations, not facts. CERTAIN MARITIME INCIDENT CMI 304 SENATE-Select Thursday, 4 April 2002 Cmdr Banks-I have a copy of that somewhere. Senator JACINTA COLLINS-I can quote it if you haven't got it. We are both right. It says: ... deliberate displacement of personnel overboard, including allegations of children in lifejackets put over the side. Cmdr Banks-I was just checking the classification; I had forgotten that it has been declassified. I am aware of that. Senator JACINTA COLLINS-At the time that caused you no concern? Cmdr Banks-No, it did not. It backed up what I was aware of-that no children had been thrown over; a child had been put over. Senator JACINTA COLLINS-Or allegations that a child may have been put over. Cmdr Banks-Allegations that a child may have been put over. To my version of things that rang true. Senator JACINTA COLLINS-And if this had been the nature of the report by Brigadier Silverstone, further up the chain of command, it would not have been an issue. Cmdr Banks-Correct. Senator JACINTA COLLINS-And yet this is the report that he debriefs his COs with on the same day. Cmdr Banks-I did not view this document with any alarm. I had received this on the evening of 7 October, well after all the events-at six or seven o'clock at night. Senator JACINTA COLLINS-Through similar reports, are you aware of any safety of life at sea incidents as a result of the current strategy for handling SIEVs? Cmdr Banks-As I said, I was only ever aware of SIEV3 and SIEV4. Senator JACINTA COLLINS-I am now talking about after the SIEV4 incident as well. Were you at any time apprised of the SIEV10 incident and the death of two women in the water? Cmdr Banks-As I said, I am aware of the death of two people altogether and, until I came here last week, I was unaware that there were 12. Senator JACINTA COLLINS-Thank you. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 305 Senator FAULKNER-Are you aware of what I understand is an unclassified memorandum from CDF headed `Collection and handling of operational material with potential evidentiary use'? Cmdr Banks-Could you just give me a bit more information? Senator FAULKNER-Not a lot, because I read about it in the Bulletin magazine. Laurie Oakes might like me to read his article into the record, but it does refer to an unclassified memorandum headed `Collection and handling of operational material with potential evidentiary use'. Cmdr Banks-Something came out recently. I think I read it or browsed through it. It is in that pile in the `to do' tray. Senator FAULKNER-I know the feeling. I do not think this depends on an intimate knowledge of the memorandum, but I would like to understand whether you are aware of any loss or destruction-deliberate or otherwise-of any document or material that might be relevant to this committee's inquiry? Cmdr Banks-Yes, I am aware. The EOTS videotape-there are 10 tapes. The tapes of import are tapes 4 and 8. Tape 4 shows the `children overboard' incident, as you call it- Senator FAULKNER-I actually describe it as the `non children overboard incident'. I am sure that you appreciate that-I think we both do. Cmdr Banks-I do appreciate that. And tape 8 showed the sinking. Both tapes were recorded on EOTS-and correctly-and in the subsequent reviewing in my cabin by me and/or during the recording process of making duplicate, triplicate and quadruplicate tapes we managed to record over significant sections of tape 8. Only about a minute or two of that footage is left. So that evidence was erroneously destroyed. I will take responsibility for the bulk of that. Senator FAULKNER-This goes to the actual sinking event of SIEV4. Cmdr Banks-The sinking and rescue. Senator FAULKNER-How many minutes of tape would there be? Cmdr Banks-I would have to check my records but there are probably 55 minutes. Senator FAULKNER-I suppose you became aware of that almost immediately, did you? Cmdr Banks-Not for some time, but within that October time frame. Senator FAULKNER-In relation to the EOTS tapes-I do not want to be specific: you have said the relevant tapes are numbered 4 and 8, so obviously this does not apply to tape 8, CERTAIN MARITIME INCIDENT CMI 306 SENATE-Select Thursday, 4 April 2002 but it may apply to tape 4 or any others-were tapes shown to any land based authority on Christmas Island? Cmdr Banks-I recollect that I showed snippets of it to the harbour master and possibly the Federal Police and Customs guys. They came on board on the 9th and I was viewing that footage then as we were trying to compile our chronologies, on 9 and 10 October. Senator FAULKNER-It is true to say that the AFP took possession of at least a copy of the tape. Cmdr Banks-They were given a copy and I signalled a receipt that that transfer had taken place as part of the evidence process. Senator FAULKNER-So the harbour master may have seen some part of the relevant tape, tape 4. Would that be possible or likely? Cmdr Banks-Tape 4 and/or 8. Those are the two tapes that I would have been viewing. Senator FAULKNER-I see. So the point at which the harbour master might have viewed tape 8 is prior to the copying of the tapes. Cmdr Banks-Yes. Senator FAULKNER-Beyond the ship's company, AFP personnel and the Christmas Island harbour master might actually have seen relevant parts of the tape that has been recorded over. They would be the only individuals, outside the ship's company, who would have had the benefit of any viewing of that tape. Cmdr Banks-That is a fair assumption. Senator FAULKNER-The Chief of the Defence Force, Admiral Barrie, actually rings you after the Senate estimates. That is not an unexpected call because the Maritime Commander, I think, warned you or flagged with you that that was likely to occur at some time, I assume, on the morning of 24 February. For the sake of the record, could you confirm that the Maritime Commander did in fact ring you and indicate to you that the CDF was keen to speak to you about some matters? Cmdr Banks-Yes, he did. Senator FAULKNER-Was the Maritime Commander able to say to you what the likely issues to be discussed or general thrust of this conversation with the CDF might be? Cmdr Banks-Yes, he did. He put it in the context of Senate estimates, a media brouhaha, that the issue was very topical and that the CDF would likely ring me to ask some questions. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 307 Senator FAULKNER-Did you have any questions for the Maritime Commander in that telephone conversation? Prior to speaking to the CDF did you seek any clarification or more detail? Cmdr Banks-I think there was some discussion about the fact that there was going to be a Senate inquiry, that I would probably be called and not to worry about it, and just to get on with the job. Senator FAULKNER-Was it similar in a sense to that discussion you had with Chief of Navy? Cmdr Banks-Similar. Senator FAULKNER-Was the Maritime Commander able to say to you, `You mentioned this brouhaha'-which I think is a pretty fair description; I am not critical of it at all-and was he able to give you any feeling as to the extent of the likely public interest in this or the extent to which, if you like, this had become an issue of some political notoriety? Cmdr Banks-It was very evident that this was now on the front pages of the newspapers. I mentioned that I had received extracts on the Internet. Senator FAULKNER-So CDF did contact you as you were expecting? Cmdr Banks-He phoned maybe 10 to 15 minutes later. Senator FAULKNER-I see. What were the circumstances in which you took that phone call? Where did you take it and were there any others present, and the like? Cmdr Banks-I took the call in my cabin. I cannot remember whether it was transferred. I think it was transferred from the bridge to my cabin. I had set that up. The supply officer was in my cabin on another matter. I cannot recollect whether I asked her to stay either in the sense of a witness or out of keen interest if she was impressed that I was going to talk to the Chief of the Defence Force and wanted to listen in, but she ended up sitting adjacent and heard one side of the conversation. Senator FAULKNER-Fair enough. How long did that conversation with CDF take? Cmdr Banks-I could not accurately say; it was perhaps about 10 minutes. Senator FAULKNER-Would you be able to outline for the benefit of the committee the nature of the conversation? I appreciate that it is now a few weeks ago, but it is perhaps in more recent memory than some of the other events that we have discussed at this select committee to date, so I wondered if perhaps you could outline that for our benefit. Cmdr Banks-CDF drove the conversation. He spoke about Senate estimates. He asked whether I was aware that he had appeared and what it was about. It was all to do with the children and the SIEV4 incidents. He spoke about what had happened and even asked me what CERTAIN MARITIME INCIDENT CMI 308 SENATE-Select Thursday, 4 April 2002 was my recollection, and specifically what written advice had I provided about the incident. These files have lived in my cabin, just about opened for the last four and a bit months-so they were readily there-so I reached across and pulled out the two relevant sit reps and said, `Sir, in my sit reps Nos 8 and 9 I made no mention of children. I spoke only about 14 people being overboard.' He asked me: `But we would not know those in Canberra; those were tactical level sit reps,' and I said, `To the contrary, sir, these were addressed to agencies in Canberra, as well as all the other tactical agencies.' He then said that that was going to change things because that was not the information he had been given. I do not think we quoted the date/time groups of the signals, but we spoke about the wording in them. We spoke briefly about what had been in this telephone conversation and the conflict and that perhaps he had used the words `fog of war' there. I reiterated that I had signalled information that did not mention children overboard. He spoke to me about the fact that he had been out of the country for a lot of the time, that he was now coming back to this and that he would deal with it from now on. He said that this would go to a Senate inquiry and that he also thought that it might go to a board of inquiry. I believe at that stage he was talking about a board of inquiry before the Senate inquiry so that formal evidence could be gathered. The conversation ended talking about Slipper, when we were coming back, how the deployment had gone and the general nature of current events, as in Adelaide not the Senate estimates. Senator FAULKNER-Did the CDF express a view on the outcome of the Senate estimates hearings-perhaps the likely impact on Defence or the Navy? Cmdr Banks-No. Not to my recollection. Senator FAULKNER-Perhaps any impact on him personally? Cmdr Banks-There was a conversation thrust along the lines of he would deal with it. Clearly the information that he had presented to the Senate-this is my summary of it now- was contrary to the information I was providing and that he would now have to deal with that conflict in information. Senator FAULKNER-Did you talk at all about the timing of the call? You had obviously at least one face-to-face discussion with CDF more than a month earlier, in January, and, I suppose, there were other opportunities that CDF might have had to take an initiative. Was the question of the timing of the call discussed in the sense that it was after the issue was effectively front and centre in the public and political debate in this country, after the Senate estimates hearings in mid-February? Cmdr Banks-There have been so many conversations, discussions and rereadings, I could not firmly say that on 24 February we rediscussed his visit on 17 January. What I had discussed with him and the minister about SIEV4 was in very brief terms. I could not swear either way whether we discussed it again. Senator FAULKNER-You have not had many discussions with CDF. Cmdr Banks-Only two. There was a discussion on 17 January and again on 24 February. Apart from those, I have not spoken to CDF since he visited in Darwin in February 2001. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 309 Senator FAULKNER-Were you left with the impression by the end of this conversation or did the CDF say to you that the advice that he may have proffered publicly, without the benefit of a discussion with you as CO of Adelaide, might now be changed? It was; as I think we are all aware, he took a different view and expressed that publicly and said it was as a result of the conversation with you. Did he indicate to you in the conversation that you had with him that that was likely to occur-in other words, that the conversation he had with you changed his view, changed his attitude and changed things in relation to how he perceived the issue? Cmdr Banks-It is my recollection, or my perception, that I swayed his understanding of the events and that he would then deal with providing another statement to the Senate. Senator FAULKNER-Did he indicate to you that he was embarrassed by that? Cmdr Banks-I could not say. He was on the end of the telephone. I could not tell whether he was embarrassed or not. He intimated that it was difficult; it had changed things. Senator FAULKNER-I did not actually ask you: `Did he look embarrassed?' I meant: did he say he was embarrassed? I appreciate that. Did he explain to you why it was difficult or just that it was difficult? Cmdr Banks-I do not think he explained it; he just stated that this was difficult now. He had made some statements and they were in error, but he would deal with that. Senator FAULKNER-The op reps/sit reps that are relevant here did in fact, as you have indicated to us, go to Canberra agencies. Let me be clear-I want to understand this-I think you drew a distinction between tactical-level sit reps, which may not have included Canberra agencies, and other sit reps that might have. Is my distinction right here? Cmdr Banks-My recollection is that it was the CDF who was saying that Canberra would not have got my tactical-level sit reps. Senator FAULKNER-Yes, but that is the case with a tactical-level sit rep: a tactical-level sit rep does not go to Canberra agencies-or does it? Cmdr Banks-They do. There is a process called op rep reporting-operational reporting- and there are a number of agencies that are pretty well automatic addressees, because the reports contain location information. Senator FAULKNER-I see, so the CDF did not realise that a tactical-level sit rep would go to the Canberra agencies? Cmdr Banks-That would be an assessment, yes. Senator FAULKNER-That is what I was asking: I was wondering whether I knew as much about tactical-level sit reps as the CDF. I am a little worried that I do. Could you, for the sake of the record-and I think this is clear if we look at the actual sit reps themselves-say the date of the relevant sit rep and indicate the Canberra based agencies that it went to. CERTAIN MARITIME INCIDENT CMI 310 SENATE-Select Thursday, 4 April 2002 Cmdr Banks-They are preforwarded messages, so the addresses are pretty well the same throughout. The two in question were sit rep 8 and sit rep 9, daytime group 06 2200 zulu, October and they were addressed to CJTF 639 for information Headquarters Northern Command, Task Group 639.0, Task Unit 646.2.2, MHQAUST, Coastwatch Canberra, *OBE HQAST, DIO Canberra and DSD Canberra. I think when I spoke earlier I said that ADHQ Ops were clearly not addressees on these. They subsequently got copies from their logs. My personal statements and witness statements were not addressed to Canberra; they were limited to NORCOM, CJTF 639 and Maritime Commander. Senator FAULKNER-Is it true to say that the CDF made it clear to you that the addressees of these sit reps was significant and did change things? Cmdr Banks-That was certainly my impression. As soon as I mentioned those addressees, he said, `That changes things.' I had assumed throughout that he was aware of all these things- that was an erroneous assumption. I had also assumed that, because of the Bryant and Powell reports, he would have had access to all that information as well. So it was a little surprising to me when were having this conversation. Senator FAULKNER-Was it the nature of the conversation that surprised you or was it the fact that it was so late in the day? Cmdr Banks-It was actually early in the day- Senator FAULKNER-I mean late in the process. Cmdr Banks-Late in the process, yes. As I said, I erroneously assumed a couple of things, but I had assumed that he had access to the Powell and the Bryant reports and would have seen those signals, which are contained in them. Senator FAULKNER-Were there any other assumptions that you made that were wrong? Cmdr Banks-In relation to? Senator FAULKNER-You indicated that you erroneously assumed that he had had access to the Powell and Bryant reports-how do know that he did not have access to the Powell and Bryant reports? Cmdr Banks-I don't. Senator FAULKNER-I am wondering if that is an assumption on your part? Cmdr Banks-It is an assumption on my part based on the fact that he was asking me questions about my sit reps. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 311 Senator FAULKNER-Anyway, we can check that with the CDF himself. You have had no conversations with the CDF since? Cmdr Banks-None at all. Senator FAULKNER-Did the CDF indicate to you whether he might have a direct communication or conversation with any of the other key parties to this-Brigadier Silverstone, for example, who you had that significant and early conversation with? Cmdr Banks-No. Senator FAULKNER-Were they the only matters that you discussed? Was your conversation limited to the events that arose out of the Senate estimates evidence? Cmdr Banks-We then spoke about Slipper, when we were coming home, where was I stopping, the passage plan, the speed-all of those sorts of things. We spoke about when I was expected back in Australia, how the boardings had gone-a whole host of Op Slipper related things. The CDF showed a great deal of interest in what we were doing. Senator FAULKNER-Yes. Of course, you also had an opportunity to discuss those matters with him earlier in January. Cmdr Banks-On 17 January. Senator FAULKNER-When you flagged with the CDF in a `whispered aside'-I think that is a fair description-the possibility of raising a SIEV4 related issue, the CDF said not to progress that? Cmdr Banks-Again, I assumed there that he was fully aware of the issues and our version of the issues. Clearly, he was not. Senator FAULKNER-You talked to me-it seems half a lifetime ago, but I think it was only about a week or so ago-as an aside, about the possible need for a telephone log. I do not know if you remember that comment. Just for the record, could you tell the committee whether you or any other of the company of the HMAS Adelaide had at any time any contact by telephone or other means with any ministerial staffer about SIEV4 or Operation Relex? I have tried to be careful in the way that I have asked that question. Having seen your witness statement, I am expecting an answer in the negative, but I am not entirely sure, so I wanted to ask you the question in that form. Cmdr Banks-In relation to SIEV4, I have no recollection or knowledge of having any dealings with any ministerial staff adviser or minister. Senator FAULKNER-And in relation to Operation Relex? Cmdr Banks-In relation to Operation Relex, the same applies. CERTAIN MARITIME INCIDENT CMI 312 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-The fire alarm is ringing. What would that mean on a ship, Commander? Time to jump overboard probably! Cmdr Banks-I am not going to make any comment on the use of that word whatsoever! CHAIR-We were going to break for morning tea at 11.30. I have let the questioning roll on because I did not want to break the seam of it, but we do have Brigadier Silverstone down for 11.30. Will you be much longer, Senator Faulkner? Senator FAULKNER-I do not think I will be much longer. Can we battle through the fire alarm? CHAIR-Yes, I think so. It is a drill. Senator FAULKNER-It might take me until about 12 o'clock. How does that sound? CHAIR-In which case, I think we will break now for 10 minutes. Senator FAULKNER-But I will not be long after the break-I promise you. CHAIR-Apart from me, and I only have 10 minutes, I hope we can get through it. However, it has been a long sitting and I think-as far as I know-the commander now has the dubious record of being the longest single witness before a Senate inquiry. Senator FAULKNER-It could be worse, Commander, you could be a senator! Proceedings suspended from 11.40 a.m. to 11.52 a.m. Senator FAULKNER-Commander, I wanted to ask you about something that was contained in Mr Reith's witness statement. You may or may not be aware that the committee has had access to the witness statements for both the Powell and Bryant reports. I want to read a part of a statement on page 3 of Mr Reith's statement to the Powell report, which is dated 20 November last year: Unbeknown to me, but at the time of the incident, the CO of HMS Adelaide rang the Maritime Commander and told him that children were thrown overboard. To put this in context, it goes on: I was made aware of this conversation only in November by my Parliamentary colleague Dr Brendan Nelson, who was with the Maritime Commander when he took the phone call from HMAS Adelaide. When he put the phone down, the Maritime Commander relayed the report to Dr Nelson of children being thrown overboard. Clearly there is no date on this, but both the Bryant and Powell reports do go to this issue. If I take you to the chronology in the Powell report, at page 4 of 13, halfway down the page-I think it refers to this section of the Powell report that is after 1813 hours-it says, marked `PM': During a reception onboard HMAS KANIMBLA, Rear Admiral Smith remarks to the Parliamentary Secretary for Defence, Dr Brendan Nelson, that `the task was very difficult, made even more so by the most recent boatload jumping/pushing people into the water, including children'. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 313 I think it is proper that I point that out to you, just so you are aware of that-you probably were, anyway-in General Powell's report. But can I just, for clarity's sake, go to this statement of Mr Reith: Unbeknown to me, but at the time of the incident, the CO of HMAS Adelaide rang the Maritime Commander and told him that children were thrown overboard. I wanted to ask you: was there any truth at all in Mr Reith's statement? Cmdr Banks-I made no telephone call to the Maritime Commander in relation to this incident, on 7 October. Senator FAULKNER-Have you ever rung or contacted the Maritime Commander and told him that children were thrown overboard? Cmdr Banks-There is more than one question there. Senator FAULKNER-With respect, there is not. The two parts of the question are related, not whether you have ever rung or contacted. Cmdr Banks-I rang the Maritime Commander in relation to aspects of SIEV4 on 8 October, about the sinking, and we spoke again on the 9th, 10th, about the need for statements to clear up whether children had or had not gone overboard. I did not speak to the Maritime Commander on 7 October. Senator FAULKNER-You use that date because of the chronology in the Powell report-7 October? Cmdr Banks-Only because that is the day we are talking about-the children overboard. Senator FAULKNER-Yes, indeed. Cmdr Banks-I actually have not read the Powell report. I only got a copy faxed to me and because it is in colour- Senator FAULKNER-Tell me about it, Commander. We all faced that problem. It does not work very well in fax machines, does it? Cmdr Banks-No. Senator FAULKNER-The only benefit that I know of actually being a member of this committee is that you actually get a colour copy of the Powell report. I am sure there is no other benefit of actually being a senator on this committee at all. So I appreciate the problem. While I am mentioning the Powell report, I refer to page 8 of 13 of the general's report. If I could just quickly take you there: the date is 9 October 2001 and it is the last entry there. Cmdr Banks-I have not got a copy. Could you just say the time again? CERTAIN MARITIME INCIDENT CMI 314 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-I am sorry. It is p.m., it is not marked, it is the last entry in General Powell's report, page 8 of 13. I will just quote it to you: CO ADELAIDE became aware of how the Australian media were portraying ADELAIDE's role in SIEV4 incident via internet. I interpolate that you and I have talked about that in an earlier part of the hearings. It then says: Herald Sun 8 October front page viewed. CO concerned about the misinformation but took no personal action to remedy this as he was advised not to. That is contained in the Powell report. I am happy for you to have a copy of this if it is of assistance. Cmdr Banks-I think those are my notes, or they are Ms Bryant's or General Powell's notes. Senator FAULKNER-Yes, it also appears in the Bryant report; that is true. Cmdr Banks-I recollect that. The time is 9 or 10 October, I think. Senator FAULKNER-You may well be right. It is in this particular chronology as 9 October but, be that as it may, just for the record, I wondered about that part of this entry here that the CO is concerned about the misinformation, took no personal action to remedy this, as he was advised not to. Could you, for the benefit of the committee, indicate what `as he was advised not to' means? Cmdr Banks-I recollect-and I think that is a summary of events all the way through to 13 October-being advised not to, because we had the discussion on children being thrown overboard or not and then the chronology and the statements provided, which is where I became adamant that this had not happened, and did I then need to do anything about that? And the answer was, `No, that would be dealt with at other levels.' I think I may even have spoken about did I need to send another signal or did I need to send a letter to the press? And the answer was, `No.' Senator FAULKNER-For the benefit of the committee, from where and when does this advice not to take any action emanate? Cmdr Banks-I think it is a summary of discussions with CJTF 639 and Maritime Commander that there is no need to do anything further-I have told them. Subsequently I was asked to acknowledge receipt of the Op Relex op security instructions, which stated I was not to discuss it outside the military chain of command, and I acknowledged receipt of that and that clearly I had been advised not to go outside the immediate military chain of command to discuss information relating to SIEV4. Senator FAULKNER-But this advice comes from Maritime Command and CJTF 639? Cmdr Banks-And from CSO(O) at Maritime Headquarters, where I had been told not to send digital imagery, no more radio or TV telephone interviews and to abide by the letter of the CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 315 law of the OPSEC instruction. That took place over a period of time-10, 11, 12, 13 October. By the time I got back to Perth, on 14 October, I had no uncertainty that I was not to discuss it. Senator FAULKNER-Were you frustrated at all with the options that were available to you through the chain of command in this regard, given the inaccuracy of the information that, by this stage, was well and truly in the public arena? Cmdr Banks-No, I still viewed that the information provided to the military chain of command was correct and what was being reported in the media was not correct. I had assumed that that was a media action. Senator FAULKNER-One thing that has been discussed or commented on at some length is this whole question about the special arrangements that were put in place on 6 October with the direct provision of advice on Operation Relex to Air Vice Marshal Titheridge so he could brief Minister Reith. I do not know if you are well acquainted with that or not. Cmdr Banks-I am unaware of that. Senator FAULKNER-If you are unaware of it, it is probably very hard for you to comment. I am interested in understanding whether those arrangements had any impact actually on board HMAS Adelaide, on how you went about your communication role and responsibilities. But if you were not aware of it I imagine it would not have made an impact. Cmdr Banks-I was unaware of it. Senator FAULKNER-Have you had any recent communications about the possible need for you to appear before a board of inquiry or any other Defence inquiries that might be taking place? Cmdr Banks-No, I have not. Senator FAULKNER-Thank you. CHAIR-I think that concludes questions from members of the committee. I have a couple of final questions but the light is very large at the end of the tunnel, Commander. First of all, Senator Brandis, in the last day's hearing, introduced the notion of your professional judgment, and he introduced it by calling upon you to make a professional judgment about the condition of the vessel when you sighted it and so forth. That is a very good notion-the notion of your professional attachment. You have been in the Navy for, what, 25 years? Cmdr Banks-Twenty-five years. CHAIR-You are at the rank of commander and you are in charge of this vessel. Your professional skill and judgment relate to your seamanship and your experience as a Navy commander, don't they? Cmdr Banks-I believe so. CERTAIN MARITIME INCIDENT CMI 316 SENATE-Select Thursday, 4 April 2002 CHAIR-This question about the fog of war has it that people can get confused in the heat of the moment-which I think is what the fog of war idea seems to be about. Your training over 25 years-your exercise experience and so forth-is about being as clear and as precise as possible in difficult circumstances, among other things, isn't it? Cmdr Banks-Yes, it is. The fog of war issue has been something that has been on my mind a little bit. It is a term that I did not introduce. It has been introduced by other people. It is their expression, not mine. I view that the events of 7 October and 8 October took place in a largely benign environment. The fog of war relates more to a threat to the ship or to people. There was no threat to HMAS Adelaide or our people during that event. Whilst I was concerned-and certainly during the hours of darkness-at dawn, when the man overboard incidents took place, up until then I was fairly relaxed that we had effected a boarding safely and we were in control the situation. Throughout the remaining period, my concerns were raised a level but I was not swamped with information and I was not inundated with concern or worry unduly. I had the time to have signals drafted by my author officers and I had the time to be able to read those, review them, provide some analysis or some editorial comment and release them. So I do not think the fog of war applied, and it is other people's expression, not mine. CHAIR-So what you are saying, if I can put it in layman's terms-correct me if I misstate it, please-is that you are relatively confident in your own mind that you made the right calls and you perceived the right circumstances- Cmdr Banks-Yes. CHAIR-and that you acted professionally. Cmdr Banks-I and my ship's company acted professionally throughout. CHAIR-Indeed. My understanding, broadly, of the purpose of Operation Slipper was to engage in the blockade of Iraq and prevent a breakage of that blockade. That was part of this nation's overall commitment to the war against terrorism and it was aimed at Iraq and also the axis of evil countries that have been referred to by President Bush. It all fits into that jigsaw. That was part of the operation. Cmdr Banks-That was a part of the operation. CHAIR-The people on this vessel-on SIEV4-were fleeing from those tyrannical regimes, were they not, and from what you have said exhibited signs of desperation to try and make it to Australia? That is a fair call, isn't it? Cmdr Banks-I am not sure of the linkage between the two events. CHAIR-Here we are conducting a war against countries-and Australia is part of this- which have tyrannical regimes which are not democratic, which suppress their people's liberties and rights and which engage in or are associated with international terrorism. Operation Slipper was part of that, and proudly part of that. The people on SIEV4 were fleeing from those regimes, were they not? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 317 Cmdr Banks-I believe they were. CHAIR-That is fine. I do not want to press the point any further than that. Senator BRANDIS-Do you know, Commander Banks? Do you know if they were? Cmdr Banks-No, I do not. I have not interviewed any of them. CHAIR-The record will show it, because they have been interviewed and their countries of origin will be available to the inquiry at some point. My only point here was to make an observation in passing that a lot of their behaviour can be understood, given a sense of desperation on their behalf, and they exhibited behaviour which can be described in some circumstances as desperate. Illegal by our standards but- Cmdr Banks-You are asking me to make opinions and form impressions- CHAIR-Okay. I will not ask you to do that. Cmdr Banks-which I am not in a position to do. CHAIR-SIEV4 contained people seeking asylum in Australia, but it was not crewed by them, was it? It was crewed, as I think Admiral Shackleton said, by a number of people of Javanese appearance. Cmdr Banks-We were unable to identify the crew of SIEV4. During the embarkation on the Adelaide we believed we had identified three or four of them by the fact that they were ostracised by the SUNCs and they maintained silence throughout it. CHAIR-Were you asked in any way to identify who the people smugglers were, as opposed to who the refugees were? Cmdr Banks-Asked by whom? CHAIR-When you were collecting them from the water, were you asked by command to try and segregate the people smugglers from the refugees? Cmdr Banks-No. We were effecting a rescue at that stage, and who it was was irrelevant. CHAIR-When you were handing them over to the civilian authorities for processing, were you asked- Cmdr Banks-We identified those people who we thought were the crew. CHAIR-Were you asked at that point? Cmdr Banks-No, we told the Federal Police. CERTAIN MARITIME INCIDENT CMI 318 SENATE-Select Thursday, 4 April 2002 CHAIR-They were handed over to the Federal Police? Cmdr Banks-With the 220 SUNCs. CHAIR-The whole lot were handed over? Cmdr Banks-We identified that we believed these three or four people were the crew because they had sat by themselves and had made themselves separate from the other groups. CHAIR-When the boarding party inserted itself on SIEV4, did it seek to identify who was in command of the vessel? Cmdr Banks-Throughout the preboarding phase and the boarding phase the boarding party had attempted to identify who the crew and master were. We were unable to do that because that information was not provided by the people on board. I passed the DIMA warnings to the helmsman. CHAIR-Is it assumed that the helmsman was a crewman? There had not been some sort of mutiny? Cmdr Banks-The helmsman was in charge of the vessel. Therefore he should receive the notice. CHAIR-You could not identify positively who the skipper was? Cmdr Banks-No master was ever identified. CHAIR-On the sabotage that occurred to the vessel, the evidence is that the engines were sabotaged; I think the pumps were sabotaged and maybe the rudder. Are you able to say positively whether that was done by the refugees or by the people smugglers in charge of the vessel? Cmdr Banks-I am unable to answer that question. All I can say is that it was not done by HMAS Adelaide. CHAIR-But we do not know which group on that vessel did that damage to the vessel? Cmdr Banks-No, we do not-or no, I do not. CHAIR-SIEV4 was first tracked by aerial surveillance and its presence in the region was reported to you-I think that was the evidence, wasn't it? Cmdr Banks-Yes, it was. CHAIR-Do you know whether the authorities were aware of its port of departure? Cmdr Banks-I am unable to answer that question on the grounds of security. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 319 CHAIR-All right. We may seek an answer, not from you but from a senior officer, in a private hearing, if that becomes a necessary or relevant part of the inquiry. I am just going back to your levels of professional judgment now. We have dealt with the `fog of war' question. I just want to go through what I think are the main points of your evidence so that I have got a clear summary in my head. On the first point, your evidence is that there were no children thrown overboard. That is true? Cmdr Banks-That is correct. CHAIR-That is the finding of the Powell and Bryant reports. Cmdr Banks-I have not read them that closely. CHAIR-I can assure you that it is. It is your evidence, as well, that no signals or messages emanated from the Adelaide that children had been thrown overboard? Cmdr Banks-That is correct. CHAIR-I think it is also your evidence that, when you became aware of reports that children had been thrown overboard, you moved immediately to correct those reports. Cmdr Banks-`Moved immediately' is generous. In the time frame of 9, 10, 11 October, in consultation with CJTF 639 and Maritime Commander Australia, we discussed and resolved. CHAIR-So you reported to your senior officers. When you became aware that there had been misreporting of this incident in the media, you moved quickly-immediately, I thought it was, in the next day or so-to advise your senior officers that those reports were not true. Cmdr Banks-I actually think the brigadier rang me and questioned me. The conversation went: `I wanted to talk about this.' I do not think I initiated the call. But the thrust is correct. CHAIR-But, reasonably promptly-within a day of this report becoming public-evidence was obtained from you by a senior officer that the reports were not true. That is a fair statement, then, is it? Cmdr Banks-Yes, sir. CHAIR-You spoke to a Channel 7 production assistant or researcher, and you were later told that you should not have done so. Senator BARTLETT-Channel 10. CHAIR-Channel 10-what did I say? I have got Channel 7 and Channel 10 confused. They will both be annoyed with me! But you spoke to them-and you were told you should not have done so. Under what order were you told that you should not have done so? Was it this order that we have seen dated 8 August 2001 titled `Public comment and dissemination of information by defence members'? Was it that order? CERTAIN MARITIME INCIDENT CMI 320 SENATE-Select Thursday, 4 April 2002 Cmdr Banks-No. CHAIR-It was not? Cmdr Banks-No, it was the Op Relex. CHAIR-Under special orders for Operation Relex? Cmdr Banks-Yes. CHAIR-And what did those orders say as far as your ability to comment to the media was concerned? Cmdr Banks-They did not make it clear. CHAIR-They did not make it clear? Who was it that told you that you should not have commented? Cmdr Banks-Brigadier Silverstone, and Brigadier Silverstone is correct. I should not have commented. CHAIR-You have always accepted that you should not have, and you did that in your opening statement and you have done so all the way through. I am not questioning that. I might say, I am glad you did because if you had not have, maybe we would still not know the truth of this circumstance. You transmitted photos and the videotape up the chain of command. These were all properly labelled showing what they were and what they referred to, were they not? Cmdr Banks-Yes, they were. CHAIR-And none of the labels said that they referred to `children overboard' in the context that we have come to use that phrase? Cmdr Banks-No. All the emails were sent to military addressees. All contained photographs and text in various guises. Some had been sent before the boarding and some had been sent after the sinking. They were covering the gamut of events. CHAIR-And they were all correctly labelled, describing what they were about and when they occurred? Cmdr Banks-Yes. CHAIR-When Mr Howard visited the ship, you did not discuss this matter with him? You have given reasons this morning why you did not. Cmdr Banks-No, we did not discuss it. I saw a media clip the other day on TV which was not quite correct. We did discuss snippets of it, in the general sense of, `You guys did a great job of saving those people at Christmas Island.' We did not discuss the specifics of it. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 321 CHAIR-But you did not discuss the particular issue of children being thrown overboard? Cmdr Banks-No, we did not. CHAIR-To do so, you would have to have stepped outside the chain of command, wouldn't you? Cmdr Banks-Yes, I would have. CHAIR-In a later conversation with Admiral Shackleton, which unfortunately came to light by virtue of your notes-and we have apologised to you for that-you were assured that neither the Adelaide nor you were on trial here, that there would be an inquiry but that would be likely to focus on those further up the chain and on Mr Reith's office. Is that the key understanding? Cmdr Banks-The discussion of 25 December spoke in those terms. CHAIR-Thank you, Commander Banks. I have no further questions. When I welcomed you to this inquiry, I think I said on behalf of the committee that all of us respected your role and that of your crew. We would ask for our regards and that assurance to be passed on to the crew. In the time that you have been with us, those remarks have been more than justified, and we do appreciate that we do have, in the Australian Navy, officers of your calibre. Thank you very much. Cmdr Banks-Thank you very much, sir. I have one question on notice, for which I have a reply. Senator Bartlett asked last week whether at any stage SIEV4 entered Australian territorial waters. The answer is no. The closest it came was one to two miles north of the territorial limit. Senator BARTLETT-Thank you. CHAIR-Thank you. I think what you have constantly referred to as your well-known `defensiveness' need not apply. Cmdr Banks-Thank you, sir. CERTAIN MARITIME INCIDENT CMI 322 SENATE-Select Thursday, 4 April 2002 [12.22 p.m.] SILVERSTONE, Brigadier Mike, Commander Northern Command, Department of Defence CHAIR-Welcome to the inquiry, Brigadier Silverstone. We are sorry to have kept you waiting as long as we have. Usually people appearing before us have had a statement to make of what their evidence will be. Do you have such a statement? Brig. Silverstone-I have no statement. CHAIR-So you are happy to go to questions from the committee immediately? Brig. Silverstone-Yes, I am. CHAIR-I understand you are accompanied by a counsel. It is entirely up to you to decide how you want to deal with this, but it is quite reasonable, in our view, for your counsel to sit alongside you. Brig. Silverstone-We are quite comfortable with this, thank you. Senator BRANDIS-Brigadier Silverstone, at the relevant time-that is, on 7 October 2001-you were the commander of the joint task force which had been tasked to police Australian territorial waters to repel or to keep out people-smuggling vessels. Is that a fair description of your role? Brig. Silverstone-That is correct, Senator. Senator BRANDIS-Help me with the chain of command, please. Who reported immediately to you? Brig. Silverstone-At that time I had a number of vessels under my command: the CO of HMAS Adelaide, the CO of HMAS Warramunga and the CO of HMAS Geraldton. HMAS Brunei, which was en route to Ashmore Island, reported to me. We were supported by an Australian Customs vessel, Roebuck Bay, which did not report directly to me but I had communications with it. Senator BRANDIS-So the commanding officers of each of those naval or Customs vessels reported directly to you. Did they report directly to anyone else within their own service or were all lines of communication up the chain through you? Brig. Silverstone-They were through me, with the exception of the Australian Customs vessel. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 323 Senator BRANDIS-Do not worry about them; I am not interested in them. For the purposes of this exercise, the only person in the chain of command to whom, for instance, Commander Banks of the Adelaide reported was you. Brig. Silverstone-That is correct. Senator BRANDIS-To whom did you report? Brig. Silverstone-I reported to the Naval Component Commander, Australian Theatre, Rear Admiral Smith. Senator BRANDIS-Did you report to anyone else? Brig. Silverstone-No. For this matter, I did not. Senator BRANDIS-So, for the purposes of the HMAS Adelaide, it went directly from Commander Banks to Brigadier Silverstone to Rear Admiral Smith. Brig. Silverstone-Correct. Senator BRANDIS-Brigadier Silverstone, when did you first become aware of the interception of the suspected illegal entry vessel which we now know as SIEV4? Brig. Silverstone-We had an indication on the 6th- Senator BRANDIS-Just to make it clear, when you say `we', I take it you mean your office-that is, the office of the joint task force. Brig. Silverstone-My headquarters receiving- Senator BRANDIS-Your headquarters are in Darwin? Brig. Silverstone-In Darwin; that is correct. Senator BRANDIS-At all relevant times, you were in your headquarters in Darwin. Brig. Silverstone-That is correct. Senator BRANDIS-I am sorry; go on. Brig. Silverstone-About mid-afternoon on the 6th, I received a report from a P3 Orion indicating that this vessel was approaching Christmas Island. Senator BRANDIS-Who gave the instruction to the Adelaide to move close and, if necessary, to intercept the vessel? Was that you? Brig. Silverstone-I did, through my headquarters. CERTAIN MARITIME INCIDENT CMI 324 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-Let us get this straight, to start with. The communication between you and the Adelaide was both verbal and by signal. Is that right? Brig. Silverstone-That is correct. Senator BRANDIS-What form did the signals take? Were there different modes or media of conveying signals, or was there just one medium? Brig. Silverstone-There was one medium: formal signal traffic. Senator BRANDIS-The only two modes of communication, then, would have been a signal or a conversation over the telephone. Brig. Silverstone-That is correct. There is also the classified email system, which was used for the movement of photos later on and for some large documents, but not in connection with the command and control of the operation. Senator BRANDIS-As far as you are aware, there was no relevant email communication contemporaneous with this incident. Brig. Silverstone-No. Senator BRANDIS-You gave an order by signal to Commander Banks to move the Adelaide into a position where it could, if necessary, intercept and apprehend the SIEV4. Is that right? Brig. Silverstone-That is correct, yes. Senator BRANDIS-When you assumed the command of the joint task force-I understand that some of this may be intelligence material and, if you wish, you can ask us to move to a closed session-were you briefed with intelligence reports that had been obtained by Australian military authorities, or other Australian security agencies, concerning the instructions or advice given to occupants of SIEV vessels from the points of embarkation in Indonesia? Brig. Silverstone-No. Senator BRANDIS-Were you aware that there were intelligence reports in existence concerning instructions or advice given to the occupants of these SIEV vessels at the points of embarkation? Brig. Silverstone-I am not aware of specific intelligence reports. I think that- Senator BRANDIS-Perhaps I can help you. Can I read you a bit of evidence that Admiral Barrie gave to the Defence estimates committee on 20 February: ... for these events- CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 325 that is, the use of naval vessels to intercept people-smuggling vessels- it was a new turn. We had not seen it before, although I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. As I read the Admiral's evidence, that seems to be an intended reference to briefings given to the occupants of the people-smuggling vessels. Can you help us at all with that? Brig. Silverstone-I think it is appropriate to say-and DIMIA, the Department of Immigration and Multicultural and Indigenous Affairs, would be in a better position to provide you with information on this-that there is a good deal of briefing of the people trying to come into Australia within Indonesia in preparation for them to come down. They would appear to be quite well briefed on the immigration procedures and the schedule by which they will be treated-in terms of, if they come to Ashmore Island, how they would be moved to Darwin; the sorts of procedures they would go through to be dealt with on arrival in Darwin; and so forth. So there is a good deal of preparation from that period of time. There is a view that we formed as the government's new policy came into being that it would appear that there was a general level of awareness of some of the actions we had taken against previous vessels and that there was a degree of knowledge about that amongst the SIEVs. Whether they were briefed in detail or how they were provided with that advice is not clear to me. Senator BRANDIS-The involvement of the Navy and, indeed, the Army in an operation of this kind was a new phenomenon. This had been taken over from a function performed, until quite recently, by the Australian Customs Service. Brig. Silverstone-That is correct. Senator BRANDIS-Let me remind you of some evidence that Admiral Shackleton gave this committee last Monday. I put this proposition to Vice Admiral Shackleton: In fact, it is the case, isn't it, Vice Admiral Shackleton, that when the Navy took over the primary responsibility for policing the Australian maritime borders from illegal entry vessels the Navy discovered quite soon that the use of children for the purpose of moral blackmail by asylum seekers-either by threatening to throw them into the water or by, as in the case of the event on 24 October, throwing them into the water or by, as in the case of SIEV10, deliberately sinking the vessel and carrying children into the water from the sunk vessel or by, as in the case of SIEV9, otherwise causing physical harm to children-was a practice that was routinely engaged in as a tactic? The Navy discovered that, didn't it? Vice Admiral Shackleton's reply to me was: That is what we found. I then said to him: Hence your remark in your opening statement, I assume, that threatening to hurt people in order to gain entry into Australia was not a new tactic. Vice Admiral Shackleton's reply was: Correct. CERTAIN MARITIME INCIDENT CMI 326 SENATE-Select Thursday, 4 April 2002 Then he went on to agree with me that there was a pattern of behaviour, engaged in by the occupants of the suspected illegal entry vessels in implementing this tactic, which was identifiable. Can you tell us whether you agree with Admiral Shackleton's assessment of there being a pattern of such behaviour? Brig. Silverstone-Yes, I would agree. Senator BRANDIS-Is that on the basis of your own experience as the head of the joint task force? Brig. Silverstone-It is on the basis of the reports passed to me from the vessels engaged in this activity. Senator BRANDIS-Is it too high to say it is a pattern of behaviour, or do you accept that characterisation of it? Brig. Silverstone-I would characterise it as an occurrence that, when it is reported to me, is not surprising to me. Senator BRANDIS-I think the evidence has been, from a minute from Air Vice Marshal Titheridge, that on seven occasions of 10 SIEV vessels between September and December there were reports of threats or harm to children. Brig. Silverstone-That is correct, yes. Senator BRANDIS-Is that consistent with your experience? Brig. Silverstone-Yes, it is. Senator BRANDIS-Would you call that a pattern? Brig. Silverstone-I would call that a pattern, yes, Senator. Senator BRANDIS-I want to go then to what passed between you as commander and Commander Banks from the time the SIEV4 vessel was identified. The instruction was a signal, but we have also heard evidence from Commander Banks that there was more than one telephone conversation between you and him up to the time of what we have colloquially called the `children overboard'-or, as Senator Faulkner says, the `non-children overboard'-incident early in the morning of 7 October. I think we know what episode we are talking about. How many conversations with Commander Banks do you remember, Brigadier Silverstone- telephone conversations? Brig. Silverstone-From a review of my notes, I spoke to CO Adelaide possibly nine times on the 7th-certainly at least once the evening before and any number of occasions in the days that followed. Senator BRANDIS-I am not immediately interested in the days that followed. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 327 Brig. Silverstone-Yes. Senator BRANDIS-You will have heard or be aware of the controversy about a particular telephone conversation in which there is a question as to whether Commander Banks said to you something about a child in the water or a child overboard. Did you initiate a telephone conversation to the bridge of the Adelaide at about-and you will have to adjust the times for me, please-6 a.m. at the location of the incident? Brig. Silverstone-Not to my knowledge. Senator BRANDIS-Do you have a recollection of a conversation in which Commander Banks said to you words to the effect `there are men in the water and children thrown overside'? Brig. Silverstone-Not those words, but words similar to that-`men in the water and a child thrown over the side'. Senator BRANDIS-A child was thrown over the side. Do you have a diary note of that conversation? Brig. Silverstone-Yes, I do. Senator BRANDIS-Before we go to that, do you have a practice in relation to the diarising of telephone conversations? Brig. Silverstone-I have a practice of noting as people talk to me, so I have a clear recollection of what they said and so that I am focused on the issues they are raising to me. Senator BRANDIS-And is that a practice that you uniformly adopt when having telephone conversations in what we might loosely call command situations? Brig. Silverstone-Frequently, yes. Senator BRANDIS-Is it your practice to record as extensively as you can the words that are said to you and the words that you use, or is it your practice merely to make notes in a more abbreviated form? Brig. Silverstone-It depends on the pace of the conversation or the discussion and the length of the discussion. At times I will insert editorial comments as I am working through. At times I will take notes of key words. On other occasions they are more complete. Senator BRANDIS-I want to take you to the document which is appended to your statement to the Powell committee, which I am not quite sure how to identify. Perhaps I could hand you my copy. Brig. Silverstone-I have a copy in front of me if you are talking- CERTAIN MARITIME INCIDENT CMI 328 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-I just want to make sure we are talking about the same document. Would you mind passing to me the document that you have? Brig. Silverstone-I will pass the front page of that document or do you want the entire document? Senator BRANDIS-I want the diary note. Do you have the actual diary note? Brig. Silverstone-Yes, I do. Senator BRANDIS-Can I have the diary note itself, please? Brig. Silverstone-Absolutely. Senator JACINTA COLLINS-This might be a good time to give Brigadier Silverstone the opportunity to advise us of the update in his diary note. I have previously seen it. Senator BRANDIS-Senator Collins, I will conduct this examination methodically and I will not miss any relevant points. Senator JACINTA COLLINS-Well, off you go then. This is information that you are not aware of. Senator BRANDIS-If you would not mind giving me a moment, Brigadier Silverstone. But I would ask the courtesy of other senators not to jump in with other questions because I do not want to lose the flow of this. Just let me examine this, would you? Senator JACINTA COLLINS-The copy we have does not include a further change. It does not include the time notation. You might like to address that while we are waiting for Senator Brandis. Brig. Silverstone-The time noted- Senator JACINTA COLLINS-The copy we have of your notes does not include the time notation that you have later added to your personal record. Brig. Silverstone-Yes. Could I see that copy, please? Senator JACINTA COLLINS-Yes. Brig. Silverstone-That time is not where, Senator? Senator JACINTA COLLINS-No. In your copy of your notes you have an explanation about the time. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 329 Senator BRANDIS-Senator Collins, I will deal with it if I can just resume now, thank you. The document, or the pages you have handed to me, form part of a notebook called a Department of Defence Field Survey Notebook. That is a form of official notebook, is it not? Brig. Silverstone-That is correct. Senator BRANDIS-Was that the type of notebook which it was your practice to use to make these notes of telephone conversations concerning command decisions? Brig. Silverstone-That is correct, Senator. Senator BRANDIS-Let me hand it back to you, please. Brigadier Silverstone, was it merely telephone conversations that it was your practice to record in that notebook or did it include other data as well? Brig. Silverstone-Frequently, the majority were telephone conversations and, at times, if I was doing some analysis of the situation and seeking to identify approaches to the issues that were raised as a result of those conversations or passage of other information. Senator BRANDIS-Thank you. On the bottom half of the notebook as it lies open before you there are some words highlighted. Are those words which refer to the telephone conversation with Commander Banks of which we are speaking? Brig. Silverstone-That is correct. Senator BRANDIS-Can you identify for us, please, where, in the handwriting on the notebook, the words which describe that conversation begin? Brig. Silverstone-They start with the word `vessel'. Senator BRANDIS-Does that say, `Vessel disable the steering'? Is that right? Brig. Silverstone-Yes, that is correct. Senator BRANDIS-Immediately above the word `vessel' in the left-hand margin, there are the figures `0720'-and then a character that I cannot quite discern. Does that relate to this conversation? Brig. Silverstone-It does. It is a time that I added a number of days after the discussion when it became apparent that this was the subject of some interest. It is the time that I recollect speaking to the CO of HMAS Adelaide. Senator BRANDIS-So the figures `0720' and the character are not contemporaneous? Brig. Silverstone-They are not contemporaneous. Senator BRANDIS-What is that character after the second zero? CERTAIN MARITIME INCIDENT CMI 330 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-It is an asterisk. Senator BRANDIS-But that was an intended reference to introduce the time of the relevant conversation, wasn't it? Brig. Silverstone-It is based on my recollection of the time, yes. Senator BRANDIS-Is there anything above that in the diary note that is relevant to this conversation? Brig. Silverstone-No. Senator BRANDIS-And then immediately to the right of `0720*', we see some words in pencil. Brig. Silverstone-Correct. Senator BRANDIS-Which, as I read them, read: `Added three to four days after the event (vide Bryant Report). Is that what they read? Brig. Silverstone-That's correct. Senator BRANDIS-At this point, I think I should pause and ask you to hand the notebook to the other senators so that they can see what I am directing your attention to. Senator FAULKNER-What do you have a copy of, Senator Brandis? Senator BRANDIS-I have a photocopy from the Powell Report. When I inspected the notebook a few moments ago I copied onto my copy the words that appear in pencil there, which I am directing your attention to now, Senator Faulkner. Senator FAULKNER-Yes, I see. Senator JACINTA COLLINS-That is not in your record? Senator FAULKNER-No. Senator BRANDIS-Why don't we pause and let the other senators write that down as well so they can see exactly what is written there. Senator FAULKNER-So the pencil note applies to that `720K', does it? Brig. Silverstone-It is `720*', yes. Senator FAULKNER-I am terribly sorry- Brig. Silverstone-I know it looks like a `K'. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 331 Senator FAULKNER-to attack your handwriting, Brigadier. The `720*', as you mentioned before, was added three to four days after the event? Brig. Silverstone-Yes. Senator JACINTA COLLINS-But when was this note here added? Brig. Silverstone-It was added during the CO Adelaide's evidence, in front of my counsel, just to make it clear. There was a pencil mark added so there would be clarity. Senator JACINTA COLLINS-I think there is a date on it, isn't there? Senator FAULKNER-No, there is not. Brig. Silverstone-No, there is not. There is a date on the bottom. Senator JACINTA COLLINS-No. Senator FAULKNER-Senator Brandis has had the advantage of seeing this documentation that we have not seen. So the pencil insert says `Added three to four days after the event'? Brig. Silverstone-Yes. Senator FAULKNER-Then it says `(vide Bryant Report)'? Brig. Silverstone-Yes. Senator FAULKNER-Senator Collins has just asked you, I think, when that pencil- Brig. Silverstone-That pencil mark was added during the CO Adelaide's evidence when, I believe, Senator Collins indicated that she wanted to see the notebook. So I put it in there as a point of clarity. Senator FAULKNER-So it was last week? Brig. Silverstone-It was last week, in front of my counsel, yes. Senator BRANDIS-Senator Faulkner, would you mind handing that to the attendant so we can- Senator FAULKNER-I am just looking at the rest of the photocopy I have in front of me; I will not be a moment. Carry on and I will hand it back to you in a moment. In relation to the original notebook, when precisely does the Brigadier say the events of the- Senator BRANDIS-I have not asked him that yet, Senator Faulkner; if you would bear with me. CERTAIN MARITIME INCIDENT CMI 332 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-You have not asked him that-I thought that you did ask him that. Senator BRANDIS-Not in those terms but if you would just allow me, I will take him through it methodically. Senator FAULKNER-The trouble is that the document that I now have in front of me has other pencil annotations such as `0420'. You may have established when that was inserted. Senator BRANDIS-Could I see the notebook? Senator FAULKNER-Have you established that? Senator BRANDIS-No, not yet. I think, Senator Faulkner, this is easiest done- Senator FAULKNER-Well, no, it is not. With respect, there is one notebook and you are quite properly pointing out to us-or the Brigadier is-the pencil addition that occurs at 0720*. I think there is also a pencil addition in relation to 0420 hours. Brig. Silverstone-Yes. Senator FAULKNER-I do not think you have yet canvassed- Senator BRANDIS-What I have asked him is whether there is anything above 0720* which relates to what can loosely be called the child conversation. Senator FAULKNER-Sure. Senator BRANDIS-He has said, `No.' If the Brigadier could have the notebook back, I will clarify that from him, Senator Faulkner. Senator FERGUSON-In the absence of the chair, we should note that while we have been very liberal with the presence of television cameras, I do not think it is right that they should be filming documents that we are actually using. They were filming over Senator Faulkner's shoulder. Senator FAULKNER-I was not aware of that. Senator FERGUSON-I do not think it should be allowed. Senator FAULKNER-I have a process suggestion that I think is going to get us over a lot of this problem: why do we not respectfully ask the good Brigadier to provide us with a photocopy of the document as it now stands? Senator BRANDIS-We can do that. Senator FAULKNER-Would that not be a sensible way of dealing with this, instead of continually asking the Brigadier to pass up his original? It might help us. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 333 Senator BRANDIS-Except, I suppose, that the Brigadier seems to have taken pains to make some annotations in pencil for a purpose, and that would not be revealed by a photocopy. Senator FAULKNER-Yes, but having now sighted it- Senator BRANDIS-Senator Faulkner, I will keep going with this, if I may. Senator FAULKNER-Before you do, given that the Brigadier has attached to his witness statement a photocopy of his diary which is very helpful and we appreciate, could we ask the Brigadier whether it would be possible for the committee to be provided with a photocopy of that diary page as it now stands? Brig. Silverstone-Certainly, Senator. Senator FAULKNER-Thanks very much. Senator BRANDIS-Perhaps, that could be done over lunchtime. Senator FAULKNER-Lunchtime is almost upon us. Senator BRANDIS-That is right; so we do not need to interrupt. Brigadier Silverstone, the `0420' pencil notation half way up the bottom page, does that bear any relationship to the conversation concerning the child? Brig. Silverstone-No, it does not. Senator BRANDIS-When you made these notations in pencil, in the circumstances which you have described, for what purpose were they made? Brig. Silverstone-The ones against the 0720 or all of them? Senator BRANDIS-Both, really. Brig. Silverstone-The one at the top was when I was doing some calculations about time differences, based on the times there which are India-kilo. We have been working in so many time zones that I was clarifying- Senator FAULKNER-What do you mean by the one at the top? Brig. Silverstone-I cannot recall, if we had- Senator FAULKNER-Sorry, my question-which really is important for the Hansard record-is just a question of what you mean by answering Senator Brandis's question, `The one at the top'. I think we need to identify it more effectively. Senator BRANDIS-Let me do that. CERTAIN MARITIME INCIDENT CMI 334 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-By all means. Senator BRANDIS-There are two pencilled addenda to the bottom page of the notebook: one, towards the top of the page or just above half way up the page, is the figure `0420'. Brig. Silverstone-Yes. Senator BRANDIS-The other one, about three-quarters of the way down the page, is the words `added three to four days after the event (vide Bryant Report)'. Is that right? Brig. Silverstone-That is correct. Senator BRANDIS-Are those the only two pencilled amendments to the page? Brig. Silverstone-There are a number of lines on the page in pencil. Senator BRANDIS-Do they bear any significance? They are not text; do they bear any significance to you? Brig. Silverstone-Only that against the date 060535I/K-it is not clear on the photocopy, but it is on mine-I put a pencil line through the `06'. Senator BRANDIS-What does that signify? Brig. Silverstone-It signifies that when I wrote that `06' down on the morning that I was taking these notes, I initially wrote `06' down because my digital watch is set to zulu time, but I wrote the actual time in India-kilo, looking at my analogue watch. When I realised that `06' was incorrect, I put `07' to correct that time. Senator BRANDIS-All right. Senator FAULKNER-For the accuracy of the record, with respect, the brigadier will need to also mention-because this does not come up on the copy-the highlighting of some of the diary entries. Senator BRANDIS-Senator Faulkner, I was going to take him, item by item, to each variation- Senator FAULKNER-You seem to be missing out a significant number of the items though. Senator BRANDIS-That is because I have not reached them yet, Senator Faulkner; just be at peace. Brigadier Silverstone, do the `0420', the pencil notation and the line through the `06' immediately above it bear a relationship to the conversation with Commander Banks concerning the child? Brig. Silverstone-No, they do not. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 335 Senator BRANDIS-Right. Going to the point in the notebook where you have told us the reference to the conversation concerning the child commences, for what purpose were the pencilled words, added three to four days after the event, vide Bryant report, added by you last week in the circumstances which you have described? Brig. Silverstone-Just for clarity, so I was aware that that was an addition that I had made three or four days after, and for the point of making sure that that was noted there, I noted that. Senator BRANDIS-That is a reference, in turn, to the figures and character on the left-hand margin: 0720*. Brig. Silverstone-That is correct. Senator BRANDIS-That is added in pen three or four days afterwards. Brig. Silverstone-That is correct. Senator BRANDIS-By what process did you estimate or arrive at the position that this conversation took place at 0720? Brig. Silverstone-Because it is my very clear recollection that I rang CO Adelaide-or he rang me-and we had a telephone conversation at 0720 in preparation for a phone call I was required to make to Air Vice Marshal Titheridge. That phone call was required to be made by 0730 India-kilo that morning. Senator BRANDIS-In what time zone are these times recorded? Brig. Silverstone-This is Darwin; we are talking about Darwin time. Senator BRANDIS-And the incident locality time was? Brig. Silverstone-Two and a half hours earlier. Senator BRANDIS-Is that zulu time? Brig. Silverstone-No, that is Golf time. Senator BRANDIS-So we have Golf time, which is the incident locality time; zulu time, which is an international standard; and the local Darwin time. Brig. Silverstone-Yes. CHAIR-Is Golf time Western Australian time, the time in Perth? Brig. Silverstone-No. CHAIR-It is an hour further on. CERTAIN MARITIME INCIDENT CMI 336 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. CHAIR-Earlier. Brig. Silverstone-Yes. Senator BRANDIS-Brigadier Silverstone, was it your custom to record times in locality time-that is, in Darwin time when you are in Darwin, even though you are speaking to somebody in another time zone? Brig. Silverstone-Yes, it is, but it is also not my custom to regularly record the time. Senator BRANDIS-As I understand your evidence, you have told us that you can establish with reasonable certainty the time of this conversation because it occurred shortly before a fixed point in time-that is, 0730 Darwin time-at which you had to ring Titheridge. Is that right? Brig. Silverstone-That is correct. Senator BRANDIS-Does this reflect your assessment that the conversation took not more than 10 minutes, perhaps a little less than that? Brig. Silverstone-The conversation took about a minute, Senator. Senator BRANDIS-So a few minutes elapsed between the completion of that conversation and when you rang Titheridge. Brig. Silverstone-Three or four minutes, because my recollection is that I rang Titheridge not at 7.30 but at about 7.28. Senator BRANDIS-All right. Proceedings suspended from 12.59 p.m. to 2.01 p.m. CHAIR-We have a long day today, and I draw my colleagues' attention to the fact that we hope to get to Rear Admiral Ritchie this afternoon and then to Rear Admiral Geoffrey Smith, finishing with Rear Admiral Smith this evening. I hope we can complete that program, and I am sure my colleagues will bear in mind the need to be targeted in their questioning so that we do. Senator BRANDIS-Brigadier Silverstone, we have been provided by the Senate Printing Office with a colour photocopy of your diary. Do you have a copy of that there? I suppose you have the original. Brig. Silverstone-I have the original in front of me. Senator BRANDIS-Before the lunch break, I was asking you about the entry 0720* on the left-hand margin about three-quarters of the way down the page. Your evidence was that, as indicated by the pencilled addition to the right of those figures and that character, you added that entry three to four days after the event. You have told us how you were able to establish CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 337 that as the time and that it was the local Darwin time. Why did you add that time entry three to four days after the event? Brig. Silverstone-Because three to four days after the event it was apparent that this report had attracted considerable attention. Just as I had directed CO Adelaide to gather information to clarify what had happened on that, I reviewed my note. I noticed that I had not listed the time- did not have a time against that-and so I placed the time against that as a point of clarification against my recollection of the events of that morning. Senator BRANDIS-And, I suppose, in order to complete the record. Brig. Silverstone-Indeed. Senator BRANDIS-At the time that you made that entry of the time, was the conversation still clear in your mind? Brig. Silverstone-Absolutely. Senator BRANDIS-Tell me again, please, why it is that you can be so certain that your estimate of the time was correct? Brig. Silverstone-Because I had a requirement to pass the latest information to Air Vice Marshal Titheridge by 0730 Darwin time that morning and I had previously arranged with CO Adelaide to talk to him at 0720 in order to get a report on what was happening. Senator BRANDIS-And you met that deadline to speak to Air Vice Marshal Titheridge by 0730 a.m.? Brig. Silverstone-Indeed. My recollection is of sitting there at about 0728. I called him at that time and then called Rear Admiral Smith directly after that. Senator BRANDIS-So there was little or no interruption between the termination of your telephone conversation with Commander Banks and your making the telephone call to Air Vice Marshal Titheridge? Brig. Silverstone-There were a number of minutes. My conversation with Commander Banks was very short, and I had three or four or five minutes before I talked to Air Vice Marshal Titheridge. Senator BRANDIS-With the exception of the word `child'-and I will ask you about that in due course-were the balance of the pen-that is, ink-notes on that page of the notebook taken as you spoke to Commander Banks or were they taken immediately you concluded the conversation or were they written at some other time? Can you tell us, please? Brig. Silverstone-They were taken as I was speaking to Commander Banks. CERTAIN MARITIME INCIDENT CMI 338 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-I will ask you to take me through them in a minute, but let us get rid of this issue of the interlineation of the word `child'. Can I take you to the foot of the page. There, as I read it, you have written in a square bracket: [NOTE: `child' added after phone conversation with COADE before discussion with HSC]- and then there appear to be initials and then the date 2/12/01. Do I read that correctly, Brigadier? Brig. Silverstone-That is correct. Senator BRANDIS-The initials are yours? Brig. Silverstone-They are. Senator BRANDIS-COADE is the notation for the Commander of the Adelaide, Commander Banks? Brig. Silverstone-That is correct. Senator BRANDIS-HSC is the notation for the Head of Strategic Command, Air Vice Marshal Titheridge? Brig. Silverstone-That is correct. Senator BRANDIS-That note was, as appears on the face of it, written on 2 December 2001-that is, about two months after the event occurred? Brig. Silverstone-That is correct. Senator BRANDIS-But what it tells us is that the word `child' was interlined before you spoke to Titheridge, which you did, on your evidence, by about 7.28. Brig. Silverstone-That is correct. Senator BRANDIS-As I understand your evidence, all the other ink notes were written as you were talking, the telephone conversation between you and Banks finished and then, in the four or five minutes that elapsed before you telephoned Titheridge, you interlined the word `child'. Brig. Silverstone-That is correct. Senator BRANDIS-Why did you do that? Brig. Silverstone-Because that was central to the report from Commander Banks. At the time he was talking to me, he was talking quite quickly and I was having trouble keeping up. I CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 339 left the space there, put `thrown over side' and added `child' afterwards, and then the following question was to do with the age of the child. Senator BRANDIS-You are quite certain that the word `child' was put in before you spoke to Titheridge? Brig. Silverstone-Absolutely. Senator FERGUSON-The entry `5, 6 7', where you are referring to the age, was added at that time? Brig. Silverstone-That was Commander Banks's response to my question about how old the child was. Senator FERGUSON-Only `child' was added afterwards; the `5, 6 7' was put there originally? Brig. Silverstone-Indeed, yes. Senator BRANDIS-That `5, 6 7' plainly refers to the age of the person in the water? Brig. Silverstone-It does, and indeed I left a space between `men' and `over side' because I could not keep up, with the intention of going back and adding that word in when I had a chance. Senator BRANDIS-So, even if the word `child' had not been interlined, you say that, because of the presence of those numerals `5, 6 7' in an intended reference to the person in the water, it must have in any event been a reference to a child that you were noting as Banks spoke to you? Brig. Silverstone-Yes, absolutely. Senator BRANDIS-Brigadier, independently of your note, do you have in your memory a recollection of the conversation with Commander Banks? Brig. Silverstone-Yes, very clearly. Senator BRANDIS-When you refer to your note, you do so-if I invite you to-to assist, but you do not rely upon the note in order to perfect your memory? Brig. Silverstone-No, and particularly with regard to the age issue. When I spoke to Commander Banks, I asked how old they were and he said, `Five, six, seven-I can't tell properly,' or words to that effect. He had a degree of emotion in his voice as though wondering why I was asking those questions when he had to get on and deal with the circumstance in front of him. CERTAIN MARITIME INCIDENT CMI 340 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-You are probably aware that Commander Banks says that he recollects describing to you an incident in which a child was held overboard but, allowing for the fact that he concedes his memory is imperfect, he does not recollect telling you that a child was thrown or put overboard or into the water. How can you be sure that the reference here was not a reference to what Commander Banks told you about the child being held overboard as opposed to a child being put into the water? Brig. Silverstone-The first mention of that that I have a recollection of is on the afternoon of 9 September when it was apparent there was some controversy attached to these issues and he talked specifically about that issue to me. I regarded that as quite distinct from our conversation early on the morning of the 7th when he said to me that a child was thrown over the side. Senator FAULKNER-You mean October, Brigadier. Brig. Silverstone-Sorry, October. Senator BRANDIS-Let me get this straight. Is it your evidence that the first time the reference to the child being held overboard as opposed to thrown overboard was made to you by Commander Banks was in the afternoon of the 7th? Brig. Silverstone-No, on the afternoon of the 9th. Senator BRANDIS-Does your specific recollection of what was said to you by Banks on the morning of the 7th extend to a recollection that what was said to you was that a child had been put or thrown overboard or had ended up in the water? Brig. Silverstone-My recollection-clear recollection-is that Commander Banks said to me that a child was thrown over the side. Senator BRANDIS-When he said that to you, was that in response to a question you put to him or did he say it to you not in the manner of the response to a question? Brig. Silverstone-I do not recall, although I must say that my notes indicate that it was part of his speaking to me in a description of events. It was a sort of single paragraph, if you like. Senator BRANDIS-Perhaps we can bring this all together now. Would you tell us, please, as best as you are able-and referring to the note where necessary but having regard to what you have told us is your independent recollection, too-what you said to Commander Banks and what he said to you in that conversation from the start to the finish. Brig. Silverstone-I spoke to Commander Banks at about 0720, as arranged, in order to get a clear view of what was happening. He gave me a quick summary of events, talking about the boat being dead in the water, about the steering being disabled and about it being seven to eight nautical miles south of the contiguous zone. He then indicated that there were men in the water, that a child had been thrown over the side. I asked him then, `How old is the child?' He said, `Five, six, seven-I can't tell properly.' I then said, `Are they wearing life jackets?' He indicated CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 341 that a man or some of the men were but some of the men had removed their life jackets. I then said to him, `Have you got everybody?' And he said, `To the best of my knowledge, yes.' Senator BRANDIS-Was that the end of the conversation? Brig. Silverstone-It was. I might have then said a few words of encouragement-`Well, get on with it. Get the situation under control'-and then hung up and let him get on with it. Senator BRANDIS-I think in fairness to you, Brigadier Silverstone, the record should show that when you were giving the committee that account of the conversation you were not relying upon any notes or making reference to any of the documentary material before you. You were telling us from your memory what happened. Brig. Silverstone-Yes. Senator BRANDIS-For the purposes of assisting Major General Powell you gave a transliteration from your notes of the conversation in typed form. That forms the enclosure 2 to attachment 2 to Brigadier Silverstone's statement to the Powell report. Brig. Silverstone-It is a copy of an email that I had sent to Admiral Smith. Senator BRANDIS-In that email to Admiral Smith, which appears was sent at about 1.15 p.m. on 11 October, you give an account, apparently assisted by your contemporaneous diary notes, of your conversation with Commander Banks. Perhaps you might care to read that into the record, Brigadier Silverstone, rather than me take you through it. It reads: At about 070720 - 0726I/K Oct CO ADE and I had a conversation that went, from my notes and ... Perhaps you could carry on the narrative and read it into the record. Brig. Silverstone-It reads: [recollection of events]: "COADE: the vessel has disabled steering it is dead in the water 7 - 8 nm south. [The PII are] threatening a mess exodus There are men in the water and child thrown overside. COMNORCOM: How old? CO ADE: 5, 6 or 7 [I cannot tell properly.] COMNORCOM: [Are they wearing lifejackets?] COADE: yes, [though] some [men] have discarded theirs. COMNORCOM: Have you recovered them [the PII]? COADE: To the best of my knowledge [we've ]got everyone." CERTAIN MARITIME INCIDENT CMI 342 SENATE-Select Thursday, 4 April 2002 At about 0730hr, I relayed this information to AVM Titheridge (during a pre-arranged phone call) and then MC Senator BRANDIS-All right, you can stop there. At the time you prepared that communication I assume the conversation with Commander Banks was fresh in your mind, so you had an even fresher memory than you do now, together with the assistance of your contemporaneous diary notes. Brig. Silverstone-Yes. Senator BRANDIS-Are you quite satisfied that your recollection of the reference to `child thrown overside' is clear? Brig. Silverstone-Absolutely clear. Senator BRANDIS-And then, at about 7.30 local time, you conveyed that to Titheridge. Brig. Silverstone-Yes, I did. Senator BRANDIS-In your notebook there is not a reference to a conversation with Titheridge at 7.30. Can you explain why? Brig. Silverstone-Because I was not in the habit of recording every conversation that I had. It was required of me to phone and pass on to Titheridge what was happening. I have a recollection of my conversation with Air Vice Marshal Titheridge and it started with me passing on to him the events of the previous number of hours, all of which he actually was aware of. As I talked through the firing and the authorisation to board, he said, `I am aware of that, I am aware of that.' As we stepped through the events I said, `The only other thing is I have just got off the phone to CO Adelaide and he has just told me that there are men in the water and that a young child aged five, six or seven has been thrown overboard.' Senator BRANDIS-So you basically told him what you had just been told by Banks? Brig. Silverstone-Yes. Senator BRANDIS-And did you use your diary notes as you spoke to Titheridge? Brig. Silverstone-Yes, I did. Senator BRANDIS-All right. Just one last thing, Brigadier Silverstone: Senator Faulkner in his usual lovable way tried to make something of the highlighting. What is the significance of the yellow highlighting? Brig. Silverstone-In referring to that note subsequent to the event, trying to put statements together, I was always fumbling through the book so I highlighted that so that it stood out. Senator BRANDIS-And was all that yellow highlighting applied at the same time? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 343 Brig. Silverstone-My recollection is yes. Senator BRANDIS-And that, I assume, was just to identify or literally to highlight those parts of the diary entry that referred to this conversation? Brig. Silverstone-Yes. Senator BRANDIS-Thank you. Senator BARTLETT-Sticking with the document that we were on before, Brigadier, which was an email sent to Rear Admiral Smith outlining your conversation, I draw your attention to a statement right near the end where you state, regarding the actions of the Commander of the Adelaide: ... his pre-planning and preparation are all beyond reproach. He should be commended on resolving a difficult situation not criticised ... You say just above that, `Whether a child was disposed over the side or not is immaterial.' Could you just explain that statement? Are you saying that in an operational sense it is not really relevant or significant whether or not a child went over the side? Brig. Silverstone-In the sense that we had a report that ultimately proved incorrect, that it was a tactical report which was frangible information at the time, and that, as soon as we became aware that it may not be correct, we sought to fix it. In the kaleidoscope of events of the type that were occurring that morning sometimes these reports are wrong, whether they are written or oral. Senator BARTLETT-Is it fair to say, in an operational sense, with the sorts of things that you have to focus on when you have these sorts of events happening, that the specific reporting of a child being held up or a child being thrown in the water in itself was not a major detail in amongst the whole reporting of the broader situation? Brig. Silverstone-From the tactical management of this operation, as long as whoever went overboard was put back on board the vessel, that was all I was principally concerned with. Senator BARTLETT-With the conversation you detail there, which was basically the information going up the line, given that in an operational sense it is not that important, the main thing being, if there was anybody in the water-man, woman or child-that they were rescued, why do you think this one fairly unimportant detail in an operational sense seems to stand out so much once it gets further up the line? Brig. Silverstone-You will have to ask the people up the line, Senator. Senator BARTLETT-Okay. We have gone through in a fair bit of detail with you and similarly with Commander Banks the phone call that you had with him where there was- `dispute' is a bit harsh a word-uncertainty about what was said regarding whether a child was thrown overboard. Consequent to that it seems that it does not matter greatly specifically who CERTAIN MARITIME INCIDENT CMI 344 SENATE-Select Thursday, 4 April 2002 said what because within three or four days the situation had been clarified as to precisely what had happened and the facts of what had happened had been communicated up the line. Brig. Silverstone-It is important that we are as accurate as possible when we are passing information. Clearly there is a disagreement about this part of the information but, in the scheme of things, tactical information is frangible. It can be wrong across a whole range of events. The important thing, from the tactical commander's point of view, is that when you are faced with a situation you make an assessment of what has got to be done, you act on it, and then you move on. That was really our focus. As soon as we became aware that this was a controversial issue-and in the light of the election, clearly it was controversial-we took every step we could to clarify whether this event had happened or not. When we reached a conclusion about that, we then passed it up the line. So it was important in the way the information was treated later, but not important in terms of our immediate management of the event. Senator BARTLETT-In terms of the after-the-fact situations, such as you are in now- establishing what happened-it is not that important now because further information, clarification and details have been got together to flesh out what exactly happened, and that has been put together and reported back up through the appropriate channels. Brig. Silverstone-It is important to different people at different levels. Senator BARTLETT-The issue of what channels that information flowed up through is one that I am interested in, along with the idea of the line of command. You gave an interview on 19 December-these documents have not been released, but I believe they will be-and there is a report of that interview, the Bryant report. Are you aware of that occasion, with Jenny Bryant, Rachel Stephen-Smith and Major James Watson? Brig. Silverstone-Yes. Senator BARTLETT-At the start, the report says: Brigadier Silverstone stated that there had been frequent telephone contact between various people from Maritime Headquarters bypassing the chain of command throughout the relevant time. It stated that it is generally regarded as poor practice as it can lead to confusion, but that you were not aware of the degree to which it was occurring. What types of contact occur from maritime headquarters, bypassing the chain of command-the actual giving of orders, of seeking information or of providing information? Brig. Silverstone-I do not know. I became aware of this in the latter stages of Adelaide's handling of that. When I became aware of it I spoke to the Chief Staff Officer (Operations) and then to the Maritime Commander of my concern about that. Senator BARTLETT-Was action taken in relation to your concerns? Brig. Silverstone-I think that for future events that practice stopped. There are legitimate reasons for maritime headquarters to be speaking to the ships, and that is to do with their CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 345 ongoing programs and logistic support. The issue of concern for me was that of dealing with immediate operational events. Senator BARTLETT-Is it bypassing the chain of command for phone calls to come from the minister or ministerial staff direct to specific officers? Brig. Silverstone-I would view it as that, yes. Senator BARTLETT-There is a signature at the bottom of each page of your record of interview which I guess could be yours? Brig. Silverstone-Yes. Senator BARTLETT-I am assuming that you are happy with that as a true record of interview? Brig. Silverstone-Of that conversation, yes. Senator BARTLETT-The report talks about the conversation you had with Mr Reith on 31 October. Brig. Silverstone-Yes. Senator BARTLETT-This is where Mr Reith talked a lot about the video. He seemed to think that the video held the key to the real story about what happened. You said, `In retrospect, Mr Reith's concluding remark to the effect that "we'd better not see the video"' led you to conclude that, while you were usually direct in addressing such issues, you could not have made it clear to the minister that no children were in the water at all. You continued: Brigadier Silverstone's other lasting impression was not being able to understand how it was possible, by that stage, that Mr Reith was not aware of the conclusion that no child had been thrown in the water, and the tension that this created between Brigadier Silverstone's knowledge that no children had been thrown in the water and the need to be circumspect about what he said as he was not aware of what advice `the system' had provided to the Minister. Can I take it from that that you were surprised that Minister Reith apparently did not know that no child had been thrown in the water, but you were apprehensive about making that crystal clear to him because you were not sure how the story had been spun to him by others up the line? Brig. Silverstone-To clarify that, on the day that the minister came into my headquarters we were in the middle of managing another SIEV and had just concluded managing another three on the days before. When the minister arrived, I was involved in the close management of what was to become SIEV9. When I spoke to him briefly and he raised the issue of the video, I was somewhat taken aback that he had raised that issue. The problem I faced in talking to Ms Bryant on the 19th was that I did not have a clear recollection of my discussion with the minister, and I certainly could not recall the precise words I used to speak to him. When I spoke to Ms Bryant on that day we were in the middle of dealing with SIEV12 and trying to return that to Indonesian waters, so I was distracted at that time as well. CERTAIN MARITIME INCIDENT CMI 346 SENATE-Select Thursday, 4 April 2002 After this period I went on leave and after the Christmas leave I was then able to sit down and reflect on what had happened through this period. 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 of information. While I was thinking about 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. Senator BARTLETT-What did you take from that comment? Brig. Silverstone-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.' CHAIR-I think that if Senator Brandis were here he would remind us that Brigadier Silverstone said that without reference to any notes. Senator Ferguson interjecting- CHAIR-The witness was unprompted when it came to what was actually- Senator FERGUSON-I understand that, but the question was asking the officer for an opinion, which I thought you may have picked up. Senator BARTLETT-Once the minister left your office it says here that you reported the conversation to your chain of command. Who was that to? Brig. Silverstone-I think that in the Powell report it says that I contacted Rear Admiral Smith. My recollection now is that I did not contact Rear Admiral Smith. I contacted Rear Admiral Ritchie. Senator BARTLETT-That included making them aware of your impression that perhaps the minister was not actually aware of the fact that there were not any children thrown overboard? Brig. Silverstone-That is correct, yes. Senator BARTLETT-When I was questioning Commander Banks, he spoke about being asked to clarify what happened, providing the reports back. People-including yourself and possibly one other person-were telling him that he did not need to worry about correcting the record, that `it is not your job, it is other people's job; leave it to us'. I am paraphrasing him. That would be roughly correct, wouldn't it? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 347 Brig. Silverstone-I imagine so, yes. That is the sort of thing that I would say. Senator BARTLETT-It is not your job either, is it? It is your job to pass that up the line to somebody else, rather than personally make sure that the message has got through. Brig. Silverstone-That is correct. Senator BARTLETT-I notice that your record of interview says that it was not until a day or two after the immediate situation with the SIEV4 that you managed to look at the media and even become aware of criticism from the Democrats-it is nice to see that somebody actually noticed what we were saying during the election campaign-and that you realised that you had not seen written confirmation of the child overboard incident. In terms of all the now enormous amounts of paper that we have got about this incident-I am talking here more broadly, not just incidents involving children being held over the side, or whatever-is it normal to get that type of level of written confirmation of incidents? Brig. Silverstone-It is only because this became an issue. Senator BARTLETT-It is all the Democrats' fault. Oh well. So, normally, unless there is basically a need for clarification about a certain incident, such as a sinking, you would not get this sort of level of post-event confirmation? Brig. Silverstone-No. Senator BARTLETT-I am interested in more broadly than the specific incident. Hopefully, out of all this, we can also come up with some constructive ways of improving things. I note that your record of interview says: Brigadier Silverstone stated that there is a new culture in Defence, which seeks to be more responsive to the government/Minister, and that this may have `anaesthetised' people to some sensitivities, especially with regard to the uncertainty usually associated with reports of emerging tactical situations. Could you expand a bit more on that new culture in Defence, because I think it is an important broader issue that we should be aware of? Brig. Silverstone-I think that there has been a lot of work done on reminding Defence that the government is both the owner and the customer in terms of what we do and that we need to be responsive to the requirements of defence of the government. Consequently, there is a good deal of effort made to provide responses to information in order to meet government requirements. I think that, from my perspective, if it had not been for the requirement to provide this information to Air Vice Marshal Titheridge for the IDC, or whoever was going to use that information, I would not have called Commander Banks or spoken to Commander Banks at 7.20 on that day. It is my pronounced practice, pronounced in terms of my policy, that I do not ring my staff and the various COs working for me-indeed, it is my actual practice-when they are in the middle of boarding operations. I do not ring them when they are dealing with crises. I rely on them sending the op reps, and I remain available to them at all hours to answer questions on issues of concern. That is my practice, but on this particular morning, because of the requirement to pass this information to a Air Vice Marshal Titheridge and because we had CERTAIN MARITIME INCIDENT CMI 348 SENATE-Select Thursday, 4 April 2002 become more imbued with a sense of providing information to government as it requires, we did this. Senator BARTLETT-Just continuing on with your record of interview, it says that you considered `the desire to feed the media has sometimes been allowed to drive operational practices and that this should not occur', which reinforces what you have just been saying in a sense-that that desire to get information for media purposes is actually impacting on operational practice. Brig. Silverstone-Care needs to be taken in which information is provided-verbal reports of emerging tactical circumstances or written reports of op reps, as they have been called through the Adelaide series of signals, of emerging tactical circumstances. There have been a number of op reps, written information, that have proved to be either incorrect or to have different interpretations in the days afterwards. So the risk of you providing information as tactical events are emerging is that you will provide incorrect information. Senator BARTLETT-You are obviously concerned about the culture of Defence. Is that still present or has the culture changed since that time? Brig. Silverstone-I think there is a new policy and a view that recognises there is a need to balance the way we manage our relationships with the media. CHAIR-This has arisen since the election? Brig. Silverstone-The CDF and the secretary have just signed off on a new instruction, Senator. Senator BARTLETT-And you think that may significantly modify the culture that you express concerns about? Brig. Silverstone-That remains to be seen. Senator FAULKNER-I would just like to follow on from Senator Bartlett's questioning. On page 2 of the same statement, paragraph 10(b)-`Initiating contact with the commanding officers'-you stress this point: My reasoning for this was that commanding officers had sufficient demands on their concentration that they did not need the added complication of questioning from higher headquarters at times of pressure ... You go on in a little more detail: Otherwise, all reporting was to occur by formal OPREP signal traffic, the frequency of reports increasing and decreasing as the operational tempo rose and fell. This remains my intention and practice. I think you faithfully recorded that view in answer to questions Senator Bartlett asked. You then go on to make the point very strongly in paragraph 10(c): My telephone call to CO ADELAIDE, on AM 7 October, represented an exception to the practice described above. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 349 Again, you have made that clear. I am interested in understanding, firstly, why this exception was made. Is it only the fact that on 6 October 2001 these new arrangements of direct reporting to Air Vice Marshal Titheridge are put in place so that he can inform the minister on a regular basis about events that are occurring with the SIEVs? Is that the predominant reason or the only reason? Brig. Silverstone-The only reason I had that conversation with CO Adelaide on that morning was that I was required to talk to Air Vice Marshal Titheridge at 0730. That was the only conversation I had had with Air Vice Marshal Titheridge before or after in relation to any of these events. Senator FAULKNER-If those new reporting arrangements were not in place, you would have relied on formal op rep signal traffic? Brig. Silverstone-That is correct. Senator FAULKNER-Would this issue never have arisen if you had depended only on formal op rep signal traffic? Brig. Silverstone-This issue would never have arisen. Senator FAULKNER-Let us go back to 6 October-I think it was 6 October but you can correct me if I am wrong because you can look at this from your own operational expertise- which is when I understand the special reporting arrangements were put in place in relation to Air Vice Marshal Titheridge. Tell me when you became aware of the special arrangements. Brig. Silverstone-It is not special arrangements; it is a one-off occurrence. A requirement was passed to me by the Maritime Commander, Rear Admiral Smith, on the evening of Saturday the 6th, along with a range of instructions that I expected had come from the interdepartmental committee with regard to which warnings were to be passed, a particular warning to be translated into Bahasa, particularly that warning making it clear to the crew of the SIEV the new punishments and penalties for partaking in people-smuggling. In the process of that conversation, Rear Admiral Smith told me that I was to contact Air Vice Marshal Titheridge at 0730 my time-eight o'clock Eastern Standard Time-and gave me the Air Vice Marshal's mobile phone number. Senator FAULKNER-This is a result of a phone call or a more formal communication with Rear Admiral Smith? Brig. Silverstone-A telephone call. Senator FAULKNER-A telephone call? Brig. Silverstone-Yes. Senator FAULKNER-And it is standard operating procedure, is it, for a special arrangement like that to be put in place via a phone call? CERTAIN MARITIME INCIDENT CMI 350 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-I think that this particular operation is occurring in a very fluid policy environment and that the IDC is in fact taking questions and issues from a whole range of agencies and, as a result of addressing those issues, providing requests for certain action to be taken, levied against Defence. It is in that context, I would expect, that that information came to us. Senator FAULKNER-It is a rather special time in the electoral cycle too, isn't it? Brig. Silverstone-Apparently. Senator FAULKNER-You said before that you are aware of the significance and I accept the view that you have presented-you are aware of the sensitivities that an election campaign brings, the special caretaker provisions that apply and the like. This is as applicable to Defence as it is to any other area in the Public Service. There are no special rules that absolve Defence in relation to caretaker conventions, are there? Brig. Silverstone-No, Senator, but you also need to have regard to the issue that this operation has international relations and diplomatic consequences as these vessels are coming from Indonesia. It is a new policy for government and there is a range of activities occurring across these agencies that, on their own, require close coordination. So it is not necessarily solely linked to the election cycle. Senator FAULKNER-But in retrospect-because you can reflect on this now as it is a few months since these incidents-as Commander of Joint Task Force 639 do you believe that the special arrangement that we are speaking of worked or did not work, was helpful or unhelpful? What is now your view in relation to that special arrangement that was put in place on 6 October? Brig. Silverstone-Clearly, if we had not had that phone call I would not have spoken to Commander Banks and this particular misreporting of whether a child went in the water or not would not have occurred. Senator FAULKNER-In the phone call you had with Rear Admiral Smith, did you express any concerns to him about this? I appreciate that obviously you did not have a crystal ball beside your memo pad, but did you have any discussion with Rear Admiral Smith about the appropriateness or otherwise of what this special arrangement might mean operationally? Did you have a discussion with him? If you did, did you express any views for or against such a special arrangement? Brig. Silverstone-No, I did not. Senator FAULKNER-You just accepted that was the new operational procedure and you had to adhere to it? Brig. Silverstone-It was not a new operational procedure- Senator FAULKNER-Sorry, a special arrangement. You just accepted it was a special arrangement? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 351 Brig. Silverstone-For that morning, yes. Senator FAULKNER-Did you understand when an end point for the special arrangement might be? Brig. Silverstone-The moment I hung up the phone from Air Vice Marshal Titheridge. Senator FAULKNER-So it was a special arrangement that applied to only one phone call? Brig. Silverstone-One phone call, yes. Senator FAULKNER-Was there any indication whether there was any ministerial involvement or ministerial office involvement in determining this particular special arrangement? Brig. Silverstone-During the telephone conversation with the Maritime Commander he mentioned that it was to do with the Treasurer appearing on current affairs programs that morning. Senator FAULKNER-You mean on the Sunday morning? Brig. Silverstone-On the Sunday morning, correct. Senator FAULKNER-So this was not driven by Defence, it was driven by somebody else; is that what you are saying? We could obviously ask Admiral Smith but you could give me your assessment. Brig. Silverstone-I formed the view that it flowed from the requirements of the IDC. Senator FAULKNER-Were you clear it would end at the conclusion of that particular phone call to Air Vice Marshal Titheridge before you made the phone call or by the conclusion of the phone call? Brig. Silverstone-I was tasked to make one phone call. Senator FAULKNER-I see. You mentioned in answer to an earlier question that you would consider any phone calls that you might receive from a ministerial staffer as being outside the chain of command. I do not want to put words into your mouth but I think that is the evidence that you gave? Brig. Silverstone-Yes. Senator FAULKNER-And you stand by that? Brig. Silverstone-Yes. CERTAIN MARITIME INCIDENT CMI 352 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-Did you receive, during the time that you were joint task force commander 639, phone calls from ministerial staffers? Brig. Silverstone-No. Senator FAULKNER-I might come back to that because I will turn up a statement that you made a little earlier and come back to it, but I want to also explore the level of contact you have with the task force if I could. My colleague says you may want to add something to your earlier answer? Brig. Silverstone-Only that I had a recollection of a conversation I had with Mr Scrafton after he ceased being a ministerial adviser, but not during that period. Senator FAULKNER-Okay, we might come back to that conversation with Mr Scrafton after he ceased being a ministerial adviser a little later. You did not have any contact from Mr Hampton-I will have to turn up the reference-keen to contact the commanding officer of HMAS Adelaide? Brig. Silverstone-I did not talk to Hampton. There was a number of requests saying that Hampton wanted this information. I did not speak to him. I have seen Hampton and sat in the same car as him before these events, but my recollection is that there were requests for him to talk to director CO Adelaide and I checked with Admiral Smith, informed him of this and said that I did not think he should. Senator FAULKNER-You are making the point here, and it is a valid one, that such a request goes to joint task force 639 as opposed to its commander. Is that what you are saying to us? Your task force, or NORCOM, receives such requests, but maybe not you personally. Brig. Silverstone-Indeed. The title CJTF 639 talked to my headquarters and not necessarily specifically to myself. Senator FAULKNER-But is a phone call from a ministerial adviser to Northern Command or to the task force outside the chain of command? Brig. Silverstone-In my view, yes. Senator FAULKNER-As is a phone call to you- Brig. Silverstone-Yes. Senator FAULKNER-in either of those two Defence capacities or responsibilities that you have? Brig. Silverstone-Yes. Senator FAULKNER-In your role as commander of the joint task force or in your broader role, can you outline the number of contacts that Mr Hampton, as a starting point, made with CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 353 either the joint task force or Northern Command during the period we are talking about, which is early October 2001 to mid-November 2001? Brig. Silverstone-I would have to take that on notice. My recollection of Mr Hampton seeking clarification of what had happened out on Adelaide at this time is that the pressure for that came through Maritime Commander's media representative saying that Mr Hampton wished to talk to CO Adelaide or something to that effect. However, I will have to check the record and come back to you. Senator FAULKNER-I would appreciate it if you would, and I would also appreciate understanding, if you would not mind also taking this on notice, what other contact occurred with ministerial staffers, not necessarily limited to the staffers for the Minister for Defence; I am also interested in any other ministerial staffers, including prime ministerial staffers-PMO staffers-who may have contacted you or your command. Was Mr Hampton's contact made direct to NORCOM or the joint task force, or was it made direct to Maritime Command? Brig. Silverstone-I will have to check that. My recollection is that it went to Maritime Command and we received a request from Maritime Command coming in to my headquarters, but I would have to check the record. Senator FAULKNER-Was this a request to provide contact? What was the nature of the request that you received from Maritime Command? Brig. Silverstone-It was to do with seeking clarification of what happened with regard to SIEV4 and, I believe, the `child overboard'claims. Senator FAULKNER-Are you sure it was not a desperate attempt by Mr Hampton to try and see if he could effectively contact the commanding officer of Adelaide direct? Brig. Silverstone-I would have to check our record about that. Senator FAULKNER-In answer to a question I asked in an estimates committee-and I appreciate that you may not be aware of this-Rear Admiral Ritchie said: ... I was told by Brigadier Silverstone that the minister's media adviser wished to directly question the commanding officer of HMAS Adelaide and I directed Brigadier Silverstone that that was not to happen. Do you recall saying to Rear Admiral Ritchie that Mr Hampton wanted to directly question Commander Banks? Brig. Silverstone-My recollection of that is that that request had come through Maritime Headquarters to my staff, they had come to see me and I had gone back to Admiral Ritchie to get a stop put to it. Senator FAULKNER-I think we need to know, in relation to the ministerial staffers, precisely the number of contacts that were made and what their nature was. If I can move now to the contact you had with Mr Scrafton which postdates his role as a member of Mr Reith's CERTAIN MARITIME INCIDENT CMI 354 SENATE-Select Thursday, 4 April 2002 staff-and I appreciate that qualification-can you indicate to the committee when that contact took place? Brig. Silverstone-It happened at the end of February at the conclusion of the senior leadership group meeting here in Canberra. Senator FAULKNER-I missed what you said at the conclusion- Brig. Silverstone-The Defence senior leadership group. Senator FAULKNER-Thank you for that. What was the nature of that contact, please? Brig. Silverstone-He approached me and said that he had read the Bryant Report and the Powell issue and was interested in my comment that I was-I forget the precise words-not `reticent' but `cautious' about what I said to the minister. He thought that there was a contradiction between my statements to Powell and to Bryant, and he asked me about that. I described my recollection of the conversation that I had had with the minister. Senator FAULKNER-What was the contradiction that Mr Scrafton thought existed? Brig. Silverstone-Let me find the words here. Senator FAULKNER-Do you have a reference that I can go to? Brig. Silverstone-I am looking at my statement to Ms Bryant. He talked about my comment-my knowledge that no children had been thrown in the water and the need to be circumspect. Senator FAULKNER-Can you point me to that reference, please? Brig. Silverstone-That is on the third page of my statement to Bryant. The section heading is `Conversation with Mr Reith'. Senator JACINTA COLLINS-Is that enclosure 1 or 2? Senator FAULKNER-Is it a numbered page? Brig. Silverstone-It is the record of interview with Ms Bryant. Senator FAULKNER-It is a paper wall, Brigadier. I am ordering a truck to take it all back to Sydney. Take me to the relevant part. Brig. Silverstone-It is under `Conversation with Mr Reith'-second paragraph, second-last line-where it talks about my thought of the need to be circumspect in what I said. Senator FAULKNER-In Ms Bryant or her staff's record of interview, which you have signed, it says: CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 355 Brigadier Silverstone's other lasting impression was not being able to understand how it was possible, by that stage, that Mr Reith was not aware of the conclusion that no child had been thrown in the water, and the tension that this created between Brigadier Silverstone's knowledge that no children had been thrown in the water and the need to be circumspect about what he said as he was not aware of what advice the `the system' had provided to the Minister. Was it that statement that Mr Scrafton was referring to? Brig. Silverstone-Yes. Senator FAULKNER-How would Mr Scrafton have been aware of your statement to the Bryant Report? Brig. Silverstone-I do not know. Senator FAULKNER-Were you surprised by that? Brig. Silverstone-Somewhat, but I did not know. Senator FAULKNER-Did you ask him? Brig. Silverstone-No. Senator FAULKNER-The first thing I would have done is to ask him: how do you know about it? Brig. Silverstone-I did not ask him. Senator FAULKNER-Anyway, he knew, didn't he? What did he say to you about that particular statement? Brig. Silverstone-He asked me about that-what did I mean? Senator FAULKNER-In what capacity did he ask you? Brig. Silverstone-I think as a colleague at the SLG, the senior leadership group. Senator FAULKNER-So Mr Scrafton is engaging in questioning you at the Defence senior leadership group about these matters. At this stage, of course, Mr Scrafton is not a ministerial staffer, is he? Brig. Silverstone-I believe not. Senator FAULKNER-He would not be at the senior leadership group if he was, would he? Brig. Silverstone-That is unlikely. Senator FAULKNER-So he holds some senior position. He is attending the senior leadership group as part of the Department of Defence executive, effectively. CERTAIN MARITIME INCIDENT CMI 356 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. Senator FAULKNER-That is an interesting status for him to have, given certain imperatives that some are suggesting about ministerial parliamentary staff not being called before this committee. I am very interested in Mr Scrafton's engagement in this sort of activity when he is no longer a ministerial staffer. That is very helpful to know and understand, I can assure you, Brigadier. So where did this conversation go? Brig. Silverstone-He asked me about it. I recounted the conversation, as I recalled it, with the minister, explaining once again that he had asked about the video and that I had told him that the video did not show the children in the water. I then said words to the effect that we had concerns as to whether any children went in the water at all and we had investigated that, and then the minister left my office, saying, `We'd better not see the video, then.' Senator FAULKNER-Brigadier, I would admit that I am a bit out of touch with things in Defence; it is a long time since my very enjoyable days of being a minister in the Defence portfolio. I quickly add that I am terribly jealous of all those who now hold those positions. Technically, as I saw Mr Scrafton's position on the witness list before the last Senate estimates committee hearings, he would probably be a two-star equivalent, wouldn't he? Brig. Silverstone-I do not know. In terms of his position with the minister, or his position- Senator FAULKNER-No, not his position with the minister; his position in the Defence bureaucracy. Brig. Silverstone-He is a senior Defence civilian, yes. Senator FAULKNER-Is he senior to you in the Defence organisation? Brig. Silverstone-The equivalence of his position is, yes. Senator FAULKNER-That is what I thought. That is why I described it as a two-star position. I am a bit out of touch with this, but that was my understanding. Is my understanding basically right? Brig. Silverstone-I believe so. Senator FAULKNER-So he also comes to you and asks you this, effectively, as a superior in the Defence organisation, in the broad. I am not going to go into the diarchy, because Dr Hawke will probably write me a long letter and tell me that I am wrong. Brig. Silverstone-I did not feel under any compulsion to respond to him because of his position, Senator. Senator FAULKNER-You did not feel under any obligation to talk to him? Brig. Silverstone-No. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 357 Senator FAULKNER-Why did you? Brig. Silverstone-Because I had been musing over this conversation with the minister since I had come back from leave and, without thinking about whether I should or should not comment on the matter, I told him. Senator FAULKNER-Is that the only conversation you have had with Mr Scrafton? Brig. Silverstone-Yes. Senator FAULKNER-So where did it end up? You had that conversation; did it go any further? Did you just take his views on board, or did you act on them? Brig. Silverstone-No. We had that conversation. It was right at the end and there was a beer or a glass of wine or something-I think I had a glass of light beer and then left. This was right at the end of the conversation. Senator FAULKNER-So you just took his views on board. Brig. Silverstone-Yes. Senator FAULKNER-Would it affect the sort of evidence you gave at a meeting like this? Brig. Silverstone-Absolutely not. Senator FAULKNER-Could you tell us the date of the senior leadership group meeting? Brig. Silverstone-I would have to check my diary-it was 28 February or 1 March. Senator FAULKNER-It was after the Senate estimates hearings, in fact. Brig. Silverstone-If that is the case, yes. Senator FAULKNER-It was also the senior leadership group meeting that occurred at the same time that CDF did his press conference about his views on the children overboard issue. Brig. Silverstone-That is correct. Senator FAULKNER-It is the same meeting- Brig. Silverstone-Yes. Senator FAULKNER-where CDF in fact said that he was satisfied that children were not thrown overboard? Brig. Silverstone-At the Senate legislative committee? CERTAIN MARITIME INCIDENT CMI 358 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-No. He made a public statement to that effect around the time of the senior leadership group meeting. Brig. Silverstone-That children were not thrown overboard? Senator FAULKNER-Yes, CDF did. Are you aware of that? You may not be aware of it. Brig. Silverstone-My recollection is that at the press conference he shifted his position on this. Senator FAULKNER-Yes, that is what I am saying. Brig. Silverstone-No, you said that he said that children were not thrown overboard. Senator FAULKNER-I did say that; I did mean to say that. CDF- Brig. Silverstone-Sorry, indeed yes. Senator FAULKNER-Are we at cross-purposes? Brig. Silverstone-We were at cross-purposes. Senator FAULKNER-Was that issue on the formal agenda of the senior leadership group? Brig. Silverstone-The CDF and the chiefs spoke to the senior leadership group, and the CDF indicated what he was going to say before going out to the media conference. Senator FAULKNER-And did Mr Scrafton's discussion with you precede those comments or was it after- Brig. Silverstone-No, it was well after-at the end of the senior leadership group. Senator FAULKNER-Thank you for that. We are aware of the statement that CDF made at that time; when did you, Brigadier, become aware that children had not been thrown overboard? Brig. Silverstone-Pretty definitely, on the morning of 10 October at 1114-I think that is the time it took- Senator FAULKNER-When did you become aware that the photographs that allegedly depicted children who had been thrown overboard were actually photographs of another event-the sinking of SIEV4? Brig. Silverstone-Whenever the email with the photographs hit my desk. It was an issue of whether or not they were of children thrown overboard. I saw the photographs and was not happy that they had been circulated beyond reasonable control. The only dealing I had with that issue was to tell the Maritime Commander that we should tighten up on the control of the photographs. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 359 Senator FAULKNER-When you had your discussion with Air Vice Marshal Titheridge at 7.28 a.m. on 7 October, it also was pretty brief? You mentioned that your phone call with Commander Banks was a fairly brief one. Brig. Silverstone-Yes. Senator FAULKNER-Was the discussion with the air vice marshal pretty brief, too? Brig. Silverstone-Yes. Senator FAULKNER-It only took a minute or two? Brig. Silverstone-Thereabouts, yes. Senator FAULKNER-Just for the record, can you indicate what you said to the air vice marshal? Brig. Silverstone-I have already done that, Senator. Senator FAULKNER-Fair enough. Did you talk to Air Vice Marshal Titheridge about the op reps at all? Brig. Silverstone-I did not speak specifically about op rep numbers, but I took him through a quick summary of the information that was in the op reps, and he indicated that he was aware of those. Senator FAULKNER-Was there any indication whether the air vice marshal had read the op reps? They may not have been available to him; I do not know. Brig. Silverstone-I do not know how he had the information about the preceding events that I had reported to him. Senator JACINTA COLLINS-Brigadier, can you indicate which op reps or sit reps were reported to him? Brig. Silverstone-No. I would have spoken to him quickly about what had happened through the night. I cannot recall which op reps, but I can say that I spoke about the difficulties that Commander Banks was facing in terms of the boarding. I said that I had authorised the boarding at about 0535 my time and that I had authorised shots across the bow at about 0608 my time. He said, `Yes, I'm aware of that,' and, `Yes, I'm aware of that,' as I went through that information. Then I said, `The only other information is that I have just got off the phone to CO Adelaide, and this is the circumstance.' Senator JACINTA COLLINS-So they were not yet the sit reps in relation to the man overboard? CERTAIN MARITIME INCIDENT CMI 360 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-No, because they did not exist at that time. The only information I had about the current circumstances on Adelaide came from talking to CO Adelaide just before talking to Air Vice Marshal Titheridge. Senator FAULKNER-As you properly say, the note of the phone conversation with Commander Banks was, in the first instance, a contemporary note that you took down at the time of the call. There have been a number of additions or changes-call it what you will-to that. Are you concerned that that in any way affects the integrity of the original note that you took? I understand the background of it: you and Senator Brandis have worked through that in some detail. I am wondering, however, whether you are concerned that the changes, the amendments, that postdate the original note might leave an impression that the original record is less than adequate. Brig. Silverstone-No. It is very clear in my recollection of that conversation what was said. The note reflects that. The word `child' was added in the gap between my conversation with CO Adelaide and my phone call to HSC, and that word was added into the gap that I left while taking the contemporaneous note because he was talking quite quickly. Senator FAULKNER-I know how busy you are in your role as Commander of Joint Task Force 639, and I do not expect you necessarily to answer this in the affirmative: did you have any opportunity on either 7, 8 or 9 October to see any of the television news reporting of these incidents? Homing in on the significance of the words `child' and `children', I wonder whether you were able to pick any of that up and, if you did-I am not suggesting you necessarily saw it-how you responded. Brig. Silverstone-This whole thing was a busy time. I think it was on the Monday or the Tuesday that I became aware of the press reporting on this and saw that it was being given quite considerable coverage. It was also at this time that it was causing concern to the Maritime Commander and Commander Australian Theatre. We had a discussion about this and the need to confirm what exactly happened or did not happen. All through Sunday-in fact, once I reported that conversation to Titheridge-the issue of the child in the water was a gone issue for me, in that everyone had been recovered and we had moved on to the next phase of this operation. I did not give it another thought until the Monday or the Tuesday, when I saw the press coverage and we went back and checked on it. Senator FAULKNER-The reason I am asking you this is the issue of `child' as opposed to `children'. That is my focus. The Prime Minister, for example, on the Alan Jones radio program on 8 October, said, `Genuine refugees don't throw their children overboard into the sea,' and there were a number of other public references to `children'-plural-as opposed to `child'- singular. I wonder whether you heard those and, if you did, whether you responded. Brig. Silverstone-I would not have focused on that. The subject was children in the water or threats to children, and the specific instance here was a report that a child was thrown overboard. Senator FAULKNER-When you had your conversation with the minister on 31 October- and you touched on this a little earlier-was the minister accompanied by staff members? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 361 Brig. Silverstone-There was a staff member with him, but my recollection is that he was on the phone the whole time. In fact, the final comment from the minister occurred as this fellow finished on the phone and they stood up and left. Senator FAULKNER-The final comment being his statement, `We'd better not see the video, then.' Brig. Silverstone-Yes. This was actually said to the staffer, as opposed to me. I do not know who the staff member was. Senator FAULKNER-I see. So that comment was not made to you; you overheard that comment, did you? Brig. Silverstone-We are sitting there, he stands up and he looks across at this other fellow and says, `We had better not see the video then.' Senator FAULKNER-I see. Do you know who that other fellow was? Brig. Silverstone-No, I do not. Senator FAULKNER-You just know that he was a ministerial staffer of former Minister Reith? Brig. Silverstone-Yes. CHAIR-Would you recognise him again? Brig. Silverstone-Possibly. It was not Mr Hampton. CHAIR-I am just asking if he was recognisable. Senator FAULKNER-The less said about that the better, I think! But I think it is probably significant that the comment was not made to you, Brigadier. Perhaps I did not appreciate that it was made to the staffer, but it was in response to something that you said to the minister. Brig. Silverstone-Yes. Senator FAULKNER-You have the staffers on the phone; you have your conversation, which you have reported to us, about the video-that is right, is it not? Brig. Silverstone-We have the conversation about the video, I then continue to say that we had cause for concern as to whether any children went into the water and we have investigated the issue. I pause, and about the time that I am pausing the staffer is finishing on the phone and the minister says, `We had better not see the video then,' and stands up and leaves my office. Senator FAULKNER-But Minister Reith says that to his staffer; he does not say that to you. CERTAIN MARITIME INCIDENT CMI 362 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes, he says that to his staffer. Senator FAULKNER-Is there any question that the then minister hears your comment about concerns about whether children had been thrown in the water or not? Brig. Silverstone-I said that before he made the comment about not seeing the video. Senator FAULKNER-So there is no doubt in your mind that he heard that? Brig. Silverstone-Yes, but, as I have indicated, I used words to that effect because at the same time that I am having this conversation I am thinking, `Why doesn't he know this? Where do I stand in terms of the caretaker requirements?' So I have this double conversation going on in my head. That is why I do not have a specific recollection about the precise words. But I said words to that effect and I expect that he would have heard. Senator FAULKNER-So there are two elements to it, aren't there? The Commander Joint Taskforce 639 says to the minister that you have concerns that no children had been thrown overboard-that is true, isn't it? Brig. Silverstone-Yes. Senator FAULKNER-And secondly, at the conclusion of that brief part of the conversation, the minister says to his staff members, `We had better not see the video then.' Brig. Silverstone-Yes, that is correct. Senator FAULKNER-And that is the end of the conversation. He is up and out of there, basically. Brig. Silverstone-Yes. Senator FAULKNER-With his staff member. Brig. Silverstone-Yes. Senator FAULKNER-He could not get out quick enough. Brig. Silverstone-I would not say that. He left the room saying farewell and departed the building. Senator FAULKNER-So if the staff member was on the phone for most of the time then none of your staff would have had any discussions, I assume, with the staff member. Brig. Silverstone-That is correct. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 363 Senator FAULKNER-Just so that I am clear on this, how much of those two parts of the interplay with the minister about children being thrown overboard and about the video was reported up the chain of command? Brig. Silverstone-That occurs very shortly after that. I think Rear Admiral Smith was away, so I rang Rear Admiral Ritchie to tell him about that. Senator FAULKNER-Yes, I know, but both elements? Brig. Silverstone-Yes. Senator FAULKNER-Both elements? Brig. Silverstone-Yes. Senator FAULKNER-Thank you for that. In your original diary note-thank you very much for the colour version that you have provided to us-that was attached to your witness statement that we have had the benefit of now for some time, and so did those who prepared the official reports, I notice a little earlier on the page, or perhaps the page before that, Mr Moore- Wilton's name gets a guernsey. You might just tell us what the detail is of that communication, please. Brig. Silverstone-It would be as part of the discussion that I have had with the Maritime Commander. At this time there is considerable discussion, apparently, within the IDC, with various departments having a view about what we should do with the SIEV. The Maritime Commander mentioned Moore-Wilton's name-and I have written it there. Underneath that it looks like `No chance: CDF. Direct inshore. Mission aim: deter from coming to'. I cannot recall the specific background to that other than that there was discussion about what to do next. There is a view about whether these people should be taken direct to Cocos Islands or put ashore at Christmas Island. That is just the broad context to what we are also trying to manage at the present time. Senator FAULKNER-So those three arrow points under Mr Moore-Wilton's name are `No chance: CDF'? Brig. Silverstone-Yes. Senator FAULKNER-What is the next one? Brig. Silverstone-`DIR', which I would usually write to mean `direct' and then `inshore'-I have no idea what that means. Senator FAULKNER-So it is `DIR inshore', is it? It is really hard to pick up. Brig. Silverstone-That is what it looks like to me, yes. Senator FAULKNER-You have got the original- CERTAIN MARITIME INCIDENT CMI 364 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-I have the original. Senator FAULKNER-I thought you might struggle less than I am. What is the last arrow point beneath that? Brig. Silverstone-`MSN', which is `mission', then `Aim: deter from coming to', and that would mean to deter SIEVs from coming down. Senator FAULKNER-So this is not a direct contact with Mr Moore-Wilton? Brig. Silverstone-No. Senator FAULKNER-You are being told-well, you tell me what you think it is. Brig. Silverstone-It is part of a discussion I am having with, I believe, the Maritime Commander-the rest of the conversation up the page is with the Maritime Commander, so this probably is as well-who is providing me with advice. He is obviously aware of some discussions that are occurring up the line from us and he is providing a context to what is happening to us at the present time. Senator FAULKNER-So, while you were the commander of the joint task force 639, you would not have had any direct contact with officials of the Department of the Prime Minister and Cabinet? Brig. Silverstone-No. Senator FAULKNER-But you are kept informed of events as they develop via-what?- contact with the task force? Is that how it works? Brig. Silverstone-Word is passed down the chain from the representative that goes from, I believe, Air Vice Marshal Titheridge's organisation and then the word is passed down through the headquarters-in this case directions given to translate various things into Bahasa and whatever else. My notes above the page would indicate that this has come out of a summary of events at an IDC. Senator FAULKNER-But do any directions, orders or instructions that you receive, Brigadier, come from Defence sources only? Brig. Silverstone-Yes. Senator FAULKNER-ADF only? Brig. Silverstone-Yes. Senator FAULKNER-So when there is a government imperative, whether it be direct from the task force or indirect, how is this transmitted to you? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 365 Brig. Silverstone-It comes from the Maritime Commander, who is the naval component commander for the purposes of this operation. Senator FAULKNER-Yes, but only the Maritime Commander? Brig. Silverstone-If he is absent, then his deputy, but it comes through the naval component command process. Senator FAULKNER-I appreciate that-it is helpful to understand. You certainly would not have any direct contact with any of the IDC members or the like? Brig. Silverstone-No. I do have contact with Director-General, Coastwatch, Rear Admiral Bonser, and we talk every day throughout all of this and normally a number of times a week when the pressure is not on for this operation, because we work in support of each other on a daily basis. Senator FAULKNER-When the Maritime Commander contacted you with a directive from government, is it clear to you that that is its status? Brig. Silverstone-Yes. In the context of this operation, I would say generally, yes, because this operation is occurring with a very high degree of interagency coordination. A lot of that- or most of that-is done through the interdepartmental committee. So, where there are adjustments to policy, they would come from that. If it is just a continuation of a current act, then it may well come solely and direct from the naval component command. CHAIR-I am wondering, Senator Faulkner, in view of the time, whether this would be a convenient place to pause. We will pause for a moment, but we will not adjourn just yet. We have an organisational problem, in that the next witness is Rear Admiral Chris Ritchie. He is due to depart Canberra at seven o'clock this evening so he can link with a flight to Japan tomorrow. This may be bad news for you, but let me canvass it in your presence, Brigadier. The options are to excuse you, deal immediately with Rear Admiral Ritchie and bring you back at the conclusion of Rear Admiral Ritchie, or to excuse Rear Admiral Ritchie straightaway and find some future time in which we might be able to call him. They seem to me to be the two options. I am in favour of the first one, if that is manageable. My understanding is that there is no immediately pressing requirement on you as there is on Rear Admiral Ritchie. Brig. Silverstone-That is correct. CHAIR-First, let me ascertain whether that is a course that the committee- Senator FAULKNER-I think Rear Admiral Ritchie could be relieved. This will bring a certain discipline to the questions. CHAIR-Yes, I think that might be right. Do we therefore opt for the first option, in which case you have a question, Senator Ferguson. CERTAIN MARITIME INCIDENT CMI 366 SENATE-Select Thursday, 4 April 2002 Senator FERGUSON-Brigadier Silverstone, following on from Senator Faulkner's questioning about the video and the former minister, I have not found this in the statement you have made but is it not a fact that when you were discussing the issue of the video with the minister the term that was used was that the video was inconclusive? Brig. Silverstone-I said to him-I have to check the- Senator FERGUSON-I think it is important we get the term, what was actually said, right. Brig. Silverstone-I said in my statement that I had not seen the video and that I believe the video did not provide a very clear picture of the events of that morning. I then stated words to the effect, `Minister, the video does not show a child being thrown in.' Senator FERGUSON-So it does not show very clear events? Are you quite sure that the words that were spoken either to you or to his adviser were, `Then we had better not see it?' Are you sure they were the exact words or may he have said, `There is no point in seeing it if it is not very clear and it does not show anything conclusively'? Are you sure of the words? Brig. Silverstone-The words he said were, `We had better not see the video then.' What he meant by those words, I cannot- Senator FERGUSON-You are not sure. He could easily have meant that in fact because it was inconclusive or it was not very clear there was no point in seeing it? Brig. Silverstone-There is a range of meanings open to him. CHAIR-We will adjourn for afternoon tea. With your approval, Brigadier, we will resume with Rear Admiral Ritchie. When we conclude his evidence, we will come back to you and complete your examination. Proceedings suspended from 3.34 p.m. to 3.45 p.m. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 367 [3.46 p.m.] RITCHIE, Rear Admiral Chris, Commander Australian Theatre, Department of Defence CHAIR-I welcome Rear Admiral Ritchie. The normal procedure is to invite witnesses to make an opening statement if they have one. Is that a process that you would like to follow? Rear Adm. Ritchie-If I may, I will make a short opening statement which will position me in the tapestry. CHAIR-Please proceed. Rear Adm. Ritchie-Firstly, I thank you for your indulgence in allowing me to come. I do not think Brigadier Silverstone thought he had much choice. CHAIR-I do not think I lent him much latitude-but still. Rear Adm. Ritchie-I am the Commander Australian Theatre, and I have responsibility for the planning and the conduct of ADF operations, including the operation which is under discussion here, Operation Relex. I am directly responsible to the CDF and, as such, I talk directly to him and to his principal staff officer for operational issues, who is Air Vice Marshal Titheridge, the Head of Strategic Command. Direct command of operations in the Australian Theatre is most usually exercised through a component commander. In this case, the operation being ongoing, that role is fulfilled by the naval component commander, who is Rear Admiral Smith, the forces involved being primarily but not only from his maritime command. He has been assisted in this by Brigadier Silverstone, who is the joint force commander in Northern Australia. Essentially, Rear Admiral Smith has conducted the operations for me within the framework of a concept, rules of engagement and assigned forces that derive from my authority. He has reported back to me and either I or my headquarters have been the normal means by which the authorities in Canberra, the CDF and the Head of Strategic Command have been informed of progress and have discussed and directed necessary changes to the conduct of the operation. The issues that I would ask you to note are that I am the responsible authority for all ADF operations and I am also the means by which operational issues are discussed with the CDF. I do not in the normal course talk directly to government. That is the CDF's prerogative. I do not accept operational direction from anyone other than the CDF or, on the CDF's authority, his principal staff officer, the Head of Strategic Command. That is the opening statement. CHAIR-Thank you. Is it possible for an attendant to obtain a copy of it from you? Rear Adm. Ritchie-It has been topped and tailed a bit. Yes, it is. CHAIR-It is a brief statement. There is nothing attached to it that we should not have? CERTAIN MARITIME INCIDENT CMI 368 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-No. CHAIR-Thank you, I just needed to make that clear. Senator FAULKNER-Admiral Ritchie, I assume you were listening to the evidence that Brigadier Silverstone was providing to us. I wonder whether the brigadier's contact with Minister Reith on 31 October-and this may not have been drawn to your attention at all-had been drawn to your attention by Maritime Command at all. It may not have been, but I thought we might start there. Rear Adm. Ritchie-My recollection is that Brigadier Silverstone told me personally-it did not come to me through Maritime Command-that he had had that conversation with the minister; fairly well as he told it here before the recess. Senator FAULKNER-Do you think the evidence that he gave to this select committee is a fair reflection of the information that he gave to you in relation to those two issues: first, in relation to his comment to former Minister Reith about questions about children being thrown overboard and, second, in relation to the minister's comment, `Better not see the video then'- both those elements? Rear Adm. Ritchie-Both of those elements are in my recollection of what he told me. Senator FAULKNER-Given that occurred, did you have that conversation with him around 31 October? Rear Adm. Ritchie-I do not have any record of that conversation, but I believe that it was around the 31st. Indeed, in my statement to Powell, I said at the time that I believed it was around the 31st. Senator FAULKNER-Did you take any further action- Rear Adm. Ritchie-I noted what he said. I do not have any recollection that I passed that on to anyone else, no. In fact, I probably regarded it as rather a personal exchange between him and the minister. Senator FAULKNER-What about your own experience, and your organisation's, in terms of any contact, direct or indirect, with the office of the former minister over the period that we are talking about-the first week of October through to 10 November? First, you might indicate to us if there was any such contact and, second, if there was, what its nature was. Rear Adm. Ritchie-It is very rare for the Headquarters Australian Theatre to have any direct contact with the minister and indeed with the minister's staff. I did have contact with Mr Scrafton on, I believe, 10 October. Mr Scrafton rang me in the morning and my recollection is that he was asking about evidence in support of the claim that children were thrown overboard. It may not have been in exactly those words, but I have no clear recollection of exactly what it was. At any rate, it caused me to talk to Admiral Smith. I know that Admiral Smith talked to either Silverstone or Commander Banks, and I was advised about midday of that day that the electro-optical film-the video that we all talk about-showed that there were no children CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 369 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-and he has variously been described as 13 to 15, or 17 to 18 but at the time I recorded him as a 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 is, the side that the camera could not see- that indicated that there might be children in the water. At 12.42, I passed that information back to Mr Scrafton. That is the only contact that I recall with ministers or ministers' staff in this period. Senator FAULKNER-Was Mr Scrafton basically asking if you were aware of any sort of evidentiary support for claims that children had been thrown overboard-is that a fair way of putting it? Rear Adm. Ritchie-My recollection is, yes, he rang me up and said, `Chris, what have we got that supports the claim that children were thrown overboard?' At this time I still believed that it was true. Senator FAULKNER-I think it is fair to say that you do not believe it is true for much longer. Rear Adm. Ritchie-Not for much longer, no. Senator FAULKNER-It might be useful for the record if you could say when it became clear to you that children had not been thrown overboard. Rear Adm. Ritchie-Again, in my recollection, it is clear to me on the 11th that in all probability children have not been thrown overboard, because on the 11th I see the statements taken from the sailors concerned on the Adelaide, and the last vestige of hope, if you like, was the fact that there would be statements taken from sailors. I already knew that there was nothing on the video. I knew that there was nobody coming forward and saying that they had seen it, but I believe that there was a possibility that the statements taken on the 10th would include that. Indeed, as we all know, there is one person, the EOTS operator, who says in his statement that he thought one child was thrown overboard; there are 15 who say that they were not. So, by the 11th, it was clear to me. I think others will tell you that they probably believe that they discussed that with me on the morning of the 11th as well. I think it becomes clear to Brigadier Silverstone-I think he has already said this-on the 10th. I certainly spoke to him first thing on the morning of the 11th. So, in all probability, we talked about those sorts of things. But my definite recollection when I saw the statements is that I thought that this in all probability did not happen. Senator FAULKNER-What about the other issue of clarity when the photographs do not actually represent that incident but an incident that takes place on another day? Rear Adm. Ritchie-I had seen two photographs, which had been emailed to me by Rear Admiral Smith, which were of the rescue on the 8th. I saw those photographs being shown on CERTAIN MARITIME INCIDENT CMI 370 SENATE-Select Thursday, 4 April 2002 the 7.30 Report on the evening of the 10th, and I rang the CDF to inform him that those photographs were not of children being thrown overboard, which is what they were purported to be on that media show. Senator FAULKNER-You received two photographs. Did you do anything with the photographs you received? Did you discuss them with anyone or take any further action? Rear Adm. Ritchie-No, because when I received the photographs they were merely photographs of part of the rescue of the 223 people when the boat sank. Senator FAULKNER-In relation to the period of the 10th and 11th and certainly after Mr Scrafton's phone call, was the uncertainty of the claims an important issue for you-trying to seek some satisfaction, some clarification or some certainty, if you like, on the question? Rear Adm. Ritchie-I think it became an issue on the evening of the 10th and then again on the morning of the 11th, particularly over the fact that I was well aware that photographs were being misrepresented and, coincident with that, I became aware that in all probability the event did not happen. It was not an issue for me until the 10th and it was not an issue for me after the 11th until, I suppose, about 8 November when it again comes into public focus with the Chief of Navy's comments et cetera. Senator FAULKNER-The phone call you received from Mr Scrafton around midday- Rear Adm. Ritchie-Earlier than midday. I rang him back at 1242. He rang me some time after eight o'clock on the morning of the 10th. I went through the process of talking to Smith. Smith talked to the people concerned and came back and gave me that view of the world-it is not on the tape; it might be in some statements-and I passed that back to Scrafton at 1242. Senator FAULKNER-This is the point. You in fact have two contacts with Mr Scrafton on 10 October. The first one was around 8 a.m. Is that right? Rear Adm. Ritchie-Around 0930 or so. Senator FAULKNER-Whatever. It was early morning. I want to be clear on this. The thrust of this is that Mr Scrafton was seeking information to support the claim that children had been thrown overboard. Is that fair? Rear Adm. Ritchie-My memory is that Mr Scrafton was seeking to find out whether there was any evidence to support the claim that children were thrown overboard. Senator FAULKNER-I ask you that because I want to be clear on it. He was not actually seeking to test the claim? Rear Adm. Ritchie-No, I do not think so. And I say it that way because of the nature of the response that I gave him, and the response was that this particular piece of evidence, the tape, does not show it but there may be other pieces of evidence in the form of statements that will show it. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 371 Senator FAULKNER-So he was not asking you if it was true, basically; he was asking you if there was evidence- Rear Adm. Ritchie-If there was any evidence to support it. Senator FAULKNER-and by 1242 he got an answer. Rear Adm. Ritchie-He got an answer, but be careful to remember that the answer that he got still indicated that it was possible that it had happened. Senator FAULKNER-We are clear on the answer. The answer goes to the video. Rear Adm. Ritchie-The answer goes to the video and says it is not on the video. The video does not show it. Senator FAULKNER-Yes. Rear Adm. Ritchie-But the answer then says, `But there may yet be sailors who will make statements that will show that it did happen.' Senator FAULKNER-Appreciating that, were you able to effectively answer him at 1242 saying, `There is no evidence to support the claim'? Rear Adm. Ritchie-No. Senator FAULKNER-You in fact said, `There is none at this point'- Rear Adm. Ritchie-He would have walked away from that conversation believing that there still might be evidence that supports the claim, because I believed that. Senator FAULKNER-I appreciate that, but you did not have any. Rear Adm. Ritchie-I did not have it, no. Senator FAULKNER-There was no evidence at that point, but some may have been forthcoming. Is that the best way of describing it? Rear Adm. Ritchie-That is fair. Senator FAULKNER-After that contact with Mr Scrafton, you are satisfied by the next day that children had not been thrown overboard. That is true, isn't it? Can I say also that, by the next day, you are satisfied that there is no evidence then to support the claim that children had been thrown overboard? Rear Adm. Ritchie-That is true. CERTAIN MARITIME INCIDENT CMI 372 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-Are you satisfied that that is adequately communicated through the chain of command? Rear Adm. Ritchie-Yes, I am, because I spoke in similar words to the CDF about that. He told me he was in communication with the minister on that subject. Senator FAULKNER-This goes to some of the evidence that I think you gave at the Senate estimates committee. You were comfortable, as far as your own role as COMAST was concerned, that this issue was squared away by the subsequent day, 11 October. Is that right? Rear Adm. Ritchie-As part of that long conversation that I had on the morning of 11 October with the CDF, I recorded immediately subsequent to that conversation that the probable actual course of events was that, on the film, one child was held to the side of the boat and one child jumped overboard-and that is all you would see if you looked at the film-and that the video operator said that he saw a child go in the water, and that is borne out by the statement that he has made, and that no children were recovered from the water. From those three points, albeit that one of them is contradictory, I have drawn the conclusion that it probably did not happen. Senator FAULKNER-In the chain of command, you are responsible for briefing CDF on this issue and on related issues. I think there is absolute clarity on that. Rear Adm. Ritchie-I talk to CDF directly, yes, and CDF and I would normally, in this or any other operation, personally discuss the most significant issues. I think CDF actually gets briefed daily by Air Vice Marshal Titheridge's organisation, they being his immediate staff for this sort of thing. Their organisation and my organisation are in constant communication about what is going on in each and every operation. Senator FAULKNER-Were you aware of the special arrangement that I was speaking to Brigadier Silverstone about? Rear Adm. Ritchie-Yes. In fact, I think Titheridge rang me on the Saturday evening and suggested that he had to brief-or had been requested to brief-the minister on the Sunday morning on what was going on with SIEV4 and asked if it would be okay if he spoke directly to Silverstone in order to cut out the middleman, if you like, on that one-and that one only- particular occasion. I agreed with that and asked Admiral Smith to arrange it. Senator FAULKNER-The middleman being effectively you? Rear Adm. Ritchie-Myself and Smith. Senator FAULKNER-Middlemen? Rear Adm. Ritchie-Middlemen, yes. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 373 Senator FAULKNER-Are you confident that in your discussion with CDF on 11 October the fact that there was no evidentiary support for claims that children had been thrown overboard was made clear? Rear Adm. Ritchie-Yes, I am confident. Senator FAULKNER-In saying that Admiral, are you able to tell us whether you are able to provide clarity about the question of the video not depicting any images of children being thrown overboard? Rear Adm. Ritchie-To the CDF? Senator FAULKNER-Yes. Rear Adm. Ritchie-I think I have given evidence before that I do not have a direct recollection of what I actually said to the CDF on that issue, but given what I wrote in my notebook, I am fairly confident that I did, yes. Senator FAULKNER-I assume that you would have told Rear Admiral Smith that you had informed CDF about the lack of evidence over the claims? Rear Adm. Ritchie-Yes, although I do not think it was straightaway. I think Smith probably was not there on that particular morning so it would have occurred some time in our contact thereafter. Admiral Smith has an office that is very close to mine and we see each other a lot. Senator FAULKNER-You have regular discussions or briefings with CDF. I imagine this happens on a daily basis or a couple of times a day-or whatever is necessary as determined by events. Was this issue raised directly between you and CDF on more than one occasion in the October period? Rear Adm. Ritchie-I only have a direct recollection of raising this particular issue, and the accuracy of what was being reported, twice with CDF-once on the evening of the 10th and then again on the 11th. I came away from the conversation on the 11th convinced that the issue was a dead issue. Senator FAULKNER-Yes. Rear Adm. Ritchie-So I would have had no cause to raise it again. Senator FAULKNER-Did the discussion with CDF on the 10th also go to the question of the misrepresentation-those are my words, but I think they are fair-of the photographs? Adm. Ritchie-The discussion on the 10th was entirely about the misrepresentation of the photographs. Senator FAULKNER-So there were no other issues? CERTAIN MARITIME INCIDENT CMI 374 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-No. Senator FAULKNER-I appreciate that. So that conversation did not go to any other doubts about the claims? Rear Adm. Ritchie-The discussion on the 11th would have gone to the rest of it but the 10th did not. The conversation on the 10th was very short. I told him that what was being shown on the television at that time was misrepresenting what was actually there. Senator FAULKNER-Understanding that, I think it is fair to point out that the photographs were promulgated and publicised as evidentiary support of the claims. Is it fair to make that link? Rear Adm. Ritchie-Yes, definitely. Senator FAULKNER-Is it possible to be categorical and say that the conversation of the 10th was totally about the photographs and what incident they applied to, given that we understand that they were actually being promoted as evidentiary support that children had been thrown overboard? That is why they were there in the public arena-allegedly to show that children had been thrown overboard. I am not doubting you. I am just wondering if contextually- Rear Adm. Ritchie-It was a very short conversation. I got home, the television was on and the first thing I saw were those photographs on television purporting to be evidence that children were thrown overboard. I immediately rang him on the telephone and said, `Those photographs that were on the 7:30 Report are not of children being thrown overboard.' Senator FAULKNER-In relation to the photographs specifically, what was your feeling about what they depicted? Did you have any views, or did you express any views, about either the advisability or necessity of correcting the public record about that? Rear Adm. Ritchie-With CDF? Senator FAULKNER-With the CDF or more generally. In other words, you were aware that the photographs were depicting a different event? Rear Adm. Ritchie-Yes. Senator FAULKNER-Did you raise the issue, with the CDF or more broadly, about the need for the public record to be corrected? In part, I ask this because it is something that I am very sensitive about: the fact that this was-as you would be aware, although I accept that it is not a central issue for you-all occurring in the early stages of a federal election campaign. Rear Adm. Ritchie-I do not know how to answer that, other than to say that I told the CDF, in fairly straight terms, that these photographs were not what they were said to be. The CDF indicated that he would talk to the minister about it. I am not then going to go and talk to anybody lesser in the chain. To me, that is about as far as you can go. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 375 Senator FAULKNER-There is no-one lesser in the chain. Rear Adm. Ritchie-To me, that is about as far as you can go. Senator FAULKNER-Given that there is this one question mark remaining in relation to the middle of the day on the 10th and the statements of the crew, did you have any involvement in whether CDF would be apprised of the outcome in relation to that? It may not have fallen into your bailiwick; I am not sure. Rear Adm. Ritchie-No, and I am sure that probably that is part of what I was talking to CDF about. But I gave no consideration to sending those things to CDF or passing them on any further. They had come as far as they needed to go. We had formed the view and said that, in all probability, this did not happen. The advice I got back was that the issue would not be pursued any further. Senator FAULKNER-But, as far as we know, it was not? Rear Adm. Ritchie-It was not really pursued that very much further until we got to November. Senator FAULKNER-That is right. Rear Adm. Ritchie-So nothing happened, that I can recall, between then and 8 November that causes me to say that I should have gone back and done this again. I might be at fault there, but certainly there is nothing in my memory about that. Senator FAULKNER-One of the things we are all aware of is that these photos were not brought forward as evidentiary support again until, as you say, the end of the first week in November. At that point of course we know that CDF-at least for some of that period, if not most of it-was not even in the country, as you were aware. Rear Adm. Ritchie-No. Senator FAULKNER-But, in terms of your own responsibility, did you take any action when the claims resurfaced and the photographs were published again? Rear Adm. Ritchie-The next time, I suppose, that it really came to notice is when the Chief of Navy made a statement saying that the advice that children had been thrown overboard had not been passed to the minister, and then he corrected it. I was aware that that advice had been passed to the minister. I was also aware that subsequently, I believe, advice had been passed saying, `There's nothing to show that it's true.' I think that the Chief of Navy has recorded that he then had some conversations with other people, including me, as to how this thing got into the public agenda. He attributed me as telling him that Titheridge probably passed it through the IDC or whatever. Subsequently, it appeared that that was not the case, because Titheridge did not go to that IDC. But I may well have said something like that, because that is the sort of model that was being followed for this activity. CERTAIN MARITIME INCIDENT CMI 376 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-But you have just said in answer to my question then that you knew that advice had been passed to the minister. How are you able to be so definitive about that? Rear Adm. Ritchie-Because I was aware of the arrangement that was put forward for Titheridge to talk to the minister. After Silverstone phoned Titheridge, Silverstone then phoned Smith and Smith phoned me. He told me that this had been said to have happened and that the thing had been passed on in accordance with the arrangement we had come to the night before. It was fairly clear to me that the minister's office knew about that, because why else would people like Scrafton say, `Is there any truth in this sort of thing?' So it was not a secret; we all believed it. I am quite happy that we collectively-that is, the Defence organisation-did tell the minister and his people that it happened. Senator FAULKNER-It was not a secret for you; that is true. I understand that and I think we all appreciate that. It was a secret as far as I was concerned and as far as members of the general public in this country were concerned right through the period of an election campaign. While it may not be a secret for you- Rear Adm. Ritchie-What I said was not a secret was the fact that we told the government that this was true-and we did. Senator FAULKNER-That was a secret right through that period too, surely? Rear Adm. Ritchie-Not really. I think Minister Ruddock had a press conference on Sunday morning, the 7th. Senator FAULKNER-I am sorry. You are saying the original- Rear Adm. Ritchie-The original telling of the story. Senator FAULKNER-We are speaking at cross-purposes. I thought you were suggesting that it was not a secret that the record had been corrected? Rear Adm. Ritchie-I am not making any comment on the business of the record being corrected, or I have not made any comment on that yet. Senator FAULKNER-Would you care to? Rear Adm. Ritchie-No. Senator FAULKNER-I must admit I thought your last few comments were directed to the events- Rear Adm. Ritchie-No, they were directed to- Senator FAULKNER-That is because I was questioning you about discussions with CDF and the like and I thought you were referring to the events that- CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 377 Rear Adm. Ritchie-I was referring to events between 7 and, say, 10 October. Senator FAULKNER-Okay. I must admit I understood you to be talking about events post the 10th. I understand the nature of what you are saying, and you are right, of course, to make the point that Minister Ruddock had a press conference and it was no longer a secret from that point. I asked Commander Banks about this and I wonder whether I could ask you about it: are you aware of an instruction from the CDF, an unclassified memorandum, titled `Collection and handling of operational material with potential evidentiary use'? The distinguished gallery journalist Laurie Oakes in fact wrote an article about it. Rear Adm. Ritchie-I am aware of it. Senator FAULKNER-So you are aware of the memorandum? Rear Adm. Ritchie-Yes, if it is of relatively recent origin. Is it? Senator FAULKNER-Yes, I think so. I made the point this morning that Mr Oakes knows a lot more about this than I do, but I thought you might be able to shed some light on it. Are you aware of any loss or destruction, whether it be accidental or deliberate, of any document or material relevant to this committee's inquiry, the SIEV4 incident or task force 639's activities? Rear Adm. Ritchie-I am not aware of any deliberate misappropriation or loss. Senator FAULKNER-So, nothing. What about the issue of the correcting of the public record when the issue was raised again later in November: did you give any thought to the need or necessity for that in the circumstances? Again, it was a highly sensitive time in the political cycle, as I am sure you appreciate. Rear Adm. Ritchie-I did not. Having had that discussion with the CDF in October, I considered that that was probably adequate. I am also aware that Air Marshal Houston took the action that he did in November, which really seemed to move things on a pace in any case. I think he took that action on 7 or 8 November; I am not sure exactly which. I personally gave no thought to making any statement to anybody to say that this should be corrected, no. Senator FAULKNER-Fundamentally, you did not think it was your responsibility? Or you felt that at the end of the day you had had a discussion? Rear Adm. Ritchie-Fundamentally, I thought I had fulfilled my responsibility. Senator FAULKNER-Because at the end of the day you passed it up the chain of command to your commanding officer? CHAIR-Can I be clear on this point: what you are referring to as the action taken by the Air Vice Marshal was what came out in estimates-that is, he rang the former Minister for Defence and told him that children were not thrown overboard, and he did so in the presence of Brigadier Bornholt? CERTAIN MARITIME INCIDENT CMI 378 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-Yes. Then he debriefed other people afterwards. CHAIR-Yes. Rear Adm. Ritchie-That is the action that I am referring to. I am not saying that I had intimate knowledge of that at the time either. Senator FAULKNER-But you are saying that you had some knowledge of that? Rear Adm. Ritchie-I had some knowledge that there was movement in Canberra in terms of going back to government on that. Senator FAULKNER-Could you share with us how you gained that knowledge? Rear Adm. Ritchie-Not really, only to say that it would have been in discussion with the principals in Canberra. I did not get it directly from Air Marshal Houston. I did not get it directly from Brigadier Bornholt. Senator FAULKNER-So this was a bit of a badly kept secret in the upper echelons of Defence, was it? Rear Adm. Ritchie-No, I am not saying that I even knew that he went and said that to the minister. I knew that there was activity in Canberra, which was to do with the fact that the Chief of Navy had made a statement, to do with the fact that the photographs had reappeared in the paper, to do with the fact that the whole issue had surfaced again. Senator FAULKNER-I hear what you are saying; I am just trying to understand how you knew it, that is all. This is the point that I was making before about something and it turned out to be a misunderstanding on my part: you knew that but a lot of other people did not know it including, I suspect, a lot of people sitting around this table and people in the broader community. I would have liked to have known that at the time, I can tell you. You probably appreciate that. Rear Adm. Ritchie-I cannot help you any more, other than to say that I was aware that in Canberra people were looking at the issue again. Senator FAULKNER-I think what you are really saying to us is that this was more the status of a rumour that came to your attention? Rear Adm. Ritchie-No, I am not saying that it was a rumour. It is my business to talk to the people in Canberra on behalf of the operational end of the organisation. I am generally aware of the sorts of things that are happening in Canberra. If I have said that I knew directly what Houston was doing-and I do not think I have-I retract that, because I did not. But I was certainly aware that it was an issue again. Senator FAULKNER-In a sense, everyone is aware that it is an issue, Admiral, because it is in the public arena again. I think it is fair to say that you are saying more than that, aren't CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 379 you? You are saying that from some sources in the Defence organisation you become aware that there is an attempt to correct the record or redress the situation as it is evolving; I am not being unreasonable in saying that? Rear Adm. Ritchie-No, you are not. I can say to you that the statement that I eventually gave to Powell, I drafted on the night of 8 November at home because I thought that this issue was going to come on very quickly. I did not do anything with it then. In the cold light of day I said, `We'll put that in the drawer and wait until it's needed.' Senator FAULKNER-If you ever retire from the Navy, Admiral, you might get a job as a soothsayer or something like that. That is very impressive. Did you provide that draft to Major General Powell? Rear Adm. Ritchie-No, I did not; I kept it. Senator FAULKNER-But you were concerned enough to sit down- Rear Adm. Ritchie-I was concerned enough to sit down and write out my part in this activity. Senator FAULKNER-and pen some notes about an issue that you thought you would hear a lot more about? Rear Adm. Ritchie-Yes. Senator FAULKNER-Are you able to say to us whether in part that reaction-which I am not critical of at all; it is obviously perspicacious and sensible-comes about as a result of discussions with other senior colleagues in Defence? Rear Adm. Ritchie-It comes about, I suppose, initially because I became aware of what the Chief of Navy said in Fremantle when he made his statement to the press about the information not being passed to government-an issue we went through 10 or so minutes ago. Senator FAULKNER-Yes, I know, but by the time that you sat down to put pen to paper that evening, the Chief of Navy had also put out a clarifying statement, hadn't he? Rear Adm. Ritchie-He put out a clarifying statement, yes. Senator FAULKNER-Or a so-called clarifying statement-I do not like that terminology, but that is his terminology and I accept it as his terminology. Rear Adm. Ritchie-I think the point of the original question was to find whether I, at any other time, saw fit to go forward again and correct the record, and my answer to that is no. Senator FAULKNER-I promised to discipline myself to a short number of questions to kick off and come back to you at a later stage; I do not know whether my colleague or others want to ask questions. CERTAIN MARITIME INCIDENT CMI 380 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-I have only one question, Admiral-and I apologise if you covered it earlier, when I was out of the room. It relates to a comment by Mr Hendy in the Bryant report material. He indicates: ... the Minister's office might have undermined the protocols for checking and verifying information- that is, about the release of the photographs. He also indicates that the minister: ... had spoken to the CDF and senior Admirals before making the decision to release photos ... Were you consulted or are you aware of other senior admirals, apart from Admiral Barrie, who were consulted? Rear Adm. Ritchie-No. He did not speak to me. Senator MASON-First of all, thanks for your quick run-down on the chain of command in this context. I am not sure I quite have the hang of it yet, but I am working on it. I draw your attention to the issue that Senator Faulkner raised with you before and also I think with Brigadier Silverstone-the so-called special arrangements in relation to SIEV4. Page 11 of the Powell report states: According to Rear Admiral Ritchie's interview with me, the provision of advice to Air Vice Marshal Titheridge by Brigadier Silverstone was a special arrangement that had been agreed on the previous evening- that is, 6 October- to allow Air Vice Marshal Titheridge to brief Mr Reith about developments at an early stage. The special arrangement to provide advice to Air Vice Marshal Titheridge was an acknowledgment that there were several new elements that had not been seen with previous vessels, including the fact that the passengers were wearing life jackets. What were those several new elements that had not been seen before? Rear Adm. Ritchie-I would take issue with that part of Powell's report to the extent that it indirectly might have been an acknowledgment that there were different things about this-but it was primarily, in my belief, because the minister had intended to go on some sort of media event on the Sunday morning and, knowing that the boat was there, he wanted to be able to talk about it. Senator MASON-So the special arrangement, to put it bluntly, primarily was there for the convenience of Mr Reith? Rear Adm. Ritchie-That was my understanding of it, yes. Senator MASON-I think that is the evidence that Senator Faulkner used from Brigadier Silverstone as well. I just wanted to clear that up. So this special arrangement did not apply to any other SIEV incidents? Rear Adm. Ritchie-No. I have no memory that we have done that in any other case. That is not to say that we would not. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 381 Senator MASON-So are you aware of other SIEV incidents? Rear Adm. Ritchie-I am aware of other SIEV incidents. Senator MASON-I just wanted that on the record. Rear Adm. Ritchie-But we have not done that in any other incident. Senator MASON-I have in front of me annex C to the report by Major General Powell. I think you would have seen it. Rear Adm. Ritchie-Yes. Senator MASON-I am referring, just for the record, to annex C to the report by Major General Powell. Are you aware of SIEV incidents that occurred after SIEV4-obviously SIEV6 on 22 October, SIEV7 on 24 and 29 October, SIEV9 on 31 October and going into November, SIEV10 on 8 November and SIEV12 on 16 December? Rear Adm. Ritchie-I am aware of all those incidents. Senator MASON-This is curious: was the interdepartmental committee on people- smuggling made aware of those other SIEV incidents? Rear Adm. Ritchie-When you say `incidents'-and I suppose that you are now talking about the information that Titheridge provided on threats and all those sorts of things- Senator MASON-In the Titheridge minute, yes. Rear Adm. Ritchie-I have no direct awareness of what the IDC knew about each particular incident, but I would be greatly surprised if the IDC was not aware that in each incident something different happened. Senator MASON-I will just get this straight: you were informed about these other SIEV incidents by Rear Admiral Smith? Rear Adm. Ritchie-I think you might be leading me down a path to say that I was informed about every particular issue- Senator MASON-I just want to know- Rear Adm. Ritchie-and I would not guarantee that. Senator MASON-Do you know if the minister was informed about these other SIEV incidents? Rear Adm. Ritchie-No, I do not. CERTAIN MARITIME INCIDENT CMI 382 SENATE-Select Thursday, 4 April 2002 Senator MASON-Did you pass information about these other incidents up the line to CDF and to- Rear Adm. Ritchie-In particular, and I think in relation to the ones where threats were made, I could guarantee you that SIEV7-the one in which the child was actually dropped- was passed in the AST operational summary-which is sent at the end of the day-on this business. I exclude for the moment SIEV10, because SIEV10 in itself was a totally different incident. SIEV10 is the one that sunk and everybody ended up in the ocean. That was certainly passed up the line in great detail. Senator MASON-Do you know if it went to the minister? Rear Adm. Ritchie-I think I could say with some confidence, yes. Senator MASON-You certainly passed it up to CDF and to- Rear Adm. Ritchie-As a result of SIEV4-in fact, by the time we got to SIEV10 it was really the next significant thing that happened; SIEVs 5, 6, 7, 8 and 9 are not significant in the great scheme of things as far as we were concerned, but 10 was. SIEV10 was certainly passed very deliberately in written form up the chain of command. Senator MASON-Let me make this clear then: you passed those incidents up the chain to the CDF and to Air Vice Marshal Titheridge in each case? Rear Adm. Ritchie-I think that this happened in the course of the night. I think SIEV10 went through Titheridge's organisation, yes. Senator MASON-What is curious is that there is all this evidence that Senator Brandis educed the other day in relation to the Titheridge minute that most of the public was totally unaware of until the revelations of the Titheridge minute. We have heard time after time of a certain pattern of conduct that has evolved and yet there was no public discussion and no discussion from the minister or the CDF about these matters. Rear Adm. Ritchie-It goes to what Senator Faulkner was talking about. I know about it- perhaps you don't-so I am talking about it at a different level. We have never tried to conceal the fact-in fact, we have tried to advertise it-that this is very difficult work; that these people do unusual things. We have continuously tried to get that message through Air Vice Marshal Titheridge's organisation into the IDC. But I would not say that we have gone to the point of saying `and that person threatened to throw a child over the side'. That really has become part of the background noise. Senator MASON-I understand that. But I suppose you can see, given what has happened with this committee over the last week or so, that it is striking that all the evidence that Senator Brandis adduced the other day came out, there was comment about it in all the newspapers, and yet none of us had heard about it until then. Yet we pick on one particular incident-SIEV4. Would you agree that compared to some of the other instances SIEV4 is not quite as dramatic? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 383 Rear Adm. Ritchie-If a child had been thrown over the side in SIEV4, I think it is more dramatic. I will put SIEV10 aside again, because SIEV10 is a very dramatic event. But other than SIEV10, SIEV4 is more dramatic than the others. In SIEV7, I personally think that the kid was dropped, it was not thrown, and no-one else was thrown-in the business of threats to children. Senator MASON-Sure, but the child was dropped overboard-you are right-on 24 October. On 29 October with SIEV7 there were attempts to set fire to the vessel. I do not want to go through it all now-we have been through it all-but you understand my point, don't you? Rear Adm. Ritchie-Setting fire to the vessels, breaking them up, threatening violence-all those sorts of things. Senator MASON-Perhaps when we speak to Air Vice Marshal Titheridge I might explore this issue a bit further. I just want to find out where the information went and who made the decision not to take it any further. Rear Adm. Ritchie-Yes. Senator MASON-Thank you. Rear Adm. Ritchie-It would be my certain belief that all the information of that type was known. CHAIR-Are you trying to make a case for us, Senator Mason, to call Mr Reith in order to ask him that very question? Senator MASON-I think we are getting some members of the IDC; are we not, Chair? I would like to find out even from that angle. CHAIR-We no doubt are. Senator FERGUSON-You have said that you did not think that SIEV7 was as drastic as SIEV4 because you thought the child was actually dropped overboard rather than thrown overboard. Surely, Admiral Ritchie, there has been a pattern of behaviour established with the threats to throw children overboard and, if you continually threaten to throw children overboard and you are hanging them over the side, eventually one of them is going to drop. So I would have that it was a pattern of behaviour that has been established throughout all of those incidents and- Senator Jacinta Collins interjecting- Senator FERGUSON-Senator Collins, I know you are dying to have a say, but have it when you are called. Senator JACINTA COLLINS-I am just making sure you say the truth. CERTAIN MARITIME INCIDENT CMI 384 SENATE-Select Thursday, 4 April 2002 Senator FERGUSON-Can I suggest to you that with this pattern of behaviour that has followed, it would seem to me that, when in relation to SIEV7 a child actually is dropped overboard- Senator JACINTA COLLINS-An alleged pattern of behaviour. Senator FERGUSON-You are saying `allegedly' dropped overboard? Senator JACINTA COLLINS-I am saying it is an alleged pattern of behaviour. Senator BRANDIS-It is alleged by Admiral Shackleton. Senator JACINTA COLLINS-Yes. Other things were alleged by Admiral Shackleton, as I recall, on a date in November. Senator FERGUSON-If Senator Collins can restrain herself for just a minute, Admiral Ritchie, I will get back to the question. The question is that the pattern of behaviour has been established, and Admiral Shackleton alluded to it when we were questioning him; don't you think SIEV7 becomes just as important as SIEV4 if that is the case? If so, and this happened on 24 October, we have all the suggestions made that this was brought up in the political context in an election environment, if the minister was informed of the incident on SIEV7, don't you think that the Australian public has a right to know that as well? Do you know whether the minister was advised? Rear Adm. Ritchie-No, I do not. Senator FERGUSON-There were further incidents similar to SIEV4 which received all the publicity. Commander Banks, who is now probably a household name throughout Australia, has been here for a considerable number of hours. We have commanders of about half a dozen other vessels who have conducted themselves under just as much difficulty and, I would say, in the case of SIEV10, probably with more stress than SIEV4, who are unknown to the Australian public because the incidents have never been made public. Either they have deliberately been kept from the minister's view or the information has not been disseminated to the minister in order to keep the Australian public, the government and the opposition in the dark, or else the information has not been given to the minister. Rear Adm. Ritchie-The information on SIEV7 was known in Canberra-it was known in Strategic Command. Senator FERGUSON-So it was known to the minister? Rear Adm. Ritchie-It was known in Strategic Command. I do not know whether it was known to the minister. Senator JACINTA COLLINS-You will have to ask Admiral Barry. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 385 Senator MASON-We remain curious and will follow it up later with Air Vice Marshal Titheridge. Senator Ferguson did point to an important issue and that is Admiral Shackleton's evidence relating to a course of conduct. I would just like to draw your attention to the Hansard evidence from Monday, 25 March before this committee when Senator Brandis put a question to Vice Admiral Shackleton. Let me read that out and ask for your response to it. Senator Brandis asked: In fact, it is the case, isn't it, Vice Admiral Shackleton, that when the Navy took over the primary responsibility for policing the Australian maritime borders from illegal entry vessels the Navy discovered quite soon that the use of children for the purpose of moral blackmail by asylum seekers-either by threatening to throw them into the water or by, as in the case of the event on 24 October, throwing them into the water or by, as in the case of SIEV10, deliberately sinking the vessel and carrying children into the water from the sunk vessel or by, as in the case of SIEV9, otherwise causing physical harm to children-was a practice that was routinely engaged in as a tactic? The Navy discovered that, didn't it? Vice Admiral Shackleton replied, `That is what we found.' Do you agree with that? Rear Adm. Ritchie-As early as SIEV3, threats to throw children overboard happened, and that was somewhere in the middle of September; so, yes, I agree. Senator MASON-You agree. Thanks. And in the Defence estimates of 20 February the CDF, Admiral Barry, gave evidence, and let me refer to page 72 of the Hansard record of that day. In response to some questions from Senator Faulkner-this is the very last line of the page-Admiral Barry says. We had not seen it before- that is, this kind of behaviour- although I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. What did naval intelligence tell you about the briefing that was being given to the asylum seekers at their points of departure by people smugglers? Rear Adm. Ritchie-Nothing. Senator MASON-Sorry, sir? Rear Adm. Ritchie-Nothing. Senator MASON-Nothing. Are you aware of any naval intelligence about that? Rear Adm. Ritchie-No. Senator MASON-I ask because Admiral Shackleton said that you and Rear Admiral Smith would be the gentlemen to ask, so I am just following that up. Rear Adm. Ritchie-In the case of that-and it has been raised a number of times-what actually has happened is that each time we have seen a boat we have seen a different pattern of CERTAIN MARITIME INCIDENT CMI 386 SENATE-Select Thursday, 4 April 2002 behaviour and we have drawn the conclusion that that pattern of behaviour is in reaction to something that we did last time and people are trying to move around us and get somewhere else. We have certainly drawn those conclusions ourselves. We have no direct evidence of what these people are told before they depart. Senator MASON-So you think there is an evolving, more sophisticated process from the people smugglers? Rear Adm. Ritchie-Yes. Senator BRANDIS-One common feature of which, Admiral, in each case is the use of children or the use of threats to children? Rear Adm. Ritchie-In about half the cases, yes. Senator BRANDIS-That is a common feature in, I think, seven of the 10 instances. Do you agree with that? Rear Adm. Ritchie-Yes. CHAIR-In about half the cases. There were-what?-12 SIEVs all up, weren't there? Rear Adm. Ritchie-There were 12 all up, and I think that you could reasonably say that there were probably-if you exclude 10 and I do, but I accept that others might not-six SIEVs. In some there were multiple incidents, and that is how you get so many. SIEV9, I think, had four or five incidents, because we had that vessel for a considerable period of time. CHAIR-Going to this question of pattern of behaviour, my recollection-and I might be wrong so please correct me if I am-is that there were only about three at maximum references in what has become known as the Titheridge report where children were mentioned as being threatened. Rear Adm. Ritchie-I think there are more than that. Senator BRANDIS-With all due respect, can I put this to you, Admiral Ritchie. The Titheridge minute, if you analyse it, indicates that between SIEV3 and SIEV12-that is, between 12 September and 16 December-seven out of those 10 SIEVs involved threats to children. They were SIEV3, intercepted by the Warramunga on 12 September; SIEV4, the Adelaide on 7 October; SIEV6, the Bunbury on 22 October; SIEV7, in two instances, the Bendigo on 24 October and the Arunta on 29 October; SIEV9, in four instances, in each case involving the Arunta, between 31 October and 2 November; SIEV10, involving the Wollongong on 8 November; and SIEV12, involving the Leeuwin, on 16 December. Do you accept that, Admiral Ritchie? Rear Adm. Ritchie-Yes, I accept that. Sorry, did you say the Dubbo? Senator BRANDIS-I did not mention the Dubbo because- CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 387 Rear Adm. Ritchie-It is out of context- Senator BRANDIS-I do not want to overstate the case, so I have deliberately left the Dubbo out because that relates to an event as early as November 1999, before the Navy became involved in the border policing responsibilities. Rear Adm. Ritchie-I have done the same thing: I think 3, 4, 6, 7, 9 and 12 and, as I say, I count 10 as something different, a totally different event. CHAIR-We will come to that report and those allegations, for which we have not yet examined the evidentiary base, but can I just be careful about what we are saying- Senator MASON-Sorry, Chair, I had not finished. Senator BRANDIS-I am sorry. I thought you had. Senator MASON-No. I have just a few more. Admiral, can I take you to your statement to General Powell, in particular to the handwritten notes attached to your statement of 7 October last year. Do you have that? Rear Adm. Ritchie-Yes, I do. Senator MASON-It really relates to the issue we are discussing about course of conduct. It is just a quick point, but I want to put it on the record. It is to the second handwritten page that is annexed to your typed statement, 7 October, about halfway down the page: 0800 ... Threats as usual. Do you see that? Rear Adm. Ritchie-Yes. Senator MASON-What is that referring to? Rear Adm. Ritchie-It is referring to SIEV4. Senator MASON-`Threats as usual.' What threats were those? Rear Adm. Ritchie-Somebody has rung me up and said, `Well, here is this boat'-and there is no particular time against that, so I am not sure when I wrote that, but it is something I wrote down as somebody was telling it to me- Senator MASON-`As usual' means what? Rear Adm. Ritchie-I am meaning that there is a pattern. I do not disagree with the fact that what you are saying is a pattern that has been established. CERTAIN MARITIME INCIDENT CMI 388 SENATE-Select Thursday, 4 April 2002 Senator MASON-I just wanted to reiterate the point that Senator Brandis has raised. On the next page, 8 October, about a third of the way down it says: SIEV is taking on water-destroyed own pump- Rear Adm. Ritchie-Yes. Senator MASON-It continues `one pump'-and what does that word say? `One pump'- something-`attempting to get another'? Rear Adm. Ritchie-It says `one pump passed-attempting to get another', meaning that the ship had passed a pump across. It was attempting to pass another pump over to the vessel. Senator MASON-And that was that the illegal arrivals had destroyed their own pump? Rear Adm. Ritchie-Yes. Senator MASON-The note you had taken- CHAIR-Hang on. We are not clear about that. We had evidence from Commander Banks that these were crude vessels and the crew consisted of people smugglers and the passengers consisted of refugees. And to the direct question, `Could he assure us that the refugees damaged the vessel?' he said no, he could not. He did not know whether it was the refugees or the people smugglers. In this case, do we know whether it was the refugees or the people smugglers? Rear Adm. Ritchie-We do not, and we do not say that. We say that the SIEV is `taking on water-destroyed own pumps'. That is a record of something that I was told and that I passed on to the CDF. Senator MASON-I say it again: the illegal arrivals destroyed their own pump. CHAIR-Well, no. Rear Adm. Ritchie-No, I just said- CHAIR-They are- Rear Adm. Ritchie-It does not say that. Senator BRANDIS-On a point of order, Mr Chair: let Senator Mason's question be answered before you interrupt. Rear Adm. Ritchie-What it says is- CHAIR-Sorry, Admiral, a point of order has been taken and it has been taken on me- which is, of course, the right of Senator Brandis. The point of order, I think, does not stand, but I am quite happy to withdraw and follow it up, because Senator Mason was putting words in the CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 389 quite happy to withdraw and follow it up, because Senator Mason was putting words in the witness's mouth. Senator BRANDIS-He is entitled to do that. He is entitled to put a proposition to a witness and see if the witness assents to it. CHAIR-Yes, but there has been a tendency in this hearing to put propositions to witnesses but to forewarn them that it is a proposition that is being put. It is not words being put in their mouths. Senator BRANDIS-I think you are insulting Rear Admiral Ritchie's obvious intelligence. CHAIR-I am not insulting anyone's obvious intelligence, and we shall now move on. Senator MASON-Could we just clear that up then, Rear Admiral. When I am referring to `illegal arrivals', it is any particular person on the boat, whether crew or people that paid to be part of the- Rear Adm. Ritchie-Yes, and that is all that that says: the people on the boat destroyed it- we do not know which people. Senator MASON-Fine. That is all I wanted to clarify. Thank you. CHAIR-One of the things that puzzles me in this whole episode is: what efforts were made to identify the people smugglers, who were in our terms the criminals, and the refugees, who were in our terms people seeking refuge-by means that we did not approve of, but who may or may not be granted refuge, if not in Australia then in some other place, because they are genuine refugees? What effort was made to identify those two classes of people on these boats? Rear Adm. Ritchie-Part of the standing direction for this operation is to try to identify the crew, for obvious reasons and the sorts of reasons that you have given. My understanding is that in this case they never really did identify that crew. They identified four people who they thought were of different ethnic origin to the rest of them and therefore they may well have surmised that they were the crew, but they did not actually identify the crew positively whilst the vessel was in the authority of the Adelaide. Commander Banks may wish to correct that but that is my understanding of what happened. Talking about patterns of things, it is important for you to understand-and I do not think that this has come out-that the pattern that was well established in those boats is that the crew were not in control of the boat. There were always dominant male SUNCs, as we call them, who tended to sort of run the operation. In many of the instances, you would find that a crew who were readily identifiable would say that they were afraid for their lives if they did not push on towards the Australian coast. So there is an issue of patterns to do with crew. This one is a little bit out of the ordinary because the crew were not identified. CHAIR-This is SIEV4? CERTAIN MARITIME INCIDENT CMI 390 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-Yes, SIEV4. CHAIR-My recollection of Commander Banks's evidence is that there were maybe three or four people who appeared to be of Javanese origin and who behaved as separate from the rest of the refugees. Rear Adm. Ritchie-Quite often it is easy to identify the master, and he will say that he is the master. He will say that he is no longer in control; that these other people are in control. If you wish to return the vessel, it is important for the safety of the vessel to identify the crew and someone who is competent to take charge of the vessel when you release it. CHAIR-Are you able to point us in the direction of any evidence in which any seaman or officer has given a statement to that effect, Rear Admiral? Rear Adm. Ritchie-A statement to the effect that- CHAIR-That the crew were not in charge. Rear Adm. Ritchie-I could, yes. Not off the top of my head, but I could. CHAIR-Please take that on notice. Rear Adm. Ritchie-I could provide that to you. Senator MASON-Chair, I am still going, thank you. CHAIR-Sorry, I thought you had completed. Senator MASON-No, Chair. My problem is my politeness. When you jump in, Sir- Rear Adm. Ritchie-In fact, you might ask Rear Admiral Smith that, because he will be listening and he will have the chance to look it up. CHAIR-Sure. Senator Mason, my apologies. Please proceed. Senator MASON-Thanks, Chair. Rear Admiral, I would like to refer to your typed answers to the scoping questions in the routine inquiry into Relex by General Powell, particularly questions 19 and 20. It is the last page of your typed submission and it relates to the future or the procedures for reform. You say some interesting things, I think; they may indeed help public policy. You flag some ways that, perhaps, this process could be improved. About four lines down, you say: ... the information released in the heat of the moment was thought to be genuine and remained so for some three days. Rear Adm. Ritchie-Yes. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 391 Senator MASON-You have given evidence again today that that is the case. You go on, a couple of sentences later, to say: Any failing on Defence's part is not in how the information was managed or passed in the first instance rather, in the process for refuting the information when it was found to be false. That is interesting, because no one else puts it like that-I do not mean to be critical here, so please do not take this the wrong way-but are you there referring to the fact that, in retrospect, you wish you had, when you spoke to, in particular, the CDF put it in writing or followed it up? Is that what you are alluding to? Rear Adm. Ritchie-I regret that I did not put it in writing. Senator MASON-Is that what you are alluding to there? Rear Adm. Ritchie-Yes. My point here is that there is no issue about whether or not we said it; we did. The issue is afterwards. Senator MASON-I understand that. Rear Adm. Ritchie-I think that 19 or 20 asked you to say, `How do you think the system could be improved?' I think that was the scope of the question. Senator MASON-I just thought what you said was different. Senator Bartlett will be interested in that because he always talks about improving governance and so forth, so I thought perhaps it was interesting. One last point, and it follows on from the examination by Senator Faulkner, and it is about the video. Did you see the video? Rear Adm. Ritchie-Not until November. Senator MASON-I think there is a lot of evidence that the video was inconclusive and was inconclusive because of its poor quality. Is that fundamentally the reason? Rear Adm. Ritchie-That is certainly my view of the video, yes. Senator MASON-Thank you very much. Senator FAULKNER-Could I just ask something that arises out of General Powell's report. If I could take you to page 10 of 13 in the chronology in General Powell's report. This is something that happens on Thursday, 11 October at 10 a.m. In fact, I have just asked Brigadier Silverstone about it. It is this question about the advice you received that Mr Hampton wants to speak directly with the CO of Adelaide, Commander Banks. Can you provide any background to that? This issue was raised with you by Brigadier Silverstone. Is that correct? Rear Adm. Ritchie-Yes. Senator FAULKNER-Was that done by telephone? CERTAIN MARITIME INCIDENT CMI 392 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-Yes. Senator FAULKNER-What was your response? Rear Adm. Ritchie-My response was that Hampton was not to be allowed to talk to the CO of Adelaide and that statements were to be taken and forwarded. And, in fact, as I subsequently found out, those statements were already in the process of being taken-or had been taken, I think. Senator FAULKNER-Was there any information provided to you about what Mr Hampton wanted-the reasons for Mr Hampton's desire to contact Commander Banks? Rear Adm. Ritchie-From memory-and you would be better to ask this of Brigadier Silverstone, because he has got the message-I think the way in which this happened is that it came through the public affairs organisation. I think it went a tortuous route down from Canberra through to Sydney back into Brigadier Silverstone's organisation. He might normally have rung Admiral Smith, but I think Admiral Smith was not about on that morning, so he rang me and he said that Ross Hampton wished to talk to the CO of Adelaide about the `children overboard' incident. I really could not, with any honesty, say anything much more than that about what angle Hampton wished to take. My immediate reaction was that we do not want ministers' media advisers talking to the COs of ships who are on operations. Senator FAULKNER-Would you describe this as bypassing the chain of command? Rear Adm. Ritchie-Had it happened, yes. Senator FAULKNER-Had it happened, the approach would bypass the- Rear Adm. Ritchie-Silverstone did the right thing by saying how it should be done. Senator FAULKNER-And the brigadier has made clear that that was his view too-that it was unacceptable on that basis. I am wondering whether you could confirm that- Rear Adm. Ritchie-I agree with that. Senator FAULKNER-That was your view. Is that the only incident of which you are aware of any attempts by any ministerial staff to bypass the chain of command? Rear Adm. Ritchie-It is the only one that I am aware of in this instance. I think we raised in the SEC the incident of the Manoora much earlier in this whole business, which was to do with a letter of congratulations to the CO. Other than that-and there was nothing unusual or bad about that-this is the only one that I am aware of. Senator FAULKNER-Given the matters raised with you by the brigadier and that you outlined to the brigadier a course of action, was there any other action you took in relation to that? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 393 Rear Adm. Ritchie-It was that event that precipitated the next conversation I had with the CDF. I immediately rang him and said that this proposal had been made that Ross Hampton would talk directly to the CO of the ship and that I had directed Silverstone that that was not to happen. The CDF agreed with me that that was an appropriate course of action. Senator FAULKNER-The thing is that, if you keep working down the chronology and you look at Mr Clarke's witness statement, for example, this may be the only occasion it is drawn to your attention but it is not that uncommon. You have got 10 o'clock in this chronology when you are advised about Mr Hampton's desire to speak to the Commanding Officer of Adelaide. After 10 o'clock, as a result of that, you advise the CDF of a course of action and then at 10.55 he is at it again, Mr Hampton is calling John Clarke-and so it goes on. Hence my question to you about- Rear Adm. Ritchie-I was unaware of those other events outside the two at 10 and after 10, as it says there. Senator FAULKNER-Thank you. In the broad, Admiral, in your role do you think that there are some lessons for Navy or, more broadly, Defence to draw from the SIEV 4 incident? This was of sufficient concern for you on 8 November to decide, without being requested or prompted by anyone else, to put pen to paper about some of the issues that surround that, and that is to be applauded, but I wondered whether you had drawn any conclusions about the extent to which you felt the ADF had been politicised through this and whether or not you draw any conclusions about future relations between the ADF and government? Rear Adm. Ritchie-I am not sure that that is a question that I would happily answer. From a strictly ADF point of view, I think we can draw the conclusion that we must be meticulously correct in our dealings with government and that we must be meticulously correct in putting into an understandable form those things which we wish to tell government. That comes to the business that Senator Mason has asked me about: do I have any regrets effectively? And that is one, yes-that I did not put that in writing on 11 October. But that is all that I would care to offer you on that particular question. Senator FAULKNER-Who would you put it in writing to? Rear Adm. Ritchie-To the CDF. Senator FAULKNER-But the CDF does tell you, doesn't he, after the telephone call that you make to CDF on 10 October when you advise the CDF of the fact that the photographs are of the sinking of the SIEV4, as opposed to children being thrown overboard? You were advised subsequently that the minister had indicated that he had dropped the issue. My recollection is that they are the words you use- Rear Adm. Ritchie-They are in the Powell statement. Senator FAULKNER-in your witness statement to General Powell. Was the CDF more expansive than that? CERTAIN MARITIME INCIDENT CMI 394 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-That is about the gist of what was said and I could not, again, honestly expand on that and put words in his mouth. You would need to ask the CDF that. I am not in a position to say that people down the chain of command, such as I am, should have direct contact with government if I think that something that has been done is wrong. That is not the way the organisation works, and it could not work in that way. There is a recognised chain of command in the ADF. I followed it, the people below followed it and, indeed, the CDF follows it. Senator FAULKNER-Did you have any understanding of what `dropping the incident' might have meant? Rear Adm. Ritchie-It means that it was not going to be referred to again, and certainly from our point of view that was it. Senator FAULKNER-Which, of course, did not occur. Dropping the incident is one thing-and I suppose this is one of the issues that you grapple with. Dropping the incident might sound fair enough to some people. I do not think dropping the incident is fair enough; I think clarifying it and correcting it is the right course of action. You and I may or may not agree on that-I do not know. If we do not agree, we are entitled to different points of view. But do you see the distinction? Rear Adm. Ritchie-I see the distinction you make. But I would put it to you that if I am told that by the CDF, and I think that probably subsequently that is what I told Admiral Smith and Brigadier Silverstone, then as far as they are concerned that is the end of the incident, it is an issue that now lives in Canberra, it does not live at the operational level, get on with whatever else it is we have to do. Senator FAULKNER-What you mean when you say `Canberra'? Rear Adm. Ritchie-I mean it is an issue between the CDF and the government. And you have heard CDF's evidence on what he believed happened. Senator FAULKNER-Yes, but you use the terminology `in Canberra'. I think it is worth- Rear Adm. Ritchie-I am talking about in Russell and in the relationship between him and the government. Senator FAULKNER-The interface between- Rear Adm. Ritchie-The interface between Defence and the government. Senator FAULKNER-CDF, in this case, and the minister? Rear Adm. Ritchie-Yes. Senator FAULKNER-Which obviously is very close to being the most crucial Defence relationship. But it was not enough. I think you make a distinction that you have an operational role-is that the point you make? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 395 Rear Adm. Ritchie-I make a very clear distinction that it is not my business to talk to the government; and, indeed, CDF, if you ask him the same question, will support that. It is my business to represent the operational level to him and to conduct the operations on his behalf. And it is his business-and his business alone-to talk to government on operational issues. I think that point has been made on a number of occasions, not only by him but by the secretary and others. Senator FAULKNER-Okay. So is there an operational impact or effect of this whole issue? In other words, with what I would describe as the misrepresentation of the `children overboard' incident, are you able to say it has an operational effect, maybe in the area of morale in the ADF or Navy? Is that something that it is reasonable for me to ask you? I could obviously ask Maritime Commander, but I think it is reasonable to ask you that. Rear Adm. Ritchie-It has no direct operational impact in terms of the ongoing conduct of Relex or anything like that. Probably Commander Banks has attested to the fact that there was some disappointment amongst his people at what they saw subsequently. And that, perhaps, does have some sort of morale effect. Senator FAULKNER-Are we talking about right through the ADF hierarchy-in other words, all ranks? Rear Adm. Ritchie-Does that morale effect go across all ranks? Senator FAULKNER-Yes. Rear Adm. Ritchie-I think it would be pretty much confined to the people who were on the spot, the ship's company of the Adelaide. Senator FAULKNER-In a way I am surprised to hear that, because we know a little from Brigadier Silverstone's evidence today about the meeting of the senior officers of Defence and the fact that this was an issue that was pretty prominent there. You would support that, would you not? Rear Adm. Ritchie-Yes. Subsequently, I suppose you are right, but at the time that we are talking about in terms of operational effect, back in October-November of 2001, I do not think this was an issue for the rank and file of the ADF. It is only an issue since it has become a public issue. Senator FAULKNER-But what has become public is the government's role and, to some extent, the government's interface with the ADF. Would you agree with this statement? Yes, somehow or other-and I have a view about this, but without putting any spin on this-some misreporting took place and, through the chain of command, some inaccuracies and misrepresentations were carried through but that Defence did act quickly, I think, to correct that when those inadequacies were found out. Is that a fair comment to make or not? Rear Adm. Ritchie-That is a fair comment. CERTAIN MARITIME INCIDENT CMI 396 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-Do you feel that is the case? Do you think that at the end of the day a mistake was made, yet efforts were put in place within a reasonable time frame to correct it? Rear Adm. Ritchie-I am certain that is the case. Senator FAULKNER-But it did not work. Rear Adm. Ritchie-It did not work. Senator FAULKNER-And why does it not work? Does it not work because of Defence or does it not work- Rear Adm. Ritchie-I am not in a position to offer comment on why it does not work. I can tell you what my part was in trying to correct the record, but I do not really wish to comment on what happens beyond that. Senator FAULKNER-No, but for someone who takes an initiative- Rear Adm. Ritchie-I know you would like me to comment on it, but I am not going to. Senator FAULKNER-But I am asking this sort of question of someone who takes an initiative on 8 November-at a comparatively early part in the time continuum that we are talking about-by deciding to go home and put pen to paper about concerns or issues to make sure that the records are, from your own perspective and if and when asked, a pretty accurate reflection of what occurred. That is pretty proactive behaviour on your part, is it not? Rear Adm. Ritchie-Remember that certainly by 20 November, when the CDF had given a written directive to Major General Powell, there was going to be some sort of inquiry. So things did start to move, as we have discussed previously. I cannot give you any more concrete evidence as to why I knew that, but things started to move from about 8 November fairly rapidly, in a public sense. Senator FAULKNER-And you say you would like to comment on- Rear Adm. Ritchie-No, I did not say I would like to comment. You have asked me to comment on how I knew that, and I can give you no more than what I have already said. It is obvious that from 8 November, from the time that Shackleton stands up and makes his first statement to the time that Major General Powell has the directive in his hand on 20 November to conduct an initial investigation, there is a lot more public interest in this activity than there has been between, say, 11 October and 8 November. CHAIR-Are you concerned that, because the record was not corrected, the Navy is being used as a political pawn here? Rear Adm. Ritchie-I think that, if I have any concern about the Navy, it is what the public's perception of the Navy is. I think the public perceive that the Navy has done what it has been asked to do, and done it well. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 397 CHAIR-But key authority figures have said no-one told them. That is why they did not correct it. You have given us evidence that you did tell them. Rear Adm. Ritchie-That has got nothing to do with the Navy; that has got to do with me. And, although I sit here in a naval uniform, I am operating in an ADF joint position- CHAIR-Well, I will extend it to the ADF. Rear Adm. Ritchie-It has got to do with the people who sit above me. But it should not impact on the Navy in that way. Senator FAULKNER-But you could say to us, couldn't you, that there is no impact of this matter, this issue, on morale in the Headquarters Australian Theatre? You could say to us whether there was or there was not. That seems to me a reasonable question to ask. So let me ask it. Rear Adm. Ritchie-There is no discernible impact on the morale of the Headquarters Australian Theatre by this particular incident. CHAIR-My question about the politicisation of the defence forces is in this context. We have got an election on. The day after the election is called, 7 October, this SIEV becomes the subject of a statement by a minister and by the Prime Minister, which within days you know to be wrong. You pass that advice up the chain of command. The record remains uncorrected. When, after the election, there is a report into this, the defence of the relevant ministers is to say, `No-one told us.' But you did pass it up the chain of command. And people voted in an election believing the original circumstances to be true, not that what was true was the truth. They did not know about that. Does that not in any way worry you in terms of using your honesty, loyalty, integrity and commitment to the chain of command and manipulating it politically? Rear Adm. Ritchie-Senator, my expertise is in what I did, and I have told you what I did. I think that you are quite free to draw your own conclusions as to what I might think about the subsequent use, non-use or whatever of the material that I offered, but I am a public official and I do not really think that I am in a position to offer comment on the business of the government of the day. I really think that is what you are asking me to do. CHAIR-Are you aware of this directive that came out on 8 August about public comment? Rear Adm. Ritchie-This is 8 August last year? CHAIR-Yes. It has now been countermanded by a replacement directive which, if I understand the replacement, returns it back to a more open scenario and pretty much like that which applied before this. Rear Adm. Ritchie-I would applaud that most recent directive. CHAIR-Does that mean that you do not approve of this one, which required the centralising of all public reporting of what goes on in the minister's office? CERTAIN MARITIME INCIDENT CMI 398 SENATE-Select Thursday, 4 April 2002 Rear Adm. Ritchie-It means that I believe that the services ought to have a freer hand in explaining to the Australian public what it is they do and how well they do it. CHAIR-But this directive on 8 August did not give the forces a clear hand, did it? Rear Adm. Ritchie-Not as clear a hand as they have now, no, certainly. CHAIR-And it did centralise the final reporting in the hands of the minister's office, didn't it? Rear Adm. Ritchie-It centralised the public affairs of the department, yes. CHAIR-Commander Banks was out of order in talking to Channel 10 because he breached that format. Rear Adm. Ritchie-He certainly was. CHAIR-If he had not breached that format, we would know nothing about this. Rear Adm. Ritchie-I do not think so, because his conversation with Channel 10 really did not touch on the issue which has now become of central attention. I think the transcript of what he said to Channel 10 talks about the recovery of those people. CHAIR-But the whole myth about children overboard started to unfurl with that conversation, because it put Channel 10 and other reporters in the hunt for the photographs; and, when the photographs were later displayed alleging evidence and you saw it on the 7.30 Report, you knew that that was wrong and you reported it. Rear Adm. Ritchie-You listen to all the evidence-and you might know more about this than I do-but I have never drawn a direct connection between Norman Banks's interview on Channel 10 and the photographs, no. CHAIR-But there is the right of the public to know the truth, and there is an obligation on the defence forces to obey a command. This is a command which centralises all of the truth with the minister, which has now been countermanded after the election and which you applaud the countermanding of. Rear Adm. Ritchie-I applaud the new direction in public affairs. CHAIR-Commander Banks is quite forthright in that he should not have said what he did. But, had there not been that discussion, there would not have been the hunt necessarily for the photographs. We would have been left with reports in the Australian on or around, I think, 7 November that the crew from the Adelaide on Christmas Island had allegedly said to residents of Christmas Island that children were not thrown overboard, that it was all a big lie. Maybe your answer is the same as the previous answers-and if that is your position I respect it. Rear Adm. Ritchie-My answer remains the same, Senator, no. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 399 Senator BRANDIS-I was struck by something you said to Senator Mason. I know that these are not your very words but, as I understood you, you said that one of the features of these various SIEV incidents that became apparent was that the crew had relatively little control over the vessels and that the dominant male SUNCs exercised authority over the crew. That is the effect of what I understood you to say. Is that right? Rear Adm. Ritchie-Yes, that is correct. Senator BRANDIS-Perhaps I can show you this witness statement. This is not in relation to SIEV4; this is in relation to the previous SIEV incident, SIEV3, involving HMAS Warramunga on 12 September. It is a witness statement by Lieutenant Commander Simon Paul Gregg, who was the executive officer of that ship. The bit I wanted to direct your attention to is at the foot of page 7. Let me read it aloud to you-it is the last paragraph: At 1558 alongside SIEV 03 ABEWL Dollisson asked the Master if he was lost. The Master acknowledged- that is, the master of the SIEV vessel- clearly that he was lost. The chart was handed to the Master and it was explained to the Master in Bahasa- I take it that that is the language that he spoke- that he had to steer 270T for 6 hours and then- is that `008T'? Rear Adm. Ritchie-Yes. Senator BRANDIS-The statement continues: While Dollisson was explaining to the Master the courses he had to steer the Master gestured with his hand his throat being cut indicating he was not safe. The PIIs were becoming more and more agitated with women and children crying and pleading to come to Australia. After delivery of the chart to the Master the RHIB returned to WARRAMUNGA. Is that reaction by the master-gesturing to an apprehension that, if he obeyed or acceded to the request by Able Seaman Dollison, his throat may be cut-consistent with the type of conduct you were describing when you answered Senator Mason before? Rear Adm. Ritchie-It is exactly the type of conduct, and that is a good example of that. Senator BRANDIS-And that is one example of many? Rear Adm. Ritchie-It is one example of many, I believe. CHAIR-The master of this vessel is someone whom I have previously described as a `people smuggler', is he not? Rear Adm. Ritchie-I have heard you use that term. I would not use that term. I would use the term `people smuggler' to mean the syndicate that is organising this, the people making the CERTAIN MARITIME INCIDENT CMI 400 SENATE-Select Thursday, 4 April 2002 arrangements. We often find the crew of these vessels to be not necessarily very sophisticated people and perhaps not with a great understanding of what it is that they are doing. I think that they are hired for the purpose, but you could attribute that term to them-that is what they are doing. CHAIR-Let me put it another way. If his cargo was drugs and not people, you would call him a `drug smuggler', wouldn't you? Rear Adm. Ritchie-You probably would, yes. CHAIR-His cargo is people, so you could call him, rightfully, a people smuggler, irrespective of how innocent or how focused on his role he was, who was manipulating or using him and for what reasons and how much he was being paid to do that job. That is a fair call, isn't it? Rear Adm. Ritchie-You could say that, yes. CHAIR-If he is a people smuggler and he is taken into Australia, he can face quite severe charges, can he not? Rear Adm. Ritchie-Yes, he can. CHAIR-So he would say what he said, wouldn't he? He would want to an authoritative figure like a captain of a vessel coming alongside put the first leg of his alibi down, would he not? Rear Adm. Ritchie-He probably would, yes. CHAIR-He would say, `Don't blame me; blame them'? Rear Adm. Ritchie-Yes. CHAIR-That is all. Senator FAULKNER-I would like to ask one question, Admiral, which goes to a lot of your evidence talking about the chain of command, appropriately so, and how the chain of command has dealt with the issue that we have been canvassing, as it should-which is the point, I think, you made to us. I think that is fair, isn't it? Rear Adm. Ritchie-Yes. Senator FAULKNER-But the issue, I suppose, remains: what happens when the chain of command does not work-in other words, the message is not getting through-at least here as far as correcting statements which should be forthcoming from the government are concerned? What happens in that instance? I am asking you that from a Defence and Navy perspective-a chain of command perspective perhaps-to give a slightly different emphasis to some of the questions I have been asking you. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 401 Rear Adm. Ritchie-I think the question that goes unsaid with that is: who decides that the chain of command has not worked? How far down the chain of command do you allow that question to be asked and then, unilaterally, action taken to correct it? Again, I think that is part of the notion of military discipline and military command. You might come to the point where things are patently illegal. There is an expectation that people will say that, if we have moved to the patently illegal, the chain of command has not worked and you do something else. But everything else is not as easy to decide as that when it is something that is patently illegal and it is a question of: who decides? In the case we are talking about, it is very much the role of the Chief of the Defence Force to decide whether the chain of command has not worked-and, again, he has talked about that. Senator FAULKNER-But you would not say that something had to be illegal? The chain of command- Rear Adm. Ritchie-I am just saying that is one obvious example of when you say that the chain of command had worked. Senator FAULKNER-Yes, and I accept that. It is a good example. In this case we have got an example of the chain of command not working on a matter that is misleading the Australian public. Rear Adm. Ritchie-Again, that is the point on which I take issue with you, Senator. We do not have evidence that the chain of command does not work. The chain of command works. What you might have is evidence that the outcome that you sought from that is different. Senator FAULKNER-No. With respect, if the chain of command is used to get a message through to the government to correct misinformation in the public arena and that information does not come out until a very long time after the relevant period- Rear Adm. Ritchie-I do not-and I do not think that you do-have any evidence to suggest that information was or was not passed to the government. What the government does with it is not something I am going to comment on. Senator FAULKNER-I know that is your position, but this is the problem with an absolute reliance on the chain of command. You say the chain of command did work or was utilised or used appropriately. But at the end of the day it was not good enough to have the impact many in the chain of command, including you, wanted to see occur. That is fair, isn't it? You did not want misinformation in the public arena, did you? Rear Adm. Ritchie-That is fair. Senator FAULKNER-You did not want to have people right through that election campaign period thinking that children had been thrown overboard, did you? Rear Adm. Ritchie-I did not particularly give any great thought to what people in the election campaign period might think or otherwise, but I was concerned that the information that was there was incorrect. CERTAIN MARITIME INCIDENT CMI 402 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-And you did not want photographs to be misrepresenting an incident that they did not actually relate to. That is fair also, isn't it? Rear Adm. Ritchie-That is correct. Senator FAULKNER-And you did not want the video either to be in any sense misunderstood as depicting children being thrown overboard. Rear Adm. Ritchie-That is correct. Senator FAULKNER-And you properly say to me-and you did, and I acknowledge it- you did what your responsibilities are through the chain of command to see the misrepresentations and the inaccuracies corrected. Goodwill on the part of you and others in the chain of command in Defence is not enough. I think it is worth reflecting on that as we just defend completely our position in relation to the chain of command. Rear Adm. Ritchie-I can reflect on that and, indeed, I have. But I do not wish to comment on that. Senator FAULKNER-So I ask you: how relevant is it to be able to depend totally on the chain of command if you have bloody-mindedness and bastardry on the part of a government absolutely determined in a very sensitive period to cover up an important public issue? Rear Adm. Ritchie-I am going to take that as a statement. CHAIR-Rear Admiral, we are going to make an effort to get you out of here by 6 p.m. at the latest. Is that a comfortable time for you? Rear Adm. Ritchie-That is fine. Senator BARTLETT-Just to make sure that I target the questions at the right person, in terms of the overall operations of Operation Relex are you the best person to give the finer details of the various incidents and the whole conduct of those? Rear Adm. Ritchie-No, Rear Admiral Smith would be far better than I for the details. Senator BARTLETT-I will save some of the questions for him in that case. Your role in relation to that operation-and I know you have stepped through the chain of command-is much more of a supervisory role than a hands-on one? Rear Adm. Ritchie-Yes. The notion of the Australian Theatre is relatively new. It has only been in existence since 1997. It is designed to put in at the operational level-the tactical level is Commander Banks doing his business and the strategic level is CDF talking to the government-an ability to plan across the breadth of more than one operation and to conduct more than one operation in a coordinating sense. So that is what I am doing, and that is what my headquarters is doing. All of the operations that the ADF are conducting are conducted under my auspices, but there are individuals then conducting the detail of particular business. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 403 Senator BARTLETT-In terms of getting the most informed insights-and I am not saying you cannot provide us insights-into the so-called pattern of behaviour and other atmospherics surrounding all the various SIEV incidents, would Admiral Smith again be the one? Rear Adm. Ritchie-I am aware of those patterns, obviously, because I have talked to them, but he will give you much more detail on that. Senator BARTLETT-When the Navy was brought in to be used in this way and in the development of Operation Relex, were you involved in formulating that? Rear Adm. Ritchie-We at the Australian Theatre Headquarters developed-on direction, again, from the CDF-the broad concept, the way in which we would do this particular business. Senator BARTLETT-That included new rules of engagement as well? Rear Adm. Ritchie-Yes, that included the rules of engagement. Senator BARTLETT-Are the rules of engagement able to be outlined? Rear Adm. Ritchie-The rules of engagement are indeed classified, and they remain classified because they are exactly what they say. The rules of engagement are the limitations that are placed upon operational units in engaging with those things that they are going to come up against. Before Relex there were really no specific rules of engagement for this business. There are what are known as standing peacetime rules of engagement, which really talk about the inherent right to self-defence if that sort of event should happen, and they were the rules that were used-and indeed they are used by all maritime and other units who have no other specific operational direction-for the patrol boats that were out there and used to see the SIEVs coming into Christmas and Ashmore. The whole notion of Relex was to prevent SIEVs from entering the Australian territorial sea; therefore, we are now talking about a positive action against these boats. Therefore a set of rules of engagement were developed which, in essence, outlined the degree of force that can be used and whether or not fire can be used-those sorts of things. It is not the plan for the operation; it is a set of rules of engagement which really talk about the specific levels of force that you can use. We could certainly give you in private a more detailed briefing on those rules of engagement if you would wish, but that is essentially what they are. Senator BARTLETT-I presume-and I put this in a shorthand way-that it basically authorised more significant use of force than would have been used previously against vessels arriving in this way. Rear Adm. Ritchie-Yes. Normally, other than in self-defence, the use of force is not authorised. That is the norm. So we are moving up the scale a little and saying, `Okay, you can use a degree of force in order to turn these boats away. You can be armed, for example.' You need a specific rule of engagement to keep moving up the continuum of the application of force. But it is a fairly low level in this operation and safety remains the overriding factor in this business. CERTAIN MARITIME INCIDENT CMI 404 SENATE-Select Thursday, 4 April 2002 Senator BARTLETT-You have said that you were involved in developing the overall objectives of Operation Relex. Commander Banks quite often talked about his aim to prevent a mission failure. Is there a mission statement or a specifically codified order of priorities for the mission? Rear Adm. Ritchie-The mission statement, for example, was to conduct surveillance and response operations in order to deter unauthorised boat arrivals from entering Australian territorial waters within the designated area of operations. The area of operations was quite expansive-it encompassed Christmas Island at the one end and Ashmore at the other. Senator BARTLETT-You could not have sat through all the questioning we had of Commander Banks. It probably would have been a bit of an ordeal. Rear Adm. Ritchie-For him as well, I think. Senator BARTLETT-You may be aware that one of the issues I was trying to pursue with him was in terms of when that primary mission of keeping people out gets overridden by the safety of life at sea situation- Rear Adm. Ritchie-I can give you some advice on that. This is not within the rules of engagement so put the rules of engagement aside-it is about the application of force. In terms of the concept of the operation and the specific directions as to how to go about doing this, the basic direction was to warn vessels before they entered the Australian contiguous zone that they are not allowed to come in and that there are heavy penalties for people who bring people in illegally-and all those sorts of things. If they came inside the contiguous zone the direction was to board and move them out. That is where the ROE comes in-because you might need to apply a certain amount of non-lethal force in order to be able to do that. The direction was to do that up to two or three times and if they kept on coming back then, in the end, to go back through the chain of command and seek direction as to what we were going to do with this particular vessel. There was a specific direction given that said if people jumped, fell or otherwise were removed from a seaworthy vessel they were to be returned to that vessel- Senator BARTLETT-I am sorry to interrupt you. Was that part of a standing pattern of requirement or was that a direction for the SIEV4? Rear Adm. Ritchie-That was a direction that was specifically given in early September for this operation. Senator BARTLETT-For SIEV4 or for the whole lot? Rear Adm. Ritchie-No, for the whole lot. What I am saying applies to SIEVs 1 to 12. Senator BARTLETT-That directive was decided by whom? Rear Adm. Ritchie-It was a direction from CDF to me saying, `You are to make sure that this is the way the game is played.' Then if people were in a vessel which was sinking they were to be rescued and treated at as survivors at sea. In the notion of returning the vessels to Indonesia or the place whence they came, the uppermost issue was always: CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 405 The safety of ADF personnel and the wellbeing of the unauthorised boat arrivals and Indonesian crew members is to be held paramount. That is an extant direction that overrides everything. We are talking about people coming to Australia illegally. It is not World War III. Senator BARTLETT-Thank you for that; it is helpful. A few times during the hearing we have heard evidence about orders coming from the Prime Minister or the Prime Minister's office on where to tow a vessel. Where does that fit into that? Rear Adm. Ritchie-I think some of that has been incorrect or misunderstood. In fact, I note that on the night of 7 October, when the vessel was taken in tow by the Adelaide, I gave the direction to do that, and I wrote in my notes-which you probably have-that I said to take it in tow and keep it at sea overnight until we get to the next step in deciding what to do with it. Senator BARTLETT-I think the suggestions about the Prime Minister's office came from log recordings and things like that. Rear Adm. Ritchie-I know. What I am saying to you is: how would the boarding party officer really know whether or not the Prime Minister or his office had given a direction? That is something which is a bit beyond me, and I was surprised when I heard that. Senator BARTLETT-So there was no involvement of the Prime Minister's office in any of the commands? Rear Adm. Ritchie-Again, I think you would need to talk to the man himself and ask CDF. But I believe that, once we had got to the point that SIEV4 had sunk and we had recovered the people on board the Adelaide, the issue of what to do with them certainly had some direction coming from either the Prime Minister or his office. Senator BARTLETT-But, as far as you are aware-and I will pursue this more with Rear Admiral Smith because, as you say, he can probably better answer this-there were no orders or directions in relation to operational matters? Rear Adm. Ritchie-Not directly. I made the point of saying in my opening statement that I run this and I do not take any direction from anybody else, other than the CDF. Senator BARTLETT-I do not know whether you have had a chance to examine any of the submissions we have received from the public-I am not suggesting that you are required to do so-but a few of them relate to the broader issue of the impact on the defence forces. I am talking here not so much about the impact of the SIEV4 incident alone but about the whole use of the Navy in this Pacific solution turning around and, as we have already established, creating a new role for the Navy. The submissions have referred to the impact on the overall operational capacity of the Navy and to the use of the defence forces for political purposes. Firstly, the submissions from the Australia Defence Association and a couple of professors at the Australian Defence Force Academy raise the issue of defence for political purposes and see the `children overboard' incident as just one incident in a broader, worrying trend, if you like. CERTAIN MARITIME INCIDENT CMI 406 SENATE-Select Thursday, 4 April 2002 My initial question probably relates to your reference to Brigadier Silverstone's comment about being concerned about a certain trend in defence issues, including defence management. I assume you would agree that even the perception of the Defence Force being used for political purposes is an undesirable situation? Rear Adm. Ritchie-I do not want to go back into Senator Faulkner territory, but what is a political purpose? Is the war against terrorism a political purpose? Was the Second World War a political purpose? Senator BARTLETT-I suppose these things are always a matter of judgment. Rear Adm. Ritchie-What else do you use the defence forces for, really? Senator BARTLETT-I will put it to you a different way. I am certainly not trying to put words in your mouth, unlike others. You would agree that there is a need for- Rear Adm. Ritchie-I think the business that is going on in Relex, if you are asking, is a legitimate task for the Defence Force. Senator BARTLETT-No, I am not actually asking that, but I appreciate your opinion on it. We have had evidence about issues to do with the line of command and the control that existed previously by the ministerial office in terms of Defence communications. The issue has been raised, and it has been raised, as I say, in submissions from people from the Defence Force Academy, so I do not think it is a partisan sort of statement. They have emphasised the importance of ensuring that the defence forces are seen to be above politics. Would you agree that to be seen above partisan or party politics is a desirable situation? Rear Adm. Ritchie-I would agree that to be seen to be above partisan or party politics, I would agree that that is desirable. Senator BARTLETT-Professor Smith's submission from the Defence Force Academy states, in part: Ministers and those who work for them must respect and understand the traditions and conventions that govern political- military relations. At the same time, opposition parties must also play their part by recognising the special status of the ADF and of defence in the political arena. It is my belief, and I do not ask you to comment on it, that aspects around this episode have made it a bit more problematic for the defence forces in being seen to be-not an active player-used for issues in the political arena. To try to get something constructive out of this inquiry is to try to find ways to prevent situations like that from happening again. So without you having to pass an opinion on whether you would agree with my view, what mechanisms do you believe are desirable, or are there improvements that you believe would be desirable, to guard against the defence forces being used for political purposes or being too much under the control of the government of the day? Senator Ferguson interjecting- Senator BARTLETT-I am asking for improvements on the way we can do things in future. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 407 Senator FERGUSON-Is it a sermon or an opinion? I am not sure what he is asking for. Rear Adm. Ritchie-The only thing that comes to mind is for the defence forces, with the government of the day, to come to an agreement as to how they will disseminate public information. I think that step has been taken in the new instruction that has come out, which Senator Cook has referred to. As I said, I applaud that instruction and I think that that is a way in which you can seek to prevent the sorts of things you are talking about. Senator BARTLETT-When Operation Relex was being put together, were you specifically aware of the number of Navy vessels that would be required as part of that or was that a fluid thing? Rear Adm. Ritchie-As part of the concept of operations that we proposed we said, `We think we need about this many vessels and this many aircraft.' Senator BARTLETT-The three frigates? Rear Adm. Ritchie-I think at the start it was three frigates, yes. Senator BARTLETT-How many are involved now? Rear Adm. Ritchie-There are two major units and a number of other units. Senator BARTLETT-So that was an assessment by you. Rear Adm. Ritchie-It is a sort of professional assessment. We looked at the area, we looked at the patterns and said that was what we would need. Senator BARTLETT-As to what would be needed to meet the requirements, did that also include assessments about what that would mean for the overall operational capacity of the Navy or the defence forces? Rear Adm. Ritchie-Yes, very much so, and that is an ongoing process. Every operation that we do is an ongoing process of saying what impact is that having on other things that we might wish to do or training that we should be doing, or whatever. Senator BARTLETT-I might leave it there because most of the questions that I have left to ask, I can ask of Rear Admiral Smith. CHAIR-Rear Admiral, I think your evidence is complete. Thank you very much for your attendance at the inquiry. CERTAIN MARITIME INCIDENT CMI 408 SENATE-Select Thursday, 4 April 2002 [5.56 p.m.] SILVERSTONE, Brigadier Mike, Commander Northern Command, Department of Defence CHAIR-Welcome back, Brigadier. Please feel free to blame me for putting you in an invidious position earlier. I will accept that responsibility. Your oath continues through. Senator Mason can lead the questioning. Senator MASON-I might yield to Senator Brandis, who has just a couple of questions. Senator BRANDIS-I have just two issues, Brigadier Silverstone, which perhaps I should have raised with you in the earlier questioning, regarding your evidence, as I understood it, of your telephone conversation with Commander Banks at the critical time, which according to your diary was 1720 Darwin time. As I heard your evidence, you said that Commander Banks was `emotional'. Would you care to expand on that? Why do you say that? How did he evidence signs of emotionalism in his conversation with you? Brig. Silverstone-It was only in connection with his response to my question about how old was the child. He said, `Five, six or seven-I can't tell,' and there was just an increase in pitch. The sense I had was that he was dealing with the situation there and it was, sort of, that he wanted to get on with it rather than answer my questions. Senator BRANDIS-Did he seem upset? Brig. Silverstone-No. He was not emotionally upset; it was just a sense of a frustration. When you are dealing with a relatively chaotic activity and then are called to have a conversation about that activity with a superior, that can be annoying because it is interfering with you doing your job. The sense I had was it was Commander Banks's way of indicating some frustration with having to have that communication. That is one of the reasons why the conversation was very short: because I was monitoring what he was saying, listening and taking his tone, and we kept it a very short talk. Senator BRANDIS-Commander Banks is obviously a courteous gentleman, but would it be fair to say that, allowing for that and allowing for appropriate deference to a superior officer, he was trying to get you off the phone as fast as possible? Brig. Silverstone-That is my sense, yes. Senator BRANDIS-One other thing on the conversation you had with Commander Banks: at any time up to and including 8 November did Air Vice Marshal Houston have a conversation with you about that event? Brig. Silverstone-No. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 409 Senator BRANDIS-Did Brigadier Gary Bornholt have a conversation with you about that event? Brig. Silverstone-No. Senator BRANDIS-Did either of them to your knowledge ever seek to communicate with you up to and including 8 November in relation to that event? Brig. Silverstone-Not to my knowledge. Senator BRANDIS-Had they done so in the ordinary course of events, would you be aware that they had done so-that is, sought to get in touch with you? Brig. Silverstone-I believe so. Senator BRANDIS-Thank you. Senator MASON-I will not hold you up for too long. I have just a few quick questions. You mentioned in response to questions from Senator Faulkner that this special arrangement with respect to SIEV4 where you spoke directly to Air Vice Marshal Titheridge only related to the SIEV4 incident. Brig. Silverstone-It only related to 7.30 on the morning of 7 October. Senator MASON-Brigadier, are you aware of other SIEV incidents after the SIEV4 incident of 7 October? Brig. Silverstone-Yes, I am. Senator MASON-Brigadier, what are the reporting arrangements for those other SIEV incidents? I will hold up this document again-annex C to the report by Major General Powell-which, as I understand it, is the chain of command. Is that correct? Does that operate with respect to SIEV incidents following the SIEV4 incident in early October? Brig. Silverstone-The chain of command is from the responding vessel's CO to me, to NCC AST, to Headquarters AST and then into Canberra. Senator MASON-Thank you. In response to a question from Senator Faulkner about a conversation with Mr Moore-Wilton, you mentioned that Mr Moore-Wilton and the IDC had shown some interest in the SIEV issue. Do you know-you may not know this but let me put it to you-whether reports of other SIEV incidents after SIEV4 have reached the interdepartmental committee on people-smuggling? Brig. Silverstone-I am aware that they have, especially on issues to do with where we are attempting to return a vessel to the vicinity of Indonesian territorial seas. The management of that receives, as far as I am aware, considerable discussion. CERTAIN MARITIME INCIDENT CMI 410 SENATE-Select Thursday, 4 April 2002 Senator MASON-For example, Brigadier, with SIEV6 on 22 October, SIEV7 on 24 October and SIEV9 in late October and in November, the IDC would have been apprised of those particular SIEV incidents; is that right? Brig. Silverstone-I am confident that that would be the case. Senator MASON-Thank you, that is fine. Senator Ferguson, I will pursue that later on. Were you listening to the evidence of Rear Admiral Ritchie? Brig. Silverstone-Yes. Senator MASON-I will not dwell on it now, but the question has been asked about the fact that, until Senator Brandis asked questions relating to the Titheridge minute, many of these other SIEV incidents were not really part of public knowledge. It will be interesting to discover exactly what the chain of command was, who decided not to report and who decided to report and so forth. Brig. Silverstone-I do not think I am in a position to respond to that. Senator MASON-I understand that, sir. I just raise the issue and lay it on the table. Senator FERGUSON-In the light of what Senator Mason has said and in relation to all of the other SIEV incidents, which I presume were reported directly to you as commander of the task force, are you surprised that none of those other SIEV incidents have seen the light of day until this inquiry-in other words, they have never been in the public domain and they have never been a matter of public discussion? Senator JACINTA COLLINS-Yes, they have. Senator FERGUSON-They have not really. Senator JACINTA COLLINS-The SIEV10 incident was reported publicly in the papers. Senator FERGUSON-But SIEV7 was not. Senator BRANDIS-Is it the SIEV10 incident to which we have drawn attention for the first time in this committee? Senator JACINTA COLLINS-I am just wanting Senator Ferguson to be factual. Senator FERGUSON-I am asking Brigadier Silverstone, Senator Collins, not you. Brigadier Silverstone, of these incidents with all the other SIEVs, which I have no doubt were fully reported to you in your role as commander of the task force group, are you surprised that none of them reached the public domain in the light of the fact that SIEV4 did? Brig. Silverstone-I would not say that I was surprised, but it is an issue I remarked on to the Maritime Commander. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 411 Senator FERGUSON-So you have remarked on it to Maritime Command? Brig. Silverstone-I have, yes. Senator MASON-You spoke to Mr Reith on 31 October- Brig. Silverstone-That is correct. Senator MASON-about `children overboard'? Brig. Silverstone-I spoke to him about the video. Then I followed on by saying that we had concerns about whether children had been thrown into the water or not, and we had investigated that. Senator MASON-In that conversation with the minister, did you raise with him the SIEV7 incident of 24 October where a child was dropped over the side into the water? Brig. Silverstone-No, I did not. Senator MASON-You did not? Brig. Silverstone-No, I did not. Senator MASON-That was just one week before you spoke to Minister Reith. Can I ask you why you did not raise it. I am just curious. Brig. Silverstone-The minister was in my office for a very short period of time. On 29 October, we had concluded removing SIEV7 back to Indonesian territorial seas. SIEV6 was at Christmas Island, it had ultimately sunk, and we had moved the people on board that SIEV onto Christmas Island. On the 30th, we put SIEV8 on some transport to move them to Christmas Island. Then, on the morning that the minister walked into my office, SIEV9 had arisen. So this had been a period of frantic operational activity. I had this very brief discussion with the minister and my office, and I had actually taken the decision not to talk to him about the SIEV9 issue, which had just started. While he was in my office, I was down getting a quick briefing on where that was, and my view was that it was better for me to pass this information through the chain of command. Senator MASON-So, even though you had this sort of focused discussion on `children overboard' relating to SIEV4, you did not think it was appropriate to raise the issue that a child was in fact dropped overboard just a week earlier; you did not think that was appropriate? Brig. Silverstone-It was not in my mind, because so many things had happened in that previous week. Senator BRANDIS-On reflection, do you now think that you should have informed the minister of the SIEV7 incident when you had that conversation? CERTAIN MARITIME INCIDENT CMI 412 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-I had not considered that proposition until you asked the question. Senator BRANDIS-Can I invite you to consider it now? We are talking in the context of your having a conversation with the minister about whether or not a child or children had been thrown overboard from a vessel on 7 October. You expressed some views to the minister as to the strength or lack of strength of evidence for that proposition. You knew at the time that, whether or not it had happened with SIEV4 on 7 October, it had happened in relation to another vessel even more recently on 24 October. So the very conduct which was of concern to the minister was verified conduct, although occurring on a different occasion. Having regard to those considerations-I do not mean any particular criticism by this, but let us be candid-don't you think, on reflection, it would have been appropriate to mention the fact that such conduct had been engaged in even more recently? Brig. Silverstone-It may well have been, but I- Senator BRANDIS-If you had your time over again, would you mention it? Brig. Silverstone-No, I do not think so. Senator BRANDIS-Why not? Brig. Silverstone-Because, as I said, at the time I was talking to the minister there was a whole range of issues such as the caretaker arrangements and it was inconceivable that the minister had not been told by the CDF. As far as I was aware, we were passing detailed reports of these activities up the chain of command and these issues, which would have been of interest to the minister, I would have thought, may have been quite properly brought to his attention. At that time, in my view, I was concerned to conduct myself appropriately within the chain of command. Senator BRANDIS-So, in short, it was a chain of command issue; it was not appropriate for you to mention the dropping of the child into the water from SIEV7 because that was a piece of information for your superior to communicate? Brig. Silverstone-If the minister had asked me a question such as `Have you seen the video?' I would have spoken to him directly about the issue. If he had said to me, `And have there been other incidents?' I would have been in a position to talk to those issues for him. But the time he was in my office was constrained and it was occupied with this very brief conversation about SIEV4. Senator BRANDIS-With respect, Brigadier, there strikes me as being a certain artificiality about that. The minister is asking you whether or not, in effect, a child has been tossed into the water on 7 October and you cast doubt on the reliability of the earlier information. You know, though, that the very conduct about which the minister was concerned to inquire does happen and has happened even more recently-just a week before-and yet, knowing that and having that in your mind, you refrain from telling the minister that. Brig. Silverstone-You do not know what was in my mind, Senator. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 413 Senator BRANDIS-I thought we had established that at the time you had your conversation with the minister you did know about the SIEV7 incident on 24 October. Brig. Silverstone-I was aware of that but, as I have indicated, that was a period of particularly frantic operational activity involving SIEV6, SIEV7, SIEV8 and SIEV9 and- Senator BRANDIS-We know that this was happening all the time and that there was a lot on your plate, as it were. But I put it to you, Brigadier Silverstone, that what the minister was apparently concerned about was whether this conduct was engaged in and you knew it was and you knew it had happened even more recently than the minister believed that it had happened but you refrained from telling him. That is what it amounts to, isn't it? Brig. Silverstone-No, it does not amount to that. I did not have a conscious thought about SIEV7. You put it to me, `Did you know about the reported incident with SIEV7?' Yes, I did. `Did it come into your mind when the minister was in my office?' No, I do not think so. I have no recollection of that. Senator BRANDIS-All right, thank you, Brigadier. Senator MASON-Brigadier, you did report the SIEV7 incident, though, up the chain of command? Brig. Silverstone-Yes, we did. Senator FERGUSON-Brigadier Silverstone, I want to go back to your telephone conversation with Commander Banks, because there are one or two things I want to clarify. In the chair's final questioning of Commander Banks just before he concluded his evidence this morning, he put a series of propositions, to which Commander Banks responded. In one of those, Commander Banks said that the Adelaide had never conveyed a message that a child had been thrown overboard, which is in contradiction to your evidence this morning. So we have these two positions: Commander Banks's position and your position and your diary notes which you took at the time of the conversation. Since that time, have you discussed that conversation with Commander Banks? Brig. Silverstone-Only two weeks ago. He rang on coming back into town, made contact, and we had quite a stiff conversation in which we agreed we had a fundamental disagreement about what we spoke about on that morning. Senator FERGUSON-So you told him that you had your diary notes- Brig. Silverstone-Yes. Senator FERGUSON-which included `5, 6 or 7' at the end of one of those sentences? Brig. Silverstone-Yes. CERTAIN MARITIME INCIDENT CMI 414 SENATE-Select Thursday, 4 April 2002 Senator FERGUSON-It just seems inconceivable to me that someone could suggest that you would write down `5, 6 or 7' in your diary notes-just as one instance-if in fact a child had never been mentioned. In your discussions with him, did you talk to him about your notes and the fact that you had written down `5, 6 or 7' and the time of the conversation? Brig. Silverstone-Not in this conversation a couple of weeks ago. On 11 October, when he had forwarded the statements from the personnel on his ship, we had a discussion in which I read to him my notes and, indeed, the text of the email I was in the process of sending onto the Maritime Commander-to NCC AST-that was also forwarding the sailor statements. Senator FERGUSON-From what has been presented to us today, we have on the one hand Commander Banks, who was commanding the Adelaide in the middle of an operation, which was a hectic operation and, to use Commander Banks's own word that he said during his evidence, a `confusing' time as well, when in fact he had the incidents being reported to him by boarding parties and he was on the phone to you-he had no time to take any notes and has only the recollections of what he believes he said to you or did not say to you-and on the other hand you have your own recollections, which you have stated quite clearly to us today, and to back up your recollections you have notes that you actually took at the time of the conversation. It just seems to me inconceivable that, once presented with those facts, Commander Banks would not perhaps admit that he may have said those things, because not only do you have your recollections but also you have notes taken at the time which were quite specific, particularly your writing down `5, 6 and 7'. Is that a fair assumption to make? Brig. Silverstone-What was your question then, Senator? Senator FERGUSON-My question is that when you were discussing this with Commander Banks at any time-presenting the evidence that you had in your written notes and the fact that you had clear recollections because you were not at the scene of the action and it was a brief conversation; you have your clear recollection and your notes-Commander Banks was not prepared to accept your version of the events. Brig. Silverstone-That is because it is apparent from his evidence that he has another recollection. Senator BRANDIS-Can I come in on that. I want to direct you on this very point to three pieces of the transcript of Commander Banks's evidence to this committee. There are many to this effect, but I have just picked out three good bits. On page 172 this is Commander Banks: I do not ... recollect having used the phrase that I have been reported as saying that children were thrown overboard. He goes on: I certainly spoke to the brigadier on several occasions on that day. I certainly recollect speaking about `man overboards', people being in the water, and I certainly recollect talking about the child being held over. The exact wording that I used I cannot recollect. Then, at page 204, in response to Senator Collins, Commander Banks, again referring to this conversation, said: CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 415 It would be my assessment that if he- that is, you, Brigadier- recollected that I said something then I would have said it ... Then at page 213, in response to my learned friend Senator Faulkner, he said: Throughout the whole thing I would love to be emphatic and say `I said' or `I didn't say'. With the passage of time, I have moved much closer to clearly saying `I believe I didn't say', because of all the other pieces of information that I have been made privy to. In early October I remained confused and was a bit more able to swing each way ... And then-I can't remember exactly where it is-in response to a question from me, `Do you accept that Brigadier Silverstone's version of the conversation is correct?' Commander Banks said no, and then I asked, `Do you accept that Brigadier Silverstone's version of the conversation may be correct?' and he said yes. So it is not all that clear to me, Brigadier Silverstone, that Commander Banks is saying that your version of the conversation is wrong. It sounds to me much more the case that he is saying, `I just don't know. To the best of my recollection, I don't recall saying that, but I may be wrong.' He very freely said that, and that is why I am perplexed that you would have had a dispute with him, unless in that dispute he was taking a more adamant view of the conversation with you than he has taken on oath before this committee. What do you say about that? Brig. Silverstone-What I would say is the conversation that he and I had happened back on 11 October, at a time when it was clear that this was a very high profile issue, and quite clearly one of us had said either a child was being threatened to be thrown into the water or a child was being thrown in the water-a fundamental disagreement. And when we had this discussion my view was that he disagreed with that position. What his position is now is for him. All I can say is I know what I heard him say, and I have continued to repeat that and I- Senator BRANDIS-You have a diary note and he doesn't and your recollection is clear and his evidence is that his recollection is not clear. Brig. Silverstone-Yes. Senator FERGUSON-At no stage, Brigadier Silverstone, have you been confused about your recollection of the events? Brig. Silverstone-Of course I have asked myself the question but it is very clear to me: I know what I heard, I wrote down what I heard and I have not shifted from that. Senator BRANDIS-You are quite clear in your own mind that what you have related is the actual conversation that took place? Brig. Silverstone-The notes reflect the content of the conversation. Obviously, some of those notes, where I have asked questions and things, are `words to the effect that' but, yes, the spirit of the conversation was that he told me that a child was thrown over the side and when I asked the age he said that it was five, six or seven. CERTAIN MARITIME INCIDENT CMI 416 SENATE-Select Thursday, 4 April 2002 Senator BRANDIS-I suppose for completeness we should say that at the time you had this conversation you were sitting in your office, neither under pressure nor emotional nor distracted by the press of events; whereas he was on the bridge under pressure, as you say, emotional and distracted by the pressure of events. Brig. Silverstone-He was not emotional. He had a tone of frustration in his voice in response to my specific question about the age. With regard to where I was sitting, yes, I was sitting in my office. I had gone to my office specifically to take this phone call, jotting the notes as I took the phone call because I knew I had to turn around and talk to Air Vice Marshal Titheridge some moments later. Senator BRANDIS-You knew it was an important conversation, didn't you, for the very reason that you had to give an account of it as soon as it was over to your superior in the chain of command? Brig. Silverstone-To Air Vice Marshal Titheridge, yes. Senator FERGUSON-In accordance with the special arrangement that had been made? Brig. Silverstone-In accordance with that requirement, yes. CHAIR-On that last point, I am not sure whether you saw the statement that Commander Banks read to the inquiry upon being sworn all those days ago. On page 25, it says: In summary, by 10 Oct, and certainly by 11 Oct it was clear to the CO ADELAIDE, CJTF 639 and MCAUST that no children had been thrown overboard and no children had been recovered from the water. In my mind- and I want to emphasise this- this had never been an issue and had not been raised by me. That was the statement which he wrote and read into the record at the commencement of his evidence and which he confirmed at the conclusion of his evidence in answer to questions from me. We have other references but it seems to me that that is a considered reply. That does seem to square with what you have said about this difference of view and this clarity on the part of Commander Banks, doesn't it? Brig. Silverstone-That is your view, Senator. Senator FAULKNER-And you apparently do not adopt it. Brig. Silverstone-My position is that Commander Banks has taken a range of positions on this issue for his own reasons and in response to his understanding of the circumstances. My position is that we had this conversation at about 0720 and he made the report to me that I have presented to this inquiry. CHAIR-What hour was 7.20 where Commander Banks was? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 417 Brig. Silverstone-0720 was 0450. CHAIR-0450? Brig. Silverstone-Yes. CHAIR-Is that 0450 in the morning? Brig. Silverstone-Yes. CHAIR-This is prior to sun-up? Brig. Silverstone-Yes, indeed. CHAIR-Sun-up was at 0530 in the morning, wasn't it? Brig. Silverstone-First light was about 10 or 15 minutes away. Sun-up was another 30 minutes away. CHAIR-Yes. Brig. Silverstone-Sun-up was 30 minutes further on from where I am. CHAIR-I wanted to go back to that point because in his written statement he does say, and I quote it accurately for you: In my mind this had never been an issue and had not been raised by me. Brig. Silverstone-`Had it not' or `and it wasn't'? CHAIR-He said: In my mind this had never been an issue and had not been raised by me. We had a lot of things read into the record a moment ago. I am just going to the original statement made by Commander Banks and confirmed by Commander Banks, at least to my mind, when he concluded his evidence. Senator FERGUSON-He has given 10 hours of evidence since, Mr Chairman. CHAIR-That was what he said at the beginning and that was what he confirmed at the end. Senator FERGUSON-He had not been questioned at that stage. CHAIR-You have had put to you, Brigadier, a number of things which suggest a wavering of view, but that evidence would seem to be pretty straightforward on Banks's part, which does suggest that what you have said is right: that there is a difference of opinion between you. CERTAIN MARITIME INCIDENT CMI 418 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. CHAIR-That is my only point. I do not think there is doubt about Banks's position, that is all. Senator BRANDIS-The question is: is it a position or a recollection? CHAIR-We will debate that in due course. Senator JACINTA COLLINS-Brigadier, I have a number of questions following through your account of that conversation. Some of the issues we travailed over earlier, but there is some further clarification that I would like on them. The first of them is obviously the timing matter. I think that is fairly critical, because on the one hand you indicate that you are adamant that the timing was 7.20-odd- Brig. Silverstone-0720 my time, yes. Senator JACINTA COLLINS-and yet, according to the ship's logs, the event had not occurred at that time. Brig. Silverstone-No, the event that the ship's log reports had not occurred at that time. Senator JACINTA COLLINS-Yes, and no man overboard is reported in the ship's logs at that time. Brig. Silverstone-I understand that there is a report in the summary of events. Senator JACINTA COLLINS-You will have to take me to the specific document that you are referring to. Brig. Silverstone-Yes, I am looking for it. Senator JACINTA COLLINS-Is this the Banks summary of logs document? Brig. Silverstone-It could well be. I cannot put my finger on it at the present time, but from my point of view it does not matter what it says in the ship's log in that the ship's log reflects a whole collection of material that is sifted through. Reports are made, reports are not made; things are included in it. All I know is that we had that conversation at about 0720 or 0721 and he reported those things to me. It was at the time that the ship's boarding party had just gone on board and there was a great deal of confusion there. My sense of that is that we were having this conversation at that time and there may have been a range of contrary reporting occurring. I was not there; all I know is what he told me. Senator JACINTA COLLINS-What you are suggesting is that there is one potential scenario that makes the timing situation consistent, which is that at the time when the boarding party was first boarding the SIEV4 there were reports of a man overboard and that may have been a child? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 419 Brig. Silverstone-No. I have no knowledge of what was reported and what was said; all I know is what he told me. If we look at this differentiation in time when people were talking about the child on the roof of the SIEV, for example- Senator JACINTA COLLINS-Which was hours later. Brig. Silverstone-it was clearly later. The only explanation I can offer, not having been there, involves the confusion of the boarding party boarding. I am fairly certain that during dinner, if it is there, I will find the comment about a person going in the water. I would suggest that in the darkness there is a range of confusion and that it is at that time that I ring, that it is when they are still trying to assert control on this darkened vessel that I get this report. That is the only possible explanation I can give, because I was not there. Senator JACINTA COLLINS-If your report on the timing is accurate, that is right? Brig. Silverstone-If it is, but I spoke to Air Vice Marshal Titheridge just before 0730 and I spoke to Rear Admiral Smith just after 0730 my time, having already spoken to Commander Banks. Senator JACINTA COLLINS-The problem we have at this stage is a lack of information on that point. We have your very strong assertion that the report occurred at 0720-odd. In part this leads to my next question, which is: what corroboration for that phone call do you have? Air Vice Marshal Titheridge, for instance, is very vague. He cannot recall even whether he had a phone call, let alone what time it occurred or what he might have been doing at the time. Even though there was this special arrangement in place for this one-off phone call, Air Vice Marshal Titheridge seems to know nothing about it. So we are relying on your understanding of what time this phone call was meant to have occurred. You have told us earlier today that you did not actually record in your notebook the phone conversation- Brig. Silverstone-Yes. Senator JACINTA COLLINS-but your understanding that it was to be at 0730 was because that is what you were instructed to do by Admiral Smith-is that correct? Brig. Silverstone-That is correct. Senator JACINTA COLLINS-Do you have notes on your discussion with Admiral Smith that say that this phone call was to occur at 0730? Brig. Silverstone-Yes, I do. Senator JACINTA COLLINS-Can we have a copy of those. Brig. Silverstone-Yes, I shall provide that to you. CHAIR-Is that an appropriate place to pause for dinner? CERTAIN MARITIME INCIDENT CMI 420 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-I have just one final question which can be clarified quickly on this point. Brigadier Silverstone, the other point in relation to the phone calls that I need to understand is the practice of NORCOM recording telephone conversations and when that occurs and when it does not occur and, in any of these incidents, did it occur. Brig. Silverstone-We have no capacity to record telephone conversations, in terms of physically recording. Senator JACINTA COLLINS-No capacity. Senator FAULKNER-Some operational command centres do, of course, as you know, Brigadier. Brig. Silverstone-Yes. Senator FAULKNER-It was never clear to me whether that occurred in NORCOM or not. Brig. Silverstone-One of the things about this operation is that previously Northern Command had not been involved in the detailed tactical control of an operation of this type. We are more typically in more operational and lower tempo activities with regard to fishing vessels, and so there has not been a requirement to date. This operation has a whole bunch of new processes required to be put in place including managing these issues. Senator JACINTA COLLINS-Yes. In part one wonders whether, given the discrepancy between the event and the time, the `0730' was a reference to 0730 Titheridge time rather than 0730 your time. Brig. Silverstone-No. The instruction from Admiral Smith was to ring Air Vice Marshal Titheridge at 0800 his time, and I wrote in my book 0730 hours my time. I rang Titheridge before 7.30 and I straightaway rang Rear Admiral Smith having done that to say, `I have spoken to Air Vice Marshal Titheridge and told him these things.' Senator JACINTA COLLINS-So when we speak to Rear Admiral Smith we have got an opportunity for him to indicate his recall of when these calls actually occurred. Brig. Silverstone-Yes. Senator JACINTA COLLINS-The other issue related to the records and the timing of matters is that you say unfortunately the watch keepers had not logged, as they should have, these interactions. Brig. Silverstone-Yes. Senator JACINTA COLLINS-Is there anything that has been logged that gives some corroboration to the timing of events? Brig. Silverstone-With regard to the 0730 conversation? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 421 Senator JACINTA COLLINS-Yes. Brig. Silverstone-No. Senator JACINTA COLLINS-In relation to contacts coming in from Adelaide? Brig. Silverstone-Not that I am aware of. Senator JACINTA COLLINS-For instance, your statement-and we went to this point earlier today-refers to: My telephone call to CO ADELAIDE, on AM 7 Oct, represented an exception to the practice described above. Was that the only phone conversation you had on the morning of the 7th? Brig. Silverstone-No. I had something of the order of eight or nine that day. Senator JACINTA COLLINS-That is why I wondered when I read this that you referred to `my telephone call' in the singular. Brig. Silverstone-On this particular call, it is as I have indicated earlier: I do not as a matter of policy make phone calls to COs when they are in the middle of an event such as a boarding activity. Senator JACINTA COLLINS-I appreciate that. But this commentary here at (b) is under the subheading `Initiating contact with commanding officers'. If you had seven or eight calls that morning with the CO of Adelaide I cannot understand why you would refer solely to one call in that context. Brig. Silverstone-The phone call that was initiated, as far as I am concerned, was the prearranged one for 0720 when the other phone calls were quite likely made, with him ringing me because they are at a particular point in the activity and he was passing a report on to me of that. Senator JACINTA COLLINS-Do we know whether you had a later call about the time of this incident? Brig. Silverstone-I do not have a record of that. The next phone call I received was roughly timed about 1000 hours, I believe, Senator. Senator JACINTA COLLINS-So you dispute Commander Banks's assertion that he took a call from you during the `man overboard' incident on the Adelaide? Brig. Silverstone-Yes. Senator JACINTA COLLINS-That was witnessed by one of his officers. You dispute that phone call occurred? CERTAIN MARITIME INCIDENT CMI 422 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. Senator FAULKNER-Is it likely that over the dinner break you might be able to get any information to the question on notice you took from me? Brig. Silverstone-I can respond to that now, if you like. With regard to the question on notice, the only approach made by any ministerial adviser that we are aware of was by Mr Hampton through the PACC organisation that went to Lieutenant Herring at Maritime Headquarters, who then came to my headquarters with a request for Mr Hampton to directly approach CO Adelaide, at which point I rang Admiral Ritchie and got his guidance on that matter. With regard to other contacts from other ministerial advisers, neither I nor my staff are aware of any. Proceedings suspended from 6.36 p.m. to 8.08 p.m. Senator JACINTA COLLINS-Brigadier, I noticed over the dinner break that we now have-or we should now formally table-further notes of yours in relation to your conversation with Rear Admiral Smith regarding the instruction to ring Air Vice Marshal Titheridge. Can you take us through what that note says. Brig. Silverstone-At the top it says: Treasurer: Boat People, Sunday 0730, L. Titheridge- Senator JACINTA COLLINS-It does not say in what time? Brig. Silverstone-It says 0730 hours. Senator JACINTA COLLINS-In which time? It does not say IK or- Brig. Silverstone-It is my time. He told me to ring him at eight o'clock eastern time. I have written 0730, which is my time. Senator JACINTA COLLINS-In your other references, such as your other log, you have 0720 k. Brig. Silverstone-No, that is an asterisk. Senator JACINTA COLLINS-Fine. Keep going. Brig. Silverstone-Then `L. Titheridge' and two mobile numbers are next. Senator JACINTA COLLINS-And under it? Brig. Silverstone-`Update:' and we go on to talk about a range of issues with regard to advice that the Indonesian crew need to know about the penalties. DIMA had authorised a document to be read out that identified the range of penalties that would be levied on Indonesian crews-and there is a brief summary of it. I just captured some of that. Then I moved on to discussion about whether we had a Bahasa linguist convert to Bahasa. There is the comment: CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 423 Try to comment. Tell them-force them-do it once. Withdraw: BP- which stands for `boarding party', and then there are my drawings, if you like, in terms of the CZ shown and then two boxes moving towards the CZ. I have a third CZ and an arrow turning around and it has something like `if out, take charge' and `0730' written again. It has got `six knots, 3-4' and then it has got `Max Moore-Wilton, no choice: CDF DIR ensure MSN aim deter from coming to'. CHAIR-Let me interrupt at this point and say that these documents have not been tabled formally and I think we have just had a complete reading of this document, other than the actual telephone numbers on it for Air Vice Marshal Titheridge. I do not think that we should necessarily table it, as such, and make public Air Vice Marshal Titheridge's phone number. Senator JACINTA COLLINS-Yes. That's fine. CHAIR-Nor have we tabled the other one. Senator JACINTA COLLINS-Brigadier, the second 0730 here appears to be crossed out. I have a photocopy so I am asking for your guidance. Brig. Silverstone-There is a sort of a slash with a line coming back from it-I do not know what that is. Senator JACINTA COLLINS-You do not know what that means? Brig. Silverstone-No. Senator JACINTA COLLINS-Do you know what the 0730 refers to? Brig. Silverstone-No. Senator JACINTA COLLINS-But you know there was a 0730 that you crossed out. Brig. Silverstone-No, I do not think it is crossed out. There is a line drawn through it and there is a loose line coming off the bottom of the slash. Senator JACINTA COLLINS-Maybe we should circulate your original so we can see what it looks like rather than the photocopy where it certainly does look like a cross-out. Brig. Silverstone-Sure. Senator JACINTA COLLINS-I understand also that you have referred to the `logs in our absence' and in relation to op rep 8- Brig. Silverstone-It is op rep Adelaide 069 Oct sit rep 8- Senator JACINTA COLLINS-Do we have the same document? CERTAIN MARITIME INCIDENT CMI 424 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Paragraph 6 states: Some SUNCs making threats to jump overboard, commit suicide and other veiled threats including gesturing with wooden sticks. One SUNC jumped overboard and was recovered by RHIB. Senator JACINTA COLLINS-This was at what time? Brig. Silverstone-This was prior to 2200 zulu, which is 0730 India-kilo. Senator JACINTA COLLINS-Just on the original source document, can you take me to where the time is indicated on it? Brig. Silverstone-Yes. If you go down five lines from the top of the page there is `I3M'. One line further down there is OP 062200 zulu October 01. Senator JACINTA COLLINS-So 6 October at 2200 hours-at 10 o'clock at night-at the time where the Adelaide is. Is that correct? Brig. Silverstone-No. That is Greenwich Mean Time. So that is at 0730 my time, 0500 where Adelaide is. Senator JACINTA COLLINS-So 0500 where the Adelaide is on 7 October-there is reference to one SUNC jumping overboard. Brig. Silverstone-Yes. Senator JACINTA COLLINS-And to give it no more status at this stage one theory is that, if your time understanding is the correct one, then you had a telephone conversation at 0720 a.m. This is after 0720 a.m. Brig. Silverstone-No. The signal is released at 0730 which means that it is reporting events that have gone on before that and it is reporting events of the boarding party. Senator JACINTA COLLINS-There is reference to one SUNC jumping overboard and being recovered, and you are suggesting that this may relate to a child who might be five, six or seven. Brig. Silverstone-No, I am not suggesting that at all. I am suggesting that there was a range of events happening in the dark and this was at the time that I know that I had this conversation with CO Adelaide. I am just suggesting that there is a range of activities of which we have no detailed knowledge. I was not there so I do not know what happened. Senator JACINTA COLLINS-Whereas the CO Adelaide's clear recollection is that he had a conversation with you at the time of the `several men overboard' incident where he indicated to you that he saw a child on the roof of the wheelhouse. You indicated just before the break that you made no such phone call. Brig. Silverstone-I indicated that I had no recollection of such discussion with him. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 425 Senator JACINTA COLLINS-Does the Inmarsat telephone system keep logs? Brig. Silverstone-Yes, it does. Senator JACINTA COLLINS-What do we know from the logs of the phone system? Brig. Silverstone-That Adelaide made a phone call at 0721 that morning to my watch keeper. Senator JACINTA COLLINS-That could be the call that then carried information to Air Vice Marshal Titheridge? Brig. Silverstone-It could be the call that came to me that then carried information to Air Vice Marshal Titheridge. Senator JACINTA COLLINS-And after 0721? Brig. Silverstone-Apparently, just talking to CO Adelaide, there was a call at 0816 and a range of other calls. He has the records for those. Senator JACINTA COLLINS-What time would it have been on the Adelaide with the 0816? Brig. Silverstone-That is 0546. Senator JACINTA COLLINS-About the time that the first of the several `man overboards' was occurring? Brig. Silverstone-Yes. Senator JACINTA COLLINS-And we do not know who that call went to? Brig. Silverstone-It did not come to me but it may well have come to my J3, my senior ops officer at that time, who may have taken that call and may have had that discussion. Senator JACINTA COLLINS-You cannot tell me, at the moment, about other calls? Brig. Silverstone-No, Senator. I can tell you that there were a number of other calls but I do not have the record. Senator JACINTA COLLINS-Can you undertake to provide that record? Brig. Silverstone-I can do that through a request to the Maritime Commander because he is responsible for Adelaide. I will do that. Senator JACINTA COLLINS-This indicates the calls from Adelaide. CERTAIN MARITIME INCIDENT CMI 426 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. Senator JACINTA COLLINS-Can we also see the calls into Adelaide on this system? Brig. Silverstone-Not that I am aware of. Senator JACINTA COLLINS-It records calls out but not calls in? Brig. Silverstone-Yes. Senator JACINTA COLLINS-Your answer was, `Not that I am aware of.' Could you confirm that for us? Brig. Silverstone-Yes, Senator. Senator JACINTA COLLINS-Do the logs which we were provided with from the Adelaide actually record the material at the times this report refers to? Brig. Silverstone-I do not know. Senator JACINTA COLLINS-This one starts on the 4th. This one starts on 6 October, so that would have. This one also starts on 6 October. I will not take the committee's time with this at the moment. We obviously need to check that in terms of how it relates to the report that you have referred us to about a man overboard who was then collected. Whilst I have looked through these logs once, apart from the later incident there seems to be no reference in the logs to the issue of children. Do you know any different to that? Brig. Silverstone-No, Senator. Senator JACINTA COLLINS-Is there anything further on the timing issue that you believe corroborates your understanding? Brig. Silverstone-I do not understand that I am required to corroborate. Senator JACINTA COLLINS-Pardon? Brig. Silverstone-I do not understand that I am required to corroborate this, Senator. My evidence is that I had that phone call at 0720 and I passed it on to Air Vice Marshal Titheridge. Senator JACINTA COLLINS-Yes, and this committee's task or brief is to try to understand that evidence in context- Brig. Silverstone-Yes. Senator JACINTA COLLINS-and I am asking you from your perspective: is there any other information that you are aware of that confirms your evidence? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 427 Brig. Silverstone-I am aware from discussions that Air Vice Marshal Titheridge made a call at 0805 his time, which is 0735 my time, and- Senator JACINTA COLLINS-Sorry, just slow down a minute: 0805- Brig. Silverstone-His time, which is 0735 my time, I understand to Jane Halton, and I understand that- Senator JACINTA COLLINS-How do you understand that? I have not been able to find that in any of the evidentiary material before the committee. Brig. Silverstone-Because the other day Air Vice Marshal Titheridge passed through here and mentioned that to me. Senator JACINTA COLLINS-Yet he did not choose to mention that in any of his written reports. Brig. Silverstone-He may; I cannot answer that. Senator JACINTA COLLINS-So he may later have checked further, as have several people, to try to ascertain the timing discrepancy here and discovered that he has a record of a phone conversation between himself and Ms Halton at 0735? Brig. Silverstone-I understand from his phone bill there is a call made at that time. Senator JACINTA COLLINS-Okay, fine. Anything else? Brig. Silverstone-And the only other thing is that Rear Admiral Smith has a record, apparently, of a phone call he made at 0732 to Commander Australian Theatre, which would follow my phone call to him, if I made that call at about 0730. Senator JACINTA COLLINS-So Rear Admiral Smith to- Brig. Silverstone-Commander Australian Theatre, Rear Admiral Ritchie. Senator JACINTA COLLINS-Ritchie. It is just easy for us to remember who is who when we know the name rather than the rank or title. So at 0732 Smith possibly followed your conversation with a call to Ritchie relaying much the same information. Brig. Silverstone-You will have to ask Rear Admiral Smith that, Senator. Senator JACINTA COLLINS-Yes, but what you are saying to us now is that you are aware- Brig. Silverstone-Yes. Senator JACINTA COLLINS-of a phone call that occurred at this time. CERTAIN MARITIME INCIDENT CMI 428 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. Senator JACINTA COLLINS-And the source of that knowledge is Rear Admiral Smith himself, is it? Brig. Silverstone-Yes. Senator JACINTA COLLINS-Anything further? Brig. Silverstone-No. Senator JACINTA COLLINS-Obviously we will take up those issues further with Rear Admiral Smith and Air Vice Marshal Titheridge. Let me see if there is anything else relating to the timing issue. Your recollection was that between this 0720 call with the Adelaide your next call was at around 10 o'clock; is that correct? Brig. Silverstone-Yes, Senator. Senator JACINTA COLLINS-What would that have been Adelaide time? Brig. Silverstone-Around 0730. Senator JACINTA COLLINS-So 7.30? Brig. Silverstone-Yes. Senator JACINTA COLLINS-So it was after the several people overboard incident? Brig. Silverstone-Yes. Senator JACINTA COLLINS-Okay. What is your understanding of that conversation? Brig. Silverstone-We had no discussion of people overboard in that conversation, Senator. Senator JACINTA COLLINS-What did that conversation deal with? Brig. Silverstone-It dealt with: `vessel dead in the water, engine sabotaged, hoses cut, pump out of oil, bearings, large amount of smoke, overheating, evacuation, steering compartment, contemplate tow/CZ'. We had a discussion about recommendations. Apparently there is a note here about seaworthiness, with no comment after it. `What is the mood on board? It has been tolerable. It is crowded.' He could not ascertain the number, yet he thought about 200 to 250, I would say from this note. They gave them water and threw it overboard. `One more man overboard. Cut the steering. Engine'- Senator JACINTA COLLINS-Sorry, did you say `one more man overboard'? Brig. Silverstone-Yes. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 429 Senator JACINTA COLLINS-At that time? Brig. Silverstone-At about 1000 hours-this is from this conversation. Senator JACINTA COLLINS-Okay. Brig. Silverstone-These are my notes of our conversation at about 1000 hours, but I did not write the time down. I have drawn this from marrying it up with the range of events described here and matching it against the op reps. Senator JACINTA COLLINS-The SIEV was not yet in tow at that point, was it? Brig. Silverstone-No, not from these notes. Senator JACINTA COLLINS-Okay. But what has been suggested here? Is it one man overboard at around about that time, or is it just a report that it had happened previously? Brig. Silverstone-No, it is suggesting that at about this time, when these events were happening, there was another man overboard. Senator JACINTA COLLINS-Are you aware of anywhere in the logs that actually correlates to that report? Brig. Silverstone-There is Adelaide sit rep 11, which is released at 070030 hours, which is 7.30 in the morning his time. It shows one SUNC jumped overboard, but was recovered with RHIB. Senator JACINTA COLLINS-When you had this conversation with the Adelaide, were you aware of the previous several men overboard incident that is recorded in the logs? Brig. Silverstone-I expect so, yes. I would have read that coming in in the op reps, which came in earlier, and then the subsequent conversations. So, yes, I would have been. Senator JACINTA COLLINS-But your evidence to this committee is that whilst you were aware of the incident you did not actually discuss that particular incident with Commander Banks. Brig. Silverstone-No. Senator JACINTA COLLINS-Is it possible that you had a call, but it is not recorded in your notes, between those two times? Brig. Silverstone-It is possible, but unlikely, in that I appear to have kept pretty comprehensive notes of our discussion throughout the night and that day. I do not recall having the conversation with him about the multiple overboards, but I do recall reading it. CERTAIN MARITIME INCIDENT CMI 430 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-You indicated that you were probably aware of it from reading the previous reports. Brig. Silverstone-Yes. Senator JACINTA COLLINS-One query I have in relation to your evidence in the report is why you would have reported to Air Vice Marshal Titheridge a child thrown overboard, or over the side-to get the words right-when later that day, in your report to COs, you described the situation as, `The deliberate displacement of personnel overboard, including allegations of children in life jackets put over the side.' In this instance you refer to `children', whereas I think it is a fair characterisation of the other statements that you only ever said `child'. Brig. Silverstone-Sure. Senator JACINTA COLLINS-And you are only referring to allegations here whereas the other evidence we have seems to be that the statement was far more unequivocal than that. Brig. Silverstone-I do not recall the circumstances around the thought process that went into the drafting of that document, but it seemed that `children' is the generic subject of `children over the side', as opposed to `a child over the side', so we are talking about risk to children. And, then, allegations-I recall having a discussion with my staff about what had we seen about this and what else we knew about this. Senator JACINTA COLLINS-So the information you conveyed to Air Vice Marshal Titheridge referred to `a child put over the side'? Brig. Silverstone-Yes. Senator JACINTA COLLINS-But you are suggesting perhaps that other information was included for you to make the statement that there were `allegations of children put over the side'? Brig. Silverstone-No. All I am saying is that `children over the side' is just a generic threat to children. We were talking about generic threats and generic activities, as opposed to specifically citing the experience of Adelaide that morning. Senator JACINTA COLLINS-So you are commenting here about actions taken by PIIs thus far, during the SIEV4 incident. They include, to actually quote the report: The deliberate displacement of personnel overboard, including allegations of children in life jackets put over the side. Apart from the singular reference to `child' that you reported up the line-or it was not quite up the line-to Air Vice Marshal Titheridge, what other allegations are being referred to there? Brig. Silverstone-None. Senator JACINTA COLLINS-So one report of `a child put over the side' becomes `allegations of children in life jackets put over the side'? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 431 Brig. Silverstone-Yes. Senator JACINTA COLLINS-You can say that is a generic term, but it seems like a fairly considerable shift from the singular to the plural to me. Brig. Silverstone-That may well be the case, and if that is the case it is inadvertent. Senator JACINTA COLLINS-To clarify the other issue of contention in this, that could explain why Rear Admiral Smith and others thought that the reference was to `children' rather than to `child'? Brig. Silverstone-I think not in the sense that I used my notes, and my conversation with CO Adelaide was immediately followed by those two conversations with Admiral Smith and Air Vice Marshal Titheridge. Senator JACINTA COLLINS-But you used those notes for this report too, didn't you? Brig. Silverstone-No. I have just been handed Adelaide's Inmarsat telephone record, and I have been advised by CO Adelaide that the Inmarsat does not record incoming calls. Senator JACINTA COLLINS-Okay. But we can see the record for outgoing calls? We probably should not necessarily table that at this stage but circulate it to committee members. Going to the note of your recall of the 7.20 telephone conversation-and we covered some of this earlier-if we deal with it in its very original form, it first said, before you amended it immediately after the phone conversation, `men thrown over side 5 6 7', and then immediately after the phone conversation, you have noted on the record: NOTE: `child' added after phone conversation with COADE before discussion with HSC. Is HSC Air Vice Marshal Titheridge? Brig. Silverstone-Yes, that is correct. Senator JACINTA COLLINS-Okay. Last week I asked to have a look at your original of these notes because it was not clear to me that there was something written underneath `child', and that `child' was actually written on top of something. I must say, even after looking at your original notes, that is still not clear. The reason I asked, and in part you alluded to this earlier, is that you said you left space when you recorded the notes. Is that your evidence to the committee, that it was actually space underneath `child', or was there actually something under it? Brig. Silverstone-There might have been a dash showing a space and then on, but there were no words written there. My recollection is that I left space there or room there to come back and add in `child' because I was writing quickly. Senator JACINTA COLLINS-Although what appears to be underneath it is like a middle dash rather than a lower dash which would normally imply something yet to be filled in in notes. CERTAIN MARITIME INCIDENT CMI 432 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-I have no recollection, Senator. Senator JACINTA COLLINS-Senator Ferguson was covering with you earlier the issue relating to the `5 6 7'. If these notes related to the `several people overboard' incident, could the `5 6 7' not refer to how many people there are overboard? Brig. Silverstone-You could read it as that, but that is not the case, Senator. Senator JACINTA COLLINS-Do we know in the earlier `person overboard' incident whether the SIEV at that point in time was actually seven to eight nautical miles south? Brig. Silverstone-The text of that indicates that the vessel here is 15 nautical miles north of Christmas Island, which is nine miles south of the contiguous zone. Bearing in mind that that is taken, I would expect, from a satellite navigation system, and I am talking to the CO at a time before the signal is represented, he could have been giving me an approximation. Senator JACINTA COLLINS-Was the vessel dead in the water at that point? Brig. Silverstone-You would have to ask the CO. I do not know. Senator JACINTA COLLINS-My impression was that the vessel was actually moving when they boarded it. You do not know. Brig. Silverstone-No. Senator JACINTA COLLINS-Okay. Now in your notebook, which I presume you use in a chronological way- Brig. Silverstone-Yes. Senator JACINTA COLLINS-this 7.20 reference is recorded before the next one you referred to. Brig. Silverstone-That is correct. Senator JACINTA COLLINS-It does not need to be done right now, but could we have a copy of that other one that you referred to as well? Brig. Silverstone-Yes, absolutely. Senator JACINTA COLLINS-When you put the note in your notes on 2 December about when it was you added `child', why was that notation made at that point in time? Brig. Silverstone-Because I was preparing a statement for General Powell, and when I looked at my notes I looked at the `child' there and thought, `That looks odd,' and then I recalled that the circumstance was that I added that word after I had finished the conversation with Commander Banks. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 433 Senator JACINTA COLLINS-So your recollection in December was that you had added `child' immediately after the phone conversation back in early October. Brig. Silverstone-Yes. Senator JACINTA COLLINS-And then when you added the time changes into your record, you did not add a notation at that point in time, which is understandable in part because you did not add this other notation until December, and then in March-last week-you put in the notation that you added the times in three to four days after the event. Brig. Silverstone-Yes. Senator JACINTA COLLINS-Why did you add the times in at that point? Brig. Silverstone-I added the time in three to four days after the event because it was becoming apparent that this was a major issue. I directed CO Adelaide that he was to gather information on that. I reviewed my notes. I noticed that I did not have a time there, as it is my practice not to-I was not adding times to all the conversations we had-and I then entered the time based on my recollection of when we had that phone call. Senator JACINTA COLLINS-So this would have been around 10 October; is that right? Brig. Silverstone-Yes, somewhere around then. Senator JACINTA COLLINS-We heard earlier from Commander Banks that around 10 October one of the reasons he was not quite so adamant about his own recall was that he understood that you had quite detailed notes and one of the reasons he has become more adamant is that, through looking at the statements, he has seen that the notes are not quite as detailed as he believed them to be on 10 October. Is that your understanding? Brig. Silverstone-I understand that is his evidence. Senator JACINTA COLLINS-I think you indicated earlier that it is possible to put interpretations on to these notes other than the ones you provided in your statements such as that `5, 6, 7'. Brig. Silverstone-It is possible to interpret it as that, but `5, 6, 7' was the answer in response to my question, `How old is the child?' Senator JACINTA COLLINS-Yes, that is your evidence, there is no doubt about that, but in terms of what you actually wrote here on this page it is possible to build other interpretations than the ones you did in your statement to explain how those notes explain a story. Brig. Silverstone-Mine is not an interpretation, Senator. Senator FERGUSON-He wrote them. CERTAIN MARITIME INCIDENT CMI 434 SENATE-Select Thursday, 4 April 2002 Senator JACINTA COLLINS-I am still interested in following up some other material. In some respects this situation is actually getting murkier rather than getting resolved when we start talking about a potentially earlier incident that was never considered by either Powell or Bryant. Until we look at that earlier incident and see what the logs say-for instance, references to the vessel being dead in the water and some of the other contextual facts-this situation about the timing seems to be even more unresolved rather than clearer. Senator FERGUSON-Only in your mind, Senator Collins. Senator JACINTA COLLINS-What is it in your mind, Senator? Senator FERGUSON-It is quite clear. Senator JACINTA COLLINS-And what do you think is quite clear? Senator FERGUSON-It is quite clear the interpretation that was put on it. CHAIR-Is it? Senator FERGUSON-Can I say, Mr Chair, the only person who can interpret the handwritten notes that have been made is the person who actually wrote them, not somebody else who is reading them. I make a lot of handwritten notes when I have telephone conversations and I will bet nobody else here could interpret them. Senator JACINTA COLLINS-I would be somewhat sceptical of your interpretations two or three months after the event as well. Senator FERGUSON-This was done two minutes after. Senator JACINTA COLLINS-Sorry? Senator FERGUSON-The insertion of the word `child' was done two minutes after, because it was included in the report to Air Vice Marshal Titheridge. Senator JACINTA COLLINS-But the notation and explanation of it was made more than two months after the event and the further change about the timing was made four to five months after the event. CHAIR-This is something you might care to debate in a private meeting. Senator FERGUSON-No. Senator JACINTA COLLINS-Yes, I think so. Senator FERGUSON-That is not so. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 435 Senator JACINTA COLLINS-I want to move on to some of Brigadier Silverstone's explanation as well. Brigadier, your explanation at point 6 of attachment 2 is what appeared to me at the time to be a fairly adamant description of why you interpret the notes the way you do, referring to why you have put past participle `thrown' in a particular way, why the noun `child' is as an object, and you seem to go into a fair amount of grammatical detail to explain the way you have made the notes and expanded the notes in the way you have in your statement. Brig. Silverstone-Yes. Senator JACINTA COLLINS-And yet further on in your statement, when you refer to what you believe to be corroboration of your position from the statement of Wayne Gerrits, the detail seems to disappear at that point and you quote Wayne Gerrits as saying `a child thrown overboard, see enclosure 4'. That is actually not what Wayne Gerrits says. Brig. Silverstone-No, Senator. Senator JACINTA COLLINS-So you are quite detailed about the grammar and how you would have said certain words, fairly confident that you put `child' in the right place in your notes and many of these things, but you then go on to use Wayne Gerrits's corroboration and misquote him. Do you have anything further to say to us about your statement in light of that? Brig. Silverstone-No, I do not, Senator. I have nothing else to say. I cannot offer an explanation as to how that became, but it would have been inadvertent. Senator JACINTA COLLINS-In the context of what you had said earlier about how this issue was developing, your quote says-Wade Gerrits was reported as saying-he saw `a child thrown overboard'. Brig. Silverstone-Yes. But I enclose Gerrits's statement, so I made sure- Senator JACINTA COLLINS-Yes, I know, you put it in quotation marks. Brig. Silverstone-Yes. Senator JACINTA COLLINS-Wade Gerrits never indicated that a child was thrown, but yes, `I believe one child also went overboard'- Brig. Silverstone-`One child also went overboard', yes. Senator JACINTA COLLINS-Not `thrown'. CHAIR-Keep reading. Senator JACINTA COLLINS-And then he also indicates that he understands: All persons who dove overboard did so by their own accord and were all wearing lifejackets. CERTAIN MARITIME INCIDENT CMI 436 SENATE-Select Thursday, 4 April 2002 Quite a different characterisation to the one you use as corroboration of your version of events. You do not have anything to add? Brig. Silverstone-No. Senator JACINTA COLLINS-Rear Admiral Smith has indicated to us his understanding that you referred to children. You told us just a moment ago that you believe Rear Admiral Smith might be able to give the committee further information about the timing of phone calls, which might help us resolve the timing problems. Brig. Silverstone-Yes. Senator JACINTA COLLINS-Is there anything further you understand, in relation to your communications to Rear Admiral Smith, that is not on the record at this stage? Senator FERGUSON-Can I seek clarification? Senator Collins refers to `timing problems'. I am wondering what she means by `timing problems'? Senator JACINTA COLLINS-I am referring to Ms Bryant's reference to the discrepancy in timing. Senator FERGUSON-You did not say that before. You just talked about `timing problems'. Senator JACINTA COLLINS-I am sorry, but at this hour of the day I am summarising what I am saying but, if you want me to refer everything back to Ms Bryant or the appropriate documentation, we can take much longer about it. CHAIR-Proceed. Senator FERGUSON-Please do. Senator JACINTA COLLINS-Brigadier, is there anything further in relation to these events that you are aware of, in terms of your communications to Rear Admiral Smith- Brig. Silverstone-No. Senator JACINTA COLLINS-aside from what you indicated earlier about the timing of calls? Brig. Silverstone-No. Senator JACINTA COLLINS-You also said earlier that you only had one conversation with Air Vice Marshal Titheridge? Brig. Silverstone-Yes. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 437 Senator JACINTA COLLINS-I think the rest of those questions can probably wait until we have the air vice marshal and Rear Admiral Smith. Senator FAULKNER-While we wait for Senator Collins, Brigadier, can you please help me with the acronym on the tabled document. It is `Inmarsat council service details' or whatever, the document you have just tabled for us, on the front page. `Commander NORCOM' is there, but what is the other-`WK'? Brig. Silverstone-`WKPR' is watch keeper. Senator FAULKNER-Yes, it is WKPR. It could be `wicket-keeper'. Senator JACINTA COLLINS-Whilst I am checking this, it might be worth-while filling time-also to check whether anything on this log relates to our earlier discussion that you wanted to bring our attention to, or are you just tabling the document? Brig. Silverstone-The document was passed to me by- Senator JACINTA COLLINS-So you are not, at this stage. Okay. Senator FAULKNER-It comes from Commander Banks, I assume. CHAIR-Are you referring to this document? Senator JACINTA COLLINS-Yes. CHAIR-This is not being tabled. Senator JACINTA COLLINS-No. It has been circulated. CHAIR-Yes. Senator JACINTA COLLINS-Brigadier, one reference in your report at page 3 of attachment 2 is an email communication. You conclude the first paragraph there with the statement: ... there had persisted a perception amongst some that this [a child overboard] had happened. Who were the `some' you were referring to there? Is that some on the Adelaide or some on the joint task force? Brig. Silverstone-It is some on the Adelaide. Senator JACINTA COLLINS-How were you aware of that? Brig. Silverstone-That was from the discussion with CO Adelaide that I had on the morning of Wednesday, the 11th when he said he was still looking for someone on the other CERTAIN MARITIME INCIDENT CMI 438 SENATE-Select Thursday, 4 April 2002 side-on the far side or the disengaged side-of the SIEV who may have seen something and also from referring to Gerrits's statement. Senator FAULKNER-As I understand it, Brigadier, you became commander of joint task force 639 on 22 September last year. Brig. Silverstone-That is correct. Senator FAULKNER-I appreciate the task force is part of Operation Relex. That is a fair description, is it not? Did task force 639 exist before then? Brig. Silverstone-Yes, it did. Senator FAULKNER-Who was the commander before you? Brig. Silverstone-Commodore Stapleton, Commodore Flotillas. Senator FAULKNER-I thought that was right. One thing that I am not clear on-and I did ask a brief question in estimates and I am going to go back very briefly to this matter with you so I can understand it-is in relation to some naval ships under your operational command. You gave us a short time ago a list of approximately half a dozen ships that were in that category. All operational orders effectively come from you, as the commander of the joint task force. Is that effectively what occurs? Brig. Silverstone-Those vessels are under my operational control and, yes, the orders come from me. Senator FAULKNER-There are other lines of command. You stress operational command. There are other naval commands, I suppose. Brig. Silverstone-Operational control is the technical term for that level I was exercising. Senator FAULKNER-Yes, thank you for that. Members of other services might be on board a ship. For example, it was not unknown to have a significant number of Army troops on some individual ships in Operational Relex. That is true, isn't it? Brig. Silverstone-That is correct. Senator FAULKNER-What I still do not understand-if you could very briefly explain to me-is whether they are also under your operational control or not. Brig. Silverstone-Yes, they are, but the operational control of them is also delegated to the COs of the ships on which they are on. Senator FAULKNER-So in this case did that operating procedure apply? Was that well in place before you became commander of joint task force 639? You inherited those arrangements or procedures for operational control? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 439 Brig. Silverstone-Yes. Senator FAULKNER-Do you know when they were put in place? Brig. Silverstone-I imagine at the start of the operation. Senator FAULKNER-Do you know when the operation started? Brig. Silverstone-From recall, 7 September, or so-I would have to check that. Do you want me to confirm that for you? Senator FAULKNER-I have heard that date. I just accept it; I do not think there is any need to confirm it. What about naval operations-and this might be better directed to Admiral Smith, and you may point me in that direction and I would accept that-pre Relex in the same vicinity? I know Warramunga, for example, was intercepting the Aceng on Ashmore Reef, I think, in late August. Was that a differently named operation at that stage? Brig. Silverstone-No, that is Relex. Senator FAULKNER-How does that fit with that date of the commencement of Relex that you- Brig. Silverstone-Relex occurs and Warramunga intercepts 01 on 7 September, by my record here. Senator FAULKNER-Is that the starting point for Relex then? Brig. Silverstone-Maritime Commander Admiral Smith will be in shortly- Senator FAULKNER-If you say to me that this is better directed to him- Brig. Silverstone-Yes, this is better directed to him. Senator FAULKNER-There are some brief questions. I am just trying to get an understanding of this to assist me, because I frankly have not understood this. On one other issue-and again you may direct me to Admiral Smith, and I am happy if that is the case- Admiral Barrie CDF has given evidence before about the letter from the Prime Minister to the Manoora. Are you aware of this issue? Brig. Silverstone-No, I am not. Senator FAULKNER-It is best directed to Admiral Smith then? Brig. Silverstone-Yes. CERTAIN MARITIME INCIDENT CMI 440 SENATE-Select Thursday, 4 April 2002 Senator FAULKNER-I will not waste time if that is the situation. Very briefly, on the other matters that we are discussing-children overboard and related incidents-were you ever at any stage given specific orders or instructions not to publicly discuss that incident? Brig. Silverstone-Other than the specific instruction that all- Senator FAULKNER-Yes, that is right-other than the general instruction that I appreciate is an obligation placed on you and other Defence personnel. Brig. Silverstone-That is the only direction. Senator FAULKNER-I just want to go back very briefly to this issue that we canvassed before the dinner break of bypassing the chain of command. Can I take you to where you address this in paragraph 10(a) on page 2 of your statement-on bypassing the chain of command. I think I mentioned paragraphs 10(b) and 10(c) to you before. You express some concern, I think it is fair to say, in that paragraph that Admiral Smith and CSO Ops-I am not entirely sure who that is; who was that at the time? Brig. Silverstone-Captain Thomson. Senator FAULKNER-You express some concern that Admiral Smith and his staff at Maritime Headquarters and Captain Thomson and his staff are in frequent telephone contact with HMAS Adelaide. On my brief perusal of this document that you have passed through from Commander Banks, it seems that there is at least some traffic going from Adelaide to those destinations. You make the point that this is complicating the chain of command and confusing communications. Do you stand by those comments? Brig. Silverstone-Yes, I was not aware of the number of phone calls occurring, but I became aware that these calls were occurring and I made the point to the admiral that this was inappropriate. Senator FAULKNER-It was of sufficient concern for you, then, to take it up with Admiral Smith? Brig. Silverstone-Yes. Senator FAULKNER-You have indicated in your statement that he informed you that, while he reserved the right to speak to the commanding officers of his ships, he directed his staff to cease bypassing your-Brigadier Silverstone's-chain of command. Are you satisfied that that occurred? Brig. Silverstone-Yes. Senator FAULKNER-Were you able to get to the bottom of why this had occurred prior to your raising it directly with Admiral Smith? Brig. Silverstone-Other than having a view about it, no, I did not investigate it in detail. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 441 Senator FAULKNER-How does it manifests itself? How does it come to your attention? How does your awareness of the complication of the chain of command grow and lead you to that level of concern? Brig. Silverstone-Members of my staff mentioned that they were aware that this was happening. At times, during my conversations back to maritime headquarters, there was an indication that they had to talked to CO Adelaide and I made the point that I thought that this was poor practice, confused communications and should cease. Senator FAULKNER-Beyond the fact that this was during the conduct of operations on SIEV4, are you able to be more specific about the time frame when this was taking place? Brig. Silverstone-No, I am not. I became aware of this issue some time during this period of SIEV4 and, in the aftermath of that, I took the issue up with the Maritime Commander. Senator FAULKNER-I might progress those issues with Admiral Smith, because I do not want to waste too much of the committee's time if it is better dealt with there. Senator JACINTA COLLINS-I might go back, Brigadier, to the Inmarsat log. Regarding times, the column here refers to UTC. What is that? Brig. Silverstone-That is universal time. That is the same as zulu-Greenwich Mean Time. Senator JACINTA COLLINS-Which is which of the relevant time frames we are looking at? Brig. Silverstone-That is the zulu time frame, so Golf, which is the time frame for Adelaide, is seven hours plus of the time shown here. My times, India-kilo, are 9½ hours plus of the time shown in that column. Senator JACINTA COLLINS-So I have to add seven hours to all these references to convert it to the Adelaide? Brig. Silverstone-Yes. Senator JACINTA COLLINS-Okay, we need then to look at the 6 October references. `1846' is one, which would relate to what time? Brig. Silverstone-0416 India-kilo, which is 0146G. Senator JACINTA COLLINS-I think if we look over on the right we have got I-K, which is which time? Brig. Silverstone-It is Darwin. Senator JACINTA COLLINS-That is Darwin time? CERTAIN MARITIME INCIDENT CMI 442 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-Yes. Senator JACINTA COLLINS-So this was your time you were operating on. I understand that now. I have had the opportunity to have a quick look back at the ship's logs in relation to that first man-overboard incident. If we refer to the Adelaide boarding log, for example, at 4.55-that was the time that would be relevant, I think; you indicated it would have been about 5.05- Brig. Silverstone-0450. Senator JACINTA COLLINS-That would relate to the 7.30 time in the op report. Brig. Silverstone-It would relate to the 7.20 time-yes. Senator JACINTA COLLINS-`Night crew jumped overboard'. The statement in the boarding log-the log that was being recorded at the time, associated with the actual boarding of the SIEV-says: Night crew-jumped O/B. 3 members of crew remaining on board. That appears to be the overboard reference there. Later on you have a reference to- Brig. Silverstone-This is not my reference. Senator JACINTA COLLINS-The timing is wrong, is it? Brig. Silverstone-No. You said, `Later on you have a reference to'. I have no reference. I have not seen that log. Senator JACINTA COLLINS-I am not referring to you; I am saying `we'-generally, there is a reference-excuse my shorthand. There is a reference. Further down the page, at 5.06: SUNC jumped O/B-1. Then later on, at 5.10: Do not believe that a SUNC entered H2O. Later that hour we get to the multiple overboard incident-several people overboard-but there is no reference to anything associated with a child. We are yet to track down whether the SIEV was stationary at the time-if that correlates with your notes. I do not have anything further, Chair. CHAIR-If we can, I would like to bring this to a conclusion. Please proceed. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 443 Senator FERGUSON-Senator Collins just read from the ship's log. Brigadier Silverstone, you rely entirely on your telephone conversation for the information that was relayed to you by Commander Banks, not the logs and other material that Senator Collins has been reading out to you. Is that correct? Brig. Silverstone-That is correct, Senator. Senator FERGUSON-Can you confirm once again that you have a very clear recollection and notes of that conversation, regardless of what is supplied in logs at some subsequent time? Brig. Silverstone-Yes, Senator. Senator FERGUSON-You used that conversation as the basis of your report to Air Vice Marshal Titheridge-that is, the conversation you had at 7.20 when you were provided with that information-and you also recorded that conversation with notes. Brig. Silverstone-That is correct, Senator. Senator FERGUSON-So much of the information that Senator Collins has been putting to you is information that was in somebody else's hands, not yours, when you passed the information on to Air Vice Marshal Titheridge? Brig. Silverstone-That is correct, Senator. Senator FERGUSON-I do not have any further questions. CHAIR-As soon as you became aware that the story that children had been thrown overboard was not true, you sought to correct it. Brig. Silverstone-Yes, Senator. CHAIR-Within the chain of command. Brig. Silverstone-Yes, Senator. CHAIR-So, whether we believe, for example, Commander Banks's version or whether we believe your version of what happened, we know from what you have said that you reported your version and, as soon as you learnt it was wrong, you sought to correct it? Brig. Silverstone-Yes, Senator. CHAIR-Were you in any way surprised that the correction was not made by the various public spokesmen for the government? Senator FERGUSON-The government? CHAIR-The government-yes. CERTAIN MARITIME INCIDENT CMI 444 SENATE-Select Thursday, 4 April 2002 Senator FERGUSON-By the naval officers, perhaps. CHAIR-Are you asking the naval officers to correct the Prime Minister? Senator FERGUSON-No-down the chain of command. CHAIR-Were you in any way surprised that the correction was not made, since you moved so promptly to correct the record? Brig. Silverstone-I noted that it was not made. I was aware that no active step was taken to correct it. CHAIR-Did you do anything about that yourself, other than note it? Brig. Silverstone-No. CHAIR-You are aware of the order on 8 August about public comment-the order I have referred to a couple of times during these hearings? Brig. Silverstone-Yes. CHAIR-Was that a factor in causing you not to say anything publicly? Brig. Silverstone-No. The factor is that I work within a chain of command and I am required to perform within that chain of command. CHAIR-As far as you are concerned, you moved as swiftly as was reasonable, once you became aware that the information that had been passed on by you was not right, to correct it. Brig. Silverstone-Absolutely, Senator. CHAIR-Would you normally have expected it then to have been corrected? Brig. Silverstone-That is a matter for government to judge. CHAIR-It is not a matter for the defence forces? Brig. Silverstone-It is a matter for the defence forces to provide the advice and then for the government to decide- CHAIR-You are aware, though, that government spokesmen have said, `We weren't advised by Defence'? Brig. Silverstone-You would have to be more specific about that. CHAIR-The Prime Minister has said that he was not advised by the defence department. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 445 Brig. Silverstone-Yes. I know that I informed my chain of command and thus met my requirements with regard to that. CHAIR-Did ONA contact you at any stage? Brig. Silverstone-I have had a discussion with ONA in the last month or so, Senator, but not before. CHAIR-So ONA never sought from you any information about this incident, directly? Brig. Silverstone-Not in the months surrounding it, no. Senator FAULKNER-Did your subsequent discussion with ONA go to this incident? Brig. Silverstone-Yes, it did. Senator FAULKNER-Who did you have that discussion with? Brig. Silverstone-I would have to check my notes. His name has slipped my mind at the present time. Senator FAULKNER-Was it Mr Jones? Brig. Silverstone-No, it was not Mr Jones. It was a senior officer working for him. Senator FAULKNER-I am always careful not to trample into inappropriate areas, and no doubt you will let me know if I do; but, in the broad, could you explain the nature of that contact and its relevance to the SIEV4 incident? Brig. Silverstone-This discussion, in which I was asked what happened, occurred about a month ago. I explained to them what happened from my perspective, that what became apparent was a misreport, and we moved to correct that. Senator FAULKNER-Was this done in a formal sense? Was the officer involved in some analysis work? Brig. Silverstone-I went to see him about intelligence support for this operation and in the course of our conversation this issue arose. He sought clarification of what happened at our level so he could be better informed about the process, I presumed. Senator FAULKNER-Would you describe this as an informal discussion around the issue? Brig. Silverstone-Yes. Senator FAULKNER-You did not see it as a formal communication with ONA on the substantive issue? CERTAIN MARITIME INCIDENT CMI 446 SENATE-Select Thursday, 4 April 2002 Brig. Silverstone-It was an informal discussion with me offering an explanation as to what I understood had happened, and the events surrounding that, at that time. Senator FAULKNER-Did you think to ask ONA for an explanation of their behaviour- which would have been perfectly reasonable for you to do? Brig. Silverstone-No, I did not. Senator FAULKNER-Next time maybe you will. CHAIR-Let us hope there is not a next time. Senator JACINTA COLLINS-Is there anything in NORCOM records that can clarify for us who received the two phone calls between the 7.20 call and the 10.30 one? Brig. Silverstone-No, there is not. Senator JACINTA COLLINS-There is no means to? Brig. Silverstone-The personnel who were involved in receiving these phone calls at that time are long gone and have been replaced numerous times by other people. Senator JACINTA COLLINS-And, as you indicated, it had not been logged. Brig. Silverstone-To the best of my knowledge, it has not been logged. CHAIR-There are no further questions of the committee to Brigadier Silverstone. Thank you, Brigadier. Once again, I apologise for pushing you back. I hope you understand, but I will not hold it against you if you do not. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 447 [9.15 p.m.] SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence CHAIR-Rear Admiral Smith, welcome to the hearing. I understand you have been waiting patiently over a long time, and I do apologise to you for that. Do you wish to make an opening statement? Rear Adm. Smith-If I may, Senator. CHAIR-Please proceed. Rear Adm. Smith-Thank you. CHAIR-If it is in writing and-let me be careful here-if you have no annexures that are not part of your statement and if you have no objection, would you be kind enough to make it available at some point to the secretary so that it can be copied? Rear Adm. Smith-I have a spare copy here to give to the secretary. CHAIR-Thank you very much. Rear Adm. Smith-And there are no annotations to it. I am the Maritime Commander of Australia, a position that I have been appointed to since 12 July 2000. My primary responsibilities are twofold. I am directly responsible to the Chief of Navy, Vice Admiral Shackleton, for the raising, training and sustaining of Her Majesty's Australian fleet and to the Commander Australian Theatre, Rear Admiral Ritchie, for the conduct of operations involving maritime forces. In this latter capacity, as the Naval Component Commander of Headquarters Australian Theatre, I am the senior adviser to the Commander Australian Theatre on maritime operational matters. It was in my capacity as the naval component commander that I was delegated command of Operation Relex, the Australian Defence Force operation in support of the government's revised border protection policy. My mission was to deter unauthorised boat arrivals from entering Australian territorial waters. In the execution of this mission under Operation Relex, I was directed through the chain of command that it was an imperative that CDF and the government were rapidly and accurately updated on events as they occurred. I was instructed that this was to occur to maximise time available for consideration and policy decision making at the national strategic level. To meet this requirement, CDF implemented special reporting arrangements for Operation Relex. COMAST, as the senior operational commander and the interface with the strategic level of military command, was directed to pass information by the quickest means available to Australian Defence Headquarters. COMAST in turn directed me to advise him by commander-to-commander telephone calls when significant SIEV events occurred. CERTAIN MARITIME INCIDENT CMI 448 SENATE-Select Thursday, 4 April 2002 Prior to implementation of this revised border protection policy, the longstanding role of the Navy was to support Coastwatch and client agencies with the interception, boarding and escorting of suspected illegal entry vessels, SIEVs, or the transportation of their occupants, the unauthorised arrivals, to an Australian port for reception and processing by the concerned government departments. This role was undertaken almost exclusively by the patrol boat force operating within Australia's maritime zones. With the prospect of being taken to Australia for processing, unauthorised arrivals were invariably cooperative and compliant, with Navy boarding parties able to operate in a relatively benign environment. Operation Relex required the establishment of an enhanced and continuous presence and response capability by the Australian Defence Force deep offshore to in effect establish a barrier between Christmas Island and Ashmore Island. Larger and more capable surface combatant vessels were therefore required in order to effectively intercept, warn and, if necessary, board in an attempt to turn away the SIEVs to a position just outside the Australian contiguous zone. Amendments to the Migration Act in late September permitted actions to turn away SIEVs and return them under Navy escort to the close proximity of Indonesian territorial waters. Amphibious vessels were also tasked to transport some unauthorised arrivals to a Pacific Islands country for processing. Actions taken following boarding in each case were specifically directed by government. As a consequence of Australia's revised stance against unauthorised boat arrivals, the operational environment for naval forces involved in border protection operations changed significantly. It was assessed that the people smugglers' and the unauthorised arrivals' most likely and most dangerous course of action to overcome the revised stance was to ignore attempts to be turned away and if necessary provoke a safety of life at sea-SOLAS-incident, thereby obliging the Navy to render assistance to inherently unseaworthy or deliberately sabotaged vessels. International law imposes positive obligations upon mariners to render assistance to those in danger of being lost at sea. Australian Navy commanders understand such obligations to render assistance in circumstances where that can be done without seriously endangering ship or crew. Ensuring the safety and preservation of life at sea is a fundamental mariner's skill and for which all units deployed for Operation Relex were well trained. My orders and instructions stressed the overarching requirement for commanding officers of RAN ships to take every reasonable means to achieve the mission without needlessly risking the safety and wellbeing of their ships' companies, their vessels and the lives of the unauthorised arrivals on board the SIEVs. Not unexpectedly, the Navy encountered displays of non-compliance and belligerence by unauthorised arrivals when their apparent aim of being taken to Australia was frustrated by the Navy's intervention. Numerous instances of threatened or actual violent actions against Australian Defence Force personnel occurred, as well as various acts of threatened or actual self harm and the inciting of violence throughout Operation Relex. Australian Defence Force personnel had not previously encountered these circumstances during non-warlike operations. They were extremely hazardous and volatile situations. What was a law enforcement activity had real potential to rapidly escalate into a violent situation or just as quickly deteriorate into a major safety or preservation of life situation or, worse, both. Although the mission was fundamentally to deter SIEVs from entering Australian territorial waters, the provision of humanitarian and medical assistance was also a major planning CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 449 consideration for Operation Relex. It was anticipated that many unauthorised arrivals would be at risk of or suffering from a variety of illnesses, ailments and diseases. The provision of humanitarian and medical assistance was also deemed a potential means of de-escalating potentially violent situations and overcoming non-compliance and belligerence through the development of trust. Standard practice throughout the operation was to provide a safe, clean and secure environment, sufficient food, water, personal items, bedding and shelter and, where possible, alleviate the cramped and overcrowded conditions that prevailed. Deployed medical and dental staff provided a range of ongoing health services during Operation Relex, including emergency assessments, treatment, health screening and clinics during the boarding, containment and transportation operations. For example, during transportation of unauthorised arrivals on board Manoora and Tobruk the ships' companies went to great lengths, despite the difficult and trying circumstances, to provide fresh clothing and laundering services, toiletries, toys, videos and games, and to prepare halal meals and national dishes. Saltwater showers were rigged along with squatting stands in toilets to accommodate cultural differences. Whenever the ship's program allowed, exercise periods on the upper decks were scheduled. ADF personnel maintained their disciplined yet humane composure and attitude towards the unauthorised arrivals throughout the operation. In closing, Operation Relex was a demanding operation conducted in operationally difficult circumstances during an extended period of abnormally high operations and personnel tempo for the ADF and the RAN in particular. I can only re-emphasise the valuable contribution made by the maritime command sailors and officers, the Army medical and transit security elements, the airmen undertaking surveillance duties and supporting Australian Customs and Coastwatch personnel for their commitment to the tasking. It is a credit to all those personnel involved that injuries were kept to an absolute minimum and that the Navy has played its part in protecting Australia's national interests while meeting its obligations in ensuring the safety of life at sea. This statement is provided to you, ladies and gentlemen, to place the operational issues surrounding this maritime incident, the subject of the Senate inquiry, into context. I look forward now to assisting the select committee in any way that I can. CHAIR-I understand there has been some consultation up this end of the room and you, Senator Bartlett, have agreed to draw the short straw. Senator BARTLETT-The short straw for me or the short straw for everyone that has got to listen to me? CHAIR-It is the late-night shift-put it that way. Senator BARTLETT-The graveyard. Thank you for that statement and for waiting on us patiently-or I presume patiently-all day. We have had a range of documents before the committee that continue to appear and some of them I wish to refer to, and I am sure others in the course of later questioning will wish to also. I want to make sure that you are aware of them first and to make sure of what you have access to before I start delving into them. One is what has now become known as the `Titheridge minute', which details various incidents. There are further documents, an information package, provided with further statements backing up those-it is reasonably thick. There is a third, very thin, one which has just arrived tonight, with CERTAIN MARITIME INCIDENT CMI 450 SENATE-Select Thursday, 4 April 2002 very brief excerpts from signals from the Arunta in relation to those. Are you aware of that third document? Rear Adm. Smith-Yes, I am. Senator BARTLETT-So you have had a copy of that or can refer to it if need be. Rear Adm. Smith-Yes. Senator BARTLETT-Having said that, I will not refer to that straightaway. I just wanted to clarify that up front. You have been involved in Operation Relex since its commencement? Rear Adm. Smith-That is correct. Senator BARTLETT-Were you involved in the drawing up, if you like, of the structure of the operation, of the new rules of engagement, the mission statement and those sorts of things? Rear Adm. Smith-The mission was provided to me but the detail that sat behind the mission and the way that we went about the initial stages of the operation were developed within my headquarters. Senator BARTLETT-When you say the mission is provided to you, what form does that take and who does it come from? Is it a succinct, brief thing or is it a larger document? Rear Adm. Smith-Our process is that the CDF would produce a warning order to the theatre commander, Rear Admiral Ritchie. Rear Admiral Ritchie in turn would produce a warning order to whichever lead headquarters he wished to conduct the planning for that particular operation. In the case of Relex that was passed to maritime headquarters. So the direction came from the CDF. Senator BARTLETT-What is the form of that direction? Rear Adm. Smith-It is an official Defence signal. Senator BARTLETT-Is that classified? Is that able to be viewed? Rear Adm. Smith-They are classified but, as I understand it, most of the signals or the messages associated with Operation Relex have now been declassified. However, at this point I do not think these particular ones have been released to the committee, and I would need to have those put through the process. Senator BARTLETT-If you could. I would be interested in the original message that outlined the mission. Rear Adm. Smith-I am happy to read that to you if you wish. Senator BARTLETT-That would be good, thank you. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 451 Rear Adm. Smith-The CDF warning order was produced in late August. It specified that the ADF was to `provide a maritime patrol and response option to detect, intercept and warn vessels carrying unauthorised arrivals for the purpose of deterring SIEVs from entering Australian territorial waters'. It went on to task COMAST to do some things. In this particular case he was told to prepare a concept of operations for this particular operation. Senator BARTLETT-COMAST is Rear Admiral Ritchie? Rear Adm. Smith-Yes, the theatre commander Rear Admiral Ritchie. Then there is a whole bunch of detail there about the things that he must take into account in doing that. That signal was sent from the CDF in late August and then in turn Rear Admiral Ritchie produced an order to me to conduct that planning, and that is what we did in late August, early September. Senator BARTLETT-If that signal is able to be provided, it would be handy. I would let you follow that up. Is there a formal start date when operation Relex was under way? Rear Adm. Smith-The warning order I referred to is followed by a CDF execute order. The execute order for Operation Relex had a start time of midnight on 3 September. Senator BARTLETT-So it is from that time onwards that the numbering sequence of the SIEVs, 1, 2, 3 et cetera, commences? Rear Adm. Smith-That is correct. Senator BARTLETT-Is there a record or details we can access of each of those SIEV incidents, in terms of the nature of the intercepts, in particular the length of time there was engagement, the nature of engagement and the number of people that were on each vessel? Rear Adm. Smith-I have summaries of all of those SIEVs. The documents that sit behind those summaries total some 1,500 to 1,700 messages. I am sure you would not want all of those. Senator BARTLETT-I think we have got enough paper. My understanding of some of them-and I know more about some than others-is that they can be extended over quite a long period of time and with a range of escalations and then calms and that type of thing. But are summaries of each of the incidents, and also the final outcomes in each case, readily available? Rear Adm. Smith-I have prepared working documents for myself for this appearance, which do exactly as you have asked. Senator BARTLETT-Are you able to make those available to us? Rear Adm. Smith-I certainly have them available here. I have not got copies of them. It would take us some time to pull them out and produce copies, but we could do that. Senator BARTLETT-I know there will be questioning. We have further information that has been provided to us about some specific incidents, in isolation of the broader SIEV engagement. I would certainly find it helpful to have the whole picture and the context. I do not CERTAIN MARITIME INCIDENT CMI 452 SENATE-Select Thursday, 4 April 2002 need it straightaway. I am sure it would not be a great surprise to you to suggest you would be back in the morning. I do not know if it is possible for some assistant to see if some summarised version of that can be provided. I am not looking for hundreds of pages. You could probably get all the information on a single page. If you could take that on board I would appreciate that. Rear Adm. Smith-Yes, certainly. Senator BARTLETT-I may be wrong but it seems like the SIEV4 incident was the first major test of the new rules of engagement that were developed. Is that correct? Rear Adm. Smith-No, not at all. In fact there were three before SIEV4. They each have some uniqueness about them. Really from the very beginning of this change of policy we began to encounter similar sorts of things to what you have been exploring over the last few days. Senator BARTLETT-You mentioned training as being one of your responsibilities. What extra training has been required for Navy, and other personnel for that matter, with Operation Relex? Could you just outline that. Rear Adm. Smith-We prepare all ships for basic boarding operations. When Relex was commenced, the ships that were initially committed to Operation Relex were in fact in South- East Asia participating in a number of activities in that area. They were brought back and thrown straight into the patrol line. We were expecting that there could be activity that would not be the sorts of things that our boarding parties would be used to encountering, so we developed quickly a training package. A number of members of what we call our `sea training group', which is a group that works for me that does all our operational training, were deployed to the ships where they were in theatre. They conducted training on the spot to try to prepare the boarding parties for what could eventuate out of this particular activity. We have been able to do subsequent rotations of vessels into Operation Relex in a more considered way and have prepared them before they have deployed by providing them appropriate training. Senator BARTLETT-Has that required extra costs on the part of Navy to develop those changed training or extra training requirements? Rear Adm. Smith-Not particularly because, at the same time as we were doing this, we were also preparing ships for deployment to the Persian Gulf, which required the same type of preparatory training as that for the boarding parties. So this did not attract any additional expense. Senator FAULKNER-Just on this, Admiral-if you do not mind me interrupting, Senator Bartlett-the training of non-naval personnel-I appreciate that it may not necessarily be your direct responsibility-obviously has an interface with naval training as well? Rear Adm. Smith-When you say `non-naval', do you mean Army? Senator FAULKNER-I mean the other two services, and I assume it is almost exclusively Army, but that is an assumption that I just did not want to make. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 453 Rear Adm. Smith-There was certainly preparatory training for the attachment of the Army people into the ships. At the beginning of Relex there were no Army people embarked in the ships. All the boardings were done, as they continued to be done, by naval people. It was only as we got into the operation that we identified a need for the Army presence, and the land commander, General Abigail, prepared through his organisation those people to be embarked in the ships. I am not aware if there was an additional cost for him to do that, but there was certainly training for the Army people. From the Air Force perspective, they have not participated on board the ships in the way that the Navy and Army have. Senator FAULKNER-Given the circumstances, we might be best to place some questions on notice specifically for Army. That might be the easiest way to deal with them, because we all understand that you might not be in a perfect position to be able to answer any detailed questions. Rear Adm. Smith-Certainly. Senator BARTLETT-Just in terms of the extra requirements under the whole of Operation Relex, you mentioned in your opening statement the other part of the role that probably has not got so much attention-everyone has focused on the blockade-and that is providing health assistance. Has that required different staffing of vessels-for example, extra health professionals? Do you have people on board who are trained in counselling or dealing with tortured and trauma survivors and that sort of thing? Rear Adm. Smith-We were very much aware in our planning that there was a potential of a humanitarian dimension to this whole operation and that it would be important to have embarked in the ships participating medical staff to be able to support the unauthorised arrivals. We in fact took measures to ensure that each ship that was involved in the operation had a medical officer and in some cases some additional medical staff to support them. We sourced those people from the naval reserve largely. Reserve doctors came in and were deployed. There were additional people put into the ships for this particular aspect. Senator BARTLETT-Did that include people specifically in that area of counselling or mental health? Did that include torture and trauma or psychiatric professionals? Rear Adm. Smith-Not directly. Certainly, some of the medical practitioners that were there had some of those skills, but our priority was to provide first aid, essential medical support to people, rather than those other psychological aspects that you are referring to. Having said that, there were some people that we did pull from the reserve who had those particular skills, but it was not those skills that we were sourcing in the first instance. Senator BARTLETT-Does calling up people from the reserves generate extra costs? Rear Adm. Smith-They are in the reserve and they are available, in the naval sense, to be called up. We call for volunteers, actually; it is not a call-up. These people come forward and this counts as their reserve time. They are paid as we would normally pay them, as reserve officers or sailors. CERTAIN MARITIME INCIDENT CMI 454 SENATE-Select Thursday, 4 April 2002 Senator BARTLETT-In the accounts we have read of at least some of the SIEV incidents and the role of boarding parties in particular, which obviously are a fairly key point of engagement, there seems to be a constant thread-at least through the ones that we have been provided details of so far-of usually very tightly packed, if not overcrowded, boats and stressed-out people who have probably been on the water for some time already. As you have noted in your opening statement, given the new forcible type of engagement-which I presume people on board would be aware of; they certainly start to be aware of it once they get boarded-you potentially have a very volatile situation. It seems to me to be a situation that would require extremely good negotiating skills, particularly when you are outnumbered 20 to one or whatever and those sorts of things. Do people get special training in how to handle those sorts of situations? Do you specifically select boarding party officers who have those skills? Rear Adm. Smith-That was one of our considerations early in the piece. The extra training that I referred to for people that were sent into theatre was actually dealing with that very issue-how to deal with large numbers of people and keep it under control. It was a situation that could very quickly escalate into an out-of-control situation, so we put a lot of effort into preparing the boarding parties for that. We also made sure that the boarding officers were experienced officers. In fact, in many of the cases the executive officer, the second in command, of the ship concerned-the Arunta, the Warramunga or whatever-was in fact the boarding officer, so we were ensuring that we had very experienced people controlling the boarding operation as it was being conducted. We found out very early in the piece that that was a very wise move because of the pressures that were placed upon the boarding parties when they were on board. Senator BARTLETT-Obviously I want to visit some of the SIEV incidents in a bit more detail, which we will probably need to leave until tomorrow. Firstly, with regard to the 12 SIEV incidents, I would like to confirm my instinctive assumption that, since the start of Operation Relex, 12 different vessels have been intercepted and none since? Rear Adm. Smith-Yes. Senator BARTLETT-Is it just two that ended up sinking-SIEV4 and SIEV10? Rear Adm. Smith-There were only two; that is correct, Senator. Senator BARTLETT-Could I get a clearer idea on something, although I realise that there might be some operational issues involved that you cannot reveal. We have heard a number of times-and we saw this in looking at, for example, the detail in SIEV4-that obviously the vessel at some point is made aware that a SIEV is on its way and the vessel is directed to intercept it or monitor it. Who is that information provided to and where does it come from? Does it come from intelligence in Indonesia or from other observational methods-satellites or whatever? Who is it communicated to? Rear Adm. Smith-There is intelligence that sits behind each of these activities, and I am not really at liberty to be able to share that information at this time. Senator BARTLETT-Sure. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 455 Rear Adm. Smith-On the basis of some of that information, we were able to make some assessments on windows when these vessels might appear. We then were able to adjust our patrols and so forth to make those intercepts. Senator BARTLETT-So normally you would be confident that you have a fair chance of knowing, of being told, of finding out, when a SIEV of significant size was departing, where from and that sort of thing? Rear Adm. Smith-It would be very foolish of me to say that we knew every time that these things were going to happen. We planned on not knowing, and indeed the whole surveillance effort between Christmas Island and Ashmore Island involved not only ships but also aircraft- RAAF P3s and also the Coastwatch aircraft. We had a patrol arrangement in place, and we were relying upon a whole series of activities to give us the information that we needed. Senator BARTLETT-So, out of the 12 SIEVs, there were not any surprises; you had a fair warning with all of them that they were appearing? Rear Adm. Smith-We certainly had some information that boats might be being prepared in different parts of the archipelago. The first time that we found one of the SIEVs-I will have to check which number it was-was when it ran aground on Ashmore Reef. But, apart from that, we pretty much knew where things were going. Senator, I may have misled you, and I would like to correct that. You asked me whether there were only two SIEVs that foundered and sank-in fact, there were three: SIEV4, SIEV6 and SIEV10. Senator BARTLETT-I will try to find out a bit more about SIEV6 at another time or a bit later on. Normally, through whatever means, you would have information that a vessel was approaching. That information would come to you and you would then direct ships to move to a particular area? Rear Adm. Smith-The process would be like this. We have daily briefings where we analyse all the information available to us-the results of our patrols and that sort of thing. I would agree with the JTF commander, Brigadier Silverstone, as to where the priority for the effort would be, and he would then execute that direction. Senator BARTLETT-In terms of lines of command-and we have explored this a little bit with various people-could I get a bit more clarification about the level of government involvement in particular decisions or activities. I do not know whether you heard some of the earlier evidence that was read out from ships' logs et cetera saying that they were waiting on advice from the PM as to whether to tow and where to tow. Whether it is the PM personally, his office or the government that gives the direction about where to take the vessel, is there any other form of involvement from government in relation to the conduct of Operation Relex? Rear Adm. Smith-I will make two points in relation to that. When you are a sailor in a ship, government equals Prime Minister; that might explain some of those comments that were in some of the logs. As I said in my opening statement, once these vessels were intercepted in the early stages of Operation Relex, every decision that was taken in terms of what to do with CERTAIN MARITIME INCIDENT CMI 456 SENATE-Select Thursday, 4 April 2002 that particular vessel and the people in it was in fact directed from Canberra. It is my understanding that that came out of the interdepartmental committee process and therefore, from our perspective, it was a government direction. Senator BRANDIS-Senator Bartlett, could I jump in with one question? Rear Admiral Smith, when you say that as a sailor on a ship government equals PM, do we take it from that that there is no significance to be read into the fact that in some of the documents there is a reference to the order having to come from the PM-that that is to be understood merely as a reference to the fact that the order has to come from the government in Canberra, from whatever organ of the government is responsible for giving that order? Rear Adm. Smith-That would be my interpretation of those entries. Senator BRANDIS-Not from the Prime Minister personally or from the Prime Minister's office? Rear Adm. Smith-No. Senator BARTLETT-For any order to be put into effect, it would have to go through you anyway, wouldn't it? Rear Adm. Smith-That is correct. Senator BARTLETT-So, in that sense-to fully put to rest the point that Senator Brandis is getting it-did you receive any orders or directions that, in your understanding, were direct from the PM, so to speak? Rear Adm. Smith-No, I did not-at no time. Senator BARTLETT-You just said that all decisions were generated out of that interdepartmental committee. So they would fairly regularly provide directions to you about what should be done? Rear Adm. Smith-Not directly to me, but certainly as these incidents unfolded that particular committee, as I understand it, met regularly and decisions were taken out of that process as to the next step in the particular operation, whatever the SIEV happened to be. That message was relayed through the chain of command to Admiral Ritchie and then from him to me, and my job was to get on with it. Senator BARTLETT-So if reports were received of a SIEV making its way to Australia, for example, that interdepartmental committee would probably be made aware of that pretty promptly? Rear Adm. Smith-I would assume so, yes. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 457 Senator BARTLETT-So would the committee then suggest, direct, request or propose that the SIEV be intercepted or that vessels be moved to intercept it-in that sort of detail-or would that be left to you? Rear Adm. Smith-No, it was left to the Navy to do that. Part of our mission was to intercept. What I was referring to was that, once that interception had occurred, in the early stages in fact we needed approval to board. That was subsequently relaxed as the operation unfolded. But really, once we had intercepted, everything that occurred after that in terms of major decisions-such as boarding, removal of people or whatever it happened to be-actually came from Canberra. Senator BARTLETT-You said in your opening statement that it was an imperative that CDF and government were rapidly and accurately updated on events as they occurred, and I assume by `government' you mean this joint interdepartmental committee- Rear Adm. Smith-Correct. Senator BARTLETT-or the minister? Rear Adm. Smith-No. Senator BARTLETT-So when each of these events was happening I presume that there would have been a lot of information flowing both ways and that would always go through you. Rear Adm. Smith-It was through the chain of command-that is correct-and from me to Admiral Ritchie, from Admiral Ritchie, as I think he has said, to the CDF or at other times to Air Vice Marshal Titheridge and certainly through Air Vice Marshal Titheridge it would then go into that IDC process. Senator BARTLETT-Air Vice Marshal Titheridge's role, as I have understood it, is not part of the chain of command- Rear Adm. Smith-No, it is not. Senator BARTLETT-but part of the chain of communication. Rear Adm. Smith-He is a staff officer to the CDF for operations, and Admiral Ritchie would deal with CDF directly and also with the head of Strategic Command. Senator BARTLETT-A question has been raised a couple of times to date about some of the other incidents whose details have been released in the Titheridge minute and why those were not communicated to government. As far as you are aware, were they communicated to government? Rear Adm. Smith-I do not know if they were communicated to government. CERTAIN MARITIME INCIDENT CMI 458 SENATE-Select Thursday, 4 April 2002 Senator BARTLETT-In earlier evidence from Brigadier Silverstone-I think it was his evidence but I might be wrong-when were were talking about the SIEV4 incident and the child-over-the-side specific, he basically said in an operational sense that was not particularly significant; what was significant was that if anyone were in the water they got out. So is it possible that in an operational sense-without going through all of these individually one by one although I am sure we will be doing that at some stage-that many of them would not be seen at the time as significant and as needing to be communicated? Rear Adm. Smith-With all the information through all of the SIEVs 1 to 12, the tactical messages that were relayed from the ships to the JTF headquarters and from the JTF headquarters to my own were subsequently relayed to Defence headquarters in Canberra, to Strategic Command. From there I cannot really comment as to where that information was taken. Senator BARTLETT-So it is really a matter for Strategic Command as to how much detail they pass on or what is necessary to be done with it? Rear Adm. Smith-That would be my assessment, yes, and Air Vice Marshal Titheridge would be the best one to answer that. Senator BARTLETT-So how much detail would be passed on? Would it be this level of stuff that we are getting? What specifically do you provide? Rear Adm. Smith-Much more than you have there. I referred to it earlier on. We have a suitcase out the back here with about 1,500 or 1,700 messages. All of those messages were relayed to Defence headquarters in Canberra. Senator BARTLETT-Do you have any mechanism that highlights which bits are of crucial importance? Rear Adm. Smith-I provided Rear Admiral Ritchie, on a daily basis, with a summary of the events of the last 24 hours. He in turn produced the same type of message which he then forwarded to the CDF, and that was the way we distilled the information that was contained in these detailed messages into a picture-a snapshot-of the last 24 hours of operations, and that is our normal operation method. Senator BARTLETT-So if you had been providing a summary of events of the last 24 hours it would not necessarily have been the case that that summary contained the fact that one sailor reported that someone threatened to throw a child overboard? Rear Adm. Smith-It would not necessarily contain that. What we try to capture are extraordinary things, things of interest and things that may have changed from the preceding 24 hours-in other words, to try to alert the chain of command to anything significant that may be there. An incident that is not uncommon would not necessarily be included in that summary message, and I guess I would have to go back through every one of those summary messages to see if we did in fact exclude a particular incident. But normally if there were a SIEV operation under way and there were activities going on like some of the things that I referred to-threats of harm and those sorts of things-we would normally capture that message in the summary. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 459 Senator BARTLETT-I guess it is the level of detail. The interesting thing from reading the statements-at least the ones that we have in some detail-is that when you actually can get the picture of something that goes on over a whole day rather than the five-second snapshot of a child-it is not even clear in some cases whether it is physical action or just someone making a verbal threat-it is part of all the action that happens in a day and is not particularly significant. Rear Adm. Smith-It would depend- Senator BARTLETT-It's a case by case- Rear Adm. Smith-It is a case by case basis. If there were, as I said, a SIEV incident unfolding where there had been a range of actions taken by some of the people on board, we were doing things like fixing pumps or fixing engines, or whatever it happens to be, we would normally capture that sort of information in the daily summary. Senator BARTLETT-In your involvement in previous activities in the Navy prior to Operation Relex what experience or awareness would you have had of the detail of Navy engagement with asylum seekers? You mentioned in your opening statement that prior to the implementation of the revised border protection policy at that time unauthorised arrivals were invariably cooperative and compliant in a relatively benign environment. Rear Adm. Smith-Yes. Senator BARTLETT-Would you have a fair bit of knowledge of that previous environment and the activities that occurred? Rear Adm. Smith-I have probably got as much as anybody else, having been a Maritime Commander since 2000. We had about a year's worth or a bit more of normal operations before the change of policy, so I was very familiar with that. My job two removed was Brigadier Silverstone's job as the Commander Northern Command where I had responsibility for an operation we called Cranberry, which was not just illegal immigrants but fishing vessels and those sorts of things. So I have had some experience of this type of operation. Senator BARTLETT-It is an interesting contrast that you have drawn in that part of your opening statement. In a sense it is possibly commonsense, but it is also important that you have specified that it is the case that, in the Navy's previous role with interception, boarding and escorting of SIEVs and transporting their occupants, invariably it was incident free. I am probably slightly rephrasing your words, but you say that in a relatively benign environment unauthorised arrivals were invariably cooperative and compliant. Rear Adm. Smith-Yes. Senator BARTLETT-So it was very different from the nature of what people have to confront now. That would seem to me to very clearly demonstrate that it is the changed nature of the engagement that has impacted on people's behaviour rather than the fact that people are inherently prone to this type of threatening behaviour. Rear Adm. Smith-I think that is a fair assessment. CERTAIN MARITIME INCIDENT CMI 460 SENATE-Select Thursday, 4 April 2002 Senator BARTLETT-You mentioned the requirement of international law imposing positive obligations on mariners. I am not sure if it is worth getting too legally technical here, but I might try anyway. Where does that actually engage? You have the laws that are now passed-which I think you referred to in your statement-that empowered Navy vessels to prevent, to intercept and to tow back to Indonesia. How does that interact with international law? Obviously there are safety of life at sea situations. Does that actually have legal power under Australian law and obligation? Could you outline a bit of the standing of that? Rear Adm. Smith-Certainly. Under the 1974 International Convention for Safety of Life at Sea and the law of the sea conventions, there are well established principles of customary international law, where obligations do exist for mariners to render assistance to other mariners in distress. We inculcate within our training of young officers with the Navy that responsibility, and I have no doubt at all that every commanding officer understands and respects that responsibility. I have been in the Navy for 34 years. I have commanded four warships. At no time was I ever in any doubt as to what my responsibilities as a mariner were to other mariners in distress. And I have no doubt at all that every commanding officer currently at sea in one of Australia's Navy vessels also understands it as well. Senator BARTLETT-I do not dispute that in any way whatsoever, but does it have a legal status under Australian law? Rear Adm. Smith-Under international law we have that responsibility. I would have to take that on notice. I assume that that same thing would apply under Australian law. Senator BARTLETT-Who would make the judgment of where that kicks in? Would it be the commander of the vessel in that situation, once they determine that this is a safety of life at sea situation and that overrides-that is possibly not the right word-the other mission obligations? Rear Adm. Smith-Yes. Every commanding officer would be in no doubt that if, in his judgment, a safety of life at sea situation had developed his priority would be to effect the rescue of the people involved in that, and that would take precedence over any other direction he would have received. Senator BARTLETT-You may not be aware of this, but there was a report-I am fairly sure it was in the Weekend Australian in January-about plans by the Australian Maritime Safety Authority to change the requirements in relation to other people engaged in rescue situations and having to notify the Navy first and get Navy permission. Are you aware of that report? I have not heard anything on it since. Rear Adm. Smith-I am not familiar with that report. Senator BARTLETT-You are not aware of any pending changes to the role of the Navy in terms of rescue at sea situations? Rear Adm. Smith-Not at the moment. As you were speaking, I do recall having read something along those lines, but I would have to refresh my memory on that. It is not with me. CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 461 Senator BARTLETT-It is not something that is about to be done tomorrow by the sounds of it. In general terms, once you are made aware that a SIEV is on its way, does that normally include information such as how many people are on board or any of that sort of detail? Or would it vary from case to case? Rear Adm. Smith-It would vary from case to case. Again, this would be information drawn from the intelligence that we would be provided with. I would like to leave that alone if I could until I have clearance to talk about it. Senator BARTLETT-It would be normal practice, though, once you knew that a vessel was on its way, to start moving one of yours in their direction? Rear Adm. Smith-Yes, if we had information that a vessel was being prepared, we would probably have a rough idea of the sorts of numbers that might possibly be embarked. We never really had a strong idea of when things would sail, but our operation and the disposition of the forces available to us would take into account that we might not have any warning at all, and therefore we would be prepared in any eventuality. Senator BARTLETT-Are you aware of the newspaper articles by Mr Tony Kevin in relation to the boat that sank on 19 October last year with the loss of significant numbers of lives? Rear Adm. Smith-I certainly am. Senator BARTLETT-We established last week pretty categorically that the report by one of the survivors that there were Australian Navy vessels in the area was not the case. I note that he is now raising questions about why the nearest vessel was so far away. He has put the proposal that they would have been aware that it was coming and asks why it was south of Christmas Island. Do you have a response to that? Rear Adm. Smith-First of all, I must say I cannot pass up the opportunity to get this on record. I took great offence on behalf of the Navy at the suggestion that a professional organisation such as our Navy would even allow or ignore such a circumstance if we were in a position to assist. As to why we were not there in that particular case: if my memory serves me right, we had some information that a boat might have been being prepared in the vicinity of Sunda Strait but we had no real fixed information as to when it was going to sail. Indeed, the first time that the Navy knew that this vessel had sailed was when we were advised through the search and rescue organisation in Canberra that this vessel may have foundered in the vicinity of Sunda Strait. At that time our nearest ship was about 150 miles away. The reason it was so far away was that we were not permitted to intercept or board vessels in Indonesian territorial waters. Indeed, our patrols were such that we were intercepting closer to our own territorial waters rather than to Indonesia so as not to create any tensions in those sorts of areas. That is the reason why there was no ship nearby. We were not in a position to do anything, so it was better to have the ship where it could do something, which was closer to Christmas Island. Senator BARTLETT-So, normally speaking, when you talk about moving a ship towards a place to intercept, it is not necessarily going to the nearest crossover point; it is going to Christmas Island or Ashmore Reef or wherever you think it will be going. CERTAIN MARITIME INCIDENT CMI 462 SENATE-Select Thursday, 4 April 2002 Rear Adm. Smith-It is important to understand the way the operation was done, Senator. We were authorised to intercept these vessels on the high seas, and to provide them, if the master was willing, with some warnings-`Please don't come our way'-but we were not authorised to do any boardings until the vessel had entered the Australian contiguous zone. The contiguous zone is 24 miles from Christmas Island, so our boarding could not have occurred until 24 miles out from Christmas Island in that particular case. Our intercept could have been further out but we would not have gone as far up as to Indonesia to do that, otherwise we would spend the whole time following that particular vessel back towards Christmas Island before we could do anything. By having the vessel too far `up threat', as we would call it, you run the risk of another vessel coming along and getting in behind you. Senator BARTLETT-What are the requirements under the directions of Operation Relex with vessels once you have turned them around to monitor what they do? Rear Adm. Smith-Once we had intercepted these vessels we had no authority to board. Once we boarded-that is, in contiguous zone, 24 miles-we then turned them around and escorted them back to international waters, at which time our boarding party extracted-in other words, they got off the ship and we took it back. Our ships then withdrew over the horizon and monitored just to see what the vessel was going to do, and I think in almost every case they just turned around and came back again. So our monitoring was just to see what they were going to be subsequently doing, and that was what we did. Senator BARTLETT-It is basically monitoring to see if they would come back. Rear Adm. Smith-That is correct. Senator BARTLETT-Again it is probably best to wait to see if we can get this information from paper rather than dragging it out verbally which will take a lot longer. In all of these 12 incidents, did a boarding occur? Rear Adm. Smith-In all the incidents boardings did occur, yes. Senator BARTLETT-As part of your overview of responsibility for the operations, does that include those trips taking asylum seekers to Manus Island, for example, or the Manoora voyage? Does that come under your command as well? Rear Adm. Smith-Yes, it does. Senator BARTLETT-You have mentioned the difficulties and the great lengths that the ships' companies went to in terms of clothing and laundering et cetera. I did note in one of the many memos we have got that there was at least a request to consider the possibility of the Adelaide taking SIEV4 people over to Cocos Island, and it is detailed that the ship really was not equipped. How well equipped are the Navy vessels for that sort of long-range transportation of that number of people in terms of life rafts and safety equipment as well as basic shower and toilet facilities? Rear Adm. Smith-It depends what ships you are talking about. In the case of SIEV4 and, say, Adelaide, an FFG guided missile frigate which Adelaide is is really only suitable for CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 463 emergency transportation of people in a SOLAS type situation. I was very conscious of that fact when it was suggested that the ship may be used for the purposes of transportation of those people rescued from SIEV4. It was one suggestion that did come through, and I had some concerns about that. In the case of the ships that did do the transportation task, which is the Manoora, which is an amphibious ship, and Tobruk, which is also an amphibious ship, both of those ships are designed and equipped to carry 450-odd troops, so embedded into the ships' organisation and facilities are appropriate cooking and sanitary type facilities to support those extra people. In both those cases there were no troops embarked so that was additional capability within them. We embarked in both Manoora and Tobruk additional life rafts to cover the extra people that were on board, and I was quite satisfied that at all times the safety of not only the RAN crew and the Army crew on board but also the UAs that were on board were covered by the equipment that we put on board. Senator BARTLETT-Nevertheless, you called them difficult and trying circumstances. There were reports of various instances of misbehaviour-for want of a better word-of some of the asylum seekers during the Manoora voyage. There were some specific allegations of significant damage done to the Manoora. Can you outline what the extent of that damage was? Rear Adm. Smith-It was fairly minor in monetary terms. It was largely confined to the areas of the ship in which we had some of these people. I make the point that as much as we could we tried to keep these people out of the insides of the ship because in those circumstances it is much more difficult to control the movement of people. For example, in Tobruk, which has a large internal deck called the tank deck on which we normally stow tanks and trucks, we set up accommodation, stretchers, curtains and that sort of thing to keep all the people there. In that way we could keep them contained. On board Manoora, because of the numbers-we had some 650-odd people on board Manoora-there were too many people and there were two different groups of people. It was thought inadvisable to mix the two groups-they were ethnic groups. One group were largely Afghani and the other group were largely Iraqi. There was a concern- Senator BARTLETT-They were from the Tampa and the Aceng, I think. Rear Adm. Smith-Correct. So we had the Afghani group-the larger number-on the tank deck of Manoora and the Iraqi group were actually internal to the ship in the accommodation that is normally used by the embarked troops on board. It was with respect to that latter group inside the ship where there was some damage done to the accommodations-the bunks-and there was some damage done to the bathroom facilities that were the troops' bathroom facilities that had been made available to those people. That damage, as I said, was fairly minor in monetary terms, but there was some damage done. Senator BARTLETT-The quote I was looking for, which I have found, was from the Daily Telegraph on 13 October last year-the front page story saying what really happened aboard HMAS Manoora-purporting to quote sailors from that vessel. The article detailed allegations including those that boat people broke the arm of a little girl, that Special Air Service troops conducted covert surveillance of a man believed to be a sleeper agent with connections to Osama bin Laden and that a woman tried to throw her daughter over the side of the landing craft. It also concluded that a total of 36 hours of video footage and 800 digital photos showing CERTAIN MARITIME INCIDENT CMI 464 SENATE-Select Thursday, 4 April 2002 riots, fights and ship damage had been taken by the Maritime Commander for review and evidence. Can you verify the accuracy of that? Rear Adm. Smith-There are a few incidents in there, Senator. We were advised of the incidents that you mention through that particular report. We investigated it and found that there was no evidence to support any of those allegations: no evidence to support the child having her arm broken; no evidence to support any covert surveillance of anybody-I think a small camera was mentioned in that particular article-it did not happen. There was no evidence to support someone trying to drop a child over the side of the LCM. So in fact, with all those claims, there was no evidence to support them. The CO was asked to investigate all of those. I have just forgotten what you said in the second part of that. Senator BARTLETT-That was about the 36 hours of video footage of riots, fights et cetera. Rear Adm. Smith-There is video footage and still photographs of the conditions on board Manoora and the activities primarily involved with removing those people when they arrived in Nauru. That video footage is contained at my headquarters. Senator BARTLETT-Would you say it is accurate to suggest that it is predominantly showing riots, fights and ship damage? Rear Adm. Smith-It is certainly showing a riot, a riot of some significance-and this was the Iraqi group internal to the ship. I must say the Afghani group on the tank deck caused very little trouble. The real issue concerned the other group that was located internal to the ship. These other people refused to leave, which also got a lot of publicity. Part of the video footage certainly shows a riot developing within the mess deck where they were and that was of sufficient concern to the ship that the ship's staff and the army people withdrew and sealed the hatch until they cooled down. Senator BARTLETT-Given all of those reports you investigated that were found to be false, did you try to ascertain the source of those pieces of information that were allegedly from sailors on board, or communicate your findings to the Daily Telegraph? Rear Adm. Smith-No, we did not. I provided answers to those particular allegations through the chain of command. What actually happened to that information I am unaware of. I certainly did not attempt to locate any sailors who may have spoken to the media about that incident. In fact, I came to the conclusion that this probably occurred when the ship arrived back through a very difficult time in its program, and over a couple of drinks in a bar someone from the media had approached a couple of sailors. Sailors have got great imagination when they want to use it. I can only assume that was part of that particular process. Certainly, we found no evidence to support any of those allegations. Senator BARTLETT-Over the course of the hearings we have talked a bit about the communication guidelines in place for this period of time in terms of public communications. When those sorts of allegations are made about activities on board a vessel that have been found not to have occurred, is there some expectation-in this case it would be government as they CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 465 have to give the approval-that those reports would be corrected? Or is it purely a decision for them as to whether they think it is worth the time? Rear Adm. Smith-I believe that was a decision of at least our minister. We operate under the guidelines which you have been exploring for some time now, and they still applied for this particular case. Senator BARTLETT-That incident of trying to encourage the people off the Manoora onto Nauru, which did get a fair bit of coverage, would have been one incident where you were rapidly updating government about events as they occurred. Would that situation have been one where government directions would have been involved in how to deal with the situation? Rear Adm. Smith-It was a very difficult time, Senator, because some of what was going on was not even within the control of our own government as it involved United Nations authorities-in particular, the International Organisation for Migration, who were taking responsibility for the people being landed from Manoora. They made it very clear right from the start that they would not accept people who were forcibly removed from Manoora so we had to go through the process of trying to convince these people to leave. As I said, the Afghanis were very good and did as they were asked. The Iraqi group that were internal to the ship proved very difficult. Senator BARTLETT-What is the difference in the conditions between internal and external? It does not sound terribly pleasant being locked up inside the troop carrier for long periods of time. Rear Adm. Smith-I guess the main difference between inside the ship as opposed to on the tank deck was that internal to the ship was airconditioned. The conditions on the tank deck were just forced ventilation and, if you recall, this was operating in the tropics and it was getting quite hot in there. The ship's captain was routinely allowing the people to get out of there and to get onto the upper deck to get some fresh air and some respite from the conditions. Senator BARTLETT-Do you think that the lower level of cooperation of that group was to do with their environment? Would that have made them more prone to be grumpy? Rear Adm. Smith-You have asked me to make an assessment there. I guess my assessment would be that they were being difficult because they knew they were on Australia-a warship is Australia. They were reluctant to get off it because they knew that by getting off it they were not achieving their objective. Senator BARTLETT-Chair, you are wanting us to finish at 10.30 p.m., aren't you? CHAIR-We are, yes. Senator BARTLETT-There has been a little bit of questioning about the specific internal- CHAIR-Unless we can dispose of this witness tonight. The advice I have-I am sad to report-is that we cannot. CERTAIN MARITIME INCIDENT CMI 466 SENATE-Select Thursday, 4 April 2002 Senator BARTLETT-Okay. A few people have been interested in the specific incident on SIEV4 about reports of a child being thrown overboard, which I thought I would just touch upon briefly. We have the record of interview that you have done for the Bryant investigation. Rear Adm. Smith-Yes. Senator BARTLETT-Obviously, initial advice was provided to you from Brigadier Silverstone based on his understanding of the telephone call. That was then corrected by written information within a couple of days, passed on to you, and you passed it up the chain of command, which would be to Admiral Ritchie- Rear Adm. Smith-That is correct. Senator BARTLETT-and that was your job done, basically. Is that right? Rear Adm. Smith-In the broad, that is correct. There are a lot of details in there which I am happy to explore if you wish but, yes, that is the end result. Senator BARTLETT-And your job is not about what happened to it then and to whom it was passed, who knew what and when, and who chose to say what or not. That is not in your responsibility. Rear Adm. Smith-No, that is correct. Senator BARTLETT-The issue which Brigadier Silverstone talked about, the special circumstance of communicating with Air Vice Marshal Titheridge, as I understood it, is evidence that occurred specifically only with SIEV4. Did that not occur again because of the confusion that arose over this particular incident? Rear Adm. Smith-No, there was only one occasion when that particular chain was used. As I said in my introductory statement, there were special reporting arrangements put in place for this whole operation. But in the case of Air Vice Marshal Titheridge there was only one occasion when I directed Brigadier Silverstone to ring the air vice marshal direct and that was on the morning of 7 October. Senator BARTLETT-Why was that the only occasion? Rear Adm. Smith-I had a call from Admiral Ritchie on the Saturday evening at about 9.30 p.m., explaining to me that our minister was due to appear on a television show on the Sunday morning, and I just assumed that to be the Sunday program or something. He had agreed with Air Vice Marshal Titheridge that he, Titheridge, should be rung at eight o'clock eastern standard time to be updated on the events that had occurred given that we were already in contact with this SIEV, and Brigadier Silverstone was to do that. I subsequently rang on Saturday evening at 2142-from my own phone records to be precise-and told him that information, and that is what occurred. CHAIR-Would this be an appropriate point? CERTAIN MARITIME INCIDENT Thursday, 4 April 2002 SENATE-Select CMI 467 Senator BARTLETT-I have one more question. The fact that was the only time was not because of the confusion that arose around the incident? It was just because it was the only time you got that request? Rear Adm. Smith-That was the only time I was asked to facilitate that direct communication. It was to support a media appearance by the minister. CHAIR-Before we close tonight's hearing, I think we have got an organisational problem again. It is my understanding that tomorrow you take over from Rear Admiral Ritchie as he is leaving Australia for Japan and his office is in Sydney, not here in Canberra. We have also coaxed Air Vice Marshal Titheridge back from leave a day early. I understand he has driven all day today from Adelaide, about a 12-hour drive, to be here to give evidence tomorrow. Perhaps you can give us a bit of guidance, Rear Admiral. Are you able to complete your evidence tomorrow or are there pressing affairs of defence that require you to be in Sydney? Rear Adm. Smith-I can be available tomorrow, Senator. I have prepared myself for the fact that I would be here and I made some arrangements with Admiral Ritchie that will allow us to do what we have to do. So I am available at your disposal. CHAIR-Having been burnt by us once, you have boxed clever this time. Fair enough. We will resume at 9 a.m. tomorrow. Committee adjourned at 10.30 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident FRIDAY, 5 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Friday, 5 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Faulkner, Ferguson and Mason. Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence................................470 Friday, 5 April 2002 SENATE-Select CMI 469 Committee met at 9.08 a.m. CHAIR-I call the committee to order. Today the committee will continue its hearings in relation to its inquiry into a certain maritime incident. Today's hearing is open to the public. This could change, of course, if the committee decides to take any evidence in private. The committee has authorised the broadcast of the public aspects of proceedings. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege, and the Senate will use its powers to protect witnesses against any adverse consequences arising from the giving of evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy; however, they may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. Witnesses will be asked to make an oath or affirmation. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. For the convenience of all, the committee has agreed that counsel may be seated at the witness table with the witness. However, counsel has no right to address the committee, nor will the committee address questions to counsel. When we adjourned last night, Senator Bartlett had the floor and was questioning Rear Admiral Geoffrey Smith. CERTAIN MARITIME INCIDENT CMI 470 SENATE-Select Friday, 5 April 2002 [9.11 a.m.] SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence Rear Adm. Smith-Before you start, Senator Bartlett, you asked me some questions last night that I have an answer to. You asked me a question specifically about Australian domestic law and safety of life at sea. I mentioned to you that there are two international conventions- the 1974 International Convention for the Safety of Life at Sea, and the 1982 Law of the Sea Convention-both of which place responsibilities on mariners to assist other mariners in distress. The provisions of those international conventions are contained within the Commonwealth Navigation Act and thus are part of Australian domestic law. Further to that, within my Maritime Commanders Orders, called MARORDS, there are clear directions to all naval commanding officers: In normal peacetime circumstances, HMA Ships are to render assistance in accordance with article 98 of the Law of the Sea Convention. Senator BARTLETT-Thanks for that. I also asked last night whether it was possible to get any sort of summary of the various 12 SIEV incidents. Rear Adm. Smith-I was going to get to that, Senator. In fact, there are a number of documents that I can table for the benefit of the committee to help you work your way through this. In answer to your particular question, I do have summaries for each of the 12 SIEVs. They are not official documents in the sense of a minute; they are my briefing notes, which are a precis of all the information and signals that sit beneath each of these SIEV incidents. I am happy to table that summary. You will notice that there are a couple of sections that have been blacked out. What was contained in those are merely ports of departure from Indonesia, which have been drawn from intelligence background and which I am unable to release at this time. I am happy to table the document. CHAIR-If it is passed up, we will receive it and then agree to the tabling. Rear Adm. Smith-There are also a couple of other documents, if you would care to consider those in the same context. Senator Collins, in Hansard at page 123, sought the provision of a copy of the Maritime Commander's report on SIEV incidents that dealt with the same information as the brief, titled `Unauthorised arrivals', from the head of strategic command. I think the committee have called it the Titheridge report. I have my document here, and I am prepared to offer that also. That is available for your consideration. The final one is one that I have produced personally-a matrix document which covers SIEV1 to 12. The matrix shows the dates of the activities, the naval ships involved in the operation, the outcome of that particular operation and a range of activities that could have occurred-children thrown overboard, threat to children, threatening of offensive behaviour, threat of suicide or self-harm, sabotage or fire et cetera and hunger strike. I have noted for each CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 471 those SIEVs when those sorts of events occurred. There is also a summary table at the end with some other incidents. I am happy to make that available to the committee should you wish. CHAIR-Perhaps you should hand up those documents. We will receive them and make a decision about tabling. Senator BRANDIS-Could I ask a question of Rear Admiral Smith in relation to the bundle of documents that has just been handed up under the generic title `events summary'? I am just flicking through them. On page 2 of the SIEV6 event summary, the word `restricted' appears at the head of the page. From the Navy's point of view, are there any limitations-whether for reasons of security or otherwise-on the committee publicly releasing these documents? Rear Adm. Smith-There is no reason; in fact, we should have deleted that particular heading, and we will do so. CHAIR-I have before me the first group of documents that you have handed up, Rear Admiral. These have been typed up from your handwritten notes, have they? Rear Adm. Smith-These have been typed up as a result of taking all the source documents that underpinned each of these 12 SIEV activities, and I have precised in that document that information from those source documents. CHAIR-So this represents a precis by you of those source documents? Rear Adm. Smith-That is correct. CHAIR-And, as you said, it is not an official document? Rear Adm. Smith-It is my notes. CHAIR-It is an aide-memoir for you? Rear Adm. Smith-Correct. CHAIR-Is there any reason why we should not table them? Senator BARTLETT-No. Senator JACINTA COLLINS-Let me clarify: regarding the document in answer to my earlier question, have you made it available for copies to be taken? Rear Adm. Smith-Yes. I believe the secretariat has that. Senator JACINTA COLLINS-Which one is it? Rear Adm. Smith-It is this one here, with a minute up the top, and it is addressed to the CN, Chief of Navy. CERTAIN MARITIME INCIDENT CMI 472 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-Could I ask you about the numbering of the SIEVs? Prior to the key date being midnight 3 September-you provided that key time and date to us yesterday-there of course were other vessels that one could generically describe as suspected illegal entry ves- sels-in other words, that predate SIEV1? I think that is fair to say, isn't it? Rear Adm. Smith-That is correct. Senator FAULKNER-Could I just ask so I understand-and, of course, there will be events surrounding the Tampa which are well known-what system did you use prior to SIEV1? Did you use the actual names of the vessels? How did this work prior to the commencement of Operation Relex in a formal sense? Rear Adm. Smith-There was not a formal numbering system for the incidents prior to the commencement of Relex. The numbering system of SIEV1 to 12 applies only to those events that occurred under the auspices of Operation Relex. Prior to that, the reporting methodology would have been either the name of the vessel or some other distinguishing feature. They were not tracked in the same way as the Relex ones had been. Senator FAULKNER-If we were to go back through the month of August 2001, would you be able to similarly provide some information to the committee about the number of suspected illegal entry vessels although they are not numbered? If you were to do that, would you do that by name of vessel or by description of event? How would that work? Rear Adm. Smith-For the events prior to 3 September, it was not the ADF's lead in this matter. The Coastwatch and the Department of Immigration and Multicultural and Indigenous Affairs had the lead for these. The department of immigration allocated code names to these various vessels when they were reported. If I were asked to go back through our records, all I could provide would be that information that we inputted into Coastwatch from our own interception of those particular vessels. I would not have information on what happened to those vessels after we had handed over custody of them. Senator FAULKNER-So you make the key distinction here that it was with SIEV1 that there was an absolute ADF authority, which was a result of the legislative changes. Is that the point you would make? Rear Adm. Smith-It was not the result of the legislative changes; it was a government decision that the ADF would take the lead. Prior to 3 September, we were a supporting agency; after 3 September, we were the lead agency. Senator FAULKNER-Just so I am clear, this is Operation Relex. I do not know what the basis of the terminology `Relex' might be. But prior to Relex was there a Naval or ADF operation or relevant operational name? Rear Adm. Smith-Yes, there was. It continues today. It is known as Operation Cranberry and it has been going for some years. It sweeps up the ADF support for the national surveillance effort, which is coordinated by Coastwatch, and it covers illegal immigration and also illegal fishing and any other Customs support that we may be asked to provide. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 473 CHAIR-The question is: do we release these documents? I have a question of whether they are relevant to our terms of reference. Senator FERGUSON-We have been talking about these things right through the whole of the inquiry. CHAIR-I know I have been liberal in my interpretation, but we have to come to a point of looking at our terms of reference and deciding on the question of whether they are relevant to our terms at some stage because the amount of time this inquiry is taking is blowing out and making it very difficult for us to keep our deadline. I am just a bit uncertain as to whether these documents do relate in any way to our terms of reference. Our terms of reference seem to me, as handed to us by the Senate, to relate to the SIEV4 incident and this introduces a whole range of new material. Senator BRANDIS-May I speak to that? CHAIR-You may. Senator BRANDIS-Paragraph (c) of the terms of reference reads that we are to inquire and report on: (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. May I simply make two points. First, plainly that paragraph of the terms of reference is not limited by the limiting words in paragraph (a) as paragraph (b) is so limited: that is, it applies generally and not merely to SIEV4, and that is the way it has been understood throughout the public hearings by you, if I may say so with respect, correctly. The second point I wish to make is that nor is paragraph (c) of the terms of reference limited to incidents involving the safety of children; rather, it deals with all matters concerning the safety of asylum seekers of illegal entry vessels. CHAIR-Does anyone else wish to comment on this question? Senator FERGUSON-If I could support what Senator Brandis has said, right from the very start of this inquiry you said you wanted to be exhaustive and to look at all the issues that are covered by the terms of reference. We have discussed all of those SIEV incidents all the way through this inquiry and when Rear Admiral Smith supplies us with further detailed information, I think it would be quite contrary to all the actions that we have taken in the past three days to not allow all the evidence that is available to this inquiry to be used by the inquiry and made available. What we do with that evidence is up to us. As Senator Brandis said, that part of the terms of reference that he quoted clearly covers incidents outside of SIEV4. Senator MASON-I will be very brief. Two things: I think, as Senator Brandis and Senator Ferguson said, this discussion is clearly within the terms of reference and perhaps not just paragraph (c) of the terms of reference but also elsewhere within the terms of reference; and, secondly-perhaps less importantly but still I should raise it-it has always been this CERTAIN MARITIME INCIDENT CMI 474 SENATE-Select Friday, 5 April 2002 committee's understanding that these issues can be canvassed, as they have been over the last few days. Senator FAULKNER-The point I would make here is that in paragraph (c) of the terms of reference we are not using the `upper case' terminology `Suspected Illegal Entry Vessels'; we are using the terminology `vessels entering or attempting to enter Australian waters'. Hence I asked the question of Admiral Smith in order to get a broader understanding of what occurred before the actual numbered Suspected Illegal Entry Vessels 1 to 12. I would be interested in your interpretation of whether that falls within the terms of reference. You might well argue, given the way the terms of reference are structured, that any vessel after 1901 might fall into that category. Senator BRANDIS-Chair, if it helps, can I respond by saying we will limit ourselves to- CHAIR-Wait a minute. I was not aware that Senator Faulkner had finished. Senator BRANDIS-I am sorry; I thought he was directing a challenge to the government senators. Perhaps I misunderstood. Senator FAULKNER-I never direct challenges to government senators. I was merely drawing the chair's attention to the fact that my questioning involved vessels that, just a moment ago, you would not define as upper case and numbered `Suspected Illegal Entry Vessels'. In other words, it is not one of the so-called `SIEVs' in a formal sense, using `SIEV' as the technical terminology which applies from midnight on 3 September. So there is that issue which we have not considered, Chair. It is probably useful for us to make some sort of determination; I think that will have an impact on the timing of the inquiry because it does bring into play a range of other issues, particularly those that occurred prior to the interception of SIEV1. CHAIR-Any other comments from anyone who has so far not spoken? Senator BARTLETT-In terms of this information, as well as the conduct of the inquiry to date, we have received other documents, kindly provided by Senator Hill, despite the cabinet directive, that have gone to other incidents and other SIEV situations. I think it would be difficult to argue that it did not come under paragraph (c) of the terms of reference or, indeed, I would probably argue at least in part, under the second part of paragraph (d) of the terms of reference in terms of the activities of the Manoora, engaging at Nauru and that sort of thing. I am a bit reluctant in a sense, because I am fully aware of what this sort of information is going to be used for today. I should note the talk about operational procedures not assessing the moral character of asylum seekers, but I can make that point later. In terms of the documentation about this being summaries of operational procedures, I think it is relevant. Senator JACINTA COLLINS-Chair, I do not have any particular objection to this documentation being taken as a more general description of events. In fact, I think part of the material that Rear Admiral Smith is providing is in response to a request of mine that these incidents be taken in their full context rather than just any reference that might pertain to a child, taken out of context, which is what I believe the earlier documentation did do. Further to Senator Bartlett's comments, I think it was deliberately used to do that. I, too, concur with his CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 475 concerns that at the moment we have a drip feed of information from the Minister for Defence. I would seek some clarification as to where our request for a full response from Defence in relation to our terms of reference is at. Simply dealing with a selection of documents on a selection of issues within our terms of reference is not appropriate. We still do not have a full brief from Defence with respect to our terms of reference, and I think it is important to note that at this stage. Senator FERGUSON-Mr Chairman, if we are going to discuss this further, I think it should be at a private meeting, not as part of the public hearing. CHAIR-It is a matter that relates to our publicly published terms of reference. I raised the question in the first place. We have had a position put by everyone other than me. I am mindful, Senator Brandis, that you seek the call to comment on something that Senator Faulkner has said. Senator FAULKNER-He was just asking whether I was- Senator BRANDIS-I will waive that. Senator FAULKNER-I was not issuing a challenge to the government. Senator BRANDIS-I just thought it might be helpful to indicate that, since it was Senator Faulkner's principal concern, as I understood it, that at least theoretically this could be an endless inquiry, from the point of view of at least the government senators, we will restrict ourselves to nominated or defined SIEV incidents and not go beyond that. Senator FAULKNER-My point is that in the terms of reference no such restrictions apply. Senator BRANDIS-We can narrow it by a self-denying ordinance. Senator FAULKNER-You can self-deny. Senator Brandis, if you begin to self-deny, that would be a step forward. CHAIR-Let me just go to the question from the Chair's point of view. It has been raised by Senator Ferguson-and it is a reasonable suggestion-that perhaps this discussion should continue in private if there is a desire to do so. Senator FERGUSON-It should not be on the public record. CHAIR-It may be that that is an appropriate place to continue this discussion. However, I raised the question of terms of reference because it goes to the jurisdiction of this committee. Term of reference (c) has been identified as the one in which this documentation would be allowable. I just want to state for the record that term of reference (c) was an amendment moved in the Senate by Senator Mason but foreshadowed to the committee and moved with the unanimous approval of the committee. It was accepted unanimously by the Senate. I also further want to observe that it reads: (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. CERTAIN MARITIME INCIDENT CMI 476 SENATE-Select Friday, 5 April 2002 That means we look at every single effort. This is indeed a very big inquiry, much bigger than the deadline we have allowed. It is much more exhaustive and demanding on the resources of the defence department and other agencies than we have privately considered was likely. That is the second point. The third point is that at this stage no-one has bothered to ask any questions about what were the operational procedures but rather to concentrate on what events did occur. There is a distinction between what this term of reference provides and where the line of questioning is going. I have been liberal about that interpretation but there needs to be a consideration to balance our timing against our objectives. When this term of reference was introduced it was represented to the committee that, for want of a better term, the Kevin hypothesis- Senator FERGUSON-I imagine you are now talking about discussions that took place at a private meeting of the committee. I do not think the public record is a place for that to be discussed. CHAIR-This is on the public record. I put it on the public record in the Senate when I made an explanation- Senator FERGUSON-I accept your explanation. CHAIR-as to the attitude of the opposition in accepting the terms of reference. I want to simply go to that and say that the Kevin hypothesis was presented to the committee as the basis for the need for this term of reference. I do acknowledge that Senator Mason has asked questions concerning that. Senator MASON-Yes. CHAIR-If that was the intended reason for this term of reference, precious little attention is being paid to what I thought was, and what the committee believed was, the need to clear the Australian Navy of any accusations that might be contained in, for want of a better term, the Kevin hypothesis. It was to set that thing to rest rather than to hold a wide scoping inquiry into every single event. I hope we have not been misled about that and that is still the intention of this provision. I do think that this provision is now being expanded to be more than what was meant. I do share the concerns expressed by Senator Collins about material coming forward in a piecemeal manner and late in the day. If that were to continue, my intention would be to slow the proceedings to enable the committee to digest that material and be primed to properly examine it with witnesses that appear before us. I do note that the chief of staff of the minister has written to Mr Holmes, the secretary of the committee, querying what it is that we want when we ask for all material to be available and saying that they will respond to specific material. I do think it is appropriate for the committee to note that any material relative to our terms of reference should be made available, lest the de- fence minister be subject to a suspicion that he is providing selective material to suit a case that he might wish to present, rather than enabling this committee to conduct an inquiry into what did occur. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 477 Having said all that, and having heard the views of the committee, the position of the committee is that we should proceed in this manner. I also think that this matter should be pursued further in private discussions. What we are now facing up to is a much more expanded inquiry and almost an incident by incident in-depth analysis, which will tie up resources not only in the Senate but in the defence department and elsewhere to a considerable degree. I am not entirely sure that that was in the mind of the Senate at the time that we adopted the terms of reference that we have. Senator BRANDIS-Mr Chairman, I know you rule but may I say two things to this, if only as deputy chair? CHAIR-Yes. Senator BRANDIS-Firstly, I recall that Senator Mason, when he proposed this amendment to the terms in a private meeting, did refer to Mr Kevin's allegations. I did not understand him to be limiting himself to that and indeed, I recall him saying that he was in general concerned that the repute of the Navy, in the manner in which it dealt with these incidents generically, had been put in issue. In fairness to the Navy, the Navy ought to have the opportunity to respond to the suggestion that it had handled itself less than fully professionally as it should have. In any event, whatever may have been in Senator Mason's mind, when I supported the adoption of term of reference (c), I did so because what I wanted to explore were the operational procedures observed by the Navy and relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering, or attempting to enter, Australian waters. I have indicated to you today that I will restrict myself to the 12 SIEV incidents. In order to explore that, obviously and consistently with your earlier and, with respect, correct rulings on relevancy, it is necessary to establish to a degree the factual substratum, or the factual context, in which these events occurred. To that extent I adopt what Senator Collins has had to say. Finally, I initiated the request for information, including source documents, from the Minister for Defence. I have met with some success, as you know. As I read the minister's most recent communication to the committee, that would appear to me to exhaust that line of inquiry. In other words-although I don't know this for sure-I am not anticipating any further documents along that line of inquiry. If the concern is-to use an expression that has been used-the drip feeding of documents, I think all the documents that that line of inquiry was likely to produce have now been exhausted. Senator FERGUSON-I would like to make a very brief comment. We have been here for 40 minutes with a witness sitting before us, essentially discussing what I think are private meeting matters. I believe we should get on with the questioning of the witness. If we are going to have any further debates about this, they should be held at another time other than when we have a witness sitting before us. CHAIR-In response to the last question, which was more in the form of a point of order, our terms of reference are published, we are a public hearing and how we view our terms of ref- erence is a matter of public importance. If this inquiry is thought to have deviated from its terms of reference then there ought to be some explanation as to why we think the way we do-if we do. I think it is an entirely inappropriate conversation to have in public but, I do think having CERTAIN MARITIME INCIDENT CMI 478 SENATE-Select Friday, 5 April 2002 put our views down, we should proceed. This matter can be dealt with further in a private meeting. Senator FERGUSON-I agree with that. Perhaps I should also say that the original terms of reference were drawn up without any consultation with government senators whatsoever. Amendments to those original terms of reference are only made by unanimous agreement between members of the committee, and I think we should proceed on that basis. CHAIR-I do not know whether you want to go down that course but, if you do, I would be bound to observe that you voted against them completely, without any consultation with the movers either. We both know that the opportunity for consultation on matters of this nature exists and is routinely resorted to in the Senate. I think that means that we are at a position to consider the release of the documents that have been tabled. What is the wish of the committee? Senator BRANDIS-I suggest that they be released, which is consistent with the view that the committee has adopted with bipartisan support in relation to earlier tranches of documents. Senator JACINTA COLLINS-Sorry, which documents are we releasing at this point? Senator BRANDIS-I assume that they are the documents that have been produced by Rear Admiral Smith. Senator JACINTA COLLINS-The problem is that we have one document but we do not have the others yet to see. CHAIR-I am only dealing with the first document at this stage. Senator BARTLETT-The event summaries. CHAIR-The event summaries 1 to 12. Senator BRANDIS-Mr Chairman, I propose that event summaries 1 to 12 be released. CHAIR-Is there any disagreement? There being none, it is so ordered. Is your second document the minutes to the Chief of Navy, Rear Admiral? Rear Adm. Smith-Yes. The provision of that document satisfies the question on notice from Senator Collins. CHAIR-Is it agreed that we release this document? There being no opposition, it is so agreed. Senator JACINTA COLLINS-I am sorry; I am still trying to work out what additional information is in this document as opposed to the first one. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 479 Rear Adm. Smith-The document that I provided is the document that I produced in response to a direction from the Chief of Navy. That document was provided and the Titheridge document was drawn directly from my work. Senator JACINTA COLLINS-Fine, thank you. Senator BRANDIS-It is similar to the Titheridge document. Rear Adm. Smith-It is exactly the same. Senator JACINTA COLLINS-Okay, that is my point: is it the same document? Rear Adm. Smith-In terms of the explanation of the events it is the same that is produced here. Senator JACINTA COLLINS-Can you explain to us the difference between the two? This was the issue that was originally discussed. Rear Adm. Smith-I received a telephone call from the Chief of Navy prior to the production of this document. He had had a conversation with the Chief of the Defence Force. He directed me to seek information from all naval units that had been involved in Operation Relex, and asked me some particular questions which are contained at the front of that document in paragraph 2. I sent a defence message to all the ships involved in the operation asking them to report back, and they did so. In the enclosures of this document are the responses from the various ships that were involved in Operation Relex and who had information concerning the use of children who had been either threatened, actually harmed or thrown overboard. Senator JACINTA COLLINS-I am sorry-I have not revisited the Hansard on this issue-but at the time there seemed to be some uncertainty over the formatting or some difference in the arrangement which was why I requested the original. Can you take us to what those differences are, if any? Rear Adm. Smith-The sequence is a little confusing in the sense that I have reported these ship-by-ship rather than in a chronological order. Senator JACINTA COLLINS-It was not quite chronological either, was it? Rear Adm. Smith-I am not sure about that, Senator, but certainly the way I presented it was ship-by-ship reporting which does tend to confuse. That is why I thought my matrix may have given a bit more clarity to the sequence. Senator JACINTA COLLINS-This document is essentially the same as the Titheridge document? Rear Adm. Smith-It is the source document that formed the basis of the Titheridge submission to the minister. CERTAIN MARITIME INCIDENT CMI 480 SENATE-Select Friday, 5 April 2002 Senator JACINTA COLLINS-There is no real difference in content or order? Rear Adm. Smith-No, the staff have checked the words in my document with the words in the Titheridge document and they are the same. Senator JACINTA COLLINS-I have no objection. CHAIR-No objection. Rear Adm. Smith-Mr Chairman, there is one point I need to clarify. There was an error in the document that we provided, which is enclosure 9 to this document, which is the report by HMAS Bunbury. Both Bunbury's signal and my summary of that signal are here. They refer to SIEV6-in fact, that should be SIEV7. Senator JACINTA COLLINS-Which the later document clarified as well. Rear Adm. Smith-Yes. CHAIR-Then you have got this matrix? Rear Adm. Smith-That is correct. CHAIR-We have now agreed to release that second document. Senator FAULKNER-Just so that I am clear, Admiral Smith, this minute is one that you effectively developed as a result of a request from the Chief of Navy? Rear Adm. Smith-That is correct, Senator. Senator FAULKNER-Do you know the background to that request from the Chief of Navy? Rear Adm. Smith-The only background that I am aware of was that Admiral Shackleton told me that he had had a discussion with the CDF and that out of that discussion this requirement was generated. Senator FAULKNER-Do you know the date of that? Rear Adm. Smith-If you look at the minute to the Chief of Navy, you will see reference A `MCAUST message', and that is dated 20 February. If my memory is correct, that was the day I also received the direction from the Chief of Navy. We sent the signal on the same day. Senator FAULKNER-Am I right in thinking that was the same date, 20 February, when the Senate estimates committees were dealing with Defence? So you do not know whether the request originated with Minister Hill or not? You just know that it came from CDF-from the Defence chain of command? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 481 Rear Adm. Smith-That is correct, Senator. Senator FAULKNER-We should be able to establish this fairly quickly, but would you mind taking on notice the question of whether CDF generated that request on 20 February-the day the Senate estimates were meeting-or whether it was as a result of a ministerial request? Rear Adm. Smith-I will certainly do that, Senator. Senator JACINTA COLLINS-Chair, there is one further point I want to clear up about the documentation. Rear Admiral, we also have references here to statements from the Arunta. We have a letter from the minister to Senator Brandis indicating some information relating to those incidents but we still do not have any statements. Do you have those statements with you? Rear Adm. Smith-No, I do not, Senator. Those statements do not exist. The signal that came from Arunta in response to my request for this information contained advice that statements supporting the incidents which they describe were held on board. Subsequently, the Commanding Officer looked into that matter and came to the conclusion those statements did not exist. So that was an error in the provision of their information. That error was contained in my submission and also contained in the Titheridge report. Senator JACINTA COLLINS-So the clarification is that the Titheridge report referred to `statements', but they do not exist. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-So the report was incorrect in that respect. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-Instead of those statements, the only references we now have are from the Arunta ADA/LAB in a letter that has not yet been tabled, I think, by the minister. How would you describe these reports-Arunta ADA/LAB? Rear Adm. Smith-That is an official signal from HMAS Arunta in response to my call for information. Senator JACINTA COLLINS-From your signals; can you make available to us the full signals? Rear Adm. Smith-Yes, I do have that signal here. Senator JACINTA COLLINS-Was there just the one signal? There are three different references: Arunta 13M, Arunta something else-I cannot read it-and the next one is 13M as well. CERTAIN MARITIME INCIDENT CMI 482 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-I misunderstood what you were saying. In that particular document there that has been provided, those signals are here and are available to present to the committee. They support those ones in italics. Senator JACINTA COLLINS-Yes, that is what I am asking for, the full context of these references in italics, if you could provide those as well? Rear Adm. Smith-Those italics references are here. Senator JACINTA COLLINS-Thank you. Senator BRANDIS-Rear Admiral Smith, just so I can get that clear beyond question: in relation to Arunta incidents 2, 3 and 5 referred to in the Titheridge memorandum, which I gather are the same as Arunta incidents 2, 3 and 5 referred to in your minute, the source documents proving those events are signals not witness statements? Rear Adm. Smith-That is correct. Senator BRANDIS-And you have those signals here? Rear Adm. Smith-They are these here. Senator BRANDIS-Thank you. Senator FAULKNER-Pursuant to the questions I was asking you before, Rear Admiral, in the spreadsheet it kicks off with the SIEV event and says Tampa in pen script. Can you explain to me why that inclusion is there in pen? Rear Adm. Smith-That is my own handwriting. It was to remind me of the dates of the Tampa activity prior to the commencement of Operation Relex, which followed Tampa. Senator FAULKNER-I see. So what you have done is put Tampa and put the dates there and, chronologically, the other SIEV events? Rear Adm. Smith-That is correct. Senator FAULKNER-It is just a memory jogger, is it, basically? Rear Adm. Smith-Exactly. Senator JACINTA COLLINS-Chair, while we are still clarifying what documentation we have, the letter I referred to earlier-which was provided to members of the committee I think through Senator Brandis-includes witness statements relevant to this overall evidence as well and I think it should be released also. CHAIR-Let me take these matters in order, and that will go on the list. We have now agreed to the release of the second document, which is the minute. The third document is this- CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 483 what did we call it?-matrix. I seek from the committee an indication if there is any objection to the release of this document? Senator FAULKNER-I just note that this begins with the Tampa on 27 August. My suggestion before about the fact that there are no time limitations on the terms of reference was not a suggestion that we go back to His Majesty's barque Endeavour-some people might define that as a suspected illegal entry vessel. CHAIR-You would have to go back to Indonesian and Malay fishing vessels entering Australia in the 12th century, if you wanted to go right back. Senator FERGUSON-You would have trouble getting witnesses! Senator FAULKNER-Oh, I do not know-we could dig away, Senator Ferguson. I just note that this document has that particular starting point. While the terms of reference might be silent on this, I think it would be sensible for us to interpret the terms of references as really relating to the role of Defence and government agencies in Operation Cranberry. I do not think it would be sensible for us to go beyond that. Senator BRANDIS-Operation Relex. Senator FAULKNER-No, Cranberry-I am saying that deliberately because I have heard what the rear admiral has said about the interface between Relex and Cranberry. CHAIR-For the sake of clarity of the record, there is a document-I will come to yours in a minute, Senator Collins-we keep talking about as the Titheridge report or, in some other formulation, the Titheridge memorandum or memo. Senator MASON-Or Titheridge minute. Senator JACINTA COLLINS-I think we should amend that and call it the Smith report now. CHAIR-We have released this document. It is the document headed `Australian Defence Headquarters, Strategic Command: Minute'. It has a prominent heading `Unauthorised arrivals information' and it has the reference: `Telcon COS MINDEF/CN SEC 28 Feb 02'. That is the document we are referring to as the Titheridge report, memo or minute. For the sake of clarity, Rear Admiral Smith, can you tell us what the reference `Telcon COS MINDEF/CN SEC 28 Feb' means? Rear Adm. Smith-That would be a telephone conversation between the chief of staff to the Minister for Defence and the secretary to the Chief of Navy. CHAIR-Do we assume, therefore, that the so-called Titheridge report, memo or minute, is a document requested by the minister's office, or by the office of the minister's chief of staff, from Air Vice Marshal Titheridge-that it is not something he has done himself? CERTAIN MARITIME INCIDENT CMI 484 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-You could draw that conclusion, Senator, but to confirm it you would need to speak to Air Vice Marshal Titheridge himself. Senator FAULKNER-I thought my question on notice dealt with that. Are you now drawing a distinction between your minute and the Titheridge report? Do you think it is reasonable to draw a distinction, given the background, between your minute and the Titheridge minute? Rear Adm. Smith-I can only comment with certainty on what generated this report in the first instance, which was a telephone call I had from the Chief of Navy directing me to obtain this information. Senator FAULKNER-There is no doubt in my mind what the situation is here, but I think it is important, Mr Chairman, that the question on notice that I asked about the Maritime Commander's minute might well also apply to Air Vice Marshal Titheridge's minute. CHAIR-Yes. Senator FAULKNER-I think we should be able to ask if Defence could respond quickly to that, so that we understand the background and the timing-the timing is the other crucial issue in relation to this. I think we know what we have here, but we may as well get it clear. CHAIR-Rear Admiral Smith, my only other question is this: when you were directed to prepare your report, were you directed as to exactly what issues were to be reported on, or were you given open discretion to report on all matters? Rear Adm. Smith-No; I was given specific questions. On my report, which you now have, the specific questions that I was given are at para 2. Senator FAULKNER-Those questions came from the Chief of Navy? Rear Adm. Smith-That is correct. CHAIR-We have not formally dealt with the release of the matrix. Is there any objection now as to why it should not be released? There being no objection, it is so ordered. Senator FAULKNER-So that I am clear, Rear Admiral, when was the matrix actually created? Rear Adm. Smith-It was created as I prepared for this inquiry, drawing upon all the source documents-some 1,700 of them. Senator FAULKNER-And I assume from what you said before-but one should not rely entirely on assumptions-that it was basically your own initiative to draw up the matrix. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 485 Senator BRANDIS-Further to that question, Rear Admiral Smith, do I take it that the matrix really serves two purposes: first, to display in tabular form different characteristics of each of the SIEV instances; and second, by reference to the various footnote references, to refer each of those incidents to the source document? Rear Adm. Smith-That is correct. CHAIR-We are all done on that issue. Senator Collins, as I understand it-correct me if this is wrong-you have requested, first of all, the document we have before us from the Minister for Defence, which has not been released. Senator JACINTA COLLINS-Yes. CHAIR-Subsequent to that, you have requested from Rear Admiral Smith the Arunta signal. We now have that document before us. Senator JACINTA COLLINS-Yes, that is right. I have not had a chance to look at the signal yet. CHAIR-With respect to the first document, the letter from the Minister for Defence, our concern has been to be careful to ensure that what is released does not contain any matters of security. I am a bit uncertain-and I need some advice on this-as to whether or not that document has been given a security clearance, because that would seem to me to be the only reason why it is being held up. Senator BRANDIS-I think the document in fact refers to Rear Admiral Smith being, as it were, the custodian of the source documents referred to within it. I am not sure if this is so, but perhaps Admiral Smith can tell us the answer to that. CHAIR-I have just been advised that we have received advice from the responsible figure in the Defence liaison team that this document is clear from the point of view of not inadvertently disclosing sensitive material. Consistent, then, with the usual practice, is there any objection to this document being released? There being no objection, that is so ordered. That includes the covering letter. Senator JACINTA COLLINS-On the next one, Chair, I just need to clarify with the Rear Admiral exactly what this signal is. It appears to me, on looking at it, that this signal-the first of the two given to me-is the Arunta's response to your request? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-So, in one sense, it still remains secondary in nature-it is not the primary source of the claims? Rear Adm. Smith-The incident that this signal is supporting is incident 2 of Arunta. There was no operation report submitted on that particular incident. We do not always capture every single activity in an operational report. In this particular case that was not captured in such a CERTAIN MARITIME INCIDENT CMI 486 SENATE-Select Friday, 5 April 2002 source document, and this was drawn from their own records from the ship and that is why we put forward as the basis- Senator JACINTA COLLINS-What I am asking for are the primary records. Rear Adm. Smith-We would need to go to the ship, then, and draw that from the ship. Senator JACINTA COLLINS-Okay. Is it possible to get a photocopy of the relevant excerpt from the log, or whatever it is that we are referring to? The first report told us that it was a witness statement; we have now been told it is not a witness statement. Instead, we are given simply the Arunta's response to your request for information. We still have no primary material to sustain the claim. I would like to see what primary material exists, if any, to sustain the claim. Rear Adm. Smith-I can provide that by going to the ship, Senator. Senator JACINTA COLLINS-Can you tell me what it is? We now know it is not a statement. Is it the log? What is it? Rear Adm. Smith-I will take that on notice. Senator JACINTA COLLINS-Okay. So that is incident 2. What about incident 3, the strangulation: what primary material is there in that respect? Rear Adm. Smith-On the incident that you refer to, the primary document is the one that I provided, which is the operational report from Arunta which was produced as the incident unfolded. That contains- Senator JACINTA COLLINS-Okay. That is a live time one? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-The fifth one, incident 5: what is the primary material for that? Rear Adm. Smith-Again, that is the signal that I provided to you. It is the operational report as that incident was occurring and it contains the information in there. Senator JACINTA COLLINS-I am sorry, that is another document that is there as well. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-Thank you, that clarifies that. CHAIR-Are we now resolved that the signal that has been tabled be released? There being no objection, that is so ordered. Are there any other matters before I hand the call back to Senator Bartlett? As there are no other matters, I call Senator Bartlett. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 487 Senator BARTLETT-I will start the questioning then, and I will not be going to these documents for the moment but to the bit of clarification that you provided about international law. You may want to take this on notice because I do not expect you to be an interpreter of the law. You have outlined that it is incorporated in the Commonwealth Navigation Act and I was wondering if you could inform us whether the requirements of that act are overridden in any way by the border protection legislation passed last year which, as I recall, contained clauses to the effect that this act overrides every other act. Rear Adm. Smith-From my perspective, I am not aware of the border protection legislation in any way overriding the duty of responsibility for mariners under the conventions that I have quoted to you. Senator BARTLETT-Again, I am not in any way suggesting that Navy would ignore people at sea. I am just trying to verify the legal component of it under Australian law. We touched briefly yesterday on the offloading of people off the Manoora onto Nauru. You outlined a bit of the difficulty there and the role of the IOM in taking responsibility for the people. I am just wondering about the jurisdictional issues: at what stage do the people cease to be your responsibility and at what stage do they then become the responsibility of another organisation or another nation? Is that detail reflected in any way in the agreements that have been reached by the Australian government and the PNG and Nauru governments? Rear Adm. Smith-I cannot comment on the government to government agreements that underpinned this operation as I had no visibility of them. From the operational perspective, which I can speak about, the responsibility for the wellbeing of the unauthorised arrivals was transferred to the IOM on discharge of those people from the ship's boats. Senator BARTLETT-And what is your understanding of the legal status of the people whilst they are on the Manoora or various other ships when you have boarding parties on board and that sort of thing? Rear Adm. Smith-Could you just clarify that question? Senator BARTLETT-We will just leave boarding parties to one side for the moment. You say you have custody of people when you have taken them on board a navy vessel. What is their legal status in that sense? They are obviously not in Australian waters so they are not in a situation where they are unauthorised non-citizens. Do they have a particular status in terms of being people on board someone else's vessel? Rear Adm. Smith-I am unable to comment on the legalities that underpin this operation and the status of these people on board. The way we approached it was that we had responsibil- ity for their wellbeing whilst they were on board the ship and we discharged that responsibility. You would need to talk to others about the legal aspects that underpin this. Senator BARTLETT-Just in terms of the range of your commands with Operation Relex, does that include all of the vessels patrolling the regions? Does that include the Orion aircraft as well as the Navy vessels? Rear Adm. Smith-Yes, it does, Senator. CERTAIN MARITIME INCIDENT CMI 488 SENATE-Select Friday, 5 April 2002 Senator BARTLETT-So you would be aware of what their movements are and what they see. They would be providing reports to you as well. Rear Adm. Smith-Yes, that is correct. There were RAAF P3s and there were also Coastwatch aircraft which were working to us for this operation. Senator BARTLETT-In terms of that and the evidence you gave last night on where you go to intercept a vessel, which is relevant to this vessel that sank and what reports came in and when, I noticed an article dated 3 September in the Australian last year by Megan Saunders- and it was contained in Mr Kevin's submission-which talked about the deployment of an extra five naval vessels and aircraft. It talked about the aim to patrol international waters as close as 30 nautical miles off Java. It quoted Minister Ruddock as saying that they had shifted closer to Indonesia. He said that until now patrols had operated closer to Australian territorial waters and went as close as 30 nautical miles. It sounds as though the new requirement is patrolling closer to Indonesia rather than hanging back to Christmas Island or Ashmore. I just want to jell that with what you were saying last night about how, if you knew there was a boat around, you would sit back and wait at Christmas Island rather than go towards it. Rear Adm. Smith-I understand where you are coming from. You must look at this operation in all dimensions. The air surveillance was being conducted up near the Indonesian archipelago as close as 30-odd miles and south from there. The ships, however, were positioned where we felt them best positioned to maximise our chances of interception. So the whole layered surveillance operation was operating more deeply than previously, but the ships more often than not-and it varied from day to day-were closer to Australian territory. Senator BARTLETT-So those surveillance aircraft that were closer to the Indonesian coast were not aware of that vessel that departed that sank? Rear Adm. Smith-At no time under the auspices of Operation Relex were we aware of the sailing of that vessel until we were told that it had in fact foundered. Senator BARTLETT-I go to the minute you provided this morning, that we have now released, titled, `Request for information-SIEV/SUNC incidents'. I think that is consistent with what you said last night, but I would like to specifically mention it because the information was sought for all ships that have been participating in Operations Relex and Cranberry. Can you remind me what Operation Cranberry is? Rear Adm. Smith-Operation Cranberry is the ongoing operation-it has been going for many years now and continues today-which is the ADF support for the national surveillance effort, which is coordinated by Coastwatch. Its function in the past has been primarily to deal with illegal fishing vessels-and that is also the operation that was dealing with the illegal entry people under the previous policy, which saw us intercepting reception and escorting to Australia for processing. Senator BARTLETT-So it covers quite a long period of time? Rear Adm. Smith-Yes, it does. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 489 Senator BARTLETT-Can you tell me precisely how long? Rear Adm. Smith-It would only be off the top of my head-and I could confirm it-but we are talking here five or six years, if not longer. I have just been told it started in 1989. Senator BARTLETT-So that is why we have the report from the Dubbo in there from 1989? Rear Adm. Smith-That is correct. Dubbo was involved in Relex and, when I asked the question of them, they answered with that information. It was not part of the period we were looking at, but they gave it to us anyway. Senator BARTLETT-You are saying it is not part of the period you were looking at, but Cranberry goes back to 1989. You have said you were looking for Relex and Cranberry. Rear Adm. Smith-No, the questions I was asked to get the information on specifically were to do with Operation Relex. Senator BARTLETT-Would you clarify then the minute we got this morning? It says: Following direction from the Office of CN- Rear Adm. Smith-I stand corrected. It did include Cranberry. Senator BARTLETT-We have one incident from the period of Operation Cranberry from 1989 to September 2001 and then a number of other incidents-10 or so-that all occurred in the couple of months following, which leads me to paragraph 4 of your minute. It reads: It should be noted that the lack of incidents prior to OP RELEX could be attributed to the change in Government Policy coincident with the arrival of the TAMPA. Paragraph 5 reads: This change has proven to be confrontational and resulted in the numerous hostile threats and violent actions taken by the PIIs during OP RELEX that had not previously taken place. I take that as a pretty clear statement that the more confrontational government policy has resulted directly in the new appearance of hostile threats and violent actions. Rear Adm. Smith-That is my assessment. Senator BARTLETT-It is probably worth noting that a statement has been provided to us by Lieutenant Commander Lorrae Blunden from HMAS Dubbo, who is reasonably senior. Rear Adm. Smith-That is correct. I believe she was the executive officer at the time and the boarding officer who conducted the boarding for that particular activity. Senator BARTLETT-I will just read a bit from her statement in relation to a boarding party of a vessel at Ashmore Reef involving 352 unauthorised arrivals. The statement reads: CERTAIN MARITIME INCIDENT CMI 490 SENATE-Select Friday, 5 April 2002 `...as we approached ... I was assailed by a wave of human voices ... calling out ... "Help us". "Please help us" ... two hundred or more people crowded on the upper decks. ... ... ... At no stage did I believe they were threatening or likely to deliberately throw their children into the water. ... ... ... In relation to the current situation- that is, the current policy now- I remember being surprised at reports that the parents had so callously risked the lives of their children. In my dealings with the SUNCS ... I have generally found them to be quite attentive and concerned parents. They are certainly excitable, and volatile and obviously extremely desperate (they make shocking use of emotional blackmail), which leads them to do unsafe and reckless things, however I can honestly say that I have never witnessed any act of deliberate harm perpetrated against one of their children. Is that a correct reading of that statement? Rear Adm. Smith-That is correct, Senator. Senator BARTLETT-I recognise that it is not your place, and it should not be our place either, to make character judgments about the various boat people, so I will not ask you to do that. But, in essence, I think that would reinforce the view you have expressed: that the behaviour and the appearance of new types of behaviour-violent actions and hostile threats- is not anything to do with the level of people's care for their children or for others but is to do with the increased confrontational nature of the government's policy. Would that be correct? Rear Adm. Smith-It is certainly fair to say that the change in the behaviour pattern of these people is directly linked to the change in the attitude of the Navy, generated by the policy that was implemented. As I said in my opening statement, prior to 3 September, it was a fairly benign environment because the Navy was intercepting and escorting these people to Australia. In other words, they were achieving their objective. After 3 September, the Navy was there to prevent them from achieving their objective. CHAIR-Just to get this into context, Rear Admiral, you mentioned last night that some of these people were Afghanis and Iraqis. You drew distinctions between the behaviour of both those ethnic groups, given where they were confined to in the vessel. What was that vessel? Rear Adm. Smith-That was HMAS Manoora. CHAIR-We were officially at war at that time, were we not, with the Taliban regime in Afghanistan? Rear Adm. Smith-Certainly, it was at about the same sort of time, yes. CHAIR-We were at war with the government of that country. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 491 Rear Adm. Smith-I do not think we ever declared war, but we were certainly beginning to consider contributing to the coalition against terrorism. CHAIR-I thought the Prime Minister had invoked the ANZUS Treaty, in support of the US President when he declared his global war on terrorism, and that we had identified the Taliban regime and the al-Qaeda movement-that was given sanctuary by the Taliban regime in Afghanistan-as a source of that war, and that we were conducting armed action against them in Afghanistan at the time. Rear Adm. Smith-It is not my prerogative to discuss the interpretation of ANZUS. That would be best taken to the Prime Minister, I suspect. We had not committed forces to that operation at the time of SIEV4. CHAIR-But whether we had committed forces or not, we were gearing up to do so. At that time we had publicly committed ourselves-and it was a bipartisan commitment-to take military action in this global coalition against terrorism. Had we not? Rear Adm. Smith-Certainly that is on the public record. CHAIR-So, leaving aside the question of whether their entry to Australia was legal, these people were refugees in flight from a regime that we had publicly identified as associated with international terrorism. Senator FERGUSON-Some were refugees. CHAIR-I take that interjection; some were refugees. Probably the correct answer is at this stage it is not certain who has been given refugee status. Senator FERGUSON-They are not all refugees; some have been sent back. CHAIR-Have any of them actually been returned? Senator FERGUSON-Some people have been returned to their country of origin, yes. CHAIR-Let us go to that point because that is a question of detail. My point is that, as far as we knew, these were people presenting themselves to our border in a manner that we regarded as improper and illegal and not through the proper channels. Nonetheless, they were from a country whose government we were gearing up to participate in a global coalition against. That is a matter of record, isn't it? Rear Adm. Smith-Yes. CHAIR-In the case of the Iraqis: Iraq is a country that has been identified by President Bush-and supported, in my view quite appropriately, by the Prime Minister-as a country that is a member of the axis of evil, as it was termed. It is also a country on which we were effectively conducting blockades, as part of a joint allied military presence in the Gulf. This is the country led by Saddam Hussein, against whom we have conducted military action in the CERTAIN MARITIME INCIDENT CMI 492 SENATE-Select Friday, 5 April 2002 past. These people that were identified by you as Iraqis were in flight from that despotic and tyrannical regime, were they not? Rear Adm. Smith-I cannot comment on what motivated these people. You are talking about policy things here, which are not my domain. I made the observation of the ethnic grouping because that was in fact the way they were gathered on board Manoora. The second group, from the Aceng, were from Iraq. What their background was, I have no idea. And I have no understanding of what subsequently happened to them in terms of their claim for refugee status. That is just beyond my remit. CHAIR-At that stage, they were under the presumption-a presumption similar to the presumption of innocence-that they had claims for refugee status which we have later given serious attention to settling. Therefore we have not turned them back and said, `You have no account.' The Navy was aware of that contextual arrangement. My question is: did that weigh in your considerations about how you should deal with these people, in any way? Rear Adm. Smith-No, it did not, Senator. My mission was to intercept, and that is exactly what we did. The status of these people was irrelevant as far as I was concerned. They were unauthorised arrivals and we were dealing with them in that context. CHAIR-So whether they had any justification for seeking international asylum from the tyrannical or despotic regimes in the countries in which they lived, that was not a matter of consideration for you? Rear Adm. Smith-That was not my business, Senator. Senator FERGUSON-Are you telling the committee that, as far as you were concerned, it did not matter whether these people were refugees or alleged refugees who were fleeing a des- potic regime, as Senator Cook puts it, or in fact people who were trying to circumvent our im- migration system by paying large sums of money to illegal smugglers to get them to Australia? Are you saying that those criteria made no difference to your decisions or your actions? Rear Adm. Smith-My job was not to differentiate, my job was to intercept and to enforce the government policy, and that is what I have done. Senator BRANDIS-The position, as I am sure you understand it, is that people claiming to be refugees are not people with refugee status. Refugee status under both international and domestic law is a status which is conferred by relevant municipal authorities. None of the people on the SIEVs had refugee status, though we apprehend that most, if not all, of them were claiming to be entitled to it. At the stage your crews had something to do with them, they were not people enjoying refugee status. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-Senator Bartlett had actually paused for a moment and was allowing me to follow up a Dubbo incident- CHAIR-Let me finish, because I have not concluded. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 493 Senator FERGUSON-We all took advantage of the fact that you had interposed your question. CHAIR-I know, but my interposing had not concluded. Senator BARTLETT-I could interpose by saying that the whole purpose of their being intercepted is to prevent their refugee status been determined. Senator BRANDIS-That would not be right, Senator Bartlett, because in the place they came from, Indonesia, they were under the jurisdiction of the United Nations High Commissioner for Refugees. Senator BARTLETT-Not necessarily in each of those cases, but I think we have followed this far enough. CHAIR-I want to go to your answer. Enforce and intercept was your mission, which is clear enough, understandable and quite appropriate. But in the conduct of that mission of enforce and intercept the Navy had regard to conducting itself in a manner that would not inflame the situation, that would not cause unnecessary injury or violence and matters of that sort. I guess my line of questioning goes to the understanding the Navy may have had about how desperate these people may have been. I am grateful to Senator Bartlett for giving me the opportunity, but it fits into his line of questioning about trying to get the actions of these people in some sort of context. I empathise with someone fleeing from Saddam Hussein or the Taliban and seeing Australia as a safe haven-quite in breach of our laws, which is accepted, but from their perspective. When the toughened rules came into play, what weight did you give to the fact that this may increase the desperation of these people? Rear Adm. Smith-We placed considerable weight on that issue. In our military apprecia- tion process in planning this operation we need to assess the likely courses of action of the peo- ple that we are dealing with, and we made the assessment that increasing levels of aggression and increasing levels of behaviour specifically designed to intimidate our sailors and specifi- cally designed to place pressure on our moral and cultural values would be a manner in which some of these people would behave. That is what we anticipated and that is what we found. CHAIR-So it does weigh with you not in what your mission is, because that is a stated fact and that is your goal-and that is something in which I fully support you-but in the conduct and management of your mission the fact that they were Afghanis on the run from the Taliban or Iraqis on the run from Saddam Hussein, that they had cultural differences as well and that these were clearly desperate people. In terms of how you manage what would therefore be a volatile situation, those factors were considered. Rear Adm. Smith-Yes, they were, Senator. Senator FERGUSON-I want a further clarification on the chairman's question in relation to desperation. Isn't it also possible that the people you intercepted were desperate because in fact they had paid people smugglers an enormous amount of money in many cases to get them to Australia and the very fact that the defence forces were intercepting them meant that they were going to actually get no value for their money because they were not going to get to CERTAIN MARITIME INCIDENT CMI 494 SENATE-Select Friday, 5 April 2002 Australia? Their desperation might not necessarily have been because they were fleeing from a despotic regime but because they were trying to circumvent our immigration program by paying people smugglers to get to Australia and they could see that, despite the money that they had outlaid, they were not going to get there because you were frustrating their attempts to get to Australia. So there is more than one type of person that you are intercepting on the boats that are attempting to come to Australia. Rear Adm. Smith-You could form that view. CHAIR-That is calling for an opinion, Senator Ferguson. Senator FERGUSON-Yes. CHAIR-Let us be very clear here: you give your life savings to get to Australia- Senator FERGUSON-How do you know that they are their life savings? CHAIR-to a criminal who is a people smuggler- Senator FERGUSON-You say that they have put all their money up front. CHAIR-because you are desperate to get away from Saddam Hussein or the Taliban. Senator FERGUSON-Not necessarily `because'-they are desperate afterwards. CHAIR-That was simply what I was saying. Senator BRANDIS-In fairness to the witness, it is perhaps a little bit- CHAIR-In fairness to the witness, we are conducting a debate which we should conduct between ourselves in another forum. Senator FERGUSON-You started it. CHAIR-No, my questions were about how the Navy evaluated their handling of the situation and- Senator FERGUSON-You embellished it by talking about desperate people. CHAIR-what weight they gave to the circumstances these people were in when they presented themselves to the Navy at our international border. Senator Collins, you had some questions. Senator JACINTA COLLINS-Rear Admiral Smith, to go back to the HMAS Dubbo incident that Senator Bartlett mentioned and the witness statement he was referring to there, that witness statement does not seem to sustain what is in your reporting in enclosure 8 or what was in the Titheridge report. I have now worked out what the difference is between the two CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 495 documents in enclosure 7. The order between the two documents is, it appears, a bit different, and I am not sure why yet. But if we go to your enclosure 8, because I think the content is essentially the same, it indicates: Holding children over the vessels side as BP approached. Not clear to BP whether this was undertaken in a threatening manner or to merely indicate that children were on board SIEV. The witness statement, I think, is quite clear-the witness does not believe it was in a threatening manner. So I would query how that statement is sustained from primary source material. I wanted to trace that incident through to your matrix and ask whether, on the last page of your matrix in relation to SIEV7-I am sorry, that is the Bunbury; where is the Dubbo? Rear Adm. Smith-It is not on that matrix because the matrix only covers Operation Relex, SIEV1 to 12. Senator JACINTA COLLINS-So this particular incident is not in it? Rear Adm. Smith-No, it is not in the matrix. Senator JACINTA COLLINS-If we go to another example then, which was the Arunta example- Rear Adm. Smith-Would you like me to answer the question that you gave me about the difference- Senator JACINTA COLLINS-Between the two? Yes, if you can. Rear Adm. Smith-With Dubbo? Senator JACINTA COLLINS-Yes. Rear Adm. Smith-I must admit that I do not interpret that there is a difference there. The boarding party from this boat consisted of half a dozen people. The one statement that we have here is from one of those individuals. The ship in responding have tried to summarise all the information that they have and they have tried to make it clear, in paragraph (b) of enclosure 8, that it is not clear what the motive was. Senator JACINTA COLLINS-I appreciate that, but what I am saying to you is that all of the primary source material that I have read-and I may be wrong, because I have read a lot of this stuff-in relation to that incident does not sustain a threat. Rear Adm. Smith-I think it is fair to draw that assumption. Senator JACINTA COLLINS-So where is the material that does sustain that threat, or that even suggests that threat, because it is not in the primary material that we have seen yet? Rear Adm. Smith-I think the enclosure on the signal that came from the ship in fact supports your position there, because it does not say that there was a threat. They were CERTAIN MARITIME INCIDENT CMI 496 SENATE-Select Friday, 5 April 2002 answering the question that I originally asked about whether there were any instances of children being held over the side. They said: Not clear to BP whether this was undertaken in a threatening manner or to merely indicate that children were on board SIEV. Senator JACINTA COLLINS-I appreciate that, but I am suggesting that what you have included here, as enclosure 8 on the signal from the ship, says, `It is not clear.' The primary material that we have-for instance, that witness statement-indicates that to her it was clear. I am asking where the primary source material is of someone who believes it was not clear. Rear Adm. Smith-We would need to go back to the ship then. There is one statement here from Blunden which you have. Senator JACINTA COLLINS-Yes. Rear Adm. Smith-There was also another statement from the commanding officer of Dubbo. Was it Dubbo? Senator JACINTA COLLINS-I do not think it was clear in Blunden either. Rear Adm. Smith-No, it is not. I think what they were trying to say was that it is not clear. Senator JACINTA COLLINS-But I am saying to you that I do not think Blunden even says that it is not clear. Rear Adm. Smith-That is her opinion. That was the way she interpreted that behaviour. Senator JACINTA COLLINS-Yes, but what I am saying to you is none of the primary source material says to us the statement in this report, which was: `To us, it was not clear.' We have one who says it was clear there was no threat. We do not have anyone who says it was not clear. Rear Adm. Smith-I can go back to the ship, but I suspect that we are not going to get any more than I have provided you here. That is their assessment now: that it was not clear. Senator JACINTA COLLINS-Okay, but we need to ask them what was the basis for that, because what has been provided does not sustain that- Rear Adm. Smith-That would take some time. We are talking three years ago and the ship's company has all changed over. None of these people are on board the ship anymore. We would need to go and interview them all. Senator JACINTA COLLINS-Senator Bartlett kindly gave me one opportunity to trace one of the cases through to the matrix. The case that I will ask you to go to is the Arunta. Rear Adm. Smith-Which SIEV is this? It would be easier if I went to that. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 497 Senator JACINTA COLLINS-I am looking at Arunta incident 4-so you tell me. We can both look at the same time. Rear Adm. Smith-Okay, that is SIEV6. Senator JACINTA COLLINS-It is SIEV9 by the Titheridge version of the report. Rear Adm. Smith-Okay, that is SIEV9. Senator JACINTA COLLINS-Yes. We have been given one witness statement in relation to this incident. The witness statement says that a woman with a child went to the side of the ship. Those are not the exact words. I will not go straight to the exact words just at the moment. My own notation at the time says that that does not necessarily sustain the claim here that one female threatened to throw a young infant overboard. On the basis of the information that has been provided to us so far, has that example made your matrix and, if so, where? Rear Adm. Smith-If the example of the threat to the child for SIEV9-in my matrix, a cross there refers to the threatened- Senator JACINTA COLLINS-Arunta? Rear Adm. Smith-Yes-strangulation issue- Senator JACINTA COLLINS-No. You have a threat one here too-X54 Rear Adm. Smith-Yes. Senator JACINTA COLLINS-Okay. Following this example, you have the threat of a child being thrown overboard with respect to either Arunta, Bunbury or Gladstone on your matrix, and you have referred to 54. If I go to 54, it says `SIEV 09A Folder-Serials 26, 48 and 77'. What does that mean? Rear Adm. Smith-It means that they are source documents. They are operational reports forwarded by the ship as the events unfolded. In the case of 48, which is supporting that particular claim, we read: PII women threatened to throw baby over side and was restrained by the tactical support element. Senator JACINTA COLLINS-Is that one of the operational reports you gave us earlier today? Rear Adm. Smith-No, it is not. Senator JACINTA COLLINS-It is another report again? Rear Adm. Smith-As I said, there are 1,700 of these operational reports and that is one of them. CERTAIN MARITIME INCIDENT CMI 498 SENATE-Select Friday, 5 April 2002 Senator JACINTA COLLINS-What I am trying to do is trace back an incident where, at this point in time, it is not clear that that incident is sustained by primary material, and work out whether-for instance, from what you have indicated here-there is other material that sustains it. Because at this stage the witness statement does not. Rear Adm. Smith-I understand that. There is other source material. Senator JACINTA COLLINS-Is that referred to here in 26, 48 or 77? Rear Adm. Smith-That is correct. They are the source material. They are the operational reports. Senator JACINTA COLLINS-Which one of those pertains, or do they all pertain, to the incident 4 case? Rear Adm. Smith-The SIEV9, the threat to throw the child over the side, is contained in 48. Twenty-six refers to the threat of strangulation. Seventy-seven refers to a male PII who threatened to throw his children overboard if he was not allowed to prepare his own meal. Senator JACINTA COLLINS-These sound like the ones we were talking about earlier- where the statements do not exist, but you gave us those additional operational reports. Rear Adm. Smith-That is correct. They are part of that material we provided-the italic references that were requested. Senator JACINTA COLLINS-So we have got serials 26, 48 and 77, which are separate to these operational reports? Rear Adm. Smith-No, a couple of those are the same. I would have to go through them. If you bear with me, I will just go through them now. Let us start again. No. 26- Senator JACINTA COLLINS-Yes, and 48 and 77- Rear Adm. Smith-No. 26 is, in fact, the second signal that I provided to you this morning. It is in response to the second italic reference, which is incident 3. No. 48 has not been provided to you. Senator JACINTA COLLINS-Could I ask for that then? Rear Adm. Smith-Yes, we can provide that. No. 77 was the third signal that I provided you with this morning. So the only one that you do not have is 48. Senator JACINTA COLLINS-Can I ask for 48, please? Rear Adm. Smith-Yes. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 499 Senator JACINTA COLLINS-Also, going back to my earlier question in relation to these incidents, since these cases are more recent and since we do not have the statements that were originally claimed to exist, can we have access to whatever primary source material sustains these reports-whether it is references to the logs or any other written corroboration for these reports on board the ship? Rear Adm. Smith-Can I clarify which report we are now talking about? Senator JACINTA COLLINS-I am talking about all of the reports that we are discussing now-26, 48 and 77. Rear Adm. Smith-Yes. Senator JACINTA COLLINS-Thank you. Senator BARTLETT-I would just like to clarify this as quickly as I can from the matrix. We have established that, in all of the time from 1989 to 2001 under Operation Cranberry, we have had one report from the Dubbo that talks about children being held up, but it specifically says, `I didn't believe they were threatening.' It makes the observation that they are obviously extremely desperate people. With the change in government policy and Operation Relex coming in, we have got a number of incidents and obviously a dramatic increase in aggressive behaviour. I do not want to be held to this, but my quick maths shows that, through all of the 12 SIEVs-including the additional people from the Tampa who ended up on the Manoora-we have 2,223 people. This became 2,224 when a baby was born on one of the transports, and two people died. We have the 397 people on the vessel that foundered before it got here, and there were 353 deaths and 44 survivals. We cannot say anything about whether or not they were go- ing to be aggressive. Out of all of those people, we have got one example where a child was dropped into the water, is that correct? Rear Adm. Smith-That is correct. Senator BARTLETT-Can I just go through and make sure that I have got the acronyms right, as much as anything? Rear Adm. Smith-Sure. Senator BARTLETT-I will do this very quickly but could you just confirm each one. SIEV1, as I understand it, is the Aceng. Is that right? Rear Adm. Smith-Yes. Senator BARTLETT-It had 228 people on board. It was intercepted `IVO', which means `in vicinity of'? Rear Adm. Smith-In vicinity of, that is correct. CERTAIN MARITIME INCIDENT CMI 500 SENATE-Select Friday, 5 April 2002 Senator BARTLETT-And AI is Ashmore Island? Rear Adm. Smith-Yes, Ashmore Island. Senator BARTLETT-They were then transported to the Manoora. SIEV2 was `intercepted aground' in the vicinity of Ashmore Island; `held in custody in 01' means in the old SIEV1? Rear Adm. Smith-That is correct. Senator BARTLETT-And then transferred to Tobruk. SIEV3, intercepted in vicinity of Ashmore Island, held in custody there at the lagoon and then transferred to Tobruk. Rear Adm. Smith-That is correct. Senator BARTLETT-The Tobruk then transferred those people to Nauru. SIEV4, which is the famous one we have looked at so much, foundered under tow. Boat people rescued and disembarked at Christmas Island. Rear Adm. Smith-That is correct. Senator BARTLETT-SIEV5, 238 people, including 29 children, was intercepted in vicinity of Ashmore Island, escorted to Ashmore Island lagoon to remain in custody before being removed to the IDTS. What is IDTS? Rear Adm. Smith-It is the Indonesian Territorial Sea. Senator BARTLETT-So they remained in custody on the SIEV5? Rear Adm. Smith-That is correct. Senator BARTLETT-In the vicinity of Ashmore Island or in the lagoon, is that territorial waters or contiguous zone? What is the status of that? Rear Adm. Smith-At this stage, the migration legislation had been passed and Ashmore Island was no longer within the migration zone. It was still, however, Australian territory and inside the lagoon meant you were inside territorial waters. Senator BARTLETT-So in all of these cases people would have been in Australian territory but not in the migration zone. Rear Adm. Smith-That is correct. Senator BARTLETT-SIEV6 intercepted in vicinity of Christmas Island and held in custody by Federal Police and AQIS. Attempt made to escort them to the Indonesian Territorial Sea, but vessel foundered, so they were returned to Christmas Island. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 501 Senator BARTLETT-SIEV7 intercepted in vicinity of Ashmore Island and taken to lagoon to be held in custody. Escorted to the Indonesian Territorial Sea in vicinity of Pepella. Where is Pepella? Rear Adm. Smith-That is the name of a town. We took these vessels back to where there was a population base. Senator BARTLETT-SIEV8, 31 people, including four children, was intercepted north- west of Bathurst Island and escorted to Ashmore Island, held in custody and transferred to Tobruk. SIEV9 was intercepted in vicinity of Ashmore Island, 152 people, including 45 children, transferred to Tobruk. SIEV10, 164 people, including 33 children, was intercepted in vicinity of Ashmore Island. That was the vessel that caught fire and sank. The survivors were transported on to the Tobruk. All of those people then transported to Christmas Island. Rear Adm. Smith-That is correct. Senator BARTLETT-SIEV11, 14 people, was intercepted in the vicinity of Ashmore Island, escorted to Indonesian Territorial Sea in the vicinity of Roti. Is that another town? Rear Adm. Smith-That is an island. Senator BARTLETT-SIEV12, 162 people. It does not specify how many children, if any. It was intercepted near Ashmore Island and escorted to near Roti Island. Rear Adm. Smith-Correct. Senator BARTLETT-We have SIEV5, 238 people, including 29 children. It says they remained in custody before being removed to Indonesian Territorial Sea. Did that occur? Rear Adm. Smith-Yes, it did. Senator BARTLETT-That one does not actually say that it was transported in the vicinity of somewhere. Did you just make sure that it did not come back? Rear Adm. Smith-No, it was not quite that simple. I am just trying to recall where we took that back. I know that SIEV5 ended up in Kupang in West Timor. I think we in fact returned this vessel near Roti, but I will confirm that. Senator BARTLETT-SIEV7, which was quite an eventful one by the look of it, actually ended up back in Indonesia? Rear Adm. Smith-Yes, that is correct, as did SIEV11 and SIEV12. Senator BARTLETT-Regarding the ones that do not specify the number of children- SIEV6 and SIEV12-is that because there were none or because that breakdown was not done? CERTAIN MARITIME INCIDENT CMI 502 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-My memory tells me that we just did not have the breakdown. I think that on every occasion there were children in these vessels. I can confirm that breakdown-if it is available. Senator BARTLETT-If we went through every incident one by one, it would have us here all year. You have been asked to prepare a report that looks specifically at any incidents involving children, which obviously gives a focus on particular aspects of the engagement. I want to get the fuller picture of how the engagement proceeds when you actually move to intercept a boat; some of the statements outline this. The vessel is usually intercepted by a boarding party boat and there are a number of warnings read to them. I presume that is a precise written statement? Rear Adm. Smith-We had a standard operating procedure, which we developed for this operation. That involved ships intercepting an illegal vessel, either primarily by the ship itself or after having been detected by the aircraft that were in surveillance. There were a series of warnings. We had no authority to board in international waters. As I have already briefed the committee, we were concerned that a safety of life at sea incident would be generated. The catalyst for the safety of life at sea situation would be the sight of a large vessel capable of taking those people on board. We deliberately kept the frigate over the horizon and sent forward the fast RHIBs-what we call a long range insertion. Those RHIBs in international waters had a series of warnings which were to be handed to the masters of the vessel telling them that they were suspected of having illegal people on board and that they should not take the people to Australia because they were not welcome. Almost without exception those warnings were ignored. We had this series of activities that we were doing whilst in international waters. CHAIR-Obviously, if you out in the deep blue sea and there is not a boat on the horizon and suddenly up pops a rubber duck with Navy personnel, it has come from somewhere. When they apprehend the RHIB they know that nearby, although out of sight, is the mother ship. That is a logical conclusion. The idea was not to confront them with the mother ship for fear that that would create a man overboard situation? Rear Adm. Smith-That is exactly right. CHAIR-Secondly, the warning given by the crew of the RHIB-I would call it a rubber duck-was to the master of the vessel? Rear Adm. Smith-Or at least to the crew. That was the direction given to the RHIB crews. CHAIR-If the master could not be identified? Rear Adm. Smith-Correct. In all cases with the exception of one, which has been the subject of your discussion, a master was identified. CHAIR-The master would be the people smuggler. Were they advised that they would be breaching Australian law and subject to severe penalties if they were in Australian territory? Rear Adm. Smith-Yes, they were. There was a warning that was provided to the Navy by the interdepartmental committee. You should ask them as to how that was generated. It was a CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 503 warning that was provided to the ships. It was translated into Bahasa Indonesia and was provided in both English and Bahasa. I have that warning here. Would you like me to read that into the record? CHAIR-I would indeed. Rear Adm. Smith-It states: Notice to master and crew The Australian government considers people trafficking to be a very serious issue. The government of Australia is determined to stop illegal migration to its territory. It is an offence under the Australian Migration Act to bring to Australia non-citizens who do not have authority to come to Australia. People who bring these people to Australia may spend longer in gaol for their crimes than ever before. There are new penalties for bringing to Australia people who do not have the authority to come to Australia. These are: 1. For each person brought to Australia without authorisation the penalty is up to 10 years gaol and a fine of up to $110 000 Australian dollars. 2. For organising the illegal entry of groups of five or more people the penalty is up to 20 years gaol and a fine of up to $220 000. If you are sent to gaol you will be there for at least 3 years. If you have been convicted of an offence of this type before, you will be in gaol for at least 5 years. You should be aware that these are both minimum periods in gaol and the courts may sentence you for up to 20 years. You are advised that Australia will enforce it laws and sovereignty. You are warned that if you do bring to Australia people without authority you will be liable to prosecution under these laws and will face a prison sentence of up to 20 years plus a fine of up to $ 220, 000. You should not enter Australian territory illegally. You should now consider immediately returning to Indonesia with your passengers and not enter Australian territory. CHAIR-That was communicated to the master and the crew in which languages? Rear Adm. Smith-In English and in Bahasa Indonesia. CHAIR-It was not shouted into the wind; it was directed at the master and the crew so that they comprehended the gravity of what was being told to them? Rear Adm. Smith-It was not spoken, Senator. It was a written statement which was handed from the boat to the master or the crew. CHAIR-Was there any effort to ensure comprehension-that these people were able to read Bahasa in a hard script? Rear Adm. Smith-That was fairly impossible as we were unable to board in this particular situation, at this point. It was handing it from the rubber boat to the vessel. CHAIR-I think it is a very important message, and I think it is an appropriate message to deliver. How can you be confident that it was received and understood? CERTAIN MARITIME INCIDENT CMI 504 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-I cannot comment on that. We delivered the message as instructed, and the assumption was that it was read and understood. CHAIR-It was regarded that that is a reasonable assumption? Rear Adm. Smith-Yes, I believe it is. Senator BARTLETT-What are the next steps in the process? Rear Adm. Smith-We provided this warning to the vessel. I think in almost every case, they just continued on regardless. Given that, in the early stages of this operation, each step was controlled by government, from Canberra through the IDC process, as they approached our contiguous zone, we then sought and were given permission to board as they entered the contiguous zone. Our policy then was to reinforce the warning and turn the vessel around and either steam it out of our contiguous zone ourselves under its own power or-as had happened on a number of occasions-if the engine had been sabotaged in our process of boarding, we would then tow the vessel outside our contiguous zone into international waters. At that point, our boarding party withdrew as we had no jurisdiction in international waters. Our initial policy was to do that up to three times and, after having done it the third time, to seek further advice from government with the view to those vessels then being taken to Ashmore Island or to Christmas Island. But that was a government decision through the IDC process. CHAIR-I want to consult with the committee over the suspension of the proceedings about the time we expect to take with the witness because I am aware that Air Vice Marshal Tith- eridge is scheduled for today. At some personal cost to himself, he has made the trip to Can- berra. I would like to get an idea of what we can advise the air vice marshal about timing for his evidence, so I would be grateful if the committee could give some thought to letting me know how long they expect to take in the examination of Rear Admiral Smith. Proceedings suspended from 11.00 a.m. to 11.10 a.m. ACTING CHAIR (Senator Brandis)-Senator Bartlett, you have the call. I understand you indicated to Senator Cook that you expect to be another half an hour. Senator BARTLETT-That is correct, Mr Acting Chair. In some of these event summaries, which are a helpful brief indication of what has occurred with each vessel, there seems to be a lot of focus on the particular behaviour of the asylum seekers in terms of violent incidents. We heard earlier today that some of these allegations that have been made were not actually produced as part of operational statements made at the time-that sometimes they were reported and sometimes they were not. If they were not reported at the time, would that be an indication of their lack of significance? Rear Adm. Smith-It depends on your perspective. If you were there, I think they are fairly significant. But what it was really reflecting, I guess, was a pattern of behaviour which we believed was developing and that this incident may just be a part of that pattern and not seen to be of significance in its own right. Senator BARTLETT-How long would it have taken to get together all the information that has now been produced in relation to these incidents? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 505 Rear Adm. Smith-The best part of a couple of weeks. Senator BARTLETT-So it was put together on request from either the CDF or the minister specifically to get information on those types of incidents? Rear Adm. Smith-It depends on what you are talking about. The information I provided you-the matrix and the summary statements for each of the SIEV incidents-was my own initiative. I was not directed by anybody to do that. It was in preparation for my participation in this process and my ability to be able to give you the facts. Senator BARTLETT-No, I am talking about the other document that you tabled this morning. Rear Adm. Smith-The other document was a direction to me from the Chief of Navy. Senator BARTLETT-So they could just as easily have directed you to get together all the information about the health of asylum seekers on board or other aspects to do with the various engagements you had? Rear Adm. Smith-Yes, if that was required. Senator BARTLETT-I am mindful of the time. There are a couple of particular aspects that I want to ascertain. It seems to me, as a generalised statement-and I am making only generalised statements because I am wanting to save time-with most of these incidents, there were periods of calm and then perhaps a period of excitability and aggression and then it would calm down again. Rear Adm. Smith-Yes. Senator BARTLETT-So a lot of these boats are out there for very long periods of time. I presume the dates here, like the date for SIEV2, for example, of the 10th to the 22nd, is the date when you were engaged with them? Rear Adm. Smith-That is correct. Senator BARTLETT-So it does not include the time from when they left Indonesia? Rear Adm. Smith-No. Senator BARTLETT-SIEV2, for example, had 12 children amongst 132 people and the boat was assessed to be in very poor condition, with food contaminated by vermin and only a small quantity of water. That vessel was then scuttled and they were transferred to the empty SIEV1, which is the Aceng, and they were there, in Ashmore Lagoon, until 22 September. Is that correct? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 506 SENATE-Select Friday, 5 April 2002 Senator BARTLETT-So in that 12-day period they were living in the SIEV1. Was that aground at the time or was that moored in the lagoon? Rear Adm. Smith-SIEV2 was located aground on 10 September. Senator BARTLETT-But, when they were transferred to SIEV1, that was a floating vessel; you had the 132 people living on the empty SIEV1 for 12 days? Rear Adm. Smith-That is correct. Senator BARTLETT-I actually find it surprising that, according to this, they only got agitated a couple of times if they were out there for 12 days. That would be sufficient shelter. I presume that provisions and all that were provided by the Navy vessel the Gawler at the time? Rear Adm. Smith-That is correct. We provided humanitarian assistance to the UAs throughout. Senator BARTLETT-And after that they were put on the Tobruk. On 15 October, they disembarked at Nauru. The initial engagement was from 10 September and probably a couple of days earlier they left Indonesia. Was it normally a day or two to get from there? Rear Adm. Smith-A couple of days would be the average, yes. Senator BARTLETT-So on about 8 September they left Indonesia and eventually on 15 October they got to Nauru. That is over one month and for virtually all of the time, except for the first couple of days, they were under Navy supervision at least. Rear Adm. Smith-That is correct. Senator BARTLETT-It was a fairly substantial commitment of resources in that case compared with what they used to be. Previously, they would have been taken on board a vessel and transferred straight to the mainland? Rear Adm. Smith-Under the previous policy, that would have been the process, yes. Senator BARTLETT-The SIEV3 was the one with the nine-month pregnant woman on board who then gave birth subsequently when they were on the troop transport, the Tobruk. That vessel was intercepted on 12 September near Ashmore Islands and obviously fairly much straightaway the boarding party would have been aware that there was a heavily pregnant woman on board. Rear Adm. Smith-Not necessarily straightaway. There were a large number of people on board there. On SIEV3, for example, there were 129 people. It took us some time to actually get the numbers right and to see what the composition of the people was. Senator BARTLETT-There were 54 children on that vessel out of 129. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 507 Rear Adm. Smith-Yes. Senator BARTLETT-It does not give much indication that I can see in the summary about whether that is very crowded or not. Rear Adm. Smith-Could you take it as a given that these were always very crowded? Senator BARTLETT-Right. So it was a very crowded boat with 54 children out of 129, with a nine-month pregnant woman. They were intercepted on the 12th and detained at Ash- more Lagoon until 22 September. Rear Adm. Smith-That is correct. Senator BARTLETT-Obviously, every medical assistance would have been given at the time. I am not imply anything to the contrary. But do those sorts of issues-to leave them out on a vessel in Ashmore Lagoon for 10 days-when you have 54 children and a woman on the verge of giving birth, come into how your operation has to be conducted and your orders? Rear Adm. Smith-That was a constraint under which we operated: that there was a requirement for them to remain in location there for that period of time. We were very conscious of our responsibilities to these people in providing them with humanitarian assistance and we did everything within our power to be able to make life as comfortable for them as was possible. Senator BARTLETT-That birth occurred on the Tobruk. It was probably not your responsibility once they had disengaged at Nauru, but did that baby survive, as far as you know? Rear Adm. Smith-The baby certainly survived its trip on board Tobruk. I am unable to comment about the time after we discharged them. Senator BARTLETT-SIEV5 was intercepted on Ashmore Island on 12 October with a two-day-old child on board. Treatment provided obviously. At some stage, a day or so later, the mother experienced uterine bleeding. The mother's condition improved just after that. You refer below to the removal to Indonesia. You have recorded that the government of Australia directed that SIEV5 be returned to Indonesia, signalling a major change in policy. So that was a specific change at that stage that kicked in. Prior to that you were not required to return them? Rear Adm. Smith-From the commencement of Operation Relex on 3 September, the initial policy that we were given to implement was to intercept, board and hold the UAs for shipment in sea transport-or air transport, but primarily sea transport-to a country to be designated. With SIEV5, we received new instructions which were to, where possible, intercept, board and return the vessel to Indonesia. Senator BARTLETT-So this was the first attempt to exercise that new requirement? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 508 SENATE-Select Friday, 5 April 2002 Senator BARTLETT-You have got under that that the vessel was intercepted on the 12th and taken to Ashmore Island. On the 17th the Warramunga returned to Ashmore Island. You took control of the SIEV and started to escort it back to Roti. That is correct? `Family groups were removed to the Warramunga due to the overcrowded conditions'-so it basically was so overcrowded that you had to take some people off and put them onto the Navy vessel. That is correct? Whether it was for safety or- Rear Adm. Smith-It was part of our trying to look after these people. They were in very difficult circumstances and that was our judgment at the time. Senator BARTLETT-So you basically kept those family groups on the Warramunga alongside the SIEV as you were travelling back to Indonesia? Rear Adm. Smith-That is correct. Senator BARTLETT-And then, at the end, you have that the boat people had to be forcibly removed from the Warramunga back to the SIEV and that you left it drifting just outside the Indonesian TS-I have forgotten what TS is again- Rear Adm. Smith-Territorial sea. Senator BARTLETT-I imagine that forcibly removing people off the vessel back onto the very overcrowded boat would tend to stress people out a bit. Rear Adm. Smith-Yes. Senator BARTLETT-On both sides, I imagine. Rear Adm. Smith-Very much so. Senator BARTLETT-Do you know what happened to the boat after that? This is a boat that has got a five-, six- or eight-month-old-a very young baby, anyway-on board. Rear Adm. Smith-We obviously had concern for the subsequent safety of the people after we had extracted our boarding party. We suspected, with this particular case, that something had been done to the engine, because we were unable to repair it. When Warramunga withdrew her boarding party she withdrew over the horizon, but that enabled her to maintain, however, surveillance of this vessel by radar, and no sooner had Warramunga disappeared over the horizon than the vessel got under way and proceeded into port. That passage was monitored by Warramunga for some time. Senator BARTLETT-SIEV7, which seems to have been one of the most eventful ones in terms of aggressive incidents, also seems to have involved a lot of different ships at various stages. You have the Whyalla, the Bunbury, the Roebuck Bay and the Bendigo. Can I just clarify with SIEV7 first: you have said at the start that there were in excess of 200 boat people on board, and yet in your matrix you only have 88 listed. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 509 Rear Adm. Smith-Yes, I would have to check those numbers, Senator. I think `in excess of 200' is more the figure, but I would have to confirm that in our matrix. Senator BARTLETT-We probably have it in some of the statements; we have a number of statements about SIEV7. That one as well struck me in reading the statements, that there were a number of children on board, including at least one small baby. It appears there that again you transferred some families to the Arunta, for example, because the boat was so overcrowded. Would that be the case? Rear Adm. Smith-Yes, there were some of these people on Arunta. Senator BARTLETT-I will quote from a statement by Able Seaman Newham in relation to this incident. It is quite a long statement. It says: At 12.51 the families that were transported to HMAS Arunta would have turned to the SIEV and, upon arrival, were shuffled to the wheelhouse roof. After about 40 or 50 SUNCS had been returned, the wheelhouse roof supports began to lean. They were worried, with the supports on a five to 10 degree lean and getting worse. That indicates that, when you put people back on again, it was so crowded or in such poor condition that the wheelhouse roof basically was at risk of collapsing. Rear Adm. Smith-That is the report. I do not think it said `at risk of collapsing'. There were indications of the lean. These boats were very crowded; there were people everywhere. Senator BARTLETT-This is an event summary that goes over a period of time, from 22 October to 29 October. If we have an immensely overcrowded boat, at least one very small baby and a number of children engaged with a number of naval vessels of various sizes, it would almost be astonishing if there were not some unrest in that period of time, which must make the management issues very complex for Navy personnel. Rear Adm. Smith-I think it is a reflection of the professionalism of the people involved in the operation that they were able to maintain as much calm and order as they were able to do, given the circumstances of these people being denied what it is they had set out to achieve. I would make one comment about your observation of this vessel, if you put people back on board, becoming crowded. It was no more crowded than it was when it left Indonesia. Senator BARTLETT-Exactly. Was it that one where, to enable the boarding party to effectively board, some people had to be removed so there was enough space for them? Rear Adm. Smith-It was a balance between humanitarian issues and the practicalities of being able to maintain control on board the vessel. This is a pretty common thing across most of these boats. The decision to extract the family groups was deliberate, because they were the better behaved, frankly. The young men, in particular, were much more vocal and aggressive, and it was easier to keep them separate. Senator BARTLETT-In respect of the boat with the single incident of a child being dropped in the water-we will touch on that briefly to confirm it-without going through all the CERTAIN MARITIME INCIDENT CMI 510 SENATE-Select Friday, 5 April 2002 statements, some of which refer to it and some of which do not, at that time were there RHIBs in the vicinity? Rear Adm. Smith-Yes, there were. Senator BARTLETT-I note that both of the statements that refer to this incident specifi- cally talk about dropping the child rather than throwing the child. Rear Adm. Smith-The child was suspended and dropped. There does not appear to be any evidence to suggest that there was a physical throw. Senator BARTLETT-Is it the case that that child was rescued from the water by another boat person who was in the water, with the assistance of other boat people on board the vessel? Rear Adm. Smith-This was all in the context of a bit of a kerfuffle on board the boat at this time, when I think 15 of the people on board the boat jumped in the water. They were being rounded up by the RHIB and escorted back to the SIEV, and it was in that context that the incident with the small child occurred where it was dropped in the water and was recovered almost immediately by one of the unauthorised arrivals who was already in the water. The baby was supported on that unauthorised arrival's stomach as he swam back to the boat, and both were returned to the SIEV. Senator BARTLETT-So in the one incident we have of a child being dropped in the water they were actually rescued by another boat person. When people jump into the water when the RHIB is-rubber ducky is a bit- Rear Adm. Smith-I understand rubber duckies; it is all right. Senator BARTLETT-I prefer RHIB, I think. Do people initially do that expecting that, if they can get into the RHIBs, they will be taken away from the SIEV? Rear Adm. Smith-I think you would have to ask them what their motives are for jumping over the side, Senator. Senator BARTLETT-I think it is the common practice that, unless the vessel is sinking, when they get into the RHIB they are taken back to the vessel. When they are taken back, are they usually annoyed about being taken back? Rear Adm. Smith-`Usually' is difficult to say. Certainly in some of the video evidence that we have to support some of these incidents it is clear-and indeed for this particular SIEV incident there is a video of an individual leaping into the water, being picked up by the RHIB and very reluctantly being removed from the RHIB back on board the SIEV. Senator BARTLETT-For the Arunta and incidents 2, 3 and 5, you have just derived information in one case from a signal and in two others from operation reports. From the amount of detail there is I think it is hard to be 100 per cent certain, but was the threat to CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 511 strangle or throw children overboard-this is incident 3-a verbal threat or was there actually someone with their hands around a child's neck saying, `I am going to strangle it'? Rear Adm. Smith-I do not have any further amplification of what that threat physically contained. Suffice it to say that the professional seamen on the spot at the time assessed this to be the case, and they reported it as such. ACTING CHAIR-And restrained the asylum seeker. Rear Adm. Smith-That is correct. Senator BARTLETT-But there is no way of verifying from the reports you have whether that was an aggressive verbal threat or whether there was any degree of physicality. Rear Adm. Smith-If I could just walk back, a signal derives from a ship-in this particular case, HMAS Arunta. Implicit in that signal address is that this has come from the commanding officer of that ship. That is the way we operate. I have no doubt at all that our commanding officers are not in the business of sensationalising or exaggerating, that they report the facts as they see them. I have no reason to doubt that what is reported here was what was seen at the time. Senator BARTLETT-I am not doubting that at all; I am just trying to interpret the words there. How I would read, literally, someone `following threats to strangle' is someone making verbal threats. I am just wondering if it means more than that. Rear Adm. Smith-I would have to go back to the ship and seek further information on that. Senator JACINTA COLLINS-That was the one the Australian reported as killing, wasn't it? Senator BARTLETT-The other is the threat `to throw his children overboard if he was not allowed to prepare own meal'-incident 5. I think all of this, again, is in the context of individual incidents that took place over an eight-day period which, as you say, tended to be characterised by bursts of high stress, high aggression and then calm periods. I must say this gives a good indication of the skill of the Navy personnel in being able to calm down volatile situations. Is there further information to expand on whether that was a verbal threat-again I am not doubting that it took place-or whether anything physical was involved in it? Rear Adm. Smith-We know for a fact that no child was thrown in the water so my assumption would be that it was a verbal threat. Senator BARTLETT-It seems almost Pythonesque to have that in there. Have you any idea of the context of it? I think you mentioned yesterday-and I found this very admirable as well-that you actually go to efforts to try and cook halal meals and the like and do the troop transports. What do people do in this situation, when you have basically got a vessel detained for a week or more in overcrowded conditions and you have only got boarding parties on board, so they are not guests on your vessel or anything? How do you deal with those sorts of issues? CERTAIN MARITIME INCIDENT CMI 512 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-From a feeding perspective, what we were doing in these circumstances was preparing the food on board one of the warships and taking it across to support the people on board. Senator BARTLETT-It is an amazing logistical exercise-you have got a vessel with a couple of hundred people on it and you are transporting the evening meals for 200 people-on RHIBs, I presume? Rear Adm. Smith-Yes, that is what we did, ferrying food. I might qualify the number there. The error, in fact, is in my own notes. The true number is in fact on the matrix; there were 88 people onboard SIEV7. Senator BARTLETT-That might do me, in the interests of time constraints. Senator BRANDIS-I think the arrangement was that it would be the government senators go next and I indicate that Senator Mason and I will share the call. We wish to take you, Admiral Smith, through a number of incidents by reference to the source documents and we will do that in turn, as it were. Before we get to that, we have all listened carefully to the line of questioning being put to you by Senator Bartlett with interventions from Senator Collins. Are you in any doubt that there was a repeated pattern of instances by asylum seekers to threaten to throw their children overboard when intercepted by ships of the Royal Australian Navy? Rear Adm. Smith-I have no doubt about that at all. Senator BRANDIS-You have no doubt that it was a pattern? Rear Adm. Smith-Correct. Senator BRANDIS-Do you have any doubt that that behaviour was part of a range of other forms of behaviour by the asylum seekers designed to intimidate officers and crew of Royal Australian Navy vessels? Rear Adm. Smith-I have no doubt that that was the pattern of behaviour and that was the purpose of it. Senator BRANDIS-And that is your professional judgment, Admiral Smith? Rear Adm. Smith-That is correct. Senator BRANDIS-In arriving at that professional judgment I think you have told us that you have had regard to some 1,500 or 1,700 signals or other pieces of primary source data concerning each of the 12 SIEV incidents between 7 September 2001 and 16 December 2001. Is that so? Rear Adm. Smith-The figure of 1,500 to 1,700 is a summary of all 12-that is the source data. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 513 Senator BRANDIS-And you have familiarised yourself with all of that material? Rear Adm. Smith-I read them as they came in; that is part of my job. Senator BRANDIS-On the basis of that assessment and the professional judgment that you have made on the basis of that material, you have prepared a number of documents. You have prepared what has been called the matrix, which you have produced essentially as an aide memoir for yourself and also an indexing and cross-referencing document. Rear Adm. Smith-That is correct. Senator BRANDIS-You have prepared, at the request of the Chief of Navy, the minute dated 21 February 2002 which was produced by you this morning. Rear Adm. Smith-That is correct. Senator BRANDIS-That minute, I think we have established, forms the basis of the document which was forwarded by Air Vice Marshal Titheridge to the Minister for Defence on 1 March 2002. Rear Adm. Smith-That is correct. Senator BRANDIS-And what for convenience has been called the Titheridge minute is, in effect, your document. Rear Adm. Smith-That is correct. Senator BRANDIS-In preparing your minute, you had regard to-and, indeed, have incorporated within the body of it-source documents from each of the vessels which support the various incidents reported therein. Rear Adm. Smith-That is correct. Senator BRANDIS-We spoke of a pattern of behaviour. Let me read to you some evidence that Vice Admiral Shackleton gave this committee on Monday, 25 March. Just listen to it, and then I will ask you whether you agree with it or would like to add anything to it by way of your own observation. I put this proposition to Admiral Shackleton. I said to him: In fact, it is the case, isn't it, Vice Admiral Shackleton, that when the Navy took over the primary responsibility for policing the Australian maritime borders from illegal entry vessels the Navy discovered quite soon that the use of children for the purpose of moral blackmail by asylum seekers-either by threatening to throw them into the water or by, as in the case of the event on 24 October, throwing them into the water or by, as in the case of SIEV10, deliberately sinking the vessel and carrying children into the water from the sunk vessel or by, as in the case of SIEV9, otherwise causing physical harm to children-was a practice that was routinely engaged in as a tactic? The Navy discovered that, didn't it? And Admiral Shackleton replied: That is what we found. CERTAIN MARITIME INCIDENT CMI 514 SENATE-Select Friday, 5 April 2002 I then said: Hence your remark in your opening statement, I assume, that threatening to hurt people in order to gain entry into Australia was not a new tactic. Admiral Shackleton replied: Correct. Admiral Smith, do you agree with Admiral Shackleton's assessment? Rear Adm. Smith-Yes, I do. Senator BRANDIS-Do you wish to elaborate in your own words upon that assessment? Rear Adm. Smith-Our experience throughout the course of Operation Relex was that all 12 of these SIEVs indicated a range of behaviour designed to intimidate the sailors, designed to appeal to our Australian cultural and moral values. It was all designed, in my view, to place pressure on those people who were trying to do their job, in order that the UAs would achieve their objective of getting us to back off. Senator BRANDIS-Do you regard the term `moral blackmail' as too strong in describing that behaviour? Rear Adm. Smith-I do not think that is too strong at all. Senator BRANDIS-The various techniques that are reported in your aide-memoire, which has been called the matrix document, include, as we have heard, threats to harm children, including-though not limited to-threats to throw them into the water. Is that right? Rear Adm. Smith-That is correct. Senator BRANDIS-The causing of actual harm to children on occasions? Rear Adm. Smith-I would have to consult my notes to see. I do not recall actual harm-but certainly threats of harm. Senator BRANDIS-I will take you through it: threats of harm, other than to throw them into the water? Rear Adm. Smith-Yes. Senator BRANDIS-Like the threat to strangle? Rear Adm. Smith-Yes. Senator BRANDIS-The sabotage of vessels? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 515 Rear Adm. Smith-That occurred. Senator BRANDIS-By sabotaging engines? Rear Adm. Smith-Correct. Senator BRANDIS-By setting vessels alight? Rear Adm. Smith-On occasions. Senator BRANDIS-By the physical destruction of vessels, or parts of the superstructure of vessels? Rear Adm. Smith-Regularly. Senator BRANDIS-By disabling bilge pumps and other devices or equipment, including navigational equipment on the vessels? Rear Adm. Smith-That is correct. Senator BRANDIS-Threats of suicide? Rear Adm. Smith-That is correct. Senator BRANDIS-Including jumping into the water? Rear Adm. Smith-There were instances of people jumping into the water and whether that was connected to suicide is a moot point. Senator BRANDIS-Hunger strikes? Rear Adm. Smith-Correct. Senator BRANDIS-Also included threats on occasions of violence by the use of weapons or fists to naval personnel? Rear Adm. Smith-That is correct. Senator BRANDIS-And, in some instances, when the vessels had been brought into custody and towed to Ashmore Island, threats to run the vessels aground at Ashmore Island and thereby to disable them there? Rear Adm. Smith-That is correct. Senator BRANDIS-All of which, may I suggest to you, were designed to do two overlapping things: firstly, to make the vessels unseaworthy, thereby to create a SOLAS situation- CERTAIN MARITIME INCIDENT CMI 516 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-That is our belief. Senator BRANDIS-and secondly, in furtherance of that ultimate objective, to expose Australian crew and officers to moral blackmail? Rear Adm. Smith-Correct. Senator BRANDIS-Senator Mason and I will take you through these events sequentially because it is important, I think, that, rather than making global claims, the specific details of each incident should be exposed and elaborated upon. I think the most convenient document is the summary document you tabled this morning. Rear Adm. Smith-Yes. Senator BRANDIS-May we go to the first page of that-SIEV1 Event Summary. That refers to an incident that occurred on 7 September 2001? Rear Adm. Smith-That is correct. Senator BRANDIS-As I read it, it does not appear, in this case, to involve threats to harm children? Rear Adm. Smith-That is correct. Senator BRANDIS-However, if I may take you to the third principal dot point below the sub-heading, `Boarding', which is three-quarters of the way down the page, you will see that there is a report there of `water bombs thrown at boarding party' and `threat of, "Someone may be killed in future".' Are you familiar with the primary documents on the basis of which this synopsis was prepared? Rear Adm. Smith-Yes, I am. Senator BRANDIS-Are you satisfied this synopsis is an accurate synopsis of those reports? Rear Adm. Smith-Yes, that is correct. They were drawn directly from operational reports made by the ship as the events unfolded. Senator BRANDIS-Do you understand the reference to the words, `Someone may be killed in the future', as a reference to a threat made by persons on the SIEV to officers of the Royal Australian Navy? Rear Adm. Smith-That is correct. Senator BRANDIS-It goes on to say: Boarding party members also report that they were hit on the head with a 2LT water bottle, wheelhouse windows were smashed and two members were told `they would be killed by the end of the night'. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 517 Pausing there, do you understand the reference to the words in the second quotation marks that `they would be killed by the end of the night' being uttered to two members as a reference to a threat made to two members of the boarding party? Rear Adm. Smith-If you will bear with me, Senator, I would like to check the source document before I answer that question. Senator BRANDIS-Yes, take your time. Rear Adm. Smith-The source document does not specifically say that that comment was directed at the boarding party. If I may read from the source document, it says that water bombs were thrown at boarding party and there was talk of `someone may be killed in future' by SUNCs. It is not clear as to whether they were talking about some of their own or- Senator BRANDIS-So they could be apprehending violence to themselves, or they could have been threatening violence to naval personnel? Rear Adm. Smith-That is correct. Senator BRANDIS-Is that ambiguous? Rear Adm. Smith-Yes. Senator BRANDIS-Thank you. That I see in the context a little above of the SUNCs appearing to become aggressive toward the boarding party. Do you see that halfway down the page? Rear Adm. Smith-That is correct. Senator BRANDIS-That 7 September event concerning SIEV1 was resolved, or the situation was quelled, by naval personnel in a fashion that was ultimately satisfactory, Admiral Smith? Rear Adm. Smith-That is correct. Senator BRANDIS-Can we go to SIEV2, please? Again, this is a synopsis prepared by you on the basis of primary source documents ultimately derived from the crew of, in this case, the Arnhem Bay. Is that right? Rear Adm. Smith-The Arnhem Bay was the Customs vessel that originally located SIEV2, that is correct. Senator BRANDIS-I need to know, in relation to each of these synopsis documents, that it is derived from primary source documents supplied by the- Rear Adm. Smith-Yes, indeed. CERTAIN MARITIME INCIDENT CMI 518 SENATE-Select Friday, 5 April 2002 Senator JACINTA COLLINS-Could we be provided with the document? Senator BRANDIS-Senator Collins, the government senators have been extremely patient and we have waited for more than three hours to examine Admiral Smith. Time is pressing and I will get through this faster without any interruptions. Admiral Smith, can I take you halfway down the document, please, under the first dot point under the heading `Temporary custody'. In the first dot point there is reference to safety concerns and then it is recorded that approximately 30 knives/sharps-presumably that means sharp instruments-were recovered from potential illegal immigrants. Rear Adm. Smith-That is correct. Senator BRANDIS-Are you able to say-perhaps you are not-whether the knives and sharp instruments in this case or indeed as part of the pattern of conduct exhibited in relation to other SIEV vessels were in the nature of weapons? Rear Adm. Smith-Certainly there was a consistent pattern across the various SIEVs of these people having things like knives. I could not make the judgment that they were being carried as weapons. These people were undergoing a long sea voyage; it could well have just been for their own protection and their own survival largely, so I would not make the connection that these were weapons per se. Senator BRANDIS-Admiral, we have seen in the witness statements, to which I will take you, that in relation to a number of the vessels where there were members of different ethic groups on board there were tensions between those groups. Rear Adm. Smith-Yes, we experienced that. Senator BRANDIS-It may be that these weapons were used for self-defence. Rear Adm. Smith-We did not see any evidence of that, but that is possible. Senator BRANDIS-The next dot point down records: By mid afternoon on 11 September, the potential illegal immigrants became agitated and threatened to jump overboard if forced to return to ... I take it that ID is a reference to Indonesia? Rear Adm. Smith-That is correct. Senator BRANDIS-It goes on: As well as several potential illegal immigrants demanding access to the media and an interpreter. I can understand why they would naturally want access to an interpreter, but why were they seeking access to the media? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 519 Rear Adm. Smith-Again, I guess you would have to ask them, Senator. Across the 12 SIEVs we certainly saw some indications that when media were around it tended to generate a more aggressive and sensational action on behalf of these people. It was most evident in the transportation task of the Manoora that I was talking to Senator Bartlett about earlier on. When we were taking these people ashore they were fairly benign until the media were sighted and then it became quite explosive. Senator BRANDIS-The next dot point records that by the afternoon of 12 September, the potential illegal immigrants were refusing all assistance except medical, with some threatening suicide and hunger strikes if they were taken anywhere other than Australia. Are you familiar with that as part of the pattern of conduct as evidenced in this instance on SIEV2? Rear Adm. Smith-That is correct. Senator BRANDIS-The naval personnel, whenever it was sought or whenever they in their professional judgment considered it necessary, did provide medical assistance to the occupants of the SIEV vessels, didn't they? Rear Adm. Smith-On every occasion. Senator BRANDIS-You are not aware of any occasion when medical assistance that was sought or appeared to be necessary was ever withheld or denied? Rear Adm. Smith-Never withheld or denied, and the only case where it would not have been provided in the initial stages was in fact in SIEV10, which sank as our boarding party was boarding it. Senator BRANDIS-All right. There is just one point that I wanted to go back to arising in the last dot point, that the potential illegal immigrants threatened to jump overboard if forced to return to Indonesia. It is a point that I suspect may have been lost in the public discussion of the issue of asylum seekers generally. The ethnic origin of most, if not all, of the asylum seekers concerned with incidents SIEV1 through to SIEV12 was Middle Eastern or West Asian, was it not? Rear Adm. Smith-Largely. There was one SIEV of Vietnamese people. Senator BRANDIS-However, in no case had these vessels embarked from ports in the Middle East or West Asia, had they? Rear Adm. Smith-That is correct. Senator BRANDIS-In all cases they had embarked from ports in Indonesia, on the southern shore of the Indonesian archipelago. Rear Adm. Smith-In fact the northern shore. CERTAIN MARITIME INCIDENT CMI 520 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-And the ports from which they had embarked in Indonesia were ports where the asylum seekers were under the jurisdiction of the government of Indonesia or in some cases at least under the jurisdiction of the United Nations High Commissioner for Refugees. Rear Adm. Smith-That is a fact. Senator BRANDIS-I understand you are not here to give evidence about the law, but was it your understanding that at the places within Indonesia from which the asylum seekers embarked they were in a position, through the United Nations High Commissioner for Refugees, to seek refugee status there? Rear Adm. Smith-I believe that to be the case. Senator BRANDIS-So we speak of asylum seekers, but in fact these people were not fleeing a country, Indonesia, in which they were being persecuted, were they? They did not claim to be persecuted by the Indonesian authorities, did they? Rear Adm. Smith-Not that I am aware of. CHAIR-I think that is a contestable point of view. They were fleeing their country of origin, weren't they? Senator BRANDIS-That is what I am putting-I think, Senator Cook, you came in in the middle of the bracket of questions. I am merely trying to expose the point that these people were seeking to come to Australia from an intermediate third country, Indonesia. Their journey obviously began in their country of origin but their point of embarkation to Australia was in every case an Indonesian port. Rear Adm. Smith-That is correct. Senator BRANDIS-I do not think that is controversial. CHAIR-No, that is not controversial. Senator BRANDIS-As Senator Ferguson reminds me, a country of safe haven. Rear Adm. Smith-Indonesia- Senator BARTLETT-From my point of view it is not a country of safe haven and it is not a country where they could get asylum. Senator BRANDIS-There was never any complaint about persecution by Indonesian authorities, was there? Rear Adm. Smith-I have certainly not been made aware of that. CHAIR-Are you in a position to know, Admiral Smith? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 521 Rear Adm. Smith-No, I am not. Senator JACINTA COLLINS-We had that ship that sank that people were herded onto. Senator FAULKNER-This is a point of order, Mr Chairman: these might be perfectly good questions but they are probably better directed to someone from the department of immigration. I think it is very unfair to the admiral to be asked to comment on something which is absolutely a mile outside his responsibilities. As the admiral says, he is not in a position necessarily to know that, and I think all the senators around the table would understand that. We probably should just focus in on his responsibilities and be fair to the witnesses before us. I think we have had a pretty good record so far of trying to ensure that the questioning that has been directed to witnesses has been, in broad parameters, within their areas of responsibility, and you cannot expect the admiral to be an absolute expert on all these issues, which are better directed to immigration officials. I hope the government senators would understand that. CHAIR-So it is outside your territorial waters, apparently. Rear Adm. Smith-I think very much so, Senator. Senator BRANDIS-Senator Mason will direct some questions to you about the SIEV3 event. Senator MASON-Rear Admiral, with respect to SIEV3, and again turning to the summary document, is that a synopsis prepared by you on the basis of contemporary witness statements? Rear Adm. Smith-Yes, that is correct. Senator MASON-What I will do this time is take you briefly through the synopsis and then look at the witness statement of Lieutenant Commander Simon Gregg. Senator BRANDIS-Is it SIEV4? Who is doing SIEV4? Is that the Arunta? CHAIR-SIEV4 is the Adelaide's-the purpose of this inquiry. Senator BRANDIS-Of course it is. I am sorry, I am getting lost with all these numbers. Senator MASON-I will commence, Chair. The context, Rear Admiral, is that the Warramunga intercepted SIEV3 10 nautical miles north of the contiguous zone off Ashmore Island on 12 September? Rear Adm. Smith-That is correct. Senator MASON-If we go about two-thirds of the way down the page, your summary document says: * By the evening on 12 Sep the SIEV had reversed course and was inside the AS TS- the Australian territorial sea? CERTAIN MARITIME INCIDENT CMI 522 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-Territorial sea. Senator MASON-It goes on: and standing into danger due to the possibility of grounding. Is that on the Ashmore Reef? Rear Adm. Smith-That is correct. Senator MASON-And it goes on: A boarding occurred at approx 1900 but the BP- the boarding party- was withdrawn less than an hour later due to tensions, aggression, and hostility by the PIIs- potential illegal immigrants. The three synopsis points are: * One female threatened to throw child over the side. Correct? Rear Adm. Smith-That is correct. Senator MASON-Secondly: * Women refused access to wheelhouse, one person was found hiding in forward void and removed by force. Rear Adm. Smith-That is correct. Senator MASON-And, thirdly: * During the BP withdrawal batons were drawn with no effect and male PIIs were heard to say, "Come on Kill me". Rear Adm. Smith-That is also correct. Senator MASON-I might take you now directly to the witness statement of Lieutenant Commander Simon Gregg, who was the Executive Officer on HMAS Warramunga at the time of the SIEV3 event. You are familiar with that document? Rear Adm. Smith-Yes, I am. Senator MASON-It is a long document and I do not want to take up the committee's time. You have in front of you the statement of Lieutenant Commander Simon Gregg, Executive Of- ficer, HMAS Warramunga? Rear Adm. Smith-Yes, I do. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 523 Senator MASON-On page 3 it says warnings were issued from HMAS Warramunga and they were rejected by SIEV3. Rear Adm. Smith-That is correct. Senator MASON-If we can then go to page 7 and the last paragraph on that page. I do not know how your copy is, but it is very small writing. Rear Adm. Smith-Very small. Senator MASON-If we go about half way into that paragraph, it says: While Dollisson- Dollisson refers to Able Seaman Dollisson, and I understand from page 2 of this document that Dollisson was the interpreter because he could speak Bahasa. Is that correct? Rear Adm. Smith-Yes, he could; that is correct. Senator MASON-It says: While Dollisson was explaining to the Master- of the SIEV- the courses he had to steer the Master gestured with his hand his throat being cut indicating he was not safe. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-It goes on to say, about the potential illegal immigrants: The PIIs were becoming more and more agitated with women and children crying and pleading to come to Australia. After delivery of the chart to the Master the RHIB returned to WARRAMUNGA. Why would the master be indicating that he was not safe? Rear Adm. Smith-I guess, again, this would be a question for the master to really answer. Our interpretation of that behaviour, which was not uncommon across these SIEVs, was that the master and crew, who numbered somewhere between three to five Indonesian people, were grossly outnumbered by the unauthorised arrivals on board and that in almost all circumstances there was an indication that the master really did not have control over the situation. Senator MASON-How many people would typically be carried by a crew of three to five? Rear Adm. Smith-From my matrix, if you look at the numbers, they varied-somewhere between 100 and 250. In this case, clearly the inference is that the master felt that his life was in CERTAIN MARITIME INCIDENT CMI 524 SENATE-Select Friday, 5 April 2002 danger from the unauthorised arrivals-his passengers-and that he did not have the control over the vessel that we were assuming, given the directions that we were giving him. Senator BRANDIS-Admiral Smith, you probably heard Admiral Ritchie's evidence yesterday on this point. Do you remember Admiral Ritchie saying words to the effect that uniformly with each of these SIEV vessels, it was the Navy's experience that the dominant figures on the vessels were large, male asylum seekers, whom the crew of the SIEV vessels were in fear of and under the direction and control of. Do you remember that evidence or evidence to that effect? Rear Adm. Smith-Yes, I do. Senator BRANDIS-That is consistent with your analysis and assessment of what was happening? Rear Adm. Smith-Yes, it is. Senator MASON-I now turn to the second paragraph of page 8 of Lieutenant Commander Gregg's statement. The discussion there is about the boarding party inserting into SIEV3. Rear Adm. Smith-Yes. Senator MASON-The fourth sentence reads: The majority complied with the request and embarkation of BP commenced at 1831. One female PII was seen holding a child over the side and threatening to throw the child over the side. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-I ask you to turn to page 9 of Lieutenant Commander Gregg's statement. In the second sentence of the top paragraph on that page, the commander states: On noticing the change of course the PIIs became very aggressive towards the BP and I. I ordered one member of the BP to search the kitchen for the previously identified three knives but only one of the three knives was found. I ordered the knife to be held as evidence and any other potential weapons to be collected. I found two broken spanners and a small crowbar which I confiscated. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-I draw your attention to the second sentence of the final paragraph on that page. It says: The situation continued to worsen with all male PIIs starting to riot and threaten the BP as a mass. I assessed that the situation could not be controlled without the use of high force and possibly lethal force. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 525 Rear Adm. Smith-That is correct. Senator MASON-I am not a military person. What do `high force' and `possibly lethal force' mean in terms of having to take control? Rear Adm. Smith-He is referring to an escalation of the environment beyond the level of force which he was authorised to apply in the circumstances. Under our rules of engagement- which were discussed yesterday-we were very clear about how far we could go, and that was short of lethal force except in self-defence. Senator BRANDIS-I take it that a decision of that kind to escalate the level of force that the naval personnel might be required to use was a response to and a reflection of the extent of the threat to which they felt themselves exposed? Rear Adm. Smith-That is correct. CHAIR-Were any of the asylum seekers armed? Did they have guns? Rear Adm. Smith-There were no guns. CHAIR-Did they have offensive weapons, like knives or swords? Rear Adm. Smith-There were knives missing, as has just come out in the statement. There was no way to guarantee what they actually had concealed on their person. CHAIR-Were they knives that were cutlery or were they hunting knives or military weapons? Do you know? Rear Adm. Smith-As I said, there was no evidence provided of knives being brandished at this point. CHAIR-Were any of the seamen threatened with weapons as such? Rear Adm. Smith-In this particular case, not that I am aware of. CHAIR-The boarding parties had a holstered pistol and baton, did they not? Rear Adm. Smith-Yes, they did. CHAIR-So they were armed in the classic sense? Rear Adm. Smith-That is correct. CHAIR-The asylum seekers did not know the rules of engagement, did they? Rear Adm. Smith-No, they did not. CERTAIN MARITIME INCIDENT CMI 526 SENATE-Select Friday, 5 April 2002 CHAIR-So they did not know that those weapons that were holstered and those batons had limitations imposed on them in terms of being used? They were visual, they could see them, but they did not know that they were not going to be used against them? Rear Adm. Smith-That is correct. Senator MASON-Admiral, can I turn your attention to page 10 of Commander Gregg's statement. To give a context to this, and it is only fair to do this, can I go to the paragraph commencing, `Over the next 120 minutes'. Sir, do you have that? Rear Adm. Smith-Yes, I do. Senator MASON-That gives the context of what was happening. I think I must make that apparent. The paragraph reads: Over the next 120 minutes my Commanding Officer negotiated with the [illegal immigrants] through me from the RHIB and at 21.30 was directed to inform them that they only had 40 minutes until they ran aground on the reef. That is the Ashmore Reef? Rear Adm. Smith-That is correct. Senator MASON-It is night-time? Rear Adm. Smith-That is right. Senator MASON-The paragraph continues: Heated discussions were occurring in the SIEV and agreement to stop and wait until morning were given and then countermanded numerous times. There appeared to be no one leader within the group and every time I thought I had them agreeing to a proposal they would insist that the RHIB went away. Each time I positioned the RHIB approximately 50-100 yards astern until I was called up for a negative response. The male [illegal immigrants] were willing to sacrifice their women and children rather than stop in the water or remain in their current position until first light. At 21.51 a SOLAS situation was imminent, it was a dark night, no moon with the reef 2.5- Is that right-2½ metres? Rear Adm. Smith-Two-and-a-half nautical miles. Senator MASON-I am sorry, I could not read it. The paragraph continues: ... 2.5nm ahead and approximately 50 children believed to be onboard, the only possible solution was to embark all the [illegal immigrants on to the] Warramunga. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-Wouldn't you say that was a remarkable act of brinkmanship? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 527 Rear Adm. Smith-This was an incident of great concern to us because of its potential as a safety of life at sea situation. CHAIR-This SIEV, was it crewed? Rear Adm. Smith-There was a crew, yes. CHAIR-So the asylum seekers were not driving the boat, there was a crew that was doing that? Rear Adm. Smith-No, this was a case where the asylum seekers were very firmly in control of this vessel. CHAIR-How do we know that? Rear Adm. Smith-Because they were giving the orders, they were making the decisions and they were providing the advice and guidance to the boarding party as to what they were prepared to do and not do. CHAIR-Was an asylum seeker at the helm? Rear Adm. Smith-I would have to check that information, Senator. They were in control of the vessel. CHAIR-Why? Had there been a mutiny and they had displaced the crew? Is that what had happened? Rear Adm. Smith-Mutiny has great connotations, but there is no doubt- CHAIR-Perhaps it is the wrong word. Had the passengers- Rear Adm. Smith-The passengers had taken control of this vessel and in all respects were deciding what was going to happen to it. I have now been advised that they also had control of the wheelhouse. Senator MASON-You gave evidence just before- Rear Adm. Smith-The UAs had control of the wheelhouse. Senator MASON-that there was a riot and the boarding party had to leave. You gave that in evidence before. Rear Adm. Smith-That is correct. CHAIR-Where were the crew at this time? CERTAIN MARITIME INCIDENT CMI 528 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-Amongst the other people there. I am not sure exactly where they were located in the boat, but they certainly were not in control of the vessel. CHAIR-I think it was established that if they were so close to the reef they would have been in Australian territorial waters. Rear Adm. Smith-Yes, they were. CHAIR-So the crew, who are the people smugglers, were in breach of Australian law at that point and they had been subject to warnings from you earlier that they could face long periods of incarceration? Rear Adm. Smith-That is correct. CHAIR-Was any effort made to apprehend them and bring them into custody? Rear Adm. Smith-At this particular time we were more interested in, and focused on, trying to prevent loss of life at sea rather than identifying the crew and serving them summonses and so forth. What was very clear to the boarding party, though-and it is verified in the source documents-was that at this stage the unauthorised arrivals had taken control of this vessel. The master and crew had no control of the situation and were just being taken along for the ride. Senator FAULKNER-There were no threats to throw the crew overboard? Rear Adm. Smith-Not that I am aware of. Senator MASON-Just one last question while we are on the subject of SIEV3-Senator Brandis has just drawn this to my attention. On page 2 of the event summary, there is a heading, `Incident Summary-Threat to Throw Child Overboard'. I took you through Lieutenant Commander Gregg's statement earlier concerning the threat to throw the child overboard. Rear Adm. Smith-Yes. Senator MASON-Do you agree that in that first dot point under that heading the age of the child is given as approximately two to three years? Rear Adm. Smith-That is correct. Senator MASON-Thank you. Senator BRANDIS-Indeed, of this sequence of incidents commencing with SIEV1, what we have just been concerned with was the first of them, so far as the evidence goes, that in- volves threats to children? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 529 Senator BRANDIS-I think that it was Admiral Shackleton, in fact, who gave some evidence a little while ago about how a pattern of behaviour evolved over the sequence of incidents-indeed, Commander Banks did, as I recall. I guess it is not a pattern when it happens the first time, but it starts to get into a pattern when it happens the second time, and it becomes more and more of a pattern with each subsequent repetition. So this is the first instance of threats to children? Rear Adm. Smith-That is correct. Senator BRANDIS-Each time a new outrage-or a new species of threatening behaviour- was evidenced, was that behaviour assessed by naval intelligence, and were professional judgments made by the appropriate people in the Navy as to how naval personnel should be best placed to meet it, if and when that type of conduct occurred again? Rear Adm. Smith-Certainly, as each of these incidents occurred-each SIEV incident-we analysed the conduct of the people concerned and adjusted a guidance that we provided, through the JTF commander, to the tactical forces so that they might expect such behaviour, and to give them some guidance as to how they might be able to deal with that. Senator BRANDIS-Do you know Lieutenant Commander Gregg? Rear Adm. Smith-Yes, I do. Senator BRANDIS-Is he an officer given to sensationalism? Rear Adm. Smith-Not at all. He is an officer who worked for me personally before he joined the ship. He is an officer of high reputation in whose judgment I have total confidence. Senator BRANDIS-I take it that one of the professional skills in which any military officer, including any naval officer, is trained is the assessment and accurate and dispassionate reporting of events that they see in situations like this? Rear Adm. Smith-That is what we try to train them to do. Senator BRANDIS-So these men and women are not what one might call `lay witnesses'-they are people who are actually trained in the skill of providing dispassionate, professional reporting of what they see? Rear Adm. Smith-Lieutenant Commander Gregg is a warfare officer. He is trained that way. Senator BRANDIS-The only reason I ask that is that I am rather struck by that part of his statement in which Lieutenant Commander Gregg says: The male PIIs- potential illegal immigrants- CERTAIN MARITIME INCIDENT CMI 530 SENATE-Select Friday, 5 April 2002 were willing to sacrifice their women and children rather than stop in the water or remain in their current position until first light. Lieutenant Commander Gregg would not have included that in a professional situation report if that were not an exercise of his professional judgment-in other words, it is not just purple prose. Would you agree? Rear Adm. Smith-I would agree with that. It was his judgment that, in the circumstances, on a very dark night, a couple of miles off a fringing reef of Ashmore Island, with a stated intention to run the ship aground, there was a real prospect of loss of life. That would have driven his assessment in that circumstance. CHAIR-You have given us an assessment of the professionalism of Commander Gregg, which I acknowledge and respect. The same is true of Commander Banks, is it not? Rear Adm. Smith-That is correct. Senator BRANDIS-It is correct indeed of all of your officers, Admiral Smith, is it not? Rear Adm. Smith-That is correct. I think I know where Senator Cook is going. Senator BRANDIS-Admittedly, in the way of things, some people are better than others, but there is generally a very high standard of professionalism, including the exercise of a skill to assess and report on a situation dispassionately, expected of all of your senior officers. Rear Adm. Smith-We are extremely proud of the quality of people that we have within the Navy. They are trained to operate to the best of their ability in the way that you have described, and they do that. CHAIR-Would you say that in the case of Commander Banks, he was someone extremely capable of dispassionately and objectively assessing the circumstances of a situation such as this? Rear Adm. Smith-Yes, I do. CHAIR-I ask that question because there were questions earlier about Commander Banks with regard to that capability. Senator BRANDIS-There were certainly no questions from any senator I recall, Senator Cook, that called into question Commander Banks's professional competence. Senator FAULKNER-I heard a former vice admiral say that you should be taken out and shot for your line of questioning. Senator BRANDIS-Check the Hansard, Senator Faulkner. Note the Hansard. Senator FAULKNER-This was not in the Hansard; I just read a media report. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 531 Senator BRANDIS-There were no questions from any senator, including the government senators and including me, that questioned Commander Banks's professional competence. Senator FAULKNER-The vice admiral may have been misreported. Senator BRANDIS-That is not to say that when two highly trained, competent officers- Brigadier Silverstone and Commander Banks-have a different recollection of an occasion, one may not be right and one may not be wrong. Senator FAULKNER-I have heard from so many admirals over the past few days, I decided I would not be watching any more admirals on any media outlet. I am sure that even Admiral Smith would understand that and I am sure he would accept it. He has probably had an overload of politicians too, and I would not blame him if he said so. Senator MASON-You are probably right, Senator Faulkner. Admiral- CHAIR-I have one other question, which relates to something that Senator Mason put to you a moment ago. Senator FAULKNER-Just for the record, I do not think that Senator Brandis should be taken out and shot. That was not my suggestion at all. I hope he did not misunderstand me; I was merely quoting the admiral. CHAIR-I think Senator Brandis is an asset to this committee in more ways than he imagines. Senator FAULKNER-I hope he stays in here and asks more and more questions. CHAIR-Enough of the flattering self-indulgence at this end of the table. Let us get on with the inquiry. The question I have relates to something that Senator Mason put to you. I forget which dot point he said, but he asked you to confirm whether, at that dot point, it said the child was two to three years old. Do you recall that? Rear Adm. Smith-Yes, I do. CHAIR-In answer to that question, were you saying that that was what was written on the paper in front of you or that that is what you know for a fact? Rear Adm. Smith-That is what has been reported to me in the operational report messages. CHAIR-So that is an operational report; it is not something that you know personally to be true? Rear Adm. Smith-Only through reading that report. CHAIR-What is the evidentiary basis? Is there a sworn statement that backs this report? CERTAIN MARITIME INCIDENT CMI 532 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-The only sworn statement in this context, I believe, is Lieutenant Commander Gregg's. I would have to go through it again to see if he mentions this two- to three-year-old. If it is not in his report, it would be taken directly from the operational report that was being drafted as this incident unfolded. Senator BRANDIS-Admiral Smith, I thought we established this at the start, but lest there be any doubt in anyone's mind, you do not say that you were an eyewitness to any of these events. As I understand it, you say that, having assessed a very large volume of primary material-which you estimated to be between 1,500 and 1,700 documents-in the exercise of your professional judgment you prepared these synopses of what that assessment told you. Rear Adm. Smith-That is correct. Senator MASON-In a previous question to you I used the word `brinkmanship'. This followed Senator Brandis's questions about that evening and the fact that the SIEV was going towards Ashmore Reef. I think, according to your matrix document, there were 129 people on board. Do you think that is an act of brinkmanship: to force a safety of life at sea situation and to force the Navy to pick up those people on that boat? Rear Adm. Smith-I would not call it brinkmanship; I would call it dangerous. Senator BRANDIS-SIEV4, as I am reminded-I did not really need to be reminded, but thank you, Senator Faulkner-was the HMAS Adelaide. We have heard ad nauseam the debate about what was said or not said by Commander Banks to Brigadier Silverstone in the telephone conversation from the bridge, and I do not want to rehearse that with you. You are not in a position to say, I take it, whether or not a child was thrown overboard from the HMAS Adelaide, and so I will not go into that. CHAIR-I do not think anyone has contended that was the SIEV4. Senator BRANDIS-You are not in a position to give evidence on that, I take it? Rear Adm. Smith-On the exchange between Silverstone and- Senator BRANDIS-Yes. Rear Adm. Smith-No, I am not. Senator FAULKNER-But you are entitled to give a view. As Senator Brandis properly raises this issue and it is crucial to our terms of reference, you can tell us-because you are Maritime Commander and obviously a crucial and very senior link in the chain of command- whether you believe that a child was thrown overboard. That is a reasonable question to ask you, given your role in the chain of command. Rear Adm. Smith-At this point, I do not believe that a child was thrown overboard. I did believe such an incident had occurred from the period 7 October through to 10 October. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 533 Senator FAULKNER-Which is, I think, evidence that has been provided to us before, and not only by you but also by others, including Admiral Ritchie in the chain of command. Rear Adm. Smith-That is correct. Senator FAULKNER-I merely interpolate there, because I think it is reasonable to ask you that question directly. Senator JACINTA COLLINS-And you believed it was `children' rather than `child', did you not? Rear Adm. Smith-I realise you have been pursuing that point of singular or plural. Certainly I had it in my mind that I had heard the word `children' mentioned. Senator MASON-You believed that because of the operational reports and also because it was consistent with a course of conduct to create the safety of life at sea situation? Rear Adm. Smith-I do not recall that in the context of the operational reports-because I think that is, in fact, the real issue in the context of SIEV4. Senator FAULKNER-It was not in the operational reports, was it? Rear Adm. Smith-That is exactly what I was about to say. Senator FAULKNER-Exactly right: it was not in the operational reports. So I think it is a very unfair question that Senator Mason asked. Senator MASON-Let me follow this up. When you heard that, you were not surprised? Rear Adm. Smith-I was not surprised at all when I was apprised of that on the Sunday morning. Senator MASON-Why is that? Rear Adm. Smith-As I said, in our planning for these operations, we had assumed levels of pressure being applied to the boarding party, and that could have translated into behaviour such as this. We were conscious that, in other countries facing similar circumstances, we had done considerable research. The United States Coastguard had had quite extensive experience in things such as this, and this pattern of behaviour was not uncommon there. Operations in the Mediterranean that we researched similarly had behaviour patterns such as this. CHAIR-That is with the Italian Navy? Rear Adm. Smith-And others. So we drew all that information in. That shaped our operational planning, which was, in a `worst case'-which is what we always plan for-that we expected to experience such behaviour. CERTAIN MARITIME INCIDENT CMI 534 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-This has been asked of all witnesses-and I think it is a fair question, because you have indicated that you are satisfied, and on what day you became satisfied, that children were not thrown overboard: are you able to be precise in terms of the time? Rear Adm. Smith-The time I was told? Senator FAULKNER-Yes. Rear Adm. Smith-Yes, I am. I was told, as near as damn it, at eight o'clock on Sunday morning. I rang Admiral Ritchie, according to my mobile telephone record, at 8.02 that morning to advise him of this information. Senator JACINTA COLLINS-Canberra time? Rear Adm. Smith-This is Sydney time, which is the same as Canberra's. Senator FAULKNER-For the purposes of the record, are you able to say whether you are satisfied that the photographs purporting to represent that children were thrown overboard did not represent children being thrown overboard? Rear Adm. Smith-I am totally satisfied that they did not represent the incident which they were being allowed to portray. Senator FAULKNER-For the purposes of the record, given we are talking about this time frame, when did you become satisfied that that was the case? Rear Adm. Smith-I received those photographs on Tuesday, 9 November. I was very satisfied about the context in which those photographs had been transmitted. I was annoyed with Commander Banks for transmitting them in the way that he did, but he was merely a proud Commanding Officer who was trying to demonstrate the bravery of his ship's company. I, like Admiral Ritchie witnessed the 7.30 Report on the Wednesday evening and I rang Admiral Ritchie and the Chief of Navy and voiced my serious concern that the photographs were being misrepresented. They, in turn, both contacted the CDF and they both then returned to me and informed me that they had advised the CDF of that fact. Senator FAULKNER-I appreciate that. To be frank, Admiral, as you would understand, the information that you have just provided then was perhaps known to the committee from previous evidence-including from other witnesses-but I think given the nature of the ques- tioning and the significance of the incident it is worth having it spelled out. That is helpful and I thank you for it. Proceedings suspended from 12.32 p.m. to 1.32 p.m. CHAIR-We will resume. The floor is yours, Senator Brandis. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 535 Rear Adm. Smith-I want to correct what I said before the lunch break in answer to a question Senator Faulkner asked me about SIEV4 incidents. I am told I used the dates of 7 November instead of 7 October for the SIEV4 circumstance. It should, of course, be October. Senator BRANDIS-Rear Admiral Smith, I will finish off SIEV4 because I do not have very much more to ask you about it. I then want to come back to something you said immediately before the luncheon adjournment. Leaving to one side the question of whether or not a child was thrown overboard from SIEV4-and most people seem to say there was not-it is not in controversy that a child, described in one of the statements as a little four- or five-year-old girl in a pink jumper was held overboard and threatened to be thrown overboard. You are familiar with that evidence? Rear Adm. Smith-I am. Senator BRANDIS-I assume you would have heard Commander Banks when he, in response to some questions from me last week, expressed the view that it was only as a result of the intervention of RHIB personnel from Adelaide, at his command, that the little girl was not thrown into the water. CHAIR-I do not think that is a fair representation. Senator BRANDIS-It is a fair representation, Senator Cook. If there is controversy, I will take you to the Hansard. He was very explicit about that. CHAIR-We may go back to it. I will just mark this spot for my reference. Senator BRANDIS-When I am finished, I will take you to the passage. CHAIR-It is more than just a passage. Establishing the fact is more than just a passage. Do whatever you want, Senator Brandis. For my reference, I have just marked the spot in the Hansard. I will find that spot and come back and check the facts. Senator BRANDIS-All I wanted to ask you to do is, as it were, complete the continuing sequence of these events. Was that conduct-the threat to throw the little girl in the pink jumper overboard from SIEV4-part of the same pattern of conduct that you have already described to us? Rear Adm. Smith-Yes, it is. We were not surprised by that activity. Senator BRANDIS-Being now the second occasion that a threat to throw a child overboard is in evidence-the first having been SIEV3-this is probably, I dare say, the point at which it does start to assume the character of a pattern of conduct, rather than being a single incident. Rear Adm. Smith-That is true. Senator BRANDIS-In relation to SIEV4, as far as you know, was evidence of asylum seekers throwing themselves into the water standard procedure? CERTAIN MARITIME INCIDENT CMI 536 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-Yes, it was standard procedure. Senator BRANDIS-I think it was the SIEV in which there was also evidence of a fire having been lit and the engine becoming inoperative. Rear Adm. Smith-That is correct. Senator BRANDIS-The sabotaging of the motor is-I think you have already told us-part of the pattern of conduct to generate SOLAS situations, which you had identified. Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-I want to take you back to some evidence you gave, just before the luncheon adjournment, about intelligence the Navy had received of similar patterns of conduct-that is, conduct, among other things including threats to the life or wellbeing of children-being engaged in elsewhere in the world by asylum seekers. You were beginning to speak to that and I think you gave us some examples from Italy and the United States. CHAIR-I think it was- Senator BRANDIS-Senator Cook, like a good Whitlamite, is an Italophile. It was indeed Senator Cook's introduction of Italy. CHAIR-I am married to an Italian; I could not get it wrong. Senator BRANDIS-I invite you to elaborate, as fully as you wish, upon what that intelligence from those two places-and, indeed, elsewhere in the world, if there were other instances-told you about similar patterns of conduct. Rear Adm. Smith-In the development of our concept of operations and the detailed plan, we conducted some research into circumstances similar to the one that we assumed we would be confronting. The information we gained from that research of the US Coastguard and some European navies operating in the Mediterranean is that this pattern of behaviour of applying pressure to the crews of the boarding parties is not an uncommon method of operating. Threats of harm to people and to children was a feature that was common there. Without overplaying that research, it just gave us some background into what we might expect. As is our normal way, we plan for the worst eventuality and we assumed that that would occur to us here. Senator BRANDIS-I have been shown a report from a British newspaper of 28 February 2002. I will read you an extract from it: A gang of Romanian asylum seekers threatened to throw their babies off a cross-channel ferry, unless they were allowed to enter Britain. During the incident, three women, all believed to be Romanian gypsies, swung three children, all under four years old, over the car ramp at Newhaven ferry port in East Sussex. A lifeboat crew was put on alert and a boat dispatched to the ferry in case any of the children fell into the six feet of water. I do not know if you are familiar with that particular incident, but is that the kind of conduct that naval intelligence had become aware of elsewhere in the world? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 537 Rear Adm. Smith-I am not familiar with that particular incident, but that is the type of thing that we had encountered in our research. CHAIR-Did we have any Romanian refugees or asylum seekers? Rear Adm. Smith-No, we did not, Senator. CHAIR-Did we have any gypsies? Rear Adm. Smith-No, we did not. Senator BRANDIS-Does it strike you as unusual or surprising that similar patterns of conduct among asylum seekers-albeit, as Senator Cook quite rightly points out, from different backgrounds-seem to be being engaged in around the world at about the same time? What do you make of that? Is there any naval intelligence, for instance, to suggest communication among people smugglers around the world as to techniques? Rear Adm. Smith-I have no intelligence that pulls together that information. Senator BRANDIS-It is striking, isn't it, that similar conduct is reported in different parts of the globe, evidently to produce similar results? Rear Adm. Smith-The similarity is significant. CHAIR-Was it reported from the United States? The example just quoted is notorious, but was it reported from the United States? Rear Adm. Smith-We had some open source material that we researched from the US Coastguard which indicated that they had had some experiences similar to that in their dealing with illegal immigration in the Gulf of Mexico. CHAIR-Can we have access to that? Rear Adm. Smith-We just got it from their open source information off the Internet. CHAIR-We can look it up on the Internet? Rear Adm. Smith-Yes, at the Coastguard site. Senator BRANDIS-Rear Admiral Smith, this is not a case of threats to harm the life or wellbeing of children, but even in relation to the Tampa incident-and I am reading from a report in the Sydney Morning Herald of 28 August 2001-Captain Arne Rinnan of the Tampa is quoted as saying: "We were planning to take them to Indonesia- that is the asylum seekers- CERTAIN MARITIME INCIDENT CMI 538 SENATE-Select Friday, 5 April 2002 and then we had a meeting here on the bridge [with five asylum-seekers] and they were acting in an aggressive and highly excited manner, you see, and threatening to jump overboard. "They wanted to go back to the sinking ferry if we were proceeding to Indonesian waters, so we felt the situation was starting to get out of control. A report of the same day in the Melbourne Age has Captain Rinnan as saying: Once safely on board, the boat people, reported to be from Afghanistan, Pakistan, Sri Lanka and Indonesia, demanded to be taken to Christmas Island. Five men went to the ship's bridge and threatened to jump overboard if the Tampa set course for Indonesia. "They had aggressive and highly excited attitude and so we felt it was not safe to take them up to Indonesia for the crew on board the ship," Capt Rinnan told the Age yesterday. Are you familiar with that conduct in relation to the Tampa? Rear Adm. Smith-I am familiar with it only in the context of the media reports that you talk about. Senator BRANDIS-Let me come back then to the sequence of the nominated SIEV incidents. We are up to SIEV5. That was not an occasion on which there was reported to be any threat to the life or livelihood of children? Rear Adm. Smith-That is correct. Senator BRANDIS-Can you turn up the events summary document? That was an incident involving the HMAS Warramunga on 12 October 2001. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-What were the significant features, Rear Admiral Smith, of the SIEV5 event, please? Rear Adm. Smith-This was a vessel that was returned to Indonesian waters. As you say correctly, Senator, the Warramunga boarding team did so on 12 October. They took control of the vessel. Their warnings were given. The SIEV turned north, then turned back south again and came back towards Ashmore Island. Eventually a boarding took place, the vessel was taken into custody and taken to the Ashmore Island lagoon, where it was subsequently taken from there to Indonesia. Senator BRANDIS-Rear Admiral Smith, I will direct you to a couple of relevant portions. This was an exercise that involved, in fact, three naval vessels: the Warramunga, the Whyalla and the Townsville. Rear Adm. Smith-That is correct. Senator BRANDIS-If you go to the second-last dot point on the first page of your summary, you will see that it is reported: CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 539 WARRAMUNGA commenced escort towards Roti- Is that a location in Indonesia? Rear Adm. Smith-That is correct. Senator BRANDIS-It continues: ... after dark with the SIEV in tow by TOWNSVILLE due to a U/S- What is `U/S'? Rear Adm. Smith-An unserviceable engine. Senator BRANDIS-It continues: ... engine cooling pump suspected of being sabotaged whilst the SIEV was in custody at AI- that is, Ashmore Island. Rear Adm. Smith-That is correct. Senator BRANDIS-The suspicion that the cooling pump had been sabotaged so as to render the engine unserviceable was a suspicion reported by an officer of the Navy? Rear Adm. Smith-That is correct. There was an operational report. Senator BRANDIS-And presumably it reflects a dispassionate professional judgment made by that officer that that indeed is what had happened? Rear Adm. Smith-That is correct. The engine was serviceable on entering the lagoon but, when an attempt was made to restart it, it was not serviceable anymore. Senator BRANDIS-At the next dot point we read: Upon arrival 13 Nm from ID ivo Roti- that is, 13 nautical miles from Indonesia. What does `ivo' mean? Rear Adm. Smith-In vicinity of. Senator BRANDIS-It continues: ... at approximately sunrise 19 Oct, and after advising PIIs of intention, a riot ensued with one group storming the engine room of the SIEV and disabled the engine. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 540 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-That happened, did it? Your synopsis is based on situation reports? Rear Adm. Smith-That is correct. Senator BRANDIS-It continues: Another PII lit a fire up forward and another slashed himself 3 times with a razor blade. Most aggressive PII told the Boarding Officer that most would kill themselves if they were returned to ID- that is, Indonesia. Rear Adm. Smith-That is correct. Senator BRANDIS-Do we know if there were children-I am not suggesting that there was an express instance of a threat to harm a child on this occasion-on board SIEV5? Rear Adm. Smith-There were 29 children on board SIEV5. The children and the family groups had been removed to Warramunga for the transit to Indonesia, to ease the congestion and also to make it easier for the boarding party to maintain control. The children and the family groups were returned to the vessel prior to its being left in Indonesia. Senator BRANDIS-So we have, in relation to SIEV5, instances of threatening behaviour to our forces, threats of suicide or self-harm-I am reading from your matrix document-and an instance of sabotage of the engine? Rear Adm. Smith-That is correct. Senator BRANDIS-In each case by people on the SIEV? Rear Adm. Smith-That is correct. CHAIR-Do we know which people? Rear Adm. Smith-We cannot say with certainty who sabotaged the engine-they were people on the SIEV. CHAIR-It could have been the crew; it may have been the asylum seekers, as far as you know. Rear Adm. Smith-It could have been either, yes. Senator BRANDIS-Isn't it the case, though, that, given the evidence we heard from both you and Rear Admiral Ritchie, the large male asylum seekers in each case dominated and were essentially in control of the fate of the crew on these vessels? It seems a lot more likely, doesn't it, that these were actions engaged in by asylum seekers rather than crew? Rear Adm. Smith-That would be my assessment. On the sabotage in the first instance in the lagoon, to take the Chair's point, it is less clear as to who would be responsible there, but CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 541 there is no doubt in my mind that the disabling of the vessel-see the last dot point on that first page-as it was approaching Indonesian territorial waters, was done by the UAs who had stormed the engine room. Senator MASON-I think there are often only three to five crew, and dozens and dozens- sometimes hundreds-of passengers? Rear Adm. Smith-That is correct. Senator BRANDIS-So in your professional judgment you think that conclusion, although you cannot be completely sure, is the most likely scenario? Rear Adm. Smith-In the second case I am quite certain that it was the UAs that disabled that engine. CHAIR-Were the crew interviewed to obtain from them their version of the events? Rear Adm. Smith-No, they were not. They took the vessel back to Indonesia. Senator BRANDIS-We now turn to SIEV6. Although you have already said this, for the purposes of this narrative in the Hansard I think we should say it again: there is a mistake in your minute to Admiral Shackleton and in Air Vice Marshal Titheridge's minute to Minister Hill, which is based upon your minute-that is, an incident described as involving SIEV6, which is enclosure 8 to the minute, in fact was a SIEV7 episode. That is the case, isn't it? Rear Adm. Smith-That was-in clarification there, the error was with Bunbury. Senator BRANDIS-Yes. Is that 22 October? Rear Adm. Smith-Bunbury's report indicated that she was dealing with SIEV6. In fact it was SIEV7 that Bunbury was dealing with. Senator BRANDIS-That mistake, may I take it, is not repeated in your events summary synopsis, so that where we come to the two-page document entitled `SIEV 06 events summary', that is in fact a reference to the real SIEV6 which was apprehended by Arunta and Warramunga, not to the mistakenly described SIEV7, with which the Bunbury was concerned. Rear Adm. Smith-That is correct. Senator BRANDIS-All right. Dealing, then, with the real SIEV6 once again, this is not an occasion-at least so far as we are aware-on which there were threats to the life or wellbeing of children aboard. Rear Adm. Smith-That is correct. Senator BRANDIS-It was an incident that occurred on 19 October 2001. CERTAIN MARITIME INCIDENT CMI 542 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-That is correct. Senator BRANDIS-As I have said, the relevant naval ships were the HMAS Arunta and the HMAS Warramunga. Rear Adm. Smith-That is correct. Senator BRANDIS-May I take you, please, to the second dot point beneath the subheading `Attempted Removal to ID'-that is, Indonesia: Inspection of the engine discovered damage (sabotage) preventing it- presumably meaning the engine- from being started - repair action initiated. I take it that that entry in the synopsis, including the parenthesised word `sabotage', reflects a conclusion, in the dispassionate professional judgment of the Australian naval personnel, that the cause of the damage to the engine was indeed sabotage. Rear Adm. Smith-That is correct, Senator, and in fact the operation report that underpins that assessment goes into a little bit more detail as to the damage that was- Senator BRANDIS-Please feel free, in response to any of these questions-I am just trying to highlight as it were the pattern of conduct for you-to elaborate upon the items in your synopsis, if you wish, Admiral. Rear Adm. Smith-The operation report, the first one that I have here, refers to the damage to the engine: gearbox lever snapped off, one injector line cut. So that amplifies the sabotage. Senator BRANDIS-Thank you. Then we read, a couple of dot points down, that-and I quote: A fire was lit, followed by another, and PII commenced destroying bilge decking. We then read: Reinforcements from WARR brought the situation under control. A 3rd fire was lit when further attempts were made to start the engine. Just pausing there, do I take that to mean that a third fire was lit while Australian naval personnel were in the course of attempting to restart the engine? Rear Adm. Smith-That is correct. Senator BRANDIS-Presumably for the purpose of making it more difficult for them to do that or, indeed, deterring them from their work? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 543 Rear Adm. Smith-That is correct. Senator BRANDIS-It continues: ... however, the situation calmed down with further reference to the video evidence taken which could adversely affect any claims for refugee status. What does that mean, Admiral? Rear Adm. Smith-In an attempt to regain some calm among the people on board this vessel-there was video footage being taken of the events as they unfolded-the boarding officer advised the UAs that this footage, if they continued the behaviour that they were engaged in, could be used against them in subsequent considerations of their claim for refugee status and so forth. It was all designed to calm things down. Senator BRANDIS-Am I right in thinking that at the time these events occurred the vessel was in fact at Ashmore Island, not on the high seas? Rear Adm. Smith-No, they were on the high seas at this stage. Senator BRANDIS-Were they? Rear Adm. Smith-Yes, they were. Senator BRANDIS-The next dot point- Rear Adm. Smith-Sorry, Senator, this particular incident was not at Ashmore Island. This was in fact at Christmas Island. Senator BRANDIS-The next dot point reads: Between 22 and 28 Oct WARRAMUNGA attempted to make SIEV 06 seaworthy. Acts of sabotage that had to be repaired included sugar in the fuel pump, water in the fuel, tampering with the fuel pump and engine timing, damage to throttle controls and damage to the exhaust system. Is it your evidence or is it the evidence on the basis of which this synopsis was prepared that that damage was deliberately inflicted by persons on the SIEV, not by Royal Australian Navy personnel? Rear Adm. Smith-That is our assessment. Each of those claims is supported by an operational report that was a result of the engineering staff of the ship trying to effect repairs and these were the things they found. Senator BRANDIS-And having regard to what you told us before about the situational dynamics between the crew and the asylum seekers, although I accept that you cannot be 100 per cent sure, is it your professional judgment that it is more likely than not that those events were caused by some among the asylum seekers? Rear Adm. Smith-That was our assessment. CERTAIN MARITIME INCIDENT CMI 544 SENATE-Select Friday, 5 April 2002 CHAIR-Do you know that for a fact, Admiral? Rear Adm. Smith-I said that was our assessment. CHAIR-You made that judgment. Rear Adm. Smith-That is correct. CHAIR-Did you interview- Senator BRANDIS-Senator Cook, that is why I am being careful to repeat this expression that it is an exercise in professional judgment. It is not fair to the admiral to suggest that he is saying he knows this for a fact. He is not an eyewitness, and all of these reports, as he has told us, are exercises of his professional judgment on the basis of extensive source data. CHAIR-That is entirely my point, and I am not pretending in any way, nor is the admiral, that he is an eyewitness to those events. His evidence is that he has collated these events from reports he has received from, if you like, the coalface, where the action is. I note that the admiral nods in the affirmative on that. Rear Adm. Smith-That is correct. CHAIR-Therefore what actually happened is really something that the eyewitnesses to the events can testify to, unless they have sworn evidence before us, and I do not know that we have. We have some sworn evidence. We have situation reports. We have to exercise a degree of precision in terms of our judgments, and I think the evidence stands-I do not challenge it- that essentially a judgment was made in the opinion of the officers but no-one is quite sure who did this damage. Senator BRANDIS-You accept that, don't you, Admiral Smith, that nobody can be certain of these things? Rear Adm. Smith-That is absolutely true. If I may add to that, Senator Cook, our experience with all of these SIEVs was that once we were in control of them the crew stuck to their own little area. They remained with one another. They were very benign. They did not involve themselves in any of the activities about which we have been talking here today. They very much became resigned to the circumstances. It was on the basis of that that we made the assessment that this was not damage done by crew, it was damage done by the people who were acting in the way that we have described. CHAIR-But the crew had been warned, and you read that warning into the record of this hearing, that they faced jail terms. If they continued to offend and did not turn the boat around and sail back to Indonesia, they faced significant penalties of imprisonment, I think the highest being possibly up to 20 years but the most common being about five years. They were warned of that. Therefore they knew when they were taken under your care-that is, on the Navy's vessels-that potentially they were to face criminal charges in Australia. They knew that. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 545 Rear Adm. Smith-That is correct, and indeed that is the very reason why we thought that this was very much the UAs doing this rather than the crew, because this activity was all designed to prevent the ship returning to Indonesia and if that actually occurred the crew would not be imprisoned or fined at all; we would be taking them home. This action was to stop that activity occurring. CHAIR-We would return the people smugglers to their home port without inflicting on them any sort of penalty? Rear Adm. Smith-That is exactly the situation. CHAIR-Why would we do that? Rear Adm. Smith-Because that was the policy that was provided to us, to turn these vessels around and to return them to Indonesia. So on the way back, which is what this was all about, if the crew had concerns about fines and imprisonment, sabotaging the engine would actually be contrary to their best interests because in fact what we were trying to do was to get the vessel back to Indonesia, with them on board. CHAIR-I do not want to interfere with Senator Brandis, because he has the call and he can rightfully expect not to be interfered with by me, but it is a point that I may take up later. If I can just make this point: I do not have the document before me that Senator Bartlett quoted from this morning. The quotation that remains in my head is of a woman lieutenant that led a boarding party onto a SIEV. My memory of that document is that the master of this vessel was asked to turn around and go back to Indonesia, and he somewhat forthrightly and fairly directly in `blunt' language said he was not going to and continued sailing to Australia. There can be no refugees coming into this country illegally unless the crew of a vessel sails them into our territorial waters and lands them on an Australian shore. Our policy was to simply to return those people to their homes without any penalty on them? Rear Adm. Smith-I clearly cannot comment on the policy. The direction I was given was to intercept, board and return these vessels to Indonesia, and that is what we did. CHAIR-But don't you think it puts the Navy in a weak position that you threaten these people by telling them that they face jail penalties and then, when you have them in your custody, you return them safely to home without any penalty being exacted at all? Rear Adm. Smith-We did not consider that to be an issue. CHAIR-Wouldn't you consider any future warnings you gave, if the conspiracy theory that Senator Brandis has that- Senator BRANDIS-I am not proposing a conspiracy theory; I am merely asking him to describe conduct that he has analysed and upon which he has passed a professional judgment. CHAIR-You were seeking to establish-if `conspiracy' is wrong, there must be some other word that I cannot bring to mind- CERTAIN MARITIME INCIDENT CMI 546 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-I will accept `pattern of conduct'. CHAIR-Pattern of conduct-all right. A global pattern of conduct had been established which may be the smugglers, which may be the refugees. That is an open question. In some cases it would be the refugees. In the case of the Romanian gipsies who were referred to, it was directly identified as the refugees. But if that type of intelligence were exchanged between the people smugglers, they would know in future SIEVs that if you had issued this warning and they kept going and if you then later took them into custody they would be safely returned home and the warning would amount to nothing. Where is the deterrence in that? Rear Adm. Smith-Again, I am not prepared to comment on the policy. The policy was that we were to return these vessels, and that is what we did. CHAIR-Thank you. I am sorry, Senator Brandis. Senator BRANDIS-That is fine, Chair. If I feel that my indulgence is being exhausted, I will complain. CHAIR-I am sure you will, in your judgment, exercise indulgence when I am questioning as well. Senator BRANDIS-The questions did seem to me to be relevant and clarifying, if I may say so. Admiral Smith, in any event, the conclusion in your professional judgment on the basis of the source material you assessed is that it is likely that this conduct was engaged in by the asylum seekers, not the crew? Rear Adm. Smith-That is correct. Senator BRANDIS-Admiral Smith, there is no SEIV7 and there are several different incidents in relation to SEIV7. Senator Mason will take the first. Senator MASON-Admiral, I might first take you through the event summary and then take you to incident 1, and then I will refer to particular witness statements from incident 1, and then Senator Brandis will take up incident 2 and so forth. If we could just quickly do the event summary, according to your matrix, SEIV7 is an incident where children were actually and/or threatened to be thrown or dropped overboard; is that correct? Rear Adm. Smith-That is correct. Senator MASON-Just briefly referring to your event summary, under the second heading `Custody at AI'-Ashmore Island-it states: After arrival on the afternoon of 22 October ... irate male PIIs caused a disturbance demanding to know the details of their destination. PIIs were apparently aware of the fate of SEIV 05 (1st to be returned to ID) and stated intention to not be returned. Admiral, it says that SEIV5 was the first to be returned to Indonesia. What do you mean by that? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 547 Rear Adm. Smith-That was the first SIEV after the policy adjustment that we received from Canberra, directing us to return the vessels to Indonesia rather than bring them into Ashmore or Christmas Island for transportation to some other place. Senator MASON-The illegal immigrants were apparently aware of the failure of SIEV5? Rear Adm. Smith-That is correct. Senator MASON-The second dot point reads: Situation remained under control until forenoon 24 October, when approximately 15 PII (majority wearing life jackets) jumped overboard and a small child (approximately three years old) was also dropped into the water by one of the PII on board the SIEV. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-The next heading is `removal to Indonesia'. This involves HMAS Arunta. The third dot point is about the conduct of the illegal immigrants that we have been discussing now for quite some time. It reads: Threats of self-harm and deliberate damage to the SIEV were made and attempted. Incidents including threats to jump overboard, threats to throw a child overboard, PII actually jumping into the water, dousing themselves with fuel, damage to guy wires of the SIEV mast, damage to railings, starting a fire in the hold, and splashing of fuel on deck. PII broke through the SIEV's engineering space bulkhead but were repelled by the TSE using Pepper Spray. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-Again, that is a course of conduct that has been identified on several occasions so far? Rear Adm. Smith-Yes. Senator MASON-On the next page of your event summary document- CHAIR-I am sorry to be a pest, but I want to follow up on a point here. With respect to the second dot point under `custody at Ashmore Island', is this occurring in the lagoon at Ashmore Island? Rear Adm. Smith-That is correct. CHAIR-As I recall the lagoon, it is a fairly charming, tropical piece of Australia. The second dot point says, as has been correctly read to you by Senator Mason: The situation remained under control until forenoon 24 October, when approximately 15 PIIs (majority wearing life jackets) jumped overboard ... CERTAIN MARITIME INCIDENT CMI 548 SENATE-Select Friday, 5 April 2002 It goes on, as he correctly read: ... and a small child (approximately three years old) was also dropped into the water. What actually happened? Was the child passed to someone in a life jacket? Rear Adm. Smith-No, that is not the case. This spontaneous reaction of the UAs to jump into the water was not triggered by any particular incident. They just began to take this action. The child in question-and there are statements that I believe you have which describe the circumstances of this-was held over the side by an arm. The child appeared to be dropped, or slipped, from the mother who was holding her over the side. CHAIR-To the arms of someone below? Rear Adm. Smith-No, into the water. Then one of the UAs, who was already in the water, swam across to the baby, rescued the baby and took it back to the ship's side. Senator JACINTA COLLINS-Was the child- Rear Adm. Smith-I do not believe so, but I would have to check that. CHAIR-Were they within swimming distance of the beach? Rear Adm. Smith-They were in the middle of the lagoon. There is some distance- CHAIR-It is a big lagoon. Rear Adm. Smith-Yes. Senator BRANDIS-Do you know if they could swim? Rear Adm. Smith-In fact- CHAIR-I am not talking about the kid. Senator BRANDIS-I am sorry. CHAIR-I do not think a three-year old Afghani or Iraqi is likely to be trying out for the Olympic side. Rear Adm. Smith-That is my understanding as well. Many of them cannot swim. Senator JACINTA COLLINS-The advice is to not even try to teach them until they are older than about three. CHAIR-That is the Taliban: particularly if they are a girl, don't teach them anything. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 549 Senator MASON-On the next page of your event summary with respect to SIEV7, you mention incident 1. The first dot point says that statements from members of the boarding party were taken. I am going to refer to those now. Do you have them? Rear Adm. Smith-Yes, I do. Senator MASON-Commencing with executive officer Lieutenant Commander Mead. I think, Rear Admiral, you will agree that even though your event summary is an adequate description of some of the highlight events, this chronology provided by members of the crew gives a better minute by minute analysis of what it actually felt like to be there at the time. Rear Adm. Smith-Yes. Senator MASON-Rather than sitting in Parliament House six months later analysing it under a microscope. Rear Adm. Smith-I would agree with that. Senator MASON-I turn then first to Lieutenant Commander Mead's statement. I will not go through it all. I am sure the Chairman would not enjoy that. I will go as quickly as I can. Can we go to 12 o'clock? Rear Adm. Smith-Yes. Senator MASON-It says: Verbal confrontation between SP/TSE ... What are SP and TSE? Rear Adm. Smith-I assume he is talking about his boarding party there. SP means standing party. Senator MASON-Okay, between them and the PIIs. He goes on that the illegal immigrants: ... threatened to commit suicide and `we will kill everyone [referring to themselves]'. Five minutes later at 1205, he says: PIIs destroyed a starboard guardrail and support super structure. PIIs dousing themselves with diesel. PIIs covered with AFFF. What does that mean? Rear Adm. Smith-That is a fire retardant. It comes out of a fire extinguisher. Senator MASON-Okay. He continues with: CERTAIN MARITIME INCIDENT CMI 550 SENATE-Select Friday, 5 April 2002 Threats to set SIEV on fire. Then at 1215, which is 10 minutes on, he notes: PIIs puncture fwd port fuel tank on FX (approx 1000 litres diesel). Fuel running on deck over personnel. Does that include personnel of the boarding party? Rear Adm. Smith-That does indeed include the boarding party-the standing party and the TSE. Senator MASON-Thank you. He continues BPO orders STBD 30 and max revs to initiate heel to port and let fuel run off SIEV side. I understand it turned the boat so the fuel came off the deck. Rear Adm. Smith-That is correct. Senator MASON-He adds: Rags with fuel thrown overside. 1 x PII standing on fwd mast with cloth alight. Cloth thrown overboard by TSE. Several personnel fainting. Senator BRANDIS-Just before Senator Mason goes on, Rear Admiral Smith, come back to 12 o'clock where he says that `PIIs threaten we will kill everyone', referring to themselves. That is not to be read as a threat to kill naval personnel, is it? Rear Adm. Smith-No, that is referring to themselves and suicide. Senator MASON-Were there children on that ship? Rear Adm. Smith-Yes, there were. Senator MASON-Thank you. CHAIR-What nationals were these? Were they Afghanis or Iraqis? Rear Adm. Smith-I am not sure, quite frankly. We did not tend to differentiate too much. But I can find out if there was a predominant nationality. I might also add that all of these events that you have just described are on a video. CHAIR-Would you agree with my following hypothesis? They have fled Saddam Hussein-or they have got away from the Taliban-and they have made their way at the cost of their life savings to Indonesia. They have spent their money hiring people smugglers to get them to Ashmore and the Cartier Islands. They are in the lagoon within sight of their destination, and they are being frustrated. In those circumstances, those sorts of threats are made out of frustration rather than out of intent. Is that a reasonable hypothesis? CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 551 Rear Adm. Smith-One could assume that. That is one way of explaining the behaviour. Senator BRANDIS-When Senator Cook says `made out of intent', one of the intents is apparent from your earlier evidence. It is to bring pressure to bear or to use moral blackmail on naval personnel so as to secure the result they were demanding-that is of forcible entry into Australian territory. Rear Adm. Smith-That is another way of viewing these actions. That is the view that we hold as their reason for doing what they did. Senator BRANDIS-And that is your professional judgment on the basis of your assessment of this primary data? Rear Adm. Smith-That is correct. CHAIR-Your professional judgment is that it was to blackmail and not to express on their behalf the frustration that, within sight of their destination, they were being denied access to their goal. Your judgment is not to accept that as an explanation but to think that this was a continuance of an orchestrated effort, to quote Senator Brandis, `to engage in moral blackmail'? Rear Adm. Smith-That was our assessment, Senator. The only people between them and their goal was the Royal Australian Navy, and they were doing everything in their power to in- fluence us to back off from what we were doing. CHAIR-But would you agree that both options are open, both possibilities are true? Rear Adm. Smith-There are certainly a number of possibilities. Senator MASON-Admiral, 12.35 is an entry under Lieutenant Commander Mead's statement: Fwd fuel tank thrown overboard. Starboard tank (contaminated water) punctured. What does that mean? Rear Adm. Smith-That would have been a water tank that obviously had contaminated water in it and they have done some damage to that tank. Senator MASON-Before I go on, can I just refer you back to the previous page, 11.50 in the morning. It says: Requested PIIs Mohammed and Hussein for `round table' discussion with Farsi interpreter.' And, in that paragraph, Mohammed and Hussein are mentioned a couple of times. Do you know who they are? CERTAIN MARITIME INCIDENT CMI 552 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-They were two of the unauthorised arrivals that were on board that were perceived to be the leaders of this particular group. The Farsi interpreter was a soldier that was embarked for the purpose-an Australian soldier that is. Senator MASON-In a sense, they were thought to be leaders of the illegal immigrants. Rear Adm. Smith-That is correct. That was the assessment of the boarding officer, that these two individuals were the leaders of that particular group of illegal people. Senator MASON-I am with you, thank you. Rear Adm. Smith-And, again, that is captured on the video. Senator MASON-At 12.45 the entry is: Reports of fire in hold. Rear Adm. Smith-I am sorry, what time was that? Senator MASON-Can you go to 12.45? Rear Adm. Smith-I do not have a 12.45. Senator MASON-It is just after 12.35. Rear Adm. Smith-I am sorry, I cannot read either. Yes, I have got 12.45. I am happy. Senator MASON-At 12.45: Reports of fire in hold. BPO investigates with AFFF extinguisher ... Hussein- and this is someone you have just identified as one of the leaders- threatens Jihad- against the boarding party and asks, `Do you know Saddam Hussein?'- you are like him. Is that right? Rear Adm. Smith-That is what it says. Senator MASON-Then at 12.50: Situation extremely tense with illegal immigrants attempting to destroy the forward mast and a boarding party intervenes. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 553 Senator MASON-We might just go to Sublieutenant Harrower's statement, which is the next witness statement from SIEV7, incident 1. It gives a chronology from 11.40 through to 13.40-13.45. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-Just quickly then, 12.30: 2 men overboard. PIIs attempting to start fires, diesel being thrown everywhere up forward. Is that right? Rear Adm. Smith-That is correct. Senator MASON-And at 12.50: Wires are snapped on the fwd mast and the TSE attempting to remove the trouble makers. Rear Adm. Smith-That is correct. Senator MASON-Under the heading `Other key points'-it is in very small writing-about six dot points down-have you got that? Rear Adm. Smith-Yes, I do. Senator MASON-There is a line: One baby was being held over the side and pulled in about four different directions by PIIs. Rear Adm. Smith-That is correct. Senator MASON-Is that right? CHAIR-That is correct that it is written there. Rear Adm. Smith-It is also correct in that I have seen it on the video personally. Senator MASON-We will get to that in a second. We will get to that. Senator JACINTA COLLINS-This document has been released, hasn't it? So we do not actually need to be asking the witness, `Is this correct?' I assume he stands by his whole report. CHAIR-This is his document. Senator JACINTA COLLINS-If there are questions on something, it makes sense to ask them, but not just to read segments and say, `Is this correct?' Senator MASON-It goes to highlight the pattern of conduct, I submit. CERTAIN MARITIME INCIDENT CMI 554 SENATE-Select Friday, 5 April 2002 Senator JACINTA COLLINS-You can do that any time you like; you do not have to involve the committee in this process. Senator BRANDIS-This morning Senator Collins was taking us to task about the absence in certain cases of source documents. Senator JACINTA COLLINS-Yes. Senator BRANDIS-This witness's evidence is- Senator JACINTA COLLINS-This is not one such case. Senator BRANDIS-May I finish, please. This witness's evidence is that the Titheridge memorandum was based on a document he prepared at the request of Admiral Shackleton and Admiral Barrie. Senator JACINTA COLLINS-Yes, we know all that. Senator BRANDIS-May I finish, please. Senator JACINTA COLLINS-This is tedious repetition, Senator Brandis. CHAIR-Order! Senator BRANDIS-We have been taken to task for not identifying the source documents which produced the conclusions in the Titheridge memorandum, which was based on Admiral Smith's work. Senator JACINTA COLLINS-That is not contentious. Senator BRANDIS-That is precisely what we are now doing. Senator JACINTA COLLINS-This one is not contentious. It is here. It is released to the public. It is available. Senator BRANDIS-The problem is, Senator, that there are so many episodes of this kind of conduct. We assert a pattern of conduct, you dispute it; so we demonstrate it. Senator JACINTA COLLINS-But you are not demonstrating it. You are covering the uncontentious areas. This one is not contentious. Get to the next incident, which is very soon. There are no witness statements. CHAIR-Order! Have you finished making your objections, Senator Collins? Senator JACINTA COLLINS-I am just suggesting that the witness is able to verify his whole report, and we do not need to ask him, line by line, `Is this correct?' With all due respect, it is a waste of the committee's time and the witness's time. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 555 CHAIR-Do you have any further comment to make on that? Senator MASON-Only that we are going through this to establish a pattern of conduct. This is primary material; I am not reading out from a report. These are witness statements, as you are aware. I think it is more than appropriate that we do that. CHAIR-I understand what you are saying, Senator Collins. I said this morning that the process we are embarking on will take a lot of time and may take more time than we imagined or intended. All that is true, but I have also pursued a policy of allowing members of this committee to ask their questions relatively unhindered and allowing interjections from the point of view of clarifying certain details. While it is painstaking and time taking, I think it is appropriate for me to continue to allow that practice. Senator MASON-Admiral, I take you to the next statement, relating to SIEV7, incident 1, by Able Seaman Guille Newham. He is a linguist, among other things, on the Arunta. Rear Adm. Smith-Yes, that is correct. Senator MASON-Can you go to the second page of Able Seaman Newham's statement. About the middle of the page, it says: At 0524 I spoke to the crew- and of course he could speak to the crew because he was a linguist- in Indonesian and received the following information: They, were from Baubau, Central Sulawesi The SIEV was from Sulawesi They sailed on 18 October 2001 They received Rp2,000,000 for the trip from the SUNC's Is that correct? Rear Adm. Smith-That is what it says, yes. Senator MASON-Do you have any intelligence or any other information about the sort of money people were paying for this trip? Rear Adm. Smith-No, I do not. Senator JACINTA COLLINS-It states here that- CHAIR-Senator Mason has the call. CERTAIN MARITIME INCIDENT CMI 556 SENATE-Select Friday, 5 April 2002 Senator MASON-I have been politely indulgent, as have you been to me, Chair, so I will allow that. CHAIR-Proceed, Senator Collins. Senator JACINTA COLLINS-Thank you. It says in this statement here that Jackson is the master. Rear Adm. Smith-Where are you, Senator? Senator JACINTA COLLINS-I am in the same statement that Senator Mason just took you to. Slightly above that, it indicates a number of names, including `Jackson-Master'. As a name, `Jackson' sticks out in comparison to the other names there: Arasat, Mansu, Hanas. Do we know the ethnic origin of the master? Rear Adm. Smith-These were Indonesian crew. I can only speculate that he may have been of a Christian family in Indonesia. It is not uncommon to have those sorts of names. Senator JACINTA COLLINS-`Jackson' as an Indonesian name. Thank you. That was all. Senator MASON-I am sorry, it is difficult and I hope you can find this-can we go to three pages after that, or at the top of the page that says, `8 of 25'? I do not know whether that is of any help. Rear Adm. Smith-Yes, I do have that. Senator MASON-It is about the third paragraph. There is another incident: At 1211 I observed a male SUNC with a beard on the port side, just in front of the group of women and children, hold up a child of approximately 3-5 years of age, and indicate that he was going to throw the child overboard. I then observed TSE personnel rush forward to prevent this. Rear Adm. Smith-Yes, I see that. Senator MASON-Again, the threat to throw the child overboard is part of a pattern of conduct that you have been discussing throughout the morning? Rear Adm. Smith-That is correct. Senator MASON-Can I take you then to the next statement. It is that of K. Pedersen-and I am not sure what this is an acronym for-`ABCIS'. Rear Adm. Smith-He is an able seaman communications and information systems specialist. Senator MASON-Thank you. Can I refer you to 0510 in the morning. There, it says: AB Newman and myself are instructed to go to engine room for sitrep from CPO Bills and LS Ridgewell. A small amount of sugar was found in the rocker cover of the engine. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 557 In the final sentence of that paragraph it says: A battle lantern style light was requested ASAP, to assist in cleaning the sugar out of the rocker cover. I do not quite understand what is going on. What does that relate to? Rear Adm. Smith-This would have been in connection with the alleged sabotage to the engine. Senator MASON-With the sugar? Rear Adm. Smith-That is one of the things that had been reported, and it was contained in my summary of actions taken to sabotage the engine. Senator MASON-So, again, it is part of that pattern of conduct? Rear Adm. Smith-Yes. Senator MASON-If you go over to the next page, in the second paragraph, `at approximately 1210', it says: Fire reported on focsle of SIEV, fire extinguished with AFFF. Situation hostile. SUNCs making threats to throw child over the side of vessel. Is that correct? Rear Adm. Smith-Yes, I see that. That is correct. Senator MASON-So, again, we have the lighting of a fire; and again, there are threats to throw children over the side of the vessel. Rear Adm. Smith-That is correct. Senator MASON-That is part of that pattern of conduct? Rear Adm. Smith-Yes. Senator MASON-Then, a minute later, it says, `Multiple fires reported on focsle.' Rear Adm. Smith-Yes. Senator MASON-Then two minutes after that, it says, `Man overboard.' Two of your officers `recovered SUNC and placed back onboard.' Two minutes after that-all of these incidents are happening very quickly-it says, `SUNCs started breaking guard rails on starboard side of focsle.' Is that correct? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 558 SENATE-Select Friday, 5 April 2002 Senator MASON-So all of these things are happening one after another, very quickly. At approximately 1300, then, this statement, it says: The SUNCs punctured bladder of fuel on the focsle, fuel reported to be spilling out onto the focsle and into the hold. Reports of SUNCs attempting to light fires on focsle. So there is another attempt to light a fire? Rear Adm. Smith-Yes. Many of these comments are mirrored by these other statements. We are talking about the same incidents. Senator MASON-Sure. Rear Adm. Smith-And again, all of this is captured on video. Senator JACINTA COLLINS-Tedious repetition, I think, is the standing comment, Senator Mason. Senator MASON-I do not think so. It is getting the same course of events from several witnesses. Senator JACINTA COLLINS-But this is undisputed. Senator MASON-It is a matter of ensuring that a course of conduct is spelt out. Senator JACINTA COLLINS-There is one incident that is undisputed. Senator MASON-Can I go to the next statement, Admiral. That is the statement by Leading Seaman William Ashley Taylor. Rear Adm. Smith-Yes, I have that. Senator MASON-He provides security in the steaming party that you referred to earlier? Rear Adm. Smith-Yes, he is a clearance diver and he is part of the steaming party. Senator MASON-Can we go to the second page of this statement. Again, he was part of the boarding party, providing security. In the bottom paragraph, in the third sentence, it says: The PIIs then pierced the drum of fuel with the anchor, causing fuel to run down the port side of the vessel, and drenching myself and SGT Johnson with diesel. I yelled toward the wheelhouse roof, where the BO and TSE Commander were standing for more AFFF extinguishers, but had trouble getting their attention. More PIIs were lighting rags and threatening to ignite the drum and burn the boat. Is that right? Rear Adm. Smith-That is correct. Senator MASON-And then Leading Seaman Taylor says: CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 559 At this stage I feared for the life of SGT Johnson and myself and we attempted to remove the drum of Diesel overboard. Is that right? Rear Adm. Smith-That is correct. And again, all of this is captured on this video and you can see these two individuals up in the bow of the vessel. Senator MASON-You have mentioned that video on a couple of occasions. Do you have that with you? Rear Adm. Smith-I do not have it with me, no. Senator MASON-Just a couple more questions on that statement and then we will finish the statements. Rear Adm. Smith-I made a mistake; I do have the video here. I was not aware we had brought it with us. Senator MASON-Can you produce that, please. Rear Adm. Smith-Certainly. Senator MASON-You mention in your summary document, Rear Admiral, a video of this incident is held by you. Do you have it there? Rear Adm. Smith-That is what we are pursuing now. Senator FAULKNER-Senator Mason, you have it. We have already got the damn video. Senator MASON-I just wanted to make sure we are talking about the same thing, Senator Faulkner. Senator FAULKNER-You can tell that by looking at a videocassette, can you? Senator MASON-I want to make sure. That is why I referred to his statement, Senator Faulkner. Senator BRANDIS-I think it is to protect ourselves against unhelpful remarks like that, Senator Faulkner, that we want the video that ultimately produces the item of evidence to come from Rear Admiral Smith. Senator FAULKNER-Well, it would be the only interesting thing in the last two or three hours. Why don't you just go to a speed reading course and read all this. All this material, frankly, is now in evidence. Senator MASON-Senator Faulkner, by the end of this inquiry you would have spent a lot more time questioning than any of us. CERTAIN MARITIME INCIDENT CMI 560 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-That is not right. That is not right. Senator MASON-You have waffled on for days and we have not. You do not like to hear about a pattern of conduct that has been established. You have done everything to cover up a pattern of conduct by these people, that you do not like hearing about. Why don't you just take leave? CHAIR-Order! The meeting will come to order. Senator FAULKNER-Point of order, Mr Chairman. CHAIR-Your point of order, Senator Faulkner. Senator FAULKNER-Not one opposition senator has been given the call today for the capacity to ask a series of questions. It is now 2.30 p.m. This line of questioning is a matter of just reading into Hansard material, which is fair enough. I have got no objection to that. Anyone can read this material into Hansard-well, anyone who can read. Senator JACINTA COLLINS-It has been released. Senator FAULKNER-It is available to everybody. It is in the possession of the committee. Senator JACINTA COLLINS-And the public. Senator FAULKNER-It seems to me to be a very intellectually lazy exercise in that circumstance. But I do make the point that it is now after 2.30 p.m. There has been virtually no opportunity for any opposition senator to ask any questions of Rear Admiral Smith. I hope we do not intend to ask Rear Admiral Smith to come back yet again before the committee. It would not be unreasonable to allow some questions from some opposition senators. I am indicating to you that I am seeking the call. Senator BRANDIS-May I speak to the point of order, Mr Chairman. Firstly, the sequence was a matter of arrangement and agreement between all senators and, as we all know, we have refrained from limiting questioning periods. Secondly, as Senator Mason strove to point out when he was being interrupted by Senator Faulkner, the government senators have in fact, proportionately to our representation on this committee, taken less time than-relatively speaking-our representation would suggest. We represent three-eighths of the committee. We have taken less than three-eighths of the time. Senator FAULKNER-That is not true. Senator BRANDIS-Yes, it is, Senator Faulkner. With Commander Banks for instance, who was in evidence for nine hours, government senators' questions occupied not more than 2¾ hours. Senator JACINTA COLLINS-I would like to see the total breakdown you are applying. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 561 Senator BRANDIS-Please, Senator Collins. You have no manners. CHAIR-Order! Address the chair. Senator BRANDIS-Rear Admiral Smith was in evidence for almost four hours before any government senators were called. I asked a little over 40 minutes of questions of Rear Admiral Smith before the luncheon adjournment. We have now had a little over an hour since the lunch- eon adjournment, so this questioning period has gone for less than an hour and three-quarters. We are more than halfway through it, and that represents considerably less time than Senator Bartlett was given to question Rear Admiral Smith. Senator FAULKNER-Further to my point of order: that has nothing to do with the matter. I am indicating that no opposition Senator-which I assume Senator Brandis now agrees with- will have an opportunity to question the Admiral. What are we going to do? Do we expect the Admiral to come back again, or will we continue with the pattern that has been adopted by opposition senators after there have been lengthy periods of questioning? Everyone accepts that lengthy periods of questioning will occur at this committee; I have always accepted that. I have also always ceded the call, if I have been involved in such lengthy questioning myself. As every member of this committee knows, I have tried to ensure that we get a reasonable balance in the questioning on each and every occasion. I do not want to delay the Admiral too long. It is not an unreasonable suggestion to make now, well into the Admiral's evidence, that at some point soon an opposition senator be called to ask some questions, because none have done so since, as Senator Brandis points out, yesterday evening. That is an awfully long time to wait to ask one's first question. Senator BRANDIS-We have sat patiently too, Senator Faulkner. Through you, Mr Chairman- CHAIR-Will this add to the argument, or will it repeat the argument? Senator BRANDIS-No, it is not. It will offer a solution openly that I offered privately a few moments ago. CHAIR-How does that come up under the point of order? Senator BRANDIS-That is, let us get to the end of SIEV7, which will not take at the outside more than another 20 or 30 minutes. Then we will vacate our rights, under the informal agreement among senators, and let Senator Faulkner have the rest of the day. CHAIR-This inquiry has worked thus far on the basis of senators being deferential to one another and rotating the call so that everyone can ask questions and because we have decided to pursue issues to their conclusion rather than limit ourselves by imposing time limits. That has meant that the time of this inquiry thus far has taken longer than we anticipated-and I think longer than we conscientiously believed would have been the case. Nonetheless, I think we all understand that. It is true that the opposition have not had the call at all today, and Admiral Smith, if he goes beyond today, will at least conclude his evidence for today at four o'clock. At this current hour, that means an hour and 20 minutes of questioning if it were to cease now. CERTAIN MARITIME INCIDENT CMI 562 SENATE-Select Friday, 5 April 2002 I think it is also true that the call has been rotated so that there are no great slabs of time being taken up by one party as opposed to other parties. It is also true that an agreement was reached that Senator Bartlett go first, followed by the government, followed by the opposition. The position I am put in is that that has broken down to some extent. If we can be relatively sure that the matter can be covered by the government senators in a relatively short time, then I will allow the matter to go forward. Otherwise, you leave me with this prospect: we will pursue our position with open-ended questioning, but I will impose on each party a limited time by which they then have to concede it to another party. And we will keep rotating that between all of us, until such time as we conclude with the witness. That is a higher level of authority than the chair up until now has had, and it is not one that I particularly want to become a policeman about. But I do warn you that that is the only option I have-and I will go to that option, if we cannot get some discipline into the questioning. Senator JACINTA COLLINS-Chair, perhaps I could raise one small point. I think the in- formal arrangements that we have had previously have worked. When one particular senator has had the call, if there has been an issue of direct relevance to a matter being raised with a wit- ness, there has been an element of flexibility in ensuring that, if anyone else has had an issue on the same point, they could explore it. I think we need to be mindful of that. It also saves us time, if we are able to do it that way. Earlier today I took objection to Senator Brandis-when you, Chair, were absent-refusing to allow me to seek a primary document, which the Rear Admiral had referred to and had quoted into the record. Senator Brandis did that simply because he did not want to be interrupted. Senator BRANDIS-Because I wanted to get through these questions as fast as possible. CHAIR-That is another matter. I will impose time limits and we will then rotate. We will not alter the basic policy on that-I am not in a position to do that. But I understand that you will reasonably promptly bring this matter to a conclusion and that there will be some time for the opposition to question this witness. I do say on the dismal side of reality that it is unlikely that we will finish with Rear Admiral Smith today and it may well be that we will have to ask him to come back again-partly because of the time needed for questioning and partly because of the amount of documentation that has been given to us at very short notice, which is one reason the questioning is taking so long. Senator FAULKNER-It is so intellectually lazy and unnecessary; it is all on the public record. Senator BRANDIS-Mr Chairman, can I indicate to you that the government senators expect to finish incidents concerning SIEV7 not long after three o'clock and we will pause there and indulge Senator Faulkner's request to interrupt the agreed sequence to give him an opportunity. Senator FAULKNER-My suggestion is that the call be given to opposition senators now and we can come back to the government senators at a later stage. CHAIR-People are making suggestions. My decision is that you complete your questioning on this incident, Senator Mason. I will give consideration to what happens then. I understand that your questioning is nearing conclusion. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 563 Senator MASON-Yes, it is. Senator BRANDIS-Can I indicate to you, Mr Chairman, that my questions in relation to the other SIEV7 incidents, at least so far as concern the Arunta, will take only about 10 minutes or so. And it is important that they be asked. Senator FAULKNER-If you are going to tighten them up, that is excellent. Are you going to read all the tabled documents into Hansard? Senator BRANDIS-No, it is important that they be asked today because Senator Collins has suggested that some source documents are missing and I wish to cover that today before- Senator JACINTA COLLINS-The witness has said that source documents are not here. Senator BRANDIS-I wish to deal with that today. CHAIR-The clock is ticking away. Unless there is some other point of order, I propose to give Senator Mason the call now, on the understanding that he will complete shortly and when he does I will announce what I propose to do from that point on. Senator FAULKNER-Do not ask silly questions about videos, please. Senator MASON-Thank you, Senator Faulkner. The video is now in evidence and your understanding, Rear Admiral, is that this is of SIEV7, incident No. 1? Rear Adm. Smith-That is correct. Senator MASON-Have you seen the video? Rear Adm. Smith-I have seen my video. CHAIR-The video was in evidence from the moment it was released. Senator MASON-I have nearly finished, Chair. Do you have this document, which is the chronological sequence of events relating to the SIEV7 video? Rear Adm. Smith-Yes, I do. Senator MASON-I draw your attention to one of those events, and that is serial 14, which is on the second page. Do you agree that on this video, serial 14, the event is described as `a male potential illegal immigrant holds up child and threatens to throw child overboard. ADF members and other PIIs prevent the incident'? Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-You have seen the video, of course. Is that a fair description in your view of what the video depicts at that point? CERTAIN MARITIME INCIDENT CMI 564 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-Yes, it is. Senator BRANDIS-We table that. CHAIR-Hang on. We have released this video. Senator JACINTA COLLINS-It has been released. CHAIR-But I am just informed by the secretary that this is not exactly the same video as the video we have. Senator BRANDIS-That is why we wanted to get the one from Rear Admiral Smith. Senator MASON-Senator Faulkner did not understand that. He was trying to be too smart and got it wrong. Senator BRANDIS-Senator Faulkner either did not or pretended not to understand. CHAIR-Order! You are beginning to try the Chair. Would everyone please be quiet and allow me to make a ruling. Senator JACINTA COLLINS-I think we need a video player to establish- CHAIR-I was not aware that the video that you were talking about with Rear Admiral Smith was different, albeit an edited version of the video that we have had before. Senator MASON-Thank you, Chair. CHAIR-I am therefore not prepared to rule that this video be released until such time as the committee has satisfied itself of the differences between the videos that we have been given- Senator FAULKNER-If there are any. CHAIR-and the edited video that is now being sought to be entered into evidence. Senator BRANDIS-We agree with that. Senator MASON-Thank you, Chair. CHAIR-Do I understand that at this point you have- Senator MASON-I have finished on incident 1, SIEV7. Senator BRANDIS-In view of what has just come yet again from Senator Collins, I would like to tidy up the other incidents. CHAIR-You have a request before you from Senator Faulkner to enable him to- CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 565 Senator BRANDIS-I will yield to Senator Faulkner the moment I am finished, and I will finish as quickly as I can. It will not take me long. Senator FAULKNER-You are not going to take long? Senator BRANDIS-No. Senator FAULKNER-That is fine; good. I am pleased my intervention has provided that discipline. CHAIR-We seem to have joy and happiness. Please proceed, Senator Brandis. Senator BRANDIS-Senator Faulkner, you do not do yourself any credit. What I informally offered you did not require a theatrical performance to make a point. CHAIR-Order! Senator Brandis, please be quiet. Senator FAULKNER-I was worried about your tipstaff getting carried away! CHAIR-Order! Please ask questions rather than debate the issue among the committee. The committee will have plenty of time to have private meetings to debate these matters, but we are here wasting Admiral Smith's time. Please ask questions of the witness. Senator BRANDIS-Admiral Smith, I ask you to take up your minute-that is, the minute prepared for the Chief of Navy-and the Titheridge minute. Do you have both of those documents? Rear Adm. Smith-Yes, I do. Senator BRANDIS-Please go to enclosure 2 to the Titheridge minute and enclosure 3 to your minute. Rear Adm. Smith-Yes, I have those. Senator BRANDIS-Would you confirm for me that-save for the enclosure number, some identifying code information beneath enclosure 3 in your minute and formatting differences- the text of those two documents-that is, enclosure 2 to the Titheridge memorandum and enclosure 3 to your minute-is identical? Rear Adm. Smith-That is correct. Senator BRANDIS-I take you to incident 2 and, for ease of explication, let us concentrate on your memorandum. That is an intended reference to an incident which occurred involving SIEV9 on 31 October 2001 and the Arunta. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 566 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-I also show you some documents produced to the committee last night by the Minister for Defence: firstly, a two-page signal dated 20 February 2002 to the Maritime Commander of Australia from HMAS Arunta; secondly, a one-page signal dated 21 February 2002; and, thirdly, a one-page signal dated 27 February 2002. Rear Adm. Smith-I have lost the dates there. Senator BRANDIS-The dates are to be found at the top. Rear Adm. Smith-I know where they are, but the references do not make sense. Can you go through them again for me? Senator BRANDIS-Yes. It is a four-page, stapled document. The first two pages are a signal from HMAS Arunta to MCAUST, which I take it is Maritime Commander Australia- Rear Adm. Smith-That is me, yes. Senator BRANDIS-The date I have picked up-it is on the next line, on the right-hand side of the line-20, then the zulu time entry, `FEB 02'. Rear Adm. Smith-Yes, that is correct. I have that. Senator BRANDIS-That is a two-page signal. Rear Adm. Smith-That is correct. Senator BRANDIS-The second document in the bundle is a one-page signal, and at the very top of the document we see the date `21 FEB 02'. Rear Adm. Smith-I see; that is where we were confused. The date-time group for this signal was in fact 1029/02 zulu November. Senator BRANDIS-I am sorry. Where do I find that? Rear Adm. Smith-Just above `HMAS ARUNTA'. Senator BRANDIS-I see. For the third one, can you identify the date reference? Rear Adm. Smith-That is another Arunta signal with the date-time group of 31 October 2001, 1236 zulu. Senator BRANDIS-I want to deal firstly with incident 2 and then with incident 3. As I un- derstand the position, the two-page signal dated 20 February 2002 is a signal sent to you at your request by the captain of the Arunta for the purpose of enabling you to prepare your minute- that is, the minute that had been requested of you by Admiral Shackleton. Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 567 Senator BRANDIS-And the various questions that were posed to you for the purpose of, in summary form, presenting this material-that is, date, whether or not there were threats to children, the number of the SIEV, what happened, whether statements were taken and whether there was digital or video imagery-those six questions that are identified in your minute in alphanumeric notation, are identified in the signal from the captain of the Arunta to you in the same alphanumeric notation? Rear Adm. Smith-That is correct. Senator BRANDIS-In relation to incident 2, which is what I want to concentrate on for the moment, you were given some information on an incident concerning the Arunta on 30 to 31 October 2001. You were told that a male SUNC threatened to throw a young infant overboard and then various further information is provided. Do you see that? Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-And it was on the basis of that material that you prepared that section of your minute that concerns Arunta incident 2? Rear Adm. Smith-That is correct. Senator BRANDIS-In response to question E, whether or not statements were available, you have, it is conveyed to you by the captain: Statements from members of the boarding party and boarding officer taken and held onboard ARUNTA. Do you see that? Rear Adm. Smith-That is correct. Senator BRANDIS-Have further inquiries with which you are familiar since been made in relation to the proposition that there are statements? Rear Adm. Smith-Yes, I have. I made further inquiries of the commanding officer of Arunta. He has advised me that those statements do not exist. Senator BRANDIS-Instead of statements, have you been provided instead with a different form of original source document-that is, the original signal from Arunta? Rear Adm. Smith-It is not an original signal, Senator. It is a summary of the event as they understood it from the information that they have on board. Senator BRANDIS-And that takes the form of the signal, which is the second document in the four-page bundle that I was taking you to a moment ago? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 568 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-Where do we find in these signals the signal which is the source document for incident 2? Rear Adm. Smith-This is the point that I think Senator Collins was making this morning. There is no source document by way of an operational report quoting this particular incident. Senator BRANDIS-I understand that. Rear Adm. Smith-Not every incident is contained in an operational report. The data that supports this summary by Arunta is drawn from other documents that they have on board the ship, which I have requested from the ship, and I believe they are here now; we are just reviewing them. That is how they have compiled this. Senator BRANDIS-In the letter to me and to the committee from the minister yesterday, the minister quotes from a signal reference, `ARUNTA ADA/LAB 200457Z Feb 02', where it is reported-and this is quoting from the signal from the ship: 1 x male SUNC threatened to throw young infant overboard. Restrained by Army TSE [Transit Security Element] Rear Adm. Smith-Yes, Senator. Senator BRANDIS-Where is that, please? Rear Adm. Smith-That is in that signal that you were just talking about; it is 200457Z February 2002, paragraph 5. Senator BRANDIS-Yes. So in relation to incident 2, that is the ultimate source document, or are there- Rear Adm. Smith-That is the only source document so far presented to the committee. What I am saying is that there was no underlying operational report reporting that incident. It was not included in a report but there are other documents on board the ship which support that particular event. Senator BRANDIS-They are still being looked for? Rear Adm. Smith-They have been forwarded to me already. I believe they are out the back being reviewed at the moment. Senator BRANDIS-You are currently reviewing them, and as soon as that process of re- viewing the documents obtained from the Arunta is complete, and subject to security issues, they can be produced? Rear Adm. Smith-That is correct. Senator BRANDIS-Would you go to incident 3, please- CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 569 CHAIR-Can I just ask: how many more documents are out the back that need to be reviewed to be dropped on this inquiry? I am beginning to get a bit worried about the amount of documentation that comes to us with little or no notice and we are then expected to continue our examination of you, Rear Admiral Smith. Rear Adm. Smith-The documents out the back were at the request of Senator Collins. CHAIR-Is there any other material that you are aware of that can be- Rear Adm. Smith-No, I have provided everything other than the 1700 ones that are out in that room as well. Senator BRANDIS-So we will go to incident 3, please. Again, the source of the information that you have recorded in your minute, which is then repeated in the Titheridge minute, is the signal `200457Z Feb 02' under the subheading `Incident Three', on the second page. Rear Adm. Smith-All this paper here, Senator; please forgive me if I can't find the signal. Senator BRANDIS-It is in that bundle I handed to you a moment ago. Rear Adm. Smith-The second signal? Senator BRANDIS-No, the first signal, that is, the two-page signal. Rear Adm. Smith-Yes. Senator BRANDIS-If you go to the top of the second page of the two-page signal. Rear Adm. Smith-Yes. Senator BRANDIS-You will see there under `Incident Three' 31 October 2001 at 1217Z. Rear Adm. Smith-Yes. Senator BRANDIS-The captain of the Arunta informed you in relation to request B-that is, a request for advice-whether, and here I interline, `children' were dropped, thrown or threatened and you are told: One PII attempted to throw a child overboard, as another PII attempted to strangle a child. PII restrained, children safe. Do you see that? Rear Adm. Smith-Yes. Senator BRANDIS-It is on the basis of that piece of information that you have repeated those words in your minute? CERTAIN MARITIME INCIDENT CMI 570 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-It is more than just that, Senator. That is the summary that was provided by the ship. Senator BRANDIS-I just want to trace it back to source. Rear Adm. Smith-That certainly moved forward into my report but was also substantiated by an operational report. Senator BRANDIS-I will come to that in a tick. I just want to take this in a very careful way because you will see that under `Incident Three' at paragraph (e) you are informed by the captain of the Arunta that statements-that is, the substantiating document for that proposition- Rear Adm. Smith-Yes. Senator BRANDIS-are statements from members of the boarding party and boarding officer taken and held on board the Arunta; do you see that? Rear Adm. Smith-Yes, I do. Senator BRANDIS-Can you tell us, please, what substantiation, by reference to source documents for the proposition in subparagraph (b) there in fact is. Rear Adm. Smith-There are no statements, as I have already advised the committee. Senator BRANDIS-So that is a mistake? Rear Adm. Smith-Correct. What I do have is an operational report produced by the ship at the time of this incident which contains that information. Senator BRANDIS-Is that the signal which appears at the fourth page of the four-page bundle of documents that I gave you a moment ago? Rear Adm. Smith-Assuming that my four are the same as your four, that is the signal `311236Z OCT'. Senator BRANDIS-Yes, it is. I take you about a third of the way down, after the word `GENTEXT', which I understand means general text- Rear Adm. Smith-That is correct. Senator BRANDIS-It reads: INCIDENT DETAILS/1/FOLLOWING DISTURBANCE REPORTED IN OPREP 18- that is, operations report No.18- CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 571 Rear Adm. Smith-That is correct. Senator BRANDIS-It goes on: 2 X PIIS HAVE BEEN RESTRAINED FOLLOWING THREATS TO STRANGLE OR THROW CHILDREN OVERBOARD Rear Adm. Smith-That is correct. Senator BRANDIS-In what circumstances would this signal have been prepared? Take us through, please, the process whereby a message like that is transmitted to you. Rear Adm. Smith-I have a letter from the commanding officer explaining to me how he did that very business onboard Arunta. Senator BRANDIS-I did not know about that. Can you read that into the record, please? Rear Adm. Smith-It reads: The process onboard was that the Boarding Party Comms Number, Boarding party Officer or Army TSE Commander would report incidents to the command. In incidents which were assessed as significant or sensitive, a report via one comms channel- that is, the radio- ... was usually cross-checked by checking with the BP Officer. This was not always possible due to the dynamic nature of the incident and the multiple events that were generally occurring when threats were made to throw children overboard. I was not interested at the time in recording who made the reports, I was only interested in fusing the multiple data streams into a valid tactical picture (as I would do in the Operations room). His chief petty officer, who runs the operations room, would draft the OPREPs, having examined the narratives, and would then present them to the commanding officer for release. The commanding officer was taking information that was coming to him from the SIEV via radio and other means, and that was being fused within the ship. A message was being drafted as all this was happening, and the commanding officer then released that message for distribution to the JTF commander and me. Senator BRANDIS-Of their nature-and I suppose this appears obviously enough on the face of it-these signals are in highly abbreviated or shorthand, not narrative, form. Rear Adm. Smith-That is correct. Senator BRANDIS-There is a difference between the language used in the signal on the basis of which you immediately prepared your minute about Incident 3 and the language in the source signal. Incident 3 in the signal on the basis of which you immediately prepared your report says: ONE PII ATTEMPTED TO THROW A CHILD OVERBOARD, AS ANOTHER PII ATTEMPTED TO STRANGLE A CHILD. PIIS RESTRAINED, CHILDREN SAFE CERTAIN MARITIME INCIDENT CMI 572 SENATE-Select Friday, 5 April 2002 The other signal merely says: 2 X PIIS HAVE BEEN RESTRAINED FOLLOWING THREATS TO STRANGLE OR THROW CHILDREN OVERBOARD There seem to be two differences there, as I read it. In the first signal, or what I call the source signal, they are put in the alternative-that is, the threats are `to strangle or throw' children overboard. In the second, which you might call the synopsis signal, they seem to be events that are happening concurrently. Do you agree with that? Rear Adm. Smith-Yes, I do. Senator BRANDIS-It is just not clear which of those two versions of the event is the operative version. If it matters-perhaps it does-the word that is used in the first signal is `threats' and the word that is used in the second signal is `attempts'. Do you read any significance into that? Rear Adm. Smith-Clearly there are two different meanings in the two signals. Indeed, the more recent signal, which was literally in February this year-some months after the incident- would indicate that there could have been two situations there. My reading would be that the source one-the original message-would be the one that I would subscribe to. CHAIR-Senator Brandis, 25 minutes ago you said you would be a few minutes. We had quite a firm discussion about that. I just wonder how much longer you will be. Senator BRANDIS-I have about two more questions on this incident, and then I will be very brief with incident 5. I will skip over incident 4. CHAIR-I might make a decision when you conclude to give the call to Senator Faulkner. Senator BRANDIS-That is a matter for you, Mr Chairman. CHAIR-Yes, it is. Senator BRANDIS-Can we finish with incident 3, Admiral? What the source signal and the more recent signal, which was the immediate basis of your minute, have in common is a re- port that, in order to apprehend this conduct-whether it be an attempt or a threat-the PIIs had to be restrained. Rear Adm. Smith-That is correct. Senator BRANDIS-What does that suggest to you? Rear Adm. Smith-In both the source signal and the subsequent signal there is a reference to multiple PIIs to people following threats to strangle or throw, and they were restrained. That would lead me to believe that the boarding party/TSE had a fear that they were going to do what they were threatening to do. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 573 CHAIR-Do you know that for a fact, Admiral? Rear Adm. Smith-No, I do not know that for a fact. Senator BRANDIS-Is it your professional judgment that, on the basis of your- CHAIR-You are being asked to speculate. Senator BRANDIS-Excuse me, Mr Chairman. CHAIR-No, I am the chairman of this meeting, Senator Brandis. Senator BRANDIS-I have the call, Mr Chairman. CHAIR-You have the call because I give it to you, Senator Brandis. Senator BRANDIS-Unless you withdraw it while I am completing what is plainly a sensitive piece of evidence-and one would have to wonder why you would do that-I intend to ask my question. I have one more question. CHAIR-I will reserve the right to give you the call or remove the call as I see fit, Senator Brandis, and you will be obliged to observe that ruling. Senator BRANDIS-I have one more question in relation to SIEV3. Rear Adm. Smith-Senator Cook, may I answer your question? I use my judgment. That is what I am here to do. I am an operational commander. I analyse and I assess information that is presented to me. I see no reason, other than a fear by the boarding party on the spot that these things were going to be done, for them to restrain anybody. They advised me that they restrained; I therefore assume from that that there was a real fear that these people were going to do what they were threatening to do. Otherwise they would not have restrained them. CHAIR-Thank you. I hark back to a discussion about the so-called `fog of war', which ap- parently, according to some members of this inquiry, applies only in the case of SIEV4 and not in all cases. It is the `fog of war' issue that I was going to and the certainty and absoluteness with which these things can be asserted. What we have been treated to this afternoon is a per- formance which I think skews this inquiry from its main purpose, but it is permissible and I therefore give the call to Senator Brandis. Senator BRANDIS-The question I was going to ask was merely this: is the answer you just offered in your last piece of evidence your best professional judgment on the basis of your assessment of this signal traffic? Rear Adm. Smith-Yes, it was. Senator BRANDIS-Thank you. Mr Chairman, I would like to go to incident 5. You foreshadowed that you were going to stop me. Are you going to stop me? CERTAIN MARITIME INCIDENT CMI 574 SENATE-Select Friday, 5 April 2002 CHAIR-Yes, I am, on the basis of the undertakings you gave earlier. Senator FAULKNER-Do we know how long Senator Brandis is going to take? This time, can we have an accurate assessment? Senator BRANDIS-The best I can do is to say not more than 10 minutes. CHAIR-Half an hour ago you said 10 minutes. Senator BRANDIS-And I was interrupted. CHAIR-Yes, but only for a short time. Senator JACINTA COLLINS-It seems to be a lot of evidence that we have covered this morning. CHAIR-We do have this problem of reading from the evidence that is already before us- that we have already received and have under consideration-and simply having it repeated. Senator BRANDIS-The problem is that, if I do not ask these questions, I know the political spin that certain other senators will try to put on my failure to ask the questions. That is why I have to ask the questions-to ensure that all of these documents are carefully and methodically traced back to source. CHAIR-If you are concerned about political spin, Senator Brandis, so am I. I am concerned as well about this exhibition that you are putting the Australian Navy through, where you are turning it into a political cat's paw for the government and not as a service to the community. Senator BRANDIS-That is neither a question nor a ruling. CHAIR-No, it is a comment by me and it is something that goes to the evidence before us. It is- Senator BRANDIS-Mr Chairman, I would like to proceed with- CHAIR-No, you will be quiet while I am speaking, if you do not mind. The document that you have been examining the admiral on is a document that he has been asked to prepare, and that document goes to only some questions and not all questions about this incident. Those questions that it goes to are only those questions which are beneficial to the government; they do not go to issues that are not beneficial to the government. If the Navy has been brought here to simply answer those questions that the government is delighted to have on the public record and not on all the facts, then the Navy is being used politically. That is my view and that is the cause of the concern that I have about this. Senator FAULKNER-Mr Chairman, if it helps- CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 575 Senator BRANDIS-Mr Chairman, not a single question that has come from a government senator has been ruled out of order by you-not one. CHAIR-Well, if you want me to start- Senator BRANDIS-We want you to ask like a nonpartisan chairman, Mr Chairman. CHAIR-I am offended by that remark and you will withdraw it, Senator Brandis. Senator BRANDIS-I will not withdraw it. CHAIR-You will not withdraw? Senator BRANDIS-No. CHAIR-I call upon you to withdraw that remark, Senator Brandis. Senator BRANDIS-I call for a private meeting. CHAIR-I call upon you to withdraw that remark unreservedly now. Senator BRANDIS-I call for a private meeting. CHAIR-I name you, Senator Brandis. Senator BRANDIS-I want a private meeting. CHAIR-I have named you. Please step down from the committee. Senator Faulkner. Senator FAULKNER-If Senator Brandis did not speak over the top of me, he would have heard me say that I am happy to commence my questioning in 10 minutes. But he was speaking over the top of both of us and did not hear. Senator BRANDIS-I think you were interrupting me, Senator Faulkner. CHAIR-I am not hearing you; you do not exist, Senator Brandis. Senator FAULKNER-My only comment on that is: no such luck. Senator MASON-Chair, I would like to call for a private meeting, if that is all right. Senator FAULKNER-My suggestion, Mr Chairman- Senator MASON-Chair? CHAIR-I am listening to Senator Faulkner. CERTAIN MARITIME INCIDENT CMI 576 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-My suggestion, as you would recall, Mr Chairman, is that if Senator Brandis believes he can conclude his questioning in 10 minutes, then let us deal with it. I am keen for us not to have to ask Admiral Smith back again. I do not think it is fair to ask him to come back for another day. CHAIR-I do not think it is either. Senator FAULKNER-Hopefully we can deal with these matters quickly. The only alternative I have, and to see how effective it is in the circumstances, is to try and place a range of questions on notice and ask Defence to deal, as Defence have traditionally dealt, with those questions in a timely and proper fashion. That has been their practice over the years. That might assist matters, but I do not want to delay the committee for too long. I would like to ask some questions of the Admiral, if it were possible today. That is my suggestion as to how to deal with it-just get on with it. CHAIR-Senator Brandis has accused the chair of misconduct- Senator BRANDIS-I accused the chair of partisanship. CHAIR-You do not exist at the moment, Senator Brandis-and refuses to withdraw upon request that reflection. Unless he is prepared to change his mind and can indicate privately that that is the case, I do not intend to hear from Senator Brandis this afternoon. Senator MASON-Chair, I would like to call a private meeting. CHAIR-Is it the desire of the committee to call a private meeting? Senator FAULKNER-It is not my desire, because I think that really does mean that it is very difficult to hopefully conclude the matters that we have to deal with with the witness this afternoon. Senator MASON-I think in these circumstances, Chair, it would be desirable. I am not as experienced as Senator Faulkner, but I think that when issues of this importance are raised we should have a private meeting. CHAIR-I have one request for a private meeting and I have one view that there ought not to be a private meeting. Senator JACINTA COLLINS-I do not think there should be-I think we should just continue. CHAIR-It would help me in deciding to continue if Senator Brandis would agree to withdraw his reflection on the chair. Senator FAULKNER-On a point of order: given that I had the floor and I was making my suggestion when Senator Brandis made his disorderly comment, I doubt it is going to be recorded in Hansard. One of the problems, Mr Chairman, was that as he made his disorderly CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 577 comment I was suggesting that he get the 10 minutes and we try to move through it quickly. That is the sensible way. Can I just say this, Mr Chairman: whenever anyone calls me to order-and I would have to admit having been called to order a few times over the years-I always indicate that if I have made a disorderly comment I withdraw it. I do not know what he said, but if it was disorderly he should withdraw it-and he should know that. If he feels it was not disorderly, that form of words should be able to cover the situation. I do not even know what he said, because I had the floor, but I do not think we need to worry about it. My suggestion is the sensible way of dealing with it. He should quickly withdraw if he has made a disorderly comment and get on with his questioning so that other senators get some chance today to ask a question. That is a reasonable way of dealing with it and stopping this farcical interlude. Senator BRANDIS-Mr Chairman, I have heard what Senator Faulkner has had to say- CHAIR-I am not hearing you, Senator Brandis, unless you are prepared to indicate that you will withdraw the reflection on the chair. I heard the reflection on the chair. Whether it is in Hansard or not, I heard it and I am offended by it and I ask you to withdraw it. Senator BRANDIS-Mr Chairman, no reflection on the chair was made, but if you consider a reflection on the chair was made I withdraw it. CHAIR-And you withdraw it unreservedly? Senator BRANDIS-Yes. And thank you, Senator Faulkner, for your most helpful intervention. Senator FAULKNER-Can you get on with your questioning quickly now? That would be new ground; it would be much appreciated. CHAIR-Order! In view of the withdrawal of the reflection you made on the chair, Senator Brandis, you may now continue. Senator BRANDIS-Thank you, Mr Chairman. Admiral Smith, can I take you now back to your minute on incident 5, please. Is there an incident 5 in your minute, by the way? Rear Adm. Smith-No. Senator BRANDIS-Admiral Smith, I think what you will find has happened is that some pages have been collated wrongly, and you will find a reference to incident 5 immediately after enclosure 4 concerning HMAS Warramunga. Rear Adm. Smith-Yes, I have it. Senator BRANDIS-That is in identical words to incident 5 in the Titheridge minute? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 578 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-Can you go back, please, to the four-page bundle of signals. The immediate source of that information is the reference at the foot of the second page of the two- page signal to incident 5 on 2 November 2001 at 0739Z. Rear Adm. Smith-That is correct. Senator BRANDIS-Again, the advice given in response to the question whether a child had been `dropped, thrown or threatened' is: PII threatened to throw children overboard if not permitted to cook own food. Do you see that? Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-Then, in response to question E, whether statements from members of the boarding party and boarding officer were taken and held on board Arunta, the information provided to you by the captain of the Arunta was that statements had been provided. Rear Adm. Smith-Again, that advice was in error. There were no statements to support incident 5. There was, however, another source document. Senator BRANDIS-That is what I am interested in. So that was a mistake? Rear Adm. Smith-Correct. Senator BRANDIS-At least the identification of witness statements held aboard the Arunta was a mistake made by the captain of the Arunta which you innocently repeated in your minute to Admiral Shackleton and Air Vice Marshal Titheridge innocently repeated in his minute to Senator Hill. Rear Adm. Smith-That is correct. Senator BRANDIS-But, indeed, there were original source documents of a different character to support that proposition? Rear Adm. Smith-That is correct. Senator BRANDIS-Is one of those source documents the signal on 2 November 2001 at 1029Z, which is the next page of the four-page bundle? Rear Adm. Smith-That is correct. Senator BRANDIS-And, if you look at that, does that verify at paragraph 5 `male PII threatened to throw his children overboard if he was not allowed to prepare own meal'? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 579 Senator BRANDIS-And is that signal, bearing the date 2 November, contemporaneous, or nearly contemporaneous, with the happening of the event? Rear Adm. Smith-That is correct. Senator BRANDIS-And it would have been prepared by another officer but signed off by the captain of the Arunta in the circumstances which you explained a little earlier when you read into the record the letter from the captain of the Arunta? Rear Adm. Smith-That is correct. Senator BRANDIS-Are there other source documents, beyond the signal, to support that incident? Rear Adm. Smith-Not to my knowledge. Senator BRANDIS-Are they being looked for, if they exist? Rear Adm. Smith-I am not pursuing those because I am satisfied, from my own perspective, that the operational report is the source document. Senator BRANDIS-To quickly summarise this, in relation to the five Arunta incidents, which are enclosure 3 to your minute, we have been taken at length by Senator Mason through the witness statements that support that incident? Rear Adm. Smith-That is correct. Senator BRANDIS-We are still looking for, and you are assessing outside, the source documents that support incident No. 2? Rear Adm. Smith-That is correct. Senator BRANDIS-Incident No. 3 is supported by the original signal? Rear Adm. Smith-Correct. Senator BRANDIS-We have not dealt with incident No. 4 yet-although I think I can say, uncontroversially, that that is supported by witness statements-but in deference to Senator Faulkner we will come back to that in the future. And incident No. 5 is supported by the original signal? Rear Adm. Smith-That is correct. Senator BRANDIS-Thank you. CHAIR-Does that conclude your questioning at this point, Senator Brandis? CERTAIN MARITIME INCIDENT CMI 580 SENATE-Select Friday, 5 April 2002 Senator BRANDIS-On the basis foreshadowed, yes; there are other matters to come back to. CHAIR-Can you indicate to me how long you think those other matters might take? Senator BRANDIS-They would not be finished today. Senator Mason and I have to deal with incident 4 of SIEV7, and SIEV8 to 12. I do not think that that would happen in 40 minutes. CHAIR-So that suggests that Rear Admiral Smith could be required again. Senator BRANDIS-I think that follows, yes. CHAIR-Since we have reached this point, and before I call on Senator Collins to ask questions, we have a letter from the Clerk, Mr Evans, seeking to put some issues on the record. I think everyone has seen that letter. As there is no objection, we will now release that letter. Secondly, in the case of the video, I understand that the edited video has been checked only to the extent that deletions have occurred that might identify Defence Force personnel or in any sense compromise security. My advice from the secretariat is that they are the only deletions. As the committee are in agreement, it is ordered that the video should now be publicly released. Senator JACINTA COLLINS-Rear Admiral Smith, I just want to go back to where we stand in relation to the information that is available, and that will be becoming available, to the committee. I think it is useful, following that earlier discussion, to clarify that. You said to Senator Brandis a moment ago that, in relation to incident 2 on the Arunta, you are looking for source material. Rear Adm. Smith-I have the source material now and it is being looked at at the moment. There are some security dimensions and people want to review that. It will be made available as soon as that process is complete. Senator JACINTA COLLINS-In relation to the third incident, you are saying that you have what you tabled earlier today but you do not have the primary source material. Is that correct? Rear Adm. Smith-That, as far as I am concerned, is the primary source material-that is the report of the activity as it occurred. Senator JACINTA COLLINS-But you took on notice this morning, I understood, to go back and refer to boarding logs or other material on the Arunta to see if, rather than the brief description in the operational report, you could see the full description of the incident. Rear Adm. Smith-That was in the context of incident 2; I accept that. We could do the same with all of these others, because they would be contained in other documents on board. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 581 Senator JACINTA COLLINS-When I was referring to the primary source of material, that was my meaning and not what I think Senator Brandis has responded to. I would like to see the primary source material for the reports that you tabled today. Rear Adm. Smith-I will take that on notice. Senator JACINTA COLLINS-The primary source material in relation to what you have already looked at-and will soon provide, I hope-for incident 2, incident 3, incident 4 because, unlike Senator Brandis, I do not believe the statement that has been provided actually does sustain that report, and incident 5. Rear Adm. Smith-I will take that on notice if I could, Senator. Senator JACINTA COLLINS-Okay. Earlier to Senator Brandis you read from a letter from the CO of the Arunta. Could I ask that you table that, please? Rear Adm. Smith-If I could I will just check that one as well. It was a personal letter to me. I want to see what else is in there. I only read to you what was appropriate to the questioning being pursued. I will need time to read it to see if there is anything else in there. Senator JACINTA COLLINS-Yes. This is also one of our difficulties because it is a bit difficult for us to question you on material that has just been read to us that we do not have a written record of. Rear Adm. Smith-I did not ask to read it, but this was in the context of trying to answer your question about source material and what was available and how it was developed on board Arunta. Senator JACINTA COLLINS-What was not clear to me from that letter-and you might be able to explain it to the committee-was why it was that the captain originally indicated to you that witness statements existed. According to your evidence this morning, it has become clearly apparent that they do not exist. What explanation do you have for that? Rear Adm. Smith-It is a simple explanation. The commanding officer was in fact not on board the ship when this reply was generated. It was generated by his executive officer, and the executive officer made an error in compiling it, in indicating that statements had been taken. When the commanding officer returned he realised the error and advised me of that error. Senator JACINTA COLLINS-So the XO, in preparing the report, provided you with statements in relation to incident 1 at that time? Rear Adm. Smith-Could you ask that again, please? Senator JACINTA COLLINS-We were provided with two statements with respect to incident 1. Rear Adm. Smith-Yes. CERTAIN MARITIME INCIDENT CMI 582 SENATE-Select Friday, 5 April 2002 Senator JACINTA COLLINS-Did they come from the XO when he compiled this report to you, because they are the only statements that have been furnished in relation to the Arunta? Rear Adm. Smith-Those statements were already held by us. They were not forwarded in the context of that question we posed to them. Senator JACINTA COLLINS-Okay. But the other ones do not exist? Rear Adm. Smith-There are no other statements. That is correct. Senator JACINTA COLLINS-Is there a view that they ever existed? Rear Adm. Smith-No. They never existed. It was not really our standard operating procedure to do witness statements. Our method of conducting operations, as I have explained, is to provide various sources of information to CO, and we produce these op reps. That is our authority as to what actually occurred at the time. We were not in the business at this point of taking witness statements. Some were taken, I concede that, and that was at the discretion of the CO. Subsequent to that we now have a policy where statements will be taken, but at the time that was not in force. Senator JACINTA COLLINS-Did the CO advise you of this other point as well in writing, or only what you read on the record? Rear Adm. Smith-Sorry-the other point of? Senator JACINTA COLLINS-What we were just discussing, your understanding that the witness statements do not exist. Rear Adm. Smith-He wrote to my office advising that these witness statements did not exist, and advising my office of the appropriate source document that supported each of those incidents. Senator JACINTA COLLINS-But not providing the primary source material, if there is any. Rear Adm. Smith-From our perspective the primary source is the ones that have been tabled, the op reps. You are of the view that lesser information within the ship is that primary source material. He did not provide that. Senator JACINTA COLLINS-I am suggesting that there may be-you describe it as `lesser'-more descriptive material in the ship's logs. Rear Adm. Smith-We would need to review that. I think it unlikely, but we will review it. Senator JACINTA COLLINS-You have already been asked questions by Senator Brandis about the differences between the two reports. One report indicates `threatened to'; the other report indicates `attempted to'. I am not sure if you are aware but ultimately it ended up as a CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 583 headline in the Australian last week, `Boat people tried to kill child: Libs'. So I think you can probably understand why we are trying to get to the bottom of exactly what was said and in what context and why because there is a big difference between a threat to strangle-I think I have probably threatened to throttle my child from time to time-as opposed to a serious attempt to kill a child. Rear Adm. Smith-I do understand the significance and I do understand the sensitivity, and we will attempt to get you the best clarification we can. CHAIR-The other point here too is: what is evidence? It is a quite serious point; it is fundamental to how we conduct an inquiry. The evidence is from the people who were there on the spot and saw it. We are shorthanding this by going through you, Admiral. But essentially, if we are to conclude something on `the evidence', we really do need to know what those people saw, and the only way we can do that is to actually ask them ourselves. So, by adopting this procedure, we are in fact taking a very shorthand approach which does bring into question whether or not we have truly got the true evidence. I am sure you do understand that distinction. Rear Adm. Smith-Yes. Senator JACINTA COLLINS-Those were all the questions I had in relation to the material that Senator Brandis had addressed. Senator FAULKNER-I will try and place some questions on notice to you, Admiral Smith, to try and move this along. As it turns out, you have heard the comments from Senator Brandis, who has indicated he wants to ask you a deal more questions anyway, so I am sorry to say it does appear you will be joining us again at some time in the future. I will just ask you a few questions because we are going to break at four o'clock this afternoon. CHAIR-We are indeed. Senator FAULKNER-One of the things we can agree with always, of course, is the time to conclude our hearings, you will be pleased to know, Admiral. I want to ask you, first, whether you saw an article that Laurie Oakes had written in the Bulletin magazine this year about an unclassified CDF memorandum in relation to the loss and destruction of evidence. Rear Adm. Smith-I have not read the article, but I heard you mention it previously. Senator FAULKNER-I wondered whether or not you had had an opportunity to read that memorandum. Rear Adm. Smith-Yes, I have. Senator FAULKNER-I wondered whether you were able to say to the committee in relation to that whether you were aware of any loss or destruction-it might be deliberate; it might be otherwise of course-of any material or documents that might be relevant to this particular committee's inquiry. We have heard-and I do not think we need to go over it-from Commander Banks in relation to the video numbered 8 on HMAS Adelaide. CERTAIN MARITIME INCIDENT CMI 584 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-I am not aware of a loss or destruction of any relevant evidence in this context. Indeed, after SIEV4 we began to realise the political significance and media significance of these operations and we gave some directions that evidence should be collected and safeguarded. I am satisfied that occurred. Senator FAULKNER-Thank you. You were able to indicate to the committee a little earlier today the precise time when you were able to come to the conclusion that children had not been thrown overboard? Rear Adm. Smith-Yes. Senator FAULKNER-You were able to say to us pretty precisely also when you realised that the photographs that had been publicly shown actually did not depict that incident but in fact depicted the sinking of SIEV4? Rear Adm. Smith-I have a very clear recollection of those dates. Senator FAULKNER-You might just say that again, for the purposes of the record. Rear Adm. Smith-I was advised of the allegation that a child or children had been thrown in the water on the morning of Sunday, 7 October. I continued to believe that that was the case until early on the a.m. of Tuesday, 9 October. I was very much aware of the media coverage that this incident had been receiving. I was becoming quite concerned that none of the operational reports that had come to me through the JTF commander at any time contained information saying that a child had been thrown overboard. I had been briefed by Brigadier Silverstone that there was a difference of view between himself and Commander Banks. That concerned me. So I took the unusual step of contacting Commander Banks direct on 9 October and I asked him for his account of what had occurred and what evidence he had to support the allegation of a child being thrown in the water. In that telephone call, he advised me that he himself had not seen such an event, that he had heard a number of his ship's company indicate that they had seen the event occur. I told him to get out there, to interview his people and to determine, once and for all, did this incident occur or not. That was on the Tuesday morning. I subsequently rang Rear Admiral Ritchie and told him that I had serious concerns as to our ability to prove that this incident had in fact occurred. On the Wednesday morning, 10 October, Commander Banks rang me, told me that he had interviewed the people relevant to this inci- dent, that he was satisfied that he had no evidence whatsoever to prove that this incident had occurred-the child being thrown over. I then directed him to produce a chronology of events and to signal that to me as a personal message, which he did that evening, and it was received in my headquarters on 11 October. After my call with Commander Banks on 10 October I instantly rang Rear Admiral Ritchie and told him that I was now convinced that the incident had never occurred. He advised me that he would relay that information to the CDF and he subsequently rang me back to advise me that he had made that call and passed that information. From my perspective, from that moment forward I was convinced the incident had not occurred and I was satisfied the chain of command had been informed. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 585 Senator FAULKNER-Thanks for that. It is helpful to have that in the Hansard record because it also confirms evidence that we have heard from both Rear Admiral Ritchie and Commander Banks. I think you would acknowledge that it is consistent with what they have told the inquiry. Rear Adm. Smith-Yes, I believe so. Senator FAULKNER-Thanks, Admiral. Of course, part of Rear Admiral Ritchie's communication with you does go to the point that CDF in fact is informed, because Rear Admiral Ritchie is your immediate superior in the chain of command? Rear Adm. Smith-Rear Admiral Ritchie advised me that he had spoken to the CDF on this matter. Senator FAULKNER-Did you have any discussions with CDF about this issue in October? Rear Adm. Smith-No, at no time. Senator FAULKNER-You still haven't? Rear Adm. Smith-I still have not. Senator FAULKNER-Thank you for that information. Of course, you did have a conversation with Air Vice Marshal Titheridge a week or two-that is my recollection-after the event? Rear Adm. Smith-That is correct, Senator. On 17 October Rear Admiral Ritchie was in Canberra attending, I think, a chiefs of staff committee meeting. We were at that time dealing with SIEV5, and that ship had just commenced its return-taking it back to Indonesia by Warramunga, as was our requirement. Air Vice Marshal Titheridge had to be informed of these developments as they occurred, and Rear Admiral Ritchie normally did that. I had agreed with Rear Admiral Ritchie that I would communicate direct while he was away, and that is what I did. I rang Air Vice Marshal Titheridge, and according to my phone records that occurred at 11.58 on 17 October. I advised him of what was occurring with SIEV5 and then we had a general conversation about the issue of SIEV4, photographs and children overboard et cetera. I made the point to him: did he know that none of it was true? He advised me that yes, he knew. So that again satisfied me that the chain of command were aware that there was no substance to those allegations. Senator FAULKNER-You were satisfied that the air vice marshal was clear that this matter was not true. Did it go beyond that level of satisfaction? Did you have concerns that this matter may not have been effectively communicated to ministers, for example? Was that part of your conversation with the air vice marshal? Rear Adm. Smith-No, we did not address that subject at all. It was purely satisfying myself that the air vice marshal was aware of that information. I subsequently advised Admiral Ritchie that I had that conversation with the air vice marshal. CERTAIN MARITIME INCIDENT CMI 586 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-But you were in absolutely no doubt that the air vice marshal was very clear on the point that no children had been thrown overboard? Rear Adm. Smith-I was satisfied in my own mind that he acknowledged that that was the case. Senator FAULKNER-And satisfied that the pictures of the children in the water did not depict such an event-in other words, depicted the sinking of SIEV4 as opposed to any events on the 7th? Rear Adm. Smith-I felt that implicit in our conversation, the fact that the incident never occurred, therefore the photographs could not be describing an incident that never occurred. Senator FAULKNER-Did you yourself have any contact with staff members from the staff of former Minister Reith? Rear Adm. Smith-No, I did not. Senator FAULKNER-Would you be aware of the contact, if any, that would occur at Maritime Headquarters? Rear Adm. Smith-I am aware of contact that did occur with Mr Scrafton. I was in fact in Western Australia with the Chief of Navy on the day that he made his press statement. We had attended a church service, which was a national church service- Senator FAULKNER-I am sorry to interrupt you, Admiral, but we are now talking about 8 November, are we? Rear Adm. Smith-That is correct. During the course of my time in Western Australia I was contacted by my chief of staff, Commodore Hancock, and he advised me that Mr Scrafton was seeking an opportunity to view the EOTS tape from Adelaide which I had in my safe. That authority had been given for him to do so. Mr Scrafton came to my office and viewed the tape in my office in the presence of my chief of staff. As far as I am aware, that is the only interaction we had. Senator FAULKNER-Does that mean no interaction between either you or other staff of Maritime Headquarters and Mr Hampton? Rear Adm. Smith-There was communication through the public affairs chain. I am not aware of any of my public affairs people being directly spoken to by Mr Hampton. I am aware of a request by Mr Hampton through the public affairs chain direct to the JTF commander seeking authority for Mr Hampton to speak directly to the CO of Adelaide. I was away from the headquarters that day. I was briefed on it on my return, and I was also briefed that Admiral Ritchie had made the decision and made the direction quite clear that that contact was not to be approved and that if he required information Mr Hampton was to seek that through the chain of command. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 587 Senator FAULKNER-The proper decision, in your view? Rear Adm. Smith-Absolutely. Senator FAULKNER-Why? Rear Adm. Smith-It is in my view inappropriate to have a chain of information, particularly public affairs information, external to the chain of command. Our whole way of doing business is to review information within the chain of command before its dissemination and to have a direct contact invited the dissemination of misleading information. I was particularly acutely aware of that because of the incident with the photographs. Senator FAULKNER-With the PACC unit-what terminology should I use for that? Rear Adm. Smith-It is a division within the department. Senator FAULKNER-A division. With the PACC unit, would you or Maritime Headquarters routinely be made aware of ministerial staff contact with the PACC or only in an exceptional circumstance like we had with Mr Hampton trying to find a phone number to ring Commander Banks on HMAS Adelaide? Was it the exception rather than the rule that you would be aware of? Rear Adm. Smith-It would be the exception. I would only know of those things if it di- rectly involved me. Senator FAULKNER-Was there any indication about the nature of Mr Hampton's approach-whether it was particularly aggressive or otherwise? Did that come to your attention at all? Rear Adm. Smith-I was not aware of that during this series of incidents. I became aware of that only through my reading of subsequent inquiries. Senator FAULKNER-And evidence such as Brigadier Bornholt's, I suppose. Rear Adm. Smith-That is correct. Senator FAULKNER-Apart from the two incidents you mentioned-the Hampton- Brigadier Silverstone incident and the Scrafton video incident-there are no others involving the staff of former Minister Reith? Rear Adm. Smith-No, not from my perspective. Senator FAULKNER-And there certainly would not be any involving any other ministers or prime ministerial staff, I assume? Rear Adm. Smith-No. CERTAIN MARITIME INCIDENT CMI 588 SENATE-Select Friday, 5 April 2002 Senator FAULKNER-What about contact with anyone in the Department of the Prime Minister and Cabinet, as opposed to the Prime Minister's office? Is that something that you had any experience of during Operation Relex at all? Rear Adm. Smith-I have never had any contact with anybody within the Department of the Prime Minister and Cabinet. In fact, to even be asked so would be unusual. The contact with those organisations is very much at the national strategic level of our business, and it is handled by the Strategic Command. Senator FAULKNER-The link here, of course, is the task force, as you would be aware- the IDCs that were operating. Was that pretty well exclusively dealt with at the Strategic Command level and the level of CDF and so forth? Rear Adm. Smith-That is correct, Senator. The outcomes of the IDC's deliberations on the events as they were unfolding would be relayed to us through Strategic Command. Senator FAULKNER-So you would be receiving orders, directions, about that via Rear Admiral Ritchie? Would that be the way it would work normally? Rear Adm. Smith-Yes. Either the CDF or Air Vice Marshal Titheridge would relay to Rear Admiral Ritchie what the requirement was, and he in turn would let me know and I would get on with it. Senator FAULKNER-Could you briefly, for the benefit of the committee, outline your personal experience and that of Maritime Headquarters with the photographs, which of course have become a little bit of a cause celebre for the committee. Rear Adm. Smith-We are talking here about the two photographs- Senator FAULKNER-I am talking about the two photographs. I know there was some level of contact, and it might be useful for the record for you to quickly outline that. Rear Adm. Smith-I received those two photographs on Tuesday, 9 October, I think. At the time, I thought nothing of them in particular, other than that I was very annoyed with Commander Banks in that he had transmitted these two photographs with rather a wide distribution that included direct transmission to the Defence Headquarters in Canberra, which was contrary to our public affairs plan. It was outside the chain of command. That meant that I lost control of those two photographs. We did not know where they went. Apart from that frustration, which I let him know about in due course- Senator FAULKNER-He seems to have taken it on board, I think. Rear Adm. Smith-He got the message. Apart from that, I had no real problem with those two photographs. I knew exactly what they were describing. I knew exactly what his motives were for sending it, which was prior to a new ship's company. Frankly, I thought nothing of it. It was only on the evening of Wednesday, 10 October, when I saw them used in the way that they were used, that I became greatly concerned and expressed that concern to my superiors. CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 589 Senator FAULKNER-While I appreciate-and I made this point to Rear Admiral Ritchie-that you know what the photographs relate to, would you acknowledge that certainly the Australian public and media who were representing the photos in a public way were not aware of the incident that they were depicting? Rear Adm. Smith-I am aware that there was a great deal of confusion about what those photographs were all about. Senator FAULKNER-I hear your use of the word `confusion': is it confusion or is it misrepresentation? They were in the public arena and were put forward as evidentiary support that children had been thrown overboard. I do take issue with your use of the word `confusion'. I think it was a misrepresentation of what the photos were actually depicting. Rear Adm. Smith-May I come back at you, Senator: you asked me about the public perception of these things, and my understanding of the public perception was that there was some confusion as to what they actually represented. My own words on the evening of 10 October to Rear Admiral Ritchie and to Vice Admiral Shackleton were that these photographs were being misrepresented. I had no doubt about what was happening. Senator FAULKNER-We have not talked about the video here, but we have talked about the fact that children had not been thrown overboard in the SIEV4 incident-fact one. Fact two is that the photos did not depict such an incident-in fact, it was the sinking of SIEV4. Were you satisfied that those matters had been adequately dealt with by the 11th, because of your re- sponsibilities within the chain of command? Rear Adm. Smith-I was satisfied that I had fulfilled my responsibilities. I had reported them to Rear Admiral Ritchie, who is my operational chain of command, and I had reported them to the Chief of Navy, who is my administrative chain of command. Both of those officers advised me that they were going to contact the CDF that night. Both told me that they had. Indeed, Rear Admiral Ritchie went on to say that the CDF had spoken to the minister and explained our concerns and that that would be the end of it. On the 11th and from that point forward until, I guess, 8 November, I saw nothing more on the photographs and I assumed that that was the end of that particular issue. It was only when they resurfaced again in November that both Rear Admiral Ritchie and I realised that this was still a live issue. Senator FAULKNER-So what did you do then? This issue became public again on 7 and 8 November last year. It might be useful for you to indicate, for the purposes of the record, what actions you took at that time. Rear Adm. Smith-I again informed my chain of command-both Rear Admiral Ritchie and the Chief of Navy-that those photographs did not represent what they were purported to represent and that indeed that incident had not occurred. Both Rear Admiral Ritchie and I were very satisfied that those in the chain of command were aware of that. Senator FAULKNER-Did you have direct contact with the Chief of Navy about that matter? CERTAIN MARITIME INCIDENT CMI 590 SENATE-Select Friday, 5 April 2002 Rear Adm. Smith-I ring the Chief of Navy a number of times each day. As I am sure you understand, he is not in the chain of command, but I keep him appraised of what I am doing within the operational chain of command and I do that on a regular basis almost every day. Senator FAULKNER-What was the timing of the concerns you expressed to the Chief of Navy about the matter because it was in the public arena again? Tell me about the concerns that you expressed to him and their interface with the Chief of Navy's statement of 8 November and what I describe as the so-called clarifying statement later that day? Rear Adm. Smith-As I said, I was with the Chief of Navy on that day. We had travelled together from the launching of submarine Rankin. He had been out of the country for some time. During that particular visit, I advised him again that there was no evidence to support the allegation that a child had been thrown overboard, and that the photographs that had been used were a misrepresentation of that alleged incident. I was satisfied that he understood that, and indeed I believe that it may have influenced what he said when he made his press statement, because he was basically saying that this had not occurred and that there were only threats of this occurring. I was satisfied in my own mind that the people who should know knew. Senator FAULKNER-Did the Chief of Navy discuss with you the so-called clarifying statement? Rear Adm. Smith-No, he did not. I remained behind at Stirling when he had left there. By the time I had rejoined him in the hotel in which we were both staying, this whole business had surfaced. The clarifying statement had been released and he apprised me of the circumstances. Senator FAULKNER-Was that a conversation between you and the Chief of Navy? Rear Adm. Smith-It was just a conversation telling me what had occurred. Senator FAULKNER-Did you express a view to the Chief of Navy about the circumstances of the clarifying statement? Rear Adm. Smith-No, I did not. Senator FAULKNER-Do you believe that the chain of command failed in relation to these SIEV4 incidents. I am not talking about the operational matters; I am talking about the children overboard and related matters. Do you think the chain of command failed? Rear Adm. Smith-I heard you ask Rear Admiral Ritchie that question, and I have been wondering how I might answer that when you inevitably asked me the same one. I do not think the chain of command failed. I think the chain of command has stood us in great stead through every operation we have been involved in, and I do not see this as being any different. The question, really, I think you are asking is how the information, once relayed through the chain of command, was used-and I cannot comment on that. Senator FAULKNER-You would appreciate this. You look at it from the point of view of a very senior naval officer; I look at it from the point of view of a politician who sees misinformation-I am trying to put no spin on this-stand uncorrected throughout the period of CERTAIN MARITIME INCIDENT Friday, 5 April 2002 SENATE-Select CMI 591 an election campaign. You would appreciate in the political cycle how sensitive that is. I do not doubt that you have that understanding. So I think you know why I ask the question in the way I do. You can say to me, `I report this to my superiors in the chain of command.' It is a question, as you heard me ask Rear Admiral Ritchie, of whether he believed or you believed the chain of command failed. I ask you because a misrepresentation runs through the whole of the election campaign. The truth about the incident and the so-called evidentiary support-the video and the photographs-do not come out until well after the election campaign. As I said to Rear Admiral Ritchie, I do think it is a reasonable question to ask in that circumstance-the seriousness of this issue at such a significant time in relation to the public debate on these issues. I know there are other defence imperatives, but I am for the moment focusing on those which were significant in the public mind. That is why I tried to press with Rear Admiral Ritchie, and I will now with you, this question of the chain of command-whether it has failed and whether those outside Defence are entitled to say that they feel let down by it. Rear Adm. Smith-I do understand the sensitivity of the issue that you are describing. I stand by my comment that I do not think the chain of command failed. I think the chain of command has served us well. I cannot comment, however, on the use of that information once it had been relayed through the chain of command. I had no visibility of that and it would be im- proper for me to comment on it. Senator FAULKNER-But do you draw lessons from the actual affair itself, or have you personally as Maritime Commander drawn lessons from this? Rear Adm. Smith-I have learned a lot from this process. Senator FAULKNER-Could you say to us what you might have learned? Rear Adm. Smith-I guess in an operation as politically sensitive as this thing has become, our way of communicating some of the information relevant to that operation, which we had been directed to do by telephone, I would not do it that way again. I would commit to paper those communications simply because, when it gets to a forum such as this, it appears that what we say as our word is not good enough. Senator FAULKNER-In retrospect you are critical of the special arrangement that was in place-the direct telephonic reporting to Air Vice Marshal Titheridge? Rear Adm. Smith-I understand the imperative that drove the requirement for that. I think on balance that it contributed to some of the confusion. But that aside, to 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. Senator FAULKNER-Beyond the special arrangement, Brigadier Silverstone says to us he was critical to you and to maritime command, if you like, about your own and others in the CERTAIN MARITIME INCIDENT CMI 592 SENATE-Select Friday, 5 April 2002 maritime command also in fact bypassing the chain of command in terms of direct telephonic communications with Commander Banks and HMAS Adelaide. Rear Adm. Smith-Yes. Senator FAULKNER-Do you accept that criticism? Rear Adm. Smith-I accept full responsibility for that. They did that at my direction. I instigated that action because I was becoming concerned at the differing reports that I was getting. I was aware of the different points of view of Commander Banks and Brigadier Silverstone. I was acutely aware of the sensitivity of this particular subject and the visibility it was getting within the media. I just wanted to cut to the chase and find out what actually happened. I did not think I was going to necessarily get that in a timely manner, given the differences that were evident between the brigadier and Commander Banks, and I chose to go directly to the source. That is what I did and I gave my staff authority to pursue other matters on my behalf that way. It was going outside the chain of command, something that I do not do lightly, but it is my prerogative as the commander to do that and I made that point to Brigadier Silverstone and I think he understood that. Senator FAULKNER-But do you regret it now? Rear Adm. Smith-I do not regret it at all, because I got to the bottom of it in a day. CHAIR-I am reluctant to stop you in full flight, Senator Faulkner, given that you have just started really, but it is after the hour of four. Senator FAULKNER-It is. I had a small number of questions, and a very brief amount of time to ask those questions, unlike the courtesy extended to other senators. But I understand. CHAIR-That concludes our hearing for today. We will resume at 7 p.m. on Thursday, 11 April. Thank you very much, Admiral Smith, for your appearance today and for your cooperation with the inquiry. Committee adjourned at 4.06 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident THURSDAY, 11 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence................................596 Thursday, 11 April 2002 SENATE-Select CMI 595 Committee met at 7.04 p.m. CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. The remarks I am about to make you have heard 100 times, but I am bound to make them so I will do so as quickly and reasonably as I can. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the committee are available from secretarial staff, and copies have been placed near the entrance to the hearing room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 11 o'clock tonight and will resume at 9 a.m. tomorrow. The waiting room next door is for Defence staff and witnesses only. It is a private area to which the press and public have no access. We shall attempt to deal as expeditiously as possible with witnesses. I urge witnesses to be concise in their answers and senators to keep their questions tightly targeted. The committee has agreed that it will hear from Rear Admiral Smith this evening and tomorrow we will start at 9 o'clock with Air Vice Marshal Titheridge followed by Admiral Barrie. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person, and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, you may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. When witnesses are first called upon to answer a question they should state clearly their names and positions. Witnesses will be asked to make an oath or affirmation. The committee has agreed to a request from certain witnesses that they be accompanied by counsel. However, counsel has no right to address the committee nor will the committee address questions to counsel. Before I open, we are scheduled to finish at 11. That does not mean to say we have to go through until that hour. It could be that everyone will be so focused tonight that we could rise a lot earlier. I am sure that would make the support staff in this building, not to mention the witnesses and the rest of us, quite happy. I do urge the committee to be concise and direct about their questions and see if we can come in under the hour set. The call when we adjourned was with you, Senator Faulkner. Senator FAULKNER-Thank you, Mr Chairman. I had had a very brief opportunity to ask some questions of Admiral Smith. I will be brief again tonight. CERTAIN MARITIME INCIDENT CMI 596 SENATE-Select Thursday, 11 April 2002 SMITH, Rear Admiral Geoffrey, Maritime Commander, Department of Defence Rear Adm. Smith-Before Senator Faulkner starts, I do have some answers to some questions that were posed to me. Would you prefer me to do those up-front? CHAIR-I would prefer that they be done up-front. Rear Adm. Smith-While giving evidence to the Senate last Friday I became concerned that the Senate committee had questioned the integrity of the operational reporting from HMAS ships. I note that these concerns were also commented on by some elements of the media. In the case of Operation Relex, visual observations and radio reports from numerous individuals were recorded and the information fused into regular formal operational signals which we call opposition reps and situation reports-or sit reps. These reports were from the ships concerned in the activity. This procedure is our normal reporting process relating to operations. I can now proffer as an example of the narrative sourced from verbal reports and extracts from HMAS Arunta's boarding log for SIEV9 incidents 2, 3 and 5, as requested initially by Senator Collins. I have those documents available but, as with previous logs, they are for use by the committee and not cleared for public release. I hand those to the committee. CHAIR-We will note that they are not for public release. We will receive them as a committee. Rear Adm. Smith-Thank you. CHAIR-The committee will have a look at them. There may be questions based on them, but I do ask committee members that if they ask questions based on this latest material they observe any niceties of security. Rear Adm. Smith-Referring to Hansard, page 582, in reply to a question from Senator Collins concerning statements, I made the observation there that it was not our standard operating procedure to obtain witness statements from all the incidents as they were occurring. It was not seen as necessary as our normal reporting process-which I just spoke about-was, we felt, appropriate. I personally became quite concerned when you, Mr Chairman, made the observation-recorded on page 583 of Hansard-when talking about evidence: But essentially, if we are to conclude something on `the evidence', we really do need to know what those people saw, and the only way we can do that is to actually ask them ourselves. There are other things around that comment. On the basis of your concern, Senator, and feeling a sincere obligation to present to the committee the facts, I have gone out to the ships involved in SIEV1 to SIEV12. I have sought from the available witnesses additional supplementary statements to corroborate the incidents as reported for SIEV1 to SIEV3 and 5 to 12. Whilst I am happy to have the committee view these statements-and I believe a copy is with the secretariat-their release is subject to ministerial approval, following a review by the CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 597 department. Their aim is to demonstrate that the information in the SIEV summary information sheets that were provided to the committee last Friday is credible, accurate and correct. With the statements that were requested by Senator Brandis and provided to the committee, together with these new statements, the committee will now have multisourced evidence that corroborates each incident in the SIEV summary sheets. I believe this information should satisfy the requirements and issues raised by Senators Cook, Collins and Brandis to me on 5 April and outstanding as questions on notice. Finally, I would like to clarify a couple of other issues. The first relates to questioning by Senator Bartlett regarding the Navy's historical role in the interception of SIEVs. Hansard at page 489 on 5 April alludes to Operation Cranberry, starting in 1989. For the record, the Navy's role in the interception of SIEVs commenced in 1989. However, Operation Cranberry was not formalised until 1997. Senator Collins asked to sight a signal from SIEV9, incident 4-referred to in Hansard at pages 498 and 499 as folio 48. I have that document should Senator Collins require to view it. The outstanding issues relate to an incident on HMAS Dubbo, referred to at Hansard page 496 and also at page 502, where Senator Bartlett asked how many children were involved in SIEV6 and SIEV12. I will provide answers to both of those as soon as possible. I understand that naval headquarters has replied to the issue mentioned at Hansard page 481, from Senator Faulkner, relating to the source of the request for the document now referred to as the Smith report. Finally, Mr Chairman, I would like to clarify an answer to Senator Bartlett's question concerning some evidence produced by Commander Banks during his testimony concerning whether or not SIEV4 entered Australian territorial waters. His answer was no. The question raised by Senator Bartlett was: did SIEV4 at any stage enter Australian territorial waters? The correct response is: SIEV4 did not enter Australian territorial sea prior to being intercepted by HMAS Adelaide. After interception and in the course of operations to detain SIEV4, HMAS Adelaide and SIEV4 entered the Australian territorial sea during the periods from 07 1500 zulu to 07 2100 zulu October, a period of six hours, and 08 0300 zulu to 08 0400 zulu October as well. The distance from Christmas Island on the two occasions varied, but was greater than eight nautical miles. Mr Chairman, that concludes my statement. CHAIR-Thank you, Admiral Smith. Before we go to questions there may be some discussion of this matter by the committee and I will allow that to occur in a moment, if there is any. I will certainly not delay it, but in order to expedite it, can I just say for myself that when I raised that question you have referred to, it was as much an issue directed to the committee as it was to anyone else. My concern was not what you were saying nor was it a concern to reflect upon the veracity of what the Navy's position was. The concern I was raising was that the material being presented to us was, as you have pointed out, prepared for op reps or sit reps, rather than as `evidence' to be provided to a committee of inquiry with our terms of reference and our particular focus. It was really a matter of defining the difference between what this material was, why it was composed and what it consisted of, and what might be regarded as `evidence', that evidence meaning being a more judicial meaning because there was a debate CERTAIN MARITIME INCIDENT CMI 598 SENATE-Select Thursday, 11 April 2002 going on, or assertions being made here, about evidence and proof and things of that nature. It was just a care on my part to make a distinction. Having said that, what you have done now is go even more deeply into what is genuinely closer to real evidence. I appreciate that and thank you very much for it, Admiral Smith. It will be an aid to the inquiry. Senator BRANDIS-Admiral Smith, how many copies of the new bundle of statements do you have with you? Rear Adm. Smith-I have one myself and one was provided to the secretariat, Senator. Senator BRANDIS-Mr Chairman, I think I should make the obvious point that it is going to be very difficult for us to assimilate this information, and I am loath to ask that the matter be stood down in view of the time. I suppose if Senator Faulkner is prepared to continue then we can try to read the new statements as quickly as we may. But it is going to be a little tricky. CHAIR-I understand exactly the point that you are making. Of course, it may be that Senator Faulkner cannot read it while he is continuing, and the committee- Senator FAULKNER-Senator Brandis can have my copy. CHAIR-I think that we should receive it. It is being offered in good faith and we should receive it accordingly. When we become familiar with it, if that raises any further questions, we may have further questions to the admiral. At this stage it is offered in good faith and received accordingly. Senator FAULKNER-I do not know what is contained in the documentation but I am certain of one thing and that is we should make every endeavour and effort to complete Admiral Smith's evidence tonight. I do not know how long it will take. I do not normally like doing this, but I think we should remain until we have completed the admiral's evidence so he can be discharged and go about his other very heavy responsibilities. This is the third day he has been before this committee-I think this is, in fact, better defined as a night-and that is more than enough. We need to finish tonight; Senator Brandis and other senators can make whatever arrangements they see fit. Senator JACINTA COLLINS-I agree with Senator Faulkner. As a result of the questioning on the last occasion, I would be disappointed if Admiral Smith got the impression that I was questioning the veracity of Navy reports because that was not meant to be the nature of the questioning. The questioning was rather about some statements that did not exist and about other source material the Navy could provide us with to corroborate the story in the absence of statements or in the situation where the statements provided did not seem to actually sustain the report. I am quite happy to take it that the rear admiral has now provided us with all the material that he is aware of to sustain all of those claims and accept in good faith his view that his reports on re-examining the source material are accurate. I will take the time to look at those reports myself but I think we are in a position now where we can reach our own conclusions on the material that is before us. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 599 CHAIR-If there is no further comment- Senator FAULKNER-There is one other general issue before I move to direct questions, and this relates to your opening statement, Admiral. You indicated that Navy had provided an answer to a question on notice asked by me. Thank you for that. I can say to you that I certainly have not seen it, which is fine, but I have actually checked with the committee secretariat and it seems to be somewhere in transit, I think. Rear Adm. Smith-That was my understanding. Senator FAULKNER-I see. I am sorry. Rear Adm. Smith-I have not seen it myself, Senator, but it is my understanding that there has been that reply. Senator FAULKNER-There is no problem-if, as you say, it is on its way. I just wanted to be clear that it was not supposed to have been received. CHAIR-In view of what you put earlier-not in this most recent intervention, Senator Faulkner, but your earlier one-it is my intention to start at 9 o'clock tomorrow morning with Air Vice Marshal Titheridge. Frankly, I think the Air Vice Marshal is entitled to that respect from this committee to complete this witness tonight and it is my intention to do so. I acknowledge the remarks that I made earlier, but there are other ways of following up questions if we do not get the opportunity of asking them tonight, and putting them on notice is one of those. Senator FAULKNER-Thanks, Mr Chairman. Admiral, I want to ask a question in relation to Operation Cranberry and Operation Relex. At any stage in those operations since 1 September 2001, were any naval operations or activities delayed or put on hold pending the passage of legislation through the Commonwealth parliament? Rear Adm. Smith-In the case of Operation Cranberry there was no effect on the fleet program, which is the way we program our ships. In the case of Operation Relex, the only impact of the commencement of Operation Relex was the requirement for me to recall from South-East Asia five ships, I think it was, that were engaged in activities there. One of those activities was a regional exercise. Senator FAULKNER-So I can be satisfied that in relation to actual naval operations-I hope I am using the correct terminology here, I am using `operations' with a lower case `o'- Rear Adm. Smith-Yes. Senator FAULKNER-You may well have answered my question, but I just want to be clear on this point. I am using this as a generic term, if you like. I am using it in the context of Cranberry and Relex, but I am talking about naval operations in the broadest sense. I wondered whether there had been any orders, instructions or directions to naval ships that delayed or put on hold any activities pending the passage of legislation through parliament? CERTAIN MARITIME INCIDENT CMI 600 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-To the best of my knowledge, there was no such impact on the fleet pro- gram. As I said, with Operation Cranberry the ships that were committed to Cranberry attended at Cranberry. The ships that participated in the initial stages of Relex were involved in other ac- tivities and were recalled from South-East Asia to be employed in the context of Operation Relex. That was the only impact on their programs. Senator FAULKNER-I am speaking about this as it would relate to individual vessels involved in those two capital `O' operations. Rear Adm. Smith-Yes. Senator FAULKNER-Thanks for that, Admiral. I appreciate your answer. I want to go to the background of Operation Relex and you did, in fact, answer a question on this from Senator Bartlett on Thursday, 4 April. Senator Bartlett asked whether you were involved in the drawing up of the structure of the operation, the new rules of engagement, the mission statement and the like, and you answered that question. I wonder whether, very briefly, for the benefit of the committee we could go back a step or two before that to ask you about the planning stages of Operation Relex: what sort of time frame was there, in the early phases of the development of the operation? Let me leave it at that; I hope I have used the correct terminology, but I think you understand what I am asking. Rear Adm. Smith-Yes. As I explained once before, our method of planning operations is to, in the first instance, be provided with a warning order from the CDF, and that warning order would normally go to the Commander Australian Theatre, Admiral Ritchie. He would get together with the land, air and Maritime Commanders and we would look at what is being asked of us. In the case of Operation Relex, that warning order was received in August last year. Admiral Ritchie got us together, and he delegated to me the lead authority for the planning of this mission. Senator FAULKNER-I understood that from evidence that you have given before, but I appreciate you saying it again tonight. What goes on before the warning order is issued? I appreciate that it is CDF who issues the warning order. In an answer you gave to the committee on Thursday, 4 April-I am quoting from page 450 of the Hansard-you said: The mission was provided to me but the detail that sat behind the mission and the way that we went about the initial stages of the operation were developed within my headquarters. What I am trying to understand here is the timing of that process in relation to the issue of the warning order that you spoke of. Rear Adm. Smith-Yes; I understand the question. The process after this warning order was received and I was directed by the Theatre Commander to plan this operation involved an intensive planning activity within my headquarters. Out of that planning activity, we produced what we call a concept of operations. That concept of operations document contains within it how we are going to do what has got to be done to achieve the mission. It identifies tasks, what the purpose of the mission is and what it is we have to achieve to say that the mission has been successful-in other words, an end state. We produced that concept of operations, and we back- CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 601 briefed back to the CDF in late August. He accepted our concept of operations and he executed Operation Relex following the receipt of that concept of operations. On the basis of that, I then handed the concept to the JTF commander who, at the beginning of Operation Relex, was a naval commodore-Commodore Flotillas is the position. He works for me at Maritime Headquarters and is a deployable commander. He and his staff deployed to Darwin and from Darwin on board Manoora. Whilst on board Manoora he put out the detailed tactical messages that put into effect the concept of operations that had been planned within the headquarters. Senator FAULKNER-Did any changes of any significance occur after the concept of operations as developed by Maritime Command was provided to other authorities? Rear Adm. Smith-There were many adjustments to that document. Out of the concept of operations flows our operations order, which is where all the mechanics are. Those documents, particularly the op order, were amended over the period of the operation being conducted, and reflected the changing circumstances. The tactical messages that sit underneath the operation order, for example, are many. I do not have the exact number; let us say there are a dozen of them, addressing different parts of the operation. As the operation unfolded, as we learnt as we went, we needed to adjust some of the things that we had originally planned. For example, we experienced different levels of reaction from the UAs and we needed to adjust some of the tactical messages to reflect that experience. The decision by the government to change the legislation concerning the migration zone had an impact upon some of our tactical messages because that guidance needed to be given to the commanding officers. We needed to adjust them for that reason. And as the operation unfolded there were other impacts, other influences, that were brought to bear that necessitated us changing our modus operandi, if you like-the tactical messages that provide the framework. I might add that that is not uncommon in any operation; that is quite normal-we learn as we go, and this was no exception. Senator FAULKNER-But how many of these amendments are driven by Navy and how many are driven outside Navy? Rear Adm. Smith-I do not have the actual numbers, between one or the other. A good majority of them were driven by Navy's own experience and adjusting the way we were doing business. A number of others were as a direct result of policy changes. I mentioned one of the changes, for example, was the decision to take the SIEVs back to Indonesia. That sort of policy change necessitated adjustment to our tactical messages. Senator FAULKNER-I do not expect you to have this level of detail tonight but, to save time-as you know, I am interested in saving some time-I wonder if you would be willing to take on notice and provide for the benefit of the committee those amendments that were made as a result of policy changes. Rear Adm. Smith-Certainly. Senator FAULKNER-In asking my question on notice in that way, Rear Admiral, what I am understanding from you is that the other changes, the non-policy changes-which I could CERTAIN MARITIME INCIDENT CMI 602 SENATE-Select Thursday, 11 April 2002 also ask you for-would be more technical in nature. The non-policy changes are ones that are driven out of Navy and they relate to more technical matters, do they? Rear Adm. Smith-Yes, they do. It is really the way we do business. Senator FAULKNER-Okay. I would appreciate that, thank you very much. This means that as far as Maritime Command or Navy is concerned, you actually are not involved in the development or planning for Operation Relex until you get the warning order from CDF? That is what I understood you to say; I just want to be clear on that. Rear Adm. Smith-That is correct, Senator. Senator FAULKNER-So is there any point in my asking you about the background to the warning order? I suspect there is not. I might be better off asking CDF what the background to the warning order might be, because you do not get involved in that, I assume. Rear Adm. Smith-No, I do not; I react to the warning order. Senator FAULKNER-Are you aware at all of the background to the warning order? Rear Adm. Smith-No, I am not, not directly. Senator FAULKNER-Are you indirectly aware of it? Rear Adm. Smith-I could only speculate, but I would prefer to deal in facts. I am not aware of- Senator FAULKNER-So anything you were to say to the committee on this would be speculation? Rear Adm. Smith-Indeed it would. Senator FAULKNER-I do not particularly want you to speculate. I think we are all better off if we just deal with the facts; I am comfortable with that. In relation to the concept of operations, did any changes to that result also from the joint task force itself? And, if there were, would you describe them as policy or non-policy changes? Rear Adm. Smith-We made many adjustments to the way we were doing business, as a result of guidance passed through the chain of command, which I believe originated out of the interdepartmental committee process. That manifested itself, for example, early on in the piece with what to do with these people once we had intercepted them. Even in the early days, down to permission to board, we required higher level authority to do that. But certainly, once the operation began to unfold, decisions such as what to do with these people once we had them on board-where, for example, Tobruk or Manoora were to take them-it is my understanding that they were delivered to us through the chain of command, but they originated out of the IDC process. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 603 Senator FAULKNER-Could I ask you to accept my question on notice as also including those policy changes, amendments or alterations that might come through the joint task force. I do not know whether that was clear or not because I am not entirely sure of how this works, but if you could read my question on notice, including all policy amendments by whatever mecha- nism they land on your desk, I would appreciate it. Rear Adm. Smith-I will certainly try to get that for you, Senator. Senator FAULKNER-Thank you very much. I will raise the other questions about background with Admiral Barrie, which at least will save time tonight. With Operation Relex, were there any new rules for sea rescue? Rear Adm. Smith-There were no additional rules other than our standard rules for safety of life at sea. Senator FAULKNER-So sea rescue obligations did not change in Operation Relex, as far as personnel on Australian naval vessels were concerned? Rear Adm. Smith-At no time was any direction given that would have in any way inhibited a commanding officer exercising his responsibilities for safety of life at sea. Indeed, the requirement for that was re-emphasised in the documentation that was provided to the commanding officers. Senator FAULKNER-I have seen that and noted it, but my question went to whether there were any changes. Rear Adm. Smith-No, there were not. Senator FAULKNER-And I could be confident in that regard that there would not have been any changes in the lead-up to Operation Relex? Rear Adm. Smith-I have no knowledge at all of any changes such as you are suggesting. Senator FAULKNER-Thanks for that, Admiral. If any did occur prior to Operation Relex I would appreciate you letting me know, but it sounds quite unlikely from what you say. Rear Adm. Smith-They would be the facts, Senator. Senator FAULKNER-Could I ask you another question in relation to the Navy's operations in the broad in dealing with people smugglers. There are those naval personnel who are involved on the naval vessels of Operation Relex and before that Operation Cranberry, and there are a significant number of land based naval personnel who have an involvement-an interface-with these operations. I think that is right, isn't it, Admiral? Rear Adm. Smith-Yes, that is true. CERTAIN MARITIME INCIDENT CMI 604 SENATE-Select Thursday, 11 April 2002 Senator FAULKNER-Are there, or were there, any naval personnel involved in the people- smuggling issue on the ground in any other country? Specifically here I am wondering about Indonesia. Rear Adm. Smith-I think you must be referring to intelligence people or people who may be collecting information. Senator FAULKNER-Not necessarily. Rear Adm. Smith-I would be unable to comment on that. Senator FAULKNER-I am talking here about naval personnel, but I was not specifically thinking of intelligence people, nor am I wanting to clamber into that. As you know, Admiral, I have always been very sensitive about those sorts of matters, and the usual caveats apply. But, no, I was not specifically thinking of those involved in intelligence operations. Rear Adm. Smith-The only naval person overseas that my headquarters had contact with during Operation Relex was the naval attaché in Jakarta, Captain Johnson. Senator FAULKNER-I appreciate that, but I am not sure that it necessarily answers my question. I did not ask you about contact with your office; I asked you a broader question than that. But, equally, I do not want to trample into some areas that might be sensitive. I might think of a way of asking this question on notice that allows you to apply your mind to a considered response, because I do not want to trample into areas that might involve any sensitivities that would not be appropriately discussed in a public forum like this. Rear Adm. Smith-I may have misunderstood your question, Senator. Were you referring to my interaction with other Australian naval- Senator FAULKNER-No, I asked in the broad about naval personnel. Rear Adm. Smith-I see. During Operation Relex I had occasion to visit Surabaya in Indonesia, and I had a personal discussion and a mutual exchange of information with my opposite number, the Commander of the Eastern Fleet, who is based in Surabaya. Senator FAULKNER-I might develop a question on notice, Admiral, but I will say to you in this forum that I do not want to trample into sensitive areas. That has been my longstanding approach on operational matters, whether they be intelligence-gathering or other matters, if that is relevant. Rear Adm. Smith-Thank you for that. Senator FAULKNER-With a mind to that very important caveat, I will try to think of a way of approaching the question. Has Navy sought legal advice on matters relating to its activities in Operation Relex. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 605 Rear Adm. Smith-I can only comment from my own position within the chain of com- mand, Senator. I did not seek any independent legal advice as to what we were conducting in terms of Relex. I was advised through the chain of command that that advice had been sought and I was given directions to execute the operation within some legal advice that was provided to me. Senator FAULKNER-Who in the chain of command informed you that independent legal advice had been sought? Rear Adm. Smith-Admiral Ritchie advised me on the legal aspects of what we were asked to do. Senator FAULKNER-If the RAN had sought independent legal advice, you would not necessarily be aware of it. Is that what you are saying? Rear Adm. Smith-The Navy would not do that independently. We did this as an ADF operation and we have mechanisms to seek that sort of information at the strategic level. That would be the business of Air Vice Marshal Titheridge. That question would be best asked of him. Senator FAULKNER-Not if the Navy did seek independent legal advice. Air Vice Marshal Titheridge would not know that. Rear Adm. Smith-I am not aware of the Navy seeking independent legal advice. Senator FAULKNER-Could you take this on notice? There is no other way of dealing with this, Rear Admiral. Your are here as Maritime Commander and my question goes to whether Navy-I stress `Navy'-seeks any independent advice. I do not think that is an appropriate question for me to ask the Air Vice Marshal, or Admiral Barrie, to be honest. I think it is better directed to you, and I appreciate that you may not have first-hand knowledge of it. I think it is reasonable of me to ask you, as Maritime Commander, to take that on notice because you are here as the senior RAN officer, as opposed to me asking the head of Strategic Command. Rear Adm. Smith-I understand that, and I will take it on notice. Senator FAULKNER-Thank you. If the answer to the question on notice is yes, Navy did seek independent legal advice, I ask when it was sought, from whom it was sought and about what issues it was sought. Rear Adm. Smith-I understand the question. Senator FAULKNER-Thank you. Rear Admiral, I have not had an opportunity to chase up the matter of tasking since the Senate estimates committee, but knowing you would be joining us during these hearings I thought I could do it now. I do not know whether you are aware of this, but on Thursday, 21 February after the dinner adjournment CDF came back with some information in response to a question I had asked earlier in the day about any direct contact made by ministers or ministers' staff-the secretary to Prime Minister and Cabinet and the like-with certain ships. I do not know if you recall that. I do not expect you to have recalled it. CERTAIN MARITIME INCIDENT CMI 606 SENATE-Select Thursday, 11 April 2002 I can give you a page reference if it is any assistance here. Admiral Barrie gave some information about advice that was forwarded to Manoora. It is those matters that I would very briefly like to go to the detail of. I hope I have selected the right person to ask; I think I have, but you can tell me. Rear Adm. Smith-I will do my best, Senator. Senator FAULKNER-CDF informed the Senate estimates committee: Prime Minister Howard forwarded a letter addressed personally to myself- I interpolate here that `myself' is CDF. If it is any assistance to the people in another room supporting you, it is page 203 of the Senate Foreign Affairs, Defence and Trade Legislation Committee Hansard of the estimates hearing of 21 February. It says: Prime Minister Howard forwarded a letter addressed personally to myself as commanding officer, dated 11 October, with respect to our tasking from Christmas Island to Nauru in the weeks during September-October 01. A letter arrived on board during the third week of October. Prime Minister Howard's letter was also faxed to the ship on 12 October alongside in Sydney. Prime Minister Howard's fax was preceded by telephone calls from Commander Steffan King in PM&C and also a Mr Brendan Hammer, PM&C, on or about 11 October informing me that a fax would be forthcoming and requesting a fax contact to forward the same. The subject fax arrived on board on 12 October. Minister Reith also forwarded a letter addressed personally to myself as commanding officer, dated 5 October, with respect to our then tasking which arrived in the post on board Manoora also during the third week of October 01. I wondered if, for the benefit of the committee, you would be able to briefly outline the details of that tasking and the significance of it coming from the Prime Minister and the Minister for Defence. Rear Adm. Smith-I do not have a copy of those letters. It is my understanding that those letters were in fact letters of congratulations to the commanding officer and the ship's company for the way they conducted a very difficult operation. As far as I am aware, they did not contain any direction, in terms of tasking, to the commanding officer. Senator FAULKNER-I have heard that before and I think CDF indicated that that was the case. It is just that the use of the word `tasking' surprised me. My recollection is that it was CDF who said that letters of congratulations were provided. My question is just to clarify-because there is one more letter than I thought-whether that is the status of the letters. If that is the case there is no need to take it any further, given that you do not have copies of the letters. If you could just check for me if that is not the case-if any of those letters contain any details of tasking beyond appropriate congratulatory messages to the crew of HMAS Manoora or any other naval vessels involved. Rear Adm. Smith-I have personally seen those letters. Senator FAULKNER-That is all of the letters, is it? Rear Adm. Smith-Yes. I can confirm that they were letters of congratulations and that the wording here-when we refer to tasking, that is a naval way of talking about how you are being used-was not in the context of giving tasking. It was about congratulations in the context of what their tasking had required them to do. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 607 Senator FAULKNER-I thought that might be likely. The thing is there seemed to be one extra letter, and I was just interested in the use of that particular terminology. There is no need to chase that through because CDF, I think, did indicate the broad nature of those communications. So that is fine. In terms of legal advice, does Maritime Command have a coordinating role, in the broad, in legal advice? Can you explain to me how the chain of command works in relation to the seeking of legal advice. Rear Adm. Smith-I have my own fleet legal officer who provides me personal legal advice on operational matters. If there is clarity required on a particular issue, that is invariably conducted at the strategic level. At the strategic level, guidance is sought from such authorities as the Attorney-General's Department, as appropriate. I am not involved in that particular process. Senator FAULKNER-I appreciate you have taken on notice a question in relation to legal advice, and that is fine. I was wondering more broadly whether the Navy does at times seek legal advice from the International Maritime Organisation, which I know does have a legal services secretariat. At times is there a direct link there or is that handled, if it is handled at all, by other areas of government? Rear Adm. Smith-I can only comment on my own area, and I am not aware of any inquiry of that organisation from Maritime Command. Senator FAULKNER-I wish to ask you about something we spoke about briefly on Friday afternoon-which was the question of phone calls, in this case outside the chain of command- which is on page 592 of last Friday's Hansard. I had raised with you the question of the criticism that Brigadier Silverstone had made of you and Maritime Command, and I have also raised this particular general issue with a range of witnesses. There does appear to be a pattern of an extraordinary number and frequency of phone calls, and I wondered, in relation to Operation Relex-this is phone calls to and from those naval vessels that were involved in the operation-whether this is an unusually high number of phone calls when you compare it with other naval operations. Rear Adm. Smith-I think it would be fair to say that this would be an unusually high number of phone calls direct to tactical forces during the conduct of this operation. Senator FAULKNER-Could you explain to the committee why that is the case? Rear Adm. Smith-I think it is very much because of the sensitivity of this particular operation, the high media visibility that this operation was commanding within the community and the requirement for a rapid dissemination up the chain of command to the authorities making policy decisions of the factual information that was occurring. As it was occurring very rapidly and as the policy itself was being developed fairly rapidly, it necessitated that level of personal communication to the CO. Senator FAULKNER-If we compared it to, say, naval ships involved in the Gulf blockade, is there a very different pattern here? CERTAIN MARITIME INCIDENT CMI 608 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-There is a very different pattern here. I have no requirement to contact the ships in the Gulf directly by telephone, but if the need arose I would have no hesitation in doing so. Senator FAULKNER-But in relation to Operation Relex, is it fair to say that, at the end of the day, the reason for all those phone calls comes back to politics? Rear Adm. Smith-It comes back to seeking direction for the tactical forces as to how they go about the next stage of their operation. Senator FAULKNER-I am trying to understand why there is this extraordinary number and frequency of phone calls, an intensity of contact on the telephone in relation to Operation Relex. You accept it is unusual-you accept in fact it is very unusual-but what is so different about Relex? Rear Adm. Smith-Indeed I tried to explain that in my opening statement some days ago. I made the point that special reporting mechanisms were put in place for this operation. I was directed that the principal method of communication was to be commander to commander by telephone, and that was in recognition of the sensitivity and the nature of the operation in which we were involved. Senator FAULKNER-But would you accept now that those special relationships were a failure? Rear Adm. Smith-I do not see them as a failure at all. I believe that they worked and they permitted the relaying of very timely and important information to the appropriate authorities here in Canberra. They did not fail at all. CHAIR-Did this high level of telephone traffic in Relex vary at any stage during the operation? Was it constant throughout? Rear Adm. Smith-No, it was not constant. It was very much a function of what was actually happening at the tactical level. Invariably, it required communications when the SIEV incidents were unfolding or occurring and where we did not have the authority without higher guidance to react in a particular way. It was very much a function of the activity levels within the operation which are normally coincident with some activity with one of the SIEVs. CHAIR-Were there any greater demands on you for more information at or after the time of SIEV4? Rear Adm. Smith-I would say no. There was no obvious additional requirement. SIEV4 was just number four in a series of four and we had a few more that came afterwards. I did not see any particular request for more information after SIEV4. Senator FAULKNER-But you would be aware of what General Powell says about the special relationship. I am just trying to turn up the reference now. Inevitably, I will not find it. The special relationship with Air Vice Marshal Titheridge has been much criticised. Are you looking at this from the perspective of Maritime Command? In other words, are you defending CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 609 what Brigadier Silverstone was critical of in relation to you and Maritime Command? That also bypassed the chain of command, but the bypassing of the chain of command in another area not involving Maritime Command-as I think you would be aware-has caused a significant problem. I think most objective observers argue that the special relationship led to the dissemination of wrong information in the first place. Rear Adm. Smith-That particular incident you are referring to was a one-off occasion when Brigadier Silverstone was directed to speak directly to Air Vice Marshal Titheridge. That was not repeated again at any time during Operation Relex. You led into this line of questioning on the basis of my relationship and going outside the chain of command. I would make the point to you, Senator, that Brigadier Silverstone and the tactical forces were all under my command. I was not going outside the chain of command; I was going direct to a tactical unit commander to clarify a situation where there was some confusion. Senator FAULKNER-Do you think in the case of Maritime Command this greater pressure and intensity of phone calls is as the result of the insistence of the government to be informed quickly about these matters? Is that a fair criticism as it applies to Maritime Command which does not, of course, go to the Silverstone and Titheridge issue? Rear Adm. Smith-I would not see it as a criticism. That was one of the requirements in this operation and that is what we did. Senator FAULKNER-Yes, but how was the requirement to inform the government quickly communicated to you? Rear Adm. Smith-By formal signal. It was communicated directly from the CDF to the Theatre Commander, Rear Admiral Ritchie. He, in turn, gave me some quite explicit instructions on why it was essential that this communication was rapid and accurate. Senator FAULKNER-A telephone may well be rapid, but is it accurate? At the end of the day you yourself very properly-as have other senior officers in the Australian Defence Force-cautioned this committee about the importance of looking at the sit reps, if you like, looking at the written record as opposed to depending on what might be the differing views about, and versions of, telephonic communications. Rear Adm. Smith-I would make the point that the direction for verbal communication was in the first instance. There was never any direction that we were not to confirm by hard copy message the information that had already been relayed by the telephone. Indeed, it was this lack of confirmation that first led us to be suspicious about the original report of a child being thrown overboard. Senator FAULKNER-So is it fair to say of a telephone that it is rapid but not accurate? Rear Adm. Smith-We would never approach it from that point of view. We would always be providing that telephone advice to the very best of our knowledge. Senator FAULKNER-Given the number of telephone calls in Operation Relex, do you think that is going to become the norm? Do you think that is going to become standard CERTAIN MARITIME INCIDENT CMI 610 SENATE-Select Thursday, 11 April 2002 operating procedure in naval operations or do you think some lessons have been learnt to ensure that you have absolute care when dealing with this extraordinary amount of telephone interplay? Rear Adm. Smith-There is always an obligation on those in the chain of command to take care in the reports that they provide and that is why we go to a lot of trouble to confirm such information before broadcasting it. In this particular case, where we were required to communicate rapidly by telephone, with the benefit of hindsight that introduced obviously the possibility of inaccurate information being transmitted and acted upon before it could be confirmed. Senator FAULKNER-In the light of this experience, do you think that telephone communications should ever be relied on for information going outside Defence to government? Is it good enough to rely on telephonic communications? Rear Adm. Smith-It is good enough to rely in the first instance on that but it would be very prudent not to act until such time as that was confirmed with hard copy message. Senator FAULKNER-I am not sure whether the committee has that CDF order-we have got so many orders and pieces of paper. I do not know whether one of my colleagues or the committee secretariat can help us. Could you identify that document? It may be one of the ones we have or it may be one we do not have. Rear Adm. Smith-This is the warning order? Senator FAULKNER-No. This is the one in relation to the need to inform the government- Rear Adm. Smith-The special arrangement? Senator FAULKNER-It is not the special arrangement-that is the Titheridge special arrangement. What I am referring to is from Admiral Barrie's request, via Rear Admiral Ritchie, to Maritime Command for the government to be kept informed. Rear Adm. Smith-If you would bear with us I will dig that message out. I do not believe it has been provided to the committee. Senator FAULKNER-No. As you understand, Rear Admiral, you have provided so much information that we will need to check that. Thank you for indicating that to us and thank you for providing that information to us as well. There is just one final matter, Rear Admiral- again, I do not want you to go to any intelligence operational details and I make that caveat clear. Could I ask you: was the Navy or any other Defence unit that you are aware of informed of the impending or actual departure of the suspected illegal entry vessel Palapa? I do not think that is on the spreadsheet. Rear Adm. Smith-I am not familiar with that name, Senator. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 611 Senator FAULKNER-I may be using the wrong name. My understanding is that that is the name of the vessel that asylum seekers on board were picked up by MV Tampa. I may have the wrong name. I am just depending on my memory. It is the Palapa, isn't it? Rear Adm. Smith-I understand the question, but you are asking me whether we knew about the sailing of that one. Senator FAULKNER-Yes, that is right. I am asking-without trampling into any sensitive intelligence details, and I put that clear caveat-whether Defence was informed of, or aware of, the departure of the Palapa from Indonesia. Rear Adm. Smith-I am not aware of whether or not we were aware of its departure. I certainly was not personally aware. If my memory serves me correctly, the first we were aware of this particular vessel was when we received advice, through Coastwatch Canberra and the search and rescue organisation, that there was a vessel in distress. Senator FAULKNER-Could I ask you perhaps to take that on notice, Rear Admiral, appreciating and understanding that you do not have that information to hand. If that is the case, what date was that information passed on to Defence and what date did that vessel depart from Indonesia? Could I ask you also in relation to that particular vessel, and you may be able to assist me with this: was any Royal Australian Navy ship ordered or directed away from the area of Australian or international waters where the Palapa would be expected to be intercepted? Rear Adm. Smith-No. Senator FAULKNER-Thank you for that. CHAIR-Does that conclude your questioning, Senator Faulkner? Senator FAULKNER-I said that I would try to wrap up in an hour and I have, even though I could ask many more questions. One committee member has to be a man of their word. CHAIR-Let's hope all committee members are in that category. Senator JACINTA COLLINS-There is one other matter, Rear Admiral Smith, from the last occasion that I do not think you dealt with in your opening statement, and that was the letter you quoted from the CO of the Arunta. Have you had the opportunity to review whether that could be made available to us? Rear Adm. Smith-I am just trying to remember which letter that was. Senator JACINTA COLLINS-It was the one you were referring to with respect to how information was collated on the ship during these incidents. Rear Adm. Smith-I thought I provided that to the committee. Senator JACINTA COLLINS-Okay. It has not been passed on. CERTAIN MARITIME INCIDENT CMI 612 SENATE-Select Thursday, 11 April 2002 CHAIR-What is that? Senator JACINTA COLLINS-It was not provided to us at the time and, as far as I am aware, it has not been passed on to members of the committee today. Rear Adm. Smith-Is that the one that I read from about the way they compile the information? Senator JACINTA COLLINS-That is right. Rear Adm. Smith-I thought that was handed to the secretariat, but I would have to confirm. Senator JACINTA COLLINS-Okay. I checked with the- CHAIR-Is that the document handed up tonight? Rear Adm. Smith-No, this was last week, Senator. CHAIR-I am sorry, I missed the beginning of your question. I am trying to get the secretariat to identify what the document is. Senator JACINTA COLLINS-Yes. There was a letter that Rear Admiral Smith quoted from on the last occasion. I asked him if he could provide a copy to the committee. He sought to review it in terms of whether it was appropriate that all the information included in that letter should be made available to us. I sought from the secretariat, who then sought from the Defence group, clarification of whether that had been made available and we were told that, as at this point in time, the answer was no. Rear Adm. Smith-At the conclusion of those proceedings, that was handed to a gentleman who I believe was from Hansard. I handed that document over there, and I no longer have it. CHAIR-I see. Hansard often then return to the originator the document that they have, rather than hand it to the secretariat. We will check to see what has happened. Senator FAULKNER-Hansard are pretty honest. CHAIR-They are very reliable, I must say. Rear Adm. Smith-I can certainly get another copy. CHAIR-And not only because they are listening to our conversation. They are very good. Senator FAULKNER-To save time, I will place a question on notice that might require a small amount of effort to get a response to. I think it will certainly save some time tonight. Rear Adm. Smith-Certainly. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 613 Senator JACINTA COLLINS-Given the additional material that you provided to the committee, there is probably a number of areas that I will not go into any detail with until I have had the opportunity to review that further material, but I understand that you have taken on board our questions about differences in the reports in some of those instances and the desire to get to the original source of those reports. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-For example, another one of the examples that concerned me that you may now, with the additional material, have dealt with was incident 4 where there was no source cited, although that may well be in your later table that you collated. I think I will wait until I have had the opportunity to review all of that material before I pursue some of those issues further. Rear Adm. Smith-The statements that are now contained in the pack that I handed to the secretariat now support each and every one of those incidents. Senator JACINTA COLLINS-Yes. I appreciate what you said earlier this evening. I was concerned to ensure that that would be the case given that, for instance, incident 7-I am working on the Titheridge version at this stage, rather than yours, and the numbering changes- that was not the case with the statements we had at the time. Now you have been able to provide additional material, so I will review that. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-With respect to incident 5, there was one question I had on that incident which is that, quite different to the language throughout the rest of the report, it indicates as worthy to note that children were picked up away from-and I will have to go to this to get the exact wording which reads: Worthy to note that WOLLONGONG and ARNHEM BAY recovered several children without parents in attendance- Can you tell me where that language came from? Was that your own report, or was that adopted from the op rep that came from the ship? Rear Adm. Smith-That was a direct quote that came from the op rep that came from the ship, which is now supported by a statement. Senator JACINTA COLLINS-The overall context of that exercise was that that was essentially an abandoned ship? Rear Adm. Smith-That was the point that the CO was trying to make there, that this was a panic exodus from SIEV10 and that is why the children became separated from their parents. Senator JACINTA COLLINS-Yes, rather than implying some lack of concern by the parents that they allowed themselves to be separated from their children. CERTAIN MARITIME INCIDENT CMI 614 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-There was absolutely no intention to suggest that fact. This was just a reflection of the panic and the mass exodus of the ship sinking. Senator JACINTA COLLINS-Yes. In that context, whilst it actually directly related to children, it is not really an example you would have marked as an `X' on that tabulation form- Rear Adm. Smith-On the sheet. Senator JACINTA COLLINS-as a threat to a child? Rear Adm. Smith-No. Senator JACINTA COLLINS-In that case, if I were talking about incidents where children were threatened by asylum seekers, you could not really count that as one of the incidents, could you? Rear Adm. Smith-And we have not done so. Senator JACINTA COLLINS-No. Some have been known to say they have 12 incidents and clear examples in eight of those 12. On the material that was originally available to me- and this will now have to go through the process of the additional material-I could count only four where I thought the verification was provided to us prior to the additional material that came out on the last occasion and has come out now. So it will be interesting to see ultimately the full context of these exercises. Rear Adm. Smith-Certainly. I understand that, Senator. The Titheridge report, which was fed by my own report, talked purely about incidents of children threatened to be thrown over the side. Those reports are now, in each case, supported by multiple statements from personnel who were there at the time. Senator JACINTA COLLINS-Yes, and in their full context. Rear Adm. Smith-Correct. Senator JACINTA COLLINS-Thank you. The other questions I have are aimed pretty much at trying to tie up in my mind some of the other evidence we have had which is unrelated to these incidents. The first of that is the cable that came from the Adelaide on 10 October cor- recting the earlier reports. We have had evidence that it did not make its way up the chain of command to Canberra. Can you provide us with any information in relation to that? Rear Adm. Smith-Yes, I can. Your assertion is correct: it did not make its way up through the chain of command. It came as far as me, and I did not forward it on as a formal signal. It was a personal message from the CO of Adelaide to me at my direction. The information was drawn from that; it was a chronology of events. I drew from that the confirmation that this event had not occurred which had been suggested had occurred. I advised verbally that information. I did not forward that message on. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 615 Senator JACINTA COLLINS-This was as a result of your step outside of the chain of command in talking directly to Commander Banks to get to the bottom of the exercise? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-This signal was a response to that? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-When that information came to you in writing-I suppose you probably regret now that you did not provide that in writing further up the chain of command. Rear Adm. Smith-Senator Faulkner asked me at the close of the last session what I have learned from this. I think that was my lesson, that I would have forwarded that message on. At the time I did not think it was necessary. It was a tactical message. The information was relayed. With the benefit of hindsight, I wish I had have forwarded the message along. Senator JACINTA COLLINS-A question remains with me with respect to this special arrangement for Brigadier Silverstone to contact Air Vice Marshal Titheridge directly. You and Rear Admiral Ritchie are quite clear that it was either the minister or our minister that the briefing was sought for, whereas Brigadier Silverstone refers to the Treasurer in his notes. Can you explain that discrepancy? Rear Adm. Smith-No, I cannot. I did not keep notes of what I was asked to facilitate, which was that call in the morning. I have it in my mind, as does Admiral Ritchie I believe, that it was our minister. Brigadier Silverstone has `Treasurer' written in his notebook, and I cannot explain the difference. Senator JACINTA COLLINS-But you are fairly confident that it was our minister? Rear Adm. Smith-I was fairly confident that it was our minister, yes. Senator JACINTA COLLINS-The first question that came in my mind at the suggestion of the Treasurer was: why would Defence be putting a special arrangement in place to meet the media needs of the Treasurer? Rear Adm. Smith-That is why I think I would have, if not questioned it, at least wondered myself. I did not have that query in my mind, so that is why I was pretty certain it was our minister. CHAIR-I think it has been reported in the media, although I have not checked this, that the Treasurer appeared on the Sunday program that morning. Senator JACINTA COLLINS-Yes, he did. In one sense we are back to the issue of Brigadier Silverstone's notes because the information that we have received from both Admiral Ritchie and Admiral Smith is that this special arrangement was for their minister. I suppose we CERTAIN MARITIME INCIDENT CMI 616 SENATE-Select Thursday, 11 April 2002 can take it up further with Air Vice Marshal Titheridge and get to his understanding of it, but I think it seems fairly clear that if two links of the chain are saying our minister that is probably who it was. Rear Adm. Smith-Certainly, the request to me was to provide that information to Air Vice Marshal Titheridge, who was going to brief `the minister'. It may have been that we interpreted those words `the minister' as our minister, but certainly it was the Air Vice Marshal who was going to do that briefing so he would be best to ask, I suspect. Senator JACINTA COLLINS-Yes, thank you. Another area where some of the media reports may also have not been accurate is on your conversation with Brendan Nelson. Rear Adm. Smith-Yes. Senator JACINTA COLLINS-It is suggested in some of the press reports that you were speaking directly to Commander Banks. That was not the case, was it? Rear Adm. Smith-No. I was not. Senator JACINTA COLLINS-Could you revisit the issue of who it was you spoke to at the time when you spoke to Brendan Nelson, and exactly what you conveyed? Rear Adm. Smith-Certainly. It was on the Sunday evening, 8 October. I was hosting a reception on board Kanimbla for a youth program that we were running. At the time Dr Nelson was the Parliamentary Secretary to the Minister for Defence and he was the guest. I was speaking on the telephone to Brigadier Silverstone because the SIEV4 thing was still unfolding at that stage, on the Sunday evening, and Brigadier Silverstone was merely bringing me up to date with what had been occurring during the course of Sunday. Dr Nelson began a conversation with me and, in passing, asked me how the operation was going. I am sure he was doing that in his capacity as the parliamentary secretary. I advised him that it was a very difficult operation; that the operation had become a little more complicated with the current SIEV, as a report had been received that a child or children had been thrown over the side, and I relayed that information to him. The call I had got off was from Silverstone and he did not tell me that information then because he had already-I had got that earlier that morning. That was how the conversation- Senator JACINTA COLLINS-It was from Silverstone on that occasion as well? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-So he was giving you an update as to what had occurred during the day? Rear Adm. Smith-When these operations are running, we speak probably 10 times a day and that was just one of those calls that he made. In conversation with Dr Nelson I apprised him of that situation. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 617 Senator FAULKNER-But I suppose you would regret not contacting Dr Nelson back, Rear Admiral, and saying that that information was not accurate? Rear Adm. Smith-Again, with the benefit of some hindsight, Senator, I would say that is correct. To be honest with you, I gave that conversation not a second's thought after it occurred. Senator FAULKNER-I do not think Dr Nelson gave it a second's thought after it occurred either, so I would not feel too guilty if I were you. Senator JACINTA COLLINS-Yes. I move to another one of the questions sitting in the `loose end' area. Did Brigadier Silverstone convey to you the content of his discussion with Minister Reith regarding the content of the video? Rear Adm. Smith-No, he did not. I was apprised of that conversation by Admiral Ritchie. Senator JACINTA COLLINS-So he spoke to Admiral Ritchie solely? Rear Adm. Smith-Yes. I would have to check my diary, but I do not think I was around at that time. Brigadier Silverstone spoke directly to Admiral Ritchie and Admiral Ritchie subsequently advised me of that situation. Senator JACINTA COLLINS-How did Admiral Ritchie describe that to you? Rear Adm. Smith-He merely told me that Brigadier Silverstone had had a conversation with the minister where they had discussed the EOTS tape, and that the minister had not viewed the tape. Senator JACINTA COLLINS-So you were not apprised of the minister's statement that he had best not see it? Rear Adm. Smith-I was not aware of that statement, no. Senator JACINTA COLLINS-Also, in a statement by Mr Hendy from the minister's staff, he indicates that senior admirals in Defence were consulted about the release of the photos. Were you consulted? Rear Adm. Smith-No. Senator JACINTA COLLINS-I think I might just go to one of the incidents because, I think after our last session, the video that was provided to us was of enclosure 2, incident 1, which was the threat to a child. That example has made your table, hasn't it? Rear Adm. Smith-Yes, it has. Senator JACINTA COLLINS-In the video-correct me if you disagree with my interpretation-a man is holding up a child. I cannot speak their language and I would be interested to get an interpretation to know what was being said. He is actually surrounded by CERTAIN MARITIME INCIDENT CMI 618 SENATE-Select Thursday, 11 April 2002 people, he holds up a child, he gives the impression that he may be moving to put the child over the edge, and two or three men standing on the very edge raise their hands to prevent that from occurring. Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-Do you think that that is fairly accurate? Rear Adm. Smith-Yes. Senator JACINTA COLLINS-There was a discussion with Vice Admiral Shackleton about how seriously the Navy takes these threats. For that particular incident, how serious do you believe that threat was? Rear Adm. Smith-I could only form an opinion by watching the video, in the same way as you have, Senator. However, I think the important perspective is the perspective of the people who were on board at the time, who viewed any of those sorts of activities with great seriousness. I think if I had been on board that vessel and had seen that incident, I would have been very concerned that something quite bad was about to happen and would have taken action to prevent it. And that is what actually occurred. Senator JACINTA COLLINS-Yes, the asylum seekers themselves, in one sense, prevented it also, didn't they? Rear Adm. Smith-It was a combination of them doing it themselves as well as others. And them doing it themselves clearly indicated to me, from watching that video, that they also viewed that particular incident with great seriousness. Senator BRANDIS-Admiral Smith, I do not think it has ever been suggested that all of the people on board these vessels were attempting to throw children into the water. Plainly, most of the people on the vessels were very concerned about the behaviour of some of the other people on the vessels. Do you go along with that? Rear Adm. Smith-I would agree entirely, Senator. Senator JACINTA COLLINS-It is of great concern, some of the generalisations that have occurred in relation to boat people, and indeed in relation to the position that the Navy has been in in these incidents. Rear Adm. Smith-Yes, that is very true. Senator JACINTA COLLINS-One of the reasons that I am keen to give you an opportunity to explain more broadly the context of some of these incidents is in fact the headline that I referred you to on the last occasion, which was, `Boat people attempt to kill child: Libs'. I look forward to seeing, in relation to that strangulation incident, the full context of that story because, as we discussed last time, that detail was not available to us on that last occasion. It was one of the ones where witness statements were claimed to exist- CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 619 Rear Adm. Smith-Yes, it was. Senator JACINTA COLLINS-but in fact did not exist. Rear Adm. Smith-But now do. Senator JACINTA COLLINS-From the media's point of view, if they had seen that incident, they would have read the report and said, `Yes, there are witness statements,' and they would have thought, `Fine, it is reasonable to make that assertion.' But that was not the case. Rear Adm. Smith-That is one of the incidents now that is supported by a statement. I think it is fair to put on the record, Senator, that the statement is less than conclusive in terms of that threat or allegation of strangulation. It could in fact have been interpreted as a father being quite rough with his daughter, preventing his daughter becoming involved in what was beginning as a riot. So I think that that is less than conclusive, that particular allegation. Senator JACINTA COLLINS-So it may have been the father in fact trying to protect his daughter? Rear Adm. Smith-You could certainly view the soldier's statement that way, yes. Senator JACINTA COLLINS-Thank you for that. This is where I thought I should take you at this stage to a similar situation Vice Admiral Shackleton was in, in his evidence before us. He was asked about the abuse of children, and he responded-at page 76 of the Hansard-`I do not know that the abuse of children is all that definite.' Do you care to put a position to us about whether you believe that the abuse of children is a systematic pattern amongst asylum seekers? Rear Adm. Smith-The use of children as a means of intimidating the boarding parties-the sailors and the soldiers that were on board these SIEVs-is a feature in a number of these SIEVs, and therefore I would have to say that, in my view, that is one of the techniques being used by these people in an attempt to achieve their aim. Senator JACINTA COLLINS-But do you caution, as indeed did Vice Admiral Shackleton, considering that to be tantamount to child abuse? Rear Adm. Smith-I do not think I would like to pass an opinion on that. From the Navy's operational perspective, children were used by some people, and not all, as a means of applying moral pressure on our people. I have said previously in testimony that that was designed to appeal to our moral values. That was designed to strengthen their position and weaken our own and invite us to not persevere with the mission that we had been given. I think it is frankly a credit to the young men and women involved in this that they were able to persevere with their mission in the face of that. CHAIR-I heard you say that when you originally said it, but could I just be clear about the language here-`The threat of doing so was an attempt to deal with our moral values.' We are talking about the threat, not an actuality? CERTAIN MARITIME INCIDENT CMI 620 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-It is the threat of doing that. In our situation, if you take a sailor and he sees a mother and a child in distress, his natural inclination will be to help. That natural inclination, the culture of which we are a part, was being exploited. Senator JACINTA COLLINS-Do you believe that that is not part of their own culture? Rear Adm. Smith-In what respect? Senator JACINTA COLLINS-The care of children. Do you think that there is a difference between our culture and their culture? Rear Adm. Smith-I am not prepared to comment on the culture of the people involved here. I can only comment on our own culture and our own values. I saw our culture and our values, the things for which we stand, being exploited. Senator JACINTA COLLINS-But such threats occur within our own society, don't they? Rear Adm. Smith-That could be true. Senator JACINTA COLLINS-We hear about family law matters all the time where children are not only threatened but also actually harmed or killed within our own society. I should also take you to the questions that Vice Admiral Shackleton was asked in relation to moral blackmail, whilst we are at this stage. He was also cautious about referring to moral blackmail. I noticed in your discussion about the situation just then that you also did not resort to that language. Do you care to comment? Rear Adm. Smith-I think I am on the record as having agreed that it could be interpreted or expressed in that way. Without delving into the semantics of words here, at the end, I have no doubt at all that the behaviour of these people, some of the things that they did, was designed deliberately to place enormous pressure on professional young men and women who were being asked to do a very difficult job. That pressure was being applied with the purpose of undermin- ing their professionalism and determination to achieve the mission that they had been given. I have no doubt about that. Senator JACINTA COLLINS-In conclusion, going to that table that you drew up, my reading of that table, I think, clearly indicates that in terms of a child or children in the water there was one such incident. Rear Adm. Smith-That is correct. In terms of a child being dropped in the water or thrown in the water, there was only one incident. Senator JACINTA COLLINS-And it was actually dropped or lowered; it was not thrown. Is that correct? Rear Adm. Smith-`Dropped' is the word being used in the statements, yes. Senator JACINTA COLLINS-That concludes my questions, thank you, Chair. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 621 CHAIR-Thank you. Senator Brandis. Senator BRANDIS-Chair, as we did last time, Senator Mason and I would like to take it in turns to deal with the remaining incidents that we want to deal with. Senator Mason will deal with the first two, if that is agreeable. CHAIR-Yes. Senator MASON-Admiral, can we go back to SIEV7. That is where you and I left off in our last discussion. Can I return you to what you refer to as `SIEV7, incident 2' in your event summary. Do you have that? Rear Adm. Smith-Yes, I do, Senator. Senator MASON-I will also be referring to your minute to the Chief of Navy and your matrix. Those are the main three documents and I will work with a couple of others as well. Rear Adm. Smith-Certainly. Senator MASON-In the event summary document you refer to `SIEV 07, incident 2' as an incident where a woman dropped a child into the water. In your minute to the Chief of Navy, there is a signal from HMAS Bendigo that verifies that, but, because we are running short of time, can I move directly to the witness statements-the primary evidence-of that incident. I have statements from Able Seaman Travis Flenley and Able Seaman Matthew Levi. Do you have those? Rear Adm. Smith-Yes, I do. Senator MASON-I refer to the bottom of the first page of Able Seaman Flenley's statement dated 25 October 2001. Do you have that? Rear Adm. Smith-Yes, I do. Senator MASON-In relation to SIEV7 he says: ... I saw a small child being dangled over the starboard side of the SIEV by its arm. On page 2 it continues: Other women were gesticulating towards the child shouting, "Oh, no, look at the poor child, it's going to die" or words to that effect. Do you agree with that? Rear Adm. Smith-Yes, I do. Senator MASON-It continues: CERTAIN MARITIME INCIDENT CMI 622 SENATE-Select Thursday, 11 April 2002 They were obviously attempting to unsettle us. The child, about three years old, was also screaming. I then saw the woman drop the child. The woman and the other women around her remained hysterical, screaming at us. The next paragraph continues: Soon after the child hit the water, one of the male SUNCs that was already in the water close to the SIEV swam to it and held it above the water on his chest. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-And that is why, in your matrix document, you describe SIEV7 as an actual incident where a child was thrown or dropped overboard? Rear Adm. Smith-That is correct, Senator. Senator MASON-The other primary piece of evidence, Admiral, is from Able Seaman Matthew Levi. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-On the bottom of the first page of that statement, Able Seaman Levi says: As the two ACV RHIBs and BENDIGO's RHIB rounded up and recovered the first of the SUNCs, I saw a small child in a red jumpsuit being dangled over the starboard side of the SIEV by its arm. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-It continues: I then saw the child being dropped into the water as the hysterics and screams increased. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-The last ship that relates to SIEV7-I think this is right-is the Bunbury, which was incorrectly marked at one stage as SIEV6. Is that correct? Rear Adm. Smith-Yes, I think that is correct. Senator MASON-In your minute to the Chief of Navy-I think it is the last two pages of that minute-you refer to the Bunbury. You mentioned the other day that in fact it was SIEV7. That is correct, isn't it? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 623 Rear Adm. Smith-That is correct. Senator MASON-And there is a signal from HMAS Bunbury-is that correct? Rear Adm. Smith-That is correct. Senator MASON-It says there that: ... the Boarding Party observed a large male standing atop the vessel's coachhouse. He picked up a young girl (aged 4-5 years) by one leg and held her over the STBD side of the vessel and started yelling. The young girl appeared very distressed. All observers noted that she had a cast on her left arm. As this occurred BUNBURY's CBM started removing his webbing in order to enter the water after the girl. Is that correct? Rear Adm. Smith-That is correct, Senator, yes. Senator MASON-What primary evidence do we have of that? Rear Adm. Smith-We have the signal from Bunbury, which was as a response to my request for that information. We also now have statements to that effect. Senator MASON-I am not sure I have the statements on that. Rear Adm. Smith-These are the statements that are still to be circulated to the committee. Senator MASON-You did say that, sorry. Senator Collins will say something about primary evidence. Can we then go to the boarding log? Senator JACINTA COLLINS-This is one of the uncontentious ones? Senator MASON-All right. Just very quickly- Senator BRANDIS-Senator Collins, with respect, they are all contentious to the extent to which the proposition is put, as it was put unsuccessfully by you to this witness, that there is not a pattern of conduct. At risk of stating the obvious- Senator JACINTA COLLINS-I actually never said that, Senator Brandis. Senator BRANDIS-If it is uncontentious that there is a pattern of conduct- Senator JACINTA COLLINS-Senator Brandis, you are misrepresenting me and I ask you to withdraw it. CHAIR-Order! Senator BRANDIS-I am not misrepresenting. You challenged the witness. CERTAIN MARITIME INCIDENT CMI 624 SENATE-Select Thursday, 11 April 2002 Senator JACINTA COLLINS-You are misrepresenting me. You claimed that I claimed that there was no pattern. I have never done so. CHAIR-Order! Order! Senator BRANDIS-So do you accept that there was a pattern of conduct involving the abuse of children? CHAIR-Can we just have a bit of order, please? If Senator Brandis has something to say, I think he should say it. If you have any objection, if you are not taking a point of order- Senator JACINTA COLLINS-I object to being misrepresented. CHAIR-You can deal with that in the appropriate manner. Unless there is any other argument, let us go back to Senator Mason. Senator MASON-In your matrix, Admiral, you mention the Bunbury, Arunta and the Bendigo in relation to SIEV7 and you say there was a threat to throw a child overboard. Rear Adm. Smith-Yes, Senator. Senator MASON-If I can take you, Admiral, to the boarding log. Do you have that? Rear Adm. Smith-Yes, I have that. Senator MASON-I think it is page 2. Rear Adm. Smith-Yes, it is. Senator MASON-About five lines down it says, `One SUNC jumped over the side, one child held over the side.' Rear Adm. Smith-That is correct. Senator MASON-And that is your evidence for the proposition that a child was threatened to be thrown overboard? Rear Adm. Smith-That is now supported by these new statements. Senator MASON-Thank you, that is fine. I might briefly just do SIEV8 before Senator Brandis does SIEV9 and SIEV10. In the matrix you simply mentioned in relation to SIEV8 that it was really a matter of agitation. Is that right? Rear Adm. Smith-Yes, that is all it was. Senator MASON-You cite SIEV8 filed at serials 32 and 36, and in your event summary you simply say: CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 625 When briefed of the requirement to sail to AI- Ashmore Island- the PII- potential illegal immigrants- became uncooperative and removed shades to deliberately expose themselves to the sun. Discussion with the PII revealed they were under the impression that AI was an Indonesian island, and once briefed otherwise they agreed to sail to AI. Is that correct? Rear Adm. Smith-That is correct, Senator. Senator MASON-I think we can leave SIEV8 at that, thanks Admiral. Senator BRANDIS-Admiral, I want to take you to some of the evidence in the statements that you have produced for the first time this evening. I am not sure whether the order in which the statements have been handed to me is the order in which you have them. Could I ask you to locate a three-page document titled, `Statement by Lieutenant R.P. Henry'. Rear Adm. Smith-In what SIEV context, Senator? That will help me. Senator BRANDIS-It is SIEV9. Rear Adm. Smith-What was the name again, Senator? Senator BRANDIS-Lieutenant R.P. Henry. Rear Adm. Smith-Yes, I have that, Senator. Senator BRANDIS-Regarding the structure of this statement, although it is entitled, `Statement by Lt Roy Henry,' if you turn to the last page you will see that it is signed by six people: Lt Henry, Sergeant Oben, Corporal Troughton, Corporal Bergersen, Lance Corporal Nimmett and Lance Corporal Mahalm. Do we take it that this is presented to us in this form as a joint statement of each of those six people who, by signing it as they do, verified their knowledge of the events to the extent to which the statement refers to their participation in those events? Rear Adm. Smith-Those are indeed the circumstances. Senator BRANDIS-I will next ask you to take up the Titheridge memorandum, please. Rear Adm. Smith-Yes, I have it. Senator BRANDIS-Go to enclosure 2. CERTAIN MARITIME INCIDENT CMI 626 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Yes. Senator BRANDIS-There may be a bit of an inconsistency, as far as I can see, with some of the incident numbering. Incident 1 on the Titheridge memorandum refers to SIEV7, and not to SIEV9. Do you see that? Rear Adm. Smith-Yes. Senator BRANDIS-Incident 2 refers to SIEV9 and an episode that occurred at 0231 zulu on 31 October. Incident 2 on the Titheridge memorandum marries up with incident 1 on this joint statement by these six witnesses. Do you see that? Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-What is described on this statement as incident 1 is Arunta incident 2 on the Titheridge memorandum? Rear Adm. Smith-Correct. Senator BRANDIS-May I take you then to the middle paragraph of the discussion of the incident in the statement. You will see that it is reported by these witnesses that a small group of PIIs had ripped up the floorboards and were banging those floorboards against the floor of the boat in an attempt to sink the SIEV. Rear Adm. Smith-Yes. Senator BRANDIS-That piece of evidence is one of the bases upon which you prepared your note, which ultimately became the annexures to the Titheridge memorandum reporting on that event? Rear Adm. Smith-That is correct. Senator BRANDIS-May I take you then to the third paragraph of the statement, under incident 1: During this riot, a male PII threatened to throw his child off the back of the SIEV. He was moving quickly to the rear end of the SIEV and was screaming loudly, "I will throw, I will throw", or words to that effect. Myself- presumably Lieutenant Henry- and two other soldiers were able to tackle this PII to the ground and remove the child from his clutches and give it back to its mother. The child would have been no more than two years old. This male PII subsequently calmed down ... That piece of evidence, which is, of course, primary evidence from a witness, is one of the pieces of evidence on the basis of which you made the assessment of threats to throw a child from that SIEV on that occasion? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 627 Rear Adm. Smith-I did not have that particular statement at the time that this compilation was put together. They were reports from the ship, but this is what the ship have drawn their information from. Senator BRANDIS-Would you agree with me that that evidence clearly supports the conclusion you drew on the basis of the secondary sources when you say, `One male SUNC threatened to throw young infant overboard'? Rear Adm. Smith-Very much so, yes. Senator BRANDIS-Incident 2 in the joint statement, which you have produced this evening, refers to something happening at 1217 zulu on 31 October? Rear Adm. Smith-Yes. Senator BRANDIS-This is significant for two reasons: firstly, it is reported by you in your summary that that is another attempt to throw a child overboard, and it is also the strangulation incident. Whether it be a threat or an attempt or however it be described, the word `strangle' comes in about that incident? Rear Adm. Smith-That is correct. Senator BRANDIS-You told us when last we saw you that there was a mistake in your document because, although it says statements from members of the boarding party and boarding officers had been taken, you were not able to produce those statements. This statement, which is dated 9 April is, may I take it, an attempt to correct that error by producing statements of the original witnesses? Rear Adm. Smith-It is not an attempt to correct the error. It is an attempt to present to the committee the facts of each of these situations. At the time of producing my document, which became the Titheridge report, the ship reported that statements existed. That was in error. It was that report that was in error. They did not exist at that time. These have been produced subsequent to that. Senator BRANDIS-The joint statement reports in relation to this incident-I am reading from towards the top of page 2: The TSE were reacted and 5803399 PTE D. G. Moore was- To put it in context, there is a reference to a predominant single male PII. Do you see that in the second line? Rear Adm. Smith-Yes, I do. Senator BRANDIS-The TSE is the army unit, isn't it? Rear Adm. Smith-That is correct. CERTAIN MARITIME INCIDENT CMI 628 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-I quote: The TSE were reacted and 5803399 PTE D. G. Moore was able to stop a male PII from throwing his child overboard. The male PII actually had the child over the side of the SIEV and PTE Moore was able to secure the child and the rest of the TSE were able to move in and restrain the adult male on the fox'sail. Then it goes on: This incident was witnessed by myself- Senator MASON-That should surely be the `fo'c'sle'. Rear Adm. Smith-Correct, Senator. It is written by Army people, Senator-one of whom is in the room! He is a lawyer. Senator BRANDIS-It continues: 330301 SGT Oben and 5800316 CPL Bergersen. So three of the six signatories to this statement do, by this statement, verify that fact? Rear Adm. Smith-That is correct. Senator BRANDIS-It continues: If it was not for the action of Private Moore, it is of the above witnesses assessment- presumably an intended reference to himself, Bergersen and Oben- that the child would have been dropped overboard. Again, this is information that verifies the conclusion that you drew when you drafted the document that became the Titheridge memorandum? Rear Adm. Smith-That is correct. Senator BRANDIS-This is the incident in which the word `strangle' first appears. May I ask you take up please the statement of Carol Anne McQueen? Rear Adm. Smith-This is the same SIEV incident? Senator BRANDIS-That is one of the things I want to establish. I do not want to lead you as it were. At the top it says `In the matter of SIEV9 incident 3', and then a time is given, presumably 2017 local time on 31 October. You will have to help me again. There is a difference between zulu time and local time? Rear Adm. Smith-That is correct. Senator BRANDIS-That is a difference of how many hours? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 629 Rear Adm. Smith-In that location I think it is nine. Senator BRANDIS-The incidents summarised in the enclosures to the Titheridge memorandum are all given in zulu time, not local time. You will see that this incident is reported at 2017 local time. It would appear to marry up with what in the Titheridge memorandum is described as incident 3, which is recorded as having happened at 1217 zulu time. In other words, it is the only incident which occurred at 17 minutes past the hour. Rear Adm. Smith-I believe it is referring to incident 3. Senator BRANDIS-It seems to be an intended reference to the same incident, if you read the text. But the description of SIEV9 incident 3 at the top is in fact a description of Titheridge incident 3, which is SIEV9 incident 2 because Titheridge incident 1 is a SIEV7 incident. Do you see what I mean? Rear Adm. Smith-Yes. Senator BRANDIS-All right. Lest there be any suggestion that we are not talking about the same incident, what this refers to and what Titheridge incident 3 refers to are the same event, at 17 minutes past the hour on 31 October 2001. Rear Adm. Smith-Yes, that is the case. In fact this young woman is on board Arunta- Senator BRANDIS-Yes. Rear Adm. Smith-and they have used the numbering of Arunta. Senator BRANDIS-All right. What is the rank of this officer? Rear Adm. Smith-She is an able seaman. Senator BRANDIS-Thank you. Able Seaman McQueen records in paragraph 4: I was the communications operator on the bridge of HMAS ARUNTA during the attempted strangulation and throwing overboard of children on SIEV09. Then at the end of paragraph 4 she says: In relation to the incident above- presumably an intended reference to the attempted strangulation and throwing overboard- I did not see any of the events occur. So she does not say she was an eyewitness and what she goes on to say is what lawyers would call hearsay or secondary evidence. But she explains in her statement the provenance or the origin of this claim. In paragraph 5 she says: CERTAIN MARITIME INCIDENT CMI 630 SENATE-Select Thursday, 11 April 2002 For the above incident, I wrote that the PIIs were chanting `UN', and then the PIIs had attempted to strangle a child and throw another overboard. May we take it from the way in which that is put together that it appears it was this officer, Able Seaman McQueen, who wrote the report? Rear Adm. Smith-It is this able seaman who wrote in the ship's narrative that information. Senator BRANDIS-The report that conveys that information? Rear Adm. Smith-That is correct. Senator BRANDIS-All right. It is interesting that she goes on to say: Due to the circumstances at the time with a very busy communications flow I am unable to recall who passed this information to me. I believe it may have been the Army Major on the bridge of ARUNTA. Would you agree with me, Admiral Smith, that plainly Able Seaman McQueen is declaring or stating that this information was conveyed to her and that she attempted to record what was conveyed to her? Rear Adm. Smith-That is what she is saying, yes. Senator BRANDIS-She goes on to say: As information was passed between the SIEV and ARUNTA, the word `attempted' was crossed out and initialled (as per procedure), being replaced with the word `threatened'. What is the procedure she refers to there? Can you tell us? Rear Adm. Smith-In the ship's narrative, in the log, if there is an error or something needs to be adjusted, it can be ruled through in pencil, but it must be initialled. You cannot use an eraser in the ship's log. Senator BRANDIS-I understand. Would you agree therefore that the most mature and accurate record of the event is likely to be the ultimate corrected record after these errors, as per procedure, have been corrected? Rear Adm. Smith-From that perspective, yes, that is correct. Senator BRANDIS-Look at paragraph 7. She says: Clarification of the information and events that occurred on the SIEV, showed that what was perceived as a threat was actually an attempt to strangle a child and throw another overboard. Therefore the word `threatened' was crossed out and `attempted' reinserted. It was later recorded that both children were ok, and the PIIs responsible were restrained. Just pausing there, as I read that statement what has happened is that there has been an original report that there was an attempt made to strangle a child. That report was changed from `attempted' to `threatened' and then, by some process of clarification of the information and events, it was revealed that what was perceived as a threat was actually an attempt to strangle a CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 631 child and throw another child overboard, and therefore the correction was itself corrected so that the first version of events, having been found to be the accurate version of events, was reinserted. That is what has happened, isn't it? Rear Adm. Smith-That is what she has stated as happening, yes. Senator BRANDIS-You mentioned the ship's log. Where do we find the original document, that is, the one in which the word `attempted' has been crossed out and replaced with the word `threatened' and then the word `threatened', on clarification of the information, has itself been crossed out and the word `attempted' reinserted? Rear Adm. Smith-The original log is retained on board the ship. It is an official document. Senator BRANDIS-Do you have a photocopy of it? Rear Adm. Smith-There are some extracts, I believe. I think the extracts from the log were passed earlier on. Senator JACINTA COLLINS-We have copies of it. Yes, we do. Senator BRANDIS-I am sorry, I have not seen that document. Just bear with me for a second. CHAIR-While we are bearing with you, Senator Brandis, can I take up a point. In the statement signed by the six personnel-this is the statement attributed to Lieutenant R.P. Henry, who was the Army platoon commander who boarded the actual SIEV-referring to this very incident that you are being questioned on, on page 2, the second last paragraph, doesn't that read: Also during this riot ... Mahalm witnessed what may have been portrayed as an attempted strangulation. During what appeared to be a family domestic incident an adult PI grabbed his young daughter (roughly 9 years old) near the throat region and pushed her to the ground and made her sit down. This incident occurred because the young female was trying to join into the riot and the father did not want any of his family members involved. That is what it says in that report. These were the people actually on the SIEV responsible for taking charge and restoring order on the SIEV. Rear Adm. Smith-That is correct. In fact, this was the incident I was referring to earlier on when I said the witness statement would indicate that it was something less than may have been reported. So the use of the word `strangulation' has to be seen in the context of that eyewitness account, doesn't it? Rear Adm. Smith-That is correct. Senator JACINTA COLLINS-Do you think it should be removed from this? Rear Adm. Smith-I hope to get rid of this one day, Senator. CERTAIN MARITIME INCIDENT CMI 632 SENATE-Select Thursday, 11 April 2002 Senator JACINTA COLLINS-Yes, I know. But, on the basis of the additional information you have acquired, do you believe that incident should be taken off as a threat? Senator BRANDIS-Before you ask him that question, Senator Collins, I think it is fair that I put my questions to him, since I have the call at the moment, in relation to the recording of the incident. Senator JACINTA COLLINS-I am sorry, I thought we were giving you time to read something you had not got on top of yet. Senator BRANDIS-I have read it and I have discovered what I am looking for. Would you turn to the ship's log. That is a six-page photocopied document. Rear Adm. Smith-Yes, I have got that one. Senator BRANDIS-Would you go to the fifth page of it, please. Rear Adm. Smith-Maybe I do not have the same document. I do not have six pages. Senator BRANDIS-Perhaps I have miscounted. Yes, there are six pages on the document I have been given. Perhaps we can do it by reference to time. In the left-hand column, 2017. Rear Adm. Smith-Maybe you could take me through it, Senator. Senator JACINTA COLLINS-What might solve this problem is that the document we have is a few different logs. So it is page 6 of a few different logs. Senator BRANDIS-May I approach you for a moment please, Rear Admiral. Rear Adm. Smith-Certainly. Senator FAULKNER-That is risky, Rear Admiral. I would not let him anywhere near you! Rear Adm. Smith-Senator Collins is correct. I have got this split up incident by incident rather than as one document. Yes, I have the appropriate page. Senator BRANDIS-Rear Admiral Smith, I think you have got it highlighted there. At the entry at 2017, after the entry `PIIs chanting "UN'", as far as I can make out from my photocopy there appear the words `PIIs attempted' and that is crossed out then `threat', or `threatened' because it goes on to the next line- Rear Adm. Smith-It goes on to the next line, yes; that is correct. Senator BRANDIS-Then that is crossed out and both of those crossings out appear to be initialled immediately above the word. Rear Adm. Smith-Yes. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 633 Senator JACINTA COLLINS-That is an initial, is it? Rear Adm. Smith-Yes. Senator BRANDIS-Then the ultimate or perfected version of the document is `attempted to strangle the child and throw overboard' and the words `another child' seem to be interlined in the middle of the word `overboard'. Rear Adm. Smith-That is correct. Senator BRANDIS-So that the ultimate version of this, as it was in the words of Able Seaman McQueen after clarification of the incidents and events, reads: PIIs attempted to strangle a child and throw another child overboard. Would you agree with me that that is the way the report ultimately reads? Rear Adm. Smith-Yes, I agree. Senator BRANDIS-And we know from Able Seaman McQueen's statement that that entry and those corrections were made at the time or immediately after the time that these events happened? Rear Adm. Smith-That is correct. Senator BRANDIS-And we know from her statement that the ultimate correction, so that the recording in the ship's log of the episode had been corrected or recorrected to read that it was an attempt to strangle a child, took place after a process of clarification of the information and events that had occurred on the SIEV had taken place, as she says in paragraph 7 of her statement? Rear Adm. Smith-That is what she has stated, yes. Senator BRANDIS-All right. While we are on the joint statement, may I take you to what is described as incident 3? CHAIR-Before we leave incident 2, and I think I know where you are trying to get to, Senator Brandis- Senator BRANDIS-I am just trying to work out what the nearest contemporary record of this event was. CHAIR-Yes. But, on incident 2, the people who were actually on the SIEV, the six of them that have signed, signed off on `9 April 02', which is this week. And, incidentally, it is the 200th anniversary of the interception by Her Majesty's barque Investigator of the Geographe at Encounter Bay in South Australia. I am sorry, it is a day after-but we will leave that aside; that is my historical interest. CERTAIN MARITIME INCIDENT CMI 634 SENATE-Select Thursday, 11 April 2002 Senator FERGUSON-That was Baudin. CHAIR-Yes, Nicholas Baudin. Senator BRANDIS-Senator Cook, your historical knowledge is almost as impressive as Senator Faulkner's. CHAIR-I have a particular interest in maritime exploration of Australia, but we will leave that aside. Senator FAULKNER-I have less, having been on this committee! CHAIR-These guys signed this on the 9th-that is this week. And that is their recollection this week of what actually occurred on board the SIEV? Rear Adm. Smith-That is correct. CHAIR-These are the eyewitnesses? Rear Adm. Smith-Correct. Senator BARTLETT-As opposed to the hearsay ones. Senator JACINTA COLLINS-So we are moving off this one, are we? Senator BRANDIS-There is something arising out of that. Able Seaman McQueen believes the person who passed the information on to her was an Army major, not any of the signatories to this statement of which we are now speaking? Rear Adm. Smith-That is correct. Senator BRANDIS-The second last paragraph of the discussion of incident 2 on the second page refers only to something witnessed by Lance Corporal L.G. Mahalm? Rear Adm. Smith-That is correct. Senator BRANDIS-And, as I established with you at the start of this, we understand the structure of this document to be that, although it is signed by six people, plainly not all six of those people say they witnessed each event and they appear to have signed off on it to the extent to which they can speak to the events which they witnessed. Is that right? Rear Adm. Smith-That is my understanding of this. Senator BRANDIS-We see from the paragraph to which I have just directed your attention that there is an interpretation of an event by Lance Corporal L.G. Mahalm and, according to Able Seaman McQueen, there is a report to her, whether or not of the same incident, from another person, who was an Army major, not one of the signatories to the three-page statement, CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 635 and whose description of the incident is not so qualified are Lance Corporal Mahalm's interpretation of the event that he saw? Rear Adm. Smith-That is my interpretation for it. CHAIR-The major appeared to be on the bridge of the Arunta and not on the SIEV like Mahalm. Rear Adm. Smith-That is right. The six signatories were on board the SIEV. Able Seaman McQueen was on the bridge of Arunta and this major was also on Arunta. Senator BRANDIS-It would be a bit hard to confuse a family domestic restraint with an attempt to strangle a child, wouldn't it? I suppose we would have to ask the people who witnessed the events. It may well be that what Mahalm and the Army major are describing are in fact different episodes. Rear Adm. Smith-I think that would be highly unlikely, Senator. I believe they are talking about the same thing. Clearly, on board the SIEV at the time of all of this there was a great deal of tension and aggravation and stress for everybody involved in it. Lance Corporal Mahalm has written about it as he viewed it. The major on board Arunta would have been relying upon voice communication from the SIEV to interpret what was going on. Senator FAULKNER-You mean by radio? Rear Adm. Smith-Yes. Senator BRANDIS-What rather strikes me, Admiral Smith, and I do not want to dwell too much on this, is that there has actually been nearly contemporaneously with the event or at least immediately on the heels of the event a process of clarification, of which Able Seaman McQueen speaks-and we would expect this to consist of her speaking to the eyewitnesses-as a result of which a conscious decision has been made by her to correct the record for the second time to reinstate the report that there was an attempt to strangle. Presumably she would not have done that lightly. Rear Adm. Smith-She would not have done that lightly, Senator, and you made the point quite correctly: she was the communications operator and she was speaking to the SIEV-we are not sure who was on the other end of that radio on board the SIEV, but she was speaking directly to them-and so that correction, one must assume, flowed out of information received over the radio. Senator BRANDIS-And it is indeed the only contemporaneous account of the event. Rear Adm. Smith-That is correct. Senator BRANDIS-Going to incident 3 in the joint statement; that is, the incident that happened on 1 November at 0851Z- CERTAIN MARITIME INCIDENT CMI 636 SENATE-Select Thursday, 11 April 2002 Senator FAULKNER-Are we still on SIEV9? Senator JACINTA COLLINS-No- Senator FAULKNER-Have we moved from SIEV9? Senator BRANDIS-I am going to the next incident now. Senator FAULKNER-Well- Senator BRANDIS-Please, Senator Faulkner: because these statements have come late, I am trying to deal with them as best I can. I am just going to take him through the statements, and try to do it sequentially as well. Senator FAULKNER-Do we know the country of origin of the asylum seekers on SIEV9? Rear Adm. Smith-I am not sure, Senator. Senator BRANDIS-If it helps: this joint statement is the only statement that deals with the multiplicity of incidents. Senator FAULKNER-I was just asking because it is not clear to me what nationality the SIEV9 asylum seekers were. Senator JACINTA COLLINS-No. Rear Adm. Smith-I can find out for you, Senator. Senator FAULKNER-If they were Afghanis, you would think they would just leave their children behind to the clutches of the Taliban! Senator BRANDIS-Admiral Smith, go to incident 3. Would you agree with me that that marries up by reference to the time with incident 4 in the Titheridge memorandum and other SIEV9 incidents? Rear Adm. Smith-Yes, I do. Senator BRANDIS-There were some statements already produced in relation to incident 4, if my memory serves me. Rear Adm. Smith-Yes, that is correct. Senator BRANDIS-In any event, we now also have this joint statement in relation to incident 4 and Titheridge, which is incident 3 in the joint statement. It verifies that a female PII was observed-in this case by Corporal R.H. Troughton and Lance Corporal J.R. Nimmett-as threatening to throw her child over the back of the SIEV. The statement continues: CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 637 This was not the first time nor was it the last time that she had threatened to throw her child overboard due to the delay in processing. I am sure you would agree that that provides further corroboration with the observational conclusion you offer in your document. Rear Adm. Smith-Yes, it does. Senator BRANDIS-There is another incident described in the joint statement which is not referred to in your document. That is not a criticism. I do not think you were asked about incidents other than threats to children or conduct in relation to children. At the middle of the next paragraph down of the joint statement I think Lieutenant Henry says: I personally observed CPL Jarvis get punched in the face by a PII. Rear Adm. Smith-I note that comment. That had not been reported previously. Senator BRANDIS-There has been a lot of discussion about a pattern of conduct or a modus operandi. I take you to the last part of the joint statement which all six of these officers or crewmen appear to share where they report: During the time that the TSE was embarked, there were a few incidents of threats against children. During the riots selfharm and threats to children became common place and were not seen to be out of the ordinary, almost a `modus operandi'. Do you see that? Rear Adm. Smith-Yes. Senator BRANDIS-Is that consistent with your own analysis of the material that you have reviewed in preparing your own document? Rear Adm. Smith-Yes, it is consistent and I have previously stated that. Senator BRANDIS-And you adopt the expression that it was a modus operandi or almost a modus operandi? Rear Adm. Smith-I have used that expression myself. That is correct. Senator BRANDIS-Thank you. I will just take you quickly through relevant parts of the statements to which I wish to draw attention. Could you take up from the bundle the statement of Guille Newham? CHAIR-Are we still on 9? Senator BRANDIS-These are all SIEV9 incidents. Rear Adm. Smith-Yes, I have that, Senator. CERTAIN MARITIME INCIDENT CMI 638 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-Do you see incident 2 at the top? Rear Adm. Smith-Yes, I do. Senator BRANDIS-I just want to direct your attention to towards the end of paragraph 5 of Able Seaman Newham's statement where he reports: I saw a solidly built male PII of about 40 years of age threaten to throw a child overboard on the port side. The TSE de- escalated the situation and the male calmed down and sat down. Rear Adm. Smith-Yes, that is what it states. Senator BRANDIS-Is that part of a pattern of conduct? Rear Adm. Smith-Yes. Senator BRANDIS-In relation to incident 2, what is LSCD in the statement? Rear Adm. Smith-Leading Seaman Clearance Diver. Senator BRANDIS-Leading Seaman William Ashley Taylor. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-I might be missing some things, but you will appreciate that I have not had these for long. The third sentence in paragraph 7 states: Upon arrival- that is on the deck- I noticed that the PII's had used a knife to cut through the anchor line that I had previously secured the top deck windows with. The TSE were in the process of controlling the riot that had occurred and had restrained one PII. I was informed that another PII was restrained for attempting to throw an infant overboard. TSE and boarding party controlled the situation ... I will allow that it may be a different report of the same episode to attempt to throw a child overboard-part of the pattern of conduct. Rear Adm. Smith-That is correct. Senator BRANDIS-Next, there is the statement of LSCIS. Can you help me on that? Rear Adm. Smith-Leading Seaman. Senator BRANDIS-Leading Seaman Kent Scully Pedersen. This is, again, in relation to incident 2. Rear Adm. Smith-Yes, I have that. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 639 Senator BRANDIS-Halfway down paragraph 5 it says: I noticed a large Middle-Eastern looking male leaning over the port guard rail with his arms fully extended holding an infant over the side of the vessel. If a large man was leaning over the side of the guard rail with his arms fully extended, that is not really a very ambiguous set of circumstances, is it? It is not as if he is holding the child in the air near the guard rail. Rear Adm. Smith-No, it is not. It is very clear. Senator BRANDIS-It says: It appeared to me that he was threatening to throw the infant overboard. I was later informed by members of TSE that he had tried to throw the infant overboard but was unsuccessful as TSE prevented him from doing so, and the infant was brought safely back inboard. See that? Part of the pattern of conduct? Rear Adm. Smith-That is what the statement says and that is consistent with the pattern of behaviour. CHAIR-You appreciate, Senator Brandis, that if this were a court that would be hearsay evidence, wouldn't it? Senator BRANDIS-A lot of this evidence is hearsay and, Senator Cook, often hearsay evidence is admissible-certainly if it is the best evidence available. As you have been at pains to remind me, Senator Cook, it is not a court. CHAIR-That is right. I wish we could move quicker-we are appearing to be a court. Senator BRANDIS-Can we now move on to incident 3. There is another statement by Leading Seaman Kent Scully Pedersen. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-This is later in the day. Rear Adm. Smith-It is 8 o'clock in the evening. Senator BRANDIS-Thank you. Halfway down paragraph 5 it says: I noticed a large Middle-Eastern looking male who appeared to be the same male from the situation earlier in the day at 1030am, scuffling with members of TSE. I assisted them in restraining him, then relocated the PII on the focsle of the vessel. I was informed by members of TSE that he had tried to throw an infant overboard and to "keep a eye" on him. Part of the pattern of conduct, Rear Admiral? Rear Adm. Smith-That is the statement and it is consistent with the behaviour. CERTAIN MARITIME INCIDENT CMI 640 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-Again, concerning incident 3 there is the statement of Andrew Michael Bertoncin. Rear Adm. Smith-Yes, I have it. Senator BRANDIS-This is an incident that occurred on 2 November 2001. Just moving quickly through it, the second line of paragraph 6 says: All hell broke out on board with Male PII's jumping over the side. During this incident I remember a female PII grabbed a child of approximately 2 to 3 years of age (she later claimed this child to be her own) and attempt to throw the child over the side. Her path was blocked by a member of the TSE and some of the other female PII's. She was separated from the child and moved away from the other PII's. She was returned to her child when the situation was calmed. He goes on to say, in paragraph 7: During the incident I remember five PII's requiring to be restrained from the group but only remember seeing the incident in relation to a real threat to a child overboard. Again, Rear Admiral, is that consistent with the pattern of conduct about which we have spoken? Rear Adm. Smith-Yes, it is. Senator BRANDIS-I ask you to take up the statement of leading seaman William Ashley Taylor with reference to SIEV9 incident 3. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-Paragraph 6, starting at the end of the second line, says: At that stage I noticed one male PII holding the legs of a small PII infant who was also in contact with a female PII, who I assumed to be the infant's mother. She had hold of the infant by the arms. It was obvious that she was attempting to stop him from throwing her infant child over board. Part of the pattern of conduct, Rear Admiral Smith? Rear Adm. Smith-That is what the statement says, Senator, and that is consistent with other behaviour. Senator BRANDIS-Take up the statement of Able Seaman Guille Bawden Newham in relation to incident 3. Paragraph 5, about four lines down says: I observed a solidly built male, the same male who had previously threatened to throw a child overboard, holding a small child roughly with one arm whilst the mother struggled with him. The mother was holding onto the lower legs of the child, whilst the male had his right arm wrapped around the child's upper torso. His arm was underneath the child's armpits, however, the child was slipping. He goes on to express fear for the safety of the child, although in this case he does not observe an attempt to throw it overboard. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 641 Rear Adm. Smith-That is correct, Senator. It is clearly the same incident as in the previous statement. Senator BRANDIS-Finally, I ask you to take up the statement of Brent Anthony Dell, in relation to incident 5. He does not really have much to tell us. Rear Adm. Smith-Yes, I have it. Senator BRANDIS-The statement reads: ... `Threatening to throw his children overboard if he can't cook his meal', I did not see the event occur but it was reported to me by POCIS Bertoncin and I transcribed it into the Narrative. Rear Adm. Smith-That is correct. Senator BRANDIS-May I now take you to the statement-which I think we have seen before, but it is also within your bundle-of Lieutenant Andrew Graham John Hawke? Rear Adm. Smith-Yes. Senator BRANDIS-This is all SIEV9. On page 3 he records an incident on Thursday, 1 November 2001. In the third paragraph from the bottom of the third page he says: About 1700 members of the HMAS BUNBURY (FCPB)- What does that mean? Rear Adm. Smith-A Fremantle class patrol boat. Senator BRANDIS-It goes on: ... had been embarked and rigged for a tow. As the FCPB made her approach a riot broke out. As soon as the riot broke out, I ordered the tow to be abandoned and the FCPB to clear away. During the riot I observed at least three males throw themselves in the water. One woman ran to the vessels' side with her child, I instructed BP- presumably, boarding party- ... personnel to stop her from throwing the child over the side and remove her from the area. Do you see that? Rear Adm. Smith-Yes, I do. Senator BRANDIS-At the very foot of the page it says: The women who had threatened to throw her child were united with the child, on the FX, under strict security. CERTAIN MARITIME INCIDENT CMI 642 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-That is correct. Senator BRANDIS-He goes on to say: The English speaking Doctor (PII) warned me any more work on the engine- because the Navy was trying to restart the engine at this stage- would result in `trouble'. Do you see that? Rear Adm. Smith-Yes, I do. Senator BRANDIS-The next incident that is reported is on Friday, 2 November 2001. In the third paragraph under that subheading it says: About 0558 the man identified as the PII Doctor approached me and started asking questions. I moved into the main hold and had around ten PII start to relay questions through the interpreter. The question revolved around where we were going; I responded I would inform them when the Government of Australia told me. They threatened `trouble' if we tried to start the engine-including jumping over the sides, throwing children over the side and `wrecking things'. I replied violence to others was unacceptable and any person trying to harm a child would be restrained and we would prevent them from damaging the vessel. I reiterated we would not respond to threats, my men had a job to do and so did I and, that their rioting would not prevent us from doing our job. This threat here is part of an orchestrated threat to cause trouble. I suggest, once again, it is part of the pattern of conduct of which we have been speaking. Rear Adm. Smith-Yes, I agree with that. Senator BRANDIS-I think that is all I had on SIEV9. May I go to SIEV10. Forgive me, I do not know if you have produced any new statements in relation to SIEV10 this evening. If you have, I have not had the opportunity to review them. Rear Adm. Smith-No, there are no new statements, Senator. Senator BRANDIS-May I hand you a bundle of statements which has previously been produced in relation to the SIEV10 incident, which was an episode involving an interception of SIEV10 by HMAS Wollongong. In the bundle there are many statements, but many of them are merely corroborative of one another. In view of the time, I will just take you to the principal ones. The first in the bundle is a statement by Lieutenant Commander W.M. Heron. It refers to the boarding of SIEV10 on 8 November 2001. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-This is the occasion referred to in enclosure 5 of the Titheridge memorandum, which reports on or is based on your summary in your synopsis document. Is that right, Rear Admiral? Rear Adm. Smith-Yes, that is correct, Senator. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 643 Senator BRANDIS-This is one of the occasions on which a vessel sank. Rear Adm. Smith-That is correct. Senator BRANDIS-And 33 children under the age of 12 were recovered from the water. Do you see that? Rear Adm. Smith-That is correct, Senator. Senator BRANDIS-There was not, in this case, observed to be any actual or attempted throwing of children into the sea, however. Rear Adm. Smith-That is correct. There was no time. Senator BRANDIS-Do you see a practical difference between throwing a young child into the sea and sabotaging a vessel on which a young child is being carried so that it sinks and the child ends up in the sea? Do you see a difference? Rear Adm. Smith-I guess you are asking for my opinion there, Senator. The end result is exactly the same. It would be very hard to put intention and motive to those two different incidents. I would not like to draw that conclusion. CHAIR-Do you make a distinction between a threat as opposed to an actual event? If it is oranges with oranges, it is throwing kids into the sea or sinking a vessel which kids are in-or if it is a threat to do either. They are direct comparisons in either case. But a threat to throw someone in is not the same as actually sinking a vessel, is it? Rear Adm. Smith-That would be my view, yes. Senator BRANDIS-If the vessel is deliberately sunk and the children end up in the sea then they are actually in the sea; they are not merely being used as a lever or a device. Rear Adm. Smith-As Senator Cook pointed out, trying to get apples and apples here, I would liken the deliberate sinking of the vessel to be the same as actually throwing someone in the water. Senator BRANDIS-Thank you. Senator JACINTA COLLINS-Do we know it was deliberately sunk? Senator BRANDIS-We will see what the statements say, Senator Collins. CHAIR-Do we know who actually sunk it, if it was? Senator JACINTA COLLINS-You raised the hypothetical, Senator Brandis. CERTAIN MARITIME INCIDENT CMI 644 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-Having established the hypothetical, let us now turn to the facts of this case. We will start with Lieutenant Commander Heron. This was, of course, the very unfortunate occasion on which two female adult PIIs died. Is that right? Rear Adm. Smith-That is correct, Senator, and if I could just put on the record- Senator BRANDIS-Would you like to elaborate on that, Rear Admiral Smith-on your understanding of the circumstances? Rear Adm. Smith-I would like to get it on the record if I could, please, that I am not in a position to be able to talk too much about that as there is still a Federal Police inquiry under way and we anticipate a coronial inquiry on completion of that. Senator BRANDIS-Then I will not ask you any more questions about that aspect of the matter. Can you go to page 4 of Lieutenant Commander Heron's statement. At the start of the second last paragraph on the page you will see that he says he was informed by Petty Officer Duff that the father of the children being tended in the senior sailors' mess-this is obviously after the sinking and rescue-had told him that the Iranians started the fire on board SIEV10. Rear Adm. Smith-That is what is stated here, yes. Senator BRANDIS-There were in fact a number of different ethnicities among the PIIs on SIEV10. Are you familiar with this bracket of statements, Admiral Smith? Rear Adm. Smith-Yes, I am. Senator BRANDIS-I do not want, in view of the time, to go laboriously through each one. But is it a fair summary to say that there was a debate as to which group of PIIs the fire was commenced by? They were blaming each other, in other words. Rear Adm. Smith-Yes, they were. The mix on board this particular SIEV, I believe, was Afghani and Iraqi, and there were some Iranians. In the statements here, one group blames the Iranians and one blames the Iraqis. So there was a bit of a counterclaim as to who actually did it. Senator BRANDIS-Let me cut to the chase: having reviewed these statements-and there are 11 of them-do you have any doubt at all the that the sinking of this vessel was caused by people on the vessel? Rear Adm. Smith-I have no doubt at all. Senator BRANDIS-Regardless of whoever on the vessel did it, do you have any doubt that it was a deliberate act? Rear Adm. Smith-I have no doubt at all the that there was a fire lit by the people on board that vessel, that there was a subsequent explosion and, as a result of that, the ship foundered. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 645 Senator BRANDIS-Let me refer you to a couple of relevant extracts. Do you have Sublieutenant Brock Symmons's statement? He is the gentleman from the Royal New Zealand Navy who was on an exchange duty of some description. Rear Adm. Smith-Yes, I have that. Senator BRANDIS-I refer you to the second page of his statement where he describes the event from the time at which visual contact was made. Am I right in thinking that in relation to SIEV10, the HMAS Wollongong did not respond to a distress call? Rear Adm. Smith-No. The Customs vessel Arnhem Bay first detected this particular SIEV, and Wollongong responded. Senator BRANDIS-Was the SIEV in a seaworthy condition and under steam in the direction of Australian territory at the time it was first sighted by the crew of the Wollongong? Rear Adm. Smith-The initial identification was done by the Customs vessel Arnhem Bay, which reported the SIEV in the vicinity of Ashmore Island and issued warnings. At that time, the SIEV appeared seaworthy and there were no visible signs of any distress. Senator BRANDIS-You have no doubt that the fire, which you have no doubt was deliberately lit, was started after contact had been made by HMAS Wollongong with SIEV10? Rear Adm. Smith-That is correct. Senator BRANDIS-Are you in any doubt that the purpose of the fire was to destroy the vessel and compel a SOLAS situation? Rear Adm. Smith-I have no doubt at all. CHAIR-It is interesting that the New Zealand Navy cannot spell Fremantle; they spell it `Feemantle'. As a Western Australian I am deeply offended! Senator BRANDIS-We have statements here as well from Lieutenant Commander McLaughlin, Chief Petty Officer Zanker, Petty Officer Philp, Petty Officer Duff, Petty Officer Yeardley, Able Seaman Hillier, Able Seaman Walker, Able Seaman Hogarth and Able Seaman Mooney. Are you familiar with all of those statements? Rear Adm. Smith-Yes, I am. Senator BRANDIS-Am I right in believing that each of those statements is consistent with and supports the proposition that you have expressed to this committee-that is, the fire was deliberately lit by occupants or PIIs on board for the purpose of sinking the vessel and compelling a SOLAS situation? Senator JACINTA COLLINS-I do not think he said that. He has not said that the purpose was to sink the vessel. Stop putting words in his mouth. CERTAIN MARITIME INCIDENT CMI 646 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-I will put a proposition to him: are those statements consistent with the proposition that the sinking of the vessel was caused by a fire which was deliberately lit for the purpose of creating a SOLAS situation? Rear Adm. Smith-All of those statements are consistent with that assertion, yes. Senator BRANDIS-In your professional judgment and on the basis of your analysis of the statements, is it your belief that that is what happened? Rear Adm. Smith-That is my belief, yes. Senator BRANDIS-There are some photographs with handwritten notations in this part of the bundle of documents. Do you have them there? Rear Adm. Smith-Yes, I do. Senator BRANDIS-There were 33 children rescued by the Royal Australian Navy from SIEV10, weren't there? Rear Adm. Smith-That is correct. Senator FAULKNER-Your figures on the spreadsheet say that out of the 164, 21 were females, 33 were children and two were deceased females. Are the two deceased females included in the 21? Rear Adm. Smith-Are the two deceased included in the 21? I assume that to be the case. I would need to confirm that, Senator. The total was 164; that is confirmed. Senator FAULKNER-Including the two deceased. Rear Adm. Smith-Including the two deceased. CHAIR-I think the deceased were recovered and transported to Christmas Island. Rear Adm. Smith-Eventually they were, Senator. Senator BRANDIS-Have you finished, Senator Faulkner? Senator FAULKNER-I thought you were checking the numbers. Senator BRANDIS-No, I was not. I just wanted to establish-and I think I already have- that among those recovered from the water there were 33 children. Rear Adm. Smith-That is correct. Senator BRANDIS-The two deceased people were adult females? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 647 Rear Adm. Smith-Yes, they were adult females. Senator BRANDIS-So the lives of all the children were saved. Rear Adm. Smith-That is correct. Senator BRANDIS-There are just two photographs in this sequence of 11 that interest me. With photograph No. 5, on the photocopies I have there are handwritten notations or descriptions of the photos, but I see you have the actual print copies of the photos. Are the notations written on the back of the photos? Rear Adm. Smith-Yes, they are. Senator FAULKNER-They have not been removed. Rear Adm. Smith-What has not been removed, Senator? Senator FAULKNER-Any captions or descriptive material about these photos. That has not been removed on this occasion. Rear Adm. Smith-The photographs I have have explanatory captions on the back, Senator; that is correct. Senator FAULKNER-That is good; it is still there. It has not been removed. Senator JACINTA COLLINS-You cannot read- Senator FAULKNER-Yes, I know. Senator BRANDIS-Just to make sure that we do not have any confusion in this evidence, would you mind passing up those photographs? Senator FAULKNER-And the government has not removed them. That is good. The Navy have caught up with you. They are not making electronic records; they are actually writing on the back of the photos in pen. It is the smartest thing, Admiral Smith; you have really got them this time. Senator BRANDIS-We can do without the theatre. Senator FAULKNER-It is the smartest thing. Senator BRANDIS-I am second to none in my admiration of your Thespian qualities, Senator Faulkner. We can do without them just now, thank you. Senator FAULKNER-You need to learn some, I think. CERTAIN MARITIME INCIDENT CMI 648 SENATE-Select Thursday, 11 April 2002 Senator BRANDIS-I think I will stick to a clinical analysis of the facts and I will leave the theatricality to you, Senator Faulkner. CHAIR-Why don't we just stick to asking the witness questions. Senator FAULKNER-I have made some theatrical references in relation to you. CHAIR-It would be nice if we could finish at a reasonable hour. Senator BRANDIS-I have nearly finished. I am on my last couple of questions. Senator Mason then has SIEV11 and SIEV12 to deal with. Turning to photograph No. 5 please, Admiral Smith, do you know who wrote the descriptive caption on the back of each photo and the circumstances in which it was written? Rear Adm. Smith-No, I do not. Senator BRANDIS-Whomever it was has annotated photograph No. 5, `baggage in water WOL'-presumably that means Wollongong- Rear Adm. Smith-That would be it. Senator BRANDIS-`Holding party offered wads of US dollars by some PIIs as they embarked Wollongong. No Wollongong ship's company accepted this money.' Was the offering of money by PIIs-in this case specifically US dollars-encountered on occasions other than this occasion? Rear Adm. Smith-I am not aware of any other incidents. Senator BRANDIS-Thank you. Would you go to photograph No. 7, please? You will see the notation is, `Note baggage in water. People in floating life rings. 98 per cent of PIIs in life jackets remained in inflated tyre tubes, children's pool toys. One very young baby (max two weeks old). Picked up another child (12 months). Wrapped up in several life jackets and secured. No parents in attendance when child picked up.' Do you see that? Rear Adm. Smith-Yes, I do. Senator BRANDIS-So far as your analysis of the source material and all the statements of all the SIEV incidents tells you, was this the youngest child, a maximum two-week-old child, who ended up in the water? Rear Adm. Smith-That would be my assessment, yes. Senator BRANDIS-Thank you, Admiral. Senator Mason will deal with incidents 11 and 12. Senator FAULKNER-I am looking forward to that. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 649 Senator BARTLETT-Chair, I raise a question in terms of the amount of time left this evening, which is an hour and 10 minutes, and whether there will be any space available for me to raise any questions. We have had some new evidence presented to us tonight, and there are one or two broader questions I wouldn't mind having time to ask. Senator MASON-Chair, I can indicate how long I will be. I will certainly be finished by half past 10 and nearly definitely before. SIEVs 11 and 12 will not take long. Then I have just a few questions on process, and that is it. CHAIR-Okay. I have a few questions to finish off the examination. How much time do you want, Senator Bartlett? As I said earlier at the beginning, I appreciate the admiral is being conscientious in bringing this matter forward, but there may be questions that arise from it and there is always the device of putting those questions on notice. I would really like to complete Rear Admiral Smith's evidence tonight. Senator FAULKNER-I would strongly suggest to you and the committee, Mr Chairman-I have not tried this out on the witness, and I do not know what his view is-that we ought to finish with this witness tonight. If it means we have to go past 11 o'clock, I am sorry for Rear Admiral Smith but I am sure at the end of the day he would see the good sense of actually spending a few extra minutes tonight and not coming back here later and losing yet another day out of what is a very busy life. CHAIR-I would like everyone to focus on completing their questioning of Rear Admiral Smith by 11 o'clock. We will go to Senator Mason or Senator Bartlett now and see if we can fit it all in. I am sure Senator Mason would be mindful that we want to be out of here by 11 o'clock. Before we do that, just on photograph 7, this is the SIEV from which two adult women were drowned? Rear Adm. Smith-That is correct. CHAIR-Do we know whether the children referred to in this photo belonged to either of those women? Rear Adm. Smith-I do not believe that is the case. The children in the photograph were reunited with their parents. Senator JACINTA COLLINS-But this was a naval boarding party `abandon ship' exercise, wasn't it? Rear Adm. Smith-This was not a Navy boarding party `abandon ship' exercise; this was a ship sinking and the UAs panicking after the explosion and a mass exodus from a sinking ship. Senator JACINTA COLLINS-It is just that some of the statements actually indicate that they were advising SUNCs to abandon ship. Rear Adm. Smith-The boarding party were assisting a panicking group of UAs to exit a sinking vessel. CERTAIN MARITIME INCIDENT CMI 650 SENATE-Select Thursday, 11 April 2002 Senator JACINTA COLLINS-But were they not advising them to abandon ship? Rear Adm. Smith-No, these people were abandoning ship and the boarding party were facilitating that, helping them do that, as safely as we possibly could. Senator JACINTA COLLINS-I appreciate you do not want to go too much further on that issue because perhaps that will become part of the other investigation. Rear Adm. Smith-Senator, if you are suggesting the boarding party directed these people to abandon ship, that is not the case. Senator FAULKNER-Is the AFP investigation into the two deaths or into the sinking or into the relationship between those matters? Rear Adm. Smith-It is into the death of the two women. Senator JACINTA COLLINS-Some people actually remained on the ship, and were rescued off the ship. But of those that went into the water two of them died. So the question that remains open is: why did they go into the water? CHAIR-All right, we will go to Senator Mason. Senator MASON-Thanks, Chair. Rear Admiral, with SIEV11 and the documents relating to that including your events summary, a statement has been produced tonight from Lieutenant Richard Mortimer. In the events summary you claim that some PIIs in relation to SIEV11 `threatened self-harm or to jump overboard'. Do you have Lieutenant Mortimer's statement with you? Rear Adm. Smith-Yes, I do. Senator MASON-Just to justify that in terms of primary sources, on the second line Lieutenant Mortimer says: ... I recall an item of conversation that pertained to the demand made by the UAs for UN representation on arrival at their destination in what they believed to be Indonesia. If this demand was not met several of the UAs threatened to commit self-harm or jump overboard. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-Then Lieutenant Mortimer says: This demand was again reiterated to me by the UAs during my watch ... Is that correct? Rear Adm. Smith-That is what he states. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 651 Senator MASON-So it is the same pattern of conduct again? Rear Adm. Smith-Yes, it is. Senator MASON-Can we move to SIEV11? Rear Adm. Smith-We are on SIEV11. Senator MASON-Sorry, SIEV12. Senator FAULKNER-Jesus, come on! Senator MASON-In this particular SIEV we have, just to get the documents right, the Titheridge minute, which relates to SIEV12, is enclosure 4. Is that correct? Rear Adm. Smith-Yes, that is correct. Senator MASON-I think that is replicated in the minute to the Chief of Navy, which is enclosure 5. Rear Adm. Smith-Yes, that is correct. Senator MASON-In your event summary you say: * PII were particularly belligerent and disrupted efforts to return them to Indonesia on a number of occasions during the ensuing few days. Such action included: And here we get a broad brush of the pattern of conduct that we have been talking about for the last two days. I will go through it: jumping overboard (4 occasions), lighting fires (3 occasions), holding children over the side threatening to throw overboard (once), attempted self-harm (twice ­ knife to the throat & dousing with/ingesting petrol), and sabotage (twice). Is that correct? Rear Adm. Smith-That is correct. Senator MASON-So you base that on the statements of Lieutenant Damien Casey and also Lieutenant Richard Peter Mortimer. Is that correct? Rear Adm. Smith-There is a range of evidence to support those particular incidents ranging from operational reports through to witness statements. That is correct. CERTAIN MARITIME INCIDENT CMI 652 SENATE-Select Thursday, 11 April 2002 Senator MASON-Can we go, first of all, to Lieutenant Richard Mortimer's statement. I think he was one of the officers in charge of the boarding party that embarked from HMAS Leeuwin. Is that correct? Rear Adm. Smith-That is correct. He is a Royal Navy officer on exchange-an Englishman. Senator MASON-Thank you. There are a number of dot points under the heading of 17 December 2001. I will quickly go through these. This relates very much to your matrix. The second dot point relates to an attempt to light a fire. Is that correct? Rear Adm. Smith-That is correct. Senator MASON-The third dot point relates to people jumping overboard. Is that correct? Rear Adm. Smith-Yes, it does. Senator MASON-The fifth dot point relates to an attempt to light a fire? Rear Adm. Smith-That is correct. Senator MASON-A fire was in fact lit but it was extinguished by the boarding party. Is that right? Rear Adm. Smith-That is correct. Senator FAULKNER-Don't you think, Rear Admiral Smith, that either Senator Brandis or Senator Mason should throw you in a curly one that is not correct that would really trick you? Senator MASON-We have to get through this pattern of conduct, Senator Faulkner. I am trying to be as quick as I can. Thank you for that assistance. The next dot point is about a child being held over the side. Is that correct? Rear Adm. Smith-One more beyond the fire lit? Senator MASON-Sorry; another fire was attempted to be lit? Rear Adm. Smith-Yes, that is correct. Senator MASON-And the next one is that a child was held over the side? Rear Adm. Smith-Yes, that is what it says. Senator MASON-And then some unauthorised arrivals did jump overboard? Rear Adm. Smith-Six people, yes. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 653 Senator MASON-And then the next dot point is about some unauthorised arrivals using part of the decking as a weapon? Rear Adm. Smith-Yes, that is correct. Senator MASON-And the next dot point is about an unauthorised arrival smashing the window on the bridge of the vessel? Rear Adm. Smith-Yes, a female did that. Senator MASON-And the next dot point is about self-harm, another part of the pattern of conduct? Rear Adm. Smith-Correct. Senator MASON-Then a member of the boarding party was pushed into the water, but from that information you cannot tell whether that was deliberate or not, Rear Admiral? It is the second last dot point on the first page. Rear Adm. Smith-The way I interpret that comment is that it was probably more accidental than intentional. Senator MASON-Thank you. On the next page under 18 December there is a male translator threatening to kill his wife. Rear Adm. Smith-That is what is stated here, yes. Senator MASON-The next one is about threats again to throw children over the side? Rear Adm. Smith-Correct. Senator MASON-Under the heading of 19 December the second dot point says that four illegal immigrants jumped overboard. Rear Adm. Smith-That is correct. Senator MASON-Under the third dot point it says that the leader of the Afghani group reported death threats against him from the Iraqi contingent? Rear Adm. Smith-That is correct. Senator MASON-You will be pleased to know-oh, Senator Faulkner has gone. But the final point is about putting valium in people's tea to calm everyone down; is that right? Rear Adm. Smith-That is what is alleged, yes. Senator BRANDIS-Perhaps we could do that to Senator Faulkner. CERTAIN MARITIME INCIDENT CMI 654 SENATE-Select Thursday, 11 April 2002 Senator MASON-Perhaps we could. Admiral, there are a lot of incidents there with sabotage, self-harm, holding children over the side, lighting fires and jumping overboard. That is part of the pattern of conduct, again? Rear Adm. Smith-Yes, it is. Senator BRANDIS-Can I just ask one question arising out of the pattern of conduct: it strikes me that in the vast majority of, though not all, cases this threatening conduct in relation to children is engaged in by male PIIs not female PIIs; is that your analysis? Rear Adm. Smith-With one or two exceptions, that is the case, yes. Senator BRANDIS-It is also, as far as I can see, a pattern of conduct. Of course, threatening a child is naturally a threatening thing to the mother. But, independent of the threats to children, there is also a multiplicity of occasions of threats to women by male PIIs. Again, is that what you have detected in your analysis? Rear Adm. Smith-I have not drawn that conclusion, Senator, no. Senator BRANDIS-All right, thank you. There are some instances of it- Rear Adm. Smith-There are some instances, yes. But I could not say that it was a common- Senator MASON-Admiral, Senator Brandis and I have taken you through the event summaries of SIEV1 to SIEV12 inclusive. We have discussed a pattern of conduct that has been used by unauthorised arrivals, involving all sorts of conduct. Can I just ask a question about the reporting of these instances up the chain of command: what is the chain of command or the protocol for reporting these incidents, whether it was from SIEV4, SIEV5, SIEV6, or SIEV7, and so forth? What is the chain of command? How does it work? Rear Adm. Smith-The official reporting is by operational report-the op rep that we have referred to a number of times-which is from the tactical unit, the ship involved in it, to the JTF commander, Brigadier Silverstone. In turn, Brigadier Silverstone relays that information to me; he onforwards the op rep to my headquarters. We, in Maritime Headquarters, have the responsi- bility to collate this information and to provide a synopsis of these events further up the chain of command, which we do. Senator MASON-A synopsis of this information? Rear Adm. Smith-We do not just turn around the original report. My responsibility is to gather the information, to analyse the information and to make some conclusion from all that information, which we then relay to the Theatre Commander, Admiral Ritchie. Senator MASON-Admiral Ritchie; that is right. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 655 Rear Adm. Smith-We relay an information copy, as well, to Defence headquarters in Canberra-Air Vice Marshal Titheridge's area. Senator MASON-Let us take an example out of all these SIEV instances. Let us take SIEV7, where a child was actually thrown overboard. There were threats to throw a child- Senator JACINTA COLLINS-Dropped, Senator. Senator MASON-I said `dropped'. Senator JACINTA COLLINS-No, you said `thrown'. Senator MASON-Dropped overboard. A child was threatened to be thrown-or children were threatened to be thrown-overboard. There was threatening and offensive behaviour. There were threats of suicide, sabotage of the vessel, fires lit, threats to the boarding party and so forth. In your synopsis to Admiral Ritchie, did you include all that information? Rear Adm. Smith-Yes, I did. In fact, in those particular cases, the op rep itself was turned around by my headquarters and sent intact to the theatre headquarters and to Defence headquarters in Canberra. Senator MASON-It went to Canberra. By that do you mean to Admiral Barrie or Air Vice Marshal Titheridge? Rear Adm. Smith-It went to Air Vice Marshal Titheridge's organisation: Strategic Command. Senator MASON-Do you know from Air Vice Marshal Titheridge in what form that information went, if it all, to the joint task force on people-smuggling? Rear Adm. Smith-No, I do not know that. Senator MASON-I will have to ask that question later on. Thank you very much. CHAIR-Well, we can perhaps get out of here- Senator FAULKNER-Here is a filler for you: the way I work it out- CHAIR-We do not need fillers, but ask your question. Senator FAULKNER-The way I work it out, there are 2,215 asylum seekers listed on your spreadsheet. Would that be the correct figure? I have had a lot of time on my hands here. I have added it up three times on the calculator, so I am pretty confident. It sounds about right, doesn't it? Rear Adm. Smith-It sounds about right, Senator. CERTAIN MARITIME INCIDENT CMI 656 SENATE-Select Thursday, 11 April 2002 Senator FAULKNER-I reckon it is spot on. Of those 2,215, we have come to the grand total of one being dropped over the side. Rear Adm. Smith-One child? Senator FAULKNER-Well, one, which was a child. Rear Adm. Smith-One child dropped over the side; that is correct. Senator FAULKNER-One child and no adults. Rear Adm. Smith-There are many adults who have gone over the side. Senator FAULKNER-But they were not assisted. Rear Adm. Smith-I have no evidence to suggest that any adult has been thrown over the side. Senator FAULKNER-That is right. So there were 2,215 and one was dropped over the side. Thanks. Senator MASON-I would like to ask a supplementary question. I asked in relation to SIEV7 whether the information went through to Air Vice Marshal Titheridge, and that included all those parts of the pattern of conduct I mentioned. Is that also the case in relation to every other SIEV? Rear Adm. Smith-That is correct, Senator. Senator MASON-Thank you. CHAIR-I have not had a turn, but I am not complaining about that. Senator Bartlett, if you would not mind- Senator BARTLETT-Try to wrap up by half-past. CHAIR-Sooner than that, if possible. Senator BARTLETT-Regarding Senator Faulkner's question then, and what we have been through this evening, would it be fair to say that the pattern of behaviour is more in terms of making threats in relation to children-and other acts of aggression-rather than carrying out those threats in terms of throwing the children overboard? Rear Adm. Smith-No, I would not agree with that, Senator. There are many aspects of the behaviour that are separate to this issue with children. I do accept that there was only one incident of a child being dropped over the side. There were many other incidences, however, of behaviour-not just threatened but actually conducted-of self-harm, of damage to the vessels CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 657 which they were in, and sabotage to the engines and other parts of the vessel. There were many instances of actual deeds as opposed to just threats to do things. Senator FAULKNER-I have always accepted that, and still do, and I do not need to be told at great length that that is the case. The good thing is-it is quite remarkable, really, isn't it?- that out of those 2,215 only two died. That, I think, says a lot for the Royal Australian Navy. Rear Adm. Smith-I would certainly have that view. I think the professionalism of the men and women who have been conducting this operation in very difficult circumstances is highly commendable. It is through their efforts that we have had only those two fatalities. The potential for others was always there. Senator FAULKNER-I agree with you. If we are being honest with ourselves, I think it also says a lot for those asylum seekers. Would you agree with that? That is the point that Commander Banks made to us. Rear Adm. Smith-I am happy to comment on the performance of our own people. Senator FAULKNER-Fair enough; you do not want to comment. But I think the statistics are very stark. I think they say an awful lot for people under your command and they do put some of these events in perspective. We can all be thankful that, out of that very high number on the 13 events that we have specific numbers for, only two people-and they were two adult women-died. Rear Adm. Smith-I would agree with that, yes. Senator BARTLETT-I want to go to those incidents where people did actually undertake violent actions. In terms of the phrase `pattern of behaviour' that is used in relation to children, we have the one instance of a child being dropped in the water. We have a lot of allegations of threats of various types, but very few behaviours where the threat has been carried out in relation to the child. Rear Adm. Smith-That is correct, Senator, yes. Senator BARTLETT-I am interested in terms of what happens with people. Obviously, on these boats there are some people-and no-one has ever disputed it-who get aggressive or violent. There is always the potential on these boats that there are some people who are trying to sneak through and who know that they do not necessarily meet the requirements for refugee status, and they may well be the ones who are most desperate in terms of the level of violence. To try to kill two birds with one stone, I want to go to this alleged strangulation incident. Leaving aside for a second the now discredited allegation about a child being attempted to be strangled, one of the statements here in relation to that incident is by Guille Newham from the Arunta and was taken on 8 April. I am assuming this is the same incident as Able Seaman McQueen refers to and that the group of six people with that joint statement are referring to. Rear Adm. Smith-No. I believe McQueen is talking about incident 3. The Newham one is incident 2. CERTAIN MARITIME INCIDENT CMI 658 SENATE-Select Thursday, 11 April 2002 Senator BARTLETT-I have a Newham statement with `incident 3' at the top. Rear Adm. Smith-I am sorry, I may have- Senator BARTLETT-I think there are two from Newham. Rear Adm. Smith-Yes, you are quite right, Senator. I beg your pardon. Senator BARTLETT-This one is incident 3 at approximately 2000 hours. Rear Adm. Smith-Yes. Senator BARTLETT-Paragraph 5 there talks about a confrontation and states: I observed a solidly built male ... holding on to a child roughly with one arm whilst the mother struggled with him. The mother was holding onto the lower legs of the child, whilst the male had his right arm wrapped around the childs upper torso. As you understand it, is that the same incident as is referred to in the statement by the six people? It is referred to as incident 2, a little confusingly, but I think we have established that. Would you see that as being the same? Would you see that as probably referring to the alleged strangulation? Rear Adm. Smith-No, that one is referring to incident 3. Senator JACINTA COLLINS-Which is the strangulation attempt in the Titheridge report. Senator BARTLETT-We have ourselves confused on this. Senator JACINTA COLLINS-Sorry, the non-strangulation attempt, Senator Faulkner tells me. Rear Adm. Smith-I am not quite with you here, Senator. Senator BARTLETT-In the Newham statement, he refers to incident 2 and incident 3. I have a single page by Newham. Rear Adm. Smith-Yes. At the very top it tells you what incident it is. Senator BARTLETT-Yes. The single page is incident 3- Rear Adm. Smith-Right. Senator BARTLETT-at approximately 2000 hours. Rear Adm. Smith-Yes, 2000 hours local. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 659 Senator BARTLETT-Just to be clear, I also have a statement by Able Seaman McQueen, which was referred to earlier as incident 3. Rear Adm. Smith-Yes. Senator BARTLETT-I also have statements by Lieutenant Commander Taylor and Kent Pedersen as incident 3. They are all single pages. Rear Adm. Smith-Yes. That is correct. Senator BARTLETT-In addition to that, I think this was with the three-page statement headed by Lieutenant Henry and signed by six people. They refer to that witnessed by Lieutenant Corporal Mahalm, on the second page, which has been read into the record. But that is called incident 2 on this document. Rear Adm. Smith-That incident 2 I believe to be incident 3 in the Newham statement. Senator JACINTA COLLINS-Is that incident 3 in the Titheridge? Rear Adm. Smith-Senator, come on! Yes, I believe it is. Senator JACINTA COLLINS-Thank you. Senator BARTLETT-Going to the statement, according to the witness, Lance Corporal Mahalm, as we have already heard, he says quite clearly: This incident occurred because the young female trying to join into the riot and the father did not want any of his family members involved. That is almost the exact opposite-in fact it is the opposite-of threatening harm. The other main one that seems to refer to an incident with a child and someone holding it is this one by Newham, which, in paragraph 5 of the statement, says: The mother was holding onto the lower legs of the child, whilst the male had his right arm wrapped around the childs upper torso. The statement does not use the word `strangulation' or anything like that. It does say the male `had previously threatened to throw a child overboard' and this male was then taken away and restrained, put in cuffs, and it was suggested he should be guarded with a right foot in the vicinity of his groin which might assist in restraining him. That also seems a little different to the suggestion that it was just a father trying to stop his daughter getting involved in the riot. All it says to me is that it again highlights the intensity of those sorts of situations. I do not actually expect word for word precise matching accounts from everybody on board-it would almost be suspicious if you had that. What I am interested in is, when you have a male who is perceived to be acting in a threatening manner-we have heard of the example tonight of someone actually punching a sailor-what actually happens in those circumstances? What methods are used to control people? Are you able to handcuff people, use pepper spray or something like that? CERTAIN MARITIME INCIDENT CMI 660 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Before I talk to those things, Senator, if I could just clarify a little bit, the statement by Newham, which refers to this male holding one end of a child while the female holds the other end, which is supported also by Leading Seaman William Taylor's statement, is not referring to the same incident that Lance Corporal Mahalm is talking about. They are different things. Senator BARTLETT-All right. Rear Adm. Smith-In terms of what the boarding party and the transit security element are able to do to contain aggressive behaviour on board, they have a range of options available to them up to a certain level. The sailors do not have any facilities to restrain people; the soldiers are trained in this sort of thing. The way they can do that is by using electricians' cable ties to temporarily restrain someone, which has been done on occasion. We would try not to keep that for too long, but it is just to calm people down and regain control of that situation. The TSE sailors have batons and they are trained in the use of that sort of thing. The only people trained to use non-lethal weapons such as capsicum spray are the soldiers, and they carry that. It was necessary to use that on very few occasions. There was certainly one incident that I can recall but I will have to check it. But at all times the TSEs and the boarding parties are briefed that minimum force is all that should be used consistent with the situation they find themselves in. Senator BARTLETT-When you identify someone that is apparently violent-we have had an allegation of assault-is any attempt made at the other end to address that? Are they pointed out to the Federal Police and is that followed up in any way, or do you not see that as part of the task? Rear Adm. Smith-Not to my knowledge, Senator. Regarding some of these statements- particularly of the earlier SIEVs which were not returned to Indonesia but where the crews did come ashore on, say, Christmas Island-the ships provided as much information as they had, in terms of statements and so forth, to the Australian Federal Police and that is, essentially, where we handed over that responsibility. Senator BARTLETT-We stepped through last week the initial interception procedures, including the warning messages that are provided to the crew. A few statements referred to handing out pamphlets to passengers. Are we able to get copies of what those pamphlets and messages are? Rear Adm. Smith-I certainly have all the warning messages that have been used; I am not sure of the pamphlet thing. I would have to look at that for you, Senator. Senator BARTLETT-I will see if I can find a reference to one of them. I am wondering if there was a message to the passengers, as opposed to the warning messages to the crew. Rear Adm. Smith-No, the warning messages were very much to the crew. It was trying to get the crew to desist from what they were attempting to do-which was to come to Australia- and turn around and go back. Senator BARTLETT-Was anything specifically provided or told to the passengers? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 661 Rear Adm. Smith-Not that I am aware of, but I will take it on notice and confirm that. Senator BARTLETT-Thanks. I will see if I can find a reference to them in some of the statements. What other things were the boarding party directed to say to the passengers? I am sure passengers were saying, `Where are we going? What's happening?' There was a statement by Captain Algie on SIEV5-which, if I remember correctly, was one of the ones that was taken back to an Indonesian island. I quote: ... were officially told they would not be coming to Australia and that we in fact had delivered them safely to the Indonesian Territorial Sea... It makes it sound a bit like they did not actually tell them until they got there that this was where they were going. Is that the way they are meant to do things? Rear Adm. Smith-That is a fair assessment, Senator. In a lot of cases-and you have seen comments in some of those statements by the boarding officers-they were unable to tell the UAs where they were going to go to; that is the fact. Much of this was being discussed in Canberra, it was policy and, on many occasions, we were not sure of what the next step was going to be. Certainly, when the decision to return the vessels to Indonesia was relayed to us, a conscious decision not to inform the UAs was taken, for obvious reasons: that was not what they wanted, and it would create a problem for us. The timing of when that sort of information was passed to them was very much at the discretion of the commanding officer on the spot, once he was made aware of what their destination was going to be. Senator BARTLETT-A few of the statements also refer to the fact that people on board were either calling out for the UN, wanting to speak to the UN, or were stating that they were refugees. Is that of any relevance, in terms of the orders you had been given in the guidelines for the operations? Is the fact that people say, `We are refugees' of any relevance? Rear Adm. Smith-It had no relevance for us. Our mission was clear-that is, to intercept and then to carry out whatever direction we were given subsequent to that. The status of these people was irrelevant to us. Senator BARTLETT-Was that specifically outlined in the operational guidelines that you were given-that, when you have people in Australian territorial waters saying, `I'm a refugee', such claims have no impact on your mission? Rear Adm. Smith-Our mission was clear. Claims from the UAs were not factors to be taken into account in terms of how we conducted that mission. We expected those sorts of claims to be made. Our mission, however, was clear, and that is the way we executed it. Senator BARTLETT-That is the mission as given to you by the government. Rear Adm. Smith-That is correct. Senator BARTLETT-Using that SIEV5 example again, how is it decided that a boat is seaworthy enough to make the return journey? Is that just the professional assessment of the commander of the vessel? CERTAIN MARITIME INCIDENT CMI 662 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-It is the professional judgment of the commanding officer of the ship involved in the incident as to whether or not the ship was seaworthy enough, and I accepted that without question. Senator BARTLETT-So they would not normally seek advice further up the chain? Rear Adm. Smith-There is no-one better to make an assessment like that than the person on the spot. Senator BARTLETT-We have heard of those two deaths. There was that baby on board SIEV5 when it returned to Indonesia, and that baby was still alive when the boat left. Rear Adm. Smith-That is correct. Senator BARTLETT-What happens with other encounters at sea? Let's say you are patrolling and you run into illegal fishing vessels or suspected drug trafficking vessels or vessels that are suspicious, and then there are lost yachtsmen and those sorts of things. Do the same rules of engagement apply or is there a completely different set of circumstances? There are a few different scenarios there. Rear Adm. Smith-There are quite a few different packages there-lost yachtsmen are treated a bit differently to a fishing boat or something. In the case of fishing, we have our eco- nomic exclusion zone, where we have regulations and licensing processes for fishing boats. We run patrols under Operation Cranberry to surveil those areas. If we find fishing boats within the Australian economic zone which are not licensed, we place boarding parties on board. Subject to advice from the department of fisheries as to how they want to play that particular incident, the boats will be either released or escorted into the nearest port. Our procedures are very much dependent upon who it is that we are dealing with. If we were involved in an operation like the drugs one that you mentioned, which we are not routinely, we would be working on behalf of Customs and we would respond in the way they wished us to respond. Senator BARTLETT-In terms of that broad area of activity-and I am referring to a new submission we have in today from Dr Bateman, a former commodore with the RAN-would you describe the arrangements that are in place at the moment in northern Australia for intercepting people as temporary or permanent or just ongoing until otherwise advised? Rear Adm. Smith-It is certainly the latter, Senator. That would be a question for the government. As far as I am concerned, this is an ongoing operation and I have no indication that it has an end date. Senator BARTLETT-What is the distinction between military surveillance and civil surveillance? Rear Adm. Smith-We work together. The national surveillance of this country prior to Operation Relex was the responsibility of Coastwatch. Coastwatch have civilian aircraft that surveil our northern approaches in particular. The Navy provided patrol boat support as a response capability to Coastwatch as part of that overall effort. That responsibility remains extant. Where it has changed is with the introduction of Operation Relex, which is specifically CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 663 focused against illegal entry vessels. The Navy has prime carriage of responsibility and the civilian agency Coastwatch with its aircraft is in support of us for that operation, so we have turned the whole thing around. Under Cranberry, we support the civil agencies and they have the lead; for Relex, the ADF have the lead and the civilian agencies are in support. Senator BARTLETT-So it depends a bit on what the vessel is: if it is a people-smuggling vessel, you are the focus; if it is another type of vessel, then you are the support. Rear Adm. Smith-That is correct. It is only suspected illegal entry vessels that are the subject of Operation Relex. Senator BARTLETT-Are you aware of any plans to meld those two together in a more cohesive way so that you do not have those divisions of focus? Rear Adm. Smith-We have no plans at the moment to do that. CHAIR-Let me just conclude the questioning by asking you a few more questions, if I may, and just bear in mind reference (b) from our terms of reference. My understanding is that your evidence to us has been that, consistent with what Brigadier Silverstone has said, it was reported that a child, which later became children, was thrown overboard from the SIEV4 incident, and that was reported up the line of command. Rear Adm. Smith-That is correct, Senator. CHAIR-It is also my understanding that your evidence is that by 11 October this was understood not to be true and a correction to that earlier report was reported by you to the CDF on that day. Rear Adm. Smith-I reported that to Admiral Ritchie. CHAIR-To Admiral Ritchie on that date? Rear Adm. Smith-That is correct. CHAIR-Just refresh my memory: in the chain of command, where does Admiral Ritchie sit with respect to you? Rear Adm. Smith-He is my superior. He is the Theatre Commander and he is responsible directly to the CDF. CHAIR-So as soon as you became aware that the earlier report was not true, you reported it immediately to the person in the chain of command who is next above you? Rear Adm. Smith-That is correct. CHAIR-You did not report it to anyone else in the chain of command above him, or outside of the chain of command? CERTAIN MARITIME INCIDENT CMI 664 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-I reported to the chain of command, to Admiral Ritchie. I also reported outside the chain of command to the Chief of Navy, to whom I am also responsible. CHAIR-Admiral Shackleton? Rear Adm. Smith-That is correct. CHAIR-Can you tell me again what date you reported to Ritchie-was that the 11th? Rear Adm. Smith-No, it was on the 10th, in fact-Wednesday, 10 October. I had suspicions on the 9th and spoke to Commander Banks on the 9th. He could not confirm or otherwise the report. I told him to interview his ship's company that had some relevant information in connection with this incident and to call me back the next day-Wednesday, 10 October-with the outcome of that investigation. He did so on the morning of the 10th and told me that he had no evidence to prove that the incident of a child being thrown overboard had occurred. I told him to compile that information into a signal, a chronology, and to send that signal to me, which he did about 24 hours later, early on the morning of the 11th. So on the Wednesday, the 10th, when I had had that conversation with Banks, I then rang Admiral Ritchie and told him that there was no evidence to support the claim that a child had been thrown overboard. CHAIR-The manner of advising Ritchie was by a telephone call from you to him? Rear Adm. Smith-That is correct. That was what I had been directed to do. CHAIR-Is that call logged and recorded? Rear Adm. Smith-It is logged in my own telephone records, but it is not recorded. CHAIR-Did you communicate that advice in written form in any way? Rear Adm. Smith-No, I did not. CHAIR-Why was that? Rear Adm. Smith-I did not think it was necessary. I had advised Admiral Ritchie, who in turn contacted the CDF. Admiral Ritchie then rang me back to say that he had advised the CDF. Quite frankly, I felt that I had completed my obligations and that the chain of command had been informed and that there was no need to do it. CHAIR-The CDF is who? Rear Adm. Smith-Admiral Barrie. CHAIR-When did you advise Admiral Shackleton and what was the nature of the advice? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 665 Rear Adm. Smith-I had a number of calls with Admiral Shackleton. On that Wednesday, the 10th, I advised him after I had spoken to Admiral Ritchie-it was some hours later in the evening. I had a habit of contacting Admiral Shackleton at about six o'clock in the evening just to give him an update on what had occurred during the day. At that time I advised him that there was no evidence to support the claim. CHAIR-This was oral advice, not written? Rear Adm. Smith-That was oral advice, that is correct. CHAIR-Did anyone from the minister's office contact you directly about this? Rear Adm. Smith-No. CHAIR-Did any of your superior officers come back to you after your initial contact with them on this matter, to follow it up? Rear Adm. Smith-No, they did not. CHAIR-You were satisfied when you spoke to Admiral Ritchie that he had understood what you had said, passed it on and had come back to you and advised you that he had done so? Rear Adm. Smith-I had no doubt that he understood that. Admiral Ritchie and I talk regularly on a daily basis, we have discussed it many times between then and now and I have no doubt that we were both aware of that. CHAIR-And you are satisfied that when you advised Admiral Shackleton he understood what you were saying and took note of it? Rear Adm. Smith-Yes. CHAIR-I am sorry, did you actually say on which day you advised Admiral Shackleton? Rear Adm. Smith-I am less certain on what day that was, but I believe it was the evening of the 10th. Senator FAULKNER-I might have misunderstood you then, Admiral. Did you say you had discussed it with Admiral Barrie between then and now? Rear Adm. Smith-No, I have never discussed this with Admiral Barrie. Senator FAULKNER-That is what I thought. I must have misheard you. Rear Adm. Smith-I had discussed it with Admiral Ritchie. Senator FAULKNER-I am sorry, I misheard you. CERTAIN MARITIME INCIDENT CMI 666 SENATE-Select Thursday, 11 April 2002 CHAIR-No-one has gone to this matter, but let me just ask it. My understanding is that Operation Relex is not completed. Rear Adm. Smith-That is correct. CHAIR-It is not over. It is ongoing. Rear Adm. Smith-That is correct. It has been renamed: it is now Operation Relex II. The differentiation between the two is that SIEV1 to 12 was Operation Relex, and to be able to declassify the signals for the benefit of the committee it was necessary to move on to a new operation, which is called Relex II. Senator FAULKNER-Does Maritime Command come up with the names of operations, like Relex, for example? Rear Adm. Smith-No, that is done from Canberra, from Strategic Command. CHAIR-Under Relex II have there been any further SIEV incidents? Rear Adm. Smith-No. CHAIR-After or before September 11, when you were in charge of Operation Relex, were you asked to keep a watch for terrorists who might be posing as refugees? Rear Adm. Smith-I was not specifically asked to look for terrorists posing as refugees. CHAIR-To your knowledge have any of the refugees been identified as terrorists? Rear Adm. Smith-Not to my knowledge. Senator BRANDIS-Are you in a position to know? Rear Adm. Smith-Not necessarily so. CHAIR-But you do see the intelligence reports? I am not wanting to go to those intelligence reports. You nodded in the affirmative? Rear Adm. Smith-I have access to intelligence reports. CHAIR-Have you at any time, up until 10 November, advised the Minister for Defence that refugees may include terrorists? Rear Adm. Smith-No, I have not. CHAIR-Earlier in your evidence we talked about consultations you had engaged in or at least surveys of what types of actions had occurred where refugees come across the water in Europe-I think you said the Mediterranean- CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 667 Rear Adm. Smith-Yes. CHAIR-and in the United States. You referred me to the US Coast Guard web site. I will put a question on notice about this, because I have visited that web site and I cannot find a reference on it to children being thrown overboard, but there may be one because there are quite extensive references. I just note that the US example is an interesting one because there are many thousands of refugees that cross the water from either Cuba, the Dominican Republic or the People's Republic of China. There is a huge body of documentation about all of that. What I can find is a reference to a Coast Guard report to a congressional committee in 1999 in which they identify one incident, between the People's Republic of China and Guam, where a refugee threatened US Coast Guard personnel that he might jump overboard. I will ask you if you can perhaps go to some better sources on that, because I cannot find exactly those references about children going overboard. Also, in what looks like the financial year 2000 report there is one reference to Cuban refugees threatening, with knives and machetes, that they might injure a boarding party team, but again there is no reference to children. There are several thousand refugees from Cuba, the Dominican Republic and China. I will go to that on notice. I will now go to another area for a moment: the public relations handling of Operation Relex. We have the Defence Instructions (General) order signed by Secretary Hawke and Admiral Barrie on 8 August 2001 which varied the then arrangements for press and public comment. Are you aware of that instruction? Rear Adm. Smith-Yes, I am. CHAIR-I think you said, but I want to be careful about this, that there was at some stage during Relex a change or variation to what the PR arrangements would be for Defence? Is that right or have I misunderstood? Rear Adm. Smith-I do not believe I said that. At the beginning of Relex-I have to get the dates of the instruction-the first one that was produced inhibited significantly those who were authorised spokespeople for Relex. That subsequently has been changed. CHAIR-Can we walk our way through this carefully? The Defence Instructions (General), 8 August, was later specifically for Relex-correct any of this if it is wrong-varied in a way which significantly inhibited comment on that operation. Is that what- Rear Adm. Smith-It restricted significantly those that were authorised spokesmen, indeed. We needed authorisation from the minister's office to be able to speak about those things. CHAIR-The Defence Instructions (General), issued on 8 August, were in themselves a significant concentration of authority in the minister's office and at the senior levels of command for comment over what had previously applied, weren't they? Rear Adm. Smith-They certainly were more restrictive. That is correct. CHAIR-And so they were restricted further for Relex? CERTAIN MARITIME INCIDENT CMI 668 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Correct. CHAIR-And now they have been varied again and a much more open, communicative regime applies, doesn't it? Rear Adm. Smith-Yes, it is. It really takes us back to where we were before. CHAIR-Do you know the date or the timing of when the PR instruction relating to Relex was issued? Rear Adm. Smith-I mentioned to Senator Faulkner that we had a series of instructions that are part of the concept of operations for this activity. One of those was the public affairs plan that was promulgated by Admiral Ritchie's organisation. The date, I seem to recall, was about 3 September. But I would have to confirm that date for you. CHAIR-Is it possible for us to get a copy of that public affairs instruction for Relex? Rear Adm. Smith-I believe so. It has all been declassified in the interests of the inquiry. CHAIR-And that will show its date of operation? Rear Adm. Smith-Yes, it will. CHAIR-Thanks. Can you take me through what the normal operational requirements are for an operation like Relex? We are now in Relex phase II. You are the operational commander of this operation. What obligations are on you to report, analyse or synthesise the operation? Perhaps I should put that more directly. When Relex changed from Relex to Relex II, would you have reported what you had done as the operational commander up to that point to deliver on your orders relating to Relex? Rear Adm. Smith-I am not sure I am- CHAIR-Perhaps I am not putting it-in my civilian way-quite right. When you were put in charge of Relex, you were given orders as to what this operation was to be about. Rear Adm. Smith-Yes, that is correct. CHAIR-And it was your job then to take those orders and implement them? Rear Adm. Smith-That is correct. CHAIR-Relex ended and Relex II started. Does that mean you, at that point, report back to your commander saying, `This was the mission I was given. This is the mission as it has been accomplished.' Is that the normal procedure? Rear Adm. Smith-Yes, it is. But the arrangements under Relex II have not changed at all in terms of what were doing under the first one. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 669 CHAIR-I have in mind that here is an order to you. You go out and discharge the order and come back and report, `Mission accomplished,' or some such thing. Rear Adm. Smith-I see. No, I have not had to do that because the mission is ongoing. CHAIR-At any point during this mission, if the character of the task appears to have changed from how it was originally conceived, do you analyse or report what alteration there may be in operational necessities because of those changes? Rear Adm. Smith-That is part of my responsibility to assess the operation as it has been unfolding. If there has been a change of circumstances which require me to obtain clearance to operate in a different way or to adjust some element of the operation then I have a responsibility to seek that waiver or change, and that is what we would do. CHAIR-Have you had any cause to do such a thing? Rear Adm. Smith-Certainly in the transition from Relex to Relex I, I have not had occasion to do that. I do not recall having to ask for any adjustments and, indeed, most of the adjustments have been driven down from the top. CHAIR-Operation Relex has changed in character, but because of further refinement of orders given over those that were initially given? Rear Adm. Smith-Operation Relex has evolved. As each of these incidents has occurred, we have adjusted the way we have done business in certain ways and the current arrangement reflects our experience up until SIEV12 as modified by some of the things that you are aware of, in terms of public affairs and things like that. Senator FAULKNER-All the policy changes should be picked up in that question on notice that I asked you. Rear Adm. Smith-Yes, they should. CHAIR-My question is that too, but I am glad Senator Faulkner has saved me a bit of time and reminded me of that. As the commanding officer do you routinely report to your superiors about how things are going-a monitoring report, the positions so far and that sort of thing? Rear Adm. Smith-I do that every day. CHAIR-Every day? Rear Adm. Smith-That is correct. CHAIR-But you don't at the end of each week, each month or after a significant incident file a particular report saying, `Fellows, things have changed a bit. You ought to know these things'? CERTAIN MARITIME INCIDENT CMI 670 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Not up the chain, but down within the forces under my command we do assess that sort of information. The JTF commander and I regularly communicate on those sorts of issues. If there has been something that we have learnt, if there has been something that once we have put it all together that gives us a better picture of what we have been through, we then modify our operating procedures to reflect that experience. CHAIR-All of this focus by you and by your superiors is about delivering the effectiveness for Operation Relex, which is `to enforce and intercept any illegal entry into Australian wa- ters'-I think that is how you describe it-and about operational concerns, is it not? Rear Adm. Smith-Yes, it is. CHAIR-We have what has been called the Titheridge minute here. It was not Air Vice Marshal Titheridge who actually ordered you to do the work to compile this, was it? I thought it was Vice Admiral Shackleton. Rear Adm. Smith-It was Vice Admiral Shackleton; that is correct. CHAIR-He gave you specific instructions as to what you were to do? Rear Adm. Smith-That is correct. CHAIR-There was not a position in which you could discriminate and say, `I do not want to do those things. I would like to do some other things'? Rear Adm. Smith-It is not normally career enhancing to do that. CHAIR-No. This might occur in politics, but with the chain of command and for sensible and very good historic reasons, people need to give clear and precise orders and expect those clear and precise orders to be carried out. That is what you did? Rear Adm. Smith-That is exactly right. CHAIR-Yes. Does what has become known as the Titheridge report have any Defence purpose? Rear Adm. Smith-Only in the sense that I was asked to compile that sort of information and report to Vice Admiral Shackleton on those facts and that is what I did. CHAIR-It is a report seeking information about particular incidents and not about other incidents that may have occurred. What is notable, for example, is that it does not require you to report heroic action by Navy personnel in managing what is a sensitive and difficult situation. Rear Adm. Smith-That is true. CHAIR-It does not require you to do that. For example, it does not require you to report the actions of that able seaman on the Adelaide who, at some risk to her personal safety, jumped in CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 671 and rescued a woman from drowning, or being swept under the propellers of the ship, with a baby in her arms? Rear Adm. Smith-No, I was not asked to report on those things. CHAIR-It does not ask you to report a range of things that might have demonstrated, for public relations reasons, how capable, professional and expert the Navy had been in managing its responsibilities so that the public can be aware of the professionalism of the service, does it? Rear Adm. Smith-No, it was a report specifically targeted around a certain set of circumstances. I might add, Senator, that some of the things that you are referring to are sometimes things that I am asked to report on separately as well. It is not uncommon to be tasked to produce that sort of information. CHAIR-I will put it in a question on notice to you, but I do think it is of public interest and of material point to this inquiry to know how well the Navy has conducted itself, because the evidence I have heard since this inquiry commenced is that the Navy has conducted itself in an extremely professional manner. I think that is something that people should know about. But nothing that you have been asked to do has included collating examples of that professionalism for public release. Rear Adm. Smith-That is correct, Senator, but I would welcome the opportunity to be able to do that. Senator FAULKNER-But, Admiral, in the case we are talking about, you were asked to compile that material by the Chief of Navy, Admiral Shackleton. I think that is correct. Rear Adm. Smith-That is correct. Senator FAULKNER-In relation to the material we have received today under your signature, that is an initiative you took yourself. Rear Adm. Smith-That is correct. Senator FAULKNER-It might be, in that context, that it is interesting to the committee to understand whether you discussed that at all with the Chief of Navy or any other superior officer. Rear Adm. Smith-No, I did not. I reflected on the line of questioning that I experienced last time we were here together. I was sensitive, I guess, to an operating reporting regime, which I have total confidence in, and I got the impression that that confidence was not shared by the committee-rightly or wrongly, that was the way I interpreted it-and that clearly more information was needed. As I briefed the committee at the beginning of this evening's procedings, it was not our SOP-standard operating procedure-to get witness statements but I felt that in the circumstances, and in respect of the committee, for you to fully understand what actually has happened in the course of all of these events that was the right thing to do, and that is why I did it. CERTAIN MARITIME INCIDENT CMI 672 SENATE-Select Thursday, 11 April 2002 Senator FAULKNER-That is fair enough. But you did not discuss this with anyone outside Maritime Headquarters? You took this action yourself? Rear Adm. Smith-I took this action myself but I did advise the CDF today that I had done so. I did that through our task force so he was aware that I had had these statements compiled and that I was going to present them. Senator FAULKNER-Could you define `our task force' for me please? Rear Adm. Smith-Rear Admiral Gates, who you have met, who is coordinating Defence's participation in this- Senator FAULKNER-Is it a task force around the inquiry? Rear Adm. Smith-Yes, that is correct-the inquiry task force. Senator FAULKNER-There are so many task forces, Admiral, that it is always best to be definitive about them. Rear Adm. Smith-I used to be very clear about task forces, Senator! It is operations. CHAIR-To follow on from Senator Faulkner, the point is that the material you have provided us today is, as you have said in your opening statement tonight, to fill the gaps about concerns that had been created in your mind by some of the questioning of the committee.? Rear Adm. Smith-That is correct. CHAIR-And to provide more specific material to the committee about those things? Rear Adm. Smith-That is correct, Senator. CHAIR-I want to go back to what is being called the `Titheridge report' or the `Titheridge minute'. Does that have any naval operational purpose? Rear Adm. Smith-It is a report of a series of facts that have been called for by a higher authority. CHAIR-Yes, but it does not have any purpose as far as aiding your operation in the management of Operation Relex, does it? Rear Adm. Smith-No, it does not. Senator FAULKNER-In fact, the matters contained in it do not have any operational significance, do they? Rear Adm. Smith-They have operational significance in the fact that they are things we have had to deal with in the course of Op Relex. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 673 Senator FAULKNER-At the time that they occurred, were they passed up the chain of command? Rear Adm. Smith-Yes, they were. Senator FAULKNER-All of them? Rear Adm. Smith-Yes, they were. CHAIR-When were you asked by Admiral Shackleton to compile this report? Rear Adm. Smith-I was asked on 20 February. Senator FAULKNER-Were those matters contained in the Titheridge report that was passed up the chain of command passed to ministers or the task force? Rear Adm. Smith-I do not know. It is addressed to the minister, so it clearly- Senator FAULKNER-No, I am talking about when they happened. Rear Adm. Smith-Sorry, I beg your pardon. I cannot comment on that. The information was passed by message to the Strategic Command Division. What happened to it after that I do not know. Senator FAULKNER-I am interested-and I have no objection to the terminology `pattern of behaviour'; it is as good a use of words as any to describe the circumstances and it is a reasonably economical use of the English language, so I will go along with that-that the pattern of behaviour seems to matter an awful lot on the first weekend of the election campaign when Mr Costello is about to go on a Sunday television program and for the rest of it does not appear to have a great deal of significance at all. At the end of the day, it does not have any tactical or strategic significance in terms of your responsibilities. In military, strategic terms, it does not really matter, does it? Rear Adm. Smith-I do not think I will comment on that, Senator. CHAIR-Can I put this question in another way: would you have compiled this report if you were not asked to do so? Rear Adm. Smith-Probably not. CHAIR-Are you aware that on 20 February the prospects of this inquiry were well known? Rear Adm. Smith-Yes, I am aware of that. CHAIR-And that it would focus on the `children overboard' affair, as it is popularly known? CERTAIN MARITIME INCIDENT CMI 674 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Yes, I was aware of that. CHAIR-Did it occur to you that the Navy might be being asked to do research to defend a government position in a political debate rather than an operational position in carrying out its responsibilities under Relex? Rear Adm. Smith-I think that is a bit of an unfair question, Senator. I was responding to a direction from my chief of service to provide him with some information, and that is what I did. Senator FAULKNER-It would be reasonable, though, for the committee to note that, on the date in question-20 February-the Senate estimates committee dealt with estimates for Defence. Senator BRANDIS-Admiral, in preparing your report, were you placed under any form of political pressure whatsoever? Rear Adm. Smith-Not at all. Senator FAULKNER-Were you aware that the report was produced for the purposes of this Senate select committee? Rear Adm. Smith-I made an assumption that that was its purpose. Senator FAULKNER-Were you told by anyone that that was its purpose? Rear Adm. Smith-No, I was not. CHAIR-I think I have gone about as far as I can go with you on that line of questioning, Admiral. Obviously, this is a matter of some interest to me. One of the items of evidence you gave, as I recall, was that the crew of the SIEVs were to be returned to Indonesia or were returned to Indonesia. Do you recall that? Rear Adm. Smith-Yes, I remember that. CHAIR-Can you refresh my mind as to what that was exactly? Rear Adm. Smith-As Relex was unfolding, I think SIEV5 was the first occasion when policy direction was relayed to me that, rather than transportation of the UAs to a country to be nominated by the government, I was to attempt the return of this vessel to Indonesia. From SIEV5 onwards that was an extant requirement for us. CHAIR-Obviously that is the optimum outcome, to get the vessel to go back to whence it came. Once the crew and the refugees were on board a naval vessel-their vessel, or whatever their means of getting there, having sunk-what happened to the crew then? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 675 Rear Adm. Smith-Once these people were on board the ship, in the cases when we had to do that, they were eventually landed at Christmas Island and the UAs and the crew were handed over to the Australian Federal Police. CHAIR-Do you know if the crew were returned to Indonesia? Rear Adm. Smith-I do not know what has happened to the crew of any of the SIEVs that were landed at Christmas Island. It is not our business. CHAIR-No. Were you kept informed through that task force Ms Halton chaired-whatever its proper name was-about its broad considerations or were you not privy to those? Rear Adm. Smith-I was not privy to the deliberations of the IDC, other than some of the outcomes that were then relayed through the chain of command. CHAIR-According to the Department of Immigration and Multicultural and Indigenous Affairs in its intelligence report 52 of 2001, the prices paid to smugglers and agents varied from $US1,200 to $US3,500-this is in relation to SIEV4-and there were 219 passengers on SIEV4, meaning that the gross income to the people smugglers of SIEV4 would be somewhere between half a million and 1½ million Australian dollars. Were you aware of that? Rear Adm. Smith-I may have been. I do not recall that particular report. CHAIR-Probably, if you take the median point, SIEV4 was worth $1 million to the people smugglers as gross income. Rear Adm. Smith-I would have to do accept that. CHAIR-That is according to DIMA. What the net income was I do not know, but people smuggling was a handsome profit-making affair. Item (c) of our terms of reference is almost entirely taken up by the so-called Titheridge minute, and you have been subject, might I say, to fairly detailed questioning and reading from the documentation. I just want to a mark the spot in the Hansard. You were not subject to any questioning from any member of this committee in relation to what I would call the `Kevin hypothesis'. Rear Adm. Smith-I think Senator Bartlett did address that. CHAIR-Senator Bartlett asked questions about that? Okay. Senator FAULKNER-Were you informed prior to your appearance at the table that you were likely to be asked questions about what was contained in the Titheridge minute? Rear Adm. Smith-No, I was not. CERTAIN MARITIME INCIDENT CMI 676 SENATE-Select Thursday, 11 April 2002 CHAIR-My understanding about what I have called the Kevin hypothesis is that that hypothesis leaves a big question mark over ethical conduct for the Navy. Do you have anything to say about that at this point? Are you aware of the hypothesis? Rear Adm. Smith-I am certainly aware of it. I have a letter to the editor of the Canberra Times appearing in the paper tomorrow commenting on a couple of letters that have been talking about this very issue. In my response to Senator Bartlett I made the point that I took great offence, on behalf of the Navy, at the suggestion that has been made in that context. We are a professional navy, we are professional mariners. It could only have been written by somebody who does not understand how seriously professional mariners would take their responsibilities for the safety of life at sea. They clearly did not understand just how seriously we do take those things. In that particular instance, our nearest ship to where that boat sank was 150 miles away. We had no knowledge of the boat having sailed. The first that we were aware that this vessel had sailed from Indonesia was when we were contacted by the search and rescue organisation here in Canberra, on 22 October, when they advised us that this vessel was overdue and it was feared it had foundered in the Sunda Strait area. None of our surveillance that we had operating- aircraft or ships-had detected this vessel. Senator BRANDIS-Admiral, don't be too polite! The Kevin hypothesis, as it has been called, is absolute rubbish, isn't it? Rear Adm. Smith-As I said, I find it quite insulting and offensive to the Navy. Senator BARTLETT-How did Search and Rescue know it was overdue if they did not know it had left? Rear Adm. Smith-They had advice from Coastwatch Canberra to say that the vessel believed to have sailed on or at the 19th for Christmas Island was overdue. Where they got that information from is a bit sensitive, I think; it is intelligence. Senator FAULKNER-When did you become aware that Admiral Barrie was going to make his announcement following the senior leadership group discussion on 27 February? Rear Adm. Smith-I learnt it the same time as all the other members of the senior leadership group: that very morning, when we were all gathered in this building. Senator FAULKNER-So Admiral Barrie addressed the senior leadership group and indicated what he planned to do, but you were not aware of it before he said that? Rear Adm. Smith-I was not aware of it before that, no. CHAIR-Do you have anything further to add about that incident? I have one last question. Rear Adm. Smith-Sorry, about what? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 677 CHAIR-About the so-called Kevin hypothesis. I think you have covered it, but I wanted to give you the opportunity. Rear Adm. Smith-I think I have said enough on that. We were nowhere near it; we did not know it was there. As I said, I find the assertion quite offensive to the Navy. The Navy, as a professional organisation, just would not have allowed that to happen, if we could have done something about it. CHAIR-If you were there, what would you have done? Rear Adm. Smith-It is very clear to our commanding officers that if we were in close proximity to where that was, and we knew that it was happening-whether it was in Indonesian territorial waters or in international waters-we would have gone to the rescue of those people. CHAIR-That is because they would be in distress and you would have an obligation on you to do so and because of your humane instinct to do so in any case. Rear Adm. Smith-That is absolutely correct. Senator FAULKNER-But have you given consideration, Admiral, that misleading official statements surrounding the `children overboard' issue actually make it harder to defend the Royal Australian Navy in the case of the Kevin hypothesis? Senator BRANDIS-That is a preposterous thing to say, Senator Faulkner! Rear Adm. Smith-I would not accept that, Senator Faulkner. I would have to say that, in my interaction with the Australian community, the Australian community seems very much attuned to the professionalism of the Royal Australian Navy and the responsible way in which we have done this business. I have no doubt that the majority of them understand exactly what we have done. Senator FAULKNER-I think you are right about community attitudes about the professionalism of the Navy, but my question goes to the public notoriety of this issue, which is not directed at Navy. I think you are well aware of where I am directing my criticism; I do not think I have to even explain that. The public notoriety of this issue inevitably has an effect, and other witnesses have said that. I think CDF, in the Senate estimates, indicated that there is a cost in relation to the public standing of Defence in the broad, if you like, because of this particular issue. These are matters of opinion-I do not want to put words into the CDF's mouth-but my point goes to the behaviour of the government and whether that has an effect in relation to the capacity to deal with the Kevin hypothesis. I do not think that is an outlandish link to draw. I think there is a relationship there and I think that many commentators in the public arena have said that. You may care to comment; you may prefer not to. Rear Adm. Smith-I prefer not to comment. CERTAIN MARITIME INCIDENT CMI 678 SENATE-Select Thursday, 11 April 2002 CHAIR-I am going to go to another subject, which is my last subject. I want to get this clear-it is very clear to me but it seems to have been lost in the murk. If a child is thrown overboard, you would rescue it; if an adult jumps overboard you would rescue them. If you are a refugee, you do not need to throw a child overboard to cause the Navy to rescue someone overboard-an adult would equally serve that purpose if you were trying to create an incident such as that, wouldn't it? Rear Adm. Smith-Your assumption is correct in the sense that it would not matter who went over the side, we would have a responsibility to rescue them. I guess you would need to talk to these individuals to see what their motives are for what they do. We certainly interpret what they do as applying pressure to our people. CHAIR-At the level of threat. But at the level of actuality an adult jumping into the sea has the same effect in terms of what action it evokes from you. Rear Adm. Smith-It has the same effect in what action it takes from us. It has less of an impact in the sense that an adult is able to look after themselves and a child is a child and that appeals to a certain part of our character that is different. CHAIR-Yes. I am not in any way trying to excuse it. But an adult from the Middle East may not be an efficient swimmer. That may mean that they are they are at risk in any case-a lot of them. Senator BRANDIS-How does he know what the swimming ability of people from the Middle East is? CHAIR-Because they do not have access. Senator FAULKNER-I think you are right, Admiral. CHAIR-It is one of the cultural differences, for God's sake. Senator FAULKNER-I am sure the perceptions in the Navy would be the same as perceptions outside the Navy. I am not in the Navy but my perception is that there is difference between a suggestion that a child is thrown in the water and an adult who takes action of their own volition. Surely there is a difference; that is the point you are making to us. Rear Adm. Smith-Yes. Senator FAULKNER-I do not think the views in the Navy would be any different to community views on that-it is a natural and totally understandable and totally proper and correct human reaction. CHAIR-I have no further questions of you, Admiral, thank you very much. Senator JACINTA COLLINS-I have a couple of questions. CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 679 Senator FAULKNER-You do not agree, Senator Mason? Senator MASON-No. They both require the Navy to act. Senator FAULKNER-So you agree with me. Senator MASON-I agree with what the Admiral said. Senator FAULKNER-In this case you are right. CHAIR-Order! It is a bit late and we are well over time now. Senator Collins, if you have got a question please make it quick. Senator JACINTA COLLINS-We heard earlier from Brigadier Silverstone about his understanding of the time that he made the call to Air Vice Marshal Titheridge. Rear Adm. Smith-Yes. Senator JACINTA COLLINS-I think he indicated at the time that you might have some additional information for us on that point. Rear Adm. Smith-I am not sure it is additional information-I think you might have asked me this question last time. He was instructed to call Air Vice Marshal Titheridge at 7.30 Darwin time-eight o'clock Eastern Standard Time. He rang me at about that time to advise me that he had done as directed and what information he had relayed to Air Vice Marshal Titheridge. I then rang Admiral Richie at 8.02 that morning and that is why I am saying it was about 7.58 to 8.02-that sort of time-when Silverstone rang me. Senator JACINTA COLLINS-I am sorry, we covered this on the last occasion, did we? Rear Adm. Smith-Yes that is right. Senator JACINTA COLLINS-It is a case of information overload. Senator FAULKNER-As a consequence of the publication of the Bryant and Powell reports, have you had any further discussion about the obvious conflict of evidence or conflict of views between yourself and Admiral Ritchie on the one hand and Air Vice Marshal Titheridge on the other? Rear Adm. Smith-I am not sure what you mean by conflict of views between Admiral Ritchie and me. Senator FAULKNER-The fact that the Air Vice Marshal says that he did not become aware of doubts of this issue until late November. CERTAIN MARITIME INCIDENT CMI 680 SENATE-Select Thursday, 11 April 2002 Rear Adm. Smith-Admiral Ritchie and I have discussed that and I advised Admiral Ritchie that I had the distinct recollection of a telephone communication with Air Vice Marshal Titheridge on 17 October. Senator FAULKNER-I knew you had discussed it with Admiral Ritchie, but I was asking whether you have had a discussion with Air Vice Marshal Titheridge because, as a result of the publication of the two reports, that conflict of view or conflict of evidence-call it what you will-would be well known. Rear Adm. Smith-No, I have not discussed it with him. Senator JACINTA COLLINS-My final question is in relation to- CHAIR-Please make this the final question. Senator JACINTA COLLINS-I asked this earlier, but you did not get to respond to it, Rear Admiral Smith. My final question is in relation to this table of yours, in which you still have, regarding the SIEV9, a reference in the `Threat to a child' column of `X55 (Strangulation)'. Rear Adm. Smith-Yes, I do. Senator JACINTA COLLINS-Is there a correction you would like to make there? Rear Adm. Smith-That was the information that I had available to me when I compiled this particular chart, and I am not sure I have any further information that would necessarily say to us that that is incorrect. Senator JACINTA COLLINS-I am sorry; I must have misunderstood what you had indicated earlier. Rear Adm. Smith-What I was suggesting earlier is that, some of the statements-and that particular statement of the lance corporal-would indicate that there may be another explanation for what was perceived to have occurred there. The ship's logs, and things that record information as it was happening at the time, do contain that claim that there was an attempt to strangle. Senator JACINTA COLLINS-I see. So, in that sense, this table depicts perceptions rather than, necessarily, facts. Rear Adm. Smith-This table represents the facts as recorded on board the ship, gleaned from communications and so forth. The statement would give a different spin on this particular incident. Senator JACINTA COLLINS-Right. So you have not reached a conclusion? CERTAIN MARITIME INCIDENT Thursday, 11 April 2002 SENATE-Select CMI 681 CHAIR-Can we leave it there? Thank you very much, Rear Admiral Smith. It has been a long and, I hope, not too arduous- Senator BRANDIS-Was it longer than for Commander Banks? CHAIR-I do not know- Senator BRANDIS-It was nine hours for Banks. CHAIR-I have given up record keeping. On behalf of the committee, we have really appreciated your corporation; thank you very much. Before I adjourn the committee, members of the committee would have seen a copy of the letter from the Clerk of the House dealing with this debate between the clerks. There is no reason why that should not be released. Senator BRANDIS-Before Rear Admiral Smith leaves the table, can I take it that these additional statements which he produced this evening will be subject to the same protocol as the earlier statements-that is, once they are reviewed by the Navy for security and privacy purposes, the Navy has no objection to them then being released? Rear Adm. Smith-That is my understanding of the process. CHAIR-They have not been through that process yet. Again, thank you very much. We are adjourned until 9 a.m. tomorrow, when we commence with the much deferred Air Vice Marshal Titheridge. Committee adjourned at 11.18 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident FRIDAY, 12 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Friday, 12 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BARRIE, Admiral Christopher Alexander, Chief of the Defence Force, Department of Defence........738 TITHERIDGE, Air Vice Marshal Alan William, Head Strategic Command, Department of Defence...........................................................................................................................................................683 Friday, 12 April 2002 SENATE-Select CMI 683 Committee met at 9.05 a.m. TITHERIDGE, Air Vice Marshal Alan William, Head Strategic Command, Department of Defence CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from the secretariat staff. Today's hearing, as has been our practice, is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 4 p.m. today. We shall attempt to deal as expeditiously as possible with witnesses. I urge witnesses to be concise in their answers and senators to keep their questions highly targeted. The committee has agreed that today it will hear from Air Vice Marshal Titheridge and Admiral Barrie. Witnesses are reminded that evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person, and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, such officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. Witnesses will be asked to make an oath or affirmation. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. However, counsel has no right to address the committee, nor will the committee address questions to counsel. Before we start, the committee has allowed until 11.30 this morning for Air Vice Marshal Titheridge. I think you need to go at or around that time, Air Vice Marshal. We have promised, as best we can, to accommodate the needs of Admiral Barrie, who will follow you immediately. So that suggests that we should be prompt and efficient in the dispatch of business this morning. I will keep in mind a balance in terms of the needs of the committee. Two and half hours suggests approximately 50 minutes to government senators, 50 minutes to opposition senators and 30 minutes to the Democrats, or some such rough order like that. I hope no-one needs to take up their full amount of time, so we can commence promptly with Admiral Barrie. Welcome, Air Vice Marshal. It is our practice to invite you to make an opening statement. If you have a spare copy of your statement we will circulate that to the committee, which will save CERTAIN MARITIME INCIDENT CMI 684 SENATE-Select Friday, 12 April 2002 a bit of time. If you do not have a spare copy, we will wait until you have completed your statement. Air Vice Marshal Titheridge-I do have a spare copy and I shall forward that to the com- mittee. It is only a short statement. CHAIR-Please proceed. Air Vice Marshal Titheridge-I am Head of Strategic Command of Australian Defence Headquarters. Strategic Command is a relatively small staff division located in the strategic policy group in Defence. `Command' is a misnomer; my division does not have a command function. Essentially, I am the Chief of Defence Force's staff officer for operations. My division is located within the strategic policy group to ensure operations are conducted within the context of the broader framework of the government's international policy. The division drafts orders for the Chief of Defence Force to direct planning, to assign forces and to execute operations. Many operations are under way simultaneously as the focus shifts across operations as requirements dictate but usually moving forward as activities are completed. We do not have the luxury of focusing on any one operation. The Department of the Prime Minister and Cabinet is the principal government coordinator responsible for unauthorised arrivals. Such coordination is implemented via an interdepartmental committee, normally chaired by an official from Prime Minister and Cabinet and occasionally by an official from Immigration. Defence is normally represented by me or by a senior member of my staff. In relation to SIEV4, Operation Relex had, by early October, been overtaken by the need to focus on planning for the Australian Defence Force's contribution to the war against terrorism. This curtailed my personal attendance at the unauthorised arrival management interdepartmental committee and I was increasingly represented by my senior staff. During October and November, I and my staff were extremely busy with many other operations and activities. This period coincided with the arrival of eight more suspected illegal entry vessels. Strategic Command provides a 24-hour watch-keeping function. If a watch-keeper receives advice that is considered to be urgent or sensitive, it is communicated rapidly to appropriate officials. This process is different from the normal method of transmitting information up the command chain. Sometimes this early advice may be passed to me, or to one of my senior staff, to pass to appropriate officials. On the other hand, since Strategic Command is not in the chain of command, operational information may not necessarily pass through me or my organisation. Commanders retain the right to speak directly to the Chief of Defence Force. Turning now to the issue of advice that children had been thrown overboard, I believe I received telephone advice direct from Brigadier Silverstone, Commander Northern Command, on Sunday, 7 October updating me on the events surrounding SIEV4. I believe I passed that information by telephone to the Chief of Defence Force, to Ms Halton-who was chairing the IDC at that time-and to ministerial staff. Verbal advice was the initial means of conveying that information. I now know, from previous evidence and reports, that Rear Admiral Ritchie had provided updated advice to the Chief of Defence Force and that later the Acting Chief of Defence Force had advised the minister. I saw no detailed evidence to change my initial view of the SIEV4 incident until about 25 November. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 685 It was on or about this date that the newspaper article implying that a document existed in Defence that refuted the `children overboard' claim was brought to my attention. This caused me to request my staff to locate any document that fitted that description. I was subsequently provided with a copy of a signal from HMAS Adelaide dated 10 October 2001. One of my staff was among those who received the initial photographs from HMAS Adelaide and was aware that the press photographs, in fact, showed unauthorised arrivals being rescued from the SIEV after it had sunk. My staff recognised this and brought it to the attention of Public Affairs and Corporate Communication, PACC. I had seen two other sets of photographs: a set of five from the sinking and a set of six taken of the unauthorised arrivals on the deck of HMAS Adelaide following the sinking. I had forwarded this latter set to Mr Scrafton in the minister's office to highlight the difficulties faced by the crew of Adelaide and to emphasise the need to get the unauthorised arrivals ashore at Christmas Island as soon as possible. On the morning of 10 October 2001, in what I believed to be a response to a request for in- formation from Mr Scrafton at the minister's office, my staff emailed a chronology of events to him and also to Prime Minister and Cabinet which concluded with the statement: There is no indication that children were thrown overboard. It is possible that this did occur in conjunction with other SUNCs jumping overboard. I became aware of this document and email as a part of my preparation to respond to the two investigations. A footnote with respect to a lack of evidence of the incident, while not ruling it out, aptly summarises the prevailing view among the staff in Strategic Command. There was nothing more to add from the information available to my staff at that time. At some stage during October, I also became aware of the video of the events of 7 October, which I have still not seen. In mid-October Mr Scrafton requested a copy of the video. This was not possible at the time, although I passed on advice given to me by Rear Admiral Ritchie that it was inconclusive-whether that was because of content or quality I am not sure. In early November the issue surfaced again and, at his request, arrangements were made for Mr Scrafton to view it in Sydney. In closing, I wish to emphasise the very significant increase in operational tempo in Strategic Command and the Australian Defence Force during the period of Operation Relex. This completes my opening statement. I thank the inquiry for the opportunity to present. CHAIR-Thank you. Senator BRANDIS-I want to take you, Admiral Titheridge, to that part of your statement in which you speak of having been given some information on the SIEV4 incident on the morning of 7 October and then passing it on. It is at the foot of page 3 of your statement. You say, `I believe I received telephone advice direct from Brigadier Silverstone, Commander Northern Command, on Sunday 7 October, updating me on the events surrounding SIEV4. I believe I passed that information by telephone to CDF, Ms Halton and ministerial staff.' I just want to focus narrowly on that sequence of events. How many telephone conversations did you have with Brigadier Silverstone on the morning of the 7th? Air Vice Marshal Titheridge-I only recall having one. CERTAIN MARITIME INCIDENT CMI 686 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-So your evidence is that you only had one-to the best of your recol- lection there was only one? Air Vice Marshal Titheridge-That is my evidence. Senator BRANDIS-And then did you convey what Silverstone had told you immediately or shortly after the finish of your conversation with Silverstone? Air Vice Marshal Titheridge-My recollection is, based on my telephone logs, that it was within 15 minutes or so, I suspect. Senator BRANDIS-You say in the statement you have just read that you passed that information to CDF, Halton and ministerial staff. When you say `ministerial staff', do you mean more than one telephone conversation or one telephone conversation to ministerial staff? Air Vice Marshal Titheridge-My telephone records show that I spoke to Mr Hendy, Mr Reith's chief of staff. Senator BRANDIS-So when you say `ministerial staff' you mean Hendy? Air Vice Marshal Titheridge-According to my telephone records, that is what they indicate. Senator BRANDIS-Do you have those telephone records there? Air Vice Marshal Titheridge-I do. Senator BRANDIS-May I see them? Air Vice Marshal Titheridge-I table here telephone records which cover 7 October. That is my mobile phone records of outgoing calls. Senator BRANDIS-And your evidence is that these calls were made from your mobile phone? Air Vice Marshal Titheridge-That is correct-those calls that I have showed you there were made from my mobile phone. Senator BRANDIS-These are only outgoing calls of course; there is no record here of incoming calls. Is that right? Air Vice Marshal Titheridge-They were only the outgoing calls, clearly. Senator BRANDIS-I will pass that back to you. Air Vice Marshal Titheridge-I have another copy. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 687 Senator BRANDIS-I assume, for the purposes of your evidence this morning, you have analysed those telephone numbers and established by reference to this record that indeed you made the three calls of which you have spoken-that is, to CDF, Halton and Hendy-by identi- fying their numbers on this print-out? Air Vice Marshal Titheridge-That is correct. Senator BRANDIS-So we can be quite certain of that-there were those three calls. Were they made in sequence-in other words, immediately one after another? Air Vice Marshal Titheridge-Close to it. The evidence is in front of you. Senator BRANDIS-And the first of them was made about 15 minutes after you had finished speaking to Silverstone? Air Vice Marshal Titheridge-That is what the record shows. I should add that I do not have a record of when Brigadier Silverstone rang. Senator BRANDIS-I will get to that. May I take it that, when you made these three calls, the point of the calls was to convey to the people whom you rang-CDF, Halton and Hendy- that which Silverstone had just told you? Air Vice Marshal Titheridge-That is correct. I should also add that I made a lot of calls that day. We will get to that. Senator BRANDIS-I can see that you did-but the purpose of those calls was to pass on what you had just been told by Silverstone? Air Vice Marshal Titheridge-That is my belief. Senator BRANDIS-Is it the best of your recollection? Air Vice Marshal Titheridge-It is my belief. It is the best of my recollection. Senator BRANDIS-That was the purpose for which you made the calls, wasn't it? Air Vice Marshal Titheridge-There could have been-for instance, in talking to CDF- another reason but to the best of my recollection it would have been about this particular incident. Senator BRANDIS-Do you think that, in each of those calls, you would have related to each of those three people what Silverstone had just told you a few minutes earlier? Air Vice Marshal Titheridge-That would be my belief, yes. Senator BRANDIS-Thank you. I want to get to the timing issue. Your evidence-and indeed Brigadier Silverstone's evidence-suggests only one telephone conversation between you and him that morning. May I ask the secretariat to show you a coloured photocopy of CERTAIN MARITIME INCIDENT CMI 688 SENATE-Select Friday, 12 April 2002 Brigadier Silverstone's diary note. Let me pause to say that we have heard some evidence of amendments by way of annotation by Brigadier Silverstone, which he has explained to the committee. I do not want to be delayed with them again. I am not going to ask you about those. What I am particularly interested in is the time. If you look two-thirds of the way down, at the beginning of the yellow highlighting on the left-hand side of the page, you will see some figures-720-followed by a mark, which we are told was an asterisk. Do you see that? Air Vice Marshal Titheridge-I do. Senator BRANDIS-On the photocopy, something has been cut off-and this is not controversial. In front of the seven there is another zero, so that, on the original, it reads `0720*'. Please read it that way. May I also tell you that it was Brigadier Silverstone's evidence, if I may paraphrase it, that what he wrote in that bottom-third of the page, subject to a couple of later amendments, was written down as he spoke to Banks. There are two relevant qualifications to that: first, his evidence was that the entry `0720*' was made by him three or four days afterwards and, second, the word `child' was inserted. It appears about five lines below the line on which `0720*' appears and is immediately above that curved line. It was written in by him not during but immediately after the telephone conversation with Banks. By `immediately after', I mean that he said it was straightaway, as soon as the conversation finished. And he has made a note-added on the date that it bears-at the foot of the page, amplifying the circumstances in which the word `child' was added. Do you see that? Air Vice Marshal Titheridge-I do. Senator BRANDIS-None of that is immediately relevant, but I do not want to be accused of not having presented this document to you fairly and with proper qualifications. I am really only interested in the time. We have heard Brigadier Silverstone's clear evidence as to what Banks told him during that telephone conversation, as is reflected in his diary note of it. Let me read you what he told us. I am reading from page 335 of the Hansard of this committee. I took him, as I have just taken you, to the figure `0720' and I said to him: Senator BRANDIS-That is a reference, in turn, to the figures and character on the left-hand margin: 0720*. Brig. Silverstone-That is correct. Senator BRANDIS-That is added in pen three or four days afterwards. Brig. Silverstone-That is correct. Senator BRANDIS-By what process did you estimate or arrive at the position that this conversation took place at 0720? Brig. Silverstone-Because it is my very clear recollection that I rang CO Adelaide-or he rang me-and we had a telephone conversation at 0720 in preparation for a phone call I was required to make to Air Vice Marshal Titheridge. That phone call was required to be made by 0730 India-kilo that morning. He goes on on the next page: Senator BRANDIS-As I understand your evidence, you have told us that you can establish with reasonable certainty the time of this conversation because it occurred shortly before a fixed point in time-that is, 0730 Darwin time-at which you had to ring Titheridge. Is that right? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 689 Brig. Silverstone-That is correct. Senator BRANDIS-Does that reflect your assessment that the conversation took not more than 10 minutes, perhaps a little less than that? Brig. Silverstone-The conversation took about a minute, Senator. Senator BRANDIS-So a few minutes elapsed between the completion of that conversation and when you rang Titheridge? Brig. Silverstone-Three or four minutes, because I rang Titheridge not at 7.30 but at about 7.28. You were in Canberra at the time, weren't you? Air Vice Marshal Titheridge-That is correct. Senator BRANDIS-And Silverstone was in Darwin. Air Vice Marshal Titheridge-I am assuming he was, yes. Of course he was. Senator BRANDIS-I do not think any of this is controversial; I am just trying to put all the little pieces together in the jigsaw puzzle, that is all. What was the time difference between Darwin and Canberra? Air Vice Marshal Titheridge-I would have to go back and check when daylight saving started. It is either half an hour or an hour and a half, but I am sure we can establish that by other means. CHAIR-I can tell you with some pain that it had started by that time. Air Vice Marshal Titheridge-Then the answer is an hour and a half. Thank you, Chairman. Senator BRANDIS-That is what I thought it was, an hour and a half. If it was an hour and a half, then 7.30 Darwin time would have been 9.00 Canberra time. Is that right? Air Vice Marshal Titheridge-Yes, Senator, I assume so. Senator BRANDIS-Can I take you now back to your mobile phone printed document. This document in the third column records, does it not, the local time at which the telephone call was made from the mobile phone? Air Vice Marshal Titheridge-That is my belief, yes. It looks that way. Senator BRANDIS-Going to 7 October, would you please identify for me the telephone numbers that you rang to speak to CDF, Ms Halton and Mr Hendy? Senator FAULKNER-I do not think that is very clever. I know what is in these characters. CERTAIN MARITIME INCIDENT CMI 690 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-I am sorry, I withdraw the question. I understand the point. That is quite a proper concern. CHAIR-I think we all agree on this, that we are not going to release this document publicly. Senator BRANDIS-No. Can we do it by reference to the serial number in the first column? Air Vice Marshal Titheridge-I can certainly do that, if you are not going to release the document. Senator BRANDIS-Just tell me the serial numbers, by reference to the first column, of the three telephone conversations that you have made. Air Vice Marshal Titheridge-My belief is that the relevant calls I made were the serial numbers 98 and 99, which you note are to the same number, 100 and then 101. Senator BRANDIS-Do you remember who telephone calls 98 and 99 were to? Air Vice Marshal Titheridge-That would have been to the then chair of the interdepartmental committee in Prime Minister and Cabinet, Ms Halton. Senator BRANDIS-The second call succeeded, did it? Air Vice Marshal Titheridge-That is what the record shows. Senator BRANDIS-The following call was made to CDF or to Hendy? Air Vice Marshal Titheridge-To Mr Hendy. Senator BRANDIS-And the next call in the sequence-101-was made then to CDF. Is that right? Air Vice Marshal Titheridge-That is the way it comes out on the record. Senator BRANDIS-This sequence of telephone calls commences at 0917 Canberra time. The last in the sequence-call serial number 101-was made at 0925 Canberra time. That, I might say, is completely consistent with your evidence that the calls were made about 15 minutes after you spoke to Silverstone and is completely consistent with his notation of the time at which he spoke to Banks and his recollection of the time at which he then spoke to you, allowing for the 1½ hour time difference. Do you agree? Air Vice Marshal Titheridge-I should add at this stage that I have used this telephone record as my basis for my belief when the calls were made. Senator BRANDIS-Of course you would; it is an empirically verifiable basis. The point I am making to you is that Silverstone's recollection is that he spoke to you at 0728 Darwin time, which is 0858 Canberra time. Your recollection is that you rang the three people to whom you CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 691 conveyed what he had told you in a series of telephone conversations that began about 15 min- utes after you had finished speaking to Silverstone and, as indeed the telephone log verifies, the first of them was made at 0917. The point I am making to you is that this fits perfectly together and does support Brigadier Silverstone's recollection of the time at which he rang you and the time at which he spoke to Commander Banks. Do you agree? Air Vice Marshal Titheridge-To the best of my knowledge. All I can do is look at the calls I made and infer that they were about that particular issue. Senator BRANDIS-Of course. None of this is in any way a criticism. I am just trying to put together the pieces in the jigsaw puzzle. Perhaps I have already asked you this: as well as you can recall, what you passed on to CDF, Halton and Hendy was what Silverstone had told you? Air Vice Marshal Titheridge-I would have to say that I do not recollect specifically what I was told, but my belief is that I would have passed on more or less what Brigadier Silverstone told me. Senator BRANDIS-Ms Halton had provided a statement to Jennifer Bryant for the purpose of Jennifer Bryant's report. May I read a sentence to you from document No. 28 of the statements: Ms Halton recalled receiving a telephone call from Air Vice Marshal Titheridge on the morning of 7 October 2001- the telephone records do seem to indicate there was only one call, so there cannot be any ambiguity about which call it was- in which he advised that children had been thrown overboard. That is what Ms Halton said. Do you dispute her recollection of what you told her? Air Vice Marshal Titheridge-I would have told Ms Halton what Brigadier Silverstone told me, which would have been an update on the events of SIEV4, including that piece of information. Senator BRANDIS-So, if she remembers your saying that, you do not dispute that that is what you would have said? Air Vice Marshal Titheridge-No, I do not. Senator BRANDIS-And, if you did say that, it could only have been because that was what Silverstone told you? Air Vice Marshal Titheridge-I would have passed on and I would probably have told her-in fact, I would have told her-that we have had this report from Brigadier Silverstone that these certain things had happened with SIEV4 which included this allegation. Senator FERGUSON-Air Vice Marshal Titheridge, I want to ask you a couple of questions relating to that morning, because Senator Brandis has already introduced the evidence that Ms CERTAIN MARITIME INCIDENT CMI 692 SENATE-Select Friday, 12 April 2002 Halton has given to that inquiry. All of these events took place after nine o'clock in the morn- ing. Can you remember what you did later on that day? Air Vice Marshal Titheridge-In the afternoon, I went to the Canberra Cup. Senator FERGUSON-Not until the afternoon? Air Vice Marshal Titheridge-Not until the afternoon. Senator FERGUSON-Can you remember whether or not, when you were at the races, the fact that there had been a report of children being thrown overboard became a topic of conversation? It would appear so from the evidence provided by Ms Halton. Air Vice Marshal Titheridge-I do not have any recollection of the events of that day, apart from what the telephone records have jogged from my memory, so I cannot help you there. Senator FERGUSON-You do not remember speaking, for instance, to Mr Alan Williams about the incident? Air Vice Marshal Titheridge-Not specifically, but it is quite likely. He was there at the same time. Senator FERGUSON-Ms Halton's statement provided to Ms Bryant in December said: Ms Halton recalled that she had later been told by Alan Williams- this was later, after she had received the call from you- from Qantas that he had been with Air Vice Marshal Titheridge on the morning of 7 October and that Williams recalled Titheridge saying to him at the time that children had been thrown overboard. Have you any reason to dispute that Ms Halton's recollection would be correct? Air Vice Marshal Titheridge-I cannot help you. I have no recollection of whom I spoke to about what, so I really cannot confirm or deny. Senator FERGUSON-So, even if you have no clear recollections of what you said that day, you do not dispute Ms Halton's or other people's clear recollections of what you might have said to them? Air Vice Marshal Titheridge-All I will say is that I passed on to Ms Halton what Brigadier Silverstone told me, which included the allegation that children were thrown overboard. Senator MASON-Air Vice Marshal Titheridge, I have a couple of questions about the chain of command and the sending of information up the chain of command from the ships in- volved in Operation Relex. We have heard evidence from Brigadier Silverstone, Rear Admiral Smith and Rear Admiral Ritchie that the chain of command-whether it is HMAS Adelaide, HMAS Bendigo or whatever-works like this: the commander of a vessel relays information to CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 693 Brigadier Silverstone, and that information is then relayed to Rear Admiral Smith and then to Rear Admiral Ritchie. Rear Admiral Smith gave evidence before this committee last night that he received information, then made a `synopsis' of a particular SIEV incident and sent it to you. I think it is right to say that he copied that information to you. He said that that information was fairly specific. In the example I put to him last night, with respect to SIEV7, the synopsis in- cluded information that a child was dropped in the water, there were threats to throw children in the water, there was threatening or offensive behaviour, there were threats of suicide or self- harm, there was evidence of sabotage or fire, there was evidence of actual and threatened resis- tance against boarding parties, and there were other incidents. Is that correct? Air Vice Marshal Titheridge-I would have passed on the information that Rear Admiral Smith passed to me. I would have to have a look at it to see what was in it to remind myself, but you have obviously got a copy of it. Senator MASON-You would pass that on to whom? Air Vice Marshal Titheridge-My recollection of that summary of incidents is that Chief of Navy had, I believe, been asked to provide that information-I forget the actual circumstances; you would need to ask him that question-and that he suggested we should then pass that on to the minister's staff. So I think we put together a ministerial brief. Senator MASON-Did you in any way change the synopsis that Rear Admiral Smith gave to you? Did you vet it or change it in any way? Air Vice Marshal Titheridge-I would not usually do so, if it is in the right format. Senator MASON-So you sent that synopsis to the Chief of Navy? Air Vice Marshal Titheridge-I would have to check my records there. Senator MASON-Could you check for us the information sent to you by Rear Admiral Smith and Rear Admiral Ritchie, as to where that information went after it left you-where you sent it. Air Vice Marshal Titheridge-We can probably do that straightaway. Senator MASON-Can I explain the context of the question. There are, as you know, a series of SIEV incidents-12 of them. This inquiry deals primarily with SIEV4, but there were many more serious SIEV incidents subsequent to SIEV4-in particular, SIEV7, SIEV9, SIEV10 and SIEV12. These incidents, with the partial exception of SIEV10, were not made known to the Australian public. This entire inquiry is about the government having misled the Australian public- Senator BRANDIS-Allegedly. Senator MASON-allegedly having misled the Australian public. Yet all of this information was passed up the chain about very serious incidents, including children being dropped CERTAIN MARITIME INCIDENT CMI 694 SENATE-Select Friday, 12 April 2002 overboard, and none of that information was made available to the public before an election. I just want to know why. Air Vice Marshal Titheridge-That is a question I cannot help you with. I can tell you who the information went to, but I cannot answer the second part of your question. Senator MASON-Can you tell the committee that? Air Vice Marshal Titheridge-It would seem, from the piece of paper I have got here, that we were sending situation reports-probably almost daily, from what I seem to recall-to a range of people, including many people in Defence and in other departments. I can read them out. Senator MASON-Please do. Air Vice Marshal Titheridge-The parliamentary secretary; Prime Minister and Cabinet; the CDF secretary; VCDF; CN-Chief of Navy; Chief of Air Force; Chief of Army; Deputy Secretary, Strategic Policy; First Assistant Secretary, International Policy; Commander Australian Theatre; Commander of Joint Logistics; Head of Public Affairs and Corporate Communication; Deputy Secretary, Corporate Services; Deputy Secretary, Intelligence and Security; and the Head of Preparedness, Guidance and Analysis. Senator MASON-All the information, with that level of specificity that I just referred to- involving threats to children, threatening or offensive behaviour, threats of suicide and so forth-was relayed to all of those people. Is that correct? Air Vice Marshal Titheridge-I would have to go through each of the sit reps to see what was in them. I will not say that we are perfect. We tried to pass on as much information as we could. Senator MASON-Could you follow that up on notice. I would just like to know what information on all of those SIEV incidents subsequent to SIEV4 was relayed to all of those people that you mentioned. Air Vice Marshal Titheridge-We will seek the minister's clearance to provide that. Senator MASON-Because, if all of that information was passed up the chain, it makes a mockery of the claim that this SIEV4 incident was used for political purposes. There are so many more serious incidents included in this before the election-much more serious incidents-that apparently were not used by people who knew about them. This whole inquiry takes on a very different texture. Senator BRANDIS-Can I just take that further. Doesn't it strike you, Air Vice Marshal Titheridge, as extraordinarily ironic that ministers and the Prime Minister are being chastised for misleading the public, or allegedly misleading the public, in relation to one incident, which was an isolated incident on 7 October, when we have heard hours and hours and hours of evi- dence from senior naval officers that this pattern of behaviour, as they all accepted it was prop- erly described-of threatening to throw children overboard and in one case doing it, and in CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 695 other cases sinking vessels so that children ended up overboard-was happening all the time around this period? Doesn't it strike you as ironic that there has been this excessive concentra- tion on one isolated incident out of a long pattern of behaviour involving multiple SIEV ves- sels? Air Vice Marshal Titheridge-I just pass on the information. I am not going to make any judgments about how it is used. CHAIR-Are you making a case to call Peter Reith? Senator MASON-It is a very fair question-a child was dropped overboard on 24 October, two weeks before the election. Senator BARTLETT-I think it is ironic that we still have the accusation being made that children were thrown overboard when we had one incidence only, and that one was clearly dropped and rescued by a boatperson. But irony is in the eye of the beholder, I guess. When Brigadier Silverstone was giving evidence he indicated that this one phone call that seems to have led us all to this point was the only occasion on which he communicated directly through you rather than up the chain of command. Is that correct? Air Vice Marshal Titheridge-It is the only occasion that I can recall. Senator BARTLETT-Obviously it is unusual if it was the only occasion; why would that have been the only time? Why would it not have happened before or since? Air Vice Marshal Titheridge-I really have no comment at all, except to say that I regularly spoke to operational commanders and information was passed to me. In this particular instance, I suspect that the theatre commander probably authorised Brigadier Silverstone to ring me direct. Senator BARTLETT-So, normally, where would your information flow from? Air Vice Marshal Titheridge-Normally, Rear Admiral Ritchie. Senator BARTLETT-So all the information on these other incidents that disproves any pattern of behaviour of throwing children in the water, given that that never happened at any one time, would normally have come through Rear Admiral Ritchie or his staff. Air Vice Marshal Titheridge-It could have come through other areas, too, Senator. Rear Admiral Ritchie would ring me regularly-in fact, quite often-and we would also get formal written reports. Senator BARTLETT-What is the sort of detail in those reports? We have this focus from some on highlighting aggression among some of the asylum seekers. Would that be the main focus of those reports? How much detail would they contain? CERTAIN MARITIME INCIDENT CMI 696 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I would have to refer back and have a look, as that was a fair while ago. But they would normally be an unemotional, factual summary of what was happening with the particular incident. That is the way we normally report in the Australian Defence Force. Senator BARTLETT-And the reports focus on everything that is happening, or just the key operational aspects? Air Vice Marshal Titheridge-They focus on a range of issues. They contain the sorts of things you would expect from a report of an incident. Senator BARTLETT-And you are saying that you then passed that on to a range of different people. Would they be the same people each time? Air Vice Marshal Titheridge-I am saying that sometimes it was passed verbally, sometimes it was encapsulated in a daily situation report and sometimes it might have been part of a formal brief. There is a variety of means by which that information would have been passed. Senator BARTLETT-You said at the start that you were initially part of the IDC-or that you initially attended IDCs-and that, with other pressing matters, your staff then attended in your place. Is that right? Air Vice Marshal Titheridge-That is correct. Senator BARTLETT-So you would have a fair idea of what sorts of purposes the IDC would put these reports to? Air Vice Marshal Titheridge-I have no specific recollection. I think you would need to ask the members of the IDC that. Senator BARTLETT-But as to the general purpose of the IDC getting these reports and updates is what I mean. Air Vice Marshal Titheridge-It was not always the IDC that got the updates. The IDC was really just a coordination mechanism. The reports sometimes went to officials, sometimes went to the minister's office and sometimes went to the people-smuggling task force that was set up in the Department of Foreign Affairs and Trade. Senator BARTLETT-Who would determine where these reports would go to? Air Vice Marshal Titheridge-A situation report that was put out daily had a set address list, which I just read. Senator BARTLETT-So that would be a standard group of people each time? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 697 Air Vice Marshal Titheridge-That would be a standard one. As a matter of course, as I think I indicated in my opening statement, if I received verbal information I would generally pass it on to the Chief of Defence Force, through the chair of the IDC and to the minister's staff-as a general rule. Senator BARTLETT-Is it part of the normal information flow for you to pass on directly to a minister's staff-I presume that it is the defence minister's staff when you say `minister's staff'- Air Vice Marshal Titheridge-Correct. Senator BARTLETT-It is not out of the ordinary for you to communicate directly with them, or for them to ring you directly and ask for some information? Air Vice Marshal Titheridge-There is a variety of ways that it happens. Senator BARTLETT-But that is nothing unusual or inappropriate? Air Vice Marshal Titheridge-No. Senator FAULKNER-Air Vice Marshal, thank you for tabling the telephone details for your mobile account. There is a lot of telephonic traffic between you and Ms Halton because, in terms of calls that you made, there are four to Ms Halton on 6 October and there are eight to her on 7 October. I assume at times she is also ringing you. Would that be right? Air Vice Marshal Titheridge-That is correct. Senator FAULKNER-You ring her regularly and she rings you regularly-as I said, there is a considerable amount of telephone traffic-because of your responsibility as the Head of Strategic Command and because she is the chair of the task force. Would that be right? Air Vice Marshal Titheridge-I think more the latter than the former. Senator FAULKNER-Fair enough. I appreciate the distinction that you are making. You also rang CDF, as you have indicated, in that series of four phone calls a little after 9 a.m., which we established-albeit it has been excruciating getting there-to be on the day in question. You rang CDF. Could you just briefly explain why. Air Vice Marshal Titheridge-Correct. I should also add that I had a call from Rear Admi- ral Ritchie just after 9 a.m. as well. He said to me that he rang me, so that might have been more information that I also enabled- Senator FAULKNER-Sure. Mobile phones work both ways. You can ring out and people can ring you. That is what is happening, I am sure, isn't it? Air Vice Marshal Titheridge-That is correct. CERTAIN MARITIME INCIDENT CMI 698 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-You rang CDF about this. Just very briefly explain why you would contact CDF. Air Vice Marshal Titheridge-Correct. Senator FAULKNER-But why at that time? Air Vice Marshal Titheridge-Because CDF is actually the overall commander of the whole operation. Senator FAULKNER-Fair enough. Why did you ring Mr Hendy? Air Vice Marshal Titheridge-Because the CDF would also expect me to keep the minister's staff advised of what was going on. The minister was clearly still the minister and our obligation as officials is to pass on information to the minister. Senator FAULKNER-Why would you think CDF would expect you to do that? Air Vice Marshal Titheridge-I think it is a normal expectation. I cannot add to that. The minister receives advice from many people, including CDF and, at times, me. Senator FAULKNER-No. I can understand why you would ring Ms Halton, the chair of the task force. I am interested in why you would ring Mr Hendy that morning. Air Vice Marshal Titheridge-I would say it was probably more important for me to ring Mr Hendy than to ring Ms Halton at times. Senator FAULKNER-Why? Mr Hendy is not on the task force, is he? Air Vice Marshal Titheridge-Mr Hendy is the minister's staff. Senator FAULKNER-I know he is. He is the chief of staff of the minister, in fact. But you rang him before you rang CDF. Air Vice Marshal Titheridge-I do not see anything abnormal in that. The order might- Senator FAULKNER-I am wondering why you did it. What were your instructions? I assume you do not do this of your own volition. I assume there is an instruction, direction or standing operating procedure that ensures you keep the minister's office in touch. I am trying to understand the background. Air Vice Marshal Titheridge-I would rather put it as an expectation. I cannot recall if it is written down anywhere in a duty statement of mine. It may well be. Senator FAULKNER-Was there or was there not an explicit instruction that you ring the minister's office to keep the minister's chief adviser informed? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 699 Air Vice Marshal Titheridge-As a general rule-I do not know if there is an explicit instruction-for this particular incident I was asked to keep the minister's office informed. Senator FAULKNER-Who asked you to do that, please? Air Vice Marshal Titheridge-I have no direct recollection of who asked me to do that. It would have probably been the minister's staff or it may have been CDF. Senator FAULKNER-It is a bit different, isn't it-the minister's staff asking you to keep them informed as opposed to an instruction, order or request emanating from Defence, particularly a Defence superior? I assume there would be a significant number of things which, if they did ask you to do them, you would not do at the drop of a hat, given the sensitivity of this time? Air Vice Marshal Titheridge-That is correct. Senator FAULKNER-As far as you are aware, there is no explicit instruction to ask you to ring the minister's staff? Air Vice Marshal Titheridge-I would have to check that. I cannot recall one. Operation Relex was going on for some time. This was not unusual. Senator FAULKNER-I know that. You talked about the email that goes off with the qualification-the footnote, if you like-to Prime Minister and Cabinet, and we are aware of that. It is important that you have mentioned it. Can you say to me who the email was sent to in the Department of the Prime Minister and Cabinet? Air Vice Marshal Titheridge-I cannot specifically tell you that. I think we tried to find that out; I am not sure if we know. We will check that and see if we can find out. Senator FAULKNER-I really would appreciate knowing that if it is possible. CHAIR-There would be a record of that, wouldn't there? Air Vice Marshal Titheridge-We were looking for it before. We did have a few faxes, but I do not know if we have got specifically who it was emailed to. It might have been either faxed or emailed. We are checking that. CHAIR-But there would be a record? Air Vice Marshal Titheridge-I am sure there is a record. If there is, we will find it. Senator FAULKNER-Thank you for that. If you would provide a copy of it, I would appreciate that. The actual email was also prepared in Strategic Command, wasn't it? Air Vice Marshal Titheridge-That particular one was prepared by my staff. CERTAIN MARITIME INCIDENT CMI 700 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-So are you able to identify which staff member prepared it? Air Vice Marshal Titheridge-Not specifically. It may have been the watchkeeper. I have no direct knowledge at this stage of who exactly prepared it. Senator FAULKNER-Could you find that out for us please-where and when in Strategic Command that quite important email was prepared? Have you made any attempts to check that, given the notoriety of this matter? Air Vice Marshal Titheridge-No, I have not. The fact that it went was enough for me. Senator FAULKNER-It is not enough for me, so I wondered if you would not mind finding that out. I really would appreciate it if you could. The key point about this email prepared in Strategic Command is that it does raise at a minimum, I think it is fair to say-I do not want to put words into your mouth; you say what you think-serious doubts and concerns, doesn't it, about the whole suggestion that a child or children had been thrown overboard? Is that fair to say? Air Vice Marshal Titheridge-I think I said, and I say no more than, that the footnote aptly summarises the information available to my staff at the time. Senator FAULKNER-Yet how do you, as the Head of Strategic Command, maintain a different view right through to 25 November? Air Vice Marshal Titheridge-It was relatively straightforward. There was an awful lot going on at this time. My focus was clearly on the war against terror, and a lot of other significant events were happening. My staff also focus on the future. Fortunately we do have the ability to answer questions of detail later on. There was a request for this particular information that the staff quite rightly passed on. I would not expect them to tell me. Senator FAULKNER-You were not told by your staff? Air Vice Marshal Titheridge-No, I was not. Senator FAULKNER-You did not speak to your staff about this particular matter? Air Vice Marshal Titheridge-I would not expect the staff to bring a routine issue like that up with me, no. Senator FAULKNER-I do not know how routine it is! Contrary to what my esteemed colleague over there Senator Mason says about this being one isolated incident, it is a matter that is on the front page of literally millions of newspapers in Australia. Senator MASON-The question is why the others- Senator FAULKNER-The point is that it is not an isolated incident. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 701 Senator MASON-That is an issue that we have got to get to. Senator FAULKNER-The point is that it is a matter of extraordinary public notoriety. It is literally on the front page of millions of newspapers in this country, as you know, Air Vice Marshal Titheridge. Air Vice Marshal Titheridge-At the time, it was not a great issue. Senator FAULKNER-What do you mean? It was not a great issue for you, you mean? Air Vice Marshal Titheridge-I do not think it was an issue for my staff either. It was a routine issue at that time. We had moved on from SIEV4. Senator FAULKNER-That proved, of course, not to be the case. This was not an isolated contact with Mr Hendy. There was at least one other contact a bit earlier that day, if I am not mistaken. So did you keep in reasonably regular contact with Mr Hendy as well? Air Vice Marshal Titheridge-Mr Hendy or Mr Scrafton. Senator FAULKNER-And there was a similar flow of information from you, as Head of Strategic Command, with Mr Hendy and Mr Scrafton as there would be, say, with Ms Halton? Would it be at a similar level? Air Vice Marshal Titheridge-Probably. I would probably talk to the minister's office more frequently, generally, across the year, but this was just for Operation Relex that I was speaking to Ms Halton. Senator FAULKNER-But it is not just those members of Mr Reith's staff that are contacting Strategic Command. I think it is fair to make the distinction that, as the Head of Strategic Command, you have had contact with those departmental officers, but then we have the case of Mr Hampton, who was making very regular contacts, on 7 and 8 October, with your command, wasn't he? Air Vice Marshal Titheridge-I would have to check the record. I have no personal knowl- edge of that. Senator FAULKNER-With respect, this is all pretty public information. I think it is reasonable for me to ask you this. Are you aware of the witness statement of Flight Lieutenant Jason Briggs? Air Vice Marshal Titheridge-I have not read the witness statement of Flight Lieutenant Briggs, but I am aware that Mr Hampton contacted him. Senator FAULKNER-Fair enough. If you have not read his witness statement, so be it, but he is the watchkeeper of Strategic Command. Air Vice Marshal Titheridge-He is one of the watchkeepers. CERTAIN MARITIME INCIDENT CMI 702 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-Sorry, he is one of the watchkeepers. He is a watchkeeper at Strategic Command. In his witness statement, he talked about Hampton's contact. He talked about him being very agitated and angry at times. Did any of those reports come through to you, as the Head of Strategic Command? Air Vice Marshal Titheridge-No. I am sure if there was an issue with those then the watchkeeper would have brought it up with his immediate supervisor, who would have told his director. If it was not resolvable at that level, then it would have got to me. It did not get to me. Senator FAULKNER-What contacts did ministerial staff have at other levels in your command; for example, with Flight Lieutenant Briggs? In Hampton's case, what information was requested by Mr Hampton and what was provided in response to those requests? If you do not know-and I think you are indicating to me you do not have that level of detail-could you take that on notice, in relation to contacts by ministerial staffers of Minister Reith with Strategic Command during the period 7 October 2001 through to 10 November 2001? Air Vice Marshal Titheridge-We will chase up the information that we have. Senator FAULKNER-Thank you. Do you know if there was any direct contact with Strategic Command from the prime ministerial staffers in the Prime Minister's office? Air Vice Marshal Titheridge-I have heard there was such contact. Senator FAULKNER-Could you explain the detail of that contact to us? Air Vice Marshal Titheridge-I do not have the information on the detail of that contact either. I would have to ascertain it and get it for you. Senator FAULKNER-Could I ask you, again, to provide that on notice? I had hoped that you might be able to answer some of these questions today. I wondered, given the circumstances, and given the fact that this matter has been canvassed, as you know, at the Defence estimates and is being canvassed currently at this select committee, whether you had satisfied yourself as to the nature and appropriateness of the contacts between ministerial staffers and your staff at Strategic Command? Air Vice Marshal Titheridge-It was a very busy period then. There was a lot going on. Tracking all those different information loops would be extremely difficult. It certainly was then, and our focus, as I said to you before, was elsewhere. Senator FAULKNER-But you must know that Mr Hampton, for example, is receiving faxes that are sent by Strategic Command, sometimes in response to tantrums that Mr Hampton is throwing with one of your watch-keepers and the like. You would accept, wouldn't you, that this is information being provided to the minister and the minister's office outside the chain of command? Air Vice Marshal Titheridge-I would categorise it as information that is obviously being passed at a staff level. I am not prepared to say any more than that. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 703 Senator FAULKNER-Is it outside the chain of command or not? Air Vice Marshal Titheridge-I am outside the chain of command. I often pass information to the minister's office outside the chain of command. Senator FAULKNER-But regardless of all that, do you acknowledge that none of that material referred to children being thrown overboard? Air Vice Marshal Titheridge-I think if we go back to that chronology that was passed- and that, it is my understanding, was the prevailing view in Strategic Command-it would be my belief that, no, there was no information apart from what was passed in that particular chronology. That chronology was the best we knew at the time. Senator FAULKNER-Doesn't Major General Powell note that this contact is outside the chain of command? Isn't that one of the points that he makes in his report? Air Vice Marshal Titheridge-I have read Major General Powell's report and he refers to a range of information flows. Senator FAULKNER-But he does make the point that it is outside the chain of command, doesn't he? Air Vice Marshal Titheridge-As I said to you, Senator, I am outside the chain of command. I provide information to the minister's staff outside of the chain of command. Senator FAULKNER-But did you at the time, or do you now, have any concerns about the direct flow of information between Strategic Command and then Minister Reith's office? Air Vice Marshal Titheridge-In a perfect world it would be nice if all that information only came from me or a delegated member of my staff. In a very fast-moving situation with everything that was going on at that time-and Relex was only one such issue-it is very hard to get information through if we stick to just one or two people passing it. Senator FAULKNER-But, given the circumstances where there is direct and quite a significant amount of contact between yourself and Mr Hendy and Mr Scrafton, have you got concerns about the fact that that level of contact at the highest level of Strategic Command sidestepped and you have got another member of the ministerial staff badgering the watch- keeper? Air Vice Marshal Titheridge-The only concern I would have is that, with the amount of information that was being passed around and how often it was being passed around, perhaps it could not have always been passed in the best manner. Apart from that, I have nothing more to add. Senator FAULKNER-But surely you would acknowledge that the way this worked was not in the best manner. CERTAIN MARITIME INCIDENT CMI 704 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-As I said, you cannot operate in such a fast-moving situation in ideal circumstances. We can only do our best. Senator FAULKNER-Air Vice Marshal, with regard to the special arrangement between yourself and Brigadier Silverstone, can you just tell me very briefly who established that or where the request to establish that special relationship came from? Air Vice Marshal Titheridge-I would not call it a special relationship. Senator FAULKNER-Arrangement, I should say. I am sorry, I should have used that. I think that is the accepted terminology. Relationship is a poor word to use; arrangement is much better. Air Vice Marshal Titheridge-I would not even class it necessarily as a special arrangement. I often received information from commanders-in particular, Rear Admiral Ritchie. There was sometimes a request for updated information. In this particular instance, my recollection-and it is only my recollection, or my belief-was that I was asked to provide an update on the latest SIEV on the Sunday morning, and I would have passed that request to Rear Admiral Ritchie. It would be my belief that it was he who decided that Brigadier Silverstone could ring me direct. Senator FAULKNER-But you do not recall who contacted you about that? Air Vice Marshal Titheridge-No, not specifically. Senator FAULKNER-You do accept that is outside the chain of command? Air Vice Marshal Titheridge-A lot of things are, as I said, Senator. I am outside the chain of command, so you could say I often operate outside the chain of command on behalf of CDF. Senator FAULKNER-Did you have any opportunity to brief Group Captain Walker about the `children overboard' claims on 7 October? Air Vice Marshal Titheridge-I have no recollection. We were moving on to the next challenge. By the afternoon of the 7th, I suspect that we were looking at other issues with SIEV4, not the issues that had passed. CHAIR-He was your departmental representative on the committee, wasn't he? Air Vice Marshal Titheridge-He attended at times in my place. CHAIR-And you knew he was going that day? Air Vice Marshal Titheridge-I asked him to go that morning. CHAIR-So why didn't you tell him? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 705 Air Vice Marshal Titheridge-Tell him what, Senator? CHAIR-What you had told Halton. Air Vice Marshal Titheridge-At that stage I would assume that he would pick up information from the IDC. He and I did not speak until the second IDC that afternoon, and by then we were focusing on other issues. I arrived halfway during the meeting- CHAIR-You ring Halton and tell her, you ring the minister's staff and tell them, but you do not ring Walker, your own nominated representative on the committee, and tell him. Air Vice Marshal Titheridge-No. I do not see that as strange, though. CHAIR-And you assume that he will learn this from Halton or from the minister's staff? Air Vice Marshal Titheridge-I also probably would have assumed that he had picked it up through the command chain when he went into the office. CHAIR-Have you seen his comments on his advice in the Powell and Bryant reports? Air Vice Marshal Titheridge-I am now aware that he was not told. CHAIR-And that he was embarrassed because he did not know. Air Vice Marshal Titheridge-I have seen his evidence. Senator JACINTA COLLINS-It was not in the operational reports of the chain of com- mand. CHAIR-He is entitled to be embarrassed, isn't he? He represents you and he has not heard from you. Air Vice Marshal Titheridge-He would have taken to that IDC the best information he had available. If I overlooked passing it on to him, that is not unusual. It was a very fast-moving situation, as I said. Senator FAULKNER-Air Vice Marshal, if you have a special reporting arrangement, which is this special arrangement between yourself and Brigadier Silverstone in relation to SIEV4, I am surprised you cannot say to me where that emanates from. Given that it is a special arrangement and is not standard operating procedure, it is different to the usual practice. Air Vice Marshal Titheridge-Senator, your question was did I know who specifically asked me, and I do not know. The request itself I believe emanated from the minister's office. Senator JACINTA COLLINS-Minister Reith? Air Vice Marshal Titheridge-Yes, that is right. CERTAIN MARITIME INCIDENT CMI 706 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-So the request comes from the minister- Air Vice Marshal Titheridge-But whether it came through CDF or direct to me, I cannot recall. Senator FAULKNER-How do you know it comes from the minister? Air Vice Marshal Titheridge-Just my belief. Obviously there was information available to me at the time that indicated that. Senator FAULKNER-Do you know what the several new elements were that justified the special arrangement? Air Vice Marshal Titheridge-I am not sure what you are getting at there. Senator FAULKNER-Do you know what justified this particular special arrangement being put in place? Air Vice Marshal Titheridge-Not specifically. I suspect that the minister was always after the latest information. Senator FAULKNER-Had any similar reporting arrangements been put in place for other boats, either before or after SIEV4? Air Vice Marshal Titheridge-I regularly advised the minister's staff on SIEVs and the lat- est information on them as they came in. This particular arrangement, clearly the minister's staff wanted it at a certain time, and I arranged that. Senator FAULKNER-Around 6, 7 or 8 October, you did not have any direct contact with the minister himself about any of these matters, did you? Air Vice Marshal Titheridge-I did speak to the minister on the 7th, according to my phone records, in the afternoon on four separate occasions. Senator FAULKNER-Did you have any contact with any other ministers or ministers' officers on those dates-Mr Costello's office, for example? Air Vice Marshal Titheridge-No, I did not. Senator FAULKNER-In your discussions with Minister Reith did you canvass the so- called `children overboard' issue with him? Air Vice Marshal Titheridge-I cannot recall the content of the conversations. I would have passed on to the minister the latest information I had at the time, including as more information came throughout the day, and I would have passed that on. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 707 Senator FAULKNER-When you talked about this issue, did you qualify the reports when you were passing it on and discussing it with other people, either inside or outside Defence? Air Vice Marshal Titheridge-What do you mean by `qualify'? Senator FAULKNER-Did you place any caveats on the information? Air Vice Marshal Titheridge-I would have said that this information was passed to me by the operational commander. Senator FAULKNER-You believed at this point, didn't you, that a child or children had been thrown overboard? Is that fair? Air Vice Marshal Titheridge-Correct. I had no reason not to believe what Brigadier Silverstone told me. Senator FAULKNER-But did you place any qualifications on this, given the fact that you had not had anything other than telephonic communication with Brigadier Silverstone? Were there any caveats, qualifications or expressions of caution in this at all? Air Vice Marshal Titheridge-When the operational commander passes me information, apart from the source of it, I see no reason to provide caveats. I am not exactly sure where you are coming from on this point. Senator FAULKNER-I thought you had indicated that in your statement to Major General Powell. Air Vice Marshal Titheridge-What I indicated in my statement to Major General Powell was that the caveats would have been the source of the information. Senator FAULKNER-I am sorry, the caveats would have been what? Air Vice Marshal Titheridge-The caveats would have been the source of the information-in this case, Brigadier Silverstone. The caveats would only have been, `Telephone advice from Brigadier Silverstone.' Senator FAULKNER-Did you make any approaches, subsequent to 7 October, to any of those involved-Rear Admiral Ritchie, Rear Admiral Smith, Brigadier Silverstone, the commanding officer of Adelaide or any other officer in Defence-to clarify what actually occurred with this incident? Air Vice Marshal Titheridge-Do you mean subsequent to SIEV4? Senator FAULKNER-Yes, subsequent to 7 or 8 October. CERTAIN MARITIME INCIDENT CMI 708 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I was certainly not attempting to clarify it. As I said in my opening statement, I really did not refocus on the issue until I saw that signal at the end of November. That was the first time I paid any attention to it again. Senator FAULKNER-As the Head of Strategic Command, can you say to the committee whether there was any possible military strategic significance in the supposed throwing of a child overboard? Air Vice Marshal Titheridge-I certainly suspect it was more a media issue than a strategic issue. Senator FAULKNER-I accept that. Air Vice Marshal Titheridge-But it was an issue in that it was one of a number of pieces of information that gave us an indication of the way the SIEVs were reacting, and it was important for the minister-because, after all, we do work for the minister-and the CDF to know that. It was also important for the operational command chain to know that so that they could be prepared for the next SIEV that came in. So, in that respect, the information was of military significance. Senator FAULKNER-But you said yourself that `it was a media issue.' I will ask you directly: it was not an important military strategic issue, was it? Air Vice Marshal Titheridge-Only insofar as it was a part of a range of behaviours that our people in the ships would be facing and needed to be prepared for. Senator FAULKNER-But you say it was an important media issue, and I accept that. Air Vice Marshal Titheridge-No; I said it became a media issue after the event. At the time, the information was part of a general pattern of behaviour-not a pattern; it was a pattern that started to develop-and it was important for the operational commanders to at least be aware of that, and certainly for CDF to know what his forces were facing. ACTING CHAIR (Senator Brandis)-So the information had an operational significance, Air Vice Marshal. Air Vice Marshal Titheridge-I am saying it had significance for the operators to know so that they were prepared for future SIEVs. That is what I am saying. Senator FAULKNER-Isn't it true to say, Air Vice Marshal, that this was a political and media issue; it was not a military strategic issue? Air Vice Marshal Titheridge-My job is to pass on information that may be of use to commanders-and at the top of that command chain lies the minister-and may be of use to subordinate commanders. This was just one of those pieces of information. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 709 Senator FAULKNER-No. In this case, in fact, the information was used on a morning television program-it was seized on for political advantage. That is what happened. That is where the report went, and that was its purpose. That was the purpose, was it not, Air Vice Marshal, of the special arrangement between you and Brigadier Silverstone? I do not blame you for that, but that is what the arrangement was put in place for, and that is what happened. Air Vice Marshal Titheridge-As I said, my job is to pass on information and to make sure that the operators have access to that information. That is the way we treat it in Strategic Command. Senator FAULKNER-I know you were busy and it was a fast-moving situation, but you did have some time to reflect on this, even at the time. Didn't I read somewhere that you actually went to the races? Air Vice Marshal Titheridge-That afternoon I went- Senator FAULKNER-Fair enough too. Good on you. I like going to the footy myself, so I do not blame you for that for one minute. But it is not as if it was so fast moving, such a pressure situation, that there was not some opportunity to reflect. Air Vice Marshal Titheridge-I would dispute that. I actually made 42 phone calls that day, outwards. That is not the ones that came in. It was a fast-moving situation wherever I was, whether I was at leisure activity or not. Senator FAULKNER-Could you please outline, for the benefit of the committee, what oc- curred on the evening of 7 October? What is your recollection, briefly, of the discussion of the `children overboard' incident at the IDC? Air Vice Marshal Titheridge-At the IDC itself, I do not recall. I have no recollection of any discussion. There was a subsequent meeting, following the IDC, at which a paper was put together by Prime Minister and Cabinet. Senator FAULKNER-Were you aware that Group Captain Walker, who left the meeting when you arrived-I think that is right, isn't it, Air Vice Marshal? Air Vice Marshal Titheridge-I think he says that, and I have no reason to doubt it. Senator FAULKNER-Are you aware that he had stated that there was no documentary evidence of the claim that children had been thrown overboard? Air Vice Marshal Titheridge-No, I was not aware he had said that. I know his evidence is that, but I certainly was not aware of it at the time. Senator FAULKNER-I do not want to pressure you on this, but I want to be clear whether the issue of children being thrown overboard, or concerns about that, were discussed at the IDC on that evening when you were present, or whether you are unable to recall. I am drawing a distinction between those two things, if you understand. CERTAIN MARITIME INCIDENT CMI 710 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I doubt very much whether they were discussed. I think we were probably focusing that IDC on what we do next with SIEV4. Senator FAULKNER-Ms Halton, of course, says that she directed the Defence representative at the IDC to do some checking of the initial claims. Could you shed any light on who that Defence representative might be? The reference to this, I think, is on page 31 of Ms Bryant's report. Air Vice Marshal Titheridge-I cannot help you there. Certainly, she did not ask me that particular information. She may well have asked Group Captain Walker, but I cannot shed any light on that. Senator FAULKNER-Fair enough. But it was not you, is what- Air Vice Marshal Titheridge-That is correct. Senator FAULKNER-you can be definitive about. How did the information flow between Defence-in this case it was you or your representative-and the IDC generally work? Air Vice Marshal Titheridge-The IDC was really a coordinating mechanism where representatives from the different departments involved in the whole issue of the unauthorised arrivals pooled information. Clearly it was not something that Defence was operating alone in and clearly we could not operate in isolation, given all the other aspects, of offshore detention et cetera. The IDC was bringing all those threads together. Senator FAULKNER-I am interested in the flow from the IDC to Defence, which is the other way, if you like. How did that actually work? Could there be a direction from the IDC to Defence? If so, did it go through you, and how did that process work? Or was it necessary to go via ministers and another channel? Air Vice Marshal Titheridge-The IDC was really just a coordinating mechanism, as I said. It may well have influenced ministers, but the IDC cannot direct Defence. The only person who can direct Defence is the minister or CDF. But clearly the IDC enabled me or my representative, and certainly the other members of the different departments, to understand what else was going on in the other areas and tailor our directions accordingly. But the IDC itself did not specifically command or direct. CDF is the only one that can do that in terms of Defence. Senator FAULKNER-Are you aware of the Strategic Command brief HSC 001/1109? Air Vice Marshal Titheridge-I would have to look- Senator FAULKNER-That was the brief that was attached to Group Captain Walker's submission to the Powell report. Air Vice Marshal Titheridge-I would have to look it up. We are just trying to find it now. Senator FAULKNER-I thought I had it here. I have now found it. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 711 Air Vice Marshal Titheridge-One of the questions on notice you gave us earlier about that email and the chronology- Senator FAULKNER-Yes. Air Vice Marshal Titheridge-By the look of this, the watchkeeper emailed it to Mike Scrafton and he used his log of events as the summary. Senator FAULKNER-Thank you for that. Air Vice Marshal Titheridge-My suspicion is that it was then probably faxed to PM&C. We have not actually established that addressee yet. Senator JACINTA COLLINS-Who produced that report? Air Vice Marshal Titheridge-That would have been put together by the watchkeeper, who at that stage was a Captain Hunter. Senator FAULKNER-Thanks for that. Anyway, we will get that detail a little later. Have you got hold of this minute now? Air Vice Marshal Titheridge-I have got hold of- Senator FAULKNER-I am calling it a minute; I do not know that that is the correct terminology. Air Vice Marshal Titheridge-Is this `the minister, for information'? Senator FAULKNER-No, this is HSC 001/1109. Group Captain Walker appends it to his submission to Powell. Air Vice Marshal Titheridge-The actual file address is incomplete. If you could give me some words at the top of it, I might cue it to the document I have here, perhaps. Senator FAULKNER-I will ask someone to photocopy it for me and come back to you in a moment. The point here is, Air Vice Marshal, that Group Captain Walker represents you at the IDC on the morning of 7 October. Air Vice Marshal Titheridge-That is correct. Senator FAULKNER-Group Captain Walker says on the morning of 7 October that he will check if there is any evidence that kids have been thrown overboard. That is right, isn't it? Air Vice Marshal Titheridge-I would have to check that. I would have to ask Group Captain Walker that. CERTAIN MARITIME INCIDENT CMI 712 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-That is pretty clear from the public record, but if you would care to. But he does check and he reports back to the IDC in the evening that there is no evidence. I do find it quite extraordinary that you are not aware of that. Air Vice Marshal Titheridge-It is probably an indication of how things were moving at the time, I suspect. Senator FAULKNER-We can talk about the Group Captain now. Would you mind handing one of those to the Air Vice Marshal? Air Vice Marshal Titheridge-I think the relevant point is that a couple of days later my staff did provide advice on information we knew across to both Prime Minister and Cabinet and the minister. The fact that I did not know I am not sure is directly relevant. I have that bit of paper now. Senator FAULKNER-I am describing that as a brief; in Defence parlance, what should I describe it as? Air Vice Marshal Titheridge-A brief would be an adequate descriptor. Senator FAULKNER-When did you become aware of this particular brief? Air Vice Marshal Titheridge-I cannot recall having seen it but I may well have. In fact, a lot of the information on SIEV4-the details-has really only come to light in the context of the Powell and Bryant reports. Senator FAULKNER-As the Head of Strategic Command do you accept responsibility for a brief like this? Air Vice Marshal Titheridge-Only if I sign it. Strategic Command is a very busy organisation and it was dealing with a lot of different operations. It was focusing on the war against terror. Senator FAULKNER-I appreciate that, as does all the committee, I am sure. We are thankful that you are doing it. But also, you, Air Vice Marshal, unfairly or fairly, whether you want to be or not, have been placed in the position of being a conduit of information between Defence and the minister. I think it is fair to say that that is true, isn't it? Air Vice Marshal Titheridge-I would say that Strategic Command as an organisation is a conduit. Senator FAULKNER-I accept that you are busy; I know you are busy. I appreciate it and I acknowledge it. Do not think for one moment I am suggesting you are over there twiddling your thumbs. I know that is not the case. But it does not alter the fact that these are still proper and reasonable questions to put to you, given the circumstances. This is a matter that we are canvassing at this committee - CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 713 ACTING CHAIR (Senator Brandis)-Senator Faulkner, just ask your questions. Do not lecture the witness. Ask your question. Senator FAULKNER-I am not lecturing the witness at all, and I think he would probably acknowledge that I am not. I am acknowledging- ACTING CHAIR-Move on to your next question. Senator FAULKNER-I am acknowledging that the Air Vice Marshal is busy. I am indicating to him that he does not need to justify that to me because I agree with him. It is proper that I say so because I do not think the Air Vice Marshal needs to be defensive about that. When a brief like this comes out of Strategic Command, I am wondering whether you accept responsibility for it. I think you have indicated that, if you do not sign it, you do not, basically. Air Vice Marshal Titheridge-Mind you, I accept responsibility for the actions of my staff if they are inappropriate. By way of explanation I should point out that my task as Head of Strategic Command, if I could describe it, is looking upward, outward and ahead. I clearly had a focus on a range of issues that were far more important than what happened on SIEV4, and in fact in some respects probably eventually would involve the lives of Australian service personnel. It is not unusual for me not to be involved in detail that is passed. The staff pick a lot of that up and look after it. This is not unusual. Senator FAULKNER-I am a little surprised by this because of how you put this general approach to the committee. You say that your staff provided accurate advice to the Department of the Prime Minister and Cabinet and the minister a couple of days after the events we are talking about-the events of the 7th. You do say that, don't you? Air Vice Marshal Titheridge-I would say that my staff provided the best information they had at the time. Senator FAULKNER-You say the fact that you do not know about that is not relevant. Air Vice Marshal Titheridge-I did not say `relevant'; I said isn't important. Perhaps I did use the word relevant, but perhaps a better word is important. Senator FAULKNER-You are a very key point of contact between Defence, the Department of the Prime Minister and Cabinet and the minister's office, and as far as Strategic Command is concerned you are the key contact. Air Vice Marshal Titheridge-I am a point of contact for all of those organisations, yes. Senator FAULKNER-They rely on you for advice. Air Vice Marshal Titheridge-You would have to ask them that question. Senator FAULKNER-Don't you think they rely on you for advice? CERTAIN MARITIME INCIDENT CMI 714 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge- They rely on a lot of people for advice, including, I suspect, representatives from Strategic Command, including me. Senator FAULKNER-They would assume that you would always reflect the view of Strategic Command because you are the Head of Strategic Command. Air Vice Marshal Titheridge-I do not know what they would assume. Senator FAULKNER-I would hope they would assume that. Air Vice Marshal Titheridge-Certainly when I am talking to them I would assume that they understand where I am coming from. Senator FAULKNER-So the issue is to what extent you have got an obligation to keep yourself informed, to keep across the assessments of your command staff on key issues. Air Vice Marshal Titheridge-There is just physically no way I can keep across all the information that comes in and goes out of Strategic Command, because of the amount of it. Senator FAULKNER-This may even be the first time you have seen this document. You may not be able to assist us on it, and I would not necessarily expect you to, but have you seen it before? Air Vice Marshal Titheridge-I do not recall. I may well have seen it in passing when the Bryant and Powell reports came. Senator FAULKNER-Let me briefly ask you, then, a couple of general questions about it. Is it fair to say that this brief would be a central piece in the proper briefing chain for the higher levels of Defence and the minister? It appears to be that, but I will just check that with you. Air Vice Marshal Titheridge-I would class it as a situation report-a routine situation report-passed out from Strategic Command on a summary of the issues as known by the staff at the time. Senator FAULKNER-So is it authoritative? Air Vice Marshal Titheridge-It is the best information they had, and people would need to rely on it. Senator FAULKNER-Yes, that is right. So the senior levels of Defence would normally expect to be able to rely on a brief like this, wouldn't they? Air Vice Marshal Titheridge-They would probably rely on a lot of other things apart from this brief. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 715 Senator FAULKNER-As well, but they would certainly rely on a brief like this. It tells them what they need to know about the events and the significance of a given incident. That would be right, would it not? Air Vice Marshal Titheridge-You would have to ask individuals how they accepted it, but certainly it is information from Strategic Command based on the best information we had at the time. Senator FAULKNER-Exactly, so you would not get a brief like this and suspect that it was in any way deficient. You would accept it at face value, would you not? Air Vice Marshal Titheridge-Unless you have other information, in which case you may well question it-I do not know. Senator FAULKNER-This particular brief-HSC 001/1109-does not mention children being thrown overboard. In fact, it does not mention anything about children at all, does it? Air Vice Marshal Titheridge-It does not appear to, no. Senator FAULKNER-You have got the brief in front of you. Can you just confirm for me what the distribution is for this particular brief, prepared by Wing Commander Cowan and cleared by Group Captain Walker-just very briefly, because it is listed there. Air Vice Marshal Titheridge-Are there any of those particular ones that you do not understand and that you want me to read out? Senator FAULKNER-Let me do it. It says that the distribution is: Minister for Defence, PARLSEC, PM&C, CDF SEC- Air Vice Marshal Titheridge-Secretary. Senator FAULKNER-VCDF, CN, CA, CAF, DEPSECS- Air Vice Marshal Titheridge-`Dep sec' is deputy secretary. Senator FAULKNER-First Assistant Secretary SIP, COMAST- Air Vice Marshal Titheridge-Chief of Joint Logistics. Senator FAULKNER-Thank you- Air Vice Marshal Titheridge-And the next is Head of Public Affairs and Communication. Senator FAULKNER-And DEPSEC CS? Air Vice Marshal Titheridge-Corporate Services. CERTAIN MARITIME INCIDENT CMI 716 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-And DEPSEC I&S? Air Vice Marshal Titheridge-Intelligence and Security. Senator FAULKNER-And HPGA? Air Vice Marshal Titheridge-Head of Preparedness, Guidance and Analysis, which is a division inside Defence. Senator FAULKNER-There was a time when I would have done a lot better on those acronyms. Air Vice Marshal Titheridge-You did pretty well. CHAIR-I think that was a fail. Senator FAULKNER-I accept that; it was a fail. I do recall, however, when I was defence personnel minister, on one occasion very early in my tenure, being worried about the acronyms and asking for Defence to send me over a quick checklist and I got 10 ring-bound folders of acronyms. That was the point, Air Vice Marshal, at which I gave up. Senator MASON-It is longer than the Oxford Dictionary. Air Vice Marshal Titheridge-Senator, it changes so fast in Defence even I have trouble. Senator FAULKNER-They are the recipients of this and that would mean those addressees would have received this brief at or soon after 8 a.m. on 8 October last year. Air Vice Marshal Titheridge-I think it is fair to say that even though they were addressees it would have been their staffs that dealt with them. How many of them actually got to the specific addressees is something that you would need to ask each of the staffs. Senator FAULKNER-I do not know whether we will be able to do that, but the point remains: there is a Strategic Command brief, it does not mention a child or children being thrown overboard or, for that matter, anything about children at all. And I think, from what you have said-and I have got no reason to doubt it-we ought to treat that as authoritative coming from Strategic Command. Air Vice Marshal Titheridge-It was an authoritative statement of the best information the staff had at the time. Senator FAULKNER-Cleared by Group Captain Walker- Air Vice Marshal Titheridge-Correct. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 717 Senator FAULKNER-who checks in the morning the claims of 7 October that children are thrown overboard and reports before you arrive at the IDC later in the day that there is no evidentiary support for those claims. Air Vice Marshal Titheridge-You would have to ask the members of the IDC what they did with that information. Certainly it was not passed to me when I arrived. Senator FAULKNER-We have not got much time, Air Vice Marshal, and I do not want to delay you too long. But I suppose the thing in your evidence which most surprises me is your statement that you are unaware of any doubts about the original claims until 25 November 2001. Is that a fair summary of your view in relation to doubts about the claims? Air Vice Marshal Titheridge-I would rather put it this way, that I actually did not even focus on it again until 25 November so I had no reason to doubt until then. Senator FAULKNER-We are talking here about the original claims that children were thrown overboard. Air Vice Marshal Titheridge-We are talking about an incident that happened on a SIEV and it was part of a range of incidents that happened on a whole bunch of SIEVs. It certainly did not single out in my mind to be of particular significance at the time. Senator FAULKNER-Are you aware, to start off with, of all the media speculation about this? Air Vice Marshal Titheridge-Certainly recently, Senator, but at the time I do not have a strong recollection. Apart from the photographs that were in the paper, I do not have a strong recollection at all of a lot of media speculation. Senator FAULKNER-What about the discussion you had with Rear Admiral Smith? Air Vice Marshal Titheridge-I know he said that in his evidence and I am also aware he made the same statement to Ms Bryant's report, but I do not have a recollection of the phone call. At the time there was a lot going on and certainly I have no recollection of that specific information or in fact of the specific phone call. Senator FAULKNER-Both Rear Admiral Smith and Rear Admiral Ritchie report to Ms Bryant for her report that they separately advised you-separately-that there is no evidence to support the claim that children were being thrown overboard. And I asked Admiral Smith about this again- Air Vice Marshal Titheridge-I heard the question, Senator. Senator FAULKNER-To be fair, Air Vice Marshal, the admiral did not mince words about it. He was very clear under oath to this committee that he had had that conversation, he had expressed the fact that there were stronger than doubts about this issue and felt that you had acknowledged it. CERTAIN MARITIME INCIDENT CMI 718 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I have no recollection. I think Admiral Smith also said that the call was about SIEV5, which was a particularly challenging SIEV, but certainly I cannot help you there. Senator FAULKNER-The element of Admiral Smith's evidence that I think it is proper I ask you about is-and he also mentions this to Ms Bryant, and he has mentioned it in evidence here, so I think he is confident about it-that you confirmed to him that you realised the fact that there is no truth to these claims. Air Vice Marshal Titheridge-I am certainly aware of his evidence here. I am also aware of the statements he made to Ms Bryant. I saw them then and, as a consequence of statements he made to Ms Bryant and questions that Ms Bryant asked of me, I went back through my records to try to get some recollection or some evidence. I found none, nor could I recall a particular. I spoke to a lot of people during that time, and that is one phone call. I remember speaking to Admiral Smith on occasions, but I cannot help you with the content of the calls. Senator JACINTA COLLINS-Can I go back to your comments about the IDC. I may have misheard what you said, but I think you indicated that there was a meeting after the IDC, which dealt with the report to PM&C or to the Prime Minister. Are you referring to the second IDC meeting in the evening of that day or to a meeting that occurred after the evening meeting? Air Vice Marshal Titheridge-There is probably some confusion about this. There was an IDC in the morning, there was an IDC in the late afternoon, early evening and then there was a meeting that followed on from that IDC. Senator JACINTA COLLINS-That is the meeting we do not have any evidence of so far, which is why I have brought you back to it. Air Vice Marshal Titheridge-I think it was discussed in Ms Bryant's report. It was a meeting at which a paper was put together. Prime Minister and Cabinet put a paper together to provide advice on the handling- Senator JACINTA COLLINS-I appreciate that, but my understanding so far is that that was cleared by the evening IDC meeting. That was my understanding of what Ms Bryant's report says. Air Vice Marshal Titheridge-I would like to class it as a follow-on from the IDC. Maybe it had all, but certainly it had some, of the IDC members at it. You could class it as an IDC. I would class it as a meeting that followed the IDC. Senator JACINTA COLLINS-Does this explain why some participants in the IDC indicated, during Senate estimates, no knowledge of a paper that was cleared? Air Vice Marshal Titheridge-That could quite possibly be it. I cannot help you there. Senator JACINTA COLLINS-Does this also explain your concern to Ms Bryant about references to the paper having been cleared and your suggestion that all those present when it was cleared should be indicated in her report? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 719 Air Vice Marshal Titheridge-There was an inference, I think, of me clearing the paper. The general thrust of the paper, from my recollection, was cleared by all those at that meeting. I do not know who those were. You would have to check PM&C's records. Senator JACINTA COLLINS-Okay, but I think at the moment all we have is PM&C's records of the IDC, rather than of a meeting after the IDC. Air Vice Marshal Titheridge-I could guess at some of the attendees, but it would not be authoritative. Senator JACINTA COLLINS-So this is something we would need to ask Ms Edwards, perhaps? Air Vice Marshal Titheridge-She or Ms Halton might have a better view. Certainly, the major departments would have been involved: Attorney-General's, Immigration, Defence, and Prime Minister and Cabinet. I do not know about AFP; I am not sure. Anyway, they are the sort of general- Senator JACINTA COLLINS-Defence would have been you. Group Captain Walker had departed by that point? Air Vice Marshal Titheridge-Yes, he left. Senator JACINTA COLLINS-On to another issue, can you give the committee any guidance on why Brigadier Silverstone thought that the special arrangement pertained to information relevant for the Treasurer? Air Vice Marshal Titheridge-No, I cannot help you there at all. Senator JACINTA COLLINS-So you have no knowledge of the notation in his notes about the Treasurer? Air Vice Marshal Titheridge-I have no recollection of it. CHAIR-It was about a minister appearing on a current affairs program, though, wasn't it? Air Vice Marshal Titheridge-My recollection is that it may have had something to do with a media appearance, but I cannot help you any more than that. Senator JACINTA COLLINS-Was it a media appearance by your minister or a media appearance by the Treasurer? Air Vice Marshal Titheridge-I cannot help you there. If I was going to have a guess, it would be my minister, but I am not sure. CHAIR-This was in the caretaker period. CERTAIN MARITIME INCIDENT CMI 720 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I am not sure of the relevance of that. CHAIR-Only that special rules apply during the caretaker period. Air Vice Marshal Titheridge-I think I did review those caretaker rules, and it is my belief that ministers can ask for information that is relevant to their day to day business. The overall situation with the different SIEVs was certainly relevant to the minister. CHAIR-But not to the Treasurer. Air Vice Marshal Titheridge-I cannot comment on the Treasurer; I do not know anything about the Treasurer. CHAIR-So you cannot confirm, but nor can you scotch, the story that it was for the Treasurer, who in fact did appear on the Sunday program that Sunday morning, that this special arrangement was put in place? Air Vice Marshal Titheridge-That surprises me. I did not see who appeared that morning. Certainly mention of the Treasurer was a surprise to me, so I have no knowledge of that. Senator JACINTA COLLINS-A special arrangement within Defence, and for the defence minister, is one issue; we are looking at special arrangements that carry over further to the needs of the Treasurer, and that is perhaps another issue- although I should note that the only person at this stage who has provided evidence to us about the Treasurer is Brigadier Silverstone, who is well down the chain of this request. Part of this problem is that you yourself do not recall, at this point, where that request emanated from. Air Vice Marshal Titheridge-I would not call it a special arrangement. I would call it a normal arrangement, where an operational commander is passing information to me-or where information is sought from an operational commander. In this particular instance the only difference, from my recollection, was that Rear Admiral Ritchie had decided that Brigadier Silverstone could provide it directly. I do recall that there probably was a time element in that. Senator JACINTA COLLINS-We are going to have to look-away from today, I think- more closely at this timing issue. The Defence task force has advised us that daylight saving was in fact not in force on this date of your telephone log. So that leads me to question, once you work through the timing, the series of calls you refer to which bring us to a time that is 6.17 on the Adelaide. However, I note that there is an earlier telephone call to Ms Halton at 8.05, and then there is a series of telephone calls at 8.45, 8.47 and 8.48, one of which is to Mr Hendy. Could you tell us whom those two other calls were to. Air Vice Marshal Titheridge-Perhaps I could lead you through it this way. I put together this telephone log, and I cannot tell you exactly when Brigadier Silverstone rang me but I have inferred nine o'clock for the reasons that I will give you. Senator FERGUSON-It is certainly eight o'clock on the night before. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 721 Air Vice Marshal Titheridge-It is unlikely, and the reason it is unlikely is that I was chasing DJOPS. I tried him at work but he was not there. I rang him on his mobile phone. His evidence is (1) that I had rung him to get him to attend that meeting in the morning and (2) that when he got to that meeting he was surprised by the information. So, if I had had that information on SIEV4 when I rang him, I would have told him. Senator JACINTA COLLINS-Who is this? Air Vice Marshal Titheridge-This is Group Captain Walker. So my assumption is that it is after the call to Group Captain Walker that I received the information. I cannot be sure about that, but that is my best guess. CHAIR-This might be an appropriate time for me to correct a misleading piece of information I gave earlier when I said I thought that daylight saving applied at this time. I am now advised that it did not. I was wrong and I make the correction accordingly. Air Vice Marshal Titheridge-I think that this timing issue is still on the table. CHAIR-Yes. Air Vice Marshal Titheridge-I have this telephone log. There are explanations I could foresee for the other calls, but the key issue, I think, is the extent of Group Captain Walker's knowledge and also the fact that I did not call a lot of people. I just called some, and there was quite a large gap between calling Ms Halton and calling DJOPS. Senator FAULKNER-You have the telephone log, and that is fine. That has meant that you have been able to provide some detail in relation to some of those calls. But on very many questions asked of you today you have just said that you have no recollection. It seems to me that that is very unsatisfactory. Air Vice Marshal Titheridge-I think, Senator, it is a reflection of what was going on at the time and how I viewed this particular issue. Senator FAULKNER-But there does seem to be a real disconnect between you as the Head of Strategic Command and Strategic Command. Is that fair, because you do not find out about a whole lot of important and key advice until it is provided literally weeks and weeks later? Air Vice Marshal Titheridge-Another way to put it, Senator, is that there were some routine bits of follow-up information that were provided by the staff, and the watch-keeping staff provided that chronology. The rest of Strategic Command, I would suggest even from about the Tuesday or Wednesday onward, were focused on a whole range of other issues and certainly not SIEV4. Senator FAULKNER-You do not seek views on the accuracy of the photos that are used to mislead the public; you just move on to the next issue-and I have got to say to you that I do not think that is good enough. I do not think it is good enough for you to come here and say in answer to so many questions asked of you, `I can't recollect that,' or, `I have no recollection.' CERTAIN MARITIME INCIDENT CMI 722 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-That is very unfair to the witness, Senator Faulkner. That was an honest answer. If a person does not recollect a conversation that happened six months ago, to say that he doesn't recollect is an honest answer. CHAIR-It wasn't the case as far as your side was concerned when Carmen Lawrence gave evidence. Senator FAULKNER-In this case Air Vice Marshal Titheridge is saying that he cannot recollect this issue being a major political issue in the middle of an election campaign. That just beggars belief. Senator BRANDIS-It doesn't beg my belief. Senator FERGUSON-It wasn't for two weeks. Senator FAULKNER-Air Vice Marshal Titheridge, it beggars belief particularly when your minister is milking it for all it is worth. Would you care to comment on that? Air Vice Marshal Titheridge-I have nothing further to add, Senator. Senator FAULKNER-I do not understand why you are unable to provide so little detail on important questions that have been asked of you which I would have thought, I must say, you would have been better prepared and better briefed to answer today. Air Vice Marshal Titheridge-I can only answer you on my recollections of events at the time, not what came through in hindsight or what might have subsequently happened. At the time there was a lot going on and at the time my focus certainly was not at all on SIEV4. Senator BRANDIS-Your focus was the war on terrorism which some people might think was even more important than an election campaign? Senator FERGUSON-And border protection. Senator FAULKNER-Given that there were special arrangements put in place with the air vice marshal for the election campaign, I think it is reasonable for questions to be asked about those special arrangements which became a public issue and which dominated the Defence debate in this country at that time and subsequently. I accept the point about what occurs after the event. We all have the advantage of reading reports after the event and seeing the press commentary at the time. But you, Air Vice Marshal, are absolutely central at the time. You are the key or one of two key conduits between the Defence operation and the minister's office, and in this period there is wrong information on three counts: children being thrown overboard, the fact that photographs are supposed to depict children who had been thrown overboard and the fact that there was a video in existence that showed that. On these three things-although they are corrected in Defence and although your own Strategic Command division is well aware of it and providing advice-you as the Head of Strategic Command say to us you know nothing about it until well after the election is over on 25 November. Given its extraordinary notoriety and its importance-regardless of the fact there are other things occurring in the international CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 723 arena which are significant, and I acknowledge and accept that as I have done throughout these hearings-that beggars belief. Air Vice Marshal Titheridge-I looked back at that period and I looked at my notes for that period and just about all the references, apart from subsequent SIEVs, are on `war against terror' and other issues. I think I said to you that I did not focus on it; it was just not an issue for me until late November. Senator FAULKNER-In the cold hard light of day now-because it is, as you properly say, many months after the event-when you look at how you handled this issue at the time, that is, on 7, 8, 9, 10, 11 October and subsequently, are you self-critical at all? Air Vice Marshal Titheridge-I have got to put that back in context with everything else that was going on, and I do not think, had those events played out again with everything else that was going on, I would have been any different. That was a very fast-moving situation-in a perfect world, but there is no such thing as a perfect world in a fast-moving situation. Senator FAULKNER-You say it is a fast-moving situation, sure; but the truth is that at nearly every level of the Defence Force there is acknowledgment that wrong information is transmitted-everyone accepts that. You accept that, don't you? Air Vice Marshal Titheridge-Now I do. Senator FAULKNER-Yes, now you do. Everyone accepts that-that wrong information is transmitted-and that genuine, though unsuccessful, attempts are made to correct it. Do you accept that? Air Vice Marshal Titheridge-Certainly attempts were made or certainly information was passed that was an accurate summary of the information available at the time, yes. Senator FAULKNER-So you were a key part of the wrong information getting out but play no role at all in correcting it. When even in your own organisation all of these attempts are made, nothing happens-and, of course, that is terrifically helpful to Minister Reith and the government at an extraordinarily sensitive time. Senator BRANDIS-That is very unfair to the witness, Senator Faulkner. The innuendo contained in that question is terrifically- Senator FAULKNER-There is no innuendo in the question. Senator BRANDIS-unfair to Air Vice Marshal Titheridge. Senator FAULKNER-The fact that the inaccuracy of this material was not corrected, given the public notoriety of these matters, is what we are here about. Senator BRANDIS-It was probably much more important to you, Senator Faulkner, than it was to a military commander, because it was a political issue and the military commanders had CERTAIN MARITIME INCIDENT CMI 724 SENATE-Select Friday, 12 April 2002 more important things to worry about than political issues. Air Vice Marshal Titheridge, you were responsible at this time for border protection, were you not? Air Vice Marshal Titheridge-I was- Senator BRANDIS-Or had a responsibility as Head Strategic Command? Air Vice Marshal Titheridge-I was Head Strategic Command; I had a whole range of issues. Senator BRANDIS-Did those issues include border protection? Air Vice Marshal Titheridge-That was one of them. Senator BRANDIS-Did they include the `war against terror'? Air Vice Marshal Titheridge-Yes. Senator BRANDIS-Did they include the Afghanistan deployment? Air Vice Marshal Titheridge-Yes, as part of the `war against terror'. Senator BRANDIS-Did they include the East Timor deployment? Air Vice Marshal Titheridge-They include issues to do with the East Timor deployment. Senator BRANDIS-Do you think you might have had more important things to worry about at this time than some silly election campaign issue? Air Vice Marshal Titheridge-That is my view. CHAIR-I will ask a few questions, if I may, because I do share this view that the great mystery which I think gave rise to this inquiry is that the news that a child-which became then `children'-was thrown overboard travelled almost with the speed of light so that three or four hours after the alleged event it was public through the mouth of the minister and later commented on in carefully crafted prose by the Prime Minister, and a month went by after the truth was known and the record was not corrected. That is, front and centre, at the heart of this inquiry. Let me just ask you a couple of things about what has become known here as the Titheridge minute. You would be familiar with this document; you are the author of it. For the sake of the record, it is headed `Unauthorised arrivals information' and the reference is `A. Telcon COS MINDEF/CN SEC 28 Feb 02'. Air Vice Marshal Titheridge-I am aware of it. I will just get the copy so I can be more definitive. CHAIR-I am not going to actually ask you very much about the document itself, but it may help you to have it in front of you. What made you decide to create this document? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 725 Air Vice Marshal Titheridge-I think the Chief of Navy's office actually contacted us. They had been asked for the information-I am not sure who by; you would need to ask them about that-and they had said that it was more appropriate that we provide it to the minister's office, and so we did. CHAIR-Do you know who asked the Chief of Navy's office? Air Vice Marshal Titheridge-No, not specifically. CHAIR-When the Chief of Navy's office contacted you about this, did you ask them why they wanted it? Air Vice Marshal Titheridge-The Chief of Navy's office indicated that that information needed to be passed to the minister's office. CHAIR-That it needed to be passed to the minister's office. Air Vice Marshal Titheridge-Correct. CHAIR-Why did it need to be passed to the minister's office? Air Vice Marshal Titheridge-I do not know. CHAIR-Your note, which is enclosure 1, `Unauthorised arrivals incident information', lists a series of questions. Where do those questions come from? Air Vice Marshal Titheridge-We got them from the Chief of Navy's office. CHAIR-Did you get them in the specific terms in which they appear in your note? Air Vice Marshal Titheridge-I would have to ask that question of my staff. CHAIR-Please do. Air Vice Marshal Titheridge-I suspect we did. CHAIR-Is that able to be cleared up instantly? Air Vice Marshal Titheridge-We would have to check, but we think it is pretty close to the form. CHAIR-There was no poetic licence on your part to change the questions? Air Vice Marshal Titheridge-No, there would not have been any. CHAIR-These are the questions that you were asked to survey? CERTAIN MARITIME INCIDENT CMI 726 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-Correct. CHAIR-So, what is called the `Titheridge minute', the guts of which is the answers to those questions, is something that you were directly asked to do, not something that you thought you should do. Air Vice Marshal Titheridge-Yes. That was something that the Chief of Navy indicated. I am not sure where he got the questions from, or if he or his staff added to them or not. CHAIR-When were you asked? Air Vice Marshal Titheridge-When? CHAIR-When did you receive the request? Air Vice Marshal Titheridge-I would have to check that. Probably a day or so before we provided it, because we normally move reasonably fast. CHAIR-And it was the Chief of Navy's office, was it? Air Vice Marshal Titheridge-That is correct: the Chief of Navy's office. CHAIR-I thought you were just going to give me the date. Air Vice Marshal Titheridge-I cannot help you there. CHAIR-But you can look it up and provide it? Air Vice Marshal Titheridge-Yes. CHAIR-Who in the Chief of Navy's office was it? Was it the Chief of Navy, or one of his staff? Air Vice Marshal Titheridge-I am sure it would have been one of his staff. CHAIR-Did he represent himself as speaking for the Chief of Navy, or as being a conduit for the minister? Air Vice Marshal Titheridge-I would have to check with my staff on that point. CHAIR-How was it conveyed to you? Was it conveyed to in writing, or were you rung and asked? Air Vice Marshal Titheridge-My recollection is that it was an email. CHAIR-Is it possible for us to obtain a copy of that email? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 727 Air Vice Marshal Titheridge-We will take that on notice and clear it appropriately. CHAIR-When you received the questions, were you struck at all by how narrow their focus was? Air Vice Marshal Titheridge-Not particularly. I really did not focus on it. I think it was requested from Maritime Command-I think Navy might have sought it from Maritime Command-and it was put to us in that form, and then we passed it on to the minister's office. CHAIR-This involved an extensive information gathering exercise, at your command, for Rear Admiral Smith, and an extensive deployment of resources to gather this information quickly. Did it strike you as odd, given how busy you were, that such an extra demand should be made? Air Vice Marshal Titheridge-I think the work was probably done in Maritime Command, Senator. CHAIR-Not by you? Air Vice Marshal Titheridge-Correct. CHAIR-But Rear Admiral Smith, who was overseeing Relex, was certainly a very busy officer, wasn't he? Air Vice Marshal Titheridge-I would assume so. CHAIR-You would know that, wouldn't you? Air Vice Marshal Titheridge-I think I would have to refer to Rear Admiral Smith to answer that question directly, but I would assume so. CHAIR-He had a weighty responsibility here, with Relex. This was not an easy task; it was a fairly challenging one. And you now asked him to divert some of his resources to gathering all of this information, which is quite a lot of information-there are over 100 witness statements, for example. So it was an extra and onerous responsibility you delegated to him, wasn't it? Air Vice Marshal Titheridge-Information is regularly sought from the command chain on a range of issues, and this is obviously one of them. CHAIR-Was a deadline given to you by which you must report on these matters? Air Vice Marshal Titheridge-I would have to check that as well. CHAIR-Could you, and could you advise us? Air Vice Marshal Titheridge-Yes. CERTAIN MARITIME INCIDENT CMI 728 SENATE-Select Friday, 12 April 2002 CHAIR-What purpose was given for this information being required? Air Vice Marshal Titheridge-I would have to check that with the email. We do not have the email here. CHAIR-Was a purpose given? Air Vice Marshal Titheridge-I do not recall that either. We will have to check that. The actual link with the requester was through Chief of Navy's office, so they would be in a much better position to answer those questions than we are. CHAIR-All right. Admiral Smith told us last night that this information was not for opera- tional purposes. Air Vice Marshal Titheridge-I think it would be better if you did direct those questions to the Chief of Navy staff because they are in a much better position to answer them much more authoritatively than I am. CHAIR-I know, but your name has been used. This is the Titheridge minute and it is being waved around and it has taken a day or so of examination of Rear Admiral Smith, so I am bound to put these questions to you. Air Vice Marshal Titheridge-I understand that. CHAIR-As I said, Rear Admiral Smith said that these questions and this survey were not for operational purposes. What purposes would they be for? Air Vice Marshal Titheridge-That is a question I really cannot answer. We pass information on as requested to the minister or as requested to Chief of Navy or to CDF. I would couch it as all operational information. The purpose of that information would really depend on the user. CHAIR-I know, but this information is very narrowly focused and specifically drawn, and you are given the questions. It occurs at a time at which the estimates committee is sitting and these matters are notorious. This looks like an information gathering exercise to bolster the government's position, doesn't it? Air Vice Marshal Titheridge-I cannot comment on that. CHAIR-Why not? Senator FERGUSON-That is hardly a fair question. You are asking him for an opinion. CHAIR-Why not? Air Vice Marshal Titheridge-All I can tell you is that I get asked for information from a variety of sources and I regularly pass it, and this was one of them. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 729 CHAIR-Do you regard it as your job to provide political information to the government that it might use in its political debate? Air Vice Marshal Titheridge-It is my job to pass information requested to me by my superiors. Senator BRANDIS-Do you regard any of the content of your minute as political information? Air Vice Marshal Titheridge-As I said to the chairman, I pass information as requested to me by my superiors and it is operational information. Senator BRANDIS-Are you satisfied that each item in the minute you signed off on is factual and based on a professional analysis of data? Air Vice Marshal Titheridge-I must admit I rely on Maritime Command for that, but my assumption is, knowing Maritime Command is a very professional organisation, that it would be professional information. Senator FAULKNER-If this is just such a silly election issue, how come the government ask you to report everything that occurs on SIEV4, how come you make 42 calls on 7 October about it and how come you are a regular attender at the IDC? Senator FERGUSON-How do you know what was in his 42 phone calls? Senator FAULKNER-I added them up. Senator FERGUSON-But how do you know that is what he was discussing on each of those? They could have been personal calls. Senator FAULKNER-The question is that it is not just some aside to some minor matter as far as you are concerned. You are an attender at the IDC. Special arrangements are put in place by government. As you have said, there is an enormous amount of phone contact with Ms Halton about this issue. This is taking an enormous amount of your time, isn't it? Air Vice Marshal Titheridge-Since the start of Operation Relex or Operation Relex information there was an enormous amount of information being passed on all SIEVs and on all aspects, not just SIEVs but also our assistance to the overall defence of the border strategy. This sort of information was not unusual. This was happening all the time. Senator FAULKNER-Sure, but it is a crucial responsibility for you, isn't it? At the time that was a top priority for you as the Head of Strategic Command. Air Vice Marshal Titheridge-It is just a part of my job. Senator FAULKNER-Yes, I know it is a part of your job, but at the time it was a very important part of your job, wasn't it? CERTAIN MARITIME INCIDENT CMI 730 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-Just a part of my job. Senator FAULKNER-But you make the point that you had other things on your mind. You were really personally and professionally engaged in this at a very senior level. I am not critical of that. It is a fact of life. It is not as if all your attention was on the war against terrorism and the like-I am sure some of your day inevitably was spent on that-you also had this as a key responsibility, and that is quite clear from what you have said to us, the evidence you have given, the documentation that has been made available. You were attending task forces, you were talking to a lot of people about it; you were actively involved-including passing information to and from the minister's office. You might be able to say what proportion of your time through early October was spent on the illegal entry vessels issue as opposed to the war against terrorism. I do not think we need to know that. But I think it is fair to say, and for you to acknowledge, that this is an important part of your responsibility. Air Vice Marshal Titheridge-The whole issue, from the start of Operation Relex and eve- rything else, was a part of my responsibilities. Senator FAULKNER-Exactly. If anyone wants to suggest how minor the issue is, from the point of view of the government at the time this was top priority-particularly to make as much political advantage of it is as it possibly could at the time. CHAIR-Can I come back to my question? If the government asks you to gather information for political purposes, do you do that or do you say that is not Defence's role? Air Vice Marshal Titheridge-If the minister, CDF or the minister's staff asked me for operational information, I would pass that information on. CHAIR-There is a great story to be told here about how Operation Relex was managed professionally by the Navy. You were not asked to gather information to tell that story, were you? Air Vice Marshal Titheridge-The information we passed on all throughout Operation Relex consisted of all aspects of Operation Relex- CHAIR-No. This is a specific- Air Vice Marshal Titheridge-including the successful Navy operations. CHAIR-Yes. But what is known as the Titheridge minute-you unfortunately bear the title of it-was information that was grist for the political debate exclusively when the government was in trouble. It was not information about how the Navy performed; how Defence was handling this entire operation. It was not information that went to presenting Defence's credentials to the community as a capable force, was it? Air Vice Marshal Titheridge-How the information is used and how other people view it is for them to decide. I have no comment to make on that. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 731 Senator BRANDIS-Can I follow that up? Are each of the items in the enclosures to the Titheridge memorandum concerned with aspects of Operation Relex? Air Vice Marshal Titheridge-They are all part of it, I presume. Senator BRANDIS-They all deal with operational matters encountered in the course of Operation Relex, don't they? Air Vice Marshal Titheridge-That has been my evidence. CHAIR-I do not have time to enter this discussion-I might with some other Defence personnel-but the Commander-in-Chief of the Defence Force in Australia is the Governor- General, isn't it? Air Vice Marshal Titheridge-I think that is the title given to the Governor-General. CHAIR-But that is a constitutional title, isn't it? That is because the Governor-General represents the whole community; the government represents the government. That structure is there so that the Defence Force in a democracy serves the community and is not used for the political purposes of the government. That is what that structure is there for, isn't it? Air Vice Marshal Titheridge-I would assume so. It seems reasonable. CHAIR-It is under the separation of powers of what constitutes a democracy. Senator FERGUSON-That is not a fair question to ask the Air Vice Marshal. CHAIR-It is. Senator FERGUSON-Show us your thesis when you leave the Senate. CHAIR-It is a very fair question. If senior officers of the Defence Force are not aware of the separation of powers and the role of Defence and its relationship with the government of the day and the politics of government as opposed to the role of Defence, then it is a serious issue. It is a fundamental question for our inquiry. Do you have anything to answer on that? Are you aware of the separation of powers? Air Vice Marshal Titheridge-Yes. CHAIR-Are you aware of the role of Defence in terms of differentiating itself from political as opposed to defence focused work? Air Vice Marshal Titheridge-I am. I am also aware of the command chain. Senator FAULKNER-Could I ask very briefly, because I think the committee needs a little bit of- CERTAIN MARITIME INCIDENT CMI 732 SENATE-Select Friday, 12 April 2002 CHAIR-Can I finish off? Senator FAULKNER-I am sorry. I thought you had. I thought there was a huge full stop there. CHAIR-I have finished off on that. I have two more questions. Senator FAULKNER-I apologise most profusely. CHAIR-According to Brigadier Silverstone's evidence to this committee, you told him that you were already aware of most of his information by the time he called you at eight o'clock on 7 October-that is, you were aware of the events of the night concerning SIEV4, including the firing of the gun and the authorisation to board. That is in Hansard, page 342. How did you come to know that information? Air Vice Marshal Titheridge-I find that strange. I would have had an update the night before. It was probably about half past 10, I think, that I had last spoken to someone about it, according to the telephone logs-unless someone rang me earlier in the morning, and I have no recollection of that. I found that strange because my impression was that the first update since the previous night was the update that Brigadier Silverstone gave me. CHAIR-I have a number of questions-I will put them on notice-but let me conclude with this: in evidence to the Bryant report, Rear Admiral Ritchie reported that he had advised you by 11 October that there was no evidence to support the claim that children had been thrown overboard. Rear Admiral Smith also advised you that you had confirmed to him `about a week or two later' that you knew this-that is 11 October. Air Vice Marshal Titheridge-I cannot help you there. I think I have already addressed that with Senator Faulkner. Senator FAULKNER-I want to focus on one technical issue just for a couple of minutes for clarification. Is it true that CDF called you on 10 October to check that the photos from SIEV4 could be released? Air Vice Marshal Titheridge-I certainly saw that in Ms Bryant's report and also in the evidence. I had sent six photos across to Mr Scrafton of the unauthorised arrivals that were on the deck of HMAS Adelaide and a focus for us at that time was arranging for the movement of those unauthorised arrivals off Adelaide and onto Christmas Island because the ship was very crowded. The conditions on the ship were unpleasant-they were not geared up for that. If that call took place, the only photos I would have had in my mind were those six. Senator FAULKNER-But can you confirm if CDF called you? Air Vice Marshal Titheridge-I cannot confirm it, but it would not surprise me. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 733 Senator FAULKNER-The point of this of course is that you were, it is said, supposed to have called Minister Reith to advise him, from your point of view, that the photos could be used. Do you recall that? Air Vice Marshal Titheridge-No, I do not. I saw that in his evidence as well. As I said, the only photos that I had in my mind were the six that I had forwarded to Mr Scrafton. They were the only photos, from my recollection-without going back and having a look at it again-that had images of members of the Adelaide crew. I think CDF's evidence suggested that the clearance was in terms of whether it was possible to release photos of the crew. Senator FAULKNER-Did you check the photos-what they related to-at all during this period? Air Vice Marshal Titheridge-No. Senator FAULKNER-I hear what you say about the photographs of the deck of HMAS Adelaide; I understand that. Beyond that, it is said that, as you know, CDF contacts you and you confirm with Reith that the photos can be used. But you tell us that you do not have any recollection of that. Air Vice Marshal Titheridge-I did not see those two photos used in the press until this year. The photos were a pack issue; they were not a strategic operations issue. Senator FAULKNER-Again, given that this has got so much prominence, I find that amazing-but we will ask CDF, I suppose, about that. On one other technical point, do you agree that Air Marshal Houston back-briefed you on or after the conversation on the 8th about his conversation with Minister Reith that has received a lot of prominence? Air Vice Marshal Titheridge-I spoke to Minister Reith several times around the 8th and 9th about SIEV10. There was a lot of discussion around the 8th and 9th on getting access to the video. Senator FAULKNER-This is November? Air Vice Marshal Titheridge-This is November. I do not specifically recall Air Marshal Houston's call. I subsequently spoke to him about it. He believes we spoke about the video. I think he was less sure that he debriefed us on the minister's call. I think I would have remembered if he had debriefed me on that, and I do not. Senator FAULKNER-There are a lot of things that you have not remembered. But you do not recollect that? Air Vice Marshal Titheridge-I think that would have been significant enough for me to recall. Senator FAULKNER-So you only recollect significant things? CERTAIN MARITIME INCIDENT CMI 734 SENATE-Select Friday, 12 April 2002 Air Vice Marshal Titheridge-I am talking about issues that were going on at the time. If something had changed my mind-and that would have, if Air Marshal Houston had briefed me on it-then I would recall it, I suspect. Senator FAULKNER-Why would Air Marshal Houston's briefing change your mind when Rear Admiral Smith's briefing did not and Rear Admiral Ritchie's briefing did not? They are pretty senior in the Defence hierarchy too. Air Vice Marshal Titheridge-It just talks about information that was passed. Air Marshal Houston had just seen a message that no-one else around my area had seen, and he had got that off Brigadier Bornholt, I think. That was a message I saw a month later. Senator FAULKNER-But you do not recollect being briefed by Air Marshal Houston? Air Vice Marshal Titheridge-Not on that particular issue. Certainly on the video it is possible, because there was a lot going on with the video at the time. Senator BRANDIS-I just have one more question, Air Vice Marshal Titheridge. Are you satisfied that, in the performance of Operation Relex-including reporting up the chain of command in relation to various aspects of Operation Relex-the members of the Australian defence forces have acted in a professional and politically neutral way? Air Vice Marshal Titheridge-I am satisfied, yes. CHAIR-You do not regard your report as not having a political purpose, though, do you? Air Vice Marshal Titheridge-Are you talking about the so-called Titheridge report? CHAIR-Yes. Air Vice Marshal Titheridge-I regard that as operation information that was requested by, clearly, someone who approached the CN's office. CHAIR-Yes, and that was the minister. Air Vice Marshal Titheridge-Yes, or someone on the minister's staff perhaps. But it is up to CN to answer that- CHAIR-And we have had it demonstrated, and writ large here for the last couple of days, how political this report has in fact been. Senator BRANDIS-In your opinion, Chair-not in anybody else's, I think. You might get Senator Collins to agree with you, but she would be the only one. CHAIR-I do not expect the government to agree with me, because it serves their purpose not to. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 735 Senator BRANDIS-That is because there has been endless evidence, including from this gentleman, that the information is of operational significance, and it cannot be gainsaid that it is. CHAIR-One of the fundamentals of this inquiry is about whether the Defence Force in Australia are being manipulated for political purposes. That is a very serious issue. Senator BRANDIS-That is why I asked the question. His answer was unambiguous. CHAIR-It seems to me that, on the face of it, there is ample evidence that the department or the Defence Force has been set up on this occasion- Senator BRANDIS-You are not a witness, and not a single witness so far has agreed with you. CHAIR-We have not completed our inquiry by a long shot yet. Senator FERGUSON-Air Vice Marshal Titheridge, Senator Faulkner has been critical, at great length, of your failure to recollect certain incidents. He was also critical of the fact that you did not change your view or start to look again at this issue until 25 November. It is a fact that this was a public issue between 6 and 10 October, and it was not then a significant public issue again until 7 November. Is that the reason why-with all of the other SIEV incidents that were happening and all of the other activities that were taking place under your command-you had virtually dismissed this incident from your mind from 10 October onwards, until such time as it was raised again with you in November? Air Vice Marshal Titheridge-I think my evidence has been that I had been focusing on a lot of other things. SIEV4 was in the past. On the issue of publicity or media, I just do not factor that into my considerations. I was focused on a range of issues and SIEV4 was obviously in the past. It was a routine issue-it was not unusual. Senator FERGUSON-And by 25 November you had dealt with a number of other SIEV incidents, some of which could be considered to be far more dangerous than that which happened on SIEV4. Is that a fact? Air Vice Marshal Titheridge-There was a range of issues with all the SIEVs. I do not wish to select any particular one out. Senator FERGUSON-Senator Collins raised the issue of the time difference-it was brought to our attention but we did not have time to correct it on the record-that there was only half an hour's difference at the time. A telephone conversation, No. 94, took place at 0805 with Ms Halton, which was only five minutes after you had finished speaking with Brigadier Silverstone. Can we assume that that is the phone call when you in fact conveyed the information to her about a child or children being thrown overboard? Air Vice Marshal Titheridge-That is not my evidence. My belief is that it was an hour later. It seems more likely to me that it was an hour later when I got the call from Brigadier Silverstone, but I cannot confirm that. CERTAIN MARITIME INCIDENT CMI 736 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-In any event, do you have any doubt about your earlier evidence that the phone calls to the CDF, Ms Halton and the gentleman in Mr Reith's office, Mr Hendy, took place within a few minutes? I think you said that they took place within 15 minutes of you having had the conversation with Brigadier Silverstone. Air Vice Marshal Titheridge-If I am correct in my belief that Brigadier Silverstone rang me at around nine o'clock-I could be wrong but that seems to be inferred from the calls-then what you say is true. I cannot positively say that; I can just base it on the pattern of calls that I made, and I could be wrong. Senator FERGUSON-I have noted your list of mobile phone calls for that day, which amounted to about 43. Also, it has been suggested that you were at the races that day, which I do not blame you for. You should have had some time off after what had happened. I notice that you made 20 phone calls from the races in approximately an hour and a half, not counting any calls that may have come into you. Did you actually have time to back any winners while you were at the races? Air Vice Marshal Titheridge-This is my once a year attendance. It did not matter whether or not I did. Senator FERGUSON-I think 20 phone calls in an hour and a half is quite amazing. Senator JACINTA COLLINS-A question that I will put on notice to you, Air Vice Marshal Titheridge, relates to the identity of the receivers of these calls throughout that day. I am not at all interested in personal calls, but could you provide us with the names- Air Vice Marshal Titheridge-They are all work calls. I would not wish to have on the public record the connection of the name and the telephone number, for obvious reasons. Senator JACINTA COLLINS-It will not be on the public record. It will be on notice to us, as is this document. Air Vice Marshal Titheridge-I can actually give you that now; I have them here. Senator JACINTA COLLINS-I do not want to take up the committee's time in getting that information now. Finally, you indicated that the races were in the afternoon. Can you tell the committee why you did not attend the IDC in the morning. Air Vice Marshal Titheridge-Every now and then you have to have a break; it had been a pretty hectic month. Also, I have some very competent staff and I have all the faith in the world in them. So there is no problem with any of them attending on my behalf. CHAIR-We would like to move to our next witness, but I would like to conclude with this question. The evidence from Commander Banks of the HMAS Adelaide is that he did not transmit a message that a child or children were thrown overboard. The evidence from Brigadier Silverstone at Darwin is that he did transmit a message and that he understood that he got that information from Commander Banks. That is a contested area of argument between CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 737 Commander Banks and Brigadier Silverstone. He transmitted that message to you, and you transmitted it to the IDC and to the minister's staff. Air Vice Marshal Titheridge-And to CDF. CHAIR-The evidence is that by the 11th several officers, including Rear Admiral Smith, knew and advised CDF, or advised Rear Admiral Ritchie and others, that the allegation that a child-which became in the transmission `children', if we are to believe the evidence-was thrown overboard was not true; that it did not happen. Can you account for why the untruth got up the chain of command immediately but the truth did not? Air Vice Marshal Titheridge-I can only repeat to you my evidence of this morning: I was told by an operational commander that it had happened, that my staff had a different view and had passed what they knew on and that I saw a cable in late November which indicated to me that I needed to rethink my initial view. CHAIR-Do you regard yourself as the person that should have passed on the truth to your superiors? Air Vice Marshal Titheridge-In fact, the facts should come up through the command chain, and that is from the operational commander through CDF. That is the appropriate mechanism for all information. CHAIR-So you do not regard yourself as the vital cog in that link? Air Vice Marshal Titheridge-I do not see myself as a vital cog in that link; I see myself as a staff officer supporting CDF in his conduct of operations. CHAIR-But you were the vital cog in the link that passed the first story up? Air Vice Marshal Titheridge-I was a conduit for the initial information on SIEV4. CHAIR-You were a bit more than a conduit; you were in fact the point man to whom Silverstone had to report so that you could then report to the IDC, the minister and the CDF. Air Vice Marshal Titheridge-I accept that I was the carrier of that information. CHAIR-Thank you very much, Air Vice Marshal. That concludes your evidence at this point. There are a number of matters on notice, and we will forward them to you as soon as we possibly can. Proceedings suspended from 11.36 a.m. to 11.53 a.m. CERTAIN MARITIME INCIDENT CMI 738 SENATE-Select Friday, 12 April 2002 BARRIE, Admiral Christopher Alexander, Chief of the Defence Force, Department of De- fence CHAIR-Admiral, I understand you have an opening statement. Adm. Barrie-I do. It is a reasonably lengthy opening statement because I put it together with a view to trying to address many of the questions that will be of concern to this committee. I have copies for the committee. CHAIR-Thank you very much. Adm. Barrie-Senators, thank you for giving me the opportunity, as the Chief of the Defence Force, to appear before this select committee. Before I address specific issues, I want to refer to my role as the principal military adviser to the government. The Defence Act of 1903 describes the fundamental concept of civil authority over the Australian Defence Force. Section 8 of the act covers the powers of the minister. It specifies: The Minister shall have the general control and administration of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister. Section 9 of the act covers the command of the Defence Force and the arms of the Defence Force and the administration of the Defence Force. It states, inter alia: Subject to section 8, the Chief of the Defence Force shall command the Defence Force, and the service chief of an arm of the Defence Force shall, under the Chief of the Defence Force, command the arm of the Defence Force of which he is service chief. It goes on, relevantly, to state: It is a function of the Chief of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the Chief of the Defence Force of the Defence Force ... On administration, section 9A states: Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to: (a) matters falling within the command of the Defence Force by the Chief of the Defence Force or the command of an arm of the Defence Force by the service chief of that arm of the Defence Force; or (b) any other matter specified by the Minister. In turn, Minister Reith had set out, in general terms, his direction to the CDF and to the secretary in writing. The direction is dated 9 April 2001. Let me quote the relevant parts: Accountability: You are accountable to me for defence's performance, having regard to our statutory responsibilities. Any authorisation or delegation of my authority with respect to defence is through you, within the limitations below. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 739 Results: I expect you to deliver: A. Successful joint conduct of military operations, the CDF retaining the sole command authority; B. Provision of capability to enable our armed forces to defend Australia and its national interests; C. Timely and responsive advice; D. Proper stewardship of people and of financial and other resources, including achievement, or bettering, of budgeted operating results; and E. A defence plan for my approval incorporating the above. Limitations: you may pursue these results in any manner, as long as: A. Your actions are not imprudent, unlawful or unethical; B. Your actions are not inconsistent with- i. Government policy, ii. The secretary's role as principal civilian adviser and with his statutory responsibilities and authority, particularly under the financial management and accountability act 1997, iii. The CDF's role as principal military adviser and his statutory responsibilities and authority as commander of the defence force under the defence act 1903 ... Thus, I am clearly accountable to the minister under the act. It should not be otherwise in a democratic society. In turn, he is accountable to the parliament for the performance of his duties. Under Australian law it is not possible to delegate command authority to any person who is not a member of our armed forces. Axiomatically, it follows that, while the minister directs CDF and the secretary in their responsibilities for administration and in the exercise of command, the minister himself does not hold any command authority. In accordance with the foregoing, my role as principal military adviser is: to work with the minister, the National Security Committee of Cabinet and the government to ensure that Australia is adequately prepared to meet its defence responsibilities; secondly, to brief the government on what the ADF can and cannot do in responding to particular circumstances; and, thirdly, to ensure that the ADF is prepared to take on possible operations. As commander of the Australian Defence Force, I give the executive order for commissioning operations-that is, the authority under the law; I seek necessary approval from government for operations, including the rules of engagement; and I am ultimately responsible for the performance of the ADF on operations. I was appointed as the Chief of the Defence Force on 4 July 1998 for a two-year period. In 2000 I was reappointed for a further two years. My service in the Navy began on 31 January 1961, so I have over 41 years of experience in my chosen profession. My career has included many command and staff appointments, as well as an occasional academic opportunity and one diplomatic posting. I have served in numerous parts of the world, onshore and afloat. Every one of these positions has required-and trained-me to make professional judgments involving the evaluation of information provided to me. CERTAIN MARITIME INCIDENT CMI 740 SENATE-Select Friday, 12 April 2002 During my tenure at the top of one of Australia's most complex enterprises, I have worked with four ministers for defence and three colleagues as secretary or acting secretary. Dr Allan Hawke, as the secretary, is my colleague, and we believe that we are on the right track in preparing the Defence Force and the department to meet the challenges of the 21st century. I expect this committee will be vitally interested in operations and the command and control aspects, to which I now turn. In July this year, when I will complete my second term as the Chief of the Defence Force, I will have commanded the ADF for four years. In that time we have conducted over 60 opera- tions. All of them have been an outstanding success by any standard. Some of them have been a serious test of our capabilities and the reforms and changes put in place, particularly over the last 15 years. As at 10 October 2001 our current operations were as set out in a document that I will seek to table. There were 15 of them, as I recall. We have built up an extraordinary level of expectation that the Defence Force can do almost anything. This expectation lives in our com- munity. It lives in the minds of our parliamentarians. Our government agencies also occasion- ally think that we can do almost anything, leading to vigorous debates from time to time. It is a potential problem for me because the consequences of a failure, should it occur, would be very demanding. There are many people in our community who do not understand that this outstanding record says a great deal about the quality of the people in the Defence Force at all levels. It also says a great deal about the effectiveness of our command and control system. Frankly, we could not have delivered an operation such as INTERFET without having in place an effective command and control system, and the high quality people who make it work. I am aware that the committee has taken evidence on the command and control arrangements and the system we use, so I will place my views on the record. The matter before this committee did not involve any failure in operational performance. Quite the opposite is true, if we accept the pictures painted for us by Commander Banks and Rear Admiral Smith. What we are discussing is a failure in the subsidiary feature of command and control, namely reporting back. A command and control system is principally concerned with the deployment of forces in the execution of lawfully assigned tasks. It must comprise the means of providing the necessary authority for the use of force and the assignment of the armed forces as directed, as well as the means of concentrating the forces where they are required. It must be forward looking, having a clear perspective about what we have to do tomorrow. I acknowledge it is also about reporting back-that is, recording yesterday's and today's story. Before moving onto other matters, I want to put these operations in context because I think this is highly pertinent to our present priorities for action. In October of last year, the Australian Defence Force was committed as never before to fulfilling its parliamentary and government charter to `defend Australia and its national interests'. We were barely three weeks out from the brutal images of aircraft smashing into the World Trade Center in New York and we were about to join the launch of a dangerous mission to Afghanistan, Operation Enduring Freedom. In short, I was focused on the imminent war in Afghanistan and the urgent need to safeguard our homeland from a possible terrorist attack, the risk of which I considered real and unprecedented. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 741 As well, we were in East Timor, as we are now as part of our commitment to peacekeeping having played a major role there in the INTERFET days. We were, and are now, in Bougainville preserving the peace. And we are in Bosnia, the Middle East, Cyprus, Egypt, Sierra Leone and Solomon Islands. In addition, we were supporting as required the government's border protection policy. I emphasise `supporting'. Defence was not and is not running the government's border protection policy. That is a function of other government departments. Defence's role was as an agency directed to support a policy being formulated and implemented by other agencies, such as the departments of Prime Minister and Cabinet, immigration, foreign affairs and transport. On the night of 6 October 2001, HMAS Adelaide intercepted SIEV4. You have heard evi- dence about the sequence of events from others. I propose, for the information of this commit- tee, to summarise the communications with me. During the next 48 hours, the captain and crew of the Adelaide performed gallant work in rescuing men, women and children from the sea without loss of life. And I feel it is important for the sake of all of us, and this inquiry, to under- pin your thoughts with this one outstanding fact: no lives were lost. As the Chief of the Defence Force, my role was to evaluate all of the information and, where necessary, advise my minister by placing the information in context. This information was usually not confirmed in writing. I did not see any messages from the ship. I now want to describe actions between 7 and 11 October 2001. The first information reported to me about SIEV4 was when the Commander Australian Theatre, Rear Admiral Ritchie, telephoned me at home on the morning of Sunday 7 October. My best recollection of the conversation was that he referred to `people' having been thrown overboard. In the conversation COMAST may have referred specifically to a child or children having been thrown overboard; I cannot now remember precisely. I assumed that the information had come through the chain of command, obviously initiating with the commanding officer of the Adelaide, Commander Banks. After receiving this information I telephoned Minister Reith. My recollection is that I said to him that I had been advised by COMAST that SIEV4 had been intercepted and people had been thrown overboard. I do not recall precisely whether I said `people' and/or `children'. I certainly said `people'. He told me that he already knew about this. He gave me to understand he had already spoken with Minister Ruddock who had received this information from the task force. My very clear impression from the conversation was that he already knew as much or more about the event than I did. I also said to him that, as people were in the water, my priority was saving life. Later that day I was advised-I think by the Head of Strategic Command division, Air Vice Marshal Titheridge-that everyone was safely rescued. The detail of how they came to be in the water was not raised. On the night of Monday, 8 October COMAST telephoned me to advise that SIEV4 was sinking, life rafts from HMAS Adelaide were in the water and there was an operational emergency. Over 200 people would need to be rescued from the water. I was also advised that the Commanding Officer of Adelaide had called for urgent assistance from Christmas Island. Shortly thereafter I had a telephone conversation with Mr Max Moore-Wilton, secretary to the Department of Prime Minister and Cabinet. He told me to make sure that everyone rescued went on board HMAS Adelaide. I said to him that we could not guarantee that and safety of life was to be the paramount consideration. In this emergency, if people had to be rescued and landed at Christmas Island that would have to happen. CERTAIN MARITIME INCIDENT CMI 742 SENATE-Select Friday, 12 April 2002 The CO had already called for urgent assistance from the island from whatever assets were available. It was for the commander of the Adelaide to make the call. After that call I immedi- ately telephoned Minister Reith and told him of this discussion. The Minister said my approach was appropriate. Towards midnight I was advised that the rescue had been successful and that everyone had been saved. On Tuesday, 9 October I attended a weekly intelligence briefing. The topics included the war in Afghanistan, the responses in our region to the United States opera- tions there and other matters. SIEV4 was not discussed. On 10 October, in the afternoon, Minister Reith telephoned me about the release to the media that afternoon of certain photos that he had in his possession. I told him that I had not seen any photographs. But, because the operation with SIEV4 had been successfully concluded, I could see no reason why photographs should not be released into the public domain, subject to a security check by the Head of Strategic Command Division that the identities of ADF personnel involved were not compromised. I then telephoned HSCD about the minister's requirements and tasked him to vet the photographs and advise the minister appropriately. On the night of 10 October COMAST telephoned me at home about the minister's appearance on the 7.30 Report, which I had not watched. He told me that the minister had released some photographs but had connected them to the wrong events. He said that the minister had connected the photographs to children being thrown overboard on 7 October when they did not relate to that event. That night I also received a call from the Chief of Navy, Vice Admiral Shackleton, who gave me the same information as COMAST. The following day I had a telephone conversation with Minister Reith about photographs. 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. It concluded with an agreement between us that never again would we discuss photographs without ensuring that we both had the same photographs in front of us. Later that day I was telephoned by COMAST. My recollection of it was that he told me that there were now doubts about whether children were ever thrown overboard. I do not remember his being more definite than that. I recall that he 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. I also said to COMAST there was obviously confusion about what took place. I directed COMAST to ensure that while this was fresh in everyone's mind that witness statements and any other evidentiary material should be collected. Before HMAS Adelaide departed for the northern Arabian gulf later in the month, I recall checking to see whether this had been done. I was advised that the material was assembled and was being held in Perth. On 25 October, I went to East Timor for a short visit. On 29 October, I went to Singapore and Malaysia and then Hawaii before returning to Australia on 10 November. Prior to my departure, and possibly on 17 October, I had a conversation with the minister in which I informed him 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 SIEV4. 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 CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 743 initial report to me was wrong, I would stand by it. As at that date, no further evidence had been provided to me. Prior to my departure overseas, I do not recall the issue being raised with me otherwise either within the Australian Defence Force or by the minister, nor do I recall the issue being raised specifically in the media or at the press conference when the Prime Minister announced Austra- lia's commitment to the war against terrorism. Nor do I recall the issue being raised formally or informally in the course of a few meetings with, and briefings that I provided to, the then Leader of the Opposition. I would like to now cover the period from 10 November to 28 February. I returned to Australia from Hawaii on Saturday, 10 November, following my attendance at a chiefs of defence conference and discussions with the United States Commander-in-Chief Pacific and the Chairman of the United States Joint Chiefs of Staff. It was the same day as the election. On Monday, 12 November I spoke briefly to Air Marshal Houston about a range of matters, some of which had arisen while he was the Acting Chief of the Defence Force. He ceased to be the Acting Chief of the Defence Force on 8 November, when General Cosgrove took over. I resumed this duty from the latter on 10 November. Among many other things, we discussed SIEV4. He briefed me about Vice Admiral Shackleton' s media statements on 8 November. He also mentioned that on the previous day he had advised Minister Reith that, in his opinion, children had not been thrown overboard. Our conversation on this latter issue was brief. We did not discuss the basis of his advice to the minister. As a result of what Air Marshal Houston told me and my doubts about what had in fact occurred, I decided to commission an inquiry to establish the facts and see if any corrective action was needed. Although Major General Powell' s terms of reference were finally settled on 20 November, the necessary steps to begin the process began on 14 November. Around this time, I became aware that the Department of the Prime Minister and Cabinet was intending to undertake its own inquiry, headed by Ms Bryant. Major General Powell handed his report to me on or about 17 December. We had a conversation in which he briefed me about the principal findings, recommendations and qualifications in his report. He did not specifically refer me to any of the voluminous documents in the enclosures. He did not refer me to enclosure 33, which I now know to be the 10 October signal report from the CO of HMAS Adelaide. Based on that briefing and a reading of the text of the report, I made the judgment that before analysing the evidence and dealing with his recommendations I would await the Bryant report. This report would also be covering many of the issues, and was expected by late December. I thought the most efficient and reliable way to get to the bottom of things was to have the benefit of both reports and the entirety of the evidence upon which they were based. To ensure that Ms Bryant was familiar with the results of Major General Powell's investigations and his findings, I sent a copy to the Secretary of the Department of the Prime Minister and Cabinet. On 7 January 2002, I left Australia to meet up with Minister Hill on an official visit to the United States, the United Kingdom and the northern Arabian Gulf. The Bryant report had not been completed, and its completion date had slipped until later in January. On 17 January, the minister and I visited HMAS Adelaide on operations in the northern Arabian Gulf. We were CERTAIN MARITIME INCIDENT CMI 744 SENATE-Select Friday, 12 April 2002 accompanied by our national Commander of Operation Slipper, Brigadier Gillespie, to be briefed on multilateral interception force operations. The sole purpose of the visit was to show our minister the kinds of operations we were undertaking in the gulf. I understand that Commander Banks has said in evidence to this committee that there was a conversation between him and me during the briefing on board Adelaide about boarding opera- tions of SIEV4. As part of informing the minister about the range of boarding operations that ADF people carried out, I had asked him to explain briefly to the minister the difference be- tween these operations and Operation Relex boardings. He inquired whether I wanted a full de- scription of what happened with SIEV4. I want to emphasise that when he asked that question he did so in a normal way that would have been heard by all those present. As the focus of the briefing was on boarding operations in the gulf, I did not think it was necessary to go into too much detail on the SIEV4 operation but rather to point to the significant differences in the two operational requirements. I can assure the committee that the issue of whether or not children were thrown overboard was not uppermost in my mind. I returned to Australia on 19 January and departed on leave overseas on 27 January. The Department of the Prime Minister and Cabinet did not inform me that Ms Bryant had concluded her report prior to my departure. So far as I am aware, that report was received by the secretary of that department on 24 January 2002, and it was not otherwise distributed until its release into the public domain on 13 February, when it was tabled in the parliament along with the Powell report. I returned to Australia on 19 February and appeared at the Senate legislation committee hearings on 20 February. In the course of the Senate legislation committee's hearing, I became aware of, and read for the first time, the message from the CO of Adelaide of 10 October 2001. That was not the only message shown to me in the course of the hearing. I was also shown and read other messages that appeared to be contemporaneous with the events of 7 October and which referred to man overboard reports and SUNCs jumping or being thrown overboard. The committee will be familiar with these messages. Hence there was an obvious discrepancy between what the CO was reporting in writing when the events were occurring and his message of 10 October, which was obviously a reconstruction of events some time after the events had taken place and was not a transcripted log. Moreover, having read the message, there were many questions I wanted to ask the CO which had not been asked by Major General Powell, who had not been able to interview the CO or crew of the Adelaide, and which Ms Bryant may not have asked. By way of example: how certain was the commanding officer that the numbers rescued from the sea necessarily matched the numbers on board the vessel? To put the matter shortly: how could he be sure no-one had drowned? Had HMAS Adelaide been able to keep SIEV4 under 360-degree surveillance? When the CO's messages referred to SUNCs overboard, was that meant to be a reference only to adults? What led the CO initially to provide information both orally and in writing that he said days later was erroneous? Was there any prospect that the firing of warning shots towards the vessel had been mistakenly seen as firing at the vessel by asylum seekers on board the SIEV? These were all matters about which I wanted to be satisfied before I was prepared to conclude that the initial report to me should be regarded as wrong. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 745 The very process this committee has undertaken in the past few weeks indicates the difficul- ties in understanding what really happened. When I left the Senate legislation committee hear- ings, I was acutely conscious that I would have to determine absolutely one way or another within a short space of time whether or not children were thrown over the side. Over the week- end, I read through the material available to me to see whether it was sufficient to answer all my queries about what had happened. In particular, I wanted to be satisfied no-one had drowned. As the material did not satisfactorily resolve all the issues in my mind on the evening of Sunday, 24 February 2002 I arranged through Maritime Command in Sydney for the ship to telephone me. I then spoke to Commander Banks. We discussed the events of 7 October 2001, and he informed me that he was sure that no child had been thrown overboard. I questioned him closely to test the basis for his assurance. On the basis of this conversation, which put to rest the concerns that I had about the written material, I was convinced that, despite the initial reports to the contrary, in fact no child had been thrown into the water from SIEV4 on 7 October 2001. I called the Prime Minister immediately. I informed the Prime Minister of my conversation with Commander Banks. I said to him that I was now persuaded that no child had been thrown over the side from SIEV4 and that I would have to make that information available to the public. The Prime Minister thanked me for the advice and added that he understood the difficulty that this would present for me. On Monday, 25 February I discussed the outcome of my call to Commander Banks and the consequences with Minister Hill. On Monday and Tuesday I conducted two more intensive days of inquiry in conjunction with my service chiefs. This led me to convene a task force to follow up the communications gaps and other matters our own inquiry had revealed. During this process we received a brief from Air Commodore Ekin-Smyth about the management distribution of digital images associated with this incident. On Wednesday, 27 February I went public with my advice to the government, first to the Defence leadership at our senior leadership conference and then to the media at a press conference. At the press conference, I also announced the establishment of a high-level task force headed at two-star level so that we could get answers about the problems we had and put in place solutions to them. This is an ongoing activity and I anticipate that the task force will not complete its work until the secretary and I are satisfied that a problem such as this cannot recur. Turning now to public affairs: in Senate estimates I was asked about the importance of correcting the public record in this situation and whether Defence had failed in its attempts to do so. I can confirm to you that, by direction emanating from the former minister's office, no member of the ADF, myself included, could make any public comment on Operation Relex, of which SIEV4 was a part. That direction was incorporated in the public affairs plan for Operation Relex. There have also been many concerns about the prescriptive and restrictive nature of the defence instruction DI(G) admin 08-1, which relates to public comment by military personnel. With the support of the present defence minister, this instruction has been revised and has been reissued. Major General Powell, in his report to me, recommended: ... there is scope to review the command structure of the Defence public affairs and corporate communication division to ensure that an appropriate mix and level of both military and command and corporate communication skills are positioned in the clearance chain that sees sensitive operational information, be it written or pictorial, released to external sources. CERTAIN MARITIME INCIDENT CMI 746 SENATE-Select Friday, 12 April 2002 In response to this recommendation, as an immediate step public affairs staff are to be embed- ded into the strategic command watch-keeping system. This integration will enable the coordi- nation of public affairs issues with the management of operations. This action is intended to ad- dress the problems of multiple information sources and inconsistencies in response to requests for operational information by the minister. At present, we also have under consideration a pro- posal to significantly enhance the military component in defence public affairs. We have put in place elaborate procedures and safeguards relating to photographic- especially digital photographs-and other visual material collected by Defence. This process will prevent images being separated from identifying data and also prevent manipulation of these images. It has also emphasised the importance of due process in managing any material that could be evidentiary in nature, as well as the public affairs aspects. It is important for me to deal with the important issue of politicisation of the Australian Defence Force. I reject the allegation that the Australian Defence Force has been politicised. It is our duty to serve the government of the day and to carry out its directions about the use of the Defence Force to the best of our ability. Provided, of course, that any requirement given to us is lawful, as CDF I must execute the directions I have been given. In my experience, whatever its political persuasion, the government of the day wants its Defence Force to go about its duty apolitically. This is a key reason why bipartisanship on critical defence matters is so important. While I am on the subject of politicisation, I advise the committee that I have instructed the head of my task force to implement all the recommendations of the Powell report bar one. The recommendation that we place a senior military officer in the ministerial office is, in my view, quite flawed. That step would lead to a politicisation of the military. I am also conscious that this view is shared by experienced former ministers from both sides of the House. Next I want to deal with the allegation that, as CDF, I have allowed myself to become politicised. To the contrary: I regard my role as apolitical but, subject to my obligation under the Defence Act, faithfully and with complete integrity to serve the government of the day, whatever its political persuasion. As I have said before, this is essential to the functioning of our democracy. Because the allegation has been made, I want to emphasise the priority I place on the need for impartiality. In reality, this need extends to having good working relationships with our country's political leadership. In this regard, I want to place on the record my own relationship with the former Leader of the Opposition. I saw him formally and informally on a number of occasions during the election campaign. I would summarise that my relationship with him was as sound as it was with any of the four ministers of defence I have served as the Chief of Defence Force. I did not receive direction from any minister, or anyone else for that matter, to ignore or not follow up on the issue of whether children had been thrown overboard from SIEV4. Finally, looking ahead, like any organisation, Defence makes mistakes but it learns from them. It cannot be otherwise or we shall be too busy preparing for the last war when the next one strikes us. We shall put in place every sensible measure designed to ensure that we do not repeat the problems we are confronting on this occasion. In many respects, of course, the types of operation we are carrying out for border protection are quite different from the classical military problem of dealing in conflict. As senators will know, we place a great deal of CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 747 emphasis on the belief that if we train hard for war fighting then we will build outstanding capabilities for peacekeeping. But a border protection operation is different-even from peacekeeping. First, we do not make the policy in the defence department. We are, in effect, a tool of government tasked to carry out policies decided elsewhere. I have made this point already. Second, it is highly likely that our ability to use force will be even more circumscribed than it is in peacekeeping. I think that it is vital that we learn to manage the public affairs and media management aspects of bor- der protection operations better. We are presently deployed on conventional military operations in Afghanistan. We are on the record as articulating that in the 21st century we must begin pre- paring ourselves to deal with subnational conflict, transnational crimes, protection of humani- tarian operations and a range of other less conventional operations. Indeed, when I review the operations we have conducted over the past 10 years, I can see a discernible trend in this direc- tion. We are looking to this inquiry to deliver for us something positively. If the Australian De- fence Force of tomorrow is going to be adequately prepared at all levels to match the perform- ance of its people at the coalface, then we must remedy our failures over the SIEV4 incident and move on to test and evaluate the new procedures we put in place. Before I close, I want to publicly acknowledge the outstanding professionalism of the men and women of the Australian Defence Force. Australia ought, rightfully, to be proud of its youth. Secondly, I wish to acknowledge the outstanding support I have received consistently from the Vice Chief of the Defence Force and the Chief of Navy, Chief of Army and the Chief of Air Force. Proceedings suspended from 12.34 p.m. to 1.10 p.m. CHAIR-If people will take their seats, we will commence in a moment. Adm. Barrie-Mr Chair- CHAIR-Just a second, Admiral. Adm. Barrie-As part of my opening statement, I volunteered to table a list of ADF operations as at 7 October. I seek leave to do so, and secondly I seek leave to publish my opening statement on the Defence net so that my people can have access to it. CHAIR-In both cases leave is granted. Senator BRANDIS-Could I ask you about a typographical matter in your statement on page 21? It refers to boarding operations in the Gulf. Perhaps I misheard you, but when you read that statement I thought I heard you say not `in the Gulf' but `on SIEV4'. Adm. Barrie-I think I may have. I was aware that this text was only put together a short while ago. Senator BRANDIS-I just want to know whether that was a deliberate correction or whether you want to make it clear that the statement bears that amendment. Adm. Barrie-No. It is true to say that the text as it is there is right. CERTAIN MARITIME INCIDENT CMI 748 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-Thank you. CHAIR-In that case we would normally have taken it that the correct text is as was delivered. The Hansard needs to show that correction. Thank you for that, Senator Brandis. Senator FAULKNER-Could I just take you to a number of events. I will minimise the number for everyone's benefit, if I can, some of which you have dealt with in your opening statement, some that are well known and some that have been canvassed previously. The first I want to go is to the Strategic Command report. I asked Air Vice Marshal Titheridge about this this morning. This is the op Gaberdine op Relex 0800 brief, HSC 001/1109. This came to my attention because it is appended to Group Captain Walker's submission to the Powell report. You are one of those to whom that particular report was sent-CDF. Adm. Barrie-Yes. Senator FAULKNER-I do not know what the procedures are in your office, but, given the nature of that report, I think its significance-as I was pointing out to Air Vice Marshal Titheridge-is that it does not even mention children. It was a Strategic Command brief at that time. I wonder if you recall having had an opportunity at the time-we are obviously talking now many months ago-to note that report that included CDF on its distribution points. Adm. Barrie-I have not conducted a full search of my office to determine whether or not I had seen it. I ought to explain that I am in the habit of initialling reports that I do see, so that there is a record of whether or not CDF saw it. I am advised that I was not given this report to read. Senator FAULKNER-So it comes into CDF's office but one of your executive officers or support staff- Adm. Barrie-The normal process is that there is a vetting procedure about information that gets passed through to me. Quite clearly, everybody thinks CDF's office is a parking lot for anything they want to say, so it is vetted by the staff and then the material is given to me to read. I then initial it and then it is recorded. Senator FAULKNER-With something as significant as that, would you expect a staff member to indicate the fact, given the notoriety of the incident, that children were not mentioned in it-appreciating the fact that this may not go to your desk for initialling? Adm. Barrie-I expect the staff to be aware of what are the key issues in CDF's mind and I anticipate that they go through the material and decide for themselves what the CDF needs to see, what the CDF does not need to see or what CDF might need to see some days later. I think that is the process that goes on. That is a sense of priorities which is exercised. The way we establish those priorities is fairly informal; that is to say, I try to share with my chief of staff what is in my mind, what my thoughts are, so that he can then determine how the priorities are assigned. Senator FAULKNER-I do not know if it is possible or not but I think it might be useful to understand that background if you would not mind taking that on notice. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 749 Adm. Barrie-We can certainly check and see. Senator FAULKNER-It is clearly a direct contact with your office that has relevance to this event. I accept the fact that it may not have come to your desk, of course, but I think it might be valuable for the committee if you can ask someone to check the processes; that would be useful. One thing that is quite clear by the morning of 10 October is that you do have a discussion with Rear Admiral Ritchie where he tells you that he is `convinced that the incident'-and I interpolate here that the incident referred to obviously is children overboard-`had never occurred'. Can you indicate to the committee that that conversation did take place and what the consequences of it were? Adm. Barrie-I think the conversation you refer to is on 11 October, and we certainly had a conversation along those lines. 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: you will understand from what I said and, it follows what I said in estimates, that 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 he wished to, and at no time did he. Senator FAULKNER-I think that what happens on the 10th is this. I will try and encapsulate it as I understand it. Rear Admiral Smith tells Rear Admiral Ritchie that he is convinced that the incident never occurred. Rear Admiral Ritchie says-I am paraphrasing here-that he will convey this information to you, CDF, and Rear Admiral Ritchie rings Rear Admiral Smith back to say that he had done that. Adm. Barrie-Yes. Senator FAULKNER-So it is that communication that I am referring to, which I may have expressed quite inelegantly a moment ago. Adm. Barrie-No, I do not dispute that those conversations took place. I guess the issue for me is that, having offered the opportunity for somebody to come back and persuade me authoritatively otherwise, that did not occur. Senator FAULKNER-Yes. But you make the point in relation to later on, and I think it is around 7.45 p.m. on the 10th, Rear Admiral Ritchie calls you and tells you the photos are not of the children overboard incident. That is Rear Admiral Ritchie's evidence previously. I do not want to get my dates wrong here, but I think that is 10 October 2001 at approximately 7.45 or 8 p.m. Adm. Barrie-I think there are two separate issues that we talked about. One was the content of whatever Minister Reith said on the 7.30 Report. My recollection of that is that I was CERTAIN MARITIME INCIDENT CMI 750 SENATE-Select Friday, 12 April 2002 working in the study on a range of other things when Rear Admiral Ritchie called me to say that he had just seen the 7.30 Report. He said, `The minister has just put out photographs, and he has portrayed them as being children overboard photographs.' He said, `I do not think they are of those events on 7 October.' So that was one set of discussions. That call was then followed up, I think, within an hour by Vice Admiral Shackleton, making exactly the same points. The following day, though, we had two conversations. One was about the follow-up to those reports, but a second element of the conversation was that the event itself did not occur at all- or there were doubts that the event itself occurred. So, on 10 October my recollection is that we talked about what the photographs were supposed represent or not represent; and on 11 October, whether or not children were thrown overboard. Senator FAULKNER-I appreciate that. So we have the Strategic Command report, which may not have come to your desk, and the indirect evidence, if you like, from Rear Admiral Smith with the contact with you via Rear Admiral Ritchie and Rear Admiral Ritchie's response to Admiral Smith. We know that. As you rightly said, you have then the direct contact between Rear Admiral Ritchie and yourself effectively immediately after the 7.30 Report on that evening. Then, of course, you have also got the contact with the Chief of the Navy. That is quite direct contact with you as CDF, which you do not dispute, about concerns about two things: whether the incident occurred and whether the photographs depicted the incident. Would that be a fair summation of the situation? Adm. Barrie-No, not on that night. On the night of 10 October, there was no discussion about whether or not the incident itself occurred; it was about what the photographs were meant to portray. The discussion about whether the incident itself occurred was on the following day. Senator FAULKNER-The broader question of the incident is the exchange between the two rear admirals-Smith and Ritchie-and the interface of that with you. That is not, in the first instance, a discussion about photographs; that is a discussion about concerns about the incident-as I understand the evidence that has been given by both those gentlemen. Adm. Barrie-That may be so. That is, of course, for them to say, but in terms of my discussion with Rear Admiral Ritchie, that was how the events unfounded. Senator FAULKNER-Yes, but Admiral Smith says that he had received confirmation of that from Rear Admiral Ritchie. I appreciate that, in relation to the Smith-Ritchie conversations, you are not, obviously, a first party, but if there is a conversation between Rear Admiral Ritchie and yourself and an acknowledgment to Rear Admiral Ritchie from you, obviously, you are. And, of course, the contact with Vice Admiral Shackleton is a direct contact on the issue. Adm. Barrie-Yes. Senator FAULKNER-Thanks for that. You indicated in your opening statement this morning-on page 15-that you had a telephone conversation with Minister Reith about photographs. Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 751 Senator FAULKNER-And you did this with the benefit of the advice that you had received the evening before from both Vice Admiral Shackleton and Rear Admiral Ritchie. I think that is true? Adm. Barrie-That is correct. Senator FAULKNER-So you had that particular telephone conversation with the minister-I am not clear when that took place but you made it clear that was sometime on 11 October. I do not think that is new; I think that we understood a conversation had taken place at some point. You indicated in your opening statement today that you told the minister you had been advised that the photographs he had put out did not describe the events he portrayed on the 7.30 Report. In relation to that conversation you had with the minister on the telephone, how long did it go? You indicated that you recall the conversation was testy. Why was it testy? What was testy about it and what do actually mean by `testy'? Adm. Barrie-That is not a question I can answer entirely, except to say I think the minister- Senator FAULKNER-Do you mean he was testy? Adm. Barrie-The minister was being quite emphatic about his requirements-if that is the right way of putting it. I guess it was a conversation in which I would say that ministers give directions and CDFs give advice. Senator FAULKNER-So you are saying that the minister was testy in this conversation. Did you believe that you were just putting the facts, as you knew them at that stage, before the minister? Adm. Barrie-I think that the minister was annoyed because there had been a stuff-up on photographs. Senator FAULKNER-Was he annoyed with you; was he annoyed with Defence; was he annoyed with himself? Adm. Barrie-That is not a question I can answer. He certainly was annoyed. Senator FAULKNER-But you were left under absolutely no misapprehension that he had a concern. Adm. Barrie-I think that is correct. Senator FAULKNER-The reason I ask this is that, if-to use your words, which I think are reasonable ones-the minister realised there was a stuff-up, he knew from his most senior Defence adviser from that point onwards that there was a problem. You are not under any misapprehension about that, are you, Admiral Barrie? The minister knew, from the time he received directly a phone call from the government's most senior Defence adviser, there was a real problem with these photographs. CERTAIN MARITIME INCIDENT CMI 752 SENATE-Select Friday, 12 April 2002 Adm. Barrie-That is correct. The conversation itself concluded with us making the agreement about the management of photographs. The conversation never went at any point to what was going to be done about it. Senator FAULKNER-We will get to the management of it, but I think it is important to understand that as the events progressed you were under no illusions, and he was under no illusions, from that point on that direct contact had been made from the highest possible Defence source that there was a real problem here with the photographs. Adm. Barrie-That is correct. Senator FAULKNER-Unfortunately, you would be well aware that on very many occasions in the public arena Mr Reith made no comment that those sorts of concerns had been expressed to him, let alone from the most senior officer in the ADF, right through the conduct of the federal election campaign. Adm. Barrie-Senator, I do not have a complete record of everything that Minister Reith said in the public domain over that period. Senator FAULKNER-I do not have it yet, but I am getting there. Adm. Barrie-I have asked for it. I do not know what he may or may not have said on what occasion and when. So I cannot confirm or deny that. Senator FAULKNER-Fair enough. I accept that. I do not expect you carry around in your back pocket every transcript of the minister's media performances. But I know, Admiral Barrie, that you would keep, and Defence would keep, a weather eye on it-and I am not critical of that. Of course that is the way it works, isn't it? Adm. Barrie-Of course. Senator FAULKNER-Of course. And responsible officers in Defence are keeping a weather eye on this issue because it is very prominent in the public arena. So I think it is fair to say that, given the unqualified nature of the advice that you provided to him and the fact that it seemed to be testily or very frostily received, the minister is under no illusions about its signifi- cance, particularly in the context of what is happening in the political arena. I know that is not your priority but for some of us sitting around the table, and also ministers for defence, it is a priority. You would appreciate those sensitivities. Adm. Barrie-I appreciate the sensitivities, but of course it is an answer that only the minister himself can give. Senator FAULKNER-I have to ask you, Admiral, because, as you would probably know from reading some of the press transcripts and press coverage, the minister is very reluctant to come. So, when you have a conversation with the minister, I do not know whether I will be able to ask Minister Reith. This committee has invited the minister to attend. I hope he accepts that invitation, which we have pressed with him, but he might not. So perhaps my best chance of really getting to the bottom of this is to ask you. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 753 Adm. Barrie-I think, Senator, that I have helped you as much as I can. Senator FAULKNER-You are here, and the minister has certainly indicated publicly that he does not want to come. You talk about management, and I thought it was an interesting approach to management. The approach to management basically is to have an agreement that you will never discuss the thing again, isn't it? Adm. Barrie-Not without making sure we were talking about the same material. Senator FAULKNER-And do you ever discuss it again? Adm. Barrie-On photographs? Senator FAULKNER-Yes. Adm. Barrie-Only in the context of advising the minister the week later about the doubts. Senator FAULKNER-Yes. And that is the only other discussion you have had? Adm. Barrie-I think so. Senator FAULKNER-Again, you know and you understand why I ask you this and why I may not be able to ask Minister Reith these very questions. We also have a situation where, on 11 October, you got a phone call from Rear Admiral Ritchie. He told you that Hampton from the minister's office had told Brigadier Silverstone he wanted to speak to Banks about the `children overboard' matter. Are you aware of that communication? Adm. Barrie-I seem to recall that, yes. Senator FAULKNER-Rear Admiral Ritchie actually told you that he refused to give per- mission to Hampton to call Banks directly and that Banks had been informed that evidence should go through the chain of command? Adm. Barrie-I think that is correct, yes. Senator FAULKNER-That is appropriate, wouldn't you say? Adm. Barrie-Yes. Senator FAULKNER-Absolutely appropriate in fact. Do you recall Rear Admiral Ritchie telling you that he had spoken to Minister Reith and told him that the photos were not of the 7 October SIEV4 incident-that is, the `children overboard' incident-and that there was probably no evidence to support the `children overboard' claim during that conversation? Adm. Barrie-No. CERTAIN MARITIME INCIDENT CMI 754 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-What Rear Admiral Ritchie of course says in his submission is, `The CDF said that he had advised the minister and the minister had agreed to drop the issue.' Is that a fair reporting of at least part of that conversation? Adm. Barrie-Yes, I think that is right. Senator FAULKNER-And I think it does accord with evidence you have given previously and with the opening statement you gave today. That would be fair, wouldn't it? Adm. Barrie-I think that is right. Senator FAULKNER-There is also the situation where Brigadier Bornholt receives the HMAS Adelaide signal from Headquarters Australian Theatre on 11 October at 12.16. That is by email and dated 10 October. Are you aware of that background? Adm. Barrie-I think that was part of the evidence in the estimates committee. Senator FAULKNER-What happens is that Brigadier Bornholt tells your chief of staff that he had received `a chronology and that has indicated that there were no women or children in the water'. Are you able to confirm that your chief of staff received that information from the brigadier? Adm. Barrie-I think you would have to ask the chief of staff that. Senator FAULKNER-I thought you may have checked it with him. Adm. Barrie-I have. I think he would not say it precisely in those words. Senator FAULKNER-Could you just report to the committee what you think is a fair reflection of the opinion? Adm. Barrie-I think he is a bit concerned that that indicates a more positive action on Brigadier Bornholt's part-and these would be my words-in thrusting this message in front of him, as opposed to what really occurred. Senator FAULKNER-I understand the point you make about thrusting the message in front of him. A copy of the signal is provided and it may be thrust in front of him, the point of this being the signal is in black and white, isn't it? It is a written message. You are making the point to me, I think, that your chief of staff is receiving this advice strongly. That might be because Brigadier Bornholt was testy like the minister-I do not know. Adm. Barrie-Again, I think it would be better if the chief of staff answered for himself, but my understanding is that on one hand Brigadier Bornholt, as he is trying to indicate, thrust this message in front of us. I am given to understand that in actual fact it was done in quite a different way from that, and no particular attention was drawn to it other than it being a piece of information. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 755 Senator FAULKNER-I will take you to your opening statement again. On page 16 you talk about the conversation you actually had with the minister. You say: Prior to my departure (and possibly on 17th October)- I am sorry, I should have qualified that `possibly on 17th October'- I had a conversation with the minister in which I informed him that I had been told by CN and COMAST there were doubts about whether children had ever been thrown over the side of SIEV4. I said to him the doubts seemed to be based on what the photographs showed or did not show, and an inconclusive video. So, again, you have a direct communication with the minister-is that right? Adm. Barrie-That is correct. Senator FAULKNER-And again you express doubts to the minister about this issue? Adm. Barrie-That is correct. Senator FAULKNER-But you do actually raise the question of photographs, although I am not sure whether you and the minister had the same photographs in front of you. Adm. Barrie-I am quite hazy as to whether this was 17 October or what day it was. My recollection is we were not in our offices. We were actually together walking somewhere. I traversed this with him. We are not talking about, in my view, the photographs he had in his hand on the day of 10 October. What I am talking about is the collection of photographs that was now held by the ship or held by other people and which pertained to the entire events of 7 and 8 October. Senator FAULKNER-But still it is a direct contact with the minister, and you take the initiative in this-don't you? Adm. Barrie-Yes, I did. I thought it was important that the minister knew about these is- sues. Senator FAULKNER-Exactly, you take the initiative. So you think the doubts are serious enough to warrant you raising them with the minister in a phone call? Adm. Barrie-No, it was not a phone call. That was actually when we were together. Senator FAULKNER-I am sorry, I just assumed that it was a phone call. So that was a face to face meeting? Adm. Barrie-Yes, face to face. Senator FAULKNER-The reason I jumped to the conclusion that it was a phone call is that you did not know the date. CERTAIN MARITIME INCIDENT CMI 756 SENATE-Select Friday, 12 April 2002 Adm. Barrie-We were together on many occasions over this period, not in association with these matters but, in my view, with much more important things. I had this conversation with the minister. I did not recall that conversation when I put in my submission to the Powell report, but I do have a recollection of us being together and walking in the sun, and I raised this issue with him because I thought he ought to know about it. Senator FAULKNER-Fair enough, Admiral. I assumed it is a phone call because of your uncertainty about the date. I understand now. So it is important enough for you to raise with the minister in a face to face meeting that you have with him. Adm. Barrie-Yes. Senator FAULKNER-Why is it so important? Adm. Barrie-Because I regard it as my duty to keep my minister informed as to anything that is significant associated with my command of the ADF. Senator FAULKNER-But if it is important enough to do that, is it important enough for you to ensure that these concerns are checked further within Defence. I understand why you raise it with the minister but, if it is important enough to do that, why not go further? Adm. Barrie-I think that, in 20/20 hindsight on this whole issue, if you were to ask me is there something think I should have done that I did not do, 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 have resolved it and reported back. Senator FAULKNER-Nevertheless, that does not happen. But on 17 October you raise it with the minister. Can I ask this: given the significance of this in the political context-and by that I mean this is now occurring slap-bang in the middle of an election campaign-and given the application of the caretaker conventions, did you give any consideration to raising it with Mr Beazley, because you properly point out in your opening statement that you had some discussions with Mr Beazley during the campaign? I was travelling with Mr Beazley; I am well aware of that, as you know. Adm. Barrie-No, not at all. This was not uppermost in my mind. A lot of this getting to- gether with people was associated with our potential commitment in Afghanistan. The date of 17 October was indeed in the same week that I think those announcements were made and the briefings occurred. Quite frankly, we had a lot of concerns about the discontinuities created by the events of 11 September and what the future might hold for us. I had a huge amount of con- cern about would Australia now get itself into another Vietnam War and, if that were to be the case, what are the safeguards I needed to have in place to make sure that would not happen to us-and on and on. I had Air Marshal Houston flying around the Middle East looking for bases for troops. It was just a very frenetic period. So this was not uppermost in my mind. This was an issue that was over. But I did appreciate, because I regarded it as my duty to keep my minister fully informed- CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 757 Senator FAULKNER-Just to be clear on this, when Brigadier Bornholt raises this matter, thrusts the signal if you like in front of your chief of staff, do you hear from your chief of staff about the brigadier's concerns? Adm. Barrie-No. Senator FAULKNER-So there are a number of occasions when this is drawn to your attention, there are two occasions when you directly addressed this issue with the minister. Adm. Barrie-Yes. Senator FAULKNER-On the first occasion you decide on the management approach of not talking again about this unless you both have the same set of photos in front of you. Adm. Barrie-And that was a photograph management issue, not an event management issue. Senator FAULKNER-Was the 17 October face to face discussion a photograph management issue, an event management issue or both? Adm. Barrie-No, that was an event management issue. He just needed to know that these doubts had been raised and what I had done about them. Senator FAULKNER-You asked yourself, I suppose, a hypothetical question that you thought I might ask you about how you might respond to this in retrospect. Would you accept that you were told on a number of occasions that children were not thrown overboard and that the photographs that had been published did not depict that event? Adm. Barrie-Yes. Senator FAULKNER-In that circumstance, given that you had had that information-and those matters had been drawn to your attention in the way they were-do you think, beyond what you said to us a moment ago, that you should have taken other action before February to adequately inform government of what had occurred in this incident? Adm. Barrie-No, I would not say so. To go back to it, if I had directed Rear Admiral Ritchie to get to the bottom of the issue and make a positive determination one way or the other, in my view that issue would have been resolved within a few days and then I would have reported to government. Senator FAULKNER-Could you indicate to the committee what you did do to ascertain for yourself-in other words, to satisfy yourself-what actually happened? Admiral, you would recall that I asked you a number of questions at the Senate estimates committee hearings some time ago about this matter. You told the committee at that stage your view of how important it was to rely on the commander on the spot, which was Commander Banks on HMAS Adelaide. What action did you take to ascertain for yourself what the views of the commander on the spot were? Was that adequate? CERTAIN MARITIME INCIDENT CMI 758 SENATE-Select Friday, 12 April 2002 Adm. Barrie-I did not take any special steps to find out. I ought to say of the telephone call I finally made to Banks on 24 February that, in the operations I have commanded as CDF, that is the first time I have spoken to a commanding officer. I am exceedingly sensitive to the issue that, if the Chief of the Defence Force starts ringing COs all the time to find out what is going on, it undermines dramatically the effectiveness of the system. It was in my mind all the time that my duty as the chief in the circumstances-because the reports as I had heard them were not any special surprise-ought to support the commanding officer. In my view, the handling of those doubts-of course, we have doubts about all sorts of things at all sorts of times. We had lots of doubts in East Timor about what did or did not take place. So there is nothing unusual in people saying to me, `I am not sure what happened.' In dealing with Rear Admiral Ritchie particularly-because Rear Admiral Ritchie is in the chain of command I regard his conversation with me as slightly more important than that of Vice Admiral Shackleton, simply because Ritchie is the man with the command authority-and in dealing with that issue, leaving it open for him to come back and persuade me otherwise was in my view the right thing to do. Senator FAULKNER-So this is the first time you ever went directly to a commanding officer on a matter? Adm. Barrie-Yes. Senator FAULKNER-Why did you do it on this occasion? Adm. Barrie-In Commander Banks's case? Senator FAULKNER-In relation to this incident, to Commander Banks. Adm. Barrie-Simply because, having been through the experience of the estimates committee, having spent the weekend trawling through what I had in front of me and having in mind a range of questions that simply were not answered in any of the material that I had, I knew that I had to make a final and absolute judgment one way or the other quickly because this was an issue that was spinning out of control quite quickly. So, in spite of all my reservations about doing it, I decided I had no choice but to call him. Senator FAULKNER-You were not satisfied that the written sit reps and op reps and so forth which did not mention children being thrown overboard were satisfactory? Adm. Barrie-No. I was worried that a child may have drowned-that something might have happened that was not covered in those chronologies-and I wanted to have Banks's absolute assurance there was no such eventuality. Senator FAULKNER-Let me take you to the bottom of page 22 of your opening statement: Hence there was an obvious discrepancy between what the CO was reporting in writing when the events were occurring and his message of 10 October, which was obviously a reconstruction of events sometime after events had taken place and was not a transcripted log. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 759 I must say, with respect, that when you delivered your opening statement I was surprised at those words, particularly the words `between what the commanding officer was reporting in writing when the events were occurring.' There seems to me to be a consistency in relation to what was received in writing and electronic messages and signals and the like from Adelaide. The only inconsistency-the only contradiction I am aware of-comes as a result of the disputed telephone call, doesn't it? Adm. Barrie-No. I draw your attention to Adelaide sit rep No. 7, which talks about SUNCs being thrown or jumping overboard. That was made at the time of the events. Senator JACINTA COLLINS-They either jumped or were thrown overboard. Adm. Barrie-That is right. Senator JACINTA COLLINS-We now know they jumped. You are reading it all the wrong way. Adm. Barrie-I am saying contemporaneously that on 7 October that was a message from the Adelaide. Senator JACINTA COLLINS-And it was not erroneous. Adm. Barrie-It said they might have been thrown overboard. Senator FAULKNER-No. Adm. Barrie-It does. Senator FAULKNER-The point that Senator Collins made, which I think is an accurate one, was that they were thrown or jumped. That is one element. What about children? Adm. Barrie-I do not think it says children. Senator FAULKNER-That is right. Adm. Barrie-The point I am trying to stress here is that there was a discrepancy between that sit rep and the message of the 10th. So you still face this issue of the events being recorded on the date. Senator JACINTA COLLINS-Admiral, logic 101 tells you how to read an or-construct, and that is not erroneous. We do know that they jumped, so the statement that they either jumped or were thrown was accurate. Adm. Barrie-Why would you add `or thrown' if it were not a possibility? Senator JACINTA COLLINS-Because, at the time, the commander did not know, and he was waiting until he got further information. So he was more general, rather than specific. CERTAIN MARITIME INCIDENT CMI 760 SENATE-Select Friday, 12 April 2002 Adm. Barrie-That may be so, but that is a judgment after the event and not the judgment at the time of the event. Senator JACINTA COLLINS-The two comments are not inconsistent. Adm. Barrie-I understand that. Senator JACINTA COLLINS-But you said he was erroneous. Adm. Barrie-The point I am trying to make here is the difference between a contemporaneous record and what came out on 10 October. Senator JACINTA COLLINS-But on page 23, on your final dot point, you say it was erroneous. This is a very serious point here, Admiral, because you are saying that the commander provided erroneous information. Adm. Barrie-No, I am saying I wanted to clarify in my own mind by way of example. Senator JACINTA COLLINS-So he did not provide erroneous information? Adm. Barrie-Please read it in context. These are the sorts of issues that are in my head and frame the sort of reason why I had to have a conversation with the CO of Adelaide. Senator JACINTA COLLINS-But your comment on this final dot point at the bottom of page 23 says: What led to the CO initially to provide the information both orally and in writing that he said days later was erroneous. Nowhere has Commander Banks said that he provided erroneous information. Nowhere. Senator BRANDIS-It does not mean it was not erroneous; it means Commander Banks did not concede that it was. Senator JACINTA COLLINS-And the Admiral just said he also did not concede, on revisiting the issue, that an or-construct in a sentence actually means that it was erroneous Adm. Barrie-I am not saying any of that is a fact. What I am saying is that these are the sorts of questions that led to me having the conversation with Banks. Senator JACINTA COLLINS-But the statement of SUNCs jumping or being thrown overboard is not inaccurate. Adm. Barrie-I agree. Senator FAULKNER-Admiral, what you do do, back on 11 October, is ask Strategic Command and/or Rear Admiral Ritchie to get evidence and witness statements? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 761 Adm. Barrie-Yes. Senator FAULKNER-Do you think that was a good move? Adm. Barrie-Yes. Senator FAULKNER-I do not disagree. Adm. Barrie-I am well aware that if you come back four months later and ask what happened everybody has forgotten. So it just seemed to me a sensible precaution to say to people, `Go round and get all the stuff together so that if there is any reason to go over it we have got it.' Senator FAULKNER-I think your initiative was right; I am not critical of it at all. I agree with you it was the right thing to do. Having got them, though, what happens? Do you think your actions adequately reviewed those witness statements and allowed the matter to be cleared up? Adm. Barrie-I did not send for the material. I did not read that material. As far as I was concerned, I was satisfied that the action had been done and the material was in one place. Senator FAULKNER-You took the initiative to check or ensure that this had happened- that is right, isn't it? Adm. Barrie-That is right. It was a direction I gave COMAST. I wanted to make sure it had been done. Senator FAULKNER-Yes, it was a direction and you wanted to make sure it was done. But wouldn't you accept that even a cursory reading of those witness statements would have made pretty clear what the situation was and this matter could have been cleared up? Adm. Barrie-There are a couple of qualifications I would have to put on that. Firstly, I think the EOTS operator, Able Seaman Gerrits, had some element in his witness statement about the possibility. Secondly, of course, those witness statements were only of the witnesses the CO of Adelaide chose to collect. If I was doing it I might have collected a whole range of other witness statements too. Senator FAULKNER-But the truth of the matter is that the witness statements do not confirm the incident at all; they are not helpful to the case that has been manufactured by the government-not by Defence-in this and that has been progressed in the sensitive political environment in an election campaign. Would you accept that? Adm. Barrie-I do not have a view one way or the other. The witness statements were assembled, as I had directed. They were available to Major General Powell and in subsequent proceedings. CERTAIN MARITIME INCIDENT CMI 762 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-As you reflect some months after the event, what action could you have taken or should you have taken that might have meant the government was not able to have this matter uncorrected in the public arena? What could and should have been done? Adm. Barrie-I think that is impossible for me to say. I act under the direction of the minister. That is my duty; that is what I do. So it is not possible for me to say whether I could subvert any intention in that way. I do not think there is anything other than, as I said earlier, getting Rear Admiral Ritchie to positively determine one way or the other. The report about children not being thrown over the side would undoubtedly have helped, and I would have had to then provide that advice to the government, but that is all. Senator FAULKNER-But in so many areas the government is insisting on the telephonic advice, verbal advice, not written advice, isn't it? Adm. Barrie-Insisting on the telephone advice, yes, but not in the absence of any other advice. I think the government's concern and, indeed, all our concerns in today's age are speed of communications and getting information around. Senator FAULKNER-Yes, but this is absolutely advantageous, as it turns out, for the government. I have asked a number of your senior colleagues- ACTING CHAIR (Senator Brandis)-It may well be right because it is true. Senator FAULKNER-We know it is not true. ACTING CHAIR-We do not know it is not true. Senator FAULKNER-You might be the only person in the world now who still thinks chil- dren were thrown overboard but, fair enough, you are entitled to your view. The admiral does not. ACTING CHAIR-I think everybody in Australia believe that children were thrown overboard in the fullness of these events. Senator FAULKNER-The admiral does not, for one, and he made that clear some time earlier. I assume you heard that I asked both Rear Admiral Ritchie and Rear Admiral Smith about this important issue of the chain of command. In a probably fairly ineloquent way, I asked them if the chain of command worked or failed. They said to me that they passed information that they had available to them up the chain of command to their superior officer. They say- and this is fair enough, I suppose-`We fulfilled our responsibilities.' There is an absolutely massive failure. The problem that I have to raise with you, Admiral-and I do not think this is going to surprise you, given the nature of my questioning to some of the other witnesses-is that you are at the top of the chain of command, and you accept that. Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 763 Senator FAULKNER-Of course you do. You know that; I know that. It is hardly a state secret. The information is passed up to you and there it stays. In a formal sense, it is not passed to government. Yes, you have two discussions with Reith: one about the photographs and one about the event on approximately 17 October. Do you see that there is a failure here in the chain of command? It is a real concern because more junior officers-albeit very senior officers in Defence but more junior to you-are able to say, `We passed it up the chain of command.' It is almost as if these matters go into a vacuum. Adm. Barrie-I think what you are tilting at is what I have said was a failure in the element of the command and control system about reporting back. The command and control system itself is a forward-looking thing. It is about what we are going to do tomorrow. There is a weakness in the command and control system on the reporting-back issue. There is a range of reasons why that occurs. Frankly, it is my view that in October last year the command and control system dealing with these issues, dealing with what we were going to do in Afghanistan, dealing with all the other operations that we had on our plate was under more stress than at any other time I can remember. We have exposed a problem here. We have to make sure that we can solve that problem. I admit that. I say that that is definitely an area where we have to do a lot better. Senator FAULKNER-Rear Admiral Ritchie and Rear Admiral Smith say that it is the CDF's responsibility to determine when the chain of command fails to communicate advice clearly enough to government to leave no room for error. When I asked them questions about this, they say, `Well, that is the CDF's responsibility. It is his responsibility to correct this.' You do accept that responsibility, don't you? Adm. Barrie-Absolutely. Senator FAULKNER-Why did you not decide that the chain of command had clearly not worked, at least at the top level? Isn't that the only conclusion a reasonable person can come to, given the fact that- Adm. Barrie-I agree absolutely. Now that I know what took place-and I have said that- the only conclusion I can draw is that it did not work for the reasons I have just said, in reporting back. But I did not know at the time that it was not working. Senator FAULKNER-What `it was not working' means is that then Minister Reith was able to maintain the fiction of the photographs and the `children overboard' story after 11 October, on which you were definitively advised through the chain of command that there was no evidence that children had been thrown overboard. That is the result of it. Adm. Barrie-That is putting it far too strongly. Doubts were raised about it. Those doubts were never eradicated, in my view. You simply cannot say that it was positively and universally dealt with, as far as I was concerned. Senator FAULKNER-But why couldn't you provide clear advice, advice in certain terms, to the minister, written or otherwise, that either there was no evidence or at minimum there were serious question marks about evidence in relation to the children overboard issue? Why couldn't you have done that? CERTAIN MARITIME INCIDENT CMI 764 SENATE-Select Friday, 12 April 2002 Adm. Barrie-Well, I do not interpret the conversation of 17 October in any other way. Senator FAULKNER-It did not work. Adm. Barrie-I cannot comment on that. Senator FAULKNER-You also argue, of course, that the chain of command working the other way actually prevents you from contacting Commander Banks to confirm the facts. Adm. Barrie-I think that is accepted. To respond in the way I did to Rear Admiral Ritchie I think was to leave it open for him to come back to me and be persuasive. He in turn could have gone to his subordinate commanders, and we might have got a different story. I will readily say that, had I directed him to come back and make a positive finding, we might have resolved it much more quickly. But I do not see that of itself as an oversight or a failure in the command chain. Senator FAULKNER-What you are saying is that the chain of command at all levels in Defence works perfectly adequately, apart from yourself. Adm. Barrie-No, what I am saying is that the record of performance of the chain of command over 60 operations is outstanding. Those operations have been conducted to the highest professional standards and admired throughout the world. If we have a problem at a time of great stress in the organisation it is in the reporting back of elements of that command chain. Senator FAULKNER-I have to say, Admiral, that the problem here is that those more junior to you in the chain of command passed this information on appropriately-you agree with that? Adm. Barrie-No, I do not agree with that. Senator FAULKNER-What, inappropriately it is passed on to you? Adm. Barrie-I recall on the night of Senate estimates, for example, looking at the message of 10 October from HMAS Adelaide which went to Maritime Headquarters Australia. That message was never formally passed to CDF Australia. So it was not always appropriately done. That is actually the purpose of this inquiry, isn't it? Senator FAULKNER-Rear Admiral Ritchie informs you clearly and Admiral Smith had informed him clearly. He passes it up the chain of command to Rear Admiral Ritchie, Rear Admiral Ritchie passes it up to you-and there it stays. Adm. Barrie-But Rear Admiral Ritchie himself said, on the night of 20 February, `If I'd had that message in my hands earlier on, on 11 October, I would have had what I needed to come back to you.' CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 765 Senator FAULKNER-Do you regret that formal advice in writing from yourself or someone more junior to you in the chain of command does not go to the minister? Adm. Barrie-I think part of the outcome of this whole process is to look at those procedures and just make sure we have got it really tight. To go back to the essential point, this is an organisation, particularly at the strategic and operational levels, undergoing a great deal of stress. There is no doubt that telephonic communications these days have become the hallmark of the way things are done, and I think there has become a laxness in the follow-up procedures. I think that is one of the reasons the task force has got a lot of work to do. Senator FAULKNER-I accept that. But you know that on the first day of this committee's hearings Dr Hawke, the secretary of the Department of Defence, indicated to this committee that he had actually offered to resign as secretary of the Department of Defence. Adm. Barrie-Yes. Senator FAULKNER-I do not know whether or not you were aware of that prior to it being made public here. Adm. Barrie-I heard it for the first time. Senator FAULKNER-On this occasion, as an admiral, you are in the same boat as the rest of us. Look at that issue: do you think Dr Hawke was correct in offering his resignation? Adm. Barrie-That is not a fair question. You have to ask Dr Hawke. Senator FAULKNER-Well, I think it is, because it goes to this point. You understand why Dr Hawke made the comment to the committee he did. You understand the context of the offer of his resignation. Adm. Barrie-I think I understand the context, but again I am not Dr Hawke so I do not know. Senator FAULKNER-Is it your understanding that Dr Hawke offered to resign because he did not inform Mr Reith about his concerns about photographs in writing? Adm. Barrie-It is for Dr Hawke to say, but my recollection is that Dr Hawke offered to resign because he felt some responsibility for not clarifying the matters as they should have been. Senator FAULKNER-Do you think he was correct in offering his resignation? Adm. Barrie-I am not going to answer that question. I was not privy to the conversation. Senator JACINTA COLLINS-That was not part of the question. CERTAIN MARITIME INCIDENT CMI 766 SENATE-Select Friday, 12 April 2002 ACTING CHAIR-I am the acting chair. I will take that as a point of order. There is no point of order. Senator FAULKNER-There is, actually. Anyway, my question was: was Dr Hawke correct in offering his resignation, in your view, in the circumstances? Adm. Barrie-Senator, I am not going to answer the question because I was not privy to the conversation. I do not know what the issues were that were canvassed between him and the minister. Senator FAULKNER-Did you give consideration to offering your resignation? Adm. Barrie-I did-for 30 seconds. Senator FAULKNER-When did you give that consideration? Adm. Barrie-After the events of the Senate legislation committee. Senator FAULKNER-After the estimates committee? Adm. Barrie-Indeed. Senator FAULKNER-For 30 seconds? Adm. Barrie-Yes. Senator FAULKNER-That is not much of a consideration. Adm. Barrie-No. Senator FAULKNER-But nevertheless you gave some thought to it, so you should share with us why, for 30 seconds after the estimates committee, you did give that consideration. Adm. Barrie-I gave consideration to it because I thought it was an option that needed to be considered, it was an option that was open to me, I guess, as CDF, to make the offer, but I have to say I dismissed it pretty quickly because, frankly, it is not in my nature to walk away from a problem, it is not in my nature to leave something unsolved. I think it is my duty to get in there and solve this so it does not recur. Senator FAULKNER-Understanding that, what was the reason you gave consideration to that? Adm. Barrie-Because I reflected and thought, somehow or another, maybe I should have done better. Senator FAULKNER-And do you think- CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 767 Adm. Barrie-I do not have the concept of the infallible CDF. That has never been in my lexicon. I make quite a lot of mistakes from time to time, but I do place a lot of emphasis on learning from mistakes so we can improve things. Senator FAULKNER-We all make mistakes, as you know. We all make mistakes: that ought to be acknowledged. I think it is also fair to say, when you look at the question of failures or mistakes, be it a witness on that side of the table from the Defence Force or the Public Service or whether it be politicians on this side of the table, in making an assessment about whether a mistake is a resigning offence or not, it goes to how severe the failure is and to what extent the actions of the individual concerned warrant that level of response. That is the issue. It is not a question of making mistakes, is it? Adm. Barrie-No. Senator FAULKNER-So surely what crossed your mind was: to what extent did you in your role as CDF feel that your failures were of such a degree that they warranted the course of action that Dr Hawke as secretary not only considered but in fact caused him to go further and also offer his resignation? Adm. Barrie-As I say, I thought about it briefly. While I would now-again with 20/20 hindsight-say I should have given more firm direction to Rear Admiral Ritchie, on the rest of those issues I do not think I misled my minister in any way. I do not think I acted without due direction. I did my best to keep my minister informed. I regard that as my duty as the CDF. So I just do not see that so far as I am personally concerned that should be proceeded with. But I also feel quite strongly about making sure that if the system, for whatever reason, has failed in these circumstances then we have go to get to the bottom of it and we have got to make sure it cannot recur. Senator FAULKNER-In offering his resignation you would not be suggesting that Dr Hawke was trying to walk away from the problem, would you? Adm. Barrie-I was not privy to the conversation between Dr Hawke and the minister. Senator FAULKNER-When you look at the role of others in the ADF-and I am sure you have given considerable thought to this-when you reflect for example on the actions in relation to SIEV4 by Air Marshal Houston and Lieutenant General Mueller when they were acting CDF, do you think their actions were correct and appropriate in the circumstances? Adm. Barrie-Yes. Senator FAULKNER-Do you support the actions that were taken by the two acting CDFs? Adm. Barrie-Yes. Senator FAULKNER-When did you first learn of Air Marshal Houston's actions in terms of his advice to Minister Reith on 8 November 2001? CERTAIN MARITIME INCIDENT CMI 768 SENATE-Select Friday, 12 April 2002 Adm. Barrie-As I say in here, he told me about that in a return to office brief on Monday, 12 November. I would have to say it was not the main topic of conversation. We canvassed a whole range of issues. But he did tell me there had been the conversation between him and Minister Reith and what it was about. Senator FAULKNER-Did you take any particular action in response, having been back briefed by Air Marshal Houston? Adm. Barrie-No, not that day. I do say, again in the statement that on the Wednesday, I think it is, when I started to assemble the Powell inquiry to get to the bottom of it I did take that into account as one of the factors. Senator FAULKNER-Have you given any consideration to whether the actions that were taken by Air Marshal Houston and Lieutenant General Mueller when they were acting as CDF actually should have been actions you took earlier as CDF, particularly in early October? Adm. Barrie-No. Senator FAULKNER-You see, this is in one sense, I suppose, a really important element of this: did they take actions the chain of command was requiring and expecting of you that you did not take but when they were acting in your position-in other words they were at the top of the chain of command- Adm. Barrie-My understanding is they took their actions in response to a particular set of circumstances. For example, I think Air Marshal Houston took his actions in response to something that appeared in the Australian newspaper about events in Christmas Island and I think the need to advise the minister. Similarly, I think the actions Lieutenant General Mueller took were in response to a particular set of circumstances. I was not here. I did not have the authority of the CDF for the day. I think what they did was entirely appropriate and I venture to say had I been sitting in the chair I would have acted similarly. Senator FAULKNER-But the thing is you were sitting in the chair. Adm. Barrie-No, I was not, Senator. Senator FAULKNER-You were not at that specific time but you had been for a very long time. Adm. Barrie-Yes. But when there is an acting chief of the Defence Force he has all the authorities and powers of the Chief of the Defence Force, and they are taken away from me. Senator JACINTA COLLINS-Admiral Barrie, the problem is that Minister Reith indicated that he did not accept what Air Marshal Houston had put to him because it was not consistent with what you had put to him. So Minister Reith is actually saying in reality he regards you as still in the chair. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 769 Adm. Barrie-Well, that is your version of events. I could not comment on that. You would have to ask Minister Reith. Senator FAULKNER-We can't. I have told you that, Admiral. This is the problem. Adm. Barrie-Minister Reith has advice. He has got it from all sorts of sources. He is getting it from the task force. He is getting it from me. He is getting it from Air Marshal Houston. He has got to weigh up in his mind what he thinks about sources of advice, as we all do. I am not going to comment on whether he thought that was more relevant than what I had said. Senator FAULKNER-But you talk about politicisation. I take very seriously the comments that you made in your opening statement, but I also look at the reaction to some of these events. You become a bit jaundiced, I have got to say. How did you feel when the Prime Minister went onto the floor of the House of Representatives and used your estimates testimony to ridicule Air Marshal Houston? How do you feel about that? Adm. Barrie-How do you think I feel? Senator FAULKNER-I do not know-that is why I am asking you. I know how I think you should feel. Adm. Barrie-I am not going to answer the question. I think it is improper for me to comment on that. Senator FAULKNER-You say, `How do I think you feel?' I think I know how you feel. But you see this is why the point that you make-and properly so-about politicisation is so important. There you have got the Prime Minister of this country ridiculing a man that you say acts absolutely properly-and I agree with you-and you say that you would do exactly the same thing if you were in his shoes, don't you? Adm. Barrie-Yes. Senator FAULKNER-But he is ridiculed by the Prime Minister on the floor of the House of Representatives and that causes, I do not doubt, significant problems in the fabric within Defence. How are we in the opposition in this country supposed to react to that? Adm. Barrie-That is not a question I can answer. Senator FAULKNER-When you properly refer to politicisation in your opening statement! That is politicisation from the Prime Minister on the floor of the House of Representatives. Senator FERGUSON-Acting Chair, the Admiral is not here to be lectured by Senator Faulkner on politicisation. ACTING CHAIR-I do direct you to the terms of reference, Senator Faulkner, and ask you to keep your questions relevant to the terms-and to make them questions, not statements. CERTAIN MARITIME INCIDENT CMI 770 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-Let me ask this, Admiral, because I can understand why the government senators do not want me to ask this, and I would not have asked it- Senator FERGUSON-Because you were being a bully, Senator Faulkner. Senator FAULKNER-I beg your pardon? Senator FERGUSON-You are putting a proposition of your own and asking him to comment. Senator FAULKNER-You know the statement I mean- ACTING CHAIR-Senator Faulkner, just proceed. Senator FAULKNER-I am glad that the government senators have raised this. Let me go on: are you aware of the fact, Admiral Barrie, that in the House of Representatives on 21 February 2002 the Prime Minister, in answer to a question on notice, said: Last night, they thought they had an Exocet from the air marshal. I think you have had a decent torpedo from the admiral. This was going to be the big one. Are you aware that the Prime Minister said that? Adm. Barrie-I saw that reported in the press. Senator FAULKNER-Do you agree with the Prime Minister's characterisation of your testimony? Adm. Barrie-I do not have a comment to make on the Prime Minister's characterisation; I do have a comment to make on the media reporting of it. The reporting of it was that there was a rift between the senior leadership of the Australian Defence Force. Any suggestion that there is a rift in the senior leadership of the Australian Defence Force is of enormous concern to me. One of the very important items on my agenda as the Chief of the Defence Force was to manage my chiefs of staff and the Vice Chief of the Defence Force in a thoroughly professional and collegiate way. So any reporting in the press that there is a rift in the senior leadership of the ADF is always of great concern to me and personally quite worrying. Senator FAULKNER-What about the characterisation by the Prime Minister of Air Marshal Houston's testimony? I appreciate that you may not want to comment about your own. What about the statement: `an Exocet from the air marshal'? Adm. Barrie-I do not know how to put that in context. I think that is a question that can only properly be put to the Prime Minister. But in all natures of warfare, of course, Exocets, torpedoes, guns and all sorts of other items of military hardware are often pitched against each other. Senator FAULKNER-But you are saying that there is no rift. That is an important point- CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 771 Adm. Barrie-I think there is no rift. Senator FAULKNER-Let me say that, if there were a rift, these sorts of statements would certainly exacerbate it, wouldn't they? Adm. Barrie-I guess that is one of interpretation. I could see that as a quite jocular comment. Senator FAULKNER-Oh, come off it! You cannot be serious saying that. Adm. Barrie-I was not in the House; I did not see- Senator FAULKNER-If the Prime Minister- ACTING CHAIR-Order, Senator Faulkner! Admiral Barrie, you were in the middle of completing an answer to a question. Would you complete your answer, please, and then Senator Faulkner can ask his next question. Adm. Barrie-I was not in the House at the time. I have no means of understanding precisely what the atmosphere was so I do not know how to interpret for you those comments. But you could interpret those comments as being rather jocular in nature. They were not reported that way, but you could. Senator FAULKNER-I think a reasonable person could say that they were in fact charac- terising a rift in lurid terms. When you say to me, `You know what I feel,' in answer to my first question, of course I know what you feel. I understand why you feel that. But I hope you under- stand the way that some of us on our side of the parliament feel when we see some of our col- leagues who are not returned in a federal election. Maybe just one or two of them may have been, or may have done a little bit better, if the record had been correct. ACTING CHAIR-Senator Faulkner, this ad misericordiam on behalf of the defeated Labor candidates is far beyond the terms of reference. You know I have been very liberal about the terms of reference. Please make your questions relevant. Senator FAULKNER-With due respect, the terms of reference of this committee are, as you yourself have pointed out, quite broad. ACTING CHAIR-They are indeed, but they do not extend to feeling sorry for defeated Labor candidates at general elections. Senator FAULKNER-Of course they do not, but Admiral Barrie is well aware of, and perfectly able to look after himself on, this. You and I both know what he said to the committee today, and you also know what his opening statement says about politicisation. ACTING CHAIR-Proceed to your next question, please. CERTAIN MARITIME INCIDENT CMI 772 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-Admiral Barrie, I think a fair observer-and I think I am a fair observer; you may not, but I think I am reasonably fair-might say, and I would say, that you took a long time to change your mind on this-in other words, the issue of the status of the event. Is that fair criticism? Adm. Barrie-Again, with 20/20 hindsight, I think that is fair criticism. The question I have had to ask myself on a number of occasions is this: in all the circumstances, were the actions I took reasonable? My answer to that question is yes, with that one single exception. Senator FAULKNER-And it was the estimates hearings that drove you to reconsider your position? Adm. Barrie-To put that in context: I was not here in the days preceding estimates. I returned to Australia to find to my surprise a great deal of controversy about a range of matters concerning the events. The experience of the estimates- Senator FERGUSON-You had just got off the plane. Adm. Barrie-having just got off the plane, left me in the situation, when estimates finished, of absolutely knowing that this question had to be resolved one way or the other. It was quite clear, as part of that process, that it could not linger on in any way-waiting for this select committee to start, for example. Senator FAULKNER-The reason I ask you that is that I wonder if it was something spe- cific that Commander Banks said that changed your mind. That might have been the case; it is all in context-you rang Commander Banks shortly after the estimates hearing; I appreciate that. Commander Banks, in evidence to this committee, indicated that you had said words to the effect-I think I can correctly quote him-`That changes everything' in relation to the address- ees on the op rep signal. Are you aware of that? Adm. Barrie-I certainly made the comment, `That changes everything.' But to go back to the detail of the conversation, we had traversed a range of issues, then we got to a point about, let us say, three-quarters of the way through and I said to him, `Are you absolutely sure no children were thrown over the side? Are you absolutely, 100 per cent, sure?' And he said, `Yes.' Then I said, `Well, that changes everything.' ACTING CHAIR-Is that right: the question to which the affirmative response was was: are you 100 per cent sure? Adm. Barrie-My notes do not indicate precisely the words we used, but certainly on my notes it is recorded at that point, `No children over the side. That changes everything.' ACTING CHAIR-That was the level of certainty Commander Banks was prepared to speak to on 24 February 2002? Adm. Barrie-It was in answer to a whole range of questions about weapons firings, about how could he be sure nobody had drowned, how did he know how many people were on the vessel, did he have it under total surveillance, was there any possibility at all that perhaps CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 773 people not wearing life jackets had drowned-all of those sorts of issues. We had traversed all of that and then we got to that point and I asked him again, and that is the point where I said, `Okay, on the basis of what you have now told me, and you have answered a range of those questions, that changes everything.' ACTING CHAIR-So you understood Commander Banks to be affirming to you to that level of certainty on 24 February 2002 that there were no children thrown overboard from SIEV4. Adm. Barrie-Absolutely. ACTING CHAIR-Thank you. Senator FAULKNER-You made the public announcement about your changed view after the Defence senior leadership group- ACTING CHAIR-No, in the opening hours of the Defence leadership group. Senator FAULKNER-I am sorry, I think I was right to say you made your public state- ment- Adm. Barrie-Yes. Not after, as part. It was on the same morning that we started, the press conference. Senator FAULKNER-I appreciate that. Could you briefly indicate to the committee the background to your statement to the senior leadership group and then your public statement a little later in the day? Adm. Barrie-Certainly. Because we were assembling 240 of Defence's band 1s, band 2s, one stars and two stars in one place-actually in the Great Hall of the Parliament House, as it turns out-it was quite obvious, not just to me but, frankly, to me and the chiefs and the secretary, that we had to take head-on this whole issue in the opening phases of that leadership conference. To have persisted with an agenda framed more for management rather than leadership issues would have just derailed the whole of the conference. Senator FAULKNER-But isn't that an indication of how serious this matter was? Adm. Barrie-It had become a very serious matter, yes. We had had estimates the previous week. I had changed my advice on the Sunday night. We were going to meet on the Wednesday morning. We had lots of media commentary about rifts in the senior leadership of the ADF. These comments were not just of concern to me but to Air Marshal Houston and the chiefs and all of us. We really had to take it head-on and deal with it. Senator FAULKNER-Have you assured Air Marshal Houston, who is of course the Chief of the Air Force, that your relationship with him remains unchanged as a result of these events? Adm. Barrie-Absolutely. CERTAIN MARITIME INCIDENT CMI 774 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-You can satisfy the committee completely about that? Adm. Barrie-Air Marshal Houston I hope will have a chance to speak for himself- Senator FAULKNER-Yes, but most importantly you are his senior officer. Adm. Barrie-As far as I am concerned, I have the utmost confidence in Air Marshal Houston. Senator FAULKNER-And can you satisfy the committee that the statement of the Prime Minister in the House of Representatives about you and the air marshal and various pieces of military weaponry has not affected that relationship? Adm. Barrie-Absolutely not. Senator FAULKNER-Have you worked hard-I mean- Adm. Barrie-Oh yes. After I spoke with Banks on the Sunday I basically caucused with my chiefs of staff for two days and we conducted what I would regard as CDF's informal inquiry: following up on photographs and on what we were going to do with the senior leadership group, setting up the task force-all of those sorts of issues. The chiefs-these are my words-were adamant that I should not resign, I should continue to serve, I should sort this problem out and they would work with me in sorting this problem out. We involved the chiefs directly in two things, really: transmitting to the senior leadership the solidarity of the top leadership team, and also putting out to the single services the key message I wanted them to hear from me. In other words, the message to the armed forces about what I said on the Wednesday was not put out by CDF; it was put out by each of the service chiefs. Senator FAULKNER-Who raised the issue of resignation with that group? Adm. Barrie-I did. Senator FAULKNER-You did? Adm. Barrie-That is part of my 45 seconds. Senator FAULKNER-So it was not 30 seconds? It is just that you said you had a very brief consideration of 30 seconds. Now you are telling me you are raising it with a senior leadership group. Adm. Barrie-I did; I did raise it with them. Senator FAULKNER-That is slightly different, I think. It warrants clarification because I just accepted it- Adm. Barrie-Let me clarify it this way. I had gone through in my own mind before talking to them where I thought I stood. I said to them, `It is my intention to serve on, to sort this CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 775 problem out and to exit,' but I said, `If any of you feel it is a better thing for me to go, you should come and tell me so.' That is what I said. Senator FAULKNER-And no-one has? Adm. Barrie-No. Senator FAULKNER-You seem to be very critical of the media in relation to the recent events-in other words, the coverage of what has occurred in the parliament-and I think a particular concern to you is the media coverage of a rift at the senior levels of the Defence Force. I think that is what you are saying to us. Is that right? Adm. Barrie-Yes, I never read the Hansard. I have read the media reports. Senator FAULKNER-What was your reaction to the media reports? Adm. Barrie-Enormous concern, because of the way this was articulated and- Senator FAULKNER-But it was articulated by the Prime Minister; it was not articulated by the media. Adm. Barrie-I know. But the way that whole event in the House was articulated in the press reporting was that this was an indication of a serious rift in the senior leadership. That is of great concern. Senator FAULKNER-So have you told the Prime Minister or the Prime Minister's office or the Minister for Defence that this should not have been said? Adm. Barrie-No. Senator FAULKNER-Don't you think in the circumstances it warrants you, as Chief of the Defence Force, saying, because you stress with us-properly-the solidarity that you have amongst your senior defence officers- Adm. Barrie-No, I have not said whether or not anything should be said in the House. I have regarded that as beyond my brief. But I have reported and discussed with the minister at length that it was the press reporting and the effect that was having on the senior leadership team. Senator FAULKNER-So prior to your decision in relation to this, in a general sense you raised this with the service chiefs at a formal meeting of the senior leadership group. I think that is what you are saying. Adm. Barrie-Yes. Senator FAULKNER-Is there a separate formal structure? CERTAIN MARITIME INCIDENT CMI 776 SENATE-Select Friday, 12 April 2002 Adm. Barrie-Because this was clearly an issue we ought to focus on, I asked the chiefs to clear out their diaries for the two days. I said, `We've got a whole bunch of work to do between now and Wednesday morning. We, the top team, just need to get our minds around what it is we want to do, what are the things that we are going to inform people about.' That is what we did. Basically, we sat together for two days and we went over a whole bunch of this material ourselves, and out of that came the creation of the task force headed by Rear Admiral Gates, the briefing for the press conference on the Wednesday and the briefing for the senior leadership team on the Wednesday. Senator JACINTA COLLINS-In relation to the Prime Minister's statements about the Exocet missile, is it fair to say that significant concerns have been raised with you from within Defence about that characterisation? Adm. Barrie-No, I haven't heard that. I am aware that people were concerned about this so-called reported rift. Anytime there is a picture like that portrayed in the media it is going to be of concern to people inside Defence. Senator FAULKNER-This is a thing that perplexes me a bit: you blame the media-fair enough-and I blame the Prime Minister. I think that is even more fair. Senator JACINTA COLLINS-Within the senior leadership group was the issue raised? Adm. Barrie-About Exocets and torpedoes? Senator JACINTA COLLINS-About the nature of the Prime Minister's comments? Adm. Barrie-Not that I remember. Senator JACINTA COLLINS-I am curious about that, because it has certainly been raised with me by a number of Defence related people. It surprises me that it has not actually been canvassed within Defence. Adm. Barrie-In going into the conference on the Wednesday morning, I took it head on. I took the first hour. I went through the whole of the material. I had the view that many of those people would be concerned about my leadership of the ADF, and I thought I should take that head on, deal with it and offer them the opportunity to come back and attack me if that is what they wanted to do. So I did that. I have to say that served the purpose, I think, of settling a whole range of issues in people's minds. I then left it there and went off and gave the press conference. It was important to me that they heard it from me first before it was put out in the public domain. Senator JACINTA COLLINS-But you are not responsible for the Prime Minister's statements. Adm. Barrie-Far be it from me to pretend that I am responsible for any of the PM's answers. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 777 Senator JACINTA COLLINS-I am curious about one aspect here- CHAIR-Can I just ask: have any of our allies raised it either formally or informally with you? Adm. Barrie-No. Senator JACINTA COLLINS-Admiral, we heard in earlier evidence that the Prime Minister first became aware of the nature of Air Marshal Houston's evidence the Friday before, I think it was, the Wednesday afternoon estimates. When or did you at all advise the Prime Minister about the nature of your evidence to estimates? Adm. Barrie-Of my evidence to estimates? Senator JACINTA COLLINS-Yes. What position you would put? Adm. Barrie-I never informed the Prime Minister. Senator JACINTA COLLINS-You never did? Adm. Barrie-No. Senator JACINTA COLLINS-I am curious, because you indicated that you did advise the Prime Minister of the statement you would be making the following week. Adm. Barrie-That followed the call from Banks. I had the view that I could ring Minister Hill and talk about it but I thought that in the circumstances, and given that there was a new Minister for Defence, the most appropriate thing to do was to tell the Prime Minister. Senator JACINTA COLLINS-Did you advise Minister Hill that you at that point in time-and this is during the estimates week-did not accept the Powell conclusion? Adm. Barrie-I had a meeting with Minister Hill before we went into estimates. Senator JACINTA COLLINS-So he was aware at that stage of your torpedo, so to speak? Adm. Barrie-Well, he was aware of my position. Senator JACINTA COLLINS-I am just interested in that, because the Prime Minister characterised Air Marshal Houston as something the opposition would think was an Exocet missile. I think it is important we put on the record that the opposition were not aware of the Exocet missile in fact until it was launched, yet the government was aware of the Exocet missile the previous Friday and, indeed, of your torpedo before that was launched. Adm. Barrie-That is all news to me, Senator. CERTAIN MARITIME INCIDENT CMI 778 SENATE-Select Friday, 12 April 2002 Senator JACINTA COLLINS-Yes, well, you certainly had no indication we were aware of Air Marshal Houston's evidence before it was presented, did you? Adm. Barrie-I only became aware of Air Marshal Houston's evidence the evening before estimates started. I knew this was going to be difficult because it was different advice from what I had been giving the government. But, to be quite candid, our duty was to go to estimates and tell the story truthfully. Senator JACINTA COLLINS-Yes, and I appreciate that is what has transpired. There are a couple of other issues I would like to go through very quickly. Page 16 of your statement reads: I directed COMAST to ensure that while this was fresh in everyone's mind that witness statements and any other evidentiary material should be collected. That was, I think, on 11 October. Adm. Barrie-Yes, that is correct. Senator JACINTA COLLINS-Then before the Adelaide departed you recall checking to see whether this had been done. You were advised that the material was assembled and being held in Perth, but you were not advised on the outcome of the collection of that material. Adm. Barrie-No. I simply wanted to make sure that my direction had been followed. I knew the Adelaide was about to go away. I cannot even be sure whom I asked to check that, but I certainly made the inquiry and I was satisfied that it had been done. Senator JACINTA COLLINS-So you were satisfied that the evidence existed, but you did not seek to apprise yourself of what that evidence indicated? Adm. Barrie-No. Senator JACINTA COLLINS-That is the part of this whole situation that, with respect, seems truly bizarre. Adm. Barrie-Senator, let us go right back to this. This was not on the media scope at the time. This is the week afterwards. The Adelaide is about to go off to the Gulf. As I said earlier, we have got an organisation which at the strategic and operational level is under more stress in terms of operations about to be conducted and being conducted than at any time since I have joined the outfit-in 41 years. We have got a lean and mean organisation. Successive governments have sought to change, transform and reform the way we do our business in Defence and particularly the tail ratio as opposed to the tooth ratio. So this was not high on anybody's scope. The whole issue of my direction to COMAST was just as a back-up: if there are going to be any further proceedings let us not be in a situation where, three months later when somebody really wants to find out what happened, none of us can remember. So I saw no compulsion, no reason, to send for all of this and trawl through it because, frankly, I had much bigger fish to be fried. This was just not important to me. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 779 Senator JACINTA COLLINS-But you had a view that the outcome of this process of collecting evidence might in the future become important? Adm. Barrie-Yes. We do this on a lot of occasions. Senator JACINTA COLLINS-But surely a view about what that process achieves is as important, when it does? Adm. Barrie-If there is an incident in East Timor which involves something like this, we will say, `Collect all the evidence and put it in one place.' If nothing comes of it we then dispense with it. If something does come of it, at least it has been done. Senator JACINTA COLLINS-And you are suggesting it was not important to ensure that the outcome of that evidentiary process was conveyed to the minister? Adm. Barrie-I had made no effort to have a look at it. I saw no reason to. Senator JACINTA COLLINS-No. That is patently obvious. If we go to the incident with the minister regarding his agreement not to raise the photographs further-I think you cover that in your statement at page 15- Adm. Barrie-Yes. Senator JACINTA COLLINS-Correct me if I misheard what you said earlier today. You said during that discussion Minister Reith was adamant about his requirements. What were those requirements? Adm. Barrie-That never again would we discuss photographs without making sure we both had them. Senator JACINTA COLLINS-Related to that, on page 14 you say that you had asked Air Vice Marshal Titheridge to vet the photographs. Were you aware that Air Vice Marshal Titheridge never conducted that task? Adm. Barrie-No. Senator JACINTA COLLINS-You were never aware? Adm. Barrie-No. Senator JACINTA COLLINS-Have you heard his evidence recently to the committee on that point? Adm. Barrie-No. I was busy finishing this opening statement. Senator JACINTA COLLINS-Okay. So this is another example of the reporting-back element of- CERTAIN MARITIME INCIDENT CMI 780 SENATE-Select Friday, 12 April 2002 Adm. Barrie-Yes. Immediately the minister and I had had a conversation proposing release of these photographs I did call Air Vice Marshal Titheridge. I conveyed those instructions. I think it was actually done but I do not know the fact of that. Only he can tell you. Senator JACINTA COLLINS-Yes. Air Vice Marshal Titheridge claims `no recollection' of that. Adm. Barrie-I would not find that very surprising. Senator JACINTA COLLINS-He only recalls the four photographs involving asylum seekers on the deck of the Adelaide. They are the only photographs he recalls at that point in time. I am just asking you: is that an example of the concerns you related to earlier of where a lack of a reporting-back mechanism is perhaps a problem within Defence? Adm. Barrie-It could be. We do need to be clear the only photographs I think were relevant to that would be those that Minister Reith was actually holding in his hand at that time. I do not know whether they are the same photographs or whatever that somebody else might have been seeing, but my instruction to the Head Strategic Command was quite clear: `The minister is proposing to release some photographs in the public domain.' I have told him, `That is all right providing you are satisfied about the operational security aspects and about the identities of any of our people involved in operations. You are to conduct that vet and let him know.' Senator JACINTA COLLINS-And this is the process that HPACC usually conducts, is it not? Adm. Barrie-No, I do not think it is always HPACC. HPACC is not an operational entity. It is a public affairs entity. From an operational security perspective I would expect somebody in a uniform to do it. Senator JACINTA COLLINS-But with respect to public affairs they have a protocol about the release of material that has not been followed in this instance. Adm. Barrie-Yes. It is the sort of job that Brigadier Bornholt might have taken on. Senator JACINTA COLLINS-Yes. And would you ordinarily expect that someone like Air Vice Marshal Titheridge would consult HPACC on the release of material? Adm. Barrie-Always, yes. Senator JACINTA COLLINS-You would expect that that would ordinarily occur, and in this incident it did not? Adm. Barrie-As I say, I do not know the answer to that. Senator JACINTA COLLINS-That is not to your knowledge. Adm. Barrie-That would be the normal expectation. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 781 CHAIR-Could I ask a question here? Was this discussion, Admiral, between you and the minister, the discussion on 17 October? Adm. Barrie-No, this is now on the 10th. CHAIR-This is the discussion in which it had been drawn to your attention that the photographs that appeared in the paper purporting to be- Adm. Barrie-No, this is about releasing these photographs. CHAIR-About releasing those photographs. And it had been drawn to your attention that those photographs were about the rescue of the people in the water. Adm. Barrie-No. I did not have any photographs to see. It was simply a question about can I release photographs that I had about SIEV4 into the public domain. That was the course of the conversation. CHAIR-At some point-and I have been out of the room for a while so it may have been covered, and I apologise for that- Adm. Barrie-That night, after the 7.30 Report, there was an issue raised about what photographs went out to the public domain and what relationship they had to the events portrayed. CHAIR-That night, the 10th, you were at home working in your study- Adm. Barrie-I was. CHAIR-and you were rung at home and you were told about the minister's interview on the 7.30 Report. This is my recollection of the events. Adm. Barrie-Yes. CHAIR-And you were told in effect that the photographs that had been displayed on that program were not of the so-called `child overboard' affair; they were of the day after. Adm. Barrie-Yes. CHAIR-It was because of that that you spoke later to the minister. Is that right? Adm. Barrie-On the following day, the following morning. CHAIR-And the outcome of your discussion with the minister on the following day was- in what you have described in your opening statement as a `testy' exchange-`Well, the next time we had better make sure that we're both talking about the same photographs.' That is the evidence. What confuses me, I have to say, is that you commenced your discussion with the CERTAIN MARITIME INCIDENT CMI 782 SENATE-Select Friday, 12 April 2002 minister in order to alert him to the obvious and significant fact that he had referred to the wrong photographs on public television. Adm. Barrie-Yes. CHAIR-Did you tell him that directly? Adm. Barrie-I think it is more or less as I have set down in this opening statement. CHAIR-Could you just tell me what that was again? Adm. Barrie-I told the minister I had been advised that the photographs he had put out did not describe the events 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. I do not know whether he understood-or I cannot recall that. CHAIR-Let us just pause at that point because this is a critical point. You were motivated to hold this discussion because, on public television, the minister had- Adm. Barrie-No, it has been reported to me that on public television the minister has. CHAIR-Yes, but then, when you had a chance to check at whatever time that was, it was also a fact that he had presented these photographs as if they were of one event when they were of another event entirely. Adm. Barrie-Yes. CHAIR-Your obligation, as I understand it- Adm. Barrie-To draw that to his attention. CHAIR-is to draw that to his attention. Adm. Barrie-True. CHAIR-And that is what you promptly set about doing. Adm. Barrie-Yes. CHAIR-We all agree that an omission or a failure to correct is equivalent to allowing an untruth to stand, and honesty, accuracy and prompt correction of error is fundamental to efficient operation. We all understand that. Adm. Barrie-My duty was to draw it to his attention. CHAIR-So those words you have quoted in your opening statement are fairly direct about saying, are they not, that this was wrong. Your tone would have reinforced that. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 783 Adm. Barrie-Well, there has been an error made, shall we say. CHAIR-Yes. Do you have any reason to believe that the minister did not understand that reasonably direct comment from you? Adm. Barrie-As I say, I cannot remember his precise response-in other words, what words he might have said-but 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. CHAIR-But if you were of the view that he did not understand, your mission in raising it with him in the first place would not have been accomplished and you would have needed to have reinforced it in some other way so that you got across to him the purpose you were holding the discussion in the first place. Adm. Barrie-Yes. CHAIR-So we can be confident, can't we, that you were satisfied that the purpose for this discussion had been achieved- Adm. Barrie-Yes. CHAIR-and that the minister had understood and received the message? Adm. Barrie-That was the impression I gained. CHAIR-That is why the discussion then turned to, `Well, next time we'd better get the photographs right.' Adm. Barrie-Yes. CHAIR-In looking at the consequential problems created by that transmission and understanding of information, the first consequence was, `For God's sake, next time let's get it right.' Adm. Barrie-Yes. CHAIR-That is understandable and reasonable. The other consequence was: what are we going to do to correct the mistake that has been made now. That would also have been an understandable, reasonable and proper thing to have done. Did that occur? Adm. Barrie-I do not know. CHAIR-Did you have a discussion with the minister along those lines? Adm. Barrie-No. CERTAIN MARITIME INCIDENT CMI 784 SENATE-Select Friday, 12 April 2002 CHAIR-Did he indicate to you, having understood your message, that there was anything he required of you or that he was going to do to correct the impression? Adm. Barrie-He required nothing from me. CHAIR-Did you suggest to him how it could be corrected? Adm. Barrie-No. CHAIR-Do you think that is a failing? Adm. Barrie-No. It has to go back in the context: the direction is pretty clear that the minister's office is running the media reporting for Operation Relex. I have drawn it to his attention. As far as I am concerned, he understood that. We had an agreement about how to manage photographs in the future, and that is where it lay. Senator JACINTA COLLINS-So it was not in this conversation that former Minister Reith indicated that he was going to drop the matter? Adm. Barrie-We were not going to talk about photographs again. We now had an agreement about how we would manage it; that is right. CHAIR-I know I am imposing on you, Senator Collins, and I will cease doing it because it is your call and I apologise- Adm. Barrie-I am sorry; you may have gained the wrong impression from that. In a context that we were going to drop this matter, it was at the end of this conversation when we had an agreement about how we would manage this in future. So I was now acting under direction from the minister that this is what we would do. CHAIR-Going to the consequential subjects that you went to after it was established that these were the wrong photographs, the first consequence was: next time we had better make sure that we get the same photographs and that we all know what we are talking about. The next consequence was: we will now drop the matter. Is that what the evidence is saying? Adm. Barrie-Yes. We had an agreement; we would drop this matter, and it was not said but it was my understanding that he would deal with the consequences. CHAIR-I will come back to this later because I do want to talk to you about why you would be satisfied at that point that the discussion had been properly conducted. What worries me is that the photographs were of naval ratings in the water rescuing people during an incident in which at least one naval rating that we now know of-it was a female midshipman, I think- displayed quite courageous action and dived off the deck, 20 feet above the water, and prevented a mature age woman and a child from being swept under the propellers of the ship and maybe dying. Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 785 CHAIR-That was quite heroic, and I think it is quite important for Australians to know of the competence, professionalism and courage of the defence forces. Was this subject not mentioned at all? Adm. Barrie-No. CHAIR-Did you not feel an obligation to at least prompt or suggest to the minister that the record as it stood publicly should be corrected? Adm. Barrie-I was not privy to everything the minister was doing. Indeed, as I said earlier, I still wait to see transcripts of everything the minister said. The only thing I was privy to was the press reporting of what the minister was saying and, indeed, I was not spending my day reading all the press reports either. So I am not in possession of the knowledge about whether or not the record was corrected. What I can say is: as far as I was concerned, this matter was not on my scope. CHAIR-We have just gone into another area. I am still back at the area. I am sorry to be dogmatic about it, but I am still back at the area. Adm. Barrie-I did not say to him, `What are you going to do about it?' I did not. CHAIR-Did you prompt him in any way? Adm. Barrie-No, I did not. CHAIR-Do you think it is satisfactory then, for the record? Your senior officers had reported to you, `On TV tonight, the minister said this. It was wrong.' You ring the minister and tell him that it is wrong and then you think, `Next time, we had better make sure that the photographs are right,' and then we drop the subject? Adm. Barrie-The minister directs and I advise. I have only served four ministers for Defence in four years. I have not met one that really appreciated me telling him what his job was. CHAIR-I am not suggesting that you tell him what his job is. Adm. Barrie-I have fulfilled my duty. I have brought it to his attention. We have had a discussion to make sure it does not recur. As far as I am concerned, because he is now managing the public affairs aspects, that is where it lies. CHAIR-I was a minister for eight years and I had at least eight heads of department, most of whom were not afraid of saying fearlessly to me, `We think you have got it wrong, Minister,' if that was what they thought. Senator FAULKNER-I do not think that ever had to be said very often at all. CERTAIN MARITIME INCIDENT CMI 786 SENATE-Select Friday, 12 April 2002 CHAIR-I would like to believe that, but I am human and I make errors. The interaction between fearless advice from the department, as a minister has to balance his responsibilities, is quite an important- Adm. Barrie-I understand the point you are making, but I did not pursue it. I regarded my duty as fulfilled. Senator JACINTA COLLINS-Just closing off on that issue, until Senator Cook comes back to it, did Minister Reith put it to you in this conversation that, whilst his comments might lead people to reach false impressions, technically what he said was correct? Adm. Barrie-No, I do not think so. Senator JACINTA COLLINS-I want to also go to your comments about the discussion with Mr Max Moore-Wilton. Was that also a testy one? Adm. Barrie-No, one does not have a testy discussion with Mr Max Moore-Wilton. Senator JACINTA COLLINS-But one does with the minister! CHAIR-It is a personality difference. Senator FAULKNER-I have had a couple of testy discussions with Mr Moore-Wilton. Senator BRANDIS-Perhaps people have testy discussions with you, Senator Faulkner. Senator FAULKNER-That is probably the reason. Adm. Barrie-Some might describe the discussion as heated. That would be the way I would describe it. Senator JACINTA COLLINS-It is just that I have a recollection of earlier comments where you were indicating you were having to be quite adamant- Adm. Barrie-I was being quite adamant. Senator JACINTA COLLINS-about safety of life at sea issues. Adm. Barrie-I was. Senator JACINTA COLLINS-Is that why also you then immediately afterwards spoke directly to the minister? Adm. Barrie-Yes. Senator JACINTA COLLINS-You felt the need to convey to the minister that you were being put into this situation? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 787 Adm. Barrie-I was not put into this situation, because, frankly, I command the Defence Force. The Defence Force will do what I command, but I did want the minister to understand that there was this view, if you like, that somehow or another we were in absolute control of where people would end up, even though they were all in the water. I just wanted the minister to be quite aware that we were not able to guarantee any of those sorts of results. Senator JACINTA COLLINS-And it was not Mr Max Moore-Wilton's purview, so to speak, to ensure that everyone rescued went onto the Adelaide? Adm. Barrie-That is a view that others have about how good our Defence Force is, but the practical issue is that, in these circumstances, our priority is on saving people's lives. The CO had called for as much help as he could get from Christmas Island. We could not give any guar- antees where these people were going. I tell you one thing: we had to be absolutely sure that nobody's life should be lost. That was the priority. CHAIR-Sorry, Senator Collins, but I understood that, by prearrangement between Senator Faulkner and Senator Brandis, the call would rotate to government senators at about this hour. Senator JACINTA COLLINS-I have one more question and that concludes all that I am doing. Senator BRANDIS-Always indulgent of you, Senator Collins. Senator JACINTA COLLINS-Thank you, Senator Brandis. CHAIR-This outbreak of politeness is stunning. I hope it remains. Senator BRANDIS-It must be because it is Senator Faulkner's birthday. Senator FAULKNER-I knew you would get that in some time. Senator JACINTA COLLINS-Admiral Barrie, I want to go back to the issue that was canvassed earlier, which was the dot point at the bottom of page 23 of your statement and the comments earlier on page 22 where you indicate a belief that there is an obvious discrepancy in relation to Commander Banks's evidence. At the dot point at the end of page 23 it seems there is expressed a view that information he had provided in writing was erroneous. Do you still stand by those statements? Adm. Barrie-As I said earlier, coming out of the estimates I had a whole bunch of material thrust in front of me. I had a view that there was a set of messages like this and a chronology that looked like that, and they seemed to me to be quite different in nature. As I trawled through that material over the weekend, it was just one of those sorts of issues that I wanted to clarify. You can say that those words, given what is said in sit rep 7, are-your words-a matter of logic 0101. Fine, but that is not meant to be a criticism of Banks; that is meant to illustrate the sorts of questions I wanted to resolve with him. CERTAIN MARITIME INCIDENT CMI 788 SENATE-Select Friday, 12 April 2002 Senator JACINTA COLLINS-Yes, I know. But the part I picked up was more what was reinforced by this point on page 23, which was that he had provided erroneous information. I concur with Senator Faulkner-and I am interested in your view-which is the written information that came from Commander Banks has been completely consistent and the question, really, is the difference in view about the oral communication between Commander Banks and Brigadier Silverstone, which is yet unresolved. Adm. Barrie-No. I understand the one about the oral bit. But on the one in writing, I was shown a whole range of material during estimates which was not consistent with that message of 10 October. It is the reason why I persisted in maintaining my view about the events- because I could not be persuaded of that chronology. By way of logic, as I think I said in estimates: some people went over the side; we picked up 14 people; there were no children in those people; therefore no children went over the side. Those are my words. That was the picture I had in my head. It was inconsistent with this other material that I was reading, and I just wanted to make sure for myself about the reality of events that occurred on the 7th. Senator JACINTA COLLINS-I suppose what I am asking you, though, is that the example of what you have provided on page 22 does not indicate a logical inconsistency. Is there some other inconsistency, then, that you are referring to? Adm. Barrie-Sorry, can you just explain that again. Senator JACINTA COLLINS-The example that you have provided on page 22: ... "suncs" jumping or being thrown overboard. is used here as an example of what you see as an obvious discrepancy. We have been through how that is not logically a discrepancy. I am asking : is there something else that led you to believe there was a discrepancy? Adm. Barrie-No. That is the sort of item I am on about. Senator JACINTA COLLINS-Okay. I think it is very important to clarify this on the record, because the commander of the Defence Force indicating that a commanding officer of a ship has provided erroneous information, without being put in the context that we have just discussed, would be quite concerning. Adm. Barrie-I think it is important to see it in the context. It was a reason for calling Commander Banks. Senator JACINTA COLLINS-Yes. So it was an impression in your mind rather than an established fact. Adm. Barrie-It is an impression in my mind. That is important. Senator JACINTA COLLINS-Thank you. Senator BRANDIS-Admiral Barrie, I would be right-would I not?-in thinking that the reliability of reports received up a chain of command or a chain of reporting is a very important value for the Navy- CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 789 Adm. Barrie-Yes. Senator BRANDIS-that one of the professional skills in which naval personnel and in particular commanding officers are trained and in which they accomplish a high level of expertise in fulfilling is the ability to provide reliable reporting- Adm. Barrie-Yes. Senator BRANDIS-and the Navy relies heavily upon that capacity in order to make opera- tional and command decisions? Adm. Barrie-Correct. Senator BRANDIS-Would I be also right in thinking that it follows from that that when a report has been received, in particular from a commanding officer in an operational situation, that report would not lightly be disregarded or set aside or changed? Adm. Barrie-I think I can agreed with that, with the only proviso being: provided his superior commander was not in receipt of other information. Senator BRANDIS-Quite. I understand that. There seems to me, I must say, a degree of artificiality about a lot of this discussion because it assumes that there was not a status quo about the reportage of the SIEV4 incident, whereas from the time the first report went up the chain, through Brigadier Silverstone to Air Vice Marshal Titheridge, there was in fact a status quo as to the reporting. And that status quo was the initial report that suggested a child had been thrown overboard. Do you follow me? Adm. Barrie-The events begin with the initial contact. Senator BRANDIS-Yes. So that initial position, the reliability or, if you like, the authority of that initial report, would not lightly be set aside. It might ultimately have to be, as indeed, in this case, it was. But it would not be lightly set aside-would you agree? Adm. Barrie-I agree. Senator BRANDIS-Nor should, as a matter of proper procedure, such a report lightly be set aside? Adm. Barrie-No. Senator BRANDIS-And you as the ultimate commanding officer of the military would in fact be-may I suggest to you, with respect-behaving quite inappropriately were you to disregard or set aside a report on the basis of which decisions had already been made, unless you were well satisfied that it was wrong? Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT CMI 790 SENATE-Select Friday, 12 April 2002 Senator BRANDIS-I do not want to fall into lawyers jargon but I may have to be forgiven for doing so once. There is sort of an onus of proof on those who seek to establish a contrary version of events to demonstrate that the initial report is wrong, and until that is demonstrated the initial report stands? Adm. Barrie-These would be my words: as a concept that was what underpinned my response to the raising of doubts-that is, unless you can persuade me that is wrong I will stand by my advice. Senator BRANDIS-Yes, absolutely. CHAIR-Onus of proof is not the construct, though, is it? Adm. Barrie-No. I was just saying, in my words- CHAIR-I will get my chance later, so I will not interfere with Senator Brandis now. I just want to mark this spot, because I think this is a very contestable argument. Senator BRANDIS-Whether we use the language of onus of proof or degree of persuasion or degree of satisfaction, you need to be persuaded- Adm. Barrie-I need to be satisfied. Senator BRANDIS-or satisfied that the initial report is wrong before you abandon it? Adm. Barrie-Yes. Senator BRANDIS-And until you reach that level of persuasion or satisfaction, all you can do is continue to act upon it-would you agree? Adm. Barrie-That is correct. Senator BRANDIS-And I must say, with respect, Admiral Barrie, I am not a military person but I, for the life of me, having read your statement, cannot see what else you could have done in these circumstances. Let me take you through the chronology very quickly, if I may. You start off by saying-this is at page 11-that when you first received the information: I assumed that the information had come through the chain of command, obviously initiating with the Commanding Officer of the Adelaide, Commander Banks. So when you first received the information, you had no reason to believe that what was reported to you was controversial or doubtful? Adm. Barrie-No. Senator BRANDIS-As I follow your statement, the first occasion upon which evidence comes to you to suggest that there is an element of controversy about the information that has been passed up the chain of command is on 11 October, when you were telephoned by CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 791 COMAST, who told you that `there were now doubts about whether children were ever thrown overboard', and you do not remember him being more definite that that. Adm. Barrie-Yes. Senator BRANDIS-That is the first occasion-that is 11 October-when somebody raised a doubt. Adm. Barrie-Yes. Senator BRANDIS-COMAST was not a witness to any of these events of course, was he? Adm. Barrie-No-nor was I. Senator BRANDIS-And of course we know that you were not. COMAST, during the 11 October conversation, advanced no specific basis of fact why it might be that there was controversy about the initial report. He simply alerted you to the fact that there was a controversy. Adm. Barrie-Even `controversy', I think, is a strong word. Senator BRANDIS-What word would you choose? Adm. Barrie-I go back to `doubts'-simply for the reason that this was not a raging controversy. The picture that I was left with as an impression was that somebody who had, let us say, access to photographs could not find in those photographs any evidence of somebody being thrown overboard. Therefore, there are doubts whether this event actually happened. This was all verbal, as I am aware of it. Senator BRANDIS-Am I right in understanding you to be saying that on 11 October you for the first time learnt that some people entertained doubts about the accuracy of the original report but that by 11 October you yourself had been apprised of no new fact or piece of information which would satisfy you that the initial report was wrong? Adm. Barrie-That is correct. CHAIR-Nor had you sought any information to corroborate the doubts. Adm. Barrie-As I said earlier, I had left it open for COMAST to come back and to refer back to our conversation of 20 February. I am left in no doubt: he understood that opening. I think, in retrospect, I should have said to him, `I want you to sort this out by Friday.' CHAIR-I will curb my enthusiasm; Senator Brandis does have the call. Senator BRANDIS-I do not want to be too judgmental about this; I just want to establish what you knew at various times, Admiral Barrie. So you were told on the 11th that doubts had CERTAIN MARITIME INCIDENT CMI 792 SENATE-Select Friday, 12 April 2002 been raised in the minds of some, but you yourself had no basis at all to abandon or cease to rely upon the authority of the original report? Adm. Barrie-Yes. Senator BRANDIS-You briefed the minister prior to your departure overseas-you say it was possibly on the 17th-and you mentioned that there were doubts. This is in the last paragraph of page 16 of your statement. But may I take it that by that stage you knew nothing further to contradict or countermand the initial report beyond having been told in some unspecified way that doubts had been cast on the report? Adm. Barrie-That is right. Senator BRANDIS-And that is where it stays until after 10 November? Adm. Barrie-For me? Senator BRANDIS-For you. Adm. Barrie-Until 12 November in fact. Senator BRANDIS-So from the time that you had received the initial report-which you had, at the time you received it, no reason to doubt and, according to the ordinary operational procedures of the Navy, you had every reason to regard as a reliable report-you were in fact told once by an officer who was not a witness that there were unspecified doubts about it, but nothing was put before you to give you any ground to abandon or vacate that which you had initially been told? Adm. Barrie-No-although it has to be said of course that the Chief of the Navy raised the same doubts with me. Senator BRANDIS-But he was not a witness either. Adm. Barrie-He was in no better circumstance than Rear Admiral Ritchie. Senator BRANDIS-No witness in fact had expressed doubts to you, certainly by 10 November. I am taking 10 November as a line in the sand because that was the election day and there are some senators here who think this has something to do with politics. So come 10 November no witness to any of these events has raised any doubts with you at all, but two people who were not witnesses have reported the fact that doubts exist in the minds of some. Adm. Barrie-That is correct. Senator BRANDIS-May I suggest to you, Admiral Barrie, that by that stage your proper professional course and professional judgment would have suggested that you do precisely what you did do-that is, continue to uphold or adhere to the initial report? CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 793 Adm. Barrie-That was certainly my judgment. Senator BRANDIS-Then Air Marshal Houston, the head of the Air Force, who was also not a witness to any of these events, has a conversation with you on 12 November- Adm. Barrie-Yes. Senator BRANDIS-at a time beyond any political materiality in this for the purposes of the election campaign. So, having heard what he has to say, you establish an inquiry. Adm. Barrie-That is right. Senator BRANDIS-And you forbear from concluding a position at variance with the initial report while the inquiry is doing its work. Adm. Barrie-Yes, that is correct. Senator BRANDIS-And-I ask only rhetorically-what else could you have done? Adm. Barrie-I cannot see anything else that I could have done. I think the importance of commissioning Major General Powell's inquiry was I wanted to get to the bottom of whatever it was that took place. I wanted to be able to correct anything that was at fault inside our system. Senator BRANDIS-Yes, absolutely. Adm. Barrie-I thought that was a good purpose for it. Senator BRANDIS-May I sum it up in this way, Admiral Barrie: certainly beyond 10 November you had no basis to vacate your reliance on the report as it was originally received by you up the chain of command. Adm. Barrie-No, not in my opinion. Senator BRANDIS-You go on to say that you became aware during Senate estimates of the cable of 10 October. May I take you, please, to the statement of Commander Banks. I am just going to put Commander Banks's statement before you, Admiral. It contains some extracts of signal traffic from the Adelaide. Adm. Barrie-Yes. This was to the Powell inquiry? Senator BRANDIS-Yes. While it is being looked at, perhaps I could ask you this question: when did you first read the witness statements? Adm. Barrie-I read most of them, but not all of them, on 20 February. Senator BRANDIS-When did you first become aware that witness statements had been taken? CERTAIN MARITIME INCIDENT CMI 794 SENATE-Select Friday, 12 April 2002 Adm. Barrie-From Powell? Senator BRANDIS-No, witness statements of the crew of the Adelaide had been taken. They were all taken, I understand, on 10 October. Adm. Barrie-I think that was a consequence of my direction that witness statements were to be taken. Senator BRANDIS-But they did not come to you until February? Adm. Barrie-No. Senator BRANDIS-All right. Adm. Barrie-Sorry, they did come to me as part of Powell's report in December. I read Powell's report; the enclosures I did not go through at that time. Senator BRANDIS-So you did not read the witness statements- Adm. Barrie-As I say in here, I basically set Powell aside, apart from making sure that the Bryant inquiry would have the benefit of Powell's findings. Senator BRANDIS-Do you have before you now, Admiral, the Banks statement to the Powell inquiry? Adm. Barrie-Yes. Senator BRANDIS-I would like you to go, Admiral, to an inclusion in that, which is embodied in the text a bit, which is a cable by Commander Banks dated 11 October. Its reference number is 110330Z. It is about three or four pages in. Adm. Barrie-Right, got it. Senator BRANDIS-Commander Banks gave evidence at some length of the circumstances in which this was created. May I remind you that it was prepared by him four days after the event, and his evidence was quite explicit that at the time he prepared this document he had not read the witness statements, although the witness statements- Adm. Barrie-He had not read the witness statements? Senator BRANDIS-He had not read the witness statements-that was his evidence- although the witness statements had been prepared the day before. Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 795 Senator BRANDIS-May I take you to the second page of it, paragraph 11. He is now recording on the basis of his memory, this not being a contemporaneous record, what he saw, and his evidence was also that this was broadly sequential. It says this: 11. At some stage I saw a young male teenager estimated at 13-15 leap over the side from the SIEV's superstructure. I also witnessed 2-3 adult males do a similar leap. UBAS were also entering the water from the vessel's stbd side out of my view but I could later see their heads bobbing in the water. I interpolate to say that it was also Commander Banks's evidence that he did not see the people go into the water; he saw them when they were already in the water. It continues: I received frequent radio reports about these manoverboards and "possibly"- presumably an intended emphasis of the word `possibly'- heard that children were also in the water. So possibly that was reported to him while the incident was taking place. Adm. Barrie-Yes. Senator BRANDIS-He deals with the incident of the little girl in the pink jumper being held overboard and deals with that in paragraph 12. If you go to paragraph 14, he says: 14. Throughout my boarding party and the other witnesses on the bridge wings- so that is two groups of witnesses- were advising that they could see more jumpers, some men, some boys and some children. Reports of the number who entered the water varied greatly. Those pieces of information relevant to the question of children in the water as opposed to a child being held over the water were in Commander Banks's mind at the time he speaks to Brigadier Silverstone, which he deals with a couple of paragraphs on. When did you first become aware of this cable? Adm. Barrie-I saw this material the day of Senate estimates. Senator BRANDIS-May I suggest to you that, if one were to look at that cable in isolation-and I am not saying you should have looked at it in isolation but I want to take it step by step, as it were-that cable is evidence that there were children in the water, not evidence that there were not. Adm. Barrie-That is right. Senator BRANDIS-May I take you then to the witness statements. I do not need to take you to any others than Able Seaman Gerrits, to which you have also referred. He is one of the witnesses. He says: ... I believe one child also went overboard. CHAIR-He goes on and says: All persons who dove overboard did so by their own accord ... Senator BRANDIS-May I ask my own questions, please. CERTAIN MARITIME INCIDENT CMI 796 SENATE-Select Friday, 12 April 2002 CHAIR-Yes. I just want to get it right. Senator BRANDIS-He said: ... I believe one child also went overboard. That, as far as it goes, is evidence to support that proposition, that there was one child overboard. Adm. Barrie-Yes. Senator BRANDIS-So far as it goes. CHAIR-No, that is evidence that he believed one child was overboard. Senator BRANDIS-The fact that he had that belief is evidence that the belief was founded in empirical fact. CHAIR-It is not. Senator BRANDIS-Mr Chairman, I am not going to debate this with you now. We have only got half an hour left. CHAIR-I know, and I do not want to intrude, but it is not, because there are so many other conflicting pieces of evidence about the facts. Senator BRANDIS-I am not suggesting this evidence can be taken in isolation, and that is not where these questions are going. Can you bear with me, please, Senator Cook. CHAIR-I will. Senator BRANDIS-There are 15 other witness statements. We do not have time to go through them each one by one, but may I tell you that of the other 15 witness statements there are seven witness statements-those of Hynes, Naree, Nixon, Barker, Piper, Von Kelaita and Skells-which simply do not speak to the question of whether or not there were children in the water. It is just not mentioned. Certainly they provide no support for the view that there were, but they provide no support for the view that there were not. They are silent on that question. Adm. Barrie-Yes. Senator BRANDIS-Another six-that of Letts, Koller, Chapman, Blennerhassett, Black and Gullidge-say: `I did not see any children in the water.' And there are only two-that is, those of Heedes and Walker-who assert affirmatively there were no children in the water. Adm. Barrie-Yes. Senator BRANDIS-So the suggestion that 15 of these 16 witness statements demonstrate that there were no children in the water is in fact quite wrong. Two of them are evidence that CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 797 there were no children in the water; 13 are silent on the matter or take the matter nowhere, and one of them is evidence that there were. Adm. Barrie-Yes. Senator BRANDIS-There is then the consideration that there was no report of a child having been lost or recovered from the water, and Commander Banks's evidence was that that was a factor he retrospectively took into account in arriving at the conclusion that there was no child in the water. My question to you, Admiral, is this: given the state of the evidence-that is, the existence of some evidence which I have taken you to, and I do not say it is all the evidence-that is supportive of or consistent with the initial report, and the existence of other evidence, including the circumstantial evidence that no children were recovered from the water, at what point do you consider you could have been satisfied that there were no children in the water? Adm. Barrie-It comes from a telephone conversation that I had with Banks which reversed the issue of `How can you be sure about the numbers of people who entered the water?' So, to go back to my frame of reference, `How can you be sure people did not enter the water that you did not know about', he said-and these are his words-`We counted them off specifically and we counted them back on board.' Senator BRANDIS-So your ultimate decision to have the press conference after Senate estimates was made having been persuaded, in effect, by Banks that this was a black and white issue. Adm. Barrie-Absolutely. Senator BRANDIS-Commander Banks on 11 October-which was only four days after the incident, not four months after the incident-said this at paragraph 21 of the cable of 11 October: I HAVE SINCE BEEN QUESTIONED REPEATEDLY ABOUT THIS EVENT (AND TO A LESSER EXTENT OTHERS) AND I AM NOW SO FULL OF CONFLICTING INFORMATION OF WHAT WAS SEEN AND HEARD BY OTHERS AND ME AND STATED BY OTHERS AND ME THAT IT IS DIFFICULT TO RECALL WITH ABSOLUTE VERACITY. NEVERTHELESS I AM PREPARED TO ATTEST TO WHAT I SAW. And he goes on to say, and this is not controversial: I DID NOT SEE ANY CHILDREN IN THE WATER. Nobody disputes that he did not see any children in the water. I wonder how Commander Banks, more than four months after the incident, having received no new information of which he was not in possession four days after the incident, could have been so much more certain four months afterwards than he was four days afterwards. Adm. Barrie-I think that is a good question, and of course only Commander Banks can answer that. But to respond to where I think you might be leading, it was for me the positiveness of the statement that they had counted them off and they had counted them back on board. The witness statement does float around a bit about numbers. So there was that statement of his, and, secondly, the fact that there were professional people in the SIEV who they had specifically gone through with to assure themselves that they had on board that SIEV all the people that should have been there. He made the point to me there were doctors, chemists and CERTAIN MARITIME INCIDENT CMI 798 SENATE-Select Friday, 12 April 2002 professional people who could speak good English and that they had a conversation and that. I put those two things together and said, `All right; he on his own cognisance is now being 100 per cent absolutely sure this did not happen.' Senator BRANDIS-I think everybody is persuaded that, at least on the balance of probabilities, as it were, there was not a child thrown into the water from SIEV4. But the point of my questions is to demonstrate to you that, in fact, it is not right to say that all the evidence was one way. Adm. Barrie-No. That is right. Senator BRANDIS-There was a body of evidence that there was a child in the water. I suggest to you, Admiral, that it would have been absolutely wrong and indeed, to put it bluntly, incompetent of you to have acted at variance from the initial report, particularly having regard to the conflicting state of evidence before the inquiries that you subsequently and quite properly commissioned had exhausted themselves. Adm. Barrie-Thank you for that, but I think that-again this is in retrospect-if I had commissioned Ritchie to sort it out back in that week of October then, I guess, firstly, we would not be here and, secondly, the Australian Defence Force would have been saved a great deal of harm and potential questions about its reputation. That is something I do regret not having done. But, setting that aside, had I made my inquiry on 24 February and Banks had not been able to assure me absolutely that no children went over the side then I would be standing here today still defending my position. Senator BRANDIS-Thank you, Admiral. I have questions on two other unrelated matters. I take you to some evidence that you gave to estimates-it is on page 72 of the Hansard-in response to some questions from Senator Faulkner. He refers to the initial report that people were thrown over the side on the 7th, and you said: I was not surprised by the report, simply because this is the nature of this sort of work and it is the nature of the responses these people engage in. There is quite a long history of defence forces being involved in these operations, and that is certainly typical. I pause there to ask you whether it is your evidence that the sort of behaviour described in the initial report of 7 October was, to your knowledge and on the basis of the operational experience of the Navy, typical? Adm. Barrie-I am trying to seek some further clarification which I think is relevant to my judgment in this respect. I have had done a trawl of the naval history of these sorts of incidents. Senator BRANDIS-While that is being looked for, perhaps I will move on to the next question that I want to ask you, again arising from your evidence in estimates. You went on in the same answer to say this: ... I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. Do you remember giving that evidence, Admiral? Adm. Barrie-Yes. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 799 Senator BRANDIS-I see you are distracted. Do you want to go back to the first question, or deal with the second now? The first proposition is that this behaviour is typical, and I asked you to elaborate on that, so perhaps you would like to do that. Adm. Barrie-This is important because in a sense it does frame my attitude to this advice. I had a colleague in the Navy 20 years ago who commanded a Loch class frigate in the Mediterranean after the Second World War. I recall quite distinctly that, on one occasion, we had quite a long discussion about conducting operations just like these when Jews from Europe were trying to get back into Palestine. I will find this in a minute because it is highly relevant. CHAIR-This is when the Stern gang was operating, is it? Adm. Barrie-Yes, 1947. It was the arrest of the SS President Warfield on 18 July. It sets out in this little chronology a range of issues about that. There were five frigates attempting to deal with illegal immigrants and the tabular quotes of illegal immigrants entering Palestine in this way were: in 1945, 641; in 1946, 20,099; and 1947, 12,486. The point I am trying to drive at here is the sort of behaviour that desperate people in this situation get up to. I will quote from the last two paragraphs of this report: The following factors caused the Jews to throw up the sponge before control of the ship had been lost. The crew did not know where they were, or even what course to steer; the superstructure damage caused many of them to think the ship was unseaworthy; a large number of casualties were crying out for medical attention; and finally they had had enough. The Jews had three men killed, two by cosh and one shot by a ship's bren-gunner when in the act of shaping up to cleave a sailor with an axe. Twenty-eight were admitted to hospital and a further 200 were treated for injuries on board. They were serious events. They were a consequence of the war; it was a serious operation for the Royal Navy. It is kind of interesting that the Royal Navy still has in its doctrine the requirement to conduct operations such as these. Those histories are important to understanding the nature of these types of operations. Senator BRANDIS-So, when you said at the estimates hearings that `that behaviour is certainly typical', that was an observation based on not merely this particular sequence of events to the north-west of Australia but also a long history of your knowledge of naval involvement elsewhere in the world in operations of this kind? Adm. Barrie-I have assembled a range of things. If the committee wants to have a look at them, I am happy to table them. Senator FAULKNER-I am terribly sorry but it has just been drawn to my attention-you might have tabled it a little earlier-that there is an inaccuracy. I just wonder if you would check. It says on your command of operations on 7 October 2001, under Admiral Gates's signature-there are 15 and one of them is Cranberry. I thought we were told that the lead agency for Operation Cranberry was Coastwatch or the Department of Immigration and Multicultural and Indigenous Affairs, or does that mean you were just commanding the Defence elements of that? Adm. Barrie-Cranberry is the Defence operation in support of the civil authority. CERTAIN MARITIME INCIDENT CMI 800 SENATE-Select Friday, 12 April 2002 Senator FAULKNER-I must admit that I misunderstood that, because I thought that Admiral Smith was indicating that the lead agency in Operation Cranberry was not Defence. I do not know if other senators understood that to be the case. Adm. Barrie-I should be able to clarify that in a minute. Senator FAULKNER-You can take it on notice. Senator BRANDIS-Admiral Barrie, I want to take you to the next part of your answer, where you said: ... I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. May I take it that the activity to which you are referring is the activity on the SIEV vessels. Adm. Barrie-No. The way I would see that is this: our mission was to try to stop these vessels entering the Australian migration zone. We had deployed the Defence Force to make sure that happened. What I am referring to there is that the behaviour on board those SIEVs varied from time to time. There was a range of methods used to try to frustrate our successful conduct of the mission. I think that it was these people being told how to try to thwart our objectives. Senator BRANDIS-So your evidence is that the Navy became aware that the people occupying the SIEVs were being briefed at the ports of departure before they set out on these voyages to try to enter the Australian territorial sea as to what kind of conduct to engage in to frustrate the Navy's efforts? Adm. Barrie-Yes. Senator BRANDIS-And that includes the conduct of which we have heard so much evidence about in this inquiry, among other things, the threats to throw children overboard? Adm. Barrie-That is right. Senator BRANDIS-Finally-I think you have probably already covered this but just for completeness-are you satisfied that at all times throughout these events, and also in the reporting up the chain in the military and to government of these events, the Australian Defence Force behaved in a professional and non-political manner? Adm. Barrie-I am satisfied that, as far as my advice to the government and the way in which our people have behaved is concerned, that statement is true. I am not satisfied that we got it right, and we will correct that, because these kinds of operations, as I said in my opening statement, will be important to us in the 21st century. We are on the record as saying that the nature of operations for the Defence Force is likely to change because the sorts of capabilities that we have and we can field will be needed to combat some of those more serious threats of transnational crime and so on. CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 801 Senator FERGUSON-I think it is fair to say that, when your other senior serving officers have appeared before this committee and have been asked to detail and dissect the events of 7 to 10 October, I cannot remember any of them not saying that it simply was not an issue at the time. I do not think I am putting words in Senator Cook's mouth when I suggest that he said that it is a highly political and sensitive issue which may have had some effect on the course of an election campaign. I jotted down some notes when Senator Faulkner talked about the sensitive environment of the election campaign and how it may have caused a couple of his colleagues to not be re-elected. I think you said in your statement-I am sorry, I missed some of it because I had to leave-that you had a number of formal and informal meetings with the Leader of the Opposition during that time. Can I ask you on how many occasions he raised with you this potentially election-losing issue that occurred between 7 and 10 October. Adm. Barrie-On no occasion. Senator FERGUSON-On no occasion? Adm. Barrie-No. Senator FERGUSON-On no occasion did he raise this issue which has been said affected the election chances or maybe helped the election chances of the government? Adm. Barrie-To put it in context, on two occasions I conducted a formal briefing. Senator FAULKNER-At his request. Senator FERGUSON-I accept that. Adm. Barrie-We were entering a major commitment, and clearly that had to occur. I also spent quite a lot of time with him in the farewell to the SAS squadron in Western Australia. I also shared some time with him on a VIP aircraft where we were the only two passengers. Senator FERGUSON-And at no stage he raised the issue of the so-called `children overboard'? Adm. Barrie-No. Senator FAULKNER-Because he believed Defence, and he believed they were being honest. Senator FERGUSON-Senator Faulkner, I think I have the call. Senator FAULKNER-Let us make it clear. Senator FERGUSON-I am making it clear too, because it was such an important issue that on no occasion was it raised by the Leader of the Opposition during the election campaign. Is it fair to assume that this issue of SIEV4 has taken on far larger proportions, and far more public interest, post the election campaign than it ever did during the period of the election campaign? CERTAIN MARITIME INCIDENT CMI 802 SENATE-Select Friday, 12 April 2002 Adm. Barrie-I regard with some concern the priority this matter is getting both in the public domain and with key decision makers in this country. We do have some very serious circumstances in front of us. We have a situation in the Middle East which, in my view, is out of control and which could easily lead to very serious consequences for us all. We have the spectacle of the events of September 11, and I think frankly we are seeing far too much complacency from people who think we have somehow solved this problem. I would just say to people, `What do you think is going to happen on 11 September this year?' because I think we are all too easily persuaded somehow or another by our contribution in Afghanistan that we have dealt with this problem. We have not, and many of us are still very concerned about what is going to happen next. I do not have those answers. I can tell you that there are some key analysts in the United States and there are analysts in this country who are forecasting a prospect of the third world war. I put it to you: these are seri- ous times in that sense. I am not trying to underestimate the value of this committee's work in making us a better ADF-I am not trying to say that-but, in that sense, we have to concentrate on what is really important. Senator FERGUSON-In fact what you are really saying, in the light of how this issue has developed since the election campaign, is that at the time it was simply the reporting of an incident that occurred in the normal reporting that goes on on a daily basis from the Navy to the Head of Strategic Command. Adm. Barrie-When I say in my evidence these issues are not uppermost in my mind, I have to run my life on a priorities basis; otherwise, frankly, the job would kill you. The priorities for me are: we are going to get engaged in a very serious coalition with the United States and other countries, we have some very heavy lifting to do in that coalition, we have invoked the ANZUS treaty for the first time in my career and in history, the Australian community is very strongly supportive of the United States action, and we had better make sure that our forces are going to be deployed in that coalition on conditions which we are in control of and in circumstances of which our community, our government and everyone would approve. We do not want to have a repetition of a Vietnam War. I say to anyone who will listen that the legacy of the Vietnam War was finally overcome with the commitment in East Timor. I think that has been a very serious issue. Just look at the Vietnam vets; so many of them are still suffering from what they did. We have got to just focus on getting that right. So when I say that the headquarters was under a lot of stress in October, a quick way you can just check how stressful that might have been is to look at the coalition web sites of the war against terrorism in the United States just to see at that time what was going on. We were having to put in place liaison through central command, Pacific command, Washington. We had to try to find out what the Americans were thinking of doing. They were very interested in talking to us about how we might shape the right Australian contribution. They offered all assistance short of real help in finding the basing in the Middle East, so I sent the Chief of the Air Force to do that. Then of course we had the priority for actually doing something. So it was enough for the government to say, `We've invoked the Anzus treaty,' but here we are two weeks later and nothing is happening. And, of course, in our community-and I think this is very bipartisan in nature-the expectation that we were going out to do something about this was very high, and we really had to get going. So these were the sorts of issues that CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 803 were one set of focus. On top of that we had East Timor and all the other commitments we had on our plate, so I think the organisation focused on SIEV4 for the period of about two days and it then moved on to deal with the next priority-and that wasn't it. Senator BRANDIS-I must say, Admiral Barrie, having heard what you have just said, I compliment you on the eloquence with which you have described the pressures under which the ADF was acting at the time. It seems almost self-indulgent of anyone to be concentrating so heavily on SIEV4 as if it were a particularly important matter. Plainly, in the context of the military's operations at the time, it was not. Adm. Barrie-The operational perspective is that that was another ADF success-let there be no doubt about that. Let there be no doubt about the quality of the people that were involved out there dealing with that situation as it arose. Nonetheless, it is important that we sort out and we rectify our processes and procedures to make sure this does not recur. CHAIR-But it would be of concern to you-wouldn't it Admiral?-despite- Senator FERGUSON-Mr Chairman, we have only about six minutes left, and we have not had- CHAIR-I know. But let us not get too sanctimonious up this end of the table. Admiral, it would be of concern to you, as someone whose job it is to defend Australian democracy, if an election were stolen or subverted by the failure of information that was highly emotional and coloured to be corrected? That would be of concern to you as a major issue, wouldn't it? Adm. Barrie-Where I have a bit of difficulty with that is that it presupposes the way in which voters exercise their vote. I would have to be candid and say I do not think the Australian community is foolish. CHAIR-Did you see the television, radio and newspaper coverage of this incident in full? Adm. Barrie-No, I did not. CHAIR-Have you seen it yet? Adm. Barrie-No. I still have not seen the transcript of what was sent out. CHAIR-Then perhaps you are not in a position to make a comparison. Adm. Barrie-I accept that I am not a politician. Senator FERGUSON-If we can return to my question and put this incident into perspective, I heard Senator Cook raise the issue of the brave sailor who dived overboard to save a couple of people, and he said that this should be made known to the Australian public. I would imagine that in the other 11 SIEV incidents there were very many other brave sailors who put themselves at risk to save people in the water-some 33 children in one instance-and CERTAIN MARITIME INCIDENT CMI 804 SENATE-Select Friday, 12 April 2002 all those are not going to be made public. So this is just a normal course of events for serving personnel, isn't it? Adm. Barrie-I have to say it takes a great deal of courage to be one of 15 people boarding a vessel like one of these that has got 200 pretty angry people on board. We are very fortunate that our people have a very good mix of downright courage, resourcefulness and compassion. I think that, as in East Timor, the way they are managed themselves in this situation is simply outstanding. I have a worry that if you leave people in these operational situations for too long, some of those elements start to disappear-the compassion starts to disappear or they become hard-nosed. I do have a worry about those sorts of things. On all information I have-and I do not have the complete record; you have a much more complete record than I have-our people are just outstanding. Senator FERGUSON-The other question I want to ask is important. Much has been made of what information was given to the minister about the SIEV4 incident. Through the chain of command, did you then inform the minister fully of all of the other SIEV incidents in detail in the same way that SIEV4 has been mentioned? Adm. Barrie-Yes. Senator FERGUSON-So he was aware of all of that information of the activities that took place on the other SIEV vessels throughout the whole of the election campaign? Adm. Barrie-No, I could not say that. What I can say is where there were important issues that I thought the minister needed to know about from me, he was informed. Senator FERGUSON-For instance, on SIEV7, on October 24, would he have been fully informed then that a child had been dropped overboard? Adm. Barrie-I would have to check; I do not know the answer to that. I can point to other circumstances where he and I were talking over most of the night in another example, where we had a very tenuous situation on our hands and we had boarding parties going on and boarding parties coming off and so on. Each case is different, each case has got to be managed in a quite separate way, and where it is appropriate I certainly inform the minister. Senator FERGUSON-So in fact there were a number of other incidents that went on during the election campaign which the minister and/or the government chose not to make public? Adm. Barrie-I cannot speak to that, but certainly there were other incidents that took place during the election campaign. Senator MASON-The evidence, as I understand it, from Air Vice Marshal Titheridge and Rear Admiral Smith is that the Maritime Commander would create a synopsis of all the SIEV incidents that went to Air Vice Marshal Titheridge. He gave evidence earlier today that that information was copied to a whole list of people. Senator Ferguson is raising this issue because the evidence that the committee has adduced over the last several days is that, in terms of the CERTAIN MARITIME INCIDENT Friday, 12 April 2002 SENATE-Select CMI 805 whole panorama of SIEV incidents, SIEV4 was in fact quite minor. They were much more serious in SIEVs 7, 9, 10 and 12. Adm. Barrie-In terms of the operational circumstance, that is true. Senator MASON-Yes. And threats to life. Adm. Barrie-On one occasion we withdrew the boarding party because we thought the only alternative they would have would be to use lethal force. Senator MASON-So what has been hidden somewhat but is starting to emerge is that, despite claims from the opposition that the government used SIEV4 for political purposes, the government had so much more information on quite serious threats to life, sabotage and a child dropped overboard in one particular instance, yet that was not made known to the public. Until Senator Brandis raised those issues a week or so ago we did not know about it. Why didn't we? There are two possibilities: either the minister knew about it and decided not to release it, and so he did not make political capital out of it; or he did not know. It looks like it was the former, which gives the lie to a lot of what the opposition is claiming. Adm. Barrie-I think the minister was in possession of the knowledge. Certainly on a few occasions I can attest to that personally. Senator MASON-One last question, if I may, just to wrap the future up. On page 26 of your statement, Admiral, you say that at the press conference on 27 February `I also announced the establishment of a high-level task force headed at two- star level so that we could get answers about the problems we had and put in place solutions to them'. When will that committee report? Adm. Barrie-The task force is not going to report; it is actually going to do things. The task force is going to run until such time as Dr Hawke and I are satisfied the work is complete. It certainly will run until this committee has delivered its report. It may not be constituted the same way as it is now. It is certainly going to run until I am satisfied we have got a public affairs handling system that is adequate to the task. It is impossible for me to say right now, but my guess is that, if the committee completes its work by the end of May, I ought to be reasonably confident about 30 June. Senator MASON-So the onus of this task force is to reform the procedures such that an incident such as SIEV4 and the miscommunication does not happen again? Adm. Barrie-Yes. Senator MASON-And will you make public the results of that inquiry? Adm. Barrie-The actions that we have taken? Senator MASON-Yes. CERTAIN MARITIME INCIDENT CMI 806 SENATE-Select Friday, 12 April 2002 Adm. Barrie-Some of that is in my evidence already, of course. I imagine, when the committee has reported, the government in turn will table a response to the report. In the normal course of events, I would expect our actions to be tabled then. CHAIR-Thank you, Admiral. It is four o'clock. If we go beyond this hour, most of us will not get home tonight-or at least I won't-so we will to terminate the hearing at this point. Re- grettably, I have not had a chance to ask the questions I have, and I will find some way of get- ting those questions- Adm. Barrie-I would be quite happy to take them on notice. CHAIR-If that is the way they can best be dealt with, I will pursue that course. For the moment, thank you very much for your attendance. Committee adjourned at 4.02 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident TUESDAY, 16 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason. Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES FARMER, Mr William, Secretary, Department of Immigration and Multicultural and Indigenous Affairs ........................................................................................................................................ 808 HALTON, Ms Jane, Secretary, Department of Health and Ageing......................................................... 900 ILLINGWORTH, Mr Robert Laurence Mark, Assistant Secretary, Onshore Protection, Department of Immigration and Multicultural and Indigenous Affairs ................................................. 808 KILLESTEYN, Mr Edward Victor, Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs ......................................................................................................... 808 McMAHON, Mr Vincent, First Assistant Secretary, Offshore Centre Management and Infrastructure Division, Department of Immigration and Multicultural and Indigenous Affairs........ 808 STORER, Mr Desmond, First Assistant Secretary, Parliamentary and Legal Division, Department of Immigration and Multicultural and Indigenous Affairs ................................................. 808 Tuesday, 16 April 2002 SENATE-Select CMI 807 Committee met at 9.33 a.m. CHAIR-I declare open this hearing of the Senate Select Committee on A Certain Maritime Incident and I call the committee to order. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate for the inquiry are available from the secretariat staff and copies have been placed near the entrance to this room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of public aspects of the proceedings. The hearing will last till around about 10.30 p.m. tonight and will resume at 8.30 a.m. tomorrow morning. Today's hearing will be suspended for lunch between approximately one o'clock and 2.30 p.m. and suspended for dinner between 6.30 p.m. and 8 p.m. I remind members that there will be a private meeting of the committee during the dinner suspension. The waiting room next door is for witnesses only and is a private area to which the press and members of the public have no access. We shall attempt to deal as expeditiously as possible with witnesses. I urge witnesses to be concise in their answers and senators to keep their questions tightly targeted. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give a part of their evidence in camera, they should make that request to me as chair, and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. However, counsel has no right to address the committee, nor will the committee address questions to counsel. CERTAIN MARITIME INCIDENT CMI 808 SENATE-Select Tuesday, 16 April 2002 [9.37 a.m.] FARMER, Mr William, Secretary, Department of Immigration and Multicultural and Indigenous Affairs ILLINGWORTH, Mr Robert Laurence Mark, Assistant Secretary, Onshore Protection, Department of Immigration and Multicultural and Indigenous Affairs KILLESTEYN, Mr Edward Victor, Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs McMAHON, Mr Vincent, First Assistant Secretary, Offshore Centre Management and Infrastructure Division, Department of Immigration and Multicultural and Indigenous Affairs STORER, Mr Desmond, First Assistant Secretary, Parliamentary and Legal Division, Department of Immigration and Multicultural and Indigenous Affairs CHAIR-I welcome the officers from the Department of Immigration and Multicultural and Indigenous Affairs. Mr Farmer, do you have an opening statement that you would like to make? Mr Farmer-No. CHAIR-Is that true of your colleagues as well? Mr Farmer-Yes. CHAIR-In that case, we will start questions straight away. Senator BARTLETT-I will not be asking any questions in relation to the certain maritime incident. My questions are in relation to the terms of reference for the Pacific solution. For starters, could you provide a range of statistical data, particularly any breakdown of the numbers of people that are on Nauru and Manus Island, the boats they came on and that sort of detail. I do not know if you received any preliminary warning from the committee about the sorts of things that I am looking for but, if you have that sort of data, that would be handy. Mr McMahon-I have data here which answers about four of the questions that you kindly provided ahead of time. They go to the total numbers on both islands, the composition of them in terms of nationalities, adults, males/females, boats and the number of unaccompanied minors. Can I suggest that I table this. I could also go through it as well, if you wanted me to. Senator BARTLETT-That would be good. I think it would be helpful to the committee as a whole if it were able to be tabled. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 809 CHAIR-Yes. The procedure we engage in is that, if you are tabling a document, we will receive it at this point, circulate it among the committee and then decide. There is not this nicety necessarily with your department but we decide, after we have seen the document, whether it should be released. It has been mainly for defence and security reasons that we have paused between receipt and public release, but at this stage we will continue to follow that practice so please hand it to the adviser. Senator BARTLETT-I want to go through the processes that are followed for the assess- ment of people's claims. As I understand it, there is a group of people that is being assessed by UNHCR and another group that is being assessed by departmental officers. Would you detail what differences there are-if any-and the processes that have been followed to date with all the claims? Mr Illingworth-The processes that are adopted on Nauru by the UNHCR and by the Australian government are essentially the same processes. The Australian processing arrangements have been modelled very closely on the arrangements that the UNHCR follows in Nauru and elsewhere in the world, and we have liaised closely with the UNHCR in refining those arrangements to ensure that is the case. Essentially, they involve an interview by a trained officer who actively explores all of the possible reasons that an individual may have for seeking refugee protection, discusses country information as relevant with that person and discloses any issues that might need a response from the individual-for example, if there are inconsistencies or issues about the country information which need to be explored further-and then the conclusion is reached. That is conveyed to the individual both orally and in writing. There are extensive counselling sessions then available to individuals to explain, if they are successful, what the implications of that refugee finding may be and, if they are found not to be refugees, what the implications of that are. All people who are found not to be refugees at that stage have an opportunity to seek a review. That is also conducted essentially face-to-face by a trained officer, a different officer from the officer who conducted the original assessment. Again, there is a process of discussion of claims, exploration of any grounds for refugee protection, disclosure of any potentially adverse inferences or information for comment and consideration of the responses, and a final decision is then reached. It is essentially the same process as is followed by the UNHCR. Senator BARTLETT-You say `trained' officers. In what way are they trained? What level are they? Are they people that normally do these sorts of assessments in Australia? Mr Illingworth-Yes. They are trained onshore protection case officers who have received additional training to operate the new processes offshore. They are officers who, because of their training, fully understand the refugees convention, the handbook, the domestic legislation in relation to interpretation of the convention, principles of natural justice and a range of issues that need to be taken into account when interviewing individuals who may have difficulty putting forward claims because of, for example, gender, culturally based reasons or historical reasons of suffering torture and trauma, fear of authority and those sorts of issues. Senator BARTLETT-When you say they received additional training, what would be the reason for that? What differences are there in assessing people offshore as opposed to the assessments that they have done here? CERTAIN MARITIME INCIDENT CMI 810 SENATE-Select Tuesday, 16 April 2002 Mr Illingworth-The additional training relates to the processes which we have followed. It is not a protection visa process so the administrative part of the onshore protection decision maker's work is a little different-there are different letters that are used and there is no appli- cation form. One of the significant differences in the offshore process is that there is a larger reliance on oral communication with individuals so people are interviewed perhaps more inten- sively and have a larger opportunity to put forward their claims at interview. Dealings with in- dividuals about their claims tend to be more face-to-face. Counselling, for example, is con- ducted face-to-face. Further explanation of reasons for decisions, where people need to seek that, is conducted face-to-face. So approaches are taken offshore which are different from the onshore process, which largely reflect that difference. There are some other technical differences in relation to the Migration Act, which does not apply offshore. The framework of decision making is an administrative decision, which then informs a minister's choices and decisions, as distinct from a decision within the construct of the Migration Act, which assesses criteria for grant of visa and then makes a decision about whether a visa should be granted or not. Senator BARTLETT-So officers assessing people onshore would still be assessing whether or not somebody met the criteria of a refugee, but then they would follow on with granting a protection visa; whereas, offshore, the visa part does not enter into it, at least not automatically. Is there any difference in the assessment in terms of what is taken into account- what counts and what does not count-in being assessed as meeting the criteria under the convention? Mr Illingworth-Offshore, Australian jurisprudence does not apply. Case officers are applying the handbook and the convention and would be applying them in the same way that the UNHCR applies the handbook and the convention. Senator BARTLETT-How do you know that they apply them in the same way? They might be referring to the same document but, if you say that jurisprudence does not count or whatever, how do you know? I am thinking of the example, just last week, of the High Court decision in relation to domestic violence, which may or may not be relevant to any of the claims offshore. Are you saying that that decision would not be relevant to the assessments offshore? Mr Illingworth-That jurisprudence is not a binding guide offshore, as it is onshore, but the principles of a particular social group and the concepts with which a lot of Australian jurisprudence deals are within the convention. The convention provides the source of the concepts so that a particular social group, for example, is specifically recognised in article 1(A) of the convention as a possible convention ground. Senator BARTLETT-A particular social group is in the convention but that component in particular has been a contentious one as evidenced by last week's High Court decision alone. What is defined as being a particular social group has obviously been a matter of debate as evidenced by this High Court decision, amongst others. Would last week's High Court decision, for example, be relevant to offshore assessments or not? Mr Illingworth-It is not a binding source for case officers. It does not have the force of precedent in terms of decision making offshore but, as I said before, the principles spring from CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 811 the convention. In most issues of jurisprudence, we are not looking at cases where domestic ju- risprudence has created a concept which has no source in the convention. It is providing one binding area onshore of guidance on interpretation for case officers, but the convention speaks for itself. Senator BARTLETT-The convention might speak for itself, but the interpretation of it is obviously fairly significant in terms of the people making the assessments. You say it follows the same procedure as the UNHCR, but are the same interpretive principles followed? Again using this `particular social group' as an example, how do you know that your officer's assessments in relation to that area would be the same as a UNHCR person's assessment? Mr Illingworth-There is a certain degree of consultation between the Australian officials and the UNHCR on issues about interpretation of the convention, both in a general sense in Australia and in the more focused area of refugee determination in the declared countries. Senator BARTLETT-What info is given to claimants on their rights in relation to the procedure et cetera? Are they given a standard set of information or advice? Mr Illingworth-They are given information about the process, which describes how we will go about assessing their refugee claims. They are also informed both in writing and orally of the availability of review rights if they are unsuccessful and of the availability of one-on-one counselling opportunities, if they desire them, to explore reasons for their decision in detail and to discuss in detail the options they might want to follow. Senator BARTLETT-They are not given any assistance in terms of putting together their claim? Mr Illingworth-That is not necessary with the system as it is constructed. In line with the approach taken by the UNHCR, the objective is to have a system which does not presume that an individual needs to have specialist support of any sort. It is an active investigation of an individual's circumstances to actively identify those people who need refugee protection, and it is for that reason that the processes adopted by the UNHCR globally-which we are matching-focus heavily on oral communication with individuals, face-to-face contact and an active exploration of claims. Senator BARTLETT-What if people ask for assistance-if they ask for a lawyer or some other assistance-in putting together the information they provide to you? Is there any mechanism for people to get access to any form of assistance? Mr Illingworth-That would be a matter for the centre managers and the relevant government. It is not an issue that falls within the framework of the refugee determination processes. Senator BARTLETT-Are you aware if they are able to get any if they ask? Mr Illingworth-I am not aware of arrangements. We certainly do not have arrangements in place to provide assistance within the framework of the refugee status determination process, nor does the UNHCR. CERTAIN MARITIME INCIDENT CMI 812 SENATE-Select Tuesday, 16 April 2002 Senator BARTLETT-What is the actual nature of the agreement put together between our government, PNG and Nauru in relation to that? We do the assessment but, as you have suggested, the claimants are not actually our responsibility; they are the responsibility of the relevant government whose territory they are on. Is that correct? Mr Killesteyn-The agreements provide for processing centres to be established on sites provided by the two governments. The expectation in both governments is that the processing- that is, the actual assessment determination-would be done by other parties. In the case of Nauru, Nauru requested the assistance of the UNHCR by way of third-person note on or about the time the first processing centre was established in Nauru. The UNHCR agreed to conduct that processing and that essentially relates to the people who were off the Tampa, as well as the other boat called the Aceng-that was the group delivered by the HMAS Manoora to Nauru. In relation to PNG, at that point the UNHCR had indicated that it would not be involved in the processing of any other groups, so subsequent groups are transferred to Nauru and all of the people transferred to the Manus facility in PNG have been processed by Australian officials. Senator BARTLETT-So we are doing the processing, but what is their actual status? There are people in Australia, for example, in detention who are unauthorised noncitizens; what is their status in these countries? Mr Killesteyn-In both cases, the governments have issued temporary entry permits which essentially provide for their legal entry into both those countries. The entry permits provide certain conditions which essentially means that the person has to be available for processing during the time that they are in the countries and that means that they are to remain within the sights of the processing centres that have been established. Senator BARTLETT-Are they actually in detention in a legal sense? Mr Killesteyn-In a legal sense, the entry permits provide for a legal status while they are in the country and ensure that they are available for processing and they remain within the address of the processing centre. In the context of the particular immigration legislation that is being used by Nauru and Papua New Guinea legally that is not defined formally as detention. Senator BARTLETT-Are the people who have already been assessed and have been found to meet the refugee criteria still required to remain within the centres? Mr Killesteyn-That is the expectation of both governments. However, we are conscious of the fact there will be a group of people who, pending their resettlement, will be classified as refugees, so we are undertaking arrangements and discussions with both governments to ensure that these people have some greater level of amenity and access to other facilities. For example, in Nauru there are excursions that people are taken on to the beach for swimming and so forth. That is the approach that is being taken. Senator BARTLETT-You mention excursions. Are they still supervised or accompanied? Mr Killesteyn-Supervised. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 813 Senator BARTLETT-In terms of the figures you have given us here which are a breakdown of the numbers of people and where they are from, I have just one question. You have got the status of some of them as OEPs. What does `OEPs' stand for? Mr Killesteyn-`Offshore entry persons' which is part of the new legislation that was passed by the government last year. Senator BARTLETT-So why are the SIEV 1, 2 and 3 and the Tampa people not offshore entry persons? Was it before the legislation was passed? Mr Killesteyn-The Tampa group, as well as the Aceng group that was rescued, never entered Australian territory as far as setting foot on the annexised territory Christmas Island. Whereas all of the other groups that have been transferred arrived at either Ashmore Reef or Christmas Island and then were transferred to the processing centres in Nauru and Manus. Senator BARTLETT-In terms of the legislation that was passed in the last few weeks-I can't remember the title of it now-that is relevant for the ones that were not offshore entry people. Is that correct? Mr Storer-Sorry, Senator? Senator BARTLETT-Is that relevant just for those who are not offshore entry people? Mr Storer-No, it covers both sets-the people who were taken to the centres on the Manoora and the people classified as offshore entry persons. Senator BARTLETT-What stage are things at? Is it correct that the UNHCR has done initial processing of all their people? Which ones has Australia processed to date? Mr Illingworth-The UNHCR has handed down a total of 244 decisions out of 525 persons that it is processing, so it has processed around half. The UNHCR and Australia are going through a process of re-interviewing many of the Afghan asylum seekers who, because they were originally spoken to late last year, need to be provided with an opportunity to provide any further information that might be relevant to considering their refugee claims, given the change in country circumstances in Afghanistan over that time. Senator BARTLETT-UNHCR has done 244 out of the 525; how many have we done out of the rest? Mr Illingworth-We have done 79 on Nauru and 116 on Manus. Senator BARTLETT-Are those 116 all from the SIEV4? Mr Illingworth-Yes. Senator BARTLETT-So there are still another 100 to go through their initial assessment just from the SIEV4? CERTAIN MARITIME INCIDENT CMI 814 SENATE-Select Tuesday, 16 April 2002 Mr Illingworth-Yes. Senator BARTLETT-Were the 79 on Nauru all from the SIEV2 and SIEV3 group? Mr Illingworth-That is correct. Senator BARTLETT-Altogether that is 195 from Australian assessment and 244 from UNHCR. They were all announced at the same time, as I understand it. Mr Illingworth-There was an announcement that decisions would be handed down over a period commencing earlier this month, so it was a coordinated hand-down arrangement with the UNHCR for Nauru, and hand-down arrangements for Australian decisions on Manus Island were linked in with that timing. Mr McMahon-All the decisions on Manus were handed down on 8 April, and the ones on Nauru were overwhelmingly handed down on 8 April and 9 April. Senator BARTLETT-Why was that sort of stockpiling done? I presume they were all interviewed separately and some of the decisions would have been reached somewhat earlier. They were just held off on being handed down. Mr McMahon-There were significant logistical issues because you simply do not hand down decisions, you have actually got to get staff into place to give them advice in respect of the decisions. There is some management issues of just handing down one or two decisions. There was a coordinated effort between UNHCR and Australia to try to get a significant group of decisions handed down at the same time. Senator BARTLETT-In terms of the 244 for UNHCR and the 79 and 116 from Australia, could you give me the numbers which were successful and unsuccessful, at least in their initial application? The Afghanis, as I understand it, are in effect still in their initial assessment phase. They are not actually appealing yet; they are still being assessed initially. Mr Illingworth-The Afghans fall into a number of categories. There was a small number of Afghans whose cases could be approved, essentially irrespective of the changes in that country's circumstances. Those cases received approval decisions. Then there is the group of Afghans whose cases were originally examined and assessed late last year and who are being reinterviewed to make sure that we have given them every opportunity to provide information relevant to the current country's circumstances. Then there is a later group of Afghan arrivals whose interviews have only recently been completed. They do not need to be reinterviewed because their initial interviews were conducted after the lie of the land in Afghanistan and the major changes of late 2001 became apparent to them. Senator BARTLETT-How many of the 244 have been successful-for want of a better word? Mr Illingworth-This is the Nauru UNHCR group? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 815 Senator BARTLETT-Yes. Mr Illingworth-There were 126 Iraqis approved by UNHCR. Seventy-five were found not to be refugees. Seven Afghans were found to be refugees. Fourteen people of other nationalities were found to be refugees. Then a group of 22 people of other nationalities were found not to be refugees, four of whom have left Nauru voluntarily to return home. Senator BARTLETT-So the other Afghanis that are being reinterviewed do not fall into that 244? Mr Illingworth-No. They are still in process. Senator BARTLETT-What about the Australian figures-the 79 and the 116? What is the breakdown there in terms of success or otherwise? Mr Illingworth-There were 60 favourable Iraqi decisions-60 were found to be refugees. Twelve were found not to be refugees; seven people of other nationalities were found not to be refugees. I would make two points. One of those decisions is that the actual hand-down is awaiting the person being ready to receive it. They are receiving some medical treatment at the moment. There is another group of Iraqis from that first tranche that we processed whose resolution awaits some country information which we have only just received. Senator BARTLETT-So that is the 79 on Nauru? Mr Illingworth-Yes. Senator BARTLETT-What about the Manus group? Mr Illingworth-There are 101 Iraqis found to be refugees; 12 found not to be refugees; three people of other nationalities found to be refugees. Again, there is a sizeable number of Iraqi cases from that first batch-that is, SIEV4, the Columba group. The resolution of their cases has been awaiting some critical information which we have now recently received. Senator BARTLETT-So of the 116, which are all from the SIEV4-which is the most famous one, I guess-104 of those have got a positive assessment so far? Mr Illingworth-That is correct-at this stage. Senator BARTLETT-That is a pretty high percentage. I guess the issue is what happens to them now. What is the legal status of all these people-the ones who have got the positive as- sessment? In terms of their legal status, I suppose, in their various countries, they are still on these temporary entry permits. Mr Killesteyn-That is correct, yes. Senator BARTLETT-And this assessment is irrelevant in that respect? CERTAIN MARITIME INCIDENT CMI 816 SENATE-Select Tuesday, 16 April 2002 Mr Killesteyn-That is correct. Senator BARTLETT-Is there any sort of time frame for this resettlement? As I understand it, with the UNHCR ones, the UNHCR is assisting in trying to find resettlement places around the globe. With the other ones that we have assessed, that is basically up to us to find places for them. Is that correct? Mr Killesteyn-This is the next step for us. It is important for us to secure resettlement places as quickly as possible and consistent with the government's strategy of ensuring that a preferred migration outcome for people who are secondary movers essentially does not end up being Australia-albeit the government has accepted that at some stage that may be the end result. We are now in a process of working with the UNHCR as well as undertaking our own bilateral discussions with various countries to secure those places, and we are doing that as quickly as possible. Senator BARTLETT-Is there any time frame or time limit for how long people can wait? Some people in Indonesia, for example, that go to UNHCR and get assessed have been there for years, as I understand it. Is there any time frame or time limit in relation to these people? Mr Killesteyn-There are no time limits. There are no arbitrary time limits on this process. On the one hand, you have to acknowledge that it is a difficult process but, on the other hand, it is important for us to secure the places as quickly as we can. We are now in a process of undertaking those sorts of discussions. The minister, who is also travelling at the moment, will be having discussions with various countries about securing places; the government has announced an ambassador for people-smuggling, who will also be involved in those discussions; we have our own discussions at officials level with various countries, taking up those sorts of issues; and of course we are working very closely with UNHCR, who have already undertaken preliminary discussions with various countries. I think there is reason to be confident that we will get a significant number of resettlement places. Senator BARTLETT-So, when we are approaching other governments, are we asking them to resettle these people? Mr Killesteyn-For those who are assessed as refugees, yes. Senator BARTLETT-I have seen comment that obviously Australia is going to have some of them coming here. Is that the case? Mr Killesteyn-That is a decision the government is yet to make. The government has indi- cated that where there are close family connections, for instance, it would be prepared to offer resettlement places. The important thing here is that we do not undo the strategy that the gov- ernment has put in place, by giving a migration outcome which was the original intention of many of these people; that is, to come to Australia. That only acts as a further incentive for peo- ple to come to Australia. So the strategy at this point is to secure places, as part of an interna- tional burden-sharing effort, in countries around the globe. Senator BARTLETT-But if they are resettled somewhere else they will get a migration outcome as well, will they not? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 817 Mr Killesteyn-Indeed, but their original intention was to settle in Australia. Senator BARTLETT-How do you know that? Mr Killesteyn-You just have to look at the particular profile of many of these people. They have been in places where they enjoyed protection prior to them seeking entry to Australia. In a sense, the protection outcome was already achieved and they were essentially taking secondary movements to secure a migration outcome in Australia. Senator BARTLETT-Where did they enjoy protection? Mr Killesteyn-Many have come from Iran or Pakistan, in the case of those that have fled Afghanistan. Many have lived in other countries such as Jordan prior to taking flight down for Australia-and indeed in Indonesia. Senator BARTLETT-Being in Iran counts as having protection? Mr Killesteyn-Essentially, the claims of many of these people are against regimes in Iraq and, prior to the events of September 11, the regime of the Taliban in Afghanistan. So they had already been enjoying that protection from persecution from those regimes. CHAIR-Isn't Iran an `axis of evil' country as far as President Bush is concerned? Mr Farmer-I do not think that has any relevance in the refugee determination context. CHAIR-No, but- Mr Farmer-There have been some millions of refugees seeking and having protection in Iran for some years. CHAIR-But you are confirming, Mr Farmer, that Iran is one of those countries that has been identified by the President of the United States in his address to Congress as a rogue state. Mr Farmer-That is not in my ken, Senator. It is not an immigration matter. CHAIR-You don't know? Mr Farmer-I have no official access to any information relating to that. CHAIR-But do you know or not? Mr Farmer-I have read the papers, Senator. CHAIR-So the answer is yes. CERTAIN MARITIME INCIDENT CMI 818 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-I do not know which papers you read. I do not know whether we are having just a semantic talk, but it is not something that I can give you any advice on based on my official position. CHAIR-Is everything you decide, Mr Farmer, based on your official position, or do you, as a sentient human being, read the papers and know what is going on in the world and relate your decisions as head of your department on what is going on in the world or just on what you officially receive across your desk? Mr Farmer-I do not believe everything I read in the newspapers, Senator. CHAIR-I think it is an extraordinarily evasive approach you have taken, Mr Farmer, but that is your decision and I note that. Mr Farmer-I would note also I am simply saying that a report of a discussion about something unrelated to refugee and immigration matters is just that: it is unrelated to refugee and immigration matters. We have had no reason to ponder on the basis of advice from the UNHCR or anyone else whether Iran still offers effective protection to refugees as a result of those reported statements. CHAIR-I would have thought it is relevant to the considerations of yourself as head of the department and for departmental considerations as to whether or not Iran has been identified as a rogue state by our allies under the ANZUS treaty to which we are committed and which we have invoked. I would have thought that is a relevant consideration. Mr Farmer-I do not believe that the UNHCR-and I am ready to be corrected by my colleagues if I am wrong-which has a significant presence in Iran, has advised us of any change in its view about the protection available to refugees in Iran as a result of any statements of the sort you are referring to. CHAIR-I will note that interjection. It is not an immigration matter. But the purpose of the President's speech-and bear in mind that our Prime Minister has invoked the ANZUS treaty- was to indicate which countries as far as our ally is concerned are rogue countries which may harbour terrorists, which the whole global coalition against terrorism is directed at suppressing. That part is true. That is a relevant consideration, surely, when assessing whether or not we might become militarily involved in any action to suppress terrorism in those countries-which does go to whether or not there are safe havens or otherwise for refugees. There is a connection, it seems to me. Mr Farmer-I hear your opinion, Senator. That is not something that anyone in this depart- ment has turned their mind to. CHAIR-When would you turn your mind to it? If we became engaged? Mr Farmer-Senator, that is a highly hypothetical question dealing with a matter beyond my competence, and I am not going to answer that. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 819 Mr Killesteyn-Senator, could I offer a way through here? The assessments of a person's claims against the convention are case-by-case assessments. They are based upon the individual circumstances of each individual. In the case of the people that are in the offshore processing centres, we have undertaken a process to examine their claims of persecution against whatever regime they would claim persecution. Invariably-in fact universally, as I understand it, and Mr Illingworth can correct me here-all of the claims are for protection against the regimes in Iraq or Afghanistan at the time. There were no claims for persecution in relation to anyone that resided in Iran or any other country prior to coming to Australia. That is what we have been pursuing. So the issue that you have raised is not necessarily germane to the individual assessment of a person's refugee claims. CHAIR-I am intruding on Senator Bartlett's time, and I am loath to do that but, since you make that explanation-and, let me say, I understand that is the position-I would have also thought that there is some relevance to the fact that, if they have fled their original country and now have temporary refuge in countries like Iran, North Korea, Iraq or Afghanistan that are not their home country and which are designated as countries that harbour international terrorists- against which countries there is a global coalition of military action to suppress terrorism-the security of their temporary or transient position is also a consideration. But, apparently, the department knows nothing of this and gives it no consideration. This is the `I know nothing' defence; I understand the defence. If that is what the department's evidence to the inquiry is and you want to stand by that, fine-that is your position. Mr Farmer-We have had no advice from the UNHCR to suggest that it has concerns about the protection being offered to people in Iran as a result of the comments that you have been referring to. CHAIR-Is that the only source of advice you get? Have you had any advice from PM&C, for example, about the implications of the ANZUS Treaty, with respect to any of the countries-I do not want you to single out any of them-that we might be militarily involved with? Mr Farmer-We have not been involved in any discussion of that sort, Senator. CHAIR-The `I know nothing' defence. Thank you, Mr Farmer. Mr Farmer-Senator, I am sorry- Senator BRANDIS-That is not fair to the witness, Mr Chairman. CHAIR-It is very true to the witness. Senator BRANDIS-It is very unfair to the witness. CHAIR-It is very true to the witness. Senator BRANDIS-May I ask a question, Mr Chairman? CERTAIN MARITIME INCIDENT CMI 820 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-You asked a factual question- Senator BRANDIS-May I ask a question to the witness? Mr Farmer, would you care to elaborate on why it is that you consider that not a question you can properly answer? Mr Farmer-Yes, I would, thank you. CHAIR-I thought he had been elaborating on that, actually, Senator Brandis. Mr Farmer-No, Senator; you made a comment and I would like to respond to that. This is not the department for knowing everything that goes on in the Australian government. We are here to help the committee to the extent that we can and, insofar as there are issues relating to the competence of the Department of Immigration and Multicultural and Indigenous Affairs, I assure you that we will do our utmost to do that. But if you lead me down paths that go right away from the competence of this department then I am sorry but there are limits to how far we can help-regardless of our will to be as helpful as we can. Senator FAULKNER-Mr Farmer, could you direct me to the department that is the appropriate one for knowing everything that is going on in the Australian government? Mr Farmer-Of course, there is not such a department. CHAIR-There is the PM&C; that would be the closest department to that. Mr Farmer-That is right. CHAIR-That is right. But the reason why I made the retort I did-and I do not need to explain myself but let me go to this extent, since one of my colleagues has intervened in this discussion- Senator FERGUSON-You have intervened in Senator Bartlett's questions. CHAIR-Yes, I know, and I have apologised to him doing so. Senator FERGUSON-But you are still going. CHAIR-That is right, I am still going and I will go until I complete this, thank you very much. It seems to me entirely relevant, when you are considering whether people have any se- curity over their life or wellbeing-which is an element of our assessment about their status as a refugee-to have a contextual understanding about not just their country of origin but also their circumstances at large. If they are in a country which, I submit to you, you know is one of those countries that is nominated as an `axis of evil' country and which you know we may-hopefully may not, but may; it is a live question-become militarily involved with, then I would have thought their security in that country is a relevant consideration to your department. Now the fact that you say that it is not and that you are not aware of those wider issues simply says to me that you choose not to take those matters into consideration. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 821 Senator FERGUSON-Mr Chair, is this a question or a lecture? CHAIR-No, I was asked to respond- Senator FERGUSON-It sounds very much like a lecture. CHAIR-and I am doing the witness the courtesy of responding to his proposition. Senator FERGUSON-There is today's headline for you. CHAIR-If we can now move on, having put my position to you, Mr Farmer- Senator FERGUSON-Your lecture. CHAIR-to Senator Bartlett. Senator BARTLETT-Thank you. I have forgotten where I was at now. CHAIR-My apologies. Senator BARTLETT-That is okay. You were talking about migration outcomes and protection. In terms of this definition of protection, as I understand it, a number of people in Iran, who have been there for some time, are at risk of now being forced out of Iran and back to other areas. Is that the case? Mr Killesteyn-Senator, what I was explaining was in the context of the question about time frames. I was simply indicating that we are not working to an arbitrary time frame to secure resettlement of people; we are working to secure that resettlement as quickly as possible. We have a range of processes both at government and official levels to do that, as well as working through the UNHCR, and we will continue to pursue that until all people are resettled. Senator BARTLETT-You were saying that a large proportion of these people had protection previously; they were not in a position where they were able to have permanent protection. Mr Killesteyn-No. The obligation of the Australian government is not to refoule anyone who enters our territories. That is the obligation; it is no more than that. We have undertaken a process with offshore processing as part of a broad government strategy to give people an op- portunity to present their claims to either Australian officials or UNHCR officials. Once those claims have been assessed and their status determined then we are assisting with the resettle- ment of those people. Some may come to Australia-that is a decision that the government is yet to make-others will be resettled in countries that are offering that resettlement-permanent residence, if you like. That is the process we are going through. Senator BARTLETT-We heard in previous evidence, last week I think it was, from Navy officers that it is not uncommon, indeed it is fairly regular, for people on the boats when they are boarded or approached by Navy to say that they are refugees; that they are wanting CERTAIN MARITIME INCIDENT CMI 822 SENATE-Select Tuesday, 16 April 2002 protection or safety. At least three of the boats were turned back to Indonesia. I do not know if any of those actually entered Australian waters but they certainly got pretty close. I know at least some of them have gone into Australian territorial waters. You have just said that we have an obligation for people that enter our territory that we do not refoule them, yet we have had three boats, some of which may have entered our territorial waters and have contained people saying, `We are refugees', that we have sent back. How does that fit into our obligations not to refoule? Mr Illingworth-Senator, the principle of non-refoulement or non-return has been very carefully crafted by the drafters of the convention. It does not mean we must accept; it does not mean that an asylum seeker has a right to demand entry to a country without authority; it does not mean that an asylum seeker has a right to demand that a particular country process their claims; nor does it mean that a particular asylum seeker has a right to ask a country to protect it and choose the country in which the asylum seeker or refugee will obtain protection. Those are all intentional outcomes of the drafting of the convention. The mechanism that was put in place through legislation last year under which the handling of the boat arrivals has taken place is fully consistent with our obligations of non-return. Nobody has been returned-no refugee has been returned to a country of persecution-as a result of those policies. Our obligation is to ensure that those people who enter our territories, if they are refugees, do not get returned. The mechanisms ensure that people are assessed. If they are refugees, appropriate protection is provided, and if they are not refugees, obviously they can be returned. Senator BARTLETT-But we have had people who have entered our territory who may or may not have been refugees-we do not know because we have not assessed them, but they have claimed they are-and we have sent them back. We have no way of knowing what has happened to them subsequently. Mr Farmer-Senator, I think there is an important distinction to be made and that is non- refoulement. That means they should not be returned to the country where they believe they have a risk of persecution. It does not mean non-return to another country-for example, Indonesia. Senator BARTLETT-But you do not know what has happened to them once they have gone back to Indonesia. If they are sent back, as they may be, we have no control over that and surely then we would bear some responsibility for them having been returned to their country of origin. Mr Farmer-There are arrangements in Indonesia involving the UNHCR, the international organisation for migration, and Australia, which essentially provide the assessment of refugee claims by people in Indonesia. Senator BARTLETT-I think three boats-maybe more, but certainly at least three-have been returned to Indonesia. Is there an arrangement for them to be met at the Indonesian end by the UNHCR people or other people or is it just for the people on the boats to figure that out or find their way? Mr Farmer-Senator, I am not aware of any particular communications with the Indonesian authorities about reception arrangements or anything like that for these particular boats. I think CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 823 that would be a matter handled by either the Navy or through diplomatic channels. I cannot help you on the specifics of what happens there. I do not know whether any of my colleagues can. Mr Killesteyn-The Indonesian authorities were advised that four boats were returned. They were all advised about the return of the boats. What then happened in terms of reception arrangements is really a matter for the Indonesian government but we certainly did take steps to let them know. Mr Farmer's point about what is called the `regional cooperation model' is an important one to emphasise. This was put in place some 18 months or two years ago and it gives an opportunity for people who are in Indonesia to present their claims for persecution and have them assessed by the UNHCR, and then for resettlement to take place in cooperation with the UNHCR and ION. That was specifically designed to give these people, who were enjoying protection in Indonesia at the time, an opportunity have their claims assessed and for resettlement processes to start. Senator BARTLETT-Let me just clarify one point. Mr Illingworth, you mentioned that the refugee convention did not provide for people to be able to enter a country illegally to seek asylum. My understanding of it is that the manner in which people enter a country is irrelevant in terms of their claim for protection. Mr Illingworth-That is correct. Whether a person is a refugee or not is not flavoured by their mode of entry. That is certainly the case in the processes that Australia follows. But that is a separate issue from whether a nation has the capacity to control its borders or whether it has somehow ceded some form of sovereign power to individuals to pick and choose a country and enter it without a visa. The refugee convention is very careful in its words to preserve the capacity of states to control their borders; very careful to withhold from individuals-asylum seekers-a right which is often presented in the media and elsewhere as in existence, but which does not exist, and that is the right to turn up to a country and say, `Let me in. I demand entry. I have a right to enter. I have no visa.' There is no such right. Senator BARTLETT-But people have a right to seek protection from any country. I understand your point that they are not able to pick and choose, but they do have a right to enter a country that is a signatory to the convention to seek protection. Mr Illingworth-No. Senator BARTLETT-They do not have a right to enter a country? Mr Illingworth-They do not have a right by virtue of being a refugee to enter a country without authority. ACTING CHAIR (Senator Brandis)-Mr Illingworth, we should be careful with our terminology. As we know, the fact that a person claims to be a refugee does not make them a refugee; at its highest these people are claimants to a status, their entitlement to which is as yet undetermined. Do you agree? Mr Illingworth-Yes, although there are two ways in which refugee status is looked at. In one way it is a determinative process undertaken by states which then confers a status. Another way in which it is looked at is that refugee determination processes are declaratory, and so the CERTAIN MARITIME INCIDENT CMI 824 SENATE-Select Tuesday, 16 April 2002 general practice of the international community is to assume that an asylum seeker should be treated with some of the basic protection, as if they were a refugee, because one does not know until one then makes a determination, and that will enable the consequent action to be carried out. For example, in the case of people who arrive and are taken to declared countries for processing, even though they are only claimants they are protected, in a sense, from refoulement, from return, until such time as we can work out who is a refugee and who may not be a refugee. Senator BARTLETT-Of the people that are on Nauru and Manus Island at the moment that have been assessed positively-I think there are about 311 if I add up all your figures correctly-the government has said it will give priority to those with immediate family connections here. Do you know how many of those people that applies to? Mr Illingworth-We have some information which we are in the process of clarifying and validating with the individuals concerned. The issue of family linkages with Australia has been somewhat difficult to pin down because sometimes people use different names or they provide names of claimed relatives in Australia which are different to the names which we may know them by. In other circumstances they may choose, for whatever reason, to either claim that relatives exist that do not or, vice versa, to not tell us about relatives that might exist. We could provide some more detailed information on the family linkages when we have finished a process which we are going through now with the individuals concerned to validate the information. Senator BARTLETT-That would be handy when you could; it is not super urgent. Are there any amongst those that have been rejected who have immediate family here such as spouses or parents? Mr Illingworth-That is the case to my understanding. Senator BARTLETT-That is a yes? Mr Illingworth-To my understanding that is the case-there are people on Nauru and Ma- nus who have not been successful who have claimed to have relatives in Australia. Senator BARTLETT-Could you let us know how many of those there are as well? I assume that in the assessment procedure having a parent or a spouse in Australia on a protection visa is irrelevant in terms of the determination. Mr Illingworth-The mere fact that a person is in Australia on a protection visa alone would not be a significant factor but it may serve to substantiate claims made by the individual for protection. Senator BARTLETT-Assuming that some of these people will end up in Australia-I appreciate you cannot say how many, but I think it is reasonable to assume that some of them will end up here, given statements by the government about taking our fair share and giving priority to families-what visa would they be on? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 825 Mr Illingworth-There are two visas which would be the most relevant. There is the 447 visa, which is a three-year temporary visa which carries the same entitlements as a temporary protection visa onshore carries. That is the visa that should be available to people who are offshore entry persons-that is, people who have landed on an excised offshore place and who are subsequently found to be in need of protection. The other visa, which is a five-year temporary visa, is the subclass 451 visa, and that is available to people who have not landed on an excised offshore place. Senator BARTLETT-So both of those visas are permanent temporary ones, for want of a better phrase. Is that right? At the end of that period- Mr Illingworth-No. People who have arrived on an excised offshore place unlawfully and who are subsequently found to be in need of protection get a three-year visa which carries the same entitlements as a temporary protection visa. They subsequently would have access, if they need protection continuously for essentially renewals, to a temporary protection visa for three- year periods following that unless the minister decides otherwise. People who have not reached Australian soil in an excised offshore place but who have bypassed or abandoned protection en route to Australia would have access to the five-year visa and after 4½ years would have access to a permanent residence protection visa if they needed protection at that time. Senator BARTLETT-In terms of all those who have been assessed on Manus, the 104 who have been successful to date would, subject to the minister deciding otherwise, not at any stage be eligible for permanent residence? Mr Illingworth-The group processed by Australia on Manus would be eligible only for the temporary visa. Senator BARTLETT-Okay. How does that match with what we are asking other countries to do in terms of resettling people? Those people are not being settled here, they do not get access to settlement assistance and they are not able to settle, in effect, because they are going to be on temporary visas for the rest of their lives whilst they are in Australia. How does that match with our request for other countries to settle people? Mr Illingworth-It is essentially for other countries to determine the package of entitlements or benefits that are provided to individuals that they take under their own resettlement pro- grams. That would include considerations by those countries as to the appropriate lawful status to provide to those individuals. Senator BARTLETT-But we are not settling these people, or any we bring here. Mr Illingworth-The issue of resettlement is one for each individual country to determine how they will do that. Senator BARTLETT-I appreciate that. Mr Illingworth-The clear principle in terms of resettlement and local integration is that countries do so as and when they feel that they are capable of doing so or wish to do so. So there is no obligation on other countries to provide permanent residence, just as there is no CERTAIN MARITIME INCIDENT CMI 826 SENATE-Select Tuesday, 16 April 2002 obligation on Australia to provide permanent residence. Notwithstanding that, as I just outlined, significant numbers of the people who are in the offshore processing locations, if they were to come to Australia, would have access to a pathway to permanent residence. Senator BARTLETT-What about those people who have family here? I presume many of those people would also be on TPVs. I think the stereotype is that the husband or the father arrived here earlier and got a TPV and then the others had to come here subsequently. I presume there are some people in that category. When the male's TPV runs out-and some of them are starting to come up for renewal now-if their spouse or children have arrived in the country subsequently, are they able to fold them all into a single renewal application? Mr Illingworth-This is in relation to onshore processing now? Senator BARTLETT-Yes. Some of these people who I am assuming will end up here who have a partner here already. When their visa will run out earlier, are they able to fold the whole family into that renewal visa request? Mr Illingworth-The mechanism that prevents the subsequently arriving family from, for example, accessing a permanent visa for a particular period of time or perhaps indefinitely is not affected by whether or not there are attempts by another family member to include them in an application they might have running. For example, if the individual arrives on a five-year visa- which would provide them with an opportunity to access permanent protection after 4½ years- the fact that they might have a spouse in Australia who lodges a further application and seeks to join this individual to that application will make no difference to that bar. Senator BARTLETT-But are they able to join them so that- Mr Illingworth-I am not sure that they can do that. I can provide you definitive advice. Senator BARTLETT-Could you clarify that. I guess there is a scenario that I can see-and I do not know how many people would be affected by it. There may be a husband or a father whose TPV is going to run out in six months or a year's time and, in the meantime, the wife and kids arrive on a three- or five-year visa that will not run out until 2005 or 2007, yet the husband or father will need to apply for either a permanent protection visa or an ongoing TPV next year, which may be rejected because of a change in circumstance. That process will continue inde- pendently of the rest of the family. So they will be out of sync in terms of their visas, I guess. That is what is going to happen. Mr Illingworth-That is correct. The issue of joining applications really does not affect the underlying principle in the Migration Act structure, which has individuals as individual applicants. So it is possible for people to arrive together and apply together and progress together, and there can be a range of different scenarios. One person arrives and gets processed and maybe gets a refusal. That does not prevent a family member who subsequently arrives from applying and making claims in their own right and seeking a different outcome. Similarly, if that first person is approved, it does not necessarily mean that the subsequently arriving family are going to be aligned in terms of their visa term with that first person. Senator BARTLETT-Isn't family reunification one of the aims in the convention? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 827 Mr Illingworth-The issues of family unity are identified in statements made in relation to the convention. The convention drafters were very careful to prevent the inclusion in the convention of issues of family reunion particularly, which they were concerned could then be used by people to argue, once again, that the Refugee Convention is a legitimising agent for choosing a country of preferred residence. There is a common theme through the convention, which is evident from the drafters notes when the actual text was being refined, of concern not to create a vehicle for secondary movement, as we now call it. Senator BARTLETT-The assessment that has occurred to date has taken six months or more-I think it was September when the first people arrived in Nauru. That seems like a reasonably long period of time to me to make an initial assessment. Is there any likelihood of that being sped up? As I understand it, the initial primary decisions are normally done a lot quicker than that. Mr Illingworth-There were a range of activities that had to be undertaken before we could get to the protection interviewing stage not least, in many cases, the conduct of detailed interviews to identify basic bio-data of the individuals-who they are, where they are from, what their claimed family connections are-to enable our preparation for deploying our interview teams. There were some one-off issues in creating the process and getting the teams ready to deploy which might have added a little time to the start-up of our processing but that was a transitory issue and is not a long-term problem. Processing offshore now is proceeding very smoothly and apart from some other one-off factors, like the need to reinterview a large number of Afghan asylum seekers, we would have had far more decisions ready to hand down at this stage. Senator BARTLETT-What is the time frame of the agreements with the two countries? I read from time to time that the Nauru one I think-I cannot remember which one-was originally just until May. What is the length of time in relation to those? Mr Killesteyn-There are two agreements. They are slightly different but they also have some common elements to them. The reference to a time frame with Nauru is probably some- thing that you recollect from earlier public information. The first agreement with Nauru was actually for a six-month period; that was the original agreement negotiated between then Min- ister Reith and President Harris. Subsequent to that there was a renegotiation of that first ad- ministrative agreement to a new MOU-memorandum of understanding-and essentially that provides for no particular termination clause or time frame for the existence of the processing centre in Nauru. As long as both parties are satisfied with the arrangements then those process- ing centres can continue. In PNG it is slightly different as that agreement does have a fixed time frame. Initially that was also six months but the PNG government agreed to an extension of that and the agreement formally expires in October this year. Senator BARTLETT-Were the payments made to the Nauru and PNG governments out of your department's funding? Mr Killesteyn-When you refer to payments, are you referring to aid payments or are you referring to other types of payments, Senator? CERTAIN MARITIME INCIDENT CMI 828 SENATE-Select Tuesday, 16 April 2002 Senator BARTLETT-I think there are aid payments and the payments relating to outstanding hospital costs and those sorts of things. Mr Killesteyn-Again, the Nauru agreement was based on additional aid moneys. I cannot really provide you with a great deal of detail on that because they are matters administered by the departments for Foreign Affairs and Trade and AusAID. To the extent that it is aid money, they are not paid through our department. We are essentially responsible for paying direct costs associated with services to run the processing centres. There is no aid condition, if you like, with Papua New Guinea-it is not part of the agreement that there is any aid moneys. There is a trust fund established under the MOU with Papua New Guinea and essentially the purpose of that trust fund is to reimburse the Papua New Guinea government for any costs that they may incur as a consequence of having the processing centre in their territory. Senator BARTLETT-Is it also the case that we provide funding to Indonesia to assist with processing of people there, or is that direct to UNHCR? Mr Farmer-We do provide funding to a number of bodies in Indonesia. We provide money to UNHCR and to IOM, and in some circumstances that extends to arrangements with the Indonesian authorities. For example, I think IOM, in some cases, has had arrangements with the Indonesian authorities that cover accommodation for people who have been intercepted. Senator BARTLETT-Does that come out of the DIMIA budget? Mr Farmer-Yes. Senator BARTLETT-Are you able to give amounts for that? Mr Farmer-I am sure we could; we could take that on notice. Senator BARTLETT-That would be good. In the breakdown that you provided to the Senate Legal and Constitutional Committee in additional estimates, of the $159 million for offshore facilities, $36.6 million was for Christmas Island. Does that include money for anything to do with the new detention centre that is proposed there? Mr Farmer-No, it does not. That $36-odd million mainly relates to the processing costs, the ACM costs, the service detention costs. Senator BARTLETT-There is $74 million for the IOM for management of the two Nauru and Manus Island facilities. Mr McMahon-It was $72 million for Nauru and $42 million for Manus, so that was $114 million in total. The great bulk of that goes to IOM, but it also includes our own costs and the costs of some other agencies which are, in effect, contracted to us. For example, APS provides gardening services, particularly on Nauru, and they charge us for those sorts of costs. Our own processing costs, for example, are included in that, et cetera. But the bulk of it actually goes towards IOM. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 829 Senator BARTLETT-There is $20 million between Nauru and Manus that is for the establishment provision of infrastructure. Is it anticipated that there will be ongoing use for these facilities by Australia? Mr McMahon-The infrastructure is now largely in place. We are still doing some work on both of the centres, but its continued availability depends largely on the host governments and the continued willingness of IOM to run the centres, et cetera. So, yes, it is a continuing facility at our disposal, subject to those conditions. Senator BARTLETT-Where is the proposed Christmas Island facility up to? That comes out of your budget as well, does it not? Mr McMahon-Yes, it has been fully funded from our budget. In respect of the immigration reception and processing centre itself, obviously there are a range of other infrastructural issues that have been dealt with, for example, the second port, roads, sewerage, electricity, et cetera. That has been provided for in the budget of the Department of Regional Services, Territories and Local Government. Senator BARTLETT-I have been aware of some commentary that the site that is proposed is an environmentally sensitive one. Do you know whether environmental impact assessments have been made? Mr McMahon-I think you have got to take this from the top up. The first thing is that there is an environmental management plan which now governs all environmental matters within the national parks and, more broadly, on the island. We will be conforming with that. We have an exemption in respect of the mine lease site itself, and it is an ex-mine site. This undertaking has been given by both the minister for immigration and the minister for territories to conform with environmental requirements. Essentially, both organisations have to develop environmental plans, and that is now in the process of being done. It is unlikely, I think-but we will take advice on this-that the site is particularly environmentally sensitive, because it had been fully mined out and it is quite `landscaped', if you like, from the point of view of having pinnacles throughout it. Senator BARTLETT-But there has not been an environmental impact assessment done in relation to the construction? Mr McMahon-Not at this stage, no. Senator BARTLETT-Is there going to be? Mr McMahon-Yes. Senator BARTLETT-Finally, going back to the assessment process that is followed on Nauru and PNG, the assessment criteria that is followed is not linked to our criteria under the Migration Act, is it? CERTAIN MARITIME INCIDENT CMI 830 SENATE-Select Tuesday, 16 April 2002 Mr Illingworth-The interpretation of the refugees convention is clarified by the Migration Act, but the process is not a protection visa assessment process; it is a refugee determination process. Senator BARTLETT-Is that determination based on what is in our act? Mr Illingworth-That is correct, the clarification and guidance as to the correct interpretation of the convention, which is in the Migration Act, is taken into account by decision makers representing the Australian government wherever they make their decisions, whether it is onshore or whether it is in one of the declared countries. Senator BARTLETT-So, in effect, a person would get the same outcome-not in terms of a visa but in terms of a determination-whether they were onshore or offshore? Mr Illingworth-In terms of the guidance provided by the Migration Act, that is correct. Domestic jurisprudence does not have effect in the offshore decision-making process. Senator BARTLETT-The assessment is conducted by a departmental officer. Is the appeal, when we get to that stage-and I guess we are just moving into that phase for some-conducted by a different departmental officer? Mr Illingworth-By a different and more senior departmental officer. Senator BARTLETT-Is that a fresh assessment? Mr Illingworth-It is essentially a fresh assessment. The individual is asked to provide new information and they are re-interviewed. From our perspective, anything they want to say, they can say; any information they want to put, they can put, and a fresh decision-making process is gone through. Senator BARTLETT-How many officers all told have you got making assessments? Mr Illingworth-On the island? Senator BARTLETT-Yes. Mr Illingworth-We have two officers at the moment who are conducting re-interviews of Afghans. We are yet to deploy officers to conduct reviews, but that will be happening in the next few days. Senator BARTLETT-How many have been involved in the determinations to date? Has that just been two or have there been more than that? Mr Illingworth-No, essentially, we use as many as we need. The number of decision makers is not a constraint-we have more than enough. The numbers range from small numbers conducting small focused work to deployments of five, six or more officers. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 831 Senator BARTLETT-Could you let me know-on notice if need be-how many, all told, have been involved in assessments? Are people continuously assigned or are they sent there at some stage, then brought back and others are sent later? Mr Illingworth-Essentially, we deploy a team and that team does a chunk of interviewing work and takes on responsibility for a set number of cases. They will then come back to Australia and be processing those cases, and another team will go in. So there are a large number of officers, but not all of them will be working exclusively on boat cases. Some of them will be working for longer periods and more intensively than others; it depends on a range of operational factors. Essentially, we have the entire onshore protection work force available to us to draw from, and the final decisions about who goes are dictated by their availability. Senator BARTLETT-Those officers make the decision themselves? They do not refer it back to anybody else? Mr Illingworth-There are the usual internal quality assurance mechanisms which are in place for refugee determination work. At the first level, there is workshopping and discussion amongst case officers on various teams about issues which might run across a number of cases. There is guidance and information provided by team leaders. There is a quality assurance responsibility of the local state manager for the case officers and, indeed, there is also a responsibility by the program management in Canberra to ensure that decisions are robust and reliable. CHAIR-Thank you. The committee will have a short break. Senator Brandis will begin questions when the committee resumes. Proceedings suspended from 11.07 a.m. to 11.22 a.m. CHAIR-The committee will come to order. Senator BRANDIS-Mr Farmer, I will direct my questions to you but it may be that other officers are the best people to answer particular questions, and there may be some questions you wish to take on notice. Among other things, I am going to ask about some figures. If you are able, please offer me an estimate, even if you cannot give me the express figure, and take it on notice to provide the express figure subsequently. Mr Farmer, how many refugees did Australia take in 2001 from all countries? Mr Illingworth-In the last financial year there were somewhat over 13,000; I do not have the precise figure with me, but I can undertake to provide it to you. Senator BRANDIS-So in the last accounting period, which is the 2000-01 financial year, it was approximately 13,000? Mr Illingworth-It was somewhat over 13,000. Senator BRANDIS-Is the figure for the current period approximately the same, or is the rate of refugee intake approximately the same? CERTAIN MARITIME INCIDENT CMI 832 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-Perhaps I can help by way of background comment. The government several years ago agreed that in implementing the refugee and humanitarian program we could retain flexibility in a variety of ways designed to make sure that no refugee places were lost. There had been a phenomenon whereby, for example, some people were given visas but did not actually use the visas, and those places were lost. We now have the flexibility to make sure that if fewer than the current program, that is 12,000, of refugee or humanitarian entrants arrive in a year then the shortfall is added to the program for the next year. Senator BRANDIS-I understand. Mr Farmer-It gives us flexibility in the administration of the program, which can be helpful because occasionally it can be difficult either getting visas to people or getting visaed people to Australia. It is true to say that our role, on average, has been 12,000, but it goes up and down in any one year. Senator BRANDIS-I understand, and that is because, as you have explained, not all 12,000 places are filled, and that spare capacity is carried forward as an adjusted quota for the following year. Mr Farmer-Yes. Senator BARTLETT-That is not just refugees in that 12,000, is it? It also includes others- Mr Farmer-Refugees and humanitarian entrants. Senator BRANDIS-Perhaps we had better chase that point. What is the distinction between refugees and humanitarian entrants? Mr Illingworth-A person who is brought in as a refugee is a person who meets the convention definition of a refugee. A person resettled as a refugee is a person who meets that definition and also is assessed as being in need of resettlement, usually by referral from the UNHCR. Senator BRANDIS-As I understand it, the basic criterion for refugee status is a justified fear of persecution in the country from which the person is seeking asylum. Is that so? Mr Illingworth-That is correct. The basic criteria for determining whether a person is a refugee is whether they are outside the country of nationality and have a well-founded fear for a convention ground of return to that country-a well-founded fear of persecution. Senator BRANDIS-Persecution in itself is a defined term? Mr Illingworth-Persecution in itself is clearly defined in a number of ways. Senator BRANDIS-I am sorry, Mr Illingworth; I interrupted you. Please go on. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 833 Mr Illingworth-The other element of our offshore humanitarian intake is a special humanitarian program, and that is for people who are in refugee-like situations. For example, they may be suffering or in fear of persecution or significant harm, but not for a convention ground. In respect of those people, there is also an assessment that they are in need of resettlement. Senator BRANDIS-In the last accounting period-that is, 2000-01-within the 12,000 or whatever the adjusted intake quota was, what was the break-up between persons received as refugees and persons received under the special humanitarian program? Mr Farmer-We can get those precise figures for you. I just make a general statement- Senator BRANDIS-I am sorry; before you go on, just roughly how did it break up? Can you tell me? Mr Farmer-I was going to make a general statement that, roughly, the 12,000 would be broken down into 4,000 refugee places delivered offshore. The balance would be a mixture of humanitarian places delivered offshore and the onshore refugee places-that is, people determined to be refugees having applied in Australia. Senator BARTLETT-Could I have one more clarification? Does that include people on temporary visas? Are they counted in that 12,000? Mr Farmer-Yes. Senator BRANDIS-I obviously do not expect you to have these figures, but I would be interested to know-and, for ease of reference, let us restrict ourselves to the most recent accounting period, the 2000-01 financial year-of the aggregate intake under what we generically call the refugee program, how many of those people were of Afghan, Iraqi, Iranian, Palestinian, Syrian and Turkish nationality? Mr Farmer-We will get that for you. Senator FERGUSON-For my personal information, as much as anything, could you give us a breakdown of all the breakdowns in nationality and not just those? I would like to know the other nat, as well. Mr Farmer-Yes. Senator BRANDIS-Mr Farmer, I want to look at the offshore refugee applicants and the offshore humanitarian program applicants. You gave me a figure of about 4,000 for the offshore refugees; you did not give me a figure for the offshore humanitarian program applicants. Can you offer a rough figure for that? Mr Farmer-Senator, that will vary from year to year because of the variation in the number of onshore refugee places, and that will either push down or up the number of other humanitarian places available. CERTAIN MARITIME INCIDENT CMI 834 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-All right. Perhaps you can give me those figures for the previous three years. Mr Farmer-Yes, we can easily do that, Senator. Senator BRANDIS-Mr Storer, did you want to say something? Mr Storer-To clarify, do you want the figures for people applying under our offshore resettlement programs over the last couple of years? Senator BRANDIS-Applying successfully. Mr Storer-Applying successfully, or all those who are applicants, because there are quite large numbers in the pipeline? Senator BRANDIS-I am going to come to that. In the last annualised accounting period, which predates the government's current border protection policy, was it the case that, if a vessel containing unauthorised arrivals landed on Australian shores, the number of those asylum seekers who were accepted into Australia for processing was deducted from that year's refugee intake quota? Mr Farmer-From the overall refugee intake quota? Senator BRANDIS-Yes. Mr Farmer-They were included in it. Senator BRANDIS-So if a person arrived in Australia on a SIEV-they were not called SIEVs in those days, but you know what I mean-and they came onshore and were accepted for processing, they took the place of somebody elsewhere who would otherwise have been in the queue, as it were? Mr Farmer-Yes, that is right. Senator BRANDIS-Dealing with offshore applicants in particular, are you able to speak of their localities, both for refugee and humanitarian entry-I would like you to elaborate as fully as you feel the need to-and the circumstances in which those people find themselves? Mr Farmer-Senator, I could make some general statements. The officer who is directly working on this issue is not here, but we can certainly make some statements that might be helpful. Senator BRANDIS-I understand that it is a fairly discursive question and I am inviting a discursive answer. Mr Farmer-We essentially say to the UNHCR that Australia is ready to resettle a number of refugees each year. There are only quite a small number of countries that proactively express CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 835 to UNHCR the will to resettle refugees, as distinct from countries that face major problems when refugee flows come across a border as a result of a war or some other circumstance. We say proactively to UNHCR that we will take, usually, 4,000 refugees. We then discuss with UNHCR essentially where the areas of most need are. There are many millions of refugees and not all of them really need resettlement. Resettlement is not the preferred or the desirable option for a lot of refugees. There are other options-local integration or return home being two of the others. We have annual discussions with UNHCR about circumstances where they believe people are in particular need. Senator BRANDIS-So we are now speaking of people who, by definition, are outside of the country from which they are seeking refuge? Mr Farmer-Yes. Senator BRANDIS-In-what is the term you use?-an intermediate country or a third country. Mr Farmer-A country of first asylum or- Senator BRANDIS-Is `country of first asylum' the cabbalistic expression, is it? Mr Farmer-Yes. Senator BRANDIS-Who have expressed a preference to come to Australia? Mr Farmer-No. Senator BRANDIS-Not necessarily? Mr Farmer-No, the UNHCR's resettlement program is essentially based on need-for example, `This person needs resettlement.' The UNHCR will ask resettlement countries if they are willing and able to take people. So the criterion for the UNHCR is need, not preference. Senator BRANDIS-As opposed to the people of whom we have been speaking-those on the unlawful entry vessels in the second half of last year-for whom preference appeared to be an indicator of their intention? Mr Farmer-That is right. They may have a need, but they are acting on it in a very different way based on their preference for a country. Senator BRANDIS-I think you might see where I am going. I want to see what the material differences are between the people who paid for their passage on the SIEV vessels late last year and the more orthodox refugees for whom need is, what, the sole determinant, Mr Farmer? Mr Farmer-That is right. Senator BRANDIS-Could you speak to that, please? CERTAIN MARITIME INCIDENT CMI 836 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-Perhaps the best way to put it is that potentially there are very many refugees who could be resettled. The UNHCR, for example, runs very large refugees centres or camps around the world in places like the north of Kenya, for example. The Kakuma refugee camp is very large. It has, at various times, up or down from 100,000 people there. Many of them are Sudanese- Senator BRANDIS-I am sorry-how many did you say? Mr Farmer-Up or down from 100,000. Senator BRANDIS-100,000. Goodness. Mr Farmer-Many of those people at Kakuma are Sudanese who have been in that camp for up to a decade. The brutal reality is that there are insufficient resettlement places and, in many cases, rather poor prospects of return to the country of origin. It does mean that some people face rather long periods in, I think, quite difficult circumstances. The UNHCR does a terrific job in running centres like that. It tries to identify for resettlement the people, even among that sort of needy group, who are most in need of resettlement. Senator BRANDIS-Just for completeness, Mr Farmer, I assume you would also say that in many cases there are poor prospects for integration into the country of first asylum. Mr Farmer-Yes. In many cases, countries of first asylum themselves are overwhelmed by refugee numbers. Countries like Pakistan and Iran and a number of countries in Africa, from time to time, have had hundreds of thousands or millions of people from neighbouring countries crossing the border and living there and, on occasion, the domicile can be for very lengthy periods. So I do not underestimate at all the burden that the countries of first asylum share, in many cases, for a long time. I think, understandably, they in some cases have the view that permanent settlement in that country of first asylum is not desirable. Senator BRANDIS-How large do you estimate the global refugee population to be at the moment? Mr Farmer-That is a slightly changing figure. In general terms, the UNHCR says that there are around 20 million people of concern to it, but the figure is a little more than that. It does not mean that they have all been determined to be refugees. These would be people who are caught up in mass exoduses of one sort or another or who are living in camps or countries of first asylum for extended periods. Doubtless there are other categories. So it is a sizeable number. Senator BRANDIS-Mr Farmer, for that global population of refugees or asylum seekers, I have two categories: those who are living in what you have called refugee camps in facilities provided by or under the auspices of the UNHCR, and those who are not. Mr Farmer-Yes, it is a grey sort of area because, in many cases, countries set up areas where refugees or other temporary inhabitants live. The country of first asylum may well be running that sort of area but with substantial assistance from the UNHCR and/or other international organisations. There may well be other refugees who are simply living in a community making their own life and their own way. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 837 Senator GREIG-Can you offer a number for the global population of refugees who are living in camps or facilities run by the UNHCR? Mr Storer-I think it varies a bit. The number of people that the UNHCR determine are people who do need resettlement in a third country vary between 60,000 and 100,000 at any one time in any one year. Senator BRANDIS-Do I take it then that those refugees who Australia receives under its annual refugee quota from offshore are people who have come through UNHCR camps? Mr Farmer-Not necessarily from camps, but they are identified to us by the UNHCR. Senator BRANDIS-In all cases, the qualifying body is the UNHCR. Is that right? Mr Farmer-I am 99 per cent sure of that. There might be some exceptions at the margin but generally speaking that is true. Senator BRANDIS-Can you tell me or offer an estimate-and, if you cannot offer an estimate, please take this on notice-as to the average length of time that refugees or other humanitarian asylum seekers who have come to Australia from offshore under our refugee program have been waiting in the refugee camps or the other offshore facilities in Third World countries? Mr Farmer-I do not have a basis right now for answering that. We can try to look at our records. I hope you will not mind my saying this, but if this is a task that is proportionate and which I think is a reasonable use of resources, I will try to get that for you. Failing that, we might have people obviously versed in this area of work all the time, and we could give you some impressions. We will do the best that we can. Mr Storer-As Mr Farmer said, it would take a long time to go back on our records. It would be substantial periods of time in all cases. Senator BRANDIS-That is really what I am getting at. I do not want to ask you to undertake a herculean task. Mr Storer-It would be years. Senator BRANDIS-That is what I am getting at. Is it fair to say, as a generalisation but based on your professional experience, that the people who come to Australia from refugee camps in Third World countries under our refugee program are usually people who have been in those refugee camps for years? Mr Farmer-I believe that would be an accurate statement, because you used the phrase `usually'. With the UNHCR and in our program we do make a very strong effort to take account of cases of most need, both in the refugee and in the humanitarian entry categories. That can mean people whom, for a variety of reasons, the UNHCR has immediate concerns about, or people who are facing immediate problems. For example, some mixed marriage cases in the CERTAIN MARITIME INCIDENT CMI 838 SENATE-Select Tuesday, 16 April 2002 former Yugoslavia have certainly been cases of very immediate concern, and we have acted as quickly as we can. Senator BRANDIS-I understand that perfectly, Mr Farmer. What I gather from that is that the people who Australia takes under its refugee quota from offshore fall into either or both of these categories: the neediest, or in other words the most urgent refugees; or people who have been waiting a long time in these refugee camps-that is, as Mr Storer suggested, a period of years. Is that right? Mr Farmer-I think that, in general, that is right. I am not aware of the basis on which the UNHCR assesses relative need. But, in terms of those most in need, that is certainly a factor that we take into account. Senator BRANDIS-Mr Storer, I do not want to press you beyond the burdens of your patience with me but you said `years'; are we talking about one or two years, or three to five years? Mr Storer-You are testing me now, Senator. I think we will take that one on notice and come back to you. But, as you said, it is based upon experience of having been in this area, having seen some camps and having been involved in the program management. It would vary from case to case, as Mr Farmer said. In some cases we make extraordinary efforts, always working with UNHCR, in trying to get those people who are most directly in fear of persecu- tion-for example, the mixed marriage situation that was happening in the former Yugoslav re- publics at the time of their recent troubles. It did not matter which side, they were going to suf- fer some sort of persecution so we worked as quickly as we could. But in general circumstances, when we go to camps-in Africa, where, as Mr Farmer said, the Sudanese, who have been in extraordinarily difficult situations, are living in these camps, it has taken considerable time for the UNHCR to work through that with a whole range of people. There are particular groups within those camps that we worked with; for example, women at risk. There are a lot of women who have been subjected to rape and violence. They have been in the camps many years and are still- Senator BRANDIS-Do you mean rape and violence within the camps? Mr Storer-Perhaps, but more prior to arriving there-they had had a long journey from southern Sudan, through to the various camps in Kenya, particularly the Kakuma camp, which Mr Farmer mentioned. So it is difficult to be so categorical about years, but generally it is a long time in most cases. Mr Illingworth-I want to add to the comments of Mr Storer and Mr Farmer. The refugee convention does not actually create an entitlement for a refugee to resettlement, as distinct from protection. So when the UNHCR and countries such as Australia are looking to provide resettlement, it is very much a triage process. Senator BRANDIS-I am sorry but I do not know what a `triage process' means. Mr Illingworth-It is rather like the emergency ward at a hospital, where many may call for treatment but the order in which people receive a limited resource-you can substitute CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 839 resettlement for medical treatment, but the order and the priority is essentially assessed by a judgment of relative need. What that means for waiting times is that the duration of a wait in a refugee camp, just as the duration of a wait in the emergency ward, might actually mean that, however long a person waits, they will never get treated because their treatment is not required, even though they might feel they need treatment. It is similar for a refugee who is in a camp in another country: merely being there for a long time does not create a need for resettlement. Senator BRANDIS-I must say I understand that and that is a shocking thing to contemplate, particularly when one is considering the numbers of which we have been speaking and the global refugee population. You are talking about-to use your hospital casualty ward metaphor-either people who are so desperately in need of resettlement that they are, from a humanitarian point of view, a desperately urgent case or people who, if they do not fall into that category, may well face the prospect of an indefinite stay year after year as basically stateless persons in these refugee camps. Is that the picture? Mr Illingworth-It is from one perspective but resettlement is only one element of the dura- ble solutions which are available for refugees. The efforts of the UNHCR and the international community are focusing on the prime durable solution which is to bring about the capacity of the individual to return in safety and dignity to their homeland and their capacity to action their entitlement as a national of that country to be protected by their government. Senator BRANDIS-And it follows almost inevitably, may I take it, that the demand from people in these refugee camps in these distressed circumstances for resettlement places vastly exceeds the supply of resettlement places on offer. Mr Illingworth-Yes, that is true. Mr Farmer-Yes. Senator BRANDIS-By about what factor, Mr Farmer? Mr Farmer-It must be many times because of the size of the camps and the length of time that people have been there. Again, in general terms, there are nine major resettlement countries and then another nine, 10 or so countries that either are beginning to express interest in taking small numbers of resettlement cases or have begun taking small numbers of resettlement cases. Senator BRANDIS-Just quickly, what are the nine major resettlement countries? Mr Farmer-The United States, Canada, Australia, New Zealand and the Nordic countries-I do not know whether that gets us to nine, but they are the major ones. Senator MASON-The threshold for resettlement or the standard for resettlement is partly an objective test about need but there is also a relative test. In other words, using your hospital casualty analogy, it is about who the other claimants are for those positions; is that right? So there is both an objective test and a relative test. Mr Farmer-That is true. That is the sort of assessment, and it is obviously an extremely difficult one that the UNHCR has to make. CERTAIN MARITIME INCIDENT CMI 840 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-I read somewhere last week that approximately 80 per cent of the global population of refugees are estimated to be women and children; is that right? Is that consistent with your experience? Mr Illingworth-We would have to confirm the exact percentages, but certainly the consistent information is that the overwhelming majority are women and children. Senator BRANDIS-And presumably, when one comes to assess need-and I appreciate that this is not an exclusive criterion-one would intuitively think that children and mothers would be presumptively needier of resettlement than any other demographic category, wouldn't one say? Mr Illingworth-Particularly with certain cultural backgrounds for certain environments in camps that would be an issue that the UNHCR would look at very closely in identifying cases of need. Senator BRANDIS-This is a discursive question and a question inviting a discursive answer. I wonder whether any of you gentlemen would be able to describe to the committee from your experiences and your professional knowledge of the field what conditions are like in these refugee camps. Mr Farmer-Perhaps I will start off. I have been to the Kakuma camp in north-west Kenya. Senator BRANDIS-That is the one with about 100,000 people in it? Mr Farmer-Yes. I would just like to say, by way of introduction, that I certainly would not want what I say to be taken in any way as a reflection either on the Kenyan government, which is hosting this rather compelling group of people, or on the UNHCR, which I think is doing an extraordinary job in very difficult circumstances. Having said that, the Kakuma camp is a vast camp, as you would expect, and with that number of people there are a huge range of challenges. For a start, the UNHCR has to raise the money to provide quite basic accommodation, food and medical treatment for the people there, and I think the work they do on the ground is an amazing act of international public service. They do confront difficulties apart from funding. With that many people, there are security problems both in relation to conditions within the camp but also, in some cases, relating to the camp population and the population outside the centre. Frankly, in the circumstances, when you meet people-as we have-who have been in those camps for seven, eight, nine or 10 years, it is extraordinary the extent to which many of the refugees still maintain an optimistic outlook on life. We met incredibly impressive people at Kakuma. There were women who were Sudanese school teachers who, using their own extremely limited resources, had set up education arrangements for children in that camp. We met people who had a variety of physical disabilities who, in some cases through work involving their own efforts, were being provided with prostheses of the most basic sort but that were better than nothing. The dynamics of life in a long-established camp like that are rather different from the dynamics of a camp of the sort I visited in Rwanda, where the UNHCR had established quite a large camp to basically take care of people for a short term. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 841 Senator BRANDIS-This is immediately after the civil war? Mr Farmer-No, this was only a few years ago, but they were still dealing with populations who were moving around the country looking for a return to their place of origin. In some cases there were people from outside Rwanda, because there were problems in the Congo at that time. This camp was not long established; it was something that had been set up at very short notice by the UNHCR. There, you literally had bare earth with tents. The UNHCR was providing basic accommodation, sustenance and medical treatment for people in what I thought were extremely exiguous circumstances. So the circumstances in the camps were different, but both were rather difficult. I do not know whether my colleagues have different sorts of experience they would like to talk about. Senator BRANDIS-I appreciate that these descriptions must needs be impressionistic and, if I may say so, with respect, are no worse for being so. Do other gentlemen at the table wish to elaborate? Mr Storer-My experience is similar to Mr Farmer's. The conditions of living are very basic, but people manage with dignity to remain there and establish their community's support for each other. The actual conditions are extremely basic. I have not been to Kakuma but I understand that there are problems with wood, for example. I know that sounds silly, but the collection of wood to make the huts means they are in competition with Kenyans who need the wood for other purposes, so it is very difficult for everyone. It has become well known that a lot of the people who have gone to Kakuma are young single men and women who had to walk on extremely long journeys without their parents to actually get there. There has been a focus over the years on trying to resettle these extremely vulnerable young people. As Mr Farmer said, there are very few countries, unfortunately, sharing in this resettlement burden, fewer than the United Nations would like. Senator BRANDIS-Indeed. So the picture we get, to take up some of the adjectives that you have offered us, ranges from people living in-to use your words, Mr Farmer-extremely exiguous circumstances to people living in very basic circumstances. Is that the sort of range we are speaking of? Mr Farmer-Yes. Senator BRANDIS-Notwithstanding the social and emotional comfort built through family and social structures within the refugee camps, I apprehend that these people are essentially destitute. Mr Farmer-Certainly, in material terms that is the impression that I received. In mental and emotional terms, as I said, I think there are numbers of amazingly strong and robust people. Honestly, I thought those Sudanese women teachers were extraordinary individuals. But, on the other hand, they do not know what their future holds-they certainly know what their past has held, which in many cases has been long years of separation from their country and in many cases their family. CERTAIN MARITIME INCIDENT CMI 842 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-Presumably, as well-in a vast number of cases, though not all cases- they experience emotional deprivation as a result of separation from family, including the separation of parents from children and spouses from spouses; is that so? Mr Farmer-Yes, that is so. Senator BRANDIS-Dealing with the material circumstances in which these people have to live their lives, the exiguous or basic circumstances apply to the shelter they have, as you were saying in the Rwandan camp, whether it is tents or elementary but, nevertheless, more solid structures. Mr Farmer-In the case of Rwanda, it was tents and in some cases sort of large, plastic sheeting-I mean this was emergency accommodation. At Kakuma, much of the infrastructure was permanent tentage; in other words, tentage that had been built on boards and things like that. The hospital there, for example, was a very large tent affair. Much of the accommodation was tents, but people had also gathered together some pretty basic building material and had constructed small dwellings-with thatched roofs and that sort of thing. Then, the administra- tive buildings were things like- Senator BRANDIS-I am not so interested in the administrative buildings. I am trying to get a picture of the circumstances in which these people have to live. CHAIR-It sounds like the set for M*A*S*H but with a climatic difference. Senator BRANDIS-It does a bit, but maybe not with a climatic difference, depending on where they are. CHAIR-Well, it would be semitropical. Senator BRANDIS-Could you speak to the sufficiency or otherwise of the sanitation for the people in the camps with which you are familiar? Mr Farmer-At Kakuma it is quite basic because there are very serious water shortages. It is a very dry part of Kenya. It is in the far north-west, if I remember correctly. Some work has been done by, obviously, the UNHCR and by countries like Australia to help with some of that basic infrastructure, like water. The need there is immense. What has been done clearly has not delivered what we would consider as anything remotely approaching an acceptable standard. The conditions are, I would say, pretty rugged. Senator BRANDIS-What about the standards of nutrition that these people have available to them? Can you speak to that, please. Mr Farmer-On the basis of our discussions, that seemed adequate in that United Nations agencies and others, like the World Food Program, were working with the UNHCR to provide sustenance for the refugees. I think that was calculated to be adequate in terms of nutrition. It was extremely unvaried because of just the nature of logistical difficulties in getting supplies there, but there were supplies of flour, corn, oil and cooking fat. It was that sort of pretty basic sustenance, but much of it was vitamin enriched. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 843 Senator BRANDIS-I am a little familiar with this. I spent many years as a director of UNICEF, so I have spent many years reading reports about the sorts of facilities that UNICEF provides to people in these circumstances. I take it that that is one international agency among many which assists the UNHCR? Mr Farmer-That is right. Essentially, the people at Kakuma are given rations two or three times a week which they then cook themselves. Senator BRANDIS-So the nutritional conditions-and I appreciate these are very gross generalisations because there are different camps-are elementary but adequate, at best? Mr Farmer-That was my impression. In terms of the range of needs in a camp, the nutritional arrangements seemed to me better than other elements. Senator BRANDIS-I appreciate that you must generalise, but could you speak about the medical conditions and the provision of medical facilities and services. Mr Farmer-I thought that was an example of the UN in one of its more positive modes. I am not always positive about everything that every UN agency does, but I think the efforts that were being made to care for people were quite extraordinary. The personnel there certainly gave the impression of having much more to cope with than they could possibly manage. They certainly had to prioritise very severely in terms of what they could do. If you look at the full range of medical treatment, dental work, for example, was not really available on a broad scale to people, but some of the most basic and pressing needs were being taken care of by UN agencies and volunteers. Senator BRANDIS-But certainly not to a standard that would be acceptable, may I take it, in a Western country? Mr Farmer-That is right. By the way, we met some Australians who were volunteers and working in that camp. Senator BRANDIS-What about the educational needs of the children? Could you speak to that, Mr Farmer. Mr Farmer-I think it is true to say that over a period of years the UN and some of the refugees themselves have made efforts to construct an education system. Some quite experienced teachers were there among the refugee population. They were definitely making a go of teaching their kids. They made the point that, if you were in a place for a decade or more, you could not allow a generation to lose its education. So they were making a huge personal effort to make sure that the children had some education. Facilities were very basic, and basic things like books and so on were in very short supply. They were using slates and things like that that were essentially recyclable. Senator BRANDIS-Again, not a standard that would be acceptable in a Western nation? Mr Farmer-Very far from that, I think. I am not passing judgment on the people involved because I think they were really- CERTAIN MARITIME INCIDENT CMI 844 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-No, Mr Farmer, far from it. I do not think anybody takes you to be critical. If I may say so, you have told us exactly what the people face, the challenges they face and how heroically they seek to meet those challenges in very difficult circumstances. Mr Farmer, can you speak to the personal security of the people in these camps? I am particularly interested-though I do not want you to limit yourself to this-in the personal security, freedom from violence, and rape of the women. Mr Farmer-Again, I refer to Kakuma. I could not pretend to have a detailed first-hand im- pression of security because, by definition, that is rather more intangible than the other things that we have been talking about. The visit that we made was about three years ago. We were told that there were security problems within the camp. At that stage, there were about 80,000 people in Kakuma-as I said, the number has gone up and down-in quite deprived circum- stances. The UN officials, for example, had security concerns about the food stocks because they had had instances where their stocks had been broken into by people in the camp. That was one area of concern in the camp. There were certainly personal security issues that were referred to us, relating to relations between people in the camp and dealings between people in the camp and outside. Senator BRANDIS-Would it be a fair generalisation to say that the people in the camp were people whose personal security could not be guaranteed and who were constantly at least at some threshold of risk? Mr Farmer-I am not sure whether I would go as far as that, but I would certainly say that there were people in the camp who were particularly at risk: young unaccompanied people and women, for a variety of reasons. Then there were people who I think were less able to take care of themselves: handicapped people and some of the elderly. If I could just say something about the UNHCR budget-the UNHCR has a core budget and then it makes appeals for particular purposes. Generally speaking, the core budget is underfunded. There is a quite variable international response to UNHCR special appeals. For example, in recent years, in countries like Iran and Pakistan, which have had up to two million refugees each, the UNHCR has been able to spend I think about $US15 million or $US16 million a year. That is quite a small amount of money compared with the size of the challenge. I believe that the UNHCR itself says that, when it looks at the people in its immediate care, it has something like less than $1 a day to spend on their care, broadly defined. Things like security and so on are almost of necessity-not everything that even the UNHCR would want. Senator BRANDIS-Using Kakuma as an example-and you have told us that it is one of the better, or less desperate, of the refugee camps-with its population of 80,000 to 100,000 people, on your estimate, there must be thousands of people in that one camp alone at any given time who fall into what you have identified as the most at risk categories: single young women, unaccompanied children and handicapped persons. Would you agree? Mr Farmer-I believe that is right. For example, if you look at the Sudanese case load as a whole, that case load forms a significant part of our refugee program. That reflects just that point-that people from the Sudan are judged by the UNHCR in many cases as being in particular need. The Sudanese also form part of our special humanitarian program. So these are people that we ourselves, quite apart from the UNHCR, judge to have particular needs. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 845 Senator MASON-Senator Brandis asked an interesting question. About 10 years ago I worked for the UN in Cambodia and there was violence in refugee camps on the Thai border. In a sense it was of two distinct sorts. One was, let us call it, random violence and the second was orchestrated political violence-two quite different sorts. In the end, the UNHCR in the camps in Thailand had to separate the different factions of the Cambodian refugees that supported different sides of the conflict. I suppose Senator Brandis's point also goes to whether that is a problem among different tribal, religious, political groups within that camp. Is that an issue there? Mr Farmer-Yes; it may be. I don't recall that particular element as figuring there. I would not be surprised because it was a camp that had populations from different countries, the Sudan and the Horn of Africa. Senator BRANDIS-What are the banking facilities for people in the camps? Mr Farmer-I am not aware that they have any money. Senator BRANDIS-Do you have a copy of a document that has been declassified and released to the committee? It is a DIMA intelligence bulletin No. 52/2001 relating to SIEV4 dated 23 November 2001, and it was sent to the committee under cover of a letter dated 27 March 2002 by Mr Matt Kennedy. Mr Farmer-I know of the document but I am not sure we have got one here. I will just check that. Senator BRANDIS-Can I ask the committee secretariat to pass one to you. CHAIR-It probably is better if one is passed to you, Mr Farmer, because we can then all talk to the declassified document. It may be better if you have one to hand. I am cautious that we should conduct this discussion on the basis of the declassified document. Senator BRANDIS-I will only be asking him questions about the bits I can see, not the bits that have been blanked out. Mr Farmer-We don't have either. Senator BRANDIS-I am sorry. While that is being looked for, I will move on to another topic, dealing with the asylum seekers on the SIEV vessels in the second half of last year. In his evidence to the Senate estimates committee on 23 February 2002-this is at pages 72 to 73 of the estimates Hansard-Admiral Barrie spoke of having received intelligence reports from the ports of embarkation and he said: ... I think we were well aware that a considerable level of briefing was occurring at the ports of departure on how to try and counter our efforts to stop this activity. That is, unlawful entry into Australia. On Friday I asked him to elaborate on what he meant by that remark and, on page 800 of this committee's Hansard, he said: CERTAIN MARITIME INCIDENT CMI 846 SENATE-Select Tuesday, 16 April 2002 What I am referring to ... is ... the behaviour on board those SIEVs varied from time to time. There was a range of methods used to try to frustrate our successful conduct of the- Navy's- mission. I think that it was these people being told how to try to thwart our objectives. Then I said to Admiral Barrie: So your evidence is that the Navy became aware that the people occupying the SIEVs were being briefed at the ports of departure before they set out on these voyages to try to enter the Australian territorial sea as to what kind of conduct to engage in to frustrate the Navy's efforts? Admiral Barrie said yes and I said: And that includes the conduct of which we have heard so much evidence about in this inquiry, among other things, the threats to throw children overboard? Admiral Barrie said: That is right. Mr Farmer, I appreciate that there may be issues of confidentiality here-if there are, please flag them and we can go into a private session-but what intelligence, if any, did DIMIA have about the briefings or instructions being given to the SIEV occupants by the people smugglers at the ports of embarkation from Indonesia? I do not want you to limit yourself to this but I would like you to speak in particular, if you are able to, about the kinds of threats of which we have heard so much evidence in this committee-the threats to throw children overboard, to sabotage vessels and so forth. Mr Farmer-I would like to say something about the dynamics involved here, because in one sense they are timeless in that the organisers of this traffic have certainly tried to take account of what they understand to be the potential Australian reaction. This is something that, as I say, would have gone back some years. This is before the period starting in August or so that I know is of particular concern today. We had seen a pattern of a number of tendencies, such as the tendency, for example, for boats to come from Kupang in West Timor, drop people at Ashmore Reef and then return, the smugglers having told the passengers on the way to dispose of their documents. So that was an attempt by the smugglers to do several things: firstly, to avoid being apprehended and charged and prosecuted for people-smuggling by in effect dropping people at Ashmore and then making their getaway and, secondly, to in effect prevent our processing of refugee claims proceeding on the basis of well-founded documentation as to who was who in the case load. That was really a sort of bread-and-butter phenomenon for a couple of years in relation to Ashmore Reef but the pattern there was set, which was an understanding by the smugglers of the likely Australian reaction and their taking steps to thwart our plans. Senator BRANDIS-I am conscious of the time-and I see we have got the DIMIA intelligence brief to you, so I will move back to that in a tick-but, just quickly, did those threats include the sorts of threats of which I have spoken and of which we have heard so much evidence in the committee-to throw children overboard, to sabotage vessels and so forth? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 847 Mr Farmer-We were very conscious, during the latter part of last year, of a development along the lines of that basic dynamic I spoke of, which was that-obviously talking about Aus- tralia broadly defined-if we, in effect, sent RAN ships to the front line then that action would be treated with other sorts of actions that were being developed by the smugglers. The most ob- vious sort was to scuttle a ship. They knew that the RAN would pick people up and rescue them. Then, as Operation Relex continued-we are obviously not party to all of the details of that-it became clear, on the information available to us, that again the smugglers were devel- oping other means of frustrating the RAN's attempts, such as sabotaging vessels. Of course, in the case of SIEV4, that was of particular note because the passengers were wearing life jackets. That was an indication to us-and I think it was a reasonable assumption-that passengers were being briefed, in effect, to prepare to scuttle the ship because they could float around in the wa- ter and the RAN would pick them up. Senator BRANDIS-And of course we have heard the evidence of Commander Banks, the commander of the Adelaide, that when he first saw SIEV4 all of these people were wearing life jackets and the vessel was seaworthy. Can I take you back now to the DIMA Intelligence Bulletin. I think I described it wrongly before. I said No. 5/2001-it is in fact No. 52/2001. Mr Farmer-Yes. Senator BRANDIS-I take it that you have the declassified copy? Mr Farmer-Yes-I hope I have it! Senator BRANDIS-On some pages the entire text has been obliterated. But that is fine; I will ask you some questions about what we are allowed to see. Are you on the first page? Mr Farmer-Yes. Senator BRANDIS-Is it the one with the coat of arms at the top? It is just that we get confused with all the covering letters and so on. So it is the title page that you have? Mr Farmer-Yes. Senator BRANDIS-It is a report specifically about SIEV4? Mr Farmer-Yes. Senator BRANDIS-In the square which seems to be almost like an executive summary- on page 1, in the middle paragraph-the author writes: The main organisers of the boat were- and then there are some words which have been covered up that presumably identify those people. It continues: The majority of passengers had entered the smuggling pipelines post-TAMPA- CERTAIN MARITIME INCIDENT CMI 848 SENATE-Select Tuesday, 16 April 2002 I pause there to say that I assume this means post the Tampa incident, in the last week of August 2001. Is that how I am to read this? Mr Farmer-Yes. Senator BRANDIS-It goes on: ... and 11 September terrorist attacks in the USA-spending less than one month in Indonesia. Some passengers, however, may have been from- and some other words are blacked out. It continues: ... and had possibly been in Indonesia for up to five months. Do I understand that report to mean that, in most cases, the people on SIEV4 had entered the smuggling pipeline less than a month before they embarked on the journey? Mr Farmer-That is certainly the import of the intelligence, yes. Senator BRANDIS-This expression `smuggling pipeline', I take it, is a reference to the point at which the PIIs leave where they are coming from and seek, by overland or marine transportation, ultimately to come to Australia? Mr Farmer-That is right. Senator BRANDIS-So the start of the smuggling pipeline in this case-in almost all of these cases-is somewhere in West Asia? Mr Farmer-West Asia and the Middle East, yes. CHAIR-Can I just be clear? Is the `start of the smuggling pipeline', in your answer to Senator Brandis, the country of origin for these people? Mr Farmer-It is a simple question, but it has a slightly complex answer. There would be some people who would leave their country of origin and then immediately get into a smuggling pipeline. There would be many others-and we have seen a very sizeable number of people who fall into this category-who have spent periods of time, in some cases many years, in other countries, not necessarily a country of first asylum. We have had people who have certainly had periods of time in other European countries and in some of the Gulf countries, and so it really is quite variable. My impression is that the majority would not have come to us directly from the country of origin. Senator BRANDIS-You say that a number of them had lived, in some cases for years, in Europe? Perhaps you could take this on notice too: are you able to estimate roughly what proportion of either the SIEV4 entrants, or all of the SIEV entrants who ultimately came into the hands of Australian authorities offshore, had lived in Europe? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 849 Mr Farmer-I would say that it is really quite a small number. It bears on the point we were discussing earlier: the destruction of documentation. Part of the reason for destroying docu- mentation is that we do not find out that people have had prior protection in another country. It is a deliberate policy on the part of the smugglers to get their people to do that. Senator BRANDIS-I think Senator Mason is going to ask you some questions about document destruction. Senator FERGUSON-I assume that the people using the smuggling pipeline you talk about would also include those like the unaccompanied minor I interviewed in one of our detention centres-which I think was Woomera; we visited most of the detention centres-who, when asked how he came to arrive on a vessel, told us that he had flown to Indonesia by air. When I then asked him how he knew who to go and see about getting on a boat to come to Australia, he said, `But my grandfather arranged all that for me before I left.' Mr Farmer-Yes. Senator FERGUSON-It includes those people as well? Mr Farmer-It would be quite normal for a person at the beginning of the pipeline, whether in the Middle East or South Asia, in effect, to provide a service that takes people right through to the end of the pipeline, whether Australia, Europe, Canada or the United States. Senator FERGUSON-Do you know what percentage of people in this pipeline arrive by air in Indonesia or at their first port of call in Asia? Mr Farmer-The great majority come by air. They would come to a country in South-East Asia by air, either arriving directly in Indonesia or coming originally to another country, then getting a boat into- Senator FERGUSON-So it is quite a costly exercise? Mr Farmer-Yes. Senator BRANDIS-So this is the way it works: in the vast majority of cases they buy an airline ticket from the country where they have hitherto been, whether a country of first asylum or subsequent asylum, and fly into a country in South-East Asia-most commonly, I gather from this document, Malaysia? Mr Farmer-A lot go through Malaysia. CHAIR-Some through Thailand? Mr Farmer-Yes. Senator FERGUSON-And some straight to Indonesia? CERTAIN MARITIME INCIDENT CMI 850 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-Yes. Senator BRANDIS-Those who have not gone directly to Indonesia then go from the South- East Asian country to Indonesia? Mr Farmer-Yes. Senator BRANDIS-By ship or by air? Mr Farmer-Sometimes by ship, sometimes by air. Senator BRANDIS-I go to the DIMA report, page 3, second paragraph under the heading `Background'. When they arrive in Indonesia, they stay at hotels and apartments that are owned, presumably, by the people smugglers or people associated with the people smugglers. Is that right? Mr Farmer-Certainly someone ready to cooperate with them, yes. Senator BRANDIS-Would you care to comment-and I understand this has to be a generalisation-on the quality of shelter, sanitation, personal security and nutrition available to these people who are staying in hotels and apartments in Indonesia and compare their physical circumstances with the physical circumstances of the people living in refugee camps, of whom you were speaking earlier? Mr Farmer-That is a bit difficult because we are talking about different circumstances. In the case of people in Indonesia, we are talking about people using commercial operations. They are, at least when initially staying there, paying their way and so, in effect, they have access to really quite reasonable accommodation, sustenance and so on. I think that over time that situation can change, because as interdiction and other efforts have success people are thrown back onto their dwindling resources. Senator BRANDIS-Of course, these people have resources, unlike the people in the refugee camps. Mr Farmer-Yes. They are dwindling, though, so you can see that there can be a change in their circumstances. We have arrangements with IOM, the International Organisation for Migration, to provide resources for some of these people who are in need. Senator BRANDIS-Mr Farmer, in the fourth paragraph on page 3 of the DIMIA intelligence bulletin, we read: Prices paid to smugglers and agents varied from US$1200 to US$3500. If we are going to speak in dollars, we should translate that into Australian dollars-so it would be roughly $A2,500 to $A7,000. Do I take it that that is per person? Mr Farmer-Yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 851 Senator BRANDIS-And that buys them what-merely their passage, or the attempt to make a passage, from the port of embarkation in Indonesia to Australia? Mr Farmer-Generally speaking, that would also include the airfare to Malaysia, Indonesia or where have you, then the transit arrangements to and through Indonesia and, then, a boat there. Senator BRANDIS-So it is a package deal, in other words. You get your airfare to South- East Asia, you get your hotel or apartment accommodation in Indonesia and you get your passage-or attempt at making a passage-from Indonesia to Australia for the sum of somewhere between $A2,500 and $A7,000. Mr Farmer-Yes. Just on a point of detail, I am not sure about the accommodation in Indonesia aspect, but certainly you get the travel and what you would save putting together the package activity. Senator BRANDIS-I must say, Mr Farmer, it seems to me, hearing everything you have said-and allowing for the fact that, of course, these are people in circumstances of some distress-that the material circumstances of these people with the capacity to pay these sums of money for airfares and accommodation bear no comparison whatsoever with the material circumstances of the totally impecunious people in the refugee camps. What do you say about that? Mr Farmer-Senator, allowing for your qualification-namely, that these are people in distress, and that can certainly be the case-there are certainly indications that some people have arrived in Australia with substantial amounts of money. But we also certainly have indications that some people who have arrived in this manner have really sold everything they have. You might say, `They have things,' but they have sold them, and they did have the resources. So I think the case load varies a bit. Senator BRANDIS-I accept that. But it must follow, mustn't it, that if these people have at least that measure of material wealth-which is not a lot of money of course but at least they have some wealth-they cannot be regarded as being as needy as the neediest people in the refugee camps? Mr Farmer-As you know, a number of these people are found to be refugees-that is, to have protection needs. That is an important thing to say. But the bottom line is that there has not been a process involving them where the UNHCR has said, `Among all of these needy refugees, these ones are the most needy.' That is the core process that we and the UNHCR go through when we are determining which people we will accept from the UNHCR for resettlement. People who arrive in the process we have just been talking about have not gone through that process of comparative need. So, they may well have needs-including protection needs-but they have not been assessed in the comparative sense in which we normally assess people in our offshore refugee program. Senator BRANDIS-May I put it to you plainly that they are not in as needy circumstances as the neediest people in the refugee camps, of whom you have spoken. CERTAIN MARITIME INCIDENT CMI 852 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-I think to the extent that they have not been assessed by the UNHCR- Senator BRANDIS-And to the extent to which they have some money. Mr Farmer-Yes. There is no basis for saying that these people are more needy than people in camps. They have in effect elected to come in a different way. Yes, they do have resources that by and large do not seem to be available to people in camps like Kakuma. Senator BRANDIS-Going back to the first page of the intelligence briefing, in the smuggling pipeline it is a matter of weeks before they seek entry into Australia, compared with people in the refugee camps-who may have been there for some years, as we have heard. Mr Farmer-Ye. The people who we are talking about who have come into the smuggling pipeline may have a variety of backgrounds and have spent longer or shorter periods-in some cases quite long periods-in third countries. Senator BRANDIS-Though not generally in the refugee camps. CHAIR-It is an apples and oranges comparison. What you are saying is the length of time in the smuggling pipeline compared to the length of time in a refugee camp is not a direct comparison. Mr Farmer-That is absolutely the case. Senator BRANDIS-This is my last question. In general, these people are not people who have been in refugee camps, are they? I understand they have been in countries of first or subsequent asylum but they are not generally people who have been in refugee camps, are they? Mr Farmer-Certainly we get very few Africans via the smuggling pipeline. They do not have the money, essentially, to do that. With the Afghans and the Iraqis who come here, many of them have come from Iran or Pakistan. I have told you that the resources available for the UNHCR in those two countries are not sizeable. It cannot run camps of the sort we have spoken about in Kenya. It does work with the local governments to provide some facilities but you do not have camps of a comparable sort. The UN does not have the funds to do that. Senator BRANDIS-Thank you. Senator FERGUSON-Can I follow on from that question? You just said that we do have many refugees from African camps who have enough money to pay people smugglers to get here. In approximate terms, how many refugees has Australia accepted from any of the refugee camps in Africa in that year 2000-01-in approximate terms? I do not care if we do not get the exact figure. Mr Farmer-I think the African component of the refugee program is about one-third. Senator FERGUSON-About one-third? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 853 Mr Farmer-About one-third of the program and I believe that the Sudanese are the largest element in that. Senator FAULKNER-So it would appear that those who arrive on our doorstep who have managed to get here because they have the means and wherewithal to get here, take up two- thirds of that refugee component or two-thirds of those who approach- Mr Farmer-I am sorry, Senator, I think I might have misled you. About one-third of our regular offshore refugee program, that is, the 4,000 places that we work with UNHCR to fill on the basis of need, is filled from Africa and the rest in recent years, generally speaking, have come from the former Yugoslavia and the Middle East. Senator FERGUSON-So what you are saying is that roughly 1,300 or 1,400 come from Africa under that part of our refugee intake. Mr Farmer-Yes. Senator FERGUSON-But we have a number far in excess of that who have arrived onshore as illegal or unauthorised arrivals who have been accepted for temporary protection visas, and they are the ones who have had the money to be able to get here under their own steam. Mr Farmer-That is right, but they are not Africans. Senator FERGUSON-They are not Africans. The Africans who are destitute comprise only 1,300 or 1,400 under the regular program, but we have this number of people who have money. Mr Farmer-Yes. Someone will tap me on the shoulder if I am saying something wrong, but I believe that for the last couple of years the number of illegal or unauthorised arrivals, and the people who have subsequently been granted temporary protection visas, would be greater than the number of Africans we have accepted under the refugee program. Mr Storer-For the year we are going to get you figures, last year between 4,000 and 5,000 were temporary protection visas. That would have been included in the overall refugee and humanitarian intake for that year. Senator FERGUSON-But you also said earlier that if that number goes up, it eats into the number of humanitarian cases that we can accept under our program. While we have this argument and debate in the community about queue jumping and whether there is a queue, it is a fact that if we accept more people who arrive here unauthorised, that eats into that quota of people that we could accept under the regular refugee or humanitarian programs. Mr Farmer-That is correct. Senator BRANDIS-But many people in the world could come here if their places were not taken up by the unauthorised arrivals who are not nearly as needy as they are. CERTAIN MARITIME INCIDENT CMI 854 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-As a general proposition, I would accept that. I made the point that I would not necessarily make that judgment in relation to each and every person who arrives here. Senator BRANDIS-I understand that you were speaking in general terms. CHAIR-This is quite a critical point. Need is not the criterion to be classified as a refugee. Mr Farmer-That is right. CHAIR-The criterion to be classified as a refugee is that you are under some threat in your homeland. If all the people who are under threat in their homelands come from countries with different living standards, it is not surprising that there would be a difference in material means between refugees. Mr Farmer-That is correct. CHAIR-That is right, and basically we are looking at an economic issue here in the sense that demand for spots vastly outstrips supply and those with means find a way of using their means to try and insinuate themselves in the queue. It is not to say that they may not be refugees- Mr Farmer-That is right, and we are finding- Senator BRANDIS-We are saying that you have a global refugee population in respect of which the demand for places vastly outstrips the supply of places. There is an issue of priority where, as Mr Farmer has said, need is critical. Senator FERGUSON-You are much better off if you are wealthy. CHAIR-Here we are turning on to the state of wealth- Senator BRANDIS-It is a given that the people in the refugee camps are refugees. Mr Farmer-Perhaps I can help. CHAIR-But obviously an African may not have the same personal income as someone from the Balkans. Mr Farmer-Yes. In the sense in which we are talking, you are quite right. In terms of the refugee population, need is not a criterion for being classified as a refugee, but when we are talking with the UNHCR we are essentially saying to them, `You have a really large number of people who could potentially be in need of resettlement. They will not all be refugees because, as we have said, that is not the preferred option for many refugees, but among the refugees that you have identified for resettlement, which are the ones that the UNHCR thinks are most needy?' CHAIR-Needy in what sense? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 855 Mr Farmer-It can be a variety of senses. One can be an immediate physical security or safety sense. That can obviously be broken down into a variety of categories of small groups who are in particular danger in a particular- CHAIR-What place in the hierarchy does personal wealth, or lack thereof, count? Mr Farmer-I do not think it is really a criterion at all. The UN is looking at people's welfare, safety and survival. CHAIR-And that is how you mean `needy'? Mr Farmer-That is the sort of discussion we have with the UN when we are talking about relative need. CHAIR-As set out in your report, there were 219 passengers on SIEV4 and they paid between $US1,200 and $US3,500. Doing some quick calculations, that means the gross return to the people smugglers who organised SIEV4 was between $A½ million and $A1½ million. If we take the median point and say the gross return to the people smugglers for SIEV4 was $A1 million, do you have any idea what the profit margin to the smugglers was? Mr Farmer-In answer to your specific question, no. But I can give you an answer that might illuminate the issue a bit. We have done a lot of work overseas in trying to look at the people smugglers, their methods and so on. There is no doubt that, in the last five years, this has become a global industry that is very much more profitable than it used to be. People have developed their routes so that they are much more effect than they were. In terms of its overall value as a criminal industry, it is something that would clearly rival the drug trade. CHAIR-As I understand it, it is just behind the drug trade in the amount of money generated. Mr Farmer-Yes. CHAIR-And the profit levels are quite stupendous for the smugglers, as I understand it. Mr Farmer-Yes, that would be our general impression. In some ways, the risks are less in this area than in the drug trade and some governments, including in Australia, have taken legislative and other steps to try to increase those risks. CHAIR-And part of the profits of the trade possibly go to corruption of local officials and law enforcement officers in the countries from which the refugees depart to Australia. Mr Farmer-I think that is so. Senator MASON-Mr Farmer, I have a couple of points on the document that Senator Brandis was working from-the DIMIA Intelligence Bulletin-and a couple of questions on the information flow within the department. The Chair just asked a question relating to the cost to CERTAIN MARITIME INCIDENT CMI 856 SENATE-Select Tuesday, 16 April 2002 the passengers of being smuggled into this country. On page 3 of 15 the prices quoted are $US1,200 to $US3,500. Was that on SIEV4? Mr Farmer-That is right. All of this relates to SIEV4. Senator MASON-The evidence that Senator Brandis extracted before was that people pay somewhere between $A2,500 and $A7,000 to fly and then surf the smuggling pipeline. Is that right? Mr Farmer-That is right. Senator MASON-I have one other question relating to the DIMIA Intelligence Bulletin. At the top of page 6 of 15-everything else has been blacked out-relating to the `children overboard' issue, it says: Of the passengers interviewed, the majority expressed a concern that they were accused of throwing children overboard to force the Navy to pick them up. Passengers claim that children were simply held up to make the Navy aware that there were children on board and to stop the Navy firing warning shots, or ramming the vessel. The conclusion in this document is: This seemed to be a consistent statement, probably discussed by the group prior to being interviewed. I take it from that that this response was orchestrated or contrived. Is that right? Mr Farmer-I would not necessarily say `contrived'-if I understand the import of what you are saying-in the sense that they were not telling the truth, because I do not think that we are saying that in that statement. I think we are saying that, as we find in a number of areas of dealing with this particular caseload, people talk about the sorts of things that they are going to discuss with us and- Senator MASON-So `orchestrated' is a better word? Mr Farmer-That, I think, is better. Senator MASON-Does that relate to the next paragraph, which says: A committee of six passengers greatly influenced the other passengers. Allegedly, prior to meetings or communications with IOM or DIMA, they dictated what should and should not be said. Mr Farmer-Yes. Senator MASON-That reflects that orchestration. That's it for the document. I have just a couple of quick questions, if I might, chair. Senator Faulkner will go into this in great depth after lunch, but I will just touch on it, if I might. There was much questioning last week about the flow of information, whether it was from HMAS Adelaide or any of the Royal Australian Navy vessels that intercepted SIEVs, all the way up to whether it was the Minister for Defence or other ministers. Were you aware of all the other SIEV incidents that occurred? We have heard a lot about SIEV4, but were you aware of SIEV7, SIEV9, SIEV10 and SIEV12, for example? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 857 Mr Farmer-In a general sense, yes, Senator, in that we were working in this area, but in terms of the details of each and every incident I would say that my awareness differed. Senator MASON-I could not quite hear that, Mr Farmer. Could you say that again? I am sorry, I missed it. Mr Farmer-In a general sense I was aware of the flow of boats, but in relation to each particular boat my level of awareness of the details would have varied, because in relation to some I was involved at meetings where there was discussion of what would happen with particular boats. In relation to others I was not involved in meetings, and so other DIMIA officers would have been more au fait with what was going on there. Senator MASON-Let me get to the point. I am trying to find out whether there was a different briefing, in a sense, given to the Minister for Defence than there was to Mr Ruddock, the minister for immigration. We heard evidence last week that evidence of all those SIEV incidents was given to the Minister for Defence via the Head of Strategic Command, Air Vice Marshal Titheridge. That in a sense comprised a synopsis of each of the SIEV incidents, down to this sort of specificity-this was the evidence-whether children were thrown overboard or dropped overboard; whether there were threats to do that; whether there were threats of offensive behaviour; whether there were threats of suicide or self-harm, sabotage or fire; whether there were hunger strikes; and whether there was violence on board et cetera. That was all included in the synopsis of each of the SIEV incidents. I wonder, Mr Farmer, whether you were made aware of that level of specificity with respect to all those SIEV incidents. Mr Farmer-No is the answer. There were, in effect, I guess, different briefing lines for the Minister for Defence from his department, from anything that was going on in the immigration department. In a general sense we would have tried to keep our minister advised of the arrival of SIEVs in broad outline and of what was happening to the SIEVs. Senator MASON-Sorry to interrupt, but were you not aware of that level of specificity with respect to each of the SIEVs? Mr Farmer-I am absolutely not surprised that there was that level because I would have expected that sort of briefing to be going on. But, as to what I was aware of and what I actually saw, no, I did not see that. Senator MASON-Do you know if Mr Ruddock was made aware of that level of specificity with respect to the SIEV incidents? Mr Farmer-I do not know what was coming to Mr Ruddock from other sources. Personally, I would be surprised if Defence briefings of that sort were going to Mr Ruddock. We, at the department of immigration, would have been advising Mr Ruddock-but I would say more in outline than in detail-of the arrival of boats and what was happening in relation to each boat. Senator FAULKNER-Who would do the advising? CERTAIN MARITIME INCIDENT CMI 858 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-We would have a variety of ways of doing that. Mr Ruddock's media adviser was, on a number of occasions, in direct contact with Jane Halton, who was the chairman of the high-level group because a lot of these matters were being brought together in the high-level group and so Ms Halton was obviously at the centre of things. Senator FAULKNER-Yes, obviously. Mr Farmer-Yes, well, I did mention it. Secondly, the departmental officials would have been advised-for example, by Coastwatch or in the high-level group-of the arrival of vessels and what, in general, was being done to them-not necessarily in any great detail-and we would have tried to advise Mr Ruddock's office of the facts. Senator FAULKNER-I will follow this up after lunch because I know that Senator Mason wants to continue. It is a very important issue that he has opened up, and I am glad that he did open it up and I thank him for it. Senator MASON-I knew you would anyway, Senator Faulkner, so I was not too concerned. Senator FAULKNER-You can never be certain, Senator Mason. CHAIR-It is nice to know you people love each other but would you please ask questions. Senator FAULKNER-I would not say it is love. Senator MASON-We have heard evidence that on 24 October there was a child dropped overboard from SIEV7. Were you aware of that? Mr Farmer-No. I was not aware until I saw accounts of it after the Senate estimates, or perhaps it was at earlier meetings of this committee. Senator MASON-Was the IDC on people-smuggling made aware of that? Mr Farmer-I cannot answer that question except in relation to my knowledge because I was not at all meetings of the high-level group. Senator MASON-Could you find out whether it was discussed? You had a representative there at every meeting and if you were not there, Mr Farmer, there would have been a represen- tative there from your department. Mr Farmer-I believe that is the case. Senator FAULKNER-Or representatives. Mr Farmer-Yes. Senator MASON-Yes, indeed. Could you find out whether that was discussed? The child was dropped overboard on 24 October so it would have been at some meeting around that date. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 859 Given that the `child overboard' incident was of such moment on 7 October and that there was an incident on 24 October, a couple of weeks later, where a child was dropped overboard, are you saying that you did not know about this incident, and that it was not reported back from your representative at the IDC that a child was dropped overboard? Mr Farmer-I certainly have no recollection of that. Senator FAULKNER-Were you at the meeting on 11 October? You can check over the lunch break because I know that the chair would like to move on. You might let me know who was present at the meeting of the task force on the 11th. CHAIR-We are in a situation, Mr Farmer. We were hoping to, in the kindest possible way, dispose of you by lunchtime and none of the opposition have had a chance to conduct their examination of you as yet; I think that would take about an hour or so. We have Ms Halton coming at 2.30 and we are trying to keep our timetable. It seems to me that it is the preference to break now and resume in half an hour, if that is convenient for you. Mr Farmer-I am in your hands, Senator. Proceedings suspended from 1.05 p.m. to 1.35 p.m. Senator FAULKNER-Mr Farmer, I take you back prior to the events of 7 October and to the more general question of the establishment of the People Smuggling Task Force and your department's role prior to the task force being put in place. Some of the evidence that we have had certainly suggests that your department was the lead agency at that stage. Could you very briefly provide us with that background, when it changed and why it changed? Mr Farmer-In a number of respects, certainly DIMIA was central to a process which in the period leading up to the Tampa was also the focus of a lot of action by Coastwatch. So in regard to the border approaches we were in very close contact with Coastwatch. We were consulting with Coastwatch, AFP and other agencies on what was going on in Indonesia. We did not have a high-level group of the sort which was established late in August. The arrangements were rather more at the working level in intelligence exchange and liaison between DIMIA, AFP and Coastwatch in keeping track of vessels that were coming in. But the People Smuggling Task Force was set up at the end of August. That was partly in response to the Tampa range of issues-because that was developing, as you know, very quickly-but partly also because we had had a range of boats coming into Australia and we thought that you really needed a more concerted focus on what was happening and on government responses. Senator FAULKNER-Who is `we' in this instance? You say `we thought'. Mr Farmer-I certainly thought that in DIMIA, in order to bring together the whole-of- government effort, you needed a mechanism which would do that on an ongoing basis rather than on an ad hoc basis-that is, on the basis of working level contacts and then occasionally phone calls and so on at senior level. CERTAIN MARITIME INCIDENT CMI 860 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-And you passed that suggestion on to Mr Moore-Wilton, from memory, didn't you? Mr Farmer-I certainly said to Mr Moore-Wilton that I believed it was important that we have a process directed by Prime Minister and Cabinet. Senator FAULKNER-How did you do that? Did you do that verbally or telephonically, or did you do a written brief? Mr Farmer-I remember speaking to Mr Moore-Wilton in a corridor here in Parliament House. I do not know that I was the only one to make that statement, but I believed that that was required, and Mr Moore-Wilton agreed. Senator FAULKNER-He said it was your suggestion in evidence he gave to the estimates committee in late February. Mr Farmer-I am happy with that. Senator FAULKNER-You just had a corridor conversation with him? Mr Farmer-Yes. Senator FAULKNER-And was that what really kicked off the People Smuggling Task Force as a new IDC under the chairmanship of Prime Minister and Cabinet? Mr Farmer-Yes. By way of background, we had had a number of interdepartmental processes in the period since the beginning of 1999 to look at this sort of issue. We had a Coastal Surveillance Task Force that met from April to June 1999, I think. That was also chaired by PM&C. It looked at the circumstances surrounding the arrival of two vessels, I think, on the Australian eastern coast in 1999. There was an Unauthorised Arrivals Task Force, which was again chaired by PM&C. That started meeting, if I remember correctly, at the end of 1999 and then it really continued intermittently until it was superseded by the People Smuggling Task Force-the high-level group that we talked about. Senator FAULKNER-But of course the number of unauthorised boat arrivals actually dropped over this period, didn't it? Mr Farmer-Which period are you talking about? Senator FAULKNER-The figures that I have previously seen made available were that in 1999 there were 85 unauthorised boat arrivals, in the year 2000 there were 51 and in 2001 there were 39. They may not be accurate figures, but they certainly show a clear trend, don't they? Mr Farmer-There were ups and downs. If you look at the month of August in 1998-99 there were no boats. In 1999-2000 you had six boats. In 2000-01 you had one. The month before, in July, again for those three years, it was two boats, six boats- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 861 Senator FAULKNER-I have seen these figures. The annualised figures are 85 in 1999, as I understand it. Is that right? Mr Farmer-I have got financial years, which was 42 in 1998-99, 75 in 1999-2000, 54 in 2000-01. Then for 2001-02 we had 22 in the period up to December, including six in August. Senator FAULKNER-That shows the same trend. Mr Farmer-No, it does not. The trend is: 2000-01 in August you had one, 2001-02 you had six. Senator FAULKNER-You have got to compare apples with apples. In calendar year 1999 there were 85. That is right, isn't it? Mr Farmer-We don't have calendar year figures. Senator FAULKNER-Someone could add them up and that is the figure they would come to, because we are working off the same figures. In the calendar year 2000 there were 51 and in calendar year 2001 there were 39. I am trying to understand why the urgency come the latter part of 2001 with this change of lead agency and change of approach, that is all. Mr Farmer-I think I gave you the two reasons that were in my mind. One was that in August we had six boats and, secondly, the Tampa incident had emerged and it was quite clear that we needed a process to pull together a whole-of-government range of activities. Senator FAULKNER-Did DIMIA have primary responsibility for developing policy in relation to unauthorised arrivals prior to the establishment of the People Smuggling Task Force? Mr Farmer-No. I think that was part of my thinking. I thought that we had responsibility spread over a number of agencies. Senator FAULKNER-But was there a lead agency? Mr Farmer-We had an Unauthorised Arrivals Task Force, as I had said, which had been meeting under the chairmanship of PM&C, but that was meeting on an ad hoc basis. I do not know the dates of its meeting, but I thought we needed a different approach-namely, one coordinated at a senior level. Senator FAULKNER-But can you identify a lead agency on policy and strategic directions in relation to people smugglers prior to the establishment of the People Smuggling Task Force? Mr Farmer-The Unauthorised Arrivals Task Force was chaired by PM&C. That was the body that met on an ad hoc basis until superseded in August by the People Smuggling Task Force. Senator FAULKNER-In terms of development of policy, did your department have primary responsibility? CERTAIN MARITIME INCIDENT CMI 862 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-When? Senator FAULKNER-Prior to the establishment of the People Smuggling Task Force. Mr Farmer-No, because we had responsibility in relation to immigration issues. There were other issues involved as well, of course: offshore issues, which would have been looked at by the Attorney-General's Department and AFP, by Foreign Affairs and its agencies- Senator FAULKNER-So you say that PM&C was the lead agency even at that stage? Mr Farmer-It was chairing the Unauthorised Arrivals Task Force. Senator FAULKNER-But you did not have a whole-of-government approach? Mr Farmer-It was meeting in an ad hoc fashion, and that had proved its worth on a number of occasions. You are asking me why I made a suggestion and I am telling you, rightly or wrongly, I thought we needed a high-level group which would pull together agencies in the light of what was clearly a large number of boat arrivals and a very complicated set of matters flowing on from the Tampa issue and that we needed to have that process- Senator FAULKNER-But I asked you the question in this way because I thought it was quite reasonable to assume that it was your department that had the status of lead agency prior to moving to PM&C for a whole-of-government approach. It is not an unreasonable approach for me to take. Sure, it is an assumption I made, but you are now saying, `No, PM&C in fact had that role anyway.' Mr Farmer-That is right. Senator FAULKNER-So what changes were made following the commencement of Operation Relex? Mr Farmer-If we could go back just a bit earlier than that, because the People Smuggling Task Force started meeting earlier than that. It was really the Tampa set of days that sparked the meeting of the task force. It was by name and by function a high-level task force. I, for example, attended a number of meetings of that task force and there was very senior representation from other departments. I do not think that had necessarily been the case with the Unauthorised Arrivals Task Force. Senator FAULKNER-The People Smuggling Task Force did not have any terms of reference, of course, did it? Mr Farmer-Not that I am aware of. Senator FAULKNER-But you were not under any illusions about what it was supposed to do, even though it did not have any terms of reference? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 863 Mr Farmer-We had a job to do, which was to bring together all the government agencies involved to respond to this phenomenon of illegal boat arrivals. Senator FAULKNER-Its first task, of course, was to handle the Tampa incident-that is right, isn't it? Mr Farmer-Yes, the first time I remember meeting with this group was in relation to the Tampa. Senator FAULKNER-Then it goes off and deals with people-smuggling issues in the broad after the specific incident of the Tampa? Mr Farmer-I hesitate to say `people-smuggling issues in the broad' because, as I recall, the great focus was on the illegal boat arrivals. So I just do not recall the extent to which we got involved in the people-smuggling issues further up the pipeline. Senator FAULKNER-I am only using the words provided by PM&C who, in a tabled document, said that, `It'-just so that you are aware, that is the People Smuggling Task Force- `has dealt with people-smuggling issues more broadly since this time.' `Since this time' is since Tampa. Those are the words in the tabled document. Mr Farmer-I do not think we are having a disagreement; I am simply saying that, for ex- ample, I do not recall the sort of work done by DIMIA in relation to people-smuggling-for ex- ample, in the Middle East, Iran and Pakistan-being discussed in the high-level group. Senator FAULKNER-Understanding that background, what were the changes in the way the task force worked that can be related directly to Operation Relex? Can you identify any changes for us, understanding the point you make about the commencement of the task force work being around the time of the Tampa. Mr Farmer-From my perspective, there were really two changes: firstly, the level of representation, at least from some organisations, and the range of representation; and, secondly, the fact that the committee met in a more intense and regular way. Senator FAULKNER-Did you provide any advice to your minister about the necessity for the establishment of a different operation to the one that had been in place for the previous period of time-in other words, prior to the establishment of the People Smuggling Task Force? Mr Farmer-I do not believe I did. Senator FAULKNER-So the only advice you provide, in fact, is in a corridor conversation with Mr Moore-Wilton? You did not inform your minister that you had had that conversation, and suggest that there be a serious change and you need to get a broader whole-of-government approach to people-smuggling? Mr Farmer-It is quite probably that I would have told the minister or his office because I think it was a significant- CERTAIN MARITIME INCIDENT CMI 864 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-But what I am asking is: did you? Mr Farmer-I do not recall. My job is to let my minister know things that I think he should know, among other bits of the job, and this was significant so I think I would have informed him or his office. Senator FAULKNER-Would you have informed him in writing? Would a brief have gone up to the minister? Mr Farmer-No. Senator FAULKNER-So that would have been verbally too, if it had happened? Mr Farmer-I believe so, yes. Senator FAULKNER-But you cannot be sure? Do you remember how you heard about the establishment of the IDC? Mr Farmer-I think I had a discussion with Mr Moore-Wilton and then-I do not recall specifically, but I would suggest that what happened would have been that PM&C called a meeting. Senator FAULKNER-Would there be a paper trail for that? Do you recall that, or does one of your officers recall that? Mr Farmer-I do not. PM&C was the coordinator of the group, so it would be able to help you on that. Senator FAULKNER-I am asking deliberately from the point of view of your department: who takes the decision, as far as you are aware, and how is it communicated to you? I am asking this not from a PM&C perspective but, deliberately, from a DIMIA perspective. I may not be getting very far, Mr Farmer, but that is what I am trying to do. Mr Farmer-I spoke to Mr Moore-Wilton. I believe that Mr Moore-Wilton would have taken the decision and we would have heard from PM&C. I assume that that would have been in the context of PM&C calling a meeting. Senator FAULKNER-Given that there is a lack of certainty about this, and to perhaps save some time, I will ask you to take on notice the details of the establishment of the IDC from your department's point of view, Mr Farmer-in other words, who took the decision, how it was communicated to you, who communicated it to you, and what the reasons and background for it were. That might be the easiest way of dealing with it. Will you take that on notice? Mr Farmer-I am happy to do that. Senator FAULKNER-Thank you. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 865 Mr Farmer-Can I just say I do not know that we will have much to add to what I have said. I invite my colleagues to come in if they have anything to add. Senator FAULKNER-I imagine it does not happen by osmosis. I am sure there is something that you can lay your hands on. Mr Farmer-If it was done by a telephone call calling us to a meeting, there is nothing we could lay our hands on. Senator FAULKNER-Someone may have taken a note of it. Mr Farmer-I have said we will do our best. I am just saying, out of courtesy really, I am not sure that we will have much more to add. Senator FAULKNER-But given that, as you point out, it is a high-level task force that involves the secretary I thought it would be reasonable to ask you these questions. And I thought that, given its nature, PM&C may have made that suggestion which you are well aware of-and I am sure they did-via some process to you that I am interested in understanding more broadly. Mr Farmer-We will check. Senator FAULKNER-Thank you. I know that you are not the only departmental representative who attends the meetings; I know on occasions more than one DIMIA representative is present. Appreciating and understanding that background, could I ask you whether, to your knowledge, in relation to the work of the task force-or more broadly, but particularly the work of the task force-any decisions were made or directions given, as part of general policy or more specifically in relation to any of the numbered suspected illegal entry vessels, that asylum seekers be misled about where they might be taken or towed to. Mr Killesteyn-Can I perhaps ask for the context of that question? It is a bit hard to respond without some context. Senator FAULKNER-The context is quite simple, Mr Killesteyn. Allegations have recently been made-in fact these were aired on national television last night-that asylum seekers were misled about where they were being taken, their point of destination. Mr Killesteyn-You are talking about SIEV4. Senator FAULKNER-I do not know how relevant it is, but the context of this question is the fact that those allegations have been made. I am asking Mr Farmer specifically-or you or any other witness at the table who can assist me-whether you have any knowledge at all about decisions made or directions given either in a general policy sense or as it applied to any of the numbered suspected illegal entry vessels. Mr Killesteyn-Can I give you a general description of the approach that the high-level group took-and this applied right from the time that the people off the Tampa and the Aceng CERTAIN MARITIME INCIDENT CMI 866 SENATE-Select Tuesday, 16 April 2002 were placed on HMAS Manoora through to the transfers onto Tobruk and then other transfers. Essentially, we were keen to ensure that the asylum seekers had information which maintained a level of communication with them about what was happening. In every case we generally prepared some form of script which went through the sorts of issues that you have referred to: where you are going, what is going to happen when you get there, what is the nature of the accommodation-all those sorts of issues. As I said, that was an approach that was taken in every boat's case. In terms of the allegations that you are referring to, I think they come from the SIEV4 group-from those that are in PNG at Manus, if I am not mistaken. Senator FAULKNER-I am not clear that that is the case. I am not clear that it is limited to SIEV4 and I am not suggesting for one nanosecond that there is necessarily any truth to these allegations. What I am doing, Mr Killesteyn, is asking questions. I think they are reasonable questions and you have heard now on two occasions the context of my questions. They are that and that only. They are questions to you, but they do arise, as I noted, from public comments that have been made. Mr Killesteyn-In the process that I described to you about the nature of the information which was provided to the asylum seekers, in every case but one there were full details dis- closed of where they were being transferred to. Senator FAULKNER-What was the one case, Mr Killesteyn? Mr Killesteyn-That was in SIEV4's case. Senator FAULKNER-Can you explain the background to that? Mr Killesteyn-SIEV4 was the group that was rescued and was placed on Christmas Island for a number of weeks pending the finalisation of the centre in PNG. We were at the time doing the logistics of transferring this group to PNG. It was our view that, given the very complex nature of the transfer arrangements as well as the experience that we had had of moving people from the Manoora on to Nauru, it was better at that time not to disclose the final location of these people. They were not told that they were going to Australia, nor were they told that they were going to Papua New Guinea. It was a complex exercise. The safety of all concerned was of paramount importance to us and, as I said, the experience with the Manoora was quite difficult. Mr McMahon-Can I just add that they were told that they would not be taken to Indonesia, that they were going to be taken to another place, where they would be processed by Australian processing officers, and that when they got there they would be looked after by IOM. Senator FAULKNER-So, Mr Killesteyn and Mr McMahon, are you saying to me and the committee that, while the asylum seekers may not have been told the whole truth, they were not told a deliberate lie? Is that the significance of the answer you have given? Mr Killesteyn-Yes. The context is that these people were obviously keen to get to Australia-that was their intent-and any suggestion that they were not going to get their outcome could, we believe, have created a security incident. They ultimately may have assumed CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 867 that they were going to Australia. As to how they reached that conclusion, it is not a matter that I can judge. One can speculate that, based upon what they would have been told or knew in relation to the way in which Australia had been dealing with refugees or asylum seekers at that time, they would have been picked up and moved to Australia. That was the pattern. It is certainly within the realms of possibility that, once they had been told that they were being moved, they could have assumed that they were being moved to Australia. That was not the case. Senator FAULKNER-But they were not told deliberately false information-is that right? Mr Killesteyn-That is correct, yes. We told them that they were not going to Australia, but we did not tell them where. Senator FAULKNER-Was that decision made at the People Smuggling Task Force level? Mr Killesteyn-It was made in the high-level group, yes. Senator FAULKNER-Is that the only decision that was made in relation to any of the suspected illegal entry vessels that goes to final destination? If I am not mistaken-and I would need to check with my colleagues here-my belief is that the allegations that were made on the Four Corners program last night did not relate to SIEV4; they related to SIEV8 or- CHAIR-SIEV7, I think. Senator FAULKNER-maybe SIEV7. Mr Killesteyn-My recollection is that it was only in relation to SIEV4 that we constructed the script about where they were going in that fashion. Senator FAULKNER-When was that constructed script finalised at the IDC? Mr Killesteyn-I think they were transferred to Manus around 20 or 21 October, so it would have been at around that time. Senator FAULKNER-Was this standard operating procedure for scripts that were developed to be communicated to the asylum seekers? Were they, as a matter of course, notified to and agreed to by the IDC? Mr Killesteyn-Essentially, yes. It was a process that tried to deal with all the particular issues that each of the agencies may be responsible for. That was the pattern of operation that we adopted at that time. This was a whole-of-government approach and we were keen to ensure that all agencies that had an opinion and a view about the way in which these difficult issues were being managed had an opportunity to comment on the drafts and to include whatever thoughts that they wanted. Senator FAULKNER-I have asked you about destinations, Mr Killesteyn and Mr Farmer. Let me ask you more broadly now about the question of the purpose of asylum seekers' CERTAIN MARITIME INCIDENT CMI 868 SENATE-Select Tuesday, 16 April 2002 journeys under Australian control-which is a different issue. Can I ask whether, at any stage, any of those aboard the suspected illegal entry vessels were misled about the purpose of their journey under Australian control? Mr Killesteyn-My recollection, Senator, is no. They were told that they were being transferred to a processing centre to allow for their claims to be heard-and that was in the case of all SIEVs. Senator FAULKNER-So you can say to the committee then, Mr Killesteyn, that at no stage were asylum seekers misled about the general purpose of their journey. I am asking a broad question, as you can appreciate here, as opposed to a specific one about destination. That is the reason I am asking it. I suspect that is entirely obvious to you, anyway, but it is reasonable that I say it to you. You can assure me that at no stage were those on board the suspected illegal entry vessels misled about the purpose of their journey under Australian control? You can give the committee that assurance? Mr Killesteyn-Yes, I can, Senator. We were quite deliberate in preparing the scripts to en- sure that asylum seekers knew what was going to happen to them. Bear in mind that one of the issues of most difficulty in managing groups such as these-and quite understandable-is the level of uncertainty they have about their own future. We wanted to do what we could as best as we could to explain what was going to happen to them over the course of the next days and weeks and months. So the scripts went to issues such as where they were going, what they would find when they would get there, the nature of the amenities and accommodation, the at- titude of the governments of Nauru and Papua New Guinea, and the fact that upon arrival at these processing centres they would have an opportunity to present their claims for asylum. We then went into further information about what potentially could happen to them if they were found to be refugees, in which case we would generally advise them that we would seek reset- tlement for them. We would tell them, if they were not found to be refugees, that the advice was that we would be seeking arrangements to return them to a country which allowed them to enter. Senator FAULKNER-So I can also be assured that at no stage were asylum seekers misled about whether their requests for asylum were being, or would be, processed. Mr Killesteyn-That was the advice that we were giving to them. What they actually finally understood by the advice I cannot say. We made efforts in, I think, most cases to translate that information for their benefit. But I can be quite categorical in stating that the scripts were based on advising them that they were going to have processing of their asylum claims. Senator FAULKNER-All those matters went for determination? The messages, the information passed to those on board the suspected illegal entry vessels, went via the IDC? In other words, the decisions were made at the IDC level? Mr Killesteyn-Initially yes. Once we had some experience with developing the scripts and we essentially had a formulation that could be repeated then they were generally, I guess, delivered or developed at a lower level, at officials level, below the high-level group. But initially the broad pattern of the scripts was developed at the high-level group. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 869 Senator FAULKNER-At any stage, Mr Killesteyn, did you get down to the level of determining whether or not medical treatment would be given to individuals on board the SIEVs at the IDC? Mr Killesteyn-I think there were discussions about particular individuals from time to time, yes. Senator FAULKNER-Did the IDC actually deal with individual asylum seekers and their medical problems? Mr Killesteyn-There were cases where from time to time we had to make some sort of judgment about how particular medical attention could be provided to individuals, yes. Senator FAULKNER-Are you saying to me that such cases were approved or not approved at the IDC level or was it broader than that? Was it a matter of getting government, ministerial or prime ministerial approval? Mr Killesteyn-The cases were certainly discussed at the high-level group. There were some cases where we did discuss the particular proposals with the minister-at least my minister. Senator FAULKNER-Your minister? Mr Killesteyn-Yes. Senator FAULKNER-So you discussed individual cases of whether medical treatment would be provided to individuals on board the SIEVs with your minister-that is, Minister Ruddock? Mr Killesteyn-When you say `on board the SIEVs', I guess my reference is- Senator FAULKNER-I am sorry; you are quite right to correct me. I should have said `either on board the SIEVs or who had previously been on board the SIEVs'. Is that the point that you make? Mr Killesteyn-Yes, that is correct. For instance, there have been a number of cases where we have transferred individuals from either PNG or Nauru to Australia for medical treatment. Senator FAULKNER-Are you aware of any occasions where individual cases of medical treatment were left to the approval or otherwise of the Prime Minister? Mr Killesteyn-No, I am not aware of that, Senator. Senator FAULKNER-But your minister, Minister Ruddock, was left in a position of making decisions, or was it a matter of his advice being referred back for further consideration by the IDC? CERTAIN MARITIME INCIDENT CMI 870 SENATE-Select Tuesday, 16 April 2002 Mr Killesteyn-All I can explain-for instance, in the cases where we transferred people from Manus or Nauru-is that we received advice from IOM about the particular condition of the individual. We received further advice from our own medical resources about the best place for treatment of those conditions. We provided both oral and written advice to the minister about the nature of that advice, and we sought advice as to whether that could be handled here in Australia or should continue to be handled offshore. Senator FAULKNER-It is still not entirely clear to me, and I think it is best if you explain this, Mr Killesteyn. If a decision is to be made by ministers-and let me use the word `ministers' here as I think it is clearer-on an issue, as opposed to the IDC or task force making it at the officer's level, if you like, how is that transmitted to ministers? How or in fact does that advice come back to the task force for action, or is there some other line of communication- which means Navy or some other government agency or Defence broadly-which is able to ensure that such a government decision is carried through? I think it is important to understand that background. It may be better directed to you, Mr Farmer. I do not mind who answers the question, but I think you understand that this is a process question; it is about the decision making of the task force. Mr Farmer-Yes. Senator, could we just go back one step because I think there is an issue related to the SIEVs and what was said to the people on board. There is one element that we would like to return to on that. Senator FAULKNER-Yes, by all means, if there is something you want to add. Mr Killesteyn-Mr Farmer asked me to clarify that in relation to the scripts that we used for the boats. I was referring to all of the boats that either ultimately found their way to Christmas Island or ultimately transferred to PNG or Nauru. I cannot say whether particular scripts were used for the boats that were towed back to Indonesia. There were four boats that were towed back to Indonesia, so I just wanted to clarify that particular comment. Senator FAULKNER-I see. So your answers do not actually go to the four SIEVs that go back to Indonesia? Mr Killesteyn-What I am saying is that I was intimately involved with the scripts for all of those people who were transferred to Manus and Nauru- Senator FAULKNER-Yes, I understand. Mr Killesteyn-but I was not involved- Senator FAULKNER-I do appreciate you saying that because it is a very important qualification, as you would appreciate. Now I understand you identifying the SIEVs, which was different from some of the public information. So I do understand the qualification and I thank you for giving it, because I think it is an important one. I think you are saying that you are aware of-in relation to the numbered SIEVs-eight series of scripts but not aware of four others. Is that right, Mr Killesteyn? Mr Killesteyn-That is correct, yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 871 Senator FAULKNER-Would the department be able to take on notice the copies of-in English, I quickly add-the eight scripts that were approved and used for the relevant eight SIEVs, please? Mr Farmer-We can take that on notice. Senator FAULKNER-Can I ask you about another allegation that has been made publicly-and I do not comment on its veracity or lack of veracity. I say that because I have made it clear about some other questions I asked. Are you aware of any decisions made at the IDC level about the use of force by, in this case, Australian defence personnel or the types of weapons that might be used by them in their work following their instructions and tasking for Operation Relex? Mr Killesteyn-No, I am not aware of any. I think essentially there were operational orders issued by the Department of Defence. I certainly cannot recollect that the detail of those sorts of operational orders, and the nature of force that may or may not be used, was discussed. Senator FAULKNER-That is fine. I can be satisfied therefore that that matter was not discussed at the IDC because DIMIA was represented at all times, I think, was it not, at the IDC? Mr Farmer-I think that is right. In relation to the Manoora, the first vessel to go to Nauru-I think I am right in saying the Manoora-as you know, there was some delay while that ship was stationed off Nauru. There was a discussion there about how long we would continue the process of talking with people and what would be the contingencies there. I remember that discussion and I do not recall where that discussion went in terms of specific decisions. A lot of things were essentially, and I think appropriately, left to Defence to decide on the spot. The commanders had to make their decisions. I am trying to be helpful-so I think there was some discussion of what was obviously a dilemma and how to resolve it. Mr McMahon-I recall a very similar discussion. There was a question about whether force would be used. I recall that we discussed, particularly in respect of the Manoora, when it was sitting in Nauru, the issue of whether force would be used, but at no time can I ever recall a discussion there which said how it would be used if it were to be used. Senator FAULKNER-So what I think all three witnesses are saying to the committee-and correct me if I am wrong-is that that matter was not a matter for the task force-in the general sense it may have been whether force was used-but, in relation to how that might occur, was left more to operational decisions within Defence. Is that a fair summary of what you are saying to us? Mr Farmer-I believe that is so. Obviously this is now quite a while ago. I think we did discuss possibilities whether the AFP-or someone like that-might have a role, but as to the details of what happened in the end I do not recall particularly. Senator FAULKNER-But what happened in the broad about the use of force, Mr McMahon? Could you just explain that a little further to me so I understand-appreciating the detail of this matter being not discussed and how this might occur at the task force. Did the task CERTAIN MARITIME INCIDENT CMI 872 SENATE-Select Tuesday, 16 April 2002 force make a decision, for example, that force could or should be used? Is that the level we are talking about? Mr McMahon-The basic issue was, `Would the Manoora sit there forever if people did not get off,' so there were discussions around that. I do not recall whether or not we came to a point of actually agreeing that it would be used. I think that was an operational decision in the end. Mr Killesteyn-What was happening on the Manoora at the time was obviously a delay in transferring the people to Nauru. Initially, the process started by strenuous efforts at convincing the people to move voluntarily. That involved the representative from IOM and his staff at the time. It was successful to a point where we had an initial group come off, then there were fur- ther delays. There was a deliberate view on the part of the UAs that they would not come off. That became rather protracted. We then sought further assistance from AFP negotiators, who were transferred to Nauru and spent some time on the Manoora. Ultimately, it reached the point where the minister-Minister Reith, given that it was his assets that we were talking about- indicated that beyond a certain period, and I have forgotten now how long that was going to be, the transfers were to be effected. So a deadline was provided, in essence, as part of the orders. How that was to be implemented on the ground, or perhaps `on the boat' is a better description, was really up to Defence-they were the people on the spot, they knew the risks that were associated with involuntary removal from the boat-and, as we saw on some of the clips, some people were removed physically; whereas most of them ultimately went voluntarily. Senator FAULKNER-Can you shed any light on suggestions that the SIEV7's departure- from, I think, Ashmore Reef-was deliberately delayed during the election campaign? Mr Killesteyn-There were decisions taken on the basis of the preparedness or readiness of the centres to take further UAs. I cannot recall the timing of this, but we were always just one step ahead of the next boat, if you like, in terms of getting centres ready. So there was a number of occasions where we had to hold the boats a bit longer than we might normally if we were simply transferring them to the centres on Nauru and Manus. Senator FAULKNER-But you are aware of the suggestions being made in relation to SIEV7. I would just like to ask whether that matter was discussed at the task force. In other words, without beating around the bush, did you discuss the question of delaying the departure of SIEV7 until after the campaign launch for the Liberal Party during the election campaign? Mr Killesteyn-I cannot recall the discussions on each of the SIEVs and the particular issues. What I have told you-and what I stick by-is that we had to get the centres ready. Whether it was SIEV4 or SIEV5 I really do not know, but we had to get the centres ready, and that was always one step ahead of the next boat. There were times when we held people on the boats a bit longer than we might normally. Mr Farmer-I would like to say two things. One, certainly at no meeting that I attended was there ever any discussion couched in that sort of term of: `Let's do something because of the Liberal Party's campaign launch-there's a timing consideration there.' That would have, I believe, been quite improper. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 873 Senator FAULKNER-I did not think that anyone for one minute would be that unsubtle that they would actually say that. Not even I would think that anyone would be that dopey. Mr Farmer-Sorry, I misinterpreted your question then. Senator FAULKNER-I was talking about the delay in the departure of SIEV7. I bracketed what has been said publicly as late as last night on national television for that reason. I am ask- ing whether there was a decision made about delaying the departure of SIEV7, in the broad. I was not suggesting for one minute that people would be, as I said, so dumb that they would ac- tually say at the IDC that it was delayed because of the timing of the Liberal Party campaign launch. No-one would be that gauche. Mr Farmer-Not only dumb and gauche but improper. Senator FAULKNER-I hope they would not be that improper. Mr Farmer-That is right. Senator FAULKNER-I am not asking whether anyone said it; I am trying to find out whether anyone did it. Did anyone do it? Mr Farmer-I said that I wanted to say two things. The first thing we have disposed of between us. The second thing is that I do not have a particular recollection about SIEV7. Mr Killesteyn has mentioned one dynamic that was involved in the delay of boats. I am sorry I do not recall which boat it was, but at least one group arrived at Ashmore in an unseaworthy boat, and there was a delay while the Navy was trying to fix up the boat or fix up the engine, or something like that. So there was a delay while the boat was being made seaworthy. That was another dynamic that I recall from the time, but I am sorry I do remember which boat that was. Mr McMahon-Can I add that in respect of each of the tow-backs there was a sense of urgency about getting them back. It was mainly a logistical issue that stopped them. As Mr Farmer said, there was the issue of making sure that the boat was seaworthy and that the engine was working properly, but the other issue was making sure that proper notification of the Indonesian authorities took place. Senator FAULKNER-But you would appreciate, Mr Farmer, as I said before, that some of these matters have been raised as late as last evening on national television. I am sure you are aware of that, aren't you? Mr Farmer-I saw Four Corners, yes. Senator FAULKNER-One or two of my questions-only a few of them-go to those issues that have been raised in the public arena. I think they are perfectly reasonable questions to ask, and it is proper for you to answer them in any way that you see fit. Mr Farmer-Yes. CERTAIN MARITIME INCIDENT CMI 874 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Of course, one of the other issues that was raised was a suggestion that there was a use of electric batons, at least in relation to one of the SIEVs. I think it was SIEV5, but I stand to be corrected; maybe it was another suspected illegal entry vessel. Before that suggestion was made public last night, had you or any of your officers heard of that suggestion? Mr Farmer-I had not. Senator FAULKNER-In relation to the department's role more broadly, how does the decision making process that you are a part of at the IDC fit in? How do you link in to the minister and the minister's office? Could you explain that briefly for the benefit of the committee? Mr Farmer-In terms of the decision making in the high-level group, we have said in another venue that members of the high-level group were not always involved in the preparation of briefing or advice that went to the Prime Minister from the Department of the Prime Minister and Cabinet. It is quite normal for that sort of advice to be, in effect, jealously guarded by PM&C. In terms of advice to the Prime Minister, we were not involved in, as I say, the preparation of every bit of paper. We were on some occasions involved in looking at draft bits of paper prepared by PM&C and offering our comments on those. After those discussions, PM&C would finalise them and send them to the Prime Minister. We were never a party to the broader distribution of those pieces of paper by the Department of the Prime Minister and Cabinet. I think in one case at least the Bryant report says that one of the reports went to Minister Reith. That may have happened on other occasions, but we were not the master of that information. That was one form of product from the IDC prepared by Prime Minister and Cabinet for the information of, or decision making by, the Prime Minister and possibly other ministers. From the point of view of this department, we were involved in clearly a number of issues that were being discussed in the high-level group: for example, the establishment of the processing centres on Nauru and Manus; the very quick work that was being done on Christmas and Cocos Islands to develop reception capacity there and information in a general sense about the arrival of boats and what was proposed to be done by the Navy in relation to those. Some of those matters did not call for action outside of the high-level group by this department. They were not immigration matters. Others were: for example, our necessity to liaise with the IOM about setting up the offshore processing centres. We would have taken away from the high-level group the task of implementing the will that that should happen. So we would have, in effect, operationalised that. That would have been in immigration related matters, not everything that the high-level group was involved in. Senator FAULKNER-I am trying to understand how ministerial decisions were being reflected at the task force. You obviously had regular contact with Mr Ruddock and his staff, did you not? Mr Farmer-A number of the decisions were the result of the preparation of papers by the Department of the Prime Minister and Cabinet. They were preparing advice which would be referred to the Prime Minister and, as I say, on some issues at least, to other ministers. So the CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 875 high-level group would also receive back advice from PM&C about decisions that had been taken on a range of issues. Senator FAULKNER-Take for example something you have said before about medical treatment of individual asylum seekers: that was a matter for Mr Ruddock to make some decisions upon as opposed to you or another representative of the task force. Mr Farmer-Yes. Senator FAULKNER-In the broad, how does that process work? Mr Farmer-Depending on the urgency of it, on some medical issues we would talk orally to Mr Ruddock's office. On some matters I might have talked to him direct, depending on what it was, who was contactable and so on. On others we would have done advice in writing to our minister as we normally do. Mr Killesteyn-The high-level group shared information as well as, in a sense, trying to give some strategic direction on the way that the whole particular bits of the strategy were being implemented. In the case of the medical decision, for instance, that would have been raised at the high-level group so that everybody knew what was going on. Then perhaps we would have said, `That is a decision for Minister Ruddock,' and off we would go. Senator FAULKNER-When a decision goes out of the task force and the Navy or the Air Force are required to follow an instruction or decision from the task force, how was that communicated out of the task force? I assume it was not done by you. Mr Farmer-I cannot say for any of the other agencies but, to the extent that the particular issue was to be implemented by DIMIA, if it were a matter dealing with broad policy issues, Mr Metcalfe, the other deputy secretary, may have taken it on. If it were a matter dealing with any of the processing centres, I would take it on. If it were a matter dealing with the construction of the facilities at Christmas Island, Mr McMahon would take it on. How it was organised within each agency essentially depended upon the way in which the secretary or the departmental head wanted to allocate the particular responsibilities. Senator FAULKNER-Would you be able to tell me how the Navy was told of the government's requirement that SIEVs were not to be permitted to enter Australian waters and were to be returned to Indonesia? Would you know the background to that and how that was communicated? Mr Farmer-I think that would have been a matter for the Defence representatives coming out of the meeting. Senator FAULKNER-Were you part of the decision-making process in relation to that issue, for example? Mr Farmer-I am sorry, I do not follow you, Senator. CERTAIN MARITIME INCIDENT CMI 876 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Is that a matter for the IDC or is it a matter for ministers? Mr Farmer-Sorry, I am being slow. You are not asking a question about processing; you are now asking a particular question about the view that the- Senator FAULKNER-I am using this as an example about how this is communicated. There are inputs to the task force, there is a capacity for you to seek advice from your ministers and then there are decisions that are made. We were just talking to Mr Killesteyn about out- comes. Mr Farmer-When decisions came back from ministers, they could have come back in a variety of ways: for example, as a result of briefings prepared by the Department of the Prime Minister and Cabinet, Ms Halton would have briefed the IDC or the high-level group on outcomes there. The high-level group would have been briefed by the relevant departments on other matters being worked on by departments. If there were decisions coming out of the high- level group that had to be implemented, they would have been, in effect, parcelled out to the appropriate agency. Anything to do with the Navy's implementation of a decision would have been taken away by the Defence representative or representatives at the high-level group. Senator FAULKNER-Did the IDC go to the point of making decisions about, say, a vessel to be towed back to Indonesian waters? Did the IDC, for example, place a caveat that such a vessel must be seaworthy? Was that the sort of decision the IDC made? Mr Farmer-The general question of tow-backs was discussed by officials and then a decision was made by ministers. I do not recall whether it was a range of ministers. That was the process: discussion by officials, recommendations, decisions by ministers, then implementation. Senator FAULKNER-Do you recall any of the background to the issue of the seaworthiness of SIEVs to be towed? Mr Killesteyn-That is a given. Obviously when you are towing back, you hope that the vessel continues to float. Senator FAULKNER-You hope that. Mr Killesteyn-Yes. If it is not, you pick them up and you start the process again. With those sorts of operational issues, once a decision had been made that it was a legitimate part of the government's strategy to tow people back to Indonesia, the execution of that decision, given that it was essentially a maritime issue, would have been up to the Navy. Senator FAULKNER-Excuse me for a moment while I ask the Chair how we intend to handle the situation that we now have in relation to time. CHAIR-I understand Ms Halton is available in the building and could appear at a moment's notice, virtually, should we now call her. I note that we are one hour and 10 minutes into our questioning since lunch. It seems to me that, if you have a substantial amount of time yet to go, we could excuse these witnesses and call on Ms Halton, put on notice what questions can be put CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 877 on notice and, if there are other outstanding questions which require examination directly by the committee, find a time with these witnesses to call them back. That is one option. Senator FAULKNER-There are some that I will be able to put on notice, but there are proba- bly others that I would prefer to ask. We have lost more time than I think we expected to, but our suggested time allocated has turned out not to be accurate on this occasion. CHAIR-The other option is to plough on, but I would like some indication of time- Senator FAULKNER-But the problem I understand there is that for Ms Halton particularly it was extremely difficult to find the available time. I do not know how Mr Farmer is placed. Mr Farmer, if you were able to come back some time for a short time it would be useful. Mr Farmer-I am going to Darwin tomorrow and I will not be back in Canberra until May-I have a series of commitments in Darwin, then Sydney and then overseas. From my perspective, I would rather continue now. I think that is the only way I can help the committee. CHAIR-I appreciate that. The problem we are running into is that we do not wish to inconvenience departmental heads or senior public servants and we are trying to accommodate that lack of inconvenience against the role that the Senate has given us to deliver a report on this matter by 16 May. It is proving to be a balancing act, I think, beyond our capability and sooner or later we are going to have to bite the bullet about what we do about our deadline and so forth. Senator FERGUSON-Chair, I know we suggested this this morning with Mr Farmer, but the government senators have suggested that we will not take up a lot of time with the next witness, and we are prepared to let Senator Faulkner go first. I reckon we should allow him to go till 3.30 and see whether you and he can get in the questions you need to ask directly and whether there are some that can go on notice at 3.30. We are certainly quite willing to allow Senator Faulkner to question Ms Halton first. CHAIR-There is an offer for you to respond to, Senator Faulkner. Senator FAULKNER-What is your suggestion, Mr Chairman? I do not know how many other senators are keen to- CHAIR-I am not sure how long you think your questioning may take, but if it can be concluded-and I am not suggesting it should be-within three-quarters of an hour then we should plough on. Senator FAULKNER-I think it can be. CHAIR-I have about 10 minutes of questions; that is all. If we can wrap up by 3.30, given what is suggested, then our apologies to Ms Halton but I think we should plough on. Senator FAULKNER-I will also need to place some questions on notice, Mr Farmer. It is never as useful as asking them directly, as you would appreciate. CERTAIN MARITIME INCIDENT CMI 878 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-We have a very good record of responding to questions on notice pretty expeditiously. Senator FAULKNER-Yes, but one does not have the advantage of any follow-up ques- tions, as you would appreciate, Mr Farmer. CHAIR-I suggest we move on. Senator FAULKNER-Mr Farmer, when did the SIEV4 first come to the attention of your department? Mr Farmer-The SIEV4 is the one that was right at the centre of things, isn't it? As I recall, it was on Saturday when, in accordance with normal procedures, we had advice from Coastwatch. I think Ms Godwin, the head of the Unauthorised Arrivals and Detention Division, had dealings with Coastwatch on the Saturday. Senator FAULKNER-So the first information you get is on the Saturday and from Coastwatch? Mr Farmer-I believe that is the case, yes. Senator FAULKNER-When did you first get information from Defence? Mr Farmer-Do you mean that literally-when did I get information? Senator FAULKNER-When did DIMIA first get information from Defence about SIEV4? Mr Farmer-I think it was on the Sunday. I believe that the information that Ms Godwin had on the Saturday was from Coastwatch and then on Sunday morning, 7 October, information was provided to the high-level group from Defence. Senator FAULKNER-Is it true that none of the information-and I note this in Admiral Bonser's statement-provided to DIMIA from Coastwatch mentions children in the water? Mr Farmer-I believe that is correct. Senator FAULKNER-So your sources were Coastwatch directly and Defence. Apart from what occurs at the high-level task force meeting, you have information from other agencies in the form of Coastwatch and Defence. Is that right? Mr Farmer-No, before the high-level group, I believe it was only Coastwatch and Ms Godwin. Senator FAULKNER-I see. At any stage, were warning bells rung for you because there was no written material from Coastwatch or Defence about the fact that children had been thrown overboard? I ask you that given your central role, which we have previously canvassed and which I do not want to canvass again, in this issue being placed in the public arena. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 879 Mr Farmer-The written advice that came out of the high-level group on the night of 7 Oc- tober was discussed in that group. That contained the sentence, which I am sure you have read, relating to passengers throwing their children into the sea. Senator FAULKNER-Yes, but you also knew not too long after that, of course, that children were not thrown overboard. When did you become aware of the fact that there was some dispute about the fact that children had been thrown overboard? Mr Farmer-Can I just make one observation about this? You will notice that, on that piece of paper which I am sure you have, the report of the task force on the night of 7 October contained a caveat in relation to the number of people on the boat-90 men, 42 females and 54 children, `but this number may not be reliable.' Senator FAULKNER-Yes. Mr Farmer-When it talks about the attempts to disable the vessel, passengers jumping into the sea and passengers throwing their children into the sea, there is no caveat. There was certainly no alarm bell then. I said in another place that between 7 October and 7 November, as far as I was concerned, no information was received officially by me that cast any doubt on that report. I do not believe that it was discussed in the high-level group. No-one has ever mentioned to me that it has been. Senator FAULKNER-Who was there on 11 October at the IDC? That is an issue that I raised before lunch. Mr Killesteyn-I think I was, Senator. Senator FAULKNER-Mr Killesteyn, do you remember what Admiral Bonser recalls-and I do not know whether you have read it-in his submission to the Powell report? Let me read it to you: Additionally, at an interdepartmental meeting of the UBA group, held on 11 October 2001, I made note of an exchange between representatives from PM&C and DIMA along the lines that one or the other were apparently `concerned about (the) veracity (of reports) of children going into (the) water'. Given that you are the representative, Mr Killesteyn, can you shed any light on Admiral Bonser's witness statement? Mr Killesteyn-I regret that I cannot shed any light. I do not recollect any discussion at the IDCs about children overboard. Senator FAULKNER-You cannot help us? The admiral seems to have a pretty clear recollection that this was between a DIMIA officer and a PM&C officer. Mr Killesteyn-Yes. Senator FAULKNER-Were you the only DIMIA officer there? CERTAIN MARITIME INCIDENT CMI 880 SENATE-Select Tuesday, 16 April 2002 Mr Killesteyn-I do not know that. I was certainly there. But bear in mind that during that particular incident on 7 October I was not even in the country. Any notion that I brought some particular information, about an event that I only became aware of when I returned from Nauru, I find odd. I certainly cannot recollect that discussion. Mr Farmer-Senator, could you give us the reference, please? You mentioned the Powell report. Senator FAULKNER-I assume it is Admiral Bonser's, but it may be the Bryant report. Senator JACINTA COLLINS-It's not the report-it is a statement. Senator FAULKNER-Sorry, the witness statement. It may be to Ms Bryant's report; I am not sure. I have them all bundled up into one great big heap alphabetically. Mr Farmer-I do not think we have seen that. Senator JACINTA COLLINS-No, you would not have. Senator FAULKNER-Okay. Is it Bryant or is it Powell? CHAIR-Bryant. Senator FAULKNER-It is Rear Admiral Bonser's witness statement to the Bryant report- the second last dot point. Mr Farmer-We do not have that. Senator JACINTA COLLINS-It has been released, hasn't it? Senator FAULKNER-Appreciating that you do not have it, could you provide for me any information as to anyone who was present at the meeting, apart from Mr Killesteyn, who can throw any light on the exchange between Prime Minister and Cabinet and your departmental representatives. Mr Killesteyn-I am just checking the records of other DIMIA representatives at the meeting and I can only see my own name there. Senator FAULKNER-And you cannot help me? Mr Killesteyn-As I said to you, 11 October was the second meeting after I returned from Nauru. I left for Nauru on Sunday the 7th. I was not aware of any of the events associated with SIEV4 until I got back and read them in the newspaper like most other people. So I am quite confident that, in terms of any suggestion that I as the only DIMIA representative made reference to some concerns about the veracity of information, that reference certainly did not come from me. I was not in the country. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 881 Senator FAULKNER-Thank you for that. Mr Farmer, I will place on notice a range of questions about the costs of the Pacific solution. I know that Senator Bartlett asked you one or two this morning. I might ask some specific questions about that and some comparative costs along the lines of one or two questions asked by my colleagues and taken on notice at estimates. We might be able to deal with the matter quickly in that way. If I could ask you to turn that around at your earliest convenience I would sincerely appreciate it. Mr Farmer-We will do our best. Senator FAULKNER-On a general issue, have we had any changes to protocols or processes in relation to departmental processing of information relating to suspected illegal entry vessels-this is between the department and the minister-in the light of the experience around SIEV4 particularly, but going through the process from pre Tampa through operation Relex to the current day? Have there been any changes of departmental process put in place? Mr Farmer-I do not believe so. As you know, we have not had any boat arrivals this year-we have not had some for months-so the question has not been live. In a general sense, I can say to you that my approach has been, and remains, that if we say to the minister something that proves to be incorrect then we would advise him of that as soon as we possibly could. I think that is a heavy responsibility and one that I take very seriously, and I would do that no matter what the consequences. I am not only talking about boats; I am talking about anything in the department. That was why I reacted as I did on 8 November when I saw the first-for me, anyway-official suggestion, or at least the indication of an official suggestion, that that advice of 7 October was incorrect. I moved very quickly to establish whether there was any cause for follow-up action there. Mr McMahon-Can I just add to that by saying that during November there was quite a bit of discussion around the issue of information being passed down and what the protocols should be. SIEV4 was not the stimulus to it but simply-because of the Defence involvement-a change in the relationship about the way information was being distributed. Up to that time, Coastwatch had been the central point. With Defence taking a pivotal role in respect of border protection, there was considerable discussion about the need to actually make sure that information flowed through in some single way. So I am just registering the fact that the issue of protocols and information transfer was quite a significant issue at the high-level task force for some of November. Senator FAULKNER-Mr Farmer, since we last canvassed this issue at the Defence estimates, when you were able to reflect from the perspective of, I recall, a man in the street at the time- Mr Farmer-I am trying to forget that, Senator, but thank you for bringing it up. Senator FAULKNER-I did not mean to embarrass you, but I did want you to reflect, nevertheless, on any mistakes made, if you believe there were any. I am talking here about a departmental perspective-a DIMIA perspective-and if you could reflect on any mistakes made and lessons learnt. Have you had an opportunity to do that? If so, please share it with us. CERTAIN MARITIME INCIDENT CMI 882 SENATE-Select Tuesday, 16 April 2002 Mr Farmer-Yes, Senator. Certainly in relation to DIMIA I believe that we pursued our re- sponsibilities very effectively during that period. I made no bones about the fact that, acting in good faith and, I think, professionally, I passed on to Mr Ruddock information that, very much later, proved not to be well-founded. During the early bit of November, when I saw a suggestion that it might have been ill-founded, I immediately took steps to try to establish whether that was the case. The steps I took satisfied me at the time. They were not effective, as it turned out, but I believe that I took the necessary steps, and I certainly believe that my colleagues performed out- standingly under extremes of pressure. The huge demands that were put on them at that time I think were unprecedented. One of my reflections is that the Australian people are very well served by the public servants who work in this department. Senator FAULKNER-What about the lack of a paper trail, Mr Farmer? Is that a matter of concern, on reflection? Mr Farmer-For me, no. I am concerned with effectiveness and with outcomes. That means that I am concerned about paper trails where there is a quite appropriate requirement for a paper trail, in an audit or other sense, but successive governments have made it clear that they want a public service that is able to be flexible and get the job done. That, for me, does not mean producing huge mounds of paper; it means looking at what is the most appropriate and effective way of getting something done. Senator FAULKNER-What about the passing on of uncorroborated oral advice? Mr Farmer-I do not know that I would accept that characterisation of what happened on 7 October. I have already said that that was a high-level group meeting, that anyone in that meeting who was told anything by me about an immigration matter had the right to assume that that was authoritative advice from the Department of Immigration and Multicultural Affairs. Similarly, I and other DIMA officers had a corresponding expectation that anything said to us by representatives in the high-level group was an authoritative statement from their organisation. If there were caveats about material, then we had a responsibility to reflect those caveats. If there were not-I have already said to you in relation to this particular matter that there were not-then we had the right to take the information given to us by, in this case, Defence. Senator FAULKNER-Have you come to the conclusion that some things ought to be done differently in future? Mr Farmer-I have certainly come to the awareness that the process that led to that information coming into the high-level group was flawed and that, of course, has been at the centre of much of the discussion in this committee and in other places. I think that is the lesson that others are drawing-that before that sort of statement is made in that sort of meeting, then things should be properly corroborated. Senator FAULKNER-Yes, of course, but what about before it is disseminated? Mr Farmer-I have already said that if a representative in a high-level group passes on in- formation without caveats, then the other representatives in the high-level group have an ex- pectation that that information is well founded. You do not go into a high-level group and say, CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 883 `Well, the Attorney-General's Department says this about the law, but how do we know this? Perhaps the Attorney-General's Department had better check it,' and then go through every bit of advice and send people away. You had senior officials there who were supposed to be par- ticipating in a high-level group and I think talking authoritatively about the things that- Senator FAULKNER-But the whole aim of the exercise was to get it out as quickly as possible-this may not have been your imperative but the government's imperative-to use it for political advantage. What happened, of course, was that something that was utterly false was splashed on the front-pages of literally million of newspapers within a matter of hours. Mr Farmer-In relation to the point you have just made, Mr Ruddock was acting on the basis of advice given to him by me and I told him- Senator FAULKNER-Which was wrong. Mr Farmer-Yes, but he did not know that and I did not know that until very much later. Senator FAULKNER-But you do accept that it is wrong now, at least? Mr Farmer-I have read the Bryant report and I have followed some of what has gone on in the processes, so yes, I do. Senator FAULKNER-You said to me more than a month or so ago now that you felt that you were in the same position as a man on the street. Do you still think that you are in the same position as a man on the street? Mr Farmer-What I was saying to you then, Senator, was that I had not had the responsibility of forming an official view on the information and coordination processes within the Department of Defence. That was not my role or responsibility and still is not. You are running an inquiry, not me. I receive information from a variety of sources and I have just told you what my own personal conclusion is. That is on the basis of reading the sorts of things- Senator FAULKNER-It is important. You are a senior public servant in this country and your reflections are important, I would have thought, in terms of ensuring that such an exercise does not occur again. Mr Farmer-Yes. But if I had given incorrect information in a different manner-namely, to a group-and then I had found out that it was wrong, I would have done. What I do with Mr Ruddock, if I know something to be wrong or if something has gone wrong then I believe it is my responsibility- Senator FAULKNER-But in this case you accept no responsibility? Mr Farmer-No, I don't say that at all. I have been quite clear, Senator: I don't shy away from what I have done. I told Mr Ruddock the information that he subsequently used. I told him that in good faith based on information out of the high-level group. CERTAIN MARITIME INCIDENT CMI 884 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-As you know, the secretary of the Department of Defence offered the minister his resignation because of his own perceived failings. The Chief of the Defence Force gave this short-term consideration. Have you thought that any action might be appropriate on your part? Mr Farmer-No, I haven't, Senator. Senator FAULKNER-Just business as usual? Mr Farmer-I have not thought that any action of that sort on my part would be- Senator FAULKNER-No, but of any sort? Mr Farmer-Well, yes. CHAIR-I have a few questions, if I may, Mr Farmer. Is the task force-the high-level group, as you have referred to it-still convened? Does it meet from time to time? Mr Farmer-Yes, it is, Senator. CHAIR-It is ongoing? Mr Farmer-It is ongoing. CHAIR-I think you said earlier- Mr Farmer-I am sorry, I should say it is meeting less regularly now than it was because, obviously, the flow of boats has stopped, but there is still a variety of matters, for example relating to offshore processing, that need to be coordinated. CHAIR-And a variety of matters relating to the changing strategic situation, too, no doubt? Mr Farmer-I am sorry, I do not understand the point you are making. CHAIR-There is now a new government in Afghanistan. It would seem that the flow of refugees from that country, if not halted entirely, has been reduced to a trickle. That is a change from what applied previously. Mr Farmer-Yes. CHAIR-And that is something that the task force would be aware of and note? Mr Farmer-That is so. CHAIR-According to the Bryant report, as I recall it, you were the officer present at the task force meeting on 8 October. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 885 Mr Farmer-I do not think there was a meeting on that day, was there? CHAIR-Which day was it, the 7th? Mr Storer-Sunday the 7th Senator JACINTA COLLINS-There were two. CHAIR-There were two meetings that day-thank you for that correction-but you were present- Mr Farmer-I was present at both, and I think one or two other DIMIA officers were at both meetings as well. CHAIR-According to the Bryant report, your mobile phone rang during the course of that meeting. Mr Farmer-That is right. CHAIR-And the caller was the minister. You received a call from him. Mr Farmer-Yes. CHAIR-How far into the meeting did that occur? Mr Farmer-I think we have established, Senator, that the meeting started at about nine o'clock and the call- CHAIR-That is Canberra time? Mr Farmer-Canberra time, yes. CHAIR-Because we have got into all these time-zone difficulties about who was where at what time, given different parts- Mr Farmer-The minister was on the east coast, so we are safe, and the phone call was at about ten to 10. CHAIR-Sorry, the meeting started at? Mr Farmer-Nine o'clock. CHAIR-I do not need to know what the minister was ringing you about, but was the subject of his call the fact that children had been thrown overboard, or that allegation? Mr Farmer-No, the minister did not know of that when he made the call. Mr Storer might say something, because he was at the other end of the line with the minister. CERTAIN MARITIME INCIDENT CMI 886 SENATE-Select Tuesday, 16 April 2002 Mr Storer-I was doing the ringing. CHAIR-You were in the minister's company, Mr Storer? Mr Storer-I was, Senator. CHAIR-So, between you and Mr Farmer, we have evidence about what happened at both ends of this call? Mr Storer-Yes. As I said in the testimony I gave before at the legal and constitutional committee, this was a long engagement that the minister had. The other piece of evidence that was also provided was that at six o'clock that morning there were news announcements about this boat. I do not know where they came from, but we heard on the ABC news that this was an interception. So, when the minister arrived at this function at about a quarter to 10-he was to start the function at 10 o'clock-there were many more media than expected. He asked me what was going on and I said, `I understand that there have been announcements on the news about this new boat that has been intercepted by the Navy. You might want to talk to Mr Farmer to find out what the latest information is.' At about ten to 10, or a bit later-9.51 to be precise- we rang Mr Farmer, and he took the call and conveyed the information. CHAIR-You arrived at this function at quarter to, you saw the assembled throng-the ladies and gentleman of the fourth estate-and, prudently, given that you were two days into an election campaign, the minister rang the departmental head to find out what the latest information was about the report on the ABC that the boat SIEV4 had been intercepted? Mr Storer-I had arrived earlier than the minister at this function that had been set up before the election was called. As a matter of information, the convention arrangements did not start until the Monday-the 8th. The media had come to me and I said, `What are you all here for?' They mentioned all this. So when the minister arrived I informed him of this. I did not know, for example, that Mr Farmer was at that particular meeting. Senator FERGUSON-And the minister knew nothing about it either? Mr Storer-At that stage, no. Senator FERGUSON-He had not heard the news reports? Mr Storer-I cannot comment on that. He did not respond to that particular question. CHAIR-So the point of the phone call was? Mr Storer-To find out what was going on. CHAIR-The minister was going to be asked a question; that was patently obvious- Mr Storer-Yes, about the boats. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 887 CHAIR-and the minister needed to be up-to-date with the information- Mr Storer-That is correct. CHAIR-so he could frame his answers to any questions that might come? Mr Storer-Yes. Can I say that the meeting that had been already arranged for a week dealt with all the legislation that the parliament had passed in the previous two weeks, when there were seven bills, you may recall-certainly Senator Bartlett could recall it-and was to convey to a range of people, including ethnic media, in particular, in Sydney, the outcomes of all this. So it was pertinent-this boat arrival. CHAIR-Any editor would have had on their program for that day this meeting, which had been long planned, and the subject for it. They would know that an election campaign was under way and that this was a hot issue up until the election campaign. They would no doubt have monitored the ABC and advised their reporters that they wanted some questions to be asked. All of that is a reasonable presumption, isn't it, and a presumption that you made at the time? Mr Storer-Yes. CHAIR-So the phone call came to you, Mr Farmer-and what did you say, Mr Farmer? Mr Farmer-As a bit of background, you have to understand that the meetings were, of course, concerned with a great many issues and a lot of coming and going. On that morning, we had been told at the meeting from Defence that there had been some discussion about who in Defence provided that information, but we will leave that aside for the moment. CHAIR-Yes, I have left it aside for the moment. It was before you in whatever form it got there? Mr Farmer-It was before us. I had the phone call from Mr Ruddock who, in effect, said that he was going into a media conference and he wanted to know the latest factual information about this boat that had been reported in the morning. I told him that I was in the high-level group. I stayed at the table in the high-level group, and I made clear to him that I was doing that because I wanted to make sure that the information I was giving to him was properly understood by me and by the members of the group. CHAIR-My understanding is that, sotto voce, you had this conversation with the minister- Mr Farmer-No, it was not sotto voce. CHAIR-You had this conversation with the minister on your mobile phone- Mr Farmer-Yes. CERTAIN MARITIME INCIDENT CMI 888 SENATE-Select Tuesday, 16 April 2002 CHAIR-while the high-level group paused and listened in. Mr Farmer-That is right. I told him that we had had advice from Defence which was significant because it essentially came in three parts: that passengers were wearing life jackets-and we have talked earlier on about the significance of that-that some were jumping overboard and that passengers were throwing children overboard. Those were the three elements, and they were three new elements. CHAIR-Did the minister interrogate you about the details of that? Mr Farmer-I said we did not have any great degree of detail. CHAIR-This is subject to checking but-I think my recollection is accurate on this-that is essentially what the minister told the media, is it not? Mr Farmer-That is right. Those were the factual elements that he received and passed on. Mr Storer-He did not tell them immediately. He went through his normal procedure of talking about the legislation, which they were interested to hear, for an hour and a half or an hour and a quarter. At the end of that, he passed on the information that Mr Farmer said, because people started to ask questions about it. CHAIR-One suspects that, while everyone was interested in the prime subject, the media at least thought this was a hot story and wanted to get more detail about that- Mr Storer-That is probably correct. CHAIR-and were anxious to get to that point. Mr Storer-They were anxious to hear about the boat. CHAIR-Yes. All that sounds to me to be prudent and responsible behaviour by the department in your case, Mr Storer, and in your case, Mr Farmer. But what you have said is that there were no specific details available about the background to this incident. Did the minister come back to you at any other point to ask for more and better particulars? Mr Farmer-No, not until some time in November. In between that time, he had received the report produced by the Office of National Assessments. CHAIR-That is the report of what the newspapers said. Mr Farmer-As we now know. We did not know that then. CHAIR-But it is in their report: this is a run-down of what the newspapers are saying. Mr Farmer-I do not think the ONA report says that. I think ONA- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 889 CHAIR-That is a matter of fact. We have a copy of that report. Mr Farmer-I believe that he had seen the ONA report. I do not believe that there was other information from the department made available to the minister. I cannot say what information he had from other sources. The next contact I recall with the minister's office was not until 7 November. CHAIR-Did the minister have any other press conferences between that day and 7 November? Mr Farmer-I believe so. I think he was talking to the media-obviously it was during an election campaign so he would have been talking quite a lot. I think that he was making statements on this matter, certainly in the early day or days of that week beginning Monday, the 8th. CHAIR-The minister strikes me as being someone quite precise about what he says to the media and, in particular, about being accurate about what he says. Did the minister come back to you for further and better particulars at any point? I think you have said that he did not come back to you until 7 November. Mr Farmer-That is right. His office came back then. CHAIR-Did any journalist approach you or your department about further and better particulars of this incident after the minister's announcement? Mr Farmer-Certainly not me. During the election campaign we would not have been talking much to the media. CHAIR-No. You were in caretaker mode. Mr Farmer-Yes. CHAIR-But can you state for a fact whether or not further inquiries came to you or your department, given that your minister had made this announcement? Mr Farmer-I do not know of any. Mr Storer's division handles the public affairs matters. Mr Storer-I would need to go back and check, but I do not recall it, because of the fact that on the Monday it went into caretaker mode and so any public affairs material would have been- CHAIR-Flicked to the minister? Mr Storer-flicked to the minister's press person. CHAIR-Your department strikes me as one that prides itself in its efficiency and in anticipating what is required. Indeed, Mr Storer had anticipated accurately the needs of the CERTAIN MARITIME INCIDENT CMI 890 SENATE-Select Tuesday, 16 April 2002 minister at the press conference that day. Did you make any further inquiries, in case you were asked or so that you knew, as to what further and better particulars there might be about the alleged incident? Mr Farmer-Can I just say something. Clearly, the issue is at the centre of a lot of attention now. At that time, as I have said, I was the instrument of the information being passed to Mr Ruddock. But essentially this was not an immigration matter and, as I have already said, with the sorts of things we were working on, we were really preoccupied with other matters. So this question-I am just saying this as a statement of fact-was not on my mind as something that the department of immigration needed to pursue. We had had advice from Defence; it had been confirmed in the advice to the Prime Minister and, frankly, we moved on. CHAIR-You are anticipating me to some extent, because I will ask you in a moment about why you made no further inquiries, but let me just stick with where we are in time at this moment. Mr Storer, in the minister's presence, had identified the media's interest in SIEV4, following the ABC report that morning. He had advised the minister to ring you to get better and further particulars so that he could front the press conference and answer authoritatively. You give him the information that it has been reported to the committee at which you are in attendance that, among other things, children, or a child, may have been thrown overboard-or have been thrown overboard. The minister goes public with that information about an hour or an hour and a half later and it becomes the spectacular news that-two days into an election campaign-graces the front page of every major newspaper and electronic media outlet. Are you inviting us to believe that that is where your interest in this subject stopped? Mr Farmer-I am not inviting you to believe anything. I am simply telling you what I believed to be the case. From the evening of 7 October, when that written advice was provided-and that has been tabled, so you have that-until 7 and 8 November, for me the issue did not arise. We had other issues and there was no official information that came to me. There was obviously discussion in the media. CHAIR-So you have said. But the point is- Mr Farmer-And I do invite you to take note of that. CHAIR-I do take note of it. Believe me, I take note of it. But the point is: this is a department with a reputation for thoroughness and a minister punctilious about accuracy, and he gives a broad statement to the media. The obvious follow-up questions were these. Did anyone drown? What gender were they? Was anyone missing? How many? Was it a random act or was it an organised event? Were refugees-and this is in the purview of your department-in something like a hostage situation, saying to the Navy, `If you take us to Australia, we'll throw even more children overboard'? Was that the type of stand-off? They are valid questions, are they not? Mr Farmer-They might be, but I do not know that those questions were pursued at that time. CHAIR-I know, but that is what the evidence is saying. My question is: why weren't they? They are valid questions. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 891 Mr Farmer-I have heard some of the statements from Defence about what was in the ether on the 9th, 10th, 11th of October, or whatever it was. But equally I am saying to you that, as a matter of fact, I had no doubt about that advice on 7 October and that the matter did not come across my sight until 7 November. CHAIR-I am asking you why you did not take action. Mr Farmer-Because, Senator, this was a Defence matter, not an Immigration matter. CHAIR-Mr Farmer, if I may, it was not a Defence matter. Mr Farmer-And it was not a matter that had for me been the subject of any doubt. No report came to me from the high-level group or anyone else that suggested that there was doubt as to the facts of that matter. CHAIR-Mr Farmer, where I am struggling is that it is a matter for you to tell the minister that this alleged event occurred. It is a matter for your department-and, as I said, quite reasonably so-to pre-arm your minister about further and better information concerning this incident prior to a press conference. That is quite proper behaviour. Let us pick one of what I regard is a series of valid questions. It seems to me to be of passing importance for your department to know how organised, how structured, how threatening and how often this event may be repeated. They are the follow-up lines of questioning that commend themselves to the mind as being further information that your department would want to know about. Mr Farmer-Indeed, and we sent investigators to talk to the people on SIEV4 and they produced a report, a copy of which you will have in a declassified version. CHAIR-Yes. What is the date of this report? It is 23 November. Mr Farmer-That is right. They went to Manus on the weekend, I think, of 10 and 11 November. CHAIR-And you are saying that the minister or his staff never came back to you with any further questions, either? Mr Farmer-They came back to me on 7th November-that is, the minister's press adviser did. CHAIR-With what, specifically? Mr Farmer-He had seen an article in the Australian of 7 November headed `Navy officers contradicted Reith'. CHAIR-And he came back on that basis? Mr Farmer-The press officer basically rang me to ask from where the original information came to the minister, and I told him quite clearly that it had come from me and the basis on CERTAIN MARITIME INCIDENT CMI 892 SENATE-Select Tuesday, 16 April 2002 which it had come to me. I said I had heard nothing that questioned or contradicted that information, and I pointed out that Mr Reith's spokesman was being quoted that day saying, `Mr Reith has no reason not to believe the reports he has received from senior officers in the Navy.' In other words, the Defence portfolio was in the press on the same day, using the words that I have read out. CHAIR-Let us just go back to this event and recreate it again. The minister has a front page splash on the Monday but he does not ask you another question about this event. You have given him only the generality, none of the detail; you are saying to us that he does not ask you another single question until his press officer contacts you on 7 November, almost a month later. Are you saying he did not ask you a single question about this event? Mr Farmer-That is right. I have also said to you, Senator, that I do not know each and every contact that Mr Ruddock or his office had on any matter. CHAIR-I know. That is a matter for him. Mr Farmer-That is right. CHAIR-You may know but you would not be an authority on knowing. You may know inadvertently, I am saying. Mr Farmer-But if I knew I would tell you. CHAIR-Sure. I am not suggesting that you are withholding information, Mr Farmer. I am actually agreeing with you that you are not the person we should ask as to how many press contacts Mr Ruddock's office had. Mr Farmer-It is pertinent that, because many of these incidents were fast moving, a number of the contacts were between Mr Ruddock's media adviser and the chair of the high- level group that was really the one most up to speed with the most recent developments. CHAIR-Mr Ruddock had several press conferences during the election campaign and many of them ahead of 7 November when you next got a question. Did the department not think to supply him routinely with a brief setting out the further particulars? It is of some interest how this issue was managed, how this issue was resolved, who the people were involved in it, what the implications were for your department, as well as the policy you were pursuing. Did you not prepare any such brief? Mr Farmer-Not on this matter, no. The important thing is that you are the master and pos- sessor of a lot of detail, including detail from the Defence portfolio, that was not available to this department at that time. I am simply saying to you factually what happened. CHAIR-Why I am reacting as I am, Mr Farmer-since you raise this question-is that I have been a minister for some time and I know how ministers and departments tend to act when there is something like a crisis or a major event. Ministers tend to want to know everything about that so that they are authoritative, fully briefed, and can speak honestly and accurately about those events. Departments want to serve their minister by ensuring that information is CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 893 available to their minister. Usually, if a highlight event such as this happens, there are follow-up briefs to explain what else has happened in case there are follow-up questions to the minister. It seems to me that what you are saying is that after the initial press statement there was silence until 7 November. I just think that does not look to me at all like normal operating practice for either a minister or a department. Mr Farmer-There are several things to say, Senator. One I have already told you about- Mr Ruddock's media adviser being in liaison with the chair of the high-level group. Secondly, we were in caretaker mode from noon on the 8th and that- CHAIR-Did that prevent you telling him about further SIEV incidents? Mr Farmer-No, not at all. I am just saying that was an element- CHAIR-I understand the caretaker provisions. Mr Farmer-And the third thing is that-and I hope that this does not seem incredible-the children overboard was not the biggest issue. For me, 8 October was not on the screen. We were developing contingency detention facilities in Australia; we were working to develop facilities and take care of a range of matters on Christmas and Cocos Islands; we were involved in discussions with IOM and people on Nauru and Manus and implementing arrangements there. As I said in response to a similar question from Senator Faulkner in the estimates process, we were then in a challenge rich zone. This issue was not on the screen. It might seem strange to believe, but I am simply telling you the facts of the matter. CHAIR-I am quite ready to believe that it was not the biggest issue on your plate, but it was on every TV screen and on the front page of every newspaper, and it related to your portfolio. I have difficulty accepting that no further follow-up questions or pieces of information were taken. But that is what you have said, and I have to accept your evidence at that point. Mr Farmer-That is as it relates to action by the department. I have said that I cannot say what other approaches might have been made. CHAIR-I do not have time to pursue this any further. How many people smugglers have been prosecuted? Mr Farmer-It would be many dozens if we take into account the people who have captained boats that come to Australia. I will take that on notice and give you the exact details. CHAIR-I think I said earlier that SIEV4 made, in gross terms, roughly $1 million for the smugglers. What their actual clear profit was, after you take out their operational expenses, is not clear. But we agree that it is handsome and it is huge. I note that you nod affirmatively to that. Mr Farmer-Yes. CERTAIN MARITIME INCIDENT CMI 894 SENATE-Select Tuesday, 16 April 2002 CHAIR-So this is a very lucrative trade. I think we agreed that it is second only to drug running as a form of criminal industry which makes a lot of money. It was the policy, when you apprehended a SIEV, to try and get them to steer the boat back to Indonesia as a first priority rather than arrest the smugglers. That was a matter of declared policy-am I right? Mr Farmer-I think in practice that is what has happened. I do not recall the AFP being involved in any of those tow-backs. But it is a factual question whether those people went back on the tow-backs. I believe that is the case, but I think the Defence people would be the masters of that detail. CHAIR-I have no further questions at this point, but I have a number of questions that I will put on notice. Some of them are questions that I would have preferred to ask directly, but I do note that you have said that you deal with these things promptly. I have not had experience of your department before. I know that some do not, but I am mollified by that comment and I look forward to the answers. Senator JACINTA COLLINS-There is one issue that you raised, Chair, that I would like to take one step further, because Mr Storer looked at that moment as though he wanted to make a comment. It relates to a question that I would have asked him in your discussion with Mr Farmer just a moment ago. Mr Storer, were you present at the interview where Minister Ruddock, I think, was asked the question: `How many children were there?' Mr Storer-Yes. Senator JACINTA COLLINS-Was there no follow-up question to you from the minister to try and clarify that information? Mr Storer-No, there was not. He basically said, `We don't have information.' He just repeated what Mr Farmer had said: `I don't have any information on numbers.' There was no interest in the media, frankly, to follow up that question at the time. Can I just say that the media were particularly interested in the fact, in the second part of the information, that people had come prepared with life jackets on. To my way of thinking, listening to the interview later, there were surprisingly few questions on the `children overboard' issue. You said it made a big splash. I was a little bit surprised to see the newspapers the next day-I have just got a transcript-and I would say that only about three questions related to children overboard. They went on to ask a whole series of other questions about the boat arrival, the boarding party and questions like that, and a lot of questions about the preparation regarding having life jackets on. I think it is fair to say that that is the point the minister particularly focused on when he heard the information from Mr Farmer. Senator JACINTA COLLINS-That is fine, Mr Storer. It is just that I recalled from the transcript of the interview the minister was asked how many children, he was unable to answer and, as with Senator Cook, I am just a bit surprised that the minister did not seek clarification on that point, according to your evidence. Mr Storer-Yes, he did not. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 895 Senator JACINTA COLLINS-Mr Farmer, another question arising from some of the additional material we have picked up since estimates is that Air Vice Marshal Titheridge says that in providing the information to the IDC he would have caveated it. Can I be clear that your evidence is that you were provided with no caveats about the nature of the information? Mr Farmer-Yes, Senator, you can be quite clear about that. And the document of the evening of 7 October, which was looked at in that meeting, does not have a caveat. Senator JACINTA COLLINS-There is a question there. Air Vice Marshal Titheridge claims there was a meeting post the evening IDC meeting and we have some other participants in the IDC meeting that evening who claim that they did not see that report, so that is still one thing we have got to get to the bottom of. Mr Farmer-Well, that is not my- Senator JACINTA COLLINS-No, I am not asking you that question, but you are saying that there was this report and I am saying yes, but the stand in that is still not quite clear. There are only two other things that I wanted to go to and they relate to questions that Senator Faulkner was asking Mr Killesteyn earlier. Rear Admiral Smith provided us with a number of statements, and this one pertains to SIEV8 and a statement by Lieutenant Commander Heron who was the Commanding Officer of HMAS Wollongong. This has not been made public yet, but I should read you the full paragraph. Page 3 of his statement in the matter of the boarding of SIEV8 reads: That evening the UA's decided that they would not eat, stating that they were too sad and wished to die if they could not go to Australia. At 1711 I briefed holding party to maintain resolve and reiterate GOAS intention with reference to AI. I presume that is Ashmore Island. It continues: Both Boarding Officer and Holding Party I/C's achieved this using the message that Quote the government of Australia will only make a decision on whether or not to take you to Australia if you voluntarily go to Ashmore Island, behave and await the government of Australia's decision. Unquote. Is that an example of one of the scripts that would have been worked on by the working party? Mr Killesteyn-It is not in the scripts that I was involved with, Senator. Senator JACINTA COLLINS-But until you collate them all in answer to the question on notice you cannot be clear; is that right? Mr Killesteyn-Yes. Senator JACINTA COLLINS-The reason I raise this example is because immediately after that- Mr Killesteyn-Sorry, Senator. I might just clarify that one of the important messages that we were seeking to provide all unauthorised arrivals with was that the processing of any claims that they may have had could not commence until they had been settled into a particular processing facility. If they continued to behave in a way which was putting threats to the CERTAIN MARITIME INCIDENT CMI 896 SENATE-Select Tuesday, 16 April 2002 Australian government in any way, then our message back to them was, `We are not going to proceed with processing. If you want to make claims you have to provide yourself, make yourself available in an orderly fashion with good behaviour.' It was a clear, very strong message to all of them. Senator JACINTA COLLINS-I have no concern with the content of that message. I am seeking to understand the full context. But the next stage of this statement goes on to say: Ongoing de-escalation continued using moral ascendancy in order to maintain the status quo. Do you have any idea of what is being referred to as `moral ascendancy'? Mr Killesteyn-It is not in my language or my lexicon. I do not know what `moral ascendancy' means. Senator JACINTA COLLINS-I did not think it would be DIMA scripting, but I was just curious if you had anything to offer on that. The other relevant part of this, though, is that on this particular SIEV the UAs had what this statement describes as an `obvious misapprehension of the UA's over sovereignty of AI'. They then had a `change of heart based on understanding that AI is Australian territory and not Indonesian'. But what this statement does not go on to say was that they were actually apprised of the status or how arriving on Ashmore Island would impact on their potential status as an asylum seeker. So, in Senator Faulkner's question about the scripting, I would like to know if that issue was addressed as well. Mr Killesteyn-I will take that on notice. Senator FAULKNER-Were you scripting for SIEV5, SIEV7, SIEV11 and SIEV12? You mentioned that you had copies of the scripting for the eight SIEVs. Are you aware of which department holds the scripts for SIEV5, SIEV7, SIEV11 and SIEV12? Mr Killesteyn-No, I am sorry, I don't know. In fact, I am not even sure whether scripts were essentially provided in those cases. I would have to simply take that on notice. Mr McMahon-I do not believe there were scripts for those. Senator FAULKNER-Why weren't there scripts for those ones? Mr McMahon-There was some general protocol about the way they dealt with people when they first came-asking them to leave, that they were entering an illegal area or crossing a border et cetera. We did not have a lot of involvement in respect of some of the turnarounds, while we obviously had a lot of involvement when people were being moved on to Christmas Island or from Christmas Island to Nauru or wherever. Senator FAULKNER-But the scripts go to the communications between the Australian government, effectively, and the asylum seekers-those on board the SIEVs. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 897 Mr Killesteyn-That is true; but, as I clarified in my earlier remarks, a transfer to a processing facility was being put in place. DIMIA had the responsibility for that because we were managing the processing facilities through IOM. Senator FAULKNER-But, as a department, everything you say to them, or want to say, goes through the IDC on people-smuggling. Mr Killesteyn-In relation to the preparation of those scripts, which were for people being transferred to Manus or Nauru, they were initially drafted in consultation with all the members of the IDC. Senator FAULKNER-But you had no involvement with scripts for people on SIEV5, SIEV7, SIEV11 and SIEV12? Mr Killesteyn-No. And, as I said to you, I am not even sure whether scripts were provided. I just do not know the answer to the question. I can take it on notice. Senator FAULKNER-Were provided or were provided to the task force? Mr Killesteyn-Even to the task force. The issue essentially with the tow-backs was that a decision had been made by government that tow-backs were a legitimate response to some of these boats. Having made that decision, it was then for the Department of Defence, through the Navy, to execute the tow-backs. Ultimately, it was not a DIMIA responsibility. Senator JACINTA COLLINS-So there may be Defence scripts? Mr Killesteyn-There may be, but I cannot say categorically. Senator FAULKNER-Anyway, Ms Halton may know that. Senator JACINTA COLLINS-My final issue takes you back to the statement by Rear Admiral Mark Bonser. I am not sure that the earlier discussion showed it in its full context. The statement indicated: ... at an interdepartmental meeting of the UBA group, held on 11 October 2001, I made note of an exchange between representatives from PM&C and DIMA along the lines that one or the other were apparently "concerned about (the) veracity (of reports) of children going into (the) water". Is it possible that you were the `other' who was hearing another party raise such concerns? Mr Killesteyn-Anything is possible, but my recollection on this matter is quite clear. I left Australia on 7 October and I returned from Nauru on the morning of Wednesday, 10 October. I attended the high-level group meeting that afternoon, I reported back on my visit to Nauru and the issues that we were managing at that time and then continued to attend the meetings of the high-level group, including the one on 11 October. I am quite clear in my own mind that there was no discussion of the veracity of the reports about children or a child being thrown overboard. CERTAIN MARITIME INCIDENT CMI 898 SENATE-Select Tuesday, 16 April 2002 Senator JACINTA COLLINS-There was no discussion in the meeting or no discussion in two weeks- Mr Killesteyn-There was no discussion while I was there and there was certainly no comment from me about the veracity of the reports because I simply was not in a position to know one way or the other. Senator JACINTA COLLINS-The question I am coming to is: you do not recall hearing such a discussion? Mr Killesteyn-Exactly. I do not recall any such discussion. Senator JACINTA COLLINS-And you were the only DIMA official present on 11 October? Mr Killesteyn-According to the list of attendees, yes, I was. Senator JACINTA COLLINS-From my point of view, I do not know if whether or not you were in the country at the time of the actual incident relates to whether such a discussion could or could not have occurred. Mr Killesteyn-That is true. But I returned from Nauru up to my eyeballs in trying to work out how I could find more spaces for people in Nauru and get on with building the Manus facility. As we have said before, this was not a key issue for me. I came back to the photographs in the papers and, like most people, got on with doing what I was being required to do. Senator JACINTA COLLINS-But if there were, for instance, a PM&C person who was concerned about veracity, and it did figure in their mind-set more than you have just indicated it did in yours, and they expressed that view, that is equally possible? Mr Killesteyn-Anything is possible. But my recollection is it was not discussed while I was at the meeting, nor was it discussed with me, nor did I raise any issues about the veracity of the reports. I am quite clear on that. CHAIR-Senator Bartlett, you have a final question, then we will break for afternoon tea. Senator BARTLETT-I have one question to wrap up. I do have some others, but I will put them on notice because of the time. In relation to what I think was SIEV7, the boat that was taken back to offshore of Roti, the Four Corners report last night indicated that that vessel actually ran aground just before the island. Are you able to confirm that? I assume that boats that are returned are monitored by our surveillance to make sure they do not come back again. Mr Killesteyn-I cannot confirm it. I think the Navy is the best agency for you to ask that question. Senator BARTLETT-So you are not specifically aware of the fate of those people on that boat? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 899 Mr Killesteyn-No. Senator BARTLETT-I asked before about costings under expenditure that we provide to IOM on Indonesia et cetera. You were going to provide further details on that-is that right? Mr Farmer-That is right. Senator BARTLETT-In relation to that SIEV, would you be able to verify the suggestion or report last night that there was a baby on board that died just before the boat was intercepted? Are you aware of that? Mr Farmer-I think Defence is best placed to answer that. Senator BARTLETT-Are the assessments you make on PNG and Nauru approved or ratified by the UNHCR in any way? Mr Illingworth-There is no formal ratification process, but we liaise closely with the UNHCR on processes, we discuss issues of country information with them regularly and of course, as is the case with our onshore processes, there is full transparency to the UNHCR in what we do. If they wish to see what we are doing, by sitting in on interviews, talking to individual case officers or looking at individual files, then that facility is extended to them without question. And in relation to PNG, for example, we offered the opportunity for them to be observers and to participate in training which we provided to PNG officials who were taking advantage of our training to develop skills amongst their officers. Senator BARTLETT-Have UNHCR taken up the offer? Mr Illingworth-In that particular instance they did not. But in other instances of our rela- tionship with the UNHCR they have taken up offers to look at various parts of our processes and they are fully aware that that offer is a standing one. Senator BARTLETT-Do the decisions and assessments you make have any formal legal standing? Mr Illingworth-They do inasmuch as they will inform a view of the minister about whether to invite applications for a visa, should that ever eventuate. They certainly have a standing inasmuch as they identify people who would be the centre of our efforts for resettlement in other countries. And, should the matter come to an issue of a visa assessment for Australia, one of the criteria for one of the obvious visa classes, the humanitarian visa classes, will essentially have been already assessed. CHAIR-Thank you very much, Mr Farmer, Mr Killesteyn, Mr Storer, Mr McMahon and Mr Illingworth. We thank the department. We appreciate your attendance today. Proceedings suspended from 4.00 p.m. to 4.12 p.m. CERTAIN MARITIME INCIDENT CMI 900 SENATE-Select Tuesday, 16 April 2002 HALTON, Ms Jane, Secretary, Department of Health and Ageing CHAIR-Before I invite Ms Halton to take the oath or affirmation, can I just remind the committee that we will be having a meeting over dinner tonight. So we do have a very busy day of work and we have a serious agenda for consideration tonight. Ms Halton, according to a document that is in front of me, you do have an opening statement which you have taken care to circulate to the committee in advance. Would you prepare to speak to or read your opening statement. Ms Halton-I am pleased to be able to assist the committee in its inquiry today and, if I may, will start my evidence with a statement which outlines a number of key events. I would also like to provide the committee with an overview of the operation of the People Smuggling Task Force. I am aware that the events of 7 and 10 October and 7 and 8 November have been covered extensively both here and previously in Senate estimates hearings. In view of this coverage, I think there are a number of matters which are worth recording here today. I would like to say at the beginning that at no time was the PST or I told that children were not thrown over the side of SIEV4 on 7 October or that the initial advice from Defence was wrong or in doubt. The first advice I received of what was to become known as SIEV4 was on the afternoon of Saturday, 6 October 2001. I usually received advice soon after a new vessel was spotted, and, as was my habit, rang both Mr Moore-Wilton and Mr Jordana to tell them. Defence advised that, unlike earlier vessels, the passengers appeared to be wearing life jackets. We agreed that I would convene a meeting of the PST the next morning to discuss the handling of the vessel and its passengers and to prepare written advice for the Prime Minister. As a result, the PST convened at 9 a.m. on 7 October. All relevant departments were present, and the Defence member of the PST, Air Vice Marshal Titheridge, was represented by Group Captain Walker. You have already heard evidence regarding who first told the meeting that children had been thrown over the side of SIEV4. As I have said in my witness statement to Ms Bryant, I do not recall who first informed the meeting of events. I am, however, very clear that the first I knew of the matter was in a telephone call from Air Vice Marshal Titheridge. Ms Edwards records this in her notes as being at 9.15 a.m., and I understand that Air Vice Marshal Titheridge's telephone records show a call to me at 9.17-and I understand that was given in evidence. My handwritten records show that the advice to me from Air Vice Marshal Titheridge was that the potential unauthorised arrivals were: ... throwing kids o/b and trying to disable steering. When I received such advice, particularly from a PST member who could not attend the meeting, my habit was to relay the full details of such calls, including the source of the advice- which, from memory, was NORCOM-to the meeting. I do not recall any particular comment made on this issue by Group Captain Walker, and the meeting went on to discuss accommodation on Christmas Island, security and a range of other logistical issues. Members were asked to gather various pieces of information for a discussion later that day on handling options. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 901 As I have said in my statement to Ms Bryant, I did not overhear the discussion between Mr Farmer and Mr Ruddock. I also said in that statement that I did not recall phoning Mr Jordana, who was, as you know, the relevant adviser in the Prime Minister's office during the meeting. I have confirmed that, according to my records, I telephoned Mr Jordana at 3.30 p.m. to update him. The PST reconvened later that afternoon to consider the material gathered by departments and prepare advice. A first draft of a paper, based on the morning's discussion and outlining options, was tabled and discussed. Information gathered by departments during the day was added. Air Vice Marshal Titheridge had told me that he would arrive late and was to be represented by Group Captain Walker for the first part of the meeting. I am aware of Group Captain Walker's evidence that he advised the meeting that he had been unable to find signals outlining the events described in the morning. I do not recall this statement. However, 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. Air Vice Marshal Titheridge arrived part way through the meeting and helped with the editing and finalisation of the paper. Once agreement had been reached on its contents, it was sent to the Prime Minister and Mr Reith. The version of this pa- per was released by the Prime Minister and, I understand, also provided to the committee by Prime Minister and Cabinet. I would like to reinforce that the background section was a compilation of Defence advice, which they cleared. It says clearly: The boarding party report there are 90 men, including 4 Indonesian crew, 42 females and 54 children, but this number may not be reliable. This information, on Defence advice, was clearly caveated. The later statement-that passengers were again `jumping into the sea and passengers throwing their children into the sea'-was not. The reference in that document comprised one sentence in the background section. That sentence was included, as its context shows, to indicate that officials were expecting SIEV4 unauthorised arrivals to be more difficult to handle than previous arrivals. The fact that passengers were wearing life jackets and had made attempts to disable their vessel was consistent with this. On 8 October the PST did not meet, but regular briefing on events was received. Prime Minister and Cabinet made regular inquiries about the safety of the passengers and crew of SIEV4 and of naval personnel as events progressed and following the sinking of the vessel. This advice was passed on to others as it became available. On the evening of 8 October or on early 9 October, I heard a radio report that suggested that children may have been thrown overboard in response to shots being fired at the vessel. There was also some questioning of the detail of events at sea. PST had not been advised that any shots were fired and, as a result, at the meeting of 9 October Defence officials were asked to confirm all details of the event. I asked PM&C staff to pursue this with Defence. I should say that I did not doubt the event had occurred but rather was trying to answer specific questions about the timing of events. Nonetheless, I specifically asked Defence to confirm all the details and to advise us accordingly. CERTAIN MARITIME INCIDENT CMI 902 SENATE-Select Tuesday, 16 April 2002 PM&C officials held a number of discussions with Strategic Command during the morning and about midday they provided the chronology which you are already familiar with. The footnote to that chronology said: There is no indication that children were thrown overboard. It is possible that this did occur in conjunction with other SUNCs jumping overboard. PM&C officials then sought to reconcile the chronology with other details that had been provided. The issue of the footnote was not taken further as it was overtaken by the information that there were photos of the event that had been released to the media, there was a grainy video and Defence were collecting witness statements. The facts as we understood them were advised in the evening meeting of the PST. This evening meeting was, I believe, the last time the incident was raised in the PST until 8 November. This issue was not raised by Defence at any time of the subsequent period in question. Meetings of the PST occurred on an almost daily basis and the Secretaries Committee on National Security met during this period. I had no reason to suspect that there was any doubt about the facts. Over the next month the group continued with its main work of managing and advising on day-to-day issues. The next occasion on which I can recall any issue being raised in relation to SIEV4 was in the week 5 to 9 November 2001. As you already know, Ms Bryant passed on to me tearoom gossip from an officer in Defence that the photos released to the press on 10 October were in fact of the sinking and not of the `children overboard' event. You are also aware that this advice concerned me sufficiently to ring Mr Jordana immediately. As I have said previously, he responded that there was already speculation to this effect in the press and the matter was being discussed with Mr Reith's office. While I was concerned at this gossip prior to my discussion with Mr Jordana, my conversation with him provided me with reassurance. He did not seem concerned and said the issue was in hand. Minutes of the PST of 8 November record that a Defence official advised that the video of the event had been released, the content of the video was not discussed and Defence did not raise any issue about the original report of events on 7 October. The issue was not raised in the meeting of 9 November, which was primarily concerned with the handling of passengers from SIEVs 8, 9 and 10. In order to put all of the above into some sort of context, I would like now to very briefly outline how the PST worked. As you know, it was established as an interdepartmental committee to provide whole-of-government advice. My role as chair came from my then position as the relevant executive coordinator in the Department of the Prime Minister and Cabinet. The PST was set up and run on the basis that it provided advice on policy and operational issues as they arose. One of the group's key jobs was information exchange to ensure that all agencies were kept aware of relevant and emerging facts. It is important to understand that the role of the PST was not to insert itself into the chain of command within departments or the military. My habit as chair was to start every meeting with a roundtable update from every agency. I always asked those attending to update the group, to raise any issues that they wish discussed or considered and to ensure that all members were fully informed. The need to ensure we were kept fully informed was reinforced on many occasions. At all times the PST operated in a thorough and professional manner consistent with Australian Public Service practice and APS values. Where issues or concerns emerged, these were followed up and advice provided. With CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 903 hindsight, it is clear that some information which was available elsewhere was not passed to the PST. That concludes my opening remarks. CHAIR-Thank you very much, Ms Halton. Senator FAULKNER-Ms Halton, given that your opening statement is made in mid-April this year, I assume you have been able to prepare it with the benefit of a close examination of some of the material that is now in the public arena and of course was not available at the time of the incident which this committee is investigating. I just wondered if you had relied on the use of some of that material-I am not saying that is unreasonable-for drawing up your opening statement. Ms Halton-I should be very clear that the statements that are made in this opening statement are founded on my examination of my own records in some detail and information available to me as a consequence of going back, for example, and looking at my handwritten notes and a series of other things. What I have not done in preparing this statement is rely on the evidence of other witnesses. I have gone back to primary sources. One of the comments I would make to you is that, for example, it was not possible to earlier go back and look at every single record in relation to particular meetings. What I have done in preparing this statement is reacquaint myself with primary sources but I have not relied on things that people have said. Senator FAULKNER-I appreciate that background, and that is why I asked you. For the benefit of the committee, you might just indicate what the primary sources are in this instance. Ms Halton-I have gone back and looked at the minutes of meetings. I have gone back and reviewed, for example, some of the security information that is held by Prime Minister and Cabinet on who arrived in buildings at particular times and who left buildings at particular times. I have gone back and reviewed, or my colleagues have reviewed and advised me-I should be quite clear here-of information in relation to when papers were edited and by whom, for example. Senator FAULKNER-You sought your colleagues' advice in that regard in terms of the latter element of the primary sources that you referred to? Ms Halton-No, I did not seek my colleagues' advice; I simply asked a series of questions which needed to be answered from primary sources. Senator FAULKNER-Has this been a little disadvantageous for you because you now find yourself in another government department as opposed to where you were placed at the time these actual events took place? Ms Halton-Certainly I cannot any longer walk down one flight of stairs and readily go to the files. It is a bit hard to do that when you are in Woden. Senator FAULKNER-Did you check with any colleagues or others on the opening statement itself? CERTAIN MARITIME INCIDENT CMI 904 SENATE-Select Tuesday, 16 April 2002 Ms Halton-My opening statement was seen by one of my former colleagues in the Department of the Prime Minister and Cabinet just to check that there were no errors of fact. As far as he was concerned, I was advised that there were no errors of fact. Senator FAULKNER-Can you say who that former colleague was? Ms Halton-It was sent to David Webster, who is the Acting First Assistant Secretary in the Social Policy Division. I should say that that was this morning. Senator FAULKNER-But no changes to this opening statement or a previous draft of this opening statement were made? Ms Halton-This opening statement was drafted with my own fair hand and there have not been changes made to it, other than by my or my assistant's hand. I have to say I actually typed the first version myself. Senator FAULKNER-I raise it because of your comment a little earlier about the checking of information. Ms Halton-That was about primary sources, Senator, not about this statement. Senator FAULKNER-That related only to primary sources. Fair enough. You do mention in the statement your handwritten records, and there is a difference obviously between your handwritten records and the minutes of the People Smuggling Task Force. You might just explain for the benefit of the committee whether you actually take contemporary notes and, if so, what relationship those contemporary notes might have to the minutes of the task force. Ms Halton-My habit if I am chairing a meeting and speaking is not to write at the same time, because I find that a little difficult. If I am receiving a telephone call on something like this my habit, generally speaking, is to jot something down. I cannot say that that is always the case. In this particular case, when I went back through my notebook I found the handwritten note that I took down. It is in the section which is relevant to this particular meeting. When other departments were giving us particular facts-I have outlined the role of information exchange-what I tended to do was jot down those facts: numbers of people who were recorded and things of that sort. Senator FAULKNER-So you describe this as a notebook as opposed to a diary or a diary entry? Ms Halton-I think it is a question of semantics, Senator. What I have is a running day book, basically, and I take notes about particular issues that arise during a day: things that occur, meetings I am at et cetera. Senator FAULKNER-Fair enough. Separate to that, of course, is the formal record-the minutes-of the task force itself. Who actually had responsibility for writing and preparing those? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 905 Ms Halton-In this particular period, Katrina Edwards, who was the First Assistant Secretary of the division, was the note taker. Senator FAULKNER-That responsibility changed, did it? Ms Halton-There was the odd occasion when she was unavailable. As you probably imagine, there were many meetings over this period and, from memory, there were occasions when someone else would actually take those notes. Much later in the process Ms Bryant did take some notes in the meeting-towards the end of October is my recollection-but Ms Edwards was the principal recorder of minutes, if I can describe her that way. Senator FAULKNER-Is there a distinction between the role of the note taker, which I assume you are using in the normal Public Service definition of `note taker' as opposed to formal minutes or a formal record of decisions? I am wondering if there is a distinction between those descriptions. Ms Halton-I am a bit unclear as to the point you are trying to get at, Senator. Senator FAULKNER-You said that Ms Edwards-and later on, Ms Bryant-was the note taker? Ms Halton-Yes. Senator FAULKNER-Were those notes converted into minutes? Ms Halton-Yes. Senator FAULKNER-If so, was that done by the note taker? Ms Halton-Yes. Senator FAULKNER-Did they go back to the IDC? Ms Halton-No. Senator FAULKNER-I am just wondering how you-or do you?-get to the point of a record of decisions. Ms Halton-If what you are asking is, `Were the minutes reflected back at the next meeting?' the answer is no. If what you are asking is, `Was there a record of key issues raised and/or decisions taken?'-`decisions' is probably the wrong way to describe this forum, to be quite frank- Senator FAULKNER-`Outcomes' maybe? Ms Halton-`Outcomes' would be a better description. Sometimes there was a product of the meeting-you are aware of one of those, which was the paper prepared by that group which CERTAIN MARITIME INCIDENT CMI 906 SENATE-Select Tuesday, 16 April 2002 went to Prime Minister and Mr Reith-and often the outcome of the meeting would be a thing: a paper or whatever. Senator FAULKNER-Okay, but `outcomes' did not go back to subsequent meetings for endorsement; they just became part of the ongoing record of the work of the task force? Ms Halton-That is correct. Senator FAULKNER-Did you keep a weather eye on that as the chairman of the task force? Ms Halton-Not really because, to be quite frank, we were running so fast and, as you know, there were a series of issues being dealt with and the issues that came out of particular task force meetings were often then themselves considered in the next meeting. It was the nature of the iterative process of the work. So, no, those minutes were not subsequently referred to me. Senator FAULKNER-I will try in a comparatively short while to deal with things in a fairly logical way-in part, chronologically-but I just wanted for a moment to deal with one or two issues I raised an hour or two ago with the department of immigration officials-Mr Farmer, in particular. I just want to rule those off. They were able to assist me with some matters, but there are one or two matters that were left in abeyance, and I would like for a moment to clear a couple of those issues up. I was talking to Mr Farmer about task force decisions or directions relating to those on board the numbered SIEVs 1 to 12 and asked whether the task force made any decisions that meant that asylum seekers may have been misled about where they were being taken. To be fair, before I ask you to answer this I might indicate, as I did to Mr Farmer, that one or two of these issues were raised on national television last night. I pointed him to that as he probably asked what was the background to the questioning. Ms Halton-Senator, I have been told this morning that this issue was raised on national television last night. I was speaking at a dinner so I did not happen to see the particular program and I have not seen a transcript or a video of it. Regarding the messages that were given groups of asylum seekers about where they might go to be processed, I think Mr Farmer-or maybe it was Mr Killesteyn-told you that the messages given to groups of people were contained in briefing materials, or scripts I think he described them as. Senator FAULKNER-He used the terminology `scripts'. You use whatever terminology you are comfortable with. Ms Halton-Let us use his terminology, Senator, then we will know what we are talking about. Senator FAULKNER-So that we are clear, he was using scripts basically as material that went before the IDC and was agreed at the level of the IDC. Ms Halton-Certainly, there were a series of scripts prepared in relation to the information that will be used by all of the agencies. You have got to remember that on Christmas Island we CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 907 had representatives of many of the agencies which are in the IDC. It was important to ensure that all of the officials who were employed in this process had a common basis on which to operate: that they understood where we were intending, for example, to house the asylum seekers on Christmas Island, to let them know that there were a number of accommodation options and that they had the same information on which they would operate. My understanding of all those scripts-and I cannot say that I remember every single one of them, but certainly we saw them-was that they did not mislead people about where they were going. They were carefully written in terms of the information that it provided them, but I would have to go back and look at the particular script to which you refer to reacquaint myself with its precise content. Senator FAULKNER-I do not refer to a particular script, Ms Halton. First of all, I have not seen them and, secondly, I am told by officials from the department of immigration that in rela- tion to-their terminology-`scripts' it applies to only eight out of the 12 numbered SIEVs. So that leaves four SIEVs-I think SIEVs 5, 7, 11 and 12-in a somewhat different category, which we might come to. But all I am really asking of you is whether you can satisfy this com- mittee that at no stage was a decision taken at the IDC meeting-and I think it is reasonable to ask you as you chair the IDC meetings whereas the department of immigration are represented at the meeting-that would have the effect of misleading asylum seekers, and/or those on board the SIEVs, in terms of scripts or information provided to them, about where they were being taken. Ms Halton-I do not recall such a decision. I do recall a discussion explaining to the asylum seekers that they would be processed by Australian staff, they would be processed in a camp, and they would be processed consistent with the way DIMIA officers always process staff. But, no, I do not recall a decision- Senator FAULKNER-My question specifically goes to whether asylum seekers were misled or not about destination. Ms Halton-Not that I am aware of. Senator FAULKNER-But if had happened, you surely would be aware of it, wouldn't you? Ms Halton-I cannot say that. Senator FAULKNER-I am just worried about the qualification, not that you are aware of it. Ms Halton-I suppose the point I am making is that I was not there. I was not a witness to the events. What was actually said at the time, I do not know. But I do know, and my memory is, that we did not make a particular decision that they would be misled. Senator FAULKNER-Fair enough. I know that you were not on board a naval vessel. I appreciate that, so I am only asking you in terms of your role as the chairman of the IDC and wanting to be assured that, at the IDC-and I am hoping that you are to able to say this to me without qualification-no decision was taken about asylum seekers, or those on board the SIEVs, being misled about the ultimate destination of the SIEV. CERTAIN MARITIME INCIDENT CMI 908 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I recall no such decision. Senator FAULKNER-What about decisions about information about the purpose of their journey under Australian control-as opposed to destination purpose-what the journey was about? Ms Halton-Again, I would have to go back and refresh my memory, but I think Mr Killesteyn told you that asylum seekers were told that their claims could not be processed until they presented themselves for processing in a facility which the government was minded to set up and that, when they did that, their claims would be processed. I have exactly the same memory. Senator FAULKNER-So you could say to me that, as far as issues of destination, issues of the purpose of a journey of any SIEV under Australian control, and issues relating to the processing of asylum seekers' claims are concerned, I could be absolutely satisfied that no decision was taken at the IDC to provide information to those on board the SIEVs that in any way would be misleading to them? Ms Halton-That was false? No. There was no such decision that I am aware of. Senator FAULKNER-One thing that struck me as Mr Killesteyn and Mr Farmer were describing the way the IDC worked-and you can comment on this-was that the IDC was getting into real micromanagement on some of these issues. Take, for example, the question of medical treatment-whether medical treatment was to be granted or denied. Those sorts of decisions were being discussed, according to evidence we have heard, at the IDC and were also, in individual cases, being determined by the minister. To what extent, in relation to issues relating to those on board the numbered SIEVs, 1 to 12, did the task force get into micromanagement? Ms Halton-The task force did not get into micromanaging issues around medical treatment. The reality is that there were personnel on the ground-that is probably a bad term; at sea-in a number of cases who were medically qualified. It was always the case that we deferred to the medical judgment of the staff concerned. At the end of the day there was nobody around that table who was medically qualified. The evidence you have heard from others in respect of decisions taken by ministers, I cannot comment on, because I am not necessarily privy to those decisions. But in terms of the IDC I do not recall any decision in relation to whether or not a particular individual or group of individuals should or should not receive medical treatment. Senator FAULKNER-So was medical treatment discussed, even in the broad, at the IDC? Ms Halton-Yes, it was. Senator FAULKNER-Could you give me the background to that. Ms Halton-I could give you the background. The issue was individuals who presented with any obvious or, in some cases, not obvious medical conditions. I am aware that naval medical personnel actually checked groups as they arrived and, as I have said to you, what we did was always to defer. In fact, the question about whether someone should be treated, evacuated or CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 909 whatever might be the appropriate response was deferred to the medical judgment of the people on the ground. It was not something we would assert ourselves in. Senator FAULKNER-So it does come to the IDC, but the IDC does not make decisions about it? Ms Halton-No. Please do not take my words somewhere they were not going. In most of those cases, we were not consulted about that; it was left operationally to those on the ground. Sometimes we were told about it afterwards, but there was not a process of deferring to the group on whether or not someone should be treated. Senator FAULKNER-Was medical treatment on board the SIEVs finally a decision for government or was it a decision for serving Defence personnel on the naval ships that were intercepting the SIEVs? Ms Halton-The latter. Senator FAULKNER-Are you aware of how or why some of these decisions were made by Minister Ruddock, as officials from his department have just told us about two hours ago? Ms Halton-I did not hear the evidence of those officials. I do not know to which particular cases they refer, so it is a little hard for me to comment. You have asked me about treatment of individuals on vessels at sea by naval personnel. As I have said, my understanding is that a decision whether or not to treat someone was a matter for the medical personnel there at the time. Senator FAULKNER-It seems to be in stark contrast to what was being told just a short time ago about these individual cases actually being discussed at the task force and also about decisions being taken by the minister for immigration. I understand the point you make about the minister for immigration. I appreciate that and I put that aside. I am just concentrating on the task force. Ms Halton-Sure, and perhaps, Senator, you can assist me by telling me what they told you. I was not privy to that evidence, so it is hard for me to comment on the specifics of it. Senator FAULKNER-I hope that the thrust of my questioning is reasonably clear to you. I am just trying to understand in more detail to what extent the task force got down to talking about individual cases. I am using the area of medical treatment as a good example because it is something that was canvassed at this committee a short time ago. It does not much matter what the other witnesses say, because they certainly indicated that there was a role for the minister in individual cases. My interest is what the role of the task force was, and that is why I think it is fair to ask you that. Ms Halton-As I have said, the issue of medical treatment at sea, as far as my memory goes, was always a matter for naval personnel. CERTAIN MARITIME INCIDENT CMI 910 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Can you give me some examples of individual decisions that might have been made by the task force in relation to the interface between Defence and the SIEVs? What sorts of decisions were being taken at the IDC and were the responsibility of the IDC? Ms Halton-I suppose I alluded to this earlier. I think that to say `the IDC took decisions' is a bit of a misstatement. The IDC enabled people to come together to consider and discuss a range of issues. I said in my opening statement that it did not assert itself in the line command- for example, in the Defence Force-let alone in departments. There were some decisions, which were properly the decisions of individual departments, that individual departments took in conjunction with their ministers-but often bringing to bear the advice and views of people from across the service would inform them in providing that advice. So I am struggling to come up with an example of where the IDC took a decision. It had no power to take decisions. Decisions were taken by ministers or where individual departments had delegated authority in respect of those delegations. Senator FAULKNER-The task force did not have any terms of reference, did it? Ms Halton-No, it did not. Senator FAULKNER-So what did it do? Let us just go back a couple of steps. What did it actually do? Ms Halton-It discussed issues as they arose and it discussed the handling of those. It provided an opportunity-and I said this in my opening remarks-for information exchange so all of the agencies that were working on this issue had the opportunity to hear from all of the others precisely what issues were currently emerging. So, if we take that earlier question, it was important, for example, for Customs officers, for the Federal Police and for Immigration officers to all understand exactly what was intended in particular respects so that their officers on the ground could be similarly briefed and be working from the same basis. As you know, it is the classic conundrum of whole-of-government exercises that individual departments do not always get the information that other departments have, and this was a mechanism to ensure that those departments were all privy to the same information. Senator FAULKNER-Would you say, then, that it had any decision-making role at all? Ms Halton-As you know, the group prepared briefing papers and option papers in particular areas, so you are already aware that there was one provided on the evening of 7 October. That was advice from the task force in respect of a number of issues that were current at that time. What the paper did-and I think that paper actually demonstrates it quite well-was reflect the views of all of the agencies in respect of a series of issues. In some cases it reflected an accord about issues and in some cases it reflected a difference of view, which again you would expect-agencies come from different perspectives. It was important that in this particular case the Prime Minister understand that the agencies sometimes had a slightly different perspective on those issues. Senator FAULKNER-Did it, for example, get into the level of looking at the extent to which force might be used with those on board the SIEV by defence personnel? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 911 Ms Halton-Not that I recall. Senator FAULKNER-You would know if that were the case, though. Ms Halton-I would think so. Senator FAULKNER-Again, an Immigration official indicated that, in the broad, that matter was discussed at the task force. Ms Halton-This is where we make a distinction between `considered' and information. I do not recall any particular discussion about whether we thought force should or should not be used. The Navy, and indeed the forces more broadly, have a process, as I understand it, of agreeing on what basis particular operations will be conducted. At one point or another I do recall we were briefed on the basis on which operations would be conducted. That briefing would have contained, at least in the broad, some description of that issue, but to say that this group was either germane to any decision on that matter or influenced it I think is not right. Senator FAULKNER-Who provided that briefing to the task force? Ms Halton-Issues around operational guidelines are properly a matter between the Defence Force-I suspect the Chief of the Defence Force, but this is not my area of expertise- Senator FAULKNER-He was not there, so we know it was not him. Ms Halton-Whomever. Someone in the Defence Force would have advised the Minister for Defence and had some sort of operational guidelines agreed to. Senator FAULKNER-Who provided the briefing to the task force on this? Ms Halton-It would have been whomever came from Strategic Command, most likely Air Vice Marshal Titheridge. Senator FAULKNER-In this instance, do you recall who provided a briefing to the task force on the use of force in relation to defence operations within Operation Relex? Ms Halton-No, I do not. Senator FAULKNER-You do not recall who might have provided that briefing. Do you recall any detail of the briefing? Ms Halton-My memory is that, whilst the issue was raised, there was not any detail. I have an impression of the notion of reasonableness, but beyond that I do not believe there was any detail provided. My memory might be infallible in this area, but that is what I recall. Senator FAULKNER-We are all infallible. None of us lives in the Vatican. Ms Halton-I am pleased to hear it. CERTAIN MARITIME INCIDENT CMI 912 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-Infallible? Senator FAULKNER-What did I say? Did I say `infallible'? Ms Halton-I said that we are not infallible. Senator FAULKNER-If I did not say it, I meant to say that we are all fallible. Ms Halton-I think we know what we are talking about. Senator FAULKNER-Apart from Senator Brandis, we are all fallible. Senator BRANDIS-I am probably almost as fallible as you are! Senator FAULKNER-That is one thing we have a unity ticket on then; that is good. Ms Halton-I am sure everyone in the room is on the same ticket, Senator. Senator FAULKNER-But, when talking about the use of force, what about types of weapons? Was that discussed at all? Ms Halton-I do not recall any discussion about any weapons. Senator FAULKNER-What about the use of capsicum spray, for example? Ms Halton-I do not recall any discussion about capsicum spray. Senator FAULKNER-If you do not recall it, I think we can be confident that there was no such discussion, can we? Ms Halton-I do not want to give you a catagorical, Senator, because my memory may be fallible. I do not recall any such discussion. Senator FAULKNER-In relation to the scripts, they were nevertheless for eight SIEVs-1 to 4, 6 and 8, 9 and 10. They were discussed in detail at the IDC, weren't they? Ms Halton-I do not have that list in front of me and, again, my memory is that a number of scripts in relation to vessels where people were landed were considered. I cannot tell you categorically whether they were all considered in detail, and we have actually got someone going back to have a look. However, as a general principle, a script in relation to a group that was landed would probably have been dealt with, yes. Senator FAULKNER-What about a script in relation to those who were not landed? Ms Halton-I have asked somebody to go back and check this while we are having this dis- cussion. I do not recall ever seeing a script in relation to anything other than the groups we have CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 913 just discussed. Again, my memory might be fallible-we have to find another word-but I do not recall any such scripts. Senator FAULKNER-I think we know what we mean by fallible. Ms Halton-Yes, we do. Senator FAULKNER-I might progress that with you after the dinner adjournment if someone could check that. Ms Halton-Someone has gone to look. Senator FAULKNER-I would be interested to understand more detail about that and I am happy to progress that then. Ms Halton-Certainly. Senator FAULKNER-What we are doing here is talking about a distinction that is properly drawn by Department of Immigration and Multicultural and Indigenous Affairs officials who talk about scripts in relation to eight of the 12 SIEVs and drawing a distinction between SIEVs numbered 5, 7, 11 and 12 and the other eight. Ms Halton-The other four. Senator FAULKNER-I am still struggling to understand how it worked for all of them and, in particular, how it worked for the ones that were, as you say, in a different category. I am happy to progress that at a later stage. How does the task force work in relation to its interface with the Department of the Prime Minister and Cabinet? You are a senior official of the Department of the Prime Minister and Cabinet-you are the deputy secretary of that department-and you are also chairman of the task force. How do you link in departmentally? Ms Halton-Essentially, the department provided some of the servicing to this and other groups. Other departments sometimes serviced various parts of this process. We made a distinction-and I made a distinction-inside the department between the activity of the task force and the activity of the department. The department and I, in my role as executive coordinator, had a role in briefing, advising and the normal things that go with that kind of role. The task force was the bringing together of the collected advice of those various departments. For example, there would have been occasions when the task force in toto would have considered a particular issue and would have come to a view about that particular issue, and that did not in any way fetter any of the members of that group from individually advising their minister as to their individual view. Senator FAULKNER-Sure, but let us assume that there was some action to be taken by the Department of the Prime Minister and Cabinet-and this is hypothetical but I think it is reasonable because this would no doubt have happened on very many occasions-where you required, as a result of a task force discussion, follow-through from PM&C. I assume that would have happened on many occasions, wouldn't it? CERTAIN MARITIME INCIDENT CMI 914 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Except, of course, that Prime Minister and Cabinet is a coordinating agency and, as such, it did not have a day-to-day role in the administration or the putting into effect of the government's policy. Senator FAULKNER-So that did not happen; that was not an issue for you. Fair enough, if it was not. I am trying to understand whether there were issues that needed to be progressed at your then department level, the Department of the Prime Minister and Cabinet, through the bureaucracy of PM&C. Ms Halton-Not that I can recall. Again, I do not want to be categorical in case there is some particular instance, but right at this second I cannot recall. Senator FAULKNER-I do not know of any instance. I was just interested in knowing how, if it were the case, you would manage that. So that was not an issue that you had to worry about? Ms Halton-Not particularly. But it did not separate our separate responsibility to give the Prime Minister advice intermittently on immigration or other particular issues. Senator FAULKNER-I appreciate that. You say that you reported to the Prime Minister's office on matters discussed at the task force as well. Ms Halton-Yes. Senator FAULKNER-Do you report to anyone within the Department of the Prime Minister and Cabinet? Ms Halton-I think, as you know, Senator, I reported on a regular basis to Mr Moore-Wilton in terms of progress. Senator FAULKNER-So you report to Mr Moore-Wilton and you report to the Prime Minister's office. Ms Halton-Yes. Senator FAULKNER-Who else, if anyone, do you report to? Ms Halton-Nobody. Senator FAULKNER-That is it, as far as the task force is concerned? Ms Halton-That is right. Senator FAULKNER-It is limited to those two points of contact? Ms Halton-Yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 915 Senator FAULKNER-That is a reporting-out mechanism. Ms Halton-Yes. Senator FAULKNER-What about incoming messages? Ms Halton-Incoming? Can you be a bit more specific? Senator FAULKNER-You report outcomes to Mr Moore-Wilton and the PMO. Ms Halton-Sure. Senator FAULKNER-What about input you take to the task force? Is it only your personal views, opinions and reflections that govern your activities as the chair or do you have the benefit of broader advice when you go to the table as chair? I think we have dealt with what you do with information that arises as a result of task force activities. I am interested in what happens before that on those occasions where you might have some input to take to the task force, if there are any such occasions. Ms Halton-I am trying to recall such an incident that might fit this category. The nature of discussing the handling of a particular group or whatever I suppose was to an extent iterative. Can I recall being sent to the task force with a particular remit on something? I would have to say I am struggling to think of one, if that is what you are asking me. Senator FAULKNER-Not a particular remit. But prior to the meetings did you have discussions with anyone, be it in the bureaucracy, be it in the Prime Minister's office or elsewhere, and go to the task force meetings armed with the benefit of that advice? Ms Halton-Let me give you a particular example, and it goes back to the statement that I made at the outset: I do not recall having, on anything like a regular basis, any pre-meeting discussions. I do recall-I said this in my opening statement-for example, that on the afternoon of 6 October I was advised that SIEV4 had been spotted and I informed-as I think I said was my habit-Mr Moore-Wilton and Mr Jordana of this. Because the advice was that the passengers were wearing life jackets, we agreed that there should be a meeting to consider handling options. So, to the extent that there was a collected view that we should convene a meeting, yes, but whether I was then asked for a particular course to be followed I cannot recall it. There was the odd occasion on which, for example, the Prime Minister would ask for task force advice on a particular issue before taking a decision: would the task force please convene to ensure that the range of perspectives from departments across the service were brought to bear in a particular area and would that then consolidated advice be provided to him before he considered a particular decision. Senator FAULKNER-The development of advice is a bit beyond just assimilating the con- siderations of departments, isn't it? Ms Halton-That is true. That does not go, though, to the task force taking decisions per se. But when the task force was asked for advice it was provided. CERTAIN MARITIME INCIDENT CMI 916 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-I want to conclude this line of questioning about issues that were raised as a result of recent publicity. First of all, can I ask you this: was the issue of whether there be a requirement that any of the suspected illegal entry vessels not be permitted to enter Australian waters but be returned to Indonesia discussed at any stage at the task force? Ms Halton-You are talking about the active return to Indonesia? Senator FAULKNER-Yes. I am talking about a requirement or a suggestion that the SIEVs were to be returned to Indonesia. I am asking if that matter was discussed at any time at the task force. Ms Halton-The return of vessels to Indonesia was discussed in the task force. Senator FAULKNER-Can you give the committee some broader context to that discussion, please. Ms Halton-I think this might have been one of the areas where we were asked for advice- whether it was possible and under what circumstances. My memory is that that issue was discussed and advice was prepared, and that advice was then forwarded to others for consideration. Senator FAULKNER-The request for that advice came from where? Ms Halton-I genuinely cannot recall on this one. Senator FAULKNER-Would Ms Edwards's or Ms Bryant's-or whoever the relevant notetaker was-notes be able to provide that information for us? Ms Halton-Not that I have seen. There was a discussion on the issue on 11 October, from my memory. Senator FAULKNER-This is the question about the return of SIEVs to Indonesia? Ms Halton-Correct. Senator FAULKNER-So that occurred on 11 October? Ms Halton-Correct. Senator FAULKNER-You are absolutely clear, aren't you, that this is a matter on which you-the task force-were asked to provide advice? Ms Halton-That is my memory, yes. Senator FAULKNER-I am a little surprised, if you can recall that, that you cannot recall who asked you to provide the advice. It seems there is a bit of a gap in logic there. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 917 Ms Halton-It is now many months since. I recall that we had the discussion in response to something. I suspect that was a request for advice. As I think others have told you, this was an incredibly busy period when we had things going on. Quite where that request came from I just do not recall. Senator FAULKNER-You are requested to provide advice on the issue. That you can admit. Ms Halton-Yes. Senator FAULKNER-The task force did discuss it on 11 October. Ms Halton-Yes, that is right. Senator FAULKNER-Do you finalise a view on 11 October? Ms Halton-There was a draft of a paper prepared. My memory is that that draft was fairly complete, but I think it was probably not the final view on the issue. Senator FAULKNER-Do you know where the advice goes? The task force having finalised its advice, who is that provided to? Ms Halton-To the Secretaries Committee on National Security. Senator FAULKNER-Do you know when that goes before the Secretaries Committee on National Security? I appreciate that you may not know. Ms Halton-From memory, it is 12 October. Senator FAULKNER-In a nutshell, are you able to very briefly describe what the import of that advice is on this issue about whether the SIEVs would be permitted to enter Australian waters and whether they were to be returned to Indonesia? Ms Halton-The conversation we were just having, Senator, was about the return, not the `permitted to enter Australian waters', so we should be clear about- Senator FAULKNER-I had asked about both earlier, but I appreciate that we have concentrated on the second of them. Ms Halton-We have. My memory is that the advice that was given was that it was-subject to a range of caveats, obviously, about seaworthiness and a series of other issues-possible to return vessels under a number of circumstances, and that the meeting, as I recall it, agreed that this could be done. Senator FAULKNER-By this stage, of course, the caretaker conventions apply, don't they, for the election countdown? CERTAIN MARITIME INCIDENT CMI 918 SENATE-Select Tuesday, 16 April 2002 Ms Halton-That is correct. Senator FAULKNER-Did you have any sensitivities about how this was handled bureaucratically and administratively, given that circumstance? Ms Halton-I cannot speak for others, but certainly in relation to a number of issues that I had discussions about over this period there was an active discussion about caretaker conventions and being confident that we were operating consistently with the caretaker conventions, and that, where there were particular issues that should be properly discussed with others in the opposition in respect of those decisions, those issues were raised. Senator FAULKNER-With whom? Ms Halton-With, for example, the Prime Minister's office. In fact, as I recall, it was discussed in the meeting on the odd occasion. Senator FAULKNER-So you do not know who requests that the committee provide advice on this, but do you know when the request comes? This is on the question of the return of SIEVs. Ms Halton-Again, Senator, I would be wrong to be categorical, because my memory does not enable me to be categorical, but I would say that it would be mid that week. Senator FAULKNER-So it was some time earlier in that week. It would have to be earlier. Ms Halton-Yes, exactly. Clearly the request predated the actual consideration of the issue. Senator FAULKNER-Yes. Ms Halton-How far it predated it I cannot be categorical about, but it would not have been-I do not believe-any more than one or two days prior to the actual consideration of the issue. Senator FAULKNER-Would you be able to take that issue on notice? I do not know if this can be established from your records or not, but I think-given the sensitivity of the issue, firstly, and given that the discussion is occurring actually while the caretaker provisions or conventions apply, secondly-it would be absolutely incredible if we could not establish from where this request comes and when it comes. So I wonder if you would mind taking that on notice. Ms Halton-I would be happy to do that, as I said. It will be a question of relying on people's memories. So I will undertake to consult with others and see whether their memories are better than mine. Senator FAULKNER-But, given the circumstances, I would be very surprised if there is not a written record of that and, frankly, I would be amazed if that were the case. I take your CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 919 word for it that you would have to rely on people's memories. So it goes to-is it described as the Secretaries Committee on National Security? Ms Halton-SCONS. Senator FAULKNER-The acronym is SCONS. We have always got to use the right acronym. It goes to SCONS. Does the IDC have a role subsequent to decision making at SCONS? Ms Halton-Not that I can recall. Senator FAULKNER-Pumpkin! Ms Halton-In respect of this issue? Senator FAULKNER-Yes. Ms Halton-Not that I can recall. I would have to go back and again look at the documents. Senator FAULKNER-It goes to the secretaries committee and that committee make the decisions to see it put in place. Is that how it works? Ms Halton-No, the decision on whether or not vessels would in principle be returned was taken not by the bureaucracy, as I recall it. Senator FAULKNER-So it is taken by government? Ms Halton-That is correct. Senator FAULKNER-So in this case it is taken by the Prime Minister? Ms Halton-That is my understanding. Senator FAULKNER-Does this decision go direct from the task force to the Prime Minister via the secretaries committee? Ms Halton-I think it is important to understand that the secretaries committee, again from memory, had a slightly different view in respect of a couple of elements of the advice provided by the task force and it would have been the secretaries committee who advised on this particular issue. Senator FAULKNER-They advise the Prime Minister? Ms Halton-Yes. Senator FAULKNER-The decision is made by the Prime Minister? CERTAIN MARITIME INCIDENT CMI 920 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Yes. Senator FAULKNER-Once the decision is made by the Prime Minister, either in this specific case or- CHAIR-They must be the `cream puff committee'. Senator FAULKNER-I missed that. CHAIR-I said it must be the `cream puff committee' as opposed to SCONS. Senator FAULKNER-That humour was lost on me, Senator Cook. CHAIR-I know-and it should never have been engaged in. Senator FAULKNER- One thing that we are grappling with on this committee, Ms Halton is, once a decision like that is made by the Prime Minister, to understand how such a government decision is communicated to those naval vessels in the Indian Ocean. I do not understand that yet, so I have been waiting for you to be here to explain it to me. Can you help? Ms Halton-I am sorry I am going to disappoint you because at the end of the day there was not communication from the task force to the Navy on this issue. Senator FAULKNER-But how do you understand it works? The task force makes a recommendation-and you are indicating that in some areas the secretaries committee expresses a different view-and that ends up on the desk of the Prime Minister. That is how it goes? Ms Halton-As I understand it. Senator FAULKNER-As you understand it. You are in a much better position than I am to understand it, I can tell you. Ms Halton-Sometimes I am not so sure about that. Senator FAULKNER-I doubt that very much, Ms Halton. The Prime Minister makes a decision. How do you understand Defence acts upon those decisions? How does this get through the chain of command? Ms Halton-My understanding is that Defence sought approval from the Minister for De- fence in relation to all the elements of its operations. My understanding in this particular case- and this is extremely imperfect because I do not understand the inner workings of the defence department or the relevant arms of the military-is that they were told, and I do not know by whom, that there was a decision to proceed with this course. Understanding, as you will, that the Chief of the Defence Force was-and is-a member of SCONS- Senator FAULKNER-Yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 921 Ms Halton-So he is completely privy to and familiar with the advice. And that is translated through the Defence hierarchy into action. As I have already said, we never inserted ourselves in the military chain of command, so I cannot tell you how that translated itself into action. Senator FAULKNER-That is a blanket statement. Brigadier Silverstone and others seemed to be under the very strong misapprehension that the task force does not insert itself in the chain of command but is absolutely crucial in terms of communicating the view of government on a range of issues that are important in Operation Relex. Ms Halton-Senator, I did not hear the testimony of either of those officers, so it is hard for me to comment, but I am quite clear in my own mind that we were not issuing instructions to the military. We did not, right throughout this period, issue instructions to the military. Senator FAULKNER-You, for example, have never had any communication with Brigadier Silverstone, have you? Ms Halton-No. I wouldn't know him if I tripped over him. Senator FAULKNER-No, but you do know, of course, Air Vice Marshal Titheridge. Ms Halton-Correct-who is the head of Strategic Command. Senator FAULKNER-Who is the head of Strategic Command. Ms Halton-Absolutely-who is not in the operational chain, I think. Senator FAULKNER-Not in the chain of command, as it is defined for the purposes of this committee, to the extent that that is useful, relevant and helpful, that is right. Is Air Vice Marshal Titheridge a conduit back to the ADF, as far as the ADF reflecting views of the task force is concerned? I am using those words deliberately. I am not using `government'; I am using `task force'. Ms Halton-Certainly. I can only reflect on what I know, and what I know is that Air Vice Marshal Titheridge would, in my expectation, have been telling people elsewhere in the Defence hierarchy, however defined, as to what issues were being discussed and/or considered. As I have already said, one of the key functions of the group was to ensure information exchange, so if Air Vice Marshal Titheridge came to the meetings and then did not go back and reflect the conversation and/or discussions that were occurring I guess I would have been disappointed, because that was the point of having that shared information and that forum-to ensure that people did understand each other's perspective. In terms of the task force saying, `You may do this, you may not do this, you must do this,' as I said in my opening statement we did not insert ourselves in the chain of command, and in fact the chain of command on a number of occasions was reinforced to us as being from the Chief of Defence Force to the minister concerned. So his authority was the authority that enabled- Senator FAULKNER-Who reinforced that with you? CERTAIN MARITIME INCIDENT CMI 922 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I suppose, Senator, I'm a Luddite when it comes to the defence forces. I have now worked out what some of the pips on the shoulders mean, but in my working experience I have not had a lot to do with the military, so there was probably a small element every so often of Air Vice Marshal Titheridge finding it necessary to explain to a bunch of civilians who did not necessarily have much to do with the military sometimes how some of these things worked. Senator FAULKNER-I am glad you got something out of him because I am damn sure I did not achieve very much when I asked him- Ms Halton-I didn't actually see that, Senator, so I can't comment. Senator FAULKNER-No. There was not a lot he recollected, I have got to say, but anyway. So on the specific issue about the returning of SIEVs to Indonesia you can say to me that no precise instructions were given; merely advice to the secretaries committee and the- Ms Halton-Sorry, can we just be clear about whom we are talking about here? Senator FAULKNER-We are talking about the advice that was requested, although we do not know from whom, by your task force on the question of the return of vessels-SIEVs-to Indonesia. Ms Halton-Yes. Senator FAULKNER-We know that you provide that advice to the secretaries committee on security. Ms Halton-That is right. Senator FAULKNER-Do you also provide it to the Prime Minister's office? Ms Halton-No. Senator FAULKNER-It is just to the secretaries committee? Ms Halton-Yes. Senator FAULKNER-We know that. In terms of the final decisions, we have a fair idea of what occurs. But was the task force made aware of the precise, final instructions that were given-in other words, the Prime Minister's final decision as it comes back via the secretaries committee? Ms Halton-My memory is that we were apprised of the fact that there had been agreement that in suitable cases Defence would be pursuing this course of action. I do not know that we ever had anything more specific than that. Senator FAULKNER-Who apprised you of that? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 923 Ms Halton-Again, I would be unclear, Senator. I would suspect it was the secretary, but I do not know categorically. Senator FAULKNER-I would be interested to understand how that communication occurs and who actually communicates it to you. Would you mind taking that on notice? Ms Halton-I will take it away and I will think about it. Whether I can be more specific, I do not know. Senator FAULKNER-Someone else might be able to assist us there. I know you are not an official of Prime Minister and Cabinet now, but you were the deputy secretary and it is really in that context that we are speaking to you. Ms Halton-I understand. Senator FAULKNER-Did your task force in its recommendation that goes to the secretaries committee on the issue of SIEVs returning to Indonesia place any caveats on that? I think `seaworthiness' was one that you might have mentioned. Ms Halton-I will have to go back and review the paper. I have not got it here. Senator FAULKNER-In relation to seaworthiness, could I ask you to look at the question of whether medical needs would be attended to, or otherwise? Ms Halton-Can I say that, in respect of medical needs, the comments I made earlier still obtain and, at the end of the day, I do not recall an expectation other than medical assistance would be provided. So this was not actually done on an exception basis; it was done the other way round. I will see if I can find this piece of paper and- Senator FAULKNER-I am just interested in the caveats-whether food and water and the like might be provided. I am interested in caveats. Ms Halton-Okay. I should be quite clear about this. There was always, throughout this process, an expectation by everyone who was involved at an official level that individuals at sea who presented in one of these vessels would be afforded all appropriate humanitarian assistance: food, water, medical assistance and, in some cases, clothing. There was never any expectation that this was on an exception basis. So the basis on which we operated was always in a context of humanitarian assistance being provided, and I do not recall an instant where that issue was debated as being unnecessary or was in any sense questioned. My clear understanding throughout this process was that people were afforded necessary medical assistance. They were provided with food; they were provided with appropriate care and protection. Senator FAULKNER-Your advice on that matter on notice would be helpful. As I said be- fore, I did not want to get too bogged down in this; it is just that these are matters that have been in the public arena in the last 24 hours. Could I ask you to take a step or two back in time to the events that precede the establishment of the People Smuggling Task Force. You at that time are actively involved in the people-smuggling issue in the broad. This is pre the establishment of the People Smuggling Task Force. CERTAIN MARITIME INCIDENT CMI 924 SENATE-Select Tuesday, 16 April 2002 Ms Halton-It was pre the end of October. The People Smuggling Task Force was established on 27 August, so it is prior to that period that you are asking about? Senator FAULKNER-Yes. Could you very briefly explain to the committee what your involvement in the people-smuggling/asylum seeker issue was prior to 27 September. Ms Halton-Certainly. Senator, you understand well, I know, that one of the roles of Prime Minister and Cabinet is to perform a kind of coordinating function across government. We have just been talking about that. It is to shadow, effectively, every part of government policy in operation. The part of Prime Minister and Cabinet for which I was responsible had immigration as one of its issues. So we had a general watching brief over that issue. In late 1999 there was established-and I think you might already have been apprised of this-something called the Unauthorised Arrivals Task Force. We could probably have acronym salad here if we kept going, but it followed something called the Coastal Surveillance Task Force. What it did, in a similar way to the Coastal Surveillance Task Force but probably at a more operational level, was consider all of the information about unauthorised arrivals, consider current policy and look at a range of issues; ultimately, it provided advice and a report that resulted in an allocation in the 2000-01 budget in respect of particular initiatives. So it was your classic IDC basically: come up with a range of options, come up with a report, which will be considered in the budget process, and allocations will be made in a number of areas. From memory, that task force reported in February 2000 and then effectively went into abeyance. It did not have an ongoing role, and much like a lot of the other work of Prime Minister and Cabinet, as issues emerge, the role in that department can increase and the role will abate once a particular issue is dealt with. So that group ceased operations in February 2000. When this particular issue emerged, the People Smuggling Task Force was established. Essentially, it was founded on that earlier model. So it has antecedents in the earlier Unauthorised Arrivals Task Force, which itself owed its existence to the Coastal Surveillance Task Force. Senator FAULKNER-But by, say, the early part of last year this whole question was taking up a fair amount of your time, wasn't it, as the Deputy Secretary of PM&C? Ms Halton-The early part of last year? Senator FAULKNER-Yes. I was thinking in the first half of 2001. Ms Halton-No. Senator FAULKNER-It was taking up just a small amount of your time? Ms Halton-A very small amount of my time. Senator FAULKNER-It was obviously dominating your workload by August-September. Ms Halton-It started by 26 August. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 925 Senator FAULKNER-You were the chair of the Unauthorised Arrivals Task Force, weren't you? Ms Halton-But it was not meeting. It had stopped meeting at the beginning of 2000. Its work was, effectively, complete. Senator FAULKNER-Yes, that is right: February 2000 was its last report. After February 2000 until 26 August you were not particularly engaged in those issues? Ms Halton-No. Senator FAULKNER-So when did this responsibility basically land on your desk? Ms Halton-On 26 August. Senator FAULKNER-Literally on that day? Ms Halton-Yes, literally. Senator FAULKNER-How did that happen? Did Mr Moore-Wilton contact you? Ms Halton-Perhaps I may be wrong with the dates, but if 26 August is the Monday-let me just backtrack for a moment. Some of my officers were involved in discussion on a range of issues. You asked me about my engagement. My engagement was relatively minor. I was busy doing other things. My officers were engaged, as you would expect them to be, on a regular basis with the department. I had had leave the week prior to that week, and I had a phone call when I was still out of town on the Sunday to apprise me of the events over that weekend-so this was before my return-and, on the Monday, my memory is that the task force was effectively established via a cabinet decision. So the issue was discussed under the line and the task force came into being basically early that afternoon. Senator FAULKNER-Do we know what day of the week the 26th was? Ms Halton-If that was the Monday- Senator FAULKNER-I am just trying to check. I am just trying to get it absolutely clear, because it is not clear to me. Ms Halton-It might have been the 27th, actually. I have a feeling that the 27th might have been- Senator FAULKNER-I think the first meeting was on the Sunday. Ms Halton-No, there was no meeting on the Sunday. Senator FAULKNER-So the 26th was the first meeting? CERTAIN MARITIME INCIDENT CMI 926 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Whichever was the Monday was the first meeting. Senator JACINTA COLLINS-The 27th. Ms Halton-The 27th? Senator JACINTA COLLINS-Yes. Ms Halton-That was the first meeting. Senator FAULKNER-So it first met on 26 August. That was a Monday was it? Ms Halton-Monday was the 26th, was it? Senator JACINTA COLLINS-No, the 27th was a Monday. Ms Halton-In that case, that was the first meeting. Senator FAULKNER-I do not think that is right. According to the information that was tabled, it first met on 26 August 2001. Ms Halton-Tabled by whom? Senator FAULKNER-Tabled by the Department of the Prime Minister and Cabinet. The People Smuggling Task Force commenced, first met, on 26 August 2001. Ms Halton-The note I have is that they will be correcting that. It was the Monday. Senator FAULKNER-So that document is wrong, is it? Ms Halton-I understand that there was an error in the document. Senator FAULKNER-So it first meets on Monday, 27 August? Ms Halton-That is correct. Senator FAULKNER-I assume you were the chair of that meeting. Ms Halton-I was. Senator FAULKNER-This was, of course, in relation to the Tampa basically. That is right, isn't it? Ms Halton-Yes. Senator FAULKNER-So that was on Monday, 27 August. Were you asked by Mr Moore- Wilton to chair the task force? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 927 Ms Halton-My memory is that there was a cabinet decision asking for some advice, and I was then asked to convene the meeting. Senator FAULKNER-By whom? Ms Halton-My memory is that it was Mr Moore-Wilton. Senator FAULKNER-And the first meeting was on the 27th? Ms Halton-Correct. Senator FAULKNER-I am glad they are correcting their advice. There were no terms of reference for the task force-which we have talked about before. Basically, what were your riding instructions? Ms Halton-I suppose it was-and this goes back to my opening statement-to have a process of information exchange and discussion about a range of issues that required multiple agencies to work together and then, as necessary, give advice, be it logistics or what have you, in relation to whatever issue might have been confronting us at the time. Senator FAULKNER-Its nature is unusual, isn't it, in the sense that it is a high-level task force or a high-level IDC? Ms Halton-I do not know that it is particularly unusual. If I look at the work that I did as part of the welfare reform exercise leading up to the last budget, the level of people who turned up to that was secretary and deputy secretaries. I would not have characterised it as being unusual. What I would say is that it was meant to-and indeed did-include people who were able to advise on particular issues and who were able then in their own agency to communicate those issues to their minister or what have you. Senator FAULKNER-It is unusual, surely, because it has such an extraordinary amount of direct contact with ministers? Ms Halton-The task force itself never had any direct contact with ministers, as far as I am aware. Senator FAULKNER-Members of the task force did. It seemed to be a characteristic, from what I have seen. Ms Halton-I go back to my earlier point. If you look at the people who were involved, in their normal jobs they would have had a responsibility to work directly to ministers. In character I do not think this was any different from a number of other IDCs I have chaired. Senator FAULKNER-So what role does the IDC have from its first meeting on Monday, the 27th? I am interested in the background in relation to the Tampa. Can you briefly explain? It is established on 27 August and the key event in relation to its work is the Tampa. I think we CERTAIN MARITIME INCIDENT CMI 928 SENATE-Select Tuesday, 16 April 2002 understand that. Could you briefly explain what the role of the task force was over those intense two or three days? Ms Halton-My memory is that it comprised people from, as you know, relevant agencies who were able to synthesise advice on, for example, international obligations, international law and maritime issues such as safety of life at sea. It enabled all those agencies to collectively consider the circumstances in which we found ourselves which, I think we would all acknowledge, were fairly unusual. It enabled that group to readily exchange views and information about (1) the circumstances and (2) what advice should be given or could be considered by ministers. Senator FAULKNER-Sure, but what was happening over those couple of days? You said it was a very intense period-I accept that completely. What was the role of the task force immediately after its establishment in relation to the Tampa issue? Ms Halton-As we did later, it was the preparation of, for example, briefing papers, which would then be considered by, in this particular case, relevant ministers. So a compilation of information and advice. Senator FAULKNER-What about the drafting of the legislation? Ms Halton-The legislation was not drafted until very much later, depending on which legislation you are talking about. But legislation, given that in a number of areas it had impacts on a range of agencies, was never pored over forensically from beginning to end by that group. Certainly key individuals in that group would have been involved in legislation. The group did not author legislation, if that is your particular question. Senator FAULKNER-No, I am not suggesting it did. I just wondered what the interface was and when that started. Ms Halton-Again, it is legislation in an area which impacts on Customs, Coastwatch and Defence. There are a number of agencies that are impacted on by the legislation. Those agencies sometimes used that forum, if there were particular issues that needed discussion. Senator FAULKNER-On what date was the Tampa boarded? Ms Halton-I have not brought a chronology on that issue. I did not realise that would be a particular focus. I do not recall. Senator FAULKNER-Was it on the Wednesday? Ms Halton-I do not recall, Senator. Senator FAULKNER-Did the IDC have any involvement with the first border protection bill? Ms Halton-No, it did not. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 929 Senator FAULKNER-Did you? Ms Halton-No. Senator FAULKNER-You did not have any- Ms Halton-No, other than to see it when it was in the public domain. Senator FAULKNER-Fair enough. Did the character of the task force change at all from these early stages? Obviously the Tampa was on the agenda when you started and then you had the series of suspected illegal entry vessels. Did the character or nature of the work of the task force change and evolve from the Tampa through to Operation Relex? Ms Halton-Not particularly. I would not have said it changed. It would be a self-evident fact that at the beginning of that process there was a series of officials who had never met each other. I can recall the first meeting of this group-which had a cast of thousands-where, for example, Air Vice Marshal Titheridge had taken over from Angus Houston and Strategic Command. The military faces and the particular roles had changed. If you looked at the people who came to the Unauthorised Arrivals Task Force-which last met in 2000, as we have already discussed-some of the faces had changed and there was a series of people who had not worked with each other before. It is fair to say that, by the end of the process, not surprisingly, people had spent a lot of time with each other, so there was a greater familiarity with working styles, their roles and all the rest of it. But did the essential essence of the group change? I would not have said that it did. Senator FAULKNER-What role do you or the task force have in terms of the preparation for Operation Relex? Ms Halton-My understanding is that Operation Relex was an initiative proposed by the de- fence forces, considered by the national security committee and agreed by it. Senator FAULKNER-Does the People Smuggling Task Force have any involvement as events move along and in the planning stages of Operation Relex? Ms Halton-No. Senator FAULKNER-None at all? Ms Halton-No. Senator FAULKNER-You personally do not have any involvement there at all? Ms Halton-No. My memory is that it was an initiative of the Chief of the Defence Force working with his colleagues. I did not know that. To my memory, it was never discussed in the task force. CERTAIN MARITIME INCIDENT CMI 930 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Did the international division of PM&C get involved in the work of the task force at all? Ms Halton-Intermittently. Senator FAULKNER-How did that work? Ms Halton-If there was a particular issue in relation to, for example, working with the Indonesian government on vessels and return of vessels, they would have been party to those discussions. Senator FAULKNER-What about the reporting arrangements that were set up on 6 October-there has been some public debate about them, which you may or may not have caught up with-which effectively circumvent the normal Defence chain of command? Were you or the IDC involved in that at all? Ms Halton-I was not aware of them. Senator FAULKNER-When did you become aware of those? Ms Halton-When I read them in one of the reports. I think it might have been the Bryant or Powell report, but I do not know which. Senator FAULKNER-Did you have any involvement at all-when I say `you' here, I mean either IDC or PM&C to your knowledge-in the restrictive Defence instruction on public comment in the ADF? Was that something that had been drawn to your attention prior to reading it in either the Powell or Bryant report? Ms Halton-My understanding, right at the beginning of this process, was that there was a general instruction that the only people who were to make any comment in relation to any of these issues were either ministers or ministers' offices. As to how that instruction was trans- lated, or whether it superseded or replicated existing instructions in Defence or in the military, or indeed elsewhere in service, I am not aware. Certainly, I am aware that there was a general decision that that was where comment should come from. Senator FAULKNER-Where was that general decision made? Ms Halton-You will find this unsatisfactory, but again I do not recall. It was just one of the features of this beginning of process. Senator FAULKNER-Was it discussed at the task force? Ms Halton-Yes. It was discussed at the task force on a number of occasions. Senator FAULKNER-Can you explain the background of it? Ms Halton-I am sorry, Senator, you have to be a bit more specific. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 931 Senator FAULKNER-What was the reason for this change of approach in terms of the need for a new Defence instruction? Ms Halton-I reiterate what I just said: I did not know that that was a particular Defence instruction or indeed what standing instructions in Defence were in relation to any public comment. Senator FAULKNER-In the broad, are you saying to us that, because it was discussed at the task force, you did understand that a new arrangement was going to be put in place that basically meant that public comment on ADF operations would be made from the minister's office as opposed to what had applied before? Ms Halton-No. Senator, you have just introduced a range of additional material there. I want to be quite clear about this. Senator FAULKNER-Good. Ms Halton-What was said in the task force was a replication of what we understood to be the case, which was that there was a general instruction that the only commentary on any of these issues was to be from ministers or ministers' offices. I was not aware of any particular Defence instruction or indeed change to Defence instruction. It was never raised in a way that I can recall it that this represented a `change'-your word, not mine-about activity in the Defence Force; it was simply that there was a general instruction commentary. So it was put in the affirmative, not in the negative. Comment on this issue was to come from ministers and ministers' offices, full stop. Senator FAULKNER-Just so I am clear: from where does that emanate? Ms Halton-I suspect it emanated from the Prime Minister's office at the beginning of the Tampa process. But, again, I would not want to be categorical about that. This was not an instruction of the bureaucracy, if you see what I am saying. This is not something that the bureaucracy raised or suggested or what have you; this was an instruction. Senator FAULKNER-I accept that completely. But it gets into a bureaucratic process. I accept what you say: it does not emanate from the bureaucracy; it comes from the Prime Minister's office, or it might come from Minister Reith's office. Sure. How does it get into your domain in the IDC? Ms Halton-Because I am told it. Senator FAULKNER-Yes, I know that, and all I am asking you is who tells you. Ms Halton-And what I am saying is it was in August; I do not actually recall. If you asked me to say where I think likely, I think likely the Prime Minister's office, but I cannot be categorical about that. Senator FAULKNER-But it is discussed on more than one occasion at the IDC. CERTAIN MARITIME INCIDENT CMI 932 SENATE-Select Tuesday, 16 April 2002 Ms Halton-The issue was discussed when, for example, there were things that happened which were not consistent with what we had understood as being a general instruction. It came up in that context. So, for example, when Commander Banks gave an interview- Senator FAULKNER-You mean his Channel 10 interview in this case? Ms Halton-Yes, it may well have been Channel 10, but whichever one it was. Senator FAULKNER-Did members of the task force accept that Operation Relex basically was not business as usual as far as the bureaucracy was concerned? Ms Halton-The bureaucracy was not running Operation Relex. I think here it is only possible to talk about `I', because I do not recall that any particular issues about Operation Relex being usual or unusual were actually canvassed. Operation Relex was a particular initiative that had been agreed. I do not actually recall any conversation about it being usual or unusual. Senator FAULKNER-For example, in Rear Admiral Bonser's and Mr Drury's submission to the Bryant report this point is made: Admiral Bonser said that RELEX was not business as usual and we shouldn't be reporting as if it was business as usual. Ms Halton-If I can perhaps make a comment, Rear Admiral Bonser is a rear admiral; he understands naval business intimately, and he would have a perception about what is usual and what is unusual. I have already made the observation that I am a relative newcomer to matters military and particularly to naval. So I do not recall discussions in the task force about it being usual or otherwise and I do not recall having any personal view on that issue. You have to have a frame of reference, I think. So his comments are perfectly understandable given his naval frame of reference. Senator FAULKNER-Yes, but what about Mr Drury's note for file that is attached to his submission- Ms Halton-Which says what? Senator FAULKNER-It says this-and this is dated 9 October 2001: PM&C made strong statements about the rules involving press briefings and reiterated its bans in these occurring other than by Ministers or Ministerial staff. Ms Halton-I think my earlier comments pertain. Senator FAULKNER-But did you make those? Ms Halton-I think I actually just said a second ago that one of the occasions on which that issue came up was in response to Commander Banks having given an interview-and, if I am right, the date that you have just referred to would be either the day or the day after that particular interview. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 933 Senator FAULKNER-I think you are right about that, because it goes on to say, `Criticism was levelled at the Captain of Adelaide for his communications with Channel 10.' It continues, `This issue then extended to the need for more timely information being passed to members of the senior level reference group-in particular, to Jane Halton of PM&C.' Ms Halton-The date you are talking about is the 9th, which is the date that, as I said in my opening statement, I asked Defence to go and check the detail in relation to this incident. As I think I said in my opening statement, I recall a radio report on either the evening of the 8th or the morning of the 9th which suggested that children had been thrown in the water as a consequence of shots fired at the vessel. So that would be the same meeting. Senator JACINTA COLLINS-You referred to your opening statement and there is one issue I wanted to clarify with you on that. In the last paragraph on the page where you refer to queries about events on 9 and 10 October, you say: `The facts as we understood them were advised in the evening meeting of the PST.' Which evening was that? Ms Halton-Where are you exactly? Senator JACINTA COLLINS-It is under the headline `Queries about events 9-10 October', in the second-last paragraph. Ms Halton-The evening of the 10th. Senator JACINTA COLLINS-The one in which the previous witness said that he had no recollection of those sorts of discussions? Ms Halton-Which previous witness? Senator JACINTA COLLINS-Mr Killesteyn. Ms Halton-I do not think that Mr Killesteyn was in that meeting. I will check. Senator JACINTA COLLINS-If you could, that would be good. I had previously asked Mr Killesteyn to comment on Admiral Bonser's statement to the effect that he took a note of such a conversation and Mr Killesteyn said that he had been overseas at the time and did not recall any such thing happening but that he was in the meeting on the 10th. Ms Halton-I heard part of that evidence and, to be quite frank, that discussion sounds to me like the discussion of the 9th. Senator JACINTA COLLINS-But you just said to me a moment ago, `The facts as we understood them were advised in the evening meeting of the PST,' on the 10th. Ms Halton-Yes. You have to understand that there were two discussions: there was a discussion on the 9th and there was a discussion on the 10th. The discussion on the 9th-and it goes to Senator Faulkner's questions in relation to John Drury's notes of that meeting-shows that there was a discussion in respect of the need to be updated on a more regular basis. As I CERTAIN MARITIME INCIDENT CMI 934 SENATE-Select Tuesday, 16 April 2002 said, my memory is that that was the point at which I said to Defence, `Go check this,' and I asked my officials to go out and pursue the detail. At the meeting on the 10th, we then recapped- Senator JACINTA COLLINS-That there had been concerns and this is where our investigations had taken us. Ms Halton-that these were the facts as we knew them, and there was a piece of paper that went to those issues. In fact, the point about that is that we had ascertained that the shots were not at the same time as the `people in the water' issue. Senator JACINTA COLLINS-But are you suggesting then that Bonser's comments relate to the meeting of the 9th and not the 10th? Ms Halton-So you are saying that he is saying that these comments were on the 10th? Senator JACINTA COLLINS-That appears to be the case, yes. Ms Halton-Killesteyn was there on the 10th and thereafter for a series of meetings? Senator JACINTA COLLINS-No, on the 11th, according to Bonser. Ms Halton-I have no memory of that. Given that the 11th was the meeting when we actu- ally discussed the return of vessels to Indonesia, I do not recall any such discussion on the 11th. Senator JACINTA COLLINS-Is it possible to actually have the notes that were taken of these meetings? Ms Halton-Which notes? Senator JACINTA COLLINS-We have had references through various earlier pieces of evidence to notes that were taken by Ms Edwards. I am asking you whether it would be possible for us to see the full notes of each of the meetings-say, from 6 October through to 11 or 12 October. Ms Halton-As they are in the possession of Prime Minister and Cabinet and I am no longer in that department, I do not know that that is a question I am in a position to answer. Senator JACINTA COLLINS-Okay. Ms Halton-Can I just tell you that Mark Bonser was in the meeting-I will just make sure my eyes are not playing up-on the 9th. So Mark Bonser was in the meetings of the 9th, 10th and 11th, according to my records. Senator JACINTA COLLINS-His statement is: CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 935 Additionally, at an interdepartmental meeting of the UBA group, held on 11 October 2001, I made note of an exchange between representatives from PM&C and DIMA along the lines that one or the other were apparently "concerned about (the) veracity (of reports) of children going into (the) water". That would be consistent with your comments for the 9th and 10th but not for the 11th. Ms Halton-No, not for the 11th. And essentially, as I said in my opening statement, this issue was no longer an issue as at the 10th. The 10th was the last time we dealt with it because we were confident, based on what we had been told, by that point that the issue was at rest. Senator JACINTA COLLINS-And we need to wait until we talk to PM&C about whether the committee can actually see the notations of those discussions? Ms Halton-Yes. Senator FAULKNER-Who scheduled the Sunday, 7 October meeting-or how was that scheduled? Ms Halton-How was it convened? Senator FAULKNER-Yes. Ms Halton-I think I said earlier on in evidence that, following the notification of the identi- fication of the vessel on the afternoon of the 6th, and following my advice to Mr Moore-Wilton and Mr Jordana that a vessel had been spotted and it was unusual because all of the passengers appeared to be wearing life jackets, we agreed that I would convene a meeting. There was a se- ries of telephone calls that evening to a number of people. I enlisted Ms Edwards's assistance in ringing some of the members. We asked people to come to a meeting at nine o'clock on Sunday morning. Senator FAULKNER-But was the advice from Mr Moore-Wilton and Mr Jordana the only advice that was available to you prior to the convening on the 7th? Ms Halton-I guess it depends on what you mean by `advice'. Senator FAULKNER-I am just going from your opening statement. Ms Halton-Yes, and I said that we agreed that I would convene it. Senator FAULKNER-Just go back a couple of paragraphs there: The first advice I received of what was to become known as the SIEV4 was on the afternoon of Saturday 6 October. Ms Halton-That is right. Senator FAULKNER-You received that advice and you rang Mr Moore-Wilton and Mr Jordana. CERTAIN MARITIME INCIDENT CMI 936 SENATE-Select Tuesday, 16 April 2002 Ms Halton-That is right. Senator FAULKNER-I am going back a step before that-I may not have made myself clear-to the `advice'. I am just wondering from where that advice came-the first advice on what was to become known as SIEV4. Ms Halton-It comes on the telephone. I get a call from Defence to say another vessel has been spotted. My memory is that I very shortly thereafter got a call from Coastwatch. There was a bit of a `who was there first' in this. What you often found is that the information appeared in the information chain very quickly from a number of sources. Senator FAULKNER-I am just asking you about that sentence. I appreciate when you received that advice-which was Saturday afternoon on the 6th. I am just wondering who it was from. Ms Halton-Defence is my memory, in the first instance. Senator FAULKNER-And then Coastwatch? Ms Halton-I think so, yes. Senator FAULKNER-Do you recall who in Defence passed this through to you? Ms Halton-I genuinely can't. My phone records show that I had a series of conversations with Air Vice Marshal Titheridge that afternoon, so I would suspect it was him but I would not wish to be categorical on that. Senator FAULKNER-Would that be standard operating procedure with the air vice marshal? Ms Halton-Yes. Senator FAULKNER-He would know about this and would give you a call? Ms Halton-Yes. Senator FAULKNER-So the need was established, was it? I appreciate that when you say `we agreed', `we' means Mr Moore-Wilton, Mr Jordana and you, I gather. Is that right? Ms Halton-To be absolutely precise, I seem to recall saying that, as this group looked a bit different from the earlier groups, the visible appearance of life jackets on all of the people on the vessel suggested that this was going to be slightly different. As you already know, there was a range of logistical issues about Christmas Island, including accommodation, security staff and a series of other things-and I have said that in my opening statement as well-that suggested that getting departments together to work on the issue was desirable. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 937 CHAIR-It could have suggested that they were just on a leaky boat, couldn't it? That is a good reason to wear a life jacket. Ms Halton-We had not seen that in any other groups. CHAIR-It is all relative to the vessel, though, isn't it? I do not want to divert from Senator Faulkner, but there is this emphasis about life jackets and people choosing to make one interpretation. The most sensible seagoing interpretation is the boat was unsafe and people put on life jackets in case it was about to sink. Ms Halton-Maybe. At the end of the day, all I can reflect to you is the thinking in people's minds at the time and that is what I am doing. Senator FAULKNER-One of the issues of contention in this, of course, is in relation to the meeting on the morning of 7 October. There are different views about where advice about children being thrown overboard came from, as you are well aware. Ms Halton-Yes, I know that. Senator FAULKNER-So let me ask you who actually provided to the task force the first report of children being thrown overboard. Ms Halton-As I said in my statement to Ms Bryant, which I am aware you have, and as I have just said in my opening statement, I do not recall. I know very categorically where I heard it from first and that was from Air Vice Marshal Titheridge in a phone call and I have got diary notes or-sorry, you objected to the word `diary' earlier-I have notes in my notebook which record the essence of that and I do not recall whether someone else had said it first. There is no doubt in my mind, and I said this in my opening statement as well, that particularly when a senior member of the task force was not in the meeting, on receipt of a phone call from a senior member of the task force, I would have relayed that phone call almost in a verbatim sense-obviously not every single dot, comma and word. But it would be my practice that, if someone had rung me with something that was obviously germane to what was going on, I would have passed that on to others on the task force. I have to say that when Ms Bryant asked me about this my memory was that in fact the Defence Force representative had had something to say on the matter. It may well be that my memory is faulty, but I do know that I was phoned by Air Vice Marshal Titheridge and I would be absolutely confident that I would have reported that conversation to the group. Senator JACINTA COLLINS-Just on this point, Ms Halton, the suggestion in some of the material put to us is that there was a secondary source of that information-and it is hard to differentiate some of this now that we know a lot of things in retrospect- Ms Halton-Yes, exactly. Hindsight is a wonderful thing. Senator JACINTA COLLINS-If that information had not come from the Defence representative present, can you tell us any other possible source at that point in time? CERTAIN MARITIME INCIDENT CMI 938 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Often information came from Customs and Coastwatch. Coastwatch were often flying overhead of things and saw things that went on and their information sources would tell us particular things. Coastwatch sometimes had a vessel in the area when particular things were going on and they would often communicate. Senator JACINTA COLLINS-Neither of those was referring to children on this particular incident. Ms Halton-As I say, I do not recall. I did have a memory that some of this information was already in the meeting-that it was introduced by somebody else-but more than that I cannot say. Senator JACINTA COLLINS-Not necessarily the children component. Ms Halton-Again, I could not be categorical. Senator JACINTA COLLINS-I think it was Ms Edwards, or someone else, who said that they had information from Customs, but it did not refer to children, and that the children information was introduced and, it appeared, by two sources-a phone conversation to you where one recollection is you said, `Yes, we've just heard that.' My question is: if it had not come from a Defence representative, is there anyone that it possibly could have come from that you could tell us about now that would help us? Is there other information? Ms Halton-I suppose that is my point: it could have come from a number of sources. When I originally spoke to Ms Bryant on this subject-and it is interesting that other people have said that they thought it had come from somewhere else, because that is my memory, but I cannot be more categorical; certainly the conversation with Air Vice Marshal Titheridge is the thing that is prominent in my memory. Senator JACINTA COLLINS-We know that this verbal conversation went from Banks to Silverstone to Titheridge, then to you, to Smith, to Ritchie. Ms Halton-Not in a line sequence, I hope, because I have never had a conversation with Smith. Senator JACINTA COLLINS-No, it branched out then from Titheridge to you, Smith and Ritchie, but beyond that I cannot comprehend another avenue other than a Defence representative at the meeting that it could have been presented to you at that point in time. Can you comprehend- Ms Halton-Yes, because my understanding is that NORCOM has a range of agencies. Senator JACINTA COLLINS-So Silverstone may well have advised other than Titheridge his understanding of the Banks conversation? Ms Halton-I do not want to speculate, Senator, because to speculate is unhelpful. The reality is that NORCOM has a range of agencies which work with it and maybe that is a source. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 939 I had a memory that it had come from somewhere else. I cannot be more categorical than that. I do know that I was advised of the detail by Air Vice Marshal Titheridge and I have got the notes that show that. Senator JACINTA COLLINS-I am not interested in speculating; I am trying to draw together pieces of information so that they fit into a consistent picture. Ms Halton-I understand. Senator JACINTA COLLINS-And at this stage we do not have that with respect to various impressions of what occurred in that meeting. Ms Halton-I know. Senator JACINTA COLLINS-The solution may well be that it had come out of NORCOM, and maybe that is something that we should investigate as well. Ms Halton-Can I just ask whether it is possible to take a five minute break. CHAIR-Yes, it is. We were going to break at half-past. Senator FAULKNER-What time is the dinner break supposed to be? CHAIR-From 6.30 p.m. until 8 p.m. Senator FAULKNER-We could even have the dinner break earlier, if you want. Ms Halton-I only need two seconds. CHAIR-We will suspend the proceedings and just relax in our positions for a few minutes. Proceedings suspended from 6.12 p.m. to 6.16 p.m. Senator FAULKNER-Can I take you to the statement that you made to Ms Bryant on these issues that we are canvassing? At the bottom of page 1-this is in the context of you recalling media speculation on Monday, 8 October-it is stated: ... she `she' is you, of course- had told the Defence rep at the Monday or Tuesday meeting ... that they had better be certain about the veracity of the initial reports and they should do some checking. You obviously stand by that. Ms Halton-Absolutely. CERTAIN MARITIME INCIDENT CMI 940 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-A little later on in the dash point at the bottom of the page, it is stated: Ms Halton said that at no time did Defence advise the High Level Group that there was doubt about the claim of children overboard. While we had asked them to check that the statement was correct ... this issue was not pursued beyond 10 October ... because of the photos. Ms Halton-And other things. I think in my introductory statement here today I have gone into slightly more detail in relation to that issue. Senator FAULKNER-In the opening statement you say: ... at the meeting of 9 October Defence officials were asked to confirm all details of the event. I asked PM&C staff to pursue this with Defence... I specifically asked Defence to confirm all the details and to advise us accordingly. PM&C officials held a number of discussions with Strategic Command during the morning and about midday they provided the chronology which you are already familiar with. The footnote to that chronology said: "There is no indication that children were thrown overboard ..." Ms Halton-However, it may have occurred. Senator FAULKNER-I am sorry? Ms Halton-You need to finish the quote, Senator. Senator FAULKNER-You just did, I think. Would you accept that that footnote reveals that there was doubt about the original claims? Ms Halton-No, I wouldn't. I think it is important to understand the frame of reference here. The frame of reference was about clarifying detail rather than looking for proof and I think it depends on the vantage point you sit in when you read those things. With hindsight, you may well read that from a different perspective, but, as I have said in my statement, the thing that had prompted me to ask the question was the media report in relation to the shots. I can remember being in the car when I heard that radio report and thinking, `Oh, golly! That's the first I've heard of that.' I remember thinking, `Well, we'd better get all those things checked because that's an issue that doesn't, prima facie, sound very attractive.' The fact that people in the department were looking to clarify detail meant that my people were trying to sort it out. There were a number of things that came from Defence at that time. Remember the context: people were incredibly busy and some of the information from Defence had various numbers, for example, about people who had gone over the side and some of the details were contradictory. Some of it was in-what do they call it?-zulu time. It was in different time frames. We were trying to sort through when the actual shots had occurred-we discovered they had-and how that related to what we thought was the children overboard as well as others overboard. We now know that not be the case. Trying to get a consistent chronology around all of this is what was occupying people. This is I think why when I made that original statement to Ms Bryant I said that this was in an environment-a frame of CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 941 reference-in which we had never been told, it had never been alluded to and there had never been the merest suspicion in the advice we had given that there was any doubt about this. Senator FAULKNER-But that is the whole point. You say, `At no time did Defence advise there was doubt.' That footnote, I am afraid, is the advice you ask for, and you get the advice back, surely, and it not only says there is doubt but says that they are unsubstantiated by the facts. Ms Halton-As I said in my opening statement, that footnote appeared as a footnote on a fax that was sent to a junior officer in Prime Minister and Cabinet and was not accompanied by a phone call to me or to anybody else to say, `Actually, we are a bit concerned now that there is doubt here.' We were never told that there was doubt. There was never a suggestion made to me that there was doubt about this event. Can I say-and I made this comment in my opening remarks-that we in very short order were advised that there were photos. These had been released to the press, and we all know that they were published the next day. There was a video and there were witness statements. Then we went to the evening meeting and the information as we knew it was canvassed, and that was the last time we dealt with it. Senator FAULKNER-You say to Defence, `Look, you had better check the facts.' They are your words. I put them in inverted commas. Ms Halton-That is right. Exactly. Senator FAULKNER-But then the facts seem to me to be completely disregarded when they are provided. Ms Halton-I don't accept that. Senator FAULKNER-This chronology comes from a signal from HMAS Adelaide, does it not? Ms Halton-I do not know where it comes from. We were never advised where it came from. I was certainly never advised. I do not believe- Senator FAULKNER-I thought you may have been at least able to establish in the meantime that that is where it came from. Ms Halton-No. Senator FAULKNER-You haven't? Ms Halton-I have not established where that chronology came from. Senator FAULKNER-It is a primary source, and nowhere does it show or does it say that children have been thrown overboard. Senator FERGUSON-It does say that it was possible. CERTAIN MARITIME INCIDENT CMI 942 SENATE-Select Tuesday, 16 April 2002 Ms Halton-That is right. And it comes back to the frame of reference. CHAIR-I started, as did Senator Faulkner, at your statement where you said that you got no advice. That is patently not true. You got the advice by way of a footnote. Ms Halton-The department got it. I did not get it. I said I did not receive advice. Senator FAULKNER-Do we know who in the department got it? Ms Halton-A junior officer. CHAIR-Can I put this to you: you have relied on your statement to argue your position. In your statement you say- Ms Halton-I have relied on my statement to make you aware of the facts as I know them. CHAIR-I see. In your statement you say, `At all times the PST operated in a thorough and professional manner'- Ms Halton-That is right. CHAIR-`and consistent with Public Service practice and APS values.' Ms Halton-That is right. CHAIR-That is right? Ms Halton-That is right. CHAIR-You are expecting us to accept that the level of professionalism and Public Service values is that when you get advice such as this you pay no heed to it? Ms Halton-As I have said to you, officers in my group saw that footnote. They then saw it in a context where there was advice that there were photos, which they duly saw. There was a video and there were witness statements. That advice says this may have occurred, and the judgment was formed that that was the end of the matter. This was in a context in which there had been no senior-or can I say junior that I am aware of-allusion to the fact, statement of the fact, call or anything else to say that there was doubt. Senator BRANDIS-Ms Halton, could I ask in relation to the source documents whether and, if so, when, you became aware of Commander Banks's signal from the Adelaide dated 11 October. Ms Halton-Which signal would that be? I did not see any signals from Commander Banks right throughout this period. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 943 Senator BRANDIS-That is the signal in which Commander Banks says, among other things, that he had been advised by the boarding party and other witnesses on the bridge wings that some men, some boys and some children had entered the water. You had not seen that at that stage? Ms Halton-No. We did not see Defence signals through this period. Senator FAULKNER-Did you think of retracting the advice that you gave to Ms Bryant: ... at no time did Defence advise ... that there was doubt ... That is not correct. They did advise. Ms Halton-Let us be quite clear. My knowledge, when I gave this statement to Ms Bryant, did not in fact include-I have to tell you-the existence of that chronology. Senator FAULKNER-I know that. Ms Halton-I made that statement based on my understanding and my knowledge. We can have a semantic debate about a fax with a footnote, which was never then canvassed in the PST, was never referred to in any phone calls or discussions with me or other senior officers that I am aware of, about doubt. As far as I am concerned, that statement was made in absolutely good faith and, from my perspective and based on my knowledge, is accurate. I do say in that statement `advise the High Level Group'. They did not advise the high-level group. Senator JACINTA COLLINS-Ms Halton, can you explain to us the context of how this was sent to the department. Ms Halton-My understanding is that it was faxed to a junior officer in PM&C. I have already said in my opening statement that people were trying to clarify detail. They were trying to clarify the time of the shots, they were trying to clarify the number of people et cetera. I think it may well have been sent to a junior officer. As you know, the other information that came into our possession almost contemporaneously was in relation to the existence of photographs, video and the collection of witness statements. Senator FAULKNER-But you also have very high-level Defence people on the task force. Ms Halton-That is right. Senator FAULKNER-They do not tell you, do they? Ms Halton-They do not. Senator FAULKNER-Everyone seems to know except Air Vice Marshal Titheridge. Ms Halton-He or his officers did not say anything about this. CERTAIN MARITIME INCIDENT CMI 944 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-That is not right. There is actually documentation out of Strategic Command that goes to PM&C- Ms Halton-You are talking about the footnote again? Senator FAULKNER-No. There is other advice and we will get to that at a later stage. Do you question now and do you reflect on the nature of the advice coming from Air Vice Marshal Titheridge, as the senior Defence person on the task force, in these circumstances? Ms Halton-I think I said in my concluding remark in my opening statement that there was clearly information elsewhere that was not made available to the PST. The reasons for that, I cannot begin to comment or speculate on, because I do not know what they are. You made the comment earlier about the information that is now in your possession. You probably actually know more about this than I do. I have not sat here all the way through testimony you have heard and the various people's perspectives on what happened at particular times. All I can do is tell you about what I know and what I was involved in. Senator FAULKNER-So the reason the chronology is not mentioned in your witness statement to Ms Bryant is that you did not know about it at the time? Ms Halton-No, I did not. Senator FAULKNER-When did you learn about it? Ms Halton-When the inquiry was under way. Senator FAULKNER-Now that you do know about it, do you agree that the definitive statement that you make in that witness statement looks rather silly? Ms Halton-I stand by the definitive statement that I make in that witness statement. Defence did not advise the high-level group that there was doubt about the claim of children overboard, which is the direct quote from my statement. I still stand by that, because that is the case. They did not advise the high-level group. Senator FAULKNER-Here is this question of definition of the difference between Prime Minister and Cabinet and your role on the task force. At the end of the day, I do not know that people are drawing these sorts of distinctions. You earlier found it a bit hard to draw the distinction yourself. Ms Halton-I do not know that I did, Senator, but we could debate that another time. Senator FAULKNER-You were there representing Prime Minister and Cabinet, but this is a pretty nebulous sort of task force without terms of reference. For Defence or any of these groups, what is the point of contact? It is officers in Prime Minister and Cabinet, isn't it? If you want to inform the task force about something or communicate directly you go to officers in the Department of the Prime Minister and Cabinet. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 945 Ms Halton-You do not go to a junior officer in the social policy division by fax with no follow-up phone calls. Senator FAULKNER-You do go to officers in the Department of the Prime Minister and Cabinet. Ms Halton-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. That did not happen. CHAIR-I imagine there is no convenient point to adjourn in this dialogue, but we are after the hour at which we were going to adjourn. Proceedings suspended from 6.32 p.m. to 8.04 p.m. CHAIR-The committee will now resume. Ms Halton, I understand that you have some additional information that you want to bring before the committee. Ms Halton-Before the break, I was asked a series of questions in relation to how the advice from the Secretaries Committee on National Security was transmitted to the Prime Minister. That was by way of a minute from the department to the Prime Minister which basically reflected the paper and the decision of that committee. CHAIR-A minute from the Prime Minister? Ms Halton-A minute to the Prime Minister, asking for a decision. Senator Collins asked me a couple of questions which I think were motivated by something that she had said on the Four Corners report last night. As I have already said, I have not seen that. She particularly asked about whether there was concern taken for the seaworthiness of vessels and whether there was concern taken in respect of humanitarian assistance. I would like to reflect on two things. Firstly, the advice to the Prime Minister did acknowledge that not every vessel could be returned, so it was only if it was practicable. And I would like to reflect-again, this is with the process of thinking about this over the dinner break-that all of this was done in the context of the notion of safety of life at sea and our international obligations in respect of rendering assistance to people who are in distress. I do quite vividly recall a series of conversations about our obligations to not leave people who are at risk at sea. So I can say to you very confidently that not only is it my understanding that we did provide humanitarian assistance to people-we have talked about medical assistance already and we have talked about food-but also this was done in the context of ensuring that we did not place people at risk. It was done in the context of our obligations, which go beyond the black letter of the law, to ensure that people's needs were met. CHAIR-Neither of the two senators who were questioning you about that are present. Ms Halton-I know, and I am sorry about that but I did want to get it on the record. CHAIR-Your remarks are on the record and I will privately direct them to those remarks. CERTAIN MARITIME INCIDENT CMI 946 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Thank you. Senator BARTLETT-Turning to the interdepartmental committee, was the policy change to this `deter and deny access' approach developed by that committee? Ms Halton-I am sorry, but can you be quite clear about which one you mean. That is not a language I would use so I do not know what you are referring to. Senator BARTLETT-`Deter and deny' is the mission label that the Navy personnel used a lot, and the commander of the Adelaide and others were saying that. Ms Halton-You are not talking about `tow-back'? Senator BARTLETT-I am talking about the two stages, I guess. The first was post Tampa- Ms Halton-Operation Relex. Senator BARTLETT-Yes, Operation Relex, and the second one when, as I understand it, there was a specific policy decision made to look at towing boats and returning them. Ms Halton-Where it was practicable. Senator BARTLETT-Were they both policy decisions made by the IDC? Ms Halton-No, they were never decisions of the group of officials. I think, as we have already canvassed, the approach in relation to Operation Relex was that there was a proposal from the head of the Defence Force, is my memory, which was considered by the Secretaries National Security Committee and, obviously, any rules of engagement would have been signed off by the minister. I think we have canvassed in some detail what is referred to as `tow-back' and that, while there was some advice provided that was founded on legal and foreign policy advice, there was certainly no decision about that by any group of officials. That was clearly a decision taken by government. Senator BARTLETT-So, in effect, was the IDC's role basically to monitor the operation of that policy? Ms Halton-We have talked a lot already about the role of the IDC in the exchange of information and certainly, as you know, there was a series of calls about particular aspects of operations. In respect of your first question, no, the IDC did not take decisions about those issues. Senator BARTLETT-So would it have been involved in consultations with, or receiving feedback from, the Indonesian side of things, involved in responses from the Indonesian government to Australian government policy? Would those sorts of issues have been considered by the IDC? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 947 Ms Halton-Do you mean were we briefed by foreign affairs officials? Senator BARTLETT-Yes. Ms Halton-Yes. Senator BARTLETT-Was that more of a monitoring role on those sorts of developments, rather than any- Ms Halton-Steering or directing role? Senator BARTLETT-Yes. Ms Halton-Yes, that is right. In fact, Rick Smith, who is our ambassador in Indonesia, actually attended the task force on-from memory-one occasion, as we had various other people who were germane to the operation attend on various occasions. You would know, Senator, that there is often a great advantage in meeting the people who were working sometimes on the other end of a telephone. My memory is that Rick Smith was in town and he came to the task force, and certainly I saw him in that time. Senator BARTLETT-And you would have received reports when it was assessed that vessels were leaving Indonesia; the committee would have been apprised of those? Ms Halton-Not necessarily. Can I say that I think there is something of a misapprehension abroad about the state of our knowledge about vessels leaving. I am aware of one particular allegation that has been made in relation to our state of knowledge about a vessel leaving. It is fair to say that sometimes we had a vague knowledge that maybe somewhere something had left. But to say that we had categorical knowledge of individual vessels leaving a particular place at a particular time in a categorical way I think is to misstate the truth. Senator BARTLETT-And the IDC would not necessarily have been informed of that in every case anyway. Ms Halton-If there was a reasonable view that something might be leaving from somewhere, we would probably have been advised of that. I have certainly read some things in the newspapers in the last little while about our state of knowledge of particular vessels which, I have to say to you, from where I sat, is absolutely not correct. Senator BARTLETT-I presume you are referring to the vessel that sank. Ms Halton-That is correct. Senator BARTLETT-I want to briefly pursue the `children overboard' incident and situation. There has been a lot of focus on what was or was not provided to the office of the Minister for Defence. I notice today that some of the DIMIA officials spoke about the immigration minister's adviser, Mr Ingram, contacting you to get updates et cetera. What was the nature of those conversations? Did he want more detail about what happened? CERTAIN MARITIME INCIDENT CMI 948 SENATE-Select Tuesday, 16 April 2002 Ms Halton-No. It was usually very brief and usually of the essence of, `Have we found another one-yes, no? If we have, is it in the public arena, or can it be?' Senator BARTLETT-Would he have rung you about trying to get more details about the specific `children overboard' allegation? Ms Halton-As my witness statement to Ms Bryant said, my memory is that at the beginning of the IDC on the morning of the 7th I think I may have actually received a call from Mr Ingram. My memory-and it is imperfect-is that the call was to say the detail of this vessel, as it existed, seemed to be in the public arena and did I know where that had come from. I should say that my knowledge at that point of where that information had come from was nonexistent. I knew there was a vessel. I was not aware that that information had been released to anybody. The general habit had been not to comment on operational details whilst operations were in train. I was a bit surprised that the detail of that vessel seemed to be in the public arena. What I said-again my memory might be imperfect-is that I did know because I had heard on the radio a report that there was a vessel but where that information had come from I did not know. Senator FAULKNER-But the intelligence reports were much more precise, were they not, than just giving you a vague idea of when the SIEVs were leaving Indonesia? Ms Halton-What we had was often a statement that a source had said that a vessel might leave. For every source that had said a vessel might leave to a vessel that actually turned up, we probably had a hit rate of one to four. The reality is that sources said that vessels might be leaving from some island. Senator FAULKNER-How do these sources come through to you in your role as chair? Ms Halton-They do not come through to me directly. As you know, DIMIA have an intelligence report-in fact, I think you have already received, as I understand it, a somewhat blacked version of one of those; I have not seen it- Senator FAULKNER-It is more black than white, I can assure you. Ms Halton-I guess I am not surprised. Essentially, that intelligence report would be something that, as appropriate, would be discussed in the group as part of the agency updates I talked about-going around the table at the beginning of every meeting and saying, `What do you know and what needs to be discussed?' When one of the agencies thought that they had a source that said a vessel might be coming, they would relay that. Senator FAULKNER-So it is not only DIMIA, there are other agencies as well. Ms Halton-Yes, but my point remains that, in terms of accuracy, for every time someone thought a vessel might be about to leave, we probably got one in four. Don't hold me to the one in four, but you understand the point I am making. Senator FAULKNER-But the task force is looking at this issue closely-at vessels that are leaving Indonesia-and planning for them? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 949 Ms Halton-That is right, in terms of: if we have all those vessels arrive, do we have a capacity to accommodate them? That was an issue that we discussed. Senator FAULKNER-It was more than just accommodating them, wasn't it? Ms Halton-What do you mean? Senator FAULKNER-A lot of this is happening in the period of the election campaign. There was a political imperative. Ms Halton-I think you need to be really clear about this. Senator Cook took objection to a comment I made in my opening remarks. I think we need to be really clear that there was a stated government policy that the people in this task force were working on the implementation of in terms of the information exchanged in that group and individually within agencies. They had been given clear riding instructions about the policy. That policy was set before the election was called and that is what was undertaken in that group. Bill Farmer made a comment in his remarks on that issue. I got here a little early and you finished with him a little late so I did see an exchange between a number of you and Mr Farmer on that issue. I think that the task force at all times operated in an operational way. It did not operate in any sense in a way which went to a change in policy or to behaving improperly. Senator FAULKNER-I am interested in your characterisation of operational. What do you mean by operational? Ms Halton-I mean that there was a stated policy which was to be implemented and the policy parameters, with the exception of the change that we have talked about, which came from advice from the Secretaries Committee on National Security- Senator FAULKNER-This is the one change that you and I were talking about before the break in relation to being relation to boats being returned to Indonesia- Ms Halton-That is right. Essentially the government's policy was stated and known prior to the election and the basis on which that group operated was consistent with that stated and known position. Senator FAULKNER-Was that the only policy change for the entire life of Relex? Ms Halton-Do not ask me to be categorical because we were proved to be- Senator FAULKNER-It is an important point. You are making that distinction and I appreciate that. That is an important policy change. Ms Halton-I cannot remember any other particular policy change. That one we have talked about in terms of the process around that, but in terms of what that group was doing which was hearing advice if there were one, two, three or however many might be alluded to to be on the way-and as I said, probably one in four arrived-and hearing the logistical issues about managing Christmas Island, talking about how to provide food, security and blankets. They CERTAIN MARITIME INCIDENT CMI 950 SENATE-Select Tuesday, 16 April 2002 were the sorts of briefings that departments would provide in the meeting about where they were up to on the logistics. It did not strike me that there was anything in that that represented a change from the position prior to the election being called. Senator FAULKNER-So if that is the only significant policy change that occurs through the life of Relex, what about from the establishment of the task force to the commencement of Relex when Relex became operational on 3 September 2001? Were there any significant policy changes in that comparatively short period of a week? Ms Halton-Not that I am aware of. I am aware that there were rules of engagement, as you would expect, in that period. I am not aware that they were changed. Senator FAULKNER-Did the rules of engagement go to the task force? Ms Halton-My memory is that we were probably drop-copied a copy. We were not commentators on it. Senator FAULKNER-They were not matters for the task force? Ms Halton-No, absolutely not. Senator FAULKNER-They were not discussed at the task force? Ms Halton-No, absolutely not. Again, this goes back to my earlier comment in my opening statement about not inserting ourselves in the line of command. The rules of engagement are an issue between the Minister for Defence and the Defence Force. I am quite confident that we saw them. Senator FAULKNER-Did the return of suspected illegal entry vessels back to Indonesia have any impact on the rules of engagement? Ms Halton-I assumed that they changed the rules of engagement. Senator FAULKNER-Is there a basis for that assumption? I am not saying it is a silly one; it does not make sense, but- CHAIR-John, Andrew was completing- Senator FAULKNER-I know. I fear, Mr Chairman, that I have taken Senator Bartlett's line of questioning away from him, so I will be very disciplined after this question- CHAIR-Okay. Senator FAULKNER-After all, I could make the point that he was breaking into my questioning, but I would not be so churlish as to suggest that! CHAIR-I know. And it is too early in the night for those displays. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 951 Senator FAULKNER-I am never churlish! Ms Halton-Perhaps I can say, Senator, that in the advice that went from the department to the Prime Minister, which was gathered from the SCONS meeting, there was an acknowledgment that the rules of engagement would need to change. Senator BARTLETT-I have nearly finished in any case. Of the conversations you may have had with Mr Ingram, as far as you are aware only the one specifically went to the `children overboard' allegation? Ms Halton-No. I think we should be quite clear. I do not recall having any conversation with him about children overboard. Senator BARTLETT-So the frequent contact with him was more on that daily `What has been happening, anything I need to know?' sort of thing. Ms Halton-Yes, basically. I would say they probably lasted all of 30 seconds, if that. Senator BARTLETT-You do not recall any specific time when he contacted you asking for clarification or further detail on that? Ms Halton-Definitely not. Senator BARTLETT-Thank you. That is it. Senator JACINTA COLLINS-I apologise for not being here when we first started back. I ask Ms Halton whether she could go over what she indicated was related to a question I had asked which, from what I can gather, was one televised on the Four Corners report-is that right? Ms Halton-I think you were concerned, Senator, that there had-I am paraphrasing and I am going to get this wrong- Senator JACINTA COLLINS-But this is previous evidence- Ms Halton-Yes. Senator JACINTA COLLINS-Not tonight's. Ms Halton-No. You had asked earlier-now I am confused. You had asked earlier about- CHAIR-I think it was the seaworthiness- Ms Halton-That is right. I think it was in reference to something on Four Corners but, as I said when I started this evening, I had not seen Four Corners so I did not know quite what the reference was to. I understood your concern to be that we had not provided all humanitarian assistance possible to people, and I thought you were concerned that there might have been a CERTAIN MARITIME INCIDENT CMI 952 SENATE-Select Tuesday, 16 April 2002 danger that we had been towing vessels that were unseaworthy. What I said was, `I have gone back and confirmed the basis of the advice that went from the Secretaries Committee on National Security to the Prime Minister.' That went via a minute from the Department of the Prime Minister and Cabinet to the Prime Minister. It acknowledged that a vessel could not go back if this was not practicable. This was in the context of a broader discussion that had been had, on multiple occasions, about the notion of safety of life at sea and the obligations that obtain on any mariner in relation to safety of life at sea. So the point that I was making was that, firstly, a vessel did have to be seaworthy. I did not go on to say, but now that you are here I will say it: my understanding is quite clearly that a judgment about whether a vessel was seaworthy was absolutely in the province of the relevant naval commander. They had to make a judgment about whether that vessel was seaworthy, and they similarly could not leave a vessel if they had any concern that it was not seaworthy. They could not leave a vessel that they did not feel was able to return to land, or in any sense endangered the life of the people on that vessel. Senator JACINTA COLLINS-I am sorry. The only time I recall raising the towing incident tonight was when Senator Faulkner had asked what you needed a decision from the IDC on, and I think it was a quip of mine which said `towing', for instance, in reference to the logs- Ms Halton-Maybe I misunderstood your intent, but I gathered that you were concerned that people's humanitarian needs had not been met and that there might have been a danger that- and I think you asked about whether or not we had taken account of seaworthiness in the advice that had been provided-so what I was trying to do was- Senator JACINTA COLLINS-That was Senator Faulkner. Ms Halton-I am sorry if I have confused the two of you. You are pretty hard to confuse. Senator JACINTA COLLINS-Okay. You go, John. CHAIR-I think we are sorted with that-as far as we can be-so let us get on with it. Senator Faulkner. Senator FAULKNER-Before the break, Ms Halton, we were speaking about the footnote to the chronology, I recall, and I raised with you my concerns about what I think is an inconsistency between the witness statement you made for the Bryant report and your opening statement tonight. You said in your witness statement: ... at no time did Defence advise the High Level Group that there was doubt about the claim of children overboard. I think that is the issue we were discussing prior to the break. But you also said earlier this afternoon that it was you who was asked your own then department, Prime Minister and Cabinet, to pursue this with Defence and that you specifically asked Defence `to confirm all the details and to advise us accordingly'. Is the point here not that Defence did advise PM&C, albeit via the chronology and the footnote that we have spoken of, but that advice-as a result of the PM&C and Defence tick-tacking on the issue-Defence material, is provided to PM&C? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 953 Ms Halton-No-one is denying that that chronology was received in Prime Minister and Cabinet. You know that; I now know that. I think what is relevant here-and I made this comment in my opening remarks-is that the officers were trying to sieve through what was sometimes contradictory information that had come from Defence, contradictions about the numbers of people at various times. I have talked about zulu time. I am not a Defence guru, so I get the terms wrong, but you understand the point I am making-that they had been trying to sort through these facts. At the same time, or shortly thereafter in any event or almost contemporaneously, as that footnote-and it was only a footnote and it was not accompanied, as I have already told you, by a red light flashing and a warning bell problem type alert from anyone that I am aware of in Defence-we are told about the photos which duly appear on the front page of I do not know how many newspapers the next morning- CHAIR-Just about all of them. Ms Halton-Yes, that would be my memory. It was either Minister Reith or Air Vice Marshal Titheridge-I think it was Titheridge; I would not want to be completely categorical on that- Senator FAULKNER-The usual suspects. Ms Halton-We were told that there was a video. It was acknowledged it was grainy, but we were told there was a video, and we were told there were witness statements. At the end of the day, with reasonableness and the balance and the weight of evidence, as I said in my opening remarks, we then took the facts as we knew them to the evening meeting. No-one then came back to us and said, `You're wrong!' And, as I have said, that was the last time, to my knowledge, that it was discussed. As you probably know-and it is hard to get a perspective on it at this point-there was a huge amount of other things going on. I had explicitly asked the question about the substance of this because I heard that commentary about the shots across the bow, and when you hear something and you think, `Oh, I didn't know that, that sounds a bit worrying,' we went looking, we went asking, and then the balance of evidence swung back the other way because of things I have just talked about. We put the information in front of the evening meeting-that was fine-and then it moved on. Senator JACINTA COLLINS-Who was the junior official who received the chronology? Ms Halton-He is an ASO6. CHAIR-Has he been promoted? Ms Halton-No, he has actually left the Commonwealth service. Senator JACINTA COLLINS-But was he part of your investigation to find out what had happened? Ms Halton-It was not my investigation. Senator JACINTA COLLINS-You asked- CERTAIN MARITIME INCIDENT CMI 954 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I am sorry, I was not clear which investigation you were talking about. He was one of the officers in the Social Policy Division who was working- Senator FAULKNER-Let's not beat around the bush. Who was the officer, Ms Halton? Ms Halton-An officer called Matt Healey. Senator FAULKNER-Thank you. In your opening statement you said: PM&C officials held a number of discussions with Strategic Command staff during the morning and at about midday they provided the chronology which you are already familiar with. `You' being all the committee, and you note the footnote. This is indicative, isn't it, of the fact that there is tick-tacking between Strategic Command and the Department of the Prime Minister and Cabinet, obviously, at that stage? That is going on. You, in fact, kicked that off. You say you kicked that process off. Ms Halton-Yes. Senator FAULKNER-That was your initiative. Ms Halton-That is quite correct. Senator FAULKNER-But given that there is the footnote to the chronology, you do not follow up the outcome, do you? You are saying that Defence do not follow it up with you or Ms Edwards-that is what you said earlier today. Ms Halton-I think that is an unreasonable characterisation of the facts, Senator. The reality is that we initiated the contact with Defence. It was an own motion question. We were the ones who actually pursued them on the subject. My officers were actively chasing them. Senator FAULKNER-But you never get to know about it. Ms Halton-No, but can I explain to you how I was briefed? I was interstate on business on that particular day and I returned to the office 15 to 20 minutes before the high-level group meeting that afternoon. I was briefed that we had been pursuing Defence on the substance of the material. Senator FAULKNER-Who did that first briefing? Ms Halton-Ms Edwards. Contemporaneously with that briefing, the information about photos, videos and witness statements came about. Senator FAULKNER-But she tells you, doesn't she? This is the point, Ms Halton: Ms Edwards, whom you said Defence should have chased down, or chased you down-you said that before the- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 955 Ms Halton-What I said, Senator, was that there was no proactive bringing of that to my or my senior officers' attention, as I understand it. Senator FAULKNER-But Ms Edwards tells you directly that Strategic Command that afternoon-following receipt of the chronology-had no documentary evidence of children thrown overboard. The whole case that you put does not seem to hold water. We know, because Ms Edwards says in the witness statement to the Bryant report, and this is signed by her: Following receipt of the chronology I informed Jane Halton-I think it was late in the afternoon-that Strategic Command had no documentary evidence of children thrown overboard. Ms Halton-Senator, I suppose this goes to our understanding of where Strategic Command sat in the great firmament. Essentially, as I have already told you-and this is my point about Ms Edwards arriving to give me a brief as I arrived in the office that afternoon-we were advised contemporaneously about photos, videos and what have you. The photos then appeared in the paper. There they were, in the paper. CHAIR-You are referring to the false ones? They were misleading because they were deceptively labelled. Ms Halton-The ones that we now know were misattributed; that is correct. But we did not know that at the time. Our experience throughout this period-and I said this in my opening remarks-was that very often the cable traffic, or however you want to style this, was significantly, and sometimes days, behind events. This had been our experience right throughout this period. At the end of the day, when very senior people in close connection with what is going on explain to you that there are videos, witness statements and photos, and the photos appear, and there is a huge pressure of work, and the facts, as we understand them, are put in front of the evening meeting and no-one demurs from those facts and no-one says, `No, no; that's wrong,' and there is no doubt, you move on. Senator FAULKNER-Yes, but do you accept that you were informed late that afternoon by Ms Katrina Edwards that Strategic Command had no documentary evidence of children thrown overboard? Do you accept, as she said in her witness statement to Ms Bryant for Ms Bryant's report, that she, Ms Edwards, said that to you on that day? Ms Halton-I don't remember that. Senator FAULKNER-Were you aware that she had said that in her witness statement? Ms Halton-Yes, I am aware that she said that, and I do not recall it. But, as I said, that does not surprise me. If she did say it, it would not necessarily have caused me instant alarm for two reasons: first, I had been told there were videos, photos and witness statements and, second, our experience since Monday, 27 August-I think we have now agreed that-had been that material that goes to these things was often, as I have said, very behind the actual events. Senator BRANDIS-I suppose it is a little stronger still for you than that, in the sense that you had been relying upon verbal reports. It was on the basis of verbal reports that you arrived CERTAIN MARITIME INCIDENT CMI 956 SENATE-Select Tuesday, 16 April 2002 at whatever conclusions you arrived at. You would not necessarily have been looking for documentary evidence. Ms Halton-No. When something is moving as quickly as this, which it did right throughout this period-and I know that the comment was made in evidence earlier this afternoon by Mr Farmer-what one did was treat the information provided by senior people from each agency as being robust. Our experience right throughout this process was that it was- Senator BRANDIS-I suppose one can also get a bit tricked even by the concept of what documentary evidence is. A photograph, of which there were not any, would plainly be documentary evidence. But if one treats a statement as documentary evidence-a statement is merely an ex post facto writing down of what originally would have began as a verbal report. It does not bear any greater probative significance, indeed perhaps less since it is not contemporaneous but, as I say, ex post facto. We have to be a little careful, Senator Faulkner, in vesting the expression `documentary evidence' with a significance it perhaps does not bear. Ms Halton-I have a comment that goes to your question about documentary. At the end of the day, we had been advised that there was document evidence, and that was the photos. The photos then appeared- CHAIR-This is where you lose me, I must say. One of your staff tells you that there is doubt. You hear of documentary evidence. Surely that raises a question. You do not send for the documentary evidence. Ms Halton-It was published in the paper. CHAIR-What was published in the paper was a photo of people in the water, that is all. Ms Halton-Which was attributed as being a photo of children thrown overboard. CHAIR-It was said. But you are sitting here in charge of the peak body-the task force- sifting all this evidence. You are told by a staff member that it is not reliable, yet you choose to prefer the other advice without checking whether the statement made by your staff member has any veracity. That is what you are asking us to believe-in the context that this is an entirely professional operation. Ms Halton-That is right, and I stand by that statement. CHAIR-You cannot have it both ways. Senator FAULKNER-How can you possibly stand by that statement? The trouble is, Ms Halton- Senator BRANDIS-I raise a point of order, Mr Chairman. I respectfully suggest that it might be fair and helpful to let the witness finish her answer. Senator FAULKNER-I think it would be fair and helpful if you did not interrupt so much. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 957 Senator BRANDIS-I suggest, Mr Chairman, that the witness be invited to finish her answer. CHAIR-She has the floor. Ms Halton-I did not think I did, actually. The reality is I do not recall a statement like that by Ms Edwards. As I have said to you, had she made it, it would not necessarily have caused us instant alarm. As I have already said, completely contemporaneously 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, to use your terminology, documentary evidence-it was not put in that way, but that was the effect of it-and that comprised the photographs. The photographs were then duly published. You made the point about us sifting through all of the information here. Could I just take you back to what the role of this group was. It was not- and I have said this several times-to insert itself in the chain of command, in the military or in departments. At the end of the day, the advice that came to us-I have said very clearly-was that children were thrown overboard. I have said very clearly that we asked for clarification of detail in response to a particular issue about which we did not know-which was the shots- and that, notwithstanding whether Strategic Command did or did not say to us there was no documentary evidence-and I do not recall that-the simple reality is that people who were more intimately involved with this than Strategic Command told us there was 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. Senator BRANDIS-Ms Halton- CHAIR-Hang on, you asked me to wait and I have waited. Senator BRANDIS-I am sorry, I thought the witness had finished the answer and I wanted to ask her a question arising from that answer. CHAIR-I just had a follow-up question and I thought I would seize the call off you and you would seize the call off Senator Faulkner. Maybe we should all sit back and let Senator Faulkner- Senator BRANDIS-I have not exactly been very interventionist in the examination of this witness, Mr Chairman, now have I? CHAIR-Ms Halton, at the beginning of that long statement, you said that it would not have caused panic stations. It would have caused, though, a reasonable doubt in a reasonable officer-I would submit-that there is something here that should be examined further, wouldn't it? Ms Halton-Are you suggesting I am not a reasonable officer, Senator? CHAIR-I am putting the question to you, Ms Halton, and asking me a question in return is not an answer. CERTAIN MARITIME INCIDENT CMI 958 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-I think he is. Ms Halton-I think he is too. Senator, as I have said to you, I had already asked explicitly for positive confirmation from Defence of the facts. My officers had actively chased people from Strategic Command all day long on this subject. My officers had actively tried to reconcile sometimes contradictory information from Strategic Command, and we had had advice from people who were much closer to these events in relation to-your term-the documentary evidence. In terms of any suggestion that we harboured doubts, can I say that hindsight and retrospectivity is a truly wonderful thing and- CHAIR-Yes, and you were very busy- Ms Halton-Can I finish? CHAIR-but you were very professional. We understand both those points. Ms Halton-I think I should be allowed to finish. Senator BRANDIS-Mr Chairman, let Ms Halton finish, for heaven's sake. Ms Halton-Can I just say explicitly-and I have said this in my opening statement-that, at the end of Wednesday the 10th, we did not have a doubt about this issue. We had ascertained the facts to the best of our ability, remembering that we are not responsible for the detailed goings- on of the internal workings of the military or the defence department; we are a coordinating agency. We had put our understanding of the facts in front of that group and no-one had said, `Oops, bit of a concern here. Might not have happened. It's a bit of a worry.' It did not happen. Senator, you may say- CHAIR-The evidence is that it did happen, on two occasions. Senator BRANDIS-Mr Chairman, do you have to continue interrupting? CHAIR-Yes, I do, because- Senator BRANDIS-You cannot interrupt the witness. CHAIR-You will just behave yourself. Yes, I do have to follow up a question part-way through an answer. Senator MASON-Yes, but not when she is in the middle of the answer. CHAIR-How much longer must we wait for the same answer to be repeated ad nauseam, when there are gaps? Ms Halton, the evidence we have is that you were advised twice. So, with due respect, you cannot sit there and say that you did not know. Ms Halton-Do you say I was advised, or the department? We now get into the realm of opinion. I can tell you what I knew and what I believed to be the case, and I will continue to tell CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 959 you that from now, basically, till my dying day. What I knew was that I had been told a series of things about the facts. I asked for clarification. It was vigorously pursued. We were given, at the end of that process, confirmation in terms of video, photos and witness statements which, together with the facts-we tabled our understanding of the facts-led us to move on. Senator FAULKNER-When were you given the video? Ms Halton-We were not given the video; we were told there was a video. Senator FAULKNER-And when were you given the witness statements? Ms Halton-We were not given the witness statements. We were told- Senator FAULKNER-Yes, I know. That is the point: there does not seem to be evidentiary support to me. Where I was at is at the footnote- Senator BRANDIS-Before Senator Faulkner goes on, can I ask two follow-up questions in relation to this subject. Senator FAULKNER-No. All my questions, with respect, Senator Brandis, are also follow-up questions. It is just that it has been impossible to follow them up for the last 13 minutes because you and others have been asking questions. Senator BRANDIS-I have not been intruding, Senator Cook has. CHAIR-I have intruded a number of times, Senator Faulkner, so I plead guilty to that charge. Senator BRANDIS-I would like to ask two follow-up questions on this documentary evidence issue. Am I right in understanding you to say that you became aware of the photos at, or shortly after, the time you were given this piece of information by Ms Edwards? Senator JACINTA COLLINS-It cannot be all the fault of the information from Ms Edwards. Senator BRANDIS-She has not said that. Senator JACINTA COLLINS-She did say that. Senator BRANDIS-She said she does not remember what she was told but she accepts that she was told something. Ms Halton-Correct. Senator BRANDIS-That is the difference, Senator Collins. Ms Halton-Correct. CERTAIN MARITIME INCIDENT CMI 960 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-Given that we have heard your evidence and at least some of us have understood it, given that it is accepted that there was a conversation between you and Ms Edwards- Ms Halton-Absolutely. Senator BRANDIS-and given that you did not dispute her version of the conversation but very candidly told us that you do not remember what she told you- Ms Halton-Quite correct. Senator BRANDIS-at what point in time did that conversation happen in reference to the time at which you first became aware of the photos? Ms Halton-I have already told you that I was out of the office that day; I was interstate on business. I know because I have checked that I walked back into the building at 4.45. I also know that I commenced chairing the meeting of the group that day at five o'clock. I also know that I had had a phone call and I had made two phone calls in the intervening 15 minutes. I also had to walk from the door up to the office, and I know that Ms Edwards arrived in my office part way through the phone call. Senator BRANDIS-So does it follow that the conversation with Ms Edwards and your first awareness of the existence of the photos happened almost simultaneously? Ms Halton-I think that is absolutely right. Senator BRANDIS-And, of course, at the time you became aware of the photos you had absolutely no reason to believe that they had been misattributed. Ms Halton-That is right. Senator BRANDIS-The point I was at pains to make before is, I suppose, a matter of commonsense: the most literally graphic form of documentary evidence that you can have of an event is a photograph. So when you saw these photos that you were misled to believe were photos of the supposed child throwing incident on the SIEV4, did that relieve you entirely of any concern about the existence of documentary evidence to support that assertion? Ms Halton-To the extent that I may have had a particular concern about documentary evidence, and we have canvassed the issue about- Senator BRANDIS-Yes, quite-you correctly pulled me up, Ms Halton. Ms Halton-To the extent that I felt that was the end of the matter, because there was the categorical, visible evidence, yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 961 Senator BRANDIS-Yes. It goes like this: somebody says, `We've got concerns about whether there's documentary evidence,' and a few minutes later somebody shows you a photo and says, `Well, there it is.' Ms Halton-No. Let us be clear: I was not physically shown the photo; I was told it existed. It was in the paper the next morning. Senator BRANDIS-So you saw it in the paper. Ms Halton-I saw it in the paper. I was told it was going to be in the paper and there it was, in the paper. Senator FAULKNER-Ms Halton, how was that communication made? That was from either Air Vice Marshal Titheridge or Mr Reith, you told us before. Ms Halton-That is correct. Senator FAULKNER-Was that a telephonic communication? Ms Halton-That is correct. Senator JACINTA COLLINS-A call from Minister Reith- Senator FAULKNER-Or Air Vice Marshal Titheridge. Senator JACINTA COLLINS-or from Air Vice Marshal Titheridge? Ms Halton-I received a call from Minister Reith; I made a call to Air Vice Marshal Titheridge. Senator JACINTA COLLINS-In that intervening period between the meeting and- Ms Halton-No. I walked into the building at 4.45. I received a phone call from Minister Reith almost as soon as I walked into my office. Based on that conversation, which included a statement that there was a video, which I did not know, I then rang Air Vice Marshal Titheridge- Senator JACINTA COLLINS-Who had not seen these photos. Ms Halton-and Peter Hendy. Senator BRANDIS-Ms Halton, there is one last thing on this question of documentary evidence: the witness statements. You had not seen them at the time; we know that. Are you aware that seven of the 16 witness statements are completely silent on the question of whether there was a child thrown into the water, or indeed in the water at all. Six of the statements merely say that the maker of the statement did not see a child in the water, but do not claim that the maker of the statement saw the whole event. Two of them categorically say there was no CERTAIN MARITIME INCIDENT CMI 962 SENATE-Select Tuesday, 16 April 2002 child in the water, and one of them says that the maker of the statement believed that there was a child in the water. Were you aware that, when you analyse the statements, that is the way they come out? Ms Halton-At the time, no. But I certainly am now, based on evidence that has been introduced here. Senator BRANDIS-If you have 16 statements, of which 13 are neutral, two are one way and one is the other way, it is hardly an unequivocal proof of one proposition one way or the other, is it? CHAIR-That is a matter of opinion. Senator BRANDIS-I am asking the witness's opinion. Ms Halton-I do not think I should offer an opinion, Senator. Senator BRANDIS-All right. CHAIR-Did you ask what the witness statements contained? Ms Halton-As I have said, I do not recall this issue being discussed or raised after the 10th. CHAIR-But you said that you had the photos and you had the video- Ms Halton-No, I did not say I had the photos or the video. CHAIR-Sorry, you are right. You have corrected me accurately. But you were told there were photos, a video and witness statements. Did you ask what the witness statements said? Ms Halton-No. CHAIR-Why not? Ms Halton-Because, as far as we were concerned, the information had been established sufficiently in terms of the shots across the bow which had prompted our initial concern-my initial concern-that there was a clear gap in the time frame between people overboard and when the shots had occurred. That was quite clear as far as we had been able to ascertain. We had the documentary-we thought-proof of the issue. We had not only one source, which we had seen, but we had been told by very authoritative sources that there were these other elements. And, as I have said, we put it on the table on the 10th and no-one demurred and we moved on. CHAIR-I will come back to this question when I get to my chance to ask you some questions directly. Ms Halton-So what was this, Senator? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 963 CHAIR-I have not pursued the matter to my satisfaction properly, but Senator Faulkner does have the call. Senator FAULKNER-You can never be satisfied, Senator Cook. CHAIR-It is not true; I am very easily satisfied with a convincing case. Senator JACINTA COLLINS-Hearing from Mr Reith might help on this, of course. There are references to statements and photos and videos, and she may well have just taken the minister by his word. She had not learnt from other people's past experience. Senator FAULKNER-Are we through all that now? I was actually back at the footnote, as you would recall, Ms Halton. I probably jumped ahead of myself. I promised you I would deal with this matter chronologically, which I think is far more sensible than going backwards and forwards. So let me focus your mind on the events of the 7th, before we move on to the other events, because otherwise we will find ourselves in some trouble. During the task force meeting when this information becomes available to you, by whatever route-whether it is Air Vice Marshal Titheridge at the meeting, or before the meeting- Ms Halton-There is no doubt, Senator. No-one is denying there was a phone call from Air Vice Marshal Titheridge to me. It occurred at 9.15-ish and he certainly told me that information. On whether there was another source, I take Senator Collins's point that- Senator FAULKNER-I was aware of the phone call, but I thought it was possible that it was one of Air Vice Marshal Titheridge's earlier communications that may have informed you. Ms Halton-I do not think so. Senator FAULKNER-Fair enough. I was not aware of that detail. In relation to your own responses that day, we know from Mr Moore-Wilton's evidence to the Senate estimates committee that you passed this information on to him during that day. Ms Halton-That is right. Senator FAULKNER-Could you just indicate to the committee anyone else that you might have passed that on to. We know how it went to Mr Ruddock via Mr Farmer. Ms Halton-I said in my statement to Ms Bryant that my memory had been that I had not stopped midway in the meeting to ring Mr Jordana, who is the Prime Minister's relevant adviser. I have been able to check my telephone records of that day and, as best I can tell, the call that I made to Mr Jordana, as I think I said in my opening remarks, was at 3.30 that afternoon. Senator FAULKNER-So you did not have any contact with Mr Reith or Mr Reith's office that day? Ms Halton-No. CERTAIN MARITIME INCIDENT CMI 964 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Or no-one else in the Prime Minister's office? Ms Halton-Not that I can recall. Senator FAULKNER-And, as far as you are aware, no-one else in the Department of the Prime Minister and Cabinet? You had already spoken to the secretary, which is fair enough. Ms Halton-Did I ring somebody? No. Clearly, there were people in the meeting who were from the Department of the Prime Minister and Cabinet. Senator FAULKNER-In the discussions you did have that we know of with Mr Moore- Wilton and Mr Jordana were there any caveats on the information that you passed on in relation to this matter? Ms Halton-I suppose the point I draw your attention to, and it goes to the context of the information, is that we knew on the Saturday evening that the people concerned were wearing life jackets-we have already covered that quite extensively-and we agreed I would convene a meeting. What we did in the morning meeting, other than receive this particular piece of information-at the time it was one of a plethora of pieces of information; it was not a particularly standout item or issue; that might be hard to understand in retrospect but that is the case in the matter-was commission work to be done, information that needed to be gathered, to complete a paper. In fact, my call to Mr Jordana-and, as I have said, I have been back and checked the telephone records-was at about 3.30, and that in fact was at a time I had been into the office- I have said this, I think, in my remarks already-to dictate a skeleton of the task force paper for the evening meeting. We were trying to produce some advice by a reasonable hour. In my experience-because we had had this experience on rather a large number of occasions-if we started to draft as a group when the group convened we would often be there until two in the morning because the process of iterative drafting takes a long time. So I went with my assistant to the office. I dictated a skeleton which reflected the substance of the discussion in the morning with large gaps in it basically to be filled in as departments were able to advise us on particular areas, and my call to Mr Jordana was at the end of that dictation basically. What I did, from memory, is say, `This is what we know to date, this is what Defence have advised, this is where I am up to and this is when the meeting is next going to convene.' So it was a kind of general state of play. Because, as I have already said, our concern had been to manage issues around this vessel carefully, what I was doing was giving him the state of play as I knew it at that point. But I did not ring him before that. Senator FAULKNER-My question was: in your conversations with Mr Moore-Wilton and Mr Jordana were there any caveats, such as the fact that the advice was not in writing and so forth? Ms Halton-I would not have said that. What I would have said was `Defence advised that'. You will see that form of words reflected in the first part of the paper where it says quite clearly `Defence advised that'. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 965 Senator FAULKNER-Was there any questioning of the original information-for example, how many kids might have been thrown in the water, did they live, were they rescued, did they drown, what happened to them? Ms Halton-There was always a concern to ensure that there was no loss of life. I was not asked about the number but certainly I was asked whether everyone had been saved, rescued, whether there was any injury, those kinds of questions. Senator FAULKNER-You were asked? Ms Halton-I had always asked those questions. It was one of the first questions we always asked. Senator FAULKNER-So you knew everyone was safe? Ms Halton-We had been assured of that, yes. Senator FAULKNER-Was it true that Mr Ruddock was informed, in your view, as quickly as possible so that he could get this dreadful allegation out into the- Senator FERGUSON-It was not a dreadful allegation. Senator JACINTA COLLINS-Senator Brandis thought it was evil. Senator FAULKNER-Evil is how it was described earlier. The suggestion that asylum seekers were throwing their children overboard was described by the Prime Minister in terms that I think it would be reasonable-and I will pass on to him your view that it was not dreadful, but you go back and look at what he said about it at the time- Senator BRANDIS-At the time. Senator FAULKNER-At the time, exactly. You go back and see what your own party leader said at the time. I am interested in understanding from Ms Halton whether it was her view that Mr Ruddock was informed in the manner he was informed and as quickly as that information was passed on so that he could make the issue public as soon as possible. Ms Halton-I have two comments on that. As I said in my opening remarks, and as I said in my statement to Ms Bryant, I did not overhear the phone call between Mr Farmer and Mr Ruddock. In that context, I did not know that he had passed that information to Mr Ruddock. I should also add-and I have already made the comment about being in the office dictating papers and what have you-that I was actually in the office nearly all of that day with one minor exception when I went to the Fyshwick markets to provision the household. I should say that I do not even think that I knew that this information was in the public domain probably until very much later that night. When I became aware that it was in the public domain, I did not know where it had come from. CERTAIN MARITIME INCIDENT CMI 966 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-So in your view there was no urgency at the task force about passing this on to ministers so that it could be used politically? Ms Halton-If I had thought it was urgent, I think I might have rung Miles Jordana before 3.30 in the afternoon. Quite seriously, this was only one of a small-it was not a major issue. The notion that it was the most important piece of information that had to be passed on or around was not a fair way to characterise that meeting as far as I am concerned. Senator FAULKNER-But Mr Ruddock was giving a media interview, as you would recall, at 11.30 a.m. Ms Halton-I cannot say that I was aware of that. As you know, I believe I had a call from Mr Ingram who wanted to know where the information about there being a boat had come from. Because I do not believe I was aware, I cannot say that I was aware that he was giving a media interview. I cannot say that categorically, but it goes to my point that this was not an issue that the task force was in any sense dishing up to ministers to use in a way which you would regard as being-what was your term?-`excessively quickly'. I cannot recall exactly what you said. But the reality is that it was one of the details about the behaviour that we had discovered on that boat and I think I referred in my opening statement to the disabling of the steering et cetera as being part of that whole package and suite of things being observed. I do not believe that the notion of passing that information quickly was a feature of that meeting. Senator BRANDIS-If this advice was passed like all advice no doubt you give, in the manner of giving accurate and dispassionate advice- Ms Halton-Correct. Senator BRANDIS-Was it dispassionate when Mr Peter Doyle, who was the DFAT representative you would recall, said that morning about the discussion that there was also a discussion about Mr Ruddock giving a media interview at 11.30 a.m. and the discussion was about how the information could be used? Do you recall that discussion at the task force? Ms Halton-No, I don't. Mind you, as I have said, I do not recall the conversation between Mr Farmer and Mr Ruddock and the reality is that there were phones going all round that room so there may well have been discussions in the room that not everyone was party to. As I say, if there was a notion that he was doing a media appearance that morning, I genuinely do not recall it. I think that had the `children overboard' issue been a feature of a conversation about a media interview, I would have remembered it. My point about not having rung Mr Jordana until 3.30 that afternoon is that, again, my habit through this process when something had happened-for example, a new boat had been spotted or whatever-was to very quickly inform Mr Jordana and Mr Moore-Wilton of those issues. Again, you cannot reconstruct every memory and every event that happened as part of this process, but I go back to my memory but also to what I did-which I have checked in my telephone records-and I did not instantly get on the phone and pass that to either Mr Moore-Wilton or to Mr Jordana. Senator FAULKNER-But I want to be assured that there is no overt politicisation going on with the IDC. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 967 Ms Halton-I understand that. Senator FAULKNER-Hence, when I read a witness statement that says the discussion was about how the information could be used, I was concerned. Ms Halton-As I say, that perplexes me. Can I also say that I understand that Mr Doyle does not remember the evening meeting and the completion of the paper. Senator BRANDIS-Ms Halton, it is a commonplace thing, is it not, for public servants to provide information to ministers against a media deadline? In other words, if they know that a minister is giving a press interview at a given time and requires information before that interview, it is the most commonplace thing in the world to meet the requirement for that information. Ms Halton-Certainly, but in this particular case, as I have said, I am not confident that there was canvassing of the `children overboard' issue in relation to this particular matter. I have heard recently that that interview was meant to be about the legislation. Senator BRANDIS-I know the line that Senator Faulkner is pushing. I understand why he is pushing it. I cannot for the life of me see how it could be regarded as political for a public servant to give a minister information in advance of a media interview, knowing-particularly since an election campaign is going on-that the minister is going to make political points in the interview. What else would he do? It is the middle of an election campaign. How does that make the provision of the information sought itself a political act? Ms Halton-I can answer that in a different way. It goes to Senator Faulkner's question about politicisation. Let us address the issue directly. I am absolutely confident that this committee behaved extremely properly in terms of information management and issue management. It was explicitly and deliberately careful. I have already made a reference to the fact that issues in relation to the caretaker conventions were as appropriate canvassed on the odd occasion. I cannot go to specifics, but I do recall that. As a public servant of 20 years standing, I am very familiar with the APS code of conduct and values. I am absolutely confident that the discussion in those meetings and the behaviour I observed and certainly of my officials was very proper. Senator FAULKNER-How does that fit with the preparation of media lines for Minister Ruddock at the IDC? Ms Halton-We should make a distinction. Sometimes people use terms like media lines when in fact what they mean are the facts-and this goes I think to Senator Brandis's point. Senator MASON-As opposed to spin. Ms Halton-Absolutely. We need to be quite clear that spin, to use Senator Mason's term, was never a province and is not properly a province of bureaucrats. And, anyway, we're no good at it. Senator JACINTA COLLINS-Some politicians aren't either! CERTAIN MARITIME INCIDENT CMI 968 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I could not possibly comment. That goes to my point about the facts that we canvassed on the Wednesday, the 10th, about, as we knew it, the event. There were on a couple of occasions what I would style `talking points' in relation to particular events that were canvassed and cleared in this group. It goes to my point about all being clear about what the circumstances were. What was the term you used, Senator Faulkner: media lines? Senator FAULKNER-Media lines. I asked: how does this fit with developing media lines at the IDC? Ms Halton-And that is my point. My point is that there was an agreement about the facts- and, as I have said, there were a couple of occasions on which those talking points which went to facts were prepared. They were agreed to make sure that they were accurate and everyone agreed them from all their perspectives. That is different to Senator Mason's term of spin. Senator FAULKNER-Really. Senator BRANDIS-Let me make the point in the form of this question: if a public servant provides factual information on request to a minister and that minister then uses those facts in a media interview to make a political point, does the conduct of the public servant, in providing those facts, in any way compromise Public Service values? Ms Halton-Not in my view-and particularly when those facts are provided in a context where the government's policy is stated and known prior to that election. Senator BRANDIS-Even if there is an expectation-because senior public servants, men and women of the world, know the way government works-that the minister, having been provided with those facts, might make a political point out of them, does that compromise Public Service values, if all the public servant does is provide the facts? Ms Halton-Not in my opinion. Senator BRANDIS-Indeed, if a public servant declined to provide facts to a minister on request for fear that the minister-who is, let it be said, a politician-might use those facts to make a political point in some form or another, do you think that the Public Service would ever provide any facts to any minister? Ms Halton-You are asking me to indulge in speculation, Senator, but I think we can all work out what the answer might be. CHAIR-But Public Service values, Ms Halton- Senator FAULKNER-In fact, the media lines were not facts, were they, Ms Halton? In fact, the media lines were just plain wrong. Ms Halton-Which ones are we talking about, Senator? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 969 Senator FAULKNER-Are you aware of the media lines that were provided? We know about them because Ms Katrina Edwards's witness statement says, `Bill Farmer said that Minister Ruddock had requested a media line.' Do you recall that? This is at the IDC you were chairing. Ms Halton-As I have said, my recollection is (1) a call from Mr Ingram about whether I knew where the detail of this particular vessel had come from and (2) a discussion about whether we knew how many people there were and where they were from. There was a series of fairly standard information items on which we were asked to provide detail if we had it. Senator FAULKNER-But you were quick to remind me that Ms Edwards, of course, is the notetaker at the IDC, so I assume that her notes and her recollection would be better than most. Would you agree with that? Ms Halton-I certainly would. Senator FAULKNER-She is the one who said she told you about the fact that Strategic Command had said that there was doubt about children being thrown overboard; she is the one who raises in her witness statement- Ms Halton-Senator, can I just say that what you quoted to me was a statement which said that there was an absence of documentary evidence, not that there was doubt. I do not recall a statement that there was doubt about this. I think it is important to make that distinction. Senator FAULKNER-In her witness statement she says, `Bill Farmer said that Minister Ruddock had requested a media line.' Do you recall that occurring? This is the meeting on the morning of 7 October. Ms Halton-And what I have just said is that my memory is that we had a conversation. As I said, I did not overhear any conversation between Mr Farmer and Mr Ruddock. I am aware that there was a conversation about what we knew about this particular vessel. Whether that was in the context of media or not, I cannot recall. In terms of Senator Mason's term `spin', I definitely do not recall that. But it would not surprise me if, in the process of going through what we knew-numbers of people, origin et cetera-that that would then have been provided to ministers. Senator FAULKNER-The minutes of the meeting, under `Issues', describe- Ms Halton-Senator, do you have the minutes? You asked for the Department of the Prime Minister and Cabinet- Senator FAULKNER-No, this is just Sunday, 7 October. I do not think I asked for minutes of all- Senator JACINTA COLLINS-No, I did. Ms Halton-I knew someone over this side did. CERTAIN MARITIME INCIDENT CMI 970 SENATE-Select Tuesday, 16 April 2002 Senator JACINTA COLLINS-You were not confusing us again, were you? Ms Halton-Sorry, I must stop that. Senator FAULKNER-The minutes say: In the morning, agencies considered options and identified information requirements. Media lines were also considered and provided orally to Mr Ruddock. Ms Halton-Let me give you one insight as to what that could refer to. Minister Ruddock's media adviser was sometimes asked questions about whether there was a vessel and, as I have already said to you, there was a desire sometimes to report that there was a vessel when it was an operational issue and the general principle, as I recall it, was not to comment on operational issues. To the extent that there might have been advice consistent with advice that I had given on a regular basis, which was not to comment on operational issues, that may well be what that is a reference to. Senator FAULKNER-You said in your witness statement to Ms Bryant: ... Strategic Command did not always seem to have access to information from the chain of command ... Do you stand by that? Ms Halton-Yes. That is my point about the shots. The fact that those photos appeared and we had not been told. Senator FAULKNER-Yet there were special arrangements put in place, weren't there? The special reporting arrangements actually relied on the head of Strategic Command, Air Vice Marshal Titheridge, to advise the task force. Ms Halton-But, as we have already covered in your questioning of me, you asked me whether I was aware that a special arrangement had been put in place, and I told you I was not aware of that. Senator FAULKNER-Yes, but Air Vice Marshal Titheridge said this in his witness statement to Major General Powell: I should add that often information came from the task force chair with a request for us to confirm its veracity or otherwise. Is that the way it worked? It sounds like a two-way street. Reading Air Vice Marshal Titheridge's witness statement, I get the feeling you were in the loop a hell of a lot more than Air Vice Marshal Titheridge. Ms Halton-Senator, it goes to my point about timeliness of information, and merely that. If I can give you a worked, practical example-Senator Collins, am I about to confuse you with Senator Faulkner again? I am sorry if I am. Did you ask the question about what date the Tampa was boarded? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 971 Senator JACINTA COLLINS-No. Ms Halton-I am sorry, I have done it again. Senator Faulkner, you must have asked me which day the Tampa was boarded. The answer to the question is the 29th-we have checked. Senator FAULKNER-I thought it was, but we got the dates wrong because, as you would appreciate, there is a mistake in the PM&C table. Ms Halton-Which, I understand, has been corrected. Senator FAULKNER-Has it? That is good. Ms Halton-That is my understanding. The reality is that on that particular day we were asking Defence to advise us about what was going on. In the end, because information coming down their chain of command was moving relatively slowly, we actually got advice from Coastwatch that that operation had commenced. We also got advice from someone sitting on a balcony on Christmas Island with a set of binoculars and a telephone. I am just using this as an example. I would then ring Air Vice Marshal Titheridge and say, `I am being told this-can you confirm it?' Senator FAULKNER-How does this fit with your role in coordinating agencies? Is this what the chairman of a task force normally does-receive all this sort of information from people with binoculars peering out in the ocean? Ms Halton-No. I was not personally receiving advice from people with binoculars, nor was I receiving advice directly from other people. This was information that was appearing in various other quarters. I had been asked whether in fact this was accurate, and I would ring Air Vice Marshal Titheridge and ask for confirmation. You simply raised the question about his remarks. I asked him for confirmation of information, and it would have been in that kind of case. Senator FAULKNER-But at no stage do you take the initiative to go to Defence or any other agency to check the veracity of allegations: firstly, that children had been thrown overboard; secondly, that any photographs that had been published actually represented that incident; or thirdly, that there was a video that showed children being thrown overboard. You at no stage go to any agency to satisfy yourself about the true facts of those matters. Ms Halton-Senator, there are any number of events, facts and issues that have been part of what was quite a lengthy process. It was not my job, as I have already said-nor, indeed, was it the job of the task force to insert itself in the line of command in the military or in the defence forces. Did we physically go to Defence and demand that they produce particular things? No. That is because- Senator FAULKNER-I did not ask that. I asked whether you satisfied yourself at any stage about those matters-about the true facts on those issues. Ms Halton-As I have said, I was satisfied. As we now know, I was satisfied based on a false premise, but I was satisfied- CERTAIN MARITIME INCIDENT CMI 972 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-A false premise told to you by either Minister Reith or Air Vice Marshal Titheridge. Ms Halton-That is correct. Senator FAULKNER-So you blame Minister Reith or Air Vice Marshal Titheridge for getting it wrong. Ms Halton-I am not blaming anybody. All I am relaying to you is the basis on which we ceased pursuing the matter. Senator FAULKNER-But what happens is that probably Minister Reith, by the sound of what you told us before, rings you and says there are photos. You just accept that at face value, and life moves on. Ms Halton-As I have said to you, and I think I said in my witness statement to Ms Bryant, in fact after the conversation I had with Minister Reith I then made a series of other phone calls to corroborate what he had told me because there was material in that conversation that I had not hitherto been aware of. He told me that he had just given a media interview and he had said the following things. I thought to myself, `Oh, I didn't know that.' Then I rang a couple of other people, as you know from my witness statement to Ms Bryant, to assure myself that what he had said in the public arena was indeed a fact, even though we had not been advised of that. Senator JACINTA COLLINS-About the video? Ms Halton-That was the particular thing that I had no conception of. I think Ms Edwards and I have a different recollection of whether I also asked for positive confirmation of the photos-and that part I am unclear on. The thing I particularly remember was thinking, `Oh, a video?' and getting on the phone and making a series of phone calls, and then being told that yes, indeed, there was a video. Senator FAULKNER-But you are very active on the phone on all these issues to people. That sounds like checking it out. You speak to the Minister for Defence, you speak to Air Vice Marshal Titheridge, you speak to Mr Jordana and the Prime Minister's- Ms Halton-The Minister for Defence actually spoke to me. I think we should be quite clear on that point. Senator FAULKNER-Okay. You have phone conversations, and a significant number with him, with other ministerial staff, with prime ministerial staff, with Mr Moore-Wilton and with a whole lot of people about these issues, but at no stage do you or the task force take the fundamental step in the direction of actually checking the veracity of this information-of checking whether children were thrown overboard, whether the photos depicted children who had been thrown into the water by asylum seekers or whether there was a video also depicting these events. And that is fair, is it not: you never do it? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 973 Ms Halton-As far as we were concerned, the process we went through was a process of checking the detail and then seeking positive confirmation of the facts as we knew them, and we got that positive confirmation. Senator FAULKNER-You got at least two pieces of positive confirmation, didn't you? First of all, you got the chronology and the footnote, and that gives no support to any such claims, does it? Ms Halton-You have just turned the notion of positive confirmation into a negative. Go back to what I said in my earlier evidence. This is in a context where we are told this is a categorical fact. No-one has said to us, `This is not a categorical fact,' or, `There is doubt about it.' We have raised questions about the timing of the events, about the shots, and asked for detail. We have proactively sought that confirmation from Strategic Command. Senator FAULKNER-And the one time you ask for confirmation from Strategic Command and you get an answer, the answer is ignored. Ms Halton-The chronology, which we have already discussed, had a footnote which said, `It may have occurred on the other side,' and this was-and I said this in my opening statement-part of a series of exchanges between Strategic Command and the people in Social Policy who were actively trying to understand the contradictions in that chronology. As I have already outlined, the experience of hearing from people much closer to the events, there were other things that were germane to our understanding of this event-that is, there were photographs, a video and there were witness statements-and the fact that we took our understanding of the facts to the evening meeting. That was never denied, and at that point we moved on. Senator FAULKNER-But the chronology that was requested from Defence does not say that children had been thrown overboard, does it? Ms Halton-No, but it says it may have occurred. Senator FAULKNER-And the footnote says there is no indication that children were thrown overboard. That is the first bit of black-and-white information that you request; it comes to PM&C but it is ignored. Then, of course, there is Wing Commander Cowan's brief at 0800 Australian Eastern Standard Time on 8 October 2001- Ms Halton-I do not know what you are referring to, Senator. Senator FAULKNER-Well, this goes to PM&C. Ms Halton-I have never seen it. I do not know what it is. Senator FAULKNER-This is the Operation Gaberdine/Operation Relex brief that I have discussed with other witnesses. It goes to the Minister for Defence, the parliamentary secretary, PM&C, CDF and so forth. This is from Strategic Command, in black and white. Again, no-one seems capable of picking up the fact that, there in black and white is no suggestion about children being thrown overboard. CERTAIN MARITIME INCIDENT CMI 974 SENATE-Select Tuesday, 16 April 2002 Senator BRANDIS-I raise a point of order on the question of relevance. The witness has said she has never heard of this document. I am sorry, Mr Chairman, but I am at a loss to see how a question directed to a witness about a document of which she is entirely unaware-and there is no suggestion that it ever came to her-can be admissible. Senator FAULKNER-There is nothing contradictory in the chronology or in the Strategic Command brief. These go to Prime Minister and Cabinet. Technically, there is no receipt point with the task force. We know that. The chronology goes to a junior staff member, according to Ms Halton, in Prime Minister and Cabinet. Senator BRANDIS-She can only speak of what she knows. Senator FAULKNER-The task force does not actually have a fax machine. Senator FERGUSON-You only half quote the chronology. CHAIR-Order! Senator FAULKNER-She does not have a fax- Senator FERGUSON-It also says it is possible that it did occur. That is what the chronology says. CHAIR-Order! Senator FAULKNER-The point is: these two written advices, at least, go and they are both ignored. Senator FERGUSON-Why did you only half quote the chronology? CHAIR-We are debating the point of order now. Just a moment. I have the call. We have had a point of order from you, Senator Brandis. Senator BRANDIS-Further to my point of order- CHAIR-You may continue in a moment, when I have finished. We have had a point of order from you, Senator Brandis, and a reply followed by an unseemly across-the-table debate between all of you, my colleagues. Let us get some order and rationality to this. Have you completed stating your point of order, Senator Brandis? Senator BRANDIS-I have stated the point of order. I wish to speak to it. CHAIR-You can speak to it. Senator BRANDIS-Thank you. The witness can be asked if she knows of the document. She has been asked that, and the answer is that she does not know anything about it. She can, I suppose, be asked questions in relation to process, so as to reveal the way in which a document CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 975 of that kind might have been treated, and she can speak of her knowledge of process. She has not been asked that. If she were to be asked that, I would not object. But, if she is asked, `Do you know about this document?' and she says, `No, I have never heard of it,' and then Senator Faulkner proceeds to ask her a series of questions premised upon knowledge of the document, it is objectionable on two bases. One is relevance, because nothing that she can say can be relevant, because she has no knowledge. The second is fairness, because there is a fairly clear innuendo overlying Senator Faulkner's question, about the way in which this officer has handled herself. This is extremely unfair, since it is premised on something of which- incontrovertibly-she was unaware. CHAIR-Is that all? Senator BRANDIS-Yes. CHAIR-Does anyone else wish to speak on the point of order before I rule? Senator FAULKNER-I understand why Senator Brandis is trying to interrupt the flow of questioning. I would do exactly the same thing if I was as embarrassed as Senator Brandis. Senator MASON-You have been going for hours. Senator BRANDIS-Come on, Senator Faulkner, do not make cheap political points. CHAIR-Order! Senator JACINTA COLLINS-You have been encouraging him, Senator Brandis. CHAIR-Order! If that is all on the point of order, let me say that I have tried to apply a fairly easygoing, liberal-in a little `l' sense of the word-reign here, and to allow a fair bit of scope for honourable senators to pursue their questions fully. I think that is a matter of record. Senator MASON-I would agree with that. CHAIR-I am being asked now to apply a more stringent test-which may be fair; I do not know. Before I go to that issue, I am mindful that Senator Faulkner has not completed the question, and I think I should allow him the opportunity, given the standards I have applied, to complete his question. Senator FERGUSON-I seek a point of clarification from Senator Faulkner. Senator JACINTA COLLINS-From Senator Faulkner? Senator FERGUSON-Yes. In the question that he asked he is continually referring to a chronology. For the sake of the witness and for my understanding of her answer, can I assume that it is the chronology of the footnote that says that there is `no indication that children were thrown overboard'-which is what Senator Faulkner quotes. But the full footnote also says: It is possible that this did occur in conjunction with other SUNCs jumping overboard. CERTAIN MARITIME INCIDENT CMI 976 SENATE-Select Tuesday, 16 April 2002 Is that the chronology you were referring to? Senator FAULKNER-It is indeed; and I make the point that not only is the footnote, you would think, enough to cause concern- Senator FERGUSON-But why did you not quote the whole lot of it? Senator FAULKNER-but so is the chronology itself, which does not mention the issue either. Senator FERGUSON-It is not just the footnote. Senator BRANDIS-That is a chronology of events, not a chronology of observed- Senator FAULKNER-That is exactly right. It is a chronology of events, and one of the events that did not occur was children being thrown overboard. CHAIR-If we get into the question of quoting the full text then I think there has been selective quoting more than once during this inquiry. Senator BRANDIS-There has been, and you should bring Senator Faulkner into line whenever he does it, with respect, Mr Chairman. CHAIR-I have ruled on the point of order. Proceed, Senator Faulkner. Senator FAULKNER-Thank you, Mr Chairman. I was making the point, in relation to these two communications, that they go to the Department of the Prime Minister and Cabinet. One of the problems here is whether this is the same as effectively going to you. You are the chairman of the task force, but I think you would accept, wouldn't you, that as you are an officer of the Department of the Prime Minister and Cabinet-now, since the establishment of the people-smuggling task force, the coordinating agency on all people-smuggling policy and process questions-it is absolutely appropriate that these matters end up in the Department of the Prime Minister and Cabinet? And they do. Ms Halton-I do not accept that, Senator. Senator FAULKNER-You think it is inappropriate that they end up in Prime Minister and Cabinet? Ms Halton-Your question was a little unspecific, so let us go to specifics. Senator BRANDIS-You will have to get used to that with Senator Faulkner. CHAIR-Order! Please proceed, Ms Halton. Ms Halton-Thank you. Essentially, as we have already discussed at some- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 977 Senator FERGUSON-It is going to be a long night- Ms Halton-Finished? CHAIR-Ignore us and proceed with your answer. Senator JACINTA COLLINS-Senator Brandis will never be- Senator FERGUSON-Senator Collins, Senator Faulkner is- CHAIR-Order! It is fair enough for the witness to pause if there is so much audible conversation going on in the room. Ms Halton-And I have quite lost my train of thought, Senator. What I was going to say was that we have already canvassed here, very extensively, the role of the task force. We have canvassed its role in ensuring that everyone who had a role to play in this exercise had the benefit of the advice, the counsel, the knowledge that was contained in multiple agencies. We have already canvassed extensively the need-probably doubly reinforced by some of the things we now know-to ensure that agencies were fully apprised of all of the material in relation to an exercise like this. We have also acknowledged-and I know I have said this to the point of being, I suspect, stultifyingly boring, Senator-that the task force did not insert itself in the chain of command. You have rightly made the point that I, on an own-motion basis, asked for confirmation in relation to the details of this event. I did not do that on the basis of any concern raised by anybody else. Again, I have made the point, and I apologise if I am being excruciatingly boring by keeping on repeating it- CHAIR-`Boring' is never an offence in the Senate. Ms Halton-You cannot expect me to comment on that, Senator. The reality is that we did not have a doubt about this. What we were looking for was a kind of positive confirmation. The environment in which we operated was a known environment where-and we have already talked about this-the cable traffic was excruciatingly slow. We often got information from other sources in a far more timely way. With the benefit of hindsight, you would probably treat that particular statement differently. At that time, we did not have the benefit of all the information that you have now had brought out in front of you. What we had was a circumstance where we had been told this was a fact. As I said in my opening statement, that fact was not caveated in the paper of the 7th explicitly on Defence advice. We had some argy- bargy about- Senator JACINTA COLLINS-That fact was not caveated in the report- Ms Halton-Of the 7th. Senator JACINTA COLLINS-specifically on Defence advice? Did you say that? CERTAIN MARITIME INCIDENT CMI 978 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Yes. The process of actually preparing that paper, which was provided on the evening of the 7th, notwithstanding the memory of Mr Doyle, was that every line of the paper was entered, reviewed, critiqued by the evening meeting-every line of it. Senator JACINTA COLLINS-And Air Vice Marshal Titheridge said you do not caveat that? Ms Halton-In fact, there were caveats added in some places and the text in that area was modified to be as you have now seen it. Senator JACINTA COLLINS-A caveat was removed, was it? Ms Halton-No, I do not think there was a caveat removed in that respect. My point is that it reflected the verbal advice and then that was edited and confirmed, line by line, at the meeting. Senator JACINTA COLLINS-Air Vice Marshal Titheridge claims that it was after the meeting. Ms Halton-I have checked the pass swipes and the video footage of when people left the building that evening. I have had it all examined and I can assure you that all of the members of that meeting left at the same time. I have checked the editing records of when that document was edited and I can assure you that document was edited and completed while the meeting was under way. I know when the document was sent and I know it was not edited after the meeting was completed. We have gone and checked. Senator FAULKNER-I am glad something has been able to be checked. Ms Halton-The point about that is that is something which is materially the responsibility of that department and was actually conducted in that department. Senator FAULKNER-Aren't you concerned as a senior public servant at the amount of reliance there is on verbal as opposed to written advice? Ms Halton-The world we live in these days is not the world that existed when I first joined the Public Service. Senator FAULKNER-I know that. Ms Halton-The world moves extraordinarily quickly. Senator FAULKNER-Particularly in an election campaign. Ms Halton-Regardless of it being an election campaign or not. One of the reasons why the task force was asked on a regular basis to provide written advice on a series of issues was precisely where it was possible to take pause and to be quite confident that the advice that was provided was whole-of-government advice. I make that point because these papers that were provided were edited and considered by all of the members of those groups. That was advice in CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 979 writing. It was advice in writing on the basis of the clearance of the very senior officers who attended those meetings. Senator FAULKNER-Have you seen the Strategic Command brief of 8.00 a.m. of 8 October 2001? Ms Halton-Would you like to show me what you are talking about? I do not instantly know it. Senator FAULKNER-I can dig up a copy for you, if you like. This is the brief cleared by Group Captain Walker. Perhaps the best way is to pass my copy to you. Ms Halton-I do not recall ever having seen that. Senator FAULKNER-Would you accept that the distribution areas for that particular report includes the Department of the Prime Minister and Cabinet, as recorded on the document? Ms Halton-If it says this, I cannot deny that it is not the case. I am advised by my former colleague that this was sent to the international division in the department and having been looked at was destroyed. Senator FAULKNER-That is handy! CHAIR-Maybe we have to call the International Division. Ms Halton-I should be clear about this: I am advised that these sorts of things were received and their general practice was to destroy things, but we cannot say categorically whether this one was or was not. But, if I could say it as a general principle, I have never seen one that looks like this, to my memory. Senator FAULKNER-I do not know the officer who is providing that advice. Who is the officer providing that advice to you? Ms Halton-Mr Ingram, who is a Social Policy Division officer. Senator FAULKNER-Fair enough. Ms Halton-Would you like this back, Senator? Senator FAULKNER-In the fullness of time. Ms Halton-Do you want to ask me more about it? Senator FAULKNER-I am interested in the suggestion- Senator BRANDIS-I would like to see it now, Ms Halton, so I can read it while Senator Faulkner is asking his questions. CERTAIN MARITIME INCIDENT CMI 980 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-It is in your documents. You do not need a copy; you have got a copy. That one is mine. It is attached to Group Captain Walker's submission to Bryant. All the committee members have it. Is it the practice of International Division to destroy documents that come to it from Strategic Command? Ms Halton-International Division was not part of my group in Prime Minister and Cabinet, and I cannot make any comment about the practice of International Division. Senator FAULKNER-You have just told the committee. Here is a substantive piece of evidence, distributed to the Department of the Prime Minister and Cabinet some time after 8 a.m. on 8 October 2001, which is a piece of information and a very important brief that scuttles the `children overboard' claims, and we are told tonight that it has been destroyed in the International Division of PM&C. Ms Halton-As I have said to you, and having looked at it, I have not seen a brief that looks like that. My colleague who is here from Prime Minister and Cabinet advises me, as I have advised you; what I can do is perhaps ask that that information be pursued in Prime Minister and Cabinet and that they come back to you on notice on that subject. Senator FAULKNER-I do find it incredible because here in black and white is a document of an early date in the process. No wonder it was so hard to get through the fog on this issue, if important documents like this are being shredded in the department. CHAIR-Did the International Division know of the existence of parts of this? Ms Halton-Yes. CHAIR-It knew of the general material that you were dealing with? Ms Halton-Yes. CHAIR-If it obtained a document which related to your affairs, would it have routinely forwarded it to you? Ms Halton-Not necessarily. CHAIR-But it would check with you, out of courtesy, as to whether you had a copy of that document? Ms Halton-Not necessarily. CHAIR-Why not? It would just go off and destroy it? Ms Halton-Sorry? CHAIR-It would just go off and destroy it without checking with you? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 981 Ms Halton-As I can say to you quite categorically, I did not know about that document, nor was it discussed with me. Senator FAULKNER-But you say to us, Ms Halton, that Strategic Command are the people who know best, they are the people we should take notice of in relation to these matters, they have got the senior Defence representation on your IDC, they send documents to the department and they are probably destroyed-they probably go straight through the shredder. That is extraordinary. Ms Halton-I think you are being a little wicked because you have just said that we have said that Strategic Command are the people who are most important and know everything, and I think I have explicitly said to you on several occasions this evening that I think, on experience, sometimes Strategic Command did not know everything. Senator FAULKNER-But the point is- Ms Halton-So I did not say what you just said I said. Senator FAULKNER-I think you indicated that you were dependent on Defence advice from Strategic Command on the IDC. Ms Halton-It is certainly the case that Strategic Command was the nominated member of the task force. Senator FAULKNER-Here you have written information very early-this is literally the day after the claims are made at the IDC: this is 8 October, 8 a.m. Australian Eastern Standard Time-when this brief goes off to the International Division of PM&C and it is destroyed. That is handy, isn't it? Ms Halton-Let us be clear: I have said that my colleague advises me that they were, as a rule, destroyed; my colleague advises me it is unclear what happened to this one. Senator FAULKNER-Are you seriously saying to me that documents from Strategic Command during this sensitive period are routinely destroyed? Ms Halton-No, I am not saying that to you; I am saying what was the general practice. And what I have also said to you- Senator FAULKNER-The general practice is that they are routinely destroyed. Senator BRANDIS-Listen to her answer. Ms Halton-What I have also said to you is I am happy to ask my PM&C colleagues who are here to go and investigate that matter for you and come back to you on notice. Senator BRANDIS-Ms Halton, while we are dealing with this document-and perhaps I did not hear Senator Faulkner's question properly-as I understand it, the point being sought to CERTAIN MARITIME INCIDENT CMI 982 SENATE-Select Tuesday, 16 April 2002 be made is that this document provides some support for the view that no child was thrown overboard from SIEV4. Unless I am missing something or unless I have been handed the wrong document, I think it does not say any such thing. And, indeed, under the fourth dot point under the discussion of `significant incidents', all it says is that the UBAs: ... refuse to accept the warning notices, refuse to identify the crew, threaten or throw themselves overboard and disable the vessel steering and navigation systems and threaten the boarding parties. CHAIR-It does not state a negative, that it- Senator BRANDIS-Let me finish, please. CHAIR-It does not state that something did not occur. Senator BRANDIS-Let me finish, please! CHAIR-I am just making that point; it does not state- Senator JACINTA COLLINS-Point of order, Chair! CHAIR-Senator Collins, on a point of order. Senator JACINTA COLLINS-Senator Brandis in the past has had ample opportunity to ask his questions in his own way without interruption. Would you please ask him to desist from trying to reinterpret Senator Faulkner's questions. Senator BRANDIS-I am asking my own question. CHAIR-I have got a point- Senator FAULKNER-I could not care less what he does. My point about children being thrown overboard is clear, Senator Brandis. Ms Halton has had a chance to see the documents. She knows- CHAIR-Can I rule the point of order out, unless the senator wants to debate it further, because I have allowed the practice of interventions and indeed I just made one myself. Senator JACINTA COLLINS-But this is becoming far more extreme, Chair. CHAIR-Yes, I appreciate that; and we will not get to our concluding hour if we keep interrupting one another, but I will allow Senator Brandis to complete his question. Senator FAULKNER-He also indicated he did not want to ask any questions. Senator BRANDIS-That is quite right, Senator Faulkner. The reason the government senators have decided to allow you to have a proper go at this witness right up to the end of her period is that we have very few questions of our own and, as a result of which, the opposition CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 983 and Democrats senators will have virtually all of the time with Ms Halton. The only indulgence we seek is the occasional clarifying intervention. CHAIR-That is a lovely debate between each other, but can we please proceed. Senator Brandis, I gave you the call; please take it. Senator BRANDIS-Thank you very much indeed, Mr Chairman. Notwithstanding the point of the question being directed to you-and I will not read the sentence again, for reasons of economy of time-there is not a word in this document that speaks to the issue of whether or not children were thrown overboard. It does not speak of children at all. To the extent to which there is the issue of UBAs going overboard, some of the conduct reported in the fourth dot point merely says that the UBAs `threaten or throw themselves overboard': not adults specified, not children specified, but generically a reference to the UBAs. Perhaps I am a bit slow, Ms Halton, but I cannot for the life of me see how this is evidence that children were not thrown overboard, given that the UBAs included children, and it says that UBAs were thrown overboard. As far as it goes, it seems to me to provide- CHAIR-It does not say that. Senator BRANDIS-some evidentiary support- CHAIR-It does not say that. Senator JACINTA COLLINS-It does not say that at all. Senator BRANDIS-`Threaten or throw themselves overboard': those are the words. Senator JACINTA COLLINS-`Thrown'. CHAIR-No-one is pretending that children decided to throw themselves overboard. Senator BRANDIS-`Threaten or throw themselves overboard.' As far as it goes, it seems to me to provide some-and I will agree it is limited-evidentiary support for the proposition, and certainly no evidentiary support to contradict the proposition. Would you care to comment on that? Senator FAULKNER-10 out of 10! Ms Halton-I do not think I should comment, really. Can I say- CHAIR-Just on that point, then, the heading is `Significant incidents'- Ms Halton-Can I finish what I was going to say? Senator FAULKNER-I am sorry; I thought you said you were not going to comment. Ms Halton-I was half a syllable- CERTAIN MARITIME INCIDENT CMI 984 SENATE-Select Tuesday, 16 April 2002 Senator JACINTA COLLINS-It was a quip. Ms Halton-It was a quip. Thank you, Senator Collins, it was a quip. I might have to stop doing those. We come back to the context. I know you have already said you have trouble with this, but at the time we did not have a doubt. There was no doubt in the department. There was no doubt raised with us. We did not hold any particular concern. I certainly did not, and whilst I cannot speak in the detail of what happened in the International Division-and I have said we will happily find that out for you-the reality is that we had a meeting on the 9th, which Alan Titheridge attended, and we had a meeting on the 10th, which Alan Titheridge attended. And I could keep going. On the 9th I asked for this matter to be pursued and on the 10th we then went to the detail as we understood it-and no-one demurred from this; we had been given the other information in an environment where we did not doubt it. We were seeking positive confirmation. The reality is that I do not think, to be quite frank, had I seen that and had I read it, it would have set alarms bells running with me. Senator BRANDIS-Of course it would not because there is not a syllable in it that contradicts the proposition that children were thrown overboard. CHAIR-Can I just come to that point and to the point you are now making, Ms Halton. This is a report of what occurred and was signed off as a documentary report of what occurred. The heading that you have been referred to is `Significant Incidents'. Ms Halton-This is in this report? CHAIR-Yes. This is the document that you have been directed to by Senator Faulkner. Ms Halton-Which I happen to have a copy of. CHAIR-The heading is `Significant Incidents'. In such a report it is extraordinary to suggest that a significant incident would be reported that no children were thrown overboard. So it is not surprising that the document does not say that. What the document says is what did occur and what the document says is that certain things happened, none of which included children being thrown overboard. Senator BRANDIS-But UBAs throw themselves overboard. The idea that the UBAs end up in the water is the very point that this document makes. And when you say, Senator Cook, it is a report, it is not a report; it is a very abbreviated short-form summary of perhaps a couple of hundred words. Senator FAULKNER-It is a brief. CHAIR-It says, `Australian Defence Headquarters Operation Gaberdine/Operation Relex'- Senator FAULKNER-That is what Air Vice Marshal Titheridge describes it as. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 985 CHAIR-`0800 AEST 8 October 01 ADF activities last 24 hours'. Then you drop down to the second headline raised in black type-`Significant Incidents'-none of which report children being thrown overboard. All I am saying is that that does lend support to the line of questioning that Senator Faulkner is pursuing. Ms Halton-Can I make another point to you, Senator. You have drawn my attention to the fact that PM&C is one of- CHAIR-It is one of several. Ms Halton-17 recipients on this list. CHAIR-Yes. What is the point? Senator BRANDIS-So the suggestion that the document has been surreptitiously and nefariously destroyed seems to be garbage. Senator FAULKNER-No. The point is how many of them are on the task force-PM&C and Strategic Command, where it comes from. That is the significance of it. Ms Halton-And the Minister for Defence and the parliamentary secretary. Senator FAULKNER-He is not on the task force. Ms Halton-Yes; but, as we have already observed, certain people did tell us in relation to the substance about videos and a number of other things- Senator FAULKNER-No, I accept that point. You are making a very valid point, Ms Halton, that other people who should have known better should have looked at the brief. You are absolutely right. My only point is that in relation to this particular matter there is no mention of children being thrown overboard in such an early brief, and you would have thought that if such a significant event had happened it would have been included. Ms Halton-I would not have said that. Senator FAULKNER-But, anyway, you would not think that once you found out that the thing had been destroyed in the International Division of PM&C. Ms Halton-Let's go to your point, which is that something produced at 8 a.m. Australian Eastern Standard Time on 8 October by Strategic Command would necessarily have contained all of the material. As I have already said to you on several occasions, our experience was that information coming through the chain was often very, very slow and, frankly, had I seen this, I would not necessarily have been alarmed or alerted. This was on the morning of the 8th, so this is basically under 24 hours after, I think, we all agree I was advised by Air Vice Marshal Titheridge about this event. Some 36 hours later I have asked Defence to clarify this. So a bit over 24 hours after that we have been assured in relation to the evidence in this matter and we, as a task force in a coordinating role, have moved on. CERTAIN MARITIME INCIDENT CMI 986 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-I would appreciate your taking on notice for me what you offered to take on notice- Ms Halton-Yes. Senator FAULKNER-which was whether this and other documentation that comes to PM&C from HSC is, as a matter of course, destroyed. Ms Halton-Certainly. I am relying on the advice I am given from someone who is from the international division, so I could well stand to be corrected. I have already undertaken to ask someone to give you some information on notice about that. CHAIR-Who would have directed this report to the international division and not to your task force who is relevant to the content of this report? Ms Halton-I do not know that `directed' is probably the right description. In my experience, our interface with Strategic Command was intermittent. We have already canvassed in some detail this evening the fact that, when we had our unauthorised arrivals task force, we interfaced with Strategic Command because they were the nominated members. That process stopped when that task force finished. So we did not have a regular relationship, day-to-day contact, month-by-month contact or, indeed, contact every six months with Strategic Command. The regular interlocutors in the Department of the Prime Minister and Cabinet would have been the international division. Senator FAULKNER-Do not feel too badly about it, Ms Halton, because Air Vice Marshal Titheridge did not know about it either. He was quite shocked to find this document existed- Ms Halton-Really? Senator FAULKNER-from his own command, so I would not feel too guilty. Ms Halton-I did not know that. Senator FAULKNER-That is the point. I want to ask you a couple of questions about the photographs because you have indicated the significance of the photographs. What the photographs meant effectively for you was that you did not progress other issues including the chronology and the footnote? Ms Halton-Yes. Senator FAULKNER-I am interested in knowing the background to the checking of the photographs. Wearing your PM&C hat, could you confirm that the photographs were received in the Department of the Prime Minister and Cabinet on 9 October? I know you did not see them and did not know about them until the 10th, you have told us, but you can confirm for us they were received in PM&C on the 9th? Ms Halton-I am not aware of that. No, I understand that is not the case, Senator. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 987 Senator FAULKNER-I think it is the case. Ms Halton-Okay, well- Senator FAULKNER-The only reason is that no better authority than Mr Moore-Wilton said on page 51 of the Finance and Public Administration estimates Hansard: In regard to the Department of the Prime Minister and Cabinet, it is crystal clear-crystal clear-that officials were shown photographs on 9 October which they believed to relate to activities on 7 October. For that reason, they took the matter no further. I have no criticism for that. And on he went. So it was a very definitive and strong statement that Mr Moore-Wilton made to me in answer to a question I asked him. Ms Halton-I was not here through that process. I have not read the- Senator FAULKNER-I understand by that stage you were in another department-I know that. Ms Halton-All I can say to you is I would suspect that that refers to the 10th. I do not have any personal recollection of actively seeing the photos on the 9th-sorry, did you say the 9th? I beg your pardon, Senator; it is getting late. Senator FAULKNER-He said: In regard to the Department of the Prime Minister and Cabinet, it is crystal clear-crystal clear-that officials were shown photographs on 9 October ... And you said to you us today `the 10th'. I am trying to get to the bottom of this. Ms Halton-No, I don't believe that was the case. Senator FAULKNER-You do not believe Mr Moore-Wilton's evidence is correct? Ms Halton-I cannot comment on whether there is something else in the department of which I am not aware. As I said in my opening statement, I became aware of the existence of the photos on the 10th, which was the Wednesday-I am now starting to lose my grip on which day of the week it was-and we saw those the following day. Senator JACINTA COLLINS-In the meeting? Ms Halton-And otherwise. Senator JACINTA COLLINS-So you saw them directly at some stage? Ms Halton-Well- CERTAIN MARITIME INCIDENT CMI 988 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Can you provide evidence for the committee from a PM&C context-I am asking you to wear that hat if you would not mind for the moment-and from your knowledge in PM&C, when the photographs were first seen and who saw them? Ms Halton-I will have to confer with others, Senator, because my understanding has always been that the knowledge we gained there were photos was on the afternoon of the 10th and I think we have covered that to the point of- Senator JACINTA COLLINS-The 9th. Senator FAULKNER-No, the 10th. Ms Halton-The 10th. The 9th is the day I asked them to check the detail. The morning of the 10th is the day people were running around with chronologies et cetera and the afternoon I was interstate on business. The afternoon of the 10th was the day I arrived in the office at a quarter to five, the afternoon of the 10th is the day that there were the series of phone calls which resulted in the knowledge about photos, videos et cetera. My memory is not of seeing anything on that day but seeing it the next morning. Senator FAULKNER-There does appear to be a conflict here between what you are saying and the evidence that Mr Moore-Wilton gave about the 9th. I have quoted his comment to you and he was quite strong. He said it is `clear, crystal clear' that officials were shown the photographs on the 9th. Ms Halton-Senator, I think we can take that away and ask that particular person; it may just be a mistake of the date. Senator FAULKNER-In this circumstance I do not want to get bogged down on it. Could you please take on notice, in relation to the Department of the Prime Minister and Cabinet, when the photos were received in the department, who received them, where they came from and to whom and when they were distributed in the department? Ms Halton-My memory- CHAIR-In addition to that: and did they still bear their captions? Ms Halton-What I was going to say was that I do not know that we ever technically received them. My memory is that in the IDC sometimes people turned up with digital images which were passed around the table. Whether these were actually retained I cannot tell you. CHAIR-Did they have captions describing what they depicted, or dating them or timing them? Ms Halton-I actually think that if they did, Senator, I would remember it and I would have spotted the inconsistency. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 989 Senator FAULKNER-I think it is likely that they did not as well from what we know, and this of course is of concern itself-why the lead agency in the Commonwealth would rely on photographs without any contextual information at all? Ms Halton-As we have already covered, Senator, the reality is that when things are presented as representing particular things by people who are credible, have proved reliable over a period- CHAIR-Minister Reith? Ms Halton-It was not presented by Minister Reith, Senator; it was presented-like all this information-by the key interlocutor we had in that agency. That is my memory. I do not recall a batch of photos turning up. I recall a process- Senator FAULKNER-Hang on. The key interlocutor in that agency is who-Air Vice Marshal Titheridge? Ms Halton-That is our principal point of contact. Senator FAULKNER-So it was he who presented the photographs to you. Ms Halton-As I am saying, my memory on this is a little hazy and probably because in the morning, as you already know, and I think Senator Cook has made the point, they were on the front page of just about every newspaper-I think we have decided, haven't we, Senator? CHAIR-We have, and all of the television and radio. Ms Halton-Again, because that is out there I do not have a particular memory of this being a great issue or of great interest or what have you. Put simply, it was relatively old news so it would not have occupied any particular time or attention. Senator FAULKNER-Again, I find it somewhat extraordinary that these matters have not been checked through given that officials from departments, who are aware that we have got this committee of inquiry, know these sorts of questions are likely to be asked and it would be absolutely any witness's expectation-when departments first have these matters drawn to their attention or brought before them-that it seemed a fairly obvious, straightforward and logical question to ask. Ms Halton-I have answered that, and I have said to you that the first time I knew the photos existed was on the afternoon of 10 October. The first time I actually saw them was in the papers on the morning of the 11th. I anticipated precisely that question. Senator FAULKNER-Did anyone decide that the photographs should not come before the task force? I think you said they did not. Ms Halton-No, not that I am aware of. CERTAIN MARITIME INCIDENT CMI 990 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-They did not come before the task force; the task force did not look at the photographs. Ms Halton-As in beforehand? Senator FAULKNER-At any stage. I mean, whether you considered them. Ms Halton-Let us be clear about what you are asking. Senator FAULKNER-I am asking: at any stage did the task force examine the photographs-that is, have a look at them? Ms Halton-Did they forensically examine them? Senator FAULKNER-Not forensically- Ms Halton-Did they look at them? Senator FAULKNER-it is not an adverb I applied to it; it is one you applied. I am asking either forensically or not forensically. It does not appear that anything was done forensically, so I certainly would not put that demand on you! Ms Halton-That is your opinion. My memory is that on several occasions in the task force, agencies would come with digital photos printed on pieces of paper which were shown to members of the task force, often as context. For example, there was a picture of one of the vessels that had come from Vietnam. I remember being interested to see what a vessel that could travel that distance actually looked like. Digital photos were actually considered-your word, I think-and looked at in the task force. As to these particular ones, I do not particularly recall. In relation to the point you were making about whether we saw them, about footnotes or about any kind of descriptor on them, the thing I can say confidently is that had I seen a photograph with something that was demonstrably a different date to the one we knew the photo was to represent, alarm bells would have been set off. Senator FAULKNER-The Prime Minister was asked by gallery journalists on 10 October about doubts about the `children overboard' claims. He said he would find out more. I wondered if there was any follow-up with you or the task force. Ms Halton-I think I said in my statement to Ms Bryant that my memory of the 9th is not only of asking for Defence to investigate but of telling Mr Jordana that I had asked for that to happen. I think I have said to you already-maybe I have not said this-that I know, because I have checked my records, that on the evening of the 10th I gave an update on what had happened during the day to both Mr Jordana and Mr Moore-Wilton, from memory. I will check. But as to me explicitly receiving a phone call asking me to do a categorical check, I do not recall that. Frankly, I would have thought that unnecessary, given the process that we had going. As I have already said to you, in the evening meeting of the 10th we put the facts, as we knew them, to the group. No-one demurred, and I am pretty confident that those facts as we knew them would have been communicated to Mr Jordana. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 991 Senator FAULKNER-Are you aware of the quite numerous aggressive attempts by Mr Hampton to make direct contact with Commander Banks on board HMAS Adelaide? Were you aware of that at the time? Ms Halton-No. Senator FAULKNER-So that did not come to your attention? Ms Halton-No. Senator FAULKNER-Did you have any contact at all with Mr Hampton during the period from, say, early October through to 10 November? Ms Halton-Mr Hampton and I had contact. It was of the same variety that I have already outlined in relation to Mr Ingram. Senator FAULKNER-How much contact with Mr Hampton did you have? Ms Halton-About the same amount: very brief conversations, facts as we knew them. Senator FAULKNER-How many conversations would you have had with Mr Hampton over that period? Ms Halton-I cannot estimate. Senator FAULKNER-A couple a day? A couple a week? Ms Halton-It is very difficult to estimate. When there was a vessel, it would probably be once a day-maybe. When there was not a vessel, there was no need for me to be having any conversation with Mr Hampton. Senator FAULKNER-You may not have been aware of some of the evidence that was given to a previous parliamentary committee about the aggressive nature of Mr Hampton's interventions with some in Defence. Ms Halton-I seem to recall it got quite a bit of media coverage at the time, so I was aware of it. Senator FAULKNER-It did. I was not sure whether you saw it or not. That was not the nature of his communications with you, was it? Ms Halton-No. Senator FAULKNER-He was always very courteous with you? Ms Halton-Polite. I have never met the man. CERTAIN MARITIME INCIDENT CMI 992 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-What about Mr Scrafton? Any contact with him? Ms Halton-I do recall one face-to-face conversation with Mr Grafton when I was chairing a meeting of the Welfare Reform Consultative Forum. This was the other job that I was trying to do sometimes-it did not happen very often-and I was asked to have come and have a conversation with him, Mr Reith and Air Vice Marshal Titheridge in relation to a particular matter. In fact, I was probably even in this room, if I think about it. I was sitting about where you are. From memory, I only had one other conversation with him, which was on the afternoon of 10 October, which is when-as I think I have already said in my witness statement to Ms Bryant-following the news that there was a video, and having been told by Minister Reith that he had just told this to the press, I made a series of phone calls to confirm that what I had been told was accurate. Those phone calls led me to Mr Scrafton, who confirmed that that was accurate. Senator FAULKNER-What about the first conversation? When did that take place with Mr Scrafton in this room? The second one was 10 October. Ms Halton-At a guess, it would have been at the end of August. It preceded the disembarkation of the Manoora. Senator FAULKNER-Could you let me know what that was about, please. Ms Halton-It was about a discussion that was being had about how we might use the offices of a number of different agencies, particularly the police negotiators, to have the people on the Manoora disembark to Nauru. Senator FAULKNER-Were these matters that you raised with Mr Scrafton or Mr Scrafton raised with you or was it Air Vice Marshal Titheridge who raised the issues? Ms Halton-On that particular occasion there had been a series of discussions in the task force. I think I said earlier on today that there were occasions on which agencies did not agree with each other. There was-difference of view is too strong-a discussion between Air Vice Marshal Titheridge and me about the strategy and the tactics around removing people from the Manoora. He had told Minister Reith that I did not agree with him, and so Mr Minister Reith and Mr Scrafton asked whether I would repeat my views to them, which I duly did. Senator FAULKNER-The IDC had been established, obviously, by this point? Ms Halton-Yes. This issue had been debated ad nauseam in the actual IDC. CHAIR-I wonder if I could intervene for a moment. It is now nearly a quarter past 10. We are scheduled to turn into pumpkins at 10.30. Ms Halton-That was the scone we had earlier on, wasn't it? CHAIR-A pumpkin scone. That is a Queensland reference, I think. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 993 Ms Halton-You said `pumpkin scone'-I remember. Senator BRANDIS-In Queensland we eat nothing else. CHAIR-I would have thought the Queensland Liberal Party had a different view. Senator FAULKNER-There is a senatorial culinary flavour to pumpkin scones. CHAIR-Now we have all indulged our scone allusions, is there any indication you can make to us, Senator Faulkner, about how much longer you will be? Senator FAULKNER-I am battling through. I will be a little while longer. But if you and the witness would like to have a five-minute break, that would probably be a smart thing to do. I am hoping not to delay the committee. CHAIR-I am trying to get an idea of a reasonable finishing time. Senator FAULKNER-I am going to be as quick as I can but, because of unexpected interruptions, I will take a little longer. CHAIR-I am just trying to get an estimate from you, if you could give us one. I have not called Senators Collins, Brandis, Ferguson or Mason yet, and I have not had an opportunity, but I have already said something earlier to Ms Halton. Senator FAULKNER-I am more than happy to allow some other senators to ask some questions and come back into the fray at a later stage, if you want. Senator BRANDIS-That does not help Ms Halton very much though. Senator FERGUSON-We ought to have some idea of how long we are going to go. I know that we started later than normal but, because we started later, we have ceded most of the questions that we may have asked. It is not fair on the witness, having got here at half past two-although she did not start at that time-to expect her to be here forever, without giving any idea of a finishing time. Senator FAULKNER-The issue here is always whether we are better off batting through and finishing tonight, as opposed to asking the witness to come back. I do not mind that. CHAIR-We cannot ask the witness to come back tomorrow morning because we have already committed ourselves to an 8.30 start tomorrow with Air Marshal Houston, who has to be away at a certain time. Senator FAULKNER-Given that we are looking for a slightly longer period of committee deliberations, we could probably find a mutually agreeable time at some point. Senator BRANDIS-I favour that course. I think Ms Halton is an important witness, and she has been cross-examined by Senator Faulkner now for many hours. CERTAIN MARITIME INCIDENT CMI 994 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-She is not being cross-examined by anyone; some questions have been asked. Senator BRANDIS-She has been examined by Senator Faulkner for many hours. Senator MASON-You have a lot of stamina, Ms Halton; you have much more than I have. Senator BRANDIS-I think it might be better, frankly, subject to Ms Halton's availability, if we made arrangements to interpose her, obviously post Air Marshal Houston, tomorrow. Is that not possible? CHAIR-Our commitments tomorrow are such that a number of Defence personnel have to be out of here by a certain hour to meet commitments in Tasmania. Senator FAULKNER-We do have a bit more flexibility than we had before, so it is probably achievable. I know that this witness had difficulty finding time over this three-day period-it is appreciated. Ms Halton-I would prefer that we just keep going until we are finished. I am due to go to the OECD very shortly. I have a range of departmental commitments which would be extremely difficult to shift. I am conscious that you want to finish this evidence, so I am perfectly happy to bat on until we are done. CHAIR-All right then. Let us proceed. Senator FERGUSON-I do think we ought to have some sort of time limit. We do not want to be here at two o'clock in the morning. We ought to look at finishing at 11.15, or something like that. Senator FAULKNER-That will not solve the problems necessarily. Let one or two of the other senators have a go. Senator FERGUSON-Do you think you have got more than an hour of questioning to go? Senator FAULKNER-I fear so. Senator BRANDIS-We are talking about scheduling two additional hearing dates somewhat into the future. Ms Halton-No thanks. Senator FERGUSON-I think it is unreasonable to expect any witness to spend seven or eight hours under constant questioning. Mr Chair, the unions that you represent would not allow their workers to stay that long, so I think that it is unfair to ask Ms Halton to do the same thing. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 995 Ms Halton-Senator, all I can say to you is that there is a long and noble tradition in the Public Service of sitting in Senate estimates committees for many hours and that we are in training for just such an event. I am very happy to stay for longer. Senator FERGUSON-But that does not make it right. CHAIR-It does not make it right, I agree with that. And you are right about the unions that I represent: they would not allow it to happen either, but they would not allow me to be here. I have a few questions. I am happy to ask those and get myself off the slate. Perhaps I should do that. Senator JACINTA COLLINS-I have probably got only one small area to cover at this stage. CHAIR-Let me just go to a couple of questions that I have. I feel obliged to ask these questions, because I did make an observation about not being satisfied with some of the answers earlier, and this is an effort to satisfy me or deepen my disquiet. In your opening statement to the committee, you concluded with a small chapter called `The role of the People Smuggling Task Force'. In the third paragraph, you said: The PST was set up and run on the basis that it provided advice on policy and operational issues as they arose. One of the group's key jobs was information exchange to ensure that all agencies were kept aware of relevant and emerging facts. Is that the mission statement for the People Smuggling Task Force? Ms Halton-We have already canvassed in Senator Faulkner's questioning whether there were official terms of reference, and I have said there were not. The reality is that in the way one chairs a meeting one can set a tone and a style for its operations. I have said in that opening statement-and this is definitely the case-that I made an absolute point of ensuring that every department, and indeed the officials who came to that meeting, had not only the opportunity but the encouragement to bring forward relevant information, to have issues canvassed and to have matters debated fully. CHAIR-I am not going to that; I am going to something more primary. This interdepartmental task force, variously described as a high-level group, was convened for a purpose. All I am asking is: does that paragraph set out what, to the best of your knowledge, is the purpose for the establishment of this task force? Ms Halton-That is essentially my understanding of what we were doing. CHAIR-But you were not given written terms of reference? Ms Halton-No. CHAIR-But you were given to understand, when you were tapped on the shoulder to chair this body, that this is what you would be doing? CERTAIN MARITIME INCIDENT CMI 996 SENATE-Select Tuesday, 16 April 2002 Ms Halton-That is correct. Sometimes we were explicitly asked for advice on particular issues, and I think I have already alluded to that-in fact, I said it directly. CHAIR-So, in addition to your offering advice, you were regarded as a reference group for testing of views or offering opinion? Ms Halton-What I said earlier on, Senator, was that there were occasions on which the Prime Minister explicitly decided he would ask the view of that task force prior to taking a decision on a particular issue. CHAIR-There are two things you have said about SIEV4 which stick in my mind and I want to go back to that for a moment. I think the introductory remark you made about SIEV4 was the outstanding thing that occurred to you at the time, which was the report that most of the passengers on SIEV4 were wearing life jackets. Ms Halton-That is right. CHAIR-Why was that- Ms Halton-Why was that outstanding? CHAIR-of interest to you? Ms Halton-You made the observation earlier on, Senator-and I think this is where you and I started to differ-that you thought that was a function of the fact that the vessel might be rickety and they were doing that- CHAIR-I think I said it may be leaky, and a reason for wearing life jackets would be if you are in the middle of the ocean on a leaky boat. Ms Halton-Right. What was in the mind of officials was we had had an experience with the preceding boats, where groups of people were-and I think you have had a fairly extensive catalogue of this-presenting more challenging management issues as each boat arrived. We had not had a boat arrive, from memory, for about two weeks. There was an expectation in the group-and it is the task force that I am referring to here-that the next boat would be conceivably quite a difficult boat to manage. I think there had been discussion in the group that one of the tactics we expected to see at some point was that, as soon as a grey ship appeared on the horizon, the boat would be scuttled and that everyone would go in the water. So, when we heard that this particular vessel was characterised by a lot of people wearing life jackets, the context in which we thought this boat was operating was one where they were going to get up alongside, or even within sight of, the grey funnel line and someone would pull the plug in the bottom of the vessel. CHAIR-And it would sink. Ms Halton-And it would sink. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 997 CHAIR-Creating a safety of life at sea issue. Ms Halton-That is correct. CHAIR-For which, under international articles, you are required by any ship in the vicinity to provide a response- Ms Halton-To provide assistance, yes, that is right. CHAIR-and to save human life. Ms Halton-That is right. CHAIR-So am I right in thinking that what heightened in your mind this concern was the reported fact that these people were in life jackets? Ms Halton-That is right. CHAIR-In that advice that they may scuttle the vessel, was there any advice or apprehension by you or the committee that one of the possible actions they may engage in is threaten or throw a child or children overboard? Ms Halton-There had been a series of events, and there were subsequent events, of people ending up in the water. I recall a conversation with an officer in Strategic Command who had been in charge himself of a vessel out at Ashmore Reef. I remember saying to him after one such report to me that people ended up in the water, including children-and I am the mother of two smallish boys- CHAIR-And I am the father of four children. Ms Halton-I remember saying to this person, `This is not good. How did this happen?' and he said to me in a very matter-of-fact tone, `This is actually not particularly unusual. I have been out there. I have been in charge of a vessel and sailors have had to hop over the side and fish them out of the drink,' I think was his statement. He said, `This is not something which is particularly unusual.' I have already made the comment to Senator Faulkner that dealing with the military, and certainly matters naval, is not something in my career. I have had a lot of experience of delivered meals in nursing homes in my career, but dealing with the Navy and what goes on out at Ashmore Reef is not something that I have had a lengthy history in. So I was perturbed about the first few times that this occurred-and, as I said, I had this conversation with a particular officer in strategic command. So, yes, in the preceding boats, my memory is that we had had advice of people ending up over the side. I cannot say to you in the preceding boats that I was told that any children were thrown, because I do not believe I was-but certainly in subsequent boats. My memory of one of the sailors that testified in the people-smuggling case in Darwin is that that sailor gave CERTAIN MARITIME INCIDENT CMI 998 SENATE-Select Tuesday, 16 April 2002 evidence that someone had thrown a child over the side. I remember it actually being reported on ABC radio-I seem to hear everything on ABC radio- CHAIR-I am sure the ABC will be grateful for the reference. Ms Halton-You mean the one remaining listener! CHAIR-I do not think you are the only one. Ms Halton-There may be several more in this room. Anyway, we digress! Certainly, subsequently there were stories about people again over the side and children over the side. CHAIR-Let me come back to my question: when you were concerned prior to sighting this vessel that there might be a step-up in effort by the asylum seekers, was one of the things that you were concerned might possibly happen the idea that they might throw a child or children overboard? Ms Halton-Not that I can explicitly remember, no. CHAIR-So that was not a concern then. Was it a concern that there would be possibly a heightened `confrontation'? Ms Halton-My active concern was that they would sink the vessel and everyone on the vessel would end up in the water. CHAIR-And that was the concern? Ms Halton-If I go to my pre-eminent concern at that point, it was about sinking. CHAIR-I am only concerned about your concern at that point. You did not have a formal mission statement, but you understood your purpose. Would you categorise that as a policy or as an operational issue? Ms Halton-My concern? CHAIR-That here was a step-up in intention or confrontation-whatever is the right word. That is not a policy issue; it is more of an operational issue. Ms Halton-That would be my judgment, yes. CHAIR-You have given evidence that you heard on the ABC news a report that SIEV4 was fired on or may have been fired on-and as a consequence. That is an operational issue, too, isn't it? Ms Halton-That is correct. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 999 CHAIR-When you received the report that a child or children were thrown overboard, would you regard that as an operational issue? Ms Halton-I would. CHAIR-As far as operational issues are concerned, my understanding is-and please correct this if I am wrong-that you wanted to monitor what was happening at operational level- Ms Halton-Within reason, Senator. CHAIR-You needed to know what was going on. Ms Halton-Yes. CHAIR-Because if there were to be a change in the tenor or the level of confrontation by the refugees, or whoever it was-I think the evidence earlier was that it was orchestrated by the people smugglers but leave that aside-then you would need to consider from a policy point of view what changes there might be in response. Ms Halton-Possibly, but there was also an overriding operational concern, and that went to the amount of accommodation that was available on places like Christmas Island. It went to the issues that DIMIA manages on a day-to-day basis in terms of the number of ACM guards-I have already raised this-the amount of bedding that was available and the number of doctors and nurses who were available to provide people with care. It went to very practical operational issues. CHAIR-Yes, exactly. It went to issues such as-we heard from Commander Banks- whether we had an adequate supply of clean clothing and towels if people were fished out of the water. There were issues as basic as that. Senator JACINTA COLLINS-Nappies. Ms Halton-Yes. Babies' bottles, too, for that matter. CHAIR-Babies' bottles as well. I even saw on the ABC eye drops for conjunctivitis. Ms Halton-I could tell you about scabies at some point, too. We did that one as well. CHAIR-There were a lot of skin diseases. I understand that if one goes to the health conditions, both mental and physical, of the asylum seekers, it is not a pretty picture. But we are not going to go into that-at least not at this stage. So, when you received advice that a child or children were thrown overboard, this would be advice that would be categorised as operational advice? Ms Halton-Correct. CERTAIN MARITIME INCIDENT CMI 1000 SENATE-Select Tuesday, 16 April 2002 CHAIR-Did you inquire as to how this occurred and under what circumstances it had occurred? Ms Halton-In terms of forensic inquiry-back to the use of the word I used earlier-as to every single operational detail, no. As I have already outlined, our need for operational detail was in the context in which we were operating. We did not need to know which side of the vessel someone had gone off. We did not need to know chapter and verse on all of this. I have already said in evidence that we needed to know from an operational perspective if anybody had drowned, whether everyone had been retrieved and whether there were any injuries to either the asylum seeker or indeed the naval personnel. One of the things that we reflexively asked on any of these occasions was: had there been loss of life? Were we confident that all the people who had gone over the edge had actually been retrieved? I think we all know that, when there is a situation of confusion, you do not actually sit and catalogue every single person who is in the water. Those sorts of issues we did ask about. CHAIR-And you have received answers to all of those questions? Ms Halton-I received assurance that we need not be concerned, that people were safe and had been retrieved and that there was no injury. CHAIR-Did you ask the question: how many? Ms Halton-I recall asking them about how many. CHAIR-Did you get an answer to that question? Ms Halton-I did not. I think I have already said in evidence that one of the things the Prime Minister and Cabinet officers sought to do on Wednesday, the 10th was to try to sort out the contradictory information, which is included in that chronology and elsewhere in relation to the numbers. CHAIR-Did you ask a question about gender? Ms Halton-I recall being told something about gender; I do not recall asking about gender. CHAIR-What were you told about gender? Ms Halton-I recall being told that we thought it was largely men. CHAIR-Largely men? Ms Halton-People of the male persuasion. CHAIR-They are men, I think. Ms Halton-And possibly boys. One of the reasons- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1001 CHAIR-I just want to be clear about this. What were you told-that the child or children were boys or that the throwers were men? Ms Halton-No. I recall actually being told, `We didn't think any women had gone in.' The reason I was interested in that was that we all know that most of these women wear the hajib or something of that sort. The notion that somebody who is unlikely to swim-and, thinking about where most of these people come from, I think swimming lessons when you are in fifth class are improbable-and the notion of ending up in the water wearing a full hajib caused me some concern. CHAIR-Me too. I have raised that question. Ms Halton-I tended to ask whether any women or girls had gone in the water. CHAIR-When I am asking the question about gender-if I have not been specific about this, let me try to be specific now-to the proposition that a child or children were thrown, did you inquire as to what sex they were? Ms Halton-I believed it to have been a boy. CHAIR-You believed it to be a boy? Ms Halton-That is right. CHAIR-How did you acquire that belief? Ms Halton-Because of a conversation about gender in total and the particular questions in relation to whether any women or girls had gone over the edge. CHAIR-And this is boy singular, not boys plural? Ms Halton-I cannot be precise on that. I know and have given in evidence and said in my opening statement that I was told-and it is there in quotes from my diary note-that this was plural. I am quite clear that that is what I was told. The impression I had was of no girls and no women. Whether it was two, three or four, I have to say I did not have an impression. CHAIR-Given your concern about life jackets, did you ask whether they were wearing one? Ms Halton-My recollection is that I was advised that most passengers were wearing life jackets. I do not recall explicitly saying, `Did everyone who went into the water have a life jacket on?' That would have been in a context where I had already been advised that most of the passengers were wearing life jackets. CHAIR-Did you inquire, as to the allegation that the child or children were thrown in, whether they were wearing life jackets? CERTAIN MARITIME INCIDENT CMI 1002 SENATE-Select Tuesday, 16 April 2002 Ms Halton-No, I did not. CHAIR-Coming back to the operational elements of this, you were right that it would have been a qualitative change in behaviour if everyone was wearing a life jacket on the basis that they all were to jump in the water if they were turned back. Would it not also be a step up in the confrontation if there was a systematic effort to throw children in the water? That would also be a notching up of the confrontation. Ms Halton-Because I had not thought about it explicitly I do not think I had an opinion on that. I have already said that I had an opinion on the notion of sinking. Sinking was the thing that was at the front of my mind in terms of how things might be escalated. If I sit and reflect, as you have no doubt done-and I have done this at some length-why I did not ring Mr Jordana until 3.30 that afternoon, it was because it was against a framework where I was actually expecting the vessel to be scuttled and that had not happened and where I knew that people were safe. This was not something which I regarded, perhaps erroneously, as being sufficiently noteworthy that I needed to disturb anyone else's Sunday. CHAIR-Let me come back to my question because, with due respect, you have gone a long distance from it. If there was a systematic effort to throw children in the water would that have been an increase or a notching up of the tension and confrontation? Ms Halton-My understanding is that there were a range of strategies used as part of these confrontations. I was not on any of those vessels. We have seen recently some video that has been released. The description of some of the strategies and tactics used I found somewhat confronting on the odd occasion. I do not know, and I do not recall thinking to myself, that this was now such a quantum leap away from some of those other tactics. My principal concern was, first, that they were about to sink the entire vessel and, second, to ensure that there had been no loss of life and that everyone had been secured. As I have already said, I had a particular concern in that respect in relation to any women. CHAIR-This would have been an increase in the confrontation if that had occurred? Ms Halton-You are asking me for my opinion. My opinion is that any activity to summarily toss a child is a fairly significant step. CHAIR-Indeed. You are a mother and I am a father and we both appreciate that point. Ms Halton-Precisely. CHAIR-It would have been an increase in the confrontation had that occurred? Ms Halton-My understanding is that there were a range of behaviours that had been evidenced on the other boats, some of which were pretty confrontationist. To say that this one is materially different from some of the others is a matter of personal opinion. CHAIR-Your concern was that the boat may be scuttled? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1003 Ms Halton-Yes, it was. CHAIR-And you got advice that a child has been thrown overboard. Ms Halton-Children, kids, plural. CHAIR-You are thinking, `How are the refugees going to increase the confrontation?' It was reasonable to assume that that was how they were going to do it at this point of the encounter. Ms Halton-No. I did not think that. That might have been the process that you would have followed in your mind. I did not think that. CHAIR-You did not think of that? Ms Halton-I did not. I thought that in fact we were lucky so far that the boat had not been scuttled. In terms of where we might be relatively, we were relatively better off than I otherwise thought we might have been at that point. CHAIR-It did not occur to you that you were unlucky so far that a child had been thrown in the water? Ms Halton-I thought we were lucky that everybody had been retrieved and was safe. CHAIR-Going to the operational issues again, if the asylum seekers had conducted themselves in this manner-lined up four or five kids, thrown them over one at a time and said, `If there is any attempt to turn us around we will continue to do this process'; a sort of hostage situation-that would have been a significant escalation, wouldn't it? Ms Halton-You are now asking me to speculate on hypothetical situations. With due respect, I do not think that is appropriate. I am quite happy to talk about what I know about the circumstances and I am quite happy to talk about this particular incident and, to the extent that I know about them, other incidents, but to now start to talk about a hypothetical event which, to the best of my knowledge, is not a feature of this particular incident-or indeed others-I think is unfair. CHAIR-You may think that. I must say I have a different view, and let me explain why. You are the chairman of this task force that the Prime Minister interrogates from time to time. Ms Halton-Chairperson. CHAIR-Chairperson. Thank you very much for that correction. You are the chairperson of this task force that the Prime Minister interrogates from time to time that coordinates the government's response. Ms Halton-Can I correct you there? The Prime Minister never personally interrogated-in your terms. CERTAIN MARITIME INCIDENT CMI 1004 SENATE-Select Tuesday, 16 April 2002 CHAIR-No, of course. But through his department- Ms Halton-He sometimes sought advice. CHAIR-Yes. Ms Halton-Correct. CHAIR-You were alerted that there may have been a qualitative change because people were wearing life jackets. You became concerned that there was a report that shots may have been fired at the boat and that is why people were jumping from the boat. Ms Halton-Yes. CHAIR-It is reasonable not to ask you to speculate but to ask you as a responsible officer in charge of this operation of `providing advice on policy and operational issues'- Ms Halton-Yes. CHAIR-about the fact that there may have been under way as a consequence of the report that you had before you a further escalation. All I am saying is- Ms Halton-As a consequence? CHAIR-You had this report, that you said you had in front of you, that a child or children were thrown overboard. Ms Halton-Right. CHAIR-It is reasonable to say that you as responsible person thinking along the lines that you were-`How is this going to be escalated?'- Ms Halton-Where is this going? CHAIR-`Where is this going? Does this indicate a new and frightening trend?' All I am saying to you is that is a reasonable exercise of your responsibility in acquainting yourself with all of the issues. Ms Halton-I suppose the question I would put back to you is- CHAIR-It is no good putting questions back to me. Ms Halton-No, but it is relevant to what I am going to say. The question that I put back to you is that even if I had done that, which I did not-and I accept that that is where your mind goes logically; mine does not-at that point the Navy had rules of engagement; the basis on which it operated. They were the instructions it had been given by the Chief of the Defence Force, signed off by the Minister for Defence. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1005 Those rules of engagement governed everything that happened at sea. We all know that relevant commanders had a huge amount of discretion-rightly, in my view-about the circumstances and how they discharged those rules of engagement because the judgments that had to be taken were on-the-spot judgments which could not be informed, in this particular case, by a task force or indeed by anyone who was not physically there at the time. In terms of what we thought about this, our practice when there was a boat-as you already know-was to very often convene to provide advice. In this particular case, the advice we gave was on the operational issues about accommodation et cetera, whilst the issues played out at sea. There was nothing we could do about what was going on out at sea. It was a matter for the naval commander, consistent with the naval commander's instructions. CHAIR-Yes. All of that accepted, one of the jobs that you had was to also be aware of what the tactics and circumstances of these encounters were, and the Prime Minister did speak publicly on this matter. Ms Halton-Can I say that for particular briefings on `tactics and circumstances' I do not recall us giving detailed briefings on those issues. I think you have already heard evidence from DIMIA about the fact that they actually gathered information and did briefings in respect of people-smuggling tactics. I know that detailed briefing about what happened in particular incidents was also provided, for example, to the Minister for Defence. I do not recall a cataloguing of tactics and incidents by us as a task force for provision for the Prime Minister. CHAIR-But for any purpose at all. Let me be very frank with you. This is where I have the difficulty. What is exciting or interesting to you-what engages you, to be more precise-is that these people are wearing life jackets. Ms Halton-That is right. CHAIR-What engages you is a news report that shots may have been fired. What does not engage you is that children or a child had been thrown overboard and what this meant in the conduct of the refugees' confrontation with the Navy. That is why I find it, to be honest with you, very difficult to understand why that did not engage you-when your mission is, as you have said it, to advise on policy and operational issues-and why there were no-follow-up questions, Ms Halton. Ms Halton-As I have said-I do not know how many times this evening-we did ask those follow-up questions. You may or may not be satisfied with the answer. I cannot tell you anything other than the complete truth, and that is what I have told you. Whilst you have a different process in terms of the inquiry you may have made, we had several statements from Defence in relation to this being a matter of fact. The point that I have already made to you- and I have made it in my opening statement-is that the numbers of people on this vessel was clearly caveated. They said, `We can't tell you categorically whether this is right. We think it is this number but we may not be right.' But the other information was not caveated. At the end of the day, we worked on the basis that it was accurate. The thing that concerned me-and I have already said this-was the suggestion that people had thrown their children overboard in response to shots-that, in other words, they were basically trying to save their children from some form of fire. I did not know that there had been any fire. In fact, I thought to myself that, as a parent, if they were concerned about that issue, maybe that would explain their behaviour. CERTAIN MARITIME INCIDENT CMI 1006 SENATE-Select Tuesday, 16 April 2002 As it happened, we ascertained categorically that the shots were at a different time, and so the substance of that concern was not borne out. CHAIR-I am sorry; I find that all very interesting, but the Prime Minister made a curious statement that day. He did not endorse in the actual words- Ms Halton-Which day are you talking about, Senator? CHAIR-The day of the report. Ms Halton-The day of the 7th? CHAIR-The meeting was on the 8th, wasn't it? Ms Halton-There was no meeting on the 8th, Senator. CHAIR-Sunday the 7th? Ms Halton-There was a meeting on Sunday the 7th- CHAIR-Right. On that day the Prime Minister made a statement. Ms Halton-and there was a meeting on Tuesday the 9th and on the 10th. CHAIR-He did not endorse what Minister Reith said. In fact, he used what I regard as an interesting form of words, which were along the lines of `I wouldn't have people in this country that did those things'. Ms Halton-Yes. CHAIR-I have said this a couple of times, and I apologise for repeating it, but I have been a minister in circumstances where there is a crisis of sorts, and the Public Service-bless their cotton socks!-are in a professional way keen to keep the minister advised of all the details and not just some of them. Ms Halton-Yes. CHAIR-In my experience, ministers-not just me, but other ministers that I observe in action-are keen to find out all of the details. Ms Halton-Yes. CHAIR-The big mystery here is that the news that a child or children had been thrown overboard travelled with almost the speed of light. No questions following up how that happened, how systematic it was, what the nature of the confrontation was between those who may have done this act and the Navy, were ever explored. I find that extraordinary. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1007 Ms Halton-You might find it extraordinary, Senator, but the reality is that we had a picture in our mind which went to the nature of the event and which went to-we have already established-the gender of the people concerned. We have gone to the safety of the people concerned and, in fact, the circumstance you have outlined hypothetically of people being lined up across the top of the vessel and summarily held as hostages and pushed over the side was not the way this event was characterised. As far as I was concerned, and I believe my colleagues were concerned, the substance of the event was relatively clear. There was not any particular need-other than, as I have already said, when this new element in relation to shots was brought out-to pursue that detail. As I have already said to you- CHAIR-I will just go through this- Ms Halton-If I can finish please, Senator. CHAIR-You may finish, Ms Halton, but please finish promptly. You keep repeating it. Ms Halton-Okay. I have finished. CHAIR-You have made me lose my spot now. Ms Halton-We are equal now. Senator FERGUSON-That is because you are repeating yourself, Senator Cook. CHAIR-No, I am not. The Prime Minister said those words, as I have described them. Ms Halton-I did hear them subsequently. CHAIR-You did hear them subsequently. Someone in the department may have heard them and certainly the Prime Minister's press office heard them. It seems to be a reasonable thing to think that the Prime Minister might want to seek further detail. Ms Halton-As I have said to you, I was not asked for further detail. CHAIR-The other thing we have here is Commander Banks, who, I must say, presents to me as a commendable officer that I regard highly. Ms Halton-And Commander Banks was in fact a member of the Unauthorised Arrivals Task Force, so we know Commander Banks well. CHAIR-So I understand. He believes that no child was thrown overboard. Ms Halton-So he said in evidence. CHAIR-He believes that he never reported this matter. Senator FERGUSON-He said that he told Brigadier Silverstone. CERTAIN MARITIME INCIDENT CMI 1008 SENATE-Select Tuesday, 16 April 2002 CHAIR-He says he did not report it to Brigadier Silverstone. I am going on his evidence-I will come to Silverstone in a minute, Senator Ferguson. And when he saw the report he moved as quickly as possible to correct it. Brigadier Silverstone is at odds with Commander Banks as to whether or not it was reported to him. Brigadier Silverstone says-and I hope I am not inaccurate-that in a way that was not as important, when it was confirmed that no kids were thrown overboard, as correcting the record promptly and quickly so that everyone knew what the situation was. That is what Silverstone says, which I think is right. Senator FERGUSON-You had better check the quote. CHAIR-Check the quote. I am sure I have not got it right, but I am sure that is the gist of what he said. What he as a serving officer was saying is, `If we have got some advice, we pass it up the line. Bang! We learn it is wrong, we correct it straightaway.' It is a bit like the Mafia: tell us bad news as quickly as possible. Ms Halton-I could not comment on what the Mafia does. CHAIR-No, nor could I. I do not know the Mafia. I just read Mario Puzo. But do you follow what I am saying? Ms Halton-I think so. Keep going. CHAIR-Wrong advice, quick correction at operational level on the sea in Darwin, down the line. Ms Halton-Yes. CHAIR-But you are saying not to you. Ms Halton-No. Categorically not. CHAIR-And you are saying to me-here is where I have the difficulty-you made no further follow-up examination of what throwing a child or children overboard may portend as new tactics by illegal immigrants. Ms Halton-No. CHAIR-Maybe we should have a short break. Proceedings suspended from 10.54 p.m. to 11.01 p.m. Senator MASON-Ms Halton, I cited before from the final page of your opening statement: The PST was set up and run on the basis that it provided advice on policy and operational issues as they arose. One of the group's key jobs was information exchange to ensure that all agencies were kept aware of relevant and emerging facts. You have been keen tonight to assert continually to Senator Faulkner and others that you did not want to insert the People Smuggling Task Force into the chain of command. That is correct, isn't it? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1009 Ms Halton-Correct. Senator MASON-I then asked you whether you were aware of other SIEV incidents. Ms Halton-I was. As each new vessel arrived, we were notified of each new vessel. Senator MASON-Several hours ago, I think in response to a question from Senator Faulkner, you said that you received advice on other SIEV incidents from Air Vice Marshall Titheridge. Ms Halton-And others. Senator MASON-At what level of specificity were those reports made to the joint task force? Ms Halton-I think probably a bit like this one. There were details that were provided about particular incidents. A particular incident I recall was about the breaking of bottles and the using of glass. There was a series of vignettes, if I can describe them in that way, of behaviours and activity. Notwithstanding Senator Cook's desire that we had a blow-by-blow account of every event, we did not; we had a broad understanding of the nature of those events at sea as they emerged. Senator MASON-Can I ask you a specific question in relation to SIEV7. You spoke about vignettes. Let me put some vignettes to you. Were you informed, with respect to SIEV7, that a child was dropped overboard? Ms Halton-I cannot be categorical about which SIEV I was told there was a child over the edge from. I was told there was a child at one point, and I think I made a reference earlier on to evidence that was given by a sailor that was reported, I think, to the Magistrates Court in Darwin as part of the people-smuggling prosecution. In terms of whether I had a particular knowledge of that particular SIEV and all the details of that event, no. Senator MASON-Would your briefing have included this level of specificity: threats to children? Ms Halton-Sometimes. Senator MASON-Whether there was threatening or offensive behaviour on the part of unauthorised entrants to this country? Ms Halton-Most often. Senator MASON-Threats of suicide or self-harm? Ms Halton-Yes. Senator MASON-Sabotage or fire on vessels? CERTAIN MARITIME INCIDENT CMI 1010 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Yes. Senator MASON-Whether illegal immigrants actually went over the side or threatened to go over the side? Ms Halton-Yes. I have already given evidence about that. Senator MASON-Whether there was, for example, hunger strikes? Ms Halton-Yes. Senator MASON-And whether there was any violence against Royal Australian Navy personnel? Ms Halton-That was not covered in particular detail, but I was aware that on the odd occasion there had been some confrontations. I could not ever say I was told in graphic detail what happened. Senator MASON-That level of specificity would have been given to the People Smuggling Task Force with respect to all the SIEVs subsequent to SIEV4? Ms Halton-Senator, I would not want to be that categorical because sometimes that information was communicated from, for example, Air Vice Marshal Titheridge to me when he rang me about the latest vessel. Would there have been a general understanding of issues of the type that you talk about? Yes, I think that would be the case. Senator MASON-Thank you, that is fine. The claim is made-and it has been made again by Senator Cook-that this information about a claim on SIEV4 that a child was thrown overboard travelled at the speed of light. The implication was that the government made political capital from that. The question that keeps raising its head is that-I have just mentioned SIEV 7 but there are other very serious incidents, SIEVs 7, 9 and 10 and of course 12-Admiral Barry said they were operationally much more significant than SIEV4, yet until recently we had heard a bit about SIEV10 and none of the other SIEVs. Why is that? Ms Halton-You tell me, Senator. Senator MASON-The point is that all that information was not used for political purposes. Ms Halton-The comment I would make, and it goes to my remarks which some have taken objection to, is that the task force always operated in a manner which was completely professional and consistent with Public Service practice and values-and that is precisely the point I will underscore-in passing on, where relevant and appropriate, information to the minister. I cannot comment on the comment about the speed of light because, as I have already outlined, I was not aware of it. It is my understanding that people were informed about what actually happened in respect of each of these SIEVs. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1011 Senator MASON-The claim is made that both the military and the Australian Public Service were used to trawl through this information for political purposes, but that is just not right, is it? Ms Halton-I would not want to make any comment on that, other than to say that I think the task force at absolutely all times operated entirely properly and professionally. I have not seen any sign of what you just alluded to. Senator MASON-Thank you. Senator JACINTA COLLINS-Ms Halton, I would like to take you back to the telephone conversation and the recollections you have of that with Air Vice Marshal Titheridge. You indicated earlier that you had a recollection of asking some questions. Was that during the telephone conversation? Ms Halton-That is my recollection. I did have a couple of conversations with Air Vice Marshal Titheridge-and again I have checked my phone records that this was the case. What I cannot tell you categorically is that the information that we were going through earlier on was all gained in the one conversation. The thing that I am absolutely certain of is that the question I asked when I was first told about this was whether everyone was safe. Senator JACINTA COLLINS-Air Vice Marshal Titheridge tells us that he would have, in conveying that information to you, caveated it in terms of the nature of the report. Ms Halton-Certainly, as I think I have said in my opening statement, my memory is that he told me that the source of the advice was NORCOM. My practice was habitually to pass on that information. I have absolutely no doubt, whilst I cannot remember who said it first-and we have already covered all of that-that I would have said that Air Vice Marshal Titheridge had rung and told me that NORCOM had just advised him of the following things. NORCOM would have been the part of the operational system that would have known what was going on. Senator JACINTA COLLINS-Yes, but you have no recollection of a caveat to the extent that preliminary oral advice from the CO to the head of NORCOM said this? Ms Halton-No. I have a clear recollection that the advice was from NORCOM. If that is a caveat, maybe that is how it is being interpreted. This is advice from NORCOM. Maybe that is a caveat, but that is the context in which I remember the information coming. Senator JACINTA COLLINS-So in your mind there was no further caveat beyond that? Ms Halton-No, there was not. Senator FAULKNER-But you were aware of the special arrangement, as it is described- Ms Halton-No, I think I have told you twice already, Senator, that I was not. You put that question to me earlier. CERTAIN MARITIME INCIDENT CMI 1012 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-I know. You were not aware of the basis for the special arrangement? Ms Halton-No, I was not. Senator FAULKNER-When did you become aware of the special arrangement? Ms Halton-When I read the Bryant report, I think-it was either Bryant or Powell. Senator FAULKNER-And therefore for what it was put in place to do-in other words, to get advice for a media appearance? Ms Halton-You are saying to me, Senator? Senator FAULKNER-I am asking you if you were aware of that? Ms Halton-No. Senator FAULKNER-Not even aware of that now? Ms Halton-No. Are you saying that that is the case? Senator FAULKNER-Yes. But that is fair enough: you are making the point to me you do not know about it. Ms Halton-No. I do not know about that. Senator FAULKNER-I can only ask the questions, Ms Halton. I cannot provide the answers. Ms Halton-Fair enough. Senator JACINTA COLLINS-Ms Halton, if I then go to a further step in the discussion that we have had thus far about the caveats issue: Ms Edwards's evidence tells us that she notes in the evening discussions that Walker and/or Titheridge indicated that they had no further information to provide in relation to the incident. Ms Halton-Yes. Senator JACINTA COLLINS-That may well in part be reflecting on Walker's comments that you do not recall yourself- Ms Halton-No. Senator JACINTA COLLINS-that no other evidence existed at that point that he could find. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1013 Ms Halton-My understanding-and maybe I am wrong-is that the essence of what Group Captain Walker said was that he had advised that before Air Vice Marshal Titheridge turned up to the meeting. Maybe I am misunderstanding the essence of the evidence so far, but my understanding was that he had said that, he understood, in the earlier part of the meeting. I have covered it in the statement. You would know that Air Vice Marshal Titheridge turned up at the meeting, I think, about 50 minutes after it started. He was there for the large majority of the meeting. It went on for quite some time and he was party to the going through of that paper. I have already described that process. Senator JACINTA COLLINS-That is why I thought it was interesting to note Ms Edwards's notation classing Walker and Titheridge together. We will obviously discuss that further with her later on. When we move on to the line by line working through the report that was then provided to Minister Reith and the Prime Minister, can you provide to us-and I will understand if you cannot do it now-the detail of the change that was actually made in that process, or the line that you were referring to that referred to the child matter? Ms Halton-No, there was not a change in that area that I am talking to specifically. What I said in relation to the editing of that paper is that there were multiple edits to the paper. What happened was a draft skeleton of a paper was prepared during the day. That was tabled and then people made extensive edits. Senator JACINTA COLLINS-This is tabled in the evening meeting? Ms Halton-That is right. And then extensive edits were made to the paper. Again, what I did reflexively with pieces of paper like this was say to people, `Righto, let's start at the top. Line 1: any changes? Line 2: any changes?' and literally work through it line by line. I cannot say to you what the details of those individual changes were, and I frankly think it would probably be quite hard to find out, because, as you would know, with documents, unless you have saved them as separate things, you cannot necessarily retrieve them. But what I do know is that that document, and the way it is drafted in that background section with the caveat on the numbers and the lack of caveat on the other bit, was worked through line by line with the relevant Defence officials and it was cleared by them. Senator JACINTA COLLINS-I think you are probably aware that Air Vice Marshal Titheridge has said he was essentially concentrating on other issues and not the child issue in terms of that clearance. I suppose in a sense even your evidence today seems to provide some potential clarification of how that process may have been imperfect because, if I take you to, for instance, your statement to us today, you indicated that on 8 October or early on 9 October you heard a radio report that suggested that children may have been thrown overboard in response to shots being fired at a vessel. Ms Halton-Yes. Senator JACINTA COLLINS-You then say `The PST had not been advised that any shots were fired'. Ms Halton-That is right. CERTAIN MARITIME INCIDENT CMI 1014 SENATE-Select Tuesday, 16 April 2002 Senator JACINTA COLLINS-But in your report to the Prime Minister, this report that you went through line by line, the second paragraph says: Once in the contiguous zone, the HMAS Adelaide fired volleys on front of the vessel Ms Halton-Okay. Let me be clear-and maybe I have been a bit too truncated. In terms of the shots issue, my understanding of the radio report was that there were shots. As I understood it-you talk about volleys in front- Senator JACINTA COLLINS-This is what the report refers to. Ms Halton-Yes. What was alleged in this radio report is that there were shots at the vessel or over the vessel. I had no understanding of that. It goes to my point about why you might have thrown your children over the edge and what was being alleged in this radio report. I am sorry if I have been a little non-specific in that respect. But that got my attention. Senator JACINTA COLLINS-Your comment in your statement today is `The PST had not been advised that any shots were fired'. Ms Halton-I have been a little loose with my language. I apologise. Senator JACINTA COLLINS-All I am suggesting to you is that the clearance process for this report seems to have been a bit more imperfect than perhaps you earlier implied but certainly in terms of how Ms Bryant had reported it. Ms Halton-This goes back to the context. It goes to the questions that Senator Cook was asking earlier about why people did not pause and go back over every single event. He made the point about when he was a minister wanting to go back and forensically examine particular issues that were difficult or contentious. It sounds hollow to say it, but the reality is that people at this particular time were working sometimes 20 hours a day, managing incredibly complicated things. People were tired and did not go back over historical parts of this. Senator JACINTA COLLINS-You misunderstand the nature of my point here. My point is that the process was imperfect, for the reasons you have just said as well, but it has been used by some and, in part, probably in your submission as well as corroboration of the report. The point that I am making is that this report to the Prime Minister gave no real corroboration of what was in fact an oral report between Commander Banks and Brigadier Silverstone. Ms Halton-You are right. Essentially the photos from our perspective provided that corroboration. Senator JACINTA COLLINS-With respect, it is not just the photos. From your evidence today, it was a misrepresentation of the photos, the video and the statements. Ms Halton-Yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1015 Senator JACINTA COLLINS-It was those three things. What is unclear to us at this point in time is whether that misrepresentation was conveyed by Minister Reith or Air Vice Marshal Titheridge. Do your personal notes shed any light on that issue? Ms Halton-No, they do not, and I have examined them somewhat carefully. Senator JACINTA COLLINS-At this stage the only area of evidence that does shed some light on that issue is Air Vice Marshal Titheridge's claim that he had only, at that point in time, seen the four photographs portraying asylum seekers on the deck of the ship. Ms Halton-Okay. Senator JACINTA COLLINS-If he was part of your picture of photos, his evidence is, `I was not even aware of them at that point in time.' Ms Halton-I will take your word for it, Senator. There is no doubt that the thing that got my attention, particularly in the conversation with Minister Reith, was the business about the video. The rest of it, I cannot be categorical about. Senator FAULKNER-I have a question on this general issue of the brief that was prepared on the 7th that goes to the Prime Minister amongst others. Ms Halton-One other. Senator FAULKNER-Yes, that is right. That is detailed in places. We know it contains a certain inaccuracy, but there is quite a level of detail there. In relation to the detail, where does that actually come from? This goes to numbers, boarding- Ms Halton-Advice from the agencies. Obviously we go back to this notion of primary sources or who actually had possession of information. Essentially, those blanks were filled in by the relevant agencies. Senator FAULKNER-At the task force itself. Ms Halton-At the morning meeting, there was a series of information provided and options discussed and considered. There were some things that could not be resolved because there was not particular information available then and there. Individual agencies were asked to ascertain answers to particular questions or to gather particular facts. Senator FAULKNER-But not whether children had been thrown overboard? Ms Halton-No, because, as you would know, `children overboard' was not the focus of that paper. In fact, the focus of the task force was never `children overboard'. The focus of the task force was the day-to-day management of the issues-about accommodation et cetera. `Children overboard' was a side issue and context, but it was never the main business. CERTAIN MARITIME INCIDENT CMI 1016 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Other things were checked, but not children being thrown overboard. That bit was not checked. Agencies are asked to check all sorts of other details but not the one that, in retrospect, looks rather crucial. Ms Halton-Let me give you an example, Senator. People had been asked to check what was caveated by Defence, which was the number of people on the vessel. By the evening, there was still a need to caveat that information. The things that were being checked were things like: did we have enough beds; where were the ACM guards; when could they get to Christmas Island- things of that sort. People said, `We don't know.' So, when you were talking through options and handling issues, people simply could not answer those questions and had to go away and find out some information. Senator FAULKNER-I am making the point that they may well have gone and found out a lot of information, but one crucial piece of information that was not checked out was the issue of whether children had been thrown overboard. Other things may have been checked by agencies, but that was not. Ms Halton-We know that we asked them to check. We asked them on the 9th, and you know the rest of that story. Senator FAULKNER-I know about the 9th, but- Ms Halton-I suppose the point here is that at the time-and this goes to my earlier remark about the timing of my phone calls to Mr Jordana and to Mr Moore-Wilton-that particular issue, from my perspective, was not in fact particularly germane to the handling of the people on this vessel, if and when they arrived on Christmas Island. Senator FAULKNER-But this was happening not on the 9th but on the 7th. The original `Options for handling unauthorised arrivals: Christmas Island boat' brief was prepared over the period of 7 October, was it not? Ms Halton-That is right, and the issue that day was not the children overboard. Senator FAULKNER-No, but other elements of the brief have been checked by agencies. Ms Halton-Those went to the handling and strategy; they did not go to the background, other than numbers. Senator FAULKNER-But not `children overboard'. You accept that was not checked. Ms Halton-No-clearly. Senator FAULKNER-I want to ask about some other specific material that at some point was in the possession of the Department of the Prime Minister and Cabinet and/or the task force. I am not quite clear on this. I will ask you about DFAT sit rep 59 first, which is a key one in relation to the general SIEV4 issue. Do you know when that was received by your department or the task force? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1017 Ms Halton-My understanding is that the DFAT sit reps, which reflected information that people had rung in to DFAT, and they basically compiled it, would have been received-and I do not know the particular date-I should imagine by mid-morning on whatever day. You have obviously seen a copy of it and I know you have taken evidence about it before. Senator FAULKNER-But do they go to the task force? Ms Halton-They are, as I understand it, addressed to agencies. Whether or not they were tabled routinely in the task force-not to my memory. That does not mean that individual ones were not dealt with. Senator FAULKNER-But do you know who the DFAT sit reps normally go to in the department? Ms Halton-I would have got one; I would imagine that one would go to Social Policy Division; International Division would have got one; Mr Moore-Wilton would have got one. Senator FAULKNER-Would you know why the DFAT sit reps, including DFAT sit rep 59, did not prompt further questioning about the veracity of the `children overboard' claims? Ms Halton-In a word, no. Senator FAULKNER-PM&C gets them; you get them yourself. Ms Halton-I do not recall that particular one, Senator, but certainly they were received. Senator FAULKNER-I thought you said you got all of them. Ms Halton-My point is that we were at this point sometimes drowning in paper, so I cannot remember each of them chapter and verse. I am aware of that particular one, the one you refer to, although I have not physically reviewed it for some time. Senator FAULKNER-Sit reps 59 and 60 have been considered, in events leading up to this inquiry, the most relevant of the numbered sit reps. Ms Halton-I seem to recall you congratulating Dr Raby in relation to them. Senator FAULKNER-Did I do that? Ms Halton-You did. Senator FAULKNER-Did I do that tongue in cheek? Ms Halton-I was not here, Senator, so I could not see your face clearly enough to possibly comment. CHAIR-The trouble with irony is that it is not obvious from the text always. CERTAIN MARITIME INCIDENT CMI 1018 SENATE-Select Tuesday, 16 April 2002 Ms Halton-No. Senator FAULKNER-What about the process of such sit reps being forwarded through to the Prime Minister's office? What is the process there? Ms Halton-From my understanding, they were received by the Prime Minister's office and indeed all the ministers' offices. But we did not send them, so I cannot give you a categorical guarantee. Senator FAULKNER-I appreciate that. I assume they go direct from DFAT, but I wondered whether they might go via PM&C. Ms Halton-Not that I am aware. My colleagues advise me that we believe they gave evidence in Senate estimates that they did provide them to ministers' offices. Senator FAULKNER-Are your colleagues aware of the dates? Ms Halton-Can you be a bit more specific, Senator? Senator FAULKNER-You are saying that your colleagues have indicated that they were forwarded from PM&C to- Ms Halton-No. Senator FAULKNER-I just want to be clear. Your colleagues are saying that they went direct from DFAT to the ministers' offices. So that includes the Prime Minister? Ms Halton-That is our understanding, and we understand that there was evidence given to you in Senate estimates from DFAT about that. Senator FAULKNER-Do we know the date of that? Ms Halton-The date of the evidence? Senator FAULKNER-No. The dates that they were forwarded. Ms Halton-My expectation would be that the DFAT sit rep was forwarded to all interested parties when it was prepared and at the same time. So my expectation would be that if there was a sit rep produced it would have gone to whomever was on the distribution list at exactly the same time. But I have no personal knowledge of it. Senator FAULKNER-I am interested in knowing when sit reps 59 and 60 came into PM&C. You indicated that you and Mr Moore-Wilton did not precisely know that. There may be someone else in the International Division who might get this. I think that is the case, isn't it? Ms Halton-Yes. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1019 Senator FAULKNER-In relation to those two sit reps, could you take on notice when they come in and which offices they go to? Ms Halton-We have them here; we will have a look. Sit rep 60 has a fax line across the top of it that says `10.27 a.m. 9 October'. Sit rep 59 has a fax time stamp on it of `9.55 a.m. 8 October'. Senator FAULKNER-Does it say on those fax cover sheets what the distribution list is? Ms Halton-My point is that this is a bureaucratic distribution list, so it has the Treasury, the Department of the Prime Minister and Cabinet, the Department of Transport and Regional Services and the Department of Immigration and Multicultural Affairs. This is what I am saying about knowledge of ministers- Senator FAULKNER-I might call that a broadcast fax, or something like that. Ms Halton-Yes, exactly. So what I am saying to you is that we understand that it was provided to ministers' offices contemporaneously. I understand that you have taken evidence on that from Foreign Affairs and Trade, but I cannot say it to you categorically. Senator FAULKNER-I appreciate that. I am interested in what happens in PM&C. Could you take that on notice in relation to PM&C? Ms Halton-How about we do it on an exception basis, Senator. My understanding is that it would have been distributed to the people I have outlined. If that advice is incorrect or incomplete, we will come back. Senator FAULKNER-Thanks very much; I appreciate that. Your understanding, clearly, in relation to the Prime Minister's office, is that it goes at that point from DFAT direct. Ms Halton-That would be my understanding. Senator FAULKNER-If that is not the case-and, as I understand it, it is the case-again, on an exception basis, you may come back. Ms Halton-I am very happy to do that. Senator FAULKNER-Thanks very much. In the broad, were you getting any advice from International Division within PM&C? I do not know whether I am asking you wearing your `task force' hat or wearing your `Deputy Secretary PM&C' hat. Were you receiving any information or any advice relevant to the `children overboard' incident from International Division over the first week in October? I am specifically saying from the International Division of PM&C. Ms Halton-No. Senator FAULKNER-None at all? CERTAIN MARITIME INCIDENT CMI 1020 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I do not recall ever having had a discussion with International, or people from International, on that subject matter. I could be proved to be wrong in that regard, but I do not recall any particular advice on that subject. You are talking about that first week in October. Did someone from International come to raise it with us-or is there a particular issue that you are thinking of? Senator FAULKNER-No; I am just wondering, in the broad, what the situation was. Ms Halton-I think we have already canvassed, at some point in the recent past, that people from International did intermittently come to task force meetings. According to my records, as best as I can tell, no-one from International attended the task force in this particular period, and I do not recall any other separate conversations. I cannot be completely categorical, because obviously one talks to people from International all the time about a range of things. Senator FAULKNER-At the Senate estimates committee hearing on 18 February, I questioned Ms Bryant and Mr Moore-Wilton. I want to put this in context-I do not know if you have the estimates transcript with you. Ms Halton-No, I do not. Senator FAULKNER-I asked about so-called `informal advice'. I do not know if you are aware of this background. I asked Ms Bryant what she meant by that. She said: This was second-hand advice to me. My recollection of the context was that it was more an item overheard. I am not entirely clear about the context, but it was an item overheard by a departmental officer when at another meeting. My understanding is that it was not an item presented in the context of that meeting. I went on to ask her about it, and Mr Moore-Wilton said to me: Maybe I could be of some assistance here, because I queried this particular point. I understand that the second-hand advice was overheard by an officer attached to the Department of the Prime Minister and Cabinet's International Division. I do not know if you know this background. Then I asked who it was, and Mr Moore-Wilton said: I do not know the officer's name. I am sure that could be obtained. I understand it was overheard in the confines of a Department of Defence cafeteria or canteen during the course of a meal, a tea-break or something of that nature. Ms Halton-This is the tearoom gossip issue. Senator FAULKNER-Exactly. Ms Halton-Which was not the first week of October. I do not know whether that was where you were going, but you did say `first week of October'. Senator FAULKNER-I am sorry? Ms Halton-In your preamble when you asked me the last question you talked about the first week in October and whether there was `informal advice' to me. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1021 Senator FAULKNER-I did, but now I am going to the-what is the precise date of the so- called `tearoom gossip'? That is 7 October, isn't it? Ms Halton-I think we can now be pretty confident it was the 7th. My memory was unclear as to when it was but I think, based on examination of various departmental records, we can say pretty confidently it was the 7th. Senator FAULKNER-Can you give me the background to that? Ms Halton-I think the background is fairly well known. Senator FAULKNER-I have not had an opportunity to ask you about it. I have followed what Mr Moore-Wilton and Ms Bryant have said, and I have had the advantage of reading your letter, which was tabled in the House of Representatives and which also names the officer concerned. Ms Halton-In my conversation with Ms Bryant, she said to me that she had had a conversation with Harinder, who had had a report, as I recall it, from somebody. I do not recall the name. Senator FAULKNER-I am sorry, I think we have both blundered here. It is not October; it is November. Ms Halton-That is why I asked you earlier, because you said October. Senator FAULKNER-Did I say October? Ms Halton-You did, and that is why I asked you about whether you meant October or whether you meant November. Senator FAULKNER-Strike the word `October' from the record! Ms Halton-We now know what we are talking about. Senator FAULKNER-I just realised as I was talking to you that I must have said October. Ms Halton-As I have said, what Ms Bryant said was that she had been told by Ms Sidhu that an officer in Ms Sidhu's section had overheard some Defence officials in what I think she reported to me as a tea-break. You have introduced the notion of the canteen. I have to say I have not heard the notion of the canteen before, but tea can be had in multiple places, as we all know. Senator FAULKNER-I am quoting the original source of this, which was the Senate estimates committee. The first time I was aware of it was in the Senate estimates committee on the 18th. CERTAIN MARITIME INCIDENT CMI 1022 SENATE-Select Tuesday, 16 April 2002 Ms Halton-I do not think we are saying anything that is particularly contradictory. There is some informal element to this, clearly. Senator FAULKNER-How informal is it? That is the question. Ms Halton-The impression I have, and what I was told, was that it was an overhearing in the margins of a meeting when a meeting was in some form of a break. Senator FAULKNER-Are you satisfied that it was informal? Ms Halton-To the extent that Ms Sidhu is known to be a reliable officer, which she is, and to the extent that that is the story as I recall it being told, yes. Senator FAULKNER-And this was communicated through to Ms Bryant in the first instance? Is that right? Ms Halton-That is my understanding. Senator FAULKNER-You received the information, according to your letter, at 7.30 p.m. from Ms Bryant. Ms Halton-I thought it was at about 7.30 p.m. I believe it was probably more likely around 6.30. The reference point I have for this was there being some element of news at the relevant time, because I know where I was standing. As it transpires, I think it was probably around 6.30. The reason I think that is that, in checking Jenny Bryant's phone records, there is a record of a call from her to me at about that time. We cannot find any others so I believe, based on that objective evidence, that it may well have been about that time. Senator FAULKNER-Given that it says 7.30 in a letter tabled in the House of Representatives, I suppose I was depending on that. Ms Halton-Yes, and that is perfectly reasonable. Senator FAULKNER-You indicate in the letter that was tabled by Mr Howard in the House of Representatives that you were shocked about this. Ms Halton-Senator Collins has rightly corrected me about the shots of the vessel. It goes back to the conversation we had earlier about the photos, which I do not think had been discussed beyond that very early period in October. We have canvassed that very extensively. Senator Cook has already reminded me not to repeat myself, so I shall not repeat myself, but it has been a good month since that issue has been anything that I have given any active consideration to. Senator FAULKNER-You have not? Ms Halton-No. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1023 Senator FAULKNER-You made an opening statement before this committee today in which you said: While I was concerned at this gossip prior to my discussion with Mr Jordana my conversation with him provided me with reassurance. He did not seem concerned and he said the issue was in hand. Ms Halton-That is right. Yes, my comment was that over the preceding month I had not given the matter much consideration. So I do not think there is any conflict between- Senator FAULKNER-Over the preceding month? I just do not understand that. Ms Halton-Let us start again, Senator, because we are obviously talking at cross-purposes. Senator FAULKNER-No, we are not talking at cross-purposes. Let me ask the question in this way: I read what you said in your opening statement about it today-fair enough. I also read the letter that you wrote on 7 February that was tabled by Mr Howard in the House of Representatives where, with respect, the language is quite different. You say you are `extremely shocked' to hear this and today, while you are concerned with the gossip, `the conversation provided me with reassurance'. That seems to be quite different. Ms Halton-What I reflected in that letter was my very honest first reaction to something in a telephone call. With hindsight, I possibly would not use that kind of language again, but hindsight is a wonderful thing, as we all know, and I would suggest to you that it is the essence of this inquiry. Senator FAULKNER-Yes, but the phone call we are talking about occurs on-we think- 7 November. So you wrote that you are extremely shocked, but you wrote that on 17 February. Ms Halton-That is right. 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. As I have said in that letter, 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-and, again, I have reflected this here-that this issue had already been canvassed in the papers and that they were having a discussion with Mr Reith's office and, as I have indicated here, the issue was in hand. I have to say that I had not seen the particular report in the paper that day and had I seen that report in the paper-which, having seen it subsequently, I think included some rebuttal of that particular comment from, my memory is, the Minister for Defence's office-I probably would not have reacted to that phone call in the way that I did. However, I had not seen it and what I did when I got the phone call was do what I had done reflexively throughout this process, which was to ring Mr Jordana. I did not get to the end of that conversation with the same sense that I started the conversation. I 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. And-this goes back to Senator Cook's question earlier-nor was I asked to do anything about it. Senator FAULKNER-By whom? CERTAIN MARITIME INCIDENT CMI 1024 SENATE-Select Tuesday, 16 April 2002 Ms Halton-By Mr Jordana. Senator FAULKNER-That may be so, because what did Mr Jordana say to you in that phone call? Ms Halton-In a very calm voice he said that they knew about it, it was already in the press, they were talking to Mr Reith's office and it was under control. Senator FAULKNER-If you were extremely shocked at the time-you stand by that- Ms Halton-I said to you, Senator, in hindsight and if I was not at that particular point under some considerable pressure at home from members of the fourth estate, I probably would have reflected in a more careful fashion on the language. Senator FAULKNER-You mean on 17 February? Ms Halton-Yes. What I am saying to you is that my initial reaction was, `Oh, something else out of Defence I don't know about.' So, as I have said, I rang Mr Jordana. Senator FAULKNER-What was happening with the fourth estate on the 17th? Ms Halton-The fact that my house was being regularly visited by members of the press and there were photographers at my house. I could go on. Senator FAULKNER-And why was that happening on the 17th? Ms Halton-I do recall that there was a certain frisson of excitement in question time and certain people's names were being taken in vain. Senator FAULKNER-The 17th was a Sunday, wasn't it? Ms Halton-No, but it had been going on for quite some time. Anyway, that is ancient history. Senator FAULKNER-Fair enough. I am just trying to understand the background because the Senate estimates did not start until the next day which was the 18th. Ms Halton-That is right and I appeared with Health on the following Wednesday. Senator FAULKNER-That is why I am asking. There seemed to be more focus on this issue after the subsequent week, maybe not at your place- Ms Halton-Not at my place. Senator FAULKNER-So be it; I was not aware of that background. So you would not have used that terminology if you had reflected on it a bit more? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1025 Ms Halton-No. Look, as I have said, hindsight is a wonderful thing and one learns things from these experiences. Did I react strongly to that initial piece of gossip? Yes I did. Did I react in a way that I considered appropriate and proportionate? Yes I did: I passed it on. I had reassurance and again I reflect on this letter and the thing I did not include in it was the fact that, when I made that phone call, I was reassured. So it is history. Senator FAULKNER-You use the terminology `extremely shocked' because you are aware of the significance of what was being said to you about the photographs misrepresenting the incident. Ms Halton-The misrepresenting of the photographs was a significant issue. Senator FAULKNER-Exactly. In fact, was that the day of the Prime Minister's Press Club speech or was it the day before? Ms Halton-No, it was the next day. As I recall it, there was Mr Beazley one day and the Prime Minister the next day. Senator FAULKNER-That is right. Ms Halton-I recall having to eat two Press Club lunches in two days. Senator FAULKNER-Commiserations. Ms Halton-I should not say that too loudly. CHAIR-We've all been there. Senator FAULKNER-It's all right; I am a member of that Press Club- Ms Halton-Are you? Good for you. Senator FAULKNER-so I suppose I have to admit a pecuniary interest, as opposed to a culinary interest. You are certainly aware of the political significance. Let's not beat around the bush: this is a politically significant matter that has been drawn to your attention-the fact that the photographs misrepresent- Ms Halton-May. There is gossip that they may. Senator FAULKNER-Yes, gossip that they may. Having heard that and after Ms Bryant reporting it to you as her superior in the department, 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? Ms Halton-Let's be clear: I had gossip now about sixth or seventh hand. As you rightly know, it caused me to react and to do something immediately with it. At the end of that CERTAIN MARITIME INCIDENT CMI 1026 SENATE-Select Tuesday, 16 April 2002 conversation, I had my concern effectively dealt with because, as you rightly pointed out, we were just out from an election and I was told that the matter was being addressed. I was also told that it was in the press. I probably should go through and find the press article to reacquaint myself with what it actually said. Let me see if I can find it. When I looked at this press report, it said, quoting the minister, that there was no reason not to believe the reports he had received from senior officers in the Navy and it says `a spokesman for Mr Reith said last night'. In other words, this gossip or allegation had clearly already been put to the responsible minister and the responsible minister's spokesman had, as far as I read the report, denied it. Senator FAULKNER-So you are at the Press Club on the 8th. You hear the Prime Minister's speech. You hear his unequivocal response when asked questions about this. Didn't that set the alarm bells ringing, given what you had heard the day before from Ms Bryant about the fact and had passed on to Mr Jordana? Didn't you think this ought to be corrected? Ms Halton-Actually, no. I will tell you why. You might recall-maybe you do not-that in that particular Press Club experience there was an interjection from the floor when the various members of the gallery were asking questions, and it was something about asking the sailors. I remember thinking to myself, `We have done.' You and I both know that that was not as I had been led to believe, but I can remember thinking to myself, `Yeah, we did.' I can quite consciously remember it. In fact, I said to somebody some time ago that I have absolutely no memory of leaving that Press Club lunch feeling in any sense that the Prime Minister had misled people. I did not have that sense at all. As I said, if you think about it, there were three legs to this: the photos, the video, the statements. My understanding of all this was founded on those elements. CHAIR-None of which you had looked at. Ms Halton-No. Again, because this was the advice we were given by officials and because, as we have already canvassed in some detail, the material business- Senator JACINTA COLLINS-The officials or the minister? Ms Halton-The officials. Senator JACINTA COLLINS-You said, `This was the advice we were given by officials,' but your earlier evidence is that you are not clear if it was the minister or Titheridge who was referring to those three things. Ms Halton-Let us be clear. There is the first advice that they exist, and then there is subsequent discussion about all of those issues. Senator JACINTA COLLINS-There is a difference between existence and what they actually purport to portray. Ms Halton-We can go back and speak categorically about that first advice, which you have said-based on your understanding of what Air Vice Marshal Titheridge has said-must have come from the minister. I cannot deny that, because there are bits of this I cannot recall. I can recall the minister raising with me the video, categorically. I have already made the point that I CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1027 did not actually turn my mind to this issue at all in the period between, probably, the end of 10 October and when this re-emerged on the 7th. I had not given it another thought. So, in terms of where it was pigeonholed-if I can put in that way-in my mind, it was pigeonholed in a category that said, `Video, photos, witness statements-and no doubt.' It was not something where I had actively- CHAIR-Who told you that, though? Who told you that all this added up to proof that they were thrown overboard? Ms Halton-But there was not a question of actually finding proof. You are asking me- CHAIR-But you are citing these three things-photos, video and witness statements-as reasons why you were satisfied that evidence existed. My question is: who led you to believe that that was evidence that children were thrown overboard? Ms Halton-You are suggesting that we had been seeking specific evidence in an environment where we doubted this to be the case. CHAIR-No, I am not suggesting that. Ms Halton-I am sorry. I misunderstood you. CHAIR-I am not suggesting anything; I am asking you a question and the question is: you have consistently cited these things as reasons why you did not take it any further, and the implication- Ms Halton-Why there was no doubt in my mind. CHAIR-is that it was because that settled the issue for you. What I am asking you is: who led you to believe that it did? Ms Halton-I go back to my earlier comment. Firstly, it did not need to be `settled' for me, because I did not doubt it. But in the process of chasing various other things we came into the possession of the knowledge that there were the following elements to that story or that part of this whole sequence of events, and, in an environment where I did not doubt it to be the case- never doubted it to be the case-but had stored away- CHAIR-You presumed that it did. Is that what you are saying? Ms Halton-I did not doubt it. Senator FAULKNER-But you doubt it by 7 November- Ms Halton-I do not know. Again, I do not doubt it. I get told something which is tearoom gossip. I react to that tearoom gossip, understanding, precisely as you have said- CERTAIN MARITIME INCIDENT CMI 1028 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-You say in the letter that you were extremely shocked, but now you are not extremely shocked. Ms Halton-I probably would not have chosen that language had I the time to reflect on it more broadly. But did I react strongly? I reacted strongly. I have said that to you. What I am saying to you is that, with that concern that I had, I rang Mr Jordana. He said the issue was under control; they were talking to Minister Reith about it. He told me this was already in the press. So in fact what I was telling him was not news. I thought I had something which he did not know. I did properly what I would do under those circumstances and what I did right throughout this process, which was to provide information. Senator FAULKNER-But you also ring Mr Moore-Wilton the same day? Ms Halton-Again, this is where my memory is not as clear, and I suppose it is a bit like the question Senator Collins was asking me about who told me about the bits other than the video. My clear memory is of ringing Mr Jordana and having this conversation. I remember getting to the end of the conversation and thinking, `That is okay-relief.' I think I tried to ring Mr Moore-Wilton and I think I did not speak to him but left a voice mail message. But on that point-and again I have said this very openly-I cannot recall. Senator FAULKNER-The Prime Minister made the point in the parliament, didn't he, of, if it was so important to you, why did you just leave a voice mail message? Ms Halton-Indeed, I am aware of those comments. As I have explained to you, I think, had I had the time to reflect in a calmer environment on the material I included in that letter, I would have actually included the point about the reassurance I got from the conversation with Mr Jordana. Senator FAULKNER-You write this letter on 17 February this year-you said you were under pressure-there is media at your home and all this sort of thing. Ms Halton-That is right. Senator FAULKNER-Why do you decide to write the letter to Mr Moore-Wilton? Ms Halton-Because I was asked to. Senator FAULKNER-Who asked you to do it? Ms Halton-Mr Henderson. Senator FAULKNER-Did you ask Mr Henderson why he asked you to write the letter? Ms Halton-They were conscious that they had Senate estimates appearances coming. And, as I have said in that letter, Ms Bryant did not ask me anything in relation to this issue at the time of the inquiry-and, frankly, in an environment where I was absolutely confident we did not know this was not the case and we did not have- CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1029 Senator FAULKNER-This- Ms Halton-Can I finish, Senator? I have got a train of thought here. Senator FAULKNER-I am just worried about being pressured for time. Like you, I would like to finish this tonight and not be pressured. So let us do that and let us not be pressured. Ms Halton-Okay. Now I have lost my train of thought completely. The point I was trying to make was- Senator JACINTA COLLINS-Why you wrote the letter. Ms Halton-that, as we had had no doubt-and there was never any notion in our minds that there was any doubt that we held, so the events of that period immediately- Senator FAULKNER-Who is `we' here? Ms Halton-Sorry, we-the Department of the Prime Minister and Cabinet-did not have a doubt about this incident. I did not have a doubt, and my understanding is that all of my colleagues did not have a doubt. I am not using the royal `we'; I am referring to the department. Senator FAULKNER-I just want to make that clear. Ms Halton-Essentially, to be honest, that did not seem germane at that particular time. But I did not know some of the other evidence that you took in Senate estimates about other phone calls that had been made and other information that was being- Senator FAULKNER-You wouldn't. Senate estimates had not been held. Ms Halton-Precisely. So I did not raise this. I was not asked about it in my interview with Ms Bryant in December. When the interest in all of this event started, and when I was reflecting on the evidence that was in the Bryant report, I reflected to one of my Prime Minister and Cabinet colleagues, from my memory, that there was of course this particular issue in relation to the phone call-I was not sure about the date, whether it was on the 7th or the 8th-and Mr Henderson said, `Well- Senator FAULKNER-Is he the colleague you reflected this to? Ms Halton-I cannot recall whether it was him or indeed someone else, but I can just recall having a conversation in the department. Mr Henderson said to me, `You had better put it on paper and give it to me.' And I did. Senator FAULKNER-So that was his suggestion. When did he make that to you? Ms Halton-My memory is it was that weekend. As you have already observed to me, Mr Henderson of course leads the Department of the Prime Minister and Cabinet in Senate estimates. CERTAIN MARITIME INCIDENT CMI 1030 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Yes, but this letter is not provided at Senate estimates; this letter is tabled in the House of Representatives by the Prime Minister. Ms Halton-I was not party to any decision about what was to be done with it. It was provided in the context of Senate estimates. Senator FAULKNER-You were not uncomfortable when it was tabled in the House of Representatives, given that you had given the information as background for the Senate estimates committee? Ms Halton-I suppose, if the mark of a good public servant is invisibility, I think that was not necessarily consistent with my expectation, but in terms of the substance of it, no, I had no problems with that. I was not asked about it and, indeed, I was not told about it. Senator FAULKNER-So you just saw it on the media, did you? Ms Halton-I think I actually saw it watching the parliament that day. Senator FAULKNER-Were you surprised? Ms Halton-A little. Senator FAULKNER-Why only a little? No, I am serious: why only a little? Why weren't you a lot surprised? Ms Halton-I think we have already established that the use of more colourful language is not always desirable-but I was surprised. Senator FAULKNER-Anyway, what happens is Mr Henderson rings you and suggests you write a letter about these incidents. He does that on the weekend of the 16th and 17th- Ms Halton-Do not hold me to precisely when it was. Senator FAULKNER-You think he does that on the weekend of the 16th and 17th. Ms Halton-Yes. Senator FAULKNER-You certainly write a letter dated the 17th. Ms Halton-That is right. Senator FAULKNER-Do you provide it to him on the 17th-on the Sunday-or the Monday? Ms Halton-My memory is I handed it to him on the 17th. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1031 Senator FAULKNER-You handed it to him on the Sunday and it is tabled in the parliament the next day. Ms Halton-I take your word for it. I do not recall exactly when it was tabled. Senator FAULKNER-Well, it is tabled in the parliament. Did you ever take the precaution of actually checking with the officer herself, Ms Harinder Sidhu, about whether there is any truth to this? Ms Halton-What do you mean by `truth'? Was the material- Senator FAULKNER-Ms Bryant passes on what she is told by Ms Harinder Sidhu. That is right, isn't it? Ms Halton-Yes, on what she had been told by- Senator FAULKNER-Did you take what Ms Bryant said at face value or did you go back to Ms Harinder Sidhu and ask for further background? Ms Halton-My understanding is that there were a couple of social policy officers involved in that discussion with Ms Sidhu. It was not a conversation one on one; there was a conversation which had had witnesses. Senator FAULKNER-Who were the other officers involved? Ms Halton-My understanding is Ms Wildermuth. Senator FAULKNER-Anyone else? Ms Halton-I think that would be it. Senator FAULKNER-So it was Ms Wildermuth and Ms Sidhu. Did you take the opportunity to speak directly to either of those officers about what they heard? Ms Halton-No. I cannot recall whether Ms Bryant had me on speakerphone but I had the impression that she had Ms Wildermuth either immediately with her or in the vicinity. Senator FAULKNER-Wouldn't it have been a sensible precaution to raise it with one of the officers concerned? Ms Halton-In a sense of ensuring that the message was reliably passed? Senator FAULKNER-Yes, and the fact that you are a dep sec of PM&C, a senior officer, and you are also writing about it in a letter that is to be used in Senate estimates-in fact, it was tabled in the House of Representatives, but for use in the parliament. In the circumstances, given the incredible sensitivities about this issue-which you are feeling, given that you have got media at your door and the like on the 17th-again, it is one of these things I find CERTAIN MARITIME INCIDENT CMI 1032 SENATE-Select Tuesday, 16 April 2002 incredible, that you would not check it out beyond Ms Bryant. I am not suggesting that Ms Bryant is unreliable at all, but it would just seem sensible to go back to primary sources. Ms Halton-Let us make a distinction here between the writing of the letter and the telephone call to Mr Jordana. I had received a telephone call and I made a telephone call. I made a telephone call which I considered to be a proportionate response to the telephone call I received. I did not write that letter without confirming precisely with Ms Bryant, and I read her that particular bit to ensure that I had actually accurately reflected it. Indeed, I had had a conversation with Ms Wildermuth about that. Senator FAULKNER-So you did talk to one of the officers concerned? Ms Halton-Before I made the call to Mr Jordana, no. I had spoken to Ms Bryant. My understanding was that Ms Wildermuth was party to that conversation. I understood that, if I was not on speaker, Ms Wildermuth was in the vicinity. I had written a draft of the letter and I rang Ms Bryant and I said, `I want to read you a particular paragraph, to be completely confident that this is an accurate recollection of what you said to me and what you had been told'-and she said it was. Senator FAULKNER-I am not suggesting that it is not accurate. I do not know. But one thing that is obvious is that Ms Wildermuth's name is not there. Ms Halton-No. She was a third party in this. The direct chain of information was something that Ms Sidhu said and that Ms Bryant passed on. At the end of the day, one could put a vast catalogue of names in here. In terms of the principal chain of communication, I have already said to you that I do not know the name of the more junior officer who was party to the conversation, and it would therefore be inappropriate for me to reflect that. You asked whether, in respect of the letter, I had confirmed those details; I am telling you that I did. Senator FAULKNER-But now you would not write a similar letter. Is that what you are saying to us-you would write a different letter? Ms Halton-What I am saying to you is that I would choose my language in one area more carefully, and I would have made it more complete in respect of the particular issue about the state of my concern-`anxiety' is the wrong word-following the conversation with Mr Jordana. Senator FAULKNER-But it was only important enough to leave a message for Mr Moore- Wilton; it was not actually important enough to speak to him about it directly? Ms Halton-No. I think, as I have said, having been told by Mr Jordana that this was in the press-again, that press article clearly indicated that this allegation had already been put to the minister's office, and I believed from the implication of what was written here that a spokesman had issued a particular statement-it diminished in terms of its significance. Senator FAULKNER-Did you regularly talk to Mr Moore-Wilton about your discussions with key players like Mr Jordana and Mr Reith? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1033 Ms Halton-I had very few conversations with Mr Reith-I should say that very clearly. When I had one of those conversations, it was my practice to tell Mr Moore-Wilton-this is on the `no suprises' basis-that I had had one. With Mr Jordana, there was obviously more regular information exchange but, as I have told you, my practice was to pass information to both Mr Jordana and Mr Moore-Wilton-clearly not in the same conversation, but one following the other. My practice was to say, `I told Miles that,' or `I am about to tell Miles that,' depending on who I spoke to first. Senator FAULKNER-You speak in this letter about `consistent with my practice of keeping you informed'. `You' here is Mr Moore-Wilton. Ms Halton-That is right. Senator FAULKNER-What was the interplay like between you and Mr Moore-Wilton on these sorts of issues? In other words, how did your discussions with other key players, whoever they might be, and Mr Moore-Wilton's discussions with key players affect your role as the chairman of the IDC and his as secretary of the department? Ms Halton-I will give you a couple of practical examples. We have already talked about the meeting of the 7th. I made a number of calls to Mr Moore-Wilton on that particular day. To give you an example, I rang him in fact before I rang Mr Jordana-we have already covered that call, on which we do not agree. I informed you that it was at the end of the period when I had dictated a very rough cut first skeleton of the particular paper, and on that particular day I rang him at that point. I made several more phone calls to him during that evening. Senator FAULKNER-There is a lot of tick-tacking, which is fair enough, between you with your role and him with his role. That was basically the way it worked, wasn't it? Ms Halton-That is right. Senator FAULKNER-On this particular issue that we have just been canvassing about the information you received via Ms Bryant from Ms Sidhu, was it enough, was it sufficient, to leave a voicemail message? Ms Halton-I suppose this is an issue which, in retrospect, we might take a particular view on but, again, I go back to the context. I had been given this piece of information. I had a reaction to it, which you all know about. I made a phone call to Mr Jordana. In the course of that phone call, I was told that they were in conversation with Mr Reith's office, that it was already in the press and that it was in hand. I refer you to the contents of the media report- which, as I said, I had not seen beforehand but I certainly saw immediately afterwards-which went to the rebuttal of that particular issue. In terms of its immediate prominence-and it is probably a failing of human memory-I do recall very clearly the phone call because it pulled me up short. In terms of that follow-on, I did not have a huge concern. Senator FAULKNER-Do you believe he got the voice mail message? Ms Halton-I do not know. CERTAIN MARITIME INCIDENT CMI 1034 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Have you ever asked him? Ms Halton-He says he does not remember it. Senator FAULKNER-He says he does not remember it. So, when you say you do not know whether he got the message, you know that he does not think he got the message. That is a bit different, isn't it? Ms Halton-Again, this might well go to what would have been the essence. As I say, this is where my memory is imperfect and that is a shame. Essentially, this was now not really a particular story. So I think I rang him, but I cannot tell you categorically, `I rang him.' I cannot say that, but I believe I did. What I believe I would have said is, as you now know, that this was being dealt with by the office and that the issue was in hand. Senator FAULKNER-With respect, you do have an obligation here as a senior officer- who, I admit, is asked by your fellow dep sec in PM&C to write a letter. But this letter was tabled in the parliament and I think you would accept, wouldn't you, that the same obligations are on you in relation to that sort of written material as there are in relation to the evidence that you give here? You have to ensure that it is accurate, and if you feel it is not accurate you should correct it. Ms Halton-As I have said, I did not know it was to be tabled in the parliament. I have already told you that. Senator FAULKNER-Yes, I know. But you thought it was going to be used for Senate estimates anyway-as background, I assume, not tabled. Ms Halton-Yes, that is right. As I have said to you, in terms of the matters of fact in there- which went to my checking with Ms Bryant that I had accurately reflected those issues-I checked my memory, as I have already said in that letter. I was at home; I was in the family room, and my husband remembers this. Senator FAULKNER-I have read that in the letter. It was tabled, wasn't it? That is the thing. Ms Halton-It was tabled. Senator FAULKNER-Do you believe, given that it was tabled, that anything warranted correcting advice? Ms Halton-No. Senator FAULKNER-Have you had any discussions after the event with Mr Moore-Wilton in relation to the `children overboard' and associated issues? You have not about the voice mail. Ms Halton-No, other than his memory and my memory. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1035 Senator FAULKNER-Other than that he does not think he got it. Ms Halton-Yes. That is my memory of the conversation; he does not recall it. Senator FAULKNER-Have there been any other discussions about that? Ms Halton-No. Mr Moore-Wilton and I have, obviously, seen each other at secretaries' meetings and a number of other occasions. We did have one conversation that I can recall in relation to this issue where he said to me-in relation to whether Defence had ever told him that there was any doubt about this-that he had never been advised that there was any doubt. I said to him, `That is exactly the same position I am in, because they never told me that there was any doubt.' He said, `The process will now just unfurl.' Senator FAULKNER-When did you have that conversation with him? Ms Halton-It must have been around the time the inquiry was starting to kick off. I cannot really recall, to be quite honest. Senator FAULKNER-What about in the post-election environment when the Prime Minister was requesting the task force to undertake an inquiry? That is the one undertaken by Ms Bryant. Ms Halton-That is right. Senator FAULKNER-Who decided Ms Bryant would prepare that report? Ms Halton-You have seen that letter which asked for an inquiry to be undertaken by the task force? Senator FAULKNER-Yes. Ms Halton-I was shown that letter by Mr Moore-Wilton following its receipt in the department and I said to Mr Moore-Wilton that I would imagine that, given the task force itself might be in some way the subject of part of that inquiry, it would probably be advisable for the job to be delegated to a particular individual-in fact, I recall saying this to him-who was not here or who was not party to that series of events. Ms Bryant, as I think she might have told you in the evidence, was actually on leave in that week. Senator FAULKNER-Was it your recommendation to Mr Moore-Wilton that Ms Bryant conduct the inquiry? Ms Halton-I do not actually specifically recall recommending Ms Bryant. I do recall saying that I did not think that the task force should do it. I thought that that was probably ill-advised. How one alighted on Ms Bryant, I do not know. I suspect it might have been through a process of elimination in terms of who was there during the particular week, and she explicitly was not. CERTAIN MARITIME INCIDENT CMI 1036 SENATE-Select Tuesday, 16 April 2002 Senator FAULKNER-Before we move off this and hopefully wind up pretty soon, just in relation to this Sidhu-Bryant-Halton communication, if you like-I think we both understand what we mean by that-what importance did you give to that information? Ms Halton-As you know from my reaction, in the first instance I gave it the same sort of importance I would to some new piece of information that went to some of the things I had understood. That is why I reacted as I did. It was tearoom gossip; it was not anything more than that. I responded by making the phone call which I have outlined. It left me with, firstly, the information about the press report, secondly, information that it was being discussed with Minister Reith's office, and, thirdly, a sense that this was not an issue of alarm. Senator FAULKNER-I understand that. Let me bring it back so we can be focused and quick about this. Was it an attempt-I would say another attempt-by Defence to get through to you, the task force or Prime Minister and Cabinet about the inaccuracy of the claims about children overboard and the photographs that purported to represent that incident? Ms Halton-Can I take you to your question and the words you have used in your question? You have used `another'. Can I say that I am not- Senator FAULKNER-I said `an attempt or another attempt'. Ms Halton-You did say `another'. I have to go back and say that there were not attempts that I am aware of by Defence to tell us this was not the case. Senator FAULKNER-We simply have to disagree on that point. On that point, you and I do not agree. Ms Halton-Okay. That is fine. We can agree on that. Senator FAULKNER-I think the chronology and the footnote and the report that was shredded that went to the international division were all more than very serious attempts. That is my view. You and I disagree on that. I accept that I used the word `another' in the question. I did it deliberately. But let me take the word `another' out so we do not get bogged down with that issue, which we have canvassed at some length. Was this an attempt by Defence or Defence personnel or those associated with the Department of Defence to get through to you, to get through to the task force or to get through to Prime Minister and Cabinet that there was a real problem about the claims about children overboard and the photos that allegedly depicted that incident? Ms Halton-I do not believe so. I had a small number of calls with people in Defence through this period. I had a conversation with Ms McKenry; I had a conversation with Dr Hawke. Some of those people have been known to me for very many years. The notion is that it was not possible for one of those people, or any of those other people for that matter- bureaucracies are a big place and a small place and inevitably there are people that you have worked with in various environments in all sorts of agencies-to pick up the phone-on a couple of occasions I was explicitly asking about things-and say, `You just need to know that this looks a bit dodgy' or `We are a bit concerned.' As I said, not only were we not told; it was never alluded to-there was never the slightest suggestion. I am probably as perplexed as you CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1037 alluded to-there was never the slightest suggestion. I am probably as perplexed as you as to why, given some of the personal connections with people in that agency, that did not happen. Senator FAULKNER-I am not perplexed about it at all. I think I understand it perfectly well, and I think it goes to motivation. When did you talk to Dr Hawke? Ms Halton-I had a brief conversation with him on the evening of 8 November. That was the day, and you will recall it because you have asked people about it, when Admiral-is it? I do get the labels wrong-Shackleton was apparently- Senator FAULKNER-It is technically `Vice Admiral', but they are all admirals. Ms Halton-Thank you for the correction. Vice Admiral Shackleton was apparently reported in the press as having made a particular statement. Senator FAULKNER-Yes. Ms Halton-You have already had evidence from various people about the process of asking for clarification about how information was provided. I was party to a conversation between Mr Moore-Wilton and Mr Farmer about whether we had to- Senator FAULKNER-Between Mr who and Mr Farmer? Ms Halton-Mr Moore-Wilton and Mr Farmer, and I should say at this point that we had not even heard what Vice Admiral Shackleton had said. It was relayed to us that he had said that they had not told us this was the case, and in fact officers of the Department of the Prime Minister and Cabinet went back to their handwritten notes of the 7th. The conversation I had with Dr Hawke was that the executive area of Prime Minister and Cabinet had received a fax which was the unheaded statement issued by Vice Admiral Shackleton that afternoon. We had been told that this was going to arrive and I undertook not only to provide it to Mr Farmer, but there was nothing on it that indicated what its status was-whether it had been released or where it had come from-and I rang Dr Hawke's office. He had left. I then rang him on his mobile about that statement. Senator FAULKNER-As you look back to your conversation with Mr Jordana-or conversations; I am not clear whether there was more than one-on 7 November- Ms Halton-It was one conversation, as far as I can recall. Senator FAULKNER-I was not certain about that; so there was one conversation with Mr Jordana on the 7th-was it your impression that Mr Jordana was trying to get to the bottom of this, or trying to defend earlier government statements? Did you get a feeling about what his motivation was? Ms Halton-No, and our conversation did not go to that. As I have said, and it was in the press, the impression I was left with was that this was not an issue. It had been dealt with. They were discussing it with Minister's Reith's office, and I had no sense from that conversation of CERTAIN MARITIME INCIDENT CMI 1038 SENATE-Select Tuesday, 16 April 2002 concern in any way, shape or form. This was not news, I suppose, is what I am saying to you, Senator. It was, `It's in the press; we're talking to Reith's office-end of story.' You will understand that I had not seen the paper before this conversation so this, for me, was something extraordinary. Senator FAULKNER-When Mr Jordana asked for copies of material from Prime Minister and Cabinet, did that come through you? Ms Halton-No. My understanding is that he had had a conversation with Ms Bryant, seeking material. Senator FAULKNER-I know that, but were you made aware of that at the time? Ms Halton-My memory is that Ms Bryant told me in the conversation that in fact she had been with Ms Sidhu because Mr Jordana had asked for one of the sit reps. She had been with Ms Sidhu, trying to find it, when this particular piece of information was passed. Senator FAULKNER-This particular piece of information was what? Ms Halton-The tearoom gossip. Senator FAULKNER-So that all occurred at the same time. Ms Halton-That is my understanding. My understanding is that she was trying to find a sit rep or one of the factual pieces of information. Mr Jordana had asked for something-my memory is it was a sit rep; maybe I am wrong. Senator FAULKNER-I think that is right. Ms Halton-She had gone to try and find this particular sit rep. She had ended up in international with Ms Sidhu and Ms Wildermuth. They were both trying to find this particular document. It was in the conversation with Ms Sidhu in the process of trying to find the particular document that this tearoom gossip had been passed. Senator FAULKNER-Just so we are clear with the documents, is it right that you were not a first party to the document that Mr Jordana requested? Ms Halton-No. Senator FAULKNER-My understanding is that you are right. We know from what Ms Bryant said to the Defence estimates on Monday, 18 February that there was- Ms Halton-I am sure she was not in Defence estimates. Senator FAULKNER-Did I say that? Ms Halton-You did. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1039 Senator FAULKNER-I am sorry-finance and public administration. She was probably lucky enough not to be in the Defence estimates later in the week. Ms Halton-Much as she might probably like a career change, I do not know that that is one she has got in mind. Senator FAULKNER-In the PM&C estimates in finance and public administration she said: My staff have advised me, to the best they have been able to check in the time available, that the documents that were sent were two DFAT task force situation reports, namely situation report No. 59 and situation report No. 60- Ms Halton-Okay, so those ones you referred to earlier. Senator FAULKNER-Yes. She continued: ... in the sequence that was produced by DFAT over that time frame. Does that make sense to you? Ms Halton-Yes, it does. Senator FAULKNER-She continued: A third document was the Defence headquarters Operation Gaberdine/Operation Relex 8 November situation report. Ms Halton-If that is the one that we were discussing earlier- Senator FAULKNER-Well, I wonder. Ms Halton-But you just said Operation Gaberdine/Operation Relex 8th- Senator FAULKNER-Yes. Ms Halton-That suggest that in fact it was not destroyed. Notwithstanding what I was advised earlier, that does not sound right then, does it? Senator FAULKNER-It depends where the report comes from. I listened carefully to what you said. What I do not know is whether efforts were made, which seemed quite likely given the scrabbling around that went back to Defence. It is true, isn't it, that Mr Jordana asked for material that had previously been sent to the Prime Minister. That is what he actually asked for. Ms Halton-That sounds to me like it would be the case. But, as I said- Senator FAULKNER-There is a reason for that, though, isn't there? Ms Halton-That was not a request to me. I am aware, from what Ms Bryant said as context for this other conversation, that there had been a request for a sit rep. You have already made CERTAIN MARITIME INCIDENT CMI 1040 SENATE-Select Tuesday, 16 April 2002 the point and we have discussed that there is a belief that we hold that sit reps had been sent directly to the Prime Minister and to others. Senator FAULKNER-Yes, exactly. And I think the reason for this, Ms Halton, is because, as I understand it anyway, the way the caretaker conventions ought to apply is that only material previously sent would be appropriate to send to the Prime Minister. Ms Halton-That would be correct. Senator FAULKNER-You would accept that, wouldn't you? Ms Halton-I would accept that, yes. Senator FAULKNER-And that is my assumption. Whether this material is found in Prime Minister and Cabinet- Ms Halton-Or elsewhere. Senator FAULKNER-or it is a Defence source or whatever, we do not know. I certainly suspect that, from the information we have heard, if this is the same thing, if it is the same document, then it may well have been found in Defence or elsewhere. Ms Halton-I cannot dispute you, so you can form that opinion. Senator FAULKNER-I am hypothesising, but I think it is a reasonable hypothesis- Ms Halton-I have noted your hypothesis. Senator FAULKNER-from the information that is available to me. I will ask Defence to chase down the Operation Gaberdine/Operation Relex report, because I suspect that may be the way it went through. That is what Mr Jordana was seeking, anyway, and that seems proper in the circumstances. It seems, from the information available to me, that that conforms with the caretaker conventions. Just briefly, Ms Halton, what is your role, if any, in the Shackleton clarifying statement? Ms Halton-Other than to find a fax on the fax machine in the Department of the Prime Minister and Cabinet and then to fax that fax that had come in- Senator FAULKNER-This is the fax from Dr Hawke? Ms Halton-I believe it had come from Dr Hawke's office, but I cannot be categorical about that. Senator FAULKNER-This is not for approval? Ms Halton-This is my point, and this is why I then made a telephone call: it was unheaded, effectively. It was not clear whether it had been released, and so my phone call, firstly to his CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1041 office and then to his mobile, was to ascertain whether that particular statement had been released. Senator FAULKNER-And had it been? Ms Halton-He told me it had. Senator FAULKNER-So it was not sent to PM&C for approval? Ms Halton-Not that I am aware of, Senator. Senator FAULKNER-As background for you-you may not be aware of this-we know from Dr Hawke's evidence to this committee that he was told on 11 October that the photographs were dodgy, that they did not represent the incident they were supposed to represent. Ms Halton-I was aware that he had given that evidence. Senator FAULKNER-But what you are saying to us now is that you had a conversation, as chairman of the IDC, with Dr Hawke on 8 November and he did not raise that issue at all. Ms Halton-No. Senator FAULKNER-There was absolutely no mention of it whatsoever? Ms Halton-No. It was a very brief conversation. Senator FAULKNER-Yes, but why wouldn't he mention it that day, given that it was central to what Vice Admiral Shackleton had to say? He had put out a statement, said something-did a doorstop, if you like-and then put out a clarifying statement. Ms Halton-I cannot speculate about that, Senator. I think Mr Farmer gave you evidence that he had rung Mr Moore-Wilton seeking to confirm his memory that we had been advised by Defence that this was the case. I then sent officers off to the Social Policy Division, and in fact we extracted the handwritten notes that had been gathered on this particular issue. We advised Mr Farmer that, indeed, we had the handwritten notes that indicated the advice had been provided. Then-and I do not recall from where we ascertained this, or how I came to know this, and this is remembering that I did not actually know what Vice Admiral Shackleton had said precisely-we were told that in fact he was issuing a retraction. I think I then had a call from Mr Farmer to say, `Have you received this document yet?' and I went and looked and found it on the fax machine. That was the point at which I rang to ascertain whether this document, which did not have a heading or any sort of illuminating detail, was in fact in the public domain, because I did not want to pass it to Mr Farmer without knowing what status it had. Senator FAULKNER-But you definitely spoke to Mr Farmer? Mr Farmer was not certain about this, but you can confirm that? CERTAIN MARITIME INCIDENT CMI 1042 SENATE-Select Tuesday, 16 April 2002 Ms Halton-Yes, and I have got the phone records to prove it. Senator FAULKNER-All right. I accept that. You also made the point I think earlier that not only Dr Hawke but also Mr Farmer did not raise concerns about the incident with you. Was that right? I may have got the wrong name. You used a couple of examples: one was Dr Hawke not raising this matter with you. Was the other Mr Farmer? Ms Halton-No. Mr Farmer-that was in a different context. I think I made the point that I had had a conversation with some people in Defence Public Affairs, Jenny McKenry being one in particular. Senator FAULKNER-And when did you have that conversation with Ms McKenry? Ms Halton-I had a conversation with her- Senator FAULKNER-We are nearly there, which will be a great relief to everybody. Ms Halton-I made a call-and this is congruent with our discussion very much earlier on today-about the comment made by me in the meeting on the 9th of the 10th when, as we know, Commander Banks had given an interview, when we know that I had asked for details to be checked. I rang Defence Public Affairs and I tried to get Ms McKenry. In fact, what I did in the first instance was ring Defence Public Affairs, and I could not get her there. I do not think I was hugely patient, Senator. According to this, I waited about 40 minutes and I still had not heard from her, and I was told that she was in Dr Hawke's office. So I rang Dr Hawke's office to try and find her. I did not manage to find her. My memory is that she rang me later on that afternoon and we had a conversation where I made the point about information, confusion and Commander Banks making particular statements. I asked her for clarification about the instructions that had been given to people about commentary, and I made the point that it was imperative, which was then reiterated-it is reflected in some of the minutes you have seen- that we be given timely and accurate advice. Senator FAULKNER-What date is this? Ms Halton-The 9th of the 10th. Senator FAULKNER-It was 9 October. Ms Halton-The 9th of October. Senator FAULKNER-Sorry, I am winding back another month and a bit. What time was your discussion on the 8th with Dr Hawke? Ms Halton-I wrote this one out-6.39 in the evening. Senator FAULKNER-That is p.m. Ms Halton-Eighteen thirty-nine. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1043 Senator FAULKNER-Did Dr Hawke tell you that he had been back-briefed that day by Air Marshal Houston? Ms Halton-No. Senator FAULKNER-He had been. He had been back-briefed that day and told the event did not happen at all-not just the photographs. But he did not raise that with you- Ms Halton-No. Senator FAULKNER-as the chairman of the task force? Ms Halton-No. In fact, what my phone records show is that after I had had the conversation with Dr Hawke, I then rang, firstly, Max to tell him that I had the statement-I think I read it to him-and I then rang Mr Farmer and faxed it to him. Senator FAULKNER-You have probably seen some press coverage of this. You know that, in relation to Dr Hawke and Admiral Barrie, one had offered and one had considered resignation over this matter. In the circumstances, did you consider your future? Ms Halton-No, Senator, I did not. Senator FAULKNER-Not a moment's thought? Ms Halton-Senator, one has examined this process from a personal perspective and a great deal of detail, as you would well understand. It is not often in a career you get involved in something which is as big and as difficult as this or which ends up in an environment like this. As I have said on several occasions-I know Senator Cook does not in any sense agree with me-I am absolutely confident in my own mind that we acted and behaved properly. I am absolutely confident, notwithstanding the fact that issues were not raised with us, that we did ask for clarification and that when material was raised we pursued it. We could have a debate about whether that pursuit was successful and, with hindsight, we could probably all reach a particular opinion. In terms of the question: did that task force operate professionally and was the role that the Department of the Prime Minister and Cabinet played in that proper, I have to say-and I have said this on the public record before-that I think the work that was put in by the officials both inside the department and from the other departments was outstanding. It was a very difficult period. It was incredibly demanding on people both professionally and personally and on their family lives, and I am quite confident that people did discharge those obligations professionally. Senator FAULKNER-Have you given any thought in relation to your own role as chair of the IDC as to whether you crossed the line from what might be reasonable activity as an administrator, as a bureaucrat, if you like, and in fact progressed your role in a way that could only be seen as a political tool of the government? Have you given that any thought? Because that suggestion has been made and that criticism has been made. Ms Halton-I know that. One of the issues here that you have to consider, as I have said earlier, is that we were very conscious of the caretaker arrangements. I have been a public CERTAIN MARITIME INCIDENT CMI 1044 SENATE-Select Tuesday, 16 April 2002 servant for over 20 years and I am absolutely fully au fait with what that means. There is no doubt in my mind-and it goes to the term `spin' that Senator Mason, I think, used before-that we provided, once we were in the caretaker period, the necessary facts. It was done in an environment where the government's policy position in this area was known and the job that was done was completely consistent, in my view, with the requirements of the Public Service Act. Yes, I have reflected on that, not surprisingly, and I am absolutely confident that is the case. There is no doubt that- CHAIR-It is the accuracy of those facts that we are here about, of course. Ms Halton-I understand that. I suppose the point I am making to you is this: given everything that was going on and the work of the task force, which was a huge workload, and given that essentially,-and in retrospect it does not look this way-there was one thing that was, in hindsight, discovered to be inaccurate, there were steps taken by us to confirm the details. We positively put our understanding of those issues in front of the relevant players; they did not demur from that. My view, categorically, is we behaved professionally and properly. I have a great deal of respect for the work that the people from the various departments put in on this issue. It is unfortunate that people have sought to portray humble servants of the public, which is what professional bureaucrats basically are-and I made the comment about being `faceless' earlier-as being something other than they are. CHAIR-Yes, but whichever way you want to cut it we are still stuck with this problem: news that kids were thrown overboard travelled at the speed of political light; the rejoinder that they were not did not even reach the Prime Minister after a month. That is the problem. Ms Halton-As we have canvassed here-and I know you feel- CHAIR-And everyone builds an edifice of proof that the first accusation did not have to meet but that the retraction does. Ms Halton-This will come down inevitably to individual opinion. CHAIR-It may, or it may come down to a better understanding of the facts. Ms Halton-Indeed. CHAIR-And who did what, and when. Ms Halton-From my understanding of the facts, I describe this as being a bit like the parable of the blind man and the elephant. Are you familiar with it? CHAIR-I am not sure at this hour that I want to become familiar with it- Ms Halton-Maybe not. CHAIR-but I am pretty sure you are about to tell me. CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1045 Ms Halton-I am sorry, I am. Essentially, this is like the blind man on the elephant. You walk up and you clasp onto something which feels like it is long and thin and leathery-and I am not going where you think I am-and what you have actually got hold of is the tail. You do not know, even though you can describe that bit of the tail in graphic detail, what the rest of the elephant looks like. At the end of the day we endeavoured to do what we could from a central agency perspective, but if people did not give us that information- CHAIR-The problem with that analogy is that you have the helicopter view of the elephant. Ms Halton-If you are blind, I suspect you cannot fly a helicopter-and, anyway, we should stop with parables, shouldn't we? It probably is not helpful at this hour of the evening-but we did not have the helicopter view. That is where I would dispute with you, because essentially we only saw what we were given from line agencies. The Department of the Prime Minister and Cabinet is not a line agency. CHAIR-Yes, I accept that part of it. But nor did you seek to find other information out either. Ms Halton-You only seek to find information when you have a doubt. CHAIR-We have been through this, and I have told you honestly what my position is. You say that refugees wearing life jackets is interesting and a new level of escalation in this but that throwing children overboard is not a new pattern of threatening behaviour and therefore not requiring of investigation. I have expressed my view to you about that, straightforwardly. Ms Halton-Let us be clear about escalation. You have made a comment about what life jackets represented. CHAIR-You did. I just parroted yours back to you. Ms Halton-What I said was: what we thought that might be indicative of was an intention to sink the vessel. That was the escalation we were expecting. Life jackets are neither here nor there; it is what you do with them and what the intention is that comes from the life jackets and, as we suspected and as we all know, that vessel was sunk. CHAIR-Yes, but the fact that children were being thrown overboard-as the report you had-does not in any way appear to you to be a new pattern of behaviour worthy of further investigation? That is my whole problem with the evidence. Ms Halton-And I have said to you that the answer to that is no. Had that been an issue raised, we would have pursued it. Had it been particularly germane to anything that was going on at that point in terms of operational detail, we may well have pursued it. At the time it did not seem that that was the case, and that was where the issue rested. CHAIR-So the report got broadcast but no-one bothered to find out anything more because it was not convenient? CERTAIN MARITIME INCIDENT CMI 1046 SENATE-Select Tuesday, 16 April 2002 Ms Halton-No. And that is a misrepresentation, Senator. You are implying that an active decision was made not to do something because of convenience, and that is a misstatement of the facts. The reality is we did seek information- CHAIR-And you got it; that is the evidence. Ms Halton-We have had that discussion, and Senator Faulkner said he has one opinion and he knows I will not necessarily agree with him. But in terms of this being about convenience, can I tell you that there was no point in this process that the advice that was given by that group was couched in any notion of convenience. The advice that was given and the information that was provided was, if I use the old bureaucratic standard, frank and fearless based on the facts as we knew them, based on our technical and professional advice. That is absolutely an accurate reflection of the truth. CHAIR-So how do you explain it, then, that it works one way but it does not work the other way? It works with the first advice, but it does not work with the second advice. Isn't that a systemic failure? Senator FERGUSON-There was no reason to doubt the first advice. Ms Halton-That is my point. CHAIR-Hang on. We are sitting exactly in your seat. We have the commander, as he is properly entitled, of the ship saying that as soon as he became aware of the misrepresentation he corrected it. Ms Halton-I am aware of that, Senator. CHAIR-And we had Brigadier Silverstone saying exactly the same. We went right up the line and they all said that they corrected it. The line peaks with you. Ms Halton-But they did not correct it to me, and that is where this is a misrepresentation. The reality is that- CHAIR-So they are wrong? We should call them back. Ms Halton-No, Senator. Not one of those people, as I understand it, has given you evidence that they came and corrected it to the task force. Can I say that I acknowledge absolutely what you have said in relation to the evidence you have had from Commander Banks and those people immediately contiguous to him. I never had a conversation with Commander Banks; I never had a conversation with Silverstone or Smith or, can I say, Vice Admiral Shackleton. CHAIR-And we are expected to believe as well that the most hands-on Prime Minister, in election campaigning, takes the front page of the newspapers around Australia essentially the day or the second day after he announces an election and never asks another question again about the issue that got him favourable front-page coverage? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1047 Senator FERGUSON-He had no reason to doubt it. Ms Halton-I cannot make any comment about what the Prime Minister did or did not ask. I can simply reflect to you, going back to my elephant, what I know. What I know is that I was never asked and the task force was never asked and, indeed, we never had any reason. We could go back to the caveat on that from Senator Faulkner and your perspective, but we believed this to be the case. Senator FERGUSON-Mr Chair, can I ask- CHAIR-We are debating it now. Senator FERGUSON-I really-and you can put your own political spin on that- CHAIR-I am not putting a spin on it; they are the facts. Senator FERGUSON-You can have your own political beliefs, but the fact is that this was an operational report of which you received many of over a period of time, didn't you? Ms Halton-Yes. Senator FERGUSON-SIEV4 was one operational report, and you had no reason to doubt that report in the same way that you had no reason to doubt SIEV7, SIEV8, SIEV9 or SIEV10. Ms Halton-I have made a comment which is very much to that point. I must have had through this period hundreds of telephone calls, principally from Titheridge. Maybe I am exaggerating but we are talking about multiple telephone calls which relay information-some of which ended up in advice papers and some of which did not. My experience throughout this period was that the information was reliable. CHAIR-I have no doubt that what you have said, that everyone worked very hard, is true, but I have some doubt in believing, given the problem as it has been explained, that this is an example of sterling professionalism by the Public Service. Senator FERGUSON-I think that is a reflection, Mr Chair. CHAIR-It is not a reflection on Ms Halton; it is a reflection on the circumstances. Senator FERGUSON-It is going very close. CHAIR-How can it be that something that goes so grievously wrong is an example of consummate professionalism? Senator FERGUSON-Nothing has gone grievously wrong. Ms Halton-Senator, again- CERTAIN MARITIME INCIDENT CMI 1048 SENATE-Select Tuesday, 16 April 2002 CHAIR-You heard Banks: how come that did not get explained by the Prime Minister in time? Senator FERGUSON-I heard Silverstone as well as Banks. Ms Halton-I cannot comment on that, Senator, because I do not know why that is the case. I can just tell you what I know. Senator JACINTA COLLINS-Ms Halton, there is just one issue that I want to revisit, but I want to clarify your earlier statement first about who you did not speak to. Does that include Rear Admiral Ritchie? Did you not speak to him as well? Ms Halton-No, I have never spoken to him. Senator JACINTA COLLINS-I want to go back to the vigorous pursuit of the details about what had happened in the incident that led to the chronology being received by Matt Healey. Was he part of the PM&C vigorous pursuit of the facts? Ms Halton-Now that I am tired, and we are all tired, let us take the emotional language out. If I have used that language before I regret it, so let us talk about the seeking of clarification and detail which was professionally what people were doing. My understanding is that Mr Healey was part of that exercise. There were a number of officers who had, as I understand it, conversations with Strategic Command looking for detail in particular areas. Senator JACINTA COLLINS-Do you now know why that chronology was not passed up the line within PM&C? Ms Halton-My understanding is that Ms Edwards in fact probably had it in her possession when she came to see me on that afternoon. We have gone through the chronology: I arrived at the office at 4.45 p.m., we went into the meeting at five o'clock and we have already observed the time frame and the series of phone calls that occurred in that 15-minute period and the information we became privy to in that period. I think she arrived in my office to tell me where they had gotten to with this process and what we now knew to be the substance of particular things. As I have said, we tabled-I think it was an hour or so later, maybe a bit less-our understanding and we discussed it in that evening meeting, although not in vast and glorious detail. I have no record of having received that chronology. I have checked the incoming record of the documents into my office, which I keep a record of, and I did not recall having seen it; so when I was actually shown it when the inquiry was under way I had no memory of having seen at all. As I said earlier, I would fully believe it was overtaken by those three things that we have already talked about at length this evening. Senator JACINTA COLLINS-Amongst others, the conversation you had with Minister Reith before you went into the meeting? Ms Halton-Yes. Senator JACINTA COLLINS-In retrospect, if you had read the chronology, would you have had greater doubts? CERTAIN MARITIME INCIDENT Tuesday, 16 April 2002 SENATE-Select CMI 1049 Ms Halton-I do not know. Speaking quite honestly about it, I just do not know-when I have been told by a minister that certainly there is a video and we know there is uncertainty whether he told me about the photos, but it sounds like he probably did and I think Katrina might actually think that that conversation included a discussion of the photos-whether I would have then said, `No, go look more.' However, the reality is that at that point we were satisfied about the detail we had about when particular things happened and, as I have said, we moved on. Senator JACINTA COLLINS-The other concern I have relates to earlier comments you made about the footnote at the chronology, where you seemed to link that to the earlier reports that Commander Banks had made about the fact that he was still awaiting reports from the other side of the SIEV-where it was possible that someone had seen something. My understanding of that chronology is that it was actually produced post clarification that there were no reports from the other side of the SIEV indicating the possibility that a child had still gone overboard. Ms Halton-I do not know that we knew that. I suspect that this is information you are now piecing together from various witnesses. Senator JACINTA COLLINS-Yes. Ms Halton-I would be surprised if we knew that. Clearly, we had a chronology; clearly, we were trying to pick through the detail to get the facts sorted out in terms of what happened precisely when. When you get told that there is a video of something- Senator JACINTA COLLINS-Yes. This is our biggest problem: we hear reports that there is a video that shows a child being put overboard. As you have reported, you were informed that the statements were corroboration and that the photos were corroboration. At this stage, we have no access to the person making those claims. We are almost stuck with you in terms of chasing the information. Ms Halton-As I have said to you, I can tell you what I know, and I have attempted to do that as best I can. Senator JACINTA COLLINS-Thank you. CHAIR-I think that concludes tonight's hearing. Thank you for your patience and stamina, Ms Halton. Ms Halton-It has been my pleasure, Senator. Committee adjourned at 12.57 a.m. (Wednesday) CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain Maritime Incident WEDNESDAY, 17 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BLOOMFIELD, Mr Tim, Director, Media Liaison, Department of Defence....................................... 1172 CHATTERTON, Commander Piers Sydney Nevill David, Director of Operations-Navy, Department of Defence............................................................................................................................... 1162 DAY, Colonel Stephen Julian, Deputy Commandant, Australian Defence Force Academy ............... 1096 EVANS, Group Captain Gregory John, Chief of Staff to Chief of Defence Force, Department of Defence......................................................................................................................................................... 1091 HOUSTON, Air Marshal Allan Grant, Chief of Air Force, Department of Defence ........................... 1052 HUMPHREYS, Mr Brian Andrew, Director General, Communication Strategies, Department of Defence......................................................................................................................................................... 1141 McKENRY, Ms Jennifer, Head, Public Affairs and Corporate Communication, Department of Defence......................................................................................................................................................... 1099 STACKPOOL, Mr Andrew Michael, Public Affairs Officer, Directorate of Media Liaison, Public Affairs and Corporate Communication, Department of Defence............................................... 1186 Wednesday, 17 April 2002 SENATE-Select CMI 1051 Committee met at 8.34 a.m. CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident and I call the committee to order. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from the secretariat staff and copies have been placed near the entrance to the room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing is scheduled to adjourn at 7 p.m. but may finish earlier-I wish! The hearing will resume at 9 a.m. tomorrow morning. There will be a short lunchbreak between 12.30 p.m. and 1.15 p.m. We shall attempt to deal as expeditiously as possible with witnesses. I therefore urge witnesses to be concise in their answers and I urge senators to keep their questions highly targeted. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give a part of their evidence in camera, they should make that request to me as chair, and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witnesses should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. However, counsel has no right to address the committee, nor will the committee address questions to counsel. Before I call the first witness, I want to make the observation to the committee, or to those of us who are here, that we have a highly organised day. If we complete our list of witnesses today-and there is quite a number of them-it will be a record for this committee. Many of the witnesses that we have on our list today have very tight timetables and have made themselves available. We have accepted their attendance in the full knowledge of that, so I will be cutting off questions at the end of the times shown on the notice for the hearing today. CERTAIN MARITIME INCIDENT CMI 1052 SENATE-Select Wednesday, 17 April 2002 [8.38 a.m.] HOUSTON, Air Marshal Allan Grant, Chief of Air Force, Department of Defence CHAIR-Welcome, Air Marshal Angus Houston. Do you have any comments to make by way of an opening statement? Air Marshal Houston-I spoke to the Senate estimates committee back in February and, essentially, I made a number of statements at that time. I stand by what I said then, and I am very happy to be here today to elaborate on anything that you want me to elaborate on. CHAIR-Is that your opening statement? Air Marshal Houston-Yes. CHAIR-Thank you very much. Senator BRANDIS-For how long have you been a military officer or in the service of the Royal Australian Air Force? Air Marshal Houston-Since January 1970. Senator BRANDIS-In the 32 years in which you have been in the service of the Australian Defence Force you would be in a better position than almost anyone to have an awareness of the values, standards and protocols of the ADF, wouldn't you? Air Marshal Houston-Along with my colleagues-the Chief of Army, Chief of Navy and other members of the senior leadership group within Defence-yes. Senator BRANDIS-May I suggest to you that among those values, standards and protocols there is a high level of confidence in an officer in command of a command or operational situation? Air Marshal Houston-Yes, I would agree with that totally. Senator BRANDIS-And that there is an expectation that when an officer in command of- what I have called-a command or operational situation makes a report then those for whom the report is made are entitled to rely upon its accuracy and truthfulness? Air Marshal Houston-Yes. Usually, the reporting will come in the written form and, yes, that would be accepted totally. Senator BRANDIS-I am not asking you about the medium, for the moment-I will turn to that. Regardless of whether a report is an oral report or a written report, when an officer in a command situation makes a report through the chain of command there is a high expectation CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1053 that that report is reliable and command decisions, or any other decisions for that matter, up the chain of command may be taken on the assumption that that report is indeed accurate. Air Marshal Houston-Over the last 12 years, I have had a lot of experience in handling re- ports from the field. I have been in many situations where reports have come in by phone. The initial reports are often to let the high command chain know that something has happened, and the initial details are sometimes quite sketchy. So it is therefore quite important in those circum- stances to wait awhile to let things sort themselves out and then you finally get a much more complete report. Let me give you an example. When I was Chief of Staff at Australian Theatre we conducted an evacuation operation out of Phnom Penh. It was a highly successful operation but sometimes the initial reports that came in were just a little bit sketchy and what was required was to wait a little while to get the complete story. Senator BRANDIS-I understand entirely, Air Marshal Houston, but are you demurring from the proposition that those further up the chain of command have an expectation that they can rely on reports from the command situation by the commanding officer in the field? Air Marshal Houston-Yes, definitely. All I wanted to alert the committee to was the fact that, when things are happening out there in the operational situation, what is actually happening is not always clear to the commander on the spot because, if we are up on the East Timor border and there has been an incident-a contact with militia or something like that-the initial details will always be sketchy. Senator BRANDIS-I think you have made that point. Air Marshal Houston-There is a need to assess the situation and then report back. The point I want to make is that every time that has happened in my experience the information that has come from the commander at the lower level has always been very good information and information that could then be passed on, and I had complete confidence in that information. Senator BRANDIS-Quite. All I am really trying to get at is that a report from a commander in an operational situation would not likely be set aside or varied by those further up the chain of command. It may be supplemented or fleshed out by fuller information arriving and assimilated subsequently, but it would not likely be set aside, would it? Air Marshal Houston-No, it would not be set aside. Senator BRANDIS-Of course, it may be wrong. Human error is part of the human condition. I am not saying that there is an absolute and dogmatic adherence to every report from a command situation. The point I am merely trying to get across or see if you agree with is: if there is a report, those further up the chain of command have an expectation in the military that it is reliable and can and will be relied upon and it would not likely be set aside. Would you agree? Air Marshal Houston-I would agree. In my experience, information that has come through Commander Australian Theatre from the tactical level has always been very good information. CERTAIN MARITIME INCIDENT CMI 1054 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-Yes. I do not think you need to be a military officer to know this. It is really a matter of commonsense. Would you agree with these two propositions? The first is that a witness to events is more likely to have an accurate account of those events than those who have merely heard second-, third- or fourth-hand what took place. Air Marshal Houston-I do not know quite what you are getting at when you say a witness to the events. Are you referring to the commander on the spot or are you referring to somebody that might be there with the commander? Senator BRANDIS-Anyone. We are not talking about the command chain. I am simply putting the almost banal proposition that, if you want to find out what happened, you go to the man or woman on the spot, whether they be the commander or a person who was directly engaged in the relevant episode. The further away you get from the eyewitnesses, the less reliable the account will be. Would you agree with that? Air Marshal Houston-The information that is used further up the chain of command relies totally on the reporting from the tactical level. From that point of view, I would agree. Senator BRANDIS-The second proposition is, again, almost banal. It is that, the greater the passage of time since an event happened, the less reliable memory will be. The best evidence of something is the evidence of a person who narrates it as they see it and the least reliable evidence will be the evidence based on memory and recollection as the incident recedes into the past. Would you agree with that? Air Marshal Houston-No, I would not. I think it depends on the context of the circumstances. Sometimes something happens and it is of such consequence and gravity that you remember it very well. I would concede that, with routine circumstances, that is probably true. But I think if you have been involved in something that is of great importance, you might tend to remember that quite vividly. Senator BRANDIS-I am not disputing that, but you would certainly agree that what anyone remembers, say, six months after an event is never going to be better than what they remember and record as the event is happening? Air Marshal Houston-I would agree with that. Senator BRANDIS-And one indeed would view with suspicion the evidence of a witness whose memory of an event seemed to become better or more dogmatic with the passage of time rather than more tentative or uncertain. Air Marshal Houston-I would not like to make a comment on that. Senator BRANDIS-All right. Air Marshal Houston, you became the Acting CDF on 6 November 2001. Air Marshal Houston-That is correct. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1055 Senator BRANDIS-On the morning of 7 November 2001-I am going from your evidence in estimates-you saw a story in the Australian about the so-called `children overboard' episode on SIEV4 and something struck you about it. Is that so? Air Marshal Houston-Yes. I have a copy of it before me. Senator BRANDIS-Of the article in the Australian? Air Marshal Houston-I have a copy of the article. Senator BRANDIS-I am not going to ask you any questions about it; I am just trying to locate a point in time. Air Marshal Houston-That is correct. Senator BRANDIS-Prior to the time when you saw the article in the Australian on 7 November, what, if anything, had been your involvement with what I might generically call the SIEV4 incident? Air Marshal Houston-I am a member of the senior command group that advises CDF. Through the period that you refer to-that is, through October and November up to when I became Acting CDF-there were many meetings of the senior command group that talked about a large variety of operational matters. Most of them were to do with the war on terrorism. We also had the weekly operations briefing for CDF. As part of that weekly operations brief, we would get a briefing from Head of Strategic Command on what he had been up to in the previous week and also a briefing from Commander Australian Theatre who would do likewise. During those briefings, there was a brief overview of what had been happening on Operation Relex. My formal involvement in Operation Relex before I became Acting CDF was that I was not directly involved. Senator BRANDIS-You were not directly involved. Would it be fair to say that you were generally aware of it, but you had no specific knowledge of any particular aspect of it? Air Marshal Houston-I was aware of what was going on and I was aware of some uncertainty about SIEV4. Senator BRANDIS-What was the uncertainty of which you were aware? Air Marshal Houston-I was aware that there was some concern about the photographs and the fact that the photographs related to the events of 8 October not 7 October and about the fact that there was no documentary evidence to support the statement that children had been thrown overboard. Senator BRANDIS-Would you expect there to be documentary evidence? Air Marshal Houston-When I was Acting CDF, I did review some documentary evidence, yes. CERTAIN MARITIME INCIDENT CMI 1056 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-We will come to that in a moment. Air Marshal Houston-I think this is what you are seeking: I did not see any documentary evidence prior to becoming Acting CDF. Senator BRANDIS-Nor did you have a conversation with Commander Banks? Air Marshal Houston-No, definitely not. Senator BRANDIS-Nor did you have a conversation with any member of the HMAS Adelaide crew? Air Marshal Houston-No. Senator BRANDIS-Did you speak to Brigadier Silverstone? Air Marshal Houston-No, I did not. Senator BRANDIS-Were you aware that Brigadier Silverstone had, on the morning of 7 October, reported to Air Vice Marshal Titheridge that he had been told during a telephone conversation with Commander Banks from the bridge of the Adelaide that a child had been thrown in the water? Air Marshal Houston-I was not aware of it in the detail that you have just given me. Senator BRANDIS-When you saw the Australian report, you had heard speculation or talk about the authenticity of photos, you had heard talk about the absence of documentary evidence demonstrating that a child had been thrown in the water- Air Marshal Houston-Yes. Senator BRANDIS-and you had inspected no source documents- Air Marshal Houston-Correct. Senator BRANDIS-and you had spoken to no witnesses? Air Marshal Houston-When you say I had spoken to no witnesses, what do you mean? I was involved on a daily basis talking to CDF. Senator BRANDIS-Maybe I am being too much of a lawyer. By `witnesses' I mean eyewitnesses. I mean people who were there when the event happened-the crew of the Adelaide, in other words. Air Marshal Houston-I had spoken to nobody at the tactical level. I had spoken to nobody who was aboard Adelaide. I had spoken to nobody in NORCOM. I had spoken with CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1057 Commander Australian Theatre on a variety of matters, but I do not recall having a discussion with him about that specific instance. Senator BRANDIS-Not only had you not spoken to Brigadier Silverstone but you were in fact unaware that Brigadier Silverstone had reported that he had been told by the commander of the Adelaide as the event was happening, early on the morning of 7 October that a child had gone into the water. You were unaware of that? Air Marshal Houston-No. I was aware that a report had come in that suggested that children had been thrown overboard. I was aware that that had come through Air Vice Marshal Titheridge. I was aware that that had gone to the task force and I was aware that there was some confusion about that report. Senator BRANDIS-When you say confusion, Air Marshal, it amounts to nothing more than this, does it not: that certain people who were not witnesses to these events had raised a doubt about the accuracy of the report? That is all it amounts to, doesn't it? Air Marshal Houston-Essentially, there was no documentary evidence. I was aware that there was no documentary evidence to support the report that children had been thrown overboard. Senator BRANDIS-Air Marshal Houston, there was actually documentary evidence to support that report, which I will take you to in a moment. Be that as it may, you had not spoken to Silverstone, had you? Air Marshal Houston-No, I had not. Senator BRANDIS-Having seen the report in the Australian on the morning of 7 November, from your evidence in the Senate estimates committee you had a conversation with Air Vice Marshal Titheridge. Is that so? Air Marshal Houston-That is correct. Senator BRANDIS-What did he say to you about the so-called `children overboard' incident? Air Marshal Houston-Could I just give my side of the story? Senator BRANDIS-Of course, but I want to approach this in a particular way and I am inviting you to give me your recollection of a conversation. That is not exactly a tendentious question. Air Marshal Houston-No, that is fine. CHAIR-I am very sure you will get an opportunity to say in your own words- CERTAIN MARITIME INCIDENT CMI 1058 SENATE-Select Wednesday, 17 April 2002 Senator JACINTA COLLINS-If the witness wants to explain something in context, I think he should be able to. Senator Brandis's particular passion for asking questions, given the nature of his interjections yesterday, is inappropriate. Senator BRANDIS-I am asking the question, Senator Collins. Air Marshal Houston-I am happy to take the question. CHAIR-Order! Senator BRANDIS-Please answer the question, Air Marshal Houston. CHAIR-Are you wanting to take a point of order, Senator Collins, or have you had your say? Senator JACINTA COLLINS-My point of order is that I believe the witness, if he seeks to, should be able to elaborate more fully than Senator Brandis's specific questions. And he has sought to. CHAIR-Is there any other comment on the point of order? Senator BRANDIS-I have asked him what was said during a conversation. Senator FAULKNER-I will speak to the point of order. I always think that these things are, firstly, in the gift of the questioner. Senator Brandis is entitled to ask any question he wishes to. He is proceeding to do that and no doubt he will continue to do so. The witness at the table, whether it is Air Marshal Houston or any other witness, can answer the questions precisely as they see fit, as long as they answer truthfully. That is how these committees always work. I think we all know that. We should probably just get on with it. CHAIR-On the point of order: I will not rule against Senator Brandis at this stage, for the reason that I have applied a very open and liberal interpretation of managing this inquiry. I am reasonably sure, with the greatest respect to you, Air Marshal, that all of us are adult and can deal with these questions by explaining what we want to put ourselves, so let us proceed. Air Marshal Houston-Okay, fine. Senator BRANDIS-Air Marshal, the question was: what was said in the conversation between you and Air Vice Marshal Titheridge on the morning of 7 November? Air Marshal Houston-The first thing was, obviously, the article in the Australian. We talked about the article, and the focus of discussion was: Christmas Islanders allege that naval officers told them claims that asylum-seekers had thrown their children overboard during a confrontation last month with HMAS Adelaide were untrue. ... ... ... CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1059 A spokesman for Mr Reith said last night: "I don't put any credence in unnamed sources, and the Minister has no rea- son not to believe the reports he's received from senior officers in the navy." Essentially, that was in relation to children overboard. We had a discussion about the article and, in this article, there is also a reference to a video. I was very interested in the video. I found out from Air Vice Marshal Titheridge that there was a copy of the video-the only one he was aware of was held by Admiral Smith in Sydney. I asked Air Vice Marshal Titheridge if he had seen the video; he told me he had not, but he had been briefed in some detail on it. 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. The other thing that he told me was that Minister Reith wanted to speak to me quite urgently-I think the words he used were: `Minister Reith is chasing you.' I assumed from that that Minister Reith wanted to talk to me about this particular article and, of course, my further actions from there were to find out as much as I could about the events of 7 and 8 October. Senator BRANDIS-I am sorry; say the last sentence again. Air Marshal Houston-My actions from there were to find out as much as I could about 7 and 8 October, given that the word I was given was that the minister wanted some fairly quick advice. Senator BRANDIS-Given that that was the task you set yourself-to find out as much as you could about these events-what steps did you then take to find out as much as you could? Air Marshal Houston-Obviously Air Vice Marshal Titheridge is the major adviser to CDF on operational matters; I had spoken to him. Senator BRANDIS-Sorry, pausing there: have you completed your account of your conversation with Air Vice Marshal Titheridge? Air Marshal Houston-Yes. I can remember the discussion about the video because that was really something that I was very focused on. Senator BRANDIS-So everything you are able to tell us about your conversation with Air Vice Marshal Titheridge you have now told us? Air Marshal Houston-All that I can recall, yes. Senator BRANDIS-Did Air Vice Marshal Titheridge tell you that he had received up the chain of command on the morning of the seventh an unequivocal report from Brigadier Silverstone that Brigadier Silverstone had been told by Commander Banks that a child had been thrown overboard? Air Marshal Houston-No, he did not, but we had moved on. We were a month away from those events at that time. CERTAIN MARITIME INCIDENT CMI 1060 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-Did he refer to the fact that he had had a conversation with Brigadier Silverstone on the morning? Air Marshal Houston-No, he did not. The whole thrust of the conversation was what the video showed, and what came out of that was that the video did not show that there was any evidence to support the fact that children had been thrown overboard. I think the word he used was that it was `inconclusive' in terms of supporting the child overboard proposition. Senator BRANDIS-`Inconclusive' means it is not conclusive one way or another, doesn't it? Air Marshal Houston-That was the word he used. I think the reason he used that word was that the video showed what happened down one side of the vessel and did not actually show what had happened on the other side of the vessel. I would assume that is why he came to the view of it being inconclusive. In fact, I think he actually said that. He said, `Therefore, it's inconclusive.' Senator BRANDIS-If I may be forgiven an editorial comment, as it were, he was plainly right; it was conclusive. It did not tell you one way or the other, did it? CHAIR-It certainly did not prove a negative. Senator BRANDIS-If it is inconclusive, it does not conclude. Air Marshal Houston-What I was searching for was some documentary evidence that supported the children overboard proposition. Senator BRANDIS-I understand. Air Marshal Houston-I was vitally interested to see that video. I had not seen it myself. Senator BRANDIS-Did you look at it yourself that morning? Air Marshal Houston-No, I then went up to the CDF's office and went into the Chief of Staff's office. He shares that office with the then Lieutenant Colonel Steve Day- Senator BRANDIS-Evans. Air Marshal Houston-Evans and Day. I mentioned during Senate estimates that I had gone to talk to Evans; in actual fact I talked to Day. I talked to Lieutenant Colonel Day about the video. I wanted to see the video. The first question was: `Is there a copy of the video here?' The answer was: `No, there is not.' I said, `I understand that Admiral Smith has a copy of the video in Sydney. You've got some technology here in CDF's situation room. Would it be possible for that video to be broadcast to Canberra so that I can have a look at it in the next half-hour or so?' Clearly there was a need to talk to the minister as soon as I had the facts together. Unfortunately, that was not possible. After checking, he told me it was not possible to broadcast the video- CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1061 Senator BRANDIS-I am sorry, Air Marshal; I do not want to cut across you but I am con- scious of the limit on time. What you are saying to me is that you made reasonable attempts to view the video but, for reasons beyond your control, that was not possible on the morning. Is that what it amounts to? Air Marshal Houston-That is correct. Senator BRANDIS-According to your evidence in estimates, you then had a conversation with Group Captain Evans and Brigadier Bornholt. Air Marshal Houston-Yes. Senator BRANDIS-Was there any intermediate event before you had that conversation? You spoke to Titheridge, who gave you his interpretation of the video and said it was inconclusive, and you tried to arrange to see the video and, for reasons for which you cannot be criticised, that proved not to be possible. Was the next thing that happened your conversation with Evans and Bornholt? Air Marshal Houston-I corrected my Senate estimates evidence. The individual I spoke to was actually Lieutenant Colonel Day. Senator BRANDIS-It was Day, not Evans. Air Marshal Houston-It was Day, yes. The conversation was as I have just described to you. When I was talking to Day about that, Bornholt was in the office at the time. Senator BRANDIS-I will take you through this step by step. Lieutenant Colonel Day, of course, was not a witness to any of these events. Air Marshal Houston-When you say `a witness to these events'- Senator BRANDIS-The SIEV4 events on 7 October. Air Marshal Houston-He was not out on the ocean, no. Senator BRANDIS-Did he say to you that he had read any source documents or seen the video? In other words, was he able to give you a second-hand account of any primary evidence? Air Marshal Houston-No, he was not. He could not elaborate further on the circumstances. The conversation with Lieutenant Colonel Day really was in relation to the video and the opportunity to view the video. Senator BRANDIS-So, Lieutenant Colonel Day told you nothing? Day introduced you to no relevant material fact? Air Marshal Houston-That is correct, Senator. CERTAIN MARITIME INCIDENT CMI 1062 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-Did you then speak to Brigadier Bornholt? Air Marshal Houston-I did. Senator BRANDIS-Bornholt was not a witness to these events in the sense I have used the word? Air Marshal Houston-No, not in the way you have described the word. Senator BRANDIS-Did he introduce you to any new or relevant material facts? Air Marshal Houston-Yes, he did. Senator BRANDIS-What were they, please? Air Marshal Houston-He produced a chronology of events. In fact I have it here and I think it has been tabled. Senator BRANDIS-Just pause. Let us make sure that we are talking about the right document. This is a four-page document starting with the words, `SIEV4/01 sit rep event log Christmas Island'. Air Marshal Houston-What I have here is `Daytime group 10 1136Z, October 01'. Senator BRANDIS-Air Marshal Houston, would you please pass that up to me. Air Marshal Houston-Certainly. It is the chronology of events sent from Adelaide on 10 October. Senator BRANDIS-Please freeze there for a moment while I check this. The document that I just showed you is not the document that Bornholt had. Is that right? Air Marshal Houston-That is correct. Senator BRANDIS-This is the document with the famous footnote. For the sake of completeness, at the last entry on the last page there is a footnote which has been quoted in part by other senators: There is no indication that children were thrown overboard. It is possible that this did occur in conjunction with other SUNCs jumping overboard. You did not see that document on the morning? Air Marshal Houston-No, I did not. CHAIR-It is a bullet point rather than a footnote, isn't it? Senator BRANDIS-Sorry, it is a bullet point. It has been described as `the footnote'. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1063 Senator JACINTA COLLINS-I would like some clarification at this point. Has Air Marshal Houston provided to the committee the document that he is referring to? CHAIR-He has provided it to Senator Brandis. Senator JACINTA COLLINS-Could I have a copy of it, please? Senator BRANDIS-It is this one. You already have it. Senator JACINTA COLLINS-Where is it? Which one are we referring to? You have the benefit of seeing it, Senator Brandis. We do not. Air Marshal Houston-This is the Op Relex SIEV4 list of chronological events for 7 October 2001 boarding from HMAS Adelaide to Maritime Commander Australia and for info of Maritime Headquarters, CJTF 639 Silverstone and a couple of other addressees. Senator FAULKNER-Air Marshal, it is what we as a committee have probably not quite accurately described as `the signal'. That is the terminology that we have consistently used, as opposed to `chronology', which is another document. Air Marshal Houston-Yes. CHAIR-We are all satisfied we know the document. Please proceed, Senator Brandis. Air Marshal Houston-This is the signal that I referred to in my Senate estimates evidence. Senator FAULKNER-Yes, indeed, and that terminology is the one that we have consistently used as opposed to `the chronology', even though the signal contains a chronology and forms the basis of the other document. Senator BRANDIS-Air Marshal Houston, is the document that we have now all agreed is the chronology, the only source document you saw before you spoke to the minister? Air Marshal Houston-That is correct. Senator BRANDIS-I was chastised by a journalist for making this distinction when I made the point in Senate estimates, but let me be bold enough to make it again. A chronology is an ordered sequence of events that is of things that are seen to happen as they happen. Would you agree? Air Marshal Houston-Yes. Senator BRANDIS-It is not a descriptive document that describes a panorama or a scene. Air Marshal Houston-This came out on 10 October- CERTAIN MARITIME INCIDENT CMI 1064 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-Can we just keep it at the conceptual level for a moment? We will go to the detail in a tick. Would you agree that a chronology is not a document that describes a panorama or a scene? Air Marshal Houston-When I read this it described very well to me what happened out there, or what was happening out there. Senator BRANDIS-The point I am at pains to make to you is that, if something is part of the panorama but it is not an event that is observed to be happening-for instance, a child being in the water as opposed to somebody seeing a child being thrown into the water-that is part of the observed phenomena but it is not necessarily something you would expect to find in a chronology. Would you agree? Air Marshal Houston-This is a military signal. I have had experience of about 100 operations. What I read here gave me a very good picture, straight from the tactical level, as to what was happening out there. It is put in a chronological format, which I think actually adds to the clarity of what was happening out there. Senator FAULKNER-Something that describes a panorama or a scene, to pick up Senator Brandis's words, would be a photograph, wouldn't it? That would describe a panorama or a scene to actually know that they were bodgie in relation to this incident. Air Marshal Houston-I found this quite an informative document. That was what I really needed to- CHAIR-The originator of this document has been trained in order to render a document which is informative and descriptive of the events so that the chain of command can be advised what happened? Air Marshal Houston-Yes. CHAIR-You are trained in interpreting it as well? Air Marshal Houston-Yes. Most of these military signals are in a format that is very difficult for a layman to read and understand, but once you have been exposed to them over the years you become quite comfortable with them. Senator BRANDIS-I understand that. I am only a layman and I did not find too much difficulty reading this document and, for the life of me, 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. It certainly does not support the view that there was a child in the water, does it? It does not support that view, does it? Air Marshal Houston-If a child had been in the water, it would have been reported in the text of the message. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1065 Senator BRANDIS-How do you know that? Air Marshal Houston-That is just the way we do business in the military. Senator BRANDIS-How much do you know about the way they do business in the Navy? Air Marshal Houston-Over the last 12 years, I have been involved in joint operations for seven years, I was head of Strategic Command immediately before this appointment and before that I was Chief of Staff at Australian Theatre. I have been involved in the direction of operations for probably around 70 or 80 operations from the strategic and the operational level over the last few years, and they were all joint operations. As a consequence, I have had a lot to do with the Navy, a lot to do with the Army and a lot to do with the Air Force. Senator BRANDIS-Air Marshal Houston, this document itself, which is signed off by the commander, is itself a compilation, is it not, from all of the source documents and primary sources, including, may I suggest to you, the operations log and the boarding log? Air Marshal Houston-It was issued on the 10th. It followed the events of the seventh and eighth. It makes reference to the fact that this is the report on the boarding and that there were two other reports to follow, one on the rescue operation the next day-I think it is actually in the message. I will read it to you. In fact, it says here that a second chronology of the distress signal p.m. 7 October and subsequent tow action and a third detailing the sinking on 8 October will also be prepared. So what I took this to be, when I was sitting there working quite furiously to meet the minister's requirements as I saw them, was that this provided a comprehensive summary of the events surrounding the incident on 7 October. Senator BRANDIS-You say it was comprehensive, but it is a four-page abbreviated chronology. Yet we have been given dozens of pages of boarding logs, operations logs, 16 witness statements and other signals. This document is not comprehensive, is it? It is a summary of facts that particularly stand out to the author, isn't it? Air Marshal Houston-The military system of messaging is such that this signal, the way I saw it, was designed to clarify the situation that arose on 7 October. Senator BRANDIS-I take it that the situation was whether or not a child went overboard. That was of concern to you at this point. Air Marshal Houston-Yes, it was. Senator BRANDIS-So, if it was the intention of the author of this document to refute the proposition that a child had gone overboard, you would expect it to say that, wouldn't you? Air Marshal Houston-Let me put it this way: it may be intuitive but there was no reference within it to children being overboard or children in the water- Senator BRANDIS-Absolutely. CERTAIN MARITIME INCIDENT CMI 1066 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-but there are a couple of references in it to children which suggest that it did not happen. For example, if we go to the third page and look about halfway down that page, we can see there that it says: 070502 golf Number of SUNCS threatened to commit suicide and throw children overboard unless taken to Australia. Then further down that page we see the narrative that relates to a number of people jumping overboard. I concede the fact that it says here, `Man overboard. Man overboard.' That is a term that is used- Senator BRANDIS-That is my very point; you have anticipated it. `Man overboard' is a piece of naval jargon. Air Marshal Houston-That is correct. Senator BRANDIS-What it means is `human being overboard'. `Man overboard' is apt to describe `woman overboard' and it is apt to describe `child overboard'. It merely means `human being overboard', doesn't it? Air Marshal Houston-That is correct. Senator BRANDIS-So how is that conclusive one way or the other that there were no children thrown overboard? Air Marshal Houston-When you read it and take the whole context-and bear in mind that, although the video was described as being inconclusive, it does not show any children in the water or any children being thrown in the water- Senator BRANDIS-No, it does not. Air Marshal Houston-It does show-as I was briefed at the time-that a child was held close to the side of the vessel. Senator BRANDIS-May I just interrupt you to point out that it is not in controversy on this committee-at least I do not understand it to be-and it has not been suggested that the little girl in the pink jumper who was held over the side was dropped into the water. If there was a child overboard, and there is evidence both ways about that, nobody suggests that it was the little girl in the pink jumper. Air Marshal Houston-Sure. Senator BRANDIS-So you cannot really extrapolate fairly and say that the child held overboard did not go into the water and therefore there was not a child in the water, can you? Perhaps that is what you have done. CHAIR-Can I just interrupt you for a moment, Senator Brandis. Last night I was pulled up several times by your colleagues, and maybe even by you, about interrupting witnesses when CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1067 they were part way through an answer. I think it would be useful if you allowed Air Marshal Houston to complete his answers. Senator BRANDIS-Fair enough. Please continue, Air Marshal Houston. Air Marshal Houston-I suppose what you would like to know is why I made the assessment that I did. Senator BRANDIS-Indeed I do. And when you address that, please bear in mind my criticism that what you have done is make an impermissible inference; that is, that because there is only a reference to a child being held overboard, it for some reason follows that there was not a different child in the water. Senator JACINTA COLLINS-I do not read that inference. Air Marshal Houston-First of all, if I can just continue, 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 vicinity of wheelhouse threatened to throw women and children overboard. This did not occur.' From all of this, there were people overboard. I believe there were somewhere between 12 and 14 people thrown overboard, as I was briefed at the time by Brigadier Bornholt. On reading this, on being briefed by Bornholt, having been- Senator BRANDIS-But Bornholt was not a witness. He could not have told you anything. Air Marshal Houston-No, but Bornholt had seen a lot of the information. Having spoken to Titheridge, I had to make a call. Senator FAULKNER-Could you pause there. It is true, is it not, Air Marshal, that Brigadier Bornholt was central to the key issue: that the photographs of the event allegedly depicted-that is, children being thrown overboard-were in fact taken at the time of the sinking of SIEV4. Of course, Brigadier Bornholt was not out on the Indian Ocean but he had had early and clear knowledge of the fact that those photographs were not evidentiary support of such an incident. Bornholt knew that. He knew it very early in the piece. He knew it a month before he had any conversation with you when you were Acting CDF. We have got to be reasonable about this. While Bornholt was not out there on HMAS Adelaide, as we all understand, he was central to the fact and understood, because of his role in Defence, that the photographs were not evidentiary support of children being thrown overboard. So he did actually have in his possession first-hand information that was highly relevant to this event. Air Marshal Houston-That is correct. Senator BRANDIS-Air Marshal Houston, let us draw this together, please. At the time you spoke to Mr Reith you had heard a version of the video. And it is no criticism of you that you did not see the video, because you tried to and it was not possible. The view that was put to you, which I understand you adopted, was that the video was inconclusive. You had read the chro- nology, and may I put it to you that the chronology was also inconclusive-do you accept that? CERTAIN MARITIME INCIDENT CMI 1068 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-What I had to do was review everything that was available to me. What was available to me was obviously the conversation that I had with Air Vice Marshal Titheridge. He gave me some information about the video. I concede he had not seen it himself. I then spoke to Bornholt. Bornholt knew a great deal of information. He was, after all, the military officer involved in public affairs and communications. He had been intimately involved in all of this on a day-by-day basis since the events of 7 and 8 October. He also presented me with this signal. The signal came straight from the tactical level. It was a chronology of the events that related to the 7th. I looked at all of this and then I made an assessment. First of all we talked a lot about the photographs as well, and I am sure we will get on to that. It appeared to me that, first of all, there was no evidence available to support the fact that a child had been thrown overboard and, secondly, the photographs related to the events of 8 October, not 7 October. I then looked at all of this and when I advised Minister Reith, you will note from my previous evidence that I said that, on the basis of what I had been presented with, it appeared to me that no child was thrown overboard and that the photographs were misrepresented. Senator BRANDIS-We will leave the photographs to one side. I am not asking about the photographs. There is no controversy that the photographs were misattributed. All you had to go on when you offered that view was this chronology, which I have suggested to you was inconclusive, and a second-hand account of the video, which you agree was inconclusive. You knew, didn't you- Air Marshal Houston-I did not agree that it was inconclusive in the broadest sense of the word; I said it was inconclusive in supporting the fact that children had gone overboard. Senator BRANDIS-It did not tell you one way or the other, did it, for the reasons you have already explained this morning? Air Marshal Houston-What I am saying is that I did not agree. I just wanted to indicate to you- Senator FAULKNER-This is really important. The photos and the video are alleged to be evidentiary support for the fact that children had been thrown overboard. If there is no evidentiary support and if the photos and the video do not depict this-and this is the whole point about the amount of evidence and public debate about the photos and the video-surely that properly leads anyone to the conclusion that there are concerns about the original claims which the photos and the video are supposed to support. That is the link. I am sure you understand that. Senator BRANDIS-Just a moment. Do you adopt what Senator Faulkner says as being a fairly accurate description of your process of reasoning? That is, the discrediting of the photos as an evidentiary source had, as it were, in your mind the negative effect of suggesting the op- posite? Senator FAULKNER-That is my view. Senator BRANDIS-Do you adopt Senator Faulkner's process of reasoning? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1069 Air Marshal Houston-Can I just explain the military approach. We are trained to act on the information that is available at the time. We talked about what happens at the tactical level. Sometimes at the tactical level that information can be incomplete. In these circumstances, I had before me something I am very familiar with: a chronology which was a very good summary for me as to what happened on the 7th. There was a problem with the photographs, and we have spoken about that. I had had advice from Air Vice Marshal Titheridge and from Brigadier Bornholt. I then made my own assessment. My assessment is as depicted in the Hansard of the Senate estimates, which was that, when I spoke to Minister Reith, I said, `There appears to be a lot of confusion around the events of the 7th and 8th. In my opinion no child went overboard. My assessment is that no child went overboard and the photos relate to the events of the 8th, not the 7th.' Senator BRANDIS-Leave the photos to one side. I understand that. I accept that you are obliged to do the best you can with the evidence that is available to you and to arrive at the conclusions suggested by that evidence. But surely you are obliged to do one other thing, and that is to ensure that the facts and the evidence which form the basis of your conclusions are as complete as they can be. Do you accept that proposition? Air Marshal Houston-I accept that proposition and, based on the advice that I gave Minister Reith, I felt that I had done everything in my power with everything that was available to give him the advice that I gave him. Senator BRANDIS-Were you aware on 7 November that 16 witness statements had been taken from the crew of the Adelaide? Air Marshal Houston-No, I was not. Senator BRANDIS-You are aware of that now, aren't you? Air Marshal Houston-I am now, yes. Senator BRANDIS-You are aware, aren't you, that two of those witness statements categorically say that there were no children in the water and they support the conclusion that you advanced? One of the witness statements says that that witness believed that there was a child in the water, so it contradicts the proposition that you have concluded, and the other 13 are inconclusive: six do not even address the issue and seven are by seamen who said they did not see a child in the water but they do not purport to have seen the entire event. You are aware of that now, aren't you? Air Marshal Houston-I am aware of that, but, in the circumstances that I was placed in, I had to go with the best information that was available, and in my opinion this chronology is a fairly complete document. It is a summary produced by the captain of the ship as to what hap- pened on 7 October. Senator BRANDIS-And it is a summary on the basis of source documents, including the boarding log? Air Marshal Houston-Yes. CERTAIN MARITIME INCIDENT CMI 1070 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-I do not say that you could have had the boarding log on the morning of the 7th, and there is no criticism of you for not consulting the boarding log. I have put the boarding log beside you at your left hand, Air Marshal Houston. Would you take it up, please? It is not paginated but I have put a little flag on a page. The date is Sunday, 7 October, and the first time entry in the left-hand-most column is `0518'. Do you see that? Air Marshal Houston-Yes. Senator BRANDIS-That is, as we take it, local time. Glance through the document to satisfy yourself, if you like, or just look at the front cover, but you accept that the boarding log is going to be the best source document of the events, or at least that there is going to be no better source document than the boarding log? Air Marshal Houston-Once again, this document that I had was obviously sourced from this by the captain of the ship. My expectation was that what I had in my hand was something that was sourced from all the information that was available, including the boarding log. There may have been other things that the captain was aware of that are not recorded in the log. Senator BRANDIS-Absolutely, Air Marshal, and what you did was make that assumption that you could rely upon the four-page chronology to inform you of all of the material facts that could be gleaned from, among other things, the boarding log. Is that right? Air Marshal Houston-Correct. CHAIR-What you have described is standard procedure, isn't it? Air Marshal Houston-Yes. In the military we often have circumstances that you have your log, everything is recorded in the log and then at some later stage the commander will then put in a report. He will use everything that is available to him to come up with a summary, a chronology or something that gives a description of the whole thing, so that a person like the CDF, who is very busy, does not have to go to a mountain of paperwork; he can rely on one or two very important documents. Senator BRANDIS-Commander Banks, of course, was the author of or the person who signed off on the signal, wasn't he? I think we have established that. Air Marshal Houston-That is correct. It came from HMAS Adelaide. It would have been released by the ship's captain. Senator BRANDIS-Go to the boarding log, please, to the page that I have opened for you. We will start at about 0540, about two-thirds of the way down the page, and an entry there: PERSON ATTEMPTING TO JUMP O/B BPARTY TRYING TO HOLD THEM & STOPPING THEM JUMPING. Do you see that? Air Marshal Houston-Yes. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1071 Senator BRANDIS-You do not for a moment doubt the accuracy or the authenticity of anything in this boarding log, by the way, do you? Air Marshal Houston-I have not seen this boarding log before. I would hope that it is accurate. Senator BRANDIS-I am going to take you through a couple of bits in it, you see. 0540 is also recorded as sunrise. Then at 0541: THROWN CABLE & GPS OVER SIDE (1 MALE) At 0543: MOB- that is, man overboard- STBD SIDE 3 IN WATER Do you see that? Air Marshal Houston-Yes. Senator BRANDIS-And the acronym for human beings overboard is MOB-in other words, MOB does not mean adult male overboard, it means person overboard, don't you agree? Then at 0543 it says there were four SUNCS-suspected unlawful non-citizens-overboard. That is age non-specific. It could be a child or a grown-up, couldn't it? Air Marshal Houston-It says four SUNCS. That means to me four suspected unlawful citizens. Senator BRANDIS-And that could be an adult or child? The next entry is 0543 with five overboard. When you come down to the very foot of the page, there is another: MOB- man or person overboard and- 4 SUNCS IN WATER Then there is five in water. On the top of the first page 550: BP- that is boarding party- ENTERING BOAT (MAX) Do you see that? CERTAIN MARITIME INCIDENT CMI 1072 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-Yes. Senator BRANDIS-Then the next three lines have: BELIEVED CHILD LAST MOB That does not much help the case that none of the men overboard were children, does it? Isn't that direct evidence from a source document that one of the men overboard was a child after all? Air Marshal Houston-I would ask the captain of the Adelaide about that. I think he has spoken extensively. Senator BRANDIS-Air Marshal Houston, I am not saying that you could have, but if you had seen that document before you gave your advice to Mr Reith that the man on the spot in the boarding party recorded at 5.50 a.m. that he `believed child last man overboard'- Senator JACINTA COLLINS-Chair, I seek to clarify what Senator Brandis is talking about here. Chair, point of order. CHAIR-Order! Senator BRANDIS-would you have given the advice to the minister on 7 November that you gave? Senator JACINTA COLLINS-There is an important issue in this log that he is misrepresenting- CHAIR-Order! There is a request, Senator Brandis, simply to identify what part of the log you are talking about. Senator JACINTA COLLINS-No, I am not seeking to clarify what part of the log it is. I know that. What Senator Brandis read was `boarding party: entered boat'. It actually says boarding party: B ENTERING BOAT (MAX) What that actually refers to is the RHIB that was departing from the ship, not the RHIB that was at the incident. Senator BRANDIS-Senator Collins, that is your interpretation. But I am interested in the next- Senator JACINTA COLLINS-It is quite clear-BEB. Senator BRANDIS-Please stop interrupting me and trying to make political points, Senator Collins. Senator JACINTA COLLINS-Be accurate then, Senator Brandis. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1073 Senator BRANDIS-I am interested in the next line. Senator JACINTA COLLINS-Be accurate. CHAIR-Let's not get into trading questions about who is making political points. Senator BRANDIS-I am interested in the next line and in hearing you correct me if I am misreading it. It says: BELIEVED CHILD LAST MOB That is what the second line of that page says, doesn't it, at 5.50? Air Marshal, do you agree? Air Marshal Houston-Do I agree what? Senator BRANDIS-That that is what it says. Air Marshal Houston-That is what it says. Senator BRANDIS-Had you had that piece of information on 7 November, you would not have given the advice to Minister Reith that you gave him, would you? Air Marshal Houston-Well, this happened on 7 October. This is the log. But after the event, what would be important would be for the captain to sit down, review the log, and then give his assessment of these circumstances. Senator BRANDIS-I understand that. Air Marshal Houston-I am sitting up at the strategic level. This is a tactical level document. In all of my experience at the strategic level, I have never seen tactical level documents such as this. I rely on quality advice that comes up through the chain of command from people like Commander Australian Theatre, the joint task force commander and the tactical commander on the spot. I do not think it is fair to say that, if I had seen this log, I would not have given the advice. The point is that I have to rely on the advice that comes up the chain of command about what happened out there on the ocean. Senator BRANDIS-But, Air Marshal Houston, the advice that came up the chain of command, as recorded by Brigadier Silverstone in his diary note which he made within minutes of the telephone conversation, was that he was told by Commander Banks, as the event was happening, that there was a child overboard. Commander Banks does not agree with that recollection of the conversation but conceded to me that it may be correct. Brigadier Silverstone is quite firm that that is what he was told and that is what he diarised at the time. That is the information coming up the chain of command. We now know that the boarding log recorded, by the people actually on the spot as it was happening at 5.50, `believed child last MOB'. If you had had those two pieces of information in your mind, surely you would not have told Mr Reith that there was no child overboard, would you? Air Marshal Houston-I did not have that information in my mind. CERTAIN MARITIME INCIDENT CMI 1074 SENATE-Select Wednesday, 17 April 2002 Senator BRANDIS-I know you didn't. Air Marshal Houston-All I am saying is that this document here was all I had. Senator BRANDIS-I understand that. You have made it very clear, Air Marshal Houston, but that is not the question I am asking. Senator JACINTA COLLINS-But it reflects that the child was retrieved from the water. CHAIR-We ought to get it very clear for the Air Marshal. Brigadier Silverstone reversed his original advice upon further advice from Commander Banks. In evidence to this inquiry, he said that he did not place too much store in the first piece of advice. What he regarded as more important was the speed and accuracy with which it was corrected. Senator BRANDIS-Mr Chairman, that is not right. What he saw- CHAIR-That is right, I am sorry to say for you, Senator Brandis. Senator BRANDIS-Brigadier Silverstone has never vacated his account of the conversation with Commander Banks. That is the point. CHAIR-He has said that he corrected it as soon as he got firm advice that no children were thrown overboard. Senator BRANDIS-You ask him some questions when it is your turn, Mr Chairman. Senator Jacinta Collins interjecting- Senator BRANDIS-Are you going to try to cover this up, Senator Collins, just like you tried to cover up the child abuse? Senator JACINTA COLLINS-I do not need to cover up anything. CHAIR-Why did the government lie on this matter, Senator Brandis? Let us get into a trade of insults- Senator JACINTA COLLINS-I raise a point of order, Chair. I ask that Senator Brandis withdraw that-`cover up child abuse'! Would you please ask Senator Brandis to withdraw that reflection on my character. For heaven's sake! He has lost it. Senator BRANDIS-I withdraw the remark. CHAIR-Thank you. Senator BRANDIS-Air Marshal Houston, come to my narrow question, please. I have been asked by the chair to ask narrow questions, and this is a narrow and specific question. If you had known of this piece of information that the boarding log recorded at 5.50 a.m. `believed CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1075 child last MOB' would you have advised the minister on 7 November that there was not a child overboard? Air Marshal Houston-The important thing here is that I would rely on what had been provided by the captain of the ship. Senator BRANDIS-But he was not the witness. We have agreed that the signal was derived in part from the boarding log. This is the source document, and this is the evidence of a child overboard. Senator JACINTA COLLINS-And he assessed and discarded that element. For goodness sake, Senator Brandis, I know you are thick. Air Marshal Houston-In any tactical situation, there can be a lot of confusion and what is important is that, after everything settled down, the captain then talks to all the witnesses and he then makes his assessment and he will then report back to higher authority. That is the important thing. As the CDF, I would never know about that log entry; I would not expect to know about that log entry. Senator BRANDIS-We know that. Air Marshal Houston-But I would expect to know, in these circumstances, about a docu- ment such as this. Senator BRANDIS-What I am trying to demonstrate is that the four-page signal based on the boarding logs, which you suggested about 20 minutes ago could be relied upon to record all of the material facts-or words to that effect-in fact failed to record this highly material fact that at 5.50 the boarding log entry is `believed child last MOB'. In view of that, your assumption that the chronology was reliable is plainly wrong. It is not a criticism of you, of course, but that assumption can no longer be supported, can it? Air Marshal Houston-I think the important thing is that the captain of the ship released this after he had been through the log, after he had spoken to all the witnesses and he had come up- Senator BRANDIS-No, his evidence was that when he prepared the document he did not read the witness statements before he prepared it. His evidence was that he remembers speaking to two of the 16 and he thinks he would have spoken to another two. So, to the extent to which you made that assumption, that assumption was also not available to you, Air Marshal Houston. CHAIR-I think it is important to say that Commander Banks's evidence is also that, after he had read the witness statements, he would not have changed his signal had he read them before he provided his signal. Senator BRANDIS-I will ask the question once more. We understand the process, we understand the systems and we understand the protocols. I want you to answer this question. If you had been aware on 7 October of this piece of information-that is, that the boarding log CERTAIN MARITIME INCIDENT CMI 1076 SENATE-Select Wednesday, 17 April 2002 records at 0550 `believed child last MOB'-would you have advised the minister that there was no child overboard? Air Marshal Houston-If that had been in here, which I think is what you are getting at- Senator BRANDIS-Yes, that is a good way of approaching it. Air Marshal Houston-Of course what would have been required would have been more questions. That would have been documentary evidence that a child perhaps had been in the water. If the captain had confirmed the veracity of that entry in the log and had put it in his summary, of course that would have been the documentary evidence that was required to support the fact that there were children in the water. But that was not here. Senator BRANDIS-I understand what you are saying. Air Marshal Houston-Let us suppose that that one item was in here. I would have still spoken to the minister about the confusion, the fact that there was a problem with the photographs and so on. If you go back to my evidence to Senate estimates- Senator BRANDIS-Yes, I read your evidence carefully. Air Marshal Houston-I did say that it was on the basis of what had been presented to me. So there is an acknowledgment there that perhaps there is more out there that I have not seen. But, on the basis of what I have seen, my assessment is that there was no child in the water. Senator BRANDIS-May I take it, then, that if the four-page signal upon which you did rely had included the words from the boarding log `0550 believed child last MOB', you would not have given the advice to the minister you did give? Air Marshal Houston-Not in relation to the first part of it, which was the child overboard. Senator BRANDIS-Thank you. I think Senator Ferguson has some questions. CHAIR-Before I give Senator Ferguson the call, just on that last point, `believed child last MOB', that part of that signal that you have been directed to, do you regard that as evidence that a child was thrown overboard? Air Marshal Houston-No, I do not. It means that a child could have been in the water. I guess my concern at the time was children thrown overboard, children in the water. I had a concern from two points of view. CHAIR-And at this time a number of people were reported going into the water. There is no report that any of them went in against their own will. Senator BRANDIS-On your version of events, Senator Cook, none of them are children. Here is the child who is the MOB, the missing child the negative proof of which we have been seeking. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1077 CHAIR-Thank you for your assistance, Senator Brandis. I ask the air marshal this question: at this point in the log a number of people have been jumping in the water, and there is no evidence of their being forcibly pushed into the water. This log reports particular events. Even on the words that have been presented to you, there is no evidence that the child went into the water against its will, if in fact a child did go in the water. The language is `believed'. That is not conclusive, is it? Air Marshal Houston-No, it is not completely conclusive. We are talking hypothetically here but, if I had had a doubt, if there had been something else in the documentation that had suggested that children had been in the water, that would have changed the way I presented my advice. CHAIR-I asked this question earlier. This is, as I understand it, routine operational procedure. You do not wait until you get all the source documents; you rely on the commander who is an officer trained in synthesising and comprehensively encapsulating a situation so that senior officers can understand what is happening. That is the normal way in which the military operates, isn't it? Air Marshal Houston-That is correct. Right now we are running about 17 or 18 operations and the CDF of the day has a lot on his plate. Quite clearly, all of that information needs to come into a document that summarises the key points and the key issues. To some extent that is what this is all about. CHAIR-Yes. And in major operations that is the system upon which you make decisions of considerable moment. Air Marshal Houston-Generally speaking, a document would come up and if there are any concerns or something is not clear the superior commander will go back to the subordinate commander and discuss those items of concern. Then he will have it much clearer in his mind as to what is going on. CHAIR-Senator Ferguson tells me he has five questions. Senator JACINTA COLLINS-I want to follow on this issue. I do not have much time aside from this issue and this is probably the best time to do it if Senator Ferguson is going on to other matters. Senator FAULKNER-That seems sensible. I will wait until Senator Ferguson has concluded his questions. CHAIR-All right, Senator Collins. We have just under 30 minutes. Senator JACINTA COLLINS-It is very short. CHAIR-We do want to get Air Marshal out of here by 10.30. Senator FAULKNER-We must try to stick to our time allocation. CERTAIN MARITIME INCIDENT CMI 1078 SENATE-Select Wednesday, 17 April 2002 CHAIR-Yes, today of all days. Senator JACINTA COLLINS-Air Mashal, looking at this log-and taking into account that there are three logs that I have been through in quite some detail-this example is obviously the much discussed youth overboard. Senator BRANDIS-It was a child. Senator JACINTA COLLINS-We have various reports of a youth variously estimated to be 15, 18 or 21. Senator BRANDIS-Are we changing the language now that the facts do not fit, Senator Collins? It says, `child'. Senator FAULKNER-You know what it is. Senator BRANDIS-I know exactly what it is. Senator JACINTA COLLINS-We have Commander Banks' evidence that on reviewing the logs and on reviewing the fact that no child was retrieved from the water, he discarded this element of the information. That is quite clear and on the record. It is unfortunate for Senator Brandis that he did not seek to go through this issue with the most relevant person who is obvi- ously Commander Banks-because he would reiterate what he said to others. Senator BRANDIS-This is like Ron Zeigler, `That fact is no longer operative.' Senator JACINTA COLLINS-Senator Brandis, you seek to make cheap political points to the wrong witness because of your own negligence. Senator BRANDIS-I am only interested in the facts. I am only interested in what the document says, Senator Collins. CHAIR-Order! Senator Collins, please ask your question. Senator JACINTA COLLINS-Because Senator Brandis probably has not been properly through this log I will take Air Marshal Houston through the relevant details. I reiterate, it would have been better if this had been done in detail with Commander Banks but, in his absence, and since Senator Brandis has raised this with Air Marshal Houston-I believe incorrectly-I will do it with Air Marshal Houston. If we look at the 5.50 reference it says: BP B entering boat (Max). What we know about Max is that it was the second RHIB. What we know is that boarding party B, at this point in time, is entering Max at Adelaide. It is not at the incident. It is some distance from the incident and whoever is being referred to as believing that a child was the last man overboard is probably also in the process of boarding that RHIB. That is the status of that information. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1079 CHAIR-Is that what you are seeking confirmation of? Senator JACINTA COLLINS-Do you read it that way, Air Marshal? Air Marshal Houston-Fundamentally, I am not a naval officer and I think this is something that you need to direct to Commander Banks. Senator JACINTA COLLINS-You would prefer to rely on the Commander Banks assessment of the various pieces of information. Is that correct? Air Marshal Houston-Yes, I would. Senator JACINTA COLLINS-Okay. We know that Ms Bryant raised with Commander Banks this component of the log. It is in the Bryant report, and this is why I was somewhat surprised that Senator Brandis had not raised this issue earlier. We know that, on the basis of Ms Bryant raising it with Commander Banks, Commander Banks explained why he gave that reference little weight. You would expect, if given the opportunity to question Commander Banks further on his assessment, that you would get the same explanation, wouldn't you? Air Marshal Houston-I would expect that, yes. Senator JACINTA COLLINS-It certainly did not lead Ms Bryant to stray from the conclusion she made, that no child had been thrown overboard. Air Marshal Houston-Yes. Senator JACINTA COLLINS-The point I want to go to, though, further in this log, is that at 0554 we finally have boarding party B alongside the SIEV and alongside those that Commander Banks would have been relying upon for their assessment on this `child overboard' incident. We know from Commander Banks that he had discussions with several people about the youth-in fact, I think we have on evidence pictures of the RHIB and discussions over which of the people in the RHIB might be a youth. It is quite easy to see that this incident refers to that youth incident. Air Marshal Houston-Yes. Senator JACINTA COLLINS-To go back to Commander Banks's assessment in the signal that we were looking at earlier, you would expect that, if Commander Banks gave the reference in this boarding log-again, only one of three logs-then he would have included it in his signal. That is a fair assumption from your point of view, isn't it? Air Marshal Houston-Yes, it is. Senator JACINTA COLLINS-Whilst this log that Senator Brandis made some weight of is called the boarding log, it is actually collated from radio signal on the side wing of the bridge of the ship. CERTAIN MARITIME INCIDENT CMI 1080 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-Yes. Senator JACINTA COLLINS-So it is no closer than the other two logs. Air Marshal Houston-I was the Acting CDF: I would like to help you with this, but I really think that these sorts of issues are issues for Commander Banks, and you should perhaps call him back to address these to him. Senator JACINTA COLLINS-I apologise that this has been directed at you, because I agree with you. My view is that Commander Banks has dealt with this issue quite clearly, quite competently and quite adequately. I believe it is a cheap trick of Senator Brandis's to try and put this again on the public record before you in the position that you are in. Air Marshal Houston-I do not want to get involved in that. Senator FERGUSON-I think that should be withdrawn. Senator BRANDIS-Chair, I ask that that remark be withdrawn; I find it offensive. CHAIR-I did not hear it- Senator JACINTA COLLINS-I do not believe it is unparliamentary. CHAIR-I am not asking someone to repeat it if they thought it was offensive but, if something unparliamentary has been said, please have it withdrawn. Let's get on with it. Senator FERGUSON-Thank you, Mr Chairman. I think Senator Collins has finished. Air Marshal Houston, I understand that you are currently the Acting Chief of the Defence Force. Air Marshal Houston-That is correct. Senator FERGUSON-Did you view the Four Corners program aired by the ABC on Monday night? Air Marshal Houston-I did. Senator FERGUSON-I want to ask you three or four questions arising from that program as they relate to this committee. Air Marshal, the implication that could be drawn by any reasonable viewer of that Four Corners program was that the Australian Defence Force used excessive force, including the beating of potential illegal immigrants. Is that a fair inference to draw from that program? Air Marshal Houston-I think that there were suggestions along those lines. Senator FERGUSON-Previous evidence before this committee has said that only reasonable or minimum force was allowed in the rules of operational engagement for Operation Relex. Is that correct? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1081 Air Marshal Houston-That is correct. Senator FERGUSON-Are you confident, on the evidence that has been presented to you as Acting Chief of Defence Force, that the ADF has met that obligation? Air Marshal Houston-Absolutely. After the Four Corners program, we had a look at all the aspects that were raised, and it is quite clear. First of all, there was no use of any electrical cattle prod type implements. The only things the people were equipped with were Batons and they carried capsicum spray. Senator FERGUSON-I would like to move on to the issue of capsicum spray in a minute. So you are confident that they have met their obligations under those requirements? Air Marshal Houston-Absolutely. I have total confidence that our Navy and Army people who were out there throughout this very demanding operation used minimum force at all times. Senator FERGUSON-With regard to the use of capsicum spray, the committee has been told of one incident, I think, aboard SIEV7. Given that minimum force is the requirement, are you confident that in this case the use of capsicum spray was needed? You may be able to give us some details of the incident. Air Marshal Houston-Yes, I am totally confident that capsicum spray was only used, on the basis of the advice I have been given, on one occasion. That was with regard to the vessel SIEV7, and you may have been briefed by other witnesses about this. Senator FERGUSON-Yes, we have. Air Marshal Houston-Personnel from Arunta were aboard SIEV7. After the announcement that the SIEV was returning to Indonesia, an attempt was made at first light by the asylum seekers to disable the engine on SIEV7. The Army transit security element had a protection party aboard and they created a barrier to prevent these people from getting to the engine bay. When they broke the barrier, a non-commissioned officer assessed that the security of the engine was under threat and that his two-man security element could not control the large number of people who were bearing down on them. At that point, he withdrew his spray canister and, in total accordance with the rules of engagement, applied the spray with one line of spray across the advancing line of people. That corrected the situation, the people backed away and the engine was not interfered with. That is the only instance I am aware of. Senator FERGUSON-So in relation to the use of capsicum spray, it was used only in one instance, on one occasion? Air Marshal Houston-On the basis of the advice I have been given, yes. Senator FERGUSON-There were allegations about electric cattle prods or electric batons of some form being used against the unauthorised arrivals. Can you clarify the situation, because I have been led to believe that in fact the Defence Force are issued with metal detectors but nothing like electric prods? CERTAIN MARITIME INCIDENT CMI 1082 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-Essentially, these people were carrying batons and they were also carrying metal detectors. Senator FERGUSON-For what purpose the metal detectors-to look for knives? Air Marshal Houston-The metal detectors are to look for weapons and things that might be hidden that might constitute a threat to our people aboard these vessels. I understand the metal detectors have little lights on them, and when they detect metal the lights flash. That may be what was being referred to during the Four Corners program. In terms of cattle prod type implements, I stress, as the minister has already said, that our people are not issued with those, nor do they carry them. We went right down to the people who were actually on board that vessel and none of them had any sort of improvised device or anything. They just had the standard issue baton, capsicum spray and metal detector. Senator FERGUSON-The other issue was the refusal of medical attention. That was the other issue that was raised on this program; I think it was in relation to some woman on board one of the vessels. Previous evidence given to this committee has been that decisions on evacuations have always been left to experts on the spot, not directed from Canberra. Can you elaborate as to whether that is correct? Air Marshal Houston-I am only the Acting CDF, but certainly that is the way that we have conducted ourselves for years. We always take the advice of the people on the spot and if there is a requirement for a medical evacuation, the recommendation would come from the tactical level and steps would be taken to mount the evacuation. Senator FERGUSON-The final issue that I want to raise is the allegation about unseaworthy boats. We have had evidence given to us by senior serving officers in the Navy that only boats that are seaworthy are turned around and sent back. This was a rather serious allegation that was made because in the conclusion to this event there were three people that were missing. Given the allegations of the Four Corners program, do you have any evidence to suggest that the Navy has not met that standard, that only seaworthy boats are returned to their port of embarkation? Air Marshal Houston-No, I have no evidence whatsoever, but I am totally confident that the Navy would do everything they could to ensure that the vessels that were turned around and sent back were seaworthy to go back to Indonesia. As I recall it from the Four Corners program, that actual incident related to when the vessel ran aground, not while it was transiting back to Indonesia. Senator FERGUSON-So it was seaworthy? Air Marshal Houston-It was seaworthy- Senator FERGUSON-The fact that they ran it aground caused the problems. Air Marshal Houston-The way it was described in the Four Corners program was that it actually happened when it went aground on Roti Island. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1083 Senator FERGUSON-So just to summarise: the ADF has never used excessive force; the capsicum spray has only been used on one occasion; no electric cattle prods and no electric batons of any sort have ever been used by the defence forces; medical attention is determined by experts on the spot, not directed from Canberra; and only seaworthy boats have ever been turned around and sent back to their port of embarkation. Is that a correct summary of the implications? Air Marshal Houston-I would agree that that is a correct summary. Senator FERGUSON-Thank you, Air Marshal Houston. I am sure that your response to the ABC's Four Corners allegations and implications will receive the prominent publicity that they deserve on the ABC. Senator MASON-I am sure that the ABC will show that examination, Senator. Senator BRANDIS-Do not hold your breath, Senator Ferguson. Senator FAULKNER-The first issue that I would like to briefly deal with is the one that Senator Brandis spent an hour and a half on this morning. Air Marshal Houston, I just want to take you briefly back to Ms Bryant's report on this matter. I do not know whether you have that in front of you or not. Air Marshal Houston-I do not have that in front of me. I will just get a copy. Senator FAULKNER-I take you to page four of Ms Bryant's report under the heading `The "SIEV4" man overboard incident'. If you look at the second last paragraph, about halfway through-and I think you can confirm for me that I read it accurately-you will see that it says: The boarding log records 12 SUNCs overboard at around 0843 (AEST)- I assume that that is Australian eastern standard time. Air Marshal Houston-That is correct. Senator FAULKNER-It continues: and all SUNCs retrieved by inflatable boats shortly afterwards. I think that I have faithfully read that into the transcript, have I not? Air Marshal Houston-Yes. Senator FAULKNER-If I can read on for a moment, the report then says: The entry at 0550 local time (0850 AEST) also shows the second boarding party, which was entering an inflatable boat in preparation for boarding the SIEV, "believed child last MOB". Is that, again, an accurate reading of what is in Ms Bryant's report? CERTAIN MARITIME INCIDENT CMI 1084 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-Yes. Senator FERGUSON-Chair, one of our television cameras is over the shoulder of an officer in the audience, and I do not think it is right that they should be focusing on the documents that anybody in the audience has. We need to be careful with television cameras. CHAIR-Thank you, Senator. Senator FAULKNER-In support of that point of order, I think Senator Ferguson is right to point it out, but both our still cameramen and our television cameramen do understand these things. We always accept their professionalism. It always worries me when cameramen are around, more because we think of being shot- CHAIR-We have to excuse this witness at 10.30, so let us get on. Senator FAULKNER-I think that the cameramen understand their responsibilities. I was just quoting, from Ms Bryant's extract of the log, `believed child last' overboard at 0550 local time. Do you see that reference in Ms Bryant's report? Air Marshal Houston-Yes. Senator FAULKNER-Then it goes on to say: Later signals indicate that a total of 14 SUNCs jumped overboard during the incident. That would be standard operating procedures: you would expect later signals on these sorts of issues, wouldn't you? That is what you have been canvassing this morning? Air Marshal Houston-Absolutely. Senator FAULKNER-Then it goes on: Statements provided by sixteen crew and the CO of the HMAS ADELAIDE report that a number of people, including a male estimated to have been 13-15 years old, jumped overboard voluntarily and were retrieved from the water and returned to the SIEV. Senator BRANDIS-Senator Faulkner, are you reading from what you routinely referred to in the Senator estimates committee as the `discredited Bryant report'? Senator FAULKNER-Yes I am. Senator JACINTA COLLINS-Discredited by what was not in it compared to what was in it. CHAIR-Order! We only have a few more minutes left to us with this witness. Please go to the questions. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1085 Senator FAULKNER-Senator Brandis, I am impressed that you now share my view that this report is discredited. Senator BRANDIS-I was only quoting you against yourself, Senator Faulkner. I do that sometimes. CHAIR-Go to the questions, please. Senator FAULKNER-You spent an hour and a half talking about this. Let us just quickly deal with it. CHAIR-If you do not have a question I will excuse this witness forthwith. Please go to questions. Senator FAULKNER-Mr Chairman, with due respect, I would like to be able to ask questions without interruption. CHAIR-Yes, I know. That is why I am suggesting you go to them forthwith. Senator FAULKNER-I do have a question. And if order were maintained at the committee I might be able to ask it. Air Marshal Houston, you note the reference here in Ms Bryant's report to the male estimated to be 13 to 15 years old-you have seen that reference? Air Marshal Houston-Yes, I have. Senator FAULKNER-I do not know if you are aware or not-please let us know-that in some of the witness statements that the commanding officer organised from crew of HMAS Adelaide I think there was even a suggestion of up to the age of 21. Senator JACINTA COLLINS-That was in later discussions. Senator FAULKNER-Yes, it was later discussions. So the age of this particular child, male, `youth' is another terminology that has been used, is unknown. I am not going to get into definitions of child, whether at 13 to 15 years old you are a child or not. But as you read those few sentences-which, as I say, explain the incidents which Senator Brandis has been talking about for some 1½ hours-and you look at the information that was available to you in signal form from HMAS Adelaide on 7 November last year, my question-there is nothing new in this-is: as far as proper reporting processes go, as far as an appropriate course of action, is there anything from what you have seen-and I accept that you have not been intimately involved in the chain of command during the relevant period in October-that you think might be valuable to draw to the attention of this committee in relation to how this particular matter is reported about the child, the youth, the 13- to 15-year-old, however it is defined? Is there anything that is concerning enough for you to bring to this committee's attention about the reporting from HMAS Adelaide? Or would you say in general it is consistent with what you would expect on a naval vessel, given your broad defence experience? CERTAIN MARITIME INCIDENT CMI 1086 SENATE-Select Wednesday, 17 April 2002 Air Marshal Houston-I think the initial reporting was unfortunate. Things were done very quickly- Senator FAULKNER-This is the telephone calls? Air Marshal Houston-Yes. Senator FAULKNER-I am talking about the written record here. Air Marshal Houston-In terms of the written record, I think that this summary certainly gave me a reasonable picture. I think if- Senator BRANDIS-Although we now know it is- CHAIR-Order! Senator JACINTA COLLINS-Senator Brandis, you have had ample opportunity. CHAIR-Order! Please proceed, Air Marshal. Air Marshal Houston-I thought this was about what I would expect in terms of a report from a naval tactical commander. I think there was enough there for me to make a call. Senator FAULKNER-That is pretty consistent with advice that we have got from others in the chain of command, including quite senior naval officers of the rank of rear admiral, I think. It is your personal view; you are entitled to hold a view and express it here, and I have asked you to do that. I only asked you because it is a matter that has been canvassed for 1½ hours, and if we are going to canvass old news for 1½ hours we are going to be here for an awfully long time. I would like to get on to some new areas, if that is all right, for the brief amount of time I have available. CHAIR-You have eight minutes. Senator FAULKNER-I have 11 minutes available to me, technically. Air Marshal Houston, you talked in the Senate estimates committee, in relation to your contact with Minister Reith on the 7th, about the `long silence'. Minister Reith gave a lot of excuses for that long silence in that phone call. The first one was poor reception. Can I ask you about that. Was there any suggestion given by Mr Reith or was there any other cause for concern on your part that Mr Reith may not have been hearing what you were saying on your end of the phone conversation? Air Marshal Houston-He did not indicate that to me, no. Senator FAULKNER-Did the reception seem reasonable, given that you were the party on the other end? Air Marshal Houston-I was sitting in the comfort of an office- CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1087 Senator FAULKNER-On a speaker phone, I recollect. Air Marshal Houston-and he was on a mobile. It seemed to be going okay. Senator FAULKNER-You would know, after your Senate estimates testimony, that at one point former minister Reith indicated that the reception was poor. Are you aware of that? Air Marshal Houston-I was aware of that. Senator FAULKNER-He did not complain at the time about poor reception? Air Marshal Houston-No, he did not. Senator FAULKNER-Another of his excuses for not acting on the information that you provided to him was that it did not stick in his memory. The feeling I got from the evidence that you gave was that this was quite stunning, in a way, for former Minister Reith, and that it was very much likely to stick in his memory. I wonder if you could reflect on that for a moment. Air Marshal Houston-At the end of my advice, there was a pause, a silence, and then he said, `Well, I think we will have to have a look at releasing the video.' That seemed to me to be a reasonable way to proceed at that stage. I had not actually seen the video, but clearly that was something that was necessary at that stage of the proceedings. Senator FAULKNER-One excuse he used was poor reception. Another one was that it did not stick in his memory. The third excuse that he rolled out at one point in an attempt to deal with the matter was to suggest that you were only the Acting CDF as opposed to CDF. Do you have a reaction to that? As the Acting CDF, is it not your responsibility to have the same relationship with the minister that the CDF would have if the CDF were in the country? Air Marshal Houston-I think the Acting CDF has all the powers of the real CDF. If the real CDF is out of the country and something happens, the Acting CDF has to act in exactly the same way as the CDF would and would provide the necessary advice to government on whatever matter was before him. Senator FAULKNER-You may not be aware of this, but when Admiral Barrie, as CDF, came before this committee I asked him whether he viewed your actions at the time-that is, on 7 November-as utterly appropriate. He indicated that he was absolutely supportive of your actions and believed that they were entirely appropriate and did not warrant a moment's criticism. I do not know whether you are aware that I asked the CDF that question. Air Marshal Houston-I am aware of that. Senator FAULKNER-I suppose that you were grateful that the CDF responded to my question in the way he did. Air Marshal Houston-Yes, I was. CERTAIN MARITIME INCIDENT CMI 1088 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-I suspect you were not that surprised. Air Marshal Houston-No, I was not surprised. Senator FAULKNER-Because you believe your own action was appropriate, don't you? Air Marshal Houston-Absolutely. We had a situation where there was considerable confusion as to what the events of 7 and 8 October were and there was a need for clarification on a number of aspects. I do not resile from anything that I did. Senator FAULKNER-I asked Admiral Barrie about the statement the Prime Minister made in the House of Representatives following Senate estimates testimony from both yourself and Admiral Barrie. I am sure you are aware of the statement-certain military hardware, Exocet missiles and torpedoes come quickly to mind. Are you aware of the statement the Prime Minis- ter made? Air Marshal Houston-I am aware. Senator FAULKNER-Are you aware that, when I asked Admiral Barrie about how he felt about that statement, he responded, `How do you think I felt?' Air Marshal Houston-I was aware of that. Senator FAULKNER-As the other principal in relation to this-as the Acting CDF at the time, and the CDF being the other principal-how did you feel when this matter was raised and about the manner in which it was raised in the House of Representatives by the Prime Minister? Air Marshal Houston-Let me put it this way: I am very fortunate, like all the rest of us, to live in a very robust parliamentary democracy, and what happens in the House is really a matter for government and the opposition. What concerned me a little bit were some of the conclusions that were drawn by the media about that, in that there was a rift between Admiral Barrie and me. Let me assure you that there has never been a rift between Admiral Barrie and me. I think what is important is that we the chiefs get in behind them and get on with the job. We face a very challenging environment out there at the moment. I totally support Admiral Barrie. I think it is very important that the other chiefs do likewise. Senator FAULKNER-But how do you feel when your Senate estimates testimony is ridiculed by the Prime Minister in the House of Representatives in the way it was, given that in very short order we had Admiral Barrie actually changing his view on this? We have canvassed that with Admiral Barrie, and I do not intend to go into that today. Air Marshal Houston-I was very comfortable with my testimony. I do not want to get into matters concerning what happens in the House. Things are said in there, and I just prefer not to comment on them. Senator JACINTA COLLINS-You do not believe the media were unreasonable on drawing the conclusions that they did in relation to the comments, do you? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1089 Air Marshal Houston-I would prefer not to comment on that. CHAIR-We are out of time. Do you have a final question, Senator Faulkner. Senator FAULKNER-I was going to ask the air marshal about the senior leadership group and the lead-up to Admiral Barrie's public statement on this issue and wondered what advice, if any, the air marshal offered to his senior colleagues-including CDF-in the lead-up to the senior leadership group which, in turn, led to the public statement that Admiral Barrie made about his changed view of the `children overboard' issue. Given that we are running short of time, could you briefly outline that to the committee. Air Marshal Houston-Within the senior leadership group there was great concern that the media were reporting that there was a split in the senior leadership of the ADF. There was not a split, but there was a perception out there in the community that there was a split on the basis of the media reporting. We obviously had to address that, and that is what we did. Senator FAULKNER-Air Marshal, given the statements of the Prime Minister in the House and given the public notoriety about this issue, are you concerned personally- particularly given those statements that were made-that this issue and the fact that you had to deal with it as Acting CDF on 7 November 2001 will have any impact, and I am thinking here of a negative impact, on your career? Air Marshal Houston-Thus far there has been no evidence of any impact whatsoever. Frankly, I am quite comfortable with everything that has happened. I do not believe that it will have an impact on my career. I believe my job is to provide frank and fearless advice to the CDF, secretary and, when appropriate, the minister, and I stand by that. I think it is most important that, if there is a situation as there was in this situation where clarification is needed and the facts need to be put on the table, I provide the necessary advice. If I were in the same situation again, I would do it all over again. Senator FAULKNER-I hear that. Are you absolutely satisfied you have acted in an apolitical way and not had a mind to political considerations as you have acted? Air Marshal Houston-I believe my job is to always act in an apolitical way. I think that it is very important that we in the military provide the facts and, if there is a need for-I think someone has referred to it as-`political spin', that that be handled by the political side of the house. It is imperative that we in the ADF do not become involved in the political process. CHAIR-I think we are going to leave it there. Thank you very much, Air Marshal Houston. There are a number of senators-Senator Brett Mason and for all I know Senator Bartlett-and me as chairman that have not had a chance to engage you directly with our questions. I have a number of questions that I will put on notice. I understand that that is the same with Senator Mason and it may be the same for Senator Bartlett. Senator FAULKNER-I have some other questions, too. If you would not mind taking them on notice, I would appreciate that. Air Marshal Houston-I would be very happy to do so. CERTAIN MARITIME INCIDENT CMI 1090 SENATE-Select Wednesday, 17 April 2002 CHAIR-Thank you. Obviously, when we see the answers, we will reserve the right as to whether we should invite you back again. Thank you very much for your attendance this morning. Can I say to the committee that we now have a number of witnesses, each of whom have been allotted 20 minutes. I intend to divide it eight minutes, eight minutes and four minutes. I know that is extraordinarily tight. That is the fault of the timing. Anyone that does not want to take up their full time should feel free to vacate their time. I know of no fairer way of doing it. On that basis, I invite Group Captain Greg Evans to come forward and take the oath or affirmation. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1091 [10.35 a.m.] EVANS, Group Captain Gregory John, Chief of Staff to Chief of Defence Force, Depart- ment of Defence CHAIR-Do you have an opening statement of any sort? Group Capt. Evans-No, sir, I do not. CHAIR-We have not had the normal discussion about who has questions. Senator Bartlett, do you have any questions? Senator BARTLETT-In terms of the role that you have, could you just outline very briefly the nature of your responsibilities, particularly in terms of communication flows with the CDF, whether about specific incidents or the ongoing activity of Operation Relex? Group Capt. Evans-Certainly, Senator. I am Admiral Barrie's chief of staff; perhaps chief staff officer might be a more accurate description of my duties. I run his office. I am responsible for a small group of staff who gather correspondence to the chief, prioritise it for his attention and basically run his in-tray, which is a large task. I take a fair bit of information by informal means, such as from people phoning the office and people coming by and talking to me about events about which they might not feel they need to correspond formally with the chief but which they think his office needs to be aware of. I also play a part in preparing CDF correspondence with the minister's office. Senator BARTLETT-So, when we have had evidence from other witnesses further down the chain of command-Rear Admiral Ritchie, for example-and they say they have passed on information to the CDF, that would oftentimes be through you or your staff rather than personally to the CDF. Group Capt. Evans-In Rear Admiral Ritchie's case, he would normally ring the office and, if it is humanly possible, I would put him straight through to the chief. Senator BARTLETT-Right. Group Capt. Evans-In the case of the service chiefs, that is also true. It would have to be quite an extraordinary circumstance for the Chief of Army, Chief of Air Force or Chief of Navy not to be able to walk straight in and talk to the chief. Normally, those senior commanders would not include me in that conversation. However, on a lot of occasions, they do ring me with information-`Let the chief know this the first chance you get.' We will do exactly that. Senator BARTLETT-In terms of the specific incident that we have been spending a lot of time focusing on, were there any information flows in relation to that `child overboard' allegation and the subsequent inquiries that occurred to establish the facts of that incident? Group Capt. Evans-On 11 October, I was aware of a conversation between Colonel Day, who worked in the office with me-in fact, our desks are joined at the hip-and Brigadier CERTAIN MARITIME INCIDENT CMI 1092 SENATE-Select Wednesday, 17 April 2002 Bornholt. I was busy at the time-I do not recall exactly what I was doing-but Brigadier Bornholt was our military public affairs adviser and was frequently in the office. He had very open access to the chief, and often came by with hot issues type information-much of which often came to not very much, but some of which became important. By my recollection, Colonel Day made me aware that, in addition to information we were starting to get informally that we had a problem with the photographs-and I think that is now not contentious that we were becoming aware at about that time that there was a problem-there were now doubts about whether or not children had been thrown overboard. I discussed that briefly with my staff, Colonel Day and Tracey Jiggins, who is the admiral's public affairs adviser, and then I walked straight in, as I recall, to talk to the admiral about it. It seemed quite important. Brigadier Bornholt had gone by this time, if my memory serves me. I spoke briefly with the admiral. I have no clear recollection of the famous chronology-that is the 1136 zulu message. I think I was aware that Brigadier Bornholt had it. But I was aware that there were now doubts about whether this had in fact happened. I spoke to CDF briefly-he was very busy at the time, and I crammed it in between two appointments. The context was that somebody no doubt enor- mously important was waiting to see him; that is always the case. CDF left me with the very clear impression that he set great store by the phone conversation that he had had: it was right on the spot, it was while it was happening, and he set significant store by that. But he also clearly understood that there were now queries about whether children had in fact been thrown overboard and he was troubled by that. It was my opinion that I was therefore behind him-in other words, I was troubling him with something he was already on top of. He briefly advised me that COMAST-Admiral Ritchie-was rechecking the facts and trying to get to the bottom of it. In the context that we were very busy in the office at the time and he had tasks he was very keen for me to be getting on with, he said words to the effect of: `Get on with what you are do- ing. You do not need to work on this; Admiral Ritchie is.' I went back to my staff, conveyed those three elements to them and we went on with our work. Senator BRANDIS-I just want to make sure I did not misunderstand something Air Marshal Houston said. In his Senate estimates evidence he said that on 7 November he had a conversation with you and Brigadier Bornholt. I understood him to be saying this morning that he wanted to correct that evidence; that he did not have a conversation with you, he only had a conversation with Colonel Day and Brigadier Bornholt. Is that right? Group Capt. Evans-That is correct. Senator BRANDIS-You were not a participant in any transactions or conversations with Air Marshal Houston on 7 November? Group Capt. Evans-I was overseas, in Hawaii, with the chief. The Chief of Air Force's memory was just faulty on who it was. Colonel Day was effectively the bystander in the office, not me. Senator BRANDIS-That is all I wanted to know. Thank you. Senator FAULKNER-Brigadier Bornholt in fact says in his submission to General Powell's inquiry, and this is 11 October last year: CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1093 I immediately brought this signal- I think we know the signal that we are referring to- to the attention of CDFs chief of staff, and provided a copy of the signal. As I heard your answer to an earlier question, I wondered if you were casting a little doubt on that statement by Brigadier Bornholt. Group Capt. Evans-No, I was not trying to. I suspect both of our recollections are probably correct from our two perspectives. I think the brigadier may have had the bulk of his conversation with Steve Day and Tracy Jiggins. I cannot be certain of that; Colonel Day is next and might be able to clarify that. My recollection of how it worked is that there was a fairly animated conversation between the brigadier and Steve Day at one end of my office while I was dealing with something else; subsequently, I was made aware of what they had been talking about; we collectively made a judgment that the chief needed to hear about it and then I walked in to speak to him. Senator FAULKNER-Are you aware of any doubts or concerns raised with CDF by others? Group Capt. Evans-Not specifically. Certainly on that day, the 11th, I inferred from my conversation with the chief that he had had an unpleasant conversation with the minister about the photographs and that he had heard from senior sources-I inferred, again, perhaps COMAST or the Maritime Commander-that, despite the fact that he believed at the time that we had had a clear telephone message to the effect that children had been thrown, it was now in doubt. Senator FAULKNER-So he actually communicated doubts or concerns to you about the issue? Group Capt. Evans-Yes. He certainly did not give me a clear idea of where those doubts had come from, but he was aware, I think. Again, it was a brief conversation; I have to be careful not to read too much into it. It was quite a brief conversation and I was pressed for time, as was he. But that was my impression at the time. Senator FAULKNER-As Chief of Staff for the CDF, do you recall when the statements from the crew of the Adelaide arrived in CDF's office? Group Capt. Evans-Not specifically, but I do not believe that they arrived in the office until the Powell report arrived in the office. Senator FAULKNER-Perhaps you could take that on notice. The CDF, as we know, was proactive in ensuring that those statements were provided. You are aware of that, aren't you? Group Capt. Evans-My recollection is that on the 11th the chief told me that they were being gathered already: `COMAST is looking into it; he is talking to witnesses.' CERTAIN MARITIME INCIDENT CMI 1094 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Anyway, the statements did not come in until the Powell report was commissioned-is that what you are saying? Group Capt. Evans-I think so; I would like to check. If I can take it on notice I will get back to you. Senator FAULKNER-I would appreciate your doing so. If they did come in earlier you might indicate when CDF looked at the statements, how he was made aware that the statements were received, effectively, and whether he saw them. In the couple of minutes we have available to us I want to focus on your role in this. Did you discuss the photographs of the sinking of the SIEV-the ones that were misrepresented in the public arena-with CDF at any stage? Group Capt. Evans-We were, about the 11th, becoming aware in the office that there was a problem with the photographs. The photographs and the issue of whether the events had actually happened came up in that conversation I had with the chief. I said we had a problem with the photographs and perhaps there were doubts about whether it happened at all. That is the first time I raised the issue with the chief, I am sure. Senator FAULKNER-Can you please take on notice whether you discussed the photographs with anyone else on or after 11 October, in the period up until 10 November? If so, who did you speak to and what was discussed? I ask you to take that on notice given the short time. In your role, do you have any contact personally with the minister's office? Group Capt. Evans-The minister's chief of staff and I talk probably a couple of times a week, usually about the flow of time-critical documents. The minister's office is always hurrying them up; we are always rushing to get them there. And, of course, the opposite happens: we are always very keen to see ministerial pen script. So the flow of documents back and forth is the main topic of conversation when we speak. Senator FAULKNER-On `children overboard' or related incidents, did you have any discussions with the minister's office? Group Capt. Evans-Not at any time. I was aware that others had, however. Senator FAULKNER-Who were you aware of? Group Capt. Evans-I have tried to nail down the time but I cannot. I was aware that Ms Jenny McKenry had emailed the minister's office and I have the impression that she emailed Mr Scrafton on that exact issue. I also formed the impression, after Brigadier Bornholt was in the office on that day, the 11th, that he had made fairly strenuous efforts to ensure that that information went in to the minister's staff. Senator FAULKNER-Did you have any contact with the Prime Minister's office, the Prime Minister's staff or the Department of Prime Minister and Cabinet about the `children overboard' issue? Group Capt. Evans-No, none whatsoever. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1095 Senator FAULKNER-I would like to ask some other questions but, given the time-you appreciate that we are on a very tight time frame here, Group Captain-I would appreciate it if you would not mind taking them on notice. Group Capt. Evans-Certainly. CHAIR-Senator Brandis? Senator BRANDIS-I have asked my questions. CHAIR-Any further questions? Senator BRANDIS-Not from me. Senator FAULKNER-I thought we had to wrap up. CHAIR-We do have to wrap up, and we are on time, thank God. Thank you very much, Group Captain Evans. CERTAIN MARITIME INCIDENT CMI 1096 SENATE-Select Wednesday, 17 April 2002 [10.51 a.m.] DAY, Colonel Stephen Julian, Deputy Commandant, Australian Defence Force Academy CHAIR-Do you have any opening comments to make, Colonel Day? Col. Day-No, I do not, Senator. CHAIR-Would you like to open the batting, Senator Faulkner? Senator FAULKNER-I think you were Acting Chief of Staff for CDF, Colonel, over this period that the committee has been focusing on-for some time at least-between 7 October and 10 November. You might provide those dates for the committee. Col. Day-It is a moot point, but I considered that I was Acting Chief of Staff if the Chief of Staff was actually on leave or on course, but, whilst he was with the CDF, I think he was the Chief of Staff regardless of where the CDF was, and I continued in my appointment as the staff officer. Senator FAULKNER-I see. But certainly you have a significant role when Air Marshal Houston is the Acting CDF, at least, because you were the Acting Chief of Staff, were you not, on 7 November? Col. Day-I think it is fair to say I was the senior staff officer in the office on that day. Senator FAULKNER-You do not like my terminology; fair enough. As the senior staff officer, can you quickly outline for the committee what occurred on 7 November when the Acting CDF raised the issue of allegations that children had been thrown overboard or doubts about that with you, and any interface or role that you had on that day? Col. Day-The Acting CDF came into the office and he asked me if we had a copy of the video that related to the SIEV4 incident. I said we did not, but that I thought we would be able to get a copy of one. He said that he thought Admiral Smith in Sydney had a copy and could we organise some link for him to view it. I think I had about 45 minutes to do so. At about the same time, Brigadier Bornholt walked into our office and drew the Acting CDF's attention to the Australian article where the veracity of the claims had been questioned. They then turned and conversed themselves. Noticing that I did not have long to organise the video, I then withdrew from the conversation and tried to organise to get the video. I did not hear the balance of their conversation-and in any event it was not very long, because about a minute or two later they walked out together. Senator FAULKNER-I see. I know that Brigadier Bornholt was present during the conversation that the Acting CDF had with the minister that morning, but were you present during the period of that conversation? Col. Day-No, I was not. I think he made it from his own office and I was not aware either of the phone call or of his advice to the minister until I saw it in Senate estimates in February. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1097 Senator FAULKNER-Fair enough. You are aware of the outcomes of that particular phone conversation. You say you have had an opportunity to hear and read the transcript of the Senate estimates committee, so you are well apprised of that. As senior staff officer at the time, was there any follow-through as a result of the air marshal's conversation with the then minister that you had any responsibility for progressing? Col. Day-No. I was focused on trying to get hold of the video within the time frame. As it turned out, it was not until about midday that I was able to organise it-so, no. What occurred between him, Brigadier Bornholt and the minister's office was a black hole as far as I was concerned. Senator BRANDIS-Colonel, do I understand that you are unaware of what documentary material either Air Marshal Houston or Brigadier Bornholt had access to on the morning of 7 November? Col. Day-I knew that Brigadier Bornholt had access to a signal from HMAS Adelaide. Senator BRANDIS-Is that the document that has been described in evidence as the chronology? Col. Day-That is correct. Senator BRANDIS-Anything else? Col. Day-No, no other documentary evidence. Senator BARTLETT-In terms of the information that would flow through to CDF, how much detail would be provided, on average, in relation to the ongoing activities of Operation Relex? Would it be daily updates and details of interceptions or would it include information about reports of boats leaving and those sorts of things? Col. Day-It was fairly comprehensive. There was a regular written sit rep. If my memory serves me, it was correct as at 8 o'clock in the morning and it arrived about an hour or so after that. He would then be updated throughout the day as necessary by either COMAST from Sydney or Head of Strategic Command here in Canberra. If there was any information that came to pass into the office and to me or to the chief of staff that we thought was relevant, we would pass that through to him as well. Senator BARTLETT-Would that include being notified about reports of boats leaving as well as boats being intercepted? Col. Day-Yes, it would. He would have been informed of both of those sorts of things. Senator BARTLETT-That would not go straight to him first before others? It would normally go to people like Admiral Ritchie and then be fed upwards rather than go straight to him? CERTAIN MARITIME INCIDENT CMI 1098 SENATE-Select Wednesday, 17 April 2002 Col. Day-Not necessarily; it would depend on who had the information and how significant it was at the time. It is quite possible that a departure of another vessel would first come to the attention of, say, Air Vice Marshal Titheridge and he may on occasions phone or personally see the CDF to inform him himself, so it would not necessarily come through the office. Senator BARTLETT-Were any reports provided in relation to the vessel-I cannot remember the date it sank; I think it was about 19 or 20 October-that sank off Indonesia and that had a significant number of drownings? Col. Day-Which vessel are you referring to? Senator BARTLETT-It is the one that sank, before it got intercepted, fairly soon after departing Indonesia and that had some hundreds of people drowning. You are not aware of that? Col. Day-I think I know what you are referring to. If you are asking if we knew the vessel had left and was headed for Australia, I would have to take that on notice. Senator BARTLETT-That would be handy, and if you could look at what types of reports et cetera were provided after it sank and where they came from. CHAIR-As no-one is seeking the call to ask further questions, we thank you, Colonel Day. Proceedings suspended from 11.00 a.m. to 11.22 a.m. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1099 McKENRY, Ms Jennifer, Head, Public Affairs and Corporate Communication, Depart- ment of Defence CHAIR-Welcome, Ms McKenry. Do you have an opening statement? Ms McKenry-No, I do not. CHAIR-In that case we will go straight to questions from the committee. I think I should give the call to you, Senator Faulkner. Senator FAULKNER-Thank you, Mr Chairman. Ms McKenry, you would recall that at the Defence estimates we canvassed a number of matters that are now subject to further examination by this select committee. Reflecting on the evidence that you gave at the estimates committee, is there anything that you felt you might usefully add to the comments you made, in the light of other information that is now in the public arena? Ms McKenry-No, there is nothing specific. I am happy to take questions that you might have on any of that information. Senator FAULKNER-Fair enough. Are you aware of the evidence that was given by the Secretary of the Department of Defence, Dr Hawke, to this committee in relation to you? Ms McKenry-Yes, I am. Senator FAULKNER-Dr Hawke confirmed that on 11 October last year, after a conversation with you about the incorrect portrayal of photographs, he asked you to put in writing to the minister's office advice that the photos had been misrepresented by the minister. I think that is a fair summation of the evidence that Dr Hawke gave. I hope you would agree it is a shorthand version. Ms McKenry-Yes, it is fine. Senator FAULKNER-So you are aware of that? Ms McKenry-Yes, I am aware of that. Senator FAULKNER-Is that what Dr Hawke asked you to do? Ms McKenry-If I can recall the conversation with Dr Hawke, he phoned me the morning of the 11th about the photos specifically that had been released. In the course of that conversation I explained to him that Brigadier Bornholt and I were about to talk to Mike Scrafton in the minister's office to explain to him what the photos portrayed. I also explained to him, in the context of that, that I had an email which quite clearly showed the photographs and that there were captions which told the date on which the photographs had been taken, that I was also requesting from my Director, Media Liaison, a chronology of how the photographs came to be CERTAIN MARITIME INCIDENT CMI 1100 SENATE-Select Wednesday, 17 April 2002 released and that my intention was to talk to Mike Scrafton with Brigadier Bornholt and to forward that material to the minister's office. Senator FAULKNER-So there is a communication that goes to the minister's office-that is true, isn't it? Ms McKenry-That is correct. Senator FAULKNER-But it is not really what Dr Hawke had in mind, is it? Ms McKenry-I have to say, Senator, that in my discussion there was never any indication that what I had explained that I was about to do was not what he was intending that I do. The key thing in that conversation was that the minister's office was acquainted with the fact that the photographs had been taken on the 8th and not the 7th, and certainly my explanation to him was that the email did show that. Senator FAULKNER-I am sorry, your explanation was? It is hard to hear. Ms McKenry-My explanation to him was that the email I had did in fact show that. Senator FAULKNER-Did in fact show that? Ms McKenry-Yes. Senator FAULKNER-You sent a copy of your email to Dr Hawke anyway, didn't you? Ms McKenry-What I sent to Dr Hawke was a copy of the letter I had received from the Director, Media Liaison, which was the chronology of events. I did not send a copy of the email that I had forwarded to Mr Scrafton, which actually had the photographs and the captions, to Dr Hawke, no. Senator FAULKNER-But what happens is that, on the same morning as Dr Hawke raises this issue with you, you have what I think is described in one of the emails as a lengthy conversation with Mr Scrafton? Ms McKenry-That is correct. Senator FAULKNER-Could you tell me what the time of your conversation with Mr Scrafton was? Ms McKenry-I cannot recall the exact time but it would have been some time after 9.30 a.m. and it would have been well and truly over by about 10.30, a quarter to 11. Senator FAULKNER-But it was lengthy, so what do we mean by lengthy? Ms McKenry-It was in several facets. 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 CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1101 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. We then talked about what our limited understanding at that time was of how the photographs had been released. He then phoned off to go and check the photographs, because I had said to him, `There are captions which actually say that the photographs were taken on the 8th.' He rang off, he went to check the photographs and at that stage he came back and said there were no captions to his knowledge in the minister's office. Senator FAULKNER-Did he say who he checked the photographs with? Ms McKenry-No, he did not. Senator FAULKNER-He said that there were no captions in the minister's office. Ms McKenry-To his knowledge there were no captions in the minister's office. We then described the photos to make sure we were talking about the same photos. Senator FAULKNER-Brigadier Bornholt was still with you at this point? Ms McKenry-At this point he was. He then left. I told him that I had an email and that I would send him my email, which quite clearly had the date on it. I also undertook to try to get a copy of the email which I believed was being sent to the minister's office or to Mr Hampton. I believed at the time that it had been sent to Mr Hampton with the captions so I undertook to do that. At that point we terminated the conversation again. Brigadier Bornholt was not in the room. He left. Following that I sent a copy of my email, which was at 11.04. He did acknowledge receipt of that email in the sense that he phoned back because there was information on that email which we raised in conversation afterwards. Senator FAULKNER-And that was the end of the conversations with Mr Scrafton. Ms McKenry-That was it, on that incident, yes. Senator FAULKNER-Dr Hawke's account was that you should immediately contact Michael Scrafton and inform him that the photos were a misrepresentation. I think that is a fair account of what Dr Hawke was saying. Ms McKenry-That is true. Yes. We were keen to get the message across and into the office. Senator FAULKNER-Do you feel that that phone call and those emails that were sent did adequately respond to the direction that you received from Dr Hawke? Ms McKenry-I felt so. I have had no indication otherwise from Dr Hawke. When I related the following day what had occurred I had no indication that what I had done was inappropriate or there was a shortcoming. Certainly, when Brigadier Bornholt was in the room and we were having the discussion with Mr Scrafton, we were left in no doubt that Mr Scrafton understood what we were saying about the photographs. CERTAIN MARITIME INCIDENT CMI 1102 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-So you have no doubt that he clearly understood what you were saying about the misrepresentation of the photos? Ms McKenry-I have no doubt and Brigadier Bornholt, as I say, was in the room. I wanted to make that phone call with someone else in the room. Senator FAULKNER-Yes, but why do you have no doubt, Ms McKenry? Ms McKenry-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 unrestricted system. Senator FAULKNER-Is that all he asked you to do? Ms McKenry-In the course of the conversation he was keen to have a copy of the chronology that I had said I was putting together for my own benefit to show how the photographs had come to be released and that was it. His request was for the chronology of the events leading up to the release of the photographs, and also to make no effort to get them off the restricted system. Senator FAULKNER-But given what Dr Hawke has said to this committee previously about offering his resignation-I think you would be aware of that evidence. That is why I am keen to be absolutely clear about this. He actually asked that your advice to Scrafton be in writing, didn't he? Ms McKenry-In the course of the conversation we had I cannot remember the exact words `in writing'. All I can say to you is that I described to him what information I had and what I had intended to convey to Mr Scrafton in terms of the email and later the chronology. I think it was the next day or could have been later that day-my mind is hazy on the time of that-when I described what had happened. As I say, and I have raised it with him, at no stage did I have an indication that he viewed what I had done as inappropriate. Senator FAULKNER-You do not deny that Dr Hawke asked you to provide advice to Mr Scrafton in writing about the misrepresentation of the photos? Ms McKenry-I cannot recall the words `in writing' used. I can recall that he asked me to convey to Mr Scrafton information about the misrepresentation of photographs. I had described to him that I had an email and what that email showed. I proposed to send that email across after discussion. Senator FAULKNER-Did in any sense Mr Scrafton ask you to take a different course of action than you had intended to take or Dr Hawke might have intended you to take? In other words, were you asked by Mr Scrafton to take a different approach? Ms McKenry-No. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1103 Senator FAULKNER-Did you communicate to Mr Scrafton that you had been requested to progress this issue by the departmental secretary? Ms McKenry-I do not recall having mentioned that in the conversation. Senator FAULKNER-Dr Hawke had asked you to do this. Would Mr Scrafton be aware of that? He would not have been aware that there had been earlier communication between you and Dr Hawke? Ms McKenry-I think it is most unlikely. I cannot recall raising it in the conversation. Senator FAULKNER-Certainly if it was to be raised I expect it would be raised by you. One of the witness statements that we have available to us is that of Ms Jiggins. That is a submission to the Powell report. I do not know whether you have seen it or not. Ms McKenry-I have not seen her witness statement. I am aware of Tracey Jiggins. I know Tracey Jiggins. Senator FAULKNER-Can I read an element of that statement to you and ask you to comment on it please. It is paragraph 12 of that statement. Ms Jiggins says: Sometime in the few days after the photographs had been released, I received another email from John Clarke asking that I delete the photographs from my system and to ask anyone that I may have forwarded them to, to also delete them. I also received a telephone call from Ms Jenny McKenry's PA asking me to delete the photographs. Going behind that a little, did you ask your PA to make that phone call or general request? Ms McKenry-I must have. I do not recall having done that. She would be accurate in saying that that happened. When I became aware on the morning of the 11th that the photographs were on the restricted system I was concerned that there were a lot of copies of them around. My concern was that the information may be released before the minister or his office had an opportunity to correct the date. That was certainly what was behind that request. Senator FAULKNER-But why does it go from your PA to Ms Jiggins? First, does it go at your request? Ms McKenry-I cannot recall making the request. Senator FAULKNER-I assume your PA would not do this without your authorisation? Ms McKenry-That is a correct assumption, I would think. I was quite busy that morning. I did ask Mr Clarke to inform people. The one person that he had mentioned specifically was Ms Jiggins. It could well have been but I do not recall having asked my PA to make a call, amongst doing other things. Senator FAULKNER-Do you know whether your PA rang others, as well, or was it just Ms Jiggins? CERTAIN MARITIME INCIDENT CMI 1104 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-No, I do not, because I do not recall actually having made that request. Senator FAULKNER-I want to try to find out why the request was made to delete. Ms McKenry-Quite simply, as I said, the request was made by me to the people I knew had them-and to the people Mr Clarke had sent them to- to delete them simply because I was concerned that the date might become public before the minister's office had a chance to make the correction. That was simply it. Senator FAULKNER-Were you asked by anyone to take that course of action? Ms McKenry-No, I was not. As I mentioned earlier, a subsequent discussion with Mr Hampton suggested that I not worry about the fact that the photographs were on the restricted system. I did not pursue it any further. Senator FAULKNER-You are saying that you wanted these photographs to be deleted so that there would be no inadvertent leak before the minister's office corrected the record. In a nutshell, is that what you are saying to me? Ms McKenry-I believed the minister's office should have the opportunity to make the correction, yes. Senator FAULKNER-What date was this? Ms McKenry-This was on the 11th, so we are still talking about the morning. Senator FAULKNER-Yes, it was 11 October. Ms McKenry-That is correct, yes. Senator FAULKNER-So how did you react in the days, weeks, months that went by without any correction? You asked for this deletion to occur so the minister's office could correct the record but the minister's office did not correct the record, did it? Ms McKenry-No, it did not. Senator FAULKNER-It did not that day, the next day, the next week, the next month or at any stage. Ms McKenry-That is correct; it did not happen. Senator FAULKNER-What did you do as a result of that not happening? Ms McKenry-We had this discussion at the estimates hearings, when you asked a similar question. My response then, and it is still the same, was that I did not think it was appropriate for us to enter that debate. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1105 Senator FAULKNER-After they are released, what difference does it make if they are on a restricted or an unrestricted system, anyway? Ms McKenry-It is easier to circulate material within the organisation and outside the organisation from the restricted system. Senator FAULKNER-But the photos you were requesting be deleted from the computer system are actually out there in the public arena, aren't they? Ms McKenry-Yes, that is right. Senator FAULKNER-So you made this request a couple of days after they had been released by the minister? Ms McKenry-No, I made the request the morning after they had been released by the minister. They were released on the 10th, the discussions with Mr Scrafton were on the morning of the 11th and this was on the 11th. I did not pursue the matter at all after the conversation with Mr Scrafton which, again, was on the morning of the 11th. Senator FAULKNER-If they are released, what is the difference between Defence's restricted and unrestricted system? Ms McKenry-I do not quite understand. Senator FAULKNER-They are out there; they are released. Does it make any difference if they are on the restricted or unrestricted system? That is the reason you say that this is occurring. Ms McKenry-What I have explained is that, when they are on the restricted system, it is easier for them to be circulated and go outside the organisation. They were released certainly in the public but they were not released with captions showing the date. Senator FAULKNER-The captions exist with the photographs on Defence's system, don't they? Ms McKenry-That is correct; they do. Senator FAULKNER-Can you say to this committee that the instructions that you issued were not to cover the fact that the captions existed with the photographs on the Defence computer system? Can I be assured of that? Ms McKenry-The only intent, as I have explained, in asking that they be limited in circu- lation at the time on the restricted system was to give the minister's office the opportunity to make the clarification. Senator FAULKNER-I take at face value that that was the intent but the impact of it was significant, wasn't it? CERTAIN MARITIME INCIDENT CMI 1106 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-I doubt whether the impact in fact was significant. The only people I was discussing taking it off the restricted system with were staff within PACC, no-one else. I was concerned that my own staff did not circulate it. As has become evident, the photographs were around the organisation more widely than I was aware of at the time. Senator FAULKNER-But surely, in requesting the deletion of the photographs, a reasonable person could come to the conclusion that that was done so as to remove potentially a very embarrassing situation for the government, and to allow this misrepresentation and deception to continue with the Australian public at a very sensitive time during an election campaign. Wasn't that the real motivation? Ms McKenry-Certainly my motivation, as I have explained, was to give the minister's office the opportunity to clarify the date of the photographs. My request in no way resulted in the photographs coming off the Defence restricted system in total. Senator FAULKNER-You took a course of action to allow the minister's office to correct the public record in the first instance. That correction never happens, does it? Ms McKenry-No. It does not happen. Senator FAULKNER-You know, Ms McKenry, that there is a misrepresentation on these photographs right through for a month in the period of a federal election campaign, don't you? You know that is the case and you know it is not corrected. You had expected it to be corrected early in October and that is why you took certain administrative action. You expected the minister to correct the public record but he did not? Ms McKenry-That is correct. I took action to make sure that the minister's office was aware of the information. Senator FAULKNER-And what did you do when no correction was made? Ms McKenry-I continued my work within the organisation as a public servant. I did not see it as appropriate, as I explained earlier in the estimates process, to enter the debate at all. I believed that what I had done and what some of my colleagues had done had been appropriate. We had informed the minister's office of the date on which the photographs were taken. We had informed them that the photographs as they were did not represent what they were purported to represent. I had informed certainly my head of department of that information and I did not believe, having done all of that, that it was appropriate for me to enter the debate in any other way. Senator FAULKNER-This is when the caretaker provisions applied so what did you do when the minister's office did not correct the public record? I think I know the answer, Ms McKenry. You did nothing. You did not raise it with the minister's office again, did you? Ms McKenry-I do not believe I did. Senator FAULKNER-You did not raise it with Dr Hawke or any of your departmental superiors? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1107 Ms McKenry-It had been raised with Dr Hawke. Senator FAULKNER-Previously. But you take a course of action that is dependent on giving a minister an opportunity to correct the public record. That is right, isn't it? Ms McKenry-That is correct, yes. Senator FAULKNER-The public record is not corrected by the minister, is it? Ms McKenry-No, it is not. Senator FAULKNER-Were you surprised by that? Ms McKenry-I expected a correction to come out. Senator FAULKNER-You expected it, but it did not happen. Ms McKenry-That is correct. Senator FAULKNER-When it did not happen, did you raise that fact with your superiors? Ms McKenry-I think there was conversation that it had not occurred, yes. Senator FAULKNER-Who was that conversation with? Ms McKenry-It was raised, certainly, with Dr Hawke, but in passing. But there was discussion- Senator FAULKNER-When did you raise it with Dr Hawke again in passing? Ms McKenry-I cannot recall. It would have been between that particular date and when the election took place. Senator FAULKNER-Are you sure you raised it with him in passing? Ms McKenry-I have a recollection of raising it with him in passing. It was not a monu- mental event. Senator FAULKNER-Can you tell me when that occurred? Ms McKenry-I cannot, Senator, no. Senator FAULKNER-Can you tell me where it occurred? Ms McKenry-It would have occurred within the department. It would have occurred during the course of a discussion. CERTAIN MARITIME INCIDENT CMI 1108 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-But you did not put pen to paper on it or anything like that? Ms McKenry-No, Senator, I did not. I go back to the comments I made during the estimates. I did not see it as appropriate for me or for anyone else to enter the debate as a public servant. My belief was that, as public servants, we had done what was required and the information was there for action to be taken. Senator FAULKNER-The fact that you did nothing may turn out to be a very convenient let-out for the government. Do you understand why someone could come to that conclusion? Ms McKenry-I do not believe I should comment on that, Senator. Senator FAULKNER-You would not want anyone to come to the conclusion that you personally acted in a partisan way during the election campaign, would you? Ms McKenry-I do not believe I acted in a partisan way in any way. I believe I acted as was appropriate for a public servant. Senator FAULKNER-We go back to the situation where the matter is not corrected by the minister, and then nothing happens. This gross misrepresentation remains in the public arena right through a very sensitive period-that is, during the conduct of a federal election campaign. Senator FERGUSON-But it wasn't an issue for three weeks, was it, Senator? Senator FAULKNER-It was enough of an issue, as you are aware, for Ms McKenry to await a public correction by the minister and the minister's office, which was not forthcoming. Senator FERGUSON-But she had given her information to the minister. It was up to him; it was not up to her. Senator FAULKNER-You believed that the minister should have corrected it, didn't you, Ms McKenry? Ms McKenry-My personal belief was that there should have been a correction, yes. Senator FAULKNER-It should have been on or around 11 October, shouldn't it? Ms McKenry-It should have been, once the information had been presented. Senator FAULKNER-And the information was presented in clear and categorical terms at least by 11 October, wasn't it? Ms McKenry-The information certainly was with the minister's office before midday on 11 October. Senator FAULKNER-But nothing happened. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1109 Ms McKenry-No, nothing happened. Senator FAULKNER-Nothing happened, no, and that misrepresentation ran for another month right through to polling day. My question to you, Ms McKenry, is: what personal responsibility do you accept for that? I am aware that, at the end of the day, the buck stops elsewhere, but do you accept some responsibility, given the failure of the minister and the minister's office to act, not to follow it through? Ms McKenry-No, I do not, Senator. I think a responsibility was placed with me and my close colleagues, which was acted on-and acted on very speedily-to make sure that the correct information was within the minister's office. That was done, and I believe that was appropriate. Having passed that information on, as I have mentioned before in this place and earlier in February, I did not see it as appropriate for me to take any further action. Senator FERGUSON-So you consider your job is completed once you have passed on the information. What is then done with that information is then somebody else's responsibility. Ms McKenry-That is correct, Senator. As a public servant, I see that as as my job. Senator FERGUSON-And you do not see it as your responsibility to reiterate information? Once you have passed the information on, and you are sure that it has been received by the next person or the person that is supposed to receive it, that is your responsibility completed and it then becomes somebody else's responsibility to act on that information. Ms McKenry-That is correct. That I believe is the role of a public servant. Senator FAULKNER-What happens when they do not do it? You say that you gave the minister and his office an opportunity to correct the public record. What happens when they do not do it? You have said yourself that it should have been done sometime after noon on 11 October and that your actions gave the minister's office an opportunity to do that, but it did not happen. Does that mean you just absolve yourself of all responsibility? Ms McKenry-I do not take on the responsibility. As I said, I believe that I acted the way I should have acted as a public servant. We were in the middle of an election campaign, as has been noted. I did not believe that it was my role or the role of anyone else to enter the public debate on the matter, the information having been provided to the minister's office. Brigadier Bornholt and I were left in no doubt, as I conveyed also to the secretary to the department, that the senior adviser understood quite clearly what those photographs represented. Senator FAULKNER-Did anyone give you an instruction to get rid of those photos from the Defence computer system? Ms McKenry-No, no-one. Senator FAULKNER-Can you assure me that that course of action was not an attempt to doctor the PACC computer record? CERTAIN MARITIME INCIDENT CMI 1110 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-No, because our base library still held the photographs. Senator FAULKNER-What is the base library? Ms McKenry-Our digital library within public affairs held those two photographs. If you are asking, by asking people within PACC to delete the photographs, was that an attempt to clear the files, then the answer is no because the photographs were in the repository within Public Affairs and Corporate Communication, and I believe they are still there. Senator FAULKNER-So really what you are saying to us is that, at the end of day, you are satisfied you provided the information to the minister and the minister's office and it is up to the minister to act? Ms McKenry-That is what I am saying. Senator FAULKNER-In this case, the minister and the minister's office did not act, did they? Ms McKenry-No, there was no detraction. Senator MASON-I want to ask a question on that issue. At that time were there other SIEV incidents that you had been made aware of? Ms McKenry-Were there any other SIEV incidents? Senator MASON-Yes, around 11 October? Ms McKenry-No, not at that time. Senator MASON-You said before you were engaged- Ms McKenry-Sorry, was I aware of other boats or other ships? Senator MASON-Yes. Ms McKenry-I had been aware since August that there were arrivals, yes certainly. Senator MASON-There was an election campaign and you were very busy? Ms McKenry-Yes, but not because of the election campaign. Certainly we were busy on a number of fronts. Certainly there were actions happening around the SIEVs. At the time we were also in the throes of deployments or preparing to deploy to the Middle East. There were welcomes and farewells. I think that there was also a church service being organised in the course of that time. There were a lot of things happening, yes. Senator MASON-There were a lot of things happening and it was not a top order priority to correct the minister's office misperception? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1111 Ms McKenry-I believed the correction had been made. Senator MASON-You had done what you could do? Ms McKenry-That was my belief, yes. Senator MASON-Thank you. Senator FAULKNER-Can I go to go to the broader background to this, Ms McKenry? I want to go back prior to the incident that we have just been canvassing-prior to the alleged children overboard incident. Is it true that a system had been instigated within the Defence PACC-Public Affairs and Corporate Communication division-that made it a requirement that all media releases had to be physically signed off by a Canberra based officer of one-star rank? Ms McKenry-The content did, yes. The content had to be approved by a one-star officer and the actual release was signed off by me or one of my colleagues within PACC before it went. Senator FAULKNER-Did that officer have to be from the parent service, if you like, to which the release related? Ms McKenry-It had to be someone who was aware of the contents and the facts contained within the release. For example, you might have had a release which was coming out of an area where the people who had the actual facts and were working on it may have been in different coloured uniforms or in purple jobs. Senator FAULKNER-In the Powell report, there is a footnote that describes this system. It is a footnote to page 8 of 10 about the requirement for all media releases to be physically signed, and signed off by, a Canberra based officer of brigadier rank from the parent service to which the release related. It says: Although initially seen as tedious, this procedure served to improve the quality of Defence media releases and estab- lished a clearly defined chain of command between PACC and the three Services in terms of the communication and re- lease of public information. That is contained in a footnote to Major General Powell's report. Do you think that last comment about it being `tedious' but having some other advantages is a fair comment? Ms McKenry-I do not know whether I would call it `tedious'. What might be seen as tedious is, I believe, just normal quality control. It did not just pertain to the services; it was all media releases which were prepared within the Department of Defence. Senator FAULKNER-Yes; he stresses that-he highlights `all'. Ms McKenry-All media releases. It was a one-star or one-star equivalent-so band one. What it did was give us some confidence that the content of the information and the facts that were in the media release were accurate. So in fact it did improve the quality. It was seen as restrictive in areas, I will confess, where there were not many one-stars to go around. CERTAIN MARITIME INCIDENT CMI 1112 SENATE-Select Wednesday, 17 April 2002 Subsequently there has been, as I think has been before this committee and I think Dr Hawke talked about, a release of a new directive which makes it a bit more flexible. But content still has to be signed off by the area that knows the content. Senator FAULKNER-So that system that we have just been talking about predates the `children overboard' incident? Ms McKenry-Yes; that directive came out in August of last year. What is being referred to there is the DI(G)81 `Public comment and dissemination of information by Defence members'. Senator FAULKNER-Did that process or procedure change at all in relation to communications involving Operation Relex? Ms McKenry-In terms of Operation Relex, we did not issue media releases or visuals. No; that directive stood until-I think, but I would have to check the date-about 25 March this year, when the new one was issued. Senator FAULKNER-So in theory it is still overarching guidance. It didn't not apply. Is that the best way of describing it? Ms McKenry-Yes, it was there in the background. And it was a directive that was live until it was superseded. Senator FAULKNER-In relation to the events of 7 to 10 October, was there any breach of that background directive? Ms McKenry-In terms of media releases and release of material to the media, that directive was supplemented by a specific public affairs plan for Relex, which I think you are privy to. In that plan it made it very clear that release of information or any visuals would happen by the minister's office so that, as a department, we were not in a position to release any information during the course of Relex. Senator FAULKNER-Sure. But it is supplemented as opposed to supplanted, I suppose. That is what I am trying to understand. Ms McKenry-Yes, with the PA plans, one cascaded off the other. Senator FAULKNER-Fair enough. What responsibility, if any, does your division, PACC, have in developing and implementing Defence-wide communications strategy? Let us go to some broad background here so we can understand this. Ms McKenry-Part of its charter is responsibility for the development of an overarching strategy for the whole of the organisation and for strategies for specific large-scale operational matters, basically. So it rests with us. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1113 Senator FAULKNER-In a mountain of paper I read-and I am going to be very frank with you, Ms McKenry, I cannot remember what the document was-I think I read about a Defence communications and organisations strategy. I took a little pen note to that effect. Ms McKenry-You should have read the document, Senator. Senator FAULKNER-Maybe I have; I do not know. I do not think I have seen the document. Is there such a document? Ms McKenry-There is such a document. Senator FAULKNER-I was not aware of it and I certainly have not read it. Was that developed in PACC? Ms McKenry-Yes, it was developed in PACC. In fact, it was developed in Brian Humphreys' area-one of my colleagues, who I think is sitting behind me-and in consultation with people within the organisation. Senator FAULKNER-Perhaps you could provide a copy of that document for us. Ms McKenry-Yes, we could. We would be happy to provide it. Senator FAULKNER-It may have been provided. I can seek some advice from the committee. Ms McKenry-I would not think so. It does not relate specifically to this activity. Senator FAULKNER-Okay, I see. When was that developed? Ms McKenry-That was developed over the last year and released last year, but I would have to seek advice from my colleague, who is not here, as to when it was released but it was last year. Senator FAULKNER-That was Mr Humphreys, did you say? Ms McKenry-Yes. I think it was about May. Senator FAULKNER-Do not worry about that. I will ask him the date because he is appearing at a later stage. What is it actually called? Ms McKenry-It is called the Defence organisation communication strategy. Senator FAULKNER-Anyway, it is a reasonably recent document developed in the last couple of years. Ms McKenry-Certainly. It was one of the things that the organisation was set up to prepare and implement- CERTAIN MARITIME INCIDENT CMI 1114 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-The PACC was set up to prepare it? Ms McKenry-That is correct. Senator FAULKNER-So it is quite fundamental to PACC's charter, if you like? Ms McKenry-It is fundamental not only to PACC but to the organisation and how it goes about engaging the support of the community. Senator FAULKNER-What is the broad thrust of that strategy? Ms McKenry-The broad thrust of the strategy is to give Defence an opportunity to explain to the community what it does and to gain support for what it does, in terms of explaining its operations. It has a role in presenting Defence as an option, as a place for people to have a career. It has an internal communication function and part of its arm explains the white paper to the community. Senator FAULKNER-Fair enough. I think I understand. Does it also go to the level of the relationship between Defence and the Australian public? Ms McKenry-It talks about engaging the Australian community-yes, certainly-and stakeholders. Senator FAULKNER-And does it talk about the role of the media in that? Ms McKenry-It talks about the media as one way to do that-certainly. Senator FAULKNER-What about government? How does government interplay with this? Ms McKenry-It talks about the role of explaining government policy-namely, the white paper-and I think there is a line there about wanting to improve our relationship and communication with government, but that is about it. Senator FAULKNER-So we have the overarching advice or-I forget how you described it-the advice that was spoken about in the Powell report. Does that have a name? This is the one-star signing off process. Does that process have a name? Ms McKenry-It is just a clearance process. Senator FAULKNER-So we have the clearance process and we have the more overarching strategy, if you like, that we are talking about now: the Defence organisation communication strategy. Does that strategy provide clarity about the role of your division-PACC-when you have an operation like Relex in prospect? Ms McKenry-It is not that specific. It is a broad, overarching strategy which talks about how we engage the community in the elements that I have mentioned before. It then goes through each division of the organisation, what each division will do under those parameters CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1115 and the assistance that will be sought from PACC. Basically, it is us working with other areas in Defence at the broad level. It does not specify operational procedures. Senator FAULKNER-So it is broad guidance as opposed to specific guidance. Is that a fair way of summing it up? Ms McKenry-That would be fair. It is a high-level document. Senator FAULKNER-Yes, but it is prepared in PACC. Ms McKenry-It is prepared in PACC, it is maintained in PACC and it is revised through PACC. We are going through an exercise at the moment of confirming what is in there to see whether that is appropriate. Senator FAULKNER-Fair enough. What about PACC's role in the development and issue of Defence Instructions (General) 08-1 on 8 August 2001? Did PACC have a role in that? Ms McKenry-PACC certainly had a role in drafting that directive. We were nominated as the sponsor area. That is correct. Senator FAULKNER-I know the answer to this question, but I think it might be useful for you to explain, in layman's language, what Defence Instructions (General) actually means-just a very brief outline for the committee. What is the impact of that Defence Instruction (General)? Ms McKenry-It no longer exists, as we know. Senator FAULKNER-You are right; I should have used the past tense. What was the gen- eral impact of that Defence Instruction (General)? Ms McKenry-The impact, as it was, was to try and make sure that there was consistency of information that was provided to the public and that the information that was provided was quality information. So there were clearance processes there. It was also done in an environment where there were a number of leaks outside the department. One of the concerns that was inherent in that was an attempt to stop the number of leaks that were happening and to give guidance to people on what their responsibilities were in communicating Defence information to the public. There was another basis which was clearly there, which was no surprises for the minister's office. Senator FAULKNER-No what? Ms McKenry-No surprises. Senator FAULKNER-Would it be fair to say that it gave an enhanced role for the minister's office? Ms McKenry-That directive? CERTAIN MARITIME INCIDENT CMI 1116 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Yes. Ms McKenry-I do not believe that it did. The minister's office was seeing media releases et cetera. I suppose it formalised the interaction between the department and the minister's office more so and probably meant that more information went to the minister's office than previously did so simply because there was information that was issued outside the correct channels. Senator FAULKNER-As I understand it, that Defence Instruction (General) replaced a previous instruction that had been in place since about mid-1999. I am depending on your corporate memory here, Ms McKenry, but I think it is valuable background for the committee. Ms McKenry-There was one. I do not know what the date of that was. Again, I think Mr Humphreys is probably more across the date of that one. Yes, there was one in existence. The major concern with that document and the need for its revision was that it did not reflect the new organisation-that is, PACC-and the centralised and coordinated approach that had been taken in Defence. A major concern, which led to the rewrite, was that, in terms of giving guidance to people about their responsibilities, it was quite flexible, open and made it very difficult when you were dealing with situations of leaks in the department to have this document to fall back against. Senator FAULKNER-What were the key changes you could identify for the committee from the 1999 document to the August 2001 document? Ms McKenry-I would have to take that on notice. I am not as across that document as I need to be. It was before I arrived in Defence. Senator FAULKNER-By all means take it on notice, and thank you for that. But isn't it true that the 2001 instructions were more restrictive than what had previously been the case? It is fair to say that, isn't it? Ms McKenry-They were a lot more coordinated than had been previously the case. There was a lot more guidance given to people than had been previously the case, that is true, and there were more refined clearance processes that were reflected in the 2001 document than was the case before. Senator FAULKNER-What were those clearance processes? Ms McKenry-Those clearance processes were that the content of media releases and material that were going out had to be cleared by a one-star or equivalent officer. Senator FAULKNER-Who requested the instructions be changed or revised? Ms McKenry-I think it was a combination of factors. It was, to be honest, frustration within the department about information not being released in a coordinated fashion, inappropriate information being released and the fact there was no guidance there. My experience was that the rewrite of was generated internally. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1117 Senator FAULKNER-Only internally? Ms McKenry-Yes, only internally. It is a directive by the secretary and the CDF. I remember discussion about it and about the need for it to be redrafted. This is going back some time. Senator FAULKNER-So this direction comes from CDF and the secretary of the department to you? Ms McKenry-That is right. And there was also a discussion before the redrafting with our security people. There was a long discussion. They had in fact initiated some concerns and had raised those as well with the secretary and CDF. From their point of view, they felt that they did not have a document that gave them the ability to give guidance to people about what could or could not go outside the organisation. They believed they did not have that framework. Senator FAULKNER-So what was the minister's and his office's role in these changes? Ms McKenry-The minister's office actually got to view the document and cleared the final draft of the document. The document was drafted with input from people, but the final document was signed by CDF and the secretary, after it was viewed by the minister's office. Senator FAULKNER-What you are saying is a draft goes to the minister's office before it is signed off by CDF. Is that right? Ms McKenry-And the secretary. It carries both signatures. Senator FAULKNER-Is that the normal process for Defence Instructions (General)? Ms McKenry-I am not sure what the normal procedure for Defence Instructions (General) is. I have only been involved with this one and its redraft. You would have to ask the relevant people. Senator FAULKNER-When you say `this one and its redraft', do you mean this specific Instruction (General) or the redraft of the standing Instructions (General)? Ms McKenry-No, I am talking about the one on public comment and dissemination of information by Defence members-so the August version, which we are talking about now, and the version of March this year. Senator FAULKNER-The two most recent iterations of it? Ms McKenry-That is correct, yes. CHAIR-Was it cleared by Minister Reith? Ms McKenry-I would not think so. CERTAIN MARITIME INCIDENT CMI 1118 SENATE-Select Wednesday, 17 April 2002 CHAIR-He cleared it, didn't he? Ms McKenry-His office viewed, certainly last year, the version that was issued in August, but the way they are is that there are different sponsor areas in the organisation for these DI(G)s, and they are all signed off- Senator FAULKNER-Did the new minister follow the same process for the new Instruction (General)? Ms McKenry-This one was actually signed off by the secretary of CDF. I know there was discussion with the minister's office that it was going to happen, but I have no recollection of it going there for approval. I may be wrong. Senator FAULKNER-So it was a different approach that was taken for August last year's Defence Instruction (General). That went for clearance to the minister's office, the most recent one. When was it? Was it March? Ms McKenry-It was March. I cannot recall the day. It certainly went to the minister's office. Senator FAULKNER-But not for clearance? Ms McKenry-I would have to check that. Senator FAULKNER-When the one in August went to Minister Reith's office, were any changes made as a result of that clearance process? Ms McKenry-There was some finetuning made. I was not intimately involved with the final clearance process. That was handled by the secretary simply because the secretary, I think, was travelling with the minister, or was in a situation where he would be with the minister and staff interstate. Senator FAULKNER-Does your division know what the finetuning was? Ms McKenry-I think the finetuning was very much in the opening. It was along the lines of the minister's desire not to have any surprises. Senator FAULKNER-Is there any way we can get some detail on that finetuning over the luncheon break? Ms McKenry-We can certainly have a look. I do not know whether I could get it for you over the luncheon break. I do not actually think that we have those files. We do not have those files. Senator FAULKNER-In relation to the development of the Defence Instructions (General) of August last year, does PACC have a view about the appropriateness or otherwise of the changes being made? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1119 Ms McKenry-We certainly wanted to have a situation where we had clearance of the content that we were issuing and making sure that that was in fact accurate. So we did want high level sign-off on the content of media releases or issues that were going out. We certainly wanted, I suppose, to have a process which would ensure that messages that went to the public were coordinated in a particular way. Senator FAULKNER-So you thought they were positive changes? Ms McKenry-We thought they were positive. We certainly recognised that at the grassroots level they were very much a change of culture, that they were quite different, and that people may have felt a bit of-I will use the word-disempowerment. However, there were opportunities there still for people at the grassroots level to do what they had always done. It was just a matter of informing up the chain. Senator FAULKNER-But were there changes that PACC did not view as positive? Ms McKenry-I do not think so, no. Senator FAULKNER-There weren't any? Okay. The change of culture that you speak about was a change that, in the view of the PACC division, was appropriate-a good change of culture, a positive change of culture? Ms McKenry-Certainly we viewed as quite positive the more disciplined-to use a word- approach in terms of making sure that we had information going out that was accurate and of making sure that we did not have one person saying one thing at one end of the country and someone else potentially saying another thing at another end of the country. We also viewed as positive the fact that we actually had an overarching strategy which gave guidance and that there was now guidance for communicating and engaging the community. Senator FAULKNER-The overarching strategy being the- Ms McKenry-The Defence overarching strategy. Senator FAULKNER-The one we talked about previously? Ms McKenry-The issue here is that certainly the document released in August was a lot more prescriptive than the former document. As I mentioned to you, there was intent in that from a security point of view in terms of information-and certainly there were cultural issues with it in people coming to terms with and understanding that. But we discussed with people that there was still a lot of flexibility there and they-the people who did engage us-were able to do lots of things. We did take that document, and Mr Humphreys can talk to you at length about that, around the country after it was there and asked people what they felt about it and whether there were changes that we should or should not make. That information was harnessed and is reflected in the March document that you have now. Senator FAULKNER-Yes. CERTAIN MARITIME INCIDENT CMI 1120 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-I have to say that the main area where people felt some concern was at the local level and with the clearance processes where they do not have a one-star officer. Senator FAULKNER-What I am interested in understanding is how these revised instructions affect what happened with the SIEV4 incident. I do not know what time the chairman wants to break. CHAIR-About now actually. Senator FAULKNER-So I might come back after the break and ask you about that and for more detail about these changes. CHAIR-I think it is your unhappy fate, Ms McKenry, to be held over now and return after lunch. Proceedings suspended from 12.30 p.m. to 1.19 p.m. CHAIR-When the proceedings were suspended for lunch, Senator Faulkner had the call and he has it back again. Ms McKenry-I want to clarify a date regarding the current DI(G), the March DI(G). It was 22 March, not 25 March as I mentioned. Regarding it going to the Minister for Defence's office, yes it did go for information and it came back without amendment. Senator FAULKNER-But it did not go for clearance? Ms McKenry-It went for information. Senator FAULKNER-Yes, and the August 2001 one went to Minister Reith's office for clearance. Ms McKenry-It was discussed between the secretary of the department and the staff. I am not quite sure what the context of that was but we are chasing that at the moment. Senator FAULKNER-Thank you for doing that. I take you to the 8 August 2001 Defence Instructions (General). I do not know if you have got a copy of it there or not, Ms McKenry- have you? Ms McKenry-No, I do not. Senator FAULKNER-Can I just read one paragraph of it to you. Paragraph 5, under the heading `Public comment and dissemination of information by Defence members: Introduction', states: 5. Within this context, the Government retains the right to have the final say in the release of information on Defence issues to the public and the media. Was that a new paragraph, if you compare it to the earlier 1999 iteration of the Defence Instructions (General)? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1121 Ms McKenry-I would have to check that. My feeling would be that it was, but I would have to categorically check that. Senator FAULKNER-Isn't it true that, in relation to the government's retaining the right to have the final say, this relates not only to policy but also to operational matters? Ms McKenry-I am not aware- Senator FAULKNER-It is everything, isn't it? Ms McKenry-It certainly was the case with the public information that that was so. I cannot speak more broadly- Senator FAULKNER-It relates to all public comment on not only policy matters but operational matters as well. Ms McKenry-Specific to public affairs matters and public communication matters that are linked to operational issues, yes-as that document says. Senator FAULKNER-And that had traditionally been the preserve of Defence personnel, hadn't it? I am talking about operational matters. Ms McKenry-I could not categorically say whether that had been totally the preserve. I am not sure. Senator FAULKNER-That was certainly the general practice. Ms McKenry-It was certainly the practice that people were able to talk about operational matters, and certainly the DI(G) as it stood did not stop personnel talking about operational matters in all circumstances. Senator FAULKNER-Are you aware that in his opening statement to this committee on Friday, 12 April-Friday of last week-Admiral Barrie said: Turning now to public affairs: in Senate estimates I was asked about the importance of correcting the public record in this situation and whether Defence had failed in its attempts to do so. I can confirm to you that, by direction emanating from the former minister's office, no member of the ADF- no member of the ADF- myself included, could make any public comment on Operation Relex, of which SIEV4 was a part. Was the CDF right in his statement? Ms McKenry-Certainly in Operation Relex, yes, that is true. Senator FAULKNER-In relation to Operation Relex it is certainly true. Admiral Barrie goes on to say: CERTAIN MARITIME INCIDENT CMI 1122 SENATE-Select Wednesday, 17 April 2002 There have also been many concerns about the prescriptive and restrictive nature of the defence instruction DI(G) admin 08-1, which relates to public comment by military personnel. You would have been aware of those concerns, which were reflected very widely in Defence- not just the CDF, is it? Ms McKenry-No, I would be aware. I think I mentioned before the lunch break that in taking the DI(G), or the instruction, around to people and explaining to them after it was issued certainly there were concerns expressed to us about the DI(G) and some issues of it, and subsequently they were picked up in the redraft that we have at the moment. Senator FAULKNER-Rear Admiral Smith in fact said to this committee on page 667 of Hansard: It restricted- and we are talking about the same Defence instruction- significantly those that were authorised spokesmen, indeed. We needed authorisation from the minister's office to be able to speak about those things. Would you, from your knowledge, accept that that is a pretty fair representation of the position? Ms McKenry-That is certainly correct. I think we discussed earlier that there was a paragraph in the public affairs plan that was issued for Operation Relex which was quite specific on those matters. Senator FAULKNER-What it actually meant in relation to operational issues, or in relation to what actually occurred with suspected illegal entry vessel 4, was that Defence's capacity to correct the public record was limited, wasn't it? Ms McKenry-Certainly the public information and the information about Operation Relex were issued through the minister's office. That is correct. Senator FAULKNER-That is right. So-and we have talked about this before-in terms of its capacity to correct the public record, Defence had both hands tied behind its back, didn't it? Ms McKenry-Defence certainly had an instruction that all communication with the media was to go through the minister's office. Senator FAULKNER-All press inquiries that came to your unit, or any of the media liaison link points or contact points in Defence, had to be directed back to the minister's office, didn't they? Ms McKenry-That is correct, Senator, yes. Senator FAULKNER-Every single press inquiry that was made was sent back to the minister's press officer? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1123 Ms McKenry-That is correct-on Operation Relex, yes. Senator FAULKNER-On Operation Relex, sure, and SIEV4 is part of Operation Relex. Ms McKenry-That is correct, yes. Senator FAULKNER-How many inquiries would that be? Do you know how many inquiries a day that might be in Defence? Ms McKenry-I would not even be able to guess on that. Senator FAULKNER-You would not be able to guess? Ms McKenry-No, I would not be able to guess. Senator FAULKNER-It would be pretty substantial, though, wouldn't it? Ms McKenry-There was a lot of interest in the whole of Operation Relex. Senator FAULKNER-So that is certainly an impact on the SIEV4 situation in relation to this Defence Instruction (General). Were there any other effects of this Instruction (General) in place that had a direct relationship to the SIEV4 incident that you can inform the committee about-that is, appreciating the general one that all inquiries had to go back to the minister's office? What else did it mean? Were you hamstrung or affected in any other way? Ms McKenry-We were not able to talk about our operations. We were not able to showcase, I suppose, the men and women of the ADF doing their job. Senator FAULKNER-Is there anything else you would draw our attention to? That is important; I accept that. Ms McKenry-It was a very wide question, but that was the main issue of concern for us as a public affairs unit. Senator FAULKNER-Did you express that concern to anyone? I am referring to the positive element-not being able to project the image of the ADF. Ms McKenry-Certainly in the last days of August and early days of September it was raised with the minister's office, yes, that we did want to have the opportunity-as we always do want to have our opportunity, security reasons aside, and they sometimes preclude us from doing so-to showcase our Defence personnel. Senator FAULKNER-So you raised it with the minister's office? Ms McKenry-Certainly it was raised with Mr Hampton in a conversation and certainly it was raised-we are going back now to the last days of August and to early September-with Mr Hendy and with Mr Scrafton. I was at a meeting with Mr Humphreys, Mr Scrafton and Mr CERTAIN MARITIME INCIDENT CMI 1124 SENATE-Select Wednesday, 17 April 2002 Hendy to talk about that. My records show it was 3 September. I recall a meeting prior to that- and I think it was 2 September-with myself, Brigadier Bornholt, Mr Hampton and Mr Humphreys, where those issues were raised. Senator FAULKNER-What did the ministerial staff say to you? Did they take this on board? Ms McKenry-The discussion with Mr Hampton left us in no doubt that all media inquiries and visual information were required to go through the minister's office. When we had the discussion with Mr Scrafton and Mr Hendy, they were not favourably disposed to our proposition. Senator FAULKNER-And is that where it ended? Ms McKenry-Yes, that is where it ended. Senator FAULKNER-Did you outline your concerns and the problems that this approach was causing? Ms McKenry-We outlined that we thought that the men and women of the forces were doing a lot of very positive stuff and that we would have liked the opportunity, for a lot of reasons, to be able to show the Australian public what they were doing. Senator FAULKNER-Did you have a proposal? What was the department's idea? Did you put another suggestion to the minister's staff? Ms McKenry-A whole-of-government public relations plan had been drafted-the drafter of which was Mr Humphreys-which suggested a whole-of-government approach to Operation Relex which would allow the Department of Defence to showcase their personnel and also allow some coordination of what was happening between all of the departments so that we would get a coordinated approach. The intention of that was that we would be able to have tactical operational information explained to the public-but not have Defence look at the policy aspects of that; have the relevant departments look at the policy aspects of that. Senator FAULKNER-So would it be better to ask Mr Humphreys about the whole-of- government plan when we see him soon? Ms McKenry-He was the author. It certainly was discussed internally with the executive and it was drafted after discussion with the CDF. Senator FAULKNER-What was the end point of it? Ms McKenry-It did not go very far at all. Senator FAULKNER-I will ask Mr Humphreys about that. What was it actually called? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1125 Ms McKenry-It was a draft. It was called `Op Relex-outline of proposed strategic communication approach' and it was dated, from memory, 31 August. Senator FAULKNER-Would you be able to provide the committee with a copy of that? Ms McKenry-We can certainly look at providing it. I will check, but I think we can provide it to the committee for the committee's benefit. Senator FAULKNER-What were relations like between the PACC division of Defence and the minister's office? They obviously at times were pretty strained, judging by the evidence that Brigadier Bornholt gave the Senate estimates committee. Ms McKenry-They were professional working relationships. Senator FAULKNER-Didn't we receive evidence from Brigadier Bornholt that, on at least one occasion, Mr Hampton had been very abusive with his staff? Ms McKenry-That is correct. I understand that on, I think, the 10th there was an exchange between Mr Hampton and Captain Belinda Byrne that was not cordial. Certainly, it was related to me by Mr Clarke on the 11th that he had had an exchange with Mr Hampton over the photographs that was not cordial. I think he is actually quoted in the report. Senator FAULKNER-Is that the pattern with Mr Hampton-you described them as `not cordial', I used the word `abusive', but whatever you care to call them: the less than cordial communications? Ms McKenry-I do not know whether you would say it was a pattern. Certainly there were occasions, and staff were asked quite clearly to elevate the situation to members of the PACC exec-me or my executive colleagues-if things did become unpleasant. But in the nature of the job-it is a media job-there are a lot of things happening and there are times when it is fair to say that tempers stray, but I would not describe it as a pattern. Senator FAULKNER-It does not sound like the very professional relationship you told the committee about a few moments ago? Ms McKenry-Certainly I would have to say to you that personally I had nothing but cordial discussions with Mr Hampton. Senator FAULKNER-It was just more junior staff in PACC who were being abused by the minister's staff? Ms McKenry-More junior staff did relate from time to time that the exchanges were not always cordial, yes. On those occasions they were actually asked to elevate concerns to us and we would deal with them. I think Captain Byrne, in fact, did that. Senator FAULKNER-My point is that that does not seem to be indicative at all of a professional relationship or a proper relationship? CERTAIN MARITIME INCIDENT CMI 1126 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-It is certainly not the way I conduct a relationship with people. Senator FAULKNER-I accept that. Ms McKenry-But I would say there are times in the nature of that work when things actually do not go as smoothly as one would like. Senator FAULKNER-There were extensive discussions in PACC from about 10 October, certainly on 10 and 11 October, about issues that relate to SIEV4, particularly the photographs? It is fair to say that, isn't it? Ms McKenry-Certainly there were discussions in PACC on the 10th and the 11th. The dis- cussion and the knowledge of the photographs began in PACC on 9 October. That is correct, yes. Senator FAULKNER-So the 9th, 10th and 11th. Was it dominating your days at that time? Ms McKenry-It was certainly an issue for me during those days; and certainly, as was made known, as other events took over it petered down. I said to you earlier, Senator, that the matter of the photographs and of the correction were discussed. They were discussed within the division and they were discussed around the department. Senator FAULKNER-When you say `discussed around the department', what was-the requirements of the minister and the minister's office on this particular subject? Ms McKenry-The public affairs plan and paragraph 14 of that plan were certainly discussed, yes. Senator FAULKNER-Paragraph 14 of the public affairs plan is what? Ms McKenry-Paragraph 14 states that all imagery and digital stills are to be relayed to the Directorate in PACC for clearance, no image is to be released outside the system, all media inquiries/responses to the MINDEF Media Adviser, Mr Hampton. Senator FAULKNER-And your concern about how that was working was not unknown to your more senior officers in Defence either, was it? Ms McKenry-It was certainly raised by me and by Brigadier Bornholt that there was the instruction out and that the guidance around that instruction had appeared to be broken or ignored on one particular occasion. There was a conversation with Brigadier Bornholt and relevant people to reinforce that directive or make people more aware of it. That subsequently happened. Senator FAULKNER-Which was the particular occasion it was broken? Ms McKenry-Certainly the interview by Commander Banks. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1127 Senator FAULKNER-The Channel 10 interview? Ms McKenry-The Channel 10 interview. Senator FAULKNER-Can I ask you whether PACC was sensitive to the fact that, at this time, as these events flowed right through to 10 November, they were occurring in the context of a federal election campaign and whether you as a professional public servant had a mind and an eye to the caretaker provisions? Ms McKenry-Certainly we were sensitive about the environment in which all of this was operating. That is true; there was an election going on. We were aware of the caretaker conven- tions. Senator FAULKNER-How did this manifest itself in terms of the extraordinary amount of contact between the minister's office, PACC in Defence and the requirements that the minister's office had? Did you seek any advice at any stage about the relevance of the caretaker conventions to the role that you and your division were playing at that time? Did you have any concerns about it? Ms McKenry-We had the caretaker conventions. I recall that, during the course of the caretaker period, there were probably a couple of discussions with our parliamentary area. However, most of the discussions that I was relating to you in clarifying the public relations directives and what we would or would not do took place before the election was called. It was virtually sewn up by 3 September. In terms of interaction with the minister's office on these matters, what went across was strict operational information and nothing else. Any requests that came to us were bounced back to the minister's office. Senator FAULKNER-But all this material is being used in the context of an election campaign. It is not just as if they are matters of importance to Defence that are being approved and cleared by the minister's office; all this is going into the public arena in the context of an election campaign. It was not just business as usual, was it? This material was being used to defend the government's position. Ms McKenry-The material we provided was within caretaker conventions-that is, straight operational material re the responsibility of a minister can be provided during that period. Once it goes to the minister's office, what happens to it is another issue. Senator FAULKNER-Is it true that Minister Reith issued many more press releases in the four weeks leading up to the 2001 election-there were 36-than did the then Minister for Defence, Mr McLachlan, when he released 16 prior to the 1998 election? Do you know about those statistics? Ms McKenry-No, I do not. Senator FAULKNER-Is it not true that Minister Reith's press releases during this period were overtly political in nature? Ms McKenry-I cannot answer that, Senator. CERTAIN MARITIME INCIDENT CMI 1128 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-You looked at them surely. Ms McKenry-No, I do not look at all of his media releases. Senator FAULKNER-Were they distributed by Defence Public Affairs? Ms McKenry-His media releases during the election campaign? Senator FAULKNER-Yes. Ms McKenry-No, his media releases during the election campaign were distributed through his own office channels. For a certain period they were hosted on the Web according to guidelines, but because of some technical problems to do with IT that no longer happened. We did not distribute his media releases during the election campaign from the caretaker period on. Senator FAULKNER-You can assure me that none of the minister's press releases were distributed by Defence Public Affairs? Ms McKenry-To my knowledge, no. Senator FAULKNER-Can you assure me that, in the period 7 October to 10 November, there was no pressure from Minister Reith or his office in regard to the carrying out of public affairs functions of Defence in a way that could be construed as political in any sense? Ms McKenry-To my knowledge, that did not happen. Senator FAULKNER-So you can give me that assurance? Ms McKenry-To my knowledge and my understanding, yes. Senator FAULKNER-Were you asked to distribute Minister Reith's press releases? Ms McKenry-During the election period? Senator FAULKNER-Yes. Ms McKenry-No. Senator FAULKNER-You did not refuse to distribute them? Ms McKenry-I was not asked to distribute them. Senator FAULKNER-I mean PACC; not you personally. Ms McKenry-Not to our knowledge. We did take them off the hosting site, as I explained, but that was because of a technical IT problem and not for any other reason. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1129 Senator FAULKNER-At any time from 7 October to 10 November did you come to a conclusion or express a view that your organisation, the PACC division of Defence, was being asked to carry out a function that was inappropriate, given the election context? Ms McKenry-I was very mindful of the caretaker conventions, and I made sure that my senior staff were also aware of the caretaker conventions. I was satisfied that we acted within the specifications of those caretaker conventions. I also asked staff, if they felt at any stage or at any time they were being asked to do anything that would compromise those conventions, to raise the issue with the executive-and nothing was raised with me or the executive, to my knowledge. Senator FAULKNER-You are confident that you acted in accordance with the spirit and letter of the caretaker conventions? Ms McKenry-I am, Senator. We referred to them a number of times. In fact, they sat on my desk during that period. Senator FAULKNER-You can say to the committee that at no time were you asked to do something that you felt was either in breach of the conventions or in breach of the spirit of the conventions in relation to the Defence public affairs issues in the broad by the minister or the minister's office? Ms McKenry-Not to my knowledge, no. Senator FERGUSON-That is the fourth time you have asked that question. Senator FAULKNER-If that is the case, Senator-and I do not believe it is-I will make absolutely certain I do not ask it again. Senator FERGUSON-Thank you. Senator FAULKNER-I might ask my other questions of Mr Humphreys. Ms McKenry, are you likely to remain in the building? Ms McKenry-I can remain in the building. Senator FAULKNER-If I have any other issues to be directed to Ms McKenry I am happy to place them on notice. CHAIR-Ms McKenry, are you the officer in PACC who assisted Vice Admiral Shackleton to write his `clarifying' statement early in November? Ms McKenry-This is the statement of 8 November? CHAIR-I should remember that date because that is my birthday. Yes, it is the statement of 8 November. CERTAIN MARITIME INCIDENT CMI 1130 SENATE-Select Wednesday, 17 April 2002 Senator FERGUSON-That is why you cannot remember, Senator! Ms McKenry-That is correct. I was in Canberra and Vice Admiral Shackleton was in a car, I understand, somewhere in Perth. CHAIR-You were in Canberra, and you had a telephone conversation of some sort with Vice Admiral Shackleton to frame the words that his statement would contain. Is that the case? Ms McKenry-That is correct, yes. CHAIR-We have had evidence from Commander Banks, Commander of HMAS Adelaide, that, when he became aware that the photos misrepresented the incident and when he became aware of press reports that contained the allegation that children had been thrown overboard, he moved immediately to correct that and passed that information up the line. We have had evidence from Brigadier Silverstone, who was the immediate superior to Commander Banks in this operation and who was based in Darwin, that when he too became aware of the misreporting he corrected it immediately and passed that advice up the line. What strikes me as odd about the words that were used in the `clarifying' statement-which you helped frame in this telephone conversation, I understand-are the words: My comments in no way contradict the minister. I confirm the minister was advised that Defence believed children had been thrown overboard. Within Defence, the Navy knew at that stage, and had known at that stage for almost a month, that that was not true: that children were not thrown overboard. How can those words then be written so that the minister is not contradicted when he says that they were thrown overboard? Ms McKenry-The advice to me-and Admiral Shackleton concurred with this in the statement-was that the government had been advised that children had been thrown overboard. CHAIR-The government, according to our evidence, had been advised of that as a consequence of a telephone call by Air Vice Marshal Titheridge following advice that he had obtained from Brigadier Silverstone and which Air Vice Marshal Titheridge, under a special arrangement, notified the People Smuggling Task Force of on 8 October, I think it was. We have contradictory advice as to whether or not that view was transmitted. As you know, Commander Banks, the man in charge of the operation, says that he never said that and Brigadier Silverstone, his immediate superior, says that he took it down in a note. So we have conflict there, but it is clear from Brigadier Silverstone's evidence that he passed it on. Senator FERGUSON-On a point of clarification, Commander Banks said that he did not recall saying it. He did not say that he did not say it; he said he did not recall saying it. CHAIR-I can point you to the Hansard at several points, because I put the question explicitly to him on a number of occasions. Senator FERGUSON-We could point to others too. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1131 CHAIR-Maybe so, but the authoritative evidence, I believe, is the considered statement made by the commander of the frigate when he addressed us in his opening statement. That is a matter of subjective judgment and it may be that, for your political purposes, you will form a judgment other than the one that I have referred to. However, I am just putting the line of developments clearly down because this is a discussion about the truth, the whole truth and nothing but the truth. Part of the truth is that the Navy were advised that children were thrown overboard back on 8 October; the whole truth is that, according to Banks and Silverstone, they were advised on 10 or 11 October that it did not occur. And we have a statement from the vice admiral saying that he does not contradict the minister, who was sticking with the first piece of advice, not the corrected advice. My question is: how does that occur? Ms McKenry-It occurs because the information that was conveyed to me-and certainly, as I said to you, it was information that Admiral Shackleton happily agreed with-was that the government had been told that children had been thrown overboard, and that was what the clari- fication in the statement was saying, basically. CHAIR-The media get the blame for this and I must say that I think the media deserve criticism, let me make that clear; I think all of us do-certainly politicians do and so do the media-but some criticism is deserved and some is not. I do not disagree with what you are saying in that, from the evidence we have had, advice appears to have been provided that children were thrown overboard. However, the bit I have difficulty with is that, as soon as the responsible commanders became aware of that report appearing in the paper and particularly of the photographs that were misleadingly labelled, they corrected it. The only thing that the vice admiral says is about the first part, nothing about the second part. We are all human and we can make mistakes. The issue is not that we make them, but do we correct them when we make them and own up? Why was there no recognition in this statement that the facts that the minister had referred to were wrong? Ms McKenry-The nature of the statement itself was to actually focus on what Admiral Shackleton had said rather than anything else. Admiral Shackleton had made a statement-I have not got it with me now-and AAP ran a story basically with the suggestion that there was a contradiction to what the minister had been saying. Having received the AAP story, I sought guidance on what, in fact, the reality of the situation was and I also sought to talk to Admiral Shackleton about what he had said. I was told that the government had been advised and I had that discussion with the secretary of the department. There were very few other senior people around that day because it was the day that we had had our church services for the people being deployed overseas so it was a busy day in the office. Allan Hawke said to me that quite clearly the minister and the government had been told that children had been thrown overboard and that needed to be clarified in a statement. So I went downstairs and when I talked to Admiral Shackleton I suggested to him that somehow we had to find a form of words, and we did, and that was the focus of the very short statement that was issued. CHAIR-This is, I think, an accurate quote from the AAP news report, but if it sounds foreign to you please stop me and point out what you think is wrong. I have in front of me these words which I understand are from AAP: CERTAIN MARITIME INCIDENT CMI 1132 SENATE-Select Wednesday, 17 April 2002 Navy chief Vice Admiral David Shackleton said today the navy had never advised Defence Minister Peter Reith that boat people threw children overboard from an Indonesian vessel. Vice Admiral Shackleton said the navy's advice to the minister was that a child, believed to be aged about five or six, had been held over a top railing of the boat with intent to throw the child overboard. Then in quotes from Admiral Shackleton, in his own words: 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. Ms McKenry-That sounds familiar. Senator FERGUSON-That is his first statement, isn't it? CHAIR-Yes. At this stage we know that that advice had been transmitted by Titheridge to the committee and apparently to Minister Reith, but we also know that the advice correcting that a day or so later had also been transmitted. We know that the minister had run with the first advice and not with the second correcting advice. We know that Admiral Shackleton made this statement in the words that you have broadly confirmed. Why wasn't the correcting advice referred to in the clarifying statement? Ms McKenry-I was not aware of the points of reference that you talk about now. I have now become aware of them because of the reports and how information was conveyed or not conveyed. At the time of sitting down with me in Canberra and the vice admiral in Perth, the focus was on whether or not the government had been given advice that children had been thrown overboard. Senator FERGUSON-And they had. Ms McKenry-And the information provided to me by the secretary of the department was that that had in fact occurred. The information that the vice admiral- CHAIR-What had occurred was that the advice was given, but what we know did not occur was that children were thrown overboard. Ms McKenry-That is correct. Advice had been given- Senator FERGUSON-The clarifying statement was to give the advice. Ms McKenry-And that is what the clarifying statement was about. Vice Admiral Shackleton-I think we used the word `Defence' rather than `Navy', and I think that was probably the only point of discussion-was happy to issue that statement. CHAIR-When Dr Hawke spoke to you about this, what did he say to you? Ms McKenry-When I took the AAP story up there I showed it to him. He read it and he basically said, `We need to issue a clarifying statement, because, in fact, the government was told that children were thrown overboard.' CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1133 CHAIR-And the government was told later that they were not. That was left out, was it? Ms McKenry-That was not discussed any further. Senator FERGUSON-Mr Chairman, the point of the clarifying statement actually was to correct a misstatement by the vice admiral in the first place. Because his first statement, which you read out, said that the government had been advised that children had not been thrown overboard. The clarifying statement did not come to the issue of whether or not children had been thrown overboard; it was whether or not the government had been advised that children had been thrown overboard. CHAIR-Yes. But if you tell only part of the truth that is convenient to you, you in fact tell a lie. To tell the truth, you need to tell the whole truth. Senator FERGUSON-You are pontificating, Mr Chairman. CHAIR-No, I am not pontificating; you were pontificating and I was correcting you. Senator FERGUSON-It was correcting a statement. CHAIR-No. You surely agree that the oath is to tell the truth, the whole truth and nothing else but the truth. It is not to tell selective portions of the truth to suit your case. Senator FERGUSON-Are you referring to Ms McKenry's oath that she has taken? CHAIR-I am referring to you, and I would be grateful if you would allow me to continue. Senator FERGUSON-I did not know I was under oath, Mr Chairman. CHAIR-I beg your pardon? Senator FERGUSON-Am I under oath now for something? CHAIR-No. I am pointing out to you a basic, elementary fact, because you wish to engage in a debate about it. Senator FERGUSON-Because you are distorting the actual event. CHAIR-I am not distorting it. The truth is that no children were thrown overboard. The truth is that Vice Admiral Shackleton said words that contradicted the minister and that he then issued a so-called clarifying statement. Senator FERGUSON-Because his first statement was not true. CHAIR-Are you saying, then, that Vice Admiral Shackleton did not tell the truth? Senator FERGUSON-I am saying that he made a mistake in his first statement. CERTAIN MARITIME INCIDENT CMI 1134 SENATE-Select Wednesday, 17 April 2002 CHAIR-No, he did not tell the whole truth. Senator FERGUSON-He made a mistake in his first statement. Senator JACINTA COLLINS-The statement was actually quite accurate. Senator FERGUSON-No, it was not. He said that the government had not- Senator JACINTA COLLINS-No. He said, `Navy had not told.' That is accurate: it was not Navy; it was Brigadier Silverstone. Senator FERGUSON-Through the Navy. Senator JACINTA COLLINS-He is not in the Navy. Senator FERGUSON-He is from the Navy. Senator JACINTA COLLINS-No, he is not. Senator FERGUSON-Yes, he is. Senator JACINTA COLLINS-He is from NORCOM; it is a joint task force. CHAIR-We can have this debate in private among ourselves whenever we want, and no doubt we will. Ms McKenry, when you framed these words, did you consult with Minister Reith's office about them? Ms McKenry-No, not at all. CHAIR-Did you notify Minister Reith's office that the admiral was going to make a `clarifying' statement? Ms McKenry-What happened after I had been upstairs to talk to the secretary was that I received a call from Mr Hendy, who had obviously read the AAP report. He said that his belief was that a clarifying statement should be issued, that he would leave that to us and, once we had issued it, could we make it available to his office and also send a copy to Mr Sinodinos in the Prime Minister's office. That was it. There was no reference back to Mr Hendy at any stage, or to the minister's office at any stage. CHAIR-So the people who spoke to you that day about the need for a clarifying statement were Vice Admiral Shackleton, Dr Hawke and Mr Hendy? Ms McKenry-That is correct. CHAIR-Was there anyone else? Ms McKenry-No-one at all. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1135 CHAIR-Was any explanation given as to why it should be sent to the Prime Minister's office? Ms McKenry-No, there was no explanation. CHAIR-Did Admiral Shackleton say anything to you about no children being thrown overboard? Ms McKenry-In the course of the discussion, no, he did not. CHAIR-Since you now know that none of this was true and that children were not thrown overboard-that is an established fact; that is what the Bryant report finds, that is what the Powell report finds, and that is what the evidence of the people on the scene shows. Ms McKenry-I have more information now than I did then, yes. CHAIR-I know hindsight is a wonderful thing and we would all wish to be equipped with it ahead of time. But now that you have it, what do you think that clarifying statement did? Did it clarify the issue or did it mislead people into believing that children were thrown overboard? Ms McKenry-I think it clarified the fact that the government had been advised that children had been thrown overboard. That was a fact of life-they had, and he was seeking to clarify that. CHAIR-But did it tell the truth? Ms McKenry-With respect to that particular bit of information, yes, it did tell the truth. CHAIR-With respect to the incident? Ms McKenry-With respect to whether or not the government had been advised, certainly the statement told the truth. CHAIR-With respect, though, to the incident that this referred to? Ms McKenry-With respect to the incident, we now know-as you say-that there was a lot more information than we had at the time. But I did not have that information at the time. CHAIR-I am not challenging you on that. I am just going to the sublime question of the truth. Did it, in your judgment now, tell the truth? Ms McKenry-As I have said to you, I believe that it told the truth in clarifying a particular statement, yes. CHAIR-But about the incident? CERTAIN MARITIME INCIDENT CMI 1136 SENATE-Select Wednesday, 17 April 2002 Ms McKenry-The incident was wider context, and the purpose of the clarifying statement was whether the government had been told or had not been told. CHAIR-So do I take it that, by declining to answer the question about the wider incident, your answer is that it did not tell the truth? Senator FERGUSON-Mr Chairman, that is an unfair- CHAIR-It is not an unfair question. Senator FERGUSON-It is an unfair proposition to put to a witness. Ms McKenry-The wider context was not being considered at the time. CHAIR-That is why I am asking you to comment with hindsight, now knowing what you know. Ms McKenry-With hindsight, now knowing what I know, I still believe that the statement, as made, was a truthful statement. CHAIR-The whole truth? Ms McKenry-The government had been advised that way. CHAIR-I have trouble with this. Let me put to you directly where I have the trouble. This occurred the second day after an announcement of a federal election. This was on the front page of every newspaper. It was a notorious story. Senator FERGUSON-Notorious? CHAIR-Yes, it was. That is why we are having this inquiry. There is public concern. Senator FERGUSON-You have trouble believing every witness, Mr Chairman. CHAIR-Yes, I do have trouble believing every witness- Senator FERGUSON-You are a very sceptical man. CHAIR-and that is a proper approach for an inquiry to take, to examine witnesses. Senator FERGUSON-But not to disbelieve them. CHAIR-The question that the reports were about was: were children thrown overboard or not? We know photographs were published which are now proved to be untrue. With the glorious advantage of hindsight, we know that is untrue and it was deceitful at the time. We know that. So, to the wider incident: are you satisfied that the truth was told? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1137 Ms McKenry-Going back to the statement, as I said, I am satisfied that the- CHAIR-I know. We are at sixes and sevens: every time I say `incident' you say `statement', and every time you say `statement' I say `incident'. Senator FERGUSON-Good heavens! She is only responsible for the statement. CHAIR-Let us do a trade. You tell me what you think about the incident and I will tell you what I think about the statement. Senator FERGUSON-I would decline that offer, Ms McKenry. CHAIR-Thanks for your assistance, Senator Ferguson, but you are out of order. Senator FERGUSON-So is the question. CHAIR-No, it is not. It is entirely in order. Senator FERGUSON-`You tell me and I will tell you'! CHAIR-That is a fair deal. Senator FERGUSON-It is not a deal at all. CHAIR-You tell us, with hindsight, whether you believe people were properly informed as to the incident. Ms McKenry-The information I have now suggests that there was a lot more to the incident than I knew at the time. CHAIR-Okay, thanks. That will do, I think, at that point. Senator FAULKNER-I do not want to put words into your mouth, Ms McKenry, but I think earlier in your evidence today-and I just want to clarify this-you indicated that Mr Scrafton had indicated that you should get the photographs off the unrestricted system. I want to be clear about that. Ms McKenry-No, that was probably the way I expressed it. That was not the case. What I was saying was that the email that I had sent to Mr Scrafton contained the photographs and the captions. Within the covering note to that email that I put together, I informed Mr Scrafton that the photographs were also on the unrestricted system. I think I used words like, `It has now come to my knowledge that these photographs are on the unrestricted system.' When I talked to Mr Scrafton, he told me not to worry about them being on the unrestricted system. In other words, `Don't worry pursuing taking them off.' So at that point I took no further action and I did not even pursue it within my own division. CERTAIN MARITIME INCIDENT CMI 1138 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-You did not have a concern about the restricted system; your con- cern at that point was the unrestricted system. Ms McKenry-There are two systems within the organisation: a secret system and a restricted system. The restricted system is restricted in that it is not an open system. There is restricted information on it as well as information which is not restricted. But from the restricted system within Defence you can actually send stuff to the outside world and you can circulate material to virtually everyone who has a computer. The secret system is a very different system. Not everyone has a secret computer and you cannot easily disseminate information from the secret system to the outside world; there are barriers there. A lot of operational information is transferred on the secret system. Senator FAULKNER-And separate to that there is an unrestricted system. Ms McKenry-No, there is not. There are only two systems: restricted and secret. Senator FAULKNER-For the purposes of the record, how do you define `unrestricted system'? Ms McKenry-We do not have an unrestricted system. Senator FAULKNER-Have I misheard you using the terminology `unrestricted'? Ms McKenry-Yes, I think so. What I was saying was that I had found that there was material on the restricted system. Although the word `restricted' is used, anyone can transfer material from the restricted system to the outside world. You have to note that it is unclassified material to be able to do that. And you can send material around the organisation off there. Senator FAULKNER-I think I did misunderstand what you were saying. That was why I wanted to clarify it. At no stage did Mr Scrafton say to you that you ought to remove material from any Defence system? Ms McKenry-That is correct, yes. Senator FAULKNER-Whether I misunderstood you or whether it is unclear I know not, but I think it is useful that- Ms McKenry-I think the word `restricted' is confusing. Senator FAULKNER-The other matter I wanted to raise with you was in your submission to the Powell report. At the end of your submission dated 29 November last year, in post action events, in paragraph 17 it says: In briefings with Senator Hill's staff (27/11/01), the incident of the photos was raised by staff. They were interested in who gave the authority to release the photos and what the photos actually depicted. They were also keen to know if all this material would by captured in the internal inquiry. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1139 Can you give us the background on why Senator Hill's staff were going back to the issue of the photos in briefings in November? Ms McKenry-Can I have a page reference to that? Senator FAULKNER-It is the last page of your submission to General Powell, at paragraph 17. Ms McKenry-Could you ask the question again? Sorry, you threw me. Senator FAULKNER-I was asking what the background was. At that stage, why were you going back with Senator Hill's staff to this issue of the photos in November of last year? Ms McKenry-It was at one of the initial meetings with the staff. The photographs were raised in passing and I think the conversation came up about what we knew about them. The question was asked and I said, `Yes, they were released through Public Affairs and Corporate Communications.' Their question was, `At the time, who gave the authority for those to be released?' Senator FAULKNER-Were you able to say that to them? Ms McKenry-Yes, I explained that the instruction had come from the minister's office and from Mr Hampton. It did not take very long in what I think was close to a two-hour briefing. Senator FAULKNER-Did you say that the photos had been misrepresented through the period of the election campaign? Ms McKenry-I do not recall precisely whether I said that. Certainly, they were more concerned about the release and how they had been released. I do not recall that. I do recall that it came up, and hence it is there, but it was not a big point of discussion. Senator FAULKNER-What was this about being keen to know if the material would be captured in the internal inquiry? Ms McKenry-They asked whether all this information would actually be picked up in the inquiry. Senator FAULKNER-What was the background to that? Ms McKenry-I had explained at the time that there was an internal inquiry. The comment was made, `Would this be all captured in the internal inquiry?' My comment was that I thought it would, and that was it. Senator FAULKNER-Senator Hill's staff did not pass any comment about the operation of the former minister's staff, did they? Ms McKenry-Not at all. CERTAIN MARITIME INCIDENT CMI 1140 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-You mean not to you. Ms McKenry-Certainly not in the course of that discussion, not to me, no. CHAIR-Are we all done? There being no further questions, thank you, Ms McKenry. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1141 [2.17 p.m.] HUMPHREYS, Mr Brian Andrew, Director General, Communication Strategies, Department of Defence CHAIR-Routinely, we ask people appearing before us if they have any opening statement to make or any comments to put on the record. Mr Humphreys-I have no opening statement. CHAIR-You are then available to answer questions? Mr Humphreys-Yes. Senator FAULKNER-Mr Humphreys, we heard from Ms McKenry about the draft Op Relex outline of strategic communications approach document. I hope I have the right title, but you know what I am referring to. Mr Humphreys-Yes. Senator FAULKNER-Is it best described as the draft? What is a good shorthand way of describing this, do you reckon? Mr Humphreys-It is basically Defence's proposed strategic direction for the handling of organisational communication. What I have here is exactly right. The working title is Operation Relex-outline of proposed strategic communications approach. Senator FAULKNER-I gather that, from what Ms McKenry was telling us, you are either the author or one of the authors of this document. Is that correct? Mr Humphreys-That is right. Senator FAULKNER-Would you say that you were the primary author? Mr Humphreys-I was the primary author. I had staff assisting me actually typing it up. Senator FAULKNER-And this was developed by staff in PACC, was it? Mr Humphreys-Yes. Senator FAULKNER-Okay. When did you prepare that draft? Mr Humphreys-That was prepared on 30 August 2001. Senator FAULKNER-When you say it was prepared then, was it finalised then? CERTAIN MARITIME INCIDENT CMI 1142 SENATE-Select Wednesday, 17 April 2002 Mr Humphreys-The document itself was never finalised. As a draft, it was basically a pro- posal. The document is essentially a two-page strategic direction. It was submitted to the secre- tary in CDF. That document then formed the basis of a larger document, which was basically the Op Relex PI plan, or public information plan-again based on that same strategic direction. Senator FAULKNER-The draft communication strategy sits with the public information plan. Is it in a sense a broad element of the public information plan or is it a small part of it? I want to understand how it fits in with the overall plan. Mr Humphreys-The Operation Relex strategic direction was basically a substrategy or an antecedent of the proposed Tampa public information plan that we developed. Both of these documents were based on the strategic guidance, direction and principles established in the Defence Organisational Communication Strategy. Senator FAULKNER-We have asked for a copy of the draft to be made available to the committee. I think Ms McKenry is assisting us with that, which is appreciated. We have not received that yet, so, very briefly, can you tell the committee what approach the draft took? Mr Humphreys-In broad it says that all of our communications should be led by the strategy; that the strategy in turn should be driven by government messages; that it should have a strategic and operational information focus; that it should include coordinated whole of government; that it should include mass and targeted information with messages going to multiple audiences; and that it should include sustained information, leveraging off the initial three weeks for a three-month program. Senator FAULKNER-As the primary author of the strategy, why did you establish those principles or objectives? Mr Humphreys-As I said, all the strategies should take their guidance from the overarching strategy. We have some principles established in that strategy that needed to be reflected in that. So we start from that basis, and then it is our goal, as the public information office within the Public Service, to ensure that we adequately and effectively communicate government messages. That is what drove that strategy. Senator FAULKNER-I see. Was the draft strategy consistent with the broader defence organisational strategy? I do not know whether I am using the correct terminology, but it is something like that. Mr Humphreys-The Defence Organisational Communication Strategy-yes, it was. Senator FAULKNER-So it was consistent? Mr Humphreys-The draft was, yes. Senator FAULKNER-Did this draft set out details such as appropriate ways for information regarding Operation Relex to be made public? Does it go to that level of detail? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1143 Mr Humphreys-Yes, it does. Senator FAULKNER-In that context, for Operation Relex, does it go to the appropriate role for the Minister for Defence? Mr Humphreys-Yes, it does. Senator FAULKNER-More broadly, government? Mr Humphreys-Yes, it does, and how Defence would interface with that whole-of- government communication. Senator FAULKNER-Defence organisation in the broad? Mr Humphreys-Yes. Senator FAULKNER-Any consideration given the timing of the caretaker conventions? Mr Humphreys-I could be wrong, but from recollection that was not an issue on 31 August. Senator FAULKNER-You are right; that is why I ask you. I make the qualification. Mr Humphreys-No. Senator FAULKNER-It is in advance, of course, as you probably say, of the caretaker conventions. When you go to the role for the defence organisation, and the role for the minister and government and the like, could you give us the flavour of what this strategy is saying about the details of the respective roles? Given this committee, I am particularly interested in the minister and the government, but I think minister, government and Defence might be helpful given it is only a short document. Mr Humphreys-Noting that it was only a draft document, the document itself basically said that the process would be strategy led, aimed firstly at sending clear, constant and consistent whole-of-government messages. Messages might include, for example, that the government is resolved to effectively deter illegal incursions of our borders. So it established the sorts of messages. It proposed the role of ministers and the Prime Minister in the making of strategic level announcements on a regular basis. It then went to the determining of somewhat secondary level coordination of information across departments and then to the tertiary level, which recommended that daily media briefings be provided on the operation to media in Canberra by government and Defence officials. Senator FAULKNER-We have heard about a limitation in relation to the minister and the minister's office. Was there any limitation about that? I ask this in the context of some of the discussion I had a littler earlier with Ms McKenry about the background to the Defence Instruction (General) of August 2001. Were there requirements that information be channelled through the minister's office? CERTAIN MARITIME INCIDENT CMI 1144 SENATE-Select Wednesday, 17 April 2002 Mr Humphreys-The August 2001 version of the DI(G) did not have any impact on what was proposed in the Op Relex public information plan. Senator FAULKNER-Why was that? Why doesn't that have any involvement? Mr Humphreys-Essentially because the assumption was that the strategic direction would have been established and agreed with the minister's office before it was acted upon. The DI(G) basically, in essence, required that the minister be aware of any proposed release of information and the mechanisms for doing that. Essentially, the DI(G) did not restrict what could be done under this proposed draft strategy. Senator FAULKNER-Again, this is something that I raised with Ms McKenry: under this draft, who is proposed to have the role of operational level announcements? Mr Humphreys-This draft proposed that the detailing of operations would be done by a senior naval or senior Defence official. Senator FAULKNER-That is quite a significant difference to what occurs as a result of the DI(G) of August last year, isn't it? Mr Humphreys-No. The DI(G) itself says that, whilst information can and should be released by Defence officials, operational announcements need first to have been cleared through the minister's office. The difference is that we are saying here that significant announcements are provided by the minister, and the detail as proposed in this strategy-the release of information, the release of operational detail-comes from a military or a uniformed officer. Senator FAULKNER-That is what I am asking. That is a useful shorthand way of describing it. I think you have mentioned before that broad policy and strategic direction are a matter for government; the nitty-gritty, if you like, at the operational level is a matter for the ADF, the relevant services or whatever. Mr Humphreys-Yes. Senator FAULKNER-What actually is the final process for deciding on a communication strategy for an ADF operation? Perhaps I should have asked this of Ms McKenry, but I am sure you can help me. How does the general process work in relation to a communication strategy like this? Mr Humphreys-In the case of Operation Relex and Tampa we put together a proposal. That proposal is staffed around Defence, a position is agreed, the position is then taken to the minister's office and the minister's office then determines the way forward. Senator FAULKNER-But do you take it through the secretary or CDF first? Mr Humphreys-In the case of the strategic direction for Operation Relex we did; for more routine matters we would not. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1145 Senator FAULKNER-So what is the process that was followed in relation to Operation Relex? Mr Humphreys-As I said, we established a strategic direction; we provided a brief overview of that to the secretary and CDF to take with them to whole-of-government fora. Then, on the basis of CDF-secretary satisfaction with that very broad document, we put some meat on the bones of that strategy. We then took that strategy, as Ms McKenry has told you, to Mike Scrafton and Peter Hendy. We also discussed it with Ross Hampton, and that strategy was set aside at that point. Senator FAULKNER-So your draft Operation Relex communications strategy was put aside at the minister's office or at some whole-of-government forum? Mr Humphreys-I know that we provided a brief to the secretary and CDF on our proposed way forward for use at a whole-of-government forum; I am not sure whether it was SCONS or NSC. It was unclear or uncertain as to how that strategy was going to progress from there, so we then took that strategy to Minister Reith's office and then, as Ms McKenry said, that office were not predisposed-as they are perfectly entitled to-to take our proposed option. Instead they put their own forward. Senator FAULKNER-You are not sure which. It goes to either the NSC, the National Security Committee of Cabinet, or SCONS, the Secretaries Committee on National Security, or to both of them? Mr Humphreys-Yes. Senator FAULKNER-Is it normal for a communications strategy to go to the National Security Committee of Cabinet or the Secretaries Committee on National Security? Mr Humphreys-It was actually produced for use at one of those fora, which is why I am not certain as to which one it went to. It was really a proposed strategic direction that the secretary or CDF could have to put at one of those fora if the issue of the handling of public information regarding Relex was discussed. Senator FAULKNER-But it certainly would not go for cabinet approval or anything like that? Mr Humphreys-No, it certainly did not go anywhere for formal approval. Senator FAULKNER-You do not know whether it goes to the secretaries committee or the National Security Committee of Cabinet-it's fair enough you do not know that-and I will ask you to take that on notice on behalf of the department so that we can find out, if you wouldn't mind. Mr Humphreys-Yes. Senator FAULKNER-But you do not know? CERTAIN MARITIME INCIDENT CMI 1146 SENATE-Select Wednesday, 17 April 2002 Mr Humphreys-No. Senator FAULKNER-Can you let me know where it it is not supported? Mr Humphreys-It may or may not have been raised at those fora. Certainly a brief was prepared to take into those fora. It was my understanding that following that Defence was to be given the public affairs lead on the handling of Operation Relex, so that necessitated the drafting of the somewhat longer version of that strategy. We then took that longer version to Minister Reith's office. Senator FAULKNER-And the longer version was not accepted or was rejected by the minister's office? Mr Humphreys-Not accepted. Senator FAULKNER-How did you learn about that? Mr Humphreys-As Ms McKenry said, we had a meeting with Mike Scrafton and Peter Hendy, and we also had a separate meeting with Ross Hampton at which the role of the minister's media adviser as the conduit for information in relation to Op Relex was established. Senator FAULKNER-Under whose signature is the brief that goes to the minister's office? Does that go under Ms McKenry's signature, Dr Hawke's or someone else's? Mr Humphreys-We did not put forward a formal brief. In that meeting with Mr Hampton, and in the separate meeting with Mr Scrafton and Mr Hendy, we discussed the proposed way forward and we gave them a copy of the draft. When you are in an environment where you are having six or seven meetings on the subject at one time, you do not have time to do a full, agreed and signed-off brief; you basically put the proposal and see whether or not it is going to fly. Senator FAULKNER-I understand that. What you are saying is that it was a draft for discussion. Is that a fair way of describing it? Mr Humphreys-That is a good way of describing it, yes. Senator FAULKNER-And you had that discussion in two meetings? Mr Humphreys-Yes. Senator FAULKNER-One of those was with Scrafton and Hendy, from the minister's office? Mr Humphreys-Yes. Senator FAULKNER-Who was involved in that meeting from the departmental side? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1147 Mr Humphreys-Ms McKenry, Mike Scrafton, Mr Hendy and I. Senator FAULKNER-And in the separate meeting with Mr Hampton? Mr Humphreys-Brigadier Bornholt, Ms McKenry and I. Senator FAULKNER-Do you know the dates of those meetings? Mr Humphreys-I will take that on notice. They were around 30 August to 2 September. Senator FAULKNER-I would appreciate it if would you take that on notice and let us know. It was made clear to you at that point they were not acceptable? Mr Humphreys-I have 3 September as the date for the Scrafton-Hendy meeting. Senator FAULKNER-Please take on notice the date of the Hampton meeting. I am assuming that it was around the same time. Mr Humphreys-From memory, it was 2 September. Senator FAULKNER-The Hampton meeting was before the Scrafton-Hendy meeting, was it? Mr Humphreys-Yes. Senator FAULKNER-I might come back to those meetings in a moment. I want to be clear about the process: is there currently an Operation Relex communication strategy in place? Mr Humphreys-Yes, there is. Senator FAULKNER-There is a current one as we speak? Mr Humphreys-Yes. Senator FAULKNER-When was that implemented? Mr Humphreys-That was drafted shortly after these meetings. Senator FAULKNER-So yours gets bumped off, basically-excuse the vernacular-and something else is put in place? Mr Humphreys-We took our proposal to those meetings. In a meeting with Ross Hampton and Mr Hendy, we ultimately discussed their proposed way forward. Senator FAULKNER-So this was a third meeting? CERTAIN MARITIME INCIDENT CMI 1148 SENATE-Select Wednesday, 17 April 2002 Mr Humphreys-No. This was the meeting with Ross. We established the way they would like to have this done. We then discussed that separately with Mr Hampton and Mr Hendy. Senator FAULKNER-No, we have got our names wrong here. I am sorry to pull you up. The first meeting was Hampton on his own, with you two, wasn't it? Mr Humphreys-Yes, that is right. Senator FAULKNER-The second meeting was Scrafton and Hendy with you two? Mr Humphreys-Yes. Senator FAULKNER-For the Hansard, I think we might have got a few of the names around the wrong way. Can you briefly go through the first meeting with Hampton? Mr Humphreys-Essentially, we put forward our proposed handling of communications. Mr Hampton then outlined his preferred way forward. We immediately set in train mechanisms to deliver that. We subsequently put the original proposition to Mr Hendy and Mr Scrafton. Senator FAULKNER-`Original' being your- Mr Humphreys-Our draft. Senator FAULKNER-To Scrafton and Hendy? Mr Humphreys-Yes-and the decision was that we would continue with the strategic direction established in our discussion with Mr Hampton. Senator FAULKNER-What you are really saying to me is that you had two cracks at it, basically. You had a meeting with Hampton and he suggested a different approach, but you tried again with Scrafton and Hendy, and the outcome of that was to progress the different approach. Is that a fair summary? Mr Humphreys-Yes. Senator FAULKNER-So the Operation Relex communications strategy that is currently in place is the one that comes about as a result of the discussions you had around 2-3 September with former Minister Reith's ministerial staff. Mr Humphreys-That is right. Senator FAULKNER-Do you know what the kick-off date of that was? Did it have a formal start date? Mr Humphreys-No, but there were situation reports which indicated that around 3 September the strategic direction provided by Mr Hampton had been communicated-in this case we are talking about the application of it in the context of Tampa. The strategic direction CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1149 established in Tampa was distributed on 5 September from COMAST. That strategic direction then became the basis of the Op Relex plan, and the copy I have is undated. Senator FAULKNER-You may not have seen this, but amongst the submissions to the Bryant report, which we have not made available to this committee, is one from Ms McKenry, and there is a thing called the Op Relex PA plan attached to it. Are we talking apples and apples here? Is that the communications strategy that is currently in place? Mr Humphreys-The Operations Relex PA plan, yes. Senator FAULKNER-That is attached to Ms McKenry's submission. Mr Humphreys-Yes. Senator FAULKNER-Is that strategy consistent with the Defence organisational strategy? Mr Humphreys-It is not consistent with the proposed strategy that we put forward. Senator FAULKNER-Where is it inconsistent? Mr Humphreys-I suppose the issue comes down to the most effective way of meeting the desires of the Defence Organisational Communication Strategy. In the first instance, we have the desire to provide as much information as we possibly can on a regular basis in a timely fashion. The principles that guide the Defence Organisational Communication Strategy include being innovative with organisational communications, being proactive in dealing with issues, engaging with and listening to audiences, communicating openly and honestly and providing relevant and timely information, withholding information only when disclosure would adversely affect security or threaten safety or privacy, using research to continuously evaluate the strategy, supporting and encouraging effective internal communications and working cooperatively with other government agencies to achieve whole-of-government communications objectives. I think it is true to say that our concern about the strategy that was used was that it was more restrictive than we think an ideal strategy should have been and, appropriately, we believe, we took steps after the end of the caretaker provision to seek to remedy that in relation to briefs- Senator FAULKNER-It has not been remedied yet. Mr Humphreys-It has in relation to the conduct of operational briefings for Op Slipper. The revision of the DI(G) et cetera was meant to ensure that our communications were in keep- ing with that overarching strategy. Senator FAULKNER-But what reasons were given to you at the two meetings you had- one with Hampton and the other with Scrafton and Hendy-as grounds for rejecting your proposal? Mr Humphreys-Essentially that the minister's office had their preferred course of action and that we would support that. CERTAIN MARITIME INCIDENT CMI 1150 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-They had a preferred course of action, but I am trying to focus in on the differences and the reasons. Help me with that. Mr Humphreys-Maybe it is a question you should put to Mr Hampton. Senator FAULKNER-Maybe it is. Given that it is only you and Ms McKenry that we have available to this committee as witnesses-and at this stage there is an indication of an unwillingness by Mr Hampton to attend-sadly I am limited to asking you. At the end of the day, you are one of the two departmental officers who are here. I think it is a reasonable question for me to ask you. Mr Humphreys-I think the guiding motivation of Mr Hampton was to ensure that the minister's office could see the information before it was released, was aware of information before it was released and had an ability or an opportunity to decide which information was released. The proposal we put involved putting military officers in that loop in terms of the provision of information. The alternative offered was that the information would be released through the minister's office. Both involve a degree of subjectivity as to which is the best way to manage information. Mr Hampton had his preferred way of ensuring that the minister was fully aware of the information that was being provided to the public. Senator FAULKNER-Surely in the meetings you were told, or you asked, specifically what the reasons were for rejecting your proposal. Did any of the three ministerial staffers level with you about that? Mr Humphreys-No. Senator FAULKNER-So you do not know what the reasons were for your draft being rejected? Mr Humphreys-No. Senator FAULKNER-They did not tell you? Mr Humphreys-As I have said, they basically listened to our proposal and put their proposal forward. We accepted that and began using that as strategic direction and guidance, which then went through the chain of command to our public affairs officers on the ground. Senator FAULKNER-That is, I must say, reasonable enough as far as it goes, but I find it incredible that there was not a little bit more of an explanation forthcoming from the ministerial staff. Mr Humphreys-The only explanation that I can recall clearly is that Ross articulated his role as being responsible for coordinating with other ministerial officers the information sent out by Defence. He was more comfortable being the only point of information coming out from Defence so that he could ensure that Defence information was coordinated with information from Foreign Affairs, Immigration and other ministerial officers. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1151 Senator FAULKNER-Did you get a feeling for what information might be better, in the view of these ministerial staffers, out in the public and what might be better kept under wraps? Did they say that? Mr Humphreys-No. They gave us some particular instruction as to the types of images that should be captured, the types of comments that should be made to local media and the arrangements for local media. That is essentially the limit to the guidance provided. Senator FAULKNER-What was the other thing after `the types of images that should be captured'? Mr Humphreys-The interaction with media on the ground and in Canberra in relation to, first of all, Tampa and, more broadly, Relex. Senator FAULKNER-Give me some more detail on the types of images that should be captured. What were the types of images? Who was this-Mr Hampton or Mr Scrafton? Mr Humphreys-Mr Hampton. Senator FAULKNER-What did Mr Hampton say were the types of images that should be captured? Mr Humphreys-More appropriately, the types of images that should not be captured. Senator FAULKNER-Yes, should or should not. Mr Humphreys-Essentially, we were told to concentrate on the ADF activities at the time-so the work of ADF personnel in relation to Operation Relex, first of all, as targets of opportunity for photographers. We were then given instructions in regard to photographing SUNCs-or whatever the latest term is. We were certainly aware that Immigration had concerns about identifying potential asylum seekers, so we got some guidance on ensuring that there were no personalising or humanising images taken of SUNCs. Senator FAULKNER-Did you say that you received an instruction to ensure that there were no humanising images of SUNCs? Mr Humphreys-Yes. Senator FAULKNER-You are kidding me? Mr Humphreys-No. Senator FAULKNER-This is from Mr Hampton? Mr Humphreys-Yes. CERTAIN MARITIME INCIDENT CMI 1152 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-What did you and Ms McKenry say to the ministerial staffers who said this? Mr Humphreys-You have got to realise that this is in the context of not identifying potential asylum seekers because it interferes with their claims. I am not aware of the specifics, but that was the general reason given originally by the department of immigration. That guidance was then translated back down to the public affairs teams on the ground. Senator FAULKNER-Am I going too far to ask you whether it was made clear to you that the asylum seekers were to be dehumanised? Mr Humphreys-Yes, it is going too far. Basically, we were told: do not take any photographs of asylum seekers. Senator FAULKNER-Because that might humanise the refugees? Mr Humphreys-`Humanise', `personalise'-both those words were used. Senator FAULKNER-This is occurring during the last federal election campaign, isn't it? Mr Humphreys-No, this guidance came in advance of the election campaign. Senator FAULKNER-The meeting occurs in advance of the election campaign, but it applies during the election campaign. Mr Humphreys-Yes. Senator FAULKNER-Sure, the meeting occurs on 2 and 3 September and the election is not called until early October, but the guidance applies in the election campaign. Did you or Ms McKenry report the outcomes of this meeting to any of your superiors in Defence? Mr Humphreys-I personally did not. Because Brigadier Gary Bornholt was there, obviously that made its way up the chain of command and was the basis of the advice through the chain of command to the public affairs officers on the ground. Senator FAULKNER-Yes, so what we have is the Minister for Defence saying in the im- mediate post-Tampa environment, `Don't humanise the refugees.' That is right, isn't it? Mr Humphreys-Yes-personalise, humanise. Senator FAULKNER-Was this a broader perspective in government or was this just the view of the minister's staff? Mr Humphreys-I have no way of knowing that. Senator FAULKNER-Well, did the minister's staff say to you that this was the view of the Minister for Defence? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1153 Mr Humphreys-No. Certainly the discussion related to immigration and asylum seeker claims. We did mention that. I know we have had that discussion with Immigration in the past about identification. Senator FAULKNER-I am sorry, but I do not understand that. Could you just explain that to me? Mr Humphreys-In the past we have had cause to discuss more broadly the requirement not to identify asylum seekers because it has some bearing on the immigration process. Senator FAULKNER-Was it passed on to you or Ms McKenry that this was view of the minister for immigration too? Mr Humphreys-No. Senator FAULKNER-Or the staff of the minister for immigration? Mr Humphreys-No. Senator FAULKNER-Was it suggested to you that this was the view of the Prime Minister or the Prime Minister's office? Mr Humphreys-No. Senator FAULKNER-So this was just all the work of one member of the staff of the Minister for Defence? Mr Humphreys-The guidance was provided by Mr Hampton. Senator FAULKNER-You just took that at face value? Mr Humphreys-Yes. Senator FAULKNER-Did you or Ms McKenry actually enter into a discussion about the appropriateness or otherwise of an instruction coming from the Minister for Defence's staff members that they did not want anything done which would humanise the refugees? Mr Humphreys-No, we did not discuss it as an issue because, in my particular case, I was aware of earlier concerns expressed by Immigration regarding the identification of asylum seekers. Senator FAULKNER-So, in relation to the broader communication strategy, there was no suggestion to you or Ms McKenry that other ministers or other levels of government were involved in this at all? Mr Humphreys-Involved in what aspect of that strategy? CERTAIN MARITIME INCIDENT CMI 1154 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-In terms of the feedback you were getting from the ministerial staffers at the time, were you left with any impression at all that these matters that were being reflected and said were any broader than just a reflection of the view of the Minister for Defence and his staff? Mr Humphreys-I think I have already mentioned earlier in my evidence today that Mr Hampton said that he was in daily discussion with ministerial officers from Immigration and Foreign Affairs, and Attorney-General's, I think. Senator FAULKNER-What about the Prime Minister's office? Mr Humphreys-I am not sure. Senator FAULKNER-He did not say that? Mr Humphreys-He did not say that specifically. Senator FAULKNER-He did not mention the Prime Minister's office or the Prime Minister? Mr Humphreys-No. Senator FAULKNER-So he said he was in daily contact with other ministerial officers? Mr Humphreys-I do not recall him specifically mentioning the Prime Minister's office. Senator FAULKNER-I hear that. But you said he is in contact with other ministerial officers. Mr Humphreys-Yes, that is right. Senator FAULKNER-Did this view in relation to nothing being done to humanise or per- sonalise the refugees reflect the view of the officers of other ministers as well? Mr Humphreys-I think I have already answered that question directly-that the issue was not raised. It was not discussed whether or not that reflected other ministerial officers' views. Senator FAULKNER-How does PACC treat this from a professional standpoint? Here we are now being told in terms of the media management of this: `Concentrate on promoting the ADF personnel.' That is perfectly reasonable in my view- Mr Humphreys-On photographing ADF personnel in their day-to-day activities. Senator FAULKNER-That is pretty reasonable, isn't it, Mr Humphreys? Mr Humphreys-Yes, that is right. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1155 Senator FAULKNER-I certainly think it is; I think that is a good idea. But from a professional standpoint, did PACC have concerns about what you had been told by Reith's office-that they did not want anything done which would humanise or personalise the refugees? Did you have concerns about that? Mr Humphreys-I think the best way to answer that question is that my concerns or my views do not really matter here. The fact is that we were given very clear instructions and directions and we set about meeting those. I can say that as an organisation we have since looked at the way we handled Op Relex. We have looked at the DI(G), we have spoken to our own Defence personnel and we have spoken to the new minister's officers and identified alternative ways of doing things, constantly looking to improve the way we handle information. Senator FAULKNER-Why is it unreasonable for me to ask you a question from a professional standpoint about these sorts of approaches? I am not asking you for a personal opinion; I am asking you for an opinion, wearing your hat as a professional officer, and a senior officer, in the PACC division of Defence. Mr Humphreys-It is true to say that we felt that fundamentally the reliance upon a single individual as the conduit of information, whilst it has some benefits in terms of control and management of information, has downsides which principally outweigh the benefits. These downsides include the perception that the organisation is not being fulsome, the limits that it places on the ability of the organisation to communicate internally about its activities and the limits it places on the organisation's ability to communicate with families and with the Australian community about Defence activities. So, as I said, we then put those concerns-as one would, as a professional officer-to the incoming minister. They were accepted and are reflected in the new DI(G) and in the arrangements for Operation Slipper and the communication of activities in support of the coalition against terrorism. Senator FAULKNER-That is fine. You put those concerns and warnings to the incoming minister, and I accept that. You have told us that they have been adopted; that is good. This committee is dealing with an event that took place with the previous minister and his staff. It is true to say, isn't it, that the warnings, counsel and advice provided by PACC to the former minister were not accepted? Mr Humphreys-Yes. Senator FAULKNER-They were not accepted? Mr Humphreys-No. Senator FAULKNER-It is also true to say that, partly as a result of that advice being not accepted or the general communications strategy and framework that is in place, it was impossible to correct false and misleading information from Defence sources in the public arena during the last federal election campaign. That is fair too, isn't it? Mr Humphreys-I do not think it is fair to say it is impossible to correct. CERTAIN MARITIME INCIDENT CMI 1156 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-It was not corrected. It was impossible to correct unless the minister agreed to it being corrected. Is that a better way of putting it? Mr Humphreys-Yes, the minister needs to agree to the information being clarified. Senator FAULKNER-Therefore, if the minister did not agree to misrepresentations being corrected in the public arena by Defence personnel it would not happen. It could not happen, could it? Mr Humphreys-Under the Op Relex PR plan and guidance provided, the minister's office was responsible for decisions as to information going out and the clarifying statements. Senator FAULKNER-So it could not happen, could it? Mr Humphreys-Not without ministerial direction. Senator FAULKNER-It could not be corrected unless the minister agreed to those corrections or misrepresentations being corrected. Mr Humphreys-That is right. Senator FAULKNER-I know the special deal that was adopted for Operation Relex was against your advice, Mr Humphreys; I know you advised something different. But, in other words, under the procedures that were adopted, contrary to your advice, a regime was put in place where distortions, misrepresentations, lies and downright deceit could be propagated with the Australian public in relation to children overboard and pictures that allegedly represented that and it could never be fixed by anyone in Defence unless the minister approved those corrections being made. That is the way it worked, isn't it? Mr Humphreys-I cannot agree with your extensive editorialising, but basically I will come back to the clarifying statement which is that the minister's office was responsible for clearing of information. Senator FAULKNER-I try not to extensively editorialise and it is right for you to chide me if I ever do that- Senator BRANDIS-Believe me, Senator Faulkner, we enjoy your rhetorical flourishes immensely. Senator FAULKNER-Let me put it really simply: Defence was gagged, wasn't it? Mr Humphreys-The minister was responsible for the release of information about Op Relex. Senator FAULKNER-And it was gagged by the regime that was insisted on by the then minister. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1157 Mr Humphreys-The handling of public information about Op Relex was determined by the minister's office. Senator FAULKNER-From your experience, what was the nature of the contact like between the minister's office and PACC? We have heard a little from Ms McKenry about the, at times, aggressive and confrontationist approach that was taken, particularly by Mr Hampton from the minister's staff. Senator BRANDIS-Unlike your aggressive and confrontationist approach, Senator Faulkner. Senator FAULKNER-You are right to point that out, Senator Brandis: it is very much unlike my approach. What was your experience in relation to the nature of the communications with Hampton? Mr Humphreys-No different to relationships with ministerial advisers that I have had in the last 15 years of both political persuasions. Ministerial media advisers are often where the rubber hits the road and there can be heated discussions. I think that almost comes with the territory, given the deadlines and the pressure that ministerial media advisers operate under. Senator FAULKNER-It seems to be a bit different for the more junior officers in PACC, doesn't it? I hear what you say and I accept that because Ms McKenry has told us that. But she has also told us about the experience of more junior officers in PACC who are basically browbeaten and stood over by people like Hampton. Mr Humphreys-I had no such problems with Mr Hampton. I am aware of the problems that Ms McKenry discussed with you earlier. Senator FAULKNER-I know other senators want to ask you some questions. I am sensi- tive to that and I will, very briefly- Senator BRANDIS-I do not have any questions for Mr Humphreys, and nor does Senator Mason. I am letting you know out of courtesy, so please do not restrict yourself for our sake. Senator FAULKNER-I appreciate that; I thought you might. I want to quickly touch on one final issue and perhaps come back when Senator Bartlett has concluded. Was there a specific public information or communications strategy for the Tampa incident? Mr Humphreys-There was one draft but it was never implemented. Senator FAULKNER-Who drafted that? Mr Humphreys-I did. Senator FAULKNER-In consultation with whom? Mr Humphreys-Again, in consultation with a number of players around Defence. CERTAIN MARITIME INCIDENT CMI 1158 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Was it a similar process to the draft Op Relex communications strategy? Mr Humphreys-That's right. Both of them were developed almost simultaneously, which is why in my earlier evidence there might have been some confusion regarding Tampa versus Relex. We were talking about the last days of August, the first days of September, where both of those were running. We were dealing with Tampa and the imminent arrival of Op Relex. Senator FAULKNER-That is why I am asking you; I was interested in the dates. Could we have a copy of that draft, too. Mr Humphreys-Yes. I am sorry, I can take that one on notice. Senator FAULKNER-Yes, sure. That is what I meant: could you take that on notice. What happened to that? Mr Humphreys-That essentially was based upon Defence taking the lead on public affairs when the lead was put to IDC-the interdepartmental committee-and it too was set aside following that meeting with Mr Hampton. Senator FAULKNER-Were both of these discussed at the same meeting? Mr Humphreys-Essentially we discussed Op Relex at that meeting, but the general way forward is the same in both of those-in other words, strategic-level information provided by ministers, tactical-level information being provided pretty much extensively by uniformed officers. When that strategic position or that proposal was set aside, it had the same effect on the Tampa public affairs plan. Senator FAULKNER-So who was the final decision maker on the Tampa information strategy? Did that go up to the National Security Committee or the secretaries committee? Mr Humphreys-No, it certainly would not have gone outside of Defence. I have to take that on notice as to what eventually happened. I suspect it was overtaken by events and probably, from memory, became largely irrelevant in the context of the larger Op Relex public affairs plan. Senator FAULKNER-If you could take that on notice and the time frames, I would appreciate it. Mr Humphreys-Yes. Senator BARTLETT-I was out of the room for part of that evidence. Were you going to look at providing us with copies of that communications strategy? Mr Humphreys-Yes. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1159 Senator BARTLETT-You said that there were directions, riding instructions or whatever from the minister's office in relation to the portrayal of asylum seekers and other issues. Are they in writing as well? Mr Humphreys-No, that was a general discussion. I should clarify that. The main driving behind the issue of personalising, not humanising, was about identifying UBAs in any way. The position that was put was that the safest way to do that was not to photograph them. Senator BARTLETT-Was that a phone conversation or- Mr Humphreys-That was a face-to-face discussion. Senator BARTLETT-Were details of other SIEV incidents and of some of the other allegations we have heard about-various threats et cetera from some of the other boats- provided to your division? Mr Humphreys-I cannot speak of the division; I can only speak for myself and my branch. Essentially, when the decision was made to go forward on using the strategic communications proposals established by Minister Reith's office, I largely went on to other tasks, so I was not privy to the day-to-day operational public information regarding Operation Relex. Senator BARTLETT-So details like the possible departure of boats from Indonesia in our direction would not have come to you? Mr Humphreys-None of those came across my desk. Senator BARTLETT-Did the follow-up inquiries into the `children overboard' allegations or assertions-when the further clarification et cetera was done and was passed up the chain of command-flow through your office as well? Mr Humphreys-No. Senator BARTLETT-So you are basically out of that loop altogether? Mr Humphreys-Basically. My role is strategic level: I propose directions, we put them forward, I develop higher level strategies. Once the strategic direction is set, I move on to other priorities. You also must realise that we are talking now about the first week of September and then September 11. I was basically not on Op Relex from then on. Senator BARTLETT-And neither you nor your branch has any involvement in Operation Relex activities now? Mr Humphreys-No, I do not. I have a role now in relation to the task force-which is the task force looking at ways to improve public information communications-and, as such, I assist the organisation in answering Op Relex questions from the media, such as the Four Corners questions. CERTAIN MARITIME INCIDENT CMI 1160 SENATE-Select Wednesday, 17 April 2002 Senator BARTLETT-Going a little bit further into that face-to-face discussion you had on the portrayal or identification of asylum seekers-I apologise if I double up on something because I was out of the room for part of it-was that a conversation in the context of a meeting about a broader range of issues? Mr Humphreys-In the broader range of issues relating to Tampa/Relex. Senator BARTLETT-Would you say it was a directive or a request? Mr Humphreys-It was guidance that we accepted as an instruction, which then formed its way, as I have said a couple of times, into formal directives to public affairs staff on the ground. Senator BARTLETT-Would you say it extended predominantly just to, `Don't take photographs of them, because we don't want them to be able to be identified,' or was it broader than that, such as any portrayal or use of information outlining their experiences or their views? Mr Humphreys-The discussion centred around identification. Essentially, I suppose what you are getting at is the concept of manipulating imagery to shape community perceptions. We did not go down that path. Senator BARTLETT-Not so much manipulating imagery but what details you do provide and what details you do not, and whether that is through deliberate omission or they are seen as details that are not relevant to your task of communicating the activities of Defence personnel rather than anything that the asylum seekers may or may not be doing. Is that it? Mr Humphreys-Sorry, can I get the question again. Senator BARTLETT-Information to the public would have focused on what the defence forces were engaged in- Mr Humphreys-Yes. Senator BARTLETT-and that did not include communicating what the asylum seekers story was? Mr Humphreys-No. Senator BARTLETT-Is there any issue to do with identification of Defence personnel and the need to avoid that? Mr Humphreys-There is operational security designed or determined by the services, and I am sure you are aware that in relation to SAS personnel there are requirements not to identify them. It depends on the op sec requirements at the time. They varied particularly after September 11: on some occasions you were able to identify, for instance, naval officers and you could not identify Air Force officers. It just depended upon the particular operational security requirements at the time. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1161 Senator BARTLETT-What about in relation to Operation Relex? Mr Humphreys-Off the top of my head, I cannot tell you what the arrangements were in relation to photographing ADF personnel on Operation Relex, other than to say that obviously I am aware of the standing arrangements in relation to SAS personnel. CHAIR-Mr Humphreys, was it ever explained how a humanising photograph would work against or work for a refugee's application for asylum? Mr Humphreys-No. We were basically told that refugees should not be identified and that was an Immigration requirement. I am not across why that was the case. CHAIR-That does not mean that there should not be a photograph in which a refugee does not appear. Mr Humphreys-On the basis of not wanting to identify UBAs, the decision was taken that no photographs whatsoever of refugees or potential asylum seekers were to be taken. CHAIR-What, no distance shots where you could not identify individuals? Mr Humphreys-The guidance was no photographs. CHAIR-No photographs at all? Mr Humphreys-At all. CHAIR-And certainly nothing that would humanise or personalise? Mr Humphreys-No. CHAIR-I think we have finished with you, Mr Humphreys, ahead of time, and a good thing too. Thank you very much to you and Ms McKenry. Proceedings suspended from 3.22 p.m. to 3.32 p.m. CERTAIN MARITIME INCIDENT CMI 1162 SENATE-Select Wednesday, 17 April 2002 CHATTERTON, Commander Piers Sydney Nevill David, Director of Operations-Navy, Department of Defence CHAIR-Welcome, Commander Chatterton. We extend the courtesy for people appearing before us to make an opening statement, if they wish, or some preliminary comments. Cmdr Chatterton-I would like to make comments on two matters that may be of interest to the committee in relation to this matter. CHAIR-This is not a prepared statement; this is a matter of comment? Cmdr Chatterton-Just a matter of comment, yes. CHAIR-Please proceed. Cmdr Chatterton-My comments deal with two matters: firstly, the email that contained the two pictures of the rescue of personnel from the water, what I did with that email and how it passed through my office; and, secondly, what I did when I found out that the two pictures were being used to relate to a different event following the release of those pictures to the media. Firstly, the email of the two pictures was sent to me from Strategic Command Division on 9 October at 11.29. The reason for me getting these pictures is that I am the point of contact for Strategic Command Division inside Navy headquarters at the 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. I looked at this email and saw that it was a good news story of RAN sailors doing a courageous and brave act and that this was a public relations matter. I talked to Mr John Clarke, the public affairs adviser to the Chief of Navy, and he agreed that this was essentially a good news item. He then took it for action. Some time the same day, 9 October before 2.30, he came back to me and told me that a copy of this email that had gone to Maritime Headquarters in Sydney had something wrong with it- they could not open the pictures-and he asked if I had a copy that I could send to him. At the time the copy I had was on the Defence secret network. I knew that Mr Clarke was not on the secret network, so I could not simply forward it to him. So I took a closer look at the email to check that it had nothing of a classified nature-for example, capability of ships or the Defence Force in any way, shape or form-or positional data to give away where ships were at a previous time. I determined that it was an unclassified good news story. It was liable to go into the media. I copied it from the Defence secret network over to the Defence restricted network and then forwarded it to Mr Clarke. As he had the pictures and the emails and the captions, he was then going to use them as he required to send on to his organisation. That was basically my involvement in the receiving and forwarding of the original email with the two pictures. Secondly, I want to speak about what I did when I found out that these two pictures had been used in media reports to portray a different event. On 10 October I saw on the TV the then Minister for Defence, Minister Reith, using pictures in a radio interview, and the voiceover of the interview was that children had been thrown over the side of a vessel and that here was the CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1163 evidence. But the pictures I recognised were the ones that had been originally sent as a good news story. On 10 October, when at work I contacted Mr Clarke to let him know that I believed there had been a mistake made, that these pictures were being used to relate to a different event. Also, on 11 October I passed this information on to Steffan King. He is the Australian Defence Force Li- aison Officer in the Department of the Prime Minister and Cabinet. As he has a liaison role, I used to see him every day. I passed the information on to those two people-one on the PA side and the Australian Defence Force Liaison Officer. Because that had gone up the chain of com- mand, I then left that issue and moved on to other matters within my field of works. CHAIR-Thank you very much, Commander Chatterton, for that reasonably full and direct summary of those two events. We will rest the throat muscles of Senator Faulkner for a moment. Please proceed, Senator Bartlett. Senator BARTLETT-Can you just clarify for me your broader role? You say that you are the contact point for Maritime Command; is that right? Cmdr Chatterton-My role is the Director of Operations. I brief the Chief of Navy on the day-to-day operations of all ADF units, so I have quite extensive liaison with Maritime Headquarters, the Strategic Command Division and any other authority that I might get operational or tactical level information about, which I then might disseminate to the Chief of Navy so that he can carry out his role as the strategic head of the Navy. Senator BARTLETT-So would you get information about all the range of incidents on the SIEVs and the various interceptions that occurred? Cmdr Chatterton-Yes, I would. Senator BARTLETT-And you would then make an assessment of what is worth passing on to the Chief of Navy? Cmdr Chatterton-That is correct. Senator BARTLETT-I presume you are aware of some of the other allegations and incidents of threatening conduct and the like on some of the other vessels, apart from SIEV4, that have come out during this inquiry. Were you made aware of some of those, as other threats to children et cetera that we have been focusing on? Cmdr Chatterton-Yes, I have seen that. Throughout all SIEVs I have noted the increasing level of violence and the other threats made in relation to our sailors and people on board the SIEVs as well. Senator BARTLETT-So would you have passed on reports of those sorts of incidents to the Chief of Navy? CERTAIN MARITIME INCIDENT CMI 1164 SENATE-Select Wednesday, 17 April 2002 Cmdr Chatterton-I would have passed on in the early times of the SIEVs the significant changes in the increase in the level of violence, particularly if it involved any possible threat to RAN sailors or units. Senator BARTLETT-How does the flow of information work? We heard earlier from Ad- miral Smith on the oversight of Operation Relex that the information would flow to him. How does information pass to you? What channels does it go through? Cmdr Chatterton-It mainly comes through emails, signals and cablegrams from various sources-usually through Strategic Command Division or through Maritime Headquarters-to me, where I sift through all the information to find out if there is anything noteworthy to inform the Chief of Navy of. Senator BARTLETT-So it would usually come to you after it had gone to people like Admiral Smith, rather than the other way round? Cmdr Chatterton-Usually, yes. There would be a time delay in getting information from ships through the communications centres, Maritime Headquarters to Canberra. In Canberra, we work a basic eight to five day, so there may be information that comes in overnight that I would not see until the following morning. Maritime Headquarters runs on a 24-hour basis. Senator BARTLETT-Would you only get information in relation to activities of the Navy? I am thinking of some of the Orion aircraft, for example, that were doing surveillance work that was part of Operation Relex but, as I understand it, they were not Navy personnel. Would you be informed about anything they were doing as well? Cmdr Chatterton-I would get the broad results of their surveillance effort. Senator BARTLETT-Would you be made aware then if there was anticipation of boats departing Indonesia to come to Australia? Cmdr Chatterton-In addition to the emails and signals, I am also a user of intelligence that comes from various intelligence agencies, and that might contain information of a classified nature that would indicate possible departures of vessels. Senator BARTLETT-Were you notified of instances like that? Cmdr Chatterton-I would find out that information from the information that I had available to me, yes. Senator BARTLETT-Were you notified in any way about the fate of the vessel that did not get a number because it sank before it was intercepted? You would be aware of that one which had significant loss of life. Cmdr Chatterton-I only found out about that vessel after the Indonesian fishermen had picked up the few people that had survived and had returned to an Indonesian port. I did not hear that there was a vessel that had specifically sailed from a specific port at a specific time. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1165 Senator BARTLETT-Where did that information come from? Cmdr Chatterton-That the people had been picked up? Senator BARTLETT-Yes. Cmdr Chatterton-I think that the first time I saw that was in the media. Senator BARTLETT-So you would not normally get information from Search and Rescue or Coastwatch? Cmdr Chatterton-Not directly to me, no. There would be no reason for me to have that. I am in the strategic level and Search and Rescue matters would go more properly to the operational part of the organisation so that they can deal with it directly-on a 24-hour basis. Senator BARTLETT-Are you aware of any reports that were done, after the event, into the particular incident of the vessel that sank? Cmdr Chatterton-I remember that, after it, I was asked where the nearest Navy ship was and I knew that there was one ship in the vicinity of Christmas Island. I found out from Maritime Headquarters that-I cannot remember the exact figure-it was something along the lines of 164 miles at least from the position. Looking at the chart and the way the seabed is there, a grossly overloaded vessel would have gone out into the Sunda Strait and, as it reached the main water mass, as the water comes up from the Indian Ocean, it probably would have sunk around that area-being overloaded. That was well inside the Indonesian area, so I would not have expected one of our ships to be in that area anyway, and I knew that our ship was actually patrolling around the Christmas Island area. So it was just a matter of working out how far away it was. Senator BARTLETT-And you are not aware of any specific report or investigation that was done by any Australian authorities into the circumstances surrounding that incident? Cmdr Chatterton-No, there is no specific item that I know of. Senator FAULKNER-Commander, in your opening statement you mentioned that there were two primary involvements that you had in the matters being examined by this committee. Is that right? Cmdr Chatterton-That is correct. Senator FAULKNER-The second of those was contact with an officer, I assume, seconded to the Department of Prime Minister and Cabinet. Could you just indicate to me what the background is there? I assume that there are Defence officers in the International Division of Prime Minister and Cabinet. I do not know whether you have this background, but could you indicate the nature of the contact you had with that officer and why you thought it appropriate to make contact with that officer on the matters that had come to your attention? CERTAIN MARITIME INCIDENT CMI 1166 SENATE-Select Wednesday, 17 April 2002 Cmdr Chatterton-The officer involved at the time was Commander Steffan King. I am not sure exactly of which part of Prime Minister and Cabinet he is placed within. He is the ADF liaison officer, and there is one commander level- Senator FAULKNER-I think, traditionally, the ADF liaison people-I have heard this over many years-have been in the International Division. That is an assumption on my part, and I do not know, but it probably does not matter. Someone no doubt will tell us if I am wrong. Cmdr Chatterton-As for my relationship with Commander King, he attended a meeting- it is one that we have at that time every day-which involved Operation Slipper, the war against terrorism. Because he is not in the mainstream of Defence whilst he is over at Prime Minister and Cabinet, if I had an item that I believed he should know about as perhaps being of importance, I would relate that to him either before or after the meeting. In this case, on 11 October-he was away on the 10th; the meeting occurred every day and it was unusual for us not to attend that meeting-I informed him, as we were going to the meeting, that the two pictures I had seen the previous day in the media portraying that children had been thrown overboard were not of that event but were of the sinking event that happened on the 8th. 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 liaison officer. That is why I gave him that information. Senator FAULKNER-Going back a step, you indicated that you were aware that the photographs were not of the depicted event; that is, they were of the sinking of the SIEV, as opposed to children being thrown overboard. Was that awareness basically as a result of the captions that were with the photographs? Cmdr Chatterton-Exactly. The email that I received was very plainly a good news story. The talk of Able Seaman Boatswain's Mate Whittle and Leading Seaman Cook Barker clearly indicated that they were doing something out of the ordinary. This was a good news story and it clearly related to the sinking of the vessel. It was quite obvious, when I saw them being used otherwise, that they were being used incorrectly. Senator FAULKNER-It is quite interesting because, with the captions available to you, you have said that it was quite obvious. It does not require an enormous sort of deductive effort. If you have the captions available with the photos, coming to a conclusion that the photos cannot depict children thrown overboard is not that difficult, is it? You have had this experience and so you are someone I think I can ask this of-being, hopefully, a pretty objective observer placed in that position. Cmdr Chatterton-Absolutely. I received the email, read the words on it and opened the two photographs, and it was obvious that these were two sailors involved in a rescue situation. Senator FAULKNER-You passed this information on to Commander King, who is seconded to the Department of the Prime Minister and Cabinet. Again, going back one step, is there anyone else that you passed that on to? Cmdr Chatterton-I passed it on to Mr John Clarke, who is the public affairs adviser to the Chief of Navy. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1167 Senator FAULKNER-Only to Mr Clarke and Mr King? Cmdr Chatterton-I passed it on to Mr Clarke who was, as the public affairs adviser, deeply involved in this because it was a public affairs matter. He informed me essentially that the situation was known about, or that it had certainly been communicated up the chain of command. So to my mind, having worked within the chain of command, action would be taken as required by senior people, as they saw fit. Senator FAULKNER-In your professional role, your Defence role as Director of Operations-Navy, would you see it as being standard operating procedure for you to pass such information on to Steffan King? I am not suggesting it is not but I think it is probably important for the record. We have heard from you about your regular contact with Commander King as you go about your daily duties. You make an assessment of what information you might pass on to that officer. Is that a role for Director of Operations-Navy? Cmdr Chatterton-Yes, it is. A lot of my role is liaising with the likes of Commander King and many other people to get an interaction going so that I can find out what is happening out in other departments and in other operational commands-not only in Navy but also in Army and Air Force-so I can build a whole picture of what is happening and put any strategic concerns that I have to the Chief of Navy so he can build the whole picture. I believe that, as the Defence Liaison Officer, he would be an appropriate person for me to talk to and to liaise that sort of information to. Senator FAULKNER-So you have got the authority to pass such a matter on and you have to make, if you like, a professional judgment call on a case-by-case basis on what matters you would pass on to whatever other officers might be in a position to be able to benefit from that advice. Is that how it works? Cmdr Chatterton-Yes, that is correct. Senator FAULKNER-Okay. What actually prompted you to pass this information on to Commander King? Why did you think, in this instance, it was important he knew about the information that was available to you? Cmdr Chatterton-Because, essentially, a mistake or an error had been made and the way I have always worked at sea is that, if there is something broke, you fix it. In this case an error had been made, or something had gone wrong where information was not being correctly used, so somebody needed to be informed so they could take appropriate action to either correct it or do whatever they are required to do at that level. Senator FAULKNER-Was this the standard way of you passing on such information to Commander King? I imagine these issues come up from time to time-perhaps not as publicly or politically sensitive as this one, but there would no doubt be any number of matters you might have to raise with Commander King. The way you passed this information on to Commander King-would that be just standard operating procedure, the normal process? Cmdr Chatterton-Yes, it would. At that time we were having daily meetings to discuss other matters. During those meetings we would discuss what was generally happening within CERTAIN MARITIME INCIDENT CMI 1168 SENATE-Select Wednesday, 17 April 2002 the Navy and if I felt that there was anything that he needed to know. So it would be standard practice. If I had not been attending the meetings then I would have liaised with him probably by email but, as it was, I would meet him at that time on a daily basis. Senator FAULKNER-How long does your communication with the commander take? Cmdr Chatterton-It will vary. Senator FAULKNER-Sorry, I mean in this instance. Cmdr Chatterton-Probably one or two minutes. Senator FAULKNER-So what do you make clear to him? Cmdr Chatterton-That the pictures I saw on media reports that showed children being thrown over the side were not of that event, that the pictures were of the rescue the following day, and that somewhere some wires had been crossed and these pictures were being used incorrectly. That would have been the general thrust of the conversation. He acknowledged that-he went, `Ah, okay.' Senator FAULKNER-That is what I was going to ask you. Did you get any response that indicated to you that Commander King had taken this on board? Cmdr Chatterton-Yes. This was some time ago. From what I recall, he asked me a couple of questions and it certainly confirmed in my mind that he knew that the pictures that were being used in the media quite extensively at that time-I think one of them was on the front page; they were all over the place-were the wrong pictures. Senator FAULKNER-This may be difficult for you to answer, given the effluxion of time, but did you get any impression as to whether Commander King had had any prior knowledge of this matter, or was this basically new information for him? Cmdr Chatterton-I gathered that this was the first time he had heard that. Yes, it was the first time he had heard that. Senator FAULKNER-In passing that on to Commander King, did you have any expectation about what he might do with the benefit of that information? Cmdr Chatterton-I had no idea as to how his role fit in with his then department. I would expect Commander King to have made his own decision on what to do with that information and to either pass it on or act on it as he saw fit. Senator FAULKNER-Do you ever follow up with Commander King whether he had been able to pass this information on in his role as Defence liaison? `Defence liaison' may not be the correct description. Do you know if he is called the Defence Liaison Officer? Cmdr Chatterton-As far as I know he was the Defence Liaison Officer. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1169 Senator FAULKNER-Did you ever get any feedback from the commander as to whether he had followed through with that information? Cmdr Chatterton-I believe he may have done. I would have to refer to Commander King on that one. Senator FAULKNER-But you did not have any further discussions with him about it? Cmdr Chatterton-Not about that specific matter. We would have then moved on to other things as appropriate. Senator FAULKNER-In any future conversation after that date, did you canvass that issue with Commander King? Cmdr Chatterton-No. Senator FAULKNER-I think it is fair to say that, as far as you are concerned, there was no follow-up. But what you cannot say to us is what Commander King may or may not have done with that information once it had been made available to him. Cmdr Chatterton-That is correct. Senator FAULKNER-Did you have any expectations in relation to the outcome? Having provided this information, did you have any expectation as to what might have occurred, given Commander King's Defence liaison role in PM&C? Cmdr Chatterton-I think the main part of that would be that I would have expected- through Mr Clarke, as the Public Affairs Adviser; through that public affairs chain-the story to be corrected or the photographs to be used for their correct purpose. That did not occur. I knew that it had gone to the various people I had told and that action was going to be taken by members higher up in the command chain; so I left it at that. Senator FAULKNER-It was Commander King who had some discussions that have been variously described as tearoom gossip and other descriptions-I do not know whether that is fair or unfair and I am making no comment about that. I have canvassed it with at least one other witness at this committee in some detail. Were you aware that that so-called tearoom gossip that has received some notoriety emanated from Command King? Cmdr Chatterton-I have heard of that. Senator FAULKNER-It is in the public arena. You have only heard of it? Cmdr Chatterton-I have heard of it. I would have to talk to Commander King to get his side of the story. Senator FAULKNER-Sure. I make no judgment about that because we have not had an opportunity to speak to Commander King either. Were you aware of the fact that some officials, CERTAIN MARITIME INCIDENT CMI 1170 SENATE-Select Wednesday, 17 April 2002 that this information had been passed on to, described it as tearoom gossip? You were aware of that background? Cmdr Chatterton-I heard of the tearoom gossip comment. However, I would not know any more than that. Senator FAULKNER-But you know that Commander King was one of the principals involved in the tearoom gossip; were you aware of that? Cmdr Chatterton-Yes, Senator. Senator FAULKNER-You passed this information on to Commander King because you think it is important that he knows. Is that right? Cmdr Chatterton-That is correct. Senator FAULKNER-In passing it on to Commander King you would do so with the expectation he would act on it and act on it appropriately? Cmdr Chatterton-As he saw fit, yes. Senator FAULKNER-But not necessarily as a gossip item in the margins of the morning tearoom; would that be right? Cmdr Chatterton-No, I would not have imagined that, to be quite honest. Commander King is a very professional officer who, I would imagine, would not get involved in that. I would imagine he would have done something. Senator FAULKNER-I do not doubt that. As I said, we have not had the advantage of speaking to Commander King and following that through. I hope at some point we might be able to do that. Did you have any expectation, beyond what you have told us, about the outcome of the information being provided to Commander King? Were you satisfied that passing it on to the Defence Liaison Officer was standard operating procedure which was appropriate and, beyond that, you turned your attention to other matters? Cmdr Chatterton-That is correct. At the time there were a lot of other things happening within the Navy and the ADF so I was happy that, having passed that up the command chain within the Navy Headquarters and to the Defence Liaison Officer, appropriate action would be taken so I had to leave that at that time. Senator FAULKNER-I think you are right not to speculate too much about what Com- mander King-or for that matter anyone else-may or may not have done with information made available to them but what you can talk about is what you do. Are you able to say to this committee that you believe that you acted correctly and reasonably in passing that information on to Commander King when you did and in the manner that you did? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1171 Cmdr Chatterton-I would confirm that. You already talked about gossip. It was not passed on as a form of gossip; it was passed on because he was the Defence Liaison Officer. I passed it to him as official information, that something was wrong, and that if he needed this information that he should have it to deal with it as he required within his working environment. Senator FAULKNER-Just to be clear: I do not think anyone has suggested that your communication with Commander King has been characterised as gossip. I do not know of anyone suggesting that, but I think there have certainly been numerous exchanges where the Prime Minister, the Secretary to the Department of the Prime Minister and Cabinet and other senior officers in the Department of the Prime Minister and Cabinet have described possible exchanges between Commander King and other officers of PM&C as tearoom gossip. I think it important to draw that distinction, and you understand why I draw it. It is a proper distinction to draw, isn't it? I am not suggesting that Commander King was involved with gossip at any level. I am not making that judgment. I do not think one should rush to judgment on any of these sorts of issues. No-one has suggested, that I am aware, that your conversation with him has been so characterised, but you certainly would not characterise it as such? Cmdr Chatterton-Certainly not, no. Senator FAULKNER-That is the point. It is very hard for me, given that you have not received feedback on this, to ask you about Commander King and what occurred-we can ask him or others about that. All I can ask you about is those issues in which you were directly involved, and I think I have done that to my satisfaction. ACTING CHAIR (Senator Brandis)-Thank you, Commander Chatterton. CERTAIN MARITIME INCIDENT CMI 1172 SENATE-Select Wednesday, 17 April 2002 [4.07 p.m.] BLOOMFIELD, Mr Tim, Director, Media Liaison, Department of Defence ACTING CHAIR-Welcome, Mr Bloomfield. Would you like to make an opening statement? Mr Bloomfield-No. Senator FAULKNER-It is Commander Bloomfield, isn't it? Mr Bloomfield-No, it is not, Senator. Senator FAULKNER-It used to be? Mr Bloomfield-It used to be. Senator FAULKNER-The committee has received a submission from the press gallery in this building. I do not know if you have had an opportunity to read that, but I would like to ask you whether you have seen the press gallery submission which has been made public to this committee. Mr Bloomfield-Yes, I have seen that submission. Senator FAULKNER-It says, in part: There was a single response from Mr Tim Bloomfield, at the Public Affairs and Corporate Communications Division of the Defence Department, stating that all the matters raised should be directed to Mr Reith. I do not know if you recall reading that. Mr Bloomfield-I did read that. Senator FAULKNER-That is a pretty fair summation of what occurred in relation to matters relating to the incident that this committee is examining that were raised by media during the election campaign, isn't it? Mr Bloomfield-With Operation Relex, it was to be referred to the minister's office as opposed to `Mr Reith'. That was the only difference. Senator FAULKNER-To the minister's office? Mr Bloomfield-To the minister's office. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1173 Senator FAULKNER-You make, I think, a proper distinction: as opposed to `all the matters raised should be directed to Mr Reith', you would say, `All matters raised should be directed to Mr Reith's office.' Mr Bloomfield-That is correct, yes. Senator FAULKNER-From your perspective, Mr Bloomfield, when was that instruction instituted? Mr Bloomfield-We were given absolute direction that all matters in relation to Operation Relex were a matter for the minister's office. The reason I was given for this was that Relex was an all-of-government operation. It did not just involve Defence, and as such Mr Hampton was the nominated spokesman for the operation. Senator FAULKNER-From the time the Tampa issue blew up in the public arena until election day-from late August, if you like, to 10 November 2001-how many times do you reckon that you or your staff gave this single line response to media on matters raised with your division? Mr Bloomfield-Certainly daily, but we would receive in excess of 10 to 15 inquiries from various segments of the media during a day and that line was given. We would also provide the phone number of Mr Hampton for them to contact. Where I was able I would also advise Mr Hampton of any issue that I felt he may not be aware of that was coming through with those inquiries. Senator FAULKNER-So you at least provided a phone number for the minister's press secretary. Mr Bloomfield-Absolutely. Senator FAULKNER-This was a pretty new experience for you, wasn't it? It did not operate outside Relex effectively, did it? Mr Bloomfield-It was a growing tendency from the minister's office to have more and more of the inquiries on a range of subjects to be directed to the minister's office for response. Relex was one. It depended on the issues, but we had a list of issues in the office at the time for which all comment had to go through to the minister's office. It did depend on what the issue was. If it was a departmental issue we would generally make a response ourselves. The moment an issue involved a minister, it became for us a ministerial issue. Therefore, it was not proper for us to make comment on that. If the Prime Minister or the minister had made comment on an issue, it was not for us to provide comment after that. It was a matter that must be referred back to the minister's office, and that is what we did. Senator FAULKNER-Could you provide the committee with a copy of that list of issues? That might be helpful for us. Mr Bloomfield-Yes, I can. CERTAIN MARITIME INCIDENT CMI 1174 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Attached to the press gallery submission is an example of a fax signed by you under Department of Defence banner, Public Affairs and Corporate Communica- tions Division. This one is to a journalist from the Sydney Morning Herald. As I say, it is at- tached to the press gallery submission. It says this after the fax header: Thankyou for your Fax received on 9 November 2001, addressed to various senior Defence officials requesting response to a series of questions in relation to the interception of potential illegal immigrants on 7 October 2001. I am not in a position to release the information requested. As you would be aware, this is a whole of government issue. In view of the foregoing you may wish to direct your inquiries to the Minister for Defence. Yours aye, Tim Bloomfield. How many faxes like that would you have sent out? Mr Bloomfield-I sent a group of faxes that particular day to about seven journalists who had sent in submissions. It was only on that day that I sent that fax. Senator FAULKNER-So normally you did not make this communication by fax. That is what I am trying to understand. Mr Bloomfield-No, this was in response to written submissions or requests. Senator FAULKNER-If you received a request for written information, you tended to give a response in writing. Is that how it worked? Mr Bloomfield-Yes. Senator FAULKNER-Most of your requests would be telephonic, wouldn't they? Mr Bloomfield-The vast majority of our requests are by telephone. Senator FAULKNER-The vast majority are by telephone and some are in writing or by fax-and if they were in writing they would probably come by fax. Is there any other way you would receive a request? Mr Bloomfield-No. They are generally all by phone or by fax. Senator FAULKNER-Can I ask you for a professional judgment here. I want to quote to you again from the Press Gallery submission to this inquiry. It states: Had the campaign of censorship and misinformation not begun- months beforehand, at the time of Tampa- then the truth of the children overboard affair would have been revealed much earlier and the CDF himself would have been forced to find out the facts before causing such fundamental damage to his own command. I do not know, if you have read the submission, whether you recall that part of it? Mr Bloomfield-I do recall it. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1175 Senator FAULKNER-Do you agree that the limitation of information flow that was imposed by Mr Reith's office can be properly described as a `campaign of censorship', as the gallery submission describes? Do you think that is fair? Mr Bloomfield-Under the meaning of what censorship is then yes, it would be a form of censorship. Senator FAULKNER-We have got working journalists developing this submission for this committee. One hopes they would have some intimate knowledge of the way the information flows work-it depends on the nature of the press coverage I get as to whether I am going to be that generous on any given day as to say so. Would you accept the view expressed that I have read to you from the journalists' submission that the `children overboard' lie would have been exposed much earlier if the so-called `campaign of censorship', as described, was not in place? Mr Bloomfield-Had Defence been responsible for making the comment through to the media, most definitely the misinformation would have been terminated immediately. Senator FAULKNER-Were you personally frustrated by this? You are really at the coalface in this, aren't you? You are the unfortunate officer who happens to receive a lot of the telephone calls, has to basically say no to the media on a pretty regular basis as a result of the DI(G) that was put in place in August last year. Do you think it badly affected relations between Defence and the press and, as I say, became personally frustrating for you? Mr Bloomfield-Most definitely the level of frustration of the media grew through the whole period to the point where they vented on either me or members of my team on a daily basis when we were unable to provide the information they requested, regardless of whether we knew that information or not. Because of the direction to refer to Mr Hampton on this issue, and some others, yes, there was a level of personal frustration but more that we were concerned about the Defence image with the media as well because this did cause that to deteriorate considerably. Senator FAULKNER-That is your professional judgment? Mr Bloomfield-Yes, it is. Senator FAULKNER-Why do you make that judgment? Mr Bloomfield-I make that judgment because of the articles we saw in the Australian Financial Review by Mr Geoff Barker and Mr Ian McPhedran-we also had articles by Mr Craig Skehan and Mark Forbes-venting their concern at what they termed `censorship' and their frustration with my organisation, my team, because we were not providing them with the information, and at the Public Affairs and Corporate Communication Branch in general because we were not providing the service they expected of a public affairs and corporate communication branch. Senator FAULKNER-You are saying to me that you believe that that anger and frustration was justified in that instance? Mr Bloomfield-Yes, it was. CERTAIN MARITIME INCIDENT CMI 1176 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Did you, in those circumstances, report your concerns to your superiors? Mr Bloomfield-I did. I also discussed it with Mr Hampton and said that we were copping a lot of flack from the media on this. From my own organisation it was very clear there was a strategy on Operation Relex-all information was to be run by the minister. There were some minor issues that I suggested we could respond to but Mr Hampton advised that no, this was an all-of-government issue and I must refer all issues through to him, and we continued to do that. Senator FAULKNER-Relations between you and Mr Hampton were not, from what I have read, that crash hot, were they? Mr Bloomfield-No, I disagree with that. He was exceptionally busy in the minister's office. He was coming to grips with a new organisation that he was relatively new in. Defence is not a small organisation; it is huge. He had to come to grips with a lot of that. We did our utmost to assist him to come to grips with that. These were decisions that were taken; whether they were taken by Mr Hampton or the minister's office, the fact is they were taken, and we responded to that and kept ourselves along those lines accordingly. Senator FAULKNER-I have never met Mr Hampton, but from what we hear from other witnesses he is pretty hard to get on with. Mr Bloomfield-He gets frustrated quickly; I guess so do I at times. He certainly vents his frustration at times if he is unable to achieve in a reasonable time frame information that he requires. Because we in the Media Liaison organisation are supposed to be the primary point of contact for Mr Hampton he would come to us to try to seek information. If we were unable to provide it, yes he would vent his concerns at my people. I did have to intervene on a couple of occasions where a couple of my staff were getting a bit upset about it. Senator FAULKNER-This is because of his abusive phone calls? Mr Bloomfield-I do not think I would call them abusive. Senator FAULKNER-Fair enough; that is my terminology. You describe them in words that you are comfortable with. Mr Bloomfield-He would get angry. But I do not think he was disrespectful to any member of my team. Senator FAULKNER-But you had to intervene. Did you make the decision to intervene? Mr Bloomfield-Yes, I did. My team was getting upset because it was no fault of theirs that we were unable to provide the information. That was the issue. Senator FAULKNER-Were these more junior officers in your- CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1177 Mr Bloomfield-They were part of my team-the public affairs officers on my team who work through me. Senator FAULKNER-What was the nature of the contact they had with Mr Hampton? Mr Bloomfield-All of us in my office had contact, depending on the subject-whether it was a Navy issue, an Army issue, an Air Force issue-or who picked up the phone. We had a particular phone in the office that was the only phone Ross would ring in on and that phone was set aside so that we knew if that phone rang it was coming from the minister's office. We knew there was a priority on that and we could act accordingly. Senator FAULKNER-He had his own special phone into your organisation? Mr Bloomfield-We did that because invariably it is a very busy office-we receive in excess of 30 to 40 media inquiries a day with the corresponding number of phone inquiries. Rather than have him receive the recorded message, particularly if the minister needed information quickly, we thought this was the best way to achieve a quick response so we established the phone in the office. Either Mr Hampton or the media advisers to the parliamentary secretary and Minister Scott could come in on it. Senator FAULKNER-How often would that be used by Mr Hampton? Mr Bloomfield-Depending on the day, sometimes up to 10 to 15 times. Senator FAULKNER-And he always received priority? Mr Bloomfield-Absolutely. Senator FAULKNER-Given that you put on a special telephone for him-a special telephone for the minister's media adviser- Mr Bloomfield-It was a phone that was in the office already, at a desk that was not being used. Senator FAULKNER-But it was dedicated to him. Mr Bloomfield-Yes, we did not give the number out to any others. Senator FAULKNER-Yes, so he had a dedicated telephone line into your organisation and even then you had to intervene on a couple of occasions because of the nature of his communications with members of your staff. Mr Bloomfield-The reason it was getting a bit turgid with those members was that they were unable to provide the information that he required in a tight time frame. If they did not have the information in 10 minutes, he would be back on the phone again to find out where the information was. He was obviously getting considerable pressure at his end to get that response. CERTAIN MARITIME INCIDENT CMI 1178 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Would you agree with Mr Michael O'Connor from the Australian Defence Association who described in the Australian Financial Review the new Defence Instruction (General) as `obnoxious', or do you think that that is going too far? This is the one that was in place in August last year. Mr Bloomfield-I think that is going too far. Defence was having a lot of problems at the time. I think that just about everyone in Defence was a Defence spokesperson at some stage. Every day you would read something in the paper or hear it on the news somewhere; something had to be done to tighten that up and guidelines were put in place to tighten that up. It was also for the benefit of my team in that we needed to be aware of what was occurring. We would have the media ringing on an issue that we knew absolutely nothing about that had come in from left field somewhere in Defence. So certainly I had problems with the guidelines, but I would not say that they were obnoxious. Senator FAULKNER-In the Parliamentary Press Gallery Committee's submission they say: ... defence media liaison and the public affairs apparatus of the Department of Immigration bowed to political pressure to spread government falsehoods or stonewall media inquiries. You have a pretty substantial budget, haven't you? Last time I checked I think it was over $7 million. Mr Bloomfield-Unfortunately Media Liaison does not have that budget. That budget is for Public Affairs and Corporate Communication. Senator FAULKNER-Yes, it is for Public Affairs. I do not know what Media Liaison's budget is but PACC's is about $7½ million, is it not? Mr Bloomfield-Yes, but you have to understand what that budget covers and that is not something that I can appropriately comment on. Senator FAULKNER-PACC in Defence has a substantial budget. What is the point of spending one red cent when you cannot actually say anything at all? Isn't that the position you are placed in? Mr Bloomfield-We are also used for research and gathering information. In this instance Mr Hampton was the spokesman. Senator FAULKNER-Yes, but what is happening is that the government is funding this outfit-it is not your fault; I am not blaming you-and then completely restricting what you are able to say and do. That is what happened, isn't it? Mr Bloomfield-Yes, it is, under the terms of prescription 08-1 of the DI(G) of 8 August. Senator FAULKNER-We heard from Mr Humphreys a few minutes ago about some of his interactions with Mr Hampton and other members of former Minister Reith's staff. I just want to be clear about a technical issue here and I hope you can help me; I think you are the right CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1179 witness to ask. Is it true that there are ways of photographing or videoing refugees which do not identify them? It might be photographs from a reasonable distance or positioning or pixelating faces or whatever. Is it possible to photograph or video refugees, not identify them-using those or other mechanisms-but actually still humanise them? Mr Bloomfield-It is quite possible to photograph by pixelating to avoid identification. Senator FAULKNER-I want to be clear on this. Can you photograph or video refugees on SIEVs, or who have come from SIEVs? Are there ways of photographing or videoing those refugees that do not identify them but still does not dehumanise them? Mr Bloomfield-Yes, there are. From a distance, it is fine. Senator FAULKNER-That is an example isn't it-from a distance? Mr Bloomfield-Yes. Senator FAULKNER-Or using a particular positioning would be another way, wouldn't it? Mr Bloomfield-Yes. Senator FAULKNER-Pixelating the photographs might be another way, might it not? Mr Bloomfield-Yes. Senator FAULKNER-So it certainly is possible? Mr Bloomfield-Absolutely, yes. Senator FAULKNER-The government's restrictions of course went much further than that, didn't they, in relation to photos and videos and the like? I think I am right in this, but I would like to hear it from you; is it true that the government's restrictions, when applied to photographs and videos, meant that there could be no photographs or videos taken without ministerial permission? Mr Bloomfield-We were given direction that we were not to deploy, through MARPAC, photographers or public affairs officers to Operation Relex to the point where at the very beginning we had sent a military public affairs officer to Christmas Island for the Tampa and we were directed to return her immediately back to Australia-and we did. Senator FAULKNER-What did that cost you? Mr Bloomfield-It was on military aircraft. Senator FAULKNER-It was not on a special military aircraft? Mr Bloomfield-No, it was not. CERTAIN MARITIME INCIDENT CMI 1180 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-That is good. So there were absolute restrictions placed not only on the media but on Defence public affairs and media liaison as well. Mr Bloomfield-Yes, there were. Senator FAULKNER-There is no way PACC could authorise the videoing or photography of matters or incidents involved in Operation Relex? Mr Bloomfield-To the best of my knowledge-and this is not in my area, this belongs to the digital media area and MARPAC-there were directions that we were not to undertake any filming or photography. Senator FAULKNER-Can you take on notice those directions and ask the relevant part of PACC or your organisation if those directions could be provided? Were you aware of any intention that there was an absolute ministerial ban on images which would humanise or personalise refugees? Mr Bloomfield-I do not know that those words were used. We were just told that we were not to take any photographs of the operation. We did not have photographers there, so that was not an issue for us. Senator FAULKNER-It is not an issue because you could not take any photographs at all, is that what you are saying? Mr Bloomfield-That is right. We did not have a photographer there. Senator FAULKNER-Were you aware of the information that was provided to this committee a short time ago by Mr Humphreys? Were you aware of that background in relation to the way refugees might or may not be depicted? Mr Bloomfield-I was aware of some of it, but not the full extent of it. That was done by the strategy area within Defence and I was not part of that. Senator FAULKNER-How did you become aware of that? Mr Bloomfield-Through discussion with Mr Humphreys and, once we had received the draft strategy, I became aware of some of it through that. Senator FAULKNER-What did he say to you? Mr Bloomfield-It was more to the point of that we are unable to take pictures and we will not be having any imagery or stills photography. Because it was an issue for the minister's office, it was not an issue for the media liaison area. Senator FAULKNER-I do not know whether you heard Mr Humphreys's evidence in relation to the depiction of refugees-and we have used the terminology `humanise' or `personalise'. Were you aware of that background? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1181 Mr Bloomfield-Not that I recall; not in those words. Again, there was to be no imagery or photography. I did not hear the terminologies `humanising' or `personalising' at all. Senator FAULKNER-In relation to the decisions about photography, how is such a restriction put in place? I have asked you to take on notice a copy of the instruction. Is it done by written instruction? Mr Bloomfield-That is something I have to check on. I do not know whether that was written or verbal. Senator FAULKNER-There was a restriction that ensured that all media comment for Operation Relex must come from the office of the Minister for Defence. That is true, isn't it? Mr Bloomfield-That is true. Senator FAULKNER-There was a restriction that there were to be no photographs or videos taken by Defence personnel or anyone else in relation to Operation Relex. That is true, isn't it? Mr Bloomfield-I can only talk for Defence Public Affairs Corporate Communications. I cannot talk for- Senator FAULKNER-Speaking on their behalf, then? Mr Bloomfield-Yes, we had a direction that we were not to take any public affairs photographs. Senator FAULKNER-Were there any other broad directions in relation to restrictions that were applied specifically for Operation Relex that you could share with this committee? Mr Bloomfield-Not to my knowledge, apart from the ones you have mentioned there. Senator FAULKNER-In relation to video and photographic material, having received the instruction-which is one issue and you are going to take that on notice for us, and I appreciate that-how is it put in place within your organisation? Mr Bloomfield-Again, that does not affect me or my area. I am not sure where the direction came to. That would be an issue for the Military Adviser, Public Affairs and Corporate Com- munications-Brigadier Gary Bornholt, as he was then-and for his team to manage that side of it, and for Mr Rob Care-Wickham, who is our Director of Digital Media. They are responsible for that side of it. In the media room, I have no responsibility for imagery or photography. Senator FAULKNER-I am wondering if there are any specific directions in relation to Operation Relex for photographers and cameramen. I think you are saying to us that there are not, because they were not allowed to take any shots at all. CERTAIN MARITIME INCIDENT CMI 1182 SENATE-Select Wednesday, 17 April 2002 Mr Bloomfield-The specific direction would be that they were not to take any shots, but we did not have any photographers there in that period. Senator FAULKNER-You had one goer who had to come back for Tampa. Mr Bloomfield-That was a Public Affairs officer, yes. Senator FAULKNER-Who made the decision to send that person? Mr Bloomfield-The adviser of military public affairs, Brigadier Bornholt. But that would have been in consultation with the operational side and Ms McKenry. Senator FAULKNER-Yes. Brigadier Bornholt, in consultation, made a decision to send a photographer along. Was that a still photographer? Mr Bloomfield-I cannot answer that. I do not know the full detail of that. I know that, as normal planning would dictate, we went to put the resources in place in order that we could properly access good information from the area. We were directed to withdraw those resources. Senator FAULKNER-The photographer goes on Brigadier Bornholt's direction; I hear what you say about that information. Who directs the photographer, `Come straight back again'? Mr Bloomfield-That came from the minister's office-that we were to withdraw them immediately-and that would have gone back through the Military Adviser, Public Affairs. Senator FAULKNER-So it came from the minister's office? Mr Bloomfield-Yes. It came through my office initially and I passed it to Brigadier Bornholt because it was not an issue for my area. Senator FAULKNER-Was it just a telephonic communication from the minister's office? Mr Bloomfield-Yes, it was. Most of the communication with the minister's office between me and Mr Hampton was by telephone. Senator FAULKNER-Was this the instruction from Mr Hampton, too? Mr Bloomfield-Yes, it was. Mr Hampton relayed the message, but I was not aware of the decision making process in the minister's office. Senator FAULKNER-Was that a civil conversation on this occasion with Mr Hampton? Mr Bloomfield-Yes, it was. Senator FAULKNER-Did you debate the issue with him or did you just accept it? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1183 Mr Bloomfield-I left that for Brigadier Bornholt to debate. Senator FAULKNER-You passed the information on to Brigadier Bornholt? Mr Bloomfield-Yes, I did. Senator FAULKNER-Did you get any feedback from the Brigadier about his interface with the minister's office on that issue? Mr Bloomfield-Only the fact that the public affairs officer came back to Australia. Senator FAULKNER-Mr Hampton 1; Brigadier Bornholt nil. Mr Bloomfield-The minister's office was running the strategy for Operation Relex. Senator FAULKNER-Thank you. Senator BRANDIS-Just a couple of things: earlier in your answers to questions from Senator Faulkner you agreed with the proposition put to you that appeared in the Press Gallery's submission that the restriction on the flow of certain information to the media amounted to the censorship of that information, or that is what I understood you to be saying. Is that your position? Mr Bloomfield-I was asked whether I consider that censorship and under the definition of censorship, yes, it is a form of censorship-restriction of information. Senator BRANDIS-I think you already apprehend my point. Censorship is a very loaded and, to some, emotive term. Any restriction of the flow of any information to anyone could be called censorship, couldn't it? Mr Bloomfield-Yes, it could. Senator BRANDIS-I will go on by way of illustration. The refusal of the government to release information, the public disclosure of which would be prejudicial to the national security, is in that sense censorship, isn't it? Mr Bloomfield-Yes, it is. Senator BRANDIS-The refusal of a minister's office to release information, the accuracy of which it is uncertain about, is also in that sense censorship, isn't it? Mr Bloomfield-Yes. Senator BRANDIS-The point I am making to you is that the adoption of that rather emotive term, which suggests some sorts of constraints on freedom of political discussion, in the sense in which it was put to you does not necessarily suggest any such thing. It merely CERTAIN MARITIME INCIDENT CMI 1184 SENATE-Select Wednesday, 17 April 2002 suggests the commonplace proposition that sometimes, for whatever reason, the public disclosure or release of information is limited. Mr Bloomfield-Yes, that is correct. Senator BRANDIS-That is, in your experience particularly-although not exclusively when one is dealing with Defence matters-a most commonplace and necessary thing? Mr Bloomfield-Yes, it is. Senator BRANDIS-Thank you. One other thing: were you in your position aware of the information that was flowing up the military chain of command that ended up on the minister's desk? Mr Bloomfield-I am sorry: at what time? Senator BRANDIS-It is more a generic question. Would you have had at any time an awareness of information flows up the military chain of command which reached the minister's desk? Mr Bloomfield-Was I aware of flows up the military operational chain? No, I was not. Senator BRANDIS-So, for instance, if a decision were made in the minister's office not to release a particular piece of information, and if that decision were based upon certain information flowing up the military chain of command which might have cast doubt upon the accuracy of that piece of information, you would not have been aware of that information flow? Mr Bloomfield-No, not generally. Senator BRANDIS-Indeed, more generally, you would not have been aware of the reasons for a decision not to release or disclose a particular piece of information? Mr Bloomfield-Not in the military operational chain; I am not in that chain. Senator BRANDIS-Thanks, Mr Bloomfield. CHAIR-Just before we release you, Mr Bloomfield, on that last matter, this quite fascinating conceptual discussion about the meaning of the English language word `censorship', my understanding of the meaning of it is that all of the information does not reach the audience because some of the information is withheld. Is that what we are talking about? Mr Bloomfield-Yes, it is. CHAIR-That is what happened here? Mr Bloomfield-Yes, it is. CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1185 CHAIR-I must apologise because I was out of the room when your evidence in chief was taken and this may have been covered: we are now all generally agreed that the photographs that were published that allegedly portrayed children being thrown overboard were of an entirely different time- Mr Bloomfield-Yes. CHAIR-and that the labels on those photographs that identified the correct time had been removed at some point? Mr Bloomfield-At some point, yes. CHAIR-That would be an example of censorship, wouldn't it? Mr Bloomfield-It could be. In this instance I am not sure where they were- CHAIR-I am not saying by whom. Mr Bloomfield-But I do not believe it was deliberate either, so I am a bit concerned about calling it censorship in that regard. CHAIR-I see. The result was a deception. Mr Bloomfield-But not by deliberate deception. CHAIR-I see what you are saying. Do you know that for a fact? Mr Bloomfield-I am reasonably confident, because I thought it was I that sent the photographs to the minister's office, but it was not; it was one of my colleagues in the office, and I understood the captions were with those photographs when they went across. CHAIR-The captions were with the photographs when they went to the minister's office? Mr Bloomfield-I understood that at the time. CHAIR-There appear to be no further questions from anyone so, Mr Bloomfield, thank you very much for your attendance today and for the assistance you have provided to our inquiry. CERTAIN MARITIME INCIDENT CMI 1186 SENATE-Select Wednesday, 17 April 2002 [4.48 p.m.] STACKPOOL, Mr Andrew Michael, Public Affairs Officer, Directorate of Media Liaison, Public Affairs and Corporate Communication, Department of Defence CHAIR-Welcome, Mr Stackpool. Do you have an opening statement or do you wish to make some introductory comments? Mr Stackpool-No, I do not. CHAIR-I am scanning the table to see if any of my colleagues wish to go first for questions. I call Senator Collins. Senator JACINTA COLLINS-Mr Stackpool, some of the evidence that we have received earlier has, in part, eliminated some of the reasons for us calling you here today. One of the remaining questions I have for you relates to your statement in the report that was prepared from your discussions with Ms Bryant's inquiry where you indicated that Mr Clarke sent you the photos `for interest'. Can you explain why Mr Clarke would have sent you the photos for interest? Mr Stackpool-Yes, Senator. We had become aware of the incidents, of course, on Monday, the 8th. On the day in question, the issue for us was the interview given by Commander Norman Banks, the captain of the Adelaide, in which it had been mentioned that there were photographs of people in the water-there were no specific details. During the course of my many phone calls that I had with Mr Clarke on this particular day, he mentioned that they were in receipt of two photographs from the Adelaide showing sailors doing what they do best, which is helping people, protecting our sovereign waters et cetera. My interest at that point was whether we could in any way use these photographs to push a good-news story about Navy in that role. He had advised me at that time that the photos were on the SECRET system and that they could not be so used, and I then forgot about it. Subsequently, during the day, he contacted me and said, `Listen, just for information, I am sending you those photos. We have got them now on the RESTRICTED system and I am sending you them just for your interest.' That was the reason behind it; in other words, it was sent to me as the person on the Navy desk simply as, `We have two photos that you might want to look at.' That was all. Senator JACINTA COLLINS-And it was later that we discovered that they should not have been on the RESTRICTED system. Is that the case? Mr Stackpool-I was advised-I believe on the 10th or the 11th-by Mr Clarke of that, yes. He rang me and said, `Do you still have those photos?' I said, `Yes, I am probably going to dump them, because I am clearing my system.' He said, `Well, we have been directed to get rid of them.' I did so immediately. Senator JACINTA COLLINS-Do you have any understanding about how they had reached the RESTRICTED system? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1187 Mr Stackpool-I understand now that they had been cleared for various reasons by Commander Piers Chatterton. He had provided them to Mr Clarke who had then forwarded them to me and, I believe, some of the strategic communications advisers and others. Senator JACINTA COLLINS-At a restricted level rather than at a secret level? Mr Stackpool-Correct. Senator JACINTA COLLINS-This is correcting an impression that Ms Bryant's record of your interview seems to indicate that there was a strange reason-that it was just for your interest-that you were forwarded them. It was quite a legitimate forwarding of information in relation to an understanding that the photos were now unrestricted? Mr Stackpool-Correct. Senator JACINTA COLLINS-And it was quite a legitimate interest of yours for operational reasons in your role of portraying Defence activity? Mr Stackpool-Correct, yes. The issue that came up, of course, was when he said that they should not have been taken from the SECRET system, which I obviously cannot comment further on. I had a concern that we may have been looking at a security breach-that was all. The photos had been sent for information and, as I understood it, they had been taken to the RESTRICTED system properly. Senator JACINTA COLLINS-Yes, but when we are talking about a security breach here, are we talking about a security breach in the same sense that applies to Ms McKenry's concerns that the misrepresentation not be leaked or that the original photos not be leaked? Mr Stackpool-No, it was a personal concern that information that had been on a SECRET system may have, for whatever reason, found its way onto a RESTRICTED system. That was all. Senator JACINTA COLLINS-And your understanding as to how that occurred was that Commander Chatterton had released them? Mr Stackpool-Correct. Senator JACINTA COLLINS-That concludes my questions. Senator FAULKNER-What were your relations like, Mr Stackpool, with Mr Hampton in former Minister Reith's office? Mr Stackpool-I tried to make those relationships as professional as possible. Quite often Mr Hampton could be a very easygoing, friendly, affable person; at other times, when he was under some stress or when situations were perhaps getting a bit tight, certainly he could become somewhat abrasive. CERTAIN MARITIME INCIDENT CMI 1188 SENATE-Select Wednesday, 17 April 2002 Senator FAULKNER-Was he abrasive with you at times? Mr Stackpool-Yes, he was. Senator FAULKNER-How did you deal with that? Mr Stackpool-On a couple of occasions I had cause to speak to the director when I felt it was a bit over the top, but, as I have reiterated many times, our relationships were extremely cordial. Senator FAULKNER-Were you one of the officers in Defence Media Liaison who actually had to raise with Mr Bloomfield the issue of Mr Hampton's behaviour? Mr Stackpool-I don't recall that I necessarily would have raised it formally, but we had had a talk at times about it, yes. Senator FAULKNER-Give us a feel for what it was like receiving the phone call that caused you to have that conversation with him. Mr Stackpool-It would be demanding. Basically I think that he at times would get quite angry. He could get quite abrasive and say, `I want this information; I need it now; where is all this? Where is it? If you can't get it, who should I speak to to get this information?' Senator FAULKNER-So you felt pressured by that? Mr Stackpool-At times, absolutely. We are a high-pressure environment anyway, dealing with a wide range of requests from media and other sources. Senator FAULKNER-I do not know if you have heard some of the evidence today about some of the restrictions that applied during Operation Relex. I think the committee has a good feel for what those restrictions are, and I have no doubt that you have an intimate knowledge of the way they worked in practice. Would that be fair? Mr Stackpool-I had some knowledge, yes. Senator FAULKNER-Did you at any stage in your responsibilities have direct contact with journalists and others from the media? Mr Stackpool-Yes. We were in contact with journalists every day, including- Senator FAULKNER-I was not sure whether it was part of your personal responsibilities. Mr Stackpool-Yes, it is. Senator FAULKNER-How did you find the task of communicating to journalists that you couldn't help them on any matter in relation to Operation Relex? We have heard from Mr Bloomfield that it was very frustrating. Is that your view too? CERTAIN MARITIME INCIDENT Wednesday, 17 April 2002 SENATE-Select CMI 1189 Mr Stackpool-Yes, it certainly could be, because often there were quite simple questions that would come in. Having come from a Navy background, sometimes I could possibly have answered those questions. I could not give specific examples now, but the policy was perfectly clear: all matters were to be referred to the minister's office-to Mr Hampton-and my under- standing of that is that it was because it was an interdepartmental operation. I understood the policy but, yes, at times it could get frustrating. Senator FAULKNER-Who had the responsibility of answering the dedicated line that Mr Hampton had the number for? Which poor sucker had the job of actually picking the damn thing up when it rang? Mr Stackpool-Basically it would be any person who happened to be free at the time. The phone rang; we knew that it was the minister's office; it needed to be answered urgently- really, anybody who didn't happen to be on the phone at the time. That could be the director or any one of us. Senator FAULKNER-So it was not a designated officer? Mr Stackpool-No, absolutely not. Senator FAULKNER-I wonder, given the nature of Mr Hampton's telephonic manner, whether you decided if it was best if you and Mr Bloomfield dealt with those as opposed to more junior staff. Was any thought given to that? Mr Stackpool-No, not really, not the way our office is built. We have teams of two people. As I have said, the requirement was that we dealt with the phone call as soon as it came in. It is quite possible that the particular officer to whom you wished to speak, particularly the director, might not have been available. Senator FAULKNER-But there was no policy in relation to answering the dedicated phone line for Mr Hampton? Mr Stackpool-No. The phone has gone; it is a priority call; whoever is free gets it. Senator FAULKNER-Is there still a dedicated phone line for the ministerial staff? Mr Stackpool-It is there. It is for all three ministers' staffs. Senator FAULKNER-But it is the same modus operandi now that it has been established? Mr Stackpool-Yes. Senator FAULKNER-But you do not answer it with such trepidation, I suppose, now? Mr Stackpool-I have had dealings with previous media advisers from ministers' staffs. CERTAIN MARITIME INCIDENT CMI 1190 SENATE-Select Wednesday, 17 April 2002 CHAIR-Are there any further questions? Mr Stackpool, you have arrived at the end of your evidence. Thank you very much for making yourself available and attending the inquiry. Committee adjourned at 5.00 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident THURSDAY, 18 APRIL 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BRYANT, Ms Jennifer, Assistant Secretary, Education and Immigration Branch, Department of the Prime Minister and Cabinet ................................................................................................................1256 Thursday, 18 April 2002 SENATE-Select CMI 1191 Committee met at 9.06 a.m. Participants PEEK, Sir Richard, Vice Admiral (Rtd) PODGER, Mr Andrew, Public Service Commissioner, Public Service and Merit Protection Commission SMITH, Associate Professor Hugh, School of Politics, Australian Defence Force Academy TIERNAN, Ms Anne-Maree, Senior Research Assistant, School of Politics, Griffith University UHR, Dr John, Senior Fellow, Political Science Program, Research School of Social Sciences, Australian National University WELLER, Professor Patrick, Deputy Director, Key Centre for Ethics, Law, Justice and Governance, Griffith University CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from the secretariat staff. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 4 p.m. today. Today's hearing will commence with a roundtable discussion. The purpose of the roundtable is to allow the committee to explore matters such as sound practice in public administration, various models of the possible relationships between ministers, advisers, the bureaucracy and the defence forces and so on. We shall attempt to deal as expeditiously as possible with witnesses. I urge witnesses to be concise in their answers and I urge senators to keep their questions highly targeted. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person, and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. CERTAIN MARITIME INCIDENT CMI 1192 SENATE-Select Thursday, 18 April 2002 When witnesses are first called upon to answer a question they should state their names and positions; in fact, we will invite you all to state your names at the beginning. Because we have been taking evidence, essentially, about what happened from witnesses, we have followed the practice of swearing in witnesses up until this point. That is not a practice we propose to adopt for this procedure this morning. Senator BRANDIS-Mr Chairman, may I suggest-I would find this helpful, and perhaps other senators would as well-that when witnesses introduce themselves, they might utter a couple of sentences about their particular fields of expertise. CHAIR-I think that is a very good idea, Senator Brandis. In fact, if I read the next paragraph of my notes, it actually says that. Senator BRANDIS-I am sorry to have anticipated you. CHAIR-This is an appropriate point for me to invite the witnesses to introduce themselves, perhaps starting with Ms Tiernan. Ms TIERNAN-I am in the School of Politics and Public Policy at Griffith University in Brisbane. I am a doctoral research student and a senior research assistant there. I have done quite a bit of work on the topic of ministerial staff and exploring the factors that are driving the continuing growth and evolution of the ministerial staffing system. I am interested in developing a much stronger empirical base to support the causes and consequences of greater reliance by ministers on ministerial staff. The work that I have done that is probably of most interest to the committee or most relevant to the issues here is a chapter that I have written in a book called Motivating ministers to morality, which looked at the role of ministerial staff as problem or solution in assisting ministers to behave ethically in their jobs. That is my expertise. Prof. WELLER-I am a professor of politics at Griffith University. I am also Director of the Centre for Australian Public Sector Management and Deputy Director of the Key Centre for Ethics, Law, Justice and Governance, all of which neatly fit into one another. I spent the last 20 years writing about ministers, senior officials, prime ministers and cabinet and the interchange that goes on between them. Twenty years ago I wrote a book with Michelle Gratton called Can ministers cope? I wrote a study of Malcolm Fraser, and I wrote a biography of John Button. My most recent book is called Australia's mandarins: the frank and the fearless?, which came out last year. It is about that interplay between senior officials, ministers and cabinet both in Australia and comparatively, which has been the subject of my study for the last 20 years. Mr PODGER-I am the Public Service Commissioner. I had also been a secretary of department for about eight years before that and have worked in the public sector for the last 30 years. I was, at one stage, President of the ACT Division of the IPAA. Prof. SMITH-I am an associate professor in the School of Politics, University College, University of New South Wales at the Australian Defence Force Academy. My main field of expertise is the relationship between armed forces and society, broadly defined. It includes topics like personnel issues-such as recruitment, retention, public opinion about the armed CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1193 forces-and, most relevant today, political-military relations. That has been the field that I have taught in, researched in and published in for a good many years. Dr UHR-I am a senior fellow in politics at the Australian National University. I teach ethics and public policy at the ANU. I have written a fair bit on ethics and public service issues. I am a generalist on the area and am attracted to it because it is a matter of increasing concern within the system. CHAIR-I think we should not allow your modesty to overcome the fact that you spent some distinguished service time in the Senate. Dr UHR-As a committee secretary. Sir RICHARD PEEK-I act as an individual. I retired from the RAN in November 1973 after 45 years service in increasingly responsible positions from about 1939. These involved operational requirements, administrative jobs, leadership and strategic matters. As I am sure someone will allege, I recognise that it will be claimed that I am now out of date. I believe, however, that most of my experiences apply today. I place on record that, after 1939, although my professional advice was sometimes challenged by ministers, departmental heads and other bureaucrats and officers of the other two services, I cannot remember ever having it overridden. To put it clearly, I claim I was a professional naval officer. I would like to make one further statement. You will have various public statements I have made. There is another ABC television interview which happened on 3 April for which you do not have the transcript, and neither have I. There is a phrase in it, though, which I would ask to be deleted should you ever have it, for which I wish to apologise to the senator for any hurt that he may feel about it. The phrase, `should be shot,' was a colloquial one from my youth and was inappropriate. I apologise to Senator Brandis. However, I also wonder if the senator would consider apologising to the naval people, particularly to Commander Banks of the HMAS Adelaide and the crew of Adelaide, for the hurt that his adversarial cross-examination style has caused them. Thank you. CHAIR-Thank you. Senator BRANDIS-Mr Chairman, I think it is probably appropriate that I respond to that. Sir Richard, no apology to me from you is necessary. No hurt was caused to me, and your rhetorical gesture was taken in the good-natured spirit in which I am sure it was intended. In relation to what you have asked of me, I think every member of this committee would agree that, like all of the members of the committee, the approach that I have taken in relation to all naval officers, and indeed all witnesses who have appeared before the committee, has been to inquire of them sometimes searchingly. But I have placed on the record several times in the course of this committee's hearings, and on the public record elsewhere-including last Wednesday in the Brisbane Courier-Mail-my very high regard, deep respect and admiration for the professionalism with which the officers and crew of the HMAS Adelaide at all times conducted themselves. Sir RICHARD PEEK-Thank you very much. CERTAIN MARITIME INCIDENT CMI 1194 SENATE-Select Thursday, 18 April 2002 CHAIR-That gets us off to a pulsating start. I have to say, Admiral, that a number of us did hope that you meant it literally rather than figuratively. Senator JACINTA COLLINS-I do not think this is the time for us to have views expressed on our behalf in relation to the senator's style, either. Let us move on to what we are here for. CHAIR-That is indeed the sentiment of the moment. Senator FERGUSON-I would like to hear about the senator's styles. Senator BRANDIS-There are a number. Senator FAULKNER-Or the lack thereof-it would not take long to talk about style, but a lack of style might take the whole morning. CHAIR-This is the problem that I have as soon as humour enters the fray, everyone gets to speak and we lose track of time. We have a fair task ahead of us this morning and we have certainly invited you here to make a serious contribution to our deliberations. We think this is a serious matter. It seems to me that the appropriate way to proceed, now that everyone has been introduced, would be to invite you, in whichever order you select, to say a few words to the questions that we are looking at in this inquiry. I am sure all of you have been given a copy of the terms of reference, and many of you may have followed the debate in the inquiry. The issues that we are interested in were outlined in the letters that we sent. Everyone can speak for themselves as to how they apprehend all of those matters. Who would like to start the ball rolling? Prof. SMITH-I am happy to start. There are a couple of initial points: the term `politicisation of the Defence Force' has been used in various contexts. I am not sure that is the best way to look at it. It has all sorts of connotations, including that military people become partisan in their actions. That may be a concern, but I would see it as a problem of the broader relationship between government and the Defence Force and the maintenance of the conventions and traditions that govern that relationship. As I said in my submission to the committee, I believe those conventions have been broken, or at the least very severely strained, in recent times, and not least during the certain maritime incident episode. Another general comment-and senators may take this amiss-but I do see, in a way, this inquiry as being part of the problem. It is embroiling members of the Defence Force in party political issues and this, I believe, is unfortunate. Certainly the Senate and its committees have every right to put searching questions to members of the Defence Force-and I agree with Senator Brandis that they have been very professional and very excellent in their answers. I think they have come out of this ordeal very well. What I would say, though, is that it is unfortunate to have members of the Defence Force being asked seemingly factual questions but behind those questions there is a political agenda-for example, a desire to show that the behaviour of asylum seekers is part of a wider pattern or that it is not part of a wider pattern of behaviour. I can see why senators pursue these lines. My comment is that it does put members of the military in a difficult situation, knowing that every word, every phrase they use, may be CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1195 taken up and run with for a political purpose. It is not the sort of thing that people join the Defence Force for and I think it creates an unfortunate impression in the wider community. Having said that, let me make a couple of general points also about the political-military re- lationship and stress two ways in which the military are very different from the civilian public service and, indeed, from every other organisation-and I am not referring to their dedication, willingness to risk their lives and all that. Firstly, the military respond to authority; that is their whole system. It depends on people acting with authority so that when a junior officer at a headquarters contacts some person outside those headquarters that officer does so in the name of the commander of the headquarters, acts with the authority of the headquarters. So the person being contacted by that officer assumes that that junior officer has the authority of his or her su- perior. That attitude seems to carry over to the way in which military personnel respond to ap- proaches by, requests from, directions from members of ministerial staffs. Unfortunately, it seems to me, ministerial offices do not work in the same way as military command systems, that staffers do act to some extent on their own initiative. They are not always acting in the name of the minister under the direct orders of the minister, such that if they make a mistake the minister is held directly responsible in the same way that a commander is held responsible for his or her subordinates. Approaches from ministerial staffers do put the military in an extremely difficult position; they are used to accepting orders, accepting directions from the military chain of command. To have this outside body coming in and saying, `Do this, don't do that, give me such information as I require' is very contrary to the military way of doing things, including simple requests for information. The military pass information up the chain where it is synthesised at higher levels. If they pass information out that is liable to be used in all sorts of ways outside the chain of command they are put in a very difficult position-whether they refuse to give the information, in which case they may be offending the minister and the minister's office; or if they give it and then it is used for party political purposes. My second general point is about the military perspective. The military do not whistleblow- if that is that the term. They do it even less than civilian public servants. There is a loyalty to the organisation which is very strong, a natural support for the chain of command and the recognition that information must be kept in the chain of command. On the other hand, the military are accustomed to talking in public about activities within their sphere of responsibility. They are used to the limits that can be put on this: limits of avoiding party political issues, of privacy, of security and so on. Both of those principles seem to have been rather overlooked in recent times. The consequences are twofold. One is that it seems the military can be relied on not to-to use John Uhr's term-speak out publicly. Indeed, the government took particularly strong steps, through Defence Instruction (General) No. 8, to ensure that they did not, and there was specific public information policy regarding SIEV4, or Operation Relex in general, I believe. The second consequence is that military personnel can become extremely discontented about, firstly, the way their story is not told and, secondly, the way that information which they do provide up the chain is or is not used. Certainly, there have been problems in reporting and lack of clarity in who said what to whom. But I can certainly say, from talking to quite a number of military people, that the way in CERTAIN MARITIME INCIDENT CMI 1196 SENATE-Select Thursday, 18 April 2002 which this whole episode ran has caused a lot of unhappiness. Military people have felt used, embroiled in party politics. I am hoping that one of the outcomes of this inquiry can be at least some sense of what conventions and traditions should be observed to ensure that the military do not become embroiled in party politics in one way or another, in one arena or another, including Senate inquiries. Perhaps I had better stop at that point. CHAIR-Thank you, Professor. I think Senator Brandis has a couple of quick questions. We really want to get an opening statement from everybody so that we can all hop in, but it does raise a question, if there are a few things that come up that need some quick comments. Senator BRANDIS-I do not have a couple of quick questions. I was going to engage Professor Smith in a discussion by way of elaboration of two points that he made and I did not want to lose the contemporaneity, as it were, of his remarks. But I think that, in view of the fact that it will open up a substantive discussion, I will defer that, Mr Chairman. Dr UHR-One way in which I think the committee could respond to Hugh Smith's challenge-because I tend to agree with him that the committee inquiry might be part of the problem-is to try and identify where the inquiry is going in terms of conventions, practices, standards and the like. I think one way in which the committee can do that is by starting to compare: not just looking at Australian practice and puzzling over it, but trying to compare. One useful point of comparison is still the UK. We tend to judge things in terms of the Westminster system and I think one of the features that is dangling itself before the committee is that Westminster has moved on, specifically in relation to the issues that Hugh Smith raised in relation to the power and authority of ministerial staff. Ministerial staff in the UK now are subject to a major public inquiry, in part because they have already established a specific code of conduct for ministerial staffers which is absent in the Australian case. They have a legislative framework which is worth the committee looking at by way of comparison to identify the practices and conventions that might be appropriate to the power that is increasingly exercised by ministerial staff. When you look at the details of the UK code, there are things that we can learn from that, because they have lots of prescriptions about the duties of ministerial staff to respect the political neutrality and professionalism of public servants, particularly in relation to the management of public information. I would be happy to direct the committee's attention to the specifics of that, but there are things we can learn other than just regurgitating issues of anxiety here. Trying to search around and look at possible models of best practice and the UK is a good place to begin. Prof. WELLER-I will mention very briefly four or five areas which have been canvassed directly and indirectly and which seem to be brought up by the committee. The first is the relationship between ministers and their senior two or three levels of officials, which has changed quite dramatically over the last 25 years, partly because of the growing professionalism of ministers. It has changed also because of the terms and conditions under which senior public servants are now employed. We have combinations of contracts and shorter periods-they started at five years and they have become more limited. We also had the Barratt case a couple of years ago, in which a public servant's position was terminated. It went before the court saying, `Due to no action of his own.' There was an agreed point when the appeal came up: it had not been anything that the secretary had done; it was simply that the minister decided they CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1197 had no confidence in them. What are the implications of that sort of position for secretaries and their relationships with ministers? If the pendulum swung too far in the 1970s, as I would argue, towards the overprotection of senior officials, the question is whether it has swung too far the other way and is having an im- pact on the preparedness occasionally to give advice in particular cases. When I wrote a book 20 years ago, the comment was made to me that if the minister is doing something with which you don't agree, to object once is desirable, twice is necessary and three times is suicidal. There is a balanced position which we need to find, and I am not sure if the pendulum has swung too far in that case. The second question which will keep coming up is that of ministerial staff, particularly the fact that the role of ministerial staff has changed very dramatically over the last 25 years. The change started, in a sense, in the early seventies, and it has grown increasingly, but I am not sure that the legislation, the terms of accountability that might be applied or the codes of conduct which may or may not exist have moved at the same speed. The notion that people would, to the same extent as they do now, make demands at all levels of a department I do not think occurred 15 years ago. We have two ex-ministers here and they can probably talk about what happened 10 years ago. At some stage the question is not only what they should be doing and how they should be relating to the public service, but also accountability, and accountability to the Senate which is currently, I believe, excluded, yet they are on the public purse and they are giving advice to ministers in the same way that secretaries of departments are on the public purse and giving advice to ministers, and they are playing a major role in the decision making of this country. The assumption that once applied that if you tell a ministerial staff member something you have de facto told the minister something quite clearly no longer seems to apply. When you had smaller staff, that did apply. I do not think it does now, so perhaps that question needs re- examination. A third point is the question of-I suppose the public's right to know is one way of putting it at its extreme-who corrects incorrect data if people know it is incorrect. It becomes quite difficult-Hugh has talked about the military-but how far do you press it if you believe that something is wrong and the public is being given the wrong impression? Is there any way of saying quite simply that what you have been told is wrong and where does it come from? In this case you had a highly centralised media process which required everything to be checked through the minister's office-even basic facts about what happened in particular events. This inquiry raises the question of whether that is desirable or whether there ought to be other ways in which the public can know what is happening. I am talking not about secrets or national security, but simply what is happening and whether there are better mechanisms available for correcting the public record. The fourth one, which I know you have touched on on one or two occasions, is the question of caretaker conventions. It would seem to me, from the evidence that is before you, that this all occurs during an election period. I think that a couple of times people have said the caretaker conventions do not affect it. The question that raises is: ought it to? Ought there to be different circumstances during an election campaign? Perhaps it is not a matter of making appointments or new policy, which is certainly covered by caretaker conventions, but it is the use of the CERTAIN MARITIME INCIDENT CMI 1198 SENATE-Select Thursday, 18 April 2002 Public Service by a government-any government-within that period to do things. Should they be different from those that are done during normal process? I do not know the answer; I raise the question because it is something that seems to have occurred on several occasions during your discussions. CHAIR-I will not interrupt, but on that last point, on a matter of fact, there is a certain pi- quancy in this because the election had been announced but the caretaker convention for a short time had not been invoked. I think the first report of children overboard came during that pe- riod, and then the caretaker convention kicked in. Prof. WELLER-The other question then is: should we change the time limits invoked-is it the announcement or is it the prorogation of parliament? Those are the sorts of questions that we can raise. Senator FAULKNER-In fact, the Prime Minister announced at the time he indicated he would be calling the election the date from which the caretaker conventions would apply. That has become normal practice. The time lag has become greater as time has moved on. In this case, I think it was a couple of days. Senator FERGUSON-It was on a weekend. Senator FAULKNER-The public announcement of the election was on the Friday. I think it was at a press conference on that day that the Prime Minister indicated that the caretaker conventions would apply from the subsequent Monday. Ms TIERNAN-I would like to pick up two points that my colleagues have raised on the issue of ministerial staff. John raised the point of comparison being the Westminster system, which is obviously a good one-there has been a lot of work in the UK about that-but another point of comparison is the American system. It is obviously at a more sophisticated level of development, but there is a whole industry developing prescriptions for presidents and congressional representatives about what they should use in terms of advisory arrangements. I think it is pertinent in this case and for the issues that are emerging in the inquiry to mention that to date Westminster ministers have not tended to see problems that arise as being systemic; they have tended to see those problems as being individual, saying `Oh well, if I'd been the minister that wouldn't have happened,' or whatever. In the same way as there is no particular appetite for presidents to pick up the prescriptions that have been offered to them, because they do not suit them and they are wanting a flexible system that meets their advisory needs, we need not anticipate that Westminster ministers will pick them up either. We need to come to a point where executives recognise there is a systemic danger to them in an advisory system that is very fragmented, chaotic and ambiguous potentially, and then be prepared to do something about it. At the moment, my sense-and picking up the point about the nature of the inquiry-is that while the kind of partisan arrangements exist that preclude us from even knowing the total numbers of ministerial staff, except for what is extracted at Senate estimates time, we need to have a base from which to start making some judgments. We do not have that base now because of some of the inherent partisan practices that have grown up around the ministerial staffing institution. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1199 Senator BRANDIS-You accept, I assume-and I think this is commonplace-that the pro- tection of executive privilege, as it were, under the Westminster system is much stronger than it is under the American system. For example, in the British or the Westminster system, jurispru- dence knows nothing like the US Supreme Court's decision in the case of the United States and Nixon-the Watergate tapes case. Ms TIERNAN-Sure. Senator BRANDIS-Am I right in thinking that that is something that we can take as a given-that our system, the Westminster system, is much more protective of the privileges of the executive government than the American system? Ms TIERNAN-I think that is right. But one of the interesting things about the issues and the anxieties that are being expressed about ministerial staff here and about special advisers in the UK is that the language is very similar to what was in the American literature 30 years ago. So there is a period in which everybody says, `This is essential for ministers. They are overworked; they are overloaded; there are public expectations. They need help to cope.' Then it moves on to, `All right, we have developed this system and there is this potential for problems in it. What is that potential for problems? How do we reconcile those competing tensions?' There has not being a book since Can Ministers Cope? 20 years ago in which some of what ministers actually need to do their jobs effectively has been explored. On the other hand, what are appropriate arrangements to ensure that they get that within a system that is appropriately accountable, transparent and whatever else it needs to be? Senator MASON-So it is how to cope with the new reality? Ms TIERNAN-Sure. And one point of comparison is the UK; the other point is the US. Senator BRANDIS-They are PhD students of Professor Weller, I think. CHAIR-Maybe we will look in on the tutorial. Sir Richard, you raised your hand so you can go first. Sir RICHARD PEEK-I am not very coherent in speaking off the cuff but there are a couple of points I would like to make. There was reference to whistleblowers and discontent. In the bad old days, whistleblowers did not even exist. It was not a word in my vocabulary until perhaps the last 15 years. We did not worry about whistleblowers because, as has been said, we had the loyalty of our sailors and junior officers. On the question of discontent, I wonder whether the committee has had much information about just how unpleasant the tasks of these officers and sailors are. Manoora, for example, had hundreds of discontented Iraqis being held off Nauru Island for three weeks. Nobody seems to realise just what life must have been like for the sailors in that time. Similarly, with Adelaide they had 240 plus their crew on board for 48 hours. Has anybody thought of what it must have been like? Is anybody going to do anything about that? They were the points I wanted to speak on. But I have a few of my own. It has been suggested and acted upon that the services are businesses. The services are no more businesses than is the parliament, the police force or the teachers. They are services and CERTAIN MARITIME INCIDENT CMI 1200 SENATE-Select Thursday, 18 April 2002 services cannot be organised the same way as businesses. I think that is part of the problem in the current organisation of the defence forces. It has been said from time to time that the muzzling that goes on is for security reasons. The security of the Commonwealth is protected by the Crimes Act. Anybody in the services with any responsibilities knows of the Crimes Act and everybody sticks to it or else goes to jail. We have not had any go to jail recently. To say that the present instructions, which are signed by the secretary of the department and the Chief of Defence Force, are draconian is putting it mildly. The reason they are written, I believe, is so that the government and its advisers can try to stop people from telling it as it is. One of the great worries of the men at sea is, I am sure, that lies- I say it advisedly-are being told about what they are doing. The `babies overboard' event, which happened on 8 or 10 October- CHAIR-The 7th. Sir RICHARD PEEK-By mid-October, around Canberra, you could hear it in every pub and club everywhere that it was untrue. Yet it did not percolate up the political spectrum because of bad advice, because of bad advisers, or just didn't they want to listen? But I can imagine what a job the captain of the Adelaide must have had to pacify his troops about the `inaccuracies'-let me put it another way-that were being alleged about what they had done. The security reasons, which you have quoted and I mentioned before-do not stand up to investigation. Presumably, the government's requirement was to get the word to the people smugglers, to the illegal immigrants, that it was not an option to try to come to Australia. Surely the way to achieve that was to get first-hand stories of what happened to people who had tried to get to Australia. One would have thought that a sensible government would have used the reports from the commanding officers of the patrol boats, the frigates, the landing ships, to get this information into the press and the media and out into the big wide world. To say there are security reasons for not allowing people to talk, or their reports to be made public, is just plain stupid. I would also use the word `stupid' about the chain of command. Currently-and I keep a fair eye on it-it is obscure and complicated. The captain of the Adelaide had a conversation with a brigadier in Darwin-Lord knows where it went between then and the time it got to Defence who, at the moment, are the authority. They passed it, allegedly, to the minister-or to their advisers, departmental heads-but nobody knows after quite a long investigation, which you gentlemen have been carrying out, just what did happen. Now in the bad old days, the captain of the Adelaide would have sent a signal to the Naval Board, with copies to anybody who was interested, and the Naval Board, through its own minute public relations organisation, would have issued the statement and told the Minister for the Navy and then it was up to him. There is no Minister for the Navy now. What the chain of command should aim to do, I believe, is to get the information from the operator to people who have the technical knowledge, who can do something about the complaint breakdown or whatever it happens to be, and who have the power to release the good and bad news to the media. It seems so simple, but it is what happened in the old days. I could give examples but I am not going to bore you with those. That was the drill. If something happened that you thought was of public interest or of concern to the government, you reported CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1201 it to headquarters who then took it from there. Nowadays, one does not know; it goes through ministerial advisers. I do not like to get emotional about ministerial advisers because I had a nasty session a few years ago when a few of us were trying to get justice for something that had happened to sailors in the late 1950s-there has been dawn since then-and the garbage I got from the ministerial advisers of two ministers was breathtakingly dreadful. I have mentioned the security aspect ad nauseam. I personally think that the present docu- ment, issued under the signature of the secretary and the Chief of Defence Force, needs to be torn up and scrapped. People should use their commonsense as to what they do-and the com- manding officers are responsible citizens. At the risk of boring you for one minute, let me tell you what went on in the prawn war of the sixties. Does anybody remember it? Have you heard of it? CHAIR-Yes, of course. Sir RICHARD PEEK-The prawn war was caused by the invasion of our territorial waters and prawning grounds in the Gulf of Carpentaria by a Russian squadron of prawners and a large mother ship. We had a few patrol boats available and we sent a couple of patrol boats, commanded by lieutenants of the ages of 24, 25 or 26, with instructions to get rid of the Russians. They were a bit more specific than that, but not much more: `Try not to get into trouble, but get rid of them.' And they did. Their chain of command was to the admiral at sea and to the Naval Board. There was some concern expressed by legal authorities that they should have a legal officer on board. There was no room for that, so then they suggested that they should have a legal library. This was understandably laughed at and scorned-because what do you do when a Russian mother ship is bearing down on you? Do you ram her or go to your legal library and inquire as to what you should do? CHAIR-Maybe you throw the book at them! Sir RICHARD PEEK-However, I have talked for long enough. Basically what I am saying is that you must accept that the Navy at sea is commanded by responsible people. The men and women they command are splendid people, and it is hurting to me personally that they be treated the way they have been over the last six months. CHAIR-Mr Podger, would you like to say a few words? Mr PODGER-If I may, I would like to say a few things. The first point in your note to us was about sound practice in public administration. I thought it might be useful to make a few comments about that in the light of the Public Service Act 1999. There has been a major shift over the last 20 years in devolving authority to agency heads and away from a central body of the Public Service Board and away from prescriptive rules in the Public Service Act. The provisions in the act now are around values and a code of conduct. There are some people who view those as aspirational things that you put on the wall and you hope people think about. But I want to make it clear that it is a lot more than that. The values and the code of conduct are in the law. They are in sections 10 and 13 of our act. There are obligations in the act on agency heads to uphold and promote the values and to ensure that there is compliance with the code of conduct, and the Public Service Commission has an evaluation role in its functions on both CERTAIN MARITIME INCIDENT CMI 1202 SENATE-Select Thursday, 18 April 2002 those scores. The Public Service Merit Protection Commission has put out some guidance on these things in terms of a document on values, and there are directions on each of the values. We are currently looking closely at the guidelines on official conduct and bringing them up to date under the act. What I would expect agency heads to have in their own arrangements to en- sure that the values are being abided by and the code of conduct complied with are in their chief executive instructions, in their governance arrangements, their various decision making proc- esses within the organisations, their various plans, their performance management system and accountabilities and in their training and development. The values and the code of conduct, if you like, set out what is the institution of the Public Service, the relationships between the Pub- lic Service and government and between the Public Service and the public, workplace relations and the personal behavioural points expected of public servants in the Public Service, including their personal ethics. The second thing I want to raise that was in your letter was about the Public Service and ministerial office arrangements. Pat Weller mentioned that there has been a swing of the pendulum over the last 25 years or so, and I think that is absolutely right. One of the major themes of the Coombs royal commission back in the 1970s was that the Public Service was not responsive enough to the elected government. I note that Prime Minister Howard in mid-1996 when he released the then values for the service made a comment about how much he appreciated the shift from when he had previously been a minister in the responsiveness of the service and its working relationships with ministers' offices. I think behind the scenes what has been happening is, while the service has indeed become more responsive to the elected government, as it should have been, the relationship has become more complicated, partly I suspect because of the increased pressures of communications in the modern world and the media that require ministers to have more support in their being able to respond immediately to anything and everything and the role of the service being to provide depth and a longer term perspective in the interaction. That interaction has become more complicated. The response has been both to increase the size of ministers offices and also that departments have to change their own ways in order to be able to help respond to that pressure. In the relations between the Public Service and the government there are particular values that should be drawn out. The first ones are the traditional ones about what is the Public Service as an institution. The first value is about being an apolitical, impartial and professional Public Service. The fifth value is about being accountable. The sixth one is about being responsive to government, and there is also a value about results and performance, which I think also has a major impact on relationship. If I turn to the code of conduct, there are a number of points in that which are particularly relevant. The first one I draw your attention to is that the public servants are required to comply with all applicable laws. This is not a trivial point. It means that, apart from the Public Service Act, there is financial legislation, there is a whole barrier of administrative law. Most agencies have their own legislative provisions that they must abide by. That governs a great deal of the relationship between the Public Service and the ministers. There is a provision in the code of conduct about confidentiality, an essential one which refers to confidentiality not only with the minister but also with the minister's office, and that goes to CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1203 the need for trust between the service and a minister and the minister's office. There is also a code of conduct provision about the proper use of resources, which also can have a major im- pact on the relationship between a department and a minister and his office. There is some tension between the values, and we should recognise that. The value about being apolitical, impartial and professional does not actually say we are independent. If we took that value on its own to an extreme, we would have major problems about responsiveness of the service to the government of the day. I also note that the responsiveness value actually includes within it the terms `frankness', `accuracy', `comprehensiveness' and `honesty'-that is, if we are truly responsive to the government of the day we have got to be careful that we understand that a short term responsiveness to meet an immediate apparent requirement is not being responsive if we fail to give the frank and more detailed advice that is necessary and with full accuracy. I would like to say a couple of things on the relationship with ministers' offices. I mentioned that we are looking at the guidelines on official conduct. The current guidelines are very brief on the relationship, and I think this is an area we need to expand upon to clarify for public servants their relationship with ministers. The issue of trust is important until you get the relationship working and I would see that, therefore, the relationship has got to be professional and cooperative. But we need to remember the basic line of authority-that is, that staff are responsible to agency heads, who are responsible to ministers. In this context, you need to have a close relationship, but the minister's office is not there as a power to direct. The minister needs an office there to help in the process and to handle the scale of activity, and by nature there will be a lot of relationships between the minister's office and the staff of an organisation. But I think we do need to clarify that, in law, there is no power to direct. The relationships are between the staff and their secretary and between the secretary and the minister. Obviously, in making that relationship work, staff would normally expect that, when they are dealing with a minister's office, they will know what the minister is saying, that they will understand the requirements and that this approach will work very easily and properly. But I think there is a need within each agency to clarify the protocols of the relationship. If there are things that are uncertain, when can you escalate these issues up the line to the point where a secretary might need to talk to a minister at a certain stage if there are real uncertainties about the advice being passed between a minister's office and the staff of an organisation? I also believe that it is probably good practice, when public servants are providing advice, that any written advice should be addressed to the minister, albeit it will go to a minister's office. It might be dealt with by a minister's adviser, but I think the important relationship of authority needs to be abided by. On the issue of codes of conduct for ministerial advisers, that is outside my specific jurisdiction but I would make a couple of points which may be relevant. As I have mentioned, the Public Service Act has a set of values and a code of conduct in it. There is, in fact, also a Parliamentary Service Act-and I am also the Parliamentary Service Commissioner-and it also has a set of values and a code of conduct. There are particular areas of difference between the two sets, recognising, in particular, the different lines of accountability that the two sets have. In my view, there is a case for some articulation of the values and code of conduct of ministerial officers. Whether that should be in legislation or somewhere else, I have no view. It may simply be an issue of some statements from the Prime Minister or something of that sort, CERTAIN MARITIME INCIDENT CMI 1204 SENATE-Select Thursday, 18 April 2002 but I think it would be of some assistance if there were some approach there to clarifying the principles. CHAIR-Thank you very much, Mr Podger. We should turn to the committee to raise ques- tions. This is a different form of procedure from the one we have been adopting up until now, by which we have been questioning people as to the facts. We are here soliciting opinions and this will be a much more relaxed and informal procedure. I will ask Senator Brandis to lead off, but if there is a point that a person makes at the table that other members at the table wish to elabo- rate on, would they also indicate that so that we at least get a rounded view from all of you about any matter that is before us under discussion. Senator BRANDIS-I want to deal with two issues. The first of them is the notion of the chain of command, which was addressed by Professor Smith and Sir Richard Peek. We have spoken a lot in this committee about the chain of command, but that is a bit of a misdescription because what we have mostly heard evidence of is something a bit different-that is, the chain of reporting. So, although instructions coming down the chain have been a relevant matter for this committee to be aware of, it seems, at least to me, that a much more important thing that we have heard about is the chain of reporting up the chain, particularly in the famous SIEV4 incident on 7 October-the origin of the report, how the report went up the chain and, most importantly, the point at which sufficient doubt ought to have formed in the minds of the people at the top of the chain before that report was corrected, if at all. I would like to put this in a context and invite Professor Smith and Sir Richard, or other members of the committee, to comment on it. This is, I think, more specifically a military issue than a public service issue. I will put this in context by reading you a bit of evidence from Admiral Barrie. I will indicate my own prejudices at the start by saying that I, myself, have no criticism of Admiral Barrie; I think he was too self-critical and for the life of me I cannot see what more he could have done. In any event, that is my impression. But let me read you this little piece of evidence about the chain of reporting and, in particular, the point at which a report ought to be challenged or set aside or action taken at variance with it. Pages 788 and 789 of the committee's Hansard read: Senator BRANDIS-Admiral Barrie, I would be right-would I not?-in thinking that the reliability of reports received up a chain of command or a chain of reporting is a very important value for the Navy ... He agreed; he said yes. And I said: ... that one of the professional skills in which naval personnel and in particular commanding officers are trained and in which they accomplish a high level of expertise in fulfilling is the ability to provide reliable reporting- Adm. Barrie-Yes. He agreed with that. Then I said: ... and the Navy relies heavily upon that capacity in order to make operational and command decisions? Adm. Barrie-Correct. Senator BRANDIS-Would I be also right in thinking that it follows from that that when a report has been received, in particular from a commanding officer in an operational situation, that report would not lightly be disregarded or set aside or changed? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1205 Adm. Barrie-I think I can agree with that, with the only proviso being: provided his superior commander was not in receipt of other information. I want to stress that word `information', because gossip about doubts is not, at least to my mind, information. And I said-I am coming to the end of this: Quite. I understand that. There seems to me, I must say, a degree of artificiality about a lot of this discussion because it assumes that there was not a status quo about the reportage of the SIEV4 incident, whereas from the time the first report went up the chain, through Brigadier Silverstone to Air Vice Marshal Titheridge, there was in fact a status quo as to the reporting. And that status quo was the initial report that suggested a child had been thrown overboard. Do you follow me? Adm. Barrie-The events begin with the initial contact. Senator BRANDIS-Yes. So that initial position, the reliability or, if you like, the authority of that initial report, would not lightly be set aside. It might ultimately have to be, as indeed, in this case, it was. But it would not be lightly set aside-would you agree? Adm. Barrie-I agree. Senator BRANDIS-Nor should, as a matter of proper procedure, such a report lightly be set aside? Adm. Barrie-No. Senator BRANDIS-And you as the ultimate commanding officer of the military would in fact be-may I suggest to you, with respect-behaving quite inappropriately were you to disregard or set aside a report on the basis of which decisions had already been made, unless you were well satisfied that it was wrong? Adm. Barrie-Yes. Those are the propositions. Admiral Barrie, with the one qualification, agrees with them all. I think it is perhaps useful for me to invite you-in particular you, Professor Smith, and you, Sir Richard, from the military point of view-to speak about the sacrosanct nature, or the extent to which it is sacrosanct, of the chain of reporting. CHAIR-I am glad that you have raised this, Senator Brandis, because, as you know, I did not get an opportunity in the limited time to conduct an examination of Admiral Barrie for myself, and I am in the hands of the examination you and others in the committee conducted- and I do not complain about that. But this is an area in your examination of him that I was particularly interested in as well. Therefore, I am indicating that I am very interested in the response to the points that you have made, because I think there is an alternative case-but, anyway, let us see. Prof. SMITH-I am happy to go first. I will begin by saying that the safest assumption is that the chain of command and the chain of reporting should be seen as one and the same thing. Information reporting-synthesised information, intelligence-is absolutely critical to effective command. Having said that, there are some ways in which those involved in operations can speak more openly to the public, subject to all sorts of constraints. The chain of command and the chain of reporting, as a basic proposition, are focused on the Chief of Defence Force, as the commander, the man with effective authority over the whole of the Defence Force. Anything which detracts from his command over those forces or detracts from the CDF as the focus of information has to be carefully monitored. If the government wishes the Defence Force to do something, it should go through the CDF via the minister. Any suggestion that the Defence CERTAIN MARITIME INCIDENT CMI 1206 SENATE-Select Thursday, 18 April 2002 Force might be doing things-even providing information-at the behest of ministerial staff or, indeed, civilian public servants, is something that has to be very carefully arranged and organ- ised if it is considered necessary. That is my basic point: consider the chain of reporting and the chain of command as one and the same thing, or different sides of the same picture. On the specific case of tactical information-reports of an immediate situation being made up the chain of command-yes, it is true that the immediate commander will normally rely on the information coming to him or her. Often, it is the only information that is available, it is necessary for immediate action and it can be critical. That is why, as Senator Brandis says, a great deal of emphasis is placed on training the military in reporting accurately, correctly and quickly. But it is certainly recognised by those in command in the military that information can be wrong. This is one of the great problems of command. You have to, in many cases, take decisions knowing that information is unreliable, incomplete and might change at any moment. Senator BRANDIS-I agree with that. Perhaps this is the focus of my question. It is a bit difficult to express this in the abstract, but what is the point at which a report, received up the chain of command, is declared to be wrong and to be set aside? More particularly, by what process are doubts about the reliability of an initial report tested, leading ultimately to the initial report being set aside? And how certain does the recipient of the initial report need to be- presumably more than at the level of gossip around the pubs of Canberra? Prof. SMITH-I am getting to that point. I think it is recognised that a lot of the initial information-that is the only information available and the commander must act on it-is doubtful. It may be proved wrong later. It is, in Brigadier Silverstone's word, `frangible'; it is not rock solid. So the military have procedures for correcting information, for providing up-to- date reports as the commanders-the chain of command-require. Senator BRANDIS-Can you tell us what those procedures are? Rather than talking in generalities, I am very interested in the specifics of that process of correcting reports. Prof. SMITH-I think a lot of the correction is de facto. A report is made, `The enemy is advancing from the north,' and five minutes later the report is made, `The enemy is advancing from the east,' and there is no official process to correct it; there is no formal declaration that the initial report was wrong. It is simply corrected by the reporting chain of command in the nature of things. Senator BRANDIS-But in the example you have just given us, Professor Smith, you have fact A which at a point in time later is directly contradicted by fact B-and the two facts cannot live together so, as long as one is satisfied that fact B is the most accurate and the most contem- porary report, fact B replaces fact A. Here we have a situation in which there is a clear and spe- cific piece of information passed up the chain, that is, a child is thrown overboard-and do not worry about whether it is ultimately proved to be right or not, as I am interested in how that in- formation is to be treated-at a time later, commencing quite soon after the initial report is re- ceived up the chain, there is a suggestion that that piece of information, fact A, is wrong. As Sir Richard said this morning, by the middle of October it was the talk around the pubs of Canberra that that was wrong. At what point does `talk around the pubs of Canberra' or talk within the military, that fact A is not a fact, become sufficiently concrete or defined to cause the CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1207 initial report to be set aside? Is there a process for that? If there is not-and this is almost a matter of commonsense-you cannot replace a given fact with gossip about whether or not the fact is true. You can replace a given fact with an alternative given fact that is subject to the same process of proof. Prof. SMITH-I will make two points there- Senator MASON-Can I interrupt, because there is something that Rear Admiral Ritchie said right on this point. He said in his statement-and this is Senator Brandis's point: Any failing on Defence's part is not in how the information was managed or passed in the first instance rather, in the process for refuting the information when it was found to be false. Senator BRANDIS-If it was found to be false. What is the point at and process through which the finding that fact A is not a fact is arrived at? CHAIR-I know Sir Richard wants to come in on this, but just before we go to Sir Richard and as you conclude your comments on this point, could you comment on this aspect of it. I understand in the law there is a phrase `more and better particulars'- Senator BRANDIS-Further and better particulars. CHAIR-Further and better particulars; thank you. I am not a lawyer and I have now been corrected by one. Senator BRANDIS-I am trying to be helpful, as always. CHAIR-And you often are, Senator. You get a report of something, and the officer up the chain of command is an intelligent human being with responsibilities for his duties. He has to absorb, synthesise and ask where the gaps are and what more he needs to know to get a better picture. So that is an inchoative process; it is not a mechanistic one such that a signal comes up, it stops and people have to focus on interpreting that language to divine meaning and if they are in doubt, go back down and up and down. That is as I understand it. So senior officers, if it comes within their ken that there are doubts and they think they are solid, would reasonably, to discharge their duties, inquire. Sir RICHARD PEEK-We are not talking about a hypothetical situation; we are talking about an actual situation. I would not know what Admiral Barrie knew or did not know, but it has come out that the brigadier in Darwin interrupted the captain of a ship in the middle of an operation because someone in Canberra had told the brigadier he wanted information about it by a given time-and there was debate about this, I understand. The brigadier, I do not imagine, had much experience of naval operations of rescuing asylum seekers, but his report went some- where. I do not know where it went first, but ultimately it got to Admiral Barrie. Did Admiral Barrie know that it had been demanded in the midst of an operation? Did Admiral Barrie know what the chain of command had been-or Defence, I should say, because I do not know. That information was passed out as truth. Did anybody ask whether it was true? CERTAIN MARITIME INCIDENT CMI 1208 SENATE-Select Thursday, 18 April 2002 Senator BRANDIS-But, Sir Richard, at the time it was passed out-and I assume by that you mean when it was first publicly spoken of in the public arena- Sir RICHARD PEEK-I am talking about when it was passed out to the bureaucrats. Senator BRANDIS-But when it was first publicly spoken of-that is, at about lunchtime on the 7th-it was received in Canberra over the telephone at about nine or quarter past nine, I think, on a Sunday morning. Sir RICHARD PEEK-Over the telephone? Senator BRANDIS-Yes, it was. Sir RICHARD PEEK-From who? Senator BRANDIS-From Air Vice Marshal Titheridge. Sir RICHARD PEEK-Where did it come from? Senator BRANDIS-It came from Silverstone. Sir RICHARD PEEK-From Silverstone by telephone to whom? Senator BRANDIS-To Banks. Senator FAULKNER-No it did not. Let's be accurate about this. Sir Richard has actually hit the nail on the head. There was a special arrangement put in place by ministers-or the minister; I am just using ministers in the broad-to facilitate speedy access to information and the transmission of that information, and that was by Brigadier Silverstone in Darwin to Air Vice Marshal Titheridge, the Head of Strategic Command. It was outside the chain of command. That is what happened, isn't it? I want you to comment on this, Professor Smith. This has been identified by Major General Powell in his routine inquiry and by Ms Bryant and others who have investigated it. It was a special arrangement outside the norm, outside the chain of command, so you could have speedy access to get information for a minister going on a television program. Of course, it turned out to be inaccurate, but when it came to transmitting the correction all speed evaporated. It seems to me that that hits the nail on the head. I think Sir Richard has got it right. Major General Powell, in his routine inquiry-please comment on it- says: There was a number of contributing factors ... and he goes into it- But ultimately, it was a direct result of the conflicting balance between the provision of timely information versus accurate information. It seems to me he sums it up in just that one phrase there. He goes on to talk about the chain of the command. He concludes: CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1209 I have concluded that the degradation of the command chain of communication in terms of the way information was passed during all aspects of this incident is a contributing factor to this situation. I think Vice Admiral Peek is right, but I would be interested to hear from you, Professor Smith, as to whether you acknowledge it because I think Vice Admiral Peek has got it absolutely right and hits the nail on head. Senator BRANDIS-Professor Smith, before you answer Senator Faulkner who came in across me, I wanted Sir Richard to have the opportunity to complete his answer. We were having a dialogue about exactly what the sequence was. The point we were at when I was interrupted was this: you have a report which is publicly released, the substance of which is publicly spoken of by a minister at about lunchtime on the Sunday. It has come up a chain of reporting and I accept that this is a special arrangement-Senator Faulkner, your point is well made. But the point I was at pains to make to you, Sir Richard, is that at the time at which it was publicly spoken of at about lunchtime on the Sunday, it had not been called into question by anyone-nobody. Sir RICHARD PEEK-How do you mean it had not been questioned? Senator BRANDIS-By lunchtime on Sunday, the 7th, nobody had questioned the accuracy. Sir RICHARD PEEK-Who had the chance to question it? Brigadier Silverstone? Senator BRANDIS-Brigadier Silverstone passed the message up the chain. Senator FAULKNER-Why? He did not pass it up the chain; he passed it to Titheridge, which is not in the chain of command. You know that. Senator BRANDIS-He passed it on to the person to whom he had been directed to pass it on. Senator FAULKNER-He may have passed it up the chain as well, but the point is: the chain of command was bypassed. We all know that. Senator BRANDIS-We accept that. Senator FAULKNER-Thank you! Let us get it right. Senator FERGUSON-If we are going to have a debate amongst the committee members, we might as well allow the witnesses to go home. We are here to ask them questions. Senator FAULKNER-There is no point in our putting to the witnesses questions which contain inaccuracies. That is all. You have to get it right. Senator BRANDIS-Can Sir Richard come to my question? Sir RICHARD PEEK-Can I trust that I can answer your question without any interruption? CERTAIN MARITIME INCIDENT CMI 1210 SENATE-Select Thursday, 18 April 2002 Senator BRANDIS-Sure. The point at which, and the process by which an initial report, which is then subject to doubts- Sir RICHARD PEEK-Whether it was published or not has got nothing to do with it. The initial report-I do not know whether Admiral Barrie knew, or anybody else knew-had come by telephone from the ship to a man in Darwin- Senator BRANDIS-The Head of Strategic Command. Sir RICHARD PEEK-to Silverstone. God knows: did it go by telephone to Barrie to or who did it go to? Senator Brandis interjecting- Sir RICHARD PEEK-Wait a minute. Let me finish. Then, in the proper chain of command, the captain of Adelaide sent a signal, as I understood it, giving the details of what happened. For somebody to suggest that the initial process of telephone calls, when the radio was available for an official report, and the initial report had been demanded because some clot in Canberra wanted to talk on a television station-God, it makes me speechless! Senator FERGUSON-I think you are a little out of date. Senator BRANDIS-Sir Richard, by what process is an initial report corrected? Is there a process in the military? To what extent, in other words, would we rely upon the integrity of the original report? Sir RICHARD PEEK-As I keep on saying, I do not know what Barrie's process was. All I can say is that the proper process is that when you get an official signal from a ship, as opposed to a telephone call through a link of several people, the sensible man-and I understand that the law has a sensible man-would accept the version of the captain, which was specific and detailed. Do I make myself clear? Senator BRANDIS-I think I understand what you are saying to me, but it is still not appar- ent to me what you say about the point at which, or the process by which, an initial report-or the reliability of an initial report, which I think people accept is a value of the military-is to be suspended or set aside when doubts are raised about its accuracy. It is not apparent to me what you are saying about that. Sir RICHARD PEEK-It is a hypothetical question. Senator MASON-It is a fair question; it is absolutely fair. Sir RICHARD PEEK-In the battle of the Coral Sea, the Australia was bombed. There were dramatic pictures of a ghost ship coming out of high-level bombing, and it made the press in Australia-it probably made the press all over the place. Senator FERGUSON-Communications were different during the battle of the Coral Sea. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1211 Sir RICHARD PEEK-Two days later, an amended signal from the admiral said that he had discovered that the high-level bombing of Australia appeared to have been done by friendly forces. This was the process. What the Naval Board did with it, of course, was to muzzle it because they did not want to upset our allies. That was the process when I was young. Senator BRANDIS-If I can borrow an expression of Senator Faulkner's, you have once again hit the nail on the head. The example you give is of an initial report of a fact being swiftly contradicted by an alternative report of a contradictory fact. That is not what happened here. You have an initial report of a fact which is contradicted by, to use your expression, gossip around the pubs of Canberra. Sir RICHARD PEEK-No, it was not a fact. You are misleading us all. The initial report was not a fact- Senator BRANDIS-But it was presented as a fact. Sir RICHARD PEEK-and it was demonstrated that it was not a fact. Senator BRANDIS-That is the point, Sir Richard: at what point is it demonstrated not to have been a fact? That is what I am interested in. Sir RICHARD PEEK-It was demonstrated not to be a fact when the captain sent an official signal. Senator BRANDIS-But the captain, in this official signal, did not say it was not a fact. That is the point, and I think you are misapprehending it. Sir RICHARD PEEK-Oh, for God's sake! CHAIR-I think we are now bogging down on this. I think it ought to be said that Brigadier Silverstone said in evidence-and I can turn up the reference-that, if everything had been put in writing and procedure had been followed, no mistakes would have been made, or words to that effect. Sir RICHARD PEEK-It should have been. Senator FAULKNER-That is true. Can I ask Professor Smith to respond? CHAIR-And we will then move on, because I know Dr Uhr has a comment to make. I do not know if anyone else has. Senator FAULKNER-I raise this question specifically on the chain of command issue, given that we know that the problem arose in part because of the fact that the chain of command was not used to pass on this information. It was a special arrangement, as described by the brigadier and the man whom it was with-that is, Air Vice Marshal Titheridge-that was organised by the minister. Isn't that a real problem here? Doesn't it go to the integrity or the CERTAIN MARITIME INCIDENT CMI 1212 SENATE-Select Thursday, 18 April 2002 problem of the chain of command-and there is another problem with the chain of command? Isn't this actually bypassing the chain of command? Prof. SMITH-If I could make some responses to these points- CHAIR-I think we have demonstrated contention among ourselves sufficiently well already, so please do so. Prof. SMITH-Maybe I can stir up some more. CHAIR-Maybe you will-it does not take much effort, I can tell you. Prof. SMITH-The actual, factual question: was a child, or children, thrown overboard or dropped overboard is, in tactical terms and operational terms, utterly trivial. From Commander Banks's point of view, all that mattered was that no lives were lost. He was fulfilling his directions, which were to deter and deny. To save lives, to prevent the loss of life, is utterly trivial in tactical terms. What is extraordinary about this whole situation is that that piece of tactical information-and tactical information, as I said earlier, is normally corrected quite quickly, as necessary, de facto-very quickly went up to the strategic level, to the political level; it even got into the pubs of Canberra-and maybe there is no higher level than that. So it was most unlike every other piece of tactical information that the Defence Force normally deals with. One reason it got to the high level was, I agree, the special arrangement for Brigadier Silverstone to report to the head of Strategic Command, who then, one way or another, reported to the interdepartmental committee. So there was certainly some complexity there in the way that information was managed, and perhaps we can say there were multiple channels of information. CHAIR-But not to the Defence representative on the interdepartmental committee, who was in ignorance of it. Prof. SMITH-This was Group Captain Walker? CHAIR-Yes. Prof. SMITH-Yes, but I will not comment on that. Certainly there were channels through which information could go. There were other people seeking information from outside the normal channels, including ministerial staffers. That was one unusual thing. The second unusual thing was that, to correct this initial report-which seemed to be correct in the first instance- you had to prove a negative. You had to prove that no child had been thrown or dropped overboard. That is extremely difficult to do, I acknowledge that. Senator BRANDIS-But doesn't that rather suggest, Professor Smith, that, therefore, this is classically the sort of circumstance in which a careful analyst of facts would be slowest to contradict an initial report that had been presented as a fact, for the very reason that you give: because it so hard to demonstrate a negative? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1213 Senator FAULKNER-According to the commander of the Adelaide, there was no initial report to that effect- Senator BRANDIS-That is not right. Senator FAULKNER-and so you cannot do the recall. Senator BRANDIS-That is not correct, Senator Faulkner. I asked- Senator FAULKNER-And through the formal chain of command- Senator BRANDIS-Senator Faulkner, that is just not the truth. Senator MASON-That is not right. Senator FAULKNER-That is the truth. Senator BRANDIS-That is not the truth. Senator FAULKNER-It is the truth. Senator BRANDIS-I asked him: do you accept that Brigadier Silverstone's recollection of the conversation may be correct, and his answer was an unequivocal yes. CHAIR-I asked him, `Was a child, or children, thrown overboard?'-it was the semilast question put to him in the hearing-and he said, `No.' Senator BRANDIS-We understand that that is the position he ultimately came to. There is no controversy that that was the ultimate position. Senator FAULKNER-Isn't it true, Professor Smith, that the integrity of the chain of command-which is crucial in this inquiry but so fundamental to the way Defence works-is an absolute centre point? Nothing can be more important. If the chain of command had worked as it was supposed to work, without a special arrangement, you would have depended on signals from HMAS Adelaide and the like and you would have depended on the written record. You would not have had a special fix put in for a television show for a politician in that way, you would not have had this argument about what occurred or what did not occur in the telephone conversation- Senator FERGUSON-A fix that was never used. Senator FAULKNER-and we would not be sitting here today. Prof. SMITH-Certainly it is the case that a report went up from Brigadier Silverstone that a child had been thrown overboard. That seems to be common ground. Disproving that report, as I have said, would require proving a negative. Is that a reason to act on it for some considerable time? Any commander would have to be very careful in those circumstances. You can spend an CERTAIN MARITIME INCIDENT CMI 1214 SENATE-Select Thursday, 18 April 2002 awful lot of time and effort trying to prove a negative, and in the end you cannot do it. Military commanders, by and large, will be very careful when they are put in a position where they have to prove a negative. They will evaluate all the information before them and they will expect continuous reports to come up to them, as indeed seemed to occur in this case-a later report from Commander Banks came up the chain. The other point on proving a negative seems to be the way it was used at the political level. It was a way of saying, `Let me persist with this report of a child overboard until you can prove to me'-as minister or whoever-`that no child was thrown overboard.' Senator BRANDIS-Precisely. Prof. SMITH-That may be a political way of managing that sort of situation. It does not sit with the military way of handling that sort of situation. Senator BRANDIS-But, Professor Smith, that is not what Admiral Barrie's evidence was. Admiral Barrie's evidence, which I read to you aloud, was that the reliability and the integrity of initial reports are of high value for the Navy and they should not be lightly set aside. Here we have a situation in which an initial report was presented as a fact and contradicted by gossip, speculation and unverified doubt. As you say-quite rightly, if I may say so-to act at variance with it or to set it aside depends on being satisfied about a negative proposition, and that is very difficult. That surely makes my point that if ever there were a case in which the proper military authorities should have been slow to abandon what they understood to be the unqualified initial report of a positive, it would be in a circumstance in which they could only do so were they satisfied of a negative, which, as you rightly say, is so hard to prove, and the only basis-at that stage at least-was gossip. CHAIR-Can I ask you to pick up the point that I made? I want to bring in Dr Uhr because he has indicated that he wants to make a remark about this as well. This is the iterative nature of this chain of command: the finding of facts and assembling the picture for proper decision making. The overlay here that is unique and different is the political one. What you have de- scribed, for operational purposes, as a `trivial issue' is used as a headline, a spectacular national political issue of debate. It seems to me that created some unease in the defence forces. There was a sense-I do not put it any higher than that at this point-that their authority and standing were being used as an element to justify a political conclusion in the context of an election. The evidence is that, by 11 October, the Commander had reported that no children were thrown overboard, and so had Silverstone. That never got out. They had a positive report sent up the chain of command. Prof. SMITH-Let me comment on that. Yes, the military responded in their normal way by continuing reporting and by correcting what appeared to be misinformation. That went up the chain of reporting-or at least it was expected that it would go up through to the CDF and through to the minister. I have to say that there is considerable disappointment in the ADF that the chain of reporting up to CDF and through to the minister does not seem to have worked as effectively as it should. Where does the fault lie for that? Some fault perhaps, as the Powell report seemed to imply, lies in the military chain of reporting, but equally it lies on the political side, in the way in which the doubts about what had happened were used at the political level to say, `Well, we really can't prove anything either way. Let the first report stand.' CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1215 There are certainly some people who feel that Admiral Barrie should have been more active in seeking to find out what actually happened. Having realised that it had become a significant political issue, he should have taken action to find out more expeditiously what exactly had happened. There are mechanisms to do that, not necessarily through the chain of command but through the administrative chain, which is a kind of parallel chain. Senator FERGUSON-Time after time, senior serving officers have told us that it was not an issue at the time. Officer after officer has said that at that time it simply was not an issue. If you are talking about how Admiral Barrie should have taken further steps, he was out of the country for most of the time, until 7 November. CHAIR-I understand that Sir Richard wants to make a remark and some time ago Dr Uhr wanted to make a remark. Could we hear from them before we go to the next question? Sir RICHARD PEEK-Like you, Mr Chairman, I am not a lawyer but I did have the unfortunate experience of sitting around as a professional adviser to the first Voyager royal commission. I listened for months to what I called `weasel words' being used by distinguished Queen's Counsel. Today we have something clear and specific: a telephone call from a brigadier who had taken a message from a commanding officer on a desperate operation. That is clear and specific. Not to me. We have to now disprove negative. What nonsense! The captain is never on official record as agreeing with the initial statement and there is debate as to what the statement was. The captain came a couple of days later, or 24 hours later, and gave his version of the facts. Nobody else was asked. I understand that 14 of his 15 sailors who made reports confirmed the captain's report. Is that right? Senator BRANDIS-No, that is not right, Sir Richard. Sir RICHARD PEEK-You have not heard the evidence? Senator BRANDIS-There were 16 statements taken. Sir RICHARD PEEK-All right-we are on to weasel words again. Senator BRANDIS-Sir Richard, I think I am entitled to some courtesy from you, too. Sir RICHARD PEEK-I am sorry, but could I finish without being interrupted? You quoted me as talking to pubs and clubs around Canberra, and then completely forget the idea that information that got to Defence in Canberra was on the midday news that day because of a leak. That was the official information that you got from Darwin. That took a few hours to get. If people did not know that the second report, which came in two days later, had got round the bureaucracy in Canberra and the ministers, they need to have their heads read. Senator BRANDIS-Sir Richard, just so that we are not in any doubt about the witness statements: there were 16 of them, and in two of those- CHAIR-I think we can say that there is contention in the committee as to what the witness statements- CERTAIN MARITIME INCIDENT CMI 1216 SENATE-Select Thursday, 18 April 2002 Senator JACINTA COLLINS-You are on the record several times now, Senator Brandis. You do not need to do it again. Senator BRANDIS-I am not sure that there is all that much contention. CHAIR-There is considerable contention from me, I can tell you, at the proposition that you have consistently put- Senator JACINTA COLLINS-And about how you have presented it. Senator BRANDIS-Can I just say this, please- CHAIR-We could spend our time pursuing this in detail and thus not get opinions on a wide range of matters-which is the purpose of this. I suspect that, by proxy, we are debating how valid we regard the witness statements to be, by virtue of interrogating Sir Richard-which is something that we could do- Senator BRANDIS-Perhaps that is so, but can I just say: Sir Richard, you should not assume that 15 of the 16 witness statements say that no children were thrown into the water. That has been asserted. Sir RICHARD PEEK-How many did say it then? Senator BRANDIS-One says- Sir RICHARD PEEK-One? Oh! Senator BRANDIS-Please, sir, may I finish? You asked me a question. One says there was- Sir RICHARD PEEK-Look, I thought I said, `Fourteen out of the 15.' Senator BRANDIS-No. One says there was a child in the water. Two say there was not. Six say they did not see a child in the water but do not claim to have seen the entire event. Seven do not even address the issue. Senator FAULKNER-So you were right, Sir Richard. CHAIR-Sir Richard, none of them say that they saw a child being thrown into the water. There is a range of other queries, which I will save for the debate internal to the committee, about the way that has been presented. But have you finished, because I want to go to Dr Uhr? Sir RICHARD PEEK-Yes. I will not speak again, Mr Chairman. Dr UHR-From the public's point of view, maybe there are two issues that are worth separating here, because the public may well get something of value out of this inquiry, although I go back to Hugh's initial comment, that maybe the inquiry is part of the problem. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1217 Senator FERGUSON-We would agree. Senator MASON-But we are glad it happened! Dr UHR-There are two issues. One is the integrity of Defence intelligence. We have spent the last 20 minutes or so looking at how Defence satisfies itself in relation to the integrity of its own intelligence. The other issue that the community is, I think, more keenly interested in is the integrity of public information. That is an issue that does not go to Defence practices, it goes to ministerial practices-how ministers themselves satisfy themselves that they are on top of a true and faithful story. It may be that the committee at this stage has more evidence in relation to dilemmas within Defence as to how it satisfies itself in relation to Defence intelligence, but can we start to open this inquiry up as to how ministers themselves satisfy themselves that they have got intelligence of integrity that they can divulge to the community at the time of an election? I think there is a duty on ministers themselves not to mislead the community. In fact, it is part of Prime Minister Howard's commendable ministerial code that ministers are under a duty and obligation not to mislead the community. So a companion question is: how do ministers satisfy themselves that they are not in a position to mislead the community? I am not sure of the solution to that. We have the Howard code, which, as I say, is commendable and puts an obligation on ministers to correct the public record in the event that they have tested the information that comes to them and found that it is wanting. I do not think we have had any evidence yet that ministers have been actively involved in testing advice that has come to them. We have lots of evidence before the committee-and I guess yesterday was the most colourful and dramatic sequence of evidence-where ministerial staff acting on behalf of ministers have, in a way, been acting as testers of evidence. But it has been more like cherry picking rather than testing-not subjecting advice to scrutiny to see whether it is ready for public information, but just picking and choosing those parts that they think are of partisan advantage to them. From the community's point of view, looking to this committee to try to take the issue forward, to exercise some leadership and to come up with some new rules or new structural elements that can help satisfy the community interest in integ- rity and government, where do we start looking? You have mentioned, Senator, that we have kind of evolved or are part of the Westminster system. The interesting thing is, by going back and looking at the UK, there are a range of new rules now in process that have come out initially through the Major conservative government, under Prime Minister Major, that have put a whole new sweep of important obligations on ministerial staff not to engage in misleading information, to respect the integrity of the political neutrality of public servants, to abide by standards of practice for the dissemination and management of public information so that they actually do help ministers to respect their own obligation not to mislead the community. I think it is that element, the companion side-not just the integrity of Defence intelligence but the integrity of public information-that the committee might well start to explore, because it goes to the heart of ministerial and ministerial staffers' responsibilities, which I have not seen the committee yet engage with. Senator FAULKNER-Just following on from that, what we probably need to do today, Mr Chairman, is as much as we can try and focus on what lessons the witnesses at the table might CERTAIN MARITIME INCIDENT CMI 1218 SENATE-Select Thursday, 18 April 2002 have learnt from the experience of the `children overboard' incident as opposed to the detail of it. I think we are better off actually trying to focus on the sorts of recommendations this committee might make in terms of improving practice, be it either in the Defence Force or in the Public Service. I do hope, believe it or not, that the committee will be able to make some positive recommendations in those areas. I think nearly every witness at the table has mentioned at one point the role of ministerial staff and, drawing on the evidence we have about the role of ministerial staff in this incident, I think it is fair to say that more and more in the parliament and in Senate committees like this we are going to face a situation where, as I think Professor Weller has outlined very well, there have been developments in terms of ministerial offices in their size and the nature of their role and responsibilities and the like. I want to ask you how does the parliament deal with, how does the Senate deal with, what does appear to be a problem of a vacuum of accountability if you have, and I am trying to ask this without specific reference to any individual ministerial staffer, a situation-and it is a growing trend under, I would say, Labor and non-Labor administrations-where ministerial staff are having greater responsibility. In recent years we have seen a trend where there is actually executive responsibility, executive actions being exercised by ministerial staff. Traditionally, as you know, ministerial staff have not been brought before parliamentary committees of this kind. Is that still a reasonable approach for the Senate to take in relation to its own committee work? How do we deal with this growing problem of more activist ministerial staff, executive responsibility being exercised by ministerial staff, when we need to ensure that all actions-be they at the ministerial level, be they at the level of departments or officers-are subject to appropriate levels of accountability? Do you identify a problem of what I describe as a vacuum in accountability; you may care to use other terminology? Is it a problem, in your view? If it is a problem, how do you think committees like this and the parliament more generally should address it? Professor Weller might kick this off. Prof. WELLER-I think we have got a growing black hole: information in but you have no idea what happens to the information when it has gone in. In this case you have a number of cases where you have evidence that ministerial staff were given certain bits of information. At no stage do we know if that information was or was not passed on to the minister or the Prime Minister. So your findings seem to me to be coming to a situation where we know that the min- ister's office knew but we do not know if the minister knew, and we have absolutely no way of finding out. That is the first thing. CHAIR-Would it not be reasonable, though, to conclude that if the staff knew, so did the minister? Staff are the ears, eyes and often mouthpiece of the minister. The minister cannot divide the staff and the minister. Prof. WELLER-I do not think it is a reasonable assumption to make, because I think that the size of the ministerial staffs are becoming so large that the notion that all of them necessarily tell them does not necessarily follow. CHAIR-Size may make a difference in certain other areas, but does it make a difference here? The question I am really going to is: is the minister the individual or is the minister the corporate entity of the office? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1219 Prof. WELLER-It is the minister as the individual who is responsible to parliament. CHAIR-I know, but he has, under his wing, a number of people. Prof. WELLER-Yes. Senator FAULKNER-But, traditionally, in our system, he is also responsible for the actions of his staff, isn't he? Prof. WELLER-Yes, he is. Senator FAULKNER-That is the crucial point, isn't it? Prof. WELLER-I would agree, but we do not know at the moment to what stage people are making calculations that they do not want to pass the information on, but they should. Senator BRANDIS-But it does not follow, from the proposition that Senator Faulkner just put to you, that a minister is responsible for the actions of his staff, which I think in general we can accept. Nor does it follow from that proposition that a minister shall be deemed to know everything that his staff know. Prof. WELLER-But the assumption has always been that if you tell ministerial staff you are, de facto, telling the minister. I think that worked in a position where you had comparatively small offices. We now have a different situation. If you assume that ministerial staff are either acting without the authority of the minister-in other words, occasionally charging around a department demanding things without having the authority of the minister-or are choosing, for whatever reason, not to pass on that information to the minister-in classic terms, they think it is something that the minister could conveniently not know-then the ministerial staff should be certainly held accountable. Senator FAULKNER-I do not know if you agree with me on this, Professor Weller, but I happen to think the best accountability mechanism of the Australian parliamentary system is the Senate committee system. I think it has proved to be a very effective accountability mechanism. What is the interface between this accountability mechanism-whether you think it is a good one or not; I think it is the best we have got-and those actions of ministerial staff, whether they are known to a minister or not? Prof. WELLER-I am not sure I am interpreting your question correctly, but it would seem to me that if secretaries of departments can be asked to appear before your committee and asked what they told ministers then equally ministerial staff should be able to be called before the committee and asked what they told ministers, because we can no longer assume that telling a minister's staff is telling a minister. Senator FAULKNER-That is a very significant change in the way these accountability mechanisms have worked. Prof. WELLER-Yes. CERTAIN MARITIME INCIDENT CMI 1220 SENATE-Select Thursday, 18 April 2002 Senator BRANDIS-Are you recommending that that practice be adopted? Prof. WELLER-Having read the evidence in this case, the evidence leads me to say that, yes, it is desirable that these sorts of things- Senator BRANDIS-But there is no evidence about what the minister was told. Prof. WELLER-Precisely. But you have plenty of evidence about what ministerial staff were told and you do have evidence from the CDF about what he told the minister. CHAIR-There is some evidence that the minister was told, by Air Commodore Houston. Senator BRANDIS-You have quite rightly corrected me. Prof. WELLER-Before that it was told on two or three occasions. Possibly it was raised- and there is a point I would like to make on that at some stage- Senator FAULKNER-CDF and Acting CDF both do have contact, but I think we run the risk- Senator BRANDIS-Senator Faulkner, I want to pursue Professor Weller on this point. It is a very important conceptual point, and it is one of the main points of this morning's workshop. What in your judgment would be-and you would have to speak broadly-the consequences for public administration and ministerial decision making were the advice to ministers of departmental secretaries and ministerial staff the subject of scrutiny in a forum such as this? Prof. WELLER-A certain degree of care in the giving of advice in the first place, which I think may well be not a bad thing. Our problem at the moment is that you can call secretaries. You do ask them if they have talked to the minister and they at least tell you what they have done and how far they have gone in those sorts of circumstances. I have not seen the apparatus of government collapse as a consequence; indeed, the additional transparency I would regard as probably desirable. My feeling is that, most of the time, the degree of secrecy in this country is overdone. But that is probably a different point. Senator BRANDIS-I understand we are going to take a break shortly, but can I advertise to you, Professor Weller, and you too Ms Tiernan, for whom I have a question, that I want to come back to this question of transparency and the limits of transparency-in particular, the trade-off between transparency and accuracy. It seems to me that one of the subplots of this entire inquiry is that the government was, in a sense, too transparent with the first piece of information, according to its critics, by putting it into the public arena too early and before it could sufficiently verify it and then insufficiently transparent in putting out the contradictory material- CHAIR-At great political convenience. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1221 Senator BRANDIS-It seems to me that the whole point of this inquiry is to define the point at which and the sufficiency of the evidence available at which the initial report ought to have been contradicted. Senator FAULKNER-Mr Chairman, Professor Weller has commented on this, and maybe some of the other witnesses after the break might care to comment on what Senator Brandis has just raised, which is important, and also this general concept of what I describe as the vacuum of accountability. I think it would be helpful to hear some broader views on it and try, if we can, to concentrate on perhaps some of these broader issues we face as opposed to the committee members dredging through the specific incident, which is of course very important to our terms of reference but I think less important in relation to these witnesses. They have a wealth of knowledge, and it might be useful if we give them an opportunity to impart it to us. CHAIR-Yes. Can I say of Senator Brandis's questioning that you cannot divorce from that question that the rapid transmission of the first piece of evidence massively provided a windfall for the government and that the failure to provide the correcting evidence also massively provided a windfall for the government. Senator Mason interjecting- Senator Brandis interjecting- CHAIR-Order! This is a matter of contention between us. I sat quietly while you put your view and you will sit quietly while I put mine, thank you. An issue that I would like to take up with you, Professor-because I am not at all satisfied that I have it right-is that I think you made the remark earlier that a ministerial staffer may not tell a minister because that staffer then deems the minister need not know and, therefore, the staffer should be held accountable for making that decision. I wonder why you take that view, because it seems to me that the minister should be accountable. It is a reasonable possibility that a minister may tell a staffer, `There may be things I do not want to know or I do not want to know immediately,' so why should the staffer be the person in the gun if he carries out that instruction? It is five past 11. Let us take a break for 10 minutes. Senator MASON-I want to ask some questions, too. Senator FERGUSON-Can I ask a procedural question about some of these issues? CHAIR-We can ask some procedural questions. I make the point that essentially- Senator MASON-I want to ask about the pattern of conduct. CHAIR-I am speaking. I make the point that essentially I have given the call to Senator Brandis, who has been interrupted-in a discursive way-I admit. When we come back I am going to have to give the call to the opposition in some form, and obviously they may be interrupted discursively. But let us get on with- Senator FERGUSON-Can I ask a question on a procedural matter? CHAIR-You can. CERTAIN MARITIME INCIDENT CMI 1222 SENATE-Select Thursday, 18 April 2002 Senator FERGUSON-I think when you are having a roundtable discussion like this it is not a matter of whether the opposition, the government or anybody else has the call. Individual senators want to ask questions. In a roundtable, I think it is a different situation. Can I suggest that one of the things that is making things very difficult is that when people like Professor Weller are giving us an answer they are continually interrupted-you yourself are not without blame in this matter, and there are others who have interrupted as well. I have been sitting here trying to get some thread of thought from what someone is saying. They only get two sentences out and then they are interrupted. I would like to see the witnesses given the opportunity to finish their statement before they are interrupted. CHAIR-In that case, if I rule that way there will not be any interaction from up here. Senator FERGUSON-Correct. CHAIR-On the first point, whether I am in error or whether I am right, the fact is that I have basically given the call to Senator Brandis. In a sense of proportional fairness I think I should reverse the order at some stage so that no-one can later argue that, if you like, `the sides' did not get an opportunity to present their case. Senator FAULKNER-We can continue the argument over the tea break. Senator FERGUSON-There are no sides in a roundtable. I think we should all individually have a chance. CHAIR-Throughout you have insisted- Senator FAULKNER-For God's sake, let us have the tea break! CHAIR-that there are sides. Senator FERGUSON-We have not said there are sides. CHAIR-Yes, you have. Senator FERGUSON-This is a roundtable. CHAIR-Order! The committee will adjourn for 10 minutes. Proceedings suspended from 11.07 a.m. to 11.24 a.m. CHAIR-I want to do something constructive here this morning. It seems to me that it would be useful, in the next hour and 35 minutes that we have set aside for this discussion, if we were to put a framework of key subject headings around it and ask the witnesses to comment. I seek, firstly, an indication from the committee whether this is a reasonable procedure that we can adopt. It seems that the first question is: what were the failures-and some witnesses have answered this partly-and can we have an analysis of those failures? I have a number of subheadings which cover that. Some of the subjects we have already discussed are in that bracket. Secondly, there is a question about how serious this affair was. To put it in my terms: CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1223 was there a breach of duty of care in this matter, or was it an insignificant issue? The degree of seriousness is an important consideration. Before we suspend the proceedings I want to get on to comments from the witnesses about-where they think this is appropriate-proposals for remedying any defects that are identified. If we are to harvest from this session useful information for consideration in our report, the subject `proposals for remedying of defects' seems to me to be a useful one. The format I propose-subject to the committee's view-is that, in a segment of about half an hour, we talk, firstly, about an analysis of the failures; secondly, about how seriously to categorise this issue; and, thirdly, what are the proposed remedies for any defects that may be identified. Is that an acceptable procedure? Senator BRANDIS-In that context am I going to be allowed to pursue with Professor Weller and Ms Tiernan this question of transparency, its implications and its limitations? CHAIR-In the analysis of the failures a number of subheadings come to mind. One is the chain of command and the circumstances that applied in this case. Senator FAULKNER-We may have dealt with that. CHAIR-I think we have dealt with that. There is a question of the lack of transparency, crisis management questions, role of ministerial staff and the political-military relationship- those things. I think it is encompassed in that block. I would urge you, Senator Brandis, to pursue it within that `analysis of failures' block. Senator MASON-I have a question-I am not sure whether it is to be addressed to Professor Weller, Ms Tiernan or perhaps Professor Smith-about the distinction between, let us say, policy and operations with respect to the defence forces. CHAIR-That goes to the subject `what were the failures or not?', and I think that is valid. Senator MASON-Thank you. CHAIR-I want to adopt that format and I would like an indication of whether the committee agree at this stage. Senator FAULKNER-That is very sage. CHAIR-Are we agreed? Senator BRANDIS-As long as we can pursue our issues within that format, that is all. CHAIR-I would like to be able to suspend the proceedings at one o'clock having covered those three areas. There is seemingly no objection so let us proceed. Before we suspended the proceedings for morning tea I indicated that I would go to the opposition, but you have asked about finalising the point on your question, Senator Brandis. Perhaps I will ask Professor Weller now to answer that. I raised a question; he can answer that, too, and then we will click into this format. We have had the question on the record. CERTAIN MARITIME INCIDENT CMI 1224 SENATE-Select Thursday, 18 April 2002 Senator BRANDIS-Can I reput it, so that I can collect my own thoughts? Everybody said- CHAIR-This is not a line of examination; this is a discussion. Let us give it a discursive basis. Senator BRANDIS-It is a discussion. I will be as discursive as I could possibly be. Professor Weller and Ms Tiernan-but really any of the academic witnesses-everybody says that transparency is a value for public administration and governance generally. I think we would all accept that as an aspirational statement. Transparency ultimately, I suppose, means that the public knows about-and is in a position, on the basis of full information, critically to scrutinise-the working of government. That must, at least to some measure, include the working of the military. That, in turn, basically means it gets into the press or it becomes a matter of public discussion in the media. It seems to me, in this committee-you could almost treat it as a case study-that you have a situation in which a `special arrangement', to use Senator Faulkner's words, is made whereby a piece of information of public interest is made public very quickly, within about three or four hours, and that becomes a matter of public discussion. Subsequently, to a certain degree it is called into question. It is controversial how contestable that initial piece of information was and it is controversial how soon it became contestable, but ultimately it did become contestable. CHAIR-Can you come to the point, Senator Brandis? Senator BRANDIS-My point is this: what are the limitations on the obligation of transparency? In particular, might I invite you to speak to the trade-off between transparency- and, it seems to me, implicit in that is the need or the desirability to get matters of public concern swiftly into the public arena-and the other value of accuracy, and, more specifically from a public administration point of view, the procedures for verification of information before it becomes transparent. CHAIR-When you are answering, Professor Weller, could you answer the question that I as well put to you-an addendum to the question before we broke. I will not repeat it. And I put to you a discrete second question-I will not repeat it. Could you answer those as well? Prof. WELLER-Senator Brandis, you seem to be talking about, in a sense, two different things: one is transparency of ministerial staff and the other is transparency of the information flow which goes up and back to government. Senator BRANDIS-I am more concerned about the latter, I think. Prof. WELLER-Quite obviously, in any government process we are talking about speed. There is a massive number of bits of information which is flowing around. There is no way that that is going to be done on the public record from the beginning to the end-not least because the public is not actually interested in most of what is happening. Transparency in giving advice to ministers on the run and collecting information is a hypothetical that we are talking about, because most of the time it is happening on a day-to-day basis. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1225 The question that is implicit-or perhaps it is not, so I will make it implicit-is: should people be asked later what information they gave and why they gave it, as is happening in this committee, about a particular event? My answer to that is: probably yes, because it occurs very seldom on very small amounts of information and it is usually a long time by the time you meet after the event. I see nothing wrong in people being asked to give explanations for what they did about something some months before. It is not as though you are making policy in the public arena on this occasion. Senator BRANDIS-But you are talking about retrospective transparency, aren't you? Prof. WELLER-Yes. Senator BRANDIS-In other words, subsequent scrutiny and disclosure. But what about, as it were, transparency in real time? CHAIR-I am waiting for your objection, Senator Ferguson, about interrupting the witness and allowing them to complete. Prof. WELLER-Transparency in real time happens on some occasions and not on others. The United States has a much more open government than we have. Some of their stuff is secret, some is not. You are not going to have a cabinet meeting while sitting in front of a television set, discussing what you are going to do; if you are, it is a parliament and you have a meeting beforehand. Your question seems to me to suggest a sort of `Big Brother' approach to politics, where there is a camera in every room and we find out everything that happens. Senator BRANDIS-I am not recommending that course, I am merely inviting you to comment. Prof. WELLER-I do not think that is either feasible or a proposition that is likely to occur. The implicit thing is: should we have transparency after the event? Given the fact that it happens seldom-on a few occasions-I can see very little problem. My experience when I was writing a book on Malcolm Fraser was that he very generously adopted the British system, by which you could refresh your memory. He delegated his, in a sense, and allowed me to see all the cabinet documents for the whole of his government, which finished in 1983. I had access in 1985 to all the government documents, so it was a long time before the 30-year rule. What struck me about that at the time was how little of this would have made any stir if it had actually been made public. In other words, by the time you get six months or a year from the event, it seems to me you are doing no harm to the fabric of government to be able to call anyone in front of your committee, including ministerial staff. As for Senator Cook's question, `But surely ministers should be responsible?' indeed they should be if they have given that instruction, `I don't want to know about this.' I wonder sometimes, given the increasing size of ministerial staffs and-how should I put this?-the growing self-belief in ministerial staff about their own significance, if more and more they are making political judgments about what they think perhaps the minister does not want to know. We will not know this until we actually have them here. CHAIR-The arrogance of ministerial staff-is that what you are saying? CERTAIN MARITIME INCIDENT CMI 1226 SENATE-Select Thursday, 18 April 2002 Prof. WELLER-I was not saying that; those are your words, not mine. But they are certainly now telling members of the Public Service, `I am your boss.' They are not. That is entirely inappropriate activity on their part, and this sort of attitude suggests that you might also translate what is not in fact a minister's instruction. Given the size and the importance of the role they are playing, which has dramatically increased over 20 years, under both governments, it seems to me that accountability there would not go amiss. I think a bit of transparency on an event like this does our political system no harm whatsoever, and I welcome Senate inquiries of this sort. Ms TIERNAN-I would endorse everything that Pat has said there too. The other issue is some transparency before the event. What are people doing? What are their roles? Where are they exercising executive authority-where is that happening? We do not have a very good understanding of the kinds of roles, and they are quite blurred. Senator Mason wanted to raise the issue of policy versus operations. There is a blurring, and that is where you get problems- where people blur and where people do not understand the rules. Senator MASON-I will have a question on that later on, Ms Tiernan. Ms TIERNAN-You can. But the thing about rules is that, it is not only important for the public to understand them, it is also exceptionally important for people coming through those ministerial staff jobs who, my research tells me, get practically nothing in the way of induction and in the way of instructions about how you should behave or whatever. You learn as you go. There is enormous turnover in those jobs, we know; they are high pressure. People need a clear set of operating arrangements and expectations. That is transparency before the event, if you like. Senator BRANDIS-Ms Tiernan, would you like to speak to the issue of real-time transparency, as I have called it? CHAIR-Senator Brandis, I do want to rotate the call between members of this committee and I do want to hear from other experts. We could exhaustively pursue lines of questioning so that no-one else gets a go; I do not think that is fair and I do not intend to operate in that way. We will let Ms Tiernan complete her answer and then call Dr Uhr, Mr Podger-who is a relevant authority on this-and Professor Smith. We will take a quick comment from the members at the table, and then I intend to give the call for a moment to Senator Faulkner. So could you hang onto your question for the moment. Ms TIERNAN-I have concluded. Dr UHR-On Senator Brandis's question about transparency of real-time operations, I have distributed a clipping from today's Canberra Times of an article that I published on the Ponting affair in the UK. I think it does bear upon this. This was a dispute 20 years ago in the UK about lack of transparency in Defence, not dissimilar to what we have heard about through this committee. The issue of transparency that creatively came out of that genuine heartache in British public administration was not transparency of operations; it was transparency of roles or standards. The institutional response was to try to specify with a greater degree of public transparency what was expected of different actors in the policy chain of command, to use your phrase. The initial response was a codification of a set of appropriate public and credible CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1227 standards for the civil service. That had not been done before; it was a direct result of this. The second element of transparency was to try to do something for ministers as well, not just the in- house clubby cabinet rules but a public statement that came out under Major for the first time that has been elaborated under the current Prime Minister. The third one, which is, as I think I emphasised, as significant as any other, is transparency about the roles and standards to be expected of ministerial advisers. It is now a matter of some keen public inquiry in the UK to see whether the codification, or the attempt to articulate the precise set of rules and roles, is not only in the right direction but also going far enough down that road. I think that there you can actually get some purchase on transparency, which is not by looking at it as a set of expectations that we can video into public administration decision making, but we would at least have a better understanding of the standards against which we assess conduct by those who legitimately have some accountability about core Public Service ministers and ministerial staff. One could explore a lot further in that area. Mr PODGER-I would like to make a couple of points. First of all, as I have mentioned, I think the advice to public servants on their relationship with ministers' offices needs to be set out more clearly than we have done in the current guidelines on official conduct. That is some- thing that the commission is addressing at this time. The second point I want to raise is in rela- tion to Senator Brandis's point about whether there is a balance if you are going to open up ac- countability within a minister's office. Senator BRANDIS-That really is my point. Mr PODGER-There is an issue of balance here that needs to be debated, and it might be helpful-it is a matter for parliaments and governments to sort out-to remember a bit of history around the Public Service and ministers. There has been a shift over the last 25 years. For example, the Freedom of Information Act exposed many more of the deliberations of the Public Service. One of the concerns was whether this upset the important confidential relationship and trust between a minister and the Public Service. You have within the provisions of that act certain guidance as to what may not be made public for public interest reasons. But the interpretation of that has shifted over time. I also draw attention to the comment made by the chair in his introduction to this session, as he has made in every introduction to every session, which says that members of departments are not expected answer questions on policy. There is a general line that we do not answer questions on the policy advice we give, and we as public servants do not comment on policy. So you have a convention that puts some boundaries in order to preserve the important relationship that you have been highlighting and to allow a minister to be able to do his or her job well. The issue for the parliament will be: if there were to be an opening up of some accountabilities for ministerial officers, what are the bounds that would preserve the important roles of ministers' advisers- which ministers have to have-and that would be outside that public scrutiny? That is something for the parliament to consider carefully. Prof. SMITH-Picking up points made by the last three speakers, I would like to put forward two concrete suggestions, to prevent these sorts of problems arising rather than sorting out the mess afterwards. One is to pick up the suggestion of a code of conduct-a set of rules- for ministerial staffers in dealing with their particular agency. As I have stressed this morning, CERTAIN MARITIME INCIDENT CMI 1228 SENATE-Select Thursday, 18 April 2002 the Defence Force is a very specific agency of government, which is very unlike any other agency of government in the way it deals with the chain of command, the chain of reporting and the management of information at tactical and strategic levels. Staffers and ministers need to know this. As I have said before, the minister's office works very differently from headquarters. A code of conduct would set out exactly what the relationship was between staffers and military personnel. For instance, when a staffer rings a base commander, is the staffer speaking on behalf of the minister or not? Does he carry any authority or not? Does information have to be provided or not? Who is requesting the information? Those things could be set out in a code of conduct-a set of arrangements-taking particular account of the way the military does things. My second suggestion is that the military should be enabled to play a much greater role in providing public information than has been the case in the last eight to 10 months or so. We have this in some areas, of course: we get briefings from people in uniform on the operations in Afghanistan, and that is perfectly accepted. It is done well and professionally and due limits are observed. It strikes me as odd that you can trust a military person to deal with operations in Af- ghanistan but you cannot trust military people to talk about the interception of leaky boats off the northern coast of Australia, which is far less a threat to security or a matter of state. Having military people speak more regularly and more openly, within their areas of competence and subject to all the qualifications, would provide a kind of check on information or misinformation getting out of hand in the public arena. It would also raise the profile of the Defence Force in the community and perhaps do something to restore the pride that military people feel in the job that they are doing. Certainly, there has been a feeling that they have not been able to speak openly about the very difficult job that they are doing and have done extremely well. It may put them in difficult positions, but we need to trust our professionals- and it is probably less difficult for them than appearing before a Senate committee. Sir RICHARD PEEK-I want to add two points. Firstly, I do not want to comment on the discussion except to say that there is a practical consideration that I think needs to be addressed. Under the Naval Defence Act-which I imagine has been overtaken by an Australian naval or service defence act-you were required to obey the lawful commands of your superiors. Where do the ministerial advisers fit into this? I ask the question; I do not know the answer. Secondly, on the general question of muzzling in the services, I would like to record that in 1957-a long time ago-in the early days of television, I came back from a long period in the strategic reserve in Singapore and the Far East and received a signal from the Naval Board as I came up Port Phillip Bay, `The ABC will be coming on board to interview you on arrival.' There were no instructions, nothing. I was required to use my commonsense. We had had various things happen to us in the Far East which had not been publicised, and I was left to make up my mind as to whether they should be or not. The difference between then and now is quite enormous. Senator FAULKNER-The chair has asked us to look at some of the failures in relation to this incident and to take a broad perspective of it. One problem, it seems to me, is that there are a range of things that are not being committed to paper or to electronic mail-to writing, effectively-that might ordinarily have occurred in the past. I would like to hear witnesses comment on this. I will give you one or two examples. The People Smuggling Task Force was set up as a result of a corridor conversation between Mr Farmer, from the Department of CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1229 Immigration and Multicultural and Indigenous Affairs, and Mr Moore-Wilton, the Secretary of the Department of the Prime Minister and Cabinet. There are no terms of reference, but most importantly there is no paper trail. We know that Dr Hawke said earlier to this committee that he offered his resignation because he failed, in his view, to follow through some advice in relation to the photographs misrepresenting the `children overboard' incident; he did not place that in writing before Minister Reith. The minister's staff asked that other matters not be put in writing, so they were not put in writing either. Is this a growing pattern? We know that there has always been a major issue about the original telephonic communication between Commander Banks and Brigadier Silverstone. There is a lot more done on the telephone and a lot less put in writing, and there is a lot more corridor gossip or chat and the like, it seems to me. I wonder if our expert witnesses identify this as a problem. If they do, do they see any remedies, or is it just the fact that modern Australia, modern communication, means this is something we are going to have to get used to? CHAIR-Do you want to nominate someone? Senator FAULKNER-I would appreciate hearing from any of our guests who would care to comment. Dr UHR-One of the things that struck me about the inquiry is the fact that some people who received written advice complained and said that they were not properly briefed because they did not receive phone calls to remind them that they received the written advice. Others who have received phone calls said they had not been properly briefed because they had not received the written advice. I agree that something odd is happening. Senator FAULKNER-That is an important contribution. In Ms Halton's case, for example, there are two written communications that go to the Department of the Prime Minister and Cabinet that are well known: one, a chronology with a footnote; another, a brief from the Strategic Command. But she makes the point: `If it was important, I would have got a phone call.' Is that modern public service practice and, if it is, is it acceptable? Ought we be looking at the way we do business? Prof. WELLER-The third point seems to be that at times ministers announce that they have not been formally advised of something-so that a conversation with Brigadier Silverstone in Northern Command is not regarded as a formal advice. It is regarded as `just a conversation I had and I didn't take it very seriously'. Certainly, in relation to advice to ministers on significant issues it seems to me that we are slipping away from written advice to oral advice, but of course the response to that, I suspect, is going to be that that is the pace of modern government. Senator FAULKNER-Is written advice stronger and/or better? Prof. WELLER-Written advice gives you a trail of evidence that it is there, and I think it has got value for that reason. In the old times if you gave oral advice it tended to be a note for the file. Somebody would have made a note: `I discussed this with the minister and decided to do such and such' and it went on the file. I suspect that is not happening in terms of the paper trail that we occasionally talk about. I think that is regrettable too. Again, it is possibly down to the pace of government. CERTAIN MARITIME INCIDENT CMI 1230 SENATE-Select Thursday, 18 April 2002 Ms TIERNAN-I think it goes to two points: one is the pace and complexity of government; the other one is the proximity of other people to chase it up for you. So that with the entry of new actors and their proximity to ministers-and this interface with the public service has added an additional layer of pace there-if a minister is waiting for a written piece of advice there might be more judgment, or there might be more time for reflection, rather than making a decision right there and then. I think that is relevant to your question. Mr PODGER-The issue of record keeping has started to attract quite a lot of attention. It was mentioned in my predecessor's State of the service report last year. It has been mentioned a number of times by the Auditor-General in a report, which I am particularly conscious of, on MRI. Senator FAULKNER-I knew you were aware of it, Mr Podger. Mr PODGER-He said in that report: The level and standard of documentation considered necessary to support an administrative process is always a matter of judgment for management as part of an organisation's control environment. Nevertheless documentation is important for an agency to- and he lists a number of points around that. He goes on to say: The level and standard of documentation needs to match the circumstances. However, it would be expected that both the level and standard of documentation would increase as the consequences of decisions and actions increases. But I think the basic point of the pace of activity has had an impact on the way we document matters and the service has yet to fully respond to that process. Senator FAULKNER-What about Dr Uhr's point, which seems to be very valid, where some people say, `I am not properly briefed if I don't get a phone call'-one witness has put to us the very strong view that if something is really serious you would get on the telephone-as opposed to the precisely different point of view that: `If the advice was to be taken seriously, and to be acted upon, it needed to be in writing.' As I say, one of our witnesses, Dr Hawke, the Secretary to the Department of Defence, offers his resignation on this very point. It seems to me that that really does highlight a very interesting conundrum for the Australian Public Service. Mr PODGER-I do not think there is a line which says that writing is more serious than a phone call; it depends on the circumstances. I can think of situations I have been in where the fact that I insisted on ringing a minister and speaking directly to the minister was, no doubt at all, then taken as: `The secretary is doing this directly; it is not coming by way of a minute from one of the first assistant secretaries through the process. It's saying, "Stop, we need to sort this out now."' And that was taken as very serious. On another one, a more complicated issue, the fact that it was put on paper and set out in a formal way makes it much more serious than just a conversation which tries to pick up the points quickly. I do not think there is a rule where you can say that a phone call is less important than a piece of paper; it does depend on the circumstances. Regarding the point that Professor Weller made about whether when you do have phone calls you write minutes for the file and have an audit trail, I think the service is finding some difficulty with some of those areas, given the pace of events. That is the issue that the Auditor CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1231 has raised, and I have to say it has also been raised by Archives people as well. There are a number of pieces of legislation that set the scene for record keeping. There are, by implication, the Public Service Act provisions on accountability, the FMA Act has got some specific requirements, the FOI Act, the Privacy Act, the Archives Act and so on, but I think the service is finding this quite a challenge at the moment. Prof. SMITH-I have two comments. One is that, again, you have to remember the special character of the military as regards operational matters. These often move very fast at tactical and higher levels, they rely often very much on verbal communications, there is no time to write things down-that would be a luxury. One of my worries about this whole process is that, at the end of the day, every last commander, every last corporal will worry that whatever he has said in a phone conversation will be cross-examined and interrogated at a later date, and that perhaps he or she had better write it down. Operationally, reports come after the event, as far as the military is concerned, where you sum up and then you report to your superior. Again, the fran- gibility of tactical information is important there. The second point is that the military have a rather different chain for dealing with correction of information-that is, the administrative chain rather than the chain of command. That is more leisured, as it were; there is time to investigate, to find out. Indeed, that was what happened, in effect, with Major General Powell's inquiry. It had time to talk to people, to assess information and it did of course reach a number of conclusions, one of which was that no children had been thrown overboard, as I understand the report. I guess at that point the formal conclusion had been reached through the administrative chain. Senator FAULKNER-That is right, as far as it goes, but isn't the weakness that there is a misunderstanding, a mistake is made, a wrong report-whatever? Everyone acknowledges that. Defence acknowledge it and they recognise it within a matter of a couple of days, and efforts are made to fix it. How do they fix it? The traditional way. As I said before, I think, chain of command is a cornerstone of Defence operations. The information is passed up the chain of command, right through more junior officer levels, through Maritime Commander, COMAST Australia, ends up with CDF-and there it stays. By 11 October, nearly everyone in the senior echelons of the Defence Force knows there is no truth to allegations that children had been thrown overboard, and they certainly know that the photos that have been in the public arena do not depict such an event. So that information, I think, is largely non-controversial. The principle is that the correcting information is passed up the chain of command, it goes to the highest military point on the chain of command, which is CDF, and there it stays. Is that a weakness in the chain of command? Does that show a failure or not in this fundamental cornerstone of the way our Defence Force is operated? I have asked this question of some very senior military officers; they grapple with it, struggle with it and they admit that. It is not an easy matter to deal with because there is a mistake, whoever made it. There are serious attempts to fix it; it really does not work. Prof. SMITH-There was a trivial piece of tactical misinformation originally. I think, in the event, the Defence Force did try to correct that pretty well. I believe some verbal and written reports went up the chain of command. Somehow or other the urgency or the significance of that correction got lost. At exactly what level-perhaps the CDF, perhaps senior officers, CERTAIN MARITIME INCIDENT CMI 1232 SENATE-Select Thursday, 18 April 2002 perhaps given the complexity of the chain of command and the modifications that had been made to it- Senator FAULKNER-We know that through evidence. We know that Admiral Ritchie, COMAST, passes it to CDF. Prof. SMITH-Certainly there is a feeling that the CDF should have been able to pick up more rapidly and more strongly than he did that this was a politically significant piece of cor- rected information and he should have taken greater efforts to convey it to the minister. Whether his subordinate commander should also have made greater efforts to convince the CDF of the significance of this and the consequences of not setting the record straight is another question. Senator FERGUSON-They were of the view that it was not a significant issue at the time. Prof. SMITH-True. A lot of people say that it did not seem significant at the time. But, I think, one of the responsibilities of people in high office is to have an idea of what is going to be significant before the problem arises. Certainly senior officers are expected to have some political acumen, some political insight into what is important and what is not important, what the minister must know and must be told, even if it is inconvenient, and other information which is less important. I agree we know that at the time it was not highly significant, but we do expect people to make a judgment at that sort of level as to what might be significant. You could argue that even at the time the wider political significance was clearly important given the nature of the election campaign. How well you can expect senior military people to understand the political environment is another question. I think that at that sort of level you must expect some political knowledge and political judgment on their part. Prof. WELLER-I would like to follow up and go back to that comment I made earlier: if you want to get a message across, to state it once is desirable, twice is necessary, three times is suicidal. We do not seem at any of these stages in correcting to have gone to the second stage. People seem to have said it once and they were told to go away, or there was a side comment about going and checking out the facts. They do not seem to have come back, which it seems to me is a desirable stage. Let me put my second point hypothetically rather than in this specific case. If a secretary-for the sake of changing the argument-is advising his minister about an issue and he knows that the Prime Minister is also on public record about that incident, but he feels that the minister is not passing on the information to the Prime Minister, does that secretary not have an obligation to make sure that at least the Prime Minister and his department are aware that there are facts wrong and that there is severe doubt about what is happening? In those circumstances I would have thought the appropriate role for the secretary of such a department would be to ring the secretary of the Prime Minister's department and say, `We've got problems. We have severe doubts. The Prime Minister has been on the record that this happened. He did say "if the reports are correct". The reports are not correct.' It seems to me that the system again has failed in that case. If this stayed within the Department of Defence, the minister may or may not have been briefed, may not have appreciated the brief or may have just decided that he did not want to pass on the brief, but it seems to me that the department still has a responsibility to the government as a whole and particularly to the Prime Minister to make sure that the Prime Minister's department knows that something is wrong or there is a correction coming through about what has been said in those circumstances. In those senses I CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1233 would be critical of some of the advice that has been given up and whether or not the system worked. CHAIR-Under the rules we agreed before, we were now about to move on to an assessment from the panel about how serious this affair is. Senator FAULKNER-The next issue I would have raised would have been under that. CHAIR-I had a question which I will ask, but if we conclude our sections I will expect an answer if we have a bit of spare time before we rise. Senator FERGUSON-What was the first section, Mr Chairman? CHAIR-The analysis of the failures in this area. Senator FERGUSON-I have a question about inadequacies, but I can save it for later. CHAIR-Perhaps you should mention that question and we will come back to an answer to it if we have some time at the end. That is the process I am going to undertake now. My question is to Professor Smith and to Sir Richard. Before we lacerate ourselves too much about mistakes here, how much of this is related to the nature of the operation? This is not a straightforward classic military operation. At least as I apprehend it as a layman, this is more a sort of policing operation or a border security operation-a different class of operation to fighting a war. How much of these types of issues we are canvassing are related to that type of operation rather than the classic war-fighting operation for the military? Having put that on the record, do you want to put a question on the record, Senator? Senator FERGUSON-No, I will leave it until later. Senator MASON-I want to ask about the distinction between operation and policy and how problematic that is. CHAIR-Please articulate that question. Senator MASON-I think, Professor Smith, you launched this morning with your opening statement and you said that we should all be reluctant to embroil the ADF in the partisan political process-I think that is right. I think all of the committee would agree with that. Professor Weller and Ms Tiernan, I mentioned the distinction between operational and policy matters-that distinction being very important because you can ask questions about operational matters but not so much about policy matters. While I agree with that as a principle, why I think it is problematic is for the following reason. We had hours of evidence that we adduced- particularly from the government senators but right across the board-about a pattern of conduct by illegal immigrants. It was very serious conduct-much more serious than the Adelaide incident-where we actually had a child dropped overboard, threats of suicide and violence against naval staff. CHAIR-Senator Mason, you were asked to articulate your question. CERTAIN MARITIME INCIDENT CMI 1234 SENATE-Select Thursday, 18 April 2002 Senator MASON-We had all that evidence given. In a sense, while that is an operational is- sue, we asked questions as to what happened. We asked, `What did happen?' and evidence came from, in particular, Rear Admiral Smith about what did happen. That has a potentially inflam- matory political effect. Do people understand that? While the questions are operational, that has a potentially inflammatory political effect. Similarly, we asked the Department of Immigration and Multicultural and Indigenous Affairs questions about the pattern of illegal immigrants coming into this country. People, we learnt, flew into Kuala Lumpur and then surfed the people- smuggling pipeline into this country. Sure, it is operational and intelligence based, but I do not think there is any doubt that it has a potentially inflammatory or partisan political effect. I think we would probably agree on that. We might not agree on the facts, but we would certainly agree that it has a political effect. My question to you is: is there any measure to resolve that? CHAIR-Let me just note those as posted questions, and when we do a wrap-up at the end of the day you can make a remark about them and some of us might want to put some questions on notice. We will come to that. Senator FERGUSON-I would like to put a question on notice to ask the panel about the inadequacy of the process that we are going through. CHAIR-A comment on this inquiry? Senator FERGUSON-Yes, on the committee. CHAIR-One has already been made by Professor Smith, but that is a fair question. Senator FERGUSON-I want to follow up his opening statement. CHAIR-Okay. As we agreed earlier, I will put some questions to the panel. How do we assess the seriousness of this affair or what I might term the `duty of care' of senior public servants in these circumstances and the responsibility on them-and this goes for the Defence Force as well-to get things right in the public interest? How serious is that responsibility and, out of a hierarchy of degrees of seriousness, what assessment would you make? That is the general heading. I ask the panel for comment. Prof. WELLER-Professor Smith said that, from the point of view of a military operation, the incident itself of whether a child was thrown overboard was trivial. A situation which is on the front page of a newspaper and then is disputed after the events seems to me to be not trivial. The fact it occurs in an election campaign makes it even less trivial. So it does seem of considerable significance-whether or not the other SIEV things happened-that we have a situation where the Australian population is told that this occurred. I might add that I was in Canada for much of that election campaign and this is the only event that the Canadian press reported about the Australian election campaign, so it was international in its significance. The impression we got was the complete Royal Australian Navy was tied up in picking up- Senator FERGUSON-You do not know how lucky you were, Professor, being in Canada for the election. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1235 Prof. WELLER-Yes, indeed. So it is not a trivial issue in the impact it has both on the po- litical system-on the election which is beyond this discussion-and on an assessment of the Public Service. The fact that, for whatever reason, corrections take a month to take place also does not seem to me to be a trivial issue. The fact that it takes four weeks before it breaks out into the open is a significant question about whether or not the advice the ministers were getting was going to be honest, comprehensive, accurate and timely. And the `timely' comes into this situation about this being advice that should have been given and should have been pressed home because it was significant. I do not think it is trivial when you are dealing with the man- agement of the media and when you are dealing with the management of military operations which in this case must go through the minister's office. I think that says something fairly im- portant about questions about how a political system ought to be operated and, again, particu- larly during an election campaign. So I think there are four or five really major issues about how we are governed and how the system operates which come out of what might initially be a tacti- cally insignificant question and an exercise in Chinese whispers so that threats to throw a child becomes a child becomes children by the time it reaches the media four hours later. On the question you are asking about the procedures of this committee- Senator FERGUSON-I have not actually asked it yet, but I will. CHAIR-It is on notice. Prof. WELLER-I will leave the answer to that one. Yes, I think this is a serious issue. I think it is an issue which goes-almost accidentally perhaps-to some very substantial questions about the operations of our government. Senator FERGUSON-Is it just as serious an issue that all of the other incidents that occurred during the election campaign were not told to the Australian public either? Is that just as serious? Prof. WELLER-I do not know enough about the other cases to know who was making the choices and who was informed about them. Senator FERGUSON-Read Hansard. Prof. WELLER-I have been reading Hansard. You keep me going-up all night. Senator FERGUSON-It would take us too long to explain. I am sorry, Mr Chair. CHAIR-We keep going all night too. Is there any other comment? Prof. SMITH-Picking up Senator Ferguson's point, it was certainly not the job of the Defence Force to inform the public. Senator FERGUSON-I understand that. Prof. SMITH-Indeed, there were quite specific instructions not to say anything to any- one- CERTAIN MARITIME INCIDENT CMI 1236 SENATE-Select Thursday, 18 April 2002 Senator FERGUSON-No, I understand that. Prof. SMITH-which I actually regard as rather unfortunate. Getting back to this question of how persistent you should be in correcting the minister: again, note that the Defence Force is trained to be apolitical, non-political. That is seen as absolutely essential-more so than in civilian departments. This makes it even more difficult for the military system-up to the CDF-to correct a minister or a Prime Minister in the course of an election campaign. So there is the reluctance of the military to correct the minister. Some people say that the correction should have been done-and persisted with at Admiral Barrie's level even more strongly than he apparently did-because it was an important question of misinformation about what the Defence Force had done and had witnessed. On the other hand, it was a very charged political situation. It was an election campaign. There may have been a sense that you would bypass Professor Weller's stage 1 and stage 2 and go straight to the suicidal level. Certainly, if you found that seeking to inform the minister through normal processes, which are not public, for all sorts of reasons did not work, whether you then have a duty to go public on that information is a step which any military person would regard with, I think, much greater concern than public servants. Again, we have to take note of the necessary apolitical, non-political, character of the military in all this. To try and prevent that sort of situation arising-which was due in part, it seems to me, to an unwillingness to listen to advice on the part of ministerial staffers and perhaps the minister and Prime Minister-puts the military in a very difficult position; if there is an apparent unwillingness to listen to advice and when correcting that advice firmly, even publicly, would even more deeply embroil the military in party politics. Senator FAULKNER-On the relationship between the government, as opposed to government, and Defence-and I draw a distinction between those-I have raised questions with two very senior Defence witnesses before this committee, Air Vice Marshal Houston and Admiral Barrie, about how they felt when the Prime Minister used what appeared to be a difference in their testimony to a Senate committee to basically ridicule in the House of Representatives a very senior member of the ADF. This is the torpedo/Exocet comment which no doubt you would be aware of. I would be interested if the admiral or you would care to comment on that. This is new ground in Australian politics, isn't it? That is the truth of the matter. We have never seen that sort of thing occur in the past. Are you able to say to the committee whether the extent of the politicisation we have seen is unprecedented? Prof. SMITH-I do not like the term `politicisation'. It is too vague and has too many connotations. I would focus on breaches of conventions of understandings in how you deal with the military. Certainly, one of those is that you do not exploit differences between individual military personnel. Frankly, I think the Prime Minister was quite wrong in exploiting the differences between the CDF and the Acting CDF. Whether or not the Prime Minister was correct in what he said in a factual sense, I think that is something that is simply not done. Senator BRANDIS-Why not? Prof. SMITH-Firstly, because the military work very much on a system of solidarity, trust and confidence amongst themselves and any attempt to draw out divisions and differences be- tween military people is undercutting that sense of solidarity. Secondly, because it puts some CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1237 people in the military on one political side and other people on a different political side in terms of public perceptions. Senator BRANDIS-But, on the public record, one senior military officer said one thing and another said a different thing. That difference was not one created by the Prime Minister, it was a difference that was on the public record. There is no criticism of them having a difference- people have different recollections of fact all the time, as we know from this inquiry. Much was made by the opposition of the first proposition because it suited their political agenda, and I do not criticise them for calling attention to it. The Prime Minister, in the House of Representatives, called attention to the fact that on the public record there was a difference between those two senior officers-and he did it with a bit of a rhetorical flourish, but that is basically in substance all he said. I am at a loss to see what is wrong with that. Prof. SMITH-I certainly agree that it was not simply the government but both sides that made something of this apparent difference between the Acting CDF and the CDF. My argument would be rather that both opposition and government should have exercised some restraint in this and not drawn out this difference, such as it was, between the two. Perhaps the Senate inquiry itself has been unfortunate in that it has, I guess, had to draw out that difference. Senator BRANDIS-Professor Smith- CHAIR-Just a minute, Senator Brandis. You have just walked back in and we have been going quite well. As soon as you are finished your comment, Professor Smith, the other two are I think in order Sir Richard Peek and Dr Uhr. Would you please complete your comment to the question. Prof. SMITH-To put it simply, people in the military and people in the general community could take from the Prime Minister's remarks the perception that Admiral Barrie was on the side of the government and Air Vice Marshal Houston was on the side of the opposition. I think that is a total misunderstanding, but it is one likely to gain currency. It is not going to improve the understanding of the general community about how the military works; it is not going to do any good for the morale of military personnel, who any day may find themselves quoted by one side or the other. Sir RICHARD PEEK-There are a couple of things. Firstly, my personal view of Air Marshal Houston is that he is top of the list. I would hazard a guess, from my experience, that the vast majority of people in the Navy think he did a very brave and wonderful thing. Secondly, you asked earlier on whether I would give some indication of what I thought about the difference between active service and coastguard service. CHAIR-Perhaps you could save that for your summary. Sir RICHARD PEEK-That was all I had to say. Dr UHR-We have your question, we have Senator Ferguson's anticipated question, and we have Senator Mason's anticipated question. We have about half an hour. Is that right? CERTAIN MARITIME INCIDENT CMI 1238 SENATE-Select Thursday, 18 April 2002 CHAIR-No. I will ask you before we close to summarise your points of view. The questions that some of us have articulated, you might comment on in your summary so that we have some feedback from you on them. Senator Ferguson interjecting- CHAIR-Very soon I want to go onto the remedies part. We are still in discussion about how serious an issue this was. Dr UHR-Just very briefly on yours, and I will hold back on the others. Yours was an issue about how fundamental this duty is not to mislead. To me, it is absolutely fundamental-not to democratic politics as such but to democratic governance. It is fundamental to all public officials in democratic governance, not just to public servants. If the committee were to focus on a set of duties not to mislead and confined those to public servants and left ministers and ministerial staff out of the loop, I think that would be a grave injustice to the gravity of the situation. The duty not to mislead is an obligation that sits on the shoulders of all public officials-ministers and ministerial staff, as well as public servants. CHAIR-Is there any member of the committee that wants to mention a question? Senator FERGUSON-We were talking about inadequacies. I want to talk about the process that we are going through and have gone through right from the start. I did recollect that Professor Smith, in his opening statement, talked about the inquiry, the way it was conducted and the fact that he felt that the serving Defence officers had done so well at this inquiry in their evidence. We would concur with that. He then raised his concerns that some of the questions had a political agenda. I think I have paraphrased you correctly, Professor Smith-correct me if I am wrong. I think it needs to be understood that, whether we like it or not, in the 10 years that I have been in the Senate there has not been a select committee formed that does not have a political agenda. The initial terms of reference were drawn up by the opposition and the Democrats without consultation with the government, which innately gives it a political agenda. So, when it comes to evidence that is given before us, it is only natural that opposition members of this committee will question along a certain line to try to gain some- CHAIR-Senator Ferguson, can you come to your question. Senator FERGUSON-Yes, I will; I will come to it very quickly-information they can use to discredit the government, and it is understandable that government senators will go as hard as they can to try to get information which will help the government's argument. When talking about politics being drawn into this inquiry, I am not sure that a Senate committee such as this is the best forum to find out which is the best way to deal with ministerial advisers and all of the other questions that have been raised this morning. This is by nature a political inquiry with a political agenda, and each one will pursue their own particular point of view for political advantage. I think we need to be clear about that. Maybe it is another forum that should be looking at whether or not ministerial advisers and others-public servants-should be acting in a different way. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1239 CHAIR-That may go to the next heading about possible remedies. Would the panel please take note of that question and comment on it in their summary. Are there any further questions on this that people want to mention now and which they would like the panel to comment on in their summary? Senator BRANDIS-Is this all we can do? I want to pursue a somewhat similar point to Senator Ferguson's. I would rather do it in dialogue with the witnesses, but am I limited to merely announcing the proposition that I want commentary on? Senator JACINTA COLLINS-I think Senator Brandis has had sufficient time so far. CHAIR-When we entered this session, we agreed that we would look at a number of topics. I invite the panel to comment on the remedies that they think should be applied. I think that is a constructive heading that is useful for our report. Senator BRANDIS-By seeking guidance and support. CHAIR-Perhaps we will go to that now. There may be some questions on that. In the time remaining to us, we will get a summary from the panel, and if there are additional questions we can take them. Again I look searchingly at the panel. Does anyone want to go first? Some of you have mentioned this already, so you do not need to go back over the ground that you have already mentioned other than to point to it. Given the consideration we have had of this, are there any particular proposals that you would like us to take on board for our report that might point to remedies in a situation like this? Ms TIERNAN-The clear one that is implicit to a lot of what other speakers on the panel are saying is the need to evolve institutional arrangements that are appropriate to the contemporary reality of government. The Public Service has evolved and has had its arrangements changed to accommodate new realities and new directions. The Members of Parliament Staff Act was passed in 1984 in a particular set of circumstances. It no longer provides an appropriate institutional framework for how the system is working. So an important one is to come up with institutional arrangements that are contemporary, appropriate and take account of the sorts of failures exposed by the case here. Prof. WELLER-First of all, the black hole of the ministerial staff, a code of conduct, a better set of guidelines, a better set of conditions, better lines of accountability and changing the convention that they cannot be called in front of Senate committees-a whole range of things- could be done in special circumstances. Being called before a Senate committee for a particular inquiry-not a fishing trip-goes to the question of confidentiality. The second question which I touched on at the beginning is the whole question of caretaker conventions-whether they need to be revamped and reconsidered to take into account what is happening during an election campaign. It might particularly relate to questions about media and media instructions that occur on those sorts of occasions. That might be opening a can of worms at the same time. If caretaker conventions do not apply until it is convenient that they apply, they become slightly questionable. You get everything out that you can between announcing the election and the day that the caretaker conventions start or should we just CERTAIN MARITIME INCIDENT CMI 1240 SENATE-Select Thursday, 18 April 2002 assume that in these sorts of occasions we will have very limited caretaker conventions and that it is an open house otherwise? CHAIR-Mr Podger, you indicated that some things are under consideration. Do you have anything additional to say or do you want to emphasise some of those earlier points? Mr PODGER-If I may first of all make a caveat: as Senator Ferguson said, this is by its nature a political process, as a lot of other things are. The Public Service and, indeed, the ADF have to accept that there is a political dimension to public administration. That is why I did not comment on the seriousness of the issue. I see that, in itself, as obviously an issue of political debate. Having said that, there are serious issues arising from this that require careful consideration by many players, and I would hope that this committee can help guide that as well. For us in the Public Service and Merit Protection Commission, we are looking very carefully at the area of the values and the code of conduct. We are articulating what it means so that it is not just charts on the wall. It is in fact meant to be implicit in chief executive instructions-a series of processes that agencies ought to have in place to make them real. We are also, in looking at that, particularly focusing on an issue from this inquiry: the public servant's relationship with a minister's office. That is an issue that I think we need to tease out a bit more. I have given some lines on that which give an indication of the sort of thinking going on in the commission. Another aspect of that is the record keeping. That is an area that the service is grappling with. I think there is some guidance coming through from the Auditor-General about that, which needs to be pursued a bit further within the service. The final one is about the minister's office itself and whether anything that corresponds to the sorts of things that apply to public servants ought to be in place. Exactly what they are is a matter for political consideration in this parliament-exactly what the bounds ought to be to get the balance right-but I think there would be some advantage for the system if those things were better articulated. CHAIR-Professor Smith, do you wish to comment? Prof. SMITH-Yes, I have two or three brief points. First, responding to Senator Ferguson's question, I certainly do not expect any parliamentary committee to be apolitical. I think, as Senator Ferguson himself implied- CHAIR-My first induction into this was the committee of inquiry into the conduct of a judge. Prof. SMITH-Yes. Senator Ferguson implied that the definition of a politician is someone who can find sides on a round table. Senator FAULKNER-Who is Sir Lancelot? Prof. SMITH-Is there such a thing? My argument is not that Senate committees should be apolitical but that we should be very reluctant to bring an essentially apolitical institution into this sort of political arena. It may be necessary on occasions-that is another question-but at CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1241 least we should be aware of the potential damage that is being done to the military when this happens. I am worried that a lot more damage has been done than has become apparent in hearings. This really leads me to emphasise the importance therefore of prevention of this happening. I made two suggestions earlier about the code of conduct-particularly in relation to understanding the military and, secondly, the greater role for the military in public information. Senator FAULKNER-But you would not suggest that the ADF or the Department of Defence should be beyond parliamentary accountability or accountability in the broad, would you? Prof. SMITH-No. I am not suggesting that. Senator FAULKNER-That is the fundamental tenet of our system. Prof. SMITH-What I am suggesting is that governments in particular, and to some extent oppositions, have to be very careful when they are dealing with the Defence Force. It is a national institution. It is not something that belongs to the government, though that the phrase has been around. It has been peddled by ministers and- Senator BRANDIS-But neither does the Commonwealth Public Service. Senator FAULKNER-I think Senator Brandis makes a good point: neither does the Australian Public Service. I am sure Mr Podger would quickly say that is the way it should be. Whether it is the way it operates is different. Prof. SMITH-What I am referring to are statements by ministers and, indeed, the Chief of Defence Force that, for example, the military belonged to the minister; the government owns the military; the government is the customer of the military. These are common phrases. They are in writing. I can cite you speeches by the CDF. I think that is a fundamentally misleading way of understanding government's relationship to the military. Senator BRANDIS-But nobody has said, Professor Smith-at least not so far as I am aware-that the government owns the military, or words to that effect. Senator FERGUSON-Not in this inquiry. Prof. SMITH-I am happy to look through my records and find some for you. CHAIR-What is often said, though, is that the government is the customer, or some such phrase. Prof. SMITH-That is certainly said. I will look through my records. Senator BRANDIS-That was said by somebody from the military. CHAIR-Not in this inquiry. CERTAIN MARITIME INCIDENT CMI 1242 SENATE-Select Thursday, 18 April 2002 Senator JACINTA COLLINS-Perhaps, Professor Smith, you can do that on notice. CHAIR-I will come to you in a minute. I think what you are saying, Professor, as I apprehend it, is that, in the conceptual debate about the role of the military and its relationship with the government, this is a phrase that increasingly lately has been occurring. Senator FERGUSON-No. I disagree with that-lately. How about for a long time? CHAIR-For a long time, perhaps. Senator FERGUSON-Like prior to 1996, I suspect. Senator BRANDIS-I want to pursue this point now, and it is the same point that Senator Faulkner raised and I think he and I are in agreement with each other about this. What you have exposed, Professor Smith-and also in some observations, Sir Richard, you made earlier in the morning it seemed to me you were addressing this topic-is the appropriate nature of parliamentary oversight of the military, and in particular the question of whether when a committee such as this, for instance, is given the task by the Senate of inquiring into a number of controversial events, which necessarily involves the making of judgments on the conduct of military officers in an operational and administrative situation, there is any different principle that the Senate or senators should adopt in undertaking that parliamentary oversight. I asked a lot of searching questions of Commander Banks, and Sir Richard said I should be taken out and shot! I take that in a good-natured way, as I said earlier this morning, but there does seem to be an implication in the minds of some that the military is less susceptible to parliamentary oversight, that its conduct and activities should be less readily questioned than other agencies or other parts of government. I must say, Professor Smith and Sir Richard, that that is not a proposition I readily accept. Would you care to comment on that? Prof. SMITH-Let me make clear what I am saying: I am not challenging the right of parliament to inquire at great depth into what the military do, but I am questioning the wisdom of it on all occasions. It is perhaps a little bit like parliamentary privilege; that is a very significant power and right but it needs to be used with care and discretion and a sense of responsibility. I am simply arguing that parliament, and the government for that matter, should accept that the military work in a different way. They have their own very strong chain of responsibility. It is very strict, and necessarily so for operational reasons. That has to be respected, but ultimately parliament can say, `You've been doing things wrong,' and there have been occasions when parliamentary committees have brought out problems within the military that the military did not- Senator Ferguson interjecting- Prof. SMITH-Yes, and there are others, too. Senator BRANDIS-Cut to the chase. Do you think there is a different rule for the military and the Public Service? CHAIR-Order! We can come back to that point. Please complete your remarks, Professor. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1243 Prof. SMITH-The basic rule is the same: parliament has the right. I do not challenge that. I am arguing that there are conventions and traditions that say to parliament and to government: `Be careful when you are handling the military. Think twice about putting them in the party political arena, because this will have all sorts of unfortunate consequences.' Getting back to an earlier point, perhaps one factor is the line that we have heard in recent years that the government owns the military; it owns Defence-and I will find chapter and verse later for that sort of phrase. If the government is taking that line then that in itself puts the military into the political arena. If the government owns something then the opposition is going to query and question what it is doing with the property it owns. My argument is much more that the military is not owned by the government; it is certainly responsive and ultimately controlled by the government. My argument is that really the government has stewardship of the Defence Force. It can ultimately tell the Defence Force to do exactly what it wants done subject to international law and other legal limits. Senator BRANDIS-Would you take a question on notice? CHAIR-Hang on. Senator BRANDIS-There is a question on notice I want to notify. CHAIR-Please, but let us complete the evidence because I want to ask for comments from Dr Uhr and Sir Richard, and we are running out of time. Senator BRANDIS-Professor Smith, would you take this on notice, please? Prof. SMITH-Yes. Senator BRANDIS-Can you point to a single occasion on which any member of any Australian government in the last-however long you wish to go back-10 years has said the words that you have suggested-that is, that the government owns the military? I have never heard that said by any minister, Liberal or Labor. Prof. SMITH-I will happily take that on notice and provide you with the chapter and verse. CHAIR-You had some concluding remarks to make, Professor. I am going to give you a chance to wrap up an overview of comments. If you want to pause at this point then that is fine, but if you do want to complete then please do so. Prof. SMITH-Very briefly, we are talking about conventions, traditions, understandings- implicit and explicit-in the political-military relationship. I think these have to be treated with care. We do not simply look at legal authority or the parliamentary right of inquiry and say that that means the Defence Force is open slather, in practice. In principle, it is. The Defence Force can be called to account for anything by parliament. I am simply saying that the more you do that in the political context, the more damage you will do to the Defence Force, and the less ef- fective you will make it in operational terms. If people have to think that every move they make might be called to account before a parliamentary committee, then that will clog up operations, but it will also harm the Defence Force in terms of morale and dedication. Members of the CERTAIN MARITIME INCIDENT CMI 1244 SENATE-Select Thursday, 18 April 2002 military see themselves as serving the country. They join up to serve the country. They do not join up to serve a government. CHAIR-That is why the Governor-General is the commander-in-chief. Prof. SMITH-That symbolises the relationship, yes. Senator FERGUSON-Should we have not had this inquiry then, Professor Smith? Prof. SMITH-From the military point of view- CHAIR-Take that on notice. Senator FERGUSON-It is only yes or no. Prof. SMITH-From the military point of view, preferably not. CHAIR-Dr Uhr, do you have any comments to make, not necessarily on what we have just been discussing? The heading we are inviting you to make comments under is `Are there remedies that you should consider?' If there is something you would like us to consider in our report or if there is something else that has been said, please weave that into your remarks. Dr UHR-Can I just add two items to the list of remedies. I think the remedies on the list that you already have, coming from the right, have been excellent ones and I endorse all of them and am happy to help specify them if you want. Of the two that I would suggest, one is a `below decks' remedy and one is an `above decks' remedy. I do not think they have been mentioned yet, certainly not today. One is a kind of specific framework to help people in the Public Service manage public information, manage media. We have general codes of conduct; we do not have anything like the UK guidelines on information management by public servants. I think that is an issue that has come out of here that has been quite painful to Defence-that they have not had enough advice within the system as to how to manage media, particularly when there are other players in the media management game. I suspect there is a kind of subset of Public Service professionalism dealing with media management that we need to perhaps acknowledge and treasure by giving them a more specific framework. The `above decks' remedy is again something that has not been mentioned today, although I think it came up earlier in the inquiry, and it involves post-employment rules for ministers. This is just another aspect of the ethics-in-government regime. I do not know whether you have enough evidence on it to incorporate it, but there is a heap of comparative material that illustrates dramatically Australia's distinctiveness in not having anything there that can add to the public credibility of ministers after they leave ministerial office. CHAIR-Thank you very much. Sir Richard, do you have any suggestions to make as to what we should do? Sir RICHARD PEEK-I have three suggestions, Mr Chairman. One can be done, the other two I think are impossible. The first one, that can be done: I believe the reporting system of CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1245 incidents should be the same sort of reporting that we had from East Timor, where the commanding general was communicating directly with the government and with the press. It worked splendidly, I thought-I do not know about everybody else. The impossible ones are: I would like to improve the integrity of not only the parliament but the bureaucrats and, certainly, the ministerial advisers. The third one, which is obviously not possible, is to do something medically about defective memories! CHAIR-I have a couple of questions that I want to mention now because I want to quickly go to inviting you to make concluding remarks. If there is anything that you think that you ought to bring to our attention and you have not had an opportunity to do so, then, following the discussion we have had, you can make a summary. But answer as well, if you would not mind, where you think it is appropriate, the questions that have been, if you like, posted on notice. One of them is in `Proposals for remedying defects'. Admiral Barrie is on a two-year term, which means that sometimes his term straddles the life of a government and sometimes it does not. Is there a consideration here that, to remove the commander-in-chief from any suggestion that he is hostage to political fortune, his term should be longer? That is one question. Secondly, we had evidence before us that the former Minister for Defence, Mr Reith, was called back to conduct a performance assessment of the Secretary of the Department of Defence after the former minister had vacated his position for some time and when it was public knowledge that he was a lobbyist on defence issues for a private company to the Department of Defence. It seems to me that those are things that stand out as issues that trip my imagination as to areas to look for remedies. I have mentioned those questions, so in your summary, if you would not mind, when you are replying to all the other questions that have been posted- Senator FERGUSON-How did that relate to the inquiry? CHAIR-We have to make recommendations. You asked how it relates to the inquiry. It goes to the general area of the allegation-I put it no higher than that at the moment-of politicisation. With respect to the terms of secretaries of departments, if you have a four-year term and you are coming up to an election, you know your job is secure after the election. If you have to face a renewal of your contract before the election, maybe-so the argument goes- there is a degree of pressure that is applied as to whether you will be reappointed. It goes to those issues. I now ask committee members whether there are any other matters that they would like to draw to the panel's attention that they would like the panel to comment on when the panel does its concluding summary. Senator FERGUSON-I have a brief one for the academics here. I notice there has been a lot of talk about how quickly the defence forces should correct any mistaken information that might be put out into the public and how they are very quick to get the information out and very slow to correct any misinformation. I am just wondering how quickly academics do the same thing. CHAIR-That is a question they may wish to answer. It is a reasonably provocative question. Are there any other questions? CERTAIN MARITIME INCIDENT CMI 1246 SENATE-Select Thursday, 18 April 2002 Senator FAULKNER-I think Professor Smith raises an interesting point about Defence Force accountability. I prefer to use the terminology `Defence accountability', as we do have a diarchy here: a Department of Defence and the ADF. I suspect that Professor Smith is perhaps suggesting a different accountability approach for the two elements of the diarchy-I am not sure. I just wondered whether, in the concluding remarks, any of the witnesses would care to comment on the appropriateness or otherwise or thoroughness of accountability for Defence and the appropriateness of accountability mechanisms, including the Senate committee systems, such as select committees like this and the estimates committee which, historically, are taken very seriously by Defence-I used the term `Defence' deliberately-that is, the Department of Defence and the ADF. I would be interested to hear any views. Senator JACINTA COLLINS-Mine is a specific question for Dr Uhr. Could you elaborate a bit further on the UK code that you mentioned in your earlier comments, specifically with respect to how ministerial advisers are held accountable to the code? Senator FERGUSON-Was that the UK code, Senator Collins? CHAIR-Yes. Senator JACINTA COLLINS-It is one thing to have a code, but how they are then brought to account with respect to that code is the question. CHAIR-As there are no further questions, I now invite the panel to comment. We have posted a number of questions. I do not think I need to go back over them. I am sure you have taken note where you think it is appropriate and you can comment. Unless there is a volunteer to go first, I may start with you, Ms Tiernan. There appears not to be a volunteer. They have all stepped back. Ms TIERNAN-I will confine my comments to ministerial staff, which is my primary expertise. I think there is broad agreement among the academics here today that this case exposes important problems or dangers in the system of advice to ministers that exist in a model that has evolved beyond its institutional capacity. So my primary recommendation to you would be, as I said before, to evolve a new set of arrangements. But, if we are going to do that, we need to recognise that ministerial staffing is a very important political institution about which we know comparatively little. What we know about the Howard government's period in office is quite limited. There is a study currently under way about the Keating government, but there is this problem about how long it takes you to produce the material to leave it around. So I think an important priority is to develop our knowledge and understanding of the system. To do that you have to overcome a range of impediments which are primarily partisan to get access to that information. We also need to understand and explode some of the myths about ministerial staffing, the growth of which is because ministers need something different from what was there before to do their jobs effectively. So we need to have a good understanding of that, of what I call the demand side. We need to understand the supply side and the demand side-I think that is really important-and how advisory arrangements can be structured to be effective. I think we need to understand that, systemically, the arrangements are not working. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1247 Senator Ferguson, you said that Senate committees are not necessarily a very good forum in which to do that, and you may well be right. It is problematic to find a non-partisan forum in which to do it. In 1975 the government appointed the Royal Commission into Australian Government Administration. They looked at some of these vexed questions that people wanted to try to understand. I know there are a lot of royal commissions going on, and I do not know whether it is appropriate to go with a recommendation like that, but that certainly was a comprehensive exercise that brought everybody up to a level of understanding about what was going on and what was an appropriate way forward. Having had a lapse of 25 years, I think it may be time to do that again. CHAIR-Professor Weller, do you have any wrap-up comments? Prof. WELLER-Let me make a few, if I may. Academics are challenged: before we go to publication, we have peer reviews. So you have to submit work to other people. Senator MASON-By other academics, though, Professor. Prof. WELLER-I am sorry? Senator FERGUSON-By other academics. Prof. WELLER-Of course! Senator FERGUSON-You would not want to be tested by a parliamentary inquiry. Prof. WELLER-Oh, I would be quite happy to put any of my publications in front of you. The second thing about the focus of this inquiry, Senator Ferguson, is that the most significant changes in the United States government over the last 30 years came out of an investigation into a lousy little third-rate burglary by a highly partisan Senate committee that had the advantage that the President's staff could be called before it-and one remembers John Dean and others sitting there and Butterworth sort of saying, `Well, they were all taped.' It was partisan and it was aiming to impeach the President, but the consequence of that exercise was a greater understanding of the problems of the overmighty executive in the United States and a whole range of countervailing responses. On that basis, you can gather that I think exercises like this are probably a good thing. The fact that it is partisan does not worry me in the slightest. The investigation is up to the senators, but what comes out of it is a range of comments about the way the political system works, which you will probably never get by any other system. So, on that basis, I think inquiries like this actually serve a useful purpose even if you never get round to writing a unanimous report, which I have a shrewd suspicion you will not. Senator FERGUSON-Don't hold your breath. Senator BRANDIS-I think we might be unanimous on some issues. CERTAIN MARITIME INCIDENT CMI 1248 SENATE-Select Thursday, 18 April 2002 Prof. WELLER-You may be. So I think that it is a useful exercise, because estimates committees do not receive the attention from the press-nor even, I suspect, from the senators-that perhaps this sort of inquiry does. I would probably disagree with Professor Smith and think that the Defence Force and the Public Service are both, in a sense, part of the exercise of government and available to it. On that basis, let me quote the exact terms we used. Senator FAULKNER-From an outstanding publication, you were about to say. Prof. WELLER-Yes, it is from an outstanding publication; you must allow me to advertise. We say: No government `owns' the public service. It must remain a national asset that services the national interest, adding value to the directions set by the government of the day. The responsibility of any government must be to pass on to its successors a public service which is better able to meet the challenges of its time than the one it inherited. That is the current Prime Minister speaking in the Garran oration. Senator MASON-That is your book, is it? What is called, `Mandarins' or something? Prof. WELLER-Yes, that is my book. Senator BRANDIS-That is Professor Weller's new book on mandarins; it is an excellent book. Senator MASON-What is the retail price? Prof. WELLER-I do not know. However, there are times, I think, when various people in the political system should be reminded of the Prime Minister's statement that `nobody owns the public service'. And there are times when some ministerial staff should be reminded that they in particular do not own, and are not the boss of, the Public Service. I think one of the things to come out of this is a reminder that that does not necessarily happen. And I have a suspicion-since the minister is no longer a minister, so to speak-that the media arrangements that took place during the election about announcements in the media, on this occasion, also suggest that that was going a bit too far in the notion of who owns the Public Service. I think the media controls that were put in then were excessive. Then it raises the question that Senator Cook raised about term appointments. It is not so much the question of whether the Public Service is politicised in terms of people putting partisan people into positions of authority in the Public Service. My finding here-and I think it would certainly be the same with the Defence Force-is that there is very little evidence of that. The question is whether or not they are operating the Public Service in such a way that they seek to-`cow' is probably too strong a word-make nervous some of the people operating within the Public Service. There are shortening terms under which people are put on contract in the Public Service. Secretaries used to be on five-year contracts when they started, and could expect to survive at least the term of the parliament. Increasingly, they are being put on three- year contracts. The Public Service Commissioner, as a statutory officer-and I knew this before I came today, so this is not because I am sitting next to him-was put on a three-year contract, although the statutory office is usually a five-year contract. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1249 I think these are perverse trends which are going to move in the opposite direction to which I believe the Public Service should be going-which is to say, one which gives them a certain degree of security in exchange for the freedom to give advice. If they were not pushing the ad- vice in this particular case, it could well be because they felt that their positions were coming up for grabs some time in the not too distant future. I would prefer to see it in the slightly more distant future. We know from the Barratt case that, if anything goes wrong, you can get rid of people at the drop of a hat. I am not suggesting that that will happen all the time, but I do think that these are important issues-which I do not expect you to find an answer to. But I hope you will actually raise these questions about what sorts of advice might be given. I think they are fundamental to the nature of our government. Mr PODGER-I will not comment on the last couple of points raised by my colleague here beside me. I will make a comment, however, about this issue of accountability that has been raised, because it is a very important one. I was in the defence department myself for a period, a few years back, and I think the military are particularly sensitive to their apolitical professional position. I think the command structure adds to that culture in the organisation. But, as Dr Hawke, the Secretary of Defence, has said on a number of occasions-I think, quite rightly- accountability within the framework of ministerial responsibility to the government, parliament and public, which is the value that the Public Service has, applies also to the Defence Force. There may need to be some sensitivities, as suggested, but I think that Dr Hawke's pressing that point quite hard has actually been quite important as an issue. Senator BRANDIS-Are they oversensitive? Mr PODGER-They can be oversensitive, in my view, but I think Dr Hawke was feeling that this was an issue that needed to be pressed hard. That is not to say that it was trying to do it in contradiction to the other values, of being apolitical and professional. Those things are very clear. Senator BRANDIS-There is no necessary inconsistency between these values, of course. Mr PODGER-No. There can, at times, be some tension between them. My own experience has been that those in uniform are generally treated with greater respect by the government and by the parliament than some of us who do not have uniforms. CHAIR-Professor Smith, before I go to you, I should mention this. I referred to Admiral Barrie's two-year terms. I understand now that the arrangement in the military is that it is a three-year term, or that the military has moved for appointment of officers to three-year positions. Prof. SMITH-I believe Admiral Barrie was extended for a further two years-two original years and two more. CHAIR-Yes, he was. They were in blocks of two. Prof. SMITH-I have comments on three areas. Let me comment on one aspect of the question of how different the Defence Force is from the rest of the civilian Public Service. Only CERTAIN MARITIME INCIDENT CMI 1250 SENATE-Select Thursday, 18 April 2002 the military is a profession in itself. The people who work for the departments of education, or transport, or whatever they are called- CHAIR-What about Foreign Affairs, where we have diplomats? Prof. SMITH-Foreign Affairs' are not, in themselves, self-contained professions. There is only one military profession in the country. You cannot get out of the military and go and work for someone else, at least not without upsetting a lot of people-that is another question. I think that has to be recognised in the sense that, as a profession, the military have practices, they have criteria, ways of doing things that are unique to the military. The question of the diarchy was raised. I am a little concerned that in recent years too much pressure has been put on to bring the civilian element of Defence and the military element into a single team. Sure, a lot had to be done to align them and to get them working better together, but I get some sense that this has been pushed too far, so that, for example, you have civilian public servants in Defence seeking to issue orders to military people-I have had complaints from the military side about that sort of approach-simply because the public servant `outranks' the military person. That is a problem for the military. Secondly, the question of appointments was raised. Again, remember that the military is a distinct profession. Promotion, in theory, comes on the basis of military ability, military performance, qualities judged by military professionals amongst themselves. I certainly recognise that, at the most senior levels, it is proper for government to have some say in who is promoted to the most senior positions-though, even there, there is a purist view that it should be totally up to the military. I do not accept that. So I think the idea of making the senior appointments totally out of political hands is not workable. The rationale is that you need a Chief of Defence Force and senior commanders who can work with, and who are responsive to, the government of the day. I accept that. What has worried me, again, in recent years is the greater involvement of ministers in promotions down to the one-star level. I am reliably informed that this goes back at least to 1985, with a directive from the then defence minister. The problem with that is that you are talking about a relatively large number of officers who may feel that their promotion, even in the lower and middle levels, is sooner or later going to be dependent on their judgment from the political perspective. Finally, on the overall political-military relationship, let me just quote from a speech by Admiral Barrie on 10 August 2001, where he is talking about Defence's business from a number of perspectives. One of them is: Results to government as customer. This perspective reports on the results delivered to government as customer for the six Defence outputs. The second is: Results to government as owner. This perspective reports on the results delivered to government as Defence's `shareholder'- albeit `shareholder' in inverted commas. With all due respect to Admiral Barrie, who actually does disagree with me on this, I think that is not a sound view of the proper political-military relationship. I would argue that it is more a relationship of stewardship, of trusteeship by the government, which certainly has total control of the military, but with that total control there CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1251 comes the duty to deal with that stewardship with regard to conventions, traditions that seek to keep the military out of the party political arena. They do not always do that; sometimes it is necessary for political involvement to take place, sometimes that can produce good results. Senator BRANDIS-Doesn't that beg the question, though, when a military event becomes the subject of a dispute between the government and the opposition? CHAIR-In answering that: you may not wish to comment, but I asked that earlier question about how much of this is related to a border protection type exercise as opposed to a war fighting exercise used by the military. Prof. SMITH-It is one of the fascinating questions of political science: when does something become political? The answer is: that is a political question. It does not always satisfy one's students. Senator BRANDIS-As the subject of a dispute between the government and the opposition, they would take it that it is political. Without foreclosing public debate between government and opposition of events occurring, including military events within the armed forces bailiwick, how can we possibly ever protect ourselves from the suggestion that it is being politicised? It is politicised necessarily to the extent to which it becomes the focus of a political debate-and, I would say, properly so in a democracy. Prof. SMITH-Yes, I would agree that a democracy, a parliament, has a right to look at anything the Defence Force does, to have inquiries and to question Defence Force people. What I am arguing is that that right should be exercised with care and with sensitivity to the way the military works and that both governments and oppositions should try to avoid what the Defence Force does becoming party political issues. It will happen on occasions; sometimes it may be necessary. What I am suggesting, though, is that both government and opposition be careful and try to minimise the extent to which that happens, because it does harm the Defence Force. This relates to the next point, in answer to Senator Cook, about the difference between essentially military or warlike operations and policing, law enforcement, constabulary type operations. By and large, governments have had the commonsense to stay out of warlike operations, partly through commonsense and perhaps partly through simple lack of access- lack of information. If things are happening in East Timor or in Afghanistan, governments are only going to hear about them through the normal chain of reporting, and I think that is a very good thing. When you are looking at law enforcement activities, clearly the potential for political entanglement is much greater and much more serious. Law enforcement is not only dealing with noncitizens on the high seas; potentially it is dealing with Australian citizens in situations of riots or civil disorder where the military may be called out, it is dealing with security questions, as at the Olympic Games, and it is dealing with security at events like CHOGM where the Air Force was authorised in advance to shoot down hijacked passenger aircraft. The potential for differences within the military or for issues or activities of the military to become political in those sorts of circumstances is very great. There is an argument, which I tend to agree with, that these sorts of roles of the military have been increasing and will go on increasing. The war on terrorism is not going to happen just in Afghanistan; it is going to hap- pen within Australia, at ports, airports and so on. More and more, the military are going to get CERTAIN MARITIME INCIDENT CMI 1252 SENATE-Select Thursday, 18 April 2002 entangled and given responsibilities in these areas. I heard only this morning that the US seems to be changing its traditional rule which says that its regular forces do not take part in what we would call aid to the civil power. It has been a longstanding practice-in fact, it is an act of Congress-that they do not take part in aid to the civil power. Senator BRANDIS-Correct me if I am wrong, but under the Australian Constitution isn't the commander-in-chief of the Australian defence forces the Governor-General, acting of course always on the advice of the Executive Council-in other words, on the advice of ministers? Prof. SMITH-Yes, that is correct. He is the commander-in-chief. In that capacity, the Governor-General has no executive or command power. It is essentially a symbolic relationship. CHAIR-I draw attention to the fact that we are 15 minutes over time. This time is coming out of the committee's lunch period. Can we try and complete the summary? Prof. SMITH-I will finish in a sentence. The fact that more military activities are likely to involve law enforcement policing operations which have political potential, shall we say, is all the stronger the reason to reinforce and re-establish those conventions and to get them respected by all parties-government, opposition, ministers and their staffers. That will, in future, serve to keep those sorts of issues, as far as possible, out of the political arena. Dr UHR-I am very keen to hear what Sir Richard has to say by way of concluding commentary, so I will not hold you up for very long. I have four points, two picking up opposition issues and two picking up government issues. The first is the issue that Senator Collins raised: what is so accountable about the UK code specified for their special advisers or ministerial staff? I would suggest three elements: the first is the fact that it is a specified public document that articulates into the other specified public document, the Civil Service Code-the fact that it is out there. Public focus is one element of public accountability so that we know what to expect of these classes of public officials. The second is that, in relation to ministerial staffers, their accountability in terms of their employment relationships is something that is managed by the Cabinet Secretary as the chief adviser to the Prime Minister. It is something that goes right to the heart of government. You can imagine the parallels that there would be here. The third element is that, in terms of public servants feeling that somehow they are getting an unfair deal and that the people with whom they are working, the ministerial staffers, are unaccountable and irresponsible in their conduct, they have a right of redress to the Public Service Commissioner-or the equivalent officer there as a central government agency that has a supervisory role. They are the three elements of accountability, none of which we have at all in relation to the workings of ministerial staff. Senator JACINTA COLLINS-But can they be called to appear? Dr UHR-No. Senator JACINTA COLLINS-Not in the UK parliament. Dr UHR-Not to my knowledge, no. Senator JACINTA COLLINS-I thought there was a recent test case on that. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1253 Dr UHR-It is a matter of lively public discussion now in the light- Senator JACINTA COLLINS-This is why I asked, and I was trying to work out if it related to the code-but we can establish that elsewhere. Dr UHR-I then pick up an issue that Senator Cook raised: is it inappropriate for former Minister Reith to be involved in the performance assessment of the civilian head of Defence? No. I would invite ministers to come back to the table to help assess the performance of those people they have supervised-except, as in the case of Senator Reith, if they are involved as an employee of an agency working directly with the department. There is no rule against former ministers being involved in the performance appraisal, and I would welcome their participation- CHAIR-A correction: it is Mr Reith, not Senator Reith. You may have insulted all of us, including Mr Reith, by calling him a senator. Dr UHR-The two-year rule that Canada has, and that the UK has, would prohibit the arrangements that he was involved in-not because it is inappropriate for a former minister to be involved but because somebody is in a conflicted role. Of the two government issues that have been dangled before me, one is Senator Mason's: is policy a no-go zone? If we are talking about public accountability, is policy something that is squeezed between politics on one side and operational matters on the other? Commissioner Podger drew attention earlier to a very valuable 1996 document released by the current Prime Minister called Ethical Standards and Values in the Australian Public Service. Included in that is a kind of open acknowledgment that public officials-public servants-have an obligation, in terms of their accountability relationships to parliament, to discuss matters of policy. They have to deal with the factual and technical background of policy if called upon to do so. Policy is not a no-go zone for them. It is not something they can hide behind as a screen to say, `That policy is necessarily political and I will leave that to ministers.' They can be invited-and they routinely are at estimates committees and others-to address issues relating to the factual and technical background. My final point relates to Senator Ferguson's issue: what are the inadequacies, if any, of this particular inquiry? One of them you may have identified yourself in wondering aloud whether this was actually a political exercise and we should not be too pure in our expectations of it. If it is only a political exercise, that then sets a chain of expectations for ordinary citizens to come forward before the committee. In fact, it might repel them. If you were to model all Senate in- quiries as purely political exercises, after a while you would find that the ordinary citizens would have- Senator FERGUSON-Select committees, not necessarily all Senate committees. Dr UHR-Even select committees might have a great deal of reasonable based reluctance to participate. Of course, they are not purely political; they are political but they are something else. Senator BRANDIS-Professor Uhr, it is safer if they are forensic exercises, isn't it-that is, dedicated to finding facts? CERTAIN MARITIME INCIDENT CMI 1254 SENATE-Select Thursday, 18 April 2002 Dr UHR-If they can report, and report in terms of adding value to the process of government, certainly. Senator BRANDIS-But, even if they cannot-even if the committee divides in a party political way on the ultimate report-the process of inquiring and having publicly ventilated the facts through a process of forensic inquiry is surely itself a useful thing. Dr UHR-It ought to be, but it would not be if Senator Ferguson's idealised model of worst practice held. Senator BRANDIS-I am disagreeing with Senator Ferguson. CHAIR-I think he is agreeing with you. Dr UHR-One- Senator JACINTA COLLINS-Perhaps you can have your debate elsewhere. Dr UHR-last point: some of us sat maybe in this room a year ago looking at a whole package of bills relating to ethics and government- Senator MASON-I remember it very well. Dr UHR-and I think two of us, maybe three of us, were involved in that. That committee has never reported- Senator MASON-But it will, Dr Uhr. Dr UHR-and I think that is a more pressing failure of the committee process, because, again, it is going to- Senator BRANDIS-It is because they are giving very deliberative care to the report in deference to your submission, Professor. CHAIR-Do I detect defensiveness in the tone? Please finish your remarks, Dr Uhr. Dr UHR-The longer the time between evidence and reporting, the less keen witnesses will be to turn up next time, and I think that would be a shame. I turn with expectation to Sir Richard's comments. CHAIR-Thank you. Last, but not least, Sir Richard. Sir RICHARD PEEK-I will not keep you long. You asked first of all about the difference between coastguard duties and active service in the reporting line. Obviously, some of them are similar. With the present job they are doing up there, if they had damage or casualties, that would obviously be very secure indeed until the next of kin or the casualties were informed, and if there was damage you would not want to inform people smugglers in Indonesia that a ship CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1255 was out of action. For the rest, the operational reports are quite different. They must be secure, for a whole variety of reasons. One is electronic security, so that you cannot really broadcast what is happening until you are in harbour. There are a number of others, which I will not bore you with. I would like to comment on the idea of three- or two-year terms. I think the United States Navy have an excellent system. They do not have contracts; contracts are for civilian staff. They have a system in the United States, as I understand it, where the Commander in Chief appoints a Chief of Staff for three years, and he is there for three years unless he is impeached by both houses of parliament. When I was Chief of the Naval Staff, the President attempted to sack my colleague and was told to go jump in the lake, and he went on serving his three years. I am going to be a bit controversial, and I do not expect any response, but I obviously was wrong in my three years as Chief of the Naval Staff and in my earlier career in believing that the ultimate control of the armed forces rested with the Commander in Chief. I realise this is not generally accepted. It is certainly not accepted by the Secretary of the Department of Defence and, from what Senator Brandis has said, he does not accept it. As I understood it, Senator Brandis said that the Commander in Chief, in his role as Commander in Chief, was subject to the normal controls of parliament. In my reading of the Constitution, he is not. The restrictions on his control where he needs the authority of the executive council are laid out quite clearly, and one of them is not his duties as Commander in Chief. However, I believed when I was serving that in the long run the Commander in Chief was the man I obeyed. In practice, my belief was that, for normal life, I was responsible to the people of Australia, which meant parliament, not, I emphasise, the government. Had it ever occurred to me that there would be an occasion when I had a vital disagreement with the government I would have hoped there would have been enough men of honesty and integrity on the government side to the cross the floor of the parliament. It certainly never occurred to me that I had any responsibility for ministerial advisers. In fact, one military adviser tried one afternoon, in the presence of the defence minister, to attack my professional recommendation, and after a slight hiatus the defence minister was good enough to agree with me. CHAIR-I understand there are no questions that anyone wishes to put on notice. Thank you Ms Tiernan, Professor Weller, Mr Podger, Professor Smith, Dr Uhr and Sir Richard. That con- cludes this part of the hearing. You have helped us immensely and we appreciate it. Proceedings suspended from 1.26 p.m. to 2.03 p.m. CERTAIN MARITIME INCIDENT CMI 1256 SENATE-Select Thursday, 18 April 2002 BRYANT, Ms Jennifer, Assistant Secretary, Education and Immigration Branch, Department of the Prime Minister and Cabinet CHAIR-We welcome Ms Bryant to the witness table. Ms Bryant, the normal practice we engage in is to invite you to take an oath or an affirmation and, if at the beginning you have an opening statement to make or comments to offer, please do that. Then, if you would not mind, please make yourself available to take questions. Is that procedure okay with you? Ms Bryant-Yes, that is fine. I do have an opening statement. CHAIR-Please proceed with your opening statement. Ms Bryant-I would take this opportunity to provide some context for the conduct of my inquiry and, in particular, what I understood to be covered by my terms of reference and what was not covered. My terms of reference required me to conduct an examination of the advice provided by personnel involved in the sighting and handling of the SIEV4 vessel, how that advice was obtained and conveyed to authorities in Australia and the nature of advice provided to government ministers and how it was transmitted. I was also asked to make recommendations on how any shortcomings in the complexion and transmission of advice might be avoided in the future. On this basis I viewed my task as being to identify what advice was provided by the Public Service and the ADF to ministers, how that advice was transmitted and what efforts were made by the Public Service and the ADF to correct any misinformation. I believe that in preparing my report I did what I was asked to do: I examined what happened in sufficient detail to identify key failings in communication, and in particular I found that there was no evidence to support the advice to ministers that children were thrown into the water from SIEV4 on 7 October. There were differing recollections between Commander Banks and Brigadier Silverstone of what was said at the start of the information chain, and there was a lack of precision during the initial verbal transmission of information as to whether it was a child or children who had been thrown. There was rapid public release of information without confirmation or written advice. Photos were disseminated, sourced and cleared outside the established chain of command for Operation Relex, and that undermined the effectiveness of normal clearance processes. Efforts to alert Mr Reith's office to problems of misinterpretation were discounted by the office. Nevertheless, Mr Reith's office had been advised that the photos had been incorrectly attributed by 11 October. Defence did take appropriate steps to confirm the facts of the matter, but the outcomes of these investigations did not seem to have been effectively communicated through the chain of command. There were key communication failures within Defence, in that no written advice about the lack of veracity of the claims was provided to the minister and no advice was provided to the People Smuggling Task Force. Senior PM&C officials did not pursue details about the SIEV4 incident beyond the time when the photos were released on 10 October, because they perceived the issue to have been clarified. There was no evidence that PM&C or DIMIA officials provided advice to either the Prime Minister or Mr Ruddock that there was doubt about the veracity of the original claims. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1257 While subsequent inquiries conducted by the estimates committee and this select committee have provided considerable additional detail and clarification in a number of areas, I submit that I have not seen anything to fundamentally challenge the findings that I have just outlined. Consistent with my understanding of my terms of reference, my recommendations then dealt exclusively with suggested improvements to information handling by the bureaucracy for the future. Doubtless, in the light of additional information, there are additional recommendations for action that might now be made in a number of areas. However, I believe the recommendations I did make remain apt and were appropriate, based on the evidence then available to me. I draw attention to the very limited time frame during which my inquiry was conducted in late December and early January. My work was very largely undertaken at the conclusion of Major General Powell's inquiry, with key Defence documents provided to me between 10 and 19 December. I was initially asked to report before Christmas, and then before the PM went on leave between Christmas and New Year it was finally settled that the report would be available for the Prime Minister on his return from leave on 21 January. Nonetheless the time frame was very tight. Although I received good cooperation from those whom I sought to interview, the leave commitments of various individuals at that time of year meant that I generally spoke to people only once and did not have the opportunity for extensive cross-checking. These time constraints also meant that I could not be comprehensive. I had to restrict the issues and the number of interviews that I could pursue. I therefore did not attempt to report exhaustively on the involvement or knowledge of individuals who did not, in my understanding, directly play a role in advising ministers or their officers. The format of my report is consistent with my understanding of my terms of reference. I made it explicit on page 2 of the executive summary and again on page 4 of the report itself that I was seeking to answer two key questions: namely, how ministers came to be misinformed about the incident and what efforts were made to correct any misinformation. The particular pieces of evidence cited in my report were those that addressed these two questions. Material that was not relevant to answering those two questions was not the text that I quoted in the report. Clearly the role of ministerial advisers in the transmission of advice to ministers is a key area of interest to this inquiry, and I wish to put on record my approach to this issue. Where the evidence available to me indicated officials had provided relevant advice-either initially or in subsequent efforts to correct misinformation-to ministerial advisers, I spoke to those advisers. My purpose in speaking to them was essentially to fulfil the second element of my terms of reference-that is, it was restricted to whether and how the bureaucratic processes were effective in informing him of the key facts as they became known or, put another way, I was looking to understand the nature of shortcomings in the collection and transmission of advice and what it was about either the content or the form of transmission of the advice that seemingly allowed the advice to be discounted or dismissed. I consider this emphasis was appropriate for a number of reasons. First, I believe the product of my report was, appropriately, recommendations that would address communication failings in various parts of the bureaucracy and help avoid similar problems in the future. Had it not been for those communication failings, this incident may never have taken on the dimensions that it has. Had, for example, formal advice in writing been provided to ministers correcting the CERTAIN MARITIME INCIDENT CMI 1258 SENATE-Select Thursday, 18 April 2002 facts of the matter, then the course of events may well have been different or, at the very least, the context and knowledge base for subsequent decisions or actions by ministers would have been clear. Second, as this morning's debate showed-and, forgive me, I did not watch every minute of it but kept a broad eye on the direction of it- CHAIR-This morning's televised proceedings seem to have been a bestseller in this building among the attendants, I am informed. Ms Bryant-I suspect it was a very interesting and novel approach. Second, as this morning's debate showed, the role and protocols for actions and information handling by ministerial staffers are fluid and ill-defined. I do not consider I was well placed to investigate and make recommendations about the complex interplay of legal, political and ethical considerations in this field. Consistent with this, I do not believe it was feasible for me to investigate the transmission of information or decision-making processes by ministers or within and between their offices. I will now make some final remarks on the process I followed. My investigation took place under general executive power and relied on the cooperation of individuals. Individuals were not on oath and were not compelled to tell me all that they knew. I considered it would be inappropriate simply to rely on the Defence report and therefore sought to review relevant documents and interview relevant people independently of the Defence inquiry-although I did, of course, have considerable regard to information provided by the Defence report in the course of my investigation. I also sought to undertake further inquiries in a number of areas identified by Major General Powell as possibly requiring further investigation. I sought to ensure processes I followed were procedurally fair whilst maintaining the probative value of the evidence I collected. I therefore kept a written record of interviews I conducted with various individuals. These individuals were afforded an opportunity to look at the records and were asked to amend or clarify them if they did not accurately reflect the tenor of our conversation and to sign the final records. Most individuals did this, but a few were on leave or had moved positions without doing so. In at least one instance I was orally advised by Defence Legal Services that the record was acceptable to the individual but I did not get a signed copy. However, I am satisfied the records are a true reflection of the evidence I collected. Where it seemed possible that the report would contain adverse comments about any person, I notified that person of the details and I gave them the opportunity to respond. I then sought to take account of their responses in finalising my report. The findings I did make were limited to matters I thought could be supported by the evidence, and I did not offer opinions about matters that were not founded in the evidence I collected. I am satisfied that, in conducting the inquiry, I acted independently and without fear or favour. I was not instructed by anyone as to whom I should interview, nor as to the form and content of my report. I was not motivated by political considerations in the undertaking of this work but sought to meet the requirements of my terms of reference to the best of my ability. CHAIR-Thank you, Ms Bryant. We have followed the practice of my giving the call to the various interests on this inquiry in rotational order, but I have now lost my way and I have forgotten who is due to get it next. People are pointing at you, Senator Faulkner. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1259 Senator FAULKNER-I do not mind, but could we just be clear about what the time frames are for questioning? CHAIR-We will have to adjourn at four. Senator FAULKNER-So how long does the opposition have the call for? There has been some indication at times from government senators that they do not intend to seek the call. I do not know what the situation is here. Senator FERGUSON-You start off, and I think there will be a considerable time. We have not got a lot of questions. Senator FAULKNER-Would it be reasonable to suggest that the call stays with opposition senators until three o'clock and then we will see how we are going? Senator FERGUSON-Yes, I am very happy with that. Senator FAULKNER-Obviously there will be a bit more time, but we can work it out then. CHAIR-You seem to have captured the mood of the table, so please proceed. Senator FAULKNER-Ms Bryant, thanks for your opening statement. My first question is very similar to the one I think I asked Ms Halton a couple of nights ago-it feels like a couple of weeks ago but I think it was only a couple of nights ago. Did you prepare your opening statement with the benefit of input from others? Ms Bryant-As you can probably tell by the text of this and my reference to the discussions this morning-I finished my typing of it at about midday so I was editing to the very last minute-I did show it to a colleague in the Social Policy Division only to get a view as to tone and so on. Whether that was appropriate- Senator FAULKNER-No, that is fair enough. I just think it is useful to understand this. Who was that colleague? Ms Bryant-That was David Webster again, Senator. Senator FAULKNER-My recollection is another witness followed a similar course of action. Ms Bryant-Yes. He is my immediate supervisor at the present time. Senator FAULKNER-I actually read in the Herald Sun that you are going to greener pastures-so congratulations. Ms Bryant-Yes, I am transferring. CERTAIN MARITIME INCIDENT CMI 1260 SENATE-Select Thursday, 18 April 2002 Senator FAULKNER-The Department of Immigration and Multicultural and Indigenous Affairs, I think. Ms Bryant-That is correct. Senator FAULKNER-That is good. Ms Bryant, you have given evidence before the Senate estimates committee and, of course, you are about to give evidence to this committee. For either of those exercises, have you again had the benefit of advice from colleagues? I am not talking about those outside the Public Service or government, just so you understand the way in which I am defining `colleagues'. Have you had the benefit of input from colleagues about what approaches you might take on either occasion? Ms Bryant-As I have said to you, for example I have certainly tested the tone of my opening statement and so on. I have done that type of thing, but I think it would be accurate to say I have not received instructions or guidance. Senator FAULKNER-On tone and so forth, who have you sought counsel from? Ms Bryant-Really only Mr Webster. Senator FAULKNER-One of the things that strikes me about your witness statements- and I am sure you are aware now that your witness statements as well as General Powell's witness statements have been made available to this committee- Ms Bryant-Yes, I am. Senator FAULKNER-I do appreciate from your opening statement, and I understood before you made it, the fact that you were doing a lot of work over the Christmas vacation period, so I imagine you had a fairly ordinary and unrelaxed Christmas as a result, but as I understand it-and I want to be clear on this-at the time you sought those witness statements no staff member of the Prime Minister's office was interviewed by you in the preparation of your report? Ms Bryant-That is correct. Senator FAULKNER-Did you seek statements from Minister Reith and members of Minister Reith's staff? Ms Bryant-I did not directly seek a statement from Minister Reith. In the initial phase of the report I put to him part of my draft findings in the natural justice process to give him an opportunity to respond, but that was the only context in which I spoke to him. Senator FAULKNER-He had an opportunity to make a submission? Ms Bryant-I recorded the telephone conversation I had with him, yes. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1261 Senator FAULKNER-There was input from members of the then Minister for Defence's staff as well? Ms Bryant-Yes. Senator FAULKNER-Did you give consideration as to whether it would be appropriate, or otherwise, to seek any input from members of the Prime Minister's staff? Ms Bryant-As I have said in my opening statement, if particular witnesses told me they had spoken directly to an adviser-and in the case of those in Minister Reith's office various witnesses did say they had had contact with those advisers and, again, with Mr Ingram in Mr Ruddock's office, witnesses indicated they had had contact with him, but none of the bureaucratic witnesses, the Public Service or ADF personnel, I spoke to indicated that they had had contact with Mr Jordana; I am aware now that Ms Halton did, but at the time I was unaware of that-I did not consider it was feasible for me to investigate transmission of information or decision-making processes between officers. That was not what I thought it was possible or feasible for me to do. Senator FAULKNER-Given that you now know about that contact between Mr Jordana and Ms Halton, and given the process you adopted, if you had known that at that time would you have taken a similar course of action with Mr Jordana as you did with Mr Reith's staff. Is it fair for me to ask that? Ms Bryant-I believe it would have been consistent with my practice to do that. Senator FAULKNER-Had you known about the contact, you would have done that? Ms Bryant-I believe I probably would have interviewed Mr Jordana. It is, of course, impossible to say since I didn't at the time. Senator FAULKNER-It is also fair enough to say, isn't it, that Mr Jordana had other bureaucratic contacts? They may not have been in the Department of the Prime Minister and Cabinet, but let me give you an example: Mr Jones from the Office of National Assessments. Ms Bryant-I had not thought of Mr Jones, but I was aware that- Senator FAULKNER-My recollection is that you did not get a witness statement from Mr Jones. Ms Bryant-No. I interviewed Doug Kean from the ONA rather than Mr Jones, but I did, now that you bring that name to my attention, have the ONA minute, a declassified version of which has been provided to you. I did not see that as contact with Mr Jordana in the sense of correcting the misinformation. It was describing the provenance of the ONA report, but I did not see it as part of that and did not connect it with the need to interview Mr Jordana. Senator FAULKNER-I am trying to understand that background, because it is one of the things that have perplexed me as more information has been made available. As you would CERTAIN MARITIME INCIDENT CMI 1262 SENATE-Select Thursday, 18 April 2002 appreciate, with the effluxion of time it is a bit of a paper war on this committee, let me assure you. I imagine you faced a similar situation with your own report, because a lot of the paper is in fact generated by you. I can appreciate the challenges. But I was keen to understand whether you had adopted, if you like, a policy decision in relation to the Prime Minister's office or whether not having input from Mr Jordana may have been a result of the way the inquiry progressed or whatever the circumstances were. Ms Bryant-I think it was simply a result of the way it progressed. As I have said, I was basically trying to view everything through the frame of the questions I had set out to answer: how did the misinformation happen in the first place and what efforts were made to correct it? The minute to Mr Jordana from Mr Jones, which is in the evidence, I saw as being about the provenance of the ONA report, not about an effort to say it never happened or anything. There was nothing in that minute, in my mind, that was informing Mr Jordana that there was significant doubt. I did think the provenance was relevant and I commented on that in my report. But I chose the primary document addressed to the Prime Minister for that purpose because I thought it was the more weighty of the documents. Senator FAULKNER-Given that you did not have any formal input from any members of the Prime Minister's staff, did you have any informal input at all from them? Ms Bryant-I am not quite sure what you mean there. Senator FAULKNER-Clearly, and I am not critical of this, there are a number of people that you are working with quite closely on a day-to-day basis-take Ms Halton, for example, who is a direct superior. You have a formal relationship or association with her as a result of the preparation of your report. That is fair enough. I do not doubt that on a day-to-day basis you may have been seeing her, along with a range of other people who you would obviously, naturally, have contact with in the conduct of your own professional duties. What I am asking you is: understanding that formal input was not sought from prime ministerial staffers-I am not asking, `Did you seek prime ministerial staff input on an informal basis?'-was there any contact with prime ministerial staff going to the issues germane to this report? Ms Bryant-Prior to completion of my report I did not have any formal or informal discussions about the report with anyone in the Prime Minister's office. Senator FAULKNER-Does that mean that you did have contact after the report was completed? Ms Bryant-Yes. For example, the day before the tabling I was contacted by the office to ask for copies to be printed ready for tabling-that sort of thing. Senator FAULKNER-That is before the tabling in the House of Representatives? Ms Bryant-That is correct. That, I think, would have been the first contact I had from them. The first discussion about the report was in that immediate period. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1263 Senator FAULKNER-Fair enough. From the time that you kick off your report preparation through to the day before the tabling you definitely have no contact with prime ministerial staff. Is that what you are saying? Ms Bryant-That is correct. It may not have been the immediate day before-it might have been a couple of days before-but certainly it was within a day or two of that tabling. Senator FAULKNER-And the purpose of that was to get multiple copies of the report or something like that? Ms Bryant-Yes-to say that they proposed to do that and would I arrange to have copies available for that purpose. Senator FAULKNER-Did you have any other contact with PMO staff? Ms Bryant-Any other contact subsequently? Senator FAULKNER-Did you have any contact from that point onwards about the issues germane to the matters that this committee has been investigating? Ms Bryant-I think I was asked to provide an additional full set of the witness statements to the office on a separate occasion and I may have been asked a question-I cannot quite recall- about what some acronyms meant. I think I was asked for an explanation of NORCOM and CTJF, or whatever it was-sixty-three or whatever-and I explained they were synonymous. That is my recollection. Senator FAULKNER-But this is all what, telephone contact? Ms Bryant-Yes. Senator FAULKNER-So you did not at any point have any face-to-face discussions with any staffers from the Prime Minister's office? Ms Bryant-I did in the context of the estimates hearing, you will recall. I think I reported to the committee that evening that over the dinner break I had gone down to the office and, based on a question I think you had asked me in that context, had spoken to Mr Jordana-and so certainly I did on that occasion. Senator FAULKNER-Are those contacts you have outlined up until the estimates committee the only contacts you had? Ms Bryant-To the estimates committee, yes, certainly. Senator FAULKNER-So that was perhaps a request for additional witness statements, an explanation of acronyms and the follow-through of a question that you took on notice that I asked you at Senate estimates? CERTAIN MARITIME INCIDENT CMI 1264 SENATE-Select Thursday, 18 April 2002 Ms Bryant-Yes, and I came back and I think I recall at that time saying that I had spoken to Mr Jordana over the break and what his advice to me was. Senator FAULKNER-In those contacts, were any other matters pertaining to the `children overboard' incident raised with you? Ms Bryant-None is immediately springing to mind. Senator FAULKNER-In the lead-up to and at the time of the estimates committee, you only got a couple of telephonic communications about, is it fair to say, technical issues? Ms Bryant-Technical issues, points of clarification, yes. Senator FAULKNER-And one face-to-face discussion that was limited to following up a question on notice that- Ms Bryant-And it took place that evening of estimates, which I reported at the time. Senator FAULKNER-Who did you do the follow-up with? Ms Bryant-The one on the evening of the estimates, you are asking me about? Senator FAULKNER-Yes, sorry. Ms Bryant-I went down to the office and, as I recorded at the time, I spoke to Mr Jordana. I certainly saw others in the office, but it was Mr Jordana that I sought clarification from. Senator FAULKNER-But you only spoke to Mr Jordana? Ms Bryant-No. There were a number of advisers in the office and we nodded and spoke of the progress of the hearings in the course of the day. But it was Mr Jordana I sought the clarification from in response to the question you had asked me. Senator FAULKNER-What sort of progress of the hearings did you discuss with them? Ms Bryant-I think the main comments went to a lengthy day and a perception that I was handling it okay to that point-and I am a bit embarrassed to report that. That I was handling it okay to that point was, I think, the broad drift of the comments. It is a little embarrassing to put it like that. Senator FAULKNER-I am trying to understand this because, as you would appreciate- you may not accept it, but I am sure that you would appreciate it-the fact is that witness statements were not sought from Mr Jordana or anyone else in the Prime Minister's office. I am merely trying to understand- Ms Bryant-And on that occasion I was endeavouring to be helpful and fill in the gap, on the basis of the question you had asked me. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1265 Senator FAULKNER-In relation to these matters, either during or post the Senate estimates period, did you have any contact with prime ministerial staff on the matters that are germane to this committee's terms of reference at all? Ms Bryant-There was contact from the Prime Minister's office yesterday following the evidence of Commander Chatterton to ask further questions about the facts of that. That call did not come to me, but I was in the room and did overhear it on a telephone speaker. Senator FAULKNER-This relates to the matters he passed on to Commander Steffan King. Ms Bryant-Yes, that is correct. Senator FAULKNER-In fact, I was questioning him about this. As you appreciate, that was the source of the so-called tearoom gossip that we discussed on a previous occasion. Ms Bryant-That was new information to the office, obviously, so they did contact the department and ask questions about that. Senator FAULKNER-Which advisers in the Prime Minister's office have you spoken to about matters relating to, in the broad, children overboard? Ms Bryant-Mr Jordana, obviously, as we have already noted. The contact yesterday was with Mr Nutt. I think the earlier requests were principally from him as well in terms of points of clarification and copies of documents and so on. Sorry, Senator, I recall a conversation with Mr Nutt. He did ask me about Mr Scrafton's witness statement. Senator FAULKNER-Who did that? I missed that. Ms Bryant-Mr Nutt did ask me about Mr Scrafton's witness statement. I said to him that basically all I knew was what was recorded in the witness statement. Senator FAULKNER-When did that contact occur? Ms Bryant-I cannot recall precisely. I would have said maybe the third week of March-a little before the commencement of these hearings when it appeared I could have been a witness early on, is my recollection. I do not recall an actual date. Senator FAULKNER-What was that about? What was Mr Nutt's interest in Mr Scrafton's witness statement? Ms Bryant-His interest, as you might appreciate, was with the second or third paragraph of that statement, which said that Mr Scrafton was `aware of discussions between Mr Reith's office, the Prime Minister's office and the Prime Minister, which he could not discuss'. Senator FAULKNER-I will just turn it up. I have it in front of me. Which paragraph was that? CERTAIN MARITIME INCIDENT CMI 1266 SENATE-Select Thursday, 18 April 2002 Ms Bryant-The second substantive paragraph. Senator FAULKNER-It states: Mr Scrafton stated that he had been involved in or aware of a number of discussions between Mr Reith's office and the Prime Minister's Office and the Prime Minister, which he could not discuss. Ms Bryant-He asked me about that statement. I said I saw it as an opening disclaimer or contextual statement. He did ask me whether I thought I should contact Mr Scrafton to confirm that with him. I said that I thought that would be imprudent and did not. I recall that conversation as well. Senator FAULKNER-I think you are right-it would have been imprudent and I am glad you did not. Ms Bryant-I have not had any contact with any of the ministerial staffers since taking their statements. Senator FAULKNER-Mr Scrafton, of course, is not a ministerial staffer. Ms Bryant-I have not had any contact with him either. Senator FAULKNER-I do accept that, but I am just saying he is no longer a ministerial staffer. He did not have that status when you took your witness statement from him, because that was dated 14 December. By that stage he was back in the department, wasn't he? Ms Bryant-Yes. And you will recall that I was not even clear at estimates whether he was a MOPS person. Senator FAULKNER-Yes. There was certainly no clarity about that for quite a while. That goes to whether he was a MOPS staffer when he was on the minister's staff, as you would be aware. So Mr Nutt seems pretty heavily involved in this, would that be right? Ms Bryant-I can gauge it only on the contacts I have reported to you. I really have no other idea. Senator FAULKNER-What was his concern about the third paragraph of Mr Scrafton's interview? Ms Bryant-I think he was asking whether I had any greater context, information or background I could give him about that. I informed him that I did not, that I had recorded the particular phrase in an endeavour to keep full and transparent records-as you would appreciate-and that I had seen it basically as a sort of opening disclaimer or contextual statement. Senator FAULKNER-So you are not aware whether he was asking about what Scrafton might have said over and above what was in the statement? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1267 Ms Bryant-That may have been what he was getting at, but he did not say that to me. Senator FAULKNER-Has Mr Scrafton said anything to you in any way that is not in the written statement? Ms Bryant-I do not believe so. As you would appreciate, I have endeavoured to make these pretty transparently complete. Senator FAULKNER-I am not suggesting that is not the case. Ms Bryant-And for the record, no. Senator FAULKNER-Given that the Prime Minister's senior staffer raises the matter with you, he has obviously got concerns about it or he would not raise it with you. What he has raised with you is a statement made in an interview Scrafton had with you, which says: Scrafton stated he had been involved in or aware of a number of discussions between Mr Reith's office and the Prime Minister's office and the Prime Minister which he could not discuss. This is germane to the point that I am talking about. I am asking you about contacts with the Prime Minister's office or, more broadly-without beating around the bush, because I don't want to be too cute on this-the knowledge that the Prime Minister's office may or may not have had on this issue. Senator JACINTA COLLINS-And the Prime Minister too. Senator FAULKNER-Or the Prime Minister. I assume you would not have had any discussions with the Prime Minister on this. Ms Bryant-When I went down there on the evening of the estimates he, among others, said hello to me and made some comments about the events of the day. I spoke to him in that context briefly. Senator FAULKNER-What were the comments the Prime Minister made to you about the events of the day? Ms Bryant-From recollection, the general passage of the estimates. I think I told him I intended to speak to Mr Jordana with a view to responding to your questions, and he acknowledged that. Senator FAULKNER-But the Prime Minister talked to you during your Senate estimates evidence about your evidence? Ms Bryant-No, I would not describe it as that. I informed him of my intention of speaking to Mr Jordana, but I did not see that as discussing the form of my evidence. Senator FAULKNER-We did not hear that from you before. So you spoke to the Prime Minister on the night of your- CERTAIN MARITIME INCIDENT CMI 1268 SENATE-Select Thursday, 18 April 2002 Ms Bryant-I did say that there were a number of others in the office that evening. Senator FAULKNER-The Prime Minister is a reasonably significant person to speak to. Ms Bryant-Sure. Senator FAULKNER-So the Prime Minister is one. Can we be precise about who you did speak to? Ms Bryant-I recall that evening seeing Mr Jordana and Mr Nutt. I spoke to Mr Hazell in the corridor. I nodded to Mr Sinodinos. I also recall a number of the female staff, assistants to the various advisers and so on. Senator FAULKNER-That is pretty heavy: Mr Howard, Mr Sinodinos, Mr Nutt and Mr Jordana, amongst others. Ms Bryant-It was a heavy day, Senator. Senator FAULKNER-I know that, Ms Bryant. I do appreciate that it was not every day. It is no day for me, so there you are. I know it was not every day, but I would like to understand the flavour of these discussions and the communication that you had. Ms Bryant-I think I have said that I was going to speak to Mr Jordana and seek clarification, in response to the question you had asked me, and I think I came back and made those remarks. As I recall, the question at the time was about the contact that Mr Jordana had with me on 7 November and what the purpose of that was. I think we had been discussing in the hearing that I had diary notes which indicated that he was looking for sit reps and Defence material, and I could not recall any particular context for that and went down and asked him what he had been seeking that material for and came back and reported to you that he had indicated to me that it was for the PM's Press Club address the next day. Senator FAULKNER-Did you have any discussions- Ms Bryant-Sorry, Senator, can I just add one other thought. Senator FAULKNER-Sure. Ms Bryant-The other thing I did, which I think I indicated-and I cannot remember to which of the above it was; one or more of them-is that I felt I needed to make clear to the committee, and that was agreed, that I was aware of Ms Halton's new advice. My recollection is that I also came back and commented on that. That was also part of that conversation. Senator FAULKNER-One of the important issues that, as you know, we are grappling with is to try to understand the extent to which there was knowledge of this matter by a number of ministerial officers. I think you are in a fairly unique position to be able to help us. I am sure you do not want to be in that position, and I can understand why not, but you were chosen to undertake the important responsibility of writing this report and you have probably had broader CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1269 and better contacts bureaucracy-wide-not only with civilian personnel but ADF personnel as well. You are in a unique position, I think, to be able to assist us with some of these inquiries. One of the issues at the moment that remains a matter for ongoing investigation is the extent of contact with the Prime Minister's office in the period from 7 October through to 10 November. We know about Mr Jordana's contact, and that is reported on. Above and beyond that particular contact, which is subject to report, are you aware of any advice going to the Prime Minister's office about the accuracy or otherwise of claims that (1) children were thrown overboard, (2) the photographs may not have represented such an incident and (3) the video may not have depicted such an incident? Ms Bryant-To take point 1, the veracity of the claims, I am not aware of any information going to the office that there was no truth to the claims. About the photographs, the only advice I am aware of now is the contact from Ms Halton to Mr Jordana. About the video, no contact from the Department of the Prime Minister and Cabinet, but obviously in the context of the inquiry the advice from Mr Scrafton to the Prime Minister was that the video was at best inconclusive. Senator FAULKNER-But did you think it was worth progressing this issue that Mr Nutt has kindly drawn our attention to in Mr Scrafton's statement about the number of discussions between Mr Reith's office and the Prime Minister's office and the Prime Minister, which he was not willing to discuss? Do you mean he was not willing to discuss them with you? Ms Bryant-I am slightly confused about your question. Are you asking me about what Mr Scrafton asked me or are you asking me about what Mr Nutt asked me? Senator FAULKNER-Mr Nutt asked you for further and better information about part of the record of interview with Mr Scrafton. That is right, isn't it? Ms Bryant-Yes. `Was there any further information?' Senator FAULKNER-He did that on 8 March 2002. Is that right? Ms Bryant-I cannot recall the date. I said it was in March; I thought it was probably about the third week. Senator FAULKNER-I must have misheard what you said. I apologise for that. Ms Bryant-I cannot be precise about the date. It was prior to the first hearing dates of this committee, when it was thought that I might appear early. Senator FAULKNER-Mr Nutt drew this to your attention in March. Mr Scrafton says in his statement he `can't discuss them'. Are you aware of any of the details of any contacts with the Prime Minister's office at all? CERTAIN MARITIME INCIDENT CMI 1270 SENATE-Select Thursday, 18 April 2002 Ms Bryant-None at all, Senator. In terms of the type of contact Mr Scrafton is referring to here, I have no more information than that, but I recorded the fact in the records, to be transparent. Senator JACINTA COLLINS-Ms Bryant, we will take one example-and it is only one example. Mr Scrafton tells us that he spoke to the Prime Minister on two occasions the night before the Press Club speech. You did not ask him, `Why did you need to speak to him twice?' Ms Bryant-No, I did not. Senator FAULKNER-You do in fact say in your opening statement, in the dot point just above the crosshead `Process-procedural fairness' on page 4: Consistent with this, I do not believe it was feasible for me to investigate the transmission of information or decision making processes by Ministers or within and between their offices. So you do make that point. This is a whole area that you are acknowledging and properly placing before this committee and saying that your report is silent on, aren't you? Ms Bryant-Correct. Senator FAULKNER-What I am doing, as I am sure you appreciate, is seeing if we can throw any light on it through this particular process. When you talked to the Prime Minister and senior members of the Prime Minister's staff on the evening of the estimates committee hearing, did any of those people indicate to you how you should approach your evidence at the Senate estimates committee hearing? Ms Bryant-No, I do not think they indicated to me how I should approach my evidence. My recollection is that it was more a case of my indicating to them that I felt I needed to come back and make certain points on the record. I made those points to them because I anticipated- I may even have anticipated wrongly-that they may have had some disquiet about that, but they did not pursue that with me and I indicated what I intended to say. Senator FAULKNER-I do not quite understand what you mean by `anticipated'. Ms Bryant-I was not clear whether the additional information from Ms Halton was something that they wanted on the record at that point, but I stated I believed I needed to have it transparently there. I could not recall the conversation with Mr Jordana and felt a need to try and be helpful, and I stated that to them. Senator FAULKNER-You did not seek advice from Ms Halton or Mr Moore-Wilton, your bureaucratic superiors, at the same time? Ms Bryant-Certainly not from Ms Halton. Mr Moore-Wilton and Mr Henderson were here at estimates. Senator FAULKNER-Why go to the Prime Minister's office for advice, as opposed to Mr Henderson? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1271 Ms Bryant-I did not go to them for advice. I went to the office because I was endeavouring to be helpful in providing more information in response to the question you had asked me. So I was not seeking advice. I intended to obtain additional information and endeavour to be of assistance and place matters on the record. I was not seeking advice. It was more in the nature of informing them that that was what I believed was necessary. Senator FAULKNER-No-one suggested to you how you might approach your evidence at the Senate estimates committee? Ms Bryant-I do not think that anyone tried to influence the fact that I intended to place those matters on the record. Senator FAULKNER-I did not say `influence'; I said `approach'. Ms Bryant-As you will recall, at the time I crafted some words which I read out in the room. I had given the flat presentation of those some thought, but I do not think people sought to dictate an approach to me. Senator FAULKNER-Did either the Prime Minister or anyone from the Prime Minister's office indicate to you the importance and significance of the evidence that you were giving in relation to them or the government more generally? Ms Bryant-I do not recall that being particularly the case. I had a sense of the flatter the better, but I do not recall- Senator FAULKNER-Did you ask the Prime Minister, the Prime Minister's office or the Prime Minister's senior staff about appropriate lines for use at the Senate estimates committee? Ms Bryant-I did not ask them for appropriate lines for use at the Senate estimates committee. They were aware of what I would say when I came back here, but they did not provide the lines to me. Senator FAULKNER-Why were they aware of what you would say? Ms Bryant-Because I had written them down carefully in the fashion that you saw me read out at the time. Senator FAULKNER-You wrote them down when you were in the Prime Minister's office? Ms Bryant-I typed them up on the machine there, yes. Senator FAULKNER-Sorry, you typed them up. Your answers to the questions were typed up? Ms Bryant-I typed I think three dot points on a page. CERTAIN MARITIME INCIDENT CMI 1272 SENATE-Select Thursday, 18 April 2002 Senator FAULKNER-Then you ran those answers by the Prime Minister's staff? Ms Bryant-I certainly informed them of what I was going to say. They did not clear the piece of paper and they did not edit the piece of paper, but I certainly said, `I'm going to say these things.' Senator FAULKNER-Were those lines shown to Mr Howard? Ms Bryant-Not to my knowledge. Senator FAULKNER-Were they taken away? Ms Bryant-Not that I recall. Senator FAULKNER-Whose computer did you use? Ms Bryant-I could describe it to you geographically, but I do not think I know who it belongs to. Senator FAULKNER-If you do not know- Ms Bryant-It was sort of in the middle of the room up against a window. I think it was one of the assistant's. That is about as helpful as I can get. Senator FAULKNER-Mr Chairman, can I interrupt Ms Bryant for a moment. We indicated earlier that I would bat through until 3 o'clock and then seek some advice from other senators. I am obviously very keen to return to this area and will do so at some point. What is our status? Senator BRANDIS-The government senators are happy for Senator Faulkner to continue. CHAIR-Do you want to go to questions, Senator Bartlett? Senator BARTLETT-No. I am happy to give my time to Senator Faulkner as he is doing so well. CHAIR-Everyone is happy for you to continue, Senator Faulkner. Senator FERGUSON-That is because we are so generous. Senator FAULKNER-That is unusual. Was it only the written lines that were prepared in answer to the questions you took on notice over the dinner break in estimates committee that were discussed? Ms Bryant-Essentially, yes. Senator FAULKNER-Essentially, yes, or- CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1273 Ms Bryant-With respect to the Ms Halton evidence and the Mr Jordana element of the story-those two leaks, yes. Senator FAULKNER-Can you explain to the committee why it was important to discuss the Ms Halton issue with the Prime Minister's office? Ms Bryant-From recollection, it had come up possibly earlier in the hearings and I seem to recall someone had walked in an AAP report of question time in the House that afternoon. I would have to go back and double-check that. The Prime Minister had made some comments and I thought I needed to put on the record that I had knowledge of them as well. That was the context for doing that. Senator FAULKNER-Did the Prime Minister or his senior staff give you the impression of how important your evidence and your performance were at the Senate estimates committee from the point of view and the perspective of the government? Was that made clear to you? Ms Bryant-I do not think so. I did not have the sense that those things turned on me or on my performance, no. Senator BRANDIS-Presumably, any evidence you give the Senate estimates committee you regard as important- Ms Bryant-Exactly. Senator BRANDIS-and you would assume that senior ministers or, indeed, the Prime Minister would always regard evidence given by senior departmental officers to an estimates committee as important. Ms Bryant-Yes. I suppose I am also adding that I am not seeing this as being of stand-out importance over and above that normal and- Senator BRANDIS-I think that is the point I am trying to give you the opportunity to elicit. I know there is an obvious attraction in focusing on an incident to try to lend it a greater significance than it might bear in the great scheme of things, but was this a particular stand-out occasion for you or was it just what always happens with estimates-that is, you think carefully about your evidence, you give truthful and accurate evidence and you take that very seriously? Ms Bryant-It was stand-out in terms of its duration. Other than that, I did not have the sense that it was of more stand-out significance and of greater weight than evidence in- Senator FAULKNER-So you did not get the impression from your discussions with the Prime Minister and the Prime Minister's staff on that evening that this was an issue of high significance to the Prime Minister, his staff or the government? You did not have that impression? Ms Bryant-No, I did not think that turned on my performance. CERTAIN MARITIME INCIDENT CMI 1274 SENATE-Select Thursday, 18 April 2002 Senator FAULKNER-In your time in the Public Service, how many conversations have you had with the Prime Minister? Ms Bryant-I have briefed him on particular things on two or three occasions. Senator FAULKNER-In informal meetings? Ms Bryant-No, a specific purpose briefing. Senator FAULKNER-So how many one-to-one conversations have you had with the Prime Minister? Senator BRANDIS-She is not saying that this was a one-to-one conversation. Ms Bryant-I did not have a one-to-one conversation with him. Senator BRANDIS-On the occasion to which your questions were directed, the witness's answers earlier were that this was not a one-to-one conversation. Senator FAULKNER-Do you mean there were other staff present? Ms Bryant-I do not think I have ever had a one-to-one conversation with the Prime Minister. Senator FAULKNER-How many informal conversations outside the context of a formal briefing or meeting have you had with the Prime Minister? Ms Bryant-I have occasional ones of a minor nature. For example, I notetake in cabinet. As the PM is going through the cabinet suite he usually acknowledges me and we might exchange pleasantries or something. So `informal' of that sort. Senator FAULKNER-But it was very unusual, was it not, Ms Bryant? Ms Bryant-What was-sorry? Senator FAULKNER-That sort of contact with the Prime Minister-discussing Senate estimates evidence. Ms Bryant-I suppose it was unusual in the sense that I think it was probably the only time I have given any significant body of evidence to Senate estimates while I have been in the Department of the Prime Minister and Cabinet. Senator BRANDIS-This was a matter of great public note at the time. The dogs were barking in the street what was going on in the Senate estimates committee. Everybody in this building was talking about it. I must say, Ms Bryant, that it does not strike me as at all surprising that you would have a conversation about your evidence with anyone, for that matter, with whom you happened to be speaking. You were there on behalf of PM&C as a senior officer CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1275 of that department and you happened to be speaking to your portfolio minister-that is, the Prime Minister. Do you agree? Ms Bryant-I agree. It does not seem to have particular significance to me. Senator BRANDIS-And, of course, you are not for a moment suggesting, are you, Ms Bryant, that anybody sought to influence your evidence? Ms Bryant-I have already stated that quite explicitly. I did not feel anyone attempted to dictate the approach I should take. Senator FAULKNER-Have you ever had a discussion with the Prime Minister about the `children overboard' issue in general, other than the discussion you had on the night of the Senate estimates committee? Ms Bryant-About the `children overboard', no. Senator JACINTA COLLINS-Ms Bryant, I would like to go back one step and clarify a comment you made earlier which is not clear in my mind. You mentioned in your discussion with the Prime Minister's staff being-and I do not want to put words in your mouth; that is why I am asking you this-unclear on whether they might be concerned about your raising these matters in estimates. Why was that? Ms Bryant-Not so much raising them- Senator JACINTA COLLINS-That they might not want it on the record yet? Ms Bryant-No. Given that AAP information had come into the room and I did not know what had been said in question time, it was more in the sense of whether my approach was in any way different. It was more a concern from that respect, because I did not know what the Hansard transcript or anything was at that time. Senator JACINTA COLLINS-Why would that matter if the only thing you were doing was being a fearless and frank public servant at Senate estimates? Ms Bryant-I guess at its core it probably did not matter, and that is why I think nobody bothered to attempt to direct the approach I was taking. Senator MASON-Because we were all interested, Senator Collins, I would think. Senator JACINTA COLLINS-No. I am trying to get to the bottom of why Ms Bryant thought there might be a concern. It just appeared in your head? Ms Bryant-I might be a natural, born worrier, I think. I did not want to have inconsistency, because that would be something I would in general seek to avoid as a public servant. Senator JACINTA COLLINS-You did not want to have an inconsistency. CERTAIN MARITIME INCIDENT CMI 1276 SENATE-Select Thursday, 18 April 2002 Ms Bryant-I think that, with hindsight, the worry was in my mind and did not exist in reality. Senator FAULKNER-Did anyone on that night suggest to you that there had been other contacts, apart from the Jordana contact that we are aware of, with members of the Prime Minister's staff about the `children overboard' issue? Ms Bryant-None that I am aware of. I do not recall anything of that sort being discussed. As I said, my recollection of the conversation was limited to those two things we have already mentioned. Senator FAULKNER-So how long was your discussion in the Prime Minister's office that night? You typed up these three points. Ms Bryant-Maybe 10 or 15 minutes. I think it probably took me longer to find a machine. I spent some time saying, `Whose machine can I use? I would rather type this up; it is easier to read in the room.' I had spent some time hunting round, and I think the machine needed a password to log in and that sort of thing and it took me a few minutes to do that. Senator FAULKNER-Who suggested you type them up? Was that something you decided to do yourself? Ms Bryant-Yes. I wanted them typed because that is easier for me, in the same way that I type notes for myself. Senator FAULKNER-Who talked to you about the three points? Was there someone there when you typed them up, or did you do them on your own? Ms Bryant-As I have said, I think Mr Henderson, Mr Webster and Ms Belcher were the departmental officers who were there. Senator FAULKNER-And which prime ministerial staffers saw the three points? Ms Bryant-I recall Mr Sinodinos seeing them; I don't recall- Senator FAULKNER-What did Mr Sinodinos say to you? Ms Bryant-He read them and he said, `That's fine.' He did not edit them, alter them or suggest that they be done in any other way. Senator FAULKNER-So there were no changes? Ms Bryant-No. Senator BRANDIS-Mr Sinodinos did not contribute in advance of the three points being typed up by way of suggesting what they should be? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1277 Ms Bryant-No, not to my recollection. Senator FAULKNER-When did you have your conversation with Mr Howard? Was that before or after the three points being developed? Ms Bryant-That was before, because I informed him that I intended to go down the hall and speak to Mr Jordana and that I intended to acknowledge my knowledge of Ms Halton's evidence. Senator FAULKNER-So what did Mr Howard actually say to you? Ms Bryant-I think he just sort of noted that that was my intention. Senator FAULKNER-What was your intention? Ms Bryant-To go down the hall and speak to Mr Jordana. Senator FAULKNER-How did he know that you were intending to do it? Did you raise that with him? Did you just say, `I'm just here to do this,' or what? That seems like an end point of a conversation, not a beginning point. Ms Bryant-It was what the conversation was about. You had asked me what it was about. Senator FAULKNER-Were there other public servants present when you were having your conversation with the Prime Minister? Ms Bryant-I think Mr Moore-Wilton was present. Senator FAULKNER-Of course-was anyone else? Ms Bryant-Mr Henderson may have been present. Senator FAULKNER-What did Mr Moore-Wilton say? Ms Bryant-I do not recall him particularly saying anything. I do not recall him making any insert to the conversation. Senator FAULKNER-Did Mr Moore-Wilton make it clear to you how important your evidence at the Senate estimates committee was, from his perspective or the government's perspective or PM&C's perspective? Ms Bryant-No, he did not. Senator FAULKNER-He did not comment at all on your estimates appearance? CERTAIN MARITIME INCIDENT CMI 1278 SENATE-Select Thursday, 18 April 2002 Ms Bryant-No. He did say to me, prior to estimates, that he intended to be available himself and would endeavour to be as supportive to all departmental officers as he could be- but that is the only comment I recall him making. Senator FAULKNER-When you have your discussion with Mr Howard, Mr Moore-Wilton and possibly Mr Henderson are present? Ms Bryant-Correct. Senator FAULKNER-Where does this discussion take place? Ms Bryant-Just- Senator FAULKNER-In his office, or in a corridor? It does not matter; I do not think we would require a map of the office, but just in the broad. Ms Bryant-I think we made a couple of remarks in the corridor outside and may have briefly stepped into the PM's office and then- Senator FAULKNER-You stepped into the Prime Minister's office? Ms Bryant-There were five or six of us in a group there, so it seemed sensible. Senator FAULKNER-Mr Moore-Wilton was one of them? Ms Bryant-Correct. Senator FAULKNER-Mr Henderson was possibly one of them? Ms Bryant-To my memory, yes. Senator FAULKNER-Who else? Who are the five or six that for a moment step into the Prime Minister's office? Ms Bryant-The people I have mentioned before: Mr Sinodinos, Mr Nutt, me and the PM. Senator FAULKNER-Have you ever been in the Prime Minister's private office before? Ms Bryant-Yes. Senator FAULKNER-Mr Sinodinos, Mr Nutt, Mr Moore-Wilton, Mr Henderson. Anyone else? Ms Bryant-The PM, obviously, and me. Senator FAULKNER-Yes. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1279 Ms Bryant-I am just trying to mentally envisage people sitting around-no, I do not think so. I think that was it. As I said, I think I nodded to Mr Hazell in the corridor, but I do not recall him being in the room. Senator FAULKNER-Fair enough. So it is a brief- Ms Bryant-And Mr Jordana was not present. I am confident of that. Senator FAULKNER-Thank you. He was not present. Anyway, he was well represented. It is a pretty heavy group, isn't it? You have a bit of a conversation about these matters in the corridor and then you step into the Prime Minister's office. Would you have a feel for how long you might have been in the Prime Minister's office discussing `children overboard'? Ms Bryant-I do not recall precisely, but 10 minutes or- Senator FAULKNER-Ten minutes? Ms Bryant-five maybe. I am not certain, Senator. Senator FAULKNER-What was discussed, Ms Bryant? Ms Bryant-I think we have been over that, Senator, in that I intended to go and talk to Mr Jordana, because I think I did report that I had a diary note. I did not have any particular recollections myself. So it was things that were around that issue-not more detail of what I did not remember but the physical evidence that I did have in the form of my diary note. I thought, to respond to this question, I should talk to Mr Jordana and put this question to him and, in terms of Ms Halton, that I was at that point aware of her intended evidence because, as she said to you, she had rung me over the weekend. I think those sorts of things I had reported myself. Senator FAULKNER-So you are in the Prime Minister's private office for 10 minutes with the Prime Minister and half a dozen of what are basically, it is fair to say, political heavy hitters. I do not think any of them would object to such a description. They would probably all be proud to be so described. Senator MASON-They are departmental officers, Senator Faulkner. Senator FAULKNER-I would describe Mr Moore-Wilton as a political heavy hitter. Senator MASON-But some of the others-Mr Henderson? Senator FAULKNER-We do not know whether he was there or not. Ms Bryant-I think he was. Senator FAULKNER-I thought you were not certain. Ms Bryant-My memory is that- CERTAIN MARITIME INCIDENT CMI 1280 SENATE-Select Thursday, 18 April 2002 Senator BRANDIS-Just for my benefit, let me get this straight. You did not go specifically to see the Prime Minister, did you? Ms Bryant-No, I did not. Senator BRANDIS-You did not have an appointment with him? Ms Bryant-No, I did not. Senator FAULKNER-You were just dragged in! Senator BRANDIS-You bumped into him in the corridor when you were in the office seeing someone else? Ms Bryant-I suppose it was broadly like that. We retired to the office because I intended to go down and speak to Mr Jordana. I think the group of us all walked down there. I did not go in with an intent to talk to the Prime Minister. I did not envisage, as I said, that that would occur. Senator BRANDIS-I can see what Senator Faulkner, with his usual exquisite Thespian skill, is doing in trying to invest this great significance into the fact that you were in the Prime Minister's private office. The fact is that you went to the Prime Minister's suite of offices to see somebody else. Ms Bryant-Correct. Senator BRANDIS-You bumped into him in the corridor. Because it was a bit crowded in the corridor, you stepped into his private office, through that door there, for just a few minutes to continue the conversation. Senator MASON-So it was serendipity rather than conspiracy. Senator FAULKNER-How did you get so lucky, Ms Bryant! Ms Bryant-Some days it just happens like that. Senator FAULKNER-Well, he certainly would not have wanted me. I admit that. Ms Bryant-I did not have an appointment with the Prime Minister. I did not leave this room-was it this room?-at the time of estimates with any intention of seeing him. Senator JACINTA COLLINS-We do not think the intent was from your end, Ms Bryant. Ms Bryant-I had no awareness that it was likely to happen at all. I did not go there with that purpose. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1281 Senator FAULKNER-Do not worry, Ms Bryant. I am going to give Senator Brandis credit for improving at running interferences at committees like this, which is something that you learn to do early on in your- Senator FERGUSON-Like Senator Faulkner! Senator FAULKNER-I have done it myself at times. I would have to plead guilty to that. From time to time, senators do those sorts of things. Do not lose focus on the important issues at hand, Ms Bryant. I would like to go over with you what happened with Mr Moore-Wilton, Mr Henderson- who, by the way, I think it is fair to say is a senior public servant-Mr Sinodinis, Mr Nutt and the Prime Minister with you in the Prime Minister's office. I would like to go through in some detail what happened in the 10 minutes that you were inside that office, what you were told-to the best of your recollection, please-and who told you. I appreciate this was some time ago, but it was not that long ago. It was mid to late February. I expect that it is something you have a reasonable recollection of, but I am asking you, to the best of your ability and for the benefit of the committee, to provide the committee with all the detail of that discussion, please. Ms Bryant-I do not think I can tell you a great deal more than I have already said, and that is that a period of time was taken up with my indicating-because I think those in the office may not have been aware that I had the diary note-that I had no particular recollections of what Miles was asking me for at the time he contacted me on 7 November, because at the time it did not appear particularly significant. Senator FAULKNER-So the first part of the conversation was about Mr Jordana, was it? Ms Bryant-The first part of the conversation was that the whole thing had been triggered by your question and my belief that it may be of assistance if I asked Mr Jordana. Senator FAULKNER-It is the only thing in it that gives me any pleasure at all, Ms Bryant. But apart from that, it is triggered by my question, yes. Ms Bryant-I recall going through that I had a diary note and what the contents of that were. Senator FAULKNER-I know this but, for the purposes of the record as we work through this, what was the diary note about? Ms Bryant-The diary note was a brief, I think, three-line reference in my diary of 7 November which said, `Miles sit reps and Defence material Adelaide SIEV4' or something of that nature. I did not recall a particular context for that request or what it was about; it had not stuck in my memory. In response to that, I thought it would be helpful if I proposed to talk to Mr Jordana to ask him, in essence, what he was looking for the copies for because I have a note that he was looking, but I did not know why. Senator FAULKNER-Were you basically asking permission for that to occur? CERTAIN MARITIME INCIDENT CMI 1282 SENATE-Select Thursday, 18 April 2002 Ms Bryant-I did not see it as permission, but I suppose that, by default, perhaps it had that nature. I did not say, `Please may I go down the corridor and do that?' I said, `I intend to do that' and I was not contradicted in any way. I dare say I could have been and in that sense it would have become a permission circumstance. Senator FAULKNER-So that is the first part of the meeting, effectively going to what information could be provided to me in answer to a question you had taken on notice at a Senate estimates committee hearing earlier in the evening. That is right, isn't it, Ms Bryant? Ms Bryant-Yes, and I think we then talked about the separate events and the connection with Ms Halton's evidence. Senator FAULKNER-What was said about that? Ms Bryant-I think we went through the fact that they seemed to be separate but related events in that we had been looking for documents in response to Mr Jordana's request. In the process of looking for documents, we had not located much on our files and I had asked an officer in my branch to check with International whether they had Defence material in the Defence branch in International. In the course of those checks she had had contact with Ms Sidhu and had been informed that what was said to us was the tearoom gossip and that was the first time I had been aware of those comments that I had passed them on to Jane. I had not known until the lead-up to estimates and certainly after I had completed my report that she had had any contact with the PM but because I was now aware before estimates, I felt I had a responsibility to address that in the remarks I made. Senator FAULKNER-So what did you say about that issue-the tearoom gossip, so to speak? How did you address it? What did you say to that group of senior staffers, senior public servants and the Prime Minister? Ms Bryant-Senator, just as I have been relaying to you, it was more just the facts of the story as I knew them. It was not that it had been complete news to us on that day. Senator FAULKNER-On which day? Ms Bryant-On 7 November. It was the very first we had known and I said that was the very first we had had any sense there was any doubt. One comment of the PM's was that he expressed some surprise at this whole thing because he said, `You know, I had no knowledge of this.' So, in the context of me expressing surprise, he expressed surprise. Senator FAULKNER-What didn't he have knowledge of-the Sidhu incident? Ms Bryant-No, that he had no knowledge of the- Senator JACINTA COLLINS-That Miles was asking a question? Ms Bryant-No. He had no knowledge that there was any lack of veracity about the overall incident at all. It was in a context in which I would have said that the only sense we ever had of CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1283 it was in a gossip sense on 7 November. That was the first sense we had and it was only about the veracity of one aspect of it-the photographs. Its provenance was at that time to us completely uncertain. But the conversation was more a summarising of the facts; the story as we understood it. Senator FAULKNER-As you understood it, you mean. Ms Bryant-As I understood it. As I have said before, because I now knew about Ms Halton's evidence I did not want to be misleading and pretending that by that point I was not aware of that. Senator FAULKNER-Was there knowledge amongst those in the room about the two sit reps and the Operation Gaberdine advice-that is the Strategic Command brief cleared by Group Captain Walker? Ms Bryant-I know the documents you are referring to. I recall they are the ones- Senator FAULKNER-And sit reps 59 and 60? Ms Bryant-I said in estimates that I believed, from the best we could ascertain from the fax records, that these were the ones we had sent across to Mr Jordana and that, as best as I could connect them, I believed they were in response to his request. I know the documents you are referring to. Could you clarify for me what you are looking for there or what you are asking me? Senator FAULKNER-I am asking whether, at the 10-minute discussion that you had in the Prime Minister's office with the half-dozen, those documents were discussed? Ms Bryant-I do not recall those being discussed in the Prime Minister's office. I did discuss them briefly with Mr Jordana when I spoke to him separately and I said, `Look, Miles, I think these were the documents we sent you,' and I think his comment to me was-I admit I do not recall it after all this time-`That sounds right. I don't recall getting very much from you.' I think that was how he put it to me. Senator FAULKNER-This is how Mr Jordana puts it? Ms Bryant-Yes. The documents we sent- Senator FAULKNER-When did he have that conversation with you? Ms Bryant-On the night of estimates. I said to him, `Miles, I've got this note that you are looking for this material but I do not recall the context. Do you?' and he said to me, `I was looking for material to use in preparing the speech.' Senator FAULKNER-This is the Prime Minister's Press Club speech? CERTAIN MARITIME INCIDENT CMI 1284 SENATE-Select Thursday, 18 April 2002 Ms Bryant-Yes. I duly reported that when I came back to the room. The context of his comment was that the material-those particular documents-were not terribly much help to him in preparing the speech. Senator FAULKNER-No, of course not, because they did not show that children had been thrown overboard. Ms Bryant-I do not know why they weren't particularly helpful. Senator BRANDIS-That is an unfair question, Senator Faulkner. Senator FAULKNER-It is not a fair question; that is a statement. Of course they weren't any help to him. Senator BRANDIS-If it is not a question at all then let us forget it. Senator FAULKNER-But they were provided and yet the Prime Minister made the unqualified statement that he did at the Press Club the next day. We all know that history. Senator MASON-In relation to which SIEV, Senator Faulkner? Senator FAULKNER-In relation to SIEV4. Senator MASON-Not the other ones? Senator BRANDIS-You mean the ones in which the pattern of conduct was evident throughout mid-September and October? Senator FAULKNER-The one where the government lied in the entire period of election campaign that the children had been thrown overboard-SIEV4. Senator MASON-Not the other ones? CHAIR-Order! We have 25 minutes to go before stumps and we are beginning to debate the matter between ourselves. We have 25 minutes left for Ms Bryant if we use that time up in full and I suggest we hoe in to our task. Senator FAULKNER-Ms Bryant, do you meet Mr Jordana before the meeting of the half- dozen in the Prime Minister's office or after? Ms Bryant-After. Senator FAULKNER-So you do not have an opportunity to directly canvass the three documents, so to speak, until after you leave the Prime Minister's private office? Is that the way it worked? CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1285 Ms Bryant-It was not the opportunity. I do not recall discussing them in that conversation in the Prime Minister's office. I do recall talking briefly about them with Miles in the context of our discussion about his request; our response to it. Senator FAULKNER-Was there general acceptance from Mr Moore-Wilton, was there a general understanding from Mr Moore-Wilton in this discussion, by this point, that children had not been thrown overboard? Ms Bryant-I do not recall. Are you asking if there was an understanding by Mr Moore- Wilton- Senator FAULKNER-I am wondering if you do recall Mr Moore-Wilton suggesting and acknowledging that children had not been thrown overboard? Ms Bryant-In the context of that conversation, no. I recall him making remarks on that subject earlier in the estimates hearing, which I think attracted some commentary. Senator FAULKNER-So do I; that is why I asked you. Senator BRANDIS-Do you mean his remarks to the estimates committee, Ms Bryant? Ms Bryant-I do, but I do not recall him making any further comments about that matter at all in the context of that conversation. Senator FAULKNER-So there are these two issues: there is the Jordana issue and there is the Halton `tearoom gossip' issue, discussed in the 10-minute meeting in the Prime Minister's office. Could I ask you what other- Ms Bryant-I have to say we are referring to 10 minutes-I have said I thought it was not a 30-second conversation; I am really not precise as to the duration. Senator FAULKNER-Well, you said 10 minute- Senator BRANDIS-Ms Bryant, are you even comfortable with the description of this conversation as a meeting, in the sense that you would ordinarily use the word `meeting'? Ms Bryant-No, I do not think it really was a meeting- Senator BRANDIS-It was a corridor conversation, wasn't it? Senator FAULKNER-No, it wasn't; it was in the Prime Minister's office. Senator BRANDIS-It was a corridor conversation that then debouched into the Prime Minister's office because the corridor was too narrow. Senator FAULKNER-Someone knocked down the walls of the office and made it a big, large corridor! CERTAIN MARITIME INCIDENT CMI 1286 SENATE-Select Thursday, 18 April 2002 Senator JACINTA COLLINS-It was easy for six to just sort of accidentally slide in there! Ms Bryant-It was easier than standing in the corridor. Senator FAULKNER-Was the door closed? Senator MASON-Was it `open door Prime Minister', or something? Ms Bryant-I had my back to the door so I do not know the answer. Senator FAULKNER-I am just wondering if you could define it as `the corridor extended by an open door'. Senator BRANDIS-Not like the shut door of Prime Minister Keating. Senator FAULKNER-Don't be silly, Senator Brandis-please! Ms Bryant-I had my back to the door so I do not know the answer. CHAIR-I think we have satisfied ourselves as to the nature of this conversation. Senator FAULKNER-I might say, Ms Bryant, I appreciate the point that you make about time. It was you, not I, that said 10 minutes, and I- Ms Bryant-Yes, I said I am guessing about it. Senator FAULKNER-I understand that in your saying 10 minutes it might have been nine minutes-it might have been 10, it might have been 12, it might have been seven-we get the message. Ms Bryant-Yes, and I was trying to be approximate-nor did I want you to get the feeling of, `Now, that is sort of three minutes worth of script,' and another three unaccounted. Senator BRANDIS-I understand that this is an accidental, occasional conversation that did not go for very long. Ms Bryant-It did not go for very long. Senator FAULKNER-There was nothing accidental about it at all, was there? Ms Bryant-I have no idea. From my point of view it was entirely accidental. Senator FAULKNER-I appreciate that. I know from your point of view- Ms Bryant-As to anybody else's motives, I cannot comment. Senator FAULKNER-Absolutely. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1287 Senator FERGUSON-Are you surmising the rest? Senator FAULKNER-No, there is absolutely no suggestion at all- Senator FERGUSON-You are surmising. Senator BRANDIS-Our friend Senator Faulkner thinks that the questions are evidence; at this end of the room we think that answers are evidence. Senator FAULKNER-that Ms Bryant deliberately went down to the Prime Minister's office- CHAIR-Let us not get into that. Senator FAULKNER-to have a 10-minute conversation with the assorted heavies. Ms Bryant-It was entirely accidental, from my point of view. Senator FAULKNER-There is no suggestion from me, nor any other rational human being, that that would be the case, and you know it. Senator MASON-Ms Bryant has just said it was accidental, Senator Faulkner. CHAIR-I think we are debating between ourselves- Senator BRANDIS-I think Ms Bryant has just said for the third time that it was entirely accidental. CHAIR-We are debating between ourselves. Let us just ask questions of the witness. Now there is cross-table discussion. Come on, we all know what is going on; let us go back to the witness. Senator FAULKNER-Anyway, I was asking you about the matters that were discussed in the meeting in the Prime Minister's office. The Jordana issue is discussed, the Halton tearoom gossip issue is discussed, and I think you and I understand what we mean by that issue in the broad-it is true that the Jordana issue was discussed; isn't it, Ms Bryant? Ms Bryant-It is true we discussed that I had had the request from Miles and could not recall what had prompted his request to me and that I thought it would be helpful to ask him and put that on the record. Senator FAULKNER-That was discussed. The so-called Halton tearoom gossip issue was discussed-that is right, isn't it? Ms Bryant-Correct. CERTAIN MARITIME INCIDENT CMI 1288 SENATE-Select Thursday, 18 April 2002 Senator FAULKNER-Could I ask you if any other issues or matters were discussed? For example, was the Scrafton contacts issue discussed, as per the third paragraph of Mr Scrafton's interview? Ms Bryant-To the best of my recollection, there were no other topics discussed, and I am confident that there was nothing about any witness statement that was discussed. Senator FAULKNER-So Mr Scrafton's name was not mentioned? Ms Bryant-No. Senator FAULKNER-Nor the name of any other ministerial staffer; just Mr Jordana? Ms Bryant-That is right. Senator FAULKNER-He is the only ministerial-and, in this case, prime ministerial- staffer? Ms Bryant-Yes. I do not recall anything else being discussed, but I am confident as you put that particular question to me that, no, it was not. Senator FAULKNER-What was said to you about the importance or significance of the estimates evidence that you were giving? Ms Bryant-Nothing was said to me about the importance or significance of it. Senator FAULKNER-There was some commentary by some of those present about your performance, wasn't there? Ms Bryant-I think it was in the context that it was an unusual day, and I think by that point I had been in the chair for nine hours. Senator BRANDIS-You had only had Senator Faulkner to put up with, Ms Bryant; that cannot have been too taxing for you! Ms Bryant-I had had nine hours of the pleasure of the senator's company, and the comments were more about that it had been a lengthy day and we were holding up well type of comment. Senator FAULKNER-Who made that comment to you? Ms Bryant-I think it was just a general comment of- Senator JACINTA COLLINS-Bonhomie? Ms Bryant-Yes, it was of that nature. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1289 Senator FAULKNER-That is good, but who made it? Did the Prime Minister make it? Ms Bryant-No, the Prime Minister did not make it. I cannot recall. It may have been Tony Nutt. Certainly Max had sort of said-as we left the room you may have even observed, but it was a bonhomie kind of comment- Senator BRANDIS-I hope none of these people said anything unpleasant about Senator Faulkner. Ms Bryant-Definitely not. Senator BRANDIS-Thank goodness for that! Senator JACINTA COLLINS-Senator Brandis, have you got a fetish or something? CHAIR-We won't go there. Let us keep with the witness. Senator FAULKNER-We have only got a few minutes left today, Ms Bryant, which no doubt will be a relief given that, like me, you do not like these long committee sessions. Ms Bryant-I was relieved that two hours were set aside, rather than 11, today. Senator FAULKNER-You were not the only one, I can tell you. I think we may need to ask you to come back at some point, but I want to quickly deal with the second issue, the so- called tearoom gossip incident, not so much from the perspective of what occurred in the Prime Minister's office at that time but going back to the actual substantive incident itself. Ms Bryant-Sure. Senator FAULKNER-Very briefly, could you just tell us where you first hear that information, who first passes it on to you, where they do that and what was the context. Ms Bryant-I think I have been through some of that in responding to your earlier questions but, although I did not link the events at the time, the sequence of the events as I now understand them was: Mr Jordana contacted me, looking for Defence sit reps and Defence material; in response to his request I think we had hunted through our files in Social Policy Division looking for the material; having not identified anything much that fitted that generic description, I had asked an officer in my branch to check with International as to whether the defence branch had anything; and, in the course of those inquiries with International Division, my officer spoke to Ms Harinder Sidhu, and in a sort of casualish conversation between the two of them Harinder said, `Hadn't you heard that there are rumours circulating in Defence that the photos have been wrongly attributed?' The officer-and I think she was named by Ms Halton as Catherine Wildermuth-came down to me and said, `Harinder has just said that there are rumours in Defence the photos are false.' I asked, `How did they come across this?' and was told that a person working to Harinder had been at an IDC in Defence and had overheard tearoom gossip-that it was an aside in the CERTAIN MARITIME INCIDENT CMI 1290 SENATE-Select Thursday, 18 April 2002 context of the meeting-and that was what was conveyed to Harinder. When she passed it on to Ms Wildermuth and Ms Wildermuth duly reported it to me that same evening, it was the first time we in the Social Policy Division had had any inkling of this as a possibility. I thought, `It's pretty uncertain: someone working for Harinder tells Harinder who tells Catherine who tells me,' and I am not really sure what weight to give this, but I did call Ms Halton and told her that sequence of facts as I understood them at that time. I thought, given its rather uncertain nature, I would leave the judgment for her to make as to how it was appropriately responded to. As I now know, she subsequently contacted Mr Jordana, but she did not inform me at the time of how she intended to take the matter forward. Senator FAULKNER-When did she notify Mr Jordana? Ms Bryant-My telephone records show that I called Ms Halton at 1823. Senator FAULKNER-On which date? Ms Bryant-On 7 November. Senator FAULKNER-And when was Mr Jordana informed? Ms Bryant-I do not know directly. I understood Ms Halton gave you evidence to the effect that she called him that same evening, but I do not know that from first-hand knowledge. Senator FAULKNER-I am assuming it was after that. Ms Bryant-I am assuming it was after that, too, but I thought she had given evidence on that point. Senator FAULKNER-What did you do to satisfy yourself that it was actually tearoom gossip, so to speak, that we were talking about? We know who the member of the ADF was-it was Commander King-because that was clear. Ms Bryant-I did make some further inquiries about that yesterday, obviously in anticipation of this discussion. I now understand, and again it is the advice to me, that it was not tearoom gossip at all. I did see Commander Chatterton's evidence- Senator FAULKNER-I am sorry, please say that again. Ms Bryant-I saw Commander Chatterton's evidence and, in the light of that obviously, yesterday I made some inquiries. I was informed that the International Division now understood that it had not been tearoom gossip, that Commander King had advised the International Division officers that it was rumours or tearoom gossip and that that had been their understanding but they now had a view that, in the light of what Commander Chatterton said, it had a much more formal nature. But certainly their understanding right through had been rumours or tearoom gossip, but in the light of the events of yesterday I think they no longer hold that view. CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1291 Senator FAULKNER-So it is possible that this was yet another substantive communication to the Department of the Prime Minister and Cabinet that the photographs allegedly depicting children thrown overboard were not the case. Ms Bryant-I do not know about the use of the word `another', because I am not sure what you are referring to as the previous one. Senator FAULKNER-I am talking about other direct communications such as the chronology and the footnote, which you are well aware of. Ms Bryant-But I did not believe they were about the photos, sorry. That was what was confusing me. Senator FAULKNER-The chronology and the footnote and the brief cleared by Group Captain Walker from Strategic Command, without going to the sit reps and the like. But this is another indication that the Department of the Prime Minister and Cabinet is informed, in the broad, about the inaccuracy of the claims. Ms Bryant-You are well aware of the views of officers in relation to the chronology and that it seemed to have been overtaken by other things. The perception was the issue was clarified in terms of the Defence brief that you allude to. My reading of it was that it certainly made no reference to children overboard, but the absence of a reference to something does not say it did not happen. In terms of this advice, taking what I understand to be Commander Chatterton's evidence at face value, he may have made a genuine attempt, but his attempt was seemingly less than entirely successful because of the way Commander King portrayed the information-people did not appreciate that it had significance. Senator BRANDIS-If I may say so, you seem to have captured in a sentence what some of our colleagues have been struggling with for nine days-that is, the absence of a reference in a document to something does not mean it did not happen. CHAIR-Is this a philosophical question? If a tree fell down in the Amazon and no one witnessed it, did it happen? Senator BRANDIS-It was an observation. CHAIR-Good. Do you have any questions on the tip of your tongue, Senator Faulkner? Senator FAULKNER-I have many. CHAIR-That is what I suspected, and that is why I thought we might pause for a minute to briefly contemplate the future, because we are going to have to rise at four o'clock. How much longer do you think you will be? Senator FAULKNER-I will look at the issues that I would like to raise with Ms Bryant and give consideration to whether that can be done on notice or whether we need to ask her to come back. It may depend on the nature of the answers that are given. I can attempt to do that, but of CERTAIN MARITIME INCIDENT CMI 1292 SENATE-Select Thursday, 18 April 2002 course I have said to you before there is no doubt that we will need to ask, on this issue that Ms Bryant and I were just canvassing, Commander King, Ms Sidhu and Dr Hammer, at a minimum, to come back. It may be that we will have to ask Ms Bryant- Ms Bryant-Can I alert you to the fact that Ms Sidhu is in Europe for five weeks. I think she is due back towards the end of May. Senator FAULKNER-I did not know that. Thank you for telling us. Senator FERGUSON-We allotted two hours for Ms Bryant, which when the program was set in place was considered to be enough time. We have not used any of that time. I do not know whether we are going to have timeless witnesses forever, but this inquiry could go to Christmas if we really wanted it to, and I think there ought to be some invitations placed. Government members have ceded all of their time for questioning to Senator Faulkner, and he has taken the two hours that were allotted for Ms Bryant. Two hours of questioning is a reasonable amount, unless there was some notice that you wanted someone here for the whole day. We could extend the time for every witness that comes here for days and days if we wanted to. I think we need to put some discipline on ourselves as well. Senator BRANDIS-Can I just make two points. First, Senator Faulkner must have expected that roughly half of the available time would be available to opposition senators and, as Senator Ferguson says, he has had it all, so it cannot be that there is any sense of constraint or limitation on Senator Faulkner's line of questioning. Secondly, Ms Bryant is not a witness to any of the primary events. She is neither a witness to the events that happened on 7 October and the days thereafter nor a witness to what might loosely be called `the process issues'. Senator Faulkner's questions of her have largely been on the collateral and, as it turns out from his point of view, unrevealing question of what happened in a corridor conversation when she ran into the Prime Minister months after any of these events. If this were Commander Banks, for example-a core witness-whom we had here for a long time, I would be sympathetic in asking her to come back, but Ms Bryant, with all due respect to her, is not a central witness to anything. Senator FAULKNER-On the procedural point, Ms Bryant is a direct witness to the tearoom gossip and the Jordana issue, and they need to be canvassed at greater length. We can test this out in a private meeting of the committee; there is no need to do this on broadcast. I must admit that I was not expecting-and neither were the coalition senators-the fact that this extraordinary meeting took place in the Prime Minister's office, with Ms Bryant and other assorted heavies. This is new information and there are matters that Ms Bryant is a direct witness to, such as the tearoom gossip issue, the Jordana issue and the meeting in the Prime Minister's office. They do need to be explored further and I intend to explore them further at the available forums. However, we can test that out at a private meeting of the committee if and when we decide that is appropriate. As I have indicated, I will place whatever questions I can on notice to Ms Bryant. If the answers are adequate and I do not think there are matters that need to be followed through-and that will depend on the nature of the answers; Ms Bryant is experienced in these things and she CERTAIN MARITIME INCIDENT Thursday, 18 April 2002 SENATE-Select CMI 1293 would appreciate that, as those from her department would understand-then there will not be a need for her to come back. We will have to make that judgment. CHAIR-I intend to adjourn this hearing. We can deal with this matter at a private meeting when we next meet. We have a program which has passed under the eyes of everyone on this committee other than you, Senator Faulkner, because you have been engaged, but your office has been consulted on the program changes. Senator FAULKNER-I do not mind being kept in the dark. The whole country has been kept in the dark about this. CHAIR-It will give us a sufficient program for the next two sitting days. On that basis, we will now adjourn. Thank you, Ms Bryant. As a result of what we decide, we will get back in contact with you. Committee adjourned at 3.58 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident WEDNESDAY, 1 MAY 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Brandis, Jacinta Collins, Cook, Faulkner, Ferguson, Mason and Murphy Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BARKER, Mr Geoffrey James, Journalist, Australian Financial Review..............................................1297 DAVIDSON, Mr Clive, Chief Executive Officer, Australian Maritime Safety Authority ...................1359 DOBELL, Mr Graeme, Foreign Affairs and Defence Correspondent, Radio Australia, Parliamentary Press Gallery Committee ..................................................................................................1297 ENSOR, Mr James, Director, Public Policy, Oxfam Community Aid Abroad.....................................1389 HARRIS, Ms Susan Gail, Member, National Refugee Team, Amnesty International Australia........ 1456 HODGES, Mr John Charles, Chairman, Immigration Detention Advisory Group, c/o Department of Immigration and Multicultural and Indigenous Affairs ............................................... 1405 KEVIN, Mr Tony (Private capacity) ........................................................................................................ 1325 McPHEDRAN, Mr Ian, Bureau Chief, News Ltd.................................................................................... 1297 O'KEEFFE, Ms Annmaree, Deputy Director General, Pacific, Contracts and Corporate Policy, AusAID ........................................................................................................................................................ 1428 PACE, Dr John, Expert, Amnesty International Australia .................................................................... 1456 RABY, Dr Geoff, First Assistant Secretary, International Organisations and Legal Division, Department of Foreign Affairs and Trade ............................................................................................... 1428 REID, Mr Malcolm, Manager, Advocacy, Oxfam Community Aid Abroad ........................................ 1389 TAPP, Mr Charles William Nicolas, Deputy Director General, PNG and Global Programs, AusAID ........................................................................................................................................................ 1428 THOM, Dr Graham Stephen, Refugee Coordinator, Amnesty International Australia...................... 1456 WISE, Mr James Joseph, First Assistant Secretary, South Pacific, Africa and Middle East Division, Department of Foreign Affairs and Trade ............................................................................... 1428 Wednesday, 1 May 2002 SENATE-Select CMI 1295 Committee met at 9.35 a.m. CHAIR-I declare open this meeting of the Senate Select Committee on A Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from the secretariat staff and copies have been placed near the entrance to the room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 8.30 p.m. tonight and will resume at 9.30 a.m. tomorrow morning. We had expected to take evidence from the Manus Island Asylum Seeker Camp Committee via teleconference at 1.15 p.m., but this may well not proceed. The asylum seeker committee has requested that they provide further evidence in writing rather than orally as originally proposed. The Senate committee has been in further communication with the Manus Island camp and we are awaiting further advice from them. In the event that the camp committee provides further written evidence, the select committee will publish that evidence as soon as it becomes available. Should the teleconference not proceed today, the hearing will be suspended for lunch between approximately 1 p.m. and 2.45 p.m. Dinner will be from 6 p.m. until 7.30 p.m. during which time the committee will hold a private meeting. Witnesses and others will need to make their own arrangements for meals as the cafeteria facilities in the parliament will not be open after 5 p.m. Tea and coffee are available all day outside the hearing room. I remind everyone that mobile phones are to be switched off in the hearing room. The waiting room next door is for departmental staff and witnesses only and is a private area to which the press and public have no access, although I imagine this morning, given that the press are witnesses, that they have access. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege according to the provisions of the Parliamentary Privileges Act 1987. The action of a witness in giving evidence and producing documents, and the evidence given, cannot be used against the witness in any sense in subsequent proceedings before a court or tribunal. Senate standing order 181 declares that: A witness examined before the Senate or a committee is entitled to the protection of the Senate in respect of the evidence of the witness. This is a declaration by the Senate that it will use its powers to protect witnesses against any adverse consequences arising from their giving evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular CERTAIN MARITIME INCIDENT CMI 1296 SENATE-Select Wednesday, 1 May 2002 policy was arrived at. When witnesses are first called upon to answer a question they should state clearly their names and positions. Witnesses will be asked to make an oath or affirmation. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1297 [9.39 a.m.] BARKER, Mr Geoffrey James, Journalist, Australian Financial Review DOBELL, Mr Graeme, Foreign Affairs and Defence Correspondent, Radio Australia, Parliamentary Press Gallery Committee McPHEDRAN, Mr Ian, Bureau Chief, News Ltd CHAIR-Welcome. The normal procedure is that we invite witnesses to make an opening statement if they so choose and then make themselves available for questions from the committee. Do you all wish to make an opening statement or will one individual speak on behalf of all of you? Mr Dobell-I am going to speak and Geoffrey is going to speak. CHAIR-Okay. Please proceed. Mr Dobell-First of all, thank you for the chance to be in this rather unusual part of the committee room. I contributed to this submission as the foreign affairs and defence correspondent for Radio Australia and the ABC, which is a job I have been very lucky to have done about four times between various postings. I first did the job in 1978. The reason that I contributed to the submission is because I thought there were some important issues and broader principles that needed to be brought out of this affair. At the start, I want to submit to the committee that it should look at making a couple of broad recommendations drawing on the evidence that it has already brought out. Firstly, in future the Australian Defence Force should have responsibility for giving a full, timely and accurate account of its operations. It should not give operational reporting through ministers' offices. Secondly, part of Defence's responsibility to the Australian people is to allow timely and independent accounts of its operations by the media. On military grounds, and on military grounds only, should Defence place restrictions on the media accompanying its forces or reporting on its areas of operation. I would suggest to the committee that, on the basis of the evidence you have gathered of the damage to Defence, both internally and externally, and also perhaps a judgment about the political costs to the government of this affair, these recommendations would serve both self-interest and principle. Those are the specific recommendations. I want to talk more broadly about what I would describe as-and I think our submission described as-the culture of secrecy in Defence. Blaming the victim is not a particularly useful device, but I think that the failure of Defence to protect its own professional sphere from a strong minister, combined with Defence's own culture of secrecy, contributed to some of the problems that you have been examining. Defence cannot be allowed to embrace an `innocent victim' self-description-it cannot be allowed to tell itself that it was merely the victim of a strong minister, a stern Senate and an uncaring media. Defence must take some responsibility for what it did, and failed to do, in terms of accounting to the Australian people for its operations. CERTAIN MARITIME INCIDENT CMI 1298 SENATE-Select Wednesday, 1 May 2002 I want to talk very briefly about two examples of the culture of secrecy. One of them is the way that the culture of secrecy is impacting on the most significant military operation that Australia has been involved in in 30 years. We have less on-the-spot coverage of what the SAS is doing in Afghanistan than we had in Vietnam. I would say in passing that some of the accounts of 30 years ago made the point that some senior Australian officers in Vietnam rated Australian journalists as only slightly less dangerous than the Vietcong-so some things have not changed. The point about the culture of secrecy is that you get a representative of an Australian media organisation turning up to a major American military base at Kandahar and being thrown off that base by the Americans at the request of the SAS. So Australia is learning about what is be- ing done in its name in Afghanistan officially when a brigadier stands up at Russell headquar- ters, a few kilometres from here, and gives an account of what is taking place in Afghanistan. The justification for this total secrecy surrounding the SAS is as much, I suggest to you, cultural as it is military. The American military does not ban all media coverage of special forces operations after the event in the same way that the SAS in Britain and the SAS in Australia do. Part of the culture of secrecy surrounding the SAS is adopted from the British model. The British model perhaps has more justification. But I do not really see there is any necessity for Australia's SAS to have their identities protected from the IRA. Just on the SAS issue-because this goes to this cultural issue-I pulled out Professor David Horner's very good book on the history of the SAS. David Horner makes the point in his introduction: ... obviously while on operations the SAS is careful about security, particularly concerning the details of future missions. But in many respects the SAS has little to hide. The regiment is as much under military discipline and control as any other unit in the Australian Army. Its roles are clearly stated and are in accordance with government policy. No particular effort is made to hide the identity of SAS soldiers and, except for specific exercises, they wear a uniform while on duty. Why then is that culture of secrecy being used to prevent any Australian reporting of what is being done in Australia's name in Afghanistan? The other example of the culture of secrecy is the Defence Instructions (General). There have been two sets of Defence Instructions (General) issued: one in August 2001 and the other on 25 March this year. I offer up both those copies. The instructions that were issued in August last year-and I think the committee has had some discussion about this-were extraordinarily restrictive. The ones issued this year were less restrictive-they were perhaps only amazingly restrictive. Reading the instructions gives some idea of the flavour of the culture of secrecy. I point, for instance, to the latest instructions and the sort of language that is used: When speaking publicly Defence members should not assume that the media is not present or that information will not be relayed to the media or others outside the forum. Media access to seminars, conferences and similar events arranged by Defence requires careful consultation ... The risks of inaccurate reportage, misrepresentation, uncoordinated messages, and inadvertent disclosure of sensitive or pre- emptive information may be high. Services and Groups should consult ... prior to adding media representatives to mailing lists. Defence members attending events at which media representatives may be present need to exercise care ... The tone of this is: `Beware of monsters; watch out for the trolls under the bridge.' It is a warning to intelligent, highly trained and experienced people. It is about not trusting your own CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1299 people almost as much as you distrust the media. I would suggest that a reading of these two instructions would bring home to the committee the fact that much of what passes for communications policy in Defence is actually anti-communications policy. Mr Barker-I would like to follow that with a few brief observations about the culture of se- crecy as it is represented by the mindset in Defence Public Affairs and Corporate Communica- tions-the Defence organisation responsible for this area. I had a history teacher who once told me that the Holy Roman Empire was neither wholly Roman nor an empire. I think, likewise, Public Affairs and Corporate Communications rarely operates in public. It has very little to do with public affairs and communicates very little indeed. I would like to direct the committee's attention to the interview that the head of PACC, Ms McKenry, gave to Jenny Bryant. If you look at that, you can see that the head of PACC, who was supposed to be in charge of the Public Affairs and Corporate Communications area of Defence, is quoted as saying, `There are still elements in the ADF that believe they should be able to have dialogue with the media.' She also notes that she has given all of the service chiefs a `strategic communications adviser' whose role is to ensure that all public affairs activities are in line with an overall strategy, which is not really specified anywhere. Finally, on the specific issue of the children being thrown overboard-and just to follow up Graeme's point about the amount of information that was controlled through a minister's office-she tells Ms Bryant that during the operation `material was being released by PACC only at the request of the minister's office'. She suggests that it was Commander Banks's interview with Channel 10 that triggered the search for photographs and which led to the release of these photographs. She says further that the core of the problem had been Commander Banks's interview and the wide dissemination of the photographs. I put it to you that the core of the problem was the attempt to control everything. Commander Banks is the one person who, I think you will agree, has come out of this inquiry looking very good indeed. So I wanted to direct your attention to that to reinforce Graeme's point that this notion of total control of information is impracticable and, quite frankly, damaging to Defence. That is all I have to say at this stage. CHAIR-To begin, I would like to ask a couple of very fundamental questions. Hearing what you have said, Graeme, and you, Geoffrey, it is a complaint about what the current arrangements are as you see them. My question is: what should be the arrangements? In your view, what would be the appropriate communications structure for Defence? Is there a model somewhere else in the world where that appropriate structure applies? Mr Barker-Let me put this to you: I spent quite a few years working as a correspondent in Washington and have had dealings with the Pentagon. Of course, those great American departments of state, the Pentagon and the State Department, have their official spokesmen. They stand up and talk to reporters and you get the administration's line. But it is also quite easy to go down to the Pentagon and talk to a desk officer in an area. These people are very forthcoming. They generally try to be as open as they possibly can. There is just a different culture in the attitude towards the press in the United States. What I find particularly galling, even now, is that you can go and talk to the American military, or even diplomatic officials, and they are far more open and will tell you much more than your own officials will. So I think that, if one were to look at the American approach, one can see that there are guidelines there-if not a complete a model-in terms of openness. Of course, there is a different constitutional culture CERTAIN MARITIME INCIDENT CMI 1300 SENATE-Select Wednesday, 1 May 2002 about the role of the media in that society but, nevertheless, if you want to see the way that things might be done with rather a great deal more openness, I think the American example is not a bad one to have a look at. Mr McPhedran-Just adding to that, I would say that, to be fair, the current Minister for De- fence, Senator Hill, has attempted to bring more openness to bear than his predecessor and we do now get regular so-called operational briefings from senior officers at Russell. That by no means counters the culture of secrecy that seems to pervade the entire organisation and prevents the media from getting perhaps a little further into a story in a way that does not jeopardise any operational information. We are all aware of the need to maintain operational security, and those of us who have had anything to do with the D notice issues in the past understand those things only too well. So there has been some improvement but there is a way to go. Mr Dobell-I would not want to say that this is a monolithic problem in Defence. One of the ironic dissident elements last year was that, while all this was going on, we were sitting on the C.E.W. Bean committee-the journalists' committee-which was actually talking to Defence about reactivating the system of accrediting Australian correspondents to go into operational areas with Defence. Defence had learnt some pretty important lessons from its Timor experience about what it could and could not do in terms of controlling the media. Defence was coming to us, I thought, with a fairly open mind and talking about the old system of censorship, whereby essentially an accredited correspondent would be fed and transported by the military in return for which they would be subject to censorship. The military was accepting that that was no longer practical and was looking at a much more open system, whereby essentially correspondents would be briefed, told what the parameters were and would essentially be self- regulating. Perhaps to lighten the picture a bit, I think there is an understanding in some parts of Defence that the culture does have to change. I think that is why there was a lot of frustration in some areas of Defence, that they were not being allowed to apply some of the very lessons that they had drawn. CHAIR-I have just two quick questions and then I will vacate the arena. If the structure that you have referred to had applied during Operation Relex, would it have been likely that anyone from the media would have talked directly to Banks? How would you have obtained the photographs? The second part of it-I might as well put both questions down-is that when the Defence Instructions (General) came out in August 2001, did you or your agencies complain to the Defence Department about the highly centralising nature of the information flow as a consequence of that instruction? Mr Dobell-We wrote stories about the directive for a start. You have heard about the sorts of conversations that we had with Tim Bloomfield and others. I do not remember making a complaint directly related to the Defence Instructions (General) as such, but we did certainly write quite a few stories about what it meant. Mr Barker-Certainly I wrote several columns reasonably critical of it, and what was astonishing was that one got absolutely no response. Defence obviously had nothing to say about it, although, as Graeme has pointed out, when you looked at the first one particularly, it was extraordinarily stringent. Following up Graeme's other point about the slightly more open attitude within Defence, I think that is on the uniform side of things, particularly when people CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1301 are in the field and have to deal with you. It is the people who are on the civilian side-and maybe the political side, too-who tend to be much less open and flexible about these things. Mr Dobell-I would merely say, too, that if the two points I made to you about right of me- dia to cover exercises and the responsibility of Defence to account for its operations had been in place, I would have expected Defence to have been briefing in the normal way-publicly, through its chief spokesman, a brigadier-about what had happened and, quite possibly, that there might well have been a journalist on board. We had instances during the Gulf War when an Australian reporter was on board an Australian Navy ship in the Gulf. I did not make the point, but I would have thought that if C.E.W. Bean or Denis Warner, who is still with us, or Harry Gordon, who covered Korea, could see the way the Australian media is covering Af- ghanistan-Australian troops essentially doing conventional military exercises-and the fact that there is no Australian reporter there, they would be astonished, and rightly so. Mr McPhedran-Adding to that, I did not write much about the Defence Instructions (General) because, frankly, I do not understand it. I would defy anybody to read it and give me an explanation as to what it means. I do not really think it is coherent; I think it is incoherent and unreasonable. I think that Geoff's point about the military civilian thing is a valid one, only that you just have to be a bit careful about some of the performances by the uniform side regarding some of the operations that have been held in the last few years. I think it is an across- the-board thing. The willingness of the people across the board to be played-as we contend in our submission they were-is an area of concern and one which I think both sides of federal politics should be aware of, given Graeme's earlier point about the recommendations that might come from this inquiry. Mr Barker-In a genuinely open society, when the Navy is deployed to the north of Australia to enforce an immigration policy-stop boats and pick up people-I would have thought that there is a very strong case for the media to be present, to witness it, to report it and, yes, to talk to the commander on the ship if necessary. Mr Dobell-And no more military rules; the only thing you can't report is exactly where the ship is for obvious reasons. Senator BRANDIS-I take it, gentlemen, that you put forward your written submission as part of your evidence? Mr Dobell-Yes. Senator BRANDIS-I see that it was submitted over the names of, among others, Mr Forbes of the Age, Miss Kelly of the ABC and Mr Skehan of the Sydney Morning Herald. Have any of you gentlemen at the table-and you will appreciate I have not followed all the press reportage of this committee's work-been involved in preparing reportage as opposed to commentary pieces on this committee's hearings as such? Mr Dobell-No. Mr McPhedran-Yes, early on. Senator BRANDIS-Mr Barker, I think you have done some commentary pieces but not- CERTAIN MARITIME INCIDENT CMI 1302 SENATE-Select Wednesday, 1 May 2002 Mr Barker-I have done some commentary pieces and if you have a look at today's paper you will see some reportage too. Senator FERGUSON-Not because of the press report. Mr Barker-It was completely coincidental-opportunistic. Senator BRANDIS-I know that Mr Forbes of the Age, Miss Kelly and Mr Skehan, among others, have prepared reportage on this committee's hearings and they sign off on the written submission which is part of your evidence. I will express a proposition and invite each of you to comment on it. While I do not find anything you have said in your oral evidence particularly striking-I may or may not agree with it-it seems to me to bear immediately upon term of reference (b)(iii) of this committee's terms of reference. What I do find striking is the highly rhetorical language of the written submission, and not merely the style of it but the fact that plainly it pre-announces conclusions on the very matters which this committee has been given the task of inquiring into. I will give you a couple of examples. The very opening words of the written submission read: A Government campaign of censorship and misinformation, which peaked during the Tampa incident and continued through the HMAS Adelaide `children overboard' affair, is unprecedented in recent times. The submission refers to `blatant political manipulation of the bureaucracy'. It refers to Reith, Hampton, Hendy and Scrafton being clearly at the centre of efforts to prevent the truth coming out regarding false claims that asylum seekers threw children into the sea in October last year. There is reference to journalists being lied to and a comment that secrecy was not used for operational reasons but to control information for maximum political effect. I could go on as there are plenty of examples. I have asked the secretary of the committee to put before you a copy of our terms of reference. Those terms of reference require this committee to inquire in particular into the incident under discussion, the role of Commonwealth agencies and operational procedures employed by the Navy. I am sorry it is a very long preamble to my question, but if I can come to the question it is this: how on earth are any of the signatories to this submission going to be in a position to report objectively, or even to offer a credible commentary, on any report this committee might bring down on those terms of reference to which I have referred when you have-and by `you' I mean collectively the co-signatories to the submission-prejudged the issues in advance of hearing the evidence, let alone of reading the report of the committee? Mr Barker-Firstly, Senator, I acknowledge that the style of the document is somewhat florid. It certainly got your attention, which was part of the purpose. Senator BRANDIS-Mr Barker, I know that is a nice remark but it did not get my attention. The more credible submissions before this committee are those which are matter of fact and unemphatic and rooted in facts rather than rhetorical claims, from my point of view. Mr Barker-I put it to you that we have lived through this incident and it reflects the views of the signatories as to the way they have been dealt with and invites you to accept or reject them as you will. I certainly do not prejudge any report that comes from this committee. I await it with great interest. I do not think anything we say there means that we cannot make an CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1303 objective assessment or a fair report of your final report. We may well have different views with it, but I do not think that what was said in that document somehow disqualifies us from reporting on it or commenting on it. Those reports and commentaries will have to be judged in the light of what you produce, I suspect. Senator BRANDIS-But my point is that you have become a protagonist in the argument, even before the first syllable of evidence was taken. This submission was received on 22 March, and presumably written before then. How can-as a protagonist in the argument who has an- nounced conclusions before a syllable of evidence has been heard-you be an objective com- mentator, let alone reporter? Mr McPhedran-I think we announced our position; I do not think we announced any conclusions. I think we announced our experience. Senator BRANDIS-I have read you a few extracts, Mr McPhedran. Mr McPhedran-You have-and please do not put words into my mouth, Senator-but I just wanted to say to you that what you have read out there has almost entirely been borne out by subsequent evidence. If you think that we are going to be judged by our editors and our readers as being biased because we make a submission like this to an inquiry on our reporting, I think you have a fundamental lack of understanding of how the media works. By writing the submission, it merely reflects our experience of the time-and our experience was not a pleasant one. Senator BRANDIS-Mr McPhedran, I am not criticising you for bias. I think there is a subtle but real distinction between bias and prejudgment. I do not pretend to have read all the reportage of the evidence of this committee. But I might say that I have read one piece of reportage-at least in the print medium-in which a journalist has actually tried to go through the arduous process of analysing the evidence and getting to what the evidence suggests. That was a piece by Mr Patrick in the Financial Review two weeks ago, which actually did, with great and painstaking care, analyse the evidence. It is hard work doing that; reading hundreds of pages of transcripts is hard work. Making colourful, rhetorical claims is easy. I am not accusing you of bias, but if you prejudge factual conclusions before the evidence is on the table, what credibility can that have? Mr Dobell-I would say that we were putting to you the facts that we had reported on and experienced last year, so we were reporting our experience of what had happened. Secondly, I would suggest that the word you are looking for is not `protagonist' but, at the risk of being pompous and florid, I would suggest that the word you are looking for is `citizen'. We treat this inquiry and this Senate committee with great respect and we have actually gone to the trouble as citizens to put a submission to you on an issue of great importance. As someone who has on and off reported on the Australian Defence Force for over three decades, I thought that it was important that we should put to you our experience of what had happened and our view on the way it had been handled by the ADF. So I would put to you that the word that I would see is `citizen', and that when I took my vows of journalistic poverty and chastity I did not give up my role as an Australian citizen. Senator BRANDIS-I do not dispute that for a moment; I do not for a moment treat your submission with any lack of respect and I do not for a moment doubt your bona fides. I do have CERTAIN MARITIME INCIDENT CMI 1304 SENATE-Select Wednesday, 1 May 2002 a concern, though. If I can use a metaphor from my previous professional existence as a lawyer, you cannot be a juror if you are also witness. Surely the conflict in your position between being, to use my word, a protagonist and then being the people who mediate this committee's work to the general public and critically comment on it is a plain conflict of interest-a fortiori when you have written your conclusions before the first piece of evidence is on the table. Mr Dobell-We have given you evidence. CHAIR-But isn't it a fact that as working journalists you report the events as they unfold and analyse the significance of them up to that point? For example, when the photographs came out they came out before this inquiry started and they were revealed to be wrong before this inquiry started. You would not wait for the inquiry in order to report that fact, would you? Mr Barker-We were trying, and continue to try, to explain and report on the way we were dealt with in trying to get information and to establish what was going on. Senator Brandis, the objection you make is that somehow there is a notion of objectivity: that we do not have a value system, that we do not have professional interests, that we are somehow neutered by what we do. It is very difficult to be trying to deal with a major issue like this when you run up against roadblocks all the time in your daily work trying to deal with a minister's office and when you try to deal with this organisation Public Affairs and Corporate Communications. Inevitably you come away from it, as Graeme might say, as a citizen with the sorts of perceptions that are reflected in that document, if reflected in somewhat overheated language perhaps. It does make you cross. That does not seem to me to mean that we will not be able to fairly and decently report on what this committee finds and to comment on it. Senator MASON-Gentlemen, I want to briefly touch on principle. I think in essence your evidence before was that in general there is perhaps more secrecy surrounding defence matters than there was 30 years ago and that specifically operational briefings should be conducted by members of the ADF and not siphoned through the minister's office. I think Mr Barker and Mr Dobell said in effect that to do so was wrong in principle and it was also impractical. I think that is the evidence thus far in a nutshell. My problem in principle-perhaps it is a question in philosophy, but help me if you can-is that that assumes that there is a distinction between, on the one hand, politics and, on the other hand, operational requirements. I will let you know where I am heading: politics and operational requirements are two distinct things. I am not convinced that they are. In fact I think there is a large merging of the two. Let me give you two very quick historical examples. One is the leaking of the Pentagon Papers by Ellsberg. He is seen as a traitor by one half of the country and as a hero by the other half of the country. It undoubtedly impacted on operational requirements and it had an enormous political impact. Secondly, when President Johnson sent troops into Vietnam in 1965, he said, `If television cameras had been around 100 years before'-that is, before the Civil War-`America would not be a nation today.' The press always make the argument that as a matter of principle you can somehow distinguish from politics. I think history shows that we cannot do that. My question to you is: how do we arbitrate that distinction? Mr Dobell-Military doctrine spends a lot of time making some distinctions between the political directives at the top and the tactical requirements of the grunt in the field. There is a huge amount of theoretical work done on that. The military spend a lot of their life thinking CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1305 about those issues. There is a lot of literature on that, partly influenced by some of the things that you refer to. We are not arguing-I suppose I should have said this earlier-about obvious chains of command and the need for the military to do as ordered and to pursue the objectives so ordered. All I was talking about was almost at the other end of the chain: as operations are carried out on the ground, at sea or in the air, Defence has a professional sphere. Senator MASON-Yes, I accept that; it does. Mr Dobell-And it should be responsible as a profession for accounting for its actions. Senator MASON-I understand that. My problem is that I find it difficult to draw the distinction. In your opening statement you said that the Americans found Australian journalists as dangerous as the Vietcong. Mr Dobell-No, it was the Australian officers. I think the American officers had a slightly different perspective. Senator MASON-Sure. Australian officers found Australian journalists as dangerous as the Vietcong. Mr Dobell-No, the way that they were treated-in other words, the distance that was maintained between Australian journalists in Vietnam during that period. Senator MASON-But that is exactly my point. I am sure that at times the military find that journalists impede operational matters. That is my concern. I raise it because there is the assumption that there is some delineation between the two. The Vietnam experience showed that it is a harder delineation to find in practice than it is in theory. Mr Dobell-I would agree with you, but that is a delineation between military and media. Yes, I would agree with that: that is one of the difficulties, obviously, yes. Senator BRANDIS-We have heard the evidence as to all of these episodes of apprehension of SIEV vessels. Do you seriously suggest that the military could have done their work and carried out their rules of engagement under Operation Relex with the news crews and television helicopters circling above? Eyewitness news bringing it to you live from Ashmore Island! Do you seriously suggest that that would not have been an impediment to the operational effectiveness and indeed the safety of these exercises? Mr Barker-The media and the military are capable, if they agree to have coverage of things, of agreeing on rules for the coverage. That does not mean you will have helicopters flying overhead. Yes, there would be ways in which you could have the media present that would not necessarily be impeding. They have their provisions for pooling, for example. It could be arranged with enough consultation. I seriously suggest that there would have been ways in which the media could have covered this through pooling arrangements and through other sorts of sharing of facilities among the media so that you did not have a circus going on around it but that you did have an outside independent eye on what was going on. If I just pick up Senator Mason's point about the distinction one makes between operational and political requirements and needs, what you are really talking about more broadly is the CERTAIN MARITIME INCIDENT CMI 1306 SENATE-Select Wednesday, 1 May 2002 relationship between any executive government and its civil service, either in its civilian or its military incarnation. The mind-set of Defence is, quite properly, that they are subordinate to the civil authorities-the executive government-and they carry out orders. Indeed, it would have been a very political act if they had not. But the idea that the government owns completely the civil service and that the civil service or the military has no values or no responsibilities of its own beyond what it is ordered to do by the executive government is a fairly dangerous one too. What if one day some mad executive government goes and orders the military to go and round up certain minorities it does not happen to like? Should the military just salute and say, `Yes, sir,' and go off and do it? There are issues here. Just to respond to your point there argumentatively, the relationship between, if you like, operational requirements and politics needs to be examined. Senator FERGUSON-Can I follow on from Senator Mason- Senator MASON-It is just drawing a line in the sand; that is the problem. Senator FERGUSON-And in that line in the sand is it not possible that the military could be somewhat wary of agreements of rules between themselves and the media when you have had instances in the past-and I think particularly of the Carleton incident in East Timor-when the reporter or journalist went past the agreed position that had been reached at that time? Do you understand why Defence could be wary, particularly when someone is seeking to sensationalise everything or to get that extra yard or two so they have got the best story, and that it could be very difficult for them to maintain the rules that have been agreed on? Mr McPhedran- I can understand that reluctance, but I can say to you that if there aren't rules or isn't some kind of genuine attempt to get truthful information to the public then media will make their own judgments about that and will respond. I do not know if we will see the media chartering a helicopter and teaching a crew to propel down onto a ship like the Tampa in the future, but really if we cannot get honest information from on the ground through someone because a minister or someone else is blocking it then we will take our own steps. Mr Dobell- I think the East Timor example would suggest that the answer to Senator Brandis's last question is yes, the Australian military experience of not just the Australian media but the international media in that coalition operation in East Timor was that the media were prepared to cooperate and, as you say, to play by some of the rules. Senator FERGUSON-Except for a couple of instances. Mr Dobell- The rules Richard was breaking were rules agreed with Tim Fischer and a party of parliamentarians; so perhaps there is a different dynamic at work there. Senator FERGUSON-Wasn't it a matter of putting people's lives in danger? Mr Dobell-I am not here to argue that. But from the operation of that coalition force-and coalition operations, as you know, are much more complicated than straight national operations-Defence drew some very positive lessons about how you handle media and how media can actually be a contributor to the success of the mission. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1307 CHAIR- I am going to give the call to the opposition, but Senator Brandis has one more question and so I will give the call to him for that purpose and then go to Senator Faulkner and Senator Collins. While I am talking, I might as well say that what we are focusing on now is access to reporting on the activities of the defence forces, and that is part of this inquiry. The other part of this inquiry relative to the media is what happened when it passed up the chain beyond the control of the defence forces and issues related to the management of the media or the mislabelling of those photographs and things of that nature at election time. That is part of what we are interested in too. If there are not sufficient questions on that to bring out some of those points, I would like your views on that some time before we close. Senator BRANDIS-Do you want them to respond to your question now? CHAIR-No, I am happy to leave it there. If they want to pick it up as they go, that is fine by me. Senator BRANDIS-Just one last thing. The whole gravamen of your submission is that the media have been unfairly constrained in, as it were, enforcing the public's right to know of these matters. It is implicit in that that you believe that there ought to have been more scrutiny by the media of these operations than there in fact was. I take it that you would also agree that the more scrutiny there is of these matters by the parliament, in particular through this committee, the better. Mr Barker-Yes, of course. Senator BRANDIS-The reason I say that is there has been a little criticism of the government senators for asking hard questions of certain military officers to try and get to the bottom of what in fact happened in the episode in question. Do you agree with my view that the military, including on occasions officers in charge of operations, are every bit as properly susceptible to parliamentary scrutiny as any other agencies and individuals in control of agencies of the Commonwealth government? Mr Barker-Of course they are. Mr Dobell-Yes, Senator, I agree. In fact I think that is a very fine principle, and perhaps one that you might extend to ministerial staffers as well. Senator MASON-Thank you, Mr Dobell! Senator FAULKNER-Can I just ask a little about the specific incident we are talking about in relation to the so-called `certain maritime incident' itself. First of all, it appears-and I would like you to indicate to the committee whether this is the case or not-that Mr Reith and his office made themselves very available on some other matters of significant defence interest during the period of the federal election campaign, particularly, for example, the issue of the proposed deployment to Afghanistan. Were you able to discern a very different approach or a different approach between the attitude of the then minister and minister's office on that issue, for example, and on the question of allegations of children being thrown overboard? Mr Barker-There is not much doubt that that incident and those issues were held much more closely. There were no Defence briefings on the matter. As the Public Affairs and CERTAIN MARITIME INCIDENT CMI 1308 SENATE-Select Wednesday, 1 May 2002 Corporate Communications lady has told you, everything had to go through the minister's office. Those matters were held very closely. Yes, there was. Broadly, it was much more carefully held and obviously there was much more political sensitivity about it. Senator FAULKNER-But there is a significant number of contacts between the gallery and Minister Reith's office. As you rightly point out-and we are well aware of this-Defence is hamstrung, the PACC organisation is hamstrung: it cannot respond to your questions and it has to refer all your questions and inquiries to the minister's office. That is how it worked during the election campaign, isn't it? Mr McPhedran-Yes. Senator FAULKNER-In that circumstance, any issue relating to children being thrown overboard or photographs that allegedly related to that incident had to go to the minister's office, did it not? Mr McPhedran-That would be our understanding, yes. Senator FAULKNER-You were always referred by the Defence organisation to the minister's office when you asked Defence questions about those issues? Mr Barker-`Everything has to go through the minister's office' was the standard reply. Senator FAULKNER-And it was a significant number of inquiries that went from members of the gallery, as I understand it, to the minister's office from the period of 8 October 2001 onwards about these issues, and they basically had to go through Hampton in the minister's office? Mr Dobell-That is correct, Senator. I cannot give you a date, but I can recall one day where we were trying to work out how many ships were still at sea in the Indian Ocean. I can remember ringing Tim Bloomfield and saying, `Look, I don't want to know where they are. All I want is a number. It is a straight operational question to you. How many ships are there in the Indian Ocean today?' The response was, `I understand what you are saying, I understand it is an operational issue, but you must go to the minister's office.' Senator FAULKNER-Mr Dobell, you tabled for our benefit the Defence Instruction (General), so you are well aware of it. I noted that there was a canvassing of that issue in the media at the time. I accept that it is certainly the case. So the gallery is well aware of the constraints that Defence personnel, particularly from the PACC organisation, were working under. That is fair, isn't it? Mr Dobell-Sure. Senator FAULKNER-When you look at the role that the PACC personnel in Defence played, is it valid to criticise them? Could they, or should they, have been more proactive in correcting the record when they were hamstrung the way they were? What could they do? What options were available to them? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1309 Mr Barker-I think they brought to it a mind-set, as revealed by Ms McKenry, even before this issue became the political issue it grew into during the election campaign and subsequently. The whole history of PACC since it was set up was one of minimal disclosure about everything and not disclosing anything if they could possibly get away with it. There was the idea that everybody and everything had to be controlled within Defence, so when this issue became the hot political issue it became it was very easy for PACC to just fold its tent and say, `I will go and talk to the minister.' There was no attempt by PACC to negotiate, to carve out some space which I suspect it might have been able to carve out, with the minister's office to maintain some sort of information that was not filtered and preshrunk and sanforised through the minister's office. Senator FAULKNER-I do not think that is altogether fair. We have heard from PACC offi- cials that they were not happy with the situation, particularly when they knew that some of the information that was being made very public by organisations that you work for was wrong and was better described as `misinformation'. They knew that was the case. They were not able to do anything to correct the record. They were hamstrung. How fair is it to lumber Defence with that criticism when they had a level of frustration that was made quite clear before this com- mittee and other Senate committees in sworn evidence? They were very frustrated too. Mr McPhedran-I think they were working within a flawed framework. That is what I think the issue is. Despite the resistance that some members of the Defence PR organisation had to this issue-and I agree with you that there was resistance to it-the fundamental plan they were working under opened them up to this sort of level of control. There was no way out for them. They could not argue the toss. Reith had made it perfectly clear that he was running the show and, under the system of government that we have, that was entirely appropriate, and they just had to cop it on the chin. It would only be through some background briefing that any accurate timely information made it into the public arena. Senator FAULKNER-There was some background briefing, of course, wasn't there? Mr McPhedran-Yes. Mr Dobell-To go back to the metaphor: it is always dangerous to blame the victim. But I do want to come back to this issue of culture. While it is glib, I still think there is some truth in the fact that the Defence Instruction (General) which was signed by Allan Hawke and Chris Barrie is, on any fair reading, a media policy which is anti-media. It is a communications policy which is about not communicating. If you start from that as a cultural base then you are hamstrung. Senator FAULKNER-Isn't it true that, once the media started to question the veracity of the photographs-in other words, started to question whether the photographs that received such wide publicity, as we are all aware, actually related to children being thrown overboard- Mr Hampton then resorted to this extraordinary excuse for not being able to answer your questions, or the gallery's questions and concerns? He ran up this extraordinary excuse, `I can't answer these questions because these are operational matters.' That is when the excuse was run out, wasn't it? Mr McPhedran-I think `operational matters' has been widely used as an excuse for censorship and misinformation throughout not only this affair but also others. But I do recall that that was the excuse used widely by Mr Hampton during this period. CERTAIN MARITIME INCIDENT CMI 1310 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-The three senior journalists at the table would know that often in a parliamentary committee like this I will not ask questions-whether it be police matters, Defence matters, intelligence services or whatever-because I accept that there may be operational matters and I certainly would not think it was appropriate for those issues to be canvassed in a public hearing of a Senate committee. You would all have heard senators like me not proceed with questioning on that basis, wouldn't you? You would have heard us say that in the parliament from time to time. Would you accept that? Mr Barker-Yes, of course. Senator FAULKNER-I just do not understand how the gallery could be fobbed off with an excuse of `operational matters', particularly in relation to these photos. I cannot believe it. Mr McPhedran-I think if you read some of the material that was reported at the time you would realise that we were not fobbed off. We were angry about that and upset. I think that is reflected in some of the material that was written. Perhaps that anger and frustration is crucial to what we are talking about in this hearing today. It was just entirely unacceptable to ask a media flack what colour the sky is today and for him to say it is operational. That was the sort of level we were getting to. Senator FAULKNER-I agree with you, Mr McPhedran. You are absolutely right, and that is the point. There is no way in the world that what a photograph pertained to-a still photograph of children and Defence personnel, or asylum seekers and Defence personnel, in the water-could possibly be an operational matter. How could that excuse possibly be used or accepted in this particular case? Mr Barker-I do not think anybody really just accepted that that was operational and so we do not talk about it. The matter did keep going on, I think. I agree with Ian that we were not fobbed off. People kept after it-they kept asking questions about these photographs. I certainly remember writing a few columns about it. Senator FAULKNER-I recall reading them. Mr Barker-The frustration that Ian talks about does, I think, spill into the attitude we end up having towards PACC and the public servants. You are saying, `You are being a bit unfair-' Senator FAULKNER-But does it end at frustration or do you take it further? I accept that Reith's office treats the gallery and the Australian public with utter contempt. I accept that. Does anyone think of going to the Prime Minister's office? Do any of the journalists in the press gallery do that? Is that the next port of call? Mr Barker-In my experience, the Prime Minister's office refers you back to the line minister in each case. Senator FAULKNER-So gallery journalists did go to the Prime Minister's office at the time? Mr Barker-I cannot answer that yes or no. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1311 Senator FAULKNER-You would know whether you did. Mr Barker-All I received from the Prime Minister's office were occasional criticisms about what I had written. Senator FAULKNER-I am sure you do not get as many as me. Senator MASON-Just like us, Mr Barker. CHAIR-Is this true confession time? Mr Barker-On this issue of whether we were being a bit unfair to PACC, which you raised before, I do not think we addressed that completely. You might say that, in view of the real seriousness of this misrepresentation and particularly in the context of an election, in an organisation with another culture and another mindset there might have been a bit more background and whistleblowing than there in fact was. I think Graeme has seen the centre of this, which is that there was this anti-information culture there before this came up. I think, yes, maybe we have been unfair and maybe we are playing out our frustrations on them. Senator FAULKNER-Yes, that is true: there was an anti-information culture, I accept that. But there has never been a situation-which is the point Mr McPhedran made and you, Mr Barker, made earlier as a result of the Defence Instruction (General) that your colleague Mr Dobell tabled here today-where all these matters however minor, whether they are just minor technical issues, go through the minister's office? For example, was this discussed by the press gallery committee at the time? Mr Barker-I do not know. I am not a member of it. Mr Dobell-No, it is not really the sort of thing. The press gallery committee is much more administrative. It is not the sort of- Senator FAULKNER-You discussed it after the event, and I just wonder what level of frustration there was. I suppose to my mind I would like to understand- Mr Barker-I think our presence here reflects the fact that we take it seriously. Mr McPhedran-I think the covering note from the press gallery committee to our submission reflects the frustration level- Senator FAULKNER-Ex post facto. Mr McPhedran-across the gallery and across all sorts of correspondence at all sorts of levels. Senator FAULKNER-You could properly criticise members of the opposition on this point, too. In retrospect, obviously I could have asked some of the questions that I am asking now a little earlier. You could say that to me; I would acknowledge that. What I think would be interesting is for you, very briefly, to answer this: what would have happened in the election CERTAIN MARITIME INCIDENT CMI 1312 SENATE-Select Wednesday, 1 May 2002 campaign context if the record had been corrected in the campaign when it should have been corrected? I think most people will acknowledge the record should have been corrected around 11 October. Is it your view, as professional journalists, that that would have been viewed as, if you like, a low-level campaign gaffe or a major campaign gaffe? Would it have been a one-day wonder? Would the photographs have received as much or such significant publicity as they did when they were produced and splashed across the front page? What would it have been like? Senator FERGUSON-Is that a hypothetical? Senator FAULKNER-It is. Mr Barker-I think you can make some judgments about that. Senator FAULKNER-It is a hypothetical. CHAIR-It calls for a professional judgment. Senator FAULKNER-Yes. Senator FERGUSON-Landslide to Labor! Senator FAULKNER-Because this was the motivation. What you have to understand is that this was the motivation-or at least part of the motivation-for covering it up at the time. So I am just asking these journalists what their view is. They know what publicity these photographs received when they were produced. What would have happened if people were told, `Oh, it was a different incident'? Mr Barker-The world changes during the period of election campaigns. They are frantic. They come up with this `issue a day'. The whole thing is conducted in a superheated atmosphere. I suspect, if the record had been corrected, it would have been a front page story for a day or so with the opposition trying to play it up and the government trying to play it down. I think it- Senator FERGUSON-What about editorial opinion, Geoff? Mr Barker-Yes, a bit of a splash, and that would have been the end of it. I really don't believe- Senator FAULKNER-When they were found to be false- Senator FERGUSON-A bit of a splash? Senator FAULKNER-you had as a headline in one tabloid newspaper, as you would recall, `It was a lie', with the photographs. Mr McPhedran, I will ask you this, given your current professional role: do you think there would have been a similar reaction in an election campaign context to that which occurred after the election campaign? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1313 Mr McPhedran-Yes, I think it would have been `It was a lie' across the front page, as it was when it was discovered. I am not sure that you could expect it to be any other way. I do not understand how anyone could expect it would be played down, because people were misled and the record was being corrected. Senator FAULKNER-Can I ask this: how did Hampton and Reith flog these photographs to the journalists? I wonder if any of you can draw on your personal experience. It might be best directed to you, Mr McPhedran, because I suspect that in Mr Dobell's current incarnation pho- tographs are not of great interest to him. How were these photographs flogged to the gallery by Reith and Hampton? Mr McPhedran-As I recall, there was a mention of the photographs by Reith during a radio interview. I think that is how it went-I stand to be corrected; my memory might be slightly incorrect here. But I think he mentioned it and said, `We have photographs,' and then the reporter said, `Well, can we see them?' and then it became an all in, `Can we see them? We demand these photographs.' The photographs were then handed over. Senator FAULKNER-How did you get them? Did you get them by email or were they literally handed over as prints? Mr McPhedran-I think they were JPEGed on the email system but, again, there could have been some hard copies passed as well-but I think it was a JPEG situation Senator FAULKNER-On the email system? Mr McPhedran-A lot of our Defence material comes through email. Senator FAULKNER-I gather there are no captions or text attached when that occurs. Mr McPhedran-I believe not. I did not actually see them at the time but I believe that is the case. That has been spelt out here in evidence. Senator FAULKNER-I am just making sure that that is the case as they go to the gallery. Mr McPhedran-That is my understanding. Senator FAULKNER-This is something which the gallery's submission does not canvass. Mr McPhedran-No. Senator FAULKNER-I am not being critical in that regard at all- Mr McPhedran-It is just a physical thing because the JPEGs are dealt with by the photographic staff. The photographic staff are somewhat remote from the editorial staff, and therefore the editorial staff, such as me or others, may not have actually seen the form in which they arrived because the photographers dealt with them and forwarded them on to the papers. CERTAIN MARITIME INCIDENT CMI 1314 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Did Hampton trawl the gallery with hard copy prints of the photographs? Mr McPhedran-No, Mr Hampton was not in the habit of trawling the gallery very much at that particular time or any time really. Senator FAULKNER-And when these photographs were sent to you via the JPEG system, can you say if there was any spin attached to them by the government and, if so, what it was? Can you or any of the other witnesses say that? Mr Barker-I was not involved with the photographs. My first knowledge of a photograph was seeing it on the Australian with the claim that this was the children being thrown overboard. It was a very fuzzy photograph, and my first reaction to seeing them was, `Well, this photograph really does not show anything at all.' I do not know whether the government or anybody else put any spin on them at all, but the first photographs, if I recall them, were rather closely cropped and showed very little and were very unfocused photographs. Senator FAULKNER-Do you think it is fair for me to say to you that the gallery seemed to swallow these photographs hook, line and sinker? Mr Barker-Some of them did, yes. Senator FAULKNER-Do you feel like dills? Senator FERGUSON-That will not be reported, Senator! Senator FAULKNER-I am serious. How do you feel about it? Mr Barker-My own view would be that the first report in the Australian made the Australian look fairly silly. Senator FAULKNER-The front page story? Mr Barker-Yes, in the way the matter ultimately played out, because there seemed to be a fairly uncritical acceptance that they were what they were said to be. Senator FAULKNER-I know Senator Collins wants to ask you about that, so I will not. Mr McPhedran-How we feel is reflected in our submission. Senator FAULKNER-I understand that. Senator BRANDIS-I wanted to ask something following on from one of your questions. May I do that? Senator FAULKNER-If you want to interrupt me, that is fine. You know I am much more generous than other people. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1315 Senator BRANDIS-I know there is a very high degree of artificiality in trying to reconstruct what may have happened, to trace through the likely news coverage of what might have happened and to trace through, and further remove from reality, the political consequences of that in a highly mobile, electoral campaign environment, which is essentially what you are being asked to do by Senator Faulkner. However, let us assume that this exercise is not- Senator FAULKNER-That was a commentary, as opposed to a question. Senator BRANDIS-totally useless, and one can offer observations about that. CHAIR-I think they are being asked as professional journalists to make a professional judgment. Senator BRANDIS-Was media access to these events to the north-west of Australia as extensive as you would have wished it to be? Had there been television or news coverage of the event on 24 October, when a child was thrown into the sea from the SIEV7 vessel, what effect do you think that would have had in terms of the media treatment of these episodes? In particular, do you consider that the child-throwing incident from SIEV7 would have been a major news story? Mr Barker-Obviously, I think a lot of things would have been major news stories. That would have been one of many, if we had been able to witness the spectrum of events that went on on those ships and the way they were dealt with. I would have thought the whole thing would have been a much more fully and floridly reported exercise. I get quite worried when the media will accept official photographs from a department and print them almost uncritically. Senator FAULKNER-Without captions? Mr Barker-Without anything. That is not just military; I see this often in newspapers. Senator FAULKNER-But the photographs are being misrepresented, aren't they? Mr Barker-Yes, I think they were being misrepresented, but even when- Senator FAULKNER-And no-one can really blame the media for that, can they? At the end of the day, the government misrepresented what these photographs showed, didn't they? Mr Barker-Yes, I accept that. But I also say that, in other circumstances, the media tend to just uncritically accept photographs without knowing whether they are being misrepresented- well, they did not know on this occasion. I have a prejudice in favour of the media sending their own photographers and taking their own pictures. Senator BRANDIS-And had you been able to do so, as you and your colleagues have said you ought to have been able to do, and cover the sequence of events as fully as you would have wished to, the pattern of conduct that this committee has heard so much evidence of-including repeated threats to the wellbeing of children and the incident that we know happened on 24 October, when the child was thrown overboard-would have been a big story, wouldn't it? CERTAIN MARITIME INCIDENT CMI 1316 SENATE-Select Wednesday, 1 May 2002 Senator JACINTA COLLINS-Thrown? Mr Barker-I think there would have been much more detailed reporting of the conduct of both the asylum seekers, or whatever you like to call them-SUNCs, I think you call them- and also the Navy personnel and the way they dealt with the situation. Of course there would. Senator BRANDIS-May I suggest to you that that would have been an even bigger story than the event of 7 October. Mr Barker-I really do not know. It would depend on what-we just do not know what played out there. Senator FAULKNER-But it would not be as big a story as a deliberate misrepresentation and cover-up during an election campaign, would it? Mr Barker-I do not believe so, no. The press likes action and it likes events moving. Senator FAULKNER-It likes a good story. Mr Barker-It likes a good story. Senator BRANDIS-Mr Barker, you do not say there was a deliberate deception and cover- up at this stage, do you, because you have told us you are not prejudging the evidence? Senator JACINTA COLLINS-Oh, for goodness sake, Senator Brandis! Mr Barker-No. My whole experience right through this period was that we were given a story and it was very difficult to check it. One is left with the strong impression that there has been a cover-up and one has been seriously misled. Senator FERGUSON-So you are just as disappointed that you were not able to report accurately and timely on SIEV5, SIEV6, SIEV7, SIEV8 and all the other incidents that happened during the election campaign too-just as disappointed? Mr Barker-Yes. Mr Dobell-I think you have both put your finger on a strange element in the logic of the whole thing. We were told this was a policy to police Australia's borders, that this was a policy to deter asylum seekers setting out, but we were given no access to actually report the policing action or the deterrent effect. Senator FERGUSON-Senator Faulkner is trying to suggest that misinformation was given in order to highlight one particular incident which was to the advantage of the government. SIEV5, SIEV6, SIEV7 and SIEV8- Senator FAULKNER-I was actually talking about a cover-up. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1317 Senator FERGUSON-Surely, if the government had wanted to use that information for electoral purposes, it would have read all of that information out as well. Mr Dobell-As I say, Senator, with regard to the logic of the declared policy which was a policing action and a deterrent action-and the deterrent part as I remember was very much highlighted-one would have thought that one of the easiest ways to get the message out would have been to give domestic and international media access to get the story out in the most vivid fashion, as you suggest. Senator FERGUSON-But they wanted to use it for electoral purposes. Mr McPhedran-I think your question is a valid one and I think that is one that should be asked of the officials and ministers involved. Senator FERGUSON-We have asked that repeatedly. Mr McPhedran-Why wasn't that material made public like the 7 October incident? That is a very valid question. Senator FERGUSON-We have been asking. Senator BRANDIS-It follows from what you say, Mr Dobell and Mr McPhedran, that in fact to the extent to which the government or individuals within the government might be accused of having a political agenda, the policy did not serve that political agenda because what you call a cultural secrecy concealed events which, had they been publicly known at the time, would have served the government's alleged political agenda very well. CHAIR-You have asked and answered. Mr Barker-That depends. Senator BRANDIS-Do you agree with that proposition? CHAIR-That was asked and answered. Senator BRANDIS-It seems to follow from what you just said. Mr Barker-No, because it would depend on what in fact happened in all of this; we just do not know. Senator BRANDIS-If the evidence was, as we now know it to have been from the evidence that has been brought out before this committee- Senator JACINTA COLLINS-The evidence you have misrepresented. CHAIR-Order! Senator MASON-I think we all agree that there was a pattern of conduct. CERTAIN MARITIME INCIDENT CMI 1318 SENATE-Select Wednesday, 1 May 2002 CHAIR-Order! Senator Faulkner had the call. He deferred to you, Senator Brandis. Senator BRANDIS-Yes, I have finished. CHAIR-Back to you, Senator Faulkner, and then I will go to Senator Collins. Senator FAULKNER-You are right. I do not think I should have allowed myself to be so generous to Senator Brandis. CHAIR-I am just a generous person. Please go on. Senator FAULKNER-It is a weakness we both have, Mr Chairman. I will just ask you for a comment on this final issue. I do not know if you are aware of evidence that we extracted from Mr Humphreys about some of the background to the PACC involvement in the development of the Defence approach. He gave evidence to the committee that they had ministerial instructions not to humanise or personalise the asylum seekers. I think one or two of you may have made some comment on that evidence and that is why I ask you. I would like you to appreciate that I do not ask you this on behalf of the gallery; I can really only ask you this question as individual journalists: how do you react to that level of incident and media management? Mr Barker-I was aware of that evidence. I heard it and I have written on it. I found it one of the more disturbing pieces of evidence to come out. I gather that evidence has not been challenged at this stage. When I heard that, it just offended my whole notion of the way human beings ought to be treated. I do not want to get into a philosophical discussion with Senator Mason now, but my best answer to what you ask me is to read the column I wrote last Monday week. Senator FAULKNER-I am interested in understanding: is this a different type of media spin? Mr Barker-It certainly was unique. I had never heard of anybody ordering military photographers, `Photograph only the heroic deeds of our boys and for goodness sake do not photograph these refugees in any way that will humanise or personalise.' That seemed to me to be a new level of media management. It is alarming. Senator FAULKNER-Thank you. Could I ask Mr Dobell or Mr McPhedran whether they see this as a different form of censorship-or cover-up, if you like. You may not care to comment on it. Mr McPhedran-I do not know that it is different. I think it is disturbing when they ban the media from attending an event or reporting on something, when they bar free access by the free press and have only their own photographers photographing events or only their own system censoring the images that have been picked up by Navy sailors or whatever. Whether it is new or not is a moot point. Mr Dobell-I come back to the point I began with. We were told that we could not cover, for operational reasons, what was happening on the Tampa and later events. I can see no operational reasons why we should not have been able to cover that very important event, and the events CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1319 that followed, fully. That is why I suggest to the committee that the military must be responsible for reporting and allowing reporting of operational issues-and that is what this was. Senator JACINTA COLLINS-Gentlemen, your earlier verbal comments and your submis- sion cast Defence and the bureaucracy into a particular framework, and I will go through a few of those. This relates in part to your earlier discussion with Senator Brandis and with Senator Faulkner. You have indicated that Defence was working in a flawed framework-and perhaps that could apply to the cultural component of your comments-Defence not being innocent vic- tims, and the bureaucracy being blatantly manipulated. I think that was in the submission. To what extent do some of those criticisms also relate to the media and the framework in which the media was operating during that period? I think it is implicit in some of your comments and in your submission, but you are more explicit in your criticisms of the bureaucracy as opposed to the media. Mr Barker-I think we are probably open to criticism but there were times when too much was accepted too uncritically. This comes about partly because of the attempted manipulation by the government and partly because of the rush with which newspapers are put together and printed every day. Journalists themselves are flawed and imperfect people. I think at times we do go for the quick `good story' without pausing long enough to think critically enough about what we might do. There is enough blame to go around in all this, but I do think on these particular issues the primary reason for what went wrong was the campaign, which was sustained right through the period, to hide and misinform. Senator JACINTA COLLINS-I do not think there is any question about that point. Mr McPhedran-In our defence, though, I would say that reporters were asking questions- hard questions-about what they were being presented with on a daily basis, every hour. Short of getting a helicopter and rappelling onto the ship and having a look, we were confronted with a brick wall. At the end of the day, there is only a certain amount that a reporter, with the pressures of deadlines that Geoff has talked about, can do. I think the bases were pretty well covered and, short of writing a story saying, `The government is lying' without any evidence, we were hamstrung. Senator JACINTA COLLINS-I understand that element of it, but there is a small component of this situation that pertains to the media that I want to explore further-and I certainly do not want you to take it as an indication that anyone believes the blame lies at your door. One of the problems for the media which you mentioned earlier was being able to get a little further into a story. You were hitting a brick wall and you were not able to get a little further into this story because of that. However, when you encounter that, some of the reporting actually reinforces the flawed system. I want to take you to a particular example because I think it highlights that perhaps this lesson was not learnt from the kids overboard incident. I am referring to a page one headline in the Australian which stated, `Boatpeople tried to kill child: Libs'. Senator Brandis accused you of prejudging. This incident is a classic example of prejudging, because the incident that occurred there was the reported strangulation case. When we finally got beyond the lack of any primary evidence and finally saw witness statements, it was pretty clear that it was not a case of strangulation- Senator BRANDIS-It was not clear, Senator Collins. CERTAIN MARITIME INCIDENT CMI 1320 SENATE-Select Wednesday, 1 May 2002 Senator JACINTA COLLINS-It was very clear, Senator Brandis. Senator BRANDIS-At the very best for your case, there was one primary document that supported it and one primary document that left it in doubt. Senator JACINTA COLLINS-I am not going to debate this here, Senator Brandis, you can have this debate at another time. This is my chance to ask questions- Senator BRANDIS-You are just making false claims. Senator JACINTA COLLINS-No, I am not. CHAIR-Order! Senator BRANDIS-You are making false claims. Senator JACINTA COLLINS-Rear Admiral Smith made that comment in evidence. You might not like it, but that is what he did. Senator BRANDIS-On a point of order, Senator Collins is making false claims. CHAIR-Order! I think Senator Collins has made a statement which, in the way in which we have dealt with all of this, is justifiable. Senator BRANDIS-I would argue that. CHAIR-It may well be arguable- Senator JACINTA COLLINS-You go and argue with Smith. CHAIR-but if we were to apply that standard to everything that every senator says, we would not get very far at all. Senator BRANDIS-Well, we haven't really. CHAIR-Indeed, but we would have been even further behind. Senator JACINTA COLLINS-Mr McPhedran, do you accept the proposition that some media behaviour, in reporting simply on sensationalist reports rather than, to use your own words, to get into a story properly, reinforces the government's very behaviour here? Mr McPhedran-That is a difficult question. I will have to think about that; I could get myself into a lot of trouble here on a whole lot of levels. The desire to get a story and to get a result is a fairly heavy pressure and if you were not working in the game, you would not understand the daily pressure that that brings to bear. I think you are, I guess, fundamentally accusing us of playing into the government's hands on an issue. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1321 Senator JACINTA COLLINS-No, I am not accusing you of anything. I am reflecting on what behaviour has occurred and looking at what potential solutions could avoid this problem in the future. I am particularly concerned about this case because, when we had a press gallery submission and, given all that has transpired, we still had a front-page headline in the Australian on 26 March reporting claims for which there was no primary evidence at the time and one week later when the primary evidence arrived, Rear Admiral Smith tells us that that primary evidence indicates that the event in all likelihood did not occur. Mr McPhedran-I would not be able to comment on any of that because I do not know the issue. However, if you are saying to me that the media was perhaps played a bit during this af- fair because of the need to get a story, perhaps that is true, but we have to rely in good faith on what we are being told by governments and people of all persuasions. I think that is the basis on which this material was written. Mr Barker-Can I just say that I do not know anything about that issue, but if the general point is that periodically people in public life make sensational statements about public affairs-and as I said, I am not commenting on this at all-the press will report them just because they are like that, and they will report them somewhat uncritically. However, one of the problems is that if the person is a person of some authority in his profession, pressure group or political party or wherever they come from, the press cannot ignore it either. Even if something turns up on your desk late in the day, and `so-and-so has said this so we had better report him,' the press is not in the business of censoring out views that they might feel are a bit suss here and there. Senator JACINTA COLLINS-No, but the suggestion in this case- Mr Barker-I don't know that case. Senator JACINTA COLLINS-is that, yes, you put the rider in as `Libs'-as a claim of the Libs-but it was still run as a lead headline on the front page of the Australian that day. Mr Barker-You should ask the editor of the Australian about that. Senator JACINTA COLLINS-Perhaps we should. But the general point is that the media had already indicated in its submission, I think at that point, that in your experience the government had been peddling misinformation on this issue and, then, uncritically it was reported again. That is my general point. Mr Dobell-We have talked about the Defence culture, but if we start talking about the culture of the way the press gallery interacts with you people, we could be here for weeks. Senator JACINTA COLLINS-That is true. Mr Dobell-There is a very old wire service line that says, `Well, it was true at the moment I filed it'-that is, the wire service culture, the journalist culture, is that you file it. You do not sit on it; you don't judge it; you file it. If subsequent events prove that it is wrong, you file again. Senator BRANDIS-Presumably your editorial judgment is influenced by the existence or non-existence of source material to support an allegation. CERTAIN MARITIME INCIDENT CMI 1322 SENATE-Select Wednesday, 1 May 2002 Mr Dobell-And the person who is speaking, too. Senator BRANDIS-In the particular case that Senator Collins has referred to about me reading to a witness from a document written in the Department of Defence and inviting the witness to comment on it, is the existence of a source within the defence department who re- ported that as a matter of fact a relevant editorial consideration? Mr Dobell-I would have thought so. Senator BRANDIS-Thank you. CHAIR-The fact that the headline said ` Libs' probably led me to believe, in the context of all of this, that it was a lie in any case. Senator JACINTA COLLINS-The principal issue here is the point that Mr McPhedran made earlier about the hampering of the media's ability to get a little further into a story. We all know that, in the SIEV incidents presented by the government in this case, the media were hampered in their reporting to us. They were constrained on precisely what context they could report, and when we had the full context on those stories we found a very different picture, which was that the strangulation did not occur. Senator BRANDIS-Mr Chairman, there has to be a point at which you, with respect, ought to exercise a bit of control over unfair questions. Senator JACINTA COLLINS-Don't be a hypocrite, Senator Brandis. Senator BRANDIS-When one of the source documents plainly verified the secondary document which was quoted to the witness-the source document was not available at the time and the second source document was ambivalent about the matter. When both source documents-the clear one and the ambivalent one-were available at the soonest opportunity, they were put to the relevant witnesses and those witnesses were invited to comment on them. Mr Chairman, there is such a thing as a question based on a false and misleading premise- Senator JACINTA COLLINS-Which are most of yours. Senator BRANDIS-and I submit to you that you ought to exercise your authority to rule such questions out of order. Senator JACINTA COLLINS-Oh, for goodness' sake! CHAIR-Yes, and I do. Please proceed, Senator Collins. Senator JACINTA COLLINS-Mr Barker, the final issue that I want to cover is in relation to your report this morning. I raise this matter because of the comments that you made earlier about there being, perhaps, a new and slightly different environment under the new minister. Can you explain to us why, in your view, it took two months for that report to make public the concerns that you were commenting on? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1323 Mr Barker-Because I received a copy of Senator Hill's letter only a couple of days ago, and I was not aware of it until then. On seeing it, I thought it was interesting and that it reflected, in a way, the more open approach and willingness to offer information that we are now seeing from Senator Hill's office. I received a copy of that letter yesterday or the day before, and the timing of it was purely when it came into my hands. Senator JACINTA COLLINS-I am not suggesting any delay at your end. I am asking you whether you are critical of the fact that these concerns have been on the public record now for quite some time. The letter that you got was a response to a letter that Mr Crean wrote to the minister, but Mr Kevin has been on the public record, his submission has been on the public re- cord and it has been a matter of commentary within this committee for months now. Why do you think your report occurred on the day that Mr Kevin is appearing before this committee? Mr Barker-Because I received the document just a couple of days ago. Senator JACINTA COLLINS-No. I know about your end, but I am asking why this information has become available at this time from this minister. Mr Barker-I cannot speak for the minister. Actually, I was not clear from looking at the letter about when it was dated-my copy of the letter anyway. That might be something that you would be better to ask Mr Kevin about. If I might just say, that incident is a very disturbing one-300-odd people drowning-but there has been a lot of comment in this committee about it and Mr Kevin has written fairly widely about it. It is not something that has been entirely ignored. Why this- Senator JACINTA COLLINS-The answers were not that complex though, were they? They should not have taken two months for the minister to dig up. Mr Barker-That is a question for Senator Hill. I just do not know. Senator JACINTA COLLINS-Precisely. Mr Barker-I just do not know. Senator JACINTA COLLINS-Get him to come. Mr Barker-I just do not know. CHAIR-Are we all done? I want to break for morning tea and move to the next witness. Senator FERGUSON-I have one question. This is a very brief question and it might not even warrant an answer. I notice that we have had a lot of witnesses before this inquiry-and there seems to be dissipating interest from the media and the general public, I might say-who went unreported over the last couple of days. I just wonder whether you can assure us that the appearance of the press gallery will get at least some coverage tomorrow in the newspapers. Mr Barker-I would not have a clue, frankly. CERTAIN MARITIME INCIDENT CMI 1324 SENATE-Select Wednesday, 1 May 2002 Mr McPhedran-I could not possibly comment on that. CHAIR-I think we are done at our end. I thank you very much for your attendance this morning. We will shortly go to morning tea. I have got an announcement to make though: later on in our program today we had provided for teleconference evidence to be given from the asylum seeker camp on Manus Island. We now have a communication from that camp which, without going into it, means that that evidence will not be able to be taken today and the com- mittee will have to consider the correspondence, which means that we will not be hearing from the Manus Island Asylum Seeker Camp Committee at 1.15 p.m. As a consequence, I have spo- ken to the secretariat. Over morning tea we will try to confirm a reorganisation of the program for the day. There is a view expressed by many of the committee-and that includes me-that, if we can go to the lunch for the Prime Minister of Japan without impeding any of the other witnesses or inconveniencing the structure of this committee, then we should. But let us confer about that over morning tea. We are now adjourned. We will come back at 11.30 a.m. and resume with Mr Kevin. Proceedings suspended from 11.18 a.m. to 11.31 a.m. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1325 KEVIN, Mr Tony (Private capacity) CHAIR-I welcome Mr Tony Kevin. I have in front of me a document embargoed until delivery and release by the Senate select committee, and it is headlined `An opening statement'. I assume that is yours. Would you like to present it to us? Mr Kevin-Yes. It is quite short, just over 10 minutes. I live in Canberra. I retired from the Department of Foreign Affairs and Trade in 1998 after 30 years of career service. My last postings were as ambassador to Poland and to Cambodia. My previous 13 years of service in Canberra, in the departments of Foreign Affairs and Prime Minister and Cabinet, involved senior level policy advice and policy coordination on foreign affairs, defence and security matters. In Cambodia, I worked closely with members of the Australian Defence Force who were conducting an Australian defence cooperation program. I had the pleasure on one occasion of sailing for some hours off the Cambodian coast as a guest of the Australian patrol boat HMAS Dubbo, which was on a goodwill visit to Cambodia. I greatly admire the professionalism, camaraderie and integrity of the Navy and of the Australian Defence Force as a whole. My testimony today is not intended to discredit or dishonour them. Something went seriously wrong in the information chain in Australia's border protection system during October 2001 that had terrible human life consequences. A boat left Bandar Lampung in southern Sumatra on 18 or 19 October, bound for Christmas Island, carrying over 400 people, more than double the average load of nine suspected illegal entry vessels-SIEV vessels-of similar size that were intercepted by the Navy between September and December. This boat was grotesquely overloaded, under armed duress and probably also sabotaged. It sank on 19 October, drowning 353 people and leaving only 44 survivors. It is important to note that the exact location of the sinking is in dispute. The original news report was that it sank 80 kilometres south of Java, out in the Indian Ocean. It is now being claimed officially that it sank in the Sunda Strait, between Java and Sumatra. Pending the production of clear evidence, I believe the original report is more likely to be true. I will be pleased to set out my reasons for this belief, and I hope I will be able to do so. Coastwatch Australia knew from an intelligence source when this boat had left, where from, its likely speed and that it was heading for Christmas Island. This information was not given to Operation Relex or the Navy or the RAAF or Jane Halton's People Smuggling Task Force. Coastwatch, which comes under Customs and is an integral part of Australia's border protection system, did not pass this information on to the sharp end of Australia's border protection system-that is, the aerial surveillance and naval interception force units belonging to Operation Relex. As a result, the Navy was not told about a grave safety of life at sea situation that was taking place only 150 nautical miles north of the nearest Navy ship, the frigate HMAS Arunta. Had Arunta known, it could have had its onboard helicopter at the site within 30 minutes. Arunta itself could have been there within four or five hours fast steaming. But Arunta was not told, Operation Relex was not told, Jane Halton's PST was not told. Eventually, Coastwatch told the Australian search and rescue authority, Rescue Coordination Centre, RCC Australia. The Navy and Operation Relex finally found out on Monday, 22 October, three days after the boat had sunk. They found out from an overdue notice issued by the Rescue Coordination CERTAIN MARITIME INCIDENT CMI 1326 SENATE-Select Wednesday, 1 May 2002 Centre. The RCC issued this boat-overdue notice after Coastwatch advised it that the boat had failed to appear at Christmas Island on its estimated arrival date. It is not clear when Coastwatch advised RCC or when RCC issued the overdue notice. The RCC notice was only sent to its Indonesian search and rescue counterpart, BASARNAS. Oddly, the notice was never made public or circulated to all shipping, but the Australian's correspondent in Jakarta, Don Greenlees, got to hear of the overdue notice. It was reported in one of his 24 October stories on the sinking. When I asked both Coastwatch and the Australian Maritime Safety Authority a few weeks ago for further information about this overdue notice, they refused to tell me anything on the matter. Why was information about a service departure, which Coastwatch clearly had, not given to Operation Relex and the Navy until far too late to save lives? How can such an impor- tant piece of information have been shunted off into a siding for up to three days at a time when the Australian government was giving top priority to its tough new border protection exercise, Operation Relex? An argument of administrative error is not credible. The ADF, Coastwatch, our intelligence source agencies and the RCC are all efficient organisations. The first three were working together on a top priority, whole-of-government border protection operation. They would not have mishandled by accident the information that came into the Australian system about this boat. If this reporting was taken out of the information chain, this was done deliberately. Assuming the original intelligence report on this boat's departure had said that this grossly overloaded boat would soon founder and would not reach Christmas Island, there may well have been a view in Canberra, `Well, we don't have to worry about that one.' Somewhere along the line-more probably at a political level because I cannot see that such a serious decision would have been taken by senior officials without direction from ministers or their senior policy advisers-a person or persons may have read this report and decided that it should not be passed in to the official PST and Operation Relex information chain. Had PST and Operation Relex had this information, they would have been duty-bound to investigate a known or suspected SOLAS, safety of life at sea, emergency. This may have been seen as a complication and a distraction from the Navy's priority task at the time of intercepting and repelling asylum seeker boats that were reaching Australia's northern waters. `This one is not our problem because it clearly is not going to arrive. Don't tell the Navy because, if we do, they will have to honour their safety of life at sea obligation.' That is the central thrust of my testimony today. It is obviously a very serious matter. I submit that all of the Australian border protection system, not just the Navy, has a safety of life at sea obligation. With respect, I believe that obligation also now falls on this committee under its term of reference (c). Mark Metherell in the Sydney Morning Herald of 3 September 2001 quoted Prime Minister Howard as saying: `We don't in this nation sink boats.' Mr Howard assured that Australia's interception operation would be conducted lawfully and decently, yet on 19 October, in the middle of an intensive Australian border protection exercise, only a few hours steaming time away from HMAS Arunta, an asylum seeker boat sank in the most terrible way, drowning 353 men, women and children. I hope that senators might have had a chance to read the heart-rending accounts of survivors that were attached to my original CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1327 submission. There are key issues at stake here both of human rights and justice and of the Australian Defence Force's integrity that need to be fearlessly investigated. The death of 353 people on their way to Australia, in my view, transcends normal restrictions about the privacy and deniability of all intelligence matters. In any case, the questions that I ask today do not go to the sources of Australian intelligence about this boat. The important thing is that such information was in Canberra already and that it was mishandled in Canberra, with callous disregard for human life and with tragic conse- quences. There is clear public knowledge now from Australian official sources that there was some Australian official foreknowledge of the circumstances that led to the deaths of these 353 human beings. This cries out for explanation and accountability. Also, to leave the public record as it now stands would cast a serious slur on the honour and competence of our Navy and ADF generally, a slur that I do not believe should be laid at their door. I will be pleased to offer detailed testimony this morning which is mostly based on previous testimony offered by others at this committee and also on a letter from the Minister for Defence, Senator Hill, to the Leader of the Opposition, Simon Crean, and which Mr Crean sent on to me. I would like to table this letter at the end of this opening statement. My testimony will support the following propositions: (1) Arunta was 150 nautical miles away at the time this boat sank. Arunta was preparing for, or engaged in, the interception of SIEV6. Arunta did not know about the boat that was travelling in grave danger of sinking or had sunk already. Had Arunta known, its safety of life at sea obligation would have taken precedence over its interception mission. It would have immediately taken action to assist the threatened vessel or to try to rescue survivors during the 22 hours that they were in the water. (2) All the Navy's SIEV interceptions-and we now know there were 12 of them between September and December-relied on a three-stage process: first, a timely and accurate intelligence report giving place and time of embarkation, intended destination and number of passengers; second, aerial surveillance up to as close as 30 miles from the coast of Indonesia in the window of sea where the boat might first appear; and, third, the Navy's interception in the contiguous zone adjacent to Ashmore Reef or Christmas Island. For all this to work, information about SIEVs needed to flow efficiently through the information and command chain in Canberra. (3) An efficient system of Australian intelligence gathering was in place. (4) The second and third phases of Operation Relex had very good success rates. Only one out of 12 intercepted SIEVs arrived unexpectedly, and this was SIEV2 early in the operation on 10 September. By mid-October the border protection system was already highly reliable. (5) The testimony in this committee and Senator Hill's letter show that data on the vessel that sank was taken out of the information chain in Canberra and handled very differently from those 12 other SIEVs. We need to find out why. I now table Senator Hill's letter, which I regard as a public document. Mr Chairman, I believe you already have that letter. CHAIR-I have a copy of it, yes. Mr Kevin-I also table a set of illustrative maps and notes that may assist senators in their further investigations. I believe you have that information also. This completes my opening statement, the text of which I will be pleased to make public if the committee so permits. Thank you. CERTAIN MARITIME INCIDENT CMI 1328 SENATE-Select Wednesday, 1 May 2002 CHAIR-The letter is from Simon Crean to you, Mr Kevin, so it is your property. Is there a view in the committee about releasing this letter? Senator BRANDIS-I do not see any difficulty. CHAIR-I do not see any difficulty either. Okay, that is done. I take it that the maps are associated with your submission, Mr Kevin. I do not see any difficulty in releasing them in that context, so that is done as well. Thank you for your comments. Senator FAULKNER-Mr Kevin, I have a question arising from paragraph 4 of your opening statement that this boat was grotesquely overloaded, under armed duress, and probably also sabotaged. I think it is unarguable that it was grotesquely overloaded, but could you explain to the committee in a little more detail why you described the boat as under armed duress and probably sabotaged? Mr Kevin-I would be glad to. I am very grateful to Senator Brandis for having assisted in the publication of all this information about these 12 boats, and the matrix that Rear Admiral Smith presented is really quite invaluable in terms of public information and transparency. Most of these boats were about the same size; a few were smaller. When you look at the numbers that were loaded-and I think it is important to read out the numbers-you see the point that I am making about it being grotesquely overloaded. I will read the numbers out quickly: SIEV1, 228; SIEV2, 132; SIEV3, 129; SIEV4, 223; SIEV5, 238; SIEV6, 227-SIEV7 seems to be a smaller one, so I will not include that-SIEV9, 152; SIEV10, 164; and SIEV12, 162. All of these boats were roughly 19- to 20-metre fishing boats and they all carried numbers of people of that order. Honourable senators have seen photographs of how overcrowded these boats were. Just imagine a boat like that with about 420 people going on board. I rely for my information about the circumstances of loading on essentially two very high quality reporters. Senator BRANDIS-Mr Kevin, before you go on, just to clarify my understanding, are you saying that our knowledge of the size of this vessel is a fair inference from the fact that the other vessels we know about were 19 to 20 metres, so you invite us to infer that it was probably the same size? Mr Kevin-No. I have more information on that, Senator Brandis. Senator BRANDIS-I am sorry. Mr Kevin-One of the reports I have-but I may not be able to lay my hands on it immediately-says that it was a 19- or 20-metre vessel. I will get that information for you later. The story by Don Greenlees on 24 October went into great detail on how the boat was loading. The story by Ginny Stein on the ABC went into even more detail. She said on PM on 24 October: People are saying that in the middle of the night they were taken down to a port, they can't say exactly where, they weren't aware of it, it was dark, they could not see the sign. But from there they were put on small boats and taken out to the ship which was moored some way out to sea. When they got there, what they saw was a boat that was very, very, low in the water. They realised it was horribly overcrowded and some did not want to get on board, but they were forced at gunpoint to do so. On land, people also knew about what was happening. There were about 30 police there and they said that they did not want to go on either. At that stage, police it's claimed, beat them and forced them at gunpoint to get on the boats, and CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1329 there police were in those boats where they had about 25 people at the time being taken out, and they were forced to get on the vessel. She went on: It was the same story that was told by virtually everyone there today that we spoke to. They had the same story- that the police: had guns, they were preventing anyone leaving. They forced them on to the boat. Senator FAULKNER-And that is why you used the terminology `under armed duress'? Mr Kevin-Correct. A similar story was told by Don Greenlees. Senator FAULKNER-By the way, I was making clear that it seems to me to be unarguable that it was grotesquely overloaded. I appreciate you providing that background. You also made the statement that the boat was also `probably sabotaged'. Could you indicate to the committee why you make that point? Mr Kevin-That judgment comes from the whole improbable list of coincidences associated with the sailing, sinking and subsequent rescue and return to Jakarta of the 44 survivors from this boat. One reaches a point where the string of coincidences is simply so long that it cannot be attributed to coincidence any longer. As the boat was leaving, there were reports of a long crack in the hull requiring bailing almost from the start of the voyage. The engine failed after 30 hours of travel. That is fairly unusual because, even though these boats were at the end of their useful life, the engines were generally reliable enough to get them to Christmas Island or Ashmore Reef. Being so grossly overloaded, the boat overturned very quickly once it lost way, and that in itself indicates that the overloading was a kind of a strategy of sabotage, quite possibly. It broke up into planks almost immediately after it foundered, suggesting that the hull may have been weakened, and that ties in with the long crack in the hull. Then we have this mysterious story of boats in the night, with searchlights, that witnessed the scene but did not try to rescue survivors. Then we have the miraculous arrival the next day of one or two fishing boats that say they saw luggage floating in the water and came out to look in an area where they do not normally fish. Then we have all the survivors being picked up by one fishing boat which turns out to be from Jakarta, 300 kilometres away-down here in the Indian Ocean, 300 kilometres away. It has not yet started to fish. It does not have any fish in the hold. It immediately drops everything and proceeds to take them back to Jakarta. Senator FERGUSON-The boat came from Jakarta; therefore you are assuming that it was in the Indian Ocean, not the Sunda Strait. Mr Kevin-Yes. Senator FERGUSON-So you are making that assumption yourself, that it is not the Sunda Strait? CERTAIN MARITIME INCIDENT CMI 1330 SENATE-Select Wednesday, 1 May 2002 Mr Kevin-No, I am not making that assumption. The original report by Don Greenlees is that the boat sank 80 kilometres from land, into the Indian Ocean. Senator FERGUSON-Is that a paper report? Mr Kevin-Yes. And I would be happy to elaborate on that, but perhaps I could finish my reply to Senator Faulkner. Senator FERGUSON-It is just that you said the Indian Ocean-because the official report is that it sunk in the Sunda Strait, that is all. Mr Kevin-Yes. As I have said in my opening statement, Senator, that is an important point at issue. Senator FERGUSON-Yes, I understand that. Mr Kevin-As I say, the passengers were taken back 300 kilometres to Jakarta on this fishing boat that had not yet started to fish. They were transferred to another boat halfway along and they were met by Indonesian immigration police on arrival at Jakarta. All of that to me sounds an improbable chain of coincidence and it suggests that the sinking may have been a managed event. But that is not central to my testimony today. The central point about my testimony today is the whole issue of how information came down to Australia and how, once it got to Australia, it apparently was not handled in the normal Operation Relex chain of information and command, thereby creating a safety of life at sea situation that could have been prevented. Senator FAULKNER-No, but you did make the statement in your opening address that the boat was probably also sabotaged. I was keen to understand why you made it. Is it those factors that you have just outlined to the committee that draw you to that conclusion? Mr Kevin-Yes, those factors-primarily, the gross overloading. That strikes me as not sensible commercial conduct on the part of a people smuggler who wanted to remain in business. It is not very good for business to have 353 people drown. The substantial presence of uniformed personnel, whether police or military, suggests to me that the people smuggler's operation may have been taken over by a stronger force. And I am not saying here the Indonesian government. Indonesia is a very lightly governed country and it is entirely conceivable that some kind of operation may have been developed that the Indonesian government knew nothing about. Senator FERGUSON-Who are you suggesting sabotaged it? Mr Kevin-I am not suggesting anything at this point. I am just setting out the known facts about the departure, the sinking and the rescue and saying it creates a very great puzzle. And that therefore throws light on the importance of establishing what happened to the information about this boat when it got to Canberra. Senator FERGUSON-It is just that all the other evidence of sabotage that we have had has been sabotage by the unauthorised arrivals. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1331 Mr Kevin-I am sorry, I did not quite hear that. Senator FERGUSON-All the other evidence that we have heard previously is that any sabotage that has occurred has been done by the people attempting to come to Australia. Mr Kevin-Are you talking about after interception by Operation Relex forces? Senator FERGUSON-Not always after interception, either, I don't think. Mr Kevin-I understood from Rear Admiral Smith's summary of events that most of these things happened after interception. Senator FERGUSON-Most of them; that is true. Senator FAULKNER-But you have not drawn any conclusions about who or what might have been responsible for this probable sabotage? Mr Kevin-Senator, I think we are dealing with a very complex and serious mystery here. The way into the truth, I suspect, will be quite long and tortuous. I do not think, in the limited time available for this committee hearing, that it is enormously useful for me to speculate further on what might have been the reasons for the sabotage or the agencies involved. Once the committee, as I hope it will, begins to address the question of what was in the intelligence report that came down to Canberra and why that information was not passed to the Navy, I think truth will flow from that process. I think the implications of this tragedy are so enormous that it is important that that be done. Senator FAULKNER-I think these events are, as you say, extraordinarily tragic events. I am exploring the issue of probable sabotage because I think it is of interest to the committee. I think you just have to accept that perhaps the perspective on this side of the table as to the priority of issues is sometimes different from that of the witnesses. That is often the case here. I am concerned to hear what you have said about sabotage and that is why I am exploring it. But if there are any other concerns that you have or light you can throw onto this, I would appreciate your doing so. If there is no other information you have available to you that you can share with the committee, I am happy to move on to other issues. Mr Kevin-Senator, there is something I would like to say that might be relevant to what you have just said. Without making any allegations or accusations, I want to say that the context and the timing of this sinking were enormously useful for the Australian border protection operation. Consider the chronology: until this time, there had been a number of SIEVs come down, six in all. Arunta intercepted SIEV6 on the 19th. In all of those cases, prior to this event which took place on 19 October, the strategy of repelling asylum seeker boats had not succeeded. Asylum seeker boats basically were not prepared to turn around and sail back to Indonesia. We were faced, as has been set out by official witnesses, with safety of life at sea situations in which, usually, the only way to deal with them was to take the people on board and transfer them to Manoora or Tobruk. After this time, it became possible to escort or tow boats back to Indonesia-something that had not been politically possible before 19 October. Clearly, there had been considerable Indonesian resistance to that at the political level, especially at the level of the parliament, but CERTAIN MARITIME INCIDENT CMI 1332 SENATE-Select Wednesday, 1 May 2002 this terrible tragedy perhaps made it easier to enable the government to simply lock the people in the hold and, without telling the people where they were going, tow them back to Indonesia. So it made the operation of Operation Relex a lot easier. It also allowed the Australian diplomatic initiative of a joint conference with Indonesia on people smuggling to be launched. It was under the shock of this incident that the Indonesian foreign minister announced two days later that he would host with Australia a people smuggling conference. Finally, of course, the tragedy sent an enormously powerful signal of deterrence to both the people smugglers and the paying passengers-that travelling to Australia on these boats was no longer safe. It is interesting that only a few weeks beforehand Mr Downer was saying that trav- elling on these boats to Christmas Island or Ashmore Reef was pretty hazard free. The hazards may have begun, of course, after the interception by the Australian Navy, but until that point they were hazard free, yet after this they were clearly no longer hazard free. The government has recently been congratulating itself on how successful it has been in halting the flow of people smuggling, and it mentions a number of reasons for that, but I would suggest perhaps the most important reason was this terrible tragedy, which really slowed things down. Of course, it took a week or so to take effect, but I think that tragedy continues to reverberate around the world. Senator FAULKNER-I want to be clear on this. You are not suggesting any direct or indirect Australian involvement, or possible Australian involvement, in what you describe as the probable sabotage, are you? Mr Kevin-I am not going to go beyond what I have said in my submissions on that. I have said that it is conceivable and I have said that the possibility has to be taken into account, but clearly one has to begin to get some hard evidence. Senator FAULKNER-But you do not have any hard evidence. Mr Kevin-The route into that sort of evidence, I believe, is finding out why this SIEV boat's embarkation for Australia was not normally handled in the Australian information and command system of Operation Relex. Once we know why that happened we will have a basis on which to investigate further these very serious matters. Senator FAULKNER-Yes, but you do not have any evidence of this, do you? You do not have any evidence of any possible Australian involvement. Mr Kevin-If I had that kind of evidence, I would be putting it in the hands of the police. Senator FAULKNER-Yes. So you do not have any, do you? Mr Kevin-No. Senator FAULKNER-That is what I was trying to get to. Mr Kevin-Yes. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1333 Senator FAULKNER-I am not suggesting that you would not act properly and do as you suggest-put it in the hands of the police-but I wanted to be clear that that is the situation. Mr Kevin-Yes. CHAIR-Wherever the site of the sinking is, it is in Indonesian territorial waters, isn't it? Mr Kevin-Not according to the Australian report of 24 October. CHAIR-Are you saying that site in the Indian Ocean is outside Indonesian territorial waters? Mr Kevin-That's right. If you go to map 2, you will see the site of the sinking. CHAIR-Yes. Mr Kevin-It is 80 kilometres from Panaitan Island, which is where I would guess that the boat overnighted, and it is probably about 50 kilometres from the nearest coast of Java-that is 30 miles in old language. The territorial sea extends 12 miles. It is of interest that Rear Admiral Smith said in his testimony that Australian Coastwatch and RAAF Orion surveillance aircraft operated to within 30 miles of the Indonesian coast. Where that boat sank-if the Greenlees report is right, which I believe it is-was both outside Indonesian territorial waters and within range of Australian air surveillance. Senator FERGUSON-How many people besides Greenlees suggest that that is the position where the boat sank? Mr Kevin-That is the only report. Senator FERGUSON-So there is just this one report? Mr Kevin-Yes. CHAIR-I must say that I am confused when I look at these maps, because I am unable to automatically convert kilometres into nautical miles- Mr Kevin-Nor am I. CHAIR-and I need to do that. The close-up map only has a legend in kilometres. Mr Kevin-Yes. CHAIR-Has there been any coronial process in Indonesia about the loss of this life? Mr Kevin-As far as I know, not. The only things that I know have happened are, firstly, a couple of policemen were arrested in Riau, which is up near Singapore, while trying to escape. Secondly, the people smuggler concerned was arrested and charged with documents fraud. That is all that has happened, as far as I know. CERTAIN MARITIME INCIDENT CMI 1334 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-In paragraph 2 of the summary of your submission of 4 March 2002, you submit that there is a circumstantial case to be investigated: did any Australian agency or agent act in such a way as to bring about or make more probable the sinking of this boat on 19 October? Since the development of that submission, have you been able to go any further in answering the question that you asked in the submission? Mr Kevin-Yes, I have, Senator. I have been able to rule out certain disturbing possibilities. I have been able, thanks to the evidence in this committee-and I am grateful for it-to rule out in my mind any possibility that an Australian naval boat may have been present at the scene of the sinking. I accept, without qualification and with relief, the information that the nearest Aus- tralian Navy vessel was 150 nautical miles away. But in ruling out one difficulty a new one pre- sents itself, because Senator Hill's letter to Mr Crean and testimony by Rear Admiral Smith- which are completely consistent with each other-make clear that something very odd happened to the information that should have been coming in to Operation Relex about this boat and that it would have required a safety of life at sea response. One has to ask: did that happen? If it did, why did it happen? Conspiracy or stuff-up? We say in Australia that `stuff-up' is usually the right explanation. But this one is more disturbing and I believe it will require on the part of the committee a vigorous examination of witnesses who can give the answers to these questions, which I cannot. Senator FAULKNER-Do you mean Coastwatch and AMSA? Mr Kevin-I would not want to teach the committee to suck eggs, but I think that obviously the players in this are both Coastwatch and Search and Rescue. Also, possibly it would require going to the Australian Federal Police and perhaps going back to some of the previous witnesses. Senator BRANDIS-Senator Faulkner, do you mind if I ask a question? Senator FAULKNER-Not at all. Senator BRANDIS-Mr Kevin, I want you to go back to the answer before last when you said it was a conspiracy or a stuff-up. It is not really a binary choice like that, may I suggest to you, because if it were either a conspiracy or a stuff-up it assumes that something untoward happened. The other possibility, which so far the state of the evidence appears to me to be the overwhelming possibility, is simply this: your conjecture is baseless. Mr Kevin-Sorry, what conjecture, Senator Brandis? Senator BRANDIS-The circumstances referred to in Senator Hill's letter. You have drawn an inference from that and said, `This is disturbing, it was either a conspiracy or a stuff-up.' But it is not a binary choice. It may be that your conjecture that something untoward happened is simply baseless, that nothing untoward happened. If you can direct us to some evidence to suggest something untoward did happen, then we will listen carefully. Mr Kevin-I would be happy to, Senator. When we look at the whole issue of why this vessel was handled differently to the other 12 SIEVs, we have testimony from Rear Admiral Smith on 4 April-CMI Hansard, page 461-where he says: CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1335 ... the first time that the Navy knew that this vessel had sailed was when we were advised through the search and rescue organisation in Canberra that this vessel may have foundered in the vicinity of Sunda Strait. On the next day, 5 April-Hansard, page 488-he goes on to say: At no time under the auspices of Operation Relex were we aware of the sailing of that vessel until we were told that it had in fact foundered. This is the same Rear Admiral Smith who has told us-and I have no reason to doubt his testimony-that, in almost every case of these SIEVs coming down, we knew they were coming and that information was based on intelligence material. Operation Relex knew that and was therefore ready to prepare air surveillance and the Navy to intercept. So I do not think it is conjecture, with respect, to say that there is something very odd here. Senator BRANDIS-Why, because in 12 instances we knew of SIEV vessels through surveillance- Mr Kevin-Eleven out of 12. Senator BRANDIS-And on this occasion we were unaware of it, at least at the same early time in its progress that we became aware of other SIEV vessels. Is that your point? Mr Kevin-My point is that in the normal system these vessels were obviously tracked early so that the Navy could be positioned to intercept them at the right place. If I could go back to some of the things that were said by Admiral Smith on that, he said- Senator BRANDIS-Before you go on to that, on map 3 of the document you have produced, where you identify the point of sinking, that is nowhere near Australian territorial waters. Mr Kevin-I have not suggested it was. I have, however, suggested that that was well within the area at which Australia was conducting forward air surveillance of boats that were known to be coming down to Australia. Senator FAULKNER-What you are saying is that there is an intelligence report or reports, as happened so often, including on-the-ground reporting, it appears, in Indonesia as well as air surveillance and whatever other intelligence sources are available to Australian government agencies in relation to SIEV vessels. There is also intelligence reporting in relation to this vessel, the vessel that sinks on 19 October. That is right, is it not? Mr Kevin-Yes. Senator FAULKNER-Coastwatch has that, does it not? Mr Kevin-Yes. Senator FAULKNER-We know that Coastwatch has it, trying to work through this now, because Senator Hill sends Mr Crean a letter and paragraph 1 on page 2 of that letter describes the process. CERTAIN MARITIME INCIDENT CMI 1336 SENATE-Select Wednesday, 1 May 2002 Mr Kevin-Yes. Senator FAULKNER-It says `Consultation with the Rescue Coordination Centre (RCC) Australia', which I described broadly as AMSA a few moments ago. I probably should have said the Rescue Coordination Centre, which I think is an agency of AMSA, is it not? Mr Kevin-Yes, I believe so. Senator FAULKNER-It says: Consultation with the Rescue Coordination Centre (RCC) Australia has indicated that Coastwatch Australia advised the RCC that a vessel had departed the Sunda Strait on or about 18/19 October 2001 bound for Christmas Island, and that the vessel was overdue. So we know that that advice goes from Coastwatch to RCC. That is right, is it not? Mr Kevin-Yes. Senator FAULKNER-Do you have any view as to when that advice might go from Coastwatch to RCC? Mr Kevin-There is no public information on that. Senator FAULKNER-This is why I said earlier we can ask Coastwatch when they come before us and we have AMSA a little later in the day and obviously we can ask them that question and no doubt our witness will be able to answer it. You are saying, are you not, that at least in relation to the sort of normal intelligence reporting there is information that this vessel is leaving Indonesia. Is that your point? Mr Kevin-Yes. Senator FAULKNER-And after that somehow, but you do not know how, it is possible that the normal processes in terms of the information flow to other Australian government agencies do not apply. Am I understanding you correctly? Is that not what you are saying? Mr Kevin-That is right. And there is evidence to that effect in this committee. Senator FAULKNER-That draws you to say to this committee-I am just following through what Senator Brandis has I think usefully asked you-that there is a possibility here that this is either a conspiracy or a stuff-up. That is what you said, isn't it? Mr Kevin-Yes. Senator FAULKNER-And Senator Brandis puts to you that it may be neither. Mr Kevin-Or perhaps, as Senator Brandis puts it to me, it may be somewhere along the spectrum between conspiracy and stuff-up. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1337 Senator BRANDIS-No, that is not at all what I said to you, Mr Kevin. I said it may have nothing to do with conspiracy or stuff-up, both of which imply that there was something untoward. It may be the very opposite of that-that is, that there was nothing untoward and what you are saying is merely baseless conjecture unsupported by any empirical fact to which you can point. Mr Kevin-Your colleague Senator Faulkner has just helped me clarify it in my own mind. I just find it very strange-why doesn't information that Coastwatch has about a suspected illegal entry vessel coming down to Australia go to the other parts of the border protection interception system? Senator FAULKNER-We do not know that. Let us try to deal with this logically. I made the point to you a moment ago. You say that it is a conspiracy or a stuff-up. Senator Brandis put to you that it is neither a conspiracy nor a stuff-up-it might be something else. You do not accept that. You are satisfied that it is either a conspiracy or a stuff-up or somewhere on the continuum between a conspiracy and a stuff-up. That is what you are saying, is it? Mr Kevin-Yes. Clearly something went very wrong. Senator FAULKNER-Would you still say that if this committee received evidence that Coastwatch perhaps did not receive these intelligence reports as early as it might have in the case of the other SIEVs, for example? Mr Kevin-I think that would simply take the burden of question back one stage in the system to the intelligence agency that provided the report. What has come through in the general testimony in this committee is the importance of accurate and timely reports coming down on these boats so that the Navy has time to send its air surveillance out to survey the windows in which the boats are expected to appear and then to position the boats to intercept them. We are dealing with very limited assets here-only a few boats and a few aircraft. The intelligence, if it is late, is not terribly useful. Senator FAULKNER-I appreciate that. I want to be clear on this and I am going to try and choose my words advisedly. I think you are saying to us that your thesis is that, given the intensity of this issue in terms of its prominence, government policy, the sensitive time and the priority that Operation Relex has, with the resources applied to Relex it is not likely that any of these vessels would not have been closely tracked. Is that what you are saying to us? Mr Kevin-Yes. Senator FAULKNER-Without going into all the detail of it, you are making that assumption? Mr Kevin-It is not really an assumption. It is based on my careful reading of evidence in this committee by expert witnesses. Senator FAULKNER-I think it is fairly described as an assumption at this point because we do not have any evidence to either support it or not support it. I am not dismissing what you are saying to the committee at all-I am, as always, open-minded about these sorts of things. CERTAIN MARITIME INCIDENT CMI 1338 SENATE-Select Wednesday, 1 May 2002 But I think it is fair to say that that is a conclusion you draw. You may draw that on the basis of the experience with the other SIEVs-which I think is also true, isn't it? Mr Kevin-Yes. To make this a little more concrete, could I just read out some of the things that Rear Admiral Smith actually said in this committee to remind senators that, even if I am making an assumption, it is an assumption based on good empirical knowledge that has emerged in this committee? Rear Admiral Smith said, on page 454 of Hansard, that intelligence sits behind all monitoring and interception activities. He said that he was not `able to share that information at this time'. He went on to say: On the basis of some of that information, we were able to make some assessments on windows when these vessels might appear. We then were able to adjust our patrols and so forth to make intercepts. He says that they did not know every time these things were going to happen-`We planned on not knowing.' He said that their surveillance operation involved ships, RAAF P3 Orions and Coastwatch aircraft. He says: We had a patrol arrangement in place, and we were relying upon a whole series of activities to give us the information that we needed ... We certainly had some information that boats might be being prepared in different parts of the archipelago. He says that, apart from one SIEV-and that was the early one, SIEV2-`we pretty much knew where things were going'. I think all of that is fairly conclusive information that the Navy normally had a good idea of what was coming and when it was coming. Senator BRANDIS-How is the piece of evidence that you just read from Admiral Smith- let me quote it back to you, `We did not know every time these things were going to happen,'- conclusive of the opposite proposition, which you have just articulated? Mr Kevin-Simply because we did know something, because Coastwatch had a report that a boat was coming and the boat failed to arrive, and then Coastwatch asked Search and Rescue to put out an overdue notice. Senator BRANDIS-Hang on a second. You just said, `I can show you some evidence from Smith that supports my proposition.' That evidence included his statement, `We did not know every time these things were going to happen.' How does that support your proposition? Mr Kevin-There are two different propositions here: one is the proposition that we knew pretty much about all the boats that we intercepted, so- Senator BRANDIS-Even the qualifying words `pretty much' suggest that that was not universally true. Mr Kevin-He said actually, `Apart from one SIEV, we pretty much knew where things were going.' Those were his words. Senator BRANDIS-`Pretty much'? Mr Kevin-Yes. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1339 Senator BRANDIS-So he qualifies himself. He says, `We generally knew, pretty much knew.' But he does not say, `It was universally true that we knew.' Then he says, `We did not know every time.' How does that support what you are saying? It says the opposite, Mr Kevin. Mr Kevin-I do not think so, Senator, with respect. It simply says that we knew about 11 of 12 boats that came, in advance, and, in this particular case, we knew about the thirteenth boat- let us call it SIEV13, an unlucky number-because Coastwatch knew it was coming. Senator MASON-But even then, Mr Kevin, `in advance' means different things in different contexts-it is when they left port in Indonesia or sometime subsequent to that. `In advance' means different things with respect to different SIEVs. Mr Kevin-That is an important question- Senator MASON-You would agree with that, wouldn't you? Mr Kevin-I am glad you asked that question. I would be happy to reply to it. In the case of SIEV13, the Coastwatch must have known when it left in order to be able to know when it was due to arrive. Senator MASON-In relation to that, yes. But what I am saying is in relation to all the SIEVs. The time of departure from Indonesia was not known in every case. That is all I am saying. When you say it was known `in advance' that means different things in relation to different SIEVs. Do you agree? Mr Kevin-Possibly. Senator FAULKNER-As I said before, we can ask other agencies-in this case particularly Coastwatch and the RCC as a starting point-and there may be other agencies involved, as you say. The starting point may well be the others providing intelligence reports to Coastwatch and the like. I understand all that. But at issue here in the first instance is when the process starts from Coastwatch to AMSA and beyond. Mr Kevin-I would not necessarily confine it to Coastwatch and AMSA because- Senator FAULKNER-I am not, but we have substantive information now from Senator Hill, in black and white-you accept what Senator Hill said to Mr Crean, don't you? Or do you? You do not have to. Mr Kevin-It is an interesting question. Senator FAULKNER-Do you accept the veracity of what Senator Hill said to Mr Crean on that matter? Mr Kevin-I have a problem with the statement that it has been assessed that the vessels were in the vicinity of Sunda Strait. That is a very important point. CERTAIN MARITIME INCIDENT CMI 1340 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-You have a problem with that. Is there anything else you have a problem with? Mr Kevin-I must say I have not been reading the letter in that light. I was more reading it as a source of reliable information. Senator FAULKNER-Do you, for example, dispute the advice that the closest naval vessel was 150 nautical miles away? Mr Kevin-No, I do not. Senator FAULKNER-You accept that? Mr Kevin-I do. In fact, I have used that information to try and verify my analysis that the boat was not in the Sunda Strait. In fact, it could not possibly have been in the Sunda Strait if it was 150 nautical miles away from Arunta. Senator FAULKNER-So you also accept what Admiral Smith has said in relation to the inability or incapacity of any Australian naval vessel to assist in this circumstance? Mr Kevin-I would not put it that way. There is an important qualification: had the Navy known, Arunta could have had a helicopter there in half an hour and Arunta itself could have been there in four or five hours steaming time. Senator FAULKNER-Yes. I read that in your opening statement. Let me ask the question another way: do you accept the Navy did not know? Mr Kevin-I accept that Operation Relex and the Navy did not know in their official capacities, yes. Senator FAULKNER-You think they might have known in an unofficial capacity? Mr Kevin-Senator- Senator FAULKNER-You qualify, which is fine-we all do. I am in politics; I have even qualified the odd answer from time to time-I admit it. That is a very qualified answer. Why do you make the qualification? Mr Kevin-I think there is a great need for clarity in all of this and both Jane Halton, who said that the task force was not aware of the vessel that sank, and Rear Admiral Smith, who said: At no time under the auspices of Operation Relex were we aware of the sailing of that vessel until we were told that it had in fact foundered. might welcome an opportunity to also say that they did not have any corridor knowledge of these matters. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1341 Senator BRANDIS-But you have no evidence of that, either. You bring to this committee no evidence that the Navy knew of this, either officially or unofficially, do you? Mr Kevin-I have evidence which has come from this committee that the Navy did not have official knowledge of this. Senator BRANDIS-And you have no evidence that the Navy had-to use your expression-unofficial knowledge either, do you? Mr Kevin-No. Senator FAULKNER-What I am exploring is whether you do have any or why you qualify your answer in the way you do. It is because Admiral Smith, in your view, has given a qualified answer to this committee in that he talks about the Navy under the auspices of Operation Relex. That is why you qualify your answer to me. Is that right? Mr Kevin-I found that qualification interesting. I am conscious of the fact that Coastwatch is part of Operation Relex, and so I am a little curious as to how Coastwatch had the information and other parts of the system did not. That is strange. Senator FAULKNER-If I could try and sum this up: you are concerned about when Australian authorities first knew about this vessel leaving Indonesia. That is right, isn't it? Mr Kevin-I am concerned that if information about this vessel included information about its unseaworthy state that information should have been handled in the normal way to enable a safety of life at sea response. I am concerned about that. Senator FAULKNER-Beyond the matters you have canvassed in answer to questions asked so far this morning by committee members and in your opening statement, is there any other matter or evidentiary support that you have or that you can provide to this committee today that you believe it would be appropriate for this committee to explore? I accept that this is a serious issue. I am sure that is a view shared by every member of this committee. I would certainly hope it would be. The number of people that drowned on this vessel is horrific and I accept your very deep concern about it. But if there is any other matter or piece of evidence that you have that you have not outlined to us and that you can draw to our attention, it would be appropriate for you to place it on the record. Mr Kevin-There is. It is the issue of why I believe it is reasonable to conclude that the boat was 80 kilometres south of its last landfall when it sank and not in the Sunda Strait. This is not- Senator FAULKNER-Let us deal with that in a moment. Is that the only- CHAIR-I wonder if this might not be a bad time to break for lunch and come back at 2.18 p.m. Can I divine from the questions that Senator Faulkner is wanting to try to get the thing wrapped up again? That might give you a chance to order your thoughts as well, Mr Kevin. Mr Kevin-Thank you. CERTAIN MARITIME INCIDENT CMI 1342 SENATE-Select Wednesday, 1 May 2002 Proceedings suspended from 12.30 p.m. to 2.18 p.m. Senator FAULKNER-I asked Mr Kevin prior to the luncheon break whether there were any other outstanding matters that he had not presented to the committee in either a submission or an answer to questions that he felt might be beneficial to us. I think he was about to respond to that when we went to lunch, so we should give him that opportunity. Mr Kevin-The main matter on which I wish to speak at some stage is the issue of the location of the sinking, but before I get to that I would like to say a couple of things. Firstly, I would like to give Senator Brandis the information about where the 19-metre boat reference came from. It came from an article by Don Greenlees in the Australian on 24 October, `Forced on to death boat', and it contained the sentence: `Authorities say the 19m vessel could safely carry fewer than 100'. I would also, in the same context, like to say something about the importance of the reporting of Don Greenlees in this affair. I think there was a reference by Senator Ferguson at one point that I was relying on one newspaper report. Don Greenlees has just won a Walkley Award: he is the winner of the 2001 Walkley for the best Asia-Pacific coverage, largely arising from his series of articles on people-smuggling and on this event. The judges were impressed by the detail of names, faces and connections revealed in a difficult operating environment. I have read all of Greenlees's articles on people-smuggling; they are remarkably detailed and remarkably well informed. I admire them for that. What I am about to say is not in any sense intended to reflect adversely on Don Greenlees. As a former ambassador in Cambodia, which in some ways is a similar environment to Indo- nesia, I know that this sort of detailed, intensive journalism reflects fairly intensive contact with Australian official sources. I am confident that, first of all, all this detail that Greenlees has is pretty accurate on the events surrounding the embarkation of this boat. Secondly, it is a reason- able supposition, not conjecture, that Australian Federal Police up in Indonesia would have had access to the same kind of detailed information. I think that is a reasonable deduction from the available information. Senator BRANDIS-Like a lot of the things you have said to us, you still do not know. This is inference and conjecture. In fairness to you, some of the inferences are more readily drawn than others. Nevertheless, you still cannot point to any evidence to support the propositions you have been advancing. Mr Kevin-Senator, we are not in a court of law. I am not tendering evidence. Senator BRANDIS-This is a fact-finding inquiry, and a conclusion as to whether or not a fact exists must be based on evidence. Mr Kevin-Senator, you mention inference and conjecture. I think there is a great deal of difference between the meanings of those two words. I am prepared to accept that what I have said this morning is inference, but it is inference from known facts. To me, there is a big difference, with respect, between that and conjecture. It is a known fact that this boat sank, that 353 people drowned. It is a known fact that Coastwatch Australia had information on the boat's departure and was expecting it to arrive on or about Monday, 22 October. It is a known fact that Operation Relex and Jane Halton's People Smuggling Task Force did not have that information. Those are important discrepancies in the Australia information and command chain. I do not CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1343 feel comfortable with the description of them as conjecture. They are certainly inference, but they are not conjecture. At this point perhaps I could say something about the location of the sinking because it is quite important, not in terms of search and rescue obligation, because Rear Admiral Smith said that the Navy would have gone to the rescue, even into Indonesian territorial waters, but obviously in terms of the politics of the whole thing it is fairly important to establish where the boat sank. I have circulated a set of three maps. Map 1 is the only map that I have seen plotting the presumed location of the sinking, and it appeared in the Australian on 24 October. As you see, it is well out to sea, out into the Indian Ocean south of the western tip of Java. In Greenlees's article of that same date we have a statement that: About 80km from land at 2pm on Friday- that is the 19th- the fishing vessel began to take heavy water, listed violently to the side, capsized and sank within an hour. I have done the exercise of creating these two news maps, map 2 and map 3. I should perhaps say that, although I am not a navigator, I do have a degree in civil engineering and I do know how to read maps, measure and make basic calculations. I worked backwards from the known facts of Arunta's interception of SIEV6. We do know quite a bit about that from the information provided by Rear Admiral Smith. I will read from the event summary for SIEV6: ARUNTA intercepted the SIEV at approximately 190109Z Oct (0809 local) north of CI. That is, Christmas Island. Later on it says: SIEV 06 entered the ASCZ- Australian contiguous zone- and was boarded by ARUNTA at approximately 191045Z (1745 local) without incident. That means that Arunta was shadowing SIEV6 for approximately 9½ hours, travelling south towards Christmas Island, and intercepted it at the 24-mile edge of the contiguous zone. That is 20 nautical miles north of Christmas Island. I am making a judgment that SIEV6 was travelling at five knots. That seems to be the average speed at which these fishing boats are quoted as travelling, and the sort of travel times we have seen in the reporting of them coming down to Christmas Island indicates that is, give or take a knot or two, about right. Applying that speed of five kilometres an hour to that time of 9½ hours, we get a position that Arunta first encountered the SIEV four to five nautical miles north of the contiguous zone where it finally intercepted it. That puts the point of first encounter at 65 nautical miles north of Christmas Island. I have plotted that point on map 2 with the reference `Presumed position of HMAS Arunta'. I have then measured 150 nautical miles north of that, back towards the Sunda Strait, based on the evidence of Rear Admiral Smith and also Senator Hill's letter that Arunta was at no time closer than 150 nautical miles from the sunken vessel. Where I have marked the cross is the position of the sunken vessel. I have marked its sinking site. Reassuringly, from the CERTAIN MARITIME INCIDENT CMI 1344 SENATE-Select Wednesday, 1 May 2002 point of view of my thesis that the boat did sink at that point, that point is precisely the same point as is shown on the small Australian map on 24 October. It also fits with the Greenlees account of the voyage because Greenlees has the boat leaving from Bandar Lampung in the early hours of Thursday morning, travelling through the day, overnighting at an island and the next morning, Friday, going on and sinking about six hours later. If you look at map 3-I have not plotted the course here-you can see that the distance from Bandar Lampung, which is up in the top left-hand corner of the map, down to Panaitan Island is about 120 kilometres, which is the sort of distance that one of these boats would cover in a day. Also, the distance from Panaitan Island down to the sinking site that I have marked is about the same sort of distance the boat would cover in half a day, that is, until it sank on the Friday. So that fits also. We have this position triangulated both from the information we know about how far Arunta was from it and also from the information we know about the voyage- they both lead to the same conclusion as to where it was. The alternative hypothesis that it sunk in Sunda Strait breaks down for several reasons. Firstly, it means that HMAS Arunta would have had to have been about 70 nautical miles further north at the point at which it intercepted SIEV6 for it to have been still 150 nautical miles from the sunken boat. When we do that, we find then that when Arunta was accompanying SIEV6 down to the edge of the contiguous zone, Arunta and SIEV6 would have had to have been travelling at about 12 knots for 9½ hours. These SIEV boats, particularly ones with the load factors that they were carrying, would not have travelled comfortably or safely for 9½ hours at 12 knots. This particular SIEV boat was carrying 227 people. It would not have gone for 9½ hours at 12 knots, so that does not seem to hold water. There is also the point that there is a lot of shipping in the Sunda Strait. It is a very busy area, and it is rather difficult to conceive that a wreck of this kind would have taken place in Sunda Strait and that the survivors would not have been found for 22 hours. There is also the fisher- man's report that they had gone out well beyond their normal fishing grounds, and this also suggests a location well beyond the Sunda Strait. The survivor's journey back to Jakarta took two to 2½ days to cover a measured distance of some 300 kilometres. If you look at my projected route back on map 3, that is a distance of about 300 kilometres and it took them 2½ days travelling, once again, at about five knots. If you go for the hypothesis of a sinking in the Sunda Strait, you are dealing with a much shorter distance and you must ask yourself: why would it take 2½ days to cover 150 kilometres? For all those reasons, the deduction that the Greenlees' position of sinking is correct seems to be reasonable on the known facts. That is why I made the statement in my opening statement that I would stick to that position as the site of the sinking. Again, the important thing about that position-and it is very important-is that, firstly, it is outside Indonesian territorial waters and, secondly, it is within the normal operating range of Australian air surveillance, had Australian air surveillance known that there was a boat coming from that general direction at that time. Senator FAULKNER-Are you aware of any photographs of the vessel that sank? There are some P3 Orion photographs, aren't there, of the vessel? Mr Kevin-I have heard a bit of gossip that there may have been P3 Orion photographs, but I have never pursued it and I do not know any more than that. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1345 Senator FAULKNER-It is only gossip, as far as you know? Mr Kevin-That is all that I have heard at this stage. I am hoping that one result of my testimony in this committee will be that others who know a lot more than I do may be encouraged to come forward and offer information about this very serious tragedy that happened to an asylum seeker boat that was on its way to our country. Senator FAULKNER-How did you become involved or develop an interest in this particular incident? As I said before, it is a horrific tragedy and it is understandable that anyone would take a close interest in it, but you have taken a particularly close interest in it. I just wonder why you have put so much effort into it. Do not read into that that I am critical in any way, because I am not. I am pleased that an Australian citizen would take such a close interest in something like this. How did it develop? Mr Kevin-First of all, like all senators, I was shocked and appalled by the whole thing. I am sure you all remember these terrible pages of the Australian. They are indelibly cast in my memory. Even at the time, I felt this was just too enormous and too horrible to contemplate- how could such a dreadful thing have happened. Then there was an article by Vanessa Walker in the Australian on 21 December about one of the survivors being granted a temporary protection visa in Australia. I was going through my clippings towards the end of January, and I noticed a couple of paragraphs at the end that said that a survivor's account suggested that he had seen large boats with searchlights and was told later by fishermen that these were Australian. The next paragraph said that a Department of Defence spokesman said that the nearest Australian boat was 230 nautical miles away. I was interested in that. At that time I did not know anything about it. I rang Vanessa Walker and asked, `Where does this come from?' She gave me the name and contact details for Mr Keysar Trad, who is an Australian of Lebanese origin, who had translated into English the full set of videotaped survivor accounts that were taken at the UN hostel in Bogor on the first day after the people were brought back to Bogor, on 23 October. He emailed me those survivor accounts. I read them all and I was appalled, distressed and horrified. I started to re-read the Greenlees reports from 24 and 25 October in the context of those detailed survivor testimonies, I suppose you could call them. More and more I became convinced that this horrible event could not have been an accident; there were just too many strange coincidences piled upon coincidences. It went from there. I have to say that this has been a long process of circling closer to the truth. It has been done by the scientific method of eliminating things that are clearly not true and, as one eliminates things that are clearly not true, hopefully, in the end, one gets to what may be true. In the process of that work I spoke to a couple of Australian journalists based in Jakarta-Ginny Stein, now with Dateline, and Lindsay Murdoch, from the Age Fairfax group. I also spoke with personnel from the International Organisation of Migration and the UN High Commissioner for Refugees. I spoke with a couple of Indonesian speakers I know in Canberra to ask them how this event had been covered in the Indonesian press. And, perhaps most importantly of all, I started reading very carefully the Hansard of this committee. I was obviously looking at it from a particular point of view, which was to see what light might be shed on, first of all, the general intelligence and aerial surveillance and interception procedures that came out of the committee's work. Also, I was looking at the way witnesses responded to CERTAIN MARITIME INCIDENT CMI 1346 SENATE-Select Wednesday, 1 May 2002 specific questions regarding this boat. There has been, I think, a very useful process of getting closer to the truth. That is really all I can say. Senator FAULKNER-Thank you very much. CHAIR-I am trying to recreate your position and I would like you to comment on the following. In your submission, under the heading `The sinking on 19 October', in the second paragraph down you say: In rough seas, it put into an island in the Sunda Strait on Thursday night. 24 passengers refused to continue and disembarked. The remaining 397 people decided to continue the journey to Christmas Island early on Friday 19 October. Do you have any idea what island in the Sunda Strait that was? Mr Kevin-I believe that, on the basis that they had sailed all day-and it would probably be better to look at the larger scaled map 3 at this point-it would be that rather big one down near the corner of Java, which is called, Panaitan Island. CHAIR-What I am trying to come to grips with is that, according to the reports, these people were forced onto the boat, using smaller rowing boats or whatever, at gunpoint, if they put ashore at Panaitan Island. What forced them to continue? The boat clearly was not seaworthy and a number of people had left. Was there any suggestion of compulsion to force the others to continue? Mr Kevin-That is a very good question. I can only suggest a number of possible reasons. First of all, these people had a huge and urgent desire to get to Australia. Many of them had relatives here and so on. Second, they had made it through one day sailing to Panaitan-if this is correct-and, most of them being very deeply religious, they may have thought God would help them through the rest of the journey. If they had got this far perhaps they could keep going. It is strange, isn't it, that they did get through that whole first day without sinking? CHAIR-The point I am coming to is that if they were forced onto the boat, when they came ashore and disembarked at Panaitan Island-if they were not forced to continue at that point- presumably more of them would have left the boat, I do not know. Mr Kevin-I think that by that stage most of them might have decided in a fatalistic sort of way, `We have got this far, let's hope we get the rest of the way.' I think those who wanted to leave the boat at Panaitan were able to do so, judging by the accounts. Can I also say-this might be important for future investigations-that the people who left the boat at Panaitan are actually still in the UN hostel at Bogor. Unlike the survivors of the sinking proper, they have not been sent to various resettlement countries. I think that all of the original group of 44 survivors have now been resettled around the world. I think three or four came to Australia and the rest went to other countries. But the 24 people who got off at Panaitan Island are still in the UN hostel at Bogor. They would be a very valuable source of information if this were to be pursued seriously further. Senator FAULKNER-What about the 10 who refused to embark at Bandar Lampung? Mr Kevin-I have heard no more about them. All I know about them is what is in the- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1347 Senator FAULKNER-I am not doubting for a moment that people are basically forced onto the boat at gunpoint. Why are these people able to avoid embarkation, do we know? Mr Kevin-Because they paid $400 in bribes to get off-and money will take you a long way. Senator FAULKNER-How do we know that? Mr Kevin-That is in the Greenlees report. CHAIR-This boat, when it departed Panaitan Island-if that was the land fall-was motoring at about three nautical miles an hour or about five kilometres an hour. Is that correct? Mr Kevin-I am working on five knots, which is five nautical miles an hour. CHAIR-Five knots? Mr Kevin-A knot is one nautical mile per hour. CHAIR-I know that, but I am just trying to make the conversion to kilometres because these things are in kilometres as well. Mr Kevin-It is difficult. CHAIR-You say they were about 80 kilometres from land at 2 p.m. on Friday, and I am just trying to make the conversion to what time they would have departed Panaitan Island to be in that region. Mr Kevin-Eighty kilometres is about 50 nautical miles, give or take. CHAIR-No, it is not. A nautical mile is longer than a land mile. Senator FERGUSON-Yes, which means there will be fewer of them. CHAIR-Which means there will be fewer of them-that is right. Senator FERGUSON-There will be 45 instead of 50. CHAIR-So 45 is probably about right. I will go and work on those sums. Senator FERGUSON-The only thing I was ever good at was maths. Mr Kevin-So say 45 and five knots-that makes nine hours travelling. They left very early in the morning on the Friday morning, according to the account. They sank at about two o'clock in the afternoon, so that would fit reasonably well. CHAIR-So they must have left at 5 a.m. or some such time? CERTAIN MARITIME INCIDENT CMI 1348 SENATE-Select Wednesday, 1 May 2002 Mr Kevin-Yes, about six o'clock. Senator FAULKNER-It is an educated guess. Mr Kevin-Yes. CHAIR-I am just trying to put the thing together, that is all. Senator MASON-As Senator Faulkner and our chair, Senator Cook, have said, you raise a very important issue. It is one that certainly should be examined. As you say, the loss of hundreds of lives is certainly tragic and, indeed, horrific. So thank you for your submissions. Committee members have got a letter, I think, dated 18 February from you to various parliamentarians, submission No. 2 to the committee dated 4 March, a letter from Senator Hill to Mr Crean dated 26 March, submission No. 2A dated 11 April and, of course, your opening statement here today and your examination today. You speak about the development of your thesis. What I want to quickly put to you this afternoon is that your explanation to account for the tragic events of 19 October last year has shifted and seems to continue to shift. I would draw you to your first letter. I think it is fair to say that, in your first letter, which is dated 18 February, you argued that there were allegations that two Australian naval ships visited the site of the sinking of the Indonesian vessel and shone their lights-they were the allegations put-and then departed. I examined the Chief of the Navy, Vice Admiral Shackleton, and he, I am sure you would agree, denied it emphatically. Then I think Senator Bartlett examined Rear Admiral Smith, and Rear Admiral Smith denied it emphatically. I think Senator Cook also asked questions of Rear Admiral Smith on that point, and again it was denied. So would you say that you no longer give any order at all to the first hypothesis that naval ships attended the site of the sinking of the vessel? Mr Kevin-I do not want to quibble about words, but in that first letter of 18 February- which was a request that the Senate urgently examine a survivor's account that Australian naval patrols witnessed the sinking refugee vessel-I was not advancing a hypothesis; I was simply saying, `There is this survivor account on the public record. It is a very serious matter. I am hoping that it will be considered in the context of the Senate select committee.' I think to call it a hypothesis overdignifies it. I made it very clear in my testimony today that, from the testimony that has been given and the letter from Senator Hill, I am completely satisfied that there was no Australian Navy boat at the scene. Senator MASON-All right, let us move on from that then. Let us leave that behind us, if that is all right. I would now like to go to your submission No. 2 to this committee dated 4 March. You touched on this in your opening statement. Following the denials of Vice-Admiral Shackleton and Rear Admiral Smith, I think the argument you particularly developed in submission 2 was that the Australian intelligence authorities-it is a loose description, but let us leave it at that-knew of the departure of the Indonesian vessel and potentially even knew of the sinking of the Indonesian vessel but either (1) passed it on and it was not acted upon or (2) deliberately did not pass it on. Are you with me, Mr Kevin? Mr Kevin-Yes, I am with you. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1349 Senator MASON-I just want to get this correct in my own mind. Which part of that do you now say is correct? Are you saying that Australian intelligence authorities either passed the information on and it was not acted on or that they did not pass the information on? Mr Kevin-I am sorry; could I have that question again? Senator MASON-Sure. I am just trying to cut straight to the chase. In submission 2, I think it is your argument that Australian intelligence authorities knew of the departure of the vessel from Indonesia-it is just unclear from your submission-and also knew of its sinking but ei- ther (1) passed that information on to perhaps the armed forces and it was not acted upon or (2) deliberately did not pass that information on. Mr Kevin-I would say-and I am looking at the last page of that submission-that I was asking a series of questions which I requested the select committee to examine. I cannot really simplify that into the either/or proposition you just put to me. Senator MASON-That is fine. Mr Kevin-I think my concerns were fully expressed on page 15 of that submission when I asked a series of questions and I asked the select committee to try to seek answers to them from expert witnesses. Senator MASON-That is fine. You do not need to be any more particular. Can we call that second part of the development of this argument a crime of omission-in other words, intelligence knew about something but they failed to pass it on and certainly no Australian authority has acted on the basis of that intelligence? Is that a crime of omission? Is that a fair description of what you are arguing? Mr Kevin-At the time I wrote that submission I did not conceive of the possibility that an intelligence report that this boat was coming might have been sent to Canberra and that Canberra then mishandled that information. That submission was really written more on the basis of: what happened to the intelligence report? Yes, I had deduced that there was an intelligence report, on the basis of what I have already said about the Greenlees very detailed reporting, which I assumed was also known to Australian intelligence sources. At that time I did not conceive of the possibility that reporting might have come down to Canberra and then been derailed or shunted into a siding in Canberra, as I said this morning. Senator MASON-That is another part of the potential conspiracy. The third part I understand-and Senator Faulkner touched on this before-was that people were, for want of a better word, loaded on to the boat in Indonesia and then, to use your word from the opening statement today, there was sabotage. That is another aspect of the potential conspiracy. Is that right? Mr Kevin-Once again, I am simply looking at the known public record and saying that for a boat to leave in this condition and sink is not normal. Senator MASON-Mr Kevin, I accept that, but what I am trying to do is to deconstruct the conspiracy and all facets of it. Do you understand? First of all, we had the naval ships turning CERTAIN MARITIME INCIDENT CMI 1350 SENATE-Select Wednesday, 1 May 2002 up at the site of the sunk vessel. No-one says that is the case. Okay, we have finished with that- Mr Kevin-We are happy that that has been proved. Senator MASON-Secondly, there are intelligence reports that are either not passed on or not acted upon; and, thirdly and finally, we have an overloading, in a sense, of a boat and then, potentially, sabotage. And they are all parts of this conspiracy. Mr Kevin-On your second point, we know now from committee testimony that the intelligence reports were passed on. Senator MASON-That is fine. Mr Kevin-That is no longer part of my `hypothesis', if you like. I know that at some point intelligence reporting came down to Canberra. Senator MASON-Sure, but it does not establish a conspiracy, does it? Mr Kevin-I am not trying to establish a conspiracy; I am trying to establish the facts. Senator FERGUSON-What do you mean by the `known public record'? Mr Kevin-The authoritative journalism of the man who has just won a Walkley prize for best- Senator FERGUSON-Authoritative journalism-you keep talking about a Greenlees report. What you are talking about is a Greenlees article in a newspaper; it is not a Greenlees report. When you talk about a report, you are talking about the sort of thing that we are going to deliver at the end of this. But you are talking about the Greenlees newspaper article, which you place all the weight of your theory on, don't you? Mr Kevin-No, I place most of the weight of what I have said today on the public record of this committee. Senator FERGUSON-But you have also talked about the Greenlees report- Senator BRANDIS-What about Admiral Smith's testimony? Mr Kevin-Admiral Smith's testimony is extremely important. CHAIR-Greenlees might be a reporter or a journalist or a correspondent- Senator FERGUSON-I do not think the Greenlees report is a public record; it is a newspaper report, a newspaper article. Mr Kevin-It is investigative journalism; it just won the Walkley Award for the best Asia- Pacific coverage, and I respect the credibility of that journalism. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1351 Senator FERGUSON-It does not mean it is infallible, though, does it? Mr Kevin-Nothing is infallible. Senator MASON-Just to summarise where we are, Mr Kevin, I think that the two aspects of this left are: (1) we have in effect an intelligence report passed on, you have just said, which was not acted upon and (2) let us call it sabotage following the overloading of a boat. That is the second arm. Mr Kevin-On the second arm, gross overloading to that degree, under armed duress, in itself I believe is an act of sabotage. Senator MASON-Do you think the two arms of this hypothesis are linked in any way? Mr Kevin-I do not know. Senator MASON-In a sense, all this argument comes together on page 3 of your opening statement where you say: There is clear public knowledge now from Australian official sources, that there was some Australian official foreknowledge of the circumstances that led to the deaths of these 353 human beings. Mr Kevin-Yes. Senator MASON-You go on: This cries out for explanation and accountability. What you are arguing is that there was some official foreknowledge of the circumstances. That is a direct reference in particular to page 2 of the letter from Senator Hill to Mr Crean regarding the Rescue Coordination Centre. Are you referring to that part in particular? Mr Kevin-I was referring there more to Rear Admiral Smith's testimony where he said two things: firstly, on page 461 of Hansard: ... we had some information that a boat might have been being prepared in the vicinity of Sunda Strait but we had no real fixed information as to when it was going to sail. So we establish from that that the Navy, Operation Relex, knew that a boat was being prepared in the Sunda Strait area but they did not yet know when it was going to sail. On page 676 of Hansard-we have now moved from 5 April to 11 April-we have a statement by Rear Admiral Smith: They had advice from Coastwatch Canberra to say that the vessel believed to have sailed on or at the 19th- of October- for Christmas Island was overdue. They had got that information from intelligence and it was sensitive information. CERTAIN MARITIME INCIDENT CMI 1352 SENATE-Select Wednesday, 1 May 2002 Senator MASON-So you have the evidence from Rear Admiral Smith and Coastwatch. Mr Kevin-So there I have the evidence that something definitely was known about this boat sailing at the time it did. I believe that supports the statement that there was some Australian official foreknowledge of the circumstances that led to the death of these people. Senator MASON-I agree that those two bits of evidence from Rear Admiral Smith and Coastwatch seem to indicate that it is some evidence about the boat and the date of its departure. Mr Kevin-Yes. Senator MASON-So you say there was official foreknowledge of the circumstances that led to the deaths of these 353 human beings. Mr Kevin-Yes. Senator MASON-So that is drawing a different bow. Foreknowledge of the boat and its departure is not foreknowledge of the circumstances that led to the death of these people-it is a different issue. Mr Kevin-I have not mentioned the activities of Kevin John Enniss to this point, but this is a good opportunity to do so. We have the reports of the Channel 9 Sunday program on the activities of Mr Enniss. We also have official testimony to the Senate Legal and Constitutional Legislation Committee on 19 February at pages 137 and 138. I think it is very important to know that the Australian Federal Police were aware that Mr Enniss was a people smuggler and they knew that he was engaged in people-smuggling because he was telling them what was going on. I think it is also interesting and important to note that, in a subsequent article by Lindsay Murdoch-and this is on page 12 of my original submission-Enniss said that he was in a position to pass on to the Australian authorities information on `when the boats were going, who arranged them and who was on them'. And, of course, it was important for the Australian authorities to know how many people were on the boat because they used that information to prepare reception and interception facilities for them. They needed to know whether 50, 100, 200 or 400 people were coming. So I think, once again, it is one of my reasonable inferences. It is reasonable to infer that, if there was intelligence reporting of when this boat left and from where this boat left, that also contained the information that there were over 400 people on it. Senator MASON-I might yield to Senator Brandis who is itching to ask you a couple of questions. Senator BRANDIS-I am itching to understand what are you saying Mr Kevin. You directed us to page 461 of Hansard of this committee where Rear Admiral Smith tells us: ... we- that is the Navy- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1353 had some information that a boat might have been being prepared in the vicinity of Sunda Strait but we had no real fixed information as to when it was going to sail. Mr Kevin-Yes. Senator BRANDIS-It goes on: Indeed, the first time that the Navy knew that this vessel had sailed was when we were advised through the search and rescue organisation in Canberra that this vessel may have foundered in the vicinity of Sunda Strait. At that time our nearest ship was about 150 miles away. The reason it was so far away- you did not read this- was that we were not permitted to intercept or board vessels in Indonesian territorial waters. Indeed, our patrols were such that we were intercepting closer to our own territorial waters rather than to Indonesia so as not to create any tensions in those sorts of areas. That is the reason why there was no ship nearby. We were not in a position to do anything. Now you have directed us to that bit of the Hansard or parts of what I have read to you. All I can get from this, Mr Kevin, is that you say, because at some unspecified point the Navy had some information that a boat might have been being prepared to sail, and that at some much later time the Navy received information that that ship had sunk within Indonesian territorial waters when there was no Australian ship closer than 150 miles away-and you point to no intermediate piece of knowledge received by any Australian authority-you gather from that the proposition, on page 3 of your statement today, there was some Australian official foreknowledge of the circumstances that led to the deaths of these 353 human beings. Mr Kevin, can you please tell me what fact-other than the knowledge that a boat might have been being prepared to sail-constitutes official Australian foreknowledge of the circumstances that led to the death of these 353 people? Not inference, not conjecture, what fact, if any-in addition to those to which you have already referred-can you point to? Mr Kevin-That is a long question. Senator BRANDIS-That is a long preamble but a short question: what if any other fact can you point to? Mr Kevin-All of the facts I have already cited from Hansard, but I will go on offering more detailed references from Hansard. I am happy to go on doing that. Senator BRANDIS-Sure. We have Rear Admiral Smith on page 461. That gets you nowhere, with respect. We have Rear Admiral Smith on page 676, which gets you nowhere. Mr Kevin-Would you like me to answer the question, Senator? Senator BRANDIS-Go on with any additional references. Mr Kevin-I will. Senator BRANDIS-Give us your best case, as it were-all the relevant facts you point to. Mr Kevin-Senator, first of all, there is no basis for saying that it sank within Indonesian ter- ritorial waters. We do not know that. CERTAIN MARITIME INCIDENT CMI 1354 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-That is Rear Admiral Smith's evidence. Mr Kevin-He did not. He simply said that the reason our Navy ship was 150 miles away was that `we were not permitted to intercept or board vessels in Indonesian territorial waters'. Indonesian territorial waters extend to 12 miles from the coast of Indonesia. Beyond that, you have a contiguous zone from 12 to 24 miles. Beyond that- Senator BRANDIS-That is as I read Rear Admiral Smith, but in any event where does that get you, Mr Kevin, please? Mr Kevin-That is the first statement by Rear Admiral Smith about what we knew, but there were other statements subsequently that made it more concrete. Senator BRANDIS-What were they, please? Mr Kevin-The key testimony is really on 11 April, pages 676 and 677. Senator BRANDIS-Just point me to it, please. Senator FAULKNER-What page is this again? Mr Kevin-Pages 676 and 677. If you go down to the third paragraph, it says: In that particular instance, our nearest ship to where that boat sank was 150 miles away. We had no knowledge of the boat having sailed. That is a little bit of a contradiction there to the statement that you previously read out to me, that we had some knowledge- Senator BRANDIS-No, there is not. There is no contradiction at all, with respect. Rear Admiral Smith says at page 461: ... we had some information that a boat might have been being prepared in the vicinity of Sunda Strait but we had no real fixed information as to when it was going to sail. Indeed, the first time that the Navy knew that this vessel had sailed was when we were advised this vessel may have foundered ... So that is not a contradiction at all; it is completely consistent, Mr Kevin. Mr Kevin-It is not contradictory in terms of the integrity of Rear Admiral Smith's testimony but it is contradictory in terms of what I will go on to remind you of, which is that the first we were aware that this vessel had sailed from Indonesia was when we were contacted by the search and rescue organisation here in Canberra on 22 October when they advised us that this vessel was overdue and it was feared it had foundered in the Sunda Strait area. None of our surveillance that we had operating, aircraft or ships, had detected the vessel. Senator BRANDIS-What is that inconsistent with, please? Mr Kevin-I will go on, if I may. Senator Bartlett then asked how Search and Rescue knew it was overdue if they did not know it had left. Rear Admiral Smith replied: CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1355 They had advice from Coastwatch Canberra to say that the vessel believed to have sailed on or at the 19th for Christmas Island was overdue. Where they got that information from is a bit sensitive, I think; it is intelligence. That is the key question. It is there in black and white that Coastwatch had advice-Rear Admiral Smith indicates intelligence advice-that the vessel believed to have sailed on or at the 19th for Christmas Island was overdue. Senator FAULKNER-It is an important question but I do not know whether it is a key question. Three hours ago we were at the point, or I was at the point, of canvassing with you the possibility of clearly establishing with Coastwatch and the RCC or AMSA about some of those details. We are actually going to have an opportunity to question an official from AMSA at the conclusion of your evidence. It is fair to say that the timing of the advice to Coastwatch is unknown. The point that you make, and I think it is a valid point, is that you are not aware, and I do not think any of the committee members at this stage are aware, of how the process works between Coastwatch and AMSA in this particular instance. Beyond that, we are now starting to go round in ever decreasing circles, aren't we? Senator BRANDIS-I think the point that perhaps in different ways Senator Faulkner, Senator Mason and I have been at pains to make to you, Mr Kevin, is that, torture this testimony from Admiral Smith as you will, it does not seem to support the proposition that you advanced in your statement this morning that it is clear that there was some official Australian foreknowledge of the circumstances that led to the deaths. There is an innuendo, wouldn't you accept, in what you said this morning of some Australian culpability or responsibility for those deaths? That is the innuendo you make. You do not come out and say that; you are willing to wound but afraid to strike. But that is the innuendo, isn't it? Mr Kevin-I do not want to wound anybody and I did not come here to make innuendos. I came here to point out inconsistencies in the public record. Senator BRANDIS-Do you or do you not say that there was any level of Australian culpability in those deaths? Mr Kevin-I say that it is for your committee to find out. Senator BRANDIS-What do you say? Mr Kevin-I say it is for your committee to find out. Senator BRANDIS-You have raised the issue and then said, `I believe that the public record as it now stands would cast a serious slur on the honour and competency of our Navy and the ADF generally.' You, with respect, Sir, have cast the slur. Do you or don't you say that there was some Australian culpability for these deaths? Mr Kevin-With respect, Sir, I say that your committee has the power to call official wit- nesses under oath to find out the truth on these disturbing discrepancies in the public record. Senator FAULKNER-You are entitled, Mr Kevin, in answer to Senator Brandis in this case but to any committee member, to say that you do not know. That is a perfectly reasonable answer. There are questions asked to which you do not know the answer. CERTAIN MARITIME INCIDENT CMI 1356 SENATE-Select Wednesday, 1 May 2002 Mr Kevin-Yes, and I said I did not know a moment ago. Senator BRANDIS-So you do not make that allegation. Mr Kevin-Senator, I am not here to make allegations; I am here to bring to your committee's attention discrepancies in the public record of what Australia knew about this boat and what it did with the information. A system of intelligence, surveillance and interception that worked very well in the case of every other SIEV boat that was coming down in this period failed to work in this case and 350 people died. Senator BRANDIS-Do I understand you to be telling me that you do not allege any Australian culpability in these deaths? Mr Kevin-I am not here to allege; I am here to bring discrepancies on the public record regarding the Australian system of information and command to your attention, for your committee to do what you wish to do with it. Senator BRANDIS-Perhaps Senator Faulkner, Senator Mason and I are all stupid, but it is not apparent to us that there are such discrepancies in the public record. Senator FAULKNER-I wish you would not include me in that group. Senator BRANDIS-In any event, Mr Kevin, you do not suggest there is a culpability. Is that what I take from your evidence? At the end of the day, you do not make an allegation to that effect. Mr Kevin-Senator, I am not in a position to say whether there is culpability or not. It is for your committee to find this out. Senator BRANDIS-And it is for you, is it, to leave the slur on the honour and competency of the Navy and the ADF on the basis of no evidence at all? Mr Kevin-No, it is for me to say that this public record shows that the information in the command system was not working as it should have been in this very important case and 353 people died. Senator FAULKNER-In fact, just following on from that question from Senator Brandis, as I understood your evidence, Mr Kevin, you have made absolutely clear to us that you accept that Navy did not know until the 22nd of that month. Mr Kevin-I do. I accept that. Senator FAULKNER-You do accept that. I am just following through from Senator Brandis's question about the RAN and the ADF. It seems to me that we are still at the point that we were more than three hours ago. I am pleased that you have identified what were questions in the committee's mind. There are some process issues that need to be directed to Coastwatch, the RCC and possibly to other agencies. That really, at the end of the day, is what you are saying to us, is it not? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1357 Senator MASON-Sorry, Mr Kevin, but I am trying to elicit the other issue, Senator Faulkner-what we might call the `sabotage' issue. That is the other part. Senator FAULKNER-I raised that because-in my view-it was new, Senator Mason. Senator MASON-Indeed. Senator FAULKNER-That was raised in Mr Kevin's opening statement. You would recall that, as I questioned Mr Kevin about it, I did ask him at the end of that line of questioning whether he was suggesting that possibly there was any Australian involvement from Australian agencies, be it direct or indirect, in such sabotage. Like you, I accept that is a very serious issue. Senator MASON-My point was that it was also raised in submission 2A to the committee. Senator FAULKNER-Yes. Senator MASON-It was also in the opening statement. So it is not that new. The thesis is evolving. Senator BRANDIS-Mr Kevin, are you satisfied now that you have placed before the committee-or referred to the committee-every piece of evidence upon which you rely for the statement to which I have directed you in your opening statement, that is, the statement about Australian official foreknowledge? I do not want to be accused of cutting you off. If there is another piece of evidence beyond that to which you have referred Senator Faulkner, Senator Mason and me, let us have it now please. Senator FAULKNER-With respect, Senator Brandis, that is precisely the question I asked Mr Kevin before the luncheon adjournment, as you are aware. Senator BRANDIS-I know that, but these allegations have now been remade. Out of abundant caution, I just want to make sure that Mr Kevin does not have the opportunity to go away from this committee and say, `Well, there is other material I did not have the opportunity to give to the committee.' Senator FAULKNER-That is what the committee was saying before lunch, to be honest. Senator BRANDIS-Is there anything else? Do you have anything else, Mr Kevin? Mr Kevin-Senator, I continue to have difficulty with the word `allegations'. I do not think that describes my testimony today and I do not accept it as a description. What I am pointing you and your fellow members of the committee to are evident inconsistencies and discrepancies in the record of what was done with information in Canberra about this boat. I think there is a basis for the committee, in terms of the safety of life at sea obligation on Operation Relex and the border protection system, to take this further. That is all I am saying. Senator BRANDIS-Is there any other piece of evidence to which you wish to direct us? Mr Kevin-No. CERTAIN MARITIME INCIDENT CMI 1358 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-Thank you. CHAIR-I think we are in a position where we are going back over the same ground a bit. My understanding, frankly, is that you have raised these questions because you are horrified at the number of people who have died. That is a reasonable human response. You have put together a hypothesis which requires further investigation and you are asking us to undertake that investigation. That is my understanding of what you have been saying to us. Mr Kevin-With respect, I think once again we are taking it back-to-front. We are saying I have put together a hypothesis. I have put together a series of questions based on the public record. I am trying to retreat from the word `hypothesis'. CHAIR-Okay. Thank you, Mr Kevin. Mr Kevin-Thank you. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1359 [3.20 p.m.] DAVIDSON, Mr Clive, Chief Executive Officer, Australian Maritime Safety Authority CHAIR-Welcome to the committee, Mr Davidson. I apologise that we have taken so long to come to you this afternoon and that you have been called much later than the time we gave you. Unfortunately that is the way this has worked out. Do you have an opening statement? Mr Davidson-I do have a brief opening statement. AMSA is Australia's national maritime safety agency and has responsibility for maritime safety, protection of the marine environment, and aviation and marine search and rescue. In its search and rescue capacity, AMSA had an indirect involvement with three of the 12 interceptions of suspect illegal entry vessels, SIEVs, which occurred between early September and mid-December last year, as identified by Rear Admiral Smith at an earlier hearing. AMSA also had a minor involvement, after the event, in the case of the vessel that has become known as SIEVX, which was reported to have foundered on 19 October last year in Indonesian waters. In each case, AMSA was not involved in active search and rescue operations but received information about these vessels from other agencies and in three cases relayed information to the Indonesian search and rescue authority BASARNAS. AMSA's division of Australian Search and Rescue, known as AusSAR, operates a 24-hour rescue coordination centre in Canberra, which is responsible for the national coordination of both maritime and aviation search and rescue. Australia's search and rescue region covers almost 53 million square kilometres-or one-tenth of the earth's surface-and comprises the east Indian, south-west Pacific and Southern oceans. Our search and rescue region borders a number of other countries' designated search and rescue regions and we have a number of arrangements with our regional neighbours concerning cooperation in search and rescue operations. Indonesia and Australia have such an arrangement underpinning cooperation between AMSA and the Indonesian search and rescue authority BASARNAS. AMSA also works in close cooperation with Coastwatch and the Australian Defence Force in conducting search and rescue operations, particularly when it involves long-range, offshore operations. I seek to provide the committee with a document outlining AMSA's involvement in relation to each of the three SIEV events and with SIEVX. I believe that has been circulated to members already. The document summarises AMSA's involvement in three of the 12 SIEV events noted in documents tabled by Rear Admiral Smith at an earlier hearing of the committee. It notes that in one case-SIEV2-AMSA received advice from Coastwatch about the vessel being aground on Ashmore Reef. This advice was for information only and did not require AMSA to take any action. In the other two cases, AMSA conveyed advice to the Indonesian search and rescue authority BASARNAS about the situation of the SIEV. In the case of SIEV9, AMSA was contacted by ADF Maritime Headquarters and asked to advise BASARNAS that a disabled SIEV was drifting in the Indonesian search and rescue region. AMSA advised BASARNAS and asked that it take coordination of any search and rescue operation, which it agreed to do. Subsequently the vessel accepted a tow and AMSA again contacted BASARNAS that its assistance was no longer required. In the case of SIEV10, AMSA was asked by the Maritime Headquarters to advise BASARNAS about the rescue of people on board a burning Indonesian fishing vessel which was thought to be located in Indonesia's search and rescue region, and the CERTAIN MARITIME INCIDENT CMI 1360 SENATE-Select Wednesday, 1 May 2002 subsequent transfer of the rescued people to Ashmore Reef. AMSA passed on the information to BASARNAS and had no further involvement with the incident. In relation to SIEVX, I am aware of submissions to the committee raising questions con- cerning the prior knowledge of Australian authorities about the departure from Indonesia of this vessel, which subsequently was reported to have foundered in Indonesian waters on 19 October last year. AMSA's records show that it had no prior knowledge about the departure of this ves- sel. The first advice on our records was given by Coastwatch on 22 October last year. Coast- watch advised AMSA on 22 October at about 2.40 p.m. Canberra time that it had had reports from a number of sources that a vessel carrying an unknown number of people had left Indone- sia on 19 October, whereas it appears that the actual date of sailing, as later reported, was 18 October. The vessel was reported to be transiting the Sunda Strait and heading for Christmas Island. Coastwatch calculated that by then it was overdue. Coastwatch recognised that this area was outside Australia's search and rescue region and it was agreed that AMSA relay Coastwatch's advice to BASARNAS. AMSA advised BASARNAS about the suspected overdue vessel: that it had not arrived and there was concern for its safety. A copy of this advice was also sent to Coastwatch, the ADF Maritime Headquarters, the ADF Headquarters Australian Theatre, the Indonesian embassy in Canberra and the Australian embassy in Jakarta. Contrary to submissions made to this committee, AMSA had no prior warning about this vessel leaving Indonesia. We received no information from Coastwatch on 22 October that suggested the vessel was known to be in distress or known to have foundered and, contrary to media reports, AusSAR did not issue a general broadcast to shipping about the vessel being overdue. AusSAR only passed on to the ADF Maritime Headquarters and ADF Headquarters Australian Theatre the advice it had received from Coastwatch and had no other source of information about this vessel or its sinking in Indonesian waters. I appreciate the committee providing me the opportunity to make this short statement and I will be pleased to assist with any matters that you may wish to pursue in more detail. CHAIR-Thank you. Before we go to Senator Faulkner, there is one matter that I have to raise. In your attachment, a summary of what you have just said about each of these SIEVs on which you were reporting, on SIEVX on page 2 you say that it left Indonesia on 18 October and foundered on 19 October in the Sunda Strait. On what do you base the statement that it foundered in the Sunda Strait? Mr Davidson-That is an assumption on our part from reports that have been widely promulgated. Whether it was 85 kilometres or otherwise-we have no other basis for that. Senator FAULKNER-I will take this SIEVX issue as my starting point. I do not know if you heard any of the evidence that the committee heard from Mr Kevin recently, but he has raised issues of concern in relation to the reporting between Australian agencies about this particular vessel and its foundering. Is it true to say that normally you receive information about the suspected illegal entry vessels from Coastwatch? Is that the normal way that the departure of such vessels is relayed to you? Mr Davidson-Not in all cases, but yes, through Coastwatch would be the normal way. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1361 Senator FAULKNER-Could you just explain for the committee how and from whom you receive information about suspected illegal entry vessels? Mr Davidson-It would generally be through Coastwatch because that is the normal channel for us to communicate in relation to matters that would touch on AMSA's responsibility in search and rescue. Senator FAULKNER-But there is other information that you receive from other agencies? Mr Davidson-I would need to check that but I would expect that on occasions we may have got advice from other agencies at other times. Coastwatch acts for a range of departmental interests, and on occasion they may advise Coastwatch to look out for a vessel and they may come to us directly. I am aware of approaches from Immigration in the past. Senator FAULKNER-In relation to the numbered SIEVs-this is not counting SIEVX- were there any cases where you were not informed of their departure or of their existence, in the first instance, by Coastwatch? Mr Davidson-In relation to SIEV2, Coastwatch contacted AMSA about it. In relation to SIEV9, the first contact to the Rescue Coordination Centre within AMSA was from Maritime Headquarters. In relation to SIEV10, Maritime Headquarters contacted the RCC in the first instance. In relation to SIEVX, we received it from Coastwatch. Senator FAULKNER-Thank you for that. What about the other numbered SIEVs? Mr Davidson-We were not advised of those. Senator FAULKNER-That is the full picture as far as these SIEVs are concerned? Mr Davidson-That is correct. Senator FAULKNER-That is helpful. In the supporting documentation to your opening statement you indicate that the RCC hears about SIEVX by telephonic advice from Coastwatch on 22 October 2001. That is correct, isn't it? Mr Davidson-That is correct. Senator FAULKNER-In fact, you are able to identify that at 2.40 p.m. Canberra time. You go on to say that a number of sources reported that a vessel had departed Indonesia on 13 October 2001. Are you able to indicate to the committee what that number is? Mr Davidson-That was the advice that we were given, in that language and in those terms. We were not advised what the sources were. It was simply advised to us by Coastwatch in those words. Senator FAULKNER-Fair enough. There are two issues here: you were not informed of the number of sources and the actual sources themselves were not identified. I just want to be clear on it. CERTAIN MARITIME INCIDENT CMI 1362 SENATE-Select Wednesday, 1 May 2002 Mr Davidson-That is correct. Senator FAULKNER-That is what you are saying to us. You are also indicating that it was heading to Christmas Island via the Sunda Strait. Mr Davidson-That is correct. Senator FAULKNER-Do you have a watch keeper or a desk officer who takes contemporaneous notes of these sorts of things? Mr Davidson-That is how it operates. We have a 24-hour-a-day, 365-day-a-year operation. The centre is staffed with both mariners and aviators trained in search and rescue techniques and when they get telephone calls, they will keep contemporaneous notes of the calls and act on those. Senator FAULKNER-Have you been able to check those notes to your own satisfaction so this information that you have provided for us is accurate? Mr Davidson-Yes, I have. Senator FAULKNER-And they were taken by one of your desk officers? Mr Davidson-Yes, that is correct. Senator FAULKNER-I see. I think you are saying to us that this is standard operating procedure. Mr Davidson-Yes, that is perfectly correct. Senator FAULKNER- What does not appear to be standard operating procedure-not for the Rescue Coordination Centre but, if you like, for the operations on the SIEVs in the broad- is for such a time lapse to occur. Would that be fair? Mr Davidson-In what sense do you mean a time lapse? Senator FAULKNER-In the sense that it appears that this particular SIEV-SIEVX- leaves a port in Indonesia either late on 18 October or on 19 October and you do not actually hear a report from Coastwatch until effectively three days later. It seems unusual. Mr Davidson-No, because when we were informed of most of the contacts, they were already in contact with Australian Navy forces or Coastwatch had identified them. In this case, there had been no contact with the vessel. It was presumed that the vessel had left. No-one had picked it up or identified it and so, no, it was not unusual. I would suggest that, once it is in contact with the Navy or when Coastwatch had located it, that would be when they would normally advise us. Senator FAULKNER-The next step for you is to pass it on to BASARNAS. Is that right? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1363 Mr Davidson-Yes, that is correct. Senator FAULKNER-Do AMSA or the RCC have any other contacts? Is it only to BASARNAS? Mr Davidson-The fax was copied to the other people I listed there. Senator FAULKNER-But is that your standard approach? You advise BASARNAS by facsimile. Is that right? Mr Davidson-That is correct. Senator FAULKNER-Is that the normal way you do these things? Mr Davidson-Yes. Senator FAULKNER-And a copy of that fax message goes to the list of agencies- Mr Davidson-Automatically. Senator FAULKNER-In a sense, it is a broadcast fax. It is an automatic thing. Mr Davidson-There is a list of people that it would be copied to because of the nature of the particular transmission. We would send it to BASARNAS. We would copy it to the Australian embassy here in Canberra and to the Australian embassy in Jakarta and, as a matter of course, we copy it to Coastwatch, Navy and Headquarters Australian Theatre. Senator FAULKNER-In this case, Headquarters Australian Theatre comes back to you and you refer all inquiries to Coastwatch. Mr Davidson-That is correct. Senator FAULKNER-As far as Australian agencies are concerned here, is it fair to say that Coastwatch is the key or central agency in this particular incident in terms of the detail of a broader understanding of the background and process? Mr Davidson-I think you would have to test that with them. Senator FAULKNER-Have you tested it with them? Mr Davidson-No, I have not. Senator FAULKNER-You have had no discussions with Coastwatch about the SIEVX incident? Mr Davidson-No, I have not. CERTAIN MARITIME INCIDENT CMI 1364 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Have you had discussions with any other agencies about the SIEVX incident? Mr Davidson-I had a brief discussion with Defence about it. Senator FAULKNER-And when did that occur? Mr Davidson-Last night. Senator FAULKNER-And what was the nature of that? Mr Davidson-Merely touching on the issues associated with the fax that we are putting forward. Senator FAULKNER-Did it relate to your evidence today? Mr Davidson-No. Senator FAULKNER-Could you outline just briefly the nature of that contact so that we can understand? Mr Davidson-We are tabling before you a fax which has been copied to Defence and we wanted to ensure that Defence agreed that the fax that we were putting up was consistent with their understanding and that there had not been other contacts that we were not aware of on our files but which had happened from their perspective. Senator FAULKNER-That is fair enough. I am just trying to understand. Mr Davidson-Just to clarify, the purpose was to ensure that we had captured all the contacts that we had recorded and that they were complete to the best of our knowledge. Senator FAULKNER-But you are saying to us that this is done basically via facsimile; it is not done by people getting on the telephone and the like. I assume it is a reasonably quick turnaround, but it is exclusively by facsimile message. Mr Davidson-The contacts? Senator FAULKNER-Yes, in relation to the SIEVX event. Mr Davidson-Not necessarily, Senator. There would be telephone conservations between officers in relation to clarifications or follow-up matters. Senator FAULKNER-Are you able to share with us what might have occurred in terms of any exchange of information in the SIEVX incident that was not by the facsimile messages that you have outlined to us? Mr Davidson-The first contact that we had from Coastwatch was by telephone. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1365 Senator FAULKNER-Yes, I appreciate that. Mr Davidson-And from that was generated the fax that has been circulated. Beyond that, I think there were a couple of other phone calls. Senator FAULKNER-Can you say who they went to? Mr Davidson-I can. A phone call was received from Coastwatch at approximately 2.40. Senator FAULKNER-Sorry? Mr Davidson-Coastwatch telephoned us at approximately 2.40. Senator FAULKNER-Thank you. Mr Davidson-At 2.45, Coastwatch sent a fax confirming the conversation. At 2.52 AMSA rang Coastwatch. At 3.05, the RCC within AMSA did its own calculations in relation to the potential overdue nature of the vessel. At 3.15 or 3.16 we sent the fax we have attached. At 3.46 Headquarters Australian Theatre rang advising that they had received the fax and that was the end of the contact at that time. Senator FAULKNER-For the benefit of the committee, would you describe that process as pretty standard in a circumstance like this? Mr Davidson-I would. Senator FAULKNER-It was nothing out of the ordinary in terms of the amount, number and nature of communications? Please understand that I do not have a close understanding of how the RCC works. Mr Davidson-It was quite typical. I would regard that as quite normal. Senator FAULKNER-Are you clear as to who had presumed that this vessel had left, whether it was Coastwatch or some other source? Are you able to shed any light on that at all for us? Mr Davidson-No. Senator FAULKNER-So, as far as AMSA is concerned, your standard approach is to ac- cept the nature of the information that is passed to you by Coastwatch-or, for that matter, by any other agency-and to act upon it? Mr Davidson-That is correct. Senator FAULKNER-But in this case you did not at any stage get behind that original communication from Coastwatch and explore it any further? Mr Davidson-No. CERTAIN MARITIME INCIDENT CMI 1366 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Given the tragic loss of life in SIEVX, are there any special procedures that apply within AMSA in a situation where lives are lost, in this particular case in a very significant number? Mr Davidson-We do conduct reviews, depending on the nature of searches that we have been involved in. We share the concern about the loss of life and the numbers involved but, at the time, this was not known to be a search and rescue event. The review, to the extent that one has been done, is more within my own sphere within the organisation as to whether we acted reasonably in the circumstances at the time. Senator FAULKNER-Has there been a review in relation to this incident? Mr Davidson-There has been no particular review. Senator FAULKNER-Have you satisfied yourself? Mr Davidson-Yes, I have. Senator FAULKNER-Would you tell us very briefly how you have done that. Was it a records check? How have you come to that conclusion? Mr Davidson-Obviously, we have been preparing for our appearance before the committee. We are aware of the submissions that have been made. I have looked at the submissions put forward and have examined the actions that were taken at the time with the knowledge that we had at the time, and I have formed the view that, in all the circumstances, those actions were reasonable and complete. Senator FAULKNER-Mr Davidson, I do not know if you have had the benefit of seeing Senator Hill's letter to Mr Crean that has been canvassed this morning. Has anyone drawn that to your attention? Mr Davidson-I saw it this morning, very briefly. Senator FAULKNER-I am glad that you have because I want to ask you about the additional Senate estimates for the Rural and Regional Affairs and Transport Legislation Committee, just to wind the clock back for a moment to 19 February this year. I do not know if you recall a question on notice that Senator O'Brien asked. He placed this question on notice during questions on AMSA output 2.1: Did AMSA have any role, receive any information or provide any assistance or advice in relation to the refugee boat that sank on 19 October last year? ......... I want to know whether you received any distress information or calls, or had any knowledge of the boat being in difficulty and what response, if any, AMSA took. The answer to that question, provided on notice, is that `AMSA records show that it did not'. I wonder if you could explain to me how that answer fits with the advice to Mr Crean that has been provided here by Mr Kevin. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1367 CHAIR-Mr Kevin introduced it into the proceedings by tabling it. Senator FAULKNER-While it is a letter from Senator Hill, it is provided via Mr Kevin. That answer does not seem to fit with the written response from Senator Hill, and I wondered if you might just explain that the committee. In other words, when AMSA is asked if it had any role, received any information or provided any assistance or advice in relation to the refugee boat that sank on 19 October, how can AMSA records show that it did not when you have just informed us of what in fact took place? Mr Davidson-The question that was put on notice was very explicit: in relation to actions in relation to a search and rescue or distress situation. At no stage did we act in relation to any of those matters. The fax that we sent related to a vessel that was reportedly overdue, and that was it. There were no actions taken in relation to the distress situation or a search and rescue. Senator FAULKNER-Let me just repeat the first part of the question again: did AMSA have any role, receive any information or provide any assistance or advice in relation to the refugee boat that sank on 19 October last year? Haven't you explained to me what AMSA's role was and what information was provided to you, and from you to other agencies, just a moment ago? Mr Davidson-Senator, I go on with the rest of the question, which was: I want to know whether you received any distress information or calls or had any knowledge of the boat being in difficulty. The answer is- Senator FAULKNER-That is the second part of the question. Yes, sure, there are two parts to the question. The first question is: did AMSA have any role, receive any information or provide any assistance or advice in relation to the refugee boat that sank on 19 October last year? A second question is asked-as you properly point out, as I did earlier-about distress information or calls. And the answer is: AMSA records show that it did not. I do not understand, Mr Davidson, how that answer to the question on notice stands when we now know that you did have a role. I am not saying you had a massive or major role, but there is a series of communications here-a primary one from Coastwatch to you, and you take a range of other actions and receive phone calls, send faxes and the like. I am not critical of any of that. I do not understand how you could provide that answer to the question on notice. Mr Davidson-I can only answer it as I said: the minister's answer to the question on notice is tendered in relation to the question posed. I regard that second sentence as a qualifier: the question was tendered and then the second part of it is to qualify it. Our response to that is we did not know that it was a distress situation. There were no distress calls, there were no search and rescue actions taken and there were no matters in relation to it being a search and rescue event. Senator FAULKNER-Was this answer-`AMSA records show that it did not'-the draft answer that went to the minister? Mr Davidson-I could not recall, Senator. I have no idea at the moment. Senator FAULKNER-It is standard operating procedure in AMSA to prepare the answers for the minister, isn't it? CERTAIN MARITIME INCIDENT CMI 1368 SENATE-Select Wednesday, 1 May 2002 Mr Davidson-That is correct. Senator FAULKNER-The minister ticks off on it-I am going to accept that-but you prepare them, don't you? Mr Davidson-Yes, we do. Senator FAULKNER-So can you tell me, please, is that the draft answer prepared by AMSA for the minister? Mr Davidson-Senator, I will have to take that on notice, because I have no recollection of this specific matter. Senator FAULKNER-I would appreciate you coming back, because I might need to follow it through with you, but do you understand my concern about this, Mr Davidson, given the two parts of the question? When asked on notice by a senator: ... did AMSA have any role, receive any information or provide any assistance or advice in relation to the refugee boat that sank on 19 October last year? the answer provided is `AMSA records showed that it did not'. That answer is wrong, isn't it, Mr Davidson? Mr Davidson-Senator, I submit that the answer, in relation to the details of whether AMSA was involved in receiving any distress information or distress calls or had any knowledge of the boat being in difficulty and in relation to the response, if any, that AMSA made to that, is that in this matter there was no such action taken. Our records show that they did not take place. Senator FAULKNER-You did receive information, didn't you, from Coastwatch? Mr Davidson-We were advised on 22 October that there was a vessel that was thought to be overdue. Senator FAULKNER-Yes, and you did have a role, didn't you, because you passed this on to a range of other agencies? Mr Davidson-We passed it on to BASARNAS. Senator FAULKNER-So, I say again, the answer is wrong, isn't it, Mr Davidson? Mr Davidson-I do not accept that, Senator. Senator FAULKNER-Anyway, I would like you to check the draft answer that went from AMSA to the minister, if you would not mind, Mr Davidson. Chair, I would like to move to some more general matters, and I do appreciate that, in relation to SIEVX, maybe one or two of the other senators would like to follow some issues through. CHAIR-I have had an indication that none of the government senators, at this stage at least, have questions for this witness. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1369 Senator FAULKNER-I have some and Senator Collins does too. CHAIR-I have some general questions for the witness myself. Senator JACINTA COLLINS-I have direct ones and some general ones too. Senator FAULKNER-I would like to come back to some more general questions at a later stage. I just thought it useful to do that while we had Mr Kevin's evidence fresh in our minds. Senator JACINTA COLLINS-Mr Davidson, further on the SIEVX incident-and I also have some general questions, because I want to visit the Tampa episode with you as well, but I will do that later-you have gone through the detail of the actions taken between 2.45 p.m. and 3.46 p.m., but my question relates to some of the information provided by the minister to Mr Crean in the letter that you were discussing with Senator Faulkner a moment ago. Did you prepare the information to the minister on which this letter was based? Mr Davidson-Are you referring to Minister Hill? Senator JACINTA COLLINS-Yes. Mr Davidson-No, we did not. Senator JACINTA COLLINS-Do you know from the AMSA end how the minister required this information about AMSA? Mr Davidson-Not in detail at the moment. Senator JACINTA COLLINS-So when the minister tells Mr Crean: Consultation with the Rescue Coordination Centre (RCC) Australia has indicated that Coastwatch Australia advised the RCC that a vessel had departed the Sunda Strait on or about 18/19 October bound for Christmas Island, and that the vessel was overdue. you are not aware of how that advice went to the minister? Mr Davidson-No, I am not. Senator JACINTA COLLINS-The question that flows from this that you may or may not be able to help me with relates to one of the comments made in the minister's letter: No response was received from BASARNAS. Is that your understanding of what followed the series of activities that occurred within AMSA? Mr Davidson-That is correct. Our records show that there was no contact from BASARNAS with us, as a consequence of our notice to them. CERTAIN MARITIME INCIDENT CMI 1370 SENATE-Select Wednesday, 1 May 2002 Senator JACINTA COLLINS-You referred to a couple of the SIEV incidents where you indicate there was contact with BASARNAS and, in fact, agreement as to the role that BASARNAS would then undertake. Can you explain to us why that did not occur in this case? Mr Davidson-I can only speculate, Senator, but the facts, as known at that time, were that a vessel was thought to have departed and, by calculations, was overdue. On that basis, that information was simply passed to BASARNAS for their information and attention. Senator JACINTA COLLINS-Is it common for BASARNAS not to respond? Mr Davidson-If we send a fax to BASARNAS on a matter, it depends on whether or not we ask for a response. It would be common for them not to respond. Senator JACINTA COLLINS-It would be common for them not to respond? Mr Davidson-Not to contact us back again, correct. Senator FAULKNER-How are you sure they get it? Mr Davidson-We do ring them from time to time and have discussions to ensure that they are aware of the situation. In a case like this, I think our records show there wasn't any phone contact. Senator FAULKNER-When there are 300- or 400-odd people floating around on a leaky boat- Senator JACINTA COLLINS-And you said in your communication `concerns have been expressed for its safety'. I am not sure how you define what does or does not get to the calibre of a distress signal, but you have clearly indicated in this facsimile that concerns have been expressed for its safety. Do you just sit back and accept that there is no response? Mr Davidson-The nature of the number of people on board the vessel was unknown, the departure point was unknown, the calculations that were undertaken were based upon assump- tions being made by Coastwatch and then confirmed by the RCC and, on that basis, BASARNAS was advised of the information. Senator FAULKNER-Admiral Smith was able to say, if his memory served him correctly: ... we had some information that a boat might have been being prepared in the vicinity of Sunda Strait but we had no real fixed information as to when it was going to sail. He then said-which we already know: Indeed, the first time that the Navy knew that this vessel had sailed was when we were advised through the search and rescue organisation in Canberra ... That is you. Mr Davidson-That is correct. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1371 Senator FAULKNER-So it does appear that there is some knowledge that `a boat might have been being prepared in the vicinity of Sunda Strait'. That is an indication that there is some knowledge at least in the hands of Navy. It does not mean it is in your hands, of course; I appreciate that. I assume that information would not normally come to you? Mr Davidson-No, not in the normal course. Senator FAULKNER-But it might? Mr Davidson-Not normally and not in this case. Senator FAULKNER-Not in this case. Senator JACINTA COLLINS-The next component of the minister's letter that concerns me is the comment: ... RCC Australian did not issue a broadcast to shipping on the overdue vessel, as there was insufficient information on the vessel's location. Did you seek at any time to clarify information with Coastwatch as to the vessel's location? Mr Davidson-The information we had at the time was that a number of sources were reporting that a vessel carrying an unknown number of potential illegal immigrants departed the west coast of Java on Friday 19th transiting the Sunda Strait and heading for Christmas Island. That was the sum total of our information. Senator JACINTA COLLINS-When the decision was made that there was insufficient in- formation on the vessel's location, was that decision made in the light of attempts to acquire further information being unsuccessful? Mr Davidson-I do not think we concluded at any stage that there was insufficient information on its location. Senator JACINTA COLLINS-With respect, the minister's letter to Mr Crean states: ... with respect to the notice and RCC Australian did not issue a broadcast to shipping on the overdue vessel, as there was insufficient information on the vessel's location. Mr Davidson-As I said earlier, I am unaware of where that information was gathered from within AMSA. Senator JACINTA COLLINS-So you are telling us that the information that the minister has provided to Mr Crean has come without your awareness and you tell us, contrary to what is in this letter, that at no stage did AMSA reach the conclusion that there was insufficient information on the vessel's location? Mr Davidson-I can say that there was complete uncertainty about whether the vessel existed at all. There were sources of information that went to a whole range of issues and we acted, in my view, at the time in an appropriate fashion. CERTAIN MARITIME INCIDENT CMI 1372 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-How do you know about the sources of information? Mr Davidson-We were advised from Coastwatch that there were a number of sources of information that were advising that the vessel was departing on or about the 19th and that it was overdue by their calculations Senator JACINTA COLLINS-On your evidence, why did RCC Australia not issue a broadcast to shipping on the overdue vessel? Mr Davidson-We would not, in the normal course of events, issue a broadcast to shipping unless we had a specific, known distress alert; that is, a vessel has issued an SOS or has set off an emergency beacon or a flare or has indicated a distress. In the absence of anything of that nature, we would not go out and do a general broadcast to shipping. Senator JACINTA COLLINS-What occurred then, for instance, in the Tampa incident, when we had aerial surveillance of a ship outside our territorial waters? The difference there is that there was actually a plane in the vicinity to see a distress signal; is that the case? Mr Davidson-That is correct. Senator JACINTA COLLINS-How did that plane happen to be in the vicinity whereas there could not be one in this case? Mr Davidson-I have no idea, Senator. That is a matter that is up to Coastwatch. It was a Coastwatch aircraft. Senator JACINTA COLLINS-Okay, so we are back to Coastwatch again. Mr Davidson-Yes. Senator FAULKNER-Have you ever sighted or heard of any P3 Orion photographs of SIEVX? Mr Davidson-No, Senator, I have not. Senator FAULKNER-The committee has had drawn to its attention rumours about such photographs, but let us be clear: you have not seen or have any knowledge of those at all? Mr Davidson-The first I heard of it at all was in relation to the evidence that was taken before this committee a matter of moments ago. I have not heard of any suggestion before that. Senator JACINTA COLLINS-I have one clarifying point that I wanted to raise at this stage. You said in your submission that, contrary to submissions made to the committee, AMSA had no prior warning about this vessel leaving Indonesia. I am certainly aware of concerns expressed that Australian authorities may have had prior knowledge. I am not aware of a claim that AMSA is the body which did. Is there something that I have missed? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1373 Mr Davidson-Merely that, being in charge of AMSA, I am able to say to the committee that we had no prior knowledge about it. Senator JACINTA COLLINS-No, I understand that, but you are saying `contrary to submissions made to the committee'. I am not aware of submissions that said AMSA had prior knowledge. Have I missed something or are you referring to submissions which stated that an Australian authority may have had prior knowledge? Mr Davidson-That latter point-yes, that is correct. Senator JACINTA COLLINS-So it could well be Coastwatch, which leaves AMSA completely in the clear? Mr Davidson-It may be, yes. Senator FAULKNER-Would you be able to provide, for the benefit of the committee, copies of those communications that you mentioned to us a little earlier-the hard copies, the records in whatever form they are kept? There are only a few of them. Mr Davidson-I will take that on notice, Senator. Senator JACINTA COLLINS-I have one further question: you have gone through the de- tails of communications with AMSA at the time of the incident. We have heard evidence about concerns about how much organisation there appeared to be back at the Indonesian end when the ship got back. Were there any later communications with AMSA in relation to this vessel? Mr Davidson-In relation to SIEVX, there were communications, not with Indonesia at all, but in February, post Senate estimates hearings, on 5 March, and on Wednesday, 10 April, in relation to the Maritime Headquarters. Senator JACINTA COLLINS-But there was nothing within the next few days after this- Mr Davidson-No, nothing at all. Senator JACINTA COLLINS-Just this fax that went out. Mr Davidson-The last record in relation to the few days around it was on the afternoon of 22 October. Senator FAULKNER-What were the communications on 5 March and 10 April? Mr Davidson-They were merely in relation to questions that I believe had been raised during Senate estimates hearings with the Department of Defence in relation to the SIEVX matter. Senator FAULKNER-Who were those communications with? Mr Davidson-They were with Maritime Headquarters Australia. CERTAIN MARITIME INCIDENT CMI 1374 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Did you say that was on 10 April? Mr Davidson-It was the same again, yes. Senator FAULKNER-More generally, how did AMSA operate, prior to the formation of the People Smuggling Task Force, in relation to suspected illegal entry vessels? In this case, I am using lower case letters for those sorts of vessels, in the broad. Could you briefly explain to the committee how AMSA undertook its responsibilities prior to the PSTF establishment? Mr Davidson-It would not have been largely different from the arrangements; in fact, I would be hard-pressed to identify any differences at all. We would become aware of vessels that may have arrived at Christmas Island. For example, we were advised of a search and rescue when an Australian yacht, sailing off Christmas Island, discovered swimmers in the water and notified us that there was a search and rescue. They saved the people involved; the rest of the crew and people had perished. So, in terms of the actual events, that would be almost the same as what is currently operating: we would use largely the same contacts-Coastwatch operations were a principal point of contact-and if there was a search and rescue we would get involved and we would be responsible for any search and rescue effort if it was in the Australian search and rescue region. Senator FAULKNER-Your charter really extends only to illegal entry vessels in distress, doesn't it? Mr Davidson-That is correct. Senator FAULKNER-You mentioned that you might become aware of those. Again, would that normally be as a result of a communication from Coastwatch? Would that be the normal situation? Mr Davidson-That would be more normal, yes. Senator FAULKNER-At times, would you have this drawn to your attention by other agencies or authorities? Mr Davidson-In the period we are talking about-September to December, when the presence of Navy was at a high concentration in that area-the Navy may have been aware of those things ahead of Coastwatch or contemporaneously with Coastwatch. Senator FAULKNER-My questions really go to prior to the establishment of the task force; pre-Tampa, if you like. I am really asking if it would normally be Coastwatch that- Mr Davidson-It would normally be Coastwatch, yes. Senator FAULKNER-Is there any capacity to pick up SOSs, distress signals, directly or indirectly, at AMSA itself? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1375 Mr Davidson-There is a capacity: we have a satellite based system for picking up emergency position beacons, which are beacons that can be set off by boat owners who carry such a thing. It would not be common for vessels of this nature to carry equipment like that. Senator FAULKNER-Yes, that is what I wondered. I assumed that would not be a common event for an illegal entry vessel. Mr Davidson-I cannot recollect any case where they have used one. Senator FAULKNER-I understand the point you make about the Navy from August 2001 on; it was Coastwatch prior to that. Are there any other major sources of information that you could draw to the committee's attention? Mr Davidson-No, Senator. Senator FAULKNER-When you are informed of such a situation, what are AMSA's procedures? Do you try to locate the vessel in the first instance? Alert shipping? Call in whatever resources might be appropriate-air support or whatever might be the case? Mr Davidson-Are you talking about when we have been advised of a distress situation? Senator FAULKNER-Yes. Mr Davidson-To my recollection, there have not been very many of them. We would take appropriate actions. If it were in the Indonesian search and rescue region-which Christmas Island is-and the vessel were transitting to Christmas Island, we would notify BASARNAS as a matter of routine and in accordance with the agreements that operate between Indonesia and ourselves. Senator FAULKNER-What was the situation that applied in the case of the Tampa and the Palapa, which was the illegal entry vessel there? Can you explain to me what role AMSA had in that particular incident? Mr Davidson-To the best of my recollection, the information came to us that there was a vessel signalling that it was in distress. In accordance with the procedures, we immediately notified BASARNAS of a distress situation within their search and rescue region, which this was. At the same time, we issued a broadcast to shipping, giving the position of the distress vessel as we had received it. That is consistent with the protocols that exist internationally, which is that the search and rescue agency that first becomes aware of a distress event prosecutes all actions until it has been handed over to the authority responsible for that search and rescue region. Senator FAULKNER-In this case in relation to the Palapa and the Tampa incident, did that information come to you from Coastwatch? Mr Davidson-That is correct. Senator JACINTA COLLINS-Can you tell us how Coastwatch acquired that information? CERTAIN MARITIME INCIDENT CMI 1376 SENATE-Select Wednesday, 1 May 2002 Mr Davidson-I believe they had an aircraft which was overflying the vessel. Senator JACINTA COLLINS-So they had an aircraft which was overflying Indonesia's responsibility area? Mr Davidson-The search and rescue responsibility, yes. Senator JACINTA COLLINS-Can you explain to us why that would be? Mr Davidson-The boundaries between search and rescue regions and any other boundaries of international agreements are based upon what country is best placed to act. The boundary between Australia and Indonesia-and we have given you a chart which actually shows that on the back of the tendered material-relates to nothing more than an area which each agency is best placed to respond. That corresponds with both the aviation search and rescue region as well as the maritime one. It has no material influence on where aircraft fly or where boats sail; it just dictates who will respond to a search and rescue event. Senator JACINTA COLLINS-But both of those incidents were in Indonesia's search and rescue zone, but in one of those instances we had an aircraft available to receive a distress signal and in the other one we did not. Mr Davidson-I cannot comment on- Senator JACINTA COLLINS-The zones do not necessarily explain that difference in those two circumstances, do they? Mr Davidson-No. Senator FAULKNER-When did you receive the advice from Coastwatch in relation to the Tampa? Mr Davidson-I would have to take that on notice. Senator FAULKNER-I would appreciate it if you would. Can you indicate whether there was a delay between when you received that advice about the Palapa and when you took the next steps? Mr Davidson-To the best of my recollection, we acted pretty promptly. The vessel was signalling a distress, an SOS, and actions were taken consistent with the fact that the people were declaring a distress situation. Senator FAULKNER-So we do not get bogged down on this at this stage, would you be happy to take on notice, please, a time line in relation to AMSA or the RCC's role with the Tampa from the time that this issue was drawn to your attention by Coastwatch? Would you be able to do that for us? Mr Davidson-Yes. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1377 Senator FAULKNER-I am happy to laboriously work through this, but it does sound as if, which is fair enough, you may not have been necessarily prepared to answer- Mr Davidson-I certainly have not come prepared to answer questions on that matter. Senator FAULKNER-I understand that; that is fine. Could you provide a time line for us of the key involvement of AMSA or the RCC after the detection of the Palapa? My recollection is that that is Saturday, 25 August, but I might have that wrong. This is right through to the time, of course, that people are rescued and they find themselves on board the Tampa. Would you be able to do that for us? Mr Davidson-I think we could do that for you. Senator FAULKNER-And if you need to put in any explanatory material if there are time delays, I would appreciate that too. Mr Davidson-Yes. Senator FAULKNER-Were you asked to monitor the situation in relation to the Tampa in any way after those on board the Palapa embarked on the Tampa? Mr Davidson-My recollection is that we were, yes. Senator FAULKNER-Could you explain the nature of that to the committee, please? Mr Davidson-I need to check the records in relation to that to give you an accurate answer. Senator FAULKNER-If you would not mind again taking on notice-we may have to follow this up, Mr Davidson-where this advice comes from. I would be interested to know when it goes, what the nature of the advice is and what AMSA's response is. I would like to have a broad understanding of that, if I could, in relation to AMSA's ongoing role. Would it be normal in a situation like this that AMSA would have an ongoing role? Mr Davidson-Senator, I would never describe that incident as being normal. It was in my view unprecedented. Senator FAULKNER-When did AMSA get involved in the People Smuggling Task Force? Mr Davidson-I think I attended on a couple of occasions, but again I would have to check my records on that. Senator FAULKNER-Were you invited to the People Smuggling Task Force on Tuesday, 28 August and a second meeting on Saturday, 1 September? Mr Davidson-I think that sounds about correct with my information, but I need to check my records on that; I do not have that with me. CERTAIN MARITIME INCIDENT CMI 1378 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-I am interested to understand why, if the rescue had been completed, AMSA would be attending those meetings. Can you broadly explain that to the committee? Mr Davidson-I think there were concerns that there were other vessels potentially arriving and that indeed they may get into a similar situation requiring search and rescue action. Senator FAULKNER-So AMSA's involvement on those task forces on those dates was not in relation to the Tampa? Mr Davidson-You are testing my recollection of the issues that were discussed. There were a whole range of issues discussed, as I broadly recollect, and AMSA's involvement went to a range of issues. Matters associated with the condition of the vessel and whether it was seaworthy or otherwise were also matters that were discussed. Senator FAULKNER-Was it the department of immigration that asked you to monitor the Tampa after the rescue of the people from the Palapa was completed? Mr Davidson-I need to confirm that, but that is my recollection. Senator FAULKNER-I would like you, if you could, to confirm that, and who conveyed that request and when, and if it was only the department of immigration. Could you take that on notice? Mr Davidson-Yes, I will take that on notice. Senator FAULKNER-How often would a request be made by Immigration to AMSA to monitor a vessel that had undertaken a rescue? Was that new ground too? Mr Davidson-I suspect it was new ground. Senator FAULKNER-So that had never happened before? Mr Davidson-Not in my recollection. Senator FAULKNER-Do you know what the purpose of that particular request was? Mr Davidson-No, Senator, I do not. I think it was reasonable that people would want to know what was happening. My recollection is that the vessel was proceeding on its way. The expectation had been that the vessel was intending to drop off the rescuees in Indonesia and then proceed on to Singapore. Senator FAULKNER-What has that got to do with AMSA? Mr Davidson-Other than the fact that we had issued the broadcast, no particular interest. Senator FAULKNER-Do you remember how long after the Palapa was detected that the broadcast had been issued? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1379 Mr Davidson-No, I do not. I do recollect that the vessel initially was described as drifting and there was no distress situation initially. It was subsequent Coastwatch flights that determined that the vessel was then in distress and that actions were taken. Senator FAULKNER-So it is when a vessel is in distress that you take the action to contact shipping in the area? It is only when a vessel is in distress? Mr Davidson-Absolutely. It is only when a vessel is in distress. Senator FAULKNER-So in the time line that you are providing for us-so that again we do not get bogged down and spend a long time here unnecessarily-could you indicate when that advice came through from Coastwatch also? Mr Davidson-Yes, we can. Senator FAULKNER-I assume this was coming through from the Orions? Mr Davidson-I am not sure what aircraft would have been flying. Senator FAULKNER-You might be able to establish that. Mr Davidson-It would be the Coastwatch aircraft. Senator FAULKNER-Is there any truth to the suggestion that AMSA-having fulfilled whatever the normal obligations and requirements are in relation to distress signals, which in this case were from the Palapa, and once those people were on board the Tampa-became effectively the communication vehicle by which government agencies communicated with the captain of the Tampa? Mr Davidson-We were the principal communicator. Senator FAULKNER-You were the principal communicator. Is that how it normally works in situations like this? Mr Davidson-I repeat that I do not think it was a normal situation. But, yes, we have the facilities to communicate with vessels via fax. We have the lists of the Inmarsat sea satellite phone contact numbers for ships. So we would become the principal source of communication and we would do that as a matter of routine. Senator FAULKNER-So when did the involvement of AMSA in the Tampa incident end? Mr Davidson-I would need to check the records on that. Senator FAULKNER-Our time line can be extended through to the end-if you do not mind-to answer that. Mr Davidson-Thank you. If that is useful. CERTAIN MARITIME INCIDENT CMI 1380 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-It may or may not be useful. It is hard to judge at this point. No doubt, the time line itself will suggest a range of other questions. Did AMSA effectively lose its search and rescue function in relation to the suspected illegal entry vessels after Operation Relex was established, would you say? Mr Davidson-`Lose'-I think that is a word I would not use to describe the situation. Senator FAULKNER-Fair enough. Could you describe the situation for me so I can under- stand it? Mr Davidson-I think the situation once Operation Relex was in place meant that there were resources on the water that were available to respond to search and rescue. That is not the normal situation with search and rescue. A normal search and rescue comes via a distress alert and vessels are not in the vicinity specifically to track or be proximate to these vessels. I think some of the search and rescue events were being instigated by either the crew or the people on board. There is evidence that they were taking actions to disable and scuttle their own vessels, and so the whole dynamic is not your usual search and rescue event. In those circumstances, the response to it does not require a coordination centre to manage and coordinate the search and rescue action. Senator FAULKNER-But in relation to the Tampa, you are facilitating communication by Commonwealth officers to the captain of the Tampa, aren't you? Mr Davidson-On the whole, yes. Senator FAULKNER-So do you keep a record of those communications? Mr Davidson-Yes, we do. Senator FAULKNER-Could you please provide that for the benefit of the committee too? Mr Davidson-I will take that on notice. Senator FAULKNER-Thanks very much. When did Mr Moore-Wilton ring you after the Tampa issue blew up? What was your first contact with Mr Max Moore-Wilton? Mr Davidson-I would need to check my records on that. Senator FAULKNER-Basically, didn't he take this out of your hands on the Sunday night? Mr Davidson-I would need to check the records, but I do not even relate to the statement you made. AMSA was involved in the search and rescue up to the point at which we issued the broadcast and advised BASARNAS that it was in their search and rescue area. The Tampa was one of three vessels that responded to the broadcast. When the Tampa reached the scene, the master at that time determined the actions that he was going to take. He boarded the people, dismissed the assistance of the other vessels that had also responded to the broadcast and advised them that they were no longer required. The master of the Tampa notified the Rescue Coordination Centre in Norway that he had picked up the people in distress, and we were CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1381 notified by them and by the other vessel that was in attendance that had been dismissed by the master of the Tampa. At that stage, as far as the search and rescue was concerned, for all intents and purposes the issue was over. Senator FAULKNER-Yes, but you do not recall having any contact with Mr Moore-Wilton around the time of the Tampa? Mr Davidson-I recollect a number of contacts with Mr Moore-Wilton, yes. Senator FAULKNER-Could you outline those contacts for the benefit of the committee, please? Mr Davidson-I would need to check my records. As I say, I have not got the information with me. Senator FAULKNER-Are you sure you did not have one very late at night or early in the morning? You do not recall that one? Mr Davidson-No, I do not recall that one. Senator FAULKNER-If you would take it on notice, please-when you had contact with Mr Moore-Wilton, what the nature of that contact was and what impact it had on AMSA's operation-I would appreciate it. Mr Davidson-To the extent that I have records about that, I will endeavour to provide it. But I am not confident that I have those records. Senator FAULKNER-Thanks very much. What about Ms Philippa Godwin from the department of immigration? Did you have much contact with her at the time? Mr Davidson-I had a number of telephone conversations with her, yes. Senator FAULKNER-Could you share those details with us? Mr Davidson-I remember we had a number of conversations. They were at the time at which the Tampa had responded to the search and rescue and had picked up the rescuees. To the best of my recollection it was probably heading to Indonesia, but had indicated in a conversation with the Rescue Coordination Centre that they were under duress and were being threatened-being told that they had to go to Christmas Island. My recollection is that I had conversations with Ms Godwin at that time in relation to exactly what her understanding of the situation was and what were my understandings about it. Senator FAULKNER-Did you receive any advice from either Mr Moore-Wilton or Ms Godwin about the actions that you ought to take in terms of your responsibilities with AMSA? Mr Davidson-No. Senator FAULKNER-None at all? CERTAIN MARITIME INCIDENT CMI 1382 SENATE-Select Wednesday, 1 May 2002 Mr Davidson-None at all. Senator FAULKNER-These are just about contact with the Tampa? Is it limited to that? Mr Davidson-We had a situation where, to all intents and purposes, at the time the vessel appeared to have been hijacked or was being threatened with hijack and where the actions it was taking were under duress, extreme duress or danger to the crew. In the communications that were taking place with the vessel at the time it was unclear as to the nature of the threats that were being made to the master and the crew and whether the master was able to communicate in an open fashion with anybody at the time. There was grave concern about the safety of the crew. Senator FAULKNER-Sure. Anyway, we might chase this down further if you are able to reconstruct the contact between you-or AMSA more broadly-and Mr Moore-Wilton and Ms Godwin over this period. Again, I think it is probably easier if you take that on notice so we do not delay the committee too much. I would appreciate that very much, indeed. I assume that in AMSA's case-in your organisation's case-there certainly would not have been any contact by ministerial or prime ministerial staff at any point from late August to 10 November 2001? Mr Davidson-No. Senator FAULKNER-You have provided the AMSA involvement in relation to the SIEVs-these are the upper case SIEVs, for want of a better description, or the numbered SIEVs as I have described them. Thank you for that, that is very helpful for the committee. I assume this means that there was no involvement, as far as AMSA was concerned, with SIEV4. Would that be right? Mr Davidson-That is correct-not to our records. We do not have any record of that. Senator FAULKNER-I think we have heard evidence that SIEV4 sent out a distress signal on 7 October. In this case, I assume AMSA did not pick it up. I know it was picked up by HMAS Adelaide, as you probably appreciate also, but I assume that then was not picked up by AMSA. Would that be right? Mr Davidson-That is correct. Our records show no contact. Senator FAULKNER-Thank you. Senator MURPHY-With regard to your introduction, you say that in a search and rescue capacity AMSA had an indirect involvement in three of the 12 interceptions. Did you receive advice about the other nine? Mr Davidson-No we did not. Senator MURPHY-So you received no advice about the other nine? Mr Davidson-That is correct; we received no advice at all. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1383 Senator MURPHY-It might be my misunderstanding but I thought that, from a briefing given to the Public Works Committee, I think, some time back with regard to how the Department of Defence at NORCOM deals with these matters, there was a fairly close working relationship between AMSA, Coastwatch and Defence in monitoring all of these things. So you are not advised if there is an illegal entry vessel heading towards Australia unless something goes wrong; is that what you are saying? Mr Davidson-That is generally the case. We would not be advised unless there were con- cerns for its safety in some fashion, and even then the search and rescue event may be over and done with before we get advised. Senator MURPHY-It may be over and done with before you are advised that there was a problem, but you say that you receive no advice about whether the vessels that are heading towards Australia are in difficulty or not. Mr Davidson-Our records show that the ones we have identified are the only ones we have any record of having been advised about from any source. Senator MURPHY-Would you restate the outline you gave earlier on the time frame for the SIEVX? It started at 2.40 p.m., can you restate the action that was taken thereafter? Mr Davidson-At 2.40 p.m. we received a telephone call from Coastwatch. At 2.45 we received a fax confirming the telephone conversation. At 2.52 AMSA, the RCC, rang Coastwatch to ensure that Defence had been informed. At 3.05 calculations were undertaken on the file in relation to assumptions as to the speed and distance travelled for the vessel. Senator JACINTA COLLINS-I am sorry; would you just repeat that last time frame? Mr Davidson-The RCC calculated the times travelled from the Sunda Strait at four, five and six knots and the number of hours that it would take for a vessel at that speed, being 75, 60 and 50 hours respectively. At 3.16 p.m. a fax was sent to BASARNAS and copied to, as I indicated-and there is a copy provided in the material tended-and that is the end. Senator MURPHY-Is the time on the copy you have tended here the time it was copied? Mr Davidson-No. If you would go to the section that says, `Sent via fax, created 0516, 22nd October 01,' that is UTC time, which is Greenwich Mean Time, which is 3.16. Senator MURPHY-I understand that now; I was just confused with the times. It seems that on other occasions when you have advised BASARNAS you have had some other contact, either by phone or by follow-up fax. If you were advising a search and rescue organisation in another country, I would have thought that you would send a notice or fax that says, `We've been advised that a vessel carrying an unknown number of persons departed the west coast of Java on Friday, 19 October, transiting the Sunda Strait, heading for Christmas Island. The vessel has not yet arrived and concerns have been expressed for its safety.' Did they not contact you to ask for further information? Mr Davidson-Firstly, this would not be a common sort of event, I would say. In this particular case, the concern was raised with us by Coastwatch. The action we took in relation to CERTAIN MARITIME INCIDENT CMI 1384 SENATE-Select Wednesday, 1 May 2002 the information that was then available was that, as best as I can determine, it was concluded that it was appropriate to advise BASARNAS; that action was taken. Senator MURPHY-Why would they not want to know? Even with regard to Coastwatch, I think I understood you to say earlier to Senator Collins that there was some doubt as to whether the vessel even existed. It all seems a bit odd to me, having regard to a briefing I received from the Department of Defence representatives in Darwin. They know the exact movement of every boat that heads in any direction towards Australia. Mr Davidson-I cannot comment on that, Senator; only this particular case. Senator MURPHY-And I think they stated very proudly that that was the case. Mr Davidson-I have no comment to make on that, Senator. CHAIR-We are going to have to move this along a bit because we have some witnesses banked up who have to catch planes out of here at six o'clock tonight. Are there any further questions? Senator JACINTA COLLINS-I want to wind up quickly on the point that Mr Davidson just went back to. Why was it determined that the appropriate course in this case was just to simply send this fax to BASARNAS? Why was it, for instance, not determined that Coastwatch should search as, indeed, it was in that region in the case of the Tampa? We are trying to understand the decision-making process that would occur within AMSA with respect to this type of report. Mr Davidson-I can only say that, on the records that we have, the course of action that was taken and determined to be appropriate in the circumstances was to do this. Whether Coastwatch itself was planning to do searches or whatever is a question you will have to put to Coastwatch. Senator JACINTA COLLINS-But you said to us that it was determined that the appropriate thing to do was to advise BASARNAS. I am asking you the reasons for that determination, and twice now you have not been able to elaborate further on why it was determined. Mr Davidson-I have not had personal discussions with the people who were on duty at the time to get to the issues that were in their minds as to why they decided that that was the appropriate course of action. What I have is- Senator JACINTA COLLINS-Could you take that on notice for me? Mr Davidson-Yes. Senator JACINTA COLLINS-Could you also take on notice for me why no follow- through occurred in relation to there being no response from BASARNAS? And, thirdly, could we have a copy of the fax that Coastwatch sent at 2.52 p.m. confirming the telephone advice? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1385 Mr Davidson-I will take that on notice. CHAIR-I have a few wrap-up questions for you. AMSA covers 53 million square kilometres or one-tenth of the earth's surface. By that you mean you have maritime safety, protection of the marine environment, and aviation and marine search and rescue coordination and overseeing responsibilities for those areas. Mr Davidson-That is our search and rescue region that we have lodged with both the International Civil Aviation Organisation and the International Maritime Organisation. It is the search and rescue responsibility. CHAIR-So, if an incident occurs within the Indonesian search and rescue region, you notify the Indonesians and they, not you, do the work of coordinating the rescue? Mr Davidson-That is correct. CHAIR-But you are the authority that nominates to the Indonesians that something must be done? Mr Davidson-If we are advised of an event and it is in an adjacent search and rescue region or, indeed, in another part of the world, the protocols require us to notify the appropriate authority-that is, the people who are responsible for that search and rescue region-and we do that as a matter of course. CHAIR-Christmas Island, which is an Australian territory, is in the Indonesian search and rescue region, not in the Australian one. Mr Davidson-That is correct. CHAIR-So, for an incident in and around the region of Christmas Island, the search and rescue work would be done by Indonesia? Mr Davidson-That is correct. CHAIR-Is there a search and rescue capability on Christmas Island itself? Mr Davidson-Very limited, I think. CHAIR-If a plane goes down in an Australian area, we have an authority-its name just alludes me for the moment-that investigates what caused that plane to crash and reports. I think it is BASI, the Bureau of Air Safety Investigation. Are you the equivalent authority as far as marine incidents are concerned? Mr Davidson-No, the ATSB, Australian Transport Safety Bureau, is responsible for doing safety investigations and it does marine and aviation investigations. CHAIR-Do you notify them of any incidents to which their attention should be drawn? Is that part of your responsibility? CERTAIN MARITIME INCIDENT CMI 1386 SENATE-Select Wednesday, 1 May 2002 Mr Davidson-Yes, it is, and we do. CHAIR-A boat containing 383 people capsized and about 350 of them drowned. That would be a quite significant incident, would it not? Mr Davidson-It certainly would, yes. CHAIR-It would appear from the map that it occurred in the Indonesian search and rescue region. What do the Indonesians do to investigate incidents like that? Mr Davidson-I have no information in relation to what their investigation functions or powers are. CHAIR-No, but they have an analogous authority that in the event of loss of life in their zone they would, like you do to the Australian mob, identify the Indonesian mob and they would get to and investigate it? Do they have an analogous authority like that? Mr Davidson-One would assume they may have, yes. CHAIR-Do you know for sure whether they do or not? Mr Davidson-No, I do not know for sure. CHAIR-You are responsible for safety in this area, though. You are not responsible for recovering the people from the sea, but you are responsible to keep an overview on the safety- Mr Davidson-No, we are responsible for maritime safety in Australia's jurisdiction in relation to marine events, that is, large vessels that operate within the direct jurisdiction of Australia. We undertake port state control. We inspect ships. We are responsible for coordinating the search and rescue activities. If there is a maritime incident and it is one that requires investigation, or an investigation is undertaken or warranted, we may undertake an investigation with a view to a prosecution-for example, in relation to a pollution event or in relation to a collision between two vessels where there has been failure to keep a proper lookout and for which there are regulations that manage those events-but search and rescue, and certainly within the Indonesian search and rescue region, is a matter that would go to the Indonesians. CHAIR-But you have a coordinating role to notify the Indonesians in overview as to whether there is an incident occurring in their area. Mr Davidson-No. The situation is that if a party becomes aware of a search and rescue incident which occurs within somebody else's region then it is their responsibility to notify the responsible agency. It is in that context that, if Australia becomes aware of a search and rescue event which is taking place in the Indonesian search and rescue region, we notify BASARNAS. That is the protocol. We have no overview responsibility whatsoever. It is just that in certain circumstances search and rescue incidents have come to our notice and we have no knowledge of whether they have been notified to BASARNAS. In those circumstances, we automatically notify BASARNAS. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1387 Senator MURPHY-And yet you do not seek a response from them to see whether they have been notified. CHAIR-If a boat was going down off Christmas Island, you would ask the Indonesians to rescue it; you would not alert Australian rescuers to go and rescue it. Mr Davidson-We would notify BASARNAS, and if there were resources at Christmas Island that could respond promptly to that event we would take all actions necessary to effect a proper rescue. The responsibility on all search and rescue agencies around the world is to respond comprehensively and completely to every search and rescue event, wherever they may be. In the event that the knowledge is held by one agency first, they must continue to prosecute the search and rescue effort until such time as they can hand it off to the agency that is better placed to take it over and complete the exercise. CHAIR-Sticking with this example, this would be in the Indonesian zone but your responsibility would be to notify people in the Australian zone to go to the rescue of that event and hand it over to the Indonesians if they were better placed. Mr Davidson-Yes. CHAIR-Can you take on notice for me whether there is an analogous body in Indonesia that does investigate loss of life or major incidents of this nature? It would seem to me that it is logical that they would have one, but if you do not know I am not sure whom I ask to find out other than the Indonesians. Can you take that on notice for me? Mr Davidson-We can take that on notice and inquire. CHAIR-Has any effort been made to pinpoint where SIEVX might have gone down? Mr Davidson-No, not by AMSA. Only through my knowledge of AMSA can I have such certainty, but I know of no efforts to pinpoint the location by anybody in particular. I did hear the evidence given by Mr Kevin where he has attempted to pinpoint it, but his are the only efforts I am aware of. CHAIR-Those efforts are relating to trying to calculate steaming time from points of departure, but that is not a matter of drawing a rhumb line between the point of departure and where the suspected incident occurred because there are other calculations in marine navigation, aren't there? Mr Davidson-I would hazard that you are correct. Senator FAULKNER-Have you got any reason at all, Mr Davidson, to be concerned that there was any direct or indirect Australian involvement, by any means, that may have contrib- uted to the sinking of that vessel? Have you got any concerns in that area at all? Mr Davidson-Categorically, none. CERTAIN MARITIME INCIDENT CMI 1388 SENATE-Select Wednesday, 1 May 2002 CHAIR-I think we are done, Mr Davidson. There is a number of matters that you have taken on notice. We are eager to try to complete this inquiry in a reasonable time, so we would be grateful if you could get back to us reasonably quickly with comprehensive answers so we are not in a situation of wanting to examine you further based on the answers that are given. Senator FAULKNER-We do appreciate your taking those on notice, Mr Davidson. I think at the end of the day it probably will save us a bit of time. If you could take the approach that the chairman has outlined, I would certainly appreciate it and I am sure all of the committee members would. Thank you for that in advance. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1389 [4.59 p.m.] ENSOR, Mr James, Director, Public Policy, Oxfam Community Aid Abroad REID, Mr Malcolm, Manager, Advocacy, Oxfam Community Aid Abroad CHAIR-Welcome, Mr Reid and Mr Ensor. Do you have an opening statement? Mr Ensor-Yes, we have a brief opening statement. CHAIR-Please proceed. Mr Ensor-Oxfam Community Aid Abroad is a development agency working in more than 30 countries around the world, including many countries in the Pacific; in particular, Papua New Guinea, the Solomon Islands, Bougainville, East Timor and Vanuatu. We are a member of Oxfam International, a global network of development agencies, and also of the Australian Council for Overseas Aid. Concerns coming to us from partner organisations with which we have relationships within the Pacific late last year led to us researching and publishing a report titled Adrift in the Pacific in February 2002. The report, we believe, asks a number of important questions about the Pacific solution which are being raised both in the Pacific and increasingly here in Australia. We acknowledge that the issue of asylum seekers is an extremely complex humanitarian and political issue which demands attention and financial commitment from Australia. We applaud the Australian government's financial commitment and recent political commitment to addressing the issue. There are, however, material questions that we think are arising in the Pacific regarding the current policy. We believe those questions warrant addressing by both this committee and the Australian government. We believe these questions fall into three broad categories. The first category surrounds the impact of the Pacific solution on the Australian aid program. Arrangements for housing of asylum seekers in Nauru and Papua New Guinea have been accompanied by financial commitments from the Australian government, notably $30 million in development assistance for Nauru. Whilst we welcome increased development assistance to Nauru per se, some key questions around that assistance remain unanswered. Firstly, Nauru is budgeted to receive $3.4 million in aid in 2001-02 through the Australian government's aid program administered by AusAID. A further $16.4 million was committed via AusAID during the financial year following the government's mid-year financial review. This combined funding-that is, the $3.4 million and the further $16.4 million-is insufficient to cover the $30 million commitment made to Nauru, leaving a potential $10.2 million shortfall. The question that is being asked in this instance is: where will those funds be drawn from? The concern in the Pacific and from a number of development agencies is in particular whether those funds will be drawn from other countries as part of Australia's bilateral aid program or regional programs. CERTAIN MARITIME INCIDENT CMI 1390 SENATE-Select Wednesday, 1 May 2002 The relationship between the Pacific solution and the aid program is creating a lack of clarity, particularly in some public statements. On 24 September, parliament was told by Senator Robert Hill that assistance was being managed by AusAID. He stated that the aid is managed and administered by AusAID and that AusAID is responsible for the procurement of all goods and services procured as part of the aid package. However, on radio on 5 February 2002, Chris Gallus stated that the formal aid program was totally separate from the Pacific solution. The two were said to be totally separate and the asylum seeker program funds were said to not impact on the aid program. The other aspect regarding the relationship between the funds generated through the Pacific solution and the formal aid program concerns potential distortions of the aid program. In 2001-02 Nauru is to receive more aid than it received in the preceding eight financial years. Questions are being asked. Will that arrangement continue into future financial years? Is that a one-off payment of $30 million in aid? If our relationship with Nauru over housing asy- lum seekers is continued into the future, what incentives through aid or other mechanisms would be provided to support that? The fourth area of concern is the consistency of funding to Nauru from AusAID, with the stated intentions of Australia's aid program in the Pacific, which are to focus primarily on poverty reduction, good governance and regional coordination. In particular, there is the provision of $10 million for fuel supplies and repairs for generating equipment. We cannot see where that fits within those stated priorities. The second broad area of questions relates to some constitutional and human rights issues associated with the current arrangements. These are, firstly, whether it is appropriate for asylum seekers to be detained in countries which have not signed or ratified the 1951 refugee convention, to which Nauru is not a signatory. Papua New Guinea, although a signatory, is a signatory with significant caveats-explicitly, not accepting its obligations under the convention in a number of key areas, including the rights of refugees to housing, employment and education. The second area of questions concerns whether it is appropriate to export mandatory detention to other states, given concerns that have been expressed about this practice. Whilst Oxfam Community Aid Abroad agrees with the need for detention of asylum seekers for an initial period for the purposes of security, health and identity checks, the question arises as to whether it is appropriate capacity building for Australia to export longer-term mandatory detention to other states. We note that the UNHCR describes the practice of mandatory detention as inherently undesirable, especially for vulnerable groups. There are questions being raised as to the legality of mandatory detention in Nauru, and specifically in relation to section 5 of the Nauruan constitution, which states that no person shall be deprived of personal liberty, except in a range of circumstances which do not include asylum seekers, and that people are entitled to legal representation in their place of detention. There are questions around what will happen to asylum seekers beyond the agreed periods of detention expiring in May 2002 and October 2002 in Nauru and Papua New Guinea respectively. The International Organisation for Migration and the UNHCR have both stated that they will not be involved in removing asylum seekers from those places against their will. The third area of questions that are arising concern sustainability and the impact of the policy in Pacific communities. The report that we produced in February documents concern at the policy within Nauru and, more broadly, regionally. Within Nauru the concern relates primarily CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1391 to the impact of the 10 per cent increase in population associated with the asylum seekers detained there and the impact that it is having on service provision, especially in the health and water sectors. There is concern documented in our report around the sacking of the former foreign minister in Papua New Guinea and other suggestions being made that the policy will stretch an already delicate political fabric in many Pacific nations. Our report outlines concerns at Australia's reputation in the region associated with the policy, and it documents concern from government leaders, church leaders and regional forums that the policy is an imposition of Australian domestic political concerns over appropriate foreign policy for the region. We make a number of recommendations both in our report and in our submission to this committee. Those recommendations are an end to the mandatory detention of asylum seekers in Pacific nations; that the Australian government provide support for Pacific island governments to sign and ratify the 1951 Convention relating to the Status of Refugees and the associated 1967 Protocol relating to the Status of Refugees; increased support to improve the situation of refugees and internally displaced people in Pacific islands and Pacific states, particularly West Papua, Bougainville and the Solomon Islands; potential special programs targeted at peace- building in areas of conflict, particularly in countries that are drivers of the current refugee problem such as Pakistan and Iran; detention of asylum seekers only for short periods to allow health, security and identity checks followed by their release into the community with adequate funding for services such as English language training, employment assistance and trauma counselling; and, finally, a review of resettlement policies with a recommendation that Australia increase the number of refugees accepted through our refugee program. CHAIR-Thank you, Mr Ensor. Mr Reid, do you have any supplementary remarks. Mr Reid-No. CHAIR-Mr Ensor, could you make that written statement available to one of the assistants to this inquiry so that we can each have a copy in front of us. It is about 12 minutes past five and you have to be out of here by six o'clock. That means that we have roughly 50 minutes for questioning, if we are to let you go. Senator BRANDIS-Mr Ensor, Oxfam's primary work is as an aid agency; is that right? Mr Ensor-Yes, that is correct. Senator BRANDIS-In delivering aid, the Oxfam Australian operation primarily applies through funding windows with AusAID; is that so? Mr Ensor-Not primarily. We have about 24 different funding sources. AusAID is one of the six largest of those 24. Senator BRANDIS-Can you tell me, either precisely or approximately, how many aid projects Oxfam Australia currently administers in the Third World. Mr Ensor-I could only tell you very approximately, and I would be happy to go away and research and give you some more accurate figures. I think it is around 300 projects per annum. CERTAIN MARITIME INCIDENT CMI 1392 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-May I take it that you, or perhaps you, Mr Reid, are involved in the de- cision making as to which of those projects you will fund and administer? Mr Ensor-No, not directly. Senator BRANDIS-You are familiar with the process by which those decisions are arrived at? Mr Ensor-Yes. Senator BRANDIS-May I take it that, although not an exclusive criterion, one of the primary criteria you would apply in deciding which projects to fund would be need? Mr Ensor-Yes. Senator BRANDIS-I take it that an element of your aid portfolio is emergency relief? Mr Ensor-Yes, correct. Senator BRANDIS-Obviously, it almost goes without saying that the principal criterion to which you would have regard in deciding to fund emergency relief programs is urgency? Mr Ensor-Humanitarian need would be the main criterion. Senator BRANDIS-And is that generally the case with all of your decisions: that the extremity, if I can use that word, is the principal criterion according to which you make your decisions to offer funding? Mr Ensor-No, it is not the single major criterion. We work as a confederation of 11 agencies around the globe, and the impact of that is that it enables us to develop economies of scale and efficiencies in focusing in particular sectors. Senator BRANDIS-So you can play to your strengths, as it were, where you have a particular capability? Mr Ensor-Exactly. Senator BRANDIS-And your possession of that capability is itself an independent criterion other than the need or the urgency of potential funding recipients? Mr Ensor-They link to each other, but that is essentially correct. To give an example, in southern Africa our development interventions are now primarily in the area of HIV-AIDS prevention across five or six countries. In the Solomon Islands we manage a large peace- building program that is funded by the British government through DFAT. We have a sectoral focus on natural resource management in East Asia. Senator BRANDIS-Would I be right in thinking that, as a general principle, all other things being equal-those other things being capability, your particular expertise and so on-if faced CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1393 with a choice between funding one of two programs, the ultimate criterion you would apply would be to confirm which was the needier of those potential beneficiaries of your assistance? Mr Ensor-It would be a significant factor, yes. Senator BRANDIS-The reason I am concerned to ask these questions-and it does not relate directly to your evidence on the Pacific solution-is that I was rather struck by some evidence that we received from the Department of Immigration and Multicultural and Indigenous Affairs earlier in these hearings. Among other things, we were told that the world's refugee population, as assessed by the department, was somewhat in excess of 20 million. Does that accord with your understanding? Mr Ensor-Yes. Senator BRANDIS-We were told that most of those people live in circumstances of abject destitution in refugee camps in the Third World. Does that accord with your experience? Mr Ensor-Yes. Senator BRANDIS-We were told that the length of time most of those people have to live in those refugee camps is a period of years, not months. Does that accord with your experience? Mr Ensor-Yes. Senator BRANDIS-The circumstances in which they live in those refugee camps-these are generalisations, of course-were described by Mr Farmer, the head of our Department of Immigration and Multicultural and Indigenous Affairs, as at best basic and at worst most exiguous. Does that accord with your experience? Mr Ensor-Yes. Senator BRANDIS-We were told that about 80 per cent of the people in those refugee camps are women and children. Does that accord with your experience? Mr Ensor-I do not have any direct experience consistent with that. Senator BRANDIS-That is also a figure quoted in a most illuminating article by Eileen Pittaway and Linda Bartolomei titled `Refugees, race and agenda: the multiple discrimination against refugee women' which appears in volume 21, the current edition of Dialogue. Certain references are given to support the figure that 80 per cent of the world's refugees are women and children. Mr Ensor-I would have no reason to question that. My direct experience might not be that, but that is fine. Senator BRANDIS-The evidence we heard from Mr Farmer was that people in the refugee camps are provided, at best, with elementary and inadequate health care. Does that accord with your experience? CERTAIN MARITIME INCIDENT CMI 1394 SENATE-Select Wednesday, 1 May 2002 Mr Ensor-I guess it would be a fair generalisation. I think there are variations between situations. Senator BRANDIS-Quite. We were told that the standard of nutrition which they can expect is, at best, at subsistence levels. Do you agree? Mr Ensor-Yes. Senator BRANDIS-In a population of 20 million, one would assume that tens or hundreds of thousands of refugees are at immediate medical risk. Would that accord with your experience? Mr Ensor-Again, our experience varies between situations. It could be a generalisation, yes. Senator BRANDIS-But would you expect to find a substantial proportion of the world's refugee population-20 million people-at any given time to be at immediate medical risk? Mr Ensor-Yes, I think that would be a reasonable conclusion. Senator BRANDIS-But the educational needs of the children in these camps are barely catered for, if at all. Does that accord with your experience? Mr Ensor-Again, variations. Senator BRANDIS-Sure, I understand these are generalisations. But is that generally so? Mr Ensor-It could be a general conclusion. Senator BRANDIS-And these people are destitute. They have no financial resources whatsoever. Is that generally true of the 20 million people in the refugee camps? Mr Ensor-It could again be a generalisation. Some refugees that we work with are certainly in that position and others are not. Senator BRANDIS-I do not want to be political about this. I just want to make the point and invite your comment on it. We also have evidence from the department's intelligence sources in relation to the occupants, the so-called asylum seekers on the vessel that has been described as SIEV4. That tells us, among other things, that they each paid on average a fee of between $2,500 and $7,000 to people smugglers for their passage. But Mr Farmer's evidence was that, in about 90 per cent of cases, they flew to South-East Asia or the ports of embarkation of the illegal entry vessels by commercial airliners from West Asia. The average period from the point at which they entered the people-smuggling pipeline-to use his expression-to when they sought to embark on vessels to Australia was a period of some weeks up to six months but not longer than six months. The point I am at pains to make to you-and I invite your response-is this: I cannot for the life of me see how, from the point of view of prioritising Australia's humanitarian programs, CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1395 including its refugee program and its humanitarian access program, people who have not been in refugee camps for years and who have access to thousands of dollars-and that is not a lot of money but is more money than the people in the refugee camps have-should be prioritised. These people have the money to pay people smugglers and they have the capability to fly by commercial airliners across the world to a point of embarkation and who are-as the DIMIA report revealed-while waiting to embark, accommodated in apartments and hotels in Indonesia at perhaps a fairly basic standard. I cannot for the life of me see how, in terms of humanitarian priorities, those people should be prioritised above the destitute, exiguous and at risk people in the refugee camps. Can you? Mr Ensor-I think the issue is to do with assessing the refugee status of people who are claiming that status, irrespective of point of origin. There are a range of circumstances that people are in. A number of reports that we have had regarding asylum seekers coming from Iraq and Afghanistan in particular indicate that people have either flown or travelled over land. In order to do so they have sold all their disposable assets-land, businesses et cetera-to accumulate the funds to do so. In other circumstances, we are dealing with refugees and internally displaced peoples around the world who are clearly not in that situation. I think it is difficult to make a judgment on prioritisation based on the financial capacity to the exclusion of the other factors that need to be considered according to the refugee convention. Senator BRANDIS-I cannot help the fact that I always used to be very moved during the more than 10 years that I was a director of another one of our aid agencies, UNICEF Australia. For more than 10 years, I sat on the board of UNICEF and I was moved by the absolute desperation of so many of the people that UNICEF used to fund and, no doubt, that Oxfam funds. I am more than a little cynical about the humanitarian claims made by some on behalf of people who are not destitute, who are not starving and who are not at immediate medical risk to be prioritised in the intake into Australia's humanitarian programs above people who are. Mr Ensor-There are other factors, though, in the convention that deal with, as I understand it, people's fear of persecution associated with political regimes and political process- Senator BRANDIS-But I think, ex hypothesi, because the fear of persecution is part of the definition of refugee status-is it not? Mr Ensor-Yes. Senator BRANDIS-Ex hypothesi, all the 20-plus million refugees live in fear of persecution so-given that there are that many people claiming that status but given that the resources available from recipient countries have nowhere near the capacity to take them all- within that large class of people with a justified fear of persecution, there must be other criteria applied. I know these are hard choices, but my point to you, as a matter of policy, as a matter of experience and, indeed, as a matter of philosophy, is that surely, in prioritising for a nation just as for an aid agency like yours, need has to be the ultimate test. Mr Ensor-Need is a significant factor, but I would not agree with the conclusion that one would prioritise only on the basis of the factors that you have outlined, to the exclusion of is- sues associated with fear of persecution. There are instances in many countries- CERTAIN MARITIME INCIDENT CMI 1396 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-I did not say it was exclusive, and I think we have established that these are all people who, ex hypothesi, have a justified or a well-founded fear of persecution. But surely you would agree with me that need, among these people, is the most important criterion. Mr Ensor-I would say it is a significant factor; I would not say it is the most important. Senator BRANDIS-Can you think of a more important one? Mr Ensor-I think, generally, the spirit of the convention reflects the importance of people being able to demonstrate adequately that fear of persecution. The fear of persecution can apply in circumstances where there is wide disparity in people's material wellbeing-from impoverished West Papuans on the PNG side of that particular border through to those fleeing Afghanistan, who may well have had, essentially, middle-class backgrounds, in response to what they claim to be a fear of persecution from the Taliban. Both, in our view, are entirely legitimate grounds for people to seek refugee status. Senator BRANDIS-Mr Ensor, I will finish on this: I am not for a moment suggesting that middle-class people fleeing a country in which they are persecuted might not be just as liable to have a bona fide, well-founded fear of persecution as people who are lower down the economic scale of advantage. My point is simply this: if you are dealing with two people who both have a well-founded fear of persecution-one is a middle-class person with some assets at least, perhaps relatively few, who is not destitute, who is not starving, who is not in exiguous circumstances, and one who is-surely of those two people, both of whom have a justified fear of persecution, you take the neediest. The humanitarian considerations plainly dictate that. Do you agree with that as a principle? Mr Ensor-I understand where you are coming from with that view. My opinion on this is that you need to deal with both categories. Senator BRANDIS-But if you are forced to choose? It is about prioritising-you have 20 million refugees in the world and nine countries that take them. The number of places is less than one-hundredth of the demand for those places in the world. You may well be right-I may well agree with you-that we should take in more refugees. But when it comes to the point of prioritising between two claimants, both with a well-founded fear of persecution, when you are faced with the agony of choice surely you have to take the neediest and the most immediately at risk? Mr Ensor-I think that in terms of assessing-if we are talking about assessment: accepting asylum seekers and assessing their refugee status-I would still maintain that, under the convention, states are expected to assess both categories. Senator BRANDIS-Thank you. Senator MASON-I have questions on mandatory detention and other issues, but we are not going to have the time to do that. Perhaps I can just ask a supplementary question following on from Senator Brandis. Senator Brandis touched on this. In your submission you suggest that, as a matter of policy, we should lift our refugee intake. Like Senator Brandis I agree that maybe that is a good idea. But forgetting the principle for a second and looking at the politics of it, you CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1397 must understand that it is very difficult to sell that policy where many people in this country believe that people are jumping the queue. It does not matter in what context this idea would operate-in Immigration it operates in terms of refugees and elsewhere. I have looked at your submission and I understand it. But not only the principle that Senator Brandis outlined but also the politics of this is such that, increasingly, it is difficult to convince the public that we should do that. What do you say to that? Mr Ensor-I think your point is legitimate. Mr Reid-We understand that it is difficult in this current environment necessarily to sell an increase in the refugee humanitarian intake program. However, there are a couple of points in that. We have pointed out in our submission that we would like to see, following on from what Senator Brandis pointed out, increased Australian aid directed at the conditions of people in the refugee camps to really make a difference there. Therefore, in that context, we would ask that the government strongly consider an increase in our overseas aid program. At the moment the percentage of GNP of the aid program has dropped to 0.26 per cent. Really, that does not reflect community support. Surveys that have been taken consistently show that there is an 85 per cent support for the aid program. My point is that there is consistent community support for tackling the problem at source and for dealing with some of the humanitarian issues that Senator Brandis outlined and at the same time allowing Australia to live up to its obligations under the refugee convention and process the applications of those people who arrive in Australia for refugee status. Senator MASON-Putting it really bluntly, the issue still seems to be that, if you have money and can in effect put yourself in the face of Australian refugee authorities, you then have a markedly higher chance of being accepted as a refugee in this country than someone sitting in a refugee camp in Northern Kenya. Yet, as Senator Brandis pointed out, the conditions of those camps and those people in Northern Kenya are far worse, given that there is a well-founded fear of persecution operating in both cases. I have not heard any arguments in the course of the 10 days of this inquiry that overcomes that. In effect, we are dealing in many cases with people who, in a sense, have an advantage and have been able to put themselves in a position where they gain priority. I do not know how to sell that to the Australian people. Mr Ensor-Selling it, as you put it, to the Australian people is a key challenge. It is a challenge for agencies such as us and for the Australian government. One of the key things that we have found that tends to work in selling these sorts of issues to the community is being in a position to explain to people at a personal level the personal stories of these individuals. People relate to people and not necessarily policy or higher processes. I think there is a strong case for government agencies over the next period of time to devote resources to do precisely that. A broad based community education program is not about policy or $20 million for this or that, but it explains to people in a very straightforward manner what refugees are and it tells personal stories of individual families who have gone through these experiences in a variety of circumstances-people who have obtained refugee status from situations that you described in Northern Kenya and perhaps at the Thai-Burma border or in Afghanistan-so that the commu- nity begins to get a sense of what a refugee is, what the drivers are of the problem and what ex- periences people have had. That then begins to potentially break down some of those barriers. I CERTAIN MARITIME INCIDENT CMI 1398 SENATE-Select Wednesday, 1 May 2002 cannot overemphasise the importance of personal stories. You see it in the way that develop- ment agencies market their work. Senator BRANDIS-Do you think it is fair that refugees who have a bit of money can buy their way to the head of the queue? Mr Ensor-Like a test whether they are buying their way to the head of the queue? Senator BRANDIS-They are using their money by paying it to people smugglers to get ahead of other refugees who do not have any money in much worse circumstances. Is that fair? Mr Ensor-The question is: are they getting ahead of other refugees? As you said, there are people sitting in refugee camps around the world who have been processed- Senator BRANDIS-For years, according to our evidence. Mr Ensor-are in the process of being processed or have been determined to be refugees. They are still sitting there because there is no country of acceptance. This is the circumstance that many of the asylum seekers in Nauru, Papua New Guinea and Australia at the moment will also face. The question is: are they getting ahead of the queue? Is there a formal queue in that sense? Senator JACINTA COLLINS-I will take you slightly away from that area. It might be of comfort to you to know that Senator Brandis went down the same path with the immigration department and did not get much more satisfaction from them either on some of these questions. Looking at your comments about the Pacific solution, would you have regarded the policy change that occurred in the months before the last federal election as a significant change in Australia's policy on how to deal with people arriving on our shores in boats? Mr Ensor-Certainly, yes. Senator JACINTA COLLINS-A very significant change? Mr Ensor-Yes. Senator JACINTA COLLINS-Was your agency consulted? Mr Ensor-No. Senator JACINTA COLLINS-Are you aware of consultation that occurred in relation to this significant shift in policy? Mr Ensor-No, we are not. Senator JACINTA COLLINS-So in one sense, the earlier talk about selling policy to the Australian people seems a bit banal when we had such a significant policy change with no consultation at all before the last federal election, doesn't it? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1399 Mr Ensor-Certainly there was not any degree of consultation that we are aware of. Senator JACINTA COLLINS-Within that context, I think it is appropriate that we take the opportunity to allow you to elaborate on some of your comments in your submission about the regional impact of the Pacific solution as a new policy and its impact on your operations within the Pacific. You have referred to the potential adverse political and social impacts on the Pacific region. Are you able to give us any examples of your concerns? Mr Ensor-There are a number of examples that have been drawn to our attention by organisations we have relationships with in the Pacific. I will give you some specifics. The Secretary-General of the Pacific Islands Forum has expressed serious reservations about the impact of policy. In October last year Noel Levi, the Secretary-General of that forum, said: The emerging refugees market in the region where Forum Island Countries lease out their territories for quarantine and processing services carries unknown risks ... Such a substantial population influx places extreme pressure on our already very limited resources, exposing our small and vulnerable economies to further social and economic problems which we can ill afford. There was strong resistance and concern expressed by the Prime Minister of Vanuatu in relation to the policy. In making that statement and rejecting any approach for that country to receive refugees, he stated that land was a precious commodity in the Pacific and, unlike in Australia, there was very little of it available to set aside for refugees. The situation in a number of countries is that the lack of availability of land, conflict over land, creates political and social tension. There have been concerns expressed in Nauru over the impact of the establishment of the detention facility in terms of the provision of basic services for people in that country. In particular, the Presidential Counsel and the Senior Medical Officer in Nauru received letters of suspension without pay from their positions as public servants after they raised concerns in that regard. A number of interviews that have been done in Nauru point to concern particularly over access to health services and water. Water is a particularly critical resource in Nauru. Perceptions in Nauru are that availability of water is prioritised for residents of the Topside camp above Nauru citizens. We outline in our report some of concerns and tension that that has created. The Pacific Conference of Churches and the Catholic Bishops Conference in October last year urged Pacific governments to carefully considered the longer term impacts of accepting these sorts of arrangements for housing of asylum seekers. They made the point that they believed in many instances that has adverse impacts on the communal lives of Pacific communities and that the priority for many Pacific island states needs to remain on finding solutions to overcome political, social and economic problems and tensions at home. They highlighted those as particular priorities. So those are some examples of some of the tensions that are being created. Senator JACINTA COLLINS-Do you have perhaps more up-to-date information for us, since the writing of your submission, about the plans once the asylum seekers on Nauru and Manus Island are moved on? Mr Ensor-No, we do not. That in itself has been raised as a question to us by partner organisations in the Pacific-that is, the longevity of the arrangements. People understand that CERTAIN MARITIME INCIDENT CMI 1400 SENATE-Select Wednesday, 1 May 2002 the arrangements are to be finalised in May and October respectively but are unclear as to what happens at those points in time, particularly given the UNHCR and the IOM have indicated that they will not be involved in removing asylum seekers who have had their applications for refugee status refused and who themselves have refused to leave the camps. So the issue then becomes how we move those people out of the camps in those situations given that the multilateral organisations with responsibility for those areas have indicated their unwillingness to do that. Senator JACINTA COLLINS-That would be a fairly interesting legal question too, would it not? I was also interested in the facilities that have been established in these places and the longer-term aid implications for the resources that have been put in at Nauru and Manus Island. Have there been any commitments or ongoing commitments about the use of those resources? Mr Ensor-The information that we documented in our report in February is that commitments have been formally made for this current financial year. But in media interviews last year the Prime Minister and the foreign minister left open the question as to whether the arrangements could continue in the future, and we documented that in our report. The specifics of that, to our knowledge, have not been publicly released. Senator JACINTA COLLINS-This is one of my questions. For instance, housing has been established for the asylum seekers; is that housing to remain or will it go with the asylum seekers? Mr Ensor-I think that is a legitimate question. Senator JACINTA COLLINS-We do not know the answer, is that the point? Mr Ensor-We do not have the answer to that. Senator JACINTA COLLINS-I could probably sit here all day asking legitimate questions and not getting answers. I am sure you appreciate our predicament that this Pacific solution policy has placed these people and significant amounts of Australian funding outside of the reach of our accountability mechanisms. This is one of the issues that we are struggling with, even in whether we can speak directly to some of these asylum seekers, and perhaps one of the most fundamental flaws in the Pacific solution policy-full-stop. Would you care to comment on that issue? Mr Ensor-As a policy, it raises questions around transparency and accountability that we have documented in our submission and also in our report. They are concerns that have been reflected in a number of the comments that our report in February obtained from a number of sources within the Pacific-questions around in particular these funds and whether they are be- ing applied in a manner that is an appropriate way to apply taxpayer funds through the aid pro- gram. Our aid program in the Pacific has clearly stated objectives and strategies around poverty reduction, particularly basic education, primary health care, good governance and building re- gional institutions. I commented earlier on the apparent inconsistency between the allocation of $10 million for fuel supplies with those stated aims of the aid program. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1401 Senator JACINTA COLLINS-Some of the consequences of the Pacific solution policy have actually worked contrary to your objectives with the aid dollars, if you are talking about good governance and some of these other issues. Mr Reid-Coming back to the impact on the local communities to which we referred to earlier, in that context it is important that local community groups and individuals are sensing that the money being spent is not directed according to the priorities of the aid program and they are legitimately concerned about the waste or misdirection of resources that that kind of spending implies. It would be a matter of concern that those social tensions in the community may be increased because of the way the aid program, according to the perception of local people, is being used to further domestic political concerns rather than the publicly stated aims of the aid program. Senator JACINTA COLLINS-You probably look forward to the day as much as I do when we can compare how much it would have cost to house these people in our current facilities and extend them as necessary to what we spend in the Pacific solution. Mr Reid-Yes. I think there is a recognition, particularly in the community-and there is a conference in Fiji this weekend which will address these issues-that it is not so much that money has been spent on the refugee crisis or the refugee issue but that it has been misdirected and misallocated in an unsustainable manner according to our community links. Senator JACINTA COLLINS-In fact in a wasteful manner. Mr Reid-Yes, that has been expressed. Senator FAULKNER-Have you come across any international criticism of Australia, Australia's approach or the Australian government as a result of the Pacific solution? If you have, what was its nature? Mr Ensor-Certainly there was considerable criticism emanating from within the Pacific. Some of the statements that we have documented in our report indicate concern over the prioritisation of this issue over issues in the Pacific per se. The examples that we have used in our report include Australia's absence at ministerial level from the signing of the Bougainville peace treaty and the perception of the symbolism of lifting sanctions against Fiji just a few days before it was announced that Fiji was considering the proposal to host asylum seekers. Our report documents concern at the absence of Australia's presence at ministerial level to attend the signing of the Bougainville peace treaty. Senator FERGUSON-You know why that was, don't you? It happened to be on 31 August-the time of the Tampa crisis. Mr Ensor-Yes. Senator FERGUSON-I am not offended, but I went up and signed it on behalf of the minister. CERTAIN MARITIME INCIDENT CMI 1402 SENATE-Select Wednesday, 1 May 2002 Mr Ensor-What we have documented in our report is concern from partners that we worked with in Bougainville, saying that the minister was scheduled to attend the process. We thought this was a significant issue in the Pacific. Senator FERGUSON-It was. If it had not been for the issues that were boiling at home, he would have been there. It was only at two hours notice that I had to go up there and sign it. Mr Ensor-Yes. Senator MASON-You did a very good job, Senator Ferguson. Mr Ensor-These are perceptions that are coming to us through our partners in the Pacific. Similarly, there is concern around our lack of presence at the Pacific Islands Forum and there is the perception that our level of engagement with the Pacific is somewhat lower than it should be, given the geopolitical proximity of the Pacific to Australia and the importance of Australia to that region. These are some of the things that have been noted. With regard to the more specific concerns around the policy, I have outlined the comments of the Prime Minister of Vanuatu. The President of Fiji opposed taking any asylum seekers on the basis that he believed the country had enough problems to deal with. The coalition of church groups in Fiji-the NGO coalition-described the policy as reactionary and smacking of political expediency. In Nauru, Independent MP Anthony Audoa said he believed that the policy was not right. He said that, when you try to dangle a carrot in front of a country that is desperate with its economy, it will accept that carrot because it is desperate. In Papua New Guinea, there has been extensive criticism on the record from former Prime Minister Sir Michael Somare saying that the policy is an infringement of Papua New Guinea sovereignty. After his sacking, the foreign minister, Pundari, criticised the arrangements as being an election issue for Australia and expressed dissatisfaction over the extent to which the domestic issue in Australia was impacting Papua New Guinea. They are some of the examples of some of the criticisms coming from a range of sources. Senator FAULKNER-Do you think that the government has been honest in its dealings with Nauru and PNG in relation to the Pacific solution, when you look at issues such as how long asylum seekers will be detained in their countries and whether any asylum seekers will be permanently resettled there and the like? Mr Ensor-The perception that we have documented is at best a lack of clarity in the Pacific about the arrangements. Political leaders, in both Papua New Guinea and Nauru have been on the record, as we have documented, saying that their understanding of the arrangements is that after the expiry dates in May and October respectively there will not be asylum seekers or refu- gees in their respective countries. The details of the memorandum of understanding leave open the option, as we read it, for ongoing extensions of those periods. Senator FAULKNER-Is it fair to say that, at best, a lack of clarity and, at worst, downright dishonesty? Senator MASON-Are you sure you are not leading the witness? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1403 Senator BRANDIS-Mr Ensor, are you in a position to answer that question? Do you know what the dealings are between the Australian government and the Nauruan government? Mr Ensor-We will find out. Senator BRANDIS-Don't be impelled to answer a question if you do not know the answer. Senator FERGUSON-Especially a leading question by Senator Faulkner. CHAIR-I do not think Senator Faulkner would be the first person to try to lead a witness. Senator BRANDIS-If he knows the answer, he can answer it. But he should not feel impelled by Senator Faulkner's forceful presentation to give evidence, when he has sworn an oath to give honest evidence, on something of which he has no knowledge. CHAIR-I am sure Mr Ensor can speak for himself. We are about to go to dinner, so please proceed. Mr Ensor-The text in the memorandum of understanding clearly leaves open the option of these arrangements continuing. As we have documented in our report, both the Prime Minister and the foreign minister have indicated that it is at least a possibility that those arrangements will be ongoing beyond those periods of time, and leaders in Papua New Guinea and Nauru, as documented in our report, have been on the public record saying that their expectation is that, as of those dates, there will not be asylum seeker detention facilities occupied by people in their respective states, nor will there be accepted refugees in their states. So there are mixed messages on that issue. Senator FAULKNER-Did you see the ABC's Foreign Correspondent program that aired on 17 April? It raised some very serious questions over the illegality and unconstitutionality of the detention of asylum seekers in PNG. I wondered whether you had seen it and whether you have had any feedback about this issue or made any assessment as to the legality and constitutionality of the Pacific solution in PNG and Nauru and, if so, what those legal ramifications were and who was expressing the concerns? Mr Reid-As an organisation we have not had the capacity to undertake that research. We understand that the case is going ahead on the basis that there is a legitimate issue to be decided about the constitutionality of the Pacific solution as it operates in Papua New Guinea but, be- yond that, at this stage we cannot add to that. Mr Ensor-The basis of the concern in relation to Nauru is to do with article 5 of their constitution. Article 5(1) states: 5. (1) No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases. And the cases listed there cover issues such as the spread of disease and criminal offences, but they do not cover asylum seeker situations. Article 5(2) of that same constitution guarantees the right to legal representation for people in situations where they are detained. That right is: ... to consult in the place in which he is detained a legal representative of his own choice. CERTAIN MARITIME INCIDENT CMI 1404 SENATE-Select Wednesday, 1 May 2002 So the questions being asked there are to do with under what law are asylum seekers being held in a compound in Nauru from which they are not permitted to leave, except for medical and other reasons. That seems to be, at face value, a legitimate question for the responsible authorities to be answering. CHAIR-It is six o'clock and you have a plane to catch and we have a meeting to attend. I understand that Senator Mason foreshadowed that he had an interest in further questions, but time has constrained him and it may be that that is also true for Senator Faulkner now. If questions were put on notice to you, would you gentlemen be available to answer those questions on notice? Mr Ensor-Yes. Proceedings suspended from 6.03 p.m. to 6.56 p.m. HODGES, Mr John Charles, Chairman, Immigration Detention Advisory Group, c/o Department of Immigration and Multicultural and Indigenous Affairs CHAIR-Welcome. First of all, can I say that the committee and I apologise for the delay and any disruption that may have been caused to your workday. That is regrettable, but at last we have you this evening. That is the only upside to it. Do you have an opening statement to make? Mr Hodges-Yes, I do. Thank you for those comments. I appreciate the difficulties the committee has from time to time. Thank you for your thoughts. I thought it might be useful to the committee if I were to make a brief statement. I will endeavour to keep it as brief as possible. It is just to outline some of the background of the Immigration Detention Advisory Group, IDAG, which I chair, and what we have been about over the past 12 months. It is a little more than 12 months since we were formed-indeed, February last year. Minister Ruddock brought the group together with a view to having us primarily examine conditions in the existing immigration reception and processing centres and the detention centres around the nation. In addition to that, I did travel privately at the request of the minister to Manus Island and Nauru. I went to Manus from 28 February to 2 March and to Nauru from 25 March to 26 March. The objective of the minister was fairly clear. The terms of reference are clear and are available to the committee. We have looked at all matters from health standards, education, the standard, quality and quantity of food to clothing, bedding and accommodation. You name it and we have looked at it. We have talked to hundreds of detainees over that period and visited all of the detention centres, some more frequently than others. We have spoken individually to detainees. We have also spoken to them in groups and with representatives of the detainees on some occasions. It has been fairly comprehensive. We have unfettered-as you probably appreciate-access to detention centres. We do not have to give notice and we do not have to have staff with us. We also have very open and free and easy access to the minister as well. That was for the part of the process of having a group that was able to go into detention centres without notice, if need be, to talk to detainees. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1405 We had made it a policy not to get involved with the cases of individual detainees; however, it is inevitable when you visit detention centres that you will get some people who come to you, either singly or in groups, to talk as you are wandering around. We have made it a practice to eat in the dining halls so as to be with the detainees. We have inspected the kitchens and have looked at their menus, and I do not think there is one aspect of detention in this country that we have not looked at fairly closely. A specific matter that the minister referred to us in January-February was the hunger strike and the lip-sewing and self-harm episodes at Woomera. One other member and I visited Darwin and met a boat at about 5.30 one morning-that is, the HMAS Dubbo and another vessel that I understand is under charter to Customs. We were accompanied by Brigadier Silverstone at that particular meeting for the unloading of the boat people. We then spent most of the day observing the processing of these people at the showgrounds in Darwin before they were flown out, in this particular case, to Woomera. CHAIR-Was that boat a SIEV? Mr Hodges-Yes. CHAIR-Do you know what number it was? Mr Hodges-No, I cannot tell you, I am sorry. Two of our members, and I was not one of them, went to Christmas Island. We have talked extensively with ACM management and with DIMA management at all levels, including at each of the detention centres. We always have a briefing at the detention centres. Usually we have a briefing when we arrive and a further briefing when we leave. So the experience of the committee members is fairly extensive at this stage. I will leave it at that, because I could go into a lot of detail that you probably do not want to hear about anyway. I will leave it up to you to question me. CHAIR-Thank you, Mr Hodges. Senator BRANDIS-Mr Hodges, I want to focus you only on the Manus Island and Nauru detainees. Would you care to describe for us, as discursively as you wish, your overall assessment of the nature of the conditions in which those asylum seekers are being housed, from the point of view of habitability, sanitation, nourishment, the availability of medical care, educational facilities for the children, and their physical wellbeing generally. Mr Hodges-Perhaps I should deal initially with Manus Island, where there are a little over 350 detainees. The facility has been established at the old US base used during the Second World War. There is good quality food. The accommodation is not as good as the accommodation that we have in Australia in the mainland detention centres, but it is adequate. They are very pleasant surroundings, because it has the water on one side and the jungle on the other. They are pleasant surroundings in that there is no barbed wire or razor wire. We ate at least one meal with the Manus Island detainees. The detainees comprised nearly all Iraqis. There was a handful of Bangladeshis and I think a few Sri Lankans and so forth but, out of about 350 to 360 in total, I think about 330 were Iraqis. Senator FERGUSON-There were no Afghans? CERTAIN MARITIME INCIDENT CMI 1406 SENATE-Select Wednesday, 1 May 2002 Mr Hodges-No. I think there were some initially but they had been moved to Nauru. We were questioned by a number of them during our visit, because they were the `children overboard' people- Senator BRANDIS-By that, do you mean the SIEV4 people? Mr Hodges-Yes. I am not quite up with your terminology in terms of your SIEVs, but I have heard a bit of it today and I have read a bit of it. They were the first, I think, of the two groups to arrive on Manus. They were concerned that they had been depicted in Australia in the newspapers, in the media and politically as people that had thrown their children overboard, and they were very concerned about that. We reassured them that that was not the case, and that the situation was understood fully within the Australian community-or as fully as we felt it could be. On medical supplies, one of the features of all of the detention centres, you find, is people complain a lot about the medication they are receiving or not receiving, and the medical attention they are not receiving. There are quite interesting figures that in the Australian community we have about one doctor to about 800 people, whereas they have one to 70 or thereabouts in the Manus Island facility. I think it was probably one to about 200 in the case of Nauru, but people would come to you and say, `I have got a problem. I have got this or that, or this little growth here.' I took notes, in moving around the camp-I am talking specifically about Manus now- probably for about a dozen people. I decided then to talk to the doctors, and went to the local hospital. It turned out that for most of them, most of the problems they described, and the fact that they were not having the medication that they thought they should have been, in actual fact, none of the matters that they discussed really had any foundation to them. That was talking person-to-person with the doctors, with nothing arranged; just meeting the doctors and saying, `Look, about number so and so'-we took numbers, basically, for ease of identification. I thought, personally, that they were as good a group of detainees that I had run into. I should mention that on that particular visit to Manus, Dr Alsalami was with me. He is another member of the IDAG group and, because he is Iraqi, had again been requested by the minister, as they were primarily Iraqis on Manus. He and I went to Manus, and he came with me later on with an Hazara Afghani to Nauru, but it was not related specifically to IDAG; I just wanted to make that point. Getting back to Senator Brandis's question, I would say that the Manus Islanders were well off and had good food. Malaria is a bit of a problem there. From all reports from the doctors, I think earlier there were a couple of cases of malaria that were reported. One of the difficulties the doctors faced, and the IOM and anybody else that was involved-I think there was only one APS officer present-is that they would not always take their treatment, but malaria was not rampant. I think that some reports indicated that malaria was rampant in the camp, and it was not. There is no malaria risk at all at Nauru. All in all, I would say that the Manus Island detainees were very comfortable in their quarters; they had a full-size soccer field and that was well used. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1407 Senator MASON-Can I just ask, in addition to what Senator Brandis asked about children and also prenatal and antenatal care, which was an issue elsewhere, did you find that care for children and for nursing mothers was reasonable? Mr Hodges-There were six doctors on Nauru with 350 or 360 men, women and children. It was not raised at all. I did finish up bringing back four medical cases that I referred to the department, and wrote them a letter about. But they were ones that I had not had a chance to talk to the doctors about, because this is an ongoing process. I only met with the two of the doctors on one occasion. I met three of the doctors in total, but I questioned two of them about the detainees and these health problems-about a dozen, as I mentioned earlier. I visited the hospital, such as it is. It is not a very fine facility by our standards, but I could not really say that there was anything of a major nature that the detainees on Manus were wanting for. Senator BRANDIS-There was no suggestion either from the detainees or from the doctors that any of them were at medical risk? Mr Hodges-No. My recollection of probably one of the worst cases was a woman who was injured apparently-or this was her story-when she was lifted onto the boat, which must have been the Adelaide. She was on a homemade crutch. I brought to attention that she was having difficulty in getting around just from her sleeping quarters to the ablution blocks and so on. I hope that something has been done about her. It was a back problem that she had sustained. No, I do not know of any major problems health wise that existed there. Senator BRANDIS-And nutrition was not a problem? Mr Hodges-It was certainly not a problem. Senator BRANDIS-And the educational needs of the children were being catered for? Mr Hodges-On Manus one of the detainees was an accountant who spoke fairly good English and that person was actually taking classes. I said to IOM and our immigration officer there, `This woman ought to be encouraged', because I felt she was doing a very fine job with the children. There were certainly no complaints. We had two meetings. One was with about 200 people, and a second meeting on the afternoon of that same day was with about 90 people. Some of the 200 were at the second meeting. I addressed them, as did Vince McMahon, the first assistant secretary of the department, who was with us. Mohammed Alsalami talked to them in their own language. There were competent interpreters present. A lot of them wanted to get stories off their chest, as they are wont to do in these circumstances. We felt that at the end of our second day there that they really were played out, so to speak. They had asked all the questions that they wanted to ask us. Senator BRANDIS-On 18 April, you gave an interview to the AM program, or one of the ABC wireless programs, to a journalist called Vivian Schenker. I have the transcript here. I do not vouch for the perfect accuracy of the transcript, but you are recorded as having said to Vivian Schenker: One thing you learn when you talk to detainees-and I've just come back from Manus Island and Nauru-is that if you get a report from them, you are speaking to them sometimes direct because their English is okay, sometimes through CERTAIN MARITIME INCIDENT CMI 1408 SENATE-Select Wednesday, 1 May 2002 interpreters, but what you've got to be careful of is that you double-check what they've told you, because often the truth, the facts differ quite widely from what they have told you. Do you remember saying that? Mr Hodges-Yes. Senator BRANDIS-Would you elaborate on that? If appropriate, would you give illustrations of what you mean? Mr Hodges-That is a common thread right throughout detention centres. I have come to the view-and I think a number of members of our group have come to the same view-that people who are in detention for weeks and months, including sometimes six to 12 months and longer, tend to become a little desperate. They will put their own construction or slant on what is happening to them or on issues around the camps. So truthfulness is a real problem. Just recently, visiting Woomera, a departmental officer and I questioned a man and his wife- he had two children and his wife was expecting. She told me-and, incidentally, if their English is not good we always have very competent interpreters with us-that they had taken blood from her in Woomera and she had never heard the result. If I did, as the Department of Health Services in South Australia had done in some instances, because of the findings that came out of a recent report that was done at about Easter, which was only a matter of weeks ago, and I did not check with ACM or DIMA, then I would have written down what she said. That is one of the failings, of course, when people go into detention centres: they tend to believe the detainees rather than do some crosschecking with the medical staff. In this particular instance of the lady I am referring to in Woomera, the blood results had come back; the blood sample had not been lost or the results lost. She did, I believe, have some anaemia and she was receiving treatment for it. The same happens with children: they sometimes will not allow their children to be im- munised. Subsequently sometimes they allow the children to be immunised, having refused in the first instance. It is a fairly common thread right throughout the detention centres for them to come up to you and complain about the quality or quantity of the food. That is not say that everything in every detention centre is 100 per cent all the time, because it is not. We have brought various matters to the attention of DIMA and ACM from time to time during our visits. But you just cannot go by what they tell you. I am not saying they are the biggest liars in the world, but the facts are that they just do not get it right. That concerns us, as frequent visitors to detention centres, when we see reports coming out. It concerns all of us. Two major issues that came out of that recent Woomera report by the South Australian officials were that children were not fed properly and that if they did not have their food at meal times-the dining halls are open for two hours at breakfast and at lunch and I think it might be 2½ hours in the evening-they did not get fed. I particularly checked out the refrigerator on a visit to Woomera a week or so ago. I do not know what the capacity of the fridge was, but it was quite large, a two-door, about 1.6 metres high. I went to the fridge and opened the door. This family did not even know we were coming. The fridge had an abundance of food and milk, including formula-this woman had a baby about six or eight months old. It is a failing that, when people go into these centres, if they do not do the inspections themselves or inquire of DIMA or ACM they go away with a lot of wrong impressions. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1409 Senator BRANDIS-In some of the more extravagant circles in the media or, indeed, in politics, there has been a description of some of the detention centres as like concentration camps. I did not know if you have ever been to a concentration camp, but what do you say about that observation? Mr Hodges-I have not been to a concentration camp. Look, these are not the most desirable facilities in the world. But many years back I did visit two camps, one outside Kuala Lumpur and one at Manila, where a lot of their shelter was made out of packing cases and at the Manila one, I think it was, they had one tap with running water. But here in Australia-and I am not saying all this applies on Manus Island because there is not very much airconditioning there- we have airconditioning facilities that they sleep in; yes, there is high wire and razor wire around them, and that is not very pleasant; and there is an abundance of good food and they take part in the preparation of the food, the determination of the menus and so forth. Education facilities I believe are lacking a little. But you have to appreciate that there are a lot of itinerant people, and it is very difficult to set a curriculum for children who perhaps in some cases have not even been to school in their home countries to start with. Yet they are making it fairly well with English, the little bit of English that they are starting to pick up. Usually, as is the case with most youngsters, they learn quicker than their parents. Education is a bit of a problem, but with clothing and food, and airconditioning in Australia-not in Nauru and Ma- nus-we are looking after them, I believe, fairly well. Senator BRANDIS-Medication? Mr Hodges-I think the medical facilities in Australian detention centres are very good. They are far better than those that a lot of people in rural Australia are enjoying at the moment. I have to say to you, Mr Chair and the committee, that I do not think it would matter whether you put them up in the Hilton Hotel or not. After there is a slowdown of their processing, there is the feeling of hopelessness that creeps in to a lot of people. You are going to have problems in detention centres whether they are in Woomera or Curtin or Port Hedland or the Hilton Hotel because they are confined and their liberty is restricted. Senator MASON-You mentioned, Mr Hodges, that after two days at Manus Island, in a sense, all the stories had been exhausted. Were there any stories from the asylum seekers at Manus Island that related to the conduct of the Royal Australian Navy and HMAS Adelaide? Mr Hodges-Not from my recollection, Senator Mason. I think they were fairly appreciative and rather praiseworthy of what had been done for them when they were rescued. Certainly, from my recollection of the situation on Manus, there was no criticism about being ill-treated. There was the woman, as I said to you earlier, that was injured. One or two of them were injured. I think one detainee had some teeth missing-this was a male detainee-because his mouth had been knocked about in a fall or whatever. But no, I did not get the impression that they were at all critical of the sailors and of their handling. Senator MASON-No discussion then about the boarding party or the engine on the Indonesian vessel; no discussion of that that you remember? Mr Hodges-No, not that I recall. CERTAIN MARITIME INCIDENT CMI 1410 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-No suggestion that they were lied to by members of the Australian naval forces? Mr Hodges-I think there was a degree of distrust, Senator Brandis, but I do not recall the terminology `we were misled' or `lied to'. I think there was a suggestion that they were a bit distrusting of what had happened to them. We have to remember that they had paid money to people smugglers to come to Australia, that was their objective. And they can be channelled off somewhere else. Senator BRANDIS-And obviously there was an expectation generated by the people smugglers that they were a sure bet to find landfall in Australia. Mr Hodges-Yes, I do not think there is any question about that. That came through at Nauru as well. Senator BRANDIS-Mr Hodges, are you satisfied that you and the other members of IDAG who travelled to Nauru and Manus Island gave the asylum seekers there every opportunity, free of any apprehension of duress or authority or whatever, to raise with you any complaints they may have had about their treatment either at the detention centres or by the Australian military forces in getting them to the detention centres? Mr Hodges-Yes. The visit we made to Manus was longer than the one we made to Nauru, and it was a better visit. Of course, we were dealing with 350 people as against about 1,150 on Nauru. We gave them every opportunity to tell us their stories-that is, in group meetings as well as individually, person to person. I felt quite comfortable that they had revealed to us whatever they wanted to reveal to us. Senator FERGUSON-Mr Hodges, I think it is fair to say that your independent advisory group is probably regarded as more independent than some other people who have been into detention centres with a particular cause in mind. I think the comments they have made to the public once they have been to detention centres reflect their own particular slant on things. Your advisory group has been in operation for about 18 months. Is that right? Was it Christmas 2000 when you set up? Mr Hodges-No, it was February 2001. Senator FERGUSON-I visited Port Hedland, Curtin, Perth and Woomera in January 2001. I think we were there just before your group's first visits to those areas. As I understand it, you made a number of recommendations very early after the formation of your group. Mr Hodges-Yes. Senator FERGUSON-Have most of the important recommendations been carried out by the government? Mr Hodges-Yes, they have. The committee is probably aware that there is a new tender going out for the management of the detention centres, and we have had an input into the detention standards. A number of things that we have raised during our visits and at our meetings with departmental officers following such visits have been taken up by those officers CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1411 on the way. The senior officers in DIMIA, I believe, welcome what we are doing, because it focuses them more acutely on the problems. A couple of people have said to me in the past, `You are a former Liberal member and immigration minister. Ha! Ha! The Minister for Immigration and Multicultural and Indigenous Affairs is a Liberal and he has appointed you.' I do not do Minister Ruddock's bidding. I never have done and I never will. Senator FERGUSON-I am sure he has noticed that. Mr Hodges-I think he has. I think that applies to all of the members. We have been pretty forthright with him. He has not taken all of our recommendations up, as you could perhaps understand, but he has taken up a lot-for example, in health, particularly mental health. And there were little things. For instance, on the first visit to Woomera we noticed that a lot of detainees did not have shoes or thongs on-just minor things that may go unnoticed by ACM staff or DIMIA staff. It was not as though the shoes or the thongs, in this particular instance, were not there, because they were. We noticed the need for more clothing and the lack of landscaping and playground facilities-all those sorts of things. It is nice to go back for another visit and find that you have some results as a result of what you are doing. Senator FERGUSON-I am surprised to hear you say that food for children between meal times was still an issue, because I remember that being raised in January 2001. At that stage they said, yes, that was the case but is no longer the case. Now, 15 or 16 months later, they are still raising the issue as though it is a problem when in fact, as I understand it, for the last 12 months children have been able to get food between meals-that is, young children. Mr Hodges-Yes, toddlers and very young children. The staff at the centres are horrified when they hear that, because it is a reflection on the staff. It is also a reflection on IDAG if it is thought that we are not looking at those things-and we have been. That is why I could not get back to Woomera quickly enough a week or so ago just to check these particular points, because it is a reflection on our group as well. Senator FERGUSON-I have another question in relation to the centres. You said that the living conditions, the housing, on Manus Island and Nauru might not have been quite as good as those in Australian detention centres. Would that include Curtin, where I did not think things were all that flash? Mr Hodges-Curtin is a lot better than Manus Island and Nauru in terms of accommodation. One of the earlier witnesses here from Oxfam did raise the question of water supply, and it is in their submission as well. Water supply is not a problem on Manus-there is an abundance of good, clean, fresh water-but there are some deficiencies on Nauru. The department know of them. They are moving to rectify some of those deficiencies. For instance, fresh water is a problem on Nauru. Their desalination plant breaks down. Their power breaks down too frequently. They are using a mixture of brackish water and fresh water. There is a plan-I do not know whether it is to be implemented; it was going to cost a lot of money-to supplement the freshwater supply with a further desalination plant. They have installed primary treatment for sewerage at the Topside camp in Nauru. Nauru is by far the worst of the detention centres; it is hot. Both Nauru and Manus Island are built on areas that have been extensively mined, many years ago, and the facilities are just not as good as they are in Australia. We visited Baxter, near Port Augusta, recently and met the mayor of Port Augusta-an interesting lady. CERTAIN MARITIME INCIDENT CMI 1412 SENATE-Select Wednesday, 1 May 2002 Senator FERGUSON-A very interesting lady, I can tell you. Mr Hodges-We had breakfast with her-she could not join us the night before for dinner with the local Salvation Army chief and the Catholic priest. She is a very outspoken lady. Baxter will be the best facility we have got. It is purpose designed but not purpose built. Having said that, no detention centre is desirable in my view, but as a facility it will be far better than Woomera. The quicker Woomera is closed altogether the better, in my personal opinion, and we have expressed that to the minister. Senator FERGUSON-Is that because of isolation? Is that the reason you think Woomera should be closed? Mr Hodges-The culture that has developed in Woomera is very difficult to eradicate. If you transferred the detainees plus the staff out of Woomera to Baxter or anywhere, I think you would have some similar problems. Yes, part of it is the harsh physical environment there. The women and children project has gone quite well. We visited that last week when we were there. Senator FERGUSON-These are those who are living out of the centre? Mr Hodges-Yes, those living out of the barbed wire and the palisade fencing of the detention centre proper. Again, that town facility is not being used-although there are only about 220 people left at Woomera at this stage-as much as it should be and has not been used as much as it should have been. But families sometimes elect not to go there. It is an agreement between the husband and the wife that they do not want to be separated. They can always return to the main compound and some of them do go back to the main compound. The education facility at Woomera is much improved. They are using a disused Catholic school, and the children are doing very well in that facility with the teachers they have. Senator FERGUSON-The conditions at Woomera are still not as harsh for the detainees as they are for some of the people working on stations further out, I can tell you. Mr Hodges-I think that is probably the case-I am not an expert on the bush. Senator FERGUSON-I have been out there. Senator BRANDIS-For completeness, I want to come back to the question of whether any complaints about treatment were made to you. I want to focus specifically on the Manus Island asylum seekers. Did you see, or are you aware of, some allegations made on a Four Corners program about three weeks ago in relation to the interception of SIEVs? Mr Hodges-I did see the Four Corners program. Senator BRANDIS-You recall there was a suggestion-I will not put it any higher than that-that Australian military authorities used what were described by one person as `electronic sticks'. I think the journalist then helpfully used the expression `cattle prods'. Was there any complaint or suggestion of that made to you when you visited the asylum seekers? Mr Hodges-No, there was not. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1413 Senator BRANDIS-Was there any suggestion at all of violence by any Australian military authorities? Mr Hodges-No, there was no suggestion of violence or brutality in any shape or form. Senator BRANDIS-Or excessive force? Mr Hodges-No, not even of excessive force. Senator BRANDIS-Was there any suggestion in relation to the SIEV4 incident, that is what I think you call the `children overboard' asylum seekers, that the circumstances in which the engine on their vessel stopped and it became disabled was in any way attributable to behaviour by the boarding party? Mr Hodges-No. Senator BRANDIS-Was there any suggestion that the asylum seekers were lied to about the provision of supplies? Mr Hodges-No. I have seen those suggestions, Senator Brandis, in some of the submissions and some- Senator BRANDIS-I am sorry to talk across you but you are familiar with a four-page email from five people purporting to speak on behalf of the Manus Island asylum seekers, which does contain a number of complaints along the lines that I have just foreshadowed to you? Mr Hodges-I have read it, Senator, yes. Senator BRANDIS-May I ask this globally: were any of the complaints or grievances suggested in that email raised with you by any of the Manus Island asylum seekers? Mr Hodges-Not that I recall. Senator BRANDIS-Or with the accompanying member of IDAG? Mr Hodges-No, not that I recall. Senator BRANDIS-I think you told us that the accompanying member of IDAG was an Iraqi speaker. Mr Hodges-Dr Mohammed Alsalami. Senator BRANDIS-Thank you. CHAIR-Mr Hodges, I think you said-and I have to apologise for not recognising this- that you were a former Liberal member and a minister for immigration. CERTAIN MARITIME INCIDENT CMI 1414 SENATE-Select Wednesday, 1 May 2002 Mr Hodges-That is correct. CHAIR-When were you minister for immigration? Mr Hodges-In 1982-83. CHAIR-That would have been in the McMahon government. Mr Hodges-No. It was in the last Fraser government. CHAIR-Of course, yes. Senator FERGUSON-He is a former member for Petrie. CHAIR-That is a very nice area of Australia. What other qualifications do you have to be chair of IDAG? Mr Hodges-I do not know that I have any special qualifications, Mr Chairman. I am a pharmacist by profession and have gone back to pharmacy practice, and I have been practising now for several years since I have been out of politics. CHAIR-There is life after politics. Mr Hodges-There is a life after politics; you do not think so at the time but let me assure you gentlemen and lady that there is life after politics. Senator FAULKNER-Mr Hodges, at this hour of the night it sounds incredibly attractive, I can tell you. CHAIR-We are desperate to introduce some of our colleagues on this committee to that life as soon as possible. Senator FERGUSON-You are trying to. Mr Hodges-I know, Mr Chairman, they will not agree with you. I have a wife, and three children in their late 20s and 30s. I have seen a bit of life but I do not think I have anything special, really, to chair it. I must say that it is a very good group of people. There are a lot of individuals and we do not all agree. Let me assure you that it is very hard to get a consensus around the table on a lot of issues. They are all very individual. I have said to some of them that everyone has an audience-we all have an audience-and sometimes I think we tend to want to play to those audiences. What we have got to try to deal with are the problems that are there and to give the best advice that we can to the minister. That is what I hope we have been doing. CHAIR-Prior to taking on this responsibility, did you have any previous experience or responsibility associated with detention centres as such? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1415 Mr Hodges-No, I did not, except, as I said a little earlier, I did visit two camps-one in Manila and one outside of Kuala Lumpur. That was when I was in politics. No, I have not had any experience with detention centres at all. CHAIR-Back in your day, were there centres at airports for people to be detained in while waiting to be deported? Mr Hodges-Yes, there were. As minister, I visited Maribyrnong and Perth. There has never been a centre in Brisbane. About eight or nine months ago I visited the Arthur Gorrie Correctional Centre in Brisbane, where a cell block is given over to Immigration for the detainees picked up who are basically, as you would appreciate, visa overstayers. Maribyrnong was a fairly new facility in the early 1980s. Perth was also a new facility, and from memory I think that Perth was not actually operational; it was very new. Villawood, in Sydney, was there-where I also visited-but not for the purpose that Curtin and Woomera are particularly, and Port Hedland, which is to detain boat people. Yet there were boat people prior to my time as minister; I think there may have been a trickle of them about. Certainly there were refugees from conflict in Lebanon and the Middle East. CHAIR-You have never been a visitor to low security or minimum security prisons or places of that nature? Mr Hodges-No, I have not. CHAIR-When the Bosnian refugees came to Australia, they were put up in Western Australia at the naval station. Have you inspected those quarters? Mr Hodges-No, I have not. Senator FERGUSON-The Kosovo refugees. CHAIR-The Kosovo refugees, yes. So it is fair to say-I just want to try and establish this-that your experience of detention centres, more or less, begins with the experience you are having now. Mr Hodges-That is correct. CHAIR-You were saying that the boat people or people on Manus Island were concerned that they were depicted as people who had thrown children overboard and that they were being seen that way in the Australian media, and you reassured them that that was not the case. I think that is what you said. Mr Hodges-Yes. CHAIR-What did you tell them? Mr Hodges-What we went to pains to tell them was that, although the stories had circulated throughout the Australian media, it was now realised that they were not guilty of throwing their children overboard, and we apologised to them for what had been published. I think another CERTAIN MARITIME INCIDENT CMI 1416 SENATE-Select Wednesday, 1 May 2002 thing that the committee may have come to realise is that the detainees are fairly well informed. They have their channels of communication, whether it is mail, papers or newspapers that are sent to them or telephone calls they make or whatever. Even in places like Manus and Nauru they are not that isolated, although they are more isolated, of course, than they are in Australian centres. Senator FAULKNER-When were you able to apologise to them, Mr Hodges? Mr Hodges-We had two group meetings on Manus-apart from moving around for hours and hours on end; countless hours spent-one in the morning one day, with about 200 people, and one in the afternoon with about 90. Some of the 90 had been at the morning meeting as well. Senator JACINTA COLLINS-But this was early April or mid-April. Mr Hodges-Manus was February or February-March. Senator FAULKNER-I am wondering if you are able to nail down a specific date. Mr Hodges-We arrived on Manus on 28 February; it would be 1 March. The day we had the two meetings of 200-that is an estimate, but I think it is fairly close-in one group and 90 in another was 1 March. CHAIR-How agitated were they that this allegation had been made? Mr Hodges-It did arise on a number of occasions. It arose at the group meetings and it arose as we moved around the compound as well, so it is true to say that it was raised on a number of occasions. CHAIR-You have said that they are reasonably well informed about what is said and reported in the media. Were they aware that the Prime Minister had said that people like this- that is, people who throw their children overboard-would not be welcome in Australia? Were they aware of that type of comment? Mr Hodges-I think they probably were. I cannot say specifically that someone came to me and said, `Mr Howard said this or that,' but I think it is true to say that they would have been au fait with who had said what or that it was across the spectrum. CHAIR-And they were concerned to establish with you that they were not that type of people. Mr Hodges-Exactly. CHAIR-And you were able to reassure them that, now that we know that no children were thrown overboard, the view that they had thrown children overboard no longer applies, as far as Australians are concerned. Mr Hodges-That is what we conveyed to them, yes. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1417 Senator FAULKNER-How did you know that it no longer applied? I am not saying that you are wrong-you are quite right-but there are some others that do not appear to have come to the same conclusion at the same time. Mr Hodges-We were there on a goodwill mission, I guess. There were some tensions-I think it is true to say there are probably always some tensions within a detention centre-and we knew that the people we were dealing with or at least some of those people on Manus were the `children overboard' people, as they are known, and, because the evidence was appearing to be as though things were not 100 per cent as had originally been depicted, reported or inferred, we felt we should reassure them that- Senator FAULKNER-On whose behalf were you able to apologise in this instance? Mr Hodges-Basically on our own behalf. Senator FAULKNER-That is fair enough. I am just trying to understand. Senator FERGUSON-It was a bit after Admiral Barrie's clarifying statement, was it not? That was on 25 or 26 February. Senator JACINTA COLLINS-Or were you not aware of it at the time? Mr Hodges-I could not quote you the time. Senator FAULKNER-I imagine Admiral Barrie's view would not be that important in terms of your committee's- Senator FERGUSON-But it made headlines. This was something you read. Senator FAULKNER-Was it? Senator FERGUSON-Yes, it made headlines. Senator FAULKNER-Mr Hodges can help us. CHAIR-We should talk to the witness rather than to ourselves. We have plenty of time to talk to ourselves. Senator FAULKNER-My question is, Mr Hodges: was Admiral Barrie's view important in terms of the group determining that it would apologise? Mr Hodges-I really cannot answer that-I really do not know. Senator FAULKNER-I appreciate that you cannot answer on behalf of the group. That is a frank answer and I do appreciate it. Personally, was it significant? Mr Hodges-No, I do not believe it was. CERTAIN MARITIME INCIDENT CMI 1418 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Thank you. CHAIR-Were they mollified by your apology? Mr Hodges-Yes, I believe they were. There was a deal of outpouring by individuals at particularly the first meeting, and McMahon endeavoured to answer initially their questions as they came forward. He did answer a number-we all did. Then it became obvious that they just wanted to get a lot of this off their chests-all of their problems-and we just let them go until they had exhausted themselves. It was a very orderly meeting-do not get me wrong. Although there was a lot said, it was very orderly and they heard each other out and we heard them out. CHAIR-It sounds like a very civilised exchange. Mr Hodges-It was. In the case of one of the Nauru meetings we had what was obviously a planned walkout because they did not get an answer to a question-but don't ask me what that specific question was. I was a little bit stunned, but it was very obvious that it was a planned walkout. But the same representatives later talked to us. They tend to blow a bit with the wind because of their emotional state and their concerns about their future and when they are going to get out of the camps and so forth. CHAIR-You offered us the terms of reference for your committee, and I would appreciate having a look at those. My understanding is that your basic role is to inspect these camps and make sure that they are in a proper condition and people are being treated responsibly and humanely. Is that the fundamental role? Mr Hodges-That is certainly one of the roles, but I think it is true to say that it is broader than that. It is about the facilities that are there and the adequacy of the facilities. It is pretty broad, actually. CHAIR-As I understand it, from the way you have presented it, one of your roles is not to investigate complaints or whatever-you hear them but that is not your primary role? Mr Hodges-Exactly. CHAIR-When you come into a camp you are not introduced as someone who is going to sit down and listen to their complaints; you are introduced as someone who is going to look at the facilities and check the accommodation, education facilities, food, clothing and all that sort of stuff. Mr Hodges-Correct. CHAIR-And they are clear in their own minds that that is what your purpose is? Mr Hodges-Yes, I think they are probably clear, but that does not stop them from approaching you. CHAIR-Of course. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1419 Mr Hodges-I think if you and I were in their circumstances we would probably do the same. I think I would be insufferable if I were in their position. But that is a personal view-a criticism of myself, if you want to take it that way. CHAIR-I think I understand exactly what you are saying. I would probably be the same. I am insufferable as it is, but- Senator FERGUSON-And you are not in a camp. CHAIR-Are you saying that they show a fair bit of forbearance given their difficulties? Mr Hodges-Yes. If we talk specifically about the Manus Island group, I thought-as I think I may have indicated earlier-they were a very good group in that they seemed fairly settled. I went around a group of them and a lot of them did speak quite good English. Of course, some of them did not. I asked them what they did in private life. There was a great cross-section of trades and professions, from accountants, to a doctor, to clerks and a lot of tradesmen-you name it, they were there-and most of them were able to answer me in English. That was in a group of about 12 or 15 that I was with at one stage. CHAIR-Were they mainly Iraqis on Manus Island? Mr Hodges-They were Iraqis. CHAIR-Did any of them denounce Saddam Hussein to you? Mr Hodges-Most certainly. CHAIR-Quite passionately, did they? Mr Hodges-I had one doctor in particular-a 26-year-old. I took him aside to hear his story and it was pretty chilling sort of stuff. His father and mother were both specialists and I think he had another sibling who was a specialist. He was a GP in a hospital. It was pretty chilling sort of stuff. He said that he wanted to go to Europe, but he ended up in Turkey and from Turkey to Malaysia and from Malaysia to Indonesia. He kept protesting-this is what he told me-that he wanted to go to Europe. He had some friends or connection there. But it was pretty chilling sort of stuff. Senator FERGUSON-A fairly middle-class refugee with money? Mr Hodges-Yes, he had a home and a car. Apart from his family, he was. I must say, I was reasonably impressed with him as a good style of guy. I would like to find out whether he was one of the hundred-odd who have been accepted- Senator FERGUSON-Maybe he is circumventing the immigration system as well. Mr Hodges-at least for refugee status. CERTAIN MARITIME INCIDENT CMI 1420 SENATE-Select Wednesday, 1 May 2002 CHAIR-I have seen on TV-I do not know first-hand; I have read reports of it-that among many of these people there is a high incidence of them or a close family member having suffered torture or that they lost a family member in some way or that they had some graphic pain visited on them by secret police or organs of the state apparatus in the countries from which they fled. As a group they have a high incidence of-what do they call it-post-traumatic stress syndrome. Are you aware of any of those types of analyses? Mr Hodges-Yes, I think it is true to say that a number of people that we talk to would be the people who you would see individually or in twos and threes-a husband and wife-but not in a group situation. They would rarely express any of that in a group situation, but certainly individually you would get that. CHAIR-Are there any people who have obviously been physically damaged by torture? Mr Hodges-Yes, there are some, although I have to say to you that we did not really inquire. There were no obvious limbs cut off or that sort of thing but, yes, some of them mentioned that they had been tortured. They would perhaps show you marks where there were cigarette burns or knife marks or wounds that had healed-not a lot, but some. Senator FERGUSON-It is not part of your role to advise the minister on those issues, is it? Mr Hodges-No, it is not. Senator FERGUSON-That is not their role. CHAIR-That is right. Just going on, you talked earlier about education needs. How do you assess what the education needs are? You mentioned the accountant, who was a detainee in the camp and was taking classes, and the need to encourage that type of self-sufficiency in education provision, but is there any sort of qualified assessment of the education needs of the camp populations? Mr Hodges-I do not know that there is or has been in Manus or Nauru-I cannot answer that. Time just got away from us and we were not able to deal in depth with some of those issues there. But certainly in a place, for instance, like Curtin, there is a very good teacher-I do not know whether he is still there. Woomera, as I said earlier, is better set up now that the numbers are down. I do not think it is only because of the numbers, it is just that they are getting their act together more and more. Some of the select students in a place like Curtin are going into Derby to school. Some in Port Hedland are going out of the camp to school. All of the children in Woomera at the moment are going to a disused former Catholic school. So there is a lot being done but I think a lot more can be done. Senator JACINTA COLLINS-Will it be in the future contracts as a condition? Mr Hodges-Yes, the contract, as I said earlier, has been upgraded. It will be tightened a lot in lots of areas-not just in education but across the spectrum. I think it will a better detention standard document than is currently there-a much better document. CHAIR-I want to conclude by asking you a couple of questions about what was put to you by Senator Brandis. With respect to the Adelaide people and with respect to the Four Corners CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1421 program where there was a statement about the use of a cattle prod, you were asked whether any suggestions were made to you of violence, brutality or the use of cattle prods. You were asked a question of that type; I may not have the phrasing exactly right. Then you were asked a question about the behaviour for the boarding party-this was the Adelaide boarding party-and whether those people in that SIEV were lied to about supplies. Did you inquire about those things yourself directly? Mr Hodges-No, we did not. I have noticed some of these allegations about electric sticks or cattle prods and so forth in their submissions. They were not raised with us, and we certainly did not question them about it. CHAIR-Would you say that you have an exhaustive appreciation of what the truth of that matter is or are you saying simply that it was not something that came forward? Mr Hodges-I believe, in a fairly exhaustive session or sessions with the Manus Island people, that they would have raised these issues-I am sure-because they were aware of the accusations in the media here about them throwing their children overboard. One cannot be totally confident but I feel reasonably confident that they would have raised those issues with us because there is a tendency with detainees, who have a lot of time to think about a lot of things, to dwell on often minor things that they tend to blow out of proportion. From my recollection of the visit to Manus-and it is pretty clear-they did not raise those with us. CHAIR-Did you have the submission that the Manus people have put to this committee with you at the time? Mr Hodges-No. CHAIR-So you were not able to ask them about the allegation? Mr Hodges-No. Senator FERGUSON-This committee had not even been set up then. It had just been set up. CHAIR-I am just going to the level of what weight we put on the fact that they did not raise it. Because what you are characterising to me-and correct this if my impression is wrong-is that they did not raise it. They had an opportunity to do so. If there was something in their mind, they most likely would. But no initiative was taken to inquire of them specifically about these things. Senator FERGUSON-Unlike the Four Corners reporters. Mr Hodges-That is correct. CHAIR-So it would be hard to be absolutely categorical, one way or another? Mr Hodges-I agree with that. CERTAIN MARITIME INCIDENT CMI 1422 SENATE-Select Wednesday, 1 May 2002 CHAIR-When all is said and done, these people are in detention waiting to be processed and it must be a terribly boring existence for them without much to do or to stimulate or challenge them. You may not be in a position to answer this, but is that a case for trying to speed up the processing, move these issues on? Is the fact that people are idle and bored one of the things that leads to unhappiness in the camps? Mr Hodges-Yes, it is. Some of the recommendations we have made and that have been picked up are that there ought to be more in the way of activities for them: more sport, craft, games, anything at all. But having said that, even if there were, if you are in detention long enough I do not think it matters what you have got. As I said earlier, even if you were in the Hilton Hotel with plush surroundings, five-star or five-star plus, I think if time drags on and hopelessness creeps in you are going to get problems with them anyway. Senator FERGUSON-It is a fact, though, particularly in Australian detention centres, that where time has dragged on and where people have been in detention for more than a matter of two or three months it is because their initial applications have been refused, is it not? We tend to forget that something like 80 per cent are processed within six to eight weeks. Mr Hodges-That is true in the main. However, there are some cases in which-IDAG has been looking at this problem-final decisions have not been made but look as though they are going to be favourable to some people after six or eight months because they do not have security checks back. My understanding is that it often gets back to a body like ASIO. That is unforgivable. The minister has repeatedly said, and most people would agree, that the program cannot be compromised-I do not think that any of us would want it to be compromised-so every aspect of the processing must proceed to finality. What I would like to see is those times-that is the point the chairman has made-reduced if at all possible, and we have to do everything in our power to see that they are reduced. It is also true that most of the problems in the detention centres come about because of the long-term detainees who have been refused, been to the Refugee Review Tribunal, and often to the Federal Court, and have got a refusal right through. Then there are problems in returning people to their countries of origin, and that is not to be underestimated in many instances. Most of those problems exist because of the long-term detainees who have been refused at every stage. Senator FERGUSON-It might help their cause as far as security clearances are concerned if they do not destroy their papers before they come here. Mr Hodges-That is a major problem. Most of them arrive without any identification documents, travel documents or passports. Senator FERGUSON-Although they had them to get into Indonesia. CHAIR-Would it help if there were not so much razor wire and there were a more relaxed security element to it? Mr Hodges-I think it would. There is no razor wire at Nauru or Manus, but you do not go anywhere. CHAIR-You could hardly go anywhere from Woomera either. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1423 Senator FERGUSON-Yes, you can. Mr Hodges-When we were there last week there were still 10 or 11 of them at large. Senator FERGUSON-It is not bad country at this time of the year. Mr Hodges-I have been through that country too. Senator JACINTA COLLINS-Alcatraz did not have barbed wire either. Senator FERGUSON-December to February is the only time it is no good. I nearly went up there last weekend. Senator JACINTA COLLINS-When you provide us with the details of the terms of reference that the chair was referring to, could you also give some detail of the members of the group? Mr Hodges-Yes. Senator JACINTA COLLINS-I would like short information about the various people's backgrounds. In the interim, how many people are in the group? Mr Hodges-There are eight in the group. I have the lists here and I have the terms of reference, which I can give to the secretary. Senator JACINTA COLLINS-That is fine. Your trip to Nauru and Manus occurred between 1 March and- Mr Hodges-Manus was 28 February to 2 March, and the visit to Nauru was 25 and 26 March. Senator JACINTA COLLINS-It must have been the trip to Nauru that I saw in the media. Did you have any DFAT involvement in that trip? Mr Hodges-In Manus we had the deputy high commissioner in Port Moresby with us, plus one Australian Federal Police officer, who came along on the visit and stayed one night. The deputy high commissioner stayed two nights at Manus. On Nauru there are Chubb Security and APS officers, and there is now a high commissioner and a deputy high commissioner, Bill O'Brien, who is an experienced diplomat. Both camps are run by the International Organisation for Migration. That is about it. Senator JACINTA COLLINS-Which agency or department facilitated the arrangements? Mr Hodges-It was Immigration. Vince McMahon, who has been before the committee, accompanied the group to Manus and Nauru. Senator JACINTA COLLINS-I was keen to clarify that, because some time before you went to Nauru I had originated inquiries through our normal arrangements with DFAT as to CERTAIN MARITIME INCIDENT CMI 1424 SENATE-Select Wednesday, 1 May 2002 what travel might be available for those members of this committee who had an interest in attending the centres. We discovered shortly afterwards that your group had actually gone. Was the travel by VIP aircraft? Mr Hodges-No. The minister had gone with the shadow minister by VIP to Manus and to Nauru before us. The visit to Manus and Nauru, as I said earlier, was not really a part of IDAG, although two of us-Dr Mohammed Alsalami and I-are members of IDAG. We were not invited as IDAG members; the minister wanted a couple of us to go along, together with Vince McMahon. On the visit to Nauru, the two of us went-Alsalami and I-and also another gentleman from Sydney, an Azara Afghani called Gholam Aboss. He visited as well, basically because of the culture and the language. Those sorts of people are pretty valuable on those visits because they can gain the confidence of the detainees that I cannot, as a non-speaker of their language and appreciator of their culture. Senator JACINTA COLLINS-I appreciate that. I want to revisit the issue of truthfulness when it was being discussed with Senator Brandis. I noted at the time your comment that you felt there was a common thread throughout detention centres that people put their own construction or their own slant. I do not think you wanted to actually be drawn to anything stronger than that statement. When you made it at the time, I thought to myself-and Senator Cook's questioning led a bit in that direction-that that sounded fairly typical to me of general complaint handling experience. I suppose in a sense that is why I was curious about whether you had also had previous experience in complaint handling, particularly in this sort of environment, which has that extra factor of containment and idleness added into people's lives. Would you be prepared to accept that dealing with ascertaining facts, when people will put their own constructions on events, was something that was in one sense new to your experience? Mr Hodges-No, not really. I spent many years as a migration agent. There is no doubt that people wanting to come to Australia will often say all sorts of things and put their signature on documents containing so-called facts that are not true. A fair bit of that goes on with people who are trying to get to Australia. I believe that what I referred to is correct-that it is a common thread throughout the detention centres. Senator JACINTA COLLINS-Are you also saying that it is consistent with your experi- ence with others when you were acting as a migration agent? Mr Hodges-Yes, if you are talking about changing countries or having a desire to come to Australia-and I imagine the same thing applies if you want to go from a poorer country to a wealthier, more affluent country. That would probably apply to Canada and parts of Europe, the UK and the US. People tend to give the information that they think is going to advantage them the most, rather than the truth. Senator JACINTA COLLINS-I was a bit curious about a couple of the examples you gave. For instance, the woman who had blood taken: when you described that incident, you said her concern was that she had not been told the outcome. Later on, you said that actually it was a concern that the blood had been lost or misplaced. Mr Hodges-That was her concern-that it might have been lost or misplaced. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1425 Senator JACINTA COLLINS-But the fact to her, it appeared, was that she had not actually been told the outcome of the test. Mr Hodges-But she had been, because we subsequently checked with the medical centre. Senator JACINTA COLLINS-That was the bit that you did not tell us. Mr Hodges-I am sorry; I apologise if I did not. Senator FERGUSON-Yes, he did, Senator. Senator JACINTA COLLINS-No, he said that they had got the results back. He did not say that the results had then been translated to the woman. Senator FERGUSON-I thought he did. Mr Hodges-I may have; I apologise if I did not. We checked with the medical staff, because these are the sorts of things that stick in your mind: `Is this a real problem? Is there a deficiency to this degree in the medical attention? Let's go and check it out with the doctor; let's check it out with the senior registered nurse.' Usually, off the top of the head, they can tell you; they know the circumstances. The same happened on Manus and in Nauru, more particularly on Manus because we had more time to question two doctors-I think an Egyptian doctor, and a Thai doctor. They could tell you straight off, `We've dealt with that problem; it's so and so,' and you go to the next number and they say, `Yes, we know that case; it's so and so.' Yet they would have you believe that nothing had been done, that they had been given no drugs or no treatment. Senator JACINTA COLLINS-So it was not even a case that they misunderstood the na- ture of the treatment or assistance they had received? Mr Hodges-No, it was too frequent to be a misunderstanding. Senator JACINTA COLLINS-I have a final question about the advisory group. Have you had changes in the membership of the group since it was established? Mr Hodges-No. Senator JACINTA COLLINS-So this was not the body that Neville Roach stood down from. Mr Hodges-No. Senator JACINTA COLLINS-Which group was that? Mr Hodges-I was involved in a small inquiry with Gerry Hand, the former Labor minister, and Ray Funnell, who is on IDAG, on people-smuggling. I did about four or five jobs-one on the points test-but none of those inquiries had a high profile like IDAG, and I did another one CERTAIN MARITIME INCIDENT CMI 1426 SENATE-Select Wednesday, 1 May 2002 into the migration advice industry. So I have been involved now for probably six or seven years in total but with a very low-key approach. This one has much more notoriety; I do not know whether that is a good thing. Senator JACINTA COLLINS-Which was the body that Neville Roach stood down from? Which advisory group was that? Mr Hodges-It was not one that I was involved with. I cannot give you the name of it, but I know exactly the incident that you are referring to. It was a matter of only months ago now. Senator JACINTA COLLINS-Is that a body that is continuing on now, or do you not know? Mr Hodges-Yes, my understanding is that it is. Senator JACINTA COLLINS-So we need to look at their terms of reference as well. Thank you. Senator FAULKNER-Did you or, to your knowledge, any other member of your Immigration Detention Advisory Group actually receive information on the so-called certain maritime incident-the `children overboard' affair, as we all know it, from any sources other than the media? Mr Hodges-Not that I am aware of. Senator FAULKNER-I was thinking, for example, about Mr Ruddock, members of his staff perhaps, department of immigration officials or the like. Mr Hodges-No, I am not conscious of that matter at all. Senator FAULKNER-Thank you. CHAIR-Thank you very much, Mr Hodges, and once again I apologise for keeping you here past your departure time. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1427 [8.15 p.m.] O'KEEFFE, Ms Annmaree, Deputy Director General, Pacific, Contracts and Corporate Policy, AusAID TAPP, Mr Charles William Nicolas, Deputy Director General, PNG and Global Programs, AusAID RABY, Dr Geoff, First Assistant Secretary, International Organisations and Legal Division, Department of Foreign Affairs and Trade WISE, Mr James Joseph, First Assistant Secretary, South Pacific, Africa and Middle East Division, Department of Foreign Affairs and Trade CHAIR-Welcome. I note that you have said that you do not have an opening statement. You are therefore open for questions. Dr Raby-Yes. Senator FAULKNER-I have indicated to the witnesses and to you, Mr Chair, that I will place a series of questions on notice for both the Department of Foreign Affairs and Trade and AusAID, if that is acceptable. It may save a considerable amount of time this evening. There are a few questions I would like to ask witnesses at the table. I wonder if I could try to fill in a few of the gaps in my own knowledge and information that have become a little clearer to me since we last canvassed some of these issues, albeit mercifully briefly, at the Senate estimates committee hearing some weeks ago. In the first instance, Dr Raby, I wonder if you might indicate to the committee the broad lines of communication on the asylum seeker issues in and out of the Department of Foreign Affairs and Trade-how it worked and who was involved. This is in terms of your departmental organisation. Dr Raby-I am not sure if I can vouch for completeness, but I will do my best. As we canvassed in estimates, there was the Tampa task force that was created on, I think, 29 August against the background of that event. That was the principal group inside the department, although it involved other agencies who sat on that group, and we gave you the list of those agencies, I think. Senator FAULKNER-Yes, you did. Dr Raby-The purpose was coordinating information flows. The principal sources of information into that group, and through that group to the department, were a range of Defence regular intelligence reports, the Defence summaries; information channelled from other departments through me as the DFAT representative on the PM&C people-smuggling IDC; cable traffic internationally, in the normal course of events; information conveyed by other departmental representatives on the Tampa task force when they would come to those meetings; and, finally, media sources. CERTAIN MARITIME INCIDENT CMI 1428 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Of the senior executive of DFAT, was it mainly you who was involved? Dr Raby-Yes. I am not a member of the senior executive, but I would keep the senior ex- ecutive briefed on the issues as they arose in the Tampa task force or on relevant matters arising from the PM&C people-smuggling IDC. Senator FAULKNER-So did you report directly to the secretary; is that how it worked? Dr Raby-To the secretary and to the relevant deputy secretaries. Senator FAULKNER-What about your public affairs operation in DFAT? What, if any, involvement was there with your public affairs organisation? Dr Raby-The principal involvement was to provide summaries of international media comment. They would trawl through media comment that came in overnight and prepare a summary, which we would attach to the Tampa task force situation reps which were produced on a regular basis. They also helped prepare talking points for our embassies overseas to respond to questions. Senator FAULKNER-Can you briefly outline again the process of compilation of the Tampa task force sit reps? Dr Raby-Yes. They would be put together drawing on information from all the sources that I have outlined. The principal sources would be the Defence intelligence summary reports, the summary reports from Operation Relex and the cable traffic. We would also have a section on domestic media comment and then appended to that a section compiled, as I have just mentioned, on international media comment. Senator FAULKNER-Where were they compiled? Who wrote them in the department? Dr Raby-They were by departmental officers staffed from what was then the people- smuggling, refugees and transnational crime section in my division. They would be drafted on a rotating basis; it was a shift-work exercise. We would have present, during the period when we had the task force operating, representatives from the Department of Defence-at least one officer-who were basically the conduits through which we would get the Defence intelligence reports and summaries. Senator FAULKNER-So after a sit rep was drafted was there a signing-off process? Dr Raby-I or my branch head Rod Smith-who appeared in estimates but is overseas at present-would be the ones who would authorise the despatch of the sit rep. Senator FAULKNER-Was there an approval process, so to speak? Dr Raby-Either I or my designated representative Rod Smith would be the sole approver of the sit reps. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1429 Senator FAULKNER-In relation specifically to sit rep 59, can you say who drafted it, who signed off on it and what was the source of information? I am just focusing here on the famous 59. Dr Raby-Yes. I would like to take that on notice, if I could, and I will get back to you first thing tomorrow morning. Senator FAULKNER-I am happy if you take it on notice. If I could be clear on it, I would like to know who drafted it, who signed it off and, in the case of sit rep 59, the source information. Dr Raby-Yes. Senator FAULKNER-While we are at it, we might add in sit rep 60, if that is okay. Dr Raby-I am happy to do that. Just on the actual person who drafted it, can I just add a qualification that we may not have the rotation sheet still with us. We will try and do our best by asking. Senator FAULKNER-As always, Dr Raby, best efforts are always appreciated. Dr Raby-Thank you. Senator FAULKNER-But thanks for mentioning that in advance; I appreciate it. Can I ask you specifically for a little more detail about sit rep 59. My recollection is that at the time of the Senate estimates committee we were told that the Prime Minister, Minister Downer, Minister Reith and Minister Ruddock received copies of sit rep 59 at or soon after 9 a.m. on Monday, 8 October 2001. I just want to be clear that that is the case. Dr Raby-Yes. Senator FAULKNER-Thank you. We were of course told that sit rep 59 did not make any reference to children being thrown overboard. Could you perhaps confirm whether or not that is the case? Dr Raby-There was no reference to children overboard. The reference was to people in the water. Senator FAULKNER-If children had been thrown overboard and if Defence had credibly reported that incident, surely we could have expected it to be reported in a DFAT sit rep, couldn't we? Dr Raby-That aspect of the report-what is happening in an operational area-is based solely on what the defence department provided us. Senator FAULKNER-This would be an incident of such significance that it would be in- cluded. Isn't that right? CERTAIN MARITIME INCIDENT CMI 1430 SENATE-Select Wednesday, 1 May 2002 Dr Raby-If it were in the Defence summaries that we were receiving. Senator FAULKNER-Is it of more operational or non-operational significance to DFAT than it would be to Defence? Is that fair to say? Dr Raby-I am not sure of the point of the question. It is not a particular DFAT role we were performing there. We were a conduit for information for a range of our- Senator FAULKNER-We know it is of no operational significance to Defence. That has been made absolutely clear on umpteen occasions. The fact that children were thrown overboard-or not, as the case was-is not operationally significant in Defence. It is not unreasonable to think it may be a matter that is of more significance to the Department of Foreign Affairs and Trade than it is to Defence because it has no significance at all to Defence. But you tell me. I just want to know. Dr Raby-I am taking your statement on board- Senator FAULKNER-As opposed to overboard. Dr Raby-Yes. I cannot respond to that point about Defence. All I can say is that we based our sit reps on operational matters on what was provided to us from the Department of Defence. Senator FAULKNER-Who in Defence did DFAT actually have contact with in both the early stage and the later stages of the Tampa task force? How was that organised and who was it organised with? Dr Raby-The contact with Defence? Defence volunteered their officers. We did not have a selection process. Whoever came from Defence on rotation came. They sat with us and provided the conduit to Defence communications. Senator FAULKNER-Which is fair enough. But you basically accepted whoever was provided by Defence for that role? Dr Raby-Absolutely, as with any other department that participated on the task force. Senator FAULKNER-Yes, I am not doubting that for a moment. Did you keep a record of who it was through that time period? Dr Raby-I think we could provide you with that if that is what you wish. Senator FAULKNER-If you could, that would be helpful. Dr Raby-There may be gaps, given the nature of how this exercise was conducted, but we will check and provide what we can. Senator FAULKNER-In the broad again, without going to individual specifics, what sort of information would DFAT be receiving from Defence? I am thinking of signals, intelligence CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1431 summaries and that sort of thing. How would you describe the categories of information or input you would be receiving from Defence? Dr Raby-Defence intelligence summaries, as I have mentioned, and summaries of Operation Relex reports. Senator FAULKNER-So signals? Dr Raby-No, it came to us as documents, not as signals. That is all processed through Defence. We got what Defence had processed. Senator FAULKNER-And is that all-just the intelligence summaries and the processed Defence reports? Dr Raby-Sorry, I need to correct that; we occasionally received signals. Senator FAULKNER-You did? Dr Raby-Yes. But primarily we received a daily Operation Relex summary. Senator FAULKNER-Was the daily Operation Relex summary developed by Defence for DFAT or was DFAT just one of the agencies to which this was provided? Dr Raby-I believe that we were one of the addressees. Senator FAULKNER-Yes. Would you describe the information that you received from Defence as regular information just received as a matter of course, or would it be more ad hoc in its nature? Dr Raby-It was primarily regular programmed reporting. We would know roughly the time it would come. Senator FAULKNER-On basically a daily basis? Dr Raby-More than daily. Senator FAULKNER-I thought you said daily before. Dr Raby-When we were doing sit reps on a daily basis, they were reduced from many times a day to once a day. We would receive one of these at a time with the production of the sit rep in the morning, but we were able to get other reports like that if we requested at other times during the day if they were available. Senator FAULKNER-Do you keep the sort of information that you received for the devel- opment of, say, sit reps 59 and 60? Dr Raby-Do you mean the raw information that came in? CERTAIN MARITIME INCIDENT CMI 1432 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Yes. Let me not ask specifically about those. Generally, does DFAT keep the material that provides the basis for this reporting? Dr Raby-Yes, it is filed. Senator FAULKNER-You do? Dr Raby-Yes. We would file it like other documents. Senator FAULKNER-So it is all on file? Dr Raby-Yes. Senator FAULKNER-So the raw material that forms the basis of sit reps 59 and 60 would be on file? Dr Raby-I would imagine so. When you say it is all on file, we would normally file it. Senator FAULKNER-I am only asking about your procedures, Dr Raby. These are not trick questions or anything; I am just trying to understand. Dr Raby-I am just trying to answer you accurately. Senator FAULKNER-I understand and appreciate that. Dr Raby-Could I just say that all this is communicated electronically. It is coming on to secure computers and it is coming into many different points in the building on to secure computers. Senator FAULKNER-So you would be able to check for us, for example, if some of that could be made available for the benefit of the committee? Dr Raby-Because the originator of it is the Department of Defence, you would have to ask them. Senator FAULKNER-Not if you hold it. Dr Raby-As I understand it, we cannot release information that is generated by another department. Senator FAULKNER-But you have it on file and it has all originated from the Department of Defence? Dr Raby-This particular information we are discussing, yes; the Department of Defence is the originator. Senator FAULKNER-But there is no information that is an input to the preparation of these sit reps from outside the Department of Defence? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1433 Dr Raby-As I mentioned at the outset, diplomatic reporting was also included when relevant. Senator FAULKNER-So it is not all from the Department of Defence, is it? Dr Raby-We were discussing the Operation Relex and intelligence summaries from Defence. Senator FAULKNER-Yes, we are, as part of the raw material that forms the basis of the sit reps. Dr Raby-If your question is wider than Operation Relex, as I said at the outset when I set out the source of information, there were multiple sources of information. Senator FAULKNER-Now you have managed to completely confuse me, Dr Raby. I may be misunderstanding you. Let us be clear. In relation to Operation Relex, are you only using Defence sources? Dr Raby-Only using Defence sources. Senator FAULKNER-I did not understand that. I appreciate that clarification. Your other answer goes to the development of sit reps in the broad, outside the period of Operation Relex. Dr Raby-The sit reps covered much more than just Defence operational matters. Senator FAULKNER-Sure. Dr Raby-They obviously reported on international reactions and other developments that were relevant to be reported to ministers. Senator FAULKNER-I understand. Thank you for that. That is helpful. Did the Department of Foreign affairs and Trade at any stage, including either the Tampa task force or any other part of your department, receive the photographs which I will just define as those that misrepresented children thrown overboard? You know the photographs to which I am referring. Dr Raby-At estimates I said that, to the very best of my knowledge, we did not receive the photographs either electronically or in any other form. There has no been no reason since then for me to revise that advice I gave to you at estimates. Senator FAULKNER-So that is still the best advice you can provide this committee? Dr Raby-Yes. Senator FAULKNER-Fair enough. Could you indicate to the committee just in relation to the `children overboard' claims in the broad what, if any, information the Tampa task force or other parts of the Department of Foreign Affairs and Trade may have received on those claims? CERTAIN MARITIME INCIDENT CMI 1434 SENATE-Select Wednesday, 1 May 2002 Dr Raby-The only information, as I recall from our discussion on this in estimates, was information that I had picked up from the PM&C IDC. But it was never discussed as an agenda item or part of that formal discussion. Apart from what I had picked up from discussions on the margin at IDC, most came from the media on that particular issue. Senator FAULKNER-I recall you indicating that to me on an earlier occasion. I just wondered if there is now any more clarity about whether in any part of DFAT any other information had been received at any time about the `children overboard' claims. Dr Raby-To the best of my knowledge, no. No-one has sought to correct my comment to you at estimates. Senator FAULKNER-And that would go to either support for or refutation of the `children overboard' claims, I assume. Dr Raby-Yes. Senator FAULKNER-Have you had a pretty thorough check of the material that goes to form the basis of the sit reps 59 and 60 that have received a little notoriety over the past few months? Have you satisfied yourself about the sorts of issues that I am raising with you now, some of which I have touched on on an earlier occasion? Dr Raby-Yes, we had a look at that before estimates. We have not felt a need since estimates to go back and re-examine any of those issues in the light of the discussions at estimates. Senator FAULKNER-So you did not feel it was necessary to check? Dr Raby-We satisfied ourselves, I felt adequately, before estimates and there has been nothing that we have required to check since. Senator FAULKNER-I know that I asked you a similar question to this one in the estimates hearing, but I wondered about the thoroughness of the checking process given the significance and notoriety of the incident that we are talking about. Dr Raby-There is not a lot to check on this particular point, Senator. There is just the Operation Relex report. Senator FAULKNER-Were the children overboard claims-I am now looking in the broad in terms of your department's management of foreign relations-significant to the department in the sense of your broader role and responsibility? Dr Raby-They could have been, but I do not recall at the time that they were. Senator FAULKNER-They could have been, but you do not recall that they were. I mean- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1435 Dr Raby-Let me rephrase that. We, as far as I know, had no need to address those issues in the normal course of our work representing Australia overseas. Senator FAULKNER-Would you say that the Department of Foreign Affairs and Trade had any role or responsibility in relation to this whole question of whether or not children had been thrown overboard? I think you put it to me on a previous occasion that you considered yourself rather tangential; I do not want to put words into your mouth but I think that is a pretty fair way of describing what you thought was a reasonable assessment of the department's role. Dr Raby-I think the word that we agreed on at estimates was `peripheral'. Senator FAULKNER-Is that what it was? Dr Raby-Yes. Senator FAULKNER-That goes to show that you have a better memory than me. I knew it was something like that. I will let `tangential' be struck from the record and replaced with `peripheral'-it means much the same thing I think, doesn't it? So there was no reason to reassess that at all? Dr Raby-No, not at all. Senator FAULKNER-You also indicated at the time of the estimates committee when you gave evidence, and you have mentioned again tonight, that attached to the sit reps is the summary of national and international media items-I think that is a standard part of the sit reps, isn't it? Dr Raby-The national would be picked up and integrated into the body if there were specific things which were running that we felt should be included. The international was a separate annex; it was not called an annex but it was a separate part of the sit rep. I think that, as much as anything else, reflects the fact that the international part was prepared by our media liaison area. Senator FAULKNER-What is that area called? Dr Raby-That is our Parliamentary and Media Branch. It is now called the Images of Australia Branch. Senator FAULKNER-That is terribly impressive. CHAIR-Everyone immediately knows what it means! Senator FAULKNER-So that we are clear: media summaries on the asylum seekers issues were attached to sit rep 59 on 7 October. That is right, isn't it? Dr Raby-I have been reminded that the sit rep 59 came out on 8 October, not the 7th. Senator FAULKNER-That may be right? CERTAIN MARITIME INCIDENT CMI 1436 SENATE-Select Wednesday, 1 May 2002 Dr Raby-Yes. Because there was extensive media discussion of the issue we had not included much from the domestic media on that subject. I believe it had not been picked up by the international media at that stage. Senator FAULKNER-Okay, but let me come back to it: was there a media summary in sit rep 59 of 8 October 2001? Dr Raby-Only of the international media. I should say that the way we picked up the international media was very ad hoc. What we really did systematically-and that is where we add value-was monitoring the international media and putting that together. We rarely would provide any sort of systematic or extensive cover of domestic media commentary, on the basis that the ministers already had it-unless there was something particular overnight that we thought should have been given a wider airing. Senator FAULKNER-What about the reports that follow 59: numbers 60, 61, 62 and so forth? Did they have media reports attached? Dr Raby-I think they all had international media summaries attached. Senator FAULKNER-They all did? Dr Raby-Until towards the end. The whole thing petered out, I think I explained at estimates- Senator FAULKNER-Yes. Dr Raby-and towards the end we did not bother with international media summaries, mainly because there was almost no international media comment to report. Senator FAULKNER-Is that 60, 61, 62, or all of the subsequent ones? Dr Raby-Nearly all of the subsequent ones would have had some international media comment attached, but we dropped off the international media as it started to peter out. Senator FAULKNER-But what about national? No. 59 has got no national. Dr Raby-How we covered the national was very ad hoc. Senator FAULKNER-Yes. Okay. Dr Raby-I would have to check. I am happy to have someone go through them and indicate where we had national- Senator FAULKNER-By this stage-certainly by 9 October-this is a very major story, as you appreciate. You do know that background, don't you? Yes. What I am wondering is whether, in any of the subsequent situation reports, there is any national public affairs or media coverage of specifically the `children overboard' incident. Can someone tell me that? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1437 Dr Raby-To the best of my knowledge, no, because-for the reason you gave-it was such a big issue, and it was picked up by the separate media clippings that are a daily service the department provides to ministers and Parliament House. So it would just be duplication. The main thing with the domestic media comment was to try to only include it if it was something that would add value, or was particularly noteworthy but not running generally. Senator FAULKNER-So even in the national and international media coverage in sit reps 59 and 60 there is no mention of children being thrown overboard? Dr Raby-I would have to check the international coverage. What I recall is that, certainly in the early days, when we are looking at 8 and 9 October, it is most unlikely that there was international comment on that event. Senator FAULKNER-You might check it just so that we get absolute clarity. There is no need to check it for all subsequent sit reps to 59, just check it for 59 and 60. Dr Raby-I am very happy to do that. Senator FAULKNER-They are the ones that, as you know, have received some focus. Dr Raby-We can get back to you first thing tomorrow. Senator FAULKNER-Your public affairs area is called Images of Australia-this will be read in the Hansard by the one person likely to read this in about 100 years time and they will wonder what on earth Images of Australia was. I am sure it is very popular and everyone else knew that except me. That would be right, wouldn't it, Dr Raby? Dr Raby-I have no comment, Senator. Senator FAULKNER- Do you know whether at any stage Images of Australia-in other words, DFAT public affairs-or the Tampa task force or any other area in your department, particularly the Images of Australia area, did any checking of media reports of children overboard against the information held and produced in sit rep 59? Dr Raby-I could say almost categorically no, because it is not their function. They have got many functions, but on this particular aspect their function is to collect and collate the informa- tion. They would just do for us on international reporting a straight summary of the main issues running in the main international media. Senator FAULKNER-So did the department provide any direct advice to Minister Downer on this issue of children being thrown overboard? Minister Downer got a copy of sit rep 59, didn't he? Dr Raby-Yes. Senator FAULKNER-That does not mention children being thrown overboard, does it? Dr Raby-No. CERTAIN MARITIME INCIDENT CMI 1438 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Was there any advice going to Minister Downer that you are aware of, and I am now talking about departmental advice, again in the broad, on 8 or 9 October about children being thrown overboard-not about the accuracy of the claims but just about that issue in the broad? Dr Raby-To the best of my knowledge not at all, but I want to qualify that with the possibility that I may have discussed this with Mike Smith, who was at the time the head of Mr Downer's office. By that I mean that, being the department's representative at the PM&C IDC, although, as you recall, I was not there for the 7 October meetings, in my debriefing of Mike Smith-which was not on a regular basis, it was on an as needed basis-I may have mentioned hearsay on that issue to him. But, in terms of formal advice to the minister, the answer is no. Senator FAULKNER-But you may have had a conversation with Mike Smith? Dr Raby-I may have. I think I explained at estimates last time that I would brief Mike on an as needed basis after attending these meetings. I would give him a ring if there was something of note coming out of the meetings that required ministerial action or DFAT action. Senator FAULKNER-But you would have kept a record of that, wouldn't you? Dr Raby-No. Senator FAULKNER-You just rely on your memory? Dr Raby-No. The issues that came out of the IDC that were the responsibility of the department to follow up or action were very well defined and they were very much related to specific advice to posts, dealing with boats or whatever. We were not involved with, or had an interest in, the wider set of operational issues that would be discussed, unless it dealt with a particular foreign policy aspect, which is my responsibility. Senator FAULKNER-But you do not know whether you spoke to him or not? Dr Raby-I spoke to him on many occasions. Senator FAULKNER-But you do not know whether you spoke to him on this occasion and you certainly do not know whether you spoke about `children overboard'. Dr Raby-That is correct. Senator JACINTA COLLINS-But you may have spoken about hearsay? Dr Raby-I may have. Senator JACINTA COLLINS-If that were the case, what do you understand to have been the hearsay that may have been in your mind? Dr Raby-That there had been an event and that there were photos of that event. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1439 Senator FAULKNER-How did you know about the photos? Dr Raby-As I gave in evidence at estimates, there was discussion of photo evidence-I do not know the exact date, but it was fairly soon after it-in the margins of the PM&C IDC. Senator FAULKNER-That is right. But the truth of the matter is that no-one picked up, and this is a DFAT responsibility, it seems to me, the discrepancy between these screaming headlines in the newspaper that you refer to-there was so much media activity, and it was not even in your own sit rep-and the actual factual contents contained in the sit rep which were based on the Defence reports. There is such a glaring discrepancy, isn't there? The factual reports do not mention children being thrown overboard. We all know what was in the newspapers. But you accept that there is a massive discrepancy, don't you? Dr Raby-Not really. Senator FAULKNER-What do you mean by `not really'? It is not in your own- Senator BRANDIS-Let him finish his answer, for heaven's sake. Just because you did not get the answer you wanted-let him finish his bloody answer. Senator FAULKNER-I feel most chided! I think I have been interrupted. Dr Raby-It was not essential business for us. Very soon after the headlines came out there was also knowledge that there were photos and photographic evidence and the thing moved on. It was not of interest to us to pursue. Senator FAULKNER-But do you acknowledge that there is no mention in sit rep 59 of children being thrown overboard? Dr Raby-That is correct. Senator FAULKNER-So you do acknowledge that. Do you acknowledge that that is based on primary sources from Defence? Dr Raby-That is correct. Senator FAULKNER-Do you acknowledge that the sit rep is developed in the Department of Foreign Affairs and Trade? Dr Raby-Yes. Senator FAULKNER-So surely you acknowledge that there is a massive discrepancy between what is in that sit rep-based on factual information from Defence-and what I have described as the screaming headlines or what is happening in the media? Dr Raby-The role of the sit rep was not to shadow the headline coverage; it was to disseminate what was coming to us from Defence reporting. CERTAIN MARITIME INCIDENT CMI 1440 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Exactly. What was not coming to you from Defence reporting that was in the press? Dr Raby-We disseminated what we were receiving from the Department of Defence. Senator FAULKNER-So the answer to my rhetorical question is: the false suggestion that children had been thrown overboard. Senator FERGUSON-Perhaps you should answer all your questions yourself, Senator Faulkner. You are doing a good job of it. These guys could go home. Senator FAULKNER-Not at all. I would not say that. Every now and again I can come up with a better answer than a witness. Senator BRANDIS-Senator Faulkner has not worked out that it is the answers that are the evidence, not the questions. Senator JACINTA COLLINS-Thank you, Senator Brandis, you are most helpful. Senator FERGUSON-Well, you can let these guys go home if you are going to answer them all yourself. Senator FAULKNER-Did Minister Downer have any departmental advice when he made his statements reported on the AAP wire at 11.34 a.m. on Tuesday, 9 October 2001? Dr Raby-He would have had the sit rep from 8 October. I know that for sure. Senator FAULKNER-Yes-sit rep 59, which does not mention children being thrown overboard. Dr Raby-That is correct. Senator FAULKNER-Is that all? Dr Raby-That is all I can vouch for. Senator FAULKNER-So can you explain to me how Minister Downer manages to say this at 11.34 a.m. that morning- Senator FERGUSON-It is hardly a question to ask an officer: why a minister said something. Senator FAULKNER-I am sorry, but he is representing the Department of Foreign Affairs and Trade. Senator FERGUSON-But he is not responsible for what the minister says. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1441 Senator FAULKNER-I have not noticed a great propensity for ministers and ministerial staff to come before the committee, so we will just do our best with Dr Raby. Senator FERGUSON-You may be able to answer it yourself. Senator FAULKNER-He is going very well. There is an AAP report of 9 October 2001, in which Mr Downer is quoted as saying: But I'll tell you where they're not coming - to the Australian mainland ... They will not come to the Australian mainland ... And I don't think any Australian wants people who would behave in such a way as to throw their children overboard to come to our country, and they're not welcome in our country. Are you aware of that report? The only information from your department that goes to Mr Downer is sit rep 59, but he still makes that statement? Dr Raby-You will have to direct that question to Mr Downer. I would just- Senator FAULKNER-I will not be able to put it to him directly, Dr Raby. I can only ask you about the input to Mr Downer from the department. Dr Raby-I have answered that question, Senator. But I will just make the observation that, between Sunday and Tuesday, from your AAP report, there was a lot of ministerial comment on the subject. Senator JACINTA COLLINS-So he was relying on hearsay? Dr Raby-You will have to ask Mr Downer. Senator FAULKNER-We cannot ask Mr Downer. But I can ask you whether, as far as you are aware, sit rep 59, which does not mention children being thrown overboard, was the only information Mr Downer had when he also said, on Tuesday 9 October at 11.34 a.m: These people have behaved abominably right from the start ... The disgraceful way they treat their own children. Any civilised person would never dream of treating their own children in that way. But that was all he had: he only had the sit rep 59, which does not mention the issue at all? Dr Raby-From the department? Senator FAULKNER-From the department, yes. Dr Raby-That is why you will have to check with him on other sources of information. Senator FAULKNER-He may well have a solid base of support; Mr Reith might have told him- Senator JACINTA COLLINS-Shown him his photos. Senator FAULKNER-or Mr Hampton or Mr Scrafton-someone like that. CERTAIN MARITIME INCIDENT CMI 1442 SENATE-Select Wednesday, 1 May 2002 CHAIR-He may even have had the Liberal Party electoral lines for the day. Senator FAULKNER-When did the department first become aware of doubts concerning children having been thrown overboard? Dr Raby-Can I answer that in terms of when I became aware? Senator FAULKNER-Sure; I appreciate that. Dr Raby-I became aware with the media discussion of it. Senator JACINTA COLLINS-Which one? Dr Raby-I have no idea. Senator JACINTA COLLINS-The November discussion or the October discussion? Senator FAULKNER-Towards the end of November; 8 or 9 November? Dr Raby-I am not sure when it first started coming out in the media that there were ques- tions. Like everyone here, I follow the media fairly assiduously, but I cannot recall when the media started to report that there were doubts. Senator FAULKNER-I take that at face value and I accept that this probably means around 8 November, which is towards the end of the election campaign. I think that is probably when you mean, but, if it is not, you might let us know. That is very likely to be the case, Dr Raby. Can you indicate to us what happens within the Department of Foreign Affairs and Trade when these doubts become known to you? Was there checking done by the Tampa task force, or other parts of DFAT, to clarify whether children had been thrown overboard? Dr Raby-The Tampa task force was not a review or analytical body; it just dealt with the daily issues. So it was not an issue for the Tampa task force and there was no checking. Again, it was not something DFAT needed to, could or should have established an independent view on. I participated in the PM&C IDCs, and there was talk of a video and there was still talk of photos. On that basis, I advised those in the department who had an interest in the subject that there was talk of videos and talk of photos. Senator FAULKNER-So what you are saying to us is that the Department of Foreign Affairs and Trade did nothing to check? Dr Raby-We just relied on the advice that others were relying on. Senator FAULKNER-Yes, so the Department of Foreign Affairs and Trade did nothing to check? Dr Raby-We did not set in train any action to check-nor would we have or should we have. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1443 Senator FAULKNER-To your knowledge did Defence communicate any doubt about the claims to the Department of Foreign Affairs and Trade? Dr Raby-To my knowledge, no. Senator FAULKNER-You would know if that was the case, though, wouldn't you? It is a serious question. Dr Raby-I guess, at the outset of all of this, I come back to lines of communication. The communications into the department were through me as the representative on the PM&C IDC. This issue was not discussed or analysed or dealt with in the IDC. Senator FAULKNER-But, anyway, you are saying Defence did not inform you about that? Dr Raby-No. Senator FAULKNER-Fair enough. I accept absolutely the evidence that you give us. Senator FERGUSON-That surely goes without saying. The guy is giving evidence and you are saying `I accept the evidence'-of course you do. Senator FAULKNER-I am not letting it pass without saying it-I am just saying that I accept it. I do not always accept everything I am told by everyone, which is just as well. Senator FERGUSON-I am sure you do not. I have known you for too long. Senator FAULKNER-Dr Raby, to your knowledge did the Department of Foreign Affairs and Trade communicate, either orally or in writing, with any other departments or agencies over reports that children may or may not have been thrown overboard? Dr Raby-That is very broad. Senator FAULKNER-It is. Dr Raby-To the best of my knowledge, no. Senator FAULKNER-Can I ask you specifically about the photographs: when did the department become aware that the photographs-the two photographs of 8 October-did not actually stack up in terms of claims that they represented children in the water who had been thrown overboard? This is, if you like, a separate issue to the incident itself. I am asking specifically about the photos. Dr Raby-I understand, I think, but I cannot give you a date. The timing would coincide with the general public discussion of the evidence. Senator FAULKNER-Did you ever become aware that interviews had been conducted with asylum seekers from SIEV4? CERTAIN MARITIME INCIDENT CMI 1444 SENATE-Select Wednesday, 1 May 2002 Dr Raby-I am not sure. That may have been mentioned in passing somewhere. I really cannot be definitive. Senator FAULKNER-If you would not mind taking that on notice for me I would appreciate it-and also whether the Department of Foreign Affairs and Trade received your report on those interviews. Dr Raby-On the latter I could be categorical now. The answer would be no because, again, that would have come through me. But whether, at some point, someone had mentioned there were interviews that had been conducted I really cannot say. I will look into that for you. I honestly doubt that we will be able to give you a definitive answer on that. Senator FAULKNER-If you could-and could you indicate those who might have been involved and the nature of the account? If it needs any follow-through we can look at that. I would appreciate you taking that on notice if you would not mind. I did want to ask something specifically of AusAID. But I just want to be clear: can you indicate to the committee whether the only briefs or advice that goes departmentally to Minister Downer on children overboard- or matters relating to SIEV4 and hence the children overboard claims-goes in the form of sit reps? Dr Raby-To reiterate my previous comment, yes, in terms of formal written communica- tion. Whether I had a discussion with Mike Smith or someone else in Mr Downer's office fol- lowing one of the PM&C IDCs I really cannot say. Senator FAULKNER-But what you can say, Dr Raby, is that the communication will be limited to that. Is that a fair way of putting it? Dr Raby-Yes. Senator FAULKNER-Are you aware whether the minister's office ever received the `children overboard' photographs? Dr Raby-I have no idea. Senator FAULKNER-Are you aware whether there was any communication between the minister's office and the department on that issue of photographs? Dr Raby-Not that I am aware of. Senator FAULKNER-Would you be able to check that for me, too? If you are clear, categorical on each, there is no need to. Dr Raby-If there were, it would probably be of the oral exchanges I had with Mike Smith or someone from the office. I cannot recall, sitting here, that there have been. Senator FAULKNER-How do the sit reps go to Mr Downer's office-electronically? Dr Raby-Electronically, through the secure system. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1445 Senator FAULKNER-That is the standard operating procedure? Dr Raby-Yes or, when he is in Adelaide, he has the secure fax. A hard copy would then go on secure fax. Senator FAULKNER-Are you aware whether Mr Downer's office received signals reports from HMAS Adelaide, directly from Defence in this instance? Dr Raby-It is technically possible, I am advised, and there is a probability, but I cannot say whether or not they received those. Senator FAULKNER-Defence told us that. I am wondering whether you have any knowledge of it. Dr Raby-No. Senator FAULKNER-If that is the case, there are, effectively, no drop copies going to the department. They are going to the minister's office as opposed to the department. Dr Raby-This is the- Senator FAULKNER-I am talking about signals reports from HMAS Adelaide directly from Defence. Dr Raby-I cannot answer that. I do not know. What has gone to the minister's office I have no idea. Our reports came to us via Strategic Command. Senator FAULKNER-I assume some of the reports you get from Defence have common addressees-the department and the Minister for Foreign Affairs and Trade. Is that right? Dr Raby-It may well be. It could be or it may not be; it can go either way, to a dedicated single address or to a group of addressees. Senator FAULKNER-Can I ask you from the department and also the AusAID officer at the table whether you have any awareness at all whether any of this information was provided to Mrs Gallus. Mr Tapp -She was not the parliamentary secretary at the time. Dr Raby-I can't help you with that, Senator. Senator FAULKNER-That means the answer is no, I assume. Dr Raby-The answer is no; we have no knowledge of it. Senator FAULKNER-If it did occur, it did not occur via DFAT or AusAID? That is all I am asking. CERTAIN MARITIME INCIDENT CMI 1446 SENATE-Select Wednesday, 1 May 2002 Dr Raby-The answer to that is yes; it did not occur via DFAT or AusAID. Senator FAULKNER-Chair, the only other questions I have are to AusAID officers, unless something else arises. Shall I come back and ask those a little later? Other senators might have questions. CHAIR-Are there any questions from other members of the committee? I have some questions for Dr Raby. Senator Faulkner read to you earlier a statement made by Minister Downer. Senator Faulkner, was that statement made on 8 October? Senator FAULKNER-No, I believe it was the 9th. I will pass it to you. CHAIR-No, I do not need to go over the terms of the statement. It mentions children over- board, which is the part of the statement that I want to refer to. I think it has been established- on my count about five times you have replied that the sit rep did not contain that piece of ad- vice that children were thrown overboard. Did Mr Downer come back to you, in view of that non-item in the sit rep, and ask why you were not advising him of that? Dr Raby-No. CHAIR-Did he come back to you subsequently at any time to ask for more or better information about this alleged incident? Dr Raby-No. CHAIR-Is Minister Downer in the habit, if he thinks the information flow is inadequate, of going back to the department and asking why? Dr Raby-He may have thought the information flow was adequate. He would know that we had a limited role in this. We had no opportunity to collect, or any role to establish a position on this. CHAIR-He knows you are on the IDC? Dr Raby-Yes. CHAIR-He knows you are picking up the defence department information flow, and he knows that you would be privy to whatever is scuttling around in the upper reaches of the Australian Public Service at this level? Dr Raby-Yes. CHAIR-So it is reasonable, if he had this information and spoke about it publicly, for him to ask his department for more and better particulars, isn't it? Dr Raby-And it may be that, in the conversations I have had with Mike Smith after the IDC meetings, I have referred to the existence of photographic evidence. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1447 CHAIR-On 9 October you would have done that? Dr Raby-No; whenever. I am just saying you have not put a timeframe on those questions. Senator JACINTA COLLINS-What you described earlier as hearsay. Dr Raby-Yes, that there was photographic evidence and that was enough. Senator JACINTA COLLINS-There was hearsay about there being photographic evidence. Dr Raby-Sorry? Senator JACINTA COLLINS-I am trying to understand clearly what you are saying. You are saying that you may have discussed with Mr Smith that there was hearsay about there being photographic evidence. Dr Raby-Yes. What I would have said was that people at the IDC are in the margins saying there is photographic evidence. Certainly, for myself, I took that as the end of the matter. Senator JACINTA COLLINS-But you took it as hearsay, whereas you took what you were receiving from Defence as factual. Dr Raby-Yes, because it was communicated through formal channels to us. Senator JACINTA COLLINS-Yes, but you never identified that discrepancy, whereas within Defence, by 10 October, they had. CHAIR-My point is that Mr Downer never came back to you, and you cannot specifically remember informing his office of anything in addition to what was in the sit rep about children overboard? Dr Raby-That is correct. CHAIR-Yet this was a banner headline on every newspaper in Australia. Did I understand you to say that you prepare talking points for foreign posts on matters associated with this issue? Dr Raby-I will have to check whether it was with this issue. We were doing it with the Tampa issue. I will have to check whether we did anything. I cannot recall that we did anything specifically on this. My memory is-again, I would like to qualify it-that there was not a great deal of international interest that required a formal diplomatic response, whereas on the Tampa, we made representations. CHAIR-We made representations from foreign posts to foreign capitals? Dr Raby-Yes, to explain the circumstances with the Tampa, because it dealt with a ship from another flag state. There was considerable intergovernmental interest in the Tampa. CERTAIN MARITIME INCIDENT CMI 1448 SENATE-Select Wednesday, 1 May 2002 CHAIR-Have you prepared talking points for foreign posts after it became publicly known that the photographs were not true, that they were not of the event that, during the election campaign, they were alleged to be of? Dr Raby-No, not that I am aware of. I will just check that now. No. CHAIR-Has there been foreign reporting of that deceit? Dr Raby-I think some of the issues have been covered in foreign media. I can check that for you. CHAIR-If they have been covered in foreign media, would it be normal for you to prepare talking points in case posts are asked questions? Dr Raby-No, not for media reports. It would just depend on the level of interest. CHAIR-There is a fair level of interest in illegal immigration in the world at the moment, isn't there? Dr Raby-Yes. CHAIR-And there is a fair bit of international knowledge about the issues in Australia on this matter? Dr Raby-The detention issue, yes. CHAIR-But also about the border protection issues? Dr Raby-The offshore processing, yes. CHAIR-And the interception of suspected illegal entry vessels? Dr Raby-Less so. CHAIR-We are talking proportionately, but I am just wanting to establish that there is. Dr Raby-As you correctly say, the illegal immigration issue is of interest, and not only Australia's involvement with it but many other countries are dealing with a similar issue. CHAIR-Have you prepared any talking points on those issues for foreign posts? Dr Raby-Not that I am aware of. I have just been reminded that we have a lot of information on this issue on the web site, particularly through our link into DIMIA's web site. That is basically what people, posts, will draw their information from-the web site. CHAIR-This is publicly available? CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1449 Dr Raby-Yes. As I said, Senator, the main period, or the only period, really, when I can recall us doing talking points specifically for posts was in the context of Tampa. That reflected the intergovernmental aspect of that issue, and that therefore was an important role for the department to address. CHAIR-You have mentioned your discussions with Mike Smith, the chief of staff- Dr Raby-Former. CHAIR-The former chief of staff. When you pass information to him do you assume that it gets passed to the minister? Dr Raby-Yes. CHAIR-That is interesting. Are you aware of what we have come to know today as SIEVX, the vessel that capsized with 350-odd people drowning? Dr Raby-Yes. CHAIR-There was publicity about this in Indonesia. Have any talking points been prepared about that item? Dr Raby-No. CHAIR-Has Mr Downer been briefed in any way by the department about that issue? Dr Raby-I would have to take that on notice, I think. The sit rep seems to be the only brief that we provided on that. CHAIR-It is argued that the concern about that loss of life on the Indonesian side gave rise to the Indonesians being willing to come to a conference in, I think, Denpasar, was it not? Dr Raby-In Bali, yes. That is a big connection. We could talk about that- CHAIR-I am saying it is argued. Dr Raby-I just want to be clear on this. Because it was such a terrible and dramatic event, there was a lot of cable traffic. When you ask, `Was the minister briefed?' he would have been receiving reports from Jakarta, and the embassy was very assiduous in following this up. There is a lot more on an issue like this than just the sit rep commenting on it-not commenting; reporting facts is the case with the sit rep. CHAIR-What I am asking is: was there any briefing of other posts outside of Jakarta or Canberra on this issue? Dr Raby-No formal briefings- CHAIR-None at all? CERTAIN MARITIME INCIDENT CMI 1450 SENATE-Select Wednesday, 1 May 2002 Dr Raby-as far as I am aware, no. CHAIR-They would read the cable traffic, of course. Dr Raby-Yes. CHAIR-Have there been any discussions about trying to tie down the actual circumstances of SIEVX: where it may have foundered; how many people were involved? Dr Raby-The post in Jakarta has been very active in trying to establish all the facts and circumstances, and that is a big post with defence, police and others attached to it. CHAIR-Are you aware of the advice the defence minister has given the Leader of the Opposition in a letter about that? The advice was tendered in evidence today. Dr Raby-No, I am not. CHAIR-No, okay. What I will do is see that you do get a copy of that. It is part of the record of this hearing, and I will put on notice now the question that follows from you seeing that advice as to whether or not that matches your understanding of the circumstances. There is some concern about where this vessel may have actually gone down. I have no further questions. Senator FAULKNER-This is a very brief issue for AusAID. This is a matter that I certainly know very little about, so I quickly acknowledge my ignorance on this. I have just seen this press release from Pacific Petroleum-and I do not know whether you have seen it or not-headed `Australia's refugee crisis creates financial hardship for Pacific company'. Have you had that press release drawn to your attention? Ms O'Keeffe-Yes, I have, Senator. Senator FAULKNER-I have literally only in the last half-hour had a very brief look at it. The gist of it appears to be, as I understand it, that Pacific Petroleum have announced that they have taken Nauru to court over $US1 million of unpaid fuel bills. If I can just sum it up in a sentence, I think that is right, isn't it, Ms O'Keeffe? Ms O'Keeffe-It would seem that Pacific Petroleum is unhappy with the way in which Nauru has responded to its debts to the company, yes. Senator FAULKNER-Do you have any more understanding of Pacific Petroleum's argument that the government's funding has undercut them? Ms O'Keeffe-Senator, this is an issue that has been brought to our attention on a couple of occasions by Pacific Petroleum, and it goes back several months. Basically, Pacific Petroleum, we understand, has in past years provided Nauru's petrol needs. Clearly, the commercial arrangements between Nauru and Pacific Petroleum are not things that we are privy to. When it was agreed-as a result of the agreement between Australia and Nauru under the first administrative arrangement-that we would support Nauru in its provisions of fuel, of course CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1451 we had to continue to abide by Australia's own procurement guidelines, which meant that we used the period offer that we currently have for this type of operation and got that company to actually go out in a public tender to seek the best value for the Commonwealth in the provision of fuel for Nauru. Pacific Petroleum has not been able to satisfy the conditions of those various tender offers. Senator FAULKNER-Do you think there is some truth to the thrust of this, that Pacific Petroleum has been left with $US1 million in unpaid bills? Ms O'Keeffe-As I said, we cannot comment on the commercial arrangement between Nauru and Pacific Petroleum. That is not something we have been party to at all. It is very much in the realm of Nauru, as a sovereign country, to deal with its previous fuel arrangements. We currently, in accordance with the first administrative arrangement, provide a certain amount of Nauru's fuel requirements, and that is what we can comment on. Pacific Petroleum have not been able to satisfy the requirements of the Commonwealth's own procurement guidelines to enable us to purchase fuel through Pacific Petroleum. Senator FAULKNER-Understanding that, perhaps you could comment on the issue raised in this press release about whether this situation is preventing fuel distribution to other smaller, poorer Pacific islands. Ms O'Keeffe-That is very much an issue for Pacific Petroleum. Senator FAULKNER-I thought this might actually be an issue more broadly for AusAID or DFAT? Ms O'Keeffe-No, it is not; it is a commercial arrangement. How Pacific Petroleum has shaped itself in terms of its profitability et cetera is something that only Pacific Petroleum can comment on. Senator FAULKNER-I understand then, from what you are saying, that there is no involvement of AusAID or the Australian government in this legal case? Ms O'Keeffe-Pacific Petroleum may decide to pursue proceedings against Australia. However, that is something that is still to be determined. Senator FAULKNER-Sure. But at this stage, to your knowledge, there is no involvement of Australia or AusAID in this legal case? Ms O'Keeffe-At this stage we are still waiting to see what the situation may be as far as Pacific Petroleum's position is concerned. Senator FAULKNER-Are you saying to us that you are not sure whether or not you will be drawn in? And that is fair enough. I am just trying to understand the situation. Ms O'Keeffe-As I said, this company has had reason to question the Commonwealth's procurement guidelines on a number of occasions. CERTAIN MARITIME INCIDENT CMI 1452 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-I am not sure if this is a question for AusAID or DFAT: as we speak, does this situation mean that Australia has had to take some responsibility beyond what ordi- narily would be the case for some of these smaller Pacific islands mentioned in the press release and described-and I am not putting anything stronger than that; I do not pretend to be an ex- pert, as I said-as having been left in the lurch because of this supply crisis? Could the appro- priate officer at the table comment? Ms O'Keeffe-As I said before, only Pacific Petroleum can comment on its particular operations and how it can or cannot provide fuel to other smaller countries. Other shipping lines operate in the Pacific, and it is not to say that they, too, can or cannot provide fuel. Senator FAULKNER-We will hear more about it. As I had this drawn to my attention recently and you were at the table, I thought I would ask. It does have some bearing, as I am sure you appreciate, on the terms of reference of this committee. The link is drawn, at least, by Pacific Petroleum. Whether you do or do not acknowledge the validity of that is another issue. Thank you for your responses. CHAIR-Have you put some questions on notice, Senator Faulkner? Senator FAULKNER-I have, but not about this. I will leave it to others to address this particular issue. CHAIR-I will look at your questions and, if I need to, I will put some additional questions about this issue on notice. Are there any further questions? Senator JACINTA COLLINS-There is just one issue. Dr Raby, there was one matter I wanted to go back to. Ordinarily, in a committee of this nature, we would have a submission from you and would ask questions on that, but I have just been reminded that we have little information about what may have occurred in Indonesia post the SIEVX incident. You indicated to Senator Cook that our post in Indonesia had been active in seeking to investigate that matter. If you cannot do it now, could you take it on notice to provide the committee with up-to-date information about how matters have progressed post that incident in Indonesia? By that I mean the pursuit of the people smugglers, the two people-according to Tony Kevin's evidence-that were picked up by Indonesian authorities and whatever else may have occurred in relation to that incident in Indonesia. Dr Raby-I am happy to do so, Senator. You ask a very big question. There has been a tremendous amount of activity, so to compile all of that will take a little while, I should imagine. Senator JACINTA COLLINS-I wonder also if you could provide us with any information on those asylum seekers who were returned to Indonesia and their fate upon return. Dr Raby-I will take that on notice. That is, I think, a DIMIA responsibility, not ours. Senator JACINTA COLLINS-So the ships that were towed or escorted back to the Indonesian coast remain a DIMIA responsibility, do they? Dr Raby-Sorry. There were no ships returned to the Indonesian coast; they were returned to just outside the Indonesian contiguous zone. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1453 Senator JACINTA COLLINS-No, there were four SIEVs returned to the Indonesian coast. Dr Raby-Not into Indonesian territorial waters or the contiguous zone. Senator FERGUSON-They were on their own after that. Senator JACINTA COLLINS-Sorry? Senator FERGUSON-They were only escorted so far, then they went on their own after that. Dr Raby-Yes. Senator JACINTA COLLINS-Well, it was the islands of Roti- Dr Raby-No, we need to be clear: no Australian vessel entered Indonesian territorial waters. Senator FERGUSON-They went on their own. Senator JACINTA COLLINS-Okay then, they may well have been dropped. Dr Raby-They went under their own steam into Indonesian territorial waters and arrived onshore. Senator JACINTA COLLINS-Okay, let's get past the language issue. The intent of my question is the state of knowledge we have as to the fate of those people upon arriving in Indonesia. You indicated a moment ago that you thought that that was a DIMIA responsibility and I expressed surprise because I thought they had essentially been handed back to Indonesian authorities. I wonder whether, through our post in Indonesia or through other means, DFAT has information as to the fate of such people. Dr Raby-I am happy to help; I will just have to check because the reports on that will come predominantly from IOM, the International Organization for Migration. Senator JACINTA COLLINS-Okay. Dr Raby-Let me see what we can do; we will be happy to do what we can. Senator FERGUSON-In the absence of Senator Bartlett, who had requested that AusAID specifically be here, I want to ask two questions-I do not know whether they are for Mr Tapp or Ms O'Keeffe. One question is: did you have any involvement in the development of the so- called Pacific solution policy? Did AusAID itself have any involvement? Mr Tapp-No. Senator FERGUSON-The second question, which I think is more important, is: has there been or is there proposed to be a reduction in Australian financial assistance to other countries CERTAIN MARITIME INCIDENT CMI 1454 SENATE-Select Wednesday, 1 May 2002 or a reduction in the resourcing of aid programs as a result of any financial commitments under the Pacific solution? Mr Tapp-No. Senator FERGUSON-Thank you. They are the only two questions I have, Chair. CHAIR-Thank you very much, Dr Raby, Mr Wise, Mr Tapp and Ms O'Keeffe, for appearing before us. We will conclude your evidence at this point. There will be some questions on notice, however. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1455 [9.41 p.m.] HARRIS, Ms Susan Gail, Member, National Refugee Team, Amnesty International Australia PACE, Dr John, Expert, Amnesty International Australia THOM, Dr Graham Stephen, Refugee Coordinator, Amnesty International Australia CHAIR-Do you have an opening statement to make? Ms Harris-Yes, we do. Amnesty International welcomes this opportunity to address the Select Committee on A Certain Maritime Incident. We wish to focus on part (d) of the terms of reference, which concerns the nature of the agreements and operation of the arrangements known as the `Pacific solution'. The measures and the practices which combine to make up the Pacific solution represent an unprecedented and audacious assault on the purpose and the spirit of the 1951 Convention Relating to the Status of Refugees, an instrument clearly designed to give effect to the right to seek and enjoy asylum in state parties to it. It also represents a bald attempt to avoid judicial scrutiny of virtually all aspects of Australia's implementation of its protection obligations to asylum seekers entering or seeking to enter Australia in an unauthorised way. Far from being a solution, as a matter both of policy and law the scheme raises more questions than it answers and creates more problems than it solves. Amnesty International's major concerns can be broken into two component parts, the first being threshold questions of whether and on what basis a scheme such as the Pacific solution might be permissible at international law, and the second being what the human rights implications are in the implementation of such as scheme. I will just briefly take the committee through the details of our submission, which I am sure you have already read and thumbed through at some leisure. Under the threshold questions, Amnesty International is not satisfied that there is or that the Australian government has-and after 10 days you will be in a good position to help us judge this-a sound international legal basis for the range of measures which together make up the Pacific solution. In its decision of Ruddock v. Vadaris the full Federal Court did not address or analyse in any substantive way the international legal obligations of denying persons entry to Australia for the purposes of preventing them from making applications for asylum on its territory. In that sense, it cannot be said to offer any authoritative guidance on the applicable international law. Moreover, in the course of argument counsel for the Commonwealth dedicated almost no time to the question of international legal implications of the Commonwealth's conduct. Subsequent legislation has impeded any further opportunity for legal scrutiny and analysis, at least in the Australian judicial system. In view of the fact that the measures taken by Australia in this instance are both extraordinary and unprecedented, legal authority on this issue is necessarily unsettled. In such a situation, Amnesty International calls on the Australian government to present to us a clear and cohesive legal basis for the various elements of the Pacific solution. We are concerned that such radical steps have been taken unilaterally, in haste, in an ad hoc manner, without any adequate legal CERTAIN MARITIME INCIDENT CMI 1456 SENATE-Select Wednesday, 1 May 2002 basis that we have been able to discern and without public consultation, and have placed a large number of already extremely vulnerable individuals into a more precarious situation. Some of the more pressing questions which we would be asking the committee to address would be the legality or otherwise of preventing people seeking asylum, as we have stated. It seems to us that the basic premise of the agreements with PNG and Nauru is that Australia is legally entitled to send people seeking asylum to another country, and we would question that assumption. Amnesty International considers this premise is not well founded and the policy of preventing people from entering Australian territory and forcing them to land elsewhere violates Australia's international legal obligations. The reasons for this view are set out in three main phases. The first argument is that our actions breach non-rejection of asylum seekers at the frontier, which is EXCOM conclusion 22; the second is that it breaches article 31 of the refugee convention which says that a state shall not impose penalties for illegal entry; and the third is that Australia has inappropriately used the safe third country doctrine. Then, even though we have these basic threshold objections to the Pacific solution doctrine, and that is as far as we are willing to go, we also have some serious questions about the implementation of the scheme and the human rights questions that arise from the implementation of the scheme, on humanitarian grounds. These are that the detention schemes that have been created violate international standards, that people might be detained indefinitely even if they have been found to have valid claims for protection, and also that the agreement does not ensure the respect for rights of people seeking asylum. The main areas we have looked at have been access to legal procedures, access to UNHCR-as you will know, UNHCR still has not been able to visit PNG-detention of children and all the issues that surround detention of children both here and overseas by Australians, communication with family and the outside world, and access to health care. We have also made some comments on the Australian government's approach to people smuggling and the issue of burden sharing. We would say this is a key issue-the rhetoric of burden sharing. We would say a precedent for burden sharing would be Australia's approach to Indo-Chinese refugees in the late 1970s and 1980s, where we approached that problem as part of a truly international solution, a durable solution under the refugee convention, versus what we have taken which is basically an ill thought out, unilateral action. CHAIR-Thank you. Do either of your colleagues have supplementary or additional statements to make? Dr Pace-Amnesty International asked me to visit Nauru in November last year and I did so. In the course of my interviews with the various refugees-or potential refugees-there, after they started to give me a whole set of accounts of their experiences, I invited them to give me in writing in their own language their own statements. I would like, with your permission, to share with this committee those relevant statements that I received. Some are in Dari; some are in Arabic. I have some translations of them-in fact all of them except the Iraqi one which is rather long and has not been completed yet. Senator BRANDIS-Mr Chairman- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1457 Senator FAULKNER-I have got no problem with Dr Pace sharing anything with the com- mittee but I just raise this issue as a point of order, Mr Chairman. CHAIR-I am intrigued to see whether both you and Senator Brandis have the same point of order, but go ahead. Senator FAULKNER-Does Senator Brandis want to take a point of order? Senator BRANDIS-No. I will hear what you say. I was just going to raise a problem. Senator FAULKNER-The point of order I take is that Dr Pace and our witnesses are probably not aware-because I think only one of our communications from those on Manus Island has been made public-that we have received at least three communications from them and my understanding is that only one of those three has been made public. I think we need to be careful. This does not go to the spirit of what you are doing at all, Dr Pace, but I am trying to use deliberately very general language here. We have asked a number of those who are seeking refugee status in this country to formally give evidence to this committee today. For their own reasons, the group that represents those people have decided not to do so. My only concern- and the reason I am taking the point of order-is that I am sensitive, in this matter, to the wishes of those people. Dr Pace, I certainly do not want you to misinterpret what I am saying, and I am trying to be very careful in what I am saying. You would not be aware of this background. This is information that has come to the benefit of this committee at a private meeting, and I am a little concerned that there may be a view from some of those people, given the nature of their communications with us, that they may feel in some way disadvantaged if you were. Mr Chairman, I suggest that we have a cautious approach, and perhaps respectfully suggest to Dr Pace-understanding full well what his motivations are and understanding that they are undoubtedly very positive-it might be best for him to check with those people. If they are happy to provide those statements to us, I think we would be very happy to receive them under those circumstances. CHAIR-He may have done so. Senator FAULKNER-He may have done so but he did not indicate he had done so, and I wanted to say this before he started to read it into the record. Senator BRANDIS-I support the point of order. I agree with what Senator Faulkner has said. I was going to raise a slightly different ground of concern, and it is this: we have proceeded in this committee to take evidence from witnesses; we have not proceeded to take evidence from witnesses who have gone out and gathered evidence of their own, as it were, secondarily from other witnesses. The only exception to that has been where documents have been prepared that have formed part of a contemporaneous account of events, but this is a little different, I think. If the people who have given statements to you, Dr Pace, want to make a submission to the committee in the form of those statements, then they should put them forward, as primary witnesses on their own account, rather than speak through you. Senator JACINTA COLLINS-I am not going to buy that. I accept what Senator Faulkner has raised as concerns. I do not accept what Senator Brandis has raised as concerns. We have CERTAIN MARITIME INCIDENT CMI 1458 SENATE-Select Wednesday, 1 May 2002 used countless examples of material of a secondary nature. In fact, I think I referred to this headline today, Senator Brandis, based on secondary reports. With all due respect at this hour of the day, you are talking a lot of-I will not say. Senator FAULKNER-Can I speak further to the point of order? CHAIR-Everyone has spoken at some length to the point of order. If there is additional material, please put it. Senator FAULKNER-There is additional material because I am really responding to your aside to me, Mr Chairman, which I think was a reasonable and valid one. If the witness has been able to check this course of action with those who provided the statements, that is a very different situation. My concern, and the reason I took a point of order, was I was not aware of that and it is a bit late after you start to read these things into the record to worry about the technicalities then. I just wanted to acknowledge your aside to me, Mr Chairman, because I thought it was a proper and valid one. CHAIR-Thank you. People have taken their points of order. I trust no one else is wanting to take- Senator FERGUSON-On the point of order: if the statements that are to be read are in written form they could, in fact, be tabled by this committee and not become a part of the Hansard. We could have them as part of our record. They may coincide with the representations that we already have from the people on Manus Island. I do not know; I simply do not know. But if they are not read into the record and are simply tabled I think is a safer way of proceeding-if they are in written form. CHAIR-I thought they were referring to Nauru. I did not catch the Manus Island thing. Senator FERGUSON-I am sorry: Nauru. I apologise. I meant Nauru. CHAIR-Points of order have been called. I think the simplest way is for me to ask you: are the statements that you are proposing to put into the evidence being put in with the approval and understanding of the people who have made them? Dr Pace-When the statements were made to me I happened to be the first non-official person to meet with these people. They took the opportunity to communicate their own experiences the way they did. I asked them what they wanted to do with them and some said that they would like them to be shared. Others left it to my discretion. As I was an Amnesty delegate, I sent them to London as part of my report to Amnesty, where they remain. When this opportunity arose, I was ignorant of the procedures that have since developed which are by far more effective from the evidentiary point of view than having something that was submitted to me-an intermediary, as I have been called. Perhaps the best procedure would be, as and when the committee has the opportunity to interview these people in Nauru, to mention to them whether they would have any objection to sharing those statements that they made in November. At that juncture, perhaps the committee may wish to avail itself of them. As far as I am concerned, there is no better source than the original. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1459 On the relevance issue, my reference to relevance was with regard to the mandate of this committee because I have 76 or so pages of manuscript, some of which has manifestly already been addressed-like twins that were separated who wanted to be reunited and things like that. It was self-evident, so I do not wish to use it. And there are not only Tampa people; there are other people. CHAIR-I am going to have to rule on this point of order in a minute. Senator BRANDIS-I just wanted to make one point and it is the point that if the statements come from the people-this is your point, really, Senator Mason-who made them rather than through you they can be tested and these people can be asked questions about them. You cannot be asked questions about them because you may know the answers but you may not. We cannot receive untestable evidence. It is not the way any fact-finding body would ever proceed. Dr Pace-I am agreeing with you. CHAIR-We are in the position, it seems to me, of my having to make a ruling on this point. Senator FAULKNER-What about the witness statements of the sailors on HMAS Adelaide? Senator BRANDIS-I am just concerned as to what weight we can put on them. Senator JACINTA COLLINS-You can put what weight on it that you want to. For goodness sake! CHAIR-I think it is about time I ruled on this and we moved on. Senator FERGUSON-You started this, Senator Faulkner. CHAIR-The reason for the concern is that we sought evidence from people on Manus Island and, among a range of issues that they raised, one issue that they raised was whether we could guarantee that they would not be discriminated against if their names became known in assisting this proceeding. Because they are out of our jurisdiction, we cannot guarantee it. We would like to be in a position to do so, but we cannot. Based on that, their view on Manus was not to proceed other than by written communication because their fundamental concern is to achieve refugee status and be settled in Australia. That is the concern and we are bound to respect that. It is in that context that I think one part of the point of order has been raised. The other part of the point of order goes to the efficacy of the statements, the ability to interrogate the people who have made them and the selection of the statements as to relevance, or whatever. But I understand that what you are saying now is that you are not proposing to enter them into evidence. It may well be that you should take our concerns on notice. I am not suggesting that I will rule this way-I want to simply announce a consideration and give some thought to it before I rule that way-but I foreshadow it now that it may be that we can take them in camera if that can guarantee the security of these statements. That is an option, but I am not ruling that way just now. However, I understand that you are not going to proceed to put them into evidence. Is that correct? CERTAIN MARITIME INCIDENT CMI 1460 SENATE-Select Wednesday, 1 May 2002 Dr Pace-I agree. CHAIR-On the other question, I think it is fair for you to tell us what you understand to be in the minds of these people and be open to be examined on it. But I would simply add a caution that you not identify individuals. You could give us an idea of that. Dr Thom, do you have something additional to raise? Dr Thom-In response to Senator Ferguson, they are in a written form and could be handed in as such, and if they could be taken in camera that would also be appreciated. In response to Senator Brandis, we have not edited them in any way, shape or form. These are the written statements from the individual. We believe that any committee that is looking at the Pacific solution should take on board the voices of those who are most affected by that solution, and if there are statements available the committee should avail themselves of those statements. I would respect any ruling you make as to whether in camera could protect those individuals. Otherwise, we are happy to take it on notice. I hope you would appreciate that, given the difficulties of contacting people on Nauru-which you are well aware of-actually getting their consent at this stage would be somewhat difficult. Therefore, if we are unable to do so, we would have to relay that back to the committee. CHAIR-I understand that entirely. Senator BRANDIS-It is only a process related question, Dr Thom. We have received a plenitude of evidence in this committee and I think every, single piece of evidence we have released-if my memory serves me correctly. It is not as if we want to avert our eyes from relevant facts; it is purely a question of process. Senator FAULKNER-It is actually a question of rights. CHAIR-We are now debating- Senator FAULKNER-We are, but I am just responding. CHAIR-All right, respond and move on. Senator FAULKNER-It may be a question of process, but I am always concerned-and I want you to understand this-about committees covering up. I do not like in camera evidence. I think what you have to say ought to be recorded and heard by all those who have an interest in these matters. Frankly, your evidence is going to be significantly devalued if it is taken in camera, because only committee members will have the benefit of it. That would be very unfortunate, because it is something that we have not done for any of the other evidence we have adduced all the way through. The point is that we have got a lot of statements from a lot of people during this inquiry-from many sailors, for example, on board HMAS Adelaide-so it is not without precedent to have those sorts of statements provided. My only concern is whether there might be a feeling after the event that the rights of some of these people who, as we know, are in a very sensitive position may be affected. I am sensitive to that and I hope you appreciate the point I make. I interrupted the witness at an early stage in his evidence because I did not want the witness to be placed in the same position as I felt the com- mittee might be in. I must admit that my concerns have been allayed in part in relation to some CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1461 of those witness statements. It is a matter of concern. Yes, there are always process issues, but there are also the rights of the individuals involved. We have had the very recent experience- literally as late as lunchtime today-of a group of people who decided not to provide evidence in any form to this committee at this stage because they felt that it might impinge on their rights. Senator BRANDIS-Further to that question of rights, it occurs to me- CHAIR-We are beginning to debate the issue now, to an excruciating degree of detail, and I want go get on. Senator BRANDIS-I want to make the point that parliamentary privilege would not protect the makers of the statements; it would only protect Dr Pace. CHAIR-That is one of the fundamental points here. Senator FERGUSON-I support Senator Faulkner: we should use in camera evidence only as a very last resort. If you have a written statement, it can be tabled and everybody can see it. It is public; it is not in camera. CHAIR-I have not ruled on in camera evidence. Senator FERGUSON-I do not like in camera evidence. CHAIR-I foreshadowed that as a possible way of getting the documents before us. It is for the witnesses to decide whether they wish to take that course if we rule it in. I am also very interested in hearing what these people have to say in their own voice, and I think that is fundamental. If we did not, it would be like having an inquiry by listening to only one half of the argument. The obligation the Senate has imposed on us is to fearlessly listen to the entire argument. But there is the consideration of the rights of the individuals and their applications, and that is what we are sensitive to. I think we have covered this field well enough and I think we are all in heated understanding of what the issues are and we do not need to trawl through them any further. I repeat: if you feel that you can tell us what you believe them to be, from your discussions with these people, in general terms or specific terms, without identifying their views, I think that is relevant. You have the call. We are not going to go to the individual statements. Dr Pace-When I entered the camps, there was initial curiosity and timidity among the 795 people in Nauru, made up of the Tampa group, the Manoora group and the Tobruk group. As I have some familiarity with Arabic, the Iraqi group gradually started to become more easy, as it were. I asked them to describe to me as a group, if they wanted to, in their own language and by hand what their experience was from the time they were picked up at sea to the time they were put in Nauru. I received four statements: one from the Iraqi group on the Manoora, one from the Iraqi group on the Tobruk, one from Afghan group on the Manoora, and one from the Afghan group on the Tobruk. In addition, a group of Afghan ladies from the Tobruk gave me a short statement, which I also have. I asked them to make sure that they did not colour their statements and that they described events in purely factual terms, knowing their tendency to sometimes get carried away with descriptive tendencies, as it were. So they gave me these statements in which they described their experiences in the two transits on the Manoora and the Tobruk. They spoke CERTAIN MARITIME INCIDENT CMI 1462 SENATE-Select Wednesday, 1 May 2002 about their health and their treatment. They described in a very categorical way what they went through. When I asked them whether they wanted these statements to be shared with regard to my re- port, they said, with the exception of the Afghan Manoora group-the males-that I could use them publicly. The others said that they would rather I used my own discretion. For that reason, I relayed that to Amnesty. The committee has put me in a very difficult position, because if the committee is going to speak with these people directly, that is far more preferable for me. Be- cause these were done in November, two days before and two days after the election, they may have some relevance. That is up to the group's discretion. I cannot help but conclude by saying that this is certainly a question of rights. CHAIR-As I have said, at the beginning of each day I read out a list of things-I read them out in my sleep these days. One of them is that we protect witnesses, and it is a possible contempt of the Senate if a witness would be damaged in any way by someone because of the evidence they gave before a Senate committee. That is put on the record daily. But these people are beyond our jurisdiction, and we therefore have no power to do that. What has caused us pause is that DIMIA will not guarantee that if things are adduced in these proceedings, from people who are offshore outside our jurisdiction, they will not take them into consideration. In those circumstances, we are on a warning that these things may be taken into consideration and it is just a question of balancing that. We are in a difficult position too. We are not trying to obstruct you, but we are trying to balance out, as we work our way through this. That does not mean that today is the only day that you have a chance to say something. I, for one, would like to work my way through this problem. There may be a solution to it. It may be that those people can give authority to clear their statements and we can receive them on the public record. It may be that, being aware of the circumstances, some of them will change their minds. That is all I have to say. Dr Thom, do you have anything to supplement Ms Harris's opening statement? Dr Thom-No. CHAIR-Senator Brandis has some questions. Senator BRANDIS-Ms Harris, has Amnesty International taken any legal advice in this matter from any competent or reputable lawyer skilled in international law? Ms Harris-Apart from us, do you mean? Senator BRANDIS-I am sorry. Let me not be unfair to you, Ms Harris. Are you a lawyer skilled in international law? Ms Harris-Yes. Senator BRANDIS-So the legal observations that you made at the start of your oral presentation are your professional legal judgment? Ms Harris-Amnesty submissions are based on the expertise of both staff members and the national refugee team. There is a lot of legal expertise based in that team and in the staff, plus we have the advantage of the international secretariat advice. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1463 Dr Thom-Which included advice from Eve Lester, who is part of the refugee team in our international secretariat. She is a lawyer well versed in international law. Senator BRANDIS-Would you be prepared to table that legal advice? Dr Thom-The advice was tabled as the submission. It was not tabled separately. She had input it into the submission. There was also input by me and by the national refugee team. Senator BRANDIS-I just have a little bit of difficulty coming to grips with the admixture of legal advice, which is usually unemphatic and clinical, and the advocacy position that you have adopted. Ms Harris-I think perhaps you are making a distinction between advice provided by commercial legal firms and advice provided for international legal issues. They are quite different. Senator BRANDIS-I am aware of that, but I think legal advice is more credible if it is dispassionate rather that impassioned, that is all. In any event, it is not for this committee to arrive at legal conclusions because that is not our role. It is our role to arrive at findings of fact and judgments about policy, to which I may perhaps then turn. Amnesty International is not an aid agency, is it? It does not run any relief programs in the Third World? Dr Thom-No. Senator BRANDIS-It does not run any refugees programs? Dr Thom-No. Senator BRANDIS-What would you define, in just a couple of sentences, as Amnesty International's specific role and expertise? Dr Thom-We are a human rights organisation that looks at human rights instruments and the way governments and non-state actors maintain their adherence or non-adherence to international agreements that they have entered into. Senator BRANDIS-So you scrutinise from a legal point of view the rights and obligations of states, and the breach of those rights and obligations by states, and, as you say, non-state ac- tors of international agreements. You also assess and offer critiques of public policy. Is that right? Dr Thom-Yes. Senator BRANDIS-That is your particular expertise. I want to put a hypothetical question to you-to all of you; you too, Dr Pace-which probably falls within the broad framework of that expertise. Senator FAULKNER-It is okay for you to ask a hypothetical question? CERTAIN MARITIME INCIDENT CMI 1464 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-That is why I was so careful, you see, Senator Faulkner, to establish what is- Senator FAULKNER-I am all in favour of them. I am looking forward to it. CHAIR-Let us not at this hour debate amongst ourselves. Senator BRANDIS-These are not witnesses of fact. CHAIR-Order! Let us not debate amongst ourselves. We have witnesses here answering questions. Please proceed, Senator Brandis. Senator BRANDIS-I want to put a proposition to you. Senator JACINTA COLLINS-A hypothetical proposition. Senator BRANDIS-A hypothetical proposition, yes. Senator Collins, I do not walk away from that at all. In complying with humanitarian obligations when there is a limit to the resources of the state actor-in this case, Australia-which is far exceeded by the demands on those resources by the claimants, would you agree that the first criterion above all others ought to be need? Dr Thom-I can respond initially by saying that you are talking about humanitarian responses. We are not a humanitarian organisation; we are a human rights organisation. Need may play a part in decisions by those making humanitarian responses. In terms of human rights responses, there are instruments which set out how states or non-state actors should respond in particular situations. We would suggest that any state that does not meet those obligations is in breach of international law. Senator BRANDIS-Do you agree with what Dr Thom has just said, Ms Harris? Ms Harris-Absolutely. I have the benefit of your questions to Oxfam Community Aid Abroad. Senator BRANDIS-I was going to ask you questions along those lines, as you have anticipated. But if you both tell me that you do not come before this committee professing any particular expertise as an advocate of humanitarian issues as opposed to human rights issues- and I perfectly understand the distinction, and I thank you for making it, Dr Thom-then I do not think that there is anything more I can usefully ask you. Ms Harris-Often human rights involve a question of balance and competing rights. So in that sense, Amnesty often has to deal with competing rights, in terms of economic, social and cultural rights as opposed to civil political rights. There are many issues. Senator BRANDIS-I remember that Professor Dworkin always used to teach me that rights are trumps and that rights are not to be balanced against considerations of interest. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1465 Ms Harris-No. Rights can be balanced against other rights; rights can compete against each other in terms of striking the right balance. Some of the questions you were asking Oxfam led me towards issues to do with-what you were really talking about was the interplay between poverty and refugee status. Senator BRANDIS-In a sense, I was. Ms Harris-I suppose the issue really is that, when a state is making resource allocations and policy based on resource allocations, it can be influenced by many different considerations, some of which would be humanitarian need. But the idea is that, if you sign on to international human rights obligations, you try to manage those resource allocation issues within that framework. That is what is at issue here. You cannot merely fling away the framework if your short-term policy or your allocations of resources dictate. You do not have to sign human rights conventions. Senator BRANDIS-I understand what you are saying and I agree with you, but your point is that you are not here to speak about resource allocation issues; you are here to speak on, essentially, legal issues. Dr Thom-In large part; I think one of the things we put in our submission is the idea of burden sharing, which I think is partly what you are alluding to. Quite clearly there are both convention articles and EXCOM conclusions which deal with burden sharing with regard to the refugee convention. Our argument in our submission is that what the Australian government is doing is not burden sharing in any way, shape or form. It has not answered questions as to how it is dealing with those EXCOM conclusions if in fact it is making a burden-sharing argument. If you are talking about resource, I think that Amnesty International, for one, would like to see how it is making that argument. Senator MASON-Dr Thom, do you think Australia is fulfilling its share of the burden of the refugee problem? Dr Thom-It is difficult to give a definitive answer on that- Senator MASON-But you just raised the issue, and it is the obvious question. Dr Pace-Not in the spirit of the refugee convention. Senator MASON-That is actually a different question. Dr Pace-It is the same story, isn't it? Senator MASON-Yes, but it is not the right- Dr Thom-If you were comparing the number of asylum seekers that Australia takes in relation to Iran or Pakistan, the answer to your question would be no. If you are going to take the line that is often taken by the minister that we have an offshore program that is one of only nine in the world, then the answer would be yes. But, from Amnesty's point of view, the question of burden sharing is more to do with how you respond to situations of mass influx. So CERTAIN MARITIME INCIDENT CMI 1466 SENATE-Select Wednesday, 1 May 2002 how would Australia respond to the millions of Afghans who have fled over the last 20 years? I think that, if you look at the number of people we have resettled from Afghanistan, Pakistan or Iran, the answer to your question would be no. If you look at how we responded in 1979, 1980, 1981 and 1982 with regard to what happened in Indochina, I think we did play a very positive role in dealing with that situation. So it is not a cut and dried yes/no answer. Senator MASON-It depends on its application. Ms Harris-If you are asking us whether Australia could do more with its aid program or its general use of official development assistance to combat the root cause of refugee flows, the answer would also have to be no. I would be happy to provide data on how Australia's ODA is not at all focused towards root cause or people flows at present. Our aid program is very much focused on the South-East Asian region, so in the case of the Solomon Islands or East Timor, perhaps you have some sort of argument, but not in relation to Afghanistan or Africa. Senator BRANDIS-But Australia provides very extensive aid in Africa- Ms Harris-The aid program in Africa has been reduced markedly over the last six years. Senator BRANDIS-directly and through NGOs. Ms Harris-Through the NGOs, yes, but comparatively through the aid program, no. Senator BRANDIS-Most of the funding of NGOs comes through AusAID. Ms Harris-Most of the funding from NGOs for Africa comes through community fundraising. Senator MASON-Ms Harris, just with that very answer you have opened up a whole host of questions-and I have heard this debate. Mr Ruddock has spoken often about the distinction between, as you say, offshore assessment of refugees and then, as you mention, examples such as Pakistan and Iran and so forth. He argues that those countries are nearly forced to take those refugees by virtue of their geographic location-in other words, it is contextual. I heard your answer. I do not want to go down that line. I just ask a couple of questions relating to your submission because we are just going to run out of time. In your conclusion in your submission, you make a couple of points. You say: Amnesty International believes the so-called `Pacific solution' is inherently flawed, because (a) it punishes the victims exploited by people smugglers in order to combat the crime ... What precisely do you mean by that? Let me ask the next question. In a sense, it follows from what Senator Brandis asked before. Many of these people had the ability to pay thousands of dollars to people smugglers to get often to Australian territorial waters or just outside Australian territorial waters. If they did not have that money, it is unlikely that they would be in a refugee camp in Pakistan, for example. They would not have an immediate and high chance and certainty of ending up in Australia. As it is, they may well do so from Manus Island or Nauru. You are talking about these victims being exploited by people smugglers. To my mind-and I cannot speak for Senator Brandis, but I suspect to his mind as well-these are the lucky CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1467 refugees that had the money to pay to people smugglers to put themselves into positions where they are likely finally to end up in a Western country. Ms Harris-A lucky refugee is someone who gets to go home for a start. Senator MASON-Come on, Ms Harris! I do not think that is quite good enough. Ms Harris-No, I think that is a rather key point. A person who gets to go home to a viable state is a lucky refugee. Senator MASON-So you do not think that, looking at part (b), a durable solution to this people plight can be found in Iran or Pakistan or Malaysia or Indonesia? A durable solution for these people can only be found in Australia? Dr Thom-Are you asking whether an Iraqi can only find a durable solution in Australia as compared to Malaysia? Senator MASON-Dr Thom, these people are moving around the world on this people- smuggling pipeline-and these are the victims. All of a sudden it seems that the only place a durable solution can be found is, funnily enough, in Australia or another Western country. Ms Harris-To signatories of the refugee convention. Senator MASON-In a sense, they are forum shopping. Ms Harris, do you see the point? Dr Thom-I hear the point you are making. I do not see the point. Ms Harris-I see the implication. Senator MASON-You say it is flawed because the Pacific solution `punishes the victims exploited by people smugglers'. These are the victims exploited by people smugglers. These are the people lucky enough to have thousands of dollars to get to the territorial waters of this country and they are in Nauru or Manus Island at this moment. All the others are in Pakistan or somewhere else. They are the unlucky ones. They are not getting into this country because they do not have the money. You are saying that these poor people are exploited by people smugglers? That is your argument, is it? Dr Thom-No, the argument we are making- Senator MASON-Really. Dr Thom-Am I allowed to answer this question? CHAIR-Yes, you are. Senator MASON-If you can. CERTAIN MARITIME INCIDENT CMI 1468 SENATE-Select Wednesday, 1 May 2002 Dr Thom-The answer is that refugees are entitled to durable solutions. If you reach a country that has signed the refugee convention to seek asylum, that country is obliged to provide you with a durable solution. What has happened in the Pacific solution has not provided any durable solutions. We have not seen any statement from the government about where these people are going or when they will be going. What we have at the moment are a number of people who have been recognised as refugees who are still being detained. This is not a durable solution. If you have been recognised as a refugee, you are entitled to some form of protection. Senator MASON-So will these people who have a strong sense of fear of persecution in Iran and Pakistan also have that strong fear of persecution in Malaysia and Indonesia? Is the only place where they are not going to have that- Dr Thom-That is not what a durable solution is. Senator MASON-What is it? Dr Thom-A durable solution is effective protection. Effective protection is not wasting away in Malaysia. Just because somebody is not going to kill you, that is not a durable solution. Senator MASON-So you are saying `wasting away in Malaysia'. What is wrong with living in Malaysia, Dr Thom? Ms Harris-They have not signed the refugee convention. Dr Thom-They have no right to be there. Senator BRANDIS-There is a little bit of racism- CHAIR-Order! A question was put; we are at least entitled to hear the answer. I ask Dr Thom to complete his answer and then we will have another question. Dr Thom-I am not quite sure what more I can say about a durable solution. I would ask Senator Mason to have a look at the refugee convention. Maybe he could start with the UNHCR web site and a number of the recent statements by the High Commissioner for Refugees, Ruud Lubbers, as to what durable and effective protection is, because I do not think he quite understands what it is. Senator MASON-It seems to me that the only solution in the world with a durable and effective solution, Dr Thom, is a Western country with a high standard of living. Is that right? Dr Thom-Ms Harris has made it quite clear what an effective solution is. If they are able to return to their country, that is the first solution that UNHCR looks at. If you were to look at the UNHCR web site, you would know this fact. The second option they look at is settlement in their first country. If they can do that, that is a durable solution. If they cannot do that, the third and final option is resettlement, and resettlement means that they get some form of permanency and some form of life with regard to that protection. Keeping people in limbo, especially detained in limbo, on an island such as Nauru or Manus, which they were taken to against their will, is not effective protection or durable protection anywhere. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1469 Senator MASON-So the only solution for these people is that they come to Australia? Ms Harris-The effective protection for these people- Senator MASON-Dr Thom, that is the sum of what you are saying. Ms Harris-Senator, if you could convince Indonesia and Malaysia- CHAIR-Order! Senator JACINTA COLLINS-I would like to hear Ms Harris answer the question before she gets rolled over by an hysterical Senator Mason one more time. Ms Harris, can you please answer the question? CHAIR-No, I will call the witnesses when it is appropriate to call them. There is a point of order. It is half past 10; we have to give some thought very soon to when we pack up for the night. If there is some indication that we will be finished with these witnesses by 11 o'clock, we can do so. Otherwise, we might have to give some thought to finding another time on our program to have them back. Let us proceed with some order. Senator BRANDIS-I want to tie this point down a bit. As I understand it, the definition in international law of a refugee is somebody who has a well-justified fear of persecution. `Persecution' is a defined term under the relevant international instrument, and there has been accreted to it a body of law and practice so that we know what persecution is. Am I generally right in my understanding? Ms Harris-It is an evolving definition but, yes, that is right. Senator BRANDIS-You do not say, do you, that the refugees on Manus Island or Nauru have a justified fear of persecution at those localities? Dr Thom-No. Ms Harris-No. Senator BRANDIS-So, unless you were to say that the refugees have a right of nomination of their country of ultimate asylum, I cannot see why you say they have a complaint with the outcome which the Pacific solution has produced for them. I do not say that it is bad policy from Australia's point of view, but you, Dr Thom, were at pains to point out that Amnesty is a human rights body. These people are refugees; they have a right to asylum in a country where they are relieved of that justified fear of persecution. Senator Jacinta Collins interjecting- Senator BRANDIS-Let me finish. You tell us that they do not have that fear of persecution in Nauru or on Manus Island, so from their point of view what right of theirs do you say is being violated by the Pacific solution? CERTAIN MARITIME INCIDENT CMI 1470 SENATE-Select Wednesday, 1 May 2002 Senator MASON-We are obviously very unintelligent, Dr Thom. We are perplexed about this and I think you will find that most Australians are as well. CHAIR-Order! Ms Harris-Here is the chain of events- Dr Thom-They have not read our submission; I had hoped that you would have. Ms Harris-I will just go through a dispassionate chain of events. Afghanistan is a failed state and there has been a mass influx of people over 20 years into Pakistan and its surrounding borders. The first issue for UNHCR is: can they find effective protection within Pakistan? If protection in Pakistan fails, which it has in terms of legal issues, housing and the right to food, that person has the right to try and find another durable solution in a state which is a signatory to the refugee convention. Indonesia and Malaysia are not signatories to the refugee convention, so if a person is trying to reach a signatory state to the refugee convention-and it does not have to be a Western state or a rich state-they have the right to do so. If we then forcibly displace them to Nauru and Manus Island- Senator BRANDIS-We have denied them entry into Australia. Ms Harris-they may not have at that time a well-founded fear of persecution while they are in Nauru and PNG, but they also do not have a durable solution to their plight. They have not found effective protection. Effective protection means basically that you gain citizenship of a state which will offer you access to courts, food, shelter, freedom and a viable life. Senator BRANDIS-But you say- Dr Thom-I point you to EXCOM conclusions 15 and 58 which state that refugees or asylum seekers do have some choice in where they are going to go. If they have family connections, that entitles them to have some say in where they are going to go. I would like to see how the Australian government with the Pacific solution have taken into account those two EXCOM conclusions. We do not believe they have. Senator BRANDIS-Dr Thom, when you rightly point me to those propositions, they are exceptions to a general rule, are they not? The general rule is that there is not a right in putative refugees to nominate their country of ultimate asylum, but there are certain circumstances in which international law does give them some say. However, the general rule is that they do not have a right to nominate their place of ultimate asylum. Isn't that right? Ms Harris-A person has the right to seek- Dr Thom-No, there is not a general rule that says they can't. Ms Harris-Exactly. Dr Thom-You find somewhere in the convention it says an asylum seeker cannot go anywhere they like to seek asylum- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1471 Senator BRANDIS-We are talking about vested rights here. You are saying that these people have rights, but you have not suggested that they have a right, as a general principle in international law, to nominate their country of ultimate asylum and, with respect, it is no answer to say, `Well, you show me that they don't have such a right.' You are the one who is propounding the existence of a right. Ms Harris-It exists in article 14(1) of the Universal Declaration of Human Rights. Asylum seekers have the right to seek asylum and enjoy asylum from persecution. The issue is: where are these people safe? That is the issue. It is not where we think they are safe or even where UNHCR thinks they are safe. Senator BRANDIS-I would like to get back to the fairly safe territory of rights and, in particular, rights in international law. I want to change the example a little. Let us say that Australia had a land border with another state. Rather, let us take the case of a country which has a land border with another state. Those two states are divided by a wall or some sort of policed, physical barrier. Asylum seekers from state A queue up at the wall and state B, which is a party to the convention, declines to allow them through the physical land barrier. Are the rights of those asylum seekers to enter state B necessarily being violated merely because they express a preference to enter state B? Dr Thom-They are being violated in the sense that non-rejection at the frontier has been accepted through EXCOM conclusions as being part of the refugee convention. So state B would be in breach. It is not a question of whether those individuals can choose to go across into state B. If state B has said it will protect them, then it cannot reject them at the frontier. That is the spirit- Senator BRANDIS-What if state B has not said that? Do you say that, by merely signing the convention, state B must always be taken to have said that? Dr Thom-Yes. Senator BRANDIS-Does it then not follow from that proposition that an asylum seeker making application to a state party to the convention will always, on your view of international law, have a right of nomination of the state of ultimate asylum? Ms Harris-It has a right to be processed by the state by which it makes that application- that the person physically presents itself to. It has a right to be processed. It does not have a right to be taken; it has a right to be processed to see whether its claim for refugee status is accepted by that state. That is actually quite a different spin. Senator BRANDIS-Let us change the model just once more. Let us say that there is a third state, state C, which has a contiguous land boundary with both state A and state B. The asylum seekers seeking asylum from state A and expressing a preference for asylum in state B nevertheless find themselves in state C, and in state C they do not have a well-justified fear of persecution; they are safe. Do you still say that state A violates their rights or violates its obligations under the convention by not enabling the asylum seekers to leave state C, that is, the place where they are free of a justified fear of persecution? CERTAIN MARITIME INCIDENT CMI 1472 SENATE-Select Wednesday, 1 May 2002 Dr Thom-This gets back to the question of the use of safe third countries, and it is highly disputed. It has been used by most Western countries; Australia would not be unique in claiming that if you pass through a safe third country you can be returned to that country. Senator BRANDIS-Did you say that it is highly disputed? Dr Thom-It is still disputed, yes. Senator BRANDIS-Is it a controversial legal issue? Dr Thom-Yes. Senator BRANDIS-If it is a controversial legal issue, how can you possibly come before this committee and say, `Australia is violating its legal obligations'? Dr Thom-Because once it has gone through state C and reached state B and said, `I want asylum- Senator BRANDIS-At best for your proposition, Dr Thom, Australia may or may not be in violation of an obligation because the character and the extent of the obligation is, as you con- cede, controversial. CHAIR-Now we will hear from Dr Thom, and he can answer the question. Ms Harris-What has happened is that the government has kind of misappropriated the doctrine of a safe third country. Normally what would happen, if you were really using the safe third country the way western Europe does, would be: if these people have come through Indonesia and Australia accepts that Indonesia is a safe third country and Indonesia accepts that it is a safe third country, we would have just sent them back to Indonesia. We did not do that; we sent them to Nauru and PNG and we are processing them-and the Nauru government does not have responsibility for processing those asylum seekers. We cannot have it both ways. Senator BRANDIS-Would Australia be on stronger legal grounds if we were not processing them? CHAIR-Order, Senator Brandis! I am going to call on you the point of order you called earlier. Can we hear the complete answer. It will help these proceedings if we hear the complete answer, because I am pretty sure that, if we do not hear it now, someone over here will ask a question and we will hear it then. We may as well hear it now. Dr Thom-To answer your question, safe third country means, as it has been used in western Europe, that a person goes from state A to state C to state B and state B says, `You were safe in state C,' and sends them back to state C. That is still disputed. But that is not what has happened in Australia. What has happened is that they have gone from state A to state B and B has decided- Senator BRANDIS-They have not gone- CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1473 Dr Thom-Hang on a minute-`You would be safe in C; we are going to send you to C where you will be safe- Ms Harris-`You would be safe in Z'. Dr Thom-Yes, X, Y or Z-`but we are going to detain you and we are going to process you. So we are still going to accept responsibility for you, but we are going to invent a third safe country and send you there.' That is a totally new and unprecedented action by any state. It is unilateral. Of course it has not been tested in international law, but given the conventions and guidelines and conclusions we have outlined in our submission we believe it is quite clearly a move away from the obligations we set down when we signed the refugee convention. Senator BRANDIS-Dr Thom, can I put it to you that if the A through C to B, and then back to C scenario is controversial, and the A to B and then on to the C scenario-which is the Pacific solution in this schema-is unprecedented and untested. How can any competent lawyer possibly conclude that the matter is conclusive. You say yourself that the nearest metaphor is inconclusive and uncontroversial and that the actual situation here is unprecedented and untested in international law. Given that is your evidence, how can you possibly come before the committee and say Australia is violating its obligations in international law? Dr Thom-Because we are outlining where we think it is. Senator BRANDIS-No, because you are being an advocate, not a lawyer, Dr Thom. That is the problem. Dr Thom-No, we are not an advocate. We are a human rights organisation and we are putting up why we think this government is in breach of its human rights obligations. Senator BRANDIS-You do not think it is, because you have just told us that the human rights obligations are at worst for the government uncontroversial but, in the very circumstances of the Pacific solution, unprecedented and untested. Ms Harris-Unprecedented, because no state has ever done this kind of ridiculous action before. Unprecedented, because no other state has been willing to go to the extremes the Australian government has in the last few months. If you are talking about precedents, what would happen if Germany- CHAIR-Please do not ask questions back to the committee. We will be here all night if you pose hypotheticals to us. Dr Pace has an explanation he wants to make. Are you waving it off? Dr Pace-Yes. Senator MASON-One thing I hope this has illustrated tonight, Ms Harris, Dr Thom, Dr Pace, is this: what you say are legal issues and simply human rights issues so often become political issues, and for a very prestigious organisation like Amnesty International, you must understand that these issues become highly political and politicised. I have said this before. I have said this in the Senate. I just hope and wish that Amnesty International in future, for example, criticise North Korea more than it does South Korea. I just wish the day would come CERTAIN MARITIME INCIDENT CMI 1474 SENATE-Select Wednesday, 1 May 2002 again when Amnesty focused rather more on totalitarian countries and authoritarian countries than it does- Senator JACINTA COLLINS-Is this a lecture or a question? Senator MASON-It is a bit of a lecture but I do not mind doing it. I do not mind doing it Senator Collins because- Senator JACINTA COLLINS-Don't get hysterical with me. Senator MASON-Many people on the Centre or the Centre Right-which let us face it won the intellectual arguments last century-are very very tired- Senator JACINTA COLLINS-You are lacking in intellectual arguments. Senator MASON-of being lectured to by Amnesty International, particularly when you criticise- CHAIR-Point of order. Senator JACINTA COLLINS-Point of order, Chair. Senator MASON-countries like South Korea, and hardly ever North Korea. CHAIR-Point of order. Senator JACINTA COLLINS-If Senator Mason could ask a question. CHAIR-Order! Look, I will close this hearing down and call these witnesses another time, if we cannot have some order in this process. Maybe it is the lateness of the hour that is causing the argumentative mood. I have a point of order called and I am going to insist on hearing it. I hope it can be dealt with quickly and then I am going to ask at what point do you think your questioning can be referred to the opposition because it is now nearly 10 minutes to 11. The point of order please. Senator JACINTA COLLINS-The point of order is simply, could you please ask Senator Mason to contain himself to questions. At this hour with the amount of time he is taking- Senator Mason interjecting- CHAIR-No, I am not asking you to debate Senator Collins. You have made a statement. I let the statement be made. I have let other statements be made from other speakers. The point of order that has been called on you has been called on me and it has been called on others on the other side. Are we in a position now to move on? Senator BRANDIS-I just wanted to make a little statement. CHAIR-No. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1475 Senator BRANDIS-I will put the proposition to you: don't you realise- CHAIR-No. Order! Senator BRANDIS-Don't you realise that this sort of selective morality that- Dr Thom-In what way is it selective? Sorry, I do not understand. Senator BRANDIS-The sort of thing you are suggesting Senator Mason has just exposed is the very thing that created Pauline Hanson. You are damaging- CHAIR-Order! We are well out of the terms of reference. I will close this hearing down. Come on-this a is ridiculous performance! Dr Thom-I am glad you said it instead of me, Mr Chairman. Thank you. CHAIR-Please, let's not get into this debate. Pauline Hanson at this hour of the night for God's sake! People are engaged in debating the witnesses rather than questioning the witnesses. I do not think anyone has further questions so I will ask: has Senator Collins or Senator Faulkner got any questions? Senator FAULKNER-I think I should ask some questions but I think this will be a change of pace for the witnesses. They will not be rabid questions; they will be asked in my normal courteous and civil way. I have no idea what has been put in the peppermint tea tonight, but I do hope the House Committee has a look at it. I am going to be brief because of the lateness of the hour, but I would like to understand, if I could, your view of how Australia is regarded internationally, both amongst human rights organisations and the milieu in which Amnesty moves, for implementing the Pacific solution. In your view, what has happened, if anything, to Australia's standing in the international community? Ms Harris-I think our UN expert can help with that one. Dr Pace-I was secretary of the United Nations Commission on Human Rights for 18 years between 1978 and 1994, and let me share with this committee with pride the record of Australia during those years, which were critical years in the evolution of international human rights law, particularly when the polarisation between East and West as a result of the Cold War was having such a disastrous effect on the evolution of international human rights law. I am sad to say that when I left in 1999 I was not able to retain the same opinions that I had received. Sitting at the commission, I must confess that I heard delegations make certain statements very similar to what I have heard tonight. I will not mention which delegations they were but they were not from the West. Certain accusations were made with regard to Amnesty International. I have never been a member of Amnesty International and it was my duty as secretary of the commission to put Amnesty in its place with regard to its alleged selectivity. So, with all due respect, in answer to your question, it is a matter of regret that the international human rights legal regime has suffered considerably, in my view, in its application, particularly in regard to the International Covenant on Civil and Political Rights, which affords basic protection to individuals. CERTAIN MARITIME INCIDENT CMI 1476 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-Thanks for that. I am not sure which witness to direct this question to, so whoever you deem appropriate can respond. I am interested in Amnesty's view about the use of the Australian Navy-the Australian Defence Force in the broad but particularly the Royal Australian Navy-to prevent boats with asylum seeker passengers from reaching Australian shores. I am interested in your view about the use of our defence forces in that area. Dr Thom-I think my answer would go back to the point that we believe that quite clearly rejection at the frontier of any country is in breach of a country's international obligations with regard to a commitment to protect those fleeing prosecution, and I think the use of the Navy in order to do that must be considered part of that breach. I think it would be the same if they used the coastguard, the Army or any private firm to do the same role. When you sign up to the refugee convention it is a clear signal that people are entitled to come and seek protection if they are legitimately fleeing prosecution. In this sense Amnesty has very serious concerns about the use of the Navy and the fact that the Navy, as has been reported, has fired across the bows of people exercising their international human right to seek asylum. This, again, is what the whole issue was about in the late 1970s and the early 1980s with the Indochinese, and why Australia was such a part of finding a solution to those countries who were using their military to force boats back out to sea. I think Australia can take some credit for what it did at that time. I think it is an amazing situation that we are now the ones who are employing those methods. Senator FAULKNER-In your view, is the Pacific solution a defensibly humanitarian approach to dealing with asylum seekers? Dr Thom-No. It is not about dealing with asylum seekers, as the minister has often pointed out. It is about people-smuggling. It has nothing to do with affording a protection to people who are fleeing persecution. Ms Harris-Could I just add to your question about the use of the military? I think that perhaps it is not obvious to the Australian public yet, but it will be, that, when people, particularly women and children, are processed and come out the other side as genuine refugees-and there have already been quite a few cases that have been processed-we will have to consider very strongly that we used our defence forces against already traumatised children. I just do not think that that is something most Australians will feel very comfortable with when they have really thought that through. We have used kids that have come from places like Iraq and Afghanistan; we have added to the danger of the journey and everything else they have been put through by then launching Navy boats against them with firing shots, and have dragged them to another country. The psychological trauma that we have added to those children's experiences is something that we are fully and wholly responsible for. Senator FAULKNER-I do not know if you appreciate this, but I ask this from the point of view of your opinion about the principle here. I do not want you to misunderstand that there is any implicit criticism, on my part, of the fact that anyone in the Australian Defence Force is undertaking actions that they are required to do as a result of government policy, government decisions. I assume you appreciate the distinction there. Ms Harris-Yes, I do. Again, I would say that we have created a military threat out of asylum seeker situations where none existed. That was a very deliberate government policy-to CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1477 create a military threat and a question of national security and all of those kinds of things; to give a security framework to what is essentially a human rights and humanitarian issue. Senator BRANDIS-Don't you think that border protection is an issue of national security? CHAIR-Order! There is so little time left. Dr Thom-Border protection is a phrase used by the current government in its bills. It has got nothing to do with people exercising their right to seek asylum. Senator BRANDIS-No, it is actually used by Mr Chris Sidoti and it is one of his first principles of good refugee policy. CHAIR-Order! We will not debate the issue. Senator FAULKNER-Nauru has not signed the 1951 refugee convention, has it? Dr Thom-No. Senator FAULKNER-In relation to PNG, I think they have signed. My understanding is that they have placed caveats-or significant reservations, perhaps-on their signature of that convention, but I would like you to confirm that. That is my understanding; is that your appreciation of it? Ms Harris-That is correct. UNHCR has not yet been allowed to visit PNG. It is my understanding that the regional representative has not yet been able to present his credentials to Papua New Guinea. Dr Thom-To Manus Island. Ms Harris-No, to PNG itself. Dr Thom-Yes, sorry, you were correct. Senator FAULKNER-Given that background can I just ask you whether, in Amnesty's view, there are possible implications for asylum seekers who are in Nauru and PNG as a result of the approach that those two countries have to the convention? Dr Pace-The asylum seekers in Nauru are not, for all or any purpose, in Nauru territory. Nauru is taking care of them under contract from Australia. It is very clearly stated in the statement of principles and reiterated by Nauru in its exchange of notes with the IOM and the UNHCR. So whether they are on Ashmore Reef, Villawood or Nauru, those asylum seekers are still the responsibility of Australia in regard to the processing. With regard to Manus, I cannot talk because I am not- CHAIR-How much longer do you think this will go? CERTAIN MARITIME INCIDENT CMI 1478 SENATE-Select Wednesday, 1 May 2002 Senator FAULKNER-I will ask the last question. I do hope you appreciate, Mr Chairman, that the rather extraordinary exhibition that we have heard from Senator Brandis and Senator Mason particularly meant that the sensible questions really cannot be asked of the witnesses at the table. How long have we got, Mr Chair? CHAIR-I rather hoped that we could sign off at 11 o'clock. It is just a minute or two after now. Senator FAULKNER-I will ask a final question and pass the call to Senator Collins. I am sorry about this because obviously it is not the position I would have liked to have been in. CHAIR-We will try and find a time at which we can invite these people back to complete their evidence. Senator FAULKNER-I would hope not. Frankly, I would not want to expose these witnesses to- CHAIR-I am mindful of the fact that Hansard and other people have been here all night. Senator FAULKNER-Senator Collins and I are saying we can wrap this up certainly by 10 past 11, as long as they are not very long answers. CHAIR-Senator Ferguson has a question. Senator FAULKNER-I think we can complete it quickly. CHAIR-How long do you think you will take, Alan? Senator FERGUSON-No more than five minutes. CHAIR-We will sign off and close the hearing at quarter past. Senator FAULKNER-I would not want to ask the witnesses to come back and expose them to the tirade that they heard from certain senators. I ask the witnesses at the table: in your view, has the Australian government observed the basic rights of asylum seekers in Nauru and on Manus Island in accordance with either Australian law or international standards? If you do not believe so, could I ask you why you do not believe so? Ms Harris-We have outlined in our submission under international law-and we are not just talking about the refugee convention; we are talking about civil and political rights, economic, social and cultural rights-our specific concerns about mandatory detention. Nauru has the same objections as those in the Australian context: right of access to legal counsel; right to communicate with UNHCR; right to notify their family of the fact and place of detention; right to be visited by, and to correspond with, members of their family; right to communicate with the outside world; right to medical care; and right to humane conditions of detention which take into account their special status as asylum seekers-things like counselling, mental health-and the special issues that pertain to the rights of children who should never be detained, except for the shortest possible period of time as a last resort. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1479 So if you are asking which of those breach Australian law, they are the same issues that are questionable under Australian law, given our accession to the UN Rights of the Child Convention on mandatory detention of children-and there are several cases proceeding on this basis at present and there is the Human Rights and Equal Opportunity inquiry into children in detention presently. I would not pre-empt the outcome of that report, but I think that will answer your question. If Sev Ozdowski, the Human Rights Commissioner, finds that the conditions for children in detention here in Australia breach Australian laws, as well as international laws, then there would be no effective difference between those children on Manus and Nauru. And even on the basis of statements he has made up to that point, and his recent visits, I think that will be the case. You have also got the report of the Human Rights Subcommittee of the Joint Standing Com- mittee on Foreign Affairs, Defence and Trade, who visited the immigration centres of Australia, and they had a long list of human rights concerns-both international and domestic legal is- sues-and that again would be a guide. But one of the issues here is, apart from Dr Pace, we do not know. None of us have been to Nauru or PNG. Senator BRANDIS-Then why are you stating conclusions if you do not know? CHAIR-Order! Ms Harris-Because we cannot get visas. Senator BRANDIS-Well, why are you stating conclusions then, if you don't know? Ms Harris-And why can't we get visas? Why can't we get to visit these people? Because of Australian government policy. That is why we don't know. Dr Pace-With regard to the incarceration in Nauru, if you look at the collective visa granted by Nauru to the asylum seekers, you will see, as I am sure you have, that there is reference to Nauru law. It is doubtful whether their incarceration in Nauru is consistent with Nauru law, given the fact that these people were shipped to Nauru against their will, and apart from the fact that there is a fundamental breach of international standards, if not law, in the refoulement that has taken place in regard to all of these asylum seekers who were taken out of Australian territory or waters and pushed to territories outside. If you look at the range of international obligations-and I believe we should be careful to address ourselves not to rights but to international obligations entered into by states in order to maintain international legal order- you will see that the measures that have been taken to ship these people away from Australia are against international legal obligations, in regard to both the Refugee Convention and the statute of the high commissioner and its interpretation by the EXCOM, and also under the ICCPR, as Ms Harris has said. Senator BRANDIS-But Dr Pace, you- CHAIR-No, you are out of order. Senator BRANDIS-Ms Harris and Dr Thom have said the matter is- CHAIR-Take this question on notice, Dr Pace. Senator Faulkner, you may- CERTAIN MARITIME INCIDENT CMI 1480 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-Do you disagree with that? Ms Harris-No, you are misquoting us. CHAIR-Don't answer those questions. Answer as I directed. Those questions will be put on notice, if you wish to ask them. Senator Collins? Senator JACINTA COLLINS-Dr Pace, you are listed today for this appearance as the author of Amnesty International's Nauru field report. Is that a public report? Dr Thom-Not yet. It is part of an ongoing investigation. Senator JACINTA COLLINS-Does Amnesty International have plans to make that report public? Dr Thom-Yes. Senator JACINTA COLLINS-How soon? Dr Thom-It is a good question. We are hoping that it will occur in the next two months. We want also to look at the situation on Manus and at those people who are in Indonesia as well. So once we have a broader understanding of those in the region who are fleeing persecution, then we will release a broader report, and John Pace's evidence will be part of that. Senator JACINTA COLLINS-Can I ask, once you establish the components of Dr Pace's material that you will include in a public report, that you consider providing us with preliminary material that you had originally planned to refer to today. You may want to reappraise exactly what that material will be, on the basis of that earlier discussion. But I am assuming that eventually you will decide on some material which you think is appropriate to be made public. When you reach that decision, if it is within our timeframe, can you forward that to us as well? Dr Thom-Definitely. I wanted to add to the answer to Senator Faulkner's question: the convention against torture also needs to be taken into account, because that also has non- refoulement obligations. As yet, the Australian government has not made clear how it will deal with any case that may not fall within the Refugee Convention but may still raise Australia's obligations under the convention against torture. Until the Australian government answers how it will deal with those specific individuals, Amnesty will still have concerns about the overall approach of the Pacific solution. Senator JACINTA COLLINS-In relation to these conventions and obligations of a state, can I go back to the Manus Island situation. I am not sure where I gathered this impression from, but my understanding of the arrangement between Papua New Guinea and Australia is that it was an attempt by Papua New Guinea to negate any obligations that they may have in the future with respect to the asylum seekers on Manus Island. Is that your understanding? Ms Harris-Do you mean the MOU with Manus Island? Senator JACINTA COLLINS-Yes. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1481 Ms Harris-Do we have the text of that, John? Dr Pace-I have Nauru. Dr Thom-If it is similar to Nauru- Ms Harris-Then, yes. Dr Thom-We have to go on record that we have not seem that memorandum of understanding. But if it is similar, then, yes, that would be what they are trying to do: that they have entered into an agreement that the Australian government will remove these people from PNG territory in a certain time frame and that, beyond that, they will not be responsible for those people. Senator JACINTA COLLINS-Okay. But a key distinction between the Manus Island situation and the Nauru one is that Papua New Guinea is a signatory to the convention. Ms Harris-Yes. Senator JACINTA COLLINS-Do you have any understanding of the legal status of a signatory to the convention seeking to avoid themselves of their responsibility to the convention in an agreement with another state? Ms Harris-There is a group of Papua New Guinean lawyers raising the constitutional issue of detention, because detention without trial is against both the Nauruan constitution and the PNG constitution. That group of constitutional lawyers is also addressing the issue of PNG's accession to the refugee convention. PNG's ratification of the convention is very limited, mostly because it has a huge issue with what they call `border crossers' from West Papua which they are very careful about. So I would think that Papua New Guinea would not be said under international law to have the same obligations as Australia with regard to asylum seekers. Dr Thom-That is with regard to offering durable protection- Ms Harris-Yes. Dr Thom-But in terms of non-refoulement obligations, that is a customary norm and so they would still have the same obligations there-they could not send somebody back from PNG to a country where they face torture or death. Senator BRANDIS-So it would make all the difference to your criticism- Senator JACINTA COLLINS-Senator Brandis, you have had your opportunity, thank you. Senator BRANDIS-if PNG were a party to the convention. Is that right? Senator JACINTA COLLINS-Please ignore that question and deal with on notice, as the chair requested. CERTAIN MARITIME INCIDENT CMI 1482 SENATE-Select Wednesday, 1 May 2002 Senator BRANDIS-I have asked the question. CHAIR-Senator Collins has the call. You may put that question on notice, Senator Brandis. I am going to close this down in three minutes, so let us get on with it. Senator JACINTA COLLINS-The next issue I want a deal with is the earlier discussion about whether these asylum seekers on Manus Island and on Nauru are essentially in-I forget the correct terminology-a protected environment or an appropriate environment. Given the nature of the agreement between Australia and these countries, it is a bit irrelevant, isn't it? The nature of the Australian agreement with these countries is that they will be removed, so how can it be relevant whether it is an appropriate outcome for these people to be in that place? Dr Thom-That is our argument about effective and durable protection, and the fact they have been taken there against their will. To say that they have some sort of outcome at present, even when the Australian government is still refusing to say who is going to be going where, is a bit of a long bow by the Australian government. Just because they are not being shot at or their life is not in immediate danger does not mean that they have effective and durable protection. Added to that is the fact that they are being arbitrarily detained. I think both those points need to be taken into consideration. Senator JACINTA COLLINS-The point I am making is that further ammunition, in a sense, for that argument is that the government itself has this arrangement that that solution will not continue. Ms Harris-I think what you are talking about too is whether the asylum seekers on Manus Island have a legitimate recourse to the PNG government as well as the Australian government for the situation they are in. I think that is quite right. To some extent that is an issue for PNG lawyers and lawyers on Nauru to be pursuing with their governments, and as far as I am aware they are pursuing those avenues. It is a complete legal minefield. As we said, it is unprecedented, and in some ways we might not know the legal tangles that are going to come out of this arrangement for quite some time. Senator JACINTA COLLINS-We are running out of time, but I did note Dr Thom's comments at the time. He was not claiming that this was a definitive principle at law. What he was actually saying is that what we have done, this unprecedented action, has taken us further away from what was controversial. Ms Harris-Exactly. Dr Thom-It has taken us further away from the spirit of the refugee convention. Senator JACINTA COLLINS-Yes. CHAIR-How are you going there, Senator Collins? Senator FAULKNER-She is going very well in the limited amount of time she has had available to her because of the tirade that these witnesses have been subject to from the manikin on the other side. CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1483 Senator JACINTA COLLINS-There are two other issues that I wanted to cover. Firstly, Ms Harris- CHAIR-How much longer do you think you will be? Senator JACINTA COLLINS-Two minutes. CHAIR-Let us keep it to two minutes, then. Senator JACINTA COLLINS-Yes. You mentioned that you had observed the Oxfam discussion earlier today. I would also like to direct you to the discussion that occurred before DIMIA on the same points. The DIMIA officials said to us: However it was that these people got into the situation now, albeit they had resources back in their country of origin, they do not now. So we are still punishing the victims, in that sense. Unfortunately, senators from the government seem to have forgotten that component of the testimony. My final question was to ask if you would like to indicate, on record, given all the media commentary- CHAIR-I would not raise the question of making statements on that side, if I were you. Senator JACINTA COLLINS-No. Would you like to put onto the record, given the media comment about the minister's Amnesty membership, precisely what the situation is? Dr Thom-No. Ms Harris-No. Senator FERGUSON-I understand that, when you were invited to put in a submission when we called for submissions at the commencement of this inquiry, you declined to put a submission in and then put one in at a later stage. Is that right? Dr Thom-No, not to my knowledge. Senator FERGUSON-You have never declined? Dr Thom-No. Senator FERGUSON-I will have to correct the information that I got. Ms Harris, you talked about the visits by the Human Rights Subcommittee to the detention centres, and said that there was a long list of human rights issues that were raised. In fact, as chair of that subcommittee, I can say that there was not a long list. There were 20-odd recommendations but they did not all relate to human rights matters. I would not want the record to show that there was a long list. There were some issues raised-I agree with that-but not a lot. Ms Harris-It was an excellent report, Senator. CERTAIN MARITIME INCIDENT CMI 1484 SENATE-Select Wednesday, 1 May 2002 Senator FERGUSON-Yes. Having spent some four months at the United Nations, nearly every problem that was created and attempted to be solved was because each of the 189 member states regarded their sovereign boundaries and their national sovereignty as inviolable. In other words, no country could invade the sovereignty of another nation. Does that national sovereignty then not apply when it comes to an individual, or anybody who seeks asylum from outside? Does the country have no control over who might enter its borders? National sovereignty is the issue that is always raised whenever these matters of outside intervention by other countries come up, yet you seem to suggest to us that, if a person wants to seek asylum in Australia, they have a right to be here. Dr Pace-The basis of international human rights law is precisely the surrender of sovereignty with regard to certain aspects. Whenever a state ratifies an international human rights treaty, especially one of the six main ones, it is surrendering a portion of its sovereignty with regard to certain aspects. The presumption is that the state has primary responsibility for the protection of human rights of individuals within its jurisdiction. So long as that holds good, there is no problem. International human rights law exists for the purpose of ensuring that, when a state does not honour its international obligations, the international community has a duty to intervene. This is stated repeatedly in international human rights law, and it is an accepted principle. Having said that, from time to time, states react to this idea that they have surrendered bits of their sovereignty by ratifying international human rights law. Senator FERGUSON-If you took that to its extreme conclusion that people who are seeking asylum-I took you to say this earlier-have a right to enter this country to be processed, if all the 23 million refugees in the world decided that Australia was the place that they should be processed, Australia could not stop them from coming. Dr Thom-Again, I point you to EXCOM conclusions 15 and 58, which look at situations of mass influx, and that is where you start talking about burden sharing. In the same way that there are hundreds of thousands of people in Pakistan and Iran who have fled from Afghanistan, if they had put guns and tanks to stop those people- Senator FERGUSON-Can I stop you there? What do you call `mass influx'? That is what I would like to know. What number constitutes a mass influx? Dr Pace-Two million. Senator FERGUSON-So if fewer than two million people decided to come to Australia, that would not be a mass influx? Dr Pace-That would be like Pakistan had. Ms Harris-Like Rwanda, Tanzania, West Timor-hundreds and hundreds of thousands. The refugee convention was designed for individual cases of persecution, but primarily from Cold War countries-defections of belly dancers, scientists and so on. CHAIR-Most other questions can be put on notice at this hour, can they not? Senator FERGUSON-I accept your ruling, Mr Chairman. According to public opinion, some 80 per cent of Australians approve of the government's current policy on border CERTAIN MARITIME INCIDENT Wednesday, 1 May 2002 SENATE-Select CMI 1485 protection. If you were to suggest that 1½ million people should enter this country, where do you think public opinion would be then? Dr Thom-Fortunately, human rights are not about public opinion. Ms Harris-Yes, fortunately, human rights are not about public opinion. Senator MASON-That is exactly the point. Senator BRANDIS-That is exactly the point. CHAIR-I think Senator Brandis wants the call. If there is any more disruption he will not get it. You can have one last question, Senator Brandis. Senator BRANDIS-I want to give you an opportunity to answer the question that I put in an interruption, I must concede, to Senator Collins a few minutes ago. Through the miasma of rhetoric, you are trying to make a legal point which is getting lost in the political rhetoric. Can we come to the narrow legal point? CHAIR-I wonder whose fault that is. Senator BRANDIS-I am not larding legal propositions in political propaganda here. Is your legal point this: what makes the difference here, and on your view takes Australia outside its obligations under the convention, is the fact that the nations to which the refugees or asylum seekers have been diverted-that is, New Guinea and Nauru-are not parties to the convention? Ms Harris-No. Dr Thom-No, that is only a small part of what we are saying. We are saying that the fact that we are rejecting people at the frontier is part of the problem and that if people do make it to territories legislation has been passed that excludes those territories from the Migration Act. Senator BRANDIS-I wanted to understand how important that proposition was to your argument. For example, if, instead of being diverted to New Guinea or Nauru, these people had been diverted to New Zealand, a state party to the convention, would you still say that Australia, in doing that, is violating its obligations? Dr Thom-The answer is yes, and we would also have very serious problems with New Zealand in that circumstance, too. CHAIR-Any further questions can be put on notice. Everyone has to agree that we have had a fair shot, although I might say- Senator FAULKNER-I do not agree with that at all, but that does not matter. Senator JACINTA COLLINS-I do not think that is true. CERTAIN MARITIME INCIDENT CMI 1486 SENATE-Select Wednesday, 1 May 2002 CHAIR-In which case, we will leave open the question of whether we find another time in our program to call you back. At this hour we will close the proceedings. Thank you very much for your attendance. Committee adjourned at 11.23 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident THURSDAY, 2 MAY 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Jacinta Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Brandis, Jacinta Collins, Cook, Faulkner, Ferguson and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES KING, Commander Stefan Michael, Deputy Director Capability Resourcing Navy Capability, Performance and Plans Branch Navy Headquarters, Department of Defence .....................................1490 SIDHU, Ms Harinder, Senior Adviser, Defence, Intelligence and Security Branch, International Division, Department of the Prime Minister and Cabinet.......................................................................1550 Thursday, 2 May 2002 SENATE-References CMI 1489 Committee met at 9.34 a.m. CHAIR-I declare open this hearing of the Senate Select Committee on a Certain Maritime Incident. I call the committee to order. Today the committee continues its public hearings in relation to its inquiry. The terms of reference, set by the Senate, are available from the secretariat staff and copies have been placed near the entrance to the room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege, according to the provisions of the Parliamentary Privileges Act 1987. The action of a witness in giving evidence and producing documents and the evidence given cannot be used against the witness in any sense in subsequent proceedings before a court or tribunal. Senate standing order 181 declares: A witness examined before the Senate or a committee is entitled to the protection of the Senate in respect of the evidence of the witness. This is a declaration by the Senate that it will use its powers to protect witnesses against any adverse consequences arising from their giving evidence. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as the chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. CERTAIN MARITIME INCIDENT CMI 1490 SENATE-References Thursday, 2 May 2002 [9.37 a.m.] KING, Commander Stefan Michael, Deputy Director Capability Resourcing Navy Capa- bility, Performance and Plans Branch Navy Headquarters, Department of Defence CHAIR-I welcome Commander Stefan King. Do you have an opening statement of any sort? Cmdr King-Yes, I do. CHAIR-Is it in writing? Cmdr King-Yes, it is. CHAIR-Is it possible for us to obtain a copy so that so we can follow it while it is being presented to us? Cmdr King-Yes. CHAIR-We will arrange for one of the attendants to do that. There are no attachments unnecessarily involved? Cmdr King-No. CHAIR-Good. Please proceed. Cmdr King-I was the Australian Defence Force Liaison Officer in the International Division of the Department of the Prime Minister and Cabinet from 13 July 2001 to 21 January 2002. I have structured my submission on the premise that the Senate select committee wants to know what information was passed to me with respect to the photographs relating to the SIEV4 incident, what I did with that information and the context in which this occurred. I hope to save the members of this committee their valuable time by taking this approach. The Director of Operations, Navy-Commander Piers Chatterton-has said before this committee that he advised me on 11 October 2001 that the pictures that had appeared in the media showing people in the water were not related to the claims that unauthorised arrivals had thrown their children in the water on 7 October but were in fact related to the rescue of unauthorised arrivals from their sinking boat which occurred on the following day, that is, 8 October. I confirm that his statement in this regard is true. Commander Chatterton gave me this information face to face prior to us attending the daily strategic command briefing into the progress of Operation Slipper on 11 October. I am very familiar with Commander Chatterton's role in briefing the Chief of Navy daily on matters of operational significance. I was therefore prepared to afford a high degree of credibility to this information having regard to his close access to both the source of operational information, his immediate access to the Chief of Navy and the fact that this was obviously an extremely topical, sensitive, national issue. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1491 By my standards, this was in no way gossip. It was a briefing by a relevant person for a rele- vant purpose. Commander Chatterton also made a comment to the effect that it was evident that somewhere along the way some clarifying captions accompanying the pictures had become re- moved. I treated that information as plausible conjecture and afforded it credibility as such. I briefly acknowledged the information he had given me and we never discussed it again, as was appropriate. In the time I had to reflect on this information before returning to my office that morning, I gave consideration as to how I should treat it. Before discussing that, I would firstly like to give an outline to the committee of the way in which I conducted myself within the Department of the Prime Minister and Cabinet. My job was clearly to provide a service of liaison, advice and military experience into the Defence section of the International Division. There was a clear, spoken agreement that the liaison officer worked for PM&C and abided by their professional guidelines. These expectations included an absolute discretion about the things read, said and heard in doing business in that department, and about the general one-way flow of information; that is, into the department, not outwards. I wholeheartedly abided by those rules and hence I never gave Commander Chatterton any feedback as to what I had done with that information he had given me. In considering the information I had received, it was very clear to me that my function was to provide this advice to my two senior officers in International Division, such that they could advise their seniors as appropriate. My logic for this was that, in my three months experience in that department, it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and other ministers were consistent. As this issue was only a day or so old, I thought it could be corrected quickly. Following the daily Strategic Command briefings, it was my practice to brief my supervisor, Senior Adviser, Defence Branch, Ms Harinder Sidhu, on anything noteworthy arising from the brief and, if warranted, to also brief the Assistant Secretary, Defence Branch, Dr Hammer- noting that he was an exceptionally busy man. On this occasion, namely 11 October, I was able to brief the Senior Defence Adviser immediately on a few minor issues arising from the morning brief, and to pass to her the information that Commander Chatterton had given to me in respect to the pictures being erroneously reported in the media. The Senior Defence Adviser instantly agreed that this information warranted being passed to our Assistant Secretary and that she should join me in briefing him. The Assistant Secretary was too busy to see us in the forenoon, but we made an agreement to come back later in the afternoon. Often, in such situations, information would lose value as time passed and the Senior Defence Adviser would make a decision as to whether there remained an imperative to brief the Assistant Secretary, Defence Branch, in the light of rapidly changing order of priorities and his extraordinarily large workload. On this occasion, we conferred and agreed it was still very relevant to brief Dr Hammer. When the occasion presented that afternoon, the Senior Defence Adviser and I attended the Assistant Secretary's office and I advised him that a fellow Navy officer, attending the Strategic Command brief that morning, had told me that the pictures in the media showing people in the water did not relate to the claims made by the Minister for Defence that unauthorised arrivals were throwing their children overboard but, in fact, related to an event the following day when those same people were being rescued by the Navy from their sinking vessel. I also said that it seemed that the captions accompanying the pictures appeared to have been removed, however I CERTAIN MARITIME INCIDENT CMI 1492 SENATE-References Thursday, 2 May 2002 did not do so with the same gravity, noting the degree of conjecture I attributed to that information at that time. I assessed that the Assistant Secretary acknowledged that the information was sensitive but he did not give any indication to me about what action he would take in response, or what he might want me to do. In any event, I was given no instructions to pursue confirmation of the matter. As it was the nature of both Dr Hammer-and from my observations, the department-dealings on sensitive issue would often happen quickly, at higher levels without the knowledge of the desk officers, therefore I could not conclude that nothing was being done about the issue. In- deed, as the matter was very sensitive, it did not surprise me at all that I was given no further instructions, as I believed that if the Assistant Secretary wanted to act on this advice, he would have done so at his own level in the first instance. The subject was not raised in my presence again until, I believe, 8 November. On that date, the Senior Defence Adviser advised me that during the previous evening she had relayed to an officer of Social Policy Division the information that I had passed to her on 11 October. The Senior Defence Adviser had elected not to disclose the source of her information without the courtesy of discussing it with me first. The result of her discretion has been subsequent references to gossip being heard in a tea break. I maintain, however, that there has never been gossip at any level on my part associated with this issue. I was briefed and I briefed upwards appropriately. Thank you. CHAIR-Thank you, Commander. I think the rotation means that I should go to you, Senator Faulkner. Senator FAULKNER-Thanks, Mr Chairman. Commander King, I appreciate your explanation of the role of the Defence Liaison Officer who is posted to the Department of the Prime Minister and Cabinet. I was wondering whether it was your view that Commander Chatterton's communication to you was in accordance with the usual procedures and processes you would expect from an officer, in this case the Director of Operations-a normal communication from the Director of Operations to the Defence Liaison Officer in PM&C. Would that be how you would view it, or would you describe it in any way as exceptional? My question is: was that communication exceptional or unexceptional, in your view? Cmdr King-It was exceptional in the sense that it was one of probably one or two items of information that Commander Chatterton passed to me. It was not exceptional, in my mind, that he told me the information, because he understood that the nature of a liaison officer in any area is to facilitate movement of information. Senator FAULKNER-So is that what you would say was the reason that Commander Chatterton would have passed that information on to you? Cmdr King-Absolutely. Senator FAULKNER-I appreciate that it may be difficult for you to answer this; you may not be able to. I wondered whether you felt he would have an expectation of how you would deal with it. Would that be your view? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1493 Cmdr King-He may have an expectation but it was never a matter that passed between us. He would understand that my dealings within PM&C were for the business of that department. Senator FAULKNER-Are you saying to me that his expectation was that you would deal with that appropriately as you saw fit in terms of your role liaising with the Department of the Prime Minister and Cabinet? Is that basically the situation? Cmdr King-If the key words are `as I saw fit', yes. Senator FAULKNER-I think you made it clear, but let us establish it for the record, that you do think it was appropriate for Commander Chatterton to tell you what he did tell you? Cmdr King-Yes. Senator FAULKNER-You do think it was appropriate for Commander Chatterton to tell you what he told you in the way he did? Cmdr King-Yes, I do. Senator FAULKNER-With respect to the time and the forum, we know from evidence before this committee that it was effectively, as you have said, in the margins of an Operation Slipper briefing. Again, do you consider that to be quite appropriate? Cmdr King-Yes, I do, and I say that because it was an opportunity to meet face to face, so there was no need to have a telephone call. We were in a secure area. He was discreet in that he spoke directly to me. The period of time was while waiting to be escorted from the entrance to the building to the secure briefing room. Senator FAULKNER-So at this stage you certainly would not have considered the communication to be gossip. He has told us he did not. You are pretty clear on this point, aren't you? Cmdr King-I am very clear-because of who he was, the manner in which he told me and the purposes for which I considered that he told me. Senator FAULKNER-That was your view at the time? Cmdr King-Absolutely. Senator FAULKNER-And it is still your view? Cmdr King-Yes. Senator FAULKNER-If this process was a conduit of information, if you like, how out of the ordinary was that, if at all? I want to really understand if you considered this to be effectively standard operating procedure for you, for the director of operations and for others who might be communicating matters of concern. Is that how you would define it? CERTAIN MARITIME INCIDENT CMI 1494 SENATE-References Thursday, 2 May 2002 Cmdr King-It is a difficult question to answer, because it is a fairly large question and there are many scenarios in which you would differently treat an answer to that question. I do not know that I can give you much more than that. Senator FAULKNER-Okay, I think you have canvassed that issue for us. You indicated in your opening statement in paragraph 7 that you reflected on how you should treat that information. Because you put that in your statement, I gather that it was not just a passing thought, that you actually put your mind to an appropriate way of dealing with the information after it had been provided to you by Commander Chatterton. Is that fair? Cmdr King-Yes, I did. It was not information to be trifled with, I felt. Senator FAULKNER-Given that, can we work through what occurs then. If I can again take you to your opening statement, I think paragraph 10 is where the process begins. Your procedure is to brief your senior defence adviser, Ms Harinder Sidhu. That was the normal procedure when you were the defence liaison officer, I understand? Cmdr King-Yes. Senator FAULKNER-And also Dr Hammer. I do note, in the case of Dr Hammer, you qualify your statement by indicating that he is exceptionally busy. That, I assume, means that you would brief Dr Hammer if and when available. Would that be the case? I just want to understand this, because of the qualification you put there noting that he is exceptionally busy. I assume that means that sometimes you were not able to provide an immediate briefing as you could with Ms Sidhu. Would that be right? Cmdr King-That is correct. Senator FAULKNER-In this particular instance we are talking of, your first briefing is with Ms Sidhu. That is right, isn't it? Cmdr King-Yes. Senator FAULKNER-Where did that take place? Cmdr King-In her office. Senator FAULKNER-Do you have any record of the time that briefing took place? Cmdr King-It would have been about 11.30. Senator FAULKNER-At 11.30 a.m.? Cmdr King-Yes. Senator FAULKNER-On 11 October? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1495 Cmdr King-Yes. Senator FAULKNER-Could you indicate to the committee what the context and tone of that particular discussion with Ms Sidhu was, please? Cmdr King-We had an exceptionally good working relationship, so it was very convivial. I sat down in her office and gave some brief dot points on what had happened in the Operation Slipper meeting, and then I said words to the effect of, `I need to now pass you this other information that I have heard.' Senator FAULKNER-So it occurred in a sit-down meeting in Ms Sidhu's office. Cmdr King-Yes. Senator FAULKNER-Do you recall if Ms Sidhu took notes as you were speaking? Cmdr King-I recall that she did not. Senator FAULKNER-Okay. The outcome of that meeting, as I read your opening statement, is that you and Ms Sidhu agree to brief Dr Hammer. Cmdr King-Yes. Senator FAULKNER-Is that a decision that you come to jointly at the meeting in Ms Sidhu's office or is that something that Ms Sidhu determines? Cmdr King-I do not think I could define a point where that became evident. We just jointly understood and agreed. Senator FAULKNER-So the pair of you, at the meeting in Ms Sidhu's office, agree that the appropriate course of action is to brief Dr Hammer. Cmdr King-Yes. Senator FAULKNER-In this case, Dr Hammer is effectively your and Ms Sidhu's superior. Cmdr King-Yes. Senator FAULKNER-And that occurs at some point on the afternoon of 11 October. Are you able to be a little more precise for us as to what time it takes place? Cmdr King-I recall it was around 1530. Senator FAULKNER-All right, thank you for that. Before we move off your meeting with Ms Sidhu, do you know how long that meeting would have taken? Cmdr King-In the order of 10 minutes. CERTAIN MARITIME INCIDENT CMI 1496 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Do you know how long the meeting with Dr Hammer took? Cmdr King-Between five and 10 minutes. Senator FAULKNER-In relation to your meeting in the morning with Ms Sidhu, can you tell the committee whether there was any chance that the seriousness or content of the information that you were providing could be misconstrued? Could it possibly have been misconstrued by Ms Sidhu, do you think? Cmdr King-Again, it is difficult for me to answer. I do not know what her views were on the tenacity of the information, but I felt that at least the implications of the information were fairly obvious to her. Senator FAULKNER-But what was Ms Sidhu's response to you? She obviously thought it was appropriate to see Dr Hammer. Cmdr King-Yes. In fact, we actually tried to go immediately to his office to relay that information. Senator FAULKNER-I am aware that, from what you have said, you were not able to do that and you had to have that meeting a little later in the afternoon because, as you said, Dr Hammer was busy. That indicates to me that there is some understanding that the matter is important and serious and urgent. Would that be fair? Cmdr King-To my mind, yes. Senator FAULKNER-Would you have any reason to believe that was not Ms Sidhu's view, given that you immediately tried to pass the information on to Dr Hammer? Cmdr King-I would have no reason to believe that. Senator JACINTA COLLINS-Commander King, do you have reason to believe otherwise? Cmdr King-No, I do not. Senator JACINTA COLLINS-You have no reason, other than what you just discussed with Senator Faulkner, to believe that she took what you were saying to be serious and urgent? Cmdr King-Yes. Senator JACINTA COLLINS-You do have other information? Cmdr King-Sorry, I did not collect the question fully. No, I do not have any other information that would leave me to think other than that she understood the veracity and the importance of the information I was giving her. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1497 Senator FAULKNER-Do you yourself keep file notes or records of these sorts of meetings? Cmdr King-I had notes of Operation Slipper meetings-very brief and careful notes-but I did not have any notes of this adjunct to that meeting. Senator FAULKNER-I understand that. That is helpful, but what I was meaning to focus on was the meeting in Ms Sidhu's office. I wondered if you took a note of that. Cmdr King-No, I did not. Senator FAULKNER-Was your normal habit not to take notes of those sorts of meetings? Cmdr King-Correct. Senator FAULKNER-So later in the afternoon you and Ms Sidhu go to Dr Hammer's office to brief him, do you? Cmdr King-Yes. Senator FAULKNER-At approximately the time that you have mentioned to him- Cmdr King-1530ish. Senator FAULKNER-Was it you who reported the situation to Dr Hammer or was it Ms Sidhu or was it effectively both of you? Cmdr King-No, it was my briefing. Senator FAULKNER-Your briefing. Cmdr King-Yes. Senator FAULKNER-What was Dr Hammer's response? Cmdr King-It is difficult to explain. It is a series of expressions and body language, if you like, into acknowledging, `Yes, I hear that information,' but it is hard to give you anything more tangible than that. Senator FAULKNER-The information you provided at this point in these two briefings-I want to be clear on this-was the fact that the photographs did not depict children who had been thrown overboard. Cmdr King-Yes. Senator FAULKNER-It goes to the issue of the photographs as opposed to the incident itself. Would that be right? I am drawing a distinction here, just so you are clear, Commander, CERTAIN MARITIME INCIDENT CMI 1498 SENATE-References Thursday, 2 May 2002 between whether or not the incident occurs, that is, whether children are thrown overboard or not-that is one issue-and whether the photographs actually depict such an incident. Your briefing goes to the second issue, the photographs, does it not? Cmdr King-Precisely. Senator FAULKNER-It does not canvass the first issue, which is the broader issue of the claims in general? Cmdr King-That is right. Senator FAULKNER-We were just talking about Dr Hammer's response. Do you recall whether or not he took any file notes at that particular meeting? Cmdr King-From my recollection of the meeting, he was turned away from his desk and I do not believe he took any notes. Senator FAULKNER-I want to be assured that you are confident that Dr Hammer understood the import of your briefing to him. Are you satisfied about that? Cmdr King-Yes, I am. Senator FAULKNER-Could you say why? Cmdr King-My experience of Dr Hammer is that he is an extremely astute and intellectual man. In the trade you would say he does not miss a trick. Senator FAULKNER-So you are saying he got it on board, basically. Cmdr King-Yes. Senator FAULKNER-Did he say anything to you that made that clear to you? Cmdr King-I could not begin to re-create the conversation I had; nor would I try to. Senator FAULKNER-Fair enough. Did you get the impression that Dr Hammer knew of these concerns before you told him? Cmdr King-No. Senator FAULKNER-Did Ms Sidhu know about the information before you told her? Cmdr King-She did not let me know that she knew about it, and I did not believe that she did know about it. Senator FAULKNER-I appreciate that you cannot answer for her, but she did not say to you, `I already knew that,' or anything like that? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1499 Cmdr King-Correct. Senator FAULKNER-And nor did Dr Hammer. Cmdr King-Correct. Senator FAULKNER-So you got the impression that this was new information as far as both those officers were concerned? Cmdr King-Yes. Senator FAULKNER-Did you and Ms Sidhu and Dr Hammer then talk about outcomes as a result of that meeting that the three of you had? Cmdr King-No. Senator FAULKNER-So what happened at the meeting with Dr Hammer is that you briefed Dr Hammer, he responded in the way that you have outlined to the committee, and that concluded the meeting, did it? Cmdr King-Yes. Senator FAULKNER-There was no indication of any further action that Ms Sidhu or Dr Hammer might take? Cmdr King-Certainly not of any action Dr Hammer might take. If Ms Sidhu had been given instructions, I might have expected to have been aware of them, but I was not aware of any. Senator FAULKNER-What happened then? You and Ms Sidhu left Dr Hammer's office, I assume? Cmdr King-Yes. Senator FAULKNER-You say in paragraph 14 of your statement, `I assessed that the Assistant Secretary acknowledged that the information was sensitive but he did not give any indication to me what action he would take in response, or what he might want me to do.' How were you able to make the assessment that the assistant secretary acknowledged that the information was sensitive? Cmdr King-It is not a precise science, I agree. It is body language, expression-maybe a pursed lip or a raised eyebrow. It was just a professional assessment that I made, and I am quite satisfied with it. Senator FAULKNER-Was there any indication from Dr Hammer at that meeting that the information that you were providing to him was of significance and importance? CERTAIN MARITIME INCIDENT CMI 1500 SENATE-References Thursday, 2 May 2002 Cmdr King-I do not know that my answer goes beyond the previous question. There was nothing verbal, no. Senator JACINTA COLLINS-Commander, you said that he turned away from his desk. What do you mean by that? Cmdr King-His chair faces away from the door and he turned around to face us as we sat- Senator JACINTA COLLINS-I am sorry, you will have to repeat that. Cmdr King-Sorry, I have a sore throat. Dr Hammer's chair normally faces away from the door, but he turned around to face us as we sat to begin the meeting. Senator JACINTA COLLINS-So you are indicating that it was clear to you that you had his attention? Cmdr King-Yes. Senator JACINTA COLLINS-And that is all, though-him moving away from his desk? Cmdr King-Correct. Senator FAULKNER-Having formally briefed Ms Sidhu and Dr Hammer, did you have an expectation about what action those officers might take? Cmdr King-I guess I had two expectations: that he would say to me, `We actually need to define this issue more clearly and we need to formalise our understanding of it,' or he might do that himself. It was not a surprise to me that he would have gone about that himself. Senator FAULKNER-Did you have a view about whose responsibility it was to take action as a result of the briefing? Did you think it was your responsibility? Did you think it was Dr Hammer's responsibility or Ms Sidhu's responsibility? Cmdr King-That is not easy to define. My responsibility was to conduct the work that I was asked to conduct. As a guest of that department, I abided by the way they did their business. Senator FAULKNER-But you must have a view as a serving Defence officer on what you believe to be the proper role and responsibility for correcting misinformation in the public arena? This was of sufficient concern to pass on to these two officers, so I am assuming that you had no expectation that it would just stay as two private briefings with senior officers in the De- partment of the Prime Minister and Cabinet. Cmdr King-I did have some personal views. Senator FAULKNER-Do you think they are personal views? At the end of the day, they would have been professional expectations about what would happen, wouldn't they? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1501 Cmdr King-My professional expectation was most probably that Dr Hammer would call somebody at his level-perhaps Air Vice Marshal Titheridge-and ask him whether there was any truth to the issue and at least establish in his own mind that there was. Senator FAULKNER-Did you have a concern that there might have been inaccurate information actually supplied by Defence? Cmdr King-I did not, but that in itself might not be robust enough. Senator FAULKNER-Would you describe the two meetings you had on that day as formal meetings-where you present a brief to officers? Cmdr King-Yes. Senator FAULKNER-So you would not describe them as `gossip'? Cmdr King-I was not leaning in the doorway. Senator FAULKNER-So you are comfortable with the description of the meetings as formal meetings or formal briefings of senior officers in the Department of the Prime Minister and Cabinet? Cmdr King-Yes. Senator FAULKNER-In paragraph 16 of your opening statement you say that the subject was not raised in your presence again until 8 November. Did you raise this issue with anyone before 8 November? Cmdr King-Not formally. Informally I may have made comments about subsequent reports in the media, such as `Oh, that issue is still around.' Senator FAULKNER-But you are drawing a distinction here between anything you may have said in that regard as opposed to what occurs on the 11th, which you would describe as your fulfilling your formal responsibility as the Defence liaison officer? Cmdr King-Agreed. Senator FAULKNER-So you might have had other informal discussions. That might have included PM&C officers and the like? Cmdr King-I would only have been with my immediate colleagues. Senator FAULKNER-When you say `immediate colleagues' that could be people in PM&C and/or Defence, or just Defence? Cmdr King-No, only my immediate colleagues in the International Division. CERTAIN MARITIME INCIDENT CMI 1502 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Not Defence but PM&C officers? Cmdr King-Correct. Senator FAULKNER-In relation to what occurred in November, you say in your opening statement that the senior Defence adviser-that is Ms Sidhu-advised you that the previous evening she had relayed to an officer of Social Policy Division the information that you had passed on to her on 11 October. Do you recall where Ms Sidhu advised you of that? Cmdr King-In her office. Senator FAULKNER-Was that a formal or semi-formal discussion about the issue? Cmdr King-That was informal. It was a morning greeting and an exchange of pleasantries on what had happened the night before. Senator FAULKNER-Did she name the officer of the Social Policy Division? Cmdr King-If she did I do not recall that at the time. Senator FAULKNER-You said in your opening statement that Ms Sidhu had elected not to disclose the source of her information without the courtesy of discussing it with you. Could you explain that? I'm sorry-I am just changing the tense of your statement to make it sound more logical because I do not want to read it in the first person. CHAIR-You should not be concerned about this, Commander, because Senator Faulkner has even accused me of uttering a sentence that did not contain a verb at one stage. Senator FAULKNER-Well, if the cap fits! Would you just be able to expand on that statement you make about the disclosure of the source of the information, please? Cmdr King-It is my recollection that a senior adviser had been surprised when she related the information the night before. She had been surprised that this person was not aware of it. I guess she was then a bit careful in giving information that she did not own and just simply wanted to discuss that with me first. Senator FAULKNER-So is the import of what of you are saying there that it appears that, while you and Ms Sidhu may have been aware of this situation from 11 October, Ms Sidhu was saying to you that others did not know about it? Is that the thrust of it? Cmdr King-I would not take it to such a point. She simply expressed that the individual she had told had been surprised by the information. Senator FAULKNER-Did she say why she had passed on that information to an officer of the Social Policy Division that evening? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1503 Cmdr King-Yes, broadly. I understand that she had come down to see if the International Division had had some documents or reports or signal traffic relating to reporting of the SIEV incident and they had thought that maybe we had had some of that documentation on file. They had come down that evening to try and find it. Senator FAULKNER-So it was in that context? Cmdr King-Yes. Senator FAULKNER-I think Ms Bryant may have talked about this. Senator JACINTA COLLINS-This was when she acquired sit reps 59 and 60? Senator FAULKNER-Yes. And then you go on to say: The result of her discretion has been the subsequent references to `... gossip being heard in tea breaks'. So how do you reflect on Ms Sidhu's motivations here? Is she trying to protect you in this instance or is there some other motivation? Have you thought about that? Cmdr King-I think she was extending a very professional personal courtesy to myself, and I was grateful to her. Although it was not professionally necessary, I was grateful for her consideration in doing so. Senator FAULKNER-So you thought that was appropriate? Cmdr King-No, it was not appropriate because it was not necessary. I am simply saying that I was grateful for her consideration of me in doing so. Senator FAULKNER-But what happens of course, partly as a result of this it seems, is that a formal briefing is yet another situation where Defence passes on to the Department of the Prime Minister and Cabinet crucial information about the events that this committee is looking at, and it gets redefined as `tearoom gossip'. That is a problem, isn't it? Cmdr King-With respect, I guess that is conjecture for you to make. Senator FAULKNER-You do not think it was tearoom gossip? Cmdr King-Absolutely not. Senator FAULKNER-These are your formal briefings. Cmdr King-Yes. Senator FAULKNER-But, at some point, some of that information has been defined as `tearoom gossip'. It is true that it has been defined by some as `tearoom gossip', isn't it? CERTAIN MARITIME INCIDENT CMI 1504 SENATE-References Thursday, 2 May 2002 Cmdr King-Yes. Senator FAULKNER-So you do have a process where it goes from what are, in your mind, formal and appropriate briefings-two of them-the content of which ends up being described as gossip. Cmdr King-Yes. It was obviously a convenient form of words that stuck. Senator FAULKNER-Because you actually make the point in your opening statement, you say: I was briefed, and I briefed upwards appropriately. You make that statement and I am sure you stand by it, don't you? Cmdr King-Absolutely. Senator FAULKNER-Were you surprised after your original briefings on 11 October that no correction was made publicly? Cmdr King-Yes, I was. Senator FAULKNER-You were surprised? Cmdr King-Yes. Senator FAULKNER-Why were you surprised? Cmdr King-Because it was getting national coverage and because I believed that enough people in the right places understood the error and that one would lead to it being corrected. Senator FAULKNER-You obviously would have had an awareness of what was occurring because, as we all know, it was during an election campaign. Were there any additional or extra concerns for you because of those sensitivities? Cmdr King-Not for me. Despite being a liaison officer in the department, I am still an offi- cer of the Australian Defence Force and I was observant of the caretaking provisions that were explained to us in the Department of the Prime Minister and Cabinet. But the treatment of in- formation, as a Defence officer, I guess I disassociated myself from in that context. Senator FAULKNER-That is fair enough. Can we just work through, in a logical way, the contacts that you had. On 11 October, you were briefed by Commander Chatterton and then you had the meeting with Ms Sidhu and then a subsequent meeting with Ms Sidhu and Dr Hammer? Cmdr King-Yes. Senator FAULKNER-You had no other contact, effectively, until 7 November? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1505 Cmdr King-Until 8 November-on that matter. Senator FAULKNER-On 8 November, was it just limited to the discussion with Ms Sidhu? Cmdr King-Yes. Senator FAULKNER-What contacts did you have with Defence and PM&C officers after 8 November? Cmdr King-Very briefly, at some time in early December I got a call from Defence to ask whether I could assist, in my role as DLO, the task force within PM&C-Ms Bryant's task force-to facilitate access to some key individuals for interviews. I had a limited role in doing that. Senator FAULKNER-What was your limited role there? Cmdr King-I called Air Vice Marshal Titheridge's office and arranged a time for him to be available to be interviewed by Ms Bryant. It was of that nature. Senator FAULKNER-So it was just tick-tacking and organising an interview between Air Vice Marshal Titheridge and Ms Bryant? Cmdr King-Yes. Time was against them and they just needed some assistance in facilitating it. Senator FAULKNER-That occurred in early December. Were there any other contacts after that? Cmdr King-I left the department in early January. Senator FAULKNER-Yes, you have a new role, haven't you? Where are you now? Cmdr King-I am now within naval headquarters at Russell. Senator FAULKNER-So you left the department when-in early January? Cmdr King-Yes-the 21st, from recollection. Senator FAULKNER-Did you have any contact with PM&C officers on the issue this committee is investigating up until you left in early January? Cmdr King-Nothing germane to the committee, I do not believe. I cannot think of anything. Senator FAULKNER-What about contacts with any Defence personnel in the period in which you were the DLO in PM&C? CERTAIN MARITIME INCIDENT CMI 1506 SENATE-References Thursday, 2 May 2002 Cmdr King-In respect of this issue? Senator FAULKNER-Yes. Cmdr King-No. Senator FAULKNER-Did you have any contact after you left your former role as Defence Liaison Officer with PM&C? Did you have any role with Defence personnel or other Commonwealth officers after that early January period? Cmdr King-Yes, there have been a range of contacts, some to do with the officers I handed over to, with some questions about issues. There were some telephone calls and emails about possible preparations for departmental submissions to this committee, which in the end did not come about. Senator FAULKNER-You have just outlined two broad categories. Are you saying in relation to the first category that you had a new Defence liaison officer in PM&C and you were-what?-assisting that liaison officer during the handover period? Cmdr King-Yes. Senator FAULKNER-Was some of what you discussed with that liaison officer around the `children overboard' incident? Cmdr King-No, not specifically, other than that I perhaps once asked him if he was aware of whether a date had been established for submissions or if there was any indication that I was going to be asked to contribute. Most of that liaison was with Ms Sidhu. CHAIR-Commander, these are the submissions that did not eventuate because of the cabinet decision for departments not to make submissions. Cmdr King-Yes. Senator FAULKNER-In the second category, which the chair was just touching on, regarding the issue of departmental submissions, can you give us an explanation of what your role is? You were the Defence liaison officer when these events took place-I appreciate that- but by this point you had left your liaison role with PM&C. That is right, isn't it? Cmdr King-Yes, but of course the issue was still getting an airing in the Finance and Public Administration Committee hearings and in other areas. I guess I had an expectation that I might be called to give a contribution. I had asked Ms Sidhu if that was imminent, and there was one time when she said to me that Ms Bryant had indicated to her that submissions might be called for at any time. Senator FAULKNER-Did you want to make a submission or did you think it was appropriate for you to make a submission in the circumstances? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1507 Cmdr King-I could not see how I would not be included in a submission. I had already been named in Hansard at the Finance and Public Administration Committee, and I just assumed the link had been created. Senator FAULKNER-Anyway, you were not asked to make a submission. Cmdr King-No. Senator FAULKNER-Who did you make contact with over that or who made contact with you? Cmdr King-Within an exchange of some social email, Ms Sidhu had said that Ms Bryant had indicated that some statements might be called for-but that was only me reading that that might include me. Senator FAULKNER-Yes, sure. Cmdr King-I said, `Well, I'm standing by. Give me a call if they want to- Senator FAULKNER-But you are saying to us that you thought it may well have been appropriate for you to have made a submission to the Powell or Bryant inquiries. Is that right? Cmdr King-Yes. Senator FAULKNER-Anyway, you did not, as we know. Did you have any other contact with Defence, ADF officers or officers of PM&C? Cmdr King-Yes. At the time when there was an expectation that a submission may be crafted, I met with Dr Hammer and Ms Sidhu on an occasion just to, if you like, ensure the consistency of our understanding and recollections. Senator FAULKNER-Whose idea was that meeting? Cmdr King-I was invited by Ms Sidhu, presumably on behalf of Dr Hammer. Senator FAULKNER-And the purpose of that was to ensure consistency of your evidence before this committee? Cmdr King-I probably had recollections-I mean, some time had passed since I had left the department. Senator FAULKNER-Sorry? Cmdr King-Some time had passed at that stage since I had left the department, and Christmas had been, so I guess it was just to compare our recollections of events. Senator FAULKNER-So when were you invited to that meeting? CERTAIN MARITIME INCIDENT CMI 1508 SENATE-References Thursday, 2 May 2002 Cmdr King-I received the invitation when I was in Sydney, from a message on my phone on the Saturday morning. I was unable to attend at that time, and we had a subsequent- Senator FAULKNER-What did the phone message say? Cmdr King-Just that Dr Hammer was wondering if I would be available to get together with him and her to discuss our recollections. Senator FAULKNER-Do you have a date for that? Cmdr King-I was at a 20-year reunion. As I recall, it was on the weekend of 9-10 March. I gave my apologies that I would not be able to return from Sydney in time to have the meeting, and we subsequently spoke on Monday morning. Senator FAULKNER-Was Ms Sidhu proposing a weekend meeting? Cmdr King-Sunday afternoon, yes. Senator FAULKNER-A Sunday afternoon meeting-where? Cmdr King-I am a little vague on that. I cannot recall if it was at the office or at the home of Dr Hammer. I really cannot recall specifically, because I was unable to attend. Senator FAULKNER-So you are saying to us that Ms Sidhu and Dr Hammer were proposing to have a meeting with you on a Sunday afternoon, possibly at Dr Hammer's home, to discuss the evidence that you would be giving to this committee? Cmdr King-I am not saying `to discuss the evidence', no. Because I did not accept the in- vitation, I did not get into the intent of the meeting. Senator FAULKNER-Why didn't you accept the invitation? Cmdr King-I was in Sydney. Senator FAULKNER-Is that the only reason you did not accept the invitation? Cmdr King-It had been a long night, I had risen late on the Sunday morning and I did not feel that I was ready to rush back from Sydney to do that. Senator FAULKNER-I just asked: is that the only reason you did not accept the invitation? Cmdr King-Predominantly, yes. Senator FAULKNER-Were there other reasons that you did not accept the invitation? Cmdr King-I also felt I was not prepared sufficiently. I had not constructed any detailed position on these things yet, and I would much rather have been better prepared to do that. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1509 Senator FAULKNER-Did you think it was appropriate? Cmdr King-That is a difficult question. I guess there could be a number of reasons why, at the time, it was appropriate for Dr Hammer. They were very busy people, and weekend work was not unusual for them, I guess. Senator FAULKNER-I am talking about you. Did you feel comfortable being asked to attend such a meeting? Cmdr King-There are many circumstances in which you adapt, and that would have been one of them. It would not have been my first choice of timing and I thought perhaps a little unusual. Senator FAULKNER-It sure is a little unusual; you are right about that. Is it fair to say that you felt uncomfortable about attending such a meeting? Cmdr King-I do not want to use those words. An issue was avoided. We met the following Monday. CHAIR-I am sorry, we did not hear your answer. Cmdr King-Because I was unable to attend the Sunday meeting, we arranged that I would be available to meet on the following Monday. Senator FAULKNER-So you met the next day? Cmdr King-Yes. Senator FAULKNER-Where did that meeting take place? Cmdr King-In Barton; I went across to their office. I combined two items of business on the same trip. Senator FAULKNER-So that meeting was on 10 March? Cmdr King-On 10 or 11 March. Monday was the 11th, I think. Senator FAULKNER-Sorry, 11 March. What was discussed there? Cmdr King-There were two items. First, PM&C had extended to me the opportunity to recreate my Outlook account, which is my electronic diary, so I could go through that if I wanted to, and I took that opportunity. Second, we had a reasonably short discussion about how we recollected individually the briefing we had all had. Senator FAULKNER-What did Dr Hammer and Ms Sidhu say to you at this meeting on 11 March about your evidence? CERTAIN MARITIME INCIDENT CMI 1510 SENATE-References Thursday, 2 May 2002 Cmdr King-Nothing about my evidence, just my recollections. Senator FAULKNER-What did they say to you about your recollections? Cmdr King-There were some aspects about which we agreed to disagree that our recollections were different, and I was happy with that. Senator FAULKNER-Were you asked to go through your recollections? Cmdr King-Our recollections were limited to a single point in time; it was a short briefing. Dr Hammer thought it would be helpful, due to my lack of experience in these forums, for him to put a position to me that you might ask and I could have the benefit of answering that as I might answer it to you. Senator FAULKNER-So Dr Hammer pretended to be a committee member? He would probably do a lot better than us, anyway! Was it like a practice session? Cmdr King-Yes. Senator FAULKNER-Was there a worry that you might say something that Ms Sidhu or Dr Hammer were not comfortable with? Let us not beat around the bush here; I am just trying to understand what is going on. Cmdr King-I do not believe there was a worry, as you put it. Senator FAULKNER-What was it? What is a better way? I don't want to put words into your mouth, so you describe it in a way that you are comfortable with. Cmdr King-I don't think I can offer too much. Senator FAULKNER-Was this an informal meeting this time or a formal meeting? Cmdr King-I would say it was informal. We were relaxed. Senator FAULKNER-Was it in Dr Hammer's office? Cmdr King-No, I think we had taken the opportunity to have a cup of coffee at a local venue across the road. Senator FAULKNER-What was the venue that was organised for the meeting? Cmdr King-The Kurrajong Hotel. Senator FAULKNER-So it was not in anyone's office? Cmdr King-No. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1511 Senator FAULKNER-So you are invited to a meeting at Dr Hammer's home on the Sunday and at the Kurrajong Hotel on the Monday to discuss your evidence before the committee? Cmdr King-If it was at the home on Sunday-I do not quite recollect-then that is true, and then yes, on Monday. Senator FAULKNER-Can you say to the committee when you went to the Kurrajong Hotel with these two more senior officers from Prime Minister and Cabinet whether you felt uncomfortable about the informal discussion at the Kurrajong Hotel? Cmdr King-No, I did not, because I had satisfied myself as to what I was going there for and what I was prepared to do at that meeting. Senator FAULKNER-How had you satisfied yourself as to that? Cmdr King-Again, it is difficult to express. You don't tend to formulate positions on these things. I was prepared to share my broad recollections and I was happy to hear theirs. Senator FAULKNER-Did either Ms Sidhu or Dr Hammer tell you why they wanted to hear what your broad recollections were? Cmdr King-Not specifically, other than just to ensure some consistency in our recollec- tions, if that was possible. Senator FAULKNER-What were you prepared to do at the meeting, Commander King? Cmdr King-When asked the question about answering questions I might be asked by this committee, I explained that I was prepared to talk only in broad terms because I still had not fully prepared my statement with regard to my full recollections to the extent that, if I were to answer in detail to him, I might actually contradict what I said later when I had had more time to fully prepare myself. Senator FAULKNER-What did they want you to do at the meeting? Cmdr King-I cannot answer that question. Senator FERGUSON-How do you expect him to know what they wanted him to do? He cannot read their minds. Senator JACINTA COLLINS-They may have told him. Senator FAULKNER-With respect, Senator, I want to know whether there were efforts made to suborn the witness. Senator FERGUSON-I know what you want to know, but he cannot be expected to know what is in another person's mind. CERTAIN MARITIME INCIDENT CMI 1512 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-That is what I want to know, and I am going to find out. It may take days and days, but I am going to find out. Senator FERGUSON-You may. Senator FAULKNER-I promise you. CHAIR-Order! The witness is here for questions. Debate is for meetings. We are in a session for questions. Please proceed. Senator JACINTA COLLINS-There may have been an agenda, Senator. Senator FERGUSON-Well, you are into the agenda- CHAIR-Let's save the debate for when we want to have it. We can have it any time. The witness is available now. Senator FAULKNER-What I would like to know, Commander King, is whether it became clear to you that the others who attended this discussion at the Kurrajong Hotel had different expectations to you. Cmdr King-Different expectations? Senator FAULKNER-Yes. Cmdr King-I do not believe I could give you an answer that gets close to what you want. Senator FAULKNER-Were you asked about things that you were uncomfortable in responding to? Cmdr King-I was not comfortable to give a detailed answer that might be construed as one that I would give before this committee. Senator FAULKNER-Were you asked to do that? Cmdr King-In the sense that Dr Hammer invited me to the opportunity to have a sense of how you might ask a question and how I might answer it. Senator FAULKNER-Were you asked to do that? Cmdr King-Yes. Senator FAULKNER-Who by? Cmdr King-Dr Hammer. Senator FAULKNER-Did you do it? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1513 Cmdr King-No. Senator FAULKNER-Did you feel that he was trying to suborn your evidence or suborn you as a witness? Cmdr King-I might ask for a definition of `suborn'. Senator FAULKNER-And I cannot provide one. I would have to look it up in the dictionary, to be honest. Senator MASON-To influence your testimony. Cmdr King-Thank you. No. Senator FAULKNER-But at that discussion at the Kurrajong Hotel you did indicate to Dr Hammer that you were not willing to answer his questions? You made that clear to him, obviously. Cmdr King-To give a detailed answer as I might before this committee. Senator FAULKNER-What was his reaction to that? Cmdr King-I think we just moved on to a discussion in broader terms. Senator FAULKNER-Why was it so important to Dr Hammer? Cmdr King-I do not know. Senator FAULKNER-You have no idea? Did you start to get the impression that your testimony at this committee was of some significance to certain officers of the Department of the Prime Minister and Cabinet? Cmdr King-No, I did not get that sense from that forum. I had that sense already-nothing was added to that. Senator FAULKNER-But you did not engage in the practice session? Cmdr King-No. Senator FAULKNER-Why not? Cmdr King-Because I did not want to say something then that I might contradict later when I had had more time to consider my answers. Senator FAULKNER-How long did the discussion take at the Kurrajong Hotel? CERTAIN MARITIME INCIDENT CMI 1514 SENATE-References Thursday, 2 May 2002 Cmdr King-It took about 15 or 20 minutes. It may have been longer. It seemed like that. We had a cup of coffee. Senator MASON-You had a cup of coffee? Cmdr King-Yes. Senator FAULKNER-Were there any outcomes from the meeting at the Kurrajong Hotel- what happened next? Cmdr King-I spent some time, probably the week after, preparing an outline of events or starting to craft a statement. Senator FAULKNER-Did Ms Sidhu and Dr Hammer suggest you do that? Cmdr King-No. Senator FAULKNER-Did you decide to do that of your own initiative? Cmdr King-Yes. Senator JACINTA COLLINS-Did you have alternative advice from within Defence, for instance? Cmdr King-No. Senator FAULKNER-I am not critical of this at all. The Defence liaison team are properly and, in my view, appropriately assisting Defence witnesses, as well as assisting this committee. I assume you have had some assistance from the Defence liaison team for this committee? Cmdr King-Yes. Senator FAULKNER-That is as it should be. I do not think any committee member would be critical of that at all. CHAIR-We have specifically given approval for that to occur. Senator JACINTA COLLINS-In fact, in some cases witnesses have had representation. Were you offered that opportunity? Cmdr King-Yes, I was. Senator FAULKNER-Not as a result of what occurred at the Kurrajong Hotel, you began to prepare, in mid-March, your opening statement for this committee? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1515 Cmdr King-Yes. I had crafted an outline of events, a broad memory dump, if you like. I had put that aside in February. As the discussions seemed to suggest that a submission might be called for, I started to craft that into a more formal contribution. Senator FAULKNER-Did you get told at any point during this period what Ms Sidhu or Dr Hammer may or may not have done with the information that you provided to them on 11 October? Cmdr King-No. Senator FAULKNER-That was never canvassed? Cmdr King-Correct. Senator FAULKNER-The outcomes of your two formal meetings on 11 October were never canvassed? Cmdr King-Never. Senator FAULKNER-Did you talk to Dr Hammer or Ms Sidhu about the contents of your opening statement for this committee? Cmdr King-No. Senator FAULKNER-You had only the Defence liaison team? That is fair enough; I understand that that is as it should be, if that is the case. So you had contact only with the Defence liaison team about your opening statement? Cmdr King-They asked me whether I wanted any assistance and whether I felt I could make a useful contribution to the Defence submission. I said that I did not want to do that. I felt that my statement was something that belonged to the Department of the Prime Minister and Cabinet submission and that it was only fair that, if called, I submit through that department. They respected that and offered me independent legal advice if I required it. Senator FAULKNER-Which you did not accept? Cmdr King-I accepted one initial session with a reserve lawyer, just to have a look at the language. Thereafter I said that I believed I did not need legal representation. My involvement in this matter is fairly simple and I trust the committee. Senator FAULKNER-Did you have any contact after the Kurrajong meeting on 11 March with Ms Sidhu or Dr Hammer up until today's hearing? Cmdr King-Ms Sidhu was on holiday overseas for five weeks so I had no consultation with her- Senator FAULKNER-She's lucky. CERTAIN MARITIME INCIDENT CMI 1516 SENATE-References Thursday, 2 May 2002 Cmdr King-There are two other aspects. I sent an email to Mr Jeff Whalan in the Department of the Prime Minister and Cabinet on 28 February. I did that purely to disclose to him my contact details in my new position-where I was-so he could get hold of me, and advised him of the protocols for calling an officer of another department. I said that it would probably be convenient if he did that through the Vice Chief of the Defence Force, who was the sponsor of my billet in PM&C. I did that purely to facilitate them calling me when the time came. Senator FAULKNER-Was that to Jeff Whalan? Cmdr King-Yes. I understood that he was going to head the submission. Senator JACINTA COLLINS-This was following the discussion of your name in Senate estimates? Cmdr King-Around that time, yes. Senator FAULKNER-The submission does not happen, as you know, anyway. Cmdr King-Yes. That was when I thought the whole matter had gone away, as far as I could see. The only other communication I had was a letter from Dr Hammer. Senator FAULKNER-When did you receive the letter from Dr Hammer? Cmdr King-1 May. Senator FAULKNER-What did that letter say? Senator JACINTA COLLINS-That was yesterday. Senator FAULKNER-Yesterday? Cmdr King-Yes. Senator FAULKNER-What did that letter say? Cmdr King-It is a letter of a personal nature that tells me that we understand that we had differing recollections. Senator FAULKNER-Oh, so it is about the evidence to the committee again? Cmdr King-I would guess, broadly. Senator FAULKNER-Would you be able to provide a copy of that letter to the committee, please? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1517 Cmdr King-I would just ask for clarification of whether that is something you want me to do, or- Senator FAULKNER-It is something I want you to do. CHAIR-You are being asked a question; it is for you to answer. If you feel uncomfortable giving an immediate answer, please take advice on it. But it is a legitimate question and it is for you to respond. Senator FAULKNER-I want to be clear: Dr Hammer sent you a letter yesterday about the evidence you are giving at the committee today? Cmdr King-I guess it gets to that point. Senator FAULKNER-I guess it does. Cmdr King-I am ambivalent about providing it. If you have asked for it, I guess I can give it to you. I own the letter, I presume. CHAIR-If it is a question of its confidentiality, there is a way in which it could be uttered into evidence and its confidentiality would be preserved. That may not be something that the committee is necessarily in favour of, but that is an avenue. I draw that to your attention. But it is a legitimate question and it is for you to respond to. Senator FAULKNER-We have got Dr Hammer coming before us. What I am asking is that the letter be provided either by Commander King or I will ask Dr Hammer. I do not much care about who provides it but we had better see it. CHAIR-I am not in any way querying the legitimacy of what you are putting, but because the witness has asked a question of me directly- Senator FAULKNER-And I will be continuing my questioning of this particular witness after I read the letter. CHAIR-Sure. But because the witness has asked a question of me directly, I think- Senator FAULKNER-We have got an extraordinary situation here, Mr Chairman, where there is a very great deal of interest in this witness's evidence amongst officers of the Department of the Prime Minister and Cabinet. I am not willing to say anything other than that at this point-including a request to meet Commander King at Dr Hammer's home, then a meeting that takes place the next day, 11 March, at the Kurrajong Hotel about his evidence. Now there is a letter that has been sent; I do not know about its contents. And I make no judgment. It would be silly to make a judgment in advance of looking at the letter. But at some point I would like to look at the letter. I think I understand why this is all so significant to the Department of the Prime Minister and Cabinet, because here we have yet another formal communication about the inaccuracy of the evidentiary support for the claims that children were CERTAIN MARITIME INCIDENT CMI 1518 SENATE-References Thursday, 2 May 2002 thrown overboard. But you might prefer us to have a private meeting at this point. I do not mind. Senator FERGUSON-Mr Chairman, we are due to have a morning tea break, anyway. CHAIR-We could have a morning tea break; it is 11 o'clock. Can I just say that the line of questioning that is being pursued is probably very fundamental to the efficacy of the inquiry. With respect to any suggestion that evidence may have been tutored or encouraged in one way or another-no-one is making that suggestion but that question is at large, given the circumstances-it is probably as well for that question to be resolved as quickly as possible. Since the witness has asked me a direct question, I am obliged to directly answer, and my answer has been that the question to you, Commander, is a legitimate question and it is for you to answer, but if you wish to take advice, that is understandable. Senator FERGUSON-He has the right to take advice, Mr Chairman. CHAIR-Yes, that is right. I am saying that that may be an appropriate thing, but it is for the witness to decide. At this point, we will break for morning tea. Proceedings suspended from 11.01 a.m. to 11.18 a.m. CHAIR-When we broke for morning tea there was the question of a letter to Commander Stefan King from Dr Brendon Hammer and I am now advised that there is no objection to this letter being brought forward. I have in front of me a copy of it and I intend to table it. I understand there is no objection in the committee to its public release. That being the case, it is so ordered. It is now therefore on the record. Senator Faulkner, you had the call. Senator FAULKNER-I know other senators want to ask some questions, so I will take a break from it in a moment and come back in a little while. I am not going to go at this point to the substance of the letter, Commander, apart from a process issue which you may not be able to assist me with, but if you can assist me I would appreciate it. It goes to the first paragraph of the letter you received, where Dr Hammer indicates: I have been advised by the head of Government Division in PM&C that you have expressed a concern that I may have sought to influence your testimony to the Senate Select Committee on a Certain Maritime Incident. As I say, I want to limit this to a process issue. Have you any understanding or awareness at all, in terms of maybe your contact with the Defence liaison team here, of how certain information-accurate or inaccurate; I am not even canvassing that at the moment-might get to the head of Government Division in PM&C so she might be able to advise Dr Hammer in the way she did? I think the head of Government Division is still Ms Belcher. Cmdr King-I do not know that I can do more than speculate how that might come about. I am not aware of it. I was stunned to read it. Senator FAULKNER-I was surprised to read it to. CHAIR-Who is the head of Government Division? What is their name? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1519 Senator FAULKNER-That would be Ms Barbara Belcher, who is very well known to Senator Mason and me, of course, as a very regular and very excellent witness at Senate estimates. CHAIR-You have the pleasure; I do not. But, now I know who it is, please proceed. Senator FAULKNER-I am sure it is Ms Belcher. She has been in that position for some time. A nod at the back of the room indicates that she is still there. Commander, are you aware of the nature of your evidence to this committee-I am talking here about officially, maybe by the Defence liaison team here-elsewhere having been discussed beyond the discussions that you have been involved in? Cmdr King-I wouldn't believe so. My discussions have only been with the Defence task force. Senator FAULKNER-The Defence task force? Cmdr King-Yes. Senator FAULKNER-Are you aware of any reporting out of the Defence task force, the Defence liaison team for this committee? I am not saying it is inappropriate. I am just wondering if that might have occurred. Cmdr King-To the extent that the task force would report to CDF directly. Senator FAULKNER-Do you think that has happened in this case or do you know it has happened? Cmdr King-Yes, I believe the task force has briefed CDF on the progress, as they are probably directed to report. Senator FAULKNER-In relation to your evidence, you mean? Which is fair enough. I just want to understand. Cmdr King-I presume that that would be the case. Senator FAULKNER-Do you know if it has gone any further than CDF? Cmdr King-Other than the fact that it has now turned up in Government Division? Yes I do, but the conduit by which it did I do not know. Senator FAULKNER-With respect, Commander, that is an assumption that you are making there. The reason I am asking these questions is that I may well be making the same assumption, and I never like to make assumptions. As my colleagues would always say, I deal strictly, strictly- Senator JACINTA COLLINS-Forensically. CERTAIN MARITIME INCIDENT CMI 1520 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Forensically with the facts, yes. I make a serious point. I do not want to make an assumption about what CDF may or may not have done with information that was available to him. Do you understand the point that I make? Cmdr King-Yes. Senator FAULKNER-I am asking you if you can shed any light on it. I am necessarily expecting you to be able to. I just wanted to clarify that process issue. If you cannot, I would understand that you could not and I would accept it. If you have any knowledge, I wonder if you could share it with the committee. That is my question. Cmdr King-It would seem logical to me that CDF being aware of whatever the task force reports to him would make briefings to his minister, as is appropriate, for the minister to do with it as he wishes. Senator FAULKNER-But that is an assumption on your part? Cmdr King-Yes. Senator FAULKNER-Anyway, I am sorry to have interrupted you. I just wanted to clear up that. CHAIR-You were not interrupting me. I was interrupting you, Senator Faulkner. Senator FAULKNER-I might come back a little later, because I do have some other questions. CHAIR-I have a couple of questions, Commander. If I can take you back to this fateful day at the Kurrajong Hotel. Senator BRANDIS-Senator Cook is entitled to resent that Senator Faulkner has had a monopoly on the Thespian skills in this committee. CHAIR-I think Senator Faulkner does the Thespian bit very well indeed. If there is an award though, I would certainly have to say, impartially, I would award it to you, Senator Brandis. Back to the Kurrajong Hotel. Where in the Kurrajong Hotel did the meeting occur? Cmdr King-Are you familiar with the layout, Senator? CHAIR-Reasonably. Cmdr King-Outside the bar there is an open area which faces a small courtyard. CHAIR-In a small courtyard-and that is where you drank coffee and chatted about this issue. Cmdr King-Yes. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1521 CHAIR-The evidence is that in this discussion there was a sort of practice run about what your recollections were. That is right, isn't it? Senator FERGUSON-I do not think he used the term `practice run', Mr Chairman. They discussed recollections. Cmdr King-Actually the word practice is pretty close. It was an opportunity for me to- Senator FERGUSON-I did not say practice run, though. CHAIR-Thanks for helping the witness, Senator Ferguson. I would rather- Senator FERGUSON-I have noticed Senator Faulkner has been helping him all morning, so I am just following suit. CHAIR-Yes, but thank you for helping him, too. Perhaps we could just let the witness describe what it was. Cmdr King-I said it was an opportunity for me to perhaps rehearse how I might receive a question and how I might go about answering it. CHAIR-Okay. How was the discussion led? Who went first? Did you offer up your views or did someone take charge of the discussion? Did Dr Hammer say, for example, `Let's just go through this?' Cmdr King-Dr Hammer always takes charge of the discussion. CHAIR-He is the senior figure, and that is what you would expect, isn't it? Cmdr King-Yes. CHAIR-So, how was it put to you-the purpose for being there? Cmdr King-It is a reconstruction that I make along the lines that: `It is a good opportunity for us to get together. It has been a while since we have seen each other, and this is just for us to put forward our recollections of the briefing and associated events such that we all understand where each other's recollections lie.' And, from there, the invitation was, `I will ask you a question as if I were the committee, and then you could answer it.' CHAIR-This is what has led to the jibe that maybe Dr Hammer was wanting to impersonate Senator Faulkner in his examination style. Can I just say for the record that I hope Dr Hammer had more flair than Senator Faulkner sometimes displays. Senator FAULKNER-I walked in at the wrong time! Senator FERGUSON-There has been a commentary on you, Senator. CERTAIN MARITIME INCIDENT CMI 1522 SENATE-References Thursday, 2 May 2002 CHAIR-The point is, you were having put to you by Dr Hammer questions that it was anticipated may be questions this committee would ask you. Cmdr King-We got to one question, yes. CHAIR-You got to one question? What was that question? Cmdr King-I truly do not recollect; I dismissed it. CHAIR-Can you give us any sense of-without recollecting the words put to you-what the import of it was? Did it open up this, for want of a better description, can of worms, inviting you to comment? Cmdr King-It is very difficult for me to try to do that because of how incorrect I might be. It was a simple question-I am sure that the leading question would have been broadly about describing the briefing as it occurred. That was most likely the question, but I would not say that that was the question, and I am sorry. CHAIR-But that is what you assume? Cmdr King-That would make sense. CHAIR-Did anyone else give their recollection before this question was asked? Cmdr King-I was the only person asked the question in that way. I know that Ms Sidhu said some words to the effect of her recollection about our discussion, our primary briefing. CHAIR-Did Dr Hammer appear to be reading from notes when he started this process-or he just extemporised? Cmdr King-Extemporised? CHAIR-He had no documents in front of him? Cmdr King-Correct. CHAIR-Just a cup of coffee? Cmdr King-Yes. CHAIR-So why was there only one question? If this was a `practice session', why was there only one question? What caused it to stop at that point? Cmdr King-Because I said that I did not want to provide a detailed answer in that way and would speak in general terms. CHAIR-Was there any question put to you about why you felt that way? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1523 Cmdr King-No. CHAIR-Your answer was accepted, was it? Cmdr King-By the indications at the time, yes. CHAIR-You felt your answer was accepted? Cmdr King-Yes. CHAIR-Was there any further effort to encourage you to say what, broadly, you thought? Cmdr King-Yes, there were further broad questions. CHAIR-Can you tell us how you answered those? Cmdr King-Yes. In broad terms. CHAIR-Without the degree of particularity of your statement. Cmdr King-Yes. CHAIR-But is your statement broadly a reflection of what you would have said? Cmdr King-The key elements of those paragraphs, yes. CHAIR-Is that where the discussion terminated? Cmdr King-There was general banter about recollections. There was probably a side discussion between Ms Sidhu and Dr Hammer about her recollections and her position, but that is for them to answer. CHAIR-So you were an onlooker within the group as Ms Sidhu described, broadly, her recollections of the circumstance to Dr Hammer? Cmdr King-Yes. CHAIR-Was this an iterative discussion? Was there a series of questions and answers or did Ms Sidhu take the same view that you took? Cmdr King-Yes, she probably did. There was no connecting series of statements establishing propositions as such. It was broad. CHAIR-To use the term that has been used to describe this, there was no `rehearsal' of Ms Sidhu? Cmdr King-No. CERTAIN MARITIME INCIDENT CMI 1524 SENATE-References Thursday, 2 May 2002 CHAIR-There was a series of questions to Ms Sidhu? Cmdr King-Yes. CHAIR-And a series of answers from Ms Sidhu? Cmdr King-Yes. CHAIR-But you cannot recall what they were-or can you? Cmdr King-No, I cannot recall what they were. I got the sense that Ms Sidhu probably was not showing all her cards, if you like-that there were aspects of her information that she had reserved for herself. CHAIR-She was not showing all of her cards. Was it at that point that the discussion terminated? You swallowed the last of your coffee and all departed, or did it continue? Cmdr King-Pretty much. Then we left together and I returned to PM&C. Senator JACINTA COLLINS-Just on this point: there is something that Commander King said earlier that pertains to this question. You indicated earlier that you agreed to disagree about recollections. Can I ask you to be a bit more specific about what you agreed to disagree on? Cmdr King-I do not think I can tell you what we agreed to disagree on. It would have been small aspects of the words that I may have said and the words that they may have recollected that I said. I do not believe it was substantial in that regard. Senator JACINTA COLLINS-Was your understanding of Ms Sidhu's recollections that they were consistent with your own? Cmdr King-The broad aspects of what happened I think we agreed were consistent and maybe on some minor aspects of how that was delivered there were some differences in recollections. Senator JACINTA COLLINS-Where was the inconsistency? Was it between yourselves and Dr Hammer? Cmdr King-There were certainly some aspects that we had differing recollections on, yes. I recall that that was the case, but what those instances were I felt no need to recall. Senator BRANDIS-Were those inconsistencies of recollection matters of detail or matters of substance? Cmdr King-More probably matters of detail. Senator BRANDIS-It would be a surprising thing, in ordinary human experience, if three people who had participated in a discussion and had another conversation about it some months CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1525 later had an identical recollection. That would excite suspicion. But, if three people recalling a discussion several months earlier have a like recollection of the substance but differ on the detail, that is ordinary human experience, isn't it, Commander? CHAIR-Senator Brandis is trying to help you by expressing an opinion of his own. Senator BRANDIS-I am putting a proposition to you and inviting you to tell me whether you agree with that proposition. Senator JACINTA COLLINS-You would suspect a rehearsal, wouldn't you, Senator Brandis? Cmdr King-There is absolutely room to agree with that proposition, yes. CHAIR-Could I go back to my line of questioning. Commander, looking at your statement, this is a well laid-out statement. You have numbered each paragraph: there are 17. Each paragraph deals with a separate aspect and it unfolds logically. It is a crisp, succinct statement of what happened. Back on this date, 11 March, did you feel the need to be reminded about what happened? Did you feel that need to go through a process of being reminded? Cmdr King-No, I did not. CHAIR-So this meeting did not occur from the point of view of any need on your part. Cmdr King-No. Senator FERGUSON-This thing you are talking about on 11 March: it is made to sound as though this meeting was a result of your having been called before the committee. In fact, on the 11th, you had not been called to give evidence before the committee, had you? Cmdr King-No, I do not believe anybody had. Senator FERGUSON-Did this meeting take place because you felt that there was a likely chance that you would be called before the committee? There is a lot of emphasis being placed as though you had been called and you were discussing your evidence. In fact, you were discussing recollections prior to ever being called before the committee, weren't you? Cmdr King-There was an understanding at that stage that we might be invited to put forward a submission through PM&C, and I think a logical extension of that was that we may be called as witnesses. Senator FERGUSON-If this meeting at the Kurrajong was taking place some five months or so after the event supposedly took place, wouldn't it be natural that people would get together to discuss what they could remember of a meeting that took place five months before? Cmdr King-It may well be natural and reasonable. CERTAIN MARITIME INCIDENT CMI 1526 SENATE-References Thursday, 2 May 2002 Senator FERGUSON-I would have thought it was, because I cannot recall meetings in detail that took place five months before. If I wanted to get some accurate recollection, I would discuss it with colleagues or whoever was there to see whether or not it jogged my memory, to see that we did have the full details. CHAIR-Senator Ferguson is trying to help you by expressing his opinion. Senator FERGUSON-Yes, I am trying to help, because that is what I do, and I am won- dering whether or not the people involved-you, Dr Hammer and Ms Sidhu-were doing ex- actly the same thing in order to try to refresh your recollections of what may have taken place. Cmdr King-It is very reasonable to have that view. CHAIR-But you are a commander in the Royal Australian Navy. Your training is to be able to report accurately on detail and on practical events. That is basically your training, isn't it, along with other things like sailing ships, flying planes and things of that nature? Cmdr King-It is certainly an outcome of the experience. CHAIR-As a key officer at commander rank, you need to be able to report to superiors crisply, succinctly and in detail what is happening in terms of the facts. Cmdr King-Yes. CHAIR-That is what your statement portrays here, and you have said in evidence that you did not feel that you needed to be reminded about that. So I think we can move on. Senator BRANDIS-May I ask a question arising out of an answer Commander King gave to Senator Ferguson, please. Commander King, you said that at the time this conversation took place in March you thought that there might have been a submission to this committee from PM&C. Can you expand on what you meant by that? Cmdr King-It was my understanding that before the meeting of this committee each department would be invited to put forward a submission. It was explained to me that I might be asked to contribute to that to save a whole host of witnesses coming forward individually-that was the natural process. Senator BRANDIS-That is what I rather expected you meant. Information, to use a neutral word, comes to this committee in a number of ways. It comes in the form of testimony, such as you are giving now, and it comes in the form of submissions, which are not sworn and, as we know from many of the submissions that we have received-you may not be aware of this-a lot of those submissions are jointly prepared. Do I understand you to be telling us that, at the time of this conversation, you were unaware of the form that any information from you to this committee would take-whether it would be in the form of a submission or in the form of testimony? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1527 Cmdr King-To the extent that I understand the question, that is true. I was not acutely aware of that process or how that would come about. Senator BRANDIS-You apprehended that the committee might want to know something from you-of which you would be the source or a source-but you did not know whether it would be a written submission or whether it would be, as you are giving today, testimonial evidence. You did not know in what form that information would come from you. Is that right? Cmdr King-I assumed that I would contribute a written document that would be incorpo- rated. Senator BRANDIS-Did you expect, at the time of this conversation, that the written document would be a document corporately on behalf of you and others from PM&C? Cmdr King-To the extent that my words stood alone, yes, it would be a corporate inclusion. CHAIR-On this point- Senator BRANDIS-No, let me- CHAIR-No, you are intervening on my call, Senator Brandis, so I will recover the call at this point, if I may. Senator BRANDIS-Try to recover. CHAIR-Yes, I will recover it. This is an important point, and we ought to tie it down. I understood from what you were saying earlier that you had a reasonable assumption-and correct my words if I am misstating it or emphasising it wrongly-that you may be called to give evidence and that this thinking was about what you would say if such an eventuality occurred. Is that right? Is my understanding correct? Cmdr King-Can I ask you to repeat it just so that I do understand it completely. CHAIR-From what you said earlier, I was led to believe-and I want to be careful as to whether I have understood this correctly-that you had a reasonable suspicion or belief that you may be called as an individual to give evidence about your recollections of this event, and this discussion was about what that evidence might be. Is that right? Cmdr King-Yes. Senator BRANDIS-May I come back, please. CHAIR-Yes. That is at odds with the corporate view that you were taking. Senator BRANDIS-I think it is a false dichotomy, with respect, Mr Chairman. Is this not the position, Commander King? I have listened with care to what you have said in answer to Senator Ferguson, to our chairman and to me. Let me tell you what I gather from what you are CERTAIN MARITIME INCIDENT CMI 1528 SENATE-References Thursday, 2 May 2002 saying and tell me if I am right and, if I am wrong, please correct me. As I understand you, the position on 11 March was that you had an expectation that you may be required to be of assistance to this committee by providing information in some form. Is that right? Cmdr King-Yes. I am only hesitating on the word `expectation'. It seemed logical to me that that would happen. Senator BRANDIS-You thought that was probably going to happen? Cmdr King-Yes. Senator BRANDIS-You were unaware of, or you had not turned your mind to, the manner in which you might be asked to provide that information, whether it would be by submission or by testimonial evidence? Cmdr King-Does testimony include- Senator BRANDIS-Testimonial evidence means what you are doing right now: appearing as a witness giving sworn viva voce evidence. Cmdr King-I thought that one of two things would happen: I would contribute a written statement to Mr Jeff Whalan or he might interview me. Senator BRANDIS-You thought you would probably be asked to be of assistance in some way, but you were not sure in what way that assistance would be sought from you but you thought it might be by submission? Cmdr King-Yes. That came about because I was remote from that department. Senator BRANDIS-And a submission-I think it is uncontroversial-is a written submission. To the extent to which you thought you might be involved in the preparation of a written submission, I understood you to tell me before that you thought that would be a corporate submission to which you would contribute. Is that right? Cmdr King-Again, to the extent that I understand what you are driving at, my statement would either be an enclosure to a submission or it would be incorporated text, standing alone within that submission. Senator BRANDIS-The suggestion-and Senator Collins articulated this in an interjection a few minutes ago-is that you were being, as it were, caused to rehearse your evidence. CHAIR-No, that is not a suggestion. That is what the witness said. Senator BRANDIS-That sounds sinister, but if, at the time this conversation happened, you were of a mind that perhaps the assistance you would give this committee would be in the form of a written submission to which you would be a contributor, then discussing the content of that CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1529 potential submission seems to me the most commonplace thing in the world. Would you agree with that? Cmdr King-I agree that you think that is the most commonplace thing in the world. Senator BRANDIS-Do you think it is the most commonplace thing in the world that if you are going to contribute to a written submission you discuss the contents of that submission with other people who may contribute to it? Senator JACINTA COLLINS-And then rehearse your testimony. Senator BRANDIS-Excuse me, Senator Collins- Senator JACINTA COLLINS-You have done enough of it yourself, Senator Brandis. Stop being so pompous. CHAIR-Order! Senator BRANDIS-Senator Collins, we are hear to find facts. CHAIR-I point out that I have got the call and I am indulging you, Senator Brandis, so- Senator JACINTA COLLINS-The pomposity is outrageous. Senator BRANDIS-Did you gather the question, notwithstanding the unhelpful and political interjection over there, or do you want me to repeat it again? Cmdr King-For the purposes of the question, it is, I am sure, perfectly reasonable for some people, or even me, to have that spin on the meeting. Any view is possible; it is just a matter of establishing it. Senator BRANDIS-Quite. So when you have this conversation, you do not know if you are going to be, as you are today, giving testimonial evidence. You do not know whether you are going to be contributing to a written submission. It is too early in the sequence of events for you to know that, but you do know that in one way or another you are probably going to be asked to provide some information in some form or another. Cmdr King-And that is my expectation. Whether other people were more aware of the progress of that because they are within PM&C, I do not know. Senator BRANDIS-No, of course not, and we will ask them. CHAIR-Can I come in here, because Senator Brandis was not in the room at the beginning of your evidence. Senator BRANDIS-No, I was listening to it on TV. CERTAIN MARITIME INCIDENT CMI 1530 SENATE-References Thursday, 2 May 2002 CHAIR-I am just saying that as a fact. Senator FERGUSON-He was, at the beginning. CHAIR-He wasn't in the room. Is that contested? Were you in the room and I didn't see you? Senator JACINTA COLLINS-No, he wasn't. CHAIR-He wasn't in the room. Senator FAULKNER-He was busy briefing the press gallery. Senator BRANDIS-No, I wasn't. You can ask them that. CHAIR-I understood you to say-and I think I put it to you before; anyway, the Hansard will show-that you had some reasonable expectation that you might be called to give evidence to this inquiry and that the `rehearsal' was about the sort of questions you would be asked by this inquiry, should you appear; that it was not that you would be a contributor to an overall omnibus submission from the department, although that was something with which you were engaged at some other point. Can you tell us what you understand was the role, given those variations of possibility? Cmdr King-The role of the meeting? CHAIR-Did you have an expectation that you might be called as a witness and appear before this inquiry? Cmdr King-Again, I hesitate on the word `expectation'. It just seemed perfectly clear and logical to me that it would happen. CHAIR-Yes. So what was in your mind was that, perfectly logically, it would happen that you would fetch up here before us at some time and speak to us about what the events were? Cmdr King-Yes. Senator FERGUSON-It is also just as logical that he might only have been required to make a written submission. You are trying to put it- CHAIR-Thank you for the help and assistance but I know how these things are weighted in the analysis that comes at the end of a report. The second point that I want to go back over is that the process was-it started out to be but it bogged down after the first question-a rehearsal of what might be said, the questions that might be asked of you and what your possible answers were. That was the process? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1531 Cmdr King-I think last time I said that the word `rehearsal' probably was not appropriate. It was expressed to me that it was an opportunity for me to gain some experience in receiving a question and answering it. CHAIR-Yes. You had not been appearing before a Senate body before. Now you have seen us in all of our disgusting glory, how much we are unified and agree and like each other. But you had not had that experience and this was a chance to expose you to what might be in store for you were you to appear. That is a fair call, is it? Cmdr King-I would have to say that is probably reading more into it than I would be prepared to speculate. CHAIR-Okay. So how would you describe it? Cmdr King-I would describe it as an opportunity for some gathering of information that perhaps was of interest to Dr Hammer just to see how we collectively review those collections. It was not for my benefit, I do not believe, but I am not saying that as a criticism. CHAIR-Yes. Senator FAULKNER-Can I follow up with a few questions. CHAIR-Not at all. I am very indulgent to Senator Brandis, so I can hardly be less indulgent to you, Senator Faulkner. Senator FAULKNER-l appreciate your extraordinary courtesy, Mr Chairman. There were two meetings sought with you, Commander King. One was on the Sunday at the home of Dr Hammer. That is right, isn't it? Cmdr King-I think last time I said that I was not 100 per cent sure that it was at his home, but that is my broad recollection. Senator FAULKNER-Yes, which you have given evidence about. The second one was at the Hotel Kurrajong on the Monday following. Cmdr King-Yes. Senator FAULKNER-How many times have you been invited to Dr Hammer's home? Cmdr King-If that meeting was at his home, then I would have been invited twice. Senator FAULKNER-How many meetings have your had with Dr Hammer in the Hotel Kurrajong? Cmdr King-Meetings? We had a social get-together there with Dr Hammer. We started with a simple branch meeting, fairly informal, and then we continued with social activity. One other time. CERTAIN MARITIME INCIDENT CMI 1532 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-So it is pretty unusual? Cmdr King-It is not often that circumstances allowed. Senator FAULKNER-Had you had any discussions about work matters in informal sittings with Dr Hammer, apart from what we have been discussing today? Cmdr King-No. Senator FAULKNER-This is not a critical comment, but I think it is fair to say of your relationship with Dr Hammer, from the evidence you gave earlier, that you seem to be very respectful of him. Would that be fair? I would not go as far as saying differential. Senator BRANDIS-Why are you- Senator FAULKNER-I want to clarify the power relationship and how unusual it is to be invited to his senior officer's home for this sort of discussion or to the pub for this sort of discussion. Senator MASON-Both things that have happened before, Senator Faulkner. Senator FAULKNER-And you have heard the context of them? Senator MASON-Yes. Senator FAULKNER-So they have not happened before. Senator FERGUSON-Yes, they have. He said it was the second time-if he went there, it was the second time. CHAIR-One was a social event; one was to be exposed to what might occur at this inquiry. Senator BRANDIS-What is the big deal? They were mutually involved in these events and they talked about them because they thought they might be required to provide information in some form to us. What is the big deal? Senator FAULKNER-I am not at all surprised you do not consider it a big deal, but I do and I think a lot of other people will. CHAIR-Colleagues, we are debating among ourselves now. We have the privilege of having Commander Stefan King here. Let us ask him questions. You have the call, Senator Faulkner. Senator FAULKNER-I am just asking about the nature of your relationship with Dr Hammer, which I accept is an absolutely professional one, but you certainly look to him as very much a superior officer at this time in the Department of the Prime Minister and Cabinet, don't you? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1533 Cmdr King-I prefer to use the words `senior officer'. I had a great deal of respect for his abilities; he was an exceptionally professional man. Senator FAULKNER-Yes, I have the impression that you had a very respectful relationship with him. Cmdr King-Yes. Senator FAULKNER-And it was obviously difficult for you to express the concerns that you did express about the proposed meeting in his home on the Sunday. It was not easy, was it? Cmdr King-It was an awkward moment. Senator FAULKNER-It was awkward, sure. I understand the power relationship. I know what it means to be stood over like that! Senator MASON-Standing over a commander in the Royal Australian Navy! I can see it now, Senator Faulkner. Senator BRANDIS-I am lost in awe that Senator Faulkner could have said that with a straight face. CHAIR-Order! I am asking the questions. Can I suggest that it may well be that some of you will wish to ask some follow-up questions. Senator BRANDIS-When you are finished. CHAIR-When the examination is finished, you will get a chance to conduct your own examination-and in the usual unfettered way. Commander King, you have given evidence that Dr Hammer was a very busy person and that was why there was a delay in bringing this information back on 10 or 11 October immediately to his attention. That is in your statement; that is uncontroversial. Was it a bit of a surprise that a man this busy would say to you during a working day, `Let's rock on down to the Kurrajong and have a talk about this'? Cmdr King-That is not the context in which it happened, of course. There was a phone call from Ms Sidhu to my office that morning. In the sense that it was at another venue, mild surprise, yes. CHAIR-What did Ms Sidhu say was the purpose of the meeting when she phoned, or did she? Cmdr King-It would have broadly alluded to a chance to get together and simply compare our recollections. CHAIR-Do you know Barbara Belcher, who appears to be well known to everyone on this committee bar me? CERTAIN MARITIME INCIDENT CMI 1534 SENATE-References Thursday, 2 May 2002 Cmdr King-I know her by name and position very briefly. I have never met her. CHAIR-Have you talked to her on the phone? Cmdr King-No. CHAIR-Have you exchanged emails or anything of that nature? Cmdr King-No. CHAIR-Can you shed any light on how it would be that she might be in a position to advise Dr Hammer? Dr Hammer's letter states: I have been advised ... that you have expressed a concern that I may have sought to influence your testimony to the Senate Select Committee ... Cmdr King-Only speculating to the extent that I answered Senator Faulkner that the task force briefed CDF, CDF briefed the minister and the minister's office advised another department. CHAIR-So it went up the chain and down then to Ms Belcher may have been the process? Senator FERGUSON-But you surmise that? Cmdr King-Absolutely. Senator FERGUSON-He is only surmising that. CHAIR-Yes, that is what he said. Senator FERGUSON-He answered the same question asked by Senator Faulkner, and he said that he did not know. CHAIR-I may have been out having a cup of coffee at that time. If I am asking you to cook your cabbages twice, I apologise, Commander King. Cooking them once around here should be sufficient. Apart from this meeting at the Kurrajong-and I do not think we need to go back over that again-had you expressed to anyone else in PM&C any opinions that may have caused people to assume that you were concerned that your evidence had been sought to be influenced? Cmdr King-I think there are some nuances in that question that I need to understand, and I am going to ask you to repeat the question. CHAIR-Let me rid it of the nuances and come straight to the point. I was actually strug- gling to frame the words myself. Did you say anything to anyone else in PM&C or Defence that would have caused them to think you were unhappy about this meeting with Hammer and the possibility of being influenced by it? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1535 Cmdr King-I will answer the question in two parts. No, I did not speak to anybody about these issues broadly within PM&C; and, secondly, I never was of the wholehearted opinion I was unhappy about it. I said that I was mildly surprised that that is how it had come about. CHAIR-I just think getting a letter setting out these things in writing is quite an extraordinary thing. Senator BRANDIS-You could ask Dr Hammer about that. CHAIR-Yes. The witness has said he is surprised that he actually got it. I guess I would be if I were in his position as well. This letter enjoins-rightly, of course-that you should `tell the whole truth in appearing before the Senate committee'. You were never intending to do otherwise, were you, Commander King? Cmdr King-Of course not. Senator BRANDIS-It was never at any stage suggested to you that you should do otherwise, was it? Cmdr King-That is correct. CHAIR-So it does raise the question: why do you need to be advised in writing to do so, doesn't it? That goes to what gave rise to- Senator FERGUSON-What about Dr Hammer? CHAIR-We are going to get to Dr Hammer, but at this rate of progress I am not sure when. I hope it is today. Senator JACINTA COLLINS-Can I just go back to the cabbage for one moment and one component of it that I do not think was covered? CHAIR-You may. Senator JACINTA COLLINS-Commander, can you describe for us the manner in which you expressed concerns to the Defence task force? Cmdr King-I am trying to understand what you are driving at to answer the question. Senator JACINTA COLLINS-You are surmising that this concern could have grown from comments you made to the Defence task force. So I am giving you the opportunity to tell us in your own words what it was that you actually said to the Defence task force. Cmdr King-Right. My preliminary discussions with the task force were that there was a sequence of events that included that contacts with me to meet at certain areas may be construed by others as unusual behaviour. I equally said that I never felt that it was Dr Hammer's intention to influence me but that, as a naval officer appearing before this committee, there may be an CERTAIN MARITIME INCIDENT CMI 1536 SENATE-References Thursday, 2 May 2002 outcome either in media reporting or in any other reporting where that perception may be given to that sequence of events. Senator BRANDIS-In other words, there might be a spin put on it by people like Senator Collins. Senator JACINTA COLLINS-Senator Brandis, I have requested the opportunity to ask this question. Senator BRANDIS-You have interrupted me before. Senator JACINTA COLLINS-Would you please be courteous. Commander, you said to us earlier that you resolved concerns you had about this meeting before you went to it. Cmdr King-In my mind, yes. Senator JACINTA COLLINS-What were those concerns and how did you resolve them in your own mind? Cmdr King-The concerns were, firstly, that it was slightly unusual to have a meeting about a sensitive issue in an area outside a public office, largely for the reason that other people may construe that in a particular way. The second concern was just a sense that you often felt overwhelmed by Dr Hammer's own version of events because he is a very influential man and in an influential position and he is paid to be right and sometimes it is hard to be heard. Senator JACINTA COLLINS-Is this where you resolved not to go and get caught in specifics? Cmdr King-Exactly. Senator JACINTA COLLINS-Before you attended the meeting? Cmdr King-Yes. Senator JACINTA COLLINS-So you had concerns. You felt that you had devised your own strategy on how to manage those concerns and you were then happy to attend the meeting? Cmdr King-Yes. CHAIR-I will not be much longer. Can I just go back to the letter now. The last contact you had with Dr Hammer was, as I understand it, at the Hotel Kurrajong on the 11th March. Cmdr King-Notwithstanding the item of correspondence, yes. CHAIR-Yes, up until the item of correspondence? Cmdr King-Yes. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1537 CHAIR-You are quite right to make that correction. Dr Hammer says in this letter: My recollection is that during the last contact ... That last contact that he would be referring to would be 11 March. Is that what you understand that to mean? Cmdr King-Yes, I do. CHAIR-At that last contact the evidence is that a question was asked, which was the beginning of what you may face when you appear before this committee, but then the discussion ran into the sand at that point and there was no actual trading of information between both of you about what you actually recalled, because you were not in a position to say what you actually recalled. Is that right? Cmdr King-I was not prepared to relate in detail. CHAIR-That is right. You related in the broad? Cmdr King-Yes. CHAIR-Did Dr Hammer relate in detail, or in the broad, to you what his recollection was? Cmdr King-Dr Hammer did not contribute too much of his recollections. He made some broad comments about, `That is not the form of words that I recall.' CHAIR-He did not gainsay what you were saying? Cmdr King-No. CHAIR-He did not put to you an alternative version? Cmdr King-There was a single instance when he said, and I can remember the words fairly clearly, `Another or a better way to describe that might be,' and I think that was for the purposes of definition. CHAIR-In this letter he says: I recall that our respective memories of the October 2001 conversation differed. What was he referring to? Cmdr King-Again, it drills down basically to the form of words that I used to him in that briefing, and it was detail. CHAIR-I see. With respect to the PM&C submission that has never seen the light of day, or the possibility of preparing a submission for this inquiry, did you actually write down anything to contribute to that submission? CERTAIN MARITIME INCIDENT CMI 1538 SENATE-References Thursday, 2 May 2002 Cmdr King-To the extent that I prepared an outlined memory of events and I had started to craft that into a submission, yes. CHAIR-Who did you submit that to? Cmdr King-Nobody. CHAIR-Do you still have it? Cmdr King-It is in draft form on my computer, yes. CHAIR-You have still got it? Cmdr King-It became the basis of my statement today. Senator BRANDIS-Did you prepare that alone-the document you have described? Cmdr King-I prepared it alone, yes, but I did seek some advice. CHAIR-I have concluded my line of questioning at this point. Senator BRANDIS-Mr Chairman, I would like to ask some questions on this topic. If Senator Collins or Senator Faulkner have further questions on this topic, I am happy for them to ask those questions now, but if they want to move on to a different topic- Senator FAULKNER-Senator Brandis, I have indicated to your colleague that I will try to limit my questioning. There is one brief issue that I will try to square away a little later. I am starting to appreciate that events have meant that we have spent longer with this witness. I will curtail my questioning. Senator BRANDIS-I am not asking you to. CHAIR-It is a raffle between Senator Collins and Senator Brandis as to who goes next. Senator BRANDIS-Are your questions on this topic or a different topic? Senator JACINTA COLLINS-My questions are more broadly related to the statement rather than to the letter, if you are saying that is the topic. Senator BRANDIS-The meetings? Senator JACINTA COLLINS-One. Perhaps if I ask that, it will contribute to the total picture. Commander, I have one question in relation to point 16 in your statement, relating to the series of meetings. I am sorry, it does not relate to the meetings; it involves the later discussion but I will ask it since I am halfway there now. Ms Sidhu had elected not to disclose the source of her information without the courtesy of discussing it with yourself first. Did you indicate to her that that care or concern was unnecessary? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1539 Cmdr King-Yes, I did. Senator JACINTA COLLINS-Do you understand whether she then relayed the true source of the information back to the social policy division? Cmdr King-I do not know, but I suspect that she did not. Senator JACINTA COLLINS-Did you have an understanding that she should or would? Cmdr King-No, I simply expressed thank you, but that was not necessary. Senator JACINTA COLLINS-So you did not understand at that point in time that there was some ambiguity about the veracity of the information that you had provided. Cmdr King-I had no doubt about the veracity of that information. Senator JACINTA COLLINS-No, what I am saying to you is that you had not foreseen that the information you had provided could be characterised as tearoom gossip at that point in time. Cmdr King-I am trying to work out whether that is a negative or a positive. Sorry. Senator JACINTA COLLINS-Back when Ms Sidhu said that she had not indicated the source of the information, you were not to know that it was going to be characterised as tearoom gossip at that point. Cmdr King-That is correct. Senator JACINTA COLLINS-You had no concern at that stage that perhaps the full source or context should be indicated so that nobody could try and diminish the veracity of the information. Cmdr King-I agree with that, yes. Senator BRANDIS-I go to these two meetings again, Commander King. Senator Faulkner put it to you that there was, as I understood the burden of his question, a power relationship between you and Ms Sidhu and Dr Hammer so that perhaps you were in a situation in which you were the weaker person in that power relationship. I hope I do not do any injustice to Senator Faulkner's question. What do you say about that? Cmdr King-There is a natural hierarchy, so the statement is true to that extent. Senator BRANDIS-Would you, either as a man or as a professional officer, ever have allowed the existence of such a hierarchy to have affected you in your honest and fearless recollection of the truth? Cmdr King-In respect of the truth, absolutely not. CERTAIN MARITIME INCIDENT CMI 1540 SENATE-References Thursday, 2 May 2002 Senator BRANDIS-And you do not say, do you, that there was any suggestion from either Dr Hammer or Ms Sidhu that they were seeking to overbear you in that way? Cmdr King-I do not say that, no. Senator BRANDIS-You did not get the slightest impression that this was an attempt to suborn you, did you? Cmdr King-Part of my mind thought, `Why is this happening in this forum?' yes. `What is the benefit for this meeting for these other parties?' Of course you question that. Senator BRANDIS-Of course. Cmdr King-I did not feel overtly pressured and I did not sense an overt attempt to influence me. Senator BRANDIS-All right. You have directed our attention to the unusualness of the circumstances, that these were almost quasi social engagements. One was at a private home and one was at a public house. Does it occur to you that the very informality of the situations of the two meetings made them, as it were, a little more egalitarian, a little more relaxed, shall we say, certainly more informal than a more orthodox meeting in office hours? Cmdr King-No, I do not think I would say that. Senator BRANDIS-Were you more or less relaxed than you would have been in office hours because of the venues and situations of the meetings or just the same? Cmdr King-I would have been equally relaxed in the office. Senator BRANDIS-To the extent to which the informality of the meetings might be thought to be relevant, it is hardly likely that a meeting at a pub is going to reinforce a hierarchical relationship, is it? Cmdr King-I do not know that I can answer that question. Senator BRANDIS-In any event, your evidence is, if I can as it were summarise this and draw it all together, that there was no attempt to overbear you? Cmdr King-Correct. Senator BRANDIS-There was no suggestion at any stage that you should do anything other than tell the whole truth to this committee in the event that you were to be called upon to appear before the committee? Cmdr King-I was always given that assurance. Senator BRANDIS-Always. You, of course, have told the whole truth? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1541 Cmdr King-Yes. Senator BRANDIS-At the time these meetings occurred, you and Dr Hammer and Ms Sidhu did have something in common, that is, you had been participants in the earlier conversation in the previous October? Cmdr King-Yes, we were a distinct group in that chain. Senator BRANDIS-You thought, as a result of that, this one thing you had in common, that you may be asked to help this committee by the provision of information in some form? Cmdr King-That is true. There was an aspect that we did not have in common, and that was that I did not know where that information had gone. Senator BRANDIS-To the extent to which you directed your mind to this issue at all on 11 March, and I am not suggesting it should have been at the forefront of your mind-you thought that that provision of information may have been by testimony, by submission or by some other form-that was not something that you were particularly focused on? Cmdr King-That is reasonable. Senator BRANDIS-To the extent to which you thought about it at all, if the provision of your information was in the form of a written submission, that is something that you would have expected to develop with, among others, Dr Hammer and Ms Sidhu, you being the joint participants in the event of the previous October? Cmdr King-Actually, no. I never expected that my contribution would be a part of an International Division contribution. I would be independent of PM&C. Senator BRANDIS-Again, to the extent to which you directed your mind to it at the time, what form did you think any submission of yours might take? Cmdr King-I anticipated that the head of the PM&C task force would call me and seek to interview me to see if there was a material contribution I could make and from there determine whether or not they wanted me to present a statement. Senator BRANDIS-My note about what you said before about the extent to which these meetings were surprising is that you said that it was only because people might construe them in a particular way. Did I understand that piece of evidence correctly-that you, as it were, almost apprehended the spin that was going to be sought to be put on these events as we see this morning? Cmdr King-There were two elements of doubt. That is one of them; the other is the element-and I hope someone will forgive me for saying this-that maybe that was his intention. That was an issue I discounted, but it is an element. Senator BRANDIS-You discounted it because you had no reason to believe that it was? CERTAIN MARITIME INCIDENT CMI 1542 SENATE-References Thursday, 2 May 2002 Cmdr King-And because I believe that he is a very professional officer. Senator BRANDIS-And because there was no suggestion evident to you that it was. Cmdr King-Correct. CHAIR-Were you surprised that on 11 March the cabinet made a decision about this inquiry that departments would not put in submissions? Cmdr King-Can I ask you to clarify whether that is a question of policy. CHAIR-No. Several selected journalists who had it leaked to them reported in their papers on 12 March that on the 11th the cabinet had made a decision that no department was to put in submissions to this inquiry and that members of staff covered by the Members of Parliament (Staff) Act 1984 were not to give evidence. Were you surprised about the proximity of the dates of your discussion with Dr Hammer and that cabinet decision? Cmdr King-That is an interesting question. I do not think I consciously related the two activities other than the fact that they were topical. I was surprised that submissions were not going to be put forward. Senator FAULKNER-My understanding of what you were basically saying to Senator Brandis is that you did think that the meeting was unusual; is that right? Cmdr King-Yes. Senator FAULKNER-But, if an attempt was made to affect your evidence in any way, it was unsuccessful. Senator BRANDIS-He did not say that at all. He never suggested that any attempt was made to affect his evidence in any way. The implication of your question, Senator Faulkner, is quite unfair. Senator FAULKNER-With due respect to you, Senator Brandis, the witness has told us that he thought the meeting was unusual. Senator BRANDIS-Yes. Senator FAULKNER-We know it is unusual. My question is: if any attempt was made to affect Commander King's evidence, it was unsuccessful. I am asking him if that is the case. Senator BRANDIS-That carries with it the implication that there is some evidence to support the proposition that such an attempt may have been made. The evidence is to the contrary, Senator Faulkner. Senator FAULKNER-I think that is unarguable, frankly, Senator. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1543 Senator BRANDIS-The evidence is to the contrary. Senator FAULKNER-No, it is unarguable that an attempt was made to influence the witness. Senator MASON-He just gave evidence to the contrary. Senator FAULKNER-I am asking the witness whether his evidence was influenced. Senator BRANDIS-You can ask him that. Senator FAULKNER-In other words, if an attempt was made, it was unsuccessful, wasn't it? Senator BRANDIS-Come on, Senator Faulkner. You will not fool too many people with that innuendo. The evidence is clear that no attempt was made, and I would be very careful- Senator FAULKNER-Would you mind just letting me ask the questions that I would like to ask. Senator BRANDIS-I have objected to the question- Senator FAULKNER-You cannot object to the question. Senator BRANDIS-and I take a point of order. Senator FAULKNER-That is a preposterous point of order. Senator BRANDIS-The question is, in form and as put, misleading. CHAIR-I did not hear the question; I was engaged offstage, I have to say. Senator BRANDIS-Perhaps I should have ruled it out of order in the few minutes I was the acting chair. Senator FAULKNER-By all means, rule it out of order. You can rule it out of order, and I will just ask another question. CHAIR-On the point of order, can I just say this: if I applied that stringently, a lot fewer questions would be asked than there have been. Senator FAULKNER-Let me make this statement: I am in no doubt, Commander King, that attempts were made to influence your evidence and your testimony. But, having said that, that is my view; I am in no doubt that that was the case, and I do not think any reasonable person would be. Senator BRANDIS-But Commander King is in doubt, and he is the officer! CERTAIN MARITIME INCIDENT CMI 1544 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Even though you thought the meetings were unusual, you told the truth; you stood by your desire to tell the truth. That is right, isn't it? Cmdr King-Yes. Senator FAULKNER-Thank you. I move to the broader issue of the letters being tabled. I am not sure if this was done by you or Dr Hammer but, whoever did it, I appreciate that. CHAIR-It was by me. Senator FAULKNER-There we are; it was by neither of you. I want to clear up one issue in relation to the letter. I do not want to get bogged down; this will be brief. I go to the first paragraph of the letter, which says: I have been advised by the head of Government Division in PM&C that you have expressed a concern that I may have sought to influence your testimony. So Hammer has been advised by the head of Government Division in PM&C that you- Commander King-have expressed a concern. Do you know the background to that statement? In other words, were concerns expressed and, if so, to whom? Cmdr King-One of the reasons I was so surprised to get that letter was of that first statement. I had never expressed a concern in that regard. It had been an element of a conversation with the task force that the nature of activities may be construed by others to have constituted an atmosphere of influence. I was simply forewarning the task force that in any questioning there may be a spin-a media spin or whatever-put on that issue. But it was tangible- Senator FAULKNER-You raised it with the task force or the task force raised it with you? Cmdr King-I raised it with the task force. Senator FAULKNER-You raised it with the task force that that might be possible? Cmdr King-Yes. In the preparation of the statement and in discussing the issues at a number of invitations that had taken place, at a place where people might say, `That is unusual.' Senator BRANDIS-Good on you, Commander King, because you have anticipated Senator Faulkner's game. Senator FAULKNER-You thought it was unusual, and you felt that it was possible, even at this estimates committee or elsewhere-you do not deal with this matter in your opening statement, though, do you? Cmdr King-No. Senator FAULKNER-You do not actually deal with the meetings with Dr Hammer and Ms Sidhu in your opening statement. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1545 Cmdr King-Correct. Senator FAULKNER-Did you seek advice on that from the Defence task force? It is fair enough if you did. Cmdr King-It basically was not an issue until it turned up in that letter. Senator FAULKNER-This statement concentrates on events that occur effectively before 10 November 2001. Cmdr King-Yes. Senator FAULKNER-So that is one of the reasons you were surprised to get the letter. You have told us you received the letter yesterday. It is certainly dated 30 April, so that sounds likely. Let us not talk about content here. Were you surprised to receive the letter? Cmdr King-Yes, I was. Senator FAULKNER-Do you think the letter is couched in heavy terms? Cmdr King-It is certainly in guarded terms, as you might expect. It is probably in heavy terms in the sense that it refers in the opening paragraph to the head of Government Division and, in the last paragraph, to the Secretary of the Department of the Prime Minister and Cabinet. Senator FAULKNER-Let me put this into your language, Commander King. Are you aware that the person who holds the position of head of Government Division in PM&C, in naval equivalent rank, is of two-star rank, that this person is the equivalent of a rear admiral? Cmdr King-The secretary? Senator FAULKNER-No, the head of Government Division in PM&C. Cmdr King-That is a reasonable alignment. Senator FAULKNER-Yes. It uses words in the second paragraph like `never in any way', `simply strongly encourage' and so forth. In fact, it is copied to the Secretary of the Department of the Prime Minister and Cabinet. That person is of a higher rank, effectively, than the Chief of the Defence Force, aren't they? Cmdr King-I would not speculate on those equivalences, but yes, it is extremely senior. Senator FAULKNER-You know that that is the most senior person in the Australian Public Service. Cmdr King-Yes. Senator FAULKNER-So it is pretty heavy, isn't it? CERTAIN MARITIME INCIDENT CMI 1546 SENATE-References Thursday, 2 May 2002 Cmdr King-It is. Senator BRANDIS-And unnecessary, Commander King. Cmdr King-To the extent that I can have an opinion on that, I believe so. Senator FAULKNER-You receive this very heavy letter the day before you give evidence to this inquiry. Isn't that in itself an attempt to influence? Cmdr King-That is possibly for others to determine. Senator FAULKNER-What do you think? Cmdr King-I was uncomfortable receiving the letter. It surprised me; it caught me off guard. Senator FAULKNER-How did you get this, by the way? Did it come through the post? Cmdr King-It was hand-delivered by a courier to a colleague of mine-I was out of the office at the time-in a sealed envelope. Senator FAULKNER-Hand-delivered to your new naval work address. Cmdr King-Yes. Senator BRANDIS-It is also fairly insulting to you, is it not, Commander King, reminding you that you have to tell the whole truth when there has never been any suggestion that you would do otherwise? Cmdr King-I was not insulted by that element. Senator BRANDIS-I would have been if I had received a letter like that, I can tell you! Cmdr King-That had been almost a statement of assurance that I had received consistently that I should feel comfortable to tell the truth. Senator FAULKNER-You do accept that this is a very heavy-handed effort prior to you giving evidence today. Cmdr King-I think it is reasonable of me to feel that way. Senator FAULKNER-But you have assured the committee that, albeit heavy-handed, it has not affected what you have told us today? Cmdr King-Correct. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1547 Senator FAULKNER-I do not want to go back, for another long period of time, to the issues that Senator Cook and Senator Brandis have talked about in relation to the recollections and so forth. What I might consider doing, Chair, in relation to that is placing one or two questions on notice in clear and precise terms to Commander King so he can reflect on those in the fullness of time. That might actually save the committee some time and save all of us a little agony in the circumstance. CHAIR-I am a vote for saving time and being more efficient at any point, so if you would choose to do that, Senator. Senator FAULKNER-Yes. Did you treat this as a personal letter, by the way? Cmdr King-I did because it is not on letterhead. Senator FAULKNER-But you would not have a personal letter copied to the Secretary of the Department of the Prime Minister and Cabinet, would you? Cmdr King-Not normally, no. Senator FAULKNER-Have you ever copied any of your personal letters to the Secretary of the Department of the Prime Minister and Cabinet? Cmdr King-Almost never. Senator FAULKNER-That is something we have in common. I assume you would not copy a letter to the CDF either. So did you treat it as a personal letter or not? Cmdr King-To the extent that it was obviously meant for me and it conveyed some issues that were obviously very close to Dr Hammer's heart. Senator FAULKNER-So to some extent you define it as a personal letter? You mean it is hard to define in reality, do you? Cmdr King-I have barely had a day to get over the surprise of receiving it and its contents-well, particularly the first paragraph. Senator FAULKNER-In relation to differences of recollection, I may follow that through a little later with a question on notice. It might be better if I have a look at the Hansard record and consider that as- Senator BRANDIS-Mr Chair, we have no further questions of the witness. Senator JACINTA COLLINS-I just have one. CHAIR-You just have one. We are overdue for lunch, but please ask your one question and then we can excuse the witness, which I am sure will be a relief to him. We can then move on to the next witness and that will be a relief to that witness. So please get on to it. CERTAIN MARITIME INCIDENT CMI 1548 SENATE-References Thursday, 2 May 2002 Senator JACINTA COLLINS-This was my other question from earlier, which was more general. It relates to point 9 in your opening statement, where you explain: My logic for this was that in my three months experience in that department it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and by other Ministers were consistent. Was this a new experience for you-this care and attention to consistency as opposed, for instance, to accuracy? Cmdr King-I do not intend to speak to any detail about the logic of the PM&C because I was a guest in that department-I had been there three months-but it did not seem to be a new initiative. It was a general matter of business that there was coordination between the departments and that that was something that was preserved. Senator JACINTA COLLINS-But within PM&C you note particular attention is paid to consistency? Cmdr King-Yes. Senator JACINTA COLLINS-And you noted that from your experience within Defence? Cmdr King-Within Defence you do not have much observation of the operation of other departments, so I could not comment. Senator JACINTA COLLINS-Is it fair to say that within Defence the focus is more on care and attention to accuracy? Cmdr King-It is fair to say that there is a great deal of care and devotion given to accuracy. Senator FAULKNER-Just so we are clear, how do you apply that to the question and answer approach at the meetings we have been discussing and the meeting on 11 March? Cmdr King-I would not attempt to relate the two. I am not sure how that will be helpful. Senator FAULKNER-In an attempt to get consistency, that is what it is all about, isn't it? Cmdr King-The principles are the same, yes. Senator FAULKNER-Yes, the principle is the same: an attempt to hammer out a consistent position. Senator BRANDIS-Oh, come on, Senator Faulkner! Senator FAULKNER-An attempt to hammer out a consistent position where recollections are different. Senator BRANDIS-The answers are the evidence, not the questions- CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1549 Senator FAULKNER-Exactly. Senator BRANDIS-and the questions, larded with innuendoes unsupported by the evidence, do you no credit. Senator FAULKNER-This was an attempt to hammer out a consistent position where recollections were different and, of course, in itself that was an attempt to influence this witness's testimony. Senator BRANDIS-Come on, Mr Chair- questions, not speeches. CHAIR-This may be a debate you would choose to continue over lunch- Senator FAULKNER-Or not. CHAIR-or not. But I do understand that questions are concluded. Before the break, I would not mind very briefly conferring with the committee about the rest of the day, because it seems to me reasonable that we are not likely to complete our witness list and some people have travelled here. So please hold back, colleagues. Commander King, thank you very much for your attendance today. It went on a little longer than I think we anticipated, or indeed you may have done, but thank you for the way in which you have conducted yourself. We appreciate that and you are now excused. Cmdr King-Thank you. Proceedings suspended from 12.35 p.m. to 1.37 p.m. CERTAIN MARITIME INCIDENT CMI 1550 SENATE-References Thursday, 2 May 2002 SIDHU, Ms Harinder, Senior Adviser, Defence, Intelligence and Security Branch, Interna- tional Division, Department of the Prime Minister and Cabinet CHAIR-Welcome. Do you have any opening remarks to make? Ms Sidhu-Yes, I do have. CHAIR-If they are written it would help us, rather than having to dwell on the Hansard for a written record, to have a copy of those. Ms Sidhu-They consist largely of speaking notes over which I have scribbled. CHAIR-I understand. Please proceed. Ms Sidhu-I am pleased to be here to assist the committee in its inquiry. I would like to make a short statement just to clarify my role and recollection of the events surrounding the SIEV4 incident. I was informed by Commander Stefan King, who was then a Defence secondee to International Division and a member of my section, 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 SIEV4 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. I do not recall the date I received this information. I am aware of Commander Chatterton's and Commander King's advice to this committee that these conversations took place on 11 October 2001. While I do not dispute this date, I have no independent recollection of this date. It was usual practice for Commander King and I to debrief our branch head, Dr Hammer, on key issues raised at the Op Slipper meetings, and we did so on this date. Near the conclusion of that meeting, Commander King repeated his story to Dr Hammer but in a more abbreviated form. I do not have a clear recollection of Dr Hammer's response, except that I left the meeting with a sense that I need not concern myself with this matter further. I thought no further about this incident until the evening of 7 November 2001 when Catherine Wildermuth from Social Policy Division sought my assistance to check the content of some reports surrounding the SIEV4 incident. I advised her that I did not possess any hard copy reports but that I did have access to some DFAT cabled reports electronically. I invited her to my office to read these. While we were searching through the reports on my computer, I repeated to her Commander King's remark. She expressed surprise at the story and, indeed, I expressed equal surprise that she had not already encountered the rumour. I acknowledge that there was a delay between Commander King's remarks to me and my mentioning it to Social Policy Division. I did not pass the story on immediately for a few CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1551 reasons. Firstly, I understood it to be uncorroborated hearsay, received second-hand. Secondly, I was not by that stage involved in the work of the People Smuggling Task Force and, as a consequence, had no context in which to place the information or to assess its significance. Finally, I was aware, nevertheless, of the chain of reporting within Defence, and particularly with respect to reporting information outside the Department of Defence. I was also aware that Strategic Command was represented on the task force. If this information was true, I understood that it would be appropriate for Defence to report to the task force at a senior level through Strategic Command. I would be happy to take any questions the committee may have on this matter. CHAIR-I think the courtesy is first extended to Senator Brandis. Senator BRANDIS-I do not really have any questions just for the moment. I might have some follow-up questions, depending on what other senators have to say, but I have none just for the minute. Senator FAULKNER-What is your understanding of the role of the Defence liaison officer in PM&C? Ms Sidhu-It has been a long tradition for the Defence Branch in PM&C to have a military secondee. My understanding is that it is an agreement between the two departments to provide some benefit to Defence to allow the military an insight into the workings of government at a high level and across government. From the PM&C perspective, the military secondee carries out many of the tasks that would normally be assigned to somebody in the Defence Branch but also provides valuable insight, support and, frankly, a reality check on a lot of the policy work that we do. It is an arrangement that is of mutual benefit to both departments. Senator FAULKNER-We have just heard from Commander King. I do not know whether you heard his evidence. He obviously fulfilled his role through some of the period in which this committee is particularly interested. Do you feel that he worked effectively with PM&C as a Defence liaison officer? Ms Sidhu-Very. Senator FAULKNER-Was he a good one? Ms Sidhu-Very good, yes. Senator FAULKNER-Can you list for the committee the actual contacts you had with Commander King about the `children overboard' incident, in the broad? I do mean by this the incident or the photographs. I ask you to treat that question with a broad perspective from the point of view of the so-called certain maritime incident, if you would not mind. Ms Sidhu-You are referring to it in general rather than to the specific discussion? Senator FAULKNER-Yes. Could you just detail for us the number of contacts you had with him and when they occurred. CERTAIN MARITIME INCIDENT CMI 1552 SENATE-References Thursday, 2 May 2002 Ms Sidhu-I have heard Commander King's evidence, and I concur with his description of the contacts that we had-that is, his first contact with me following his meeting and describing what he had heard about the photographs. I was present at the meeting with Dr Hammer later that afternoon. As far as I can recall, we did not speak of it again until the day after I spoke to Catherine Wildermuth when, since it became evident to me that he may be questioned, I in- formed Commander King as a matter of courtesy that I had mentioned this to Social Policy Di- vision. We did not speak of it again until, I think, I had contact with him around, maybe, Senate estimates in February. I had been advised to pull my recollections together, and it was suggested to me that it might not be a bad idea if I made the same suggestion to Commander King. For the sake of my own memory and for his memory, I contacted him on that date, and after that fol- lowed the meeting of 11 March. Senator FAULKNER-Let us go back to 11 October 2001, if we could. Do you recall what Commander King told you in that meeting on that morning about the photographs and the SIEV4 incident? Ms Sidhu-I recall quite clearly. He told me that the photographs were not what they appeared to be. He may have made mention of captions, and I seem to recall he may have mentioned something relating to captions being mixed up or lost-I cannot recall exactly what. He said to me that he heard about this in the margins of the Strategic Command meeting. I am fairly clear he told me that he had overheard talk to this effect. Senator FAULKNER-That of course is somewhat in conflict with what both Commander Chatterton and Commander King have told this committee. Most of what you say is very much in accordance with what they have said except, if you like, the suggestion that this matter was something that Commander King had overhead. Commander Chatterton tells us that he involves Commander King as a conduit of information and Commander King tells us, I think you appreciate, that he treats it seriously and formally. Ms Sidhu-I do recall Commander King being quite perturbed by the story. I did press him to tell me who had been saying this and he seemed reluctant to give out the name. I respected that. Commander King was the fourth military secondee with whom I have worked in PM&C. It is not uncommon for them to, in casual conversation, pick up a rumour or a story and to repeat it on return from a meeting, so I understood that he may be reluctant to mention who had said this. Senator FAULKNER-You do not have any recollection of him mentioning Commander Chatterton's name to you? Ms Sidhu-He never mentioned Commander Chatterton's name. The first I heard of Commander Chatterton's name was when he appeared before this committee. Senator FAULKNER-What was Commander King's tone when he was conveying this information to you on the morning of the 11th? You said concerned, I think. Ms Sidhu-Yes, he appeared- Senator FAULKNER-Or perturbed. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1553 Ms Sidhu-Yes, perturbed, a bit worried, concerned. Clearly, what he had heard had disturbed him. Senator FAULKNER-This goes to the extent of him meeting with you in your office about it? Ms Sidhu-It was usual. The Op Slipper briefings, as you can imagine, went into a great deal of operational detail. He would usually come out of those meetings when he returned to PM&C and discuss all of the detail and brief me on exactly everything that was said. We would agree on what the pertinent elements were. He would then brief Dr Hammer later on the key elements or the key outcomes of the meeting rather than burden Dr Hammer with all the details. Senator FAULKNER-Sure. Do you have file notes or a record of what was discussed at that meeting? Ms Sidhu-No. As you can imagine things were very fast moving. My role in that meeting was to act as a filter for information to work out what was pertinent and what was not and to advise Commander King on which parts of the information he should pass on to Dr Hammer. Senator FAULKNER-This meeting was around 10 minutes, I think we were told. Would that be about right? I do not expect you to know precisely when it started or ended, but around 10 minutes would be fair enough to say? Ms Sidhu-Yes. Senator FAULKNER-It appears, from what we know currently, that the conclusion of that meeting is that you both briefed Dr Hammer at the earliest possible opportunity. Was that the outcome? Ms Sidhu-Yes. Senator FAULKNER-In fact, you tried to do so immediately? Ms Sidhu-Yes, that is right. Senator FAULKNER-You could not do that? Ms Sidhu-No. Senator FAULKNER-Why did you want to brief him immediately? Ms Sidhu-Even if things are rumour or unsubstantiated, sometimes they form smoke for which there is fire. I was surprised at the story, frankly, and I thought Dr Hammer might have some context or additional information or a view on it. I did not quite know how to react to it or how to judge the information. So it was partly to inform Dr Hammer that there was this story about and partly also to seek a view from him on how to proceed and what to do, if anything. CERTAIN MARITIME INCIDENT CMI 1554 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Did you make the decision to talk further to Dr Hammer or did you both make that decision, or would it be the standard way you would approach such an issue? Ms Sidhu-It was inevitable in any case that Commander King would brief Dr Hammer at some point on the outcome of the Slipper meeting. I cannot recall whether I personally made that decision or whether it came out of a discussion between the two of us. Senator FAULKNER-When you had your 10-minute meeting-that is just you and Commander King-did he also provide an Operation Slipper briefing to you at that point? Ms Sidhu-Yes, he did. Senator FAULKNER-So there are two elements to the briefing, effectively? Ms Sidhu-Yes; and the greater part of it, frankly, was the Operation Slipper briefing. Senator FAULKNER-There is the Operation Slipper element of it and then there is the photographs relating to the `children overboard' incident-those two elements? Ms Sidhu-That is right. Senator FAULKNER-Why the urgency? Why did you try to contact Dr Hammer immediately? Was it because of the `children overboard' element or the Operation Slipper element? Ms Sidhu-It was because of the `children overboard' element. We try, as far as possible, to operate on a `no surprises' basis. Frankly, this story was a surprise, and I thought Dr Hammer would appreciate being informed of it as early as possible. Senator FAULKNER-So it was significant enough information for you to try to contact him immediately? Ms Sidhu-Yes. Senator FAULKNER-That is fair enough. You considered it urgent? Ms Sidhu-I would not say urgent, as such. Because things move so fast in PM&C, we do try to bring closure as quickly as we can to an issue. I did not feel a particular sense or urgency about it, but I felt it was something that I had better communicate now rather than later. In the event, it did not- Senator FAULKNER-To try to do it immediately seems pretty urgent to me, I have to say. Ms Sidhu-It is not unusual. There is a lot of to and fro between Dr Hammer's office and my office on issues as they arise. It is not unusual for me when I receive information, however trivial, to go over immediately to Dr Hammer's office and inform him of it. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1555 Senator FAULKNER-Is it unusual for you to meet on such a matter with the Defence Liaison Officer in Dr Hammer's office? Ms Sidhu-No. Senator FAULKNER-Anyway, that happened a little later in the afternoon, didn't it? Ms Sidhu-Yes, it did. Senator FAULKNER-The actual meeting occurred in Dr Hammer's office. Are you able to share with us what occurred at that particular meeting? In this instance, maybe you could begin by confirming or not confirming the account that we have heard of it so far, which is that on the record from Commander King. Ms Sidhu-I do not dispute Commander King's account of that meeting. As I said at the beginning, Commander King briefed Dr Hammer on the Op Slipper meeting. At the conclusion of that briefing, he mentioned to Dr Hammer again the story about the photographs but in a more abbreviated form. I remember that clearly; he was very succinct. Frankly, I cannot clearly remember Dr Hammer's response. We left the meeting straight after that. Senator FAULKNER-So you do not have a recollection about what Dr Hammer may have said about the element of the briefing that goes to the `children overboard' issue? Ms Sidhu-No, I am not clear, in fact, whether he said anything at all. I do not know. I did leave the meeting with a sense of closure, that I need not worry about it, that it was finished with. Senator FAULKNER-Did you have any sense of whether this was new information as far as Dr Hammer was concerned or that he might have heard it before? Ms Sidhu-It appeared to me as if it was new information to him. Senator FAULKNER-It was definitely new information for you when you first heard it that morning, wasn't it? Ms Sidhu-Most definitely. Senator FAULKNER-There does seem to be a substantial inconsistency here between the version that Commander King has provided to the committee and the version that you are providing to the committee on the nature of the original communication to him from Commander Chatterton. I do not know how they can necessarily be reconciled. In my own mind I cannot reconcile them, I have to be frank with you. I do not know whether you think that is a fair enough conclusion for me to draw, but Commander King said to us that he believed this was a direct transmission of credible information from a credible source and you put it more as unsubstantiated rumour overheard between Defence officers. There is quite a substantial difference there, isn't there? CERTAIN MARITIME INCIDENT CMI 1556 SENATE-References Thursday, 2 May 2002 Ms Sidhu-Yes, that is true; I acknowledge that. I can only explain that, as I said in my opening statement, there is a chain of command within Defence. There are rules within Defence that I am aware of about communicating important and sensitive information outside the De- partment of Defence. In my experience, this is always communicated at a senior level, and to the most senior possible PM&C officer-for example, someone from Dr Hammer's level up. I was also not told the name, rank or source of the information, so I had no way of assessing whether this had come from a senior officer in the form of a formal communication or other- wise. But my clear recollection is that I was told that it was overheard in the margins of the meeting. It may be a false recollection on my part, but it is how I clearly recollect being told that. Senator FAULKNER-Was this a usual or unusual way for Commander King, as the Defence Liaison Officer, to act as the conduit for information or some information between Defence and PM&C? Would you be able to characterise it in those terms? Ms Sidhu-In this instance, it would be unusual. It would be usual for Commander King to be the conduit for information that is formally conveyed in a meeting at which he is representing PM&C. I would not think it was usual for information of this sensitivity to be conveyed in what appears to me to be an informal sense, outside a formal meeting, to Commander King. Senator FAULKNER-Do you think Commander King acted appropriately or inappropriately in conveying this information to PM&C in the way he did? Ms Sidhu-I believe he acted appropriately. He understood that the interests of PM&C in a topic were often different from the interests of any other government department. We come at things from a different angle. So he would usually come with information and seek advice on how best to handle that information. Senator FAULKNER-After your meeting with Dr Hammer during the afternoon of 11 October-this is before the November incident; I am quarantining that, if you like-on that day or during the days after the 11 October incident, did you pass this on to anyone else? Ms Sidhu-No. Senator FAULKNER-Did you take any further action about that information at all? Ms Sidhu-No. Senator JACINTA COLLINS-Except with Ms Wildermuth? Ms Sidhu-Yes. That is a separate- Senator FAULKNER-That is later, in November. Did you treat the information that Com- mander King provided to you as serious? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1557 Ms Sidhu-I thought that if it was true, it would be very serious, yes. But I had no way of making that judgment. Senator FAULKNER-You did not take any contemporaneous notes around 11 October about any of these matters? Ms Sidhu-No, largely because this issue fell outside the province of my responsibilities as well. Senator FAULKNER-Did you have an expectation about what Dr Hammer might do in receipt of this information? Ms Sidhu-Only that he might provide some guidance about what to do or take over the handling of the issue if he judged it to be of sufficient importance. Senator FAULKNER-Do you mean guidance to you or to Commander King in this instance? Ms Sidhu-Either. Senator FAULKNER-Or take over the matter. But you can't recall, I think you said to us, what, if any, action he indicated he proposed to take? Ms Sidhu-My recollection is that he did not propose anything concrete at that meeting. Senator FAULKNER-So what you are saying to us is that you understood the gravity of what was being said, but on the surface it does not appear as if there was much follow through. Ms Sidhu-I said that I appreciated its importance if it were true. Where I sit I hear many rumours and I often have no way of judging whether they are true or not. Some of them are potentially serious, yes, and we find we have to be cautious-I certainly do. In PM&C there is a rule about which we chase up and how we handle them. Clearly, you cannot set hares running every time you hear a story. I thought that, if it were true, it would be significant and important. Senator FAULKNER-But you did not hear about this issue again until 7 November? Ms Sidhu-I never heard the story again repeated from within Defence. I never heard the story coming again from another source in Defence. Senator FAULKNER-Did you hear it coming from any other source? Ms Sidhu-There was speculation in the newspapers, I recall, around 7 or 8 November about the veracity of those photographs. Senator FAULKNER-But did you hear from any government source-and I am using the terminology `government' in the broad? Is this matter discussed with you or drawn to your at- tention in any way after your meeting with Dr Hammer on 11 November, before the sequence of CERTAIN MARITIME INCIDENT CMI 1558 SENATE-References Thursday, 2 May 2002 events that we know something about on 7 November? Was this discussed with you or drawn to your attention in any way at all in that period? Ms Sidhu-Absolutely not. Senator FAULKNER-I missed a very small amount of your opening address, which I apologise for. If I am asking a question about an issue that you have canvassed, no doubt you will tell me so. But I do apologise in advance in case I do that. As I understand the sequence of events on 7 November, Ms Wildermuth from the Social Policy Division of PM&C spoke to you about a request from Mr Jordana. Is that right? Ms Sidhu-I was not aware where the request came from. She called me and asked if I had any reports or sit reps relating to the SIEV4 incident. I believe I checked our files and it was quite clear that we held no paper at all on that incident. I cannot recall if she asked me whether I suggested I might trawl the electronic database. I do recall Ms Wildermuth read over the phone to me a reference number. When I put that reference number, which I now understand to be the reference number for NORCOM, into the search function a number of cables came up. It was at that point that I invited Ms Wildermuth to view these and to see if any of them constituted the report that she was looking for. Senator FAULKNER-Did she actually specify to you what report she was looking for? Ms Sidhu-No. She did mention when she was in my office that she was looking for a report regarding people having been thrown overboard, but she did not mention which specific report she was after. Senator FAULKNER-So there were a number of reports that had been received by PM&C about SIEV4 that you were able to locate by putting in this reference number? Ms Sidhu-PM&C-and only International Division, by the way-has limited access to Defence and Foreign Affairs cables on the Department of Foreign Affairs and Trade cable system. So I was able to access those. Senator FAULKNER-How many did you find in relation to SIEV4? Ms Sidhu-I do not know. I pulled up a number of cables, I think probably 10 or 11, not all related to SIEV4. These were the cables that corresponded to the reference number I was given. Senator FAULKNER-Yes, because the reference number is NORCOM. Ms Sidhu-Exactly. Senator FAULKNER-This means they come through NORCOM? Ms Sidhu-I presume so. I think NORCOM is the originator. Senator FAULKNER-Or NORCOM is an addressee or something like that. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1559 Ms Sidhu-Yes, they may be an addressee. If it finds that reference in the text anywhere it will pull that cable up. Senator FAULKNER-Was a record taken of those cables at the time? Ms Sidhu-No. Senator FAULKNER-So you show these- Ms Sidhu-Electronically on the screen. Senator FAULKNER-electronically on a screen to Ms Wildermuth from the Social Policy Division? Senator FAULKNER-Yes, that is right. Senator FAULKNER-Do any of them particularly spark her interest? Ms Sidhu-It seemed to me that none of them fitted what she was looking for. Senator FAULKNER-Because she was looking for a reference that children had been thrown overboard? Ms Sidhu-I do not think it was children specifically. I think it was people. Senator FAULKNER-She was looking for a reference that people had been thrown overboard? Ms Sidhu-Yes. Senator FAULKNER-And none of the cables that had come to PM&C via NORCOM showed that people had been thrown overboard? Ms Sidhu-No, but she understood that would not constitute the entirety of the cables that were out of NORCOM or out of Defence on the topic. We do not get access to every single cable. Senator FAULKNER-No, but would it constitute the entirety of the cable traffic to PM&C? Ms Sidhu-Yes. Senator FAULKNER-That is all you could possibly deal with, isn't it? You can only deal with the PM&C cables? Ms Sidhu-Exactly. CERTAIN MARITIME INCIDENT CMI 1560 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-No-one could expect you to be dealing with other agencies' cables. So you have now been able to indicate to the committee that there was no cable traffic via NORCOM to PM&C that indicated that people had been thrown overboard during this period? Ms Sidhu-Yes. Senator FAULKNER-That is helpful in itself and I appreciate the information. When did you find out that Ms Wildermuth from the Social Policy Division had actually made this request to you on 7 November as a result of a request to her from Mr Jordana? Ms Sidhu-It was at Senate estimates, when I was over here- Senator FAULKNER-Good old Senate estimates! But you certainly did not have any knowledge of that until then? Ms Sidhu-No. Senator FAULKNER-That would be partly because Ms Wildermuth and you were working in different divisions of the department-would that be right? Ms Sidhu-And on different floors, yes. Senator FAULKNER-Were any of these cables or signals, or whatever they may have been, from NORCOM printed out or was it just a search on the screen and left at that because it did not fit what Ms Wildermuth was looking for? Ms Sidhu-We printed two. Senator FAULKNER-Can you identify which two they were? Ms Sidhu-Not offhand. I recall one was a report dated 7 October and another was a summary digest or something dated 8 October. Senator FAULKNER-I think I know the documents to which you are referring, but would take on notice for me, Ms Sidhu, the detail of those documents so we can cross-reference that with the material that we have had provided to the committee? Would you mind taking that on notice so we do not get the committee bogged down on that at this stage? Ms Sidhu-Okay. Senator FAULKNER-After you had that contact and provided that documentation, did Ms Wildermuth take away the hard copy of those two cables? Ms Sidhu-Yes. It is not usual practice, I have to say. Because it was getting late in the evening and she appeared to want to think about them, I asked her to keep them only overnight and return them to me the next morning, which she did. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1561 Senator FAULKNER-So it was not usual practice to give cables like that to other officers in the department? Ms Sidhu-No. Senator FAULKNER-Why not-because of the security? Ms Sidhu-Security, yes. It is just that we are not meant to print cables and let them out of our possession. Senator FAULKNER-So why did you break your usual practice on this occasion? Ms Sidhu-I was about to leave for the evening, and Ms Wildermuth needed more time to consult with her superiors or colleagues about whether those cables were of any use. I was aware that Ms Wildermuth was appropriately cleared and would look after the documents and secure them properly. She gave me a firm undertaking that she would return them the next morning which, as I say, she did. Senator FAULKNER-Do you know what happened in the meantime to those particular cables? Ms Sidhu-No. Senator FAULKNER-Did she say what the need for that urgency was? Ms Sidhu-If she did, I don't recall it. Senator FAULKNER-Was the case made for you to break what your normal procedure would be, which is not to provide such cables to a more junior officer than you in the department? Ms Sidhu-Ms Wildermuth and I are the same level. Senator FAULKNER-I am sorry, an officer of equal status. I apologise. Ms Sidhu-I understood that she may have needed them for a briefing. Often we are asked to do briefings at short notice and late in the evening. I was trying to assist her. Senator FAULKNER-I am not doubting for one moment or questioning your motivations in this, Ms Sidhu. I am just trying to get to the bottom of it. Do you know who was being briefed and by whom? Ms Sidhu-No. Senator FAULKNER-Just a briefing? Ms Sidhu-Yes. I assumed it was of some importance; she seemed particularly anxious. CERTAIN MARITIME INCIDENT CMI 1562 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Did she mention any names? Ms Sidhu-No. She mentioned Ms Bryant's name, but I understood Ms Bryant was not the person being briefed. Senator FAULKNER-And you did not ask her who was being briefed? Ms Sidhu-No. Senator FAULKNER-You did not ask her what they were being briefed about? Ms Sidhu-No. Senator FAULKNER-You just gave her the cables? Ms Sidhu-Yes, that is right. Senator FAULKNER-Do you regret that? Ms Sidhu-No. Senator FAULKNER-Anyway, what happens then? Ms Sidhu-She returned me the cables the next morning. I heard nothing further until close to Christmas. Jenny Bryant called me seeking to clarify the date of my conversation with Catherine Wildermuth. Senator FAULKNER-And do you know why Ms Bryant rang you about that? Ms Sidhu-I understood it was in the context of her investigations into the incident, but I did not know the precise context. Senator FAULKNER-One thing that interests me about this is: do you actually head up the International Division or does Dr Hammer do that? It is not entirely clear to me. Ms Sidhu-Mr Potts heads the International Division. Senator FAULKNER-Mr Potts heads it up. Ms Bryant said to us that she tried to follow up with your division the status of the Chatterton-King information recently. Are you aware of this? Ms Sidhu-I am not sure exactly. She was trying to follow up exactly what? Senator FAULKNER-The suggestion that, according to the division, this had originally been a rumour or tearoom gossip but that the division no longer believed that. Ms Sidhu-Yes, I am aware of that. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1563 Senator FAULKNER-I do not think I have a Hansard reference. I do not want to do- Ms Sidhu-Yes, I recall that in the Hansard. Senator FAULKNER-I can probably turn it up in a moment, anyway. There was a change of view in the International Division. Is that a fair summation of it? Ms Sidhu-International Division now accepts the statements by Commander King and Commander Chatterton that there was a direct contact. That said, that is not how I recall it being conveyed to me. The first I had an inkling of, or an understanding, that there had been a direct, as opposed to an indirect, contact or indirect information, was when Commander King said as much when we had coffee at the Kurrajong on the 11th . Senator FAULKNER-Yes, but you know it is Ms Bryant who sends Ms Wildermuth to you on that evening of 7 November? Ms Sidhu-Yes. Senator FAULKNER-That is clear, isn't it? Ms Sidhu-Yes, that is clear. Senator FAULKNER-That was made clear to you by Ms Wildermuth at the time? Ms Sidhu-Yes. Senator FAULKNER-But it is not just a matter, is it, of Ms Wildermuth being provided with a couple of cables. You actually had a broader conversation with her, didn't you, about the status of the `children overboard' claims? Ms Sidhu-When Ms Wildermuth came up, I was not entirely clear what she was looking for. As we looked through the cables-I stayed in the room, obviously, while she looked through the cables-she remarked to me that none of them appeared to mention people having been thrown overboard. This triggered my memory of the story and triggered my remark to her as well that I had heard these rumours to the effect that the photographs may not in fact be accurate and they cast doubt on the story. Senator FAULKNER-So you told her about Commander King's information that he had passed to you and Dr Hammer nearly a month earlier? Ms Sidhu-Yes. Senator FAULKNER-Could you outline for the benefit of the committee the broad terms in which you communicated that to Ms Wildermuth? Ms Sidhu-It 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?' CERTAIN MARITIME INCIDENT CMI 1564 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-Is that all you say? Ms Sidhu-That is all I say. Senator FAULKNER-You do say they are only rumours? Ms Sidhu-Yes. Senator FAULKNER-You are clear on that point? Ms Sidhu-Absolutely clear. Senator FAULKNER-Do you say how you are aware of that or do you just say there are rumours circulating in Defence? Ms Sidhu-I recall starting it off, `Haven't you heard there are rumours?' I believe she may have asked me where I had heard it from and I think I used the words that one of my colleagues had overheard this at a meeting in Defence. Senator FAULKNER-Was she surprised? Ms Sidhu-Very. Senator FAULKNER-Would you say quite genuinely? Ms Sidhu-Genuinely surprised. Senator FAULKNER-People can pick these sorts of things up. Ms Sidhu-Yes. Senator FAULKNER-You don't think she had heard such rumours before? Ms Sidhu-It was quite clear to me that she had not. Senator FAULKNER-Fair enough. You say, `Haven't you heard there are rumours circulating in Defence that the photographs don't represent children who'd been thrown overboard?' Ms Sidhu-Yes, or words to that effect. Senator FAULKNER-Words to that effect, but along those lines? Ms Sidhu-Yes. Senator FAULKNER-Is that a fair representation of it? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1565 Ms Sidhu-Yes, it is fair. Senator FAULKNER-She is very surprised, you have told us? Ms Sidhu-Yes. Senator FAULKNER-And I think she reports that back to Ms Bryant, does she not? You may not know that at the time. Ms Sidhu-I do not know that at the time, but she does, clearly. Senator FAULKNER-It is clear from other material that is in the public arena. Ms Sidhu-Exactly. Senator FAULKNER-But are you aware of what happened as a result of your communication to Ms Wildermuth around the time? Do you have any information you can offer to the committee about those circumstances as you understood them then as opposed to understanding them now, which of course, as with us all, is with the benefit of an awful lot of material that has been made public in the meantime? Ms Sidhu-Beyond the conversation between Ms Wildermuth and me, I am not aware of what happened to what I had told her. I had no idea that anyone had any particular interest in it until Ms Bryant called me in December to try to verify the date of our conversation. Senator FAULKNER-I just want to be clear on this. If these were passed to Ms Wildermuth as just rumours, she seems to have treated them very seriously in telling Ms Bryant, Ms Bryant immediately ringing Ms Halton at home, and Ms Halton writing a letter that was tabled in parliament telling us how shocked she was by this, and immediately ringing the Prime Minister's office and Mr Max Moore-Wilton-and so it goes on. Are you sure that accurately reflects the nature of your conversation with Ms Wildermuth, given the reaction to it? I just want to be clear on this because I think we do know that, subsequently, a considerable chain of events was put in place as a result of your conversation in front of the computer screen. I just want to be assured that this is not just a matter of retailing rumours. Ms Sidhu-I cannot comment on the actions or the reactions of people beyond Ms Wilder- muth and what she did after that. I am clear about what I told her. Senator FAULKNER-The reason I ask you this is that that pattern of events after your discussion with Ms Wildermuth again does not seem to fit information that is best characterised as trivial gossip or rumour-which of course is the same situation that we have in relation to the other end of the chain where Chatterton and King are saying that that is definitely not the nature of the information. So that is why I am asking you if you are really clear on that because, as you know, Chatterton and King say that it was definitely not rumour or gossip. Your discussion with Ms Wildermuth appears to have dominoed through on the night, and you would not think that that would occur if this was merely information that was characterised as pretty trivial stuff, tea room gossip. CERTAIN MARITIME INCIDENT CMI 1566 SENATE-References Thursday, 2 May 2002 Ms Sidhu-I cannot explain it myself either. I have no answer. Senator FAULKNER-Do you understand why I am asking that? Ms Sidhu-I do understand. I understand your concern, but it is the truth and I do not have anything else to add to that. Senator FAULKNER-You noted first-hand that Ms Wildermuth was shocked. Ms Sidhu-Yes. Senator FAULKNER-We know, because she has written a letter about it, that Ms Halton was shocked. It does, I have to say to you, stand to reason that there must be some semblance of detail. It does sound as if someone has upgraded the thing from a bit of gossip to a full briefing at some point along the line. You cannot help us with that? Ms Sidhu-No, I am afraid not. Senator FAULKNER-I have been able to turn up in the meantime the Hansard reference- I hope you do not mind but I would like to take a moment to read it to you if I could because I would like you to comment on it. This is from page 1290 of this committee's Hansard from 18 April; it is an answer from Ms Bryant to a question that I asked. I should put it in context for you. This is in context of me asking Ms Bryant about satisfying herself whether or not it was tearoom gossip that we are talking about. Ms Bryant said: I did make some further inquiries about that yesterday- which in this case would be 17 April 2002. She went on- obviously in anticipation of this discussion. I now understand, and again it is the advice to me, that it was not tearoom gossip at all ... I saw Commander Chatterton's evidence and, in the light of that obviously, yesterday I made some in- quiries. I was informed that the International Division now understood that it had not been tearoom gossip, that Com- mander King had advised the International Division officers that it was rumours or tearoom gossip and that that had been their understanding but they had a view that, in the light of what Commander Chatterton said, it had a much more formal nature. What I was wanting to ask you before is: can you support that evidence that Ms Bryant gave that, as this thing evolves publicly and more information is extracted about it, there is a bit of a reassessment in the International Division? You may not be aware of this or not, but I wondered if you could help us if you are. Ms Sidhu-I cannot speak for International Division as a whole. I certainly have not discussed this within the International Division. All I can say is that, having had a conversation with Commander King and having heard Commander Chatterton's and Commander King's evidence, I accept now that there may have been a formal approach. But, equally, my clear recollection at the time is that it was conveyed to me as an informal overhearing of another conversation in the margins of the meeting. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1567 Senator FAULKNER-But have you changed your mind about whether it was a status that you have described in your evidence today? Have you changed your mind about the original status of this communication from King? Ms Sidhu-I have changed my mind about how it was conveyed to Commander King in the first instance. I have not changed my mind about my recollection of what Commander King told me. Senator JACINTA COLLINS-Do you recall asking Commander King for the source of his information? Ms Sidhu-I do recall asking him who was saying this. I had asked that question to try to gauge whether it was somebody who had heard things second- or third-hand or whether it may have been said by a senior officer who might be closer to the facts. Senator JACINTA COLLINS-And what do you recall, being as specific as you can, was his response? Ms Sidhu-I think he may have said something to the effect of, `I would rather not say.' That is when he reinforced again that this was something that had been picked up in the margins of the meeting. Senator JACINTA COLLINS-Is it possible that you assumed from your past experience that you mentioned earlier that he may not want to say rather than that he expressly indicated such? Ms Sidhu-No, I seem to recall quite clearly that he did not wish to name names. Senator JACINTA COLLINS-He indicated that to you quite clearly? Ms Sidhu-Yes. Senator FAULKNER-The 7th November is the day we are talking about when you have your discussion around the computer screen with Ms Wildermuth. This is also the day when in the morning the Australian newspaper-having got this thing so horribly wrong earlier in the election campaign, I quickly add-had a very prominent article casting serious doubt about the photographs. Had you seen that article? Ms Sidhu-I am sure I would have. Senator FAULKNER-I would imagine that it would have been in the clips of the International Division, wouldn't it? Ms Sidhu-Yes. CERTAIN MARITIME INCIDENT CMI 1568 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-That sort of thing would hit you in the eye through the newspaper clips. So, surely, you would have seen that before you had your conservation with Ms Wildermuth? Ms Sidhu-Yes, most probably. Senator FAULKNER-I suspect she would have too. Ms Sidhu-I am sure she would have. Senator FAULKNER-I know you cannot answer for her. Ms Sidhu-No, I cannot. Senator FAULKNER-But that is a pretty reasonable conclusion to draw. Surely in that context you were aware of the significance of-I will use the terminology that you are comfortable with-the so-called rumours about the photos? Surely that makes this far more a front of mind issue for you? Ms Sidhu-It may well have done on that day; I cannot specifically recall whether it was the newspaper article or my discussion with Ms Wildermuth, but I do recall a point in my discussion with Ms Wildermuth where the story triggered itself again in my brain and I spoke to her of it. Senator FAULKNER-So the publication of that article in the Australian newspaper did not trigger anything in your mind? Ms Sidhu-It may well have, but it may not have been as front of mind as when she was in my office. Senator FAULKNER-Looking for evidence to try to prove that people had been thrown overboard. Ms Sidhu-As I said to you before, she was looking for a specific report. Senator FAULKNER-Yes, desperately scrabbling around to try to find a report that showed that people had been thrown overboard-which she could not find. Of course she could not find it, because it did not exist. I am not critical of you or her about that. In that regard, you were properly fulfilling your responsibilities. But that is the truth of it, is it not? Ms Sidhu-That is your view. Senator FAULKNER-This is a front-page story in Australia's national daily newspaper. I find it incredible that this would only have been triggered in your mind that evening when Ms Wildermuth comes up from Social Policy Division in a desperate search to try to find some evidence to try to prove the unprovable. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1569 Ms Sidhu-As I said earlier, I did not dispute that I might have thought of the story again when I read the newspaper article, but I clarified that I specifically thought of it when Ms Wildermuth was in my office. Senator FAULKNER-After 7 November, did you have any other contact on this issue before what you have described to us in February? Ms Sidhu-Only the phone call from Ms Bryant in December. Senator FAULKNER-And that was about her report, was it not? This was when she was doing her report, was it not? Ms Sidhu-I understood it was in the context of her report. Senator FAULKNER-Did she say whether that matter would be included in the report? Ms Sidhu-No. It was a very short conversation. She just asked me if I could remember the date of my conversation with Ms Wildermuth. Senator FAULKNER-Were you able to help her? Ms Sidhu-No, sadly, on the diaries and information I had available to me at that time, I was unable to clarify the date. Senator FAULKNER-But we know it was 7 November. Did you talk to Dr Hammer about that Australian article that got such prominence? Ms Sidhu-No. Senator FAULKNER-Did you talk to Dr Hammer about the contact you had had with Ms Wildermuth on 7 November? Ms Sidhu-No. Senator FAULKNER-In the period immediately after 7 November up until February, you only had contact in the broad sense on this issue with Ms Bryant in the way you have described for the preparation of her report? Ms Sidhu-That is right. Senator FAULKNER-That really then takes us, as far as your involvement in this whole thing is concerned, right through to February, does it not? Ms Sidhu-Yes, it does. CERTAIN MARITIME INCIDENT CMI 1570 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-And in February there was some activity as far as your are concerned, or International Division was concerned, because of preparation for the Senate estimates committee? Ms Sidhu-Yes. Senator FAULKNER-Could you explain that to us? Ms Sidhu-I am not clear on the wider activity. I am just trying to get the sequence straight. I believe Ms Bryant called and asked me to go to her office. When I did, she suggested that I might find it useful to write down a sequence of events, as I recalled it, to help my memory should I be asked questions about the story that I had heard and my conversation with Ms Wildermuth. She specifically asked me to try to recall dates: the date Commander King spoke to me, and when I spoke to Ms Wildermuth. That was the extent of that conversation. Senator JACINTA COLLINS-When did that conversation occur? Ms Sidhu-I believe it would have been perhaps the second week in February. Senator JACINTA COLLINS-Before or after the PM&C estimates? Senator FAULKNER-It would be before. Ms Sidhu-I think it would be before. Senator FAULKNER-I think they were about the 20th. This was done in the context of your PM&C officers preparing for the estimates round, wasn't it? Ms Sidhu-Yes, that is right. Senator FAULKNER-You would consider that pretty normal, wouldn't you? Ms Sidhu-I did not think there was anything unusual about it, no. Senator FAULKNER-So what happened on that occasion was that Ms Bryant asked you to think carefully about a sequence of events and some of this background, in case someone such as me was unkind enough to ask you about them? Ms Sidhu-I was certainly given no impression that I would be asked directly about it. It was more that, if people within PM&C needed to go into that issue, it would be useful for me to have clear in my head what had happened and what the sequence of events was. Senator FAULKNER-That is right. It could have been direct evidence that you might have given-or a more senior officer; Ms Bryant, who had prepared the report; Mr Moore-Wilton; Mr Henderson or anyone, couldn't it? Ms Sidhu-Yes. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1571 Senator FAULKNER-Did Ms Bryant indicate whether that was an initiative she was taking or whether she had been asked to take that initiative by someone more senior in the department? Ms Sidhu-She did not indicate either. I assumed she was just trying to be thorough. Senator FAULKNER-I appreciate you may not know precisely, but did that occur, let us say, before the Senate estimates committee, some time around the early to middle part of February? Ms Sidhu-That would be right, yes. Senator FAULKNER-Did you have any other contact in February on this particular matter? Ms Sidhu-I do not recall any specific contacts. There may have been one after Ms Halton's letter was tabled. I understand I was named in that letter. Senator FAULKNER-You were, yes. Ms Sidhu-I may have had another contact with Ms Bryant, but I do not think it was for any specific reason. I do not recall. Senator FAULKNER-If your name is mentioned in a letter that is tabled in the parliament, wouldn't you be likely to remember whether someone rings you about it from the department? I thought you would be likely to remember that. Ms Sidhu-No. Unless there was a specific event attached to it, I did not. So, clearly, there was not a specific request or event. Senator FAULKNER-You think you were contacted by Ms Bryant? Ms Sidhu-Yes. Senator FAULKNER-To check? Ms Sidhu-I recall a subsequent contact from Ms Bryant-but I cannot recall exactly when-when we spoke in general terms, and she asked whether I had compiled a chronology, or memory-jogger; I responded that I had. Senator FAULKNER-This was for the purposes of the estimates committee? Ms Sidhu-I am not quite sure what the purpose was at that point. It may well have been for the estimates committee. Senator FAULKNER-Is Ms Bryant the only person from PM&C who spoke to you about this issue: the children overboard issue? CERTAIN MARITIME INCIDENT CMI 1572 SENATE-References Thursday, 2 May 2002 Ms Sidhu-There was a point at which almost everybody mentioned it in some way, but not in an official way. I believe Dr Hammer, at some point, forewarned me that Ms Halton's letter was about to be tabled or that it had been written-I cannot remember-and that my name was in it. Senator FAULKNER-Do you remember when you were warned about it? Ms Sidhu-I believe it was on a weekend. Senator FAULKNER-The letter was dated on a weekend. Ms Sidhu-We were both at work on the Sunday. Senator FAULKNER-Can you remember when on the weekend? Ms Sidhu-I cannot remember. It was in the afternoon at some point. Senator FAULKNER-Saturday or Sunday? Ms Sidhu-Probably a Sunday. Senator FAULKNER-So you got a call from Dr Hammer telling you that that was the situation? Ms Sidhu-No. I had gone into the office to catch up on some work, he happened to be there and he mentioned to me that Alan Henderson had spoken to him. He conveyed Mr Henderson's comments that my name might be mentioned. Senator FAULKNER-So he contacted you about the Halton letter. Did you speak to any- one else about the Halton letter? Ms Sidhu-No. Senator FAULKNER-Did he tell you why Ms Halton was mentioning your name? Ms Sidhu-I understood that I would be mentioned as the source of social policy group's information about this incident. Senator FAULKNER-Did you express a view to him? Ms Sidhu-Not any particular view, no. I was a bit concerned about it, obviously. Senator FAULKNER-Did he say to you what the purpose of Ms Halton's letter was? Ms Sidhu-No, although it was not hard for me to divine by that stage. I understood there was a fair bit of media speculation about Ms Halton's role in these issues. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1573 Senator FAULKNER-But he did not tell you the purpose of the letter and you did not ask? Ms Sidhu-No, I did not ask and he did not really explain it in any great detail. Senator FAULKNER-Did he explain it in any detail? Ms Sidhu-I cannot recall what words he might have used. I understood that Ms Halton had written a letter to clarify her role in the face of the media speculation about her role in this issue and that I was being mentioned in that context. Senator FAULKNER-Were you told that it was going to be tabled in the House of Representatives by the Prime Minister? Ms Sidhu-No, not at that point, not on the Sunday. Senator FAULKNER-When were you told? Ms Sidhu-To be absolutely clear, I do not think I was told in advance. I think the first I saw or heard of it was when I was watching question time and the Prime Minister read out the letter. Senator FAULKNER-Had anyone given you a copy of the letter beforehand? Ms Sidhu-I had seen a copy of the letter, but nobody had given me a copy. Senator FAULKNER-Who showed you a copy of the letter? Ms Sidhu-Mr Potts, the International Division head. Senator FAULKNER-When did he do that? Ms Sidhu-It may have been on the day it was tabled. I cannot be categorical, I am sorry. Senator FAULKNER-But it was before it was tabled by the Prime Minister? Ms Sidhu-Yes. Senator FAULKNER-So the contents of the letter were not a surprise to you? Ms Sidhu-No. Senator FAULKNER-Did any officer of Prime Minister and Cabinet or anyone else ask you whether you had a view about the contents of the letter, given that your name was mentioned, or whether or not you could confirm the accuracy as it applied to you? Ms Sidhu-No. Senator FAULKNER-Did you see a draft of the letter? CERTAIN MARITIME INCIDENT CMI 1574 SENATE-References Thursday, 2 May 2002 Ms Sidhu-No. Senator FAULKNER-You were shown a signed copy of the letter? Ms Sidhu-Yes, that is right. Senator FAULKNER-And that happened on the Monday morning? Ms Sidhu-I would assume so. As I said, I cannot be categorical. Senator FAULKNER-What is Mr Potts's status in the department? Is he a deputy secretary? Ms Sidhu-He is a division head but, like a deputy secretary, he reports directly to the secretary. He has the equivalent status of a deputy secretary. Senator FAULKNER-So you are told by two more senior officials in the Department of the Prime Minister and Cabinet that you are to be mentioned in a letter from Ms Halton to Mr Moore-Wilton about an extremely sensitive issue, and you just accept that, nod your head, ask no questions and move on. Ms Sidhu-As I understood it, it was something that had happened and was beyond any power of mine to change if I wanted to. I was concerned, naturally, that my name would appear in this context and in this way, but- Senator FAULKNER-Did you express that concern to anyone? Ms Sidhu-I may have, in terms of my reaction to reading the letter or finding out about it, yes, but I cannot recall in what terms. Senator FAULKNER-You may have-to whom? Ms Sidhu-Particularly to Dr Hammer, because that was the first time I heard of it. Senator FAULKNER-So you expressed concerns to Dr Hammer on the Sunday afternoon. Ms Sidhu-Yes. Senator FAULKNER-Can you share with us what your concerns were? Ms Sidhu-Simply that my name would appear in relation to such a sensitive and relatively high profile issue. I was not, frankly, entirely comfortable about that. It is not something that has happened to me before. Senator FAULKNER-And to Mr Potts? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1575 Ms Sidhu-I said very little. Mr Potts showed me the letter as a courtesy. He felt I should see it, and I thanked him for the courtesy. Having read it, I passed the letter back to him. Senator FAULKNER-Without comment? Ms Sidhu-Beyond thanking him for the courtesy, no. Senator FAULKNER-But this all happened before question time. Ms Sidhu-Yes, as I recall it. Senator FAULKNER-So question time was not the first time you knew about the letter. Ms Sidhu-No, as I said earlier, it was the first time I was aware that the Prime Minister would table the letter, but I was aware- Senator FAULKNER-But neither Mr Potts nor Dr Hammer told you that the Prime Minister was going to table that letter in question time. Ms Sidhu-No, not as far as I recall. Senator FAULKNER-What did you think its purpose was? Ms Sidhu-These are obviously decisions that are made way above my head. I do not know. Senator FAULKNER-That is true. Ms Sidhu-I assumed this was highly political and highly- Senator FAULKNER-Well, it would be if Mr Moore-Wilton was involved-very political. You are quite right about that. Ms Sidhu-Yes, so I left it in that realm. Senator FAULKNER-You had contact with Mr Potts and Dr Hammer. Any other officials of Prime Minister and Cabinet you had contact with in this formal or semiformal way, apart from genuine gossip? You made the point, and I accept it, that a lot of people were chatting about it. I understand that. I am sure you understand the distinction I am drawing with you. I wonder if, understanding that distinction, you can say if any other officials of the Department of Prime Minister and Cabinet had contact with you in that period. Ms Sidhu-No. Senator FAULKNER-This is in the lead-up to your and Dr Hammer's meeting with Commander King. Ms Sidhu-The answer is no. CERTAIN MARITIME INCIDENT CMI 1576 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-You had no contact with Mr Moore-Wilton? Ms Sidhu-Absolutely none. Senator FAULKNER-No contact with Ms Halton? Ms Sidhu-No. Senator FAULKNER-No further contact with Ms Bryant? Ms Sidhu-Aside from work related contact, no. Senator FAULKNER-I am drawing a clear distinction between that and the matters that we are speaking about. You do not have any contact with prime ministerial office staff in your role? Ms Sidhu-I do from time to time if, say, Dr Hammer is not available, but not on this topic, no. Senator FAULKNER-So you have never had any contact with PMO staff on matters relating to the `children overboard' issue? Ms Sidhu-Not at all. Senator FAULKNER-Apart from those contacts with PM&C staff and the Defence staff and, obviously, Commander King that you have mentioned, up until your meeting with Commander King and Dr Hammer on 11 March there were no other contacts that you could draw to the attention of the committee? Ms Sidhu-No, there were not. Senator FAULKNER-Whose idea was it to talk to Commander King around March of this year about his possible evidence to this committee? Ms Sidhu-My recollection is that it was towards the end of Friday, 8 March. Dr Hammer may have come over to my office, but, anyway, we had a conversation where he asked if I might contact Commander King so that we might get together to refresh our collective memories of this incident. I gained the impression, and I cannot be sure, that this had been suggested to Dr Hammer by someone else. I just gained the impression that it was not entirely his idea. So I cannot say whose idea was. Senator FAULKNER-It was someone else's idea? Ms Sidhu-It may well have been. I just had this impression. Senator FAULKNER-You did not hear a name mentioned? Ms Sidhu-No. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1577 Senator FAULKNER-Just a bit of blame shifting? Ms Sidhu-No, it is not blame shifting. It is just how I perceived Dr Hammer. It was almost as if: `It has been suggested to me that it would be a good idea if we got together to refresh our memories'; it was in that vein. He knew that I was in intermittent contact with Commander King for work related things that were holding over, and he asked if I might contact Commander King and see if it might be possible for us to meet perhaps on the weekend. Senator FAULKNER-Anyway, it was on the Friday-what was that-8 March? Ms Sidhu-That is right. Senator FAULKNER-This was just a conversation you had with Dr Hammer, was it? Ms Sidhu-Yes, he sought me out. I cannot recall whether he came to my office or we happened to bump into each other in the office somewhere. Senator FAULKNER-He sought you out and he obviously found you? Ms Sidhu-Yes. Senator FAULKNER-He suggested that you three get together? Ms Sidhu-To refresh our memories. We had not spoken of the incident. Frankly, the three of us had not ever spoken about it since the actual meeting we had, so he felt it might be useful if we got together to talk about it briefly. Senator FAULKNER-What did you think? Ms Sidhu-I thought that would be a good idea. Frankly, I had entirely forgotten that we had ever had a meeting in Dr Hammer's office. It was something that I remembered later on when the issue came up again. I thought it would be a useful idea and, as you know, my recollection of the meeting in Dr Hammer's office is not the strongest recollection I have of the incident. Senator FAULKNER-Of course you were aware at this stage, weren't you, that there was a different view about the nature of the communications? Ms Sidhu-No. Senator FAULKNER-You were not aware? Ms Sidhu-No. At that stage I remained convinced that it was an indirect informal rumour. Senator FAULKNER-When did you first become aware that Commander King had a distinctly different impression from the one that you had about the nature of those communications? CERTAIN MARITIME INCIDENT CMI 1578 SENATE-References Thursday, 2 May 2002 Ms Sidhu-When we had coffee on 11 March. Senator FAULKNER-You did not know about it beforehand? Ms Sidhu-Not at all, no. Senator FAULKNER-So you thought that was a reasonable thing to do, did you? Ms Sidhu-I welcomed it, in fact, because I was not entirely clear on my own recollections. I thought perhaps some memories might be clearer if we talked them through. Yes, I did welcome it. I did not see anything- Senator FAULKNER-First of all, there was a proposal to have a meeting on Sunday the 10th. Is that right? Ms Sidhu-Yes. Senator FAULKNER-You can clear up the proposed venue of that. Was that Dr Hammer's home? Ms Sidhu-Yes. I asked Dr Hammer whether we should come into the office, and his re- sponse was to the effect that he already saw altogether too much of the office and he wanted to avoid coming in on the weekend if he could. He thought a better venue might be his home. Senator FAULKNER-I see. You did not give that a second thought? Ms Sidhu-No. Senator JACINTA COLLINS-Ms Sidhu, why were you suggesting a Sunday? Ms Sidhu-I do not know. That was Dr Hammer's suggestion; I do not know why. It may have had to do with his schedule; I do not know. Senator FAULKNER-Who contacted Commander King about the meeting? Ms Sidhu-I did. Senator FAULKNER-So you tracked him down. How did you track him down? Ms Sidhu-I called his mobile on the Friday, but I believe it was switched off or out of range. I finally got through to his voice mail, I believe, on the Saturday and left a message asking him to call me. He returned my call on the Sunday. Senator FAULKNER-The day of the proposed meeting? Ms Sidhu-Yes, that is right. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1579 Senator FAULKNER-What did he say to you and what did you say to him? Ms Sidhu-I believe I conveyed to him exactly that Dr Hammer had asked if he would be available for us to get together on Sunday at Dr Hammer's home to refresh our memories about the incident in question. I asked if he might be available on Sunday; I believe it was about three or four in the afternoon. He replied that he had been at a Navy celebration the night before, that he was a little bit under the weather and that he would prefer not to come on the Sunday. I accepted that. He said that he was in Sydney as well, and I did not feel it was of such urgency that he should hike back to Canberra for a meeting such as this. I told him it was fine and I would contact him during the week. Senator FAULKNER-During the week? Ms Sidhu-Yes. Senator FAULKNER-The meeting happened the next day, didn't it? Ms Sidhu-I phoned Dr Hammer up-I believe on the Sunday-and informed him that Commander King would not be available. He asked me to see whether we could get together quickly on the Monday. Senator FAULKNER-Why the urgency? Ms Sidhu-I do not know. I believe Senate estimates were imminent. Senator FAULKNER-No, Senate estimates were over, I think, at that point. Ms Sidhu-There may have been a suggestion that there needed to be a submission on which I might need to clarify thoughts-I cannot recall exactly. Senator FAULKNER-You did not ask him about the urgency? Ms Sidhu-No. I do not recall a particular urgency. It is partly to do with work style, I think. Senator FAULKNER-The next day is pretty urgent, making it at his home on the weekend. After all, we have heard how Dr Hammer was always in the office on the weekend. I am surprised he did not want to have the meeting there. But it was a special occasion and he thought he would have it at his home on the weekend, or the next day because King was in Sydney. That sounds pretty urgent to me. Ms Sidhu-It may appear that way. I did not feel any particular sense of urgency about it. Senator FAULKNER-Of course, parliament sat on Monday, 11th. That may have been a consideration. Was that mentioned to you? Ms Sidhu-No. I believe it had to do with the PM&C submission. CERTAIN MARITIME INCIDENT CMI 1580 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-That is the PM&C submission that did not ever happen. Ms Sidhu-Yes. CHAIR-Are you aware that that was the day federal cabinet made the decision relating to this inquiry? Ms Sidhu-At the time I was making the phone calls I was not aware that federal cabinet was even considering it. I heard about the decision only, I believe, the next day, once it was made. Frankly, I learned of it only through reading a report in the newspaper. CHAIR-That is basically how we heard about it, as well. Senator FAULKNER-Did you get the feeling that Commander King was uneasy about this? Ms Sidhu-I did not get a feeling that he was uneasy about coming to talk to us, but I have to say that, in the course of our discussion, I got a distinct feeling that he was uneasy or uncomfortable. Senator FAULKNER-Did this discussion take place on the Sunday or the Monday? Ms Sidhu-The Monday-after we had coffee. Senator FAULKNER-You mean the actual- Ms Sidhu-The actual meeting. Senator FAULKNER-The actual-face to face, if you like. Ms Sidhu-That is right. Senator FAULKNER-He did not express any- Ms Sidhu-Before that he did not express any reservations, no. Senator FAULKNER-And willingly agreed to come to the meeting on Monday? Ms Sidhu-Yes. Senator FAULKNER-Why was the venue of the Kurrajong Hotel decided upon? You see too much of the office, really? Ms Sidhu-There is that, and also Dr Hammer's office is located in a part of the division where there is a lot of through traffic and phone calls. Senator FAULKNER-People would see you. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1581 Ms Sidhu-No, I do not think that was a problem. In fact, I escorted Commander King back into the building afterwards in full view of everybody. Senator JACINTA COLLINS-But you cannot do rehearsals there. Senator FAULKNER-You would not want to rehearse evidence before a Senate committee! It is better to do it at the Kurrajong Hotel than in the offices of the Department of the Prime Minister and Cabinet. God knows what happens in the offices of the Department of the Prime Minister and Cabinet. The mind boggles, frankly. Ms Sidhu-Frankly, I would rather do it in an office behind closed doors than out in a public- Senator BRANDIS-Of course, the first place you would want to go if you were doing something surreptitious would be the Kurrajong Hotel. Ms Sidhu-Exactly. We were surrounded by people who were also having coffee and who might have overheard our conversation. Senator BRANDIS-Other people who were rehearsing their evidence for other Senate committees, if the conspiracy theory on my right is to be believed. CHAIR-Where do you go to do something surreptitious? Senator BRANDIS-I do not do anything surreptitious. Senator JACINTA COLLINS-In a public space where you are not easily identifiable. CHAIR-Is that right? I am innocent in these things. Senator FAULKNER-Anyway, you were in a very public place in a coffee shop at the Kurrajong Hotel and everyone could see you. When you were having the coffee did you get the feeling that Commander King was uneasy? Ms Sidhu-Yes. Senator FAULKNER-And why did you have that feeling? Ms Sidhu-I believe I had a feeling that he was reluctant to share in any detail his recollections, particularly of our meeting between the three of us and of the specifics with respect to the issue. Senator FAULKNER-Did you get the feeling he thought he was being stitched up in some way? Ms Sidhu-No, I do not think so. CERTAIN MARITIME INCIDENT CMI 1582 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-But why was he uneasy about it? Did he express it in a way that you can reflect at this meeting? Ms Sidhu-I do recall him saying at one stage, and this may have been in response to the hypothetical question that Dr Hammer put, that he did not feel he should get into that or answer the question. Senator FAULKNER-You did not think it unusual for you to have a meeting at the Kurrajong Hotel about Commander King's evidence to this committee? You thought that was standard operating procedure? Senator BRANDIS-I raise a point of order, Mr Chairman. That is an unfair question. The evidence is not that the meeting was about Commander King's evidence. CHAIR-What was the question you were asking, Senator Faulkner? Senator FAULKNER-I was asking whether Ms Sidhu herself thought it was unusual to have such a meeting in such a place about Commander King's evidence. Senator BRANDIS-My point of order is that it is an unfair question because once again it is based on a false rendering of the evidence. It is not the evidence of this witness that this conversation or the purpose of this meeting was to discuss Commander King's evidence. There is an implication in the question that is quite unsupported by anything Ms Sidhu has said. CHAIR-I think I have ruled earlier that, if I were to rule out questions on the basis that some of the content of the question was unsupported by the evidence, the amount of time we would have spent at this inquiry would have been about half. Senator BRANDIS-That is probably right, Mr Chair, but, with respect, there are some issues of fairness to witnesses. Not every question that might be imprecise is going to be equally unfair to a witness. I have been very economical in taking objections. I dare say I have probably in the last 11 days objected to a couple of dozen questions of all the questions, only on the grounds of unfairness to a witness. Senator FAULKNER-And I dare say I have not objected to any questions, even though if I was going to use the same basis as Senator Brandis does I probably could have objected to about 700. Anyway, if it is so offensive-I understand why Senator Brandis does not want the witness to answer the question. I understand why you do not want the question asked or answered. Let us move on. Senator BRANDIS-The TV news deadline has passed, Senator Faulkner. You can turn away from your theatrics. CHAIR-I am glad everyone has got that off their chest. They may feel a bit easier. Let us try and move the evidence along as quickly as we can because we would like to get some more in if we can. Now that you have drawn attention to it, it is doubly highlighted. Ms Sidhu is a senior officer and we all understand questions in the English language. This is not a court of CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1583 law; it is an inquiry, and I think the approach I would prefer to take is that people can answer and fend for themselves. Senator FAULKNER-Did anyone talk to you about your evidence, Ms Sidhu? Ms Sidhu-My evidence today? Senator FAULKNER-Yes. Ms Sidhu-No. Senator FAULKNER-You have not discussed it with anyone? Ms Sidhu-No, except where I have tried to refresh my memory on various bits and pieces-in the checking process, I suppose you would call it. Senator FAULKNER-You have not talked to Dr Hammer about it? Ms Sidhu-No. Senator FAULKNER-So when the meeting on Monday, 11 March went next to nowhere, what happened then? Ms Sidhu-Nothing. As far as we were concerned, we had got together, shared what we- certainly from my perspective I had shared what I recalled and- Senator FAULKNER-Did you receive a letter from Dr Hammer before you gave evidence today? Ms Sidhu-No. Senator FAULKNER-Were you aware that Dr Hammer had sent his letter to Commander King? Ms Sidhu-Just before coming here, I was made aware of a letter, yes. Senator FAULKNER-Who told you that? Ms Sidhu-Mr Potts from the International Division. Senator FAULKNER-He had a copy, too? Ms Sidhu-I don't think he had a copy, no. Senator FAULKNER-What did he say to you? CERTAIN MARITIME INCIDENT CMI 1584 SENATE-References Thursday, 2 May 2002 Ms Sidhu-It was very brief. I was literally out the door. He said that there appeared to have been a suggestion that Commander King was not comfortable-I can't recall the exact phrase- and that Dr Hammer had sent Commander King a letter reassuring him of his good faith. I don't recall- Senator FAULKNER-It was described as reassurance, was it, by Mr Potts? Ms Sidhu-He didn't use those words, no. Senator FAULKNER-Did Mr Potts express a view as to whether he thought it was a good idea for Dr Hammer to have sent that letter? Ms Sidhu-No, he did not express a view. Senator FAULKNER-It is a pity. It would be very interesting to know what his view was. Ms Sidhu-It was strictly factual. He just said that he thought I should know- Senator FAULKNER-Mr Potts was strictly factual; is that what you mean? Ms Sidhu-Yes. Senator FAULKNER-You know that Commander King was not comfortable at that discussion on Monday the 11th? Ms Sidhu-I felt that he was not comfortable. Senator FAULKNER-As a result of you feeling that, did you try to change the subject, pull up stumps, have a quick cup of coffee and leave? What was your human reaction to that, given the circumstances? Ms Sidhu-I have to say that my sense of his discomfort is confined to a particular point in time in our discussion. My recollection is that the discussion moved on after that. Senator FAULKNER-What was the particular point in time, as you describe it, that he was concerned about? Ms Sidhu-It appears to relate to the time when Dr Hammer put a hypothetical question to him as if he were in the committee. He appeared very uncomfortable with being put on the spot, I suppose, in that way. Senator FAULKNER-You could understand that, couldn't you? Ms Sidhu-Yes, absolutely. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1585 Senator BRANDIS-Ms Sidhu, are we to understand your evidence that the discomfort of which you speak was a momentary thing in response to one particular episode in the course of the conversation? Ms Sidhu-That is my understanding. That was certainly my feeling-that that was the point at which he was uncomfortable, yes. Senator FAULKNER-Did you feel uncomfortable about what Dr Hammer was doing, too? You said you understood why King felt uncomfortable; did you feel uncomfortable? Ms Sidhu-I did, in a sense. I believe I know Commander King and Dr Hammer quite well, and they are very different people. Commander King is a fairly sensitive person and I felt for him, I guess, yes. Senator FAULKNER-I assume we will have to read into that that Dr Hammer is like me and he is not very sensitive at all. Ms Sidhu-No, I didn't say that at all. Senator FAULKNER-No, I did; I said that. Senator JACINTA COLLINS-What was the question? Ms Sidhu-I can't recall. It had to do with the three-way meeting-`What do you remember,' or something like that. `What do you remember about the meeting?' `What did you say at the meeting?' It was something like that. I can't recall exactly, but it was words to that effect. Senator FAULKNER-What happened then? Did Dr Hammer stop asking questions? Ms Sidhu-Yes, he did. Senator FAULKNER-Was there an embarrassed silence? Ms Sidhu-No, we moved on to something else, I understand. Senator FAULKNER-What was the `something else'? You stopped talking about his evidence, basically? Ms Sidhu-Yes. It was not about Commander King's evidence but it was about the topic generally. Senator FAULKNER-The attempt to talk to King about his evidence failed? Ms Sidhu-We did not have that meeting specifically to talk to Commander King- CERTAIN MARITIME INCIDENT CMI 1586 SENATE-References Thursday, 2 May 2002 Senator FAULKNER-You did not, Ms Sidhu. What do you think Dr Hammer's motivations were? Ms Sidhu-I believe Dr Hammer was genuinely trying to refresh his memory about the meeting that we had. Senator JACINTA COLLINS-Did you express your recollection as to the status of the report? Ms Sidhu-Yes I did. And, as I said to you, that was the point at which Commander King said, `No, it was told to me directly.' I expressed surprise at this. Senator JACINTA COLLINS-Why do you think it might be that you can recall that that significant discrepancy occurred in that three-way meeting and yet today, when we asked Commander Stefan King what were the issues that you agreed to disagree on, he could not? Maybe the heavy letter he received yesterday? Ms Sidhu-I cannot surmise what Commander King was thinking. I think it was of signifi- cance to me because, for me, it was a central element of my recollection of the event, but I can- not begin to explain what Commander King thought. Senator JACINTA COLLINS-How did you describe your recollection of the event at that meeting? Ms Sidhu-We were going around the table just describing what we remembered. I ran through what I recalled, which was that Commander King had told me that he had overheard a conversation to this effect. Commander King corrected me, or so he thought, and said, `No, I had not overheard the story, I had heard it directly.' Even at that point he did not name Commander Chatterton, and that came as a surprise to me. Senator JACINTA COLLINS-Was it as specific as you saying, `You never told me the source,' and him saying, `Yes I did'? Ms Sidhu-No. It was specific: I said words to the effect of, `You never told me this was a direct conversation.' Senator JACINTA COLLINS-And him saying? Ms Sidhu-I think he said words to the effect of, `I was trying to protect my source.' Senator JACINTA COLLINS-You think he said that? Ms Sidhu-Yes. Senator JACINTA COLLINS-None of which, unfortunately, Commander King was able to recall earlier. One thing he did recall though, and I am interested in your response to this, was CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1587 the impression that you were holding your cards back. Would you care to comment on his comments to that effect earlier today? Ms Sidhu-I was actually surprised at that comment. I do not think I was holding my cards back. I am a reasonably frank and up-front person. But when there are numbers of people, more than one-to-one, I do tend to observe conversations before I participate in them. So he may have gained that impression. I certainly recall that I did not say very much at that meeting. Senator JACINTA COLLINS-But would you describe the difference between your recollections and those of Commander King as being significant differences of substance? Ms Sidhu-Yes. Senator JACINTA COLLINS-And yet, in response to Senator Brandis earlier today, Commander King felt it was more differences in detail not of substance. Ms Sidhu-That may well be the way he characterises it. Senator JACINTA COLLINS-And that he felt you were holding your cards back. Ms Sidhu-Again, that is his impression. Senator BRANDIS-In summary form, Ms Sidhu, what do you think were the differences in your recollection and the recollection you heard in Commander King's evidence? Ms Sidhu-It principally concerns the message that was conveyed from Commander King to me about the nature or the source of the information in question. I think that is quite clear to everybody. He believes that he explained that it was a direct, formal approach, but that is not my recollection. Senator BRANDIS-Is that the only difference of substance? Ms Sidhu-From my perspective, yes: that is the only difference of substance. Senator JACINTA COLLINS-And that difference was not discussed in any detail in that discussion? Ms Sidhu-The 11 March discussion? Senator JACINTA COLLINS-Yes. Ms Sidhu-No, aside from the exchange that I have just described. Senator JACINTA COLLINS-So you had one brief exchange where you indicated the recollection that it was an indirect report? Ms Sidhu-Yes. CERTAIN MARITIME INCIDENT CMI 1588 SENATE-References Thursday, 2 May 2002 Senator JACINTA COLLINS-And Commander King indicated that it was a direct report? Ms Sidhu-That is right. Senator JACINTA COLLINS-And you did not go into much more detail about it than that? Ms Sidhu-I asked him why he had not made that clear. I think they were the words I used. Senator JACINTA COLLINS-And he said? Ms Sidhu-He said he was protecting a source. Senator JACINTA COLLINS-There is one other element of the contacting of Commander King that is not clear in my mind. You said that you started to attempt to contact him on his mo- bile phone on the Friday. Ms Sidhu-Yes. Senator JACINTA COLLINS-But you did not get through to his voicemail until the Saturday. Ms Sidhu-That is right. Senator JACINTA COLLINS-Why would his voicemail not take messages prior to the Saturday? Ms Sidhu-I have no idea. The phone rang out on the Friday. When I tried again on the Saturday I got through to a voicemail. Senator JACINTA COLLINS-I see. So he may not have diverted his phone through to his voicemail on the Friday? Ms Sidhu-I do not know what had happened on the Friday, but I could not seem to get to him on the Friday. Senator JACINTA COLLINS-Did he inquire of you as to the urgency of these discussions? Ms Sidhu-No. He wanted to know why and I explained in general terms. Senator JACINTA COLLINS-How did you describe it? Ms Sidhu-I may have mentioned a submission to this inquiry-I cannot recall exactly. I did say that we felt it would be useful if we got together to refresh our collective memories. Senator JACINTA COLLINS-And that was the full extent of the description? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1589 Ms Sidhu-Yes. Senator JACINTA COLLINS-And he did not say, `Okay, I'll be down in Canberra in about another week's time. Is that okay?'? Ms Sidhu-No. His response was, `I can't do that today; I'm in Sydney. I'm recovering from a late night. Can we do it during the week some time?' I said that, if he was away for the weekend, I did not perceive it of such import that he should cut his weekend short to come back for a meeting. Senator JACINTA COLLINS-And the next day you ring him back and say, `Tomorrow.' Is that correct? Ms Sidhu-Sorry, what was that? Senator JACINTA COLLINS-The next day after speaking to Dr Hammer you ring him back and say, `Tomorrow'. We know tomorrow eventuates, so I am assuming that you must have. Ms Sidhu-I cannot recall. I am pretty sure I rang Dr Hammer on the Sunday and said that he could not make it. It may have been then that Dr Hammer said, `Why don't we do it on the Monday?' I called Commander King on the Monday morning at work. Senator JACINTA COLLINS-So you spoke to him on the Monday morning? Ms Sidhu-I am pretty sure. I did not call him back on the Sunday. Senator JACINTA COLLINS-So you spoke to him on the Monday morning for him to reorganise his day and get down to Canberra that day? Ms Sidhu-No, he was already back in Canberra. He was coming back to Canberra on the Sunday night. Senator JACINTA COLLINS-So he is in Canberra and you arrange to meet later that day? Ms Sidhu-Yes. Senator JACINTA COLLINS-Commander King said that there was a dual purpose to this meeting-the re-creation of his inbox. Ms Sidhu-Yes, his Outlook account. Senator JACINTA COLLINS-Can you describe what that means? Ms Sidhu-That was not the purpose of the meeting. He thought he might roll both tasks in together: to have the meeting and, seeing he was in the vicinity, to go into PM&C and check his email, which we had retrieved so that he could verify names, dates and places. CERTAIN MARITIME INCIDENT CMI 1590 SENATE-References Thursday, 2 May 2002 Senator JACINTA COLLINS-Sorry, so that he could do what? Ms Sidhu-So that he could verify dates, places and names of various events surrounding this incident. Senator JACINTA COLLINS-For a submission that never occurred? Ms Sidhu-Yes, that is my understanding. Senator JACINTA COLLINS-So it was not for the purpose of the Senate's request to access that material? Ms Sidhu-As far as I know, no. Commander King had himself asked if his accounts could be restored so that he might look through them again to refresh his own memory. Senator JACINTA COLLINS-When did he make that request? Ms Sidhu-I think it was within the preceding fortnight or the preceding week or two. I cannot recall exactly. Senator JACINTA COLLINS-Was that around the time when he would have indicated what his contact details were following the mention of his name in Senate estimates? Ms Sidhu-I cannot be sure. I do not know. Senator JACINTA COLLINS-At that time did he also seek access to his inbox to be able to clarify what further material might be required of him? Ms Sidhu-No. My recollection of it is that it related to about the time that I suggested to him that he might himself like to refresh his memory about the sequence of events as I was doing. Senator JACINTA COLLINS-But who did he make the request to? Ms Sidhu-He asked me to see if I could organise it. So I started the process off because he was outside the department. I generated the request from within the department on his behalf. Senator JACINTA COLLINS-I am stretching myself to recall, on the basis of Commander King's submission, the relevance of email traffic. Can you shed any light on that question? Ms Sidhu-This is in relation to the restoration of his email account? Senator JACINTA COLLINS-His story is that he had a face-to-face contact with Chatterton; he reported that in a 10-minute meeting with you; you then attempted to have a meeting with Dr Hammer; and you then later had a meeting with Dr Hammer. I have not traced any email traffic in any of the story so far. What is the relevance of the email traffic? CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1591 Ms Sidhu-It is not the email traffic but the email software which contains a calendar. Senator JACINTA COLLINS-I presume that the Defence email software contains a calendar. Ms Sidhu-Yes, that is right. It is like a diary system. Commander King used that diary to note all the meetings that he attended. Senator JACINTA COLLINS-So it is his record of the meetings he had with you and Dr Hammer and- Ms Sidhu-No, he was trying to refresh his memory, as I recall. You will have to ask him to clarify this if you want further on that. Senator JACINTA COLLINS-So it was not so much the email traffic; it was more of a diary. Ms Sidhu-He wanted to clarify the dates on which he attended the Strategic Command briefings is my understanding. Senator JACINTA COLLINS-Part of his report refers to you and he, in a sense, reconcurring on the need to bring this information to the attention of Dr Hammer. Ms Sidhu-Yes. Senator JACINTA COLLINS-This discussion occurred in the afternoon before you did actually get to meet with Dr Hammer. Can you tell us what you recall of that discussion? Ms Sidhu-Nothing at all. It may have been a very short one. Senator JACINTA COLLINS-Had you made arrangements with Commander King when you had been unable to see Dr Hammer earlier in the day to reconvene at a particular time or did he come to your office and remind you that this issue was still alive? How did it happen? Ms Sidhu-We probably did not make a formal arrangement. It is a fairly informal, open- door office, so it is a question of whenever we can catch Dr Hammer we try and pin him down. Commander King might have reminded me and informed me that Dr Hammer was in his office and not at a meeting and so may be available at that time for us to go and see him. Senator JACINTA COLLINS-According to Commander King's statement, you and he rediscussed the import of this information and determined that it was still important to bring it to the attention of Dr Hammer. Ms Sidhu-I have no recollection of that specifically. Senator JACINTA COLLINS-So your recollection is still back on the basis that it is indirect gossip? CERTAIN MARITIME INCIDENT CMI 1592 SENATE-References Thursday, 2 May 2002 Ms Sidhu-Yes. Senator JACINTA COLLINS-A smoke signal at best. Ms Sidhu-Yes. Senator JACINTA COLLINS-It is so important that, on two occasions on the day in which this information had been conveyed to you, you had to seek to talk to Dr Hammer. Ms Sidhu-I judged it to be potentially important. If it were true, I judged that it might be important, yes. Senator JACINTA COLLINS-But not potentially important to go into more detail about the nature of the source of the report. Ms Sidhu-As I say, I did question Commander King at that time about the source and he was reluctant to pass it on. Senator JACINTA COLLINS-Senator Faulkner, did you want to go back or can I move on to another area? Senator FAULKNER-I wanted to say that the committee is in receipt of correspondence, which I am just about to read. CHAIR-I had better deal with that. I think that this ought to be the subject of a very discreet and, hopefully, short private meeting. Senator FAULKNER-I agree, but I must say that I think it is unlikely that we will be able to recommence our public hearings in the time frame. You might give some consideration to that. CHAIR-We will adjourn for a short period. I cannot specify the length of time. I thank the witness. Would people please vacate the room. Senator BRANDIS-I take it that the witness is not excused. CHAIR-The witness is in continuance but is standing aside for the moment. Proceedings suspended from 3.36 p.m. to 3.46 p.m. CHAIR-The committee will shortly adjourn proceedings, in which case, Ms Sidhu, you are excused for the time being, but the committee will obviously want to conclude its examination of your evidence at some future time. At this stage, I cannot be sure when that will be. There are a couple of other things I should mention. One of the reasons for us taking this course of action is that we have now received a letter from the Department of the Prime Minister and Cabinet relating to evidence adduced earlier today. That letter has been considered by us, and will now be released publicly-and I so order. CERTAIN MARITIME INCIDENT Thursday, 2 May 2002 SENATE-References CMI 1593 Another point I should make is that the committee will be considering the list of witnesses and in what order they should be called as a consequence of the contents of this letter. We will shortly be in a position to say what that will be, but in the interim period between now and when the committee next meets it is by agreement of the committee that I am to say that any inquiries about procedure or about decisions of the committee should be directed to the chair and that members of the committee themselves will not be commenting on the contents of the letter that has now been publicly released or on the next steps of the committee's inquiry. Any inquiries about the letter that has now been released are to be directed to the secretariat. As there are no other matters, thank you very much, Ms Sidhu. Unfortunately for you or for all of us, we will have to resume at some other time. Committee adjourned at 3.48 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident WEDNESDAY, 22 MAY 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Faulkner, Ferguson, Mason and Murphy Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BONSER, Rear Admiral Marcus (Mark) Frederick, Director General, Coastwatch, Australian Customs Service ..........................................................................................................................................1628 EDWARDS, Ms Katrina Mary Rubenach, former First Assistant Secretary, Social Policy Division, Department of the Prime Minister and Cabinet.......................................................................1704 O'CONNOR, Mr Michael James, Executive Director, Australia Defence Association........................1597 WALKER, Group Captain Steven, Participant, Centre for Defence and Strategic Studies Course 2002, Department of Defence..................................................................................................................... 1681 Wednesday, 22 May 2002 SENATE-Select CMI 1595 Committee met at 9.34 a.m. CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate for the committee are available from the secretariat staff and copies have been placed near the entrance to the room should anyone require a copy. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. The hearing will last until around 10.30 tonight. Today's hearing will be suspended for lunch between approximately 12.30 p.m. and 1.30 p.m. and for dinner between 6.00 p.m. and 7.30 p.m. I remind members of the committee that there will be a private meeting of the committee during the dinner adjournment. The waiting room next door is for witnesses only and is a private area to which the press and public have no access. Witnesses and others will need to make their own arrangements for eating meals today as the cafeteria facilities in Parliament House, I am obliged to inform you, will not be open after 5.00 p.m. Tea and coffee are available all day outside the hearing room. I remind everyone that mobile phones are to be switched off in the hearing room. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. When witnesses are first called upon to answer a question they should state clearly their names and positions. Witnesses will be asked to make an oath or affirmation. The committee has agreed to requests from certain witnesses that they be accompanied by counsel. However, counsel has no right to address the committee, nor will the committee address questions to counsel. Before I call the first witness, Mr Michael O'Connor of the Australia Defence Association, I want to consult quickly with the committee, if I may. We have material provided to us, which corrects evidence from earlier witnesses, that has been provided under their hand, and we need a resolution of the committee to release that. Is that agreed? Senator BARTLETT-Yes. CHAIR-All of those documents are thereby released. Senator FERGUSON-That is those that deal with the corrections? CERTAIN MARITIME INCIDENT CMI 1596 SENATE-Select Wednesday, 22 May 2002 CHAIR-Yes. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1597 [9.38 a.m.] O'CONNOR, Mr Michael James, Executive Director, Australia Defence Association CHAIR-Mr O'Connor, the normal procedure-which I think you have been in the room to witness in the past-has been for us to invite you to make a few opening comments if you wish, speak to your submission if you so choose, and then be available to answer questions from the committee. Mr O'Connor-I have no opening statement. The submission stands as it is and I am happy to accept questions. CHAIR-I know I have done this on the record before but, since this is your first appearance before us, I apologise for calling you on a previous day and then not having you come to the table to give evidence. We are aware that dislocated your program and we apologise for that dislocation. The events of the day overtook us and it was unfortunate and unavoidable from our point of view. Please accept the committee's considerations on that point. Mr O'Connor-I understand. Thank you, Mr Chairman. CHAIR-The normal process is that we rotate the questions between various of the parties here, but I have lost my thread. I think it may be your turn. Senator FERGUSON-Mr Chairman, seeing that the witness is here at the request of the other parties, I suggest that they have the first questioning. Senator FAULKNER-I thought, if we were in rotation, it would be the government-but let us not get bogged down in that. CHAIR-We have got an outbreak of ultrapoliteness and concern for one another. Senator FAULKNER-Extremely unusual! CHAIR-Do I ascertain, Senator Faulkner, that you are in a position to proceed? Senator FAULKNER-By all means, if you want me to kick it off. CHAIR-It seems the government senators have no questions, so perhaps you should call- Senator FERGUSON-I did not say that we had no questions; I just said that it was at the request of the others, and I thought we would give them the opportunity to question him first. Senator FAULKNER-Mr O'Connor, I thought a useful starting point might be for us to talk about what you perceive, from your association's perspective, to be the appropriateness or otherwise of the ADF and the RAN in particular being involved in what are effectively non- CERTAIN MARITIME INCIDENT CMI 1598 SENATE-Select Wednesday, 22 May 2002 military tasks-in this case Operation Relex-and what you think might be both the short-term and long-term impacts on the ADF as a result of that involvement. Mr O'Connor-The association has been a long-term proponent of the concept of an Aus- tralian coastguard to handle offshore law enforcement tasks. I think our first submission to gov- ernment on this was 25 years ago, in 1977, and it has been repeated on and off. There is a sig- nificant difference, I believe, between the task of law enforcement and the task of the military defence of the Commonwealth and its interests. You do not send out frigates to arrest people when these frigates are armed with missiles, heavy guns, helicopters and all the rest of it. It is not only a waste of asset but also a misuse of the military. It diverts military assets into a task for which they are not equipped or trained, and I think it is quite wrong for a country as sophisticated and as mature as Australia not to have this capability which 40 other maritime countries in the world have. That being said, of course in this particular incident we did not have much alternative. I recall from my own time in Navy that the question of a coastguard arose at least 36 years ago and was agreed by everybody, but no department or agency wanted to give up their existing assets. So nothing happened, and nothing has happened since. Senator FAULKNER-Do you think the naval ships that have been involved in Operation Relex are appropriately equipped for the role, the tasking that they are undertaking? Mr O'Connor-I think not. These are vessels which are spending a lot of time cruising, which has its value-but it does interrupt training. They are also vessels that are excessively heavily armed. They are vessels which do not have much in the way of accommodation if they are having to rescue significant numbers of people. In some ways they do have valuable assets in terms of communications-the helicopter equipped ships, bearing in mind too that some of them are not helicopter equipped. But essentially the Navy has had no choice but to use them. It has been required by government to carry out these operations and there really is no alternative to its doing it. Senator FAULKNER-What about the expense? What about the drain on Defence budget? Mr O'Connor-My understanding is that that is being replaced in the normal Defence budget. I have not pursued that issue in any great detail, but it is something that would have to happen simply because a Defence budget these days is very largely directed towards maintaining the Defence Force asset-the training, the recruitment, the management, the modernisation, the maintenance, the writing of doctrine and so on-and there is very little left over for operations. If you do not have additional money provided for operations then the sustainment base is going to be broken into, and that will have a knock-on effect over a period of years unless that money is replaced. Senator FAULKNER-I understand that point. Is there any issue, do you think, in terms of compromising future capital projects as well? Mr O'Connor-I think that is part of it; the future capital projects are part of that sustainment operation and the whole development of the Defence Force. I think we saw in the budget last week the deferral of something like $150 million of capital spending to the following year. This is going to have a knock-on effect. We have been having this knock-on CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1599 effect over quite a number of years because of demands made on the operational capability of the Defence Force, which lead to deferral of major projects or sometimes arise out of cost overruns on major projects. It is having a deleterious effect on Defence, I believe, and we in a sense wait with baited breath and fingers crossed that nothing will go wrong. Senator FAULKNER-You talk about the deleterious effect. One of the issues that I have raised in questioning at earlier hearings of this committee with senior Navy officers has been the question of the impact of Operation Relex and the publicity surrounding it on morale within the RAN itself. I wondered if you had any reflections on that issue, because it seems to me that that is also a significant issue that arises from the Navy's involvement in these operations. Mr O'Connor-That is very difficult to quantify, and I do not believe that I am able to do that. I can speculate that naval personnel who are confronted with a situation which may require them to act as policemen, in a somewhat forceful way at times, but at the same time put aside their responsibilities for protecting life at sea, will experience a moral conflict of their own. That will not stop them from carrying out their duties but it will affect their decision as to whether or not to re-engage at the end of their term of engagement. I would expect-and this cannot be quantified yet, and you will not see the impact except perhaps over the next three or four years-to see an increase in retirements from the Navy, of both officers and other ranks, as a result of this. Senator FAULKNER-I accept the point you make: it is difficult to judge. Is that the only way of judging impact on morale-what happens in the longer term in terms of separations and so forth? Are there no other ways of measuring this? I am asking you that question, and obviously you are not a currently serving officer. This could be a perspective that might be more appropriately asked of a senior officer-and I have asked this question of senior officers-but how would a senior officer currently serving be able to judge that issue? Surely, it is of great significance for the service itself. Mr O'Connor-Measuring morale is, I suppose, a duty of all officers at whatever level and the more junior will report to the more senior. This is a constant process, and I would expect that the senior people in the Navy would be looking at this, would be constantly monitoring it, and their assessment would be far more accurate than anything I could suggest. Senator FAULKNER-What about politicisation of the Defence Force? Does that flow into this morale question too? Mr O'Connor-I think it certainly does. Senator FAULKNER-That is a hypothetical question, in the first instance. Mr O'Connor-Yes. To some extent, I have difficulty in determining what politicisation means in this context. If it means using the Defence Force for the benefit of a political party, then I think we are sailing fairly close to dangerous waters at the moment. If it means turning the Defence Force, or parts thereof, into an organisation that will do what one party wants it to do and not another party, then I think we are a long way from that. But I do believe we are getting into fairly difficult waters at the moment. I think it is incumbent on any government to CERTAIN MARITIME INCIDENT CMI 1600 SENATE-Select Wednesday, 22 May 2002 take responsibility to ensure that that risk is not taken and that the Defence Force is not used, or seen to be used, to implement a policy that is politically divisive in the community. Senator BRANDIS-Mr O'Connor, if the government determines a policy, that policy is op- posed by the opposition and the implementation of that policy involves operational conduct by the Defence Force, that is not politicising the Defence Force, is it? Mr O'Connor-No, it is not. And I would not want to be understood as expressing that particular point of view. I am saying that, where the Defence Force is required to implement a policy that is politically divisive in the community, it is incumbent on the government to take responsibility for the policy, to explain the reasons for the policy as thoroughly as possible to the community and to the Defence Force and that the Defence Force has to be insulated from the acts it carries out and the public political process. That is a challenge for governments and ministers, but it is one that is terribly important because, if you have the Defence Force closely associated with a particular political policy or party political policy, when the next government of a different political flavour comes in there is at the outset that deep suspicion between the government and the Defence Force over the loyalty of one to the other. CHAIR-What do you say then, Mr O'Connor, when, as is the case on this occasion, a communications minute is issued that effectively centralises operational comment from the minister's office rather than from the key figures in command? Firstly, that is not a usual practice, is it? Mr O'Connor-No, and I do not think it is very wise either. I think we are dealing with a somewhat different culture. For a start, there is an excessive culture of secrecy in Australian government in my view, if I may say so. Secondly, there is a very protective attitude that if anything is going to be said only one person will say it, otherwise someone else will say it and will make mistakes and the minister carries the can. In some ways I think they are not as thick- skinned as perhaps they ought to be and that, perhaps, they are too afraid of headlines. CHAIR-On this occasion, the commander of HMAS Adelaide made what I thought from the evidence was a quite forthright but unguarded comment to a researcher from Channel 10. This was the hook on which the whole issue hung in terms of later media exploration of whether children had been thrown overboard. The commander said in retrospect that he was in breach of his orders-that centralised commentary. Do you have any comment to make on whether, for example, he may have been technically in breach of orders; nonetheless that was the right thing to do? Mr O'Connor-If he was asked by a journalist as to what actually happened, or even about his perception of what happened, as distinct from a comment on the policy of whether they should be doing it-and I think there is a distinction to be made here-I do not see why he should not be able to respond. If he were asked about the validity of the policy, I do not believe he should answer that. He should refer that question upwards. Indeed, I suspect he should report it to his superiors that this is a line of inquiry that is being pursued. It certainly is the sort of thing I would have done. But, in one sense, we have got to a stage where officers of the Defence Force are being put under enormous pressure over what most would regard as nitpicking incidents. This is distracting them from their proper duty. It will also distract them from the use of their initiative and capabilities when it comes to serious operations. They will be intimidated. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1601 If your field officers are intimidated, for political or other reasons, you do not have an effective Defence Force. Senator FAULKNER-Let us focus in on what this committee is examining. Of course, you are aware of the terms of reference of the committee. In relation to those matters, given that in an answer to an earlier question you felt that we were `getting into fairly difficult waters at the moment', can you identify any concerns in relation to politicisation about those issues that this committee is examining? Does your association have concerns about those matters? Mr O'Connor-The concerns we have are related very much to the effect on morale, capability, efficiency and effectiveness in the sense that, if you create a situation whereby officers in command of an operation on the scene are intimidated and are pressured continually to report on what is happening on the ground or on the water, you run a serious risk of creating an officer corps which is ineffective in operational terms. It might be very loyal in political terms, and it might be very efficient in management terms, but when it comes to serious operations such as combat operations, if they are looking over their shoulder all the time at what might be said by their superiors, or if they are having to answer phone calls from public servants in Canberra about what is going on while they are carrying out an operation, then they will not be doing their job. They will be intimidated. Senator FERGUSON-It has not happened in this case. There were no public servants from Canberra in direct contact with operational commanders. Mr O'Connor-It is something that you have to be very careful about. Senator FERGUSON-But it has not happened. It did not happen in this case. Mr O'Connor-It depends on how you define the various people who were calling. I would tend to regard a number of people in uniform as public servants in this context. They are in the management structure. Senator FERGUSON-You can hardly describe Brigadier Silverstone, who was in Darwin, as being in Canberra. Mr O'Connor-I do not think he should have been interfering in the operation at all. Senator FERGUSON-That is your opinion. Mr O'Connor-As I understand it, Brigadier Silverstone was instructed to find out what was going on. Senator FERGUSON-He was the joint task force commander. CHAIR-Can we allow the witness to complete his answer. Mr O'Connor-If that were the situation then I think Brigadier Silverstone should have told his caller to back off and let Adelaide run their operation and he would get back to them. CERTAIN MARITIME INCIDENT CMI 1602 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-I would have thought that the point is this: as colleagues on the other side of the table here say, he is the joint task force commander-that is true. But aren't you making the point that there is a special arrangement organised, via Air Vice Marshal Titheridge, with Brigadier Silverstone where information can be passed on in relation to matters concerning Operation Relex so that a politician could make a comment on those issues, if asked, on a television program that was to be screened within hours? Mr O'Connor-I understand that was the situation. In my view, if you have a minister who understands the proper relationship between government and the Defence Force, his answer to the interviewer would be, `This is an ongoing operation and I am not going to interfere with the conduct of an operation which is 5,000 kilometres away in the Indian Ocean. Let's see what comes out before I can give you an answer-I will give you an answer as soon as I can but I am not going to interfere.' Senator FAULKNER-In that instance, it seems to me that it would be a perfectly reasonable response for a minister to make. I think you would appreciate that there are times when it may not be proper for a minister to comment on an operational matter, even if he or she is in full possession of the facts. Would you accept that there may be reasons that it was inappropriate? Many ministers from both sides of politics have said that, at times. I have got to say to you that many of us who are currently in the opposition have not asked questions because we do not want to trample into operational matters. Mr O'Connor-I think there is a question of judgment here. You are right-I have no quarrel with that. In this particular operation I would have thought that the concept of operational secrecy would not have applied. It was more a case of avoiding harassing the people on the scene with unimportant matters. I go back to what I said earlier about the difference between law enforcement and military operations. If that was a law enforcement body out there-a coastguard, for example-they would be perfectly entitled, as state police forces do daily, to say to the responsible minister, `This is an operational matter; this is a police matter; this is a law enforcement matter. You have no business in it. The outcome may be an arrest and a charge-placing people before the court-and you cannot get involved in that.' I just think that that is the way we should be heading. Senator FAULKNER-So, understanding that-and I think I do-when some spiv working for the Minister for Defence runs up the excuse, during what becomes a highly political issue of children being thrown overboard and the photographs that allegedly related to it, that they cannot comment on it because it is an operational matter, surely that ought to be exposed for the fraud that it is? Mr O'Connor-I have not followed the evidence but- Senator FAULKNER-I have. Mr O'Connor-given what you say, I would agree. Senator FAULKNER-This is one of the problems, isn't it? You have a situation in Defence where, in respect of some of the issues the committee is examining and focusing on, a Defence Instruction (General) meant that the minister's office responds to all queries, all questions, and CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1603 all matters in relation to Operation Relex. It means that the PACC organisation in Defence, those who are responsible for public relations, are not able to make any comment. Everything is referred back to Minister Reith's office. Are you aware of that Defence Instruction (General)? Mr O'Connor-Yes. Senator FAULKNER-We have that situation occurring; that sort of gagging of the Defence operation in the broad. Does your association have a view about the appropriateness of that, particularly in the context that this was happening-literally, through one of the most sensitive periods of the political cycle-right through the period of a general election campaign? Mr O'Connor-I think it is a fairly futile sort of instruction to give, for one thing. Senator FAULKNER-It worked. Mr O'Connor-It is unenforceable because people- Senator FAULKNER-I don't know, Mr O'Connor; I think it worked. I do think the members of the PACC organisation were very frustrated-they have told us that-but they could not answer journalists' questions. They actually sent all of the questions back to Mr Hampton in the minister's office-he is the spiv I was referring to, by the way. Mr O'Connor-The reason I say it is a futile sort of instruction to issue is that it simply guarantees that there will be leaks. As part of the background, for some years I was assistant director of security in the Navy at the time when we did not have a serious PACC organisation. Our view always was that you were as free as possible with the media and the amount of information you could release on operational security matters was much greater than most people thought, once you start to analyse the problem. Essentially, the sort of instruction that was issued about Relex was operationally nonsensical. It was futile because, ultimately, as we now know, the information that the media wanted was going to come out; and it always will. I am sure most people here would understand that it is one of the realities of public life that the more you try to sit on something, the more likely it is that it is going to come out. Senator FAULKNER-I do not know how you can say that. I understand the point you make but, in relation to the issue of children thrown overboard, we know that a whole lot of senior Defence personnel knew, literally from early October, that there was no truth to that. They knew that the photographic evidence that was fraudulently made public by the minister's office as supporting those claims was a complete misrepresentation. This does not become public effectively until after the election campaign is over. Mr O'Connor-If you give senior Defence personnel the freedom to make public corrections of what is being said by the minister and the government, then you create a different but similar problem of the question of loyalty of the Defence Force to the government; it is then perceived to be disloyal. I cannot prove it, but I believe that the minister was in fact told, on about 11 or 12 October, that no children had been thrown overboard and that the photographs did not disclose that children had been thrown overboard. But, for whatever reason, that was not made public by the minister. You can speculate as to why it was not made public, but you cannot expect, in my view, the senior people in the Defence Force to bypass their minister or the CERTAIN MARITIME INCIDENT CMI 1604 SENATE-Select Wednesday, 22 May 2002 government and to start releasing this information in what has become a politically charged atmosphere. That would be an element of politicisation of the Defence Force in itself. Senator FAULKNER-But why do you say so confidently to the committee that the minis- ter was informed on 11 October that there was no truth to the allegation that children had been thrown overboard and that the photographs misrepresented such an event? Mr O'Connor-Because by that time it was known that that was the case and it was the CDF's responsibility to pass that information to the minister. It was his responsibility and I do not believe he abandoned his responsibility. It was a clear responsibility on his part to ensure that that information got to the minister. Senator FAULKNER-We are aware, from the evidence that Admiral Barrie has given, of what communications he had with the minister, but we are also aware that Defence was placed in a position where it was unable to correct the misinformation that was in the public arena. There was a Defence Instruction (General) that meant that every inquiry went back to the minister's office. Even though the PACC organisation knew there was no truth to what was being said, they were unable to say to journalists that that was the case. Surely such a situation represents a critical change to the relationship between Defence and government. Surely we saw, right through that period, a critical shift in that relationship. Mr O'Connor-You are right in assessing it that way. On the other hand though, as I have indicated, if you look at it from the department's point of view, from PACC's point of view, from CDF's point of view and from the secretary's point of view, if I now go and bypass the minister's office and put out a statement correcting this then I have become part of the political process. That, then, becomes a serious difficulty for him because, whoever the individual is, he has to protect Defence's independence from the political process. In that sense, I think Defence did its job properly-perhaps reluctantly, but they did it properly in accordance with their minister's instructions. But the instructions were wrong to start with. Senator FAULKNER-Have you had senior Defence personnel come to you in your role expressing concerns about the way this issue was handled? Mr O'Connor-I would have to say that I am reluctant to answer that in detail, particularly if it involves giving names- Senator FAULKNER-I am not asking you to give names. CHAIR-I do not think he is asking for names, ranks and serial numbers, Mr O'Connor. Mr O'Connor-I can say that a number of senior officers have expressed concern to me about what they see as a poisonous relationship between the upper echelons of the Defence Force and the government at the moment. They are concerned because they think that this is damaging for the future of government-Defence Force relations in this country. I have been at some pains to suggest to other people, outside the military, ways in which this problem could be overcome. CHAIR-Why do you use the word `poisonous' in terms of the relationship? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1605 Senator FERGUSON-Are they senior officers who are saying this-the most senior officers or further down the ranks? CHAIR-If it is `the most senior' it identifies who the officer is. Mr O'Connor-They are very senior officers-two-star level and above. Senator FERGUSON-That is contrary to the evidence that we have been given, of course. Senator FAULKNER-We have not heard from Mr O'Connor before. Senator FERGUSON-But we have heard from senior officers. Senator MASON-But we have heard from Air Marshal Houston, Admiral Barrie and Air Vice Marshal Titheridge. All gave evidence contrary to what Mr O'Connor is currently saying. Senator FAULKNER-I do not believe that any of those senior officer indicated that other senior officers had not approached Mr O'Connor- Senator FERGUSON-That is not what we are saying. Senator MASON-If the implication is that there is a poisonous relationship, that implication should not be left standing, because very senior officers have said that there is not a poisonous relationship. Senator FAULKNER-Mr O'Connor can only answer for himself. CHAIR-Order! This witness is giving his evidence. We are now debating what weight we put on it. This is a debate we do not need to have now. Let us ask questions of the witness. Senator FAULKNER-I was doing that before I was interrupted. CHAIR-I know; I actually interrupted you first. Mr O'Connor, why do you use the word `poisonous'? Mr O'Connor-The word `poisonous' is my assessment. What has been expressed to me has been concern about how the whole affair has been handled between the government and the Defence Force, and about the whole process, particularly since the election, including what happened in the estimates committee and what happened in parliament during question time in the House of Representatives when the Prime Minister dealt with- CHAIR-The torpedo versus the Exocet speech? Mr O'Connor-Quite frankly, I believe it is absolutely unprecedented. It was certainly interpreted by quite a lot of people-I am referring only to the very senior officers-as a deliberate and conscious attack on the integrity and loyalty of the Defence Force. CERTAIN MARITIME INCIDENT CMI 1606 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-To play one very senior officer off against the most senior officer on the floor of the House of Representatives seems to me to be as political as it can get. You say that this general issue of politicisation of the Defence Force is unprecedented, but isn't it actually unprecedented politicisation? Mr O'Connor-We come back to this question of politicisation. I suppose I approach it from the perspective of people in the Defence Force who do not believe that they are part of the political process and would resist becoming part of the political process. But, if you interpret politicisation as meaning an attempt to use the Defence Force as an ally in a partisan political debate, that is politicisation. That particular incident, which I regard not only as unprecedented but also as particularly important, in fact accused one or the other of those officers of being a liar. The same happened with Admiral Shackleton, when Admiral Shackleton was told by Mr Hendy to change his story over the incident on 8 November. They were essentially ordering Admiral Shackleton to tell a lie in public. That is unconscionable. Senator FAULKNER-So where to from here? Mr O'Connor-I believe that the government, and probably the Prime Minister, has to take some serious steps-private ones-to restore confidence. Senator FAULKNER-I, myself, have asked very senior officers-I have asked the Chief of the Air Force and the CDF and some other very senior officers-about the relations within the most senior echelons in the Defence Force. Are you able to say to this committee what you believe the impact of the `children overboard' issue and the publicity that has surrounded the work of this committee-and the evidence that has been adduced at estimates committees and at this select committee-has been at those very senior levels of the Defence Force? More importantly, what are the longer term implications of what has occurred? Mr O'Connor-My estimate is that it has generated a level of distrust, not necessarily of this government but of the political process which has allowed this to happen. Regarding long-term implications, some restoration work done by the government-again in private; they do not have to go around in sackcloth and ashes, but do a bit of sorting out in private-will restore confidence and we can put it all behind us and start again. There will be, I suppose, a residue of concern that in a politically highly charged atmosphere, it could happen again. Senator FAULKNER-What do you think of Minister Reith's legacy in this regard? Mr O'Connor-I certainly do not think he has been helpful. I must say, I had some concerns when he was appointed Minister for Defence because he is such a politically combative individual and there was a risk. I do not think I am telling stories out of school, but his staff asked me to look at a paper that he was preparing and comment on it. It was subsequently issued and it was politically charged in the sense of, say, Liberal is better than Labor. I made a number of comments, some of which are incorporated. CHAIR-Not only politically charged but obviously wrong. Senator FERGUSON-It is a fact. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1607 Mr O'Connor-I thought the paper in its initial form was constructive but, as the debate went on, it became extremely destructive and I think the minister's office egged on a very destructive discussion about that particular paper. In fact, it got away and the paper became a slanging match. Nothing constructive, nothing useful, happened. That was very disappointing because, while I am a strong believer in bipartisanship in defence policy, that does not mean to say that we are both right all of the time. Senator FERGUSON-That is strictly your personal view, not the official view of the Defence Association. Mr O'Connor-I concede the point, Senator. Senator FERGUSON-Thank you. Mr O'Connor-As time went on, that situation got worse. When a significant or politically important incident cropped up, it was inevitable that a minister of Peter Reith's style would extract the maximum political benefit from it. I do not think he had the understanding of a proper relationship between a government and the Defence Force that we have come to expect and enjoy in this country. Senator FAULKNER-You say he is combative-most people would say that and many would say a lot more. Are you surprised that he is not willing to be combative at these committee hearings on the issues that we are investigating? Senator FERGUSON-Mr Chairman, once again we are asking for personal opinions on the issue. Senator FAULKNER-I am asking the witness for a personal opinion. Senator FERGUSON-Normally committees are out to get facts, not personal opinions. Senator FAULKNER-I am asking for a personal opinion. Senator FERGUSON-It is ridiculous. CHAIR-I will allow the question. It is a question of the view of the witness and he is here representing- Senator FAULKNER-Most witnesses are asked for their opinions- Senator FERGUSON-Why don't we ask another 25 people about their personal opinions? CHAIR-Order! I have ruled on this and the question will be allowed. Senator FAULKNER-Most witnesses are asked for their opinions- Senator FERGUSON-No, they are not. CERTAIN MARITIME INCIDENT CMI 1608 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-and I am asking for this opinion. Senator FERGUSON-We might get another 25 people and get some more personal opinions. CHAIR-Do we want to debate this point endlessly or do we want to hear an answer? Senator FAULKNER-You can ask more people if you want. I would like Mr Reith to come and give a few personal opinions. Senator FERGUSON-But you have made that quite clear. Senator FAULKNER-But he won't, as we all know. CHAIR-Order! A question has been asked and it is allowed. Please proceed, Mr O'Connor. Mr O'Connor-After all that, I am not sure that I can answer the question. I really have not given it much thought. From my perspective, Peter Reith is in the past. It is my responsibility- at least for the next six months-to deal with the current minister and his shadow. Senator FAULKNER-You indicated to this committee that a number of very senior officers in the ADF have expressed concerns-and I am not going to put words into your mouth-and you outlined what they were. Could you indicate to the committee when this occurred in terms of the time frame that we have been examining? Was it after 10 and 11 October last year, when this issue of children overboard became public? Was it after 8 November, when it became an issue of notoriety again in the election campaign in relation to comments you have mentioned with Admiral Shackleton? Did it postdate the election and was it during the period of the estimates committee when the Chief of Air Force made the statements he made? I am interested to know whether this was an ongoing thing or when those sorts of concerns were expressed to you. Mr O'Connor-It is an accumulation of conversations that I have had with such officers since the election and not before the election, because I kept well away from Canberra at that time. They all arose from discussions which I initiated. In other words, these officers were not ringing me and complaining to me. They arose out of discussions which I initiated and were usually on quite unrelated topics, but we wandered around. We are talking about people who have been friends of mine for a number of years and they talked fairly freely, which is why I am not prepared to give names. It has all been since the election; some of it certainly predated the estimates committee hearing, and it has been ongoing. Senator FAULKNER-Have you been surprised by any of the evidence that has been ex- tracted either at estimates committee hearings or at this select committee? Mr O'Connor-I have not been particularly surprised by some of the evidence, although I was surprised at the apparent attempt to persuade Commander King to give `approved'-shall we say-evidence to the committee. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1609 Senator FERGUSON-So you were not surprised when Admiral Barrie said at estimates that he still believed that children had been thrown overboard? That did not surprise you, either? Mr O'Connor-I interpreted Admiral Barrie's comments as being very cautious statements which avoided committing himself to any sort of belief. Senator FERGUSON-But having had all these discussions with his senior officers, when he came out at estimates and said he still believed that children were thrown overboard, you can tell us you were not surprised that he said that? Mr O'Connor-I am trying to recall what I thought he actually said, which was that he was not persuaded that children had not been thrown overboard. It is his job to be persuaded. That is what surprised me about that. It is his job, as Chief of Defence Force, to be persuaded one way or the other. They either were or they were not. He should have been persuaded, and I believe he was persuaded as far back as early to mid-October. Senator FERGUSON-But that is not what he said, which is why I am wondering why you were not surprised if you believed that. Mr O'Connor-I was not surprised in the sense that I thought Admiral Barrie's statement was designed to keep him out of trouble. Senator FERGUSON-But in fact you are saying that you believe that he was persuaded back in October that what he had been told was wrong, and you are virtually accusing him of not telling the truth at estimates when he said, `I wasn't persuaded.' You cannot have it both ways. Mr O'Connor-I think not being persuaded and being dogmatic about the answer are two different things, and I think that is the way he would see it. But I keep coming back to the point that, whether he was persuaded or not, I believe it was his job to find out. If you want me to accuse him of lying, then the other way out of it is to accuse him of dereliction of duty-and I would prefer to not accuse him of either. I do not believe he is guilty of dereliction of duty. Senator FAULKNER-No, but he seemed pretty cluey. Senator FERGUSON-You are getting pretty close. Mr O'Connor-Well, you want me to. Senator FERGUSON-I do not want you to do anything. You are giving evidence before the committee. You made the statements. Senator FAULKNER-Admiral Barrie has actually, I think, been hurt by this process. Do you think that is fair? Mr O'Connor-Absolutely. But I think it is self-inflicted. CERTAIN MARITIME INCIDENT CMI 1610 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Defence has been hurt by this, hasn't it? Mr O'Connor-Absolutely, and in broader-if you like, constitutional-terms, I think the relationship between the government of the day, whoever it is, and the Defence Force has been quite severely damaged. Senator FAULKNER-Are you critical also of the opposition for engaging in close questioning of defence personnel at Senate estimates and for being as engaged as heavily as it has been-senators such as me-in this process? Are you also critical of the opposition in that regard? Mr O'Connor-I am not sure that I am- Senator FERGUSON-This is not a mea culpa, is it? Senator FAULKNER-You will find out why I am asking the question. Senator FERGUSON-I am sure we will! Mr O'Connor-I am not critical of the opposition or of the government for pursuing this issue through this committee, because I think the committee is looking at very serious issues which transcend the importance of whether children were thrown overboard or not-transcend to an enormous degree that very minor passing incident. It is now looking at a process which has quite significant constitutional implications, and I think it is very proper for the Senate to be doing that. Senator FAULKNER-Do you think Defence has been hurt by some of the evidence that has been extracted at this Senate select committee's hearings and at the estimates committee hearings? Mr O'Connor-I think there is a risk in pursuing, to the sort of extent that some members of the committee have, the sort of detail that they have been looking for-what happened, as it were, from minute to minute on board Adelaide, in the midst of an operation, in the midst of something that is happening out at sea on a ship that is bouncing around with 150-odd people on board, all of whom will have different perceptions of what went on-and doing that in the sense of treating, in some cases, the witness as if they were trying to hide something. Senator FAULKNER-I think any objective observer would say in relation to these issues that Defence has been damaged by the `children overboard' issue in the broad. I know that peo- ple would say that that is necessarily fair. I would certainly argue that it is the government that ought to be damaged in relation to this, as opposed to the Defence Force, but I do accept that there has been that damage. I have asked you these questions because I would be very interested in your views and those of your association on actually getting this balance right. In other words, even if there is damage to Defence through such a process, is it not really in the long- term interests of Defence to actually have these issues in the public arena, exposed and then ap- propriately dealt with? I think the sense of some of your evidence to us is that you have to lance the boil, if you like, or cauterise the wound. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1611 Mr O'Connor-I think there are a number of elements here. I will put it this way: the actual incident itself-that is, whether children were thrown overboard or not-is unimportant in the context of the whole operation and in the context of related operations. The problem lies in what happened here in Canberra, in this building and in the one across the way at Russell Hill. That is where the problem lies. That is where the relationship broke down, was damaged, was mishandled or however you would like to put it. That is where the restoration has got to be. I think it is quite important that this be brought out in public, but you do not get to the core of the issue by questioning what happened on board HMAS Adelaide. That is really quite unimportant-invariably, you are going to get mixed views anyway because people see things differently. The guys in the crew of the RHIB will see things differently from those on the bridge of Adelaide and they will see things differently from those who may be down in the engine room who only pick up the gossip later on. The reality is that everybody on board Adelaide did their job to high professional standards. I think it is incumbent upon all authorities to make sure that that is recognised. Senator FAULKNER-Don't you think this committee has actually assisted in that regard? Mr O'Connor-For example, that female sailor who went overboard to rescue people I believe deserves quite a serious commendation for brave conduct. CHAIR-I think we have said that by way of commentary as we have gone along. Mr O'Connor-I think it should be pursued, quite frankly. I am not a particularly courageous individual but it strikes me that going overboard in the middle of the Indian Ocean to rescue people is an act of considerable physical courage, albeit that she may be trained to do that sort of thing. CHAIR-In this case the threat was that these people may be sucked under the boat by the propellers so anyone going to their rescue was equally in peril of having the same fate. Mr O'Connor-It was a very perilous situation and it was a most admirable act. But you can say the same for the whole crew of the Adelaide-they performed their duty, obeyed their orders and at the same time managed to protect and rescue those people when the vessel did sink. The real problem does come back to Canberra and the way in which that operation was managed. It is a classic example of how the micromanagement of a military operation from a great distance will make a mess of things. We have seen it in the past overseas and we have seen it in Australia in our military history. It is something that people in authority need to understand. You are dealing with a very fluid situation where even the people on the spot do not necessarily have the full information until they actually complete the operation and can sit back and assess and analyse what actually happened. Senator FAULKNER-I would have thought that the evidence we heard about HMAS Adelaide did a lot to reinforce the professionalism-that is the usual word-and the bravery of the officers and sailors on board that naval vessel. I am not sure that your interpretation is right that it was damaging either to the cause of Navy or to the cause of Defence. Isn't there some advantage for many Australians who are not necessarily exposed to the trials and tribulations CERTAIN MARITIME INCIDENT CMI 1612 SENATE-Select Wednesday, 22 May 2002 that those on board a naval vessel in an operation like Operation Relex face? There might be a benefit for that being made more public and, as a result, better understood. Mr O'Connor-Absolutely, I have no reservation about that. Senator FERGUSON-And there is also the bravery of all the people on every other vessel that rescued the other 11 illegal entry vessels that came in, who have gone practically unnoticed in this and who, in some cases, rescued 33 people out of the water after vessels had sunk. The concentration has been on the crew of the Adelaide, when we had just as many brave people on every other serving vessel who have saved, or helped, people from at least 11 other vessels. Mr O'Connor-Certainly, but to come back to Senator Faulkner's question-yes, let us see more and more publicity of what they do in the service of the Australian people, not just in the service of the Australian government, as it happens to be from time to time. Senator FAULKNER-It is a bit hard, isn't it, when there is a Defence Instruction (General) that effectively means that all the positive stories about the role of the Navy, the role of Defence, in this operation cannot get out? Everything had to be screened through the minister's office and, really, the only messages going out were the ones that had some political objective- in most cases, the ones that were intended to be damaging to the Labor Party in the middle of an election campaign. Senator FERGUSON-If that is the case, why wasn't the information about all the other SIEV vessels that came in illegally during the election period put out if it was so politically charged? CHAIR-Perhaps we could ask Mr Reith. Senator FERGUSON-If you are going to choose one vessel and say that there was a politically charged atmosphere and that, through the minister, no information was put out from the others when there was a person thrown overboard- Senator FAULKNER-You did not even get that level of censorship during the Second World War. Senator FERGUSON-If it was to be done to the government's benefit they surely would have used all of the other vessels. Senator FAULKNER-And everybody knows it. CHAIR-We are debating between ourselves again, colleagues. Senator FAULKNER-I will leave you with my question, Mr O'Connor. Mr O'Connor-I think it comes back to what has been discussed extensively over the last months. The reality is that that instruction was issued. Once the instruction is issued, whatever they may think of the instruction people in Defence are bound by it. They are under a legal CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1613 obligation to comply with it, so they really have no choice. I agree entirely about the unwisdom of that particular instruction. But, once it was in place, I do not believe that people in Defence can be criticised for complying with it. Senator FAULKNER-Mr O'Connor, you are very linked into Defence, and particularly linked into the Royal Australian Navy. When did you become aware that there was no truth to these `children overboard' allegations? Mr O'Connor-I was not paying much attention to it at the time, to be quite honest. I was uneasy that some confusion had arisen, because I did not believe, and still do not believe, that confusion should have arisen, and I am not persuaded that it in fact did. But I probably became seriously uneasy and concerned when the Australian reported it on 7 November, I think, and I was asked by the media for my reaction. I became even more uneasy when Admiral Shackleton made his initial statement and then produced what was a very bureaucratic retraction later in the day under instruction, as we now know, from the minister's office. It was a sort of Clayton's retraction: a retraction that wasn't a retraction. Senator FAULKNER-Admiral Shackleton effectively told us he did not think he was pressured. Senator FERGUSON-He said it was not under instruction. Senator FAULKNER-Admiral Shackleton effectively told us that he did not think he was pressured. Mr O'Connor-I find that hard to believe. If the minister's chief of staff rings him up and tells him to tell another story, that is pressure. Senator FAULKNER-That is your version. Senator BRANDIS-Don't you think Admiral Shackleton would be in a better position than you are to tell us the circumstances in which he made his statement and what operated in his mind at the time? Mr O'Connor-I am telling you my interpretation, Senator. Senator BRANDIS-But, you see, he is not telling us his interpretation; he is telling us what he knows was in his own mind and why he did what he did. Mr O'Connor-That is for you to choose. I look at the two statements. Senator BRANDIS-No. That is the evidence, Mr O'Connor. We cannot run away from the evidence. The evidence is that Admiral Shackleton said, `I was not pressured.' You have said that he was. Admiral Shackleton would know better than you, wouldn't he? CERTAIN MARITIME INCIDENT CMI 1614 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-No. The evidence is that Admiral Shackleton makes a statement in the morning and he makes a clarifying statement in the afternoon and, in between times, he gets a great deal of political pressure. I am with Mr O'Connor on that one. Senator FERGUSON-You are with Mr O'Connor on most things. Senator BRANDIS-But, Senator Faulkner, you are not with Admiral Shackleton. Senator FAULKNER-I don't know that that is true. Senator BRANDIS-You are not being fair to the evidence. Mr O'Connor-I can only say what my perceptions are as an outsider. I make no claims beyond that. Admiral Shackleton made a statement in the morning; in the afternoon he made a clarifying statement which, as I say, was a retraction that was not quite a retraction. In the meantime-according to evidence, as I understand it, before this committee-he was called by the minister's chief of staff, Mr Hendy, and told to put out a clarification. I regard that as political pressure. Senator BRANDIS-But why do you disregard Admiral Shackleton's own evidence that he was not pressured? Mr O'Connor-Because Admiral Shackleton was simply being loyal to his master. Senator BRANDIS-Admiral Shackleton took an oath, Mr O'Connor. You are not suggesting that he lied under oath, are you? That is a preposterous suggestion. Mr O'Connor-I am not suggesting anything, Senator. You are making the suggestions; I am not making the suggestions. Senator BRANDIS-I am defending Admiral Shackleton; I am saying that his evidence is absolutely credible and trustworthy and ought to be respected rather than being glossed by someone who would not be in a position to know. Mr O'Connor-I have never claimed anything beyond that. I am simply saying what my perceptions were, and I make no claim beyond that-none whatever. Senator FAULKNER-And these were your perceptions on the day, weren't they? Mr O'Connor-They were my perceptions on the day, on 8 November. Senator FAULKNER-They were not only yours though; they were perceptions that seem to have been retailed fairly thoroughly right through the press at the time. Mr O'Connor-I believe so. Senator FERGUSON-That is to be expected. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1615 Senator FAULKNER-There was a lot of commentary, as you know, Senator Ferguson. It is a reasonable point to make. There was a lot of commentary. CHAIR-Colleagues, please do not debate one another; ask questions of the witness. Senator FAULKNER-Yes. My question is: Mr O'Connor, are you aware that many journalists also speculated in precisely the same manner as you are? Senator BRANDIS-That is a very good question! The record should show that not even Senator Faulkner could keep a straight face when he asked that one. CHAIR-Order! Senator FAULKNER-You wanted me to put my comment in the form of a question, so I have. Senator FERGUSON-The chairman did. CHAIR-Order! The questioner is Senator Faulkner. Senator FAULKNER-Senator Brandis would describe that as a leading question- Senator BRANDIS-No, I would not, Senator Faulkner. Senator FAULKNER-and I would accept that because he is such a master of the leading question. CHAIR-Please come to order! Senator Faulkner, you can put your question to the witness. Senator FERGUSON-He has. Senator FAULKNER-I merely made a comment that these matters were being speculated on publicly. I do not want to dominate too much of the questioning, Mr Chairman; I realise I have been doing that, so perhaps other committee members might want to ask questions. CHAIR-I have a few questions to put at this stage. First of all, Mr O'Connor, I direct you to points one to six of your submission-the introductory part-which describe for us what the Australia Defence Association is and how it is made up. Is it reasonable for me to take from that that it is regarded by government as an authoritative independent source of advice and criticism of the management and strategic direction of our defence forces? Mr O'Connor-I think so. I think that is a reputation we have built up over the years with governments of both major political parties. We tend to consult with both. I think we are respected as independent, but that is really for others to judge. CHAIR-Yes. Is it fair to assume from what you have said that the Defence Association has the confidence of the Australian Defence Force and has an ear to what is going on in the CERTAIN MARITIME INCIDENT CMI 1616 SENATE-Select Wednesday, 22 May 2002 Defence Force so that it is able to offer suggestions, confidentially or publicly, about management procedures and strategic issues? Mr O'Connor-I would not say that we have the confidence of the Australian Defence Force; we certainly would not claim it. If you could identify someone who could speak authoritatively for the Defence Force as a whole, you would have to ask them. The reality is that some people in the Defence Force like what we do and some think we are way off beam. It depends on the issue and it depends on what point of view we take. We try to be as constructive and well informed as possible. CHAIR-Let me put the question another way: do you pride yourself with knowing what is going on in the Defence Force? Mr O'Connor-Not totally. We try to develop information. We tend to focus our information in a number of areas-in things like strategic policy, management, force structure issues and so on. We tend not to get into personnel or procurement issues because they are too large and complex for our organisation. CHAIR-Do you take an interest in the relations that other defence forces in the world have with their governments and ministers? Mr O'Connor-Only superficially. We have more of an interest in the relationship of the military to government in those countries where the military is politicised or does have a political significance-such as Indonesia-as a matter of contrast to the more traditional Western approach. CHAIR-I go to your conclusion, point 35. I will not quote it because it is there and self- explanatory, but in the last sentence you say: The Association urges the Committee- that is, us- to take this matter into its consideration- which is the failure to be more frank with the community: those points you have made in your submission- and produce a firm non-partisan statement of principle in its report. You might want to think about this for a minute, but could you outline for us what you believe our `non-partisan statement of principle' should be in our report? Mr O'Connor-It would be along the lines of a restatement of the principle that the Defence Force is responsible to the government and that the government is responsible to the parliament, to the Australian people. The Defence Force there is ultimately responsible to the Australian people. It is a national asset; it has to be isolated from the political process and care has to be taken at the level of government not to involve the Defence Force in matters that affect the CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1617 partisan political debate in the country in support of one side or the other. It is going to be a very difficult one to write, but I think it is quite important that it be written. That is the area in which the damage has been done by this maritime incident and I think the committee has a role to play in restoring the relationship to what it was. CHAIR-In the military, the chain of command is pretty well sacrosanct. In this case there was a departure from the chain of command. Should we say anything about that in our statement? Mr O'Connor-That is obviously up to the committee, but- CHAIR-I am asking for your view. Mr O'Connor-Yes. I do not believe the chain of command is as precise as it should be. For example, the Maritime Commander has a responsibility to the Commander Australian Theatre and then to the Chief of the Defence Force, but he also has a responsibility to the Chief of Navy. There are divergent lines of authority and some of those were in evidence in the various discussions that were going on on 7 October where you were getting information coming from different directions through different channels. It seemed to go from Adelaide to Brigadier Silverstone and then branch off before it came back together again. I think that is an issue that has concerned the association for some time and it is one that needs to be addressed. CHAIR-What do you think we should say about it? Mr O'Connor-I think we should say that there needs to be a greater clarification of the chain of command in operational matters from the commander on the scene, to his force commander, to the Commander Australian Theatre. I would put the Maritime Commander out to one side-ultimately, he is a subordinate of the Commander Australian Theatre-and Commander Australian Theatre then responds to the Chief of the Defence Force. Having said that, there is a whole debate in defence circles, a quite lively debate, about whether in fact we need such structures as Northern Command or Command Australian Theatre. Quite frankly, I can see that when Headquarters Australian Theatre moves to the Canberra area the degree of confusion is going to increase quite dramatically, simply because you will have the ability to communicate immediately and directly with both Defence Force headquarters over in Russell and Headquarters Australian Theatre over in Queanbeyan or wherever they are going to be. It is one headquarters too many. CHAIR-I think they are going to be in the electorate of Eden-Monaro. On this occasion Commander Banks was in the middle of an operation when he received a phone call from Brigadier Silverstone. It was when he was midway through managing an operation for the purposes of obtaining information which was reported to Air Vice Marshal Titheridge so that the Treasurer, who was appearing on the Sunday program that morning, could be briefed. Is that an example that ought to be commended, or is it an example that we should express a view about as not being desirable in the proper management of the Defence Force? Mr O'Connor-I would like to see the committee express the view that it is undesirable and that you do not interfere with an ongoing military operation for simply expedient purposes- politically expedient purposes in this case. It was a situation where either Air Vice Marshal CERTAIN MARITIME INCIDENT CMI 1618 SENATE-Select Wednesday, 22 May 2002 itically expedient purposes in this case. It was a situation where either Air Vice Marshal Titheridge or Brigadier Silverstone should have, in my opinion, told the person who was questioning him to back off, that there was an operation going on and that he was not prepared to interfere with that operation. CHAIR-Does it make any difference that, as was the case on this occasion, an election had been announced on the Friday but the writs had not been issued until the Monday? Mr O'Connor-I would not see it as an issue. CHAIR-Does that colour it in any way? Mr O'Connor-I see the election and the timetable of that as irrelevant, at least in principle. That should apply to any military operation whether there is an election next week or in three years time. CHAIR-Should we say anything, in your view, about the minister's press officer speaking to people down the chain of command suggesting things that they should do? Mr O'Connor-Yes. I think that that was quite wrong. If you go trawling around a department to get to the answer you want, you will eventually get it, but it is not a very authoritative answer. That is what happens; he ends up with an answer that is simply not authoritative. CHAIR-So what should apply in those circumstances, in your view? Mr O'Connor-He goes to the chain of command. Indeed, I am not at all sure that the minister's press secretary should be in that business anyway. CHAIR-How would you define what should be his role, then? Mr O'Connor-I think he is responsive to the minister. He is not in the administrative chain at all. He stands to one side, essentially. If he is going to deal with anybody in Defence he should be dealing with PACC. CHAIR-Should we comment-you have commented on this-on the Prime Minister, in question time, referring to senior officers, in this case Air Marshal Houston and Admiral Barrie. This was the `Exocet versus the torpedo' answer to a question in question time. Should we say that that type of behaviour should or should not be engaged in? Senator FERGUSON-Mr Chair, perhaps we can invite Mr O'Connor along when we are drafting the report. You are asking all the things that we should put in a report. That is crazy. CHAIR-I am asking for his views. His submission has concluded by saying we should make a firm, non-partisan statement of principle- Senator FERGUSON-He should come along and write it. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1619 CHAIR-And we have established that this is a respected independent organisation. I am simply asking him what that statement should contain. Senator JACINTA COLLINS-I think the Prime Minister's defence policy was launched with this organisation. CHAIR-That I do not know. Mr O'Connor-I would hope that the committee would take up that particular issue and respond quite forcefully. That sort of statement, even given that it was made in the hothouse atmosphere of question time, is something that a prudent minister should avoid. Essentially he is attacking an individual, and the one individual whose dealings with the government were unexceptionable, effectively calling him a liar-and this a man who cannot answer back. That is quite unreasonable and unfair. Personally, I think it calls for an apology. Senator FAULKNER-I asked both Admiral Barrie and Air Marshal Houston about this very issue, and Admiral Barrie expressed absolute confidence in Air Marshal Houston and absolute confidence in the way he handled that matter in early November, late in the election campaign. I think it is important that that at least is said. Mr O'Connor-I do not think anybody doubts seriously that Air Marshal Houston did the right thing and behaved absolutely properly. Senator FAULKNER-Admiral Barrie does not doubt that at all, and he has been very clear about that and very frank. Mr O'Connor-I do not believe anybody does. Senator FERGUSON-Nobody suggested that. Who suggested he did the wrong thing? Mr O'Connor-I'm sorry? Senator FERGUSON-Who has suggested that Air Marshal Houston did the wrong thing? Nobody that I know of. Mr O'Connor-It was suggested in question time by the Prime Minister. Senator FERGUSON-He did not say he did the wrong thing. He was supporting a view of his chief. That is what he was doing. Senator JACINTA COLLINS-He was described as the opposition's Exocet missile, which was outrageous. Senator FAULKNER-That is right. It was only the Prime Minister! Mr O'Connor-By the same token, he also in effect accused Air Marshal Houston of being a liar, and Air Marshal Houston is not a man who can answer back. CERTAIN MARITIME INCIDENT CMI 1620 SENATE-Select Wednesday, 22 May 2002 Senator FERGUSON-No more than you have accused Admiral Barrie of being a liar by saying he was persuaded in October- Mr O'Connor-I have not accused Admiral Barrie of being a liar. Senator FERGUSON-You said he was persuaded in October and then when he said in estimates in February that in fact he was not persuaded that children had not been thrown overboard, you were in effect accusing Admiral Barrie of being a liar. Senator JACINTA COLLINS-He changed his mind. Barrie changed his mind. Mr O'Connor-He said something different at his press conference a couple of days later. Senator FERGUSON-He said he knew in October. CHAIR-Let us proceed with the questioning. I want to move to the issue of the media and their access to operational reporting. We had the gallery journalists here-you may have seen their submission or heard their evidence-and they expressed a view that a lot of these matters would have been cleared up if they had had the sort of access that they say has applied in previous military engagements to be able to report what was happening on the front line. Your association has opinions, I am sure, about what is the right relationship of media access to front- line reporting and so forth. Could you tell us what they might be? Mr O'Connor-We believe that there is a place for operational secrecy, but it is a very small place and it relates very much to things like protection of intelligence sources and protection of operations that are planned for a time in the future. In terms of ongoing and immediate opera- tions the need for operational secrecy is actually quite limited, because by the time an enemy could make use of any information that was published it would no longer be of any serious in- telligence value. We tend to believe that more information should be released and that it would be released more promptly if journalists could go directly to people in the Defence Force rather than have to go through the PACC bureaucracy. The other somewhat cynical view we have is that if you flood the media with information, they will not be able to handle it anyway. CHAIR-Is the principle you are talking about that, `If you've got nothing to hide, hide nothing'? Is that the sort of principle? Mr O'Connor-That is about it, yes. I think there would be a general belief in government and in opposition-in both major political parties-that the Defence Force does a good job, particularly operationally, and that it is an organisation of which all Australians can be substantially proud. It is very professional, highly trained and expert in what it does. I know from going out into the community and talking to community groups, as I do, that people in the community have a very high regard for the Defence Force. I think there is a case for sustaining that by letting people see what the Defence Force is capable of and what it is doing. For example, the media coverage of the INTERFET operation in East Timor had a very substantial positive effect on the relationship between the Defence Force and the Australian community generally. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1621 CHAIR-Both Admiral Barrie and Admiral Smith expressed what I took to be anxiety that they do not want the Defence Force to be seen as it was during the Vietnam War-they mentioned the Vietnam War period-and that attitude taken towards defence by Australians. In your view, would a more open reporting regime-the sort of regime you have talked about- prevent that type of view from forming, if it indeed has? Mr O'Connor-Yes, I think it would. I have no problem with having all the information out in the field for people to pick over. I am not at all sure, in the context of what you said, that the reputation of the Defence Force was so badly damaged during the Vietnam War. CHAIR-I am paraphrasing what I understood Admiral Barrie and Rear Admiral Smith to say. Mr O'Connor-I know that that is an attitude that pervades some of the older elements of the Defence Force. It is not a perception that I had when I was serving in the Defence Force during the Vietnam War, but I know there were regrettable instances, and I think most people now regard them as regrettable. Experience, particularly the post-Cold War experience of remembrance celebrations, of peacekeeping operations of various kinds and now of the war in Afghanistan, reinforces the perception of the community that they have a pretty good, albeit a very small defence force. CHAIR-Are you familiar with the press gallery's submission to us? Mr O'Connor-No. CHAIR-It is just that you seem to be arguing many of the same points that they argued. I was going to ask you a question about their submission, but if you are not familiar with it there is no point in my doing that. Mr O'Connor-It is a view that I must say I have had for many years, going back to my time in the Navy. In fact, it was the subject of considerable discussion in the intelligence staff at the time, and there were recommendations that we give more information to the media about the Defence Force, its operations and so on. There was the classic case not long after I joined when a Soviet submarine was detected spying on some of our trials. The secrecy boys got to work on it, and a sailor and a journalist who published the story were punished, but the fact was that the other side knew that we had detected them because we were sitting over them for several days, bouncing sonar off them, and it was a good story to tell. They sent this submarine down to spy on us; we detected it and chased it off. We thought that it was a great story to tell. CHAIR-It was an example of Defence effectiveness. Mr O'Connor-That is the sort of thing that we should be doing more of to show just how good our people are. CHAIR-Do you or your association have a view on the relationship between a Defence minister and a Prime Minister and how that relationship should work, given that defence is a very sensitive national issue? CERTAIN MARITIME INCIDENT CMI 1622 SENATE-Select Wednesday, 22 May 2002 Mr O'Connor-I do not have a view and I do not think that the association would have a view. That, I suspect, is something that is going to vary between governments and between personalities. It would be totally related to the workings of the national security committee of cabinet. I will not say that I do not understand it, but there would be no hard and fast rules about it; a lot will depend on the personal relationship between the Prime Minister and the Minister for Defence and maybe other ministers on that national security committee, and that will be different with every combination. CHAIR-Would you expect the Minister for Defence to tell the Prime Minister of any sensitive or important matters within his portfolio area? Mr O'Connor-Absolutely. I would have thought he had a responsibility to do that. Senator FERGUSON-That is a personal opinion, not a Defence Association opposition? Mr O'Connor-Yes, absolutely. I doubt whether it is laid down in any rule book. Again, as I have said, it would depend on the personal relationship between the Prime Minister and that minister. Indeed, wider relationships in cabinet would vary with every cabinet. CHAIR-I hope that there is no suggestion that the defence minister should not tell the Prime Minister sensitive or important matters. As far as the working of the ministerial staff is concerned, do you have a comment about the view that if you tell ministerial staff, effectively you have told the minister? Mr O'Connor-The whole issue of the role and responsibility and/or authority of ministerial staffs is one that probably needs some fairly close examination, which I am not competent to do. When you get a situation where a ministerial staffer calls someone in Defence-maybe a senior officer or maybe a not-so-senior officer-the expectation is that he is speaking on behalf of the minister. That expectation may not be validly based in many circumstances. I think there needs to be a much clearer understanding of what the authority of ministerial staffers is in the department or in the Defence Force so that if someone is questioned by one of these officials, they understand where it is coming from. It may be a perfectly simple request about something that is not controversial. It may be a case of how many wheels are on an F111?-just for their own information. That is clearly something that is not a problem. CHAIR-How many wheels are there? Mr O'Connor-I haven't the slightest idea. CHAIR-It is not always possible for senior officers to physically talk to the Minister for Defence. Mr O'Connor-Indeed, but I would have thought that if there was a situation where the minister himself wanted a senior officer to do something-I am talking now about a Chief of Defence Force, a secretary or chief of service-he would make the call personally, if it were something important, of considerable political, operational or whatever significance. I think that comes down to a proper relationship between a minister and his department. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1623 CHAIR-I do not have any further questions. Senator FERGUSON-Mr O'Connor, I want to go to your conclusion. You say: As a national organisation whose members represent many shades of political opinion, the Australia Defence Association is disappointed in the apparent actions of a number of ministers and others since 7th October ... How many members of the Australia Defence Association are there, roughly? Mr O'Connor-It depends on how you count members. Legally speaking, because we are a corporation established by guarantee, the members are the guarantors, and there are 27 of them. If you talk about subscribers, we have about 500 at the moment. Senator FERGUSON-Five hundred? Mr O'Connor-About that. Senator FERGUSON-I presume that the submission you put in is an Australia Defence Association submission, not a personal submission. Mr O'Connor-It is. It was drafted by me and it was agreed by the board of directors. Senator FERGUSON-How many are there on the board? Mr O'Connor-There are seven. Senator FERGUSON-So seven people in the Australia Defence Association actually support the submission? Mr O'Connor-Sixteen people govern Australia on behalf of the Australian people. Senator FERGUSON-I understand that. But essentially you drafted the report. Mr O'Connor-I drafted it. Senator FERGUSON-Was it altered in any way by the board? Were there any things in your original draft that they disagreed with? Mr O'Connor-I cannot recall, to be honest. There was a fair bit of discussion about it, which was carried out by email. Senator FERGUSON-I know. So essentially it is a Michael O'Connor submission? Mr O'Connor-Essentially, yes. Senator FERGUSON-I am very concerned about paragraph 34 of your submission, more than anything, because you say: CERTAIN MARITIME INCIDENT CMI 1624 SENATE-Select Wednesday, 22 May 2002 The most serious outcome of this affair has been a breakdown in trust between the ADF and its political masters. In the next sentence, whether I think you are being rather political yourself, you say: If either Admiral Shackleton or Air Marshal Houston is seen to be penalised in any way by the government, that trust will break down further. Is that a threat of blackmail? Mr O'Connor-No, it is an expression of opinion. Senator FERGUSON-What do you mean by `penalised'? Admiral Shackleton has a very short time to run in his post as Chief of Navy. Are you suggesting that if he is not made Chief of the Defence Force, he in fact is being penalised? He is due to retire. Mr O'Connor-No, it would become simply a matter of interpretation. I would not expect- I do not think anybody expects-he will be made Chief of the Defence Force, but Air Marshal Houston is certainly a contender. Senator FERGUSON-Hang on, you have just talked about Admiral Shackleton. How can the government penalise Admiral Shackleton when he has six weeks to run? Mr O'Connor-I don't know. Senator FERGUSON-Well, why did you put it in there? Mr O'Connor-We were taking account of the possibility, more perhaps in respect of Air Marshal Houston because he was being talked about as a potential Chief of the Defence Force. He had been Acting Chief of the Defence Force just before the election. Senator FERGUSON-All the chiefs quite often do that if they are the next in line, don't they? If the next person in line is not there, it is natural that the next person in line would be acting. Mr O'Connor-I do not say that he is the only contender or, if he is not appointed, that it would be seen as penalising him for this particular incident. Senator FERGUSON-So you are suggesting that if Air Marshal Houston is not appointed CDF, that could be seen as a penalty. Mr O'Connor-No, I am not saying that at all. I am simply raising a very hypothetical situation. I accept that it is hypothetical. If you like, I am simply saying that the government will need to be prudent in its dealings with those two officers in the future. Senator FERGUSON-How can Air Marshal Houston be penalised other than to have his current command taken away from him? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1625 Mr O'Connor-I don't know. For example, it may be a case of not giving him one of the awards that he would perhaps normally expect. That would be seen as penalising him. I am told that perceptions are everything in politics and it is perceptions we are talking about here. Senator BRANDIS-This is a fact-finding inquiry and perceptions are not everything when it comes to trying to find out facts. Do you have any fact to point to to support this piece of conjecture? Mr O'Connor-No, I haven't. In fact, if you look at the language, it is quite clearly putting a hypothetical position. Senator FERGUSON-But you are becoming political by raising the issue that if either Admiral Shackleton or Air Marshal Houston is seen to be penalised in any way by the government-and I cannot see why the government would want to penalise either of them; no one in government has been suggesting- Mr O'Connor-It is a theoretical issue, and it would apply whether there was a coalition government or a Labor government in power. It has nothing to do with partisan politics. Senator FERGUSON-Admiral Shackleton cannot be seen to be penalised; he finishes his command at the end of June or in the first week in July. How could he be penalised? Mr O'Connor-I don't know. It is a very hypothetical situation. There could be situations in which he will be perceived as being penalised. Senator FERGUSON-But that could happen to any officer in the defence forces, but you have picked out two. You have picked out Admiral Shackleton and Air Marshal Houston as two people who, if they are penalised in any way, that would be seen to break down the trust in the defence forces. Mr O'Connor-Those two were picked out because the perception was that, in their actions on 8 November, they seemed to be in conflict with the government; they seemed to be attacking the government. Senator FERGUSON-That simply is not true. Maybe that is your perception. Mr O'Connor-It is the perception of a lot of people. Senator FERGUSON-In your submission, it would have been much wiser if neither of those two people were named. Other people in the defence forces in the past have been overlooked for promotion or have not been appointed CDF- Mr O'Connor-Sure; me. Senator FERGUSON-and nobody suggests that the trust will break down if any of those people are named. A number of people have given evidence to this committee. If one of those people is not promoted, will that be seen as a further breakdown in trust? CERTAIN MARITIME INCIDENT CMI 1626 SENATE-Select Wednesday, 22 May 2002 Mr O'Connor-They gave evidence after this submission was written but the principle applies. As I say, I am putting a hypothetical situation. I am simply saying that this is something that government needs to be cautious about. Senator BRANDIS-It is a bit of a dangerous thing to do, isn't it? With all respect, you are almost as bad as Mr Kevin in raising an innuendo for which there is no factual support and then saying, `Well, you know, these questions have to be asked.' Innuendos have a slightly incendiary effect when raised in committees like this. Mr O'Connor-I am sure the committee will disregard it if it thinks it is of no value. Senator MASON-We might, but the press may not. Mr O'Connor-The press has had the submission for a long time and they have not touched on it yet. Senator FERGUSON-They usually wait until people appear before the committee before they make much comment. The other thing you talked about earlier in your evidence was the coastguard and you said that there has always been the proposition for a coastguard. It has been put to us-and I cannot remember whether it was put in evidence or in private session elsewhere-that in respect of the incidents that occurred, particularly SIEVs 1 to 12, a coastguard vessel could not have handled the situation because, under normal coastguard arrangements, it would not have had enough people on board to handle the situation. Are you aware of that? Mr O'Connor-I was not aware of the evidence given. Senator FERGUSON-I have to correct this because I am not sure whether the evidence was given here or in private discussions. CHAIR-I don't remember that, but it may have been. Senator FERGUSON-There are just simply not enough people on a coastguard vessel to rescue these 33 people in the water and to have boarding parties-they do not have the number of people that are required in order to turn some of these vessels with 200 people around. Mr O'Connor-It depends on how you construct your coastguard. The United States coastguard, the Indian coastguard and the Japanese maritime safety agency do this as a matter of course in their operations. Senator FERGUSON-But they have different vessels from any that have ever been proposed in our case. Mr O'Connor-You are assuming that an Australian coastguard vessel would be of a particular type. This is very theoretical and very speculative because we do not have an Australian coastguard. If we get one that is properly constructed then this would not be an issue. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1627 Senator FERGUSON-I think all of those that have been proposed have not been proposed as requiring the expenditure of enormous amounts of money on the large vessels that are capable of conducting these operations. I have never seen that in the past. There is one other issue that I want to raise: you were talking about politically charged atmospheres et cetera and you were asked earlier about your opinions when you yourself first became persuaded that children had not been thrown overboard. You said, `I wasn't paying much attention at the time.' Can I suggest to you that you were just like the rest of Australia-the Leader of the Opposition, the media and practically everybody else, including officers who have given us evidence at this committee-in saying that it simply was not an issue at the time? In fact, it has only become an issue post-November 8 and post-election, not pre-election? Mr O'Connor-I think that is probably true. Our view in respect of the election campaign was that we were more interested in what the two major political parties were proposing as their overall defence policy. That was our interest. In fact, at that particular time, early in October, I was trying to get a brief statement out of both major political parties that we could publish in our monthly defence brief. We did get those and we did publish them. That was the focus of my attention at the time. It was certainly not on the children overboard issue. My instinct at the time was simply to accept what was being said. It was, I suppose, a fairly good example of how you can be distracted from- Senator FERGUSON-When you are talking about a politically charged atmosphere, I pre- sume you are referring to the normal election process and not the issue of whether or not chil- dren were thrown overboard? Mr O'Connor-Yes, absolutely. Senator FERGUSON-Of course, there are some who are unkind enough to suggest that this whole exercise has taken place post-election in order to find some excuse as to why one particular party won the election and one did not. Mr O'Connor-Quite frankly, that is outside my area of interest. Senator FERGUSON-You were giving your personal opinions before; I thought you might like to put in another one. Mr O'Connor-I have to say that from our perspective as an association we do not care who is elected. We have to deal with whoever is in government. Senator FERGUSON-I am delighted to hear it. CHAIR-Thank you. Proceedings suspended from 11.23 a.m. to 11.48 a.m. CERTAIN MARITIME INCIDENT CMI 1628 SENATE-Select Wednesday, 22 May 2002 BONSER, Rear Admiral Marcus (Mark) Frederick, Director General, Coastwatch, Aus- tralian Customs Service CHAIR-Welcome. If you have an opening statement to make, please proceed to do that and then make yourself available for questions. Rear Adm. Bonser-I am a serving officer in the Royal Australian Navy and am currently seconded to the Australian Customs Service as the Director General of Coastwatch. I assumed this duty on 3 August 2001. I report directly to the Chief Executive Officer of Customs. I am not in any Defence chain of command for the purposes of Customs Coastwatch duties. In making this opening statement for the information of senators I intend to first outline the role and the operations of Coastwatch and then describe Coastwatch's role in the SIEV operations after 3 September 2001, when Operation Relex took effect. I will then turn to the specific incidents relevant to Coastwatch activities that have been focused on during the course of this inquiry, namely the SIEV4 and what has become known as SIEVX, and I will detail my knowledge of them and the Coastwatch involvement in them. One of the principal roles of the Australian Customs Service is to facilitate trade and the movement of people across the Australian border while protecting the community and maintaining appropriate compliance. As part of this role, Customs is tasked by the government with providing a civil maritime surveillance and response service to a range of government agencies. The Coastwatch division of Customs manages and coordinates Australia's civil maritime surveillance and response program using a combination of contracted aircraft, Australian Defence Force patrol boats and aircraft and seagoing vessels of the Customs National Marine Unit. The activities of Coastwatch are determined by the surveillance and response needs of the various government agencies that form its client base. The primary function of Coastwatch is to conduct coastal and offshore surveillance in order to generate information on potential or actual breaches of legislation as they relate to Australia's maritime zones. This information is passed back to relevant client agencies in order to allow those agencies to make informed decisions on whether further action is warranted and, if so, the nature and extent of that action. This information includes, as a matter of course, the content of signals traffic relevant to maritime surveillance from Defence assets operating on behalf of the civil maritime surveillance and response program. Where appropriate, Coastwatch also coordinates the response to a maritime incursion or incident. The centre for Coastwatch operational activity is the National Surveillance Centre, located in Customs House in Canberra. The National Surveillance Centre is a secure facility, accommodating the Coastwatch operations directorate and providing highly secure links to a range of government agencies. It provides a 24-hour, seven-day a week oversight for all Coastwatch operational activity and an analytical capability that draws together information from a range of sources to inform surveillance planning and operations. Under normal operational arrangements Customs Coastwatch has the lead in all civil maritime surveillance and response matters, with Defence providing support through its Fremantle class patrol boats CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1629 and PC-3 Orions as required and when available. This is not the case under Operation Relex arrangements, which I will outline later in my statement. When the crew of an aircraft or vessel operating under the auspices of the civil surveillance program detect an incident considered to be a potential or an actual breach of Australia's laws, information is passed to the National Surveillance Centre. National Surveillance Centre staff, after confirming the nature of the apparent breach, consult with the relevant client agency or agencies to seek advice on whether there is a requirement for a response or any other follow-up action. Other client agencies may be advised of the circumstances of the incident as appropriate. If a surface response is requested by the client agency, Coastwatch arranges for a vessel-usu- ally an RAN Fremantle class patrol boat or a Customs Bay class vessel-to undertake the re- sponse and then assumes a coordination role until the client is able to take control of the situa- tion. Depending on the circumstances of the response, Coastwatch aircraft may continue to pro- vide coverage of the target vessel until an interception has been effected. The response vessels remain under the command and control of their parent organisation. For evidentiary and other purposes, Coastwatch aircraft use digital photography and high definition television or forward looking infra-red to capture images of all vessels likely to be of interest to clients. These images are made available to clients on request. Following the arrival of the SIEV KM Palapa 1 off Christmas Island on 25 August 2001 and the subsequent rescue of its crew and passengers by the MV Tampa, the Australian government instituted new arrangements for the detection of and response to SIEV arrivals. Under Operation Relex, Defence took on the lead role in all SIEV related activity within an area of operations that stretches from Gove in the east, west to Christmas Island and south to Port Hedland on the Western Australian coast. From that time, Coastwatch ceased surveillance activity off Christmas Island and concentrated on the residual national surveillance program around Australia and the provision of support for Defence in the Operation Relex areas in the Timor and Arafura Sea approaches. Within the Relex area of operations, Coastwatch and the Customs National Marine Unit operate in support of Defence. This represents a reversal of the arrangements that normally apply to civil surveillance matters in Australia's maritime zones. The SIEV codenamed SIEV4 was sighted by a PC3 Orion and was intercepted by HMAS Adelaide within the Relex area of operations. The protocols outlined previously therefore applied and Defence had the operational lead, with Customs Coastwatch in support. Customs Coastwatch had no direct operational involvement in the sighting of SIEV4 or in its subsequent interception. The nearest Coastwatch aircraft and Customs vessel during this period were approximately 1,000 nautical miles from the area in which the vessel was detected and intercepted. Customs involvement with SIEV4 was as follows. The National Surveillance Centre was advised by Northern Command in Darwin during the afternoon of 6 October 2001 that a PC3 Orion had sighted a vessel of interest north of Christmas Island. In accordance with standard operating procedures, Coastwatch advised relevant client agencies of the sighting. From that time forward, Coastwatch's role was to continue to provide communications support for the receipt of information from Defence and transmission to relevant government agencies. A check of each of the communications passed through Coastwatch reveals no reference to children being thrown overboard. CERTAIN MARITIME INCIDENT CMI 1630 SENATE-Select Wednesday, 22 May 2002 In early March 2002, following questions at additional estimates, Customs undertook a complete stocktake of all photographic holdings of SIEV4. The stocktake showed that Coastwatch had received six photographic images of SIEV4 taken by the Orion aircraft prior to interception of the vessel by HMAS Adelaide. Four of these photographs were sent from Northern Command on 7 October, and another two on 5 November 2001. On 11 October 2001, Coastwatch received from the Australian Federal Police a single photographic image of SIEV4 taken from HMAS Adelaide. The photograph shows the vessel in no apparent difficulty. On 29 October 2001, Coastwatch received 18 photographic images via a secure email from Northern Command. The imagery was requested by Coastwatch to update our database holdings on SIEV activities. Seven of these pictures were of SIEV4. Three were taken on 8 October 2001 and showed the vessel foundering. The remaining four photographs were taken on 6 October and do not show the vessel in any apparent difficulty. The March stocktake had revealed holdings additional to those referred to in evidence to the additional estimates committee, and Customs therefore contacted the committee secretariat to provide the corrected information. I have read the submission to this committee by Mr Tony Kevin, and the Hansard record of the evidence he provided to the committee on 1 May 2002. I intend to detail my knowledge sur- rounding the vessel known by this committee as SIEVX. However, I would first like to make a general comment on the nature of information provided to Coastwatch in relation to SIEV de- partures. Information in relation to possible boat departures from Indonesia is often imprecise and subject to frequent change. It is not unusual for a vessel's projected departure dates and times to change on an almost daily basis over a period of days or even weeks. Even given an apparently firm departure date, the time of arrival in Australian waters can vary depending on the nature and speed of the vessel, the sea conditions and whether or not the vessel makes a break in its journey to Australia. For example, of the last 15 SIEVs, Coastwatch had prior in- formation of a possible departure date that was within seven days of the vessel's arrival in Aus- tralian waters in relation to only eight of the vessels. There were in fact 29 departure dates pro- vided for these eight vessels and in excess of 30 assessments as to the possible additional de- partures from Indonesia that did not culminate in an arrival. These figures do not include indi- cators in relation to SIEVX. Information provided to Coastwatch is used therefore as a guide for informing surveillance activities rather than the foundation on which these activities are pro- grammed. Coastwatch originally received information as early as August 2001 that Abu Qussey was allegedly in the process of arranging a boat departure of illegal immigrants, probably to Christmas Island. In the ensuing period, Coastwatch received information that the vessel was expected to depart, or had departed, Indonesia on four different dates in August, anywhere within a seven-day block in September and on five separate dates in October. The normal practice was for this advice to be passed by secure phone call to the Australian Theatre Joint Intelligence Centre and Headquarters Northern Command. The information was then normally passed on by them to the Defence commands involved in Operation Relex. Additionally, Coastwatch included a precis of the relevant information in its daily operation summary message. This classified opsum was addressed to the Defence commands and agencies involved in Operation Relex. On 19 October, the vessel codenamed SIEV6 was intercepted by HMAS Arunta off Christmas Island. At this time, Coastwatch and Defence had advice of potential arrivals from at least six people smugglers, including the indications about a possible Abu Qussey departure. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1631 The organiser of the SIEV6 was identified on 20 October. The next indicator about the Abu Qussey vessel was on Saturday 20 October 2001, when Coastwatch received telephone advice from the Australian Federal Police that a vessel was reported to have departed from the west coast of Java the previous day. The information included advice that the vessel was reportedly small and overcrowded. The full detail of the advice is classified. This information was passed by telephone from Coastwatch to the Australian Theatre Joint Intelligence Centre and to Headquarters Northern Command. The Australian Theatre Joint Intelligence Centre and Headquarters Northern Command included this information in classified intelligence reports, both of which were issued to Defence operational authorities on 20 October 2001. On Monday, 22 October 2001, AFP provided further advice to Coastwatch that corroborated the previous advice about the departure of the vessel and that, by now, the vessel should have arrived in Australian waters. Coastwatch agreed that the vessel was potentially overdue, al- though it noted this was not unusual and might be due to a range of factors, including diver- sions. In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress. When Coastwatch has confirmation of departure dates for a SIEV and when it is known to be overdue, Coastwatch also provides this advice to AusSAR. SIEVX met these criteria, based on the additional information received from the AFP on 22 October and, therefore, Coastwatch contacted AusSAR. On Tuesday, 23 October 2001, advice was received from the Australian Theatre Joint Intelligence Centre that a SIEV had sunk. Later that day, CNN reported the sinking of a SIEV and the rescue of 45 survivors. That evening, Coastwatch assessed the sunken SIEV to be the vessel allegedly organised by Abu Qussey. That concludes my opening statement. CHAIR-Thank you, Admiral. Before I go to questions, I announce for the record that this morning we made a decision to release a series of documents, being corrections to evidence by various witnesses to this inquiry. One of those documents was a document from Admiral Smith. The committee has made a decision to recall that document and rescind its decision to release it, subject to that document being properly cleared. I put that on the record. Senator BARTLETT-Thank you for your opening statement, which outlines things fairly well. I am interested in whether you could expand a bit more on how the pattern of information flows changed pre- and post-Relex, once Relex came into operation. As I understand it, before Relex, Coastwatch was more a lead agency and, after Relex, it was more a service agency, if you like, and Defence was the lead in relation to Coastwatch's activity. Did that apply across the board to all Coastwatch activities or simply in the target area in the northern and western parts of our waters? Rear Adm. Bonser-No, that applied only to SIEV related activities in the Operation Relex area of operation. Senator BARTLETT-In those circumstances, what was the precise difference or change in the nature of the information flows? Rear Adm. Bonser-The change was in the lead authority, which became Defence rather than Coastwatch, and there was really no change in the information protocols. CERTAIN MARITIME INCIDENT CMI 1632 SENATE-Select Wednesday, 22 May 2002 Senator BARTLETT-You mentioned, in paragraph 8 of your statement, information that is passed back to relevant client agencies. It states: This information includes, as a matter of course, the content of signals traffic, relevant to maritime surveillance, from Defence assets ... I am trying to get an idea of the information flow there. Were you talking about passing on information such as the content of signals traffic or were you talking about some of the other agencies? Do you monitor signals traffic as well? Rear Adm. Bonser-Yes, we do. Senator BARTLETT-So you would normally pass that on. In this case, you would pass that on to the command of Operation Relex if it were relevant to SIEV activity? Rear Adm. Bonser-They would already have received that through their own sources. We might pass on to our client agencies relevant information such as that a boat has been sighted or is being intercepted. Senator BARTLETT-You are saying that they would have already received it anyway, even though you have got a- Rear Adm. Bonser-The lead authority in the operation would have already received that. Senator BARTLETT-They would have received it through DSD or something like that? Rear Adm. Bonser-Direct from the Defence operational commands. Senator BARTLETT-So you are collecting that separately? I am trying to understand. You are monitoring signal traffic, but Defence also has access to that separately from you so you do not need to pass that on to it. Rear Adm. Bonser-That is correct, yes. Senator BARTLETT-Would most SIEV vessels that arrived here engage in radio communications backwards and forwards most of the time? Rear Adm. Bonser-You are talking about the SIEVs? Senator BARTLETT-Yes. Rear Adm. Bonser-I believe it is rare that any of the SIEVs actually carried a radio. Senator BARTLETT-In that case you would not normally pick up signal traffic from SIEVs. Rear Adm. Bonser-No, and we would not be the agency that would do that. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1633 Senator BARTLETT-You have spoken about the photographic abilities of the Orions. Firstly, do all the Orions that are doing surveillance operate under Coastwatch or are there others that operate through the Air Force? Rear Adm. Bonser-No, the Air Force operates the Orions. They provide some air hours with the Orions in support of the Coastwatch civil surveillance program. The Coastwatch contracted aircraft that I referred to have photographic capability with TV, infra-red cameras and digital hand-held cameras. Senator FAULKNER-Yes, but are you able to get access? There are two different sets of planes, aren't there? There are the RAAF planes and there are the Coastwatch planes, effectively. That is right, isn't it? Rear Adm. Bonser-That is correct. Senator FAULKNER-In terms of the RAAF surveillance, does Coastwatch automatically receive that material? Rear Adm. Bonser-Not automatically, no. We receive material from Air Force surveillance aircraft only if they are conducting operations in support of Coastwatch and we specifically request photographic information. Senator FAULKNER-Were there any standing instructions in relation to RAAF surveillance material for Operation Relex? Rear Adm. Bonser-None that I know of. Senator FAULKNER-So it was on a case by case basis. Any RAAF surveillance would be passed on to Coastwatch only if it were in support of a Coastwatch activity, effectively. Rear Adm. Bonser-That is the normal case, Senator. Senator FAULKNER-Was it the normal case for Operation Relex? Rear Adm. Bonser-I am not sure I understand your question. Senator FAULKNER-Senator Bartlett is trying to establish if there are special arrangements that may have applied in relation to RAAF surveillance with Operation Relex. I am interested in understanding the surveillance material-how much of that is inputted, as a matter of course, to Coastwatch. I am sorry, I do not know-that is why I am asking. Rear Adm. Bonser-I do not know of any special arrangements. Senator FAULKNER-So it is only done if a RAAF plane is operating in support of a Coastwatch activity or directive? Rear Adm. Bonser-Yes, that is correct. CERTAIN MARITIME INCIDENT CMI 1634 SENATE-Select Wednesday, 22 May 2002 Senator BARTLETT-How much RAAF activity is there in the Operation Relex area, in terms of surveillance? Rear Adm. Bonser-There is a RAAF P3 flight daily at the moment. Senator BARTLETT-So if they pick up some potential SIEV, they do not necessarily let you know-they may just pass that straight on to Relex? Rear Adm. Bonser-They would certainly pass it on through the Defence chains of command, and I would expect that we would see that information. Senator BARTLETT-Sorry? You would expect that you would receive that as well? Rear Adm. Bonser-Yes. Senator BARTLETT-You are not aware of any case where you did not receive information when they detected one? Rear Adm. Bonser-I do not know what I have not received. Senator FAULKNER-Of course you do not know what you have not received, but it is still not clear to me how much you get. I do not understand, frankly, the distinction between your answer to Senator Bartlett's question and operations in support of a Coastwatch activity. You do not receive copies of the RAAF surveillance material for RAAF operations in support of Operation Relex? Rear Adm. Bonser-I would not normally expect to see that, no. Senator FAULKNER-Maybe I misunderstood, but could you explain to the committee what you do receive from the RAAF surveillance aeroplanes? Rear Adm. Bonser-In the normal course under the civil maritime surveillance program, if the aircraft are operating in support of Coastwatch, we would receive their post-flight reports of what they had seen. If there was any photographic evidence taken and it was relevant to our client agencies, then we would also ask for that and we would be provided with it. Senator FAULKNER-How do you define `in support of Coastwatch'? Rear Adm. Bonser-That is when they are providing the hours that are legislated that Air Force provides in support of the civil maritime surveillance program that we run. In that case, they are conducting surveillance flights that actually originate from a Coastwatch task. Senator FAULKNER-So you could well have a situation in relation to a SIEV-not an identified SIEV but any SIEV-whereby there is surveillance activity from a RAAF plane, and that material may not go to Coastwatch? Rear Adm. Bonser-No, it may not. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1635 CHAIR-The decision as to what goes to Coastwatch from the RAAF, and what does not, is made by the RAAF-is that what you are saying?-against the criteria as to whether it relates in the RAAF's mind to the task that you have got. Rear Adm. Bonser-I think that is a question that you would have to ask them. CHAIR-I am just trying to get it clear myself. The taxpayer is funding two types of planes: the RAAF planes and the Coastwatch planes. Both are tasked differently, but they both have overlapping responsibilities. If RAAF is flying in this area, they define what they think is of interest to you and provide you with that information. That is how it goes, isn't it? You do not say to them, `I want access to all the information that you gather.' Rear Adm. Bonser-No, I don't. CHAIR-So to put it around the other way, what are the sorts of things that you do not get access to? Rear Adm. Bonser-I don't know. Senator FAULKNER-Sorry, Rear Admiral. Your answer to Senator Cook's earlier question is, I think, different from the answer to my question and Senator Bartlett's question. It is not that RAAF defines it. I understand you to be saying that you define it. It cannot be both ways, otherwise you are getting the damn lot. That is what we are trying to nail down here. It is not RAAF defining it, it is you defining the material you get from the RAAF, isn't it? Rear Adm. Bonser-When RAAF aircraft operate in support of Coastwatch, that is correct, Senator. Senator FAULKNER-And that is all you get. Rear Adm. Bonser-Yes. Senator FAULKNER-I think that is different from what you said to Senator Cook, with respect. That is why I am trying to clarify it. CHAIR-I am happy if that is the definition, but I was coming at this point: if you do not know what they have got, how do you know what to ask for? Rear Adm. Bonser-We have standing requirements from our client agencies, and we base our requirements on those. CHAIR-How would that sort of request look to a layperson? Would you say to them, `Anything that crops up on your surveillance to do with such and such, we want'-and you would expect them to provide it to you? Is that how it goes? Rear Adm. Bonser-That would be correct. If they are operating in support of us, we would have highlighted the types of things that we might expect them to see and the sort of evidence CERTAIN MARITIME INCIDENT CMI 1636 SENATE-Select Wednesday, 22 May 2002 that we would want, such as any photographs of foreign fishing vessels that were sighted fishing inside the Australian fishing zone. Senator FAULKNER-What are the standing requests from your client agencies? Are you able to provide that to the committee on notice? Rear Adm. Bonser-Yes, I can. In fact, I can provide that out of our Coastwatch manual, which lists the information that relates to all of our client agencies and what they are interested in. Senator FAULKNER-Thank you. Senator JACINTA COLLINS-Did that change under Operation Relex? Rear Adm. Bonser-No, it did not. Senator FAULKNER-I think that would be helpful, because I suspect that, at the end of the day, that is the focus of the answer to the question that is being asked. If you could provide that, it would be helpful. Rear Adm. Bonser-I apologise if I misunderstood your earlier question. Senator FAULKNER-I do not think there is any need to apologise, Rear Admiral. The senators on this side of the table may not necessarily be anywhere near as expert as you are on these matters. I am just trying to get some clarity about these operations. We would very much appreciate the documentation you refer to, and I am sure that it will help us. Senator BARTLETT-Going back to your opening statement, paragraph 9 states: Where appropriate, Coastwatch also coordinates the response to a maritime incursion or incident. How do you define `incident'? Does that include safety of lives at sea situations? Rear Adm. Bonser-Yes, it could, but we do not coordinate or manage those types of incidents. Coastwatch is not a search and rescue authority. The sorts of incursion or incident that I am talking about are those that would be breaches or potential breaches of Australian law in our maritime zones. It could be anything from illegal fishing through to an oil spill-in reporting it; probably not in dealing with it. Senator FAULKNER-But it could not be a SIEV. Rear Adm. Bonser-Under Operation Relex, no, because the responsibility for coordinating that has gone to Defence. Senator FAULKNER-Yes, I understand that. Therefore, we come back to what was said previously about the operational instructions which govern Coastwatch's activities. I thought you indicated to us that they did not change with Operation Relex. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1637 Rear Adm. Bonser-No. I talked about information protocols, but the lead authority for the conduct of the operation transferred to Defence from 3 September. Senator BARTLETT-In relation to SIEVs? Rear Adm. Bonser-In relation to SIEVs in the Operation Relex area of operations. Senator BARTLETT-And the legal authority for SOLAS situations rests with Search and Rescue? Rear Adm. Bonser-That is correct, Senator. Senator BARTLETT-Was that the same before and post-Relex? Is there no difference there? Rear Adm. Bonser-Nothing has changed. Senator FAULKNER-How do you describe the Coastwatch role and responsibility, Admiral? For those of us who are not experts in this area, could you give us a very brief summary of the Coastwatch role and responsibilities during the period that Operation Relex applied? Rear Adm. Bonser-Coastwatch's responsibilities and operations in all areas outside the Relex area of operations remained the same as they had been beforehand. Within the Relex area of operations the only thing that had changed was that the lead authority for conducting any response and the surveillance for detecting and intercepting SIEVs had transferred from Coastwatch to Defence. Senator FAULKNER-How did the relationship then work between Coastwatch and Defence? I think we understand that Defence becomes the lead agency. How does this affect your day-to-day operations? How do you relate to the lead agency? How does that work? Rear Adm. Bonser-In the normal course we have a very close ongoing day-to-day relationship with Defence because, prior to Relex, Defence provides support to Coastwatch. That is provided through Fremantle class patrol boats that are available for response to sightings and also the P3 aircraft that supplement our own surveillance aircraft on occasion. When Relex came into being, the lead agency changed and instead of Defence providing support to Coastwatch, Coastwatch provided support to Defence in the form of surveillance. All of the mechanisms we had in place for operating with Defence in support of Coastwatch simply went to allow us to transfer to that new arrangement quite smoothly and we proceeded with that as a matter of course. Senator FAULKNER-Do you operate effectively, for the purposes of Operation Relex, un- der the direction of Defence? CERTAIN MARITIME INCIDENT CMI 1638 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-No. We operate in support of Defence and we provide surveillance support, which is coordinated with their surveillance, but I am not under any direction from Defence and I report through Customs. Senator FAULKNER-Under the coordination arrangements for Operation Relex, how were your inputs managed administratively? Was it through the task force or was it some sort of alternative process? Rear Adm. Bonser-In relation to the surveillance that we were conducting, that was managed through our normal day-to-day relations with Defence, agreeing where we could best provide support with our resources that would complement the surveillance that they were conducting. Senator FAULKNER-What part of Defence did this work through-NORCOM, Maritime Command? Where did you go? How did this work? Rear Adm. Bonser-Primarily through the theatre command and Northern Command. Senator BARTLETT-In terms of the general process, you get intelligence and Defence may get intelligence that a vessel is potentially leaving-and you have indicated in your opening statement that you receive information about vessels potentially in the process of arranging a boat departure. Presumably, Defence is made aware of that as well, either through you or separately. In fact, I presume separately-you are not usually passing on intelligence information to Defence, I guess. Rear Adm. Bonser-Quite often the information is going to both of us in parallel. Sometimes it comes to Coastwatch, and we pass it on. Senator BARTLETT-Wouldn't you normally say that you had better fly out there and have a look to verify that it is out there somewhere? Wouldn't Defence ask you to do that? Rear Adm. Bonser-In the main, the indicators are not precise enough to be able to specifically target a point in the ocean. The surveillance that has been put in place is quite comprehensive and covers a broad area, and it is intended to pick up the boats as they pass through the area. Senator BARTLETT-If you had received information that a boat was potentially depart- ing, wouldn't you send a plane somewhere in that vicinity? Or would you pretty much cover it all as a matter of course anyway? Rear Adm. Bonser-The whole general area is being covered by what is probably the most comprehensive surveillance that I have seen in some 30 years of service. Senator BARTLETT-Were any photographs taken at all of this particular vessel of controversy-the SIEVX? Rear Adm. Bonser-Not to my knowledge. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1639 Senator BARTLETT-So there is no observation at all of that vessel, despite-according to your own statement and even more detail in some of the other information that we got-there being regular intelligence reports that this vessel was departing or had departed or was believed to have departed? Rear Adm. Bonser-There were many and varied and often changing indicators of that particular vessel's departure, but it was never cited or detected. Senator FAULKNER-Let us go back to the photographs. You said not to your knowledge. So there was no Coastwatch generated photographic surveillance of SIEVX? Rear Adm. Bonser-Coastwatch was not flying within 1,000 miles of the area where that particular vessel was allegedly proceeding. Senator FAULKNER-And you are not aware of any possible RAAF surveillance photographs of SIEVX? Rear Adm. Bonser-No, I am not. Senator FAULKNER-I am not saying there are. I am just trying to be clear on this because we were talking a little earlier about the fact that there are effectively two agencies involved in the aerial surveillance from aeroplanes: you and the RAAF. You can categorically assure us about Coastwatch surveillance planes that there are no photographs? Rear Adm. Bonser-Yes. Senator FAULKNER-But is it an open question as to whether there are any RAAF surveillance photographs in relation to SIEVX as far as you know? Rear Adm. Bonser-I would not think it was an open question because I have absolutely no knowledge of any detections of that vessel at all. It is really a question you would have to ask Defence. Senator FAULKNER-I appreciate that. I do understand that, at the end of the day, it is a question better directed to RAAF. But, because some of the RAAF surveillance material comes through to you at Coastwatch, it is not an unreasonable question for us to ask you whether you are aware of any. Rear Adm. Bonser-I am not aware of any. Senator BRANDIS-If it were among the RAAF surveillance material that came through to Coastwatch, would it have come to your attention? Rear Adm. Bonser-If the vessel had been detected and reported, the fact that a detection had been made and perhaps photographs taken would probably have come to my attention. Senator FAULKNER-Probably but not certainly? CERTAIN MARITIME INCIDENT CMI 1640 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-I cannot say that anything would be absolutely certain. Senator FAULKNER-That is the point of the question. I appreciate you cannot give an unqualified answer to that question-of course you can't-but you know of no such RAAF surveillance activity or photographs? That is right, isn't it? Rear Adm. Bonser-I know of none. Senator FAULKNER-And it is very likely that, if it had occurred, you would be aware of it? Rear Adm. Bonser-Yes, it is. Proceedings suspended from 12.30 p.m. to 1.33 p.m. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1641 CHAIR-When we adjourned for lunch, Senator Bartlett, you were in full flight, so you have the call. Senator BARTLETT-In your opening statement-near the end, paragraph 42-you said that in the normal course of operations you inform Search and Rescue about any vessels that have been sighted and may be in difficulty or distress. Could you define `difficulty' any more precisely than that? How do you assess whether something is in difficulty? Is it when it looks likely to sink? Is it when something is just out of the ordinary? Rear Adm. Bonser-It is something that appears unusual-perhaps a vessel that looks like it has broken down. Senator BARTLETT-In this case, you got information that a small vessel, with 400 passengers on board-obviously extremely overcrowded, much more so than any of the other SIEVs-had appeared in our waters. Would that count as an unusual event? Did you notify Search and Rescue about that one? Rear Adm. Bonser-Given the imprecise nature of the information we had, the fact that we did not have a confirmed departure date and that there was a very comprehensive surveillance operation in place, no, Senator. Senator BARTLETT-There was a comprehensive surveillance operation? Rear Adm. Bonser-The comprehensive surveillance that was in place. At this time, all we knew was that there had been a possible departure. Senator FAULKNER-What are your inputs to this, Admiral? Rear Adm. Bonser-The information comes from a variety of sources-in this case, the primary information came from the AFP. Senator FAULKNER-In the case of SIEVX, were there other inputs, apart from the AFP? Rear Adm. Bonser-Around that time, not that I am aware of, Senator. Senator BARTLETT-Did you pass that on to Search and Rescue, or RCC, which is the same thing, as I understand it? Rear Adm. Bonser-At that time, no, because it did not meet the threshold of being a confirmed departure or, indeed, being overdue. That information did not arrive until 22 October. Senator BARTLETT-But you did pass on that information to Relex? Rear Adm. Bonser-Yes, all that information was passed on to all the Operation Relex authorities. CERTAIN MARITIME INCIDENT CMI 1642 SENATE-Select Wednesday, 22 May 2002 Senator BARTLETT-Obviously, as part of all the SIEV interceptions, there were at least three safety of life at sea situations; the Tampa example, which I realise is pre-Relex, is another. For example, with the Tampa situation, did awareness of that come about through a Coastwatch sighting or interception? Rear Adm. Bonser-It was a Coastwatch sighting of the original SIEV, which appeared to be broken down and later showed a distress signal. Coastwatch reported that information, as we normally would, to AusSAR. Senator BARTLETT-And then there was AusSAR or Search and Rescue or RCC-they're all the same thing, aren't they? Rear Adm. Bonser-Yes, they are part of the same organisation. Senator BARTLETT-They put out a general alert, which the Tampa picked up, and went to the rescue. In this case, the information you passed on to Relex, but not to Search and Rescue, was not based on any sightings; it was simply unconfirmed intelligence. Rear Adm. Bonser-That is correct, Senator. Senator JACINTA COLLINS-Going back to the sightings information, where was the Tampa first sighted? Rear Adm. Bonser-Are you referring to the Tampa or the SIEV? Senator JACINTA COLLINS-Sorry, where was the Palapa sighted? Rear Adm. Bonser-That was north-west of Christmas Island. Senator JACINTA COLLINS-How far north-west? Rear Adm. Bonser-From memory, about 80 miles or so. Senator JACINTA COLLINS-Nautical miles? Rear Adm. Bonser-It would have been reported in nautical miles at the time. I will have to check the detail and take that on notice. From memory, it was about 80 miles. Senator JACINTA COLLINS-Is that in your normal surveillance zone? Rear Adm. Bonser-Yes, that would be within the area that we would normally conduct some form of surveillance when Coastwatch is operating out of Christmas Island. We would be looking within the area of the defined Australian exclusive economic zone. Senator BARTLETT-Going back to your statement, in paragraph 42 you inform Search and Rescue about any vessels that have been sighted and may be in difficulty or distress. Do you actually wait until a sighting? If your intelligence information was `We think this boat is CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1643 heading off and it's looking pretty dodgy,' would that be enough for you to pass it on to Search and Rescue or would you wait until you had more solid confirmation about it? Rear Adm. Bonser-We work on the threshold basis of there being some form of confirmed departure and some assessment that the vessel is actually overdue if we do not have any distinct indications of a vessel being in any form of distress or difficulty. Senator BARTLETT-So if you never got a confirmed report that it had departed, how did you come to the assessment that it was overdue and then pass that on? Rear Adm. Bonser-That was based on separate information that we received on 22 October that corroborated the original advice of a possible departure and confirmed for us that this vessel had most probably departed. On the basis of that we were able to assess that it was, indeed, overdue. Senator BARTLETT-So it got up to a higher degree of probability, in effect? Rear Adm. Bonser-It reached that threshold, yes. Senator BARTLETT-What is the threshold-80 per cent or 75 per cent? Rear Adm. Bonser-That we had a confirmed departure and that, indeed, the vessel was now overdue. Senator BARTLETT-You had a confirmed departure and confirmed information that it was heading our way? Rear Adm. Bonser-And on the basis of that that it was now overdue, yes. Senator BARTLETT-So that information came through AFP as well? Rear Adm. Bonser-Yes, it did-on 22 October. Senator BARTLETT-I noticed in your statement-in paragraph 43-that you said you got advice on the 22nd that it was overdue and you notified Search and Rescue. On the 23rd, you got advice from Australian Theatre Joint Intelligence Centre that a SIEV had sunk. Later that day, CNN-which, I presume, is the news network and not some Defence acronym I have not heard before-reported the sinking and the rescue of survivors. Was that the first time you or any of the Australian operations were aware of survivors being located-hearing it through CNN? Rear Adm. Bonser-Yes, it was. Senator BARTLETT-So we have got a comprehensive surveillance operation, the strongest we have ever had, and CNN could find out what was happening before we could? Rear Adm. Bonser-In this case the vessel clearly was not detected prior to its sinking. CERTAIN MARITIME INCIDENT CMI 1644 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Do you know why not? Rear Adm. Bonser-No, I do not. Senator FAULKNER-Have there been any inquiries at all-internal Commonwealth inquiries-into this issue since the sinking that you are aware of? Rear Adm. Bonser-I do not know of any. Senator BARTLETT-You have not been asked to provide information for any inquiry or report? Rear Adm. Bonser-No. Senator JACINTA COLLINS-Can you tell us where it actually sank? Rear Adm. Bonser-No; I do not know. I can only go off what I have seen in media reports that indicate it was somewhere between the Sunda Strait and perhaps 80 miles south of Sunda Strait, or 80 miles south of Java. Senator BARTLETT-Is any of that in the area under your surveillance? Eighty miles south would be in areas that you have under surveillance? Rear Adm. Bonser-I believe so, but that area was under surveillance from Defence and not Coastwatch. You would really have to talk to them about that. Senator BARTLETT-Surveillance by Defence through what? Rear Adm. Bonser-During Operation Relex. Senator BARTLETT-But how were they surveilling it? Rear Adm. Bonser-They had ships with helicopters and aircraft there. Senator JACINTA COLLINS-You are saying that Coastwatch was not surveilling that zone at that period of time? Rear Adm. Bonser-No-from 3 September, Coastwatch had moved away from Christmas Island. We were operating in the Arafura and Timor Sea approaches to Australia-the Kimberley and Arnhem Land coasts. Senator JACINTA COLLINS-Was that by formal arrangement? Rear Adm. Bonser-That was how we had coordinated the surveillance with Defence, which had the lead for the operation at that time. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1645 Senator FAULKNER-Are you aware that Admiral Smith provided additional information-a correction-to evidence presented at this committee? Rear Adm. Bonser-Yes, I am. Senator FAULKNER-Have you read the admiral's letter? Rear Adm. Bonser-I have now seen that, yes. Senator FAULKNER-Were you asked to provide any input for the admiral's letter? Rear Adm. Bonser-No, I was not. Senator FAULKNER-Or Coastwatch? Rear Adm. Bonser-No, other than to provide copies of operation summaries, which we provided to Maritime Command. Senator FAULKNER-So Coastwatch did provide some input for it? Rear Adm. Bonser-Coastwatch was asked if it could provide copies of our operation summaries for the period, which it did. Senator FAULKNER-When were you asked to do that? Rear Adm. Bonser-That was either late last week or early this week. Senator FAULKNER-Who asked you? Rear Adm. Bonser-Someone on the staff at Maritime Headquarters asked my chief of staff. Senator FAULKNER-Was it explained to your chief of staff why those operational summaries were required? Rear Adm. Bonser-I presume that it was because they were preparing some clarification of Admiral Smith's previous evidence, because prior to this-about a month ago-I called Admiral Smith's office, after I had seen a letter to the editor that he had written in the Canberra Times, to say that I thought there were some inconsistencies between his evidence and the flow of information as I knew it, and I thought they ought to check a range of other messages. Senator FAULKNER-Could you go through those inconsistencies with us in detail? Rear Adm. Bonser-The primary one was the comment on when the first time that notification of SIEVX occurred, which was not consistent with the flow of information as I knew it. I believe there was earlier information that was available. Senator FAULKNER-What earlier information? CERTAIN MARITIME INCIDENT CMI 1646 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-That is the information that was provided by Coastwatch from AFP on a variety of dates in October, including 20 October. That was relayed to Defence intelligence staff and repromulgated by them to the Defence operational authorities. Senator FAULKNER-You saw Admiral Smith's letter in the Canberra Times. That is what drew this matter to your attention? Rear Adm. Bonser-That triggered it for me, yes. Senator FAULKNER-Did you contact Admiral Smith directly? Rear Adm. Bonser-I tried to contact Admiral Smith. I got on to his office. He was overseas at the time, so I spoke to his chief staff officer (operations) and his chief of staff. I advised them that I thought that there were some inconsistencies with the flow of information as I knew it and that they ought to refer to a certain range of messages. I did not say what the inconsistencies were, just that there were inconsistencies, as I saw it, with respect to the flow of information. Senator FAULKNER-Was this communication done telephonically? Rear Adm. Bonser-That is correct. Senator FAULKNER-How did this matter progress in the lead-up to Admiral Smith's letter? Rear Adm. Bonser-I made that call on 16 April. Subsequently, on 22 April, I was speaking with Admiral Gates, who was running the CDF/Secretary task force and coordinating defence matters in this regard. I also brought it to his attention that I believed there were some inconsistencies. Senator FAULKNER-Was there any written communication there with Admiral Gates? Rear Adm. Bonser-No, there was not. Senator FAULKNER-Was that communication telephonic or face-to-face? Rear Adm. Bonser-That was face-to-face. Senator JACINTA COLLINS-On the 22nd? Rear Adm. Bonser-On 22 April. Senator FAULKNER-What happened then? Rear Adm. Bonser-The other person that I advised on 10 May was the Chief of Navy. I advised him that I had the view that there would be inconsistencies between Admiral Smith's evidence and mine when I appeared at the Senate committee, and he should be aware of that. He acknowledged that fact. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1647 Senator FAULKNER-Is it fair to say that the issue of concern here was that you might be asked questions today which Admiral Smith had canvassed, and that inconsistencies would become apparent? Rear Adm. Bonser-That is correct. I wanted to give people the courtesy of telling them that. Senator FAULKNER-So, in a sense, you were being proactive about it. You were concerned about what might happen at today's hearing, effectively, as opposed to any evidence you may have given in the past. Would that be right? Rear Adm. Bonser-No, I was not concerned about any evidence I may have given. Senator FAULKNER-What was the response on 16 April from Admiral Smith's staff? Rear Adm. Bonser-My message was acknowledged. Senator FAULKNER-It was just on the telephone, wasn't it? Rear Adm. Bonser-That is right, and I was thanked for the advice. Senator FAULKNER-On the telephone? Rear Adm. Bonser-Yes. Senator FAULKNER-There was nothing in writing with Admiral Gates? Again, it was a face-to-face conversation that you had with him? Rear Adm. Bonser-Yes, it was. Senator FAULKNER-Was the admiral able to indicate to you what sort of action he might take as a result of that? Rear Adm. Bonser-I think he just said to me that he would speak to Admiral Smith. Senator FAULKNER-Did you get any feedback from any of that communication? Rear Adm. Bonser-Not straightaway, no. Senator FAULKNER-What was the feedback? Rear Adm. Bonser-I received a phone call from Admiral Smith on 16 May to tell me that he was writing to the secretariat of the committee and providing clarifying information. He did not provide me with the detail of that information. CERTAIN MARITIME INCIDENT CMI 1648 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-He just indicated that he was going to clarify the statements. On 10 May, after your call to Admiral Gates, why did you determine it was necessary to talk to the Chief of Navy about this? Rear Adm. Bonser-I wanted to ensure that the Chief of Navy was aware that there may be inconsistency in the evidence and confirm that he was aware of it. Senator FAULKNER-But you were only concerned about Admiral Smith's evidence. Was there any other evidence you were concerned about? Rear Adm. Bonser-No. Senator FAULKNER-Just Admiral Smith's? Rear Adm. Bonser-Yes. Senator FAULKNER-Did you have a worry that speaking to Admiral Gates was not sufficient? Rear Adm. Bonser-No. I just wished to make sure that the Chief of Navy had been given the courtesy of being told, and I thought I should do it myself. Senator FAULKNER-Did the Chief of Navy indicate to you what action he might take as a result of that communication you had with him? Rear Adm. Bonser-I think his words to me were, `If there is any ambiguity, it needs to be clarified.' Senator FAULKNER-Did he indicate how that should be done? Rear Adm. Bonser-No, he did not. Senator FAULKNER-Admiral Smith contacted you on 16 May to indicate that he was taking the course of action that we are now aware of, which is the letter that he has written to the committee? Rear Adm. Bonser-Yes, that is correct. Senator FAULKNER-Were there any other contacts with either Defence personnel or others about this matter? Rear Adm. Bonser-Only in a discussion I had with Air Commodore Blackburn, who is Admiral Gates's deputy in the task force, where it was confirmed for me that the task force had received a copy of Admiral Smith's clarification. That occurred yesterday. Senator FAULKNER-So that happened just before today's hearing. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1649 Rear Adm. Bonser-That is correct. Senator FAULKNER-That is the sum total of it? Rear Adm. Bonser-That is the sum total. CHAIR-You have not been invited to have a cup of coffee at the Kurrajong Hotel? Rear Adm. Bonser-No, I have not been. Senator FAULKNER-There is always one outside, Rear Admiral! I am sorry, I was interrupting Senator Bartlett. Senator BARTLETT-Has Coastwatch's involvement in Relex meant a diversion of resources in terms of Coastwatch's overall activities or has a label been whacked over activities you are doing already and a different chain of command put on top of those? Rear Adm. Bonser-No. The rates of surveillance effort that have been needed to ensure levels of search security off north-western and northern Australia have meant that we were required to rebase one of our aircraft from Cairns to Darwin. That allowed us to provide the rates of effort in northern and north-western Australian approaches that would give us a degree of confidence in detecting SIEVs that may be approaching. Senator BARTLETT-That would mean, I presume, a lower level of surveillance for the northern Queensland region? Rear Adm. Bonser-It reduced the surveillance that we would normally have been doing from Torres Strait south to about Brisbane and, for a couple of months-from September through to December-we virtually had nothing between south of Brisbane and about Broome. Since then, we have been provided with some additional resources, our contractor has recruited additional air crew and we are regathering the most critical parts of the surveillance that we had to forgo in other areas. Senator BARTLETT-So you are regathering the most critical parts but you are not back to where you were before? Rear Adm. Bonser-Not in every area, no. Senator BARTLETT-Did you say `south from Brisbane to Broome'? Rear Adm. Bonser-From Brisbane south about to Broome between September and December last year. Senator BARTLETT-Sorry, I am not thinking of Broome as south of Brisbane. How does that work? Do you mean south from that line between them? Rear Adm. Bonser-Yes, that is correct. From Brisbane south about to Broome. CERTAIN MARITIME INCIDENT CMI 1650 SENATE-Select Wednesday, 22 May 2002 Senator BARTLETT-I get you. You mean `around'. That is a pretty large area. You are saying you had pretty much nothing in that area in that August to December period? Rear Adm. Bonser-From September to December, yes. Senator BARTLETT-And that would normally be surveillance for illegal fishing, predominantly, or drug smuggling-that sort of thing? Rear Adm. Bonser-For a range of our clients, different matters-environmental and fishing issues in the main, yes. Senator BARTLETT-And the northern Queensland area is obviously environmental as well- Rear Adm. Bonser-Environmental. Senator BARTLETT-But is there more smuggling through that area? Rear Adm. Bonser-There is fishing. There are no predictions as far as smuggling goes. There is quarantine. There are all of the client tasks. In general, our priority surveillance areas are the northern half of Australia, simply because of geography. Senator BARTLETT-I want to briefly go back to SIEVX and the rescue of it. From my memory of accounts of it, people when they were rescued had been in the water for at least 24 hours. You did not detect any radio communication amongst any boats or other aircraft in that period of time or even when they were rescued by fishing vessels? Did you pick up any communications indicating that they had been rescued? Rear Adm. Bonser-No. Coastwatch does not have that capability. Senator FAULKNER-No, but other agencies would have, wouldn't they? Rear Adm. Bonser-There are other agencies that do that and I have seen no indications that anything was intercepted of that nature. Senator JACINTA COLLINS-You mean you have seen no indications that anything was intercepted of that nature that was reported to Coastwatch? Rear Adm. Bonser-I have seen nothing at all that has been reported to Coastwatch. CHAIR-Have you requested of those other agencies a check to see if anything they retain indicates that messages or broadcasts were intercepted by them? Rear Adm. Bonser-No, I have not. Senator FAULKNER-How often are you in receipt, or are you in receipt, of DSD reports? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1651 Rear Adm. Bonser-We do receive DSD reports. Senator FAULKNER-But you are saying in relation to SIEVX that there was no such report from DSD or any other agency? Rear Adm. Bonser-That is correct. Senator FAULKNER-The only agency report that you received in relation to the whole SIEVX issue was the original intelligence from the AFP. That is as I understand the evidence that you have given us. Rear Adm. Bonser-The key indicators we received around the time of that vessel sailing were all from the AFP. Senator FAULKNER-I suppose it is the qualification of `key' that I am a little concerned about. Rear Adm. Bonser-There were no other indicators. Senator FAULKNER-There is a difference between `key' and `only'. I had the impression that you may have been suggesting that it was the only input. Rear Adm. Bonser-They are the only indicators that I know of. Senator FAULKNER-Just the AFP? Rear Adm. Bonser-Just the AFP ones, yes. Senator FAULKNER-Of course, there might well be more than one AFP input, mightn't there? It is one agency but possibly a number of inputs, isn't it? Rear Adm. Bonser-I do not know how their inputs work. You would have to ask them that. Senator FAULKNER-We may do that at some point, but the key point from this committee's examination of you here representing Coastwatch is that that was the only agency input. Rear Adm. Bonser-Yes. Senator JACINTA COLLINS-I am also trying to understand what would constitute a con- firmed departure. The information provided to us by Rear Admiral Smith refers to a number of reports from the Coastwatch CMSP opsum reports. However, when we get to the report of 20 October-Rear Admiral Smith does not tell us this; you actually told us this in your submission today-that report was passed on by a phone conversation. Why was a phone conversation deemed necessary in relation to that report, whereas the previous reports had simply been indi- cated as suspected departures or reported departures in your operational summaries? CERTAIN MARITIME INCIDENT CMI 1652 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-I am sorry, which phone calls are you talking about, Senator, phone calls coming into Coastwatch or out of Coastwatch? Senator JACINTA COLLINS-I am talking about phone conversations between Coastwatch, Australian Theatre and NORCOM. Rear Adm. Bonser-Making secure phone calls to those two intelligence staff was the normal way of passing on that information. I would have to go back to my statement, but- Senator JACINTA COLLINS-Let me put it to you this way so you understand where I am coming from. On 14 October SIEVX was referred to in one of your operational summaries. On 17 October it was referred to in one of the operational summaries. On 20 October it was referred to in one of your operational summaries-no, sorry, that was not an operational summary; on 20 October we get the report that there had been a departure with 400 passengers on an overcrowded, small ship. According to your evidence this morning, on that occasion that information was passed on by telephone rather than the earlier simple inclusion in an operational summary report. Why was that? Rear Adm. Bonser-There is no difference between any of the reporting. The normal practice for Coastwatch for advice that came in to us was for it to be passed by a secure phone call to the Australian Theatre Joint Intelligence Centre and Headquarters Northern Command. Senator FAULKNER-That is what you said in your opening statement. Senator JACINTA COLLINS-Yes. Rear Adm. Bonser-That is correct. That information is then normally passed on by them to the Defence commands involved in Operation Relex. In addition to that, Coastwatch includes a precis of the relevant information in its daily operations summary. Senator FAULKNER-Yes, but I think that, as a first step, Senator Collins is canvassing whether normal practice and procedure were followed in the instances that are referred to in relation to SIEVX. In paragraph 36 you outline the normal practice. That is fine and it is understood and appreciated. The next step along the way, before we get to where Senator Collins is going, is this question: was normal practice followed in relation to SIEVX? I appreciate that that may be the normal practice but did it happen? Rear Adm. Bonser-Yes, normal practice was followed. Senator JACINTA COLLINS-So, on an operational summary report that included the summary on 14 October about the potential departure of SIEVX, a phone call had been made to NORCOM on that occasion? Rear Adm. Bonser-I would assume so. I would have to go back and check that exactly- take it on notice-but that is the normal practice and I would have expected that that would have happened. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1653 Senator FAULKNER-That is the point of my question and of Senator Collins's questions. We are trying to go beyond what is a very helpful description from you of how your agency undertakes its normal activities. That is helpful. The issue goes to the individual instances that are outlined in Admiral Smith's clarifying statement of whether normal practice actually did apply. Your answer to Senator Collins's follow-up question was qualified. Rear Adm. Bonser-As far as the reports on SIEVX go, certainly on 20 and 22 October normal practice was followed. Senator JACINTA COLLINS-On 20 and 22 October. Rear Adm. Bonser-Yes. I would have to confirm the detail of previous reports but I would be quite confident that normal practice was followed. Senator JACINTA COLLINS-What concerns me, though, is that it has been put to us that there was no confirmed departure up until the 22nd. Rear Adm. Bonser-That is correct. Senator JACINTA COLLINS-Yet on 20 October we know that Coastwatch made a call and followed through with a report about intelligence-which is presently classified- indicating that a departure had occurred, that there were 400 people on a small ship and that some people had refused to embark because of the overcrowding. I want to know what constitutes a confirmed departure. If that much information cannot form the basis of some level of confirmation, what is required? Rear Adm. Bonser-That was the fifth report we had had in that particular month about that boat departing. Senator JACINTA COLLINS-But with that level of detail? Rear Adm. Bonser-We had similar detail on previous occasions. There is this great history of boats that depart, divert, go to other ports, do different things, perhaps break down-there is no real confirmation of the boat actually departing or the fact that it has left the archipelago. Senator JACINTA COLLINS-After this report of the 20th, from intelligence gathered on the 19th, there is nothing else reported until the 22nd. Rear Adm. Bonser-The only new information after that arrived on the 22nd, as far as I am aware. Senator JACINTA COLLINS-Do we know why that was the case? Rear Adm. Bonser-No. Coastwatch was not collecting the information, so I do not know. Senator JACINTA COLLINS-This is a question for the Federal Police, is it? CERTAIN MARITIME INCIDENT CMI 1654 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-I presume so. Senator FAULKNER-Yes, but you are the link between the AFP and Defence, aren't you? Rear Adm. Bonser-In this instance we were, yes. Senator FAULKNER-That is normal practice, though, isn't it? Rear Adm. Bonser-Yes. Senator FAULKNER-So it is not just this instance, is it? Rear Adm. Bonser-No, that is correct. AFP information normally comes through Coastwatch. Senator FAULKNER-So the AFP provides intelligence information to you. Normal practice for you is to pass it on to NORCOM and the Australian Theatre Joint Intelligence Centre. Is that what it is called? Rear Adm. Bonser-Yes. That is correct, Senator. Senator FAULKNER-In fact, you outline in your opening statement what NORCOM and the Australian Theatre Joint Intelligence Centre might do with that information. But I accept that is a process and that, at the end of the day, you are not responsible for that. Because of concerns about the SIEVX issue, would it be possible for you provide to the committee, in each of the instances outlined in Admiral Smith's letter, when the AFP intelligence material was received by Coastwatch, how and when it was provided by Coastwatch to NORCOM and Australian Theatre? Maybe that would help us. Senator JACINTA COLLINS-It does, except for one issue-that is, if the report that was passed on to Defence on 20 October was accurate, what further intelligence would you have expected to confirm it, other than a potential aerial surveillance of the ship? Rear Adm. Bonser-It goes back to the fact that this was the fifth report about a departure in that month, plus a range of previous ones in months prior to that, and the history of these boats being recorded as possibly departing and then having no arrivals. Senator FAULKNER-Sure, but you have a standard procedure for dealing with this. What you did in relation to SIEVX, you are saying to us, was consistent with your normal procedure. Rear Adm. Bonser-Yes, it was. Senator FAULKNER-So, in relation to my question, would it be possible-I do not expect you to have that material available with you today; I would understand it if you do not-for you to provide that information? It would be helpful. Would you take that on notice? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1655 Rear Adm. Bonser-I can but, if you wish, I can go through the time line for the 20th and the 22nd. Senator FAULKNER-That would be helpful. Rear Adm. Bonser-With respect to the information that we received on 20 October, that was received from the AFP at 9.30. It was passed on to the Australian Theatre Joint Intelligence Centre at 9.50, and we saw them disseminate that information by message at 10.00. At 10.05, we briefed Northern Command on that information by telephone and we saw them repeat that information to the Defence Operational Authority in message traffic that had a date/time group of 12.03. Senator FAULKNER-Thank you. Rear Adm. Bonser-Does that answer your question about the time line? Senator FAULKNER-Yes. Rear Adm. Bonser-On the 22nd, we received the information from AFP at 10.03. The assessment was made that the vessel was overdue and AFP were contacted about what information could or could not be conveyed. They requested a stay of the notification while they put together some suitable words. That was provided to us at 13.50. After they authorised release of that at 14.05, Coastwatch advised AusSAR using the words that were provided by AFP. Senator FAULKNER-Is there a standard addressee list for these opsums? Rear Adm. Bonser-Yes, there is. Senator FAULKNER-Could you just quickly outline what that is for us? Rear Adm. Bonser-The standard addressee list was from Coastwatch Canberra and it was sent to Commander Australian Theatre, Commander Joint Task Force 639, Maritime Commander Australia, Air Commander Australia, Commander Task Force 641, Commander Task Unit 646.2.2-which is the `P3 world'-Australian Theatre Joint Intelligence Centre, Task Group 639.0 and the 92 wing detachment at Learmonth, and for information to Australian Defence Headquarters Operations in Canberra, Headquarters Australian Theatre, Maritime Headquarters, Headquarters Air Command Air Operations and my Regional Coastwatch Base. Senator FAULKNER-Was there no input to the People Smuggling Task Force that was op- erating at the time? Rear Adm. Bonser-At the meetings of the People Smuggling Task Force, input was provided from all of the agencies. I did not see much of that. I presume some of it was provided outside of the meetings. At the meetings that I attended, I normally provided a brief overview of how many boats might be expected in the next period, but it was simply an overview based on the rather imprecise information we had at the time. CERTAIN MARITIME INCIDENT CMI 1656 SENATE-Select Wednesday, 22 May 2002 CHAIR-Just a moment ago you said that the AFP provided you with an earlier report and then asked you to belay the transmission of that until such time as they wrote the form of words in which they wanted to transmit the information that the SIEVX was overdue. As I took it down, I think there was about a three-hour delay between when they notified you and when they gave you the form of words in which they wanted to transmit that notification to all the authorities that you converse with on this. Is that a normal procedure-that the AFP prepare the form of words for a notification for an overdue vessel in that manner? Rear Adm. Bonser-It is when the information comes from perhaps a sensitive intelligence source and they have a requirement to protect the source or the specific nature of the information. CHAIR-So it is normal. Is it normal to delay three or so hours-if I am right about those calculations-in the notification of an overdue vessel? Is that normal? Rear Adm. Bonser-It can be in a situation like this, yes. What we are talking about here is a vessel that is overdue, and nothing more than that. CHAIR-I think it actually is closer to four hours than three hours, but it is somewhere in excess of three hours. But it is true that, if the vessel is in peril or if it has foundered, that amount of time could be quite critical, couldn't it, in recovering people who may be in the water? Rear Adm. Bonser-That might be the case if you know that the vessel is in peril or has foundered, but at this time all we knew was that the vessel was overdue. Senator BRANDIS-At the time that the report came through saying that the vessel was overdue, was any estimate made in that report as to how overdue the vessel was? Rear Adm. Bonser-No, only that we would have expected that it would have reached Australian waters by then. Senator BRANDIS-So it was not a matter of it being a day overdue, two or three days overdue or a matter of hours overdue; it was just an unqualified report in that respect. Rear Adm. Bonser-Yes, it was. CHAIR-So this was from an intelligence source; it was not from surveillance that we knew that it was overdue. Rear Adm. Bonser-That is correct. We received additional intelligence information that corroborated the previous report of the departure. That confirmed that we had most probably had a departure and, on the basis of that, that the boat should have probably arrived and was therefore overdue. CHAIR-But the intelligence sources would not know that it was overdue, would they, from events on land? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1657 Rear Adm. Bonser-I beg your indulgence; I think that goes to the nature of the information and matters in the national interest. It ought to be discussed in cabinet. Senator JACINTA COLLINS-Sorry, for my benefit, could you repeat what you did say? Rear Adm. Bonser-In what regard? Senator JACINTA COLLINS-Before the chair sought further information, what did you say about the advice on the 22nd that provided confirmation? Rear Adm. Bonser-The advice we received corroborated the previous report that a boat had possibly departed. Senator JACINTA COLLINS-So it was additional intelligence? Rear Adm. Bonser-It was additional information that confirmed for us that a boat had most probably departed and, on the basis of that, was therefore overdue. Senator JACINTA COLLINS-In part, that is the answer to the question I was about to go to before, which is: had the advice on the 20th been correct, what additional intelligence could you expect? You are now telling us that there is additional intelligence that you received on the 22nd confirming the departure. Rear Adm. Bonser-We cannot predict what the intelligence will be. We only know when it arrives that it exists. Senator FAULKNER-The chair's question, which you answered by indicating that there may be matters that concern the national interest, went to intelligence about the sinking, I thought-I may have misunderstood. CHAIR-My question was about, really, how an intelligence report-which is not surveillance but, I assume, some on-land intelligence capability-would know that a boat at sea was overdue. Senator FAULKNER-That is right. Rear Adm. Bonser-My answer remains the same. Senator FAULKNER-Do you know if the question of the SIEVX was actually discussed at the People Smuggling Task Force? Rear Adm. Bonser-I am aware that the subject was raised at the meeting on 22 October. I do not know what was said because I was not at the meeting; I was in Cairns on that day. Senator FAULKNER-So it was raised in the meeting of the 22nd? Rear Adm. Bonser-That is my understanding, yes. CERTAIN MARITIME INCIDENT CMI 1658 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-How are you aware of that? Rear Adm. Bonser-From other Customs attendees. Senator FAULKNER-And when did you become aware of that? Rear Adm. Bonser-I was advised while I was in Cairns that the additional information about the boat had arrived and that Coastwatch was going through the process of clearing the information with AFP, to provide that information to AusSAR. My chief of staff at the time advised me of that and also advised me that they were going to pass on that information at the IDC on that particular day. Senator FAULKNER-Was your chief of staff present at the IDC then? Rear Adm. Bonser-He would have been present on that day along with the DCEO of Customs, Mr Drury. Senator FAULKNER-Are you aware of SIEVX being raised at the IDC before the 22nd? Rear Adm. Bonser-No, I am not aware of that at all. Senator JACINTA COLLINS-What time was the meeting of the IDC on the 22nd? Rear Adm. Bonser-I do not know the timing for that day. I was not at the meeting. Senator FAULKNER-So when it is discussed on the 22nd, the status of SIEVX is `overdue', not `sunk'? Rear Adm. Bonser-I presume that is the case. Senator FAULKNER-I am presuming that, too-that is why I am asking you. Rear Adm. Bonser-I would assume so. I was not at the meeting. Senator FAULKNER-No, but you know it was discussed. But you do not know whether SIEVX was discussed at the IDC prior to the 22nd. Rear Adm. Bonser-As far as I know, it was not discussed prior to that date. Senator FAULKNER-Do you know whether it was discussed at any meeting subsequent to the one you told us about on the 22nd? For example, was the sinking discussed at the IDC? Rear Adm. Bonser-I do not recall it, no. Senator FAULKNER-Do you know who raised it at the meeting of the 22nd? It was not Coastwatch? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1659 Rear Adm. Bonser-I presume it was the Customs-Coastwatch members advising the IDC that they were going through the process of telling AusSAR. Senator FAULKNER-I think this is relevant to our inquiry, so would you be able to take it on notice for me please as to when any matters in relation to SIEVX were discussed at the People Smuggling Task Force and what the role of Coastwatch was in those discussions-they may have been generated, for example, by Coastwatch or they may not. If that detail could be provided for any matters relating to SIEVX, I would appreciate it. You will obviously need to go to the officers who represented your organisation at the time. Rear Adm. Bonser-I will be able to provide only the information that was presented by Coastwatch or Customs, because I was not at any of the meetings. Senator FAULKNER-But Coastwatch was represented at the meetings, wasn't it? Rear Adm. Bonser-Yes, it was. Senator FAULKNER-I appreciate that you would have to go to the Coastwatch representatives. I understand that you personally were not there. That is why I think it is better to deal with this, if you would not mind, by taking it on notice-understanding that you do not have direct knowledge of it, although you do have some indirect knowledge of it because you have been able to help us with the meeting on the 22nd and the fact that SIEVX was discussed at the People Smuggling Task Force on the 22nd. Rear Adm. Bonser-I will take it on notice and provide what I can. Senator JACINTA COLLINS-I have one further issue that I would ask you to take on notice. You say at paragraph 38 of your opening statement that the full detail of the advice of 20 October is classified. I would like to request that this advice be declassified for this committee. I would like to know if there was similar advice in any of the earlier reports and whether that too is classified and can be declassified. Rear Adm. Bonser-As far as I am aware, all of the advice is classified. I cannot declassify it because it does not originate with me. It would have to go back to the originating authorities to declassify the information. Senator JACINTA COLLINS-The Federal Police? Rear Adm. Bonser-In this instance, yes. Senator BARTLETT-I have two more questions, which I think will wrap up my interest in this. CHAIR-I must say that you are taking a very long time to ask your questions, Senator Bartlett. CERTAIN MARITIME INCIDENT CMI 1660 SENATE-Select Wednesday, 22 May 2002 Senator BARTLETT-I keep getting intruded upon. Just going back one last time to 22 October, Rear Admiral Bonser, you advised Search and Rescue that the vessel was overdue because SIEVX met the criteria that you had confirmation of departure dates and it was known to be overdue. According to Admiral Smith's information, you notified via an opsum to Admiral Smith that the vessel was overdue possibly due to poor condition of the boat and the large numbers on board. The Rescue Coordination Centre also independently reported to Admiral Smith that the vessel was overdue. But it does not seem that Search and Rescue or anybody else actually requested anybody to do anything about it, to go and look for it. They did not ask you to go and look at all to see where it was and whether it was in difficulty? Rear Adm. Bonser-What Search and Rescue then implemented you would have to ask them but, as far as Coastwatch are concerned, we were still conducting all of the surveillance that we had had in place which was specifically dedicated to finding just those boats. Senator BARTLETT-But they did not give you any specific request or direction or anything to go and look over in this area? Based on your earlier evidence, that is not necessarily where you go anyway. Rear Adm. Bonser-No. Senator BARTLETT-And they did not seem to do so with the Relex people either. You have said before that, as far as you are aware, there has been no report or even any form of informal investigation into this situation. This was a circumstance where admittedly it was probably in international waters and closer to Indonesia than here, but we have been involved in fairly extensive efforts to rescue a single yachtsman or yachtswoman a huge number of kilometres from the Australian coast. We have had a few fishermen drown at sea and had coronial inquests and Senate inquiries when there were three or so. We have had massive inquiries when we have had two or three people die on the Sydney to Hobart yacht race. All of those circumstances have their own specifics and I am not trying to say they are all the same thing, but we have an incident in which 353 people drown and nobody has even made a general comment about whether there is some way we can perhaps stop this happening again or whether there is anything we can do better. Rear Adm. Bonser-I have seen nothing about that. CHAIR-That is equivalent to about one jumbo jet going down with a full passenger load. Senator BRANDIS-Those questions assume that Australia has responsibility for the problem. We have yet to hear a syllable of evidence to suggest that we did have responsibility for the problem. Rear Adm. Bonser-I have certainly seen nothing to indicate that. Senator JACINTA COLLINS-I did not hear a question that suggested there had been an Australian investigation. I think the question was whether there had been any investigation. Senator FAULKNER-Is it true that there was input to Coastwatch from the AFP that effectively detailed, if you like, the size and the state of SIEVX? Would that be fair to say? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1661 Rear Adm. Bonser-We knew that it was small and overcrowded. Senator FAULKNER-And by `overcrowded' would that mean that you would know that there might be around 400 passengers embarked? Rear Adm. Bonser-We had an indication of the numbers, yes. Senator FAULKNER-Were you aware that some passengers were not able or were unwilling to be boarded? Rear Adm. Bonser-I understand that there was an indication in some of the advice that that was the case, that people either had not got on or had got off the vessel. Senator FAULKNER-So there is no doubt, effectively, that you have got intelligence inputs here basically indicating that the vessel is barely seaworthy. Would that be right? Rear Adm. Bonser-We did not know that because we had not seen it. What we knew was that this vessel was reported as being small and overcrowded, and that was the information we advised to all of the relevant operational authorities. Senator FAULKNER-Does the surveillance task change in that sort of situation, where there might be a possible safety of life at sea situation? Rear Adm. Bonser-In this case, with, as I have said, the imprecise information about departures-the departure after departure that does not eventuate, the comprehensive surveillance that was in place out there and the fact that we did not have a confirmation of the departure and that the vessel was not yet overdue-no. Senator FAULKNER-You know the figure of the people who have embarked on it, so one assumes that it must be pretty close to going if there is that number of people who have em- barked? Rear Adm. Bonser-But that number is not inconsistent with previous boats, either. Senator FAULKNER-Yes, but if there is a possible safety of life at sea situation-an unseaworthy vessel that is massively overcrowded and the like-and it is ready to go or about ready to go, does that change the surveillance task that you have? Rear Adm. Bonser-It would not have changed our surveillance task, because we were not conducting surveillance in that area. Senator JACINTA COLLINS-Let us say you had been. Let us say Coastwatch had been directly responsible for the surveillance in the zone, would Coastwatch have instigated surveillance after notification of the departure on the 20th? Rear Adm. Bonser-One of Coastwatch's tasks is to conduct surveillance to detect all these boats before they reach Australia. CERTAIN MARITIME INCIDENT CMI 1662 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-So the answer is yes? Rear Adm. Bonser-We would have done that, irrespective. Senator JACINTA COLLINS-Of the safety of life at sea situation? Rear Adm. Bonser-Yes, which was what was happening here already. A comprehensive surveillance pattern was in place doing nothing but looking for these boats. Senator FAULKNER-But it is not just a small, overcrowded, unseaworthy vessel, is it? It is full of SUNCs, as these people are described-an unhappy acronym: suspected unlawful noncitizens. That makes a difference too, doesn't it? Rear Adm. Bonser-All of these boats are full of people. Senator FAULKNER-Yes, but I am interested in how that affects the surveillance task. Rear Adm. Bonser-The surveillance task was in place looking for all of these boats throughout. Senator JACINTA COLLINS-But what we have from Admiral Smith indicates that surveillance at the time was not as comprehensive as you seem to be indicating. Surveillance was brought back closer to the contiguous zone, as I understand Admiral Smith's report-it was brought right back to the immediate area around Christmas Island. Rear Adm. Bonser-I do not know about that, Senator. I think it is something you would have to address to Admiral Smith. Senator BRANDIS-I would like to ask a question about the surveillance area as well. Are you aware of how close to the southernmost reach of the Sunda Strait the limit of Coastwatch surveillance was at this period? Rear Adm. Bonser-Coastwatch was not within 1,000 miles of Sunda Strait. Senator BRANDIS-Have you read Mr Kevin's evidence? Mr Kevin's conjectures that the vessel foundered some hundreds of miles south of the southernmost point of the Sunda Strait. Are you familiar with that evidence? Rear Adm. Bonser-I am familiar with the evidence, yes. Senator BRANDIS-Did the limit of the Coastwatch surveillance area ever reach even the point at which Mr Kevin conjectures that the vessel foundered? Rear Adm. Bonser-No, Coastwatch did not, because we were 1,000 miles away to the east. Defence was conducting surveillance around Christmas Island. Senator BRANDIS-Are you aware of the limit of the Defence surveillance? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1663 Rear Adm. Bonser-It was about 30 miles south of Indonesian territory. Senator BRANDIS-Thank you. CHAIR-Where is that, for my benefit, in relation to Mr Kevin's conclusion of where the boat foundered? Rear Adm. Bonser-It would be within the surveillance area. CHAIR-It would be within the surveillance area? Rear Adm. Bonser-Yes, it would. Senator JACINTA COLLINS-But, Rear Admiral, the point I was coming to a moment ago was that we were advised by Admiral Smith that on 19 October-when this vessel departed Indonesia and foundered, he claims, in the Sunda Strait-air surveillance assets and Navy service units were conducting layered surveillance operations and responding to SIEVs close to Christmas and Ashmore islands. So comprehensive surveillance was not occurring at that time; it had been pulled back close to Christmas and Ashmore islands. From what I understand you to be saying, that is not ordinarily the case. Rear Adm. Bonser-I was talking about the overall surveillance that was in place right across Northern Australia, which was, in my experience, the most comprehensive that I have ever seen. What was happening out at Christmas Island was purely defence assets; you would really have to ask them about that. Senator JACINTA COLLINS-I am also trying to understand what happens with the flow of communication, because pre these arrangements it would have been an exclusively Coastwatch situation: Coastwatch gets the report, Coastwatch is alerted possibly to a safety of life at sea scenario, Coastwatch has its comprehensive aerial surveillance in place and would anticipate identifying if such a ship were foundering in that region. But in this scenario we have Coastwatch passing that information on to Defence, Defence saying, `No, our assets are busy elsewhere,' and no aerial surveillance occurring, as it seems. Rear Adm. Bonser-I do not know about that; that is something you would have to ask those that were conducting the surveillance. Senator FAULKNER-Who would make the decision? Accepting that this is outside the area, under the auspices of Operation Relex, that Coastwatch has surveillance responsibilities for-which is the point you make, isn't it? Rear Adm. Bonser-Yes. Senator FAULKNER-Just accepting that, who would make the decision in Defence, as you understand it-based on the material that you provide, the AFP reports and the like-that surveillance of this particular SIEVX is warranted? Where would that decision be made? Would it be made at NORCOM; would it be made elsewhere? Can you assist us with that at all? CERTAIN MARITIME INCIDENT CMI 1664 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-I would expect that it would be made in that operational chain of command: between the Theatre Command, Northern Command and indeed the assets in location. Senator FAULKNER-Once you pass on the intelligence material you have available, is there no follow-up from Coastwatch? Rear Adm. Bonser-Only to continue to provide any additional information that comes to us. Senator FAULKNER-You do not get any feedback from Defence as to whether they decide to undertake any particular level of surveillance of the identified SIEV? Rear Adm. Bonser-Sorry? Senator FAULKNER-If Defence decided that they were going to undertake surveillance of SIEVX, for example, would Coastwatch in the normal course of events have been notified? Rear Adm. Bonser-Probably not. We would have had information that they were conduct- ing the surveillance in that general area with the assets that were available. We were not seeing the actual detail of the surveillance patterns, not that level of detail. Senator FAULKNER-Can I ask you this: do you think, in relation to SIEVX, that there were process failures in terms of the role of Australian agencies? I appreciate you can only make a comment from where you sit and it is in that context I ask you the question. Rear Adm. Bonser-From what I have seen and from the information that has been passed on I would say no. All of the information has been handled properly and passed on. Senator FAULKNER-So you think it is perfectly reasonable that Australian authorities should learn about the sinking of SIEVX from CNN? You are quite satisfied that that is acceptable? Rear Adm. Bonser-If that is the only information you get, then that is all you have. Senator FAULKNER-But it is not the only information we have got in this situation, is it? Rear Adm. Bonser-That is the only information that we have about the vessel sinking. Senator FAULKNER-It might be the only information at that time about the vessel sinking, but it is not the only information you have about the vessel leaving. It is in that context I asked the question. I probably should clarify it. My question does not go specifically to the sinking of SIEVX; it is the whole exercise from the time 400 people embarked and the boat left Indonesia. If the government decided to inquire further into the events surrounding the sinking of SIEVX, given your extensive responsibilities in relation to Coastwatch, could you identify any process failures in relation to this particular SIEV? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1665 Rear Adm. Bonser-I cannot see any course of action that any Australian authority could have taken that would have prevented the sinking of the vessel. Senator FAULKNER-Can you think of a situation where Australian agencies should have had a great more knowledge and detail about what occurred with this SIEV after it left Indonesian shores? Rear Adm. Bonser-No, I cannot. Senator FAULKNER-Can you draw a distinction between the state of knowledge that agencies had of that SIEV and a range of the other SIEVs-some of this you have dealt with in your opening statements-particularly the number of SIEVs. I am using SIEVs 1 to 12. Rear Adm. Bonser-The information is remarkably similar about all of the vessels, in particular the on again off again nature of the departures. The only thing that was different about this vessel was that we had information at the last report of the possible departure that it was small and overcrowded. Senator FAULKNER-You have not been asked since the sinking of the SIEV, in your role at Coastwatch, for any investigation or inquiry into those events at all? Rear Adm. Bonser-No, I have not. Senator FAULKNER-Does that surprise you? Rear Adm. Bonser-No. Senator JACINTA COLLINS-Let me take you to one area where there are issues of a process nature regarding the reporting, and that is your statement at 42: In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress. You are probably aware that the evidence we had from AusSAR was that they were never advised that there was a vessel in distress, even on 20 October. How could you get into that situation? Rear Adm. Bonser-Because there was nothing to indicate there was a vessel in distress. Senator JACINTA COLLINS-You said that you advise AusSAR, in the normal course of events, when a vessel may be in difficulty or in distress, and you did so on this occasion. Rear Adm. Bonser-What we did on this occasion was to advise AusSAR that there was a vessel that was potentially overdue. Senator JACINTA COLLINS-Your statement at 42 says: CERTAIN MARITIME INCIDENT CMI 1666 SENATE-Select Wednesday, 22 May 2002 In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress. And you did this on this occasion. You said that SIEVX met this criteria. Rear Adm. Bonser-SIEVX was not a vessel that had been sighted and was observed to be in difficulty and distress. When Coastwatch has confirmation of the departure date of a SIEV, and then when it is known that it is overdue, Coastwatch provides that information to AusSAR. After we had received the additional information on 22 October, SIEVX met that criteria, and that was why Coastwatch contacted AusSAR and advised them that there was a vessel that was potentially overdue. Senator JACINTA COLLINS-This is where there is a lack of clarity. You are saying that you advise AusSAR when a vessel may be in difficulty or distress. That is why you advise AusSAR, isn't it? Rear Adm. Bonser-When we sight a vessel that may be in difficulty or distress, yes. Senator JACINTA COLLINS-So, in this case, you had confirmation of departure and you knew it was overdue. Presumably you felt that met the criteria of probably being in difficulty or distress, and so you would advise AusSAR? Rear Adm. Bonser-No. That met the criteria for a vessel being overdue, and so we advised AusSAR. Senator BRANDIS-Is this the situation? There are different categories of criteria that trigger the advice to AusSAR: one is the sighting of a vessel in difficulty or distress; and another and independent criterion is that a vessel is overdue. Rear Adm. Bonser-That is correct, and they are independent. Senator BRANDIS-In this case, it was the second and not the first of those two categories which triggered your advice to AusSAR. It is as simple as that, isn't it? Rear Adm. Bonser-That is correct. Senator JACINTA COLLINS-Then, when you get to the first of those criteria, what action is AusSAR meant to take? My question is: what is the point of advising AusSAR? Rear Adm. Bonser-And that is for which criteria, Senator? Senator JACINTA COLLINS-The first, the `overdue'. Rear Adm. Bonser-For an overdue vessel-and you would have to clarify this with AusSAR-my understanding is that they would issue a broadcast alert, asking shipping to keep a lookout for a vessel that was overdue. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1667 Senator JACINTA COLLINS-They tell us they only do that when they have information that there is difficulty or distress. They are not aware of this two-level criterion that Senator Brandis has put to you. Senator BRANDIS-No, not two-level criterion; two separate criteria. Senator JACINTA COLLINS-Okay, two different criteria. It seems that AusSAR is not aware of these criteria. Rear Adm. Bonser-I do not know about that. You would have to clarify that with them. Senator JACINTA COLLINS-I suggest that you look at the evidence they gave this committee. Their answer for not responding to a report from Coastwatch is that there was no indication of distress. Rear Adm. Bonser-And we did not tell them that there was an indication of distress. We provided the information to them that there was an overdue vessel. Senator JACINTA COLLINS-What I am asking you is this: if it has this other criteria, which is vessel overdue, what is your understanding of what AusSAR does with it? What is the point of reporting overdue to them, if all they simply say is `We've done nothing, because there's no indication of distress'? Why bother with this criterion? Rear Adm. Bonser-Because that has been a standard procedure and, in the past, there have been broadcasts issued asking for vessels to keep a lookout for overdue vessels. Senator JACINTA COLLINS-That is additional information that was not provided to us from AusSAR. We need to get to the bottom of why they did not do that on this occasion, because they did not-and we do not know why they did not, but we do know that many lives were lost. Senator BRANDIS-I think it is clear that there was never a time at which this vessel was under surveillance. Rear Adm. Bonser-That is correct. Senator BRANDIS-There was never a time at which any report was received by Coastwatch that the vessel was in difficulty or distress. Rear Adm. Bonser-That is correct. Senator BRANDIS-There was never a definitive piece of information conveyed that the vessel had, in fact, definitely departed Indonesian shores; there were merely intelligence reports that the vessel may have departed Indonesian shores. Rear Adm. Bonser-That is correct. CERTAIN MARITIME INCIDENT CMI 1668 SENATE-Select Wednesday, 22 May 2002 Senator BRANDIS-On the assumption that this vessel may have departed Indonesian shores on a given date, there was a report that the vessel was overdue, and that report came to you? Rear Adm. Bonser-Yes, it did. Senator BRANDIS-A report was received that the vessel had sunk, which report was received after that event had happened. Rear Adm. Bonser-Yes, that is correct. Senator BRANDIS-That was also a report in the public media on the international news programs. Rear Adm. Bonser-Yes, it was-in addition to the report we received on 23 October from the Australian Theatre Joint Intelligence Centre. Senator BRANDIS-As far as I can follow your evidence, there was never a time prior to the sinking of the vessel that Coastwatch received any information causing it to arrive at a conclusion that the vessel was in peril or distressed. Rear Adm. Bonser-That is correct. Senator BRANDIS-That is what I thought. Thank you. Senator BARTLETT-Can I clarify that. As I heard your evidence, you never got confirmation that the vessel had departed. Rear Adm. Bonser-Could you clarify your question? I am not sure I understand. Senator BARTLETT-My understanding of the answers you gave part way through there is that you had a range of intelligence reports of possible departures here and there, but there was no confirmed sighting or confirmation of a departure date. Rear Adm. Bonser-The only time we received information that corroborated a departure and indicated to us that this vessel had probably departed and could therefore be considered overdue was when we received information on 22 October. Senator BARTLETT-You are saying `probably'. What is the difference between probability and confirmation? Rear Adm. Bonser-We could not tell whether the vessels had really left or not until they turned up. Senator BARTLETT-You said in your opening statement that you had told AusSAR about the confirmation of departure. Was it confirmed or wasn't it? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1669 Rear Adm. Bonser-That was the best indication we had of a confirmation of a departure and, on the basis of that, we assessed that the vessel was overdue and advised AusSAR accordingly. I cannot really go into any further detail in public about the nature of that information or why it led us to that belief. Senator BARTLETT-We can pursue that with the AFP. I am not trying to divulge state secrets, I am just trying to get an idea of what constitutes confirmation and when probable departure becomes confirmed departure. Rear Adm. Bonser-I think the nature of the information that was provided on the 22nd, if provided in camera, would make that clear. CHAIR-It may be that the committee would want to move in camera, but that is not a question we need to address just yet. I need to be clear in my head, because I am a little con- fused about one or two of the points. My understanding, based on the corrected evidence of Admiral Smith, is that SIEVX departed Sumatra, which is a small coastal town in west Java, and that was the last place it touched on its ill-fated voyage. After that, it sailed on and foun- dered somewhere. The evidence that you have given us and reiterated a number of times-and I thank you for that-is that you received information on 22 October that this vessel may be overdue. That information was received from the AFP, as I recall you saying. I went through this before. The sole source of information that the vessel was overdue was the AFP, as far as Australia is concerned? Rear Adm. Bonser-That is correct. CHAIR-You first learnt that the vessel was overdue from the AFP? Rear Adm. Bonser-Yes, and that assessment was made based on the information we received from the AFP on 22 October. CHAIR-Did you receive information from the AFP that the vessel was overdue or that the vessel had departed at a certain time and then, by your own calculations, conclude that it was overdue? Rear Adm. Bonser-It was both. Part of the information and the detail of the information would help clarify that. There was an assessment that it was overdue, and we agreed with that assessment. CHAIR-That is the point I want to be clear about. The AFP advised you that the vessel was overdue and, when you did your sums about where it was likely to be, you confirmed in your mind that, `Yes, obviously it is overdue.' Is that how it went? Rear Adm. Bonser-That is correct, Senator. CHAIR-The point I am concerned about is that the originating idea that the vessel was overdue came to you. You did not calculate that or deduct that from other information-from raw material. You got that conclusion, you checked it and then reaffirmed that it was overdue. CERTAIN MARITIME INCIDENT CMI 1670 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-That is correct, Senator. CHAIR-And then you were asked to wait before that knowledge was broadcast so that it could be put in an acceptable form of reporting by the AFP? Rear Adm. Bonser-Yes. CHAIR-You will tell me if I am intruding into areas that are sensitive and ought to be protected, which `may' be matters for us to consider in camera when I ask these next questions. The advice that the Australian Federal Police gave you after this interregnum of nearly four hours from the initial report about what you may notify as an overdue vessel was essentially the same advice, in the same terms, that they had given you earlier or was it advice that was not in the same terms? Rear Adm. Bonser-It was not in the same words-because of the nature of the original in- formation-but it was in the same terms, that this vessel was overdue. The original information inferred that same conclusion. CHAIR-All right. The RAAF were flying surveillance in the area where Mr Kevin concluded SIEVX sank. Were they flying surveillance at the time that this vessel may have been in that vicinity? Rear Adm. Bonser-I do not know. I do not know whether it was ever in that vicinity or, if so, when. CHAIR-You are aware though, as you said in your opening statement, of what Mr Kevin has said, you have read his evidence before us and you have doubtlessly seen the maps or the charts that he has presented to us and would therefore know where his hypothesis leads in terms of where he believes the vessel sank-that is, in an air surveillance area of Australia. Rear Adm. Bonser-Yes, it would be, Senator. CHAIR-For the ADF? Rear Adm. Bonser-Yes, if that is where the vessel sank. CHAIR-Do you happen to know whether a PC Orion, if that was the type of aircraft used, is equipped with life rafts and things that it could drop from the air if it comes across a SOLAS situation? Rear Adm. Bonser-I know they can be, Senator. CHAIR-You do not know whether the operating aircraft in the area were, though? Rear Adm. Bonser-I do not know the answer to that question. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1671 CHAIR-Maybe it is a question we should ask Defence. How long after 22 October, when you had broadcast this information, did CNN report that this vessel had in fact sunk? Rear Adm. Bonser-It was the following day, 23 October. That was the same day that we received advice from the Joint Intelligence Centre that there had been a report that a vessel had sunk. CHAIR-The report that the Joint Intelligence Centre was referring to was the CNN report or another report? Rear Adm. Bonser-I do not know. We received two separate reports: one from the Joint Intelligence Centre and we also saw what was on CNN. CHAIR-You actually saw it on the screen? Rear Adm. Bonser-I did not, but I heard about it. CHAIR-Officers of your agency saw it on the screen? Rear Adm. Bonser-Yes. Senator JACINTA COLLINS-But you do not know that they were separate reports? Rear Adm. Bonser-No, I do not know what the source of the Joint Intelligence Centre report was. CHAIR-There is one other detail but I am not quite sure whether Senator Faulkner-who is not here, otherwise I would have asked him rather than ask you-asked you this question before. You knew from the intelligence reports that this was an overcrowded vessel and that it was a small vessel. Did you also know that it was leaky? Did you know what the condition of it was? Rear Adm. Bonser-No, we did not. I believe that is information that only came out after the event and that a range of that has become confused with what might have been original information. Senator JACINTA COLLINS-Which is why a declassified report might be helpful. CHAIR-Taking you back to your remarks in your opening statement about reviewing the Kevin hypothesis, for want of a better description, and Mr Kevin's evidence, has Coastwatch done its own reconstruction of the events to test that hypothesis? Rear Adm. Bonser-We have looked at the information but it is so imprecise that you really cannot reconstruct much from it, I would have to say. CHAIR-So you have done some sort of exercise. CERTAIN MARITIME INCIDENT CMI 1672 SENATE-Select Wednesday, 22 May 2002 Rear Adm. Bonser-We have plotted estimated times of departure, possible speeds, different diversions and where the vessel may have gone but it is very difficult to reconstruct. The best we have been able to work out is that it was somewhere between the Sunda Strait and perhaps about 80 miles south of it that this vessel unfortunately sank, but we have not been able to determine exactly where. CHAIR-Calculating wind speeds, drifts and currents and plotting where boats might be and those sorts of things would be an expertise of Coastwatch, wouldn't it? Rear Adm. Bonser-We have some skills in it, but the experts are the search and rescue authority. CHAIR-You have presented to us that the analysis you have conducted was, in a way, a back of the envelope sort of exercise, or that is the impression I have. Was it an exercise like that, or was it a more considered sit down with the charts, the calculators and the navigational instruments to try to work it out? Was it a fairly full-on exercise? Rear Adm. Bonser-We certainly would have looked at a chart, at estimated times of departure and at how far a vessel might have gone at certain speeds, but to get any precise information even of the courses that the vessel might have taken would have been pure guesstimation. We just had no detail about what the vessel did, or might have done, after it allegedly sailed to indicate even what direction it went in. CHAIR-And the intelligence reports did not provide a clue to you as to that. Rear Adm. Bonser-All we had was that there was a possible departure on a date, and I think that was the fifth possible departure that month. We had no idea whether the vessel was actually departing the archipelago or going somewhere else in the archipelago. CHAIR-Does this exercise that you have just described appear in writing anywhere? Rear Adm. Bonser-I do not know that we actually have any of that recorded. We would have sat down with the chart, but it may well have been rubbed off again by now. CHAIR-Can you check to see if you have anything? Rear Adm. Bonser-I can check. CHAIR-You leave me with a terrible void in trying to package this. I understand and respect what you say about there being so many variables here and how do you know where it may have foundered. If you have no information after it leaves port, the fact that another agency can tell you that it is overdue suggests that another agency may have some of that information. So I will give some thought as to whether or not we might want to go in camera on some of that evidence. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1673 Senator MASON-Admiral, I think you said, in response to questions from my colleagues, that you are familiar with Mr Kevin's evidence on Hansard and perhaps also some of his opinion pieces. Is that correct? Rear Adm. Bonser-Yes, I have read some of them. Senator MASON-I will quickly put some of them to you in a second. Let us get a bit of context to our discussion this afternoon. On page 1327 of Hansard of 1 May 2002, Mr Kevin says-and this is the nub of the issue: There is clear public knowledge now from Australian official sources that there was some Australian official foreknowl- edge of the circumstances that led to the deaths of these 353 human beings. This cries out for explanation and account- ability. And on page 1325, he says: Coastwatch Australia knew from an intelligence source when this boat had left, where from, its likely speed and that it was heading for Christmas Island. Are you across that information? Rear Adm. Bonser-Yes. Senator MASON-They are the claims that Mr Kevin in effect makes as they relate to Coastwatch. The nature of the information has been discussed this afternoon, and I think Senator Bartlett referred to paragraph 32 of your opening statement, which reads: Information in relation to possible boat departures from Indonesia is often imprecise and subject to frequent change. It is not unusual for a vessel's projected departure dates and times to change on an almost daily basis over a period of days or even weeks. I think you gave evidence that on five different occasions there were intelligence reports that SIEVX was about to depart. Is that correct? Rear Adm. Bonser-That is correct-either about to depart or had departed. That was just in the month of October. Senator MASON-In paragraph 3 of Admiral Smith's statement of clarification-I think you know what that is-dated 17 May, he says: The intelligence reporting from Coastwatch was used as indicators of a possible SIEV arrival in an area within a probable time window. Do you agree with that? Rear Adm. Bonser-Yes. That is in fact the way that Coastwatch used the information as well-as indicators rather than any firm navigation evidence that a ship was in a particular position. CERTAIN MARITIME INCIDENT CMI 1674 SENATE-Select Wednesday, 22 May 2002 Senator MASON-You have also given evidence-in answer to a question by Senator Brandis, I think-that this vessel was never under observation by the ADF or Coastwatch. Is that correct as well? Rear Adm. Bonser-That is correct. Senator MASON-I will briefly put some of Mr Kevin's assertions to you. This is from the Canberra Times opinion page, page 11, on 21 May. He writes: So it's a reasonable inference from Operation Relex practice that timely intelligence reached Canberra on October 18 or 19 saying that SIEV X had left Sumatra on October 18 bound for Christmas Island and that it was a 19-metre fishing boat carrying around 400 people. Is that right? Rear Adm. Bonser-No. We did not get an indicator-well, we got the fifth indicator that the boat had departed somewhere on the 19th. We received that on the 20th. We certainly did not know the dimensions of the boat. Senator MASON-So what would you say to the implication or insinuation that Coastwatch is responsible or partly responsible for the deaths of these 353 people? Rear Adm. Bonser-I find it personally affronting. Senator MASON-That is part of the assertion that is being made here by Mr Kevin. Rear Adm. Bonser-I completely disagree with it. CHAIR-Is that assertion specifically made? Senator JACINTA COLLINS-I am not sure that is a fair representation of the assertions either. Senator MASON-I think it is. CHAIR-It is a fairytale. Senator MASON-Taking it to its conclusion, it is. Senator JACINTA COLLINS-The AFP are an Australian agency, and they received the information on the 19th. Senator MASON-We can get to them. I am happy to examine- Senator JACINTA COLLINS-But a moment ago you represented it as Coastwatch. Senator MASON-No, I said Coastwatch and the ADF. I am aware of what I am saying. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1675 Senator JACINTA COLLINS-We know you are aware of what you are saying. You are misrepresenting the case. Senator MASON-No, I am not misrepresenting it at all. We can debate this later. I am quite happy to call anybody you want and we will examine them as well and do that and the truth will come out. Senator FAULKNER-You were going very well. Just keep your focus. Senator JACINTA COLLINS-Get back on track. Senator MASON-Thank you. So you would say that the assertions made by Mr Kevin as they relate to Coastwatch are rubbish? Senator JACINTA COLLINS-Which assertion is that? Rear Adm. Bonser-I disagree with them. Senator MASON-Thank you. Senator FAULKNER-That wouldn't be a leading question. Senator MASON-The answer has come out and the answer will do me fine. Can we move on to a slightly different topic, as we have got the answers we needed before about Operation Relex. The Labor Party, the opposition, has said-and the insinuation again has been made- that in some cases the Navy- Senator JACINTA COLLINS-Made by whom? Senator MASON-Hold on and wait until you have heard the question. Senator JACINTA COLLINS-You said `the Labor Party' and I would like to know what you are accusing us of. Senator MASON-Just hold on. Senator FERGUSON-Address your question to him. Do not worry about them. Senator MASON-Admiral, perhaps Operation Relex is an inappropriate use of naval resources. Could Coastwatch, for example, have intercepted vessels such as, let us say, SIEV4? Would Coastwatch vessels have had the capacity to intercept SIEV1, SIEV2, SIEV3, SIEV4 through to SIEV12? Rear Adm. Bonser-Coastwatch does not have vessels. We normally have patrol boats provided in support of us. Those vessels which are normally provided to us, the patrol boats, would not have had the capacity to deal with this task. It needed bigger ships with far more people on them to deal with boats with several hundred people. CERTAIN MARITIME INCIDENT CMI 1676 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Coastwatch would not normally comment on party political matters and the policy of political parties, would it? Rear Adm. Bonser-Certainly not. Senator FAULKNER-I am not suggesting that you were, but it is- Rear Adm. Bonser-But I can answer factually- Senator FAULKNER-what would be described in naval parlance as a `shot across the bow' for Senator Mason. Senator FERGUSON-Which you have not done, of course. Senator MASON-The answer to the question is delightful, Admiral. That is fine. Senator JACINTA COLLINS-Going to point 35 in your opening statement, we discussed a moment ago the five separate dates in October when suspected departures or departures were reported. I am interested in having you elaborate on the detail of the information that we had. If we go back to where your statement says `on four different dates in August', what was the nature of the information on those four different dates in August-without going into anything that is sensitive? Rear Adm. Bonser-Either indications that the vessel was about to depart or had departed. Senator JACINTA COLLINS-So you are not suggesting that in August you were told that it was due to depart at some stage in September? Rear Adm. Bonser-No. What I am referring to is that in August, in September and in October we had a range of indications, at all times saying that this vessel may be about to depart or had departed at those times. Senator JACINTA COLLINS-Can you tell me on how many occasions you had reports that it had departed? Rear Adm. Bonser-I think we had three: one in September and two in October. Senator JACINTA COLLINS-The one in September indicated that it had departed from where-if that is not sensitive? Rear Adm. Bonser-I would have to check that detail and I cannot recall that now. Senator JACINTA COLLINS-Could you take that on notice? Again, if it is not sensitive information; I put that caveat on it. It was once in September and how many times in October? Rear Adm. Bonser-Twice. That is twice prior to the information received on 20 October, so that would have made it the third one. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1677 Senator JACINTA COLLINS-So the two occasions prior to 20 October were the two re- ports about-according to Rear Admiral Smith-a potential departure on 14 October? Is that one of them? Rear Adm. Bonser-I would have to check the dates. I am aware of the number; I do not have the dates with me. Senator JACINTA COLLINS-There is another one, which is reported to have departed on 17 October, and I think both of these relate to Palabuhan Ratu. The reason that I am seeking some clarity on this-and you might need to do this in more detail on notice-is that, according to Rear Admiral Smith, the one on 14 October was a potential departure as opposed to a departure, and the one on-let me get the date right-18 October was an actual departure. I am also curious as to whether those reports did in fact report movement of the ship-meaning that it did actually depart and then move to Suma-or whether it was a misreport, and any assessment you are aware of to that effect. Rear Adm. Bonser-I am aware that the report on the 17th was a movement from one port to another. Senator JACINTA COLLINS-So the report of the 17th was a movement and the report of the 20th was a movement-we know that according to the corroboration we got on the 22nd. Rear Adm. Bonser-That is correct. Senator JACINTA COLLINS-And the report of the 14th was a potential movement which did not end up being a movement. Rear Adm. Bonser-I believe that is the case, but I will have to confirm that. Senator JACINTA COLLINS-I am also then interested in the earlier reports. I am interested in the accuracy of the reporting. I am interested in whether the reporting you had for August and September equally accurately reported movements of this ship. On the map, the ship moves around the strait area, eventually coming to Suma before it enters the strait, and then it founders somewhere. Rear Adm. Bonser-We would not have that information, because we do not know what the vessel did after it departed its final port. Senator JACINTA COLLINS-No, I realise that. The case that is being presented to us is that we had a mixture of reports, and that clouded the picture. So we were not terribly confident of the report that we had on the 20th. Is that an accurate depiction? Rear Adm. Bonser-That is correct. Senator JACINTA COLLINS-What I am seeking to understand is whether this confused picture of reporting is actually a fairly accurate report of a ship making its way down to close to the strait, which is the vicinity, ultimately, of where it ended up foundering. I would like to see CERTAIN MARITIME INCIDENT CMI 1678 SENATE-Select Wednesday, 22 May 2002 the detail-so far as it does not compromise any sensitivity on intelligence purposes-of all of those reports: where the ship was, when it was being reported, precisely what it was being reported as possibly doing and whether it did in fact do that. Rear Adm. Bonser-That goes to the nature of the reports which are still classified and need to be declassified by the originating authority. Senator JACINTA COLLINS-Yes and no. You could look at those reports and answer those questions without compromising the full detail of the report, I would have thought-at least in many instances, maybe not in all. Rear Adm. Bonser-It would still have to be cleared with the originating authority. Senator JACINTA COLLINS-Again you are saying this is perhaps more appropriately a Federal Police issue. Rear Adm. Bonser-To look at the information in detail, yes. Senator JACINTA COLLINS-I also wanted to clarify what you indicated before, which was that you believe it foundered somewhere between the Sunda Strait and 80 nautical miles south of Java. Rear Adm. Bonser-I do not know where the vessel sank. All the reports that I have heard, which all come from what I have heard in the media, indicate somewhere between Sunda Strait and perhaps 80 miles south of Java. Senator JACINTA COLLINS-Are we talking nautical miles here as well? Rear Adm. Bonser-Yes. Senator JACINTA COLLINS-What component of that region falls within our aerial surveillance zone? Rear Adm. Bonser-My understanding is anywhere up to about 30 miles from Indonesian territory. Senator JACINTA COLLINS-The map has the strait up here. Rear Adm. Bonser-That is, from the coast. Senator JACINTA COLLINS-So if we take it from the coast and 30 nautical miles down then that is where our zone of aerial surveillance would be. Rear Adm. Bonser-That was the area in which Defence was conducting surveillance. You would really have to clarify the detail of that with them. I understand that there was a stand-off distance from Indonesian territory for diplomatic reasons. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1679 Senator FAULKNER-In Admiral Smith's letter he talks about the Coastwatch assessment of the Abu Qussey vessel that assessed that the vessel could possibly arrive at Christmas Island late 18 October or early 19 October 2001. Who makes those assessments? Rear Adm. Bonser-That is done by analysis staff. They would base that broadly on the reports that they might get of departure dates and then estimate an arrival time based on possible speeds of these vessels, which are invariably slow. Sometimes these things do not even occur because the vessels divert to somewhere else. Senator FAULKNER-Is there any reason that the civil maritime surveillance program opsums could not be made available to the committee? Rear Adm. Bonser-I can make them available in camera with that information, which is classified and based on the original AFP advice. Senator FAULKNER-But that would only be part of it, wouldn't it? Rear Adm. Bonser-All those opsums are is a precis of the original information, but it is still based on the original classified information that we received. Senator FAULKNER-Sure, it is based on that, but I thought it might be an analysis of that intelligence as opposed to just retailing the raw intelligence. Rear Adm. Bonser-It is just a precis of the original information. But some of it goes to the source and the nature of some of the information which still remains classified. Senator FAULKNER-Could you have a look, in relation to the opsum reports that are mentioned in your and Rear Admiral Smith's clarifying letter, at what might be able to made available? Rear Adm. Bonser-I can certainly have a look at it, Senator. Senator FAULKNER-I would appreciate that. There might be a need to follow up some questions on notice, depending on the nature of the information that is provided. Rear Adm. Bonser-Certainly, Senator. CHAIR-I indicated that I wanted to give some thought to whether we should go in camera to take some further evidence on some of these points. I can indicate to you now, Admiral, that that is a matter I will raise for consideration by the committee at our meeting, which is at six o'clock tonight. If, as a consequence of that discussion, we decide to do so, would you be available to come back and give some evidence? Rear Adm. Bonser-I can make myself available, yes, Senator. CHAIR-Thank you. I think that concludes your evidence for the time being. Thank you very much for your attendance. CERTAIN MARITIME INCIDENT CMI 1680 SENATE-Select Wednesday, 22 May 2002 Proceedings suspended from 3.24 p.m. to 3.41 p.m. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1681 WALKER, Group Captain Steven, Participant, Centre for Defence and Strategic Studies Course 2002, Department of Defence CHAIR-The committee will resume its hearing. I welcome Group Captain Walker. As I understand it, you do not have an opening statement. Group Capt. Walker-No, I have previously made submissions to General Powell's investigation. A copy of that was passed to Ms Bryant. Ms Bryant interviewed me in the past and there is a record of interview, which I believe the committee already has. CHAIR-It is already in the possession of the committee and in the records of our hearing. I have a couple of questions that I would like to ask you. Let me ascertain from my colleagues whether they have any questions. Senator JACINTA COLLINS-I have only a few, but you can go first and you might pick up what I want. CHAIR-Those are ominous words, which mean that, usually at some stage later, there are questions. Can I be clear about this: you were a member of the People Smuggling Task Force, representing the Department of Defence, when the meeting reporting the alleged `children overboard' incident occurred? Group Capt. Walker-That is correct. In my position as the Director of Joint Operations, working in the Strategic Command division, I attended two interdepartmental committees of the People Smuggling Task Force on Sunday, 7 October. CHAIR-Were you at the meeting on Sunday, 7 October for the whole time? Group Capt. Walker-I was at the whole of the meeting in the morning and part of the meeting in the evening. CHAIR-Did you arrive at the meeting before it commenced? Were you there until it concluded? Group Capt. Walker-I arrived at the morning meeting before it commenced and remained until it concluded. I arrived at the evening meeting before it commenced and departed after Air Vice Marshal Titheridge, the Head of Strategic Command, arrived. CHAIR-Were you absent from those meetings for any length of time or any time at all? Group Capt. Walker-I do not believe so. CHAIR-So is it fair to say that you were there for the whole meeting and all the events that occurred at the beginning of the meeting through to the end of the meeting-you were a witness to them or part of them? CERTAIN MARITIME INCIDENT CMI 1682 SENATE-Select Wednesday, 22 May 2002 Group Capt. Walker-Yes. CHAIR-That is, both meetings. Group Capt. Walker-For the first meeting, I was there for the whole meeting; for the second meeting, I was there for only part of the meeting. CHAIR-Ms Halton was the chairperson of that meeting. She has emphasised to us that the task force was simply a coordinating and information sharing body rather than a decision making body. Is that your understanding of its role? Group Capt. Walker-Largely, yes. CHAIR-Were there any discussions of issues like, for example, the medical treatment of individual asylum seekers, the use of force or the development of `media lines for ministers'? Group Capt. Walker-My notes do not reflect that, and I only have the briefest of notes with respect to both of those meetings. The meetings were largely designed to discuss logistics implications for the island sites and the moving of people between areas. CHAIR-On the question of media lines for ministers, though, we have some evidence that the committee gave thought that. Do you have any recollection of that being discussed at the meeting? Group Capt. Walker-I believe it was discussed, but I have no recollection of the details. CHAIR-Do you have any recollection of media lines for ministers being put to the committee for its approval? Group Capt. Walker-No. CHAIR-Were you consulted about any media lines for ministers? Group Capt. Walker-Not that I recall. CHAIR-When you reported back, whom did you report back to? Group Capt. Walker-After the morning meeting, I went back into the division and worked through the rest of the day. I believe I spoke at some point during the day with the Head of Strategic Command, simply to update him on what had happened at the morning meeting. With respect to the evening meeting, because he arrived and I left, there was no need for me to update him any further other than on what was being immediately discussed. Senator FAULKNER-Did you hear the conversation that the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs had with Minister Ruddock? Group Capt. Walker-No. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1683 Senator FAULKNER-He was close to the table I think when he had it, he informed us. I do not know whether or not you are aware of that. Group Capt. Walker-My recollection of that meeting is that he was probably sitting four or five seats to my right on the same side. Senator FAULKNER-So you did not hear any of the secretary's end of that conversation? Group Capt. Walker-No. Senator FAULKNER-Do you recall at what time during the meeting that conversation took place? Group Capt. Walker-No, I do not. Senator FAULKNER-Were you aware at any point during the meeting of the subject of the conversation or, in other words, that the secretary was informing his minister of the suggestions about children being thrown overboard? Did that become clear at any point afterwards? Group Capt. Walker-No, I do not recall that. There were many phone calls made in and out of that meeting, and I did not listen in to other people's calls. Senator FAULKNER-Could you be very precise about any involvement that you heard or had in relation to children overboard at those meetings of the task force on 7 October? Group Capt. Walker-All I can do is reiterate what I had in my statement: when I arrived at the morning interdepartmental committee meeting, Jane Halton announced to the group present-and I cannot recall how many of the group were present at the time-that, I think, 14 people were in the water and that they were throwing children into the water. This was the first I heard of that information. Senator FAULKNER-What about your contacts with Air Vice Marshal Titheridge on the day? Do you have any record or recollection of those? Group Capt. Walker-I believe the only time I spoke to Air Vice Marshal Titheridge was during the afternoon, between the two meetings. Senator FAULKNER-Was that issue discussed at all with Air Vice Marshal Titheridge? Group Capt. Walker-I cannot recall. Senator FAULKNER-Are you satisfied in relation to the conduct of your own responsibility as group captain that you fulfilled your role to ensure that accurate information was passed on to the task force from a Defence perspective? Group Capt. Walker-I believe so, because that morning I had gone into the headquarters before attending the first IDC and I had read through the message traffic which had come in to CERTAIN MARITIME INCIDENT CMI 1684 SENATE-Select Wednesday, 22 May 2002 update myself as to what had happened. When I arrived at the IDC, Jane Halton announced news which was new to me. When I went back to the headquarters to try and confirm this in- formation, I could find nothing in the written message traffic that mentioned children. I returned to the evening IDC and, when it came to 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. Since I did not know what the source of the information was-that is, where Ms Halton had got the information-basically I was trying to say to her, `Since I can't prove what you're saying, I think you should go back and check from your source that you are happy that the information is correct.' Senator FAULKNER-You were specifically asked by Ms Halton to check on-what?-the 9th or 10th of October, weren't you? Were you asked by Ms Halton at some point or was the Defence representative-and I assume it is you-asked by her to check the accuracy of these claims at a later stage on either the 9th or 10th of October? Do you have any recollection of that? Group Capt. Walker-No. I attended the two interdepartmental committee meetings on the 7th and I did not attend another of those meetings until 12 October. Senator FAULKNER-Do you know who the Defence representative on the 9th and 10th was? Group Capt. Walker-No, I do not. Senator FAULKNER-But you were not there on the 9th or the 10th? Group Capt. Walker-No, it was not me. Senator FAULKNER-Ms Halton, I think in her statement to Ms Bryant, said that she had told the Defence representative at the meeting on the 9th or 10th-her words were: `That they had better be certain about the veracity of the initial reports and they should do some checking.' But that was not you? Group Capt. Walker-No. Senator FAULKNER-Are you aware in the broad of any other contacts that Ms Halton, as the key person at the task force-she was the chairperson of the task force-might have had in relation to this issue, either the claims that children had been thrown overboard or one other element of this which, of course, is the suggestion-in fact, misrepresentation-that the photographs that were published actually may have been of such an incident? Are you aware of any contact that Ms Halton may have had with you or anyone else from Defence undermining the credibility of those claims? Group Capt. Walker-No, I am not aware of Ms Halton contacting anyone. She did not contact me and I do not know whether she contacted anyone else. The task force, which I pre- sumed was on her behalf, contacted Strategic Command requesting a chronology of the events, which we provided. On that chronology we put a footnote which said that there was still no CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1685 written confirmation of the verbal reports. Again, that was, from my perspective, to say, `On Sunday evening, I had asked you to go back and check your sources.' Once again, it was a re- minder, `Would you check your sources?' because I did not know and I still do not know where that information came from. Senator FAULKNER-To your knowledge, was there any doubt about the nature of the advice going from Defence to PM&C on the issue of children being thrown overboard? Did you feel that there was any doubt about it or do you think there was clarity that the events did not take place? What was your personal perspective of that? Group Capt. Walker-My personal perspective was that I had no auditable proof. On the other hand, the personnel who seemed to have the information about the children apparently having gone into the water seemed very confident that that was an authoritative source. Senator FAULKNER-So do you have any other involvement in that particular issue until this gets more public notoriety on 7 and 8 November, after the original meeting and then the chronology-have you got any other involvement in that before early November? Group Capt. Walker-No. Senator FAULKNER-As far as you are concerned, it goes off the radar screen, does it? I am not being critical about that; it goes off a lot of people's radar screens. Group Capt. Walker-It was just one of many issues that was going on at the time, yes. Senator FAULKNER-Did you see the chronology as basically an end point in this, when that was provided? Group Capt. Walker-Yes, I think I did, with an assumption that somebody had better information than I did. Senator FAULKNER-There is no question about the nature of it being formal advice. Group Capt. Walker-Sorry, I do not understand. Senator FAULKNER-The chronology and the footnote were formal advice from Defence to the Department of the Prime Minister and Cabinet. Group Capt. Walker-Yes. I saw that more as working information for the task group to be extracting information from for their purposes. Senator FAULKNER-It does not get discussed at the actual task force itself, does it? Group Capt. Walker-I cannot say whether it did or it did not because I was not at the task force meetings afterwards. Senator FAULKNER-You were not there on the 10th and 11th. CERTAIN MARITIME INCIDENT CMI 1686 SENATE-Select Wednesday, 22 May 2002 Group Capt. Walker-No. Senator FAULKNER-Did you get the feeling generally that there were some criticisms- explicit or implicit-by the task force of the timeliness and credibility of advice that was coming from Strategic Command? Group Capt. Walker-Yes. Throughout the process there was a frustration that perhaps Defence was not putting forward information in a sufficiently timely manner. Senator FAULKNER-Do you have any insight into the reason for what caused that level of frustration? Is it because of the difference between the task force wanting to move quickly, being a very public and fast-moving area, and Defence wanting to get it right? Do you have any perceptions like that? Group Capt. Walker-I think that is probably an accurate summation of the situation. Defence, I think, has a devolved level of control, in which we try to allow the responsible commanders to do their jobs, and when they have done their jobs they report back and tell us what results they have achieved. The task force was more interested in the minute-to-minute detail-on occasions, not always. Senator FAULKNER-Do you think Strategic Command's advice was taken seriously by the task force and PM&C? Group Capt. Walker-Yes, I do. Senator FAULKNER-This is why I am trying to get to the credibility; I said the credibility and timeliness of advice. I wonder to what extent some of that frustration might have been about the actual substance of the advice. Group Capt. Walker-I do not think I ever had a feeling that there was a concern about the substance, just about the timeliness. Senator FAULKNER-How did Defence work out its representation at the task force meetings? Who coordinated that? Group Capt. Walker-Head of Strategic Command was the primary representative, and he would decide who would attend, depending upon availability. Certainly when I look back through the rest of my notes for that period most of the work that was going on was to do with the war against terror, so the priorities in a relatively small organisation have got to be fairly well organised. Senator FAULKNER-The Strategic Command priorities? Group Capt. Walker-Yes. Senator FAULKNER-I am just going on memory: Commander Davies and you were the main representatives for Air Vice Marshal Titheridge at the meetings, was that right? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1687 Group Capt. Walker-I think it was during that period, yes. Senator FAULKNER-And would this be coordinated out of the Head of Strategic Command's office? Is that how it worked? It was just an availability thing, wasn't it? Group Capt. Walker-Largely availability. Senator FAULKNER-Were any other issues brought to bear on that? Group Capt. Walker-Within the headquarters there were a number of people who remained closely associated with the subject matter, but outside that small group there were the people we were drawing representatives from. Commander Davies was the head of the Maritime Operations section within the division, so it was appropriate that he would attend for the basically naval flavour of Operation Relex. Senator FAULKNER-What about any feedback you may have got-say when Commander Davies was there and you were not-did you have a bit of a debrief on these sorts of things? Group Capt. Walker-Our priority was mainly concerned with defence service provision, if you like, for support for Operation Relex and DIMA. Senator JACINTA COLLINS-How often was Commander Davies present? Group Capt. Walker-I cannot say; I do not have that record available. Senator JACINTA COLLINS-The records that were provided to us indicate that the 10th was his one and only attendance. Group Capt. Walker-There were two levels of interdepartmental committees. We had two operations: Operation Relex and Operation Gaberdine. Gaberdine was largely a logistics support operation. I think you will find that Commander Davies represented Strategic Command on quite a number of those. But the two were relatively interlinked; it was just a separation from a Defence perspective as to which forces were going to do the interception, escort and detection, and what support forces were going to take care of the augmentation of reception centres and the moving of people from them. Senator FAULKNER-Did you get a report back from Commander Davies of that meeting on the 10th? Group Capt. Walker-I do not recall at the moment. I probably got a report back from him on the requirements from DIMA of Defence. Senator FAULKNER-Are you able to say definitively when you became aware that there were serious doubts about the incident itself: that is, children having been thrown overboard- or, in this case, not having being thrown overboard? CERTAIN MARITIME INCIDENT CMI 1688 SENATE-Select Wednesday, 22 May 2002 Group Capt. Walker-No. I was never clear in my mind until Ms Bryant interviewed me for her investigation. At that stage I said to her, `I am still not clear in my mind whether children did or did not go into the water.' Senator FAULKNER-What about photographs relating to that event-the fact that the photographs were actually misrepresented as being in relation to that event? Was that about the same time or earlier in that case? Group Capt. Walker-Slightly later. The photographs in email format came into Strategic Command to Lieutenant Commander Wilson with an annotation that they should be forwarded as required. He forwarded those to PACC-our department of Public Affairs and Corporate Communications-for their action. I saw two photographs and I saw the annotations of what they were about-namely, two good-news stories of sailors rescuing people from the water. I was aware, as we all were in headquarters, that the photographs referred to the time of the sinking of the vessel. It was very clear from the ship that the purpose of this was that the vessel had gone down, the sailors had done a very good job of saving life, and here was the opportunity to get some good public relations on behalf of the Navy. We forwarded that to PACC, and that was really the end of our responsibility for it. However, when it came out in the media that these photographs were being tied to events of the previous day it was clear to us, but we assumed that that issue would be resolved by PACC taking it up with the minister's office. Senator FAULKNER-So you knew from pretty early days-say 10 or 11 October-that the photos were misrepresenting the `children overboard' incident? Group Capt. Walker-I knew what the photographs were when they first came in, and when they appeared later I knew that they did not represent the event that it was claimed they did. Senator FAULKNER-Could I ask you about the Strategic Command brief 001/1109, which is the Operation Gaberdine-Operation Relex 0800 hours brief of 8 October. Do you know the brief that I am referring to? Group Capt. Walker-That is a written brief? Senator FAULKNER-It is a written brief cleared by you and prepared by Wing Commander Cowan. I have raised it here on previous occasions. This is a brief that, from memory-and I do not have it in front of me-discusses significant SIEV4 events in the preceding 24 hours. It does not mention children being thrown overboard but does mention SUNCs misbehaving-I suppose that is the best way of putting it. Group Capt. Walker-I guess the reason the children overboard issue is not mentioned in that report is that I see it as my responsibility as a staff officer to take auditable information and put it forward to the other departments. Nothing I had in writing showed that children had gone into the water, so I did not include it in the brief that went forward. Senator FAULKNER-That is just as well, isn't it, because it did not happen? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1689 Group Capt. Walker-With hindsight it did not happen but, as I say, I had no evidence to show that it did happen. Senator FAULKNER-You used original cables and signals and that sort of thing to draw up these briefs? Group Capt. Walker-On the ship, yes. Senator FAULKNER-Children being thrown overboard is not mentioned in those, so it does not get into that brief? Group Capt. Walker-No. Senator FAULKNER-As the clearing officer for that brief, you accept responsibility for it? Group Capt. Walker-Yes. Senator FAULKNER-How is that distributed to all of those people, including the Minister for Defence and others, on the distribution list? Does that go out by fax or email? Group Capt. Walker-It goes out as an email. Senator FAULKNER-Did you often get any feedback from these sorts of reports? Did that ever happen? Group Capt. Walker-Yes, it did-usually from the Department of Foreign Affairs and Trade. Senator FAULKNER-Did you get any for this one? Group Capt. Walker-Not that I recall. Senator FAULKNER-Is it standard operating procedure for Strategic Command to produce briefs of this type? Group Capt. Walker-It is event specific, so it is put out if there is an activity of specific interest. In this case, with Operation Gaberdine and Operation Relex, we were putting it out on a daily basis. Senator FAULKNER-If you had had supportive material-and we have described as signals the whole range of tangible evidentiary support for the fact that children had been thrown overboard-and I know you did not, would that be the sort of thing that would go into a report like this? Group Capt. Walker-Yes, it would. Operationally, it is probably of no significance but politically it is of interest. CERTAIN MARITIME INCIDENT CMI 1690 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Yes. Would you be happy to describe this as an authoritative account of the incident-not the children being thrown overboard incident, but the SIEV4 incident? There is nothing in it, is there, that causes you discomfort, even in retrospect? Group Capt. Walker-No, there is not. Senator FAULKNER-There is no reason to believe it is not authoritative? Group Capt. Walker-Do you mean what I have given out? Senator FAULKNER-Yes, the brief. Group Capt. Walker-No. I think that is reasonably accurate, given that the product of Strategic Command is only as good as the information that comes into the headquarters. Senator FAULKNER-With the chronology that comes out of Strategic Command and with this brief that comes out of Strategic Command, is it reasonable to assume that Strategic Command is sufficiently in the loop to be able to compile an authoritative account? It seems to be, but I wonder if there are weaknesses? Group Capt. Walker-At our level, it is a results orientated account rather than an activities level account, if you follow me. We are not into the fine detail of how business was done; we are really just reporting on events, what has been achieved and where we are going next. Senator FAULKNER-I think Mr Moore-Wilton in fact said at one point that he doubted whether Strategic Command might have all the relevant information. Is that a fair comment, do you think? Group Capt. Walker-I think it is a question of what Mr Moore-Wilton considers to be relevant. Senator JACINTA COLLINS-That is the world's biggest understatement! Senator FAULKNER-I would not presume to guess. Would it be possible in relation to the Strategic Command brief of 0800 hours on 8 October for us to get a list of the Prime Minister and Cabinet email contacts that it would have been sent to, if there are any? You may want to take that on notice for us. Group Capt. Walker-Who in PM&C was it sent to? Senator FAULKNER-All I am asking is: can you take that on notice for us? Could I go to another issue which I would like to raise, relating to something that you supplied in your submission to General Powell in the preparation of his report-the fax cover sheet from ADHQ command centre to Ross Hampton: `HMAS ADELAIDE-SIEV 04 UPDATE 01 CORRECT AS AT 07 1400K OCT 01'. Group Capt. Walker-I have that. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1691 Senator FAULKNER-I thought it was rather impressive, the way I read that into Hansard! Would it be fair to say that that is a Strategic Command brief to Minister Reith's office, in layman's terms? Is that what it is? Group Capt. Walker-I would prefer to describe it as Strategic Command brief to Ross Hampton. Ross Hampton was not our normal point of contact within the minister's office. It was not usual for us to work with him. I am not certain what the circumstances were in the office at the time, but Ross Hampton seemed to be the single point of contact, if you like, that weekend. He seemed to have a strong need for detailed information about it. Senator FAULKNER-I am not sure why you draw the distinction, when Hampton is a ministerial staffer for Reith. Group Capt. Walker-We would normally work through the Defence liaison staff. That was our normal chain of communication. Senator FAULKNER-Who was that, Scrafton? Group Capt. Walker-Mr Scrafton, yes-or his staff. Senator FAULKNER-Could you say why this brief was supplied to Mr Reith's office? Group Capt. Walker-Because Ross Hampton had requested it of the watchkeeper. Senator FAULKNER-How did he request it? Group Capt. Walker-I believe by phone, from the watchkeeper. Senator FAULKNER-Did he request it or did he go in with his usual approach, which is basically to stand over people and demand it? Group Capt. Walker-You would have to take that up with the watchkeeper. He was the one who was speaking to Mr Hampton on the phone. Senator FAULKNER-The only reason I ask-it is not particularly important-is that we know some of the contacts he had with Strategic Command and others in the ADF were very offensive. Senator JACINTA COLLINS-It seems to be a pattern of behaviour. Senator FAULKNER-A pattern of behaviour, as Senator Collins points out, is probably a good way of describing it. Group Capt. Walker-You are asking me for hearsay in that case. But the watchkeeper was concerned that he had been left in no doubt by Mr Hampton that he was to provide the information. CERTAIN MARITIME INCIDENT CMI 1692 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-I'll bet. Were you aware of Hampton's pattern of behaviour? Group Capt. Walker-Not that time. Senator FAULKNER-But you are now? Group Capt. Walker-I am now. Senator FAULKNER-Can you say what information this particular brief was based on? Group Capt. Walker-The watchkeeper took this out of messages coming from the ship. Senator FAULKNER-Would you describe that as a formal or informal communication with the minister's office, given the background that you have described to us? Group Capt. Walker-I would be content to see that as a formal method of communication, in that I do not believe the watchkeeper exceeded his authority. He simply took verbatim-I think it was pretty well verbatim-words out of the messages from the ship and passed them on to the minister's office. Senator FAULKNER-The watchkeeper is in a difficult position in this sense, isn't he? Let's be frank about it. The minister's staff are on the phone-possibly abusive-because we are yet to establish whether his behaviour was usual or whether, for once, he was a bit more well-mannered. It is an invidious position for the watchkeeper, isn't it? Group Capt. Walker-It is a very difficult position and a very responsible position, and we have some very good people working in that spot. Senator FAULKNER-The watchkeeper did the right thing in this regard? Group Capt. Walker-I think he did the right thing. He provided the information that was requested. Senator FAULKNER-I am not critical, but I do appreciate the challenge that the watchkeeper would have faced at that time, given the contact from the minister's office. You would certainly accept that this was outside the chain of command. Group Capt. Walker-It is not really operational information. It is just details, if you like. So I do not think it is a chain of command issue so much as a provision of information. It is a coordination, communication service, if you like. Senator FAULKNER-Did the watchkeeper report to you and indicate this had happened? Group Capt. Walker-He did later. Senator FAULKNER-How much later? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1693 Group Capt. Walker-I think it was about two days later before I found this out. That is probably to do with the roster that they work. Senator JACINTA COLLINS-What did he report to you? Group Capt. Walker-He reported the nature of the demand; let's put it that way. Senator JACINTA COLLINS-How did he describe to you the nature of the demand? Group Capt. Walker-He said it had been forcefully demanded. Senator FAULKNER-I will bet he did not say that, Group Captain Walker. I suspect you are being careful. So what did he really say? Group Capt. Walker-I do not recall what he really said. Senator FAULKNER-But let's be serious for a moment. You were left under no illusion but that it was a pretty forceful demand from Hampton. Group Capt. Walker-Yes. I think the watchkeeper felt- Senator FAULKNER-Did the watchkeeper feel that he had been stood over? Group Capt. Walker-Yes. He had been left in no doubt that this was the minister's office demanding the information and that he was to provide it. Senator FAULKNER-What action did you take as a result of that, when the watchkeeper informed you? Group Capt. Walker-Later on that week I was beginning to get concerned. I was generally concerned about the release of information from Strategic Command to a whole range of people who were simply ringing a range of numbers that people had obtained within Strategic Com- mand and demanding information on behalf of various organisations, without really being clear as to what level and for what purpose. So I told all of my people on the 11th-my record shows-that they were not to release information without clearing it through me. Senator FAULKNER-So what you decided to do was to set up a process whereby you would authorise such release of information. Group Capt. Walker-Yes-just to vet who was getting what. It is an awkward position, because we were trying to do our best, as service providers, to communicate, coordinate and cooperate in a timely manner. But what was tending to happen was that we were losing visibility of who had what information and for what purpose. Senator FAULKNER-In your submission to Major General Powell, you indicate you produced an `info brief' to Minister Reith on 7 October. CERTAIN MARITIME INCIDENT CMI 1694 SENATE-Select Wednesday, 22 May 2002 Group Capt. Walker-Yes, I did. Senator FAULKNER-I wonder if we could identify what that brief was, please. Group Capt. Walker-All it was was a record of what had happened to SIEV4 up to its arrival in the vicinity of Christmas Island. It was produced before I had any firm indication of numbers of people going into the water, so it became almost a non-brief in terms of what people subsequently became interested in. Senator FAULKNER-This is prior, obviously, to the infamous `children overboard' incident, then. Group Capt. Walker-It was. I was actually producing the brief after the incident had happened, but before I got around to reading the messages. Senator FAULKNER-So the best way to describe it may be that you were depending on reporting that precedes the incident that was misrepresented. Group Capt. Walker-Yes, the significant issue in that brief was the firing of shots, which I thought at the time was going to be probably the most critical incident. Senator FAULKNER-Why did you produce that brief for Minister Reith? Group Capt. Walker-Just to keep him updated on the situation. I thought the firing of the shots would have been an activity that would be of interest. Senator FAULKNER-Fair enough. What I suppose I was getting at was whether this was your initiative or that of one of your superiors. Group Capt. Walker-I did that on that day because I thought the minister needed to know. Senator FAULKNER-Fair enough. So it was your initiative? Group Capt. Walker-Yes. Senator FAULKNER-Of course, as we have established, it does not refer to children being thrown overboard-we know why. Is there any reason to think that that brief is not authoritative too? Group Capt. Walker-The brief is all derived from information that came in from the ship. Senator FAULKNER-So you are saying to us that all these briefs that are going from Strategic Command to the minister's office and to the Department of the Prime Minister and Cabinet are authoritative? Group Capt. Walker-There is nothing original coming out of Strategic Command; it is operational information which we think belongs to- CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1695 Senator FAULKNER-I appreciate that. You are depending on other primary sources. Group Capt. Walker-Yes. Senator FAULKNER-I understand that, but-understanding that you are depending on other primary sources-you are not suggesting that the briefs are not authoritative. As one looks back, there does not appear to be anything in them that would lead a reasonable person to question their authority. Group Capt. Walker-No. I think they are accurate. Senator FAULKNER-One other issue that you also canvass in your submission to General Powell's report is the UNHCR letter that was sent to the secretary of the department of immigration on 8 October. The UNHCR letter mentions the allegations that children were thrown overboard. Are you aware of that? Group Capt. Walker-Yes. Senator FAULKNER-Could you let me how Strategic Command responded to that letter, and specifically are you aware of any contact from Strategic Command to either DIMA or Mr Farmer about `children overboard' claims as a result of that letter? Group Capt. Walker-Yes, we were involved in that. I do remember discussing who should respond, because it did appear to bounce backwards and forwards between the two departments for a while. In the end we were instructed not to respond, but I cannot remember who at this stage was to respond and why. I think the issue was more to do with the legal questions than anything else. Could we take that on notice and get back to you? Senator FAULKNER-I would appreciate that. I just want to be clear on one thing in rela- tion to the People Smuggling Task Force, then perhaps other colleagues would like to ask you some questions. I would just like to go back to the task force and Ms Halton. I wonder if you are aware of any contacts from either Ms Halton or anyone else at the task force that followed up the information, or misinformation, about `children overboard'-that whole incident with Defence-either during any meeting you were attending or outside the People Smuggling Task Force environment. I just wonder if you aware of any contacts that might help the committee's understanding of what occurred. Group Capt. Walker-No, I am not aware of any personal involvement on the part of Ms Halton. The only other activity that I was aware of on behalf of the Department of the Prime Minister and Cabinet was the request for the chronology, which we provided. Senator FAULKNER-You are not aware at all of any task force contacts to Adelaide, maybe via satellite phone, or Brigadier Silverstone? Group Capt. Walker-No. As I say, she had different information from mine, but how she obtained it I do not know. CERTAIN MARITIME INCIDENT CMI 1696 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Have you got any indications at all, apart from gaining that information, about Ms Halton or any other member of the task force providing information to anyone outside the task force, which is a different issue, of course? Group Capt. Walker-No, I am not aware of any. You asked me to check who was on the distribution for the thing. In the Department of the Prime Minister and Cabinet it was the First Assistant Secretary, Social Policy Division. Senator FAULKNER-I should know who that is. Thanks very much. CHAIR-I would like to go to the alleged photographs of the incident. I apologise if I cover some ground that you have covered in your answers to Senator Faulkner, but I was out of the room for a moment or two. Can you tell me when you knew that the photographs had been misattributed? Group Capt. Walker-I can only assume that whenever I first saw them in the media would have been the first time I realised that they were referring to a separate incident. CHAIR-That was-and I am relying on memory now-about 10 or 11 October, I think. Group Capt. Walker-I think that would be correct, yes. CHAIR-Is that also when you had serious doubts about the incident itself, or did you have serious doubts earlier than then? Group Capt. Walker-I can only restate what I said before. I had no auditable evidence that it had happened. That 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. CHAIR-But did you begin to internally question how reliable that may have been? Group Capt. Walker-I probably need to separate the two incidents again. I certainly knew that the photographs did not support the `children in the water', but that was not to say that the `children in the water' did not happen. CHAIR-So when they were published you knew for sure-correct me if I am wrong-that the photographs were being misattributed. Did that lead you to consider whether or not the incident itself may have occurred? Group Capt. Walker-No. It did not raise any more doubts than I already had. CHAIR-When did the doubt start to creep in? Group Capt. Walker-As I said, I was not sure whether the event actually took place or did not take place until Ms Bryant told me during the course of her interview. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1697 CHAIR-Were you on the task force on 12 October? Group Capt. Walker-Yes, I was. CHAIR-When did you mention your concerns about the photographs; did you mention them at that meeting? Group Capt. Walker-No, I do not think I did. CHAIR-But you would have seen them on the 10th or the 11th- Group Capt. Walker-Yes. CHAIR-and known then that they were not what they purported to be, that they were deceitfully reported. Group Capt. Walker-Yes. I think by that stage our PACC organisation was already dealing with the minister's office about the issue. Therefore, I assumed that it was a Defence matter that Defence would resolve. CHAIR-Is that why you did not say anything at the IDC on the 12th? Group Capt. Walker-I presume so. I have no real recollection. The IDCs, as I say, were not specific to this incident; they were usually discussing other matters. CHAIR-Did the IDC proceed by doing a round-up so that all the agencies could report in and coordinate their knowledge of events? Did they proceed that way-by asking people to add information that may have become available since the previous meeting? Group Capt. Walker-The meetings that I attended were normally to do with requirements and provision of services, not so much a matter of general discussion. CHAIR-So, as best you could advise us now, you think that you did not raise it because you believed PACC had dealt with it with the minister. Group Capt. Walker-Yes, PACC were working on the issue, clarifying the fact that the photographs, as issued, were not matched with the information that had been attached-I have to be careful here with the words-that the photographs did not refer to the incident which they appeared to be matched with. CHAIR-What exactly did you understand PACC were doing with the minister? Group Capt. Walker-I understood that they were dealing with the minister's office to clarify exactly the nature of the incident that the photographs portrayed-namely, after the sinking of the vessel, the day after the alleged incident. CERTAIN MARITIME INCIDENT CMI 1698 SENATE-Select Wednesday, 22 May 2002 CHAIR-When you saw these photographs in the paper and you knew that the labelling was not right, what did you do; did you report it to anyone? Group Capt. Walker-I believe that I discussed it with a member of PACC who regularly attended a meeting in Strategic Command on a different matter, and I was assured that PACC knew of the error and was addressing it with the minister's office. CHAIR-Can you recall who that member of PACC was? Group Capt. Walker-No; it would be an opinion. CHAIR-Sorry? Group Capt. Walker-I have an opinion of whom it might have been, but I am not certain of who it was. CHAIR-But you are firm in your own mind that you reported it to PACC. Group Capt. Walker-That I discussed it with the PACC representative. CHAIR-Can you recall what was said to you when you did raise it with them? What was the reply exactly? Group Capt. Walker-I did get an explanation along the lines of there having been some confusion about the stories which had been attached to the imagery having become somehow mismatched or detached. CHAIR-Was there more? Did they say to you, `We're on the case; we're going to fix this up'? Group Capt. Walker-Yes, that was the impression I gained. CHAIR-Can you recall whether that was said to you expressly? Group Capt. Walker-I believe it was, yes. CHAIR-Can you recall what `fixing it up' meant-that they were going to contact the minister's office? Group Capt. Walker-As I understood it, they were already in contact with the minister's office, discussing the nature of the photographs and the information that had been attached with them. CHAIR-If you understood that, did you also understand what had been the response from the minister's office? Group Capt. Walker-No, I do not think I knew it at that stage. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1699 CHAIR-But, knowing that this was wrong, at that point in your own mind were you satisfied that the matter was being attended to and was likely to be corrected? Group Capt. Walker-Yes, I was. I thought PACC were taking all the steps they could and that it would be resolved quickly. CHAIR-Were you surprised when it was not? Group Capt. Walker-Yes. CHAIR-When it was not, did you raise it with PACC again? Group Capt. Walker-I do not recall. CHAIR-Did you have interaction with PACC in the succeeding days and weeks? Group Capt. Walker-I had regular interaction with PACC to do with the war on terror. So I was meeting with the PACC representative at least three times a week and other issues were discussed from time to time. CHAIR-So you are not a fixture in the PACC office, but you are wandering in and out three days a week? Group Capt. Walker-No, they come down- CHAIR-They come and see you? Group Capt. Walker-Yes. CHAIR-They wait on you? Group Capt. Walker-Yes. CHAIR-You cannot recall, but would you dismiss the idea that you did not follow up with them? Group Capt. Walker-No, I will not dismiss the idea that I did not follow up. But I think I thought I had gone far enough, and I believed that PACC were doing all in their power to resolve the situation. CHAIR-This is not intended as any criticism, but you saw that it was wrong, you ascertained from PACC that it was going be corrected and it was then obvious that it was not corrected. You talked to PACC three or four times a week about broad issues and there was general chitchat as well. After the initial discussion, did anyone in PACC indicate to you that efforts were being made to correct the record? CERTAIN MARITIME INCIDENT CMI 1700 SENATE-Select Wednesday, 22 May 2002 Group Capt. Walker-Yes, I believe PACC continued their efforts. Where the stalemate actually arrived in the end, I am not sure-or why. You would have to take that up with PACC. CHAIR-But, if you believe PACC did do that, what is the foundation for that belief; why do you believe that? Group Capt. Walker-Sorry? CHAIR-Why do you believe that, over the succeeding days, PACC did continue their efforts to try and correct the record? Group Capt. Walker-I believe that because of conversations I had at the time. CHAIR-Can you be specific about with whom and at what time? Group Capt. Walker-I would prefer not to be. CHAIR-I understand that, and I appreciate the sensitivities, but we are conducting an inquiry into these matters. Group Capt. Walker-My normal point of contact in PACC was Mignon Patterson, who I do not believe was directly involved but certainly knew of all of the actions of PACC at the time. CHAIR-So are we to conclude that, when you believe that there were ongoing efforts, you would have believed that by virtue of contact with this person? Group Capt. Walker-Yes. So I have no first-hand evidence; I am working on conversations. CHAIR-When you saw that the photos were misrepresented and after or at about the time you had your discussion with PACC about what they were doing to correct them, did you report it or discuss it with any other people within the chain of command? Was there anyone else to whom you spoke about this? Group Capt. Walker-I do not recall. CHAIR-Within Strategic Command? Group Capt. Walker-I presume that I discussed it with the head of Strategic Command, but I cannot detail when that would have been. CHAIR-But you are confident that you did? Group Capt. Walker-No, I am not confident that I did, necessarily. I have no specific recollection. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1701 CHAIR-But you presume you did? Group Capt. Walker-I presume I did. CHAIR-Why do you make that presumption? Is it that you are just a thorough person who does these things in the normal course? Group Capt. Walker-We have regular meetings and briefings to share information within headquarters. I presume it would have been covered, because it was a topical issue of concern at the time. CHAIR-And you are a conscientious officer who dots the i's and crosses the t's. Group Capt. Walker-I believe so. I try to do my job well. CHAIR-On that basis, you make the presumption that you would have done this. Group Capt. Walker-Yes. CHAIR-Did Jenny McKenry or anyone else inform Strategic Command that the minister had been advised that the photos had been misattributed? Group Capt. Walker-You would have to ask the head of Strategic Command that question, I think. CHAIR-Or, presumably, Ms McKenry. Group Capt. Walker-If I can snap back one question, the Navy headquarters would also be involved in that loop. The question of the photographs was, I thought at the time, more an issue for Navy than it was for Strategic Command. Navy headquarters, I think, had an involvement, and I think at that stage part of my relative comfort that somebody was attending to the issue was because I thought that between PACC and Navy the issue would be resolved. It is not strictly an operational matter to be dealt with by Strategic Command; it was a question of whose responsibility it was to fix the mismatch of information. CHAIR-In regard to these issues of responsibilities, this demarcating clearly bounds of responsibility, at this level of information flow you would cover all the options, wouldn't you? While on a very narrow reading it might strictly be their responsibility, would you overlap to make sure that there were linkages? You have just reported to us that you believe you told Strategic Command that you did discuss this matter. Group Capt. Walker-To get to the bottom of this, perhaps I could say this: when we received the imagery for forward transmission, Lieutenant Commander Wilson sent it forward to Commander Piers Chatterton, who is in Navy headquarters, and also to Brigadier Bornholt in PACC. From our perspective, since we had only been an information addressee, we felt we had fulfilled our responsibility by passing it on to the responsible areas, and that we should leave them to deal with the situation. CERTAIN MARITIME INCIDENT CMI 1702 SENATE-Select Wednesday, 22 May 2002 CHAIR-That is fair comment; you have done your job. But the manifest fact sitting there is these photographs which we know are not true. They are not corrected and it remains the case. Is that an example of miscommunication-is that what you would describe it as? Group Capt. Walker-There could be a number of interpretations-you are asking me for an opinion. It could be miscommunication; it could be blocked communication; it could be non- resolution of the situation. I do not know. You are asking me for an opinion. CHAIR-I see. Can you as a consequence of this experience-as a group captain in the Air Force, concerned, as I am sure you are, about information flowing critically in a timely way to the key officers-as a professional Defence Force personnel officer say that you think this was a good example of communication, or were there faults in the system? Group Capt. Walker-From where I sit, the information that we passed forward was done in the correct manner, and I have no reason to believe that the two organisations that we passed that information on to did not also act in the correct manner. CHAIR-I appreciate that answer, but the problem I am dealing with is that it is said by ministers and others that they were not told about these things, and you are telling us that the information was passed on in the correct manner. As far as I can conclude from your evidence, it was passed on, to the best of your knowledge, in the appropriate way that Defence would communicate these things. Group Capt. Walker-Yes. I believe that the various areas within Defence did the job they were required to do, when they were required to do it. CHAIR-Strategic Command would, in the normal course, expect to know this information, wouldn't it? If photographs of people in the water were published which were not true and it concerned a Defence operation, Strategic Command would expect to know that those photographs were not true. Group Capt. Walker-I think that is rather situation dependent. I say that because we are a staff organisation, not a command organisation, and we therefore monitor what is happening in the chain of command. The operation here was run by the Headquarters Australian Theatre. In my view, the nature of the photographs as they came forward was a single-service, Navy issue in that the purpose of the photographs was a good-news media relations exercise on behalf of the Navy. What Navy would have been hoping for out of that was good publicity: our sailors are doing well. So it was not strictly an operational issue; therefore, we might or might not have become aware of it. CHAIR-What Navy would have been hoping for was doubtless what you have just said. Here was a photograph of Navy ratings in the water, saving people's lives. This was not a case of the Navy being in the water picking up children who may or may not have been thrown overboard; they were actually in the water saving people's lives in an event that occurred a day after the alleged first event. That is a relevant fact for Australians to know, to appreciate the value of the defence forces and the courage that they show in operational circumstances. But Strategic Command, as I understand it-and I am a layman in these terms, not a defence CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1703 expert-sits at the top of the pile with an overview of what is going on everywhere. Wouldn't you expect it to know, at the end of the day, what was happening? Group Capt. Walker-As I say, it depends on the purpose of the information. If the purpose of the information were a single-service good-news story which had little operational implication, then perhaps not. We cannot know everything; we do not want the detail of a whole lot of things. CHAIR-But this is not a good-news story now. Group Capt. Walker-No, it is not. CHAIR-This is a story which is not true. Given some of the remarks that Admiral Barrie has made about perceptions of Defence, harking back to the poor image they had-these are anxieties that he and Admiral Smith have expressed-as a consequence of the Vietnam period, they did not want this to recur. Here is an operational situation in which it could be argued that Defence are the meat in the sandwich again and are being misrepresented. So you really would expect that senior people in the command chain would want to know that, wouldn't you? Group Capt. Walker-Yes, I think they did. As I said, I think Navy headquarters were probably the biggest stakeholders in this story, and I would have expected them to run with it and see it right through to the end. CHAIR-And the evidence is that they did. Group Capt. Walker-I believe so. CHAIR-Thank you, Group Captain. Group Capt. Walker-Can I answer the question about the UNHCR letter? CHAIR-Please do. Group Capt. Walker-I have in my notes: `I am advised that the letter came to Strategic Command and was forwarded to the DLOs in the minister's office on 8 October at 16:20'. Senator FAULKNER-Why would such a letter go to Strategic Command? Group Capt. Walker-I think DIMA forwarded it to us because they thought it dealt with operational matters. Senator FAULKNER-I see. Group Capt. Walker-The last piece of advice here is: `Strategic Command provided no response because the DLOs in the minister's office said they would deal with it'. CHAIR-Thank you, Group Captain. CERTAIN MARITIME INCIDENT CMI 1704 SENATE-Select Wednesday, 22 May 2002 [4.51 p.m.] EDWARDS, Ms Katrina Mary Rubenach, former First Assistant Secretary, Social Policy Division, Department of the Prime Minister and Cabinet CHAIR-Welcome to the inquiry, Ms Edwards. Is it your wish to make an opening statement of any sort? Ms Edwards-Yes, it is. I held the position of First Assistant Secretary, Social Policy Division until 15 December 2001, when I went on leave prior to commencing work in Centrelink. I would like to facilitate the committee's deliberations by providing some details in relation to the events around suspected illegal entry vessel 4 and SIEVX. On the evening of 6 October 2001, Ms Halton called me to advise that another SIEV had been sighted and that the occupants seemed to be prepared to sink their boat, as they were all wearing life jackets. She asked me to assist in contacting members of the task force for a meeting the next morning, in accordance with what was, by then, our standing practice. The meeting commenced at nine o'clock the next morning. According to my notes, Mr Farmer informed the meeting that his minister, Mr Ruddock, was doing a media appearance later that morning and would need an update on what was happening. The meeting was largely devoted to situation updates as events continued to unfold, and consideration of options on how the potential unauthorised arrivals might best be accommodated. A number of people were commissioned to obtain information in order to pull together a decision note for the Prime Minister that evening. My notes indicate that at 9.15 a.m.-although this time would have been approximate-an update on the situation was received, to the effect that the potential unauthorised arrivals were jumping in the water, and children were being thrown in. As I indicated in my statement to Ms Bryant, I did not record who the information first came from, but I had thought it was Group Captain Walker. I do recall that, around this time, a number of members of the group- including, I thought, Ms Halton-received calls to the effect that people and/or children were in the water. In response to Mr Farmer's initial request for `media lines', a term which we used to refer to factual talking points and reiteration of standard lines, the group started assembling the information that had been received into a logical order. My notes indicate that the group also noted that the government's position was that any new unauthorised arrivals would not be brought to mainland Australia. Before this process was complete, Mr Farmer received a phone call that he announced was from Minister Ruddock. Mr Farmer pulled back somewhat from the table, but intimated that he wanted members of the group to listen in to check that he was reporting what we had been told correctly. I recall that a number of members of the group, including, I think, Ms Halton, were engaged in other mobile phone conversations at this point. As has previously been advised by her, Ms Halton developed a draft template of the note for the Prime Minister prior to the commencement of the evening meeting, and the group spent the time redrafting it, adding additional information and making corrections. The meeting started at around 5.30 p.m., with the same group as in the morning. Air Vice Marshal Titheridge arrived somewhat later. I have since established from Department of the Prime Minister and Cabinet security records that he CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1705 entered the building at 6.25 p.m. 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 been completed. As I indicated in my statement to Ms Bryant, over the next day or so I and my group con- tacted Strategic Command to confirm the original advice and to obtain further details. Having reviewed the records to refresh my memory, I am confident we started our inquiries on 8 Octo- ber, following receipt of DFAT sit rep No. 59. 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 fol- low up to obtain further details of the incident. 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 October. Ms Halton was not contactable at the time that the chronology was received; she was absent because she was at a meeting in Melbourne that day. In the course of the afternoon, my staff advised me that there were a number of inconsistencies in the document, which we then pursued with Strategic Command. We did, I think either at this point or possibly earlier, ask that Strategic Command attempt to confirm the events directly with HMAS Adelaide. This request was rejected. In the light of this, I asked Ms Halton's executive assistant to let me know as soon as Ms Halton arrived in the building. Once called, I hurried to the office with a copy of the chronology and some talking points we had prepared that reflected the apparent uncertainty about the events. 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 original claims. She then made a series of phone calls, which I understood were to members of Mr Reith's office. In the course of these calls she was advised 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 members. This follow-up occurred at the expense of my being able to brief Ms Halton effectively on the other substantial developments of the day, which were to be the subject of discussion at the evening task force meeting. The next morning, photos that appeared to support the original claims were in the newspapers, and I do not recollect actively pursuing the matter further as it appeared to have been settled. Neither then nor at any time subsequently did any Defence officer directly, or through my staff, advise me that the photos had been incorrectly attributed, that the video had been inconclusive or that the statutory declarations were inconsistent and, on balance, did not support the original claims made. In coordinating exercises of this kind, the Department of the Prime Minister and Cabinet necessarily relies heavily on advice and input from all the relevant agencies through their official representatives on task forces. It is for this reason that task force meetings almost CERTAIN MARITIME INCIDENT CMI 1706 SENATE-Select Wednesday, 22 May 2002 invariably start with a run around the table, seeking updates from each agency. Accordingly, in the absence of any advice, formal or otherwise, and the publication of the photos, I understood there to have been a considerable weight of evidence gathered, including a video and crew statements, that supported the original claims. At the time I spoke to Ms Bryant last year, I could not pin down the date when I learned of doubts around the photos and around the incident itself. In the light of subsequent evidence, I am confident that it was 8 November. I was absent on leave on 7 November and, on arriving at work, was informed of the Defence tearoom gossip relating to the incorrect attribution of the photos. I also read the media reports that naval officers had told Christmas Islanders that the in- cident had not happened. I then heard Admiral Shackleton's comments on that day. In relation to SIEVX, I was absent on leave in the week prior to 22 October. At the People Smuggling Task Force meeting of 22 October there was a discussion about SIEVX. My recollection is that Coastwatch was seeking to test the assessment of whether or not it had in fact departed. As others have testified, it was not unusual for multiple departure dates to be reported for the same boat, for boats to divert en route or to otherwise be delayed. The meeting was told that the boat had not been spotted and that there had been no calls from relatives, who are often well briefed on when to expect an arrival. On the other hand, the original report had seemed firmer than some. As I recall, on balance, the conclusion was drawn that the assessment was not sufficiently firm as to warrant passing the information to AusSAR at that point. The Coastwatch subsequently advised that it had in fact passed the information that the boat was overdue to AusSAR that day and, indeed, while the meeting was in progress. On 23 October the task force was briefed on the sinking by, I think, the AFP representative who was able to provide accounts of the voyage from survivor testimony. According to that the brief, the boat had in fact sunk on 19 October. CHAIR-Thank you very much. Senator FAULKNER-Could I take you back to the People Smuggling Task Force meeting of 7 October, where I think you were the note taker or minute taker? Ms Edwards-That is correct. Senator FAULKNER-I want to deal with this issue about the phone call between Mr Farmer and Mr Ruddock. I am just trying to get this clear. Mr Farmer had indicated that he stayed at the table, effectively, so people could listen to the conversation that he was having. Ms Halton, in her testimony, indicates that she did not hear or overhear the conversation-or Mr Farmer's end of the conversation; obviously she could not hear Mr Ruddock's end of the conversation. To what extent were you able to listen to Mr Farmer's end of the conversation that he was having with Mr Ruddock at that time? Ms Edwards-I heard a large part of it, but I would not say that I heard all of it. There was a lot of movement around the table, and I was a little bit separated from Mr Farmer. Senator FAULKNER-Was it your impression that Mr Farmer was making efforts to try and ensure that people were able to hear what he was saying? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1707 Ms Edwards-I think he was particularly concerned about his own officers who were seated, I think, reasonably near to him, but yes. Senator FAULKNER-Do you have any recollection of whether Ms Halton might have been able to hear or not hear that conversation or parts of that conversation? Ms Edwards-As I said in my opening statement, my memory is that she was actually on the phone at that point. Senator FAULKNER-You talk about `media lines' as being a term which we use to refer to factual talking points and reiteration of standard lines. You are saying that that is how you define that term. `Media lines' was commonly used terminology in the task force, wasn't it? Ms Edwards-Within my group, yes. It was simply a straight factual set of talking points, in point of fact, that we assembled so that people knew exactly what the current situation was. Senator FAULKNER-Focusing on the actual issue of children overboard and when this first comes to light, you had indicated in your statement to Ms Bryant-and you have reiterated that today-that you thought it was Group Captain Walker. But I think you are outlining a situation in relation to the task force meeting where there was a lot going on-there were a lot of different conversations; I assume some of the people were on the phone. It sounds like a bit of a shemozzle, actually, but I am sure it was terribly well organised. Is that the way it always worked at the People Smuggling Task Force? Ms Edwards-Sometimes people took their phones outside, but because there was so much happening people were anxious to share information as quickly as possible on that occasion. So it was not always clear exactly where things came from. Senator FAULKNER-Was that the norm? Ms Edwards-I would not say it was the norm, but it was not an unusual occurrence. Typically, we had task force meetings when things were happening, and events could unfold very quickly. Senator FAULKNER-I think you are really saying that you are not now absolutely certain how this issue first came to the task force. Ms Edwards-No. In the light of the evidence of others, I accept that. Senator FAULKNER-Fair enough. Are you clear, though, about how claims of children being thrown overboard came to your attention? Ms Edwards-Yes. Senator FAULKNER-I am not 100 per cent sure whether these are one and the same thing. Ms Edwards-I am not quite sure that I understand the distinction. CERTAIN MARITIME INCIDENT CMI 1708 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-If you are not sure whether this may or may not have come from Group Captain Walker, I am wondering whether the matter that came to your attention is the same in your mind as the matter that came before the task force. I am wondering if there is a distinction there. Ms Edwards-No. I am confident that I learnt of it at that meeting. I am confident-and my notes indicate-that it occurred some time around 9.15. Who it came from, I didn't as I said, specifically note at the time, but there was no doubt in my mind that that was where the information came from-and that was subsequently passed to Mr Ruddock. Senator JACINTA COLLINS-Did you have an impression that Ms Halton already knew that information? Ms Edwards-Not at the beginning of the meeting, no, because my notes suggested that she started doing a summary of the previous situation and she did not mention the children at that point. Senator FAULKNER-Was there a lot of excitement in the room at the time? Ms Edwards-People were certainly concerned, yes. Senator FAULKNER-Did anyone at the task force meeting relate this to the election campaign? Ms Edwards-No, I do not believe so. We were very much concerned with developing handling options for the group that was arriving. We were preoccupied with developing the options and the task that was at hand. Senator FAULKNER-You can say to us that no-one mentioned the election campaign? Ms Edwards-Absolutely. CHAIR-Can I ask a question? It is on a moment back in time. Did the media lines that were prepared specifically say that children were thrown overboard? Ms Edwards-We did not ever get to the point of writing them down because, as I stated, the call came through before we had completed working through-and I think we were never quite looking at necessarily producing a written document that morning. It was more that Mr Farmer wanted to be clear on what the state of play was. If you are asking whether that was what he passed on, in my recollection it was, yes. CHAIR-I thought it was later that day, at the second meeting, that the media lines were actually prepared. Ms Edwards-No. Later that day, we produced a note for the Prime Minister in that meeting. CHAIR-Did that note specifically say that children were thrown overboard? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1709 Ms Edwards-Yes, it did. CHAIR-Specifically? Ms Edwards-Yes. It was by way of context on the options for the handling. I believe you have a copy of the note. It was not a note for media purposes specifically. It was a decision note on options for the handling of the arrivals. CHAIR-How did it say it? Did it say that this was an allegation or a fact or a discredited allegation? Ms Edwards-I do not believe it was caveated in any way, but I will read you the relevant section of the note. It says: Once in the contiguous zone, the HMAS Adelaide fired volleys in front of the vessel and boarded and returned it to International waters. This has been met with attempts to disable the vessel, passengers jumping into the sea and passengers throwing their children into sea. CHAIR-That was how the report went to the Prime Minister? Ms Edwards-That is correct. Senator FAULKNER-Later, you say that you have a vivid recollection that you pointed out to Ms Halton the footnote that there was no evidence. Ms Edwards-Yes. CHAIR-Did you also suggest therefore that the note that had gone to the Prime Minister should be corrected as a consequence? Ms Edwards-I am not sure that we got that far. The first issue was clearly to verify the current state of play. Strategic Command had been telling us a very similar message for the previous couple of days, which was that they had no evidence within their holdings, but that did not mean that there was no evidence. They were aware that things happened at higher levels. Senator FAULKNER-Who was `us'? Ms Edwards-My division. There were, I think, three people involved in discussions with Defence at various times, but certainly I had that conversation with Group Captain Walker. Senator FAULKNER-Who would those three people be? Ms Edwards-My recollection is that the main officer concerned was Matt Healey, and I think he had a number of conversations, but I think Catherine Wildermuth and possibly Rachel Stephen-Smith were also involved. Senator FAULKNER-So this is around-what date are we talking about in early October? CERTAIN MARITIME INCIDENT CMI 1710 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-We held a series of conversations on the 8th, 9th and 10th. Senator FAULKNER-And who were the Strategic Command people who were saying this to you? Ms Edwards-I believe I had at least one conversation with Group Captain Walker, but I am not sure who the other officers concerned were. I believe the watchkeeper was probably one, but beyond that I could not say. Senator FAULKNER-So there was clarity even in the informal discussions that Strategic Command were having with officers of the Department of the Prime Minister and Cabinet, that there were concerns about the accuracy of the claims that children had been thrown overboard? Ms Edwards-No, I would not say that. What they were telling us was that they did not have in their possession any written record which mentioned the children being thrown overboard. They made it clear to us that that did not mean that it did not happen, because they were not privy, quite often, to the operational detail of material that was relevant. Senator FAULKNER-So there is no primary source-a signal or other evidentiary support for children being thrown overboard? That would be the right way of interpreting it, would it? Ms Edwards-None within the possession of Strategic Command. That did not mean that there was not one. We were well aware that not all material went to Strategic Command; it was a selective process based on assessments in the Defence system. Senator FAULKNER-But obviously there are some significant concerns if more than one officer from Strategic Command and more than one officer in your own division are being informed of this. Ms Edwards-That is correct. Senator FAULKNER-Doesn't this set off some alarm bells? Ms Edwards-We were looking for further details around the events, because all we had had was the original report, so of course we wanted to follow up the basis for it and the further details about exactly what had happened and when, and that is why we asked for the chronology. Senator FAULKNER-The only further details that come indicate that there is no supportive written evidence of the claims that children had been thrown overboard? Ms Edwards-No- Senator FAULKNER-In fact, all the evidence goes in the other direction, doesn't it? Ms Edwards-There was no evidence going in the other direction. The footnote was quite clear. It simply said that Strategic Command were not aware of what the answer was. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1711 Senator FAULKNER-But your contact with Defence, for the purposes of the People Smuggling Task Force, is Strategic Command. Ms Edwards-That is correct. Senator FAULKNER-They are the contact group, they are filtering the information, and they are the liaison point for PM&C and Defence in relation to these activities, aren't they? Ms Edwards-Yes, but it had been- Senator FAULKNER-It is the interface, isn't it? Ms Edwards-But they had not been privy to the original information. Group Captain Walker had not been aware of the original information, so he told us on the subsequent days, and I believe at the evening meeting on the Sunday. The fact that he had not heard the original information suggested that there was an information loop going on that they were not party to. Senator FAULKNER-Yes, but Group Captain Walker seems to be a very careful person. He writes or clears a number of reports, and not one of them mentions children being thrown overboard. Ms Edwards-That is correct. Senator FAULKNER-Again, does this set off any alarm bells? It is a bit hard to bat the blame back over the net to Group Captain Walker. He has actually committed this to writing or cleared documents which do not mention children being thrown overboard at all. Ms Edwards-And that is exactly why we were pursuing the issue with Strategic Command and asking them to take it up further. Senator FAULKNER-People were not satisfied that the information being supplied by the group captain or the officers in Strategic Command was accurate? Ms Edwards-We were not satisfied that we had sufficient details around the events. We had the initial report. There was no particular reason to doubt it, except that there was no follow-up, and naturally we wanted to have the details of what exactly had happened. Senator FAULKNER-But it did not suit either, did it? It did not suit the political imperatives. Ms Edwards-With respect, I do not think that that was the issue. In fact, the Prime Minis- ter's office had specifically asked us if we were following up the issues, and we did. Senator FAULKNER-Good. When did that contact occur? Ms Edwards-Mr Jordana rang us. I am not sure whether it was the 8th or the 9th, but he spoke to either Ms Halton or me-or perhaps both; I am not sure that I recall now. CERTAIN MARITIME INCIDENT CMI 1712 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Of October? Ms Edwards-Sorry, October. Senator FAULKNER-What did he say to you? Ms Edwards-He asked whether we were following up on the events, and we assured him that we were. Senator FAULKNER-Is that all he said? Ms Edwards-I do not recall anything else. It was just an `Are there more details?' kind of conversation. Senator FAULKNER-What were you able to say to him in response to his question, `Are you following up on events'? Ms Edwards-The answer was yes. Senator FAULKNER-You were able to assure him you were? Ms Edwards-Yes. Senator FAULKNER-That was the end of the section, wasn't it? Ms Edwards-At that point, yes. Senator FAULKNER-Until when? Ms Edwards-I do not recall another conversation that I had with Mr Jordana on the issue at this point, but I believe that Ms Halton has said that she did have a conversation with him on the 10th. Senator FAULKNER-Anyway, there is not a skerrick of supportive evidence that children had been thrown overboard that was in your possession. But, more importantly, there is a lot of informal contact that we were not aware of, between you and Group Captain Walker and others from Strategic Command, reinforcing the fact that there was no supportive material-no signals or other reports. Ms Edwards-My recollection is that we were asking for further details. They were telling us that they were assembling them and seeking to pull together whatever material was available. We were attempting to acquire a chronology of events, which they informed us they were pre- paring. Senator FAULKNER-And did send. Ms Edwards-And did send. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1713 Senator FAULKNER-And other written reports went from Strategic Command to PM&C too. Ms Edwards-Yes, that is correct. On the 9th, there were some reports on the events of the sinking and indeed we obtained some factual material on the sinking the previous day. Senator FAULKNER-But if you go right back to 7 October, was anyone at the task force meeting actually sceptical about this information that Mr Farmer passed on to Mr Ruddock? Ms Edwards-No, there was no particular reason to be, because we had had details of similar kinds of incidents at various points along the way. It was not unusual for these situations to be extremely tense. We had never had any problems in terms of the accuracy of the information provided by Defence. Senator FAULKNER-So it is a standard operating procedure to make these sorts of things public via a minister without confirmation? Ms Edwards-It was standard operating procedure for Defence to provide us with ongoing briefing on exactly what was happening. Senator FAULKNER-Yes, but this did not come from Defence, did it? Senator JACINTA COLLINS-This was instigated by a minister. Ms Edwards-It came via Defence, because, as I understand it, Ms Halton was briefed by Air Vice Marshal Titheridge. Senator FAULKNER-Yes, but what did Group Captain Walker, who was actually present, say? Ms Edwards-He was present in the morning and he was not, according to subsequent testimony, away-although, as I say, I do not recollect that. But, in the evening meeting, Air Vice Marshal Titheridge was present. He was there while the document was being considered. In some cases- Senator FAULKNER-He had come back from the races. Senator BRANDIS-Let the witness finish her answers, Senator. Ms Edwards-I am not sure whether or not Air Vice Marshal Titheridge had taken the chance to have himself briefed by his officers previously, but he had clearly been making phone calls and receiving updated briefings and seemed to be aware of the situation. Senator JACINTA COLLINS-What time did the evening meeting finish? CERTAIN MARITIME INCIDENT CMI 1714 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I do have some details of that in my notes. The evening meeting finished around 7.50. It may have been slightly earlier. There were people leaving the building around that time. Senator FAULKNER-Just coming back to the information that was passed on to Minister Ruddock: it is true that no-one at the task force thought confirmation was warranted? Ms Edwards-It was not obvious that any other confirmation was possible. We had received information in the usual way. Senator FAULKNER-What was the usual confirmation that occurred? Ms Edwards-A phone briefing was normal, to provide updates as they occurred. Senator FAULKNER-But, you see, Group Captain Walker was there, wasn't he? Ms Edwards-Yes. Senator FAULKNER-Did anyone think to ask the Defence representative who was there? Ms Edwards-Yes, but he was not aware of the information and it clearly had not come in through his normal system. Senator FAULKNER-No, that is right. But that did not stop it being made public. Everyone is falling over themselves to get this stuff out there. Ms Edwards-I do not think that is the case. There was simply a request by a minister to be briefed on the latest situation. It was up to the minister how he used that information. Senator JACINTA COLLINS-But it was not the minister who sought to be briefed on this occasion and who actually first used the information. It was a different minister. Ms Edwards-The message we had that morning was that Minister Ruddock was going to be doing some media later that morning and wanted to be briefed on the current situation. Senator JACINTA COLLINS-Your understanding, then, is that the special arrangement was organised for Minister Ruddock, not Minister Reith? Ms Edwards-I was not aware that there was a special arrangement at the time. There did not appear to be anything particularly special about it from our perspective. It was simply a minister asking to be briefed and that is a perfectly normal process. Senator JACINTA COLLINS-I think you misunderstand my question. You had the minister asking to be briefed out of the IDC. The special arrangement I am talking about was the provision of that information to the IDC at the special request, as we understand it, of the Minister for Defence-although there is some confusion that it might have been for the Treasurer. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1715 Ms Edwards-I was not aware at the time of any special arrangement. It was normal to ensure that the task force was being kept up to date as quickly as possible on the latest events. Senator JACINTA COLLINS-Did you hear the conversation with Minister Ruddock? Ms Edwards-I heard parts of it. Senator JACINTA COLLINS-Did you hear any discussion as to the nature of the report? Ms Edwards-No, not particularly. Senator JACINTA COLLINS-You did not hear any questions about how this information had been presented to the IDC and its likely veracity? Ms Edwards-Not that I recall but, as I say, I am not sure that I heard all of the conversation. Senator JACINTA COLLINS-Do you recall Group Captain Walker raising any issues about the veracity of the information? Ms Edwards-I believe that in the afternoon discussion he mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there had not been. But he reiterated that this was not abnormal. Often information flows happened at a substantially higher level than him. Senator JACINTA COLLINS-But when you say, as you said in your statement to Ms Bryant, that there was no new information and that the issue was not pursued, do you mean there that Group Captain Walker was not able to provide any corroboration of the earlier report at that point in time? Ms Edwards-That is correct. Senator JACINTA COLLINS-So it is not so much that there is no new information but that there is no corroboration of this telephone reporting to the IDC? Ms Edwards-My recollection is that Group Captain Walker had not been able to provide any updated information on what had occurred, nor had he been able to validate the `children' issue. Senator JACINTA COLLINS-So there had been no validation? Ms Edwards-My reading of what he said was that there was no new information. Senator JACINTA COLLINS-Yes, but I suppose there is a difference between a `there is no new information' statement and a `there is no validation' statement. Ms Edwards-There is, and I think that my reading of it was that both those issues were the case. He did not have any additional information to provide to the IDC on what had happened. CERTAIN MARITIME INCIDENT CMI 1716 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Which further indicated that there was no validation. Ms Edwards-No, I suppose that, had he said that there was a lot of detail on what had happened and it did not mention children, that would have been a different thing. That was not what I understood him to say. Senator JACINTA COLLINS-We need to be quite clear here and understand precisely what you did understand him to say, because he has reported to us elsewhere that he went back to Defence and combed through every report that was available and could find no mention. That was not your understanding of how he presented that to you? Ms Edwards-Yes, that was my understanding but, as I understand it, there was not anything in those reports which added to the knowledge of the task force. Senator JACINTA COLLINS-I understand that, but the presentation which was put earlier simply says things such as what you have said in this statement-`no new information'. I put to you that that is a very different message to `this is an unverified report'. Ms Edwards-`There is no new information' encompasses both elements of that. Senator JACINTA COLLINS-I know it encompasses it, but it presents it in quite a different way to saying, `There is no verification of the report that was sent to the Prime Minister this morning.' Ms Edwards-No, the report had not been sent to the Prime Minister at that stage. The report was sent in the evening, following that meeting. Senator JACINTA COLLINS-Okay-well then, indicating in the report to the Prime Minister that there is no verification of this statement. Senator BRANDIS-Did they doubt the report? Senator JACINTA COLLINS-Because it is unverified. CHAIR-Because there is no evidence for it. Senator BRANDIS-I think Senator Collins is confusing verification with corroboration. There was some initial advice given. There was no reason to disbelieve it, but there was no additional information later in the day. Is that not the position, Ms Edwards? Ms Edwards-That is correct. Senator JACINTA COLLINS-Thank you very much for your help, Senator Brandis- Senator BRANDIS-That is all right; any time. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1717 Senator JACINTA COLLINS-but I was actually adopting the witness's language, and she started the references to verification. I am putting to her, with all due respect, that there is a difference between a statement that something is unverified and a statement that no new information was made available. I might take this opportunity to go to some other areas in terms of the detail of your opening statement, before we go back to Senator Faulkner. You have indicated that the evening meeting finished at 7.50 p.m. and that Group Captain Walker remained for the bulk. Do you know from the records what time it was when he left the building? Ms Edwards-Yes, I do. He left at 1926 hours. Senator JACINTA COLLINS-At 7.26 p.m. And you say in your statement, `... once the Defence related material had been completed.' Ms Edwards-Yes. My recollection is that we had gone through a number of sections which dealt with matters from Defence, and he made some comment to the effect that, `If we have done Defence, can I leave now?' which he was given permission to do by Air Vice Marshal Titheridge. Senator JACINTA COLLINS-Did any of that Defence related material relate to the component of the report that you read out to us earlier? Ms Edwards-Yes, we went through the report line by line and people made amendments, changes and added in caveats where they felt that was appropriate. Senator JACINTA COLLINS-What is an example of some of the other caveats that were added in? Ms Edwards-I cannot recall specifically. If I hunted through the note-which I believe you do have a copy of-I would probably find one. I think there was one in relation to the numbers of people, for example. Indeed, we said in the very first or second sentence: The boarding party report that there are 90 men including 4 Indonesian crew, 42 females and 54 children but this number may be unreliable. So we did quite carefully go through the note and make sure that the statements were, to the best of our knowledge, accurate. Senator JACINTA COLLINS-In the morning meeting, would Group Captain Walker have been aware of the nature of the report that children had been thrown overboard? Ms Edwards-He was present at the meeting and heard the report, yes. Senator JACINTA COLLINS-Can you describe how it was reported to the meeting? Ms Edwards-As I said, I recorded in my notes that a call came through at around 9.15 a.m., and then whoever it was who received the call reported to the meeting that people were jumping in and throwing children overboard. CERTAIN MARITIME INCIDENT CMI 1718 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Our problem is this: Air Vice Marshal Titheridge says to us that he does not recall many things but, if he had reported this to the IDC, he would have put a caveat in his report in terms of the nature of the original report. Do you recall it being reported to the IDC that it was on the basis of a telephone conversation from Brigadier Silverstone? Ms Edwards-No, I do not believe we knew it was from Brigadier Silverstone. It was, as I say, from our perspective, the normal kind of process whereby we were ensuring that the task force was kept up to date with the latest information on what was happening on the scene, and it was reported as being by phone. As far as I recall, that was the only information. Senator JACINTA COLLINS-So if someone had asked you after that meeting what the source of the phone conversation was, what would you have recalled? Ms Edwards-I would have said it was Defence. Senator JACINTA COLLINS-So there was a call from Defence? Ms Edwards-Either a call of information from Defence or information indirectly from Defence. Senator JACINTA COLLINS-You said a moment ago that you had never had any reason to doubt or to have concern about information from Defence prior to this occasion. Ms Edwards-That is correct. As far as I know, we received a large volume of information in often tight time frames and difficult circumstances. While timeliness was sometimes an issue, there were no other problems that I am aware of throughout that period in relation to accuracy. Senator JACINTA COLLINS-Then on this occasion you were not aware that this infor- mation was by nature of a special request, were you? Ms Edwards-No, I was not. Senator JACINTA COLLINS-How does your representation of the reliability of information from Defence previously sit with reports that this committee has received as to frustrations in dealings with-and information from-Strategic Command? Ms Edwards-There were certainly frustrations but, as I say, they were on the level of detail and the timeliness of information. There were often substantial lags in receiving detailed information, and the kind of information that was typically provided to Strategic Command appeared to be very highly summarised. Senator JACINTA COLLINS-I will go to the second page of your statement where you say, regarding the chronology, that `my staff advised me that there were a number of inconsistencies in the document'. What were those inconsistencies? Ms Edwards-I cannot recall in detail, but I believe that if you counted the number of people that had jumped overboard there were more than Strategic Command reporting in their CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1719 summary notes. I did a quick count before coming here and found at least 16, whereas the number was either 14 or 15. There were inconsistencies in timing-that kind of thing. Senator JACINTA COLLINS-Some of which still exists. Ms Edwards-Sorry? Senator JACINTA COLLINS-Some inconsistencies in timing still exist. Ms Edwards-Indeed. Senator JACINTA COLLINS-But those inconsistencies were within the chronology? Ms Edwards-Yes. Senator JACINTA COLLINS-Do they remain within the chronology as it stands now? Ms Edwards-I am not sure what the state of the chronology is at this point. Senator JACINTA COLLINS-Would you look at it? Ms Edwards-Do you mean that it is still inconsistent compared to that original document? Senator JACINTA COLLINS-The chronology that we have been provided with is the one which has the footnote. I am assuming we are talking about the same document except that you are perhaps referring to an earlier draft. Ms Edwards-No. The document that you have been provided with is the one that we are talking about. It remains inconsistent in instances. Senator JACINTA COLLINS-Going back a little bit earlier to your statement, you indicate that you started making inquiries following the receipt of DFAT's sit rep 59: I can remember being concerned over the lack of a mention of children or people being pushed overboard. That is essentially the same concern that Group Captain Walker was indicating after he went back to Defence and looked through documents there. They contained no reference to children although-correct me if I am wrong-you indicated to us you were not aware that his concern was so based the day before. Ms Edwards-No. Group Captain Walker, as I understand it, said that he had received no written reports that mentioned children, but he reiterated that that did not mean that had not happened, because there were information flows happening at high levels. I think that either on that evening or at some other point in those days we had a conversation about what the nature of those flows was and he suggested there were a number of levels at which members of the Defence Force spoke to each other, spoke to ministers' officers and briefed CDF and others. CERTAIN MARITIME INCIDENT CMI 1720 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Going back to DFAT sit rep 59, your concern here was self initiated? You saw DFAT sit rep 59? Ms Edwards-Yes. I saw DFAT sit rep 59, and I believe I had a conversation with Ms Halton around that time and we agreed between us that it would be prudent to pursue further details. Senator JACINTA COLLINS-Is it normal for you to be perusing DFAT sit reps or were you doing so for a particular reason? Ms Edwards-No, I received them every day. Senator JACINTA COLLINS-So between 8 October and 10 October you made vigorous inquiries of Defence, including seeking-and then getting-the chronology of events? Ms Edwards-Yes. Senator JACINTA COLLINS-You recall handing Ms Halton a copy of the chronology, which from her evidence she does not recall receiving? Ms Edwards-Yes. I accept that she does not recall seeing it. Senator JACINTA COLLINS-You also indicate that you produced a copy of talking points. Could we be provided with a copy of that document? Ms Edwards-I believe you already have been. They are a part of Ms Bryant's package. Senator JACINTA COLLINS-So that is what you are referring to. Ms Edwards-Yes. Senator JACINTA COLLINS-At the end of that point, you said: This follow-up with Mr Reith's office occurred at the expense of my being able to brief Ms Halton effectively on the other substantial developments of the day, which were to be the subject of discussion in the evening's task force meeting. What do you mean by that? Ms Edwards-We were having a task force meeting within about 15 minutes or so of Ms Halton's arrival back in the office, as I recall. The agenda for that meeting covered a range of other issues, on some of which there had been developments in the course of the day. As I recall, we had about a 30-second discussion on some of those, because we were preoccupied with chasing down the material relating to the chronology. Senator JACINTA COLLINS-Do you recall this because there were other substantial issues that you felt were not dealt with? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1721 Ms Edwards-They were dealt with in the course of the meeting; normally I would have preferred to have discussed them with Ms Halton beforehand. Senator JACINTA COLLINS-By this statement, do you mean Ms Halton gave priority to following through the report that was made to her with respect to the chronology? Ms Edwards-Yes. Senator JACINTA COLLINS-Do you recall her speaking to anyone other than Mr Reith's office? Ms Edwards-I did not specifically at the time. I understand she did speak to Air Vice Marshal Titheridge as well. Senator JACINTA COLLINS-Do you recall who she spoke to in Mr Reith's office? Ms Edwards-No. I was not sure exactly who they were. I think she worked through the list-Messrs Hendy, Scrafton and Hampton-in the course of the evening. She made a series of phone calls immediately afterwards. I think you have previously had evidence on the times of those calls. Senator JACINTA COLLINS-My recollection was that she indicated that she spoke to the minister. Ms Edwards-I think she had spoken to the minister prior to my arriving. She may have been on the phone to him when I arrived. Senator JACINTA COLLINS-So there was longer than this 15 minutes that you were with Ms Halton? Ms Edwards-Not much more than 15 minutes, no. She had arrived in the building at something like 4.40 p.m. I suspect I came up within one or two minutes of that. She was on the phone when I arrived, but not for very long as I recollect. She made a series of phone calls once I had spoken to her. Senator JACINTA COLLINS-If I recall her evidence, she indicated she spoke to the minister after being apprised of the problems that arose with the chronology. This is not your recollection? Ms Edwards-No. Ms Halton does not recall being apprised of the problems raised by the chronology. Senator JACINTA COLLINS-I thought that she recalled your providing her with a verbal report. Ms Edwards-She recalled my briefing her before the meeting. She does accept that I did brief her, but her recollection was that, when I came in, she had just received a phone call from CERTAIN MARITIME INCIDENT CMI 1722 SENATE-Select Wednesday, 22 May 2002 Minister Reith which mentioned a video. She was therefore keen to track that down. I believe that is consistent with my recollection, which is that she was aware of some form of evidence which seemed to outweigh the chronology. Senator JACINTA COLLINS-I will need to go back and have a look at the Hansard of her evidence, because my recollection was that she recalled your verbal briefing and discounted that because of, as I understood it, a consequent discussion with Minister Reith. But your impression is that she had that conversation before you gave her the verbal briefing? Ms Edwards-That is right. When I gave her the verbal briefing, she seemed to believe that she had been told-and she subsequently told me that it was by Minister Reith-that there was a video. When I arrived, she certainly seemed to be aware of some material that existed and so she made the series of phone calls to Mr Reith's office in the interests of hunting down exactly what that evidence was. It was those phone calls that elicited the existence of the video, the photos and the statutory declaration that was made by the crew, which we felt overrode the rather equivocal comment in the chronology. Senator JACINTA COLLINS-You said a moment ago that she subsequently told you that she had had that earlier discussion with Minister Reith. When was that? Ms Edwards-I do not specifically recall when she spoke to Minister Reith. It is perfectly consistent, but I do not recall it. I am not sure when she said that to me. It was probably in the context of the Bryant inquiry. Senator JACINTA COLLINS-Maybe we should go back. Ms Halton arrives back from Melbourne and you are keen to catch her before the IDC meeting to give her a briefing on a va- riety of issues, the first of which was the chronology. She was on the phone when you arrived in her office, and at that stage you do not know to whom. You then brief her about the chronology. How do you describe the chronology to her? Ms Edwards-I believe I read out the footnote to her and handed it to her, because we went straight to the issue. I think I told her that we had been making some inquiries to follow it down, that there were a number of problems with the document and that there seemed to be a serious concern. She responded by saying that she was aware of some evidence, and I think it was a video. She said, `Let's chase it down,' and she proceeded to do that. Senator JACINTA COLLINS-Did you describe the footnote as a footnote? Ms Edwards-Yes. I handed the document to her and showed her where it was. Senator JACINTA COLLINS-So did you describe it as `a statement at the bottom of this report', or did you describe it as a footnote? Ms Edwards-I believe I said, `We've got the chronology and this is what they have written at the end of it.' Senator JACINTA COLLINS-Which alternatively could be described as a conclusion. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1723 Ms Edwards-If the document itself is a long list of things and it does look like a footnote. Senator JACINTA COLLINS-I am just curious as to whether that is the way you described it at that point in time. Do you recall? Ms Edwards-I do not specifically recall. Senator JACINTA COLLINS-So at that point Ms Halton indicates to you that she is aware of a video? Ms Edwards-Yes. Senator JACINTA COLLINS-Is that all before she then launches into this series of conversations? Ms Edwards-That is all I recall, yes. Senator JACINTA COLLINS-What did she understand the video to depict? Ms Edwards-I do not recall a lot of details. I think she said something to the effect of, `I've heard that there is evidence.' It was no more detailed than that. Senator JACINTA COLLINS-So not even that it was a video; just `I have heard that there is evidence'? Ms Edwards-She may have said a video; I do not recall at this point. Senator JACINTA COLLINS-But at that stage she did not indicate from whom she had heard this or perhaps what that evidence was? Ms Edwards-Not that I recall. Senator JACINTA COLLINS-So you remain in her office as she continues to have a series of other telephone conversations? Ms Edwards-That is right. Senator JACINTA COLLINS-Can you explain those and the results of those inquiries? Ms Edwards-I do not think she got any particular result from the first two phone calls she made, but on the third call-or maybe it was the second-someone said `Yes,' and started to provide a list of things that were being done in terms of evidence. Senator JACINTA COLLINS-Someone? Ms Edwards-I do not recall who it was. She reported the conversation as saying that there is a video, that there are crew statements being collected and that there are photos. CERTAIN MARITIME INCIDENT CMI 1724 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Then what happened? Ms Edwards-At that point we went to the task force meeting. Senator JACINTA COLLINS-I am sorry, I thought you said a moment ago that she spoke to Air Vice Marshall Titheridge. Ms Edwards-Sorry, I believe from subsequent evidence-and I am not sure I knew that at the time-that one of the phone calls she made in that list was to Air Vice Marshall Titheridge. Senator JACINTA COLLINS-So we had Titheridge and-was it Hampton? Ms Edwards-I do not recall the order of the phone calls, but it is in the transcripts. Senator JACINTA COLLINS-I am not asking about the order; I asking about the people. Ms Edwards-At the time I was not exactly sure who she was talking to, but I believe it is in the evidence and she provided some material from the phone records. Senator JACINTA COLLINS-So, in your mind, the conclusion of those inquiries, some of which occurred after the IDC meeting, was that she had been assured that there was video mate- rial, photographic material and statutory declarations in the process of being prepared, which all provided evidence to corroborate the earlier report? Ms Edwards-That is correct. Senator JACINTA COLLINS-I have two sets of talking points here, one dated 9 October and one dated 10 October. Which one did you give to Ms Halton on this occasion-the one dated 10 October? Ms Edwards-The one dated 10 October. Senator JACINTA COLLINS-So unlike the earlier one, the second set includes the statement that `shots were fired across the bow'? Ms Edwards-Yes. That is correct. Senator JACINTA COLLINS-It further states that `15 suspected unauthorised arrivals either jumped or were thrown overboard', which looks incredibly like the wording that was adopted by the Captain of HMAS Adelaide in his reports. Ms Edwards-I believe we lifted that straight from the chronology. Senator JACINTA COLLINS-So there is no reference in these talking points to children being thrown overboard. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1725 Ms Edwards-No. At that point what we did was take the chronology as we had it and prepared material based on that. Senator JACINTA COLLINS-So, once the information provided in the chronology had been debunked by these reports that there was video, photographic and statutory declaration corroboration of the original report, was that then adopted in later talking points? Ms Edwards-I do not believe we provided any further talking points on the issue after that point. We had prepared those in response to the chronology earlier in the afternoon and there did not seem a need to add further material. Senator JACINTA COLLINS-In fact, the earlier day's chronology also does not refer to children. Ms Edwards-The earlier day's chronology relates simply to the sinking of the vessel. Senator JACINTA COLLINS-It refers to the government is unwavering in its determination to combat people-smuggling and that this group will not be brought to the Australian mainland because they are horrible people who throw their children overboard. I think they were the points being made by the relevant minister at the time. Senator BRANDIS-You are not quoting a document, are you, Senator Collins? Ms Edwards-I was going to say that I do not believe that we said that in that document. Senator JACINTA COLLINS-I am sure you did not, but I am sure, for Senator Brandis's purpose, I could find you the relevant quote. Senator BRANDIS-Mr Chair, this is a point of order. As I heard the question to the witness, Senator Collins used words to the effect that she was going to quote from a document. What was quoted from plainly was not a quote from a document. In the flippancy of this hearing we might acknowledge that, but there may be people listening who do not realise that. It really is mischievous to invent a quotation from a non-existing document even to make a rhetorical point. Senator JACINTA COLLINS-Unfortunately, Senator Brandis, on your point of order, the Hansard should show that what I said was that it does not say. Senator FERGUSON-Hansard does not record flippancy, either; it records it as fact. CHAIR-The Hansard record will show what was said, but obviously people should quote what is there and refer to evidence if they are making remarks about what they believe was the case. Senator JACINTA COLLINS-Going back to the concerns with chronology, you say that there were a number of inconsistencies in the document. One of those issues was the number of people that had gone overboard. CERTAIN MARITIME INCIDENT CMI 1726 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-Yes. Senator JACINTA COLLINS-Do you recall any of the others? Ms Edwards-I believe there were some timing issues about when the shots were fired, but I have to say that I cannot now recall the detail. It was not me personally who had been hunting through the details of it; it was one of my staff. Senator JACINTA COLLINS-Moving on to the `tearoom gossip', how was that described to you when you returned from leave? Ms Edwards-I do not have a strong recollection of it other than to the effect that we had heard there was some gossip from Defence that the photos were not in fact what they were represented to be, and I was made aware that Ms Halton was handling the issue, so I did not pursue it further. Senator JACINTA COLLINS-But it was described to you as gossip. Ms Edwards-Yes, it was. Senator JACINTA COLLINS-So you can corroborate that at that stage it was being treated within the department as gossip? Ms Edwards-Yes. Senator JACINTA COLLINS-You also say that you then heard Admiral Shackleton's statements on that day-both statements? Ms Edwards-Yes. Senator JACINTA COLLINS-What else did you understand about Admiral Shackleton's statements on that day? Ms Edwards-I heard the statements and I noted the wording of them. Senator JACINTA COLLINS-You had no other knowledge about those statements? Ms Edwards-No. Senator JACINTA COLLINS-Moving on to SIEVX-I am having this checked in the Hansard at the moment. Senator FERGUSON-I hope you are not just padding out until Senator Faulkner finishes briefing the press. Senator JACINTA COLLINS-No, I am not. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1727 CHAIR-I hope not, because I have some questions I would like to ask. Is that what Senator Faulkner is doing? Senator FERGUSON-I imagine. Senator MASON-You saw him walk out the same time as you. CHAIR-Perhaps Senator Brandis might call a point of order on you. Senator BRANDIS-I do not think Senator Ferguson was quoting from a document or misquoting it. He was engaging in a bit of reasonable conjecture, I thought. Senator FERGUSON-Mine was one of observation, Chair. Senator JACINTA COLLINS-My recollection of Ms Halton's evidence was that she does not recall being advised of SIEVX. Yet you in earlier evidence we heard today clearly recollect a discussion in the People Smuggling Task Force meeting of 22 October. Ms Edwards-Yes, that is correct. Senator JACINTA COLLINS-Do you recall Ms Halton chairing that meeting? Ms Edwards-I believe she did chair that meeting, yes. Senator JACINTA COLLINS-Can you explain why Ms Halton might not have recalled that? Ms Edwards-No, I cannot. Senator JACINTA COLLINS-Can you describe for us how you understand that material was dealt with on that occasion? Ms Edwards-As I said, the report came to the group in the usual updating process that occurred at the beginning of each meeting. Coastwatch seemed to be trying to get a sense of how strong a report it really was and whether at this point it was appropriate, based on the weight of the report, to report onwards to AusSAR that the boat was overdue. Senator JACINTA COLLINS-You have said in your statement, on the other hand, that the original report seemed firmer than some. Ms Edwards-Yes. I think the discussion went along the lines-and I had not been privy to the earlier discussions-that this had seemed to be a reasonably firm report. But we were also aware that a large number of reports were continually being made of boats that were going to come but did not appear-because the same boat was reported as leaving on different days, or the boat diverted to an island along the way, or the original report was not a good source or another reason. The discussion, as I recall it, was around those kinds of issues. CERTAIN MARITIME INCIDENT CMI 1728 SENATE-Select Wednesday, 22 May 2002 Senator JACINTA COLLINS-Did the discussion at that stage include the additional report that confirmed the original report? Ms Edwards-What additional report? Senator JACINTA COLLINS-Coastwatch indicated to us today that they had the original report of 20 October indicating that the vessel had departed from Sumar in Indonesia. That was unconfirmed. Then, on 22 October, they had a further report that confirmed that the vessel had departed Sumar and indicated that it was likely overdue and there might be an issue over-I will not use the term `safety of life at sea' because that is debatable-whether it might founder or had foundered. Ms Edwards-I was not aware of the earlier reports because I had not been at work; I had been on leave the previous week. Senator JACINTA COLLINS-What I am asking you is: do you recall, from the discussion on the 22 October, that Coastwatch felt that they were dealing with a confirmed report or was the discussion prior to their having received that confirmation? Ms Edwards-My sense would be that it was prior but I do not have any particular basis for that. My sense was, as I said, that they were wondering what the strength of the report was. Senator JACINTA COLLINS-What time was the IDC meeting that day? Ms Edwards-I understand it started around 3.15 p.m. Senator JACINTA COLLINS-As we understand from Coastwatch today, they had their original report confirming the earlier report at 10.03 that morning but the AFP put a stay on their furthering that information-until they worked out the precise wording so as to deal with any sensitivities with the intelligence-until 1.50 p.m.. So, if the IDC meeting was at 3.15 p.m., it should have incorporated the fact that this was a confirmed report. Ms Edwards-As I said, I do not recall a sense of that, but I had not been privy to the earlier information and it may have been that different people were in the information loops at the task force meeting than had been making decisions in the morning-I do not know. Senator JACINTA COLLINS-Was there any discussion about whether surveillance should be initiated? Ms Edwards-Surveillance? Senator JACINTA COLLINS-Yes. Ms Edwards-By Coastwatch? Senator JACINTA COLLINS-Given the zone, as we heard this morning, it was actually RAAF aircraft that were responsible for aerial surveillance in that region. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1729 Ms Edwards-My understanding-and I may be mistaken, not having been party to the earlier discussions-is that surveillance was occurring and people were looking for this boat. It was part of the nature of the discussion that we had not found it yet. Senator JACINTA COLLINS-This is one of the problems for the committee. We have material from Rear Admiral Smith that indicates that surveillance was occurring at and around Christmas Island and Ashmore Reef and that Navy was very busy with three different SIEVs during that time. But we have no indication that surveillance was occuring closer to Indonesia at that time. So it is unclear, when we hear a report-for instance, like yours-that the boat had not been spotted, whether it was actually being looked for. Ms Edwards-I have no information that I can add; you would need to ask Defence. Senator JACINTA COLLINS-Okay. On 23 October when the task force was briefed by the AFP representatives on the sinking, do you know the source of their material? Ms Edwards-No, I do not. I think they had people on the scene. I believe they may have been liaising with the local police. Proceedings suspended from 6.00 p.m. to 8.06 p.m. CERTAIN MARITIME INCIDENT CMI 1730 SENATE-Select Wednesday, 22 May 2002 CHAIR-Thank you for displaying a considerable amount of patience, Ms Edwards. Can I start with the presumption that you made in your statement to the departmental inquiry that it was Group Captain Walker who may have notified the interdepartmental committee that chil- dren were thrown overboard-that is at the meeting of 7 October. That was your presumption at the time, and I think you said that in your statement. How strongly convinced of it were you? Were you satisfied in your own mind, or was it more that it may have been or that you think it might have been? Ms Edwards-That was my recollection, but I would not put an extremely high weight on it given that I did not specifically note in my notes the particular source. CHAIR-You have heard since, of course, what Group Captain Walker has said? Ms Edwards-Indeed. CHAIR-Does that cause you to revise in your own mind your initial view? Ms Edwards-As I said, I wrote down what I remembered-and my recollection had been that it was Group Captain Walker. But I have heard his evidence, and clearly he seems not to have been the source. CHAIR-So you are now satisfied that it was not him? Ms Edwards-I would say 90 or so per cent, yes. CHAIR-Given his evidence and all the other evidence that this information effectively came from Air Vice Marshal Titheridge, are you able to rake through the coals of memory to give, if you like, a second fix on who it might have been? Ms Edwards-I believe it was probably Ms Halton, given that she recalls receiving a phone call and providing the information. CHAIR-Are you able to say whether Group Captain Walker spoke about this matter in the committee when it was reported? Ms Edwards-I do not recall specific comments in the morning because, as I say, I thought that he was the original source. I certainly recall some comments in the afternoon. CHAIR-What was the nature of those comments? Ms Edwards-As I have said, he reported that there was no new information. CHAIR-If I am right, the words I took down from Group Captain Walker were that he thought Jane Halton announced, `They are throwing children in the water.' Do you recall those words? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1731 Ms Edwards-Not those exact words, but certainly pretty much that substance. CHAIR-Is that the flavour of it? Ms Edwards-Yes. CHAIR-While the words themselves might not be precise, that was the image that was conveyed to you, was it? Ms Edwards-Yes, it was. CHAIR-Do you recall whether there was any discussion as to what proof, evidence or justification there was for that statement? Was there any call for that from the rest of the committee? Ms Edwards-No, it was reported to us as the latest update. We had had several other updates on what was happening on the ground previously. At the beginning of the meeting the state of play was outlined, and there were several calls, as I have said, through the course of the meeting which provided further updates. It was business as usual for these kinds of meetings. CHAIR-Then you adjourned and came back later that day. Before our extended dinner break you read into the Hansard that part of the note that the committee was to pass up to the Prime Minister dealing with the allegation that children were thrown overboard. As I recall the words you read, they were just a direct statement of that proposition-'uncaveated' was the point that I think you were making at that point. Ms Edwards-Yes, that is correct. CHAIR-As you said, later on you became aware of the footnote, and your vivid recollection is that you pointed out that footnote to Ms Halton. That footnote raised a doubt as to whether or not the event may have taken place, didn't it? Ms Edwards-The footnote was quite specific in its wording. As I recall, it said that there was no documentary evidence-in brackets-held by Strategic Command. But that does not mean the events did not happen. I have not got the exact words in front of me. It did not in fact raise a doubt. It made a comment about the nature of the evidence held by Strategic Command. CHAIR-But did it not flash any sort of warning light that this statement, which had been passed to the Prime Minister, was, at that point, not backed by any evidence? Ms Edwards-It certainly raised warning lights in my mind in that for a couple of days we had been pursuing Strategic Command for some details and they had not been able to confirm one way or another what the answer was. CHAIR-You asked Strategic Command to check with the captain of the Adelaide? Ms Edwards-Yes. CERTAIN MARITIME INCIDENT CMI 1732 SENATE-Select Wednesday, 22 May 2002 CHAIR-And they declined? Ms Edwards-That is right. CHAIR-Why did they decline? Ms Edwards-I think they pointed out to me, or one of my colleagues, that they were not part of the chain of command and it was not open to them to do that. CHAIR-Did that then cause you to logically move to the chain of command and seek that information from them? Ms Edwards-No. It had been made clear to us on a number of occasions that that would be completely inappropriate. CHAIR-Why? Ms Edwards-Because, as I understand it, the Defence chain of command is about making sure that the people who have the appropriate authority to give orders give them. That was the purpose of the filtering mechanism that Strategic Command represented. CHAIR-But here you had before you a conundrum that must be a nightmare for most public servants. You had advised the Prime Minister, no less. There is a high premium on getting that advice accurate and true, and the department has a reputation for being precise and fastidious about accuracy. Yet there was this note, and there still remained an absence of any evidence that the statement was true. Did you feel in any way that this was an important matter that ought to be tied down? Ms Edwards-Yes, and that is why I raised it with Ms Halton and we pursued the series of calls to try and tie down what the real state of the evidence was. CHAIR-And that series of phone calls went to Mr Reith's office? Ms Edwards-Yes. CHAIR-And what you obtained from Mr Reith's office was comfort to the view that the alleged event had actually happened? Ms Edwards-Yes. CHAIR-Did you seek from Mr Reith's office at all, or did you ask Mr Reith's office at all, to check with the Adelaide? Ms Edwards-These were not conversations I had but ones that Ms Halton had. But, no, I do not believe she did. There was no need to at that point because we were told that there was a video and statements were being gathered from crew members of the Adelaide, so in effect that evidence was coming. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1733 CHAIR-When did the evidence get there? Ms Edwards-We did not receive it. CHAIR-Were you nervous or anxious that the evidence that was coming, that would confirm the advice that you had given to the Prime Minister, never turned up? Ms Edwards-The photos appeared in the newspapers the next day, so it seemed as if the evidence was there. We had been basically assured that the incident had happened and that there was a body of evidence to support it. As I said, the photos appeared, so there was no reason to pursue the inquiries any further. CHAIR-Yes. I was in Darwin on the day those photos appeared on the front page of the Australian newspaper. When I got out of bed and picked up the copy that had been slipped under my door, I saw those photos. They were just photos of four people in the water, as I recall. Ms Edwards-But they appeared and they were one piece of the story. There was no reason to expect that there was a problem with the remaining pieces of evidence, and certainly we assumed that, if there was, we would have been informed by the Defence representatives on the task force, who we were seeing every day. CHAIR-But you agree that the photos in themselves were not evidence of anything other than people in the water? Ms Edwards-There certainly appeared to be evidence that there had been children in the water. They were accompanied by captions and so forth. It was reasonable to take the evidence at face value. CHAIR-They were accompanied by captions in the newspaper. Ms Edwards-Yes, but we had been told that these were photos of the relevant events. CHAIR-Did you seek from Mr Reith's office a copy of those photographs? Ms Edwards-No, we did not. CHAIR-Did you seek from Mr Reith's office verification that the captions attached to the photographs in the newspaper were true? Ms Edwards-No, because there was no reason to assume anything other than the correct application of the captions. CHAIR-I know, but I keep coming back to this point: in my now misty, long-time-ago ministerial career, in dealing with PM&C, I found them to be firm, authoritative, fastidious and obsessed with accuracy about things, which I think befits what is often regarded as the premier CERTAIN MARITIME INCIDENT CMI 1734 SENATE-Select Wednesday, 22 May 2002 department of all the departments in Canberra. To close the circle, to complete the evidentiary chain, you relied on the newspaper. I find that hard to believe. Ms Edwards-No, we were not simply relying on the newspaper; we were relying on the fact that we had been advised that there was a firm body of evidence. We queried the fact that there did not seem to be some support for it for a few days. Then we were told that there was in fact a very substantial volume of evidence. There was no reason to pursue it further and it was not, after all, the main objective of the IDC to worry about this particular issue. We were preoccupied with managing the arrangements for the unauthorised arrivals-that was where our focus was. In fact, events very quickly became overtaken over the next few days with the next round of issues. CHAIR-When did you learn that the photos were deceitfully labelled? Ms Edwards-I cannot remember when I learnt decisively-probably not for some time later. As I said, I heard the rumour when I came in to work on 8 November, which raised a substantial question about it. CHAIR-The idea would have been lodged at the back of your mind, wouldn't it, that you had advised the Prime Minister of this information, and then seeping through the woodwork almost were question marks like: there is no evidence yet, although you had seen the photos, and then you heard what is called tearoom gossip. This starts to build a picture. Ms Edwards-There was no `seeping through'. On the 10th, we were assured that there was a substantial body of evidence. It was not for another month that we heard anything counter. CHAIR-So when was that? Ms Edwards-As I said, 8 November. CHAIR-How was what has been called `tearoom gossip' presented to you? How did you hear of that? Ms Edwards-I think Ms Bryant told me about it when I came into work. CHAIR-Did she describe it as `tearoom gossip'? Ms Edwards-I cannot remember whether she used the word `tearoom', but she certainly said something to the effect that Harinder Sidhu had made some comments that she had heard some gossip from Defence that the photos were incorrectly attributed. CHAIR-She did not tell you that Dr Hammer had reported it? Ms Edwards-No, I do not believe so. I do not recollect the exact terms that she came to me with, though. But my recollection is that it was just that someone had overheard something at a meeting. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1735 CHAIR-What did this do to your confidence that you had given correct advice? Ms Edwards-It certainly raised a question. CHAIR-How did you go about addressing that question? Ms Edwards-At that point, my understanding was that the issue was being pursued by Ms Halton, and so I did not feel the need to pursue it independently. CHAIR-I would like to go back to the task force. It is true, isn't it, that the task force wanted to be a clearing house for all the information about border protection, people-smuggling et cetera? That was its prime function. Ms Edwards-I would not necessarily say a clearing house. Its aim was to make sure all of the relevant agencies were coordinating appropriately and so knew of the things that interacted with each other. It was not that we had to know absolutely everything; it was that we made sure everyone was aware of the interconnections. CHAIR-There were no written terms of reference for it, though. Ms Edwards-That is correct. CHAIR-Was this understanding of its function articulated in some form to you at any point? Ms Edwards-I do not specifically recall. We had a morning logistics group which was doing a lot of the operational work. Every now and then it would identify an issue that it did not feel it could resolve at the level of the officers involved and would benefit from higher level discussion, and so it would be suggested that that might be something the higher level group might discuss. So I think it probably evolved over a little bit of time. CHAIR-Can you give me a sense of the flavour of your activities? For example, did you discuss possible scenarios of what people smugglers might do and possible counters to those scenarios? Ms Edwards-When we were specifically asked for advice on issues, yes. The normal practice was that these meetings were called when there was something to discuss-a new boat had been sighted or there was some other issue that needed to be dealt with. We would go around the table for everyone to give their update on the latest issues within their portfolios. If there was a specific task to be undertaken, such as to provide advice for the Prime Minister which included options, then we would talk through the options that might be possible. CHAIR-The Navy stepped up its surveillance, signified by Operation Relex. Did that cause you to regard the period that you were on the threshold of or actually entering into as a sensitive period, that there might have been more efforts at people-smuggling in the coming weeks than there were prior to the Tampa? CERTAIN MARITIME INCIDENT CMI 1736 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I think we had been aware prior to the Tampa that there was a large number of people in the smuggling chain, as it were, and that, yes, there would be a fairly intensive period ahead of us. CHAIR-In discussing scenarios, was one of the scenarios that you discussed the possibility that confrontation by the people smugglers might escalate in order to get past the border protection measures that had been deployed? Ms Edwards-Confrontation in what sense? CHAIR-There were the rules of engagement the Navy followed in order to try to stop those vessels coming through. There was a comment-attributed, I think, to Ms Halton-along these lines: `They may be preparing to abandon their vessel'-this is SIEV4-`they are all wearing life jackets.' If you wanted to, you could categorise such comments as saying, `Maybe the people smugglers are ratcheting up the pressure they are putting on the border protection measures that you had deployed.' Ms Edwards-Yes, I think that is true. There was a sense that, as Operation Relex put more pressure on them, the people smugglers would naturally respond and that would impact on the way that people on board the boats were briefed. CHAIR-Had you looked at what people-smuggling activities in other parts of the world had had to deal with when they were trying to protect their borders? Ms Edwards-Yes, there were discussions on a number of occasions on some of the overseas experiences. CHAIR-That would mean that you had looked at the American experience, for example? Ms Edwards-Yes. CHAIR-Compared with the border protection problems that they have got, ours are just a drop in the bucket, aren't they? I think the evidence in the report is that ONA had reported to you that people smugglers in Italy-I think they were Albanian-had thrown children overboard. Were you aware of that? Ms Edwards-Yes. CHAIR-Were you deliberately on the lookout for that type of behaviour? Ms Edwards-I would not say we were deliberately on the lookout for it, but when it occurred and when there seemed to be indications from one source or another, or in terms of actual behaviour, we were certainly aware of the possible context. CHAIR-Had you discussed what might be your response if those things occurred? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1737 Ms Edwards-I do not believe that that particular group got into any of those kinds of issues in any detail. I believe those were probably issues that were being considered by Defence, Coastwatch and others who were dealing directly with the operational detail. CHAIR-Had PM&C discussed it? Ms Edwards-Only at the very broad level. CHAIR-That if children were dropped overboard- Ms Edwards-No, I cannot recall a specific discussion of what would occur in those circumstances; that was a matter for the rules of engagement for Defence, which we did not have substantial involvement in. Senator FAULKNER-Ms Edwards, do you recall the date when you first told Ms Halton about your concerns about the inaccuracy of the `children overboard' claims? Ms Edwards-As I said, I believe we started making inquiries on the 8th. That was not a concern about inaccuracies; that was a concern that we did not have enough detail about the event and we needed to follow up on it. Those discussions continued over the next few days, and it was not until the 10th that we had something in writing which triggered a substantial- Senator FAULKNER-So it was really the chronology, at the end of the day, that made you make the comment that you made to Ms Halton in relation to the claims. Ms Edwards-Certainly, from my perspective, receiving something in writing was a reasonable cause for triggering further inquiries at a higher level. Senator FAULKNER-Ms Halton, of course, told us that she did not remember the conversation she had with you about that. Are you aware of that? Ms Edwards-Yes, I am. Senator FAULKNER-But you are quite definite that you did tell her? Ms Edwards-I am. I believe that our differing recollections are not inconsistent inasmuch as Ms Halton remembers more strongly the call from Minister Reith, whereas I obviously do not because I was not a party to that call, but we both remember the subsequent inquiries that uncovered the detailed evidence that we were led to believe supported the original. Senator FAULKNER-Was it common for Ms Halton to receive phone calls from Minister Reith? Ms Edwards-I would not say it was common, but I believe she had a number of them. Senator FAULKNER-It is my recollection that in this particular case Mr Reith rang Ms Halton. Is that correct? CERTAIN MARITIME INCIDENT CMI 1738 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I do not know. I was not present. Senator FAULKNER-Do you know what the nature of that conversation was? Have you been able to establish that? Ms Edwards-I have only been able to read whatever is in there. Senator FAULKNER-How soon after that phone contact between Ms Halton and Mr Reith was your contact with Ms Halton? Ms Edwards-Based on what both Ms Halton and I recollect she was on the phone when I came into her office. She believes that she was on the phone to Mr Reith, so I think it is a reasonable surmise that she was on the phone to Mr Reith, and Mr Reith told her something about the video or some of the evidence. I came in with the chronology and apprised her of its contents; she felt that that did not fit with what she had been told and so she made some subsequent inquiries. That is how I would reconstruct that afternoon. Senator FAULKNER-I suppose you spent at least a few moments trying to reconstruct that afternoon for the evidence that you gave to Ms Bryant's report? Ms Edwards-Yes. Senator FAULKNER-Did you ever take the view that there needed to be some independent assessment or checking about the doubts in relation to the photographs? Was this a matter that you gave any attention to? Ms Edwards-Do you mean after 8 November? Senator FAULKNER-No, I mean earlier, in October. Ms Edwards-There were no doubts in my mind about the photos early in October. As I have said, I had no doubts until 8 November, when I was informed that there was some gossip around that they were not in fact correctly attributed. Senator FAULKNER-Yes, but it is that gossip that I am talking about. Ms Edwards-At the time I learned of the gossip I knew that Ms Halton already had inquiries in train and so I did not feel the need to set in train my own independent inquiries. Senator FAULKNER-You are not aware of any formal or informal checking of those photographs by PM&C with Defence prior to 7 or 8 November? Ms Edwards-No, I am not aware of any. Senator FAULKNER-Were you ever actually told by anyone in Strategic Command that children had been thrown in the water? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1739 Ms Edwards-At the time of the morning meeting, as I said, my recollection was that it did come from Group Captain Walker, but beyond that I do not believe so. Senator FAULKNER-Did you have an awareness at some stage that no women and girls had been thrown in the water, which Ms Halton may have indicated to us at some point? I tried to turn up the reference but could not find it. I may not be recalling accurately. I thought I had a Hansard record of it but I could not turn it up a few minutes ago. Ms Edwards-I am not sure that I recollect the exact reference. Senator FAULKNER-Why did you come to the conclusion that the photos proved the case? Ms Edwards-I do not think I came to the conclusion that the photos proved the case. We flagged that there were concerns. Strategic Command did not seem to have any evidence to support the incident. However, we were told that in fact they were not in the full loop. There were in fact three parts of evidence of which we shortly afterwards saw one. So there was no reason to think that the other two had any doubts. Certainly we would have assumed that if any doubts subsequently emerged we would be informed. Senator FAULKNER-Do you recall Ms Halton's presentation on 10 October at the People Smuggling Task Force about the `children overboard' issue? Ms Edwards-No, I do not, but I was absent for at least a substantial initial period of that meeting. I took a phone call in her office, and I believe that after I returned she subsequently took some phone calls, so it was a slightly disjointed meeting. Senator FAULKNER-So you may well have been out of the room when that occurred? Ms Edwards-That is correct. Senator FAULKNER-It did not occur while you were in the room, or you do not have any recollection of it? Ms Edwards-Not that I remember. Senator FAULKNER-You are in a unique position, aren't you, because you are the note or minuter taker, effectively. There was a note taker and, when you were present, it was you, wasn't it? Ms Edwards-That is right-well, not on every occasion. There were a number of occasions when other people filled in for me and in the later stages, towards the end of October onwards, Ms Bryant was typically the note taker. Senator FAULKNER-You do not recall, on the 10th or 11th, any comments by the Defence representative or representatives at the task force meeting about the claims? CERTAIN MARITIME INCIDENT CMI 1740 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I am quite certain there were not any on the 11th. As I say, there could have been on the 10th while I was not there. I do not recall any. Senator FAULKNER-You do not know of any decisions by Defence or commitments by Defence representatives at the task force to check or have someone confirm the understanding of the facts about the matter? Ms Edwards-I believe that on the 9th, which was the first task force meeting after the initial Sunday advice, there was a discussion on the need for improved information flows. I believe Ms Halton made a comment to the effect that some checking needed to be done. That was certainly a reflection of some of the discussions that we had been having. Senator FAULKNER-You said to Ms Bryant that it was late October or early November when you became aware of the misrepresentation or wrong attribution of the photographs? Ms Edwards-At the time, I could not remember exactly when it had been and there was not anything to particularly jog my memory about when it was. But I have subsequently checked, and I am absolutely convinced it was not until 8 November. Senator FAULKNER-How have you been able to check that? Ms Edwards-I was looking for when I heard that gossip and when Admiral Shackleton's statement was, because those were the two things that particularly stuck in my mind. Senator FAULKNER-It was the so-called tearoom gossip, if you like? Ms Edwards-That was the first piece. As I said, there were three things that happened to me on the same day. Tearoom gossip by itself, given it was reported as something overheard at a meeting, probably would have caused me to ask questions but not necessarily to discount the original advice. A series of things started to come out from that date onwards that I think raised questions in my mind. Senator FAULKNER-Could you outline for the committee, please, your involvement in the tearoom gossip as you understand it? You were one of the parties to that, I think it is fair to say. Could you outline how you became involved and, as a result of being involved, what action you took? Ms Edwards-I was really not a party to it. As I said- Senator FAULKNER-You were an indirect party, it is fair to say. Ms Edwards-My understanding is that the tearoom gossip had been reported to Ms Halton the previous evening and she had already instigated some follow-up action, and it was just in passing that I was informed that this was around. Senator FAULKNER-Who informed you in passing? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1741 Ms Edwards-Ms Bryant. Senator FAULKNER-Did you understand at the time why Ms Bryant informed you of this? Ms Edwards-Yes. It was normal practice to fill me in on what was happening when there were new developments within the group. Senator FAULKNER-Do you recall what she actually said to you? Ms Edwards-Not the exact words. As I said, it was to the effect that Harinder Sidhu had overheard or had heard at a Defence meeting that someone had overheard that the photos had been misattributed. Senator FAULKNER-As a result of Ms Bryant saying that to you, what did you then do, if anything? Ms Edwards-She said that she had already informed Ms Halton, so I assumed that I did not really need to do anything further at that point. Senator FAULKNER-You did not raise it with anyone? Ms Edwards-No. Senator FAULKNER-You just took it on board? Ms Edwards-Yes. Senator FAULKNER-What about Mr Jordana's request for information on 7 November? Were you aware of that? Ms Edwards-Yes, I was. Senator FAULKNER-Could you explain for the committee what your role was in relation to that? Ms Edwards-I had no specific role. It was standard practice for Ms Halton to keep Mr Jordana informed of developments as they occurred and follow up on advice. I do not believe she specifically requested me to do anything in order to help with that because she already had it all at her fingertips. Senator FAULKNER-So did you have any direct contact with Mr Jordana? Ms Edwards-On the 7th, no. Senator FAULKNER-You just heard about that from Ms Halton? CERTAIN MARITIME INCIDENT CMI 1742 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-That is right. Senator FAULKNER-Were you required to take any action? Ms Edwards-No, I was not. Senator FAULKNER-So, again, it was just a matter that was told to you for your information? Ms Edwards-Yes. Senator FAULKNER-And you did not take any action? Ms Edwards-No. Senator FAULKNER-There was no follow-up? Ms Edwards-No. Senator FAULKNER-But there was, of course, follow-up from members of your division? Ms Edwards-Not from the 7th, no. Senator FAULKNER-I thought there was. Ms Edwards-You may perhaps be thinking of the 8th. On the Monday or the Tuesday-but I think it was probably the Monday-Mr Jordana asked if we were following up, and we assured him that we were. So, yes, there was follow-up from that. Senator FAULKNER-So, as far as you know, there was no other involvement on the 7th from members of your division; it was merely, if you like, the primary contact, Ms Halton? Ms Edwards-That is correct. Senator JACINTA COLLINS-A question that we did not ask earlier was: why was Mr Jordana asking if this was being followed up? What was his concern? Ms Edwards-I do not recollect specifically. I imagine that he was just seeking more details of the incident because the day before we had provided a fairly bare bones report and he would have wanted to have more information relating to it. Senator JACINTA COLLINS-But there were no caveats on the report that children have been thrown overboard. Ms Edwards-No, but this was a fairly major event and it would be natural to want to know a little more about exactly what had happened. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1743 Senator JACINTA COLLINS-That is what I thought, but when we were questioning Department of Immigration and Multicultural and Indigenous Affairs it seemed from Minister Ruddock's point of view that he had no cause to ask further questions, even though he was very closely questioned by the media on such issues as the age and number of the children. So why, when the minister concerned was asked such detailed questions and he did not come back and want more detail, did Mr Jordana seek such? Ms Edwards-I cannot comment on that; I have no information that relates to that. Senator FERGUSON-How would you expect Ms Edwards to know that? How could you really expect her to know? Senator JACINTA COLLINS-She just said that she does not. Senator FERGUSON-I am surprised you asked the question. Senator FAULKNER-In relation to Mr Jordana's contact on the 8th, do you recall who that contact was made with? Ms Edwards-I believe I spoke to him, but I am quite sure that he spoke to Ms Halton. Senator FAULKNER-Do you have a recollection of what he said to you at that time? Ms Edwards-Nothing beyond what I have already recounted, which was that he asked if we were following up on the details of the incident, and we assured him that we were. Senator JACINTA COLLINS-What detail did he seek? Ms Edwards-The exact numbers, the age of the children involved-all of those kinds of things. Senator JACINTA COLLINS-Did he ask whether there were any caveats on the original report or the nature of the original report? Ms Edwards-Not that I recall. Senator JACINTA COLLINS-When you were not able to answer the exact numbers or the ages of the children, did he query why that was the case? Ms Edwards-No, I do not think so. It was the usual situation of him making a request for information and us following up on it. Senator JACINTA COLLINS-So, at that stage, he did not understand the limited nature of the original report? Ms Edwards-I guess he would have been aware that, as with all these reports, we were just getting information as it came to hand. He was aware, I think, of the arrangements that we had CERTAIN MARITIME INCIDENT CMI 1744 SENATE-Select Wednesday, 22 May 2002 where we were getting oral reports. I imagine he was also receiving regular copies of situation reports, and so he would have seen the report from the morning. Senator JACINTA COLLINS-Did he express concern akin to yours that nothing was being mentioned in the DFAT sit reps? Ms Edwards-I cannot recall specifically. He may well have. Senator FAULKNER-Did you take certain actions as a result of this communication you had with Mr Jordana on 8 November? Ms Edwards-Yes. As I have said, I asked my staff and I made a few phone calls to Strategic Command to start seeking a chronology and further details. Senator FAULKNER-Do you recall precisely what you provided to Mr Jordana? Ms Edwards-No, I do not. Senator FAULKNER-Do you know whether you provided the chronology? Ms Edwards-No, I did not. My recollection is that, once we had details of the sinking of the vessel, we did provide some talking points that went through the factual situation around those the next day, and then subsequently, on the Wednesday, we provided him with a copy of the talking points that we produced on that date. Senator FAULKNER-Sorry, when were the talking points produced? Ms Edwards-On Wednesday, the 10th. There were two sets of talking points, in fact-the 9th and the 10th. Senator FAULKNER-And they were produced effectively by the PST? Ms Edwards-The ones of the 9th were produced by my group in my division. The ones of the 10th were produced by my group but I believe they were on the table at the meeting of the 10th. Senator FAULKNER-Did you draft them, or were you part of the drafting group? I doubt if you were, but I just wonder to what extent you were involved at that level. Ms Edwards-To what extent I personally drafted them? Senator FAULKNER-Yes. Ms Edwards-I do not think I personally drafted those ones. I would certainly look at the drafts that were produced- Senator FAULKNER-You would clear them? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1745 Ms Edwards-Yes. Senator FAULKNER-That was your role, more than- Ms Edwards-Normally. Occasionally I might draft something myself. Senator FAULKNER-But basically your role was to clear them before they were progressed? Ms Edwards-That is correct. Senator FAULKNER-Did you send them to a senior officer in the PM&C or effectively straight through to the Prime Minister's office? Ms Edwards-Something like that, I would have-I cleared with Ms Halton throughout this period. Senator FAULKNER-But you cannot say precisely what you provided to Mr Jordana on the 8th? Ms Edwards-I believe we did fax some material to Mr Jordana but I cannot say exactly what it was. I do not believe we produced our own independent written documents. It would have been material such as sit reps. Senator FAULKNER-Had there been any checking of that, given the Bryant committee and the like? Ms Edwards-Yes, I believe there has been some checking but I do not believe it has been conclusive. Senator FAULKNER-So you have not been able to turn up anything? Ms Edwards-That is correct. That is my understanding. I am, of course, no longer an officer of PM&C. Senator FAULKNER-It is not the practice to keep copies of that sort of material? Ms Edwards-It would normally be, but if it was already material that was sitting on the file I guess it could easily have become slightly disentangled from the fax cover sheet. Senator FAULKNER-And was this material that had already been sitting on a file? Ms Edwards-As I say, I am not sure exactly what material was sent, so I cannot say. Senator FAULKNER-Is the file intact? Ms Edwards-Yes, there is a file. CERTAIN MARITIME INCIDENT CMI 1746 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-But is it intact? Ms Edwards-As far as I know. Senator FAULKNER-So stuff is taken out of the file, maybe photocopied or put on the fax, and stuck back in the file? Is that how it works? Ms Edwards-It could have been, although I suspect, given that things were still moving, that they probably had not made it onto the file at that point. Senator FAULKNER-It might be material that had not got as far as being filed? Ms Edwards-That is correct. Senator FAULKNER-Who did you task to find the material? Ms Edwards-I believe it was Matt Healey, who was a junior officer in the division at the time. Senator FAULKNER-Did you give him an indication that this was urgently required? Ms Edwards-I think almost everything was urgent at that time. We were doing our best to provide whatever material we could. Senator FAULKNER-So there was no need to say it was needed urgently? Ms Edwards-I do not think so, no. Senator FAULKNER-Do you know what the turnaround time was? Ms Edwards-No, I do not. Senator FAULKNER-Are fax cover sheets and things like that kept? Ms Edwards-Yes. It is a matter for Prime Minister and Cabinet since it is their file. They can have a look and see whether or not they have that, but I have no information at the moment. Senator FAULKNER-Weren't you making the point that effectively you are in another department now? Ms Edwards-Yes, that is correct. Senator FAULKNER-Perhaps you might take that on notice and one of the officers in PM&C could let us know about that. Did you play a role in the selection of Ms Bryant to undertake the inquiry into these matters that has been tasked by the Prime Minister? Ms Edwards-No, I do not believe so. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1747 Senator FAULKNER-You would know, though, if you did. Ms Edwards-I was not involved in the selection of Ms Bryant. I believe there was a conversation between Ms Halton and me at one point along the lines of Ms Halton suggesting that maybe the idea of an inquiries officer to undertake some of the investigation work would be required, and I disqualified myself. Senator FAULKNER-I thought you might be a possible victim of a possible inquirer-it is not an unreasonable conclusion to come to. Ms Edwards-Indeed, and I disqualified myself as at that point I was aware that I was likely to be leaving the department shortly, so I said it could not be me. Senator FAULKNER-When you were then in the Department of the Prime Minister and Cabinet, was there any debate internally where you were located about whether there were any weaknesses in having a member associated with the task force actually undertaking the inquiry? I appreciate that was requested by the Prime Minister, but was there any discussion of which you are aware outlining any concerns along those lines? Ms Edwards-Not that I recall. Senator FAULKNER-So Ms Halton actually suggested you do the job? Ms Edwards-No, I do not think the conversation was along that kind of line. It was more that we needed to find someone, and so I responded that I would not be a suitable person. Senator FAULKNER-Because you were leaving? Ms Edwards-Yes. Senator FAULKNER-While you were still there were you kept in touch with the progress of the inquiry at all? Ms Edwards-Only in very broad terms. Senator FAULKNER-Ms Bryant was out of your division, wasn't she? Ms Edwards-She was in my division. Senator FAULKNER-While she was undertaking her inquiry was she replaced? What happened to her ordinary role in the department? Ms Edwards-She continued to do her ordinary work involving the task force, but we had already done some internal redistribution of some of her other tasks, and we made some efforts to try to free up her time. CERTAIN MARITIME INCIDENT CMI 1748 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Had you had any contact at all with Mr Moore-Wilton over the `children overboard' issue and associated issues? Ms Edwards-Not on that particular incident. Senator FAULKNER-I was not asking about a particular incident; I was just asking- Ms Edwards-This is through the period of the task force? Senator FAULKNER-Yes. Ms Edwards-Yes, on a couple of occasions. Senator FAULKNER-Would you be able to identify those to us? Ms Edwards-I am not sure that I can recollect exact dates, but I think on the 10th in Ms Halton's absence on another issue we had one or two phone calls at SES meetings within the department when I discussed some of the issues that had come up within it. There may have been one or two occasions when we spoke on issues, but I cannot specifically recall when they were. Senator FAULKNER-What was the other issue of 10 October? Ms Edwards-I think it was an issue in relation to the arrangements for Papua New Guinea. Senator FAULKNER-That is not the `children overboard' issue. Ms Edwards-But I said it was nothing specifically on children overboard. Senator FAULKNER-Was that also the case after the election on 10 November? Ms Edwards-That is correct. The only contact I have had, I think, with Mr Moore-Wilton was to leave him a message following the newspaper reports in February, in relation to the chronology, to draw attention to my statement to Ms Bryant's inquiry. Senator FAULKNER-Which particular statement or your statement in its entirety? Ms Edwards-Yes. The statement that related to the advice I gave Ms Halton in relation to the chronology. Senator FAULKNER-Which would be along the terms of what you have said today in your opening statement to this committee, would it? Ms Edwards-Yes. In fact, he was not available and I simply left a message. Senator FAULKNER-What about ongoing contact with Ms Halton? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1749 Ms Edwards-Yes, I have had a few conversations with Ms Halton. We were in the same building while we were reading files and such like. On occasion, we had a couple of discussions. Senator FAULKNER-What was the nature of those discussions? Ms Edwards-Simply trying to trigger recollections and reconcile our slightly veering memories of the afternoon of 10 October. Senator FAULKNER-Did you leave any phone messages for Ms Halton? Ms Edwards-No, I did not. Senator FAULKNER-But why did you feel it necessary to leave Mr Moore-Wilton a phone message on that topic? Ms Edwards-Because there had been a media report to the effect that the chronology had not been drawn to the attention of either him or Ms Halton. Senator FAULKNER-Was there any response to your message that you are aware of? Ms Edwards-Ms Halton called me back later in the day. Senator FAULKNER-Ms Halton did? Ms Edwards-Yes. Senator FAULKNER-And what did she say to you? Ms Edwards-We had a discussion around our recollections. Senator FAULKNER-Which were differing? Ms Edwards-Which were differing, but I think we agreed they could be reconciled. Senator FAULKNER-In what areas did they differ? Ms Edwards-As you are aware, Ms Halton does not specifically remember seeing or hearing about the chronology. Senator FAULKNER-Is that the main area or the only area? Ms Edwards-That is the only area that I am aware of. Senator FAULKNER-So Mr Moore-Wilton must have mentioned it to Ms Halton, who gets back to you? CERTAIN MARITIME INCIDENT CMI 1750 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I assume so, yes. Senator FAULKNER-Any other feedback or repercussions from that? Ms Edwards-No, not that I recall. Senator FAULKNER-In the discussions you were having with Ms Halton, separately to the one in response to the message you left for Mr Moore-Wilton, what were the issues you were canvassing then? Ms Edwards-We had been sitting around refreshing our memories with the files and, every now and then, that would trigger a comment or a `do you remember this or that?' kind of comment-nothing more than that. Senator FAULKNER-And why were you refreshing your memory? Ms Edwards-In preparation for these hearings. Senator FAULKNER-These hearings? Ms Edwards-Yes. Senator FAULKNER-So this is quite recent, is it? Ms Edwards-Yes, over the last month or so. Senator FAULKNER-Was anyone else refreshing their memory at the time? Ms Edwards-No, I think we were the main ones. Ms Bryant may have been present at some discussions, but that is it. Senator FAULKNER-Are all these files kept in the Social Policy Division? Ms Edwards-That is correct. Senator FAULKNER-At this stage, both you and Ms Halton work in other departments? Ms Edwards-Exactly. Senator FAULKNER-How much time did you spend refreshing your memory back at PM&C? Ms Edwards-Not a lot, although it might have felt like a lot. Senator FAULKNER-It must have been a relief for you that it was not a lot. Did you have any contact with other ministerial or prime ministerial staff, apart from Mr Jordana? CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1751 Ms Edwards-At what time? Senator FAULKNER-At any stage. Ms Edwards-In the period of the task force, yes, I probably spoke to Mr O'Leary on one occasion and Catherine Murphy on a few occasions. Senator FAULKNER-Do you recall what Mr O'Leary wanted? Ms Edwards-Not specifically. I really do not recollect. I think it was just a query about some report or other. I cannot remember the specific details. Senator FAULKNER-I thought you might, given that it would not be a common thing, would it, for you to receive a call from Mr O'Leary-the Prime Minister's chief press opera- tive? Ms Edwards-My recollection is that he was just seeking a fairly simple piece of factual information, but I cannot recall specifically what it was. Senator FAULKNER-And Ms Murphy? Ms Edwards-She asked for some papers to be sent to her at various times. Senator FAULKNER-Do you know what papers? Ms Edwards-I believe she received copies of some of the talking points that we produced at various times-that kind of thing. Senator FAULKNER-Is there anything else you can recall? Ms Edwards-I think she was present at one discussion on some legislation options. Senator FAULKNER-Were they the only ministerial staffers you had contact with? Ms Edwards-I think I spoke to someone in Mr Reith's office during the week of the 8th or 9th. As I said in my opening statement, we were initially advised by Strategic Command that they needed to have the request for further information cleared by the minister's office, which we did. Beyond that, I do not recall any. Senator FAULKNER-Why would there be legislation options? Are we still talking about the election campaign period? Ms Edwards-No, I think this was probably earlier. Senator FAULKNER-So this may have been related to the border protection bill? Ms Edwards-That is correct. CERTAIN MARITIME INCIDENT CMI 1752 SENATE-Select Wednesday, 22 May 2002 Senator FAULKNER-Unfortunately, Ms Edwards, I inadvertently missed a little bit of your earlier testimony. I have an understanding of the broad issues that other senators touched on, but if there are one or two questions that remain outstanding I might place them on notice. Ms Edwards-Sure. CHAIR-Going back to the 9 October meeting, can you recall the tone of the discussion at that meeting? For example, was there an agitated tone or any anger about Banks's unauthorised interview? Ms Edwards-I cannot recall whether the interview specifically came up at that point. I cer- tainly remember that there was some discussion outside the meeting. I am not sure whether we were aware of the interview at that point. Certainly, when we did learn about it, I can recall there being some concern. CHAIR-I understand that Mr John Drury, the Acting Chief Executive Officer of Customs, wrote on a note for the file on 9 October that, following Commander Banks's interview on Channel 10, there was a discussion at the interdepartmental committee about bans on anyone other than ministers and their staff briefing the press in relation to Operation Relex. This discussion led to: ... the need for more timely information being passed to members of the senior level reference group-in particular, to Jane Halton of PM&C. Ms Edwards-My recollection of that discussion is slightly different but not necessarily inconsistent, and that was that we had been concerned at the lack of detail that we were getting in the reports that were coming in in the sit reps. Ms Halton was therefore concerned to ensure that we got more frequent, more detailed and timely information. Indeed, Defence did agree to give us sit reps three times a day which they did for the remainder of the events on the Adelaide. The policy of people not speaking to the media other than ministers and ministers officers had been in place for some time, and it was reiterated on a number of occasions when the issue came up for discussion. It may well be that it did come up on that occasion in the context of Commander Banks. CHAIR-Why was it a discussion for the committee? Wasn't it a Defence issue? Ms Edwards-It was, but this was a policy that was being coordinated across all of the portfolios. All of the portfolios at various points had issues in relation to whether they should be making public comments on this or that or whether they should have a spokesperson here or there. So the reiteration of the policy had some broader application. CHAIR-Are you saying that the communications memo that covered Defence, which centralised communications in the Minister's office, was duplicated for other departments as well? Ms Edwards-That is correct; that was my understanding. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1753 CHAIR-Was it duplicated for other departments for Operation Relex, or was it done at some earlier point? Ms Edwards-As far as I am aware, it was for Operation Relex. CHAIR-So that no other line person in another department could comment to the media, they had to refer everything up to their ministers? Ms Edwards-That is correct. CHAIR-That sounds like a coordinated government policy. Was it? Ms Edwards-It was certainly a policy that had been articulated. CHAIR-When was it put in place? Ms Edwards-I do not recall specifically. Fairly early on, I believe, in the process. CHAIR-What was the reason for it? Ms Edwards-I am not sure of the reasons. I think it was felt that it was important to ensure that there was tight coordination of all of the information flows given the number of different players involved. CHAIR-This puts your committee in a more significant light, because you are the clearing house for a lot of this information. Ms Edwards-The committee itself was not. The committee reiterated the policy from time to time or brought issues to it where it suggested that there may be a case for doing something differently. For example, on a couple of occasions on Nauru, there were slightly different arrangements put in place given the offshore nature and long distances and times involved. But the committee itself was not the clearing house for any information; it was a matter for ministers' officers-reinforcing the issue that ministers' officers were coordinating all media. CHAIR-You could really say there was a government clampdown on information from all sources other than from ministers' officers to cover the border protection issues in Operation Relex. That is a fair statement. Ms Edwards-It was not a clampdown; it was a requirement that all media issues and the handling of them be cleared with minister's officers specifically. CHAIR-Which centralised the information flow at a political level rather than at an administrative level. Ms Edwards-It certainly meant that they had to be consulted on each event. CHAIR-Did this come from a cabinet decision? CERTAIN MARITIME INCIDENT CMI 1754 SENATE-Select Wednesday, 22 May 2002 Ms Edwards-I do not believe so. It could well have been an informal discussion in cabinet, but I do not know. CHAIR-That is an interesting piece of information. Do you know what the nature of the contact between Ms Halton and Ms McKenry on the issue of Banks's unauthorised interview was? Ms Edwards-I think she was simply ringing to find out the details and to find out what systems were in place within Defence. At that 9 October meeting, as I recall, there was a discus- sion on the fact that information flows seemed to be a little bit chaotic and that we needed to try to systematise them a little bit more. CHAIR-Do you know if anything was agreed about a `more timely' supply of information? Ms Edwards-Yes. As I said, Defence undertook to provide us in PM&C with three times daily-or I think it was three times daily, it may have been twice-situation reports on the events on the Adelaide as they continued to unfold. There was certainly increased direct frequency on what we had previously received. CHAIR-How did you obtain them? What was the method? Ms Edwards-They faxed them to us. CHAIR-They being whom? Ms Edwards-Strategic Command. CHAIR-So they did not come through Commander King? Ms Edwards-No. CHAIR-They were not a liaison function? Ms Edwards-No. CHAIR-They did not come through Air Vice Marshal Titheridge? Ms Edwards-Strategic Command is his division so, indirectly, yes. CHAIR-They did not come from Group Captain Walker? Ms Edwards-I think he may have cleared one or two. I cannot remember the names-but I am sure PM&C could find the relevant documents and the names of the officers if you needed them-but they were Strategic Command officers. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1755 CHAIR-We know that Minister Hill has since lifted this centralised communications memo or approved the removal of it and reversion back to the old system. Is that true of all the other departments that are operating on a centralised information supply? Ms Edwards-I am not aware of what arrangements are currently in place, as I am no longer involved in the management of these issues. CHAIR-In evidence to the committee, Jane Halton said that, on 9 October, she asked PM&C staff to pursue details of the `children overboard' event with Defence Strategic Com- mand. She said: I should say that I did not doubt the event had occurred but rather was trying to answer specific questions about the timing of events. Nonetheless, I specifically asked Defence to confirm all the details and to advise us accordingly. In her statement to the Bryant inquiry, however, Ms Halton said that, in response to media speculation about the alleged incident, she told the Defence representative 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. Can you comment on the nature of the confirmation being sought from Defence? Is this from Strategic Command when they refused to go to Commander Banks? Ms Edwards-As I have said, we were hunting for further and better details. I am not sure that I can add anything much to that. Senator FAULKNER-I noted your comments in relation to SIEVX in your opening statement that you were away prior to 22 October and that it was raised at the task force on both the 22nd and the 23rd. Ms Edwards-Yes. Senator FAULKNER-Are you aware of whether, on the 22nd, there was any element of surprise about the existence of SIEVX? I appreciate that you were not there before the 22nd, but I thought you may have been able to gain an impression of whether this matter had been discussed prior to your return. Ms Edwards-I do not have a specific recollection of whether this was a resumption of a previous discussion. As I said, my impression at the time was that this was a debate on how firm this report was. Senator FAULKNER-You do not have an impression of whether this had been-which is fair enough, because obviously you were not there; I thought the tenor of the discussion may have been such that there was an awareness. Ms Edwards-No, not that I recall. From Admiral Bonser's evidence and from my knowledge of the files, I believe that there were some discussions, but this was the normal intelligence reporting of SIEVs. As I said, we often received a number of reports of boats about CERTAIN MARITIME INCIDENT CMI 1756 SENATE-Select Wednesday, 22 May 2002 to come which never eventuated. This one, I think I heard this morning, had been reported five times. Senator FAULKNER-Some discussions prior to the 22nd, you mean? Ms Edwards-Yes; but I have no specific recollection. Senator FAULKNER-Yes, because you were not there; I appreciate that. CHAIR-There is one last gasp from me, I am sorry. Senator FAULKNER-There is one last gasp from me, before you go on. Because I was unavoidably delayed, if there are some further issues-I think they have mainly been canvassed, but if they have not been-I would appreciate your input. Senator BRANDIS-Unavoidably delayed in the press gallery, Senator Faulkner. Senator FAULKNER-No, not in the press gallery, actually; in another room very close to here. I know you would be an expert about the press gallery. CHAIR-We have a witness: please ask questions of the witness. All this is very interesting, but the witness's time is being wasted. Senator FAULKNER-It is many moons since I have been to the press gallery, and until I am likely to go. If there are some issues that were not canvassed, I would like to place them on notice, and I really will not know until I read the Hansard transcript. Ms Edwards-Certainly. CHAIR-My last gasp, Ms Edwards: you were saying the Defence material came over the fax to you from Strategic Command. Ms Edwards-Yes. Secure fax, I think. CHAIR-Of course. Do you know if it was passed through the minister's office before it got to you? Ms Edwards-No, I do not. CHAIR-Did any of the material come from the minister's office to you? Ms Edwards-In terms of the material following our request of the task force meeting of the 9th, not that I am aware. It is possible, but I certainly do not recollect it. CHAIR-I am fascinated by this piece of information that the centralised reporting system that applied in Defence, so that everything had to be cleared by the minister's office, was true of all the other departments as well, and it was put in place for Operation Relex. CERTAIN MARITIME INCIDENT Wednesday, 22 May 2002 SENATE-Select CMI 1757 Ms Edwards-I think that is not new information; I think it was actually raised in estimates. CHAIR-I may have missed that. Thank you very much. We have had you for a long time; we apologise for any inconvenience. Committee adjourned at 9.18 p.m. COMMONWEALTH OF AUSTRALIA Official Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident THURSDAY, 13 JUNE 2002 CANBERRA BY AUTHORITY OF THE SENATE INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Bartlett, Brandis, Collins, Cook, Faulkner and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES HAMMER, Dr Brendon, former Assistant Secretary, Defence, Intelligence and Security Branch, Department of the Prime Minister and Cabinet.....................................................................1800 SIDHU, Ms Harinder, Senior Adviser, Defence, Intelligence and Security Branch, Department of the Prime Minister and Cabinet ..............................................................................................1759 Thursday, 13 June 2002 SENATE-Select CMI 1759 Committee met at 9.34 a.m. SIDHU, Ms Harinder, Senior Adviser, Defence, Intelligence and Security Branch, Department of the Prime Minister and Cabinet CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from the secretariat staff. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. I remind members, and I will consult with the members of the committee during the course of the morning, about the prospects for a private meeting, perhaps at lunchtime. The waiting room next door is for witnesses only and is a private area to which the press and public have no access. I remind everyone that mobile phones are to be switched off in the hearing room. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair, and the committee will consider that request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. When witnesses are first called upon to answer a question they should state clearly their names and positions. Witnesses will be asked to make an oath or affirmation. The first witness I call and welcome to the table is Ms Harinder Sidhu. As I understand it, Ms Sidhu, you are in continuance. You have taken your oath or affirmation. Ms Sidhu-Yes, that is right. CHAIR-I do not think there is any need to readminister it a second time because you were stood down; you were not dismissed. As I recall, Senator Faulkner was in full flight when we cut him off in his prime, so the call goes to Senator Faulkner. Senator FAULKNER-I just wondered whether the witness wanted to add anything to the opening statement since the break. CHAIR-That is a fair question. Do you have any additional comments to make, Ms Sidhu? CERTAIN MARITIME INCIDENT CMI 1760 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-No, I do not. Senator FAULKNER-During the time that Commander King was the Defence Liaison Officer in the Department of the Prime Minister and Cabinet, was he used as a conduit of information in a similar way that occurred in relation to the matters that Commander Chatterton discussed with him and you were informed about? Ms Sidhu-No, not in that sense. In fact, that may have been the only occasion he was used as a conduit of information. I believe I testified earlier that he would, on occasion, represent PM&C at meetings where he would receive information that was shared at those meetings and return that information to PM&C. That was the more usual form of his work. Senator FAULKNER-Do you think at any time in your experience that Commander King acted inappropriately in his provision of information from Defence to PM&C or more broadly in his liaison role? Ms Sidhu-I would like to clarify that. He did not have a formal liaison role. That was never the purpose of his secondment to PM&C. In answer to your question, I do not believe that Commander King ever acted inappropriately. He was more inclined to err on the side of caution and seek advice on how to proceed before saying or doing anything. I do not recall any occasion when I would say that he acted inappropriately. Senator FAULKNER-Fair enough. Did he undertake that role and responsibility as a Defence Liaison Officer in a similar way to others who have held that position? Ms Sidhu-In general, yes. Each secondee to that position obviously brings their own skills and their own networks of contacts and so forth, so there are particular differences in how each operates. But by and large Commander King worked in much the same way as his predecessors in that position. Senator FAULKNER-When Commander King had his discussion with you on 11 October, you determined that you and Commander King would meet Dr Hammer at the earliest available opportunity. I think that is right, is it not? Ms Sidhu-Yes, that is right. Senator FAULKNER-At that meeting with Dr Hammer, did you feel that Dr Hammer understood the significance of what he was being told? Ms Sidhu-I cannot actually make a clear judgment on that. I can only report what I perceived to be his reaction, which was one of surprise and a general sense that this was not a matter of our concern. I cannot say categorically whether or not he perceived any significance. That is something you may have to ask him. Senator FAULKNER-I can ask him, of course, but I was wondering what your impressions were because you were a first party at the meeting yourself. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1761 Ms Sidhu-I would say that yes, he probably did see some significance in the information, but I think that is counterbalanced by the fact that it was uncorroborated and out of context. I did not get a clear impression, frankly. Senator FAULKNER-In relation to the misrepresentation of the photographs, were you surprised after 11 October that no correction was made public? Ms Sidhu-That is difficult for me to answer. On one level I wondered why it had not come out in public, but on another level the thing that struck me was that I had never again heard that story. So I characterised it as a stray rumour on the basis that nothing else had ever emerged about it subsequent to the 11 October conversation. Senator FAULKNER-You may have characterised it as a stray rumour, but you took immediate action to try and tell Dr Hammer about this information. In fact, you met him with Commander King the same day, did you not? Ms Sidhu-Yes, that is right. Senator FAULKNER-In fact, you tried to have an even earlier meeting, if it were possible, than you did. Ms Sidhu-Yes, that is true. But, as I said earlier as well, I had no way of establishing the truth of this information. As time went on I heard nothing else that would suggest to me that that particular piece of information was true. As I have also said, I hear many rumours and I cannot always account for their truth or otherwise. Senator FAULKNER-Did you put the fact that no correction was made public at any stage down to the fact that this was occurring during the period of a federal election campaign? Ms Sidhu-I do not think I thought that deeply about it. I did not make a direct connection with the election campaign, no. I was more concerned about whether in fact this story was true. The question of a correction or otherwise never really came up in my mind. Senator FAULKNER-You say you were concerned about whether or not the story was true. Aside from the contact with Ms Wildermuth that we understand occurred on 7 November, did you raise this issue with anybody else in that period from 11 October last year-from the time when Commander King raised this with you and you and Commander King met Dr Hammer-through to when the election was held on 10 November? Ms Sidhu-Other than what I put on the record, no. Senator FAULKNER-When Ms Wildermuth contacted you in November, did you have any understanding of what Ms Wildermuth was likely to do with the information that you provided to her about the status of suggestions that children had been thrown overboard? CERTAIN MARITIME INCIDENT CMI 1762 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-I had no information about what she was likely to do, no. Senator FAULKNER-Why did you pass the information on to her? Ms Sidhu-As I said before, in the course of our conversation about the documents that she was looking for I remembered Commander King's comments to me. It was a spontaneous thing: I remembered it and I spoke of it almost as soon as I recalled it in the context of my conversation with Ms Wildermuth. Senator FAULKNER-But you told me a little earlier that you were concerned about whether this story was true. Ms Sidhu-Yes, but in a general sense. As I also said, my concern chiefly revolved around the time when Commander King told me the information and we reported the information to Dr Hammer. It was not an ongoing worry that I had throughout this period. Senator FAULKNER-I will take what you say at face value; I accept it. You were concerned about whether the story was true. Did you do anything about finding out whether or not it was true? Ms Sidhu-No. Senator FAULKNER-Could you say why not, if you were concerned about whether it was true? Ms Sidhu-I was not worried about it on an ongoing basis. This was not something that I worked on as part of my duties. It appeared to me that it was strictly a rumour that was received second- or third-hand. As I have also said before, perhaps if I had heard that story again-if it had come up more than once-I may have thought to pass it on or to try to seek out the truth, but throughout that entire period this was an isolated incident. It occurred once and I never heard it again. I did not see any point in chasing it up, especially given that I was working on so many other things that were properly within the spread of my authority and responsibilities. Senator FAULKNER-When did you become aware of what Ms Wildermuth did with the information you told her? Ms Sidhu-It would have been quite some time later. I think it would have been closer to the time when Ms Halton wrote her letter to the secretary. Senator FAULKNER-So you did not know that Ms Wildermuth had effectively seen that that information passed-indirectly, via Ms Bryant, is my recollection-to Ms Halton and to the Prime Minister's office? Ms Sidhu-I was aware, because Ms Bryant had called me around December. I should correct what I have just said. Ms Bryant called me around December to clarify the date of my conversation with Ms Wildermuth in the context of her report into the CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1763 incident. So I was aware that Ms Bryant had been made aware of it. I was not aware that it had gone beyond Ms Bryant until Ms Halton's letter. Senator FAULKNER-Did you ask Ms Bryant whether that particular conversation, that matter-the so-called tearoom gossip-would be mentioned or canvassed in the Bryant report? Ms Sidhu-No. Senator FAULKNER-Was there any discussion about that with Ms Bryant at all? Ms Sidhu-No. Senator FAULKNER-But that was the context in which she rang you, was it not? Ms Sidhu-Yes. It was strictly a very quick conversation in the context of her trying to check facts, as I understood it. She just called me and asked, `Can you recall the date of your conversation with Ms Wildermuth?' I tried to pin the date down and responded that I could not. Senator FAULKNER-So were you surprised when that effectively did not appear in the Bryant report? Ms Sidhu-No, not particularly. Senator FAULKNER-I would like to ask you about the status of this information. Are you aware of Ms Bryant's evidence to this committee that she had followed up with your division in the light of Commander Chatterton's evidence before this committee? Ms Sidhu-Yes, I am aware of her evidence. Senator FAULKNER-Are you also aware that we have been told that your division had originally believed that the incident was a rumour or tearoom gossip, but in the light of Commander Chatterton's evidence, you no longer believed that that was the case? Ms Sidhu-Yes, I am aware of her evidence to that effect. Senator FAULKNER-Can you shed any light on that for me? Ms Sidhu-I cannot shed any more particular light. By the time Commander Chatterton had given his evidence, his evidence had come after the meeting between Commander King, Dr Hammer and me in March when Commander King revealed to me that it had been a direct approach. From that point on, I was aware and I believe Dr Hammer was aware, and I would assume Mr Potts, the division head, was also CERTAIN MARITIME INCIDENT CMI 1764 SENATE-Select Thursday, 13 June 2002 made aware, that it had in fact been a direct approach. Up to that point, we had always believed that it had been an indirect rumour picked up second-hand. Senator FAULKNER-Is it fair to say that you originally thought it was a rumour- Ms Sidhu-Yes. Senator FAULKNER-but at some stage later you changed your mind? Ms Sidhu-No, I had not changed my mind. I had found out fresh information which cast a different light on the events. I have not changed my mind about what I was originally told because that is my clear recollection of what I was told in October. What I am saying is that, from March, it had become clear to me that a different event had occurred and I accept Commander King's explanation of that. Senator FAULKNER-Yes, but I am talking about whether Commander Chatterton's evidence changed your views or views in your division. Ms Sidhu-No, not from my perspective. From my perspective, the thing that changed my picture of the events was Commander King's comments to me personally. Senator FAULKNER-But if you thought it was rumour, innuendo or tearoom gossip at the time-and that is what you are saying to me was its status basically- Ms Sidhu-That is right. Senator FAULKNER-It is fair to say that you thought it was rumour or gossip. Is that a fair description? Ms Sidhu-Yes, that is fair. Senator FAULKNER-If that is the case, why did you immediately seek to meet your superior, Dr Hammer, at the earliest available opportunity to pass it on? Do you normally do that when you receive a piece of gossip? Ms Sidhu-It depends on the nature of the rumour. There have been occasions in the past when we have encountered a rumour which, in the end, has turned out to have some substance or formed part of a larger story. I assessed that this was potentially a significant story and that there may be some substance behind it. I went to Dr Hammer to see if there was any light he might be able to shed on it, as he had done in the past on one or two occasions. Senator FAULKNER-But you would not normally do that if someone passes on a piece of gossip or rumour, would you-go to your superior and try and set up a meeting quickly? I am not critical of that. I think you did the right thing. But it seems CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1765 to me that you acted quickly and decisively. What surprises me is that you would do so if you thought this was only a bit of rumour or gossip. Ms Sidhu-I do not know how to put it more clearly than that. We get stories all the time through where I work and some of them are potentially significant and some of them form part of a larger story. I thought that this may in fact form part of a larger story or there may be a wider context to it. Senator FAULKNER-You were right about that. It was not a rumour, was it? This had real substance, didn't it? Ms Sidhu-As it turned out, yes. Senator FAULKNER-As it turned out. Ms Sidhu-Yes. But at the time I did not know that. It seemed to me that Commander King appeared worried about the information and I took it seriously, even though he was concerned about sharing names or where he had precisely heard this information. But quite clearly he had heard it from a source that he thought had some credence. I just thought it might be wise to inform Dr Hammer of it and, if he was available then, I thought the sensible thing to do would be to go straightaway. Senator FAULKNER-But you never chased up with Dr Hammer what was the outcome of the meeting that you and Commander King had that same day with Dr Hammer? Ms Sidhu-No. Senator FAULKNER-You did not have any conversation with him about it at all? Ms Sidhu-No. Not afterwards, no. Senator FAULKNER-In Dr Hammer's case, you did not talk about this until it became a notorious public incident and likely to be the subject of questioning at a Senate committee? Ms Sidhu-I did not talk about it again with whom-with Dr Hammer again? Senator FAULKNER-Yes. Ms Sidhu-No. We did not discuss it again until the question of a possible departmental submission to a committee was being canvassed. Senator FAULKNER-Yes, to this committee. Ms Sidhu-Exactly right. CERTAIN MARITIME INCIDENT CMI 1766 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-You indicated to us the last time you were before us, Ms Sidhu, that when Ms Wildermuth approached you on 7 November last year you had given her two documents to take back to the Social Policy Division overnight-is that a fair summation of the situation? Ms Sidhu-Yes. That is exactly right. Senator FAULKNER-I think the point has been made that that was not the normal process. That is right, isn't it? Ms Sidhu-Yes, that is right. Senator FAULKNER-They were cables, were they, or documents? Ms Sidhu-It appeared to be defence reports that had been distributed through the Foreign Affairs and Trade cable network. Senator FAULKNER-One was a classified report entitled `CJTF639 daily intsum 039' of 7 October 2001'? I think that was it. Ms Sidhu-It was 034. Senator FAULKNER-Thank you. It was 034 of 7 October 2001? Ms Sidhu-Yes, that is right. Senator FAULKNER-And the other one was a classified report entitled `ASTJIC intelligence brief 209/01' of 8 October 2001'? Ms Sidhu-Yes, that is right. Senator FAULKNER-When did Ms Wildermuth return those documents to you? Ms Sidhu-The next morning. Senator FAULKNER-She gave them to Ms Bryant, as far as you know? Ms Sidhu-I do not know. Senator FAULKNER-Have you got any idea at all what happened to those documents? Ms Sidhu-No. Senator FAULKNER-At the time that they were provided for the benefit of the Social Policy Division, did you indicate clearly what, if any, constraints might apply, given that this was not the normal situation? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1767 Ms Sidhu-Yes, very clearly. I asked her to ensure that they were appropriately locked up. She understood the reasons why, and she, as I know, has access to the appropriate security container. I also impressed upon her that I could not release them for more than overnight. I asked her to return them to me the next morning. The third thing I asked her was not to copy them. Senator FAULKNER-Are you satisfied that they were locked up overnight? Ms Sidhu-Yes. Senator FAULKNER-How do you know that? Ms Sidhu-I trust Ms Wildermuth, and- Senator FAULKNER-So you do not know. Ms Sidhu-Not categorically, no. Senator FAULKNER-Are you satisfied they were not copied? Ms Sidhu-Again, I do not know for sure. Senator FAULKNER-No. Ms Sidhu-This is based on a relationship of professional trust. Senator FAULKNER-Again, I accept that, but I am trying to establish whether you sought any assurances after the event from Ms Wildermuth as to how those documents were dealt with. Ms Sidhu-No, I did not. Senator BRANDIS-You would not ordinarily seek assurances like that, would you, Ms Sidhu? Ms Sidhu-No. Ms Wildermuth has been properly cleared. She has been briefed on security procedures. I have to assume that somebody holding that level of security clearance understands how to handle material like this. Senator BRANDIS-And you have absolutely no reason to believe that the documents were be dealt with in any way other than the ordinary course? Ms Sidhu-No. Senator FAULKNER-What level of security clearance does Ms Wildermuth have? Ms Sidhu-Top secret, I understand. CERTAIN MARITIME INCIDENT CMI 1768 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-But you would not ordinarily provide any documents to anyone anyway for use overnight, would you? Ms Sidhu-Not ordinarily. I had made an exception- Senator FAULKNER-Have you ever done it before? Ms Sidhu-I had made an exception before, yes. Senator FAULKNER-How many times has this been done? Ms Sidhu-Probably only once or twice. This was a particular occasion- Senator FAULKNER-Are you able to identify what those other occasions were? Ms Sidhu-I can recall one occasion where I did not leave a document overnight but brought a document to Social Policy Division for them to look at, which I then collected about an hour later. Senator FAULKNER-Was it a breach of process to actually give those documents to Ms Wildermuth overnight? Ms Sidhu-I do not believe it was. I am not aware of any particular guidelines or rules about handling of documents which I may have breached. But it was outside of my ordinary way of operating. Senator FAULKNER-I accept that-it was not normal procedure. Ms Sidhu-Not for me, no. Senator FAULKNER-It was abnormal-not unprecedented, because it happened on at least one other occasion. Ms Sidhu-Yes. Senator FAULKNER-Did the fact that this was occurring at the very end of an election campaign, when there was a great deal of sensitivity about the matters to which these documents related, have any impact on your decision or decision making in relation to providing those two documents? Ms Sidhu-No. It was strictly a professional courtesy. The election campaign or otherwise did not come into it. Senator FAULKNER-It would depend on how they would be used, would it not? Ms Sidhu-That is true. But the entire department understood about the caretaker conventions. We had been briefed on these. We were operating within them. Ms Wildermuth had asked for access for those documents for what appeared to be a CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1769 professional and an appropriate purpose. There was no question in my mind-nor had she raised any questions-that this was in any way related to the election campaign. It was strictly a work related official function. Senator FAULKNER-Commander King actually told this committee that you had told him on 8 November, I think, that you had informed Ms Wildermuth about the information that the photographs were misrepresented or wrongly attributed to the `children overboard' incident. Is that right? Ms Sidhu-Yes. Senator FAULKNER-Is it true that you told Ms Wildermuth that they were in fact photographs taken when the boat was sinking? Ms Sidhu-I told her that there was a story circulating in Defence to that effect, yes. Senator FAULKNER-Why did you tell Commander King about this conversation with Ms Wildermuth? Ms Sidhu-When I told Ms Wildermuth the story she appeared very surprised. I myself was quite taken aback that a rumour such as this had not crossed her path before, given that she was working so closely with the People Smuggling Task Force. I guess it was her reaction that generated a bit of concern in my mind. When I had mentioned the story to her, I did not also mention Commander King's name, but her reaction caused me to think that perhaps Social Policy Division may want to follow it up and that Commander King would therefore become involved. So, as a courtesy the next morning, I let Commander King know that I had spoken to Ms Wildermuth, that this had been her reaction and that there may be some follow-up. But none eventuated. Senator FAULKNER-Do you think it is unusual to go to Commander King to see if it is okay to disclose the source of information if the information is just gossip? Ms Sidhu-I try to operate, as far as possible, in a collegiate way and to provide a certain amount of professional courtesy. I thought Commander King might consider himself to be in an embarrassing position if it were to come out that he was peddling rumours, I suppose. So I felt I owed him the courtesy of letting him know that I had in fact passed the story on. Senator FAULKNER-But Commander King has told this committee that you did not inform him in November that you thought this was just gossip. Is that right? Ms Sidhu-That I did not inform him? Senator FAULKNER-That you did not say to Commander King that you thought this advice was just gossip. CERTAIN MARITIME INCIDENT CMI 1770 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-I am not aware that he has actually said that. Senator FAULKNER-That is my recollection, but I might be wrong. I make far too many mistakes, so let us assume for a moment that I am wrong. Did you or did you not talk to him on 8 November about the status of this being gossip? Ms Sidhu-To the best of my recollection, I do not remember discussing with Commander King the status of the information. All I recall telling him is that I had passed the information on to Ms Wildermuth and that she had been surprised at hearing it. I just thought he should know. Senator FAULKNER-But Commander King would not have been aware of your view that the status of this information was gossip, because you did not tell him. Ms Sidhu-That is true; I did not. Senator JACINTA COLLINS-Earlier this morning you said that the information was clearly worrying Commander King and that he clearly regarded the source of it as credible. Ms Sidhu-Yes. Senator JACINTA COLLINS-How do you say those two things and explain to us now that you regarded it as gossip? Ms Sidhu-Again, my recollection is that Commander King had overheard other people discussing this matter. I was not aware of who those people were. As I testified before you earlier, my attempts to press him for names or ranks had proved unsuccessful, so I could only regard this as information that was overheard. I did not know who was discussing this information and I had no way of judging whether they were people who might actually know or not but, judging from Commander King's concern, I felt that he may have made a judgment that these were people who might know something about the issue. I passed it on on that basis. Senator JACINTA COLLINS-But, in your mind, none of what you have just described constitutes a discussion about the status of the information? Ms Sidhu-With Commander King? Senator JACINTA COLLINS-Yes. Ms Sidhu-As I say, my recollection is that he told me that he had overheard a conversation to this effect. That is the extent of the discussion we have had about the status of the information, until March this year. Senator JACINTA COLLINS-Except that you obviously reached conclusions. Ms Sidhu-Yes. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1771 Senator FAULKNER-Let us go to the question of the Department of Prime Minister and Cabinet's submission-or possible submission-to this committee. Could you give me some background on what you actually know about the development of that in the early stages? Ms Sidhu-Very little, really. When the committee was constituted I believe I heard through the Social Policy Division-and I believe it was Ms Bryant, who suggested this to me-that the department would be putting together a submission and that it would be helpful if I could write down my recollection of the events. She was particularly concerned that I would be able to pin down key facts such as dates, times and places where I had heard various bits of information-the two key dates obviously being the date that Commander King came to see me and the date that I spoke to Ms Wildermuth. That is the extent of my knowledge about the submission. I was later told by Mr Potts that the government had made a decision not to proceed with a departmental submission. Senator FAULKNER-Were you aware of what was expected from the International Division, beyond what you have said? Was that more in your individual capacity as a Commonwealth officer or on behalf of the International Division? Ms Sidhu-I understood it to be a PM&C-wide submission to which individual officers would make their contributions. Senator FAULKNER-Was your contact with Ms Bryant more on behalf of the division or in an individual capacity? Ms Sidhu-No, it was in an individual capacity. Senator FAULKNER-Would that have involved Commander King at the time? Ms Sidhu-At the time she spoke to me, no. I do recall alerting Commander King to the possibility of a submission. Let me just think. I cannot accurately recall whether when she raised that with me she mentioned Commander King's name or not, so I do not know what prompted me to contact Commander King. But I did it mention to him- Senator FAULKNER-But you cannot tell me why you contacted Commander King? It was your initiative, was it, to contact Commander King? Ms Sidhu-It may have been. This would have been in February this year. Senator FAULKNER-Do you know why you decided to contact him? Ms Sidhu-Principally because he was the source of my information. Senator FAULKNER-Beyond saying it was in February this year, you are not able to nail down that date more specifically? CERTAIN MARITIME INCIDENT CMI 1772 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-No, I cannot. Senator FAULKNER-Was this because he may have been expected to contribute to such a submission because he was working in a defence liaison officer capacity in the department during the relevant period? Ms Sidhu-Yes-specifically because he was the source of the information that I had received. Senator FAULKNER-So what happens when you contact Commander King about the fact that a submission is being prepared? What does he do? What does he say? Ms Sidhu-He was accepting. He said that that was fine; he was happy to help out if he could. Senator FAULKNER-So did he offer to contribute to the submission? Ms Sidhu-At that stage, my advice from Ms Bryant was not to prepare a concrete contribution but, rather, to prepare a document for myself which would jog my memory and would act as the basis of my contribution to the submission. Commander King indicated he would be happy to do likewise-just to write down his recollections. Senator FAULKNER-How do you know that? Was this in the same conversation with him? Ms Sidhu-Yes. I explained what I had been asked to do, and he said, `Yes, that is fine.' He was happy to- Senator FAULKNER-He appeared reasonably keen to contribute to it, did he? Ms Sidhu-Yes. Senator FAULKNER-Did you pass the information that Commander King was undertaking that preparatory activity to anybody else? Ms Sidhu-I may have mentioned it to Ms Bryant, but I do not think beyond that, no. Senator FAULKNER-No-one in the International Division? Ms Sidhu-No. Senator FAULKNER-So as far as you know, only Ms Bryant would be aware that Commander King was likely to contribute to such a submission? Ms Sidhu-Yes, that is true. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1773 Senator FAULKNER-What happened then? Ms Sidhu-I prepared my document and nothing more was asked of me. I had a follow-up conversation with Ms Bryant, when she asked me if I had in fact prepared such a memory jogger, as I have termed it. I responded to her that, yes, I had. She did at one point ask to see it, but soon after that, I believe, the decision for the department not to contribute a submission was made; so it was a moot point, really. Senator FAULKNER-Did you provide the memory jogger to her? Ms Sidhu-Yes, I did. Senator FAULKNER-Would you be able to provide a copy of that memory jogger to the committee? I assume it forms the basis, anyway, of the material that you have provided to Mr Moore-Wilton? Ms Sidhu-No, it does not cover that. It preceded that meeting. Senator FAULKNER-Of course, it precedes that, yes. Ms Sidhu-It actually formed the basis of my opening statement when I was here last. Senator FAULKNER-Would you be able to provide a copy of that memory jogger to us? Ms Sidhu-Yes, certainly I could. I do not have it with me now. Senator FAULKNER-I appreciate that. Did you have any ongoing communication with Commander King about this? Did you tell him a contribution is not required anymore? Ms Sidhu-I believe at one point I did ask him. He sent me a quick email asking what was happening with the submission. I responded that it was no longer required, that this decision had been made by cabinet. Senator FAULKNER-In terms of your communication with Commander King, first of all, you contact him sometime in February about the possibility of a submission being prepared and contributing to it. I think that is right, isn't it? Ms Sidhu-Yes, that is right. Senator FAULKNER-Then you have a further email contact about that not proceeding? Ms Sidhu-Yes. Senator FAULKNER-That was generated by you, I assume. CERTAIN MARITIME INCIDENT CMI 1774 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-No. As I said, he sent me an email-because he had heard nothing more from me after that first conversation we had had-asking me what was happening, to which I responded that nothing appeared now to be needed. Senator FAULKNER-Did you have any other contact of any description with Commander King in the lead-up to the preparation for the Senate estimates committee that we are aware of? Ms Sidhu-No. Senator FAULKNER-So there was an original conversation and then the email contact? Ms Sidhu-That is right. Senator FAULKNER-But, as far as you know, no other officers of the department would have been aware of a possibility of Commander King contributing to a PM&C submission? Ms Sidhu-Yes. As far as I am aware, nobody else would have. Senator FAULKNER-Apart from Ms Bryant and Dr Hammer, no others would have been aware of the nature of Commander King's involvement or role-would that be right? Ms Sidhu-As far as I knew, no. Senator FAULKNER-I saw in your statement mention of Commander King asking for his electronic calendar. Ms Sidhu-Yes. Senator FAULKNER-What was all that about? Ms Sidhu-It went to trying to establish the dates at which he attended the various Op Slipper meetings. He noted all his meetings down in the electronic calendar and had asked to see if it could be regenerated so he could review the dates at which he attended the Op Slipper meetings to better pin down the date at which he had heard the advice about the photograph. Senator FAULKNER-When was that request made? Ms Sidhu-I cannot recall exactly. It may have been about the time when I asked him to compile the memory jogger for the submission. It may have been sometime in February; I cannot recall. Senator FAULKNER-So that is another contact, is it? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1775 Ms Sidhu-No. I think it may have been in the same contact. Senator FAULKNER-Was the access to the electronic calendar organised? Ms Sidhu-Yes, that is right. And it turned out that it was available about the time that he came for the meeting with Dr Hammer and me, so it was convenient for him to do the two things in the one day. Senator FAULKNER-Who made the decision about access to the electronic calendar? Was that you or was it somebody else? Ms Sidhu-I put a request in on his behalf. But at that stage I understood Social Policy Division were also seeking access to all their electronic calendars and emails for the same process, so his request went into the same batch of requests. Senator FAULKNER-So, you basically passed on his request? Ms Sidhu-Yes, that is right. Senator FAULKNER-Who did you pass that request on to? Ms Sidhu-I passed it on to our office manager, I suppose, for the division, who I know passed it on to our information services section in the department. Senator FAULKNER-And the request was granted? Ms Sidhu-Yes, that is right. Senator FAULKNER-Who informed Commander King that the request was granted? Ms Sidhu-I did. Senator FAULKNER-Do you know when you did that? Ms Sidhu-It would have been around the time that I arranged for the meeting with Dr Hammer and me. Senator FAULKNER-Do you know how you did that? Was it a telephonic conversation, an email or what? Ms Sidhu-I cannot recall precisely. Senator FAULKNER-Did Commander King ever say why he wanted access to this electronic calendar? CERTAIN MARITIME INCIDENT CMI 1776 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-Yes. As soon as I had mentioned the Social Policy Division's concern to be clear on dates and places, his response was, `I will need access to my calendar to accurately identify those.' Senator FAULKNER-Was approval for this granted at some other level of the department? Ms Sidhu-Yes. I do not know precisely by whom, but it went into a process and it was approved. Senator FAULKNER-And this all precedes the arrangements for the meeting with you, Commander King and Dr Hammer? Ms Sidhu-Yes, that is right. Senator FAULKNER-Did you have any other contact with Commander King before that process kicked off? Ms Sidhu-I probably had a couple of social contacts, email contacts, but not on this matter, no. Senator FAULKNER-Are you able to say what those email contacts are about? Ms Sidhu-Mostly passing jokes back and forth. Senator FAULKNER-Fair enough. But what I am asking is: do they go to the substance of this matter that we are talking about? Ms Sidhu-No, they do not; not at all. Senator FAULKNER-Correct me if I am wrong, but I think that Dr Hammer came to you with the idea of the meeting with Commander King, did he not? Ms Sidhu-Yes, that is right. Senator FAULKNER-Are you clear on the date there? Ms Sidhu-It was on 8 March. Senator FAULKNER-What did he say to you on 8 March? Ms Sidhu-I cannot recall the exact words he used, but I believe I have said before that he suggested that somebody had suggested it would be a good idea to get together to refresh our memories. He may have made some comment along the lines that he could not recall precisely what had happened in the original meeting between Commander King, Dr Hammer and me and he thought it would be a good idea to get together to refresh our memories. He asked if I could arrange a meeting for the three of us. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1777 Senator FAULKNER-Did he express any concerns, at that early stage, that there might be different recollections of events? Ms Sidhu-He did not mention that at all. His main concern was that he did not recollect it very well. Senator FAULKNER-Why would it not be enough to talk to you about it? Ms Sidhu-For the sake of completeness, given the information had come from Commander King, I presume it would make sense to have the three us there. I did not have much memory of it either and we thought perhaps Commander King would add another piece to the puzzle. Senator FAULKNER-Was it a face-to-face conversation you had with Dr Hammer on 8 March, when he requested that you organise the meeting? Ms Sidhu-Yes, that is right. Senator FAULKNER-Why did he not take the initiative to organise it? Ms Sidhu-Largely, because he did not have Commander King's contact details. He knew that I had them. There were some work related items that were held over from when Commander King departed in January, so he was aware that I had been following these up and tying up loose ends with Commander King. I presume it was on that basis he asked me to organise the meeting. Senator FAULKNER-When you eventually met him at the Hotel Kurrajong on 11 March were any of those work related items discussed? Ms Sidhu-No, by that stage most of them had been wound up. Senator FAULKNER-They were not as important three days later. From 8 March, how many attempts did you make to arrange the meeting between you, Commander King and Dr Hammer? Ms Sidhu-I tried to call Commander King on 8 March. When Dr Hammer approached me I think it was close to 5 o'clock on that Friday. I was not able to reach Commander King. I tried to call again on the Saturday and left a message. Senator FAULKNER-Was 8 March a Friday? Ms Sidhu-Yes. Senator FAULKNER-What time did Dr Hammer talk to you? Ms Sidhu-Some time between four and five in the evening. CERTAIN MARITIME INCIDENT CMI 1778 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-Did you take immediate steps to try to contact Commander King? Ms Sidhu-Within 20 minutes or so, yes. Senator FAULKNER-Why was it so urgent? Ms Sidhu-It was not; that is the way I tend to do things. If I am asked to do something I try to get it out of the way. Perhaps I had the opportunity to call straightaway before I forgot about it. Senator FAULKNER-So you tried to contact Commander King late that afternoon or evening, 20 minutes after your discussion? Ms Sidhu-Yes. It was closer to five, I recall, by the time I was trying to call him. I left a voice mail message, I believe, on his work phone. I was unable to reach his mobile. I tried his mobile again on Saturday morning, got a voice mail and left a voice mail message with him. Senator FAULKNER-What was that voice mail message? Ms Sidhu-It was a message asking him to call me back and saying that Dr Hammer had wondered if he might be available to get together on the Sunday to discuss our meeting regarding the photographs in October. Senator FAULKNER-It sounds pretty urgent. Ms Sidhu-It was not phrased in a way that was particularly urgent. Senator FAULKNER-How did you know of Dr Hammer's availability on the Sunday? Ms Sidhu-When he approached me on the Friday I tried to define with him a time and a place for a meeting. Senator FAULKNER-I see; what did he say? Ms Sidhu-He said that he thought perhaps it might be best if we met on Sunday afternoon at his home. Senator FAULKNER-Did you ask him why? Ms Sidhu-No, but I believe he made some comment to the effect that he was very busy at work and thought it would be more relaxed to meet in his home than anywhere else. Senator FAULKNER-You thought that was fair enough-there was nothing unusual in that? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1779 Ms Sidhu-Yes. Senator FAULKNER-It was not urgent, but you would meet at his home, on Sunday afternoon and at the earliest available opportunity? Ms Sidhu-It was not put in those words. I did not see anything untoward in it. Senator FAULKNER-I am just asking whether you reflected on that at all. You have had the odd social gathering, I think you said earlier, at Dr Hammer's home? Ms Sidhu-Yes. Senator FAULKNER-Were they normally organised with a couple of days notice, late on Friday afternoon? Ms Sidhu-No. Senator FAULKNER-Was Dr Hammer normally a bit more organised than that? Ms Sidhu-Social gatherings are obviously organised a bit further in advance. Senator FAULKNER-This was not a social gathering, was it? Ms Sidhu-No. But it was a matter that did not necessarily fall neatly in the scope of our work. It was something that was outside our normal work responsibilities and the things that we normally did. Senator FAULKNER-You left the voice mail message for Commander King. What happened then? Ms Sidhu-He called me back-I cannot recall whether it was on the Saturday or the Sunday; I think it was on the Saturday-and said that he was spending the weekend in Sydney and was unable to make the meeting on the Sunday. I accepted that and said I would pass it on to Dr Hammer, and he suggested that if we wanted to meet we could do it sometime during the week. I thought that was reasonable, and that was the extent of the conversation. Senator FAULKNER-When did you actually nail down the time? Ms Sidhu-For the Monday meeting? Senator FAULKNER-Yes. Ms Sidhu-On Monday morning. Senator FAULKNER-So you rang again on the Monday morning? Ms Sidhu-I rang him at work on Monday morning. CERTAIN MARITIME INCIDENT CMI 1780 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-At what time? Ms Sidhu-I do not remember exactly. It would have been late morning, about 10. Senator FAULKNER-There seems to be a degree of urgency about this coming through what you are saying to us. Ms Sidhu-I suppose it does seem that way. Senator FAULKNER-It sure does. Ms Sidhu-I recall that Dr Hammer was keen to have the meeting, but I did not sense any great pressing urgency about the meeting. It was just a question of being expeditious. Senator FAULKNER-Keen? He asked you to organise this on the Friday afternoon and suggested that it happen on Sunday afternoon at his home. When that did not work, you organised on the Monday morning to have it that afternoon. Ms Sidhu-As I say, I did not pick up any particular sense of urgency about having to have the meeting so soon. Senator BRANDIS-That was your reaction, Ms Sidhu. Did you detect any urgency on Dr Hammer's part? Ms Sidhu-Not particularly. I think it was just a question of trying to meet as efficiently as possible. That was the sense that I got. Senator FAULKNER-When you made contact and had the phone conversation with Dr Hammer on the weekend, how do you think Commander King reacted to such a suggestion? Do you think he was surprised by this at all? Ms Sidhu-It did not seem to me that he was surprised. He seemed a bit intrigued by it, but generally he seemed fairly relaxed and said he would be happy to come along and help out. Senator FAULKNER-Did he seem wary? Ms Sidhu-No. Senator FAULKNER-Uncomfortable? Ms Sidhu-No, not on the telephone. Senator FAULKNER-Did he ask you any questions about it? Ms Sidhu-He may have tried to clarify the purpose of the meeting. I do recall mentioning to him that it had been some time since we had actually discussed the CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1781 matter and, given that there were likely to be questions and none of us had a very clear recollection of our meeting, it would probably be a good idea if we got together to refresh our memories. Senator FAULKNER-What was his reaction to that? Ms Sidhu-He appeared to accept it. Senator FAULKNER-So you do not think he was wary? Ms Sidhu-No. Senator FAULKNER-Let us just go to the conversation you had the next morning with him. He agreed to meet at the prearranged location? Ms Sidhu-I believe he said that he would be available later in the afternoon. To some extent also, the ability for him to access his computer account weighed into the timing because the information services people were closing down at a certain time on that day. We adjusted the timing to ensure that we could have the meeting and he could access his Outlook account at the same time. Senator FAULKNER-This urgency does not quite seem to fit with what Dr Hammer tells us in his letter to Mr Moore-Wilton. Senator BRANDIS-What urgency, Senator Faulkner? All of the evidence has been that there was no urgency, notwithstanding your constant attempts to press the witness to the contrary. Senator FAULKNER-We will establish the urgency, Senator Brandis. In the unlikely event that I am ever invited to your home on a Sunday afternoon I expect that you will give me more notice than telling me in a mobile phone call on the Friday afternoon. Senator BRANDIS-I am merely at pains to make the point that it is the answers that are the evidence, not the questions. The answers have been uniformly that there was no sense of urgency. Senator FAULKNER-You are entitled to come to whatever conclusions you care to jump to. CHAIR-It can also be that the actions are the evidence. The actions here are that on the Friday an attempt was made by a mobile phone call to set up a meeting, unusually, on a Sunday. That may be evidence of urgency. Senator FAULKNER-Dr Hammer says: I recall that it was mid-to-late February 2002 when Mr Potts first asked that I bring Ms Sidhu and Commander King together. I recall asking Ms Sidhu to set the meeting up, but that some difficulty arose in CERTAIN MARITIME INCIDENT CMI 1782 SENATE-Select Thursday, 13 June 2002 finding a time. Some time later Mr Potts asked whether there had yet been a meeting and I explained that I had been trying to set one up. And so it goes on. How does that fit with what you have told us? Ms Sidhu-I do not think that it is inconsistent. I do not specifically remember an earlier occasion of trying to arrange a meeting but that does not mean that it did not happen. I believe it is consistent in that I did actually set up a meeting later on at Dr Hammer's request. Senator FAULKNER-I am trying to nail down when it was that you first heard about the idea of such a meeting. I think you have told us that it was the Friday afternoon. Ms Sidhu-That is when I remember it. I do not dispute that- Senator FAULKNER-But Dr Hammer is saying that it is a lot earlier. I accept what you are saying to us, but I am merely asking you whether you can explain the discrepancy here. Ms Sidhu-It just goes to my memory. I do not recall the earlier approach. I am not disputing that there may or may not have been one. Senator FAULKNER-But, anyway, you are not aware of a request from Dr Hammer mid to late February asking you to set such a meeting up? Ms Sidhu-I do not specifically recall one, no. Senator FAULKNER-In other words, what you are saying and what Dr Hammer says in his letter to Mr Moore-Wilton are different. Ms Sidhu-Yes, I guess. Senator FAULKNER-It is an extremely odd way to be dealing with this gossip. No-one-Dr Hammer, Mr Potts-seems to be treating it very lightly, are they? It is being treated very seriously. Ms Sidhu-It goes to the timing. It had by February become a serious matter as it had been raised in Senate estimates and it was likely to be raised in this committee. But prior to that we had no basis for treating it as anything other than a rumour. Senator FAULKNER-You said in your letter to Mr Moore-Wilton that your account had departed a little from the account that you had given this committee when you last appeared before it- Ms Sidhu-Yes. Senator FAULKNER-and you had had more time to consider and reflect on events. Could I ask you what you actually remember more clearly now? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1783 Ms Sidhu-In my note to Mr Moore-Wilton my comment that my account had departed referred specifically to the exchange that I had with Commander King about the status of the information that he had passed on to me. I have written it down as I recalled it once I had had time to think about it. In other words, there had been a couple of exchanges between Commander King and me on that question. Senator FAULKNER-When I asked Commander King, at this committee on 2 May this year, this question: And it was obviously difficult for you to express the concerns that you did express about the proposed meeting in his home on the Sunday. It was not easy, was it? Commander King's answer to me was: It was an awkward moment. But you did not feel it was awkward? Ms Sidhu-No. CHAIR-It is the answers that are the evidence, isn't it, Senator Faulkner? The answer here from Commander King that it was an awkward moment is the evidence, isn't it? Senator FAULKNER-It is his evidence. What I am asking Ms Sidhu is whether it was awkward for her. He is saying it was awkward for him. Senator JACINTA COLLINS-If she perceived the awkwardness? Senator FAULKNER-Yes. Did you perceive the awkwardness or did you feel awkward? Ms Sidhu-As I said to you, when I spoke to Commander King on the phone he appeared relaxed about it and willing to help. I perceived no awkwardness on his part, no. Senator FAULKNER-You agreed to meet where on the 11th with Dr Hammer and Commander King? Ms Sidhu-At the Hotel Kurrajong-actually, to meet at the front of PM&C and to have coffee at the Kurrajong. Senator FAULKNER-Yes, outside PM&C. Ms Sidhu-That is right. Senator FAULKNER-Yes. And then you go to the Hotel Kurrajong. Ms Sidhu-That is right. CERTAIN MARITIME INCIDENT CMI 1784 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-Who decided the venue? Ms Sidhu-Dr Hammer. Senator FAULKNER-Did you ask why? Ms Sidhu-I do not recall asking why, no. Senator FAULKNER-You did not think it was a bit odd, meeting on Sunday in his home and then a meeting at the Hotel Kurrajong the next day to discuss Commander King's evidence? Ms Sidhu-No. I did not reflect on that at that time, no. Senator FAULKNER-You have reflected on it since? Ms Sidhu-Well, yes. But if I put it down to anything and if I put it down to anything now it would be to Dr Hammer trying to find a quiet place where he could concentrate on the issue at hand rather than in the hustle and bustle around his office. Senator FAULKNER-How many work meetings do PM&C officers have at the Hotel Kurrajong? Ms Sidhu-Not that many. Senator FAULKNER-How many have you had? Ms Sidhu-In a work sense? Senator FAULKNER-Yes. Ms Sidhu-I can recall one other occasion where we had a branch meeting at the Hotel Kurrajong and then just moved on to a social gathering. Senator FAULKNER-Pretty unusual? Ms Sidhu-It is not that usual, no. Senator FAULKNER-No. It is not usual at all, is it? How did Commander King appear? Ms Sidhu-Initially when I met him: calm, relaxed, amiable. Senator FAULKNER-Was he in uniform? Ms Sidhu-Yes. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1785 Senator FAULKNER-In your letter to Mr Moore-Wilton, you indicated that Dr Hammer, at the meeting, seemed to be frustrated with Commander King. Your words are that Dr Hammer was `trying to coach Commander King to be more forthcoming about his recollections of the 11 October meeting'. Ms Sidhu-Trying to `coax' Commander King. Senator FAULKNER-Yes. I think that was the word you used, wasn't it? Ms Sidhu-Yes, not `coach'. Senator FAULKNER-What did I say? Ms Sidhu-Coach. Senator FAULKNER-I meant to say, `coax Commander King'. It is just a direct quote from you, I thought, from your letter. You do accept that Commander King was uncomfortable? Ms Sidhu-Yes, I do. Senator FAULKNER-How did you come to that conclusion? Ms Sidhu-In my letter to Mr Moore-Wilton, I described the sequence of events. Commander King appeared reasonably calm until we started sharing our recollections and he was then invited to share his recollections of the meeting. He appeared uncomfortable in saying anything. He appeared reluctant to say very much. Senator FAULKNER-Dr Hammer was questioning him about his side of the story, if you like, his version of events, wasn't he? Ms Sidhu-It was not an interrogation. Dr Hammer merely invited him to share his recollections. Senator FAULKNER-You do not interpret it as an interrogation, but Commander King might have. Ms Sidhu-He may well have, yes. Senator FAULKNER-But he was being questioned about his recollection of events, wasn't he? Ms Sidhu-Yes, that is right, but so were we all. Senator FAULKNER-Was Commander King questioning Dr Hammer about Dr Hammer's view of the world? Ms Sidhu-No. CERTAIN MARITIME INCIDENT CMI 1786 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-No. So we were not all being questioned, were we? Ms Sidhu-But I was, as well. Senator FAULKNER-Yes, but Commander King was not. He was the bunny in the spotlight, wasn't he? Ms Sidhu-Not necessarily, no. I described my recollections of that meeting and my recollections of my contacts with Commander King. This was a three-way exchange. But Dr Hammer, yes, did ask Commander King for further information, and he did press him for a bit more information because Commander King had said in fact very little. As I say in my statement, I believe that Dr Hammer was trying to find tactics to encourage Commander King to share a bit more of what he remembered. Senator FAULKNER-Do you think Dr Hammer appeared uncomfortable with some of what Commander King was saying? Ms Sidhu-No. There is only one point at which I think Dr Hammer may have had some concern. As I describe in my statement, Dr Hammer had basically given a broad description of his recollection of the meeting, and Commander King had tried to cast some of that in slightly different words. I believe that Dr Hammer at one stage frowned and said words to the effect of `that is not my memory' or `that is not how I recall it', but that was a momentary thing. Senator FAULKNER-So it was a pretty tense meeting, wasn't it? Ms Sidhu-No. Senator MASON-What part of the word `no' don't you understand, Senator Faulkner? Senator FAULKNER-I would have thought it would be pretty tense when, putting aside Commander King's view of the meeting, Ms Sidhu herself accepts that he was uncomfortable. Senator MASON-Someone frowned! Senator FAULKNER-`Uncomfortable', is her word. Senator BRANDIS-Senator Faulkner, you were not at the meeting and Ms Sidhu was, and you had her unequivocal answer. CHAIR-Order! We have a witness before us; let us continue with questions. Senator FAULKNER-So you did not find it tense when you thought that Commander King was uncomfortable? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1787 Ms Sidhu-I have said to this committee before and I have said in my letter to Mr Moore-Wilton that there was a moment in which Commander King was uncomfortable; Dr Hammer posed a question, he clearly appeared uncomfortable and we moved on. It was a moment in a half-hour meeting. Senator FAULKNER-So was it tense for that moment? Ms Sidhu-Yes, I think it was a little bit. Senator FAULKNER-Thank you. Have you got that on board, Senator Brandis? Were you uncomfortable? Senator BRANDIS-That is the limit of your forensic triumph, Senator Faulkner; I suggest you move on. CHAIR-Let us stop debating among the committee and get on with the questions. Ms Sidhu-I was only uncomfortable at the moment in which Commander King appeared uncomfortable. I shared his discomfort at that time. Senator FAULKNER-So you were perfectly happy that such a meeting should take place in such a venue, about such a subject with such urgency. Were there no problems, as far as you were concerned? Ms Sidhu-I welcomed the meeting as an opportunity to refresh my memory about it. I had not spoken to Commander King in any detail about these events and really had only discussed it with Dr Hammer very briefly on one previous occasion, so I was in fact looking forward to the meeting as an opportunity to refresh my memory of the events. I did not see anything untoward in the meeting at the time that it was called. Senator FAULKNER-So was it only limited to possible evidence-refreshing memories about evidence before Senate committees? Was there any discussion about any other matter? Ms Sidhu-Yes, the discussion ranged over a number of matters and issues. It was largely a social discussion, and the discussion of our meeting probably constituted 10 minutes of the entire meeting. Senator FAULKNER-Was the preparation that was being undertaken for the submission for the department ever considered? I mean, you had the electronic calendar and so forth. Ms Sidhu-We did not discuss that specifically at this meeting, although we were aware that, at that stage, that was still in the air. I approached the meeting with a view to getting a better sense of dates, places and events. Senator FAULKNER-Was that relevant to the Prime Minister and Cabinet submission? CERTAIN MARITIME INCIDENT CMI 1788 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-Yes. It seemed to me to be relevant to the PM&C submission, because it would fill in some gaps in my memory. Senator FAULKNER-Was that still a matter that was under consideration at that time? Ms Sidhu-Is far as I was aware, it was still a live thing. Senator FAULKNER-Was there an issue about what Commander King might contribute to the submission? Ms Sidhu-No, not explicitly. Senator FAULKNER-Not explicitly? Ms Sidhu-Nobody had mentioned that this had anything to do with Commander King's possible contribution to the submission. It was- Senator FAULKNER-Just his evidence? Ms Sidhu-just that Dr Hammer and I had had a brief discussion some weeks earlier about our recollections of that three-way meeting and we thought that Commander King might have something to contribute to that recollection. Senator FAULKNER-But was the Prime Minister and Cabinet submission discussed at the Hotel Kurrajong? Ms Sidhu-Not that I remember, no. Senator FAULKNER-What sort of questions did Dr Hammer ask of Commander King? Ms Sidhu-As I have already written down in my letter to Mr Moore-Wilton, Dr Hammer opened the meeting and suggested that we share our recollections. He, in fact, volunteered his recollections to begin with. Senator FAULKNER-You say `opened the meeting'. This was a social get- together, wasn't it? Ms Sidhu-Yes. Senator FAULKNER-So he opened the social get-together. Ms Sidhu-He just opened the discussion. We had been discussing other things. He moved to this topic. Senator FAULKNER-Did you think it was a meeting or not? What do you reckon its status was? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1789 Ms Sidhu-I did not see it as a formal meeting. Senator FAULKNER-I should not have interrupted, but I am glad I did. Anyway, Dr Hammer kicks it off. Ms Sidhu-He recounted his recollections of the meeting and he said to Commander King, `That is what I remember. What do you recall?' or words to that effect. Commander King responded in noncommittal terms, and Dr Hammer, I believe, asked Commander King to try and describe the meeting in his own words, to put his own recollection to it, at which point Commander King did in fact provide a very general recollection, concluding with some comments on what he thought might have been Dr Hammer's response. Dr Hammer, as I said, at this point frowned a little and then said, `Perhaps if you were asked by the Senate committee a question to this effect, how would you answer it?' I believe that that question was posed to try and elicit further information from Commander King on the issue. Senator FAULKNER-Did Dr Hammer indicate at any stage that senior officers of Prime Minister and Cabinet had requested that this process be undertaken? Ms Sidhu-No. Senator FAULKNER-So Commander King did not have that context at all? Ms Sidhu-I guess not, no. Senator FAULKNER-Did it never cross your mind that he might have wondered what was happening there? Ms Sidhu-He may have, but, as I said to you, by that stage I had already had two telephone conversations with him about the meeting. I believed that I communicated quite clearly to him that this was a meeting to help us refresh our memories about that earlier meeting. Senator FAULKNER-Your contact was made on Friday afternoon; Dr Hammer tried to establish a meeting at his home on the Sunday afternoon; you did meet at the Hotel Kurrajong on Monday. Did Dr Hammer, at any stage, go into the urgency of this with Commander King? Ms Sidhu-No. Senator FAULKNER-So there was not much, or any, background provided? Ms Sidhu-Aside from Commander King being aware that a submission was imminent and my explanations to him that this would be an opportunity to refresh our memories, no. Senator FAULKNER-But it was not just a submission, was it? Dr Hammer was talking about possible questions that might be asked at a Senate committee. CERTAIN MARITIME INCIDENT CMI 1790 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-That is true. ACTING CHAIR (Senator Brandis)-At the time, did you know in what form the evidence would come before this inquiry-in other words, whether by way of a written submission or by way of appearances by witnesses? Ms Sidhu-No. If anything, I would have thought that it would have been a submission rather than evidence. I believe it was not until some time later that I even became aware that I or anyone else would be called to give evidence. ACTING CHAIR-That was your state of mind at the time of these meetings, was it? Ms Sidhu-Yes, exactly. ACTING CHAIR-Had it been a submission, as you at the time expected, was it in your contemplation that it probably would have been a joint submission on which the three of you, among others, would have worked? Ms Sidhu-Yes. My understanding was that each of us would submit our recollections and it would be compiled. Maybe there would be somebody in PM&C who might ask questions and would then draft a departmental submission. ACTING CHAIR-So, contrary to the long suggestion that has been put to you by Senator Faulkner that this amounts in effect to coaching witnesses, could this not be seen, according to your understanding at the time, as more in the nature of a preliminary meeting for the purpose of discussing what you thought was likely to become a joint submission? Ms Sidhu-Yes. Senator FAULKNER-Ms Sidhu, you have told me on a couple of occasions that this meeting was held to `refresh our memories'. Ms Sidhu-Yes. Senator FAULKNER-Do you stand by that? Ms Sidhu-Yes, I do. Senator FAULKNER-I put it to you from what I have heard-and I would like you to comment on this-that it sounds much more like trying to get stories straight than refreshing memories. I think that is a reasonable conclusion to come to, and I will be interested in your response. Ms Sidhu-I think there is fairly strong evidence to the contrary, which is that it was at that meeting that I became aware that Commander King had been told this story directly from the Navy. In no way has that changed my recollection or my CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1791 statements about what I recall about the source of that information; nor, indeed, has that altered Commander King's testimony. If anything, it was an opportunity to share with each other what we each remembered, but there is clear evidence that nothing has come out that it in any way stitched up a story. Senator FAULKNER-I suggest to you that it was because the meeting was not only about refreshing memories but also about getting stories straight that Commander King became concerned and Dr Hammer became frustrated. Ms Sidhu-No; that is not my observation of the meeting. My observation was that Commander King seemed uncomfortable because he was being put on the spot and asked about something. Senator FAULKNER-Yes, because he was not playing ball. Ms Sidhu-That is your interpretation of the meeting, but that is not how I perceived it. Senator JACINTA COLLINS-Ms Sidhu, I want to recap what you have indicated occurred at this meeting. Firstly, Dr Hammer gave his recollection of the discussion. He then put it over to Commander King. You said a moment ago that Commander King first responded in noncommittal terms. You then said that he responded in general terms after a second attempt. Ms Sidhu-That is right. Senator JACINTA COLLINS-Is that the stage when Dr Hammer then frowned? Ms Sidhu-Yes. At the end of Commander King's response- Senator JACINTA COLLINS-At the second attempt? Ms Sidhu-At the second attempt. He tried to put words to what he had said and what Dr Hammer might have said, and all I can say is that Dr Hammer frowned. That is my clear memory of his response at that point. Senator JACINTA COLLINS-Was this before Dr Hammer framed it as a possible Senate committee question? Ms Sidhu-Yes. Senator JACINTA COLLINS-If I recall correctly from Commander King's evidence, there was some notion that Dr Hammer's experience and understanding of how parliament works might provide him with guidance as to how he might need to deal with information about the discussion, and that is why the practice of a question that might occur before a Senate committee was raised. Can you describe how a question from a Senate committee was presented to Commander King? CERTAIN MARITIME INCIDENT CMI 1792 SENATE-Select Thursday, 13 June 2002 Ms Sidhu-It followed Commander King's explanation, in very general terms. Dr Hammer responded by saying, `How would you then respond if you were asked by the Senate committee about what happened, for example, when you told Dr Hammer about the information?' or words to that effect. In a way, I guess, he was perhaps trying to get Commander King to focus on- Senator JACINTA COLLINS-Being specific? Ms Sidhu-Yes, being specific about what he was saying. Commander King at that stage said he did not really feel comfortable with proceeding. Dr Hammer dropped the subject and moved on to something else. He made no attempt to coach or lead Commander King in any way on how he might respond to that question. Senator JACINTA COLLINS-So after Dr Hammer's third attempt to get Commander King to be more specific he then moved on? Ms Sidhu-Yes. Senator JACINTA COLLINS-You said a moment ago that you shared Commander King's discomfort. Ms Sidhu-Yes, that is right. Senator JACINTA COLLINS-Not that you sensed it or that you understood it, but that you actually shared it. Ms Sidhu-Yes. Senator JACINTA COLLINS-Can you explain for us what you shared? Ms Sidhu-He clearly appeared uncomfortable and I did sense his discomfort, but- Senator JACINTA COLLINS-No, you said you shared his discomfort- Ms Sidhu-I felt uncomfortable on his behalf. Senator BRANDIS-Chair, I raise a point of order. Senator Collins should let the witness finish the answer. Ms Sidhu, would you care to finish that answer, please. CHAIR-Was that a point of order? Senator JACINTA COLLINS-I think Senator Brandis thinks that he is in the chair. Senator BRANDIS-I think it is fair to the witness not to cut her off in the middle of that particular answer. It is obviously an important question; therefore it is obviously an important answer. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1793 Senator JACINTA COLLINS-If you applied the same codes to your own style of questioning, Senator Brandis, I would be very happy. CHAIR-I think that all senators must be aware that we are here to seek information. Witnesses should be able to answer the questions. I am sure that that will be observed. If it is not then I reserve the right. Ms Sidhu-He felt uncomfortable and the best I can say is that I felt uncomfortable as well on his behalf. Senator JACINTA COLLINS-Your words earlier were that you `shared his discomfort'. Sharing discomfort implies that you also felt uncomfortable with what was transpiring. Is that not an accurate way of describing it? Ms Sidhu-That is one way of describing it, yes. The reason I felt uncomfortable was that Commander King appeared uncomfortable to me. I shared his sense of discomfort at what was happening. Senator JACINTA COLLINS-Did you yourself feel that the way in which Dr Hammer was conducting himself was inappropriate? Ms Sidhu-I would not say inappropriate but, as I think I said before, I knew it would be something that Commander King would not feel comfortable or easy with. Senator JACINTA COLLINS-Why was that? Ms Sidhu-He is not a person who enjoys being in the spotlight, I suppose. He was being put on the spot in this case with Dr Hammer's questions and I could see that he was not comfortable with the position he found himself in at that point. Senator JACINTA COLLINS-Did you think it was appropriate that Dr Hammer was putting him on the spot? Ms Sidhu-I cannot really comment. I did not think about it in those terms. Senator JACINTA COLLINS-As I said, the words you used earlier were that you `shared his discomfort'-not that you sensed it but that you actually shared it. Now you cannot tell me whether you thought the way Dr Hammer was putting Commander King on the spot was inappropriate. Ms Sidhu-All I am saying is that it was outside their normal social interaction, so it was just an uncomfortable moment. I would really rather not say whether or not I thought it was appropriate. I really did not think of it in those terms. Senator JACINTA COLLINS-Were you aware of Commander King's view that he did not want to get into specifics? Ms Sidhu-Not before the meeting, no. CERTAIN MARITIME INCIDENT CMI 1794 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-Was that raised during the meeting? Ms Sidhu-No. It only became evident in Commander King's responses to Dr Hammer's questions. Senator JACINTA COLLINS-Did he raise that in his responses or did he just not cooperate with attempts to pin him down? Ms Sidhu-He declined very politely to answer any further questions. Senator JACINTA COLLINS-But he did not say, `I do not want to go into specific details at this time'? Ms Sidhu-I cannot recall him saying that. Senator JACINTA COLLINS-He just declined politely to answer questions? Ms Sidhu-That is right. Senator FAULKNER-Did this meeting meet your expectations? Ms Sidhu-Not entirely. It did not cast as much light as I had hoped on the three- way meeting we had had in October. But regarding the discussion that I had with Commander King about the nature of our initial discussion, I came away from that meeting with a better understanding of how he had come by the information and why he had reacted the way he had. Senator FAULKNER-Were you expecting the sort of discussion that occurred at the Kurrajong? Ms Sidhu-No. Senator FAULKNER-What were you expecting? Ms Sidhu-I guess I was expecting to come away with a clearer idea of what had transpired at our three-way meeting on 11 October. Senator FAULKNER-Why were you not expecting what did occur? Ms Sidhu-Mostly because I was not expecting Commander King to hold back on information in the way he had. Senator FAULKNER-To hold back? Ms Sidhu-He was not willing to share the information or his recollections. Senator FAULKNER-One of the problems is that obviously there were differing views. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1795 Ms Sidhu-I do not think there were differing views; there were just differing recollections. Senator FAULKNER-Differing recollections, differing views-he thought he was being heavied. Senator BRANDIS-Senator Faulkner, that is quite improper. He never said that in his evidence and his evidence was directly to the contrary effect. You should not put that to the witness. You are misleading the witness. Senator FAULKNER-Commander King was being put on the spot. Ms Sidhu-For one question. Senator FAULKNER-That was the name of the game. Senator JACINTA COLLINS-Ms Sidhu, did you say with one question? Ms Sidhu-Yes, with respect to that particular question. Senator FAULKNER-So you do accept that Dr Hammer put him on the spot for one question? Ms Sidhu-I have said that before; yes. Senator JACINTA COLLINS-But we just went over the fact that that one question followed two earlier questions in the discussion. Ms Sidhu-Yes, but I have also said that it was in response to that one question that he was very clearly uncomfortable. Senator JACINTA COLLINS-So after a lead-up of one attempt, then another attempt, then the frown and the purported Senate committee question, Commander King finally gave up his polite attempt not to respond? Ms Sidhu-That is true, yes. Senator JACINTA COLLINS-So it was not after just one question? Ms Sidhu-No. Senator JACINTA COLLINS-There is one further issue that I want to pin down in relation to Ms Bryant. Can you tell me about all of your contacts with Ms Bryant in relation to these issues? Ms Sidhu-Are you referring specifically to the photographs issue, because I have had other contact with Ms Bryant on related issues? CERTAIN MARITIME INCIDENT CMI 1796 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-All contacts relevant to this inquiry. Was the first of those when Ms Bryant was conducting her report? Ms Sidhu-Yes. That would have been in December when she telephoned me to try to clarify the date of my discussion with Ms Wildermuth. Senator JACINTA COLLINS-How was Ms Bryant aware of that discussion? Ms Sidhu-I presume it was through Ms Wildermuth. Ms Wildermuth reports directly to Ms Bryant. I was not, therefore, surprised to hear that Ms Bryant had heard of this, obviously. Subsequently-late January or perhaps February; I believe it was February-Ms Bryant called me to her office, where she asked if I would think about putting together a memory jogger or just writing down what I could recall of how I heard the information about the photographs and how I had passed it on and when I had done so. Senator JACINTA COLLINS-Just before we move on to this February contact, let us go back to the December one. She contacted you with a request? Ms Sidhu-Yes. Senator JACINTA COLLINS-What happened with that request? Ms Sidhu-It was a phone call, literally. She called me on the phone and asked me if I could recall when I had spoken to Ms Wildermuth. I put my diary out in front of me and started flicking through the pages to try to pin down the date. I may have placed it somewhere in the first week of November or late October, but I was not specific. She asked me if I could be more specific and if there was any other information I had that might help me pin the date down. At that point I said, `No, I did not have any further information,' and we left it at that. Senator JACINTA COLLINS-So in December you did not undertake to see if you could pin down the date? Ms Sidhu-That is right. I did not undertake to do anything further. Senator JACINTA COLLINS-Even though Ms Bryant was conducting this inquiry and, for instance, a discussion with Commander King at that point in time might have helped narrow down a date, you did nothing? Ms Sidhu-That is right-simply because it was a quick telephone call and she did not indicate to me that she wished to pursue it any further either. Senator JACINTA COLLINS-Okay. The next contact was this one that you were just talking about in late February for a memory jogger? Ms Sidhu-That is right; in February. Ms Bryant informed me that work was under way in the department to put together a departmental submission to this committee. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1797 She said that she thought it would be useful or helpful if I could write down what I could recall about my contacts and my information about this particular event. She specifically asked me if I could try to be specific about dates and people with whom I had spoken, and I undertook to do that. Senator JACINTA COLLINS-Did she raise the issue of her report not covering this material? Ms Sidhu-No. Senator JACINTA COLLINS-So there was no discussion about that interaction not being reported on in her report? Ms Sidhu-There was no discussion on that. It was purely a forward looking discussion. Senator JACINTA COLLINS-In terms of preparing the submission? Ms Sidhu-That is right. Senator JACINTA COLLINS-Did she describe to you at that stage how she understood that submission, which never eventuated, would be compiled? Ms Sidhu-No, she did not. I understood through our discussion that I would probably be asked for further information through her and that I would deal with her if I had any information to pass on about my role in all of this. Senator JACINTA COLLINS-This happened in late February. Do you have any recollection of whether it was before or after Senate estimates? Ms Sidhu-I do not know whether it was in late February; I think it might have been closer to the middle of February. I think it would have been before Senate estimates. Senator JACINTA COLLINS-So before Ms Bryant appeared at the Senate estimates committee and indicated that it was an oversight or that she just did not think to incorporate this material, she was actually contacting you to get more information on that material? Ms Sidhu-She suggested to me that I compile a memory jogger. She did not ask for that information nor did she suggest that it was related to Senate estimates. I believe that the suggestion was that it would be related to this committee's work. Senator JACINTA COLLINS-Did you have any further contacts beyond this one? Ms Sidhu-She did contact me again-and I again cannot recall when; it may have been sometime early in March-to ask whether I had indeed written down my CERTAIN MARITIME INCIDENT CMI 1798 SENATE-Select Thursday, 13 June 2002 recollections of this issue. I responded that I had, she asked whether she could get a copy of what I had written and I gave her a copy of that. Senator JACINTA COLLINS-Why had that not been a matter of course after her request in mid-February? Ms Sidhu-My understanding was that she had asked me to do it purely for my own benefit. It was a suggestion that, before being asked any questions in the context of a departmental submission, it would be useful if I had gone away and in a quiet moment and written down my recollections, rather than trying to remember things on the spot. Senator JACINTA COLLINS-I understood you earlier to be saying that, in mid- February, Ms Bryant indicated that she was compiling a departmental submission. Ms Sidhu-No. She indicated that it was in the context of compiling a departmental submission, but she did not at that point suggest that I should contribute whatever I wrote to the departmental submission. My very clear recollection is that she said that it would be useful for me to be clear on the sequence of events and on my recollections should I be asked in the context of a departmental submission to provide that information or to contribute my recollections. So it was a suggestion to do that principally for my own benefit. Senator JACINTA COLLINS-She was giving you collegial advanced warning? Ms Sidhu-I did not see it that way. I think it was just a sensible approach. I think she felt that, if we did have to compile something, we would have to do it at fairly short notice, and I may not have the opportunity to gather my thoughts. Senator JACINTA COLLINS-Then, come early March, she is seeking such? Ms Sidhu-Yes. Senator JACINTA COLLINS-You then sent her a copy of what you had done? Ms Sidhu-Yes, that is right. Senator JACINTA COLLINS-Senator Faulkner has asked you to provide that? Ms Sidhu-I have undertaken to do that, yes. Senator JACINTA COLLINS-So after early March? Ms Sidhu-I had a couple of other contacts with her, but I cannot recall the specific context- Senator JACINTA COLLINS-Perhaps it would help if I asked you to provide the committee with all details of your contacts with Ms Bryant. If you are having CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1799 problems definitively saying that there might have been a couple of others relevant to our inquires but you cannot pin them down right now, it might be best for you to take it on notice to provide an exhaustive description of the contacts that you had with Ms Bryant. Ms Sidhu-Okay. Senator JACINTA COLLINS-Take as given those you have already provided on the record but add further contacts, if there are others. Ms Sidhu-Fine. Senator JACINTA COLLINS-Thank you. Senator MASON-I have a quick question of geography. The Department of the Prime Minister and Cabinet is housed in Barton, isn't it? Ms Sidhu-National Circuit, yes. Senator MASON-How far is it from the Hotel Kurrajong? Ms Sidhu-It is across the road. Senator MASON-Do officers from PM&C commonly go there and have coffee and have a drink? Ms Sidhu-It is very common, yes. It is the closest coffee shop, I suppose, to PM&C. CHAIR-There being no final questions, thank you, Ms Sidhu. That concludes your evidence. Thank you for your attendance and your patience. Proceedings suspended from 11.25 a.m. to 11.39 a.m. CERTAIN MARITIME INCIDENT CMI 1800 SENATE-Select Thursday, 13 June 2002 HAMMER, Dr Brendon, former Assistant Secretary, Defence, Intelligence and Security Branch, Department of the Prime Minister and Cabinet CHAIR-We will resume the hearing. Welcome to the witness table, Dr Hammer. I think you have been present in this hearing, albeit in the back stalls, sufficiently long enough to be familiar with our procedure. I would invite you to make an oath or affirmation and, if you have an opening statement that you wish to make, proceed with that and then make yourself available for questions from the committee. Do you have a formal statement? Dr Hammer-I have a couple of talking points. CHAIR-Please proceed. Dr Hammer-The first thing I would like to do is to give an assurance that I am an honest man and that I will answer the committee's questions as honestly and as fully as I possibly can-I do wish to assist the committee as fully as possible. Secondly, I would like to say on my own behalf that I have never sought to influence anyone's testimony to the committee and I think the Hansard so far bears that out. I would also like to say, simply, because I do think it is relevant to the proceedings, that I have never had any political affiliation. I have never been a member of a political party and I have never felt myself to come under political influence by any person that I have worked with in the discharge of my duties as a public servant. I would like the committee to note my letter to the Secretary of the Department of the Prime Minister and Cabinet of 6 May, in which I gave a chronology of relevant discussions and communications in relation to the matters before the committee, particularly in relation to a meeting that took place in my office on 11 October 2001 and another gathering that took place at the Hotel Kurrajong in March 2002. Before taking your questions I think it is probably salient to point out that, given the amount of time that the committee has spent on those two meetings, the substantive elements of those meetings I calculate out to a sum total of 13 minutes in real time: three minutes for the meeting in my office and approximately 10, maybe 15, minutes at the Kurrajong on matters to do with material before this committee. In the wider balance of affairs, the amount of time spent on these issues in Ms Jane Halton's task force, within the Department of Defence and in other areas seems to me to be a massively larger period of time and have a massively greater focus than what took place over this very short period of time at the two meetings in which I was involved, which are, incidentally, the sum total of my substantive involvement in issues before this committee. CHAIR-Thank you. I think we started with Ms Sidhu by giving the call to Senator Faulkner and under the rotation policy that I have been pursuing, therefore, the call is offered to you, Senator Brandis. Senator BRANDIS-I do not have any questions for the time being. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1801 CHAIR-Senator Mason? Senator MASON-I have no questions. CHAIR-Senator Bartlett? Senator BARTLETT-I do not think I have any questions. CHAIR-Senator Faulkner? Senator FAULKNER-I am going to disappoint you by asking one or two questions, Chair. CHAIR-I rather suspected that you might so you have not disappointed me in the slightest. Senator FAULKNER-Dr Hammer, you have indicated that the first you knew about the matters that this committee is investigating was when Ms Sidhu and Commander King met you in your office on 11 October last year. Could you confirm whether that was the case? Dr Hammer-In regard to the terms of reference of this committee, I may have had contact with people or involvement in relation to broader issues to do with illegal immigration and people smuggling, but in terms of what the committee has been largely focused on in questioning Commander King and Ms Sidhu, yes, that is correct. Senator FAULKNER-Fair enough. So you had a broad understanding of Operation Relex? Dr Hammer-I had a degree of understanding of Operation Relex. Part of my responsibilities as the assistant secretary for defence, intelligence and security was to keep an eye on the disposition of the Australian Defence Force. I was particularly focused on preparations involved in Operation Slipper, so it was of some interest to me to know what assets might be involved in Operation Relex because the Defence Force is finite and if you are using assets in one place you cannot use them in another. Senator FAULKNER-Were you aware a couple of days before the meeting in your office, which occurred with three people-you, Ms Sidhu and Commander King-that there had been a very significant amount of publicity about what was occurring with SIEV4 and allegations that asylum seekers had thrown their children overboard? Did you have that background before 11 October? Dr Hammer-I would like to put that in context. I did make an effort to cover most of the media. Usually I listen to the radio in the mornings because it is efficient for me to do that. But, on 11 October, we were one month out from what I would consider to be, after 50 years, a major change in the international security environment through the September 11 attacks on the United States. The Australian government's response to that was directly within my area of responsibility. People- CERTAIN MARITIME INCIDENT CMI 1802 SENATE-Select Thursday, 13 June 2002 smuggling-illegal immigration-was never within my area of responsibility. I was highly focused on the Australian government's response, including the preparation of Australian troops to go overseas and fight, potentially in Afghanistan. I must admit that, through late nights and meetings in the early hours of the morning-I had at least one meeting in the early hours of the morning-I may have developed a bit of tunnel vision about what was going on in the world around me. I would say that I had limited awareness. I was aware that there was a whole lot of stuff in the newspapers and so forth about this- Senator FAULKNER-Yes, it was dominating the news media. Dr Hammer-Yes, but I was not thinking about it or analysing it. Senator FAULKNER-I am just asking whether you were aware of it. I would not expect that you would be wasting too much of your time analysing it. For some of us involved in politics it was pretty much to the front and centre of our minds, but I appreciate that it was not your primary responsibility. Anyway, prior to your meeting with Ms Sidhu and Commander King, were you aware of the claims that children had been thrown overboard from an asylum seeker vessel? Dr Hammer-I certainly would have heard something about it, yes. Senator FAULKNER-It would absolutely beggar belief if you did not, because it was front-page news and dominating the media. You would be living in a bubble if you did not know about it. Dr Hammer-When I say `heard', I mean heard from the radio, which I listen to in the morning. Senator FAULKNER-So you did know about it? Dr Hammer-Yes. Senator FAULKNER-You did know about statements that children had been thrown overboard? Dr Hammer-Yes. To me, it was just more news on issues of which I did not have carriage. When you work in the kind of job that I was doing in the Prime Minister's department, you have very little discretionary time. Certainly the information would have been coming to me, but the part of my mind that was filtering and analysing things was not engaging on it, partly because I knew that there were a whole lot of other people highly focused on it. As to the issue of whether something was being made as a claim or as a statement of fact, I did not get to the point of thinking about that. Senator FAULKNER-But you were aware of the issue about children being thrown overboard? You were either aware of it or you were not. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1803 Dr Hammer-I was aware- Senator FAULKNER-Thank you. Dr Hammer-but, as an issue, I do not know. It was something that was in the media. Senator BRANDIS-Dr Hammer, how would you describe your level of awareness at the time? Dr Hammer-Probably about the same as my level of awareness at the moment- as somebody who has very little interest in sport at all-of what is going on in the World Cup soccer. I know a couple of key things about it-such as that the French and the Argentinians are out and that is a big deal-but, to me, it means nothing. It is just something I know because I picked it up peripherally in my scanning of the media. Senator FAULKNER-You know the World Cup soccer is on. Dr Hammer-I do. Senator FAULKNER-We have established that. Did you know that there were suggestions about children being thrown overboard at the time? Dr Hammer-I would have known that, yes. Senator FAULKNER-Did you know, beyond that, that there had been massive publicity in relation to photographs that were supporting that case-that they had been published, there had been questions about the accuracy of the claims and there were front page stories in the newspapers saying that there were photographs that actually represented this incident? Dr Hammer-I was aware that there were photographs on the front pages of newspapers, because I could see them as I walked past them. I was aware broadly that there were issues but I was not thinking about them. Senator FAULKNER-Fair enough. On this day that you have your meeting, you have colour photographs on the front pages of newspapers. Let me give you some examples-you may not read any of these newspapers. Dr Hammer-I read press clippings, which often have photos excised out of them or do not show photos very clearly- Senator FAULKNER-Sure, but they would have the articles, wouldn't they- like the Daily Telegraph story `Election 2001: the cruel sea: proof that boat people threw children overboard'? I will not mention the journalists that wrote any of these stories-and I might quickly add that I do not blame them for writing them. There was a Herald Sun story `Water torture: Navy photos show children overboard', there CERTAIN MARITIME INCIDENT CMI 1804 SENATE-Select Thursday, 13 June 2002 was a Sydney Morning Herald story entitled `Pictures tell the story, says Reith', there was the Age story `Photos prove our point on asylum seekers, says Reith' and so on. So this was absolutely top of the pops as far as the media was concerned at the time- on this day, on 11 October. Dr Hammer-The way I handled media-and it is important to note that in the branch I was running maybe 90 to 95 per cent of what I handled was classified reading material-was that media stories would come to me. I would listen to the radio but they also came in rather fat bundles of press clippings. I tried to get to the press clippings every day. When I did, I would flick through them to the stories which were relevant to me. Sure I noticed that there were a large number of stories at the top of the press clippings on this matter, but I did not read them. Senator FAULKNER-We know that you do not turn on SBS to watch the World Cup soccer-and fair enough. Do you turn on the television at the end of the day to watch any of the news services, either the late news services or the evening news services? Dr Hammer-Usually my working day at PM&C finished well after programs like the 7.30 Report, and when I got home I would rather spend the time down than up. I would say that for 90 to 95 per cent of my work the information is not in the public domain; it is all highly classified information. I had a lot of that to read and that was a big reading load for me-and if I did not do it, others would not. Senator FAULKNER-We have established that you knew about the claims that children were being thrown overboard. That is right, isn't it? Dr Hammer-Yes. I did not know about them as claims, though; I just- Senator FAULKNER-Sure; that is my terminology. Let us call it the publicity about children being thrown overboard by asylum seekers; were you aware of that? Dr Hammer-Yes. Senator FAULKNER-My next question is: were you aware that there had been the publication and massive publicity about photographs that were presented as representing that event? Dr Hammer-I knew that there were photographs in the press depicting the event. Senator FAULKNER-Were you aware of both of those facts when Ms Sidhu and Commander King came to speak to you on 11 October? Dr Hammer-The only recollection I have in relation to that is that as I had walked into my office in the morning I had seen the papers lying out, as they usually do in the division, on a table and I had seen that there were lots of big colour photographs on the front pages. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1805 Senator FAULKNER-Do you social isolates down there in PM&C have TVs in your offices? Dr Hammer-Yes, I do. Senator FAULKNER-But you had not turned it on. Senator JACINTA COLLINS-Dr Hammer, I think, had a thought at that stage. You do turn it on? Dr Hammer-I was just thinking about how rarely I had an opportunity to turn it on. Senator FAULKNER-Fair enough. There was that level of knowledge, anyway, when you had your meeting on the 11th with Ms Sidhu and Commander King. I appreciate your saying to us it was certainly not front and centre in your mind but you had that as background information. Is that a fair way of summing it up? Dr Hammer-I think so, yes. Senator FAULKNER-What did Ms Sidhu and Commander King say to you in the meeting at your office on 11 October 2001? Dr Hammer-The meeting that took place was part of what one might call a regular series of meetings. Commander King often used to come on his own, but he was with Ms Sidhu on this occasion-but that is not unusual either. It was part of a regular series of meetings where Commander King, who we had asked to attend so- called Operation Slipper briefings at Strategic Command in Defence, would come in and tell me what he had learned about the disposition of Australian forces in relation to operations in the war against terrorism. I was highly interested in that issue, so I wanted to see him at some point quite soon after he had been to any one of those Operation Slipper briefings. My understanding was that that was what this meeting was to be about. Commander King and Ms Sidhu came into my office. They sat down and Commander King proceeded to brief me in relation to Operation Slipper matters. It is probably an indication of how my mind works that I recall hardly any of the detail at all of what Commander King told me on that day in relation to Operation Slipper, even though that was a very important thing to me at the time. But that is because events have moved on, Operation Slipper has moved on and so on. At the end of the briefing I recall someone, Commander King or Ms Sidhu, saying, `There is something else,' and me-probably on that day a little not agitated but just very busy and pressured-thinking, `What is this?' Commander King then proceeded to say, `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.' He might have used a little more shorthand than that. 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 CERTAIN MARITIME INCIDENT CMI 1806 SENATE-Select Thursday, 13 June 2002 even being bothered, frankly, with a rumour-through an entirely inappropriate channel, incidentally-about something that I did not have within my area of responsibility. I knew that Ms Jane Halton had a government-wide task force operating on illegal immigration and people-smuggling and that there were senior Defence representatives on that task force. I felt, `Why am I being apprised of this rumour?' and I felt also that if it was important two things would happen: one, it would go through to Jane Halton through the proper, appropriate and predetermined channels for liaison between Defence and PM&C on people-smuggling and illegal immigration; and, two, if the information had any credibility or was anything other than a bit of scuttlebutt that Commander King had picked up over in Defence at a meeting that was not supposed to be about people-smuggling and illegal immigration, someone would contact me or someone else in the Department of the Prime Minister and Cabinet in pretty short order and say, `Hey, guess what?'-that at some level someone would do that. In the job that I had it was almost unheard of that an important piece of information could be mentioned to you only once in the form of a rumour; you would keep hearing about it. Somebody would ring you up. The information would come to you. So, I guess the point I am making is that I listened to what Commander King had to say and I thought: `I do not need to action this any further. 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.' Senator FAULKNER-Why did you think it was a rumour? Why do you describe it as a rumour? Dr Hammer-It was presented to me as a rumour. Senator FAULKNER-Who said it was a rumour-Ms Sidhu or Commander King? Dr Hammer-Ms Sidhu did not really say much; she sat there and sort of nodded when Stefan said, `There is something else I would like to raise.' My recollection- which is not crystal clear, frankly-and my sense of what Commander King said is, `There is a rumour circulating within Defence that there is something wrong with the timing in relation to the photographs in the papers today.' Senator FAULKNER-Did anyone-you or Ms Sidhu-think to ask Commander King who passed this information on to him from Defence? Dr Hammer-No. There really was not very much further discussion. I was snowed under; I had a great many things to do; and I just said, `Okay, that's interesting. Thank you.' Senator FAULKNER-What was the Defence Liaison Officer's-or, in this case, Commander King's-role? Dr Hammer-I must admit that, in the proceedings of this committee, I was a little intrigued at the beginning when Commander King was presented as having some sort CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1807 of official liaison role with PM&C and that his title was Defence Liaison Officer. That may be a title, for posting purposes within the Defence organisation, for Commander King's position, but certainly he is not known as the Defence Liaison Officer in PM&C. In fact, this is an arrangement whereby we rotate around the services. We have an officer of Commander King's level come in to the Defence, Intelligence and Security Branch in PM&C, and essentially it is designed as a means of showing capable, middle level officers in the defence forces how the central agency in government operates. So it is a little bit of an outreach program from PM&C. We have also been trying to establish the same thing with ASIO, incidentally. Senator FAULKNER-Was he an effective worker in PM&C? Dr Hammer-I have to be frank: the defence liaison officers-that is the way that Defence describes them, anyway; we call them the Defence secondees-are only there for a year, so they never really get up to speed in the same way that a line policy officer in PM&C would get up to speed. Also, they come from a uniformed defence forces background. I cannot comment on how that qualifies them in their own area of expertise, but they are not made as bureaucrats and they do not, broadly, operate like a bureaucrat would. So they are a special case within the branch, but a very welcome one. I enjoy having people from the defence forces in the branch. Senator FAULKNER-I do not know whether that answers my question, which was about how effective he was. Was it his habit to come and spread rumours to you? Dr Hammer-I cannot clearly recall. Senator FAULKNER-You said that this was characterised as a rumour. What we have heard from Ms Sidhu-and from Commander King, but particularly from Ms Sidhu-was that she thought that this was important enough to arrange a meeting so that this could be communicated to you at the earliest possible opportunity. You know that background. Dr Hammer-My understanding was that they were coming to brief me on Operation Slipper. Senator FAULKNER-So you did not know what the meeting was actually about? Dr Hammer-I knew that it was about Operation Slipper, but they had something else to raise. It was not communicated to me as a matter of any particular urgency, except to the extent that they dwelt on Operation Slipper matters for 10 minutes or so before raising this other matter. So they did not rush into my office and say, `Look, there's this business to do with photographs. Forget about Operation Slipper; this is important.' They gave me what I wanted on Operation Slipper and then they raised this other matter, which I did not- Senator FAULKNER-For a person who hardly remembers the meeting at all, you seem to have a very strong recollection about the status of this information being a rumour. CERTAIN MARITIME INCIDENT CMI 1808 SENATE-Select Thursday, 13 June 2002 Dr Hammer-I have had a lot of time to reflect and rack my brains on the contents of the discussion. Senator FAULKNER-But you thought it would have been better that someone should have passed it on to Jane Halton and the People Smuggling Task Force. Dr Hammer-No, I did not think that at all. Senator FAULKNER-Because you certainly did not pass it on, did you? Dr Hammer-No, because it was presented to me as a rumour from a relatively junior officer who was not, to my knowledge, involved in any way in illegal immigration and people-smuggling issues and who had not been over in the Department of Defence to discuss that matter in any formal way with anyone over there. Senator FAULKNER-But you have stressed to me-and I accept it-that you are a very busy person. I do not know how you would have time to allow such urgent briefings that are merely based on a rumour. Dr Hammer-I was expecting a briefing in relation to what Commander King had collected in Defence on Operation Slipper. Senator FAULKNER-It does not seem to add up to me. We have got Commander King and Commander Chatterton describing this as formal advice. We have got Ms Sidhu saying this is serious enough to interrupt what I accept is your very busy work schedule for this to occur. Why do all that for a rumour? Dr Hammer-I think it was their judgment that it was important to convey the information to me. They did not communicate that judgment to me. They came to brief me on Operation Slipper. That was my understanding of why they wanted a meeting with me. Senator FAULKNER-But you are aware that Ms Sidhu has told this committee that her intention was to brief you immediately about this matter because it was drawn to her attention by Commander King. That is what she should do, isn't it? You are her superior. Dr Hammer-I was not privy to the discussions that Commander King and Ms Sidhu had before they came to my office to talk to me. Senator FAULKNER-I know, but they decided that it is important enough to go and talk to you about it. Of course, you were not privy to it because King tells Sidhu and King and Sidhu decide to brief you. In fact, they try and brief you even more urgently than they do. They try to get the meeting established as quickly as possible. That was the priority-and I do not think this is a decision of Commander King. I think this is a decision of Ms Sidhu, and I think she made the right decision. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1809 Dr Hammer-They would have briefed me on issues which they felt needed my attention maybe over 50 times a week on a whole range of things. To come to my office and to brief me on an issue is not so unusual. All that has happened here is that they have selected to brief me on one particular issue out of maybe 50 other issues they may have selected to brief me on in any given week. The other point that I would make in relation to their sense of the importance of this information- Senator FAULKNER-Hang on- ACTING CHAIR-Just a moment, Senator Faulkner. Let the witness finish his answer. Go on, Dr Hammer. Dr Hammer-The other point that I would make is that Commander King and Ms Sidhu's understanding or grasp of the significance of the contents of the rumour could have been quite different from mine because their focus-and Commander King particularly having contacts with the Navy as a Defence officer-was purely on Defence matters. My branch, although it has been repeatedly cast in this committee as the Defence branch actually does more work on issues which are not Defence related than it does on Defence issues. In fact, over in that other basket was all of the post- September 11 counterterrorist and national security issues, and there were many other things over in that other basket. So it is quite possible, I would have thought, that Commander King and Ms Sidhu made a judgment about the importance of the rumour quite different to the judgment that I would have made about its importance in terms of my role, which is quite a different and larger one. Senator FAULKNER-So they might brief you on 50 issues a week? That is what you said earlier. Dr Hammer-A large number of issues. Yes, we would discuss- Senator FAULKNER-So how many times a week would Commander King and Ms Sidhu come to your office to brief you? Fifty times? Dr Hammer-It might take place in my office. It might take place in Ms Sidhu's office. It might take place in the open work area in the international division. But we were talking to and fro constantly about the issues which concerned the work of her section. I was her supervisor. Senator FAULKNER-But this is a sit down organised briefing on a specific issue in your office. How often would that happen? Dr Hammer-Every time Commander King came back from an Operation Slipper briefing, we would have some kind of meeting-sometimes in my office, sometimes in Ms Sidhu's office and sometimes, if not much was going on, I might raise it with Commander King and say, `Yes, today,' out in the open area of the division. In terms of the formality and the informality of meetings and arrangements within the international division, and Prime Minister and Cabinet more broadly, the sociology of the way that we work is highly dynamic. It is not a bureaucratised stiff type of arrangement. People are dealing with one another right across the range, from jokes CERTAIN MARITIME INCIDENT CMI 1810 SENATE-Select Thursday, 13 June 2002 and total informalities all the way through to very serious issues, sometimes in the same conversation, and sometimes going backwards and forwards. Dynamic, clever people working together do things that way. To cast one meeting as particularly more formal or rigorous than another does not gel with the way things really work in that workplace. Senator FAULKNER-Commander King said to this committee on 2 May this year about the briefing in the office: ... I advised him that a fellow Navy officer, attending the Strategic Command brief that morning, had told me the pictures in the media showing people in the water did not relate to the claims made by the Minister for Defence that unauthorised arrivals were throwing their children overboard but, in fact, related to an event the following day when those same people were being rescued by the Navy from their sinking vessel. I also said that it seemed that the captions accompanying the pictures appeared to have been removed, however I did not do so with the same gravity, noting the degree of conjecture I attributed to that information at that time. Can you confirm that Commander King presented this information to you in that way? Dr Hammer-No, I cannot. It is quite the contrary, Senator. My recollection is that the information he presented was less complete and was presented to me as a rumour. In fact, I had no knowledge of the existence of Commander Chatterton until, I believe, he appeared before this committee. I had never been given any information about the source of Commander King's knowledge other than that he said to me in my office on that day that there was a rumour circulating in Defence to the effect that there was a difficulty with the timing of the photographs. He might have said a bit more than that about the photographs themselves but, if he did, I do not recall it. Senator FAULKNER-But you were surprised when you heard what he said, weren't you? Dr Hammer-I did not know what to make of it. It was not within the context of anything that I was working on. I just thought: why am I being told this? That was essentially my reaction. Senator FAULKNER-Were you surprised when you heard what he had to say? Dr Hammer-On 11 October in my office? Senator FAULKNER-Yes. Dr Hammer-No. I just did not know what to make of it. I was neither surprised nor unsurprised. Senator FAULKNER-The only reason I asked you that is because Ms Sidhu said that, in the morning, you reacted with surprise when you were told about the photos. Was she wrong too? Dr Hammer-Different people have different subjective impressions of what another person's reaction is. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1811 Senator FAULKNER-They do. Dr Hammer-She may have thought I reacted with surprise. I might have been reacting with surprise that I was being told something; I might have been wondering: why am I being told this? Senator FAULKNER-It seems that Commander King believes that you understood that the information was sensitive. If you cannot confirm Ms Sidhu's recollection that you reacted with surprise, can you confirm whether you understood or acknowledged that the information was sensitive? Dr Hammer-I do not really recall having felt that the information was sensitive. All I recall is-and this is a psychological mode-trying to understand the relevance of the information to me in my role, and trying to understand what I ought to do next about it, not calculating its sensitivity. I could not have judged its sensitivity at the time, I do not think, Senator. Senator MASON-Dr Hammer, do you remember the word `rumour' being used by Commander King in this context? Did he use the word `rumour'? Dr Hammer-Yes, I do. Senator FAULKNER-There seem to be a lot of things that you do not recall at the meeting, but you do recall that. Dr Hammer-It was a two- to three-minute exchange. Senator FAULKNER-Do you recall acknowledging that the information was sensitive? That is what Commander King says. Dr Hammer-No, I do not. Senator FAULKNER-But you do recall him describing it as a rumour? Dr Hammer-Yes, I do. Senator FAULKNER-Do you think it is unusual that Ms Sidhu thinks this is a serious enough matter to bring to your attention in the way that she does, that Commander King believes that you thought it was a sensitive issue but that, basically, you have little or no reaction to it and nothing happens? Dr Hammer-Neither Commander King nor Ms Sidhu said at any stage, `Brendon, you really need to pay attention to this. This seems to us to be very important.' That was never put to me. Senator FAULKNER-Would Commander King have ever done that in his life? CERTAIN MARITIME INCIDENT CMI 1812 SENATE-Select Thursday, 13 June 2002 Dr Hammer-The other point that I would make-as I mentioned before-is that maybe 90 per cent of my capacity at that time was not even on issues of defence; it was on issues to do with September 11 and organising material to do with that. Senator FAULKNER-We have had Commander King before the committee. You make the point, and probably rightly, that Defence is hierarchical. Did Commander King, at any stage with any issue, say, `I think you, in your role, need to take this particularly seriously'? Did he reinforce any of the briefings that he gave you with that sort of additional claim or information? Dr Hammer-Commander King did not give me briefings that often. He gave me briefings on Operation Relex, and he had been asked to do that; otherwise, he was a member of the team, working largely with Ms Sidhu and others on producing briefings for the secretary or the Prime Minister on various issues. At times, yes, when we were talking about a draft briefing note, we may have had a bit of a to and fro-more likely with Ms Sidhu than with Commander King because she was his supervisor-about whether or not it was important to make a particular point in a briefing note. I think people in the working environment were quite free to make that type of- Senator FAULKNER-Commander King did not do it on this occasion-I accept that. Did he do it on any occasion? Dr Hammer-There were not very many occasions like this one for him to have done it. Senator FAULKNER-Is that another way of saying: `No, he never did it'? Dr Hammer-Yes. Senator FAULKNER-Right. He never did it. That is what I was trying to get to. Thank you. Did you give any consideration at all to the significance of this information in the context of, on the one hand, the publicity that we were speaking about canvassing a few moments ago and, on the other hand, the fact that this was occurring during the period of a federal election campaign? Dr Hammer-As I said before, the information was presented to me as a rumour. It was coming through a very unorthodox and, I would have thought on the subject matter of people-smuggling and illegal immigration, potentially unreliable conduit. There was a whole task force within the Department of Prime Minister and Cabinet focusing on these matters- Senator FAULKNER-You do not pass it on to them. ACTING CHAIR-Let him finish his answers, Senator Faulkner. Dr Hammer-with senior Defence representation on it. The major balance of my judgment at that time was that, if this is significant, Jane will be briefed on it by Al CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1813 Titheridge, the Head Strategic Command in Defence, or someone else from Defence, whose role it was formally to keep PM&C briefed on developments in relation to Defence's involvement in Operation Relex. Senator FAULKNER-This hardly seems to fit with someone who has very little recollection at all of this discussion. Dr Hammer-I am not talking about the recollection of the specific facts of the discussion. I am recalling the way that I assimilated the information and made judgments about what to do with it. That is something that I remember very well. Specific facts are not my forte. Senator FAULKNER-That may well be the case. We will find out about that a little later on. But given that we know that these photographs were being misrepresented in the media-I would say that they were being wrongly used by the government, but certainly they were misrepresented in the media-and this information was provided to you by two subordinate officers in the Department of the Prime Minister and Cabinet, and they thought they were doing it in a formal way, whether you did or did not: do you accept, now, responsibility for taking no action in response to the information that was provided to you in the briefing? Dr Hammer-At that time, I had no context within which to judge the significance of the information. It was presented to me as a rumour-which I do not characterise as formal advice, in anybody's language. I do stand by my judgment that, at that time, I had insufficient reason to bother anybody else with that piece of information. Senator FAULKNER-So you passed this information on to no-one? Dr Hammer-I do not remember raising it with anyone subsequently. Senator FAULKNER-I accept that you properly say there is a task force dealing with these issues, and Ms Halton is the chair of that task force. You are right; that of course is the case. What about passing it on to them? If you were not going to do it yourself, what about suggesting that your subordinate officers do it? Dr Hammer-I did not think it was worth bothering them with. It was a rumour about something where I had very little context. Subsequently, sure, there has been a brouhaha about whether or not the photographs were valid or whether they had been tampered with or what have you, but at that time there was no suggestion that this was a mainstream issue. Ms Halton and her people were up to their ears in a lot of serious policy work. They were going to be briefed on anything that mattered in relation to Operation Relex properly and formally by Defence. I just assumed that if what I had been told had any legs, it would come to their attention. I did not feel that I was in a position to judge the reliability of the information, and I felt that it would perhaps even be a disservice to propagate what I believed to be a rumour. Senator FAULKNER-That assumption does not stand the test of time, does it? It is wrong, isn't it? CERTAIN MARITIME INCIDENT CMI 1814 SENATE-Select Thursday, 13 June 2002 Dr Hammer-I still do not know what Commander King was actually told. I was told of a rumour about the timing of some photographs. That is what I was told. I felt that this was not within my area of responsibility and that if this was important information and turned out to be an important issue, the Defence organisation would brief, in the normal way, up their chain of command and across into the Department of the Prime Minister and Cabinet into Jane Halton's task force. I did not need to make that judgment, because it was not within my area of responsibility. Senator BRANDIS-And of course you had slightly more important things on your mind at the time, I suppose, like the global war on terrorism and Australia's national security. Dr Hammer-Yes, that is correct, Senator Brandis. I did have areas which were very much within my responsibility. I was highly accountable on a range of things; not on this issue, because it was not within my area of responsibility, and I was fatigued at the time and highly focused on other matters. CHAIR-But you can walk and chew gum at the same time, can't you, Dr Hammer? Dr Hammer-I could describe to the committee what the full range of responsibilities within the Defence Intelligence and Security Branch are, and you might get an idea of the context. Senator BRANDIS-It might help me, Dr Hammer, if you would tell us just how important you understood your role to be at the time in developing policy concerning the international war on terrorism and Australia's national security. Senator FAULKNER-If I asked a question like that, Mr Chairman, it would be ruled out of order because of a point of order from Senator Brandis about the terms of reference, but I think it is perfectly reasonable to have that information before the committee, so I will not take the technical point of order. I will not follow Senator Brandis's precedent. Senator BRANDIS-Can we have the answer, Dr Hammer? CHAIR-Before we go to that answer-I have got no objection to the question being put-the direction of the questioning was that, in essence, if I can express it in my naive layman's terms, you were too busy to pay attention to this issue, Dr Hammer. You had other matters of state weighing on your mind. I do not dispute that you had other matters of state- Senator FAULKNER-Just following orders. CHAIR-but you are a senior officer in the key central department of government with a range of range of responsibilities, and my question- Senator BRANDIS-Of which this was not one. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1815 CHAIR-That then begs the question: why the Hotel Kurrajong? Senator FAULKNER-We have not even got to the Kurrajong. We are a month before the Hotel Kurrajong. Senator BRANDIS-Can we come back to my question? I understand the question is not being objected to. Senator FAULKNER-It is not. Senator BRANDIS-It sounds to me, Dr Hammer, from your evidence, that you are at pains to tell us that you had more important things on your mind. I think it might assist us all-the committee and people listening to your evidence-if you were to explain exactly what was your centrality in developing policy at this time concerning Australia's participation in the global war against terrorism, a few weeks after the September 11 attacks, and Australia's national security. CHAIR-As I said, I have got no objection to this question- Senator BRANDIS-Let him answer it then! CHAIR-Yes, but I actually had a question which I do not think has been answered. This is the `wrap yourself in the flag' defence-that `I was too busy about higher duties to pay attention to the- Senator BRANDIS-Senator Cook, the question has now been put twice. Senator Faulkner has expressly said he does not object to it and you have said that you are not going to rule it out, so could he be given the opportunity to answer it before we move to the next question, please? CHAIR-You may have noticed that I did actually have a question in the sequence, and I would not mind an answer to that question. My question is simply this, Dr Hammer: you do have, because of your important position in PM&C-or what was your important position; you have now changed departments-a range of quite weighty responsibilities. That is admitted, and we are certainly going to hear about them in a moment. But it seems to me, though, that you have a responsibility for all and not just some of those issues, and the reason why you occupied the position you did is because of your ability to attend to all of them and not just some of them. That is true, isn't it? Dr Hammer-It is not strictly correct in terms of areas of responsibility. Whilst I did have responsibility broadly for issues within the Defence portfolio, there were a number of instances where-and I am simply an assistant secretary; that is not a particularly senior person in the greater scheme of things-issues were considered to be of such significance and importance to the government that they would be, if you like, taken away from me and given to another group. So whilst I had responsibility for defence and security issues, some of these issues would be taken away. For example, there was a task force set up on East Timor and, in this case, there was a task force set up on illegal immigration and people-smuggling. That essentially took this CERTAIN MARITIME INCIDENT CMI 1816 SENATE-Select Thursday, 13 June 2002 out of my area of responsibility. So that was an important factor in my judgement. Also, I chose not to propagate what I believed to be a rumour. If people wish to cast me as having been negligent in having not passed on information, my way of characterising it would be that I did not pass on a rumour, or what I understood to be a rumour. CHAIR-All right, I will mark the spot and when my turn comes for questions I will pursue this matter further. Senator BRANDIS-Can I have my question answered now? I have put it twice; I do not think I need to put it a third time, do I, Dr Hammer? Dr Hammer-No. The branch essentially had responsibility for briefing the Prime Minister and the secretary of the department across all issues, with the exception of those I have just described, within the Defence portfolio. So that includes the Defence organisation, ADF, DSTO and Veterans' Affairs. We also had all of the intelligence agencies, those within Defence and outside Defence, and, in a sense, all domestic and international security matters. So we had, for example, a role in security for the Olympics and CHOGM-although we were not central on that-the police forces and areas of the Attorney-General's Department, including the Protective Security Coordination Centre in that department. I even chaired a group called the Commonwealth Counter-Disaster Task Force. I had an involvement in emergency management and response to natural disasters. So our task was to inform and keep briefed both the secretary and the Prime Minister across that full range of issues. We also had another specific role, and that was to develop agendas and briefing for the secretary and the Prime Minister in relation to meetings of the Secretaries Committee on National Security, which met roughly once a month, and also for the National Security Committee of Cabinet, which met on a number of occasions following the September 11 terrorist attacks. That is, if you like, the line set of responsibilities. When I mentioned security, in relation to post-September 11 we specifically had the international relations dimension of international security. Within our bailiwick was understanding and keeping abreast of how the United States and other countries were reacting to what had happened. There was also a major government exercise going on under fairly intense pressure to ensure that this country was safe against what at that time still looked an intensely uncertain security environment. No-one knew what would happen next. We had letters with anthrax floating around the United States. Everyone had been terribly shocked by all of this. The Attorney-General's Department, in particular, was working day and night to develop a series of rolling submissions to the Secretaries Committee on National Security and the National Security Committee of Cabinet with proposals for how to strengthen security here, there and right across the borders of Australia. From a policy development side, rather than from a briefing side, I played quite a strong role in that process. In fact, I had a considerable number of conversations, for example, over the telephone with the Secretary of the Attorney-General's Department about the way the CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1817 policy development process was evolving. It was a very intense period in that respect, Senator Brandis. Senator FAULKNER-Caretaker conventions were applying at this time, so there were some limitations on your role, I assume. Dr Hammer-Not really on mine. The government, the bureaucracy, continued to develop ideas. The actual decision making and so on at the higher end into the political dimension was in abeyance largely. Proceedings suspended from 12.33 p.m. to 1.34 p.m. CERTAIN MARITIME INCIDENT CMI 1818 SENATE-Select Thursday, 13 June 2002 CHAIR-We will continue with questions. Senator FAULKNER-Dr Hammer, were you saying before the break that you did not consider this information to be of such significance that it was worth passing on to anyone else at the departmental level? I am referring to the information that was provided to you by Ms Sidhu and Commander King. Dr Hammer-I understood that it was a rumour. To give you a direct answer, yes, I judged that, given the status of the information, it was not worth passing on to anyone. Senator FAULKNER-You must have quite a bit of information come across your desk from time to time, not all of which is substantiated. Wouldn't that be the case? Dr Hammer-Yes, a vast amount of information. Senator FAULKNER-Do you pass any of that on? Dr Hammer-It would depend. If it were a piece of information which seemed important in relation to an area for which I had responsibility, let's say some information in relation to how a defence project was evolving or what have you, and if it came in the form of a rumour-and I recall hearing some rumours in relation to defence projects-then I might or might not have decided to follow up, depending on the context and the type of information. There was always a massive information flow through my office and much of that information, including information which was not cast as rumour but was, in fact, likely to be correct, I judged not to be of any major significance. I did not action information of that type either. Senator FAULKNER-But even around 7 or 8 November, you did not think it advisable or warranted to pass any of the information that you heard in the Sidhu- King briefing on to any of your associates or superiors in PM&C? Dr Hammer-I had virtually forgotten that that 11 October meeting had taken place. I had put the information to one side. Nobody had ever raised it with me subsequently. I had no visibility that there was any issue in relation to what had been conveyed to me. To be honest with you, by that time I had virtually forgotten that a meeting had taken place and that that information had been conveyed to me. Senator FAULKNER-For something that you had forgotten by that stage, you are remembering some of the detail now. Dr Hammer-One of the reasons is that I had a meeting with Ms Sidhu and Commander King subsequently, on 11 March, for the purpose of trying to get an idea of what we each had known. Senator FAULKNER-Did you feel pressured to arrange that meeting with Ms Sidhu and Commander King? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1819 Dr Hammer-This is now the 11 March meeting? Senator FAULKNER-Yes. Dr Hammer-No, I did not in any usual way, although my supervisor, Mr Michael Potts, the head of the International Division, had, possibly sometime in late February, suggested to me that it might be a good idea to get together with Commander King and Ms Sidhu to talk about events in relation to information which Ms Sidhu had then passed on to Catherine Wildermuth. I had been trying to fit in a meeting with Ms Sidhu and Commander King to talk about that. It was a little difficult because it required having Commander King attend. He was no longer working in PM&C and had to travel all the way over here to have such a meeting. I was away early in March for CHOGM. I was in Brisbane. I came back in the week of 4 March. On Tuesday, 12 March, I understand from my desk calendar, that there was to be a meeting of the National Security Committee of Cabinet, which I mentioned earlier, which involved a heavy workload for me briefing the Prime Minister on issues for that meeting and so on and so forth. Fitting the meeting in-getting the meeting-was striking me as difficult, so I did not feel any pressure to hold the meeting other than that, if I did not push a little to get the meeting, I was concerned the meeting might not take place. I was also concerned that my boss, Michael Potts, had suggested such a meeting. I think he suggested it to me twice. If the person I am working for asks me to do something, I like to do it. That was the only sense in which I felt any pressure. I did not actually think that the meeting which had taken place in my office, which at that time in March I barely recalled, was of any great significance. Senator FAULKNER-When you say that you were trying to fit it in, did you contact Ms Sidhu or Commander King about it? Dr Hammer-Yes. My recollection is having spoken to Ms Sidhu more than once about seeing whether we could get together-she, Commander King and I. She recalls, I gather from her testimony, one occasion, which was on the Friday, but my recollection is that I might have asked her more than once. I am not 100 per cent clear on that; I might have intended to ask her earlier and not followed through. I must say that the meeting itself, apart from the fact that Mr Potts had asked me to get together and share recollections, did not seem to me to be a particularly or unusually important thing. Senator FAULKNER-It struck you as being straightforward? Dr Hammer-I knew that there was a lot of activity going on in the department in relation to, let's call it, the maritime incident. I knew that Ms Sidhu had subsequently provided some information to Ms Wildermuth and that there were issues of interest to Mr Potts, as head of the division, about how the division had been engaged in the issues which were associated with the task force. My understanding was that he just wanted me to get the two principal officers together to share recollections. A part of that, I thought a rather minor part, was the short discussion which had taken place in my office on 11 October. CERTAIN MARITIME INCIDENT CMI 1820 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-Did you ask him whether it was appropriate to have such a meeting? Dr Hammer-I may have. I have the distinct impression that he had said to me that it was okay for people to share their recollections on such matters. But he really said very little about it. He just said, `Look, I just think it would be a good idea if you guys got together and shared your recollections.' He did not really disclose why. Senator FAULKNER-I was asking whether you asked him about whether it was appropriate or not. Dr Hammer-I may have. I am not 100 per cent clear on it. I think I may have asked him and been assured that, yeah, it was reasonable for people to share recollections-jog one another's memories, as it were-in relation to things which may be of interest to Senate committees and what have you. Senator FAULKNER-I am surprised at that, because in your letter to Mr Moore- Wilton of 6 May you say categorically: When asked whether such a meeting was appropriate, Mr Potts advised me that it was normal for people to talk to one another to refresh their recollections. Dr Hammer-That is okay. That is consistent with what I have said. I just haven't- Senator FAULKNER-So you do recall being asked by- Dr Hammer-I had the sense-that is what I was conveying-that I had asked whether or not it was appropriate to have such a meeting and then I had been assured that- Senator FAULKNER-But why does he chase you up so many times about it? Did you ask him why he was insistent upon such a thing occurring? Dr Hammer-I do not know that he was insistent, but I recall him asking me twice. I am not sure. You see the point is that his involvement with the task force- and Harinder's involvement in illegal immigration and people-smuggling-was greater than mine so the context within which he was operating may have been wider than I had any knowledge of. The way that it worked in the international division in this respect is that there was what you might call a one-three arrangement: the division head and Ms Sidhu had some involvement in illegal immigration and people- smuggling issues but I did not, even though Ms Sidhu was in my branch. At one point, I think another branch may have been involved in the issue so I was never in direct contact with the day-to-day of this type of thing. Senator FAULKNER-You can't say why Mr Potts seemed so keen for this to go ahead? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1821 Dr Hammer-I cannot say, and I cannot say that he seemed any more keen for it to go ahead than he seemed keen when he gave an instruction to one of his branch heads for any other thing to go ahead. When a supervisor at that level who is that busy asks me to do something, I do not tend to question it. I go ahead and do what I am asked. Senator FAULKNER-Have you been involved in any other attempts to prepare for Senate committees? Dr Hammer-No. I have been involved in the compilation of material for appearances by others but not for appearances by me. Senator FAULKNER-So you are not aware of that sort of activity taking place prior to a Senate committee hearing? Dr Hammer-No. I had understood that people colloquially would share recollections to assist one another to recall things, but I cannot think of any specific instance where I was made aware of that. Senator FAULKNER-You understood it, but you had no first-hand experience of it? Dr Hammer-No, I had none. Senator FAULKNER-None at all? Dr Hammer-None at all. Senator FAULKNER-You have appeared before Senate committees before, haven't you? Dr Hammer-No. I have never answered questions before a Senate committee before. I think I may have- Senator FAULKNER-You have been ready to give evidence if called? Dr Hammer-I have been ready in an estimates context to answer questions, yes. Senator FAULKNER-But you have never been called to the table to do so? Dr Hammer-No. Senator FAULKNER-So you asked Ms Sidhu to organise the meeting? Dr Hammer-I did. Senator FAULKNER-And you did that on Friday afternoon, 8 March? CERTAIN MARITIME INCIDENT CMI 1822 SENATE-Select Thursday, 13 June 2002 Dr Hammer-My recollection of the logistics of setting the meeting up are not very strong, but I have no reason to doubt that that was the timing. Senator FAULKNER-Do you think that that was the first time you raised this issue with Ms Sidhu? Dr Hammer-No, I think I might have raised it earlier, but I could not be specific about whether it was before or after I went to Brisbane for a few days for the purpose of CHOGM security. All I recall is a degree of frustration that I had been asked to get together with Ms Sidhu and Commander King as it seemed to me that it might be difficult to have that happen because of timing considerations. Senator FAULKNER-It seems to have become a very urgent matter by 8 March; is that right? Dr Hammer-No, not urgent in any sense other than I wanted to get a little bit executive on it and have the meeting take place. It is one of those things where you know that, if you keep putting it off, you may never get to it so I thought, `Let's do this thing. I've been asked to do it; I'll do it'. Senator FAULKNER-Why didn't you want the meeting inside your office at the department? Dr Hammer-It could easily have been convened inside my office, but I spend an awful lot of time in that office. I think I mentioned before that nearly everything that I work on has to go into a class B container overnight, as it is highly classified. I do not take classified material or discuss classified matters outside secure facilities. This was not something where that was a problem. I felt that it would be pleasant and easier on me if I could have Ms Sidhu and Commander King come to my house, give them a cup of coffee and fit it into my schedule that way. I did have in my diary that there was a National Security Committee meeting on Tuesday, 12 March. Preparation within my branch for those meetings is very intense in the couple of days leading up to them because we have to prepare a big briefing pack for the Prime Minister, briefing him on a range of issues coming before the meeting, and sometimes the submissions would come in late. The days immediately before a NSC meeting were usually completely blocked out with attempting to finalise the briefing pack, so it does not surprise me that I might have thought: `Gee, we can knock this one off on the weekend. I don't have to go into the office. We can do it at my place. At the same time, we can have a little bit of a social occasion. It will be relaxing.' I did have members of my branch, as a group, over to my place for social functions roughly once a year-maybe a little more often-just as a friendly social thing, and I felt that this type of activity was consistent with that sort of approach. I like to try to demonstrate to the extent that I can my humanity as a manager and what have you, so that was part of that broad pattern of conceptualisation that I had that this was something that could be done that way. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1823 Senator FAULKNER-So no-one contacted you prior to your contacting Ms Sidhu on the afternoon of 8 March suggesting that you get on with the job in relation to sorting out- Dr Hammer-No, and I must say that on no occasion did Mr Potts say, `Brendon, why don't you have that meeting,' or `Get on with it.' But I was conscious that he had asked, so I wanted to proceed. Senator FAULKNER-That is fair enough. But you did not have any discussions with anyone about that? Dr Hammer-No. Senator FAULKNER-Either ministerial staff or anyone in the Public Service? Dr Hammer-No. Senator FAULKNER-So it was your initiative entirely to ask Ms Sidhu to organise that meeting on 8 March? Dr Hammer-Yes, entirely. Senator FAULKNER-What did you say to her when you contacted her on that afternoon? Dr Hammer-On 8 March? Senator FAULKNER-Yes. Dr Hammer-I cannot remember. I do not even specifically remember putting the proposition to her on that date that we have a meeting. I am at the limits of my capacity to remember things. I must be frank here: this is a relatively minor thing, I would have thought. It amazes me that it has blown out to the amount of attention that has been paid to it here. I do not question that at this stage, but at the time- Senator FAULKNER-You have never pondered on what might have happened if you had passed on to the People Smuggling Task Force on 11 October the information that had come to you via Commander Chatterton and Commander King? Dr Hammer-I assumed that, if there was anything in what had been put to me over a couple of minutes of conversation as a rumour circulating in Defence, it would have gone to the task force through the proper Defence liaison channels and something then would have happened. I had no reason to believe that it was anything other than a rumour until right down- Senator FAULKNER-Regardless of that, going back to your comment, you have not ever considered that, in the context that we are speaking of here-that is, during the period of a federal election campaign-if you had passed on that information CERTAIN MARITIME INCIDENT CMI 1824 SENATE-Select Thursday, 13 June 2002 provided to you by Ms Sidhu and Commander King, a misrepresentation that was allowed to continue right through and until after polling day may not have occurred? Don't you feel some level of responsibility? Dr Hammer-No, because all I understood right up until virtually polling day, or whenever it was, was that I had been provided with a rumour, and I had no reason to believe that it was anything other than a rumour. Senator FAULKNER-But you have said before that you act on other rumours- if it was a rumour. King and Chatterton say that it is a formal briefing. Dr Hammer-I had never heard of Commander Chatterton until he appeared before this committee. Senator FAULKNER-Let us accept for a moment that it is a rumour. You pass on other rumours, don't you? Dr Hammer-No, I act on information that comes to me, rumour or otherwise, when it is within my direct area of responsibility and when it is something which I judge to be significant. There are many pieces of information, rumours or otherwise, which I do not judge to be significant and which I dismiss. Senator FAULKNER-But you did not even take a decision to say to either of your more junior officers, Commander King or Ms Sidhu, that they should pass that information on to the more relevant parts of the department, such as the People Smuggling Task Force or perhaps the Social Policy Division-given that they were servicing the task force-or Ms Halton, Ms Bryant and all those others who were involved in the PST. It would have taken about 10 seconds to ask them to do that. Dr Hammer-I certainly do not recall asking them to do that. Senator FAULKNER-I am absolutely certain you did not do it. The issue is whether you should have done it and, given that you did not do it, why you did not do it. Dr Hammer-I did not do it because there were very senior Defence people in Ms Halton's task force who were responsible on a daily basis for briefing that task force on salient matters to do with Operation Relex and so on, and I had every reason to believe that anything that had any credibility or that was important for Defence's activities or what was going on in Defence would be passed through that appropriate, high-level, regular channel to Ms Halton. Commander King was a junior officer within my branch and he had heard a rumour. That was the way I perceived the information. Senator FAULKNER-But you could have delegated him or Ms Sidhu to deal with it, couldn't you? Dr Hammer-I did not see any need to. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1825 Senator FAULKNER-You are a delegator from way back, from what I have heard today. I am not critical of that; that is fair enough. You do a lot of delegation, do you not? Dr Hammer-Yes, but at the same time I had to be very conscious of the workload within my branch and stay focused on my areas of responsibility. I did not feel that this was within my area of responsibility and I did not think the information was necessarily reliable or important. Senator FAULKNER-You were incredibly busy, you tell us, on Tuesday, 12 March. There was a National Security Committee meeting on Tuesday, 12 March; is that right? Dr Hammer-That is what my desk calendar says, yes. Senator FAULKNER-And you were very busy in the lead-up to that? Dr Hammer-Quite probably, yes. Senator FAULKNER-But you still had time to go to the Hotel Kurrajong with King and Sidhu. Dr Hammer-Wait a second. I got confused between the two meetings. Senator FAULKNER-So there was no NSC meeting on on the- Dr Hammer-Yes, there was. That was in March. Senator FAULKNER-Yes. Dr Hammer-I thought we were discussing- Senator FAULKNER-We were. Dr Hammer-why I did not pass on the information which I had received at the 11 October meeting. Senator FAULKNER-We were, but now I am talking about something else. Dr Hammer-I must have missed that. Senator FAULKNER-We were talking about that; now we are talking about what occurred at the Hotel Kurrajong. You were saying that you were busy and that is why you talked to Ms Sidhu on the evening of Friday, 8 March. You had a lot on your plate. You were worried about going to CHOGM- Dr Hammer-No, CHOGM had taken place. CERTAIN MARITIME INCIDENT CMI 1826 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-You had the National Security Committee meeting on the Tuesday. Dr Hammer-It was just a matter of fitting that meeting in. Senator FAULKNER-If you were so busy, how could you possibly give priority to Ms Sidhu's, and particularly Commander King's, evidence before a Senate committee? It does not ring true. Dr Hammer-I had been asked to do it by my boss, Mr Michael Potts, and when I am asked by a supervisor to do things, I try to do them. The other point I would like to make is that it was not at all clear to me at that time that there would be appearances by any of us before a Senate committee. In fact, I had a very strong impression, which was obviously a misjudgment in hindsight, that my role in this whole matter was a very minor one. As I pointed out in my opening remarks, we are talking about a sum total of 13 to 15 minutes worth of meeting-a three-minute exchange in my office on 11 October and maybe 10 to 15 minutes of substance on this at the Kurrajong subsequently, and that 15 minutes only arose because my supervisor had asked that that meeting take place. Senator FAULKNER-Yes, but you are telling me, Dr Hammer, that you were terribly busy during this period and you were worried about fitting all your responsibilities in. You had a National Security Committee meeting on Tuesday. You told me how much effort goes into briefing the Prime Minister for these things. I accept that. I know that you have a responsible job and a heavy workload. What I do not understand is why the evening before the National Security Committee you made it a priority to talk to King about either his evidence to a Senate committee or submissions to a Department of the Prime Minister and Cabinet submission to this committee. Dr Hammer-Well, Senator- Senator FAULKNER-It does not ring true. It just does not make sense. Senator BRANDIS-Let him finish! What is the answer? Dr Hammer-I think the proposition was that we could have a meeting on the Sunday, which would have been fine. Then the default was: `No, I cannot do it. Is it possible to do it on the Monday?' My reaction was probably to groan and say, `Okay, let us do it.' I think the whole thing went for about 20 minutes. You do have to prioritise and pattern out the way that you work, and I may well have thought that around that time during the day I could do with a bit of a break so let us do it that way. Senator FAULKNER-Why then have the meeting at home on the weekend? Why have the meeting away from the office at all? Dr Hammer-I think I have already answered that question about the meeting. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1827 Senator FAULKNER-Not satisfactorily, with respect. Senator BRANDIS-Perhaps not to you, Senator Faulkner. Dr Hammer-I feel it is a satisfactory answer. Senator FAULKNER-Not to me, nor to any reasonable person, I would have thought- Senator BRANDIS-Senator Faulkner, you are just being political about this. Senator FAULKNER-and I am a reasonable person. What was the idea of having the meeting on the weekend at home away from the office, if this was not a priority for you? Dr Hammer-It did have priority because my supervisor asked me to have it. I was in a situation where I thought if I did not actually pin it down and do it, it was just going to keep drifting. I also thought it would be quite pleasant to have Commander King and Ms Sidhu to my home on the weekend. I thought it was an opportunity to mix a bit of work and pleasure. When it did not work out, and the counterproposal was made to do it on the Monday, I thought, `Okay, we will do it on the Monday.' Senator FAULKNER-Commander King thought the proposed locations for these meetings were unusual. Dr Hammer-If he did, he never put it to me. If he had said, `Look, I would like to have any meeting that you wish to have in your office,' I would have said that was fine. Senator FAULKNER-Here we get to the point that has been made on many occasions not just in relation to this evidence but right through this hearing. You know how the hierarchy works in Defence. You have pointed out to me on a number of occasions today what a comparatively junior officer Commander King is compared to you. There is no doubt about the power relationship or the seniority here. Dr Hammer-I would not characterise myself as a particularly senior officer. Senator FAULKNER-You are a long way up the pecking order from him, aren't you? Dr Hammer-No, two levels. Senator FAULKNER-Yes, and you know what that hierarchy means, don't you? Dr Hammer-I am not sure I do, frankly. I do not come from a Defence culture; I have never been a soldier or an officer in the defence forces. In my career in the public sector I have tended to work in very flat, non-hierarchical teams where people focus on the policy work and so on and not on the chain of command. We had a very CERTAIN MARITIME INCIDENT CMI 1828 SENATE-Select Thursday, 13 June 2002 free-flowing environment in the International Division in the Prime Minister's department. That is the way modern workplaces tend to operate. Senator FAULKNER-So let us get this clear: you do not think it is unusual for you to ask Ms Sidhu on a Friday afternoon to contact Commander King for a meeting, about evidence before a Senate committee, to take place some time over the subsequent weekend, at some time over the subsequent two days? Dr Hammer-I think empirically it is unusual because it was not something that we did-that is the first time it would have happened-but from a personal point of view I do not think it is that unusual. Senator FAULKNER-Do you think it is unusual to have a meeting either at your home or at the Hotel Kurrajong and not at the offices of the Department of the Prime Minister and Cabinet, where both you and Ms Sidhu worked and where Commander King did work for the period of time that was relevant to the matters you were discussing? Dr Hammer-I think empirically it is far less unusual to have a meeting of some kind at the Hotel Kurrajong-it is right over the road, that was a rather lovely Canberra autumn day and I thought it was an occasion to get out of the office. Once again, the material we were going to talk about was not classified. I repeat again: we did not know that this committee would call us. It was not an attempt to practice or rehearse anything for the purpose of a submission or appearance before a committee; it was simply a meeting for the purpose of sharing our recollections. Senator BRANDIS-And, of course, Dr Hammer, a meeting can mean many things and can have different degrees of formality. As I understand your evidence and that of the other officers, this was a meeting at the lower level of formality almost in the nature of an informal conversation. Dr Hammer-Yes, very much so. Senator FAULKNER-But it was a meeting, was it? Dr Hammer-Yes, I think you should characterise it as a meeting. CHAIR-And its purpose was to go over the evidence. Dr Hammer-No, it was to share recollections. The idea of evidence, in a sense, had not really emerged at that stage. CHAIR-How foolish of me; it was `to share recollections'. I am sorry. It took 13 minutes. Dr Hammer-No. Let us leave that 13 minutes aside. We probably sat down over coffee for 20 to 25 minutes. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1829 CHAIR-There were only 9½ minutes missing from the Watergate tapes, and that led to a resignation of a president. I do not know why the emphasis on the amount of time taken is particularly significant, that is all I am saying. Dr Hammer-I do not think it is that significant. I just think it is a little unusual- CHAIR-You introduced it, that is all. Senator BRANDIS-Presumably there was some small talk and you had to order your coffee, and various other inconsequential matters were discussed. You have passed this 13 minutes down out of the entire occasion, I take it. Dr Hammer-The 13 minutes comes from a three-minute conversation about the rumour on 11 October, plus roughly 10 to 15 minutes of substantive conversation at the Kurrajong. I just noted at the outset that the amount of time spent on that 13 minutes, with all due respect, in this committee and by a great many people seems quite remarkable. That was where the 13 minutes came from. Senator JACINTA COLLINS-Do you think it the amount of time that has been spent on the Houston telephone conversation with the minister is remarkable? That was probably less than 13 minutes. Senator FAULKNER-Are you aware that Commander King, in evidence before this committee on 2 May this year, when asked about his concerns about the meeting, said: The concerns were, firstly, that it was slightly unusual to have a meeting about a sensitive issue in an area outside a public office, largely for the reason that other people may construe that in a particular way. Do you have any response to that? Dr Hammer-Firstly, if Commander King had ever, at any time, expressed to me concerns about either having the meeting or about having it at the Hotel Kurrajong, I would have taken that on board. I would not have had the meeting at the Hotel Kurrajong. I wanted it to be a relaxed, pleasant affair. I did not have on my mind the idea of making anyone feel at all uncomfortable. If Commander King had said, `Brendon, I really don't want to meet and discuss this stuff', I would almost certainly have gone to Mr Potts and said, `Stefan King doesn't want to have a meeting on this. Is it okay with you if we do not have a meeting?' Senator FAULKNER-It was not a relaxed and pleasant affair, and that goes to the second part of what Commander King said in response to that question. He says: The second concern was just a sense that you often felt overwhelmed by Dr Hammer's own version of events because he is a very influential man and in an influential position and he is paid to be right and sometimes it is hard to be heard. They are his words. It was not relaxed and pleasant at all for him. CERTAIN MARITIME INCIDENT CMI 1830 SENATE-Select Thursday, 13 June 2002 Dr Hammer-My impression of the meeting was that it was relaxed and relatively pleasant. I think Ms Sidhu, when listening to her testimony, felt that, except for a moment of discomfort that she experienced because she felt Commander King was experiencing a moment of discomfort, it was a reasonably pleasant meeting. Senator FAULKNER-Let us not talk about her recollections; let us talk about yours. Dr Hammer-Mine are that the whole thing was fine and done quite comfortably. Senator FAULKNER-You were not able to pick up at all that Commander King was uncomfortable? Dr Hammer-No, Senator. You have just conveyed Commander King's characterisation of my persona. Senator FAULKNER-I have read his evidence, yes. Dr Hammer-Often it is difficult for people to know how they project themselves. Senator BRANDIS-All Senator Faulkner is really putting to you, I suspect, is that you were thought to be something of an overbearing personality-which is, I must say, a bit rich coming from Senator Faulkner. Senator FAULKNER-I admit I am overbearing, and I am not critical if Dr Hammer is overbearing. None of us around this table should worry about overbearing characters. Senator MASON-But always reasonable! Senator FAULKNER-Having established that we are all overbearing, let us get to the nitty-gritty. Senator MASON-I do not think that is a matter of admission at all-only about you. Senator FAULKNER-Were you able to pick up at all whether Commander King was uncomfortable at the Hotel Kurrajong? Dr Hammer-The answer is, no, I do not recall Commander King being uncomfortable. Senator FAULKNER-Were you able to pick up that moment of discomfort, as you describe it-and I think that is a fair description of what Ms Sidhu said to us earlier; you have described that in a fair way to us-at the meeting? Dr Hammer-No. My memory does not operate in such a way that I could recall the toing-and-froing in the conversations in that meeting. But my recollection is not of CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1831 having felt that Commander King was in any way uncomfortable at that meeting or that Ms Sidhu was uncomfortable at that meeting. Possibly, that does make me insensitive. Senator FAULKNER-As I say, I am not going to criticise people who are insensitive at all. Senator JACINTA COLLINS-Shall we do that right now? Senator MASON-You would not want to! Senator FAULKNER-Unlike others, I admit it. I am insensitive. Let us get on with it. Hold the front page: `Senator admits a level of insensitivity'! Equally, I was not at the Hotel Kurrajong having meetings with witnesses before this committee. Dr Hammer-I would submit that I in no way conceived or made any attempt at any stage to influence the testimony of any witness coming before this committee. I did not do that. I had no intention of doing that. Nobody instructed me to attempt anything of that kind. I did not make such an attempt. Senator FAULKNER-Ms Sidhu has said that you further pressed Commander King for recollections of the 11 October meeting and that you appeared concerned about King's narration. This does not ring a bell? Dr Hammer-When I went into the 11 March meeting I had the impression, because of the form of my own recollections, that most of what we would be talking about was Commander King's communication with Ms Sidhu and the issue of-for want of a better phrase-tearoom gossip. I had not actually expected to discover a lot about a meeting which I could barely recall which had taken place in my office on 11 October. Commander King's recall of that was quite elaborate relative to mine. I had barely remembered that that meeting on 11 October had taken place. I can remember being a little surprised, I think, in relation maybe to what he had said about that meeting, but I do not, frankly, recall the detail of it. I just do not. Senator FAULKNER-Do you recall effectively mooting a question that might be asked by a senator at a committee hearing like this? Dr Hammer-I have racked my brains about that and I do not actually recall having put a question along the lines of, `Pretend I am a senator asking you a question,' or what have you. I may have asked some questions like, `What do you recall was said in the meeting on 11 October?' once that meeting was raised, but I do not recall the exact questions I asked. I do not, in a sense, recall anything particularly significant-maybe some differences over detail, but I do not recall what those details were. This may sound unsatisfactory to you- Senator FAULKNER-It does. CERTAIN MARITIME INCIDENT CMI 1832 SENATE-Select Thursday, 13 June 2002 Dr Hammer-but I do not go to great levels of detail in the way that I recall things. I tend to recall the sense or the substance of something rather than the detail of it. Senator BRANDIS-Is there anything particularly sinister, Dr Hammer, in a conversation which is designed to assist people's recollection of a past event putting a proposition in the form of a question to determine the nature of somebody's recollection? Dr Hammer-I must say that does not strike me as particularly sinister. CHAIR-That is a question for us to judge, isn't it? Senator BRANDIS-Not really, because Senator Faulkner's questions on this topic to the witness are really designed to suggest that there was something untoward in his approach or that his approach was suggestive of an untoward motive. CHAIR-But you are putting the conceptual proposition to the witness, seeking affirmation from the witness, as to- Senator BRANDIS-I am just inviting him to comment on the proposition I put to him. CHAIR-whether the ordinary person in the street would regard this as something sinister. Senator BRANDIS-No. I am asking whether he does and I am asking him to comment on the proposition I put to him. Dr Hammer-Perhaps there is a way of solving both. What I attempted to do in that meeting, as I had been asked, in a sense was to share recollections. The first part of that was to attempt to draw forth recollections, and I think I probably may have tried a few different ways to do that. As I mentioned earlier, I have not had any real experience in appearing before Senate committees. I may have said, `This issue may or may not come to the attention of the Senate through one means or another.' I may have said, `Let's ask one another some questions about our recollection,' or what have you. That is all that I can offer you on this. Senator FAULKNER-In the absence of you being able to recall these things, is the committee going to be in any better position other than to depend on what Commander King and Ms Sidhu can tell us-if your recollection is not so solid of these events? Dr Hammer-The bit of the meeting that I remember-because it intrigued me a little bit-was the mismatch between Commander King's assertion that he had been briefed directly in Defence and Ms Sidhu's surprise in saying, `But that was presented to us as a rumour and, in fact, it was presented to me as a conversation that you had overheard over tea or what have you.' I do not recall having had that put to me, CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1833 incidentally, in my meeting on 11 October. I do not recall Stefan King saying, `This was a conversation I overheard other people having while they were having coffee.' He just said, `There is a rumour going around Defence.' So this was a little intriguing to me as a spectator, frankly, and I do recall- Senator FAULKNER-You are not a spectator; you are the convenor of the meeting. Dr Hammer-Yes, but they were talking about transactions between the two of them, not involving me. I do recall Commander King saying, `I did that to protect my source.' That did intrigue me and that is the sort of detail- Senator FAULKNER-So you do remember that bit. Dr Hammer-That is a significant detail to me. Senator FAULKNER-Do you remember whether there was any discussion of a departmental submission from the Department of the Prime Minister and Cabinet to this committee? Was that discussed? Dr Hammer-No. Senator FAULKNER-You do not remember that? Dr Hammer-No; I recall that it was not discussed. I had a kind of peripheral role and knowledge of what was going on in relation to these issues because I have never had any line responsibility for them. This meeting took place because Mr Potts asked me to get Harinder Sidhu and Commander King together to talk about their recollections of how this information, which eventually was given to Catherine Wildermuth, had come through the division. Senator FAULKNER-So you are saying to this committee that there was not discussion about a possible submission from the Department of the Prime Minister and Cabinet to this committee at your meeting at the Hotel Kurrajong? Dr Hammer-It may have come up but nobody ever said, `What are we going to say in the submission?' or `What are we going to do here or do there?' The meeting was about: `What do we recall as having happened? The Senate may have an interest in this.' Senator FAULKNER-Firstly you said that there was not; now you are saying that it may have come up. Are you saying to us that the only thing you can remember with clarity about this meeting is the issue of the discrepancy in the description of Commander King's information-that is, whether it was rumour or more formal information? CERTAIN MARITIME INCIDENT CMI 1834 SENATE-Select Thursday, 13 June 2002 Dr Hammer-Yes. I heard what Ms Sidhu and Commander King said before this committee, and I do not think I can add to that. I recall that we did have a fair bit of small talk. Senator FAULKNER-But you cannot recall whether you gave him a bit of a practice run by asking him a few questions? Dr Hammer-I certainly had no intention of giving him a practice run. Senator FAULKNER-No intention, but did you do it? Dr Hammer-Not to my recollection, no. I may have asked a question. Senator FAULKNER-But that was not a practice run? Dr Hammer-Certainly not. Senator FAULKNER-What was it? Dr Hammer-It was an attempt to elicit his recollections. It went something like: `Stefan, what are your recollections of what you had to say to Harinder on such and such?' Senator BRANDIS-Dr Hammer, I will remind you of something that Ms Sidhu said this morning. She was asked by Senator Faulkner what her expectations of the meeting at the Hotel Kurrajong were. She said, `I was expecting to come away with a clear idea of what had transpired at the three-way meeting on 11 October.' Was that also your expectation? Dr Hammer-Strictly speaking, no. I had expected to come away with a better idea of what had taken place at that meeting and also to hear about the transactions between Commander King and Ms Sidhu which had taken place around that meeting in my office. I had thought that Mr Potts's objective in asking for the meeting to take place was to get a sense of the involvement of all of us, bilaterally or as a trio, in this matter. Senator BRANDIS-So you had two purposes. One of your purposes was to clarify your recollection of the three-way meeting. Dr Hammer-Yes. Senator BRANDIS-The other purpose was to inform yourself about matters of which you were at that time unaware-that is, what had gone on between King and Sidhu. Is that right? Dr Hammer-Yes, to get an idea of that, as well-which, together, would make up the totality of what my expectations were. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1835 Senator FAULKNER-Senator Brandis quotes Ms Sidhu. In her letter to Mr Moore-Wilton dated 6 May, Ms Sidhu said that: Dr Hammer was trying to coax CMDR King to be more forthcoming about his recollections of the 11 October meeting. Can you confirm that? Dr Hammer-To coax him. Senator BRANDIS-To coax him to be more forthcoming about his recollections? Senator FAULKNER-I quoted it directly. I will say it again: ... trying to coax CMDR King to be more forthcoming about his recollections of the 11 October meeting. I am asking Dr Hammer whether he accepts that Ms Sidhu's version of events is an accurate description of what happened. Dr Hammer-I certainly would have been encouraging Commander King and Ms Sidhu to recall, yes. Senator FAULKNER-Did you want to see Commander King get a bit of practise about what he might say before a committee like this? Dr Hammer-Certainly not, no. Senator FAULKNER-But you did want him to provide some more detail about what might be said. Dr Hammer-I wanted both Commander King and Ms Sidhu to help me remember what had happened in my office. That was part of it. It was about remembering, not about rehearsing. Senator FAULKNER-So if this information that had come to you from Commander King and Ms Sidhu on 11 October had been more formal in its nature, in your mind-not a rumour, but a more formal advice or briefing-what would you have done in those circumstances, if anything? Dr Hammer-It is a hypothetical question. Senator FAULKNER-It is. Dr Hammer-If Commander King had presented me with a letter from someone in Defence to the effect that there was a problem within Defence about the timing of the photographs, certainly I would have had to action that, and I would have. If he had said that he had received formal advice in another form and that he had been asked to pass that information on to PM&C, I would have asked him to pass that on to the task force. That is the judgment I believe I would have made, but it is hypothetical. CERTAIN MARITIME INCIDENT CMI 1836 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-At the additional Senate estimates on 18 February this year, Mr Moore-Wilton used the term `categorically' and he also took offence at the conclusion that I had reached. He said to me: ... none of the information available within the Department of Defence which casts doubt on the photographs or the basic report was released outside the Department of Defence. It was not released to the Department of the Prime Minister and Cabinet. Then he talked a little about Mr Jordana's request for sit reps. He went on: And this constant effort to consistently say that the department was aware that the photographs were not of 7 October is not true. You can at least say that this information was in your hands on 11 October, can you not? Dr Hammer-No, I had a report of a rumour within Defence. Senator FAULKNER-We can now also say that Ms Sidhu knew about this on 11 October. Dr Hammer-Yes, she believed that she had heard something. I gather it had been overheard by somebody else who was having coffee in the periphery of a meeting of people who were not involved with people-smuggling and so forth. This was very low grade, low quality information. Senator FAULKNER-Not to mention Group Captain Walker's briefing; not to mention the chronology and the footnote and so forth, as well. When this issue did blow up-and you have said to me that you were surprised it did, or at least you were surprised that your role in it became an issue-what did you do then? You became aware that Commander King had concerns about the possibility that his evidence before this committee was being suborned. That is right, is it not? Dr Hammer-Yes, that was very late in the piece. Senator FAULKNER-Can you just say when that occurred? Dr Hammer-I think that was right before his appearance on 2 May. I was asked to come to a meeting at Prime Minister and Cabinet by Ms Barbara Belcher. It was on 30 April. Senator FAULKNER-On 30 April, Ms Belcher asked you to come to a meeting? Dr Hammer-Yes, that is right. Senator FAULKNER-That was in her office? Dr Hammer-Yes. Senator FAULKNER-Who was there? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1837 Dr Hammer-It was only her and me for a period and then Mr Potts came as well. Senator FAULKNER-What were you told by Ms Belcher at that meeting? Dr Hammer-She asked me to sit down and she asked me if I would like a glass of water, which made me start to worry. Then she showed me- Senator FAULKNER-What if she had asked you to have a double whisky? Dr Hammer-I do not think Ms Belcher keeps whisky! Anyway, she showed me a minute from Rear Admiral Gates-I think everyone has seen that minute-and suggested that I read it. I read it and I said, `There is no-one named in this minute. What it this about?' She said, `I understand that this minute refers to you and to Commander King.' I was absolutely stunned; that is not too strong a way of putting it. I was amazed by that revelation. Senator FAULKNER-What happened then? Dr Hammer-I told Ms Belcher that I was shocked, that I could not believe that such an allegation was being made, that I had never done anything or said anything to try to suborn Commander King's evidence and that I thought the minute was absolutely remarkable. I think I sat there and had a sip of water after that. Senator FAULKNER-What was the outcome of that meeting? Dr Hammer-The outcome essentially was that Ms Belcher, who is a very pleasant person, sort of talked around the issue a little bit and said, `There are some things that you might want to think about, one of which is perhaps sending a letter to Commander King, who is due to appear before the committee on 2 May, making it clear to him that you did not have and never have had-if he thinks you have had- any intention of trying to influence him.' Senator FAULKNER-And you did that? Dr Hammer-I did so. Senator FAULKNER-Were there any other outcomes? Dr Hammer-Not that I can recall immediately, no. Senator FAULKNER-Were there any other outcomes beyond the immediate sense? Senator BRANDIS-Apart from the fact that you are here today! Senator FAULKNER-Did you talk to anyone else about it? Did you raise the issue with anyone? CERTAIN MARITIME INCIDENT CMI 1838 SENATE-Select Thursday, 13 June 2002 Dr Hammer-I am just trying to recall. I may have asked my new supervisor for some time to compose the letter to Commander King, because I was in a new work environment. I had moved to the Department of Foreign Affairs and Trade. I do not recall having a substantial conversation about it with anyone else. Senator FAULKNER-Mr Potts, for example, is no longer your immediate superior? Dr Hammer-No. I must admit that at that point you become conscious that all sorts of things can happen to you if you have a conversation with somebody. I, frankly, have been afraid to talk to a wide range of people ever since this whole thing blew up, because I just do not know what is going to happen next in relation to it. Senator FAULKNER-So you did not talk to anyone at that time? Dr Hammer-No. Senator FAULKNER-And you have not talked to Mr Moore-Wilton about it? Dr Hammer-No. Senator FAULKNER-You did write the letter to Commander King? Dr Hammer-Yes. Senator FAULKNER-Did you show a draft of that letter to anyone? Dr Hammer-No, I did not. Senator FAULKNER-You just sent it directly to Commander King? Dr Hammer-I did, yes. Senator FAULKNER-And you sent a copy to- Dr Hammer-The Secretary of the Department of the Prime Minister and Cabinet. Senator FAULKNER-Did you get any response to that letter? Dr Hammer-No, I did not. There was a response in a sense when I came up here on 2 May. In the witness room Commander King sort of said that he had been amazed at having received the letter. Aside from that, I guess there was the overarching response of the Secretary of the Department of the Prime Minister and Cabinet to conduct an inquiry into the operations of his own department in relation to this matter. But, apart from that, no. Senator BRANDIS-Just to make sure that I understand your evidence perfectly well, Dr Hammer, the writing of the letter was Barbara Belcher's idea? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1839 Dr Hammer-It was something she suggested. She certainly did not say, `You really ought to do this,' or anything. She said, `It mightn't be a bad idea; you should think about it and see if you would like to.' Senator BRANDIS-But the idea came from her, not from you? Dr Hammer-Yes, it did. CHAIR-The decision to proceed with it came from you? Dr Hammer-Correct. Senator BRANDIS-Do you think, in retrospect, that it was an error of judgment to write the letter? Dr Hammer-No, I do not at all. I was quite amazed at the minute that I had been shown. I was not allowed to keep a copy of that minute. It did not name me or Commander King, but I understood that it was out there. I still have no idea what the basis for that minute is but, after thinking about what Ms Belcher had proposed, I felt that it was important to communicate to Commander King that he should be as truthful and complete as possible in his testimony before this committee, to tell him that that was what I planned to do and, in a sense, to go on the record with my position, which is that I have never had any intention to act, and never have acted, to suborn a witness. Senator BRANDIS-Dr Hammer, to have written the letter was a very honest thing for you to have done. In the second paragraph you say: I am writing to let you know that I have never in any way purposefully sought to influence you to do anything other than tell the whole truth in appearing before the Senate Select Committee. In view of what has been said in this room in the last few weeks, you can understand how people who want to play politics with this issue can try to turn that around into an innuendo against you that this is some sort of guilty denial, can't you? That is what Senator Faulkner has been trying to do. You can see now that you really exposed yourself to that sort of innuendo by writing those words. CHAIR-That is your conclusion. Senator BRANDIS-Do you understand what I am putting to you? Dr Hammer-I do. Senator FAULKNER-And of course you would reject the assertion. Dr Hammer-I actually find the way that my behaviour in this has played out really quite distressing and disappointing, frankly. CHAIR-I think Senator Brandis has never played politics. CERTAIN MARITIME INCIDENT CMI 1840 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-Did anyone raise with you whether the question about Commander King's evidence to this committee would actually be raised with the committee? This was all going on within the hallowed halls of the Department of Prime Minister and Cabinet. You were aware of it. Dr Hammer-Yes. Senator FAULKNER-Ms Belcher was aware of it, Admiral Gates was aware of it, the Minister for Defence was aware of it, Mr Moore-Wilton was aware of it, Uncle Tom Cobley was aware of it-but not this committee. Did you seek at any stage any information as to these matters being drawn to the attention of this committee? Dr Hammer-No, I did not. But I do recall Ms Belcher saying at one stage that the minute that she had shown me from Rear Admiral Gates was out there and that there was a probability that the matter would come before the committee. Senator FAULKNER-When you say `out there', do you mean in the bureaucracy? Dr Hammer-Yes. I do not know what its distribution was. Senator FAULKNER-Fair enough. I think I can assure you-and I am sure my colleagues would agree-that it did not come to the attention of this committee until Commander King actually gave evidence. That is my recollection. CHAIR-That is my recollection. Senator BRANDIS-Dr Hammer, I suppose it gave you some comfort when you heard Commander King's evidence, when Senator Faulkner asked him if he felt that you were trying to suborn his evidence, that Commander King answered unequivocally, `No.' Dr Hammer-Yes, I was comforted by that. I read the testimony of 2 May very closely, as you can imagine, and I counted a number of times when Commander King said that he did not feel that an attempt had been made to adjust his evidence. I think he said that maybe four or five times in answers to different types of questions, and on at least three occasions he said that the evidence that he was giving to the committee was the whole truth as he recalled it. Senator BRANDIS-There were three parties to this meeting-you, Sidhu and King-and the evidence of the three of you on the point is unanimous and unequivocal. Dr Hammer-Yes, that is the case. If I can be permitted to make a comment, I am mystified by the minute from Rear Admiral Gates. I do not know what it is about and I do not know how this group of people in Defence could have generated such a minute. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1841 Senator FAULKNER-We cannot help you on that, because the Minister for Defence is blocking the attendance of Rear Admiral Gates at this committee-by the way, that is just another person he is trying to block coming before the committee, as well as a departmental liaison officer this afternoon. You said you saw Commander King-I assume in the witness room for this committee-when you were both due to give evidence that day. Is that right? Dr Hammer-Yes, that is correct. It was just a momentary contact. We shook hands and said hello. Senator FAULKNER-The discussion you had with him was as fleeting as you have said to the committee before, was it? Dr Hammer-Yes. Senator FAULKNER-Is that all that took place? Dr Hammer-Yes. Senator FAULKNER-I do not think it is worth debating the different views about what Commander King did or did not say. I think the record stands for itself. CHAIR-There is a privileges committee matter, as well. Senator FAULKNER-Yes, I know. What King said is that he had not been influenced. He, of course-properly, I think-said that he could not answer for what others had tried to do or had in their mind and that some of the other witnesses, like Dr Hammer, could answer in relation to themselves. I think that is a reasonable point to make in the circumstances. So you do not have any other contact until Mr Moore- Wilton asks you for, effectively, a submission or contribution to his inquiry? Dr Hammer-Yes, that is right. I received that letter, if my recollection serves me correctly, on 2 May. Senator FAULKNER-You set about responding to that, of course, as you are obligated to do? Dr Hammer-I did. Senator FAULKNER-In relation to that, when had you concluded your response to Mr Moore-Wilton? Dr Hammer-It was 6 May. Senator FAULKNER-Did you show the draft to anyone? Dr Hammer-No, I did not. CERTAIN MARITIME INCIDENT CMI 1842 SENATE-Select Thursday, 13 June 2002 Senator FAULKNER-You did not discuss this matter with anyone? Dr Hammer-I did not. At that point I had gone into complete hibernation with respect to discussing matters of substance on this with anybody-and I include Ms Sidhu, Commander King, Mr Potts, Ms Belcher and everyone else. Senator FAULKNER-Fair enough. So you do not discuss that, or show that to anyone, until that is provided to Mr Moore-Wilton? Dr Hammer-That is right. Senator FAULKNER-What happens in relation to these matters after that is provided to Mr Moore-Wilton? Dr Hammer-Nothing, really, of substance that I can think of. Waiting to appear before the committee- Senator FAULKNER-Did you discuss your appearance before this committee with anyone? Dr Hammer-Only in a conversational way, frankly, with my parents, and that sort of thing, but that is it. Senator FAULKNER-Apart from personal family contacts-I am not the slightest bit interested in that; that is absolutely appropriate-I was wondering whether you discussed it with any other officers or anyone involved with this committee at all? Dr Hammer-No. In the circumstances there is obviously a bit of prurience on the part of some people, which I have resisted. I said that I would rather not talk about it. Senator FAULKNER-What is the outcome of the inquiry, beyond the report that has been provided to the Prime Minister? Any that you know of? Dr Hammer-I do not know. Nothing that I know of or I have been informed of, although I do understand that I am now an officer in the Department of Foreign Affairs and Trade and that, in a sense, administrative responsibility for me now lies with the secretary to that department not the secretary to the Department of the Prime Minister and Cabinet. Senator FAULKNER-Beyond the publication of that report, and that report has been made available to this committee, you have had no discussion with anyone about the outcomes? Dr Hammer-No, I have not. I have had some invitations from people to social occasions and so on and so forth. I have actually told them if I thought they were in any way of interest to this committee that I do not want to have any contact with them until the matter is settled. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1843 Senator FAULKNER-What I am asking you is: as far as you understand, is it settled or not in relation to Mr Moore-Wilton's report? Dr Hammer-I do not know. I note that he concludes in his report that he does not believe that, at the time of the production of the report, anything untoward had taken place and that any disciplinary action would be required. Senator FAULKNER-No, I have read his report and I have commented on the inappropriateness of Mr Moore-Wilton yet again investigating activities in his own department. But beyond that, I am merely trying to establish whether you had had any feedback beyond the knowledge of that report being made public-and I think you are saying no. Dr Hammer-No. Senator FAULKNER-I think you have had a substantial opportunity, but have you actually reflected on the status of this information that was provided to you that you considered to have the status of a rumour in terms of the internal processes of the department and provided any of your superiors with any thoughts about any possible improved procedures as a result of what has occurred? Dr Hammer-I have not in so many words, but I may have commented about the surprising character of the Defence input into the PM&C task force in the light of the unfolding of things. There is a big question I think about the extent to which Defence was prepared to report out into the task force any doubts or difficulties or what have you that it was having internally in relation to the facts of the matter. Senator FAULKNER-Have you given any consideration to the fact that this information that we have been speaking about that you heard about on 11 October is effectively precisely the same information that came to Ms Halton's attention on 7 November? It is from the same source, but Ms Halton of course acts very differently once it is brought to her attention. Have you thought at all about comparing the way Ms Halton responded-she said she was so shocked and appalled when she heard this information-and the way you reacted when you heard this same information nearly a month earlier? Dr Hammer-I have not really reflected on it except that I was surprised. Ms Sidhu apparently mentioned to Catherine Wildermuth, who was the representative of the task force let us say for the purposes of discussion, that we had heard some time earlier a rumour that there might be something problematic with photographs that there was then this incredibly sort of rapid, if you like, magnification of that piece of information through Jane Halton and co. But, as I said before, I had been tracking along on the assumption that formal Defence liaison at a senior level with Jane Halton's task force would have been keeping them abreast of the issues. I was not actually paying attention to whether Defence liaison had fed this information into the task force or not. I had no knowledge of that either. Senator FAULKNER-Maybe you misunderstand me. I understand that is your view, but-when this does get passed on on 7 November via Ms Wildermuth and Ms CERTAIN MARITIME INCIDENT CMI 1844 SENATE-Select Thursday, 13 June 2002 Bryant it then goes to Ms Halton and then to Mr Moore-Wilton via the infamous telephone message, and we know what Prime Minister and Mr Moore-Wilton think about having a message left on Mr Moore-Wilton's voicemail-isn't there, from your point of view, a comparison that is pretty irksome? When this rumour-same rumour, same source-described then as tearoom gossip, is passed on on 7 November, at least it ends up on Mr Moore-Wilton's message machine; in your case, it does not. Dr Hammer-What must have happened, I can only surmise, is that the task force had thought that there was nothing wrong with these photographs, that everything was square and what have you, and-I assume, and I have picked this up around the place-there was then an attempt made at some quite late stage to verify what everyone had assumed was the case. It was when that interrogation or search was taking place for documentary material or for anything that demonstrated the advice that the photographs were genuine that people started to suddenly focus more and more on bits and pieces around the place until finally the first thing they hit was the tearoom gossip element. It became very significant at that point, but at the time that I heard it I do not think it had any significance. Senator FAULKNER-With all due respect, Defence did tell PM&C; PM&C just chose to ignore the information that came to them. But, importantly, they also say that the information flow from Chatterton to King to Ms Sidhu to you was also an important part of the information flow. There is paper, there is a chronology with a footnote, there is Group Captain Walker's operational report and so on. That is considered by at least some in Defence also as a clear indication from a very early date about the inaccuracy of these claims. Dr Hammer-I still do not know what status Commander Chatterton has or had in all of this. Ms Sidhu and I had no idea that there was a Commander Chatterton who had face-to-face briefed Commander King on this until Commander Chatterton testified to this committee. That is my understanding. Senator FAULKNER-What contact, if any, have you had with staffers in the Prime Minister's office? Dr Hammer-You will have to give me a bit more context than that. I had a lot of contact over three years in PM&C. Senator FAULKNER-In relation to the matters that are included in the terms of reference of this committee. Dr Hammer-No contact. Senator FAULKNER-None at all? Dr Hammer-No. It was not within my responsibility, so people were not ringing me up about it or what have you. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1845 Senator FAULKNER-So you can say to us that you have never discussed matters relating to the `children overboard' incident in the broad with any staff members from the Prime Minister's office? Dr Hammer-Not that I can recall, and certainly nothing substantive. Senator JACINTA COLLINS-Dr Hammer, you said in your statement to Mr Moore-Wilton that you had no further contact in relation to what you understood to be the rumour until November, when Ms Sidhu told Ms Wildermuth. What contact did you have on the matter at that point? Dr Hammer-Contact with the secretary? Senator JACINTA COLLINS-With whomever. Dr Hammer-With anybody? None really, because the information travelled from Ms Sidhu to Ms Wildermuth through that conduit. In a sense, I would imagine I was a bit of a cul-de-sac off that. Senator JACINTA COLLINS-You say in your statement: ... no-one ever raised the matter with me again until well after the time in early November 2001 when Ms Sidhu told Ms Wildermuth. So I am asking, further to your statement, who raised this matter with you at that stage? Dr Hammer-I do not think anyone did. Senator JACINTA COLLINS-Then your statement does not make sense. Dr Hammer-Are you asking whether somebody raised the matter with me at the time of Ms Sidhu's passing the information to Ms Wildermuth or at some stage after that-and, if so, at what stage after that? Senator JACINTA COLLINS-At that time or some stage thereafter. Dr Hammer-Okay, not at that time, and some considerable stage after that. I guess it must have been when Mr Potts suggested that I have the meeting with Commander King and Ms Sidhu. Senator JACINTA COLLINS-I am a bit confused about that meeting too, because you suggest that Mr Potts suggested you have this meeting, yet it was not until you reported back from that meeting that you say Mr Potts then became aware that you had had the October meeting. Dr Hammer-I had never raised the October meeting, to my recollection, with Mr Potts- CERTAIN MARITIME INCIDENT CMI 1846 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-Why was Mr Potts suggesting it? Dr Hammer-He suggested that we get together to share our recollections- Senator JACINTA COLLINS-Recollections of what, though? Dr Hammer-about matters within the branch to do with the maritime incident. What maters?-I guess the tearoom gossip thing which had gone from Ms Sidhu to Ms Wildermuth. Senator JACINTA COLLINS-Yes, but the basis of that tearoom gossip was the three-way meeting in October. Dr Hammer-That was not the basis; the basis for that gossip was that Commander King had conveyed that information to Ms Sidhu and then subsequently that day there was a meeting in my office. Substantively, the information had travelled from Commander King to Ms Sidhu and from Ms Sidhu to, ultimately, Catherine Wildermuth. Senator JACINTA COLLINS-If Mr Potts had not understood that there had been a meeting in your office in October, why would he have suggested you meet with the other two to share your recollections? Dr Hammer-I do not know. Senator JACINTA COLLINS-It simply does not make sense that he was not aware of the meeting in October. Dr Hammer-He may have learnt of the meeting from Ms Sidhu or Commander King; that is possible-I do not know. Senator JACINTA COLLINS-But you say in your statement that, to your understanding, when you reported back to him after that meeting, it was the first time he became aware that the meeting had occurred in October. Dr Hammer-But he did not say, `Brendon, please get together with Ms Sidhu and Commander King and talk about the meeting that took place in your office.' He said, `I think it would be a good idea if you got together with Commander King and Ms Sidhu to discuss issues of information flow-just share recollections of what happened,' because it was clear at that time that Commander King and Ms Sidhu had played a role and they were within my branch. That was my take on it. Mr Potts did not elaborate on why he wanted us to get together; I just assumed that he wanted to get a clearer picture of what had happened. But he did not raise with me the 11 October meeting in my office-certainly not. Senator JACINTA COLLINS-But he had some understanding you had some role in it. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1847 Dr Hammer-At the time that he asked me to get Ms Sidhu and Commander King together, I had absolutely no reason to believe that he did know that there had been a meeting in my office on 11 October. If he did know, he did not tell me that; he just said, `Please get together with Commander King and Ms Sidhu and have a think about it.' He may have mentioned something about dates, that Jenny Bryant or the task force were interested in the date at which Commander King had passed the rumour to Ms Sidhu. Dredging my memory, I think he may have mentioned something like that to me. Senator FAULKNER-Given that you organised this meeting at the Hotel Kurrajong with literally just a couple of days notice and tried to organise it a little earlier on the weekend and you seem to have such a scanty recollection of what occurred at the meeting, I hope we can be confident in relation to all those matters that were discussed on the Tuesday at the National Security Committee, that they were absolutely uppermost in your mind and you have a much better recollection of those matters. Dr Hammer-At the National Security Committee meeting of cabinet? Senator FAULKNER-Yes, the National Security Committee that met on Tuesday the 11th, for which you said you were overwhelmed with work. Dr Hammer-The 12th of March. The answer is: I cannot remember what the agenda was, let alone what was discussed. I did so many of those meetings, it is hard to know. Senator FAULKNER-It is hard to understand why these extraordinary attempts were made on a Friday afternoon to have a meeting that weekend-if possible, on the Sunday afternoon-about Commander King's recollection of the events of 11 October 2001 and his possible evidence to a Senate committee and, when he was unavailable to have that meeting at your home, to have a meeting in the Hotel Kurrajong on the Monday afternoon. Dr Hammer-I think I have already explained in my testimony the dynamics of that, but I do not accept that I called for the meeting with any particular urgency or that I considered it to be a particularly serious or formal sort of meeting. Senator FAULKNER-Why give it such priority? Dr Hammer-I thought I testified earlier that it was a matter of doing something that I had been asked to do and it was drifting. I recall possibly asking Ms Sidhu at an earlier stage, maybe before I went away to Brisbane for the CHOGM security related activities that I was engaged in, about setting up a meeting with Commander King to refresh our recollections. It is one of those things that is perhaps a bit like cleaning your shoes-if you just keep letting it go, it never happens, so at some point you have to say, `Let's do this; let's do it.' Senator FAULKNER-You drew an analogy between your knowledge of the `children overboard' incident and your knowledge of the World Cup. Your latest CERTAIN MARITIME INCIDENT CMI 1848 SENATE-Select Thursday, 13 June 2002 analogy is that the meeting with Commander King is a bit like cleaning shoes. I do not think they are good analogies at all. This was front and centre in the minds of very many people, including, I would have thought, senior bureaucrats, senior officers of the Department of the Prime Minister and Cabinet, right through from the period of 7 October 2001 to the end of the election campaign, when key events occur, particularly on 11 October and then subsequently on 7 and 8 November before the election on 10 November. Further, there was the establishment of this committee and possible submissions by the Department of the Prime Minister and Cabinet and preparation for the Senate estimates in February. Honestly, it just beggars belief. It is not like cleaning shoes at all. Senator BRANDIS-That is your view, Senator Faulkner. Senator FAULKNER-It is not like cleaning shoes, is it? Senator BRANDIS-Dr Hammer has been a transparently honest witness about this. CHAIR-Order! We will debate between ourselves later. We have a witness here. Let us question the witness. Senator FAULKNER-I make the point that the analogy about cleaning shoes is nonsense. Senator BRANDIS-Senator Faulkner has been making a speech, and that is not appropriate. Senator FAULKNER-I think analogy is a very important form of argument anyway- CHAIR-Order! Let us get on with questioning the witness. If we do not have any questions for the witness, let us- Senator BRANDIS-Senator Faulkner obviously does not have any more questions for the witness; otherwise, he would not be engaged in a diatribe. CHAIR-Thank you for your assistance. Do you have any further questions, Senator Faulkner? Senator FAULKNER-If I ask even one more question, I will miss my plane. I would like to ask more questions, but I am going to give my plane flight priority. CHAIR-I do not have the fortune of being able to do that, so I am stuck here. That is to your advantage and to my detriment, and I will live with it. Does that mean that you would like this witness to be stood aside and called at a later time? Senator FAULKNER-No. Other committee members will complete their questioning today. As I think everyone appreciates, it is extremely difficult to get CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1849 flights today. I have managed to get one and I am going to take it, or you will have the pleasure of my company for another day, which I think would be- Senator BRANDIS-Go! Senator FAULKNER-Yes. I think it is in everyone's interests, including my own, that I leave. CHAIR-Enjoy your 30-minute flight to Sydney. I will put up with my seven-hour flight to Perth later. Senator JACINTA COLLINS-Dr Hammer, I have a question that remains from the discussion about your letter to Commander King: why did you cc it to the secretary? Dr Hammer-It was actually suggested to me that, if I was to write a letter, it might be worth cc'ing it to the secretary. Ms Belcher suggested that to me. Senator JACINTA COLLINS-It is perhaps to her that Senator Brandis might address his questions in relation to whether it was a judicious thing to do. Another possible question to her might be whether the impact of a letter that had been cc'ed to the secretary might be taken as far more significant than a personal note from yourself. In fact, one of the inconsistencies you might care to comment on about that letter was that it was written as a personal letter in the sense that it was not on letterhead or addressed in a formal way and yet it was cc'ed to the departmental secretary. Dr Hammer-The explanation for that is very straightforward. I was working on a new computer in a new office in the Department of Foreign Affairs and Trade and I did not know how to get into the departmental letterhead template. So the choice as to whether there would be letterhead on it or not was obviated by the problem that I would have had in trying to find the letterhead. It was that simple. I did not see that the issue of the letterhead was significant. Senator JACINTA COLLINS-The significant difference is whether it is taken as a personal note or whether it is taken as a formal communication from someone in a departmental capacity. Dr Hammer-In a sense. In my capacity as a member of the Department of Foreign Affairs and Trade it seemed peculiar to me in some ways, but I did not have access to a letterhead and I did not give it hardly any thought. I felt I had to produce this letter and I was anxious to do so. I had something to say to Commander King and I went ahead and wrote it. Senator JACINTA COLLINS-In retrospect, would you have done it again that way? Dr Hammer-I think I would have, yes. CERTAIN MARITIME INCIDENT CMI 1850 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-I also want to go back to your discussion at the Kurrajong- Dr Hammer-Could I add to that-in retrospect I would have done it again. The reason is that in the situation I was in-in Barbara Belcher's office and being confronted with the minute from Rear Admiral Gates and further verbal information that suggested that I had done something improper in relation to Commander King's testimony-it would not be in my nature for me to sit on my hands having had all that put to me. I felt that it was important to come forth to Commander King and say, `Look, mate, if you have been telling people something or you are concerned that there is an issue here, this is my serious view on it and this is my view on how you should proceed.' As it happened, Commander King was completely stunned too, apparently, that this minute had been generated by Rear Admiral Gates. Senator JACINTA COLLINS-I agree with you. We still have the completely unsatisfactory situation in understanding what has occurred between Commander King's experience with you and the outcome of that minute. We know that Mr Moore- Wilton did not address that issue-perhaps a Senate privileges process will. Until we get to the bottom of what was the basis of that minute, you are left hanging, so to speak. CHAIR-I am not sure that that is an appropriate phrase. Dr Hammer-Hanging in one sense but, in the sense that Ms Sidhu, Commander King and I have all consistently testified that no attempt was made to interfere with Commander King's testimony before this committee, I do not feel that I am left hanging. I rather wonder whether the rear admiral has not been left hanging, frankly. Senator BRANDIS-The evidence is the evidence and it is unequivocally and unanimously in support of what you have said, Dr Hammer. CHAIR-That is a conclusion that you have drawn, Senator Brandis. It is also unequivocal that Commander King regards it as an awkward occasion and he ended it by his own volition quickly for fear of it becoming more than what it appeared to be. We will debate these matters later. Senator JACINTA COLLINS-The evidence by Commander King was that such matters did not influence him, not that matters did not occur. Senator BRANDIS-The evidence also was that he was satisfied that there was no attempt to influence him. Senator JACINTA COLLINS-When we get to the bottom of the Gates minute then we might have a more comprehensive explanation of the material before us. Dr Hammer-Okay. If all three people who were present at the Hotel Kurrajong are testifying, under oath, that no attempt was made to suborn any witness, I would have thought that matter was getting pretty close to conclusion. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1851 Senator JACINTA COLLINS-Given that there is also evidence before the committee in the form of the Gates minute- Dr Hammer-It does not name anyone. Senator JACINTA COLLINS-and there has been no explanation as to the basis of that minute, that is the context in which I would suggest to you the matter is still hanging. Senator BRANDIS-That is not this man's fault. Senator JACINTA COLLINS-I have already covered that earlier. I made that point earlier. Senator BRANDIS-We are in heated agreement on that point. Let us move on. Dr Hammer-I think the senator suggested that I was left hanging. That was what I commented on, not that the matter was not left hanging. I do agree entirely that the matter was left hanging. Senator BRANDIS-Everybody who is a witness to the events supports you. CHAIR-That is a matter for judgment. Senator JACINTA COLLINS-Going back to the events where you were not sensitive to Commander King being uncomfortable, and given what we have heard this morning from Ms Sidhu about what transpired in that discussion, can you explain from your recollections why you did not continue to pursue getting more specific information from Commander King? Dr Hammer-I am not sure; I guess he was not forthcoming. Someone not being forthcoming does not necessarily equate to them being uncomfortable. Senator JACINTA COLLINS-I am asking your explanation for your behaviour. Dr Hammer-He was not forthcoming, so I did not persist. Senator JACINTA COLLINS-Did you have any understanding as to why he was not forthcoming? Dr Hammer-No. Senator JACINTA COLLINS-You did not seek to have an explanation from him about why he did not want to be forthcoming? Dr Hammer-No, I did not. I do not think I did; I am reasonably sure that I did not. CERTAIN MARITIME INCIDENT CMI 1852 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-So you sought on three occasions to have him be more specific. It is in your nature then to just give up? Dr Hammer-I am not sure whether I sought that on three occasions. My recollection of that meeting is not as crystallised as the recollections of Ms Sidhu and Commander King. Senator JACINTA COLLINS-What did you report back to Mr Potts? Dr Hammer-I remember letting him know-because I felt this was the important aspect of what he had asked me to do-that I had had the meeting he had asked to take place and that I thought we had a better understanding of our recollections. I think that was probably about it. I think I did point out to him that there had been a meeting in my office on 11 October and I felt that would be new information to him. It is something that I frankly barely recalled before I went into the meeting at the Hotel Kurrajong with Commander King and Ms Sidhu. Senator JACINTA COLLINS-Did you go into any further detail about the recollections of the three of you? Dr Hammer-I cannot clearly recall. No, I think that is it. I am stretching the limits of my memory here and I do not want to- Senator JACINTA COLLINS-You said earlier today that, unlike Ms Sidhu, who on an earlier occasion was not able to indicate the matters subject to a discrepancy, in your case you do recall one of the substantive issues being that there was a discrepancy between Ms Sidhu and Commander King over whether the information was formal information or a rumour. Dr Hammer-Yes, that is right. That is what I was actually reaching for. I was trying hard to remember whether I had passed that on to Mr Potts or not. It is entirely possible that I did, but I do not specifically recall doing it. I have limits in what I can and cannot remember on a great many things. Senator JACINTA COLLINS-Did that information then feed back to Ms Bryant, subject to her earlier request for information about this material? Dr Hammer-I do not know. Senator JACINTA COLLINS-You do not know? Dr Hammer-I do not know. I did not talk to Ms Bryant about it. Senator JACINTA COLLINS-So all you know is that you had a brief conversation with Mr Potts? Dr Hammer-Yes, that is it. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1853 Senator JACINTA COLLINS-You conveyed to him that you now had a recollection of a meeting on 11 October? Dr Hammer-Yes, that there had been a meeting on 11 October. Senator JACINTA COLLINS-That possibly there was a discrepancy between your recollections and those of Ms Sidhu and Commander King as to the status of the information? Dr Hammer-Yes, I may have informed him of that. Let me put it this way: I would be a bit surprised if I had not. Senator JACINTA COLLINS-Did you have any understanding of what he was then doing with that information? Dr Hammer-No, I did not. Senator JACINTA COLLINS-You mentioned earlier that you were something like an observer to the discussion between Ms Sidhu and Commander King over the status of the information. Did you convey to Commander King yourself that you understood its status to be that of a rumour? Dr Hammer-Yes, I may have. I am not totally sure. That certainly was my understanding. Up to that point, my understanding was that what had been conveyed to me and Ms Sidhu was a rumour. Senator JACINTA COLLINS-To some extent, it is a bit stronger than that, if I recall what you said to us earlier today, which was that, even though you have had difficulty remembering that a meeting had occurred in your office, the one thing you did remember about that meeting was that Commander King had indicated that the material was rumour. Dr Hammer-Yes. It is possible to dredge up memories. I have had a lot of time to reflect, and I now have a reasonable understanding, including through the exchange that took place at the Kurrajong, of what happened in my office on 11 October. But I do recall that, in my office on 11 October, what was presented to me was presented as a rumour. I do know that I had never heard of Commander Chatterton until his appearance before this committee. Certainly what was presented to me was not presented to me as formal advice from Defence. This is the proposition that Commander King put to Ms Sidhu at the Hotel Kurrajong. Senator JACINTA COLLINS-The concerning part of this picture, from the committee's end, is that, if you start with Commander Chatterton, you have formal advice- Dr Hammer-I do not know what Commander Chatterton's status is. I do not know whether he was in a position to provide formal advice-I cannot judge that. CERTAIN MARITIME INCIDENT CMI 1854 SENATE-Select Thursday, 13 June 2002 Senator JACINTA COLLINS-I am not asking you to. Dr Hammer-I am sorry. Senator JACINTA COLLINS-I am still halfway through explaining the situation as it has been presented to us now. We have Chatterton indicating that he provided formal information to Commander King, who indicated that he passed that information on to Ms Sidhu. Ms Sidhu indicated that she understood it to be rumour, although she was so concerned about his concern to ensure that it was raised with you on the day that she became aware of it. She understood Commander King to be quite concerned about the information and to be confident of its status. That then goes from Ms Sidhu and Commander King to you as being tearoom gossip. I think you said earlier, when you introduced the status of the information, that it was conveyed over coffee. That is the first I have understood the coffee to be a component of the evidence. Dr Hammer-I do not know how Commander King presented the information to Ms Sidhu before they came to see me, but they came to see me, I thought, ostensibly to brief me on Operation Slipper matters, and then at the end of that discussion Commander King said, `I have something further to raise. There is a rumour in Defence that there is something wrong with the timing of the photographs in today's papers.' That was what I heard. I did not hear any of this sense of urgency-and the idea that this was important that Commander King and Ms Sidhu appeared to have shared was not conveyed to me in my office on 11 October. Senator JACINTA COLLINS-What was the basis of your comment earlier today about at the side of a meeting over coffee? Dr Hammer-When Commander King had said at the Hotel Kurrajong, `I provided you guys with formal advice,' Ms Sidhu's response was, `Why did you tell me that this was something you overheard a couple of other people talking about over coffee or tea or something in the margins of the Operation Slipper meeting?' That is my recollection of her question. And Commander King responded, `I did that to protect my source.' That is where that came from. Tea or coffee- Senator JACINTA COLLINS-I ask that question because Ms Sidhu has not referred to the tea or coffee component of it in her description so far. Senator BRANDIS-What about the Bonox component, Senator? How silly! Truly. CHAIR-Order! Senator JACINTA COLLINS-Senator Brandis, you will have your chance to ask questions. CHAIR-Order! Let us proceed with the questions. We may be without a quorum shortly so we do not have a lot of time. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1855 Senator JACINTA COLLINS-I am seeking to follow through what has happened to some information- CHAIR-You do not have to explain, Senator Collins. Just ask the questions. Senator JACINTA COLLINS-that then becomes characterised as tearoom gossip. Dr Hammer seems to be suggesting that the basis of the tearoom gossip characterisation is that Ms Sidhu reports her original discussion with Commander King as having been `at the sides of a meeting over coffee or tea' yet Ms Sidhu has not presented that information to the committee so far. We have it indirectly- obviously, we can test that with Ms Sidhu if we choose to-but it is a long way for a piece of information to have been regarded as a formal report from Chatterton down to being tearoom gossip at the level of Dr Hammer. Senator BRANDIS-Was it coffee or tea? Senator JACINTA COLLINS-You might think that this is a joke, Senator Brandis, but- Senator BRANDIS-I think the line of questioning is extraordinarily trivial. Dr Hammer-It was conveyed to me on 11 October as a rumour not as tearoom gossip. The information was conveyed to me as: `There is a rumour in Defence that' not `I overheard somebody talking to someone else over tea.' I understand that Commander King characterised it to Ms Sidhu-this is Ms Sidhu's recollection-as that is how he came across the rumour, but I was never told about that on 11 October. I was simply told there was a rumour. Senator JACINTA COLLINS-Yes. It was then in the later meeting this year when you understood more about why she thought it was a rumour. Dr Hammer-That is what I heard Ms Sidhu and Commander King say to one another. Senator JACINTA COLLINS-I do not have anything further. CHAIR-I have a couple of questions to wrap it up from my point of view. At the relevant time, Dr Hammer, you were an officer in the Department of the Prime Minister and Cabinet; that is true, it is what we are talking about. This is the central department in Canberra, isn't it, that keeps the Prime Minister briefed of developments going on everywhere? Dr Hammer-Yes, that is true. CHAIR-At the relevant time an election had been called and we were moving into the phase of the caretaker period-a very sensitive period in the Public Service. You are nodding in the affirmative; I take that as a yes. CERTAIN MARITIME INCIDENT CMI 1856 SENATE-Select Thursday, 13 June 2002 Dr Hammer-Yes. CHAIR-The particular concern of the Prime Minister's department, however, is to keep the Prime Minister informed of all developments, because he is prone to be asked a question at any time by a journalist or a member of the public and he needs to know the answer, doesn't he? Dr Hammer-I think there is a lot more to it than that. He needs to be informed. He is the head of the country. CHAIR-Yes. And this department is set up to provide speedy information to him, among other things. Dr Hammer-Yes. CHAIR-It prides itself in being good at that. You are nodding in the affirmative again; I take that as a yes. If you were to fail in that task the Prime Minister is prone- and fair enough, I do not criticise him for it; in fact, it is a positive feature of his personality-to making it clear he is unhappy about not being properly supported, isn't he? Dr Hammer-I think he is probably relatively happy with the performance of the department, or he was at the time I was there. CHAIR-I know, but if we are in a position in which we have delegated responsibilities to people and if things happen that we need to know about and we are not told, we have to take the rap for it at the end of the day. The buck stops with the Prime Minister. He does expect you to tell him and if you do not then he is legitimately annoyed, isn't he? Dr Hammer-I guess he would be. CHAIR-I certainly would be. Commander King was working in the Department of the Prime Minister and Cabinet in a subordinate position to you as the liaison officer for the Department of Defence? Dr Hammer-No. I gather from the testimony that has come before this committee that that 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 special formal role in liaison with Defence. CHAIR-So the Department of Defence thinks he is the liaison officer but the Department of the Prime Minister and Cabinet sees him as having no special role? Dr Hammer-I think that the Department of Defence labels that position `defence liaison officer'. I would be surprised if it formally recognised Commander King as somebody who sits in Prime Minister and Cabinet dispensing special information from Defence to officers within the Department of the Prime Minister and Cabinet, CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1857 including myself. For the period of his secondment he was a line member of my branch, very much like any other member of the branch. CHAIR-If Defence designate him as a liaison officer they would regard him as someone who would keep them informed of events that they needed to know of from the Prime Minister's department's point of view, wouldn't they? Dr Hammer-I never had the impression that Defence regarded the ADF secondee into my branch as a special or formal conduit of information through to the Department of the Prime Minister and Cabinet. That was not his role. He was a secondee into PM&C. I treated him as a PM&C officer. CHAIR-But he is a significant officer with a real and important job to do? Dr Hammer-Yes. CHAIR-The rank of Commander is an important rank? Dr Hammer-Yes. CHAIR-We acknowledge the seniority that comes with that, and this is an experienced officer? Dr Hammer-An experienced ADF officer, not an experienced bureaucrat. CHAIR-We may come back to that definition. Going to the first incident, photos were published in the newspaper with a legend underneath them which said that they were photos of children who were thrown overboard. We know that for a fact. We also know for a fact that they were not-it was not true. As a general proposition, that is a substantial or glaring error in reporting, isn't it? Dr Hammer-In the newspaper reports? CHAIR-The fact that photos can be published, saying, `This is what happened,' when we know that those photographs were not true. That is a glaring error, is it not? Dr Hammer-With 20/20 hindsight, some time out from the time those photographs were published, if there were a problem with the photographs one would have to ask how come it did not come to light sooner than it did, I agree, yes. CHAIR-I am not suggesting that you are responsible for this at all, but if you were responsible for an error of that magnitude you would be embarrassed. You would regard this as, to use the colloquial phrase, a stuff-up of the first order, wouldn't you? Dr Hammer-If I had had responsibility for that set of issues and I had had any advice, I guess, that-it is too hypothetical for me because I just was not familiar with the issues at the time. It was not my area. CERTAIN MARITIME INCIDENT CMI 1858 SENATE-Select Thursday, 13 June 2002 CHAIR-I am not inviting you to incriminate yourself and say that you were responsible, because I do not think you were. I am not putting that proposition to you. All I am asking you to do is to agree with the unexceptional proposition that, if a newspaper publishes a photograph in the highly charged atmosphere of an election where there is an important issue about boat people and it is wrong, that is a glaring error. I think that reasonably we would all agree with that. You would agree with that, wouldn't you? Dr Hammer-On whether it was an error, it was just incorrect reporting, yes. CHAIR-It is wrong. To use my earlier phrase, it is a stuff-up. That is the technical phrase. Dr Hammer-By the newspapers or whoever-who was supposed to verify whether or not the photographs were correct? How was that supposed to happen? I do not know. There may have been a stuff-up somewhere, yes. CHAIR-It is something that should have been corrected, as well, isn't it? We can agree on that too, can't we? If an error has been made, it should be corrected. That is the normal thing, isn't it? Dr Hammer-Yes. CHAIR-Are you aware that the Prime Minister has a code of ministerial conduct that specifically says that an obligation on ministers is that, when an error has been made, they should immediately correct it? Dr Hammer-It is a reasonable proposition, yes. CHAIR-It is a reasonable proposition; you are absolutely right. Dr Hammer-I assume it is in the code of conduct. CHAIR-You are aware of this reasonable proposition? Senator BRANDIS-It was not always observed during the government of which you were a member, I must say, Senator Cook. Senator JACINTA COLLINS-It is actually in the code of conduct. CHAIR-Senator Brandis, you point out to me where that is true. I can point out to you where it has not been observed by this government. But let us not get into red herrings here. That is a red herring and you are trying to derail me. I am trying to get through this quickly so I can send us all home. We now know-again, it may be 20/20 hindsight-that from this incident no child was thrown overboard. We know that it was told to the Australian public at this sensitive time that children were thrown into the sea, and we now know as a matter of fact that the record was not corrected until CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1859 after the election, which was over a month after the event. We know all that. That is another example of a glaring error that should have been corrected, isn't it? Dr Hammer-Yes. CHAIR-If someone is responsible for that type of error they would, at the minimum, be counselled for lack of attention or responsibility. Isn't that the normal Public Service approach? More things may be done to them, but at the very least they would be chatted to about it, wouldn't they? Dr Hammer-I think it would be quite probable. CHAIR-Are you aware of the phrase of `plausible deniability'? Dr Hammer-Only in pulp fiction. CHAIR-Have you heard it before?-that is what I am asking. Have you heard the phrase `plausible deniability'? Dr Hammer-I have heard of it, yes. CHAIR-What do you think it means? Senator BRANDIS-I think you read too many airport- Dr Hammer-It is difficult. I am trying to reach for a definition of it. I do not know. CHAIR-You don't know? Dr Hammer-I have a feeling for it. What is it-a believable lie or something like that? I do not know. CHAIR-I am happy to accept your definition of plausible deniability as `believable lie'. So we have this sophisticated organisation, your department at the time-Prime Minister and Cabinet-focused on keeping the Prime Minister informed, and the explanation we have is that he was not. Was that due to a failure of communication? Dr Hammer-Yes. The high bandwidth communication system set up between the defence organisation and Jane Halton's task force never carried that message. CHAIR-Is that plausible deniability? Dr Hammer-I do not know; I cannot judge. I was not involved in the task force or, in any concrete sense, with the people in Defence that presumably should have communicated the information to the task force. CERTAIN MARITIME INCIDENT CMI 1860 SENATE-Select Thursday, 13 June 2002 CHAIR-Commander King told you of this rumour, as it has been described, that the photographs of the children in the water were not true. Dr Hammer-He said that there was something wrong with the timing to do with the photographs-that was the message. CHAIR-Did you ask him what that was? Dr Hammer-No. CHAIR-Why not? Dr Hammer-I was extremely busy. I had what was categorised as a rumour presented to me about something which I did not have any responsibility for and which I did not have any real sense of context for. CHAIR-Commander King gives you a good rap. Commander King says that you are an excellent officer. He said that-looking at the Hansard-you do not `miss a trick'. Is that a fair description? Dr Hammer-It is very kind of Commander King to say that, but one of the ways I try to maximise my efficiency for the purpose of being a public servant is to focus very hard and rather ruthlessly prioritise onto the material and the issues which I have responsibility for. I push aside and filter out the stuff that I do not think I need to action and I leave it. On this occasion, there were two reasons for leaving it. One, Jane Halton's task force had all these senior defence people on it. If this thing had any substance to it, it would have been reported through to her. I had every reason to believe that that would happen. Two, it was presented to me as a rumour, and I was extremely busy on post September 11 matters. Senator BRANDIS-Would you have been doing your job properly if you pursued every silly rumour you heard? CHAIR-If I may, Senator Brandis. I am addressing you, Dr Hammer. You will talk to me-if Senator Brandis would not mind containing himself. Senator BRANDIS-I was just trying to elaborate on your- CHAIR-You will get a chance, do not worry. This is a democratic organisation. Everyone gets a go. This is my go, so I will take it if you do not mind. Senator MASON-Senator Brandis was trying to help you. CHAIR-No, I am not sure that he was. Senator BRANDIS-I was, truly. No, honestly, I was. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1861 CHAIR-I will take your word for it, but, if you do not mind, I do not need the assistance at the moment. We go back to the nature of what we talked about at PM&C. It ought to keep the Prime Minister advised; it did not. This is an error. Dr Hammer-It could not, perhaps. Perhaps it was never provided with the information it needed in any form that was reasonable. CHAIR-That is one of the very things we are talking about. We are talking about you being told, as a responsible officer, of a rumour pertinent to the fact that these photos had been published wrongly, mislabelled wrongly, in an election time when this was a hot button issue. We are talking about that. That is context. Dr Hammer-But I was not told that. I was told that there was a rumour going around in Defence that there was something wrong with the timing of the photos in today's papers. I was not focused on this issue. This may have been a big political issue, but I am not political. I was working on a set of issues as a bureaucrat with the Department of the Prime Minister and Cabinet. My worry was making sure the Prime Minister and the secretary of the department were effectively briefed on the issues for which I had responsibility, and it was extremely demanding on me consistently to achieve that. So I prioritised and I filtered out stuff. CHAIR-You have said that before; you have repeated it again. There is no point in me raking over all of that, and I will not. What is Ms Sidhu's rank again? Dr Hammer-We call it an EL2. CHAIR-Does she directly report to you? Dr Hammer-Yes. CHAIR-You have her in your office; you have Commander King-what was his rank? Dr Hammer-He would have been an EL1 equivalent. CHAIR-He reports to her. You have both these people. Dr Hammer-Yes. CHAIR-On their evidence, they found some time-because you are a busy officer-to actually see you. That is what they said. They are in your office, having found this time, and they say to you that there is this rumour. Dr Hammer-I understood that they wished to- CHAIR-Let me complete the question, if I may. You are a very busy officer. Why did you not then refer them to the part of the department that was responsible for this CERTAIN MARITIME INCIDENT CMI 1862 SENATE-Select Thursday, 13 June 2002 issue? You could not deal with it. You were focused on the post September 11 events. One understands that. Why did you not delegate it? Dr Hammer-Part of the way that PM&C has to work is that it has to filter out extraneous, unreliable material. You do not bother the Prime Minister or the secretary or a deputy secretary or whoever with material that just looks fishy. CHAIR-I am not suggesting that you kick it upstairs. I am suggesting you put it horizontally off to the area of the department that was dealing with this. Dr Hammer-The meeting that took place in my office on the 11th was, I thought, to discuss Operation Slipper matters. I did not get a sense of urgency out of Commander King and Ms Sidhu about the bit they added onto the end about the photographs. If they had that feeling about it, which apparently they did, they did not convey it to me at the time. CHAIR-But if you are there talking about gold and someone comes in and says, `I want to talk about silver,' why do you not just say, `Go to the silver department and talk about that'? Why did you not do that in this issue? Dr Hammer-I have given the reasons a number of times, including in the submission that I gave to the secretary of PM&C. There was no reason to believe that this piece of information, characterised as a rumour, had anything special about it. I had every reason to believe that, if it did in the end have any significance, it would come through as part of the briefing of the senior defence people who had a formal liaison role with PM&C-the senior representatives on Jane Halton's task force, which was meeting on a daily basis-and that they would convey that information forward. In other words, I judged that, if it was important, the most efficient way for the department to handle it would be for that information to come forward through the proper channels, through the senior defence liaison people to Ms Halton's task force. CHAIR-That would have been- Dr Hammer-I did not want to instruct Commander King or Ms Sidhu to bother people with rumours that I could not apply any context to because I was not following the issues. CHAIR-Did you ask Commander King whether he believed this rumour? Dr Hammer-No, I did not. CHAIR-Did you seek in any way to try to establish the weight one should give to this rumour? Dr Hammer-I do not recall the specifics of the discussion well enough to know that. I may have; I cannot recall. CHAIR-You may have? CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1863 Dr Hammer-I cannot recall, Senator. CHAIR-Commander King said in evidence that you don't miss a trick, that you are a pretty sharp operator. Surely you can remember this. Dr Hammer-I don't. CHAIR-You don't? Dr Hammer-It is a very- CHAIR-But you have two officers in your department-one directly responsible to you and one a more junior officer, but a uniformed officer from the Department of Defence and a commander in the Australian Navy no less-saying to you that they have encountered this rumour. That is not an event of small moment. Dr Hammer-Commander King often did not wear his uniform to work. What I am trying to say is that he was just a member of my branch. I did not treat him as anything special. CHAIR-But you knew him to be a uniformed officer in the Royal Australian Navy. Dr Hammer-Of course, yes. CHAIR-You knew he had come on secondment from Defence and you knew that he was wired into the Russell Hill establishment. You knew all that. Dr Hammer-I did not have any real idea of how wired in he was to the Russell Hill establishment at all. I do not know how the Russell Hill establishment works to be honest with you. I studied it very closely, but I never mastered it. CHAIR-I do not know how it works either. That is why, when a commander who comes from that establishment tells me something, I would pay some regard to him, and I thought you might as well. Dr Hammer-People were telling me lots of things all the time. I did discard lots of things and lots of pieces of information that I was told, because I judged that they would be swept up in some other process or that they just simply did not matter or what have you. Commander King may have characterised me as somebody who does not miss a trick, but it is true that you do miss some things. CHAIR-Given we all agree that this was a stuff-up, for the sake of the discussion, are you responsible for if for not doing these things? Dr Hammer-I do not feel that I am responsible. The output from defence in the period that you are talking about, the sensitive period, appears to have been so tenuous that we are spending hours in this committee talking about a three-minute CERTAIN MARITIME INCIDENT CMI 1864 SENATE-Select Thursday, 13 June 2002 appraisal to me by a junior defence officer seconded to PM&C of a rumour about a possible problem with the photographs. Where was the defence organisation and all of the people within defence who were dealing with this at the time? Who were they talking to? What were the senior defence people at Jane Halton's task force meetings every day saying on this issue? Were they saying nothing? I do not know, I was not at those task force meetings, but I am very surprised that all of what one would consider to be the formal arrangements and the information conduits failed to deliver anything through to PM&C. CHAIR-What if Commander King-I am not sure if it was King or Sidhu-told you that it was tearoom gossip because they wanted to protect their sources? Dr Hammer-That is what Commander King told Harinder Sidhu at the meeting on 11 March. CHAIR-No antennae; they want to protect their sources? This has a sense of other implications-if people are concerned about protecting their sources-doesn't it? Dr Hammer-Occasionally you get information about a defence project or what have you, and it would be provided within the branch on an unattributed basis-you know, something wrong with some aspect of the Collins project or one defence project or another. That would happen from time to time and sometimes you would take up that information and sometimes you would not. That information, broadly speaking, was not presented as rumour, though. It was presented as this sort of thing: `I do not want to tell you who has told me this, but-'. That would happen sometimes. CHAIR-`But you should know'? Dr Hammer-Yes, that is right. CHAIR-Yes, you should know. Dr Hammer-But that was not the way it was put to me. CHAIR-You should know so that you can act. Dr Hammer-This one was put to me as: `There is a rumour circulating.' Senator BRANDIS-I do not want to go ad nauseam over this, but can I put this to you in my way. You used the word `filtering' a little earlier to describe a part of your task. By that I understand-correct me if I am wrong, or elaborate on this if you like-that one of the things you had to do as a senior Public Service officer was to make judgment calls on a regular basis about the status and reliability of information that may have come to your attention. Is that right? Dr Hammer-That is absolutely correct. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1865 Senator BRANDIS-Is that what you meant by `filtering'? Dr Hammer-That is right. Senator BRANDIS-And in making those judgments, one of your professional skills as a senior public servant was to make a decision about which pieces of information that came to your attention should be investigated further or actioned, which should be delegated to somebody else, and which could be disregarded by you-either entirely, or because they were in somebody else's bailiwick. Is that right? Dr Hammer-That is absolutely correct. Senator BRANDIS-When I speak of the status of information, would you agree with me that there is an order of reliability of information, in which tearoom gossip or a rumour would be fairly low down the chain of status? Dr Hammer-Very much so. Senator BRANDIS-If you hear something that is described to you as merely a rumour, about an issue which is not particularly important to you and is not your responsibility anyway, do you think you would have been doing your job properly if you had not filtered it out? Dr Hammer-No. I believe that at the time I did have a responsibility in that sense. It did not come to the front of my mind but, yes, I was doing that all the time. I was saying, `I am not going to bother someone with this,' or what have you, because-exactly. Quite so. Senator BRANDIS-And that was the judgment that you in fact made in this case, about this self-described rumour, which was not part of your responsibility anyway? Dr Hammer-Yes. Senator MASON-Running rumours to ground is not part of your core business. Dr Hammer-Certainly not-especially not on issues which are not in my area of responsibility and that have been worked to death in other areas of the department. CHAIR-So referring those rumours to the other areas of the department is the prudent and responsible thing to do, is it not? Dr Hammer-No, I do not think so, because that other area of the department was hearing everything that was worth hearing from the Defence liaison people that were meeting in that task force every day. That was my judgment. If it was worth hearing, it would be presented to PM&C through that. If it had not been presented to me as a rumour, I might well have acted differently-but it was presented to me as a rumour. CHAIR-But you do not know that they heard everything. CERTAIN MARITIME INCIDENT CMI 1866 SENATE-Select Thursday, 13 June 2002 Dr Hammer-No, but nor did I need to make a judgment about that. I just assumed that a good department-as you said, Senator-would be hearing everything and that they would be chasing a few things down and maybe pressing Defence a little bit on some matters. Senator BRANDIS-It is a fairly safe assumption that they would have heard relevant pieces of information-wouldn't they?-when you are dealing with a high- level task force which, as you say, meets every day and which includes senior officers from PM&C, Defence, DIMIA, the Attorney-General's Department, AFP, Coastwatch and the Customs Service. This is a right-across-government-at-senior-level, high-level task force which is specifically seized with this very matter. Would it be a fair assumption that that was the organ of government that should have been dealing with this, not you? Dr Hammer-Absolutely, and might I say that I have a great deal of respect for Jane Halton. She has a mind like a steel trap and I am sure that that task force operated very effectively. CHAIR-May I just draw on that cricketing analogy, where you back up to prevent overthrows. Someone is dealing with the issue but, in order to make sure the team succeeds, officers back one another, or players back one another. That would seem to me to be an appropriate analogy in these circumstances. If you heard something relevant to another section, you would flick them a note just to back them up. Dr Hammer-That depends on your judgment, as Senator Brandis was saying, about the quality of the information. This was not high quality information. Senator BRANDIS-Part of the professional skills that you professed in your role was to make those judgments about the quality of information on a daily basis across a whole range of different areas of government. Dr Hammer-Very much so. CHAIR-And we will now make some judgments about all of this. Are there any further questions? Senator JACINTA COLLINS-I have one, Dr Hammer, that goes back to Senator Cook's questions about why this information was not passed on to the social policy unit at the time dealing with these sorts of issues. I have difficulty understanding- and this perhaps relates to your comments that Ms Sidhu and Commander King did not make clear to you at the time the urgency they felt related to this information. But if we go back to Ms Sidhu's evidence, she said, for instance, in relation to gossip, rumour and stories, `We get stories all the time through where I work and some of them are significant or form part of a bigger story.' She said to us earlier today that one of the reasons for taking that information to you would be that you often have knowledge of a bigger story, which could help fit a piece into a jigsaw. It is obvious from what you have said that, no, you were filtering out anything other than what you were working on at the time, and you had no notion of this other story. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1867 For the life of me, though, I still cannot understand why you simply did not say to them, `Look, I have concerns with the status of the information' or `You should feed this information to those who have a bigger picture on this area'? Dr Hammer-It may have been that I was so preoccupied that I had started to think about the next issue that I was going to deal with. That sometimes happens and it is bad management practice, but I was psychologically probably moving on and I did not think to give them any instructions. Senator JACINTA COLLINS-In an ideal world, that is what you think should have happened with that sort of information? Dr Hammer-In an ideal world, the Department of the Prime Minister and Cabinet is peopled by an infinite number of people who can deal with every issue that comes across their desks, but we have to cut our cloth to suit the human resources available and, on this one, we just did not action it, for the reasons I have explained. Senator BRANDIS-But, Dr Hammer, the point of my question before, of course, is that part of the whole concept of dealing with an issue includes making judgments about whether or not it ought to be pursued by you, or at all, because there just is not enough substance to it to warrant the dedication of resources to it. By making a judgment not to pursue it, you were, in fact, dealing with it. Dr Hammer-Yes, I agree with that interpretation. Senator JACINTA COLLINS-Senator Brandis, give us a break! CHAIR-Senator Brandis does not miss an opportunity for you to improve your answer, Dr Hammer. Senator JACINTA COLLINS-He doesn't. Dr Hammer can confirm this if he likes, but I think he was indicating-to the question: why didn't he indicate that he had concerns with the status of the information that was put to him?-that, in an ideal world, perhaps he would have. Dr Hammer-Yes, that is perhaps true. Senator JACINTA COLLINS-If the two people before you understood that to be the case, they would have said, `Well, it is urgent and we will follow up getting more information' or else they would have been directed to the unit that was on top of the picture. Dr Hammer-Yes. One of the things which did not happen was that nobody at all-including Ms Sidhu and Commander King, and all of the senior contacts which I had in the Defence organisation-ever came back to me with anything about this. If that had happened, I may then have-I did not actually choose not to do anything. I chose to put the piece of information aside and then nothing ever came of it. Nobody CERTAIN MARITIME INCIDENT CMI 1868 SENATE-Select Thursday, 13 June 2002 ever came back to me, and nobody ever came again and said, `This is serious' or `I've heard another rumour' or what have you. Senator JACINTA COLLINS-In fact, part of that problem was what we covered just a moment ago. It was the fact that there was nothing resolved amongst the three of you about what was to occur further to your discussion. Dr Hammer-I had resolved to filter. Senator JACINTA COLLINS-Yes, you resolved to filter but you did not translate to the other two that that was what you had resolved to do. Dr Hammer-No. Senator JACINTA COLLINS-And you did not indicate to the other two that you had concerns with the status of the information. For instance, in his evidence to us, Commander King said things like `the information was not to be trifled with' and that it was `not an insubstantial rumour'. Dr Hammer-That certainly was not conveyed to me in the way that they presented the information to me. Commander King did not, for example, say, `Dr Hammer, this information is not to be trifled with,' or anything of that type. Senator JACINTA COLLINS-So you did not act; you filtered, and they did not understand that that was what you were doing? Dr Hammer-I am not sure. You would have to ask them whether they understood that. Senator JACINTA COLLINS-My recollection, though it is dated, is that that was the case. Again, the final point on this issue is: why was that information not referred to the social policy unit-as indeed Ms Sidhu indicated when she finally passed that information on to Ms Wildermuth, saying, `Oh, didn't you know?' It appears she had assumed that it would have been referred to the relevant unit. Dr Hammer-One may have assumed that the defence liaison to the task force had fed the information into the task force. We did not check to see whether that had happened, because it was not in our area of responsibility. Senator JACINTA COLLINS-And it was not referred? Dr Hammer-Not to my knowledge-not by me. The Defence organisation could at any time have sent Commander Chatterton to the task force to talk about it. Senator JACINTA COLLINS-They could have. That concludes my questions. CHAIR-Thank you, Dr Hammer. CERTAIN MARITIME INCIDENT Thursday, 13 June 2002 SENATE-Select CMI 1869 Committee adjourned at 3.56 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Official Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident THURSDAY, 11 JULY 2002 CANBERRA BY AUTHORITY OF THE SENATE INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Brandis, Collins, Cook, Faulkner and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES DAVIDSON, Mr Clive, Chief Executive Officer, Australian Maritime Safety Authority ...................1872 GALLAGHER, Colonel Patrick John, Commander, Australian Theatre Joint Intelligence Centre...........................................................................................................................................................1884 KEELTY, Commissioner Michael Joseph, Commissioner, Australian Federal Police........................ 1923 KILLESTEYN, Mr Edward Victor, Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs ....................................................................................................... 1985 McDEVITT, Federal Agent Brendon Joseph, General Manager, National, Australian Federal Police............................................................................................................................................................ 1923 McMAHON, Mr Vincent, Acting Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs ....................................................................................................... 1985 SIEGMUND, Ms Nelly, Assistant Secretary, Department of Immigration and Multicultural and Indigenous Affairs ...................................................................................................................................... 1985 Thursday, 11 July 2002 SENATE-Select CMI 1871 Committee met at 9.36 a.m. CHAIR-I declare open this meeting of the Senate Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate are available from secretariat staff, and copies have been placed near the entrance to the room. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of the public aspects of proceedings. I remind members that there will be a private meeting of the committee during the dinner break. The waiting room two doors down is for witnesses only and is a private area to which the press and the public have no access. I remind everyone that mobile phones are to be switched off in the hearing room. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as Chair, and the committee will consider the request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy. However, officers may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. When witnesses are first called upon to answer a question, they should state clearly their names and positions. Witnesses will be asked to make an oath or affirmation. Where witnesses are accompanied by counsel, counsel may be seated at the witness table but counsel may not answer questions on behalf of the witness, nor will the committee direct any questions to counsel. CERTAIN MARITIME INCIDENT CMI 1872 SENATE-Select Thursday, 11 July 2002 [9.39 a.m.] DAVIDSON, Mr Clive, Chief Executive Officer, Australian Maritime Safety Authority CHAIR-Our first witness today is Mr Clive Davidson. Do you have any comments to make by way of an opening statement? Mr Davidson-I have none. CHAIR-Are you happy if we now, therefore, proceed to questions? Mr Davidson-Yes. Senator JACINTA COLLINS-Mr Davidson, I had not actually sought for you to appear today, but I will take the opportunity to go through with you the questions on notice that you answered, in relation to file notes referring to communications with the RCC. That was you; you are the relevant person to raise this with? Mr Davidson-Correct. CHAIR-These are answers given to questions on notice that have not, as I understand it, been released. Is that right? Senator JACINTA COLLINS-I believe perhaps not. It is unclear whether the clearing process we went through last week in relation to the Defence documentation also incorporated these. Perhaps I can clarify one point, Mr Davidson: did these answers to questions on notice go through the minister's office? Mr Davidson-No, they are answers from me to the committee. Senator JACINTA COLLINS-They have not been through the minister's office? Mr Davidson-They have. Senator JACINTA COLLINS-They have been through the minister's office? CHAIR-Before we proceed, can I put this question: does the committee resolve to release this material? There being no objection, it is so agreed. You may proceed, Senator Collins. Senator JACINTA COLLINS-Mr Davidson, I would like to take you to the last file note that we were given, I think, through the secretariat. We sought some clarification so that we could read the words. Perhaps I will take you through what I understand this file note to read, and you can confirm that for me firstly. There is a call; was it a telephone call between Headquarters Australian Theatre, Defence, and the RCC on 22 October at 5.46? Is that a.m.? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1873 Mr Davidson-That would be UTC time. Senator JACINTA COLLINS-What does UTC time convert to? Mr Davidson-About nine hours behind current Eastern Standard Time. Senator JACINTA COLLINS-Is the basis of this file note a telephone conversation? Mr Davidson-Yes, it is. Senator JACINTA COLLINS-Defence rings the RCC and says, `Just got your fax. What is your source?' Now, that fax is? Mr Davidson-The fax is the one that appears at the second page of the documents that were released. Senator JACINTA COLLINS-This is the fax advice to BASARNAS re overdue SIEV? Mr Davidson-No, it is the fax from Coastwatch to AusSAR. Sorry, you are correct. I apologise; you are right. Senator JACINTA COLLINS-I am right. Mr Davidson-You are right. It is the fax just prior to that. Senator JACINTA COLLINS-Just before we go back to that file note, what does `Marabahaya Marabahaya Marabahaya' mean? Mr Davidson-`Attention Attention Attention'. Senator JACINTA COLLINS-So this fax that Defence is about to conduct this telephone conversation about indicates that-and I quote: RCC Australia has been advised that a vessel carrying an unknown number of persons departed the west coast of Java on Friday 19 October 2001 transiting the Sunda Straits heading for Christmas Island. This vessel has not yet arrived and concerns have been expressed for its safety. Passed for information and action as considered necessary. Defence then talks back to the RCC in this phone conversation, saying: Just got your fax. What is your source? The RCC says Coastwatch is the source. Mr Davidson-That is correct. CERTAIN MARITIME INCIDENT CMI 1874 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-Defence then says-I am not sure what the `R' here refers to, before we get to the content of that next phrase. Mr Davidson-`Response'. Senator JACINTA COLLINS-Okay. Defence says: We already have a large search for this vessel for surveillance matters. The next comment is: `Search and rescue?' Mr Davidson-Yes. Senator JACINTA COLLINS-Defence then says back: No. Only surveillance. Mr Davidson-That is correct, yes. Senator JACINTA COLLINS-And then there is just an `R' at the bottom. I wonder if you can explain to me what that `R' at the bottom means. Mr Davidson-It would have been a response, which would have been `Thanks' or `Goodbye'. Senator JACINTA COLLINS-It is a closing-off? Mr Davidson-Yes. It just says the `end of the transmission.' It says they responded to that in some fashion, but it was not material in terms of anything. Senator JACINTA COLLINS-Are there any further communications relevant to AMSA that are related to this incident? Mr Davidson-That is the sum total of our file on the matter. Senator JACINTA COLLINS-This is the last of it? Mr Davidson-Yes. Senator JACINTA COLLINS-So even though you issued a warning and Defence came back to you and said, `We are conducting a large search for this vessel but only for surveillance matters,' no further action was taken regarding the expressed concern for the safety of the people on board the vessel from AMSA's perspective? Mr Davidson-That is correct, yes. Senator JACINTA COLLINS-From what I can gather, the main reason you are here this morning-and in the light of that communication I think this issue is even more important-is CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1875 to give you an opportunity to clarify an apparent conflict between your evidence and the evidence of Admiral Bonser of Coastwatch. Let me take you through that. The fundamental issue here is: why did AusSAR not issue a broadcast alert to shipping on 22 October once advised by Coastwatch that SIEVX was assessed as probably overdue? The material we have from your last appearance says that normally you would not issue a broadcast in the absence of a specific known distress alert-that is on the Hansard, reference 1372. But we need to understand why Bonser, when he appeared before us, indicated that his understanding was that a broadcast to shipping can be issued once an assessment has been made that a vessel is overdue, and that could be not only in cases where specific distress signals have been received. Indeed, that was the point of Coastwatch informing AusSAR that the vessel was overdue on 22 October. Could you address that point for us, please? Mr Davidson-To the best that I can, Senator. I think the circumstance is that there is no certainty that AMSA would broadcast to shipping, particularly when the nature of the information coming from Coastwatch was very small and unclear. In the follow-up phone call coming from Defence there was a suggestion that they in fact had a large surveillance exercise going, presumably to locate the vessel. The specific question was asked: was there a search and rescue? The answer was no. On that basis, since the matter had been brought to our attention by Coastwatch, since within Coastwatch the sense was that the RCC ought to be advised, and since the vessel was believed to be in the Indonesian search and rescue region, we felt that, in the same way, we ought to immediately convey that information to our counterparts in BASARNAS. But at that stage there was no knowledge of location of the vessel or whether, indeed, it had departed; and there was no indication that it was in distress or likely to be in distress. The sum total of our information was that contained in the fax from Coastwatch and it said, `A vessel carrying an unknown number' of potential illegal immigrants. Senator JACINTA COLLINS-Can you take me to that. Mr Davidson-In the material that was tendered in response to the questions there is a telephone conference note, and the second page is the fax received from Coastwatch. Senator JACINTA COLLINS-Let us go to this very first one because I want to understand the difference between what information was before Coastwatch and what was identified as already residing elsewhere in the system. The first page here is advice from Coastwatch. Mr Davidson-There was a telephone call from Coastwatch to the Rescue Coordination Centre in AMSA, which said: Coastwatch intel wants me to advise you of a suspected over due SIEV. (gave contact of manager). The response: `Please fax across.' The reply to that was `OK'. That was at UTC 4.37 and it came across subsequently to that. It is on the next page. Senator JACINTA COLLINS-Where it says `A number of sources are reporting ...'. Mr Davidson-And that is the sum total of AMSA's information on the nature of that vessel. CERTAIN MARITIME INCIDENT CMI 1876 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-It says `By our calculations this vessel is now overdue'. Where does the reference to concerns for safety come from? What then goes into the warning is that concerns had been expressed for its safety. Mr Davidson-I will go to the next telephone conference, which was from the Rescue Coordination Centre to Coastwatch. It says: Touching base to ensure Defence are aware and that this area is out of our SRR- that is the search and rescue region. The answer from Coastwatch said: Yes-realise that-ensuring you are aware and we will keep you in the loop over the coming days. The response was: Can we use your exact words in a fax to BASARNAS (SAR colleagues Indonesia)- that is search and rescue colleagues in Indonesia. The reply from Coastwatch was: Yes-exact words. RCC said: OK, thank you. The next one is a file note, which is a calculation of the approximate steaming time of a vessel at four knots, five knots and six knots to cover 300 nautical miles. In other words, it was confirming, in our minds, that it was potentially overdue if it had departed and was indeed steaming towards Christmas Island. Senator JACINTA COLLINS-So the express safety concern was based on Coastwatch's calculations that, on steaming times, it was overdue? Mr Davidson-I think the generation of concerns expressed for its safety would have been the sense that our people would have got from having been informed by Coastwatch in the manner in which they had been. Senator JACINTA COLLINS-But without detail about- Mr Davidson-Having absolutely no-I suspect that it was adding colour, probably from conversations or just from the sense that we had been informed and were passing it to BASARNAS. Senator JACINTA COLLINS-This is where we need to go back to the question of the relevance of whether it was in the Australian search and rescue zone as compared with Indonesia's. My impression-and correct me if I am wrong-is that Coastwatch often conducts search and rescue in the Indonesian search and rescue zone. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1877 Mr Davidson-Coastwatch conducts surveillance; I would not say often. In fact, from memory, I would be hard-pressed to recall an activity in which they were conducting search and rescue. In the evidence I gave the last time, I explained that the first party anywhere in the world that becomes aware of a distress situation must take all steps to attempt to get some sort of rescue in place. At the same time, they take steps to hand that off to the competent authority that has responsibility for that search and rescue region. In this particular case, there was no evidence of a distress. There was a suggestion that a vessel may have departed and that, on calculations, it was overdue, if it had indeed departed. Since Coastwatch felt it was important that that information be provided to us, we equally felt it was important that it should be provided to BASARNAS. That, in essence, is the beginning and the end of it. Senator JACINTA COLLINS-So when the Palapa was identified in the Indonesian search and rescue zone, it was solely for surveillance purposes, was it? Mr Davidson-It was under surveillance from the Coastwatch aircraft, yes. Senator JACINTA COLLINS-And, similarly, SIEV4-was that solely for surveillance purposes? Mr Davidson-I am not familiar with that one. Senator JACINTA COLLINS-By the time we were in SIEV4, Coastwatch had been moved away and Defence was conducting surveillance; that is right. If we go to the final telephone conversation, why would the question be asked as to whether Defence was searching for the vessel solely for surveillance matters? Mr Davidson-It was asked because our responsibility is exclusively about search and rescue, and it is quite appropriate that the people responsible for search and rescue would confirm with the Defence people that there was no search and rescue issue. Senator JACINTA COLLINS-Just go back a moment: you indicated a moment ago that one of the maritime principles, for want of a better expression, is that it is the responsibility of any party that is out there to assist, if it becomes aware of distress, in search and rescue. This conversation confirms that Defence are conducting a large search for this vessel but at the same time say, `But we are not concerned about search and rescue.' Why would that be? Mr Davidson-I can only assume that, at the time, they were not concerned about it for search and rescue purposes. Senator JACINTA COLLINS-Why weren't they concerned? You had just issued a warning. Mr Davidson-No, we provided the information that had been given to us by Coastwatch to BASARNAS. It was simply advising them in the terms that we had, essentially, received from Coastwatch. We had received the information and it was appropriate that the adjacent search and rescue authority also receive it. CERTAIN MARITIME INCIDENT CMI 1878 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-As I understand the way BASARNAS operates, it often calls on Australia to conduct its search and rescue for it. That is what happened with the Pelapa. Mr Davidson-That is not correct. Senator JACINTA COLLINS-In the case of the Pelapa, Australian aerial surveillance was not looking for BASARNAS? Mr Davidson-In the case of the Pelapa, Coastwatch were conducting surveillance for potentially illegal immigrant vessels, and they located one. Senator JACINTA COLLINS-They were not performing any search and rescue role at the request of Indonesian authorities? Mr Davidson-No. Senator JACINTA COLLINS-And that never occurs, to your understanding? Mr Davidson-No, it did not. Senator JACINTA COLLINS-No, I am asking whether it ever occurs, to your understanding. Mr Davidson-I am not aware of any circumstance where BASARNAS has requested us to conduct search and rescue events on their behalf. Senator JACINTA COLLINS-Okay. I still want to go back to your earlier point, which was this: if, in terms of maritime standards, you become aware that there is a potential distress situation and you are there, it is your responsibility to assist with search and rescue. Is that the case? Mr Davidson-Yes, that is the case. Senator JACINTA COLLINS-If we look at this last conversation from Headquarters Australian Theatre, they know because they have received a copy of your fax to BASARNAS saying that there is a potential distress situation in the zone where they are surveilling. When RCC then says to them, `Search and rescue,' they say, `No, only surveillance,' and nothing else gets done. Mr Davidson-The true circumstance is that the Headquarters Australian Theatre had precisely the same information that was conveyed to AMSA in that fax that came from Coastwatch. When they read the fax from us to BASARNAS they wanted to confirm that we were talking about the same vessel and that the language that was in essence added to that, which was, `concerns have been expressed for its safety,' was introducing other knowledge that someone else had injected into the issue. So Defence were trying to confirm whether there was something different or more knowledge that they did not have. That conversation then took CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1879 place and it confirmed that we had generated that fax to BASARNAS based on only the knowledge that was in the Coastwatch fax and- Senator JACINTA COLLINS-Where is that conversation? Mr Davidson-It is the final conversation from Headquarters Australian Theatre: `Just got your fax. What is your source?' We said, `Coastwatch.' The basis of that was to confirm that, indeed, everyone was dealing with the same situation and the same vessels. They were just trying to confirm whether, in some process, some more information had not been injected that led to the concern for its safety. I would say that the colour of that has been injected either from conversations with Coastwatch or by people within the Rescue Coordination Centre. There was no information that would suggest that that was the case, other than its condition. Senator JACINTA COLLINS-What you have in part confirmed is that AusSAR was not aware of the detail of the AFP report, but Defence was. Mr Davidson-That is all we had in that- Senator JACINTA COLLINS-According to our evidence from Bonser, the AFP information that went to Defence that described further the issue about concern was not received by AusSAR. Mr Davidson-That is correct. It was not. Senator JACINTA COLLINS-The remaining question I have about AusSAR's role here is that when you reached the decision not to issue an alert to shipping, which Bonser seems to indicate was the purpose for advising you in the first place, why was the point not made at the time that there was insufficient information to warrant such an alert and Coastwatch was not asked to provide further information if that were necessary? Mr Davidson-With due respect to Admiral Bonser's knowledge of search and rescue, the actual processes that take place within the search and rescue centre are matters of judgment within the centre, and the conclusion that my people drew was that it did not warrant a broadcast to shipping. That is a judgment that they have to make in each circumstance. There is general guidance in various manuals about the various phases of a SAR-a search and rescue- and, in the technical parlance, this is the uncertainty phase: there is insufficient information, a concern has been expressed and then people search for collateral or confirming information that warrants some action being taken. If we were to send a broadcast out to shipping on every overdue notice we get, there would be a continuous, unending stream of overdue notices out to shipping, because people are overdue every single day. Senator JACINTA COLLINS-What concerns me is that we do not see any sign of the search for further information. We do not see AusSAR going back to Coastwatch and saying, `There is not enough information here. What more have you got?' We do not hear of AusSAR going back to Coastwatch and saying, `Fine. Thank you. But there is not enough concern to warrant what you seem to anticipate would occur.' We do not see AusSAR saying to Defence, `What else is there?' We just see a conversation with Defence, where Defence says, `We are conducting a large search.' CERTAIN MARITIME INCIDENT CMI 1880 SENATE-Select Thursday, 11 July 2002 Mr Davidson-I think you need to set it in the context of the resources that were available at the time and that would have been deployed to act if there was a search and rescue event. Quite frankly, the nature of the information from Coastwatch was hardly alarmist and hardly raised a high degree of concern. That was confirmed in a conversation with the Headquarters Australian Theatre, where the sense of the conversation and, indeed, the results of that were essentially that they were out there looking for it, so if there was a situation they had the assets on the ground and in the air. I am not terribly sure what you are expecting the search and rescue centre to have done over and above that. We confirmed, in terms of the calculations for a vessel travelling at the various speeds, that it was indeed overdue. It was passed to us from Coastwatch and therefore it was appropriate that we pass that on to BASARNAS. As Coastwatch obviously felt there was sufficient reason for us to be pre-alerted, we should pre-alert BASARNAS in exactly the same fashion, because it was in their search and rescue region. Senator BRANDIS-Are you quite satisfied that in its assessment of this vessel your agency treated this vessel in the same way that it would treat any other vessel? In other words, were the operational procedures of your agency applied in this case in the same way as they would have been applied in any other case? Mr Davidson-Yes, I am, Senator. Senator JACINTA COLLINS-Going back to the last communication, I want to understand what confidence AusSAR received from this final communication. As you have said, this was the end of the matter as far as you were concerned once you spoke to Defence. You spoke to Defence and they said: We already have a large search for this vessel for surveillance matters. Would AusSAR take that to mean that they were looking specifically for this vessel or that they would expect to pick up this vessel in their routine surveillance? Mr Davidson-It was taken to mean that they were specifically looking for that vessel. Senator JACINTA COLLINS-Would you expect that, in line with your earlier comment, if Defence is in the area where a potential distress alert has been issued, then search and rescue is also their responsibility? Mr Davidson-Yes. Senator JACINTA COLLINS-Thank you. That concludes my questions. Senator FAULKNER-I have a question on another matter. Thank you for answering the questions in relation to conversations you had with Mr Moore-Wilton, at least in part. Did Mr Moore-Wilton have other contact with AMSA apart from you in the period from 26 August through to early September? Mr Davidson-No, he did not. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1881 Senator FAULKNER-So those two conversations, one on the morning of Wednesday, 29 August and one on 4 September are the only conversations that Mr Moore-Wilton had with officers of AMSA? Mr Davidson-Yes, to the best of my knowledge. Senator FAULKNER-I am sorry, you have just qualified- Mr Davidson-He did not have any other conversations. Senator FAULKNER-Thank you. I did ask you about the content of those particular conversations. I will just turn up the answer to the question on notice that you provided. You said: ... neither of which had an impact on AMSA's operation. My question is: could you outline those contacts for the benefit of the committee, please? Your answer to that is that they did not have any impact on AMSA's operations. With due respect, that is not really an answer to my question. So what were they about? Mr Davidson-To the best of my recollection, the phone call of 29 August at about 9.30-odd in the morning resulted in a fax that was sent to the Tampa at 9.25 a.m. on that day. Senator FAULKNER-And that was about? Mr Davidson-That was advising the Tampa that helicopters were being readied, and a range of issues. Senator FAULKNER-Have you made a copy of that fax available to this committee? Mr Davidson-The Tampa timeline material has that fax. It said: ... sent message to Tampa forbidding vessel to enter Australian territorial waters. Tampa was advised that helicopter being readied to effect transfer of doctor and medical supplies today. Senator FAULKNER-So would it be possible to get a copy of the original fax, the original note? Mr Davidson-Yes. Senator FAULKNER-Thank you very much, if you could take that on notice. And the second conversation of 4 September? Mr Davidson-To the best of my recollection, it concerned newspaper articles that were being circulated at the time. Senator FAULKNER-Could you give me more detail, please. CERTAIN MARITIME INCIDENT CMI 1882 SENATE-Select Thursday, 11 July 2002 Mr Davidson-I honestly don't recall. Senator FAULKNER-Through this period, you only had two conversations with Mr Moore-Wilton. That is right, isn't it? Mr Davidson-Yes. Senator FAULKNER-How often did you have a contact with the head of the Department of Prime Minister and Cabinet? Not that often, obviously. Mr Davidson-Infrequently. Senator FAULKNER-What was the purpose of a call on 4 September-what newspaper articles? What was the concern? Mr Davidson-I believe that he had been contacted by a newspaper about some matter concerning AMSA and he wanted to confirm whether we had been talking with the press. Senator FAULKNER-But what was the matter? Surely you remember, because you do not have too many conversations with Mr Moore-Wilton. What were you being accused of leaking? Mr Davidson-To the best of my recollection, I think there had been an article in the press- I think it was the Weekend Australian-which was a relatively long piece that made various statements that included references to Mr Max Moore-Wilton. He wanted to know if we had been the source of that, if we had indeed talked to the press at any stage. I confirmed that no conversation had taken place with the press. Senator FAULKNER-So Mr Moore-Wilton initiated both those calls? Mr Davidson-He did, yes. Senator FAULKNER-Did you take a file note of either of those calls? Mr Davidson-No. Senator FAULKNER-You have answered my question in relation to Ms Philippa Godwin and her conversations with AMSA. In question No. 6, I asked about Ms Godwin, and you have indicated that none of the two or three conversations with Ms Godwin on the evening of 26 August 2001 had an impact on AMSA's operations either, which is helpful. Could you tell me what they were about, please? Mr Davidson-Essentially, it was exchanging information with Immigration on what my understanding was of the intent of the Tampa at that time and what Immigration's understanding was. Both the Rescue Coordination Centre and officers from Immigration were having conversations with the vessel separately, and we were merely exchanging the information that we had subsequent to those conversations. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1883 Senator FAULKNER-In this period did you have any contact from any other senior members of the Department of the Prime Minister and Cabinet? Mr Davidson-I need to refresh my memory on that. Senator FAULKNER-Could you take it on notice to indicate who the contact was from and what the nature of the contact was. Also, could you do the same in relation to any senior members of DIMIA and DFAT and any other relevant members of the precursor to the People Smuggling Task Force, just so that we do not delay the committee. You may care to check your records; I appreciate that. Mr Davidson-Yes. Senator FAULKNER-I am interested not just in relation to you but in relation to any others. Obviously, on a Sunday evening when you are on duty I do accept, of course, that at the end of the day the buck stops with you as far as AMSA is concerned, but there may be other senior members of your organisation who may have been contacted at that time. If they were, the detail of such contact and the nature of such contact would be appreciated. I had the chance for a very cursory examination of the time line. At any stage was the captain of the Tampa, Captain Rinnan, given permission by AMSA to go to Christmas Island? Mr Davidson-No, he was not. Senator FAULKNER-Thank you. CHAIR-We seem to have concluded our questions to you, Mr Davidson. I do not think it is likely that you will receive a recall, so thank you very much. Proceedings suspended from 10.15 a.m. to 10.35 a.m. CERTAIN MARITIME INCIDENT CMI 1884 SENATE-Select Thursday, 11 July 2002 GALLAGHER, Colonel Patrick John, Commander, Australian Theatre Joint Intelligence Centre CHAIR-Welcome. Do you have any opening remarks to make? Col. Gallagher-Yes, I do. CHAIR-Please proceed. Col. Gallagher-I would like to begin by thanking the committee for its invitation to appear before it. I am the current Commander of the Australian Theatre Joint Intelligence Centre, commonly referred to as the ASTJIC, which is collocated with the Headquarters Australian Theatre in Sydney. I assumed my position as Commander ASTJIC on 14 January 2002. I am aware that the committee has received a letter from the Minister for Defence concerning my appearance today. Further to that letter, I hope to assist you by describing the arrangements for receiving and distributing intelligence within the Australian Theatre, thereby providing you with some context for the chronology that has been provided to the committee in relation to the vessel that has become known as SIEVX. Without wishing to hinder the work of the committee, I ask you to note that, whilst I am happy to respond to any questions posed, I am always mindful of security considerations. If required to answer a question that pertains to classified matters, I may request the committee to move to an in-camera session. I thank the committee in advance for its understanding in this regard. To begin with, it may assist the committee if I provide some background about my organisation by describing its role and its place within the Australian Theatre and the wider defence intelligence system. The role of the ASTJIC is to provide Commander Australian Theatre, COMAST, and his operational and tactical level commanders with fused, near real- time, all source intelligence to support the planning for and day to day conduct of Australian Defence Force operations. To achieve this level of support, the ASTJIC operates 24 hours each day, every day of the year. During October 2001, in addition to providing intelligence in support of Operation Relex, the ASTJIC provided high levels of support to actual or potential ADF operations in the Middle East, Central Asia, the Arabian Gulf, East Timor, Bougainville, the Solomon Islands and the Southern Ocean. During the same period, the ASTJIC was also monitoring the security of ADF deployments to Bosnia and Kosovo, Israel and Lebanon, the Sinai, Sierra Leone, Eritrea and Ethiopia, and Mozambique. It was clearly a busy time for the ASTJIC and the Australian Theatre as a whole. My organisation works directly for COMAST and provides intelligence to his headquarters and to ADF forces conducting operations under his command. As an all source operational level intelligence agency, the ASTJIC does not collect intelligence; instead, it receives information and intelligence from Defence and other Australian government agencies. Once information or intelligence is received, the ASTJIC, within its capacity, analyses and tailors it to develop a theatre-wide intelligence picture. In developing that daily picture, the ASTJIC considers each of CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1885 the many operations being planned or conducted across the theatre. The picture is continuously updated and disseminated throughout each 24-hour period. In the normal course of events for military operations, ASTJIC receives the bulk of its information and intelligence from Canberra based Defence intelligence agencies and from deployed ADF forces. However, you will note from the chronology on SIEVX that has been provided to you that, in the case of Operation Relex, almost all of the relevant information and intelligence was received from DIMIA, then known as DIMA, and from Coastwatch. Once it was received, ASTJIC routinely correlated the DIMA and Coastwatch intelligence reports and presented a consolidated forecast of anticipated SIEV activity to COMAST and to subordinate ADF headquarters and units. The forecast was disseminated by daily briefings, formal messages and Defence intranet webpage updates. In summary, the ASTJIC is an advisory agency responsible for providing intelligence that contributes to the situational awareness and decision making processes of COMAST and his subordinate ADF commanders. As Commander ASTJIC, I am not part of the operational decision making process, and I am therefore only able to offer authoritative comment on intelligence related matters. Thank you for the opportunity to make this statement; I hope it is of some assistance to your inquiry. CHAIR-Thank you, Colonel Gallagher. Before I ask the committee whether they have any questions of you, I seek some advice on a point of clarification. We sought from the Minister for Defence the appearance of Rear Admiral Gates, and he suggested to us that you were a more appropriate officer. Can you describe for me where in the hierarchy you sit in relation to Rear Admiral Gates? Col. Gallagher-I am outside of his direct chain of command; I work for the Commander Australian Theatre. CHAIR-But you supplied to Rear Admiral Gates some information in compiling the report, did you not? Col. Gallagher-Indeed, Senator. That is because he was heading an inquiry into the distribution of information within Defence relating to these matters. CHAIR-Were you the significant source for his report? Col. Gallagher-No, I was not. A number of agencies within Defence would have contributed, I am sure. Certainly I can recall commenting on the papers that were forwarded to this committee, as I am aware Headquarters Northern Command also did. CHAIR-Could you tell us which other agencies, apart from your own, contributed to that report? Col. Gallagher-I do not know for certain; I would have to find out precisely. If you wish me to, I will take that on notice. CHAIR-Indeed. As Senator Collins opened the batting, do you have any questions, Senator Mason? CERTAIN MARITIME INCIDENT CMI 1886 SENATE-Select Thursday, 11 July 2002 Senator MASON-I have no questions at this stage. Senator FAULKNER-Colonel Gallagher, can you indicate to the committee whether ASTJIC actually made a written contribution for inclusion in Admiral Gates's report on the SIEVX incident? Col. Gallagher-The written contribution that we made, as far as I am aware, was that we had no comment. We reviewed it to see that it was consistent with our understanding of the chain of reporting available to Defence at the time, and I was happy that it was an accurate reflection of the information available to Defence at the time. Senator FAULKNER-Did ASTJIC provide material, apart from any written material-I am drawing a distinction here between anything created by ASTJIC for inclusion in Admiral Gates's report and any primary sources, if you like, that might have been passed from ASTJIC to Admiral Gates? I want it to be clear that I am drawing that distinction; it may not be a valid one but I want to be clear on that point. Col. Gallagher-I recollect that some of our primary source material was passed to the people doing the investigation. Senator FAULKNER-Thank you. In relation to the primary source material, and without getting into detail, can you indicate broadly what the nature of the primary source material would be? Col. Gallagher-Yes, it would have been copies of daily briefings that we would have presented, copies of material that would have been posted to our defence secure intranet webpages and I am sure also copies of formal message traffic that would have left the ASTJIC regarding these matters. Senator FAULKNER-Thanks for that. In each of those three broad categories, it sounds like that is material that is generated within ASTJIC as opposed to material that comes into ASTJIC. Would that be correct? In other words, the daily briefings you are talking about, the material posted on the intranet, the formal message traffic-is this all material that is created effectively within ASTJIC? Col. Gallagher-No, not in terms of the original source documentation. As I mentioned in my opening statement, the vast majority-and I do mean the vast bulk-of the intelligence that was being provided into the defence intelligence system was coming from other agencies, in particular DIMA, Coastwatch and I am aware that, to an extent, their reporting was based on material coming from other agencies within the Australian government. Senator FAULKNER-Sure, but what you are saying is that some of that material, also in its raw form, if you like, would have been passed through to Rear Admiral Gates effectively from ASTJIC? Col. Gallagher-I am not sure that we would have passed the original source documentation because we would then have had to go through the process of seeking a release from the originator to start sending it to people who were not on the original distribution list. I would CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1887 assume, and I am always aware of making assumptions, that some of that material was made available to that review. Senator FAULKNER-Anyway, what happens to it as far as you are aware? I appreciate you may not know all the detail of this. In the preparation of Admiral Gates's report, material that is generated from within your intelligence centre and possibly some other material is passed directly to Admiral Gates for his consideration in the preparation of his material. Col. Gallagher-I really cannot answer that question. That is a question you would have to put to Admiral Gates or his team. Senator FAULKNER-That is a very fair answer for you to give to me. You have been offered up, as I understand it, to the committee along with another officer from Defence because the minister has not approved Admiral Gates's appearance before the committee. I do not know if you are aware of that background. I am not able to ask Admiral Gates these questions. You are here effectively we are told as a proxy for Admiral Gates. Col. Gallagher-I am unaware of the decision making process that was undertaken. CHAIR-Senator Faulkner, can I interrupt for a moment? Is it possible to get a copy of your opening statement? Is it in a condition that can be photocopied? Col. Gallagher-Indeed. CHAIR-One of the attendants will make a copy. Senator FAULKNER-Did you have a talk with Admiral Gates about how you might handle your appearance here today? It would be perfectly reasonable if you did. Col. Gallagher-I did meet with Admiral Gates yesterday. He explained his understanding of why I was appearing in front of the committee which was consistent with what the minister wrote in his letter to the committee about my appearance. Senator FAULKNER-What is your understanding of why you are appearing before the committee? Col. Gallagher-My understanding is that I am here to explain how information gets into the defence intelligence system and what happens to it once it is in the system and how it is distributed to the people who need it to conduct operations. Senator FAULKNER-But why you? Col. Gallagher-The ASTJIC is the primary intelligence production agency that supports the conduct of ADF operations. I am talking about all ADF operations. As I mentioned in my opening statement, you can see that we provide intelligence support to people who are deployed and to the operational decision makers across a large number of operations as a matter of course. That is why we exist. I report directly to COMAST. CERTAIN MARITIME INCIDENT CMI 1888 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Did Admiral Gates or some other officer inform you that it was appropriate that you attend? You said that the committee invited you-and that is absolutely fair enough-but the committee might suggest that the minister offered you up and that the minister suggested you attend. Col. Gallagher-That is my understanding. I really cannot explain the process that they went through to make the decision to present me to the committee. Senator FAULKNER-You have not had any discussions with the minister or the minister's office about this? Col. Gallagher-I have had absolutely no discussions with anybody else. In fact, I have had no discussions with anybody about anything I might or might not say; indeed, the only discussions I have had with people have been about the sorts of questions I might expect from you. Senator FAULKNER-That is fair enough and it is extremely wise, Colonel. I think we would all be impressed with that approach. CHAIR-Perhaps we should ask you what questions we were going to ask and save us a whole lot of time. Senator JACINTA COLLINS-None of those discussions occurred at the Kurrajong Hotel, did they? Col. Gallagher-No. In fact, the only people I have had a cup of coffee with this morning are Senator Cook and Senator Faulkner. CHAIR-I am a witness to that. Senator FAULKNER-You just misled the committee, Colonel, because I had a cup of tea. Col. Gallagher-My apologies. Senator FAULKNER-You had a cup of coffee. On a serious basis, the point is that I am unable to ask Admiral Gates these questions at this stage, though I hope that we will have an opportunity to do that at some stage. I think that would be not only in the committee's interests but also in the interests of the ADF if Admiral Gates were able to appear before the committee and present the broad picture about SIEVX and the report that he has undertaken. But that is a comment for me to make and I do not expect you to respond. Given what you have been able to advise us in your opening statement, and I think that that background was helpful to us, who would you be able to say is the coordinator of intelligence in relation to Operation Relex? What agency would you identify as the intelligence coordinator? Col. Gallagher-The principal agency responsible for providing intelligence support to Operation Relex from the time Defence took the lead in early September through until 31 October was the ASTJIC. From 1 November onwards, because of the tempo of activity that was CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1889 occurring in the ASTJIC trying to support all of those other operations, the responsibility was shifted to Headquarters Northern Command for a number of reasons but, principally, because of operational tempo and their familiarity with the problem. Senator FAULKNER-Do the raw intelligence reports that you receive necessarily all go through another agency? I am particularly interested in understanding what the role of DIMIA's Border Protection Branch might be and whether that intelligence is all passed through some central assessment agency. Col. Gallagher-Information that came into Defence went to DIO, the ASTJIC and Headquarters Northern Command almost simultaneously, but DIO was not directly part of the operational intelligence support arrangements. We tended to receive processed material-that is, not the raw reports-from DIMIA and Coastwatch and only rarely were we presented with information that could clearly be sourced to another agency, for example, the Australian Federal Police. Senator FAULKNER-As far as ASTJIC is concerned, the same material that comes in to you goes to DIO and NORCOM as well? Col. Gallagher-Yes, that is correct-and almost simultaneously. If it came in electronically it did go simultaneously. If it came in in hard copy, as most of the DIMIA material did, it had to be faxed across secure facsimile connections. So there was obviously some time lag-but not a significant time lag-between the distributions. Senator FAULKNER-So most of the raw intelligence comes from DIMIA, does it? Col. Gallagher-I am not sure about the raw intelligence. All I can say is that most of the processed intelligence-the formal intelligence product-came from DIMIA. Senator FAULKNER-Has that intelligence product, or raw intelligence, that comes from other agencies all gone to DIMIA as well, as far as you understand? You may not be able to answer that, but your understanding might assist us. Col. Gallagher-My expectation would be that all of that material was made available to DIMIA. As I have mentioned before, I am confident that all of the information that was made available to Defence was shared within Defence. Senator FAULKNER-So the majority of this comes from DIMIA. Then, of course, there are other sources. You identified the Australian Federal Police-is that right? Col. Gallagher-Yes. The Australian Federal Police were cited as the source in a number of reports. Senator FAULKNER-You identified Coastwatch earlier. Col. Gallagher-Indeed. CERTAIN MARITIME INCIDENT CMI 1890 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Would you be able to identify other agencies for us, please? Col. Gallagher-I am not sure about other Commonwealth government agencies, but certainly there is occasional-I make the point, very occasional-material from the Defence Signals Directorate. Senator FAULKNER-Are you able to identify any other agencies? Col. Gallagher-I prefer not to. I prefer not to delve into areas where I really cannot comment regarding what DIMIA was receiving from whom. I can only make judgments based on the fact that we very occasionally saw some of our own reporting relating to this and I know that that went to DIMIA. Senator FAULKNER-What I am asking is the process question of which agencies are inputting to ASTJIC, that is all-I am not asking you about anything beyond that. Col. Gallagher-Directly to ASTJIC there is DIMIA, Coastwatch, the Defence Signals Directorate and DIO-who, like us, are not collectors but are an all-source analysis agency. There are also our own operational forces. We were getting reports back from the ships at sea, the aeroplanes that were flying and Headquarters Northern Command. Senator FAULKNER-And AFP? Col. Gallagher-No, we were not receiving reports directly from AFP. Senator FAULKNER-Are there any others that you can identify? Col. Gallagher-No, we were not receiving reports directly from other agencies, apart from those within Defence. Senator JACINTA COLLINS-I am sorry, did you say you were not getting reports directly from AFP? Col. Gallagher-As far as I am aware. Certainly the ASTJIC was not. I cannot speak for other parts of Defence. Senator FAULKNER-What was the working relationship between ASTJIC and DIMIA's Border Protection Branch? How did that work on a day to day basis? Col. Gallagher-I might say up front that it was a very good relationship. Certainly, our relationship with Coastwatch was equally close. Each day formal reporting would come from DIMIA, usually in the early afternoon. It should be borne in mind that I was not at ASTJIC at the time-I have deduced this from examining the products and talking to people who were there at the time. The analysts at ASTJIC would clarify any areas that were seen as doubtful in order to try and fine down the ASTJIC product, to tailor it to what was required to support the development of situational awareness in the commander's mind about what was going on at the CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1891 theatre level-and I assume this was so that the commander could make decisions about the apportionment of resources to conduct Operation Relex. Senator FAULKNER-Did you receive the DIMIA intelligence notes? Col. Gallagher-Yes. Senator FAULKNER-What was the turnaround time in relation to those? Col. Gallagher-When you say turnaround time- Senator FAULKNER-Did you get them pretty quickly? It all came through pretty quickly, did it? Col. Gallagher-Once they were published, yes. We usually got them between midday and three o'clock in the afternoon. Senator FAULKNER-I appreciate that you can only comment as far as ASTJIC is concerned but what happens after you receive this advice? Can you explain to us what happens once you receive these advices from these agencies? Col. Gallagher-We would take the various products and the previous reporting and attempt to establish links to earlier reports with a view to determining what had changed and what, on the balance of probabilities, was likely to occur in the future. In the short term we were focused very much like Coastwatch on the seven-day, 14-day period. A lot of the DIMIA product tended to be looking out much further than that and, as you would understand, was therefore less definitive. None of the intelligence that we were receiving regarding any of the SIEVs was definitive. I had a discussion recently with one of my colleagues at Headquarters Northern Command. We came to the view that about 40 per cent of what we received related actually to vessels that turned up or materialised. In the broad scheme of things this is a very imprecise area. Senator FAULKNER-Did you make an assessment of the weight you might put on intelligence reports that you were receiving? Is that the sort of role you undertook? Col. Gallagher-We were unable to do that because we did not have access to the original source reports. You can only start making conclusions about the credibility and reliability of different streams of reporting if you have access to the original reporting. In most cases we did not have access to the original reporting. Where we did, it was a very small proportion of the reporting and insufficient to make a judgment on. Senator FAULKNER-To your knowledge does any part of Defence have access to the original reporting? Col. Gallagher-Not to my knowledge. CERTAIN MARITIME INCIDENT CMI 1892 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-After you undertake your work what do you do with this intelligence? Once these reports are dealt with in ASTJIC what then is your responsibility in terms of passing such intelligence on to other elements of the Defence command? Col. Gallagher-If there was anything of sufficient moment, we would phone people who were involved in conducting the operation, and we would follow that with formal message traffic in what we call an intelligence report-a very short, unevaluated message that simply would describe whatever facts were known at the time-and that would be followed by more closely analysed reporting, either in the form of a formal intelligence summary or in a report in the daily theatre intelligence brief. Senator FAULKNER-Your intelligence reporting is third-hand at least, isn't it? You do not get primary sources, you get intelligence reports that are developed from primary sources, and then effectively you pass on material that has been further analysed. Is that a fair way of summing it up? Col. Gallagher-That is a fair way of explaining what we were doing, and we recognise this as, from our perspective, a limitation but we were working within the confines of other agencies' preparedness to distribute material directly to us. Senator FAULKNER-Whatever you are passing on, by the time you pass it on it is at best third-hand, isn't it? Col. Gallagher-In most cases but it is fair to say that we were comparing the veracity of reporting coming out of DIMIA and Coastwatch. In other words, we were able to make judgments based on what they had said previously, so we were doing our own form of evaluation so that we could put some sort of balance of probability on it for Commander Australian Theatre. Senator FAULKNER-I have described your assessments as at best third-hand; perhaps a better description would be in most cases third-hand. It would be fair, wouldn't it, if I said that in most cases they were third-hand? Col. Gallagher-That would be a fair description. Senator FAULKNER-Where does that go? We start with primary sources. It comes in as intelligence reporting from primary sources. It comes in second-hand to ASTJIC. In most cases it goes out third-hand. What I am interested in understanding is: where does it go to out of your intelligence centre? Col. Gallagher-It goes to all people involved in conducting the operation, which would have been the ships at sea; the aircraft, or the squadrons that the aircraft belonged to; Headquarters Northern Command; and all four component commands-that is, naval, land, air and special operations. Information copies would have been forwarded to DIO, DSD and DIGO. Senator FAULKNER-Understanding that, does it mean that in terms of the surveillance operation for Operation Relex that is where the Defence intelligence input comes? Is that right? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1893 Col. Gallagher-It originates from the ASTJIC or- Senator FAULKNER-Is the surveillance side of the operation, which I appreciate you are not directly involved in, dependent on intelligence reports coming out of your intelligence centre? Col. Gallagher-To a large extent, yes. Senator FAULKNER-I hear you say, `To a large extent,' and that is logical but are you able to say how large that extent is? Col. Gallagher-Yes. I could not quantify it but I guess I could try to describe it. DIO was providing advice principally at the strategic level to, obviously, its customers in Canberra. The ASTJIC's principal customers are Commander Australian Theatre and his component commanders. In this case I assume that the component commanders you are most interested in are the maritime and air commanders. Senator FAULKNER-Yes. I appreciate that. Col. Gallagher-And also to Headquarters NORCOM. But Headquarters NORCOM were also receiving the same material. Senator FAULKNER-That is right. And receiving it from you, if they did not receive it from direct sources. Col. Gallagher-Absolutely. Senator FAULKNER-But to a large extent, the surveillance operation is dependent on what is coming out of your intelligence centre. That is what I assumed would be the case and you have been able to confirm that for us. That is right, isn't it? Col. Gallagher-Yes. Senator FAULKNER-So, if we have a suspected illegal entry vessel-and we had a number during the latter half of last year and the period of Operation Relex-those conducting surveillance, to a large measure, would be dependent on the reporting out of your intelligence centre? Col. Gallagher-Yes. Senator FAULKNER-Given that this is third-hand, does that give an unfair picture about the time delay? Or is there a timelag in relation to getting any crucial information that comes from your intelligence sources to those responsible for surveillance? Col. Gallagher-There were a number of timelags involved. But within the defence system, which is all I can really speak to, the time delays were never more than about 24 hours. That was simply a case of a number of the reports related to vessels that may or may not be expected CERTAIN MARITIME INCIDENT CMI 1894 SENATE-Select Thursday, 11 July 2002 to sail from any number of ports during the next number of days. Given the transit times involved, it was not imperative to be waking people in the middle of the night to tell them that a vessel was expected to leave in three days time, because the transit times, as previous witnesses have testified, are quite lengthy, ranging up to 72 hours. Senator FAULKNER-Your intelligence assessments and reporting to other parts of defence is obviously quite crucial in terms of surveillance activity, isn't it? There is absolutely a direct link. Col. Gallagher-There is a nexus between intelligence and surveillance. They are interactive to a large extent. My recollection is that Admiral Ritchie testified about the relationship between intelligence and surveillance in his mind. I would agree with what he said at the time, which was that the intelligence relating to these vessels was of insufficient fidelity to allow precise targeting of surveillance assets. My understanding of the approach that was being taken was by a process of logic to work out the tracks that these vessels were likely to take, and to concentrate appropriate resources along those tracks. Senator FAULKNER-Are you aware of any problems caused by the timelag that we have been talking of? Can you give the committee examples of any tangible problems? Col. Gallagher-Yes, I can. Different agencies did not work on weekends, which meant that there was often 48 hours or more timelag in material arriving on a Monday, or even on a Tuesday, that had come into the system at some point either late on Friday or over the weekend. I hasten to add that it was not a factor within Defence, because the ASTJIC runs 24 hours a day. As soon as we got information or intelligence, it was processed and, if it was of sufficient moment, it was immediately advised to people. Otherwise, we waited until the next day to include it in the morning briefing for the commander and his component commanders. Senator FAULKNER-As you are aware, the issue of SIEVX has been canvassed. In the examination that has been done internally within Defence about SIEVX, are you aware of any concerns about timelags or delays relating to that particular illegal entry vessel? Col. Gallagher-I cannot speak to the timing of the receipt of original source reports, because they are outside Defence. I can say that, on each occasion that we were advised of anything to do with SIEVX during the period from about 14 October onwards, it was passed on to the people who needed to see it or know about it as quickly as was required under the circumstances. For example, earlier that week, briefings waited until the next day because there were these reports: `It's coming,' `It's going,' `It's leaving from this port,' or `It's leaving from that port.' It was very obscure as to exactly what was occurring. Once we were advised by Coastwatch on 20 October that the vessel was reported to have departed at a time and from a place, as you have heard in previous testimony, we reported it immediately to all the people who received the normal distribution of intelligence. It is most unfortunate that, at the time we were reporting it had departed, the vessel had already foundered. Senator FAULKNER-One of the issues is to try and establish an understanding of why that was the case, because there was obviously a lot of raw or primary intelligence about this particular vessel. Is that a fair comment to make? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1895 Col. Gallagher-I really cannot comment on how much raw intelligence there was involving this vessel. I simply do not know and I would suggest it would be difficult for me to find out in a short period of time. That is possibly a question that might be better directed at other witnesses. Senator FAULKNER-What you can say, though, is what intelligence reports came in to ASTJIC. You can say that-not primary sources but intelligence reports. Are you able to advise us of any delay or any process issues that arose in relation to that reporting, assessment at ASTJIC and then passing this information on to those who were directly involved in the surveillance activity? This is one of the issues that have been raised, and I think it is important that the committee and, for that matter, the public have an understanding of whether that was an issue in relation to SIEVX. Col. Gallagher-During the period when ASTJIC was the lead theatre intelligence production agency for Operation Relex, the ASTJIC intelligence watch system was running 24 hours a day. My predecessor constituted a small analytical team to support Operation Relex. It consisted of between two and four people, it worked seven days a week and it worked on extended hours from 0500 in the morning until 2100 in the evening-occasionally later, but they were the core hours covered. That was because it had become apparent, certainly by the end of September, that all of the relevant reporting arrived at ASTJIC during the early morning and late afternoon-early evening. Once material was received and people had done their analysis, prepared items for the following morning's briefing, issued any relevant intelligence reports, sent out intelligence summaries, or posted material to the web page, that was it. There was not much more we could do if material was not coming in overnight. Very rarely did material come in overnight. When it did, the theatre intelligence watch officer would call a member of the analytical team to determine the significance of whatever had come in. Senator FAULKNER-In the assessments that have been done internally in Defence in relation to the events surrounding the sinking of SIEVX, has any issue or concern about the time delay been identified? Col. Gallagher-Not to my knowledge. I can simply make the observation that, based on the ASTJIC's records, when material was received it was reported as soon as it was appropriate to report it. In other words, if it related to long-term issues it was reported over the next day or so; if it related to issues of immediate concern it was reported immediately. How that material was handled once it went to the recipients in terms of timeliness I cannot speak to. Senator FAULKNER-Rear Admiral Bonser from Coastwatch talked to the committee about what Coastwatch did when they received intelligence advice about a vessel like the Abu Qussey vessel, and that is that they would pass it on to your intelligence centre and NORCOM, and would do so by secure phone. Rear Admiral Bonser has given evidence to this committee about that process but he has done so from, if you like, the Coastwatch perspective, which is what you would expect. For the benefit of the committee, could you give us an insight into what would occur at ASTJIC when such a call comes in? CERTAIN MARITIME INCIDENT CMI 1896 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-Probably the best example is what occurred on 20 October, when Coastwatch contacted the ASTJIC by secure phone at 0950 local time. That call was completed just after 10 o'clock local time, in Sydney. That was a Saturday. I am not sure whether the ASTJIC analytical team were at work on that day, but I am sure that they were contacted because at 1100 that day an intelligence report was issued from the ASTJIC which encompassed the issues that are identified as being in the NORCOM INTSUM, which is in the record of intelligence reporting that you have. Senator FAULKNER-There is about an hour's turnaround in this case? Col. Gallagher-Yes. Senator FAULKNER-That would go to, amongst others, those who were responsible for surveillance? Col. Gallagher-Yes, that is correct. Senator FAULKNER-Have you or anyone else in ASTJIC examined what occurred in relation to the events surrounding SIEVX? Have you or anyone else been tasked to undertake that role? Col. Gallagher-No. I have not been tasked with any sort of forensic examination of material. In order to prepare myself for appearing before you I have familiarised myself with the train of events and reporting, which was the basis of my comment before that what has been presented to the committee is consistent with my understanding of the information that was available to Defence at the time. Senator FAULKNER-I am sure; that is absolutely fair enough. But what I am wondering, particularly in relation to the preparation of Admiral Gates's report but not exclusively, is what level of investigation there has been. You cannot comment outside ASTJIC, I appreciate; that is why I am limiting my question to your own intelligence centre. I am just wondering what, if any, examinations, inquiries, assessments have been made about events surrounding the SIEVX. It may not have happened, but that is the point of my question. Col. Gallagher-We were requested to provide material to the people conducting the investigation or the review, and we did such. I am unaware of anybody coming to visit the ASTJIC, for example, to interview people who may or may not have been there at the time. Senator FAULKNER-So the supply of documentation is the limit of it, as far as you know? Col. Gallagher-Yes. Senator FAULKNER-In relation to the SIEVX vessel specifically-which is the reason that you are here today-are you able to outline to the committee what reporting you received and what reports were sent from ASTJIC? Are you able to detail that for the benefit of the committee? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1897 Col. Gallagher-I can explain it; I am not sure I can detail it to the level that you- Senator FAULKNER-Perhaps I could ask you to explain it, Colonel. Col. Gallagher-The initial reporting that is relevant, I think, to the period began with the receipt of Coastwatch Civil Maritime Surveillance Program operation summary on 14 October, which was the one that first identified that the Abu Qussey vessel was delayed, and that was based on an intelligence report of 11 October. I am unaware of who that report came from. That was a Sunday. What happened then was that the information was processed in the ASTJIC, it was included, given that the vessel was reported as- Senator FAULKNER-Do you know how it came to you? Col. Gallagher-Yes. It would have been come to us by-I am just trying to remember how the Coastwatch summaries were coming to us. It could have been either electronic or secure fax. Because of the fact that the vessel was delayed, that would have been reported the following day. It was reported that day, I think, in the updating of the web pages and it would have been reported the following day, which would have been Monday the 15th, in the daily Theatre intelligence brief. Then there was a formal message that went out following that intelligence brief encapsulating the key points from the brief. So people who attended the brief would have heard about the beginning of the chain of events and, as I say, a formal message also followed, summarising what was contained in the daily brief. So if they were not there they had access or would have been able to access that information. Subsequently, the next reporting that is of interest are the reports from Coastwatch that the vessel was reported to be moving from one port to another. It is a common occurrence-as I am sure has been testified to before-that the people smugglers would move their vessels through a number of ports. That was reported by the ASTJIC in the Theatre intelligence briefing on the morning of Thursday, 18 October. On Thursday, 18 October, Coastwatch provided telephone advice initially and then followed that with formal advice, on the afternoon of 18 October, that the vessel was reported to have departed Java for Christmas Island. The date of departure was unclear and, to my mind, remains unclear. Nonetheless, on the basis of the transit times that we have been talking about, which are quite lengthy for these vessels, that was reported in the Theatre intelligence briefing on the morning of 19 October. On the afternoon of 19 October, there was a Coastwatch summary issued that reported that the vessel would be a `possible' arrival at Christmas Island. I am assuming, because I have not actually been able to get some of the original reports now because they have been archived or destroyed as part of the process of dealing with a lot of these reports, but I am sure the originator would be able to speak to the contents of the report in more detail than I can. That report repeated the suggestion that the vessel departed from somewhere in Java-and there were a number of ports along the southern coast of Java that were used by these people smugglers. They ranged from ports in about the centre of Java right to the eastern and western ends, and it really depended where they were heading as to where they were likely to have departed from. That information, as I said, was reported in a written briefing which was posted to the web page on 20 October. That would have been the Saturday morning when it would have been posted to the web page that the vessel was likely to be inbound. I understand that that has been testified to CERTAIN MARITIME INCIDENT CMI 1898 SENATE-Select Thursday, 11 July 2002 before. Then we arrive at 20 October, and I have explained to you how the information came into the ASTJIC and how it was dealt with on 20 October. Senator FAULKNER-In relation to those other Coastwatch contacts before the 20th-so we are talking about 14, 17, 18 and 19 October-was there any intelligence reporting going out of ASTJIC on any of that material? Col. Gallagher-Only the reporting that I have just described to you-the daily intelligence briefing in the morning to the commander, the component commanders and the key staff officers, which was followed by a formal product which summarised the key points that came out of the Theatre intelligence briefing and was also posted to the web pages on the Defence intranet. The only time we ever issued specific immediate intelligence reports was, as I mentioned earlier, when we thought it was of sufficient moment that people needed to be aware of it. Senator FAULKNER-And that was on the 20th? Col. Gallagher-Yes. CHAIR-This is a question I was going to ask earlier, but this looks like an appropriate juncture. Did the advice that you have just referred to go to the People Smuggling Task Force headed by Ms Halton? Col. Gallagher-I do not know. Are you talking about the advice late in the week or the advice on the Saturday morning? CHAIR-All of your advice really, but this particular advice especially. Col. Gallagher-I am not sure. I could not answer that question because they are outside Defence. I know who the recipients of our material are within Defence. I really cannot say whether it was made available to them. CHAIR-Did Air Vice Marshal Titheridge seek any information from you at any point? Col. Gallagher-Not from the ASTJIC but in his position at that time, he would have dealt with Headquarters Australian Theatre, which is my superior headquarters. A question might have come from the headquarters to the ASTJIC but that is speculation and I cannot answer that. CHAIR-On about 6 or 7 October-these are the dates for SIEV4-did you or anyone in your agency get a phone call from Air Vice Marshal Titheridge about an update so that he could brief the minister? Col. Gallagher-I do not know. CHAIR-Could you check that point for us? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1899 Col. Gallagher-Noting that I was not in command at the time- CHAIR-I understand that. Col. Gallagher-and that I have limited my research to the issue of SIEVX in the 36 hours that I have had to prepare for my appearance, I will get an answer to that and try and provide it to you as quickly as possible. Senator FAULKNER-You were only told 36 hours ago that you were going to appear here? Col. Gallagher-It depends how you count the hours but I found out by reading the Defence news summary and seeing in the Canberra Times column that I was going to be appearing. Senator FAULKNER-That would be right. When did the minister advise us- Col. Gallagher-In a formal sense I have to be fair and say I did have a phone call the afternoon before that article appeared saying that I might be appearing. CHAIR-I had a letter from the minister on 8 July suggesting this officer may be one that we should invite. We responded to that shortly afterwards. How did your agency, ASTJIC- Senator FAULKNER-We all learn a lot of things from the Canberra Times, I can assure you. CHAIR-relate to Air Vice Marshal Titheridge? Was he on your mailing list? Col. Gallagher-In the normal course of events ADHQ or certainly the ADF Intelligence Centre, which is part of DIO that lodges within Strategic Command Division, would receive correspondence from us because they are part of DIO. CHAIR-So he would be on your mailing list? Col. Gallagher-Not directly. CHAIR-Do you know how your intelligence information was presented to the task force- or was it presented at all? Col. Gallagher-I honestly cannot speak to that. I do not know how the processes in Canberra were working at that time. I was not in Canberra and I was not in the ASTJIC at the time this was going on so I really cannot answer that question. CHAIR-As you know, Commander Banks received a phone call from Air Vice Marshal Titheridge because a minister was appearing on television and needed a brief. Senator JACINTA COLLINS-Silverstone. CERTAIN MARITIME INCIDENT CMI 1900 SENATE-Select Thursday, 11 July 2002 CHAIR-Silverstone. Could you check your records to see whether your agency received a similar phone call at the time for the purposes of updating with state-of-the-art information in preparation for any briefing of ministers or government spokespersons? Col. Gallagher-I will check that. Mr Chairman, I do have an answer to the question that you asked before regarding the report. My advice is that the original report was drafted by Strategic Command Division. It was cleared through DIO, DSD, DIGO, Headquarters Australian Theatre, Headquarters NORCOM, and the Naval Component Commander at the Australian Theatre. ASTJIC would have been consulted as part of the Headquarters Australian Theatre consultation process. The unclassified chronology provided to the committee was drafted within Rear Admiral Gates's CDF/Secretary task force based on the original, which was drafted by Strategic Command Division. That was then cleared through DIMIA, the Australian Federal Police, Coastwatch, Strategic Command Division, Headquarters Australian Theatre, Naval Component Command, Australian Theatre, and Headquarters Northern Command. CHAIR-I am interested in how that information got to the task force. There was a high- level task force set up in the government coordinating all the people smuggling activities. Do you know how it then made the leap into that task force? Col. Gallagher-That was the answer to the question that was asked earlier about the drafting of Admiral Gates's report. Are you now going back to the original- CHAIR-Yes. If you do not have that information you might let me know. Col. Gallagher-Yes, Senator. Senator FAULKNER-On 17 October, ASTJIC was phoned by Coastwatch? Col. Gallagher-I can't say one way or the other whether we were phoned on the 17th. We did receive a formal Coastwatch summary in the afternoon. I can say that it was normal practice for the analysts in ASTJIC to then discuss it with either Coastwatch or DIMIA in order to try and assign, as I said before, some sort of balance of probability to the potential arrivals. Senator FAULKNER-I would appreciate it if you could take these matters on notice: if Coastwatch telephoned ASTJIC on the 17th, when did that occur? Also, was there any telephonic contact that you are aware of from Coastwatch on the 18th? Col. Gallagher-Yes. As I have mentioned already, they phoned through the information that the vessel was reported to have departed from somewhere in Java. That was followed by formal reporting later that day. Senator FAULKNER-Do you know what time that phone call was? Col. Gallagher-No, I don't. I would have to check to try and find out what time that phone call was. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1901 Senator JACINTA COLLINS-Can you explain to me the footnote relating to that phone conversation in the report? Col. Gallagher-I am sorry, I cannot. I did not draft this report. Having looked at some other material, I think that there is great uncertainty about when that vessel departed anyway. I certainly cannot explain that footnote. Senator FAULKNER-Who is the secretary of the task force? Col. Gallagher-The task force that was set up, which was headed by Admiral Gates, was called the CDF/Secretary task force-meaning the secretary of the department. It was set up jointly by the CDF and the secretary, I understand. Senator FAULKNER-So you do not actually have the original of that operational summary report that the footnote relates to? Col. Gallagher-I would have to check but, in this case, it would be easier to ask the originator. Senator FAULKNER-What about information that is coming from the defence and naval attaches in Jakarta? Does that material come through to your intelligence centre? Col. Gallagher-Yes. Senator FAULKNER-How does that work? Col. Gallagher-It comes in usually via a DFAT cable, which we would receive electronically, soon after it was initiated at the other end. Occasionally, we would receive phone calls but more often than not we would receive advice regarding reporting from Jakarta via either Strategic Command Division or the ADF Intelligence Centre which lodges in with Strategic Command Division. Senator FAULKNER-Are you able to explain what the role of the defence attache and the naval attache was in Jakarta in relation to Operation Relex? Col. Gallagher-No. I am not in a position to explain what their roles were, principally, because I do not know. Senator FAULKNER-That is another reason why it would be helpful to have Admiral Gates assist the committee. To what extent is it your understanding that Maritime Command is in the loop with what is occurring in ASTJIC? You report to Maritime Command, do you? Col. Gallagher-We report to all of the commands within the Theatre as a matter of course. Where a command is involved in a particular operation and we have the role of being the principal source of intelligence to support that operation-source in the sense that we are the place where a lot of this material comes together-we report formally by message. We usually CERTAIN MARITIME INCIDENT CMI 1902 SENATE-Select Thursday, 11 July 2002 advise people by telephone if an issue is of sufficient import but, certainly, formal messages are sent to the component commanders and other elements involved in the operation. Senator FAULKNER-Are you aware of any defence intelligence reporting out of Indonesia during the period of Operation Relex apart from what is coming from the attaches at the embassy? Col. Gallagher-No, I am not. Senator FAULKNER-I see. Are you aware of any of the disruption or dismantling activities in Indonesia in relation to people smuggling? Col. Gallagher-No, I am not; I am genuinely not aware. I was aware that they were being conducted but I am unaware of how they were being conducted and who they were being conducted by. Senator FAULKNER-Who should we ask in Defence about whether they have any awareness about it? Col. Gallagher-I think that is a question that needs to be directed to another agency, such as the Australian Federal Police. I do not think that that is something that Defence was involved in-not to my knowledge, anyway. Senator FAULKNER-We will ask them. Have you satisfied yourself in relation to the intelligence reporting about SIEVX-that that reporting was dealt with as seriously and in the same manner as other intelligence reporting in relation to other vessels? Col. Gallagher-Yes, I am-absolutely. I have no doubt in my mind that this was being planned for and treated as any other potential SIEV. Senator FAULKNER-How have you been able to satisfy yourself of that? Col. Gallagher-In the case of the ASTJIC, by looking at the amount of work that was done in relation to the reporting of Abu Qussey's intention to take one or two vessels to Australia around that time. That had been a consistent theme of reporting since, as far as I could check back, about August, I think-it might even have been July-when reports appeared of Abu Qussey intending to bring groups of people to Australia and in particular to Christmas Island. Senator FAULKNER-A moment ago you said that you were aware of the disruption operation but did not have any detail, which is fair enough, and that you felt it was better directed to other agencies. I just wondered whether you could share with us how you became aware of that. I am not going to go to the detail; it is merely your awareness of those activities that I am interested in. Col. Gallagher-I actually cannot recall how I found out about it, but it was not in a formal sense. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1903 Senator FAULKNER-You are in front me and I am still trying to find out about it. Were there any DSD inputs in relation to intelligence on the SIEVX issue? Col. Gallagher-I could not tell you how many there were in a quantitative sense but I think I can recall that there might have been some reporting much earlier in the process-an August sort of time frame-but I cannot speak to the detail of that and I am unaware of any reporting in the period that you appear to be focusing on in October. Senator FAULKNER-Would you take on notice a question in relation to DSD input or reporting on the SIEVX? Col. Gallagher-I can, but I can also advise you that their reporting was also going to DIMIA. What I am saying is that my organisation was not receiving it for the direct purposes of producing the sorts of detailed intelligence summaries that were being prepared by DIMIA. Senator FAULKNER-Yes, but it remains a defence agency, doesn't it? Col. Gallagher-Yes. I will try to get an answer to the question. Senator FAULKNER-Which is why I am asking you about it. I appreciate that you may not have been aware of it directly. Are you aware of the People Smuggling Task Force notes of 18 October? Col. Gallagher-No, I am not aware of them. In fact, I have not seen the actual notes. I have seen little bits that have appeared in people's previous testimonies, but I have not actually seen any of the notes. Senator FAULKNER-Fair enough. They talk about intelligence regarding two boats with a possible 600 unauthorised arrivals expected at Christmas Island. This is the People Smuggling Task Force notes of 18 October, which say: Some risk of vessels in poor condition and rescue at sea. No confirmed sightings by Coastwatch, but multisource information with high confidence level. Can you explain to us what is meant by `multisource information with high confidence level'? Col. Gallagher-I cannot. Senator FAULKNER-Are you able to assist us with the suggestion in this report that there were some vessels `in poor condition' and explain what `rescue at sea' would be referring to? Col. Gallagher-No, I cannot, but I can make the observation that a number of these vessels-even the ones that arrived and were interdicted-were unseaworthy, so it was not an uncommon sort of observation to make about a SIEV. Senator FAULKNER-Was that same information that is reported in the People Smuggling Task Force notes given to Defence on or around 18 October? CERTAIN MARITIME INCIDENT CMI 1904 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-I am not sure how it went to Defence. We received Coastwatch reporting that afternoon which talked about the departure of a vessel. I do not have the details of what that report actually said about the vessel. You would have to put that question to Coastwatch. Senator FAULKNER-The notes state: Some risk of vessels in poor condition and rescue at sea ... multisource information with high confidence level. Am I being unreasonable in thinking that this would be the sort of message that would trigger concern about the vessel having potentially departed Indonesia? It seems quite logical really. Col. Gallagher-I cannot speak to that matter. I have not seen the notes you are referring to and I never attended any of those meetings. The role of intelligence within the theatre at this stage was to provide people with advice about when and from where we thought vessels might or might not depart, with a view to informing their decisions about surveillance. We are heading into areas that are outside my purview. Senator FAULKNER-Do you know when, if at all, your intelligence centre was given an idea about the number of people who had boarded the Abu Qussey vessel? Col. Gallagher-I am not sure. I will have to get back to you on that. As I said, I have not been able to read a lot of the original source reports. I have been going from our logs. Senator FAULKNER-Do you know when Defence was advised that the vessel was reportedly small and overcrowded? Col. Gallagher-I certainly know that my organisation was advised by Coastwatch around a quarter to 10-I think Admiral Bonser recorded it as 9.50-on 20 October. That is the first indication I can definitely put my finger on. But, as I said, I will undertake to find out exactly when the joint intelligence centre first heard about the number of people who might have been involved in travelling on the vessel. Senator FAULKNER-Admiral Bonser has told us that Coastwatch was aware that about 400 passengers had embarked on the vessel and that some people had either not got on the vessel or had got off the vessel. Do you know whether Defence was made aware of that information? Col. Gallagher-About the number of people who may have got on? Senator FAULKNER-The number in total and the fact that some had either not got on it or had got off it. Col. Gallagher-After the fact. Senator FAULKNER-You mean after the vessel sank? Col. Gallagher-After the fact, yes. I am unaware of any reporting into or within Defence that would indicate what you have just described-that people did not want to get on, that some CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1905 got off and that some got off part way along the journey. That all seems to have come out after the event. In large part, it seems to be reporting based on the survivors' recollections. Senator FAULKNER-Given that we now know that there is a substantial amount of intelligence information coming mainly from DIMIA and AFP sources-and, to a lesser extent, I suppose, Coastwatch-do you think some might jump to the conclusion that the intelligence about SIEVX was not being treated seriously? Col. Gallagher-Some people might jump to that conclusion, but it is my opinion, based on the quantity of reporting about this vessel in comparison to the quantity of reporting in relation to other vessels, that it was being treated as a serious SIEV. However, I really cannot offer you more than that judgment. Senator FAULKNER-When did your intelligence centre become aware of the numbering of the SIEVs? Do you know how the numbering of the SIEVs works? Col. Gallagher-Yes. The way it came about, in my recollection, is that the SIEVs were numbered successively from one on the basis of their apprehension by the Navy. It was not a number that was provided by anybody else. It was an after-the-fact numbering of an apprehension. Senator JACINTA COLLINS-Except on this occasion, when the People Smuggling Task Force, for its own yet-unknown purposes, decided to attribute a number. Col. Gallagher-I am not sure about the internal deliberations of the task force. My own assessment is that, because it did not arrive and was never apprehended-it did not appear-it was not given a number. Senator JACINTA COLLINS-Can you just explain to me one further issue about the notes from the People Smuggling Task Force that Senator Faulkner was referring to. One of the points he referred to was the comment that there were no confirmed sightings by Coastwatch, but there was `multisource information with high confidence level.' Why would Defence not be relevant to sightings since, by that stage, Defence was looking after surveillance of all of the avenue approaches in Christmas Island? Col. Gallagher-I cannot answer that question. It relates to operational matters. It is really a surveillance issue. Senator JACINTA COLLINS-This comment that there had been no sightings from Coastwatch is really only addressing part of the picture because, as we understand it, it was not Coastwatch who was surveilling that zone at that stage. Col. Gallagher-That may have been the case but, as I said, I was not there, I have not seen the notes and it is really an operational issue. Senator JACINTA COLLINS-Can you tell us the basis of the intelligence for the reported departures on 18 October and 19 October? CERTAIN MARITIME INCIDENT CMI 1906 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-No, I cannot. You would have to speak to the originator of those summaries. Senator JACINTA COLLINS-What I am trying to understand is why it was only regarded as corroborated on 22 October when it appears that the advice received from the AFP on 20 October could equally have been regarded as corroboration. Col. Gallagher-I cannot speak about what other organisations did with the information, but I can say that even though the point of departure was different, the ASTJIC took that report from the AFP via Coastwatch on the morning of the 20th to be corroboration of the fact that a vessel had left. The issue was that there was doubt about where it had left from. For example, the earlier reports were talking about central Java; the AFP report on the day talked about western Java; in fact, the survivors say that it departed from eastern Sumatra. So there was significant doubt about where this vessel was actually leaving from. I can say in the case of my own organisation that we took that report of a departure to be confirmation that a departure had occurred. Senator JACINTA COLLINS-On 20 October? Col. Gallagher-Yes, and that is why we issued an intelligence report-because it was a weekend, because the way to get the attention of people out of normal working hours is to send them an immediate message, amongst other things, such as phone calls and so on to the duty staff. Senator JACINTA COLLINS-Again, I understand the difficulty here because you did not collate this document: can you apprise us of the basis for the NORCOM assessment that the boat had probably returned back to the Java coast? Is there any intelligence that you are aware of to give weight to that assessment? Col. Gallagher-No. I cannot explain how NORCOM developed that report. Senator JACINTA COLLINS-It was not an assessment based on advice from your agency? Col. Gallagher-No, not that I am aware of. Senator JACINTA COLLINS-Were you aware that they had reached that assessment? Col. Gallagher-Only in that this vessel was reported at various stages to have left and then not left, to have left and then returned over a number of days. So I would assume that any judgment that they were making would have been based on their consideration of what they had seen in the past and perhaps what the weather conditions were at the time. But I cannot speak with any authority on the internal processes of Headquarters Northern Command. Senator FAULKNER-Do you know how much of the intelligence sources were actually on the ground in Indonesia-the primary intelligence sources? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1907 Col. Gallagher-No, I do not. Senator FAULKNER-Are you satisfied that the primary intelligence material, from what you know-and I appreciate that you were not there at the time; I think you are in a difficult position at this committee today, so I do understand that-was assessed sufficiently? Col. Gallagher-I cannot answer that question because I have not seen the primary material. That is a sort of professional judgment question that you could only answer by looking at all the material in its totality. From my perspective, that is clearly impractical. Senator FAULKNER-Do you think the intelligence material in relation to SIEVX was given the appropriate level of priority? Col. Gallagher-I cannot speak for other agencies, but certainly within my own agency it was being treated just like any other SIEV, of which at the time there were a number expected to materialise during October. Senator JACINTA COLLINS-On 22 October, the People Smuggling Task Force reported regarding their attribution of SIEV8-and we do not need to go down that path. It was stated: `Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives.' Are you aware of any of that intelligence? Col. Gallagher-No. As I said, I prepared myself for the issue of SIEVX. I would have to speak to the originators of these- Senator JACINTA COLLINS-This is SIEVX-SIEV8/SIEVX. The minutes say SIEV8 but that is their misappropriation of the title. But their comments about this boat-they have indicated to us their attribution of SIEV8 is referring to SIEVX at this stage, that has been confirmed-are that it is `not spotted, missing, grossly overloaded, no jetsam spotted, no reports from relatives'. This is 22 October. Are you aware of any of that intelligence? Col. Gallagher-No, I am not, in a personal sense. I was not working there at the time. My predecessor and I were not members of the People Smuggling Task Force, never saw the minutes or the notes, or any product out of that committee. I am really not in a position to comment. Again, we are moving out of the intelligence area into operational areas. The fact that people are talking about something that has not been seen and so on, indicates that surveillance was being conducted which is an operational matter outside my purview. Senator FAULKNER-I think the committee appreciates, Colonel, that you were not in the intelligence centre at the time these events took place. I think the committee appreciates that you only found out from reading the Canberra Times that you would be asked to give evidence here today. I certainly appreciate, and I am sure my colleagues do, that there are very many questions that you have been asked that you are not in a position to answer. I am not critical of that at all. That is understood, given the circumstances. It is for those reasons, Mr Chairman, that I am so keen to see Admiral Gates appear before the committee as he has been responsible for preparing the report on the sinking of SIEVX. We know that Colonel Gallagher's intelligence centre has just provided some primary source CERTAIN MARITIME INCIDENT CMI 1908 SENATE-Select Thursday, 11 July 2002 documents to go to that report, and I am quite sure that Admiral Gates has a much broader understanding of what occurred. And of course, even though I know that Colonel Gallagher has tried to be very helpful-and I appreciate it, I know other committee members would-there are so many issue for us to canvass here that it cannot properly be directed to Colonel Gallagher. It needs to be directed to Admiral Gates or others. I hope we will be able to press the minister on this. I do not understand why the minister suggested that Colonel Gallagher should come before us in this circumstance. The person we need to hear from is Admiral Gates who prepared the report. I would be very surprised if Admiral Gates would not want to come along here and clear up a range of these issues. I think that would be in the interests of Defence. It would be in the interests of this committee, and I only hope that Senator Hill will see some reason in relation to these matters. CHAIR-I understand your point, Senator Faulkner, and I do appreciate that you have made the observation about Colonel Gallagher. Senator FAULKNER-There are so many questions, even about matters relating to the intelligence reports that go into Defence, that properly Colonel Gallagher cannot answer. He has assisted us with those matters that he is able to assist us with, but he was not there at the time. Beyond his own joint intelligence centre, he would not be expected to be able to answer a range of questions, and we do require Admiral Gates or someone else-Admiral Gates is the obvious person given he has prepared a report on these matters-to come before us. CHAIR-I do understand your point and I do acknowledge that you, like I, have formed the conclusion that Colonel Patrick Gallagher has been forthright and direct with the committee in answering all questions, and we appreciate that. Regarding the other observations you make, they are matters that we will have to deal with in our private meeting. Senator FAULKNER-I have a range of questions that it is simply not fair to put to Colonel Gallagher. I know how he will respond and I understand how he will respond. I am not critical of that at all. These are matters outside his responsibility and control, and as such I must say I feel uncomfortable even putting them to him. CHAIR-Do I take it therefore you are terminating your questioning at this point? Senator FAULKNER-I have many questions I would like to ask in relation to the issues that go to intelligence reporting in relation to SIEVX, but I do not think that Colonel Gallagher can assist us on this. I stress that is not a criticism of the colonel. CHAIR-I have acknowledged that. Are there any further questions? Senator JACINTA COLLINS-I concur with Senator Faulkner. Senator FAULKNER-You really have to question the motivation of Senator Hill in asking this witness to come along in these circumstances. But I thank him very sincerely for what he has been able to provide to us. Senator BRANDIS-I know that is a nice innuendo, Senator Faulkner- CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1909 Senator FAULKNER-It is no innuendo; it is a deliberate slur. Senator BRANDIS-In his letter of 8 July Senator Hill has explained the reason that he proffered Colonel Gallagher- Senator FAULKNER-It is not good enough. It is a cover-up. Senator BRANDIS-You cannot question his motivation when he has explained it. Senator FAULKNER-I do question his motivation. It may be in his interest but it is certainly not in this committee's interest-nor, might I say, is it in Defence's interest-to not allow Admiral Gates, who can assist us on all these matters, to clear up these issues that remain in the public mind. I would have thought the sensible thing was to allow that to proceed. You really do have to question why Senator Hill is blocking Rear Admiral Gates's attendance at this committee. Senator BRANDIS-That is rich coming from you, Senator Faulkner, who made up your mind about the conclusions of this inquiry before the first hearing day. CHAIR-Now we are getting into debate that is properly for the committee or for our report. I have a further question to Senator Gallagher, however. On SIEV4, there was a report that Commander Banks became aware of-I have demoted you; I apologise- Col. Gallagher-I took it as an elevation. Senator FAULKNER-No-one else would; no-one on this side of the table. CHAIR-Colonel, on the SIEV4 issue, we are aware that Commander Banks had reported to him to look out for people wearing life jackets on SIEV4. Would that have been a report that came from your agency? Col. Gallagher-I do not know. I would have to find out. CHAIR-Could you find that out for us? Col. Gallagher-Yes, I will. It has been pointed out to me that I need to clarify something I said before in response to a question. CHAIR-In response to a question from whom? Col. Gallagher-I think it might have been from Senator Collins. It was about the date of the confirmed departure. Senator JACINTA COLLINS-About when you formed the view you had had confirmation, yes. CERTAIN MARITIME INCIDENT CMI 1910 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-I advised you of the ASTJIC view on that, which we reported at the time, but I need to make it clear that- Senator JACINTA COLLINS-That was ASTJIC's view and not NORCOM's view. Col. Gallagher-That is right. There were numerous reports regarding a departure at the time concerning this vessel, and it was not until 22 October that Defence agreed that it was a confirmed departure. Senator JACINTA COLLINS-But ASTJIC did on the 20th. Col. Gallagher-We accepted it as being a departure, given that we had had a chain of reports about it. We reported it, as I have mentioned a number of times, by formal intelligence reporting on the Saturday morning after we had been advised by Coastwatch, who in turn had been advised by the Federal Police of the departure. Senator JACINTA COLLINS-When you say you reported it, what was the report? Col. Gallagher-It is not in here because it was a classified report, and I cannot speak to the contents of it in detail because the contents originated from other agencies. You would need to speak to the other agencies about exactly what information was passed from the AFP to Coastwatch and then on to us, NORCOM and other Defence addressees on that day. Senator JACINTA COLLINS-But what you are telling me, though, is that on Saturday morning, on the basis of receiving that report, you sent out a classified notice that as far as ASTJIC was concerned there was a confirmed departure? Col. Gallagher-I would have to check the wording. It would be our assessment. It would not have been treated as confirmed. I do not believe that word would have been used in it. It would have been along the lines of, `It is assessed that a vessel has departed from a certain location at a certain time,' which was based on AFP information. Senator JACINTA COLLINS-Going back to the earlier conversation you had with Senator Faulkner about time lags, why would it then take a further two days for Defence to accept confirmation? Col. Gallagher-I honestly cannot comment on that. It is outside my area of responsibility. Those sorts of decisions would have been taken in Canberra. I was not here. I do not like saying that, but the fact of the matter is I was not in Canberra at the time. I was not a member of the- Senator FAULKNER-It is a fair enough thing for you to say. We appreciate that. Senator JACINTA COLLINS-From your position we understand that. From the committee's point of view though those two days, you will appreciate, were absolutely critical to 400 lives. Col. Gallagher-Yes. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1911 Senator FAULKNER-Would copies of the actual outwards reporting from the Australian Theatre Joint Intelligence Centre be able to be made available to the committee? Col. Gallagher-I would have to speak with the originators of the material that was then used in those reports. It essentially leads me back to what I was saying earlier, that the bulk of the intelligence we were receiving was coming from DIMIA and Coastwatch. You would really need to go back to them. Senator JACINTA COLLINS-The issue is not necessarily the detail of the intelligence that contributed to your reaching that assessment but, rather, that that assessment had been reached. We already have in part the AFP material, because Rear Admiral Bonser has provided that to us. We can accept your comment that there is other material that might be classified that cannot be released that came from you from DIMIA or wherever else. What the committee needs to see-to the extent you need to, after talking to DIMIA, remove the components that cannot be declassified-is the detail of the assessment that ASTJIC reached at that time, not necessarily the classified components of that assessment. Col. Gallagher-Can we take that on notice? I will have to go up through the chain of command to the minister. Senator JACINTA COLLINS-Yes. Senator FAULKNER-Does that go to the question on notice that I asked relating to the material being reported out of the Australian Theatre Joint Intelligence Centre? In relation to SIEVX, would you be able to provide copies of that material for the benefit of the committee? Col. Gallagher-I will have to take that on notice. A lot of our material would have been sourced from other people's material. The chain of reporting would be a quite significant quantity of documents. I will undertake to seek release of certainly the intelligence report that was issued by the ASTJIC on that day. You are already aware of a similar report contained within the Northern Command Intelligence Summary issued that day as well. In relation to Rear Admiral Gates's inquiry, there appears to be a misconception that he conducted an investigation into all intelligence received within Australia concerning SIEVX. There has been no such investigation by Defence. To assist the committee in its deliberations, Rear Admiral Gates conducted a review of all intelligence received by Defence, prepared a chronology and provided a declassified version of that chronology, in consultation with the agencies concerned, to the committee. Senator FAULKNER-Yes, that was to assist the committee. But the point that I am making-which is not a point for you, Colonel Gallagher-is that it would assist the committee a great deal more if Admiral Gates could come and give evidence here and clear up some of these issues and answer some of the questions that the committee is asking. That is a matter that appears to me to be absolutely straightforward. I am not aware of any other Defence witness who has been blocked from attending this committee, Mr Chairman. You really do have to ask the question: why is Senator Hill, the Minister for Defence, so keen to stop Admiral Gates attending? What does Senator Hill have to hide? CERTAIN MARITIME INCIDENT CMI 1912 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-With regard to the question that I undertook to investigate regarding the release of classified material originated by the ASTJIC, I am sorry that I cannot help you any further. Defence has already sought declassification of source material from DIMIA and the Federal Police, and those agencies have advised that it cannot be declassified. Senator JACINTA COLLINS-Yes. But my point was not that I wanted to see the source material but that I would like to see the assessment. I am quite happy if I get a document that is three-quarters blacked out and you cannot see what led ASTJIC to get to that assessment, but I would like to see the detail of what the assessment was. Col. Gallagher-There are two issues here. That particular message, as I mentioned earlier in my testimony, would have been a very short factual repetition, possibly with a judgement attached to it, of what had been reported by the Australian Federal Police to Coastwatch, then to us and to NORCOM. That would be, I would think, the principal basis of their intelligence summary from later that day. In terms of how the judgment was arrived at and what the basis of the judgment was, I cannot answer that. It is my understanding that the person who was on duty at the time is no longer posted to my organisation. I would have to find out what was in their mind. I cannot testify as to what might have been in somebody's mind and how they reached a conclusion. Senator JACINTA COLLINS-With respect, there is a fairly fundamental issue for Defence here, which is that you have told us this morning that ASTJIC essentially assessed as confirmed the departure on the 20th. We have had evidence previously-and this document also refers to this-as to the confirmation being reached on the 22nd. These were two very critical days in the lives of 400 people. I cannot understand why, once you remove any classified material, we cannot see the wording of that assessment as reached by ASTJIC. Col. Gallagher-I accept absolutely what you are saying about the nature of the tragedy. However, I can only reiterate what I have said before, that there was a series of conflicting, contradictory, incomplete, imprecise, circular reports about the supposed or actual departure of this vessel. There were at least, to my knowledge, three different locations it was reported as leaving from, over several different days. I was simply observing before that we issued an intelligence report on the morning of 20 October which was based on the duty watch officer or analyst's judgment that it was a corroboration of earlier reporting from the 18th and 19th which came from Coastwatch, and presumably DIMA before that, that a vessel had left somewhere. But you will note that initially the vessel was reported as having departed Java, as I mentioned before-and my recollection is somewhere in central Java. Then there was the report from the Australian Federal Police on the Saturday morning which said it left the west coast of Java. Then our understanding of the reality, well after the fact, is that it actually left from eastern Sumatra. I cannot speak to what happened after that intelligence report was issued. Senator BRANDIS-And, Colonel Gallagher, of course, because of the conflict of reporting as to the likely port of departure, that would have produced different conclusions on the question of whether or not, at a given point in time, the vessel was overdue or had not reached a point which it would have been expected to reach on that date. Col. Gallagher-Yes, that is correct. And further to that, depending on the distances that we are talking about in a lateral sense-east to west-it would have a significant impact on CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1913 decisions about where to put surveillance assets. But, again, I go back to my original point: that is really an operational decision. Senator BRANDIS-I understand that. But in terms of the intelligence reporting, we can say two things with reasonable certainty, can't we. First of all, there was never a report that the vessel was in distress. Col. Gallagher-Certainly I am personally unaware, after having looked through all of the reporting available to me, that there was any form of distress call. There is absolutely no evidence to suggest that there was ever a distress call of any type. Senator BRANDIS-And, secondly, there was never any conclusive signal or report to suggest at any material time the vessel was overdue. Col. Gallagher-In a formal sense, no. There were only people's judgments or assessments that the vessel might be overdue. Senator BRANDIS-Might be, depending on where its point of departure was, which was itself a matter of complete uncertainty. Col. Gallagher-Yes, that is correct. Senator FAULKNER-I have a couple more questions, Chair, then I know we want to go to a lunch break. As I understand it, Colonel, you assumed your position as Commander, Australian Theatre Joint Intelligence Centre, in January this year? Col. Gallagher-That is correct. Senator FAULKNER-What was your role in the second half of last year, when the events that we are talking about occurred? Col. Gallagher-I was the senior intelligence staff officer at Headquarters Australian Theatre, responsible for coordinating the provision of intelligence support to all of the operations we were talking about before. In that capacity, I was not part of the intelligence production process; I was part of a coordination and planning process. Senator FAULKNER-Did you have any role in relation to Operation Relex at all? Col. Gallagher-Yes. I was responsible for drafting the intelligence support plan that set up the intelligence support arrangements, which at that time would have placed ASTJIC as the paramount Theatre intelligence production agency. That intelligence support plan was then adjusted as it became clear that the tempo of operations was becoming too much for ASTJIC and other parts of the system, but particularly for ASTJIC, and the Commander Australian Theatre agreed to transfer that responsibility to Headquarters Northern Command. Senator FAULKNER-Have you had any other role apart from drawing up that plan in its original form? CERTAIN MARITIME INCIDENT CMI 1914 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-No; simply as an adviser. Senator FAULKNER-Sure. Are you aware that you are the only witness who has come before this committee that has not had any direct or even indirect role contemporaneously in the matters which this committee's terms of reference go to? Col. Gallagher-I am sorry, could you repeat that? Senator FAULKNER-The current position that you hold you did not hold at the time of the incidents which this committee is investigating? Col. Gallagher-Yes, that is true-although Admiral Bonser has now moved on as well, as has Admiral Ritchie. Senator FAULKNER-Yes, I am aware of that, and so have a whole range of others, I can assure you. They have moved on from positions they had which did have a direct role; you have moved into a position that may have had a direct role if you had been holding that position at the time. Do you understand the difference? Col. Gallagher-Yes, absolutely. Senator FAULKNER-Don't worry, Colonel-about every second officer of the Department of Prime Minister and Cabinet has been moved out from the role that they had, which means that they are not able to be questioned at Senate estimates committee about their then role. Senator BRANDIS-You will have to excuse Senator Faulkner, Colonel Gallagher, he is an inveterate conspiracy theorist. Senator FAULKNER-How is your theory about J.F. Kennedy going at the moment? Have you solved it yet? Senator BRANDIS-We are working on it. Senator FAULKNER-I know you are. CHAIR-The question is: were you on the grassy knoll or not? Senator FAULKNER-Soon it will be either your opponents in the Liberal Party or the Labor Party who were on the grassy knoll, I am quite sure. Col. Gallagher-I can state with some degree of certitude that I was not on the grassy knoll! Senator FAULKNER-Not even Senator Brandis and Senator Mason would make that accusation. You found out you were coming before this committee, what, 36 hours ago? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1915 Col. Gallagher-I got an informal phone call on Tuesday and saw it in the Canberra Times on Wednesday. Senator FAULKNER-What did you do then? Did you hurriedly start to prepare yourself with a document to refresh- Col. Gallagher-Sorry, late Monday evening I was given informal advice, I saw it in the paper on Tuesday, then I got some emails about it, and I came down here yesterday to start reading myself into the issues. Senator FAULKNER-Did you have much of a background before yesterday-before you started to prepare all this? Col. Gallagher-Not in terms of the precise detail. Obviously, I was working in Headquarters Australian Theatre; I knew the overall ebb and flow of activity to do with the SIEVs. At the time, the matter of SIEVX had developed into an operational surveillance issue rather than an intelligence issue, if you understand- Senator FAULKNER-So which day did you start reading the documentation and preparing? Was it yesterday? Col. Gallagher-No, I was reading material in my own organisation on Tuesday. Senator FAULKNER-Two days. I think you have done exceptionally well for someone with that limited amount of preparation. But I do make the point again, Mr Chairman: how preposterous that the minister would place this officer in this situation. What a joke! Senator BRANDIS-Are you satisfied with your evidence, Colonel Gallagher? Col. Gallagher-I am satisfied that I have provided evidence to the best of my knowledge and understanding of the circumstances that existed at the time. I can say that I did have an opportunity to review all of the reporting that was available within my own organisation-it took some hours, but I did it. Senator BRANDIS-About how many hours did it take? Col. Gallagher-I started after I was formally advised that I was coming here, which was about 10 o'clock on Tuesday morning. Senator BRANDIS-How long would it take? Col. Gallagher-I think I arrived home at about 8 o'clock that night. Senator BRANDIS-So you started at 10 in the morning and finished at eight at night-one long day's work, in effect? CERTAIN MARITIME INCIDENT CMI 1916 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-Yes, but I have to be fair and say that I was only looking for material relating to SIEVX; I was not looking at all of the Op Relex material. To look at all of the Op Relex material would take several weeks, if not months, and then to be able to retain some of it would be- Senator BRANDIS-So you looked at all the material you wanted to look at, is that right? Col. Gallagher-Yes, it is, and then I- Senator BRANDIS-And you comprehended it? Col. Gallagher-Yes. Senator BRANDIS-To the best of your satisfaction? Col. Gallagher-Yes. Senator BRANDIS-So you do not accept the suggestion that has been put in a way that slightly ridicules you, Colonel- Senator JACINTA COLLINS-No, I think the minister is the one who has been ridiculed, Senator Brandis. Senator BRANDIS-that you were underprepared for this committee? You do not accept that, do you? You have had sufficient opportunity properly to prepare yourself for this hearing, haven't you? Col. Gallagher-In terms of what was available within my own organisation, yes, I was able to see it. Senator BRANDIS-The suggestion that you have been prejudiced by having 1½ days notice is a false suggestion, isn't it, Colonel Gallagher, if you have been able sufficiently to prepare yourself in the time available to you? Col. Gallagher-Yes. I would say that I had an adequate time to review the material that I was required to review and I had an adequate time yesterday to read previous testimony. Senator FAULKNER-You were shoehorned in here, Colonel, and that is not your fault or responsibility, and everyone knows it. Let's go to lunch. CHAIR-Let us go to lunch when we have closed the meeting, which is not just now. Senator JACINTA COLLINS-Can I ask Colonel Gallagher who rang him informally? Col. Gallagher-Wing Commander Keith Jurd, who is part of the defence committee-the task force. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1917 Senator JACINTA COLLINS-The task force. Thank you. CHAIR-For the record, I had a discussion with Senator Hill on Monday morning my time, in Perth, in which the suggestion was made that you and the other Defence witness might come. So it could not have been before then. I have one final question which you may not be in a position to answer. If you are unable to answer it, you can take it on notice, if you do not mind. With respect to the earlier SIEVs, has the Australian Theatre Joint Intelligence Centre at any time advised commanders of any vessels intercepting SIEVs that children may be thrown overboard? Col. Gallagher-I do not know the answer to that. I would have to take it on notice and get an answer. That is now two questions relating to SIEV4: one about life jackets and one about- CHAIR-Yes, one about life jackets. Col. Gallagher-I will try and get an answer and provide it to you immediately after lunch. I have some answers here to questions that you have asked previously, or that other members have asked. If you wish me to, I can- CHAIR-We should clear it up before we go to lunch. Col. Gallagher-Shall we deal with it now? CHAIR-Yes. Col. Gallagher-On the question of how many people boarded the Abu Qussey vessel, reports until 22 October 2001 said that 200 to 250 people were expected on the vessel and that two boats were being prepared. On 22 October there was the first report that up to 400 personnel were aboard the vessel and that it was overcrowded. Senator FAULKNER-Who is preparing these answers, Colonel? Col. Gallagher-I have to say that I have some concerns about that, because my recollection is that the report on the morning of 20 October mentioned a large number of people. CHAIR-Do you want to review this material and provide these answers after lunch, Colonel? Would that be preferable? Col. Gallagher-I prefer to go away and make some phone calls, if that is all right with you, Mr Chairman. CHAIR-That is all right with me. Senator FAULKNER-Again, I stress this is not a criticism of this witness. The point is that we have a situation where the minister has asked a witness to come here who is unable to answer these sorts of questions because he was not involved in these events directly and has only had a very short opportunity to refer to the written record. Of course, questions taken on CERTAIN MARITIME INCIDENT CMI 1918 SENATE-Select Thursday, 11 July 2002 notice ought to be dealt with as thoroughly and as properly as they can be. Defence has an excellent record in this regard and I would be the first to acknowledge it. All of these sorts of questions have been treated seriously. I know that those ones that have been taken on notice will be. My criticism here goes to the extraordinary role of the minister. Senator BRANDIS-You would almost think that we had not heard the witness say-as he said a few minutes ago-that he has had all the time he needs to prepare. Senator FAULKNER-And you know what a joke that is. Senator BRANDIS-Are you accusing Colonel Gallagher of lying? Senator FAULKNER-No, I am accusing the minister of deliberately shoehorning a witness in here who cannot assist the committee in relation to a whole range of matters. You know it is not a criticism of the witness. Every Defence witness who has come before this committee, as far as I am concerned, has treated their responsibilities seriously. I made the same point about questions on notice. The minister ought to allow the appropriate witness-Rear Admiral Gates-to come before us, given that Rear Admiral Gates has been tasked to prepare information and background for the committee in relation to SIEVX-I know it, you know it and every reasonable person knows it. To shoehorn this colonel in in relation to these matters is just an outrage as far as the minister is concerned. Senator BRANDIS-Colonel Gallagher has given helpful evidence, which he has had, as he has said himself, sufficient time to prepare for. Senator FAULKNER-Where he has been able to. CHAIR-I think we are in the wrap-up stage, because we are now beginning to debate, but I understand Senator Collins has a question. Senator JACINTA COLLINS-Colonel, I have some concern, not about the content, but about the manner in which you have needed to respond to some issues today-for instance, that issue a moment ago when we were talking about Senator Faulkner's question on when ASTJIC first got advice about the overcrowded nature of SIEVX. Can I just clarify this: for your purposes, where is the information that you have been provided that you have simply just read to us coming from? Col. Gallagher-It is coming from task force members who are contacting the Department of Defence and seeking advice. CHAIR-Can I amend my question about any advice about children being thrown overboard to include Brigadier Silverstone at NORCOM and Air Vice Marshal Titheridge-whether the intelligence agency that you head provided any information to those officers or their staff to the nature that children may or to watch for children being et cetera, thrown overboard. Col. Gallagher-Yes. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1919 CHAIR-Do you have any concluding remarks to make, Colonel? Col. Gallagher-I have an answer for a question that was put to me before regarding phone calls- CHAIR-Are you happy to proceed with this answer now? Col. Gallagher-I am-I can make it very snappy. CHAIR-Please proceed. Col. Gallagher-Concerning the arrangement made for Brigadier Silverstone to ring Air Vice Marshal Titheridge on the morning of 7 October 2001, this arrangement was made in a phone call between Air Vice Marshal Titheridge and Rear Admiral Ritchie, then Commander Australian Theatre. To our knowledge, this arrangement was made totally along the command chain and there is no suggestion in Air Vice Marshal Titheridge's phone records that he was in contact with DIO or ASTJIC in the lead-up to his conversations on 7 October. There are a large number of people in DIO and ASTJIC who would need to be contacted to answer this question absolutely and incontrovertibly. CHAIR-But Air Vice Marshal Titheridge was not in the formal chain of command overseeing this exercise, was he? Col. Gallagher-I really cannot talk about the command and control arrangements relating to this. CHAIR-Okay. I think that is a matter of record in any case-I think evidence has been given to that point. You are going to come back to us after lunch with some additional information. Senator FAULKNER-Those answers could be providing in writing, if the witness would prefer. Col. Gallagher-Where I can, I would prefer if possible to give them this afternoon. CHAIR-I think that is desirable too, because that allows for follow-up questions if there are any issues arising. Thank you. Proceedings suspended from 12.50 p.m. to 2.05 p.m. CHAIR-Order! The hearing will resume. Colonel Gallagher, you have some additional answers, I believe. Col. Gallagher-I have been trying valiantly to get answers to some of the questions. CHAIR-When an Army man tries valiantly, we know he has really tried very hard! CERTAIN MARITIME INCIDENT CMI 1920 SENATE-Select Thursday, 11 July 2002 Col. Gallagher-There were a number of questions that I was going to try to get back to you on, some of which may have to wait until a formal response can be prepared. In the first instance, in relation to phone calls from Coastwatch to ASTJIC on 17 and 18 October, on 17 October the watchkeeper received a phone call at 2159 which, as is indicated in the chronology, related to the movement of an Abu Qussey vessel. With regard to the phone call on the 18th from Coastwatch, we received that at 1440. The content of that phone call related to another SIEV. In relation to the numbers on board SIEVX, and when it became apparent exactly what those numbers were, we will have to respond formally. There appears to be some disagreement or a lack of clarity, but it is sufficient to say that the NORCOM intsum on 20 October reflected the fact they were concerned about overcrowding on the vessel, which is essentially the substance of the intelligence report that was put out by the ASTJIC that morning. As to the detail of that report, I suggest that the committee seeks advice from Coastwatch, which advised us; and from the AFP, which in turn advised Coastwatch of the reported departure of that vessel. With regard to the question of whether the ASTJIC reported to anyone to look out for SUNCs in life jackets, the answer is: certainly during the first half of October, no. As to whether the ASTJIC advised anyone that children had been thrown overboard: again, no. CHAIR-I think that question related to looking out for children being thrown overboard. Does the same answer hold? Col. Gallagher-Yes, the same answer holds. CHAIR-You believe that? Col. Gallagher-Yes. CHAIR-Is there anything arising from that? Senator FAULKNER-The phone call at 1440 on the 18th was about another SIEV, wasn't it? Col. Gallagher-Yes. Senator FAULKNER-Do you know what SIEV that was about? Col. Gallagher-I did not inquire. I could not speculate. I would have to go back again. Senator FAULKNER-Probably SIEV6, but I am just assuming that. But one should not make any assumptions if it is a numbered SIEV. If you go to Admiral Gates's chronology for the 18th, it says: Coastwatch phone through then promulgate in CMSP OPSUM PM 18 Oct 01 that Quassey vessel 'reported' to have departed Java, Indonesia for Christmas Island on 17 Oct 01. What is the status of that phone call? Col. Gallagher-That is the phone call I am referring to. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1921 Senator FAULKNER-This identifies an Abu Qussey vessel. Col. Gallagher-No. My understanding is that the phone call we received did not relate to the Abu Qussey vessel. The Abu Qussey vessel was mentioned in the Coastwatch opsum that day, but the phone call that we received, which was the question I was asked, did not relate to that vessel. Senator FAULKNER-Hence the significance of the footnote. Col. Gallagher-I cannot comment on the significance or otherwise of the footnote. Senator FAULKNER-It changes the date from 17 October to 16 October. Senator JACINTA COLLINS-Senator Faulkner is trying to ascertain what the status of that opsum is, then, if it was not the phone conversation. It did not pop into someone's imagination. Col. Gallagher-I cannot answer what the basis of Coastwatch reporting that might have been. Senator JACINTA COLLINS-But you are saying that the phone call you are aware of at 1440 was about a different SIEV. Col. Gallagher-Yes. Senator JACINTA COLLINS-Were there other phone conversations? Col. Gallagher-None are recorded in our log on that day. Senator JACINTA COLLINS-Were any recorded on the 19th, in relation to the next opsum where the vessel again was recorded? Col. Gallagher-Yes, there would have been a phone call. But I would have to go back and find out what time that phone call was. I was asked about the timings of the phone calls on the 17th and the 18th. If you wish me to do that, I will. Senator FAULKNER-But why wouldn't the phone call of the 19th be recorded in Admiral Gates's chronology? Col. Gallagher-I cannot answer that question; I do not know how to answer it, other than to say that I cannot answer it. Senator JACINTA COLLINS-Colonel Gallagher, the other problem we have is that a number of these opsums and other reports are equally classified. But the one report that you referred to earlier this morning as classified is not here because it is classified. Col. Gallagher-Yes, that is correct. CERTAIN MARITIME INCIDENT CMI 1922 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-A number of these other reports referred to in the DIMIA reports and others would be classified too, but they make the chronology. Col. Gallagher-I do not understand the process by which they derived the chronology. My broader understanding is that, where there may be gaps, they relate to material that was sourced from other agencies, and those agencies have declined to declassify the material. Senator JACINTA COLLINS-But the gap we discussed this morning was your own assessment. If you can remember, I asked you why the assessment that you had reached on the 20th- Col. Gallagher-Yes, that is right, and that is reflected in the NORCOM intsum. Senator JACINTA COLLINS-So that is your way of describing that assessment. I thought you were saying that the Australian intelligence centre assessment was different from that of NORCOM. Col. Gallagher-No. It was sufficiently alike that, without going back to the originator to try to get them to declassify the information, the NORCOM intsum adequately described what was in the ASTJIC intelligence report of that morning. CHAIR-That concludes questions. Thank you, Colonel Gallagher, for your attendance here today and your forthright way of answering questions. We appreciate the evidence you have given and you are now excused. Col. Gallagher-Thank you very much. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1923 [2.15 p.m.] KEELTY, Commissioner Michael Joseph, Commissioner, Australian Federal Police McDEVITT, Federal Agent Brendon Joseph, General Manager, National, Australian Federal Police CHAIR-Good afternoon, Commissioner, and welcome to the inquiry. I understand that you have a statement that you wish to make at the beginning of proceedings. Commissioner Keelty-Yes, please. CHAIR-Just before you embark on it, do you happen to have a spare copy? If you do, we will have it provided to the committee more rapidly than would be the normal course through Hansard. Commissioner Keelty-I am happy to provide it afterwards, if that is all right, Senator, because I have made some handwritten notes on it. CHAIR-Let me say, anything that you have made by way of notes on it, you ought to remove before it is photocopied. Commissioner Keelty-Thank you, Senator. At the outset, I respectfully make the point to the committee that, as a law enforcement agency charged with the administration of justice, the AFP has a much different role from those other agencies who have already appeared before you. The committee will be aware that the AFP is the Commonwealth government's primary law enforcement agency and is involved in investigation of those people who breach Commonwealth laws. The AFP, therefore, has an interest in enforcement of the criminal provisions of the Migration Act 1958. Our role is to investigate and prosecute under the criminal justice system, and we must be careful to preserve evidence and potential evidence. In particular, the AFP engages in targeting facilitators of people-smuggling ventures. These are the people who arrange for the marketing of opportunities for potential passengers, organise their travel to embarkation points, coordinate and provide vessels, and employ crews. To a lesser extent, the AFP also investigates and attempts to bring before the courts the crews of the SIEVs arriving in Australian waters. We do not investigate the passengers on board these vessels who are variously described as unlawful noncitizens, refugees, asylum seekers or illegal immigrants. Upon arrival in the Australian migration zone, the responsibility for dealing with those people lies with the Department of Immigration and Multicultural and Indigenous Affairs, and the Australian Customs Service. During the year 2000, as a result of increasing concerns about the number of potential unauthorised arrivals bound for Australia, a decision was made by the government to provide special funding for a number of initiatives to address the predicted increase in unauthorised arrivals. Among those initiatives was funding for the establishment of the joint AFP-DIMIA strike team, the expansion of the AFP and DIMIA overseas liaison officer networks, increased CERTAIN MARITIME INCIDENT CMI 1924 SENATE-Select Thursday, 11 July 2002 law enforcement assistance to the Middle East and Asia Pacific countries, and additional targeted assistance to Indonesia. In July 2000, the AFP established a joint people-smuggling team in partnership with the department of immigration. It is staffed by 10 AFP officers and five employees from DIMIA. On 27 September 2000, the Minister for Justice and Customs issued a ministerial direction to the AFP under section 37(2) of the AFP Act, stating that the government expects the AFP to give special emphasis to countering and otherwise investigating organised people-smuggling. The direction went on to state that the AFP should also ensure that it provides an effective contribution to the implementation of the government's whole of government approach to unauthorised arrivals. In addition to its investigative efforts against criminal groups behind people-smuggling and the crews of SIEVs, the AFP also has a responsibility for the provision of community policing services to Australia's external territories including Christmas Island. Prior to 28 September 2001, the AFP on Christmas Island were involved in the boarding of SIEVs, the issuing of immigration detention notices, escorting illegal immigrants from SIEVs to detention facilities and the initial processing of these passengers on behalf of Immigration. On 28 September 2001 the Australian Customs Service officers commenced working on Christmas Island and they took over the customs and immigration functions previously performed by the AFP. The AFP continued to assist ACS in carrying out these responsibilities, including the boarding of vessels and issuing of detention notices. At present the AFP has four sworn members on Christmas Island and draws upon five special members who are also part-time employees of the Customs Service. Those five form part of 12 local part-time ACS officers up there. Two permanent customs officers and one DIMIA officer since August 2001 complete the entire contingent. Members of the committee might know that the AFP also maintains a very strong focus on trying to fight crime offshore, now commonly referred to as transnational crime. You will also be aware that the AFP has no criminal jurisdiction, that is police powers beyond Australia's borders. As such we do not have an operational role in other countries. We make up for this limitation by seeking the assistance of, and collaboration with, overseas law enforcement agencies. The AFP's international liaison officer network is critical to our transnational crime fighting strategy. Strategically placed liaison officers seek to build relationships of trust and confidence between Australia and our international counterparts to combat criminal activity that either directly or potentially impacts upon Australia's interests. In the case of organised people- smuggling, our focus has been on obtaining support from our counterparts in South-East Asia, particularly Indonesia. As the committee is aware, Indonesia has been the final departure point for the majority of SIEVs destined for Australia. We are therefore involved in fighting the crime at both ends of the people-smuggling pipeline. The AFP liaison office in Jakarta consisting of two AFP federal agents works cooperatively with the Indonesian National Police, the Indonesian defence force and immigration agencies. On 27 October 1995, the AFP entered into a memorandum of understanding with the Indonesian National Police to cooperate in the investigation of transnational crime. This MOU was later renewed on 5 August 1997 and on 15 September 2000 the AFP entered into a specific protocol under the MOU to target people smuggling syndicates operating out of Indonesia. I would ask the committee to note that on 13 June 2002 I signed a new memorandum of understanding with my counterpart in the Indonesian National Police. In previous evidence before the Senate Legal and Constitutional Legislation Committee, I provided some insight into CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1925 the joint activities undertaken by the AFP officers and their Indonesian counterparts. While such matters are sensitive they include the management of human source relationships. I am sure the committee would understand my reticence in delving too deeply into any other relationships that may exist between the AFP, our partners overseas and human sources. On this point I ask the committee to recognise that to jeopardise this relationship is a valid point of objection that I may need to raise should the committee wish to pursue the relationship in any detail beyond the MOU. I can say that in August 2001 the AFP-DIMIA people-smuggling team commenced deploying a number of investigators to Indonesia to assist the whole of government approach to the issue of people smuggling. They work closely with the Australian Embassy in Jakarta. The processes we have in place offshore combined with the investigative efforts in Australia have been successful in bringing people responsible for organised people-smuggling before overseas and Australian courts. In addition, since February 2000, the Indonesian authorities have diverted over 3,000 people suspected of intending to enter Australia illegally into legitimate migration processes under the auspices of the United Nations conventions. It is estimated that there are approximately 2,100 people in Indonesia who may attempt to travel to Australia illegally. Again, while not wanting to delve too deeply into relationships that the AFP and our overseas partners may have for obtaining information to be used for the arrest and successful prosecution of criminals, it would be obvious to the committee that during our operations offshore the AFP generates an amount of collateral information relevant to the identification of vessels used by people smugglers. Information we received about SIEVs often contained conflicting dates regarding their departure, deliberate misinformation regarding departure locations, and ambiguity into the transport and staging areas for passengers in Indonesia. Information was often second-hand and difficult to attribute to specific vessels. As a police organisation, we have extensive experience in addressing the value of information from human sources. We know that it is an imprecise science and it is dangerous to make decisions based on uncorroborated single source information in people-smuggling matters or indeed any criminal matters. We have learnt through experience that the reliability of information, which is sometimes provided anonymously, may be questionable and that the motivation for passing information is usually for self-gain. There are often other motives for passing on information such as deliberate misinformation to divert police attention or to harm a criminal competitor. The methods used by these sources to collect information may result in an incomplete picture and that these sources may not have access to first-hand information. As police, knowing these things instils in us a level of caution against making decisions based solely on such information. As a consequence, there is often a need to conduct additional inquiries to corroborate information from human sources. The committee has already heard testimony that during the course of Operation Relex there were a number of SIEVs intercepted en route to Australia, sometimes in very quick succession. Between August and November 2001, the AFP received an amount of information pertaining to all vessels that were identified during this operation. Additionally, the AFP received numerous pieces of single source information about potential SIEVs. The AFP was not able to corroborate any of those alleged movements until after the vessels were intercepted. Each Commonwealth government agency with an interest in countering organised people-smuggling contributes to the whole of government approach by the provision of service based on their existing unique CERTAIN MARITIME INCIDENT CMI 1926 SENATE-Select Thursday, 11 July 2002 capabilities. The AFP is not a maritime surveillance agency and it does not possess the expertise to plan or mount maritime operations. As our contribution to the whole of government approach, the AFP focuses on the investigation and bringing before the courts those people responsible for organised people- smuggling to Australia. We also pass to other agencies collateral information gathered for our purposes that may be useful to them. The AFP passes collateral information pertaining to SIEVs via established protocols at the national and international level in written form and on occasions this is supplemented by oral advice if circumstances dictate. Information received by the AFP overseas and in Australia was passed to the AFP-DIMIA people-smuggling team who in turn assessed the relevance of this information to its investigation into organised people-smuggling. The people-smuggling team would then package the information relating to the SIEVs in written form and disseminate them to Defence, DFAT, DIMIA, Coastwatch, Customs and ONA. At this time the AFP would provide limited, if any, analytical comment. Most of this team would on occasions engage in face-to-face verbal exchanges of the information with employees of other agencies. As a result of the AFP's concurrent responsibilities with regard to the investigation of SIEV crews and the provision of community police services on Christmas Island, we were also invited to attend other meetings such as the Prime Minister and Cabinet People Smuggling Task Force interdepartmental committee. The involvement of the AFP in these meetings and our written documentation was limited to the scope of AFP law enforcement responsibilities, as I have highlighted previously. It is not the role of the AFP to comment on policy or on strategies to locate and intercept SIEVs. I turn now to specific matters before the committee. I refer the committee to my previous evidence given to the Senate Legal and Constitutional Legislation Committee concerning AFP activities at about the time of the children overboard incident. In particular, I refer you to my evidence to that committee on 19 February 2002 and my letters of 20 and 22 February to the chair of that committee. To me, it is important that this committee is aware that four crew members of SIEV4, including one juvenile, are charged with offences contrary to section 232A of the Migration Act 1958. These people are currently awaiting trial before West Australian courts. The juvenile is appealing against the concurrent trial with the co-accused. As highlighted in my correspondence to both Senator Cook and the secretary of this committee, the pending trials will have an impact on some of the answers that I am able to give to the committee as I would not, and I am sure the committee would not, want my answers or the answers of any member of the AFP to prejudice a fair trial of those people. The terms of reference of the committee may also require me to answer questions on a number of SIEVs, especially SIEVX. Again, from the outset, I need to make it known to the committee that there are a number of ongoing AFP investigations, as well as impending Australian and international prosecutions and other legal processes, in relation to people associated with those vessels. In particular, the AFP has obtained three first instance warrants for the arrest of the alleged organiser of SIEVX for offences against the Migration Act 1958. He is currently in custody in Indonesia. Seeking his extradition is a delicate matter as extradition requires dual criminality which does not exist at the moment in Indonesia because people smuggling is not an offence there. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1927 In February 2002 a regional ministerial conference on people smuggling, trafficking in persons and related transnational crime was co-chaired by the Indonesian foreign minister and the Australian minister for foreign affairs and trade. An outcome of that summit was a non- binding resolution for Indonesia and other participating countries to enact people smuggling legislation that could eventually permit extraditions between our respective countries for people smuggling. In addition to pursuing the alleged offender on people smuggling offences, I believe that, based on the evidence available to the AFP, we can establish that the alleged organiser of SIEVX, whose actions led to the deaths of 353 persons on board, could possibly be charged with offences associated with those deaths. The AFP is currently interviewing witnesses in Australia and is seeking the cooperation of Indonesian National Police to gather further evidence to support any potential future prosecution for those matters. In this circumstance it is important to note that the criminal prosecution may not be dictated by where the vessel sank but it may be determined by the vessel's intended point of arrival. We are currently seeking legal advice to clarify this question. If we can establish that Australian charges can be laid then we would seek further first instance warrants for the arrest of the alleged organiser. If we are able to proceed with such charges, dual criminality does exist with Indonesia and we would, therefore, be seeking extradition. If it is found that the AFP lacks legal jurisdiction in relation to the primary offence then we may seek first instance warrants for the arrest of the alleged organiser for offences of attempting to smuggle the people to Australia. We are also seeking legal advice as to the scope of dual criminality with Indonesia on these inchoate crimes and the likelihood of a successful extradition. I repeat that the AFP does not wish to put any of these legal processes at risk by virtue of evidence provided to this committee. I am sure that the committee will agree that, given that the AFP is aware of the alleged perpetrator of this crime, then nothing that the AFP says or does before this committee should prejudice any future prosecutions. I draw the committee's attention to the correspondence from the Clerk of the Senate to the Chair of the Senate Legal and Constitutional Legislation Committee of 28 May 2002 regarding the detrimental effect questions and answers in Senate committees may have on the conduct of legal proceedings. I quote from that advice: The problem is that questions and answers in a Senate committee hearing, because they are protected by parliamentary privilege, are unexaminable in any legal proceedings. This could cause difficulties in those proceedings and could easily cause them to miscarry. For example, if police were to answer questions in a committee hearing, in a subsequent trial the defence could claim that the police answers provide evidence favourable to the defence and the defence's inability to adduce them in evidence before the court prevents the defence from properly presenting its case and therefore prevents a fair trial and that, on that basis, the prosecution should be dismissed. There is precedent in civil cases for proceedings being stayed on the basis that material protected by parliamentary privilege could not be examined and this prevented a proper trial of the matter in issue. The courts are more likely to dismiss a criminal case because of material which may be relevant in the case but which is unexaminable because of parliamentary privilege given the greater reluctance of courts in criminal matters to allow any unfairness to the defence. Had I received this advice previously, it may have altered my evidence before the Senate Legal and Constitutional Legislation Committee in February 2002. Based upon the advice from the Clerk of the Senate and with due consideration for matters currently or potentially before the courts and under investigation, I wrote to this committee on 17 June 2002, raising concerns I had about the detrimental impact of any evidence I may be CERTAIN MARITIME INCIDENT CMI 1928 SENATE-Select Thursday, 11 July 2002 asked to provide to the committee on these matters. That letter was leaked to the press and, while I consider that a gross infringement of the proper conduct of this committee, I note the undertaking given to me by the chair of the committee, Senator Cook, to refer this matter to the Senate Privileges Committee and I thank Senator Cook for the seriousness he attached to my concerns. On 20 June 2002, the committee determined that it would not call me to give evidence, citing, `The committee has concerns that to take evidence from the AFP at this stage may prejudice these proceedings.' I also acknowledge the letter from the chair of the committee dated 3 July 2002 in which I was again provided with an invitation to appear before this committee. I assure the committee that the AFP is committed to fulfilling its responsibilities but only to an extent that does not prejudice current or future legal proceedings. I must, however, state that these sensitivities, which caused the committee to postpone my evidence on 20 June 2002, still exist today. In the letter of 3 July 2002, the chair of the committee stated that the committee would expect me to draw to its attention any concerns I might have in responding to some of the questions that may be put to me and that the committee would consider any request by me to respond to a question in a manner consistent with my assessment of sensitivity. I have already said that these sensitivities still exist and I believe it is important the committee recognise the potentially dire consequences to legal proceedings and investigations should an error in judgment be made by either of us. The question of whether evidence before this committee will impact on a fair trial of defendants in both the SIEV4 and the SIEVX matters can only be answered later, in the course of those criminal trials. We cannot put ourselves in the shoes of a prosecutor or defence counsel. We cannot second-guess how they may intend to prosecute or defend matters, nor can we second-guess the evidence they may call to support their arguments. In these circumstances I must take a very conservative approach in commenting on matters which could be called into evidence in legal proceedings. I believe that the committee, in its acknowledgement of these circumstances, also accepts its share of the responsibility for any prejudicial outcomes from its line of questioning. I want to reassure the committee, however, that I have caused a thorough examination to be conducted of the AFP's holdings in relation to the SIEVX matter. This examination has revealed that the AFP passed all relevant information to the appropriate authorities. All information that may have led to a conclusion that the passengers of SIEVX were in danger was obtained after the vessel had in fact sunk. Much of that information was actually obtained from interviews with survivors conducted by the Indonesian National Police. I would also like to point out that no-one in the AFP was or is aware of the precise location of the sinking of the vessel, despite evidence to the contrary provided to this committee and inferences drawn from that evidence by sections of the media. Indeed, we may need to now establish that fact in order to determine jurisdiction for any future prosecution. Within the constraints I have identified and which the committee has acknowledged, I am pleased to assist the committee where I can. The AFP is accustomed to being held accountable for its actions before courts and other legal bodies, including the parliament. However, problems arise when attempts to satisfy the needs of one may jeopardise the functioning of the other. I have already outlined in my opening statement that this was one of those situations. I have agonised over how we can release information to this committee to address the specific CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1929 issues that you want answered, those being: what information the AFP held about the departure, seaworthiness and ultimate fate of SIEVX; the manner in which the AFP came into possession of that information; and the specific actions taken by the AFP with that information, including whom we told and when. While I want to answer those questions, I am unable to be specific about the content of communications between the AFP and other agencies, a burden not placed upon other departments that have appeared before you. I am aware that my inability to answer those questions goes to the very heart of my credibility as a witness as well as that of my organisation in your eyes and potentially those of the public but, on the advice provided to me, I simply cannot go further. Thank you. CHAIR-Thank you, Commissioner. I believe, since it is consistent with what you have said, that you would also want us to take note of your letter to me of 8 July. Commissioner Keelty-That is correct. CHAIR-We will do that. If it is convenient, I will ask one of the secretariat staff to get a copy of your statement so that it can be circulated to the committee. I do not want to deprive you of it, however, in case you are to be asked a question on it. Are you comfortable to hand it up now? Commissioner Keelty-I may be able to provide you with a copy, as one of my colleagues might have another copy of it. They are going to photocopy it, after making a small editorial adjustment. CHAIR-All right, we will leave it in your hands and get it as soon as it can reasonably be available. For questions, I think the normal courtesy is extended to you, Senator Brandis, although you have not been keen to accept it thus far today. Senator BRANDIS-I just thought I would let Senator Faulkner go first this morning. I will ask questions first now, if you like. CHAIR-It is through courtesy that I offer it to you again. Senator BRANDIS-Thank you. I have a couple of questions, Commissioner. Before I ask them, may I assure you that, to adopt the language that you just used, at least as far as the government senators are concerned, your inability to answer any questions, on the basis of the proper exceptions that you have foreshadowed, does not at all go to the heart of your credibility as a witness. The government senators entirely understand the reasons you have foreshadowed as to why it might not be proper for you to answer certain questions. We accept that entirely and that does not, in our view, even remotely reflect upon your credibility as a witness. Commissioner Keelty-Thank you. Senator BRANDIS-Having said that, and having regard to the proper objections or limitations that you have foreshadowed, I ask you this: do I understand you to be saying that, on the basis of the information, data and intelligence that you have reviewed, you have no reason to believe that there was any information, at least accessible or available to the Australian Federal Police, that SIEVX had foundered until some time after that event had happened? CERTAIN MARITIME INCIDENT CMI 1930 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-That is correct. It was when the survivors were returned to Indonesia and advice was provided to us through the interview of those survivors by the Indonesian National Police. Senator BRANDIS-Did you have any information, intelligence or advice that SIEVX was in distress at any earlier time than that? Commissioner Keelty-We did not know about the departure of SIEVX until after the vessel had returned. We had no way of surveilling SIEVX as I pointed out earlier. We had no way of receiving any distress call. Senator BRANDIS-Was there any step, in your judgment, that the AFP could have taken at any time earlier than any step was taken, either itself or by way of alert to other Australian agencies, to go to the rescue of SIEVX or the people who were travelling on SIEVX? Commissioner Keelty-No. CHAIR-I think you can assume, Commissioner, that the remarks that the government senators have made about your credibility as a witness are shared by the entire committee. Commissioner Keelty-Thank you, Senator. Senator FAULKNER-I have some questions, Mr Chairman. Commissioner, the meeting of the high-level group, the People Smuggling Task Force, on 12 October 2001, was attended by a number of people but in this case Mr Shane Castles was the AFP representative. I think it is fair to say that he was a fairly regular representative of the AFP at the People Smuggling Task Force meetings, wasn't he, from what I have read of the notes and minutes of the meetings? Commissioner Keelty-That is correct, Senator. Senator FAULKNER-In the notes or minutes of the high-level group of 12 October 2001, it is recorded that there was a discussion of disruption activity and scope for beefing up. I wondered whether you would mind outlining to the committee what you understand by disruption activity. Commissioner Keelty-Disruption activity was taken-and still is today-in relation to a number of vessels. By disruption, we mean the use of the Indonesian national police to divert potential passengers to the International Organisation for Migration or the interception by the Indonesian national police of passengers prior to boarding vessels. What would happen-and I am not talking about specific cases but generally-is that potential passengers are gathered sometimes in a number of locations and at the last moment they are provided with details or transport to an embarkation point and they are placed on the vessels at the embarkation point. Often a disruption activity would be to prevent the passengers from getting to the point of embarkation or, if we knew who the people smuggler was, to have the Indonesian national police arrest the organiser, or in other ways to disrupt the gathering of the people prior to the vessel departing. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1931 Senator FAULKNER-Specifically in relation to the 12 October 2001 meeting where this discussion of disruption activity and scope for beefing up took place, did you get a report back on that from Mr Castles? Commissioner Keelty-I did not personally. Senator FAULKNER-How did the link between the task force and the AFP actually work? I think we understand that some of this was done in a relatively informal way and it depended a bit on the agency. How did it tend to work with the AFP? How did you link in to the task force? How did the task force link in to you? Commissioner Keelty-The task force was led, as you know, by Prime Minister and Cabinet. We would respond to a call to attend task force meetings. As you pointed out, Senator, those task force meetings were attended by Federal Agent Castles, who would go there and provide the latest information that the AFP had. Senator FAULKNER-Did he report back to you or to one of the other senior officers? Commissioner Keelty-He would report back to Mr McDevitt's position and a decision would be made about what to do with information that was gathered and whether any taskings were relayed to the people smuggling team or back to the AFP officer in Jakarta. Senator FAULKNER-On 12 October 2001 was this a reference, do you know, to a specific boat, a specific group, to unauthorised arrivals in general or to people smugglers in general? Do you know what this particular reference related to? Commissioner Keelty-As far as I am aware it was to continue the type of activity that we had undertaken in the past-to see what the Indonesian national police could do to prevent the passengers from arriving at the vessel. Senator FAULKNER-But you said `arrest people smugglers'. I heard what you said in your opening statement and I was aware of it, because obviously it is an issue and it is a problem, frankly, that people-smuggling is not an offence under Indonesian law. I am sure you would accept and acknowledge that. For what crime would the Indonesian police be able to arrest people smugglers? I want to understand how it works. Commissioner Keelty-Most of the people smugglers are not Indonesian nationals, so the very nature of their arrival into Indonesia is often in breach of immigration laws, and they often make money out of organising the people to be smuggled out. So there are a number of breaches of Indonesian law that they could have been spoken to about by the INP. Federal Agent McDevitt-A frequent MO is for people to be assembled and for documentation to be handed across to people-smuggling facilitators. An offence that may be disclosed would be, for example, if a people smuggler were caught in the act of holding expired or false documentation. Senator FAULKNER-Mr McDevitt, I assume Federal Agent Castles reported back to you on the meeting of 12 October? CERTAIN MARITIME INCIDENT CMI 1932 SENATE-Select Thursday, 11 July 2002 Federal Agent McDevitt-I only took up this position in about mid-March. At that point it reported to my predecessor, Federal Agent Andy Hughes. Senator FAULKNER-Fair enough. Can either of you assist me with what the general tenor of the discussion of the task force at that meeting was? Commissioner Keelty-The minutes of the meetings were kept by PM&C. Whilst Mr Castles may have, from time to time, made his own notes of what occurred there, judging by this it was just a discussion of disruption activity and scope for beefing up. That was not unusual. As information that the departure of vessels was more imminent, there was heightened activity to try to see what we could do to disrupt the process. This case would have been just another example of that. Senator FAULKNER-What does `beefing up' mean? Commissioner Keelty-It may well have been in this case that the Indonesian National Police had not been able to locate the passengers or had not been able to locate the organisers. It would have been just a reference to making an extra effort to disrupt. Senator FAULKNER-Do you know for what reason this would be suggested at this time? Commissioner Keelty-Without going into SIEVX, if you look at the range of vessels that information was being passed about at the time, you may, for example, have information about a vessel some three months before it actually departs. The reason for that is the organiser cannot get the vessel, cannot get someone to sail the vessel or cannot get someone with the skills to sail the vessel who knows that they can get it to the country; sometimes the passengers question the ability of the organiser, after they have paid the money, to try to guarantee that the vessel will arrive safely. It is a very imprecise activity, like any criminal activity is. My judgment would be to not read anything into that other than that the departure of the vessel is imminent and that we had better beef up our activity. Senator FAULKNER-I am not reading anything into it; I am just trying to understand it. Who would request a beefing up? Commissioner Keelty-I am not saying you are reading into it, but if it were me I would not react to that notation other than to say: the intelligence obviously is that the vessel's departure is imminent- Senator FAULKNER-I am not drawing any conclusion by the way that it relates to a specific SIEV or vessel; in fact, I assumed it did not. But I thought that, if there were a suggestion of beefing up, there might be resource implications and the like so that this would be significant from the AFP's point of view. Commissioner Keelty-No, it is not. To me it is just an operational call along the lines of, `The departure of the vessel is imminent; we'd better be doing everything we can possibly do.' CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1933 Federal Agent McDevitt-That, of course, would be limited to any lawful means that could be employed to prevent or dissuade people who are potential passengers from getting onto vessels or going ahead with a particular venture-media campaigns, those sorts of tactics. Senator FAULKNER-What about `disruption activity'? I have heard the terminology `dismantling activity' used sometimes; is that the same thing? Commissioner Keelty-Dismantling activity can be the same. Where we use dismantling is when we identify a syndicate involved, we try to look at the key players in the syndicate and we target our activities against those players to in fact dismantle the syndicate. That is how we would use the terminology. Senator FAULKNER-So you do define the difference between `disruption' and `dismantling' in that sense. Is disruption a broader term and dismantling a subset of disruption? Commissioner Keelty-From the AFP perspective, dismantling is a strategic approach to dismantling the syndicate; disruption is a tactical approach to stopping the activity as best we can around the time that it is occurring. Senator FAULKNER-So is it fair to say, then, that dismantling is an element of disruption? Federal Agent McDevitt-That is possibly one way you could describe it. Senator FAULKNER-Or am I looking at it not as a Federal Police agent but as a senator? Federal Agent McDevitt-Dismantling is more focused on targeting the critical players, the facilitators, within the syndicate. So you are actually taking away a fulcrum for activity, if you like; whereas disruption can extend far beyond the syndicate itself and, for example, target potential passengers on the vessel to disrupt their getting on board. Senator FAULKNER-So it is fair to say that disruption is perhaps a broader term; would that be a better way of describing it? Federal Agent McDevitt-Yes. Senator FAULKNER-This is obviously a layman's question, but is that the broader term? Commissioner Keelty-Yes. Senator FAULKNER-Fair enough. I think I said to you before that I am interested in the disruption activity in relation to people-smuggling that takes place in Indonesia. My questions basically go to that-I am sure there is other disruption activity in other countries, and probably in Indonesia, about other things-so that we can define it down. In other words, my questions are relevant to the terms of reference of this committee. Who determines the objectives for the disruption activities? CERTAIN MARITIME INCIDENT CMI 1934 SENATE-Select Thursday, 11 July 2002 Federal Agent McDevitt-In broad terms it would be fair to say that the primary objective is to prevent the departure of the vessel in the first instance, to deter or dissuade passengers from actually boarding a vessel. Senator FAULKNER-Who determines that objective? Commissioner Keelty-Sometimes it will be us in isolation. If there was a team meeting, it could be the outcome of that team meeting. Clearly, on the matter cited, it was an outcome of that meeting. We were not in a sense acting at the direction of anybody. If we saw potential to disrupt activity before it gathered any momentum, we would do it. Senator FAULKNER-Using Mr McDevitt's example, which is obviously a good one, preventing departure of a SIEV-although I suppose you cannot define such a vessel as a SIEV before- Commissioner Keelty-Before it is a SIEV. Senator FAULKNER-Yes, so `vessel'; Mr McDevitt's terminology is probably better. So preventing a departure of a prospective SIEV is the objective. What are the methods used to fulfil that objective? Commissioner Keelty-As I already outlined, from an AFP perspective the method is to, through our liaison officer in Jakarta, approach the Indonesian National Police, who are our main contact, to commence activities, whether by way of investigation, whether by way of arrest, whether by way of some other intervention that might, first of all, prevent the passengers from arriving at the point of embarkation. If they arrived at the point of embarkation, they might intervene at that point to stop the people from boarding the vessel and in fact to achieve the result that Mr McDevitt raised: to prevent the departure of the vessel. Senator FAULKNER-Is there a whole series of methods that could be used? Commissioner Keelty-That is right. Senator FAULKNER-Under whose direction are these methods carried out? Commissioner Keelty-They are carried out at the discretion of the liaison officer in Jakarta as to the best method to apply. But we cannot direct the Indonesian National Police. We can seek their cooperation. Like any criminal investigation, the police use their initiative and apply their discretion. Senator FAULKNER-But as far as the AFP is concerned, your liaison officer in Jakarta is the officer who has the relevant authority in this. Is that right? Commissioner Keelty-That is right. Whilst we might gather intelligence or gather information here in relation to the matter, we have to leave it to the officer in Jakarta because we have no authority over the Indonesian National Police either. He will advise us what is possible and what is not and where he is getting a response and where he is not. That happens CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1935 for every police officer. I cannot order a police officer, for example, to make an arrest. They have to form in their own mind that the circumstances exist in which it is possible for them to make a lawful arrest. Senator FAULKNER-So if, for example, a decision were made to prevent the departure of a specific vessel-any specific vessel-that would be a decision that would be made out of Jakarta; it would not been made further down the line. Commissioner Keelty-It could be made further down the line where we are we have assessed the relevant intelligence and we have become aware of a vessel that perhaps Jakarta does not even know about. Then we pass that down the line to Jakarta and seek their intervention. Federal Agent McDevitt-There is very good communications between our Canberra office and Jakarta, and those sorts of decisions would be made in consultation. As the commissioner has said, it largely hinges on the level of cooperation and liaison with the Indonesian National Police, given that we do not have an operational role-obviously-in Indonesia. Senator FAULKNER-Who does your liaison officer in Jakarta report to? Federal Agent McDevitt-They report back to the Director of International Operations in Canberra. Senator FAULKNER-Commissioner, you, I assume, have the final authority in this? If you do not, who does? Commissioner Keelty-I have the final accountability. The authority, and thus the independence of the office of constable, lies with each individual police officer. But I am accountable for what they do. Senator FAULKNER-Who carries out the actual disruption activities? Commissioner Keelty-The Indonesian National Police. Senator FAULKNER-Only the Indonesian National Police? Commissioner Keelty-There may have been assistance from time to time from Indonesian immigration or Indonesian defence but, for the main part, it was with the Indonesian National Police that we had the law enforcement relationship. Senator FAULKNER-So the Indonesian National Police, Indonesian immigration and the Indonesian defence force, possibly. Anyone else? Commissioner Keelty-No. Senator FAULKNER-No-one else? CERTAIN MARITIME INCIDENT CMI 1936 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-No. Senator FAULKNER-Just those three but mainly the Indonesian police? Commissioner Keelty-That is right, in terms of the intervention for disruption. Senator FAULKNER-In terms of? Commissioner Keelty-Your question, as I understood it, was with whom do we engage to give effect to the disruption. Senator FAULKNER-Engage? No, I asked who carried it out. Engaging is one thing; who carries it out is another thing, isn't it? We know with whom we engage but who carries it out? Commissioner Keelty-The agencies I mentioned, with the emphasis being on the Indonesian National Police. Senator FAULKNER-What sort of accountability is there? How do you know what they are up to? Commissioner Keelty-We don't, but we know what we have requested of them and we know as a result of that request what the outcome of the request is. Senator FAULKNER-Are they paid for this? Commissioner Keelty-No, they are not. Senator FAULKNER-Not at all? Commissioner Keelty-No, they are not. Senator FAULKNER-Is anyone paid for this? Commissioner Keelty-Not for disruption activity. Senator FAULKNER-What are they paid for? Commissioner Keelty-I do not understand your question. Could you make it more precise, please. Senator FAULKNER-You said that they are not paid for disruption activities. I assume this is a reasonably resource intensive function for the Indonesian police and the other agencies involved in it. Is there a quid pro quo? Commissioner Keelty-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 that I mentioned in my opening statement. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1937 Senator JACINTA COLLINS-The MOU? Senator FAULKNER-The protocol hanging off the MOU. Commissioner Keelty-You are right, it is the MOU, and it is the protocol under the MOU. Under that protocol, we did provide equipment and training to the Indonesian National Police, who set up a number of task forces specifically for the purposes of addressing the people- smuggling problem. Senator FAULKNER-So the disruption activity is limited to Indonesian agencies? Commissioner Keelty-The people who do the disruption are the Indonesian agencies; that is right. Senator FAULKNER-Are decisions about this limited just to the AFP at an operational level, or is there any discussion about these sorts of activities at task forces or your joint operations with DIMIA and the like? Commissioner Keelty-There could a range of ways of doing it: it could be discussed by the task force, it could be a recommendation of the task force, it could be by virtue of what the officers in Indonesia have gained knowledge about, so it is a variety of means. Senator FAULKNER-I assume the AFP have informants-I think you would know that from some of the publicity that you have seen over a number of months. Commissioner Keelty-That is correct. Senator FAULKNER-This is what I do not quite understand. I am assuming that Indonesian agencies, of whatever description, are not necessarily the middlemen in that regard. Commissioner Keelty-I do not understand your question. Senator FAULKNER-The AFP has agents, informants and others on the ground in Indonesia, doesn't it? Everybody knows that. Commissioner Keelty-That is correct. Senator FAULKNER-I assume that those sorts of people are not tasked by and do not report to Indonesian agencies; they would tend to report to and be tasked directly by the AFP or Australian agencies. I am just trying to get the picture. Commissioner Keelty-The picture is quite simple. You asked me who- Senator FAULKNER-Maybe I am a simpleton and I do not quite understand it. Commissioner Keelty-Maybe I can explain it again. The people who conduct the disruption-or the intervention-are the people with the power to conduct a disruption, that CERTAIN MARITIME INCIDENT CMI 1938 SENATE-Select Thursday, 11 July 2002 being the Indonesian National Police, the Indonesian defence and sometimes the Indonesian immigration. We find we obtain information from informants, but informants do not disrupt. They have no power to disrupt. Senator FAULKNER-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-That is not for me to say. I do not have any power over the Indonesian authorities. Senator FAULKNER-But you are asking them to do this. You are tasking them with this. Commissioner Keelty-We are not tasking them to do it. I mentioned before that we can seek their cooperation. We do not have a line of command over the Indonesian authorities. Senator FAULKNER-But they are cooperative, aren't they, in this regard? Commissioner Keelty-They have cooperated, yes. Senator FAULKNER-Would you describe them as cooperative? Commissioner Keelty-Yes. Senator FAULKNER-Is there feedback from them to you in relation to these activities? Commissioner Keelty-Yes. Senator FAULKNER-How does that work? Commissioner Keelty-Feedback can come in a number of ways. Feedback can be through activities that are overt in terms of people being arrested or detained, or feedback can be by virtue of outcomes in terms of activity that we undertake here in Australia. Senator FAULKNER-Have the Indonesian authorities, to your knowledge, expressed concern about these disruption activities? Commissioner Keelty-The protocol under the MOU was set aside for a period last year. Senator FAULKNER-What was that period, please? Commissioner Keelty-I will find out for you, if you will bear with me for a moment. Senator FAULKNER-Sure. Commissioner Keelty-I am advised that it was around September last year, which is also my recollection. In terms of the formal MOU, as I mentioned to you in my opening statement, CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1939 the protocol really was not formally re-adopted by the Indonesian National Police until we re- signed the MOU in June of this year. Senator FAULKNER-For the benefit of the committee, could you explain what happened in September-or around September; I appreciate that you have used that qualification and I accept that-last year? Commissioner Keelty-As I understand it, some concern was expressed in Indonesia by DEPLU, the equivalent of our Department of Foreign Affairs and Trade, that the activities of the Indonesian National Police which were being conducted under the protocol-or under the memorandum of understanding-had not been fully known to DEPLU, so they asked the police to set aside the protocol until such time as there was a more formal government-to-government agreement on what could be done. Senator FAULKNER-Did the concern go to the disruption operation? Commissioner Keelty-To a degree I think it did but, in spite of that, we still received some cooperation from the Indonesian National Police on a case by case basis. Senator FAULKNER-What concerns did the Indonesians express in relation to the disruption operation? Commissioner Keelty-I do not have a briefing on that and I do not know that anyone in the AFP does. In general terms, I understood that there was concern raised in DEPLU that there was perhaps a need for a more formal government-to-government arrangement, and that was one of the catalysts or levers leading to the ministerial summit in February. Senator FAULKNER-I would be surprised-very surprised-if the AFP was not informed of what these concerns might have been. Commissioner Keelty-It was a decision by the Indonesian government in their DEPLU, so I would not necessarily expect them to tell me why. Senator FAULKNER-I understand that. But, given that you were operating under an MOU and a protocol and there was a breakdown in activity for a period of time, I would be amazed if the Australian Federal Police did not have an understanding about why that occurred-just amazed. So I ask you again: could you explain to the committee what occurred around September last year and what were the reasons for this breakdown? Commissioner Keelty-I have explained that to the extent possible. Senator FAULKNER-Did it go to resources? Commissioner Keelty-Not that I am aware of. Senator FAULKNER-Did it go to moneys being paid by Australian agencies to Indonesian agencies? CERTAIN MARITIME INCIDENT CMI 1940 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-I do not think I can be in a position to answer this question. This question needs to be directed to the Department of Foreign Affairs and Trade or the Indonesian government. Senator FAULKNER-This must have had operational implications for the Australian Federal Police. Commissioner Keelty-It did. Senator FAULKNER-What were they? Commissioner Keelty-We asked the Indonesians whether we could still operate cooperatively having set aside the protocol and, as I say, we did achieve continued cooperation on a case by case basis. Senator FAULKNER-But you are saying to me that you were operating under that protocol until this breakdown occurred around September last year. That is right, isn't it? Commissioner Keelty-That is correct. Senator FAULKNER-The protocol hangs off the MOU? Commissioner Keelty-That is correct. Senator FAULKNER-You are saying to me that the protocol was set aside, and you do not know why. I try to be reasonable about these things, but I find it a little extraordinary that you do not know why that protocol was set aside. It is the protocol between the Australian Federal Police and the Indonesian police, but you do not know why. Commissioner Keelty-As far as I am concerned, I have given the answer: it was DEPLU that made the decision, not the Indonesian National Police. DEPLU do not have a relationship with the AFP, so they were not obliged to tell us why they set it aside. Senator FAULKNER-So the Indonesian police did not tell you why it was set aside? Commissioner Keelty-I mentioned before that the Indonesian police explained that it was set aside because DEPLU thought that there needed to be a higher level formal agreement-at the government to government level. Senator FAULKNER-Were there concerns about the nature of the disruption activities? Commissioner Keelty-What do you mean? Senator FAULKNER-As I said to you before, the disruption activities I would be directing my questions to would be those of the people smugglers in Indonesia. Commissioner Keelty-From whom? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1941 Senator FAULKNER-Were concerns expressed to you by the Indonesian police or other Indonesian authorities about the nature of the disruption activities-in other words, what were the Indonesians being asked to do? Commissioner Keelty-The concerns raised by the Indonesians were in respect of the MOU and of operating under the MOU and the protocol. There were the five teams of Indonesian National Police that had been established through the Law Enforcement Cooperation Program, which was involved in the disruption activity. Once DEPLU raised their concerns about needing a higher level of agreement at government to government level, we asked the Indonesian National Police whether they were still going to be in a position to cooperate with us, and we received that cooperation. In one sense it was setting aside the formal agreement, but in another sense the relationship and the cooperation remained largely the same. Senator FAULKNER-What checks are put in place in relation to these disruption activities by the Australian Federal Police, if any? Commissioner Keelty-We do not have governance over the Indonesian National Police- they are not accountable to us. Senator FAULKNER-So anything goes? Commissioner Keelty-I am not saying anything goes. If there were anything untoward, it would certainly be a concern that would be expressed by us and we might reconsider our position in terms of engaging them to assist us in our goals. Senator FAULKNER-Do you know of anything untoward that has happened? Commissioner Keelty-No, I do not. Senator FAULKNER-Do you know what has happened, given there are no checks and accountability? You would not actually know if anything untoward had happened, would you? Commissioner Keelty-That is not right. Oftentimes when we ask the Indonesian National Police to intervene in the gathering of potential passengers, for example, those passengers are identified, the INP goes in and the IOM takes over. If there were anything untoward, I am sure that we would become aware of it one way or the other either through difficulties being expressed by passengers or through persons who are later put through the IOM process. Senator FAULKNER-You said before that the setting aside of the protocol had some significant ramifications for AFP activities. For the benefit of the committee, could you outline what those ramifications were? Commissioner Keelty-It put a stay on the relationship in the sense that we were unsure as to whether we would be able to engage the Indonesians in continuing cooperation. In fact, I travelled to Jakarta to meet with my counterpart to see whether we would still be able to operate without the MOU. We did get agreement to continue to operate but on a case by case basis. So, in a sense, the impact was that we were operating without a formal MOU or a formal agreement for a period of time-until June this year. CERTAIN MARITIME INCIDENT CMI 1942 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-To what extent do you know if there was any ministerial knowledge of the nature of disruption activities that took place at the time? Commissioner Keelty-Do you mean ministerially in Indonesia or in Australia? Senator FAULKNER-I mean Australian ministers. Commissioner Keelty-I can find out whether we briefed our minister on it. In fact, some knowledge would have been conveyed to my minister's office because I would have had to explain to him why I needed to travel to Indonesia to speak to my counterpart, but I do not have the document in front of me. Senator FAULKNER-During this period, did the Australian Federal Police, at any level, seek legal advice in relation to the disruption activities in Indonesia? Commissioner Keelty-Not that I am aware of. Senator FAULKNER-If that had happened you would have been aware of it, wouldn't you? Commissioner Keelty-I would be aware of it by now, I am sure. Senator FAULKNER-Not even internally? No internal advice has been sought about the nature of these activities? Commissioner Keelty-No, there is no reason to. Nothing untoward came to our attention. As far as we are aware and can possibly be aware, the Indonesians were acting lawfully in Indonesia and we were acting lawfully in Australia. Senator FAULKNER-Are you saying to me-and you may be-that the question of the legality of these disruption activities has never been raised with you? Commissioner Keelty-That is correct. Senator FAULKNER-Not by anyone? Commissioner Keelty-That is correct. Senator FAULKNER-You have never had any concerns about the question of the legality of the disruption activities? Commissioner Keelty-No. Senator FAULKNER-Is Mr Enniss still in your employ? Commissioner Keelty-Mr Enniss was never an employee of the AFP. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1943 Senator FAULKNER-How would you describe his contractual relationship with you? I want to use the correct terminology. Commissioner Keelty-For a period of time Mr Enniss was paid for information that he provided to the AFP but that relationship ceased in September last year. Senator FAULKNER-Has the AFP had any ongoing relationship with Mr Enniss since then? Commissioner Keelty-Only as part of an investigation into allegations made by the Sunday program that Mr Enniss successfully smuggled people to Australia at the same time that he was providing information to us. Senator FAULKNER-I am aware of the allegations. But when you say `only' in that regard, I think there was some follow-up or reporting from the AFP, which is fair enough. Is that the sort of association you are talking about? Commissioner Keelty-It was to do with that inquiry. Senator FAULKNER-Sorry? Commissioner Keelty-Our contact with him since September last year has been in respect of the issues to do with the Sunday program allegations-which I might add were largely retracted later on. Senator FAULKNER-All the AFP intelligence sources in Indonesia-all AFP generated intelligence-does that get passed back through the DIMIA task force or strike team or whatever the correct terminology is-through DIMIA? Commissioner Keelty-Only that which relates to people smuggling. Senator FAULKNER-Fair enough. But all that relates to people smuggling gets passed back through DIMIA? Commissioner Keelty-Through the joint people smuggling team. Senator FAULKNER-Yes. How long has that process been in place? Commissioner Keelty-Since the formation of the team, which I think I said in my opening statements was in 2000. Yes, it was July 2000. Senator FAULKNER-Thank you. The protocol breaks down around September 2001. This is of course around the same time that at least 12 SIEVs head for Australia, isn't it? Commissioner Keelty-That is correct. CERTAIN MARITIME INCIDENT CMI 1944 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-What impact did the breakdown of the protocol have in relation to that people smuggling activity, if any? Commissioner Keelty-In general terms, it might have meant that we were less able to gather the support of the Indonesians than what we were before the protocol. The Indonesians did not disband the five teams that we had established under the Law Enforcement Cooperation Program. In fact, rather than have them singularly focus on people smuggling, they got them to also focus on transnational crime. It provided, I guess, different atmospherics in terms of being able to seek an immediate response. Senator FAULKNER-So when the MOU was put aside was there no formal or informal advice provided to the AFP about what the Indonesian concerns were? Commissioner Keelty-No. Senator FAULKNER-Do you now know what the Indonesian concerns were? Commissioner Keelty-Not specifically, no. Obviously those issues were worked through as part of the outcomes of the ministerial summit in February, and that has given us the capacity to renew the MOU. Senator FAULKNER-When you say `not specifically', is it that you do not know why the protocol was set aside, or that you do not know what the concerns were and how they were worked out, or what, if any, changes have been made? Commissioner Keelty-When I say `not specifically', I mean that I have not been briefed on it; it is not an issue for the AFP but for the Department of Foreign Affairs and Trade. Senator FAULKNER-So, as far as you know, the reasons for the setting aside of the protocol do not go in any way to AFP operations? Commissioner Keelty-No. Senator FAULKNER-Do you know what they do go to? Commissioner Keelty-No, because I was not briefed. Senator FAULKNER-At the ministerial summit, was there any discussion that you are aware of in relation to disruption activities? Commissioner Keelty-At the ministerial summit it was more of a regional approach rather than an individual country to country approach. Obviously there were outcomes from the summit that gave us the imprimatur to further develop. Working groups were established as a result of the summit, and one of the working groups was looking at again commencing the MOU, which is what we have done. Senator FAULKNER-Has that changed in any way the disruption activities? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1945 Commissioner Keelty-No, it has not. Senator FAULKNER-There are no differences, as far as you are aware, in the operation of the disruption activities, comparing now to what occurred prior to the laying aside of the protocol? Commissioner Keelty-No. I mentioned before that the difference was that we really had to approach it on a case by case basis without any formal agreement in place. The difference now is that we have the formal agreement in place and that DEPLU, their department of foreign affairs and trade, is aware of and has provided authorisation for the MOU to be put into place. Senator FAULKNER-To your knowledge, Commissioner, have any moneys been paid by anyone in relation to disruption activities? Commissioner Keelty-Not specifically. Under the Law Enforcement Cooperation Program, as I mentioned, we have funded equipment and training and we have brought some of the Indonesians out here to Australia. But it is not a funding for disruption in terms of, `If you disrupt X number of people, we will pay you X amount of dollars.' It is that generally that funding has been spent on developing the cooperative arrangements with the Indonesians in providing equipment. There is now a commitment to provide five patrol boats to the Indonesian National Police and, further to that, cooperative arrangements to deal with people smuggling. Senator FAULKNER-But no moneys have been paid to the Indonesian police for disruption activities? Commissioner Keelty-Not from the AFP, and not that I am aware of. Senator FAULKNER-That would have something to do with the protocol or other arrangements, so I assume that the AFP would be aware of it if it had occurred. But it might have occurred otherwise, might it? Commissioner Keelty-I only make the point that I am answering on behalf of the AFP. I have no knowledge of what other departments might be doing in terms of how they do it or what they might be doing. I simply make that point. Senator FAULKNER-No moneys have been paid by the AFP to anyone apart from for some equipment and training in relation to disruption activities. Is that right? Commissioner Keelty-That is right. But, in fairness to me, I have made the point that we have paid informants for information about the location of passengers and the activities of organisers. But no money has been paid to anybody specifically empowered to intervene. Senator FAULKNER-You have made the point that those people are not involved in disruption activities. I heard you make that point and I accept that. But now I am asking whether any moneys have been paid by the AFP for disruption activities. CERTAIN MARITIME INCIDENT CMI 1946 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-That is not the same question you asked before, with respect. You used the words `to anyone'. I think that is what you said. What I am saying is that the AFP paid no moneys to any government agency in Indonesia to have them disrupt the activities of people- smuggling organisers. We have paid informants. The payments that we made to the Indonesian National Police as part of the Law Enforcement Cooperation Program extended to things such as travel, training, equipment and the like. Senator FAULKNER-Let us look at the paid informants first. You said to me before that the paid informants are not involved in disruption activities. I just want to be clear on this. Commissioner Keelty-The paid informants provide information and that is what they are paid for. Senator FAULKNER-What controls or accountability are there on those moneys that are paid to the Indonesian police that you spoke of a moment ago? How do you know what they spend those moneys on? Or do you know? Commissioner Keelty-We do not pay money in cash to the Indonesian National Police. If someone has undertaken travel, we might purchase the plane ticket or, if someone undertakes to travel, we might reimburse the travel on sighting of the receipts. But there is no direct cash payment to the Indonesian National Police. If we provide equipment, we purchase the equipment to provide it. Senator FAULKNER-Is there any link that you are aware of between any funding and Indonesian authorities, mainly the Indonesian police, undertaking disruption activities? Commissioner Keelty-No. Senator FAULKNER-Are you aware of any others, outside informants and the Indonesian police, being paid moneys in relation to disruption activities? Commissioner Keelty-No, I am not. Senator FAULKNER-To your knowledge, have Indonesian authorities raised with any Australian agencies questions relating to the accountability and transparency of funds going from Australian agencies to Indonesian agencies? Commissioner Keelty-No, I am not aware of that. Senator FAULKNER-And you are not aware of any legal advice being generated in relation to those matters? Commissioner Keelty-No, I am not. Senator FAULKNER-To your knowledge, since the re-establishment of the MOU are the disruption activities in the same form as they were before? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1947 Commissioner Keelty-Yes. Senator FAULKNER-They are in the same form? Commissioner Keelty-Yes, as far as I am aware. Senator FAULKNER-Does the AFP receive DIMIA's intelligence notes? That is their description. Commissioner Keelty-Yes, we do. Senator FAULKNER-What part of the AFP do they go to? Commissioner Keelty-They go to the people smuggling team. Senator FAULKNER-That is the joint operation with DIMIA. In relation to intelligence reports you have about vessel departures and the like, how do you ensure that they are appropriately passed on to those who need to know about them, like Defence? Commissioner Keelty-The AFP prepares intelligence reports and they are disseminated. Other than that, it is by direct reporting from the people smuggling team to Coastwatch if that is necessary. Senator FAULKNER-Can you explain to me whether these reports that are coming in go first to the joint people smuggling team-the DIMIA/AFP outfit-or to Coastwatch? Can you explain to me how the process works? Commissioner Keelty-The AFP information goes to the AFP/DIMIA people smuggling team, who in turn assess the relevance of the information to the investigation of people smuggling. The people smuggling team then package the information relating to SIEVs in written form and disseminate it to Defence, DFAT, DIMIA, Coastwatch, Customs and the Office of National Assessments. Senator FAULKNER-From some of the evidence, particular Admiral Bonser's, it seems that Coastwatch is almost a go-between between the AFP and Defence. Do you think that is right? Commissioner Keelty-As I said, the people smuggling team would package the information and disseminate it to Defence, DIMIA, DFAT, Coastwatch, Customs and ONA, so I beg to differ there and say that the information we had was disseminated more widely. Senator FAULKNER-Has the AFP conducted any internal examination of its role in relation to the SIEVX issue? I have heard what you said about the possibility of legal action outstanding and the like; I understand that. But I am talking more about the effectiveness of the AFP's operational role. CERTAIN MARITIME INCIDENT CMI 1948 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-As part of a general review of how we handle all of our intelligence, we have looked at that issue but of course for us the SIEVX matter is not yet complete. But we do have what we call a post-operational analysis of operations that we conduct, and we will be reviewing this operation as part of that. But as I mentioned, the operation is not yet complete. Senator FAULKNER-So is there a review in progress, or is there the possibility of a review at some stage? Commissioner Keelty-Yes. Senator FAULKNER-Which of those would it be, or would it be both? Commissioner Keelty-It is not a specific review but we continually review the effectiveness of the systems that we have in place. There would be a post-operational analysis of this matter. Proceedings suspended from 3.52 p.m. to 4.03 p.m. CHAIR-Order! We are in possession of a quorum and will resume. I have a few questions that I would like to pursue, if I may. Mostly they are general questions but, Commissioner, I will come back to this date in September last year when the MOU between the Australian Federal Police and the national police of Indonesia was set aside for a period of time. When I arrive back at that I will be asking if you can give us any more precision about the actual date in September that that may have occurred. But, for the moment, I put that question at large up front because I can see that you are well attended with what is obviously a resourceful group of people. Can I come to the question of people-smuggling per se, in the knowledge that if I ask any inappropriate questions you will answer in the appropriate manner. Can you give us some idea of the size of the problem? For example, I have heard it said that the biggest cross-border crime in the world is drug smuggling, followed by people-smuggling, but people-smuggling is growing as an international crime. Can you give us some context about the nature of this crime and its international dimensions? Commissioner Keelty-Yes. As I understand, in any given year there is something in the order of three million people trying to cross borders illegally. We have statistics for our own experience of boats coming to Australia in the financial years 1989 to the present. I will not bore you with the statistics for the entire decade and a bit, but in 1989-90, we had three boats with 224 people on board; in 2001-02, we had 22 boats with 3,648 people on board; and, of course, since the disruptive effects towards the end of last year-I suspect this is on the public record-we have not had a boat since November last year. But in 2000-01 there were 54 vessels with 4,137 passengers. In 1999-2000 there were 75 vessels with 4,174 passengers. In terms of trends, I think your observation is right-it is a growing trend. In the crime sense people- smuggling offers less risk. If you smuggle drugs to Australia you have to have an infrastructure that will distribute the drugs, obtain the cash and then send the cash back to the person who exported the drugs. With people-smuggling the risk is transferred the other way. The money is paid up-front and, regardless of the destiny or fate of the people who are sent on their way, the organiser gets their money. We have seen incidents where drug smugglers have also dabbled in people-smuggling and vice versa. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1949 CHAIR-If I heard you correctly, in any one year there are about three million people worldwide who are being smuggled or who are open to the, I suppose, people-smuggling lords for transport. In the financial year immediately past, roughly about 4,000 of them came to Australia. Are we at the lower end of the scale in terms of the incidence of this crime? How do we put ourselves in context with the international situation? Commissioner Keelty-That figure that I used before also includes people who illegally cross borders. The department of immigration would be in a better position to answer more specifically on this, but the main problems in Australia up until recently were overstayers and people arriving unlawfully by air. In terms of the specific question about where we sit in relation to the rest of the world, just from my general knowledge I suspect we are not, certainly now, in a position of being the biggest problem area. We have seen, for example, the tragedies of people being smuggled in containers over the border between the United States and Mexico and between parts of Europe. So in terms of other parts of the world, I would say that we are not the biggest player. But you could see the trend in what was happening here. I mentioned, in response to questions by Senator Faulkner, that I went to Jakarta in September. I also went to Malaysia. There was a trend of people coming down the Malay Peninsula to Indonesia and then seeking to be moved across to Australia. Whilst that was seen to be an open option to them, it appeared that it was gathering momentum. I think I mentioned that, by IOM estimates, there are some 2,100 people still in Indonesia. The person who we suspect was responsible for SIEVX was responsible for some two per cent of the total number of people coming to Australia. I suspect, and I have discussed this with our analyst, that there was a displacement effect created once publicity was given to Operation Relex-those who would otherwise have accessed some of the more experienced people smugglers went to someone who I would describe as a less experienced people smuggler in terms of what we know here. I suspect that might be what created such a large number of people ending up on that SIEVX. CHAIR-Do you actively trade information with the FBI, the European law enforcement agencies and Interpol on how to combat this menace? Commissioner Keelty-Yes, we do. We hosted a working group meeting here in Australia about 18 months ago on people smuggling and we invited agencies from around the world to that. We have also attended similar types of meetings elsewhere in the world. The AFP is the Interpol agency in Australia and we do trade information regularly with Interpol. CHAIR-How lucrative is it? Commissioner Keelty-It is very lucrative. The latest figure we have is that it is worth about $US2,000 to $US3,000 for each person who can be smuggled here. CHAIR-That is clear profit, is it? Commissioner Keelty-It might not be clear profit. There would be some margins to be taken out of that but, as you can see by the nature of the vessels that arrive here, the infrastructure costs are not large. CERTAIN MARITIME INCIDENT CMI 1950 SENATE-Select Thursday, 11 July 2002 CHAIR-I think I calculated it from DIMIA figures that roughly-and this is rough-each SIEV was worth about $A1 million gross. Commissioner Keelty-I would agree with that figure. That is talking about boats from Indonesia. You might recall that previously we did have some experience of boats from China and elsewhere. CHAIR-Their overheads are, shall we say, light compared to that rake-off? Commissioner Keelty-That is correct. CHAIR-So this is a lucrative illegal activity? Commissioner Keelty-That is right. What makes it more attractive, as I said to you before, is the transfer of the risk. The mere fact that an organiser sits in another country while the fate of the captain and passengers of the vessel is unknown is a very vivid example of the transfer of risk. CHAIR-Indonesia is a developing country-I do not think that it would baulk at that description. In some of the places where these boats emanate from, there are subsistence fishermen and people living on low incomes. Does this sort of lucrative return create problems for policing in terms of corruption and so forth? Commissioner Keelty-Yes, it does. CHAIR-Are you able to say-and if you are not, please say so-what is the number of operators and what is the type of operation they have? Is there a `Mr Big' or are there several competing entities? Is there a two airline policy or is there a genuine competitive market here? Commissioner Keelty-Mr McDevitt might be able to give you a more precise answer but, while he is trying to find the material that we prepared on this, I will say that it is like drugs in that there is a finite number of organisers. Even though the problem seems to be amorphous, there is a finite number of organisers. Largely, that has been the focus of our intelligence and operations. I will ask Mr McDevitt if he can be more precise. Federal Agent McDevitt-As the commissioner said in his opening statement, we tend to try to focus our efforts on the major players-at the key facilitators of people-smuggling activities. These are the ones who actually market the opportunities. We have known them even to go to potential source countries to market opportunities for people to travel down to Indonesia and then across from there. We have been very successful in the last 12 to 18 months in taking out a number of these players. Here we are talking about people bringing significant numbers of people. We are seeking the extradition of one person to Australia at the moment in relation to 290 people on two vessels in 2001. We are currently seeking extradition of another key facilitator for the facilitation of two vessels carrying 396 unlawful non-citizens. A further person arrested by the people-smuggling team last year is charged with 34 people-smuggling offences relating to the arrival of approximately 1,700 people aboard 17 vessels. They are examples of major players who we have targeted successfully. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1951 CHAIR-They do not have any difficulty, do they, in getting boat crews, given the amount of money that they can offer? Federal Agent McDevitt-It is highly lucrative. It is about marketplace supply and demand. It does take a fair bit of organising, but a lot of these people do not place themselves at great risk of being caught. They will have a smaller fast vessel following them, and when the vessel is some hours or even days out from the destination point they will utilise people on board the vessel, give them some basic navigation training and basically say, `Point her in that direction,' and off they go. They will get on the smaller boat and return. So the risk is fairly low in that respect. CHAIR-In your opening statement, and as I reaffirmed a moment ago, you said that there were 2,100 people in Indonesia. Is that the total number in the pipeline or is the pipeline backed up beyond Indonesia? Commissioner Keelty-The pipeline is backed up in the Malay peninsula. I suspect that it is a moveable feast, in a way. As trouble occurs or as the push factors in parts of the world are created, then obviously the number is increased. CHAIR-Do you have any idea of the total number in the pipeline? Commissioner Keelty-No, I do not. CHAIR-Does the AFP have a broad knowledge of what tactics people smugglers will advise their passengers to pursue in the event of apprehension? I ask that question against evidence that was given to us that in Operation Relex it was obvious-I think this is not an unfair description of the evidence-that people smugglers were reacting to the Navy's tactics in trying to apprehend them by introducing a series of tactics of their own. I am really asking you whether you are aware of that in advance. Commissioner Keelty-Not so much in advance-we often interview the people who arrive in the country to obtain evidence against the organisers and incidental intelligence arises out of that. But in terms of specific tactics, in the absence of anything that Mr McDevitt might be able to say, I am not aware of any. CHAIR-Perhaps I can ask a more specific question. Commander Banks indicated that, in the case of SIEV4, people were expected to be wearing life jackets. When they came into view, so they were. Would you have known that sort of information-not in that particular incident, but generally? Commissioner Keelty-We are not generally aware of that. As I say, it is part of our job to interview these people for another reason. So we are perhaps not turning our mind to that sort of tactic. CHAIR-Let me ask you a broad question. Are you aware of any concerted or organised information being given to the passengers in these vessels to throw children overboard if apprehended? CERTAIN MARITIME INCIDENT CMI 1952 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-No, not specifically. CHAIR-You are not aware of that? Commissioner Keelty-No. CHAIR-Would you be aware of it? Commissioner Keelty-Only if it was provided to us in advance in relation to a specific vessel, but, obviously, we have seen incidents where the vessels that are obtained by the organisers are often vessels that are in a less seaworthy condition than a commercial vessel. If we can take it away from SIEV4 and SIEVX, our experience in Ashmore Reef has been that the passengers will basically be left for rescue. The trend was to get to Ashmore Reef and then put a hand up to be rescued and brought to Australia. Oftentimes those vessels were vessels that could not have got much further than Ashmore Reef, either in fuel or in the equipment that was on board. So we are generally aware of that tactic, but we have not received any specific information about throwing children overboard. CHAIR-And you have not reported that alleged tactic to any agency, including the People Smuggling Task Force? Commissioner Keelty-I would say no. CHAIR-When you say that you would say no, that is because you are confident? Commissioner Keelty-It is a `no'. CHAIR-The SIEVs dried up shortly after SIEVX. Would you know whether knowledge of the fate of SIEVX got passed down the pipeline? Commissioner Keelty-It did, because some passengers were, in fact, rescued. That was how we became aware of the ultimate fate of SIEVX. But, through our own sources, we are also aware that the stance that had been taken in Australia became widely known and that was having an impact. People were demanding guarantees, and some people who paid money actually withdrew from travelling. It created generally an atmosphere of concern by potential persons wanting to travel. Added to that, there was the arrest of a significant number of smugglers in Indonesia, Malaysia, Thailand, Cambodia and Sri Lanka. But the tightening of the visa regime and increased security vigilance at airports following September 11 also had an impact, because that fed back up the line. CHAIR-Let me just take you through this one step at a time. Knowledge of the fate of SIEVX was known in the pipeline. Did I understand you to say that? Commissioner Keelty-That is correct. There was wide media reporting in Indonesia of the fate of the people on board SIEVX. CHAIR-That would be a pretty powerful deterrent. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1953 Commissioner Keelty-Yes, I would assume so. CHAIR-I note the other tightenings that you have referred to, as well. I go back to that date in September when the MOU and the protocol that hung from that-I think that is the accepted way of describing it-was cancelled or set aside or suspended. Can you tell us when that happened? Commissioner Keelty-Unfortunately, I am going to have to take that on notice. However, I can indicate to you that I believe it was around September because I had made a special trip to Indonesia and Malaysia to try to regain the confidence of the INP and the Royal Malaysian Police in respect of what we were doing. CHAIR-What I was really asking was whether you could give us the day in September that it was suspended. I am not questioning the month. Commissioner Keelty-I might be able to get that easier than the closure date. If I cannot get the closure date while I am still giving evidence here, I undertake to give it on notice. CHAIR-I listened carefully to the answers you gave to Senator Faulkner-and I do not intend to rehash them-about the relationship between the AFP and the Indonesian National Police at the time of the setting aside-I think that is the right phrase-of this MOU. In summary, I understood them to be, and correct me if I am wrong, that the relationship was good; it was a functioning relationship and, as I understood the evidence, the MOU was set aside not because of anything in that relationship, but because of the intervention by the Indonesian department of foreign affairs and trade. Commissioner Keelty-That is correct. CHAIR-As I understand it, that was your evidence. Commissioner Keelty-That is correct. CHAIR-Are you aware whether the Indonesian department of foreign affairs and trade informed the Indonesian National Police why they had chosen that time to move on this MOU? Commissioner Keelty-No, other than, as I said to Senator Faulkner, that it seemed on the information and from my recall, and bearing in mind that I went up to visit my counterpart in Indonesia to discuss this very issue, that it was more to do with there not being a formal government-to-government head agreement to which the MOU could be linked. There appeared to be concern that there was a law enforcement agency memorandum of understanding that did not have a higher level government-not so much `approval', that is not the right word, but a head agreement to which that could be related. CHAIR-So putting it in my layman's language, you had an agency-to-agency agreement and the Indonesian foreign affairs department thought that the MOU should be set aside pending a government-to-government heads of agreement within which the MOU could then be embraced. CERTAIN MARITIME INCIDENT CMI 1954 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-That is correct. CHAIR-You are aware that the Norwegian container ship MS Tampa picked up 438 refugees on 26 August? Commissioner Keelty-Yes, Senator. CHAIR-And that SAS troops boarded the Tampa on 29 August? Commissioner Keelty-I was not specifically aware of the date, but I am generally aware of the incident. CHAIR-You are aware that the Prime Minister announced the Pacific solution on 1 September? Commissioner Keelty-That is correct, Senator. CHAIR-Could the intervention of the Indonesian foreign service be related to the fact that President Megawati would not take our Prime Minister's phone call about those events? Commissioner Keelty-That is totally outside my purview to be able to answer you. I can only say that I travelled to Indonesia-and I think the date of that travel was 17 September- and my recollection is that the protocol was set aside some time before that, because there were some negotiations before it was decided that it was necessary for me to travel to Jakarta to try to reinstigate the cooperation that we had had in place. I certainly could not link it specifically to the announcement by the Prime Minister on 1 September. My inclination-and I will check it for you-is that this might have been set aside earlier than that, because it seems to me that I would have responded very quickly if I had gone up there 17 days later. My recollection is that it had been an issue for a bit longer than that. CHAIR-It had been an issue before 26 August, when the MV Tampa picked up 438 refugees? Commissioner Keelty-I am advised that the INP did not have a reaction to remove the protocol as a result of the Tampa matter, but I am concerned about making sure that my answers are correct. There may not have been a formal setting aside of this protocol; it might well have been that we were informed that DEPLU wanted it set aside-because the MOU was not set aside. CHAIR-It was suspended. I think we agreed on that form of words. Commissioner Keelty-I would be more comfortable if I could find out from our Jakarta office the date that they were advised by the INP. CHAIR-The date is a matter of record, isn't it? It is a matter of fact; it is not a date that could be in dispute. It is just a matter of discovering what that date was. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1955 Commissioner Keelty-Yes, that is correct. I will undertake to get that for you. CHAIR-I should acknowledge that you are right in saying that it is not necessarily something that you as a witness can give evidence of, but it strikes me as exceedingly coincidental that there was this stand-off-temporary though it was-between Indonesia and Australia over the Tampa issue and the MOU got cancelled at about the same time. Commissioner Keelty-All I can say-and I think I said this to Senator Faulkner-is that we are almost asking what acted on the minds of the Indonesians, and I certainly cannot answer that. CHAIR-No. We might have to ask our ambassador if he is able to find out. Did you cause any question to be put through our post in Jakarta to the Indonesian foreign service as to why they had chosen to move in the manner in which they had in setting aside this agreement? Commissioner Keelty-No, and there is a reason for that. We would not do that. If we had an issue such as that, we would go through our own Department of Foreign Affairs and Trade. CHAIR-That is what I mean. Commissioner Keelty-We did not. We left it to the police-to-police relationship. CHAIR-It would have been an inconvenience though-given that, as I understand it, this was humming along nicely-for it to have been set aside, wouldn't it? Commissioner Keelty-I guess we were taken by surprise a bit, because things were working so well. As I mentioned in my opening statement, we had originally established an MOU with the Indonesians in 1995, and the fact that my response was a trip to Jakarta indicates that we had to put it back on track. CHAIR-Did the suspension of it in any way compromise any operations that you had on foot at that time? Commissioner Keelty-I will need to take advice on that. As I understand it, the answer is no. Part of that is because of the relationship we had developed over the period of time that we had been working with the Indonesian National Police. To give you an indication of the extent of that relationship, we maintained that even during the period that we were in East Timor. The policing relationship is a very different one from, for example, the defence relationship. In law enforcement, it is largely considered that we are all working to the one goal, particularly in terms of transnational crime. We were able to operate on the goodwill of the existing relationship but, as I said to Senator Faulkner, it became a little more tense. It was on a case by case basis as to which operations were going to be successful. There was some tension building within the Indonesian National Police itself about the funding that had been received by the INP task forces-these five teams that I mentioned to you-and how they were receiving training and equipment yet the other police who were tasked to do other work were not receiving this special treatment. That was a subject of discussions CERTAIN MARITIME INCIDENT CMI 1956 SENATE-Select Thursday, 11 July 2002 between me and the head of the INP to ameliorate any differences or tensions that that that might have been creating within the INP itself. CHAIR-If I can put it in the colloquial, inoffensively I hope: the coppers kept after the villains irrespective of what the foreign affairs department said about the agreement. Is that what we are talking about here? Commissioner Keelty-In a nutshell, that is right. CHAIR-There is something comforting about that, although I am not sure that over at Foreign Affairs they would feel immensely comforted by it. Commissioner Keelty-I certainly would not want my colleagues in Foreign Affairs to be offended by that either. CHAIR-So you did not have any current operations that were restricted by the suspension of the MOU? Commissioner Keelty-No. I have to say that my visit to Jakarta was well received, and we continued to receive cooperation. Might I add, in relation to Senator Collins's question, that the protocol was signed in September 2000, and in October 2000 training of Indonesian National Police commenced. Senator JACINTA COLLINS-What was that training? Commissioner Keelty-It was investigation training of people-smuggling operations, so that we could update them on what we knew about those types of operations. Senator JACINTA COLLINS-Was that conducted in Australia? Commissioner Keelty-It was conducted in Bali. In November 2000, the arrangement for funding of equipment and funding to members of the strike team commenced. Senator JACINTA COLLINS-What did that amount to? Commissioner Keelty-Could I take that on notice, please? I do not have the amount here in front of me. I might be able to get it while we are here giving evidence. Senator JACINTA COLLINS-Yes, and also the nature of the equipment. Commissioner Keelty-Certainly. CHAIR-I understood you to say that, with the Indonesian National Police, things were a little strained at this time. Did those strains reflect at all on operational matters? Commissioner Keelty-Whilst we still received cooperation, we needed to be very specific and very cautious about what we were asking the Indonesians to do. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1957 CHAIR-More specific and cautious than you would normally be? Commissioner Keelty-Yes. We are checking with Jakarta now to see whether we can give a more specific answer, but I know from the briefings I was receiving that we had to be more particular about the types of operations we were getting involved in with the Indonesians. CHAIR-They are at lunch in Jakarta at the moment, aren't they? Commissioner Keelty-They might be, but we should be able to get our people anyway-if they are good coppers! CHAIR-I do not doubt that they are. Commissioner Keelty-And I do not either; it is just that communication might sometimes be hard. CHAIR-I want to be clear about this: I heard you say earlier, and I may not have heard you accurately, that the MOU was not cancelled because of the Tampa. Did you mean to say that? Commissioner Keelty-Yes, I did. CHAIR-How do you know that? Commissioner Keelty-The Tampa was on 26 August, wasn't it? CHAIR-I am relying on the Weekend Australian report of 11 May this year, in which they have produced, kindly enough, a list of all the relevant dates and, interestingly, the Newspoll state of the parties on each of those dates as well. On 26 August 2001, they say: Norwegian container ship MS Tampa picks up 438 refugees after answering a distress call 139 kilometres off Christmas Island. Commissioner Keelty-If we are going off a newspaper report, I think we had both better be cautious. CHAIR-That is why I am giving you my source. I do not doubt this report, I must say. Commissioner Keelty-If that is the correct date, and the question is as you originally asked it, my answer is the same: I did not see a direct correlation between the Tampa and the setting aside. But that answer can come only from DEPLU. What I am trying to establish for you is the actual date we were informed, so that that might assist you in your conclusions about what happened. CHAIR-I am looking at this juxtaposition: I understood you to say that it was in September, but on 17 September you went to Jakarta to try to restore the arrangement, which would have put it in the first half of September, which was the business end of the Tampa event and when President Megawati would not take our Prime Minister's phone call. So the actual date of cancellation is of some interest to the committee. CERTAIN MARITIME INCIDENT CMI 1958 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-Yes, and I will attempt to get that for you. I have been advised-and this is supposition until I can confirm it for you; if I am wrong I will notify you as soon as I can-that the Tampa incident may have highlighted the fact that the Indonesian DEPLU was not aware of the extent of the operation of the MOU between us and the Indonesian National Police. Therefore, it may have had some impact in the sense that DEPLU then wanted the government arrangement to be at the higher level. CHAIR-That supposition has plausibility going for it in the sense that these events, which spotlight relations between Indonesia and Australia, caused the Indonesians to look more closely at the detail of the relationship and say, `Hey, there's a gap here.' The option would be to set forth and write a heads of agreement rather than to suspend your MOU, but they did choose to suspend it. Commissioner Keelty-The MOU remained in place; it was the protocol that was set aside. CHAIR-I am sorry if I am using loose language. It was the protocol that gave authority for the joint operations between the Australian Federal Police and the Indonesian National Police that was cancelled. Commissioner Keelty-Set aside. CHAIR-To be restored in June this year. Commissioner Keelty-That is correct. CHAIR-That is a gap of nine months, in fact. Commissioner Keelty-That is correct. CHAIR-I ask you again: you confirmed that you believed that the MOU was not cancelled because of the Tampa, but the supposition, which you will confirm as soon as possible-and I accept your undertaking on that-suggests that this may have triggered the re-examination of the relationship, doesn't it? Commissioner Keelty-That is correct. CHAIR-Would you stand by your earlier statement in the firm way it was put, or would you now want to modify it? Commissioner Keelty-I would like to modify that on the advice that I was just provided with. CHAIR-That sounds fair enough to me. I do not have any further questions at this point. Senator JACINTA COLLINS-I would like to go back to one report we understand the AFP gave to Coastwatch at 0930K on 20 October. I understand your reservations about wanting CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1959 to talk about the contents of such reports. From my end, I will seek to contain it to what is understood on the public record at this stage, if you can bear with me. Commissioner Keelty-I am happy to hear the question. But I point out that the reason why it might be difficult for me, even though these things are on the public record from other departments, is that we can be subpoenaed to give evidence in any prosecution that might occur in the future. That is why we might not be able to confirm or otherwise evidence given by other parties before the committee hearing. Senator JACINTA COLLINS-In terms of what has been said? Commissioner Keelty-Yes. Senator JACINTA COLLINS-Let us see if there is a way we can work through your constraints and what, in a sense, are public concerns about the nature of information that is already on the record. One of those issues is that, from the advice we have from Defence and from Coastwatch, we now have indications that AFP rang Coastwatch at 0930K on 20th and that a vessel was reported to have departed from the west coast of Java the previous day, 19 October. From Coastwatch, we have an indication that, when the advice about the vessel's alleged departure was provided to Coastwatch, the AFP officer providing the advice also offered a personal opinion that the vessel may be subject to increased risk due to the numbers reportedly on board. The nub of the question-and then you can tell me how, if at all, you can deal with this-is that the knowledge that appears to have been provided in that telephone conversation implies first-hand knowledge of the departure. The question is: if there was first- hand knowledge of the departure, why wasn't that message conveyed sooner? Commissioner Keelty-I can perhaps answer the question this way, and I do not think I need to take legal advice yet: no-one in the AFP knew of the departure of the vessel until after the survivors had arrived back in Indonesia. Senator JACINTA COLLINS-But they arrived back in Indonesia- Commissioner Keelty-In terms of confirming the departure of the vessel, if that helps. Senator JACINTA COLLINS-Confirming occurs at different levels. For instance, there is multisource material coming into the People Smuggling Task Force, so, as we heard earlier today, the information centre at Australian Theatre believed that that AFP call was corroboration. That would not necessarily be known by the AFP, but it was part of the multisource data. Commissioner Keelty-Let me step aside for one minute and talk to you in hypothetical terms. Hypothetically, what might occur is that the AFP receives information in Jakarta that a vessel was to depart on a particular day. As I said in my opening statement, we have lots of that sort of information and you would get stop start, stop start, yes no and no yes. Finally, a vessel might depart. But the only time you would confirm that a vessel had departed would be when it was intercepted. CERTAIN MARITIME INCIDENT CMI 1960 SENATE-Select Thursday, 11 July 2002 Hypothetically, the other way you might get confirmation-certainly, from the way we might have been operating-is when first-hand information came back: if the vessel was not intercepted, and people who were passengers on board that vessel arrived back in Jakarta. The actual question you are asking me does fall within the ambit of the specifics I cannot give, and that really is only because of the nature of the AFP witnesses. Senator JACINTA COLLINS-Are you saying, in part, that the information that was conveyed on 20 October, which was before the survivors got back to Indonesia, hypothetically, did not reach that standard of information? Commissioner Keelty-Can I just get some legal advice? Senator JACINTA COLLINS-Yes. Commissioner Keelty-It goes to other evidence about the issues that are on the public record and about which we have been advised not to provide evidence today. Senator JACINTA COLLINS-Some intelligence that was obviously available from the AFP-and some of it implies first-hand knowledge of the departure-took two days to be received by Coastwatch. Is there a more general way in which you can explain that delay? Commissioner Keelty-I know what you are asking. If we go to when information was received by the AFP, and when that information was then conveyed to other agencies specifically, then that falls within the area that may be used in future prosecutions. What I can say generally is that, often, the departure points were unknown and not confirmed until persons were intercepted. They then advised, when they were interviewed, what their departure point was. I still do not think I am answering your question and I am not sure I can. I know what you are asking, but to answer that question we would have to go to the specifics of what we were told, when we were told and whom we told. Senator FAULKNER-Is there a logical inconsistency here? If the AFP and the AFP informant can say something about the condition of a boat and the possible numbers who are embarking and so forth then surely, with that level of information, the issue of departure dates and times must be something that is possibly available? Commissioner Keelty-I do not think you were in the room when Senator Collins originally asked the question. It is not so much a general question; it relates to a specific date-20 October. That is the difficulty I have. Senator FAULKNER-But my point goes to what occurs on 20 October. What we have available to us on 20 October is the information from Rear Admiral Bonser. He is clarifying evidence given to this committee on 17 June. Are you aware of that? The evidence stated that when the advice about the vessel's alleged departure was provided to Coastwatch by phone, the AFP officer providing the advice also offered a personal opinion that the vessel may be subject to increased risk due to the numbers reportedly on board. Commissioner Keelty-The answer that I am giving is that the AFP cannot answer that question because of the reasons I outlined in my opening statement. It is something that pertains CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1961 uniquely to the AFP because of the role we have within the criminal justice system. It is not something that is being put up as a barrier. I hoped that you might have gleaned from the opening statement that there is nothing that the AFP knew, at any time, that it could have provided to any agency that would have resulted in the saving of the lives of the people on board that vessel. Similarly no-one the AFP knows- Senator FAULKNER-I am not saying there is. Commissioner Keelty-I am trying to help and there is nothing that the AFP knew then, or knows now, that would specifically tell us where the vessel sank. Senator FAULKNER-Do we know who the AFP officer who provided those details was? Commissioner Keelty-Yes, I do. Senator FAULKNER-Could you share that with us? Commissioner Keelty-It was an analyst attached to the people-smuggling team-Federal Agent Kylie Pratt. Senator FAULKNER-The reason I ask-because normally I would not-is that the officer providing the advice also offered a personal opinion. In this particular instance, according to the evidence we have from Admiral Bonser, a personal opinion was offered too. I think I understand what that qualification means. What do you understand that to mean? Commissioner Keelty-Exactly what it says: in his evidence-not the AFP's evidence, in his evidence-Admiral Bonser pointed to the fact that the analyst made an observation. Senator FAULKNER-Did the AFP consider there might be a possible safety of life at sea situation? Commissioner Keelty-I will just get some advice on that. I am advised that the answer to that question falls into the category of concerns identified by me in my opening statement. Therefore, I am unable to provide an answer. Senator JACINTA COLLINS-I want to make sure I understand properly what you are saying. You said that the AFP was not aware-perhaps you can take me through it again-until after the people had been returned to Indonesia. Can I have the precise wording? Commissioner Keelty-What I said earlier in the opening statement-in fairness to you, I do not think this was in the original answer that I gave to your question-was that all information that may have led to a conclusion that the passengers of SIEVX were in danger was obtained after the vessel had in fact sunk. Senator JACINTA COLLINS-So all of the information that may have led to the conclusion that SIEVX was in danger was not obtained until after SIEVX had sunk? CERTAIN MARITIME INCIDENT CMI 1962 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-That is correct. Senator JACINTA COLLINS-Some of that is just a matter of logic. If some of that information was gathered from survivors, it simply follows that the concern is that some of that information was available earlier. Commissioner Keelty-There may have been conjecture. If I can just go back to hypotheticals. Senator JACINTA COLLINS-Yes. Commissioner Keelty-If the situation was that the first we actually had confirmation of a vessel departing was in fact when it was intercepted then it follows that if a vessel was not intercepted by the due date, or by the due time, someone might express concern about what happened to that vessel. If we had 12 vessels over a period of time and we were getting information about the possible departure dates and therefore possible arrival dates, if you knew that vessel A left on the first of the month and should have arrived by the third and it does not, you might conclude that there is either a problem with the vessel or that it did not depart. What often happened in these events was that information was gathered that a vessel would depart on a particular date and in fact they never departed at all. But it is possible that you might provide conjecture, `Well, there's a missing vessel here; it has either not arrived because it didn't depart, or it has not arrived because it sank.' Senator JACINTA COLLINS-Did the AFP know of the departure of this vessel from intelligence from its departure, at the time of its departure? Commissioner Keelty-I will leave it to you, but do you mind me not talking about this vessel but talking about vessels generally? Senator JACINTA COLLINS-Yes. Commissioner Keelty-We had a series of information about a series of vessels. Because of the imprecise nature of the information that we were getting, many of them had planned departure dates that never eventuated. So the only real way we ever knew that they had in fact departed was when someone announced their arrival, whether that be through interception by the Navy, arrival at Christmas Island or Ashmore Reef. Senator JACINTA COLLINS-Yes, but in your comments earlier you went a bit further than that. You said that if they do not arrive then you may find out information with respect to concern about them not arriving. Commissioner Keelty-Yes, that is right. It might run out of fuel; it might be just floating. But, if passengers were then returned from whence they came and the information came back that the other passengers drowned or whatever, because we do not have any surveillance technology, the only real way we were dealing with anything was through human sources; it was by word of mouth. Any confirmation that we had of any event was really by word of mouth from somebody at either end. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1963 Senator FAULKNER-Could you explain why you felt you were unable to answer my question about whether the AFP considered there may be a possible safety of life at sea situation? I have just had a chance to look again at the opening statement that you made and I really do not understand how my question could compromise any of the principles that you outlined in that particular opening statement. Commissioner Keelty-In the absence of the chairman- Senator JACINTA COLLINS-We have the deputy chairman at the moment. Commissioner Keelty-Deputy Chair, I am in a difficult position now because Senator Faulkner is in fact going to the heart of the legal advice that I just received. I take objection to that and I think we might need to receive advice on that from the Clerk. ACTING CHAIR (Senator Brandis)-Can I hear your question again, Senator Faulkner, please? Senator FAULKNER-My question relates to a response from the commissioner to an earlier question I asked in relation to a follow-through on some issues that were raised about the AFP and, if you like, intelligence reporting on the 20th. We will see if the commissioner agrees with this summation. I had asked who made a phone call to Coastwatch which contains, as we know from the information available to us, a personal opinion, if you like, given about the increased risk as a result of the numbers on board. Do you think that is a fair summary, Commissioner? And then I asked- ACTING CHAIR-Before you go on: Commissioner, did you hear what Senator Faulkner said to you? Senator FAULKNER-I am just trying to summarise it. Then I asked if the commissioner thinks that is a fair summary of the context where the AFP considers that there might be a possible safety of life at sea situation. Going back and having a quick look at Commissioner Keelty's opening statement, I am a little at a loss to understand how that impinges on those principles, that is all. ACTING CHAIR-What was the question? Can we hear the question again, please? Senator FAULKNER-I cannot repeat my question precisely. ACTING CHAIR-No, but the substance of it. Senator FAULKNER-It was to the effect that I failed to understand how the principles that the commissioner outlined in his opening statement could be affected by my question about whether the AFP considered there might be a possible safety of life at sea situation. That may be governed to some extent, I suppose, by my thought that the commissioner, who has answered carefully questions asked of him, could venture into areas that might concern him. I am a little surprised at that, looking at those principles outlined in the opening statement. My question went to how the commissioner might feel that those principles would be impinged upon by him answering the question I asked. CERTAIN MARITIME INCIDENT CMI 1964 SENATE-Select Thursday, 11 July 2002 ACTING CHAIR-Commissioner, what did you want to say? Commissioner Keelty-The question rather than the statement made by Senator Faulkner goes to the heart of the legal advice that I am receiving about the questions that I can answer. I am objecting to the question because it is asking me to provide basically the legal advice I have just received as to why I cannot answer the question. Let me make this clear: I understand absolutely-or I think I do-where Senator Faulkner is coming from, and I am frustrated by this, but the issue is that once I go into answering any of these questions about the specific details of the matter, it opens up the evidence that will possibly be provided later on. ACTING CHAIR-Do I understand your concern to be that, by opening up those areas, the limitations on your capacity to provide information to the committee might be impinged on? Commissioner Keelty-That is right. ACTING CHAIR-I understood Senator Cook, at the outset, to say on behalf of the opposition senators that he adopted what I had said on behalf of the government senators in relation to respecting the limitations which Commissioner Keelty had foreshadowed. He, knowing what none of us know, has advertised to us that he considers that those limitations could be overstepped if he responded. In those circumstances-and we respect the integrity of the officer-we have to respect his judgment as to how those limitations would apply to the line of inquiry you are now proposing to pursue. Senator FAULKNER-No-one is reflecting on the integrity of the officer at the table. Senator BRANDIS-I am not suggesting that you are. Senator FAULKNER-No-one is, and that is fair enough. It is true that the commissioner sought some advice on this and received some lengthy advice, it is fair to say, in relation to this-I would acknowledge that-and indicated in his answer that he was advised that this might be affected by those matters raised in his opening statement. I have asked a lot of questions today; this is the only one that I think the commissioner has been concerned about in terms of the constraints that he outlined he was operating under in his opening statement. This is the only question I have asked that has caused concern for those reasons. Senator BRANDIS-I think that we have to accept what the commissioner says at face value. If you want to pursue the matter and the commissioner persists with his objection then it is a matter for you to, I suppose, seek to convene the committee in private session to seek to compel an answer. Senator FAULKNER-Not at all. Senator BRANDIS-Or you might, in the exercise of your discretion or judgment, decide to leave it alone. Senator FAULKNER-It is because I am exercising discretion and judgment that I asked a question that went to trying to understand precisely how the limitations applied to the question I asked, because I did not see the limitations so applying. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1965 Senator BRANDIS-I am just not sure whether it is appropriate to, as it were, collaterally attack the way in which a witness declares that there are limitations, which we all accept are proper, that would be overstepped by the question. The witness has said that. We, I think, accept at face value what he says, and that is really the end of the matter, Senator Faulkner, unless you want to-and this could only be done in a private session-press or propose to the committee that- Senator FAULKNER-No, I do not, because we all understand at these committees that answers to questions often beget further questions. That is why I have asked the question I did as a follow-up, of how the limitations may have applied to the questions that I asked, because I frankly do not understand how they could. Senator BRANDIS-Well, the witness does- CHAIR-My understanding of the situation-I do not know what the question was and I would not mind knowing what the question was, and I apologise for being out of the room at the time-is, (a), we have been reluctant to go in camera because we believe that this ought to be a public inquiry and, (b), even if we did, then the same limitations apply. Senator FAULKNER-I am not suggesting we go in camera. CHAIR-I know, but a suggestion has been made and I am just dealing with that suggestion in those terms. Can someone tell me what the question was? Senator FAULKNER-Let me ask the question in another way and see if this can elicit a response. I will move off that question, Commissioner, and try again. It is true that the AFP rang through to Coastwatch at 9.30 a.m., from memory, on the 20th. Senator JACINTA COLLINS-He does not want to confirm that. Senator FAULKNER-You do not want to confirm that? Senator JACINTA COLLINS-But he will not argue with you, so frame your questions in such a way that it does not seek such confirmation. Senator FAULKNER-That information has already been given in evidence before the committee. Senator JACINTA COLLINS-Yes, but not by AFP. Senator FAULKNER-No. I will, nevertheless, ask the question, because I hear what Senator Collins says to me. Are you able to confirm that the AFP rang through to Coastwatch at 9.30 a.m. on 20 October in relation to some information about SIEVX? Commissioner Keelty-The answer to that is no, Senator, because it falls within the area of objection that I have already made. CERTAIN MARITIME INCIDENT CMI 1966 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Are you able to confirm to the committee that there was intelligence reporting that some asylum seekers did not get on the vessel and that around 400 were on the grossly overloaded vessel? Are you able to confirm that? Commissioner Keelty-I am not able to answer the question, because it falls within the category of questions under objection. Senator JACINTA COLLINS-Mr Keelty, I will take you back to what is on the record. From answers to questions on notice from Rear Admiral Bonser, we are told that the primary source of information about possible departures of SIEVX from 19 October was the Australian Federal Police. Did the Australian Federal Police provide intelligence regarding SIEVX prior to the phone conversation reported by Coastwatch on 20 October? Commissioner Keelty-The evidence given by Coastwatch is evidence by that body. I cannot give evidence about SIEVX, because it falls within the area of objection. Senator JACINTA COLLINS-But this is not a question about evidence regarding SIEVX; this is a question about whether the AFP provided intelligence-not the detail of it, but simply whether you provided any-prior to that phone conversation on the 20th. Commissioner Keelty-The phone conversation on the 20th does relate to SIEVX and, if I understand your reference to the evidence from Admiral Bonser, you are asking me to confirm what the AFP was doing in relation to the provision of intelligence regarding SIEVX. I cannot answer that. In answer to questions Senator Faulkner asked earlier I outlined the general procedure, which was this: we would provide, through the people-smuggling team, information that was in our possession to a range of agencies, including Coastwatch. Senator FAULKNER-You could then answer the process question of whether you believe it was correct procedure to ring Coastwatch and give them the advice regardless of what the advice was. I am not going to the nature of the advice here; I am going to the process. Commissioner Keelty-That is right, Senator. Senator FAULKNER-Who do your most senior AFP officers in Jakarta report to? Commissioner Keelty-Mr McDevitt answered that earlier, Senator. They answer to the Director of International Operations. Senator FAULKNER-How did that get fed to Federal Agent Castles or whoever may have been representing the AFP on the task force? Commissioner Keelty-He was at the time Director of International Operations, as I recall, but I do not want to mislead you. If Jakarta had information specifically about a people- smuggling issue they would send that directly to the People Smuggling Task Force and the Director of International Operations would receive their briefings from the task force. So it would not actually go via Mr Castles to the task force; it would go straight to the people- smuggling team and Mr Castles would be briefed on a raft of things that the people-smuggling team was doing before he would go to the IDC meetings. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1967 Senator FAULKNER-Have you been able to establish the precise times that the protocol was frozen for? Commissioner Keelty-Yes, I have. Senator Cook asked that question. We have checked with Jakarta. It was on 12 September 2001. A senior officer of the INP advised our senior liaison officer in Jakarta that the protocol attached to the MOU no longer had effect. There was no formal notification provided in writing by the INP or, for that matter, any other Indonesian authority. Senator FAULKNER-How long was the protocol in operation before it was frozen? Commissioner Keelty-I have answered that question before. It was September 2001. Senator FAULKNER-Did the status of the MOU change at all during 2001? Commissioner Keelty-No. Senator FAULKNER-That remained in place? Commissioner Keelty-That is correct. Senator FAULKNER-What was the date when the revamped protocol was back in operation? Commissioner Keelty-It was 13 June 2002. It is incorporated in the new MOU. Senator FAULKNER-Effectively there has never been a new protocol? Commissioner Keelty-That is correct. CHAIR-Are you aware that 12 September is the day after Justice Tony North ruled, in the Federal Court, that Tampa asylum seekers were detained illegally? Commissioner Keelty-I was not but I am not questioning your advice. CHAIR-When the protocol was suspended, was there any specific condition in the suspension that any current ongoing operation was to continue? Was there any provision in the suspension that allowed a criminal detection to not be suspended if there was a current operation? Commissioner Keelty-If I am wrong, I will correct my evidence, but from what I am being advised here-which has come from Jakarta in the time that we have been sitting here-it appears that it was a telephone call from a member of the Indonesian National Police to the senior liaison officer, saying that the protocol had been set aside and no longer had effect. I suspect that there was not much more than that-saying that it had been taken out of play. Senator FAULKNER-Were no reasons given? CERTAIN MARITIME INCIDENT CMI 1968 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-No, not to my knowledge. It was-I think I do recall this-an edict that had come from DEPLU to the INP. CHAIR-We established earlier, Senator Faulkner, that it occurred in and around the time of the Tampa incident, when President Megawati would not take a phone call from the Prime Minister. Senator FAULKNER-Yes. I was aware of the timing. I am interested in understanding whether any reasons were given at the time of the verbal exchange between the officer of the INP and the senior liaison officer of the AFP. I imagine, if I were an AFP officer-I can only dream-and someone rang me and said that- CHAIR-You would probably pass the height test! Commissioner Keelty-We do not discriminate on the basis of height. CHAIR-Then I can dream as well! Senator FAULKNER-In that situation, I would probably ask why. Commissioner Keelty-I understand what you are saying, but you are now putting me in the position of the person who received the information. Senator FAULKNER-Let me not ask you that unfair question. If I were the Commissioner of the AFP, and the senior liaison officer in Jakarta told me that an INP officer had just rung to say that this thing had been, effectively, laid aside or cancelled, I would probably ask why. Commissioner Keelty-I am just trying to recall my earlier evidence to the chair when you were out of the room, Senator Faulkner. I think I conceded that it was around the time of a number of events here in Australia, those being the Tampa, the decision by Mr Justice North and other events. Senator FAULKNER-I heard that on the monitor. But can you say why? So we are clear: can you say why the protocol was laid aside? Commissioner Keelty-I cannot but I will acknowledge that it coincided with a number of events here. Whether that was the reason, as I have said to you in answers earlier this afternoon, the only people who can really give that answer are DEPLU. Senator FAULKNER-Can I ask you specifically whether, at any stage, you heard that Indonesian immigration authorities had objections to the nature of the work being undertaken between the AFP and the INP. Did you ever hear that? Commissioner Keelty-I have not, but I will take some advice on that. No, we are not aware of that. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1969 Senator FAULKNER-Let me be clear on this. Has anyone, at any stage, raised with you that a possible reason for this was aspects of the disruption program? Commissioner Keelty-I mentioned to Senator Cook earlier that there was some disquiet within the Indonesian National Police about the way the disruption teams-or the strike teams, as we called them-were being funded, equipped and trained by the AFP. That was causing a tension within the INP because of the disparity in what other people in the INP were getting in terms of equipment and other resources. I am aware of that tension, but I was not aware of the immigration issue that you raised. Senator FAULKNER-On the second issue, which is the one that you briefly canvassed a little earlier with my colleague, something that I was asking about earlier on this afternoon was whether there was any concern with aspects of the disruption program. Could you just detail for the committee more of those concerns about the financing issue that you have just raised so that we have a better understanding of it? Commissioner Keelty-There are two questions there. I will answer the last question first. As I understand it, there was disquiet emerging from within the Indonesian National Police in places, particularly around the Kupang area where the police do not consider themselves well resourced. They could not understand why their colleagues in the same organisation were being better resourced than them. The better resources included equipment and training and, no doubt now, extends to the fact that they will be receiving vessels. The subject of the conversation that I had with the head of the Indonesian National Police was that it was not intended to create that tension within his own organisation. Senator FAULKNER-Are these better resources only limited to equipment and training? Commissioner Keelty-No. I think it extended to travel, because we obviously needed the teams to travel. I need to take advice. I think I said that I would undertake to provide a comprehensive answer on how much was paid under that Law Enforcement Cooperation Program and what it was paid for. If I can provide that to you, I would rather do that than guess any further than I have already done. The writing gets smaller. In October 2000 we provided three items. That was the month after the commencement of the protocol. It was a one-week investigation training that took place in Bali. It was conducted by the AFP. The cost of that was $18,500. Minor equipment for the teams cost approximately $5,000. Communications and IT equipment for the INP teams-these were the five teams-cost $12,000. From my own recollection I think it extended beyond that. This obviously does not refer to travel, unless the travel is part of the training. Senator FAULKNER-Some of that travel was to Australia? Commissioner Keelty-I think it was. Can I take that on notice? I will undertake to give you a full and comprehensive run-down of what that money was spent on and how much was spent. Senator FAULKNER-Can you tell me when travel took place to Australia? Commissioner Keelty-If I can do it as part of that response, yes certainly. CERTAIN MARITIME INCIDENT CMI 1970 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Would any of it have taken place around the time of the Olympic Games in Sydney? Commissioner Keelty-That was September 2000. Under the protocol, which was not signed until September 2000, I do not recall any visits from Indonesia. In fact we stopped visits because of the commitment we had to the Olympics. If I am wrong, I will let you know. Senator FAULKNER-You will provide us with a complete breakdown of AFP expenditure in relation to the disruption program? Commissioner Keelty-Yes. Senator FAULKNER-I am keen to see it disaggregated as much as it can be so I can try and understand what some of these concerns that caused the cancelling of the protocol were. Commissioner Keelty-I am not saying that the protocol was cancelled because of the funding arrangement but I am happy to provide- Senator FAULKNER-I am not saying that you are either. You said that there was disquiet in the INP about it. Those were your words. Commissioner Keelty-Yes, but you just linked it to the cancelling of the protocol. I have not linked it. Senator FAULKNER-I am trying to find out from you why the protocol was cancelled. Earlier on today when I was asking you I was- Commissioner Keelty-I thought you were asking about the extent of expenditure by the AFP on the INP. If you are linking it to the cancellation or the setting aside of the protocol, I am telling you that the two are not linked. Senator FAULKNER-So disquiet in the INP about that did not lead to the cancelling of the protocol? Commissioner Keelty-In my belief that is correct. Senator FAULKNER-Are you able to say what did lead to the cancelling of the protocol? Commissioner Keelty-No, I am not. I am saying that it was not that. Senator FAULKNER-Did anyone raise Mr Enniss's role when the protocol was cancelled? Commissioner Keelty-Not to my knowledge. I would have thought that if that was the case then I would have been told previously. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1971 Senator FAULKNER-Did anyone in the AFP seek to establish through either direct channels with the INP or indirectly through Australian agencies, such as the Department of Foreign Affairs and Trade, why the protocol was cancelled or what the concerns were? Commissioner Keelty-The answer to that is no. It is up to another agency as to whether they provide you with support or not. If the INP were told by their department of foreign affairs equivalent that they were to set aside the protocol then that is what they did. It was not for us to search for a detailed response, because things like this rely on cooperation and goodwill. We cannot then start to point the finger at them and say, `The cooperation and goodwill have gone out the door. Why have you done that?' Senator FAULKNER-I am not suggesting you would point the finger. I am suggesting, however, that it would not be unreasonable for you to ask why. I think a reasonable person would say, if a protocol had been cancelled at such a sensitive time between the AFP and the INP, that the senior officers of the AFP might say, `Why?'-if not to the INP, if that was not deemed appropriate because you had heard that this had occurred as a result of a decision of other agencies in Indonesia, then certainly to the foreign affairs bureaucracy in Australia. I find it incredible that no-one would ask why. A protocol between Australia's police force and the Indonesian police force that has been in place for quite a long time is cancelled, laid aside, we are told it is no longer operative-and nobody asks why. Commissioner Keelty-That is a statement not a question. I have not said that nobody asked why. Senator FAULKNER-Did you ask why? Commissioner Keelty-If I did, it would seem to me that the answer to the question lies with DEPLU and not with us. If the INP tell us that the protocol has been set aside, we then recognise that we are operating under a different environment and we get on with it. Senator FAULKNER-Commissioner, did you ask why the protocol was cancelled? Commissioner Keelty-I do not specifically recall. Senator FAULKNER-You do not know if you asked why? Commissioner Keelty-I answered you. I do not specifically recall. Senator FAULKNER-Do you know why the protocol was cancelled? Commissioner Keelty-I have said no. If there is anything in any of the documentation that exists anywhere in the AFP, I undertake that I will come back and tell you why. I answered Senator Cook and I acknowledge that there were events occurring at the time that might or might not be linked, but they are not for me to answer about. Senator FAULKNER-You can assure me that at no stage did the Australian Federal Police, at any level, seek legal advice over any aspect of the dismantling operation? CERTAIN MARITIME INCIDENT CMI 1972 SENATE-Select Thursday, 11 July 2002 Commissioner Keelty-No. Senator FAULKNER-You can give me that assurance? Commissioner Keelty-I said no. Senator FAULKNER-You cannot give me that assurance? You did before-or I thought you did. Why can't you give me that assurance? Commissioner Keelty-Perhaps if you asked the question again. It might help if you don't ask ambiguous questions. I am trying as best I can to assist this committee. I find, quite frankly, that this conversation is taking neither of us anywhere. The protocol was set aside. If there was a reason recorded in the AFP as to why the protocol was set aside, I will undertake to give that reason to the committee. Senator FAULKNER-I appreciate that. I do not think my questions are ambiguous; I think they are very clear. But if you find them ambiguous I am more than happy to try and assist you and the committee to make them even clearer. I was seeking to find out whether you are able to give the committee an assurance that at no stage, at any level of the AFP, was legal advice sought about the nature of disruption activities. Commissioner Keelty-The answer to that is no. I gave that answer earlier this afternoon. Senator JACINTA COLLINS-Is that: `No, no legal advice was sought' or `No, you could not give the assurance'? Commissioner Keelty-That is the problem with the question. The question has been- Senator FAULKNER-I am asking you to give me an assurance-anyway, I think my question was clear. Let me ask it again. Was any legal advice sought at any level of the AFP on any aspect of the dismantling operation? Commissioner Keelty-No. Senator FAULKNER-Thank you. Senator JACINTA COLLINS-Perhaps I will move on to a different issue. You may or may not be able to answer this. In the minutes from the People Smuggling Task Force-Jane Halton's IDC-on 21 October, one of the dot points under a subheading relating to SIEV6 says: Commander NorCom to talk to Bill Taylor AFP and HMAS Arunta-Defence has attached AFP paper. Do you know what that paper would have been? Commissioner Keelty-Can I have the date again, please? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1973 Senator JACINTA COLLINS-It was 21 October. Mr Castles was in attendance for the AFP, if that helps. Commissioner Keelty-I now have some notes for the meeting. What was your question about the meeting? Senator JACINTA COLLINS-Under the heading of SIEV6, the fourth dot point down refers to an AFP paper. Are you able to tell the committee what that paper was in regard to? Commissioner Keelty-I am just checking, but it seems that it could be a people-smuggling team intelligence report. Senator JACINTA COLLINS-This is the AFP-DIMIA people-smuggling team? Commissioner Keelty-That is correct. Senator JACINTA COLLINS-What is the report on? Commissioner Keelty-The people-smuggling team put out a series of intelligence reports. I am sorry-it appears that it is possibly a paper relating to logistical issues on Christmas Island. Senator JACINTA COLLINS-I want to try another issue in a way that we have sought to do in the past-that is, hypothetically. Were the AFP to become aware of intelligence that a 20- odd metre vessel had departed and was heading toward the Sunda Strait in order to travel through the strait with 400 people crammed into a vessel of this size rather than the normal 200- odd people-and with some people having refused to board this grossly overloaded vessel- would the AFP regard that as a likely SOLAS situation, hypothetically speaking? Commissioner Keelty-Hypothetically, yes-we would report through any concerns we had that were within our knowledge. Senator JACINTA COLLINS-But would you be reporting it as a concern regarding safety of life at sea? Commissioner Keelty-Hypothetically, if we became aware that there was an issue about safety of life at sea, the answer is yes. Senator JACINTA COLLINS-I am asking you whether, hypothetically, the AFP would regard the case of a 20-odd metre length vessel with some 400 people on board-rather than the standard 200-odd that, historically, we know had been put on such a vessel-as a safety of life at sea situation. Commissioner Keelty-If we knew those things, the answer is yes. Senator JACINTA COLLINS-Going back to my earlier question about whether the AFP was reporting intelligence regarding SIEVs from around 19 October, was there some reason that CERTAIN MARITIME INCIDENT CMI 1974 SENATE-Select Thursday, 11 July 2002 intelligence would have come from DIMIA earlier and then, as of 19 October, started coming from the AFP? Commissioner Keelty-No. If it was coming from the AFP it was coming via the people- smuggling team. DIMIA often processed some of the intelligence that was coming from us and other agencies and reproduced a composite of that intelligence. There is no real reason why it would necessarily have been changed from DIMIA to the AFP. It might well be that there was a reason like the AFP being the only source of the information at a given period, but I do not think there is anything in that that I can specifically pick up. Senator JACINTA COLLINS-So the report, if it were true, that a phone call directly between AFP and Coastwatch occurred on the 20th would be extraordinary rather than ordinary? Commissioner Keelty-As I understand it, the people-smuggling team regularly contacted Coastwatch, so it might not be that extraordinary. Senator JACINTA COLLINS-Ordinarily the people-smuggling team contacted Coastwatch rather than the AFP directly? Commissioner Keelty-That is correct. The AFP contact with Coastwatch was via the people-smuggling team. Senator JACINTA COLLINS-Ordinarily, or on that occasion as well? Commissioner Keelty-Ordinarily. Senator JACINTA COLLINS-I did not think you wanted to talk about that occasion specifically. Commissioner Keelty-Sorry. I do not know what occasion you are talking about, but- Senator JACINTA COLLINS-Ordinarily? Commissioner Keelty-Ordinarily. CHAIR-Let us go back to the suspension of the protocol hanging off the MOU, which now has a heads of agreement to hang from in its entirety. This was the one set aside on 12 September. As I understand it, the practical on-ground effect of that set-aside was zero. The operations continued unimpeded-that is, coppers chasing villains continued unimpeded. Is that right? Commissioner Keelty-That is right, except that we were very specific about what we were asking to be done and why. CHAIR-You were more precise and more specific about what you asked the Indonesian National Police to help you with? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1975 Commissioner Keelty-That is right. I think I mentioned before that we were careful to ensure, in terms of the wider relationship with the INP, that we were dealing with transnational crime issues, not focusing solely on people-smuggling. CHAIR-Australians at home, in their beds at night, would not toss and turn thinking that maybe there was any diminution by the AFP in the effort it was putting out to curb people- smuggling. They could be assured from what you are saying that there was none? Commissioner Keelty-That is right. To shore that up I then travelled to Jakarta, it would seem now within- CHAIR-To revive the agreement. I think it was. Commissioner Keelty-To revive the agreement, and to strengthen the relationship and confirm what could be done, or not done, between us. CHAIR-Am I right to assume therefore that the set-aside-for want of a better description-was an argument between diplomats rather than an argument between policemen? Commissioner Keelty-Yes, that is correct. The subsequent advice that I have been given from Jakarta is that there needed to be a government-to-government head agreement put in place before it was allowed to continue. CHAIR-That being the case though what I am coming to is that, for all intents and purposes, apart from you being more specific and more definitive, which I take to be the same thing really, about your requests to the Indonesian National Police, operations continued normally. Commissioner Keelty-That is correct. CHAIR-Senator Faulkner was asking you earlier about disruption activities-I think that was what he called it; I think they were your words and he used them to describe this class of activity. They continued unabated? Commissioner Keelty-They continued and they were constrained by the arrangement. Both sides were conscious that the protocol had been set aside. To say that it continued unabated might be giving it too positive a description; in fact we relied more heavily upon processing information as opposed to getting the teams on the ground until we could satisfy the concerns of the DEPLU. CHAIR-So then it is not right to say that there was no impediment to your operations. The disruption activities, for example, the issue that we are focusing on now, were not of the same quality or character after the cancellation as they were before it? Commissioner Keelty-I am trying to think of specific operations. I will take some advice on that. Just so that I have it clear, I understand that after the protocol was set aside there was an initial period of less contact with the INP, and that obviously led to my visit to Jakarta. After CERTAIN MARITIME INCIDENT CMI 1976 SENATE-Select Thursday, 11 July 2002 that, it was on a case-by-case basis, but it appears to have reverted to-so my earlier evidence may have been wrong and I apologise for that-more of an information gathering exercise and less of an arrest type of disruption until the relationship built back. They had been making arrests while the protocol was set aside. The answer to your question is that it did have an effect, but the effect was overcome over time. CHAIR-So the picture I have is: bang, the set aside; there is an interregnum in which the same level of cooperation or activity-whichever is the right word; I think `activity' is probably the right one-does not continue; there is a degradation of sorts in that level of activity; and over time it builds back up before the protocol is fully restored to where it was before. Commissioner Keelty-That is correct. CHAIR-That is the picture. When would it have built up to where it was before? What date would you put on that? Commissioner Keelty-I do not know that we can put a date on it, because the operational activity has, because of the departure points to Australia, dropped off, as we know, since late last year- CHAIR-But did it build up back to normal in days or weeks? Commissioner Keelty-It was not days. I would say it took weeks and months to bring it back to what it was. CHAIR-And did any disruption activities occur during this time? Commissioner Keelty-There is nothing specific that we recall, but we will check to see if there are any operations we can point to. CHAIR-Could disruption activities have occurred without your knowledge? Commissioner Keelty-Yes, I imagine they could have. CHAIR-The Indonesian side could have engaged in such activities autonomously? Commissioner Keelty-Yes, I am certainly not in a position to say that it did not, but I cannot say that it did either. CHAIR-You do not know of them doing it? Commissioner Keelty-That is right. CHAIR-But there would be a reasonable chance that if they did, you would know of it? Commissioner Keelty-I would have thought so. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1977 CHAIR-Can we assume that it is unlikely that they would have autonomously engaged in disruption activities? Commissioner Keelty-On our behalf, that is right. CHAIR-Can I just ask this question again so I am absolutely precise about it: you are saying that after 12 September until the operations came back to normal-if I can put it that way-no disruption activities occurred that you are aware of? Commissioner Keelty-Not that I am aware of, but we will check to see whether there were other operations, bearing in mind we are obviously talking about post-September 11, and a lot of activity dropped off in many parts of the world. CHAIR-That is right. That is the other thing about that date. It is the day after September 11-how could we overlook that? That is when the Indonesians cancelled the agreement. Would you say that you were back to normal relations by early October? Commissioner Keelty-I think that after my visit there- CHAIR-Your visit did the trick? Commissioner Keelty-There was certainly an agreement about how we could proceed. CHAIR-And that was 17 September. Commissioner Keelty-That is correct. CHAIR-So the picture I have is that you went over and had a chat with your Indonesian counterpart and you worked out a way how to keep after the villains irrespective of what the diplomats were saying. Commissioner Keelty-That is right. I would say that, the disruption operations being the way they were, it was probably less overt. It was more about getting the information and providing the information to us. CHAIR-Can you just remind me what a disruption operation is? What sort of class of activities are we talking about? Commissioner Keelty-Mr McDevitt coined the phrase earlier-that in this context it is to prevent the departure of a vessel. It can take many forms: either by the arrest or detention of individuals or by ensuring that the individuals do not reach the point of embarkation, if that was known. CHAIR-Would it take the form of encouraging people who might own or have access to a vessel not to make it available to people smugglers? Commissioner Keelty-Not that we are aware of. CERTAIN MARITIME INCIDENT CMI 1978 SENATE-Select Thursday, 11 July 2002 CHAIR-Would it involve talking to the pilot or the harbour master at ports and saying, `Don't give it a clearance'-that sort of thing? Commissioner Keelty-The point has been made to me that in terms of harbour control, pilots et cetera these vessels generally disembark from remote locations. So I cannot specifically say no, but it was not part of their modus operandi. Senator FAULKNER-The Indonesian police-or other Indonesian authorities: defence or immigration-would, I suppose, employ people to do this work on their behalf. Would that be how it would work? Commissioner Keelty-We are not privy to what network the INP necessarily used, so I cannot say whether it was through other agencies or what it was. We obviously knew when they arrested people or detained people, but we are not aware of how they did the other things they did. Senator FAULKNER-Fair enough. If they did, you are not privy to it, you are saying to me. That leaves me with two options. It means they might have done it, I suppose. But if they did it, who would pay for it? Commissioner Keelty-If they did what? Senator FAULKNER-Let us say the INP got some people working for them on these sorts of activities. Who would pay for it, given it was being done, effectively, on Australia's behalf? Commissioner Keelty-We do not know of any specifics of them doing that. It is possible, but we do not know of any specifics. But we, the Australians, did not fund it. Senator FAULKNER-So if that was done, it was funded by the Indonesians? Commissioner Keelty-If funding was used. But you are carrying on from the questions asked by Senator Cook, which were about the disruption operations of the INP. Just so that I have it right, because I do have difficulty understanding some of your questions, in doing that the INP does not necessarily pay people, but if they did it is not paid by the Australians and we have no specific knowledge of it. Senator FAULKNER-I suppose we are equal, because I have had some difficulty understanding some of your answers. In your view, are these disruption activities covert or overt? Commissioner Keelty-I am having trouble with your question again, because it is not specific. If you are talking about the arrests that they made, that is obviously overt. If you are talking about who they might have contacted to do the things that Senator Cook was talking about, then I suspect that they were covert. Senator FAULKNER-I appreciate that you qualified your response to me by saying that there was some ongoing interplay between the AFP and Enniss about responses to a media CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1979 report, which sounded fair enough. Putting that aside-and I understand the qualification that you make in relation to that-what was the date of Enniss terminating any formal arrangement with the AFP? You may have said this; I am not sure. I do not have it in my mind, if you did. Commissioner Keelty-I think it was around the end of September last year. Senator FAULKNER-Are you able to be any more precise? Commissioner Keelty-I have given evidence about the precise date before another committee. Senator FAULKNER-Fair enough. Commissioner Keelty-I would need to go back and check the evidence I gave before that committee so that I am not conflicting with that earlier evidence. Senator FAULKNER-So apart from what you have said about the response to the media report-I think it was on the Sunday program-AFP officers in Indonesian would have had no contact with Enniss? Commissioner Keelty-I have answered this question earlier today. The formal relationship with Mr Enniss, which commenced in August 2000, concluded in September 2001. I did not provide the Senate Legal and Constitutional Legislation Committee with the actual date. Senator FAULKNER-I do appreciate the point that you make about an ongoing contact because of the need to respond to, report on or deal with the issue that was raised in the Sunday program. I have heard that, I accept that and I am putting that aside. Apart from that and given that you have said there was a formal conclusion to this in September of last year, was there any ongoing informal association with Enniss on any other matters? Commissioner Keelty-He telephoned our people on one or two occasions, as I understand it, but the only relationship the AFP has initiated with Enniss was to resolve the issues that were raised by the Sunday program. Senator FAULKNER-So he would not have been on location-I do not know whether I am using the right terminology here but I will just use the ordinary dictionary definition of `on location'-with AFP officers anywhere in Indonesia after September 2001? Commissioner Keelty-I am just reminded that he moved to East Timor, so he probably was not even in Indonesia at the time that we dissociated from him. I do not want to disclose Mr Enniss's current location. Senator FAULKNER-I am not asking you for it. Commissioner Keelty-I do not think he has been back in Indonesia. So in answer to your question, I do not think our people have been in Indonesia with him. CERTAIN MARITIME INCIDENT CMI 1980 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Thank you. CHAIR-I was just asking about the disruption activities-whether you had asked the pilot or the harbour master not to give them a clearance-and you have made the point that the departure points for these vessels are usually remote and the questions of clearing in and clearing out that might normally be the preserve of lawful departure may not in their case be true. Perhaps that way of disrupting them would be ineffective. I think that is the gist of what you were saying. Would it be a disruption technique to encourage fuel suppliers not to supply fuel to these vessels? Commissioner Keelty-It would be a disruptive technique but, whether it was one that was applied by us or the INP, I have no knowledge. CHAIR-What about not providing food for the vessels to sail? That would be disruptive technique-mess them around a bit. Commissioner Keelty-It would be, but again it would go into the same category as the fuel. It is not something that we would do or have done. I have no knowledge whether the INP would have done that. Your assertion is that that would be disruptive. I guess that it would be disruptive but I have no knowledge and I do not think anybody here has any knowledge of that occurring. CHAIR-No-one is coming forward-I imagine someone is coming forward. Commissioner Keelty-There is no need to alter my answer, Senator. Senator FAULKNER-But is there a concern here, Commissioner? I accept what you say. You say, `These are matters for the INP; they might also be matters for Indonesian immigration officials or perhaps even the Indonesian defence force,' because you qualified your answer earlier that those other agencies may have been involved, but mainly the INP, obviously. Given that you are unable to be definitive about the INP activities, which is fair enough-that is at arms length, isn't it; it is an indirect involvement, not a direct involvement-is there a concern here about accountability, transparency, the AFP being able to assure itself that such activities were proper and legal? Has that been an issue for you? Is it properly a matter of concern? Commissioner Keelty-You have asked me two questions again, Senator. I will answer the last question first: yes. The first question: no. Senator FAULKNER-How do you satisfy yourself that those activities are legal? I accept the assurance that you give but how are you able to give it? Commissioner Keelty-I am having difficulty answering Senator Cook's questions, which are largely hypothetical, when you are cutting across and trying to change those questions from a hypothetical sense to a real sense. 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 CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1981 how they best do it, but it has not come to our attention that they were doing anything unlawful or inhumane. I simply do not have any advice on that at all. If we did know that, we would change the method of operation. Senator FAULKNER-You say that it would be brought to your notice. Who would bring it to your notice? Commissioner Keelty-When I say `brought to our notice', it would be brought the organisation's notice. It would not necessarily come to me. I would expect any of the managers in the line management to realise that that is an inappropriate way to conduct operations, and we would make a decision about that. Senator FAULKNER-That is fair enough. How would you-not you personally but the AFP-find out about it? Commissioner Keelty-We might find out about it from the debriefing of passengers when they do arrive here in Australia. We might find out about it through interviews with crew that have come to Australia. We might found out about it through intelligence picked up in Indonesia or elsewhere, from other areas of the Indonesian police or from other areas of the agencies. Senator FAULKNER-But, if they were successfully disrupting activities, the asylum seekers, the smugglers and the boat's crew would not get to Australia, would they? Commissioner Keelty-It is a hypothetical question. The fact is that we have no knowledge of it occurring. CHAIR-If, on a dark night, someone slipped down and put some sugar in the fuel tank or some sand in the engine and all that sort of stuff, that would be illegal? Commissioner Keelty-You are asking me to make a judgment about Indonesian law. CHAIR-I imagine it would be illegal to do that in Indonesia, as it is in Australia. Commissioner Keelty-I do not have the precise knowledge. I agree with you; I would imagine that that would be illegal. CHAIR-But that would be out of bounds, as far as you were concerned? Commissioner Keelty-Yes, and I have no knowledge of it occurring. CHAIR-If I understand it correctly, you cannot categorically say that these things did not happen. Commissioner Keelty-I have no knowledge at all of these things occurring, but it is like anything else I have no knowledge about: I cannot deny that it exists. CERTAIN MARITIME INCIDENT CMI 1982 SENATE-Select Thursday, 11 July 2002 CHAIR-All I am asking is that you cannot categorically say they did not. Commissioner Keelty-That is right. CHAIR-But they may have done. Commissioner Keelty-If they did, I had no knowledge of it. CHAIR-I understand what you are saying. I have no further questions. Senator JACINTA COLLINS-I want to go back to Senator Brandis's question earlier today. He asked you whether the AFP was aware of any distress calls, and your response was that you had no way of receiving distress calls. Let me follow through a bit further on that question. Were you aware of, or did you have any knowledge of, radio calls from the SIEVX to the mainland? Commissioner Keelty-The answer is no. Senator JACINTA COLLINS-No knowledge at all? Commissioner Keelty-No knowledge at all. Senator JACINTA COLLINS-Ex post facto knowledge from talking to survivors? Commissioner Keelty-We do not have specific ex post facto knowledge that we can put our hands on tonight, but I undertake to you that if we do I will come back to Senator Cook and advise him. Senator JACINTA COLLINS-It also obviously fits into the caveat of your earlier statement, which is that there is some material that might be relevant to legal proceedings, so you may not be able to provide it to me. Commissioner Keelty-What is in my mind is that there might have been communication in relation to the survivors somehow. Senator JACINTA COLLINS-We understand from survivor reports that there was communication between SIEVX and the mainland. Commissioner Keelty-I am not aware of that. Thank you for taking into consideration what might preclude us from replying, but if that is the case I will advise you of that as well. Senator JACINTA COLLINS-I am also assuming that, if there is action potentially afoot in relation to charging people smugglers over the deaths of these people and any information that was conveyed about the situation whilst the vessel was out at sea, it may well be relevant. Please take that on notice. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1983 Commissioner Keelty-The first question was about radio communications, and now you are talking about the content of the communication. You are exactly right. Senator JACINTA COLLINS-The issue may well be that a distress call had been made but was not conveyed further than a certain point. Commissioner Keelty-Yes, and I will undertake to give a reply to Senator Cook on what our knowledge is, ex post facto or otherwise. Senator FAULKNER-Two contemporary reports occurred after the sinking of SIEVX: one on the ABC radio program PM on Wednesday, 24 October and another in the Australian newspaper on 25 October last year. Both go to claims about people being forced onto this vessel at gunpoint by Indonesian security forces, including police. Have any of those reports been drawn to the attention of the AFP? Commissioner Keelty-Do you mean the newspaper reports? Senator FAULKNER-I only know it as a result of the newspaper reportage. Obviously, you would have a capacity for official information as opposed to the very unofficial information that I am limited to. If it would assist you, I am happy to quote a couple of sentences that were in the material in the public arena. That is all I know. Commissioner Keelty-Thank you for the offer to read the passages. I do have a more primary source of information on that. I need to take legal advice as to whether I can provide it here. Could I take that on notice please? Senator FAULKNER-That is fair enough. I have deliberately indicated to you the source of-`information' might be putting it at too high a level-these stories, which is from media reports. I have pointed out the time. I will read one sentence from the ABC's PM story into the record. This is from a reporter, Ginny Stein: There were about 30 police there and they said that they did not want to go on either. At that stage, police it's claimed, beat them and forced them at gunpoint to get on the boats ... The Australian story of the next day, 25 October, was headed `Forced onto death boat'. It begins: Indonesian security personnel forced asylum seekers at gunpoint to remain on board a dilapidated fishing vessel that later sank, taking 353 people to their deaths ... These were quite substantive stories at the time. I appreciate your taking it on notice. I assume that you would also appreciate that it is only this level of information that is available to at least some members of the committee, such as me. Commissioner Keelty-Yes, I do. I simply point out that it might well fall into the class of material that Senator Collins was just talking about. Senator FAULKNER-I appreciate that. Hence I think it is useful if you could take it on notice. I am happy to provide copies of that to the AFP it is of any help, but I appreciate you CERTAIN MARITIME INCIDENT CMI 1984 SENATE-Select Thursday, 11 July 2002 have your own primary sources and the like. If the basis of my question assists you in understanding that, I can give you copies of it. CHAIR-Allowing for your late start, Commissioner, your appearance here has taken the full measure of time allocated initially. Thank you for your appearance. That concludes your evidence. We have no further questions. Proceedings suspended from 6.36 p.m. to 8.03 p.m. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1985 KILLESTEYN, Mr Edward Victor, Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs McMAHON, Mr Vincent, Acting Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs SIEGMUND, Ms Nelly, Assistant Secretary, Department of Immigration and Multicultural and Indigenous Affairs CHAIR-Order! I call the witnesses from the Department of Immigration and Multicultural and Indigenous Affairs. I think this is the second time the department has appeared before us. As I recall, on the first occasion you were not in a position, or chose not, to make a statement. Do you wish to make a statement to begin the proceedings on this occasion? Mr Killesteyn-No. CHAIR-You are quite happy for us to go directly to questions? Mr Killesteyn-Indeed. We understand the committee is interested in intelligence issues, and Ms Siegmund is the head of the branch that deals with those sorts of matters. Hopefully we can answer your questions as best we can. CHAIR-I have a few questions not on the intelligence subject but on another matter which I would like to briefly cover, if I may. Back in May, I think, the committee was of the view that we wanted to take evidence from people on Manus Island, and we never went ahead because those people we sought to interview declined to make themselves available. At the time, I asked through the secretariat for an indication from the department as to whether the department would extend to people on Manus Island who may choose to come forward and give evidence the privilege that they would normally extend to or that would normally cover people giving evidence to a hearing in Australia, where we have jurisdiction. Clearly, on Manus Island, we do not have jurisdiction. It seemed a reasonable request to make. My understanding is that the answer to that question was that the department's view was that they were perfectly happy to respect the evidence anyone gave but that, if people said or did things in the giving of that evidence which the department felt were useful, they would use that material in making any assessments about those individuals' rights. As a consequence, we were not able to guarantee to those people that they would have the same protections of privilege that they might have were we to conduct our proceedings in Australia. That is my understanding of the situation. Perhaps I should ask: do I understand that correctly, in your view? Mr Killesteyn-We attempted to facilitate the request to speak to the particular people on Manus Island. CHAIR-Yes, you did. CERTAIN MARITIME INCIDENT CMI 1986 SENATE-Select Thursday, 11 July 2002 Mr Killesteyn-We took legal advice on this matter, and we were guided by that legal advice. Essentially, the issue was around whether any information that the person might provide, if it went to their claims in relation to asylum, would be in a sense useable by the refugee status determination officers in the context of assessing their claims. The advice that we received was that, if the matter went to the veracity of their claims for asylum, there would be every right for the department to use that information in making a final assessment as to whether or not the claims were valid. We could not therefore give any sort of guarantee to the individuals that that information would not be used. CHAIR-However, if the hearing were conducted in Australia with people resident in Australia, you would not be in a position to use any material adduced in proceedings such as these in that manner, would you? Mr Killesteyn-The issue concerned the way in which the process was being set up; there was an attempt to try to find a way in which a teleconference could be set up between the committee and the individuals in PNG. It was against that background that we were making that assessment about the use of any information that the person might provide. CHAIR-I understand that. Any evidence given in Australia is privileged and cannot be used for assessment purposes. That is understood, isn't it? Mr Killesteyn-That is understood but, as I say, the issue that we were tackling at the time was in the context not of a person appearing here in Australia but rather of a person providing advice from Papua New Guinea. CHAIR-That is, someone appearing outside of our immediate jurisdiction where we can enforce our privilege protection. It is not legally necessary for you to take the view that you took, is it? Mr Killesteyn-The view is about determining whether the person's claims for asylum are valid and I think it behoves us to take all information into account to determine the veracity of those claims. If a matter goes to those claims as a consequence of the person providing evidence then it would be irresponsible if we did not look at whether the person's claims were accurate or fair or honest. CHAIR-Yes, but I return to my point. If they were resident in Australia, that situation would not obtain, would it? Mr Killesteyn-I would have to take some further advice on that. Perhaps Mr McMahon can offer some views there. Mr McMahon-One of the issues that did arise in respect of this is that evidence could be used in a variety of ways. For example, if an asylum seeker gave evidence before the committee remotely, overseas, then it is quite possible that we would have had people coming to us in any case through the back door simply trying to dissociate themselves from that evidence. That is entirely possible in a domestic context as well. In Australia where the laws of procedural fairness apply, an officer making a decision on a case is actually required, through the procedural fairness laws, to take into account all relevant considerations and to not take into CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1987 account irrelevant considerations. So even in Australia, although the evidence given could not be directly used, if there were consequential actions which arose in respect of that evidence then we are actually duty-bound by the law to respond to the information. The situation was-with regard to the overseas context as well-that we were really quite conscious of that issue arising. We thought it was highly unlikely, in the overseas context, that the general nature of the evidence that would be given would adversely affect the claims of any individual. But part of our concern was simply that we could not give an absolute undertaking that the evidence, directly or indirectly, might not affect the claim. Our view is probably similar to that of others-that the risk was relatively low. In the end, there was more than one reason why the evidence did not proceed. I think there was that generalised concern but the process itself was also found to be slightly intimidating for some of the asylum seekers. As I understand it, there was more than one reason why they did not proceed with the evidence. CHAIR-It may very well be the case that there was more than one reason why they did not proceed, but I am not concerned about that at the moment. I am concerned about the actions the department took to decline to extend the privilege that this committee would expect for witnesses appearing before it in Australia to witnesses appearing before it on Manus Island. My question at this point is simply this: it was a decision the department made but it was not a decision the department was compelled to make, was it? Mr McMahon-I believe that we are under an obligation to consider all relevant material. CHAIR-So if someone gave evidence under privilege to this committee, would you consider that in terms of their application for asylum? Mr McMahon-No, we would not. But if, as a result of giving evidence, for example, someone came to us dissociating themselves from that evidence or elaborating on it-in other words, it is an indirect consequence in Australia-then we would need to consider it. CHAIR-And the same proposition would apply on Manus Island if you chose to respect the privileges of this committee taking evidence on Manus Island. Mr McMahon-The situation was that, just as in Australia, where we could not rule out that there may be circumstances which might apply which would actually be consequential to the evidence, we could not rule that out on Manus, as well. Having said that, we made it fairly clear that we thought the potential for that to be relatively slim. The other issue that I think is quite relevant is that the International Organisation for Migration had a duty of care, which it made clear. It was concerned about the possibility and consequences- CHAIR-I am concerned about the department, though. All that you are saying is that the concerns that you had-and you were putting it in this context, might I say-were concerns for the people involved. But here in Australia they have the protection of privilege. Offshore, they do not. Your department chose not to extend it to them for the purposes of this inquiry when it was not a decision that you were forced to make. It was a decision that you chose to make. Am I stating it correctly? Is there something wrong with what I am putting as the factual situation? Mr McMahon-I would put it another way. CERTAIN MARITIME INCIDENT CMI 1988 SENATE-Select Thursday, 11 July 2002 CHAIR-How would you put it? Mr McMahon-I would put it that we fulfilled our obligations in respect of information. CHAIR-To the letter of the law? Mr McMahon-I think in respect of what we would consider to be natural justice and procedural fairness. CHAIR-You chose not to recognise privilege for this committee in hearings offshore. That is what you chose to do. Mr Killesteyn-I think the interpretation and the explanation that Mr McMahon has provided go to the question of whether an absolute guarantee could be given about the information. CHAIR-Can an absolute guarantee be given in Australia? Mr Killesteyn-We are not talking about the direct information or evidence that might be provided by an individual; we are talking about issues that arise as a consequence of that evidence. That was the finer point about providing the absolute guarantee that the committee was looking for. CHAIR-Why would someone not come to the conclusion that, because you were not prepared to extend privilege to witnesses who may come forward offshore, witnesses did not come forward and that suited your purpose? Why would that conclusion not be open? Mr Killesteyn-It was not a matter of the department not extending the privilege. The issue is that on the advice we received about this matter of privilege, it was open and required, in terms of making a decision on the person's claims, that there may be information arising as a consequence of that evidence which should be taken into account in determining whether the person's refugee claims provided a basis for refugee status. CHAIR-What I am now coming down to is a question of accountability and responsibility. As a department, you are accountable and responsible to the government and, beyond the government, which is the executive wing, to the parliament. Indeed, just two weeks ago we voted as a Senate on your appropriations. In order for us to vote on your appropriations, you went through an estimates process in which we quizzed you on your conduct. We are a committee inquiring into a certain maritime incident, and the people on Manus Island were directly involved in that incident. We asked if you would extend the courtesy of privilege to them so that they could give evidence knowing that there would be no repercussions in the assessment of their asylum applications, and you chose not to give that privilege. That is a free choice that you made. How do you explain that to us-to whom, ultimately, you are accountable-when that can, at least on one reading, interfere with the process of this inquiry? Mr Killesteyn-We also have the responsibility for making decisions which go to a person's refugee claims. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1989 CHAIR-Were you guided by the minister in this, or did you make this decision off your own bat? Mr Killesteyn-This was on the basis of the legal advice that we had in relation to a request from the committee for an absolute guarantee in relation to this matter of privilege. The advice, as Mr McMahon has explained, is that, in relation to direct evidence, that privilege existed, but in relation to consequential matters that arose as a consequence of that evidence it was valid and proper, in terms of making a decision about the refugee status of the person, that that information could be taken into account. There is probably some debate about whether that was the overriding factor that ultimately led to the people not providing evidence. CHAIR-The department could have saved itself a lot of time and effort by simply asking the Clerk of the Senate what the privileges rules were and obtaining an honest and direct reading from him as to what the obligations are. The privileges rules are relatively straightforward. People will not injure another party that gives evidence to us under privilege and if they do they risk contempt of the Senate and consequences may then follow. All we asked you to do was to put the cloak of that protection over people on Manus Island so this inquiry could fulfil its mandate from the Senate and ask those who were involved in the certain maritime incident what happened. The fact that you declined to do so may be a factor in those people not coming forward to give their story and it may be a factor for this committee to consider when it writes its report-that the actions of your department in part may have caused that to be the case. You understand that point, don't you? Mr Killesteyn-Indeed. I think there will always be some debate about whether or not the department acted properly and indeed whether this was an issue that ultimately led to the people not offering any evidence. I do not think there is any direct causal relationship in this matter. CHAIR-On reflection, would you have done it another way? Mr Killesteyn-We went to great lengths to facilitate the request of the committee. CHAIR-Except that you did not go and do what we asked you to do and tell the people on Manus Island that you would respect privilege if they gave evidence to us. Mr Killesteyn-Because the committee was seeking an absolute guarantee which we could not give. CHAIR-I do not understand why you could not. All we were asking you to do was to give us your word as a department that, in making assessments about these people's applications for refugee status, anything they said to us-which if they had said it in Australia would have been protected-would also have been protected if they said it from Manus Island. That is fairly straightforward and that is all we were asking you to do. Mr McMahon-I believe that is what we said to them. CHAIR-I beg your pardon? Mr McMahon-I believe that is exactly what we said to them. They essentially respect- CERTAIN MARITIME INCIDENT CMI 1990 SENATE-Select Thursday, 11 July 2002 CHAIR-It is not what you said to us, Mr McMahon. It is not what you have just said either. Mr McMahon-It is exactly- CHAIR-With respect, it is not what you have just said. You have just said that you obtained legal advice that you did not have to give that extension of privilege and you did not. Mr McMahon-Essentially we were not going to participate in the direct evidence. We simply made the point that if people came to us subsequently, trying to dissociate themselves from evidence or providing further evidence, as a result of that extension, we would be duty- bound to use it. We also indicated that we thought that to be an extremely unlikely situation. We did everything we could to facilitate it; we encouraged IOM to facilitate the phone hook-up. It goes back to the question of the nature of the request that basically sought in absolute terms that there could be in no way any consequence at all. That was simply going beyond what we were capable of giving. CHAIR-With the greatest respect, Mr McMahon, you have driven the question to the point where it loses its point. Clearly, we are not going to ask the department to give a guarantee it cannot give. The guarantee that nothing at all would ever happen to anyone as a consequence is not a guarantee that you could give because who knows what will happen. People giving evidence to our inquiry under privilege in Australia may have actions taken against them. Our cloak of privilege does not protect them from that. All that we can say is, in those circumstances, if it occurs, we can take action under the contempt rules of the Senate to punish the people who might try to break our privilege. That is all it says. We cannot ask you to say that no-one will ever do anything, but we can ask you to give us a guarantee that evidence given to us offshore will be respected as privileged for the purposes of the assessment of the applications these people might want to make. You declined to do that. Mr McMahon-We indicated to them that we would not seek to use any evidence that was directly given to the committee. We made that very clear to IOM. In the end, my advice from IOM-I could go back and tease this out a bit more-was that that issue was not the main issue that resulted in their deciding not to proceed. CHAIR-That is an observation that I have not even gone to at this point. What I am concerned about is the conduct of the department towards this committee and this inquiry. It may be that you would like us to record in our report for consideration when estimates come around next and your appropriations are before us that you declined to extend privilege offshore and, thus, in a way, blocked part of this inquiry. We have an obligation to the Senate to fulfil a mandate given to us. You may have contributed significantly to us not being able to fulfil that. That is not a matter of light moment. Mr McMahon-I know it is not. I also believe that the evidence does not support it. CHAIR-I am not sure what evidence there is. Would you care to provide us with a copy of the legal opinion on which you based your decision? Mr McMahon-The evidence that I am talking about was the feedback from IOM as to why it did not proceed. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1991 CHAIR-There is no such evidence before us. Mr McMahon-Nor did I expect to have to give it tonight, as we were given a clear undertaking that this hearing was about intelligence gathering. Had I known that this was going to be on, I would have sought to provide the committee with more information. CHAIR-Yes, of course it is about that. This is a threshold question that I raise and I will certainly shortly turn to the main purpose of this hearing. But you could not give evidence, I put it to you, as to what was in those people's minds when they declined to come forward. That would be hearsay, wouldn't it? Mr McMahon-Indeed. CHAIR-What evidence are you referring to then? Mr McMahon-I am referring to the feedback from IOM as to why it did not proceed. It may not meet the standards of evidence in a court but I would have thought that it was quite relevant in respect of an inquiry such as this. CHAIR-You are referring to what the agency told you. Mr McMahon-Indeed. CHAIR-And only that, which does not go to the point of what those people necessarily thought. Mr McMahon-It was the feedback from IOM as to why it did not proceed. CHAIR-In any case, I just do not accept that. I had better be square and frank with you: I do not accept that that would be evidence in the normal course. Senator BRANDIS-Mr Chairman, given that this inquiry is not governed by the rules of evidence, I am struggling to see the relevance of your line of interrogation of these witnesses. CHAIR-The line of inquiry is quite simple: we asked the department to extend privilege to people on Manus Island to give evidence to this inquiry, and the department declined. It is an option for the department. Senator BRANDIS-The department is not at liberty to extend parliamentary privilege. CHAIR-The department is at liberty, I put it to you firmly, to say that it will not use any evidence obtained in a hearing conducted offshore against people who are applicants for asylum. Senator MASON-It will not take it into account in terms of their applications. CHAIR-Yes. CERTAIN MARITIME INCIDENT CMI 1992 SENATE-Select Thursday, 11 July 2002 Senator MASON-I understand. CHAIR-And it declined to do so. Mr Killesteyn-I think there is a finer distinction here which, at least from my reading, it seems is being interpreted, in the way that you are putting it, that we are not respecting privilege. CHAIR-No, I am not saying that you are not respecting privilege. Mr Killesteyn-Or that we declined to respect privilege. CHAIR-In fact, I can say to you that what you have done is legally possible. All I was saying to you was that, as a department accountable to the government and through the government to the parliament, in a parliamentary inquiry, we asked you whether you would mind letting those people on Manus Island know that they could give evidence to us and that the evidence they give to us would not be used against them in assessing their asylum applications, and you declined to do so. Mr Killesteyn-That is not correct, Senator. CHAIR-Whether that was the reason they did not give evidence to us or not is another matter, but it could be thought to be at least one of the considerations, if not the major one. That is what I am putting to you. Mr Killesteyn-And we are saying that that is not correct. We did advise the people on Manus that the evidence that they could give to the committee would not be used in the refugee status determination matter. It was matters that arise as a consequence of that, and later, that we could not give a guarantee would not be used. So the privilege was still there; and we were guaranteeing the privilege, and respecting the privilege. CHAIR-What was the manner in which you give this advice, Mr Killesteyn? Mr McMahon-We advised IOM. CHAIR-Did you advise them in writing or orally? Mr McMahon-I believe orally. CHAIR-Is there a notation recording what you said? Mr McMahon-There may well be. CHAIR-Do you know what IOM told those people? Mr Killesteyn-They would have told them what we told them. We can take that on notice. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1993 CHAIR-Do you know that for a fact? Mr McMahon-Yes I do, as a matter of fact. I cannot vouch for this, but we had a liaison officer on the island at the time. I seem to recall that we passed the information to her as well, and that she spoke to IOM and possibly to the asylum seekers themselves. But I would have to verify that. CHAIR-Then please do. Senator BRANDIS-Mr Chairman, I wonder if, before the point is lost, I could pursue Mr Killesteyn's answer from about four questions ago in which he sought to explain the reason for the decision. May I do that? CHAIR-You may, if you wish. Senator BRANDIS-Thanks, Mr Chairman. Mr Killesteyn, what I understand you to be saying-correct me if I am wrong-is that, although the department may have told possible witnesses on Manus Island that it would not have regard to their testimony before this committee in assessing any application for refugee status that they might subsequently bring, the department was not in a position to, and therefore was not able to, assure such people that it would, under no circumstances, have regard to any other facts that might subsequently be revealed, which might perhaps be prejudicial to their applications for refugee status in consequence of their testimony to this committee. Is that the substance of it? Mr Killesteyn-That is exactly right. It is a distinction between the direct evidence and any consequential matters that arise. Senator BRANDIS-Or, in legal parlance, the distinction between what is called direct and derivative immunity. Your legal advice was essentially to that effect? Mr Killesteyn-I cannot recall precisely what the legal advice was, but it was certainly to that effect-the distinction between direct and derivative, as you say. Senator BRANDIS-And, of course, any determinations in relation to refugee status are reviewable by the Refugee Review Tribunal? Mr Killesteyn-Not in the context of the decisions being made in respect of people in Manus or in Nauru. They are reviewable, but it is an administrative review as distinct from one that is run by- Senator BRANDIS-As opposed to a merits review. Mr Killesteyn-That is right. Senator BRANDIS-Quite. I am sorry, I put that badly, but that is really the point that I am getting at. One of the bases upon which a decision is reviewable in an administrative review- and this is, I think, the point Mr McMahon was at pains to make-is having regard to irrelevant CERTAIN MARITIME INCIDENT CMI 1994 SENATE-Select Thursday, 11 July 2002 considerations, or failing to have regard to relevant considerations. I think we know that. If, for instance, a fact were to be revealed by a refugee applicant in evidence before this committee which produced a conclusion as to his or her application for status, and there was subsequently an application for administrative review, I put it to you that the fact that a piece of evidence given before this committee was disregarded within the view of the review tribunal that ought to have been had regard to might result in a determination being overturned-potentially to the prejudice of that applicant. CHAIR-That is a very long bow. Senator BRANDIS-It is not a long bow. Senator Cook, if you were a lawyer, you would understand it is elementary. CHAIR-I am not a lawyer, but I do regard it as a long bow. I would think that there would be some weight given to what processes the department agreed to accept for a parliamentary inquiry. Senator BRANDIS-No, there would not be-not by an Administrative Review Tribunal. If the Administrative Review Tribunal were of the view, as a matter of law, that that piece of evidence, if it was direct evidence, irrespective of any immunity offered by the department, or if it was indirect evidence, regardless of whether the immunity was upheld or not, ought to have been had regard to and was not, then that would be a very proper and commonplace basis for a determination to be set aside. I apprehend it was that kind of prejudice against which you were seeking to protect potential applicants when you made the decision on the undoubtedly correct legal advice you received. CHAIR-I accept that as your opinion. We are going to have a copy of the legal opinion? Mr Killesteyn-We will provide that to the committee. CHAIR-Can you provide us with copies of any written information given to the people on Manus Island by IOM as a result of the verbal communication of the position? Mr McMahon-I cannot say that there was written advice given by IOM. CHAIR-Was it all by word of mouth? Mr McMahon-It may have been. I am just saying I cannot say that there was written advice. The fact of the matter is that when you are dealing- CHAIR-If there was any, you can provide it? Mr McMahon-We will certainly have a look at it. If it was given, I will certainly provide it. CHAIR-Thank you. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1995 Mr McMahon-The bottom line is that it is often difficult dealing in written material with groups of people who speak a lot of languages. A considerable amount of the communication that takes place within those centres is oral because they ask a lot of questions and they go over the material so that they can get an understanding of it. It is quite common for us to provide messages orally. CHAIR-Thank you for that information, but you will obtain any written advice that was given and provide it to us? Mr McMahon-Correct. I give you that undertaking. CHAIR-Thank you. That is enough for the time being. Are there any other questions from the committee? Senator FAULKNER-I certainly have some. I realise the government senators get first call if they have any. Senator BRANDIS-I do not have any more questions for the moment. Senator MASON-I will defer to Senator Faulkner for the moment. Senator FAULKNER-Thank you both for that qualified deferral. Mr Killesteyn or Mr McMahon, both of you were present at the task force meeting on 12 October 2001 when the task force minutes or notes talk about `discussion of disruption activity and scope for beefing up'. You were both there so I wondered if you could share with us what that means. Mr Killesteyn-Generally, disruption activity refers to those activities on the ground in Indonesia which would frustrate any impending departure of a vessel. We were looking at around that time, in October, where there was clear evidence that there was a build-up potentially of quite a considerable number of vessels. It was thought prudent to see what we could do to extend disruption activities to prevent those vessels from leaving in the first place. That disruption activity was not a matter that we were directly involved with in Indonesia. It goes to things such as information campaigns. Senator FAULKNER-Who is `we' in this instance who were not directly involved? Is it DIMIA? Mr Killesteyn-That is correct. Senator FAULKNER-Can you help me with this, Mr McMahon? Mr McMahon-That is my understanding of it as well, but I believe it also went to informing the Indonesian authorities about activities that were taking place. Senator FAULKNER-It seems to me from what I have heard at this committee and from a whole range of witnesses that DIMIA's intelligence operation or coordination role is the lynchpin role. Quite a number of witnesses have said that. I think that is a reasonable thing for CERTAIN MARITIME INCIDENT CMI 1996 SENATE-Select Thursday, 11 July 2002 me to say, but perhaps one of you as witnesses would care to comment on that or acknowledge or confirm if that is the case. Mr Killesteyn-It goes to the question of the description of `lynchpin' or `coordination.' Perhaps I can give you a general description of essentially what happens- Senator FAULKNER-Please. Mr Killesteyn-and perhaps Ms Siegmund can amplify that at some point. Within the Border Protection Branch we have a group of people known as the Intelligence Analysis Section. I provide that information early because it goes to our essential role of analysis of intelligence. In a sense, the role is played out by the IAS receiving intelligence from a range of sources and then making an analysis of the veracity of that intelligence to give us and other agencies a basis for planning action and responses to the impending departure of any vessel. We initially started the Intelligence Analysis Section two years ago. It was essentially an internal section where the product of intelligence analysis was being provided internally to the department and to the minister. Ultimately that proved to be a valuable product and other agencies started to request copies of the various intelligence notices we put out. Over time, that grew into a recognition that there was value in having one central agency collect the intelligence, analyse it, make sure it has more than one source, determine its veracity and so forth. We then filled a role where we were very actively and quickly collecting that intelligence, putting it into the form of notices and bulletins and distributing it to the relevant agencies outside DIMIA. Senator FAULKNER-In terms of the government's objective to counter people-smuggling operations, the Intelligence Analysis Section of DIMIA becomes the key point for the receipt of primary intelligence reports and you obviously analyse that and distribute it more broadly in the bureaucracy. Is that a fair description? Mr Killesteyn-That is a fair comment. Senator FAULKNER-Understanding that, what is coming into the Intelligence Analysis Section? It is primary intelligence. I do not want to go too far into this. However, I would like to know what agencies are inputting to you. For example, you have the AFP intelligence. Just give me a list of what agencies, organisations or groups are inputting in terms of your sources, in the broad, of primary intelligence. Ms Siegmund-Perhaps I can answer that. We have an all-source analysis capability. It includes a very broad range from open source material and, as you have alluded to, to agencies that provide us with support from a very broad range of the Australian intelligence community and also the law enforcement community. It includes agencies within defence such as Defence, AFP and state police. We also have a network overseas of what are called compliance officers who work offshore. There are 26 of those officers located in embassies around the world. Their function is to look at people-smuggling trends and illegal people movements within their region and provide that information back to IAS and other areas. It also includes nine airline interdiction officers who work at airports. Senator JACINTA COLLINS-What are they called? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1997 Ms Siegmund-Airline liaison officers-ALOs-is the correct title. They are based at seven airports, mostly within the region-hub airports-and their role is to work with airlines and assist them with document examination skills and provide advice about who can and cannot be uploaded to Australia. That is also a very prime source of intelligence for us from people working at airports. Senator FAULKNER-So you have this material coming in-these primary reports-and then you have the strike team. Can you explain the role of the strike team? Ms Siegmund-Certainly, Senator. The joint agency AFP-DIMIA people-smuggling strike team is physically located within the AFP. It was created as a result of a cabinet decision to look at organised criminality behind people-smuggling, so its role is to undertake investigations which will hopefully lead to the prosecution of people involved in organising people- smuggling. The joint agency team comprises 15 people-five from DIMIA and 10 from the AFP. It is a combination of analysts plus certified investigators, and they undertake a series of operations where they have targeted people whom we believe are involved in the organisation behind people-smuggling. Their role is also then to provide information that they may come across in the course of their investigations to IAS as well, or vice versa-that we are able to provide them with the result of our collation analysis and the product that comes out. There is a close relationship in terms of the information sharing that goes on between the two but the strike team takes the role a step further in that its role is really to look at investigation and prosecution. Senator FAULKNER-So that is called the joint strike team? Ms Siegmund-It has a very long title: the Joint Agency People-Smuggling Strike Team; that is, DIMIA and AFP. Senator FAULKNER-The DIMIA involvement in that comes from, effectively, your border control branch too? Ms Siegmund-Yes. It comes in several ways. One is that we provide five team members, as I mentioned. There is also a board of management that I think I mentioned to you previously, Senator. Senator FAULKNER-Yes, indeed. Ms Siegmund-That comprises myself and my equivalent in the AFP. The role of that board is to look at how the strike team is conducting its operations, what operations it takes on, what are its priorities and how it is running. That is the other involvement in that strike team from DIMIA's perspective. Senator FAULKNER-You have the strike team and the intelligence analysis section. Are any other bureaucratic structures in the Border Protection Branch playing a role in relation to countering people-smuggling? Ms Siegmund-Yes, Senator. There are currently five sections within the branch. One of those other sections is the offshore compliance and liaison area which manages the offshore CERTAIN MARITIME INCIDENT CMI 1998 SENATE-Select Thursday, 11 July 2002 compliance liaison network that I described to you and the ALOs-the airline liaison officers network. They have a very strong role to play in terms of how our offshore compliance network operates and how it feeds information back to us. There is also a separate investigations policy and liaison area. We currently have four investigation sections throughout Australia. It is the role of the central office section to coordinate the activities of those investigations units as well. In the course of those investigations, if they come across people-smuggling issues, they feed them in either to IAS or the PST-the people-smuggling strike team-depending on what it was and what level it was at. There is also the identity fraud and document integrity section. We have become increasingly concerned about identity fraud as a global and national issue and the impact that it may have on transnational crime issues such as people-smuggling. Whilst the section looks more broadly at the composite issue of identity fraud and how it impacts on the portfolio of immigration, there is also a component in terms of people who are involved in people-smuggling who may seek to change their identity because they feel it will help them to have a different outcome in terms of being smuggled or being involved in smuggling. That is another area that obviously has a direct impact too. Senator FAULKNER-Thanks for that helpful background. Let us come back to the task force and the decision in relation to what is termed in the task force minutes: Discussion of disruption activity, and scope for beefing up. What role did DIMIA or any of these parts of DIMIA have in that activity? Mr Killesteyn-Can I seek some clarification? When you ask what role we had in that activity, do you mean activity in Indonesia? Senator FAULKNER-No, I am talking about it from a task force perspective at this stage. Did your strike teams, the Border Protection Branch or anyone actually suggest that this might be a way forward, given the crucial role that you were playing? Ms Siegmund-I do not think this is the whole answer, but it might go part of the way to answering your question. As I think Mr Killesteyn mentioned, IAS does the collection analysis and then produces reports coming out of that. Those reports have a distribution list that includes agencies that are represented on the People Smuggling Task Force. So all of the intelligence reports that we were putting out during that period of time were certainly made available to members of that task force, or they had access to them. Senator FAULKNER-I do not know if you heard any of the evidence the AFP gave earlier today. Ms Siegmund-Some of it, but not all of it. Senator FAULKNER-We heard of a protocol between the AFP and the INP being laid aside. Did DIMIA have any knowledge or understanding of the background to that protocol being terminated? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 1999 Mr Killesteyn-No. Senator FAULKNER-None at all? Mr Killesteyn-None at all. Senator FAULKNER-What are you able to tell us about the disruption activities on the ground in Indonesia? Mr Killesteyn-Only generalities in terms of the things I explained before about information campaigns and providing an opportunity for people to be delivered to the IOM processing areas. You are probably aware-I think it has been referred previously-that there has been a regional cooperation model running whereby IOM seeks to care for these people pending an assessment of their refugee claims and resettlement to other countries. That facility was established a couple of years ago and it works well with the Indonesians. Senator FAULKNER-Let us start with the information campaigns. They are part of the disruption activities, are they? Ms Siegmund-Yes. Several campaigns have been conducted in Indonesia. For example, I am advised that one of the campaigns was aimed specifically at Indonesian nationals who had been lured in to be crew members for some of the vessels. As you may have been advised in other evidence, many of the crew members of illegal vessels that have attempted to travel to Australia have been fisherman from small villages who have been offered amounts of money, probably amounting to a year's salary for many of them, as enticement to get involved. One of the campaigns was aimed at trying to let them know what would happen if they were caught trying to enter Australia illegally-what the consequences of that might be-and to alert them to the fact that they were becoming involved with organisers who in effect were criminals. Another campaign was also aimed at trying to point out some of the dangers in travel to passengers and the fact that they were involving themselves with organised criminals-people who were working in the people-smuggling industry, which is an illegal industry-and that they should not allow themselves to be enticed into that kind of activity. Senator FAULKNER-Yes. Ms Siegmund-The former was certainly done very much with the cooperation of Indonesian authorities, particularly because it was aimed at Indonesian nationals in terms of the fishermen. It was done very much with Indonesian authorities at the time, I believe. Senator FAULKNER-So how did you run such an information campaign? I think we know about the T-shirts. I do not know if the T-shirts were relevant to that campaign. I heard evidence previously from a DFAT officer about T-shirts. You may not even know about that so let us not get bogged down in it. Ms Siegmund-I am sorry, I do not. I have seen pamphlets and leaflets that were produced and I am also aware that officers from the embassy in Jakarta have visited certain places to have face-to-face discussions with people rather than expecting them just to read pamphlets-which CERTAIN MARITIME INCIDENT CMI 2000 SENATE-Select Thursday, 11 July 2002 were obviously translated. It was a combination of many different sorts of tactics. The T-shirts is one I had not heard of but that is obviously part of it. Leaflets and direct discussions were the ones that I was aware of. Senator FAULKNER-Do you have a budget for this activity? Mr Killesteyn-It is within the appropriation provided to DIMIA. Senator FAULKNER-Yes, but these are moneys being spent in Indonesia, isn't it? I know it is within your appropriation. Give me a fair go. Mr Killesteyn-Yes, but if we produce a pamphlet then we will produce it here. It is not a matter of paying anybody in Indonesia. To the extent that we are- Senator FAULKNER-So all the pamphlets that are printed for distribution in Indonesia are printed in Australia? Mr Killesteyn-Even if they are printed in Indonesia-which I do not know-it is still paid for by DIMIA. Senator FAULKNER-Yes, I know. I guess what my question was: do you have a budget for this sort of information campaign? Mr Killesteyn-A fixed budget? Senator FAULKNER-There must be some accountability. Ms Siegmund-Again, I am not sure I can answer all of your question. It is a little bit out of my area. But we were provided with funding as a result of the Prime Minister's Coastal Surveillance Task Force to look at issues such as capacity building and others. What I would prefer to do, I guess, is to come back to you to say whether any of those funds in that task force or subsequent budgets were allocated specifically to issues such as information campaigns. I am sorry; I do not have that- Senator FAULKNER-So you could take that on notice for me? Ms Siegmund-If you would not mind. I will get back to you. Senator FAULKNER-That is fine. If you could disaggregate it, I would appreciate it. I could then get some sort of understanding on how the moneys are being spent- Ms Siegmund-Sure. Senator FAULKNER-and where they are being spent, if that were possible. Ms Siegmund-To clarify, just on the information campaign or, from the task force, how other funding was spent as well? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2001 Senator FAULKNER-Yes. What about other disruption activities that you are aware of? Ms Siegmund-We certainly are aware that the AFP have been working quite extensively in developing their relationship with the Indonesian National Police. The level of detail, though, in terms of what that actually means on the ground or how that is actually conducted, I would only be relaying second hand to you. CHAIR-That does not stop Mr McMahon doing the same. Ms Siegmund-I cannot comment on that, I am sorry. CHAIR-All I am saying is that Mr McMahon was free to do that but apparently you have drawn the line at doing that. Ms Siegmund-I would hesitate to try and give you something second hand on something quite as serious and detailed. CHAIR-That is precisely the point I made to him. Senator FAULKNER-There would be ministerial briefs going up to your minister on disruption activities, I suppose,? Mr Killesteyn-Yes. We keep him briefed on all such matters. Senator FAULKNER-What part of the department would prepare those briefs? Mr Killesteyn-That would be within the Border Protection Branch. Ms Siegmund-To clarify, we provide him with regular briefing on the people-smuggling situation generally-you know: what is happening in terms of Indonesia, numbers coming in, boats et cetera. Senator FAULKNER-I would expect that, but my question went to disruption activities and whether the minister is briefed about that. Ms Siegmund-Yes. It perhaps expands the question that I felt I could not answer more clearly. It has occurred to me too that we have had reports from our colleagues at the AFP about Indonesian involvement in being able to stop certain vessels from departing-vessels that they felt were leaving their harbours illegally. It then transpired that they had passengers on board who were attempting to come into Australian illegally. We have certainly reported that to our minister, yes. Senator FAULKNER-Did the minister raise, at any meetings in his ministerial visit to Indonesia in June, the issue of disruption activities? CERTAIN MARITIME INCIDENT CMI 2002 SENATE-Select Thursday, 11 July 2002 Ms Siegmund-I did not accompany him during that journey. I have visited Indonesia myself to have discussions with the Indonesians, but I did not accompany him on that June visit so I cannot answer that question. I do not know whether there is any record of meetings. Senator FAULKNER-Has any part of the Border Protection Branch of DIMIA or-to your knowledge, Mr Killesteyn-any part of DIMIA more broadly sought legal advice in relation to the appropriateness or otherwise of disruption activities? Ms Siegmund-No. I can speak for my branch. I am not aware of any other area of the department that has done what you have outlined. Senator FAULKNER-Are you aware of whether the strike team has sought legal advice in relation to disruption activities? Ms Siegmund-No, I am not aware of that. Senator FAULKNER-Who would be able to assist me with that? Mr Killesteyn-We can take that on notice. It is a fairly broad description of `disruption activity'. If you start to break it down in terms of the various types of activities that are being undertaken under that broad heading, then in many cases the issue of the legality does not arise. The information campaign, at least on my assessment, would not invite a question of legality, but if you started looking at other- Senator FAULKNER-No, I would assume that you are absolutely right. An information campaign would not, but I am wondering about other elements of the disruption campaign that might. Mr Killesteyn-And all I am saying is that, until you get down to a specific suggestion of a specific activity which might, on first principles, raise suspicions about the legality, then we really cannot- Senator FAULKNER-Well, call me suspicious- Mr Killesteyn-I am not calling you suspicious. Senator FAULKNER-but I want to know now whether you, Mr Killesteyn, have ever had raised with you any concerns about the nature or legality of any of the disruption activities. Mr Killesteyn-None at all. DIMIA is not an agency that has a role or a function or a mandate to be involved in disruption activities that might invite some sort of question as to its legality. That is not our role. We are not a law enforcement agency. Senator FAULKNER-No, I appreciate that, but you do have officers in the strike team. Ms Siegmund-As I mentioned, the role of the strike team is investigations leading to, hopefully, prosecutions. Their aim is to investigate the persons behind the organised criminality, CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2003 then bring that to a prosecutions brief with DPP, hopefully leading to a successful outcome of that prosecution. With that role in mind, I do not think that that is really what I would call disruption activities, other than that they are attempting to arrest or prosecute some of the main organisers. I suppose in that sense you could call that disrupting a criminal network of some kind. Senator FAULKNER-But you also have your offshore compliance and liaison officers in Jakarta working very closely with the AFP there, haven't you? Ms Siegmund-Yes. As I mentioned, the role of our compliance officers in Jakarta-we now have three there-is to look at the whole issue of people-smuggling in their region, which is Indonesia, and to report back to us on what is happening. For example, have they picked up information from their Indonesian host government-and from other embassies there, the Dutch, the German, the Canadian and New Zealand-on what is happening? Are people moving through the area and out again? Are there more people trying to attempt to leave illegally through the airports? Have they noticed movements of varying nationalities into Indonesia or not? What kind of work is the host government doing? What are their attitudes to people-smuggling? What are the visa regimes and so on? So we have tasked them very strongly with doing that kind of level of reporting back to us so that we know what is going on up there. Mr Killesteyn-Can I add to that that we pay very careful attention to the role that our overseas compliance officers undertake. It is very clearly laid out to them that they are not law enforcement officers; they do not involve themselves in any clandestine activity. They are simply there collecting information that is generally and openly available. Senator FAULKNER-Are clandestine activities taking place there? Mr Killesteyn-I am making a point about my officers; I am not making a point about anybody else, nor am I reflecting on what might be going on. All I am suggesting is that that is the very clear role of DIMIA compliance officers. They are collection points that feed into our intelligence analysis. There are clear limits. Senator JACINTA COLLINS-Mr Killesteyn, did I mishear earlier? I thought Ms Siegmund said that the compliance officers were involved in the information campaigns. Mr Killesteyn-Yes; in distributing- Senator JACINTA COLLINS-That is not an information collection activity. That was part of your disruption campaign activity. Ms Siegmund-I think I mentioned officers at the post across the board and certainly the extent to which our officers were involved in the actual distribution of leaflets and so on. I would have to check and get back to you on that but I think what I said to you was all of the officers at the post. Mr Killesteyn-An information campaign is- Senator JACINTA COLLINS-I accept that is an open and transparent activity but- CERTAIN MARITIME INCIDENT CMI 2004 SENATE-Select Thursday, 11 July 2002 Mr Killesteyn-Exactly. Senator JACINTA COLLINS-the earlier point was that you were saying that they were only involved in the reception of information. This is a different role to that. Mr Killesteyn-I acknowledge that there are broader roles that they provide, but I was simply making the point that in terms of their collection activity it is about dealing with open source information. They are not trained to do anything else. Ms Siegmund-Just to clarify it and to give you a complete answer, the other strong role they have at the post is to look at any case load fraud. For example, in terms of the applications that are presented at the embassy they have a role at looking at the question of whether we are being targeted by certain organised efforts to defraud us in some way. That is another very clear role they all have across the board. Senator FAULKNER-Have you been aware at any stage from any source of any concerns about the nature or legality of disruption activity? Ms Siegmund-No. I have not been aware of anything that you are describing. Senator FAULKNER-To what extent does your branch receive reports from the strike team? What is the interface like between the strike team and the Border Protection Branch? Ms Siegmund-It occurs in several different ways. First, there can often be daily contact, for example, between the analysts that work as part of the strike team and the analysts that work within my branch. There can often be that daily interchange between them. It occurs in our formal monthly board of management meetings. It also occurs at another level through written reporting. We provide them with copies of our departmental intelligence notices, and any reports that they might be producing would come to us. So it is a combination of verbal interchange between the staff of the two areas, and from our distribution list they would receive intelligence notices or product that we put out. Senator FAULKNER-But you are not aware of any legal advice that has been sought about disruption activity that may have caused concern or that may have been questionable in some way? Ms Siegmund-From us or from the strike team? No. Senator FAULKNER-I am just asking generally whether you aware of any. Ms Siegmund-No, I am not aware of any. Senator FAULKNER-You have mentioned that, in relation to DIMIA's responsibility with the disruption activities, one involvement is the information campaigns. Can we go to the next step of what other disruption activity you might be involved in? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2005 Ms Siegmund-The only other involvement we have is with a whole of government committee. I am not sure if you have been made aware previously that ONA chair a committee-again, a whole of government committee-called the Intelligence Oversight Committee. Again, that came out of the Coastal Surveillance Task Force recommendation that there should be better coordination of information flows between agencies. A subgroup of that committee, a much smaller group, looks at the intelligence in more detail to see how that could go to informing us for things like information campaigns and other such activities. DIMIA are involved in that committee as well as the oversight committee. Senator FAULKNER-Are there any written objectives that you could point me to for the disruption activities that DIMIA itself is involved in? Ms Siegmund-I am not aware of any, but I would certainly like to make sure of that and have the capacity to come back to you if there are any. It would be along the lines of information campaigns that we have been involved in and what they were aiming to do. But if there is anything in writing, I would certainly like to take that on notice and come back to you, if that is possible. Senator FAULKNER-From DIMIA's perspective, who is responsible for this and who carries it out? Ms Siegmund-The information campaigns? Senator FAULKNER-The disruption activities that you are involved in. Ms Siegmund-The campaigns in the past have been a combination of some involvement from our public affairs area, from my area and also from our international cooperation branch, which looks at issues to do with engaging countries in international cooperation efforts. Mr Killesteyn-But that is in terms of putting the material together. Once it gets to Indonesia, I guess there would be a broad range of people who might assist in distributing the pamphlets, making sure they are getting to areas where potential illegal immigrants are known to congregate and making sure that IOM are cooperating, because they also have communication links throughout areas of Indonesia where potential illegal immigrants are located. When you get to the dissemination of information, I do not think that it falls to any one group. AFP are probably involved as well. Ms Siegmund-I am sorry, I did misunderstand that. AusAID are another good example too, I think. They have actually done considerable work in a lot of the areas where these fishermen come from. Senator FAULKNER-Are you aware of concerns that the Indonesian authorities have expressed about disruption activities? Mr Killesteyn-No. Ms Siegmund-No. CERTAIN MARITIME INCIDENT CMI 2006 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-That has not come to the attention of Department of Immigration and Multicultural and Indigenous Affairs? Mr Killesteyn-No. Ms Siegmund-No. In fact, as I mentioned, we have done one component-the information campaigns-very much in conjunction with the Indonesians. Mr Killesteyn-I think it is fair to say that our relations with our counterparts, at least, in Indonesia-immigration in Indonesia-are very good. Senator FAULKNER-Wasn't it the immigration authorities in Indonesia who drove the AFP-INP protocol being laid aside? Mr Killesteyn-I have no knowledge of that. Senator FAULKNER-That has never been raised with the department of immigration? Mr Killesteyn-Not to my knowledge. Senator FAULKNER-Indonesian immigration authorities never raised such concerns with the immigration department in Australia? Mr Killesteyn-Concerns about disruption? Ms Siegmund-Or the MOU? Senator FAULKNER-The concerns that led to the protocol between the AFP and the INP being abandoned. Ms Siegmund-No. Mr Killesteyn-Not to my knowledge, no. Ms Siegmund-Indonesian immigration have never raised that with us, to my knowledge. Senator FAULKNER-Have they ever raised concerns with you about Enniss, who has some notoriety? With his work for the AFP, there was some publicity about him. You would be aware of the individual, I am sure. Mr Killesteyn-We are aware of the individual, but we have no knowledge of the person's activities, and nothing has ever been raised with the immigration department. Senator FAULKNER-I do not expect you to have knowledge of the person's activities. Mr Killesteyn-The answer is no. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2007 Senator FAULKNER-My question merely goes to whether concerns about his role or activities have ever been raised with DIMIA by Indonesian authorities. Mr Killesteyn-Not to my knowledge. Senator FAULKNER-Would you know if that were the case? I am assuming that the answers you are providing me-which I accept absolutely that you are providing in good faith-are provided on behalf of the department. You are not giving personal answers in that sense? Mr Killesteyn-No, that is true. We get a range of information coming in, such as cables from the embassy, and I certainly cannot recall receiving any information that goes to immigration Indonesia raising concerns about the activities of Enniss. Ms Siegmund-If I can clarify, Senator. I am not sure that Mr Killesteyn is aware that Indonesian immigration, at one time, in the course of another meeting with us that was not to do with Enniss-it was to do with other discussions they were having-raised concerns about a particular person who they thought might have some visa irregularities. It was just in that very general context. It was not raised again. I would prefer, because I do not have the dates in front of me, to get back to you on that. I did not bring that material. Senator FAULKNER-That is fair enough. I appreciate that. I would ask you, Mr Killesteyn, in relation to these questions, to check that the answers, which I do accept are being provided by you and Ms Siegmund in good faith on behalf of the department, are in fact able to be represented as being on behalf of the department. If there is some knowledge at a departmental level that you might not necessarily have, I hope that you would so inform the committee. Mr Killesteyn-Indeed. Senator FAULKNER-That is probably a given, but let me just say that. Ms Siegmund-My apologies too, Senator. That is why I interjected: because I knew Mr Killesteyn was not aware of that. Senator FAULKNER-I appreciate that. This is a question to Mr Killesteyn or Mr McMahon: in this instance, in your own role on the People Smuggling Task Force, were the disruption activities a regular topic of conversation or just for beefing things up, as it was described on 12 October? Was this something that was discussed on a more regular basis? I know that both of you were at least irregular attendees of the task force, if not regular attendees. Mr Killesteyn-I think that the minutes are probably reasonably accurate in that it would have been a fairly short conversation. Obviously, as I said before, the People Smuggling Task Force was concerned about the evidence of a surge and was, in a sense, giving a direction to the responsible areas to look for further opportunities for disruption. Beyond that, in terms of discussions on particular activities, I certainly cannot recall in my time and in the number of meetings I went to that we got down to chapter and verse of what disruption might be possible. CERTAIN MARITIME INCIDENT CMI 2008 SENATE-Select Thursday, 11 July 2002 As you have seen from Ms Siegmund's evidence, there were plenty of bureaucratic structures that could take that particular direction forward. Senator FAULKNER-But the notation that I am referring to about `being beefed up' was occurring at a time when the protocol was laid aside. Mr Killesteyn-That may be correct, but-at least in my recollection-it was not a matter that was linked during the discussions in the People Smuggling Task Force. Senator FAULKNER-Mr McMahon, are you aware of whether this was a once-only discussion at the task force or whether it cropped up from time to time? Mr McMahon-I think it may have come up more than once. But I have to say that, in many respects, the task force was trying to lay down some principles about what the broad activities of the Commonwealth should be, so it was not a discussion in detail about the nature of the activity. For example, there was the principle that the ships were to provide-or continue to provide-some sort of naval barrier and there was the principle that we should be doing as much as possible with Indonesia to stop or to disrupt the activities. It was a question not of detail but of principle, I believe. Mr Killesteyn-That is essentially the way that the People Smuggling Task Force operated. There was another group-in a sense, a subgroup-which dealt with logistics issues of establishing the processing centres. The People Smuggling Task Force would set clear directions and then others would carry those out. Senator FAULKNER-All I am asking is whether these disruption activities were discussed on one occasion or on more than one occasion. I think you and Mr McMahon have given answers to that, and that is fair enough and appreciated. At any stage were any concerns raised at the task force about the nature of that activity? Mr McMahon-Not ever, to my knowledge. Senator FAULKNER-Ms Siegmund, could you say how many DIMIA officials are now in Indonesia? I have heard about the three who are newly engaged. Ms Siegmund-We have had a compliance officer in Indonesia for the past six or seven years. We provided a second compliance person about two years ago and then a third one about a year ago. I can give you more precise dates if you would like. In terms of the operational side of Immigration persons at the embassy, I am not too sure how many are there, but I can find out. Mr McMahon-There are eight DIMIA officers stationed in Jakarta. One of them is a regional director, and there are another seven. Some are related, as Ms Siegmund said, to compliance type activities and some have no contact with those; they are there to supervise applications for permanent residency et cetera. Senator FAULKNER-What proportion would you say were working on countering people- smuggling activities, for example? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2009 Ms Siegmund-For the three compliance officers, that is their major priority. Mr McMahon-I would add that that is not their only activity, because they do things like assisting with the integrity of processing. Senator FAULKNER-Would all of the AFP raw intelligence that has been discussed a little at this committee today in relation to the SIEVX vessel have been received at the intelligence analysis section? Ms Siegmund-Certainly the AFP is one of the agencies that provide us with information and intelligence. Whether or not it was all of it, I do not know. We certainly rely on agencies to provide us with that so that we can then do our job, which is to do the analysis and provide the best picture. Senator FAULKNER-Given that it has been an issue of some public notoriety-that is, the sinking of SIEVX-has there been any internal assessment at all done within DIMIA of how that intelligence was handled and dealt with in relation to the SIEVX issue specifically? Mr Killesteyn-Not specifically reviewed. We have a fairly good process for collecting information. We have a range of relationships and meetings with those agencies. We feel pretty confident that the bulletins and notices that we provide are done in a timely way, that they are done with all of the intelligence that is given to us and that they are providing a good service to other agencies. In relation to SIEVX, all of the intelligence that we were getting at the time was produced and moulded into the intelligence bulletins that were being distributed around the other agencies. Senator FAULKNER-Have you seen the attachments to the material that Senator Hill has had tabled at the committee in relation to some of the inputs, particularly the DIMIA intelligence notes? Ms Siegmund-Yes, I have. I saw a copy today, which was in fact a time line. That was the heading. It listed by date. Senator FAULKNER-Have you been able to check its accuracy as far as it goes particularly for the DIMIA intelligence notes and any other DIMIA inputs? Ms Siegmund-Yes. They go by dates. From memory I think there were two errors. It was simply an error in the date that we had released something. Rather than it being on the first of the month, it had actually come out on the second of the month. Other than that, the departmental intelligence notices that they are referring to I have crosschecked with ours. Senator FAULKNER-Are you able to identify the two wrong dates? Ms Siegmund-I do not have them here in front of me. I would rather get back to you. One of them, I think, was 1 or 2 September and another one was 1 or 2 October. It was the change of the month. It was the first of the month that they had inaccurately drawn. CERTAIN MARITIME INCIDENT CMI 2010 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-The committee would certainly appreciate if you could take that on notice. Ms Siegmund-Certainly. Senator FAULKNER-But you have been able to check all the other dates? Ms Siegmund-Yes, certainly. Senator FAULKNER-And they are accurate? Ms Siegmund-Yes, they are accurate. Senator FAULKNER-Thank you. Is there anything that is missing from that time line? There are two issues about accuracy: what is there and whether there is any material not there that should be. Ms Siegmund-No, I have not found anything that is missing. Given that I saw it this morning and went through it, I basically compared it to our records of the DINs, the intelligence notices that we produced at the time. I have not found anything that was missing. Senator JACINTA COLLINS-Before Senator Faulkner goes on, are these intelligence reports classified at the moment? Ms Siegmund-Yes, they are. Senator JACINTA COLLINS-Can they be declassified? Mr Killesteyn-We can take that on notice, Senator. We previously provided the committee with one of the intelligence notices. As long as we go through the appropriate processes and check with our minister, we will certainly do that. Senator JACINTA COLLINS-At this stage of the process, we are obviously interested in any of those that pertain to SIEVX and the reports of its departure. I could spend the time now identifying the precise dates but, since you need to take this on notice, you can probably do it without them. Mr Killesteyn-There would be quite a few that relate to SIEVX. The issue with intelligence has been explained to you before-that there is a good deal of intelligence about the Abu Qussey boat. Senator JACINTA COLLINS-No, but what we can do-with retrospective knowledge-is deal with those that deal with what we now know to be the actual departure and detail associated with SIEVX after its departure. I am looking at any reports that relate to that period from about 14 October to probably about 24 October. Ms Siegmund-I was just going to ask for that clarification, Senator. Did you say the 18th? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2011 Senator JACINTA COLLINS-No, I am actually asking about the 14th. Certainly, in terms of this document, we still have not had explained to us what one of the footnotes refers to. I said the 14th to be on the safe side but, for instance, on this occasion it says: CDF/Secretary Task Force believe this to be a typographical error and should instead refer to 16 October 01. But if I look at this table, there was intelligence starting at about the 11th and an opsum on the 14th about the ship being delayed. It looks as if the critical date is probably the 17th, where the report says the vessel is reported moving from one port to another. Ms Siegmund-Yes, we did. Mr Killesteyn-We can start with the 17th. I guess there was a notice on the 18th as well. Ms Siegmund-And the 16th, 18th and 19th. Senator JACINTA COLLINS-The 16th may be the relevant notice if we are talking about, as I said, some lack of clarity at this stage about what the task force is referring to as the 16th. If you go forward to the notation on 18 October, there is a footnote there. That is why I am trying to err on the safer side in following through some of these issues. I would say that we need to start on the 16th. Ms Siegmund-Certainly, Senator, yes. Senator FAULKNER-But specifically in relation to 20 October, we know that Coastwatch received information from the AFP about the Abu Qussey vessel-the SIEVX. I will read what Rear Admiral Bonser said, just to give this some context, so we are all clear. At page 1631 of Hansard he said: The next indicator about the Abu Qussey vessel was on Saturday 20 October 2001, when Coastwatch received telephone advice from the Australian Federal Police that a vessel was reported to have departed from the west coast of Java the previous day. The information included advice that the vessel was reportedly small and overcrowded. The full detail of the advice is classified. That is what Admiral Bonser told this committee. I wondered, in relation to that, whether that same advice from the AFP was received in your intelligence analysis section. Ms Siegmund-No, it was not. I have reports for the 19th, which was the Friday, and the 22nd, which was the Monday. In fact, the advice on the 22nd later proved to be incorrect. We were not aware of that advice that you are referring to that came from the AFP to Coastwatch and that Rear Admiral Bonser was reporting on. We did not have that. Senator JACINTA COLLINS-What was incorrect on the 22nd? Ms Siegmund-Some of the information we relayed in the DIN later proved to be not incorrect but it did not have any of that information that you are referring to in it. That was on the Monday. Rather than incorrect, sorry, it was incomplete. Senator JACINTA COLLINS-When you say `we', does that encompass the strike team? CERTAIN MARITIME INCIDENT CMI 2012 SENATE-Select Thursday, 11 July 2002 Ms Siegmund-No, `we' is water protection branch, IAS, DIMIA. Senator FAULKNER-You certainly do not have any of that information on the 20th from the AFP. Is that usual? Is that standard operating procedure? Ms Siegmund-As I mentioned, we rely very heavily on our partner agencies to provide information to us, obviously. But I also accept the fact that, in these circumstances-particularly where an agency might feel that it has operational information that has to be passed quickly- the first instinct might be to ring an agency such as Coastwatch or Defence, rather than us, because it is something they are expecting action to be taken on or it is needed more urgently. We might be advised at a later time. In this instance we were not part of that intelligence loop. It was not provided to us. Senator FAULKNER-What is your normal turnaround time in reporting this sort of material? This was a Saturday, I think. Ms Siegmund-Yes. The normal procedure for me would have been to provide that advice via telephone, unless it was something that I could not do over the phone. But if it is of an urgent nature where my executive needs to be briefed or my intelligence analysts need to be briefed, I would normally do that over the telephone, particularly in the instances that you are describing: if it is at night, on weekends or whatever. If it is something that allows us to do some analysis and pull it together with the rest of what we know, we pump it out in a daily report that comes out. They are the DINs that we were referring to. Senator FAULKNER-Yes, there is your daily report but information of this nature that went, in this case, from the AFP to Coastwatch but did not go from the AFP to your intelligence analysis section. Ms Siegmund-Yes. Senator FAULKNER-I suppose what I am really asking is: what were the consequences of it not going? Were there any consequences of it not going there? Are we able to make that assessment? Ms Siegmund-Not adequately. Certainly, the consequence for us was that we were not aware of the full picture until much later. I am sorry, I am stating the obvious but, in terms of our intelligence picture of what was happening, we certainly were not in the full loop at the time and we did not become aware of the full picture until later. Senator JACINTA COLLINS-When did you become aware of the full picture? Ms Siegmund-Really, events were unfolding from the Monday onwards. I have looked at the DINs that we have produced for that period of time and, certainly, in terms of what we provide for you, I think you will probably see the same. I do not have to state that intelligence is not evidence, but one of the issues in this case and in others is that we started hearing about this particular organiser with this particular boat-which we initially thought was two boats-back in July. From that period on, the number of passengers varied, not dramatically, in terms of what we had. At one stage we thought there were two boats coming, not one, and the departure points CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2013 varied. So it is not unusual for information to come that is different from what you had previously, which is often hard to explain to members of your executive or, often, to a minister. But it is the facts of the situation that we are in. Events will unfold, we learn more as we go along or we learn something differently. In the case that I am referring to, from the Monday onwards, yes, we gleaned more information through the media, through IOM and through other agencies, and learned then of the gaps that had been missing previously. But certainly we were not aware of it on Saturday, 20 October. Senator FAULKNER-So the group that we established a little earlier in tonight's hearing was the key intelligence analysis outfit in relation to countering people-smuggling, which I think was the qualification we spoke of, actually does not know about this key piece of information. This key piece of information was not passed to your Intelligence Analysis Section. Did you know that this boat had sailed, before it sunk? Ms Siegmund-We had varying reports that the boat had left and from where it left, which were then rescinded. We later found out that it had not sailed. That unfortunate pattern basically started occurring from about September onwards, where there were stop-starts in terms of reporting that the boat was leaving and then not. Senator JACINTA COLLINS-This is not unique to SIEVX though, is it? Mr Killesteyn-No, it is not, Senator. Ms Siegmund-Did you say it is not unique? Senator JACINTA COLLINS-That pattern is not unique to SIEVX. Ms Siegmund-No, it is certainly not. The other issue is, at that time, we had up to six boats that we thought were all leaving at the same time. We had reports of them all leaving around the same time. Senator JACINTA COLLINS-They are the ones that the people-smuggling task force regard on 18 October as being multisource reports of a high level of confidence. Mr Killesteyn-That is correct, but there is never any definitive advice about the departure of a vessel. We have seen time and time again that information that says the vessel has departed turns out to be incorrect. The other point that I would perhaps make- Senator FAULKNER-But you were at that meeting on the 18th, weren't you, Mr Killesteyn? Mr Killesteyn-Yes, I was. Senator FAULKNER-So are you able to say whether any of that multisource information is provided via your Intelligence Analysis Section? CERTAIN MARITIME INCIDENT CMI 2014 SENATE-Select Thursday, 11 July 2002 Mr Killesteyn-The actual information that was provided to the people-smuggling task force on the 18th would have come from the DIMA intelligence notice issued on that day. Senator FAULKNER-Let's go through that. On 18 October, we know that part of the task force minutes says: Further Prospective Arrivals Intelligence re 2 boats with total 600 PUAs expected at Christmas, with one possibly arriving today, a further 3 boats with total 600 expected at Ashmore, with earliest arriving Monday. Some risk of vessels in poor conditions and rescue at sea. No confirmed sightings by Coastwatch, but multisource information with high confidence level. Are you able to say whether that information contained within the people-smuggling task force minutes actually comes from your Intelligence Analysis Section? Mr Killesteyn-The answer is yes. There is a good deal of symmetry between the minutes that you have just referred to and the DIMA intelligence notice that was issued on the 18th. But I make the point that, specifically in relation to SIEVX, the DIMA intelligence note does not make any assessment about the seaworthiness of the vessel. That particular reference is made in relation to another vessel associated with another smuggler. Senator FAULKNER-Doesn't the first dot point refer to SIEVX? Mr Killesteyn-Are you referring to the minutes of the meeting? Senator FAULKNER-Yes. Mr Killesteyn-All I can say is that it is a summary-the minutes are a cryptic summary if you like-of the information that was provided and again I did not write the minutes. Senator FAULKNER-No; sure. Mr Killesteyn-All I can suggest to you is that in the actual intelligence notice from 18 October the reference to the seaworthiness of a vessel is made in relation to another one, not the SIEVX vessel. Senator JACINTA COLLINS-This refers to vessels. Are you saying that is not accurate? It says: `some risk of vessels'-plural-`in poor condition and rescue at sea.' Ms Siegmund-The intel note on 17 and 18 October both refer to-as I mentioned, there were at least six or seven boats that we were concerned about at that time, including the SIEVX boat as it transpired. Senator JACINTA COLLINS-As one boat or as two at that point in time? Ms Siegmund-We had conflicting advice. By 18 October I believe we had it down to one. The other commentary was to do with another organiser who had previously used boats that had CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2015 been in a very poor condition. I was not at the meeting. I am not sure whether that is an amalgamation of those points taken out of the DINs or not. Senator FAULKNER-Mr Killesteyn was there. Fair enough if you were not there but what it says is: Intelligence re 2 boats with total 600 PUAs expected at Christmas ... Many have jumped to the conclusion-I, of course, do not jump to any conclusions necessarily-that the two boats are SIEV6 with 200 aboard and SIEVX with approximately 400 aboard. Are you able to shed any light on that, Mr Killesteyn? Mr Killesteyn-No. However the minutes were crafted I cannot comment on but all I am suggesting is that the DIMA intelligence notice at the time, issued on 18 October, referred to both the Qussey vessel and vessels associated with another organiser. The specific reference in the intelligence notice to a vessel in poor condition is in relation to the second organiser. There is no other reference. Senator FAULKNER-So what happened to the second Abu Qussey vessel? Ms Siegmund-It never eventuated. It turned out to be just one. Senator FAULKNER-It turned out to be one. Ms Siegmund-Yes. That was early reporting where we thought he was sending two boats. Sorry, not early-it was off and on. Senator FAULKNER-Let us go back because I think it is absolutely crucial. I understand that Mr Killesteyn qualifies what is written in the People Smuggling Task Force minutes. I understand that point that you have made about the nature of them. I would have made that point too given what we know about them at this stage. That is fair enough. I am not critical of that. I understand the point that you make. I want to focus on that first phrase: Further Prospective Arrivals * Intelligence re 2 boats with total 600 PUAs expected at Christmas ... Is it possible for us to conclude from the primary intelligence reports that you have and your original assessments from your intelligence analysis section whether that does refer to two vessels-one, SIEV6 with around 200 people on board and, the other, SIEVX with 400 on board-both expected to go to Christmas Island? Can we draw that conclusion? Many have and on the surface it seems to be a reasonable enough conclusion to draw. I do not draw it myself necessarily but can you shed any light on that? Ms Siegmund-I do not think we can. I think possibly that conclusion is drawn from the knowledge we had after the event of the 400 figure. I am looking at the DIN at the moment. The numbers we had reported to us in relation to Qussey's boat ranged from 150 to 250 at varying times. The figure of 400 came to our attention after the event of the tragic sinking. On the day CERTAIN MARITIME INCIDENT CMI 2016 SENATE-Select Thursday, 11 July 2002 that you are referring to, in terms of the task force, there were at least three organisers that we were concerned about who potentially were going to send boats through to Christmas Island. The numbers certainly would have added up to 600-plus, spread across those organisers. But, in terms of the Qussey vessel at that time, our estimate was still that it would be possibly carrying up to 250 passengers. Senator FAULKNER-But, you see, the task force minutes break this up into, effectively, five boats: ... 2 boats with total 600 PUAs expected at Christmas ... a further 3 boats with total 600 expected at Ashmore ... Ms Siegmund-Yes. Senator FAULKNER-Then it says: Some risk of the vessels in poor condition and rescue at sea. So that is five vessels anyway. Ms Siegmund-Yes. The other problem too was that the two vessels- Senator FAULKNER-But we know that SIEVX was going to Christmas Island too, don't we, Mr Killesteyn? Mr Killesteyn-We do, but- Senator FAULKNER-And we know that SIEV6 was going to Christmas Island. Mr Killesteyn-All I am suggesting is that-and it is probably a broken record now-the reference to the condition of the vessels was a general reference, and there is nothing in the DIN which suggests that it was a specific reference to any specific boat. Senator JACINTA COLLINS-Let's put that reference aside for a moment and go back to the numbers, though. Mr Killesteyn-Sorry, if I can retract that, it was a specific reference in relation to only one of the boats. I think we have already made the point of how the minutes were constructed of the end of the day. Senator JACINTA COLLINS-But, leaving that issue aside, it is difficult to understand how these numbers were constructed to two boats. Ms Siegmund-I will try again to clarify it. It is one of the frustrations we had at the time too, trying to keep track of numbers of boats where and when. It is a complex issue. As I mentioned to you, this is the report of the 18th. Our best reporting was that we thought the Abu Qussey vessel, at that time, was going to be carrying up to 250 passengers-so that is one going to Christmas Island. Another vessel that we also felt was going to Christmas Island within that same time period-in fact, a week-was from a different organiser, and we had had reports of CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2017 between 400 to 500 PAX. We did not know exactly how many we were going to get onboard the vessel; we never do. We can only go on the reports that get given to us. Sometimes they are roughly accurate; sometimes they are way off, because you never quite know, at the time that they are boarding the vessel, how many will get on and how many will not. I have to say that I am trying to guess something that I was not privy to, but I am assuming there are two boats from our intel reports-yes, we have two boats heading to Christmas Island. There is a third organiser, as I mentioned to you, who also uses Christmas Island, but we had no firm timeline on that person. Between the two, one with 250 and one with 430 to 500 is possibly where they got the 600-plus from. But, again, I am trying to look at what I have got in front of me and make an assumption of what might have been in their mind. I can only assume from what I have got written here. Senator JACINTA COLLINS-What was the size of that second boat? Is that SIEV6 that you are talking about there? Ms Siegmund-I do not know. I would have to take that on notice, and I do not have anything here about the size of the vessel. Senator JACINTA COLLINS-But you would be able to trace back through intelligence and ascertain that. Ms Siegmund-Yes, certainly. Senator JACINTA COLLINS-The next point is: No confirmed sightings by Coastwatch. Why would Coastwatch be surveying that area? We understand that that zone had been vacated by Coastwatch and that it was now Defence. Mr Killesteyn-I cannot offer any comment on that. Ms Siegmund-No, I am not sure of the zones. Certainly Coastwatch was still undertaking surveillance operations, but I think we would have to try and take advice on where the Defence and Coastwatch zones intersected. Senator JACINTA COLLINS-Coastwatch has clearly told us that Christmas Island was not their zone at this period in time. This is one of the reasons why as part of the Defence document there are Orion PC3 surveillance maps. They are not Coastwatch maps Ms Siegmund-Yes. Mr Killesteyn-That may go to the construction of the minutes. Ms Siegmund-Perhaps it means full stop, as opposed to near Christmas Island. I do not know. They certainly were still doing surveillance, as you have stated. Perhaps it meant- CERTAIN MARITIME INCIDENT CMI 2018 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-Yes, but I think that they had moved over to the Torres Strait. I stand to be corrected on this but I do not think they were even doing Ashmore. Ms Siegmund-I do not know. Without referencing or going back to them, I do not know what their flight patterns were on that date-or for that period, I should say. Senator JACINTA COLLINS-Let us move on to the 19th, then-any of the information that you had available on the 19th. We still have a report in this Defence document that the SIEVX is a possible arrival, as it was reported to have departed. Was that based on any new intelligence or is that still the same information available from the 18th or 17th-or indeed the 16th if you read the footnote on this document? Ms Siegmund-On the 19th, in terms of the Qussey vessel, we again report that we felt it was up to 250 passengers. There had been reports that it had possibly departed from a particular area in Indonesia which made it, I think, the sixth or the seventh locality we had mapped out where- Senator JACINTA COLLINS-So it was not the same locality as the earlier report that you were relying on on the 18th? Ms Siegmund-On the 18th I do not think we had it departing from a particular locality. But this location in Indonesia has been mentioned before. It is an area that we know boats have left from in the past. I am trying to be careful about how much detail I go into and obviously we will look at the issue of trying to provide you with this separately. To try and answer your comment as best I can now, certainly on the 19th we were still working on that 250 figure in terms of numbers of passengers and a possible probable departure from a place in Indonesia. We can certainly provides you with a map as well later, if you like. Senator JACINTA COLLINS-A possible probable? Ms Siegmund-It is the terminology we have to use because it is not an exact science. Senator JACINTA COLLINS-I understand that but for some reason or another you have a level of intelligence which- Ms Siegmund-Let me read out the exact words. Senator JACINTA COLLINS-leans you more to the probable rather than a possible. Is that it? I understand there are levels of certainty in this but I am just trying to understand what yours was. Ms Siegmund-I am sorry? Senator JACINTA COLLINS-I am saying I understand that there are levels of certainty in this but I am trying to understand what the assessment was at that point in time. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2019 Ms Siegmund-The terminology used was, `Abu Qussey's boat carrying up to 250 passengers that reportedly departed from probably'-and then it gives the town; the location- `on Tuesday night has not yet been sighted.' Senator JACINTA COLLINS-Not yet been sighted by who? Ms Siegmund-Anyone, full stop. Well, either that somebody has reported it within the Indonesian archipelago-or Defence or Coastwatch; anybody. Senator JACINTA COLLINS-Okay. Ms Siegmund-Often if vessels were reportedly departing and then suddenly you did not hear from them, sometimes it was because they-depending on the weather, sometimes the Indonesian authorities got reports from Indonesian nationals who had sighted them within the archipelago because they had taken into an island to take cover. Senator JACINTA COLLINS-That reported departure from that location, was the source of that data separate to the source of the data the day before? Ms Siegmund-I would have to come back to you on that, I think. Senator JACINTA COLLINS-I am trying to understand what the level of corroboration of the departure was. Ms Siegmund-It was the same source. Senator JACINTA COLLINS-The only new thing-and correct me if I am wrong-is that it is actually nominating a probable departure location? Ms Siegmund-No. That was also listed on the 18th-the same place. Senator JACINTA COLLINS-When did you receive that source of data? Ms Siegmund-Not on the 17th, but on the 18th and 19th as being a likely departure point. Senator JACINTA COLLINS-You received this intelligence on the 18th and you resighted it again on the 19th? Ms Siegmund-Yes. But just to clarify, that particular location within Indonesia had been mentioned before, as had others. Senator JACINTA COLLINS-As a possible departure place? Ms Siegmund-Yes. Senator JACINTA COLLINS-Did you have any other sources in relation to SIEVX at this stage? CERTAIN MARITIME INCIDENT CMI 2020 SENATE-Select Thursday, 11 July 2002 Ms Siegmund-With relation to where it had departed from? Senator JACINTA COLLINS-Yes, in relation to the fact that it had departed and where it might have departed from. Did you have any other sources on the 18th or 19th to that effect? Ms Siegmund-Just to clarify, are you asking if it is single sourced or multiple sourced information? Senator JACINTA COLLINS-Yes. In fact, go back to the 17th in relation to that question. Mr Killesteyn-I do not know whether it helps, but each DIN is not necessarily issued with absolutely brand new information. It essentially builds up over time, so we could be repeating ourselves. Senator JACINTA COLLINS-I understand that. That is why I am asking whether it was the same source that was referred to on the 18th and 19th. Ms Siegmund-Yes, it was. Senator JACINTA COLLINS-We have had that answered. What I am trying to ask is: from the 17th onwards, how many sources of information did you have? Ms Siegmund-I would have to take that on notice. Senator JACINTA COLLINS-If you take that on notice, we also need to know what the consistency between those sources was. If you come back to me and say, `Yes, we had multisource data,' the next obvious question is: how consistent was it? Was it corroborating the other sources, or was it contradictory? Ms Siegmund-In general terms, you either get single or you get multisource-obviously. But we would expect multisource information to corroborate. If there was a difference, we would probably report it as such-that one source said this and another source said that- because that is also part of our assessment process that we need to go through with the intelligence. Senator JACINTA COLLINS-If that is the case, it surprises me that in relation to SIEVX you are not now able to say to me that before it sank you only had single source information or multisource information, because the critical issue there is the level of corroboration before it sank. Ms Siegmund-Certainly. You are quite right. There are two issues. One is that I would need to go back and double-check the sources on here to definitively say to you that the source I have in front of me is either single or multisource. Secondly, we have been very careful about the language we have used in these reports, as you will probably see when you get them-probably; I am using the terminology-because we were not convinced that we had a definitive number of passengers and/or point of departure. We were very careful about how we worded that, because we did not want to give the impression that what we were putting out in these intelligence notices was fact-that it was a definite. It was very important, given that these notices went out CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2021 to a very wide range of agencies. So we were very careful about how we worded it. But what you then get is something that says `probably' and `possibly'. We have to use that kind of terminology. Senator JACINTA COLLINS-Let us move on to the next day-the day when you did not receive the AFP intelligence. Did you receive any additional intelligence that day? Ms Siegmund-No. The order of the DINs goes the 19th, the 22nd, the 23rd, the 24th- Senator JACINTA COLLINS-Is that usual? Is that a weekend thing? Ms Siegmund-The DIN would have been produced on the Monday in a written form, but it is not unusual for us to be contacted either at night, after business hours, or weekends. Senator JACINTA COLLINS-But what I mean is, for the reports to go out, is it usual that there would not be a report over the weekend period and the Monday report would catch up on whatever intelligence had come through? Ms Siegmund-Yes, that is usual. Senator JACINTA COLLINS-What day of the week was the 20th? Ms Siegmund-Saturday. Senator JACINTA COLLINS-If it was not unusual for you to receive phone calls and such like over the weekend, did any such calls occur? Ms Siegmund-No. Senator JACINTA COLLINS-So then the information that you put out on the 22nd that ending up being incorrect, as you have said- Ms Siegmund-Incomplete. Senator JACINTA COLLINS-Sorry-incomplete. Was there anything new to the intelligence you put out on the 19th? Ms Siegmund-On the Monday report we were still reporting that it had not been sighted, but the change was that we now had information that the vessel was possibly carrying up to 400 passengers. So that is a change. Senator JACINTA COLLINS-If it did not come from the AFP report, where did that information come from? Ms Siegmund-I am afraid I cannot provide that information for you. CERTAIN MARITIME INCIDENT CMI 2022 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-Is that because you do not have it or because there is a classification problem? Ms Siegmund-There is a classification problem. Mr Killesteyn-We really do need to go through a declassification exercise. Senator JACINTA COLLINS-I am happy for you to say these things in relation to particular areas. Ms Siegmund-That might solve the problem though, too. If we go through the classification problem that might answer your question. Senator JACINTA COLLINS-I may also be able to reframe the question which satisfies the issue that I am exploring without it being problematic. Can you say to me that it was different to the AFP reported data? Ms Siegmund-No, I cannot say that. Senator JACINTA COLLINS-Again, the same issue of classification? Ms Siegmund-Yes. Senator JACINTA COLLINS-Was that the only change? Ms Siegmund-With regard to the Abu Qussey vessel, yes, we were still maintaining the same intelligence in the area from where we thought it had departed. Senator JACINTA COLLINS-Did the information that you got before the report on the 22nd actually corroborate the departure? Ms Siegmund-No. We were still making an assessment that we believed it was that same town or area from where the vessel- Senator JACINTA COLLINS-So the new information that told you there were 400 passengers did not corroborate the departure. Ms Siegmund-No. Senator JACINTA COLLINS-Did you usually receive things such as the NORCOM intelligence summaries? Ms Siegmund-Yes, we have occasionally received NORCOM intelligence reports. Senator JACINTA COLLINS-Did you receive the one from 20 October? It stated that: CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2023 NORCUM INTSUM assesses there is a high probability of the vessel arriving vic Christmas Island from 21 Oct 01, and that due to its overcrowding and need to maintain stability it may be limited to a slow passage, and therefore a later time of arrival could be expected. Ms Siegmund-I would have to take that on notice. I do not have that information in front of me. Senator JACINTA COLLINS-It would be of concern to your unit though, if the information arrived on the 20th, anticipating an arrival at Christmas Island on the 21st, and you had not been contacted over the weekend. You would be concerned about your internal administration, wouldn't you? Ms Siegmund-Yes, certainly it would be of concern. As I mentioned to you though, in terms of either after hours or weekends, the procedure would normally be for agencies- whether it is Coastwatch, NORCOM or whomever-to contact us by telephone rather than rely on a report, for example, that is sent- Senator JACINTA COLLINS-On a fax? Ms Siegmund-Yes, on a secure fax or by some other means, because they would know, obviously, that we were not there. Senator JACINTA COLLINS-Are you suggesting to me that, if NORCOM reached an assessment that there is a `high probability' of an arrival on the 21st, you should have received a call on the 20th? Ms Siegmund-I would have expected to, yes. Senator JACINTA COLLINS-Was there any follow-through on why that did not occur when you discovered after the 22nd that you had not been called? Ms Siegmund-Do you mean us following up with NORCOM why they did not telephone us? Senator JACINTA COLLINS-NORCOM, Coastwatch or whomever you felt was responsible for the lack of communication. Ms Siegmund-I will have to take that on notice and provide you with some detail. I think I made the point earlier, and forgive me if I am repeating myself, that we certainly rely on other agencies. We are in that position of having to rely on people feeding us information. One of the issues is where there are operational considerations, as I mentioned. If an agency decides that the information is to do with an operational issue, we might be third or fourth on the list for them to telephone. Having said that, we have always taken-I certainly have and I am aware that Mr Killesteyn and my staff have, too-every opportunity in every forum to continue to remind agencies that it is our role to collate and pull together all of the intelligence to do with illegal immigration and people-smuggling. It is our expectation that we would be provided with intelligence in as timely and accurate a fashion as possible. If events are unfolding in a certain operational context, obviously we understand that there is a need, for example, to ring the CERTAIN MARITIME INCIDENT CMI 2024 SENATE-Select Thursday, 11 July 2002 operational agencies before they ring us. But we still have the expectation that we will be part of that information loop. Senator JACINTA COLLINS-I assume, for instance, if this sort of information is being dealt with by the People Smuggling Task Force, where you are represented, your own people would be particularly conscious of that and the internal communication would occur. Ms Siegmund-Yes. Senator JACINTA COLLINS-So then the question goes to whether on the 20th or the 21st that information was raised at the People Smuggling Task Force. If we go to the minutes on the relevant days, Mr Killesteyn was there on the 20th and Bill Farmer and Christine Sykes were there on the 21st. The 21st was the day when one of the issues raised was to check whether `Defence P3 is maintaining surveillance over Christmas Island'. Mr Killesteyn, can you fill us in on why that issue was raised? Mr Killesteyn-Frankly, I cannot recall the discussions of the task force on those particular days. The point I would make in relation to the information that was not passed on on the 20th is that we have a clear focus, from the intelligence group, on building information around any impending departure, in particular. A lot of that information, as we said before, is then used in activities to try to prevent the departure or to frustrate it from happening in the first place. When you get to a situation in an operational environment, with Coastwatch and Navy patrolling particular areas, it then becomes a matter of trying to surveil and intercept the particular vessel. I suspect that the particular piece of intelligence we are referring to-from AFP to Coastwatch on Saturday 20-was around the process of interception as distinct from making sure that there was an opportunity to build it into a report. It was very much a focus on interception, and then dealing with the vessel and its passengers at that point. I cannot recall whether it was communicated at the People Smuggling Task Force. I would be surprised if it was not because of the level of representation that we had from the various agencies, but I have no specific recollection of that piece of information. Senator JACINTA COLLINS-If we go back to 20 October, which was the meeting you were present at, under the heading `Further arrivals' we have: Second boat expected at Christmas tomorrow. If arrives, assessment to be made whether possible to return larger vessel. Do you know which was the larger vessel? Were they talking about SIEVX as being larger than SIEV6 at that stage? Mr Killesteyn-I cannot recall, specifically. It is probably a bit obvious that the minutes are a bit cryptic. Senator JACINTA COLLINS-Yes, which is why we are sitting here asking questions. Mr Killesteyn-Exactly. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2025 Senator JACINTA COLLINS-It then goes on to say, `Arunta to relieve possible overcrowding.' My question there is whether that relates to the AFP report about how overcrowded SIEVX was. Mr Killesteyn-We are just speculating on whether that meant overcrowding of the SIEV or whether it meant overcrowding on Arunta, because the naval vessels were being used to ferry passengers off vessels to Christmas Island. Again, I cannot shed any real light on that. Senator JACINTA COLLINS-At that stage, according to the minutes, we had SIEV6 moored at Smith Point, with 222 people plus crew-so they were still on SIEV6. I understand in part what you say about DIMIA's role, with intelligence being more focused on departures and avoiding departures. But equally, there was the DIMIA role in terms of dealing with asylum seekers once they arrived at Christmas Island. I assume that Ms Siegmund's intelligence was relevant to that process as well. The minutes on that day in relation to SIEV6 point out that the 222 people plus the five crew were still moored on SIEV6 at Smith Point and that ministers are maintaining the public line that the government is still considering the handling of SIEV6. When you go down to the heading `Further arrivals', it talks about a `second boat expected at Christmas tomorrow'- which is the 21st-and that is consistent with the NORCOM assessment. It then says, `If arrives, assessment to be made whether possible to return larger vessel.' I do not know off the top of my head at the moment which was the larger or indeed what this assessment regards as the larger- the vessel itself or the number of people on it. Ms Siegmund-I am trying to look at the DINs that we produced and what you are relaying to me in the minutes. I am trying to see how they made a connection. Senator JACINTA COLLINS-The problem in part is that your DINs have not accommodated the information that was also discussed at the People Smuggling Task Force that SIEVX was anticipated as arriving on the 21st. Ms Siegmund-In terms of those exact dates you are quite right. Senator JACINTA COLLINS-And, if you go back to the NORCOM assessment, at a high level of probability. Ms Siegmund-I do not know what they are basing that high level of probability on either. Senator JACINTA COLLINS-It appears from other evidence we have had that it is based on the AFP report that you did not receive. The point that I am making is that it appears as though that AFP report was discussed at the People Smuggling Task Force on the 20th, by the status of information here, where DIMIA was represented as well-in fact, I think, well represented on that day by Bill Farmer, Ed Killesteyn and Vince McMahon-but still that information did not get to your own intelligence. You did not get a call from your own people. Mr Killesteyn-It may or may not have, Senator. I do not think we can take the minutes as absolutely verbatim as to what information was or was not provided, at least in terms of CERTAIN MARITIME INCIDENT CMI 2026 SENATE-Select Thursday, 11 July 2002 information that may not have been provided to our intelligence area. But the fact is that on the- Senator JACINTA COLLINS-`Second boat expected at Christmas tomorrow.' Obviously a report was made, probably consistent with what NORCOM had put in their report, that they were anticipating would arrive on the 21st, and that information was not relayed to the DIMIA intelligence unit, a fact confirmed by your own indication of what was in your report on the 22nd. Ms Siegmund-Senator, I have not relayed to you the full contents of the DINs. I am constricted in doing so because of classification issues and I apologise-that is an issue. I have taken on notice, though, whether I can, because I think it is important to try and do that. NORCOM received our reports. The way the DINs are set up-and we have provided some of these to you before-is that there is a summary section, we go through the current situation, then we do an assessment. The assessment we made on the 19th was that we anticipated that one of the vessels that we are talking about-it is not the Qussey vessel; it is the other one- would arrive off Christmas Island by the weekend. I do not know whether that statement has then translated into the 20th or 21st, because they are obviously the dates of the weekend, or whether that is where it has come from, but Defence obviously got our reports. They got this one on the 19th. Senator JACINTA COLLINS-That is SIEV6 that you are referring to, isn't it? Ms Siegmund-I do not know whether SIEV6 is this one. I have the name of the organiser for this one but I do not have it written as SIEV6, because that is not how we reported our intelligence at the time. We went on the basis of who the organisers were. Senator JACINTA COLLINS-Did you have the name of the ship: the KM Mulya Jaya? Ms Siegmund-No, as that was prior to its arrival. Senator JACINTA COLLINS-Okay. Ms Siegmund-But I can find that out. As you said earlier, we can backtrack it. My difficulty is in not being able to go through this in graphic detail with you to see how it then possibly relates. As I said to you before, the members of the People Smuggling Task Force had all of these reports in front of them, and that is what you do not have in front of you. Senator JACINTA COLLINS-No. And, again, that is why I am finding it problematic that the AFP report of the 20th had not been encompassed in your reporting until after the 22nd. That is what I am still finding problematic because, at the same time, as you said, you have even DIMIA officials attending the People Smuggling Task Force with your own reports in front of them with this gap of information in the DIMIA reports. Ms Siegmund-To ascertain how much of a gap it is I would need to look at the minutes and then compare them to my two or three complete DINs to try and answer that. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2027 Senator JACINTA COLLINS-Put it this way: you will be providing us with a declassified version. You may want to reconsider these questions when that information is available to us, and respond to anything that you think is outstanding with respect to this conversation. I suppose I should ask you the questions that way. It gives you the opportunity then to deal with them in the light of what facts we will later have before us. Ms Siegmund-I understand. Senator JACINTA COLLINS-Mr Killesteyn and Mr McMahon, you were both present on the 22nd, so I will ask you both this question. Can you explain to me the reference in the minutes-to the extent that you understand it-to the ship as being `SIEV8' and the comments: Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives. Mr Killesteyn-I can probably explain very little more than what is in the minutes. Senator JACINTA COLLINS-Mr Killesteyn, what was your understanding of the attribution of a number to a SIEV? Mr Killesteyn-It was essentially a sequential allocation as the SIEVs arrived. Senator JACINTA COLLINS-Done by whom? Mr Killesteyn-It is done within the unauthorised arrivals section of DIMIA. As I say, it is essentially a sequential ordering. Senator JACINTA COLLINS-But it is done within DIMIA, from your perspective? Mr Killesteyn-That is right. Senator JACINTA COLLINS-Defence tell us it is done within Defence-that they are the ones who number these ships as they intercept them. Ms Siegmund-Sorry, that was my error. We previously gave boats codenames. They were named after towns in Victoria or Western Australia. The SIEV numbering-1, 2, 3, 4-was actually done by Defence, you are quite correct. Senator JACINTA COLLINS-At what stage do they number a SIEV? Mr Killesteyn-We can only speculate, but I think the obvious answer would be that it is upon the boat actually arriving. Ms Siegmund-And also upon determining that it is in fact a SIEV. We have had sightings of vessels that have turned out to be inter-island ferries or fishing vessels. I would imagine that that would be the other issue. CERTAIN MARITIME INCIDENT CMI 2028 SENATE-Select Thursday, 11 July 2002 Senator JACINTA COLLINS-The earlier evidence we received in terms of SIEVX was essentially that we really did not know anything about it until after we were told that it had sunk. That information did not arrive until the 23rd, and yet, in these minutes, we have a report about this SIEV-which it has been accepted was SIEVX: Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives. It leaves this committee with some very serious questions about what precisely the discussions were that occurred at the task force in relation to SIEVX. I am going to ask both of you to give the committee your recollections of how SIEVX was discussed at the task force between the first reference-which I think was on the 18th-and this reference, very clearly marked in the minutes in relation to SIEVX, before we knew that it had sunk. Mr McMahon-I will talk from my recollection of it. This was like one of many boats which had come. Within the task force, we were quite used to receiving a report that a boat had left and then receiving a report that it had not left. I had a particular interest in the numbers coming, because I was looking after the infrastructure side, and I read those now as saying that there was a report, but nothing happened following that report. In other words, there was no information saying that it had left, nothing had been sighted-no flotsam had been sighted- and it was missing. We could have expected, the next day, to find that it had returned to port or that it had not actually left. The state of the intelligence at that stage was such that you would often get quite conflicting information, and in that discussion, as I recall, it simply said that we had no more information on the boat. There are different things you can look for to verify whether or not a boat is on the way, but none of those particular leads had given fruit. Senator JACINTA COLLINS-We have two corroborations of the departure on the 22nd. This is without even taking into account what other information DIMIA might have elsewhere on the public record that we are not aware of. Mr McMahon-With a departure, as has happened, we often find that they have returned to port or they have stopped a couple of hundred metres up the road. Certainly, from my perspective-and this was not my focus within the task force-it simply meant that we had no confirmation of where the boat might be. Senator JACINTA COLLINS-I appreciate the perspective and the focus you had in your role, but the concern at least I have, and possibly, more broadly, the committee has, is whose focus was the safety of life at sea issue. We have an AFP report from the 20th, saying the boat was `grossly overloaded' and that there were concerns for safety, but apart from references such as this in the minutes, we do not seem to see any safety of life at sea response to that report. Is one of the problems that nobody had that clear responsibility or focus? Mr Killesteyn-The focus of the People Smuggling Task Force was managing the surge in unauthorised arrivals. Information was being provided about the likely time of arrivals, there were naval assets and Coastwatch assets in the vicinity and, to the extent that safety of life at sea issues arose at that time, I imagine they would have been fulfilled. Here we had imprecise information about potential boats, and I guess it is a question of on what basis do you then go and look for a possible boat-when you do not even know where it is-to execute some possible safety of life at sea issue. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2029 Senator JACINTA COLLINS-There does seem to be some confusion. Again, whilst this was not your particular focus, it is obvious that this issue was at least discussed by the task force so I am discussing it with you now on that basis. But there is a difference between Defence maintaining some sort of regular surveillance pattern in relation to surveillance of potential arrivals and their actually responding to a safety alert of a grossly overloaded ship, and we seem to be getting to some conflicting information here. We have information, on one side, saying that a large search for this vessel was occurring and then, on the other side, we have Defence saying to us: `No, it was just regular surveillance occurring'. From the discussions at the task force, what was your understanding as to what was occurring? Was there a search for this vessel or not? Mr Killesteyn-As I said, there was a surveillance pattern in place, there was information, albeit imprecise, about the vessel potentially arriving, and the naval assets and Coastwatch were looking for the boat. Senator JACINTA COLLINS-So this reference on 21 October `Check Defence P3 is maintaining surveillance' has no meaning? You just told me you understood surveillance was occurring. Mr Killesteyn-Sorry, where are you referring to now? Senator JACINTA COLLINS-The last dot point on the minutes of 21 October: `Check Defence P3 is maintaining surveillance'. Whoever compiled these notes was obviously responding to some discussion or some question as to whether that surveillance was occurring. Mr Killesteyn-That may be the case, Senator. It was surveillance over Christmas Island that was obviously the major area or pattern of the search and surveillance was in place at the time. Ms Siegmund-I think there were several boats on the horizon near Christmas Island at that time. Senator JACINTA COLLINS-Mr Killesteyn, correct me if I am wrong, but I just want to be sure I understand what you are saying. You were not aware that Defence was indicating that they were actively searching for this vessel? Mr Killesteyn-What I am saying is that the whole of Operation Relex with the combined assets of Coastwatch and Navy was based on the surveillance of the normal areas in which the vessels arrive both at Ashmore and Christmas Island. That is what I am saying. That presumes that they are searching for vessels. Senator JACINTA COLLINS-In their normal surveillance patterns? Mr Killesteyn-In whatever pattern was being employed at the time. That is beyond my expertise, Senator. Senator JACINTA COLLINS-That may be beyond your expertise but again I am asking you this question in terms of being someone who participated in a number of discussions about these issues and that response just does not seem to sit with the response, for instance, of the CERTAIN MARITIME INCIDENT CMI 2030 SENATE-Select Thursday, 11 July 2002 dialogue between AusSAR and Defence over what was happening with this vessel. You have this dialogue, for instance: `Defence contacting AusSAR to say, "Just got your fax-what is your source?"' and AusSAR then saying `Coastwatch'. Defence says, `We already have a large search for this vessel for surveillance matters.' That language does not sit with a description that we would assume that we would pick this ship up under our normal surveillance. Mr Killesteyn-All I am suggesting is that in terms of specific activities of surveillance and pattern and so forth those were not matters that were discussed in any, again, chapter and verse in the People Smuggling Task Force. Senator JACINTA COLLINS-Okay, but there was a question of whether it was occurring over Christmas Island on 21 October? Mr Killesteyn-In relation to one P3, that would appear to be correct. Senator JACINTA COLLINS-But you have no knowledge of that? Mr Killesteyn-I have no recollection of it. Senator JACINTA COLLINS-Let us look at 22 October. This is not actually in the minutes but it is from our evidence from Katrina Edwards. Do you recall a discussion about issuing a safety alert? Mr Killesteyn-I am sorry, I don't. Senator JACINTA COLLINS-Were you present, Mr McMahon, on that day? Mr McMahon-I was and I do not recall it. Senator JACINTA COLLINS-You don't recall that either? Do you recall in relation to any of these SIEVs, many of which as has been recognised were unstable in terms of their seaworthiness, discussions about safety of life at sea issues at the People Smuggling Task Force? Mr Killesteyn-Actually I do not recall any such discussions. Mr McMahon-There were a number of discussions or references to the responsibilities associated with safety of life at sea. I am not sure whether that leaps to the next bit about going to look for them or whatever. Essentially, on a number of occasions, in discussion, when we were talking about what would be done in respect of particular boats, there was a clear spelling out by Defence of their responsibilities associated with safety of life at sea. I am not sure whether that goes to the point of your question. Senator JACINTA COLLINS-I am sorry, but could you please repeat the last bit. It is getting late; I did not pick up the last part of your point. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2031 Mr McMahon-What I am saying is that, if people are in the water, there would be automatic responses or whatever from the Department of Defence. I think you are asking a wider question as to whether, if they were looking at point X and there was a possible safety of life at sea issue at point Y, that would completely change your configuration to look at that possibility? I do not recall that sort of discussion taking place. Senator JACINTA COLLINS-As you said a moment ago, you do not recall any discussion about whether a safety alert should be made? Mr McMahon-No, I do not. Mr Killesteyn-In relation to SIEVX? Senator JACINTA COLLINS-Yes. Mr Killesteyn-No. As I suggested in my earlier evidence, we had had a significant arrival of a number of boats. All of them arrived safely, I guess, with the exception of this one. The advice in relation to SIEVX was never precise to the extent that it was overcrowded. Senator JACINTA COLLINS-Certainly from your point of view, because you did not get the AFP report. Mr Killesteyn-That only arrived after the event. The information about overcrowding arrived after it actually sank. Senator JACINTA COLLINS-The AFP report about the overcrowding arrived when these people were still in the water, and possibly some of them died in the time before they were picked up by Indonesian fishing vessels. We have yet to get to the bottom of why it took the time it did for intelligence that is clearly from the departure on the 18th to reach us on the 20th. That is an issue aside from this. But the next point, too, is that that information arrived on the 20th when these people were still in the water and there was limited response to it. And from your department's point of view, you did not even get that information in your own intelligence unit until after the 22nd. There are some very serious communication issues here. Senator FAULKNER-Mr Killesteyn, could you explain to the committee the request that the secretary put out in relation to inappropriate public comment from departmental officers that might compromise the conduct of DIMIA work. What is the background to that? Mr Killesteyn-My apologies; I missed your question. Mr McMahon-What date is that, Senator? Senator FAULKNER-I was interested in the instruction to all staff, both in Australia and overseas, that Mr Farmer put out on 20 June this year. Are you aware of that? Mr Killesteyn-I do not have a copy. I would prefer to see a copy before I comment. CERTAIN MARITIME INCIDENT CMI 2032 SENATE-Select Thursday, 11 July 2002 Senator FAULKNER-Did Mr Farmer put out a statement to all staff beginning with these words: Subject: All Staff You will have noted the increased public interest, particularly in the media, in some business activities of the portfolio in recent times. It goes on: One feature of this interest has been the protests held outside DIMIA offices around Australia. These demonstrations have caused inconvenience to some employees and I take this opportunity to thank you all for the professionalism you have displayed in dealing with these interruptions. Do you know the note I am referring to? Mr Killesteyn-Yes, I do now. Senator FAULKNER-Yes. Then it says: The increased public scrutiny of our activities provides a timely reminder of our obligations as DIMIA employees. It then goes on: In order to maintain this record- this is the good record- we all need to be aware that there may be occasions when a perception of a conflict of interest may arise. This may occur where your personal affairs have an impact, or may be seen to have an impact, on your work. Inappropriate public comment, for instance, may be seen as a conflict of interest and may create a range of problems including compromising the conduct of DIMIA work. And it outlines what `inappropriate public comment' is. One of them is: ... personal criticism of employees or clients of DIMIA, the Minister or the Minister's office. Can someone tell me what the background to this is? Mr Killesteyn-Firstly, that is a general minute which tries to deal with the whole question of ethics and integrity in the pubic sector. But what, from my recollection, prompted the note to staff were one or two incidents. One where, I think, one of our employees was seen as part of a group of demonstrators outside one of the buildings-I have forgotten whether it was Melbourne or not-and the implication of that incident was that the person was participating in the demonstration. That was investigated and, as I understand it, the person was simply observing what was going on rather than necessarily participating. Senator FAULKNER-But how does such a minute affect those who are giving evidence before parliamentary committees like this? CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2033 Mr Killesteyn-I hope it would not affect them at all. I do not think it would. Indeed, why would it? Senator FAULKNER-It is unethical to bag the minister, is it? Mr Killesteyn-No, I am not suggesting that. But you are suggesting that that is an invitation not to provide honest and open advice to a committee such as this. I do not see anything in that document- Senator FAULKNER-No, I am asking if it is. I am not suggesting anything. I rarely make suggestions, Mr Killesteyn; I merely ask questions. Mr Killesteyn-I am saying there is nothing in that document which would prevent a person from providing open and honest advice to a committee such as this. Senator FAULKNER-I see. And that is what: ... personal criticism of employees or clients of DIMIA, the Minister or the Minister's office ... means? It is not a shot across the bows? Mr Killesteyn-No, it is simply, as I said, that the background was a couple of incidents where innocent behaviour could be interpreted in a way which goes to the person's involvement in activities such as demonstrations. Mr McMahon-Senator, I believe that that statement is consistent with the APS Code of Conduct. The general principle within the Public Service- Senator FAULKNER-Why was there any need to put it out, then? Mr McMahon-There is occasionally a need to remind people of their obligations-and we do code of conduct training quite regularly-because some people forget. The general principle within government, as I understand it, is that people are free to express their opinions, and they can do it in newspapers or wherever, but that there is a conflict of interest when you actually start expressing views in respect of the portfolio that you are working in, because it can imply that the way you go about your duties within the portfolio may be tainted. I believe that that is an accepted APS principle reflected in the code of conduct, which is a regulation for the Public Service. Senator FAULKNER-What about honest and open advice that might be critical of a minister or his office? Mr McMahon-In respect of a public forum, it is inappropriate. In respect of internal advice, the expectation is of frank and honest advice. Senator FAULKNER-Is this public advice that you are providing here tonight? What should my expectation be? CERTAIN MARITIME INCIDENT CMI 2034 SENATE-Select Thursday, 11 July 2002 Mr McMahon-The expectation here would be that we provide frank advice about questions of fact and that we leave matters of policy alone. Senator FAULKNER-Sure. I do not think you have been asked questions about policy, have you? I do not think other officials who have come before the committee have. Most senators are pretty careful about those sorts of things and appreciate that they are matters for the political representative, the minister-although it is very difficult when ministers are so reluctant to front up to committees. But even so, even under such severe provocation, I do not think you would find too many senators asking those sorts of policy questions to witnesses. Mr McMahon-I think the comment that Mr Killesteyn made earlier is that I would be astonished if the secretary, in writing that, believed that he was putting any boundaries around the sort of advice that we would give before a committee such as this. Senator BRANDIS-You are not really giving advice, are you, Mr McMahon? We are not saying it is in relation to matters within your knowledge. Senator FAULKNER-It is only a filler, Mr McMahon, while Senator Collins looks up what she is going to do. I am relieved at that. Anyone outside this committee who is interested in this extraordinary document is welcome to a copy. Mr Killesteyn-We will certainly reject any assertion- CHAIR-Was there a rash of criticism of the minister from inside the department? Mr Killesteyn-No, Senator. CHAIR-Then why was it necessary to put out a statement saying that it is not on? Mr Killesteyn-It is a timely reminder to staff who might put themselves in that position- Senator FAULKNER-To watch themselves. Mr Killesteyn-inadvertently- Senator FAULKNER-Come on! You are pulling our leg now. Mr Killesteyn-I am giving you my assessment of the situation, and I reject any implication or assertion that that document has been issued to prevent people in any way from giving honest and open advice to the committee or whomever. Senator JACINTA COLLINS-This is in part related to that question. I have not been able to find the place again in the minutes, so we might both need to deal with this, depending on where we go with the question. There is a report in the minutes that there was a leak from the task force and an AFP investigation. Are you aware of that, Mr Killesteyn? Mr Killesteyn-Yes, I am. I recall reading it in the minutes just recently. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2035 Senator JACINTA COLLINS-I, like you, at the moment and at this hour cannot find the precise reference, but was that related to this issue? Mr Killesteyn-To SIEVX? Senator JACINTA COLLINS-No; was the leak related to Senator Faulkner's issue and why that notice was sent out? Mr Killesteyn-No, Senator. As I explained, there was the incident-I think it was a demonstration in relation to detention policy-where one of our officers was observed with the group. The implication of course was that he or she-I cannot recall even that, now-was participating in the demonstration. Senator JACINTA COLLINS-Are you aware of any resolution of the AFP investigation? Mr Killesteyn-I would have to take that on notice. Senator JACINTA COLLINS-If it was someone from your own department you would be aware of it, wouldn't you? Mr Killesteyn-We are very confident that those sorts of things do not happen in DIMIA. Senator FAULKNER-Not confident enough not to put out a document- Mr Killesteyn-There was no AFP report to our department in relation to that particular leak that implicated any DIMIA employee. Senator JACINTA COLLINS-Also in these minutes-Ms Siegmund, you might be able to help us here-early on, on 13 September, there is a reference to the `poison pill' boat. Do you know what that was? Ms Siegmund-I am aware of the issue you are referring to, but I am unable to provide you with the details about that, because of the classification. If you wish, that would be another DIN that we could have a look at declassifying. Senator JACINTA COLLINS-Okay. Was that an actual boat that was named the poison pill boat? Or can you not say that much either? Ms Siegmund-No, it was not the name of a boat. CHAIR-Was it a designation assigned to a boat. Ms Siegmund-No. CHAIR-Was it a colloquial way of referring to a boat? CERTAIN MARITIME INCIDENT CMI 2036 SENATE-Select Thursday, 11 July 2002 Ms Siegmund-It was referring to a boat that contained that issue, rather than calling the boat that name. Senator JACINTA COLLINS-`Let me in or I'll take a poison pill'-was that the threat? Ms Siegmund-I would prefer to- Senator JACINTA COLLINS-Declassify what you have. Ms Siegmund-be able to hand you the DIN, to be honest. I will put it on that list in terms of those dates. Senator JACINTA COLLINS-My final question is in relation to assessments that SIEVX had returned to Java. The only indication we have of such an assessment comes from the NORCOM intelligence summary of 22 October. It is not sourced and does not refer to any evidence. Are you aware of such an assessment? Ms Siegmund-That SIEVX had returned to Java? Senator JACINTA COLLINS-Is there any basis for it? Ms Siegmund-On 22 October, in our reporting regarding SIEVX, as I mentioned to you, the change was to the number of passengers, and it was still the departure from the same place. I do not have anything in that report regarding a possible return. I am just looking at 23 October. No, I do not have anything about a possible return to Java on the 22nd. Senator Collins, in terms of the DINs that we would like to look at getting declassified and presenting to you, I have got 13 September and the 16th-through to which particular date? Senator JACINTA COLLINS-As far as it is relevant. The 23rd was when CNN reported, but if your intelligence has been delayed by another day or so then I would like to see it. Mr Killesteyn-In terms of Senator Collins's questions around SIEV8, I appreciate that tracking the numbers with particular vessels is proving problematic, and I am probably just going to add to that, but there is a reference in the minutes of 29 October- Senator JACINTA COLLINS-That is the SIEV8. They renamed another ship SIEV8. We have had that explanation, yes. The explanation we have been given is basically that whoever compiled these notes incorrectly attributed SIEVX to be SIEV8 because it had not actually been intercepted yet and the number 8 was actually attributed to a later ship carrying 33 Vietnamese. Mr Killesteyn-That is right. I just wanted to clarify. Senator JACINTA COLLINS-The reference in these minutes to SIEV8 on 22 October or thereabouts is actually SIEVX. Mr Killesteyn-Yes. CERTAIN MARITIME INCIDENT Thursday, 11 July 2002 SENATE-Select CMI 2037 Senator FAULKNER-Could you please take on notice to provide the committee with the informational material that was printed for distribution as part of the disruption activities in Indonesia. I expect this is not in English. Ms Siegmund-I am sure we would have an English copy I could provide to you. CHAIR-Would you like a T-shirt as well, Senator Faulkner? Senator FAULKNER-I believe that the T-shirts were produced by Department of Foreign Affairs and Trade. Correct me if I am wrong. Hence it would be improper to place such a request on notice to this department. CHAIR-Indeed! Thank you, Mr Killesteyn, Mr McMahon and Ms Siegmund for your forthright answers to questions. The committee is adjourned until a date to be fixed. Committee adjourned at 11.01 p.m. CERTAIN MARITIME INCIDENT COMMONWEALTH OF AUSTRALIA Proof Committee Hansard SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Reference: Certain maritime incident TUESDAY, 30 JULY 2002 CANBERRA CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such. BY AUTHORITY OF THE SENATE [PROOF COPY] INTERNET The Proof and Official Hansard transcripts of Senate committee hearings, some House of Representatives committee hearings and some joint com- mittee hearings are available on the Internet. Some House of Representa- tives committees and some joint committees make available only Official Hansard transcripts. The Internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://search.aph.gov.au SENATE SELECT COMMITTEE ON A CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 Members: Senator Cook (Chair), Senator Brandis (Deputy Chair), Senators Bartlett, Collins, Faulkner, Ferguson, Mason and Murphy Senators in attendance: Senators Brandis, Collins, Cook, Faulkner and Mason Terms of reference for the inquiry: For inquiry into and report on: (a) the so-called `children overboard' incident, where an Indonesian vessel was intercepted by HMAS Adelaide within Australian waters reportedly 120 nautical miles off Christmas Island, on or about 6 October 2001; (b) issues directly associated with that incident, including: (i) the role of Commonwealth agencies and personnel in the incident, including the Australian Defence Force, Customs, Coastwatch and the Australian Maritime Safety Authority, (ii) the flow of information about the incident to the Federal Government, both at the time of the incident and subsequently, (iii) Federal Government control of, and use of, information about the incident, including written and oral reports, photographs, videotapes and other images, and (iv) the role of Federal Government departments and agencies in reporting on the incident, including the Navy, the Defence Organisation, the Department of Immigration and Multicultural Affairs, the Department of the Prime Minister and Cabinet, and the Office of National Assessments; and (c) operational procedures observed by the Royal Australian Navy and by relevant Commonwealth agencies to ensure the safety of asylum seekers on vessels entering or attempting to enter Australian waters. (d) in respect of the agreements between the Australian Government and the Governments of Nauru and Papua New Guinea regarding the detention within those countries of persons intercepted while travelling to Australia, publicly known as the `Pacific Solution': (i) the nature of negotiations leading to those agreements, (ii) the nature of the agreements reached, (iii) the operation of those arrangements, and (iv) the current and projected cost of those arrangements. WITNESSES BYRNE, Air Commodore Philip Darcy, Commander, Maritime Patrol Group, Royal Australian Air Force......................................................................................................................................................2154 HALTON, Ms Sarah Jane, Former Chair, People Smuggling Task Force, Department of the Prime Minister and Cabinet.......................................................................................................................2040 Tuesday, 30 July 2002 SENATE-Select CMI 2039 Committee met at 9.39 a.m. CHAIR-I declare open this meeting of the Select Committee on a Certain Maritime Incident. Today the committee continues its public hearings in relation to its inquiry. The terms of reference set by the Senate for the committee are available from the secretariat staff and copies have been placed near the entrance to the room should anyone require a copy. Today's hearing is open to the public. This could change if the committee decides to take any evidence in private. The committee has authorised the broadcasting of public aspects of proceedings. Today's hearing will be suspended for lunch between 12.30 p.m. and 1.30 p.m. I remind members that there will be a private meeting of the committee during the lunch break. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. If at any stage a witness wishes to give part of their evidence in camera, they should make that request to me as chair and the committee will consider the request. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should give consideration to that evidence being given in camera. The committee is obliged to draw to the attention of a person any evidence which, in the committee's view, reflects adversely on that person and to offer that person an opportunity to respond. An officer of a department of the Commonwealth should not be asked to given opinions on matters of policy. However, you may be asked to explain government policy, describe how it differs from alternative policies and provide information on the process by which a particular policy was arrived at. Witnesses will be asked to make an oath or affirmation. Where witnesses are accompanied by counsel, counsel may be seated at the witness table, but counsel may not answer questions on behalf of the witness nor will the committee direct any questions to counsel. CERTAIN MARITIME INCIDENT CMI 2040 SENATE-Select Tuesday, 30 July 2002 [9.41 a.m.] HALTON, Ms Sarah Jane, Former Chair, People Smuggling Task Force, Department of the Prime Minister and Cabinet CHAIR-I welcome the first witness this morning, Ms Jane Halton. Do you have an opening statement before we proceed with questioning? Ms Halton-No. CHAIR-That leads us directly to questions. Senator FAULKNER-I am happy to open the batting, Mr Chairman. Ms Halton, because of some conflicting evidence that the committee has received, the committee thought it would be valuable to ask you to come before it again. I want to start with the task force meeting of the evening of 7 October. Ms Halton-Senator, can I just say at the outset that when I asked the question about what you wished to canvass today, I was informed by the secretariat-this was some time ago-that you wished to canvass material in relation to SIEVX. I draw your attention to the procedures to be observed by Senate committees for the protection of witnesses. It is stated: A witness shall be given reasonable notice ... and a statement of the matters expected to be dealt with during the witness's appearance ... So, whilst I am very happy to attempt to answer your questions, you will appreciate that I have not had sufficient time to revisit all the testimony given by people. If you can assist me by pointing to particular bits of testimony that would be greatly appreciated. Senator FAULKNER-I am more than happy to do that. That would have been my intention anyway. The chairman may be able to assist us here. I am afraid I cannot shed any light on any view that may have been expressed to you that evidence you would be asked to give would relate to the SIEVX issue, but I seek your guidance on that, chair. Ms Halton-Why don't we proceed with the questions, Senator? I suppose I am merely flagging that this was not foreshadowed. You will appreciate that the considerable effluxion of time and the amount of time available to read all of the transcripts-which I have not had-may mean that I am not in a position other than to take some of your questions on notice. CHAIR-On the point that has been raised, I am not aware of what you may have been advised by the secretariat. Doubtless, if that advice has been given, it has been given to you in good faith by them. Ms Halton-I have no doubt, Senator. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2041 CHAIR-The other thing I am bound to say is that you appear here as a witness to this inquiry- Ms Halton-I accept that, Senator. CHAIR-and questions within the terms of our reference are relevant. Any member of this committee is able to proceed without being limited to anything that has been communicated to you in any field relevant to our terms of reference. Ms Halton-Of course. My point is simply that, consistent with the advice about witnesses, I have not had any particular issue other than SIEVX foreshadowed with me, so I ask for Senator Faulkner's forbearance in asking for assistance when he wishes to go to some of those issues to point explicitly to where they are. CHAIR-So if your remarks are about requesting forbearance, I am sure the committee will note that because the committee is keen to obtain the best possible evidence. Ms Halton-Okay. Senator FAULKNER-It never tends to be my practice to flag with witnesses issues I might canvass because inevitably one deals with a range of issues with a witness that comes to the table. I would be surprised if you had not anticipated being questioned on conflicting evidence, given that you appeared before this committee on 16 April 2002. Ms Edwards and Group Captain Walker and others appeared later of course and gave their testimony at a later stage. Ms Halton-Senator, that presupposes that people have read the transcripts, and I have not. Senator FAULKNER-No, but I am happy to indicate to you, as we work through, the basis of any questions that I ask if those go to what I would describe as conflicting evidence before the committee. So I am happy to give that reference to you. Ms Halton-Certainly. That would be useful. Thank you. CHAIR-To add to what I have said earlier, I am sure that any advice offered to you by the secretariat was offered in the spirit of being cooperative in trying to give an indication of the area; it was not offered on the basis of limiting only to that particular area. Senator FAULKNER-Are you aware that before this committee on 22 May 2002 Group Captain Walker said: I returned to the evening IDC- this was the meeting of 7 October- and, when it came to my turn to speak, I pointed out that I had no written confirmation that children had gone into the water ... ... ... CERTAIN MARITIME INCIDENT CMI 2042 SENATE-Select Tuesday, 30 July 2002 basically I was trying to say to her- `her' is you- `Since I can't prove what you're saying, I think you should go back and check from your source that you are happy that the information is correct.' Are you able to confirm with us that Group Captain Walker did indicate that to you at the time? Ms Halton-Not in those terms, Senator. Senator FAULKNER-Could you indicate in what terms he might have canvassed this issue? Ms Halton-I think I said previously that I do not believe Group Captain Walker made a comment of that type. I think there was some discussion about the cables. I think you will recall from my last evidence that I said we had anticipated that Air Vice Marshal Titheridge would be coming to that evening meeting and, as the issue of the paper-I think we have agreed that it was not the original source of advice to ministers in respect of this incident-was to be canvassed and fully covered later on, that issue would not have been dealt with in any detail then. In other words, as you know the paper was dealt with line by line by people at that meeting, including Air Vice Marshal Titheridge, and was edited line by line, including by Air Vice Marshal Titheridge, who, as I think we all agree, was a principal source in the information chain in relation to that claim. Senator FAULKNER-Can I ask you about Ms Edwards's evidence to this committee. I would note here, given our previous discussion, that after your appearance here you and Ms Edwards did have a discussion about conflicting evidence before this committee- Ms Halton-Different memories; that is right. Senator FAULKNER-I think that is true, isn't it? Ms Halton-That is correct. Senator FAULKNER-In fact, I think, according to Ms Edwards, that happened very soon after you gave testimony here. Ms Halton-Some time after. Senator FAULKNER-We might check that at a later stage. Ms Edwards, who was the note taker at that task force meeting, said to this committee on 22 May this year: I believe that in the afternoon discussion he- that is, Walker- mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there had not been. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2043 ... ... ... My recollection is that Group Captain Walker had not been able to provide any updated information on what had occurred, nor had he been able to validate the `children' issue. I think it is fair to say that previously you indicated-and I think you have reinforced this today-that you do not recall Group Captain Walker's statement to the task force. I think that is right, isn't it? Ms Halton-What I recall is a conversation about the cable traffic, and I think I covered in my evidence last time in some detail the slowness of the cable traffic. I do not believe he said, `You should go back to your original source.' I do not believe that that is the case. It is entirely consistent with my memory and, in fact, with Ms Edwards's evidence as you have just read it out, that he had not had any update. That would be consistent with my memory about the discussion about cables and the practice as we had observed it over the preceding five or six weeks. The fact, as I have indicated, is that this was consistent with the experience we had had in relation to cable traffic and that Air Vice Marshal Titheridge, who was our principal interlocutor, was, as you know, attending the evening meeting. My memory is that he attended it some 40 minutes or so after the meeting had commenced. The work of editing that paper was done line by line with Air Vice Marshal Titheridge present. Senator FAULKNER-But are you able to confirm whether that element of what Ms Edwards told this committee-that is, that Group Captain Walker mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there was not-is correct or not? Ms Halton-I cannot confirm the precise wording that you are quoting to me. I can tell you that the essence of that is consistent. My memory-and remember, she was note taking and I was not; I was chairing-is that there was a discussion about cable traffic and there had been no updated cable traffic. Senator FAULKNER-In that circumstance, I suppose one of the issues that arises is why- obviously it did not set off any alarm bells for you-that did not raise at least some concerns in your mind about the issue at the time. Ms Halton-As I have already indicated to you, Senator, and I indicated this last time I appeared, our experience right throughout this period was, firstly, that cable traffic was sometimes days later; secondly, that people like Air Vice Marshal Titheridge were much more senior in Defence, had access to other people who were senior in Defence and they were our source of advice; and, thirdly, the advice that had been received from Air Vice Marshal Titheridge right throughout this period had, in our experience, always been reliable. There was nothing about that incident that suggested that there was a problem with it. Senator FAULKNER-So you would be able to say to the committee now that you believe Ms Edwards's evidence-basically, that Walker had gone back to his office and checked the record to see if there was anything in writing-was not inconsistent. Ms Halton-That is correct. CERTAIN MARITIME INCIDENT CMI 2044 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-But do you have any recollection of it? Ms Halton-I have a recollection of a discussion of cables. I think that is probably the same discussion. You and I would probably agree that, in any memory of particular discussions, people will take away particular parts of that discussion and store them in their memory. The part I have recorded in mine is a discussion in respect of cables. The reason I recall it is that it was congruent with our earlier experience with Defence and their cable process. Senator FAULKNER-I think you previously indicated to us that, as an outcome of all this, the task force paper report that goes to the Prime Minister, which included the phrase `jumping into the sea and passengers throwing their children into the sea', did not contain any caveat at all. That is fair, isn't it? Ms Halton-Yes, that is correct. And, as I think I pointed out to you last time, there were other parts of that paper that were explicitly and deliberately caveated by Defence. Senator FAULKNER-Yes, that is right. Is it fair to say that not only was that sentence or element of the task force report not caveated but it appears as if it has been at the time discredited by the task force representative who says that there is no written evidence he could find- Ms Halton-No. Let us go back. The task force member was Air Vice Marshal Titheridge. Air Vice Marshal Titheridge was the senior Defence person who cleared that paper line by line. Group Captain Walker was sitting in Titheridge's chair temporarily at the beginning of that meeting. He did not stay until the end of that meeting; he left before the close of the meeting. The paper was signed off by Air Vice Marshal Titheridge, who had been through it line by line. Senator FAULKNER-The point I am asking you about, Ms Halton, is that there was a discussion about cable traffic on the question of whether children had been thrown into the water. On that issue Group Captain Walker goes back to his office and checks. In fact, he returned and pointed out that there was no written confirmation. I do not think that is argued by anyone. That is at least what he says, and it is confirmed by Ms Edwards. We accept that it is not caveated in the report that goes to the Prime Minister, excepting the fact that the formal Defence representative is Air Vice Marshal Titheridge-I am aware of that; I understand that- and Group Captain Walker is present representing him for a majority of the proceedings- Ms Halton-Not in the evening meeting, he is not. He is there for the minority of the proceedings. He was only representing Air Vice Marshal Titheridge for a minority of the evening meeting. Senator FAULKNER-No. A majority of the proceedings on that day, it is fair to say, isn't it? Ms Halton-But the issue you are going to is the robustness of the paper and the process by which it was cleared. There should be no doubt that that paper was not authored by Group Captain Walker; it was jointly authored by Air Vice Marshal Titheridge. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2045 Senator FAULKNER-What I am interested in understanding is how that sentence could appear in the task force report without a caveat, given what Group Captain Walker had said earlier. Ms Halton-Because Air Vice Marshal Titheridge considered it appropriate to leave there is the only assumption I can come to. Senator FAULKNER-Do you feel that the task force did not give the Prime Minister accurate advice in its report of 7 October? Ms Halton-As far as we understood the situation at that point that report was accurate. The advice of the senior Defence interlocutor to the task force process was Air Vice Marshal Titheridge. He, as you know, was the source of the advice. We were actually not the original source of advice to the Prime Minister, as you also know, because there was another chain whereby that information travelled. In terms of our understanding of the issues-cleared by the relevant senior Defence person in that process-those were the facts. Senator FAULKNER-Given that Group Captain Walker and Ms Edwards have told this committee that there was no written advice and given that you have indicated strongly the role that Air Vice Marshal Titheridge played in that evening meeting, do you consider it was your or the task force's responsibility, in the circumstances of the advice from the group captain, to ensure that Air Vice Marshal Titheridge checked the basis of that information before it was communicated to the Prime Minister? Ms Halton-It was always the responsibility of each agency to reconcile its own views in bringing them to the task force. At the end of the day, it was for Air Vice Marshal Titheridge to be satisfied that from a defence perspective the advice was correct. He-as you know, because that comment is not caveated-was clearly satisfied. I cannot tell you what process he went through in detail. You have taken evidence from him in terms of his being confident about that advice. That is not something upon which I can comment. But what I can tell you is that someone who is very much more senior in the Defence Force, as you well understand, is the person who was responsible for clearing that paper line by line. Senator FAULKNER-But of course Air Vice Marshal Titheridge was not there at the meeting; he was elsewhere-I think at the races, from memory. Ms Halton-In the morning? Senator FAULKNER-Yes. Ms Halton-I do not know where he was. Senator FAULKNER-I think he told us that. Someone certainly did. It certainly stuck in my memory that Air Vice Marshal Titheridge was not there when Group Captain Walker reported to the task force about checking the information and finding it unsupported. Ms Halton-Are you talking about the morning or the afternoon, Senator? You are not being clear. We know that Air Vice Marshal Titheridge was-you said this and I think we all agree- at the races in the morning. He was not there; however, he was on the telephone. We all agree CERTAIN MARITIME INCIDENT CMI 2046 SENATE-Select Tuesday, 30 July 2002 t the races in the morning. He was not there; however, he was on the telephone. We all agree with that, and we have all got the telephone evidence to prove that that was the case. He not only rang me; he rang a number of other people. You have taken evidence in that respect. We know what he told a number of people. I have my diary note. We have a series of other notes in that regard. In terms of the evening meeting, from memory he missed about the first 40 minutes, when people did some of the housekeeping business, including looking at the first draft. He was there for the line by line discussion of the paper. He was the principal source of communication in relation to this issue. He was the one to whom, as I understand it, advice had been given directly by NORCOM. Senator FAULKNER-Do we know who drafted that element of the task force report in relation to children in the water? Ms Halton-There was a first cut, a chopping block, of the report done in the afternoon. It was dictated, and I dictated it. Senator FAULKNER-So you drafted that? Ms Halton-I would not say that that sentence was exactly the same sentence that ended up in the final report. In fact, I think it was not. But I dictated a first chopping block of the paper to my assistant. Senator FAULKNER-Thank you for that. Are you able to say how the draft changed, as you have described it? Ms Halton-My memory is that it changed virtually line by line. I think nearly every line of that paper was edited in the course of the evening meeting. I have a very vivid memory of my assistant running in and out with the paper as the edits were coming out. There were changes in relation to numbers. There were changes in relation to the caveats that were added. There were changes in relation to the tense. There were changes right throughout the paper. Senator FAULKNER-Sure, but are you able to say how that very important line in the task force report, which is about passengers `jumping into the sea and passengers throwing their children into the sea', changed? Ms Halton-My memory is that those precise words did not change. There was additional information added. I do not have it in front of me, but I think there is something about disabling steering and navigation equipment. Whatever is there was added. Senator FAULKNER-So those words did not change? Ms Halton-Those words, no; that is my memory. Senator FAULKNER-That was drafted before Air Vice Marshal Titheridge's presence? Ms Halton-Yes, and after Air Vice Marshal Titheridge's phone call. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2047 Senator FAULKNER-Given that you have such vivid recall of this, are you able to say when the drafting took place in relation to the information provided by Group Captain Walker? Ms Halton-It was drafted in the afternoon. I have records of when I went in and out of the building. It was dictated from about 2 o'clock onwards in the afternoon. Senator FAULKNER-You talked about the cable traffic. How immediate was this? How contemporary, if you like, was the cable traffic that you were dealing with? Ms Halton-We did not deal with Defence cable traffic, I think, as you understand it. I think we had a conversation the last time I appeared here about the slowness. I think the example I used was in relation to the boarding of the Tampa. You might recall that conversation. Our experience with the cables that were sometimes received in Strategic Command-and I said this last time-was that they were often very slow compared to what was happening on the ground. Senator FAULKNER-What did you have before you at the time? Ms Halton-Nothing. Senator FAULKNER-I might not be recollecting it accurately; I thought `cable traffic' was your terminology. Ms Halton-That was my memory of how Captain Walker described it. Senator FAULKNER-There is no mention, in the cable traffic from HMAS Adelaide, of children being thrown overboard, is there? Ms Halton-I do not know; I did not see it. Senator FAULKNER-You are probably able to say that now, aren't you? Ms Halton-Clearly; but at the time we relied on what we were told by Defence. We relied on the senior people in Defence to confirm things and we relied on their advice. Senator FAULKNER-What I am saying is that it does appear that what Ms Edwards reported Group Captain Walker to have said and what Group Captain Walker has said to us in relation to the cable traffic-which has been much canvassed and examined-is clearly supported by the actual cable traffic. Ms Halton-I am sorry, you will have to repeat that, Senator. I do not understand the point you are making. Senator FAULKNER-The cable traffic does not canvass an issue of children being thrown overboard. It does appear that what Group Captain Walker said in evidence to this committee and what Ms Edwards has indicated to us is supported by an examination, in retrospect, of the cable traffic from HMAS Adelaide. CERTAIN MARITIME INCIDENT CMI 2048 SENATE-Select Tuesday, 30 July 2002 Ms Halton-I have not seen the cable traffic so I would not want to comment on it. I think we all agree the event did not happen. Senator FAULKNER-Do you accept that, in the circumstances of the advice that had been given to the task force by Group Captain Walker, it would have been sensible for someone to have asked Air Vice Marshal Titheridge to check the original source of advice to find out if the verbal advice-that he had in this case received from Brigadier Silverstone-was correct? Ms Halton-I think you are trying to make too much of a leap here, and I understand why you are doing it. I have to say to you that my memory of the report from Group Captain Walker was that he, in his normal way, had been back to the office during the day and reviewed the cable traffic. I do not recall his saying explicitly, `I do not think this happened'-he did not, in my memory. I do not think anybody else has given evidence that he said any such thing. Certainly, when Air Vice Marshal Titheridge turned up, Group Captain Walker and Air Vice Marshal Titheridge had a conversation outside the room. I do not know what the subject of that conversation was. It is a perfectly proper thing to do, when your very much more senior officer turns up, somewhat delayed, at the beginning of a meeting, to give him a brief overview of what has been going on in the meeting. You are trying to make the point, I think, that Group Captain Walker is a fairly careful individual. It is therefore entirely plausible that he went through with Air Vice Marshal Titheridge what he had been up to during the day-I cannot say. But in terms of our relationship with Defence-and remembering that Group Captain Walker then sat in the meeting through the beginning part of the paper being gone through and at no point said, `Excuse me, I think that is wrong,' or `I think that should be caveated,'-I think that is completely consistent with all the evidence. Senator BRANDIS-Ms Halton, in the course of that conversation, had information been conveyed to Group Captain Walker which would have suggested that the report was wrong or ought to have been caveated, you would have expected that the most natural thing in the world would have been for him to have said so at the time. Ms Halton-Correct, and the point I would make to you, Senator, is that this issue was not the issue that we were canvassing. This particular point was a background sentence in a report about other issues. The reality is that it would have been the simplest thing in the world, precisely, to add a caveat, as there was elsewhere in that background section-`we believe' or `we understand' or some other such caveat. It was not added. Each agency was completely free with, in fact, rewriting whole slabs of text if it did not accord with their view. Senator BRANDIS-Of course, the political heat that subsequently attached itself to this issue was not a consideration at the time of this meeting, so that one infers from the silence of Group Captain Walker on the matter that nothing relevant would have been said or he would have been placed in possession of no relevant knowledge in the course of his conversation with Titheridge; would you agree? Ms Halton-I have nothing that would cause me to disagree with that. Senator BRANDIS-And there is not a skerrick of evidence to the contrary, of course, is there? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2049 Ms Halton-No. At the end of the day, this issue was not the issue du jour. It was a minor issue. In retrospect it has become the major issue. It was a very minor issue. CHAIR-Of course, the assertion about political heat is not true either, because there was some political heat being generated at that time in any case, wasn't there? Ms Halton-What time would that be, Senator? CHAIR-At the time you were considering this report. Ms Halton-On that day? CHAIR-Yes. Ms Halton-Not that I was aware of. I think we have already ascertained that I spent my entire day in the office, and, if there was political heat being generated, I was not aware of it. Senator BRANDIS-You have to understand, Ms Halton, that what you as a senior officer of the Public Service may have regarded as material and what Labor Party politicians may have regarded as material may somewhat differ but, for the purposes of this exercise, we are concerned with your perspective at the time. Ms Halton-Thank you. CHAIR-Of course, what Liberal Party politicians, who are beneficiaries of the deception practised on the Australian people, regard as important is another matter again! Senator BRANDIS-Engaging in a bit of point-scoring here, Mr Chairman, are you? CHAIR-If you want to engage in it, Senator, expect it to be returned. Senator FAULKNER-I do not know about that, but I think it is fair to say, Ms Halton, isn't it, that it was hardly a background sentence in Mr Ruddock's announcement? Ms Halton-Again, Senator, I think we canvassed this in glorious detail last time I was here. I think we understand that the information was passed from Mr Farmer to Mr Ruddock. I think you have taken evidence about the fact that-this was consistent with what I said in my witness statement and in my evidence last time-I was actually on the phone when he was talking to Mr Ruddock. I did not hear what was said to him and I did not hear what advice he was given. Senator FAULKNER-The point I am making is that the media had been running hard with the `children overboard' line throughout the day. It was hardly a background issue. I obviously cannot comment on what was in your mind and in the minds of those at the task force meeting when this thing was being drafted, and whether it was background or foreground, but it sure as hell was not a background sentence in Mr Ruddock's announcement. It was the front and centre issue. That is a reasonable point to make. CERTAIN MARITIME INCIDENT CMI 2050 SENATE-Select Tuesday, 30 July 2002 Ms Halton-What I would ask you to do is consider the following. We met that morning at 9. As you know, I was in the office most of the day. I do not know what time Mr Ruddock made a statement, nor do I know what time other people made comment. Certainly when I came into the office and did a first cut of that paper and when the meeting recommenced, the thing I can say here with absolutely categorical assurance is that it was not the principal subject of conversation. If indeed it was already running, as you say, in the media with some level of vigour, that was not something that was discussed by the people in that meeting. I frankly do not think the people in that meeting were conscious of it. If I might make the point, it is one thing in retrospect to get every media clip of what was on radio or what have you, but the simple reality is that if my colleagues were running around Canberra on Saturday doing their business-and I suspect most of them were taking their kids to the football and probably going to the markets to do their shopping-it is entirely conceivable that they did not know that this was being canvassed in detail. Senator BRANDIS-Do you remember any reference during the meeting to the extent of media coverage of- Ms Halton-No, I do not. Senator BRANDIS-When you say that, are you telling us that it was not said or that it may have been said but you do not remember? Ms Halton-I do not think it was said. Senator BRANDIS-Thank you. CHAIR-On that point, the ABC carried a report about the children being thrown overboard before your meeting started at 9 o'clock. I understood that in earlier evidence you said that you were aware of that report. Ms Halton-No, I said I was not completely clear about what time I was informed. Air Vice Marshal Titheridge was my source. I think we have all agreed that the point of when we heard what is a bit confused. If you go back to look at the evidence, a number of people thought that someone else had said it in the meeting first. CHAIR-We can go back and look at the Hansard. I do not have it here, so I am going on a recollection. It can be verified by going to the Hansard. My recollection is- Ms Halton-Maybe now my memory is not as good as it was some months ago. Remember we are discussing this from almost a year ago. But the point that I am making here is that, in terms of the evening meeting, the notion that this was `running hot'-I think that was the description over here; perhaps I have got the words wrong-was not something of which I would say I was conscious and was explicitly not canvassed in that evening meeting. Senator BRANDIS-It was not the business of the meeting, was it? Ms Halton-No, it was not. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2051 Senator BRANDIS-The business of the meeting, unlike the obsessions of Labor Party politicians, was not to consider the media's treatment of an issue; the business of the meeting was to report to assemble information and make accurate decisions. Is that correct? Ms Halton-The business of the meeting was to provide advice about a number of handling options, which had nothing to do with `children overboard' or otherwise. That sentence was included as background information only. It was part of the standard stocktake that was done. As a normal process in the preparation of these papers, there was at the beginning of the papers a stocktake of what was happening. It was part of the stocktake. It was, if you like, the context. It was not relevant to the matter that the paper dealt with other than by way of context. Senator BRANDIS-I assume that the very brief and almost passing mention of the `children overboard' matter reflected the degree of salience-or the lack of it-of that issue at the meeting. Ms Halton-In fact, if I can go further, the reality is that we had all forgotten that particular sentence was even there. When the paper was produced in whichever public forum it was produced in, I have to say that the people who had been associated with it in PM&C had collectively forgotten that sentence even existed. CHAIR-Can I just be clear on one thing about your evidence. It is a fact that the ABC broadcast a news report about `children overboard' before your meeting convened at 9 o'clock. I understood-and it is a question of my memory, but it is ascertainable because it is on the record-that you had indicated to this committee previously that you heard that news broadcast. Did you? Ms Halton-I believe I heard a news broadcast in the middle of the day, possibly once. My memory might be incorrect, and we will go back and look at the Hansard. I entered the office at 8.54, and I do not know what time you are referring to. CHAIR-It was before that hour. Ms Halton-I cannot recall. I would have to go back and examine my memory. CHAIR-You would have to go back and examine your memory? Ms Halton-I will take that on notice. CHAIR-You will take that on notice? Ms Halton-Yes. Senator FAULKNER-So you do not think that the media issue was front and centre for the task force at all? Ms Halton-It is not that I do not think so; I know it was not. CERTAIN MARITIME INCIDENT CMI 2052 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Why did the task force develop media lines? Ms Halton-We have canvassed that terminology at length before. The reality is that facts were provided in relation to particular circumstances. We canvassed last time-I recall this quite vividly-the notion that public servants do not do `spin', which I think was the term that one of the senators used. We provided facts. If you are talking about the discussion on- Senator JACINTA COLLINS-We now know that at least one of them was not a fact. Ms Halton-Yes, in hindsight. If you are referring to the briefing of Minister Ruddock on the 7th, I have just said, and I said last time-and it is consistent with other people's evidence-that I did not hear that discussion. Senator FAULKNER-It seems to me that the senior public servants that were at the task force meeting must have known about the public significance of the issue of passengers throwing their children overboard, and that is why the media handling lines were done up. Any reasonable person, surely, would come to that conclusion. Ms Halton-Actually, Senator, I do not think that anyone in that meeting anticipated what was going to happen with that information. This might sound surprising to your very political ears, but I genuinely do not believe that anybody in that room thought it was a particular political issue. I think that people thought that it was regrettable, but I do not believe that it was thought of as being a political issue. In relation to what Minister Ruddock said-and I think you had this in evidence but, again, this is where I have not read the transcripts-I understand that he was giving a press conference about something else. I understand from my DIMIA colleagues that he was getting a current update so that he understood the facts of particular situations, and he was provided with these by telephone. Senator JACINTA COLLINS-I want to clarify this and make sure that I heard you correctly earlier when you gave evidence with respect to Group Captain Walker's evidence. If my recollection is clear, I think you said, `I do not believe that Group Captain Walker made such a statement in the meeting.' Ms Halton-Yes. Senator JACINTA COLLINS-That is stronger than what you said previously when you said, `I do not recall this statement.' Ms Halton-Yes. Certain people seem to think that `I do not recall' means `I do not remember.' The point I want to make is that we should accept that sometimes `I do not recall that, Senator,' may mean `I do not think that happened, Senator.' Senator JACINTA COLLINS-That is what I am asking. You are now standing by the stronger statement that you do not believe it happened- Ms Halton-I do not think that happened. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2053 Senator JACINTA COLLINS-despite the evidence of Group Captain Walker and despite the evidence of Katrina Edwards? Ms Halton-As I understand Katrina's evidence, it is slightly different to Group Captain Walker's evidence. Senator JACINTA COLLINS-Let us go back to Katrina Edwards' evidence. So you do not need to find it, I will read it. On page 1715 of Hansard on 22 May, she said: I believe that in the afternoon discussion he- that is Walker- mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there had not been. She also said: My recollection is that group Captain Walker had not been able to provide any updated information on what had occurred, nor had he been able to validate the `children' issue. How do you explain to us the conflict between your evidence and that of Katrina Edwards? Ms Halton-My evidence is, in fact, consistent with Katrina's evidence. He said that he had no evidence of it. My memory of it is that he said that he did not have any updated cables, and that is consistent with what Katrina said. Senator JACINTA COLLINS-No. Katrina said: I believe that in the afternoon discussion he mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there had not been. He did not say `updated cables'. He said that there was no confirmation in writing. Ms Halton-There were no updated cables. Senator JACINTA COLLINS-He did not say that. He said, `... whether there was anything in writing, and there had not been.' Ms Halton-My memory of it is that he said that he had not had any updated cables. I do not think that what I am saying is in any sense inconsistent with what Katrina said. Senator JACINTA COLLINS-It is different to what Ms Edwards said. Ms Halton-But I do not think it is inconsistent, and you have just told me it is. Senator JACINTA COLLINS-I do believe it is inconsistent- CERTAIN MARITIME INCIDENT CMI 2054 SENATE-Select Tuesday, 30 July 2002 Ms Halton-That is your opinion; it is not mine. Senator JACINTA COLLINS-because there is a big difference between him saying, `I have not been able to find written confirmation,' which is consistent with what Katrina Edwards said, and you saying, `I believe that he never said such.' There is a big difference. Senator BRANDIS-Ms Halton, I have never heard two honest witnesses give an identical word-for-word version of the same conversation, particularly a year later. Ms Halton-Precisely. I was considering this morning asking Senator Faulkner if he could recall line for line a discussion a year ago in the party room-I suspect he could not. CHAIR-It would depend on how vivid the circumstances were. Ms Halton-This was not vivid. Senator FAULKNER-That is it, Ms Halton! Senator JACINTA COLLINS-I do not think he would accuse another witness of being a liar, which is what you have done. Just to recap- Senator BRANDIS-On a point of order, Mr Chairman-that is an outrageous thing for Senator Collins to say. Senator JACINTA COLLINS-It is not. She said, `I believe he did not.' Ms Halton-I did not. Senator BRANDIS-Ms Halton did not accuse Ms Edwards of being a liar. Senator JACINTA COLLINS-She did. Senator BRANDIS-That is a disgraceful attribution which is extremely offensive and unfair to the witness! Senator JACINTA COLLINS-She did. It is accurate. She said, `I believe he did not.' He has told us he believes he did. Senator BRANDIS-She did not accuse her of being a liar. Ms Halton-That is right. Senator BRANDIS-That is a disgraceful thing to say, Senator Collins! You should be ashamed of yourself! Senator JACINTA COLLINS-No; it is true. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2055 Ms Halton-Senator Collins, I think it is entirely plausible that people have inconsistent memories of particular events. Senator JACINTA COLLINS-That is different to you saying you believe he never said such. Ms Halton-That is my memory and that is what I believe. Senator JACINTA COLLINS-It is not consistent with Katrina Edwards. Ms Halton-In that case, we have inconsistent memories, don't we. Senator JACINTA COLLINS-That is right, you do. Ms Halton-That is right. Correct. Senator JACINTA COLLINS-I am glad you agree. Senator BRANDIS-Just a moment, Ms Halton, just in fairness to you- Senator JACINTA COLLINS-Put words in her mouth now, Senator Brandis. Senator BRANDIS-are you saying- Senator JACINTA COLLINS-Put words in her mouth. Senator Brandis- CHAIR-Order! Senator BRANDIS-because I think you ought to have the opportunity to get your evidence on the transcript here- Senator JACINTA COLLINS-She has had her opportunity. Senator BRANDIS-are you saying that Ms Edwards is a liar? Ms Halton-No, of course I am not. What I said, Senator Collins-so that we can be absolutely clear on the record-is I believe my memory and Ms Edwards's memory are consistent. It is entirely plausible that Group Captain Walker has a different memory. The reality is that I was chairing the meeting and Ms Edwards was taking notes. He may have thought he inflected in a particular way. I did not take away that memory. I believe my memory is consistent with Ms Edwards's memory. Senator JACINTA COLLINS-And Ms Edwards's memory is consistent with Group Captain Walker's. Ms Halton-I would dispute you in that. CERTAIN MARITIME INCIDENT CMI 2056 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Okay, take me to it then. How would you dispute that? Ms Halton-I do not have the transcript in front of me. If you wish to give me the transcript, I will take you through how I think that is the case. In the absence of having the piece of paper in front of me, I think it is an unreasonable question. Senator JACINTA COLLINS-The secretariat will- Senator BRANDIS-Chair, let the witness be shown the transcript. Senator JACINTA COLLINS-Senator Brandis, I am not finished here, please! The secretariat will provide you with the Hansard in a moment and we can go to that. Ms Halton-But I think, Senator- Senator JACINTA COLLINS-I think it is a very critical point. You were saying that Group Captain Walker, in your belief, did not make these comments. To me that does amount to accusing him of being a liar. Ms Halton-I do not believe it does. Senator JACINTA COLLINS-Well, you are just using fancy words to say precisely the same thing. Senator BRANDIS-Are you doing that, Ms Halton? Are you making the accusation that has been attributed to you by Senator Collins? Ms Halton-No. Senator JACINTA COLLINS-But you are saying that you believe he never said such? Ms Halton-I believe we had a conversation about the cables. Senator JACINTA COLLINS-And Katrina Edwards interprets that conversation differently to you. Ms Halton-I would like to see the pieces of paper, but can I make this point, Senator, because you seem to be placing vast store on this issue: we come back to the point that Group Captain Walker's was a report of Air Vice Marshal Titheridge's. Air Vice Marshal Titheridge was the responsible senior officer. He was responsible for Group Captain Walker and everything that happened in Strategic Command. At the end of the day, Air Vice Marshal Titheridge was the member of the People Smuggling Task Force. He was briefed by Group Captain Walker before he cleared out line by line this particular piece of paper. Senator JACINTA COLLINS-We are going off the point here. Ms Halton-No, we are not going off the point. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2057 Senator JACINTA COLLINS-The point is that Ms Edwards has said: I believe that in the afternoon discussion he- Walker- mentioned that he had gone back to his office and checked the record to see whether there was anything in writing, and there had not been. Ms Halton-And that is consistent, in my view, with my memory in relation to a discussion about whether there were any updated cables. Senator JACINTA COLLINS-You were told that there was no written confirmation, according to the evidence of Edwards and Walker, and you are denying that? Ms Halton-No, I am saying to you that there was, to my memory, a conversation about cables and, to my memory, there were no updated cables. My memory is not that he said, `I don't have written confirmation. This did not happen. There should now be a caveat in this piece of paper. I am now going to tell my senior officer.' Senator JACINTA COLLINS-No, no. Now you are going much further than the issue here. Senator BRANDIS-Let her finish her answer, for goodness sake! CHAIR-Order! Ms Halton-At the end of the day, Group Captain Walker is a careful individual-we all agree with that-and I take deep offence at the suggestion that you have made that I am accusing him of something, which I am not. I am attempting to say to you what is my memory of something and, at the end of the day, it is entirely plausible that he has a different memory to mine-so be it-and it is not germane. Senator JACINTA COLLINS-Yes. But what he and Edwards said, according to the evidence before this committee, was that there was no written confirmation. I have taken you to two references to it here, whereas you are saying that you believe that that reference never occurred. Ms Halton-I said to you that I believe he said there were no updated cables. Senator JACINTA COLLINS-That is not the wording used by him and that is not the wording used by Edwards, and yet you cannot explain that inconsistency. Instead, you say you believe he never said such. Ms Halton-I believe there was a conversation about updated cables. Frankly, if he or anyone else in Defence had thought that the absence of some written confirmation was of sufficient weight and moment, they merely had to add a few little words to that sentence. They did not. CERTAIN MARITIME INCIDENT CMI 2058 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Was he present at the time when you went line by line through the document? Ms Halton-Yes, he was present, actually. The introduction to that piece of paper was done at the beginning of the meeting. He was. Senator JACINTA COLLINS-When Titheridge was not present? Ms Halton-No. We did not start- Senator JACINTA COLLINS-You cannot have it both ways, Ms Halton. Senator BRANDIS-Let her finish, for goodness sake! Ms Halton-Excuse me, Senator. What I said to you at the beginning was that the beginning of the meeting comprised housekeeping. Air Vice Marshal Titheridge turned up part way through the housekeeping. We then went through, line by line, that paper. Group Captain Walker left the meeting-from memory, 20 minutes or 25 minutes before the close-after the defence material was complete. Senator FAULKNER-Can I ask you a more general question, just to take you back a step to something you said a little earlier, because I do think this is important. On a very significant number of occasions the last time you came before us, you indicated that there were matters-to use your words-that you could not recollect. I think you would acknowledge that. I think it is important for the committee to understand what you mean when you have provided that answer because, in a sense, you have qualified what you might mean when you have provided that answer, and you qualified that a little earlier. I wondered if you could, for the benefit of the committee, indicate what you mean when you say you cannot recollect. Ms Halton-If I do not remember something, as in I have forgotten something, I will tell you that. If I do not recall it, I do not necessarily have the evidence to say it did or it did not happen. Senator FAULKNER-When you say you cannot recollect, what does that mean? Ms Halton-It depends on the particular context. If I do not recall something, one could form a conclusion that either it did not happen or I do not recollect it. Senator FAULKNER-So it could mean either of those two things? Senator BRANDIS-Or it could mean a third thing, couldn't it, Ms Halton-that is, conceivably it could have happened but you did not happen to hear it being said? Senator FAULKNER-Mr Chairman, now Senator Brandis is answering for Ms Halton. Senator BRANDIS-No, I am not. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2059 Senator FAULKNER-We have not asked Senator Brandis if he ever used the terminology `I could not recollect' what he might mean by that. That is fair enough. Senator Brandis can say what he likes, but I am not asking Senator Brandis because we know what a perfect memory- Senator BRANDIS-I am just trying to be helpful, Senator Faulkner. Senator FAULKNER-I know you are. We know what a perfect memory you have, so you would never utter such words. I was just trying to check with Ms Halton- Ms Halton-Senator, I think we should be clear. In relation to Senator Collins's question on the specifics of what Group Captain Walker claims he says, I do not recall that. I do recall a discussion about cables. I do not think that what I recall is inconsistent with what Ms Edwards recalls. In terms of the specific statement made about written evidence, I do not recall that. As I have said, had there been a concern, had they wished to, it was very easy to insert two or three words of qualification, and that did not happen. Group Captain Walker was there when this paper was edited. As I have said, even though Senator Collins did not actually hear the precise detail, we did housekeeping before Air Vice Marshal Titheridge turned up. Senator FAULKNER-I was not talking about those specific issues, though I appreciate that information. The reason I am asking you this-and it was one of the reasons I thought it was important to ask you to come before us again-is that we asked you questions about a range of issues early in this committee's inquiry. Since we have had the benefit of your evidence before the committee, other witnesses have come before us, as you would appreciate, and provided information about those same matters. I think it is not unreasonable to ask you, in light of some of that evidence, whether other questions arise from it. I think that is sensible and reasonable. When you came before us previously you did use that terminology in response to a range of questions, and that is fair enough. It is very important for us to understand what you meant when you used the terminology, `I cannot recollect.' Ms Halton-I did not say, `I cannot recollect.' I think you will find if you look at the transcript that it is not a term I used. I think I said, `I don't recall that, Senator,' on a number of occasions. Senator FAULKNER-I would beg to differ with you. If you used the terminology, `I don't recall'- Ms Halton-That is what I said. Senator FAULKNER-What-it may mean that you do not remember or it may mean something else? Ms Halton-Yes. Senator FAULKNER-What is the something else? That is what I am trying to check. I am just trying to put your previous evidence in context. Ms Halton-I think it is difficult to come up with a generality. I think you would have to go to the specifics and then perhaps I would be able to answer your question. CERTAIN MARITIME INCIDENT CMI 2060 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-It would take an awfully long time for us, Ms Halton, to go back to all the occasions when you said that. I do not mind doing that, but I want to get a broader understanding, conceptually, which I think you were trying to provide to us a little earlier before there was a subsequent exchange. Ms Halton-As a general rule I would say, `I don't recall,' if I had a belief that something may not have occurred, but I could not say categorically that it did not. Senator FAULKNER-Can I move on to another matter? Ms Halton-With great willingness. Senator FAULKNER-We are probably both happy to do that. Ms Halton-Indeed. Senator FAULKNER-I want to ask you about an issue that arose on the days after what was just canvassed. It goes to the question of why the Department of the Prime Minister and Cabinet sought advice from Strategic Command in relation to the `children overboard' matter. Ms Edwards indicated to this committee that she went to you after receiving DFAT's sit rep 59 on 8 October. I think it is fair to say that you were both able to note that it did not contain information that children had been thrown overboard. I think that is right, isn't it? Ms Halton-That is my memory, yes. Senator FAULKNER-Then there was the issue of what happened next. Is it fair to say that you both decided it was best to make inquiries with Strategic Command about that issue? Ms Halton-No, I do not think that is a reasonable characterisation of my understanding of what happened. I think we canvassed in detail last time the fact that there had been some media reports. I think it was the media reports that actually said we had been shooting at boats which, as I said to you last time, alerted me. I think I said to you last time-and I think this is consistent with what Ms Edwards has said-that we did not have any doubt that this event had occurred. I cannot speak for others, but what I had a concern about was the facts of the situation as they had been reported to us. You will recall the background section of that particular piece of paper-which, as you know, had a caveat and some of the facts were changed and what have you by the other agencies. What alerted me was the notion that we had actually been firing at boats. Senator FAULKNER-Yes, I recall that. Ms Halton-My memory is that that is in the afternoon. Sit rep 59-I think that is the right number, isn't it?-did not throw up any particular doubts. It was the media reporting in relation to shooting at people that got my attention. As I think I have said to you previously, at the IDC of the next day I said to the defence forces that I wanted them to go and clarify the detail of what had happened. At this point, we had not been asked for confirmation. I have noted that Ms Edwards believes that Mr Jordana had asked for the precise details. If he did, I was not aware of that explicitly. The conversation I had with Mr Jordana was a report to him. After I had asked CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2061 the IDC on 9 October to clarify the detail, I rang him and told him that that is what I had asked them to do. I think Ms Edwards has given evidence that she believes she had a request from him. I was not party to that if that was the case. In any event, we are not doing anything that is inconsistent with each other. Senator FAULKNER-Let us go to the sit rep. I am aware of the evidence you gave in relation to the firing. I do understand that background. But what Ms Edwards told us, after you gave evidence here, is: ... I am confident we started our inquiries on 8 October, following receipt of DFAT sit rep No. 59. 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. It is that element I want to ask you about: `Ms Halton and I agreed in the circumstances we should follow up to obtain further details of the incident'. That is what Ms Edwards told us. Ms Halton-And that is not consistent with my memory. My memory is that we had a conversation. Sit rep 59 was around. The trigger point for me was the media reporting. It may well have been that the trigger point for her was sit rep 59. In any event, we agreed we should get the detail. Senator FAULKNER-Do you remember seeing DFAT sit rep 59? Ms Halton-On that day, no. Senator FAULKNER-Do you know when you would have seen it? Ms Halton-I think actually probably some considerable time later. Let me just check. I have a record of all the papers that came in and out of my office, as you probably appreciate. Senator FAULKNER-There is no record of the chronology. Ms Halton-No, there is not. Again, this is recorded elsewhere. I think I had a whinge about not getting adequate and timely information from Defence and so I got my first Operation Relex update on 11 October. Senator FAULKNER-This is very important, because obviously Ms Edwards tells us that sit rep 59, not mentioning kids being thrown overboard, causes her concern. You know that from the evidence that she has given. Ms Halton-Absolutely. Senator FAULKNER-Can you explain to the committee why Ms Edwards says she shows this sit rep to you on 8 October? Ms Halton-Did she say that she showed it to me? CERTAIN MARITIME INCIDENT CMI 2062 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-She says: ... Ms Halton and I agreed that, in the circumstances, we should follow up to obtain further details of the incident. Ms Halton-With respect, Senator, that is not saying that she showed it to me. Senator FAULKNER-All right; let me be absolutely precise about it. Can you explain why she said: ... Ms Halton and I agreed that, in the circumstances- and the circumstances are the receipt of DFAT sit rep 59- Ms Halton-No, I think you are reading what suits you into those words. She is saying that, in the absence of detail, she was concerned to get more detail. Again, I think our memories are quite consistent here; it is just that they come from a different starting place. My starting place was media reporting in terms of shooting. Her starting place was in terms of a sit rep she had seen. We have a conversation, which clearly we both recall, which is in terms of the need to get detail. Senator FAULKNER-So you do not believe Ms Edwards's statement-I do not want to read it again, because I have read what she said on the Hansard record-relates to sit rep 59? Ms Halton-I am sure it does relate to sit rep 59, but the point here is a discussion about detail. Clearly we had a discussion about detail. She agrees with it. I agree with it. Her reason for thinking there was a need for detail, she is saying to you, is sit rep 59. My reason for saying to you that I wanted some detail was in relation to us firing at small boats. There is nothing inconsistent with that. Senator FAULKNER-There is, because I asked you the question on 16 April: Would you know why the DFAT sit reps, including DFAT sit rep 59, did not prompt further questioning about the veracity of the `children overboard' claims? Your answer was: In a word, no. That is what you said. Yet effectively, and I think quite clearly, Ms Edwards is saying to us that the circumstances were that this matter should be followed up. Ms Halton-You would have to ask Ms Edwards about that. Senator FAULKNER-I have. Now I am asking you. There is a clear difference here, and I am wondering if you can shed any light on it. It is one of the reasons for asking you to come back-just to see if we can clarify some of these things. Ms Halton-Okay. As I am explaining to you, Senator, I have a memory of that conversation which was not about a DFAT sit rep. My memory of the conversation was in relation to media CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2063 reporting about shots at vessels. I recall having a conversation with her where I said, `They're saying that we have shot at vessels. This sounds to me unsavoury, and I think we should ascertain the precise facts.' She agreed and said, `We'll go away and look at it.' I do not believe the fact that she has a different reference point in her mind is inconsistent. Senator FAULKNER-Ms Edwards also told us when she appeared before this committee that PM&C held a series of conversations with Strategic Command on 8, 9 and 10 October. Ms Halton-I was not aware of ones on the 8th. I was aware that they were having conversations on the 9th and the 10th. Senator FAULKNER-You are aware of the 9th and the 10th? Ms Halton-After we had had our conversation, we agreed she would go away and have a conversation with Strategic Command. Senator FAULKNER-She also said to us: Strategic Command had been telling us a very similar message for the previous couple of days, which was that they had no evidence within their holdings ... That is about the `children overboard'. Does that conform with your understanding? Ms Halton-She did not report that to me. Senator FAULKNER-It is not just the question of the chronology, is it? There is a series of phone calls during the period of 8, 9 and 10 October in which it was evident that, within Prime Minister and Cabinet, Strategic Command had found no evidence whatsoever that children had been thrown in the water. Ms Halton-I understand the point that you are trying to make here, and I think it is not right. Senator FAULKNER-No, I am not- Ms Halton-Yes, you are trying to make the point- Senator FAULKNER-Ms Halton, I want to interrupt you here to say I am not trying to make any point; I am trying to clarify conflicting evidence, and all I am doing is asking you questions. I am trying to be very careful about that. Ms Halton-Excellent. Allow me to assist you in answering your question. CHAIR-An extraordinary outbreak of mutual cooperation! Ms Halton-Excellent. It is to be encouraged, Senator Cook. In terms of the understanding of Ms Edwards and I-as I understood it at the time, and I still understand this to be the case- we did not believe that that particular event was not a fact. As I think we have all been at some CERTAIN MARITIME INCIDENT CMI 2064 SENATE-Select Tuesday, 30 July 2002 pains to point out to you over a period of time, Strategic Command was explicitly outside the line of command and was, in our experience, often behind the play on what was happening. That said, had they had any concern about the facts of this matter at the point at which the photo was proven to be something different-there are a whole series of points we can put to here, Senator-had they had any explicit concerns, they could have, should have but did not raise those with us. And in terms of conversations that may have occurred amongst junior officers in the Social Policy Division, it is not my belief that those junior officers were in fact alarmed or concerned as to the veracity of this story. It is my belief that there was a considerable level of frustration, that the details seemed to move around and that they were attempting, as I think you understand well, to nail down the precise detail, the facts-the numbers et cetera- and that was the process that they were following. Following Ms Edwards's and my conversation-from my perspective, the shots issue; clearly from her perspective, sit rep 59-the outcome was the same. Those junior officers were tasked to have those conversations. In terms of there being a blow-by-blow, running description of those discussions, there was not one. However, had there been a particular concern that there was emerging doubt, that there was uncertainty, that there was in any sense a level of concern, I am absolutely confident that would have been brought to my attention. It was not. As I understand what Ms Edwards has said to you, she did not doubt that this had occurred. There was some frustration with dealing with a body that was out of the line of command in terms of nailing down the facts, which is what people were attempting to do. Senator FAULKNER-I cannot talk about Ms Edwards's motivation. All I know about is the answers that she has given this committee. What she says to us is that there were vigorous inquiries going on between PM&C and Strategic Command on 8, 9 and 10 October about these very issues. But I think what you are saying to us is that you are not aware of it. Ms Halton-What I am saying to you is that I am aware that they were tasked to do this. I did not physically sit in the Social Policy Division, so I cannot say that I saw people running around doing vigorous things. However, the notion that Social Policy Division were attempting to clarify, for example, numbers, time, time in the water-yes, that is consistent with my understanding. Senator FAULKNER-And you do not know when you saw sit rep 59? Ms Halton-I do not believe I saw sit rep 59 until some considerable time later. My memory is that that is one of the things that Mr Jordana asked Ms Bryant for in early November, and my memory is that I saw it then. Senator FAULKNER-When I asked you previously who the DFAT sit reps normally go to in the department, you made it quite clear to me-when you were before this committee before-that you normally got one. Ms Halton-I did normally get them, but I have made the point to you there was some confusion about where things were going. In fact, I think I made the point, and it is reflected in the minutes, about making sure that everyone was copied-in on things, and that is reflected in the documents that I was receiving by the middle of that week. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2065 Senator FAULKNER-Ms Edwards also tells us, as you mentioned a littler earlier, that Mr Jordana called the division on 8 October, I think asking for further details about the events of 7 October. Ms Halton-Again, I was not privy to that conversation. I am not aware of it. I am aware that I had a conversation with him where, it is my belief, I told him that I had said at the IDC of the 9th that I wanted them-this is reinforcement of the conversation that Ms Edwards and I had already had-to clarify the details. Senator FAULKNER-But when did you become aware of Mr Jordana's call? Ms Halton-Which call? Sorry, Senator. Senator FAULKNER-Ms Edwards has told us that Mr Jordana called the division-the Social Policy Division, I assume-on 8 October asking for details about the events of 7 October. Ms Halton-When I read it on a piece of paper last night. Senator FAULKNER-Because Ms Edwards thought this call came to either herself or yourself or possibly both of you. Ms Halton-No. I called him after the IDC and told him that I had asked Defence to go away and check. I did not receive a phone call from him asking for details on the 8th. Senator FAULKNER-In an answer to a question on notice, Ms Edwards said: As I indicated, I believe Mr Jordana rang either Ms Halton or myself or both on either October 8 or 9 seeking further details around the events of 7 October. As I have stated, we indicated that we were pursuing the matter. Can you confirm whether that statement in that answer to a question on notice is, from your perspective, accurate or not? Ms Halton-He did not ring me and I am not aware of him having rung Ms Edwards. Senator FAULKNER-She goes on to say: The request for a chronology of events was part of this follow-up effort. Are you able to confirm whether that is the case or not? Ms Halton-No, I cannot. Senator FAULKNER-You just do not know? Ms Halton-No, I did not receive a phone call from Mr Jordana asking me to provide details of this matter. My conversation with Mr Jordana about this matter was me ringing him in relation to the request I had made at the IDC. CERTAIN MARITIME INCIDENT CMI 2066 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Can you confirm the further detail that was given in this answer to the question on notice by Ms Edwards? It reads: ... the lack of detail and equivocal comments in the chronology were somewhat unsatisfactory, although we did provide talking points derived from the chronology to Mr Jordana that evening. Are you able to shed any light on that? Ms Halton-Which evening is that? Senator FAULKNER-I assume it is the 9th, but that is an assumption on my part because it is not clear in her answer. Ms Halton-We provided talking points on the 9th, I think, which were the facts as we knew them. But we certainly did o on the 10th. I make a point: it would not be unusual for Mr Jordana to have made a request directly of the line division and it would not necessarily be unusual that I would not know all the details. Senator FAULKNER-Yes, but this is a prepared answer to a question on notice from Ms Edwards. Ms Halton-Okay. Senator FAULKNER-She then says: I assumed at the time, however, that Ms Halton would also advise Mr Jordana of the difficulties around the chronology, as well as the `footnote', as well as the subsequent advice from Mr Reith and his office of that afternoon. Is that right? Did you do it? Ms Halton-That is her assumption. We have already had a lengthy conversation about my understanding of the chronology and I have no doubt you want to ask me some more about that; maybe we should deal with that question at the time. As I have said to you previously, I did not receive the chronology and, again, Ms Edwards and I have different but not inconsistent recollections in relation to the chronology. I did not see the chronology; I did not receive it. In terms of inconsistencies, as I think I have said to you previously, my memory is of Ms Edwards telling me that we were having difficulty pinning down the precise detail of the facts-that is not inconsistent. In terms of advising people of that, Ms Edwards was principally responsible for trying to nail down those facts. In terms of advice to people about that issue, no, I was not providing advice to people about that issue. I was not undertaking that work. Senator FAULKNER-I think the assumption here from Ms Edwards is that you should have done it. She writes: I assumed at the time, however, that Ms Halton would also advise Mr Jordana of the difficulties around the chronology, as well as the `footnote' ... My assumption is that Ms Edwards is saying she felt that you should have done it. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2067 Ms Halton-I do not know why she would have thought that I had done it. To my certain knowledge there were about five minutes between when I walked into the building, when we agreed we had a conversation about the difficulty of the facts, a series of phone calls and chairing a meeting. Quite when I was meant to have done this, I do not know. It was not the subject of detailed conversation. Senator FAULKNER-But you did not read these questions on notice until last night. Ms Halton-That is right. Senator FAULKNER-You told us before that you did not prepare anything for SIEV4; that you were only dealing with SIEVX. Ms Halton-No, what I said to you was that in terms of any details of inconsistencies you would have to show a little forbearance if you went to the transcripts, because I have not read the transcripts. I was handed a folder last night at about a quarter to 8 which included that particular document and I did read that document. Senator FAULKNER-Who handed you that folder, Ms Halton? Ms Halton-An officer from the Department of the Prime Minister and Cabinet. Senator FAULKNER-Who was that officer? Ms Halton-My colleague sitting behind me. Senator FAULKNER-I am asking what the name of the officer is. What did that folder contain? Ms Halton-It contains a series of answers to questions on notice, a letter from Dr Hawke to the committee, some news reports, some transcripts and some material that, clearly, Prime Minister and Cabinet thought I would not have seen-and they were quite correct: I had not. Senator FAULKNER-Did you request that folder or did they just give it to you? Ms Halton-The details of this folder, I did not request. Senator FAULKNER-The details of it? Ms Halton-No, I did not request a folder. Senator FAULKNER-So you were not aware that you were going to receive such a folder? Ms Halton-No, but I was very grateful to receive it. Senator FAULKNER-But you did not know you were getting it. CERTAIN MARITIME INCIDENT CMI 2068 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No, I did not. Senator FAULKNER-It was a bit late to get it at 8 o'clock last night anyway, I would imagine. Did you have a chance to read it? Ms Halton-Not all of it. Senator FAULKNER-But some of it. Ms Halton-Some of it. Senator FAULKNER-So obviously there was at least a suggestion from some in Prime Minister and Cabinet that a member of the committee might ask you about such matters, even if you were not expecting it. Ms Halton-You could read that into it, Senator. Senator FAULKNER-Yes, I could, and you brought the folder along. Ms Halton-I did. Senator FAULKNER-That was most prescient on your part. Ms Halton-It was. Proceedings suspended from 11.01 a.m. to 11.21 a.m. CHAIR-Order! The committee will resume. Senator FAULKNER-Ms Halton, I will very briefly recap where we were at a little earlier in relation to the meeting of 7 October, in the evening. A view has been expressed by Group Captain Walker which, as you are aware, we have canvassed before the committee. Both you and Ms Edwards have given evidence about this particular matter. To encapsulate, in a nutshell, you made the point that Group Captain Walker was at the meeting on the evening of 7 October for only a comparatively short period of time. Ms Halton-No, that is not the point I made. I said to you that he was not there for all of the meeting. He was there at the start of the meeting, and he left some 20 or 25 minutes before the end of the meeting when the Defence material was finished. He was there for the majority of the meeting. Senator FAULKNER-Were you making the point that he had cited the draft report to the Prime Minister? Ms Halton-Yes, that is right. Senator FAULKNER-How would you describe his response to it? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2069 Ms Halton-The first part of the meeting was housekeeping. The conversation that we have just had with Senator Collins was about the three different versions of what is clearly the same conversation that occurred in the housekeeping part of the discussion when Air Vice Marshal Titheridge arrived at the meeting. From my memory, we had either just commenced or not commenced working through that paper. Group Captain Walker went outside the room with him-my understanding was that it was to give him an update, a quick canter through or whatever; no-one was there other than them-and then we proceeded. My memory is that we had not started the paper when Air Vice Marshal Titheridge arrived. Maybe that is not right- maybe we had it on the table and we were just about to start-but it is of that order. As I think we have canvassed extensively, we then went through the paper line by line. Senator FAULKNER-Would Air Vice Marshal Titheridge have had a copy of the draft? Ms Halton-There were copies for everyone in the room. Senator FAULKNER-In other words, Air Vice Marshal Titheridge would have had a copy of the draft? Ms Halton-Absolutely. There were sufficient copies for every single person in that room. We provided a copy for everyone. We numbered them because they were sensitive issues. We then took them back when everyone had finished the editing process. One of my officers wrote down the edits from around the table. I think I have indicated to you that, in some cases, departments rewrote whole slabs of text-they did not agree with the option, we discussed it and what have you. This was a combined effort of all of the departments. There was no single author, as we have canvassed previously. Those edits were handed to my assistant, who had the document up on the word processing system. As I think we discussed, the chopping block was something I had dictated earlier in the day. She then made those edits. That occurred progressively through the meeting. The document ultimately came back for one last read. 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. And, as I think I said to you when I last appeared, that was something we had confirmed on the security tapes that Prime Minister and Cabinet held. Senator FAULKNER-But you are satisfied that Air Vice Marshal Titheridge-the relevant Defence officer at this point-did not demur from the content of the final document? Ms Halton-There was no point at which that final document-and, indeed, any final document that we put through-was disputed. The essence of this whole operation was to have agreement amongst the agencies about the text and about the advice. I think we have canvassed previously that it was not an occasion when we inserted ourselves in the line of command with agencies or in Operation Relex or whatever else and, where there was combined advice required on something, that was always discussed and the material was always agreed. Senator FAULKNER-And you are satisfied that Air Vice Marshal Titheridge was aware of the content of the final document? CERTAIN MARITIME INCIDENT CMI 2070 SENATE-Select Tuesday, 30 July 2002 Ms Halton-Absolutely. Categorically. Senator FAULKNER-How do you explain Air Vice Marshal Titheridge's answer to question on notice No. 49? The question stated: On the evening of 7 October the People Smuggling Task Force developed a paper for the Prime Minister to provide an update and options for handling SIEV4. How closely involved were you in developing that options paper? This is Air Vice Marshal Titheridge's response: I believe the reference to the report in the question should have been the one on unauthorised boat arrivals, not on SIEV4. I think that is a fair qualification, isn't it? It was not only dealing with SIEV4. Ms Halton-It was not dealing with SIEV4, no. Senator FAULKNER-Then Air Vice Marshal Titheridge goes on: 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. Ms Halton-That is not correct. Senator FAULKNER-Are you saying that Air Vice Marshal Titheridge is responding untruthfully to a question on notice? Ms Halton-No, and let us not revisit the interchange with Senator Collins earlier. Senator FAULKNER-I do not want to revisit it either, Ms Halton. Ms Halton-There were a number of occasions on which papers were prepared. Air Vice Marshal Titheridge has not had the benefit, as I have, of being able to scrutinise the security logs of Prime Minister and Cabinet of when people came and went or of the IT records of when documents were edited and when they were sent. I can assure you that Air Vice Marshal Titheridge was in the building. My handwritten notes, which I prepared for when I came last time, were that-and the chronology goes-the meeting convened at about 5.30 in the afternoon. You had taken evidence from Mr Doyle that he did not recall the paper. Again, that is not consistent with the factual- Senator FAULKNER-Yes, but- Ms Halton-Let me go through my chronology, because I think that it is relevant. Senator FAULKNER-I think we have to be reasonable about this, because we do not have a huge amount of time. I am trying to focus on the clear conflict in evidence between you and Air Vice Marshal Titheridge. Ms Halton-And I am saying to you that I have got a complete list of who came and went from the building and when. I have a list of when the document was edited and when it was sent CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2071 out of the building. The document did not change after people had left the building. People left the building at 19.52, including Air Vice Marshal Titheridge. The paper was completed and was edited. It is true that nobody was given a copy of the document to take away-that was standard practice. These materials were considered sensitive, and agencies were not given copies of the document. But the 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. Senator FAULKNER-So you accept there is quite a serious conflict of evidence between what Air Vice Marshal Titheridge tells this committee and what you say, not to mention the conflict between what Ms Edwards says and what you say, not to mention the conflict between what Group Captain Walker says and what you say. But let us just concentrate on the air vice marshal. Do you accept there is a clear conflict of evidence between you and Air Vice Marshal Titheridge on this very important point? Ms Halton-As you have read that evidence, yes, there is. I am saying to you that, based on the documentary evidence and the memories of people from Prime Minister and Cabinet, according to our records, he was in the building and, according to our memories, he was in that room. According to my memory and the memories of my assistant and a number of other people, that document was physically on the table with copies for everyone in that room. It was edited line by line, consistent with what I told you last time, and it is consistent with the security camera evidence that everyone left the building at the same time after that document had been finished. Senator FAULKNER-You now sound a little more prepared perhaps than you suggested a little earlier, when you thought that our questions might go to SIEVX. I am very impressed that you are armed with security and IT records, as you suggested to the committee that you were unprepared to answer questions about these matters. Ms Halton-You are trying to impugn something there. Senator FAULKNER-No. I am merely saying how impressed I am. Senator BRANDIS-Senator Faulkner is just jealous because you are so much smarter than he is. Senator FAULKNER-Absolutely. Ms Halton-I would not be so bold. I brought with me the material I had prepared for our last discussion, which includes my handwritten chronology of exactly what happened and when over the periods of days which went to this issue. So I am reading from my handwritten chronology. Senator FAULKNER-Whatever the IT records show or whatever the security camera tapes show, Air Vice Marshal Titheridge says that he did not see or approve the document. That is the key point. CERTAIN MARITIME INCIDENT CMI 2072 SENATE-Select Tuesday, 30 July 2002 Ms Halton-You would have to ask him about that, not me. Senator FAULKNER-I have. We have asked him a question on notice and categorically he has responded the way I have said. He 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. That is categorically different from what you have told us. Who are we to believe? Ms Halton-Senator, if necessary, I presume you could look at the security camera footage yourself. Senator FAULKNER-No. That does not tell me about this document. Ms Halton-The document was edited by the entire group, and all of the evidence that we have is consistent with that. Senator FAULKNER-Who are we to believe-you or the air vice marshal? Ms Halton-I have to say that I would have thought my answer on that would be self- evident. Senator FAULKNER-Who are we to believe-you or Ms Edwards? Ms Halton-To my mind the conversation we have had about Ms Edwards in terms of our memories of particular things shows they are not inconsistent. You have not yet shown me the particular text to which you refer, and I would not want to make any more comment. But, in terms of what you have said to me, I do not believe that our memory is inconsistent or what we have said is inconsistent. You assert that it is. Clearly, in this particular case, you are right. There is an inconsistency. My view, backed up by the documentary evidence held in Prime Minister and Cabinet and the memories of the officers of Prime Minister and Cabinet, is that without doubt this document was edited line by line and that Air Vice Marshal Titheridge was at the table when this happened. Senator FAULKNER-Who are we to believe-you or Group Captain Walker? Ms Halton-Group Captain Walker has made a particular comment. Whether or not that is accurate, I have told you my memory of what happened on that particular day. You can choose to assess that in whatever way you wish. However, it does not go to the facts to which I am now pointing you as to how this document was edited and who cleared it. Senator FAULKNER-After your appearance at the committee on the previous occasion you were here, I think you had a discussion with Ms Edwards about your evidence. Ms Halton-I think we had a couple of conversations, one of which may have gone to that. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2073 Senator FAULKNER-Can you explain to the committee what you did discuss with Ms Edwards about your evidence before the committee? Ms Halton-I am aware from last night's reading that there is a statement in relation to that issue in her answers to questions on notice. I think we discussed our different memories of the afternoon of the 10th, which went to the issue of who told us at what point where particular information came from and the handling, as you are aware, of the chronology. I have told you, and I told you this last time, that, in terms of the chronology, I am absolutely certain that Katrina walked into my office part way through a phone call I had received from former Minister Reith. I should say that her memory here is incorrect, because she said to you that I was in Melbourne. I was not; I was in Sydney. So her memory is clearly fallible as well, Senator. As you know, I walked back into the office at a quarter to five, according to the evidence I have from a Cabcharge receipt; that is consistent with the security information. As I walked in, I received a phone call from Minister Reith. I was not in the habit of receiving phone calls from Minister Reith. My memory is that he wanted to quiz me about when we could unload the Adelaide. From memory, the Adelaide was sitting off Christmas Island with people on board and he was keen to have his ship back-I am never sure whether you should say ship or boat; I always get that wrong. Halfway through that conversation, Ms Edwards walked in. I can remember her walking in and standing at the top left-hand corner of my desk with a bundle of papers in her arms. In the course of the conversation-which I recall was testy, because he wanted those people off that boat/ship and I was unable to give him any immediate comfort as to where they were going to be accommodated-he passed on to me, and I said this to you last time, that there was a video and that he had just told the media that there was a video of this incident. I think, as I have said to you, this was something to which I reacted. I was not aware of it; in fact, I was quite surprised by it. Ms Edwards and I then had a brief conversation in which I said to her, `He's just told me there's a video; do you know anything about that?' To which she said, `No.' I think this is very similar to the conversation we just had about the reference point she had for a conversation and the reference point I have for a conversation. So, as to your question about sit rep 59 and my recollection of it being about shots at boats, we both agree there was a conversation. The starting points we both had for those conversations were different. That is probably not surprising, given that we were doing different things. In this particular case I had just had a discussion with Minister Reith in which he told me something about which I was not aware. I think it is very likely-because it was either in this conversation or in the next conversation that I was also told that there were photos, but I cannot be completely categorical because it was the video bit that really stuck in my mind-she came into my office part way through this conversation and said to me that they were having trouble pinning down the detail. I said about the video, `Do you know anything about that?' She said, `No.' I then made a series of calls-I gave this in evidence last time-to Hendy and to Titheridge. Remembering that this was at 16.45, the meeting convened at 5 o'clock, and I should say here that the minutes are wrong. The minutes say that the meeting convened at six. Again, I have gone back to the security cameras, and my notes are that the meeting convened at five. We have checked that with the security cameras: when people came in, the meeting did convene at five. It is absolutely the case that Ms Edwards said to me in that conversation that there was some confusion about the detail. She CERTAIN MARITIME INCIDENT CMI 2074 SENATE-Select Tuesday, 30 July 2002 said to you that she read me the footnote and she gave me the chronology. As I have said to you, I had not seen that chronology, and I did not see it until it was shown to me by Matt Healey as part of the investigation. In fact, I was very surprised when I saw it. Was I given a copy? Again, I have gone back through my records. If I have a piece of paper in my office, it goes out and it is marked out of my office. I have a complete record of every piece of paper coming in and going out. That has always been my practice, and it is my practice now in my new position. There is no record of it coming in-and in this case it might not have, because she said she handed it to me-but, more importantly, it did not go out. However, the reason I did not make an issue of this when I made my opening statement last time is that the essence of what she said, that they were having a bit of trouble pinning down the detail, is not inconsistent with my memory. We both agree that we discovered the existence of the video, the photos and the witness statements in this series of phone calls. We both agree that there was a 15-minute period between when I walked in and when we went to this meeting and that, of that 15 minutes, a good eight or nine minutes were spent on the telephone. We both agree that we ascertained the facts as best we knew them-and we canvassed this a little bit earlier when you asked about the talking points-that we documented them as best we could, that we tabled them in that evening meeting and that they were not demurred from by the agencies there, including Defence. I understand the point you are trying to make about the footnotes and about doubt but, as far as I am concerned-and my understanding is that this is consistent with her evidence-she did not have a doubt and I did not have a doubt: we had not been led to believe that there was a doubt. Yes, we have an inconsistent memory. We are both very aware that that is something that will sit as an inconsistency in our evidence. The point was just made to me by someone during the tea-break that, if we all had completely consistent memories of every single thing that happened here, you would rightly think we had all sat and discussed exactly what it was that happened at the particular time. That is not the case. We have memories. I think it is completely understandable where mine started and where hers started and what was common about those memories. Senator FAULKNER-Thank you. I was asking about the discussions with Ms Edwards about differing recollections. Ms Edwards in an answer to a question on notice said that you and she had had a discussion at the Department of the Prime Minister and Cabinet in December last year while Ms Bryant was preparing her report. Do you recall that discussion with Ms Edwards? Ms Halton-Can you tell me which question number that is? Senator FAULKNER-It is Ms Edwards's answer to question on notice No. 24. I can read it to you if you would like. Ms Halton-No, I have it in front of me by dint of my folder from last night. Which paragraph are you reading from, Senator? Senator FAULKNER-The first one; it says in part: Ms Halton and I initially discussed our differing recollections ... in December 2001 ... CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2075 Ms Halton-That is right. That was about who first told us about the photos and the principal point of a couple of those phone calls. Her memory had been about the photos; my memory had been about the video. I have not read it for a very long time-since I last came to this committee-but my memory is that she had remembered the phone calls as being about photos, whereas I am absolutely certain that the photos were a by-product of those phone calls. The phone calls were not about the photos; the phone calls were to ascertain whether there was a video-because Minister Reith had just said to me that he had just told the press that there was a video. Senator FAULKNER-Was your discussion at that time about the content of the Bryant report? Ms Halton-No. Senator FAULKNER-Did you initiate the discussion with Ms Edwards? Ms Halton-I do not believe so. We both gave witness statements independently. I was in Sydney when I gave mine; I do not know where she was when she gave hers. I think after those witness statements had been completed, somebody-and I cannot tell you who it was-drew to our attention that we had different recollections of this and at some point we canvassed that in passing. Senator FAULKNER-But you had a number of meetings and phone calls with Ms Edwards about differing recollections. That is true, isn't it? There was the one in December and then there were a range of others. Ms Halton-I would not say `range'. There were probably two or three where, in the course of other discussions, the fact that we had a different memory of things-and, again, I do not think that is surprising-would have come up. Senator FAULKNER-But you did ring Ms Edwards on Saturday, 16 February this year in relation to media reports in the Sydney Morning Herald. That was your initiative, wasn't it? Ms Halton-I think that was a conversation about trying to work out where something had come from. Senator FAULKNER-Could you tell me what the background to that particular conversation was? You take the initiative there. Ms Halton-I think my question to her was, `Do you know what it was a reference to?' There are a number of things that have appeared in the press, and I have not been reading all of them; in fact, I actively stopped reading them. Senator FAULKNER-But you would not ordinarily ring a senior officer in the Department of the Prime Minister and Cabinet on a Saturday morning about something in the press, would you? CERTAIN MARITIME INCIDENT CMI 2076 SENATE-Select Tuesday, 30 July 2002 Ms Halton-When you work with people very closely, often you ring them and chat about things. I have no doubt you have occasion sometimes to ring your Senate colleagues over the weekend. Senator FAULKNER-Yes, I do-but it is not normally about conflicting evidence at Senate committees. Ms Halton-This was not about conflicting evidence. Can you tell me which paragraph you are referring to? Senator FAULKNER-It is in the second paragraph of the same question. Ms Halton-Of 24? Senator FAULKNER-Yes. Mr Allard of the Sydney Morning Herald wrote: Government sources say one of the key players in the affair, Jane Halton, the former executive co-ordinator in the Department of Prime Minister and Cabinet, will tell the Senate inquiry she never saw the chronology. Sources say the document was received only by a junior officer in the department whose senior officer was first assistant secretary Katrina Edwards. It is understood Ms Halton will claim the chronology-received at noon on October 10, the same day the former minister for defence Peter Reith released photos of children in the water to back up the false assertions-was later ignored as her staff undertook other tasks. According to Ms Edwards, it was on that day that you rang her about that article. Ms Halton-I remember the piece and I remember ringing her and saying, `Have you seen this? Do you know where it has come from?' Senator FAULKNER-Were you able to shed any light on it? Ms Halton-No, I think both of us agreed that we did not know. Senator FAULKNER-Then, of course, you also rang on 18 February. Ms Halton-On 18 February? Senator FAULKNER-According to Ms Edwards, that is the case. She says: On the following Monday, February 18, Ms Halton rang to advise me that she had learnt that she had been in Melbourne in meetings that day until late afternoon, and had been uncontactable, and felt that this explained the discrepancy in timing. That is a point that you made a little earlier. Ms Halton-That may well be the case; I do not have any particular recollection of it. Senator FAULKNER-Ms Edwards goes on to say: CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2077 I have spoken to Ms Halton socially on a few occasions over the last few months, and may have peripherally canvassed some of these issues, although certainly not in any depth. Ms Halton-And that is quite consistent with what I just told you. Senator FAULKNER-Then she goes on to say: We also met at PM&C one Sunday afternoon to access records in preparation for these hearings. Do you know which Sunday afternoon that was? Ms Halton-No, I do not. Senator FAULKNER-But you keep such meticulous records; you should be able to assist us with that. Ms Halton-I am sure I could go back and precisely tell you. I will take it on notice. You will appreciate that neither Ms Edwards nor I are now officers of the Department of the Prime Minister and Cabinet. In terms of going back and looking at the documentary evidence, we have had to do that out of hours and we have had to ask officers of the Department of the Prime Minister and Cabinet- Senator FAULKNER-When you went to the Department of the Prime Minister and Cabinet, were you still an officer? You would not have been an officer of the Department of the Prime Minister and Cabinet. Ms Halton-That is right-and neither was Ms Edwards. Senator FAULKNER-Everyone involved in this has left the department. Ms Halton-That is not uncommon, given the turnover in the Department of the Prime Minister and Cabinet. I have noted your comments in respect of this issue, but if you look at the mobility in that department you will see that this is not unusual. Senator Cook interjecting- Ms Halton-I do not think that would be uncommon either, given the two-year rotation in Defence. Senator FAULKNER-I do not know how usual or unusual it is-I cannot make any comment. I am merely noting that nearly everyone involved has gone to another department. Ms Halton-And I am noting that that is not unusual. Senator FAULKNER-In fact, it is very handy. So you cannot tell us which Sunday afternoon this was? Ms Halton-In preparing myself today-as you know, I got this folder last night-I have not been in a position to confirm when that would have been. As I started to say, in terms of CERTAIN MARITIME INCIDENT CMI 2078 SENATE-Select Tuesday, 30 July 2002 reaccessing material, we have had to go back in out of hours. That has required officers of the Department of the Prime Minister and Cabinet to be available and, in terms of efficiency, doing it at the same time, seemed the most sensible thing to do, in terms of prudence and economy. Senator FAULKNER-Why was it thought necessary to do it at all? Ms Halton-Because one has to go back and look at the papers, and we do not hold any of these papers. Senator FAULKNER-But this was both you and Ms Edwards. Ms Halton-We were both on notice that we were going to have to appear as witnesses and we were going to have to make comments about a series of things. Senator FAULKNER-Who took the initiative to organise this meeting at PM&C on a Sunday afternoon? Ms Halton-I wrote to Max Moore-Wilton asking him that I be allowed access to records held in the Department of the Prime Minister and Cabinet so that I could reacquaint myself with the material prior to giving evidence so that I could assure myself that my memories in certain areas were accurate and that I had reviewed written material that was relevant. That material is held, as you know, by the Department of the Prime Minister and Cabinet. It was therefore necessary to go to the Department of the Prime Minister and Cabinet to examine the material. That request was agreed by Mr Moore-Wilton. That request was then passed to, I think, the Acting Executive Coordinator-that is from memory, but I would not want to be held to that point precisely-and I received a phone call asking when that would be convenient. As the time that I had available in work hours did not enable me to devote what would be a number of hours to reviewing emails, files and things of that sort, it was agreed that some of the officers from the Department of the Prime Minister and Cabinet would make themselves available on a weekend as a courtesy to enable this to occur. Senator FAULKNER-But this was not just you; this was Ms Edwards as well. You had a meeting there with her. Ms Halton-My understanding is that she had made a similar request and the Department of the Prime Minister and Cabinet had indicated to her that they were making records available to me. My understanding is-this might not be correct-that she thought it would be easier for them if they did not have to go in twice. Senator FAULKNER-You took that initiative, but you did not take any initiative to meet with Ms Bryant in PM&C? Ms Halton-I do not know where Ms Bryant has come from; I thought we were discussing Ms Edwards. Senator FAULKNER-Sorry, I meant Ms Edwards. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2079 Ms Halton-No; in fact, my memory of that particular day is saying what particular written material I would like to look at and sitting at a computer terminal, having had my email records regenerated so I could go through them. Senator FAULKNER-Was Mr Webster there too? Ms Halton-I think so. Senator FAULKNER-It does say that Ms Bryant-whose name I mentioned before-was present that afternoon. Do you recall that? Ms Halton-She may well have been. The thing about Prime Minister and Cabinet is that they tend to be there seven days a week. There were a number of people in the building that day. My memory is that probably three out of the four SES in that division were there doing other business. Senator FAULKNER-This is what Ms Edwards says: `We also met at PM&C one Sunday afternoon.' The date is not provided. It would not have been 10 March, would it? Ms Halton-I do not understand the significance of 10 March. Senator FAULKNER-That is the same time when Mr Hammer was trying to have a meeting at his home with other officers. It would not have been 10 March. Ms Halton-I do not know when it was, Senator. I have said to you that I will take it on notice, and I am very happy to provide you that on notice. I think I should make the point, as you are trying to make a conjunction between those two events, that I was at no time aware of what Mr Hammer was doing or, indeed, any of that matter. So if he was or he was not meeting on a day the same as or similar to, I was not aware of it. But I will get you the date on notice. Senator FAULKNER-So Mr Moore-Wilton did not take any initiative here to suggest you get together? Ms Halton-No. Senator FAULKNER-This was your initiative. Ms Halton-No; please do not put words in mouth, Senator. Senator FAULKNER-You said you wrote to Mr Moore-Wilton. Ms Halton-I wrote to him not to get together. Those were your words. You conjuncted them, that it was my initiative to get together, and I think that is unreasonable. What I said to you was that I took the initiative to write to seek access to the written material so I could refresh my memory. CERTAIN MARITIME INCIDENT CMI 2080 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-And I am expected to believe that, by pure fluke, Ms Edwards is there, along with Ms Bryant and Mr Webster, and there is a meeting which Ms Edwards described as: My recollection is that the conversation mainly consisted of drawing each other's attention to key documents, checking records and recollections of factual events (such as who attended relevant meetings). Ms Bryant was present that afternoon (although not necessarily in the room for all of the conversation), as was Mr David Webster. And I am supposed to accept that this is just some sort of chance encounter. Ms Halton-No, Senator, and I frankly take great offence at what you are implying. Senator FAULKNER-I am not implying anything at the moment- Ms Halton-You are implying something, Senator. Senator FAULKNER-What I am doing, Ms Halton, is trying to ask questions. Ms Halton-Senator, you are implying that there is something unusual in seeking, when you are no longer the officer of a department, to reacquaint yourself with the documentary evidence. As I have explained to you, two of the people from whom you have taken extensive evidence are no longer officers and had sought agreement, which was granted, to revisit the written material in order to refresh their memories and to look at their own email traffic-which, by definition, occurs in different rooms, because there is not a series of terminals in one room. Senator FAULKNER-And drawing each other's attention to key documents. Ms Halton-I think that is a perfectly reasonable characterisation, because at the end of the day people were trying to make sure-just as I was trying to make sure that I had seen all of the relevant documents-that they had seen all the relevant documents. As I have pointed out to you, Senator, if there had been an extensive discussion about all of the details of this, the reality is that we would actually have exactly the same memory of it. We do not. And that is my point to you. What we have done is gone back and looked at the written records, and I cannot speak for others. What I know is that I, having asked for access, went to those written documents to look at them again, to look at the chronologies, and then asked a series of questions. So, for example, I asked the question, which officers from the Department of the Prime Minister and Cabinet then answered, about what time people came into meetings, to check my memories of things. So, for example, that question we have just canvassed extensively about when Air Vice Marshal Titheridge came and went on the 7th: that is precisely the kind of question I anticipated, and it is precisely what I asked following that discussion. Senator FAULKNER-But, anyway, this took place before you gave evidence at this committee on 17 April this year. Ms Halton-I believe that to be the case-which, by definition, therefore, and I think you may well be right- Senator FAULKNER-I am sorry; the 16th of April is when you gave evidence. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2081 Ms Halton-Yes. And, as I said to you, by definition it was preparation in terms of looking again at the documents so that I would be able to reconstruct my precise details of when I came and went, where I was on particular days, what I did on particular days, who did what, and who also happened to be in the room. Senator FAULKNER-If this was an attempt to reconcile different views, attitudes and recollections, it was not very successful, was it? Ms Halton-It was not an attempt to do that, Senator. You keep trying to say that it was, and it was not. Senator FAULKNER-After you appeared before this committee on 16 April, Ms Edwards had a further discussion with you the next day. I think that is right, isn't it? Ms Halton-Either then or in the immediate vicinity. Senator FAULKNER-According to Ms Edwards, it was 17 April-the day after you gave evidence before this committee. Ms Halton-I cannot tell you precisely, but I think that is consistent with my memory. We had a conversation soon after I gave evidence. Senator FAULKNER-Ms Edwards said: The day following Ms Halton's evidence at this Inquiry (ie April 17) she rang me and said that she felt she had not handled the questions around our differing recollections well initially, but had ultimately dealt with the issue. Did you say that to her? Ms Halton-I actually think we had a conversation about how unpleasant the experience had been, and I think- Senator FAULKNER-You should try being here all the time, like the rest of us. Ms Halton-That is why I am not a senator, Senator. I think we had a conversation that went to, as I said, the fact that it was unpleasant. I think, from memory, I said to her that our different memory was something which had come up but possibly not in the detail. Again, my memory is not inconsistent with that. I do not know that I would have put it in quite those words. Senator FAULKNER-I think this is important. Ms Halton-Why is it important, Senator? Senator FAULKNER-In my view it is important. I cannot speak on behalf of the committee, so let me just say that I think it is important to understand if you contacted Ms Edwards-both of you now having given evidence to this inquiry-and indicated to her in relation to your evidence that you felt that you had not handled questions around differing recollections well. I think that is significant. You asked me the question; fair enough; I will CERTAIN MARITIME INCIDENT CMI 2082 SENATE-Select Tuesday, 30 July 2002 answer it. We have been dealing now for a couple of hours with differing recollections, inconsistency of evidence, and conflict between witnesses here at the committee. That is why I think it is important. Ms Halton-Okay, that is a fair comment. My answers to you today go to the different sources of what might have been at the back of a conversation two people have had, the details of that conversation not being inconsistent but coming from different starting places. I did not say that last time. I may well have reflected on that point to Ms Edwards, and I think it goes to a couple of the conversations we have already had here today, one of which was about sit rep 59 and the other of which is about the chronology. I suppose my point is that I do not think that the details, the real import of a couple of particular conversations, are particularly different between us. I think the starting point of those conversations may well be different, and I think that is perfectly understandable. Last time, as you will appreciate, it was not for me to say at that particular point, `I think you will find other witnesses have different memories of this.' That was something you had to deal with yourself in good time. Maybe I should have said to other people, `I think I have a different memory of this,' but I do not think it was my place to so do. In terms of what I have said to you today about what may have been at the base of some of those different memories, I am trying to explain to you my understanding of why that might be the case. Senator FAULKNER-Was your conversation with Ms Edwards on 17 April a particularly tense one? Ms Halton-No. Senator FAULKNER-Really? Ms Halton-No, absolutely not. Senator FAULKNER-So it ended quite amicably, did it? Ms Halton-Certainly, from my perspective. And I have had conversations with her since which would not suggest that there is any particular personal rancour. We have a different memory of some things, but that does not mean that there is some fundamental problem. Senator FAULKNER-I appreciate that there are glaring differences between your evidence and hers. Ms Halton-I think to say `glaring differences' is a question of your interpretation. Senator FAULKNER-Yes, and I think I am trying to be reasonable. Some would go further, but I think `glaring differences' is more than fair. Ms Halton-In one case I would- Senator FAULKNER-But I am surprised to hear that you believe this was an amicable conversation. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2083 Ms Halton-As I say, I think the essence of the conversation was that this was not a particularly pleasant experience. That was the root cause of the conversation. Senator FAULKNER-In relation to the high level group on 30 August last year- Ms Halton-Of the 30th? Senator FAULKNER-Yes, the date was 30 August 2001. Ms Halton-Yes. Senator FAULKNER-I want to ask you about the minutes, if I could. Ms Halton-Yes. Senator FAULKNER-I do not want to get into the definitional issue of whether they are minutes or not. I think we both know what we are talking about. Ms Halton-Yes, and I spoke to you last time about note taking. Senator FAULKNER-Yes. There are three sets of notes or minutes of 30 August 2001. I think you can confirm that is the case. One is marked: HIGH LEVEL GROUP-30 August 2001, 9 am and 2.30 pm Ms Halton-Yes. Senator FAULKNER-One is marked: ... 30 August 2001, 9 am and 2.30 pm It is shorter. Ms Halton-Yes. Senator FAULKNER-And one is marked: HIGH LEVEL GROUP-30 August 2001, 2.30 pm I want to refer you to the first one. Ms Halton-The 9 a.m. one, the first one? Senator FAULKNER-The 9 a.m. and 2.30 p.m. one. Ms Halton-The one with the attendance list at the top? CERTAIN MARITIME INCIDENT CMI 2084 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Yes, that is right. I want to ask you about that first dot point, if I could. It says: Ags gave an update on the legal proceedings and advice on the status of the letter from those on board ... Which legal proceedings does that refer to? Ms Halton-Because, other than reading these notes, I genuinely have not looked at this, I would say to you that at this particular point my memory-but I have to go back and look at other records to confirm this-is that there had been advice from A-G's that legal proceedings were likely and about their likely nature. My memory is that they had received some sort of indication, via the legal fraternity, of cases that might be mounted. I do not think there was anything on foot at this point, but I could be corrected on that point; I think there were things on foot later. Senator FAULKNER-Please take on notice for me-I could spend a lot of time on this and I do not want to get too bogged down on it-a question relating to what that dot point means, particularly in relation to legal proceedings and advice on the status of the letter from those on board. Ms Halton-I suppose I would say to you that I do not know that I can answer that question. I cannot go to the Attorney's department; this is an issue that was raised by the Attorney's department. I can tell you what my memory of it is. I can see whether there is any other record in Prime Minister and Cabinet and, with their forbearance, I may or may not be able to answer that question. But it seems to me that this is a question that would be put more properly to A- G's. Senator FAULKNER-I am asking you in your capacity as former chair of the task force, which I think is reasonable in the circumstances. Ms Halton-I will give it my best endeavours. I will let you know if we are unable to- Senator FAULKNER-If that leads to an inadequate response, perhaps I can go to A-G's. At the meeting they had two representatives who may or may not be able to assist me. I would appreciate it if you could take this on notice: I am interested in understanding the status of the legal proceedings. I am not going to legal advice and the like but trying to understand the status of legal proceedings. What were the legal proceedings on that particular date? Ms Halton-That is the Thursday. My memory is that by the Thursday legal proceedings were not on foot but there were rumours of them. But we will take that on notice. Senator FAULKNER-If that is the case, it is one of the reasons I would like to have this more fully explained. If you can provide me with some information about that and how that came to the task force's attention, I would appreciate it. Ms Halton-Clearly, that question is answered in the minutes or the notes, because this was a briefing from the Attorney-General's Department, from the officers concerned. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2085 Senator FAULKNER-Thank you. Senator JACINTA COLLINS-Ms Halton, when looking at that, could you please clarify the word `refouled'? Ms Halton-Refouled? Senator JACINTA COLLINS-I want to know what the definition of that word is. Senator FAULKNER-I am aware that Senator Brandis wants to ask questions. I had cut away from what I was asking Ms Halton when Senator Collins commenced her questioning. I am just sensitive about the time. We have not even got to what Ms Halton prepared herself for, which of course was SIEVX. Senator BRANDIS-Quite. If Senator Collins was moving to a new topic, I was going to ask a question arising from your questions, Senator Faulkner. But if you are not moving on then I will wait until you are finished, Senator Collins. Senator JACINTA COLLINS-I do not think Ms Halton will be able to answer this question at present. While looking into matters specified by Senator Faulkner, I would ask her to explain the reference to `refouled'. Ms Halton-`Refouled' is a technical term. CHAIR-On the timing matter, at 12.30, which is our next break, we will have to make a decision about what the outlook for timing is. I know a number of us have made arrangements to leave at a later hour this day or tomorrow in anticipation of this running longer than we thought. Ms Halton-I might also make the point that it was anticipated, according to the advice I got, that I would be here from 9.30 to 12.30. I am very happy to continue after lunch, if that is necessary, but there will come a point mid-afternoon when I will have to leave. CHAIR-Let us hope we can get through this. We are all acutely mindful of the fact we have not got on to SIEVX yet. Ms Halton-We will get you the technical definition of `refouled'. It is a term used in the international migration context. It is in relation to repatriating someone into an environment where they can actively fear persecution. But we will get you the precise definition. I am sure that Ms Gillard could tell you chapter and verse; but we will come back in writing. Senator BRANDIS-My question is fairly generic. Senator Faulkner asked you a series of questions in relation to conversations, discussions and briefings you had with individuals and so on. Are you satisfied that all the conversations, discussions and briefings you had concerning the topics Senator Faulkner has explored with you over the last 20 or 30 minutes were consistent with PM&C guidelines and consistent with PM&C practice? CERTAIN MARITIME INCIDENT CMI 2086 SENATE-Select Tuesday, 30 July 2002 Ms Halton-Absolutely. There was nothing inconsistent and nothing improper. Senator BRANDIS-Of course, I am not suggesting impropriety. Ms Halton-Others were. Senator BRANDIS-I am really putting it on a slightly higher level than that: not only was it not improper but, as I understand it, it was perfectly proper and foursquare within the PM&C guidelines. Ms Halton-Yes. Senator BRANDIS-Am I correct in that understanding? Ms Halton-Yes, absolutely; and prudent preparation, correct. Senator JACINTA COLLINS-Just before we get to the SIEVX issue and while we are on odds and sods issues associated with the minutes, you might be able to assist the committee with one other matter related to the minutes on 25 September about changes to AMSA procedures. Ms Halton-On 25 September? Which point, Senator? Senator JACINTA COLLINS-It is on the first page, the third from last and the last dot points. We have reference to a Coastwatch update on intelligence-`currently doing an assessment of whether routes might change and require reworking of surveillance patterns, particularly once legislation is passed'. Then there is also a note of new AMSA procedures that would be trialled for a three-month period with a report back to the group as necessary. Can you explain for us what that relates to? Ms Halton-Again, not having prepared this at all, there is an international convention that says that all communications with maritime safety bodies should be in English. My memory is that it was found, through the Tampa exercise, that whilst that might be the international standard to which everyone signed up, including the Indonesian authorities-BASARNAS being the relevant Indonesian authority-in practice there was often not anybody on the other end of a fax who actually spoke English. My memory is that AMSA decided that, notwithstanding the international convention to which we are a signatory, as are they, it would be prudent for them to start sending faxes in Indonesian as well as, I think, in English. That actually drew their attention-when there were occasions to draw their attention to things-in a language that they would immediately comprehend. That is my memory: they had found that people who spoke English were available intermittently and not all the time. Senator JACINTA COLLINS-I would appreciate it if you would look further into that to see if there is some other aspect of that situation. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2087 Ms Halton-I am sorry, I am just advised by my colleague that in fact Indonesia is not a signatory to SAR so it may well be that they decided they just needed to get on and do it in Indonesian. But the essence of my memory is that they were starting to fax them in Indonesian. Senator JACINTA COLLINS-I was trying to understand whether that related to the move from Coastwatch away from the approach to Christmas Island. Ms Halton-I do not think so. I think it had nothing to do with it. Senator JACINTA COLLINS-When that move occurred, when and why did that occur? Ms Halton-Coastwatch and Defence basically intersected operationally in relation to Operation Relex. This was not a matter that was ever dealt with in any detail by the committee other than peripherally. As we have canvassed extensively previously, we were not in the operational line. Operation Relex was an operation that was run by Defence under the instructions of the Minister for Defence. The operational intersection between them and Coastwatch was a matter for them. They made those decisions depending on the availability of aircraft and a series of other logistical issues, is my understanding. But our understanding on this would be very incomplete because we were not briefed on a day-by-day basis as to what the precise operational arrangements were between Coastwatch and Defence. Senator JACINTA COLLINS-So if we are talking about, for instance, comments through the minutes about whether something had been sighted by surveillance, we should read interchangeably Coastwatch as meaning Coastwatch and/or Defence. Ms Halton-Yes. Our understanding was that it was Coastwatch and/or Defence, as was appropriate-and it was for them to coordinate-depending on the availability of assets and a number of other things they were surveiling, and I think there is a reference in the minutes at one point to checking that a PC3 was still surveiling because there was some ambiguity in the report from the relevant officers at that particular meeting. Senator JACINTA COLLINS-We will probably get to that later because that is a SIEVX issue. Ms Halton-Yes, exactly. But in terms of the surveiling activity, that was a matter for Operation Relex, together with Coastwatch, which they organised. Senator JACINTA COLLINS-So this comment here in the third last dot point that the routes may change requiring a reworking of surveillance patterns, particularly once legislation passed-can you explain what the issue was there? Ms Halton-That is a different issue. That is a discussion about intelligence. In fact, I remember this because Mark Bonser produced very pretty maps with all sorts of coloured lines on them, ultimately, which showed what they thought were likely routes depending on size of boat, people smuggler et cetera. I would not want to go into too much more detail. That was their effective risk assessment of likely routes. Senator JACINTA COLLINS-But what was the relevance of the legislation? CERTAIN MARITIME INCIDENT CMI 2088 SENATE-Select Tuesday, 30 July 2002 Ms Halton-In terms of excising particular islands, there was an assessment being made about whether larger vessels might go further afield and, if they did, which way they would go and whether there was a risk of that. Senator JACINTA COLLINS-So there was an assessment as to whether the surveillance based on Christmas Island and Ashmore might not be adequate once they were excised and larger ships might attempt other destinations. Ms Halton-No, essentially the surveillance of Christmas and Ashmore was a given. The question was what one did about the Torres Strait and the east coast. It was basically a risk assessment which, as I understand it, they prudently did on a regular basis, taking account of any new facts as they knew them. Senator FAULKNER-Was there any report to the task force on disruption activities? Ms Halton-There were a couple of reports. Some of them are referred to a little bit cryptically in here. I think you have already had evidence about the now famous T-shirts. So there were a couple of reports of that ilk. Senator FAULKNER-What do you understand disruption activities to be? Ms Halton-They were largely about provision of information to, for example, families who might have sailors who would crew these vessels towards Australia, making sure that they were aware of the penalties that might apply and about getting the assistance of Indonesian police to arrest people as they were heading towards vessels and that kind of thing. Senator FAULKNER-What agencies provided reports on these activities to the task force? Ms Halton-My memory is that the principal agency was the AFP, but with some corroboration. I think the corroboration on the T-shirts came from DFAT. I think they even came into one meeting with one. Senator FAULKNER-Are you aware of any legal advice being sought at any stage by any agency about the nature of this disruption activity? Ms Halton-No. Senator FAULKNER-Are you aware of the reason for the breakdown in the protocol-the MOU-between the INP, the Indonesian National Police, and the AFP? Ms Halton-No. Senator FAULKNER-No background to that at all? Ms Halton-No. Senator FAULKNER-Was that ever reported to or spoken about at the task force? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2089 Ms Halton-The only memory I have of a discussion about working relationships with the INP is in relation to where some of our officers were located. It is my memory that they had to be moved at one point. Then I know that there was a report that the Commissioner of the Australian Federal Police was going to visit Indonesia, but that was the extent of it. Senator FAULKNER-Did the People Smuggling Task Force give any tasking at all on disruption activities in Indonesia? Ms Halton-No. Senator FAULKNER-That was outside your terms of reference or brief? Ms Halton-Absolutely. Not only that, it goes back to the point I have made on several occasions about us not inserting ourselves in line structures. That was rightly a matter for other agencies. It was not germane to what we were principally doing, which was looking at people as they arrived on the edge of our contiguous zone and then either managing them in terms of accommodation or moving them off to processing centres or whatever. Senator FAULKNER-On two occasions, to my knowledge-I could find only two-there was discussion of disruption at the task force. One was on 10 October, where in the minutes these words appeared: Discussion of the `architecture'-disruption, regional conference proposal, UNHCR positions Are you able to tell us a little more about what `disruption' meant in that context? Ms Halton-My memory of this is that there was to be a conference-and I think it subsequently occurred-which would look at the whole question of people-smuggling, and I think there was some discussion about other sorts of transnational crime. My memory is that this was part of that updating of where we were at in terms of getting an agreement to have a regional conference. Senator FAULKNER-It also appears on 12 October 2001 with the `discussion of disruption activity and scope for beefing up'. Do you know what `scope for beefing up' meant? Ms Halton-Again, this would have been one of only a very few conversations on this issue. As for whether or not the information was being transmitted effectively, I do not want to say that there was a T-shirt discussion here-I do not know that there was-but it was of that ilk. That is my memory. Senator FAULKNER-Did it go to resources for beefing up? Ms Halton-I do not think so, no. You have to remember that there were resources provided for this in the previous budget. Again, I think we canvassed last time the additional resources that have been allocated to this broad suite of issues. Senator FAULKNER-Maybe it is fair enough, but you do not seem to have a real conceptual understanding of what this disruption activity might be. CERTAIN MARITIME INCIDENT CMI 2090 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No. The essence of the disruption activity was not, as I have just said, canvassed in this forum in any kind of detail. It was as peripheral colour and movement on a couple of occasions, as a rhetorical question about whether people were doing their jobs as assigned elsewhere. There was the notion of an international conference and the notion of whether the information that was being provided through fishing villages to families about likely penalties for people-smuggling was being delivered. Senator FAULKNER-But was beefing up disruption activities an actual decision of the task force? I suppose that is what I am trying to understand. Ms Halton-As we have canvassed extensively, the task force did not take decisions. The fact that issues were sometimes discussed amongst the agencies was for people's information. There were, as you know, sometimes products from these meetings which went to people for decisions. I think this does say quite clearly `update/discussion'. The fact that there was some discussion about this issue does not constitute any kind of a decision. As I have just said, issues around disruption were not within the purview of this committee. Senator FAULKNER-Do you have an understanding of who carried out these disruption activities? Ms Halton-Not in detail, no. Senator FAULKNER-What information are you able to give us? I appreciate that you may not know this in detail, but what is your understanding? Ms Halton-I do not know that I could say to you I had an understanding other than `persons in Indonesia and elsewhere'. Senator FAULKNER-But what sorts of persons? Ms Halton-I do not have an understanding of that. It was not my business in this context to ask those detailed sorts of questions. There were people who attended these meetings who, put bluntly, would not have had the security clearance to be briefed on these sorts of matters. They were not canvassed in these meetings in detail. Senator FAULKNER-The reports to the task force about this came from whom? Which particular agencies or individuals gave the reports? Ms Halton-My memory is that the AFP did make some comment about this issue. My memory is also that DFAT did the show and tell with the T-shirts. I am probably sweeping into this notion of disruption the broader context of an information campaign, and that is possibly unfair to my DFAT colleagues, but that goes to the fact that this issue was not canvassed in anything even approximating detail. Senator FAULKNER-Mr Moses and Mr Castles were pretty regular attenders at the task force, weren't they? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2091 Ms Halton-Yes, they were. Senator FAULKNER-Did they give any information to the task force about these sorts of activities? Ms Halton-No, not in detail. It was not within the purview of the committee. Senator JACINTA COLLINS-There is a further reference to the broader characterisation of disruption activities-you referred to information campaigns-on 23 October. In the second last dot point on the second page of the minutes under `Indonesia' there is a reference to the information campaign moving well. Then a bit further down there is a dot point saying that DFAT was `to seek Rick Smith's views on making of assistance direct to embassy here' and that `AFP should send resources if required'. Do you know what that was referring to? Ms Halton-No, I cannot tell you. Senator JACINTA COLLINS-Could you take it on notice to refresh your memory? Ms Halton-Yes. Again, I cannot be sure that on this one we will have anything more, but we will look at it. Senator JACINTA COLLINS-We are talking about assistance direct to, I presume, the Indonesian embassy in Australia? Ms Halton-Yes. Senator JACINTA COLLINS-And the AFP `sending resources'-I find it difficult to imagine what is being referred to there. Ms Halton-It would probably have been some sort of briefing, but I will take that on notice. Senator FAULKNER-Is it fair to say that, generally, the task force did have knowledge of the most up-to-date intelligence about potential boat arrivals? Ms Halton-It depends on how you define `intelligence'. The task force had a broad idea of what boats may or may not have been out there, and when I say `out there' I mean in the pipeline, not just physically on the water. At the task force meetings-again, I have said this previously-my standard practice was to go around the table, seeking updates, information that people wished to table and what have you. In so doing, relevant agencies were able to, and did, broadly anticipate what might be likely over the forthcoming period- CHAIR-Sorry, I do not want to interrupt your answer, but I just want to ask a broader question. Please complete your answer. Ms Halton-It is all right. I have lost my train of thought-off you go. CHAIR-Is this an appropriate time? Maybe we should break for lunch. CERTAIN MARITIME INCIDENT CMI 2092 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-I was expecting you to interrupt before this, Mr Chair. CHAIR-I just thought I would squeeze in a bit more extra time. But that does indicate consent and, as there is no demur, we will now adjourn. Proceedings suspended from 12.33 p.m. to 1.49 p.m. CHAIR-Order! The committee will resume. Ms Halton-Can I go back to one of the questions that was asked before the break? CHAIR-Do you want to clear up some matters? Ms Halton-A couple of things. CHAIR-Yes, please do. Ms Halton-Firstly, Senator Collins asked about the definition of `refoulement'. It comes from article 33 of the 1951 refugee convention. I will table the article afterwards. Under the heading `Prohibition of expulsion or return', otherwise known as `refoulement', article 33 states: 1. No Contracting State shall expel or return ("refouler")- as in a French verb- a refugee in any manner whatsoever to the frontiers of territories where his life or freedom- we note the generic gender reference- would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. I am happy to table that. I should say that, in generic conversation with my DIMIA colleagues, they tend to shorthand this to having a well-founded fear of persecution. Someone might like to provide this to Senator Collins. On another issue, you made a comment at the outset that in my evidence last time I said about my saying in evidence last time about having heard things on the radio. My colleagues have located this. I think I said, at CMI 965, on 16 April that I did not become aware that it was in the public domain until very much later that night. I did have a transcript of the media stuff in relation to the shots-possibly you are confusing the two-but that is the reference that I can find to this particular issue. CHAIR-I do not think I am confusing it. The issue I had in my mind-and thank you for drawing my attention to the Hansard-is that there was an ABC report that was broadcast about children being thrown overboard before your committee met that day. If you like, I can now ask you a question that might arise from that, which would resolve my line of questioning. Just to CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2093 give you the context, I am trying to work out how it would be that a news outlet could report such a thing in those circumstances, when the time lines are so tight. The only way it could happen, it would seem to me, is that someone along the line leaked the story to them. Did that story come from your committee or from you? Ms Halton-No. On the assumption that you are right-that there was a news report prior to the 9 a.m. convening of that meeting-my evidence has been quite consistently that I became aware of that issue either immediately on the commencement of or immediately prior to. All our other corroboration now suggests it was in a phone call at 9.15 a.m. I was not aware of that issue. I think I also gave evidence last time that I did not communicate that issue to anyone other than in the discussion in that meeting, of which you are aware. I think I confirmed last time that my phone call to the Prime Minister's office on this issue was at 1532. CHAIR-Let me be a little laborious about this. I understood you to say that you did not know of this story until at least 9.15 a.m on 7 October. Ms Halton-What I have said to you is that I am confident I first heard it from Air Vice Marshal Titheridge. Other sources suggest that his phone call to me was at nine. I think Katrina's record showed 9.15 a.m. His phone record showed 9.17 a.m., so that is consistent with my memory that it was at the beginning of that meeting. I think I said last time that I could not be quite confident whether it was immediately preceding the meeting or whether it was just as the meeting was convening, but we are talking here in the order of a 15- or 20-minute difference. In terms of any ABC report, I know from the security swipes that I walked into the building at 8.54 a.m. I would certainly not have heard a news bulletin on my way there. I live approximately a two-minute drive from that office. CHAIR-And there would have been no news bulletin at all. Would that be that you heard no report-not of children being thrown overboard necessarily-of what turned out later to be SIEV4 arriving in the zone? Ms Halton-I am not aware of there being things in the public domain prior to our being advised of it. CHAIR-That is a blanket answer no, that you are not aware of the news bulletin either? You are confirming that. Ms Halton-Mmm. CHAIR-That `mmm' is a yes? Ms Halton-It is a yes. Senator JACINTA COLLINS-Ms Halton, starting on the SIEVX issue, I think it is useful if we go back to the Hansard from the last occasion. Ms Halton-Can you tell me what page, Senator? CERTAIN MARITIME INCIDENT CMI 2094 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-In particular page 947, where you are responding to questions from Senator Bartlett. There are two references there. I take you to the second part of your comment in the middle of the page, the section starting with `Not necessarily'. You say: It is fair to say that sometimes we had a vague knowledge that maybe somewhere something had left. But to say that we had categorical knowledge of individual vessels leaving a particular place at a particular time in a categorical way I think is to misstate the truth. In response to the next question, the second part of your answer reads: I have certainly read something in the newspapers in the last little while about our state of knowledge of particular vessels which, I have to say to you, from where I sat, is absolutely not correct. Ms Halton-That is correct. Senator JACINTA COLLINS-I am aware that in some of the reports it has been mis- suggested that you had denied knowledge- Ms Halton-Which is not what I said here. Senator JACINTA COLLINS-That is why I have come back to here. The way I read the first of those two comments, it is almost the two extremes of the situation. There is vague knowledge and there is categorical knowledge. My concern is that, now that we have had the opportunity to look at the People Smuggling Task Force notes, the truth of the matter seems to fit somewhere between the two. Ms Halton-The point I was making here, and this is a very condensed point- Senator JACINTA COLLINS-Which is why I have taken you back there so you can elaborate now. Ms Halton-That is fine. We should probably talk, if it assists, in terms of the nature of the briefings that were provided about anticipated departures-one boat, two boats, several boats. I think I have said this on the record but certainly publicly on a number of occasions: for every time we were told that a boat was leaving, about to leave, had left, what have you, I would say probably one in 10 turned up. Maybe that is an exaggeration but it is of that order of magnitude. There were a lot of intelligence reports. Sometimes that was because the boat did not exist, sometimes that was because the boat had returned to Indonesia, sometimes the boat had stopped at several places along the way. We almost never had a clear understanding of exactly who was organising what, where it was and where it was up to. I think the point I was making here is that there had been allegations made in the press that we categorically knew about the vessel that subsequently became known as SIEVX, that we absolutely knew it existed. We knew where it was and we knew when it had left and, therefore, there was the allegation made about dereliction in relation to not having gone and found it. The point I was attempting to make here, albeit a very concatenated version, was that that was never the case. In terms of our experience, sometimes vessels that people thought had left turned up. It may well be that in terms of the chain of information-accepting, if you will, that this is a bit like Chinese whispers-someone at the top end of the chain knew something categorically, but CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2095 it was not presented to us by the time we heard it, and we did not get great detailed catalogues in relation to all of this. These were not absolute facts, and our experience was very frequently that even things that people thought were a reasonable prospect did not eventuate. Senator FAULKNER-Did you identify the vessels, Ms Halton? We know that when the Navy intercepted a vessel there was a numbered- Ms Halton-Sequence, basically, the order that they turned up. Senator FAULKNER-A numbered sequence of suspected illegal entry vessels. I wonder if you could assist us by informing us how at this much earlier stage the task force dealt with identification. In the case of SIEVX, we know that the people smuggler was Abu Qussey. Was it done by smuggler, by location or in some other way? Ms Halton-Essentially that was not the task force's role. We started on that line of questioning before lunch. The intelligence agencies did tend to, I think, have a listing of them by smuggler. I have to say I would not think that nearly anybody, other than the people involved in the detail of intelligence, was cognisant of who the smugglers were. It was not germane to what we were doing. This goes back to the conversation we just had about disruption- Senator FAULKNER-Yes, but it is mainly an identifier, if you like. I assumed it would mainly be by people smuggler, but I wanted to check that. Ms Halton-And essentially I think that was their way of keeping track. Our principal interest was in relation to what might be turning up tomorrow and whether we were going to have a problem in terms of accommodation or other issues. So our interest was in what was imminent. Senator FAULKNER-Did you try to identify the boats in any way so that you could keep tabs on this sort of thing yourself? Ms Halton-No. There is one boat which got itself a rather unfortunate title, and I would be hard-pressed to find it in the minutes right now- Senator FAULKNER-The poison pill boat. Ms Halton-That is the one. Because there was a specific view about tactics that might be employed, it was one that was separately identified for precisely that reason. But the rest, no, I would not say that they were separately identified. Again, it goes back to those comments, that SIEVX as we now know it was explicitly identified by that group. It would have been part of the panoply of vague maybes, sometimes more likelies, in the suite of things that might turn up. Senator FAULKNER-The task force was really updated through August, September and October about the activities of the people smuggler Abu Qussey, who in fact was the person responsible- CERTAIN MARITIME INCIDENT CMI 2096 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No, regular updates on the activities of individuals were not a feature other than perhaps by way of peripheral relevance; in other words, the fact that there might be a particular person behind a particular series of activities. I think there was a discussion at one point about somebody giving up people smuggling, and there was a more robust discussion about that and that therefore meaning that anything he might have had in the pipeline was not likely to now emerge. I should add-otherwise I will mislead you-that there was also a discussion about one particular individual. Again, I think this is recorded in the contemporaneous notes. He was operating out of a different country other than Indonesia, and there was some traffic around that particular individual being in custody and working with the government of that particular country. Senator FAULKNER-Just for the record, before we go back to Senator Collins, what were the tactics involved in the poison pill boat? Ms Halton-I think as you would probably guess from the title. Senator FAULKNER-As you would appreciate, Ms Halton, I try not to guess. It is better if you explain it to us. Ms Halton-I think there was an expectation that the people concerned might be prepared to take drastic action if their requests to be taken to particular places were not realised. Senator FAULKNER-Including the possibility of causing self-mutilation or possibly even taking their own lives, effectively. Ms Halton-That was the suggestion. As it happened, that did not eventuate. Senator BRANDIS-Was that name meant to be a literal description of what was feared? When you say `poison pill', was there an apprehension that there might be some drug ingested by the asylum seekers? Ms Halton-That was my understanding. Senator BRANDIS-Was that ever verified subsequently? Ms Halton-As I said, we never had a vessel that met that description and we never saw that behaviour. I think had we seen it that is probably what we would be discussing in a committee like this rather than the other issue. Senator BRANDIS-Indeed. Perhaps you are not at liberty to disclose this, but what was the source of information that that tactic may have been at risk of being employed on the vessel? Ms Halton-I think it would be not appropriate for me to say. Senator BRANDIS-That is fine. I will not press it. Ms Halton-Sufficient to say that people thought it was a genuine likelihood. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2097 Senator JACINTA COLLINS-If these issues were peripheral to what the task force did, where were they managed from? Ms Halton-You probably know, Senator, that there had been work done under the aegis of the Coastal Surveillance Task Force in mid-1999, which sought to more properly focus and coordinate intelligence work across agencies who were responsible in this particular area. My understanding is that joint work was done throughout this period between DIMIA, the AFP and Coastwatch. Senator JACINTA COLLINS-Was that the genesis of the DIMIA-AFP strike force? Ms Halton-I think its genesis is a little bit later, but it comes from the same original wellspring, if we can describe it that way. Senator JACINTA COLLINS-Going back to your earlier comments about the nature of the intelligence coming to the task force, once these minutes became available-and I will come back to this page later; but I think this one clarifies the point best-the concern was that on 22 October, in relation to the mischaracterisation of SIEVX as SIEV8, there is the comment: Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives. Ms Halton-Yes. Senator JACINTA COLLINS-There is not another SIEV throughout all of these minutes where that characterisation is ever reflected. Ms Halton-And that reflects a particular conversation on that day. Senator JACINTA COLLINS-But for this particular SIEV to then be characterised along with the rest as the subject of limited and non-categorical reports and for this statement to exist in the minutes-can I put to you at least on the public record-demonstrates a clash of concepts? Ms Halton-I think we need to be clear that there was a general uncertainty about all of the reporting. Let us take that as the foundation. There were a couple of things that were unusual about this period. Firstly, there was the reporting about multiple boats, which was unusual. Secondly, there was a fair amount of accommodation pressure on Christmas Island. So there was a level of attention being paid in terms of what might happen and of managing the logistics if it did happen, which probably meant there was a greater level of discussion at this point than there was at another point. In terms of this particular issue being something of which we were more certain, you will see in the notes that there was multisource reporting. Some of the other vessels were single-source reports. In our experience, single-source reporting was less reliable than multisource reporting. Therefore, if you wanted to come down to a confidence interval about what was more likely than what was not likely, this one was more likely. The conversation on the 22nd-and it goes to the things that are explained there-was actually a discussion about whether in fact this boat existed. Essentially, what that reflects-it goes back to the conversation about memories and what have you- CERTAIN MARITIME INCIDENT CMI 2098 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Just before you go on with that point, how can it be about whether the boat existed if the comment refers to it being `grossly overloaded'? Ms Halton-That reflects what the DIMIA people, from memory, thought: whether or not it was on its way, as in on the water, heading towards Christmas Island. That was what they understood in terms of their intelligence, from whatever sources it came. The conversation went on and the `no jetsam' and `no reports from relatives' followed a conversation-I remember this because I was frankly a bit startled. What the DIMIA people advised was that they were now starting to think that the boat was not on the water. So to say that it did not exist- Senator JACINTA COLLINS-Just before you go on, what time of day was this meeting? It is not on the minutes is why I ask. Ms Halton-I would have to take that on notice. I have not got that with me. Senator JACINTA COLLINS-3.15. Sorry, we know that from earlier evidence. Ms Halton-The DIMIA people advised that, if a vessel had departed and had not arrived- that is, if some tragedy had befallen it-they tended to get phone calls from relatives, because the relatives in Australia knew that the vessel had left. They reported that they had not had any reporting. There was a report that no jetsam had been spotted. In fact, the conversation turned on whether in fact it existed, whether it had returned to Indonesia or what have you. My memory is that the balance of view at that point-we now know that, tragically, this was not the case-was that the vessel was not on the water. Senator JACINTA COLLINS-Sorry? Ms Halton-That it was not en route to Christmas Island. This was as a consequence of the DIMIA experience. This was a conversation to which, I have to say, we were largely observers, because this is not our technical area. Senator JACINTA COLLINS-So who was involved in this conversation? Ms Halton-Principally, it would have been the DIMIA people, who were talking about their experience of vessels leaving Indonesia and particularly vessels that were overdue, and principally, also, people from Coastwatch about what you tended to see in the event that a vessel foundered-that is, flotsam. So there was this dialogue about whether or not this vessel was actually en route. Senator JACINTA COLLINS-Was there AFP participation in that conversation? Ms Halton-From memory, the AFP were actually at that meeting. I do not particularly recall any active participation in that conversation. I actively recall this issue about no calls from relatives as being the kind of thing that they would use to assess whether in fact the vessel had foundered. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2099 Senator JACINTA COLLINS-So your view, then, is that this discussion here reflected a view that this ship may not be en route to Christmas Island? Ms Halton-Mmm. And there was a balancing, which I think is reflected in that item, because that item is reflecting, on the one hand, some information that was obviously available to DIMIA-and again, we know with hindsight that this was in fact accurate and that the vessel was overloaded. So on the one hand there was information that said, `We think there is a vessel. We can't confirm it; we didn't see it leave.' It is back to categorical: no government person actively saw this thing and could say with categorical assurance, `It left from here with this many people on it.' They did not know that; that was the import. But they balanced- Senator JACINTA COLLINS-The other problem we have is that at this stage the two principal parties to the discussion that you are referring to were not aware of the AFP confirmation of the departure, which arrived on the 20th. Ms Halton-I cannot say I am aware of that either, Senator. Senator JACINTA COLLINS-It is in the intelligence summary that we have been provided with: the telephone conversation that went from the strike team to Defence confirming, through an additional source of intelligence, that the ship had in fact departed. I appreciate what you have said about not having had the opportunity or the time to peruse the Hansard of other evidence, but the evidence we had on the last occasion from DIMIA was that it was not until after the 22nd-sorry, it might have been on the 22nd-that they actually received the information that the AFP was confirming that a departure had occurred. Senator FAULKNER-Ms Halton, don't Defence, Coastwatch and the AFP know on the 20th that the boat has departed? Ms Halton-I cannot comment on that, Senator, because I am not aware of this. I have my handwritten notes here. You are saying that in fact DIMIA are saying that they were not told until the 22nd. That was not something that was ever reported here, to my knowledge. Senator FAULKNER-I said Defence, the AFP and Coastwatch knew on 20 October- Ms Halton-I cannot comment on that, Senator, because I do not know. Senator FAULKNER-which of course was a corroboration, effectively, that the vessel had left. Ms Halton-That was not the advice that I received-or we received-in this context. As to what was transpiring between those agencies, I just cannot comment. Senator JACINTA COLLINS-So this was not part of the advice that fed into the report, for instance, on 20 October, that the second boat was expected to arrive the next day? Ms Halton-Yes, and again this goes to the balance of probabilities. If you read that particular sentence, it goes on: `if arrives, assessment to be made whether'. So we are planning CERTAIN MARITIME INCIDENT CMI 2100 SENATE-Select Tuesday, 30 July 2002 prudently for things that may or may not happen. There is a greater probability with things that are multisource-we just discussed that-but here we are still saying `if arrives'. There is no categorical assurance or understanding in our minds that it is absolutely on its way. It had not been spotted. The confirmation that we always relied on in terms of vessels was them actually being found by an aircraft. Our experience of however many SIEVs beforehand was that sometimes they got unnervingly close to Ashmore or to Christmas Island before they were actually spotted. Senator FAULKNER-But let us just go back a step. Senator Collins is methodically working through some of the material that is available out of the task force notes or minutes- or about to methodically work through it. When, in your view, do the task force notes or minutes first record the existence of or reports of SIEVX? Maybe that is a better place to start. Ms Halton-If we go back to the question you just asked me about whether we identified separate boats, I would have to say that you would be hard pressed in the task force concept to say we ever identified a particular boat at a particular time. So to say that that one was separately and categorically identified, I think, is very difficult. There is no doubt that we had reports of likely arrivals a week before this, but I will have to go back and have a look. Senator FAULKNER-There is 18 October 2001. That seems to be a reasonable starting point to me. Ms Halton-Yes, and I have a memory that, in fact, there was reporting prior to this. It goes back to that broad update that people do about a range of possibilities. It is not possible to say whether one of those vessels in the range of possibilities was categorically this vessel. On the balance of probabilities that is likely. From memory, when we reviewed this immediately after the event, there was a conversation that, when they actually looked back-and I think that this was advice that DIMIA gave-and tracked that particular vessel back from the time they had actually seen it, they had had reports of it leaving five or six times, but I do not think you can say that the task force was aware of `it'. Senator FAULKNER-The whole role of the task force, as I understand it, in part, is to share information on these important issues, including boat departures from Indonesia. Ms Halton-The role of the task force is not to sieve through intelligence. As I have already outlined, there was a separate arrangement which brought together the intelligence processes that had its origins in an earlier review of all of these exercises. The task force got, basically, a high-level summary of what might be in prospect in terms of the numbers of people that would need to be managed, rather than a kind of categorical catalogue of every single possibility, every single people smuggler et cetera. As I have said, this particular period was unusual because, with something other than the single-source reporting, there seemed to be more boats in the ether and with a significant number of people. The task force was very focused on the accommodation issues and particularly on how, if that number of people turned up, they would actually be accommodated. If you look at the contemporaneous notes, there is quite a lot of traffic in here about when people could be moved from Ashmore, people being moved, the use of the Samson Explorer, the issues around C130s going to Manus et cetera, and that was because the principal focus was on the logistics if they turned up. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2101 Senator FAULKNER-Prior to the task force minutes or notes of 18 October, are you able to point out to the committee any of those references of boats that may have included SIEVX? Ms Halton-I do not believe there is an explicit reference in here, no. Senator FAULKNER-I was talking about non-explicit references, if you like. Are you able to point out any non-explicit reference to us? Ms Halton-No, other than that there are a couple of occasions on which there were briefings given. For example, on 12 October there is just a one-liner: `Assessments of risks of further boats provided by Coastwatch'. I have just said to you that my memory is that DIMIA told us that the boat that eventually became titled SIEVX had been assessed at various points as being likely to leave about five or six times. My expectation would be that as part of that-the quick canter through what might be in prospect-that would have been one of the features there. You will have noted that the minute-taker changed and the detail in the notes changes. Senator FAULKNER-Let's move then to 18 October 2001. Under the subheading `Further prospective arrivals' are those two dot points that exist in the minutes there: Intelligence re two boats with total 600 PUAs expected at Christmas ... and it goes on to say: ... some risk of vessels in poor condition and rescue at sea. Second dot point: No confirmed sightings by Coastwatch but multi-source information with high confidence level. Are you able to say to us that that, in part, refers to what is now described as SIEVX? Ms Halton-No, I cannot confirm that because the vessels were not identified in that level of detail. I think, in retrospect, yes, one of them was, but in terms of at the time were we tracking particular vessels and did we know categorically which vessel was which here, no. So we knew- Senator BRANDIS-You couldn't have done at that early stage in the proceedings, could you? Ms Halton-No, our principal issue and our principal interest was, in fact, in the 600 and 600. What we were actually worried about were the total numbers not- Senator FAULKNER-Are you able to say though whether one of these was an Abu Qussey vessel? Ms Halton-Not categorically, no. CERTAIN MARITIME INCIDENT CMI 2102 SENATE-Select Tuesday, 30 July 2002 Senator BRANDIS-Is that so for the same reason-because you just could not have known at that point in the sequence of events? Ms Halton-What I cannot comment on is what Coastwatch and DIMIA would have known. It is very likely that they actually did have them tagged in that way but, in terms of what was canvassed here, I do not believe that it was canvassed in that level of detail. Senator BRANDIS-So those pieces of information if they existed had not come up the chain to you by that stage? Ms Halton-Yes, I would believe that they would have existed in terms of likelihoods of particular smugglers and particular vessels. Whether, particularly in this environment where there were a number of vessels mooted, people knew categorically which one belonged to whom, I cannot comment on. Senator BRANDIS-I suppose we should not lose sight of the fact, Ms Halton, that at the level at which you operated you were at the end of a filtering process whereby information was filtered and filtered again, so that what came to you was a subset of the totality of all the information at the beginning of the filtering process. Is that right? Ms Halton-I think `highly digested' would be the- Senator BRANDIS-Highly digested! Senator FAULKNER-If you cannot say categorically that one of these vessels was an Abu Qussey vessel, are you able to say with a reasonable degree of certainty that that was the case? Ms Halton-No, not really. There was a lot of publicity about that particular people smuggler after the event, and I remember that there was a lot of coverage in the press. It would be creating a memory, Senator, if I were say to you that we categorically discussed and/or had drawn to our attention a particular people smuggler. There would be no reason for that to have happened. As I have already explained to you, the intelligence was being dealt with elsewhere, and so our principal issue was an assessment of what numbers might be about to turn up, rather than who was the orchestrator of this, other than the unfortunately titled `other boat'. Senator JACINTA COLLINS-The first dot point here refers to `some risk of vessels in poor condition and rescue at sea'. What we know of from DIMIA is the concern that some of the disruption activities had in a sense led to the encouragement of a less experienced people smuggler-which this Qussey person was described as being, perhaps in relation to the ultimate demise of the ship-due to the indirect impact of the disruption activities. None of that was discussed at the People Smuggling Task Force at that stage? Ms Halton-No, I have no knowledge of the experience or otherwise of people smugglers. Senator JACINTA COLLINS-What about this reference to `some risk of vessels in poor condition and rescue at sea?' CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2103 Ms Halton-You will recall that, by this point, the Navy's instructions about return if that were possible were well known. Certainly that was therefore an issue in terms of the seaworthiness of vessels, so the likelihood that a particular vessel might be seaworthy for a return trip was something that became of interest at this time. Clearly people were making an assessment here, and I have to say that, as we well know, some of the vessels that came were not in good condition. Some of them were in very good condition; some of them were not. It varied. So, clearly, the advice here is in the context of whether or not a return would be possible with some of these vessels. Senator JACINTA COLLINS-Did the condition of the ships deteriorate significantly after the decision to return? Ms Halton-Not that I am aware of. I think it was variable. Senator FAULKNER-Surely, though, if you have multisource information at the high confidence level-and that is recorded in your own notes and minutes-that must have had some status and significance? Ms Halton-It did, and I think I have indicated that to you. Our experience was that multisource information tended to be more reliable than single source. If multisource information suggested that 1,200 people or thereabouts were likely to turn up, that was to be considered in a more serious way than a single source that said that 1,200 people were about to turn up. We have gone through the point that the categorical confirmation that individual vessels had left was not the advice that we were provided. Senator Collins clearly has some information in relation to other issues which I am not familiar with. But in terms of what we were advised- and you can see this here-we thought that there was a reasonable prospect that 1,200 people were going to turn up. There was a particularly wry sense to the discussions at several points because vessels had the habit of turning up on Friday afternoons and ruining everyone's weekend. This seemed to happen with monotonous regularity. I think the 18th was a Thursday, and my memory is that people said, `Here we go again; another weekend.' Senator FAULKNER-But are you able to say what `No confirmed sightings by Coastwatch' means here? Ms Halton-That Coastwatch had been unable to identify any of these anticipated vessels; so they had not spotted any. I made the point earlier that the objective-I did not make this point, but I will go on to the point I made-was to identify these vessels before they were on the edge of the contiguous zone, to enable people to consider their response to the vessel and to be positioned to respond to the vessel. Sometimes vessels got quite close to Christmas Island or Ashmore Island before they were spotted. Senator FAULKNER-But do you know if Coastwatch was looking for particular vessels on 18 October? Ms Halton-My understanding generically was that the agencies who were tasked with looking for things were out looking for things. It was certainly our understanding that in a period of heightened likelihood, if I can describe it that way-we are talking here about CERTAIN MARITIME INCIDENT CMI 2104 SENATE-Select Tuesday, 30 July 2002 multisource information-there was an active process of trying to identify any vessel that might be on the water heading to either Christmas Island or Ashmore. Senator FAULKNER-But they have indicated to this committee that they did not search the area around Christmas Island, that they were a thousand nautical miles away. Ms Halton-I have to say that was not communicated to us, Senator. I think you will see it in that point on the 21st, where explicitly we have had a conversation about it. You will see that in the reference, where it says `Check Defence P3 is maintaining surveillance'. It was certainly our understanding that that is what they were doing. Did they show us flight patterns? Never. Did they give us any of the details of those operations? No, never. Did we have an understanding that they were out looking? Absolutely. Senator FAULKNER-When did you get the DIMIA intelligence notes-say, the DIMIA intelligence note of 18 October? When would that ordinarily have come to you and the task force? Ms Halton-They would not have come to the task force. They would have been talked about by someone from DIMIA, if the person from DIMIA had them with them. The discussion about intelligence was most commonly run by Coastwatch in those meeting, so it was most normal for Coastwatch to have a sort of sheet with plottings of vessels that they thought may or may not be in prospect. The officer from Coastwatch would basically give a commentary on that. Senator FAULKNER-Were those sheets kept on file by the task force? Ms Halton-No, they were not. They were not provided to other people around the table. Senator FAULKNER-They were in the possession of the Coastwatch representative on the task force? Ms Halton-That is correct. Senator FAULKNER-And that representative took those with them? Ms Halton-Yes. Senator FAULKNER-But they plotted the suspected location of the SIEVs? Ms Halton-Not the location. Let us be clear about what I mean by `plotted'. Essentially, they had a time line. I suspect it would have been smuggling rings of some sort or other. They were plotting information such as they knew it about what might be in prospect: `We might get something in a month's time; we might get something in two weeks' time.' Possibly, saying that only one in 10 of those turned up is too extreme, but it would not have been one in five. Senator FAULKNER-Do you have available a copy of the status report that was prepared for the Prime Minister on the issues that were dealt with on 18 October? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2105 Ms Halton-I do not think I have a copy, but I will check. Senator FAULKNER-I wonder if that could be provided. If it cannot be, could you read to us- Ms Halton-I do not think I have it, Senator; I am sorry. Senator FAULKNER-I am interested in understanding the form in which these matters are communicated from the task force to the Prime Minister. Could you assist us with that? Ms Halton-The first thing I should say is that a status report on the 18th would, I think, have been a departmental status report rather than a task force report. My officers will just go and find out. My memory is that there was a brief to the Prime Minister done from the Department of Prime Minister and Cabinet, not from the task force. But that brief would, I imagine, have canvassed particularly this likelihood of- Senator FAULKNER-The task force notes say: `Status report to be prepared for PM on above issues; copy attached.' Ms Halton-You might be right; it might be a task force paper. I will stand to be corrected on that. If it is a task force paper, it would be my suspicion that it would have said it in probably almost the same terms as those listed here. But someone has just gone out of the room and we can come back and confirm that for you. Senator FAULKNER-Okay, we might come back to that. Dr Toloni from Defence was present at that meeting. Ms Halton-That is correct. Senator FAULKNER-What was his position? Do you know? Ms Halton-His name is Toloni, Dr Paul Toloni. I cannot tell you precisely what his classification or title was. He was certainly there with Air Vice Marshal Titheridge, who also attended that meeting. Air Vice Marshal Titheridge was certainly the senior officer, in my understanding. Senator FAULKNER-So he was probably from Strategic Command. Ms Halton-I would not want to say that categorically, but that would be my guess. Sometimes people from the public affairs area came. Senator FAULKNER-Those from the Defence task group who are assisting the committee might be able to establish that. I was just wondering, given that his name was there and he did not appear to be at any of the other meetings. Ms Halton-I think he did come here on other occasions. CERTAIN MARITIME INCIDENT CMI 2106 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-I may have missed it-I just wondered what area of Defence he was from. Ms Halton-I am sure we can find that out for you very simply. Senator FAULKNER-Okay. Ms Halton-Yes, he did come on a number of other occasions. But where he was from, precisely, I would not want to be categorical about. We can probably find that out. Senator JACINTA COLLINS-When was the first ship returned? Was that the SIEV5, which is discussed on the next day in the minutes? Ms Halton-I believe that is the case. Senator JACINTA COLLINS-I am following on from your earlier comments that the issue of rescue at sea was discussed in terms of returning ships. Ms Halton-Last time we canvassed the whole process of advice about return, and my memory is that that was the previous week. So the notion that there would be the possibility of return was well known amongst the key players for the entirety of that week. Senator JACINTA COLLINS-Then there is a discussion on the 18th. Was the nature of it that some of these ships that were anticipated would not be suitable candidates for return because of their poor condition? Ms Halton-There was always an understanding in that respect. Again, it is reflected at least somewhere in these notes that whether a vessel was a candidate for return was always a matter for the judgment of the commanding officer of whatever vessel was engaged in that particular activity. The question of seaworthiness was absolutely something which had to be judged operationally by the people who were there at the time. Senator JACINTA COLLINS-Yes, I understand that, but when I was listening to your answer earlier about the discussion of the vessels being in poor condition and the risk of rescue at sea, as I understood it at the time it was, again, akin to the comments about this particular people smuggler not being particularly experienced and that others had stopped smuggling because of the potential for return. But, in fact, none of that occurred until after the 19th. Ms Halton-No, I did not make any comment about people stopping people-smuggling. I think you made that comment. Senator JACINTA COLLINS-Yes, but I am trying to understand the full context of the situation. It may be that I misunderstood your earlier comments as dealing with safety issues that were the result of the response by the people smugglers to the knowledge that ships would be returned to Indonesia-that response being that they sent less seaworthy vessels. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2107 Ms Halton-No, and I think I said to you that I do not think there was any material change in the quality of their vessels; some were good, some were bad. But certainly I think there was a consciousness once there had been an agreement to return vessels if possible; there was certainly a high level of awareness amongst the task force members about safety of life at sea issues. Safety of life at sea was always something which people had at the forefront of their mind. So a more regular discussion of those kinds of issues as boats arrived and the getting of advice from whoever was the commanding officer about whether a vessel was actually robust in terms of return then became part of the more normal modus operandi. Senator JACINTA COLLINS-But this is talking about rescue at sea issues prior to these boats being accepted. Ms Halton-SIEV5 was under way on the 18th. Senator JACINTA COLLINS-I am talking about the comments on the 18th, which relate to the two boats to Christmas Island, the three boats to Ashmore, the assessment of their being in poor condition and the rescue at sea. That is quite independent of anything that a Navy commander would have been assessing. Ms Halton-Absolutely. The point I am trying to make-and possibly I am poor at making the point-is that we tended from that week onwards to take more interest in information about the seaworthiness of vessels. On the 18th SIEV5 was under way, on its return to Indonesia. We all knew that. People in this meeting actively knew that SIEV5 was on its way. Senator JACINTA COLLINS-I thought SIEV5 was on its way on the 19th. Ms Halton-I think it was delivered on the 19th. Senator JACINTA COLLINS-The minutes of the 19th say: ... (SIEV5) reloaded with women and children and proceeding to Roti. Ms Halton-Yes, and I think you will find that women and children were offloaded on the vessel en route. I think they returned to their vessel on the edge of the territorial sea. Senator JACINTA COLLINS-So you are saying that SIEV5 was on its way back on the 18th, although it is not covered in these minutes? Ms Halton-That is my point. The conversation about returns had happened the previous week, and there had been a policy decision taken by the government in that respect. People in this group were very conscious of that decision. People in this group were very conscious of issues in respect of safety of life at sea. I think there was a greater interest in those issues from that time on. Senator JACINTA COLLINS-The final issue in relation to this day that I want to try to clarify a bit further is one of the references to Coastwatch that I alluded to this morning. Ms Halton-Which date are we on? CERTAIN MARITIME INCIDENT CMI 2108 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-The 18th still, `no confirmed sightings by Coastwatch'. Coastwatch was not conducting surveillance at Christmas Island at that point in time; it was Defence. Ms Halton-I cannot comment on the precise words that are written here in terms of the specifics of an individual agency. My belief would be that that reflects advice that none of those surveilling had seen any vessels. Senator JACINTA COLLINS-Yes, and that is consistent with what you said this morning. But what I am trying to understand is that, if on the approaches to Christmas Island and Ashmore Island the principal agency conducting surveillance was Defence, why-as you said a few moments ago-was it Coastwatch that was providing the information to the task force about surveillance? Ms Halton-I cannot answer that. At the end of the day, the advice was coming in from agencies in relation to the responsibilities they had adopted. I think we have just canvassed that there were separate external relationships between a number of these agencies, and there were working arrangements between the officers of those agencies which led them to collectively form views or share information, whichever way you want to describe it. Essentially, we asked reflexively and rhetorically, `Has anybody seen one of these vessels yet? Have we found one?' I think I told you last time that the thing that you could almost guarantee was that as soon as one of the agencies found a vessel there would be a peal of telephones all around the room. So this is just a reflection that a vessel had not been seen. As to the particular reference to Coastwatch, you would have to question the person who wrote those notes. Senator JACINTA COLLINS-What I am trying to sound out, though, is your comment that from this week on, once the decision had been made to look at returning their ships, there was a greater keenness as to the safety of life at sea issue or the seaworthiness of the ships. With this keenness at this stage, I cannot understand from the minutes or from any of the earlier evidence why it was that the principal agency conducting surveillance was not reporting directly to the task force but was coming through Coastwatch. Ms Halton-I cannot answer that other than to say to you that Defence provided relevant briefings as supplements and other things to individual comments made by other agencies in all of those meetings. So, when we went around the table and said what updates there were from particular agencies, they always made their contribution. I cannot comment on the coordination arrangements between them and Coastwatch. Senator JACINTA COLLINS-Do you recall Air Vice Marshal Titheridge ever referring to surveillance matters? Ms Halton-I cannot think of a particular instance off the top of my head. Senator JACINTA COLLINS-I ask this question because, from the minutes of the 18th, it does not even look as though Coastwatch were present. Ms Halton-No, that is true. There were occasions on which, when an agency was not going to be present, they rang prior to a particular meeting. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2109 Senator FAULKNER-So this is all second-hand information from Coastwatch? Ms Halton-I cannot say that. I cannot say whether this particular reference is to a report from someone else or whether, for example, it was from Air Vice Marshal Titheridge. It was certainly a matter that was canvassed at the meeting. If you hang on a second I will check something to see whether I can throw any other light on this. I believe that was something that was said at the meeting but I cannot tell you who it was. Senator FAULKNER-Was that also reported to the Prime Minister? Ms Halton-We are getting the advice about what that particular piece of advice said. We always knew-I cannot say it was within a matter of minutes, but I can say it was within very short order-when a vessel was spotted. As I said to you, when a vessel was seen I think just about every phone in the city went off. In a sense it is probably a bit tautological to say that at that point there was some prospect of 1,200 people arriving but not one vessel had been seen, because had a vessel been seen that vessel would have been referred to. Senator FAULKNER-Yes, but there was this comment in relation to Coastwatch: No confirmed sightings by Coastwatch but multisource information with high confidence level. We know that Coastwatch was not within 1,000 nautical miles of Christmas Island. It was, I think, in the Torres Strait. We know that there was no Coastwatch representative at the task force meeting. We also know about the fate of SIEVX. I wonder what was passed on in the status report to the Prime Minister. Ms Halton-We will find that out shortly and I will be able to tell you. Senator FAULKNER-Admiral Bonser was present at the task force meeting on 20 October. I will check whether he was there on the 19th. Yes, he was there on 19 and 20 October. Ms Halton-I now have this piece of advice, which was departmental advice, not task force advice. It sourced information from the ADF, DIMA, as they were at that point, DFAT and A- G's. It does not source any of this information as being from Coastwatch. It refers to the information in that point: two boats, three boats, 600, 600. Senator FAULKNER-Did you say three boats? Ms Halton-It is almost a carbon copy of that particular point, that first dot point, but it does not duplicate the second dot point. Senator FAULKNER-I see. That information came from DIMA, AFP and DFAT-is that what you said? Ms Halton-In terms of the information about what is coming? Senator FAULKNER-Yes. CERTAIN MARITIME INCIDENT CMI 2110 SENATE-Select Tuesday, 30 July 2002 Ms Halton-The intelligence, yes. Not DFAT. Senator FAULKNER-What were the agencies? Ms Halton-DIMA is my understanding. Senator FAULKNER-Yes. And other agencies? Ms Halton-No, that is not my understanding. Senator FAULKNER-So just the one agency? Ms Halton-On this particular occasion. Again, that is consistent when we know that the strike force is working cooperatively across a series of agencies, and we know they were sharing intelligence in terms of predicting what may or may not be. Senator FAULKNER-On the meeting of the task force's High Level Group on 19 October, can you identify in the notes or minutes of that meeting any reference to SIEVX? Ms Halton-Again, there is no particular boat identified at that point. If you look under `Current state of play', the fifth dot point reads: ... 2000 still linked to boats. Next boat to CI could be 250. More arrivals could come to Ashmore in next five days. That is I think an extension of the point from the earlier day. That is the only boat that is identified separately there, and I do not believe we would be in a position to say that that is this particular vessel. Senator JACINTA COLLINS-We know from what DIMIA said to us that it was their original assessment as to the numbers that would be on that vessel. Ms Halton-Yes. Senator FAULKNER-There are four representatives of the then DIMA: Mr Farmer, Ms Godwin, Mr Killesteyn and Mr McMahon. Ms Halton-That is right. Senator FAULKNER-As well as, of course, Mr Castles from the AFP. Ms Halton-And Admiral Bonser from Coastwatch. Senator FAULKNER-Yes, but, given that you have indicated to us that the source of the information on the 18th was exclusively for the task force from the DIMIA representatives- Ms Halton-I suppose the point I am making to you is that my understanding is that they had a shared view, that they were sharing that information. If you go further down in this particular CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2111 note, the last sentence of the second last dot point says `if third boat arrives'. This is the point about the lack of clarity of our understanding, because it is all `could be' and `if it arrives'. Senator FAULKNER-If we go through to the next meeting on the 20th, again Mr Farmer, Mr Killesteyn and Mr McMahon are there from DIMIA and Mr Castles is there from the AFP. Senator JACINTA COLLINS-If I can just interrupt for a moment, could we also be apprised of what the status report prepared for the PM indicated on the earlier day, the 19th? Ms Halton-This is because SIEV6 had been spotted. SIEV6 was spotted on the 19th. The principal issue that was being canvassed here was in relation to handling of numbers. The point I made earlier is that the principal focus was what we were going to do with these people if they all turned up, and the question of handling the numbers of people concerned is the principal subject of this particular note, and also what is currently at that point happening in respect of SIEV6. Senator JACINTA COLLINS-Is there nothing discussed about the additional accommodation options that might be necessary if there were further arrivals? Ms Halton-Yes, there is. So that is consistent with these notes. Senator JACINTA COLLINS-And at this stage it is still talking about a potential third boat to Christmas Island? Ms Halton-No. Let me just be completely categorical: it talks about an aggregate of numbers. It is about capacity-total numbers that could be accommodated. Senator JACINTA COLLINS-So the minutes on that day were talking still about the possibility of a third boat, which intelligence had been talking about for a little while prior to this date, but the note to the Prime Minister is simply referring to capacity? Ms Halton-Capacity-and SIEV6. Senator JACINTA COLLINS-And no further SIEVs? Ms Halton-The point about capacity is that it is in anticipation of what happens in the event others turn up, but it is not a status report which does an assessment. Senator JACINTA COLLINS-Can you describe that anticipation? Ms Halton-I beg your pardon? Senator JACINTA COLLINS-Can you read for us what the comment was in relation to the anticipation? CERTAIN MARITIME INCIDENT CMI 2112 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No, I cannot read it for you. I do not have authority to do that. What I can tell you is that it talks about Manus, which I think is consistent with some of the stuff in here, and it talks about the transfer of the SIEV4 group from Christmas Island to Manus. Senator JACINTA COLLINS-What does it refer to as the capacity issue for Christmas Island? Ms Halton-The capacity to manage 600 to 700. Senator JACINTA COLLINS-From Sunda? Ms Halton-If necessary. Senator JACINTA COLLINS-We should ask formally for a copy of these documents. We might need to do that directly to PM&C. I appreciate that is not your authority. Ms Halton-Thank you. Senator FAULKNER-The task force met on 20 October, I think at 4 p.m. That is right, isn't it? Ms Halton-That is right. Senator FAULKNER-By that stage, there had been a phone call from the AFP to Coastwatch about the Abu Qussey vessel. Was this issue raised at all on 20 October? Ms Halton-Not that I am aware of. I suppose the point I would make to you is that these notes are still framed in terms of `if it arrives'. There was not-and I think that is reflected here-a categorical piece of information introduced into this meeting that said that it had left. From what I understand you to be saying-and I am not aware of this particular piece of evidence-there is some other conversation about this issue to which I am not privy. If your question is, `Were we told in here about some phone call?' then no. Senator FAULKNER-Colonel Gallagher told the committee- Ms Halton-Sorry, who is Colonel Gallagher? Senator FAULKNER-He is the head of the Australian Theatre Joint Intelligence Centre. I hope I am getting that correct. Senator JACINTA COLLINS-ASTJIC. Senator FAULKNER-ASTJIC, yes. Ms Halton-Who I have never heard of and never met. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2113 Senator FAULKNER-He has been offered up to the committee as one of the witnesses instead of Admiral Gates, because Senator Hill does not want Admiral Gates to come before us. Ms Halton-I suppose I have seen his name as one of the people you have questioned. Senator FAULKNER-Anyway, that is who he is. I am very pleased I could remember that acronym! Ms Halton-How do you say it? Senator FAULKNER-I think it is `Aust-jic', but I stand to be corrected. Is that about right? It is close. I gather that is not quite right. Ms Halton-There is probably a Brisbane versus a Sydney version. Senator FAULKNER-It is better than saying A-S-T-J-I-C, I suspect. CHAIR-You can only get it right if you are wearing a khaki uniform, I think. Ms Halton-There is a bunch of them next door, so maybe we should ask them. Senator FAULKNER-They will be able to tell us. But the point is that Colonel Gallagher informed this committee that the report from the AFP of 20 October was a confirmation that the vessel-in this case, SIEVX-had departed. ASTJIC reported this immediately along its normal reporting line-to all those who receive such intelligence-and this occurred on the morning of 20 October. Let me quote him directly from Hansard on 11 July this year. He states: Once we were advised by Coastwatch on 20 October that the vessel was reported to have departed at a time and from a place, as you have heard in previous testimony, we reported it immediately to all the people who received the normal distribution of intelligence. It is true, isn't it, that the task force-your task force; the task force you chair-met at 4 p.m. on 20 October? Ms Halton-That is correct; but, to be complete, I have never heard of this acronym I cannot pronounce. We have never had, to my knowledge, any communications with them. So if you are suggesting that we were told this- Senator FAULKNER-No. Let us just work through it. Ms Halton-Okay. Senator FAULKNER-There does not appear to be any mention of this Australian Federal Police report in the notes of that meeting. Ms Halton-No. Senator FAULKNER-I think you can confirm that for us, can't you? CERTAIN MARITIME INCIDENT CMI 2114 SENATE-Select Tuesday, 30 July 2002 Ms Halton-That is right. Senator FAULKNER-But it would seem to be credible to suggest, given its significance and the significance that was placed upon the information from organisations like the AFP and Coastwatch and Defence, that that may have happened. As you were chairman of the task force, I am keen to explore that with you. I think you can say to us, can't you, that Mr Castles from the AFP was at that meeting? Ms Halton-That is correct; he was. Senator FAULKNER-There were three representatives from the then Department of Immigration and Multicultural Affairs at the meeting. Ms Halton-That is correct. Senator FAULKNER-And they would have had access to this intelligence from the AFP? Ms Halton-I cannot comment on that because I do not know what the arrangements inside each of those organisations were in terms of the communication of any material that was being passed around amongst duty officers, as to whether or not at the time that they came to that meeting they would have been in possession of it. What I can tell you is that I do not think- and it is consistent with what is reflected here-that there was any direct report of such advice. I have to say to you that these notes, I believe, would reflect that, had it been said, because, when we get to the section on further arrivals, `if arrives' is not a `when arrives'; it is an `if arrives'. I have absolutely no recollection that we were told that a particular vessel had categorically left. That is not consistent with my memory of this meeting, and I think my memory is consistent with the terms in which these notes are drafted. Senator FAULKNER-You can confirm that Rear Admiral Bonser was at the meeting of 20 October? Ms Halton-I can. Senator FAULKNER-Are you aware that he received a phone call that same morning from Federal Agent Pratt of the AFP, who offered Rear Admiral Bonser a personal opinion. Let me quote Rear Admiral Bonser's letter here, so that I do not do anyone a disservice. It states: ... a personal opinion that the vessel may be subject to increased risk due to the numbers reportedly on board. Ms Halton-No, I am not aware of that conversation. Senator FAULKNER-And you do not have any recollection of this matter being discussed at all at the task force? Ms Halton-No, certainly not at that level of detail at all. I cannot speak for those people, but I think the point I made earlier was that there were multiple occasions on which we had been told that vessels had left, and they returned to Indonesia and went through multiple ports. I cannot speak for them, but there is a more than plausible explanation. Our focus in this meeting CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2115 was on accommodating people who were actually turning up and at risk of turning up. I think that point here under `Further arrivals' is acknowledging the likelihood of something, but it is saying `if it arrives'. Senator FAULKNER-But if you are made aware of an AFP report which includes details that a vessel has 400 people on board, that a vessel was `grossly overloaded' and that some people had refused to get on the vessel, do you think such details would have made you or the task force consider this a possible safety of life at sea situation? Ms Halton-I think had that material been provided, yes. But as I have said, and in fact the thing that makes me quite confident about this is, when we actually had read to us the details of the cable-which is noted in here later, after the event; I think it is on the 23rd-there is the material provided about people leaving the vessel. There was not any sense, to my mind, and I have to say I did not think to the minds of my colleagues in the department, that this was a matter that was familiar-that it was something of which we were aware. I have made the point about issues around safety of life at sea. I suppose the point I would make to you is that there is nothing in here which is consistent with them actually having gone through those facts as you have just outlined them. No, I was not aware of them. The point that I would make to you is that we were thinking in the previous days about the numbers of vessels and the total of 600 and the issue about the third vessel, which is back there somewhere or other. In reality I do not know that we were ever apprised of the fact-until after the tragic event-that there was a vessel with 400 likely. We had had the discussion about 250, in that early discussion, and I think it was the three in three scenario that had been painted; the second one being of the order of 250, the total leading to about 600, but the notion of a vessel of 400, and the thing I can say to you quite categorically is if we had had the notion of that number coming all at once it would have set every alarm bell-other than the safety of life at sea alarm bell-ringing, because we had a huge accommodation problem. We were debating bunks, security guards, food and everything else around a very fine margin of having people properly accommodated, so the notion that a vessel that we had been told was likely to be of the order of 250 might all of a sudden have blown out to 400 would have got every alarm bell going in the place. Senator JACINTA COLLINS-Where does the reference to relieving possible overcrowding come from? Ms Halton-Where are you reading from? Senator JACINTA COLLINS-On the 20th under `Further arrivals', at the end of that first dot point. We have the AFP report as the report referring to overcrowding and then we have this reference in the minutes here to overcrowding. If that did not come from the AFP report, I am asking where would it have come from? Ms Halton-That would have been basically using the Arunta to house people temporarily; putting people on the deck of the Arunta. I have already told you that Minister Reith did not like it that we had to leave people on the decks of particular vessels-okay, the Adelaide-and that was one of the issues we were canvassing in the event that we had this- CERTAIN MARITIME INCIDENT CMI 2116 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Further arrivals? Ms Halton-Yes. Senator FAULKNER-I am going to qualify this question by the word `if', but it is, nevertheless, a very important question. If the task force or you, yourself, as the chairman of the task force had identified a possible safety of life at sea situation-and I hear what you say: you say this is not the case; I hear that-but if you or the task force had identified a situation reported at the task force as a possible safety of life at sea situation, would the task force or you as its chairman have behaved any differently? Ms Halton-I think there are two points to make here. Firstly, we did not interfere in the decisions that the relevant line agencies took. As far as I understood it, the declaring of a safety of life at sea issue was a matter, rightly, for the appropriate authority. So Mr Davidson would have alerted his Indonesian colleagues, and I think we canvassed that earlier. This goes back to a conversation we had earlier about a conversation that happened a couple of days later, and that was about whether or not this vessel was on the water heading to Christmas Island, and it goes to that issue about flotsam and relatives. I remember that discussion because there was this interchange about `You tend to get phone calls and you tend to be able to find flotsam,' et cetera. That conversation was not in the context of `We know it is on the water.' The conversation was, `Is it on its way?' `Did it really exist?' It was that kind of speculative conversation. Senator FAULKNER-My question goes to whether the task force acts any differently if you are able to identify such a situation. Ms Halton-I think it is always hard to answer hypothetical questions. I think hypothetical questions are impossible to answer. Senator FAULKNER-I appreciate that. I did note that it is qualified and it is a hypothetical question. It can be answered only if you faced this situation in relation to other incidents. Ms Halton-The things that I would say to you go back to my earlier comments. There was in our minds a concern about the safety of life at sea and making sure that there was no loss of life, and in the inquiries we had about how operations were going-I think I have already given you evidence-that was always basically the first question we asked: was everyone safe, had everyone been accounted for? It was at the forefront of my mind and of my colleagues' minds. We would not have been able to take any action. Would we have questioned people in more detail and asked them what they were doing about it? Yes, I believe we would have. Senator JACINTA COLLINS-Still on the 20th, we also know from the Defence intelligence report that: NORCOM INTSUM- Intelligence summary for NORCOM, I presume- CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2117 assesses there is a high probability of the vessel arriving vic Christmas Island from 21 Oct 01, and that due to its overcrowding and need to maintain stability it may be limited to a slow passage, and therefore a later time of arrival could be expected. That information was not presented to the task force on that day. Ms Halton-No. Senator JACINTA COLLINS-So information from Defence, information from the AFP and information from Coastwatch was not presented to the task force on that day. Ms Halton-I am not privy to what all of that information is. All I can tell you is what I am aware of. In terms of what you described, no, I was not aware of that. Senator JACINTA COLLINS-All I am saying is that the evidence to the committee to date is that this information was the privy of Coastwatch, of the AFP and of Defence, and none of those agencies fed that information into the task force. Ms Halton-There is nothing that I know that is inconsistent with what you have just said. Senator JACINTA COLLINS-Okay. The other issue on this day that I want to clarify is under `further arrivals' and it is the first dot point regarding the second boat expected. That is the one that I am assuming we can say, in retrospect, is SIEVX. Would you concur with that, in retrospect? Ms Halton-I suspect probably. To say anything in this area categorically is, I think, to go too far, but I think on the balance of probabilities, given the three issue, likely. Senator JACINTA COLLINS-You are still talking there about `if arrives' and not reflecting, for instance, the NORCOM assessment of a high probability. Ms Halton-No-other than going back to the earlier days when we had the multisource. On the balance of probabilities, we thought it was more likely than not. Senator JACINTA COLLINS-`Assessment to be made on whether possible to return the larger vessel.' Can you tell us which was the larger vessel? Ms Halton-`Larger vessel' simply meant the one with more people on it. Senator JACINTA COLLINS-So it is not the size of the vessel, it is the numbers on it. Ms Halton-Again, there was a conversation here about safety because, given the accommodation issue, the desire was to take as many people back to keep the pressure on accommodation down. But that was contingent on an assessment about safety. Senator JACINTA COLLINS-But as far as the task force was aware at this stage- because you had not been apprised of this other information-the number of people on this second SIEV was around the same as the number of people on SIEV6. CERTAIN MARITIME INCIDENT CMI 2118 SENATE-Select Tuesday, 30 July 2002 Ms Halton-That is right. Senator JACINTA COLLINS-So there was not a larger vessel? Ms Halton-No, but it had been our experience that intelligence was badly wrong, so until it actually turned up and you physically did a headcount you did not know what you had. So it was the general principle that was being discussed that, if it were possible, you would return the larger, rather than the smaller, of two vessels. Senator JACINTA COLLINS-So you still have the people on SIEV6 at that stage? Ms Halton-That is correct. It is moored off Smith Point. Senator JACINTA COLLINS-So you were waiting to see how many people came in on the second boat, to determine which was the larger, and then you would look at whether it was possible to return the larger? Ms Halton-No, that is not true. SIEV6 was moored at Smith Point. SIEV6 was seaworthy and was in reasonable condition. It was then sabotaged, and the Navy were busy trying to find a mechanic who understood the ins and outs of a particular type of Chinese engine. So the assessment about what was possible also went to whether in fact SIEV6's motors were going. Senator JACINTA COLLINS-So putting aside the seaworthiness issue, the point of this first dot point is that, all other things being equal, if this second ship arrives an assessment will be made between it and SIEV6 as to which was the larger and as to whether the larger could be returned. Ms Halton-Correct. Senator JACINTA COLLINS-It sounds a bit like a lottery. Ms Halton-Yes, it was a bit. Senator JACINTA COLLINS-You get to stay depending on whether you are in the larger ship or not. Ms Halton-It came down to straight pragmatics, I think. Also, if SIEV6's engines had not been going, that would not have been a contest. Senator JACINTA COLLINS-The bottom of this page also refers to `documents circulated', and it is blacked out. I cannot remember whether (a) or (b) referred to security issues. Was that a standard way of depicting whether documents were circulated amongst members of the task force? Ms Halton-We will find out what it was. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2119 Senator JACINTA COLLINS-But in terms of just a notation at the bottom of it saying `documents circulated', was that a standard way? Ms Halton-I think it became more common with this set of notes than perhaps with the earlier sets of notes. They were very often, for example, copies of cables that were circulated and retrieved. You can see these notes are more complete than the earlier sets. Senator FAULKNER-On the task force material of 31 October, I could not find any reference to the vessel described as SIEVX. I just wondered if you could. Ms Halton-No. You will understand that it goes back to our understanding of what is definite, what is likely, what is probable and what is a vague chance. There was an understanding that it was multisource and that something may turn up-it might have been two-and you can see at this point we have already had the conversation about how those people would be accommodated in terms of some of those logistical issues. You can see that the last dot point under SIEV6 says: Plans to be reviewed if further arrivals at Christmas Island ... Again, it goes to the point that certainly at this point in my mind we were not categorically certain that there was anything more in prospect, and you can see that very last point under `other issues': Check Defence P3 is maintaining surveillance ... I suspect that comes from an `Are-you-out-there-looking?' kind of conversation, but at this point issues are in hand. Senator FAULKNER-Understanding that, do you have any recollection of any discussion about the possible fate of the SIEVX vessel or matters relating to the SIEVX vessel at that meeting? Ms Halton-No. Senator FAULKNER-Does that mean that we had a situation where not only was the AFP contact with Coastwatch and other agencies-including DIMA and Defence-which are all represented at that meeting, not canvassed at the People Smuggling Task Force at 4 p.m. on 20 October 2001 but it was not canvassed at the meeting at 5.30 p.m. of Sunday, 21 October 2001 either? Ms Halton-I think that is correct. As I think I have already indicated to you, I did not have any knowledge of that, not only on that Saturday but also on that Sunday. These notes are consistent with my understanding, which is that no-one had anyone categorical knowledge. That goes back to the comments I made last time I appeared here. It is consistent with these notes as written up by the note taker. Senator FAULKNER-So there is no mention of either meeting. CERTAIN MARITIME INCIDENT CMI 2120 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Can I interrupt you for a moment. Ms Halton, the minutes of the 21st refer to you advising the Prime Minister's office. Was that written advice? Ms Halton-No, I think that would have been a telephone call-I would have go back and look at my phone records; I can do that-in terms of where we were up to, particularly in relation to SIEV6. Senator JACINTA COLLINS-Which was that you were waiting for the second one to determine which was the larger of the vessels. Ms Halton-No- Senator JACINTA COLLINS-That was the day before? Ms Halton-No. Please go back and look at what I said. I said very clearly that we were not waiting with SIEV6 to see which one was better. The defence forces were actively working on SIEV6 to get a motor started. Had SIEV6 been ready before anything else happened-as was the case, as it happened-then it got the guernsey. There was no notion of waiting with SIEV6 for something else. In terms of what happened with SIEV6, you will see-and it is reflected in here on the 21st-that there were a range of issues about it: AFP, Customs, fuel rations, bottled water, life jackets, provisioning and all those kinds of logistical issues. My habit, particularly when one of those issues was in play, had been to keep the relevant people informed, which is what I did. Senator JACINTA COLLINS-If we go back to the 20th, the minutes do not refer to a report going to the Prime Minister's office from that date. But it is being discussed on the 20th that there is an anticipated second boat for Christmas Island. The next day that boat is not referred to- Ms Halton-Other than in the generality. Senator JACINTA COLLINS-I am asking whether your report to the Prime Minister's office covered the issue of the second anticipated boat for Christmas Island. Ms Halton-I do not believe so. The reason for that is that, as we have just canvassed, there were a couple of notes to the Prime Minister which went through the aggregate of possible arrivals. In other words, at the outside, we believed the total number we were looking at was 1,200. That issue had been canvassed in writing to the Prime Minister. There was nothing further to add to that. In relation to the point that has been made about a categorical understanding, we did not have that categorical understanding, so the issue on which I would have been providing a factual brief to the Prime Minister's office at this point would have been the progress on SIEV6. Senator JACINTA COLLINS-If no further boat arrived, SIEV6 was the candidate. Ms Halton-Correct. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2121 Senator JACINTA COLLINS-Finally, in relation to this last point-`Check Defence P3 is maintaining surveillance over Christmas Island'-in the minutes of the days following this, I cannot find any feedback on the response to that check. Ms Halton-No, it would have been on an exception basis. Senator JACINTA COLLINS-What does that mean? Ms Halton-It would have been, `We understand that you are out there looking. Can you just check that that is the case.' In the event that that had not been the case, our how expectation was that they would come back and tell us. It is not reflected here that they came back and told us they were not checking. It is consistent with my understanding that, in fact, they were checking. Senator JACINTA COLLINS-Checking? Ms Halton-Surveilling. If we could just go back to the point about the 21st and the advice following the meeting, my phone records show that I had a conversation with both Mr Jordana and Mr Moore-Wilton that evening-which, again, would be consistent with my practise of making the double-barrelled phone call about facts. Senator JACINTA COLLINS-Do you have file notes about what was covered in that conversation? Ms Halton-No, I do not, but, as I said, it would have been consistent with this. Senator JACINTA COLLINS-Do you know if it went to a concern that Defence surveillance might not be being maintained? Ms Halton-I do not believe so. I believe it would have been restricted to the facts in relation to SIEV6. Senator JACINTA COLLINS-At this point in time, what was your understanding of how surveillance was occurring? Ms Halton-I cannot say that we had a detailed, technical or any other precise understanding of how surveillance was occurring, other than that the approaches to Christmas Island and to Ashmore were being thoroughly examined to try and identify vessels on their approaches towards those two destinations. Senator JACINTA COLLINS-So you had no notion at this point in time that they were looking for a particular vessel? Ms Halton-No. Again, what I said I think earlier on today was that our understanding was always that they were actively looking for vessels that might be coming-how do I put this?- that, if we had an anticipated arrival, be it high probability, medium probability or what have you, there was an active process of trying to identify those vessels. CERTAIN MARITIME INCIDENT CMI 2122 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-So you had a view that, rather than just blindly maintaining a routine pattern with no other input, it would be fair to assume that the crews surveilling these regions had the benefit of other intelligence that might lead the task force and others to anticipate arrivals? Ms Halton-I think there are two questions in there. Did I have any notion of the physical manner in which they were looking? No, I cannot say that I ever had that understanding. Did I have a notion that they were categorically looking for things that we thought might be coming down the pipeline? Yes. Senator JACINTA COLLINS-Okay. You would have been surprised to hear, for instance, that intelligence you were aware of was not brought to the attention of the crews surveilling these areas. Ms Halton-A little. Senator FAULKNER-In the task force notes of 22 October, there is a point made-well, a number of points, effectively-about a vessel called SIEV8. Ms Halton-Yes. Senator FAULKNER-Can you confirm that SIEV8 in relation to the notes of the People Smuggling Task Force of 22 October 2001 is, in fact, SIEVX? Ms Halton-I do not know why this vessel in these notes is called SIEV8-I should say that at the outset. As you have already pointed out yourself-and you understand well-the practice was not to name a vessel until it was the next in the chronology, and it was not in these meetings described in that way. What I can assume is that the second vessel that was being anticipated, which I think Senator Collins and I agreed, on balance, you could assume was SIEVX, but we did not understand it to be that. Would I say that the vessel styled here as SIEV8 was the same vessel we were discussing earlier as the second vessel? Yes. Senator FAULKNER-So it is SIEVX? Ms Halton-Which now we know as SIEVX, yes. Senator FAULKNER-But you ticked off these notes, didn't you? Ms Halton-No, no, as I said to you last time, the notes were done as contemporaneous notes by whoever was the note taker. They wrote them up and filed them. They did not come back to me for verification. Senator FAULKNER-Okay. Anyway, in the task force notes of 22 October, the vessel labelled SIEV8 is in fact the Abu Qussey vessel, SIEVX? Ms Halton-We now know that, yes. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2123 Senator FAULKNER-Under that heading `SIEV8', which we know as SIEVX, it says: Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives. Ms Halton-Yes. Senator FAULKNER-Are you able to tell us how that information was transmitted to the task force for reporting and, in this case, for the record of the notes or minutes of the meeting? Ms Halton-Yes. As I indicated earlier there was a conversation between a couple of the agencies, principally DIMIA and Coastwatch, and it was about whether this vessel was genuinely there: whether it was on the water and whether it existed. There was a question about whether it was real. As I have said, this was something of which we were largely observers. We were not party to this because this relates to the technical way that these agencies, I suppose, assess things. I remember the conversation because it was about the advice from DIMIA that people tended to let their relatives in Australia know as they were leaving Indonesia on a vessel. DIMIA's experience had been-and I cannot say what that experience was, but clearly there was some history to this comment-that in the event that a vessel was missing they tended to know about it. I think the comment was that they tended to know about it very quickly because the relatives knew exactly when that vessel was anticipated to arrive at Ashmore, Christmas Island or wherever. Then there was the advice in relation to jetsam. The conversation was along the lines of, `Well, do we think something has happened?' The conversation then turned to the fact that nobody had spotted any jetsam. Senator FAULKNER-I think `flotsam' would have been better. Ms Halton-Sorry. Senator FAULKNER-It is recorded as `jetsam' but flotsam is more accurate. Ms Halton-I am sure you are right, Senator. But in assessing whether there was an issue at sea, on balance the advice seemed to be that if there was a vessel out there in distress there would have been phone calls from relatives and something would have been said. Senator FAULKNER-So, `no reports from relatives' came from DIMA? Ms Halton-Yes. Senator FAULKNER-Do you know where `not spotted yet' and `missing' came from? Ms Halton-I cannot be categorical. The reason I remember precisely that DIMIA were the ones who were talking about the phone calls from relatives was because I remember thinking `ooh'-it was quite a graphic conversation. I would not wish to be categorical about who made that earlier point. Senator FAULKNER-Do you know where `grossly overloaded' came from? CERTAIN MARITIME INCIDENT CMI 2124 SENATE-Select Tuesday, 30 July 2002 Ms Halton-Again, that would have been part of the intelligence. I cannot be categorical about which agency said it. Senator FAULKNER-Was this the first you heard of it? Ms Halton-What, Senator? Senator FAULKNER-This was the first you heard that the vessel we now know as SIEVX was grossly overloaded. Ms Halton-Yes. We had earlier reports about 250. As we understood it in those earlier discussions 250 was not a discussion about `grossly overloaded'. Senator FAULKNER-I will tighten up the question for you. When did the task force first learn that the vessel was grossly overloaded? Ms Halton-In this conversation. Senator FAULKNER-A whole 20 seconds? Ms Halton-Yes. Again, this was in this context: had it left it should have arrived by now. The context was, `Did it leave? Is it really on the water?' There was a conversation about jetsam. You were right, it was flotsam; we could have a conversation about what jetsam is, later. There were no reports from relatives. I would characterise it as a dialogue between the agencies involved in that intelligence process about what they thought the facts of this were. Senator FAULKNER-This sounds like it is a pretty concerning discussion, even from the way it is recorded-it is missing, grossly overloaded, no reports from relatives-so I gather this is a pretty concerning situation at the task force. Ms Halton-It was, absolutely. Senator FAULKNER-What happens as a result of that level of concern? Is there any action that emanates or tasking that emanates from the task force as a result of those concerns? Ms Halton-There was a conversation about safety of life at sea and whether in fact someone should ring AMSA and talk them about this and get them to issue a notice. In fact I think, from memory, Ms Edwards might have reflected part of that conversation to you. My memory is that those agencies who would normally be involved in this process actually thought no, because they thought on balance that the vessel was not on the water and was not in distress. As it happened-and I think we got advice towards the end of this meeting-AMSA had already taken action itself. Senator FAULKNER-Yes. Is that because someone from the task force proactively checks with AMSA? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2125 Ms Halton-Somebody from the task force has a conversation with AMSA. What I cannot tell you is whether contemporaneously someone went off and rang or whether it happened after the meeting itself. My memory is that the view of the people who do this intelligence work was in fact that there was not a safety of life at sea issue. We had some dialogue with AMSA either at the end of this meeting or immediately after this meeting. Again, I cannot tell you whether it was us, PM&C or one of the other agencies who, following the discussion, went and had the dialogue with AMSA-I just cannot be that specific. But, either at the end- Senator JACINTA COLLINS-The AMSA dialogue occurred at 4.37. Ms Halton-Do you know what time this meeting was? Senator JACINTA COLLINS-It is not on here. Ms Halton-I think the point is that, contemporaneously, inquiries were made of AMSA and, contemporaneously, AMSA was issuing a notice. I do have a clear memory, however, that DIMIA and Coastwatch actually did not think-based on that discussion in here-that there was actually a safety of life at sea issue, because they did not believe, in the absence of these bits of evidence, that there had been a vessel out there. Senator FAULKNER-Are you aware that the vessel has sunk before the meeting of the task force on 23 October? The People Smuggling Task Force notes are quite substantial about the sinking on the 23rd. Do you know before that meeting commences that the vessel has sunk? Ms Halton-I think everyone in Australia knew; it was on AM. Senator FAULKNER-That is what I- Ms Halton-Yes. It was on CNN and it was on- Senator FAULKNER-Your task force was at 3.15 p.m. Ms Halton-That is right. Senator FAULKNER-So you were well aware of the situation. Ms Halton-That is right. Senator FAULKNER-Did you learn about the sinking of the vessel from radio reports? Ms Halton-No, I did not. I received a phone call from Shane Castles at 2 a.m. It woke me up. I missed the call, went out and looked to see who it was and returned his call. He told me the barest bones-that he understood there was a report but that a cable would be coming later in the day that a vessel had sunk. That was it. Senator FAULKNER-Literally, that is it? No location, no further detail? CERTAIN MARITIME INCIDENT CMI 2126 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No detail; no nothing. Senator FAULKNER-And the next report you hear about it is a radio report? Ms Halton-On AM. Senator FAULKNER-In the morning. Ms Halton-That is right, the point being that I was told that there was a cable coming and then, of course, that cable was canvassed that afternoon in the task force. It is reflected here. Senator FAULKNER-So the report of the 23rd-the report of the sinking of the vessel we now know as SIEVX-was based on that cable, was it? Ms Halton-Sorry, which report? Senator FAULKNER-In the report of the 23rd there is a more substantial- Ms Halton-In the notes? Senator FAULKNER-Yes, in the notes. Ms Halton-Yes, sorry. I took this down in quite detailed notes. Someone was reading from a cable, and I actually hand wrote in my daybook a whole series of the details. They are completely consistent-in fact, in some cases, they are word for word-with this. The person concerned was reading from a cable, and so my belief is that that is almost an exact quote from details of a cable. Senator FAULKNER-Did that include the advice: `vessel likely to have been in international waters south of Java'? Ms Halton-That was, as I understand it, part of this cable, but I could not be sure of that. Senator FAULKNER-What advice did you, the task force or PM&C provide to the Prime Minister on this? I would be interested in both when advice was provided to the Prime Minister and the content of such advice. Ms Halton-Advice was not provided in terms of a general update on a range of issues until the afternoon of the 24th. Senator FAULKNER-Then are you able to explain to us the basis of Mr Howard stating, in an interview on radio 6PR on 23 October 2001, that the boat, the SIEVX, had sunk not in Australian waters but in Indonesian waters? Ms Halton-No, I am not. Senator FAULKNER-But it was not a report from the task force? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2127 Ms Halton-No, that is right. Senator FAULKNER-You can be categorically sure that it was not an advice from the task force or you? Ms Halton-Yes, I can. Senator FAULKNER-If it was based on advice, it was based on advice from someone else? Ms Halton-Correct. Senator FAULKNER-The Prime Minister, at the announcement of his party's border protection policy at Observation City, Scarborough and Perth on 23 October, again indicated that the vessel sank in Indonesian waters. This advice could not have come from the task force, could it? Ms Halton-No, that is right. You have already made the point, as I understand what you are saying, that those particular occasions were in the morning. The task force met at 3.15 that afternoon; the task force did not provide any advice. Senator FAULKNER-So did the advice that went to the Prime Minister on 24 October canvass where the vessel sank? Ms Halton-It did. What it says is: `boat capsized and sank quickly south of the western end of Java with loss of possibly 352 lives'. Senator FAULKNER-So, with that advice `south of the western end of Java', it could be in Indonesian waters or it could be in international waters? Ms Halton-Yes. Senator FAULKNER-It does not say. Ms Halton-No. But I should be quite clear here: there is a heading here which says `boat sunk in Indonesian waters'. It does not say territorial waters. There had been a conversation about Indonesian safety in its search and rescue zone. That is just a heading. This particular note was based on advice from DFAT, DIMA, DTRS, AG's and Defence. Senator FAULKNER-Are we able to get a copy of that advice? Ms Halton-Again, it is not my gift to provide you with it. Senator FAULKNER-Just quickly go through the agencies that are involved in the formation of that advice again, please. You just mentioned them. Ms Halton-DFAT, DIMA, DTRS, AG's, Defence. CERTAIN MARITIME INCIDENT CMI 2128 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Was that advice done under the auspices of the task force? Ms Halton-That is a minute that I have signed out on the afternoon of the 24th, following discussions both at the meeting and with individual agencies in relation to a range of issues. It is an update. It was not explicitly about the sinking; it was about a range of other issues. Senator FAULKNER-When you say that you have signed it out, have you signed that out as chairman of the task force or as a senior officer of PM&C? What is the status? Ms Halton-No; as a senior officer of the Department of the Prime Minister and Cabinet. Senator FAULKNER-So it is more of a PM&C role as a coordinating department, if you like? Ms Halton-It is an information brief, yes, exactly. As I understand it, as I have said to you, it went in the afternoon. It was signed out on the 24th, and I do not think it went until very late in the day. Senator FAULKNER-Are you aware of any other advices that were received by the Prime Minister on that issue? Ms Halton-No, I am not. Senator FAULKNER-So you cannot throw any light for us on these statements that the Prime Minister made on the 23rd- Ms Halton-I cannot. Senator FAULKNER-when he launched his attack on Mr Beazley? Ms Halton-I have no knowledge. Senator FAULKNER-If you could provide us with a copy of the advice, I am sure we would appreciate it. Please take that on notice. Senator JACINTA COLLINS- Ms Halton, just going back to the advice that was presented to the task force on that day, what was the source of that advice? That cable was from where? Ms Halton-It was from our mission in Indonesia. Senator JACINTA COLLINS-Did that have any mystery headings? Ms Halton-I do not quite understand the point. Senator JACINTA COLLINS-The point I am making is that the content of the message that you indicate was passed on to the Prime Minister was `south of Java'. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2129 Ms Halton-And that is not in the detail. Senator JACINTA COLLINS-But there was a heading in it that you said referred to Indonesian waters. I am asking whether the source of the material that describes the vessel as likely to have been in international waters had any headings or the like to detract from the statement that it was international waters. Ms Halton-I do not have that in front of me. I will have to take that on notice. What I can say to you is: the comment about `south of the western end of Java' was not contained, as I understand it, in the material that was read to us on that afternoon of the 23rd. The point I was making to you about the source of the information that was contained in that minute was that there had been, as there always was-before PM&C sent a brief to the Prime Minister, which was a state of play brief-a canvassing of the individual agencies which were relevant to the particular subject matters. What I cannot tell you-because, whilst I was a signatory to that, I was not the author of it, if you see the distinction I am making-is which agency provided us with the additional detail in relation to south of the western end of Java; but it has come from one of those agencies. Senator FAULKNER-But the original information, you said, was not passed on. Ms Halton-That is correct. Senator FAULKNER-The material that did go from under your signature went to the Prime Minister on the 24th. Ms Halton-In the afternoon. Senator FAULKNER-In the afternoon of the 24th. Are you able to be more precise than that? Ms Halton-We would have to take that on notice, but it was in the afternoon. Senator FAULKNER-Was that particular `information brief'-I think they are the words you have used to describe it-generated out of the task force as a result of your initiative, or was there a request for you to prepare such an information brief and pass that to the Prime Minister? Ms Halton-I think, as we have already acknowledged throughout this process, intermittently updates were provided, founded on what happened in the task force. And, as you know, very often it was acknowledged that there was going to be one-and they are often acknowledged here. My recollection is that, on the afternoon of the 24th, there was not a task force meeting. On this particular occasion, the material that would have been included would have come from a ring around from the officers in Social Policy Division, trying to get the most current state of information in relation to things that were currently on foot: what was happening at Ashmore Reef in terms of SIEV7 and a series of other things that were- Senator FAULKNER-Yes, but you have told us that you did not do this brief to the Prime Minister wearing your hat as chairman of the task force. CERTAIN MARITIME INCIDENT CMI 2130 SENATE-Select Tuesday, 30 July 2002 Ms Halton-That is right- Senator FAULKNER-That is right, isn't it? Ms Halton-because there had not been a task force meeting. Senator FAULKNER-You did this in your role as the then Deputy Secretary of the Department of the Prime Minister and Cabinet. Ms Halton-Correct. Senator FAULKNER-What I am asking is: why did you do that? Was it on your initiative, did someone else request that you do that, or what? Ms Halton-I think it was done as an initiative of the department because there were a series of things that were in play, particularly in terms of `What's happened to the group from SIEV4?' and `What's happening to SIEV6 and SIEV7?'; in terms of making sure people were apprised of the relevant details, that it was considered timely just to provide a factual update. Senator FAULKNER-Who by; you? Ms Halton-My memory is that the division thought it would be timely to do an update and that they proposed we send a note. I thought that was prudent and agreed it. They prepared it, we canvassed it and it was signed and sent. Senator FAULKNER-Who did you canvass it with? Ms Halton-The people in the division. Senator FAULKNER-Was it cleared by Mr Moore-Wilton? Ms Halton-No, it was not. Senator FAULKNER-So he did not know about it? Ms Halton-I will tell you whether he received a copy at the time, which he undoubtedly did. Yes, he did. Senator FAULKNER-What is the explanation for the difference between the information that came in the cable reported in the task force and what is contained within the brief? Ms Halton-The information in the brief, as I have said to you, came from the relevant agencies. In terms of the information about Indonesian waters, it does not say `Indonesian territorial waters'. In terms of the likely location-that is, south of the western end of Java- that material would have been provided by one of the line agencies. Senator FAULKNER-Can you say who? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2131 Ms Halton-I cannot. I would have to go back and ask the authors whether they can clarify which agency it was. Senator FAULKNER-I would appreciate that. Given the information recorded at the task force that the vessel is likely to have been in international waters south of Java, it would be interesting to know on what basis someone came up with a different view. Ms Halton-Yes. We will take that on notice. Senator JACINTA COLLINS-Could you also take on notice providing us with a copy of the original cable, the one that is reported here from the embassy? Ms Halton-We will take that on notice. I have no idea what it is classified. Senator JACINTA COLLINS-And/or seeking that it be declassified so that we can do a comparison. Ms Halton-Yes. Again, I cannot do that, but I will ask Prime Minister and Cabinet to look at the issue. Senator FAULKNER-But, given the significance of this and it is under your signature, did you yourself take any steps to check the accuracy of that information? Ms Halton-Did I ring each of these agencies? No, I did not, because the assurance I was given by my officers was that they had been dealing on a regular basis with all of the agencies that are involved in this. In fact, the habit in Prime Minister and Cabinet is to acknowledge whence this information came. Hence, at the bottom right-hand corner of every brief of this type that goes out, there is a section that says `consultation', and it lists the agencies that are the source of the substance. As we have observed on many occasions in these hearings, Prime Minister and Cabinet is not a line agency. It is not responsible for managing these programs, for getting itself involved in the line of command, and we rely on the advice that is given to us. I categorically was assured that this was the current update in terms of the status in relation to the range of issues that are canvassed here. This particular section is nine lines. Senator FAULKNER-Yes, but it is in conflict with what was said. You have told us that you yourself took responsibility for recording on this occasion the words `vessel likely to have been in international waters south of Java'. Ms Halton-And, as I think you would probably appreciate, the advice that we got as the cable was read to us was that this was a preliminary report from, my memory is, the AFP. I think it says they had had a conversation with a 19-year-old survivor and they were making a very early assessment of the facts in relation to this issue. Certainly I think our understanding was that the agencies concerned had had time to reflect on this issue in a more considered way. The facts were as we understood them-it says `we understand' in this brief-and so we were not there and did not have- Senator FAULKNER-Yes, of course you were not there. But no-one is suggesting for one moment that the 19-year-old Afghani male survivor was responsible for reporting that one CERTAIN MARITIME INCIDENT CMI 2132 SENATE-Select Tuesday, 30 July 2002 fishing vessel rescued 44 people and another rescued five people-four deceased and one survivor-that 41 adults and three children survived, that 352 drowned and that survivors taken to Jakarta were being cared for by IOM at Bogor outside Jakarta. I am sure a survivor did provide some of the information but, quite clearly, a lot of that information is coming from other obviously authoritative sources. Ms Halton-But also sources that were being quizzed almost immediately after this event had happened. When things are moving very quickly-I think we all know this-the facts of things can become confused and sometimes, in retrospect, one discovers the facts-in this particular case it does not even say this is a fact; it says `likely'-and those precise details may change. Senator FAULKNER-Yes, but your People Smuggling Task Force, which met at 3.15 Eastern Standard Time on 23 October, received a report about this vessel likely to have been in international waters south of Java and you personally make a decision to minute that- Ms Halton-No. Senator FAULKNER-because you minuted the full detail of the sinking. Ms Halton-You are putting words into my mouth. What I said to you was contemporaneously to the note taker. I did not write these notes. I did not personally take a decision to minute this-the note taker did. What I said to you was that my handwritten notes of the day are very consistent with this in a number of areas, which makes me think that this is a word for word transcription of what was read, and what was read was direct from the cable. I did not personally take any decision about the recording of this. Senator JACINTA COLLINS-Did you write `international waters' in your notes? Ms Halton-I did not, actually, no. Senator FAULKNER-Prior to this, the Prime Minister announced in Perth that this boat sank in Indonesian waters. Ms Halton-As I have said to you, I do not know what the source of that advice was. It may well be the source of the same advice that we got later but I do not know, it was not discussed with me and I cannot make any comment. Senator FAULKNER-Were you alert to the fact that there was an inconsistency here? Ms Halton-I would have to say to you that, no, we would not have said that there was a particular inconsistency. As much as anything else, our experience of the description of Indonesian waters right throughout this period was, to say the very least, confused. We have the Indonesian search and rescue zone, we have what would have been their contiguous zone if they declared it and then we have their territorial waters. Right throughout this period there was a lack of precision about what the legal definition was. Understand, if you will, that my understanding is that you cannot actually see the land unless you are inside the territorial waters of Indonesia but that there were always issues in respect of the Navy about what would have CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2133 otherwise been declared as Indonesia's contiguous zone, if they had declared it. And then there was the area for which they were responsible for search and rescue-that is, BASARNAS. In my experience, right throughout this period you found that people used all this terminology quite interchangeably. So were we aware there was an inconsistency? I think the short answer is no. Senator FAULKNER-But by this day it was a significant issue in the federal election campaign, wasn't it? Ms Halton-In terms of it being said that this was not an issue for Australia, it was not something for which we had a responsibility. You are quite right-it got a lot of prominence. Senator FAULKNER-Yes, you had Mr Howard saying it was a despicable thing for the Leader of the Opposition, Mr Beazley, to try and score political points and so forth. That was on the morning when your task force was recording in its notes that this sinking occurred in international waters. Ms Halton-You are quite right when you say that the Prime Minister made a comment in the morning. We did not even have a meeting until the afternoon. Senator FAULKNER-Yes. Ms Halton-I have to say to you there was no discussion about any inconsistency between this and anything that might have been said by the Prime Minister. I think, as I have said to you, that that is completely understandable amongst those people who have been party to this process, because-as I have already explained to you-there was vast interchangeability amongst these three pieces of terminology. Senator FAULKNER-Nevertheless, the Prime Minister described Mr Beazley's comments as `desperately despicable' and `an absolutely contemptible contribution'. The point here is that, as you know, the caretaker provisions were applying at this time; you acknowledge that. Ms Halton-Absolutely. Senator FAULKNER-This was well into an election campaign. It was highly politically charged and sensitive-trying to be reasonable about this, most objective people would acknowledge that that was the case. This was front and centre in terms of political debate in Australia in an election campaign on that day. Ms Halton-You understand better than most that the guidelines to witnesses say explicitly that public servants will not comment on matters that are political, and that would be my complete intention. As I have said to you, we will take on notice which of the agencies that were canvassed as part of the construction of this update provided us with that particular piece of information. Senator FAULKNER-It does not sound like there is any information, from what you have read out to us. The words I heard were `south of the western end of Java'. CERTAIN MARITIME INCIDENT CMI 2134 SENATE-Select Tuesday, 30 July 2002 Ms Halton-That is correct. As we have already acknowledged, the comments were in the public arena long before either the task force meeting or indeed the brief. This issue had already been in the public domain for a day and a half at least at the point at which this brief went. I do not know when it was seen by the Prime Minister. If it had been consistent, it would not have been seen by the Prime Minister until some time after the 24th. This information was not the source of the Prime Minister's comments and I have already told you that I cannot tell you what the source of those comments was. Senator FAULKNER-Of course, it was not just on that day, because Mr Howard said it again on the Today show on 29 October. I think you were present for Mr Howard's National Press Club address on 8 November, weren't you? Ms Halton-And Mr Beazley's. Senator FAULKNER-And Mr Beazley's, yes, but you were present for Mr Howard's? Ms Halton-I was; that is right. Senator FAULKNER-He said it there too, didn't he? Ms Halton-That is my memory, yes. Senator FAULKNER-Did anyone think to check? Ms Halton-As I have said to you, there was not seen to be any inconsistency in terms of what was a very initial report and the subsequent advice which we received from agencies. I think, in hindsight, it is a bit like the identification of SIEVX-there is now some level of confusion and it would be fair to say no-one really knows where this was. But agencies that were the source of this information provided, on best endeavours, the information as they understood it. Information is caveated; we understand. Senator FAULKNER-There were no caveats on the task force report of the 23rd, were there? Ms Halton-Other than the word `likely'. Senator FAULKNER-It says: Vessel likely to have been in international waters south of Java. Ms Halton-That is not a categorical statement, to my understanding. I think the word `likely' is a caveat. Senator FAULKNER-Is that what you describe as a caveated statement? Ms Halton-Yes. It does not say, `Vessel was in international waters.' CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2135 Senator FAULKNER-But, when you have talked about the caveats that have applied, it is not the use of qualified language, is it? The actual caveats have previously been put in the task force minutes, haven't they? Ms Halton-There is a difference between a categorical statement and a statement about probability. This is not a categorical statement. Senator FAULKNER-I accept it is not a categorical statement. What I want to know is how that statement can be recorded in your task force minutes at 3.15 on 23 October and how Mr Howard can be making absolutely categorical and unqualified statements-including calling Mr Beazley `despicable' and `contemptible'-when a vessel sank in Indonesian waters. Mr Howard said: ... it sank, I repeat, sunk in Indonesian waters, not in Australian waters. It sunk in Indonesian waters ... There is nothing qualified about that. Senator JACINTA COLLINS-When this report was received at the task force, was there any reporting from you to the Prime Minister's office? Ms Halton-Not that I can recall, no. Senator JACINTA COLLINS-There was no dialogue between you and the Prime Minister's office on this issue between you being woken up at 2 a.m. and when that written report was given on the 24th? Ms Halton-That is a different question. Did I have a conversation in the morning before this meeting with Mr Jordana? Yes, I did. Did I pass on to him any particular information other than-and by this time it was in the public arena-that I had had a phone call to say that there was a cable coming from Shane Castles? That is all I said to him. Senator JACINTA COLLINS-You have had no conversation with the Prime Minister's office regarding where the ship sank, other than that written report on the 24th? Ms Halton-No. Senator JACINTA COLLINS-Did any of the intelligence you saw about the SIEVX include an attempt to ascertain from the harbourmaster whether fishing ships returned to the position where they collected the asylum seekers? Ms Halton-Not that I can recall but I did not see a vast amount of intelligence on this issue. Senator JACINTA COLLINS-You never sought to clarify exactly where the ship had sunk? Ms Halton-The issue of where this vessel sank was not a matter for which we were responsible. We were not asked to provide particular details about it. The fact that we have, in a state of play briefing, swept it up as one of the issues and, based on the advice of the line CERTAIN MARITIME INCIDENT CMI 2136 SENATE-Select Tuesday, 30 July 2002 agencies concerned, provided our current understanding of the facts in the matter is a function of that kind of department and that kind of role. We were never asked in relation to the details of that issue, and as I have said to Senator Faulkner I did not have any dialogue on this issue with the Prime Minister's office other than, as I have just told you, a conversation where I said I had had a phone call from Shane Castles. Senator JACINTA COLLINS-You do not need to repeat that issue. I am trying to ascertain whether there was any work done by the task force to ascertain where the ship had sunk. Ms Halton-No. There was not. Senator JACINTA COLLINS-You said in your comments a moment ago, `It was not our responsibility.' Ms Halton-That is right. Senator JACINTA COLLINS-You said that particularly after the decision was made to attempt to return vessels to Indonesia, safety of life at sea issues became more- Ms Halton-Germane? Senator JACINTA COLLINS-Germane. Ms Halton-Correct. Senator JACINTA COLLINS-Was the task force not alert to the maritime principle that if a vessel or assets are in an area where a safety of life at sea event occurs it is their responsibility to respond to it? Ms Halton-Yes, absolutely. Senator JACINTA COLLINS-If there is the possibility that this ship sank in the surveillance zone of the Orions, isn't it the task force's responsibility to ascertain why that event was not managed? Ms Halton-No, because we were not aware-and as I have said regarding the conversation that we just went through in some detail-that it had sunk in the area of surveillance. On the contrary, the discussion the day previously said that we had not seen any flotsam-I will not say `jetsam'; Senator Faulkner points out rightly that it should be `flotsam'-and there were no reports from relatives. We explicitly had here an observation that nothing had been seen by the surveillers. That did not change. Senator JACINTA COLLINS-And that is the end of the matter, is it? Ms Halton-That did not change. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2137 Senator JACINTA COLLINS-That reads more like, `We didn't want to know,' rather than, `We made an effort to ascertain whether this might have been the case.' Ms Halton-Frankly, I think that is deeply offensive, Senator Collins. Senator JACINTA COLLINS-You can have it as offensive as you like. I think this whole incident is offensive. The notion that the task force had no responsibility to ascertain whether this ship had been within the Australian surveillance zone is offensive. Ms Halton-Why? Senator JACINTA COLLINS-Why! Ms Halton-At the end of the day, the surveillance was being undertaken under Operation Relex, which was not the responsibility of this task force. As we keep going over and over again, this task force was responsible for dealing with the issues about when they actually hit the edge of the contiguous zone and the surveillance that was occurring under Operation Relex. Explicitly and deliberately, the task force was not part of the line command arrangements; we did not insert ourselves in those arrangements. The surveillance was a matter for Defence and Coastwatch operating in conjunction. At the end of the day, our understanding had been that this vessel had sunk quite close to Indonesia. I do not think the non-Defence members of this task force in fact had an explicit understanding of exactly how close to Indonesia there was surveillance. We have all read with great interest the maps that actually show what was going on at the time; that was not shown to us at the time, and the notion that we should suddenly take responsibility for something which was not within our remit is unreasonable. Senator JACINTA COLLINS-Okay, let us go back to what is reasonable then. What appears to be reasonable is the assumption that these were issues within your purview, if your minutes indicate that you are checking to see if Defence P3 is maintaining surveillance over Christmas Island. Ms Halton-Over Christmas Island and I think we would agree, Senator, that if you look at the map, with respect to the gap between Christmas Island and Indonesia, there is quite a big difference. Senator JACINTA COLLINS-So the comment here under `Other issues' only pertains to the area in the immediate vicinity of Christmas Island? It is not related to what was happening with SIEVX? Ms Halton-Our understanding is that they were surveilling on the approach to Christmas Island. As I have said to you before, I did not understand-and I would be very surprised if my colleagues understood-until I saw the maps exactly how close to Indonesia they were going. I was actually very surprised when I saw the maps. Senator JACINTA COLLINS-So they had not been part of the earlier maps that you had been shown by Coastwatch-the multicoloured ones you referred to earlier? CERTAIN MARITIME INCIDENT CMI 2138 SENATE-Select Tuesday, 30 July 2002 Ms Halton-No. If you listened to what I said, the map showed Coastwatch's possible routes; it had nothing on it which actually showed surveillance areas. It showed lines about possible routes for vessels to sail on. Senator JACINTA COLLINS-Yes. How far did those lines extend? Ms Halton-The lines extended from Indonesia to a variety of places. Senator JACINTA COLLINS-Are you telling me that, as the head of the task force, you had no understanding until around 23 October that Defence was surveilling up to 30 nautical miles from Indonesia? Ms Halton-No. You did not listen to what I said; what I said was that until the maps were published in whichever newspaper they were published in-I think they were on the front page of the Weekend Australian a few weeks ago-we did not know that they were actually physically that close to Indonesia. Our understanding was that they were surveilling the approach routes and that we have the territorial sea and the contiguous zone and space beyond that, but we did not know that they were physically that close to Indonesia. Senator JACINTA COLLINS-What did you think happened to these ships that were returned to Indonesia once they got past the contiguous zone? They were out on their own, were they? You weren't watching to see that they maintained seaworthiness on their approach back to Indonesia? Ms Halton-The vessel that deposited them did maintain visual contact with those vessels. Senator JACINTA COLLINS-So the surveillance was going to the Indonesian coast? Ms Halton-That was the vessel, not aeroplanes-you are talking about aeroplanes. In terms of the vessel that returned a vessel to Indonesia, yes, they kept an eye on what had happened. Senator JACINTA COLLINS-I was actually talking about surveillance more generally. Are you aware of any satellite surveillance? Ms Halton-No. Senator JACINTA COLLINS-Can you say categorically there was no satellite surveillance or that you are just not aware? Ms Halton-I am not aware. We were not in the chain on Operation Relex. Senator JACINTA COLLINS-You were not in the chain of Operation Relex, but you did have a concern about the safety of life at sea issues in relation to people who were approaching Australia on these ships? Ms Halton-That is correct. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2139 Senator JACINTA COLLINS-But in many senses there were issues that were not your responsibility? Ms Halton-That is correct. Senator JACINTA COLLINS-So, even though right through these minutes we have references to issues that were not your responsibility, it was not your responsibility? Ms Halton-Senator, this group was formed to manage unauthorised arrivals once they arrived in Australia or when they were on the edge of the contiguous zone. You have had hours of evidence on Operation Relex and on the fact that Operation Relex was an operation of the defence department. Operation Relex was not something for which we were responsible or on which we inserted ourselves. In terms of the surveillance, I think we have already canvassed here today in some detail the fact that our understanding was that they were looking, but we did not have the details of who or how. We had an understanding in relation to them looking at the approach routes to Christmas Island and to Ashmore. As I have just said to you, we had no understanding that they were actually that close to Indonesia. We did not need to have that understanding; it was not our responsibility. It was that of Operation Relex. Senator JACINTA COLLINS-So the safety of life at sea issues that the task force has responsibility for, as far as you are concerned, are asylum seekers once they reach the contiguous zone-otherwise, it is not your responsibility? Ms Halton-Safety of life at sea was relevant to what we were doing in relation to the things for which we were responsible. We just had the conversation about the fact that this discussion led then to a discussion with AMSA about that particular vessel. Yes, it was my expectation that in the intelligence context, if those people had particular issues, they would be raising those with the other agencies as appropriate. That is a longstanding and existing arrangement between agencies. We did not take over running every part of government; on the contrary. As I keep saying, we were not taking decisions. There was a sharing of information here. Decisions were taken either by ministers or by line agencies under delegated authority. Senator JACINTA COLLINS-Then whose responsibility do you believe it is to ascertain whether this ship sank in regions where we were conducting comprehensive surveillance? Ms Halton-It seems to me that is a question that should be put to Defence. Senator JACINTA COLLINS-You think it is a Defence issue? Ms Halton-On the question of whether they were surveilling an area where the vessel may have sunk or indeed did sink, my understanding-I only know this from what I read in the press-is that there is still a lack of clarity about this particular issue. As I keep saying, the issue of surveillance was part of Operation Relex. That was a Defence initiative; it was under the aegis and the authority and the command of the Chief of the Defence Force. The Chief of the Defence Force, I can tell you right now, did not report to me. He had a very strong view about his independence in this area. CERTAIN MARITIME INCIDENT CMI 2140 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Yes. As you say, there is a lack of clarity, except in the reports that the Prime Minister made about the incident. Ms Halton-As I have just explained to you and Senator Faulkner, I did not have any detail other than one phone call from Shane Castles at two in the morning to say it had occurred and a cable was coming, and the cable was duly read in the afternoon. The fact of that phone call was passed on. There was nothing else that we were aware of to pass on, and we did not pass anything else on, because we were not in a position to do so. As to the source of those comments, I do not know. Senator JACINTA COLLINS-You never identified the inconsistency between the reference to international waters in these notes based on that cable and the document that you put your name to on the 24th that went to the Prime Minister's office under the heading `Indonesian waters'. Ms Halton-As I have said to you and as I have said to Senator Faulkner on a couple of occasions-in fact, probably more than 10-these minutes, these contemporaneous notes, were taken by a note taker who then typed them up and stuck them on a file. They did not bring them back to me. You just asked me what I had written in my daybook. As I have said to you, my handwritten note did not include that particular sentence. As I have also said to you- Senator JACINTA COLLINS-But what about the cable itself? Did the cable refer to international waters? Ms Halton-I do not know. I did not see the cable. We have said we will look at that for you on notice. Senator JACINTA COLLINS-That is pretty germane. You said just a moment ago that the discussion that occurred at the task force meeting on 22 October was the basis for the alert sent to AMSA. What time was the meeting of the People Smuggling Task Force on 22 October? Ms Halton-I think we have agreed it was in the afternoon. I do not have that in front of me. I do not know. We would have to take that on notice. I do not have it here. Senator JACINTA COLLINS-Rather than your assertion a moment ago, it would be very useful, because the alert to AMSA, from an earlier discussion, went independently of the task force. Ms Halton-Yes, that is what I said to you. I said there was a phone call to AMSA, and while we had been meeting AMSA had independently sent out an alert. Senator JACINTA COLLINS-I misheard you, then. I thought I heard you say that this discussion led to that alert. Ms Halton-No. What I said was it led to a phone call to AMSA. I did not say it led to the alert from AMSA. My understanding is that AMSA actually issued an alert while the meeting was in progress. I believe the meeting was in the afternoon. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2141 Senator JACINTA COLLINS-That is right. So this discussion did not lead to the phone call to AMSA? It had already occurred? Ms Halton-No, the discussion led to the phone call to AMSA. The phone call to AMSA discovered that they had issued an alert. Senator JACINTA COLLINS-Do you mean a second phone call to AMSA, not the original phone call to AMSA that led to the alert being issued? Ms Halton-No. What I said to you was this: there was a discussion at the meeting. Either at the end of the meeting or immediately after the meeting, there was a phone call to AMSA. That phone call led to the information that AMSA, while the meeting had been in play, had already issued an alert. Senator JACINTA COLLINS-That is right. I am just clarifying that you are not claiming that the result of this discussion led to AMSA issuing that alert. It had already been done. Ms Halton-That is right. The point that I was making to you was that the phone call to AMSA occurred notwithstanding the advice of the agencies in the meeting that there probably was not an issue here-to wit, the thing we have just canvassed at length, about phone calls et cetera. There was a phone call to AMSA which, for whatever reason it was originally occurring, then became redundant, because they told the rest of the world-the people at the meeting et cetera-that there had already been an alert. Senator JACINTA COLLINS-So you do not know why the original phone call to AMSA occurred? Ms Halton-My memory is that the phone call to AMSA occurred from Coastwatch. The Coastwatch officer-this is my memory and I cannot confirm this-stood up and said he would ring AMSA. He then came back and said, `They have already issued an alert.' Senator JACINTA COLLINS-So it was not out of a more general concern from the task force that some action should be taken about this vessel, about which the minutes say: Not spotted yet, missing, grossly overloaded, no jetsam spotted, no reports from relatives. Ms Halton-No. I think that, following on from that discussion, there was a concern that there should be a dialogue with AMSA and so that Coastwatch-AMSA conversation occurred. It became a redundancy, because they told us that they had issued an alert. Senator JACINTA COLLINS-So it was an agreed action? It was not just something that the Coastwatch officer stood up and said he was going to do? Ms Halton-I think there was an agreement that someone should ring AMSA. I think the basis of the discussion was that there was not necessarily a need for an alert, because the intelligence people thought that there was not likely to be an issue. Nonetheless, there was a phone call to AMSA. The phone call to AMSA then elucidated the fact that an alert had already been issued. CERTAIN MARITIME INCIDENT CMI 2142 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Did this discussion, where the `grossly overloaded' concept was introduced to the task force, deal with why there had been a two-day delay from when that information was first received by agencies participating in the task force? Ms Halton-There was no canvassing of the fact that there had been a delay, so there was no conversation about why there had been a delay. Senator JACINTA COLLINS-So, even though DIMA intelligence accepts that there was a two-day delay that they cannot explain, this issue was not canvassed at the task force? Ms Halton-No. There was no statement-I think we have canvassed this already-that this information had been with several agencies before that conversation. Senator JACINTA COLLINS-I am not sure that we have covered that, but you might have covered it with Senator Faulkner. Proceedings suspended from 4.23 p.m. to 4.38 p.m. CHAIR-Senator Collins, before the break you were in full flight. Senator JACINTA COLLINS-I have pretty much concluded. Thank you, Chair. CHAIR-You have landed, have you? Senator JACINTA COLLINS-I have. Senator FAULKNER-I know that Ms Halton has some other commitments, so we should try and finish as quickly as we can. I have one or two other questions, but I will place them on notice. Ms Halton-Let us try and do them. Senator FAULKNER-No, I will try and not do them at all. It will be easier, I think. Ms Halton-That would suit me! Could I just go back to the question that was asked earlier about the `blank' document circulated. Having consulted with colleagues, we believe that the `blank' is in reference to a place, so it is in relation to a matter that was being canvassed. CHAIR-I will come back to Senator Faulkner and Senator Collins to see if there are any follow-up questions on that piece of information. I will just ask you to conclude from my point of view. I know you have told us this before, but can you tell us on how many occasions over the period 7 October to 7 November, which I think was the day on which the Prime Minister appeared before the National Press Club, you had a telephone conversation or a personal conversation with the then Minister for Defence, Mr Reith? Ms Halton-I would have to go through the phone records and count. It would be on less than the fingers of one hand. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2143 CHAIR-Yes, there were not many. Ms Halton-No, and always at his initiation, not at mine. CHAIR-That is to say he rang you? Ms Halton-Correct. Or I got a message that I was to speak to him. CHAIR-Whereupon you eventually returned the call. Ms Halton-I would say probably three. CHAIR-Probably three? Ms Halton-Three conversations. CHAIR-Can you place them on the calendar between 7 October and 7 November? I am not going to hold you to the exact day-I am happy to say that it is subject to confirmation. Ms Halton-The first of the three that I recall-and I cannot tell you what dates these were without going back and looking at the documents-was a conversation we had in relation to the unloading of the Manoora. As I think I told you, I was actually in this room chairing a meeting and I think I was visited by a member of Minister Reith's staff who instructed that I was to attend his office. Senator JACINTA COLLINS-Was it Mr Scrafton? Ms Halton-No, it was one of the female staff. I said that I was chairing a meeting and would be delighted to attend his office when I found an appropriate moment for a tea break. I think I managed that some 15 minutes later. The conversation-and I think we canvassed this last time-related to my view on appropriate procedures for negotiating with, discussing with and finding some accommodation with the people on the Manoora about their unloading, and to a difference of view I had with Air Vice Marshal Titheridge-and possibly the entire Defence Force-about what action would be appropriate. That was conversation one of the three that I recall, but do not hold me to the chronology here. The second was a phone call from Minister Reith about the unloading of the Manoora. We had some discussion about his decision that it should happen and the basis on which it should happen. The third was the one we have canvassed here this afternoon regarding his desire that I facilitate the unloading of the Adelaide, which was at that point standing just off-at the dock of, I think-Christmas Island. As we canvassed here earlier today, the issue there was that the accommodation arrangements for those people were not yet finalised. I think I said to you that the conversation was a tiny bit testy. CHAIR-Yes. That was a telephone conversation? CERTAIN MARITIME INCIDENT CMI 2144 SENATE-Select Tuesday, 30 July 2002 Ms Halton-Yes. That was the one in which the sort of postscript to the conversation was, `And by the way, I have just done a media interview and I have told them there is a video,' which led to all that other business. Those are the three that I recall. CHAIR-Can you place these conversations from a date point of view? Ms Halton-Clearly, the one in relation to the video et cetera was on 10 October. In terms of the unloading of the Manoora, it gets a little more difficult. We can find precisely the date. My memory is that it would have been at the very end of September. One was in the middle of the week-so I think it was the last week of September-and one was on the weekend. If I am right, 30 September was probably a Sunday. So the phone call would have been on the Sunday-whatever that Sunday was-and being asked to visit Minister Reith's office was in the middle of the preceding week. CHAIR-So when do you think the third contact was-the telephone conversation when you were talking about facilitating the unloading of the Adelaide? Ms Halton-I know it was on 10 October. CHAIR-And the other two- Ms Halton-They preceded that. CHAIR-And they were in September, so they were ahead of the SIEV4. Ms Halton-Yes. CHAIR-So what you are saying is that between 7 October and 7 November- Ms Halton-I am sorry, I see your point. I think there was only one in that period. CHAIR-There was only one in that period? Ms Halton-I am sorry, yes. CHAIR-So that was the `testy' telephone conversation-if I can characterise it that way- about whether you could facilitate the unloading of the Adelaide? Ms Halton-That is right. That is my memory. CHAIR-In your clear recollection-I am not trying to lead you here; I am just seeking confirmation-that was 10 October? Ms Halton-I know it was on 10 October. That is the day when I walked in the office at a quarter to five and the meeting started at 5 o'clock. I spoke to him almost immediately I walked in, and Ms Edwards walked in halfway through the conversation. That is that precise phone call. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2145 CHAIR-Did he ask you anything about the `children overboard'? Ms Halton-Did he ask me? No. This is the conversation where he was keen to have the Adelaide unloaded. There were people on board, and he did not want them on board; he wanted them accommodated on Christmas Island. He was aware that the task force was trying to accommodate and coordinate the provision of appropriate provisions-accommodation, security, food, all of the above-to those people, and he wanted that expedited. That was what the conversation was about. He said almost as a postscript at the end of the conversation, `Oh, by the way, I've just given this media interview,' to which I thought, `Yes, right,' and he said, `I've told the media that there is a video of this'-that is, the `children overboard'. He did not ask me anything about it; he was the one who volunteered- CHAIR-He dropped it into the conversation. Ms Halton-He volunteered it at the end of the conversation. When we had the earlier conversation about Ms Edwards's starting point in terms of the conversation and my starting point in the conversation, that is why I said that particular instance sticks in my mind so vividly-because there had never been any suggestion that I had heard of that there was a video. As I said last time we canvassed this and in detail this afternoon, I then made a series of phone calls to actually ascertain whether this was correct-the first of which was to Air Vice Marshal Titheridge who said, `I know nothing about it.' CHAIR-Would you expect in the normal course that the minister would ring you about an event such as the unloading of the Adelaide? Ms Halton-To the extent that there was some tension between the competing objectives here-and I had been saying that I did not think it prudent that the Adelaide be unloaded, because there was simply no place to put these people and they could not just be herded onto the dock; they had to be appropriately accommodated with beds, food et cetera. If I was seen as being obstructive, that might well have been the source of the phone call. I think we were trying to balance all of those considerations. CHAIR-The question about the unloading of the Adelaide, though, had been presented to you by Defence at an earlier point. This was not the first time- Ms Halton-No, we had had the rounds of the kitchen table on the unloading of the Adelaide over a couple of days. CHAIR-Am I right to assume that it rose through the hierarchy of more senior people and then more senior people talking to you about it? Ms Halton-I think `escalate' would be the appropriate word. CHAIR-Yes, that would be an appropriate word. So it escalated through the hierarchy? Ms Halton-Yes. CERTAIN MARITIME INCIDENT CMI 2146 SENATE-Select Tuesday, 30 July 2002 CHAIR-Until it finally got to the minister ringing you? Ms Halton-Yes. CHAIR-You were not an officer of his department. What is the normal course if a minister rings a PM&C official and makes a direct request? Ms Halton-PM&C is a little unusual. CHAIR-I know that. Ms Halton-In my experience in that agency-and this is certainly not an experience in line agencies-there were occasions on which ministers did make contact with senior officers in that particular department. I have to say that, every time I had one of those, my immediate response was to tell Mr Moore-Wilton about it. I have to say that it was not unheard of prior to this whole business. Other than, perhaps, peripheral conversation in the cabinet room when I was note- taking I had not ever had any dealings with Minister Reith. CHAIR-So it was not surprising to you, though, that he had rung you on this issue. Ms Halton-I cannot say that I was anticipating his call but, when it happened, I do not know that I felt any particular surprise. When you have an issue about which there is a disagreement, usually that disagreement vents itself in some way, be it through a direct call or be it to somebody else. It did not surprise me that the issue was raised but I was not expecting a phone call from Minister Reith, if that is what you are saying. Senator JACINTA COLLINS-Ms Halton, what was the nature of the minister's concern about these people still being on the Adelaide, and I think there was a later one that you referred to earlier today? Ms Halton-He wanted his boat back. Senator JACINTA COLLINS-Did that same concern apply to whether the people got on his boat in the first place? Ms Halton-I think there was, rightly, some reluctance among naval personnel in that there might have been damage to their vessels. In retrospect I do not think in these particular cases, where people were accommodated on the various decks, that was the case. But there was some concern that it might be the case. Senator JACINTA COLLINS-I am asking whether that concern came from the minister. Ms Halton-No, not that I can recall. Senator JACINTA COLLINS-In the cases you were talking about-for instance, the Arunta accommodating people-if there was an overcrowding problem- CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2147 Ms Halton-I do not think that discussion went any further than the task force. That discussion was about scenarios: what if and how might we cope. We never got into the situation; therefore it never became a live proposition. Senator JACINTA COLLINS-So Minister Reith wanted his boat back. Ms Halton-Yes. I really think that is the right way to describe it: he wanted his boat back now. CHAIR-I think the Navy would probably say his `ship' back. Ms Halton-I am sorry. I think I said earlier that I always get boat versus ship wrong. CHAIR-It may well be that Minister Reith called it a boat; that may be true. You wanted to give it back, didn't you, in the sense that you wanted the problem resolved? Ms Halton-Absolutely. Certainly our ambition was to expedite the arrangements so that people could be appropriately accommodated as quickly as possible. CHAIR-Were there any expected new arrivals of SIEVs at that time? Was there any urgency to put another boat into the frontier? Was that the pressure? Ms Halton-There was always a concern that there might be something we were not aware of. We had the conversation earlier about the surveillance and whether or not it would identify things before they were on our doorstep. There was a concern that naval vessels be deployed on surveillance, in addition to aerial surveillance. I think you could say there was a general principle that vessels should not have been tied up at Christmas Island. CHAIR-Did the boat go back- Ms Halton-Ship. CHAIR-I am quoting Minister Reith. Did the boat go back any quicker because of his intervention? Ms Halton-No. CHAIR-Could it conceivably have gone back any quicker because of his intervention? Ms Halton-The things that were constraints before the intervention were the same. CHAIR-So it was not likely that, unless the problem had been solved, a bit more pressure on you was likely to yield a result. If I can put it in this way, you were snookered by the circumstances. Ms Halton-We were doing everything we could to resolve the circumstances, but there was a logistical constraint. But I would suggest that the detail of that logistical constraint may not CERTAIN MARITIME INCIDENT CMI 2148 SENATE-Select Tuesday, 30 July 2002 have been brought to Minister Reith's attention. I do recall giving him some chapter and verse on what those logistical constraints were. I seem to recall that one of the logistical constraints was whether or not Defence could assist us in moving some things and I think that perhaps following that conversation some things were moved. CHAIR-So it surprised you. How do you characterise your action when at the conclusion of the `can I have my ship back' conversation he dropped this question about the children overboard. Ms Halton-It did. CHAIR-How did he introduce it? Was it casually or earnestly? Did it follow naturally? Did he move gear into a new part of the conversation? I am just asking you to characterise how it got introduced. Ms Halton-The point he was making was that he was being asked questions about what was happening to those people and the vessel. That led him to say, `I have just given a media conference.' I took him to be saying that he was being asked about what was going to happen to those people who were on the deck. CHAIR-Would it be possible that he was saying, `I've just had a media conference, and I would like a bit more information to bolster those things that I've told the media?' Ms Halton-No, absolutely not. There was no sense of that. The conversation was principally around getting the Adelaide back and the questions he was being asked about when those people were going to be brought ashore. That was an issue of some considerable interest. He said in that context-that is, the context of being asked those questions-`I have just given a media conference.' At the end of that, it was a kind of afterthought. That was the way I interpreted it. He was not asking me for any information. This was a `being spoken to' conversation. I gave him certain facts about the constraints in relation to the unloading of the Adelaide. The part of the conversation which went to what he told me about what he had just said in public was certainly not a request to me for information, for confirmation or for anything else. He was telling me what he had just put into the public domain. CHAIR-He was informing you of what he had said but not seeking from you any confirmation or support? Ms Halton-Correct. CHAIR-Nor did he ask you to obtain any new information to back what his assertion was? Ms Halton-No, he did not. CHAIR-Did he in any way indicate that he considered that he needed further information? Ms Halton-No, he did not. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2149 CHAIR-So he was just putting you on notice that this is what he said so that you knew? Ms Halton-Yes. Senator JACINTA COLLINS-Was he concerned that these people on the Adelaide were being humanised? Ms Halton-He never raised that term or anything about that with me. Senator JACINTA COLLINS-Not on this occasion nor on any other occasion? Ms Halton-No. CHAIR-Have you spoken directly to the Prime Minister about these events? Ms Halton-No. CHAIR-In the lead-up to the Prime Minister's Press Club appearance on 7 November, you spoke on a couple of occasions to Mr Jordana. Did he seek from you directly any corroboration of the view that children were thrown overboard? Ms Halton-No. I said last time that, in relation to the particular material that he asked for, he actually made that request, as I understand it, to Ms Bryant. He did not make that request to me. I became aware of that request from Ms Bryant's advice to me and not from him. He did not ask me for corroboration, evidence, particular documents or any advice in that respect. CHAIR-Were you aware at that stage of the imbroglio over the photographs? Ms Halton-As I said last time, the point at which I became aware of the imbroglio over the photographs was when I got that phone call from Ms Bryant. As I said to you last time, in respect of the photographs-and I went through this in a huge amount of detail-she rang me at 6.23 in the evening. We are already aware of the substance of that conversation, my reaction to it and what I then did. I said to you last time that, when I rang Miles, he said, `That was in the paper today'-those are not the precise words. I then went and found the article, and I saw that the issue was addressed and there was an explicit response. As I said last time, I was passing on the information as it had literally come to me-again, tearoom gossip has been canvassed at length-and I basically told him exactly what I had been told by Ms Bryant. CHAIR-I want to look at the behaviour of Mr Jordana at this point. We do not have the advantage of actually talking to Mr Jordana directly, because he has been barred from appearing at our inquiry by a decision, apparently, of the cabinet-although to the best of my knowledge we have never been shown the precise decision of the cabinet, we are advised there was one that prevents him from appearing. But it seems, as one can best reconstruct the events, that he was trawling around through the various agencies and people who ought to know for confirmation or otherwise of children being thrown overboard-and the photos which did not depict that but which had been published under the pretence that they did-and any evidence whatsoever so he could properly brief the Prime Minister, as he would be required to do, on a sensitive matter that CERTAIN MARITIME INCIDENT CMI 2150 SENATE-Select Tuesday, 30 July 2002 may arise at the National Press Club speech. So Mr Jordana, at that time, never spoke to you directly about any of these things? Ms Halton-No; and nor did he seek my advice. Can I say to you that that does not surprise me because, to my mind-and I know this is an issue Senator Faulkner might dispute-we were not the original source. There is that line in the paper; the paper went much later on that evening and, as you well know, my phone call to Mr Jordana on the day-the 7th of October-was not until the middle of the afternoon; long since this issue had been in the public domain. On the notion that he would think of asking us in this period to provide any confirmation: if I were him, I would not have asked us either. I would have gone back to the original sources. We know from Ms Bryant that he asked for a couple of the sit reps. As you know, in the process of going to dig those sit reps out, that is where she came across the tearoom gossip-and that has been canvassed at some length. CHAIR-I think our hearing is probably satisfied that it was not correctly characterised as tearoom gossip at all, but I understand the reports that you are referring to. Ms Halton-That is right. And in the information that was available to us-on the social policy side-that is how it was characterised to us internally and that is therefore how we characterised it externally. CHAIR-In a way, you have provided a justification for Mr Jordana not talking to you. Here is someone canvassing the bureaucracy to find information necessary to properly brief the Prime Minister, at the last major appearance before an election in which this question was likely to be asked, and you are the chairperson of the task force that is coordinating all this activity. It seems to me odd, to say the least, that in a desperate search for information no-one bothers to ask you. Ms Halton-He has gone to my officials, because what he has asked for are some documents, and in terms of getting access to those documents, my officials-who would either have them on their own files or could readily access them-would be the place I would go too. As an executive coordinator, I do not keep a bank of files in my office; the files are all held in the division. He did not ask for confirmation. In fact he did not even say, as I understand it-but Ms Bryant is the person who had the conversation-precisely what it was he was doing; he simply asked for a couple of documents, which is what she reported to me. CHAIR-I would have thought a conversation that goes something like: `Hello, Jane. Do you know anything about this? I am on the track of this type of information.' Ms Halton-There was no such conversation. None. CHAIR-Maybe he was not searching for any information that was inconvenient to the thesis that children were thrown overboard. Ms Halton-I do not know what he was searching for because I did not discuss it with him, so I cannot comment. CHAIR-He never raised it with you? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2151 Ms Halton-No. This goes back to the conversation we had last time: the fact that he was asking us for material, we now know from evidence-and I have to say I do not think my officers knew this at the time; I certainly did not-that he asked other agencies for material, for example the ONA report. The ONA report was seen by us in early October. I have to say that all of the people inside the bureaucracy who read ONA reports think that they are authoritative sources. We all read it at the time and thought, `Yeah, right.' But that would not be something that you would come to us seeking, because we are not the author of it. We are also not the kind of place to whom you would say, `I want this, that and the other.' You would go to the original agency-which, I understand from the evidence that was given, is what happened. CHAIR-I understand what you are saying. You are repeating the same proposition. The proposition I am putting is that you are the point person here. You are the intersection of all this information. People work under pressure in your department, and people on the Prime Minister's staff are usually under intense pressure. In logical circumstances, it seems to me, you would ring a key person and ask, `Where do I look?' `Can you give us a hand?' or `What have you heard?' but that does not happen- Ms Halton-No, and that was not his style. CHAIR-I understand your point about sources but, in the pressure climate necessary to get these things properly bedded down, there is the alternative view, and maybe it is just open to conclude that he really did not want to find any information that disrupted the view that he had briefed the Prime Minister on. Ms Halton-You are asking me to comment on speculation, and I cannot do that. All I can say to you is that his habit was to deal not just with me, because quite frankly you could not always get me on particular issues. He had a habit of dealing with not only me. Again, you have taken evidence from Ms Edwards, I believe, that he dealt with her bilaterally, and from Ms Bryant that he dealt with her. On this particular occasion, the request went to Ms Bryant. She properly informed me that she had been asked to find a couple of documents, and there was no discussion between me and Mr Jordana of the nature that you are hypothesising. CHAIR-You are just reinforcing the point. You had a discussion with him at the relevant time, and it never got raised. Ms Halton-There were a number of discussions in this particular week, most particularly about the current handling; so, as you recall SIEV-whatever we were up to at that particular point-was the source of some discussion. This issue was not canvassed in any conversation I had with Mr Jordana. CHAIR-That is my point, too, that it was not. Ms Halton-Yes; it was not. CHAIR-I have no further questions. CERTAIN MARITIME INCIDENT CMI 2152 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-I have one last question very briefly, Ms Halton. Do you take any lessons from this whole episode as, at the time, a very senior officer of the Commonwealth but now as the secretary of a very large department? Have any of the experiences been valuable from that point of view? Ms Halton-Invaluable, Senator. It is fair to say that I and the senior officers in the department have had a number of lengthy conversations about the lessons to be learned here- about documentation, about the role of advisers and a number of other lessons. Indeed, I have written to the senior executive in my current department about standards in relation to record keeping and a number of other issues, for precisely those reasons. I think you know that my current department has a bit of a history of issues in relation to record keeping, and I have been very minded to reinforce with them what I think are some of the issues. I have been able to speak from personal experience about the circumstances in which one may be if one finds oneself involved in an issue which at the time does not look particularly important but which in retrospect becomes an issue of some controversy and some public interest. It is fair to say that we have an SES planning day tomorrow for all of the officers in my department, and one of the things I am going to say in my prepared notes the first thing tomorrow morning goes to these issues. Senator FAULKNER-Very briefly, what would you say in relation to the first issue: record keeping? Have you gone further than just identifying its importance and significance? I am sure we would all understand that, but have you gone any further and looked at how that might be improved in terms of your experiences from this issue? Ms Halton-I have told my senior officers that, in the next round of performance agreements, issues about attention to record keeping and keeping a proper trail in relation to particular decisions will be things that people are assessed against. We have talked about the need to be very clear about those things being filed and available. There is a series of lessons here. I would not want to give you the exhaustive list, because I will miss something, but I think it is also fair to say that secretaries more broadly have canvassed this issue, and I think it is something that we are all very aware of. Senator FAULKNER-Finally, what lessons do you learn in the area of ministerial advisers? Ms Halton-The instruction I have given my staff is that advice provided to officers is to be provided, in writing, to ministers. Senator FAULKNER-All advice? Ms Halton-That is not to say the normal traffic of conversation but, in terms of matters of moment, in terms of issues of decision, in terms of the business of government, there needs to be a paper trail and it needs to be to the minister. Senator JACINTA COLLINS-So executive authority resides with the minister. Ms Halton-That is quite correct. I think one of the difficulties for us in today's world is that information moves much more quickly than it did in the Public Service of 20 years ago, and that CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2153 may mean that we slow down a little bit. But in terms of prudence of public administration, I have made it very clear to my senior staff what I think is appropriate, and we have talked about this experience. What I have said to them is that no-one wants to end up in a position like this. Senator FAULKNER-And accountability of ministerial advisers? Is that part of it? Ms Halton-There has been a discussion about that issue. Senator FAULKNER-Very quickly, are there any views you can share with us about that? Ms Halton-I think that what has been canvassed are the facts of the situation and how to deal with that, which goes to advice to ministers. CHAIR-Thank you, Ms Halton. I think that concludes today's questions and, I think, your evidence to this inquiry. Thank you. Ms Halton-I am pleased to hear it. Thank you, Senator. CERTAIN MARITIME INCIDENT CMI 2154 SENATE-Select Tuesday, 30 July 2002 [5.14 p.m.] BYRNE, Air Commodore Philip Darcy, Commander, Maritime Patrol Group, Royal Australian Air Force CHAIR-Welcome to the inquiry. We apologise for keeping you waiting so long. There is nothing more I can say about that, other than our apologies, but we as a committee felt the need to pursue a number of questions with the previous witness. Do you have an opening statement? Air Cdre Byrne-I have, Mr Chairman. CHAIR-Before you proceed, the practice we have followed is that if there are copies of that and they can be handed around, it can save a fair bit of time in questioning. I think that is what has happened in the background behind you, so please proceed now. Air Cdre Byrne-I am the current commander of the Maritime Patrol Group, which is located at RAAF Base Edinburgh in South Australia. I assumed my position as Commander MPG in February 2000. My experience in maritime patrol operations began in 1974 and extends for 14 years, with intermittent breaks. I am able to assist you by describing Maritime Patrol Group operations in relation to Operation Relex. To begin with, it may assist the committee if I describe the role and place of my organisation within the Australian Defence Force. The Maritime Patrol Group operates the P3C Orion long range surveillance and anti-submarine warfare aircraft. This aircraft carries a number of sensor systems, including a maritime search radar and an infra-red detection system for night operations. Maritime Patrol Group aircraft and crews have been involved in searching for SIEVs as part of Operation Relex and its predecessor since August 2001. Since the beginning of operations, Orion aircraft have patrolled search areas, with few exceptions, daily. Operation Relex has flown eight- to 10-hour missions on most days over the past 11 months. Aircraft conducting Operation Relex surveillance are under the command of Headquarters Air Command and the operational control of Commander NORCOM whilst airborne. In addition, aircraft come under tactical control of RAN ships deployed on Operation Relex while in the search area. Turning now to the events surrounding the so-called SIEVX, Orion surveillance missions were flown daily from 18 to 23 October inclusive. These missions were approximately 10 hours long and spent some 4½ to 5 or so hours on surveillance in the vicinity of Christmas Island. I understand the committee has had provided to it a summary of search patterns undertaken by Orion aircraft during this period. The material shows in a pictorial format the general search patterns for the flights from 19 to 20 October. In addition to the daily flights over the period, an additional surveillance mission was flown on the evening of 19 October in response to a request from Headquarters NORCOM. I was a crew member on that flight. I can say that at no time was surveillance withdrawn over the period in question. To the contrary, on 19 October Orion surveillance was increased. I have reviewed the intelligence briefing material provided to the crews who flew missions over the period. This briefing material contains no information to indicate a safety-of-life-at-sea issue CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2155 before 23 October 2001. No distress signals were received by any of the surveillance flights. Had a distress signal been received, we were in a position to respond immediately. Each surveillance aircraft was fitted with an air-sea rescue kit. In summary, the men and women of the Maritime Patrol Group have been involved in daily surveillance flights since 28 August 2001, and have diligently and professionally undertaken their duties. I am proud of the way they have carried out their mission. CHAIR-Thank you, Air Commodore. The Australian newspaper yesterday on page 5 carried a report headed `Spy planes not told of boats' status', with a by-line of `Cameron Stewart'. Are you aware of that report? Air Cdre Byrne-I am. CHAIR-Did you speak to Mr Stewart? Air Cdre Byrne-He rang me last Friday. CHAIR-Are you, therefore, the source that is quoted in this story? Air Cdre Byrne-I told him that I could make no comment on the statement. I asked him if he would read me the statement that he was going to make. He read it to me. I said, `I can make no comment except that "I do not disagree with anything that you have said."' CHAIR-Which is to confirm what he read to you. Air Cdre Byrne-That was all I said. CHAIR-Which confirms what he read to you. Air Cdre Byrne-I made that statement to him. I said, `I can make no comment.' Yes-the answer is yes. CHAIR-From what you were saying, though, you did not provide the original information to the reporter, Mr Stewart? He had that when he spoke to you? Air Cdre Byrne-That is correct. CHAIR-And he was seeking confirmation that what he had was- Air Cdre Byrne-He was seeking further comment, and I gave him no comment except to confirm that I would not object to any of the information that he was going to state. Effectively, I was wanting to say that yes, I would be upholding the Maritime Patrol Group and defending them in Operation Relex. CHAIR-Did he let you know how he obtained the information that he put to you? CERTAIN MARITIME INCIDENT CMI 2156 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-No. CHAIR-Had you circulated your statement? Air Cdre Byrne-No, I had not. CHAIR-Do you have any idea how he would have obtained it? Air Cdre Byrne-No, I do not. CHAIR-Did you notify the minister's office of what you were going to say? Air Cdre Byrne-I rang the Chief of Air Force's office, told him that I had been called by Cameron Stewart and told him that I had made that statement. CHAIR-So this was after the event. I am going to how Cameron Stewart may have obtained the information about what you were going to say today before he rang you. Air Cdre Byrne-Cameron Stewart had spoken with me about a month before and asked me simple questions. I had said to him-and I cannot remember exactly-that I expected that Maritime Patrol Group would in fact be part of the investigation at some stage. CHAIR-But the point I am coming to is that the information he rang you with last Friday- Air Cdre Byrne-I did not provide to him. CHAIR-You did not provide him with that information? Air Cdre Byrne-I did not provide it to him. CHAIR-Who did you provide that information to? Air Cdre Byrne-I provided no information. The only information I provided with regard to the investigation that we are part of today was to the task group that was headed up by Rear Admiral Gates. CHAIR-So you provided the information to Rear Admiral Gates's task force. Air Cdre Byrne-Correct. Senator JACINTA COLLINS-Do you know if they provided that information to the minister's office? Air Cdre Byrne-I am sorry, Senator; I do not know. CHAIR-I may come back to this later or I may not-and I do not want to delay the proceedings-but can you refresh my memory about the current situation for officers of the CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2157 Defence Force speaking to the media. We know, for example, during the period from August last year, I think it was, through to early this year, under the previous minister there was in effect an order which centralised comment through the minister's office. What is the current situation? Air Cdre Byrne-Comments can only be made by officers with the rank of one star or higher. In the case of Air Force, that is Air Commodore. CHAIR-When comments are made, are you required to notify anyone? Air Cdre Byrne-Yes, I am. CHAIR-Who are you required to notify? Air Cdre Byrne-The Chief of Air Force. I cannot remember exactly; I have the piece of paper sitting beside me on my desk. CHAIR-Is this who you notified after you had spoken to Mr Stewart? Air Cdre Byrne-I could not get on to the Chief of Air Force, so I spoke to a group captain who runs his office. CHAIR-In the expectation that a staff member in his office would notify him of your call. Air Cdre Byrne-Yes, but I did speak with the Chief of Air Force yesterday, and he was aware of it. CHAIR-That is after the event-after the press report appeared? Air Cdre Byrne-Yes, but I notified the Chief of Air Force's office of the contact with the press when it occurred. CHAIR-As I say, I may come back to this or I may not, but thank you for that. Senator FAULKNER-Air Commodore, when did you discover that you were going to be offered up as a witness to the committee? Air Cdre Byrne-I was overseas. I think it would have been about the same time as Colonel Gallagher, who was brought before the committee on 11 July-my birthday-and I was overseas at the time. Senator FAULKNER-Happy birthday for that day. Air Cdre Byrne-Thank you, Senator. CHAIR-It was perhaps not the present you were looking for on that day! CERTAIN MARITIME INCIDENT CMI 2158 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-I feel proud to be here. CHAIR-We will not exploit the opportunity of having you under oath to ask you how old you are. We will pass immediately to the next question. Senator FAULKNER-I could comment that, if that was on your birthday and your birthday was on 11 July, you had a little more notice than Colonel Gallagher had, because his appearance followed quickly after your birthdate, as you would appreciate. In terms of your appearance, where did that indication to you come from? Air Cdre Byrne-It was passed to me by telephone. I was flying with my crews in a major exercise in Hawaii. I landed one day, and it was passed to me. Senator FAULKNER-Who passed it to you? Air Cdre Byrne-I cannot remember. Senator FAULKNER-Was the indication that this was the suggestion of the minister or of somebody else? Air Cdre Byrne-The information that was passed to me was that I would be appearing before the Senate inquiry. I am sorry; I really have not got any further information. I assume that, if I have been told that I am appearing in front of an inquiry, I am appearing in front of an inquiry. Senator JACINTA COLLINS-You cannot recall the source of that request. Air Cdre Byrne-No, Senator. Senator FAULKNER-Did anyone inform you of what issues you might be canvassing or might be expected to canvass before the inquiry? Air Cdre Byrne-Yes, I was provided with that information on my return to Australia. Senator FAULKNER-Have you had the benefit of a discussion with Rear Admiral Gates about your evidence? Air Cdre Byrne-I have not. Senator FAULKNER-Are you aware that you are appearing today because the Minister for Defence has blocked the appearance of Rear Admiral Gates? Air Cdre Byrne-No, I have no knowledge of that. Senator FAULKNER-Thank you very much for that. I wondered if we could just turn the air commodore to some of the issues surrounding one element of this committee's work that has come about as a result of an expansion of the terms of reference, which I think was a very useful CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2159 decision that was made so we could examine in some detail the question of SIEVX. I wonder, first of all, if we could go to some of that evidence that Colonel Gallagher actually provided to us at the committee. I am interested, in a sense, in some of the interface between your role, responsibility and what you are able to provide for us and what Colonel Gallagher was able to tell us. I do not know if you have had the benefit of reading his evidence or not. You might share with us whether you have or not. Air Cdre Byrne-I have read it, yes. Senator FAULKNER-You recall that Colonel Gallagher said to us, in relation to reports from ASTJIC, that they went to all those involved in operational work. I asked him some questions about that. Let me quote him to you. He said: It goes to all people involved in conducting the operation, which would have been the ships at sea; the aircraft, or the squadrons that the aircraft belonged to; Headquarters Northern Command; and all four component commands-that is, naval, land, air and special operations. Information copies would have been forwarded to DIO, DSD and DIGO. In relation to your own group, can I be clear that you received intelligence from ASTJIC? Air Cdre Byrne-We did, Senator. Senator FAULKNER-Is that direct? Do you receive that directly from ASTJIC? Air Cdre Byrne-We do. We also receive intelligence reports from NORCOM. Senator FAULKNER-Are there any other sources of intelligence that go to your group? Air Cdre Byrne-Not that I know of, but I can take that question on notice. I do not want to say that we do not if we do. Senator FAULKNER-Fair enough. But generally it is ASTJIC mainly but also NORCOM-is that right? Air Cdre Byrne-ASTJIC and NORCOM, yes. Senator FAULKNER-In relation to the suspected illegal entry vessels, can you say to the committee whether this intelligence, in the broad, tended to outline when possible SIEVs might be departing from Indonesia or other countries? Air Cdre Byrne-The reports, on a daily basis, were providing indications of possible departures. Senator FAULKNER-Can you say in relation to SIEVX what sort of intelligence your group received? Air Cdre Byrne-Yes, I can. Senator FAULKNER-Could you share that with us, please? CERTAIN MARITIME INCIDENT CMI 2160 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-The term `SIEVX' is one that has been used only in the last few months. Senator FAULKNER-If I can interrupt, I do appreciate that that is the point and I do understand that this would not have been terminology that would have been used at the time. But, for ease of our speaking about this, it is probably valuable if we just use that terminology. I do appreciate the point you make and I know all the committee members do. Air Cdre Byrne-Certainly, Senator. From the information that we derived from reports that were provided by NORCOM and ASTJIC, and which were subsequently provided as intelligence summaries for crews who were flying, the first mention of a small and overcrowded vessel-which is my hint that it is the vessel now known as SIEVX-was mentioned in a 92 Wing intelligence summary for 21 October. That would have been based upon ASTJIC and NORCOM intelligence reports from 20 October noting that the intelligence summary for the crews who were flying on the 21st were put together to brief the crews at or about midnight of the 21st. Senator FAULKNER-So you did not receive any reports of 18 October? They did not come through? Air Cdre Byrne-There were no reports on 18 October that specifically identified the boat that we now refer to as SIEVX. In my investigations I have tried to link it with SIEVX being small and overcrowded, and the first indication of a small and overcrowded vessel in a NORCOM and ASTJIC `in sum' was the 20th, which was subsequently briefed to the crews at about midnight of that night, which was for the flight of the 21st. Senator FAULKNER-I appreciate and acknowledge the point you make about a small and overcrowded boat. I understand that qualification. Is there anything in relation to an in sum on 18 October or that emanated from ASTJIC or NORCOM on 18 October-and it may not have been received by you on 18 October-that could possibly have been SIEVX? In other words, it did not necessarily have that characteristic of `small and overcrowded' that we have just been talking about? Air Cdre Byrne-Not to my knowledge. Senator FAULKNER-So you are quite clear that the first report was the report of 20 October and that it was received by your group on 21 October? Air Cdre Byrne-No, it was received by my group on the same day, on the 20th, and it was used to put together a briefing for the crew that was going to be briefed about midnight of that day. Senator FAULKNER-Are you able to be more precise in relation to those timings on the 20th-in other words, when it was actually received? Air Cdre Byrne-I would have to take it on notice. I am pretty certain that we would keep that information. In fact, my staff could try to get that information now. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2161 Senator FAULKNER-If you do not mind taking it on notice, that would be helpful. But the point you are making is that the tasking that resulted from this report-those flights-took place on 21 October? Air Cdre Byrne-Correct. Senator FAULKNER-Can you say to us in the broad-you are dealing very much with laypeople here, of course-how much you rely on these intelligence reports for the sort of surveillance work that you are doing; how important are they? Air Cdre Byrne-It depends. They are important if they lead us to search an area in a particular way. In the absence of the reports, we will still search the area as best we can. However, if we have queuing information that might lead us to search in one particular area first, then they might become important. Senator FAULKNER-How much notice is taken of this sort of intelligence material? Air Cdre Byrne-Crews will generally be very aware of the possibility of one or two SIEVs in the area. I shall not say that they try harder, but perhaps crew members will be a little more diligent in their duties. It is a natural reaction if you are expecting two in the area. Senator FAULKNER-Are you able to tell us how much signals intelligence, human intelligence and imagery are used in the tasking of aircraft? Air Cdre Byrne-Senator, I cannot; I do not know. Senator FAULKNER-You are just not in a position to make that sort of assessment? Air Cdre Byrne-No. Senator FAULKNER-Are you able to make an assessment generally about how important those different types of inputs are? Air Cdre Byrne-As an officer with 32 years experience, I have worked in various positions that would give me a view as to how important they may be, but I would prefer not to discuss that in this open fora. Senator FAULKNER-I am not going to individual intelligence reports here; I am just trying to get a broad understanding-I think it is useful to the committee-of the relative weights you might apply to some of this sort of information, particularly in relation to the sorts of reports that you have coming through from ASTJIC and NORCOM. But if you are unable to assist us, so be it. Air Cdre Byrne-It is really not my area of expertise, and I just point you in the direction of the intelligence experts; that is their job. I am an expert on maritime surveillance; I am a user of their information. CERTAIN MARITIME INCIDENT CMI 2162 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Yes, and that is the point I am trying to come to. Obviously, I appreciate that you are neither a collector nor an analyser of this material. I do understand that. But, as you say, you use that information in your role in surveillance. It is that interface that I am interested in. What about information from radio beacons? Is that used as intelligence to tasking of surveillance aircraft? Air Cdre Byrne-Not in this case, although we do have the ability to pick up radio beacons. To my knowledge, no intelligence from a radio beacon has been pertinent to Operation Relex over the last 11 months. Senator FAULKNER-Fair enough. I wondered about that-maybe even from beacons used on Indonesian fishing boats, for example. Air Cdre Byrne-I can say that Indonesian fishing boats do, on occasion, discuss between themselves on a radio frequency. Senator FAULKNER-Yes. I think we are aware that these are used increasingly on Indonesian craft. This might be due, in part, to a Canadian aid program, as far as I understand. I am wondering whether they provide useful information to surveillance aircraft. I am thinking here of the EPIRB beacons. What do you call those beacons? Air Cdre Byrne-Emergency personnel locator beacons. We have the ability to pick them up. Senator FAULKNER-Yes. I just wondered whether there was any particular role for SOLAS situations. Air Cdre Byrne-Absolutely. And had an emergency personnel locator beacon been triggered, we would have picked it up immediately, had we been within range of that beacon. Senator FAULKNER-That sort of SOLAS related information, if there were any, would be passed on to aircraft, obviously. Air Cdre Byrne-Yes. Senator FAULKNER-But in terms of Operation Relex, that has not been used effectively, I think you were saying. Air Cdre Byrne-We monitor those emergency frequencies, including EPIRB frequencies, whenever we get airborne. Senator FAULKNER-Did your group ever receive phone calls about intelligence information in relation to the SIEVX vessel or the notorious people smuggler Abu Qussey? Do you get information in that sort of form when it comes through from ASTJIC and NORCOM? Reports that are no longer `raw intelligence' may be the best way of describing it. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2163 Air Cdre Byrne-No, we do not. We receive processed intelligence from ASTJIC and NORCOM. Senator FAULKNER-Do you receive only processed intelligence? Air Cdre Byrne-That is my understanding but I could clarify that with my intelligence officers, if you so desire. Senator FAULKNER-No, I accept what you say. I am just trying to get a broad understanding at this stage of how the group works. More specifically, could you tell us whether any directions were ever given to the patrol group to focus on a particular area in the period from 18 October 2001 to 22 October 2001? Air Cdre Byrne-On 18 October, there was no direction. The search was undertaken as a creeping search from the south to the north. On 19 October, it was the same: from the south to the north. For the second flight of 19 October, which was the night flight put on to take the place of Arunta's helicopter, which was unserviceable, we were advised to search the southern areas-south-west first, then south-east, then north-west, then north-east, in that order. So the priorities for the second flight were south-west, then south-east, then north-west, then north- east. On the flight of 20 October, I believe it was south-west, then north-west, then north-east, then south-east, in that order. Senator FAULKNER-And who gives those directions, Air Commodore? Air Cdre Byrne-They are given by the ship on joining with the ship. The aircraft receives initial instructions via a tasking message. When it reaches the area, it joins with the ship, rings the ship up on radio and receives more detailed tasking from the ship. Senator FAULKNER-In the case of the second flight on 19 October, the relevant ship was the Arunta? Air Cdre Byrne-It was, Senator. Senator FAULKNER-Is that also the case in relation to the 28th; is it also the Arunta? Air Cdre Byrne-I believe so. Senator FAULKNER-I have just noticed a number of references to the unserviceability of the Arunta's helicopter, which I absolutely accept. I would have thought that the P3 Orions would have had a vaster range than the helicopter off Arunta; there would be no comparison, would there? Air Cdre Byrne-In what sense, Senator? We carry more fuel. We go further. Senator FAULKNER-And you go a lot quicker? CERTAIN MARITIME INCIDENT CMI 2164 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-We go quicker. I think we have a more powerful radar, and there are some other capability differences in other sensors. Senator FAULKNER-Yes. In official capability. Air Cdre Byrne-We are a bigger aircraft. Senator FAULKNER-A bigger and better operation. Air Cdre Byrne-And more capable in certain areas. Senator FAULKNER-What I am interested in understanding is how significant an operational impact the loss of the Arunta's helicopter had. You may not be able to assist us in that. Air Cdre Byrne-I think the loss of a helicopter is a significant loss in a surveillance operation. Helicopters are not as capable as a P3 for the reasons we have discussed but they are not incapable. They are still very capable platforms. Senator JACINTA COLLINS-So, in terms of the surveillance powers that we have been provided so far, are we only seeing part of the picture? Do we also need to look at the ship's helicopter surveillance as well, other than on this one occasion when the P3 replaced the Arunta's helicopter? Air Cdre Byrne-Perhaps, Senator. My understanding is that the ship's helicopter would search the southern part of the area in the p.m. hours. Senator JACINTA COLLINS-In the evening hours? Air Cdre Byrne-In the afternoon hours. Most of the Orion surveillance flights were carried out in the morning hours. The helicopter carried out a surveillance flight in the evening hours but, of course, that surveillance flight would have been limited to the southern reaches of the area because of the limitations in range and endurance of the helicopter. Senator FAULKNER-So the direct tasking in relation to those `sectors'-is that the correct terminology: south-west, north-west, north-east, south-east sectors? Air Cdre Byrne-That will do. Senator FAULKNER-Tell me if there is better terminology. That comes from HMAS Arunta? Air Cdre Byrne-It does. Senator FAULKNER-Do you know if it comes originally from NORCOM or elsewhere? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2165 Air Cdre Byrne-I suspect that it is the Captain of HMAS Arunta in consultation with the Commander of NORCOM or his staff who make that judgment. Senator FAULKNER-When you receive such tasking, is there any difference between tasking for surveillance for interception or some other function or a safety of life at sea situation? Air Cdre Byrne-Very much so. Senator FAULKNER-Could you explain the detail of that for us? Air Cdre Byrne-The methods of surveillance that were being used in Operation Relex were primarily radar, as a prime sensor, and visual, as a secondary sensor. If a safety of life at sea incident is at hand, the prime sensor would be that which one would expect had a best chance of detecting the person, persons or vessel at risk. For example, if the safety of life at sea incident is to look for a ship, the prime sensor may well still be radar; if it is to look for someone in the water who has an EPIRB beacon, it would be a beacon search, not a radar search; if it is for somebody in the water who does not have a beacon, it would be a visual search and it would be restricted to, one hopes, an accurate datum of the last known position and it would have very close track spacing. Senator FAULKNER-Were there any differences in the surveillance that takes place over the period that we are talking about-18 October to 22 October 2001-in relation to that type of surveillance? Air Cdre Byrne-None whatsoever-and logically so, because there was no safety of life at sea situation known at that time. Senator FAULKNER-In relation to the information that comes through the ASTJIC for the tasking of your group on 21 October, are you able to provide any more detail specifically about the nature of that intelligence reporting or tasking? Can you assist us any more with that? Air Cdre Byrne-As I have made a small note here, on the 21st a report mentioned the possibility of a small and overcrowded vessel. It reported that the vessel had left the west coast of Java. No, I tell a lie. I think that was the only vessel that they were searching for on that day. The reason I mentioned that is that there had been two vessels that we had been searching for on the previous two days, but we had found one of them on the 19th. Senator FAULKNER-So really the only intelligence report goes to the possibility of a small and overcrowded vessel? Air Cdre Byrne-Correct. Senator FAULKNER-Not to the point of departure or anything like that? Air Cdre Byrne-I would have to check whether the intelligence report does in fact give a point of departure or a possible point of departure. I have not got that- CERTAIN MARITIME INCIDENT CMI 2166 SENATE-Select Tuesday, 30 July 2002 Senator FAULKNER-Yes, a possible point of departure or any other elements that might assist the surveillance operation. Air Cdre Byrne-All we have got in the report is that the vessel had left the west coast of Java. Senator FAULKNER-So there are two elements: a vessel had left the west coast of Java, and it was small and overcrowded. Is that it in a nutshell? Air Cdre Byrne-That is it. Senator FAULKNER-Is there any date in relation to when it leaves the west coast of Java? Is there any time or- Air Cdre Byrne-No. None whatsoever. Senator FAULKNER-Was it the practice of the P3 Orion surveillance groups to take photographs of SIEVs when they were spotted? Air Cdre Byrne-Yes, it was. Senator FAULKNER-What form are those photographs in? Air Cdre Byrne-Generally they are taken as wet film. Recently we have been taking digital film. Senator FAULKNER-We have received evidence that there were no photographs taken of SIEVX, but I think I should ask you this just so you can confirm it for the committee. Can you confirm that that is the case? Air Cdre Byrne-That is the case. Senator FAULKNER-What sort of knowledge did the Maritime Patrol Group actually have-I assume it is quite detailed-of the Royal Australian Navy vessels that were in the area? Air Cdre Byrne-Total knowledge. Senator FAULKNER-Does that include submarines? Air Cdre Byrne-No, it does not. Senator FAULKNER-So, all surface vessels? Air Cdre Byrne-Correct. Senator FAULKNER-Would you know, in this case, whether there was any Royal Australian Navy submarine activity in that broad area? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2167 Air Cdre Byrne-I do not know whether there were any submarines there. CHAIR-You do know that there were no submarines on the surface? Air Cdre Byrne-I do know that there were no submarines on the surface. Senator JACINTA COLLINS-You saw no submarines on the surface? Air Cdre Byrne-We did not detect any submarines on the surface. Senator FAULKNER-Did the Maritime Patrol Group have any interaction at all with the People Smuggling Task Force? Air Cdre Byrne-No. Senator FAULKNER-I assume the answer to this is no, but I want to be clear here: you would not be receiving any direction regarding surveillance matters from the People Smuggling Task Force? Air Cdre Byrne-No. Senator FAULKNER-Because you were only receiving these from either ASTJIC or NORCOM? Air Cdre Byrne-Correct. Senator FAULKNER-You may not be able to assist us here. When we read the task force notes, for example on 21 October it says: * Check Defence P3 is maintaining surveillance over Christmas Island. On 22 October, it says: SIEV 8 * Not spotted yet ... that element of it. On 4 October, an unidentified boat has been upgraded to possible arrival ... but no sighting as yet. Those sorts of reports obviously originate with your group, don't they, or Coastwatch? Air Cdre Byrne-No. The only reports that originate from my group are contact reports. If we find a SIEV-for example, we found SIEV6, then we reported SIEV6 both in the air- Senator FAULKNER-So if you find nothing you report nothing? CERTAIN MARITIME INCIDENT CMI 2168 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-We report everything that we do find, and most sorties do find something-20 or 30 fishing vessels and merchant vessels-and they are reported. Senator FAULKNER-Yes, but what you report is contacts? Air Cdre Byrne-Correct. Senator FAULKNER-Who do you report to? Air Cdre Byrne-We report them, in the air, to the ship with whom we are working and we report them, once we have landed, to our operating control authority and a number of other agencies. The operating control authority then further distributes that report. Senator FAULKNER-Are you aware of what those other agencies are? Air Cdre Byrne-Not off the top of my head, but I could find out. Senator FAULKNER-I would appreciate it if you would take that on notice. I suppose I am interested in who they are and-you might take this on notice too-the time delay that might be involved in those reports being disseminated. There is no urgency about that, but if you could I would appreciate it. Have you looked exhaustively at those contact reports for the period that we are speaking of- Air Cdre Byrne-I certainly have. Senator FAULKNER-18 October through 22 October? Air Cdre Byrne-I have. I have looked at the post-flight reports for each of those sorties. Senator FAULKNER-What, if anything, can you say to us about them? You can say, I assume, that there is no contact of anything remotely like SIEVX, can you? Air Cdre Byrne-Yes, except for the contact on the 19th, which was SIEV6. Senator FAULKNER-You may or may not have seen it, but there has been some press commentary-most recently I could point you to a Dateline program on SBS television. That reports survivors, in some instances, actually saying to camera-I do not know if you have seen this or not-that they saw a large ship or a number of large ships shining their lights on survivors. Some thought they were, in fact, naval vessels. There was even a suggestion at one stage, which has subsequently been found to have no substance, that it might have been a Royal Australian Naval vessel involved. Are you able to indicate to us in the assessment that you have made of the contacts in this period, particularly about the time when we now know SIEVX sank, whether such reports make any sense to you from the information you have had available to you? Air Cdre Byrne-I have looked-quite obviously it was an important point. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2169 Senator FAULKNER-You have looked for that specifically? Air Cdre Byrne-I did. I tried to make some sense out of it and I could not. If you look at-I think you have got the material-the radar contacts from the flights of the morning of the 19th and the 20th, they do not shed too much light on concentrations of ships, particularly merchant ships, in the vicinity of that latitude and longitude that was mentioned on the Dateline program. Senator FAULKNER-I think the key element here is that the evening of the 19th is the night of the 19th, isn't it? That would be what we would be talking about. But you specifically looked to see whether there was anything that might make sense? Air Cdre Byrne-I have looked to see if there is a concentration of vessels in the vicinity of the point at which the Dateline program indicates that the SIEVX went down. I could not find anything. Senator FAULKNER-Can you say to us whether the maritime border patrol knows of any ships that may have been in the area or in some way adjacent to the area where it is suspected that SIEVX sank? Air Cdre Byrne-Yes, I can give you the positions of all of the ships that were in the area that were detected on the flights of the 19th, because the aircraft flight on the 19th detected ships and fishing vessels and those contacts were all reported. Senator FAULKNER-But none of this information throws any light on these suggestions or allegations or claims that are made in relation to largish vessels and lights shining on survivors? Air Cdre Byrne-Not that I have seen. Senator FAULKNER-In relation to the second flight of 19 October, it seems to indicate from the map-but I would seek your professional assessment of this-that the second flight of 19 October does not go as far north as similar flights. Is that right? Air Cdre Byrne-That is correct. Senator FAULKNER-Can you say to the committee why that was the case? Air Cdre Byrne-Certainly. Firstly, we were tasked by the Arunta when we first came on task with searching a sweep from east to west, 10 nautical miles to the south of the area. So we actually initially searched to the south of the area, which obviously takes time. We also had very bad weather. We were deviating around thunderstorms and rain cells for the full 4½ hours on task, and that takes up time and effort. We also deviated out to the west of the area. You will notice on the radar contacts and fishing contacts that were picked up just outside the area, to the west of the area. We were 45 minutes outside the area visually identifying those in the dead of night with infra-red detection gear. That actually involves overflying each contact at 300 feet and looking for hot spots to try and identify suspected illegal entry vessels by multiple hot spots, for example. We were out of the area for 45 minutes. CERTAIN MARITIME INCIDENT CMI 2170 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Does that identify the number of people on board the vessel? Air Cdre Byrne-That is right. Each contact has to be flown over directly, and that takes time. There is the deviation around the cloud and the fact that we were asked to search to the south of the area initially. We compressed the track spacing because of the bad weather to try and increase the probability of detection. Also, we had been told that the high-probability areas were the south-west and south-east areas. Senator FAULKNER-Have you been able to establish in the work that you have done why that tasking went to the south, the south-west and south-east first and then followed the north- west and north-east? Air Cdre Byrne-I can only make an assumption in that regard, and that is that that is the high-probability area, because they were expecting two vessels that day. They had found one in the morning in the south of the area and they wanted to make sure that they sanitised the south of the area before the next flight, which was not coming on until dawn the next day. If indeed they had not sanitised the south of the area, and if there had been something there, it would have reached Christmas Island before the next aircraft came on task at dawn the next day. So the tactical priority was to ensure that there was nothing in the southern part of the area. That is the reality of tasking priorities. But I also highlight that we were not restricted from searching the north of the area, and indeed we were tasked as a next priority with searching the north-west then the north-east. We never made it there because we ran low on fuel. It was just the luck of the game-going around all these thunderstorms in the area. Senator FAULKNER-How bad was the weather that night? Air Cdre Byrne-It was not good. It was particularly bad, as is indicated in the diagram. There was an `impenetrable'-I think that was the word used in the post-light report-area of thunderstorms about 30 miles long and 10 miles deep about halfway through the area. Senator JACINTA COLLINS-Was it the weather that led to the usage of fuel? Air Cdre Byrne-No, we were still on task for 4½ hours. It was the fact that we closed up the track spacing. Senator JACINTA COLLINS-To saturate the southern- Air Cdre Byrne-It was not so much the fuel usage; it was the flight track that led us only to search the southern area, largely. The track was closed up. Senator JACINTA COLLINS-For what reason? Air Cdre Byrne-Because the wind velocity was high and there was a lot of rain. That makes radar detection performance less than ideal. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2171 Senator JACINTA COLLINS-Let me understand this: the weather then led you to contract so that you had 100 per cent surveillance of the southern sectors- Air Cdre Byrne-Actually, 95 per cent was what we determined. Senator JACINTA COLLINS-and those the southern sectors were your priority tasks. Air Cdre Byrne-They were. Senator JACINTA COLLINS-So, as a consequence of the weather leading to that contraction, you ran out of fuel before you could get to the northern sectors. Air Cdre Byrne-That is right. In fact, we finished about the centre of the area. We were tasked at the end of the sortie with doing a sweep of about 60 nautical miles from west to east, 60 miles north of Christmas Island. We reached a point where, had we gone on, we would have used up about another 150 or 160 miles going away from our home base before we would have been on task in the north-west. At that point we would have had to turn around and come back again. So it was largely a combination of weather and the initial tasking which made us search outside the area, combined with us searching that high-density area of fishing boats which was to the west of the area. In fact, that was pretty much most of the contacts that we found that evening, as you can see from the radar contacts, which are plotted on the information that was given to you. Senator JACINTA COLLINS-So was there a decision taken in the course of this flight, when your radar identified at 1930 a vessel that was never visually identified, that, no, you could not go there yet, you needed to travel all the way over to the south-western sector and conclude surveillance there first? Air Cdre Byrne-I cannot remember the 1930. I have got the surface detections for the second flight on the 19th. Could you explain that? Senator JACINTA COLLINS-Flight 2, the 19th, right at the top, north-western sector, right on the dotted line, 1930. Air Cdre Byrne-Yes, that was an unidentified radar contact. From the range that it was made at, it would have been a good radar contact. We simply did not have a chance to get up there. Senator JACINTA COLLINS-That is what I am saying. Air Cdre Byrne-In fact, if it was made at 1930, it would have been detected on a leg from west over to the 2045-2050. Our priority was to search the south-east area and then return to the north-west once we had finished the south-east. If we had gone to that contact that we detected at 1930, that would have seduced us away from our primary search area, which at that point would have been the south-east sector. CERTAIN MARITIME INCIDENT CMI 2172 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-Yes. What I am trying to understand from the crew's point of view is whether they would have needed to say, `We can't look at that now. Our priority is still to get over to the south-east, and if possible, although not likely, given how much fuel we have already used, get up there.' Air Cdre Byrne-We would have searched all of the south-east sector and then have attempted to get up into that area after we had searched the south-east sector. Senator JACINTA COLLINS-But, given that, just looking at the earlier map, you have conducted about two-thirds of the sortie by that stage, the crew would have been aware they were not likely to have enough fuel to get back there, wouldn't they? Air Cdre Byrne-Probably half of the sortie. Senator JACINTA COLLINS-If you look at the earlier page, you have got that loop right up the middle and then, as you have said, a very contracted sortie in the south-western sector. The final loop around is where you picked up that radar contact. Air Cdre Byrne-We were off task at 2115, so that was a 1930; almost two hours to go. Senator FAULKNER-But this is picked up by radar. Would that have to be a boat or could it be flotsam or something like that? Does radar pick up that sort of thing? It would have to be a boat, wouldn't it, of some description? Air Cdre Byrne-I would suggest yes. I would think so. In that weather we were picking up wooden fishing boats at about 12 nautical miles and in particularly bad weather seven nautical miles. We would not have picked that up-I would think that that would have been a good radar contact, certainly nothing less than a boat. Senator FAULKNER-Do you know how difficult it would have been to detect what that vessel was? Basically you had reached your limit of endurance, hadn't you? You could not go there. Air Cdre Byrne-That is correct. We had reached our limit of endurance and that would have been 10 o'clock at night and there was another aircraft on task at 5.30 in the morning. Senator FAULKNER-But it was because you had reached your limit of endurance that you could not check. Air Cdre Byrne-We were unable to go up and look at it. Senator FAULKNER-So that was not a weather issue? Air Cdre Byrne-No, it was a fuel issue. Senator FAULKNER-Who knows, but it does appear to be in the general area where SIEVX sank, doesn't it? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2173 Air Cdre Byrne-We do not know where SIEVX sank. Senator FAULKNER-That is why I used the major qualifier `general area'. I appreciate the debate around the location. But the point here is that that sort of radar would pick up only a vessel; it would not pick up flotsam and survivors. Air Cdre Byrne-I would say that in the weather that was present in the area that night it would have been impossible to pick up flotsam or jetsam. Senator FAULKNER-A lot of-how shall I describe them?-commentators have questioned why the surveillance patterns changed on 19 October. It is true, isn't it, that routine surveillance took place over the Christmas Island surveillance zone on 18, 19 and 20 October? Air Cdre Byrne-That is true. It is also occurred on 21, 22 and 23 October. Senator FAULKNER-Sorry, it also occurred on? Air Cdre Byrne-Routine surveillance occurred on 18, 19, 20, 21, 22 and 23 October. And on 19 October there was an additional sortie. Senator FAULKNER-Yes, I appreciate that point, but I was limiting my questions to that. I was wondering whether the Orion crews were alerted to any potential SOLAS situation. Air Cdre Byrne-Not at all-none. Senator FAULKNER-Of course, the point here is-and I hear very clearly the evidence you give-that this is a situation that is revealed in ADF intelligence reports of SIEVX's departure on 18 and 20 October. I think it is very important that this issue be nailed down. We also now know that this issue was not discussed in any detail at all at the People Smuggling Task Force. But you can categorically say to this committee that no SOLAS focused air search took place on any of those days in the relevant period from 18 October through to 23 October? Air Cdre Byrne-That is correct. Senator JACINTA COLLINS-In point of fact, you were not aware of any SOLAS information, were you? Air Cdre Byrne-If there had been SOLAS information, I would have become aware of it. Senator JACINTA COLLINS-So you never received the detail of the AFP report indicating a potential SOLAS situation? Air Cdre Byrne-We received no information of an AFP report indicating SOLAS information. I understand, by reading Commissioner Keelty's evidence, that there was no report until 23 October. CERTAIN MARITIME INCIDENT CMI 2174 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-You will have to read very carefully how he characterises that. He says `all of the information that might have led to a SOLAS situation', including reports from survivors, `was not available until 23 October'.. He later corrected that to clarify that point that it all was not available by that stage. He has not denied that there was a report on the 20th that formed the basis of the ASTJIC report, that formed the basis of your report to crews at midnight on 20 October. But, from what you say to us, that report did not include any information that would lead to SOLAS concerns. Air Cdre Byrne-That is correct. Senator FAULKNER-In relation to the early morning flight of 19 October, on the chart there is a radar detection at 9.19 of something just outside the surveillance area, something that looks like it might have been heading south. Are you able to say what that was? Air Cdre Byrne-No. It was a radar contact that could not be visually identified because of the range. Also, we were not in a position to further investigate that vessel, because it was within the no-go area, 24 nautical miles from the Indonesian baselines. Senator FAULKNER-Was it ever determined what it was? Air Cdre Byrne-Not to my knowledge. Senator JACINTA COLLINS-What was the 9.32 one? Air Cdre Byrne-Was this on the morning of the 19th? Senator JACINTA COLLINS-Sorry, that was a merchant ship. Senator FAULKNER-Are you aware of any reason why there was no afternoon search of the north-west quarter on 19 October, after the 9.19 radar trace that morning? Air Cdre Byrne-The only reason I would put down is that there was no reason to have an afternoon search. There would have been no reason to put one up. Is this for the 19th? Senator FAULKNER-Yes, 19 October. Air Cdre Byrne-There was only the additional Orion flight that took off at about three o'clock in the afternoon and was on-task at about 5.30. It landed at about midnight or one o'clock in the morning. Senator FAULKNER-Obviously what we are looking at is whether it is possible that any of these traces may have been SIEVX. No doubt this is something that has exercised your own mind. Air Cdre Byrne-Exactly. Senator FAULKNER-I suspect that this is an imponderable, isn't it? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2175 Air Cdre Byrne-Very much so. Senator FAULKNER-But, of course, the similar radar contact on the second flight at 1930 was in fact inside the surveillance area, wasn't it? Air Cdre Byrne-It was. Senator FAULKNER-So there were other elements that pertained there. Air Cdre Byrne-That is right; we did not get up there because we did not have the fuel. Senator FAULKNER-No report came from ASTJIC or from NORCOM at this stage that caused any difference to the way surveillance was done through this period from 18 to 23 October, was there? Air Cdre Byrne-No. Senator JACINTA COLLINS-Can you provide us with the detail of when you received the ASTJIC report on 20 October and, similarly, the NORCOM int sum on that day as well? Air Cdre Byrne-The ASTJIC int sum of 20 October was received at the 92 Wing detachment at Learmonth in Western Australia, from where they were operating at the time. It was 200001 zulu, which was 200801 local time. Senator JACINTA COLLINS-I was trying to trace that through what we know about when the originating report arrived. Senator FAULKNER-It was from Colonel Gallagher. Senator JACINTA COLLINS-No, earlier than that-the AFP one. When we go to the original AFP report, it arrived with Coastwatch at 9.30K on 20 October, and it was that report that Colonel Gallagher told us formed the basis of the ASTJIC report they put out that day to forward on that information as quickly as possible. When I trace through the timing of the 9.30K, it seems that it appears to be before the timing of the flight on the 20th. I am trying to understand why, if at 9.30K intelligence arrives, that intelligence would not be passed through to a crew that is commencing at about that time on-task. Air Cdre Byrne-Let me put that report in kilo terms. That report was put out at 201001K, about half an hour after that time you mentioned. Senator JACINTA COLLINS-No, the time I mentioned was 9.30K. Air Cdre Byrne-Yes, and the ASTJIC int sum of 20 October was put out half an hour later. Senator JACINTA COLLINS-So that was put out half an hour later? Air Cdre Byrne-It was. CERTAIN MARITIME INCIDENT CMI 2176 SENATE-Select Tuesday, 30 July 2002 Senator JACINTA COLLINS-So it was received by you at that time? Air Cdre Byrne-It was received half an hour later at 92 Wing det Learmonth, yes. Senator JACINTA COLLINS-How does that time translate to where the P3 was at the time? Air Cdre Byrne-The flight for the 20th was airborne when that report was received. The crew for the 21st were briefed on that information that night before they got airborne. Senator JACINTA COLLINS-So they were not briefed on that information whilst they were on task? Air Cdre Byrne-No, they were not. Senator JACINTA COLLINS-Can I ask why that would not have occurred. Air Cdre Byrne-I would suggest it was because there was no information in there that they needed to be briefed on. Let me also check on the timings. When the int sum was received on the 20th the aircraft was three hours from off-task. The only thing I can think of is that there was nothing of any criticality in that intelligence report to bring to the attention of the crew, which was airborne. Senator JACINTA COLLINS-This in part reinforces for us why we need to see that report. Air Cdre Byrne-This is the ASTJIC report? Senator JACINTA COLLINS-Yes. As we understand it, that report was produced following the advice from AFP that there was an overcrowded vessel, with the AFP officer raising concerns about safety. I am finding it difficult to understand why, if that information was received by ASTJIC and used to compile their report-which they said they compiled immediately because of that sort of information-when it was received at your end it was not immediately translated to a crew that was in the air in the region at the time. Air Cdre Byrne-No, there was no safety of life at sea information. Correct. Senator JACINTA COLLINS-But we need to see what information there was to understand your comment about why whatever information was there was not translated. Air Cdre Byrne-I will take it on notice, then, to attempt to get the intelligence people to produce that for you. Senator FAULKNER-Was there any special tasking after it became clear that SIEVX had sunk? CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2177 Air Cdre Byrne-The first indication we had that the SIEVX had sunk was on the 23rd. It was reported to the crew that got airborne on the 23rd. Senator JACINTA COLLINS-So on that occasion there was a report directly to the crew? Air Cdre Byrne-ASTJIC NORCOM reported that a vessel had foundered, and this appeared in our subsequent int sum of 23 October. So it was reported, I suggest, at some time on the 22nd. Senator FAULKNER-But that did not lead to any special tasking for your crews? Air Cdre Byrne-No. We did not know where it was, for a start. Senator FAULKNER-Has there been any role for your group in assessments-obviously ex post facto-of this whole episode: for example, has there been any involvement in the development of Rear Admiral Gates's report and the like? Air Cdre Byrne-We provided this information that has been provided to you to Rear Admiral Gates's group. We have not undertaken any analysis. That is beyond our capacity-we do not have the information. What we have been doing is flying Relex sorties every day, including today. Senator FAULKNER-But you were able to provide some of that material that we obviously now have the benefit of. Air Cdre Byrne-Yes. Senator FAULKNER-That also has obviously been part of Rear Admiral Gates's consideration. You have done your own assessment of- Air Cdre Byrne-All I did was look through this information that was provided to me, which is based upon the information that we gave to them, and try to make a bit of sense out of it in anticipation of questions here. But I cannot make any sense of the concerns. Senator FAULKNER-We probably will not need to detain you much longer, Air Commodore. But if there was this expectation in the southern sectors on the day of looking for two boats and one of them was located and one was not located, I suppose the issue is the logicality of looking further north. No doubt that logicality would have struck those who were determining the strategic and tactical approaches for the day, I assume. Air Cdre Byrne-Not necessarily. What is important here is an understanding of the vagaries of weather, and the weather on the 19th was not good. And radar is not brilliant; it loses a lot of effectiveness, particularly against wooden hulled vessels in high sea states. The crew that flew on the 19th indicated that they assessed the probability of detection against a fishing vessel in the northern areas would be 75 per cent. Senator FAULKNER-Probability against detection? CERTAIN MARITIME INCIDENT CMI 2178 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-No, probability of detection of 75 per cent. That is a subjective assessment by the crew on the day, but it does indicate that it is not a perfect radar search. The integrity of their search was reasonably good in the north of the area; I checked the tracks basing myself. If I were an operational planner I would start by concentrating in the south of the area to make sure that nothing got through in the seven or eight hours subsequent when there was no aircraft on task, whilst there could have been a vessel transiting from north to south. Senator FAULKNER-Do you have any other insights into the surveillance operation and the sinking of SIEVX that you might be able to share with us to assist us in this element of this committee's inquiry? Air Cdre Byrne-Unfortunately no, Senator, I do not. It was a terrible tragedy but unfortunately we had no safety of life at sea indications and really did not know that it had happened until the 23rd, based upon all of the information that we had at hand. Senator JACINTA COLLINS-I want to go back to the issue of what advice ASTJIC did provide as a consequence to the AFP report from 9.30K on the 20th. I appreciate that you need to take on notice the full detail of that. What we know from our end is what information was fed into the system from the AFP end. We have some insight of that material, such as that it referred, I think, to overcrowding from ASTJIC. Are you able to indicate whether the overcrowding aspect was part of the report that was received by ASTJIC on that morning of the 20th? Air Cdre Byrne-At some time on the 20th, ASTJIC would have put out a report which indicated that a small and overcrowded vessel had departed, because it was definitely in our intelligence summary for that night for the crew that was flying the 21st. So, yes, I can say it. I cannot say when, but I can say that the mention of a small and overcrowded vessel would have occurred sometime in an ASTJIC report on the 20th. Senator JACINTA COLLINS-From your end, what would constitute a safety of life at sea situation? Air Cdre Byrne-A report from AusSAR or the Australian Maritime Safety Authority or anything that we receive from any other party which would indicate that there was a safety of life at sea situation and anything that we would have picked up airborne. I cannot think of anything else. Senator JACINTA COLLINS-If we were to ask the Federal Police, hypothetically, if they were aware that there was a vessel of the standard 20-metre length with more than 400 people on board and it was a confirmed departure, would you agree that for them that would constitute a SOLAS situation? Air Cdre Byrne-No, I do not know. I do not know what a 20-metre vessel with 400 people on board looks like, to be frank. Senator JACINTA COLLINS-You would be relying on the assessments of others? Air Cdre Byrne-Yes, I would have to rely on the assessments of others. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2179 Senator JACINTA COLLINS-If a safety of life at sea situation had been clearly announced from one of the other agencies providing you with information, how would the MPG have responded? What would you have done? Air Cdre Byrne-We would have taken the most appropriate action depending upon the information that was provided to us. For example, if a last known position had been provided to us, we would then have launched an aircraft and undertaken a search pattern appropriate to the safety of life at sea incident. Senator JACINTA COLLINS-If for instance on the 20th the assessment had been reached that there had been a SOLAS situation, if you had been apprised of the departure point as a confirmed departure, the destination point and the likely travelling speed, would you have gone directly to that point to look? Air Cdre Byrne-If we had known that there was a safety of life at sea incident, we would have taken appropriate action, yes. Senator JACINTA COLLINS-In relation to some of the survivors' reports, if a P3 had flown over the survivors in the water, would they have been likely to have heard it-taking into account the weather conditions as well at the time? Air Cdre Byrne-If it had gone straight over the top, I would have thought so. Senator JACINTA COLLINS-Right. Even in inclement weather? Air Cdre Byrne-Perhaps if they were in cloud- Senator JACINTA COLLINS-You were up that night. Air Cdre Byrne-I really cannot categorically say so, but I would think that somebody who had an aircraft of the P3 type overfly them at 1,000 or 1,500 feet would probably see it or hear it. Senator JACINTA COLLINS-Was that the height that you were flying at? Air Cdre Byrne-Generally, the searches were at 1,000 feet and definitely below cloud and the cloud was 1,000 to 2,000 feet over that period. Senator JACINTA COLLINS-I appreciate that you have taken on notice the issue of why the information you received from ASTJIC was not immediately disseminated to the crew that were in the area, but I want to look at the timing in that regard. If the report came through three hours before they went off task then they were actually in that north-west sector-the area where some people have been hypothesising the ship sank. It is critical to ascertain why that information was determined not to be relevant to the crew in the area at the time. Is there anything further you can say to us at this stage or do you need to take it on notice? CERTAIN MARITIME INCIDENT CMI 2180 SENATE-Select Tuesday, 30 July 2002 Air Cdre Byrne-The ASTJIC int rep of 20 October was posted to the ASTJIC web site at the time that I indicated at 20.00.01z. I cannot advise when the int rep was read at the Learmonth detachment, but I can advise that the P3 flight for 20 October would have been under way at that time. Senator JACINTA COLLINS-We understand that but why wasn't the information conveyed to the crew in the air? I am assuming you have radio contact. Air Cdre Byrne-You would have to determine, once you read it, that there was a reason to pass it to the aircraft. Senator JACINTA COLLINS-That there was a significant cue in it, for instance? Air Cdre Byrne-I think, in fact, what it would say is that it was a small and overcrowded vessel. All of the vessels are small and all of those vessels had been overcrowded at some point-it is just that there are varying levels of being overcrowded. That is the only assumption I could make at the time, but I cannot speak for the intelligence personnel who were putting together those int reports, particularly at ASTJIC. Senator JACINTA COLLINS-No, but you can take that issue on notice. Air Cdre Byrne-I will take it on notice, Senator. Senator JACINTA COLLINS-I can understand if the answer is that there was insignificant information from ASTJIC but, from our end, we are tracing information that came from the AFP indicating more detail than you seem to understand was the case. Our process needs to sift through how that information came out of the system and if there was some chance that that information could have assisted people still sitting in the water at that point in time. Air Cdre Byrne-Yes. Senator JACINTA COLLINS-The other thing that I would like you to clarify for me is that my recollection of Colonel Gallagher's evidence was that they posted on the web site and made calls about that intelligence report, so it may be that a call had been made directly rather than just simply that the report was posted on the web site. My impression from his evidence was that they posted an immediate report rather than wait for the end of the day, for instance, and they made calls to alert some people at least-DIMA was one of those that was not alerted-to this information. Obviously it would be critical to alert people to that information, particularly the people out there surveilling and looking for the ship, so I would question, if no call had been made, why that was the case, too. Air Cdre Byrne-I will put it to my intelligence people and ask them to work back. Really, my judgment is that a report of a small and overcrowded vessel does not, of itself, indicate a safety of life at sea situation. Senator JACINTA COLLINS-No, I appreciate that. If that is all that the report said, then it does not accurately reflect the report that we understand an AFP officer delivered. That might be the critical issue. You said earlier that the role you saw for yourself here today was defensive. CERTAIN MARITIME INCIDENT Tuesday, 30 July 2002 SENATE-Select CMI 2181 I would suggest that that is far from necessary in relation to the surveillance, but there are- certainly in my mind-some communication issues that I would like to get to the bottom of, such as why it was that certain communication flows had not occurred. I think the last people who sit in the spotlight on that issue are the crews who were out on the aircraft. CHAIR-That concludes our examination of you as a witness, Air Commodore. I understand a colleague of ours, Senator Ludwig, has flown with your wing under the arrangement for members of parliament to experience activity with the defence forces, and he reports to us the very high standard and the professionalism of your wing. I wanted to pass that on to you. Senator Mason, Senator Brandis and Senator Faulkner have left but that is meant as no disrespect to you. If they had not left, they would have missed their planes, and the end of the examination of you as a witness was in sight, so I pass on their regards and thank you for your appearance here. We do not have a listed date for another hearing-this may well be the last formal hearing of the inquiry. I cannot be certain about that, because there are outstanding matters yet to be settled and we are in anticipation of some answers that are on notice as well as other information that has been requested. There is also the possibility of other witnesses being called. With those considerations, on behalf of the inquiry, I take this opportunity to pass on to the officers of the defence forces that have appeared before us and those that have worked with our secretariat in arranging appearances and helping witnesses our thanks and appreciation for the work that has been done. We do appreciate it, and it will make our report and our job in writing the report a lot easier. On behalf of the committee, I pass on our thanks and appreciation. Committee adjourned at 6.45 p.m. CERTAIN MARITIME INCIDENT