I t

Ken Randall Parliamentary Editor

he report of the Senate Select Senator Cook said the hearing program was Committee’s ‘children overboard’ slowed at various points because of delays in the office of Defence Minis ill y documents were wit . For many of those involved, i ate length of time. He raised more questions than it answered and developed between the committee and the invited the Government to support further minister when Senator Hill began to question inquiry, The Government is not likely to the committee’s procedures, refused to accept the invitation. allow certain witnesses to appear and when he challenged the committee’s right to The committee produced a majority report, pursue its inquiries in the manner it thought supported by all the non-government most appropriate. members, the government members produced a vitriolic minority report (which In Question Time before the first hearing, complained about the language of the Senator Hill had attacked the inquiry as ‘a majority) and there were three individual Labor stunt’ and that view ‘seemed to statements offering additional views. inform his approach’.

Every member agreed that no children were Senator Cook said: thrown overboard from the boat in question, A question has hung over this inquiry that it did but there were basic differences about why not and could not address. It is ‘Did the the Government continued to propagate the overboard story and the emotional reaction it opposite view after the facts became known. provoked influence the outcome of the federal election?’ This question invites a number of Majority report subsidiary questions: * If it did influence the outcome would the Committee chair Peter Cook wrote a truth have led to a different result? foreword to the majority report which said Would an appropriate and timely correction that this had been a most unusual inquiry. of the record have changed the direction or Senate inquiries typically reviewed legislation influenced the presentation of the issues in or examined some element of public policy, the campaign? he said. This had been an inquiry into an event and the chain reaction it set off in the Would the credibility of the key players have been affected in the judgment of electors if Australian Defence Force (ADF), the the truth had been uncovered and exposed bureaucracy and the government. outside official channels during the campaign period? What gave the proceedings heightened significance was that the ‘children overboard’ These are not questions about the duty and claim was made and given dramatic media obligation of the government and the public prominence immediately after a federal service to keep the community properly election had been called in which border informed. They are speculative questions that protection and concerns about asylum go to the politics of the ‘overboard’ issue and seekers were central issues... its timing in relation to the federal election.

On the ‘children overboard’ question the The committee’s efforts were aimed at getting Committee had, in reality, been conducting at the truth of the matter so there is an an investigation, one that was expanded accurate public record of the events. Any significantly when the terms of reference judgments about what would have occurred were extended at the start to include other had the ’overboard’ story never seen the light ‘suspected illegal entry vessels (SiEVs)’ apart of day are subjective and for others to make. from SIEV 4 (the ‘children overboard’ boat). He said the outcome of the inquiry raised a This brought into the purview of the inquiry major constitutional issue: the extent to the tragic story of SIEV X and the 353 men, which the parliament is able to effectively women and children who drowned on its scrutinise the actions of the executive. The ill-fated voyage Estimates process gathered a lot of

36 Bulletin of Public ~dmin~strationNo. 106 February 2003 relevant information but ultimately the flaunted); and the good reputations of senior Prime Minister and Cabinet (PM&C), and executive, in the form of the Cabinet, public servants and military officers attacked by through it to the office of the Prime Minister, checked the inquiry’s ability to examine innuendo, their motives questioned on the basis which corroborated the original report that relevant witnesses. of pure conjecture and surmise, and allegations children had been thrown overboard. However, made against them which, in some cases, were on no occasion did the Defence organisation This meant the executive was able to never put to them during the hearing to allow provide definitive advice to PM&C or the inter- exercise its power to prevent full them the opportunity to respond. departmental task force on people smuggling that children were not thrown overboard from parliamentary scrutiny of itself. ‘This is not Any pretence that this inquiry has been SlEV 4 or that the photographs were not of open government. What should be done engaged in an exercise of fact-finding or that alleged incident. about it is now an important matter for analysis cannot survive a dispassionate scrutiny national debate,’ said Senator Cook, of the majority report: it is a document which On 7 November Mr Reith informed the Prime simply cannot be taken seriously. Minister that, at the least, there were doubts about whether the photographs represented Minority report The findings that so upset the minority were the alleged children overboard incident or The minority report from the Government presented under a heading Findings of fact whether they represented events connected members (senators George Brandis, Lib and said: with SlEV 4’s sinking. Qld, Brett Mason, Lib Qld, and Alan Ferguson, Lib SA) also sought to define the No children were thrown overboard from SlEV 4. Despite direct media questioning on the issue, no correction, retraction or communication political landscape up front. A report that a child or children had been about the existence of doubts in connection thrown overboard from SlEV 4 arose from a with either the alleged incident itself or the For 15 hearing days between 25 March and telephone conversation early on 7 October photographs as evidence for it was made by 30 July 2002 the solemn farce of the Senate 2001 between Commander Norman Banks, any member of the Federal Government before Select Committee on a Certain Maritime the Commanding Officer (CO) of HMAS the election on 10 November. Incident created an undignified sideshow in Adelaide and Brigadier Mike Silverstone, Australian politics. Commander Joint Task Force (CJTF) 639, Mr Reith made a number of misleading statements implying that the published In form, the committee’s terms of reference which was established to oversee the photographs and a video supported the original directed it to examine matters of serious operation to deter people smuggling. report that children had been thrown overboard national concern, relating in general to the Air Vice Marshal Alan Titheridge, Head of well after he had received definitive advice to government’s border protection policies, and Strategic Command, passed on the report the contrary. in particular to a specific incident ,.. on 7 to the office of Defence Minister Peter Reith, October last year when an apparently Mr Bill Farmer, Secretary of the Department of The committee finds that Mr Reith deceived incorrect report that asylum-seekers had Immigration and Multicultural Affairs, passed it the Australian people during the 2001 Federal thrown a child or children into the ocean, on to his minister, Phillip Ruddock. election campaign concerning the state of the originally emanating from within the military evidence for the claim that children had been and quickly gaining public currency, became Photographs released to the media on thrown overboard from SlEV 4. something of a cause celebre. 10 October as evidence of children thrown overboard on 7 October were actually pictures It is not possible to make a finding on what In truth, neither the inquiry, nor the majority taken the following day, 8 October, while SlEV the Prime Minister or other ministers had report, have had anything to do with the 4 was sinking. communicated to them about this incident ‘children overboard’, the structure of the due to the limitations placed on this inquiry Australian Defence Force or the Australian By 11 October, the naval chain of command by the order of the Cabinet for ministerial staff Public Service, the ‘’, or any had concluded that no children had been not to give evidence. broader policy issue. thrown overboard from SlEV 4. The Chief of the Defence Force (CDF), Admiral Chris Barrie, The Committee went on to note three ... the ‘children overboard’ inquiry was nothing was informed at the very least that there were ‘unusual aspects’ to the handling SlEV 4. more and nothing less than a political show-trial, of serious doubts attaching to the report. driven by the misplaced sense of self-righteous The vessel was identified and intercepted on outrage by the Australian Labor Party at its On October 11, Mr Reith and his staff were the afternoon of 6 October 2001. That evening, defeat at the 2001 Federal elections. separately informed that the photographs were a “special arrangement” was put in place in not of the alleged children overboard events, At the time the inquiry was established, Labor order to meet a request from Mr Reith that he but of the foundering of SlEV 4 on 8 October. Party politicians made extravagant claims be briefed early on the following morning with attacking the integrity of the Prime Minister, the latest news on SlEV 4. On or about 17 October Admiral Barrie informed senior ministers and their staff-and, by Mr Reith that there were serious doubts about The arrangement implemented by Defence to innuendo, the reputations of some of this the veracity of the report that children had been meet this request was for the Commander of nation’s most distinguished military officers thrown overboard from SIN4. the HMAS Adelaide to speak to his superior and public servants. officer, Brigadier Silverstone, at a prearranged On 7 November Air Marshal Angus Houston, time early on 7 October 2001 and for Brigadier If there were any doubts about the preordained who was acting CDF, informed Mr Reith that political agenda of this inquiry, they must Silverstone in turn to communicate the content children had not been thrown overboard of that discussion to AVM Titheridge. entirely disappear when the extraordinary from SlEV 4. language of the majority report is considered. The conversation between Commander Banks On four other occasions the lack of, or dubious In a manner for which we can find no precedent and Brigadier Silverstone occurred in the nature of, evidence for the ‘children overboard’ middle of an operationally hectic period for the in the history of the Senate, ‘findings’ about the report was drawn to the attention of the Adelaide, and it was from this conversation that truthfulness of individuals are asserted which are minister or his staff by officers from Defence. the report that a child or children had been either entirely unsupported by the evidence or, in thrown overboard emerged. Brigadier some cases, at variance with the evidence; lurid On no occasion did the Defence organisation Silverstone told the committee that he would conspiracy theories are intimated (indeed, produce any evidence to the Department of the never have had that conversation had the

Canberra Bufletin of Public Adminis~rationNo. 106 February 2003 37 ‘special arrangement’ not been in place, and Government and senior officials of problems seriously prejudiced. Factors contributing that without that conversation the ‘children with the original story. to these problems included: overboard’ affair would never have occurred. a purist view of the Defence ‘diarchy’ The Committee analyses in particular the which militated against clear, Also on the evening of 6 October 2001, news adequacy of the advice provided by Admiral of the interception of SlEV 4 was leaked to the comprehensive and accurate advice Chris Barrie, then Chief of Defence Force, media. The committee was unable to being provided to the Minister AVM Titheridge, Head of Strategic determine who was responsible for that leak, for Defence but heard from Ms Jane Halton, then chair of Command and the senior Defence the People Smuggling Taskforce, that the usual representative on the People Smuggling the strict control by the Minister’s office practice was not to comment on operational Taskforce. The Committee said it was struck of information related to the operation details while operations were underway, She by the fact that Admiral Barrie, AVM against people-smuggling,which was, she said, surprised that the detail of Titheridge and Dr Allan Hawke, then prevented normal checks and balances SlEV 4 was in the public domain by early in Secretary of the Department of Defence, all and hampered the whole-of-government the morning of 7 October 2001. said they were uncertain until well after the approach to people smuggling The third unusual feature of the handling of election on 10 November that children had ministerial staff inserting themselves into SlEV 4 identified by the committee was the not been thrown overboard from SlEV 4. both the military and administrative ‘heated’ conversation which took place on chains of command, thereby 8 October between Admiral Barrie and the Admiral Barrie and Dr Hawke had said they destabilising proper operational practice Secretary of PM & C, Mr Max Moore-Wilton. knew that the photographs had been and reporting back. Admiral Barrie told the committee that soon wrongly connected with the alleged child an inadequate governance framework after he had been advised that SlEV 4 was throwing incident, but AVM Titheridge within the People Smuggling Taskforce, sinking, he had had a telephone conversation maintained that he had been unaware of with Mr Moore-Wilton, who instructed the which failed to clearly define its even that fact. CDF to make sure that everyone rescued accountability and reporting arrangements went on board HMAS Adelaide and not to with the participating agencies . As a consequence, none of these senior officers provided definitive advice to the the tendency of ministerial staff to act as Admiral Barrie told Mr Moore-Wilton that he Government concerning the veracity of quasi-ministers in their own right, and could not guarantee any such outcome, and reports of the incident, although Admiral the lack of adequate mechanisms to that safety of life was to be the paramount Barrie communicated the fact that there render them publicly accountable for consideration. In this emergency, if people were ‘serious doubts’ about it to Mr Reith. their actions. had to be rescued and landed at Christmas Island that would have to happen. Admiral Admiral Barrie did inform the Minister that The report said the Defence ‘diarchy’ was Barrie said that he had informed the Minister the photographs were being wrongly ostensibly about bringing together the for Defence of this conversation, ensuring that responsibilities and complementary abilities of he understood that the Defence forces were portrayed and Dr Hawke instructed his public sewants and military officials. But not ‘in absolute control of where people would Head of Public Affairs and Corporate end up’. Communication to inform the Minister’s between the CDF and the Secretary, there Office of the same fact. ivide between ‘operational’ The committee found that these unusual features pointed to the likelihood that the The Committee found that AVM Titheridge Government had decided to make an failed to register the importance of clarifying example of SlEV 4, the first boat to be the truth of the report that children had intercepted after the announcement of the been thrown overboard, despite having This view seemed to be more extreme than Federal election. ‘Its handling was to be a twice been directly asked to provide was necessary to enable the CDF to run public show of the Government’s strength evidence and advice on the matter by the without interference. It on the border protection issue.’ It said: chair and another member of the People of interactions needed to e Defence’s mission ‘to Smug gI i ng Tas kfo rce . It is in this context that one might best nd its interests’, especially understand why the Secretary It said Dr Hawke was remiss in failing to overnment perspective wanted to ensure that the asylum seekers press Minister Reith on the question of involved not set foot on Australian territory. It is also in this context that it is possible to whether he intended to correct the public understand why it may have been thought by record in relation to the photographs. the Government to be politically difficult to correct or retract claims made in relation to The Committee majority report said that the passengers aboard SlEV 4 once they were many of the questions and concerns that ere properly the responsibility suspected or known to be false. animated the inquiry arose from is applied notwithstanding considerations of accountability. Key that Dr Hawke knew about the features of the management and Role of senior officers in misrepresentation of the photographs, and distribution of information about the the absence of corroborating evidence in the Australian Defence ‘children overboard’ incident and its Defence intelligence material and reports. Organisat ion aftermath stood out as inimical to the transparency, accuracy and timeliness The diarchy is not an end in itself. It is meant to A third feature of the ‘children overboard’ necessary for proper accountability. facilitate accuracy, timeliness and accountability. affair highlighted by the Committee relates It is certainly not meant to be an impediment to to the role played by senior officers in the As a consequence, fair dealing with both full and frank advice going to the minister, said Australian Defence Organisation in advising the public and the agencies involved was the report.

38 Canberra Bulletin of Public A~~~nis~at~nNo. 106 February 2003 The Committee noted that none of the boat movements was a particular The Taskforce ministers closely involved in the ‘children problem for intelligence analysts. It was The Committee said it had examined the overboard’ affair appeared to have taken any common for intelligence to report operations of the People Smuggling action to reprimand or discipline advisers or vessels as departing , only for Taskforce in the light of all contemporary officials who performed inadequately or it to emerge later that the vessels were notions of public sector accountability, The inappropriately. It was reasonable to infer, delayed, had moved to another port or saga of ‘children overboard’ had revealed therefore, that they had acted with ministerial turned back due to weather conditions, ‘quite starkly’ some of the vulnerabilities to approval and that the government was not mechanical failure or other reasons. w h ic h w hole-of - g over nmen t approaches displeased with their conduct. 3, Intelligence played a limited role in daily were subject, operational decisions. Surveillance and SlEV X interception strategy was built on the As the value and frequency of such assumption that intelligence could not The committee report devoted two chapters approaches increases, more intense be counted on to provide detailed to the matter of the SlEV X. becomes the imperative that they be warning of SlEV departures and arrivals. conducted in a robust and coherent way. At about midday on October 2001, a day 19 The Committee found that there were The participating agencies must be effective after departing Indonesia bound for Christmas collaborators without putting at risk their Island, a vessel organised by people smuggler several gaps in the chain of reporting of discrete responsibilities. This inevitably Abu Qussey and laden with nearly 400 people intelligence, but that even if it had been means adjustments to ‘business as usual’, foundered. Close to 24 hours later two functioning optimally, it was unlikely that the and such adjustments must be understood, Indonesian fishing boats picked up 44 Australian response to SlEV X would have accommodated, and communicated within survivors; 352 people drowned when the boat been different. The committee found no each agency. now known as SlEV X sank. grounds for believing that negligence or dereliction of duty was committed in relation The Committee said it did not question the During the Committee’s inquiry, serious to SlEV X. questions were raised about the extent of integrity of the individual participants on the ’s responsibility for and response to the However, it said, it was disturbing that no Taskforce, but found substantial tragedy of SlEV X. In particular, the following review of the SlEV X episode was weaknesses in its basic administrative questions were posed: conducted by any agency in the aftermath operations, including record keeping, risk e whether Australian agencies could have of the tragedy. ‘No such review occurred management and reporting back. found and rescued the vessel before it sank; until after the committee’s inquiry had

e whether Australian agencies could have started and public controversy developed Ministers’ offices rescued the passengers and crew of SIEV X over the Australian response to SlEV X.’ from the water; and The report said the inquiry had highlighted ...the committee finds it extraordinary that a an accountability ‘vacuum’ at the level of whether the fact that no specific search and major human disaster could occur in the vicinity ministers’ offices. It appears to be partly a rescue operation was mounted for SIEV X of a theatre of intensive Australian operations, result of the increased size of ministers’ was evidence either of intelligence failure or and remain undetected until three days after staffs, but more significantly, the evolution of negligence in relation to the welfare of the the event, without any concern being raised vessel’s passengers and crew. of the role of advisers to a point where they within intelligence and decision making circles. appeared to enjoy ‘a level of autonomous The Committee said that in evaluating the The Committee recommended that executive authority separable from that to Australian response to the SlEV X episode, operational orders and mission tasking which they have been customarily entitled it took note of three important factors: statements for all ADF operations, including as the immediate agents of the minister’. those involving whole-of-government It went on to observe: 1, The operational climate surrounding SlEV X involved reports of a ‘surge’ in approaches, explicitly incorporate relevant international and domestic obligations. While ministers and public servants regularly possible arrivals in the people smuggling account for their actions directly to parliament pipeline, with up to six vessels expected and by appearance before its committees, to leave Indonesia in close succession. Commentators and this is not the case for ministerial advisers. In The build-up of people and boats led to conclusions the past, it has been generally accepted that an expansion in Australia’s disruption Whether this whole, extraordinary affair will advisers’ accountabilities are rendered via campaign within Indonesia. It would also produce positive results is doubtful. ministers, it being understood that advisers have translated into increased Government ministers and members have act at the direction of ministers and/or with intelligence traffic on potential boat and taken every opportunity in Parliament to their knowledge and consent. This seems to people arrivals, with a corresponding deride and ridicule the report and, indeed, be no longer a legitimate assumption, increase in the burden for intelligence staff sifting through incoming reports. the whole inquiry. The Committee said two courses of action 2. The intelligence received on possible Writing in the November issue of The Public were needed to resolve these issues. The boat arrivals from Indonesia was Service Informant section of the Canberra first was to bring ministerial advisers within imperfect and treated with caution. Times, Dr Jenny Stewart, Associate the scope of parliamentary committee Intelligence sources were often Professor in Public Sector Management at scrutiny, in a manner similar to that unreliable and difficult to corroborate. the University of Canberra, said it would be applying to public servants. The second The intelligence itself was of uneven a pity if the Government paid no attention to was a Code of Conduct and Set of quality, marred by contradictory the findings and recommendations on Values for ministerial advisers within a information and tended to inflate the ministerial advisers and the management of legislative framework. numbers of expected boats. Tracking inter-departmental committees.

Canberra Bulletin of Public ~d~inistrationNo. 106 0 February 2003 39 She said the need for better control of and process. The failings suggested that There are still suggestions that there may ministerial advisers had been apparent for ‘...in these days of managerial slickness be action in the Senate to pursue the a long time, even if successive ministers and political savvy, some basic principles SlEV X matter further, particularly those thought it was smart to perpetuate which should be part of every public aspects dealing with the impact of ambiguity, Eventually, she suggested, servant’s professional tool kit are likely Australian-sponsored action within ministers were likely to find they were not Indonesia to disrupt people smuggling. to be forgotten or pushed aside when well served ‘by having people working for conditions become turbulent’. them who are authorised to act in their The matter took on added piquancy during name, but have neither the skills nor the the November Senate estimates hearings Unsurprisingly,in a letter publishedby the experience to exercise their roles properly.’ when it became known that the Australian Financial Review on October 29 Commissioner of the Australian Federal Police And despite the increasing importance of Peter Reith said the Committee’s report was Mick Keelty had asked to be released from inter-departmental committees, the inquiry ‘Labor’s report’ and the Committee was any obligation to answer questions about AFP had shown a worrying lack of structure guilty of abuse of process. tracking of people-smuggling boats,

Membership of the Committee Senator Andrew Bartlett, Qld, Democrat Senator Alan Ferguson, SA, Liberal Senator Peter Cook, Chair, WA, Labor Senator Jacinta Collins, Vic., Labor Senator Brett Mason, Qld, Liberal Senator George Brandis, Deputy Chair, Qld, Liberal Senator John Faulkner, NSW, Labor Senator Shayne Murphy, Tas., Ind.

Terms of Reference (iii) Federal Government control of, and use the detention within those countries of The Select Committee on a Certain Maritime of, information about the incident, persons intercepted while travelling to Incident was appointed to inquire into and report including written and oral reports, Australia, publicly known as the ‘Pacific on the following matters: photographs, videotapes and other Solution’: images, and the role of Federal 0 the nature of negotiations leading to those (a) the so-called ‘children overboard’ incident, Government departments and agencies in agreements, where an Indonesian vessel was intercepted reporting on the incident, including the by HMAS Adelaide within Australian waters Navy, the Defence organisation, the 0 the nature of the agreements reached, reportedly 120 nautical miles off Christmas Department of Immigration and 0 the operation of those arrangements, and Island, on or about 6 October 2001 ; Multicultural Affairs, the Department of the 0 (b) issues directly associated with that incident, Prime Minister and Cabinet, and the Office the current and projected cost of those including: of National Assessments, and arrangements.

(I) the role of Commonwealth agencies and operational procedures observed by the personnel in the incident, including the and by relevant Australian Defence Force, Customs, Commonwealth agencies to ensure the safety Coastwatch and the Australian Maritime of asylum seekers on vessels entering or Safety Authority, attempting to enter Australian waters.

(ii) the flow of information about the incident in respect of the agreements between the to the Federal Government, both at the and the Governments time of the incident and subsequently, of Nauru and Papua New Guinea regarding

40 Canberra Bulletin of Public Administratjon No. 106 February 2003