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 I wish to also emphasise that the specific detail of events of that time have, to some extent, been superseded in my mind by many other, more recent activities.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, 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.

Cmdr Banks —HMAS Adelaide deployed on 16 July 2001 for a series of exercises to promote 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 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 Island—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 critical 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 Island. 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.

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 vernacular, 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, prepared to provide any necessary but basic humanitarian assistance to calm the unauthorised arrivals. 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 number 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 vocal. 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.

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 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. Vandalism 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 Australian 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 displaying 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 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 believe that one of the press reports was that we pulled the bow off the vessel. I also wish to emphasise 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.

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 contravention of some maritime pollution regulation but I will accept some criticism for that. Photo 26 shows another small child being processed.

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.

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 Australia about media misrepresentation, and at the direction of CJTF 639 and the Maritime Commander, 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 witnessed 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 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 Adelaide 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 involvement 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 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?

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.

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 expressed 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?

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 brigadier 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 misinterpreted 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.

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 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 limited 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.

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 evening, 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 discuss 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 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 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 record 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—

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—

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.

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.

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, 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.

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, 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 Island 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 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 Silverstone 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—

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—

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, behaved 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 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.