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Regional Processing Centre in Nauru
20/08/2015
Commonwealth government's responsibilities relating to the management and operation of the Nauru Regional Processing Centre

DAY, Mr Harry, Solicitor

NICHOLS, Mr Jonathan, Private Capacity

Committee met at 15:30

CHAIR ( Senator Gallacher ): The time being 3.30 pm, I declare open this public hearing of the Select Committee on the Commonwealth government's responsibilities relating to the management and operation of the Nauru Regional Processing Centre.

I welcome you all here today. This is a public hearing, and a Hansard transcript of proceedings is being made. The committee prefers to hear evidence in public. We may, however, agree to take evidence confidentially if it is relevant. The committee may publish confidential evidence later, but we will try to ask before doing this.

It is important that witnesses give the committee notice if they want to give evidence in private. In addition, if the committee has reason to believe that certain evidence may reflect badly on a person, the committee may direct that the evidence to be heard in private. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege.

It is against the law for anyone to threaten or disadvantage a witness because of evidence given to a committee. If they do, the action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. Witnesses should be aware that if in the giving of their evidence they make adverse comment about another individual or organisation, that individual or organisation will be made aware of the comment and will be given a reasonable opportunity to respond to the committee. If a witness objects to answering a question the witness should state the grounds of the objection, and the committee will determine whether it will insist on an answer.

The committee has agreed to the presence of media in this public hearing. However, if a witness has any objection or if the presence of the media interferes with proceedings, the committee may decide to restrict this access.

On behalf of the committee, I would like to thank witnesses here today for their time and cooperation. I welcome Mr John Nichols. Information on parliamentary privilege and protection of witnesses and evidence has been provided to you. However, I want to remind you that in giving evidence to this committee you are protected by parliamentary privilege. It is against the law for anyone to threaten or disadvantage you because of that evidence. If they do, that may be treated by the Senate as a contempt. I now invite you to make a short opening statement, and then after you have spoken I will invite members of the committee to put questions to you.

Mr Day, do you have any comments to make on the capacity in which you appear?

Mr Day : I am a solicitor and I am here to assist Mr Nichols today in his giving of evidence to the committee.

CHAIR: Mr Nichols, would you like to make an opening statement?

Mr Nichols : No, but I would like to thank the committee for the opportunity to come here to give an honest account of what I have seen and heard.

CHAIR: I will open up with a series of questions put by Senator Carr who, unfortunately, is not able to be here. In your submission, you make claims that asylum seekers were waterboarded at Nauru RPC. Given all the other distressing allegations that have been made as part of the Moss review and this inquiry, why do you think this is the first time these allegations have been made?

Mr Nichols : I do not know why other people have not come forward in relation to this, but I am happy to be the first.

CHAIR: Did you raise your concerns regarding this practice with your supervisor?

Mr Nichols : Yes, these matters were raised with my direct supervisor.

CHAIR: So Wilson's management were made aware of the allegations?

Mr Nichols : I am not sure about senior management, but definitely the management that was on the ground.

CHAIR: So at supervisor level?

Mr Nichols : Yes.

CHAIR: How many other people were involved in this alleged practice?

Mr Nichols : I am not too sure of the exact numbers. I can only relate what I have seen and what I have heard.

CHAIR: How many times are you aware of that this occurred?

Mr Nichols : Two or three occasions.

CHAIR: Who conducted the alleged waterboarding and who was the subject of the torture?

Mr Nichols : Members of the ERT, and they conducted it against members of the Palestinian community that was on Nauru—refugees.

CHAIR: To your knowledge were children, minors, ever subjected to waterboarding or to 'zipping' to metal beds?

Mr Nichols : I have no knowledge of any children being dealt with in that way.

CHAIR: Point 12 of your letter from your lawyer states:

Wilson Security’s most senior management have lied to; misled or otherwise given incorrect evidence to the Committee, noting our client has read part of Hansard and disagrees with some crucial evidence—our client states 'They have heard the truth according to Wilsons' …

So could you outline the matters Wilson have lied, misled or otherwise given incorrect information on?

Mr Nichols : Certainly. With regard to the drug and alcohol testing on Nauru, I was approached by a person known to me to actually help instigate drug and alcohol testing, given my background in OH&S. There was no drug and alcohol testing on Nauru—period. I believe it has since been instigated, in July.

Senator HANSON-YOUNG: This July just past?

Mr Nichols : That is correct. Prior to that there was no drug and alcohol testing at all. The alleged whistleblower hotline—I worked in the control room on Nauru, which has a list on the wall of all active phone numbers for anything in Nauru. There is no phone number.

CHAIR: I think the evidence was that it came up on everyone's login screen on their computer.

Mr Nichols : Certainly not on Wilson's computers. I logged onto a Wilson's computer every day when I went on shift when I worked in the control room, and certainly there is no background of a whistleblower hotline or anything to that effect. Certainly I was not advised that there was a whistleblower hotline as part of my training. Never did I hear of it.

CHAIR: So is the alleged misrepresentation in your view the alcohol and drug testing and the hotline?

Mr Nichols : And in addition to that, the shredding of evidence. I myself have, at the direction of my employer, shredded evidence.

CHAIR: On the direction of who?

Mr Nichols : My employer—my direct supervisor, a person whose name I am happy to provide. I have shredded documents.

CHAIR: So you would complete a shift and do some notes on the activities in that shift, and you were instructed to shred that evidence?

Mr Nichols : No—these are incident reports that were filled out by external parties, other stakeholders on the island, which were then provided to the control room. Each of those incident reports has to be signed off by the Wilson Security shift supervisor. They were then brought to the control room, where I would log them on the electronic system, and at times I have been instructed to shred them.

CHAIR: So the stakeholders would have been—

Mr Nichols : They would be none the wiser.

CHAIR: Save the Children?

Mr Nichols : Yes. Save the Children, Transfield Services—

CHAIR: Salvation Army?

Mr Nichols : Not Salvation Army. I worked in the control room after Salvation Army had been removed from the island.

CHAIR: So there were direct, logged reports that were shredded at the instruction—

Mr Nichols : They never made it to be logged. They were shredded before they were actually electronically logged.

CHAIR: Do you remember their detail or content?

Mr Nichols : Off the top of my head, no. I could not be specific.

Senator HANSON-YOUNG: How regular would this have been?

Mr Nichols : It could be once or twice a week, maybe once or twice every two-week rotation.

CHAIR: So those three items—alcohol and drug testing, the whistleblowing hotline and the shredding of reports—are the extent of the alleged misleading of the committee? Those are the three items you are aware of?

Mr Nichols : Yes, those three items certainly.

CHAIR: Regarding Wilson Security's workplace culture, do you believe that there is a fundamental problem with workplace culture within Wilson and the contract to provide security within detention facilities?

Mr Nichols : Without a shadow of a doubt.

CHAIR: What is your evidence of that?

Mr Nichols : There is a strong culture of what has often be referred to as RAR, Royal Australian Regiment. A lot of the staff over there are ex-military—whether it be the New Zealand Defence Force or the Australian Defence Force—and a lot of them still harbour the hatred towards whom they perceive to be the enemy, which are the people that they are supposed to be providing care for.

CHAIR: Do you think that Wilson appropriately screen staff during the recruitment process to ensure that they are suited to work in this environment?

Mr Nichols : Not at all. I can only speak from my own personal experience of the screening process. I was subjected to a police check, as was everyone else. I was never scrutinised for suitability to work with children. I was certainly never asked if I had a blue card or a suitability card. As far as my background in the military, I do not know whether they looked into that or not.

CHAIR: You have a service background?

Mr Nichols : I do indeed, yes.

CHAIR: Finally, in your submission, you made claims of verbal and physical abuse of asylum seekers at random?

Mr Nichols : Correct.

CHAIR: Can you provide examples to the committee?

Mr Nichols : Yes, certainly. In the mess area at RPC2 the asylum seekers are required to provide their ID card and their boat numbers are checked off against the meal sheet. I have seen with my own eyes times when the asylum seekers have forgotten to bring their identification card with them and they have been verbally harassed. They have been bullied, subjected to a thug-like approach by members of security and sent back to their accommodation to retrieve their card. They have basically outlined to them that they are aware of the rules, 'You should follow the rules. This is our centre, not centre,' and words to that effect.

CHAIR: Would the guards not know the people, or would they be familiar with the people?

Mr Nichols : The guards would, I would imagine, be familiar with the people, given the fact that the guards work in the same centre. If you are rostered to work at RPC2, you work at RPC2. If you are rostered to work at the family camp, RPC3—

CHAIR: So how many people would be in RPC2?

Mr Nichols : In RPC2 itself, in Alpha, Brava and Charlie compound, currently, maybe 300 or 350. When I left island in June, I think the island total was around 760.

CHAIR: The allegation is that if people did not have their boat number and ID card, they would be sent away to get that before they got any food.

Mr Nichols : Yes. It is the way that they were spoken to in a derogatory form, spoken down to, belittled and just verbally harassed by members of staff—of security.

CHAIR: Do you have any other examples?

Mr Nichols : Off the top of my head, I cannot think of any. I am sure that I can take the question on notice and provide more.

CHAIR: Was any of this ever reported?

Mr Nichols : It is difficult to report things when it is your direct supervisors that are engaging in this behaviour.

CHAIR: So it is clear that, for a lot of this, if someone was uncomfortable with it, they did not report it, because it was their supervisors that were doing it?

Mr Nichols : That is correct, yes.

CHAIR: Thank you, Mr Nichols.

Senator HANSON-YOUNG: Thank you, Mr Nichols, for appearing today. A number of the allegations that you outline in your submission to the committee are obviously very serious in their nature. I want to go back to the issue of the allegations that you make about waterboarding and zipping. You have said two or three times you are aware that this has occurred—that waterboarding has occurred. Can you describe how you know this or what you saw?

Mr Nichols : I have seen members of the ERT exit tanks and later I have seen asylum seekers come out of the tanks covered in water and coughing. I have heard members of the ERT boast and brag about how they have waterboarded people, and it has never come out up until now.

CHAIR: The ERT is the emergency response team, is it?

Mr Nichols : That is correct.

CHAIR: What are its normal duties? What is it supposed to be doing?

Mr Nichols : Its normal duties are to provide an emergency response in case of unrest in the centre.

CHAIR: How often does that happen?

Mr Nichols : Do you mean unrest in the centre? It depends on what you define as unrest. The ERT would randomly come down and avail themselves to staff on the ground, if we were short on numbers or whatever. Most of the time they sat down and watched TV.

CHAIR: For probably days and weeks at a time.

Mr Nichols : Yes, it was a common thing to make an acronym out of ERT which was 'Eating, Relaxing and Texting'.

Senator HANSON-YOUNG: At the beginning, you said that waterboarding had been reported to your supervisor. What was their response?

Mr Nichols : I am not too sure about what they actually did after I reported it.

Senator HANSON-YOUNG: What I am saying is, what was their response to you in relation to that?

Mr Nichols : I think they took it as a jovial thing and I do not think they took it seriously.

Senator HANSON-YOUNG: Do you have any knowledge as to whether that was ever officially logged?

Mr Nichols : I do not believe it was.

Senator HANSON-YOUNG: In relation to the issue of zipping, can you explain to the committee how you know about that? You have described it in quite a bit of detail. Did you see that occur yourself?

Mr Nichols : I did not actually see the action occur but I have had numerous conversations with people known to me with regard to it: that members of the ERT had secured asylum seekers to their beds with zip ties, cable ties, and thrown them into the air. This occurred after the riots. Personally, I believe it to be retribution.

Senator HANSON-YOUNG: Was that discussed in a relaxed fashion or was it whispering?

Mr Nichols : No, it was discussed in a known confession. The ERT would quite often attend, what is commonly known as, Bravo 1—the entrance to the Bravo compound—because it had pay TV. They would quite often attend and talk openly—

Senator HANSON-YOUNG: With the other guards?

Mr Nichols : Yes. With the other guards about things that had occurred and things that they planned on doing, whether it be going out to Julesto drink or whatever the case may be.

Senator HANSON-YOUNG: A number of the other allegations that you made in your submission have been corroborated in other evidence that we have had from other witnesses and submissions. How did you feel when you were asked to shred information detailing incidents?

Mr Nichols : I questioned it inside my own head. I thought, 'Hang on a minute, this can't be right,' but I did it at the direction of my superviser. I thought, 'He knows better than I do.' So, yes, I shredded the documents.

Senator HANSON-YOUNG: Was it regularly accepted by other members of the control room that that was part of their job?

Mr Nichols : I have certainly witnessed other members in the control room do the same thing. The shredder is commonly referred to as 'file 13'.

Senator LUDLAM: The shredder was referred to as file 13.

Mr Nichols : That is correct.

Senator HANSON-YOUNG: Following up from Senator Gallacher's questioning about senior management having lied to or misleading us as a committee, how did that make you feel, if you believe that they have misled us based on what you have seen for yourself?

Mr Nichols : Frustrated, disillusioned with the company and annoyed at myself as an Australian and being part of a company that was subjecting people to this. It is not right.

Senator HANSON-YOUNG: Do you think there are others like you who feel like that?

Mr Nichols : I do indeed, yes.

Senator HANSON-YOUNG: When did you take up working in the Nauru detention centre?

Mr Nichols : I started there on 19 September 2013.

Senator HANSON-YOUNG: So you have worked there for nearly two years?

Mr Nichols : That is correct.

Senator HANSON-YOUNG: Has the culture changed at all? Has it got better or worse?

Mr Nichols : To some degree, it has got a little better. The belittling of the Salvation Army and so forth and the snide comments regarding them being 'bleeding hearts' have stopped, obviously, since they have left. But I still believe it is very much a culture of hush. It certainly has the element of a military-style operation, for lack of a better term, in the fact that everything is kept quiet.

Senator HANSON-YOUNG: There was a newspaper report this morning that was based on another whistleblower's account in relation to, effectively, the framing of an asylum seeker so that he would go to court, be charged and not get access to any type of resettlement options in Australia. Did that report surprise you? First of all, have you seen it? Do you know what I am referring to?

Mr Nichols : I have not seen any media coverage; however, I have had a conversation with the individual in question, where he relayed exactly that to me.

Senator HANSON-YOUNG: That type of attitude doesn't surprise you? It seems to be in line with the general culture that you have described.

Mr Nichols : That is correct, and he is certainly not the only one. In my submission, I outlined another individual who did exactly the same thing.

Senator HANSON-YOUNG: This is in relation to the asylum seeker who was thrown off a balcony?

Mr Nichols : No.

Senator HANSON-YOUNG: The one who bashed themselves in the face?

Mr Nichols : No.

Senator HANSON-YOUNG: Oh, so there are two more then.

Mr Nichols : There is the Jules incident and then there is another incident involving an asylum seeker in the Bravo compound who was assaulted quite openly by a member of the ERT—and that is in my submission. Exactly what Wilson's response is to that, I am not too sure.

Senator HANSON-YOUNG: How do they decide who gets to be in the emergency response team?

Mr Nichols : A test took place where they had to run a certain distance, do a certain number of push-ups, do a swim test and so on and so forth.

Senator HANSON-YOUNG: So it is based on a physical, robust nature?

Mr Nichols : That is correct. Yes, very much so.

Senator LUDLAM: I have a couple of questions that relate to the submission that you made to us. Thanks, Mr Nichols, for coming in; I suspect this is not easy, and it is greatly appreciated. Getting some of this stuff on the record is probably the most important thing we can do at this time. My questions relate to parts 8 and 9 of the submission that you put to us, through Mr Day, that go specifically to surveillance of Senator Hanson-Young while she was on Nauru. I do not know whether you have had time to review the evidence that was provided to us by Wilson Security a couple of weeks ago when they were here. They insisted that the only thing that occurred, at the time of Senator Hanson-Young's visit a couple of Decembers ago, was two guys watching her car while it was in a car park overnight at the hotel. Your evidence directly contradicts that. If it is okay, I would just like to take you back through this. You were working on the island at the time, weren't you?

Mr Nichols : That is correct, yes.

Senator LUDLAM: You were. Could you take us back through what you knew at the time, and I am specifically interested, I guess, in a number of items in Wilson's evidence that just does not stack up; we are trying to tease out what actually happened. Can you recall who told you that he or she was instructed by Mr Kahika to film Senator Hanson-Young—not her car but her private person—while she was on the island?

Mr Nichols : A member of the ERT, whose name I am happy to provide.

Senator LUDLAM: You can put that on the record right here, if you like. You are covered by parliamentary privilege.

Mr Nichols : It was Louie Davies, who was a member of the ERT. He openly sat there with me and even showed me footage on his mobile phone.

Senator LUDLAM: I will come to that in a second. What role did he perform on the ERT?

Mr Nichols : He was just a member of the ERT.

Senator LUDLAM: Just an ordinary member—not a supervisor?

Mr Nichols : Just an ordinary member of the ERT.

Senator LUDLAM: How big is the ERT, as a general rule?

Mr Nichols : There are four teams. In essence, I think, it goes out to six bricks of ERT. But there are four teams, whether that be Team 2 Alpha, Bravo, Charlie, or Delta.

Senator LUDLAM: How many personnel in total?

Mr Nichols : That I could not tell you, but possibly six or eight members per brick.

Senator LUDLAM: So maybe 24 to 30 in the total complement.

Mr Nichols : That is correct. That would be a fair assumption, yes.

Senator LUDLAM: So Mr Davies told you that he was instructed—this was not the fellow giving the orders—by Mr Kahika to film Senator Hanson-Young. Can you just go through, as best you can recall, what they told you?

Mr Nichols : We sat at Bravo 1. Louie was quite well known for bringing his mobile phone into the centre; I am sure there are incident reports that will attest to that.

Senator LUDLAM: As long as they were not in file 13.

Mr Nichols : Correct, Senator. He was quite open about the fact that they had filmed Senator Hanson-Young, and was more than happy to show people the footage that he had on his phone. I viewed that footage and firmly believe that it was Senator Hanson-Young walking across the car park at the Menen Hotel and in the front door.

Senator LUDLAM: And it looked like it had been shot—

CHAIR: At that point, was that on instruction or was that someone taking unauthorised action?

Mr Nichols : That I do not know.

Senator LUDLAM: And from what kind of distance? What we were told was that these guys were parked in cars in the car park, basically overnight. They did a full shift out there. Is that kind of consistent with how it looked?

Mr Nichols : That is correct.

Senator LUDLAM: We have also been told that the phones that are issued to security personnel on the island do not even have cameras; they are old model Nokias.

Mr Nichols : The ones they are issued now are. The ones previously were iPhones.

Senator LUDLAM: Do you know when that transition happened?

Mr Nichols : Sometime in 2014.

Senator LUDLAM: Well after Senator Hanson-Young's visit, then.

Mr Nichols : Well after the senator's visit, yes.

Senator LUDLAM: Were you shown it on an iPhone?

Mr Nichols : Yes.

Senator LUDLAM: And you have no reason to believe that that would not have been the device that it was recorded on?

Mr Nichols : I do not know whether it was recorded on that device or recorded on another device and sent to that phone.

Senator LUDLAM: Yes, that is possible. Do they issue the security staff with GoPros or any other recording devices?

Mr Nichols : Yes, they do.

CHAIR: Just to be clear: Wilson has changed the issued phones from phones capable of taking a video or a photo to phones not capable of photography or video?

Mr Nichols : That is correct.

CHAIR: In 2014?

Mr Nichols : That is correct.

CHAIR: When that happened, was there a memo or an instruction?

Mr Nichols : It came after they sort of clamped down on people taking their mobile phones into the centre. I believe that was due to some pictures being—

CHAIR: Facebook?

Mr Nichols : Yes, being put on Facebook or provided to the press.

Senator LUDLAM: The written evidence you have given us actually indicates that the surveillance was much broader than simply observing a car—Senator Hanson-Young travelling to and fro in the car park. You have said:

… Wilson Security Management ordering ERT members to follow and film Senator Hanson-Young during her entire visit to Nauru.

Could you maybe give us a bit more detail? What did that involve, apart from that overnight surveillance of the vehicle?

Mr Nichols : I can only relay what I was told, and that was that they were to film or observe the senator wherever she went.

Senator LUDLAM: That implies—unless there is a tracking device on the car—vehicle pursuit.

Mr Nichols : It could do, yes.

Senator LUDLAM: Being followed in a car?

Mr Nichols : Yes, it could do.

Senator LUDLAM: How many people would have been involved in doing that well? In surveilling somebody for three straight days while she moved about an island, how many people do you need?

Mr Nichols : Certainly there are two shifts involved in that. ERT, like us, only work a 12-hour shift, so it would have been day shift, night shift. Given the fact that we were on island for the whole of the visitation, I would say it is the same two shifts.

Senator LUDLAM: They had three full days?

Mr Nichols : Yes.

Senator LUDLAM: Your evidence carries on:

Those that filmed then gloated to other workmates how the Senator was followed and filmed, but she did not know, happy that she did not "twig".

I guess that is one of the first rules of surveillance, isn't it—make sure that the target is not aware that they are being followed around? How many people do you think knew? It makes it sound like it was actually quite common knowledge on the ERT that that was occurring.

Mr Nichols : I would believe that it would have been common knowledge on ERT. There are certainly two people that I can provide names of who can provide more evidence to that.

Senator LUDLAM: I think that could be appropriate. Is there any possibility that the supervisors would not have known that that was going on—that these are all rogue operators?

Mr Nichols : Sorry—that they would not have known?

Senator LUDLAM: Is there any possibility that they would not have known?

Mr Nichols : Not a chance.

Senator LUDLAM: Because otherwise somebody has lied to our faces on this committee.

Mr Nichols : I would say that is a fair assumption.

CHAIR: Mr Kahika is on evidence saying he took responsibility for this unauthorised surveillance. Are you saying that his supervisor knew and was aware of it?

Mr Nichols : No, that is not what I am saying. I am saying that up to Mr Kahika they would have certainly known what was going on. ERT have segregated themselves down to one side of the RPC1 processing centre, where they congregate, which was—

CHAIR: So who do they report to?

Mr Nichols : They report to command 2 and command 1, so the operations manager and the security manager and on.

CHAIR: And they are there 24 hours? There is someone in that role?

Mr Nichols : They are available by phone.

CHAIR: Thank you.

Senator LUDLAM: How much documentation would be created if this were an authorised operation? Incident reports, for example? And what happens to the footage?

Mr Nichols : The footage would go to intel, investigations, for whatever purposes they sought it for.

Senator LUDLAM: So with these folks—at this stage, prior to the changeover, where for some reason they suddenly started issuing you with phones that are 10 years out of date—you would return the phone at the end of your shift, and what would they do? They would download the footage on there? What would they do?

Mr Nichols : No. You would simply hand your phone over to the oncoming shift, and they would take the phone with them.

Senator LUDLAM: Okay. So the phones travel with the shift; they are not assigned to individuals.

Mr Nichols : That is correct. They are not assigned to individuals; the phones go with the shift.

Senator LUDLAM: Let's give these folks the benefit of the doubt, and we will assume that they think they are participating in an authorised surveillance operation of an MP. What would happen—what should happen to the footage?

Mr Nichols : What should happen to it would be that the little SD card, if it were in a GoPro camera, if you like, would be downloaded and the footage reviewed.

Senator LUDLAM: What about the incident reports? Are these classified as 'incidents': 'senator leaves hotel', 'senator arrives at hotel', 'senator has lunch'?

Mr Nichols : I believe it would be classified as an information report.

Senator LUDLAM: Just talk us through where that ends up getting filed.

Mr Nichols : Exactly the same place as an incident report. It is the same document, except that in the incident category it would simply say 'information'.

Senator LUDLAM: If we go to the company's files and ask them to table them, according to their evidence thus far, there should be information around her visits to the detention centre facilities, because that is what you were authorised to do. There should be information around a botched and unauthorised watching of a vehicle overnight in a carpark, and nothing else?

Mr Nichols : If those information reports still exist, yes, certainly.

Senator LUDLAM: Chair, I was aware you wanted me to finish up at four. I might come back if there is time at the end of the session.

CHAIR: No problem.

Senator JOHNSTON: Thank you, Mr Nichols, for coming along. You said you had some military experience. What was that?

Mr Nichols : I was a member of the Royal Australian Engineers.

Senator JOHNSTON: Sapper?

Mr Nichols : Yes, indeed.

Senator JOHNSTON: Very good. How long were you in for?

Mr Nichols : Army Reserve from 2006-07 up to and including 2011, and I believe now I am still on active standby.

Senator JOHNSTON: So a reservist, roughly, since 2006?

Mr Nichols : That is correct.

Senator JOHNSTON: Very good. You commenced work in September 2013 with the company.

Mr Nichols : Yes.

Senator JOHNSTON: When did you part ways with them?

Mr Nichols : I stopped working on 11 June this year, citing health reasons.

Senator JOHNSTON: So you sought to terminate your employment with Wilson's because of your health?

Mr Nichols : Not so much 'terminate'. I sought to go off on sick leave, but, subsequently, I have terminated my employment with Wilson Security.

Senator JOHNSTON: You terminated it?

Mr Nichols : That is correct.

Senator JOHNSTON: When did you do that?

Mr Nichols : Approximately 3 August.

Senator JOHNSTON: Are you in litigation with Wilson's?

Mr Nichols : Not at this point.

Senator JOHNSTON: Do you have a claim against Wilson's which you are pursuing? Has there been an exchange of correspondence between your solicitors and Wilson's?

Mr Nichols : There has.

Senator JOHNSTON: Seeking some recompense.

Mr Nichols : Seeking them to abide by their requirements to provide me with rehabilitation and possible other employment. Yes.

Senator JOHNSTON: And they have refused to do that?

Mr Nichols : That is correct.

Senator JOHNSTON: I am sorry, I did not quite catch that. They have refused to do that?

Mr Nichols : I object to answering any further question on that one. It is irrelevant.

Senator JOHNSTON: I respect your view in that regard entirely. I am very pleased not to continue other than to ask: is it fair to say, as you sit here today, there is an issue that you require legal advice on between yourself and Wilson's?

Mr Nichols : I object to answering that as well.

CHAIR: It is a pretty straightforward question. The answer is obvious. I do not know why you would object to answering it.

Mr Day : With respect, he has a compensation claim going. It is irrelevant to what is going on in Nauru—

CHAIR: No, no. It is for us to decide what is irrelevant. It is just a statement of fact, isn't it?

Mr Day : No, but there has been a link by Wilson's to say that he is making everything up. We have seen it; we have read it.

CHAIR: It is a fair enough question for Senator Johnston. If you do not want to answer it, the conclusion is drawn anyway.

Mr Day : We do not want to answer it. Everyone should know that there are a pile of people lining up around the corner behind Mr Nichols. He is a first. The honourable member for Dickson said this morning that there is one rogue person who has a beef with Wilson's. Well, he is not one; he is the first.

CHAIR: That is not the matter that is here before us.

Mr Day : And there could be 25 people by the time we are finished. So let's make that clear.

CHAIR: Senator Johnston is happy for your answer—

Senator JOHNSTON: I am happy for the witness to retain his confidentiality with respect to matters of a legal nature that he has you sitting next to him for.

Mr Day : He has got a claim going.

Senator JOHNSTON: He admits he has a claim going?

Mr Day : He has made a claim upon the company. It is being pursued, and it will be in the Supreme Court of Queensland in the near future. That is all we want to say for it.

Senator JOHNSTON: That is fine. May I ask since when that claim has been maintained?

Mr Day : I did not bring my file—because I knew this question would come up. But I am guessing about 10 August.

Senator JOHNSTON: Mr Nichols, have you had contact with any members of this committee concerning Nauru?

Mr Nichols : Direct contact with any members? No.

Senator JOHNSTON: Has your lawyer had direct contact, or any contact at all, with members of this committee?

Mr Nichols : I do not know. I cannot answer that, I am sorry.

Senator JOHNSTON: Mr Day, do you want to answer that?

Mr Day : No. I do not want to answer it.

Senator JOHNSTON: You do not want to answer it?

Mr Day : Why should I? I am not here.

Senator JOHNSTON: I am just asking the question.

Mr Day : I am his adviser. I am not a witness. Just like Mr Packer, I appear reluctantly—

Senator JOHNSTON: Well, you are his agent, aren't you?

Mr Day : I am not his agent. I am his assistant. I am not here to give evidence.

Senator JOHNSTON: So you decline to answer the question as to whether you have had contact with any member of this committee other than at a hearing?

Mr Nichols : Personally, myself?

Senator JOHNSTON: Yes. Or your solicitor on your behalf.

Mr Nichols : I certainly have not.

Senator JOHNSTON: Do you know if your solicitor has on your behalf?

Mr Nichols : That I do not know.

Senator JOHNSTON: Your evidence is that waterboarding was conducted throughout the facility. Are they your words or your lawyer's words?

Mr Day : Give me a break! What is the purpose of that question? Honestly—

CHAIR: Excuse me, Mr Day. You can only have one go at this. If you are here to advise your client then I suggest that that is what you do.

Mr Day : We object to the question.

CHAIR: You advise your client and you do not respond directly to the senator's questions. You cannot pick and choose which ones you want to answer. The question is to Mr Nichols. You are free to advise your client on how to answer it.

Mr Nichols : Can you repeat the question, please.

Senator JOHNSTON: In paragraph 1 of your submission, the words 'Waterboarding of asylum seekers throughout the facility' appear. Are they your words or are they the words of your solicitor?

Mr Nichols : I am happy to answer the question. I provided my solicitor with information and then he drafted a letter which was then sent to me. I provided corrections to that letter and it was then provided to the committee.

Senator JOHNSTON: What do you understand by the term 'waterboarding'?

Mr Nichols : Water-borting?

Senator JOHNSTON: Waterboarding.

Mr Nichols : I believe it to be where a person is restrained, a cloth is placed over their face and mouth, and then water is poured over them.

Senator JOHNSTON: Over their face?

Mr Nichols : That is correct.

Senator JOHNSTON: Have you ever personally witnessed that at any time during your employment with Wilson's?

Mr Nichols : I have already answered that question, previously, to the other senator.

Senator JOHNSTON: For my benefit—because I did receive a phone call at the psychological moment, obviously—could you just repeat your answer.

Mr Nichols : No, I have not personally witnessed the actual event, but I have witnessed what I firmly believe to be the actions after.

Senator JOHNSTON: So you have seen people with water on them come from a building?

Mr Nichols : And water coming out of their mouth—coughing up water.

Senator JOHNSTON: How many times did you observe this?

Mr Nichols : As previously stated, two or three times.

Senator JOHNSTON: During the period September 2013 to 11 June, can you identify when those periods were—approximately?

Mr Nichols : You are asking me to remember something that occurred and wanting specific dates?

Senator JOHNSTON: Yes, please.

Mr Nichols : It would be 2014. The exact dates I could not give you.

Senator JOHNSTON: Why have you used the expression 'throughout the facility'? I am sorry, Mr Nichols; I do not understand why you need to get advice. This is your submission. I do not understand why you need to have someone give you the words to answer my question.

Mr Day : Because I am here to advise him. We are getting the question and now we are getting the answer.

Senator JOHNSTON: We are getting your answer, Mr Day.

Mr Day : No, we are not. We are not getting my answer at all, and I really wish you would stop this.

Senator REYNOLDS: We are asking questions at a hearing.

Mr Nichols : By 'throughout the facility', I am referring to Bravo compound.

Senator JOHNSTON: Bravo compound.

Mr Nichols : That is correct. In that sense, 'throughout the facility' may have been a bad choice of words, but certainly throughout the compound—Bravo compound.

Senator JOHNSTON: So 'throughout the facility' means just Bravo compound?

Mr Nichols : In this sense, yes.

Senator JOHNSTON: And we have a number of other compounds in the facility?

Mr Nichols : That is correct.

Senator JOHNSTON: Could you just tell me what the other compounds are, please?

Mr Nichols : Certainly. There is Alpha compound, Bravo compound, Charlie, Delta—that is at RPC2—and then, down at RPC3, area 1, area 3, area 9 and the SAFs area.

Senator JOHNSTON: So there are about eight or nine other areas in each of the two broader areas of the camp?

Mr Nichols : There are four areas in RPC2; and five or six in RPC3.

Senator JOHNSTON: You wish to withdraw the expression 'throughout the facility', do you?

Mr Nichols : Maybe clarify rather than withdraw.

Senator JOHNSTON: All right. Are there any other areas in your submission that you wish to clarify which clearly are, may I say, quite misleading as to what the actual factual circumstances were at the time. You have said 'Water boarding of asylum seekers throughout the facility'—that is clearly not true, is it?

Mr Nichols : In the sense of every single compound in that facility?

Senator JOHNSTON: That is right.

Mr Nichols : No, it would not be true. It is true that it occurred—

Senator JOHNSTON: What else in your submission is not true then?

Mr Nichols : I am not sure what you are alluding to.

Senator JOHNSTON: For example:

'Zipping' asylum seekers to metal beds—this process occurs by using 'cable ties' to secure an asylum seeker to a metal bed …

You have used plural and singular interchangeably there. How many asylum seekers have you personally seen zip tied to a metal bed?

Mr Nichols : I have previously answered the question.

Senator JOHNSTON: Could you answer it again for me, please?

Mr Day : No—no, that is me talking to him; you just overheard me, Senator

Senator JOHNSTON: So you don't wish to answer that question?

Mr Nichols : I have previously answered the question.

Senator JOHNSTON: Right. You don't wish to repeat the answer?

Mr Nichols : That is correct.

Senator JOHNSTON: May I ask why not?

CHAIR: I am going to intervene at this point. Witnesses are required to answer as truthfully as they can. There are no great findings here. It is quite normal that there will be cross-examination and, if you only ever worked in Bravo compound, you may well have thought it was the facility. If you have got an answer, just answer it truthfully—that is my advice to you.

Senator JOHNSTON: Yes, Mr Nichols?

Mr Nichols : The vast majority of my time on that island was spent working in Bravo compound, so therefore I can only tell you what I have seen and what I have heard. Most of that is in the Bravo compound.

Senator JOHNSTON: So, in the Bravo compound, you saw asylum seekers zipped to metal beds?

Mr Nichols : No, I did not see that.

Senator JOHNSTON: That is what you have got written here—I am just going from what you have told the committee in your submission.

Mr Nichols : I have heard that asylum seekers have been zip tied to metal beds. ERT quite openly bragged about it.

Senator JOHNSTON: Okay, but you personally in two years—or just under two years—have never actually seen that?

Mr Nichols : I would not engage in that activity, Senator.

Senator JOHNSTON: No, no, no: I firmly agree with you and I am not accusing you of engaging in that but I am asking what you saw.

Mr Nichols : As far as people being zip tied to an actual bed—no, I have not seen them zip tied to a fence; I have seen an individual zip tied to a fence.

Senator JOHNSTON: If I might just go back—my last question—

Mr Day : Do you want to explore the zip tying to the fence? That might be something that you want to ask.

CHAIR: Mr Day.

Mr Day : I might be relevant

CHAIR: Mr Day, please confine yourself to advising your client, and we will get along much better and much quicker.

Mr Day : Okay.

Senator JOHNSTON: My last question, Mr Nichols—and I do thank you for your cooperation seriously; it is obviously not easy revisiting these things. What was the building where you saw the person wet and coughing up water?

Mr Nichols : This is a tent in Bravo compound.

Senator JOHNSTON: A tent—

Mr Nichols : Yes.

Senator JOHNSTON: in Bravo compound. Whereabouts in Bravo compound?

Mr Nichols : The actual compound is comprised solely of tents.

Senator JOHNSTON: Does this tent have an identification?

Mr Nichols : It would be tent 11.

Senator JOHNSTON: Tent 11. So you saw someone wet and coughing up water coming out of tent 11?

Mr Nichols : That is correct.

Senator JOHNSTON: I have no further questions. Thank you, Mr Nichols.

Senator REYNOLDS: I will echo the committee's thanks, Mr Nichols, for coming and giving testimony. I read the evidence that you provided about some of your accounts and what it was like when you first went to Nauru on—what was it—19 September? I note that you said you were there for one rotation. Is that two weeks?

Mr Nichols : That is correct.

Senator REYNOLDS: And then you went away on sick leave.

Mr Nichols : That is correct.

Senator REYNOLDS: How long were you away on sick leave for?

Mr Nichols : One month.

Senator REYNOLDS: Okay. So then you came back to RPC2—

Mr Nichols : That is correct.

Senator REYNOLDS: which was the all-male facility.

Mr Nichols : Yes, the SAMs facility.

Senator REYNOLDS: To get a sense of what it was like at the time, RPC2, if I recollect correctly, is where the detainees who had been involved in the riot the month before you got there were. Is that correct?

Mr Nichols : That is correct.

Senator REYNOLDS: Reading your testimony, in the environment you were then in you were subject to death threats from the detainees—there were things about cutting your throat from an Iranian officer and other detainees.

Mr Nichols : That is correct.

Senator REYNOLDS: Is that the sort of environment it was when working there?

Mr Nichols : It was extremely hostile to begin with, yes.

Senator REYNOLDS: For example, a year after that time in RPC2, was it those same detainees that you saw? You have now clarified that it was not across the compound, but it was in tent 11.

Mr Nichols : That is correct.

Senator REYNOLDS: Would it have been the same population of detainees you saw?

Mr Nichols : Yes.

Senator REYNOLDS: Was it two or three people on one occasion, or did you see—

Mr Nichols : Two or three occasions where individuals—

Senator REYNOLDS: Was it all tent 11 on these two or three occasions?

Mr Nichols : Primary, tent 11 is where Palestinians were housed, and I believe that animosity was directed towards them due to the riot.

Senator REYNOLDS: Within that population, as you said, there were many detainees from many different origins in the Middle East—

Mr Nichols : Yes.

Senator REYNOLDS: and it was obviously a pressure cooker and they were very violent and violent to you, because you said you had physical attacks against you, as well.

Mr Nichols : Not all of them were violent, no.

Senator REYNOLDS: But as you have described it, it was not a good environment and it was an environment where you fell sick, obviously, when you got there and then afterwards. Would that be a correct characteristic of your environment?

Mr Nichols : Yes. That would be fair, yes.

Senator REYNOLDS: We have heard at least three serious allegations from you of things that initially we had understood from your testimony that you witnessed—waterboarding and zipping. I now understand that you did not witness them, but that you saw what you thought was that, or you had heard second- or third-hand reports about from others. You said that you did not have access to the whistleblowers hotline because you were not aware of it. Given your allegations go back so far, what other steps did you take to report first of all these physical acts?

Mr Nichols : I had reported these things to my direct supervisor on the ground there.

Senator REYNOLDS: I know that there are many other oversight agencies that have been there throughout your time there—there has been the Commonwealth Ombudsman, you would have been aware that the Moss review team was there, and there has been a whole range of others. Did you at any time seek to go outside and report these things that you said you found horrific?

Mr Nichols : No, I had not. No.

Senator REYNOLDS: So you had all of these things at that time that you had heard about but you did not report or take any further. But then you have got the allegations where you were in the control room, I understand, and you were given incident reports and you were told to shred them.

Mr Nichols : Yes.

Senator REYNOLDS: How often did that occur?

Mr Nichols : As I previously said, it could be once or twice a shift; it could be once or twice a week.

Senator REYNOLDS: And what was the period? I would imagine—given that you said you did not want to do it—if it was that traumatic, then you would have some recollection of when it started and when it finished.

Mr Nichols : It was the whole period that I worked in that control room.

Senator REYNOLDS: From the first day you were there till the day you left—how long were you in the control room for?

Mr Nichols : Approximately six months.

Senator REYNOLDS: So for six months, day after day, you say that you were asked to do something that you knew was wrong. I am trying to understand why you did not seek to report it to anybody else.

Mr Nichols : It was done at the direction of the Command 3 who, effectively, is your supervisor.

Senator REYNOLDS: I am wondering how you managed to keep doing that. I know, being an Army reservist myself, if you are given an unlawful command the first thing you are taught is you do not abide by it and you report it. Given your service in the Army Reserves, why did you stay there and why did you keep doing it, if it occurred?

Mr Nichols : As I said, I did at the direction of my supervisor. Whether it was right or wrong, I was following what he said. I take on board what you said about an unlawful command, but this is a totally different situation. This is not the military. I did as instructed to fulfil the requirements of my employment—I followed my employer's direction.

Senator REYNOLDS: You are saying it was not a military environment, so you were not forced to stay there. If this occurred as you said, I wonder why you voluntarily stayed there for so long and kept doing it without elevating it to a higher level of supervision or any of the other multitude of independent supervisors who were there.

Mr Nichols : Basically for my employment. I did it because it put bread and butter on my table at home—it paid the bills. For the money.

Senator REYNOLDS: Are you saying you were not aware that the Moss review was on the island and conducting inquiries?

Mr Nichols : It is possible they were on the island when I was off.

Senator REYNOLDS: So you never—

Mr Nichols : I certainly had no interaction with them, no.

Senator REYNOLDS: And you never made any attempt to do so?

Mr Nichols : No.

Senator REYNOLDS: You mentioned some footage and a Mr?

Mr Nichols : Louie Davies.

Senator REYNOLDS: He was a member of the ERT, you say, and he showed you some footage off his iPhone that he was issued—

Mr Nichols : Not an issued iPhone—a personal iPhone.

Senator REYNOLDS: It was a personal iPhone—so it was not an issued GoPro, it was not a Wilsons phone, it was his own personal phone?

Mr Nichols : That is correct.

Senator REYNOLDS: And you are saying you had no evidence that what he did was not at the direction of Wilsons; it could well have been off his own bat?

Mr Nichols : I cannot speak for his reasons for doing it.

Senator REYNOLDS: So what you can testify to is that you believe you saw someone who had evidence, or had a picture, of Senator Hanson-Young but there was no indication whatsoever that it was done at the direction of his employer?

Mr Nichols : Only what he said verbally, and that was that Ranger 1 had told them to film the senator.

Senator REYNOLDS: So you have no direct evidence that that was the case?

Mr Nichols : Only what he has relayed to me. I suggest you ask him.

Senator LUDLAM: You indicated to us before that there were a couple of other individuals who came to mind who could corroborate the evidence you have given us today. Can you let us know who they are?

Mr Nichols : Yes, certainly.

CHAIR: We always try to give people the right of reply if they are going to be named. If you could write their names on a piece of paper, then you will not be naming them openly in the hearing. We can then give them the right of reply, so to speak, and you can proceed with your evidence.

Senator LUDLAM: We can take that information after the hearing, if you like. How many individuals are we talking about?

Mr Day : Seven.

Senator LUDLAM: What did you call them before? Bricks?

Mr Nichols : An ERT brick..

Senator LUDLAM: Is that like a little platoon?

Mr Nichols : Yes, for the lack of a better term.

Senator LUDLAM: Were these seven or eight individuals all from the same one, or were they distributed around the ERT?

Mr Nichols : Some of them are members of the ERT; some of them are other CSOs.

Senator LUDLAM: I understand you were not on the ERT—this is what is getting last around in a camp after the event, effectively. You mentioned some kind of call sign before—I do not recall what it was—in response to Senator Reynolds. What was that? Somebody told you; you referred to them by some kind of code or call sign.

Mr Nichols : Ranger 1.

Senator LUDLAM: Is that somebody who has who has been named already in evidence? Is that Mr Kahika or somebody else?

Mr Nichols : That would be him.

Senator LUDLAM: So we have got those seven or eight individuals. Do you get any sense as to where that order came from? What I am trying to understand is how Wilsons can tell us it was a low-order supervisor who instructed two other blokes to go out and watch a car. Your evidence and the evidence of other whistleblowers is that it was much more extensive than that.

Mr Nichols : I can only, as I said previously, tell you what I heard, and that was that ranger 1 had instructed them to film the senator.

Senator LUDLAM: I will wrap up now, because we have covered this reasonably comprehensively. To your knowledge, apart from observing a car in a car park overnight, what other forms of surveillance do you believe occurred while Senator Hanson-Young was on the island?

Mr Nichols : That I do not know; I could not answer that, sorry.

Senator LUDLAM: It was for the entire time that she was there, that is your understanding, but you are not sure of the specific techniques?

Mr Nichols : My understanding was that the instruction was to film the senator while she was there. I took that to mean for the duration of her visit.

Senator LUDLAM: Understood. If you do not know, then you do not know.

Senator REYNOLDS: That is an assumption.

Mr Nichols : Correct, Senator; that is my assumption, yes.

Senator REYNOLDS: I have a couple of very quick clarification questions. You said that all of those alleged waterboarding incidents happened in tent 11 in Bravo compound. But where tent 11 is in the compound, it would be near a recreation facility—is that correct? There is a recreation area next to it?

Mr Nichols : There is a recreation tent at the entrance, tent 10, tent 11, tent 12.

Senator REYNOLDS: I am just wondering how that sort of—

Mr Nichols : I could draw you a picture if you like, Senator.

Senator REYNOLDS: No, I have seen the layout. But how could that occur when there are a lot of people there? How could that occur right next to the recreation area with nobody hearing or seeing anything? I am just wondering: did you hear anything, or did you just see people with water coming out of their mouths coming out of a tent? It was all quiet?

Mr Nichols : I saw members of the ERT come back through our area at the Bravo compound, Bravo 1.

Senator REYNOLDS: But did you hear—

Mr Nichols : No, I did not specifically hear anybody being—

Senator REYNOLDS: And nobody else has ever reported this, so clearly it must have been done so quietly that nobody else heard it either.

Mr Nichols : I cannot speak for other people.

Senator REYNOLDS: Thank you for that clarification. I also want to clarify some evidence you have just given. I believe you said, in response to Senator Johnston's question, that you had only worked at RPC2 and Bravo compound, but in answer to my question you said that you had actually worked in the family compound as well. Can you just clarify that?

Mr Nichols : I did one rotation in the family compound and then went to RPC2.

Senator REYNOLDS: I just wanted to clarify what you said, because it was contradictory earlier on.

Mr Nichols : No worries.

CHAIR: Thank you very much, Mr Nichols and Mr Day, for your evidence here today. Thank you very much for appearing.