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Foreign Affairs, Defence and Trade References Committee-Senate Standing Breaches of Indonesian territorial waters Report, dated March 2014


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The Senate

Foreign Affairs, Defence and Trade

References Committee

Breaches of Indonesian territorial waters

March 2014

 Commonwealth of Australia 2014

ISBN 978-1-74229-981-5

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

Printed by the Senate Printing Unit, Parliament House, Canberra

Members of the committee

Core members Senator the Hon Ursula Stephens, ALP, NSW (Chair) Senator Alan Eggleston, LP, WA (Deputy Chair) Senator Sam Dastyari, ALP, NSW (Chair from 17 to 21 March 2014) Senator David Fawcett, LP, SA (Deputy Chair on 21 March 2014) Senator Anne McEwen, ALP, SA Senator Peter Whish-Wilson, AG, TAS

Substitute members Senator the Hon Stephen Conroy, ALP, VIC (replaced Senator Stephens from 17 to 21 March 2014) Senator Sarah Hanson-Young, AG, SA (replaced Senator Whish-Wilson for the inquiry)

Secretariat Mr David Sullivan, Committee Secretary Mr Owen Griffiths, Principal Research Officer Miss Jedidiah Reardon, Senior Research Officer Ms Penny Bear, Research Officer Ms Ophelia Tynan, Administrative Officer

Senate Foreign Affairs, Defence and Trade Committee Department of the Senate PO Box 6100 Parliament House Canberra ACT 2600 Australia

Phone: + 61 2 6277 3535 Fax: + 61 2 6277 5818 Email: fadt.sen@aph.gov.au Internet: www.aph.gov.au/senate_fadt

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Table of Contents

Members of the committee ............................................................................... iii

Chapter 1.............................................................................................................. 1

Introduction .............................................................................................................. 1

Background ............................................................................................................. 1

Conduct of the inquiry ............................................................................................ 2

Structure of the report ............................................................................................. 2

Chapter 2.............................................................................................................. 3

Breaches of Indonesian territorial waters .............................................................. 3

Operation Sovereign Borders ................................................................................. 3

Joint review into breaches of Indonesian territorial waters .................................... 3

Reactions to the joint review findings .................................................................... 8

Evidence in relation to the maritime breaches ..................................................... 10

Extent to which the maritime incidents complied with international law ............ 18

Public Interest Immunity ...................................................................................... 19

Other matters ........................................................................................................ 21

Chapter 3............................................................................................................ 23

Conclusion and recommendations ........................................................................ 23

Committee view .................................................................................................... 23

Dissenting Report .............................................................................................. 27

Coalition Senators .................................................................................................. 27

Additional Comments ....................................................................................... 29

Australian Greens Senators ................................................................................... 29

Appendix 1 ......................................................................................................... 31

Public submissions ............................................................................................... 31

Appendix 2 ......................................................................................................... 33

Tabled documents, additional information and correspondence ...................... 33

Additional information and tabled documents ..................................................... 33

Correspondence .................................................................................................... 33

Answers to questions on notice ............................................................................ 33

Appendix 3 ......................................................................................................... 35

Public hearings and witnesses ............................................................................... 35

Appendix 4 ......................................................................................................... 37

Joint Review - Terms of Reference ...................................................................... 37

Appendix 5 ......................................................................................................... 41

Joint Review - Executive Summary ..................................................................... 41

Appendix 6 ......................................................................................................... 47

Letter from Minister for Immigration and Border Protection to Chair of the Senate Foreign Affairs, Defence and Trade References Committee, 20 March 2014 .......................................................................................................................... 47

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Chapter 1 Introduction

Background 1.1 On 17 January 2014, the Minister for Immigration and Border Protection, the Hon Scott Morrison MP, announced that 'Border Protection Command assets had, in the conduct of maritime operations associated with [OSB], inadvertently entered Indonesian territorial waters on several occasions, in breach of Australian Government policy'.1 Minister Morrison stressed that it was the 'firm policy and commitment' of the Government 'not to violate the territorial sovereignty of Indonesia in relation to any operations conducted under [OSB]'.2 He noted that formal apologies on behalf of the Australian Government would be made to the Indonesian government.3

1.2 At the same press conference, Lieutenant General Angus Campbell emphasised that at no time were Australian vessels authorised to enter Indonesian waters and that the personnel on the vessels believed they were at all times operating outside of Indonesian waters.4

1.3 On 21 January 2014, Customs and Defence announced that a joint review would be conducted to investigate the circumstances under which Australian naval vessels entered Indonesian territorial waters. The inquiry would cover the period between 1 December 2013 and 20 January 2014.5

1.4 The joint review concluded on 10 February 2014 and a public version released on 19 February.6 The summary of the review's findings and recommendations

1 Transcript of press conference, 'Operation Sovereign Borders Update', Minister for Immigration and Border Protection the Hon Scott Morrison MP and Lieutenant General Angus Campbell DSC AM, 17 January 2014, p. 1.

2 Transcript of press conference, 'Operation Sovereign Borders Update', Minister for Immigration and Border Protection the Hon Scott Morrison MP and Lieutenant General Angus Campbell DSC AM, 17 January 2014, p. 1.

3 Transcript of press conference, 'Operation Sovereign Borders Update', Minister for Immigration and Border Protection the Hon Scott Morrison MP and Lieutenant General Angus Campbell DSC AM, 17 January 2014, p. 2.

4 Transcript of press conference, 'Operation Sovereign Borders Update', Minister for Immigration and Border Protection the Hon Scott Morrison MP and Lieutenant General Angus Campbell DSC AM, 17 January 2014, p. 4.

5 Media release, 'Joint Customs-Defence Media Release - Review of positioning of vessels engaged in Operation Sovereign Borders', 21 January 2014, http://news.defence.gov.au/2014/01/21/joint-customs-defence-media-release-review-of-positioning-of-vessels-engaged-in-operation-sovereign-borders/ (accessed 24 March 2014).

6 Media release, 'Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders is completed', Australian Customs and Border Protection Service, 19 February 2014, http://newsroom.customs.gov.au/releases/joint-review-of-positioning-of-vessels-engaged-in-operation-sovereign-borders-is-completed (accessed 24 March 2014).

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indicated that two Royal Australian Navy (RAN) frigates had crossed into Indonesian territory four times during the period, while Customs vessels did so on another two occasions. The report confirmed that '[o]n each occasion the incursion was inadvertent, in that each arose from incorrect calculation of the boundaries of Indonesian waters rather than as a deliberate action or navigational error'.7

Conduct of the inquiry 1.5 On 5 March 2014, the Senate referred matters relating to breaches of Indonesian territorial waters to the Foreign Affairs, Defence and Trade References Committee 'with effect from 20 March 2014 for inquiry and report by midday 27 March 2014'.8 The committee advertised the inquiry on its website and through social media and called for submissions. The committee received three public submissions. These are published on the committee's website and listed at Appendix 1.

1.6 The committee held a public hearing on 21 March 2014 and invited witnesses from the relevant departments and agencies as well as academics. Witnesses who appeared at the hearing are listed at Appendix 2.

Structure of the report 1.7 The report consists of three chapters. Following this introduction, Chapter two examines evidence provided to the committee at a public hearing on 21 March in relation to the maritime incursions. Chapter three provides the committee's conclusions and recommendations.

7 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 10.

8 Journals of the Senate, 5 March 2014, p. 564.

Chapter 2

Breaches of Indonesian territorial waters Operation Sovereign Borders 2.1 Operation Sovereign Borders (OSB) is a civilian law enforcement operation run as a joint agency taskforce headed by Lieutenant General Angus Campbell, aimed at preventing the maritime arrival of asylum seekers to Australia. OSB commenced on 18 September 2013. The operation was an election commitment of the Coalition, described in two policy documents: the Coalition's Policy on Regional Deterrence Framework to Combat People Smuggling (August 2013) and the Coalition's Operation Sovereign Borders Policy (July 2013). The Coalition's Operation Sovereign Borders Policy included 'instructing the Australian Defence Force to turn back boats where it is safe to do so' as part of a policy intended to deter people smuggling operations to Australia.

2.2 Described as 'military led' the OSB taskforce operates with the support of a range of government agencies, organised into three task groups:

• Detection, Interception and Transfer Task Group—led by the Australian

Customs and Border Protection Service (incorporating Border Protection Command);

• Disruption and Deterrence Task Group—led by the Australian Federal Police (AFP); and

• Offshore Detention and Returns Task Group—led by the Department of

Immigration and Border Protection (DIBP).1

2.3 The commander of OSB, Lieutenant General Campbell, reports to the Minister for Immigration and Border Protection, the Hon Scott Morrison MP, who has portfolio responsibility for OSB.

2.4 Australian vessels supporting OSB activities are monitored from two command centres—the Australian Maritime Security Operations Centre in Canberra, and the military component, Joint Task Force 639, in NORCOM in Darwin.

Joint review into breaches of Indonesian territorial waters 2.5 As noted Chapter 1, following the identification of a Royal Australian Navy vessel having breached Indonesian territorial waters in the course of its participation in OSB, Lieutenant General Campbell asked the Chief of the Defence Force and the CEO of Australian Customs and Border Protection Service to conduct a joint review to identify other possible breaches.

1 Coalition's Operation Sovereign Borders Policy, July 2013, p. 12.

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Joint review terms of reference

2.6 The joint review focused on the facts and circumstances surrounding the entry of Australian vessels into Indonesian waters in connection with OSB during the period 1 December 2013 to 20 January 2014. The terms of reference for the joint review provided that it would:

• Identify instances of entry of Australian vessels into Indonesian waters and

determine which could be considered in breach of Australian Government policy.

• Collect evidence on the sequence of events relating to instances of entry into

Indonesian waters, including:

• The planning prior to each activity, including planning by units and

by higher headquarters;

• The tasking of units and vessels and the processes for approving

missions and activities;

• The execution of activities, including time, date and location and

whether the activities were executed in Indonesian waters;

• Applicable plans, orders, instructions, charts, operating procedures, operating policies, briefings and practices relevant to the activities; and

• Assessment of whether the planning and execution of the activities

being considered conformed with the requirements of the applicable documents, and assess the extent to which any failures to conform with requirements may have contributed to the breaches. 2

• Collect evidence on how instances of entry to Indonesian waters were identified and reported and the adequacy of these actions.

• Determine whether any weaknesses or deficiencies exist in:

• Preparation and training of personnel involved in planning and

executing activities;

• Planning of activities, including physical and electronic charts and

databases;

• Any applicable orders, instructions, operating procedures, operating policies, briefings and practices; and

• The post-incident response to the activities.

2.7 The terms of reference also identified the key stakeholders for the review: Department of Defence, Australian Defence Force (ADF), Australian Customs and Border Protection Service (Customs), OSB, Joint Agency Task Force (JATF), Department of Foreign Affairs and Trade, Attorney-General's Department, and the

2 At Appendix 4 of this report.

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Department of Prime Minister and Cabinet. The joint review was also authorised under its terms of reference to seek information from and consult with key stakeholders and other agencies as required.

2.8 Finally, the terms of reference noted that the joint review is to exclude matters relating to professional conduct as these will be dealt with by Customs and the ADF respectively, although the review may make any appropriate recommendations as to inquiries into professional conduct matters.

Joint review findings

2.9 A public version of the review was released on 19 February 2014, entitled Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders. On 24 February, at an additional estimates hearing, Mr Pezzullo, CEO of the Australian Customs and Border Protection Service, stated:

[T]he CDF and I released a public version, essentially a summary of the narrative of events, the findings and the recommendations of the review team. The CDF and I would not be proposing to release anything more publicly. The content in some regards at least is covered by the public interest immunity claim that Minister Morrison and Minister Cash have made, and tabling the report to this committee would in effect make it public and therefore would be in breach of that claim.3

2.10 The executive summary of the joint review stated that 'Australian vessels inadvertently entered Indonesian waters on six occasions between December 2013 and January 2014 contrary to Australian Government policy and operational instructions in relation to Operation Sovereign Borders [OSB]'.4 In terms of responsibility for the breaches, the report stated:

The headquarters identified the requirement to obtain authoritative information on Indonesian maritime boundaries to inform the safe and proper conduct of the patrols. Despite recognising the importance of this information, headquarters staff supervising OSB tactical missions, effectively devolved the obligation to remain outside Indonesian waters to vessel Commanders. Headquarters staff accepted, without proper review, that the proposed patrol plans would result in vessels remaining outside Indonesian waters. The implementation of appropriate control measures would have reduced the risk of the inadvertent entry of vessels into Indonesian waters.

Had headquarters staff implemented appropriate control measures, informed by authoritative information on Indonesian maritime boundaries, the normal post activity reporting and checks would have detected the

3 Senate Legal and Constitutional Affairs Legislation Committee, Additional Estimates, Committee Hansard, 25 February 2014, p. 73.

4 Media release, 'Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders is completed', Australian Customs and Border Protection Service, 19 February 2014, http://newsroom.customs.gov.au/releases/joint-review-of-positioning-of-vessels-engaged-in-operation-sovereign-borders-is-completed (accessed 24 March 2014).

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incursions as they occurred. This did not occur. The appropriate controls were not put in place by the relevant headquarters.5

2.11 The committee heard evidence that officers such as Mr Pezzullo and General Hurley expected that the actions of those in charge of Customs vessels—either Navy commanders or civilian masters—would always accord with the strategic directions given to commanders of vessels conducting missions under Operation Sovereign Borders.6

2.12 The joint review found that a lack of training may have contributed to the breaches. It noted that while 'RAN Commanding Officers had received professional training to understand the provisions of United Nations Convention on the Law of the Sea (UNCLOS)', the Australian Customs and Border Protection Service 'who are trained for operations inside the Australian Exclusive Economic Zone (EEZ), had not received this training as it applied to the Indonesian archipelago'.7 Likewise, the appropriate control measures to review the actions of vessel commanders in carrying out the two key policy directions in their day to day missions under Operation Sovereign Borders were also lacking.8

2.13 The report included a summary of recommendations including:

Recommendation 1

It is recommended that the Chief of Joint Operations and the Deputy Chief Executive Officer (Border Enforcement) [Australian Customs and Border Protection Service] consider the review and monitoring processes undertaken by Headquarters Joint Task Force 639 and the Australian Maritime Security Operations Centre for any individual lapses in professional conduct that contributed to incursions by Australian vessels into Indonesian waters.

Recommendation 2

It is recommended that the Chief of Navy consider each incursion by RAN vessels into Indonesian waters during Operation Sovereign Borders, with regard to any individual lapses in professional conduct.

Recommendation 3

It is recommended that Force Preparation training for Australian vessels designated to be assigned to Operation Sovereign Borders should be amended to ensure crews are prepared to conduct operations while remaining outside Indonesian waters.

Recommendation 4

5 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraphs 13-14.

6 Committee Hansard, 21 March 2014, pp. 33-34.

7 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 15.

8 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 14.

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It is recommended that a range of policies procedures and operational documents be reviewed as a result of the incursions by Australian vessels into Indonesian waters.

Recommendation 5

It is recommended that Border Force Capability Division review operational training provided to [Australian Customs and Border Protection Service] Commanding Officers and Enforcement Commanders to ensure a tactical appreciation of UNCLOS.

2.14 Mr Pezzullo explained in his opening statement to the committee at its hearing on 21 March that control measures to prevent further breaches were implemented immediately.9 Further, Mr Pezzullo advised that work to review and update all relevant operational documents (recommendation 4 of the joint review) 'began as soon as the incursions were discovered, not as a consequence of the Review process'.10

Implementation of the joint review recommendations

2.15 Following the release of the report, Customs and Defence indicated that they accepted the joint review's findings and recommendations, and directed the implementation of the recommendations.

2.16 At the committee's public hearing on 21 March, Mr Pezzullo provided an update on the progress of implementation of the review's recommendations. In summary:

• Recommendations 1 and 2: inquiries are underway relating to the professional

conduct of relevant personnel, but there would be no comment about the actions of individual officers at this stage.11

• Recommendation 3: Defence's and Customs' force preparation training regimes are under review and interim measures have been implemented to address any gaps while the review is completed. Revised force preparation training for crew and vessels under BPC would be implemented by early May 2014.12

• Recommendation 4: Mr Pezzullo advised that 'All relevant operational documents have been reviewed by BPC and are being amended to include additional advice regarding the conduct of operations and to include internal control measures'.13 Relevant operational documents include charts and systems, and policy and planning documents; these have been updated to include operational information and to be explicit in their guidance on Indonesian maritime boundaries. Mr Pezzullo advised that 'A new procedure

9 Committee Hansard, 21 March 2014, p. 2.

10 Committee Hansard, 21 March 2014, p. 3.

11 Committee Hansard, 21 March 2014, p. 3.

12 Committee Hansard, 21 March 2014, p. 3.

13 Committee Hansard, 21 March 2014, p. 3.

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has been developed and implemented for approval and oversight of certain operational activity'.14 Work in relation to implementing recommendation 4 would be complete by mid April 2014.15

• Recommendation 5: Mr Pezzullo advised that a comprehensive review of

operational training had been initiated to implement the review recommendation that training to CBPS commanding officers and enforcement officers 'ensure a tactical appreciation of the UNCLOS'.16 Remedial training for commanding officers and enforcement commanders had been implemented as an interim measure but permanent measures would be in place by the end of June 2014.17

2.17 Mr Pezzullo also stated that:

Both my service and Defence acknowledged at the time and continue to recognise the seriousness of these incursions into Indonesian waters. That is why we sought to review the matter as a matter of urgency and put immediate measures in place to prevent a recurrence.18

Reactions to the joint review findings 2.18 The Indonesian government reacted negatively to the announcements regarding the breach of Indonesia's territorial waters. The incidents were perceived as contributing to a deterioration of the relationship between Australia and Indonesia. A spokesman for the Office of Indonesia's Co-ordinating Minister for Politics, Security and Law stated:

The government of Indonesia has the right to protect its sovereignty and territorial integrity in accordance with international laws and the charter of the United Nations. Indonesia demands that such operations conducted by the Australian government that led to these incidents be suspended until formal clarification is received and assurances of no recurrence of such incidents has been provided….Indonesia for its part will intensify its maritime patrols in areas where violation of its sovereignty and territorial integrity are at risk.19

2.19 Professor Donald Rothwell, in evidence to the committee on 21 March, noted that while Indonesia has some mechanisms available to it under the Law of the Sea

14 Committee Hansard, 21 March 2014, p. 3.

15 Committee Hansard, 21 March 2014, p. 3.

16 Committee Hansard, 21 March 2014, p. 3.

17 Committee Hansard, 21 March 2014, p. 3.

18 Committee Hansard, 21 March 2014, p. 3.

19 Lenore Taylor, 'Indonesia demands suspension of Australia's asylum operations', The Guardian, 17 January 2014, available at: http://www.theguardian.com/world/2014/jan/17/australia-apologises-patrol-boats-indonesian-waters (accessed 19 March 2014).

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convention through which it could respond to the breaches by Australia, so far it has chosen only diplomatic action:

…I would note that there is nothing on the public record to suggest that Indonesia has sought to respond to incursions into its territorial sea by Australian warships and government ships via the mechanisms that it has available under the Law of the Sea convention, other than by way of diplomatic means whereby it has expressed its displeasure at Australia's conduct.20

2.20 A number of former naval commanders have publicly commented on the breaches of Indonesian territorial waters. Retired two-star Rear Admiral Goldrick, outlined that '[u]nder international law, the territorial sea of a state is generally considered to extend 12 nautical miles (just over 22 kilometres) from land'. However, he noted that Indonesia is an archipelago as defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). He suggested that 'the ships seem at all

times to have been well aware of their location…but did not include the critical legal element of the baselines in their calculations'.21

2.21 Another former RAN senior officer, Dr Sam Bateman commented:

While the territorial sea normally extends 12 [nautical miles] from land, if straight baselines are used, it can extend much further — a ship can be well beyond 12 [nautical miles] from land and still be within the territorial sea of Indonesia. Such straight baselines exist in two likely areas where Australian vessels may head when towing back asylum-seeker boats: to the south-west of Rote Island and off south-west Java adjacent to Christmas Island. 22

2.22 Dr Bateman was critical of an apparent lack of maritime awareness by policy makers:

For a maritime country with a huge area of maritime jurisdiction, there should be a higher level of maritime awareness in government agencies, especially regarding fundamental issues of maritime jurisdiction. Commanding officers of all our maritime enforcement vessels should have a clear understanding of the law of the sea, including how it relates to our close neighbours, most of which are archipelagic states. Responsible authorities ashore should ensure this is the case. All departments and agencies in Canberra concerned with managing the maritime domain,

20 Committee Hansard, 21 March 2014, p. 72.

21 James Goldrick, 'Understanding the maritime boundary problem', ABC News, 24 February 2014, available at: http://www.abc.net.au/news/2014-02-24/james-goldrick3a-understanding-the-maritime-boundary-problem/5278374 (accessed 19 March 2014).

22 Sam Bateman, 'Incompetence: Australia's incursions in Indonesian waters', Lowy Interpreter, 28 February 2014, available at http://www.lowyinterpreter.org/post/2014/02/28/Incompetence-Australias-incursions-into-Indonesian-waters.aspx, (accessed 19 March 2014).

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particularly law enforcement aspects, should have the requisite maritime knowledge and awareness.23

2.23 Retired Lieutenant-Commander Barry Learoyd also noted that '[t]he Indonesian archipelago and the archipelagic baseline [the formal name for Indonesia's maritime boundary] is well known to the Australian navy and well known to commanders and senior officers'. He considered that 'Indonesian maritime boundaries constituted important operational information that should have been provided by the headquarters to the commanders of vessels assigned to Operation Sovereign Borders'.24

Evidence in relation to the maritime breaches 2.24 The committee's inquiry into the six breaches of Indonesian territorial waters focused on:

• the sequence of events that led to the incidents, including detailed accounts of each incident;

• the operational protocols and procedures observed by the Royal Australian Navy, Customs and Border Protection and by other relevant Commonwealth agencies during the incidents;

• the extent to which the incidents complied with international law;

• the steps being taken to prevent similar incidents from taking place in the

future;

• the communications between Operation Sovereign Borders agencies,

including the Department of Immigration and Border Protection, the Joint Agency Taskforce, the Department of Defence and Customs and Border Protection, regarding the incidents;

• the communications between the Minister for Immigration and Border Protection, the Minister for Defence, the Senior Command of the Australian Defence Force, the Department of Immigration and Border Protection, the Department of Defence, Customs and Border Protection and Operation Sovereign Borders agencies, including the Joint Agency Taskforce, regarding the incidents;

• the operational procedures observed by the Royal Australian Navy and other

Commonwealth agencies involved in Operation Sovereign Borders to ensure the safety of its personnel and asylum seekers during the incidents;

23 Sam Bateman, 'Incompetence: Australia's incursions in Indonesian waters', Lowy Interpreter, 28 February 2014, available at http://www.lowyinterpreter.org/post/2014/02/28/Incompetence-Australias-incursions-into-Indonesian-waters.aspx, (accessed 19 March 2014).

24 Tom Allard, 'Ex-navy officer stunned ships strayed into Indonesian waters', Sydney Morning Herald, 3 March 2014, available at: http://www.smh.com.au/federal-politics/political-news/exnavy-officer-stunned-ships-strayed-into-indonesian-waters-20140302-33tzh.html, (accessed 19 March 2014).

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• the briefings given to Australian Navy and Customs and Border Protection

personnel (both on-water and off-water) about maritime borders and laws of the sea during on-water operations; and

• any other matters relating to Operation Sovereign Borders.

2.25 In conducting its inquiry the committee was restricted by a lack of publicly available information relating to the maritime incursions. This situation was made worse at the public hearing on 21 March where the committee was frustrated by persistent claims that questions about OSB in general and the maritime incursions in particular were subject to the blanket public interest immunity claim which Minister Morrison had previously made.25 The committee was unable to obtain even basic information about the GPS information which may have been made available to headquarters from the vessels involved in OSB.26

2.26 The following sections examine the evidence before the committee in relation to the sequence of events and lines of communication between OSB agencies, and the operational protocols and procedures followed by OSB vessels. The chapter concludes with sections on the extent to which the maritime incidents complied with international law, the public interest immunity issue raised by officials at the committee's hearing, and other issues raised in evidence.

Sequence of events and communications between OSB agencies

2.27 At the public hearing, Mr Pezzullo advised the committee that he would 'prefer that we avoid specific discussion of OSB missions. We are happy to talk about generic BPC missions, which may or may not be OSB'.27

2.28 While the committee was not able to establish the sequence of events that led to the incursions identified in the joint review, it did manage to establish the general process which would be followed in the event of a BPC vessel encountering an OSB related issue or incident, and the lines of responsibility between OSB and BPC agencies.

2.29 Responsibility for Australia's national maritime security rests with the CEO of Australian Customs and Border Protection, Mr Pezzullo.28 Customs has at its disposal a number of naval assets, as well as aviation and maritime assets of its own. Rear Admiral Noonan oversees deployment of Customs assets on national maritime security operations. The Rear Admiral reports on day-to-day operational matters to the Deputy CEO of Customs, Mr Roman Quaedvlieg (who reports to Mr Pezzullo) and for Defence assets to Chief of Joint Operations, Lieutenant General Ash Power.29

25 See for example Committee Hansard, 21 March 2014, p. 42.

26 Committee Hansard, 21 March 2014, p. 28.

27 Committee Hansard, 21 March 2014, p. 5.

28 Committee Hansard, 21 March 2014, p. 8.

29 Committee Hansard, 21 March 2014, p. 15.

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2.30 Mr Pezzullo explained that 'matters pertaining to the management of illegal maritime arrivals is executed under civil legislation—the Customs Act and the Migration Act'.30 In the enforcement of these two pieces of legislation, Mr Pezzullo explained that:

ADF personnel who are detaining people, checking their property and doing the things that you have just described do so effectively as civilian law enforcement officers, pursuant to delegation from me.31

2.31 Rear Admiral Michael Noonan explained that the employment of a BPC vessel was something determined as part of the scheduling programs set in advance by 'higher headquarters'.32 Strategic direction for OSB is set by Lieutenant General Campbell:

I will set the strategic direction with regard to issues relating to Operation Sovereign Borders within the wider roles and tasks of Border Protection Command. Admiral Noonan on behalf of the CEO and the CDF on a daily basis monitored by the DCEO and the Chief of Joint Operations will conduct those activities that are on water, while I am looking at the directional alignment across the on-water issues, the upstream issues, the OPC issues and the next month, next six months, next year resourcing capacity and planning.33

2.32 Lieutenant General Campbell and OSB are supported by Mr Pezzullo and the CDF. Mr Pezzullo told the committee that Lieutenant General Campbell is directly accountable to the Minister for Immigration. In describing the lines of communication between himself and the CDF on maritime operations, Mr Pezzullo noted that:

On other occasions, and this goes to Admiral Noonan's reference to the other maritime risks, General Hurley and I may need to have a discussion about things—we are obviously placing emphasis on OSB, and the government has made it clear that it is the priority effort…34

2.33 After the wider direction has been set for maritime security operations under the auspices of Customs, the specific detail is then delegated, as Rear Admiral Noonan explained:

The detail around the actual planning and execution of a passage for a ship to get to a particular point would then typically be delegated down various levels of command strata until we actually get to the ship which is responsible. The ship remains responsible for the planning and safe execution of the navigational practice.35

30 Committee Hansard, 21 March 2014, p. 10.

31 Committee Hansard, 21 March 2014, p. 10.

32 Committee Hansard, 21 March 2014, p. 6.

33 Committee Hansard, 21 March 2014, p. 16.

34 Committee Hansard, 21 March 2014, p. 15.

35 Committee Hansard, 21 March 2014, p. 6.

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2.34 Rear Admiral Noonan described the lines of reporting once a BPC vessel encounters an asylum seeker vessel in its area of patrol:

Typically, we would be operating in that mode. I would get advice. We might have a P3 out there that may gain visual detection of a vessel—an illegal entry vessel or a fishing vessel. That information would then be transmitted back to the headquarters in Darwin. The headquarters in Darwin would then look at the other response assets that it has available to it in terms of patrol boats or frigates, the state of their fuel stocks and their availability. That headquarters would potentially task suitable assets to respond. They would go out and conduct the interception of a vessel. During that period there is regular contact between the tactical unit—the ship or the aircraft—and the headquarters in Darwin. As the situation unfolds—as the vessel starts to sink—the nature of the reporting gets higher. If, in fact, it is just a routine interception the level of tactical reporting might be quite low.

I do not get visibility of this routine information until we get into a crisis situation.36

2.35 Vessels engaged in Customs operations, including OSB operations, have a number of headquarter locations exercising control over them: Headquarters Joint Operations Command (which controls ADF operations nationally, regionally and globally); AMSOC, the Australian Maritime Security Operations Centre (responsible for oversight of Customs assets under Rear Admiral Noonan); and headquarters in Darwin (which coordinates Defence assets).37 Rear Admiral Noonan advised that:

There is information sharing that goes on between all these three headquarters. In terms of having a view, an understanding of what is going on in the operational area, be it specifically in people smuggling or illegal entry or any of the eight maritime threats, information is being shared through these two places. Similarly, we are currently sharing a lot of information with the rescue coordination centre of AMSA, which is a different operation centre again.38

2.36 Rear Admiral Noonan advised that the headquarters in Darwin 'have the picture of what is going on in that domain'.39 Mr Pezzullo described too the displays of information which AMSOC could provide him as CEO of Customs, in an emergency or crisis situation.40

2.37 In terms of monitoring on a daily basis, Rear Admiral Noonan advised that a 24/7 watch staff in AMSOC keep track of vessels on operations, with regular reports

36 Committee Hansard, 21 March 2014, p. 16.

37 Committee Hansard, 21 March 2014, pp. 17-18.

38 Committee Hansard, 21 March 2014, p. 18.

39 Committee Hansard, 21 March 2014, p. 18.

40 Committee Hansard, 21 March 2014, p. 18.

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going to Rear Admiral Noonan.41 Asked if he visited the watch floor himself, Rear Admiral Noonan explained:

…in the course of daily operations, I have a deputy in Darwin; I have a deputy in Canberra. They may be on the watch floor. It would be rare for me to go on to the watch floor and seek to have a hands-on command unless we were dealing with a safety-of-life situation. There have been a couple of occasions during my tenure of command where I have been on the watch floor and got personally involved in the management of specific medical emergencies and situations surrounding safety of Australians and people seeking to come to Australia—42

2.38 In relation to the six maritime incursions:

Senator HANSON-YOUNG: A clarification: out of the six incidents that are covered in the executive summary of the report, were any of those incidents ones for which you thought it was important for you to be on the watch floor?

Rear Adm. Noonan: No. At no specific instance during those six incidents did I feel it was necessary for me to be on the watch floor.43

2.39 The monitoring of arrivals at AMSOC was not General Campbell’s responsibility either.44 He was not present in the AMSOC during any of the incursions:

Senator CONROY: I think you indicated you were not present one floor down on any of the occasions of incursion.

Lt Gen. Campbell: That is correct.45

2.40 While headquarters maintains a general monitoring of the position of ships on their respective missions, the planning and execution of a passage for an individual ship is delegated. As Rear Admiral Noonan explained:

Typically, the employment of a vessel will be determined at a higher headquarters. That will be part of the sequencing and scheduling of ships programs both for Defence vessels and for customs vessels, so we would have a broad plan of employment for the fleet, as it were, that would be promulgated in advance. The detail around the actual planning and execution of a passage for a ship to get to a particular point would then typically be delegated down various levels of command strata until we actually get to the ship which is responsible. The ship remains responsible for the planning and safe execution of the navigational practice.46

41 Committee Hansard, 21 March 2014, p. 22.

42 Committee Hansard, 21 March 2014, p. 23.

43 Committee Hansard, 21 March 2014, p. 23.

44 Committee Hansard, 21 March 2014, p. 17.

45 Committee Hansard, 21 March 2014, p. 22.

46 Committee Hansard, 21 March 2014, p. 6.

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2.41 Rear Admiral Noonan also described the command-and-control system which provides for commanding officers of vessels to have freedom to manoeuvre inside a broad area:

Under the command-and-control system that we have in place, typically I would be providing an operational level of command. I would set an area that would typically be defined in the operation order that I have provided. For the mission command of the commander who has been authorised to conduct the mission—it might be a search-and-rescue mission, for example, where an area will be defined—the freedom of manoeuvre inside that area, under which mission command is being exercised, will be at the discretion of that commander. Typically it would be the commanding officer of the vessel or the aircraft in question.47

2.42 As Mr Pezzullo put it to the committee, headquarters had confidence that 'the ships knew where they were':

It related to an incorrect calculation of the position of the vessel. They knew where they were. As General Hurley said in some public commentary at the time, and he put it better than perhaps anyone else has, the ships knew where they were; it was the position relative to the archipelagic baseline of Indonesia, which is an archipelagic state for the purposes of the UN law of the sea.48

2.43 The joint review also mentioned the delegation of planning, and the flaws inherent in the approach of headquarters trusting that 'the ships knew where they were'. It noted that headquarters identified the need to have authoritative information on Indonesian maritime borders in order to 'inform the safe and proper conduct of the patrols'.49 However, the report stated that the requirement to remain outside Indonesian waters was 'effectively devolved' to vessel Commanders by headquarters staff. This delegation, including to people who did not have the proper training, was made without proper review and control measures, the result of which was the increased risk of inadvertent entry into Indonesian waters.50 The report found that:

Had headquarters staff implemented appropriate control measures, informed by authoritative information on Indonesian maritime boundaries, the normal post activity reporting and checks would have detected the incursions as they occurred. This did not occur. The appropriate controls were not put in place by headquarters.51

2.44 This disconnect between the actions of the vessels and the planning of headquarters was not discovered until 15 January 2014 when, according to the joint review, 'planning staff realised that the details of some post patrol reporting did not

47 Committee Hansard, 21 March 2014, p. 28.

48 Committee Hansard, 21 March 2014, p.28.

49 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 13.

50 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 13.

51 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 14.

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correlate with the generic planning for the OSB patrols on which the operational instructions were predicated'.52

Operational protocols and procedures

2.45 The joint review found that the vessels which inadvertently entered Indonesian waters were in contravention of Australian Government policy and operational instructions in relation to OSB.53 Government policy is described by the review as outlined in the Coalition's Regional Deterrence Framework to Combat People Smuggling, dated August 2013.54 The review explained that this framework:

covers a spectrum of response options available under the Operation that were translated into operational instructions to both Commander Border Protection Command (COMBPC) [Rear Admiral Noonan] and assigned ADF and ACBPS units. Two key policy constraints were articulated in these instructions:

• Activities are only to be conducted when deemed safe to do so by the Commanding Officer of the assigned BPC vessels, and

• Activities are only to be conducted outside 12 nautical miles from Indonesia's archipelagic baseline.55

2.46 Mr Pezzullo told the committee that it was the expectation of himself as CEO of Customs and of General Hurley as CDF that the two key policy constraints, as translated into strategic direction for Customs and Defence vessels, would be followed:

There were two key policy constraints that were basically non-negotiable: activities pertaining to Operation Sovereign Borders were only to be conducted when deemed safe to do so by the CO, commanding officer, of the vessel and that activities were only to be conducted outside 12 nautical miles from Indonesia's archipelagic baseline. At the level of command and control, you issue those directions and you expect that they are going to be complied with.56

2.47 However, not all Customs vessels are under Navy command. Mr Pezzullo explained to the committee that while the patrol boats are under Navy command, larger Customs vessels are contracted and it is a civilian master who has charge of those vessels.57 The contrast between the training for Navy commanding officers and the training for civilian masters was made in the findings of the joint review., which detailed:

52 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 16.

53 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 10.

54 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 11.

55 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 11.

56 Committee Hansard, 21 March 2014, p. 34.

57 Committee Hansard, 21 March 2014, pp. 33-34.

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The Review found that while ACBPS Enforcement Commanders and contracted vessel Masters are appropriately trained on the application of UNCLOS for operations inside the Australian Exclusive Economic Zone, they did not have the requisite professional training to be aware of the operational implications of UNCLOS archipelagic baseline provisions in the calculation of Indonesian Maritime Boundaries.58

2.48 Mr Pezzullo however told the committee that he had an expectation that strategic guidance for the operation connected to OSB had all 'appropriate oversight, control mechanisms, control procedures and requisite force preparation training in place'.59 Mr Pezzullo’s evidence suggested that he does not believe that the operational procedures and training needed to be more specific, as suggested by the joint review findings, in relation to how commanding officers and civilian masters should operate within the two key policies:

The review talks about what is called force preparation training as a unit is being assigned into an operation. It would not have struck us that we had to issue specific, direct instructions saying, 'Observe your stipulated navigational controls.' That, frankly, would be categorised as micro-management.60

2.49 Noting the findings of the joint review that there was a disconnect between the strategic direction given at headquarters level and the execution of that direction at vessel level, possibly by staff who had not received adequate training, the committee examined what oversight there was at headquarters level of ships in operation.

2.50 The committee sought general advice on the monitoring of ships in operation. Rear Admiral Noonan explained the information which he receives as Commander, Border Protection Command:

The level of the information that I seek back in my headquarters is not solely around the position of the ships. What I rely upon is what is typically called an operational report, and on a four-hourly or six-hourly basis I will get a standard report that provides positional information, information about what the ship is doing, and weather information about the ships operating— that is a formatted message that comes from the ship itself. That will provide me with a definitive position from that point in time.61

2.51 However, the committee also heard evidence that occasionally the ships may have had their GPS 'turned off':

CHAIR: Are you saying that the only reason you would not know where the vessels are is when we turn it off, and you are saying that you have not known sometimes? So clearly we have been are turning it off.

58 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, findings 6-7.

59 Committee Hansard, 21 March 2014, p. 34.

60 Committee Hansard, 21 March 2014, p. 34.

61 Committee Hansard, 21 March 2014, p. 25.

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REAR ADM. NOONAN: If I were conducting an operation off the east coast of Australia now—typically a drug interdiction operation, a peacetime operation—for reasons of operational security we might determine to turn off all the emitters on our ships so that other people with their iPhone apps and all their other great technology would not necessarily know where our vessel is, so that we could execute that operation.62

2.52 On the issue of ships turning off their GPS and the reports they would provide under these circumstances, the committee was frustrated by officials' reliance on Minister Morrison's blanket public interest immunity claim as grounds for withholding information from the committee. Lieutenant General Angus Campbell explained in relation to tracking ships:

I am making the point that our capacity to track is not necessarily uniformly continuous and real-time. That is all I am going to offer.63

2.53 Rear Admiral Noonan was confident in the ship commander's knowledge of their position in terms of the strategic direction not to breach Indonesian waters.64 No explanation was offered to the committee that would explain how the breakdown between expectations and execution happened so completely and so quickly in relation to a key question of policy.

2.54 Mr Pezzullo twice told the committee that this was 'not the Soviet Union' and that it was not necessary for him to issue further instructions to vessel commanders or masters beyond the general directions provided:

General Hurley and I issued general directions to Commander Border Protection Command to execute the mission as stipulated and in the terms stipulated by General Campbell. As the admiral has been indicating all through the morning, he in turn issues more precise stipulated instructions and so it cascades down. It is not the Soviet Union. We do not have to second-guess what each corporal and each XO on a vessel is undertaking. When we issue general directions, we expect that they are carried out. On occasions, things happen. On this occasion, regrettably, things happened which were contrary to those stipulations. The matter has been reviewed and there is some follow-up action in hand. There is really not much more to be said.65

2.55 The committee cannot understand how lack of specific instructions and additional training can be easily discounted as a cause of these incursions when clearly mistakes were made.

Extent to which the maritime incidents complied with international law 2.56 Professor Donald Rothwell explained that UNCLOS, which provides the overarching legal framework for the law of the sea, is particularly significant to

62 Committee Hansard, 21 March 2014, p. 27.

63 Committee Hansard, 21 March 2014, p. 27.

64 Committee Hansard, 21 March 2014, p. 26.

65 Committee Hansard, 21 March 2014, p. 34.

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Indonesia as 'it provides the legal framework upon which archipelagic baselines have been declared'.66

2.57 Dr Kate Purcell's analysis of the breaches of Indonesian waters, based on UNCLOS, was that 'the simple fact of entry without legal justification is enough to constitute breach' of UNCLOS.67

2.58 The Kaldor Centre for International Refugee Law at the University of New South Wales provided a submission to the inquiry. The submission assessed that 'the incursions into Indonesian territorial waters by Australian Navy or Customs and Border Protection vessels without Indonesian consent were in violation of the international law of the sea and the obligation to respect the territorial sovereignty of other States, which is a basic principle of international law'. Further:

[T]here is a significant and inherent risk that Operation Sovereign Borders breaches Australia's obligations under international refugee law and international human rights law. The interdiction and pushback of boats is also inconsistent with Australia's obligations under the law of the sea, including the law relating to search and rescue at sea, as well as the Migrant Smuggling Protocol.68

2.59 In his submission to the committee's inquiry, Professor Rothwell expanded on the argument that entry of an Australian Navy or Customs vessel into Indonesian waters would be a violation of international law by noting that:

the mere presence of an Australian Navy ship within the Indonesian territorial sea is not a violation of international law. Australian Navy ships enjoy a right of innocent passage within the Indonesian territorial sea and the right of archipelagic sea lanes passage within recognised sea lanes that run through the Indonesian archipelago…However, the entry into Indonesia’s territorial sea by an Australian Navy or Customs ship that has control over an asylum seeker boat by way of a tow line, with the intention of returning that boat to Indonesia, would not be consistent with the right of innocent passage.69

2.60 The Australian Lawyers Alliance argued in their submission that given the review period was only December 2013 to January 2014, there could be other breaches of Indonesian territorial waters in the period from September 2013 to December 2013, since the beginning of Operation Sovereign Borders.70

Public Interest Immunity 2.61 On 14 November 2013, the Senate ordered the production of a range of documents related to border protection and the activities of Operation Sovereign

66 Committee Hansard, 21 March 2014, p. 72.

67 Committee Hansard, 21 March, 2014, p. 71.

68 Kaldor Centre for International Refugee Law, Submission 1, p. 1.

69 Professor Donald Rothwell, Submission 2, p. 4.

70 Australian Lawyers Alliance, Submission 3, p. 5.

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Borders.71 In response, Minister Morrison provided a range of information already on the public record, including transcripts of OSB press conferences from 23 September to 15 November 2013, various media statements and the weekly operational updates commencing on 30 September 2013. The minister also offered to provide the Opposition and Australian Greens Senators with a confidential briefing delivered by OSB Commander, Lieutenant-General Campbell.72

2.62 Minister Morrison claimed that provision of the other documents requested by the Senate would not be in the public interest and cited possible damage to national security, defence, or international relations, and possible prejudice to law enforcement or protection of public safety as grounds for withholding the information from the Senate.73 On 3 December 2013, the Senate resolved that the order had not been complied with and again ordered the production of the documents. In so doing, the Senate rejected the minister's claim of public interest immunity.74

2.63 On 10 December 2013, the Senate referred an inquiry to the Legal and Constitutional Affairs References Committee in relation to the claim of public interest immunity over the documents. The committee reiterated in the strongest possible terms the Senate's right to information and emphasised that a claim of public interest immunity made by a minister remains a claim until the Senate has either accepted or rejected the claim having regard to the basis upon which it is made.75

2.64 The committee concluded that its 'ability to examine the merits of the claim has been frustrated because the committee was not provided with the relevant documents nor the information contained therein, nor even a schedule listing the documents covered by the claim'. It recommended that the Senate should 'use the political and procedural remedies…as possible means to resolve non-compliance with the orders for production of documents and the related disputed claim of public interest'.76

2.65 On 20 March 2013, the day before the committee's public hearing, the committee Chair, Senator Dastyari,77 received correspondence from Minister Morrison relating specifically to the public interest immunity issue. The minister's letter noted that the committee's terms of reference are such that information and

71 Journals of the Senate, 14 November 2013, pp 131-132.

72 Senate Legal and Constitutional Affairs References Committee, A claim of public interest immunity raised over documents, March 2014, p. 3.

73 Senate Legal and Constitutional Affairs References Committee, A claim of public interest immunity raised over documents, March 2014, p. 3.

74 Journals of the Senate, 3 December 2013, p. 214.

75 Senate Legal and Constitutional Affairs References Committee, A claim of public interest immunity raised over documents, March 2014, p. 15

76 Senate Legal and Constitutional Affairs References Committee, A claim of public interest immunity raised over documents, March 2014, pp 17-18. 77 Chair of the Foreign Affairs, Defence and Trade References Committee from 17 to 21 March 2014.

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documents which may be requested by the committee are likely to contain information relating to on-water and other operational activities similar in nature to material which was subject to the minister's previous public interest immunity claim. The letter stated very clearly that:

In the event that the Committee seeks such documents or information as part of this inquiry, I may wish to consider making a further public interest immunity claim, in line with the Government's stated position on these matters.78

2.66 In what amounted to an effort to pre-empt the committee's hearing, the letter re-stated the public interest grounds for not disclosing information pertaining to on-water and other operational matters which the minister provided in response to earlier Senate orders.

2.67 During the 21 March hearing witnesses did not raise any new public interest immunity claims as the basis for refusing to answer specific questions. However, Mr Pezzullo, Mr Bowles and Lieutenant-General Campbell referred to Minister Morrison's previous public interest claim on numerous occasions during the hearing as the basis for not addressing or answering questions on operational and on-water issues relating to the specific maritime incursions.

Other matters 2.68 The committee took evidence on a number of other matters relevant to the committee's inquiry, and it sees benefits in noting them in its report for policy makers and to assist public debate in this area.

Use of orange lifeboats

2.69 Given the detailed media reporting on the use of orange lifeboats to return asylum seekers to Indonesia, the committee looked into the implications that this practice may have had on the incursion into Indonesia. The committee also looked briefly at whether the lifeboats themselves may constitute an incursion into Indonesian waters.

2.70 Given that the lifeboats are owned by Australian Customs hardware, the committee put it to Mr Pezzullo that the Indonesians may perceive the lifeboats themselves as a breach of their territory by Australian 'vessels'. Mr Pezzullo stated that

he was not aware of the views of Indonesia on this matter:

I have got no idea. You are asking me how the Indonesians perceive the lifeboats. I have got no idea.79

2.71 Professor Rothwell offered a different perspective on the question of breach of Indonesian waters by the orange lifeboats, based on his consideration of the UNCLOS:

78 The Hon Scott Morrison MP, Minister for Immigration and Border Protection, Public Interest Immunity Claim, letter dated 20 March 2013.

79 Committee Hansard, 21 March 2014, p. 40.

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the entry into Indonesia's territorial sea by an Australian Navy or Customs ship that has control over an asylum seeker boat by way of a towline, with the intention of returning that boat to Indonesia, would not be consistent with the right of innocent passage.80

International law and government policy

2.72 Dr Kate Purcell, in her opening statement at the committee’s hearing, raised concerns regarding the government's policy of ‘turning back’ boats. In Dr Purcell’s view, interdicting boats in Australia’s contiguous zone and turning them back would ‘exceed Australia's limited right in that area to exercise the control necessary to prevent infringements of Australian immigration and customs laws and regulations’.81

2.73 It was Dr Purcell's view that ‘turning boats back’: carries a significant and inherent risk of violating Australia's obligations not to return people to persecution or other serious harm, or to places where there is a real risk that they will then be returned to other countries where there is a real risk of persecution or other serious harm. Australian Navy and Customs and Border Protection personnel are bound by those obligations in extra-territorial activities, as they are organs of the state. The obligations apply where Australia exercises effective control over asylum seekers.

2.74 Professor Rothwell raised concerns with the policy of towing asylum seeker vessels through the Indonesian Exclusive Economic Zone under the UNCLOS: the act of towing a vessel into the Indonesian exclusive economic zone, whether that is the original asylum-seeker craft or whether it is a lifeboat, cannot be consistent with Australia

exercising the right of freedom of navigation. The right of freedom of navigation exists generally within the exclusive economic zone in the high seas and it is a right available to all states. But the exercise of the right of the freedom of navigation with the intention of towing a vessel which is not otherwise incidental to the normal mode of operation of that vessel with the ultimate aim of that towing operation or escorting operation ceasing, and directing persons on board that vessel to go, presumably, to the Indonesian coast, I do not believe is consistent with the legitimate exercise of the right of freedom of navigation.82

2.75 The committee commends the evidence it received regarding breaches of international law to policy makers and government. The committee is concerned by the evidence that was provided to it about potential breaches of International Law which are happening as a direct result of the government’s policy.

2.76 The committee noted comments from Mr Pezzullo that indicated he believed that the UNCLOS had not been encoded in Australian law,83 though this statement was in conflict with later comments from Dr Purcell.84

80 Committee Hansard, 21 March 2014, p. 72.

81 Committee Hansard, 21 March 2014, p. 71.

82 Committee Hansard, 21 March 2014, p. 74.

83 Committee Hansard, 21 March 2014, p. 69.

84 Committee Hansard, 21 March 2014, p. 73.

Chapter 3

Conclusion and recommendations Committee view 3.1 At its hearing on 21 March, Mr Pezzullo advised the committee that apart from the six territorial breaches into Indonesian waters between 1 December 2013 and 20 January 2014, he was not aware of any other inadvertent breaches of another country's territorial waters, and that such breaches are uncommon:

There have been no inadvertent incursions that I can recall in the five years I have been in this role or the deputy's role. There have been times where under recognised safety of life at sea, or SOLAS, provisions we have had coordination across the two rescue command and control centres—AMSA for our part and the relevant counterpart authority in Indonesia—permission has been granted. There was a case reported in the press where ACV Triton was given permission to land persons who had been rescued, but that is by design.1

Policy direction

3.2 As discussed in Chapter 2, the joint review report noted two key policy constraints which underpinned the strategic directions given to commanders of vessels conducting missions under Operation Sovereign Borders (OSB): activities are only to be conducted when deemed safe by the Commanding Officer, and activities are only to be conducted outside of 12 nautical miles from Indonesia's archipelagic baseline.2

3.3 The committee is concerned that the two policy directions may not be compatible in the challenging real-life situations in which vessel commanders find themselves under Operation Sovereign Borders. Ensuring the safety of crew and asylum seekers while turning back or towing back vessels outside of 12 nautical miles from Indonesia's archipelagic baseline may not be an achievable policy goal, depending on the prevailing conditions, the sea-worthiness of vessels and the possible use of lifeboats.

3.4 Based on the paucity of evidence before it, the committee can only speculate on situations where a vessel commander, in following the first policy direction, may have inadvertently breached the second policy direction, particularly to ensure safety of life at sea. This eventuality, therefore, may account for some or all of the six breaches occurring under the government's policy

Recommendation 1

The committee recommends that the government consider the apparent conflict between its key policy constraints, especially in light of the difficult decisions that Navy and Customs captains are required to make as part of OSB.

1 Committee Hansard, 21 March 2014, pp. 50-51.

2 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 11.

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3.5 The committee is also concerned by the evidence it received from academic experts that the incursions into Indonesian territorial waters breached international law. The committee is concerned about the implications of this situation and urges the government to consider the evidence in relation to Australia's obligations under international law. This includes the potential breaches of international law which are committed when vessels are towed into Indonesia’s Exclusive Economic Zone, not just their Territorial waters.

Recommendation 2

The committee recommends that the government review the evidence provided to the committee in relation to Australia's obligations under international law, including the encoding of UNCLOS in Australian domestic law.

Secrecy

3.6 The committee believes that there is confusion in the public arena about Australia's actions under Operation Sovereign Borders and their effect on our relations with other countries in our region. This is mainly due to the lack of publicly available information and the government's repeated refusal to comply with Senate orders relating to OSB matters. Such confusion is also exacerbated by the government's use of military language to describe OSB matters3 and the fact that the joint task force coordinating OSB is led by a military officer, even though it is a civilian operation under the Migration and Customs Acts.4

3.7 The committee is concerned that officials who appeared at the public hearing on 21 March relied on the public interest immunity claim previously used by the Immigration Minister as the basis for refusing to answer questions on the committee's terms of reference. The committee believes this was not a proper use of the Senate's resolution of August 2009 establishing a process to be followed by officials in making a public interest immunity claim.

Recommendation 3

That the committee recommends the public Interest immunity claim relating to activities that lead to the breach of Indonesian territorial waters be referred to the Minister for Immigration and Border Protection for justification.

3.8 The committee heard from Mr Pezzullo that it was only due to Freedom of Information requests received in relation to the joint review report that the government considered releasing a redacted copy of the report.5 The committee does not believe it should take a Freedom of Information claim for the government to take its accountability responsibilities seriously. Consideration of the release of a redacted report, further to the publication of the joint review report's executive summary, should have been a consideration of government from the outset.

3 Committee Hansard, 21 March 2014, p. 10.

4 Committee Hansard, 21 March 2014, p. 10.

5 Committee Hansard, 21 March 2104, p. 4.

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3.9 While the committee acknowledges that there may be a need for certain operational details surrounding OSB to remain confidential, the committee is concerned that the normal processes of parliamentary scrutiny have been repeatedly

frustrated by the government's unwillingness to provide clear information about OSB matters to the parliament and the public.

Recommendation 4

The committee recommends that the Minister for Immigration table, as soon as possible, an appropriately redacted copy of the joint review report outlined in his letter of 20 March 2014 to the committee.

3.10 The committee notes Mr Pezzullo's comments in relation to the

implementation of recommendation 4 of the joint review report, that work on updating the operational documents, policies and procedures will be concluded by mid April 2014.

Recommendation 5

In the interests of accountability and transparency of Operation Sovereign Border activities, the committee recommends that the Minister for Immigration table, as soon as possible after April 2014, a report regarding the implementation of recommendation 4 of the joint review report.

3.11 The committee notes Mr Pezzullo's advice that the implementation of the revised force preparation training, including the revised training in relation to UNCLOS (recommendations 3 and 5 of the joint review report) is to start in May and June 2014 respectively.

Recommendation 6

In the interests of accountability and transparency of Operation Sovereign Borders, the committee recommends that the Minister for Immigration table, as soon as possible after June 2014, a report regarding the implementation of the revised force preparation training and the revised UNCLOS training.

3.12 The committee notes the joint review report's comments relating to the delegation without review of the obligation to remain outside Indonesian waters.6 From the evidence it received during its inquiry, the committee sees significant benefits in the agencies involved with Operation Sovereign Borders conducting a review to determine whether there were any issues in the chain of command from headquarters to commanders of vessels which may have contributed to the incursions into Indonesian waters.

Recommendation 7

The committee recommends that such a review be undertaken and that the Minister for Immigration table a report with the review findings by September 2014.

6 Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders, paragraph 13.

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Senator the Hon Ursula Stephens Chair

Dissenting Report Coalition Senators

Coalition members of the Committee did not support the majority view in a number of regards.

The nature of questioning during the inquiry and subsequently, some commentary in the report suffered from a failure to comprehend fundamental concepts of military command and control. This included the devolution of authority to subordinate commanders (such as the captains of vessels and aircraft or other units) and the concept of an authorized area of operation (AO). Despite explanation by witnesses, some committee members still seemed to think that a superior command was derelict in their duty if they did not know the precise point-location of a vessel or aircraft at any given point in time when in an AO.

There was a similar lack of understanding in discussion of technical issues such as the difference between ship borne equipment that emits a signal in the electro-magnetic spectrum as opposed to a passive device such as a global positioning system. Despite explanation by witnesses, some committee members did not seem to understand that for valid technical or operational reasons, a ship or aircraft may not transmit a continuous data stream providing real-time or near real-time position updates to a higher headquarters (HQ). This led to the false assumption by some committee members that vessels were not sure of their position for periods of time and that higher HQ did not know where their assets were to the required level of fidelity.

The majority report was selective in their use of evidence when highlighting the opinion of two witnesses that aspects of Operation Sovereign Borders (OSB) may not comply with the United Nations Convention on the Law of the Sea (UNCLOS). The two witnesses differed on their interpretation about critical elements of the legal basis for interdiction and yet the majority report only made comment on the area where the two witnesses agreed on the issue of control being exercised over interdicted boats in and beyond Australia’s EEZ. There was no mention, for example, of the preceding evidence by Professor Rothwell in two parts of his submission that:

Importantly for OSB, a vessel entering Australia’s territorial sea with the purpose of unloading persons contrary to the Migration Act 1958 (Cth) would not be engaged in innocent passage. Consistent with the LOSC, Australia is entitled to “take the necessary steps in the territorial sea to prevent passage that is not innocent” (Article 25 (1), LOSC). This could extend to ordering the delinquent ship to remove itself from the territorial sea, or physically removing the ship by taking control of it. A similar right exists in the case of the contiguous zone, where Australia can rely upon its capacity to “prevent infringement” of its immigration laws within the territorial sea (Article 33 (1(a)).

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And that:

With that qualification [that his analysis is limited to that materiel which is in the public domain], by way of conclusion the following can be stated:

1. Australia has a firm legal basis under the law of the sea to interdict asylum seeker vessels within the Australian territorial sea contiguous zone, or EEZ.

2. Australia has a firm legal basis to be able to exercise control over those vessels to remove them from Australia’s territorial sea and contiguous zone.

3. Australia’s ability to exercise continuing control over asylum seeker vessels interdicted within the Australian EEZ, or taken from Australia’s territorial sea and contiguous zone into the EEZ, is limited.

While the majority report notes that the views of Dr Purcell and Professor Rothwell are only two views on this issue, it makes no mention of previous public statements by the Government that joint legal advice was sought from the Office of International Law and AGS and that the Government is confident in the legal basis to conduct OSB. The majority report appears to ignore the fact that the Government has already accepted and understood that the incursions breached UNCLOS and has already taken timely and appropriate action to apologise to Indonesia and to establish why the incursions occurred and enact measures to ensure there is no repetition.

Finally, the majority report makes speculative claims about linkages between safety of life at sea and the border incursions which are not substantiated by any evidence.

Senator Alan Eggleston (Deputy Chair)

Liberal Senator for WA

Senator David Fawcett (Deputy Chair on 21 March 2014)

Liberal Senator for SA

Additional Comments Australian Greens Senators

On the 17th of January the Minister for Immigration and Border Protection announced that Australian Navy and Customs vessels had breached Indonesian territorial waters whilst undertaking activities as part of Operation Sovereign Border (OSB).

The Australian Greens are extremely concerned about the government’s response to this incident, in particular the Minister’s insistence on attributing the failure of the policy to Australian Navy and Customs officials.

Rather than placing the blame on individual Customs and Navy personnel the Australian Government must take responsibility for the dangers and complexities of the policy that has inevitably lead to the breaches.

It is evident that the policy is untenable and that there is a clear conflict between the directives provided by the Australia government that activities are only to be conducted;

• when deemed safe to do so by the Commanding Officer, and

• outside of the 12 nautical miles from Indonesia’s archipelagic baseline.

It is clear that the Commanders of these vessels are unable to ensure the safety of both their crew and asylum seekers on board whilst remaining 12 nautical miles from the Indonesian archipelagic baseline.

This policy is also continuing to compromise relations with Indonesia, one of Australia’s most important bi-lateral relationships.

The committee heard from international law experts who indicated that the breaches violated international law, in particular the United Nations International Law of the Sea, and both international refugee law and international human rights law.

Recommendation 1: That the government end its current policy of turning back boats to avoid further maritime breaches and ensure the safety of Australia’s Customs and Navy personnel and asylum seekers are not further endangered.

Reccomendation2: That Australia act at all times within the law.

Senator Sarah Hanson-Young Senator Peter Whish-Wilson

Australian Greens Senator for SA Australian Greens Senator for TAS

30

Appendix 1

Public submissions

1 Dr Kate Purcell, Andrew & Renata Kaldor Centre for International Refugee Law, University of NSW

2 Professor Donald Rothwell, Head of School, ANU College of Law

3 Australian Lawyers Alliance

4 Mr Greg Hogan

32

Appendix 2

Tabled documents, additional information and correspondence Additional information and tabled documents

1 Opening Statement at public hearing 21 March 2014 - Mr Michael Pezzullo, CEO Australian Customs and Border Protection Service

Correspondence

1 Letter from Minister for Immigration and Border Protection to Chair of the Senate Foreign Affairs, Defence and Trade References Committee, 20 March 2014

Answers to questions on notice

1 Answers to questions on notice - Dr Kate Purcell - public hearing 21 March 2014.

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Appendix 3

Public hearings and witnesses

Friday 21 March 2014 - Canberra

Mr Martin Bowles PSM, Secretary, Department of Immigration and Border Protection

Mr Michael Pezzullo, CEO, Australian Customs and Border Protection Service

Rear Admiral Michael Noonan, Commander Border Protection Command, Australian Customs and Border Protection Service

Lieutenant General Angus Campbell DSC AM, Commander, Joint Agency Task Force - Operation Sovereign Borders

Rear Admiral Michael van Balen, Deputy Chief of Navy, Royal Australian Navy

Commodore Brett Brace, Hydrographer of Australia, Australian Hydrographic Service

Dr Kate Purcell, Postdoctoral Fellow, Faculty of Law, University of New South Wales

Professor Donald Rothwell, Head of School, College of Law, Australian National University

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Appendix 4

Joint Review - Terms of Reference

Appendix 5

Joint Review - Executive Summary

Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders - Executive Summary

The Task

1. This report responds to direction from the Chief Executive Officer (CEO) of Australian Customs and Border Protection Service (ACBPS) and the Acting Chief of the Defence Force (A/CDF) that a joint review (the Review) be conducted “into the actions of the ADF and ACBPS, including Border Protection Command (BPC) during December 2013 and January 2014 in relation to the entry of Australian vessels into Indonesian territorial waters”.

2. The scope of the Review was to independently investigate the facts and circumstances surrounding the entry of Australian vessels into Indonesian waters in connection with Operation Sovereign Borders (OSB) during the period 1 December 2013 to 20 January 2014.

3. The Review has been supported by officials from the Department of Defence and ACBPS and advice from the Attorney Generals Department and the Department of Foreign Affairs and Trade.

4. In summary, the work of the review team involved analysis of; all patrols conducted during the relevant period to identify those patrols that resulted in incursions into Indonesian waters by Australian vessels; the patrols, orders, instructions and reporting arrangements associated with these incursions; planning of the patrols and the preparation of each vessel for these patrols; training provided to key personnel within the crew of each vessel; and, the reporting of each incursion once discovered.

5. The review team was directed to refer matters relating to professional conduct to ACBPS and the ADF for separate consideration.

6. The Terms of Reference stated a final report should be provided on or before Monday 10 February 2014.

Review of Policies, Instructions, Reports and Conduct

7. The Review received in excess of 2200 documents and related media from relevant agencies. This material was used to generate a narrative of events together with a review of operational instructions and details of training, support and guidance provided to units involved.

8. The review team used two approaches in undertaking the assessment of the relevant incidents. The first was an audit like assessment of each relevant incident to establish the details of any incursions by an Australian vessel into Indonesian waters. The activities in which Australian vessels were engaged at the time of each incursion are considered to be beyond the Terms of Reference for this Review.

9. The second and more substantial approach entailed a broader review of orders instructions and reports to explore the key issues arising from each incident. These were distilled into the findings and recommendations of the review team.

The Narrative

10. In summary, the Review found that RAN and ACBPS vessels inadvertently entered Indonesian waters on a number of occasions [six occasions] between 1 December 2013 and 20 January 2014 in contravention of Australian Government policy and operational instructions in relation to Operation Sovereign Borders. On each occasion the incursion was inadvertent, in that each arose from incorrect calculation of the boundaries of Indonesian waters rather than as a deliberate action or navigational error. The intent for each patrol was advised to operational headquarters in advance of each mission and was approved by Operational Commanders.

11. Australian Government policy relating to Operation Sovereign Borders is described in the Coalition’s Policy on Regional Deterrence Framework to Combat People Smuggling of August 2013. This policy covers a spectrum of response options available under the Operation that were translated into operational instructions to both Commander Border Protection Command (COMBPC) and assigned ADF and ACBPS units. Two key policy constraints were articulated in these instructions:

a. Activities are only to be conducted when deemed safe to do so by the Commanding Officer of the assigned BPC vessels, and

b. Activities are only to be conducted outside 12 nautical miles from Indonesia's archipelagic baseline.

12. Both constraints were recognised in planning conducted by operational headquarters staff and were clearly articulated in mission instructions. Directions issued to the operational headquarters and assigned units were clear that OSB patrols were not to enter Indonesian waters. It is clear in the documentation examined by the Review, that planning conducted by the operational headquarters concluded that OSB patrols could be achieved consistent with these constraints.

13. The headquarters identified the requirement to obtain authoritative information on Indonesian maritime boundaries to inform the safe and proper conduct of the patrols. Despite recognising the importance of this information, headquarters staff supervising OSB tactical missions, effectively devolved the obligation to remain outside Indonesian waters to vessel Commanders. Headquarters staff accepted, without proper review, that the proposed patrol plans would result in vessels remaining outside Indonesian waters. The implementation of appropriate control measures would have reduced the risk of the inadvertent entry of vessels into Indonesian waters.

14. Had headquarters staff implemented appropriate control measures, informed by authoritative information on Indonesian maritime boundaries, the normal post activity reporting and checks would have detected the incursions as they occurred. This did not occur. The appropriate controls were not put in place by the relevant headquarters.

15. Notwithstanding this, RAN Commanding Officers had received professional training to understand the provisions of United Nations Convention on the Law of the Sea (UNCLOS) in the context of the direction to conduct operations outside Indonesian waters. Their ACBPS counterparts, who are trained for operations inside the Australian Exclusive Economic Zone (EEZ), had not received this training as it applied to the Indonesian archipelago.

16. The incursions were discovered on 15 January when planning staff realised that the details of some post patrol reporting did not correlate with the generic planning for the OSB patrols on which the operational instructions were predicated. Once identified, Commander BPC immediately directed an initial assessment of OSB operations between 1 December 2013 and 20 January 2014. The incursions identified in that assessment were promptly and candidly advised to senior Australian Officials, Government Ministers and in turn the Indonesian Government.

17. Subsequent to discovery of the incursions, COMBPC promulgated supplementary instructions detailing the boundaries of Indonesian waters, together with specific instructions requiring increased headquarters scrutiny and approval of patrol intentions in order to prevent further incursions.

Summary of Findings

1. The Review found that a number of incursions [six occasions] by Australian vessels into Indonesian waters occurred during the period December 2013 - January 2014 in the course of undertaking Operation Sovereign Borders.

2. The Review found that each incursion was inadvertent and occurred as a result of miscalculation of Indonesian Maritime Boundaries by Australian Crews. Crews intended to remain outside Indonesian waters.

3. The Review found that Government policy regarding Operation Sovereign Borders was correctly articulated in instructions to Commanders. Specifically, that two primary considerations should be taken into account when planning activities under Operation Sovereign Borders:

a. Activities are only to be conducted when deemed safe to do so by the Commanding Officer of the assigned BPC vessels, and

b. Activities are only to be conducted outside 12 nautical miles from Indonesia's archipelagic baseline.

4. The Review found that the focus of mission preparation, planning, execution and oversight was on the safe conduct of operations. Despite clear guidance to operational headquarters and assigned units, the imperative to remain outside Indonesian waters did not receive adequate attention during mission execution or oversight.

5. The Review found that Indonesian Maritime Boundaries constituted important operational information that should have been provided by the headquarters to the Commanders of vessels assigned to Operation Sovereign Borders. This information should also have been available in the shore headquarters and used as a reference for task oversight and approval recommendations.

6. The Review found that RAN Commanding Officers had received the requisite professional training and experience to be aware of the operational implications of UNCLOS archipelagic baseline provisions in the calculation of Indonesian Maritime Boundaries.

7. The Review found that while ACBPS Enforcement Commanders and contracted vessel Masters are appropriately trained on the application of UNCLOS for operations inside the Australian Exclusive Economic Zone, they did not have the requisite professional training to be aware of the operational implications of UNCLOS archipelagic baseline provisions in the calculation of Indonesian Maritime Boundaries.

8. The Review found that the initial identification of the incursions was the result of an ad hoc intervention by planning staff.

9. The Review found that, once identified, the incursions were advised to senior Australian Officials, Government Ministers and subsequently to the Indonesian Government in a timely manner.

10. The Review found that the instructions issued by operational commanders subsequent to the incursions have effectively remediated lapses in planning of patrols.

Summary of Recommendations

Recommendation 1

It is recommended that the Chief of Joint Operations and the Deputy Chief Executive Officer (Border Enforcement) ACBPS consider the review and monitoring processes undertaken by Headquarters Joint Task Force 639 and the Australian Maritime Security Operations Centre for any individual lapses in professional conduct that contributed to incursions by Australian vessels into Indonesian waters.

Recommendation 2

It is recommended that the Chief of Navy consider each incursion by RAN vessels into Indonesian waters during Operation Sovereign Borders, with regard to any individual lapses in professional conduct.

Recommendation 3

It is recommended that Force Preparation training for Australian vessels designated to be assigned to Operation Sovereign Borders should be amended to ensure crews are prepared to conduct operations while remaining outside Indonesian waters.

Recommendation 4

It is recommended that a range of policies procedures and operational documents be reviewed as a result of the incursions by Australian vessels into Indonesian waters.

Recommendation 5

It is recommended that Border Force Capability Division review operational training provided to ACBPS Commanding Officers and Enforcement Commanders to ensure a tactical appreciation of UNCLOS.

ENDS

Appendix 6

Letter from Minister for Immigration and Border Protection to Chair of the Senate Foreign Affairs, Defence and Trade References Committee, 20 March 2014

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

Senator Sam Dastyari Chair Senate References Committee on Foreign Affairs, Defence and Trade Parliament House

CANBERRA ACT 2600

Dear Senator Dastyari

Public Interest Immunity Claim

I refer to the motion of the Senate of Wednesday 5 March 2014 referring for inquiry the issue of the positioning of Australian vessels operating under Operation Sovereign Borders.

I note that to date the Committee has not made any specific request for documents or information in relation to this particular inquiry. However, the Terms of Reference for the inquiry are such that some information and documents which may be requested are likely to contain information pertaining to on-water and other operational activities, similar in nature to material which was subject to my earlier claims of public interest immunity.

In the event that the Committee seeks such documents or information as part of this inquiry, I may wish to consider making a further public interest immunity claim, in line with the Government's stated position on these matters. Consideration is presently being given to the preparation and publication of a redacted version of the full Joint Review report which, if requested, could be provided to the Committee as soon as practicable.

I remain of the view that the disclosure of information pertaining to on-water activities and certain other operational matters would not be in the public interest where such disclosures:

• could reasonably be expected to cause damage to national security, defence, or international relations; • would, or could reasonably be expected to: i. Prejudice the investigation of a possible breach of the law or the enforcement of the

law in a particular instance; Disclose, or enable a person to ascertain the existence or identity of a confidential source or information, in relation to the enforcement or administration of the law; Endanger the life or physical safety of any person; iv. Prejudice the fair trial of a person or the impartial adjudication of a particular case;

v. Disclose lawful methods or procedures for preventing, detecting, investigation, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

Parliament House Canberra ACT 2600 Telephone (02) 6277 7860 Fax (02) 6273 4144

vi. Prejudice the maintenance or enforcement of lawful methods for the protection of public safety. • Disclose privileged legal advice.

I also draw to the Committee's attention that there is ongoing consideration of individual accountability within the Australian Customs and Border Protection Service and the Australian Defence Force as a result of the recommendations of the Joint Review. To protect the rights of individuals and to comply with natural justice requirements, it would not be appropriate at this point in time to disclose information which goes to the role of individual officers in the matters under examination.

I trust that this information is of assistance to the Committee.

You sincerely

The H n Scott Morrison MP Minister for Immigration and Border Protection '7p / 7/2014