Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Pursuant to order, I present the report of the Foreign Affairs, Defence and Trade References Committee inquiry into Operation Sovereign Borders, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

We are here to briefly discuss the report—and I will try not to take all of my 10 minutes because I know there is a fair bit that we want to get through—of the public inquiry that was held on Friday, 21 March, into Operation Sovereign Borders, and in particular the transgressions that occurred when Australian vessels entered Indonesian waters.

To begin with, I want to thank the other senators who participated in the committee—particularly Senator Fawcett and the Greens senators, as well as the Labor senators—for their participation in the process. I also thank the Customs and Border Protection staff and the Australian Defence personnel—those broadly involved with Operation Sovereign Borders who very willingly made themselves available and tried to the best of their ability to answer questions and play a positive role in the inquiry. I think that the work of Defence and other personnel, as well as staff of Customs and the Public Service, should be acknowledged and recognised in what is a very difficult policy area. But I believe that they have been put in a very unenviable position and one that they did not ask to be put in.

What we are discussing here, and what the report is trying to get to the heart of, should be a very simple matter: why did it occur and how can we make sure it does not occur again? Why did these incursions happen? How did they happen? How did they happen more than once? Why was this a repeated pattern of behaviour? And, given the unprecedented lack of transparency, how can we be confident in the assurances that we are being given by the government and others that it will not happen again?

Frankly, what is disappointing and what being involved in this inquiry demonstrated was that the total secrecy with which this policy area has been shrouded has made what should be quite easy questions for us to answer unnecessarily difficult to answer. We, as a Senate committee, under some pretence of—and, I believe, misuse of—the public immunity rules, could not get answers to very simple questions such as: 'Do the vessels that are being used at the moment by Customs contain GPS equipment?' This is about basic GPS equipment—equipment that all of us have on our mobile phones and our watches and every other device, and in all our motor vehicles. The fact that basic questions cannot be answered makes the task very difficult. So we are looking at this big policy area, and we are looking at what has been an unprecedented action—us breaching the territorial waters of another nation—and, as the Australian Senate, because of this cloud of secrecy, we cannot even get basic information on how Navy and Customs equipment is being used.

So that is the first big question, and I think there is a big question here about secrecy and the lack of information that has been provided. Again, I do not hold the public servants and the Defence personnel responsible for that. I think they have been put in a very unenviable position, where they are carrying out instructions that have been determined by the government at a policy level. I think it is a fundamental policy failure in this area of Sovereign Borders, built around this idea of secrecy. Without transparency, you are not going to have a decent, open system. That is the first issue.

The second issue is around the whole notion of diplomatic relations. There is no hiding the fact that what happened in these breaches of territorial waters had a direct impact on the Australia-Indonesia relationship and a very detrimental impact. We were given advice by all those present that, understandably—just as we would treat any kind of incursion on our borders by the Indonesian government as such—it has strained an already strained relationship between Australia and Indonesia.

The big question was: what has been the impact of these incursions on our diplomatic relations with Indonesia? The express concern was the lack of transparency that we found in trying to get to the bottom of what actually happened, how it happened and the impact that these events had on our relationship with Indonesia. You cannot help but come to the conclusion that the potential to damage our relationships with our friends and allies comes out of these activities. But, at the same time, as an Australian Senate we were unable to get to the bottom of events.

Finally, the big question is one of precedent: is this going to happen again? We were given answer after answer by those involved in Sovereign Borders—be it at the customs level, at Defence level or at a department level—indicating that it will not occur again. But there is a complete lack of transparency in everything that is occurring in this policy area. One of the recommendations—and I think the lesson from all this—is that this is what happens when transparency is lacking at a policy level. The decision that has been made at a government level to not shine a light on this—to hide away—has had a direct impact on these actions. As the Australian public should rightly be able to ask themselves, it is one thing to be given assurances from government that it is not going to happen again—be that at every level—and I believe those assurances are given in good faith. But without transparency to know what is happening, without information being provided, without shining a light on this as a policy area, I do not believe the Australian public can be confident. That is a really big issue, and I think that is the fundamental issue that came out of this inquiry.

I just want to reiterate my thanks to the other senators who participated in the process. Those who read the report will see that there were different views that were expressed, and they expressed larger policy views. But, fundamentally, if there were one message I wanted to leave it is this whole idea of transparency: the greater the openness, the greater the transparency in this policy area, the better it will be for the Australian public.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I too rise to take note of this report and to highlight that the coalition members did not support the majority view in a number of regards. There are two areas to this. One point is the issue that a lot of the concepts that were discussed were military or operational in nature, and it is difficult for people without a background in that area to understand. The other point is that it was a very political exercise.

I will come to the first point. There were two issues that were discussed in some hours of questioning during the inquiry where members of the Labor Party and the Greens who were represented there clearly struggled to understand two basic concepts around the operation. One was of military command and control. There seemed to be this thought that a superior command would need to authorise a vessel or an aircraft and would need to know exactly where it was at every point in time in order for them to have appropriate command and control. The witnesses attempted to explain the concept of an area of operation, whereby command and responsibility for navigation is delegated to the aircraft's or the vessel's captain, and they are approved—they are authorised—to operate anywhere within that area of operations or AO. Yet, question after question came out from people wanting to know why the superior headquarters had lost control, lost command or lost visibility of the vessel. There was clearly an inability of people to grasp that concept, and that led to some wrong assumptions that came out in the report.

Similarly—and Senator Dastyari just mentioned the concept of GPSs—very early in the discussion some of the senators put questions to the witnesses around things like GPs and then, when the witnesses said that there was not a continuous data stream from the vessel back to a higher headquarters, they made the assumption that perhaps a GPS had been turned off and therefore the ship was lost and did not know where it was. Again, there was a long period of questioning over a lack of understanding around the technical detail that, for very good technical or operational reasons, vessels will not always have a continuous data stream providing real-time or near real-time updates to superior headquarters. Those kinds of issues (a) wasted a lot of time in the questioning and (b) have led to some of the comments where senators from the Labor Party and the Greens feel as though things were obscured from them when, in actual fact, the witnesses were providing the information. Those opposite just did not actually understand.

The second point is that it was a very political exercise. Reading through the draft that was given to us and now the final report, what we see is that the Labor and Greens senators have deliberately avoided some of the balance that was provided in evidence. There were two experts there on the law of the sea who provided a range of views. In some areas they did not agree with each other, and in some they did. The majority report only highlighted those areas where they agreed and where it could be seen as being critical of the government's policy. What they did not highlight was, for example, the evidence by Professor Rothwell, who said:

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…

In his conclusion he talks about the fact that Australia has a very firm legal basis, under the law of the sea, to interdict asylum seeker vessels within the Australian territorial sea contiguous zone or EEZ. This report, unfortunately, is the latest example of the political exercises that are being run by the opposition that do not actually add value to understand the issue at hand. The coalition senators have, therefore, submitted a dissenting report on this report of the Foreign Affairs Defence and Trade References Committee. I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I present the report of the Foreign Affairs, Defence and Trade References Committee on overseas aid, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.