The report issued last Thursday marks a major decline in national standards of public accountability for safety of human life at sea

In David Marr and Marian Wilkinson’s magisterial 2003 history Dark Victory of John Howard’s 2001 operations to deter and repel suspected illegal-entry asylum vessels (SIEVs) carrying would-be asylum seekers, they wrote this on the Safety of Life at Sea (SOLAS) obligations under which the Navy was required to operate at that time:

“Both [Admirals] Barrie and Smith were acutely aware of the Navy’s obligation to rescue those in peril at sea. How these people find themselves in trouble does not matter. What they are up to on the ocean is irrelevant. Even the enemy in wartime must be rescued from drowning. ‘Ensuring the safety and preservation of life at sea is a fundamental mariner’s skill’, said [Admiral Geoffrey] Smith. These old rules were spelt out in a number of conventions in the twentieth century and are known to both military and civilian shipping by the acronym SOLAS: Safety of Life at Sea. They are not vague humanitarian objectives. SOLAS rules are part of the law of Australia, absorbed into both the Navigation Act and the RAN’s Maritime Commanders’ Orders. They must be obeyed.”

It seems now that the Australian border protection system and WA Coroner’s Court know better. Those old rules seem no longer to apply. The coroner’s decision, whose text was published last Thursday, shows the Coronial Court did not critically evaluate the Australian border protection system’s claims that it did not have SOLAS obligations towards the lives of asylum seekers on December 14-15, 2010, when bad monsoonal weather had prevented for days the normal Australian prudential air surveillance of the northern approach routes to Christmas Island. Fifty people died when an unexpected  boat crashed on December 15.

Space allows me to give only a few examples of how the court very questionably absolved the Australian border protection system of hitherto sacrosanct SOLAS obligations to people in peril of death at sea.

The court uncritically accepted and cited two crucial claims put to it by Border Protection Command (BPC) and by its superior agency the Australian Customs Service. First: that while BPC was responsible for surveillance they were “unaware of any government policy that requires BPC to conduct surveillance in any part of the Australian Search and Rescue Region for the purpose of providing safety monitoring of vessels during sea passage”. Second: “The reality is that in the event of a SIEV landing without being intercepted, the consequences from a border security perspective, and the difficulty in recovering the situation, are significantly less for a Christmas Island arrival than for a mainland arrival.”

The importance of these two accepted BPC and Customs claims is crucial to the tragedy. In layman terms, the coroner accepted first that BPC is required to monitor incoming vessels for border violations — but not to monitor the safety of those on board. Second, that (because of geography and the excision legislation of 2001) BPC can be much less concerned about the consequences of a SIEV arriving undetected at Christmas Island rather than on the Australian mainland — whatever any safety risk to passengers.

There were some good things in the report. The coroner conscientiously studied timelines of the rescue operation and drew attention to how it could and should have been done more quickly. The coroner called sensibly and humanely for better SOLAS training and resources at Christmas Island. But these are performance improvement recommendations.

The coroner chose not to address (at least, not in its public hearings of BPC and Customs evidence) the fundamental sickness that lies deep at the heart of the issue: the border protection system’s refusal to accept its SOLAS obligations to any and all asylum seekers potentially coming in by boat to any part of Australian territory.

A boat SIEV 220 had arrived the day before on December 14, 2010 — unexpectedly and in similar peril off the same rocky shore on which SIEV 221 crashed to pieces the next day. The coroner accepted BPC and Customs evidence that it was their “core function” safety to disembark the SIEV 220 passengers on the sheltered eastern side of the island, and then to protect the empty hulk of SIEV 220 overnight from sinking and causing environmental damage, by placing a RAN boarding party on board. The designated BPC response vessel HMAS Pirie was thus obliged by its “core functions” to remain overnight on the eastern side of the island to protect this boarding party, though it was thereby radar-blind and sight-blind for at least 15 hours to any subsequent approaching SIEV from the north.

None of these decisions were challenged in the coroner’s court. The court apparently did not think it was a “core function” of BPC to keep its response vessel on station at sea to the north of Christmas Island at this time of extreme manifest danger to human life at sea if another SIEV were to arrive overnight — as it did.

The coroner’s report — again following BPC and Customs testimony — detailed the SOLAS failings of those who sent and commanded SIEV 221. Yet the report is silent on the SOLAS responsibilities of those tasked by the Australian government to safety detect and intercept these boats.

The fact is that most of the time over the past 13 years (1998-2011), BPC has got its operational SOLAS practices right. In these years, 520 SIEV boats carrying 24,184 people have been safely detected and intercepted by BPC. There have been just five known failures of detection and safe interception in the past 14 years: SIEV 221, and two known sinkings in international waters (SIEV X in 2001, and the recent sinking south of East Java in December 2011), and two SIEV disappearances at sea in 2009 and 2010. There were some 770 estimated deaths from these five events.

Most times, the professional mariners and aircrews of BPC have protected human life at sea, whatever their organisational doctrines say.

But in the rare cases when things go wrong — as they have done now under Coalition and Labor governments — the stench of cover-up and spin takes control. The decent men and women of our various border protection command systems, overt and national security-classified, and the grieving families (many of whom live in Australia) of the hundreds of dead victims, deserve better of the nation’s judicial accountability systems when a tragedy like SIEV 221 happens.

This coroner’s report is deeply disturbing. In crucial ways, it whitewashes the Australian border protection system’s responsibility for SOLAS in all aspects of its operations. It thus sends important wrong signals to our decent servicemen and women on border security duties. As a citizen I am ashamed of the shoddiness in this report. It needs to be challenged by the legal profession now.

*Former diplomat Tony Kevin, author of a prize-winning 2004 book (Scribe) on the sinking of SIEV X in 2001, is completing a new book Reluctant Rescuers, evaluating the Australian border protection system’s doctrines and practice over the past 14 years to 2012

Peter Fray

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