TONY KEVIN. Shipwreck tragedy raises broad issues of duty of care in border protection

Oct 3, 2016


Last week saw three days of hearings (reported in The Guardian by Ben Doherty),adjourned on Wednesday 28 September until Tuesday 4 October as plaintiffs await key documents from the 2012 WA Coroners’ Court inquest into the disaster which drowned 50 people on 21 December 2010, when a SIEV boat crashed in heavy seas into low jagged cliffs at Flying Fish Cove, Christmas Island. Township-dwellers watched horrified from above as Australian Navy and Customs rescue crews in inflatable motor vessels arrived too late to tow the breaking-up boat off the rocks. Despite valiant efforts they were only able to save 39 people from the water. The class action is on behalf of families of dead victims, traumatised survivors and traumatised people involved in the SIEV221 rescue operation.

The Coroner’s inquest in 2012 was exhaustive and lengthy. It raised questions about three time horizons of possible duty of care negligence. First, why did Christmas Island not have a functioning local maritime rescue capability, in a season when asylum-seeker boats were coming down in large numbers, in all weathers, and at irregular frequencies? Second, why had the two major Commonwealth Border Protection Command (BPC) vessels then at the island, HMAS Pirie and ACV Triton, been left stationed since 20 December and overnight, on the south-east side of the small hilly island, out of radar surveillance range despite the medium-rated risk of more boats arriving from the north-west, to supervise routine procedures involving a boat SIEV220 that had arrived on 20 December – at a time when bad weather had prevented air surveillance for four days? Third, why the unexplained delays in the BPC command chain on the day, from the time 5.20 am when people walking on the clifftop first sighted the dangerously drifting SIEV221, as close as 100 metres to the cliffs, to the time when rescue crews reached the disaster scene nearly two hours later?

The documentation from the 2012 Coroner’s inquest is seen as vital in informing the plaintiffs’ cross-examination of Commonwealth witnesses. But there have been delays in providing a full set of this material to the plaintiffs and it must be vetted by defendants first. They could raise issues of national interest confidentiality that may require the judge to consider requested redactions. Such issues were encountered in the SIEV221 inquest and the subsequent SIEV389 inquest, and involved lengthy court time and delayed hearings.

Also, there are witness issues. One witness requested by the plaintiffs has apparently declined to attend. The defence has refused to accept pre-recorded sworn testimony by some witnesses that is not cross-examinable in court, and has questioned the relevance of some plaintiff- proposed witnesses. These matters continue to be reviewed pending resumption, hoped for on Tuesday.

This is the first – and perhaps only – time that Australian border protection protocols and practices that became entrenched after 2009 under the former Rudd-Gillard-Rudd Labor government are being judicially challenged as allegedly negligent of the duty of care to unauthorised asylum-seekers in distress at sea, leading to avoidable loss of life.

My 2012 book ‘Reluctant Rescuers’ ( argued that a culture of systemic safety-of-life-at-sea negligence had developed in higher management levels of Border Protection Command and its cooperating agencies, under the pressures of large numbers of arrivals of asylum-seekers in dangerous small boats that often got into difficulties on the way from Java to Christmas Island and sought rescue. The then opposition was making much political capital out of this situation. The last three years of Labor government were marked by a number of questionable tragedies involving too little Australian rescue action, taken too late.

Even after the shock of SIEV221, there continued to be awful incidents of major avoidable loss of life in the Java- Christmas Island sea gap. Most notorious cases were the SIEV389 in 2012, when a boat obviously in trouble and from which passengers made telephoned distress calls over many hours, was left unaided in international waters for well over 10 hours. Rescue action only began when it was seen by over-the-horizon surveillance to have capsized. Half the passengers were drowned. Then, on 5 June 2013, a boat was seen from the air drifting without engine power just 28 miles from Christmas Island – just 4 miles outside the ‘contiguous zone’ border protection interception area. Passengers were crowded on the deck, waving to the Australian surveillance plane, but this was not interpreted as a distress call. A Border Command vessel only arrived twelve hours later, by which time the boat had capsized. Wreckage and bodies were later sighted from the air many miles to the west, having drifted away in known prevailing currents. No survivors or bodies were recovered, hence there was no requirement for a coroner’s inquest.

With the change of government in September 2013 came a radically different approach: Operation Sovereign Borders. Now, SIEVs were to be forcibly intercepted in the high seas, closer to Indonesia, taken back to the edge of Indonesian territorial waters, and left there with with working engines and just enough fuel to get back to shore; replacement boats were to be provided if needed. By these means, contrary to the norms of free navigation – and in the views of some critics, constituting piracy – deaths at sea in the Java-Christmas Island sea gap ceased. Coalition Ministers continue even today to boast of the success of this policy in saving lives, and of the risk to life in the previous Labor policies.

The SIEV221 disaster in December 2010 was an opportunity not taken by the Labor Government to fundamentally review its interception and rescue policies and practices. Lives continued to be lost that could have been saved. It was left to the Abbott Government in September 2013 , nearly three years later, to draw its own sharply different policy conclusions. Mr Shorten has now in effect endorsed the new approach.

How much of this broader policy context might be canvassed in the current SIEV221 civil action – when it again gets underway – remains to be seen.


Former diplomat Tony Kevin is the author of A Certain Maritime Incident: the sinking of SIEV X (Scribe Publications, 2004) and Reluctant Rescuers (2012)

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