Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I present documents listed on today's Order of Business at item 20 presented since the Senate last met.

The list read as follows—

GOVERNMENT RESPONSE TO PARLIAMENTARY COMMITTEE REPORTS (pursuant to Senate standing order 166)

Foreign Affairs, Defence and Trade References Committee—Report—Breaches of Indonesian territorial waters, dated June 2014. [Received 27 June 2014]

GOVERNMENT DOCUMENTS (pursuant to Senate standing order 166)

Institutional Responses to Child Sexual Abuse—Royal Commission—

  Interim report—Volumes 1 and 2, dated 30 June 2014. [Received 30 June 2014]

  Report of Case Study No. 2—YMCA NSW's response to the conduct of Jonathan Lord, dated June 2014. [Received 30 June 2014]

In accordance with the usual practice and with the concurrence of the Senate, the government response will be incorporated into Hansard.

The response read as follows—

Australian Government response to the Foreign Affairs, Defence and Trade References Committee report: Breach of Indonesian Territorial Waters

Introduction and Background

The Government welcomes the opportunity to respond to the Foreign Affairs, Defence and Trade References Committee's (the Committee) recommendations from the report investigating the Breach of Indonesian Territorial Waters.

As reported by the Minister for Immigration and Border Protection and the Commander Joint Agency Task Force (JATF) on 17 January 2014; during operations conducted in association with Operation Sovereign Borders, Australian vessels entered Indonesian waters in breach of Australian Government policy.

On 17 January 2014, the Minister for Immigration and Border Protection and the Commander JATF also announced a joint review would be undertaken by the Australian Defence Force (ADF) and the Australian Customs and Border Protection Service (ACBPS). On 21 January 2014, the Chief Executive Officer (CEO), ACBPS and the Acting Chief of the ADF initiated the internal review into the actions of the ADF and ACBPS, including identifying facts and circumstances and any operational or procedural weaknesses, with a view to recommending necessary remedial actions.

The Review, entitled the Joint Review of Operation Sovereign Borders Vessel Positioning: December 2013January 2014 (the Review), was completed on 10 February 2014, with an executive summary including findings and recommendations made publicly available on 19 February 2014. A redacted version of the Review was also later made publicly available.

The Review made five recommendations, all of which have either been implemented or are in the process of being implemented.

The Government has full confidence that no such breach will occur in future.

The Government has accepted, partially accepted or noted six of the seven Committee report recommendations.

The Government's response to the recommendations made by the Committee follows.

Addressing the Recommendations of the Committee

Not Accepted

The Government does not accept the premise that there is a conflict between the policy constraints.

The Review found the incursions occurred as a consequence of the incorrect calculation of the archipelagic baselines.

Relevant and experienced operational authorities have determined that Operation Sovereign Borders activities can be achieved consistent with Government policy. This is consistent with the findings of the Review.

Noted

The Australian Government takes seriously its international legal obligations, including those under United Nations Convention on the Law of the Sea (UNCLOS). Relevant obligations are implemented in a variety of ways. Operation Sovereign Borders Joint Agency Task Force (JATF) has sought and continues to seek legal advice on an ongoing basis from the Australian Government Solicitor and the Attorney-General's Department on matters relating to the implementation and execution of Operation Sovereign Borders. Consistent with the past practice of all Governments in relation to legal advice, it would not be appropriate to reveal the content of this advice.

Noted

The Minister and Assistant Minister for Immigration and Border Protection have made public interest immunity claims in relation to on-water and operational activities relating to Operation Sovereign Borders.

On 20 March 2014, the Minister for Immigration and Border Protection wrote to the Committee outlining the reasons for which the public interest immunity claim was made. In the letter, the Minister states:

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;

ii. 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;

iii. 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

vi. Prejudice the maintenance or enforcement of lawful methods for the protection of

public safety.

disclose privileged legal advice.

Accepted

The redacted copy of the Review report was publically released under Freedom of Information on 4 April 2014. A copy was also tabled in the Senate on 21 May 2014 in response to Question on Notice AE14-312 received from Senator Conroy during the 2013/14 Additional Budget Estimates.

A copy of the redacted Review report is also attached to this response.

Partially accepted

Recommendation Four of the Review states:

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.

This recommendation has been finalised, with all relevant operational documents reviewed by Border Protection Command in consultation with the Department of Defence and where appropriate, amended to include additional advice regarding the conduct of operations and the application of internal control measures.

The principal changes that have been made to the policies, procedures and operational documents are:

The Government does not intend to table a further report.

Partially accepted

Recommendation Five of the Review states:

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.

A comprehensive review of operational training has been initiated. Remedial training for Commanding Officers and Enforcement Commanders has been implemented as an interim measure. Permanent measures will be in place by the end of June 2014. Restrictions on entering foreign territorial waters are articulated in current operational documents and will be re-iterated in future operational documents. Commanding Officers and Enforcement Commanders have also been appropriately briefed.

The Government does not intend to table a further report.

Noted

The Review did not find that issues in the chain of command contributed to the incursions into Indonesian waters and accordingly an additional review is not warranted.

The ADF and ACBPS have completed administrative inquiries into the conduct of headquarters personnel assigned to Joint Task Force 639, Border Protection Command, the Australian Maritime Security Operations Centre and Headquarters Joint Operations Command.

The former Chief of Joint Operations, Lieutenant General Ash Power, and Deputy CEO Border Enforcement, Roman Quaedvlieg accepted the findings of professional conduct inquiries that none of the headquarters officers involved deliberately contravened orders not to enter Indonesian waters. However, both authorities determined that there were individual lapses in professional conduct that warranted further action.

As a result of the inquiries, administrative action has been implemented against three Defence and one ACBPS personnel attached to headquarter elements. Relevant administrative action includes administrative sanctions and formal counselling.

The Chief of Navy also concluded his inquiries into individual lapses in professional conduct and in addition to his action against seven Commanding Officers in April 2014, has completed

administrative action which has resulted in informal counselling of a further six officers in non-command roles.

During the course of administrative inquiries into the actions of headquarters personnel it became evident that the conduct of ACBPS officers serving on Australian Customs Vessels also required further investigation.

Further investigation revealed that during the course of Operation Sovereign Borders, a member of the crew serving on board an Australian Customs and Border Protection Vessel identified potential issues with the methodology being used to calculate the Indonesian archipelagic baseline which might lead to the vessel entering Indonesian waters. Although this was brought to the attention of the ACBPS officer in charge of the vessel, he failed to adequately report and escalate this

information to his chain of command and continued with the operation, resulting in a breach of Indonesian waters. Code of conduct action has been initiated in relation to this officer and is yet to be finalised.

All professional conduct inquiries conducted by the ADF and ACBPS have yielded findings consistent with those of the Review. That is, that the incursions were inadvertent, and occurred as a consequence of incorrect calculations of Indonesian Maritime Boundaries by Australian crews.

Dissenting Report — Coalition Senators

The Government notes the dissenting report of Senators Eggleston and Fawcett.

Additional Comments — Australian Greens Senators

Not Accepted

The Government's policy is that any persons who seek to travel by boat to Australia without a visa will be turned back where safe to do so.

Safety of life at sea is, and will remain, the first priority of the Government.

The Government is confident in the measures put in place to prevent further breaches.

Australian Greens Senators Recommendation Two

That Australia act at all times within the law.

Accepted

The Government is confident there is a sound legal basis for the conduct of Operation Sovereign Borders.

The following attachment can be obtained from:

Attachment: Joint Review of Operational Sovereign Borders Vessel Positioning: December 2013 — January 2014: Redacted Versi on

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

by leave—I move:

That the consideration of the government response just tabled be listed on the Notice Paper.

Question agreed to.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I present volume 17 of Rulings of the President of the Senate, which covers Senator Hogg's time as President.

The Clerk: Documents are tabled pursuant to statute. Details will be recorded in the Journals of the Senate and on the Dynamic Red.

Details of the documents also appear at the end of today’s Hansard.