Inside Story

The deaths on 21 June 2012: WA’s coroner reports

Over one hundred people died in the waters between Indonesia and Christmas Island on 21 June 2012 after repeated calls for help. This week’s coroner’s report calls into question Australian search and rescue practices, writes Tony Kevin

Tony Kevin 1 August 2013 2365 words

This photograph, taken from the merchant vessel JPO Vulpecula on 21 June 2012, shows survivors of SIEV 358 on the hull of the Kaniva.
Photo: Coroner’s Court of Western Australia

THE WA coroner, Alastair Hope, yesterday handed down his keenly awaited findings in the matter of 102 deaths (seventeen bodies retrieved and a further eighty-five people presumed drowned) in the case of SIEV 358, an overloaded asylum-seeker boat that capsized at around 4.30 am Perth time on 21 June last year.

The capsized hull and survivors were detected by an Australian Border Protection Command surveillance aircraft eight-and-a-half hours later, at around 1 pm on 21 June. They were 110 nautical miles from Christmas Island and 107 nautical miles from Indonesia. The Australian Maritime Safety Authority’s Rescue Coordination Centre, or RCC, promptly issued a Mayday emergency alert. Prompt rescue-at-sea operations by three merchant ships and two naval frigates saved 110 lives. The coroner commended this rescue phase.

The boat had made sixteen distress calls by phone to RCC Australia over fifteen hours, the first at 7.52 pm on 19 June and the last at 11.16 am on 20 June, some seventeen hours before the boat sank. Its location was established by RCC Australia at 11.26 pm on 19 June; it was then still only 36 nautical miles from Indonesia. It then proceeded south, at speeds between one and four knots. It was monitored at all times by Australian agencies, which agreed that it had forward motion under engine power.

Initial media reporting and commentary was critical of the Australian maritime safety authorities’ lack of rescue response to the distress calls. Fairfax’s Michael Bachelard, for example, wrote, “Perhaps AMSA [Australian Maritime Safety Authority] staff thought the distress of the asylum seeker vessel was a hoax, an attempt by the people smugglers to get their cargo just halfway to Australia and let the Australian navy do the rest.”

The WA coroner’s inquest was announced in May 2013. Five days of hearings, which I attended, took place in Perth in June and July. Until shortly before the inquest began, the existence of an internal Customs and Border Protection Service review of the incident, commissioned in June last year, had not been revealed either publicly or to the coroner; the review report (also known as the Buckpitt Review) was eventually released in redacted form at the coroner’s request on 26 July, the last day of the inquest.

A third key public document is the opening address by the counsel assisting the coroner, Marco Tedeschi: in effect, “the case for the prosecution.”

THE coroner essentially addressed three issues, two substantive and one procedural. Had RCC Australia’s evaluation of distress calls from the boat and its search and rescue response been appropriate? Had RCC Australia’s transfer of rescue coordination responsibility to its Indonesian counterpart BASARNAS been responsible, given RCC Australia’s knowledge of Indonesia’s very limited rescue-at-sea resources and capabilities? Had important knowledge been deliberately withheld by Commonwealth agencies from the coroner and from WA senior police tasked to report to him on the incident, until this cover-up was exposed in the last few days of the inquiry?

RCC Australia evaluation of and response to distress calls

The coroner made no recommendations on the crucial first issue. He recognised agencies’ difficulties in assessing asylum-seeker distress calls, but (on pages 5, 35–37, 41–43, and 49–51 of his findings) he clearly distanced himself from RCC Australia’s claim that it had responded to distress calls from SIEV 358 appropriately. In relation to this question, he grappled perceptively with sharp divergences of testimony and data.

The court heard two harrowing survivor testimonies and tapes of sixteen telephone distress calls to RCC Australia. It also saw video footage of the frail, overloaded boat’s unsteady progress through rough seas on 20 June. Many in the courtroom concluded from this testimony and evidence that passengers’ distress had been genuine and well-founded: that the grossly overloaded boat had been in a situation of imminent danger of sinking throughout the voyage; that it had suffered hull damage and was taking on large volumes of water, putting cooling and bilge pumps under great strain; and that it was moving very slowly through increasingly turbulent seas. It was a fatal foundering waiting to happen.

But RCC Australia rescue coordinator Alan Lloyd testified strongly over three days that RCC Australia had judged these distress calls, delivered in a “calm discussive tone,” to be “the normal refugee patter.” That the boat had been monitored at all times as moving forward under engine power indicated, he said, that it was “not in immediate danger of sinking and was capable of travelling under its own steam.” According to RCC Australia, the final foundering occurred because of an unexpected and catastrophic failure of a key pump fitting, not because of cumulative weakening of the boat; were it not for that event, the boat might have made it to Australian interception nearer Christmas Island (an estimated twenty hours later).

Both Alan Lloyd and the Customs Service’s internal review argued that although most of these boats are obviously unsafe by Australian standards, this does not make them in imminent danger of sinking as defined in the National Search and Rescue Manual. Otherwise, distress calls from almost every such boat would have to be responded to. Since August 2010, Lloyd said, 209 of the 272 asylum vessels that had arrived in Australia had “interacted” with rescue authorities and all but eight had arrived safely. He asked, “When misleading information is provided, what can a search and rescue authority do?”

But a graph on page 70 of Customs’ internal review indicates that unjustified distress calls from asylum-seeker boats happen much less frequently than was suggested by Lloyd’s testimony. The graph shows that 93 per cent of incoming boats made distress calls in 2012, of which 21 per cent were “unnecessary alerting,” defined as calls made when a boat is not in immediate danger and is capable of travelling under its own steam. It follows (by simple arithmetic) that over 77 per cent of the distress calls made from boats in 2012 were found, when Border Protection Command ships went to assist the boats, to be “necessary alerting” of distress.

The author of the Customs and Border Protection review, Jeff Buckpitt, reported the collective view of Commonwealth agencies that SIEV 358 had engaged in unnecessary alerting. He wrote (paragraph 20, page 68):

The vessel had characteristics that further complicate this issue. The vessel, while not in imminent danger or meeting other conditions for SAR [search and rescue], sailed to Christmas Island in a condition that made its journey extremely hazardous. The vessel had limited water, was overcrowded and was taking on water. Another characteristic that existed with the vessel was the expectation that calling Australian authorities when sufficient distance had been made from Java would result in Australian authorities bringing the passengers to Christmas Island.

There is a clue here: the fact that the boat had started to make distress calls to RCC Australia from soon after it left Indonesian territorial waters may have locked the Border Protection Command–Australian Maritime Safety Authority decision-making system into a collective view that this boat was not in real danger.

The People Smuggling Operations Group was a shadowy inter-agency intelligence-based committee on which Lloyd sat in his personal capacity, but RCC Australia did not have access to its judgements. Lloyd told the inquest that this body had “irrefutable” independent evidence supporting RCC Australia’s assessment that the boat’s distress calls were unnecessary at the time of the calls.

Yet it emerged that there was no additional evidence at all: merely that the People Smuggling Operations Group had evaluated the same information from the boat as had RCC Australia, and reached the same conclusion. A case, in other words, of mutual agency reinforcement of views: we all believe it, so it must be true.

I think it significant that the coroner did not endorse these assessments by RCC Australia and the People Smuggling Operations Group.

Transfer of rescue coordination responsibility to Indonesian agencies

In the first seven hours of contact with the boat, RCC Australia’s main concern had been to transfer the rescue coordination responsibility to its Indonesian counterpart, BASARNAS. Questioning Lloyd, Tedeschi established that RCC Australia was aware of BASARNAS’s performance shortcomings. Courtroom testimony referred to RCC Australia having to “coax” BASARNAS to do its job, things being done “in Indonesian time,” RCC Australia using an embassy backchannel as a “heartbeat monitor,” and so on. (All such diplomatically sensitive references are blacked out in the declassified Customs review)

It didn’t really matter, because RCC Australia had already concluded that SIEV 358 was travelling safely enough. We may assume that, had RCC Australia thought the distress calls justified, it would have launched an Australian search and rescue response. Instead, it was putting BASARNAS and other Indonesian authorities (navy, maritime police) through what amounted to a real-time training exercise. The results were lamentable. Indonesia sent no rescue ships to the SIEV’s location, nor did BASARNAS make any effective calls to merchant shipping.

The Australian Maritime Safety Authority knows that BASARNAS is not an effective search and rescue organisation, but the Australian authority pretends that it is. And BASARNAS pretends not to know that Australia is doing this.

The Australian Maritime Safety Authority’s efforts to make Indonesia responsible for search and rescue efforts in its own search and rescue region (which extends to and surrounds Christmas Island) are, in my opinion, doomed to fail, because Indonesian agencies do not want to rescue these boats in these seas. The reality is that when the Australian agencies – Customs, Defence, Border Protection Command or RCC Australia – believe any boat is in genuine distress in these waters, they will usually act. But sometimes, in the case of some asylum-seeker boats, they act only after long and at times fatal delays in decision-making.

The coroner’s findings and three recommendations in this area were correct and laudable. They will not solve the problem.

Was there a Commonwealth cover-up?

Through most of the inquest, the coroner politely attempted to hide his increasing irritation at Commonwealth barristers’ withholding from the court of relevant classified material. He was treated to lectures on the difficulty of using in court evidence based on classified sources without breaching national interest confidentiality. Dark references were made to Sankey v Whitlam.

It all boiled over on the last day. It then emerged that a senior security-cleared WA police officer (a visibly angry Detective Inspector Bryson) had spent a year compiling his report for the coroner, with all knowledge of Customs’ internal review withheld from him until half an hour before he took the stand. It got worse: Tedeschi said that the court had only become aware of the internal review when a member of the public had alerted him to its existence two weeks before the inquest began.

Finally, the court was given sufficient access to the classified and declassified versions of the internal review to ascertain that it broadly supported RCC Australia’s submission. But the episode left questions as to why the Commonwealth had tried to suppress public knowledge of its own review (even in declassified form) for as long as possible.

This experience confirmed my view that diligence and vigilance is required in public-interest monitoring of Customs and Australian Maritime Safety Authority paper trails on asylum-seeker boat sinking and rescue incidents.

The coroner made the sensible recommendation that in future material of this kind be “volunteered, or at least its existence… made known” to those investigating deaths on behalf of the coroner.

THIS was a well-run, informative, public-interest inquest. It didn’t uncover any systemic effort by government agencies to accord a second-class rescue response to asylum seekers, or to treat them with disdain.

It did, however, on my reading of the findings, highlight a more subtle cultural problem. (Jack Waterford wrote well on this point in “Time for Scrutiny on Boat Rescues,” in the Canberra Times last weekend). Australia’s closely interlocked border protection and maritime rescue agencies have developed a set of mutually reinforcing and highly subjective perceptions about the nature of the dangers asylum seekers expose themselves to on journeys at sea. There is an unacknowledged resentment that the search and rescue system, developed to help sailors in “real” distress, is being “misused” by people who choose to travel in these manifestly unsafe boats. There is a grim determination to stick to the letter of the National Search and Rescue Manual in determining when these unsafe boats send “unnecessary alerts.”

There is an important broader issue here, too. Australia’s manual incorporates language that goes well beyond the classic international search and rescue gradings of Alert, Pan Pan and Mayday phases. It calls for fine judgements to be made by RCC Australia as to whether a reported distress situation is in an Uncertainty, Alert or Distress phase. Three individuals with extensive Royal Navy and North Sea harbourmaster experience have commented in private correspondence with me that under British search and rescue practice, the situation of SIEV 358 as reported in the sixteen phone calls to RCC Australia would definitely have triggered at least a PanPan Alert – that is, a request to nearby shipping to investigate. Paragraph 2 on page 5 of the coroner’s findings is suggestive of his views on this.

Mostly, these boats somehow get through. In around 2.5 per cent of cases (or around 1100 confirmed or probable deaths in the past four years) they do not. In any other emergency rescue context, a mortality rate of that magnitude would represent failure.

This coroner’s inquest documentation will be a goldmine for future historians trying to establish why so many people have died at sea in Australian border protection and related search and rescue operations. It shows how much has to be done if we are to quarantine Australia’s rescue-at-sea protocols and practices – which should be utterly impartial and based only on the need to protect human lives at risk – from other policy objectives and value judgements. •