BY SARAH STEPHEN
On February 20, a Senate committee began investigating what the government knew about false allegations that asylum seekers threw their children overboard.
In March, retired diplomat Tony Kevin alleged that Australian navy vessels involved in Operation Relex must have known about the sinking of another asylum-seeker boat, SIEV-X (Suspected Illegal Entry Vessel — Unknown), in which 353 people drowned. The committee then began to call witnesses who could clarify what the government and navy knew.
The committee conducted 15 days of public hearings, filling more than 2000 pages with the transcripts of testimony from 50 people. The inquiry has been full of inconsistencies. Witnesses have contradicted each other; some have told lies.
The final public hearing was conducted on July 30, but it has left many questions unanswered. Witnesses whose evidence was contradicted during later hearings were not asked to appear before the committee again. The premature end to the inquiry is a scandal.
Former defence minister Peter Reith and three of his staff members were asked many times by the committee to come forward and testify on their role in the "children overboard" lie. They refused or were barred from appearing.
Admiral Raydon Gates, the head of the defence task force formed to help the inquiry, was barred by defence minister Robert Hill from appearing before the inquiry. Also barred from appearing were the pilots who flew surveillance flights over the area where SIEV-X is thought to have sunk.
In June, Democrats senator and committee member Andrew Bartlett proposed that the inquiry subpoena Reith and his staff. A Senate committee has the power to subpoena witnesses, including ex-government ministers and ministerial staff.
With Bartlett, Labor senators make up a majority on the committee. Labor could have called Coalition government ministers to account, to expose the disgraceful operations of the government bureaucracy in covering up the children overboard lie and burying information about SIEV-X. Yet, disgracefully, Bartlett's motion lost when Labor voted against it.
According to Margot Kingston's August 27 Sydney Morning Herald web diary, "chief inquiry prosecutor John Faulkner has all sorts of private excuses for what Labor has done — the Senate would have to put public servants in jail if they refused to obey subpoena, Reith wouldn't tell the truth anyway, blah, blah, blah, but one fact stands out like a very, very sore thumb. Nothing in writing!" At no stage has Faulkner detailed in writing Labor's reasons.
Referring to the use of the courts to force recalcitrant witnesses to give evidence, Bartlett told Â鶹´«Ã½ Weekly that Labor had been giving "mixed messages to the media about how strongly they were going to go on it". Faulkner worked hard to convince the press that Labor hadn't walked away from the threat to subpoena Reith and key government staffers to give evidence.
Labor's reason for voting against summonsing witnesses, Bartlett said, "seemed to be that they thought it wouldn't work", that witnesses would "take it to court" to appeal against having to appear. Bartlett didn't see that as a problem, because the committee had "a good chance of winning" and forcing them to give evidence.
To take the heat off the issue of subpoenaing witnesses, Faulkner came up with a brilliant ploy, one which the media swallowed hook, line and sinker. At Labor's initiative, the Senate inquiry commissioned an independent assessor, Steve Odgers, to prepare a report assessing the evidence and deciding whether any of the reluctant witnesses had a case to answer. Labor argued that this report would put pressure on the witnesses to take the stand and defend themselves. Faulkner stated publicly that he did not rule out issuing summonses if Reith didn't come forward after the independent report was completed.
But the draft report of the Senate inquiry was completed before the independent assessor's report was finished. In fact, the assessor's report was still in progress when the inquiry finished its public hearings. According to Bartlett, the independent assessor's report — now completed — still hasn't been, and probably won't be, considered by the committee.
Speaking to Kingston on August 20, Liberal Senator and committee member George Brandis said triumphantly: "The independent report was a completely confected excuse which you were silly enough to swallow — that this was a bona fide attempt to advance the committee's work. It was nothing but a red herring to get the Labor Party over the embarrassment of not being prepared to exercise the subpoena power when it had insisted for months that these people must give evidence. Once the Liberal senators called their bluff, they ran a million miles an hour."
Kingston explains that Brandis called their bluff when Bartlett moved his motion to subpoena reluctant witnesses — Brandis specifically conceded that the committee had the power to do this, and the three Liberal members abstained.
Asked what he thought lay behind Labor's unwillingness to pursue the inquiry as far as possible, Bartlett told GLW that he thought Labor Party leaders "didn't want to set a precedent that allowed [subpoenas] to be used against them when they're in government. There was also a genuine reluctance to use legal means to force people to appear before an inquiry", referring to his experience in other committees of Faulkner's in-principle opposition to subpoenaing witnesses.
The farce that this inquiry has become raises serious concerns about government accountability. John Nethercote, a former senior public servant, wrote in Kingston's June 27 web diary: "The Labor opposition, when it returns to office, will no doubt enjoy the fruits of this victory which it has ceded to the government", avoiding "the opportunity to bring ex-ministers and their staff within the loop of accountability".
"The real, unstated and unstatable reason for not pressing summonses on ex-ministers and their staff has nothing to do with spending taxpayers' money, which is not invariably a top-priority consideration in Parliament House. It has everything to do with keeping the Parliamentary Privileges Act away from judicial scrutiny."
Nethercote cited comments by Dr Ian Holland of the Parliamentary Library on the evasive strategy of commissioning an independent assessor's report: "the committee essentially capitulated in the face of the executive's determination ... it is not clear what an outside lawyer might achieve that would not be ably and properly achieved by the committee itself."
Holland's view was that "the approach taken by the committee continues to give the executive the upper hand in its tussle with the Senate, despite the government lacking any unequivocal legal basis in its stance... until one of the houses tackles a government over ministerial staff, using the full force of the powers available to it, ministerial staff will remain in the accountability vacuum so condemned by oppositions and beloved of governments."
Kingston's August 20 SMH web diary published Labor opposition leader Simon Crean's reply to a letter from Judith Quilter, criticising Labor's role: "Please check your facts before you accuse us of being craven. We have pressed, and are continuing to press for the truth at the children overboard inquiry. The public hearings have ended, at the committee's decision, not ours, and if necessary the committee can reopen them. The committee is now continuing its consideration of the issues and its conclusions, and the Labor members will continue to press for the truth to be told."
Labor committee members were hardworking; and there was no doubt a genuine willingness to press for the truth, but not at all costs. They weren't prepared to seek out the truth at the expense of setting precedents which might put a future Labor government in the "awkward" position of having to fully account for their actions.
Bartlett pointed to another stalling point in the inquiry: "On the issue of SIEV-X, we were hitting a brick wall, coming up more and more against arguments of national security" as the reason for not revealing information or not allowing people to appear before the committee. It is hard to see what the issues of national security could be, an argument which is usually only reserved for war-time, but it is tempting to conclude that this was a simple way for the government and navy to avoid telling the truth.
It is unclear whether the senate committee's report, due to be presented to the Senate on September 25, will draw clear conclusions or not.
Was it was a mistake, an oversight, that the necessary information wasn't passed on to the navy's surveillance pilots flying over the search area between Indonesia and Christmas Island? Or was it a deliberate decision at the highest levels of the government and the navy, a decision to pretend that the navy received no information about SIEV-X?
It seems that when the report is released, we still won't know the truth — a disgraceful reinforcement of the lack of accountability of our parliamentary system. Only a judicial inquiry has both the legal power and the independence necessary to thoroughly investigate why 353 asylum seekers aboard SIEV-X drowned without the navy coming to their aid.
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From Â鶹´«Ã½ Weekly, September 11, 2002.
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