Incursions into Indonesian waters need public, independent inquiry

RETIRED admirals have one clear advantage over serving officers - they can say things serving officers dare not mention.

So it was last weekend that we heard from retired Rear-Admiral Ian Richards: ''If an Australian warship strays into Indonesian waters contrary to our government's wishes and clear rules of engagement, her captain should be called to account. When seven warships stray into Indonesian waters, apparently contrary to our government's wishes, the author(s) of the rules of engagement should be called to account.''

The admiral's letter to the editor said what many serving Defence personnel must be thinking about the incursions by Navy ships into Indonesian territorial waters late last year and early this year. He concluded that the chastising of seven captains was another case of pillorying the professionals to placate the political operators.

According to the official story there were six incursions, with some involving more than one ship. An internal review of the incidents found that the ships had entered Indonesian waters inadvertently and recommended that the Chief of Navy consider each incursion to determine any individual lapses in professional conduct. The activities in which the Australian vessels were engaged at the time were considered to be ''beyond the terms of reference of the review''.

In response to the review's recommendations the Chief of Navy, Vice-Admiral Ray Griggs, removed one commanding officer from his command and ordered that another be administratively sanctioned. The remaining commanding officers were to be counselled.

The government hopes the matter will end there, nicely swept under the Defence secrecy and privacy carpets.


Serving officers are expected to grin and bear it, no matter how they have been wronged in the process.

As Admiral Griggs put it, ''I think it is a healthy sign for Navy's leadership that all of the commanding officers involved have willingly accepted accountability for their own actions and that of the ship or ships under their control.'' And then, to ensure that no nasty media are prying, he added that the Privacy Act limited the amount of specific information on the outcome of individual cases that could be disclosed. No further information would be provided, he said.

The government is quite happy to see the Navy's reputation tarnished by the whole affair - rather than its own reputation. To achieve this, the public is asked to believe that seven commanders, on six different occasions, with all the navigational equipment at their disposal, had no idea they were in the wrong locations. But if that were the case, then, as Admiral Richards put it, there was something wrong with the rules of engagement and someone far more senior than a ship's captain should be held to account.

But who? The Chief of Navy, Ray Griggs? The Head of Customs, Michael Pezzullo? The Minister for Immigration, Scott Morrison? The very people who set up the review, its terms of reference and the punishment that followed.

And what of the future? What does a captain do in a difficult situation?

Mr Pezzullo said in a statement following the incidents that Border Force Division would ensure a ''tactical appreciation of the United Nations Convention on the Law of the Sea.'' What does this mean?

Asked by Fairfax Media, a Customs spokesman provided no real answer, simply saying that the review had made a number of recommendations and these were being implemented.

Hopefully the ships' commanders have been given more detailed and precise instructions on what to do in specific situations and not just handed a copy of the 208-page convention.

A few obvious scenarios require clear rules of engagement. If the Australian Navy tows an asylum seeker boat back to just outside the Indonesian 12-mile limit and the boat then heads towards land and gets into trouble in Indonesian territorial waters, would the Australian Navy vessel enter Indonesian territory to save passengers from drowning?

If asylum seekers were to drown after their boat had been towed to the territorial waters' limit, who would be held responsible? Would the captain of the Australian Navy vessel be held responsible, or would the Customs and Navy hierarchy, the minister or the government step in and absolve the captain of all responsibility?

''He was just following my orders,'' I can hear Prime Minister Tony Abbott saying, before adding, Barry O'Farrell-like, ''As someone who believes in accountability, in responsibility, I accept the consequences of my action and herewith resign.'' Frankly I just don't see this happening. Asked specifically how naval personnel should respond to the above scenarios, the Customs spokesman said the priority for all agencies involved in Operation Sovereign Borders was the protection of life at sea. The safety of Border Protection personnel, as well as potential illegal immigrants and vessel crews, was paramount in these operations.

The spokesman for Scott Morrison avoided the questions, simply saying that officers operated in accordance with their training and respected and observed Australia's obligations under international law. But the government's overall asylum-seeker policy shows little respect for international law as the UN High Commissioner for Refugees regional co-ordinator, James Lynch, made clear last week.

He said Australia's policy of returning boats to Indonesia, even if people had entered Australian waters or landed on Australian territory, was in breach of the refugee convention. Ships' captains should not be expected to decipher international conventions. They should have clear instructions and only face disciplinary hearings when they disobey them.

There is good reason to distrust Defence Force internal inquiries, as those with a long service in the Navy well know. After the aircraft carrier HMAS Melbourne sliced through the Voyager in 1964 it took four years and two royal commissions before the truth came out. The joint RAN-US Navy board of inquiry into the Melbourne and USS Frank E. Evans collision in 1969 also was found wanting.

The only way we will find out what happened off Indonesia is to have a wide-ranging public, independent inquiry. Only then will those truly responsible be called to account.