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Christmas Island capsize demands coronial inquest


It is true that 'only' two people died in Monday's apparently mishandled Border Protection Command (BPC) interception at sea of an unnamed asylum seeker boat. But there are questions to be answered nonetheless.

The Australian Customs vessel Ocean Protector made physical contact with the boat, reportedly carrying around 95 people, in early daylight on Monday morning, at a location 14 nautical miles off Christmas Island. It had responded to a distress phone call made 13 hours beforehand from the boat to the Australian Maritime Safety Authority. It had monitored the boat by technical means through the night.

The distress call had reported the boat was lost. But it had engine power and kept heading in the general direction of Christmas Island. Ocean Protector met the boat in the customary BPC interception zone, between 12 and 24 nautical miles off the island. There was no sign of damage to the boat and it was moving under its own power, so the event was handled as a standard border violation interception rather than as a rescue at sea.

Ocean Protector sent boarding parties in two or more tenders (small operational boats) towards the asylum seeker boat. Somebody on the asylum seeker boat apparently switched off the engines, assuming the Australians wanted it to stop so they could board it. It is not clear if it was ordered to stop. The boat started to rock in the swell.

During a lengthy media conference on Monday afternoon, BPC commanding officer Rear Admiral David Johnston described the state of the sea at that time as 'sea state three', which implies 'around 15 knots worth of wind and swell height that could be around about a metre' but also the possibility of larger waves, which 'appeared to have occurred in this circumstance'; he suggested the waves may have been up to two and a half metres.

Customs and Border Protection Minister Jason Clare added that 'when a vessel stops motoring along its stability is significantly reduced', and that when this particular vessel stopped for the boarding party to board and 'was hit by two waves' the vessel 'took on water and a number of people entered the water'.

We are told that within two minutes after the first two members of the boarding party (Customs officers, it seems) boarded the boat, it was either swamped or capsised by two large waves. A number of people — by some media reports, everybody on board — finished up in the water.

We are told that all were rescued save for two whose bodies were recovered — a boy aged four or five and a woman in her 30s. Two of the persons recovered were critically injured, including another boy aged six or seven and a pregnant woman in her 20s.

So, only two deaths and nearly all on board saved — surely this is too small an incident to warrant the cost and effort of a coronial inquest.

Not so. The details of the event as so far publicly known suggest seriously life-threatening negligent process, on the part of whoever issued the policy directions to halt and board the heavily laden boat in such sea conditions.

A safe alternative was readily available. The asylum seeker boat could have been ordered by loud-hailer from a safe distance to follow Ocean Protector into calmer waters in the lee of Christmas Island before boarding was carried out. Such a journey by the boat under its own power would have taken three or four hours, quite safely. The boat was simply lost — its engines were still working.

No one would have died if this unnecessary, and on the face if it unprofessional, halt and boarding had not taken place. No amount of blaming the asylum seekers for poor seamanship can get around that fact.

Even for those to whom lives of asylum seekers are of lesser importance than Australian lives, the fact that two Australian officers were already on board the boat when it foundered or capsized reinforces the case for a coronial investigation of the circumstances.

There is also the matter of precedent. In every case of deaths on an asylum seeker boat that has entered Australian waters or come under BPC control, there have been coronial inquests. There is no reason to treat this one differently, especially as the death toll could have been much higher. If 95 people were thrown into the water, many of whom one assumes could not safely swim, the boarding party was lucky to rescue most of them.

The Government might think they can tough or bluff their way through for a few days and the incident will then be forgotten. They may have a few more colourful details, perhaps photos of heroic rescues of children, to drip-feed to the media if pressure for a coronial inquest builds. We've been here before, on Children Overboard in 2001. Australia's responsible media should not be misled. There are serious issues here.

Asylum seekers deserve the same safety-of-life-at-sea procedures as any other boats stopped and boarded at sea by Australian authorities. The temptation to offer a second-class rescue response to asylum seekers 'because they came in unseaworthy boats' or 'should not have tried to come at all' must be resisted, if we are to remain a civilised country with a civilised government that observes international maritime law. 

Tony KevinTony Kevin's most recent book is Reluctant RescuersHis previous publication on refugee boat tragedy, A Certain Maritime Incident, was the recipient of a NSW Premier's literary award in 2005.

Topic tags: Tony Kevin, asylum seekers, boat people, capsized, Christmas Island, Pacific Solution



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Existing comments

We ceased to be a decent country about 1 day after the arrival of the first fleet and have gone down hill ever since. Gillard can cry crocodile tears but last week she was prepared to send home 125 Hazara who would have died.

Marilyn | 28 March 2013  

How can we as Australians continue to act in such an inhumane manner? Both major parties are lowering us to a level of concern for others that no thinking person can endorse. We will end up treating each other as the Nazis treated different races and groups of people, and we as humans condemned them and their actions. Surely we can act to change this.

Carmel Sheehan | 28 March 2013  

Indeed, Mr Kevin. One might hope that an inquest would show the need for very clear and strict guidelines and better training of Customs & Border Protection personnel, rather than a careless disregard for the vulnerable.

Patricia R | 28 March 2013  

Thank you Tony. Why is there not more outrage?

Toluana | 28 March 2013  

I'm exasperated. I have just listened to Shadow Minister for Immigration Scott Morrison on ABC avoid giving specific answers to questions regarding the coalition's policy (?) - of "turning back the boats". I notice the Opposition has moved on from "stopping the boats". A recognition, I suppose, that desperate people will continue to use desperate means to try to get to a country like Australia or New Zealand for political asylum, as long as there is a glimmer of hope that they will escape the persecution they fear in their homeland. I presume both government and opposition have dropped any pretence at "stopping the boats' because they are powerless to change conditions in the refugees' homelands and just as powerless to help the staging countries (like Malaysia and Indonesia) stop boats leaving their shores. Says a lot for the brotherhood of nations! What value are we getting for the money allocated to, Customs, Defence and Foreign Affairs and Trade, if "getting the job done" is reduced to "turning the boats back" or "intercepting the boats" a la Border Protection Command? But, hey!, the footie season's started and there's a long weekend coming up, let the pollies sort it out!

Uncle Pat | 28 March 2013  

Mr Kevin, What a pity that your advice as to how this matter should have been handled by the clearly, in your opinion, untrained and unprofessional interception agencies of this country's government, had not been available before the event. At least you haven't blamed the two members of the boarding party for the unstability that sank the boat and, curiously, Tony Abbott has escaped scot free. Still waiting with bated breath for your advice as to how this terrible problem should be solved to be adopted by governments both here and in Indonesia.

john frawley | 28 March 2013  

I agree with you, Carmel S. Perhaps more of us need to join a political party in order to be a constant pain in the wherever from within. I must say, though, I am stumped as to which one I would join. To do so at this point would be like marrying someone with the false belief that one can/will change them.

Patricia R | 28 March 2013  

And your solution is, John Frawley? As someone with a far greater knowledge than either of us put together, Tony Kevin rightly raises an issue that needs to be addressed urgently. Until there is a humane regional solution agreed to by all sides of politics, the least we can expect is that Customs et al are trained to respond appropriately to those whose lives are risk.

Patricia R | 28 March 2013  

Tony, I agree that a coronial inquest should be held into this tragic incident. But to what a low ebb the debate on asylum seekers has sunk! I can clearly remember Tony Abbot saying that all the Prime Minister had to do was to pick up the phone to the President of Nauru. Labor have tragically followed the Opposition in its John Howard policy of harsh, inhumane treatment of asylum seekers left to languish in offshore detention centres. The Opposition are still trying to wedge Labor by stressing one of its few differneces, that of turning back the boats. I note that Tony Abbot didn't even have the courage to talk about this when meeting the Indonesian President! Tony Abbot seems to forget that when one refugee boat was about to be towed back, the boat was set on fire by one of its desperate occupants, resulting in a terrible sitution for both rescuers and rescued. It seems to me that the only political party with any sense of humanity in this vital policy debate is the Australian Greens. I sincerely hope they hold the balance of power in the Senate after the next election, or inhumanity will reign supreme!

Grant Allen | 28 March 2013  

Dear Patricia, Like all commentators, expert or otherwise, I have no idea how this problem should be solved. Clearly, the problem is becoming worse, with increasing human tragedy. I consider John Howard something that this country could well have done without but it is a recorded fact that the problem of "the boats" was minimal during his tenure. The problem is of course not about the boats but about the people. As far as the people are concerned I think that they should be integrated into this society which is something progressive governments have failed to do. I do not consider welfare dependency and ghetto-isation of peoples as integration. I would like to see refugees enter into work programs including job retraining, the children given immediate access to conventional education and families settled in those parts of the Australian community at large where their skills or job training is needed, where they can establish the dignity of independence, rather than being dependent on government payments. I understand from my reading, for example, that over the last ten years, of those refugees settled in Australia some 93% of the employable are still dependent on government payments. That does nothing for anyone, but especially for those hoping to establish a new life for themselves and their families. And crying about it doesn't help either!!

john frawley | 28 March 2013  

John, the problem you claim exists is about refugees who are resettled, not asylum seekers.

Marilyn | 28 March 2013  

No need for an enquiry , Tony knows the answer and has pronounced the sailers guilty , pity he doesn't ever know or make any positive suggestions how to stop the boats . About time Eureka st took him of the list

John crew | 28 March 2013  

Here we go again, it is the fault of Border Protection Command (Australia) for the two deaths. Not the people's smugglers, not the illegal immigrants who chose to pay thousands of dollars so they can enjoy all the benefits that Australia provides.Never mind the poor genuine refugees who are waiting to be accepted. For every illegal immigrant coming by boat, a genuine refugee has to wait longer in proper refugee camps. Is it fair?

-Ron Cini | 28 March 2013  

John Crew, Tony has not 'pronounced the sailers (sic) guilty'. rather he has questioned the policy that requires the boarding of a sea-worthy vessel. And in any case, why should there not be a coroner's inquest? If the people lost had been Australian citizens would your view be unaltered? So long as there is no alternative available to asylum-seekers, the boats will never be stopped despite what Abbott and Morrison say. If asylum-seekers could obtain visas to enter this country, they would have no need to resort to using boats. May I suggest that you listen to this week's edition of the Law Report on ABC RN about the Hazara people in Indonesian legal limbo. You will find it at http://www.abc.net.au/radionational/programs/lawreport/

Ginger Meggs | 28 March 2013  

Ron, the boat swamped after our people boarded it illegally in international waters. Why is that the fault of the crew members or some person in Pakistan or Iran and why does paying for transport mean one is exempt from care? Everyone has to pay.

Marilyn | 29 March 2013  

Yes, Tony Kevin, and I am sure that the people smugglers put the asylum seekers to sea with all necessary safety gear. These conscientious service providers would have included a full safety briefing for their clients. The people smugglers must be so disappointed and appalled that we nasty, imcompetent Australians care so little for their valued clients. What a shame that we who receive these people do not treat them with similar care and concern as those who send them on their way!

MJ | 30 March 2013  

I am pleased to announce some good news on this thread. Very quietly, last Wednesdsy 27 March (two days after the tragedy, the head of the Dept of Customs and Border Protection Michael Pezzullo put out a media release on the departmental website. It received almost no media coverage - I came across a report on it accidentally on Friday, on http://hazaraasylumseekers.wordpress.com/2013/03/28/another-asylum-seeker-boat-brings-total-to-almost-600-people Here is the title and URL of the media release: http://www.customs.gov.au/site/130327mediarelease_SARupdate.asp Search and rescue incident off Christmas Island – final update - 27 March 2013 There is a stated commitment here to an internal departmental inquiry into the circumstances of the deaths, with an undertaking that its findings will be made available to any subsequent external coronial inquest. I regard this as progress. I believe a coronial inquest is definitely justified if we are serious as a nation about operational safety-of-life-at-sea accountability in our border protection system. Border Protection Command should have nothing to fear from such a coronial inquiry if all orders were made correctly and in accordance with normal safety-of-life-at-sea precautions. And if not, it will be healthy to get this knowledge out in the open to learn from any failures. Every human life lost in our care at sea matters.

tony kevin | 01 April 2013  

John Howard stopped the boats. Fact. Kevin Rudd manifestly started them up again, and the deaths at sea resumed. Under Julia Gillard this has escalated. Fact. Before we consider any solution to the present crisis, can we all admit this?

HH | 01 April 2013  

Tony Kevin, you wrote “Every human life lost in our care at sea matters.” Do the lives of those lost at sea who are not in our care not matter? If I am wrong then excuse me, but in all the time that I have been reading Eureka Street I do not recall one article from you where you have taken aim at the people-smugglers. Whatever the case is there, I think that I am safe to say that the preponderance of your wrath comes down on the Australian authorities. It seems to me that your real agenda is not the safety of human lives at sea. Your real agenda is to cast the Australian authorities in as bad a light as possible. If you really cared about the lives of people at see you would be scathing of the people-smugglers. These evil, money-grasping men cram desperate souls into boats that are barely seaworthy. Yet you give them a free pass. You are like a person that accuses the CFA of being incompetent or uncaring in the way that they fight forest fires, but you will not say one thing against the arsonists that set the forests ablaze to start with.

John Ryan | 01 April 2013  

To HH 'John Howard stopped the boats... Kevin Rudd manifestly started them up again' Fact? At best you're demonstrated correlation, not causality. Were Howard and Rudd (and now Gillard) the only possible causal factors? And what's with 'the present crisis' (whatever that means)? Let's focus on the ongoing unresolved causal factors and a comprehensive resolution of them.

Ginger Meggs | 02 April 2013  

Ron Cini asks 'For every illegal immigrant coming by boat, a genuine refugee has to wait longer in proper refugee camps. Is it fair?' Why Ron? Why can't we take both? And perhaps you'd like to tell us what a 'proper' refugee camp is like, and where there are any such 'proper' camps in our region?

Ginger Meggs | 02 April 2013  

GM, let's hear from someone who might know a thing or two about boat people movements: "SAYED Abbas, allegedly one of the most prolific people-smugglers operating out of Indonesia in the past five years, says John Howard knew how to stop the trade but Kevin Rudd re-opened the gates."The Australian government can stop (the boats) like before when John Howard was there," Abbas said. "If they were more serious, they could stop. It's very easy."

HH | 02 April 2013  

HH, yes, I suppose you could scuttle all the boats, (or just get them to heave to in rough seas and say what a pity), or you could shoot every tenth 'illegal', just as the the Nazis did, or you could shoot them all as they were climbing the wall, just as the East Germans did, or you could burn the heretics at the stake, just as the Church did, but unless you can remove the root cause of the problem or provide an acceptable safe alternative, you will not achieve your objective. As for your source, he's hardly a disinterested and objective observer. Even the good Christian Morrison can't explain how he will achieve his objective - he simply asserts that he will. The simplest way to dissuade people from coming on boats is to issue visitor visas on a non-discriminatory basis; then they would come by air.

Ginger Meggs | 02 April 2013  

GM, if the objective is to control our borders, you don't need to kill people, as you offensively suggest I'm advocating. The Howard solution, which involved no shooting or scuttling, worked - as attested by Sayed Abbas above, who, as a people smuggler, has no interest in supporting John Howard. Quite the contrary. Causation, not mere correlation is thus proven - unless we are to believe you, GM, over someone with inside knowledge. Fewer people died at sea under Howard's solution than under the Rudd/Gillard debacle. So it's Gillard, Rudd, and Greens such as Sarah Hanson-Young you should be accusing of murder, not Howard/Abbott. I agree that a more "simple" solution is to just open up the borders willy-nilly to anyone wanting to come to live in Australia. And maybe offer to pay for the flight. But given the millions or even billions of people who would - very rationally - jump at this opportunity to emigrate to a country based on Christianity and the rule of law, and a generous free kick for immigrants for the sake of a better life, do you seriously think that is prudential?

HH | 02 April 2013  

I can't resist a polite reply to John Ryan's question. Yes, I have not spent a lot of time bagging people smugglers: though I did bag Abu Quassey ( does anyone remember him now?) in my first book on SIEV X; and I tried hard but to no avail to have him extradited to Australia in 2002. Now, for me, it is more about the ethics of propinquity and accountability: I am not responsible for what people smugglers do - but I am responsible for what Australia's border protection system does in my name (and John Ryan's) as citizens. Secondly, though, I would recommend to John Ryan and others interested a reading of Robin de Crespigny's excellent book 'The People Smuggler', highly commended in the Walkley Awards this year. I learned a lot more about people smuggling from reading it. But of course, it's good politics to bag people smugglers. Our Foreign Minister is expending a lot of words in Bali now doing just that.

tony kevin | 02 April 2013  

There are no people smugglers, there are simply crew who sail the boat here. Without a crew all the refugees would be dead. Why blame the victims, we owe them a duty of care in spite of the incessant whining.

Marilyn | 02 April 2013  

Ah, HH, so the principal objective is to 'control our borders'? The only 'prudential' thing to do? One of the 10 commandments of your tribal god perhaps? Or one of the two commandments of his son? 'A new commandment, I give to you, that you should protect your borders - at all costs'? And perhaps it would have been 'prudential' for the Samaritan to have 'walked past on the other side' too? And when your Christ asks you why you locked your borders to Him, and you ask when did you did that, and He says 'when you locked them to these the least of my children you locked them to me', what will your rejoinder be?

Ginger Meggs | 03 April 2013  

GM, how about answering a question with a substantive answer instead of verballing your interlocutor? I repeat - are you after completely open borders or not? If so, how do we avoid the "Camp of the Saints" scenario?

HH | 03 April 2013  

Tony Kevin, thanks for replying to my post. I have no argument with you that we should not fear reviewing all aspects of how we do things, whether it be our treatment of asylum-seekers or how we conduct rescues at sea. Yet I still contend that your admitted preference to ‘bag’ the Australian authorities over people-smugglers is unbalanced in the extreme. The people-smugglers are directly responsible for putting asylum seekers’ lives at risk and profiting from it. We are spending billions of dollars trying to save them. Terms such as ‘ethics of propinquity and accountability’ strike me as being pure sophistry. Ethics is the study of what is good and what is bad in how humans treat their fellow humans. There is no comparison between the people-smugglers and the Australian authorities. They are opposite ends of the moral spectrum. Evil should be called evil whether it is done near or far from us, whether we are (supposedly) responsible for those that do it, whether it is done in our name or not. Perhaps people are not ‘bagging’ these traders in human misery to look good politically so much as to condemn them for their manifest inhumanity and to put an end to it.

John Ryan | 04 April 2013  

John Ryan, there are no people smugglers doing anything, that is purely an Australian fantasy. Refugees with guns at their backs pay for any transport they can, that is their absolute legal right and it is our absolute responsibility to rescue anyone in strife. It is not our right to interfere in laws and behaviour in any other country.

Marilyn | 04 April 2013  

Marilyn, did you not see the Four Corners program on the Captain or Send Them Back to Where They Came From? I do not dispute that there are genuine refugees. I reject out of hand your suggestion that there are no people-smugglers profiting from it. You say that we have no right to interfere in the behaviour or laws of any other country. It is impossible to take this statement seriously. It is an extreme form of cultural relativism. It would mean the bulk of Eureka Sreet's articles would never be published. But if you mean what you say, I will keep an eye out for you to repost it when there is next an article criticising American foreign policy, the Israeli treatment of the Palestinians, Saudi Arabia's treatment of women etc. Taking your argument to its logical conclusion, we have no right to criticise even the countries from which the refugees flee.

John Ryan | 05 April 2013  

Marilyn, I hear that they shoot Hazaras in Afghanistan and Pakistan. I just draw this to your attention. Seeing as we have no right to interfere in any other country's behaviour or laws, we will just have to leave it at that.

MJ | 05 April 2013  

One person is pursued by a journalist and suddenly he is the poster boy for the supposed people smugglers. Captain Emad did not smuggle anyone anywhere, he saved his family from Iraq's sectarian violence and that is perfectly legal. Fergusons' source had his refugee status cancelled by the UNHCR due to facts backing up war crimes committed by him in Iraq when he worked for Saddam Hussein. The other person she claimed was a smuggler was actually a man Australia jailed for 4 years for interpreting in Indonesia and then illegally trafficked with his family first to Vietnam on false papers and then they dumped him in Iraq at the height of the US led invasion.

Marilyn | 06 April 2013  

HH, I was not suggesting open borders (although I have yet to understand why goods, capital and information is allowed to move more or less freely while people are not) nor have I argued that persons who are judged not to require protection should not be deported after due process. My point was more nuanced. The reason why some asylum-seekers resort to boats is that some of those who will eventually seek asylum after arrival are granted visitor visas before arrival and others are denied them. Those who are denied visitor visas are, in my opinion, denied at best on the basis of risk (the risk that they might seek asylum), at worst on the basis of nationality, culture and/or race. In my opinion, this racial/cultural issue is ingrained in the way we as a nation and as a people differentiate between those who come by plane (mostly white) and those who come by boat (mostly not white). The effect is that some people (mostly 'people like us') are given the opportunity to file a claim for protection in Australia and others (mostly 'the other') are denied that opportunity. Your reference to the Camp of Saints scenario is beside the point. Mass population movement has always had its consequences - just ask the the native peoples of the Americas, Africa, Australasia and Oceania, not to mention the sub-continent and South East Asia - but we are not talking about, nor am I advocating, nor does the flow of asylum-seekers and refugees represent, mass migration. In any case, I think we need to see 'Le Camp des Saints', which was written in the early 1970's if I remember correctly, in the light of the French experience in its war in Algeria with all its bitterness and division between left and right and between Frenchmen in France and Frenchmen in north Africa. And you, I am sure, will be well aware of the very mixed reaction which the book received.

Ginger Meggs | 06 April 2013  

Marilyn, if Captain Emad had done nothing illegal, then why did he take off like a scalded cat after the Four Corners crew found him?

John Ryan | 07 April 2013  

Why did the AFP let him travel if he had done something wrong? Honest to god, what does it take to understand that giving refugees a ride is not people smuggling.

Marilyn | 08 April 2013  

GM, my point was more nuanced, too, than your caricature of it as a advocacy of shooting people, scuttling boats and controlling our borders "at all costs". And you're certainly quick to allege racism. But who is racially discriminating between plane arrivals and boat arrivals? No-one is out there saying "X can come by plane, by Y must come by boat". Rather people have reasoned, quite correctly, that instead of joining a queue and waiting to have an asylum visa granted, and flying into Australia on that basis in the Howard years, under Rudd/Gillard you can jump the queue by paying a fee, hopping on a boat, destroying your ID, and having a fabricated story of persecution ready when you arrive at Christmas Island. And I don't see your point about it not being "mass" migration. Even at the current levels, and with our fabulously generous welfare system, it's a massive hit on the taxpayer to the tune of billions of dollars. As a paleo-libertarian, I have no objection to open borders in a minimal state where individuals or private charities voluntarily undertake to bring in unfortunates from overseas and look after them themselves. In our current huge welfare state, communities, rich and poor, are being landed with thousands of impoverished immigrants, and then forced as taxpayers to fork out for them indefinitely, with no consultation or consensus. It's a recipe for disaster on so many levels.

HH | 08 April 2013  

Marilyn, if you think of the people that supply the boats as simply service-providers, then we are at an impasse. I see them as about the lowest of the low. They have minimal concern for the safety of the asylum-seekers. They are only concerned with wringing what money they can from desperate people. To our dear friend the Captain. The standard of proof required for a person to be charged is very different from allegations and questions that an investigative journalist can bring. I still find it interesting that the Captain did not stick around. If he had done nothing wrong, what did he have to fear.

John Ryan | 10 April 2013  

With record speed, the Customs Dept today announced it had completed its internal inquiry into this fatal event three weeks ago. And that its report will not be made public ! We are told that certain changes in operational procedures have been made but these cannot be revealed to us. We are assured that the loss of lives had nothing to do with the need for these changes. What a disgraceful and unconvincing statement. Is anybody following this? http://www.customs.gov.au/site/130417mediarelease-assessment-of-SAR-incident-off-CI.asp

tony kevin | 17 April 2013  

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