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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE - 08/02/2010 - ATTORNEY-GENERAL’S PORTFOLIO - Australian Customs and Border Protection Service

Estimates & Committees
Sarah Hanson-Young 2 Aug 2010

Senator Hanson-Young -Thank you, Chair. I have only got a few questions but I think they are important. They are in relation to the cargo ship that is holding 240-odd asylum seekers who boarded in Merak and, specifically, what happened before the Indonesian government intercepted that particular boat. Have we got everybody at the table that we need to answer those questions?

Mr Carmody -Yes.

Senator Hanson-Young -Great. First of all, I wanted to know on the record when the Customs and Border Protection Service was first aware that the boat was heading towards Australian waters.

Mr Carmody -I do not have that detail here and I would have to take it on notice and on advice as to the timing of intelligence and whatever. But what information I can provide I will provide on notice.

Senator Hanson-Young -Okay. I guess we know that the boat has now been held in Indonesian waters for 120-odd days or something like that. Is that your understanding?

Mr Carmody -This vessel was of course intercepted by Indonesian authorities and taken to Indonesia, so it has to be answered in that context, but my understanding is that that interception took place on 11 October 2009.

Senator Hanson-Young -But you cannot tell me at this stage when the Australian authorities were first aware of the boat's existence?

Mr Carmody -I cannot give you that, but we were aware and there was some intelligence sharing with the Indonesian authorities.

Senator Hanson-Young -Okay. How close was it to Australian waters?

Mr Carmody -The information I have is that it was off the west coast of Java, so it was significantly closer to Indonesian territory than Australian.

Senator Hanson-Young -At what stage did the Customs and Border Protection Service informed the Prime Minister's office that this boat was heading towards Australian waters?

Mr Carmody -I do not know that we informed the Prime Minister's office at all directly. This would have been a matter of some discussion amongst the authorities involved, but I do not have any detail about informing the Prime Minister.

Senator Hanson-Young -Is it part of the protocol when a boat is sighted or understood to be heading towards Australian waters that the Prime Minister's office is told at some stage?

Mr Carmody -It is certainly part of the protocol that all government agencies involved in this issue are informed of such events. How far it goes beyond that, I cannot help you with.

Senator Hanson-Young -It has been very widely publicised that it was the Prime Minister who made the call in relation to having the boat intercepted by the Indonesian government prior to its arrival in Australian waters. Are you able to tell us when that decision happened?

Senator Wong -Senator, if your question is in relation to either the Prime Minister or the Prime Minister's department, it should be addressed to the Department of Prime Minister and Cabinet-in a different estimates committee-and/or the Minister representing the Prime Minister.

Senator Hanson-Young -I understand that, Minister, but the people we have in front of us today are the people who are responsible for sighting boats and verifying whether boats are indeed-

Senator Wong -Your question, with respect, Senator, did not go to that issue. Your question went to another issue, and I am simply indicating to you that it is probably not something Mr Carmody can assist you with.

Senator Hanson-Young -What I am hoping Mr Carmody can assist us with is: who did Customs and Border Protection inform that this boat was heading towards Australian waters?

Mr Carmody -Sorry, Senator, it is normal practice, as I have said, for agencies and at times the minister's office to be informed depending on the particular circumstances of the vessel. I have no detail here about the specifics of the communication of this and I would not be party to or understand any discussions with the Prime Minister on this.

Senator Hanson-Young -Is it normal practice to see boats or any other vessels heading towards Australian waters and to share intelligence with the Indonesian government to a point where they intercept the vessel before it reaches Australian waters?

Mr Carmody -To the extent that we have intelligence that would assist in a disruption of a people-smuggling venture or the location of one, Commissioner Negus spoke about the number of disruptions in Indonesia and Malaysia so it is self-evident that we do provide intelligence where we can on information relating to people-smuggling ventures for action by Indonesian, Malaysian or Sri Lankan authorities.

Senator Hanson-Young -When a ship or a boat, an unauthorised vessel, is sighted and it has not reached Australian waters yet, what is the protocol? What happens from there?

Mr Carmody -There are a number of stages in this, Senator. If we have information about a potential organisation of a venture or potential passage of people that may be intending to attempt to make a voyage to Australia then where we can-and I am including in this AFP and other agencies, because we work across government on this-we share that information with the authorities in, for example, Indonesia. It may be the police force in Indonesia or the navy in Indonesia or other organisations. So it is reasonably standard practice where we have information that may assist in the disruption of a venture for us-the collective us-to make it available to authorities in those countries.

Senator Hanson-Young -How long did we know that this boat was heading towards Australian waters before it was intercepted by the Indonesian government?

Mr Carmody -I have already indicated to you that I do not have that information here. When we can we will provide it.

Senator Hanson-Young -Is that something that you are able to find out?

Mr Carmody -If we can, we will provide it on notice for you, Senator.

Senator Hanson-Young -Do you think that it was a matter of days or hours-

Mr Carmody -I cannot speculate; I do not know.

Senator Hanson-Young -What type of information would you have had about the boat before it was intercepted?

Mr Carmody -I do not want to go into things because, first of all, I do not have the detail here and, secondly, in answering your question on notice I will have put a lens across this as to revealing operational or intelligence information.

Senator Hanson-Young -I appreciate that. Would it be normal to have information about the types of people on board the boat?

Mr Carmody -Again, I cannot go into specific intelligence. That varies widely and wildly amongst the sort of intelligence that we get.

Senator Hanson-Young -So where did it not become Border Protection and Customs responsibility for this boat? Where was that point? You are not able to give me the day on which you sighted this boat but surely you are able to tell me at what point you believed, or you were given direction, that it was not your responsibility anymore.

Mr Carmody -It is a bit hard to talk about responsibility. Ultimately Border Protection Command can only intercept vessels on the contiguous zone around Australia, which is about 20 nautical miles around Australian territory. So to that extent it was a long way away from being there. But we do operate with the Australian Federal Police, intelligence agencies and so on, as I mentioned before, to support disruption of ventures that are potentially seeking to come to Australia. In this case, on 11 October the Indonesian authorities intercepted the vessel and took it into Indonesia. It was their interception and their responsibility.

Senator Hanson-Young -Yet we had known that it was heading towards Australian waters before then, and the reports are that it was the Prime Minister who in fact asked for the interception to occur. Was that on the advice of Customs and Border Protection?

Mr Carmody -I have already explained, Senator, that I do not have the information and cannot go into those sorts of operational issues, and I do not have any information about discussions with the Prime Minister.

Senator Hanson-Young -Is that the type of advice that you would be asked to give?

Senator Wong -How is Mr Carmody supposed to answer that?

Senator Hanson-Young -It is about protocol and process. What I am trying to ascertain is whether this was-

Senator Wong -You did not ask about protocol. The question was: is that the type of advice you would be asked to give? With respect, if your question of Mr Carmody is about protocols, you can see whether he can assist you with those, but that was not the question you asked.

Mr Carmody -Senator, I have already attempted to answer your question in the best way I can, and that is to explain that where we have intelligence that we can release to authorities-in Indonesia, for example, or elsewhere-then that is normal practice for us to release that sort of intelligence, the objective being to see whether the venture can be disrupted, whether they are on land and sometimes they are on water.

Senator Hanson-Young -So, as far as you are aware, it was not advice given by Customs and Border Protection that allowed for this boat to be intercepted by the Indonesians?

Mr Carmody -I do not have particular detail of that. These are typically-

Senator Hanson-Young -You guys are in charge of border protection.

Mr Carmody -That is right, and typically these issues, depending on the particular vessel and the particular incident, are handled across government agencies, sometimes with the involvement of the National Security Adviser, and decisions are taken in that context.

Senator Hanson-Young -Who within the border protection and customs authority was responsible at the time for making these decisions in this particular case?

Mr Carmody -I am not sure about this incident but, as I have already indicated, we typically provide information where we believe it can be actioned and is releasable to authorities-in Indonesia, in this example. That is quite a standard operating procedure and it would take nothing exceptional for that sort of information to be released to the Indonesian authorities.

Senator Hanson-Young -So were you surprised, then, at reports that it was the Prime Minister who asked for this interception, if it is just normal course?

Mr Carmody -I do not know my emotions at the time, Senator.

Senator Hanson-Young -From what you are saying, the sharing of intelligence, the partnership, if you will, the work that your agency does working with other authorities, including the Indonesians, seems to work quite well. So why would the Prime Minister need to get involved?

Senator Wong -Senator, you cannot put an assertion as fact in a question to a witness who has already said he cannot comment on it. You have a view. The witness has not commented on that. You have just put in a question to him an assertion that is your view as fact. That is really not fair to him.

Senator Hanson-Young -Mr Carmody, do you believe that the partnerships of the Australian agencies, border protection and customs, and the authorities in Indonesia work well?

Mr Carmody -It is evident from some of the intelligence already given by Commissioner Negus. There have been a range of interceptions over the period for which he gave some figures. We work as best we can with the overseas agencies, particularly, I might say, through the Australian Federal Police and the INP.

Senator Hanson-Young -So it is not normal for the Prime Minister's office to have to be directly involved?

Mr Carmody -As I have said, I cannot comment on involvement of the Prime Minister. I am not able to comment. If there are questions of any involvement, that would be a matter for the Prime Minister's department.

Senator Hanson-Young -In terms of this particular case, have there been any other interceptions in the last 12 months where the interception by Indonesia was not able to be worked out between your department and the Indonesian authorities?

Mr Carmody -As I said, if your question goes the actions of the Prime Minister, I am not aware of the actions of the Prime Minister in a whole range of areas, including in this area. If there are any questions about the involvement of the Prime Minister, I think they are appropriately directed to the Department of the Prime Minister and Cabinet.

Senator Hanson-Young -I appreciate that. I also appreciate the fact that you are responsible for border protection and customs. It is your job to sight the boats; it is your job to advise where they are going and how they will be intercepted. At what point was it necessary for the border protection agency to not be the body that makes the decision as to whether or not this boat is intercepted and instead a decision of the Prime Minister?

Mr Carmody -The question of ultimate interception, as I have said, finally by Border Protection Command can only occur within the contiguous zone of Australia. That is about 20 nautical miles from shore, so we are a long way from that territory in this area. When we are dealing with issues of possible disruptions overseas, this is a whole-of-government activity. At various times a range of government agencies are involved, and there is a Border Protection Task Force, for example, chaired by the National Security Adviser. So, depending on the circumstances, there will be a range of contributions to the decision as to how a particular case might ultimately be handled.

Senator Hanson-Young -In that type of discussion, who would normally be involved?

Senator Wong -Which discussion, Senator?

Senator Hanson-Young -In relation to deciding whether or not a vessel is appropriate to enter Australian waters.

Mr Carmody -The question here is about disruption activity. In that activity there are contributions from a whole range of agencies, depending on the particular case, including from the National Security Adviser through to Australian Federal Police, intelligence agencies and the Department of Foreign Affairs and Trade in particular circumstances. Certainly the Department of Immigration and Citizenship would be involved. This is a whole-of-government activity, as I said. The interception issue is really at the end of the chain if a vessel reaches the contiguous zone.

Senator Hanson-Young -In that list you did not mention Prime Minister and Cabinet.

Mr Carmody -I cannot tell you what particular government agencies are involved or at what point they might or might not discuss it with their respective ministers.

Senator Hanson-Young -Did you have information about the people aboard this boat? I have already asked you generally and you have said it is hard to tell because each case is different. In relation to this boat, before 11 October were you aware of who was on board this boat?

Mr Carmody -Not in detail, and I do not want to go into operational and intelligence matters.

Senator Hanson-Young -Were you aware that there were children on board the boat?

Mr Carmody -I am not aware at this stage of being aware of that. I do need to point out that these go to intelligence and operational issues that I am not comfortable discussing, Senator.

Senator Hanson-Young -Is that type of profile something that would normally be available before a call on whether the boat reaches Australian waters or is disrupted, as you put it?

Mr Carmody -I think that would be fairly rare. I say that on the basis that, when a vessel arrives, one of the first things that happens is there a call of the roll in which we get information about the possible nationality and the sort of people, including their ages, in broad senses. Often that is the first time we have that level of detail-in fact more often than not, I would suggest, if not always.

Senator Hanson-Young -On 11 October, when this boat was intercepted by the Indonesians, were there any Australian officials present?

Mr Carmody -On the water? Again, that goes to operational issues. But, as I said, this vessel was intercepted by Indonesian authorities and taken to Indonesia. It was essentially, from an operational point of view, an Indonesian operation.

Senator Hanson-Young -Do you agree with the statement that it was intercepted by the Indonesians at the request of Australia? Is that a correct statement?

Mr Carmody -The only point I would make is that we provided intelligence that assisted in the interception.

Senator Hanson-Young -So you do not agree with the description that it was at the request of Australia?

Senator Wong -Senator, I think he has answered the question.

Senator Hanson-Young -No, I think it is quite different actually.

Mr Carmody -You are asking for my words, for the way that I would express it, and that is that we provided intelligence to Indonesian authorities. That intelligence is typically provided to assist in the disruption of people-smuggling ventures, and that is what occurred on this occasion.

Senator Hanson-Young -On the understanding that they would disrupt the vessel?

Mr Carmody -We provide them with intelligence for the purpose of assisting the Indonesian authorities, in this case, to disrupt people-smuggling ventures. That is normal practice.

Senator Hanson-Young -I think that is it. Thank you.

CHAIR -All right. Thank you, Senator Hanson-Young.

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