By Avan Stallard.
Following is a presentation of the maritime affair that has come to be known as the child overboard incident. It is a construction of the incident formed from the many documents that were submitted and produced by the Senate Inquiry Into A Certain Maritime Incident.
Mid-afternoon 6 October 2001, the intelligence from a P3-C Orion aircraft that had detected an illegal vessel (SIEV 04) approaching Christmas Island was passed to the Darwin HQ of the Joint Task Force. Brigadier Silverstone assessed the information and dispatched Commander Banks of HMAS Adelaide to intercept the vessel. The Adelaide sprinted to the reported co-ordinates, approximately 100nm off Christmas Island, to intercept the Indonesian boat.
The flag the Indonesian vessel had sported when the P3-C had made its fly-over was now stowed away, for this was not a vessel wishing to advertise its Indonesian sovereignty. The sovereignty that mattered for this vessel’s cargo was Australian: it was a matter of life and death to the asylum seekers onboard that they reach Australian sovereign waters, which was why they were steering towards Christmas Island. The Laws of the Sea and rules of international comity were no matter to be concerned with. This was a humanitarian exchange and so the only flag this clapped-out old fishing boat would hoist was the international signal for distress: the white flag.
Travelling south at 8 knots, the vessel is 25 metres in length, long liner style, with no visible name or port of registry. The boat is blue at the waterline with a dark reddish brown freeboard and a faded light blue gunwale. The coachhouse is black with a grey roof. It has a single mast with a forward aerial, and around 50 people visible on deck. At an early stage it is observed that all of the visible asylum seekers are wearing bright red lifejackets. This strikes Commander Banks and the Commander of the Joint Task Force (CJTF) Silverstone as unusual because other intercepted asylum seekers had not taken such precautions. Combining and extrapolating this information, it is concluded that it may be the intention of the PIIs (potential illegal immigrants) to, if refused entry to Australian waters, scuttle their boat. Yet despite this grave prediction this information and conclusion (which does seem quite prescient in light of the following events) is not taken into consideration to avert a safety of life at sea situation. Even though the official government rhetoriticians would reply that Australians will not act under duress, it is nevertheless irresponsible of the CJTF (acting on government policy) to have refused to address the situation for what it was – an imminent and predicted solas situation – until an emergency rescue was the only remaining option. The problem with calling the bluff of asylum seekers is that they are desperate. To risk death in Australia is to avoid risking death in their homeland.
Nevertheless, the man at the helm of the Adelaide, Commander Banks, decides to track the vessel at a distance of 10-12 nm which allowed radar and visual contact; at such a range the SUNCs (Suspected Unlawful Non-Citizens) were unable to sight the Adelaide. Later, and under darkness, the Adelaide closes to 3 to 4 nm. A first long range RHIB is despatched to issue a verbal Department of Immigration and Multicultural Affairs scripted warning telling the SUNCs to return to their port of sail. Nevertheless, the vessel continues on a steady course into the Australian contiguous zone. Later that night the Adelaide inserts a RHIB team to intercept the vessel and dispatch an amended DIMA warning to the SUNCs. This is done by tossing a water bottle, with the warning taped to it, onto SIEV 4’s deck. The asylum seekers look at the warning, then throw it overboard. The RHIB crew assess the SUNCs to be in good health and not overtly agitated or distressed. The vessel is judged to be in seaworthy condition, and, despite the bow of the vessel being quite low in the water (typical of such a vessel overloaded with human cargo) it is decided there is no in extremis (in desperate circumstances) or SOLAS (safety of life at sea) situation. The Adelaide continues tracking the vessel south, and by midnight they are around 60 nm North of Christmas Island.
A further three DIMA warnings are issued to the vessel, using loud speakers and broadcasting in English and Bahasa. Warning four is repeated verbally in Arabic by an interpreter. In the early hours of Sunday 7 October crews dispatched in RHIBS attempt to undertake a compliant boarding of the SIEV but all attempts are unsuccessful. A fifth warning is passed, again in English and Bahasa. The boarding party advise that the warning may not be audible from the portside, so the warning is repeated in the same format from starboard side. The SUNCs continue to ignore the directions to heave to and desist from their present course and so, still in the darkness of the morning, escalate the warnings by illuminating their bridge gunner as the first level show of force. The vessel refuses to abate, and consequently the Adelaide fires four 5.56mm warning shots 50feet in front of the vessel at an illuminated area of sea water. There is no response to indicate the asylum seekers heed the warnings, and nor was there when verbal warning five was again issued. Shortly after, a burst of warning fire from a 5.56mm is spent at an illuminated area 50 feet ahead of the vessel. There is no response, and the SIEV does not stop when ordered to do so. DIMA warning 5 is issued again. A target area is illuminated 75 feet ahead of the vessel and another burst of 5.56mm fire is spent. Over the loudspeaker an interpreter then ordered the vessel to stop to facilitate a boarding. The interpreter subsequently broadcasts a message stating that if the vessel does not stop then .50 calibre machine gun rounds will be spent in the boat’s path. There is no response, so 3 rounds of .50 calibre machine gun are fired at an illuminated area in front of SIEV 4. There is still no response, and further exhortations to stop engines are ignored. A twenty round burst of .50 calibre rounds is fired at an illuminated area ahead of the vessel. At this stage the SIEV began “manoeuvring aggressively and attempting to come along side Adelaide.” The Adelaide manoeuvres to keep distance of 100-200 feet from the vessel.
Having exhausted their other options, Commander Banks of the Adelaide now feels he has no choice, if to effect his orders, other than to perform a non-compliant boarding and take over the vessel. A final warning is issued, and the asylum seekers are told that if they do not allow the boarding party to board then the Adelaide will not let them enter Australian waters.
That morning the Adelaide effects a non-compliant boarding, with SIEV 4 just inside Christmas Island territorial waters. The boarding party takes control of the vessel with the intention of delivering an illegal immigration warning and putting the vessel on a course for Indonesia. The boarding officer reported that some refugees were threatening to jump overboard, to commit suicide, and making aggressive gestures with timber that had been torn from the vessel. Banks ordered the boarding party to contain the disquiet and authorised the use of force.
A while later that morning, the Adelaide becomes aware of a man overboard situation as a male SUNC jumps from the SIEV. A few seconds later a second man leaps from the upperdeck starboard side into the ocean. He is presently followed by a third man. Pursuant to orders, the SUNCs are promptly recovered by the RHIB and returned to the SIEV. Moments later two more men jump into the ocean, seconds later another man jumped from the upperdeck starboard side, followed closely by a second man from the upperdeck, then about 10 seconds later another man jumped from the forward deck. A man removes his shoes and takes a running leap into the water from the upperdeck starboard side. The RHIB promptly returns all men to the SIEV. A short time goes by before another man goes overboard. Minutes later a commotion breaks out on the starboard side with some men breaking off the superstructure off the vessel and jettisoning it. A man then jumps into the ocean from the starboard side of the forward deck.
Shortly thereafter a male asylum seeker retrieves his young daughter from the wheelhouse and places a lifejacket on her. It seems that the father then takes a few moments to explain to his daughter that she is going to have to jump overboard, either into the sea or the RHIB. The child is visibly distressed by this and becomes intensely upset. Consequently, as the girl herself is unwilling to abandon ship, her father holds her over the side of the vessel and makes certain gestures to the RHIB crew below. The child is in hysterics. It is uncertain whether the man is indicating that he is going to throw the child overboard, or whether he wants to drop his child down to the RHIB crew. The evidence strongly supports the latter. At any rate, the man is remonstrated with by both the boarding party and two other asylum seekers who joined him at the upperdeck guardrail. Subsequently the man and child retreat from the side and go inboard. Two members of the boarding party then moved in between the man with his daughter and the guardrail. The situation was diffused. At no stage is this, or any other child, ejected from the vessel. Before sinking, the only child to enter the water is a 12-13 year old Iraqi boy who jumped in of his own accord.
Within 15 minutes from this happening the steering on the SIEV is found to be disabled -steering rods bent and chains detached – but the boarding party sets about promptly repairing it. However, a few hours later it is clear that the vessel is dead in the water from engine failure, the engine presumed to have either overheated or have been sabotaged. At this early stage the vessel is already deemed to be only marginally seaworthy. A little while later a final man jumps overboard, to be retrieved by a RHIB. A few hours go by, by which time make-shift repairs have been made to the engine and the steering is restored with a rope jury rig. The vessel is again put underway towards the outer limits of the Australian contiguous zone. At this destination the boarding parties disembark. It is assessed that the boats ability to “navigate north to Indonesia is extremely dubious”, but despite this the Adelaide gives the crew a handheld orienteering compass and shows and directs those believed to be crewmembers to steer north for Indonesia. The vessel at this stage is again assessed to be “marginally seaworthy”.
The Adelaide again retreats to a distance for continuing observation around 5nm afar. They return to the SIEV early that afternoon in response to the vessel’s indication that they are in distress. A RHIB crew board the vessel and inspect the engine, finding water in the fuel, damage to the starter motor, and the diesel rocker cover removed. The boarding party make the judgment that the boat has been intentionally sabotaged. That night the SIEV is taken under tow, seemingly headed towards Christmas Island. In reality, no decision had been made as to whether the asylum seekers would ultimately disembark on Christmas Island. The appearance of heading towards Christmas Island was tactical, allowing time for CJTF to give orders to the Adelaide for disembarkation, as well as placating the SUNCs’ fierce desire to reach Australian territorial land (it seemed they were travelling to CI). Commander Banks himself noted how effective this ploy was, as the asylum seekers were calmed and a mood of “bonhomie” spread over the SUNCs. In reality the Adelaide is only travelling at a meagre rate, with a maximum speed of 4 knots, and they hold the intention of remaining “well clear” of Christmas Island. When in the CI contiguous zone the Adelaideanchored, maintaining their “situational position” and awaiting further orders.
By the morning of the 8th the SIEV is taking on water due to the bilge pump’s cessation as the generator that powered them is down, but it is assessed to be at a slow rate of ingress. Mid-morning there is 30cm of water in the engine room and 10cm in the hold. Equipment is transferred to the vessel to reduce the bilge, but the equipment is unserviceable, as is a second pump. The depth of inundation continues to increase throughout the day. By the early afternoon the Adelaide has seen fit to rig a Peri-Jet Eductor from the flight deck of the Adelaide to SIEV 4. This seems to have some reducing affect on the water ingressed. At this stage Commander Banks changes his seaworthy assessment; now the vessel is seaworthy only with the Adelaide’s assistance.
The depth of inundation continues to fluctuate, with the bilge level reaching 1.2m before a bilge pump is refuelled and it is thought that the level reduced to .9m. However, some compartments continue to flood, and it is soon obvious that the bilge pumping is at a slower rate than the ingress of water. The passengers become uneasy at the level of water within the vessel, and with the meagre clearance between the sea and the side of the deck. The asylum seekers transfer all children to the upper decks, and the Adelaide supplies lifejackets to those without. Soon after, the boarding party reports the vessel as sinking. Despite this, and purportedly to get “genuine information from somebody who was not excited by the event”, further crew disembark from the Adelaide to the SIEV to make a further assessment. It is verified that the water ingress has increased and three compartments have 2.5 metres of water. Commander Banks believes this to be the result of sabotage, indicated by the sudden increase in ingress. It is determined that the vessel is foundering and that a mass embarkation needs to be prepared for. Subsequently the Adelaide begins preparing for a possible mass embarkation.
It is not until 5 oclock that afternoon, when the bow of the boat goes under water and the SUNCs start abandoning ship, that Commander Banks finally declares emergency stations and a safety of life at sea situation. And only then does he order the launch of life rafts. The rescue goes relatively smoothly, with no loss of life or significant injury sustained to any of the 223 asylum seekers, who are all embarked safely upon the Adelaide that night.
That is where the life of SIEV 4 ends, but it is certainly not the end of the asylum seekers’ story. Indeed, one of the most remarkable parts of this episode is how the story changes from its moment of occurrence before the Adelaide crewmembers’ eyes, and the moments presently thereafter when the story enters first the military, then the governmental, then the public story-tellers’ domain.
 Referencing in this article has been, for the most part, omitted. It is, therefore, ill-advised to reference this article in any further works. All the information presented herein can be found in its original (though rather voluminous) form as evidence submitted and minutes taken for the Senate Inquiry Into A Certain Maritime Incident.
 The reason for illuminating the target was to ensure the asylum seekers knew the Adelaide was not firing upon the vessel or that they were in any danger of livefire. As Commander Banks stated to the Senate Inquiry, “This ad hoc process was introduced by me to clearly show my intent.” However, due to the massive overloading of the small 25 metre boat, it is unlikely that all the asylum seekers were aware that the fire was at a target in the boat’s path, not across the bow. Hearing the retort of a big turbine such as the .50 calibre machine gun could understandably intimidate refugees.
 Enclosure 2 to Powell, HMAS Adelaide/SIEV 04 sitrep 3.
 This statement was untruthful. It impliedly asserted that the Adelaide intended to allow these asylum seekers to enter Australian waters. However, at no stage until the vessel was assessed to be unseaworthy did the Adelaide intend allowing SIEV 4 into Australian waters. Hence, the asylum seekers were lied to.
 Note that the father taking time to explain what is about to happen is inconsistent with any account that portrays his actions as malicious or without concern for his child. Presumably he wants his daughter to be taken to safety and for her to gain access to jurisdiction so as to be processed as an asylum seeker.
 This evidence includes pictures, video-footage and numerous witness accounts.
 Enclosure 2, Powell, sitrep 14.
 As Commander Banks informed the Senate Inquiry, no proper maritime navigating equipment was furnished to SIEV 4 because it was assessed that none could be spared. Hence, after a search among the Adelaide’s personnel, an individual’s compass was donated to the cause of navigating back to Indonesia under deteriorating weather and strengthening winds and swell. Note also that before disembarkation the boarding party examined a 21 day old infant, but had no qualms in abandoning the vessel, set for Indonesia, with this child, and all the other people, still onboard.
 Enclosure 2 to Powell, Sitrep 14. Note also that sitrep 14 indicates the Adelaide’s intention to retreat to 5 nm, but ready to assist if a solas situation eventuates. It is indeed questionable as to why the Adelaide would be referring to a potential solas situation if they had no questions about the vessel’s seaworthiness to make it safely back to the Indonesian coast. Indeed, this seems to indicate that, as a consequence of government policy, the Adelaide was to not render assistance until the moment when a solas situation had eventuated, despite reasonable warning that it would occur. As the Manus Island refugees asked in their submission to the Senate Inquiry, why did the Adelaide wait so long before finally disembarking the SIEV passengers, when it was reasonably foreseeable that the ship would founder?, and by taking earlier action a more orderly rescue could have been effected, and the asylum seekers’ possessions and documents could have been salvaged. Lack of proper documentation is, after all, one of the government’s main reasons given for long delays in processing asylum applications. It seems here it is only a consideration after the fact by another agency.
 Enquiry, p. 162.
 Sitrep 17.
 In fact, it seems no further orders were received before SIEV4 went down.
 The supply of life jackets raises the question, Why, if the situation was considered to be getting so serious as to necessitate lifejackets, were the passengers not disembarked before it became a solas situation?
 Commander Banks, Enquiry, p. 185.
 Preliminary investigations showed that there were two other plausible theories as to why the vessel sank. As a starting point it was noted that the vessel was “unsafe for sea and would have failed any mariner safety compliance inspection.” It was also “significantly overcrowded” and this resulted in creating an unnatural momentum of the boat’s movement and instability. A result of this was, effectively, the swamping of the decks which was a major contributing cause to the sinking. Debris and luggage inside the hull may have penetrated the hull, which would explain the sudden increase in ingress. (“Op Relex – SIEV 04 Investigation Response/VZCZC/OP 090130Z Oct 01/HMAS Adelaide to RAYWIAA/CJTF 639.”)