Webdiary - Founded and Inspired by Margo Kingston

G'day. The jury in the trial in Brisbane of an alleged people smuggler involved in the SIEV-X is about to consider its verdict. UPDATE: See Jury retires unable to reach verdict.

I was involved in the SIEV-X story as a reporter for the Sydney Morning Herald and Webdiary when the Senate's children overboard inquiry began examining the Australian government's failure to rescue SIEV-X survivors after a former Ambassador, Tony Kevin, asked some tough questions about the matter. My main contribution was to prove that John Howard's categorical assurance to the Australian people during the 2001 election when 353 people drowned on SIEV-X that the boat sunk in Indonesian waters, outside the zone the Australian navy had under intense surveillance, was not based on any information apart from early media reports. (See Webdiary's SIEV-X archive, Senator John Faulkner's July 2003 speech on the AFP's activities in Indonesia to stop people smuggling and my May 2003 piece SIEVX: Another Howard lie, another official cover-up, marking the first anniversary of Admiral Bonser's explosive evidence to the children overboard inquiry which sparked the Senate investigation into the sinking of SIEV-X.) See here for a chronology of the SIEV-X story.

Here is a personal report on the trial by Sue Hoffman, who attended the trial in Brisbane, followed by an update on the SIEV-X story by Tony Kevin. Tony's book A Certain Maritime Incident: The Sinking of SIEV X (Scribe Publications, 2004), which I launched in Sydney last year, recently won a NSW Premier's literary award.

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Watching the grief

by Sue Hoffman

Having travelled from Perth to attend the people smuggler trial at Brisbane Supreme Court with three Iraqi men who lost family on SIEV-X, I can offer a unique perspective on this chapter of the SIEV-X story.

When Marg Hutton, editor of sievx contacted me to say the trial was due to start in less than four weeks, I knew the men had to be given the opportunity to attend. One told me it was like an explosion went off in him. A few phone calls to ensure I wasn't off on some mad personal crusade and an appeal for financial support went out through the refugee support networks, with a fantastic response. Thanks to everyone who contributed, and to those in Brisbane who were so generous with time, lifts, accommodation, support.

The four of us lived in the same house, with the men doing all the shopping and cooking as acknowledgment of the time I put into making arrangements, taking notes in the courtroom and typing them up in the evening.

The men had all returned to Perth by the middle of week three but I stayed on for the verdict.

It was unbelievably hard, they tell me, to sit for hours listening to detailed accounts of how the asylum seekers were moved across Indonesia by people smugglers and ferried by small boat onto the SIEV-X, for this is the journey their wives and children took in the days and weeks leading up to their deaths.

They showed me photos of their children, and we cried together before going into court in the morning. We lunched in cafes in central Brisbane - more tears as they spoke of their children, their wives, their memories. At home in the evening we'd talk about their lives and loved ones and weep some more. I can’t remember when I last cried so much.

Their presence in the court gave strength to Iraqi survivor-witnesses brought from Finland, New Zealand and interstate to testify. So many years later and still some are unable to hold down jobs, living on pills, haunted by the memories of ‘dead children floating like birds on the water’ and the many unanswered questions surrounding SIEV-X. Two witnesses broke down in the courtroom and were subsequently hospitalised.

Why did the men attend the trial, what did they want out of it? There’s no easy answer – the men’s concerns are more to do with the deaths of their families than the trial of an alleged people smuggler. What they want most will never happen - nothing will bring their families back. One man received final and definitive confirmation that certain family members had died.

But they would like to know who was responsible for the deaths of their families. Go back far enough and it's Saddam. He's the reason they fled Iraq and started the chain of events that culminated in SIEV-X and the deaths of their families.

They made their way to Australia because they'd heard it was a fair country that supported human rights. Two of the Perth men were brutally tortured during the years they spent in Saddam’s jails, only to find themselves locked up in Australian detention centres. Almost a year later, released as refugees, they were given Temporary Protection Visas (TPVs) which don't allow family reunion.

It doesn’t seem to have impacted on the Australian population that these men who arrived here in 1999, were found to be refugees and were released from detention centres to live in the community, have not seen their families for more than five years. Sure, they can leave Australia and return to their country of origin, but for many that would be a death sentence.

Back in 2000 and 2001 (and it's the same now), there were no legitimate means by which wives and children could join their menfolk living on TPVs in Australia. So the women and kids turned to people-smugglers.

This was a predictable outcome of TPV legislation – if there is no legitimate way of families reuniting they will find another. And the only other way was people smugglers. A market for people-smugglers was created as a direct result of Australian government policy.

Prior to the introduction of TPVs, about 10% of asylum seekers who arrived by boat were children. From the time TPVs were introduced, the proportion of kids rose steadily, reaching almost 40% in the case of SIEV-X.

At no time has the Australian government offered any message of sympathy to the survivors and bereaved of this terrible tragedy, although a number of relatives were living in Australia at the time it occurred. Some still are on TPVs after all this time, still unable to reunite with what little family they have left.

It's been an interesting experience attending a trial every day. The Iraqis milling around the courtroom - the witnesses, interpreters and men from Perth - created a very different atmosphere, their presence a reminder that SIEV-X is synonymous with a huge loss of life. Now they've gone, it's become more of an intellectual exercise, far less emotional. But I've continued to attend the court, to take notes and forward them to interested parties around the country.

For the survivors and relatives of SIEV-X, the trial has been painful, confrontational and harrowing, and I can only hope it has helped them in some way move on with their healing and grieving.

The bereaved in Australia on TPVs would of course benefit tremendously if they were finally granted Permanent Protection Visas so they can visit relatives in safe third countries and return to Australia, where they have lived for more than five years.

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SIEV-X: an update for Webdiary readers

by Tony Kevin

The SIEV X story, now running for nearly four years, continues to throw up strange and cruel paradoxes.

For example, an Iraqi man called Khaleed Daoed, who allegedly assisted convicted "accidental" killer of 353 people on SIEV-X, Abu Quassey, now sits in a Brisbane remand centre awaiting the verdict in his Australian trial under charges of people smuggling.

Daoed had been arrested once already, by Indonesian police, soon after SIEV-X sank. But he was released at the instigation of UNHCR, who had at the time when SIEV-X sank already given him refugee status, and were only waiting for a country to accept him. He was then sent, on UNHCR’s recommendation, as a refugee to Sweden, where he began to make a new life as a permanent resident. But in 2003, he was arrested there at the request of the Australian Federal Police, and after several months in a Swedish jail was extradited to Australia to face charges of people smuggling.

The AFP decision to pluck Daoed out of Sweden seems to have been made in early 2003. Perhaps AFP were humiliated into going after Daoed as a result of the vigorous public campaign mounted by Marg Hutton of sievx.com in late 2002 urging them to do something to bring Abu Quassey from Indonesia, where he was held in immigration detention after serving a minor sentence for passport offences, to face an Australian court over the sinking of SIEV-X. They did nothing.

The AFP were embarrassed when, in January 2003, the Indonesian Justice Minister Yusril Mahendra revealed to the SMH that he would have been ready at any time to hand Quassey over to Australia on suspected murder or manslaughter charges, under a discretionary clause in the bilateral extradition treaty. The trouble was that, in the 15 months since SIEV-X sank, the AFP had never asked for this to be done. Mahendra finally lost patience and sent Quassey home to face trial in Egypt, where he was sentenced finally in December 2003 to 5 1/4 years – 5 years for "accidental manslaughter" and 3 months for people smuggling. (See my book. pp 205-209).

According to media reports, AFP secret evidence supplied to the Egyptian prosecutor helped secure those short convictions and sentences. Under double jeopardy, Quassey could never again be tried in Australia on any charge connected with SIEV-X. In less than 4 years he will walk out of Egyptian prison, scot-free.

Meanwhile, Daoed is now here – he has already been in jail for two years – on trial under people smuggling charges. Australian authorities did not charge Daoed for murder or manslaughter in connection with the sinking of SIEV-X, and under the people smuggling charges, large potential areas of survivor evidence that might have tested the history of how SIEV-X sank are simply inadmissible.

When asked by the media in late 2003 whether Daoed should be charged for manslaughter, Justice Minister Ellison avoided the question. He said merely that, if convicted under the people smuggling charges, Daoed could face a sentence of up to 20 years – equivalent in length, he said, to a maximum manslaughter sentence. Daoed’s lawyer Peter Russo protested that those pre-emptive remarks violated his client’s rights. The government response was that Ellison had only restated facts already in the public domain.

Consider this paradox – a person who is not Australian and has never lived previously in Australia, if finally convicted, faces the possibility of up to 20 years jail in Australia - for an alleged crime that did not involve Australians as victims, and was not committed on Australian soil. Apparently under Australia’s people smuggling laws, this can properly happen: there is no problem of extraterritoriality here.

Yet it was apparently not possible legally to extradite Abu Quassey to Australia from Indonesia in 2002-2003. The published advice (on ABC radio) of Australian international law experts Gillian Triggs and Jean-Pierre Fonteyne, which no other lawyer has ever challenged since, was to the effect that no homicide-related charges could be laid against Quassey in Australia because the alleged crime was committed by a non-Australian, the victims were not Australian, and most importantly, the crime did not take place in territory over which Australia had sovereignty. And because people smuggling is not a crime in Indonesia, the Indonesians could not have handed Quassey over to Australia under that charge.

It is curious, is it not, that none of those extra-territoriality problems under Australia’s homicide laws seem to be a legal problem under Australian people smuggling laws? The long arm of the AFP simply reached out to Sweden and reeled Khaleed Daoed in.

Another, related, paradox.: our judicial authorities (the Minister for Justice and the AFP) can pluck a man out of his assumed safe permanent refuge in Sweden, and bring him to Australia to face up to 20 years in prison if convicted on people smuggling charges relating to SIEV-X and another vessel - but our police were apparently unable to do anything to test in an Australian court the guilt of another man who was finally convicted in Egypt of accidentally causing 353 people to die in the sinking of SIEV-X.

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In the past three weeks during Daoed’s trial, the judge has repeatedly reminded witnesses and the jury that what is being tried here are charges of people smuggling as defined under the Australian law; and that the Court can properly have no interest in how or why SIEV-X sank and 353 people were drowned in that terrible tragedy, except insofar as those questions bear on the charge of people smuggling that the Court is trying.

This necessary lack of Court interest in the sinking of SIEV-X has been well understood by legal counsel on both sides of the case from the beginning, but it has proved confusing and distressing to the witnesses and Iraqi bereaved spectators, because it seemed to indicate indifference to what was most important to them about SIEV-X, the question of how and why their loved ones died.

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As to that burning question, as far as Senator Ellison and the AFP are concerned, it is a closed case. Recently, Ellison replied to a Question on Notice in the Senate from Bob Brown that "there is no current investigation or inquiry" being conducted into the sinking of the boat known as SIEV-X, although "one Australian Federal Police member remains involved in preparation for further court proceedings concerning this matter". (Senate Hansard, 10 May 2005 - Question on Notice No 432.)

The key Australian border protection authorities – ADF, AFP, DIMIA, PM and C - still refuse to admit the demonstrable fact (from three separate sources of official data, two Australian and one Indonesian) that SIEV-X sank in the operational area of Australia’s 2001 border protection ADF operation, Operation Relex. Until they do admit this fact, the question of whether Australia had a particular duty of care in this area of high seas – which might override the Triggs and Fonteyne view that the deaths on SIEV-X cannot be examined by any Australian Court because of extraterritoriality – cannot be tested.

I believe that the real reason why Australian authorities so stubbornly refused to concede that SIEV-X sank in the Operation Relex zone, is because they fear the potential legal implications if this sinking location were to be admitted. (See my book, pp 95-101 and 195-200, with particular acknowledgements to Marg Hutton’s www.sievx.com).

Similarly, the AFP position has not shifted since it was stated in the Senate CMI Committee by Commissioner Mick Keelty on 11 July 2002, that he was unable to answer senators’ questions on "what information the AFP held about the departure, seaworthiness and ultimate fate of SIEV X; the manner in which the AFP came into possession of that information; and the specific actions taken by the AFP with that information, including whom we told and when". (Senate CMI Hansard, quoted in my book, page 204)

As Keelty himself then observed, his inability to answer those questions goes to the very heart of his credibility as a witness as well as that of his organisation, but "on the advice provided" to him, he simply could not go further.

Those same public questions about the AFP and SIEV-X, so succinctly summarised by Keelty himself, remain unanswered nearly three years later. We still do not know what connections if any may exist between the AFP’s admitted people smuggling disruption program in Indonesia and its spin-off Indonesian Police and undercover informant linkages, and the sinking of SIEV-X.

All we have had in the public arena so far is a dramatic and lengthy front-page "Inquirer" feature in The Australian by Cameron Stewart, Put out of business on 21 August 2004, being the findings of a special investigation conducted by this newspaper into the AFP disruption program and the sinking of SIEV-X. When read carefully, this piece offers no more than a string of quoted reassurances by unnamed AFP insiders that AFP agents, though they had to "sail close to the wind" and to "dance close to the devil to slay it", did nothing unethical or illegal in their secret war against the people smugglers.

The possible involvement of the AFP in what befell SIEV-X has never been tested in a full powers judicial inquiry, as the Senate has three times in three years demanded by majority-passed motions. In order for the AFP to hold its head high again, this question needs to be tested judicially.

The AFP is also still refusing to reveal the full lists of those who sailed, lived and died on SIEV-X – lists of names that it admits it has access to - because, I believe, to do so would invite embarrassing questions as to how, when and from whom AFP came into possession of such a detailed passenger manifest. (Senate Hansard replies to Questions on Notice, 11 August 2003 – text on pp17-18 of my book).

Even now, Marg Hutton’s painstaking public research has only been able to identify 162 names from the 421 who reportedly (according to the Australian embassy cable sent four days after the boat sank) embarked on SIEV-X. The names of the other 259 passengers and what happened to them still remain publicly unknown – though known to the AFP. Thus, bereaved relatives still cannot get final official confirmation that their missing family members embarked and died on SIEV X. Senators Bartlett and Brown have each spoken passionately, in the Senate and outside it, about this gross abuse of human rights. It remains uncorrected.

Unless and until a whistleblower comes forward from Indonesia or from within the Australian national security system, the Senate’s demands for a judicial enquiry into how SIEV-X sank, and whether and if so in what ways the Australian government’s people smuggling disruption program was involved, can go no further.

With control of the Senate about to pass to the government, it is unlikely that there will be any more such Senate appeals. But no matter – the cock has crowed three times and the government has ignored its calls. That is part of Australia’s recorded SIEV-X history now. There can be no retraction from it.

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Here's another curious paradox in the SIEV-X history. During 2005, six survivors of SIEV-X who had in early 2002 been given entry to Australia on five-year temporary protection visas, were quietly granted permanent residence visas (the seventh, a 14 year old girl left orphaned after the sinking, had meanwhile left Australia). As the Russian proverb says, better late than never.

But why was their permanent residence withheld for three years? Why did these six bereaved people and their families have to live with that additional gnawing anxiety about their futures for so long? In contrast, the 38 other survivors of SIEV-X who went to other countries as refugees were granted permanent residence from the outset.

None of the Australia-resident survivors testified in the Daoed trial. Three had been listed as Crown witnesses and expected to be called, but this did not transpire. Nor did the Daoed defence call any survivor witnesses.

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Consider the huge power now of our Australian national security state over the movements and lives of people who are citizens of or who live in this country. It can grant permanent residence at whim, after three years agonised waiting on TPVs, to survivors of the greatest maritime disaster in our history, in waters where I believe Australia had a demonstrable duty of care.

It can pluck a man out of Sweden to face trial and a possible 20 years of imprisonment, if found guilty of an alleged crime that did not involve Australians.

It can assist in the obtaining of a derisory 5 ¼ year sentence in Egypt of a man convicted of organising a people smuggling voyage that caused the deaths of 353 people, who were not Australians.

It can pull Afghani refugee kids out of a Catholic school in Adelaide, claim falsely they are Pakistanis and not refugees, and expel them in great distress to Pakistan using false documents, from where they sadly made their way back to Afghanistan.

It can keep a girl baby locked up in Villawood Detention Centre from her birth in Australia until she is three, and only release her in response to public putcry.

It can keep other, Vietnamese, babies and mothers similarly in detention for two years in Christmas Island; and more children in Nauru.

It can send rejected Iranian refugee applicants back to Iran to be tortured and killed there.

It can expel one Australian citizen to the Philippines and nearly expel another to Germany, if Germany had taken her.

It can happily leave one Australian citizen, captured in Afghanistan while fighting with the then-Taliban government forces there, to rot in an illegal US military prison where torture is routinely practiced, for four years.

It can reluctantly under US pressure accept back another Australian citizen wrongly imprisoned in Guantanamo Bay after arrest in Pakistan and torture in Egypt, when an American court finally found this man not guilty of any offence, while it continues here to proclaim his probable guilt.

It can fail to investigate the suicide under the open mockery and taunting of guards of a Tongan illegal immigrant at Marybinong Detention Centre, who had lived happily in Australia for 20 years and was only discovered finally as a result of DIMIA’s "dob-in an illegal" program.

It can reject any duty of care to the family in Pakistan of a man who immolated himself outside Parliament House in Canberra, in despair that he could not bring his immediate family to Australia because one of them needed long-term medical care.

It can imprison you or me in secret ASIO interrogation detention for a week, and when we return home we are not allowed to say where we were.

This is a national security system of great power and great whimsicality in how it exercises that power. It is hard to see now where are the limits to the Australian national security state’s power over people.

The survival rule for most people seems to be – keep your head down and try to stay out of trouble. More and more, to live here – as a non-citizen or citizen - reminds me of life in Kafka’s Castle.

SIEV-X was the precursor to all this. The Howard government in 2001-2002 tested the limits of public tolerance, and found there were none. We have only ourselves to blame for not speaking out.

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I do not know whether Khaleed Daoed is guilty as charged or not. In any case it would be illegal for me to express any personal opinion on that until a sentence is passed, if he is found by the jury to be guilty, and all his legal possibilities for appeal exhausted. Nor may I legally comment on evidence that was given or not given in the Court, in respect of the people smuggling charges under which he is being tried.

But I can legally and properly make these observations on the Daoed trial.

The Court in Brisbane is not an extension of the Australian national security state. It is properly independent of government. It is diligently and professionally doing the job it was given to do – to test the Crown’s allegation that Khaleed Daoed is guilty of people smugging charges in respect of SIEV X and another Quassey vessel, Yambuk The judge, jury, legal counsel on both sides, witnesses, and the accused himself, have all performed their proper functions within the well-tried Australian system of judicial process.

Yet I feel a sad sense of displacement in observing this trial. Because the issue of how 353 people died on SIEV-X has to be outside the Court’s purview, the significance of those deaths has been inevitably devalued. Somehow, the whole process seems to be missing the main point of what happened.

I also feel that the way this trial is being conducted offers – not through the fault of anyone involved - another example of how the rights of non-Australians are less significant than the rights of Australians. All the Iraqi-born people involved in this process have been seriously distressed by it. Australians are sitting in judgement over them, telling them what they can and cannot say in terms of whether it is relevant to the people smuggling charge, which inevitably means not testing in court the questions that matter most to them – how and why their loved ones died on SIEV X .

What may matter most to Daoed himself, if he is a man of honour, may be to try to convince the victims that he did not at any stage know that SIEV-X was intended to sink; that he had no idea this disaster might happen. Yet under the charges, neither he nor anyone else can say anything in the Court about that.

In that sense, this whole trial, notwithstanding its undoubted integrity as a judicial process, is an act of extended cruelty to both the survivor witnesses, bereaved observers, and the accused. Every Iraqi who has sat in this courtroom is a victim of a process that, in comparison, is leaving Australians untouched and unscathed.

Imagine for a moment a trial in which the survivors and bereaved victims of Martin Bryant’s killing spree at Port Arthur, Tasmania, had to testify or hear testimony only relating to an illegal possession of weapons charge, and knowing that there was unlikely ever to be any further legal process against Bryant. Imagine their re-ignited grief and pain, their anger and frustration. That is what, I suggest, these Iraqis have been going through in the Brisbane courtroom. It is why most of them could not bear to stay there for the full trial, and why some witnesses broke down in court.

The Brisbane court is in no way to blame for this situation. I believe that Senator Ellison as Minister for Justice, and AFP as the arresting agency, are. For they knew this would happen from the beginning, when they initiated Daoed’s extradition and charging as an alleged people smuggler. It is clear from Ellison’s reply to Louise Yaxley on ABC "AM" on 10 October 2003 (see pp 211-212 of my book) that he and the AFP knew exactly what sort of court process the Crown was setting in train here:

LOUISE YAXLEY: He comes to face people smuggling charges. Some have suggested there should be manslaughter charges over SIEV-. What do you say to that?

CHRIS ELLISON: He's been extradited in relation to people smuggling charges, that's the basis on which we've prepared our brief. I would remind those people who think we should be looking at manslaughter charges, that the maximum penalty for people smuggling charges upon conviction has 20 years imprisonment. Now, that is a substantial period of imprisonment, which would be on par with a manslaughter charge in any event. Now, he's facing 13 charges. I can't pre-empt what a court might do or what might not do in the event of a conviction, but certainly we have very heavy penalties involved in the legislation upon a conviction.

Whatever the final outcome of the Daoed trial in Brisbane, crucial questions about how SIEV- sank will remain unanswered, until such time as there is a full powers independent judicial inquiry into the sinking of SIEV- and the Australian Government's people smuggling disruption program in Indonesia, as has been demanded by the Australian Senate. This inquiry must, sooner or later, be held.

(ends)

References:

Sue Hoffman, private trial observer notes provided to Tony Kevin

Marg Hutton, www.sievx.com – files on Khaleed Daoed

Tony Kevin, "SIEV X people smuggling trial now in its third week" - commentary in New Matilda, Issue No 40, 1 June 2005

Tony Kevin, "A Certain Maritime Incident: the Sinking of SIEV X ", Scribe Books, Melbourne 2004

Acknowledgements:

This piece could not have been written without the advantage of speaking often with Sue Hoffman, who has observed the full duration of the Daoed case. Sue attended the trial as a volunteer observer, and also as an escort for three bereaved Iaqi men – her friends – who are now living in Perth on TPVs. Their trip to Brisbane was funded by the Western Australian Action Alliance and other refugee supporters around Australia. The research of Marg Hutton and the resources of her website www.sievx.com are also gratefully acknowledged.