Xmas Island Tragedy Was Foreseeable, Says Coroner

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Against the deafening clamour of the Labor leadership tussle, the report into the largest peacetime loss of human life to occur in Australian waters in 115 years was quietly released last week by the Western Australian Coroner.

The long-awaited report into the Christmas Island shipwreck begins by listing the names of those who died. Unlike others who have disappeared without a trace outside Australia’s territorial waters, this list makes the deaths of these 50 people visible within the law. This is an important step in memorialising the loss of these particular lives. Given the political will, it could also serve to begin an official account of border-related deaths in Australia.

There are three clear themes that emerge in the Coroner’s report.

The first is this important act of memorialising those who died and rejecting Commonwealth attempts to suppress their names. Giving the dead their names in an official account of how they died is a humanising function that to date the Australian government has been reluctant to undertake. Practices of naming and counting are an essential first step in the process of accounting for avoidable deaths.

The Australian government, unlike the United States, however, has not sought to record border-related deaths so that key trends and issues might become identifiable. We still do not have an official record at a national level of who, how and where people have died attempting to cross from Indonesia to Australia. We do not include deaths in immigration detention or deaths that have occurred in the course of immigration enforcement on the Australian mainland as deaths "in custody" for the purpose of the national deaths in custody monitoring undertaken by the Australian Institute of Criminology.

In the US, official counts of deaths in the US-Mexico borderlands have been subject to intensive dispute by NGOs and by the Mexican government, and the claims that the government-sponsored Border Security Initiative has saved lives have been called into question by the US Government Accountability Office. Even so, the production of official data provides a starting point for these debates, and indicates some measure of engagement in state responsibility for border-related deaths.

Second the Coroner noted the exceptional bravery of local residents and Navy and Customs personnel, which resulted in the rescue of 41 of those on board. It should not be underestimated that the human cost of the shipwreck includes the memories of desperate locals throwing life jackets from cliff-tops and Navy and Customs personnel pulling survivors and bodies from tumultuous seas into inflatable boats. But, as the Inquest confirmed, neither of these agencies is designed, trained or adequately equipped to undertake rescue efforts which arise from the extraordinary circumstances of offshore interdiction regimes.

In closing submissions on behalf of the Commonwealth it was contended that "[t]here is no domestic or international expectation or obligation that BPC (Border Protection Command) or other Australian assets will be postured for the purpose of saving SIEVs that may place themselves in dangerous situations." The political imperative to prevent arrivals on the Australian mainland, and the fact that under the excision regime, arrivals on Christmas Island, to quote the BPC Commander "would not be a matter of great concern", ensured that surveillance and interdiction capabilities were directed elsewhere.

This is not an isolated finding. In Europe, the Executive Director of the newly formed Frontex border protection agency, Ilkka Laitinen, issued a statement in June 2007 lamenting that EU Member States "want Frontex to become a search and rescue body", claiming this was "out of the mandate not only of the agency but also the European Union". Incredibly, it seems that interdiction programs driven by a logic of preemptive surveillance have been instigated around the developed world without adequate regard for the safety of those involved and the additional risks they were likely to face.

The final, and arguably most important, theme is that the Coroner found that "the disaster in this case was generally foreseeable and indeed it was foreseeable that those involved in a rescue attempt may have also died".

The Coroner could not accept that Australia could not develop a surveillance capability "which would be more effective than island residents coincidentally looking out to sea". The debacle involving the Department of Regional Australia and the Australian Federal Police is detailed in some length in the report to illustrate the failings of the federal police to effectively deliver the rescue capability they are uniquely charged with providing on Christmas Island because of the interdiction and detention regime. The Coroner found that this was particularly unsatisfactory and unsafe.

Moreover the Coroner found that the AFP over 12 months since the disaster are yet to take necessary steps to liaise with Western Australian Police and others in ensuring appropriate vessels, software and arrangements are in place. As the Coroner said: "It would be regrettable if another boat was to sink in the coastal sea of Christmas Island and survivors or bodies not be located because of failure to make basic inquiries in relation to a software program in use in Western Australia."

It is notable that the Commonwealth contended that evidence regarding the lack of this rescue capability was irrelevant to the Coronial investigation of those who died. The quality of search and rescue was the focus of the Coroner’s recommendations for two key reasons.

First to improve future safety and reduce the number of deaths occurring in similar circumstances; but also to "advance the administration of justice in the sense that if more bodies are located this will enable more extensive findings to be made by a coroner." In a system where there is no independent investigatory office for border related deaths, the role of the state coroner becomes paramount in legally responding to and preventing deaths.

Those who organised the doomed voyage were also found to be seriously at fault for the unseaworthy condition of the boat, for misleading passengers and for providing an inexperienced crew who, tragically, steered the boat towards danger. However, the events that unfolded off Christmas Island in December 2010 raise more fundamental questions about the logic of Australia’s border surveillance regime; whether it is compatible with the safety and protection of those who are subject to it and operate it; and whether the sometimes fatal consequences of border controls are adequately acknowledged, recorded and analysed.

The Coroner noted that prior to the Christmas Island tragedy, "the focus of Border Protection Command was on addressing problems associated with illegal entry into Australian territory and little, if any, consideration was given to the possibility that failure to intercept these vessels could have serious consequences going far beyond border security concerns."

With its latest leadership battle now decided, the Gillard administration faces a renewed challenge — if a Coronial report is to count for anything — of demonstrating that the preservation of human lives can be factored in to policies that have hitherto been driven solely by highly politicised border security concerns.

A list compiled by the authors of known deaths since 2000 related to Australian border controls can be found here.

New Matilda

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