Families of dead Islanders await justice

IT IS now a year and a day since Queensland Coroner Michael Barnes handed down his findings in the case of the sinking of the Malu Sara – a Department of Immigration border protection vessel – with the loss of five lives.

It is four and a half years since the vessel sank.

And nothing much has happened. The families are still awaiting compensation and Queensland authorities are not prosecuting.

The coroner was highly critical of the tender process for the buying of the boat and highly critical of the search and rescue process after the boat signalled it was taking on water.

Five people were lost at sea: two officers of the department and three other passengers, one a five-year-old girl. Only one body was found. Horribly, some, in the words of the coroner, might have been “fatally attacked by marine life”.

When I say “officers of the department” you might have imagined white people in smart uniforms, or even people dressed in suits and ties.

But no, these were Torres Strait Islanders right at the bottom of the food chain of the department – locals employed with local knowledge as Movement Monitoring Officers because no-one else could do the job.

The family of one of the dead did not have legal representation at the initial directions hearing. A friend of the court had to be appointed. The families of the others got legal aid.

It would be unthinkable for the families of two white immigration officers drowned after the sinking of a departmental boat to be treated this way and for so little to happen so long after the event.

The tendering for the purchase of the Malu Sara and its ultimate sinking took place at the height of the Coalition’s border-protection scare campaigns and happened at a time the Coalition’s promotion of small business and cutting through red tape in tendering was still rampant.

In 2003, the Commonwealth began the process of replacing six Bermuda class boats. Instead of buying proven boats off the shelf, small business was to be given a chance to design and build a new type of craft. But there was an obvious risk.

During the tender process the requirement for a floatation test – fill the boat with water and make sure it still floats — was axed. And the wording for “ships” for “inshore and offshore patrol operations in smooth and open waters in the Torres Strait” was changed to “vessels” and changed to omit “offshore” and “open”. So the tender was for inshore vessels on smooth seas, not ships offshore.

Folly. The Torres Strait is treacherous. Wind blows one way and current the other, creating high standing waves.

Worse, the Commonwealth took the cheapest tender. The boats were not up to the task.

In late August 2005, then Immigration Minister Amanda Vanstone proudly announced the launch of the six new Immigration Response Vessels.

“These boats will greatly enhance the operations of DIMIA’s Torres Strait officers who play a vital role maintaining border control,” she said.

Six weeks later, one of the boats disappeared and two of those officers were drowned.

The coroner made 26 damning findings about the acquisition of the boats. He said the departmental officer in charge “had insufficient training and/or experience” which was “compounded by his incompetence and indolence”.

The department was warned about his short-comings.

“There was a gross failure by the boat-builder to comply with general boat-building standards and regulatory requirements,” the coroner found. “The vessels had numerous serious flaws that made them unseaworthy.”

The coroner found short-comings in crew training. And he found that people responsible for search and rescue played down the seriousness of the boat’s plight. The attitude of one “was coloured by his perception that people in the Torres Strait habitually activate their EPIRBs (Emergency Position Indicating Radio Beacon) when they are inconvenienced rather than in peril”. Some authorities had corrupted the acronym to “Empty Petrol I Require Boat”.

The Malu Sara’s predicament was trivialised and getting air support had been unnecessarily delayed.

The coroner said, “The people lost when the Malu Sara sank didn’t die because some unforeseeable, freak accident swept them away before anything could be done to save them. Rather, they died because several people dismally failed to do their duty over many months.”

One of the families has engaged Cairns lawyer John Bottoms to seek some justice – some prosecutions (where appropriate) and some compensation.

Bottoms asked the Queensland Attorney-General a month ago what action had been taken on the coroner’s report, but still awaits a reply.

The Queensland Office Director of Public Prosecutions says, “No matter concerning the Malu Sara has been referred to the ODPP.”

Federal authorities are acting. Comcare says it is to prosecute the department and the ship-builder, Subsee Explorer Pty Ltd. All very well, but departments and companies are amorphous. The islanders would like to see individuals made accountable.

Also, the coroner said that his Act prevented him from stating a person might be guilty of an offence or that he has referred any matters to the Director of Public Prosecutions. But the Attorney-General says the coroner was not so constrained and says it was significant that the coroner did not make prosecution recommendations.

However, even the most casual reading of the coroner’s report suggests he thinks heads should roll.

The families want the Attorney-General to look at launching prosecutions given the coroner’s findings, because despite his highly critical findings the coroner felt he could not recommend prosecutions himself.

Also, the cultural position of the dead Immigration officer Wilfred Baira reveals another short-coming of Australian law. Under workers’ compensation law and the law of negligence strictly he has no compensable dependants. But he had a large extended family and in the Torres Strait the man with the steady job is expected to provide for all.

It is not only about money. Collectively the extended families and islanders in general want to see some justice.

The last words go to the coroner:

“Despite hearing evidence of incomprehensible incompetence, sustained neglect and disregard for the safety of those on board the Malu Sara, they have throughout remained co-operative and dignified.”

They are probably in for a long wait.