Guardian Australia exclusive: Nine-kilometre incursion into internal waters by customs vessel the Ocean Protector casts doubt on findings of review that investigated territorial breaches

An Australian customs ship entered far deeper into Indonesian waters than has previously been disclosed despite having digital navigational charts that displayed the correct boundaries of Indonesia’s territorial baselines, casting doubt on some of the findings of a review commissioned to investigate the incursions.



The Ocean Protector entered Indonesia’s internal waters – placing it nine kilometres inside the country’s territorial seas and just 27 kilometres from Indonesia’s shore – on 14 January in Pelabuhan Ratu bay, according to digital navigational maps from the vessel, seen by Guardian Australia and published here.

Archipelagic states have territorial waters that extend 12 nautical miles from a state’s baselines. The water inside those baselines is described as a state’s internal waters.

The digital map Guardian Australia has published shows, based on historical data, the ship crossing a red line that marks Indonesia’s baselines.

Guardian Australia has spoken to a number of mapping and law-of-the-sea experts who have all said the red line on the map represents Indonesia’s baseline. The co-ordinates of the Ocean Protector have been replotted on a separate map using the UN baselines to verify that the vessel was inside Indonesia’s internal waters.

The Australian government’s “on-water” activities to turn back asylum seekers have been shrouded in secrecy under the military-led Operation Sovereign Borders. They led to several incursions into Indonesia’s territorial waters in December and January.

In January the immigration minister, Scott Morrison, conceded Australia had breached Indonesian waters and said: “I should stress that this occurred unintentionally and without knowledge or sanction by the Australian government.”

A publicly released version of a commissioned review of the incursions – led by a panel made up of two customs officers and three defence officers – found they had occurred as a result of “incorrect calculation of the boundaries of Indonesian waters”, rather than navigational error or an intentional act.

The redacted version of the classified report, obtained by the Australian Associated Press under freedom of information laws, said: “Entry to Indonesian waters was inadvertent, arising from miscalculation of the maritime boundaries, in that the calculation did not take into account archipelagic baselines.”

Crucially, the report adds: “Territorial seas declared by foreign nations are generally not depicted on Australian hydrographic charts.”

But the digital map from the vessel casts doubt on these findings, and clearly shows the Australian ship crossing the red line that marks the point of Indonesia’s baselines and entering its waters past the headlands near Pelabuhan Ratu bay. Indonesia’s territorial seas are 12 nautical miles further out from where the baselines are marked in red. It is not known whether the digital mapping device was operational at the time the Ocean Protector entered Indonesian waters.

Guardian Australia put detailed questions to Australian Customs and Border Protection (ACBPS), the Department of Defence, the immigration minister and the defence minister more than 24 hours before publication. On request, Guardian Australia also provided ACBPS an image of the map.



ACBPS was the only agency to respond to questions, and confirmed for the first time that the Ocean Protector had been involved in the incursions.

An ACBPS spokesman said: “No evidence presented to the review indicated officers on the ACV Ocean Protector knew the correct location of archipelagic baselines. The review found substantial evidence indicating that the calculations used by the crews to determine the position of Indonesian archipelagic baselines were incorrect.

“The review recommended further, more detailed investigations be undertaken including into professional conduct. These investigations are currently under way. As a consequence it would be inappropriate to respond to the questions forwarded.

“The image provided appears to be screenshot of a navigational instrument, however, has no identifying detail enabling an assessment of its origin or relativity.”

Paul Barratt, a former secretary of the Department of Defence, said that, assuming the navigational systems were operational at the time, it was difficult to comprehend how the captains of the vessels involved in the incursions were not aware they were entering Indonesian waters.



“Knowing how the Indonesian baselines are set out is navigation 101,” he said. “It should be marked on the maps, it should be in the systems, they should know.”

“The minister said they had taken great steps to make sure they had not violated Indonesian territory so you’d think they would go to some length to find out where that territory is.”

The ship's co-ordinates, which Guardian Australia has seen on digital navigational charts, have been replotted with UN baselines to verify it was inside Indonesia's internal waters

Chris Rizos, a professor of navigation at the school of civil and environmental engineering at the University of New South Wales, said: “The red line on this map shows one of Indonesia’s closing baselines. Travelling beyond that line would place a vessel inside Indonesia’s internal waters. Those lines have been lodged with the United Nations and are widely available."



He added: “Customs and military should be very well-versed about where the baselines are. They should know exactly where they are for Australia and they should know exactly where they are for neighbouring countries.”

Lieutenant-General Angus Campbell, who oversees Operation Sovereign Borders, said: “I would like to make it very clear that, as I understand it, the personnel on these vessels believed they were at all times operating outside Indonesian waters.”



A review was announced by the immigration minister to investigate how the incursions happened. In a later Senate inquiry the chief executive officer of ACBPS, Mike Pezzullo, said inquiries were under way into the conduct of officers involved in the operations.

But Guardian Australia can also reveal that no interview transcripts or recordings were taken for the purposes of the investigation from any members of the private contractors who crew the Ocean Protector, raising further concerns about the extent of the review.

Freedom of information requests to ACBPS for interview transcripts and recordings arising from any interviews with the crew were denied on the basis that no such documents existed.

“ACBPS has undertaken reasonable search in relation to your request. No documents were in the possession of ACBPS on 3 March 2014 when your FoI request was valid,” the decision maker said.

According to the redacted final report the review team conducted an “audit-like assessment” of each incursion as well as a “broader review of instructions and reports”.

The report specifically said enforcement commanders and contracted vessel masters “did not have the requisite professional training to be aware of the operational implications of UNCLOS [United Nations convention on the law of the sea] archipelagic baseline provisions in the calculation of Indonesian maritime boundaries”.

Guardian Australia asked the immigration minister, ACBPS and the defence department how these findings could be established without taking interview transcripts or recordings from all customs officers and private contractors on board, and also asked how many people in total were interviewed on each of the vessels.

An ACBPS spokesman said: “The joint review of positioning of vessels engaged in Operation Sovereign Borders was a comprehensive review intended to rapidly determine what occurred and to identify any immediate actions required to prevent further incursions.



“It involved a full analysis of all patrols as well as causal factors including operational orders, instructions, protocols and procedures observed by assigned assets, and the briefing, training and mission preparation of personnel involved in operations, including information regarding maritime borders.”

While the government has acknowledged the vessels knew where they were at the time of the incursions and did not make positioning errors, there is some question as to whether anyone at any of the command headquarters involved in Operation Sovereign Borders knew the location of the Ocean Protector at the time.



Separate images obtained by Guardian Australia show the vessel had a differential global positioning system (DGPS), which, if active, would allow the captain and officers on board to monitor the location of the vessel. It is not clear whether the DGPS signal from the Ocean Protector was being transmitted to a command headquarters at the time.

Rear Admiral Michael Noonan, the defence commander in charge of Operation Sovereign Borders, told Senate estimates the location capabilities of ships involved in asylum seeker operations varied in how frequently they transmit data, but would not speak on the specific vessels and their capabilities, or what was transmitted during the incursions.

David Shackleton, a former vice admiral and former chief of the Australian navy, said it was likely that DGPS updates on navy and customs ships would be periodic rather than continuous.

“Differential GPS is very accurate. For those that do have it their positional accuracy is very high, down to metres,” he said.

“If they have a system on board which reports their position back to either a commercial or military command centre that would not necessarily be continuous, it would be periodic.”

No responses were received to questions about GPS capabilities.

