Bills: Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2019, Passenger Movement Charge Amendment (Timor Sea Maritime Boundaries Treaty) Bill 2019, Treasury Laws Amendment (Timor Sea Maritime Boundaries Treaty) Bill 2019 - Second Reading

29 July 2019

Senator Patrick: 

I'm glad Australia's finally going to ratify the Timor Sea Maritime Boundary Treaty. It has certainly been a long time coming—half a century, in fact. We will finally have a maritime border with one of our closest neighbours. It is not quite the closest; PNG is.

I was in Timor-Leste in October-November last year as part of a parliamentary delegation, the first such visit to Timor-Leste in 15 years. The people we met, both from the Timorese government and the NGO sector, urged us to ratify this treaty without delay. Seven months after our visit and 1½ years after the Timor treaty was signed in March 2018, we are finally going to ratify it. I shall say a few words about this delay shortly.

I took the opportunity whilst in Timor-Leste to meet independently with civil society organisations and others that were outside the scope of the planning of DFAT. For example, I met with members of the grassroots civil society group known as the Movement Against the Occupation of the Timor Sea, known by its Tetum acronym, MKOTT. MKOTT is an important player in the Timor-Leste vibrant civil society scene. Their biggest rallies attract as many as 50,000 people, and there is photographic evidence on social media of their strong grassroots support. They expressed their dismay to me about the prosecution of Australian lawyer Bernard Collaery and his client, the former Australian Secret Intelligence Service officer known as Witness K, for allegedly exposing the 2004 bugging of the Timor-Leste cabinet offices, which Senator McKim has talked about. They said that the new treaty has brought our two countries together, but, as Senator McKim suggested, they question why the two individuals, Bernard Collaery and Witness K, who did more than anyone to bring about this state of affairs, are being prosecuted. They called on the Australian government to drop the proceedings.

This bill, the Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2019, and the related bills give effect to the new treaty, and include amendments to Australian tax laws to prevent Australian companies being disadvantaged by changes to the maritime boundaries. The amendments will allow Australian companies to deduct capital expenditure into the future, even though there will be no revenue sources from those areas of investment. The treaty gives recognition to Australian oil and gas company operations in the area. It provides for the establishment of a Greater Sunrise special regime area to be administered jointly by Australia and Timor-Leste. Depending on commodity prices and the precise details of the special regime area, Australia is expected to gain between $2 billion and $8 billion over the life of the resource.

I want to flag, however, that the mode of development for Greater Sunrise remains unsettled. There remains the potential for tension and disagreement, and we should be alert to that eventuality. In that regard, it's a matter of concern to me that there has been such a long delay between the signing of the treaty and the ratifying of it. But what is of even greater concern is that the treaty and these bills which give effect to it have not been adequately scrutinised. As Senator McKim has said, the Joint Standing Committee on Treaties, JSCOT, spent less than an hour on this more than a year ago, and the taxation bill amending our Treasury laws has not been sent to a committee for scrutiny. Moreover, when this treaty was being discussed in the other place, there was very little acknowledgement of the submissions of people and organisations that had contributed to the JSCOT inquiry. That's not the right way to treat people who have taken the trouble to contribute to the legislative process.

A case in point is Professor Andrew Serdy—and we heard Senator McKim also acknowledge him—a former DFAT officer who is an internationally renowned expert on maritime law. He asked why the treaty's accompanying National Interest Analysis does not acknowledge that the decision of the Conciliation Commission in 2016 went against Australia, and to that extent must be regarded as a defeat for Australian policy. He asked why the National Interest Analysis says that:

… the settlement contained in this Treaty is based on a mutual accommodation between the Parties without prejudice to their respective legal positions.

He points out that Australia can no longer maintain its claim to an entitlement up to the continental shelf, just as Timor-Leste can no longer claim entitlements 'extending south of the new boundary in the area where it runs north of the median line equidistant from the nearest points of land territory for each party'. Indeed, he says, the treaty

'cannot avoid prejudicing these former positions; that is its entire purpose. To insist otherwise would contradict the permanent nature of the settlement, so the committee may wish to ask the government witnesses what the intent behind this phrase is.' I'm sorry to say that this matter was not pursued by JSCOT when it held its 45-minute long 'inquiry' into the treaty. It only called five witnesses: none from civil society, all from government departments—Jeremy Bruer, James Larsen, Lisa Schofield, Anne Sheehan and Justin Whyatt. Professor Serdy's point about the disingenuousness of the National Interest Analysis wasn't pursued.

I remind the Senate that, with these seven words, 'without prejudice to their respective legal positions', Australia has qualified its ratification of the treaty in terms that leave its options open on the lateral boundaries. The median line was always effectively mandated by international law anyway. We may not have heard the last about this matter. Why was it in there? That was not explored by the committee. Nor did JSCOT follow up on DFAT Chief Legal Officer Jane Larsen's statement that 'the treaty contemplates that Timor-Leste will receive future upstream revenues from fields that lie within its exclusive jurisdiction, including the Buffalo, Kitan and Bayu-Undan gas fields.' That's a snow job, everyone! The truth is that the Buffalo and Kitan fields are almost completely depleted and Bayu-Undan is on its last legs. The truth is that Timor-Leste's future upstream revenue from those fields is pretty weak tea—the cupboard is bare—but JSCOT simply let that comment, that assertion, pass.

The treaty also stipulates that there will be no compensation for past exploitation. That means Timor-Leste will never see revenues that rightfully belonged to it had we settled on the medium line from the very start. The relevant background to this is that, back in 1969, the Australian government under Prime Minister Gordon issued five petroleum exploration permits over parts of the seabed that lay closer to what was then Portuguese Timor. Australia didn't have a maritime border with Portuguese Timor. We negotiated a border with Indonesia in 1971 but rebuffed Portugal's interest in these negotiations. We worked with the Indonesians but we shunned the Portuguese.

Prime Minister Gough Whitlam sealed East Timor's fate on 6 September 1974 when he met with Indonesian President Suharto in Yogyakarta. The Australian embassy's briefing advised Whitlam that Australia wanted East Timor to join Indonesia but emphasised this could only occur with the agreement of the Timorese people. The embassy briefing also placed the East Timor question halfway down the agenda for the meeting. Instead, Whitlam opened up the meeting by discussing it is the first order of business. In a grand gesture, he told Suharto that he believed that Indonesia should annex the territory but that it had to pay lip-service to self-determination. 'Obeisance has to be made to self-determination', as documents in the National Archives of Australia show. The interpreter for Whitlam was Australian diplomat Geoff Forrester, a fluent Indonesian speaker. When the meeting ended, Forrester was 'white in the face', according to Jan Arriens, first assistant secretary at the Australian embassy.

Indonesia then went on to invade the territory in 1975. During the Indonesian invasion and 24-year occupation, East Timor suffered perhaps the largest loss of life relative to the total population since the Holocaust—204,000 people dead out of a starting population of 648,000. That's 31 per cent of the population killed. Australia, who had encouraged them to invade, was the only Western country to recognise Indonesian sovereignty over East Timor—recognition that culminated in the Timor Gap Treaty. We traded our integrity because we wanted the oil.

This cynical sort of behaviour sat uncomfortably with the Australian public, however. For them, the outrage of old diggers who had had their lives saved by East Timorese in World War Two sounded more credible than the clink of champagne glasses in the flight above the Timor Gap. The deployment of Australian troops to East Timor on 20 September 1999 as part of the International Force East Timor, or INTERFET, was a great opportunity to reset the relationship. I'll say more about INTERFET closer to the 20th anniversary of the deployment in the September sitting period this year. In 1999, when Indonesia withdrew from East Timor, the Howard government took immediate steps to gain an advantage over the country's oil and gas resources. One day before INTERFET arrived, East Timor's leader, Xanana Gusmao, had been released from house arrest in Jakarta and flown to Darwin. In her book Crossing the Line: Australia'sSecret History in the Timor Sea, Kim McGrath reports that Australian officials told Gusmao that it was unsafe to return to East Timor. He and the rest of the East Timorese leadership were first required to meet executives from the oil and gas firm ConocoPhillips. She wrote:

They were desperate to return to East Timor.

Under pressure they signed a statement about petroleum resource development in the Timor Sea—the first action of the Australian government. McGrath quotes Xanana Gusmao as follows: 'It was like I had been freed from prison to be a hostage. It was only after I signed that letter they said it was safe to go home.'

Early in 2002, East Timor had sound legal advice from three experts in international maritime law: Professor Vaughan Lowe of Oxford University, Commander Chris Carelton of the UK Hydrographic Office and Australian barrister Christopher Ward. This advice, arranged by the now deceased Australian activist and medical doctor Andrew MacNaughton, showed that Timor-Leste's maritime boundaries and therefore its oil and gas resources were significantly larger than Australia was alleging. Aware of this advice, what did the Australian government do? The Howard government withdrew from the maritime boundaries jurisdiction of the International Court of Justice and the International Tribunal for Law of the Sea in March 2002. We knew we would lose a legal challenge, so we withdrew from the jurisdiction of those courts to deal with us. When Timor-Leste became an independent state three months later it couldn't exercise its rights in international law. For example, it couldn't go to the International Court of Justice. We should remember that when we talk about a rules based international order. I should point out that this withdrawal has yet to be reversed, a fact that undermines our professed commitment to the rules based international order.

Our ruthless treatment of the newly independent state of Timor-Leste had a very serious consequence. It forced the Timorese government to devote enormous energy to securing its economic viability at a time when it had almost no revenue. That robbed it of its ability to focus attention on its myriad of other problems. The country came close to being a failed state in 2006.

As we heard from Senator McKim, the Howard government also ordered the bugging of Timor-Leste's council of minister's meeting room. We now know that that happened, thanks to two Australian heroes Bernard Collaery and a former officer of the Australian Secret Intelligence Service known only as witness K. I might just announce that I have asked that—in fact, I won't do that. They're now being prosecuted in a mostly secret trial. Why is this trial secret? As I argued in the chamber in September last year, some secrecy is needed because ASIS officer identities must be kept secret—I accept that—but witness K can give evidence whilst having his identity concealed. There's no suggestion that intelligence techniques or tactics need to be disclosed. There's ample precedence for such an arrangement, as I explained last September in this chamber.

The Attorney-General, Christian Porter, has issued certificates under the National Security Information Act 2004 over the brief of evidence. I wonder what the government is trying to hide. Is it the possible misuse of Australia's intelligence agencies during the war on terror, as Senator McKim alluded to? These questions cry out for answers.

Senator McKim talked about people who were still in this building or in and around the traps. That reminded me; I wrote some names down. Chris Moraitis was a negotiator during the bugged negotiations and he's now, of course, the Secretary of the Attorney-General's Department. Dave Sharma, now a new MP, was the PM's adviser at the time. The adviser to Downer at the time was one Mr Josh Frydenberg. One of the people involved in the intelligence agency operation was Nick Warner, now the Director-General of National Intelligence. It turns out, if you engage in these unconscionable activities, you kind of make it to the top.

The ACTING DEPUTY PRESIDENT (Senator Kitching): Senator Patrick, I am going to bring your attention to the standing orders about not imputing the reputation of current parliamentarians.

Senator Patrick: I simply stated that Josh Frydenberg was the adviser—

The ACTING DEPUTY PRESIDENT: I'm just drawing your attention to the standing orders—

Senator Patrick: of the foreign minister at the time. That was a statement of fact, Madam Acting Deputy Kitching.

The ACTING DEPUTY PRESIDENT: just in case you were going to go beyond unconscionable—

Senator Patrick: I'll stop. I was talking about the unconscionable conduct of the Australian government. These observations notwithstanding, I think the treaty should be ratified quickly but we should avoid making one mistake that some in other places have already made. We must never say that the additional funds from Greater Sunrise in any way make up for the massive loss of life and human rights violations that the Timorese have suffered.

Some things fall under the category of what are known as sacred values. These things are immune to being traded, discounted or negotiated away as the anthropologist Scott Atran reminds us. The martyrdom and suffering of family members and ancestors cannot be made up for by increasing revenue streams or development plans for Greater Sunrise. To even imply that this is the case would be insulting to many East Timorese. Offering to buy your way around someone's sacred values can result in anger.

I'm concerned by the way we treated the East Timorese. They know what we did and they have been attracted to other countries' assistance more so than Australia's. It's been a national policy disaster. As Senator McKim said, we've got two people who more than anyone else brought this back together, Witness K and his lawyer Bernard Collaery. For their heroic efforts, they are now being prosecuted.

I'm glad to say that we're finally going to ratify the treaty—whilst I register caveats about DFAT's national interest analysis—but there is an ongoing moral debt between Australia and Timor-Leste, and the two Aussie heroes who are facing a secret trial. Thank you.

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