Committees: Senate Foreign Affairs, Defence And Trade References Committee On Australia's Declarations Made Under Certain International Laws

27 February 2020

Senator Patrick: This Senate Foreign Affairs, Defence and Trade References Committee inquiry was important. It looked at whether Australia should revoke some declarations it made in 2002 limiting Australia's acceptance of the compulsory jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. These declarations were part of one of Australia's most shameful international swindles. I'll talk briefly about this. The committee did a good report in the context that it is technically correct and reflects the evidence that it received; however, it is necessary to understand the context in which Australia made these declarations.

The story started back in 1962, when Australia worked out that there was oil underneath the Timor Sea. People need to understand that Timor is flanked by Indonesia, so Indonesia is either side of Timor. In 1972 Australia negotiated a boundary line with Indonesia that didn't go to the median line, which is the international norm under the UNLCOS treaty. Instead, it was based on the natural prolongation of the continental shelf. We were basically saying that our continental shelf extended some distance and therefore we should have entitlement to a greater area or a boundary that was much closer to Indonesia. Part of the trade-off there was that Australia agreed, in the UNLCOS arrangement, to let Indonesia have access, or declare archipelagic zones, such that they had sovereignty over the waters that were within the boundaries of their islands. So a deal was done. We got more than we otherwise would have, in exchange for support in another area.

What that meant was that we now had maritime boundaries that were closer to Indonesia than they were to Australia. But, between the two flanks, the Timor line between Australia and Portuguese Timor was left unresolved. The Portuguese had a very strong view that it needed to be the median line. If it were the median line, Australia was going to miss out on a bunch of oil. Unfortunately, with our mind on oil, what happened was Gough Whitlam went up and talked to Suharto. In circumstances where Portugal, in 1974, had decided to make all of its colonies independent, Gough Whitlam spoke to Suharto and encouraged the annexation of Timor by Indonesia, basically stating that it was the best option. I might add, just to not be partisan here, that after the Whitlam dismissal occurred and Malcolm Fraser became Prime Minister, Fraser restated Australia's position to Indonesia. It was in early December 1975 that Indonesia invaded East Timor. And we should all remember the Balibo Five.

The next step in the process—and this wasn't expected by Australia—was that the Timorese struck up a resistance. In the first three years of the resistance more than 200,000 Timorese were killed. It was an act of genocide, basically, occurring on our shores, but we still had our eye on that oil. We were the only western country that ended up recognising Indonesian sovereignty over Timor, and our aim there was to make sure that we could simply join the lines between the negotiated Indonesian boundary lines to make sure we could get the oil. That's what our aim was.

Australia did then negotiate a treaty, and there's a well known photograph of Gareth Evans with the Indonesian foreign minister, flying above the Timor Sea back in 1989. But all of that came undone when Timor voted in a popular consultation to become independent. So they became independent, which meant Australia had again lost the oil that for some reason we thought belonged to us. The next thing that happened was that deliberations taking place between Libya and Malta back in 1985 gave strong cause to the Timorese to believe that if they took Australia to The Hague they would win. So what did Australia do? We withdrew from the jurisdiction of The Hague. That was a shameful act. At the time, the Labor government stood up and said, 'This is wrong.' In a joint media release by the then shadow minister for foreign affairs, Kevin Rudd MP, and then shadow Attorney-General Robert McClelland, the Labor Party's position was put very strongly. They said:

The announcement marks a historic departure from Australia's proud record of accepting the compulsory jurisdiction of the International Court of Justice without reservation. That position has enjoyed bipartisan support since 1975. It said to the world that Australia honours its international obligations and has nothing to hide. Excluding disputes relating to the delimitation of maritime boundaries from our acceptance of the ICJ's jurisdiction sends a very different message.

So the Labor Party stood up very proudly then and did the right thing.

But, of course, that wasn't the end of the whole sordid tale. After we withdrew from that jurisdiction, the Timorese had no choice but to negotiate directly with us. As they were negotiating with us, what did we do? We sent ASIS up there to spy on the negotiating team. People say 'alleged', but I think we need to get over the 'alleged' bit. This is what Timor lodged in The Hague in their memorial—these are their words:

The circumstances … are that during the negotiation of the 2006 Treaty between Timor-Leste and Australia in 2004, Australia covertly spied on the Timor-Leste negotiating team by means of listening devices surreptitiously and unlawfully placed by Australian personnel in the Timor-Leste government offices. This enabled the Australian negotiating team to become aware of the private discussions of the Timor-Leste negotiating team and of its position in relation to various issues arising in connection with the 2002 Treaty and the attempt to amend it by the drafting of the 2006 Treaty.

That's Timor's view.

Of course, we also know that, down the road here, we've got Witness K and Bernard Colleary currently being charged in the ACT courts for revealing an operation. In a conversation I had with the Secretary of the Attorney-General's Department—who, by the way, was a negotiator back in 2004—I said, 'Are you aware of the allegations in respect of Australia spying on the negotiating team of the East Timorese?' He said, 'I'm aware of that. There's a criminal case in the ACT. I'm well aware of that.' I said to him, 'Sure; and I presume most criminal cases are not launched on the basis of a fictitious operation,' and he said, 'I would hope not'. There is no question that we spied on East Timor, and we should simply acknowledge that. The committee should not allow its credibility be undermined by expressing doubt about what we know to be true, and that is that Australia spied on East Timor.

The committee recommended that we simply don't revoke the declarations that we made—but we should. And here are the two important reasons that we should: it would serve as an important reconciliation step with the people of Timor-Leste and it would enhance our standing in the international community as a returning participant in the international rules based order. Labor, who chaired this committee, have now retreated from the principled position that they held when the declarations were made—and that's hugely disappointing. I provided a dissenting recommendation that Australia should revoke the declarations made on 22 March 2002. Sadly, the Labor Party have now joined Australia's Timor-Leste boat of shame. I seek leave to continue any remarks.

Leave granted; debate adjourned.

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