Senators Madigan and Xenophon question DFAT on West Papua and Timor-Leste

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SENATE
FOREIGN AFFAIRS, DEFENCE AND TRADE LEGISLATION COMMITTEE Wednesday, 4 June 2014

Members in attendance: Senators Dastyari, Edwards, Eggleston, Farrell, Faulkner, Fawcett, Hanson-Young, Kroger, Ludwig, Ian Macdonald, Madigan, McEwen, Milne, Rhiannon, Stephens, Wong, Xenophon. 

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Senator MADIGAN: Good afternoon, gentlemen. I have a few questions on West Papua. I was wondering if you can inform the committee of what aid projects are currently funded by the Australian government in the West Papuan provinces?

Mr Cox: I will ask Ms Corcoran to come and assist in answering that question.

Ms Corcoran: Would you mind repeating the question please?
Senator MADIGAN: What aid projects are currently funded by the Australian government in the West Papuan province?

Ms Corcoran: At the moment we are providing a range of aid programs. In 2012-13 we spent approximately $22 million on aid programs in the Papuan provinces. Some of those are delivered specifically to those provinces and some of those are programs that have elements in Papuan provinces and elements in the rest of Indonesia. Just to take you through the details of those, through the Clinton Health Access Initiative, CHAI, we are addressing the high rates of HIV in the Papuan provinces. The program is providing HIV testing services and treats more than 20,000 people living with HIV. The program is running through 2012-13 to 2015-16.

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In the education sector we have provided 225 scholarships to applicants from West Papua for post-graduate study in Australia since 1999. We are working with UNICEF over 2010 to 2013 and with local governments to improve primary education in six districts, improving planning and literacy and numeracy teaching in schools.
In disaster risk reduction we are also partnering it with the Australian Red Cross and Oxfam, helping district governments in those provinces and local Red Cross branches and communities to prepare for natural disasters.
We are supporting the Indonesian government's program for community empowerment in the Papuan provinces which provides small grants to communities to build vital infrastructure in the provinces. Through our Australia-Indonesian Partnership for Rural Development, which is AIPD Rural, we are also helping to increase the incomes of poor farmers, including in Papua and West Papua provinces.

Senator MADIGAN: Could you take on notice to provide the committee with what current health and education statistics are available for the West Papuan province?

Ms Corcoran: I can take that on notice.

Senator MADIGAN: Does DFAT fund any human rights NGOs in West Papua, and which ones are they if
you do?

Ms Corcoran: I am not aware of that so I will have to take that on notice as well.

Senator MADIGAN: Moving onto Timor-Leste. I believe that currently Australia is involved in two legal cases with Timor-Leste. What impact have these legal cases had on Australia's relations with Timor-Leste?

Mr Varghese: We have sought to handle these two cases within the context of a bilateral relationship which remains a strong relationship. Clearly because we are in court we have a very different set of positions on the issues and we will have to see where those two cases end up, but it is a factor in the bilateral relationship. That is clearly the case but it does not mean that we do not continue to have a very strong and close relationship with East Timor.

Senator MADIGAN: Has Timor-Leste expressed any frustration with the current or previous governments' proceedings in the international courts?

Mr Varghese: We are engaged in litigation with them, so they may well express frustration. I am not aware of any direct representations to us that reflect frustration, but it would come with the territory.

Senator MADIGAN: In 2011 I believe the Timor-Leste government rejected the Chinese government's request to build a base in Timor-Leste. Did that concern the department?

Mr Varghese: The fact that they rejected the request?

Senator MADIGAN: Were you concerned about the Chinese requesting to build a base in East Timor?

Mr Varghese: Ultimately questions of East Timor's foreign and security policy are matters for East Timor. Our position on all of these issues is the importance of any initiatives and proposals to be entirely transparent. We do not make a decision for Timor-Leste about their dealings with other countries, that is a matter for them and the other country.

Mr Cox: Timor-Leste has received assistance from China over the years. The presidential palace was built for them by China, as was the foreign ministry. I think the normal development of relations between Timor-Leste and China, as with relations between China and the rest of the region generally, is something that is a matter for Timor, as the secretary says, but generally welcome building positive relations with foreign states.

Senator MADIGAN: So the department is not concerned that China was looking to build a base there?

Mr Varghese: I do not think that it was a proposal that really got into a lot of detail. To the extent that it did not get anywhere and it did not have any detail to begin with, I do not think it was something which we would necessarily have had to give a lot of policy attention to.

Senator MADIGAN: Previously our relationship with Indonesia was based on the Barwick theory, the Lombok Treaty and the JSCOT findings. What is the guiding principle now for the department with our relationship with Indonesia?

Mr Varghese: The Lombok Treaty is still a very important element, at least in terms of the formal relationship between Australia and Indonesia, but the overall framework within which we operate is that the relationship with Indonesia is one of our most important relationships. It has an important economic trade and investment dimension, a very important geopolitical and security dimension and an expanding people-to-people dimension. Indonesia is an important partner of us in regional institutions and works with us multilaterally, so it is a relationship in many dimensions, all of which are very important and underpinned by the fact that we are neighbours, that we both seek to have a comprehensive strategic partnership and that we are both democracies.

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Senator MADIGAN: Do you believe that human rights issues on the ground in West Papua have improved in the past 12 months?

Mr Varghese: I think the trend with human rights in Papua over an extended period of time has clearly been positive. If you compare the human rights situation in the Papuan provinces today with what they were 10 years ago there is a marked improvement. There continue to be human rights concerns and in our dialogue with Indonesia we address those issues and encourage them to address them. I think under President Yudhoyono the official approach to Papua has shown a very high degree of commitment to ensuring the development of the province and also to improving the human rights situation.

Senator MADIGAN: Are you able to enlighten the committee as to access to West Papua for the media and/or human rights watch organisations?

Mr Varghese: Mr Cox may want to add to this. We have raised this with Indonesia. We have encouraged them to provide greater access to the media. I think they have taken some steps to do that. In fact, I think very recently an SBS journalist has made a visit to the Papuan provinces. Mr Cox may have more details.

Mr Cox: Beyond journalists, our own ambassador was most recently there in November last year and we have teams of officials from the embassy visiting regularly. As the secretary says, we had groups in February. We had groups of officials going in March. I think Mark Davis of SBS Dateline was there recently as well, as was seen on television last night. I think there are restrictions on access of journalists. It is not easy to get access, but we continue to advocate for larger and wider access and for more transparency about the situation in the provinces.

Senator MADIGAN: Thank you.

Senator XENOPHON: I have some follow-up questions in relation to Senator Madigan's line of questioning
if I may have the call.

CHAIR: Yes, you may have the call.

Senator XENOPHON: I will just go to the secretary of the department. There are two disputes between Australia and Timor-Leste at the moment, one before the International Court of Justice and the other before an arbitration panel. Is that correct?

Mr Varghese: That is right.

Senator XENOPHON: Could you just outline for clarity—and I am not suggesting that you have not been
clear—what is being disputed before the International Court of Justice and before the arbitration panels?

Mr Varghese: I will ask our senior legal adviser, Ms Cooper, to address questions relating to the cases.

Ms Cooper: You are quite right that there are two cases on foot at the moment with East Timor. One is in the International Court of Justice and the other one is in the Permanent Court of Arbitration. In the first it relates to the seizure of some documents. That is the ICJ case by ASIO. There have been some provisional measures in relation to that. The ICJ has issued provisional measures in that and there will be a substantive hearing later in the year. The second is an arbitration that relates specifically to the validity of what is known as the CMATS Treaty.

Senator XENOPHON: In relation to the arbitration—

Senator Brandis: I am sorry to interrupt you, but for that reason, that is that there are two sets of pending proceedings at the moment, you will understand that there is very little that we are able to say about the matters that are the subject of the dispute.

Senator XENOPHON: Attorney, sometimes I am happy with very little. I will just continue asking questions. I am sure I will be pulled up if there is an issue by yourself or the Chair. This does not relate to the dispute and I am mindful of what you said. Is the arbitration before the international court or what was the terminology?

Ms Cooper: It is the Permanent Court of Arbitration. Senator XENOPHON: The Permanent Court of Arbitration? Ms Cooper: Yes. 

Senator XENOPHON: I always worry about something being called permanent. Is it before that body rather than the International Court of Justice, because Australia withdrew from the maritime jurisdiction of the International Court of Justice back in 2002?

Ms Cooper: No, that is not right.

Senator Brandis: Perhaps I should take these questions. Senator XENOPHON: Yes. I am very happy for you to do that.

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Senator Brandis: I have been very closely involved with this in recent months. There is a dispute resolution mechanism and under that dispute resolution mechanism in the treaty any dispute is resolved before an arbitral tribunal, not the ICJ.

Senator XENOPHON: So it has nothing to do with Australia withdrawing from the maritime jurisdiction?

Senator Brandis: The reason it is before the arbitral tribunal rather than the ICJ is that the dispute resolution mechanism in the treaty provides that that is where disputes are resolved and that is the provision that has been invoked.

Senator XENOPHON: Thank you for clarifying that. I understand these are significant disputes with significant issues at stake. Is the government able to indicate in broad terms or to take on notice how much has been spent on litigating both the matter before the ICJ and the matter before the Permanent Court of Arbitration?

Senator Brandis: I will take that on notice. As you rightly say, these are fairly significant issues and there are a lot of lawyers involved. I will take on notice how much has been expended on legal fees.

Senator XENOPHON: I am happy for that. If you can also indicate both departmental time and external lawyers?

Senator Brandis: For you, Senator Xenophon, I will extend that to include the Attorney-General's Department officials even though this is not the Attorney-General's estimates. For you I will not take a pedantic point about this being asked in the wrong estimates.

Senator XENOPHON: Pedantry and law are not a bad combination sometimes. There is a reason for it, but I am grateful you will not get that point. I would like to go to the issue in relation to the ex-ASIS officer known as Witness K. Is the government able to advise whether his passport has been confiscated?

Senator Brandis: I am not going to be saying anything about Witness K.

Senator XENOPHON: Is there any impediment on Witness K attending to be a witness at the arbitration?

Senator Brandis: I am not going to be saying anything about Witness K.

Senator XENOPHON: Can I ask Ms Cooper, with the Permanent Court of Arbitration, whether there is a provision procedurally, for instance, for evidence to be taken by video link?

Ms Cooper: I could not answer that.

Senator Brandis: That is able to be done.

Senator XENOPHON: So even if Witness K's passport was confiscated—and I know you cannot tell me whether it was or not—the issue of Witness K being able to give evidence is not a live issue if it can be done via video link?

Senator Brandis: I am not going to be saying anything about Witness K and I am not going to be commenting on issues in the proceedings.

Senator XENOPHON: I have one more question on this. I will only be a couple of minutes, Chair. I am trying to be expeditious about this. Ms Cooper, the dispute as I understand it, relates to where the line should be in the treaty between Australia and Timor-Leste.

Ms Cooper: No, that is not right.

Senator XENOPHON: That is not the case?

Ms Cooper: It is not a case about maritime boundaries.

Senator XENOPHON: So it does not relate to that?

Senator Brandis: Ms Cooper is correct; that is not the issue in the case and by 'the case' I take it you are referring to the arbitration and not the proceedings in the ICJ.

Senator XENOPHON: Yes. I am sorry I did not clarify that.

Senator Brandis: That is not the issue in the arbitration but when you say it relates to it, it does in a loose sense. The court is not being asked to make orders in relation to the delimitation of maritime boundaries. That is not one of the orders sought in the case.

Senator XENOPHON: Is it a live issue in the case?

Senator Brandis: It all depends on what you mean by a live issue. There are certain assertions being made in the arbitration concerning the conduct of negotiations. That is what the arbitration is about. Now, depending on what the outcome of the arbitration is, then it is not impossible that that may bear on other issues. This is not

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exactly a state secret. The East Timorese are unhappy with what they see as the deal embodied in the treaty but the revisiting of those boundaries is not one of the grounds of relief sought specifically in the arbitration.

Senator XENOPHON: Thank you for clarifying that. Finally, if I can just go to the line of questioning of 

Senator Hanson-Young in respect of Cambodia—I take it from what you say, Attorney, that you want to encourage Cambodia and work with them to emerge as a democratic country or to strengthen democratic institutions? There was a report in the Sydney Morning Herald of 11 October 2012 in relation to an AusAID project where a number of Cambodians were complaining about the project. This involved their resettlement or being displaced from their homes in respect of a railway project. Mr Cox, I do not know if that nod was in relation to my question or something else.