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Australian Year Book of International Law |
On 21 September 1999, in the House of Representatives, the Prime Minister, Mr John Howard, made the following comments concerning East Timor in the course of a speech to the House of Representatives (House of Representatives, Debates, 21 September 1999, p 10025):
The resignation of President Suharto and the moves towards democracy last year in Indonesia opened the door to a possible resolution in East Timor. Moreover … the conflict in East Timor was worsening. I therefore wrote to President Habibie in December last year, encouraging him to take a different approach to East Timor. I suggested to him that he negotiate directly with the East Timorese and consider the option of autonomy for East Timor with an act of self-determination after a substantial period of autonomy.It has to be recognised frankly that, for a quarter of a century, governments of both political persuasions in Australia had reluctantly acquiesced in Indonesia’s policy towards East Timor. Although the issue was raised from time to time, Australian governments were not prepared to see the relationship with Indonesia put under strain for the sake of making progress with East Timor. My letter and the policy changes embodied in it therefore represented a significant change, after a quarter of a century, in the policy approach of this government towards Indonesia in relation to East Timor.
… Australia would have preferred a longer period of substantial autonomy for East Timor before a ballot was held. We recognised, however, that once the decision had been taken to hold a ballot, the dynamics in East Timor and internationally had changed forever. The best and only realistic course of action was to help the United Nations ensure as safe a ballot as was possible. If we had argued for a delay, the opportunity could well have been lost entirely.
On 26 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the creation of the United Nations Transitional Administration in East Timor. The following is an extract of the release (FA119):
I warmly welcome the historic resolution by the United Nations Security Council authorising the creation of the United Nations Transitional Administration in East Timor (UNTAET).This is a key event in the progress of East Timor to independence. UNTAET will take on the governance of East Timor for the period leading to full independence. UNTAET is charged with:
• Establishing an effective administration;
• Assisting in the development of civil and social services;
• Ensuring the coordination and delivery of humanitarian assistance and rehabilitation;
• Supporting capacity-building for self-government, which will include drafting a constitution and the organisation of elections;
• The establishment of conditions for sustainable development.These are complex and difficult tasks in which Australia stands ready to cooperate.
We also look forward to working with Mr Sergio de Mello whose name has been submitted to the Security Council for the position of the Secretary General’s Special Representative for East Timor.
The Resolution sets up a Trust Fund to support the work of UNTAET and we strongly urge members of the international community to give early generous assistance to the Trust Fund.
The Resolution states that UNTAET and the multinational force in East Timor (INTERFET) will cooperate closely with a view to the replacement of INTERFET as soon as possible. Australia looks forward to the transfer of responsibility for security in East Timor to a United Nations Peacekeeping Operation, which will continue to have a robust mandate. Australia will continue to play an active and significant role in the Peacekeeping Operation.
The Security Council Resolution stresses the need for UNTAET to consult and cooperate closely with the East Timorese people in order to carry out its mandate effectively. We see the creation of UNTAET as marking a new beginning for the people of East Timor. It provides a unique opportunity to turn away from the divisions of the recent past and enter an era of reconciliation and nation building. Australia also stands ready to assist in that process.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech concerning Australia’s relations with Indonesia to the Griffith Asia Pacific Council. An extract follows:
When I look at all that our country has done in relation to East Timor’s transition to independence, I believe that there is much of which Australians can be proud. We have worked for an equitable solution to the troubles in the territory, a solution that will best serve the interests of the East Timorese and Indonesian peoples. We have backed our good will with practical assistance. And when it has been needed, Australians have placed their own lives on the line.In late 1998, Prime Minister Howard wrote to then-President Habibie on the question of East Timor. He suggested an extended period of autonomy for the East Timorese and an eventual act of self-determination — actually not a new approach. It had often been discussed in the context of solutions to East Timor. Dr Habibie decided not to precede the act of self-determination by a long period of autonomy. He opted instead for a process that would resolve East Timor’s status, one way or another, by the end of 1999. The leaders of the East Timorese welcomed the decision. Australia and the international community welcomed the decision. What Dr Habibie proposed was a chance for the East Timorese to decide between autonomy within Indonesia and independence.
Since that time Australia has worked hard to help the process proceed in an efficient and peaceful way. We did more than our fair share in helping UNAMET [United Nations Mission in East Timor] in its task.
On 27 May 1999, in the Senate, Senator Robert Hill, the Minister representing the Minister for Foreign Affairs, made the following comments concerning Irian Jaya in response to a motion to suspend standing orders (Senate, Debates, 27 May 1999, p 5523):
… the Australian government recognises Indonesian sovereignty over Irian Jaya, which was the result of the 1969 UN sponsored act of free choice. …[W]e wish to see the elections which are now taking place take place in an atmosphere where voters are free and able to make their determination without threat or concern for their personal health or wellbeing. Therefore, the Australian government supports the sentiment that all action should be taken by the Indonesian authorities to ensure that the vote is conducted in that environment.
…
The position of the Australian government therefore is that a vote is taking place and we welcome democratic processes of this type. We note the urging by key Irianese figures for the people of Irian Jaya to participate in that process. We urge the Indonesian authorities to ensure that it is a free and safe process within which the people of Irian Jaya can participate. We take this opportunity to again reiterate our very strong position on improving human rights not only for people within Irian Jaya but for all within the region, who still do not necessarily have the same sort of freedoms that we would regard as desirable for all human beings.
On 1 September 1999, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question without notice from Senator Brian Harradine. An extract of the Senator’s response follows (Senate, Debates, 1 September 1999, p 8124):
The Government views its bilateral human rights dialogue with China as a suitable forum for conveying to the Chinese government concerns about reports of restrictions on the freedoms of assembly, association, expression, and religion in Tibet; for seeking information on the detention of religious figures for the peaceful expressions of their beliefs; registering our interest in the preservation of Tibetan culture; and for exploring ways we can cooperate with China to improve the lives of the Tibetan people. At the same time, Australia accepts that Tibet is part of China and we do not support those who campaign for Tibetan independence.
On 10 February 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Daryl Melham concerning the Government’s position on self-determination of indigenous peoples within the context of the Draft Declaration on the Rights of Indigenous Peoples. An extract of the Minister’s response follows (House of Representatives, Debates, 10 February 1999, p 2438):
The Government’s position on self-determination in the context of the UN negotiations on a Draft Declaration on the Rights of Indigenous Peoples is that it is unable to accept the term ‘self-determination’ as it is used in the Draft Declaration, because ‘self-determination’ has no settled meaning and for many it implies establishment of separate nations or separate laws. The Government does not question the legitimate aspirations of indigenous peoples to enjoy meaningful participation in decision-making and political processes and greater autonomy over their own affairs, but there is a difference between this and the way ‘self-determination’ could be interpreted in the Draft Declaration. Australia is, therefore, not seeking to have Article 3, which contains the reference to ‘self-determination’, deleted. Rather it is seeking to have more appropriate language in the Draft Declaration. …… At the 7 December meeting of the UN Working Group, the Australian delegation conveyed the Government’s view that it would be more productive for the Working Group to look at alternative language to ‘self-determination’ in the Declaration which would more accurately express the principle of indigenous peoples having greater opportunities to exercise meaningful control over their affairs. The Government believes that this would be a more positive approach than the alternative proposed of introducing clarifications or qualifications to references to ‘self-determination’ in the text of the document.
On 6 December 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, gave the following response to a question on notice from Mr Laurie Ferguson concerning the issue of self-determination in the Western Sahara region (House of Representatives, Debates, 6 December 1999, p 12916):
Australia supports the principle of self-determination for the people of Western Sahara. In 1988 Polisario and the Moroccan Government agreed in principle to UN settlement proposals to facilitate a ceasefire and conduct a referendum for the self-determination of the people of Western Sahara. Australia supports the holding of a United Nations referendum, scheduled for July 2000, on the future of the disputed territory. Building a framework for an acceptable solution remains the responsibility of the UN Mission for the Referendum in Western Sahara (MINURSO).… In keeping with its long interest in seeing a just and lasting resolution of the status of Western Sahara, as evidenced by Australia’s participation in MINURSO, the Government would be prepared to consider a request from the UN to provide observers to help monitor the referendum. In considering any such request the Government would need to balance its interest in assisting the referendum process in Western Sahara with the demands of other foreign policy priorities.
On 1 September 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Robert McClelland. Extracts of the question and answer follow (House of Representatives, Debates, 1 September 1999, p 9730):
Mr McClelland asked the Minister for Foreign Affairs, upon notice, on 9 August 1999:Will he bring up to date his answer to question No. 2610 (Hansard, 26 May 1998, page 3769) concerning the recognition of Taiwan as the Republic of China.
Is he able to say when members of the South Pacific Forum established diplomatic relations with (a) the People’s Republic of China or (b) Taiwan.
…
Mr Downer
—The answer to the honourable member’s question is as follows:(1) As at 20 August 1999, Taiwan had diplomatic relations with 28 countries. As at that date all 28 countries listed below recognised Taiwan as the ‘Republic of China’: Republic of Malawi; Kingdom of Swaziland; Republic of Senegal: Burkina Faso; The Republic of Gambia; The Republic of Liberia; Sao Tome and Principe; The Republic of Chad; The Holy See; Belize; The Republic of Costa Rica; The Republic of El Salvador; The Republic of Guatemala; The Republic of Honduras; The Republic of Nicaragua; The Republic of Panama; The Republic of Paraguay; Dominican Republic; Commonwealth of Dominica; Grenada; Republic of Haiti; Saint Christopher-Nevis; St Vincent and the Grenadines; The Republic of Nauru; Tuvalu; Solomon Islands, Marshall Islands; Macedonia.
According to Appendix 3-Table 3 of the 1998-99 Yearbook of International Organisations, Vol 2, Taiwan was in 1998 a member of 932 non-governmental organisations and 10 intergovernmental. The yearbook identified those latter organisations as: Afro-Asian Rural Reconstruction Organisation; Asia-Pacific Economic Cooperation (APEC); Asian Productivity Organisation; International Cotton Advisory Committee; International Institute of Refrigeration; International Office of Epizootics; International Seed Testing Association; International Sericultural Commission; Pacific Basin Economic Council; World Trade Organisation (*application pending).
Taiwan participates in intergovernmental and non-governmental international organisations under several different names. These include ‘Taiwan’, ‘Taiwan, China’, ‘Taiwan, Republic-China’. Taiwan participates in APEC and the Olympic Games under the name ‘Chinese Taipei’. Taiwan has applied for WTO membership under the name, ‘The Customs Territory of Taiwan, P’enghu, Kinmen, and Matsu’. In addition, Taiwan participates in some international conferences and meetings as ‘China (Taipei)’, ‘China-Taipei’ or ‘Taipei, China’.
(2) With regard to (a), eight of the fourteen Forum island countries have diplomatic relations with the People’s Republic of China. These are the Cook Islands (which established diplomatic relations in 1997), the Federated States of Micronesia (1989), Fiji (1975), Kirabati (1980), Papua New Guinea (1976), Samoa (1975), Tonga (1998), Vanuatu (1982).
With regard to (b), four Forum island countries have relations with Taiwan. These are the Republic of the Marshall Islands (which established diplomatic relations in 1998), Nauru (1980), the Solomon Islands (1983) and Tuvalu (1978).
On 21 October 1999, in the Senate, Senator Robert Hill, the Minister representing the Minister for Foreign Affairs, was asked a question on notice by Senator Bob Brown concerning the issue of recognition of Polisario in the Western Sahara region. An extract of the Minister’s answer follows (Senate, Debates, 21 October 1999, p 10255):
On the matter of recognition of Polisario, Australia recognises states, not governments, and accordingly there is no basis for formal recognition of the Sahrawi Arab Democratic Republic (SADR) proclaimed in Algeria in February 1976. Australia considers the Polisario Front to be representative of an important body of West Saharan opinion, but does not regard it as the sole representative. Dealings occur with Polisario on an informal basis in New York, and Australian parliamentarians and officials meet with Polisario Front representatives informally.Since many Polisario representatives also hold SADR positions, Australian Ministers do not formally receive them, because to do so might be presented as Australian acceptance of the SADR as the government of Western Sahara.
On 22 November 1999, in the House of Representatives, the Minister for Immigration and Multicultural Affairs, Mr Phillip Ruddock, made the following comments in the course of the second reading speech for the Border Protection Amendment Bill 1999 (House of Representatives, Debates, 22 November 1999, p 12318):
This bill will increase the powers of our border enforcement agencies to combat these intrusions into our country, into our territorial waters, and even into international waters where we might first encounter them. At present, people smugglers in international waters are immune to our laws and practise their trade with a degree of impunity. This bill will redress that situation by allowing our officers to undertake enforcement action beyond our territorial waters and to arrest and prosecute those involved in attempts to breach our sovereignty in this way.
On 2 December 1999, the Minister for Environment and Heritage, Senator Robert Hill, and the Minister for Foreign Affairs, Mr Alexander Downer, issued a joint media release. An extract of the release follows (FA132):
Federal Environment and Heritage Minister, Robert Hill, and Foreign Affairs Minister, Alexander Downer, today announced that the Commonwealth government will take action to define the limits of the continental shelf off the Australian Antarctic Territory so that Australia’s rights under the UN Convention on the Law of the Sea (UNCLOS) can be fully exercised.Under UNCLOS countries are entitled to an Exclusive Economic Zone (EEZ) extending 200 nautical miles from the coastline. Nations may also exercise sovereign rights over the physical continental shelf in areas beyond the EEZ.
Mr Downer said that it was believed that the continental shelf off our Antarctic Territory extended up to a further 150 nm beyond our existing EEZ — an area the size of Queensland.
‘Under the rules of UNCLOS, Australia has until 2004 to lodge data delineating this additional area,’ Mr Downer said.
‘It is a once only opportunity which, under current arrangements, is lost if the 2004 deadline is not met. The Howard government is not prepared to forgo the opportunity to add this area to Australia’s marine territory.
Our claim for the extended continental shelf is consistent with our approach to the continental shelf around Australia for which data is already being collected.’
Senator Hill said that, once accepted, a country has exclusive rights for the purpose of exploring seabed natural resources, which include minerals as well as sedentary living resources of the seabed.
‘The lodging of a claim for this area does not, however, indicate a weakening in the government’s support for the Madrid Protocol which prohibits mining south of 60 degrees south for at least 50 years.
‘There are, however, other resources, such as genetic resources, which may be of value and would not involve mining. Australia’s sovereign rights could be used to prevent others from exploiting the area so that the sea-bottom marine life is protected’, Senator Hill said.
On 8 December 1999, the proposal to denounce the Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface (Rome Convention) was tabled in both Houses of Parliament. Extracts from the accompanying National Interest Analysis follow:
It is proposed that Australia denounce the 1952 Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface (Rome Convention), as soon as practicable.Under Article 35 of the Rome Convention the denunciation will take effect six months after the date of receipt by the International Civil Aviation Organisation (ICAO) of Australia’s notification of denunciation.
…
The Rome Convention was developed to provide internationally harmonious arrangements to ensure adequate compensation for persons who suffer damage caused on the ground by foreign aircraft, while limiting the extent of the liabilities incurred for such damage in order not to hinder the development of international civil air transport. Australia has been a Party to the Rome Convention since 8 February 1959. However, the Convention no longer meets Australia’s needs. It has failed to meet its objective of international uniformity in the treatment of claims by third parties on the ground, as only 43 States are Party to the Convention (Contracting States). Furthermore, today its limits on liability are too restrictive, outdated and inappropriate.
The Civil Aviation (Damage by Aircraft) Act 1958 (the 1958 Act) currently gives the Rome Convention force of law in Australia. The Commonwealth Parliament has recently enacted the Damage by Aircraft Act 1999 (the 1999 Act) to replace the 1958 Act. The 1999 Act provides for a strict and unlimited liability regime for compensating third parties on the ground suffering death, injury or damage from aircraft that come within the Commonwealth’s jurisdiction. However, under section 2 of the 1999 Act, the new Act cannot commence until after Australia’s denunciation of the Rome Convention takes effect. If Australia were to proclaim the 1999 Act while still a Party to the Convention, it would be in breach of its obligations under the Convention. There is little likelihood of the Convention being renegotiated to adequately address its shortcomings.
On 22 April 1999, a statement was delivered by the Minister for the Environment and Heritage, Senator Robert Hill, to the 70th Session of the Commission on Sustainable Development in New York. An extract of the statement follows:
We all know that reform in global fisheries managements needs to achieve rapid and significant gains in achieving sustainability of our oceans and seas. Australia is working hard to achieve this in the fight to stamp out illegal, unregulated and unreported (IUU) fishing.…
Through the Commission on Sustainable Development, Australia urges all nations and regional fisheries organisations to give urgent priority to the Food and Agriculture Organisation’s work to combat IUU fishing and so avoid the collapse of our shared fish stocks.
On 24 May 1999, in the Senate, the Minister for Environment and Heritage, Senator Robert Hill, answered a question without notice from Senator Andrew Bartlett. The following is an extract of the Minister’s response (Senate, Debates, 24 May 1999, p 5148):
… [The Government has said that it] would consider a CITES [Convention on International Trade in Endangered Species of Wild Flora and Fauna] listing for the two species mentioned … —the Patagonian toothfish and the southern bluefin tuna. That meeting of CITES is next year. But we have also said that we do not think that it is the best option for conservation of either species. In relation to the Patagonian toothfish, the honourable senator would be aware of the actions that we took at the CCAMLR [Convention for the Conservation of Antarctic Marine Living Resources] meeting late last year in Hobart: basically to increase conservation measures with observers on vessels, vessel monitoring devices so that they can be followed by satellites and the like, and increasing surveillance as well.…
In addition, we said that it would be wise to move towards a stock certification scheme and trading restrictions, and we said that we would take that to a special meeting—which we caused to be held—of CCAMLR in Brussels last month. That meeting was held and, in relation to putting in place such a scheme which would be a disincentive for the taking of illegal stock because it would be much more difficult to trade in that stock, I think it is fair to say we achieved about three-quarters of our objectives. We are currently considering what further action we should take before this year’s meeting of CCAMLR because there is no doubt that an effective CCAMLR regime not only respected by all CCAMLR parties but also supported by an effective certification and trade scheme is the best way to conserve the Patagonian toothfish.
In relation to the southern bluefin tuna, the best option is of course to operate within the commission [for the Conservation of Southern Bluefin Tuna] and to have it work effectively… There are some slow but positive steps being taken. In particular, there are good vibes with additional countries coming within the commission which will make a significant difference. But the negotiation which is taking place at the moment continues to be difficult. If the commission can be made to work effectively, there is no doubt in my mind that that is a more effective way of conserving the stock than through CITES because…states can simply exempt themselves from the application of CITES and thus it becomes ineffective as far as they are concerned.
… [W]e have the concern that if we move towards CITES now it may well be interpreted as a signal that we are placing less reliance upon the other two methods, and in particular the need to strengthen and improve those methods. That is why we have been cautious about taking that step. But, as I said, the CITES possibility is on the table and we will continue to work down a path to achieve the best possible conservation outcomes.
On 22 April 1999, the Minister for the Environment and Heritage, Senator Robert Hill, delivered a statement to the 70th Session of the Commission on Sustainable Development. An extract of the statement concerning Patagonian toothfish follows:
In Brussels next week there will be a special meeting of the Commission for the Conservation of Antarctic Living Marine Resources (CCAMLR) to develop catch certification and trade related measures to help protect Southern Ocean stocks of Patagonian toothfish from illegal and unregulated fishing activity [IUU].It is important that these measures include steps to prevent IUU fishers trading their catch on international markets.
The outcome of the meeting in Brussels should contribute significantly to the work of the Food and Agriculture Organisation to develop a global plan of action to combat IUU fishing — an Australian initiative agreed at the world’s fisheries Ministers’ meeting in Rome last month.
On 16 August 1999, the Minister for the Environment and Heritage issued a media release concerning Australian action to combat illegal fishing. An extract of that release follows:
Federal Environment and Heritage Minister, Robert Hill, today announced that he has invited Ministers from other nations with responsibility for CCAMLR to attend a special meeting in Hobart in October to seek agreement on tough action to combat illegal fishing in the Southern Ocean.CCAMLR, the Convention on the Conservation of Antarctic Marine Living Resources, manages fishing in the Southern Ocean around Antarctica.
‘Australia and New Zealand have led international efforts to stamp out illegal fishing in the Southern Ocean which is threatening the very existence of the Patagonian toothfish,’ Senator Hill said.
‘Some toothfish stocks are already commercially extinct in the area managed by CCAMLR and further such extinctions are likely in the next year or two unless CCAMLR takes strong action at its next meeting.
‘Illegal fishing activities threaten not only toothfish populations but endangered seabirds, such as albatross, caught by illegal and unregulated longline fishers.
‘While CCAMLR has considerably improved controls aimed at reducing illegal fishing over recent years, Australia continues to be concerned that unless more stringent measures are put in place this year, we will loose the battle to save the toothfish from fishing pirates.
‘Given CCAMLR member countries’ dominance of world markets, I am particularly concerned to see members adopt strict controls to prevent import of toothfish caught illegally or in a manner that undermines CCAMLR.
Senator Hill said that CCAMLR is due to consider new measures at its October meeting which were developed at a special meeting in Brussels earlier this year.
‘However, the draft scheme needs significant changes, including its application to fishing outside the CCAMLR area, if it is to be effective,’ Senator Hill said.
‘Further discussions by officials may not resolve the present scheme’s weaknesses, and Ministerial involvement at CCAMLR will enhance development of effective and timely measures to eradicate the effects of illegal fishing activities.’
On 10 June 1999, in the House of Representatives, the Minister for Agriculture, Fisheries and Forestry, Mr Mark Vaile, answered a question on notice from Mr Patrick Secker concerning the management of southern bluefin tuna. An extract of the Minister’s response follows (House of Representatives, Debates, 10 June 1999, p 6718):
…[O]n 1 June this year, Japan announced that it would begin its second year of unilateral experimental fishing. In 1998, without the agreement of Australia or New Zealand, Japan conducted a unilateral experimental fishing program in which it caught 1,464 tonnes of southern bluefin tuna above its agreed allocation under the commission. This is equivalent to a 25 per cent above quota catch or $60 million worth of extra tuna. Japan is in breach of its obligations under the Commission for the Conservation of Southern Bluefin Tuna and under the United Nations Convention on the Law of the Sea. Japan’s decision follows months of intense negotiation by the members of the commission on a joint experimental fishing program. Australia offered up a proposal for a joint scientific program, which was rejected by Japan.Australia has joined with New Zealand in calling on Japan to cease its experimental fishing program immediately. This government will not agree to a program that adds to the risk of stock reduction, or to a program that does not add significantly to existing assessments of southern bluefin tuna stock or improve the management of southern bluefin tuna. Australia takes its international obligations for sustainable fishing of southern bluefin tuna very seriously. Unmeasured practices on the high seas can have a detrimental impact on fishing stocks in our zone. All bans for port access and access for our fishing zone will remain in place indefinitely.
The government has decided to commence proceedings against Japan under international law immediately. These options are currently being assessed. Australia and our government will continue to take strong measures to ensure the conservation of the southern bluefin tuna stock and protect the interests of the Australian fishing industry.
On 15 August 1999, the Attorney-General, Mr Daryl Williams, issued a media release concerning the commencement of proceedings against Japan in the International Tribunal for the Law of the Sea. The following is an extract of the release:
I will be leaving today for Hamburg, Germany to lead Australia’s case against Japan this week in the International Tribunal for the Law of the Sea. Australia is seeking a halt to Japan’s experimental fishing program for southern bluefin tuna.The International Tribunal for the Law of the Sea decides disputes between Parties to United Nations Convention on the Law of the Sea and also grants orders in the nature of interim injunctions pending final resolution of cases.
Australia is seeking interim orders stopping Japan’s unilateral experimental fishing and requiring the Parties to take a precautionary approach in relation to the southern bluefin tuna stock.
This case is not only of immediate importance to the Parties to the case. It is an important case generally for the regulation of high seas fisheries and, in particular, highly migratory species such as southern bluefin tuna.
As a nation with one of the largest maritime zones in the world, Australia has more than most to lose through the depletion of its marine resources by over exploitation.
One of the core obligations under the Convention is the protection of the living resources of the sea, including southern bluefin tuna.
Japan’s unilateral experimental fishing places the southern bluefin tuna resource in jeopardy with no commensurate scientific benefit, and is in breach of the Convention. Australia and New Zealand, together, are taking this case against Japan.
…
Irrespective of the outcome of these proceedings for provisional measures, Australia will be pursuing the case in the longer term by arbitration under Annex VII of the Convention.
On 28 August 1999, the Attorney-General, Mr Daryl Williams and the Minister for Agriculture, Fisheries and Forestry, Mr Warren Truss, issued a joint media release concerning the outcome of the southern bluefin tuna case. An extract of the media release follows:
The International Tribunal for the Law of the Sea has granted Australia provisional measures to stop Japan’s experimental fishing program for southern bluefin tuna [SBT].The Attorney-General Daryl Williams and the Minister for Agriculture, Fisheries and Forestry Warren Truss today welcome this landmark decision as recognising the agreement in place to ensure a balanced approach to fishing for the important southern bluefin tuna stock.
In a decision handed down in Hamburg, Germany, overnight, the Tribunal granted the bulk of the provisional measures sought by Australia and New Zealand in the proceedings relating to Japan’s unilateral experimental fishing for southern bluefin tuna.
The Tribunal ordered that Australia, Japan and New Zealand:
• shall each refrain from conducting an experimental fishing programme involving the taking of a catch of SBT, except with the agreement of the other parties or unless the experimental catch is counted against its annual national allocation;
• shall ensure, unless they agree otherwise, that their annual catches do not exceed the annual national allocations at the levels last agreed by the parties of 5,265 tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal established under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), account shall be taken of the catch during 1999 as part of an experimental fishing programme;
• should make further efforts to reach agreement with other States and fishing entities engaged in fishing for SBT, with a view to ensuring conservation and promoting the objective of optimum utilisation of the stock;
• should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of SBT;
• shall each ensure that no action is taken which might aggravate or extend the disputes submitted to the arbitral tribunal; and
• shall each ensure that no action is taken which might prejudice the carrying out of any decision on the merits which the arbitral tribunal may render.Most importantly, the decision means all fish caught by Japan under its experimental fishing programme must be included in the 6,065 tonne limit that the Tribunal has imposed upon them.
The Tribunal has therefore quite properly prevented Japan from unilaterally increasing its catch by almost 20%.
Australia, Japan and New Zealand are required to submit to the Tribunal an initial report not later than 6 October 1999 on their compliance with the provisional measures prescribed by the Tribunal.
The decision of the Tribunal at this initial stage has given added impetus to our resolve to obtain a decision in this case which will provide a lasting resolution to the dispute.
…
The decision to commence proceedings under UNCLOS, including seeking provisional measures, was not taken lightly.
It reflected the serious concerns held by Australia over Japan’s unilateral experimental fishing.
Australia and New Zealand had cooperated closely in the legal action taken in response to Japan’s unilateral experimental fishing.
The opening of Australia’s case before the Tribunal on 18 August emphasised the importance of the case for the conservation of the living resources of the high seas generally.
The Government notes that the Tribunal had stated inter alia in its order that:
• the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment;
• the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of SBT; and
• the parties should intensify their efforts to cooperate with other participants in the fishery for SBT with a view to ensuring conservation and promoting the objective of optimum utilisation of the stock.
On 30 August 1999, in the House of Representatives, the Attorney-General, Mr Daryl Williams, gave the following response to a question without notice from Mr Barry Wakelin concerning the outcome of the southern bluefin tuna case (House of Representatives, Debates, 30 August 1999, p 9344):
…[T]he International Tribunal for the Law of the Sea handed down a landmark decision calling on Japan to stop its experimental fishing program for southern bluefin tuna . The decision is an important win for Australia in its attempt to conserve and protect the stock of this fish, and this is the first time the tribunal has made an order of this kind. It effectively stops Japan from unilaterally taking thousands of tonnes of tuna beyond previously agreed limits.… Japan carried out a unilateral experimental fishing program for southern bluefin tuna last year and again this year, despite Australian objections. But … the experimental program is nothing but commercial fishing under the guise of science. Japan’s action has the potential to adversely affect the southern bluefin tuna stocks, which are at historically low levels. In a great step forward that balances protection of the species on the one hand with legitimate managed fishing on the other hand, the tribunal has quite properly prevented Japan from unilaterally increasing its catch beyond the agreed limits.
On 30 August 1999, in the House of Representatives, the Minister for Agriculture, Fisheries and Forestry, Mr Warren Truss, was asked a question without notice by Mr Ian Causley, concerning the effect of the outcomes of the decision of the International Tribunal for the Law of the Sea. The following is an extract of the Minister’s response (House of Representatives, Debates, 30 August 1999, p 9346):
The decision certainly confirms Australia’s view that southern bluefin tuna is subject under international law to conservation and management. The challenge for Australia now is to ensure that the fishery is managed in a sustainable way so the Australian bluefin tuna industry can continue to fish the species responsibly, as can other countries around the world which have a legitimate interest in bluefin tuna.The decision is also an important boost to Australia’s reputation as an international manager of fisheries, and our standing in this area and our responsibility for managing the fisheries, particularly on the high seas, will be strengthened and become even more important in the years ahead. This decision is also important not just to those who are choosing to fish bluefin tuna but to others who fail to honour the spirit of the agreement in relation to the orange roughy fisheries in the South Tasman Rise and to others who are seeking to ignore the obligations that we all have to ensure that the world’s fishing stocks are sustainably managed.
No country in the future will be able to claim that they can take greater than their entitlement on the grounds of experimentation. Indeed, Australia will be looking to other nations—Japan, New Zealand and our other colleagues—to work constructively together to ensure that fishing stocks are managed properly in the future.
On 30 August 1999, in the Senate, the Minister for Environment and Heritage, Senator Robert Hill, answered a question without notice from Senator Brian Greig concerning the fishing of orange roughy. An extract of the Minister’s response follows (Senate, Debates, 30 August 1999, p 7916):
… Australia and New Zealand have both agreed to ban fishing on the South Tasman Rise [STR] until a new regional agreement has been negotiated. In relation to other countries, certainly there was a recent incident when three South African vessels and one vessel registered in Belize were discovered fishing a spawning aggregation of orange roughy in an area of the STR which was very close to the Australian fishing zone. As a result of the discovery and diplomatic actions by Australia, the governments of both South Africa and Belize cooperated in bringing the fishing to a halt. Some may argue that that is an almost unprecedented level of cooperation in this area. The South African government advised Australia that it had revoked the licences of its vessels, while Belize deregistered its vessel. I would have thought that the prompt action of South Africa and Belize in relation to the matter should have been applauded. It was certainly deserving of being applauded, and that sort of international cooperation by states is something that the Australian government would want to encourage.…
The issue of orange roughy is important. Historically in Australia it has not always been a happy story. I reflect upon the fact that, in 1990, fishing efforts reached a high of 53,000 tonnes whereas the current TAC is something just over 5,000 tonnes. That is a demonstration in itself of the extent to which Australian vessels at that time over-fished the resource within Australian waters. Australia was warned and has now acted, and we would urge other states to join with us cooperatively to ensure that fishing on the high seas is also conducted in a responsible way.
On 30 August 1999, in the House of Representatives, the Minister for Agriculture, Fisheries and Forestry, Mr Warren Truss, was asked a question on notice by Mr Ian Causley, concerning the outcomes of the southern bluefin tuna case. The following is an extract of the Minister’s response concerning the Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (House of Representatives, Debates, 30 August 1999, p 9346):
… [T]his decision gives new force to the United Nations fish stocks agreement which is currently open for signature. Later this week, I will be introducing legislation into parliament which will be the forerunner to Australia’s ratification of this treaty. We will indeed have globally a new management regime in place to ensure that fish stocks, even on the high seas, can be managed sustainably in the interests of all fishing nations of the world.
On 30 August 1999, in the Senate, the Minister for the Environment and Heritage, Senator Robert Hill, answered a question without notice from Senator Brian Greig. The following is an extract of the Minister’s response concerning the Agreement relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks (Senate, Debates, 30 August 1999, p 7916):
… all countries must recognise their obligations under the United Nations Convention on the Law of the Sea and the United Nations fish stocks agreement covering highly migratory and straddling fish stocks in particular, and that it is the responsibility of governments to ensure their flag state vessels use appropriate fishing practices and manage the fish stocks responsibly. That is the approach of the Australian government, and when instances occur, as has been referred to [see extract under ‘Fisheries — straddling fish stocks — orange roughy’ above], on the high seas it is good to see that diplomatic action can result in responsible states taking action against fishing vessels fishing in an inappropriate way.
On 12 October 1999, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, done at New York on 4 December 1995, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The objective of the Agreement under consideration is to ensure the long-term conservation and sustainable use of straddling and highly migratory fish stocks. The Agreement elaborates upon provisions of UNCLOS [United Nations Convention on the Law of the Sea] and will greatly improve the international management of fishing on the high seas. In particular, the Agreement will strengthen the legal regime for conservation and management of highly migratory and straddling fish stocks implemented through global, regional and sub-regional fisheries management organisations (RFMOs).Straddling and highly migratory fish stocks are the target resources for many of the world’s most important and valuable fisheries. Highly migratory fish stocks are distributed beyond areas of national jurisdiction, though they may spend periods of their life cycles in areas under national jurisdiction and migrate between an exclusive economic zone (EEZ) and high seas, and across oceans. Annex I to UNCLOS contains a list of highly migratory fish stocks including southern bluefin tuna (SBT). Straddling stocks are those that occur both within the EEZ of one or more States and in an adjacent area of high seas. In the Australian context, straddling stocks include orange roughy on the South Tasman Rise off Tasmania, and Patagonian toothfish in the area of the sub-Antarctic external territory of Heard and McDonald Islands.
The Agreement was developed in response to growing international concerns over the rapid increase of unregulated fishing on the high seas, and the damaging effect that overfishing is having on fish stocks and the economic interests of coastal states such as Australia.
Ratification of the Agreement and participation in a strengthened RFMO regime will:
• help achieve sustainable levels of target fish stocks and associated and dependant species through regulated high seas fishing;
• help secure access to those resources now and in the future through cooperation and participation in RFMOs;
• reduce problems of illegal, unregulated and unreported foreign fishing in our areas of interest through new management, compliance and enforcement powers;
• promote widespread adoption of contemporary fisheries
• management principles similar to those already adopted in Australia;
• provide transparency in regional arrangements through enhanced monitoring, data collection, sharing of international data and compliance arrangements;
• maintain the international momentum to bring the Agreement into force and assist in encouraging non-parties to regional arrangements to join those arrangements;
• help to provide employment, food and income for current and future generations through sustainable management of valuable fish stocks.…
Unregulated and unsustainable fishing of highly migratory and straddling fish stocks on the high seas is jeopardising the Australian harvest of these stocks both within and beyond the Australian Fishing Zone (AFZ), and the long-term survival of fishing industries and communities. The recent incidence of unregulated fishing for orange roughy on the South Tasman Rise, the decline in the population of southern bluefin tuna, and pressure on the Patagonian toothfish are prime examples of the damaging effects of unregulated fishing on the sustainability of stocks and the viability of the Australian industry. Ratification of the Agreement addresses these occurrences through new compliance and enforcement powers.
On 23 June 1999, the Amendments, done at Grenada in May 1999, to the Schedule to the International Convention for the Regulation of Whaling 1946, were tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The Convention is a multilateral treaty that regulates the conservation and utilisation of whale stocks. Although negotiated at a time when the primary focus was to ensure international controls over post-war development of the commercial whaling industry, the Convention and the Commission created by it have proved more recently to be an effective vehicle for some major conservation measures … Australia has been a strong advocate of conservation measures within the Commission since the closure of the last Australian shore-based whaling operation in 1979. The Commission is considered the most appropriate forum for pursuit of improved international efforts for the conservation of whales.…
Australian Government policy on aboriginal subsistence whaling recognises the needs of some communities for continued access to whaling and whale products to meet demonstrated traditional cultural and dietary needs in such cultures. It seeks to ensure that the catch limits are compatible with the recovery of whale populations, are established in accordance with the Commission’s procedures and the whaling is carried out as humanely as possible.
The following is an extract common to the National Interest Analyses accompanying
• the Agreement between the Government of Australia and the Government of the Republic of South Africa for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Protocol, done at Canberra on 1 July 1999, tabled in both Houses of Parliament on 11 August 1999;
• the Agreement between the Government of Australia and the Government of the Argentine Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Protocol, done at Buenos Aires on 27 August 1999, tabled in both Houses of Parliament on 12 October 1999; and
• the Agreement between Australia and the Slovak Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, done at Canberra on 24 August 1999, tabled in both Houses of Parliament on 12 October 1999.
The two key objectives of the Agreement are to:
• promote closer economic cooperation between Australia and […] by eliminating possible barriers to trade and investment caused by the overlapping taxing jurisdictions of the two countries, and providing a reasonable element of legal and fiscal certainty within which cross-border trade and investment can be carried on.
• create a legal framework through which the tax administrations of Australia and […] can prevent international fiscal evasion.The Agreement once in force will reduce or eliminate double taxation caused by the overlapping taxing jurisdictions by limiting taxing rights over various types of income flowing between the two countries. …
In negotiating the sharing of taxing rights under bilateral agreements, Australia seeks an appropriate balance between source and residence country taxing rights. Generally the allocation of taxing rights under the Agreement is similar to international practice as set out in the OECD Model Tax Convention on Income and on Capital (‘the OECD Model’), but — consistent with Australian practice — there are a number of instances where the Agreement is biased more towards source country taxing rights: the definition of ‘permanent establishment’ is wider in some respects than the OECD Model, and the Business profits, Ships and aircraft, Royalties, Alienation of property and Income not expressly mentioned Articles also give greater recognition to source country taxing rights.
On 12 October 1999, the Agreement between the Government of Australia and the Government of the Argentine Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Protocol, done at Buenos Aires on 27 August 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
In June 1992, the Senate Standing Committee on Foreign Affairs, Defence and Trade recommended expansion of Australia’s tax treaty network to countries in Latin and South America. Since that time Australia has been pursuing tax treaties with a number of Latin and South American countries. The Agreement with Argentina will be the first Australian tax treaty with a country in the region.… [The text of the Agreement contains] a number of Argentine specialties such as a ‘limited force of attraction rule’ in Article 7.1, treatment of technical services, export of goods or merchandise purchased by an enterprise, treatment of news, certain royalty withholding tax rates, publicly sponsored entertainers and professors and teachers.
On 11 August 1999, the Protocol, done at Sydney on 2 August 1999, to amend the Agreement between the Government of Australia and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, of 20 August 1980, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The operation of the tax sparing provisions in the 1980 Agreement, which apply in relation to certain income derived by Australian residents that Malaysia exempts or taxes at a reduced rate under special incentive measures expired on 30 June 1984. The Letters will extend the operation of these provisions to 30 June 1987.Tax sparing refers to the situation where tax forgone (eg. in the form of tax holidays or tax reductions) by a foreign country on the income of an Australian resident taxpayer is deemed to have been paid. The typical circumstances in which this arrangement operates is where tax incentives are offered by developing nations seeking to attract foreign investment. The rationale for tax sparing is that, without special provisions which recognise such incentives, they would be negated to the extent that the tax forgone by the source country would be collected by Australia.
…
The 1980 Agreement contains ‘tax sparing’ provisions (Article 23) which reflect Australia’s undertaking to provide tax sparing for certain business and non-business income tax incentives provided by Malaysia under its investment promotion measures. It provided for the tax sparing provisions to apply for an initial five year period (which expired at the end of the 1983/1984 year of income) and for that period to be extended for any further period that may be agreed by the respective Governments in an Exchange of Letters for that purpose.
In 1985 Malaysia sought an indefinite extension of the 1980 Agreement’s tax sparing provisions. Negotiations were complex and protracted, but it was finally agreed that the 1980 Agreement’s tax sparing provisions would be extended until 30 June 1987 by the exchange of Letters under consideration and that those provisions would then be replaced, through the Protocol under consideration, with the new tax sparing measures introduced domestically by Malaysia (in 1986) to operate from 1 July 1987 with a review at the end of five years from that date in the Protocol. It was also agreed that fees for technical services represent business profits and should be taxed only by the country of residence of the recipient unless the profits are attributable to a business carried on through a permanent establishment or fixed base in the other country.
In 1986 the Malaysian Government introduced some new tax incentives in its tax incentive legislation. The Letters will ensure the tax sparing provisions in the 1980 Agreement reflect the changes made to the Malaysian tax incentive legislation. The Letters will also extend the operation of the tax sparing provisions in the 1980 Agreement from 1 July 1984 to 30 June 1987. Amendments contained in the Protocol will operate to provide new tax sparing arrangements in relation to certain designated development incentives provided by Malaysia for an additional five year period, ie. from 1 July 1987 to 30 June 1992.
The Protocol will also overcome the double taxation currently facing some residents of Australia who are in receipt of fees for technical services paid by Malaysian residents. It has been agreed that Article 7 (Business Profits Article) of the 1980 Agreement should apply to the taxation of fees for the furnishing of services, including consultancy services, so that taxing rights in relation to such income are allocated to the country in which the services are utilised only where the services are furnished in that country and the provider of the services has a ‘fixed presence’ in that country of more than three months within any twelve-month period. This has been achieved by adding an additional clause to the permanent establishment definition and is of most benefit to those Australian businesses providing services direct from Australia to Malaysian firms.
In addition, the Protocol updates the 1980 Agreement in a number of respects to bring it into line with Australia’s current law and treaty policies and practices. These updates include changes to the definitions of ‘Australia’ (Article 1 of the Protocol), ‘Malaysia’ (Article 1), and ‘land’ (Article 3), and the insertion of provisions dealing with business profits derived via trusts (Article 4), interest derived on the investment of a Government’s official reserves or by a bank performing central banking functions (Article 5), and the allowance of tax credits for the underlying tax (ie. the tax paid on the profits out of which dividends are paid) paid in respect of non portfolio dividends (ie. where the dividend recipient owns at least 10 per cent of the voting shares in the paying company) (Article 9).
On 11 August 1999, the Protocol, done at Sydney on 2 August 1999, to amend the Agreement between the Government of Australia and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to the Taxation of Income, of 20 August 1980, was tabled in both Houses of Parliament. The following is an extract of the accompanying National Interest Analysis:
The Protocol also substitutes more extensive provisions dealing with the alienation of property (Article 6) and includes revised provisions designed to address the issues raised by the Federal Court in Lamesa Holdings BV v FC.The Full Federal Court in Lamesa Holdings decided that real property held by a non-resident through a chain of companies did not fall within the terms of the alienation of real property provision in the Australia/Netherlands double tax agreement.
The decision of the Court means that the alienation of property article applies where real property is held through a company but does not apply where the real property is held through a company at the bottom of a chain of companies and one of the higher tier companies is alienated. This decision has implications for all of Australia’s double tax agreements and highlights opportunities for non-residents to escape Australian taxation on profits from the sale of real property and mining rights in Australia by the use of a chain of holding companies or trusts.
On 11 May 1999, an Agreement between the Government of Australia and the Government of Fiji on Trade and Economic Relations, done at Canberra on 11 March 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
Australia wishes to promote and expand mutually beneficial trade and economic cooperation between the two countries. The Agreement, once in force, shall serve as an umbrella under which specific bilateral economic and trade activities and measures can be put in place to support the strengthening of the Australia/Fiji bilateral trade and economic relationship. These could be formalised through Memoranda of Understanding. Such activities would include institutional strengthening, enhancing economic linkages in specific sectors (such as textiles, clothing and footwear and agriculture), promotion and protection of investment, trade promotion, commodity trade, and trade facilitation.The purpose of the Agreement is to strengthen and diversify the comprehensive trade, investment and economic relationship Australia presently has with Fiji.
On 11 May 1999, the Agreement between the Government of Australia and the Government of the Republic of Lithuania on the Promotion and Protection of Investments, done at Vilnius on 24 November 1998, was tabled in both Houses of Parliament. Extracts of the accompanying National Interest Analysis follows:
The Agreement is a logical means for the Australian Government to stimulate the flow of investment between Australia and Lithuania. The Agreement will put Australian investors in a better position to benefit from the investment opportunities becoming available in Lithuania by providing them with a range of guarantees relating to non-commercial risk.The Australian Government recognises the importance of promoting the flow of capital for economic activity and its role in expanding economic relations and technical cooperation between countries. It considers that investment relations should be promoted and economic cooperation strengthened in accordance with the internationally accepted principles of mutual respect for sovereignty, equality, mutual benefit, non-discrimination and mutual confidence. The Australian Government acknowledges that investments, and associated activities, of investors of one Party in the territory of the other Party should be conducted within the framework of the laws, regulations and investment policies of that other Party. The Agreement will facilitate the pursuit of these objectives by providing a clear statement of principles relating to the protection of investments, combined with rules designed to render more effective the application of these principles within the territories of the Parties.
On 11 May 1999, the Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments, done at New Delhi on 26 February 1999, was tabled in both Houses of Parliament. Extracts of the accompanying National Interest Analysis follow:
The IPPA, by guaranteeing certain treatment for investments, is intended to encourage and facilitate bilateral investment by citizens, permanent residents and companies of Australia and India, in accordance with the internationally accepted principles of mutual respect for sovereignty, equality, mutual benefit, non-discrimination and mutual confidence.
On 11 August 1999, the Agreement between the Government of Australia and the Government of the United States of America on Mutual Antitrust Enforcement Assistance, done at Washington on 27 April 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The globalisation of commercial and business arrangements has increased the likelihood that anti-competitive conduct occurring outside Australia may have an adverse impact on the level of competition in the domestic economy. Therefore, information or individuals who may be able to assist an investigation of a possible contravention of Australia’s ‘antitrust laws’ may be located outside Australia’s jurisdiction.…
The proposed Agreement is intended to improve the effectiveness of the enforcement of the antitrust laws of both countries through cooperation and mutual assistance.
Section 5 of the Trade Practices Act 1974 (Cth) already extends the operation of Part IV of the Act to conduct outside Australia by corporations incorporated or carrying on a business within Australia or by Australia citizens or persons ordinarily resident in Australia, that damages competition in Australian markets. The proposed agreement simply enables the ACCC to obtain information and evidence located in the US that is needed to prove or assist in the investigation of contraventions of Australia’s existing antitrust laws. However, it is also required to enable antitrust US Antitrust Authorities to respond to requests for assistance from the ACCC on antitrust matters.
On 11 May 1999, the Agreement on Mutual Recognition in relation to Conformity Assessment, Certificates and Markings between Australia and the Republic of Iceland, the Principality of Liechtenstein and the Kingdom of Norway, done at Brussels on 29 April 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
For the purpose of trade facilitation, Australia decided to enter into Mutual Recognition Agreements in relation to Conformity Assessment, Certificates and Markings with the countries of the European Economic Area (EEA).Australia recently concluded an MRA on conformity assessment with the European Community (EC). That Agreement however, does not cover all countries that make up the EEA. Iceland, Liechtenstein and Norway belong to the European Free Trade Association (EFTA) and form part of the EEA by virtue of an Agreement between the EC and EFTA States. For sovereignty reasons though, they are not members of the EC nor party to the Australia EC MRA.
Accordingly, there is a small component of Australia’s trade with the EEA that is currently denied the benefits flowing from the EC MRA. The MRA with Iceland, Liechtenstein and Norway will, in conjunction with the EC MRA, ensure that uniform conformity assessment provisions apply to all regulated products covered by the MRAs and will facilitate free movement of Australian goods between all EEA countries.
The MRA is a treaty through which Australia and the other Parties recognise that Conformity Assessment Bodies (CABs) designated by each other are competent to test and certify a specified range of products to meet their domestic regulatory requirements. The MRA will include the following regulated sectors: electromagnetic compatibility, pharmaceuticals (Good Manufacturing Practice), medical devices, telecommunications terminal equipment and automotive product (which are regulated at the Commonwealth level in Australia); and pressure equipment, machinery and low voltage equipment (which are regulated by the States and Territories).
It is often a requirement that traded goods subject to mandatory technical regulations in the State of a Party need to be tested and/or certified for compliance with regulatory requirements by a body located in the importing country. The MRA will enable conformity assessment (ie. testing, inspection and certification) of products intended for sale in the other Party’s territory to be undertaken in the country of origin. This will generate substantial reductions in non-tariff barriers by enabling Australian producers to manufacture products, in this case, to European standards and have them fully assessed for conformity to those standards and legal requirements, in Australia, prior to export.
Economies of scale are offered by the opportunity to have products assessed by the same CABs for both domestic and MRA covered Parties’ export markets at the same time. Exporters will be able to avoid the higher costs arising from the current requirement for conformity assessment activities to be carried out in the importing country.
The provisions of the MRA are consistent with the approach to conformity assessment taken in the World Trade Organisation Agreement on Technical Barriers to Trade ('TBT Agreement').
…
The MRA will not result in new regulations nor address differences in standards but will provide alternative mechanisms for importers and exporters to comply with existing regulatory requirements of the other Party whilst avoiding additional time delays and costs. For example, under MRA provisions exporters will be able to have their products tested or certified prior to export rather than in each of the countries to which they are exporting. This would substantially decrease costs for manufacturers seeking to enter those markets. For products with a relatively short market life, such as information technology products, time delays for product testing and certification in the importing country can severely impact on their marketability.
These savings provide the potential for consumers to benefit from lower prices and a wider range of choice in domestic markets, through cheaper costs for importers and economies of scale offered by being able to have products assessed by the same CABs for both domestic and MRA-covered export markets at the same time.
On 12 October 1999, the Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea, done at Canberra on 17 September 1999, was tabled in both Houses of Parliament. The following is an extract of the accompanying National Interest Analysis:
The major benefit of the Treaty is that it will enhance co-operation between courts in Australia and the Republic of Korea in civil legal proceedings. It is envisaged that the Treaty will contribute to the reduction of costs for litigants and to the more efficient conduct of litigation. It will also allow the use of recent technological developments in the taking of evidence and the service of legal documents in cases involving parties in Australia and the Republic of Korea.The main purpose of the Treaty is to facilitate the service of legal documents and the taking of evidence in civil and commercial legal proceedings in Australia and the Republic of Korea. The objective of such treaties is to overcome some of the difficulties that can arise when a party in one country attempts to pursue civil legal action against a party in another country. These difficulties can be substantial in a country, like the Republic of Korea, which regards acts by or on behalf of foreign courts within its territory as a breach of its sovereignty if they are done without the approval of its authorities.
The Treaty provides a framework for direct co-operation between Central Authorities established in both countries to transmit requests by courts for assistance in serving legal documents or taking evidence. The use of Central Authorities will avoid the delays involved in sending requests through the diplomatic channel. The Treaty sets out agreed procedures for the Central Authorities in each country to assist Central Authorities in the other country with service of process and the taking of evidence. It also sets out the grounds upon which requests can be refused.
The Treaty will be the second treaty on service and evidence between Australia and a country in the Asia-Pacific region, as a treaty between Australia and the Kingdom of Thailand was concluded in 1998. The Treaty between Australia and the Republic of Korea is similar in most respects to the treaty with Thailand and to bilateral treaties on service and evidence Australia has with a number of European countries. The main difference from previous treaties is that the Treaty permits the taking of evidence by video link and the provision of notices, relating to service of legal documents, between government authorities by electronic means.
Both countries are required by the Treaty to appoint a Central Authority to transmit and receive requests for service and letters of request to obtain evidence. The Central Authority for Australia is designated in the Treaty as the Commonwealth Attorney-General’s Department. The Treaty provides for the appointment of additional Central Authorities and it is proposed to designate authorities nominated by the States and Territories as additional Central Authorities for Australia.
On 11 August 1999, the Agreement, done at Brussels on 8 July 1999, amending the Agreement Relating to Scientific and Technical Cooperation between Australia and the European Community of 23 February 1994, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The 1999 Amendment replaces the text of Article 4(2) of the Agreement relating to Scientific and Technical Cooperation between Australia and the European Community which came into force on 27 June 1994 (‘the Head Agreement’). The 1999 Amendment was made under Article 11(2) of the Head Agreement which allows the Head Agreement to be amended or extended.The Head Agreement established formal arrangements to encourage and facilitate science and technology cooperation between Australia and the European Community (EC). This cooperation is based on mutual benefit, exchange of information, effective and equitable distribution of intellectual property, and the pursuit of economic and social benefits. Cooperative activities may include participation in research projects, sharing of research facilities, visits and exchanges of personnel, exchange of information, and other mutually agreed activities.
The most important effect of the Head Agreement was to enable Australians to participate in the EC’s Fourth Framework Programme for research and development (1994-98). However, under Article 4(2) of the Head Agreement such cooperation was restricted to six sectors: biotechnology, medical and health research, marine science and technology, environment, information technologies, and communication technologies.
The 1999 Amendment’s Article 1, replacing Article 4(2) of the Head Agreement, will increase the range of science and technology sectors in which cooperation can occur.
It will enable Australians to participate in projects in all thematic areas of the fifth (1999-2002), and all subsequent, Framework Programmes. The 1999 Amendment also enables Australians to participate in networks between research infrastructure operators, and related research projects.
The 1999 Amendment allows researchers from the EC to participate in any Australian science and technology activities funded or performed by the Commonwealth, the States, the Territories, non-government authorities, and any interested research entities.
On 8 December 1999, the Agreement between the Government of Australia and the Government of the Republic of Korea on Scientific and Technological Co-operation, done at Canberra on 17 September 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The Agreement provides a comprehensive framework to facilitate science and technology co-operation between Australia and the Republic of Korea, across the spectrum of science and technology, including a number of specific fields and in accordance with set principles and respective international obligations.…
The Agreement sets out a framework under which science and technology Co-operative Activities will be undertaken and describes the intellectual property (IP) rights protection that should be afforded to such collaborative research. A joint Committee on Science and Technology will be established under the Agreement to enable whole of government discussions on relevant matters. This is particularly important for discussions, as for the Republic of Korea there are several Ministries covering science and technology issues (including the Ministry of Commerce Industry and Energy, the Ministry of Science and Technology, and the Ministry of the Environment). For Australia, relevant Departments may (depending on the topics for discussion) include; Department of Industry, Science and Resources, Environment Australia, Department of Health and Aged Care, Department of Education, Training and Youth Affairs, and Agriculture, Fisheries and Forestry Australia.
To date the co-operative science and technology relationship between Australia and the Republic of Korea has largely relied on the provisions of a small number of instruments of less than treaty status which did not provide the coverage, IP arrangements and level of discussions that will be enabled by the Agreement once in force.
The Agreement formalises a measured commitment by Australia and the Republic of Korea to encouraging bilateral collaboration across a broad range of science and technology. At the same time, it encourages sound, equitable management of intellectual property and confidential information. While it includes some binding obligations (in relation to national laws and security, funding and co-ordination arrangements) many aspects of the Agreement (notably in relation to intellectual property) represent a commitment to making ‘best endeavours’.
The Agreement commits Australia and the Republic of Korea to supporting Co-operative Activities in science and technology. A number of fields of possible collaboration are listed but collaboration is not limited to those fields. Australia and the Republic of Korea agree to encourage participation in Co-operative Activities by appropriate researchers and organisations, and to make best endeavours to ensure that participants in each Co-operative Activity enter into a ‘Participant’s Agreement’ that details IP protection arrangements and is binding under the domestic law of either Australia or the Republic of Korea (Article III).
On 12 October 1999, the Treaty on Development Co-operation between the Government of Australia and the Government of Papua New Guinea, done at Port Moresby on 7 October 1999, was tabled in both Houses of Parliament. The following is an extract from the accompanying National Interest Analysis:
The 1989 Treaty [on Development Co-operation between the Government of Australia and the Government of Papua New Guinea] committed Australia to make payments of both budget support and jointly programmed aid to Papua New Guinea until the financial year 1999-2000. It also provided for the progressive phase out of budget support and the corresponding build up of jointly programmed aid. During 1998 and 1999 Australia and Papua New Guinea conducted a review of the 1989 Treaty and agreed on the size and shape of the future bilateral aid relationship. Both countries agreed to introduce measures to increase the effectiveness, accountability and contestability of the aid program and to place a greater emphasis on good governance. The review also confirmed that Australia would make no further budget support payments to Papua New Guinea after the 1999-2000 financial year. The 1999 Treaty is necessary to give effect to these agreed outcomes of the review.
On 9 June 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Rod Sawford concerning the World Bank’s Heavily Indebted Poor Countries Initiative. An extract of the Minister’s response follows (House of Representatives, Debates, 9 June 1999, p 6631):
Australia supported at the April 1999 meetings of the International Monetary Fund’s Interim Committee and World Bank’s Development Committee the examination of options to broaden, deepen and hasten debt relief under the World Bank-IMF Heavily Indebted Poor Countries (HIPC) Initiative. This examination of options to enhance the Initiative is being undertaken as part of a wide-ranging review by the Bank and IMF. …The Government acknowledges the good intentions behind the campaign by the Jubilee 2000 Coalition. The devastating effects on very poor countries of unmanageable debt are well known. The Government does not support the call by Jubilee 2000 for cancellation of debt, free of conditions by creditors. A key part of the solution to the debt problem—and, indeed, to achieving long term sustainable growth—is the pursuit of sound economic and social policies. Debt write-off has the potential to shield governments from their responsibilities to pursue sound policies, and to send confusing signals to those poor countries managing their economies (and debts) well and in a sustainable fashion. It is important therefore that debt relief is provided in a way which supports the pursuit of sound policies and good governance—especially if the accumulation of unsustainable debts in the future is to be avoided.
Australia has supported strongly the World Bank-IMF Heavily Indebted Poor Countries Initiative both financially and by encouraging the World Bank and IMF to continue progress on its effective implementation. The Initiative aims to reduce the debt of the world’s poorest countries to sustainable levels, subject to the pursuit of sound economic and social policies. The Government believes that it is the most credible way to provide sustainable debt relief because it seeks to achieve a lasting solution to the debt problem.
Unlike previous mechanisms, the HIPC Initiative deals with debt in a comprehensive way by involving all creditors, including multilateral development institutions.
The Initiative has so far committed US $6.1 billion in nominal debt service relief.
In June 1998 the Treasurer, the Hon Peter Costello MP, announced Australia’s contribution of A$30.5 million.
Australia also supports the comprehensive review of the Initiative being undertaken by the World Bank and IMF with significant input from governments, civil society, non-government organisations and international organisations. At the April meetings of the Bank and IMF, Ministers reiterated the importance of ensuring a clear link between debt relief and sustainable development and poverty reduction, and endorsed the examination of options to provide broader, deeper and faster debt relief. Ministers also supported the continuing link between debt relief and sound economic and social policies and good governance to ensure that debt relief is not wasted. The review’s conclusions and recommendations are expected to be considered at the 1999 Bank and IMF annual meetings in September.
On 9 June 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Rod Sawford. An extract of the Minister’s response follows (House of Representatives, Debates, 9 June 1999, p 6631):
Australia supports in principle the Comprehensive Development Framework (CDF) proposed by the World Bank. Australia also supports the Bank’s intention to test the framework in selected countries in the next 18 months. There are, however, a number of operational and implementation aspects of the CDF—including the implications for multilateral and bilateral donors—which are yet to be resolved. The CDF aims to define, under country ownership, long-term development priorities, to improve donor coordination to achieve these priorities, and to provide a common basis for evaluation and accountability for aid programs. The CDF will be piloted over the next 18 months in 13 countries. The Bank has stated its belief that this should be sufficient to show whether it is possible to achieve the kind of broad consultation and consensus building that is needed. At the recent World Bank Development Committee meeting, attended by Australia, Ministers recognised that the ultimate test of the CDF would be in its implementation and they called on the Executive Board to monitor and evaluate progress in the pilot country cases. Australia will be a participant in discussions within the World Bank, and more broadly, aimed at further refining the CDF concept.
On 8 December 1999, the Minister for Trade, Mr Mark Vaile, made a Ministerial Statement to the House of Representatives. An extract of the statement outlining Australian trade policy follows (House of Representatives, Debates, 8 December 1999, p 13088):
The government adopts an integrated multilateral, regional and bilateral approach to trade policy. The WTO is a vital part of this strategy and the Seattle outcome has not changed that. But the WTO is only a part of our trade policy agenda. Regionally, we will be pressing to invigorate the APEC trade liberalisation and facilitation process when Australia hosts the APEC trade ministers meeting next June. The Seattle outcome means there is a strong case for APEC members to continue regional efforts to build support and momentum for a trade round.We will also be investigating, with our New Zealand and ASEAN colleagues, the potential for a free trade agreement linking CER with the ASEAN free trade agreement area. In this regard, I was pleased to announce earlier today that former Deputy Prime Minister and former Minister for Trade, Tim Fischer, will be the government’s representative on the high level task force to pursue AFTA/CER links. As one of Australia’s most successful trade ministers, Tim Fischer brings a wealth of experience in pursuing closer economic and trade relations with the ASEAN countries.
The delay in a round launch will no doubt also stimulate attention to other possibilities for regional trade liberalisation and greater economic integration. There has been interest expressed in several bilateral and plurilateral combinations, including some which would link North and South America with CER and Asia. The government is open to concluding free trade agreements where they would give Australia substantial gains in market access which Australia could not get elsewhere in a similar time frame.
Bilaterally, the Market Development Taskforce in my department will continue our efforts to open markets and promote exports in both traditional and emerging markets.
Australia has an enormous interest in trade and in protecting and building the global trading system. The government will continue to put that message squarely to the Australian people. In this regard, I will shortly be releasing a new series of regional fact sheets which will highlight the importance of international trade to the prosperity of local communities. This link between our trade performance and our economic livelihood has to be better understood and the government must play its part in conveying this message.
We have a huge stake in the global trading system. So in addition to building a stronger domestic support base to the government’s trade work, we will continue to pursue our international trade policies with maximum energy at all levels—multilateral, regional and bilateral.
On 30 November 1999, the Minister for Trade, Mr Mark Vaile, delivered a statement to the Plenary Session of the Third World Trade Organisation Ministerial Conference. An extract of the statement follows:
Australia is a strong and enthusiastic supporter of the WTO. We recognise the vital role the WTO has played in underpinning global prosperity for the last fifty years.We now have the opportunity this week in Seattle to build on this success and shape the international trade agenda into the next century.
I come to Seattle strongly supporting the launch of a new multilateral trade round.
A new round will deliver major economic benefits to us all — not only in agriculture, which has for far too long been excluded from genuine reform, but also from lower tariff barriers to manufactured exports and better access conditions for our export of services.
Work commissioned by Australia shows potentially massive global economic gains of around $US 400 billion annually from a 50 per cent cut in support and protection.
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We need to remember that the main game of the multilateral trading system is to maintain a stable framework of rules, to deliver the progressive opening of markets across the board, and to prevent the emergence of new restraints to trade.
It is also in all our interests to ensure that the WTO remains a stable and respected institution.
The WTO is accused of a multitude of sins — whether that is in terms of the environment, jobs, income disparities or economic development. This shows that we are not doing enough to promote the WTO as an institution vital to everyone’s economic prosperity.
We have responded to this by more actively seeking to highlight the benefits of international trade to our domestic constituency as an integral part of Australia’s overall trade policy. I urge others to do the same.
Beyond this, we can help the WTO as an institution by not broadening its agenda too much. We need to avoid becoming bogged down with issues over which the WTO has only marginal influence and which belong elsewhere. Similarly, we need to avoid introducing issues which can be misused for protectionist purposes.
At the same time, WTO Members have already recognised that there are some areas where our work clearly overlaps with other policy domains. This includes the links between trade and environment and between trade and development. We need to continue to ensure that our efforts to free up trade are mutually supportive with environmental goals, and advance the broad objectives of sustainable development.
Seattle should mark the beginning of a negotiating process that will reinforce and strengthen the WTO and the trading system we have built since the 1940s.
On 8 December 1999, the Minister for Trade, Mr Mark Vaile, made a Ministerial Statement to the House of Representatives concerning the World Trade Organisation Ministerial Conference in Seattle (House of Representatives, Debates, 8 December 1999, p 13088):
In addition to pushing for the negotiations on agriculture and services to begin early next year, there are other aspects of the WTO we will also pursue. We will press our dispute actions against the infamous US lamb safeguard tariff quotas and Korea’s beef restrictions. We also plan to work, through the WTO dispute investigation and enforcement mechanism I announced in September, to identify and pursue any other areas where our trading interests are being damaged through non-observance of the WTO rules by others. We will also do all we can to see China and Taiwan accede to the WTO early next year, given the sizeable trade benefits in prospect for our exporters in that regard.
On 30 November 1999, the Minister for Trade, Mr Mark Vaile, delivered a statement to the Plenary Session of the Third World Trade Organisation Ministerial Conference. An extract of the statement concerning agriculture follows:
Agriculture is one of the major sticking points. In my former job as Australia’s Minister for Agriculture I often wondered how some of the richest countries in the world could justify huge trade distorting subsidies in agriculture. For Australia, meaningful reform leading to the end of discrimination against agriculture is essential. I have yet to hear anyone who has been able to justify why this should not be the case. For over fifty years we have seen the elimination of tariffs, subsidies and other barriers to trade in other sectors, yet agriculture has not been addressed.
On 8 December 1999, the Minister for Trade, Mr Mark Vaile, made a Ministerial Statement to the House of Representatives concerning the World Trade Organisation Ministerial Conference in Seattle. The following is an extract of the statement (House of Representatives, Debates, 8 December 1999, p 13088):
Through [the] efforts … of Australia and the Cairns Group of agriculture countries, we made significant progress on agriculture. This was also assisted by close cooperation with the United States on this issue.… [W]e have established clearly the almost unanimous expectations of the WTO membership to move toward the elimination of export subsidies, to avoid the protectionist banner of ‘multifunctionality’, to achieve substantial and progressive reductions in domestic support, to pursue market access negotiations aimed at the broadest level of liberalisation and to deal with issues like environment and rural welfare in ways that do not distort production and trade. These elements will provide a very positive direction for next year’s agriculture negotiations.
On 8 December 1999, the Minister for Trade, Mr Mark Vaile, made a Ministerial Statement to the House of Representatives concerning the World Trade Organisation Ministerial Conference in Seattle (House of Representatives, Debates, 8 December 1999, p 13088):
The mandate for the services negotiations has not been controversial. We can expect to make progress on market access in sectors such as financial, telecommunications, professional services and electronic commerce. We will also continue to work on the full intellectual property agenda.Australia intends to continue to fight hard to progress the mandated negotiations, in close cooperation with the Cairns Group and with positively inclined services trading countries. We stand ready to incorporate these negotiations in a broader round as soon as possible and will work to that end. In the meantime, we are well prepared to start the mandated negotiations on agriculture and services in the new year.
On 12 October 1999, the Minister for Trade, Mr Mark Vaile, delivered a speech to the Advisory Committee on Industrial Property at the Consultation Workshop on the Next Round of Multilateral Trade Negotiations. An extract of the Minister’s speech follows:
There is a growing appreciation, in Australia and internationally, of the link between intellectual property and trade. Failure to protect IP effectively is recognised to be a serious distortion and impediment to trade. This understanding led to the WTO TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, concluded as part of the Uruguay Round.TRIPS is a valuable template for strong IP protection. In fact the TRIPS Agreement’s scope and detail and its lack of carve-outs already make it a more complete package than the WTO agreements we have on agriculture and services. Yes there are some unresolved issues, and some lack of clarity, but even as it stands TRIPS is gradually bringing consistency, transparency and a sound level of protection to the IP regimes in our trading partners.
The barriers to market access caused by high tariffs and similar protectionist measures, particularly agricultural ones, are immediate and obvious. IP’s role in ensuring genuine market access is more subtle, but no less important. …
Australia is pushing for a short, sharp WTO round focused on market access as the key outcome from the Seattle Ministerial meeting. Key priorities are reduced barriers to our exports, stronger rules, fairer competition and ensuring commitments are honoured.
There is still much work to do in ensuring that our trading partners carry out existing TRIPS commitments. Given the scope of these commitments, and their value to our export interests, this is where TRIPS can deliver most on market access.
TRIPS commits developing countries to the establishment of a comprehensive intellectual property regime by 2000. This has proved a difficult and complex objective to meet. Implementation of TRIPS has therefore been the prime focus of international cooperation in recent years. At the same time, developing countries are beginning to reap the benefits of their enhanced IP systems, and therefore coming to understand that effective IP protection is not just in the interests of rich countries or multinationals.
Because of the remaining implementation agenda, and the need for greater understanding about the existing IP system, I believe the WTO will need to focus more on reinforcing the existing standards embodied in TRIPS, rather than pushing ahead at this stage to create new TRIPS rules.
Of course, some improvements are needed. TRIPS was concluded just prior to the explosion of electronic commerce, which has been a boon for trade, and has spawned many new enterprises. Many rely on having effective IP rights in the digital environment. But the Internet also poses new IP enforcement challenges. It has created entirely new IP issues — the link between domain names and trademarks, for example.
TRIPS standards will need, in time, to be adapted and extended to take account of new issues. We need to start thinking about how this will be best achieved. Intellectual property issues are complex and it can be difficult to gauge national interests
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in the course of a speech given to the Australian Institute of International Affairs:
Our Government’s consistent position has been that sustained improvement in the standard of human rights globally can best be achieved through domestic reform founded on working institutions which guarantee participation and accountability.…
Australia has played a leading role in developing the international human rights system, and you can expect that role to continue into the future. Although that system has a necessarily broad focus, it does have a limited ability to help states implement agreed standards. Regional human rights mechanisms also have a place, and Australia has done its part to encourage their establishment and effectiveness, including in our Asia-Pacific region.
It is quite clear that the ability of each state to protect human rights effectively will mainly depend on the strength of its own institutions, including a representative legislature, a free and open press, an accountable executive and an independent judiciary. A vigorous civil society is another important element in creating a culture of human rights. When any of these elements is missing or underdeveloped in a country, the whole society suffers. Legitimacy, born of transparency and genuine participation, breeds confidence and dynamism. A lack of democracy and public accountability undermines credibility and breeds resentment, as populations despair of being able to control their own destiny.
On 3 November 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th United Nations General Assembly. An extract of the statement follows:
It is the duty of States to promote and protect all human rights and fundamental freedoms. A corollary of this is the acknowledgment by the community of nations that respect for human rights is a legitimate matter of international concern, and not the exclusive preserve of national governments.
On 10 November 1999, HE Penny Wensley, Ambassador and Permanent Representative of Australia to the United Nations New York, delivered a statement to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of the statement follows:
… Australia will continue to work toward the improvement of rights for all. We believe this can best be achieved through engaging states in constructive dialogue on human rights issues, and through practical assistance, especially in the establishment and development of institutions which guarantee participation and accountability. To this end, Australia strives to promote good governance, with the underpinning principles of sound economic and financial management. We are working with a range of partner countries to deliver practical programs of assistance in the establishment of effective systems of law and justice; the advancement of public sector management; and the development of civil society. We are also active in promoting the establishment and development of national human rights bodies, particularly through support for the Asia-Pacific Forum of National Human Rights Institutions.…
Australia is encouraged by moves in other parts of our region, and elsewhere, to adhere to the standards set down in international human rights instruments. We should not be too disheartened by the uneven pace of progress. We know that governments must often exercise great courage in introducing changes, and that to do so can put their own survival at risk. We also know that every country carries its burdens of history and the legacy of actions for which people long dead are responsible.
On 30 June 1999, the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Report ‘Improving But … Australia’s Regional Dialogue on Human Rights’ was tabled in the Senate by the Deputy President, Senator Paul Calvert. The following is an extract of the Response (Senate, Debates, 30 June 1999, p 6917):
Australian ministers, including the Prime Minister, raise human rights issues where appropriate in relevant bilateral discussions in the margins of the APEC meetings. However the Government does not consider APEC itself to be an appropriate forum in which to raise human rights issues. It has an economic mandate focusing on trade and investment liberalisation, business facilitation, and economic and technical cooperation.
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a speech given to the Australian Institute of International Affairs:
The White Paper [on Foreign and Trade Policy] indicated that human rights are an inseparable part of our efforts overseas for two reasons — because they are a matter that concerns all Australians, and because their general observance helps create the kind of international environment that will advance Australia’s general foreign and trade policy agenda.…
In approaching the task of improving human rights standards in our region and globally, our Government takes a multifaceted approach.
On individual cases of concern, my Department makes many hundreds of bilateral representations on human rights matters each year. Many of these raise cases that are brought to our attention by the Amnesty International Group of the Federal Parliament.
We also provide funding for many human rights projects through our bilateral aid program. Last financial year, around $600,000 was provided to aid small human rights-related projects throughout the region. In addition, more substantial funding was provided to continuing projects, such as our bilateral human rights dialogue with China … and the provision of institutional support for Indonesia’s human rights body, the Komnas HAM (for which we have provided up to $2 million over three years).
At the multilateral level, we are active in all United Nations human rights forums, and have provided financial support for the Office of the High Commissioner on Human Rights. Since we came to office, we have provided over $1.4 million dollars to help it with its human rights work.
Australia played a key role in the successful conclusion last year of a Statute for an International Criminal Court — a matter which gave me great personal satisfaction, and which I count as one of the great achievements of our Government’s human rights agenda.
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech given to the Australian Institute of International Affairs. The following is an extract of the statement:
To ensure that all the officers of my own Department involved in this work understand fully the context in which they are operating, a Human Rights Manual has been produced as a training tool. [It] has proven invaluable not only within my Department but more widely within the Government and outside…Another aspect of our domestic human rights agenda that has international application is the revision of Australia’s National Action Plan on Human Rights, which I and the Attorney-General have been developing through a broad consultative process. The original recommendation from the 1993 Vienna World Conference on Human Rights that all States consider drawing up National Action Plans on Human Rights emanated from a proposal put forward by Australia, and we led the way with our initial National Action Plan in 1994. Our Government intends to continue the process of revising the Plan, both for our domestic purposes and to encourage other states, particularly those within our region, to adopt this means of coordinating and publicising action on human rights issues.
On 6 April 1999, a statement concerning the question of the violation of human rights and fundamental freedoms in any part of the world was delivered by HE Les Luck, Ambassador and Permanent Representative of Australia to the United Nations in Geneva, to the 55th Session of the Commission on Human Rights. An extract of the statement concerning national institutions follows:
Australia believes that a focus on human rights institution-building is the best way to realise all rights — civil and political as well as economic, social and cultural. Institutions which can safeguard freedom of expression, the independence of the judiciary, and open and accountable government — both in the political and economic sense — are vital to ensure the proper development of society. Without them, individual human creativity remains suppressed, to the detriment of the community as a whole. In our own region, we have seen how a lack of transparency in decision-making can have severe consequences for economic development.
On 21 April 1999, the Ambassador and Permanent Representative to the United Nations in Geneva HE Les Luck delivered a statement concerning national institutions to the 55th Session of the Commission on Human Rights. An extract of the statement follows:
Australia believes that independent and pluralistic national human rights institutions are one of the most effective mechanisms available to states for guaranteeing the rights of their citizens. Such institutions, with the capacity to carry out independent investigations and to consider complaints from ordinary citizens, can help to ensure that the international standards that states have agreed to become a reality for each individual.The important and constructive role played by national institutions in the promotion and protection of human rights was affirmed in the Vienna Declaration. Today, just over five years after Vienna, more and more countries have realised the invaluable contribution that such institutions can make towards implementing international human rights principles and standards. Some, including several countries in our own region, have established national institutions. Others, such as Bangladesh, Ecuador, Ethiopia, Fiji, Ireland, the Republic of Korea, Mongolia, Nepal, Papua New Guinea and Thailand, are actively considering, or in the process of establishing, their own national institutions. Australia welcomes these developments and will continue to offer support and encouragement. We hope that more countries will establish national institutions, as a vital complement to international and regional efforts to promote and protect human rights. We hope this trend will continue and in this context, we welcome the very recent announcement that Malaysia will also establish a national human rights institution. Australia also hopes the Malaysian Commission, once established, will be able to become a member of the Asia-Pacific Forum of National Human Rights Institutions.
As countries consider the establishment of national institutions, it is important that due consideration be given to the type of institution that can deliver the best outcomes. The international community has agreed on a set of guidelines, the Paris Principles, which guarantee the effectiveness of such institutions. Australia believes that the Paris Principles — which stipulate that institutions should be independent, adequately resourced and established by law, with the power to investigate human rights violations — offer governments an invaluable guide to creating a national institution which commands both national and international respect.
We have seen how national institutions can serve useful goals beyond their individual countries, particularly as one of the vital building blocks in the development of regional human rights arrangements. In our region, the Asia-Pacific Forum of National Human Rights Institutions has been particularly effective in facilitating the exchange of expertise, resources and information amongst national institutions, governments and non-governmental organisations. The Forum Secretariat has an impressive record as a conduit for technical cooperation. The Australian Government recently decided to increase its funding of the Secretariat threefold, in recognition of the Forum’s expanding operations in a number of Asia-Pacific countries.
The issue of participation by national institutions in the Commission and in its subsidiary bodies has been on the agenda for some time. Australia reiterates its firm belief that independent national institutions have a particular and quite distinct contribution to make to the proceedings of the Commission, and that they should be able to make this contribution in their own right. Australia considers that the arrangement at the Commission on Human Rights last year, which allowed national institutions to address the Commission from a special section of the floor, set aside specifically for this purpose, should be continued.
Australia led the way in supporting the integration of the work on national institutions into the program of the Office of the High Commissioner. We are grateful to the High Commissioner for her work on national institutions, and thank those countries that have joined in supporting this important work.
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning national human rights institutions in the course of a speech given to the Australian Institute of International Affairs:
At the regional level, we’ve supported the establishment of the Asia-Pacific Forum of National Human Rights Institutions. Since its establishment at an inaugural meeting in Darwin in 1996, the Forum has allowed the human rights commissions of Australia, New Zealand, Indonesia, India, Sri Lanka and the Philippines to strengthen cooperation among national human rights institutions, including through information sharing, staff exchanges, technical cooperation and an annual regional meeting. The Forum, which will hold its 1999 meeting in Manila from 6-8 September, also assists other regional governments wishing to establish such institutions. Our Government has increased funding for the Forum secretariat (which is located within Australia’s Human Rights and Equal Opportunities Commission) to $225,000 per year for the next three years to carry out this important work.Australia has also been supporting human rights institution-building within the United Nations. As well as sponsoring resolutions in the UN Commission on Human Rights and the General Assembly promoting the role of national institutions which have gained significant additional support in recent years.
Australia is the principal, but no longer the only sponsor of the work of the Office of the UN High Commissioner for Human Rights on national institutions. This work has been instrumental in the establishment of a number of new national institutions and in the development and success of many others provides technical assistance to countries working to establish their own national institutions.
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a speech given to the Australian Institute of International Affairs:
I expect to see a further boost to regional and bilateral cooperation on human rights issues through the activities of the Centre for Democratic Institutions (CDI), the establishment of which was a key policy commitment of the Government at the 1996 election. The CDI is devoted to the provision of practical support for the consolidation and strengthening of democratic institutions in developing countries covered by Australia’s aid program. It exemplifies a cooperative rather than conflict approach towards promoting human rights and is the flagship of our good governance initiatives. The Government provides funding for CDI activities under our overseas aid program, to a total of $3 million over three years.A focus of the Centre’s training programs is on institution building and the processes by which broader society, notably the media and community groups, can contribute to democratic decision making. It has already made excellent progress, with activities ranging from a workshop on Managing Transition in East Timor, to a four-country project on anti-corruption, to seminars on reporting requirements of human rights treaties.
On 6 April 1999, HE Les Luck, Ambassador and Permanent Representative of Australia to the United Nations in Geneva, made the following comments concerning the Universal Declaration of Human Rights in the course of a statement to the 55th Session of the Commission on Human Rights:
Last year’s fiftieth anniversary of the Universal Declaration of Human Rights served as a means to reflect on the progress made so far, as well as to highlight the still weighty challenges that lie ahead. The twentieth century has witnessed many of the most horrific human rights abuses in the history of the world. These abuses have been the catalyst for an unprecedented growth in international human rights law. As we approach the twenty-first century, the essential task which confronts the global community is to find effective ways to implement the principles we have agreed upon.More than ever before, the Fiftieth Anniversary demonstrated how widely the Universal Declaration’s principles are accepted: cutting across religious, cultural, linguistic and economic boundaries. It is now up to individual countries to take practical steps without which the noble aspirations of the Declaration will remain unattainable.
On 27 October 1999, a statement concerning the rights of the child was delivered on behalf of the Australian Delegation to the 54th United Nations General Assembly. An extract of the statement follows:
On the eve of the twenty-first century, Australia takes this opportunity to reaffirm and restate its commitment to the promotion and protection of the human rights of the world’s children. Unquestionably, children are the most vulnerable group amongst us and as such should be accorded special protection and particular care by the international community.Whilst never losing sight of the challenges that the international community will face in the new millennium, it would be a pity if we were to overlook the significant progress made in this century. It is fair to say that the rights of children have been accorded a central place in our consciousness and this has been clearly acknowledged by the international community through the adoption of various international instruments ranging from the 1924 Geneva and 1959 UN Declarations on the Rights of the Child to the most explicit and comprehensive instrument concerning children — the Convention on the Rights of the Child.
Over the past decade, the Convention has been a significant factor in raising awareness of children’s rights, in acting as a catalyst for change and in providing a practical framework for addressing the needs of children. Australia takes heart from the fact that with 191 countries party to the Convention, it has almost achieved universal ratification. There could be no better acknowledgment of the tenth anniversary of the Convention than full ratification, and we urge the very small number of states which have not yet ratified the Convention to do so as soon as possible.
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Finally, Australia takes the opportunity to state that while significant progress has been made in the promotion and protection of the rights of children, much still needs to be done, particularly in the area of implementation, and we cannot become complacent. We must now seize the impetus afforded by the tenth anniversary celebrations of the Convention on the Rights of the Child, and the dawning of the new millennium, to bring into being for all children the rights and protections which the international community has so clearly acknowledged as being their inherent and inalienable due.
On 19 November 1999, the Attorney-General, Mr Daryl Williams, issued a press release to mark the tenth anniversary of the Convention on the Rights of the Child. An extract of the release follows:
Tomorrow is the tenth anniversary of the United Nations Convention on the Rights of the Child. The Convention was adopted unanimously by the General Assembly of the United Nations on 20 November 1989 and it was ratified in Australia in December 1990. Since then it has achieved almost universal ratification, with 191 countries now party to the Convention.The Convention has played a significant role in raising awareness of children’s rights and in acting as a catalyst for change where necessary. Australia remains committed to the promotion and protection of the human rights of children in Australia and elsewhere.
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Australia is an active participant in the process of negotiating two optional protocols to the Convention.
On 11 February 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, was asked a question on notice by Mr Robert McClelland. Mr McClelland asked the Minister what action Australia had taken to withdraw or modify a reservation made in ratifying the Convention on the Rights of the Child. An extract of the Minister’s response follows (House of Representatives, Debates, 11 February 1999, p 2646):
Upon ratification of the Convention on the Rights of the Child on 17 December 1990, Australia made the following reservation:‘Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia therefore ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37 (c).’
The question of withdrawing or modifying the reservation made when Australia ratified the Convention on the Rights of the Child is considered every year when Australia’s National Action Plan on human rights is updated. In relation to the reservation to Article 37 (1) of the Convention, Australia’s demographic and geographical features often make it difficult to achieve the total segregation of children or juvenile prisoners from adult prisoners. However, the Government is considering the recommendation made by the Joint Standing Committee on Treaties, in its 1998 Report on the Convention on the Rights of the Child, that the Government withdraw the reservation to Article 37 (3) of the Convention. A Government response is currently being formulated.
On 27 October 1999, a statement on the rights of the child was delivered on behalf of the Australian Delegation to the 54th United Nations General Assembly. An extract of the statement concerning the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict follows:
The completion of negotiations for the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict … on the occasion of the tenth anniversary would also reaffirm the international community’s commitment to the promotion and protection of the rights of children.Australia has always been a strong supporter of the development of the Optional Protocol on the Involvement of Children in Armed Conflict and the objective of raising the minimum ages for the recruitment of persons into the armed forces and for their participation in hostilities. Australia has participated actively in the negotiation of the draft Protocol and will continue to do so. In light of the widespread and increasing involvement of children in armed conflicts currently taking place around the world, the Australian Government considers it a priority to support efforts, including the development of this Protocol, aimed at improving the international legal protection available to children in the context of armed conflict. Australia welcomes and strongly supports the efforts of the Chair of the working group to overcome the impasse in the negotiations through informal consultations.
We consider that all sides of the debate should make a concerted effort to develop an acceptable consensus position and hope that participating governments at the working group can match the efforts of the Chair in seeking acceptable compromise and consensus positions. Let us not forget the original goal of the negotiations, which is: to improve upon the current international standard in the Convention on the Rights of the Child, which sets 15 as the minimum age for participation in hostilities and for their recruitment into armed forces. The worst abuses have seen thousands of children as young as 8 to 12 carrying arms and dying in combat around the world. With all due respect to those seeking a ‘perfect’ Protocol, it should be remembered that advances in human rights protection are sometimes achieved with measured steps rather than great leaps forward.
On 27 October 1999, a statement on the rights of the child was delivered on behalf of the Australian Delegation to the 54th United Nations General Assembly. An extract of the statement concerning the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography follows:
The completion of negotiations for the Optional Protocol to the Convention on the Rights of the Child … on the Sale of Children, Child Prostitution and Child Pornography on the occasion of the tenth anniversary would also reaffirm the international community’s commitment to the promotion and protection of the rights of children.Australia has ... been a strong supporter of the development of the Optional Protocol on the Sale of Children, and the objective of strengthening the protection for children against trafficking and sexual exploitation. We are disappointed that progress in this working group has not been greater, and would hope to see the conclusion of a consensus text at the next session of the working group in January 2000. Sexual exploitation of children is an abuse of children’s rights which is increasingly transnational in character and which must be the subject of stronger and more precise international prohibition.
Australia is active in responding to abuses of children’s rights beyond our borders. In 1994, extra-territorial legislation came into force to combat paedophile activities of Australian citizens or residents overseas. Australia is committed to ensuring effective operation of this legislation and there have already been a number of successful prosecutions. Australia is also cooperating with law enforcement agencies of other countries and providing technical assistance to help combat the sexual exploitation of children.
On 9 August 1999, in the House of Representatives, Mr Peter Reith, the Minister for Employment, Workplace Relations and Small Business, answered a question on notice from Mr Martin Ferguson concerning the International Labour Organisation Convention on the Elimination of the Worst Forms of Child Labour. Extracts of the Minister’s response follow (House of Representatives, Debates, 9 August 1999, p 8183):
The Australian Government has supported the concept of a new ILO Convention and Recommendation aimed at eliminating the most exploitative forms of child labour since the proposal was initiated by the ILO in 1997. In the first discussion about the proposed new instruments at the 1998 International Labour Conference (ILC), the Australian Government supported the adoption of a flexible, non-prescriptive Convention which will focus on the most extreme forms of child labour. My department also provided a response to the ILO for the second discussion at this year’s ILC, and engaged in the preparatory work.At the June 1999 International Labour Conference, Australia voted in favour of the adoption of a new Convention and Recommendation on the worst forms of child labour.
On 2 September 1999, in the House of Representatives, the Minister for Employment, Work Place Relations and Small Business, Mr Peter Reith, answered a question on notice from Mr Robert McClelland. Mr McClelland asked the Minister what views were expressed by the Australian Government representatives to the Child Labour of the 87th Session of the International Labour Conference. In response the Minister incorporated the statement delivered by the Australian delegate. An extract follows (House of Representatives, Debates, 2 September 1999, p 9903):
The Australian Government strongly supports the adoption of new instruments aimed at the suppression of the most extreme forms of child labour.The Convention should be flexible and capable of universal ratification, but should impose clear obligations on each ratifying State to take actions appropriate to the gravity of the worst forms of child labour as well as appropriate to national conditions.
The Convention should therefore be concise, principles based and clearly focused on extreme forms of child labour. These characteristics would help ensure that sufficient onus is placed on Members to make continual progress towards achieving the aim of the Convention.
Australia also supports a Recommendation that provides guidance on the way in which the Convention could be implemented. The Recommendation should not however, be regarded as the only way in which the Convention could be implemented, nor should its provisions be regarded as compulsory.
Australia believes that the proposed text of both instruments meets these requirements, subject to some modifications which we intend to propose for discussion.
On 27 October 1999, a statement on the rights of the child was delivered on behalf of the Australian Delegation to the 54th United Nations General Assembly. An extract of the statement concerning child labour follows:
Australia was pleased to have played an active role in the negotiation of the Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour which was unanimously adopted by the 174 States Members of the ILO. The aim of the Convention is to protect children under 18 years of age from abusive practices such as slavery, forced labour, and involvement in prostitution, pornography, production and trafficking of drugs, illicit activities in general, and any work which is likely to harm their health, safety or morals.
On 30 June 1999, the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Report ‘Improving But … Australia’s Regional Dialogue on Human Rights’ was tabled in the Senate by the Deputy President, Senator Paul Calvert. The following is an extract of the Response (at Recommendations 18 and 20) (Senate, Debates, 30 June 1999, p 6917):
Enacting domestic legislation to combat exploitative child labour in other countries and to control imports of goods allegedly produced by child labour is considered by the Government to be an ineffective means of tackling the problem. This view is based on the fact that these problems occur outside Australia’s jurisdiction and the fear that such enactment would work to the detriment of children by driving the problem underground and forcing children into even more harmful situations. This concern is also supported by the conclusion of the ILO Tripartite Working Party on Labour Standards (1995). Import bans specifically targeted towards child labour, under existing Customs regulations, are considered similarly ineffective given the scarcity of accurate and reliable information and evidence.… the Government has strongly supported the development by the International Labour Conference of new international labour standards addressing exploitative child labour and has been active in the negotiations on the texts. These instruments were adopted in June 1999.
The Government believes the most effective remedies for exploitative child labour practices must be focused on root causes—primarily poverty and lack of education. This is most effectively achieved through broad based bilateral development assistance complemented by multilateral efforts which the Government will continue to pursue through its overseas aid program. In the meantime, the Government welcomes and supports voluntary corporate and consumer initiatives which endeavour to increase public awareness of exploitative child labour practices.
…
Since 1992 the ILO has mounted a major offensive against child labour through its International Program on the Elimination of Child Labour (IPEC) by assisting member States in the implementation of national policy and programs to solve child labour problems. Following an earlier payment of US$50,000 in 1995, the Government, through AusAID, contributed a further $US50,000 to IPEC, funding a pilot project on bonded child labour in Nepal.
On 13 October 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly concerning the advancement of women and the outcome of the Fourth World Conference on Women. Extracts of the statement follow:
That women and men should enjoy all human rights equally is a fundamental principle articulated eloquently in the Universal Declaration of Human Rights, and subsequently given legal expression in several international instruments - no more comprehensively than in the Convention Against All Forms of Discrimination Against Women (CEDAW). As we approach the twentieth anniversary, to the day, of the adoption by the General Assembly on 18 December 1979 of this important Convention, it is appropriate to reflect, with some satisfaction, on the great strides taken to advance women's rights. But we cannot be complacent because the task is not complete.It is a testament to the international community’s commitment to the realisation of equal rights for women that the CEDAW Convention is among the most widely ratified of all human rights treaties. This commitment was re-affirmed at the World Conference on Human Rights in Vienna in 1993 and again at the Fourth UN World Conference on Women in Beijing in 1995. This is because experience has shown that when women participate fully in their community, their families, communities — and indeed countries — have a better chance of reaching their full potential.
It is fitting that on this, the twentieth anniversary of the adoption of CEDAW that the General Assembly has adopted an Optional Protocol to that Convention with provisions for a communications procedure and an inquiry mechanism. The Australian government welcomed the opportunity to work with other countries at the four sessions of the Commission on the Status of Women working group to develop the text of the Optional Protocol. Its adoption by consensus by all parties to the negotiation shows the continuing recognition by the international community of the importance of women’s human rights within the UN’s human rights system.
In keeping with the Australian government’s commitment to transparency, Australia will be undertaking extensive consultations on the Optional Protocol involving the Australian Federal Parliament, State and Territory Governments and the wider community. Consultations with all relevant parties are an established and required practice before steps can be taken toward Australia becoming a party to any new treaty.
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Australia signed the Statute of the International Criminal Court in December 1998. Australia played an active role in the negotiation to establish the Court, including as Chairman of the like-minded group. Australia worked hard to ensure that the crimes of rape, sexual slavery, enforced prostitution and other forms of sexual violence in situations of armed conflict were incorporated into the definition of ‘war crimes’ in the Statute.
Another area where Australia has taken practical action to protect women is in its response to the tragic developments in East Timor and Kosovo over the past year. We have provided a temporary safe haven for people fleeing the destruction in their homelands. Of more than 1500 East Timorese evacuees 52% were women; and many of the 4,000 Kosovars given a temporary safe haven in Australia were women and children separated from the rest of their families.
Australia welcomes the opportunity presented by the forthcoming Beijing + 5 Special Session to be held in June 2000, for the international community to review progress made over the past five years in implementing the 1995 Beijing Platform For Action. The Australian Government is currently conducting extensive consultations in Australia with interested individuals and non-government organisations on the special session. Australia looks forward to the special session and will work hard with others to ensure productive outcomes.
On 13 October 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of the statement:
Since signing the Convention on the Elimination of all forms of Discrimination Against Women in 1980, and ratifying the Convention in 1983, Australia has put in place a robust framework of anti-discrimination legislation and positive legislative measures, strategies and programs to assist women. At the national, state and territory levels of Government in our Federal system, specialised machinery of government has been set up to advise on issues relating to the status of women and to monitor and evaluate the outcomes for women of government policies and programs.…
Australia has a long history of commitment to the objectives of the Declaration on the Elimination of Violence against Women. Violence against women is an offence against the whole of society. By denying the fundamental rights of women, such as the right to be free from harm or harassment, the opportunity for the full participation by women in society is severely restricted.
Australia has taken decisive steps to confront this problem. We have made all forms of physical and sexual violence against women a criminal offence, and have put in place a concerted campaign to eliminate domestic violence through the Partnerships against Domestic Violence initiative. This is a collaborative initiative between the national (Commonwealth) Government and the state and territory governments. It is designed to achieve practical outcomes through forging strategic partnerships at all levels of government and the community. The Partnerships program is underpinned by a commitment of AUD 50 million from the national Government up to June 2003.
The Australian Government will not relax the sanctions on violence against women on the grounds of customary practices or cultural prejudices. Australia abhors the practice of female genital mutilation and has introduced strategies aimed at eradicating the practice in Australia, where it exists amongst some ethnic communities. The strategy has a dual focus of supporting women who have been mutilated while preventing the mutilation of girls and young women who may be at risk. This has involved an integrated approach using legislation in combination with community education initiatives.
On 13 October 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of the statement follows:
It is important that the United Nations itself remains the uncompromising advocate of women’s rights.Australia has been a strong advocate of ‘mainstreaming’ human rights in the UN system. This must also necessarily include the integration of women’s issues into all UN mechanisms. There is still too much of a gap between the specialised and mainstream mechanisms. Human rights treaty monitoring bodies and special procedure mechanisms, such as special rapporteurs, need to continue to give increasing attention to the gender dimension of their work. In particular, we would emphasise the importance of an effective partnership between the Commission on the Status of Women and the Commission for Human Rights.
The leadership shown by the UN in its attention to gender equality is an important part of supporting governments in their own efforts to achieve the goal of gender equality.
While it is obviously disappointing that the goal of gender equality in the UN by the Year 2000 is not going to be achieved, we welcome the Secretary General’s renewed commitment to achieving gender equality in the Secretariat as set out his latest report on ‘The Status of Women in the Secretariat’. We will be monitoring progress closely.
We welcome in particular the work to develop Action Plans on Human Resources Management for individual departments and offices which focus on improving gender balance in tandem with other aspects of human resource management such as career development, staff training and staff mobility. We note that the gender aspects of these Plans will be monitored jointly by the Office of Human Resources Management and by the office of the Special Adviser on Gender Issues and the Advancement of Women. Effective collaboration between these two offices is an important element in the ongoing effort to achieve gender equality.
We also welcome UN initiatives to introduce training in gender sensitivity and gender mainstreaming at the departmental level.
We would encourage the establishment of effective monitoring mechanisms to ensure the active commitment of all mangers to the promotion and recruitment of suitably qualified women for all UN positions, particularly at the D-1 level and above.
In this context, it is important for individual States, as well as the UN, to continue efforts to identify suitably qualified women for positions throughout the UN system, including as Special Representatives of the Secretary-General.
On 11 February 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Robert McClelland. Mr McClelland asked the Minister what progress had been made to withdraw or modify Australia’s declaration under the Convention on the Elimination of All Forms of Racial Discrimination. An extract of the Minister’s response follows (House of Representatives, Debates, 11 February 1999, p 2645):
On ratification of the International Convention on the Elimination of All Forms of Racial Discrimination on 30 September 1975, Australia made the following declaration:‘The Government of Australia . . . declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4 (a).’
The declaration was last considered in 1995. Withdrawal of the declaration is not possible at this stage. Article 4 (a) of the Convention contemplates the enactment of criminal offences for racial hatred and incitement to racial discrimination. As the Racial Hatred Act 1995 contains only a civil prohibition on such conduct it does not fulfil Australia’s obligations under Article 4 (a) and therefore is not sufficient to allow Australia to withdraw its declaration. At this point only the ACT Discrimination Act 1991 makes serious racial vilification a criminal offence.
On 19 April 1999, a statement concerning indigenous peoples was delivered on behalf of the Australian Delegation to the 55th Session of the Commission on Human Rights. An extract of the statement follows:
Australia is committed to achieving reconciliation with its indigenous people.…
The Australian Government values very highly the enrichment provided to Australian life by the culture and heritage of its indigenous people. The Government also firmly believes that there can be no meaningful reconciliation process while indigenous people remain severely disadvantaged in comparison with the general community. The Government is committed to addressing the disadvantage suffered by indigenous people through practical and well targeted programs to improve health, housing, education and employment.
The Australian Government has in place an effective combination of policies and programs for indigenous people, which target key areas of need and advance the process of reconciliation between them and the wider community.
On 10 November 1999, the Ambassador and Permanent Representative of Australia to the United Nations in Geneva, HE Les Luck, delivered a statement on behalf of the Australian Delegation to the Third Committee of the 54th Session on the United Nations General Assembly. An extract of the statement follows:
We are speaking today at the mid-point of the International Decade of the World’s Indigenous People. Australia supports and is an active participant in UN processes aimed at promoting and protecting the rights of indigenous peoples throughout the world. In particular, we welcome the enhanced effort being made by UN Specialised Agencies to address the needs of indigenous peoples through practical assistance and improved coordination and delivery of relevant programs.Like many other countries in the Americas and elsewhere, Australia is currently confronting the challenge of reconciling the present with the past. That past brought tumultuous upheaval for indigenous people, and left a legacy of ongoing social and economic disadvantage. On the eve of the new millennium, one of Australia’s key priorities is to ensure that all Australians can look forward to sharing equally in the nation’s future.
1999 has seen Australia take an important step towards this goal. On 26 August, the Australian Parliament passed an historic motion of reconciliation. Through this motion, Parliament ‘expressed its deep and sincere regret that indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many indigenous people continue to feel as a consequence of those practices.’ Parliament also reaffirmed a ‘whole-hearted commitment to the cause of reconciliation between indigenous and non-indigenous Australians as an important national priority for all Australians.’
The motion was welcomed by the Council for Aboriginal Reconciliation as a positive step towards reconciliation and viewed similarly by many indigenous leaders around the country.
Symbolic gestures such as the reconciliation motion help to repair the damage caused to indigenous people by past actions, but more practical initiatives are also needed. The Government believes that meaningful reconciliation cannot be achieved unless we tackle, as a priority, the inequality and disadvantage still experienced by many indigenous Australians today.
One of the priorities of Australian Governments in recent decades has been the issue of indigenous land ownership. It is acknowledged that, for cultural, historical and symbolic reasons, land is important to indigenous people. Consequently, from the early 1970’s Australian Governments have been purchasing privately owned land for the benefit of indigenous communities, and parliaments have legislated to transfer Government land to indigenous control. As a result of these policies, 15% of the Australian continent (an area greater than France and Spain combined) is now owned or controlled by indigenous people. Aboriginal and Torres Strait Islander Australians represent two per cent of the population.
In addition, in 1992 the High Court of Australia’s ‘Mabo’ decision gave ‘common law’ recognition to the continuing rights of indigenous people to possess and enjoy their traditional lands, known as ‘native title’. Through subsequent decisions, it emerged that native title could be claimed over a far greater proportion of the continent than was originally understood following ‘Mabo’. Complementary native title legislation enacted by the Australian Parliament has given effect to these ground-breaking decisions within a workable statutory scheme that clarified the law and creates some certainty in relation to existing land holdings. Almost 80% of Australia can potentially be claimed by indigenous people through the law of native title.
Yet, despite the fundamental importance of land ownership, it is not a panacea to the social and economic challenges facing many indigenous Australians. It is a sad fact that indigenous people are the most disadvantaged group within the Australian community. For example, they have a poorer health profile than other Australians and lower life expectancy and they often experience poor housing and associated living conditions. They are also less likely to complete secondary schooling or to have a job than other Australians.
In this context, the focus of the current Government is on programmes designed to materially improve the social and economic circumstances of indigenous people. The Government is spending a record $A2.2 billion on indigenous issues this financial year, the equivalent of over $21,000 per annum for each Aboriginal household (this is generally in addition to programmes available to indigenous Australians as members of the general public and to other indigenous-specific funding provided by State, Territory and local governments). The Australian Government’s spending is concentrated on the key areas of indigenous health, housing, education and employment. Importantly, the Government’s policies and programmes are being pursued in accordance with its underlying objective of effecting a shift away from welfare dependency, towards economic development and self-reliance.
While no one can expect instant solutions, there is ample evidence that the provision of well-targeted, practical measures is working to improve the situation of indigenous people in Australia. Just a few examples illustrate this point:
Two decades ago the indigenous infant mortality rate was 20 times the non-indigenous rate. It has since been cut by 75 per cent;The proportion of indigenous children who stay on until the final year of schooling has quadrupled since the 1970s. The proportion with post secondary school qualifications has more than doubled over the same period and university enrolments have tripled in the last decade alone;
The proportion of indigenous Australians employed in professional occupations has increased from 14% to 22% of indigenous job-holders in the last decade;
We have moved from a situation in the early 1970’s where around 20% of indigenous families lived in improvised dwellings to a situation today where less than 3% do so.
There is, of course, a long way to go but the Government and indigenous communities are working cooperatively and with full commitment to addressing the issues. The Government supports the principle of indigenous people having substantial input into the development and implementation of government policies which affect them. One way this is achieved in Australia is through the Aboriginal and Torres Strait Islander Commission (or ATSIC), which is a government department, controlled not by a Minister but a popularly elected indigenous board.
ATSIC is the Government’s primary adviser on indigenous issues and controls half of the Government’s annual expenditure in indigenous affairs. In addition, hundreds of other indigenous organisations play a role in developing and implementing indigenous programmes. Many indigenous communities have local government powers on land which they own and control.
In summary, reconciliation is about indigenous and non-indigenous Australians working together to bring about a better future for Australia’s first people, which can only enrich our nation as a whole. The process is aided by gestures such as the historic motion passed by Parliament this year. Even more importantly, it requires an ongoing commitment to eliminating the inequality and disadvantage experienced by many indigenous Australians. There is unambiguous evidence that, as a nation, we are moving towards our goal.
On 11 February 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice concerning Australia’s reservations to the International Covenant on Civil and Political Rights from Mr Robert McClelland. An extract of the Minister’s answer follows (House of Representatives, Debates, 11 February 1999, p 2645):
The question of withdrawing or modifying the reservations made when Australia ratified the International Covenant on Civil and Political Rights is considered every year when Australia’s National Action Plan on human rights is updated. Paragraph (c) of the National Action Plan requires Australia to indicate human rights treaty reservations we intend to remove.In relation to the reservation to Articles 10 (2) and (3) of the Covenant, due to Australia’s demographic and geographical features it is difficult to achieve the total segregation of accused and convicted prisoners, and children or juvenile prisoners from adult prisoners. Furthermore the Australian Government remains convinced that it is appropriate to allow the responsible authorities discretion to determine whether it is beneficial for a child or juvenile to be imprisoned with adults. However the Government is committed to achieving the goal of separation of accused and convicted prisoners and has taken some steps in this direction. For example, under the Standard Guidelines for Corrections in Australia, accused persons awaiting trial are separated from convicted persons as far as practicable and remandees are accorded different treatment from convicted persons. There are no present intentions to withdraw or modify Australia’s reservations.
In relation to the reservation to Article 14 of the Covenant, there are administrative procedures available in all Australian jurisdictions to provide compensation for miscarriages of justice in the circumstances envisaged in paragraph 6 of this Article. The reason for maintaining Australia’s reservation to Article 14 was the requirement in paragraph 6 of that article for statutory compensation in cases of miscarriage of justice, whereas in Australia the procedures for granting compensation do not necessarily have a statutory basis. Accordingly, the reservation to Article 14 is still considered appropriate.
The reservation to Article 20 reflects Australia’s strong tradition of freedom of expression. Where there is a clear necessity to restrict that right in the public interest or for foreign policy reasons, the Federal Government will take the necessary legislative action. The Government has acted to prohibit or suppress propaganda in the past and has passed the Racial Hatred Act 1995. The Racial Hatred Act 1995 strikes a balance between the right to freedom of expression and rights of all persons to live free from fear of violence and racial hatred. Accordingly, there are no present intentions to withdraw Australia’s reservation to Article 20.
On 10 November 1999, the Ambassador and Permanent Representative of Australia to the United Nations in New York, HE Penny Wensley, made the following comments in the course of a statement to the Third Committee of the 54th United Nations General Assembly:
… I would like to single out [an issue] on which progress seems halting at best … the increasing use in some countries of the death penalty, especially for minor crimes. It is Australia’s view that the death penalty is an inhumane form of punishment which violates the most fundamental human right — the right to life … Australia urges all states to sign or adhere to human rights instruments addressing [this issue].
On 10 November 1999, the Ambassador and Permanent Representative of Australia to the United Nations in New York, HE Penny Wensley, made the following comments in the course of a statement to the Third Committee of the 54th United Nations General Assembly:
… I would like to single out [an issue] on which progress seems halting at best … we are concerned at the way national security legislation is brought to bear to deal harshly with the peaceful expression of opinion or belief, in a disturbing number of countries. Australia urges all states to sign or adhere to human rights instruments addressing [this issue].
On 30 March 1999, a statement concerning the right to development was delivered on behalf of the Australian Delegation to the 55th Session of the Commission on Human Rights. Extracts of the statement follow:
Australia takes the floor on this agenda item as a traditional supporter of the right to development. Amongst the many significant issues to be addressed at this Commission, we see the right to development as having a particular importance.Our policies on this issue are informed by a few simple principles which we have arrived at through our own experience of national development and by observing the experience of others:
We believe that the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development.
We understand that the human person is the central subject of human rights and therefore the proper focus for development.
States have the primary responsibility for the creation of national and international conditions favourable to the realisation of the right to development.
Human rights and sustainable development are best promoted and realised when states exercise authority in a manner which is transparent, accountable, effective, equitable and participatory.
Australia was pleased to co-sponsor a right to development resolution at the Fifty-fourth Session of the Commission on Human Rights, which broadly reflected these principles. The consensus achieved last year was particularly important because it included an historic agreement to establish a follow-up mechanism that involved the appointment of an independent expert and the establishment of an intergovernmental working group.
Since these important steps we seem to have lost our way a little. Australia was disappointed that the achievements of the Commission were not sustained at the UN General Assembly last year. The Resolution was adopted on the numbers, but the right to development was not advanced in the process.
If we are to learn from this lesson, it seems that there are three important objectives that we should all agree on:
Firstly, a return to a consensus text at this Commission, including through a sharper focus on the areas of agreement, which are many;
Secondly, the creation of a positive atmosphere in which those issues upon which we presently disagree may be discussed at the working group meeting later this year;
Thirdly, a commitment to a transparent, open and inclusive approach in our work.
This last point is important. The right to development is a collective responsibility which will only be advanced through a spirit of cooperation amongst nations. Therefore, it cannot belong to any one delegation or group.
Whilst the right to development has acquired enormous symbolic importance, we must not allow that to obscure its practical importance. It is a right which should unify rather than divide.
Finally, … as we prepare for the working group on the right to development, it is proper that we should look at new and emerging challenges in the global environment.
But it is just as important to recognise that most of the root causes of underdevelopment have not arrived with the invention of the micro chip — but have been with us for far too long. It is still in these areas that we should focus our attention.
On 3 November 1999, a statement concerning the Human Rights Treaty Bodies was delivered on behalf of the Australian Delegation to the Third Committee of the 54th United Nations General Assembly. An extract of the statement concerning the reform of the treaty body system follows:
The United Nations treaty body system contributes significantly and directly to the protection and promotion of human rights by monitoring implementation of the core human rights treaties; highlighting violations of these treaties and human rights standards; interpreting the rights and obligations contained in the treaties; and encouraging better implementation and compliance through advice to States.The treaty monitoring system will continue to grow in influence as the system continues to mature and an ever increasing numbers of States become party to the major human rights instruments.
Nevertheless, the system is also coming under increasing strain. If not addressed, our Governments believe that these difficulties may jeopardise the effectiveness and credibility of the treaty bodies. These bodies are faced with increasing numbers of reports and communications to consider against a background of reduced or static resources.
In 1989, when Professor Alston submitted his first study on the functioning of the treaty bodies, 646 reports were overdue. In 1993, that number had increased to 714. He concluded that not only had non-reporting by States reached chronic proportions, but also that if all States were to fulfil their reporting obligations, the existing treaty body system would not have the capacity to process them. In 1997, when he presented his final report, the number of overdue reports had increased by a further 34% to 957. In 1999, 1,146 reports were overdue.
As with reports, the numbers of communications, particularly to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights, is increasing. Recent correspondence from the High Commissioner for Human Rights noted that during the first three months of 1999, 300 new cases under the Optional Protocol were received. If this trend continued, there would be 2,523 pieces of correspondence this year alone and the average length of time taken to respond would be 36 months. Although there is currently no backlog of cases, the caseload of the Committee against Torture is also increasing, as is that of the Committee for the Elimination of Racial Discrimination.
While some steps have been taken in implementing the recommendations for reform of the treaty body system suggested in Professor Alston’s report to the Commission on Human Rights we, in company with other like-minded countries, feel that more could be done to further reform of the system so as to make it both more efficient and more effective.
In this regard, we welcome the efforts of the High Commissioner for Human Rights, who has commissioned a study on the treaty bodies. The results of this study are expected to be available this year.
We expect this study will provide valuable insights into the way forward for reform of the treaty body system, and provide further impetus for such reform. It is also important, however, that States work together to develop and promote their own ideas for constructive reforms to improve the effectiveness of the UN treaty monitoring system.
We acknowledge the need for greater resources to be made available in order for the treaty body system to function more effectively. In particular, we welcome the increased allocation of funding to the Office of the High Commissioner for Human Rights to enable it to play its pivotal role as the coordination point for all the treaty bodies. However, increased funding needs to come from the core UN budget.
Given that future reforms of the treaty body system will take place in a climate of increasing budgetary constraint and fiscal tightening, strategies for reform need to involve not just the provision of more resources for the system but also ways of ‘working smarter’. We welcome and encourage the efforts of the treaty bodies in this regard. In particular, the meetings of the Chairpersons of the treaty bodies have provided a valuable forum in which to exchange information, institute procedural reform and improve co-operation between the treaty bodies and other human rights mechanisms.
States themselves can also initiate useful reform measures. For example, some States are seeking to reduce the burden on the reporting system by producing shorter reports which focus on issues identified by the treaty bodies as being of particular concern. Another idea put to the Human Rights Committee in respect of communications, has been to consider the use of ‘chambers’ so as to reduce the overall amount of time taken to reach a final decision on a communication.
We also commend those States that have devoted resources to the establishment of bilateral co-operative training courses in countries that have identified a need for assistance in improving their capacity to report to treaty bodies.
It is important that States work in co-operation with United Nations agencies, the High Commissioner for Human Rights and the treaty bodies to bring about further improvements to the treaty monitoring system.
We hope that the new century will realise the promise of the Universal Declaration of Human Rights and that we will see a world in which human rights are not only universally recognised, but universally respected. The more efficient and effective functioning of the treaty bodies would be an important contribution to the realisation of this hope.
On 30 June 1999, the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Report ‘Improving But … Australia’s Regional Dialogue on Human Rights’ was tabled in the Senate by the Deputy President, Senator Paul Calvert. The following is an extract of the Response (Senate, Debates, 30 June 1999, p 6917):
Recommendation 17The Australian Government review the procedures in place for complying with reporting obligations under international treaties and take steps to ensure that those obligations are met in as timely and complete a manner as possible.
While fully up to date with its reporting obligations under most human rights (and ILO) treaties, there have been delays in preparing some reports in recent years. The Government is working towards meeting dead-lines in the future, but in doing so it does not want to compromise the high standards it adopts with respect to the preparation of reports. This involves extensive consultations with State and Territory governments as well as discussions with NGOs and other relevant interest groups.
Many other countries have experienced difficulties in meeting reporting deadlines.
Indeed the UN has recognised that treaty-reporting obligations place burdens not only on parties to the treaties but also upon the treaty committees, all of which have a considerable backlog of reports to consider. A report on the reform of the treaty body system by the Australian academic (and former Chairman of the Committee on Economic, Social and Cultural Rights) Professor Philip Alston makes several recommendations to render the process more efficient and effective. Australia strongly supports treaty body reform, including reform of the reporting process, and Australian delegations are pursuing this objective in relevant forums.
On 6 April 1999, a statement concerning the question of the violation of human rights and fundamental freedoms in any part of the world was delivered by HE Les Luck, Ambassador and Permanent Representative of Australia to the United Nations in Geneva, to the 55thSession of the Commission on Human Rights. An extract of the statement follows:
Australia values the opportunity to make a formal statement on human rights situations around the world.…
It is not our intention to use Australia’s statement today an opportunity merely to accuse others or to highlight inadequacies. Rather, we draw attention to the human rights situation in some parts of the world, including where they have improved, in the hope that things can get better. Australia is not interested in the language of megaphone diplomacy, and it is in a constructive and encouraging spirit that we offer the following observations.
In conclusion, my delegation wishes to assure the Commission of Australia’s continuing commitment to working constructively with the international community to translate into a practical, living reality, the universal human rights principles on which we have all agreed.
On 10 November 1999, a statement addressing human rights questions was delivered by the Australian Ambassador and Permanent Representative to the United Nations in New York, HE Penny Wensley, to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of the statement follows:
When looking back over the past year it is tempting to feel a degree of pessimism about human beings’ continuing capacity to violate the human rights of others, despite the efforts of countless individuals, organisations, governments and of the United Nations itself. Grave human rights violations have prompted an international response in both Kosovo and East Timor during the course of the year. Elsewhere, unacceptable levels of abuses continue to be reported. There are times when we wonder what all this says about how far we have really come in the fifty years since the adoption of the Universal Declaration of Human Rights.However, there are positive signals that the international community is becoming increasingly active in the protection of human rights, particularly where it involves state action beyond national borders.
The Secretary General has articulated this in his vision of a world where the perpetrators of gross violations of human rights are no longer sheltered behind national borders.
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Australia is encouraged by moves in … parts of our region, and elsewhere, to adhere to the standards set down in international human rights instruments. We should not be too disheartened by the uneven pace of progress. We know that governments must often exercise great courage in introducing changes, and that to do so can put their own survival at risk. We also know that every country carries its burdens of history and the legacy of actions for which people long dead are responsible.
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The United Nations and the various parts of its human rights system can take pride in the contribution they have made to translating into a closer reality the hopes and aspirations of human beings everywhere to live freely and with dignity. Australia is committed to working where we can to make the UN human rights system as effective as it needs to be to fulfil its duty to achieve that reality.
On 6 April 1999, the following comments were made in the course of a statement delivered to the 55th Session of the Commission on Human Rights by the Australian Ambassador and Permanent Representative to the United Nations in Geneva, HE Les Luck:
Australia remains concerned about the human rights situation throughout Afghanistan. The strict social policies imposed by the Taliban impinge most acutely on the rights of women and girls: we are particularly disturbed at the limited or non-existent level of access women and girls have to health care and facilities. Australia welcomes the return of UN personnel to Afghanistan and urges all Afghan factions to respect universal human rights norms, and to support the UN in delivering vital humanitarian assistance to the Afghan people.
On 10 November 1999, the following comments were made by HE Penny Wensley in a statement delivered to the Third Committee of the 54th Session of the United Nations General Assembly:
The continued fighting in Afghanistan is causing untold suffering for the increasing number of displaced people. Australia deplores the intolerable human rights situation of women and girls in Afghanistan as a result of the Taliban’s strict social policies. We appeal to all Afghan factions to respect universal human rights standards, and in particular, to ensure that the human rights of women and girls are not violated. We also urge all parties to abide by the principles of international law and allow free and safe access for all UN personnel to deliver vitally needed humanitarian aid.
On 6 April 1999, the following comments concerning human rights in Algeria were made in the course of a statement delivered by HE Les Luck to the 55th Session of the Commission on Human Rights:
The serious human rights situation in Algeria remains of great concern. Australia condemns the continuing violent campaign of insurgency and deplores the loss of civilian lives. We urge the Algerian Government to heed the concerns of the international community and act within a framework of the rule of law and respect for the fundamental rights of its people.
On 6 April 1999, HE Les Luck delivered a statement to the 55th Session of the Commission on Human Rights. An extract of the statement concerning Burma follows:
Australia remains very concerned about human rights conditions in Burma, as well as the deteriorating political and economic situation. While the release earlier this year of six political prisoners is a positive, albeit modest development, the on-going repression of the NLD and the continuing detention of opposition members and others for merely expressing their political opinions is unacceptable. We call on the Burmese Government to release them, and all political prisoners, unconditionally and immediately. We ask the Government to enter into substantive discussions as soon as possible with the NLD and the ethnic minorities, leading to national reconciliation and an improvement in human rights.
On 10 November 1999, the following comments concerning Burma were made in the course of a statement delivered by the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly:
The serious human rights situation in Burma is close to the hearts of many Australians. We hope the recent welcome visit by the Secretary-General’s Special Representative offers the possibility for progress in the human rights and political situation. In this regard, we acknowledge the Government’s efforts to date to facilitate access for the International Committee of the Red Cross in registering prisoners. We also urge the Government to enter into genuine consultations on political reform as soon as possible, which must include the NLD and representatives of the ethnic minorities. Australia is keen to do what we can to encourage an improvement in human rights in Burma and believes it is important to engage the Government to that end. Eventually, we hope to see the development of an independent human rights institution, established according to internationally accepted standards. The visit to Burma by the Australian Human Rights Commissioner, Mr Chris Sidoti, was designed to explore the prospects for that possible development.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in the course of a speech delivered to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
Within our own region the death of Pol Pot last year stands as a stark reminder of the need to bring to account those responsible for the most inhumane of crimes. The crimes he and his regime committed have gone unpunished. Why? Because the international community had neither the will nor importantly the mechanism to carry out such a task.A UN Special Experts Group mandated by the Secretary General is currently investigating options for establishing an internationally-recognised legal process for trying members of the Khmer Rouge. Australia has consistently supported international efforts to bring the Khmer Rouge leadership to account under a process recognised under international law and the Report will therefore be examined carefully once it is available.
On 6 April 1999, the following comments concerning human rights in Cambodia were made in the course of a statement by HE Les Luck to the 55th Session of the Commission on Human Rights:
In Cambodia, progress in the area of human rights is being impeded by a pervasive culture of impunity: the treatment of surviving senior members of the Khmer Rouge is a case in point. Australia welcomes the recommendation of the group of experts for an ad hoc international tribunal. We recognise the need for the Cambodian Government’s full support for any mechanism directed at bringing Khmer Rouge leaders to trial. It is also critical for the Government to work to strengthen and respect the rule of law. Australia will continue to encourage improvements in the human rights situation, including through our aid program.
On 10 November 1999, HE Penny Wensley, Ambassador and Permanent Representative of Australia to the United Nations in New York, made the following comments in the course of a statement to the Third Committee of the 54th Session of the United Nations General Assembly:
In our own region, Australia welcomes Cambodia’s recent agreement to extend the mandate of the Cambodia Office of the High Commissioner for Human Rights until March 2002, and looks forward to continued cooperation between the Government and the Office in all aspects of its work. We welcome too the recent amendment to the Law on Civil Servants, signalling a commitment to eradicate the problem of impunity for human rights abusers. Australia urges the Cambodian Government to ensure that all those responsible for abuses, both past and present, are brought swiftly to justice, and to take all measures possible to strengthen Cambodia’s justice system.Australia encourages Cambodia to place a high priority on resolving in a just manner, the increasing problem of land confiscations in a just manner, and on reforming the Land Law and land title system so that the basic rights of all Cambodians are protected.
On 6 April 1999, the following comments concerning human rights in China were made in the course of a statement delivered by HE Les Luck to the 55th Session of the Commission on Human Rights:
The Australian Government acknowledges the progress made over the last 20 years or so by China in the realisation of economic and social rights, in the democratisation of village structures, and in the implementation of legislation to hasten the development of due process and rule by law. We urge China to ratify and incorporate into domestic law both the international human rights covenants it has signed, with a minimum of reservations, and to give effect in practice to the principles which the covenants enshrine. We would also encourage China to continue and extend its cooperation with the human rights mechanisms of this Commission.Australia values the bilateral dialogue which we share with China on human rights. Last December we expressed concern to the Chinese Government over the arrest, trial and sentencing of members of the China Democracy Party. We reiterate those concerns here, and intend to pursue them in our dialogue — along with other issues relating to freedom of speech, assembly and religion.
On 5 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made a speech concerning effective action on human rights to the Australian Institute of International Affairs. An extract concerning human rights in China follows:
This theme of developing robust national institutions has been continued in our bilateral human rights dialogue with China. The third in our annual series of meetings will be held in Beijing later this month, and will build on the detailed and comprehensive agenda for action our two countries have already developed. The meetings have involved broad-based participation by experts from a range of relevant agencies, and have allowed us to register Australian views on a number of matters, including Tibet, the death penalty, and other human rights issues. Australia has also committed funds for the development of activities in China that will focus on institution building, policy development, research and training, up to an amount of $1.1 million this financial year.Australia remains concerned about human rights developments in China. The value of our dialogue is that these concerns can be registered effectively. We talk, they listen — and vice versa. Of course, there will be no overnight transformation of the human rights situation in China, but it is unrealistic to expect one. But I feel strongly that our dialogue has made a difference, and that it is more beneficial to have China engaged, and moving forward, than to have them put up the shutters and make no progress at all. Is it better to have all the energy of China’s bureaucracy directed at defeating an annual draft resolution in the Commission for Human Rights, or have them working — as they now are — on the ratification and implementation of UN human rights instruments?
On 1 September 1999, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question without notice from Senator Brian Harradine concerning human rights in China. An extract of the Senator’s response follows (Senate, Debates, 1 September 1999, p 8124):
…the Australian government has been putting more emphasis on what might be described as the internal channels of communication in recent times, in an effort to influence human rights changes for the better in China.… I think it can be fairly argued that encouraging the opening up of the political society—and particularly the economic society, and the interchange that comes with that—with countries that are liberal democracies does in fact in time bring about change in the state in which we are seeking to influence those outcomes.
We have in particular … sought to put emphasis on the formal human rights dialogue that was established some two years ago. It has just had its third annual round in China. It was expanded this year to include the chairman of the Australian parliamentary group, the member for Aston, Mr Peter Nugent; and also the President of HREOC, Professor Alice Tay.
The delegation met in China with officials from the foreign ministry and other relevant departments both in Beijing and in the regional centres of Xining. They made clear our concerns on various aspects of the human rights situation in China, including treatment of dissidents, Tibet, religious freedoms, matters relating to women and children and China’s adherence to international human rights covenants … there were no no-go areas in the discussions. But they also focused on areas where progress has been made and where Australia’s experience is relevant …
It is appropriate for the government to reflect core Australian values in our bilateral relationship. We believe that the dialogue enables us to speak frankly about our concerns and, we think, to make a difference on the ground. We recognise that this is a long-term process, the results of which will be incremental but nevertheless real.
There will be further opportunities with high level visits being made to China in the near future. The background to those visits is that we remain convinced that the best way to promote human rights in China is to engage the Chinese government in dialogue on these issues. With that background, we will take opportunities as they present. We do not see it as an either/or, whether to use internal sources or public. We will seek to get the best results from our efforts.
On 10 November 1999, a statement was delivered by the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of that statement follows:
As the People’s Republic of China celebrates its fiftieth anniversary, we see welcome signs of movement towards greater transparency and accountability in its administrative and legal system, as well as continuing efforts to address economic rights through poverty alleviation. Australia strongly supports China’s efforts to improve its legal and judicial system, including through practical technical assistance programs. As we have noted in our annual human rights dialogue with China, we would like to see this progress continued and also reflected in the greater protection of individual freedoms, so that practices like arbitrary detentions and torture become things of the past. We would also like to see an end to the resort to state security and public order legislation to curtail freedoms of association, thought, religion and assembly. Australia takes a particular interest in the protection of the cultural and religious freedoms of minority groups in China, and urges China to observe the principles of the International Covenant on Economic, Social and Cultural Rights, to which it has now given its commitment. We hope there will be early progress towards China’s ratification of this covenant and the International Covenant on Civil and Political Rights.
On 10 November 1999, a statement was delivered by the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of that statement follows:
Australia remains concerned by the restrictions placed on political parties, media, non-government organisations and ordinary citizens in Cuba and urges the government to allow these groups to function freely. We also call upon the Cuban government to conform with international standards related to the arbitrary detention of political activists.
On 6 April 1999, the following comments concerning Cyprus were made in the course of a statement made by HE Les Luck to the 55th Session of the Commission on Human Rights:
We very much regret the current political stalemate on Cyprus and urge all the parties to show flexibility. Australia has appointed a special envoy for Cyprus to identify ways of assisting the search for a settlement. We continue to support the efforts of the Secretary-General, and others, to find a lasting solution to the Cyprus question. We welcome the positive atmosphere which has so far accompanied the efforts of the United Nations Secretary-General’s deputy representative, Dame Anne Hercus.
On 6 April 1999, the following comments were made in the course of a speech delivered by HE Les Luck to the 55th Session of the Commission on Human Rights:
The situation in East Timor is particularly delicately poised. Australia’s overriding concern is to see a smooth and peaceful transition to a new status for East Timor — whether autonomy or independence. Reconciliation is vitally important, as are efforts to disarm civil militias. We encourage all parties to look forward rather than back, and urge the Indonesian authorities to consolidate their efforts to respect human rights and to take measures to build confidence on the ground.
On 24 September 1999, a statement was delivered on behalf of the Australian Delegation to the Special Session of the Commission on Human Rights on East Timor. The following is an extract of the statement:
The Australian government is appalled by the violence and suffering in East Timor and seized of the urgency of the need for it to stop. The improvement of the security situation there through INTERFET and the provision of humanitarian assistance to those in need remain the most immediate priorities for the international community in relation to East Timor. These will ensure that the process set in place by the Tripartite Agreement can be seen through to its completion.However, Security Council resolution 1264 which authorised the establishment and deployment of INTERFET also makes clear the international community’s condemnation of all acts of violence in East Timor<. In its resolution the Security Council expresses its concern at reports that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed, stresses that persons committing such violations bear individual responsibility, and demands that they be brought to justice.
The High Commissioner for Human Rights Mrs Robinson, following her recent visit to Indonesia, concludes in her report that there is overwhelming evidence of systematic gross violations of human rights in East Timor and strongly condemns those responsible. The High Commissioner also records her urging of the Indonesian authorities to cooperate in the establishment of an International Commission of Inquiry into those violations so that those responsible can be brought to justice. She makes clear her intention to remain in contact with Indonesia on the issue and her readiness, if needed, to take the initiative in launching such an international commission. Australia acknowledges in this context the recent announcement by Indonesia of a fact-finding commission for post-ballot human rights violations in East Timor.
It is the Australian Government’s view that allegations of human rights violations in East Timor should be thoroughly investigated through a coordinated, United Nations wide response based on security resolution 1264. It is in that context we view the proposals of the High Commissioner and see the work of this special session of the Commission on Human Rights. Australia is ready to cooperate as fully as possible with any such investigation and to do whatever is appropriate to ensure that those who are responsible for any violations of human rights in East Timor are held to account for them.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered Australia’s statement to the 54th Session of the United Nations General Assembly. The following is an extract of that statement:
Security Council 1264 called on those responsible for violence in East Timor to be brought to justice. Australia supports efforts by the Indonesian Government and the UN to bring to account those responsible for the grievous acts of criminal violence visited upon the East Timorese people, and will offer all appropriate assistance to the High Commissioner in this regard.
On 10 November 1999, the following comment was made in the course of a statement delivered by HE Penny Wensley to the Third Committee of the 54th United Nations General Assembly:
Australia’s response to the events in East Timor is now a matter of record. The Australian Government remains deeply committed to assisting in the protection of the basic rights of the East Timorese people.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning East Timor in the course of a speech delivered to the Griffith Asia Pacific Council:
Australia also supports full investigation of all allegations of human rights abuses in East Timor. At present, both the Indonesian human rights organisation, Komnas Ham, and the United Nations have commenced preliminary investigations. The established procedures for investigating the alleged abuses must take their course.
On 6 April 1999, the following comments concerning human rights in the Great Lakes Region were made in the course of a statement by HE Les Luck to the 55th Session of the Commission on Human Rights:
Australia deplores the unstable political situation in the Great Lakes Region which continues to contribute to widespread human rights violations. We urge countries in the region to put an end to the fighting and seek peaceful solutions to the underlying causes.On 10 November 1999, HE Penny Wensley made the following comments in the course of a statement delivered to the Third Committee of the 54th United Nations General Assembly:
The refugee and human rights situation in the Great Lakes region remains of concern to Australia. We welcomed the signing by all parties of the 10th July Lusaka Peace Agreement and urge all signatories to implement the provisions of the agreement and work towards a long-term solution which is acceptable to all.
On 6 April 1999, HE Les Luck, Ambassador and Permanent Representative of Australia to the United Nations in Geneva, made the following comments concerning Indonesia in the course of a statement to the 55th Session of the Commission on Human Rights:
Indonesia has reached a pivotal point in its history and the picture it presents today is a complex mix. On the positive side, we see a genuine response to the people’s desire to participate in the political process. Civil society is a great deal less fettered, structural reforms are underway, and the military leadership is questioning its role in a more democratic society.At the same time we have been disturbed that social tensions are erupting in violent incidents in many parts of the country. It is Australia’s strong hope that the gains in the area of civil and political rights will be consolidated, and not overshadowed by localised violence. Indonesian stability and national well-being can be secured only by all sectors of society putting the protection of human rights first. We are providing strong support for Indonesia’s own efforts to meet the numerous challenges confronting it, and we urge other countries to do likewise.
On 21 April 1999, the Ambassador and Permanent Representative to the United Nations in Geneva, HE Les Luck delivered a statement addressing national institutions to the 55th Session of the Commission on Human Rights. An extract of the statement concerning Indonesia follows:
I wish to make special mention of the commendable efforts being made by the Indonesian human rights commission, Komnas Ham, at this difficult time in Indonesia’s history. Komnas Ham continues to make a critical contribution to Indonesia’s transition to a more participatory, open society. We are encouraged that Komnas Ham is to be put on a firmer legal basis, with a new law being introduced into the Indonesian Parliament.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a statement to the 54th United Nations General Assembly. An extract of the statement follows:
Australia stood by the Indonesian people as they began their transition to democracy, and we will continue to do so in the years ahead.…
With the establishment by the Security Council on 11 June of the United Nations Mission in East Timor, or UNAMET, the practical work of holding the popular consultation got under way.
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The fact that more than 450,000 people were able to register to vote, and that 98.6 per cent of them actually did so…is…a tribute to the effectiveness of UNAMET and its staff, and a fine example of how effective the United Nations can be in situations of conflict and transition.
On 10 November 1999, HE Penny Wensley, Ambassador and Permanent Representative of Australia to the United Nations in New York, delivered a statement to the Third Committee of the 54th United Nations General Assembly. The following is an extract of the statement:
… it should not be forgotten that it was the processes of change in Indonesia itself which allowed the East Timorese to determine their own future. Indonesia deserves credit and recognition for the initiatives it has taken, particularly in difficult economic circumstances, to introduce a more open, participative and accountable social and political system. Australia has welcomed domestic developments in Indonesia with respect to the broadening of democratic freedoms and institutions, attested to by the holding of general elections in June this year, and the presidential election in October. The historic vote in the national parliament on 20 October revoking the incorporation of East Timor into Indonesia opens a new chapter for Indonesia which we hope will also enable it to play a larger role in promoting the defence of human rights internally and in the region. Australia warmly welcomes the commitment to uphold human rights made by the new President of Indonesia in his inauguration speech, and his establishment of a separate human rights ministry.
On 6 April 1999, a statement was delivered to the 55th Session of the High Commission on Human Rights by HE Les Luck. An extract of the statement follows:
Australia welcomes the atmosphere of increased debate on Governance and human rights issues in Iran over the last 12 months. The Government’s stated commitment to promoting respect for the rule of law and protecting rights and freedoms provided for in the Iranian Constitution is also encouraging. However, human rights concerns remain, such as the treatment of religious minorities, in particular members of the Baha’I faith. We urge the Iranian Government to receive the UN’s special representative to carry the dialogue forward.
On 10 November 1999, a statement was delivered by the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of that statement concerning Iran follows:
Australia continues to be encouraged by President Khatami’s emphasis on the promotion of the rule of law and the protection of rights and freedoms provided for in the Iranian Constitution. However, human rights issues remain of concern, especially in relation to due process and the treatment of religious minorities, most notably the Baha’is. In particular, we urge the Iranian authorities to ensure that religious minorities are accorded the full protection of law under the Iranian Constitution.
On 6 April 1999, the Australian Ambassador and Permanent Representative to the United Nations in Geneva, HE Les Luck, made the following comments in the course of a statement to the 55th Session of the Commission on Human Rights:
The humanitarian crisis in Kosovo is a potent reminder of what can happen when governments violate instead of protect the human rights of their citizens. Clearly the situation has rapidly deteriorated in recent days. Australia is deeply disturbed by the massive displacement of ethnic Albanians and reports of possible executions by Serbian forces. President Milosevic must bear direct responsibility for the crisis and Australia calls on him to take the necessary steps to arrest it.
On 6 April 1999, the Ambassador and Permanent Representative of Australia to the United Nations in Geneva, HE Les Luck, made the following comments in the course of a statement to the 55th Session of the Commission on Human Rights:
The Australian Government welcomes the successful conclusion of the election process that returns a civilian government to Nigeria. We have been encouraged by the release of detainees and the steps taken by the Nigerian military government to restore democracy, the rule of law and respect for human rights. The special rapporteur has highlighted the important role the Nigerian Human Rights Commission plays in the promotion and protection of human rights.
On 6 April 1999, at the 55th Session of the Commission on Human Rights, HE Les Luck, made the following comments concerning human rights in Papua New Guinea in the course of a statement addressing the question of the violation of human rights and fundamental freedoms in any part of the world:
In Papua New Guinea, after 10 years of bloodshed, Australia warmly welcomes the ceasefire now in place on Bougainville. We continue to support strongly the process of reconciliation and respect for human rights through our aid program and involvement in the multinational peace monitoring force. We urge the parties to the conflict to pursue the challenging tasks ahead of them with determination and goodwill.
On 10 November 1999, HE Penny Wensley delivered a statement to the Third Committee of the 54th United Nations General Assembly. An extract of that statement concerning Papua New Guinea follows:
Australia welcomes the priority given by the government in Papua New Guinea to reaching a negotiated settlement on Bougainville. We commend all parties for observing a ceasefire since May 1998 and encourage them to continue their work towards a lasting peace. Australia continues to give strong support to the process through our contribution to the International Peace Monitoring Group and our extensive aid program.
On 6 April 1999, the Ambassador and Permanent Representative of Australia to the United Nations in Geneva, HE Les Luck, made the following comments in the course of a statement to the 55th Session of the Commission on Human Rights:
Australia remains deeply concerned by the continuing ethnic conflict in Sri Lanka. However, we acknowledge the improvements effected, including the successful prosecution of members of the security forces for human rights abuses, and the decline in the number of disappearances. We encourage the Sri Lankan Government to continue efforts to ensure strict observance of human rights. Australia deplores and condemns all acts of terrorism and is greatly concerned by the continuing and brutal killing of innocent civilians by the Liberation Tigers of Tamil Eelam (LTTE). We are also disturbed by the LTTE’s use of child soldiers. The Australian Government urges all parties to the conflict to engage in negotiations for a just and permanent political settlement.
On 10 November 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of that statement follows:
We also continue to be concerned at the humanitarian and human rights situation in Sudan. We have been encouraged by the Sudanese Government’s decision to extend the ceasefire in Southern Sudan and urge the Government to cooperate with international agencies, humanitarian organisations and the UN Special Rapporteur in order to address the needs of the Sudanese people suffering from the prolonged conflict there.
On 11 August 1999, a Notice of Intention to Terminate the Agreement on Social Security between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland, done at London on 1 October 1990, as amended on 22 April 1992 was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
Australia proposes to terminate the 1990 Agreement on Social Security with the United Kingdom of Great Britain and Northern Ireland (UK), as amended in 1992 (the Agreement).…
The Agreement relates to reciprocal social security benefits arrangements. It replaced a succession of treaties that commenced with the head Agreement signed in 1953.
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The Agreement, like its predecessors, is an old-style ‘host country’ agreement.
The principle underlying the ‘host country’ agreement is that the country where a person resides permanently takes responsibility for social security cover for that person. As a ‘host country’ agreement, the Agreement with the UK does not contain provisions for former Australians residing in the UK to claim Australian benefits.
The Agreement is unlike Australia’s more modern ‘shared responsibility’ agreements which recognise that each country will contribute its reasonable share of social security coverage for the individual concerned. Australia currently is party to nine shared responsibility agreements.
The Agreement does not provide for indexation. Australia indexes the benefits it pays to former Australian residents eligible for benefits under Australian legislation residing overseas, including those in the UK. This is achieved through Australia’s domestic legislation.
The UK does not index for the cost of living the pensions it pays to pensioners that are Australian residents. This imposes an unfair burden on the Australian social security system. UK pensioners in Australia are required to rely increasingly on Australian income support because the UK’s indexation policy means that the value of their UK pensions reduces over time. Over 140,000 UK pension recipients also get Australian pensions, including approximately 2,500 who rely on the Agreement to access Australian pensions. Supplementation for these pensions, which includes pensions paid under the Agreement, is currently estimated to cost Australia in the vicinity of $100 million a year.
The UK does index pensions paid to its former residents in several other countries overseas. This is facilitated through bilateral or multilateral agreements. The UK has agreements with indexation provisions with several countries, for example, the United States of America, Turkey, the Philippines and member states of the European Union. However, it continues to cite the absence of indexation obligations under the Agreement as a reason for continuing its current policy towards its Australian resident pension recipients.
While there are ways to update or resolve anomalies in a treaty, for example by amendment, this has not been possible to date in this case. The Government would have preferred to negotiate an amendment to the current Agreement to provide for indexation. Successive Australian Governments have endeavoured to persuade the UK to change its policy on this matter and amend the Agreement, without success.
Following these lengthy unsuccessful attempts to amend the Agreement the Government has now decided that it should be terminated.
Such termination may encourage the negotiation at a later date of a more appropriate replacement agreement that provides for the indexation of pensions paid in Australia.
Termination of the Agreement will not adversely affect those recipients who at the date of termination are in receipt of a benefit under the Agreement, or have lodged claims and would be entitled to receive payment of a benefit under the Agreement. Under Article 26(2) the Agreement will continue to enable the above-mentioned recipients to access benefits.
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Upon termination of the Agreement, in accordance with Article 26(1), Australia must continue its obligations under the Agreement, under Article 26(2)(a) and (b), to all persons who are in receipt of benefits at the date of termination or who have lodged claims for benefits prior to that date and would be entitled to receive those benefits. Otherwise, Australia’s obligations under the agreement cease at the date of termination.
On 30 June 1999, the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Report ‘Improving But … Australia’s Regional Dialogue on Human Rights’ was tabled in the Senate by the Deputy President, Senator Paul Calvert. The following is an extract of the Response (Senate, Debates, 30 June 1999, p 6917):
Australia’s view is that the ILO is the most appropriate forum for discussion of labour issues, and that the ILO’s mandate and authority should not be diluted or duplicated in other forums. The ILO is tripartite in structure (with employer and worker representatives having equal representation and voting rights to government representatives), and thus provides a formal role in an international forum for workers.The application of core ILO standards is already being comprehensively supervised by the ILO (the ILO actively promotes ratification of its relevant Conventions, and members are asked to report on their implementation). Employer and worker organisations are invited to contribute to this reporting process, which was enshrined by the adoption of a Declaration on Fundamental Principles and Rights at Work and its follow-up in June 1998 by the ILO. The Government strongly supported the adoption of the Declaration, and played an important role in ensuring that countries in the Asian region were able to support the proposed text.
On 21 June 1999, in the House of Representatives, the Minister for Employment, Workplace Relations and Small Business, Mr Peter Reith, answered a question on notice from Mr Martin Ferguson. Mr Ferguson asked the Minister if the Australian Government voted in support of the International Labour Organisation’s Declaration on Fundamental Rights and Principles at Work at the 1998 ILO Conference and what action the Australian Government had taken to ensure compliance with the Declaration (House of Representatives, Debates, 21 June 1999, p 6958):
The Australian Government voted in favour of the ILO adopting the Declaration on Fundamental Principles and Rights at Work at the eighty-sixth session of the International Labour Conference, Geneva, in June 1998.The purpose of the Declaration is to reaffirm the commitment of ILO members to the fundamental principles of the Organisation regardless of whether or not they have ratified the corresponding Conventions. The Annex to the Declaration provides that those ILO Member States that have not ratified relevant Conventions will be required to submit an annual report on any changes which may have taken place in their law and practice. The purpose of the annual reports is to enable the ILO to assess overall trends in member States and identify gaps in technical assistance and cooperation.
Australia has ratified six of the seven Conventions corresponding with the principles of the Declaration and already reports to the ILO on their implementation. As Australia has not ratified Convention No 138, Minimum Age, 1973, the Government will be reporting to the ILO in November 1999 on Australia’s implementation of the principles associated with the abolition of child labour. Consultations with the State and Territory governments will commence shortly with a view to developing the report.
Australia has not ratified Convention No.138 because Australian law does not comply with a number of its express requirements, and there is insufficient flexibility in the Convention to allow ratification to be considered. As at February 1999, only 72 of 174 ILO member States had ratified Convention No.138. In view of the poor rate of acceptance of this Convention, a new Convention and Recommendation aimed at eliminating the worst forms of child labour will be considered for adoption at the 1999 International Labour Conference.
On 7 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release outlining changes in Australia’s overseas representation. An extract of the release follows (FA89):
The Government has decided to make some adjustments to its network of overseas posts to reflect better key Australian interests abroad. The changes will involve establishing a new embassy in Denmark, the expansion of the post in Portugal to a full embassy, an enhanced presence in Los Angeles and the closure of our missions in Syria and Kazakhstan with a move to non-resident accreditation in those countries.I believe the new arrangements will better enable the Government to continue to advance Australia’s national interests abroad and to respond quickly to shifts in trade patterns.
Since 1997 Australia has faced huge political and economic challenges in the region and further afield. The Government has responded with active diplomacy and by encouraging our exporters to explore new markets, especially in Europe and North America.
At the same time Australia has remained a close business and regional partner of countries in the Asia Pacific region.
The new or enlarged posts are in regions or countries where Australia’s interests can be pursued more effectively through strengthening our diplomatic and consular representation.
On 7 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer issued a media release which contained the following comments concerning the re-opening of an Australian Embassy in Denmark (FA89):
Re-opening our embassy in Copenhagen will boost both our bilateral interests and our ability to represent Australia’s concerns within the EU and Scandinavia. Australian trade interests in Denmark are growing and Denmark is an active and influential participant in the EU.
On 27 May 1999, Mr Alexander Downer, the Minister for Foreign Affairs, issued a media release concerning the establishment of a consulate in East Timor. Extracts of that release follow (FA 55):
I am pleased to announce that the Indonesian Foreign Minister, Mr Alatas, has confirmed to me Indonesia’s agreement to the opening of the Australian Consulate in Dili. This follows in principle agreement on the opening of the Consulate between the Prime Minister, Mr Howard, and President Habibie, in Bali on 27 April.The first Australian consular officials will travel to Dili next week.
The establishment of our Consulate in Dili, the first representation of its kind in the Province, reflects our close engagement with Indonesia, a key regional partner. The Consulate will allow us to service the consular needs of the increasing number of Australians in East Timor. In addition, it will facilitate Australia’s considerable support to the United Nations Assistance Mission in East Timor.
On 3 June 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Ms Julie Bishop concerning the opening of an Australian Consulate in East Timor. An extract of the Minister’s response follows (House of Representatives, Debates, 3 June 1999, p 5995):
I am glad to be able to inform the House that today three consular officers from my department have arrived in East Timor and will begin the process of opening and operating our consulate in East Timor. The consul himself will arrive in Dili almost certainly during next week.I think this is an important step. We are the only country in the world that has a consulate in East Timor. It gives the Australian government the opportunity principally to ensure that we are able to fulfil our consular functions for the large number of Australians who are and who soon will be in East Timor.
On 8 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release. The following is an extract from that release (FA100):
Due to the deteriorating security and communications situation in East Timor, Australian representation will be reduced but maintained.The Australian consul and six staff based in Dili have today left East Timor temporarilly to return to Australia. The decision to evacuate the staff follows communication difficulties and a power failure at the consulate building in Dili.
These arrangements have been agreed with the United Nations Secretary-General, Mr Kofi Annan.
Three Australian officials who have been at the Consulate will remain in Dili based at the UNAMET compound to assist UNAMET officials with any further evacuations deemed necessary and to provide basic consular services to any Australians who have chosen to remain in Dili.
On 7 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a media release (FA89):
The expansion of our liaison office in Lisbon into an embassy will help Australia to remain closely engaged with Portugal, particularly on developments in East Timor. The establishment of a full mission will also enable closer dialogue with Portugal on EU issues and provide better opportunities to increase bilateral trade and investment.
On 29 September 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, was asked a question on notice concerning the closure of the Australian Embassy in Syria by Mrs Janice Crosio. Extracts of the Minister’s response follow (House of Representatives, Debates, 29 September 1999, p 11026):
The decision to close the embassy in Damascus was the result of a wider Government review of where it could best utilise the resources at its disposal in Australia’s overall national interest.The Syrian Foreign Minister, Mr Farouk Al-Sharaa, wrote to me seeking a review of the Government’s decision. In response I noted that the decision would stand and had been based solely on resource considerations. I emphasised that the decision in no way reflected the value Australia placed on maintaining a sound and mutually productive relationship with Syria, that we remained committed to that relationship and that we would be concluding arrangements as soon as possible for effective diplomatic accreditation to Syria from one of our other regional missions.
…
As I indicated in my recent letter to the Syrian Foreign Minister, Australia certainly continues to value its relationship with Syria and looks forward to achieving a deeper dialogue on a range of political and economic issues. Our decision to close Damascus is in no way a reflection of the value Australia places on maintaining a sound and mutually productive relationship with Syria. The Government is confident that Australia’s interests in Syria can be pursued effectively with non-resident accreditation.
On 7 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments regarding the expansion of the Consulate-General in Los Angeles in a media release (FA89):
An enhanced Australian presence in Los Angeles will lift Australia’s capacity to engage California — the biggest and most Asia-Pacific oriented state in the United States. A large proportion of American trade and investment comes from California. It is a major market for Australian firms, especially SMEs in IT [Information Technology] and high technology. California is also very influential politically, with the nation’s largest congressional representation and is the headquarters of major business enterprises.
On 8 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the signature of the Australia-China Consular Agreement. An extract of the media release follows (FA99):
I am pleased to announce that I have today signed on Australia’s behalf the new Consular Agreement with the People’s Republic of China.…
The Agreement marks an important step forward in our relations with China, as more and more Australians are travelling, studying and doing business in China. The Agreement will provide Australians with greater certainty about what consular services are available from their representatives in China and the extent of those services.
Under the Agreement there are guarantees for notification of the arrest and detention of Australian citizens and timeframes established for access to them. If Chinese officials detain an Australian national, they must now notify relevant Australian consular officials of the arrest within three days and a consular visit to the detainee must be permitted within two days thereafter. Monthly consular visits are also guaranteed. Reasons must also be provided for the detention of an Australian national and the details of any charges. Consular representation at trials is also guaranteed. The Agreement also provides for annual consultations to review the consular relationship including any issue of concern to either party, as well as ad hoc consultation on difficult consular cases as required from time to time.
On 12 October 1999, the Agreement on Consular Relations between Australia and the People's Republic of China, done at Canberra on 8 September 1999, was tabled in both Houses of Parliament.The following is an extract of the accompanying National Interest Analysis:
The consular relationship between Australia and the People’s Republic of China has, to date, been governed by the provisions of the multilateral Vienna Convention on Consular Relations (VCCR) of 24 April 1963 to which both Australia and China are Parties.The Agreement confirms and amplifies the VCCR, but also expands its provisions in some respects. It establishes a framework for consular relations between Australia and China and follows other countries, such as the United States and Canada, which already have bilateral consular agreements with China.
The Australian Government regards consular access to its citizens arrested or detained overseas as vital to the discharge of its consular rights and duties. The Australian Government has, from time to time, encountered difficulties in securing consular access to arrested or detained Australian citizens in China.
Under current arrangements, which rely on the provisions of the VCCR, the time limit for notification of the arrest or detention of citizens of each country is not explicitly defined. By contrast, the Agreement establishes such time limits. For example, if Chinese officials detain or arrest an Australian national, they must notify relevant Australian consular officials of the arrest within three days and a consular visit to the detainee must be permitted within two days thereafter.
The provisions of the VCCR are not specific in detailing the regularity of consular visits to detained nationals. The Agreement guarantees monthly consular visits to citizens of each country detained or arrested in the other country. In addition, both countries will be obliged to provide reasons for the detention of a national of the other and the details of any charges. Consular representation at trials is also guaranteed.
The Australian Government has encountered particular difficulties in securing consular access to arrested or detained Australian citizens who also possess Chinese citizenship. This is because China’s nationality law does not recognise dual (or plural) nationality. The Agreement reaffirms that an Australian citizen who enters China on an Australian passport is entitled to consular access and assistance from Australian consular posts.
The Agreement allows for annual consultations on the consular relationship including any issues of concern to either Party, as well as consultation on individual difficult consular cases as required from time to time. These may involve Australian-Chinese citizens who choose to enter China on Chinese documentation.
On 12 October 1999, the Agreement between the Government of Australia and the Government of the People’s Republic of China concerning the Continuation of the Consular Functions by Australia in the Macau Special Administrative Region of the People’s Republic of China, done at Canberra on 8 September 1999, was tabled in both Houses of Parliament. An extract of the National Interest Analysis follows:
The Agreement will provide for the continuation of consular services to Australians following the resumption by China of the exercise of sovereignty over Macau on 20 December 1999. From this time, Macau will become the Macau Special Administrative Region of the People’s Republic of China (MSAR). Since Australia does not have a resident consular presence in Macau, consular services are provided by the Consulate General in the Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR). The Agreement formalises the continuation of that arrangement from 20 December.Australia concluded a similar consular agreement with China to take into account the handover of Hong Kong from British to Chinese sovereignty on 1 July 1997. China will resume the exercise of its sovereignty of Macau (from Portuguese administration) under the same principles of the policy of ‘one country, two systems’ applied by China to the HKSAR. That is, like the HKSAR the MSAR is to continue to enjoy a ‘high degree of autonomy’ from China for 50 years following the transition. China has requested that in order to demonstrate the consistent application of this policy both regions must be treated equally and, therefore, a consular agreement for the MSAR should also be concluded.
Current information concerning treaties that Australia has signed, ratified or acceded to is available from:
Treaties Secretariat
International Organisations and Legal Division
Department of Foreign Affairs and Trade
Barton ACT 0221
Alternatively, the information is available at www.austlii.edu.au/au/other/dfat
On 24 June 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the Conference on the Role of Parliament in Treaty-Making. An extract of that speech concerning the reform of the treaty-making process in Australia follows:
Reform of the way treaty making is carried out was a key policy commitment that the Coalition took to the 1996 election campaign.In our view, the changing nature of our world necessitated reform. Today, globalisation is the norm, not the exception. An increasing array of issues — trade flows, environmental concerns, international standards of human rights, and even international crime — are becoming the subject of treaty action. This is for the simple reason that such issues are beyond the scope of any one nation to resolve. They require not just national but international responses. As the fundamental instruments of international law, treaties are the means by which countries give binding undertakings to each other and, thereby, the means through which the Australian Government can shape approaches to issues that lie beyond our national borders.
Over time, as their number and scope has grown, treaties have become an increasingly important component of Australia’s own legal development. This growing influence on our domestic legal system, in our view, necessitated that our treaty making procedures be reformed and updated in a way which provided greater accountability to the Australian public.
That is why, upon entering office in March 1996, we moved quickly to implement our election undertakings. Two months into office, my first statement to the House as Minister for Foreign Affairs was to inform the Parliament of the Coalition Government’s treaty reform initiatives.
Attorney-General Daryl Williams and I announced a package of reforms that marked a significant change in the way the Federal Government would disseminate information and conduct itself in the lead-up to concluding and implementing treaties. It was an historic move.
It was also a reform initiative that was long overdue. Responding to concerns expressed by State and Territory governments and across all sectors of the community, the reforms aimed to address the ‘democratic deficit’ in the way treaty making had been carried out in the past to change the fact that the whole process of Federal Government treaty action was both removed and shrouded in mystery.
Openness and transparency were the key elements of the reform package. Consultation was its underlying theme. The reforms sought to create an efficient domestic methodology by which our Parliament, State and Territory Governments and the general public could assess the way proposed international treaties met our own national concerns. Our reform initiatives promoted involvement of these three groups in the treaty making process in the following ways:
Parliament was to play a much more prominent role in scrutinising intended treaty action. Debate over enabling legislation was not enough — Parliament also needed to be involved at the crucial earlier stages of the process.
State and Territory governments were to be effectively involved in the treaty making process. Australia’s treaty making process was to reflect the federal nature of our system of government and the reality that, in many cases, it was more efficient and appropriate for the states and territories to implement Australian obligations under international agreements.
Finally, and perhaps most importantly, the public was to have greater involvement in the process. There should be scope for every Australian individual and interest group with a concern about treaty issues to have the opportunity to make that concern known directly.
On 28 June 1999, in the House of Representatives, the Attorney-General, Mr Daryl Williams, answered a question on notice from Mr Daryl Melham concerning the implementation of the Genocide Convention Agreements. An extract of the Minister’s response follows (House of Representatives, Debates, 28 June 1999, p 7660):
…[T]he enactment of Commonwealth legislation to implement the Convention on the Prevention and Punishment of the Crime of Genocide was not the highest priority issue for the Government at that time.That remains the case, and no further progress has been made toward the enactment of such legislation.
I would reiterate that the Government has been advised that the common law and criminal codes of the States and Territories provide adequate punishment for a number of acts prohibited by the Convention.
On 30 June 1999, the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Report ‘Improving But … Australia’s Regional Dialogue on Human Rights’ was tabled in the Senate by the Deputy President, Senator Paul Calvert. The following is an extract of the Response (Senate, Debates, 30 June 1999, p 6917):
The Government already strongly supports the ILO.…
It was in the light of budgetary constraints that the cutbacks referred to by the ACTU (reflected in paragraph 6.71 of the JSCFADT report) were undertaken. The Government still plays an appropriately active role in the ILO, albeit a lower-key one than was previously the case. Australia pays its assessed contribution to the ILO promptly, which is appreciated by the ILO. Australia’s 1999 contribution was assessed at SF 4.87 million ($A5.8 million paid in January 1999), which compares to SF4.93 million ($A5.3 million) for 1998. Australia pays 1.46% of the ILO’s budget, and is the twelfth highest contributor.
Australia meets its ILO constitutional obligations, including reporting regularly on the application and implementation of ratified conventions and unratified instruments; and tabling the texts of new instruments in Parliament together with a report on action proposed to be taken in relation to the new instruments. Also in accordance with the ILO Constitution, the Government funds a delegation of government, employer and worker representatives to attend each session of the annual International Labour Conference in Geneva. At the Conference, the Government has actively participated in the development and adoption of new international labour standards, and will continue to do so. In 1998, government delegates played an important role in obtaining support for a text which was acceptable to all parties for the ILO Declaration on Fundamental Principles and Rights at Work, and its follow-up.
The Minister for Workplace Relations and Small Business attended the twelfth ILO Asian Regional Meeting in Bangkok from 9-11 December 1997, together with a delegation of government, employer and worker representatives. The meeting discussed ILO activities for the region for the following three to five years.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a statement to the 54th Session of the United Nations General Assembly. An extract of the statement concerning reform of the United Nations follows:
[I]n truth, reform is the key to every single function of [the United Nations] — for without it, we cannot hope to equip the United Nations to face the demands of our ever-changing international environment.The UN must change and adapt, or become increasingly irrelevant.
…
Under the direction of Kofi Annan, this organisation has begun the important and necessary steps to equip itself to face these challenges through genuine administrative and management reform.
This has included promising changes in financial and personnel practices, significant economies, improving coordination between UN bodies, significant rationalisation of Secretariat structures and more efficient use of technology.
Such reforms make the work of the United Nations more efficient, and provide real savings for the organisation.
Those savings are then able to be used for other programs that benefit all member States, but particularly the developing members of the United Nations.
The challenge for the UN — and, let us all recognise, its member states — is to ensure that this momentum is sustained and taken forward.
…
We need to accept that the UN exists in a real world and be realistic about what the UN can achieve.
We need to ensure that the organisation’s structures and processes better reflect the realities of the twenty-first century.
We need an expanded, more representative and transparent Security Council, and an electoral group system which reflects the geo-political and economic realities of today rather than the early 1960s.
To achieve real reforms on these and other subjects, member states must work together in a sustained and cooperative manner.
And they must also demonstrate their commitment to the organisation by paying their contributions on time and in full.
[R]eform of the United Nations means building a stronger and more effective organisation that can deliver on its commitments to the world’s people.
It means less waste, and more practical activities. It means developing an organisation that is equipped to meet whatever challenges the new century may bring.
Ultimately, it means creating a United Nations that can maintain its relevance when many national and international institutions are falling by the wayside, made obsolete by the rapid pace of change.
On 16 November 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning Australian membership of the Commonwealth Ministerial Action Group. The following is an extract of the release (FA130):
I am delighted that the Commonwealth Heads of Government meeting [CHOGM], in Durban, has endorsed the Commonwealth Secretary General’s recommendation that Australia join the Commonwealth Ministerial Action Group (CMAG) as one of three new members.CMAG was established by CHOGM in Auckland in 1995 to deal with serious or persistent violations of the fundamental political principles set out in the Commonwealth’s Harare Declaration.
Commonwealth countries share a rich political and legal tradition, and we share common ideals and values. This makes the Commonwealth an effective source of help in strengthening the institutions of government.
Becoming a member of CMAG demonstrates Australia’s strong commitment to the Commonwealth’s work in these areas, and will enable Australia to support the Commonwealth’s ongoing promotion of the rule of law, democratic practices and good governance.
As Australia’s representative on CMAG I look forward to making an active contribution to the work of this key Commonwealth body.
On 22 April 1999, a statement was delivered by the Minister for the Environment and Heritage, Senator Robert Hill, to the 70th Session of the Commission on Sustainable Development in New York. An extract of that statement follows:
Such outcomes here can make a real contribution to overcoming the serious and worsening threats to the world’s marine biodiversity. These threats are the result of pollution, over-exploitation, conflicting uses of resources, and damage to or destruction of habitat — all of which can be reduced if we governments make sufficient effort, individually and in cooperation.Australia has responsibility for one of the world’s largest exclusive economic zones — an area one and a half times the size of our continental landmass. We take our obligation to ensure the sustainable use and conservation of the incredible biodiversity in that zone very seriously.
For that reason, late last year we released an Australian Oceans Policy which, among a comprehensive range of measures relating to the administration of our oceans, commits Australia’s national government to the development of ecosystem-based management plans for all our waters.
Those plans will ensure that the enormous economic potential of our EEZ is utilised in a way that is consistent with ecologically sustainable development and the conservation needs of marine ecosystems and species.
The efforts we are making in Australia to deal with the existing and potential threats facing our marine environment have prompted us to promote several initiatives in the lead up to CSD7. These include:
• reducing land-based sources of marine pollution; and
• conservation of coral reefs and associated ecosystems.Widespread international consensus already exists on the need to reduce land-based sources of marine pollution, and conserve coral reefs and their associated ecosystems, and on the ways in which this may be achieved.
I therefore support the actions outlined in the ‘Possible Elements for a Draft Decision’ on these issues. The real challenge in this area is accelerated implementation.
…
Australia believes that CSD should support efforts to improve international co-operation and coordination on oceans issues, both within national jurisdictions and on the high seas.
We recognise that there are now a large number of international fora that are responding to particular sectoral challenges. These include, for example, those regional and global organisations seeking to: manage migratory fish species; reduce the impact of land and sea sourced pollution; and regulate international shipping.
What the international community does not have is a clear mechanism to bring these sectoral organisations together. It is a problem that existed in Australia, which we have sought to address in our own Oceans Policy.
That is not because increased coordination is an end in itself. In relation to our oceans, Australia believes that improved cooperation between the sectors can assist in ensuring that the needs of marine ecosystems are treated holistically. Maintaining ecosystem health and integrity is only genuinely possible with integrated planning and implementation.
An Open-Ended Working Group on Oceans — reporting annually to the General Assembly — would be one option in attempting to draw together the work of the various sectoral bodies with the objective of ensuring the sustainability of marine resources.
Of particular concern to Australia is the need to improve the conservation and sustainable use of the biological diversity of the high seas.
At present, our collective knowledge of the biological diversity of the high seas is limited. But the more we learn the greater the potential value appears. Ecosystems and sub-systems are being identified that would clearly benefit from a conservation and sustainable use approach — or at least from some precautionary measures — to their initial exploration and utilisation. Examples include certain fisheries habitats, deep ocean trenches, seamounts and hydrothermal vents.
Now is the time to develop arrangements to conserve the biological diversity values of the high seas before such assets are lost.
Obviously such arrangements must be consistent with the freedom of the high seas, and the provisions of the UN Convention on the Law of the Sea, particularly those relating to the mineral resources of the deep sea bed and the conservation and management of living marine resources.
Improving international efforts in this area should be one of the priorities for the proposed Open-Ended Working Group.
On 22 April 1999, a statement was delivered by the Minister for the Environment and Heritage, Senator Robert Hill, to the 70th Session of the Commission on Sustainable Development in New York. An extract of that statement follows:
A vital element of our collective and individual efforts to protect marine biological diversity must be the accelerated development of marine protected areas.The Jakarta Mandate of the Convention on Biological Diversity drew attention to the need to establish or consolidate representative systems of marine and coastal protected areas. Many of the countries that endorsed such action through the CBD are represented in this room today.
Nevertheless, the fact remains that there is still only limited and uneven coverage of marine protected areas around the globe.
Marine protected areas can be tiny or vast in area, and can be established for a variety of management objectives, ranging from strict protection through to multiple use.
Marine protected areas therefore can accommodate recreational, cultural and economic activities within their boundaries if such activities are consistent with the primary conservation objectives for a particular area.
Australia’s Great Barrier Reef Marine Park is a working example of a multiple-use marine protected area that is subject to many and varied uses, including extensive fishing and tourism that generate substantial economic benefits. Similarly, we expect that further marine protected areas will sustain economic benefits by providing security to the future of industries, such as tourism and fishing, which depend on the quality and productivity of ecosystems.
In the context of this meeting, we have suggested that the CSD confirm support for a system of representative marine protected areas within the Exclusive Economic Zones of member States. By representative we mean representation of the many distinctive marine ecosystems. While the development of national components of the representative system must be the responsibility of individual governments, there is much that the international community can do to promote this objective through the sharing of information and experiences.
Australia believes that this proposal will make a significant contribution to the protection of marine biological diversity globally, while still allowing access to marine resources for sustainable development and food security purposes.
In the longer term, Australia also supports the development of marine protected areas within the high seas.
We recognise that there is currently no international mechanism to allow the declaration of MPA’s outside national jurisdictions. Nevertheless, on the basis of experience within our own jurisdiction, Australia considers that such measures will become essential if we are to achieve sustainable multiple use management of the resources of the high seas, their ecosystems and their natural productivity. Otherwise we could lose a great deal: both in terms of biodiversity and the industries which depend on it.
Australia therefore believes that one of the tasks of the proposed Open-Ended Working Group on Oceans should be to consider mechanisms that will allow the international community to establish protected areas on the high seas.
One course may be through United Nations Convention on the Law of the Sea, which already includes provisions that seek to promote the conservation and sustainable use of our marine environment on the high seas. But there may be other options, which the international community should explore.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
Australia’s negotiating position at Kyoto was informed by its economic as well as its environmental interests. In the post-Kyoto world, greenhouse remains a major issue for business with both a domestic policy and international negotiating dimension. In government our approach to greenhouse closely integrates the two aspects.…
While a great achievement, the Kyoto Protocol left a number of issues essential to its implementation for further negotiation. Australia, like many other countries will only consider ratifying the Protocol after these issues have been resolved.
Principal among them are:
• First, the rules and modalities for the Kyoto flexibility mechanisms — emissions trading, the clean development mechanism and joint implementation;
• Second, important definitional and operational issues concerning the treatment of sinks;
• Third, compliance with the Protocol obligations; and
• Fourth, developing country participation.These outstanding issues have created uncertainty for government and business concerning entry into force of the Kyoto Protocol and the role that emissions trading and the other flexibility mechanisms might play in meeting national emissions targets.
In Australia’s case, the unresolved issues surrounding sinks and particularly land use change patterns also make our target difficult to define.
…
Agreement on rules and guidelines for the Kyoto flexibility mechanisms — emissions trading, joint implementation (or JI) and the clean development mechanism (the CDM) — is the main objective of the Buenos Aires Plan of Action. The Umbrella Group of countries (Australia, the United States, Canada, Russia, Japan, the Ukraine, Norway, New Zealand and Iceland) are the most positive advocates of market-based, transparent and uncapped application of the flexibility mechanisms.
Properly functioning international emissions trading, JI and CDM will substantially reduce the cost to developed countries of achieving their Kyoto targets. ABARE modelling suggests that international emissions trading alone should reduce the global cost of implementing the Kyoto Protocol by 80 percent and for Australia by 20 percent.
Reducing the cost of implementation will lead to greater certainty that the Protocol will be implemented. It will also improve its environmental effectiveness by reducing the extent of carbon leakage — that is, the shifting of production activities to developing countries that don’t have reduction targets.
On 2 November 1999, the Minister for the Environment and Heritage, Senator Robert Hill, delivered a statement to the Fifth Conference on Parties to the Climate Change Convention in Bonn, Germany. The following is an extract from the statement:
It is two years since the historic decision in Kyoto when industrialised nations agreed to cap and reduce carbon emission levels as a contribution to combating global warming.It is also two years closer to the first reporting period and thus the time within which to implement domestic changes necessary to achieve savings commitments has been correspondingly reduced.
In this short time frame it is vital that we recommit ourselves to settle the outstanding issues of detail by this time next year and thus enable parties to address the issue of ratification. Final decisions need to be made on the issues of flexibility mechanisms, compliance and sinks at COP6. Sinks, and in particular revegetation, offer within Australia a unique opportunity for net greenhouse gas reductions as well as sustainable land management and biodiversity conservation.
We should also set our goal to achieve the implementation of the Kyoto Protocol as soon as possible after COP6, otherwise achieving the overall target of industrialised countries will become progressively less likely.
Successful implementation of the Kyoto Protocol is but one step on a long road to achieving stabilisation of greenhouse gas emissions. A failure to achieve that first step, however, will be a major failure by the global community in addressing one of the most worrying inadvertent consequences of industrialisation. We will be seen to have badly let down the young people of today and future generations. The full consequences of rapidly rising temperatures are not fully known but the overwhelming advice is that it would be foolish in the extreme to run the risk of severe adverse outcomes when more sustainable options are available.
… [T]he real test for COP6 will not be technical but rather political will.
To assist political will, we need a process to facilitate the inevitable difficult negotiations in the latter half of next year — the role of what I refer to as an honest broker. Although that process is not currently on the table it should be a high priority of this meeting.
We are however helped by the fact that as more work is done the clearer it becomes that the mechanisms and sinks can contribute to a better outcome for the environment by lowering the cost of abatement action. Not only that but they can also assist sustainable development by helping to move new technologies to countries and sectors where business as usual would not provide the same opportunities.
But as time goes by it becomes even more apparent that a better global outcome requires not only abatement action by industrialised countries but by developing country emitters as well. Carbon leakage to developing countries does not improve the global outcome nor does it assist in maintaining the commitment of developed countries to show the lead. With this in mind I congratulate Argentina on their target announcement. We hope this will be the first of many such announcements as we move toward a truly global response to climate change.
For countries such as Australia with high costs of abatement it has been important that we not wait for the Kyoto protocol to take effect before we take action. Thus we have embarked on a major package of measures designed both to reduce emissions directly and to foster opportunities for ongoing reductions. That program has been successfully under way now for two years. In June this year, the Australian Government committed to an additional much more far reaching program.
Government expenditure on the two programs will total almost $1billion Key areas for investment include:
• Energy efficiency — We have measures in place to promote energy efficient power generation, building construction, appliances and equipment, and passenger vehicles
• Partnership programs — Australia has one of the largest Cities for Climate Protection programs in the world and our very successful Greenhouse Challenge program has resulted in industry partners saving over 20 million tonnes of greenhouse gas emissions
• Renewable energy — We have committed total direct investment of over $350 million and will establish a mandatory requirement for electricity generators and large users to source an extra 2% of their electricity from renewable sources by 2010. This target will see renewable energy providing about 12.5% of Australia’s electricity, one of the highest totals in Annex 1.
On 23 November 1999, in the Senate, the Minister for the Environment and Heritage, Senator Robert Hill, answered a question on notice from Senator Nick Bolkus concerning ratification and entry into force of the Kyoto Protocol. An extract of the Minister’s response follows (Senate, Debates, 23 November 1999, p 10385):
…[T]he Kyoto Protocol will not be ratified by major players until a number of matters have been settled, including the flexibility mechanisms—which, in turn, include matters such as the Clean Development Mechanism and emissions trading—issues of compliance and issues of sinks. It is hoped that the detail of these matters will be settled at the next conference of the parties, which in turn, it is believed, although it is not certain, will be held late next year. It should clear the way for consideration of ratification by the major emitters.But there is one matter that, beyond issues of filling in the detail of the Kyoto Protocol, is critical to the issue of ratification, and that is third-party participation by developing countries. It is well known that without the settlement of details, such as on emissions trading, and also real commitments by large developing country emitters, the United States will not ratify. It is true that it is technically possible for enough other states to ratify without the United States, but it is simply unrealistic to expect that to occur. I say that, knowing as I do that the European Union has made some public statement to the effect that it might do so. In my view, it will not do so ahead of the United States because, by doing so, it could be economically disadvantaged; and that is just not the real world.
It is in Australia’s interests to get the detail of Kyoto finally settled at the next COP and to get the Kyoto Protocol brought into legal effect as soon as possible. That is because Australia, although accepting a demanding target at Kyoto, nevertheless got a fair target, and it is unlikely that any alternative international negotiation that could potentially subsume Kyoto in the future would give to Australia an opportunity that is as fair as we were able to negotiate in Kyoto.
We are one of the countries that are actively working towards settling outstanding issues in order that ratification might be made at the earliest possible date, in order that the Kyoto Protocol might come into effect and be legally enforceable. In concluding, I make the point that I have made before: Australia, in terms of its domestic response, is not actually waiting for the Kyoto Protocol to come into effect: we are implementing programs to achieve our target, notwithstanding.
On 11 May 1999, in the Senate, the Minister for Industry, Science and Resources, Senator Nick Minchin, answered a question on notice from Senator Bob Brown. The following is an extract of the Minister’s response (Senate, Debates, 11 May 1999, p 4802):
Article 12 of the Kyoto Protocol makes it clear that the purpose of the Clean Development Mechanism (CDM) is to assist developing countries in achieving sustainable development and in contributing to the ultimate objective of the Convention [on Climate Change]. The Government views the CDM as an important element of the Kyoto Protocol by virtue of its capacity to engage developing countries in responding to climate change.The Government is presently participating in international negotiations aimed at establishing the detailed operational arrangements to apply to the CDM. In approaching these negotiations, the Government is not seeking to oppose [nuclear energy, including construction of associated infrastructure, coal seam methane or any other by-product of the coal industry; or any fossil fuel-based technology].
Article 12 stipulates that the certification of emission reductions will be based on real, measurable and long term benefits related to the mitigation of climate change. Should projects involving any of these technologies be developed on this basis, the Government considers that they should qualify for the allocation of emission credits under the CDM. To limit the generation of emission credits that might be derived from energy production sources to renewable energy—which is the upshot of opposing the three technologies raised in the question—would be quite unrealistic and would unnecessarily constrain the technology options available to developing countries in developing their energy sectors. Improving the efficiency with which fossil fuel based energy sources are used, for instance, can have definite climate change benefits and should be recognised as such.
The developmental aspirations of developing countries cannot be realised by relying solely on currently available renewable energy technology. Even allowing for concerted global action to mitigate the effects of climate change, fossil fuels and nuclear energy will continue to play a major role in the global energy supply for the foreseeable future. Accordingly, there is no justification for excluding these energy sources from consideration under the CDM. Host countries will, of course, through their role in approving projects, be able to exercise discretionary control over which technology options they adopt.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
…CDM has the potential to lower developed country abatement costs by allowing access to low-cost abatement opportunities in developing countries. It will also boost investment in developing countries and give them access to environmentally superior technology. CDM is receiving intense scrutiny at the moment both because of its obvious attraction and because the protocol provides for start up in 2000.In order to realise this potential, however, the rules for the CDM need to be settled in a way that does not weigh down CDM projects with administrative costs. A key issue is that baselines against which emission reductions are measured must be sufficiently accurate to ensure that the reductions caused by a CDM project are real, yet do not needlessly constrain project opportunities. It will also be important that the administrative structures imposed on the CDM by the Protocol are kept light and flexible and that the proposed tax on project proceeds does not act as a disincentive to investment.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
In the case of emissions trading, the question of liability is one of these issues. Liability, or allocation of risk, relates to the validity of emission permits sold by a Party subsequently found to be in non-compliance with the Protocol.Issuer liability would have the Party which issues the permit bear the responsibility for finding other means to meet its target if it is found to be out of compliance — that is, the permit remains valid in the hands of the buyer.
Buyer liability would mean that the buyer would be unable to use permits to meet its target if the Party that issued those permits was out of compliance. In the case of buyer liability, the price of permits would reflect the risks associated with their issuer’s assessed capability to meet their target. There is also a range of possible mixed approaches. We are currently analysing where the balance of advantage might lie for Australia. We will shortly be publishing a paper and seeking stakeholder views on this issue.
Now let me turn to the international competition aspects of emissions trading, which will also be an important consideration for Australia. As a small economy, we will want to avoid dominant suppliers and buyers of permits exploiting monopoly positions.
Competitive practices are best assured through maximising the number of countries and entities participating in emissions trading, in order to ensure that there are numerous and diverse suppliers of permits. A robust Clean Development Mechanism will be important in this regard.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
Significant differences also remain on the way forward on joint implementation (or JI). The EU is seeking a more regulated approach to JI, with processes and rules aligned to those being considered for the Clean Development Mechanism. Australia and other Umbrella Group countries see a need for only minimal rules, given that JI involves transfer of emission reduction units between developed countries.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
Negotiations on the Protocol treatment of sinks are essentially in a holding pattern awaiting the release of the IPCC Special Report on Land Use, Land-Use Change and Forestry (or LULUCF) in May 2000. The Protocol provides a broad framework for the inclusion of sinks but leaves the details of how this will be implemented for further negotiation and decision at COP6.There are indications that some countries will seek to use the LULUCF negotiations to re-open the hard-won Kyoto outcome on sinks. The EU and some developing countries are seeking to curtail the extent to which countries can use sinks to meet their targets. This position derives from the view that reducing energy consumption is the only legitimate form of greenhouse gas emission abatement. Umbrella Group countries, including Australia, argue that sinks offer an important vehicle for low-cost, flexible greenhouse gas abatement. In addition, the inclusion of sinks delivers an environmental benefit because it ensures that all avenues for reducing emissions are addressed.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
Compliance will be an important issue in the negotiations but is one that is just beginning to be addressed. Compliance is about determining whether Parties have met their obligations under the Protocol and the consequences of not meeting them. The Australian Government would be subject to the compliance framework under international law; industry and the community would be subject to whatever legislation Australia puts in place to implement the Kyoto Protocol.The shape and nature of the compliance system was left undetermined in Kyoto. Parties are negotiating a compliance system, within the same timeframe as that for the mechanisms (ie. with a view to a decision by COP6).
The design of the Protocol’s compliance system will not be an easy task. The discussion is at a preliminary stage with more questions than answers about how the system should apply to the Developed Countries’ emission targets and to the flexibility mechanisms. There are no obviously compliance models in international law for these two novel elements and negotiators have largely had to start from scratch.
The compliance system will be important to the successful implementation of the Protocol. Few countries will be prepared to incur the costs and undertake the required structural changes to their economies in order to meet their targets unless they can be sure that others will also abide by their commitments. But many countries will be reluctant to agree to a framework that provides for hard penalties for not achieving targets.
Given the stakes involved, compliance will be another endgame issue. We plan to release a discussion paper next year to help the Government hear stakeholders’ views and develop its position.
On 6 July 1999, the Ambassador for the Environment, HE Ralph Hillman, delivered a speech to the Committee for Economic Development in Australia. An extract of that speech follows:
There was a draft article in the Kyoto Protocol providing for voluntary commitments by developing countries, which was lost during the last stages of COP3 in Kyoto. The only article remaining in the Protocol that involves developing countries in abatement activities is Article 12 on the Clean Development Mechanism — another reason why the CDM is important.Dealing with the question of developing country participation is essential if the environmental objectives of the climate change convention are to be met. By around the year 2020, developing countries will have overtaken developed country emissions.
Involving developing countries is also essential in order to address carbon leakage, whereby emitting industry moves to countries that do not have legally binding emission commitments. And linked to that, we need to address competitiveness concerns strongly held by industry in Australia and many other developed countries.
Australia is involved with other developed countries in working with developing countries on their participation in emission abatement. We believe that, ultimately, developing countries should have differentiated emission commitments that recognise their particular economic and social circumstances. These commitments will need to be binding. That will permit them to participate in emissions trading.
But there is also the more immediate political imperative that the United States will only ratify the Protocol if the Administration can persuade Congress that there is ‘meaningful participation’ by developing countries. Congress has signalled its conditions for ratification in the Byrd-Hagel resolution.
There have been some encouraging developments in this area. At COP4 in Buenos Aires, Argentina and Kazakhstan stated publicly that they were prepared to take on voluntary commitments. Since then, there has been an informal dialogue with these and other developing countries on what form such commitments might take.
In addition, attitudes to climate change in the US Congress and business circles are changing, with growing acceptance that climate change does need to be addressed and that there are opportunities as well as costs.
It is much too early to try to predict what form a political package which addresses ‘meaningful participation’ might take. For one, there will be Presidential and Congressional elections in November 2000. By 2001-02, meaningful participation may well be perceived by Congress as involving less than the Byrd-Hagel resolution that there would need to be new specific targets for developing country parties in the first commitment period.
On 31 March 1999, in the House of Representatives, the Minister for Trade, Mr Mark Vaile, made the following comments in the course of the second reading speech for the Ozone Protection Amendment Bill 1999 (House of Representatives, Debates, 31 March 1999, p 4958):
The Ozone Protection Amendment Bill 1998 will amend the Ozone Protection Act 1989—the act. The act enables Australia to fulfil its international obligations as a party to the Montreal Protocol on Substances that Deplete the Ozone Layer—the Montreal Protocol—to eliminate its consumption of ozone depleting substances. The act controls the import, export and manufacture of a range of ozone depleting substances, known as ‘scheduled substances’, by requiring licences for these activities, and by prohibiting the import and manufacture of certain products containing ozone depleting substances.The act is a key element in Australia’s approach to ozone protection. It is administered and enforced in conjunction with complementary state and territory legislation and controls, and industry and non-government organisation activities, including voluntary codes of practice. This highly cooperative approach to environmental protection is detailed in the 1994 revised strategy for ozone protection and was endorsed by the Australian and New Zealand Environment and Conservation Council in 1995.
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The Ozone Protection Amendment Bill 1998 represents the most recent step in Australia’s response to the challenge of ozone depletion. It proposes amendments to improve the operation of the act’s licensing and quota systems, and to allow more effective and targeted regulation of ozone depleting substances. The amendments reflect agreed solutions to issues encountered by industry, government and community stakeholders in progressing Australia’s phase-out of ozone depleting substances.
The decision to implement these solutions through legislation was taken through ongoing dialogue with industry and consultation with the Office of Regulation Review to make the initiatives business effective. This is reflected in the conclusions of the regulation impact statements. As a party to the Montreal Protocol and its amendments, Australia must phase-out consumption and production of HCFCs by 2020 and methyl bromide by 2005.
The act provides that the import, export or manufacture of either HCFCs or methyl bromide is prohibited unless otherwise authorised under a ‘controlled substances’ licence. The bill clarifies that, in assessing an application for a ‘controlled substances’ licence, separate consideration may be given to each activity in which an applicant seeks to engage. Given the proximity of the scheduled phase-out dates for HCFCs and methyl bromide, and that neither substance is currently manufactured in Australia, this proposed amendment will ensure manufacturing is not commenced in Australia by ‘controlled substances’ licensees without due consideration.
Australia’s HCFC industry activity triggered the quota system under the act for the first time in 1997. The act limits the total quantity of HCFCs that may be imported or manufactured by licensees to approximately half the ‘country cap’ allocated by the Montreal protocol, whereby the quota system is triggered.
The HCFC quota system will commence from 1 January 1999. From this date, HCFC ‘controlled substances’ licensees must seek a quota allocation to engage in the regulated HCFC activity of importation or manufacture. The quotas will be allocated for a period of two years. After the first quota allocation, quotas will be based on the licensee’s individual activity in the penultimate calendar year before the start of the following quota period.
The amendment enables the continued issuance of a ‘controlled substances licence’ for a two-year period, and further specifies as a condition of the licence the quantity of HCFCs a licensee may import or manufacture within any given year of a quota period. This will ensure Australia’s HCFC controls remain equitable and efficient by avoiding possible distortion in the calculation of future quota allocations, for example, if a disproportionate amount of a total quota allocation is imported in the first year of a quota period.
It is with the strong and active support of the fluorocarbon industry that this bill addresses this issue. During the development of the bill, the Commonwealth Attorney-General’s Department identified an area of duplication in the act, arising from its historical development which reflects Australia’s changing international obligations.
The ratification by Australia of the Montreal Amendment to the Montreal Protocol which the parties adopted at their ninth meeting in 1997 to ban trade in methyl bromide with non-protocol countries, means the substance is now more effectively covered by the existing provisions in subsections 18(2) and (3), rather than in sections 42 and 43, which are to be repealed by the bill.
Subsections 18(2) and 18(3) provide that it is a condition of a licence granted under the act that scheduled substances, which include methyl bromide, are not to be imported to, or exported from, a non-protocol country. Breach of the licence condition without reasonable excuse is an offence with a maximum penalty of 500 penalty units, currently $55,000. The bill also updates the Montreal protocol text in the act with the addition of the most recent text following schedule 3.
The last two amendments will finetune the administration of the act. One allows ministerial delegation of the power to request further information in relation to a licence application. This will shorten the time for licence applications to be assessed and issued.
Another clarifies the scope of the exemption from the prohibition on manufacturing or importing CFC-dependent refrigeration and airconditioning equipment. The amendment specifies that the exemption only applies to the import of the CFC-dependent refrigerated transport containers not their manufacture.
On 25 October 1999, the Ambassador for the Environment, HE Ralph Hillman, sent a letter to stakeholders following the Vienna Informal Consultations on the Biosafety Protocol. An extract follows:
Australia remains committed to the successful conclusion of the Biosafety Protocol. As one of the world’s twelve biologically mega-diverse countries, and as a country likely to become increasingly involved in trade in living modified organisms (LMOs), Australia has important interests at stake. Throughout the negotiations, Australia has actively pursued a Protocol which recognises each country’s sovereign right to protect its biological diversity while avoiding unnecessary burdens and restrictions on trade in LMOs. Australia continues to work with the Miami Group (Argentina, Canada, Chile, USA and Uruguay) and other countries to ensure the Biosafety Protocol is practicable and achieves its environmental objectives without creating unnecessary trade barriers.
On 9 December 1999, the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, done at Paris on 17 June 1994, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The UNCCD addresses causes and consequences of desertification and promotes sustainable dryland management in developing countries, particularly in Africa. In Australia the term ‘land degradation’ is normally used to describe physical social and economic processes contributing to the phenomenon. In the UNCCD, the terms ‘desertification’ and ‘land degradation’ are definitionally separated (see Article 1 under Obligations, below). The UNCCD provides the framework for assisting affected developing countries to deal responsibly with land degradation and desertification in their use of aid. Developed countries agree to assist developing countries, as appropriate, with financial, technology transfer and capacity building support measures.…
In the wake of the 1992 United Nations Conference on Environment and Development (Brazil), UN member states, including Australia, recognised that, without coordinated and cooperative responses to desertification and its consequences, the effectiveness of multilateral remedial action would continue to be limited and dominated by donor competition, lack of coordination and duplication of effort. A cooperative international instrument was considered the best way of overcoming such problems. This Convention has been specifically designed to encourage inclusive partnerships and cooperation and coordination (Article 3), and is unique as a legally binding international instrument which explicitly stresses partnerships rather than aid. This is consistent with Agenda 21. (Agenda 21 was the non binding framework for action initiated by the 1992 Conference on Environment and Development).
Under the UNCCD, affected developing countries must develop National Action Programs (NAPs). These are guided by Regional Implementation Annexes which focus NAPs on the prevailing socio-economic, geographic and climatic circumstances of affected regions (Australia is not subject to a Regional Implementation Annex — see below under Article 15 and Future Protocols). The UNCCD is also designed to facilitate better co-ordination of development assistance programs run by multilateral funding bodies such as the World Bank, the International Fund for Agricultural Development, the Asian Development Bank and the Global Environmental Facility.
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With its drought prone and arid landscape profile Australia’s ratification of the UNCCD would reinforce international recognition of Australia’s capacity and expertise in overcoming land degradation and desertification problems.
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Domestically, ratification could be good for business in parts of regional Australia where dryland and agricultural consultancy firms may be based or draw expertise, and where suppliers or manufacturers of technology or equipment used in the field may be located.
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In essence, the UNCCD is an aid Convention. Ratification gives Australia influence in ensuring and improving the effectiveness of aid delivery to desertification affected countries and administration of the UNCCD and its Secretariat.
On 12 December 1999, the Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for the Environment and Heritage, Senator Robert Hill, issued a joint media release concerning Australia’s ratification of the United Nations Convention to Combat Desertification. An extract of the release follows (FA134):
The Minister for Foreign Affairs, Alexander Downer, and the Minister for the Environment and Heritage, Robert Hill, today announced that the Commonwealth Government has moved a step closer to ratification of the United Nations Convention To Combat Desertification (UNCCD).…
The UNCCD promotes sustainable dryland management in developing countries, particularly in Africa. Mr Downer and Senator Hill said ratification of the Convention would reinforce international recognition of Australia’s capacity and expertise in overcoming land degradation and desertification problems.
‘Not only would ratification be good for the environment, it would also be good for Australian business working internationally on drought mitigation and land degradation problems,’ Mr Downer said.
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Mr Downer pointed out that Australian aid for desertification and land degradation related projects overseas already amounted to approximately $32.5 million.
‘Ratification would make no substantial difference to our clear commitment, in dollar terms, to reversing desertification. But by ratifying, Australia will be in a much better position to help ensure that implementation of the Convention is properly carried out and it is effective in its delivery of assistance to affected developing countries,’ Mr Downer said.
Australia would also work towards improving co-ordination between other donors and international funding bodies, like the Global Environment Facility of the World Bank, and recipient countries.
The Ministers confirmed that ratification would not entail any changes to existing land management arrangements between the Commonwealth and the States.
On 23 April 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the new accord between leaders of Papua New Guinea and Bougainville (FA41):
I warmly welcome the signature in New Zealand yesterday (22 April) of the Matakana and Okataina Understanding between Papua New Guinea and the leaders of Bougainville. It is another milestone in the Bougainville peace process.I congratulate all the participants for the strength of leadership they have displayed in finding common ground.
All parties have re-committed themselves to the letter and the spirit of the Lincoln Agreement and also set out some additional practical steps for reaching a negotiated settlement.
Leaders from Port Moresby and Bougainville, including Bougainvillean members of the National Parliament, have again demonstrated that with goodwill, determination and a willingness to compromise they can meet widespread expectations for peace.
I do not under-estimate the challenges that still lie ahead. After years of conflict and suffering, reconciliation and trust will not always come easily. But nor do I under-estimate the capacity of the Prime Minister Bill Skate, his Government and the leaders of Bougainville to steer the peace process through the remaining difficulties towards a lasting settlement.
I urge them to continue to work in a spirit of cooperation and reconciliation.
Australia and other countries that have supported efforts to bring peace to Bougainville are naturally heartened when the parties to the ceasefire take important steps forward.
Australia will continue to support and facilitate the peace process, including through our bilateral aid program and — in close collaboration with Fiji, New Zealand and Vanuatu — through the work of the Peace Monitoring Group.
On 30 April 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the anniversary of the ceasefire in Bougainville. An extract of the release follows:
A year ago in Arawa I was privileged to witness the signing of the ceasefire which marked the culmination of determined efforts by the Papua New Guinea Government and the leaders of Bougainville to meet the strong desire of their people for peace.After many years of bitter fighting and bloodshed, which took an enormous human and economic toll, the ceasefire ceremony was a truly remarkable achievement: former enemies dedicated themselves to reconciliation and to the pursuit of a negotiated settlement.
Much has been achieved in a year — children are returning to school, businesses are re-starting, people can move more freely around the province, and services are operating again. Hope has been restored to the people of Bougainville.
But much also remains to be done. Further reconciliation is required at the local, provincial and national levels so that weapons can be laid down permanently and all Bougainvilleans can enjoy prosperity and democracy.
On the first anniversary of the ceasefire, I am pleased to reaffirm Australia’s willingness to facilitate and support the Bougainville peace process through the bilateral aid program and together with Fiji, New Zealand and Vanuatu — the Peace Monitoring Group.
I hope that all parties on Bougainville and on both sides of Parliament in Waigani will see the anniversary as an opportunity to re-dedicate themselves to a settlement based on compromise and goodwill.
On 22 January 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in the course of a speech to the Annual Conference of the Federation of Cypriot Communities in Adelaide. An extract of the speech follows:
That we have not been able to reach a solution in such a long period of time is a lamentable situation in human terms. Issues such as the missing persons, property exchange and compensation, and possible resettlement remain unresolved. The two communities have been unable to tackle the common problems, such as water and the environment, which confront them both on this small island. And it has created tension in the region and bedevilled the development of good relations between close neighbours.The Australian Government believes that a settlement is long overdue. It has constantly affirmed the need for a peaceful, negotiated solution which meets the legitimate interests of all the parties. The Government shares with the international community the view that the UN Secretary General’s 1992 ‘Set of Ideas’ forms a basis for arriving at a settlement.
Of course, it is for the parties themselves to negotiate the exact terms of any ultimate settlement, including issues such as; the nature of any constitutional arrangement; security; adjustment of territory; resettlement; property compensation; and movement between North and South. Reaching an agreement on these, and any other outstanding issues, will however, clearly require good will on all sides and a willingness to make difficult compromises.
On 20 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the continuing role of the Australian Special Envoy for Cyprus (FA80):
I am pleased to announce that the Australian Government Special Envoy for Cyprus, Mr John Spender, will be returning to Australia in August for further consultations with Government and discussions with community representatives on the situation in Cyprus.Mr Spender submitted his Report on the Cyprus situation to me at the end of last year following extensive consultations with interested parties in Australia and overseas. In Australia he consulted with community representatives, and a wide range of political and community leaders, officials, media representatives and academics in Europe, the United States, the United Nations, Canada, Greece, Turkey and Cyprus. Since submitting his Report, Mr Spender has continued his consultations, principally in Cyprus and Turkey.
Mr Spender will be returning to Australia to brief community representatives on his Report and to listen to their views and to brief the Government on his continuing consultations. The need for a continuing role for the Special Envoy is underlined by the fact that this month marks the twenty-fifth anniversary since the events of 1974 which have led to the current division of Cyprus.
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I welcome the continuing efforts of the UN Secretary General, with the support of others including most recently the G8, to assist the parties towards reaching a negotiated agreement.
The Australian Government strongly supports these efforts, including through the continuing role and activities of the Special Envoy.
I call on all parties to show the necessary goodwill and spirit of compromise so as to achieve as soon as possible a lasting and just settlement
On 6 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a media release (FA97):
The Australian Government will assist UNAMET with the departure of a number of non-essential UNAMET personnel from East Timor. This decision responds to a formal request on the evening of 5 September from the UNAMET chief, Mr Ian Martin in Dili, to temporarily relocate some staff to Darwin in the light of the deteriorating security situation.…
I deplore the serious deterioration in the security situation on the ground which has precipitated the UN’s decision to drawdown some of its staff from East Timor. The impunity with which the pro-integration militias have operated throughout the territory, particularly in Dili since the announcement of the ballot result, is a matter of grave concern. The failure of the Indonesian security forces to control the situation has seriously put at risk orderly progress toward implementation of the outcome of the 30 August ballot.
I have accordingly instructed our Permanent Representative in New York to consult urgently with Security Council members to discuss the current situation in East Timor, and to explore possible options for dealing with it .
I have already spoken to Indonesian Foreign Minister Ali Alatas to inform him of the Australian Government’s action, and to express the Australian Government’s concern about the current security situation on the ground.
On 24 March 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the commencement of NATO airstrikes against the Federal Republic of Yugoslavia (FA26):
The Australian Government regrets that the intransigence of President Milosevic of the Federal Republic of Yugoslavia has brought NATO to authorise airstrikes.Responsibility for NATO action lies squarely with the Serbian leadership and President Milosevic. It is they who rejected the Rambouillet peace proposal.
The peace process was given every chance, with earnest efforts by the peace talks co-chairs, the Contact Group of countries, as well as US Special Envoy Richard Holbrooke who was despatched in a last ditch effort to persuade President Milosevic to accept the draft Rambouillet accords.
It is the Serbian leadership and President Milosevic who are responsible for the large scale violations of the October Agreements with the OSCE and NATO. Full compliance with these agreements was demanded by the United Nations Security Council in its Resolution 1203 of 24 October 1998. The leadership also bears responsibility for the increasing humanitarian and refugee crisis stemming from offensives by Serb/FRY forces against the Kosovar Albanians.
President Milosevic must be left in no doubt of the international community’s resolve to bring an end to the fighting and prevent further suffering in Kosovo.
On 25 March 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question without notice concerning Australia’s response to the NATO air attacks on the Federal Republic of Yugoslavia from Mrs Christine Gallus. Extracts of the Minister’s response follow (House of Representatives, Debates, 25 March 1999, p 4423):
… These attacks by NATO on Yugoslavia are, of course, deeply regrettable, but the Australian government supports the NATO air strikes against military targets in Yugoslavia. We do regret that this action has become necessary, but there is only one person who is responsible for what has happened—that is, President Milosevic, the President of the Federal Republic of Yugoslavia.The international community cannot simply stand by and watch as President Milosevic’s forces continue to perpetrate the sort of human rights abuses that have recently been perpetrated in Kosovo. It is an unreasonable proposition to expect NATO leaders to sit on their hands in that situation and do nothing.
Let me make it clear that our argument here is an argument with President Milosevic, with his government and with the instrument of his government, his armed forces. It is not an argument with the Serbian people as a whole. The tragic situation rests squarely with President Milosevic himself.
On 10 June 1999, the Prime Minister, Mr John Howard, issued a media release concerning the conclusion of a peace agreement for Kosovo:
I welcome last night’s agreement between NATO and Yugoslavia on the conditions for achieving peace in Kosovo.The agreement provides for the withdrawal of Yugoslav troops from Kosovo and the deployment of an international security force. It is an important step towards the eventual safe return of the hundreds of thousands who have been forced to flee their homes in Kosovo and take shelter elsewhere — including in Australia.
Clearly our strong hope is that the end to hostilities will enable the early release of Steve Pratt and Peter Wallace.
Passage in the next few days of the United Nations Security Council resolution, agreed by G8 ministers, will be essential in securing a peace settlement. The government encourages all members of the Security Council to move expeditiously.
The government hopes that the commitments made by the government of Yugoslavia will be adhered to so that peace can be brought to Kosovo as soon as possible.
On 19 May 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the outcome of the Israeli elections. An extract of the release follows (FA54):
Israel has now well and truly entered a period in its history when a comprehensive peace with all its neighbours is a realisable and realistic prospect. No-one, however, can be under any illusion that the path ahead in the Middle East peace process is likely to be a smooth one.Australia firmly supports the continuation of the negotiating framework and constructive dealing between Israel and the Palestinians which grew out of the principles embodied in UN Security Council Resolutions 242, 338 and the 1993 Declaration of Principles, and which was re-invigorated by last year’s Wye River Agreement.
Australia looks forward to the creation of a lasting peace in the region in which the sovereignty of all countries, and their right to live in peace with their neighbours, are respected and protected on an equitable basis. Mr Barak has declared his willingness to move the peace process forward and, in that endeavour, I can assure him of continuing Australian support.
On 6 September 1999, the Minister for Foreign Affairs, Alexander Downer, issued a media release. An extract of the release concerning the signing of the revised Wye River Agreement follows (FA98):
I warmly welcome the signing on 4 September 1999 in Sharm el-Sheikh, Egypt, of the revised Wye River Agreement.The undertakings of both parties to adhere to a timetable for the implementation of steps agreed upon last October reflect their genuine desire to move forward in an atmosphere of renewed trust and mutual confidence.
The fact that both Israel and the Palestinians were able, through negotiation, to arrive at an agreement containing concrete and specific details for the next steps in the process is a positive and significant development.
I applaud the particular contributions made by the United States and Egypt to the achievement of that outcome.
With the expected implementation of the revised agreement over the next few months, the focus of the Middle East peace process has turned decisively towards dealing with final status issues. Both sides are now committed to the negotiation of a framework agreement on all permanent status issues by February 2000, and to achieving a detailed agreement on a permanent peace settlement within a year.
I wish both sides every success in their pursuit of those challenging targets. I also hope that the latest agreement will help renew progress towards a comprehensive peace between Israel, Syria and Lebanon.
On 3 August 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release which contained the following comments concerning the situation in Sri Lanka (FA87):
I call once again on the Liberation Tigers of Tamil Eelam (LTTE) to step off the path of terrorism and urge all parties to work for a lasting political solution to the conflict in Sri Lanka. I also reaffirm the Australian Government’s position that it will not have any dealings with groups or individuals that do not unreservedly condemn such acts of wanton terrorism and dissociate themselves from violence as a means to further political aims.
On 18 February 1999, the following comments concerning disarmament were made in a media release issued by the Minister for Foreign Affairs, Mr Alexander Downer (FA 16):
The Government attaches a high priority to Australia making a practical and realistic contribution to global disarmament and non-proliferation efforts. This activity serves direct Australian security interests, one of the Government’s key foreign policy goals.The Government’s principal arms control objectives for the near term are to strengthen the non-proliferation and disarmament regime through the 2000 NPT Review Conference, particularly in response to the challenge posed by the nuclear tests in South Asia and North Korea’s nuclear and missile programs. Good early progress in the negotiation of a Fissile Material Cut-Off Treaty and the negotiation of an effective verification regime for the Biological Weapons Convention are particular priorities.
The Government will also continue to pursue the negotiation in the Conference on Disarmament of a global ban on landmines transfers to complement the Ottawa landmines ban Convention which Australia ratified on 14 January 1999.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning disarmament in the course of a speech to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
The far-sighted decision in 1995 to extend the NPT indefinitely means that it is now a permanent tenet of international law. But no Treaty is secure simply by virtue of its legal permanence. That is why Australia devotes a significant part of its national foreign policy resources to the care and maintenance of international arms control agreements. That is why Australia will be working hard for a successful NPT Review in the year 2000 to ensure commitments to the principles enshrined in that Treaty are reaffirmed.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the Conference on Nuclear Arms Control. An extract of the speech concerning weapons of mass destruction follows:
… progress on nuclear disarmament will in itself be influenced by developments in other Weapons of Mass Destruction (WMD) control regimes. Australia continues to take an active and leading role in strengthening international arrangements to control all WMD.We continue to work long and hard to get widespread and full compliance with the Chemical Weapons Convention; we are continuing with efforts to obtain international agreement on a protocol to strengthen the Biological Weapons Convention; and we continue to chair the Australia Group as part of our efforts to prevent the proliferation of biological and chemical weapons.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, gave a speech to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. An extract of the statement concerning disarmament follows:
The Government is fully committed to the twin goals enshrined in the Nuclear Non-Proliferation Treaty (NPT) of preventing the proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament.But calls for a multilateral nuclear disarmament process are misguided in current circumstances. As I said at the Conference on Disarmament last year, would it help, as some appear to be proposing, to bring the START process into the CD and subject it to preordained timetables and negotiation by 60 countries instead of two? Would that accelerate the business of getting rid of actual nuclear weapons?
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There are many steps to be taken on the road to the goal of nuclear disarmament before the question of a single nuclear weapons convention can be productively addressed. The Australian Government does not favour the concept, advocated by some, of a timebound framework for nuclear disarmament, nor does the Government share the views of the ‘New Agenda’ coalition that a radical new approach to nuclear disarmament — exactly what new approach is not all that clear — is warranted by the current state of the nuclear disarmament process.
Whereas a multilaterally negotiated legal instrument may well be a focus of the final phases of the elimination of nuclear weapons, it is more productive in present circumstances to continue to encourage the Nuclear-Weapon States to maintain the momentum of nuclear arsenal reductions, notably under the START process.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech o the Conference on Nuclear Arms Control concerning the future of the Nuclear Non-Proliferation Treaty. An extract of the statement follows:
There are some who consider that the nuclear weapon states — Russia and the United States in particular — are not living up to the commitment they made in the Treaty to ‘pursue negotiations in good faith on effective measures relating … to nuclear disarmament’. This is the message of the New Agenda coalition, for example. The Australian Government does not accept this proposition.There are no short-cuts when it comes to nuclear disarmament. Nuclear disarmament is difficult, slow and expensive. It is not immune to broader global developments and the state of US-Russia relations. And it can only be achieved in a stable and verifiable way when the parties concerned have fully negotiated and have confidence in the measures being undertaken.
Against that background, there is a tendency to underestimate the progress already made — much has been done on nuclear disarmament.
This, in our view, is the flaw in the approach taken by the New Agenda coalition. While there are elements of the draft New Agenda resolution before the United Nations General Assembly that Australia could support, taken as a whole it presupposes the failure of the existing disarmament and non-proliferation regime — a contention we simply do not accept. The resolution ignores the reality that nuclear disarmament is difficult and slow, and it risks making debate on nuclear disarmament in forums such as the NPT even more polarised.
Let me make it quite clear: the Australian Government is fully committed to working, by balanced and progressive steps, towards the ultimate elimination of nuclear weapons. As I said at the beginning it is an obvious political reality that reductions in nuclear weapons — leading to a world free of them — must be made incrementally. Our interest is in promoting a realistic, balanced approach to nuclear disarmament, which takes account of strategic realities and which, importantly, stands the best chance of engaging the nuclear weapon states constructively. We have urged the Russian Duma to ratify START II and have encouraged both Russia and the United States to continue their preliminary discussions on START III.
For the time being the onus for nuclear disarmament lies with the nuclear weapon states, but non-nuclear weapons states can reinforce non-proliferation and disarmament goals, such as by encouraging entry into force of the CTB and the negotiation of a Fissile Material Cut-off Treaty. This year Australia is cosponsoring First Committee resolutions on the CTBT and the FMCT aimed at progressing the entry into force of the CTBT and the early commencement of FMCT negotiations.
We are hopeful that the resolutions will generate overwhelming support.
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On nuclear disarmament, the Review Conference will need to recognise the progress already made and focus on balanced and realistic future objectives which are capable of receiving the support of all groups of states. Flexibility will be required on the part of member states.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the Conference on Nuclear Arms Control concerning the future of the Nuclear Non-Proliferation Treaty. Extracts of the statement follow:
The NPT [Nuclear Non-Proliferation Treaty] is one of the most important, if not the most important, international arms control treaties in place. As the foundation of the global nuclear arms control regime, it has served our national interest well and served to enhance our security. The Government places a high national priority on its continuing strength.…
In examining the importance of the NPT and the progress that has been made on arms control, care should be taken to keep the Treaty in context.
The Treaty is not a stand-alone instrument. It is the centrepiece of a nuclear arms control regime consisting of a series of interlocking international treaties, arrangements, undertakings and norms aimed at halting the spread of nuclear weapons and advancing nuclear disarmament.
Indeed, a feature of the post-Cold War era has been that, where new challenges have emerged, the international community has strongly supported the strengthening of the existing non-proliferation framework and the identification of possible new measures. Australia has been at the forefront of efforts to address those challenges and we have worked tirelessly to promote activities in support of a strong over-arching regime.
We remain one of the most active proponents of the International Atomic Energy Agency’s strengthened safeguards system and played a prominent role in the negotiation of an Additional Protocol to improve and extend the IAEA’S inspection and access rights — we were in fact the first country to ratify an Additional Protocol Agreement. We particularly work to promote IAEA safeguards by conducting training programs in nuclear materials accountancy and control for participants from regional countries.
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I should also make mention of two other important elements of the global nuclear arms control regime which are strongly supported by Australia.
Nuclear Weapons Free Zones complement the NPT in limiting the threat posed by nuclear weapons. We welcome the opening for signature of two more treaties in Southeast Asia and Africa, building upon widely accepted existing pacts in our region and those in Latin America and the Caribbean. By the time all these zones take full effect, all land areas in the Southern Hemisphere will be included in nuclear weapon free zones, with the exception of a few islands in the Indian Ocean and South Atlantic.
The Nuclear Suppliers Group and the Zangger Committee, both of which provide guidelines on the export of items for nuclear use, serve to reinforce the non-proliferation objectives of the NPT. Australia is an active member of both groups.
I have outlined some of the successes of the nuclear arms control regime, but there have also been challenges.
The nuclear tests in South Asia last year struck at the international norm against proliferation. They also increased tensions and introduced the threat of a South Asian nuclear arms race. Australia has participated in meetings of the South Asian Task Force (SATF), established to coordinate the responses of countries concerned by the nuclear testing, and the next meeting is scheduled for 5 November.
We welcome constructive comments on arms control made by my Indian counterpart, Jaswant Singh, after the recent Indian elections, including that signature of the CTBT [Comprehensive Test Ban Treaty] was a high priority for the new Government. It is also vital that Pakistan join the CTBT.
We urge both countries to apply stringent export controls in support of global non-proliferation norms and to exercise restraint in missile development and testing. We would also hope that India and Pakistan join the NWS in placing a moratorium on production of fissile material, and participate in negotiations on an FMCT [Fissile Material Cut-Off Treaty].
In other parts of the world, there is a continuing need to remain vigilant in looking for clandestine nuclear weapons programs and in maintaining pressure on non-compliant states.
Australia adds its voice to others who have expressed the concern that, for nearly a year now, the IAEA has been unable to carry out inspection activity in Iraq in accordance with its mandate under Security Council Resolution 687. We welcome the IAEA’s commitment to resume verification in Iraq as soon as circumstances allow.
Similarly, we are concerned about the lack of cooperation from the DPRK in fulfilling its obligations under its safeguards agreement with the IAEA. It is crucial that the DPRK preserve all information needed by the Agency to be able to verify its initial inventory declaration.
Nonetheless, we welcome the recent apparent improvement in relations between the DPRK and other countries. We hope this will be reflected in reduced tensions in the region and improved North Korean cooperation with the IAEA. We also expect the continued effective operation of the Agreed Framework and the Korean Peninsula Energy Development Organisation (KEDO).
Another challenge to the nuclear arms control regime is reconciling some of the differences which arise from within the NPT regime itself.
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Another challenge for the international community in the new millennium will be to ensure that nuclear weapon reductions in Russia do not result in the diversion of nuclear weapons or fissile material. Australia, therefore, welcomes international assistance programs to deal with possible proliferation threats and, in particular, applauds the significant efforts the United States has made.
Finally, fresh concerns about the need for ballistic missile defences and the debate about their implications for the international security system, including the ABM treaty, are relevant to the NPT. We look to those principally involved to negotiate in good faith about their respective security concerns, and to ensure that these issues do not provide a reason for delaying progress with other established priorities.
Next year’s NPT Review Conference in New York provides an opportunity to address some of the challenges to the nuclear arms control regime, while also giving recognition to its tremendous achievements to date.
Australia will strive to achieve positive outcomes at the Conference that reinforce the NPT. Our interests and those of the wider international community are best served by a strong Treaty.
Australia recognises that it will be a difficult Review Conference and that some participants may have unrealistic expectations. We will be seeking a balanced review of the NPTwhich evenly covers all aspects of the Treaty — so that no single issue dominates to the detriment of others.
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We have already started consultations with countries across all political groupings in an effort to shape a favourable outcome at the Review Conference. We are emphasising to all states that they and the international community have a lot at stake in the NPT. We are also taking the opportunity of the bilateral nuclear arms control consultations which we undertake with a range of countries in the region, to shape a favourable outcome for the Review Conference next year.
We are also interested in the views of the wider community and the upcoming National Consultative Committee on Peace and Disarmament will provide a valuable forum for the exchange of such views.
Australia will be working to encourage further adherence to the Additional Protocol by those states which have comprehensive safeguards agreements with the IAEA. We will also be encouraging those states which are yet to conclude such agreements with the IAEA to do so without further delay.
… An enormous amount has been achieved, but we still have more work to do. The nuclear weapon states obviously have a particular contribution to make, but sustained effort by all parties to the Treaty is required if we are to succeed.
… these are difficult issues where there are many interlocking influences. As such, it is necessary to work simultaneously on a number of fronts to ensure the enduring strength of the nuclear arms control regime. The Australian Government is pursuing that aim actively, through our work on the CTBT, on safeguards, on the FMCT and in the lead up to the 2000 NPT Review Conference. We will also continue to play an active and constructive role in controlling other Weapons of Mass Destruction.
The Australian Government’s approach to nuclear arms control is guided by its commitment to the regime which for nearly 30 years has delivered significant and tangible security benefits to Australia, the region and the globe. We are committed to working with like-minded parties to ensure that it remains strong and effective in the next millennium.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the Comprehensive Test Ban Treaty in the course of a speech to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
The Comprehensive Test Ban Treaty [CTBT] has been long fought for by Australia and others in our region, the only region of the world in which all five Nuclear Weapons States have tested. During its negotiation Australia contributed two model texts and indeed snatched it from untimely death in the Conference on Disarmament by — if I do say so myself — a daring and imaginative feat of Australian diplomacy.But we still face many challenges in making the treaty truly effective. The CTBT’s normative value has been profoundly challenged by the nuclear tests in South Asia. The conditions required for its entry into force have not yet been met. And the vital task of building up the Treaty’s institutional fabric and verification machinery has slipped off the world’s political and budgetary radar screens.
All of these challenges must be addressed if the disarmament and non-proliferation achievements of the CTBT are to be consolidated and assured. At CTBT headquarters in Vienna, Australia has made a positive pain of itself on these issues — and I make no apologies for saying we will continue to do so.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the Conference on Nuclear Arms Control concerning the future of the Nuclear Non-Proliferation Treaty. An extract of the statement follows:
The newest element of the global nuclear arms control regime, and one to which I have made a strong personal commitment, is the Comprehensive Nuclear Test Ban Treaty. Australia played a major role in its conclusion by snatching it from the prospect of an untimely death in the Conference on Disarmament. I led international action to take the Treaty to the United Nations in New York where it was adopted by an overwhelming majority of 127 countries. It was very satisfying to be able to sign the CTBT for Australia on 24 September 1996.It goes without saying that Australia is deeply disappointed and concerned by the recent decision of the US Senate to vote against ratification of the CTBT. This is a decision which is difficult to understand and which works against the United States’ own security interests.
Australia joined many other countries, including two nuclear weapon states (the United Kingdom and France), in urging the Senate to ratify the Treaty. In the lead-up to the vote I wrote to a number of Republican Senators setting out the benefits to the United States, and to the world, of ratification and our Ambassador in Washington also spoke to a number of influential Senators urging them to support the Treaty. We cannot pretend that the Senate vote is not a significant setback to the CTBT. It will make it more difficult to persuade Russia and China to ratify the Treaty and to persuade India and Pakistan to sign. But the CTBT is not dead — it remains a powerful international norm against further nuclear testing and with 154 state signatories it is already rapidly approaching the status of a universal treaty. …
Significant progress has also been made in establishing the International Monitoring System, which is a key component of the Treaty’s verification machinery. We should also not forget that all five nuclear weapon states have signed the Treaty, and therefore have an obligation under international law not to frustrate its purpose before it enters into force.
Australia will continue to work to bring the Treaty into force. We were an active participant at the recent Article XIV Conference in Vienna which discussed measures to facilitate this goal. We will work with others to secure further signatures and ratifications by the 44. We will also continue to encourage the US Administration to mobilise the very significant support for the CTBT amongst the people of the United States, so as to convince the Senate of its worth. Finally, before leaving the CTBT, I should underline President Clinton’s commitment to continuing the policy observed by the United States since 1992, of not conducting nuclear explosive tests.
On 7 October 1999, a statement was delivered by Australia to the Conference on Facilitating the Entry into Force of the Comprehensive Nuclear Test Ban Treaty.
Ratification by all the Nuclear Weapon States is an urgent priority, not just because they are among the 44 [whose ratification is required for entry into force], but because this will set a powerful example that others will follow.We therefore warmly welcome the ratification of the Treaty last year by France and the United Kingdom. We also take note that the United States Senate is embarking on its consideration of ratification of the CTBT. We join the international community in urging bipartisan support in the United States for ratification. We hope that this conference will serve as a timely reminder to the American people, and their parliamentary representatives, of the importance of the CTBT to the nuclear non-proliferation regime and to the security interests of all countries. We note also that the Governments of China and the Russian Federation have recommitted themselves to ratification of the CTBT and we urge them to do so as soon as possible.
India and Pakistan are also among the 44 states whose ratification is needed for the Treaty to enter into force. Australia has consistently called on both those countries not to conduct any further nuclear tests and to adhere to the CTBT as soon as possible. There are, of course, other countries which have failed to sign or have not yet deposited their instruments of ratification, some of which are of particular concern in terms of their nuclear proliferation risk. Australia also urges all these countries to sign and ratify the CTBT quickly so that the Treaty can be implemented without further delay.
Australia draws encouragement from the progress made by the CTBT’s Preparatory Commission to establish the International Monitoring System as a key component of the Treaty’s verification machinery. This global monitoring system represents a large investment by the international community. When completed it will consist of 170 seismological, 60 infrasound, 11 hydroacoustic and 80 radionuclide stations — supported by 16 radionuclide laboratories. A global satellite communications system and an international data centre in Vienna will complete the network. Given our size, and geographic location, Australia will host 21 of these monitoring stations and laboratories. Australia has continued to be a strong advocate for the Treaty within the Asia-Pacific region and is ready to provide practical and technical assistance at the appropriate stage in the development of the IMS.
This system requires a large capital investment and will generate significant annual running costs. But without adequate and rigorous verification measures the CTBT would be a much weaker Treaty, a much weaker guardian against further nuclear testing. We must now honour the responsibility that we willingly shouldered three years ago in adopting the treaty, and to ensure that the international monitoring and verification regime is operational and fully effective by the time of entry into force.
To conclude, Mr President, the project on which the international community first embarked nearly one half century ago is now, at this dawn of another century, finally in sight of attainment. We are optimistic, but we do not underestimate the obstacles. Because of that, we must do all we can to encourage the ratification process, including through a further review to be conducted at a second entry into force conference, perhaps early in 2001.
On 7 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the Comprehensive Nuclear Test Ban Treaty. An extract of the release follows (FA 109):
Australia today called for the early entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT) and urged those countries yet to ratify the Treaty to do so as soon as possible.Speaking in Vienna on my behalf, DFAT Deputy Secretary Miles Kupa said the CTBT was a milestone in international efforts to address the global threat posed by nuclear proliferation. He said it was a key component of efforts to eventually eliminate nuclear weapons.
Mr Kupa was delivering Australia’s national statement to the ‘Conference on Facilitating the Entry into Force of the Comprehensive Nuclear Test Ban Treaty,’ being held in Vienna from 6-8 October.
Australia played a significant role in the negotiation and acceptance of the CTBT, most particularly in 1996 when I led the exercise which took the CTBT from the Conference on Disarmament, where it had stalled, to the UN General Assembly where it received overwhelming support from UN members. The Treaty has now been signed or ratified by 154 states.
The CTBT will ban for all time any further explosive nuclear tests. The negotiation and entry into force of such a treaty has been a long-standing Australian foreign policy objective.
Before the CTBT can enter into force, it must be signed by 44 countries named in the Treaty. This list includes the five Nuclear Weapon States, as well as countries such as India, Pakistan, Israel and the DPRK. Ratification of the Treaty by the Nuclear Weapon States is an urgent priority because this will set an example others, such as India and Pakistan, hopefully will follow.
I welcomed the ratification of the Treaty last year by France and the United Kingdom. Australia joins the international community in urging bipartisan support in the United States when the U.S. Senate votes on ratification on 12 October. Australia also urges China and Russia to ratify the CTBT as soon as possible.
I am particularly pleased with the progress made in establishing the International Monitoring system, which will be a key component of the CTBT’s verification machinery.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in the course of a speech delivered to the conference for the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
[The Fissile Material Cut-Off Treaty (FMCT)] … will be a difficult negotiation and a challenging treaty to implement effectively. But the effort will be worth it. Why? Because an FMCT will be another nail in the coffin of the nuclear arms race and the vertical proliferation of nuclear weapons. It will require the Nuclear Weapons States to make good their NPT commitment to pursue negotiations related to the cessation of the nuclear arms race. It will also cap the production of fissile material by other nuclear capable states. And a fissile material cut-off treaty is a central and indispensable element in any verification regime for a world free of nuclear weapons.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech to the Conference on Nuclear Arms Control. An extract follows:
Another key element of the nuclear arms control regime will be the conclusion of a Fissile Material Cut-Off Treaty (FMCT). The 1995 Non-Proliferation Treaty Review and Extension Conference identified the negotiation of an FMCT as one of the most urgent disarmament and non-proliferation steps the international community should take. We remain strongly committed to an FMCT and are working to have the Conference on Disarmament commence negotiations on it as soon as possible. Australia has been prominent in working on technical aspects of an FMCT.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech to the conference on the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. The following is an extract of the speech concerning biological weapons:
There is perhaps no better reminder of the challenges to effective disarmament and arms control created by a changing global security balance and rapidly advancing technology than the Biological Weapons Convention. Concluded in 1972, at the height of the Cold War, the Biological Weapons Convention was the first major multilateral weapons of mass destruction disarmament treaty. But advances in biotechnology, making it cheaper and easier to develop, produce and conceal biological weapons, have revealed the treaty’s fundamental flaw — the lack of a verification mechanism.The international community has responded to this deficiency by negotiating a protocol to the BWC that would provide a credible and effective verification mechanism. Australia is taking a leading role in these negotiations, which must address complex technical issues, accommodate future advances in biotechnology, and find a delicate balance between effective verification and the need to avoid hampering or interfering with the legitimate biotechnology industry.
Australia is pursuing an initiative to accelerate the negotiations and we convened an informal ministerial meeting last September in New York to inject greater political impetus into the process. We are following this up with a high level meeting later in the year. The Government’s initiative also has a domestic angle, and I am pleased to announce today the establishment of a National Consultative Group of biotechnology industry representatives, academics and other interested parties to provide input to our negotiating strategy.
On 11 March 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the National Consultative Group on the Biological Weapons Convention (FA20):
Today I hosted the first meeting of the National Consultative Group on the Biological Weapons Convention (BWC) in Canberra. Comprised of experts from industry, academia and the scientific and defence communities, the National Consultative Group convened to examine ways to make a BWC verification protocol robust and workable, without interfering unduly with the operations of the biotechnology industry.The outcomes of today’s meeting will help inform the Government’s approach to the protocol negotiations underway in Geneva.
Members of the Group agreed to a trial facility visit that will provide the Government with practical feedback on how draft provisions of the verification regime might affect the operations of industry.
The establishment of the National Consultative Group is a significant element in the Government’s initiative to strengthen the Biological Weapons Convention. It demonstrates the seriousness of Australia’s commitment to reduce the threat to global security posed by biological weapons
The other major part of the Government’s initiative took place in September 1998, when Australia convened an international meeting of ministers in New York to discuss ways of accelerating the protocol negotiations. At that meeting, 57 countries co-sponsored a declaration calling for the conclusion of negotiations as soon as possible. The meeting also agreed on the value of close dialogue and cooperation with industry to enable it to contribute to the development of an effective and credible protocol.
As the international community moves closer to agreement on the text of a verification protocol, Australia will continue to take an active role. Working towards an effective ban on biological weapons as soon as possible is high on our agenda for ensuring regional stability and global security.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the Chemical Weapons Convention in the course of a speech delivered to the conference on the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
… The Chemical Weapons Convention (CWC) has a unique status amongst arms control and disarmament regimes as the first verifiable multilateral treaty that completely bans an entire class of weapons. It is a treaty we of course understand well. Australia played an instrumental role in bringing negotiations on the Convention to a conclusion through the introduction of a compromise text and have been active ever since in seeking to promote widespread and full compliance with its provisions.Looking towards the future, there are good grounds for optimism that the effectiveness of the Convention will continue to increase. But vigilance will need to be maintained if we are to ultimately achieve a world free of chemical weapons.
On 15 January 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release announcing Australia’s ratification of the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (FA3):
It is with great pleasure and pride that I announce that Australia has today [14 January 1999 New York time] ratified the Ottawa landmines ban Convention which is aimed at helping to rid the world of the scourge of landmines.…
This is an historic occasion which signals again the Government’s strong commitment to eliminating landmines, a weapon of war which had degenerated into an appalling and vicious form of civilian terror.
Australia now looks forward to participating in the First Conference of States Parties to the Ottawa Convention to be held in Maputo, Mozambique 3-7 May 1999. Participants at the Maputo Conference will focus on increasing adherence to the Convention, putting in place measures to ensure compliance with the Convention’s provisions and further action by the international community to assist the rehabilitation of landmine victims and to remove mines still in the ground.
Australia encourages those countries which have not signed or ratified the Convention to do so quickly. In the absence of universal adherence to the Ottawa Convention, the Government will continue to pursue practical and realistic complementary strategies to strengthen the global regime against landmines. These include:
• encouraging broader adherence to revised Protocol II on landmines of the Inhumane Weapons Convention; and
• the transfer, export and import of landmines. This action is crucial because it targets countries which remain outside the Ottawa Convention, will help to bring them at least some way towards the goal of a total ban, and will make a practical difference to the availability of landmines worldwide.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the conference for the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. The following is an extract of the speech concerning anti-personnel land mines:
… Australia has been active in taking up the fight against landmines, and is determined to achieve a comprehensive and lasting solution to the global landmines problem. On 14 January this year Australia ratified the Ottawa landmines ban Convention.We are also pursuing complementary international strategies to strengthen the global regime against landmines including: to encourage broader adherence to revised Protocol II on landmines of the Inhumane Weapons Convention; and to continue to lead efforts in the Conference on Disarmament for a universal ban on landmines transfers. In particular we are seeking the reappointment of Australia’s Ambassador to the Conference on Disarmament as the special coordinator on landmines.
On 1 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the entry into force in Australia of the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (FA74):
It is with great pleasure that I announce the entry into force for Australia of the Ottawa Convention on landmines. The Australian Government ratified the Ottawa Convention on 14 January 1999. Under the Convention’s provisions, our entry into force did not take effect until today.The Australian Government has a serious long-term commitment to achieving a world without landmines. We are committed to the goals of the Ottawa Convention and complementary international efforts to rid the world of the scourge of landmines. To these ends, Australia participated actively at the First Meeting of States Parties to the Ottawa Convention, held in Maputo, Mozambique in May.
The Government also encourages broader adherence to revised Protocol II on landmines of the Inhumane Weapons Convention and continues to encourage efforts in the Conference on Disarmament in Geneva for a ban on the transfer of landmines. Negotiations for such a ban would include a number of key countries which are not party to the Ottawa Convention.
I am particularly pleased that the Maputo meeting spurred further adherence to the Ottawa Convention. Of the 135 countries which have signed the Convention, 81 have now ratified it. Ratified states have forsworn forever the use, stockpiling, production and transfer of anti-personnel mines. The Australian Government encourages those countries which have not yet signed or ratified the Convention to do so quickly, with the aim of making the Convention universal.
Despite these efforts, there is an ongoing need for concerted and coordinated international action to combat the debilitating humanitarian and socio-economic effects of landmines. The Government is contributing significantly to international mine action efforts through a commitment of over $100 million for demining victim assistance and related activities in the decade to 2005.
As part of these efforts, the Government recently provided an additional $2.5 million to the UN Accelerated Demining Program (ADP) in Mozambique to support the ADP’s operations and expand its mine survey and clearance activities.
With the entry into force for Australia of the Ottawa Convention, Australia’s unilateral suspension of the Australian Defence Force’s operational use of anti-personnel landmines, announced on 15 April 1996, will no longer apply. The unilateral suspension has been superseded by the domestic legislation enforcing Australia’s obligations under the Ottawa Convention.
On 23 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release outlining Australia’s policy on the proliferation and misuse of small arms. An extract of the media release follows (FA82):
I have today announced a policy framework on Australia’s contribution to address the problems caused by the proliferation and misuse of small arms in many parts of the world.The misuse of small arms contributes to the breakdown of societies across the globe. As a result, prospects for good governance, observance of human rights and economic development are damaged. Citizens of the world’s poorest countries suffer the most. Our own region is not immune to these problems.
The international community is increasingly engaged in efforts to address the small arms problem. For example, the EU, the Organisation of American States, and a group of 16 Western African states have been involved in efforts to monitor and limit the production and transfer of small arms. Australia supports these efforts and many others around the world to limit destabilising accumulations and transfers of small arms.
The problems caused by the misuse of small arms are not easily solved. There are many issues to be addressed — illegal trafficking in small arms, legal production and use, stockpiling, law enforcement, disarmament, arms control, demobilisation and human rights, among others.
Australia’s policy recognises, therefore, that complementary efforts across a number of fronts, and at the national, regional and international levels, will be needed to generate an effective approach to the problems caused by small arms. Enhanced regional action will be particularly important in providing the building blocks for broader international effort.
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Australia’s policy is not intended to impede the lawful use of firearms by legitimate owners and does not represent a change in the Government’s current position on national gun controls.
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Australia’s ApproachThe uncontrolled proliferation and misuse of small arms contribute to the breakdown of civil society in many regions, including in the Asia Pacific. Most often, the world’s poorest countries are the worst affected.
Problems associated with small arms directly affect the prospects for good governance, observance of human rights, human security and socio-economic development in those countries.
Australia and other members of the international community recognise the need for early, concerted action to address the problems posed by small arms.
Due to the complex nature of the small arms issue, a single, all-encompassing approach would not be effective. Australia believes that complementary efforts at national, regional and international levels will help generate an effective response to the small arms issue. In this respect, enhanced regional actions could serve as building blocks for a broader international effort.
Australia also has in place strict and comprehensive controls and licence procedures to monitor the import and export of small arms. These controls regulate and constrain the legal trade in small arms, which in turn helps to prevent illicit trafficking.
All proposed exports from Australia of defence and related goods, including small arms, are subject to comprehensive, case-by-case government review and licence procedures. Licence approvals are issued only where export is consistent with Australia’s international obligations and broader interests, including security and human rights considerations.
Australia’s strict policy on illegal arms transfers is illustrated by the various conditions under which exports of military small arms and military goods are expressly prohibited
• to countries against which the United Nations Security or United Nations General Assembly have imposed a mandatory arms embargo
• to countries with policies or interests which are hostile to the strategic interests of Australia or its friends and allies
• to governments that seriously violate their citizens’ rights, unless there is no reasonable risk that the goods might be used against those citizens
• where foreign and strategic policy interests outweigh export benefits, and
• if the export would be reasonably judged to affect adversely Australia’s military capability.Australia
has also decided that in certain circumstances it may be necessary to prevent the export of non-military lethal goods (including certain types of small arms, such as hunting or sporting weapons) to particular destinations on foreign policy, defence or other national interest grounds. The export of non-military lethal goods to any country is prohibited unless an export licence or permit has been issued.
On 23 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release outlining Australia’s policy on the proliferation and misuse of small arms. An extract of the media release concerning regional measures follows (FA82):
Through AusAID (the Australian Agency for International Development), Australia funds many projects which address the humanitarian needs of conflict-affected communities, particularly in our region.These have included demobilisation and re-integration of ex-combatants into productive civilian life at the end of armed conflict (Cambodia, Philippines); promotion and assistance with post-conflict reconstruction (Cambodia, Bougainville); reform and capacity-building of police, judicial and penal systems in conflict-affected areas (Cambodia, PNG); and assistance to promote respect for international humanitarian law regarding the use of small arms (PNG, Rwanda, Burundi).
We will be alert to the need for similar requirements in East Timor in its present period of transition.
Australia participates in a sub-committee of the South Pacific Forum (South Pacific Chiefs of Police Conference) which is developing a common regional approach to weapon control, focusing on the illicit manufacture of, and trafficking in, firearms, ammunition, explosives and other related materials.
Australian law enforcement agencies are working in consultation with their Papua New Guinean counterparts on ways of restricting illicit trade in small arms between our countries.
Australia supports the United Nations Register of Conventional Arms by submitting annual returns to the Register, including voluntary additional information. Australia also encourages our ASEAN Regional Forum (ARF) partners to submit annual returns to the Register. The ARF region has the best record internationally in terms of submitting regular, punctual returns. In line with national security considerations, Australia will look positively at proposals to expand the Register’s scope to include small arms as a means of increasing transparency in the licit small arms trade.
We will also explore the scope for activities to reduce small arms proliferation which Australia could support under the auspices of the ARF.
On 23 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release outlining Australia’s policy on the proliferation and misuse of small arms. An extract of that media release concerning the measures at an international level follow (FA82):
Australia is a key player in, and contributor to, international efforts to address the regulation of small arms.Australia is participating actively in negotiations in Vienna for a protocol on Illegal Manufacturing of and Trafficking in Firearms, as part of the work of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime. There have been two meetings of the Ad Hoc Committee, in January and March 1999. The target date for completion of these instruments is end-2000. Australia is working towards a protocol which promotes and facilitates cooperation among State Parties with respect to the illicit manufacturing of and trafficking in firearms, ammunition and related materials.
Australia promotes increased transparency in conventional arms transfers and more effective international controls through membership of the Wassenaar Arrangement.
Australia is a strong supporter of the draft Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which aims to raise the minimum age limit for recruitment into the armed forces and participation in armed conflict. At present, the limit is set at 15 years of age. We will continue to participate actively in the negotiation of the Optional Protocol, and to support 17 years as the minimum age for recruitment into the armed forces.
Australia is also one of the strongest supporters of the development of the Statute of the International Criminal Court (ICC), which is a major international contribution to combating gross violations of international humanitarian and human rights law. The Statute gives the Court jurisdiction over war crimes, which includes in its definition the conscription or enlistment of children under the age of 15 years into armed combat.
Australia supports the efforts of the United Nations Group of Governmental Experts on Small Arms, and endorsed the recommendations of the UN Panel of Governmental Experts (which preceded the Group) in its August 1997 report. The recommendations on enhancing cooperation among regional organisations and creating a database of authorised producers and traders, in particular, offer scope for future action.
In recognition of the increasing prominence of small arms on the international arms control agenda, and the recognised need for concerted action to deal with the issue, Australia will participate in an international conference on the illicit arms trade in all its aspects which is planned to be held by 2001.
In the lead-up to the next Commonwealth Heads of Government Meeting to be held in South Africa in November 1999, Australia will explore options for raising the small arms issue at the meeting to build on the Commonwealth’s demonstrated experience in strengthening legal systems, law enforcement and the security of small island states.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a statement to the 54th Session of the United Nations General Assembly. An extract of the statement concerning humanitarian intervention follows:
We must … be able to ensure that the UN can intervene quickly when rapidly deteriorating conditions threaten entire nations.That was a lesson of Rwanda.
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As the Secretary-General suggests, changing international circumstances — including the spread of notions of individual rights and the idea that the international community has a responsibility to respond effectively to humanitarian crises — is challenging traditional notions of national sovereignty.
The UN needs to focus on these challenges, and begin the process of defining when and how the organisation should act in the face of humanitarian crises.
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In days gone by, the nations of the world may have been forgiven if they acted too slowly in the face of a humanitarian crisis — tales of atrocities, famine and natural disaster may have taken weeks or months to filter out from the more inaccessible areas of our globe.
Today, those same stories are likely to be on our television screens within hours, or even minutes.
In the face of such indisputable evidence, governments will be forced to act.
Those that resist will have to face a domestic and international audience as well informed as they.
That is the kind of environment in which the United Nations will increasingly have to function, where the results of inaction will be seen instantly, and the consequences of failure subject to instant and very telling scrutiny.
Some will be concerned about interference in national sovereignty and obviously that is an important and legitimate concern.
Others will say that the greater principle is that of natural human solidarity.
But, whatever view is correct, this environment is a fact we now have to deal with, whether we like it or not.
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If we genuinely wish to uphold the Charter, if we really do want to maintain international peace and security, help develop our economic and social strengths, and promote respect for human rights and fundamental freedoms, surely we can start by upholding the most basic right of all - that of life.
In the face of acts of genocide, or of human rights abuses on an horrendous scale, the nations of the world must act.
On 29 October 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech to the Griffith Asia Pacific Council. An extract of that statement concerning United Nations intervention follows:
The loss of life in East Timor after the announcement of the result of the autonomy vote has underlined the need to act quickly when humanitarian disaster looms. With that in mind I have urged the United Nations to reconsider its approach to humanitarian intervention — in such circumstances, every day counts. It may take time to convince doubters at the UN, but I am convinced that a humanitarian and sensible compromise can be arranged on these issues, one that would allow much more rapid action to safeguard populations at significant risk.
On 10 November 1999, a statement addressing human rights questions was delivered by the Australian Ambassador and Permanent Representative to the United Nations in New York, HE Penny Wensley, to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of that statement follows:
Australia believes that the maintenance of global peace and security through humanitarian intervention is a fundamental task before the United Nations. The concept of humanitarian interventions of course sits uneasily with notions of sovereignty and national interest. Australia acknowledges this reality, but also considers that one of the challenges for the United Nations is to promote acceptance of a broad view of national interest. This view takes as a starting point that national interests are well served by the adoption of policies that conform with universally accepted human rights norms. When these norms are disregarded and widespread human rights violations occur, it is also in the interests of members of the international community for the United Nations to be in a position to respond effectively when called upon to do so. Deep community interest in human rights protection will ensure this continues to be the case.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech to the conference for the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. An extract of the statement concerning peacekeeping follows:
… Often we cannot prevent a conflict. We are therefore left with the task of trying to stop it as quickly as possible. And it is here that peace-keeping — under the right conditions — can play a critical role.Peace-keeping, and in particular, the peace-keeping activities of the UN often get bad press. In countless instances, however, peace-keeping has been the difference between war and peace. It is complex, it is difficult and it is very frequently thankless. But if we did not think it worthwhile we would not have put Australian personnel in the firing line in nineteen of the United Nations’ forty three peace keeping operations around the world.
Clearly in deciding on whether to participate in a peacekeeping operation certain conditions need to be met — not just in terms of providing for the safety of the peace-keepers but also to give the mission a good chance of succeeding. We therefore expect missions to have a specified objective, to be adequately resourced and to have a well defined duration and scope.
On 11 May 1999, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Mark Latham concerning the establishment of a peacekeeping force in East Timor. An extract of the Minister’s response follows (House of Representatives, Debates, 11 May 1999, p 5104):
Australia’s position has been to advocate for involved parties to first pursue dialogue before recourse to a peacekeeping presence. Peacekeeping operations have often been seen as a panacea by parties in conflict, and in that way, can undermine rather than advance the process of conflict resolution. We have argued there is no point contemplating peacekeeping operations in the absence of a settlement between parties to the dispute. Successful peacekeeping requires a peace agreement to keep, as well as the support of the wider UN membership for the establishment of such a force. For as long as East Timor is under Indonesian sovereignty, such an operation would also require Indonesia’s consent and compliance. For all of these reasons, it has been widely agreed that discussion of peacekeeping is premature.The Government has made clear in its discussions that should a consensus form to insert a UN transitional arrangement, we would be willing to assist with a substantial contribution, given our role as a major regional country. We would work to ensure that any UN effort is effective, that its objectives are achievable and that the mission has a clear sunset clause.
On 12 October 1999, the National Interest Analysis for the Exchange of Notes Constituting an Agreement between the Government of Australia and the Multinational Force and Observers concerning Australia’s participation in the Multinational Force and Observers, was tabled in both Houses of Parliament. An extract of the National Interest Analysis follows:
The MFO [Multinational Force and Observers] is an international organisation, created by the United States, Israel and Egypt to oversee the Camp David Accords of September 1978 and the Treaty of Peace of 26 March 1979 between the Arab Republic of Egypt and the State of Israel (the Protocol). Under the Accords, Israel withdrew from the Egyptian territory in the Sinai it had occupied since the 1967 Arab-Israeli War.
The MFO is a confidence building measure in the relationship between Israel and Egypt. It allows both countries to pursue other aspects of the Middle East Peace Process without being concerned with their common border.
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The proposed Agreement will continue Australia’s commitment and support for the MFO for the period from January 1998 until the withdrawal of the Australian Contingent in accordance with the terms set out in the Agreement. Under the Agreement, Australia shall provide 12 months’ prior written notice of its intention to withdraw from the agreed mission or from the MFO.
Australia’s interest in the region is based on seeking to achieve an enduring and comprehensive settlement of the Arab-Israel dispute through which all countries of the region, including Israel, may live in peace and security. Participation in the MFO reaffirms and demonstrates Australia’s support for peace in the Middle East in a practical way.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the conference for the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. An extract of the speech follows:
We should not however limit ourselves to the traditional notion of peace-keeping in looking at mechanisms for ending conflict. The Australian-led Peace Monitoring Group on Bougainville continues to be an excellent example of what can be achieved through an innovative and thoughtful approach to the settlement of disputes. The PMG has made an invaluable contribution to the Bougainville Peace Process, providing the parties with the confidence to negotiate and work through their problems and providing a useful model for the peaceful settlement of disputes in other parts of the world.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered Australia’s statement to the 54th United Nations General Assembly. The following is an extract of the statement concerning the peacekeeping operation in East Timor:
… the Security Council delivered a strong resolution and a positive mandate for peacekeeping operations, a mandate that will ensure that the will of the East Timorese people — as expressed in the 30 August vote — will be carried out.We in Australia have been very heartened by the positive international response to the call for military forces to make up INTERFET and its successor peacekeeping force.
As I have mentioned, the INTERFET forces — under the command of Major General Peter Cosgrove — have begun to restore order in East Timor.
There are currently some 3,650 personnel on the ground, drawn from a range of countries, with strong representation from our own Asia-Pacific region.
The large number of countries participating in the force, and their wide geographical representation, is evidence of the widespread international determination to see a peaceful and orderly transition in East Timor’s status.
On 29 September 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a statement to the 54th United Nations General Assembly concerning East Timor. An extract of the statement follows:
UNAMET carried out its work at great risk to the staff involved and, tragically, several locally engaged employees paid for their dedication with their lives.That fact, Mr President, is a stark reminder of the great personal cost that is often associated with the UN’s operations, and a reminder to us all of the need to make the security and personal safety of UN staff one of our most urgent priorities.
The UN must rely on its staff to carry out its various mandates — a threat to the person of a UN staff member must be treated as a threat against the United Nations itself.
It is a matter of unfortunate record that the upsurge of violence in East Timor after the ballot on 30 August swept up not just UN staff members, but hundreds and thousands of East Timorese.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented a speech to the conference for the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. An extract of the speech follows:
… There is also a need to ensure that the disputes which inevitably arise in the conduct of international relations do not get to the stage where violence is the only or preferred option. The peaceful settlement of disputes remains the ultimate, if difficult aim, of any attempt to strengthen international security.Australia has been a strong and consistent supporter of preventative processes, particularly in our region. The end of the Cold War created a complex and uncertain security environment in the Asia Pacific region — the Asian economic crisis could make it even more so. But at the same time the emergence of more cooperative relations between the major powers has also provided new opportunities for the development of mechanisms to assist in the peaceful settlement of disputes in our own region.
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Australia believes that the ASEAN Regional Forum (ARF) can also play an important role in developing preventive approaches at the regional level. The focus of ARF activity to date has been on confidence building and this will continue to be a core component of its work. But if the ARF is to become, over time, a meaningful vehicle to enhance the peace and prosperity of the region, it will need to develop a capacity for preventive diplomacy.
This is still very much new territory and we should not expect too much too soon. It will take time to build confidence among the diverse ARF membership that preventive diplomacy measures can be developed which are appropriate to the needs of the region and which will not impinge on national sovereignty. Reflecting the nature of the Forum, preventive diplomacy in the ARF is likely to take on its own distinctive characteristics.
One idea which Australia has put forward is to develop the role of the ARF Chair to provide a ‘good offices’ capacity. In the event of a dispute this might allow the Chair — or a nominee of the Chair — to undertake activities such as fact-finding, mediation and facilitating information exchange. There is a long road ahead. But proposals such as this could give the ARF a modest but meaningful capacity for contributing to the avoidance or management of disputes in the years ahead.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, delivered a speech to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne. The following is an extract of the statement concerning the ASEAN Regional Forum:
Australia believes that the ASEAN Regional Forum (ARF) can also play an important role in developing preventive approaches at the regional level. The focus of ARF activity to date has been on confidence building and this will continue to be a core component of its work. But if the ARF is to become, over time, a meaningful vehicle to enhance the peace and prosperity of the region, it will need to develop a capacity for preventive diplomacy.This is still very much new territory and we should not expect too much too soon. It will take time to build confidence among the diverse ARF membership that preventive diplomacy measures can be developed which are appropriate to the needs of the region and which will not impinge on national sovereignty. Reflecting the nature of the Forum, preventive diplomacy in the ARF is likely to take on its own distinctive characteristics.
One idea which Australia has put forward is to develop the role of the ARF Chair to provide a ‘good offices’ capacity. In the event of a dispute this might allow the Chair — or a nominee of the Chair — to undertake activities such as fact-finding, mediation and facilitating information exchange. There is a long road ahead. But proposals such as this could give the ARF a modest but meaningful capacity for contributing to the avoidance or management of disputes in the years ahead.
On 27 July 1999, the Minister for Foreign Affairs, Mr Alexander Downer, presented the opening statement to the thirty-second ASEAN Post-Ministerial Conference in Singapore. The following is an extract of the statement concerning the ASEAN — Australian Forum:
The many diverse avenues we have established with ASEAN, in particular the AFTA-CER linkages for Australian and ASEAN business to advance trade and investment objectives, has reinforced our view to reinvigorate the ASEAN-Australian Forum (AAF). We believe that the Forum would be more constructive, for both sides, if we could focus our discussions on the major political, economic and security issues facing our region and their impact on ASEAN-Australia relations. The AAF should, we believe, evolve into an overview and coordinating body, to review developments in the ASEAN-Australia relationship, but not to work directly on detailed technical matters. We are not seeking to raise the level of ASEAN representation, but simply to ensure that ASEAN could be represented by officials able to exchange views freely on these issues. These suggestions on the future of the AAF are offered in the spirit of friendship and cooperation to help enliven and enhance the process which has been central to our relations with ASEAN.
On 12 October 1999, the Agreement between the Government of Australia and the Government of New Zealand concerning the Transfer of Uranium, done at Canberra on 14 September 1999, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
Australian Government policy is that uranium exports should be covered by a bilateral safeguards agreement. These agreements establish and ensure conditions for transfer consistent with Australia’s commitment to the non-proliferation of nuclear weapons and Australia’s related treaty obligations. In so doing, these conditions also protect Australia’s security interests.The bilateral safeguards agreements Australia enters into generally provide for the application of International Atomic Energy Agency (IAEA) safeguards and prior Australian consent for re-export, high enrichment or reprocessing of Australian uranium. This is to ensure that Australian uranium is properly monitored through the nuclear fuel cycle and is prevented from being used for any military or explosive purpose, or in any other way contrary to Australia’s obligations under the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the obligations Australia will assume once the 1996 Comprehensive Nuclear-Test Ban Treaty (CTBT) enters into force. Australia currently has fourteen such agreements in place.
The new Agreement under consideration was negotiated as the result of a New Zealand request for an ongoing supply of small amounts of uranium to be used in the commercial production of tinted glass in New Zealand. It will open up a new, albeit small, market for Australian uranium exporters. The intended non-nuclear use of this uranium differentiates it from Australia’s usual uranium exports, which are multiple tonne shipments destined for use in nuclear power reactors. The maximum exportable quantity of uranium set by the proposed Agreement (200 kg per year, Article II) is also insignificant in proliferation terms. …
Nevertheless, the Australian Government attaches considerable importance to transparency in relation to uranium export issues and it is appropriate that ongoing uranium exports to New Zealand be covered by a bilateral safeguards agreement. The Agreement has been modified from our standard safeguards agreement to reflect the small quantities of uranium involved, its intended non-nuclear use and the absence of IAEA safeguards inspections in New Zealand, due to the absence of nuclear activities there (although New Zealand has brought into force an Additional Protocol to its Agreement with the IAEA, allowing the IAEA to make inspections and broad state evaluations). Australia’s bilateral safeguards agreements for industrial-scale uranium exports routinely provide for: prior Australian consent rights for high enrichment (to twenty per cent or more in the isotope U-235), reprocessing and re-transfers to third countries; IAEA safeguards coverage of Australian nuclear material for its full life or until legitimately removed from safeguards; physical protection standards; and fallback safeguards in the event that IAEA safeguards cease to apply for some reason.
The conditions imposed by the Agreement on the transfer of uranium from Australia to New Zealand are consistent with both Governments’ commitment to nuclear non-proliferation, including their obligations under the NPT and the CTBT.
On 16 February 1999, the Agreement between the Government of Australia and the Government of New Zealand concerning the Status of their Forces, done at Melbourne on 29 October 1998, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
A Status of Forces Agreement (SOFA) is an internationally recognised means of handling the issues arising out of the presence of one country’s visiting forces in the territory of another country. Australia has a SOFA concerning United States forces in Australia, a reciprocal SOFA with Papua New Guinea and a SOFA with Singapore to complement the Five Power Defence Arrangements (FPDA) Agreement with Singapore which provides many SOFA-type provisions for Australian forces in Singapore. In addition, a reciprocal SOFA with Malaysia (which does not extend to FPDA activities which are covered by the FPDA Agreement with Malaysia) has been signed and was tabled in the Commonwealth Parliament on 11 November 1998.Australia’s defence relationship with New Zealand is one of our oldest and remains one of our most significant. The presence of large numbers of New Zealand defence personnel in Australia and Australian defence personnel in New Zealand reflects this. However, we have never concluded a SOFA of general application with New Zealand. The proposed SOFA will be a significant symbol of the continuing defence relationship between the countries. It will also facilitate a range of bilateral defence activities by establishing standard conditions for the presence of New Zealand and Australian visiting forces on issues including jurisdiction, claims, immigration requirements and customs duties.
On 18 February 1999, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the International Criminal Court in the course of a speech presented to the Commemoration of the Centenary of the 1899 Hague Peace Conference at the University of Melbourne:
… I believe we have an opportunity to establish, through the creation of an International Criminal Court, a permanent framework to deal with those most serious crimes known to humanity which have so blotted our recent history.By establishing a permanent court to try such crimes we help create a dynamic which carries with it its own momentum for ongoing investigation and accountability. It is not just a mechanism for punishment, it is a way for the world to say loudly and clearly that such acts of barbarism will not be tolerated, that those who perpetrate such acts will not be able to do so with impunity.
Australia was actively involved in the Rome Diplomatic Conference which adopted a Statute for the International Criminal Court in July last year. And we will continue to participate in the work of the Preparatory Commission of the Court, established to undertake work on the practical arrangements for the Court’s coming into operation. Australia is committed to the Preparatory Commission fulfilling its mandate as a matter of priority.
On 12 December 1999, the Minister for Foreign Affairs, Mr Alexander Downer, the Minister for Defence, Mr John Moore and the Attorney-General, Mr Daryl Williams, issued a joint media release announcing Australia’s decision to ratify the Statute of the International Criminal Court (FA 135):
The Minister for Foreign Affairs, the Attorney-General and the Minister for Defence have today announced that the Government has decided to ratify the Statute of the International Criminal Court, which was adopted at the Rome Diplomatic Conference in 1998.‘The establishment of an effective international criminal court is a prime foreign policy goal of this government, and one in which I have taken a strong personal interest. Given Australia’s leading role in promoting the Court, it is fitting for Australia to be making an early commitment to ratifying the Statute,’ said the Minister for Foreign Affairs, Alexander Downer.
This milestone decision reflects Australia’s strong commitment to the Court. Australia demonstrated this commitment by playing a significant and influential role in the negotiations leading up to the adoption of the Court’s Statute. The group of like-minded delegations at the Rome Conference played a critical role in the successful outcome of that Conference.
The establishment of the Court is strongly supported within the Australian community.
‘I am very pleased that Australia will be ratifying the Statute,’ said Attorney-General, Daryl Williams. ‘I will be moving to introduce legislation necessary to reflect Australia’s commitment to the Statute. When established, the Court will be capable of bringing to justice those persons who commit the grave crimes within its jurisdiction and, by doing so, it will serve notice to all who would commit such crimes that they cannot do so with impunity.’
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The Ministers noted that there was ongoing work at the international level relating to the establishment of the Court, in which Australia is an active participant.
On 23 September 1999, in the Senate, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, Senator Kay Patterson, made the following comments in the course of the second reading speech for the War Crimes Amendment Bill 1999 (Senate, Debates, 23 September 1999, p 8792):
The War Crimes Amendment Bill 1999 repeals section 22 of the War Crimes Act 1945. Section 22 imposes a specific requirement for the content of extradition requests to Australia in respect of conduct which will be covered by the act, that is, certain crimes committed in Europe during World War II. Currently such requests must be accompanied by the presentation of evidence which establishes a prima facie case that the person has committed the alleged conduct. The main justification for the repeal of section 22 is that it is no longer appropriate to include this onerous requirement for war crimes extraditions, particularly following the emergence of newly independent states in Europe from behind the Iron Curtain.In principle, Australia is interested in establishing modern extradition arrangements with such countries should they be accepted as members of the Council of Europe. Enactment of this bill, together with the conclusion of such arrangements, will increase significantly our ability to cooperate with other countries which seek our assistance in bringing alleged war criminals to trial.
On 9 December 1999, in the House of Representatives, Dr Sharman Stone made the following comments in the course of the second reading speech for the War Crimes Amendment Bill 1999 (House of Representatives, Debates, 9 December 1999, p 13386):
The War Crimes Amendment Bill 1999 repeals section 22 of the War Crimes Act 1945. The act was amended in 1989 prior to the fall of the Iron Curtain to enable trial in Australia with respect to conduct engaged in during World War II in Europe. Although the usual practice would have been to extradite persons accused of such crimes to the country where the crimes occurred, it was considered at the time to be politically unacceptable to extradite persons to countries behind the then so-called Iron Curtain. Some years ago the Iron Curtain fell, fortunately, and many of the republics—including Latvia, Estonia and Lithuania—are now independent states and have been accepted as members of the Council of Europe. Australia has in the past been prepared to enter into extradition arrangements with any country that is a member of the council.The government is actively pursuing the possibility of establishing modern extradition arrangements with many of these newly independent states. However, even if a modern extradition relationship were in place, it would still be impossible for those countries to comply with an extradition request while section 22 of the War Crimes Act remains in force in our country. Effectively, section 22 of the act provides that, where a person’s extradition from Australia is sought for conduct covered by the act, no surrender for extradition is possible unless the requesting country establishes a prima facie case. Thus, notwithstanding a modern extradition relationship with these countries, if the offence for which the extradition sought is a war crime, then the requesting state must provide a prima facie case.
Because of the differences between civil code and common law countries, the practical effect is that it would be virtually impossible for a civil code jurisdiction to successfully seek the extradition of a person suspected of a war crime. The concept of a prima facie case is determining sufficiency of evidence, and it is one to which most common law countries are accustomed. However, those countries which operate under a civil code system—for example, Latvia, Estonia and Lithuania—do not use this test in criminal proceedings. The practical issue is that the laws of evidence in common law systems are such as to make it very difficult for a civil code jurisdiction to supply evidence in an admissible form.
The repeal of section 22 will remove the fundamental barrier to Australia’s cooperation with the international community in relation to suspected war criminals.
This is not to say that extradition of a suspected war criminal would be automatic. Any requests for the extradition of a suspected war criminal would be subject to the general extradition arrangement with the requesting country. Such arrangement must include all the usual safeguards spelt out in the Extradition Act 1988. All that the amendment will do is to remove an additional onerous requirement that relates only to the extradition of war criminals. This government sees no reason in principle why this practical impediment to the extradition of war criminals should be retained.
On 16 February 1999, the Treaty between Australia and the Republic of South Africa on Extradition, done at Canberra on 9 December 1998 was tabled in both Houses of Parliament. Extracts from the accompanying National Interest Analysis follow:
Extradition treaties are a mechanism for the surrender of fugitive criminals by one country to another. Whilst extradition treaties are not always (depending on the law and practice of the particular country) the only means by which a country may request or grant the surrender of fugitive criminals, they are a reliable and effective means of doing so because such treaties create an obligation in international law to extradite and are designed to accommodate the extradition procedures of both countries.Extradition treaties benefit Australia by providing a reliable and effective means of securing the return to Australia of persons overseas wanted for criminal prosecution in Australia, both at Commonwealth and State and Territory level. Extradition treaties also benefit Australia by making Australia a less attractive haven for overseas criminals wishing to come to Australia to evade justice in their own countries.
Extradition treaties also give effect to safeguards contained in Australia’s Extradition Act; for example, the safeguard against extradition from Australia in violation of international human rights principles.
There is no major disadvantage in extradition treaties. The negotiation and conclusion of these treaties can, however, be a lengthy process.
Extradition relations between Australia and South Africa currently operate on a non-treaty basis of reciprocity and are given effect in Australia by the Extradition (Republic of South Africa) Regulations (Statutory Rules 1988 No. 301 as amended). However, this arrangement is not binding at international law and, given the increasing economic, political and people to people interaction between Australia and South Africa, it was considered preferable to move to a treaty-status agreement.
A Treaty on Extradition was signed with South Africa on 13 December 1995 (1995 Treaty) but to date it has not entered into force. It is not now intended that the 1995 Treaty enter into force but rather that it be superseded by the 1998 Treaty.
As reflected in the texts of its modern extradition treaties, Australia’s preferred approach to extradition of accused persons is on the basis of providing a detailed statement of the conduct alleged against the person sought for extradition, rather than providing evidence that would justify committal of the person for trial (ie. a prima facie case). The 1995 Treaty did not follow this approach due to requirements existing under South African law at the time which obliged the country seeking extradition to provide evidence establishing a prima facie case. However, subsequent amendment of South Africa’s extradition law to eliminate the requirement to establish a prima facie case enabled renegotiation of the extradition treaty resulting in the 1998 version. The 1998 Treaty comprises the 1995 text, updated under Article 5.
On 12 October 1999, the Treaty between Australia and the Government of His Serene Highness the Prince of Monaco on Mutual Assistance in Criminal Matters, done at Paris on 13 September 1999, was tabled in both Houses of Parliament. An extract from the accompanying National Interest Analysis follows:
Mutual assistance in criminal matters treaties are a recent development in international efforts to combat serious crimes which cross international boundaries, such as drug trafficking and money laundering. These treaties enable Australia and the treaty partner to assist each other in the investigation and prosecution of serious crime.Treaties on mutual assistance in criminal matters are not the only way in which Australia and another country or territory can assist each other in the investigation and prosecution of serious crime. Assistance based on reciprocity is possible where both parties have mutual assistance laws enabling assistance to be requested and provided in the absence of a treaty. However, treaties may be required by some countries as a matter of law and are a reliable and effective means of securing such assistance because they create an obligation in international law and are designed to accommodate the relevant procedures of both countries.
Mutual assistance treaties provide benefits to Australia by enabling Commonwealth, State and Territory law enforcement agencies to obtain information and evidence from the treaty partner needed for investigations and prosecutions in Australia. These treaties also enable Commonwealth, State and Territory law enforcement agencies to seek assistance in locating, restraining and forfeiting in the treaty partner’s jurisdiction the fruits of criminal activity that took place in Australia.
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The obligation to provide assistance is qualified by certain internationally accepted exceptions, chief amongst which are that assistance must be refused for political or military offences or where there are substantial grounds for believing that the request was made for the purpose of prosecuting or punishing a person on account of that person’s race, sex, religion, nationality or political opinions or that the person’s position may be prejudiced for any of those reasons. Assistance must also be refused where the Requested State considers that granting assistance would seriously impair its sovereignty, security, national interest or other essential interests. Lastly, assistance may be refused where the request relates to an offence which carries the death penalty. (Monaco abolished the death penalty in 1962 and last carried out a death sentence in 1847.) (Art. 4)
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There are numerous minor technical variations between the text of the proposed Treaty and that of the Australian Model Mutual Assistance in Criminal Matters Treaty. The most significant variations are:
• the lack of a prohibition on derivative use, for a purpose other than that for which the request was made, of information contained in documents or materials provided under the Treaty, because there is no basis in Monaco’s law for such an undertaking;
• the lack of provision for compulsory production of documents or other articles as part of the obligation to take evidence, because Monaco’s law does not compel a witness to produce documents or articles; and
• inclusion of Articles 19 (communication of criminal records) and 20 (notification of sentences passed on nationals of the treaty partner), which was done at Monaco’s request and subject to the understanding that Australia will have a limited capacity to provide this type of information.
On 16 February 1999, a Treaty between Australia and Sweden on Mutual Assistance in Criminal Matters, done at Stockholm on 18 December 1998, was tabled in both Houses of Parliament. An extract of the accompanying National Interest Analysis follows:
The Treaty obliges Australia and Sweden to assist each other in criminal matters, including revenue, foreign exchange control and customs offences. Assistance to be provided includes:• taking evidence and obtaining statements;
• providing documents and other records;
• locating and identifying persons;
• executing requests for search and seizure;
• locating and restraining proceeds of crime and enforcing orders in relation to such proceeds (‘proceeds of crime’ is defined to include any benefit derived from the commission of an offence, including property which represents the value of property derived, directly or indirectly, from the commission of an offence, thus covering the full range of proceeds which can be confiscated under the Proceeds of Crime Act 1987);
• making persons (including prisoners) available to give evidence or assist investigations; and
• serving documents.Assistance to be provided under the Treaty does not include execution of criminal judgements imposed by the courts of the treaty partner, transfer of prisoners to serve sentences or detention with a view to extradition.
On 11 March 1999, Senator Eric Abetz provided the Government Response to the Report of the Joint Standing Committee on Treaties on its inquiry into the OECD Convention on Combating Bribery (Senate, Debates, 11 March 1999, p 2774):
Recommendation, at paragraph 3.42 (page 20)The Joint Standing Committee on Treaties recommends that the Australian Government:
undertake through diplomatic channels the cooperation of other OECD members to work towards increasing the number of adherents to the OECD Convention and, in particular, the adoption of complementary domestic legislation;
raise the issue of adherence to the OECD Convention, and the passing of complementary domestic legislation, at the next meeting of the South Pacific Forum; and
raise with members of the Association of South East Asian Nations the desirability of adherence to the Convention, and the passage of complementary domestic legislation (paragraph 3.42);
Government Response
The Government accepts the recommendation with regard to bringing to the attention of other Governments the fact of Australia’s signature of the Convention and the reasons for having taken that step, and in particular, our view that the Convention is a step towards dealing with an international phenomenon which is detrimental to economic development and also to the interests of countries, including Australia, that are working to promote fairer market access and trade liberalisation generally.
The Government agrees to raise the desirability of adherence to the Convention and the passing of complementary domestic legislation at appropriate meetings in the South Pacific Forum context. The focus over the past few years on economic reform and good governance in the Pacific region has included measures to make government more transparent and accountable. While the provisions of the Convention complement the general thrust of the reform agenda set by Forum leaders, the Government remains mindful of the size of the regional agenda and the capacity of Forum island countries to meet their current commitments.
Priority in the region is currently being accorded to the enactment of legislation on extradition, proceeds of crime and mutual criminal assistance in line with the Honiara Declaration on law enforcement made by Forum leaders following the 1991 South Pacific Forum meeting. The issues concerned are dealt with in the Forum context by the Forum Regional Security Committee, and by three regional bodies which focus specifically on criminal activity and law enforcement cooperation in the region: the Pacific Islands Law Officers Meeting (PILOM), the Customs Heads Administration Regional Meeting (recently renamed the Oceania Customs Organisation) and the South Pacific Chiefs of Police Conference. At the last meeting of the PILOM, held in Canberra in September 1998, the Australian delegation made a presentation on the Convention and its role in tackling global corruption. With the current focus on the Forum island countries achieving the year 2000 deadline for implementation of the Honiara Declaration, the Australian delegation encouraged the Forum members to implement the three pieces of legislation which would provide vital tools for tackling corruption. The Government considers there would be merit in again raising the issue of adherence to the Convention and the enactment of complementary domestic legislation at the next meeting of the PILOM, which is likely to take place in late 1999.
The Government considers that as the Honiara Declaration law enforcement legislation remains the region’s agreed priority goal, Forum island countries are unlikely to look favourably on Australia pressing the issue of adherence to the Convention at meetings of Heads of Government or Ministers. Additionally, there is concern in the region to ensure that the agendas for such meetings remain tightly-focussed on the main issues for the region.
The Government agrees to take appropriate opportunities to raise with member countries of the Association of South East Asian Nations (ASEAN) the desirability of adherence to the Convention and the passage of complementary domestic legislation. The Government is not, however, in a position to encourage ASEAN as an organisation to accede to the Convention, nor can we seek to include the issue on the ASEAN agenda, as we are not a member of the Association. We will also be conscious in raising the issue, that it is likely to be a sensitive subject.
The Government welcomes and continues to encourage as appropriate, ASEAN policies that lead to improved transparency, good governance and liberalisation of international trade and investigation and that contribute to the elimination of bribery and corruption. In this regard, we welcomed the aspects of ASEAN’s Hanoi Action Plan that promote transparency in government procurement, in the application of customs procedures and in the rules and policies relating to investment.
The Government will continue to encourage the efforts of both ASEAN and South Pacific Forum member countries towards improved transparency and good governance and take appropriate opportunities to raise the issue of adherence to the Convention and passage of complementary legislation.
On 3 June 1999, the Attorney-General, Mr Daryl Williams, made the following comments in the course of the second reading speech for the Criminal Code Amendment (Bribery of Foreign Public Officials) Bill 1999 (House of Representatives, Debates, 3 June 1999, p 6044):
The purpose of the bill is to amend the Criminal Code Act 1995 to provide for new offences prohibiting the bribery of foreign officials within and outside Australia by Australians or companies incorporated in Australia. The offences are designed to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, which is a very significant response by the international community to the problem of transnational corruption.
The provisions of the proposed bill would enable Australia to ratify the convention.
…
Australia considers this to be a serious international issue which is best tackled by multilateral action, and Australia considers it important that it be in a position to be part of that multilateral effort. The bill therefore follows the requirements of the OECD convention on these matters and, as such, keeps our standards in line with those proposed for other highly industrialised countries.
On 13 October 1999, a statement was delivered on behalf of the Australian Delegation to the Third Committee of the 54th Session of the United Nations General Assembly. An extract of the statement follows:
Australia has enacted the Child Sex Tourism Act to enable prosecution of Australians who escape the criminal justice system of the country in which the offence was committed. The Australian Government has signed Memoranda of Understanding with the Governments of Fiji and the Philippines which directly support the Child Sex Tourism legislation. These Memoranda have a particular focus on law enforcement cooperation.Australia has also developed strong law enforcement links with many other countries in the region, including Thailand and Indonesia. These links increase the level of cooperation in tackling child abuse and bringing offenders to justice. The forms of cooperation range from informal ‘police to police’ assistance, to formal treaty relationships on extradition and mutual assistance in criminal matters.
On 27 October 1999, a statement was made on behalf of the Australian Delegation to the 54th United Nations General Assembly. An extract of the statement concerning domestic legislation to combat slavery and trafficking in persons follows:
This year Australia enacted legislation, the Criminal Code Amendment (Slavery and Sexual Servitude) Act, to give greater definition and strength to the law relating to slavery and sexual servitude offences. Amongst other things, the Act prohibits slave trading and possessing or exercising any other power of ownership over a person. The new legislation also includes a range of offences to combat a growing and highly lucrative international trade in people for the purposes of sexual exploitation. Young women and children are particularly vulnerable and are falling victim to this insidious trade in increasing numbers. An important feature of the Act therefore is the aggravated offence provisions to protect children. The maximum term of imprisonment for the slavery offences is 25 years and for the sexual servitude offences is 19 years.
STATUTES
Border Protection Amendment Bill (Cth) 10
Child Sex Tourism Act 1999 (Cth) 129
Criminal Code Act 1995 (Cth) 129
Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) 130
Damage by Aircraft Act 1999 (Cth) 12
Ozone Protection Act 1989 (Cth) 90
Ozone Protection Amendment Bill 1999 (Cth) 90
Proceeds of Crime Act 1987 (Cth) 127
The Civil Aviation (Damage by Aircraft) Act 1958 (Cth) 12
Trade Practices Act 1974 (Cth) 26
War Crimes Amendment Bill 1999 (Cth) 123, 124
OTHER AUTHORITIES
Agreement between the Government of Australia and the Government of New Zealand concerning the Status of their Forces 1998 121
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea (1982) 1995 19
Agreement on Consular Relations between Australia and the People’s Republic of China 1999 74
Agreement on Technical Barriers to 1979 27
Agreement Relating to Scientific and Technical Cooperation between Australia and the European Community 1994 28
Camp David Accords 1978 117
Comprehensive Nuclear Test Ban Treaty 1996 103, 104, 105, 106, 107, 121
Convention against Transnational Organised Crime 114
Convention for the Conservation of Antarctic Marine Living Resources 1982 13, 14
Convention on Biological Diversity 1992 82
Convention on Combating Bribery of Foreign Officials in International Business Transactions 1997 127, 129
Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface 1952 11, 12
Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 12, 13
Convention on the Elimination of All Forms of Discrimination against Woman 1979 47
Convention on the Elimination of All Forms of Racial Discrimination 1965 49, 50
Convention on the Law of the Sea 1982 11, 15, 16, 17, 19, 20, 83
Convention on the Prevention and Punishment of the Crime of Genocide 1948 77
Convention on the Prohibition of the Development, Production and Stockpiling and use of Chemical Weapons and on their Destruction 1993 100, 109
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 1972 99, 100, 108, 109
Convention on the Rights of the Child 1989 42, 43, 44, 114
Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desert, particularly in Africa 1994 92, 93
Draft Declaration on the Rights of Indigenous Peoples 1992 7
Fissile Material Cut-off Treaty 101
International Convention for the Regulation of Whaling 1946 21
International Covenant on Civil and Political Rights 1966 53, 63
International Covenant on Economic, Social and Cultural Rights 1966 63
International Labour Organisation Convention on the Prohibition and Immediate Action on the Elimination of the Worst Forms of Child Labour 1999 45
Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997 83, 84, 85, 86, 87, 88, 89
Optional Protocol to the International Covenant on Civil and Political Rights 1966 56
Organisation for Economic Cooperation and Development (OECD) Model Tax Convention on Income and on Capital 22
Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society 1997 110, 111
Rio Declaration on the Environment and Development 1992 92
Treaty between Australia and the Republic of South Africa on Extradition 1998 125
Treaty on the Non-Proliferation of Nuclear Weapons 1968 99, 100, 101, 102, 103, 104, 108, 121
United Nations Charter 1945 115
Universal Declaration of Human Rights 1948 41, 47, 57, 58
Vienna Convention on Consular Relations 1963 75
Vienna Informal Consultations on the Biosafety Protocol 92
World Trade Organisation (WTO) Agreement Trade-Related Aspects of Intellectual Property Rights 1994 35, 36
Wye River Agreement 1999 98
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URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/1999/21.html