Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2019 and related bills before the Senate today give effect to the Timor Sea Maritime Boundaries Treaty which was signed on 26 March 2018, almost a year and five months ago. After an inexplicably and inexcusably long delay, these bills are now being rushed through parliament so the Prime Minister can visit Timor-Leste on 30 August to participate in the 20th anniversary commemorations of that nation's historic vote for self-determination.

In addition, the Leader of the Opposition indicated in the other place that he isn't asking for these bills to go through any committee process. In fact, he said he was looking forward to travelling to Timor-Leste with the Prime Minister—that is apparently what passes for parliamentary scrutiny from the opposition these days. Furthermore, when the Joint Standing Committee on Treaties held its public hearings on this matter, it devoted all of 45 minutes to the Timor treaty from 12.15 to 1.00 pm on 7 May last year.

I'll try and do in the short time available to me the job that should have been done by this parliament and the major parties and provide an analysis of this treaty and what it might mean for our country and for the people of Timor-Leste.

Firstly, it's worth pointing out that Australia delayed agreeing to a maritime boundary until it had gone pretty much all the way down the road to depleting nearly all of the known oil and gas fields, including Kitan, Buffalo, Elang-Kakatua and Laminaria-Coralina. Now that Australia has collected the revenues, we're willing to share near-empty fields with our impoverished neighbour. How absolutely generous we are as a country! Secondly, article 10 of the treaty says that Timor-Leste shall not 'have a claim for compensation' for money collected by Australia under prior treaties and agreements. The inexcusably long delay, since 6 March last year, amounts to, as I said, nearly 18 months. According to credible estimates by La'o Hamutuk, one of Timor-Leste's finest think tanks, Australia has siphoned off about US$4 million, or about A$5.7 million, per month in revenues from the Bayu-Undan fields and it will continue to do so until the treaty is ratified. This means Australia will take about $100 million in revenues that actually should belong to Timor-Leste. Furthermore, according to the same analysis, under this treaty and its predecessors, the Australian government has collected about US$5 billion from oil and gas fields which it now recognises are in Timor-Leste's territory. That's about twice as much as the 'aid' that the Australian government says it has spent on Timor-Leste. The question around aid is: how much of that aid is actually boomerang aid, spent on salaries and other items that ultimately come back to Australia? I'll have a little bit more to say about aid when I get to regaling the Senate, once again, with the story about how one of our intelligence agencies bugged the Timor-Leste Council of Ministers room to get an unfair bargaining advantage in treaty negotiations.

I want to also point out that the delay in ratification is reminiscent of Australia's conduct during the 2002 Timor Sea Treaty when the Howard government withheld ratification for 10 months until Timor-Leste signed an international unitisation agreement giving Australia 82 per cent of revenues from the Sunrise and Troubadour fields, known collectively as Greater Sunrise. There appears to be a particular pattern in the way Australia conducts relations with Timor-Leste and I don't believe it's overstating it to call Australia's tactics bullying. On that occasion, regarding conduct during the 2002 Timor Sea Treaty, my predecessor from Tasmania in the Senate, Dr Bob Brown, condemned then Prime Minister Howard's actions 'to coerce a poor and weak neighbour, through blackmail, into accepting the agreement'. It's a matter of record that another Tasmanian senator, still sitting in this place, Senator Eric Abetz, then alleged that Dr Brown was casting an aspersion on the Prime Minister and insisted he withdrew his statement. When Senator Brown rightly refused to withdraw that statement, Labor, Liberal and National Party senators voted to suspended him from the Senate for the day. As has happened so often during Bob's career, history has proved him absolutely right. If anything, he understated the point. The Howard government not only bullied its weaker neighbour but ordered the Australian Secret Intelligence Service to spy on the Timorese government.

We talk a lot about rules based international order, and this treaty is said to be about our commitment to a rules based international order. So the question needs to be put: how does the Australian government's conduct fit this description? In March 2002, three month before Timor-Leste was to gain formal independent statehood, the Howard government withdrew from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. Its internal analysis said that there had been no consultation outside the federal government about the decision to withdraw, because public knowledge could lead other countries to begin legal action against Australia in relation to sea boundary delimitation. In plain English, the Australian government knew it didn't have a leg to stand on and wanted to prevent Timor-Leste hauling it before an independent umpire. How is that for a rules based international order?

Fifth, this new Timor Sea treaty hasn't come about because of this government's newly discovered commitment to a rules based order but because Timor-Leste invoked a compulsory conciliation process under UN auspices. The Australian government mounted six objections to the jurisdiction of the conciliation, all of which were found to be completely groundless. That is why we are where we are today.

Sixth, neither the government nor the opposition appear in any rush to reverse the March 2002 decision to withdraw from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. That is unfortunate because that is, in fact, what we should do immediately. We should reverse the March 2002 decision to withdraw. That would show some commitment, however feeble, to a rules based international order. That would actually put our country's money where its mouth is.

I want to, again, remind the Senate of the fact that the Howard government ordered our external spy agency, ASIS, to obtain clandestine recordings of the Timor-Leste negotiating team's private discussions. The only reason that we know this is because of the bravery and patriotism of two people: Bernard Collaery and someone who is known as Witness K. Many describe Witness K as a whistleblower, but he is a very different kettle of fish to the people who are more commonly described as whistleblowers. Witness K made a protected disclosure to his lawyer, Bernard Collaery, with the approval of the Inspector-General of Intelligence and Security.

As we stand here today, both Mr Collaery and Witness K are being prosecuted. I don't intend to breach or intrude into the doctrine of the separation of powers. But, as it happens, their trial hasn't begun yet. It is a matter of public record that the Commonwealth Director of Public Prosecutions is relying on the National Security Information (Criminal and Civil Proceedings) Act 2004 to hold the trial almost entirely in secret. The use of national security to try these men beggars belief.

The National Security Information (Criminal and Civil Proceedings) Act 2004 was passed during the war on terror as part of the measures said to be needed to prosecute terrorists. At the time, then Attorney-General Philip Ruddock referred specifically to ASIO director-general and the protection of classified and security sensitive information as a critical issue in a terrorism trial. The Commonwealth DPP is handling the case through its organised crime and counterterrorism unit. Are we seriously expected to believe that Witness K and Bernard Collaery are potential terrorists? Give us a break.

However, there is a real national security aspect to this whole sordid affair. When the Howard government ordered ASIS to spy on Timor-Leste in order to defraud it and to steal its oil and natural gas, there was a war on terror going on, exacerbated by the illegal invasion of Iraq the previous year. At the same time as the espionage operation was underway in September 2004, the Australian Embassy in Jakarta was hit by a car bomb. That was on 9 September 2004. About a dozen people were killed, including an embassy security guard, four Indonesian policeman, a gardener and others. A terrorist group, called Jemaah Islamiyah, claimed responsibility.

At the time, the Howard government was assuring the public that it was doing everything it could to protect Australians from terrorism. Its white paper on terrorism, which was over 100 pages long, referred to extremist Muslim terrorism more than 50 times and pointed to the importance of Indonesia around 100 times. Yet, as we now know, the Howard government was diverting precious intelligence resources away from the so-called war on terror and tasking the Australian Secret Intelligence Service to spy on the East Timorese leadership in order to, as I said, defraud them and steal their natural resources.

Now Witness K and Mr Collaery are being tried under national security laws. In fact, Mr Collaery and Witness K are national heroes. They are the real reason why the new Timor Sea Treaty had to be renegotiated in the first place. We should remember that, when we hear the Prime Minister and the Leader of the Opposition talk about how this new treaty has brought Australia and Timor-Leste together. It is not this treaty that has brought Australia and Timor-Leste together. It's Mr Collaery and Witness K who are more responsible for that than any others.

The espionage operation—the bugging of the Timor-Leste cabinet discussions—occurred under cover of an Australia aid program, thereby jeopardising the security of our aid projects everywhere. This whole episode, including who authorised what and who knew about what, should be the subject of an independent inquiry and, arguably, a royal commission. It's probably Australia's biggest intelligence scandal of the past 30 years. That won't happen, because there are people from both major parties still sitting in this place and the other place who will not allow the disinfectant of sunlight to be shone on this sordid affair.

I also want to draw the Senate's attention to the very reasonable points made, in a submission to the Joint Standing Committee on Treaties, by Professor Andrew Serdy of the Institute of Maritime Law at the University of Southampton in the UK. Professor Serdy is a former DFAT officer and member of the Australian team that negotiated the 2003 Timor Sea Treaty. He criticises what he calls the disingenuous of the national interest analysis that accompanied the treaty. He says it has, and I quote from his submission:

… a number of serious omissions, from which it can be surmised that significant information is being withheld from the document’s readership …

That would include the Joint Standing Committee on Treaties. He cautions that JSCOT:

… should treat with scepticism large parts of the NIA and insist on amendments to the latter that make good the identified omissions, and only then proceed to recommend binding treaty action.

As I said at the start of my remarks, JSCOT devoted a grand total of 45 minutes to its so-called scrutiny of this treaty. Professor Serdy concluded his submission with this prophetic observation:

… it would be a betrayal of the purpose of genuine parliamentary scrutiny of treaties that the Committee was created to serve in 1996 if it were content to leave these omissions unaddressed.

That is precisely what the major parties in this place have done.

I'll conclude by adding to the public record an observation. The compulsory conciliation and the resulting treaty have succeeded only in setting the maritime boundary but not the mode of development for Greater Sunrise. As is the case with Bernard Collaery and Witness K, I suspect we haven't heard the last of that matter either.