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ESTIMATES COMMITTEE A - 21/06/1994 - DEPARTMENT OF FOREIGN AFFAIRS AND TRADE - Program 1--International relations, trade and business liaison - Subprogram 1.7.1--International organisations

Senator TROETH --Why is it that, 2 1/2 months after the slaughter in Rwanda began, the government still does not have a clearly defined policy on whether or not it will contribute to UNAMIR?

Senator Gareth Evans --We are very actively still considering the question of our participation in UNAMIR. I talked about it when I was in New York last week, and I have been talking about it since with my colleague the Minister for Defence. We are proposing to take the matter to cabinet on or before next Monday. If an affirmative decision for an Australian participation in the process is made at that time or is foreshadowed, it would still be in time for us to participate in the second stage of the operation, which is presently expected to occur--all going well--no earlier than late July.

The difficulty about the situation which has held up the process everywhere--not just in Australia--of making commitments of this kind is that answers are still being sought to a number of questions that are relevant to such participation. Those questions relate both to the overall concept of the UN operation and to the particular role that is envisaged for our own contingent.

The most recent new element complicating the situation is the French proposal for a limited scale peace enforcement operation, about which you would have seen a degree of public reporting. It is not yet entirely clear how this would mesh with the UNAMIR operation as it has been approved, most recently on 8 June, by the Security Council. It is not yet clear what degree of support there is for the French proposal. That is being actively debated right now. I think there is a Security Council meeting scheduled--if not today then within the next day or so--to further address this issue.

One obvious problem with the French proposal, whatever merits it might objectively appear to have, is that the RPF, the invading group from the north, has said that it would regard any such intervention as an act of war and resist it militarily. If that happened, you would fundamentally change the assumptions on which the UN operation has so far been mounted. Those assumptions are that, even if a cease-fire is not absolutely assured between the RPF and the interim government, at least there is agreement by both sides to accept the validity of the UNAMIR operation and certainly agreement by both the contending parties not to assault it in any way. All of that issue is very much now up in the air again as a result of this latest French effort--which is thoroughly well-intentioned; I am just describing the complications that flow from it.

The UNAMIR concept of operations is not to mount a peace enforcement operation. There has simply been nothing like the evident international will to put in the perhaps scores of thousands of personnel that are necessary to do that. It has been perceived as essentially an operation in support of humanitarian objectives to secure enclaves or protected areas around the borders or in particular parts of the country where fighting is no longer continuing and to create havens for people to get to and be secure from further attack while they are there.

The concept of operations has been reasonably clearly defined since the second Security Council resolution on 8 June in outline terms, but there has been a long way to go in making it actually work on the ground. Essentially it involves a two-stage operation. If we leave aside the French complication for the moment, stage one is the completion of the mobilisation of the Ghanian battalion, plus some other observers in various strategic locations, including particularly Kigali. That is still some time away from completion. Stage two was the addition to that of another four battalions, drawn from various sources, together with various kinds of logistic support--engineering, medical and so on--which was to take place some weeks later.

Within the concept of operations as defined in early June, any role that would be played by Australia would be in that defined second stage. We are not yet up to the point where there is any dragging of the feet in that respect. It is still possible for us to play a role. I repeat, having said all that and given you all that detail, that the situation is still very complex, very fluid and very difficult to precisely assess in terms of the pros and cons of different kinds of involvement.

If this had been an easy decision to make, it would have been made long ago. We have to take into account, obviously, not only the harrowing continuing situation of the people on the ground in Rwanda but also the kinds of risks that will be experienced by Australian personnel. It is not a matter of saying that these have to be risk-free operations, but there has to be a sufficiently clearly defined concept of operations for such risks as are inherent in it to nonetheless be worth taking because of the greater advantage that will flow from the operation. That is the sort of thing about which we have to be satisfied and which we are presently debating.

Senator TROETH --I do understand that any assessment must be flexible and reviewing the ongoing situation, but would you agree or disagree that the existing UNAMIR contingent is protecting refugees and relief supplies at the moment? Is it being effective on the ground at the moment?

Senator Gareth Evans --Within the limits of the very small numbers that are involved--there are less than a thousand personnel there, who are pretty thinly stretched and in rather a difficult situation, with fighting still continuing in Kigali itself--they have already played a useful role in enabling the transfer out of danger of at least some hundreds of people who have been at very grave risk of further attack.

I think their presence has certainly given some confidence to those who have responsibility for ensuring the protection of the refugee camps that have already been established in the border areas. Even though there are no UN personnel presently immediately deployed there, it is a confidence enhancing factor to have them around. The great tragedy of all of this is that it just has not been possible to actually stop the killing. It is very difficult to give an instant answer as to how that might be accomplished, short of a really massive interventionist effort, which the international community has not been willing to set in train.

Senator TROETH --Did Mr Keating discuss Rwanda with European leaders during his recent visit to Europe?

Senator Gareth Evans --I am not sure whether he had the opportunity to do so. I have not yet had an opportunity to discuss this further with Mr Keating since his and my return.

Senator TROETH --What is your view of President Mitterrand's accusation that the international community has been guilty of culpable inaction over Rwanda?

Senator Gareth Evans --I can understand the emotion which lies behind comments of that kind, but I think we have to work as an international community with the tools and resources that we have. You cannot blame the UN if member countries are unwilling to mobilise massive resources for interventionist enforcement kinds of operations. The truth of the matter is that these operations are extremely politically sensitive in many countries. Governments are concerned about sending their young men and women off to fight and possibly die in exotic locations.

The internationalist sentiment that would lead us all to support, in principle, such operations is not quite as extensive or robust in many parts of the world as we might hope. So if you have very limited resources potentially available to you, if you can at best only mount a kind of peacekeeping operation which is premised upon a basically secure situation which you are simply monitoring, there is very little you can do to stop the killing. These are the issues which the international community really has to wrestle with in a major way.

Although Rwanda is a peculiarly horrific example of these internal conflict situations getting out of hand, the truth of the matter is that there have been a great many internal conflicts around the world in recent times. Perhaps the most pressing issue on the international policy agenda is to find a credible and effective way of dealing with them or at least preventing them occurring, even if you cannot always intervene after the event. A lot of time, effort and attention is going in to trying to wrestle with just that problem. To repeat, it is an understandable reaction shared by many people. One has to look at it in the light of what is doable given known reactions by governments right around the world to these sorts of issues at the moment.

Senator KEMP --I have a couple of questions on UNCTAD. What is the government's current position on the guidelines for global business, which I think were originally proposed by Australia?

Senator Gareth Evans --That is a trade issue which is on the trade part of the agenda which Bob McMullan was going to pick up, is it not?

Senator KEMP --No.

Senator Gareth Evans --If it is not, it should be.

CHAIRMAN --If you say so, minister, that is good enough for me.

Senator KEMP --Mr Chairman, do not be so easily seduced.

Senator Gareth Evans --It is under program 1.6.4--economic organisations, is it not? Bob McMullan is going to do that as soon as we have dealt with these other matters.

Senator KEMP --Could I get an update from the department following the information we had last time on the number of complaints that are currently in train from Australia to UN committees?

Mr Barker --Eight communications have been filed under the covenant. Three of these were declared inadmissible by the committee without reference to the Australian government. Of the other five, one is the Tasmanian complaint, two involved criminal law, one involved family law and one involved the treatment of refugees. The complaint process is confidential. As far as I am aware, apart from the Tasmanian complaint, the others are still under consideration.

Senator KEMP --When would you expect those to be resolved by the committee?

Mr Barker --It depends on things such as whether or not the committee finds it admissible. If it does find something admissible it can take some time.

Senator KEMP --In those cases are the complaints all against the federal government or do they relate in some cases to state government activities?

Mr Barker --The complaints would obviously be in relation to Australia's participation in the treaty.

Senator KEMP --That I understand.

Mr Barker --In some cases they may relate to state jurisdictions. Certainly the Tasmanian case did. The others, as I said, are still under consideration. We are not at liberty to discuss them.

Senator KEMP --There was a problem in relation to the Tasmanian case. I suppose you could speak broadly as the defendant in this case. The Tasmanian government had no official rights or standing to appear before the committee. I know that Senator Evans tried his best to make sure that the Tasmanian government's case was well put to the committee. Has the government given any consideration to making proposals to ensure in future cases that defendants do have the right to appear before these UN committees?

Senator Gareth Evans --I would not accept the terminology `defendant' in these situations even by way of loose metaphor. We are willing contributors to the deliberative processes of the committee. We get an opportunity to put before it views as to the matters in issue. We do so and will continue to do so. I think we are reasonably content with that process.

Senator KEMP --Senator Evans, seeing as you are so enthusiastic about these UN committees and because you write these nice books about how we can reform the UN and all this business, do you not think it may be appropriate to provide an automatic right for a defendant--however you wish to describe the person; someone who has been criticised--to appear to answer the case?

Mr Barker --There is opportunity. The committee itself seeks submissions from the parties. I understand that in the Tasmanian case the Tasmanian government was able to make a submission through the Australian government representation to the committee. So there is an opportunity there.

Senator KEMP --There is a problem when the submission is made through a government which is in fact supporting, loosely termed, the plaintiff. What I am suggesting is that there is a procedural problem there.

Senator Gareth Evans --The point that needs to be understood--I was seeking confirmation--is that there is no oral hearing process at all. It is all done on the written submissions including so far as the complainant is concerned. It is not as if the complainant gets a chance to turn up but nobody else does. It is done on the written submissions. These are essentially questions of proper interpretation of law and treaty obligations that are involved. That is the kind of thing that can be argued on paper. We get a fair opportunity. Any state jurisdiction that might be affected by this gets an equal opportunity to put its views to the committee.

Senator KEMP --In view of the impact that these rulings are clearly going to have on Australian law and Australian constitutional practice, do you not see any reason to make sure that these procedures meet what you in a previous career would have described as an absolutely vital element in the areas of natural justice?

Senator Gareth Evans --I do not know how many times it is necessary to repeat this. The determinations of the committees have only hortatory, declaratory or advisory effect. They are not self-implementing. They are not self-executing. That depends on the countries concerned--in this case our own federal parliament, democratically constituted--making the decision to go down that particular implementation track. That is a sufficient fail-safe mechanism so far as I and this government are concerned. We do not believe there is anything broken about the process that operates. Therefore, there is no need to fix it.

Senator KEMP --But Justice Kirby has drawn attention to the fact that the impact of these committees can come through not only the legislative process but also judicial interpretation. He has praised your action in allowing appeals to go to UN committees and has said that these are having an important effect on the judgments of courts in this country, including Mabo judgments.

I make the point that it is not sufficient simply to say that in the end the parliament has the say. Although I do not agree with your action, I think it is significant and it will have an important consequence in this country, but these views given by the committees are also going to be important. It seems to me that those who support the role of these committees should make sure that appropriate procedures are followed. Do you think you could look once again at the procedures of these committees, the method of appointment of people to these committees and the processes by which they conduct their hearings and see whether there is, in your view, any room for reform?

Senator Gareth Evans --I have already looked at these procedural questions and my judgment at the moment, for better or worse, whether you like it or not, is that it is working perfectly well in terms of priorities for reform of different organs within the UN system and it is not likely to rank high on my agenda for the foreseeable future given priorities elsewhere within that system.

Senator KEMP --You mentioned to us last time that you were proposing to update your book on the UN--

Senator Gareth Evans --Not the UN. That is the other one; that is on Australia's foreign relations.

Senator KEMP --How many books is the department working on for you at the moment?

CHAIRMAN --Order! I think you have made your point and you have got an answer.

Senator KEMP --Could you take on notice how many cases were finally determined by the UN Human Rights Committee at its last session?

Senator Gareth Evans --Yes, we will take that on notice.

Senator KEMP --Is it possible to provide me with a short summary of the determinations which were made by that committee?

Senator Gareth Evans --I expect so.

Mr Barker --We can check that and provide it to you.

Senator KEMP --I have some questions on the proposed treaty on the rights of indigenous peoples. We briefly discussed this at the last hearing of the committee, and my understanding is that the working group has now produced a draft declaration. Is that right?

Mr Lamb --The working group has finished its work on the draft declaration. The draft declaration is now in the hands of the subcommission on the prevention of discrimination and the protection of minorities. That subcommission will decide whether to remit the work done so far to the Commission on Human Rights, at which point it will then

become available for governmental consideration.

Senator KEMP --What would be the time scale involved with that? Are we looking at months or a longer period?

Mr Lamb --The subcommission meets every year in August. The working group will meet this year in July, although the matter has technically left the working group's agenda. We do not expect that the working group will try to take the matter up; it is technically not in its hands. It would be available to the working group because of its interest in the general subject of indigenous people to re-examine some issues if it wanted to. But the subcommission has the ability in August to decide to refer the matter on to the commission, which will meet next year. Ordinarily it meets at the beginning of February, but there is a possibility that next year it will change the timetable and it will meet a little later. We would expect a decision to be taken by the subcommission this year as to whether to remit it to the commission. If it were to decide to hold onto it for longer and seek more advice from organisations or groups, it is free to do that. The subcommission is not a governmental body; it is a body of experts elected by the commission.

Senator KEMP --So it goes to the commission, say, next February at the earliest and then would you expect the commission at that sitting to make a determination?

Mr Lamb --No, we would not. We would expect the commission to find that this was such an intricate subject that it needed to have some detail worked on by governments. It would probably set up a governmental working group of its own. I must make it very clear that there has been no governmental consideration of the issue as yet; it has all been done by expert groups.

Senator KEMP --Although Mr Tickner has made some speeches to the working group on this.

Mr Lamb --Indeed, and we have had a delegation from the government which has gone in an observer capacity to the working group and offered our views on the philosophies that underpin the drafting process and the issues to be taken into account. But when it comes to governments looking at it there will be quite a different range of issues that other governments will bring in that we would want to look at as they affect the outcome.

Senator KEMP --At what stage would you expect governments to start to have a look at this?

Mr Lamb --If the subcommission decides to remit the issue to the commission, I would expect that as early as late August or September we would have to as a department provide advice to ministers as to what processes we might undertake before we get to the commission session itself.

Senator KEMP --Would you expect there would be widespread community consultation on this? I am not speaking only of particular groups that may have a direct interest but of wider groups.

Mr Lamb --I would expect that we would see this issue as one that very many Australians would be concerned with, and that it would be difficult to go to a negotiating session in Geneva without having taken account of that opinion.

Senator KEMP --As you know, there is a growing concern amongst the business community particularly about the need to ensure that these treaties are properly discussed before the government determines a negotiating position. Can you perhaps give some comfort to those groups that feel that they would also like to have an input?

Mr Lamb --I am sure we will be asked questions about the range of consultation that takes place on treaties later.

Senator KEMP --You probably will be. I am intrigued. Could you table before the committee the draft that the working group has determined so that we can see the full text of it? Is it a long document? Is it the sort of document that could be incorporated in Hansard?

Mr Lamb --It would be easy to produce that document for you. But I have to warn you on a couple of points, and one of them is, of course, that it is not a treaty that is in draft; it is a declaration. There is a substantial difference in the way that the negotiation would need to be approached because of that. Nevertheless, it is not a long document. But we would also need to make sure that everybody who reads it understands that it is only a product of a small working group. If it goes through the subcommission to the commission, it will then only be a product of the subcommission and a product of a kind which itself has not been discussed because the subcommission has not undertaken a detailed discussion of it.

Senator KEMP --I understand that. People will want to read it and to help this process of consultation.

Senator Gareth Evans --Just do not give it the status it does not have when you start fulminating against it; that is the short message.

Senator KEMP --I accept your view that this is an important treaty or document.

Senator Gareth Evans --For a start get your terminology right. It is not an important treaty.

Senator KEMP --A declaration. I accept that it is important and therefore that the ultimate consequences of this may be important for this country. Therefore I am asking you whether it could be incorporated in Hansard so that your point about the need to encourage wider community consultation can be achieved.

Mr Lamb --Yes, we could certainly arrange that. I might say that a large number of community groups in Australia have seen the declaration. There has been quite a lot of consultation between groups as they have gone forward on this.

Senator Gareth Evans --We do not have the declaration with us, but we will incorporate it at some later stage.

Senator KEMP --The minister will be aware that one of the major debating points in relation to the declaration is the self-determination clause. Has the minister had a chance to view the self-determination clause which is in the declaration? Could he indicate what the government's position on it might be?

Senator Gareth Evans --We are certainly not in the business of supporting any self-determination clause that amounts in any way to an intrusion on national sovereignty, and we have made that perfectly clear. My understanding is that there is no language in the draft susceptible to that interpretation.

Senator KEMP --Except that it says--

Senator Gareth Evans --We do support the right of self-determination and indigenous peoples consistent with national sovereignty.

Senator KEMP --No, that has been pulled out. My understanding is that it now stands as follows:

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Is that right?

Mr Barker --As Mr Lamb has pointed out, the draft declaration has not been addressed by governments; it remains purely an expert draft. The text of that draft article on self-determination has to be read in conjunction with the explanatory note, which has been provided by the chairperson of the working group, on the meaning of self-determination in that context and the meaning of the term `peoples'. I have the text of that explanatory note, which I could provide to you.

Senator KEMP --That would be most helpful. Could that also be incorporated in Hansard?

Senator Gareth Evans --It is a bit lengthy to incorporate. I think we will just table it and you can have a look at it. It is about 10 pages long. If you have the declaration, you may as well have the explanatory note, I suppose. That lessens the chance of reducing the level of misinformation which is about to be circulated.

Senator KEMP --Very tetchy, minister.

Senator Gareth Evans --No, it is just a healthy sense of realism.

Senator KEMP --The view has been put to me--if this view is incorrect, I would welcome being corrected--that the way the Australian government, particularly Mr Tickner, uses the terms `peoples' and `self-determination' is not the generally accepted usage on the international legal plane. Could I get your comment on that? In other words, the government is prepared to accept the use of these terms, which have particular legal meaning, but it chooses to interpret their meaning in what it believes to be the Australian context. That may well have wider ramifications.

Senator Gareth Evans --I am not aware of any competing views about this issue. We will take that question on notice and give it some further consideration. I have made clear what the government's position is: when we use self-determination and indigenous peoples contexts, we use them in a way that is consistent with claims or rights of national sovereignty, and nothing that anybody says should be taken as undermining the force of that very basic threshold proposition.

Senator KEMP --So there is a hierarchy of rights there, is there?

Senator Gareth Evans --I do not understand. I understand the words you are using but I do not understand what they mean in this context.

Senator KEMP --It is sort of national sovereignty versus self-determination.

Senator Gareth Evans --It is perfectly possible to think of self-determination being accomplished within the framework or the boundaries of national sovereignty. There is an ongoing and substantial international debate about that, not only in the context of indigenous peoples but in many other situations as well. Part of the problem around the world is that so many group rights claims are challenging national sovereignty when arguably the substance of those claims could be met satisfactorily within sovereign national boundaries by better protection of minority group rights, as the case may be.

Senator KEMP --Although that is not the view of many of the people who are strongly pushing these particular clauses in the declaration.

Senator Gareth Evans --Perhaps it is not, but it is the view of the government, and that is what we are here to articulate.

Senator KEMP --I just make the point that it seems to me that you have accepted that there is a hierarchy--in that context at least--although in the national action plan you maintain that the government did not accept that there was a hierarchy of rights. It seems to me that in this context you do accept that.

Senator Gareth Evans --You are begging all sorts of questions. It is not a matter of a hierarchy of rights; it is a matter of arguing that the rights in question can be protected perfectly well and fully but from within the boundaries of national sovereignty.

Senator KEMP --I do not know whether we are going to advance the discussions too much here, but I point out to you, for example, that the declaration also grants indigenous people a complete veto on mining on lands.

Senator Gareth Evans --Who does? What does?

Senator KEMP --Article 30 of the declaration which we are discussing now grants indigenous peoples--

Senator Gareth Evans --That is the declaration, the status of which we fully and clearly described to you about five minutes ago; the Australian government's position on veto rights over mineral projects is well and fully established and known. I do not know what is in article 30. I do not propose to find out at this stage because there is nothing in it that could possibly have any competing effect. At the end of the day we are not talking about anything more than a declaration. We are not talking about a treaty status document.

Senator KEMP --But we are talking about whether the government is prepared to accept such clauses. I am bringing to your attention that there is quite a number of clauses in the declaration about which the Australian community will be concerned. We want to avoid a situation where on the one hand you say that we are opposed to these things but on the other hand, you run off to Geneva and sign them up. That situation appears to have emerged in other cases.

Senator Gareth Evans --There is an issue here of exactly the kind one would expect to see thrown up in a document of this nature. This is a document that remains even to be considered by governments, let alone negotiated between them. The Australian government's position is very clear on this, and I imagine that many other governments around the world will be very clear on this. This is a negotiation process that will clearly stretch out for some years ahead. Some estimates would have it that this process will take something like 10 years to come to fruition. It may not be as long as that but it will certainly be a long time. All of these issues will be properly and fully discussed during that time.

Senator KEMP --The purpose of my question is to bring to your attention that there are people who are already concerned about this. When things finally catch up with you, if you are still here, at least you cannot plead that no-one ever pointed these things out to you. That concludes my comments in relation to the declaration.

CHAIRMAN --I think that was really covered under subprogram 1.8.1--International agreements, resource law and law advising. I think it might be worthwhile asking whether there are any other questions under subprogram 1.8.1. While people are looking at that, Senator Margetts has questions that have been referred to the minister. Is it the wish of the committee that the questions from Senator Margetts be incorporated?

Senator Gareth Evans --I think they bear more upon the environment--the Basel convention--do they not, under subprogram 1.7.2? They are equally applicable, I guess, under this subprogram. In any event, I am perfectly happy to take the questions on notice.

CHAIRMAN --I suggest that we incorporate them now. If there is no objection, it is so ordered.

[The questions appear at the conclusion of today's proceedings.]