WALLIS, Dr Joanne Elizabeth, Lecturer and Convener, Bachelor of Asia-Pacific Security Program, Strategic and Defence Studies Centre, Australian National University

[13:26]

CHAIR: On behalf of the committee I welcome representatives from the Asia-Pacific security program. Before proceeding to questions, do you wish to make a short opening statement?

Dr Wallis : Yes, I do, thank you. Thank you all very much for inviting me to appear today. I would like to begin by acknowledging the progress that Timor-Leste has made since it gained independence in 2002. The political situation is stable, the economy is growing and the public services have been established. This progress is largely due to the resilience and the dedication of the Timorese people. I hear you have been to Timor-Leste and I imagine you would have seen that with your own eyes. But, as you would also have seen, significant challenges remain. Timor-Leste remains one of the world's poorest countries, and this is despite the fact that billions of dollars of external assistance have been provided to Timor-Leste, including millions of dollars of Australian aid. I argue that this suggests that it might be time to rethink the manner in which Australia's assistance to Timor-Leste is delivered.

As I said in my submission, for several years after Timor-Leste's independence state institutions were highly centralised and they were absent from the lives of the more than 70 per cent of Timorese people who live in rural areas. Instead, many Timorese people continued to live according to local sociopolitical practices and institutions. They essentially lived outside the state and they received almost no public services. This suggests that focusing Australian aid and governance support on building centralised state institutions in Timor-Leste may not have been and may still not be the most efficient or effective use of Australian development assistance. There is strong evidence that Australia should look beyond the state in Timor-Leste to the often effective and legitimate local sociopolitical practices and institutions that lie beneath. Australia should therefore expand the focus of its assistance to the local level and support increased political, administrative and developmental decentralisation so that we can assist the Timorese people to build their state from the ground up, embedded on strong local foundations.

The Timor-Leste government has recognised the difficulties of reaching into rural areas and in 2003 it began working on a framework for decentralisation, but progress on political decentralisation has been slow. In 2009, a law was adopted to provide that Timor-Leste's 13 districts and 65 subdistricts would be merged into 13 municipalities. While elections for the new municipal assemblies were originally supposed to take place in 2010, they have since been deferred until 2014 or, more likely, 2015, primarily due to a lack of political consensus and concern about the progress of local capacity building.

But there has been more significant progress on administrative decentralisation. In 2004 the Timor-Leste government sought to engage with local sociopolitical institutions at the level of Timor-Leste's 442 villages and 2,225 hamlets by introducing democratic elections for village and hamlet leaders and by empowering them to lead activities in a broad range of areas. In 2009 the government expanded the mandate of village leaders and began to decentralise more resources to the local level. And in 2004 the Timor Leste government also decentralised certain law and justice functions to the village level.

Momentum for decentralisation has continued with the Timor Leste government implementing a referendum package of infrastructure projects in 2009 many of which were in rural areas. In 2010 it introduced the decentralised development package, which decentralised infrastructure projects to the district level. In 2011 the government enhanced the decentralisation of infrastructure projects by introducing decentralised development programs which also decentralised development projects to the subdistrict level. These decentralised development projects have seen significant resources distributed to rural areas, which has prompted a flurry of new companies to be created through Timor Leste. This has in turn created more jobs at the local level. But the quality of these development projects, as well as the political and administrative decision making and implementation under the decentralised system, has differed, primarily due to variable levels of local capacity, at times limited opportunities for local input and minimal government oversight. This suggests that Australian assistance should be directed towards assisting the implementation and oversight of decentralised administrative and justice systems as well as these development projects. Australia can draw on its own long experience of decentralised government and administration as well as our experience of Indigenous justice mechanisms when providing this assistance.

I am pleased to note that since I made my submission—great minds must think alike—AusAID has announced that it will partner with the Timor Leste government in support of a new national program for village development. This program is to be implemented over eight years from 2014 and will see village communities directly involved in the planning, construction and management of infrastructure development projects. Providing people at the local level with the opportunity to participate in their development is likely to enhance the appropriateness and sustainability of these infrastructure development projects. It is also an effective way for the Timor Leste government to deliver development to rural people in a situation where it has few other tools to reach them directly. Improved development and infrastructure in the rural areas may in turn help to strengthen the link between the Timor Leste government and the people living in rural areas. So I commend AusAID on this announcement and I hope that it signals that my proposal for a new focus on the local level will influence other aspects of Australia's assistance to Timor Leste. I am happy to take your questions.

CHAIR: Thank you. I understand what you are getting at and in part I agree with you, but isn't it a question of doing both at the same time rather than an either/or situation? I cannot see how we avoid strengthening the apparatus of the state in such a new nation even a decade after its independence. Are you saying that we should take funds from one area and put them in the local area, or are you saying that if we have extra funds we should put them into local development?

Dr Wallis : I am not saying abandon the work we do with the central government. As you would have heard over the last day or so, there is still a lot of work to do. I am saying that we should redirect some of our funds, though, to the local level, recognising the fact that most Timorese people do live in rural areas. As you would have seen, they are doing it tough. Timor Leste is a very new state and it is understandable that the central government has had difficulty developing the rural areas. This is where I think external donors like Australia could play a role in helping the rural community. So I think it is more a case of redistribution of the funds that we give rather than new funds. I would still maintain our work at the centre but shift the focus to the rural and local areas as well.

Dr STONE: Like the chairman, I certainly understand that there is great value in any country in developing local leadership and capacities to be self-sufficient. I am interested in the local justice functions you talked about being delegated. Can you tell us a little more about what is happening there?

Dr Wallis : Basically in Timor Leste administrative and justice functions have been devolved to the village level in the form of a village leader and a village council. The village leader has powers to create justice mechanisms for minor disputes and for domestic violence. This is basically just recognising what goes on in practice, because the police and the courts are highly centralised in Dili and the major towns and, although their capacity is improving, they do not really have a presence in most rural areas. So, in practice, most people would go to their village chief, as they would call him or her—what the legislation calls their village leader—to resolve the dispute. Basically, the government has made the pragmatic decision to recognise that this is happening and to give it legitimacy by recognising it in legislation.

Now, there are a myriad issues that arise from justice at the local level, and I have tabled an article that I wrote that explores this in a bit more detail. The main issue is that we have done a lot of work, and other international donors have done a lot of work, to establish the rule of law in Timor-Leste which, as you would all know, means that there is a consistent application of a known law throughout the country. The problem with local justice mechanisms as they have been created and as they operate in practice is that sometimes they work to the detriment of the rule of law because local leaders are applying their local, customary law, which might not necessarily reflect the next village over's customary law, let alone what the state law says about that issue.

Having said that, I would argue that recognising these functions at least provides an opportunity for the government to oversee them. Before the government recognised that this was going on and included it in legislation, it had been going on at the village level without any oversight, without any control. Now it has been formally recognised—and I would argue that there needs to be more formal recognition—and the UNDP is actually working with the Timor-Leste government to codify customary law. It is a very low priority at the moment; unfortunately, it has gone onto the backburner. I would argue that recognising the role of local justice actors and the role of customary law does provide the state with the opportunity to have some oversight. For example, if more oversight were to be exercised, there is a proposal that the ombudsman, the providor, whom you might have met when you were there, who has the human rights functions in Timor-Leste under the Constitution, could be given a role in the oversight of human rights practices of local justice actors. There is also a proposal, as happens in other places in the Pacific, to have rights of appeal where, if you are not happy with your village leader's decision, another way around it is to be able to appeal to a state court so you get the external oversight.

This is going on every day. As I said, the average Timorese just does not have the options of the police or the courts that an Australian would. I would argue that recognising and working with the reality is much more productive than what happened before, which was ignoring it and just focusing on building the centralised state institutions, with no routes for oversight.

Dr STONE: Are the village leaders elected?

Dr Wallis : Yes, they are.

Dr STONE: And those elections are regarded as fair?

Dr Wallis : Yes, although we have to remember people often make their political decisions based on priorities that are perhaps different from ours in Australia. The way that the decentralised government system developed in Timor-Leste was that the administrative divisions, the villages and the hamlets had basically been created by the Portuguese colonial administration, but they reflected the reality of what was going on the ground, because the Portuguese used a method of indirect rule. It was much easier to recognise what was going on on the ground than it was to create a new mechanism. That was then used by the Indonesian regime when they were occupying Timor-Leste, and then the UN kept the same administrative divisions. In practice, it was a customary leader, a traditional leader, who led the village and led the hamlet, and those customary leaders were performing governance and justice roles before they were recognised by this legislation—and they continue to do so, sometimes outside this legislation even. The government decided to legitimise these local leaders by electing them.

The elections are considered to be free and fair, but most Timorese tend to elect their customary leader anyway. So, in practice, you really just have a democratic system ratifying what is already in place. Even if they do not elect the customary leader, often the traditional leaders will confer legitimacy on the elected leader. It is very hard to get anything done as a village leader or as a hamlet leader unless you have that local customary, traditional legitimacy. Occasionally, someone who gets elected does not receive that, and he or she—in the main, he—struggles to get anything done. So they are democratically elected, but the Timorese people, as you will see if you get time to read my article, have very cleverly adopted and adapted the liberal democratic system to suit their customary practices and what they have been doing for centuries at a local level.

Dr STONE: In your research, have you been looking—or do you know of others who been looking—at the issue of land tenure and water tenure and the difficulties that then imposes on local development?

Dr Wallis : I would not profess to have expertise in this and there are colleagues of mine at the ANU who have far more than me, but I am a lawyer by training and did some pro bono legal work for one of the largest NGOs in Timor-Leste on the proposed land law. The reason it is taking so long is that there are a lot of problems with that land law. One of them is to do with how it has dealt with customary land tenure. As with most customary practices in Timor-Leste, land tenure is collective, which is very difficult to incorporate into a more individualised titled land system. The solutions that have been proposed in the last draft of the law I looked at were not entirely satisfactory at resolving some of the difficulties of how to manage that collective customary land tenure. I am not an expert though, so would not profess to say more, but there are good people at the ANU who do work on that.

Senator MOORE: I have not read your latest one, but in your submission you talked about the whole process of, when you go to the local level, the issue of women's empowerment. You also mentioned the DV, which we have heard about from other witnesses. Through this process of getting a more localised response it seems to be your concern that this area could have less powerful women. Certainly we have seen in the series of elections in East Timor that there have been strong women elected—perhaps not as many as we like, but we have that in Australia too; nonetheless, there has been a focus of getting women into positions. Do you believe there is an issue at the local level in terms of the existing community structures of maintaining that focus on women in the decision-making and leadership positions?

Dr Wallis : There has been a recognition that in the first round of elections for the village and hamlets in 2005 not many women were elected. I am afraid I do not have those statistics at my fingertips now, but the proportion of women elected in the last round of elections in 2009 did increase, so there is perhaps a slight gain of women leading at the local level. But they are up against a very challenging situation in that traditional Timorese culture is patriarchal and it is often very difficult for women to be able to have their say, in a political context.

A couple of positive moves that the Timor-Leste government has made are that local government law mandates that two seats of the village council have to go to women. Then they have two seats for young people and one of those has to go to a young woman. So at least three seats on the council are for women, which is positive for having a woman's voice out there. How much practical say those women have in village matters is something that I would not be able to speak with authority on, although I imagine it might be sometimes problematic. We have to remember though that change to culture is incremental and that culture is constantly evolving. It is not a fixed change. If you have been hearing about the domestic violence law that was adopted a few years ago, for example, you would have heard that changes have occurred just by the publicising that law and by the socialisation of the process that went about the introduction of that law.

The position of women will be an evolving one. The momentum is positive but it will incremental not a rapid change. One of the advantages of the electoral system that Timor-Leste has chosen for its national government is that the party-list system does mean more women get elected. There are probably more women in the national parliament than there are at the local level. The momentum is positive but women still do face a lot of challenges.

Senator MOORE: It is very strong at the national level and with clear identification and promotion. Does that kind of party politics continue at the local level?

Dr Wallis : If you went to the rural areas, you would see that with every village you could pretty much identify which party they voted for, based on the posters that are on display. In the first round of local elections, political parties did play a very significant role, and that translated some of the divisions at the national level down to the local level. Remember, this was pre-2006; it was before the reconciliation had happened, after the 2006 crisis, so the tensions between FRETILIN and other parties were quite strong, and they did play out at the local level. As a result of this, in the last round of local government elections, parties were prevented from running.

Senator MOORE: That is always difficult.

Dr Wallis : Everybody knows who represents what party, but—

Senator MOORE: They could not be formally identified; you could not run as a FRETILIN candidate or as a candidate of one of the other parties, whose names I do not know as well, but you could not identify yourself in that way.

Dr Wallis : Yes, and that did help water down a bit of the conflict that sometimes happens between the political parties. That is a danger of having elected local leaders. It is just that you translate those tensions down to the local level.

Senator MOORE: And what about the voter turnout at the local levels? Was that as strong as we have seen at the national elections?

Dr Wallis : Yes, although I would note that at the last election it fell off a bit. Electoral turnouts as a rule are strong in Timor-Leste. We have to remember that the Timorese people fought for 24 years for the right to vote, and they take their opportunity when they can.

Senator MOORE: And you are saying that the next round, with the newly amalgamated structure with these new—whatever they are going to be called—

Dr Wallis : The municipalities.

Senator MOORE: Yes, municipalities. You are saying that will not be until well into the future at this stage?

Dr Wallis : The latest estimate is 2014. Some more cynical people say 2015.

Senator MOORE: Do the previous councils continue to operate in that time?

Dr Wallis : Yes, at the level of the districts—there are 13 districts, run by a centrally appointed administration, and at the subdistrict level by administrators who are also centrally appointed. They continue to operate.

Senator MOORE: And the premise of your paper is that that central ownership has to be broken down.

Dr Wallis : The premise of my paper is a pragmatic one, which is that the central government is a long way away from being able to provide the level of public services that Timorese people expect and, I would argue, need. The reality is that at the local level and the hamlet level you have village chiefs and village leaders doing this on a day-do day basis. They need to be given the support and resources to do their jobs. Today is a bit of a false example, because we are at parliament, but think about how often the government is involved in our everyday lives: the electricity we use, the water we drink, the roads we drive on, the laws we comply with. For most Timorese people in rural areas, that is not a reality. They do not have electricity and water supplies, they do not have roads, they do not have a police presence. Their source of law and order is their village chief; those village chiefs have been their source of justice and basic administration. Until recently, those leaders have not been given many resources or powers, although they are getting a lot of this local pressure. So, my basic argument is: let's recognise the reality that we need to help these local leaders, who are really doing the bulk of the governance work for a lot of people in Timor-Leste.

Senator MOORE: So, the premise of this new municipality structure into the future is that they will have their own budgets, the same way we expect them to have. Is that all linked into this change?

Dr Wallis : The municipalities will have elected assemblies with budgets, and the villages and the hamlets will feed up to the municipalities. I argue for it to be decentralised right down to the village and hamlet. The municipalities will at least move some of the state resources closer to that level. But it is really a pragmatic argument, recognising the difficulties that face the central government and the reality of everyday life for more rural Timorese.

Senator MOORE: And a tough geography.

Dr Wallis : Yes.

Senator MOORE: Thank you.

Dr Wallis : Would I be able to make a closing statement?

CHAIR: Of course.

Dr Wallis : I just wanted to thank you again for inviting me to appear. We have discussed today how Australia's assistance to Timor-Leste can be improved. But, regardless of how much assistance we provide or the efforts we make to improve our relationship with Timor-Leste, history remains an important stumbling block. There is a perception that Australia effectively abandoned the Timorese people during World War II and again in 1974 and 1975. Australia was the only country to effectively recognise the Indonesian occupation of the territory. Our leadership during the events of 1999 and the assistance we have provided since has mitigated this to a certain extent. But, until the maritime boundary between Timor-Leste is settled and the exploitation of resources in the Timor Sea is agreed in a mutually satisfactory way there will always be strains in the relationship. It is not my area of expertise, but I suggest that the best way for Australia to improve its relationship with Timor-Leste would be for us to comply with international law as set out in the UN Convention on the Law of the Sea and to refer the question of the maritime boundary to an international tribunal, preferably the International Court of Justice.

The committee should not underestimate how central the exploitation of resources in the Timor Sea is to the Timor-Leste government's strategic development planning, or the amount of popular resentment that is present within Timor-Leste concerning Australia's approach to these resources. Australia is a very wealthy country with one of the highest standards of living in the world. Timor-Leste remains one of the world's poorest countries where 37 per cent of the population live below the global poverty line.

I ask the committee to consider whether Australia is meeting its legal and moral obligations to Timor-Leste when you are preparing your report. Only once we do that will we ever have a truly free, fair and friendly relationship with one of our nearest neighbours.

CHAIR: Thank you for your attendance here today. If there are any matters where we need additional information the secretary will write to you. He will also send you a copy of the transcript of your evidence to which you can make any necessary corrections to errors in transcription.

Proceedings suspended from 13:50 to 14:10