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ESTIMATES COMMITTEE A
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
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ESTIMATES COMMITTEE A
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
Senator Gareth Evans
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ESTIMATES COMMITTEE A
(SENATE-Monday, 8 November 1993)
- Start of Business
DEPARTMENT OF THE PRIME MINISTER AND CABINET
Senator Gareth Evans
- Program 1--Departmental Policy Coordination
- Program 2: Government Support Services
- Program 7--Public Administration And Accountability
- Program 8--Aboriginal and Torres Strait Islander Affairs
- Senator Gareth Evans
- DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
- DEPARTMENT OF PRIMARY INDUSTRIES AND ENERGY
Content WindowESTIMATES COMMITTEE A - 08/11/1993 - DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CHAIRMAN --Senator Gareth Evans, do you have an opening statement?
Senator Gareth Evans --No, I do not.
Senator TROETH --I have seen the list of contributors in the acknowledgment section of Senator Evans's book, Cooperating for Peace . I would like to know the total amount of financial and human resources within DFAT allocated to the research for the drafting and the production of the book.
Senator Gareth Evans --There was a bit of money spent on consultancies. Mr Wilson, a former head of mission, did a major 20,000- or 30,000-word piece on the Hawkins; Mr James Ingram, the former head of the world food program, did a major 30,000-word study on international response to humanitarian emergencies; Dr Peck was a consultant across the board, particularly on preventive diplomacy matters. Mr Critchley, Mr Maley, Dr Kevin Clements and Professor Richardson also contributed on a consultancy basis. The total value of all those consultancies was $69,729. I emphasise that the work done had resonance and utility across a wider front than simply the preparation of the book. Certainly, most of those contributions are worthy of independent publication and will, in due course, be the subject of independent publication, as well as contributing to our understanding of the issues.
There were some comparatively minor expenditures on stationery, but that was just ordinary departmental running costs in my office and elsewhere--I do not know what that was--and a bit of overtime, particularly for the desktop publishing people, including Miss Klima. The total cost was $2,800. So all of that together comes to just over $70,000. The time input from other officers was, of course, treated as part of their normal contribution and not specifically the subject of any other expenditure. I might indicate for the record, in case it is not clear already, that I of course get no royalties from publications of this kind. Those royalties go directly to a ministerial publications trust fund, which is in turn used for the purchase of these things and other books at discount rates for distribution.
Senator TROETH --Is that the absolute destination of the revenues raised by the books?
Senator Gareth Evans --Yes. There is a ministerial publications trust fund that was established when I wrote my first book on Australian foreign policy with Bruce Grant. He had some royalties due to him as an independent outsider but anything that was due to me--a total of $14,230--went straight into that ministerial publications trust fund. Equally, the royalty of 10 per cent per volume on this book for the first 3,000 sold and 12 1/2 per cent thereafter will go straight into that trust fund. I am happy to table that slightly more detailed account of the list of funds committed and spent.
Senator TROETH --Following the recent restructuring of the functional trade and economic divisions of DFAT, where are the trade and economic development aspects of United Nations work being handled within a department?
Senator Gareth Evans --`Trade and development aspects of the UN'--do you mean UNCTAD and matters of that kind?
Senator TROETH --Yes.
Mr Boreham --A number of those functions, particularly related to development issues, have been moved into international organisations and legal divisions and have been located with the environment branch. This brings together a number of economic related issues in the second committee and the economic and social council with which the environment branch was already dealing. So there have been some economies involved in that move. Some other issues related to multilateral economic policy, particularly UNCTAD issues, have been moved into the trade and negotiations division. Some of the specialised agencies, UNIDO particularly and the FAO, are in the economic and trade development division. So the division has been on a functional basis.
Senator TROETH --Other than those areas that you mentioned, has the department retained any formal responsibility for development cooperation policy?
Mr Boreham --We liaise closely with AIDAB on development cooperation issues. The responsibility for it in the department is divided among the three divisions that I have mentioned, but we do stay closely in touch with each other and coordinate on them. So the department does still have an input into development cooperation issues.
Senator TROETH --What financial and human resources of the department, both within Australia and aboard, are devoted to the assessment of the prospects for, and the maintenance and enhancement of, bilateral trade links with China?
Mr Boreham --I am afraid that it is an issue I cannot refer to.
Senator Gareth Evans --In 1993-94 we estimate that $378,342 will be spent in the department in Canberra and $2,627,776 at overseas posts in China directly on bilateral trade links with China. We are grateful for the advance notice that Senator Troeth gave of that. We might be able to table the lot, including the document in relation to India, in which I think there was a similar question outstanding.
Senator TROETH --Yes, that was my next question.
Senator Gareth Evans --There is a further document from Austrade indicating, in addition to the departmental expenditure I presume, what Austrade also spends on this. I will table those two documents--one from Austrade on China and the other a departmental document on China and India. The Indian figure, for the Hansard record, is $285,000 in 1991 and $177,053 at the overseas post in New Deli.
Senator TROETH --In the two months to 31 October, roughly what was the percentage allocation of DFAT staff resources within the embassy in Jakarta to, firstly, preparation for and carriage of visits by Australian ministers including the Prime Minister and, secondly, political and economic reporting on Indonesia?
Senator Gareth Evans --Again, I think we have some material prepared for you on that matter, have we not? I am just advised that the material we will now table gives you that information for the whole year period, not for a break-up of any lesser period of two months or whatever. If you want some further information about that--
Senator TROETH --Would it be possible to summarise it on an annual basis then?
Mr Cotton --We will take that particular part on notice for the two months, and we will certainly come back to you on paper.
Senator TROETH --Would you be able to summarise that roughly for the benefit of the gallery?
Mr Cotton --I am afraid I cannot, not in the detail that you want, other than to make the point that it is fairly hard to actually distinguish specific trade and economic policy work from other functions at the embassy. Officers of the embassy regard their whole activity as having benefits both on political bilateral relations and on economic and trade work. We also make that point to you. We will try to get you some more precise information for the two months that you have sought.
Senator TROETH --What was the exact financial cost, including the salary and allowances whilst stood down, to the department of the investigation and prosecution of charges against Mr Malcolm Dan?
Mr Vincent --The cost of the investigations into the allegations against Mr Dan now totals $119,721. This includes the cost of travel by investigators at Santiago and Buenos Aires, their associated accommodation and allowances and legal expenses. We are not in a position to give details of the salary costs of the officers engaged in the investigation, because that would have been part of their duties.
Senator TROETH --What staff resources, in numbers, were allocated to the case?
Mr Vincent --There are currently three staff working largely on the case in the fraud and discipline section under my direction. I should say that these officers are also doing other work.
Senator TROETH --What percentage of their time for, let us say, the last six, nine or 12 months would have been devoted to the charges against Mr Dan?
Mr Vincent --I am told by my colleague that over the last six to nine months probably about 30 per cent of the total working time of the fraud and discipline section was devoted to the investigations into Mr Dan or the allegations against Mr Dan.
Senator TROETH --Given the apparently groundless nature of these charges, does the department--
Mr Vincent --Senator, I am sorry, but may I say that they were very serious allegations. It is our responsibility as a department, and indeed our responsibility to the parliament, to investigate these allegations seriously. That is what we have done. They were not unfounded. I am sorry, but I must make that point.
Senator TROETH --I understand that you must have had some degree of a case to proceed on. I am simply wishing to ask you about the procedure by which you choose targets for investigation.
Mr Vincent --We do not choose targets for investigation. When allegations of impropriety are brought to the attention of the department, we are bound by our obligations as public servants to investigate them, and we do so. We do not choose targets.
Senator TROETH --They present themselves to you?
Mr Vincent --No, they do not present themselves to us. Allegations are made, or evidence comes to our hands, that there may be an impropriety. On that basis, we carry out the investigations.
Senator TROETH --There must obviously be a basis on which you choose to proceed against some people rather than others. I am simply asking you the rationale on which this happens.
Senator Gareth Evans --There is no basis on which you choose to proceed against some rather than others. As Mr Vincent says, if information comes to hand from any source suggesting that there may have been a breach of disciplinary requirements or other obligations imposed upon officers, then an appropriate investigation is followed. If that preliminary investigation suggests there is material such as to justify formal disciplinary hearings or charges being laid, that occurs, come what may.
Senator TROETH --Do you proceed to investigate, even at a preliminary level, every charge of impropriety that comes to your attention?
Mr Vincent --Yes.
Senator Gareth Evans --Of course we do. It would be an absolute breach of all sorts of obligations to run a proper department if we did not. The difficulty is when you get a series of manifestly harebrained or maliciously motivated allegations of the kind that we had to deal with for a long period over the last couple of years, which were exhaustively dealt with by the Senate committee that inquired into the department--the so-called whistleblower stuff. It is very difficult to know how seriously to take some of those sorts of allegations, but the department emerged from that process, I think, with its reputation well and truly enhanced because it demonstrated an absolute seriousness of purpose in the way in which it handled that.
Senator TROETH --That is why I asked you whether you proceeded in every case. I have the answer that I required. Thank you.
Senator KEMP --I would like to raise again, I hope in a briefer manner, the issue of the payment of $107 million to Nauru. Minister, since the last committee hearings you have been kind enough to provide me with a document entitled Counter-memorial of the Government of Australia to the International Court of Justice, which strongly argues the case as to why Australia should not be paying the $107 million. I have to say that I have read it and I find it very convincing. It is a very powerful document. I think the expression that was used was `a well-formulated document'. I have also asked for the advice as to why the government decided it should pay the $107 million. The government has provided me with advice as to why it should not pay, but I cannot get from you the advice that I think you indicated you had as to why the government should pay. Can I put it to you that it is a very unbalanced position that we now have.
Senator Gareth Evans --Mr Chairman, you would expect the government to be putting its strongest possible foot forward in the context of the production of a counter-memorial. You would hardly be expecting a counter-memorial to be acknowledging weaknesses in the case.
Even if we believed that we were in difficulty, in terms of ultimately winning the case, when settlement negotiations are still proceeding you would hardly expect us to do other than put our best foot forward. The fact that a strong and persuasive looking argument has been put forward does not necessarily conclude for one moment the question of whether, objectively, that argument was likely to prevail at the end of the day. The government's own view, as I have said, was that it was not.
The view put to us in formal advice, conveyed to us by the Solicitor-General and others, remains confidential to us because it is a part of the cabinet process that has been embarked upon by the government. You can have it in 30 years under the archive rule, but for the moment that is the view that we have taken.
Senator KEMP --I do not want to debate the point, but the government has provided the committee with a document as to why it should not pay the $107 million.
Senator Gareth Evans --One is a public document; the other is a confidential document. That is the simple reason for that.
Senator KEMP --Can I finish? We have no document from the government which says why it should pay--and, of course, it did pay the $107 million. Minister, was the legal advice that you received very clear cut that you should settle?
Senator Gareth Evans --Yes. It also conformed wholly to my own judgment--for what that is worth, which may not be much for you, but there it is.
Senator KEMP --That rather downgrades it.
CHAIRMAN --The minister is conscious that he cannot give a legal opinion.
Senator KEMP --The government was advised by the Solicitor-General and others, you said; is that right? What others were involved in this advice?
Senator Gareth Evans --Our own counsel, I guess, were part of it. I have forgotten the detail now, but it was a considered judgment that this was not going to be a case that could be easily won, if at all, given the experience we had in the first procedural stage of it when new law was invented holus-bolus by the international court and the way it saw the thing as running. In the meantime, we saw Australia's international reputation continuing to be prejudiced by the campaign, in effect, that was being waged against us. We would have borne that with such fortitude as we could command if we thought we were going to win it eventually, but in a circumstance where we did not think we could win it, we made the judgment accordingly that it was time to embark on some serious settlement negotiations. Then the judgment was made that the quantum figure of the order of magnitude that emerged here was an appropriate one in all the circumstances, bearing in mind some of the enormous uncertainty we faced as to what the quantum of damages might be.
Senator KEMP --What is the population of Nauru?
Senator Gareth Evans --About 8,000.
Senator KEMP --So the settlement of $107 million would provide a per capita compensation?
Senator Gareth Evans --It is not proposed to be doled out in that way, as I understand it. Although it is a matter for the Nauruan government as to what it does with the money, it is proposed to be spent on basic rehabilitation of the landscape.
Senator KEMP --With the $40 million that has already been paid, I understand, that works out at about $5,000 per head. For a family of four--assuming that is the average family--that is a payment of about $20,000. It is a lot of money--not quite as much as the Gould paintings in the cabinet room, but still a substantial sum. I put it to you that when the full amount of money is paid--the $105 million--it will be over $40,000 per family, which is a very substantial sum. I think a fear was expressed that the government having decided to settle this case rather than pursue it would establish a precedent which may well come back to haunt it.
Senator Gareth Evans --I am sorry, I do not recall expressing any concern about precedents coming back to haunt. I think that is your own gloss.
Senator KEMP --No, but others have expressed concerns--
Senator Gareth Evans --Unspecified others.
Senator KEMP --A shadow minister, Mr Peacock, has expressed concerns.
Senator Gareth Evans --Others like that. Okay.
Senator KEMP --Some would say one of the best people to have held the office that you currently hold. I would say that as well. Mr Peacock has queried this on a number of grounds, one being the precedent that may be set for other claims. I noticed that the Minister for Foreign Affairs of Papua New Guinea in his visit to Australia last week also raised that issue. I think he referred directly to the precedent that was established by the massive payout to Nauru. During your discussions with the foreign minister, what matters did he raise with you and what responses did you give, particularly in relation to compensation?
Senator Gareth Evans --He did not raise that issue with me at all. I am not especially surprised that he did not raise it, because there is no discernible substance that I can see in any such proposition. There is no comparability whatsoever that I can see between the pre-independent situation that applied in PNG and that which applies in Nauru.
Senator KEMP --Although he did raise it at the National Press Club.
Senator Gareth Evans --He raised all sorts of things at the press club.
Senator KEMP --I am just asking you; do not get aggressive.
Senator Gareth Evans --I am not getting aggressive. I am just telling you that he raised lots of things. Perhaps after more mature consideration he thought that some of them were not justified in being raised with me, for whatever reason.
Senator KEMP --You referred earlier to the `surprising development of new law' or words to that effect in relation to the International Court of Justice. My understanding is--I think you may be able to confirm this--that Australia has given the International Court of Justice a virtually unqualified right compared with most other countries.
Senator Gareth Evans --We accept the jurisdiction without reservation.
Senator KEMP --What other countries similar to ourselves also accept the jurisdiction without reservation?
Senator Gareth Evans --There are quite a few. I cannot remember them off the top of my head, but we can provide that information if you want it. I think it has already been pulled out in some other context recently.
Senator KEMP --That would be a help. The department has provided me with some information on that.
Senator Gareth Evans --In fact, I think we provided you with some information about that.
Senator KEMP --Yes, that is what I just said, but I do not think it was a comprehensive list. If it was I would be surprised. Perhaps that matter could be looked at.
Senator Gareth Evans --We will follow that up.
Senator KEMP --In view of the fact that the International Court of Justice seems to be acting in a somewhat surprising manner--to use your own expression--do you think we should still maintain our current standing before that court, particularly an unreserved standing?
Senator Gareth Evans --I see no reason not to. We are strongly committed to international institutions, including legal institutions, as dispute resolution mechanisms. It is not altogether surprising that, just as in domestic situations, the common law process does result in new law being made from time to time. So too that happens internationally. What seems to be emerging is some kind of doctrine of trusteeship. The only point I was making is that there is nothing in the precedent, nothing in the case law, that would have given any particular comfort to Nauru when it embarked upon that case. It became clear from the first proceeding that there was a disposition to identify some principles of that kind. I think we have to bear these things with such fortitude as we can command.
Senator KEMP --The sum of $107 million is 107 million reasons why we should perhaps tread a bit more warily in these areas.
Senator Gareth Evans --If you take the view that maybe there was some moral justification, quite apart from anything else, for the Nauruans' concern about the destruction of their landscape and that it was appropriate under the circumstances that we bear some responsibility for the rehabilitation of that land, that is perhaps a response that Mr Peacock and others might be prepared to make on occasions--redolent with humanitarian attitudes as they are.
Senator KEMP --It was clear from the information which you have been kind enough to give us that two-thirds of the mining on the island occurred after 1967, which was after Australia left the island, and no money has been spent by the Nauruan government on the rehabilitation of the island. They do not come, as you so well put in this document, to this case with clean hands.
Senator Gareth Evans --Maybe not, but they are not quite as dirty as you are suggesting.
Senator KEMP --I am just quoting the material which you were kind enough to give me.
Senator Gareth Evans --It was a very well written document.
Senator KEMP --That is what I have said. I read it and was very much convinced by it. I am surprised that the government, having been convinced by it, then decided to pay out $107 million of taxpayers' funds.
Senator Gareth Evans --You are usually persuaded by only one side of the story, I know.
Senator KEMP --One of the matters that you brought to our attention was that the Nauruan government was particularly strapped for funds. In the discussions regarding the financial position of the Nauruan government, was the issue of Allen, Allen and Hemsley raised?
Senator Gareth Evans --Not that I am aware of. It may have been, but I do not know what you are referring to.
Senator KEMP --The Nauruan government has a claim in against that particular law firm as a result of the loss of some $12 million of trust funds.
Senator Gareth Evans --I am familiar with the claim you are referring to, but I do not think that featured in any way during our discussions.
Senator KEMP --That matter was not raised?
Senator Gareth Evans --Not that I am aware of.
Senator KEMP --Could that be checked?
Senator Gareth Evans --It can be checked, but I would like to know what the context is.
Senator KEMP --One of the reasons that you gave for the need to pay $40 million up-front to the Nauru government was that it was in a very strapped financial position. I wonder whether its strapped financial position related to the losses of money which occurred from the trust funds as a result of the activities of Allen, Allen and Hemsley.
Senator Gareth Evans --That may well have contributed to Nauru's cash flow problems. We can check that out, but I do not think it is terribly pertinent to any public interest issue here. We will have a look at that.
Senator KEMP --I think it is pertinent. I would just record that we have not got the legal opinion as to why the government has paid over this vast sum of money. We have the legal opinion as to why the government should not pay it over. I think that leaves the committee with some dilemmas. But I will go on to the next matter that I wish to raise with the minister: the complaints that can now be made to three UN human rights committees.
As I have said before, I believe this was a very important decision by the minister because it will have important effects on Australian law. It will allow Australians to take domestic disputes in a variety of areas offshore which I, at least, see as being contrary to the philosophy of the Australia Act. The minister has written somewhat extensively--about $80,000 worth of writing--recently on reform of the UN. In recent weeks I have had a chance to read some commentaries on the work of these various human rights committees. These reports were written by people who were broadly in sympathy with the work of the committee and who saw the need for substantial reforms. In your proposals for reforms of the United Nations, before you made your decision, did you have an opportunity to look closely at just how these various human rights committees operate?
Senator Gareth Evans --I have not dealt in that book, or in any other work that I have done personally, in any way extensively with the economic and social side of the UN's agenda where the UN human rights machinery is presently located. I certainly know that so far as the UN is concerned it is rather strapped for cash right across the whole range of human rights activities, but that is not an area which I have closely personally examined.
Senator KEMP --Would it not have been prudent--
Senator Gareth Evans --My book exercise was all about the peace and security side of the UN's agenda. It was not directly related to this.
Senator KEMP --In making the decisions you made in relation to opening up appeals to these committees, including the first optional protocol, I have to express some surprise that you did not look closely--
Senator Gareth Evans --You and I know perfectly well that the human rights committee hears and determines these matters--not in any way that actually allows sanctions to flow from the decisions, but it does have a determinative impact. These are perfectly respectable committees with perfectly respectable combinations of people on them. We certainly satisfied ourselves to that extent. Mr Boreham might like to comment further on that.
Mr Boreham--We have, under Senator Evans's direction, given a good deal of attention to the question of resources and organisation at the Centre for Human Rights in Geneva, which provides the servicing for the human rights committee and the other committees under the UN human rights declarations and conventions. We were, as a delegation at the world conference on human rights in Vienna, particularly strong in supporting calls for increased resources for the centre. Our delegation particularly worked very closely with the delegation of Singapore which paid a great deal of attention to this issue. We considered that the outcome in the declaration pointed the way for increased resources for the centre.
In the current draft budget for the 1994-95 biennium, the Secretary-General has proposed a 10 per cent real increase in resources for the Centre for Human Rights. We will be, in our delegation to the fifth committee at the General Assembly, strongly supporting that increase in resources because these committees are significantly under-resourced. These are all directions which we have been given by Senator Evans.
Senator KEMP --Thank you for that. One of the concerns which has been expressed by a number of observers is not only the issue of resources, but also the issue of independence of the individuals on this committee.
Senator Gareth Evans --The one with the funny names that we discussed previously. Is that it--foreigners?
Senator KEMP --If you want to sneer at people with funny names--
Senator Gareth Evans --No, you were, previously.
Senator KEMP --No, I said nothing. You were the one who opened up this line.
Senator Gareth Evans --I am just establishing your frame of reference again by your last contribution to this committee.
Senator KEMP --I do not know whether you think they are funny names.
Senator Gareth Evans --I suspect you do because they are foreigners.
CHAIRMAN --Order! I think we might get back to the question.
Senator KEMP --Minister, this is a very serious matter. A number of observers have pointed out that some members of these committees are not independent but tend to operate in close association with their own governments. I can quote, for example, a Louis Henkin, in his book entitled the Age of Rights. In relation to the human rights committee, he states:
The Committee is composed of independent experts but, as other bodies of international experts, some are not independent in fact but subject to substantial control by their governments.
It is a serious matter, as Australian cases are going to these committees and rulings will be made. Are you aware of those complaints which have come from a number of observers? What is your response to them?
Mr Boreham--In respect of the UN human rights committee, when you look down at the countries which have independent experts who are represented on the committee, almost all of them are flourishing democracies. It is difficult to point to any of them, with the possible exception of Yugoslavia, where what you have said might be true--I think even in that case it is not. The problem with the functioning of these committees does not exist in terms of their representatives, who are elected by meetings of the states' parties to the convention and have to be people with an independent and highly moral reputation in this area. The problem exists with the servicing of the committees and the resulting length of time that it takes them to bring out their determinations.
Senator KEMP --I think there is a servicing of the committee problem and I will come to that. But, for example, in relation to the members of the human rights committee I have looked at the countries that have nominated people and looked at the Freedom House rating of those various countries. I do not have the figures here, but some four or five of those countries are simply either classified by Freedom House as being not free or partly free.
When you go to members of the UN Committee on the Elimination of Racial Discrimination that ratio rises very substantially. I think 10 of the 18 members of that committee come from countries that are classified as either not free or partly free. Are you aware that attacks have been made by very eminent, competent people that there is an independence problem in relation to these committees? Are you saying that the concerns which have been expressed by various writers are just not substantiated?
Senator Gareth Evans --There are always writers with axes to grind on these particular matters.
Senator KEMP --These people are generally positive about the committees but they just recognise that there is an independence problem.
Senator Gareth Evans --Just because some unknown writer in some unknown publication has made some broad brush suggestion of that particular kind, I do not think that is any basis for engaging in equally broad brush condemnation of Australia's decision to expose ourselves to process before some of these committees and, in particular, the human rights committee, which is a highly regarded international committee comprised of highly regarded people. We will be happy to give you some more biographical information about the particular individuals concerned.
You are talking about racial discrimination committees and so on. There are less significant consequences that flow from process before that particular committee. In any event, one would expect a committee of that kind to have a heavy component of people from developing countries which, by and large, do tend to give rise to some of those Freedom House concerns. But that is in the nature of international organisations. I think you really have to have some more specific chapter and verse before you assault the general integrity of these committees and the people involved with them.
Senator KEMP --I have not met these committees and I have assumed that you, as the person who opened up Australian law to these committees, would have looked closely at it. I am a bit surprised that the comments I have made which were not difficult to find--they are in a variety of publications--have come as a bit of a surprise to you.
Senator Gareth Evans --League of Rights publications, Larouche publications, Liberal Party publications?
Senator KEMP --Don't be pathetic.
Senator Gareth Evans --What sort of publications?
Senator KEMP --Let me quote a recent book published about human rights and the United Nations edited by Professor Philip Alston. You have heard of Philip Alston?
Senator Gareth Evans --Yes, indeed.
Senator KEMP --I would regard him as a perfectly eminent writer.
Senator Gareth Evans --He is the chair of one of these committees in fact.
Senator KEMP --He has in fact put together a book. As I said, he has generally approached these issues in a positive light but he has raised issues of the independence of these committees.
Senator Gareth Evans --He himself or one of his contributors?
Senator KEMP --The contributors to the book. As the editor, he presumably chose the contributors.
Senator Gareth Evans --He is letting 100 flowers bloom. These are views that might be expressed by people. They are not necessarily objective views.
Senator KEMP --Not necessarily, but I would think that if you are going to reverse the philosophy of the Australia Act, which I thought you blokes were all in favour of, and open up our legal system to foreign committees and allow Australians--
Senator Gareth Evans --Foreign committees--people with funny names. Here we go again.
Senator KEMP --to take their cases offshore, you would have examined closely the operation of these particular bodies.
Senator Gareth Evans --At the end of the day, as I have said before to you, the Senate and this committee, none of these committees can make decisive judgments that have any kind of self-executing impact on either the content of Australian law or so far as any sanctions are concerned. They are purely declaratory in character. People who have exhausted all process in Australian law are entitled to have their day before these committees, in our judgment, if they think a case is strong enough to justify it. If the committee concludes that it is, that is something, again, that we will bear with fortitude.
Senator KEMP --It is not a matter of bearing it with fortitude. It is a matter of whether it is right for our country and whether it is appropriate for these committees to have an impact on Australian law.
Senator Gareth Evans --Either you are serious about international standards of human rights and about the international process that is associated with the recognition and enforcement of those rights or you are not. If you do not take seriously the international declarations and covenants, then you will not take seriously any international machinery that is established under them. But we are very comfortable in this place about throwing our weight around about the human rights situations in other countries, particularly Vietnam--
Senator KEMP --I have some Vietnamese--
Senator Gareth Evans --And there are legitimate grounds for concern. But the best way of articulating that concern is by reference to international standards. If you are going to apply those international standards, you have to put your money where your mouth is in terms of your own willingness to be seen to be willing to be judged by them. That is what the logic of this is all about.
Senator KEMP --Frankly, I am very unenthusiastic about being judged by these committees.
Senator Gareth Evans --Go on!
Senator KEMP --Mainly because I believed in the general approach of the Australia Act which was to make sure that we had a self-contained legal system, and you were the strongest advocate of that. Now five years down the track--
Senator Gareth Evans --It is still a self-contained legal system.
Senator KEMP --If you read Mr Justice Brennan in the Mabo case, and Mr Justice Kirby, they believe--as I believe--that what you have done is a very significant and important decision for our legal system.
Senator Gareth Evans --Hang on. They are referring to the potential applicability of certain general principles that are applicable under the international covenants as they perceive those principles to be. They are not talking about any overriding impact on Australian law of determinations made by particular committees or machinery of the kind that you are presently concerned with. What you are really saying is that you do not like the notion of our adhering to international covenants and conventions at all because the mere fact of that adherence might filter somehow those standards back into Australian law, as some judges are minded to allow to happen. That is a different issue to the one about these particular committees. You are just sliding from one to the other with gay abandon.
Senator KEMP --I am not sliding from one to another. I am just saying that I think that, as general aims and intentions, probably no-one would have too many queries with various UN treaties, but once they start to have a constitutional impact, once they provide an alternative plane of law for Australians to go to--for example, a decision of these committees may well provide the Commonwealth government with a head of power to override an action by a state government, even in the area of criminal law--I agree with Mr Justice Brennan and Mr Justice Kirby that these are very important decisions that you have made.
My argument, however, is that we need to look closely at the nature of these committees. If they are going to have an impact on Australian law, is it appropriate that committees so constructed, that have the processes by which they operate, should have this impact? My judgment is `No'. You have raised the resources issue for these committees, and I think there is a real problem. My understanding is that most of the decisions of these committees are broadly written by the secretariat, rather than by the individuals so named. The committees meet at the most for nine weeks a year; some in fact meet less. We have the independence issues in relation to some members. Some members of these committees have been criticised as not being independent of their governments.
CHAIRMAN --Senator Kemp, I think you are ranging over a number of areas. Could you come to the question?
Senator KEMP --I am making the point to the minister that these committees are not appropriately structured. I was seeking his view as to whether he sees any problems--and apparently he does not. Is that correct? You see no problems in relation to independence, no problems in relation to resources, no problems in relation to due process before these committees?
Senator Gareth Evans --I have not had anything drawn to my attention which gives me ground for thinking we have any kind of serious problem in terms of either the quality or integrity of these committees and the people upon them. If you give me some specific chapter and verse that might give me ground for thinking there are problems about the quality or integrity of the people, other than the fact that some of the countries from which they are appointed do not rank as highly as other countries in terms of American magazines' assessments of who counts and who does not in the human rights league, I would be delighted to try to respond. But there is simply no ground for that degree of concern that you are expressing, I believe, on the basis of the information that is available to me.
Senator KEMP --I do not want to take up too much time--
Senator Gareth Evans --That is a relief.
Senator KEMP --But I will say, in relation to due processes, the committee hearings are largely held in camera; that it is possible, where a state government is involved, that the state government may have no standing before these committees, and yet the determination of the committee--
Senator Gareth Evans --Have any such cases arisen? Or is this all speculative?
Senator KEMP --No. I have sought legal advice on these issues from people I regard as having some interest in the matter, but I put it to you that these are serious matters. You asked me to put questions to you on this, and I would like you to look closely at those issues and give me a response. To get on to another issue, in relation to the UN Committee on the Elimination of Racial Discrimination, we make regular reports to this committee and, I think, in fact, to other committees. You have provided me with the Ninth periodic report of the government of Australia.
Senator Gareth Evans --That is the one recently tabled, yes.
Senator KEMP --Yes, for the period to June 1992. Can I ask you this: do you read these reports before they go in?
Senator Gareth Evans --I flick through them. I cannot pretend always to read them absolutely meticulously. It depends on whether my attention is being distracted by teak tables and bathroom tiles in the Lodge and other such excitements.
Senator KEMP --It is such a strain being foreign minister, is it not--such a strain!
Senator Gareth Evans --A little more demanding than your luxurious life of wallowing around the recesses of the irrelevant.
Senator KEMP --I am prepared to swap any day.
Senator Gareth Evans --Eat your heart out.
Senator KEMP --Stop complaining, then.
Senator Gareth Evans --I am not complaining. I am just saying that sometimes a report like that, which has been the subject of very detailed and extensive consultation within the bureaucracy as between two departments, is not one that I am particularly minded to second-guess as to any content of it, so I just broadly familiarise myself with it. I basically let those things go through on the nod.
Senator KEMP --We make this report about human rights activities and racial activities in Australia to a committee which has as its members these government nominees: a Cuban, an Egyptian, a Ghanaian, a Nigerian, someone from China--
Senator Gareth Evans --So?
Senator KEMP --All governments that in no way could be described as democracies, some of which have serious racial problems themselves. These are the nominees of those governments. There is someone from Romania, someone from the Russian Federation and, as I said, under the Freedom House listings there, 10 members of the committee are nominated by governments which are certainly not free or are only partly free. We report to this committee. We send a report which, among other things, tells this committee about the racial problems in this country. We quote reports which talk about discrimination against Muslim women, and we go on about how racism is entrenched and institutionalised in Australian society.
I put it to you that my concern with this report is that it is so incredibly unbalanced that I feel sorry for any public servant who has to draft such a document when one thinks that Australia is one of the freest and most tolerant countries of the world. To have to put together this report, to report to Cuban and Chinese people and so forth about how awful we are, I feel is a wrong use of public servants. If ministers' officers wish to do such a thing, they should be able to do it. Can I put this to you: do you feel it is appropriate to report in such terms to such a committee?
Senator Gareth Evans --It might come as news to Senator Kemp that the world is not full of white, Anglo-Saxon protestants; really there are a lot of different people from a lot of different countries. If we want to get decent standards prevailing about racial discrimination and other major human rights issues, and we want our views to prevail as to what is right and what is wrong, we have to expose ourselves to scrutiny. You cannot have double standards and argue that it is appropriate to range around in other people's internal affairs, as they would describe them, but not expose the motes in the eye that we have ourselves--and, let us face it, there are a few.
It is perfectly true that in total the racial climate here is as comfortable as it is anywhere in the world, because of the effort that we have put into, not with much help from you lot, multicultural affairs and all the rest of the apparatus of law and social policy that goes to produce that result. We have been doing our best, and I think on balance Australia's performance is very highly regarded. The fact that we are prepared to delve around and identify all the things that are not absolutely perfect in the way the society operates at the moment stands to our credit and gives us that much more credibility when we in turn do want to question the performance of others. What it is all about is trying to improve standards across the world.
Senator KEMP --One expects these slurs from you about ourselves. I am surprised, Mr Chairman, you did not pick up the minister when he said that. It does not help the consideration of the committee.
Senator Gareth Evans --Which slur was that?
Senator KEMP --`With no help from you lot'. Yes, `Which one' is probably an appropriate question.
Senator Gareth Evans --Multiculturalism has not been of much help to you lot. We have to concede that.
Senator KEMP --Minister, you were right when you said that we are probably the freest and most tolerant country in the world. But there is no hint of this in the report which you sent off to this committee. There is no sense of balance or any sense of the Australian achievement. I am utterly opposed to reporting to such a committee and letting it come back and ask us questions. I believe that the committee is tainted by the fact that so many of the nominees on that committee come from governments which are not democracies.
You apparently think that that is acceptable. I do not understand your views, but I recognise that you are the Foreign Minister. This report shows no sense of that balance. That is why I asked you whether you had read it. If these Cubans, Chinese, Romanians and Russians read this report, they would think that Australian society was riddled with racism.
Senator Gareth Evans --I do not think that is a fair comment. There are masses of things in the report. Paragraph 2 and paragraph 14 state that the central objective of the government is the achievement of a fairer and more just society. The report also states that the ethnic, racial and religious diversity of Australia means that--
Senator KEMP --Show me where in that report it states that Australia is one of the freest and most tolerant societies in the world today. You will not find it.
Senator Gareth Evans --That kind of vulgar drum beating is not for us to engage in; it is for others to make a judgment about--and they do.
Senator KEMP --If you are going to flagellate in public in front of this committee--
Senator Gareth Evans --There is only one person who is flagellating in public at the moment, and that is you.
Senator KEMP --If you are going to flagellate about how awful Australia is, as you have in this report, do you not think that, to give a sense of balance, it may be appropriate to look at the Australian achievement in this area?
Senator Gareth Evans --I believe that this report addresses some of those achievements because it talks systematically about all the efforts that are being made to combat--
Senator KEMP --Get your officers to point out where it says, to use your words, that Australia is one of the most tolerant and free countries in the world.
Senator Gareth Evans --That kind of vulgar self-promotion is not part of our repertoire. It might be part of yours, but--
Senator KEMP --Nothing is more vulgar than reading in a report that racism in this country is institutionalised. To report to such a committee--
Senator Gareth Evans --Where does it say that? Where is the expression `racism is institutionalised'?
Senator KEMP --Stick around and I will find it for you.
Senator Gareth Evans --I will.
Senator KEMP --I will give it to you. Your officer might also be able to find it.
Senator Gareth Evans --I do not remember that phrase appearing--and nor do you, by the sound of it.
Senator KEMP --Can you provide to this committee the various reports for the last three years that you have made to the members of the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination and the UN Committee Against Torture. Can you provide to this committee the reports that you have made. To save time for us all, can your officers mark out in those reports the points about the positive sides of our country as distinct from anything which is negative.
Senator Gareth Evans --The latter part of the question is a matter of subjective judgment. We will leave you to do that.
Senator KEMP --It is not subjective.
Senator Gareth Evans --We will be happy to supply the reports.
Senator KEMP --I will now move to the Gillespie case. Can you update the committee with what has precisely happened since the last hearings in which, as I understand it, the government had sought the extradition of the Malaysian prince from Malaysia.
Senator Gareth Evans --A formal extradition application was lodged. Unhappily, that has now been rejected by the Malaysians. The decision to grant extradition requests is at the discretion of the relevant minister--in this case, it happened to be Dr Mahathir, wearing his hat as the Minister of Home Affairs. No reasons are required to be given under Malaysian law for this, nor have they been given. However, the law minister has publicly stated that, in his opinion, Raja Bahrin was unlikely to be extradited as he did not appear to have committed any offence under Malaysian law; that is to say, the alleged offence did not meet the test of dual criminality. I guess we are rather presuming that, to the extent there was any formal legal basis for the decision as distinct from a merely discretionary one, it was probably based on a Malaysian assessment of that issue.
Under Malaysian law, extradition requests can only be considered by the courts following a decision by the relevant minister--the home minister--to refer the issue to the courts. In this instance, the home minister decided not to refer it to the courts, and that is a decision which he is entitled to take at his discretion. The net result of all that is, as the Attorney-General here has said, that unfortunately there now appear to be no other legal avenues open to the Australian government to help resolve this matter.
Senator KEMP --Are you happy with the way that the case was handled--as distinct from being happy with the outcome--in that it did not go to a court?
Senator Gareth Evans --I have just said that it is a matter for the discretion of the minister concerned as to whether to refer it to the courts. Under the Malaysian legal system, he is entitled to exercise his discretion in that way. He has chosen to do so. I will not second-guess that. Obviously, we are disappointed that that decision was made. It was always possible that it would be, and everyone knew that when the extradition application was first made. I hope there was no suggestion that we were anything less than assiduous in compiling the material in support of that application, because we were.
Senator KEMP --We have been over this ground in the past. Being assiduous and wanting to help the individual concerned, are you prepared to meet Mrs Gillespie to discuss with her the outcome of the case and to explore any potential options?
Senator Gareth Evans --If I thought that some useful purpose was likely to be served thereby, but I cannot honestly think of any purpose that would be served. We have made innumerable approaches--through me personally, through our High Commission in Malaysia and through channels of that kind. We have done everything we can on the legal side through the Attorney-General's efforts. It seems that we have drawn a blank at the end of the day.
As you well know, even if the extradition had succeeded, it would not have helped as far as access to the children is concerned. All I can suggest to Mrs Gillespie is that she follow the path that she has apparently recently embarked upon of writing to the kids in the hope of re-establishing contact and in the hope, through personal efforts of that kind, of creating a better environment which will enable some happier compromise to be reached in the outcome of this. In my judgment, nothing more the government can do is likely to help in any way, shape or form. I regret that, but there is nothing more we can do.
Senator KEMP --If Mrs Gillespie feels that a meeting with you would be of value, are you prepared to meet her? If she would like to meet with you to discuss this matter, are you prepared to meet with her?
Senator Gareth Evans --I am not sure honestly that any useful purpose would be served thereby. It is not especially helpful when I am accused as recently as a few days ago of grovelling sycophancy to the Malaysians. I think Mrs Gillespie has made her views perfectly clear on the record as to what she thinks of my performance in this matter. I regret that she has chosen to characterise it in that way. I have done nothing throughout the course of this case except try to be helpful. I honestly do not think anything more can usefully be done.
Senator KEMP --Are you saying, just to clear up any confusion which may appear from what you have said, that you not prepared to meet with Mrs Gillespie?
Senator Gareth Evans --I cannot presently think of any useful purpose that would be served thereby.
Senator KEMP --Do you not think that if you were prepared to meet with Mrs Gillespie it might serve a couple of purposes? It would enable you to put to her the view that you have just put to us that you believe that you have done everything possible.
Senator Gareth Evans --That view has been translated to Mrs Gillespie on innumerable occasions through my departmental officers and in my public statements, of which I do not think she is oblivious. I very deeply sympathise with her plight. I am prepared to give all sorts of understanding to the stress and strain that she has been under--that has motivated me throughout--but there is nothing more that I can usefully do. I have corresponded with her in the past. I repeat that there is nothing more that I can usefully do.
Senator KEMP --But, if she happens to feel that it is of value to speak with our Foreign Minister about an international case which directly involves her, I put it to you that it would serve the purpose of allowing you to put a position to her and to canvass with her other options, and that it would probably signal to the Malaysian government that you take this case as seriously as you say you do before this committee. It would have a very salutary effect on that score.
Senator Gareth Evans --I will bear in mind what you say, Senator Kemp, but I have no further comment on this subject at this stage.
Senator KEMP --So there is no message I am able to give to Mrs Gillespie that you are prepared to meet her?
Senator Gareth Evans --I repeat that I have no further comment to make at this stage.
Senator KEMP --That is a great pity. She is an Australian who has lost her children. It is a sad reflection on your office.
CHAIRMAN --Order! Are there any further questions?
Senator Gareth Evans --I think we can do without the editorials from you or anyone else who might be minded to make them on this particular subject.
Senator KEMP --It is not a big request.
Senator Gareth Evans --Very few people could have done more than my officers, the Attorney-General and I have done in the circumstances of this case. I cannot think of anything that could sensibly have been done that has been left undone.
Senator KEMP --One thing you can do is meet Mrs Gillespie. You can do that very easily. I am surprised that you refuse to do it.
Senator Gareth Evans --A little courtesy cuts both ways in this situation.
Senator KEMP --You're a big boy. You've been around for a long time.
Senator Gareth Evans --While I fully understand the stress that people have been under in this respect there are limits to the degree to which I am prepared to be responsive to people who do not seem to fully appreciate what others are trying to do for them. That is my last word on the subject.
CHAIRMAN --I think we are getting into debate now. Are there any other questions on program 1?
Senator KEMP --I will now follow up some of the matters we raised in relation to human rights issues in Vietnam. I have three matters that I would like to put before the minister. Firstly, there is the case of Dr Nguyen Dan Que. His family is worried about his wellbeing and safety. This follows an incident related to US Senator Charles Robb's visit to Vietnam, which, among other things, was to meet with Dr Que who is in prison. Dr Que has apparently been maltreated and moved to a secret place of detention. The family does not know where he is now. Is it possible to ask where Dr Que's place of detention is and request that he and other political prisoners be visited by the International Red Cross? I put his name on the record so that you can perhaps pursue the matter.
Senator Gareth Evans --I think Mr Kupa may have some information that he can give you now about Dr Nguyen Dan Que.
Mr Kupa --During the recent parliamentary delegation to Vietnam one of the members of that delegation met an acquaintance of Dr Nguyen Dan Que in Ho Chi Minh City and certain information flowed from that. Our understanding is that he is currently being held in camp K3 of prison Z30D, approximately 100 kilometres north of Ho Chi Minh City. He is reported to be in good health, and his family has no serious concerns about his current wellbeing. The information is that he is permitted regular visits.
Senator KEMP --That certainly is helpful. The family of Professor Doan Viet Hoat, another prisoner, fears that his life is in danger as he and other political prisoners are detained in the Ham Tan prison together with a large number of common law criminals. Apparently the criminals are being used by prison authorities to enforce discipline. Do you have any information on that case?
Mr Kupa --We do. Again during the recent parliamentary delegation to Vietnam a member of that delegation met relatives of Professor Doan Viet Hoat. He is currently being held in camp K2 of prison Z30D. His health is reported to be improving. He apparently suffers from a kidney condition. He is allowed regular visits from his wife who is able to hand over medicines to him.
Senator KEMP --I thank you for that information. There has been put before this committee a number of times the issue of the persecution of Buddhist and Christian priests. Apparently since the last meeting there has been a recent development. On 24 October in Saigon a ceremony to ordain 11 Catholic priests was due to take place with the Apostolic Administrator of the Archdiocese of Saigon presiding and in the presence apparently of a number of Vietnamese bishops. At the last minute communist authorities objected and the ceremony was cancelled. There is a feeling--and I would agree with it--that this is gross intervention in the internal affairs of the church. Vietnam now has three archdioceses, Hanoi, Hue and Saigon. Those of Hanoi and Hue have been vacant for years and no successors have been appointed, I understand. As for Saigon, the present archbishop is very old and ill and his nominated successor, Archbishop Nguyen Van Thuan, has been forbidden to return to Vietnam. He has been attacked by the communists in a savage manner saying that he has a debt of blood towards his people. Is the department aware of the cancellation of the ceremony to ordain these Catholic priests? If the department is not aware of it, could it make inquiries? If the information I have is correct, is the minister prepared to take this issue up with the communist authorities?
Senator Gareth Evans --I think we have seen at least some reports in general terms of that situation. But I am advised we have no more detailed information that we can add at this time. I will be going to Vietnam at the end of this month in order, among other things, hopefully, to bed down the arrangements for the more extended human rights oriented delegation that we are hoping to send now in the first part of next year. There are a number of human rights issues that I want to try to raise. Whether I will have the opportunity to raise them all in the relatively limited time that I will have, or whether some of them will have to be the subject of followup, including by the other delegation, remains to be seen.
I will check and see what further information I can get on this particular situation and make a judgment as to whether there is something I can usefully do in my own visit to follow that matter up. But I am certainly conscious of the continuing number of human rights problems as they affect both the Catholic and Buddhist churches. I certainly do want to take that issue up while I am there.
CHAIRMAN --If there are no further questions on program 1, I thank the officers who have assisted us. Those officers are discharged. We now move to program 6.