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Thursday, 25 November 1999
Page: 12680


Mr KERR (1:12 PM) —With one glaring exception the opposition will support this legislation. The glaring exception relates to those provisions of the bill which relate to cooperation between Australia and Indonesia in the enforcement of criminal law in the Timor Gap Zone of Cooperation provisions of part 4.

Before I address the generality of the bill, I might say that it is a matter of astounding insensitivity and bad timing, and a political issue of some embarrassment, that the government has brought on for debate today on the eve of the Prime Minister's visit to East Timor a bill which includes provisions which, in a sense, require us as a parliament to acknowledge and reaffirm Indonesia's sovereignty in the Timor Gap. This is an extraordinary situation given that Indonesia itself has formally renounced control of East Timor.

The fact that the government introduced this bill after the plebiscite in East Timor and after the East Timorese voted to form an independent nation is extraordinary enough in itself. It now defies belief that Minister Vanstone has had almost two months to realise the possible ramifications of this bill but it is here before us today without amendment. The opposition will not in any sense allow that to occur and at the appropriate time the opposition will move amendments which will delete in part 4, clauses 7 to 9, schedule 2, those references which operate with respect to this matter, and ensure that if the government does not have the wit or wisdom to avoid the sloppy and politically insensitive and plain dopey aspects of proceeding in this manner, at least we in opposition will do what we can to ensure that this parliament does not join with them.

It is unfortunate that I had to make those opening remarks with respect to legislation which, in its general terms, ought to be welcomed by this House. In the absence of those provisions to which I will return in detail in a minute, the bill would repeal the Crimes at Sea Act 1979 and replace it with legislation which will give legal force to a new crimes at sea scheme developed through a special select committee of solicitors-general and approved by the Standing Committee of Attorneys-General. The scheme has the support of the Australian Police Ministers Council. The Commonwealth and states have agreed to this cooperative scheme.

Under the new scheme the states and the Northern Territory will enact uniform crimes at sea acts. The scheme is designed to overcome overlapping of the application of state laws and confusion as to which various state laws apply. Under the arrangement, the criminal law of each state is to apply to the offshore area adjacent to the state or territory, firstly, for a distance of 12 nautical miles from the baseline for that state by force of the law of the state and, secondly, beyond 12 nautical miles, up to a distance of 200 nautical miles or the outer limit of the Continental Shelf, whichever is the greater distance, by force of law of the Commonwealth.

This cooperative arrangement and the intergovernmental agreement will much simplify the process of determining investigative procedures and jurisdictions to deal with offences and will allow that to occur much more effectively. In addition, the Commonwealth bill would apply the Jervis Bay Territory's criminal law to certain criminal acts committed outside the new scheme's coverage area. Responsibility for administering criminal justice in the area covered by the scheme will be divided between the Commonwealth and states under the scheme and subject to the intergovernmental agreement.

This has been a long time in the making. I believe the genesis for this emerged before the current government came into office and it has continued to work through what are inherently difficult issues which have in volved much give and take on behalf of the Commonwealth and the states and the Territory that is affected, the ACT being the only territory that does not have a maritime jurisdiction. I make no criticism at all of the long process of gestation. This is a complex issue which has eluded satisfactory solution for a very long time. It has required enormous amounts of technical expertise being applied to it by the various state and Commonwealth solicitors-general.

The fact that we have reached an occasion, as we have today, where we can bring before this parliament an agreed package of measures that will be reflected by common legislation in each of those states and territories, is a matter about which we should be very pleased. It is a measure which has been long in the making but should not be diminished by that fact, but unfortunately attached to a measure with which the opposition can only extend its genuine congratulations to all ministers and officials who have played a part in that constructive outcome. Apart from that, there are these provisions in relation to the Timor Gap.

The provisions in part 4 of the bill reflect Australia's obligations under the Timor Gap Zone of Cooperation Treaty which provides for cooperation between Australia and Indonesia in the enforcement of criminal law in area A of the zone of cooperation. If you go back to the explanatory memorandum, it says that the provisions here in all material respects replicate provisions that are currently in the Crimes at Sea Act 1979 and have been in operation since 1991.

So that statement in the explanatory memorandum makes plain that these provisions which we are bringing forward today for debate are as good as identical to the provisions currently in place. Whilst the legislation has been a long time in the making, it begs the question why, given the political state of play of Indonesia, East Timor and the Timor Gap treaty, the Australian Government is bringing on this legislation at the most inappropriate time. The Timor Gap treaty includes, as an express element of its terms, an Australian acknowledgment of the sovereignty of Indonesia with respect to East Timor and then reflects that in a series of measures which go to the maritime jurisdictions between the two countries.

Australia does have a strong interest in working to ensure a business-as-usual approach to activity in the Timor Gap and a smooth process of transition which will allow East Timor to benefit from the petroleum resources of the zone of cooperation. But we cannot understand why, after Indonesia's renunciation of control over East Timor, it is appropriate to proceed with legislation which is based on recognition of Indonesia's sovereignty over East Timor and a continuing Indonesian role in the Timor Gap. If passed by this parliament, after the Indonesian People's Consultative Assembly formally ends Indonesia's control over East Timor, these provisions will be cited as Australian acknowledgment, indeed acceptance, of a continuing Indonesian claim to parts of the Timor Gap.

The Labor Party has called for the Howard Government to formally end Australia's de jure recognition of Indonesia's sovereignty over East Timor. With that background, Labor will oppose the provisions of part 4 and will urge the government not to proceed with respect to part 4 on these matters until the United Nations transitional authority—and ideally an independent East Timor—has replaced Indonesia in the operation of the Timor Gap treaty.

I might say—and more than rhetorically—whilst I have criticised in a media release yesterday the Minister for Justice and Customs, Senator Vanstone, for batting on with this legislation after the opposition drew these consequences to her office's attention, what I find extraordinary is: where is Minister Downer? Where is the Department of Foreign Affairs and Trade? What does it say about the position the Australian government is advocating with respect to the future of East Timor that these measures do come before this parliament at this time?

There is no explanation I can see for the complete failure—and that is all I can say it is—the complete failure of the government to address an issue of immense political sensitivity by publicly stating that these amendments, whilst they may have been drafted in different situations and may have inadvertently still been allowed to be part of the legislation put before this parliament a month after the ballot in East Timor, are still before us in this House in that form now. There is no plausible explanation. It is disgraceful and the opposition will rigorously oppose those measures.

Might I say, by way of background, this cannot be mere inadvertence. My office asked the minister to reconsider the timing of debate on this bill. In good faith and in Australia's best interests we pointed out to the minister that it is not appropriate to be passing legislation which could be cited as an Australian acknowledgment of continuing Indonesian claims to parts of the Timor Gap. I can say that this can only be described as a first rate stuff-up. It is bound to embarrass the Prime Minister on the eve of his departure. And if the Prime Minister is not embarrassed, he has some serious questions to answer, because he is operating in an environment where, on the one hand, we have Australian troops in East Timor securing the peace in that territory after a plebiscite and after the United Nations has taken steps with respect to its eventual transition to independence; yet, on the other hand, we have before this parliament legislation which entrenches and reinforces and gives our parliament's assent to an assertion of Indonesian sovereignty in respect of the territorial waters of what would be in the future an independent East Timor.

I cannot understand that. It may have just been sloppy and politically insensitive that this matter was included as it was as part of a longstanding process of working through these measures, the commencement of which began well before the current plebiscite and before international conditions changed. That may have just been sloppy and politically insensitive. But it is a diplomatic catastrophe now, and it is a disgrace to this parliament if we are pressed to accept these measures, and if this House rejects the opposition amendments that will see them deleted from the face of this legislation.

I intend to be brief. I think I have spoken enough to indicate the measure of our anger over these matters and the inconsistency that the government has shown in relation to the management of this issue. It is not an issue that we feel happy to be raising in this House at this time. There are other mechanisms that could have been used to address it and to take it off the table. The bill could have been reintroduced in a form which gave none of the offence that I am mentioning now. Yet the government has seen fit to press on. How the Prime Minister can come into this House and how the Minister for Foreign Affairs can say that Australia is acting in a way that is otherwise than grossly inconsistent with every public utterance that they have made in relation to the Australian engagement whilst they are proceeding with this legislation is completely beyond my imagination. So I am not certain about the process here, whether I move the amendment that the opposition is foreshadowing at this stage, or whether we do so in consideration stage. I think it may be in consideration stage.


MADAM DEPUTY SPEAKER (Mrs DeAnne Kelly) —Yes.


Mr KERR —Before we hear that they do not intend to proceed with these measures—as a result of what I am saying now, and after the reflection that they should have had before—I want an indication that they are chastened. I am certain now that messages must be going back and forth, because we are not going to drop off this. Before we hear that, let us make it plain that the reason this will not be proceeding through this parliament—if it does not proceed through this parliament—is that the opposition has acted with integrity and is moving amendments which will delete these provisions in part 4.

The timing of this legislation meant that the shadow ministry had no choice but to oppose that significant aspect of this bill, which, based on Australia's obligations under the Timor Gap Zone of Cooperation Treaty, provided for those arrangements between Indonesia and Australia in a like manner as would occur between the Commonwealth and the various states. We communicated that to the government. We indicated that we thought it was inappropriate for all the reasons that I have set out for this matter to proceed.

As I said, I have been very critical of Minister Vanstone for neither accepting that advice in the spirit in which it was given, nor being able to understand the political and diplomatic sensitivities involved. However, what may be at least marginally comprehensible from the point of view of a Minister for Justice and Customs who wants to bat on with her agenda, is incomprehensible in relation to Minister Downer and the Department of Foreign Affairs and Trade. This I find absolutely beyond all plausible explanation.

I conclude by saying it is a shame that in speaking to this legislation I have been compelled to perhaps diminish what should have been a speech which really did reflect the credit that should go to the work of ministers and government advisers in working through a quite difficult and complex scheme between state and territory governments. It is a shame that we are unable to simply say we acknowledge and honour the work that you have done as part of an ongoing process that began before—I think it has been about a decade—certainly this government came to office, but which we were not able to complete. This government has been able to do that, and they should have been given proper credit for it. We would have done so, and nothing that I say should take away one jot from what I would hope to stand on the record as remarks of approval for the work that was done by the solicitors-general, attorneys-general and other ministers who have had carriage of this matter and their advisers. But neither should anything I say in that regard diminish in any way what I am saying about the absolute foolishness of incorporating within this legislation provisions which mean that, after the events that have occurred over the past three months in East Timor, the Australian parliament continues to insist on Indonesian sovereignty with respect to the Timor Gap.

Why that is being proceeded with eludes me comprehensively. When our amendments are debated, I expect the government to acknowledge the force of the arguments that have been put and to say that they will not proceed with part 4. To do otherwise would simply show gross hypocrisy. Of course, if the government insists, that is a matter for the Prime Minister and the Minister for Foreign Affairs more than Minister Vanstone. They will have to answer questions from the Australian people on what they mean by having engagements of the kind that the Australian public is so strongly supportive of in East Timor, and yet be passing through this parliament at this time legislation which treats as nothing the changes that have occurred and still preserves an Australian assertion of Indonesia sovereignty with respect to the Timor Gap—the waters adjacent to and immediately part of the territorial waters of what is now a territory under interim UN administration and which, with the goodwill of everybody in this House and the goodwill of the Indonesians and the people of East Timor, will become an independent country, hopefully on friendly terms with both Australia and Indonesia.

I know there are others who wish to speak in relation to this matter. I cannot believe that this matter will pass this parliament in this form, even if the government overrides the objections that I have placed on the record now in this House. I cannot believe the Senate would connive such an outcome. I urge the government to accept that this would be a most unwise component of this legislation and to join with the opposition and not oppose the amendments that will be moved when debate in committee occurs.