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Thursday, 6 March 2003
Page: 9378

Senator STOTT DESPOJA (11:40 AM) —I rise to speak on the Petroleum (Timor Sea Treaty) Bill 2003, the Petroleum (Timor Sea Treaty) (Consequential Amendments) Bill 2003 and the Passenger Movement Charge (Timor Sea Treaty) Amendment Bill 2003. I thank Senator O'Brien for making the Labor Party position clear. The Australian Democrats begin this debate by recording strongly our opposition to the process. As Senator O'Brien and others have outlined, there have been ample opportunities for the government to bring legislation on the Timor Sea Treaty to the parliament before now. I record the disappointment of all that it has taken place in this way. We recognise that the legislation before us will be passed, and the effect of the legislation will be to provide what are now desperately needed resources to the East Timorese people. We understand that fiscal and regulatory certainty is vital to ensure ongoing investment in and development of the petroleum rich area of the Timor Gap. However, we have very serious concerns regarding the fairness of the Timor Sea Treaty, particularly relating to the way that the Australian government has negotiated with the East Timorese in bringing the treaty to the point of ratification. I take this opportunity to put some of those concerns on the public record. The Australian Democrats have provided our concerns to the Joint Standing Committee on Treaties previously, and I am sorry and angry that the opportunity was not taken by the government to bring up some of those points during negotiation. As I said, there has been sufficient time.

The Democrats have never believed that this debate should occur in a context of pitting the interests of the East Timorese against those of Australians. On the contrary, we believe that it is in Australia's national interest for East Timor, our newest neighbour, to develop into a strong, prosperous and democratic nation with a proper regard for the rule of law. In its submission to the inquiry of the Joint Standing Committee on Treaties, the East Timor Institute for Reconstruction Monitoring and Analysis warned East Timor faces a serious risk of becoming a failed state:

... without economic security, and without the ability to rely on the rule of law both within our country and internationally.

A strong East Timor will help to defuse other tensions within our region rather than add to them. I mentioned Oxfam Community Aid Abroad earlier, an organisation I am sure all of us have contact with. I do, as Democrat spokesperson on foreign affairs and aid issues. Oxfam Community Aid Abroad have urged us to support this legislation. Their submission said:

For Australia, an economically unviable East Timor could threaten national security and that of the region. An unstable East Timor could lead to a flow of refugees to Australia with associated costs. The Australian and international community would expect the Australian government to bear much of the responsibility for increased humanitarian aid and assistance, and the provision of continued peacekeeping and security assistance to East Timor.

Of course, we should be contemplating increased aid. Unfortunately, that is not a debate we will be able to have today, because of lack of time.

The Democrats also believe that it is in Australia's national interests to support the structures and principles of the international legal system, a system that has been established to promote collective security, the maintenance of international peace, just resolution of disputes et cetera. In practical terms, this means submitting to the rule of law even when this is contrary to our more immediate and financial interests. For this reason, the Australian Democrats strongly oppose the government's decision to withdraw from the jurisdiction of the International Court of Justice with respect to the determination of seabed boundaries. I was going to move an amendment on that, but I see Senator Brown has covered the issue in his amendment relating to the International Court of Justice. The Democrats will be strongly supporting that amendment. It is an appalling move by the government to withdraw from the jurisdiction of that court, and it sets a poor example. While we are talking about the promotion and establishment of democratic institutions and the rule of law in East Timor, this sends a very poor message. As one submission said:

Australia and others in the international community consistently encourage East Timor's new government to implement democracy, the rule of law, transparency and safeguards against corruption as we develop our governmental structures and practices ... At the same time, Australia is not practising what you are preaching. When your country withdrew from legal processes for resolving maritime boundary disputes, you taught us the opposite message—that when the booty is large enough, the legal principles go out of the window.

We have got an opportunity to put those legal principles back in, and I hope that senators will consider that today.

Significantly, East Timor was given no prior notification of Australia's decision to withdraw from the jurisdiction of the court. That is extraordinary. The national interest analysis expressly stated that this was to prevent any action being commenced against Australia that could not be initiated after the declaration had been made. With respect to the distribution of resources under the treaty, the Democrats believe that a 90-10 split in favour of East Timor represents a fair allocation of the distribution of these resources within the Joint Petroleum Development Area, as defined by the treaty. In fact, I think former Senator Vicki Bourne, who was foreign affairs spokesperson for the Australian Democrats and a long advocate for independence in East Timor, advocated that on record in the very early days of the debate about the treaty.

But, as we know, in the context of this treaty the boundaries of the joint development area are contentious. It has been argued that they permit Australia to gain the benefit of resources which rightfully belong to the East Timorese. East Timor claims that the boundary between Australia and itself should be determined according to the median line between the two countries, whereas Australia of course argues that it should be determined according to the outer limit of the natural prolongation of the continental shelf at the Timor Trough, which is about 50 kilometres south of East Timor's coast. A series of legal opinions have given rise to conflicting interpretations of international law as it applies to the delimitation of seabed boundaries between East Timor and Australia. These divergent and often quite persuasive opinions illustrate the complexity of the legal principles governing the delimitation of seabed boundaries and the unique factual circumstances of this particular case. So we are aware of the complexities of these debates and the equally persuasive nature of some of the differing legal opinions. No-one is pretending that this is easy or not a grey area.

The Democrats believe that these seabed boundaries must be determined in accordance with the provisions of the United Nations Convention on the Law of the Sea and any applicable customary law. If the parties are unable to reach a fair and just agreement then they should submit to the jurisdiction of the International Court of Justice. By proceeding with the ratification of the treaty and finalising the unitisation agreement before the determination of seabed boundaries, Australia not only is accessing resources that potentially belong to East Timor but might actually prejudice East Timor's future claims to the disputed areas.

So what we are now left with is a situation in which Australia has no incentive and no legal obligation to negotiate with East Timor in an attempt to conclusively determine these seabed boundaries. This is an appalling way for Australia to treat our newest nation neighbour. I think it really highlights the hypocrisy of the government in this debate. As we know, it is necessary for this treaty to be ratified before 11 March to ensure that the Bayu-Undan development proceeds. We have heard debates previously about the urgency associated with this legislation because of that very tight time frame—again a tight time frame that the government could have alleviated.

The Timorese people, as we know, urgently require the resources that will flow from this development. We are hearing that from their government, the representatives of the President and community aid organisations. While I acknowledge the comments of Senator Abetz on record earlier about paternalism or patronising and colonialist attitudes, I am quite happy to disagree on occasions with other governments. I think the most recent example in my case would be the governments of the United States and the UK. Just because a government says something on behalf of its elected people—

Senator Abetz —Pity you don't disagree with Iraq!

Senator STOTT DESPOJA —I certainly disagree with Saddam Hussein.

Senator Abetz —As an afterthought!

Senator STOTT DESPOJA —I am not going to demean this debate, which is an incredibly important one for the East Timorese people, by getting sidetracked, but the principle of not always agreeing with what a government says is a legitimate one, even if it is a democratically elected government, as in the governments of the UK and the US. We are as senators entitled to disagree with what a government says. The difference in this case for me is that the people who have been democratically elected are the very same people with whom we have been involved in the debate about a free East Timor for many years and that I trust these people. When Xanana Gusmao, the President, or Jose Ramos Horta say that this is in their interest then I believe them. That is why I approach this debate with a heavy heart, wanting these resources to be available to the East Timorese who desperately need them but at the same time wanting my country to save some face by doing the right thing on behalf of not only the East Timorese national interest but our own. Hence the importance of reinserting in this debate the International Court of Justice. We should be dealing with the issue of seabed boundaries in a way that does not compromise future claims and ensures that allocation of resources is fair. So I want the government to do that and at the same time I recognise that the people who I have worked with and admired in this debate are asking us to pass these laws.

The Democrats have consulted directly with a number of groups, including the government, on this issue. I have of course met with Minister Downer and his department. I have also met with many other organisations, such as Oxfam Community Aid Abroad, and they have urged us to support the passage of these bills. So we cannot stand in their way, and we will not. However, because of the ongoing dispute regarding maritime boundaries and the extent to which the Greater Sunrise field lies within the joint development area, East Timor wanted ratification to proceed independently of the unitisation agreement. The unitisation agreement provides that 79.9 per cent of the Greater Sunrise oil and gas field lies within Australia's jurisdiction, while the remaining 20.1 per cent falls within the JPDA. As we know, the Timorese dispute this and, under the principles of international law, argue that most, if not all, of Greater Sunrise rightfully belongs to East Timor.

By insisting that the unitisation agreement be finalised prior to the ratification of the treaty, the government has compelled East Timor to agree to compromise its long-term interests in order to meet its short-term needs. Australia's insistence has resulted not only in an unsatisfactory outcome for the East Timorese people but also in a situation where the ratifying legislation was delayed, as we see, until the last moment. Here we are rushing this legislation through—and it is not even the eleventh hour anymore; it is almost the twelfth hour—without proper scrutiny. This is not the way to make good laws; we know that. This does not promote good governance and it does not set a good example to our nearest neighbours.

The Democrats also take this opportunity, therefore, to put on record our disappointment at the absence of a number of matters from the treaty and from these bills: for example, environmental standards to be observed in relation to petroleum activities within the joint development area and occupational health and safety standards to apply to those who work within that area. We certainly welcome the announcement this week of Australia's latest aid package to help reduce poverty within East Timor. There is no doubt that East Timor desperately requires such assistance, both financial assistance and other types of assistance, particularly in these formative years. It is hypocritical of the government on the one hand to provide aid to East Timor but on the other hand to potentially prevent East Timor from accessing resources which arguably belong to it and which would enable it to progress more rapidly towards financial independence. As Dr Alkatiri indicated last week, the best way to alleviate poverty in East Timor is to give it an equitable share of the revenues from the Timor Sea petroleum developments.

The Australian government has acted as a bully throughout these negotiations with East Timor and I am ashamed of the way that we have dealt with East Timor on this issue. Compare this to the way that, in recent times, this government—and I acknowledge this— played a leadership role, eventually, in stopping human rights abuses against the East Timorese people by helping them achieve independence. That was a proud moment for our nation. It was long overdue, and I will not go into the history, but it was a proud moment. The Australian government did play a leadership role in helping East Timor to the point of independence, but now we have turned around and are potentially strangling its access to much needed resources. We urge the government to proceed with negotiations with East Timor for the final delimitation of the seabed boundaries. We urge the government to do so in good faith and in accordance with the relevant principles of international law. We urge the government to resubmit to the jurisdiction of the International Court of Justice so that it can determine those disputes in relation to maritime boundaries. I think it is time for us to show leadership to our new neighbour, and we must act responsibly and fairly in our dealings with it.

I reiterate the concerns of the Australian Democrats over the way that this process has come about and the eleventh hour dealings before us today in relation to the legislation. There is a bit of legislation there; it is not a one-page bill, and nor would you expect it to be. Going through the legislation, as we have been doing overnight, there are many aspects which we would have liked to have spent more time on. We would have liked to ask the government about some of the issues and, as I said earlier in the debate, have vital amendments drafted to ensure that we submit to international law and try to get a better deal for our East Timorese neighbours. The Democrats will not stand in the way of the passage of this legislation—I have said that on the record—but I make it clear that we are not happy with the process and we are not happy with the final legislation. We understand the reasons for urgency, hence our willingness to allow this debate to occur. I think the numbers are such in the chamber today that this legislation will pass. I acknowledge the request of the East Timorese people made through their elected representatives: their Prime Minister and their President. For that reason, we will not be opposing this legislation before us today.

My concerns are outlined in a second reading amendment that has been circulated in my name on behalf of the Australian Democrats. I thank Senator O'Brien for outlining his opposition. Needless to say, I am a little disappointed—it would be nice to win something in this debate. Who knows, you may have a change of heart on some of the amendments before you and we may see a bill which is better not only for the East Timorese people but also for the Australian people, whom we are here to represent. That is what I would like to see. I move:

At the end of the motion, add “but the Senate:

(a) condemns the Government's handling of these bills and the manner in which it has conducted negotiations with East Timor regarding the Timor Sea Treaty, in particular:

(i) the very late introduction of the bills prior to the commercial deadline for ratification of the treaty, which has limited the ability of the Parliament to properly scrutinise the bills;

(ii) the Government's insistence on signing the International Unitisation Agreement relating to the Greater Sunrise oil and gas field prior to ratifying the treaty; and

(iii) the Government's withdrawal from the jurisdiction of the International Court of Justice to determine disputes regarding maritime boundaries; and

(b) notes, however, that East Timor stands to lose billions of dollars in revenue from the Bayu Undun development if the bills are not passed today and that it is the express wish of East Timor that they are passed”.