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Joint Standing Committee on Treaties
05/09/2022
Agreement between Australia and Japan concerning the facilitation of reciprocal access and cooperation between the Australian Defence Force and the self-defense forces of Japan

COAKLEY, Ms Victoria, Director, Multilateral Human Rights Section, Department of Foreign Affairs and Trade

JEFFREY, Mr Hugh, Acting Deputy Secretary, Strategic Policy and Industry Group, Department of Defence

KEANE, Air Commodore Patrick, Director General, Australian Defence Force Military Legal Service, Department of Defence

MITCHELL, Dr Kate, Director, International Law Advising, Human Rights and Treaties Section, Department of Foreign Affairs and Trade

Com mittee met at 11 :0 7

CHAIR ( Mr Josh Wilson ): I declare open this public hearing of the Joint Standing Committee on Treaties. These are public proceedings, although the committee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated as a contempt of parliament. It is also a contempt to give false or misleading evidence to a committee.

In accordance with the committee's resolution of 4 August 2022, this hearing will be recorded and broadcast on the parliament's website and the transcripts of proceedings will be published on the parliament's website. Those present here today are advised that filming and recording are permitted during the hearing. I also remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee.

Transcripts of today's proceedings may not be available in time to meet the deadline for questions on notice. Therefore, witnesses, could you please keep track of any questions on notice so that you're able to respond in the time required to ensure the committee can meet its reporting deadlines?

The committee will now take evidence on the Agreement between Australia and Japan concerning the Facilitation of Reciprocal Access and Cooperation between the Australian Defence Force and the Self-Defense Forces of Japan. We have witnesses here from the Department of Defence and the Department of Foreign Affairs and Trade. I welcome you and your evidence today. Do any witnesses have any comments to make on the capacity in which they appear today?

Ms Coakley : I head the Multilateral Human Rights Section in DFAT that's responsible for the policy on death penalty.

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Mr Jeffrey : Good morning, Chair, and committee members. Thank you for taking the time to receive us today. We very much welcome the opportunity to introduce a reciprocal access agreement. This treaty represents the work of several years, and at the outset I'd like to acknowledge the Australian and Japanese officials who have put a lot of hard work into this treaty, including, in particular, my RAA counterparts: Ando Toshihide, Kobayashi Kenichi, Sona Kenko and, most recently, Ishizuki Hideo—friends and colleagues all.

We're confident that the treaty makes a contribution to Australia's security. In my opening statement I would just like to quickly outline the strategic rationale behind the treaty; how it will work in practice; some brief observations about some of the challenges and sensitivities we had to deal with; and prospects for next steps for cooperation with Japan under the treaty.

The RAA was conceived in 2014 by prime ministers Abe and Abbott as a response to a much tougher strategic environment. As liberal democracies and US allies, both believed that a stronger strategic relationship was necessary, and, in particular, that closer defence and security engagement would give both countries greater strategic weight to manage and navigate what the 2020 Defence strategic update called the most significant change in our strategic circumstances since World War II. These circumstances have driven a remarkable transformation in the bilateral relationship with Japan, as you may know, from a relationship that was underpinned primarily by trade and investment since the end of the Second World War to one where, increasingly, Australia and Japan see each other as linchpins in their respective regional strategies. As a result, we are seeing tremendous growth in the breadth and ambition of the bilateral defence relationship. But, to date, we've lacked the necessary mechanisms to facilitate military cooperation consistent with the level of our strategic alignment.

The conclusion of the RAA goes a long way to addressing that. Practically, it will streamline the arrangements for our militaries to do more together and to be more agile, responsive and effective. It will also improve our ability to work together with other partners, including, obviously, trilaterally with the United States—for us both, our most important ally—and in other multilateral formations where we have similar agreements. And we believe that the treaty will help contribute to the normalisation of Japan's defence posture, allowing a Japanese self-defence force to take a more active role, together with its partners, in shaping our region's strategic trajectory so that it continues to support our collective security and prosperity.

The time it took to reach agreement—negotiations lasted for 7½ years—underlines that it was a complex and challenging negotiation. This is the first time since the end of the Second World War that Japan has negotiated a military access agreement with another country. Japan has one other agreement with the United States, from 1960, but it's unilateral and it contains components which are controversial and unpopular in Japan, especially around issues like criminal jurisdiction. This meant not only that negotiators were having to work through a number of legal differences in our respective systems that required time and care to find a mutual way forward but also that Japan was breaking new ground on its defence and security policy that would both be subject to intense political scrutiny at home and serve as a template for future such agreements that Japan may make with other countries. So, overall, it was a big deal for Japan and for Australia, and the conclusion of the negotiations represents a milestone achievement for both countries.

What does the agreement aim to do? Briefly, it's a framework to govern the status of our forces while conducting cooperative activities in each other's territories. The agreement covers provisions typically covered in a visiting forces agreement, which, you may have heard, is sometimes referred to as a SOFA: a status of forces agreement. It's not tailored to any specific activity; rather, it's framed broadly to encompass any cooperative defence activities that are agreed by the parties. It can, therefore, be used to cover a wide range of existing and new cooperation across the spectrum.

At its heart, the provisions of the treaty enable the receiving state to simplify or expedite processes or allow favourable and equal treatment for the other party's personnel. In return, the treaty requires the sending state to ensure that its forces maintain good order, abide by the receiving state's laws, and take due care for public safety and for the protection of the environment and cultural heritage of the receiving state. The RAA—and this is important—is based on a spirit of cooperation, and this underpins the growing ambition that Australia and Japan share around defence and security. You will have noticed the treaty structure consists of a number of different elements, which together create commitments that the parties have agreed to. That structure involves the treaty text itself, the annex, the agreed minutes and the record of discussion.

It's not unusual for a treaty such as this to have different instruments working together, and it's particularly common under Japan's treaty-making process. The structure also made it possible for Australia and Japan to negotiate commitments which accommodate each side's existing legal obligations, even where they differ. To point to a key example, the RAA was negotiated with a view to ensuring consistency with Australia's international human rights obligations, including in relation to the death penalty. Because Australia and Japan's international human rights obligations and policies differ in relation to the death penalty, this was obviously a focus for the negotiators. As Australian negotiators, we took great care to ensure an outcome that was in keeping with our international obligations. We invested the time necessary to convey this view to Japan, which clearly understood our position. We know that this element of the RAA has been of some interest to the authors of the public submissions, and we are, of course, prepared to answer any questions that you have on that front.

A brief word about implementing arrangements: these are relatively standard features of treaties such as these, and they serve to assist with operationalising particular aspects of the treaty. The work to prepare the implementation arrangements is ongoing. They are legally non-binding and, according to normal practice, they are confidential between the parties. They will be finalised prior to entry into force. There are a number of other areas that the parties have prioritised for implementing arrangements, where there are technical and procedural complexities or where there is benefit in clarifying how the treaty commitments will be applied in practice. Implementing arrangements are useful in providing more fidelity for Japan as it drafts enabling legislation for its first SOFA, and also for Australia in determining whether or not legislative or regulatory changes are required.

One point to illustrate: as noted in the national interest analysis, the implementing arrangement on military disciplinary powers sets out, in more detail, how Japan and Australia will cooperate closely on this subject to the of exercise powers, including arrest, and search and seizure. It sets out that, in some cases, the sending state will need to seek the assistance of the receiving state's authorities to undertake actions that the sending state would normally exercise autonomously. This is just one illustration of the principle that underpins the whole treaty, which is that Australian and Japanese authorities will work in close coordination and cooperation, that being central to our deepening defence relationship. Of course, I'm happy to go into more detail about the structure and function of the treaty, if that's of interest to the committee.

As I mentioned at the outset, this relationship has undergone huge growth over the last decade. It is no mistake that the first bilateral visit overseas for Australia's Deputy Prime Minister and Minister for Defence was to Japan. Our cooperation on strategic capabilities, space and cyber, defence industry, and science and technology is progressing, in all cases, in line with the broader special strategic partnership that we have with Japan. And we have made great strides in practical military cooperation, which is going to be very important in the context of the issues we're discussing today. The RAA will unlock further gains—prospects for enhanced presence in each other's territories, opportunities for enhancing interoperability, and continuing to develop our cooperation in the region bilaterally and multilaterally in support of our partners. I thank you for your attention and we look forward to answering your questions.

CHAIR: Thank you. There are no further statements; you are happy to move to discussion? Good. I will begin and the deputy chair will follow me, and then other members of the committee. Mr Jeffrey, and perhaps Air Commodore, if you'd like, I'm just interested in whether you could provide some more detail on the kinds of cooperative in-country activities that this status of forces agreement will facilitate, particularly in ways that are separate from the kinds of cooperative activities that Australia and Japan currently undertake or have undertaken in recent years.

Mr Jeffrey : The agreement covers provisions that are typical of a visiting forces agreement, and it includes provisions that address a number of areas that will enable us to do more together: diplomatic clearance of vessels and aircraft, immigration requirements of civilian and military personnel, exemptions from certain taxes and publicly administered fees, processes for the importation and exportation of goods and supplies, facilitating access to facilities and related services, mutual recognition of licences and certain professional qualifications, carriage of weapons, mortuary affairs et cetera. The annex sets out binding understandings in relation to disciplinary matters in criminal jurisdiction, including obligations to assist each other in relation to arrest and transfer of personnel and to assist each other in investigations and evidence production.

All of that means that the ability of our forces to operate together in each other's territories is now much more streamlined, because it's subject to a set of agreements governed under the treaty. Previously what we would have to do is do this in an ad hoc way to ensure that each activity had the necessary clearances and authorities and processes in place. So this treaty will really allow us to scale up our military activities more quickly, and, as I noted in the introduction, because it's not specific about cooperative activities, we can use it to grow from what we're doing now into new areas, including, for example, trilaterally with the United States.

Air Cdre Keane : These kinds of agreements assist in removing the level of ad hoc administration that's required before any activity, because the provisions are all mutually agreed in advance. It's not tailored to specific activities; it's broadly framed to encompass cooperative activities agreed between the parties as we identify things that we would like do together. It will mean that some of the activities that we conduct in Japan now under ad hoc arrangements, like Southern Jackaroo—it just makes things smoother for both sides.

CHAIR: Is it fair to say that status of forces agreements contemplate something that's sort of temporally extended? Obviously at the moment we participate in joint exercises and those kinds of things. If we have regard to the status of forces agreement that Japan has with United States, that has facilitated US personnel being semipermanently based in Japan. Presumably one of the reasons why you conclude an agreement like this is that you imagine that the presence in country of either Japan in Australia or Australian forces in Japan would be more significant and extended rather than through exercises the likes of which have been part of our relations for some time.

Air Cdre Keane : This is a status-of-forces-like agreement in terms of what it does. It's not a basing agreement or a security agreement. So this is an agreement that facilitates activities between the parties. It certainly will allow both parties to conduct a greater range of cooperative activities within each other's territory more easily, but things like extended periods of personnel being based in a country is not something that's covered by the terms of this agreement specifically.

CHAIR: Just for the committee's context, I understand the United Kingdom is in the process of settling a similar agreement with Japan. So Japan, having had the agreement with the United States for a significant period of time, is perhaps on the brink of settling two new arrangements, and it will be our fifth status-of-forces arrangement, I believe—fourth or fifth.

Air Cdre Keane : Eighth.

CHAIR: Eighth?

Air Cdre Keane : Yes.

CHAIR: I think we've got four in our papers, but that's good advice. Just in terms of the context of this agreement, Japan has the UK agreement under consideration or in process. Does Japan have other agreements like that in process to your knowledge, and do we have other agreements like this in process?

Mr Jeffrey : As I mentioned at the outset, Japan sees this as a template for expanding its military cooperation with other like-minded countries. Yes, it is a matter of public record that they are in negotiations now with the UK on a similar agreement, and it is my understanding that the template for that agreement is the one that Australia and Japan have negotiated. That makes sense. Obviously, this question would need to be directed to Japanese authorities, but my understanding is that they are seeking to expand that beyond the UK to other like-minded countries.

As I said, this is a response by Japan and by Australia to a more contested strategic environment, and one of the ways we are doing that is moving beyond a hub-and-spokes model with the United States. A typical model with US allies would be that you operate with another US ally through Washington. Rather, what we're doing is building a networked model where we're able to operate independently or autonomously together. We have the authorities to do that together without the United States necessarily being involved, and that is an important strategic response.

In terms of the SOFAs that we currently have, we have visiting-force agreements with France, Malaysia, New Zealand, Papua New Guinea, the Philippines, Singapore and the United States. They are all different and they all encompass different things, but we engage in this type of treaty negotiation to encompass defence activities where it's in our interests to do so.

CHA IR: Thank you. I have a technical question about the nature of this agreement. There are four different instruments: the treaty, the annex, the minutes and the record of discussion. Then there are the implementing arrangements that you referred to. The implementing arrangements are of less than treaty status. Certainly, in the national interest analysis, they cover some arrangements that go to some critical areas like the areas covered by article XXI. The implementing arrangements, as I understand it, will be settled and supervised by what's referred to as a joint committee—not this joint committee but a joint committee that's created through this agreement itself.

Mr Jeffrey : That's correct.

CHAIR: But it's difficult sometimes. It's not that uncommon, but in this case how those implementing arrangements pertain to some of the controversial aspects of the agreement is impossible for this committee to see, because they'll be settled subsequently. So I'm not sure. I think, when we get into the discussion around the death penalty, that might be something that you will be able to provide some advice on. But I'd just ask, because we've had one submitter, Professor Rothwell, question the status of the different parts of the agreement—particularly, I think, the minutes, as opposed to the record of discussion. The NIA describes the minutes as being legally binding, or being part of the documents that are legally binding. In Professor Rothwell's opinion, they can only really be regarded as a supplementary means of interpretation. Is that something you can offer a view on?

Mr Jeffrey : Thank you, Chair. I will pass to Pat in just a minute on the legal definitions with respect to the treaty structure. There are just a couple of points in the broad. There is no one way to write a SOFA. Each SOFA and its structure are sui generis, if you like. They reflect the particular negotiations that you had with the country. The structure that we have with this treaty is one that allowed Australia and Japan to achieve the ambition of the treaty while protecting sovereign interests and reconciling our different legal systems. While the agreement is complex, it's by no means unusual, and it really does reflect that the negotiations—as I mentioned at the outset—were long, challenging and complex.

As the negotiations progressed, various parts of the text were settled, and, as our mutual understanding deepened over the negotiating period, in some cases, it was more efficient to record our understanding in subsidiary instruments, rather than open up the treaty text. And that's how the treaty structure evolved. One important point of principle, too, with respect to your comments, Chair, on the implementing arrangements: it has been essential to our negotiations to ensure that what is agreed in the treaty text is not denatured by subsidiary documents. Rather, the subsidiary documents help explain what we mean and how we will implement what is committed to in the treaty. Pat, over to you.

Air Cdre Keane : The RAA treaty package of documents clearly represents the work of 7½ years of negotiations between parties with different legal systems and different levels of experience with this type of agreement. In addition to the main treaty text, there's an annex, which goes into further detail on the main text provisions, related to the exercise of criminal jurisdiction—that is, which country would take action if an offence were to be committed within the territory of the receiving state or host state. The treaty also includes, as a treaty level document, a set of agreed minutes, which was merely to clarify certain terminology that was used and terms that were used in the main treaty text, and also some processes in relation to civil claims.

Finally, the treaty package attaches, at a non-treaty document level, a record of discussion between the parties, which clarifies mutual understanding in cases where assistance in relation to criminal matters would not be permitted in accordance with parties' international legal obligations. What this covers, essentially, is that Australia would not be required to assist Japan in cases where the death penalty may be imposed. This was a useful mechanism for Australia to record a clear understanding of the parties through this record of discussion on this important point. So this format represented the best way to make progress and to meet the needs of both parties at various stages of negotiations as some text was settled, but some issues would have benefited from further clarification.

CHAIR: Okay. I'm just going to ask sort of an opening question on the death penalty, and then I'll move to the deputy chair. I think, for the committee's purpose, it's worth someone trying to give us the most simple explanation of exactly how Australian service people or related civilians may or may not find themselves subject to the death penalty. So Australia is an abolitionist state. We've ratified the second optional protocol. In 2018, we adopted a very forward-leaning strategy, which is not just about how we approach that issue domestically but about how we interact with the wider world. It's quite complex, but my understanding is that there's the part of the agreement that goes to the circumstances in which Australia would or wouldn't provide assistance in relation to people who are charged, but there's something that comes before that, which really has to do with the jurisdictional question. As I read it—and I could have this wrong; I think this is important if you can help us understand it—for the visiting force or civilian component, the first thing that the agreement sets out is that you've got offences that exist only under Australian law, and you've got offences that exist only under Japanese law. And, in those cases, either the receiving country, if it was Japan, or the sending country, if it was Australia, has primary jurisdiction. My understanding is that, where there are offences that are essentially common, the primary jurisdiction will be with Australia for visiting force personnel and civilian components if the offence is against one of our own people or against our own property, or if the offence occurs while a person is in the course of conducting their official duties. In any of those circumstances, even if an Australian citizen in Japan committed an offence, they would effectively be handed over to Australia and fall under Australia's criminal jurisdiction. But, to the extent that a person commits a crime in Japan that can't be regarded as in the course of their official duties, then they would fall under the criminal jurisdiction of Japan. In those circumstances—a member of the Australian Defence Force, or the civilian component, commits an offence in Japan which is a common offence, like murder, and it's not in the course of their official duties—then they would be subject to the criminal jurisdiction of Japan and they could find themselves subject to the death penalty. Is that a fair summary?

Mr Jeffrey : I will hand over to Commodore Keane to take you through the legal process around the provisions on the death penalty. I will just make a couple of overall statements. As you have noted, a great focus of the negotiations was to ensure that the two countries' differing positions on the death penalty were managed in such a way that each country's legal obligations, domestic and international, were respected and that we could conduct cooperative activities accordingly. The principle around the death penalty focus is clearly on the point of cooperation, as I've stressed throughout this hearing today. Were an incident to occur, obviously we would need to consult closely with Japan. The principle under which we have managed the issue of the differences over the death penalty is that, in instances where we are concerned that there may be a possibility of the death penalty being applied, we are not obliged to assist in that legal proceeding or prosecution, and that nonassistance would not be regarded as obstruction under the treaty.

I will just make a point on Japan's judicial system with respect to the death penalty. It's rarely applied. It's not applied for crimes of accidental death. It's not applied, for example, where there is a car accident that you have caused, with multiple fatalities, but not intentionally. It is exceedingly rarely applied even for intentional crimes that don't involve particularly heinous attacks on people. When you do see it applied, it is applied in particularly extreme circumstances of crimes. The possibility that Australian Defence Force personnel would be involved in such criminal activity, we think, is vanishingly small. But you are right to acknowledge that, were a person to commit such a terrible crime while they are not on official duties, the possibility is encompassed that they could be subject to the death penalty. That's not exceptional. We have cooperative agreements with other countries where they also would be exposed to the full scope of the domestic legal system, including the United States. So it's not something that is unique to Japan, but it's something that we have to manage as we deploy our forces globally. I'll just leave it at that and ask Commodore Keane to speak to your characterisation directly.

Air Cdre Keane : Chair, you have summed up the jurisdictional division between Australia and Japan very well. That kind of division of jurisdiction is a pretty common feature of agreements of this kind. It's one of the issues that are commonly dealt with in any kind of visiting forces agreement for one country in the presence of the other. Exclusive jurisdiction over the visiting force goes to the visiting force in relation to disciplinary matters and matters that are within the criminal laws of the visiting state but not the host, and vice versa for the host state, where it's not a matter within the criminal laws of the visiting state. Where jurisdiction is concurrent, normally some arrangement is made to work out who has primary jurisdiction, and the formulation used in this agreement is a fairly common one, which is that, where those offences of the visiting force relate to the personnel and property of the visiting force or occur in the course of official duties, then primary jurisdiction remains with the visiting force. And, as Hugh has outlined, for circumstances where the host country had primary jurisdiction, then they would be subject to its jurisdiction and to its laws.

CHAIR: I wouldn't mind hearing from the DFAT people their view about the extent to which the agreement [inaudible]. I understand all that's been said. If it had been possible to have a form of agreement which simply made it clear that under no circumstances would Australian citizens be subject to the death penalty, that would be black and white, wouldn't it? And this is not black and white.

This is an agreement that does have open the possibility of Australian citizens being subject to the death penalty, and I hear, Mr Jeffrey, what you say about it perhaps being vanishingly small. I was in this committee not that long ago when we were talking about the provision of obligated nuclear material to the Ukraine. There was a conversation about the possibility of Russia invading Ukraine and a nuclear facility falling into the hands of Russian forces and, therefore, our uranium falling into the hands of Russian forces. I remember people in the same room not perhaps using the term 'vanishingly small', but the suggestion was that that was very unlikely. Yet, here we are.

It's salient to note that Japan does have a quite different criminal justice system to what we have here in Australia. Some of the material we've been provided with suggests that the prosecution rate runs at about 99 per cent or 98 per cent or something like that. One of the reasons the death penalty is so abhorrent is that there are no comebacks from the death penalty. History shows that systems like those in the United States and other countries get it wrong. That's why it's so serious. That's why we have our position. This is a relatively recent strategy. In 2018 we adopted that overarching strategy through DFAT. I'm interested in the extent to which that and this agreement are consonant.

Ms Coakley : Thank you, Chair, for highlighting that this is a very tricky space in which, obviously, to negotiate. We have our overarching strategy. We do believe that the procedural safeguards that have been put in place in this reciprocal access agreement are consistent with the strategy. The strategy, as you refer to it, doesn't actually consider government-to-government assistance or police cooperation in the death penalty context. Those are covered by other acts, such as the Extradition Act, mutual assistance in criminal matters and, obviously, in police-to-police guidelines and assistance. So the negotiation, as my colleagues highlighted, was obviously an issue that was one of the foremost sticky issues between the two countries. What they have is this package that is seen as a whole. The treaty, the annex and the record of discussion is a whole; it's not separate. It is an understanding of how things would happen in the event that that eventuated. Hopefully, it wouldn't happen, given the assurances and the high standard of ADF personnel. So we do think that the procedural safeguards are adequate for the RAA at the moment. Obviously, if an Australian did end up in a situation, the Australian government wouldn't shy away from making all sorts of representations to try and assure extradition or something else, but I can't speak to that any further. And I just note that, in Japan, it really is the most heinous crimes that are subject to the death penalty. It's not drug trafficking; it's murder.

CHAIR: They've hanged nearly a hundred people since 2000, and they presently have a hundred people on death row. I'm not sure if any of them are foreign nationals. Of course, I don't think there's ever been a jurisdiction that's applied the death penalty for anything other than very serious crimes, but they get applied wrongly. In any case, I'll let the deputy chair ask some questions and then other committee members.

Mr THOMPSON: Seven years is a long time. What was the biggest touch point? Was it the death penalty?

Mr Jeffrey : There were a number of issues. The death penalty and how to ensure that the legal obligations of both sides were respected was a major one. Chair, you mentioned earlier about—and we noted with interest—one of the submissions: why could we not secure a clear exemption or a clear statement? Deputy chair, you can take from the length of the negotiations the fact that we were exhaustive in relation to discussing options that would allow us to address this death penalty issue. The arrangement that we arrived at was, in my judgement and in the judgement of our colleagues, the only way that we could secure this agreement. In my view—and I think this was a consensus view—we would not have arrived at this moment were we adamant that we had to have some form of exemption or some kind of statement from Japan that the death penalty would not apply. As you can appreciate, history was a very important silent partner in this negotiation, and the idea that Japan would voluntarily surrender aspects of its sovereign system, including criminal jurisdiction, was just really a non-starter for Japan.

CHAIR: For context on that point, Mr Jeffrey, and it's probably salient for the committee to understand, one of the concerns for Japan is that the agreement they do have with the United States operates in exactly that way, and that's created a lot of domestic political issues. In the agreement between Japan and the United States, any US citizen, either defence or related civilian personnel, if they commit a crime in Japan, they are handed over to the Americans, and that's something that Japan didn't want in this agreement.

Mr Jeffrey : That's correct. Japan has one other agreement of access, but it's unilateral. So it applies to the United States in Japan, not Japan in the United States. Obviously, the US military presence in Japan is incredibly important to Japan's security, to the region's security, but aspects of that agreement are extremely political in Japan, one of which is the status of US personnel that commit crimes off duty and where they are tried, and not being subject to the Japanese judicial system is extremely sensitive. So you can appreciate that this is one of the aspects that was so challenging for us to negotiate.

Mr THOMPSON: I can understand that. The death penalty is off the table. If a heinous crime has been committed, what's life in prison in Japan?

Mr Jeffrey : Do you mean in terms of the sentence?

Mr THOMPSON: Yes. If a bad crime has been committed, punishable by death under their law, and they've agreed to not do that, what's life?

Mr Jeffrey : I might need to take that on notice, unless anyone else knows that a typical life sentence is. I think it varies. To give you an informed answer, I'd need to take that on notice.

Mr THOMPSON: If there's a dispute between the sending nation and receiving nation, what mechanisms do you have to iron that out and ensure best practices are followed?

Mr Jeffrey : I'll pass that over to Air Commodore Keane to talk through the legal mechanism as agreed under the treaty.

Air Cdre Keane : The mechanism is established within the treaty terms through the joint committee, which sets out those implementing arrangements we discussed earlier but is also the framework through which we would conduct consultation and cooperation in relation to dealing with particular issues or incidents. That is the first place we would go in relation to an incident of that kind.

Mr THOMPSON: You said before that you're not obliged to assist. What do you mean, you're not obliged to assist?

Air Cdre Keane : It's probably best to lay out the treaty framework a little bit to help you understand that. In general terms, the treaty requires both parties to assist one another when it comes to the exercise of their respective jurisdictions that have been set out in the treaty. However, there are some exceptions to that obligation of assistance. Importantly for Australia, the key exception is where such assistance would not be in compliance with our international legal obligations under the International Covenant on Civil and Political Rights and the Second Optional Protocol in relation to the abolition of the death penalty. So Australia would not be required to assist Japan with an investigation it was conducting into a matter where there was a real risk that an Australian citizen might be the subject of the death penalty.

CHAIR: Obviously, that assistance is most relevant if, in effect, an Australian citizen is more or less in the custody of Australia. The bottom line is, if an Australian commits a crime and they are taken into custody by the law enforcement of another country and then subjected to those proceedings, the kinds of assistance that we would or wouldn't provide would be relatively limited and relatively immaterial to that person's circumstances at that point.

Air Cdre Keane : One of the forms of assistance that Australia would not be able to provide in any case in which there was a real risk of the death penalty being applied would be investigative matters in relation to the production or handing over of evidence or other materials to assist the prosecution case in Japan. That would not be permitted by this treaty.

Senator VAN: To clarify 'information', does that also mean the handing over of a person?

Air Cdre Keane : If you're within the territory of Japan then it's not really correct to speak of handing over a person because you're in Japan's territory. What Japanese police choose to do will be a matter for the authorities of Japan. If the person is, for example, in Australia, then it's not a matter for this treaty. It becomes a matter for our extradition arrangements and mutual legal assistance treaty. This is not an extradition agreement.

Mr THOMPSON: On the legal side, say, for example, an Australian Defence Force member has been arrested. Does the ADF or the civilian equivalent provide legal counsel or the wraparound service to that member?

Air Cdre Keane : Under existing determinations, persons who have been charged with offences that occur in the course of duty—and this is whether it occurs in Australia or around the world—are able to seek legal assistance at Commonwealth expense, and there are delegates who are able to make decisions in relation to the allocation of funds for such matters. There are different decisions to be made if offences are committed by an official outside the course of duty—that is, committed in their personal capacity. There is always the capacity to make an application for legal assistance at Commonwealth expense, which can be dealt with in a discretionary fashion by relevant delegates.

Senator O'NEILL: This is my first hearing on this committee, so I'm trying to get across the cultural practices of how we transact. Correct me if I'm wrong: at this point in time we've got a 7½-year negotiation that we're trying to land right now. Mr Jeffrey, were you involved for the entire process?

Mr Jeffrey : Thankfully not. That would be too long! I've been involved for the last five years. When I was in my previous job in the Department of the Prime Minister and Cabinet, during the Turnbull government, I was responsible for working with Defence and I remember calling my predecessor and saying, 'Why have they not produced a treaty already?' I didn't know that I would then be shifted into this job and be responsible for negotiating it. It was in the last four years that I was the chief negotiator. We reached in-principle agreement on the negotiation in October 2020 in Japan, during the pandemic, and then last year we had the signatures between the prime ministers.

Senator O'NEILL: That's really helpful for me. In terms of these negotiations, I understand that, with this being the first one, it can be very difficult to get a template that is going to be culturally appropriate. My first question is about the multiplicity of documents that make this up. How common is that in other treaty arrangements or is this unique?

Mr Jeffrey : It's not unique. It's very common in Japan's treaty-making process, and it's not unusual in other treaties that we have, where there are annexes implementing arrangements. If you look at, for example, the US force posture agreements that are at treaty level and that enable the presence of the US Marines in northern Australia, that's quite a complex treaty with subsidiary documents and implementing arrangements as well.

Senator O'NEILL: So you're aware of the critique of this treaty being a bit of a minefield for us by academics who suggest that that structure leads to the risk of ambiguity and obscure meanings?

Mr Jeffrey : Good point, Senator. I am aware of that point in the submissions. As I mentioned earlier, the structure of the treaty reflects the fact that this was a long drawn-out treaty and quite complex and challenging, and—

Senator O'NEILL: Could I go back in time? I'm not meaning to interrupt you; I have heard what you said there. But you said that in 2020 it got signed, and you've been involved with it for four years. At what point did it break out from being one treaty-making document into what I would call the 'pressure release valves' of other documents that are dealing with issues that there seems to be a cultural divide on? When did it take this shape and form?

Mr Jeffrey : Japan was pretty clear upfront that it always wanted subsidiary documents. It always wanted a record of discussion. It—

Senator O'NEILL: Because that's their cultural practice?

Mr Jeffrey : That's the way they proceed with treaties. Certainly, for us, as we proceeded with the negotiations, in many instances, it was easier and more efficient to agree to a subsidiary document which would set out in detail what we meant by this particular item in the treaty, rather than go back and try and renegotiate the text itself. It was a way in which we proceeded with the treaty over time. We understand the criticism that the number of documents, or the structure, could be confusing, but, taken as a whole, its purpose is to ensure that there's no ambiguity around what the treaty says and how it will be implemented.

Senator O'NEILL: I want to be persuaded by your argument. I hear your use of the words—and I'm assuming these are coming directly from the text—'we are not obliged to assist'. You stated: 'Non-assistance does not break the treaty.' But then, in further questioning, you've indicated a couple of different categories within what assistance might look like and when it might be provided, in the Air Commodore's response. I'm not convinced yet that we're very clear about exactly what would happen in the situation where a crime that would warrant the death penalty would be negotiated. Can you point to the part, in the range of documents, where I would find that confidence that our cultural practices, which don't necessarily mesh with the way in which the Japanese have wanted to structure this, would allow us to provide the kind of support and response that I think Australians will ask us to ensure is the case? Perhaps that involves something from Ms Coakley around its intersection with extradition documents. At this point in time, I'm not convinced that our personnel are safe. I want to point to my concern with regard to the practices that are in our submitters' documents—from the ANU LRSJ Research Hub, describing 'hostage justice':

Japanese police often use prolonged interrogation methods to coerce suspects into confessing to crimes, regardless of whether suspects are guilty.

I don't want to cast aspersions on the Japanese people or their legal system, but that does not match the expectations of Australian citizens. I hope I've given you the shape of where my concern lies. Can you give me a response to those concerns?

Mr Jeffrey : I'll ask Air Commodore Keane to point to the specific areas of the treaty that talk about the principle that, where we have serious concerns about the death penalty being applied, we are not obliged to assist, because to assist in those circumstances would be to violate our international legal obligations with respect to the death penalty.

Senator O'NEILL: I understand the bit about 'we're not going to assist'. But how do we assist our person when we're not assisting them? Where does the assistance for our citizen fit in the midst of 'we will not assist'?

Air Cdre Keane : I might defer to DFAT colleagues in a moment. But, really, Senator, is the nature of your question about the assistance provided by the Australian government to any Australian citizen who finds themselves in custody, where they are facing a death penalty matter? I'll defer to my DFAT colleagues in relation to those matters and processes.

Dr Mitchell : In terms of Australia's obligations around mutual criminal assistance and extradition and the like, they're actually led by the Attorney-General's Department, so they may be best placed to answer those specific questions. What I can say from a general perspective in terms of Australia's international law obligations relating to the death penalty is that, under our obligations under the second optional protocol, we as Australia have an obligation not to remove a person to another state, such as Japan, if they're in Australia, where there's a real risk that, as a necessary and foreseeable consequence of that removal, they would be subject to irreparable harm, and that would include, for us, the death penalty.

Senator O'NEILL: But that's if they're in Australia when the charge is brought. That's not if they're in the country when the charge is brought.

Dr Mitchell : Indeed. What I can also say more generally is that this treaty doesn't alter the scope of the international obligation that we have. Unfortunately, I'm not in a position to go into more information about those mutual criminal assistance and that government-to-government assistance. It may be something we have to take on notice for our colleagues at the Attorney General's Department to assist with. But those obligations exist independently and separately from this treaty, and the approach to negotiations, which our colleagues from Defence have outlined, was underpinned by that longstanding commitment from a policy perspective, but also those obligations being front of mind in the course of negotiations—those international and those domestic obligations.

Senator O'NEILL: If you could take on notice the intersectionality there, that would be good. Can we go back for a response to my first set of questions to you, Mr Jeffrey. Where in the document can you point me to?

Mr Jeffrey : The point around the death penalty is that it is covered in different parts of the treaty text, and they need to be read together. The three pieces really are central. It's the treaty text article XXI, the annex and the record of discussion.

Senator O'NEILL: Where in the annex?

Mr Jeffrey : I'll have to take on notice exactly where in the annex. But article XXI includes obligations on the parties to assist each other in the arrest and handing over of members of the visiting force, or the civilian component of the receiving state; and obligations on the parties to assist each other in carrying out investigations and collections. The annex sets out the binding understandings of the parties in relation to article XXV and article XXI(6) of the treaty. I think Pat has the annex areas that are relevant to the death penalty.

Air Cdre Keane : As described earlier, the purpose of the annex was to go into further detail about some of the matters relating to the application of criminal jurisdiction and in relation to assistance. The annex makes it clear that not assisting in cases where it would be contrary to Australia's international criminal obligations will not constitute obstruction for the purpose of—

Senator O'NEILL: Which is not breaking the treaty, as you said in your opening statement?

Air Cdre Keane : Which is not breaking the treaty if we were to do so.

Senator O'NEILL: Yes.

Air Cdre Keane : Then I will take you to the record of discussion.

Senator O'NEILL: That's the agreed minutes?

Air Cdre Keane : The record of discussion. That's the non-treaty-level document that is attached to the treaty package.

Senator O'NEILL: Okay. You're going to have to clarify that for me. I've got the reciprocal access agreement.

Air Cdre Keane : The main treaty text.

Senator O'NEILL: That's the main treaty text. You've got the annex, which we've discussed.

Air Cdre Keane : We have.

Senator O'NEILL: There are additional bits and pieces; I'll call it the pressure valve release. The next thing is agreed minutes.

Air Cdre Keane : The agreed minutes, yes.

Senator O'NEILL: And the record of discussion—is that something else?

Air Cdre Keane : The final element which is attached to the treaty package—and it's not a treaty-level document but a recording of the parties' mutual understanding in relation to the application of certain provisions—was the record of discussion on article XXI.

Senator O'NEILL: But it says that it's not legally binding and does not alter the scope of the parties' domestic laws and regulations and the international obligations. So it's not binding.

Air Cdre Keane : Yes, it's a non-treaty-level—

Senator O'NEILL: So it is of lesser status?

Air Cdre Keane : It's a non-treaty-level document which outlines the parties' understandings in relation to the application of the provisions in the agreement.

Senator O'NEILL: On notice, if you could give me the whole package of every bit that deals with the relevant discussion we've been having about the death penalty, that would be helpful for me. I have one question that might have to be on notice, Chair. I'm not sure given the time.

CHAIR: Yes, if you don't mind, Senator O'Neill. Then I'll come to Mr Pike.

Senator O'NEILL: This is the last question that I want to ask. Firstly, I believe you said eight SOFAS, or status-of-forces agreements, have been made, and we thought we only had five. Are reciprocal status-of-forces agreements in place with PNG?

Air Cdre Keane : There are reciprocal agreements with France, Malaysia, New Zealand—

Senator O'NEILL: Singapore?

Air Cdre Keane : Papua New Guinea, the Philippines, Singapore and—

Senator O'NEILL: The USA?

Air Cdre Keane : The United States is one-way. It's Australia—

Senator O'NEILL: Alright.

CHAIR: Just on the Philippines, on the Defence website there's no status-of-forces agreement with the Philippines listed. We've got Malaysia, New Zealand, Papua New Guinea, Singapore and the US—five.

Senator O'NEILL: France.

Mr Jeffrey : It may be referred to as a defence cooperation agreement. I'll need to check the—

Air Cdre Keane : I can take that. It's the agreement between the government of Australia and the government of the Republic of the Philippines entered into at Canberra on 31 May 2007, which entered into force on 28 September 2012.

Senator O'NEILL: Okay. So this is a suite of slightly different names, but they all do the same thing. That updates our information. Of those countries, PNG, the USA, Singapore and Malaysia have the death penalty.

Air Cdre Keane : Of the countries with whom Australia has a treaty for the presence of its forces in the other host state, four have the death penalty. Those are Papua New Guinea, the Philippines, Malaysia and Singapore. In the four agreements with those countries, we managed to secure exemptions from the application of the death penalty for the visiting force in relation to Papua New Guinea and the Philippines but not in relation to Malaysia and Singapore.

CHAIR: The US?

Air Cdre Keane : The US is a one-way agreement for the presence of US forces in Australia.

CHAIR: Alright. I'll come to Mr Pike, but note the questions that Senator O'Neill has put on notice.

Senator O'NEILL: Yes. The question is: how did you negotiate that, and why can't that negotiation be achieved in this context? I think it would give greater comfort to the Australian people. Thanks.

Mr PIKE: The conversation has moved on a bit, but I have a question on the same theme, in relation to the non-obligation to assist. Can I just get clarity that that only relates to matters that would potentially result in the death penalty, so that, if an Australian ran into trouble for a lesser offence, there would still be an obligation to assist, in the same way that I'm sure the self-defence forces of Japan may assist local jurisdictions in dealing with some sort of prosecution there?

We've talked a lot about the options of what might occur with an Australia in Japan. The second part of the question is: conversely, is there any similar caveat around any aspects of Australian law where the Japanese have an obligation or a non-obligation to assist, or, if a Japanese self-defence force member ran into trouble in an Australian jurisdiction, is it the expectation that the Japanese military would fully cooperate with Australian jurisdictions?

Mr Jeffrey : Mr Pike, can you repeat your first question?

Mr PIKE: The non-obligation to assist relates only to matters where someone is going to be charged with something that might result in the death penalty?

Mr Jeffrey : Australia's international human rights legal obligations go beyond the death penalty. We are not obliged to assist, under this treaty, when it comes to the death penalty or when it comes to other cruel or inhuman punishment that we have agreed, under our international legal obligations, to resist. Our DFAT colleagues can set out what those cruel and inhuman punishments are; there is a specific list under our international legal human rights obligations.

With respect to your second question, you're right to note that this is a reciprocal agreement, so whatever obligations are upon us as the sending state in Japan are also upon Japan as the sending state in Australia. The specific arrangement that Australia would not be obliged to assist where we would have serious concerns about the death penalty or other punishments that would violate our international human rights obligations is not reciprocal, because we don't have the death penalty in Australia. So it illustrates (a) that it's not reciprocal and (b) the lengths that the Japanese system itself went to in order to compromise and to ensure that it could come to an agreement with Australia in a way that ensures that there is no violation of Australia's international legal obligations. That's an important point to note. Pat, do you need to add anything to those comments?

Air Cdre Keane : I would like to take Mr Pike to when this matter was discussed with Japan. It's recorded in the record of discussion, which is annexed to the treaty, that Japan itself did not envisage any concrete situations where, at the Australian end, Japan would refuse their assistance in carrying out the necessary investigations, whereas, in turn, Australia identified the issues that related to our international legal obligations.

CHAIR: Presumably, the only circumstance where this issue would arise is if a Japanese citizen—a member of their armed forces or of a civilian component—committed an offence in Australia under which the sending force had the primary jurisdiction. So it could be an offence by a member of the visiting Japanese force against other members of the Japanese force. If there was a sufficient likelihood that a person in that circumstance would be subject to the death penalty in Japan—a Japanese citizen—would we be obliged, under the second optional protocol, to not provide assistance in relation to that person?

Dr Mitchell : Not necessarily under the second optional protocol, but more broadly under the ICCPR. Just coming back to the question from Mr Pike, in terms of the non death penalty obligations, the international human rights obligations that Australia has in this space—in terms of that non-removal or what obligations we have in terms of our protection obligations—it would also include, as I think Mr Jeffrey noted, torture and cruel, inhuman and degrading treatment. So that might include, for example, indefinite periods of solitary confinement. Those are some examples of the other non-death penalty, but still significant, obligations—arbitrary deprivation of life under the ICCPR as well. The torture ones come through our obligations under the ICCPR but also the convention against torture, to which Australia is a party. So the record of discussion, as Air Commodore Keane has explained, encapsulates not just the death penalty but, of course, in this context the death penalty is a particular flashpoint for discussions during the negotiations.

Senator COX: Just as a point of clarification—and it's in a similar vein, so thank you for explaining that. My understanding is that, in this agreement, we actually say there's no requirement to give sympathetic consideration to the request of the sending state to be entrusted with the custody of a person pending the conclusion of judicial proceedings. Can you talk me through the implications of that? This is in the brief that we got. It doesn't appear in the other four agreements.

Mr Jeffrey : Do you know which text that is coming from?

Senator COX: We got it in the briefing we received, around the highlight about what the key difference is between this agreement with Japan and the other agreements that you've listed. We talk about not having the requirement of sympathetic consideration. This is the question Senator O'Neill was asking, and everyday Australians will be asking us about this: having pending judicial proceedings and keeping someone in custody is not something that's consistent with Australian law. So why is it that it appears only in this Japanese agreement and not in the other four agreements? That is at the heart of that question. Is this something that they are pushing from their end rather than from ours?

Mr Jeffrey : Air Commodore Keane is just thinking that through. The concept of sympathetic consideration is not something that we dealt with in the course of the negotiations. So the distinction that you're drawing between this agreement and our previous agreements is not one that I've addressed or have had to deal with in the context of the negotiations, so we'll take it on notice for now. We can give it some thought and provide you with a more considered answer, Senator.

Senator COX: That would be great. Obviously, these are the things that we would be considering in this. If it's specific to this agreement, is that a cultural factor, as Senator O'Neill has pointed out, versus a judicial proceeding legal response that is consistent with them not being obliged to assist but also more fulsome because there are compassionate or sympathetic grounds which, obviously, would play into being kept in custody in a separate country?

Mr Jeffrey : I just want to clarify that, were an ADF member to be subject to Japanese domestic criminal proceedings or prosecution and be in custody, it's important to underline that we would, of course, be engaging closely and constantly with the Japanese authorities in the case. Certainly, were the person to be accused of a criminal act that could attract the death penalty historically in Japan, we would be making every effort to advocate against the application of that punishment and to ensure that we are providing the support that we can. And, of course, that's goes not just for ADF personnel; any Australian citizen that commits such a crime in Japan would be subject to the same parameters.

Senator COX: Thank you.

Senator VAN: You mentioned that we have reciprocal agreements with Malaysia and Singapore. Obviously they have the death penalty.

Mr Jeffrey : PNG and New Zealand as well.

Senator VAN: Singapore, I know, and Malaysia, I believe, use corporal punishment as well. Are they excluded in any way or are we exempted by our international human rights law obligations under those agreements?

Air Cdre Keane : Our international obligations, including the obligation not to assist, would include any circumstance where a person may be sent back to a place where they may suffer irreparable harm. Those are things like cruel and inhuman treatment, torture—

Senator VAN: Would that be caning in the Singapore example?

Air Cdre Keane : I find it difficult to answer as to whether that meets the level of international legal obligations—

Senato r VAN: I couldn't answer it on my own, either, hence the question.

Air Cdre Keane : However, the benchmark that we have to work to is whether a person is likely to suffer irreparable harm as a consequence of being sent back to the state where they are subject to that.

Ms CHESTERS: I'm going to change topics entirely, so I'm sorry if I interrupt anyone's flow. To step back a bit, with this agreement, there will obviously be weapons that Japan will want to bring to Australia and vice versa—or a whole army. I'm not just asking this because we make the Bushmasters in my electorate, which I know we gave to Japan back in 2015. For our sake, are there any weapons or equipment that Japan has that we currently have bans on in Australia and wouldn't want to see here? Would they actually be brought here, and under what context would that be? Is that anything that people in Australia would be concerned about? Equally, would Japan be concerned, given the political pressures that they've had in this entire space in terms of expanding their focus on the military in recent years?

Mr Jeffrey : As you'd be aware, the treaty does not have any defence industry component. It's important to clarify what it's not. It's not a mutual defence agreement. It's not an obligation to come to each other's defence. For example, defence cooperation agreements suggest that we should deepen defence industry collaboration to produce—

Ms CHESTERS: I'm not suggesting that they buy more Bushmasters and Hawkeis, as much as I'd love it. I know that isn't this agreement. I was just thinking about the military and what they have as an army. Is there anything that we would not want to see in our country that they might want to bring here, and how does this agreement deal with those conflicts? Equally, do we have any equipment that they would not want to see on their shores in Japan? How do we work that through with this agreement? Is this even the agreement where we would do that?

Mr Jeffrey : I'll ask Air Commodore Keane to address the specific question of how we handle the carriage of weapons under the treaty. I'll put onto the record that Japan, under its constitution, maintains Self-Defence Forces. Its postwar constitution is a pacifist constitution. It has not, historically, developed capabilities to project power offshore. In terms of its weapons systems, it is defensively oriented only. Indeed, in some areas it has been constrained in its ability to develop certain capabilities. As a general rule, I'm not of the view that there would be certain classifications of weapons that would be prohibited in Australia which would affect this. Air Commodore, do you have anything to add on that front?

Air Cdre Keane : The treaty does make provision for the importation and exportation of equipment. There's stuff that we take to Japan and stuff that they bring here. The treaty provides that this should be subject to the applicable laws and regulations administered by the import and export authorities of the receiving state. What that would mean is it would be subject to the normal defence export and import controls—that normal regulatory arrangement. This would mean that a weapon that could not be imported into Australia under our law could not be brought here by Japan—and vice versa.

Ms CHESTERS: Are there any examples of that which we know of?

Air Cdre Keane : I would have to take it on notice. We are signatories to a range of treaties—like the cluster munitions treaty, and the treaty in relation to anti-personnel landmines—which would create difficulties for us were a partner to seek to bring in such equipment to Australia.

Mr THOMPSON: You can't bring RPGs and things like that?

Mr Jeffrey : There would be some difficulties, particularly in relation to weapons where Australia has signed a treaty on a ban or those sorts of things.

Ms CHESTERS: Like nuclear weapons, for example, because they have a nuclear industry. But, am I right in assuming they don't have any nuclear weapons?

Mr Jeffrey : They don't have a nuclear weapons system.

Ms CHESTERS: They're big proponents of the Treaty on the Non-Proliferation of Nuclear Weapons, aren't they?

Air Cdre Keane : They are.

Ms CHESTERS: Would they have any concerns about our expansion into nuclear submarines?

Mr Jeffrey : So Japan, as a self-defence force, hasn't sought long-range submarines. But, Japan very well understands Australia's strategic circumstances and that we do not just need submarines with a littoral capability but with a long-range capability. Japan's government is on the record as being very supportive of Australia's decision to acquire nuclear-powered submarines. And, as I said earlier today, our defence and security relationship is now at a point where we see each other as important linchpins to each other's regional strategies and so a more capable ADF is seen in Japan as a net plus for Japan's security.

Ms CHESTERS: This agreement talks about joint activities in Australia and in Japan. Does it go into those, or is it another agreement where it talks about joint activities, say, somewhere else in the Pacific?

Mr Jeffrey : It doesn't encompass activities extraterritorially; it encompasses activities that we would do in each other's territories. But certainly, in line with our country's strategic alignment and our desire to work together more broadly in our region, both bilaterally but also with other partners, we're doing more. For example, you may have seen that Japan deployed air assets to Australia earlier this year in response to the humanitarian crisis in Samoa as a result of the undersea earthquake and tsunami. So that's an example of us seeking to use each other's territory more directly to support third parties.

Air Cdre Keane : I would add, Ms Chesters, that it would apply to an offshore activity that was linked to an onshore activity. So if there's an exercise in Australia with aircraft and they're using the Western Australian or eastern Australian offshore exercise areas, then the treaty does have application to those activities. Otherwise, it must be linked to an activity in the host state.

Senator CHANDLER: I just have a couple of questions about the interaction of the agreement with UNCLOS. If you have someone at the table who can answer that, that would be fantastic. My understanding is that the agreement obviously allows receiving states to prescribe routes and restrict movement through certain areas, so how do we see this interacting in terms of Australia's ability to pass innocently through territorial waters—do we have any concerns around that?

Air Cdre Keane : Thank you for the question. I refer you first to article 5 of the treaty, which seeks to ensure that when an Australian warship is participating in cooperative activity in Japan's territorial sea and internal waters, and vice versa, the sovereignty of the receiving state is respected. We don't believe, in practice, that there's any consistency between what we've agreed under the RAA and UNCLOS. The exercise of innocent passage rights, which is the ability for a warship to travel, provided it does so in an innocent manner through the territorial sea of another state, can be distinguished from circumstances that this covers. This is about warships visiting another state to undertake mutually determined and cooperative military activities in the territorial and internal waters of the coastal state—noting that it's the latter that would be covered by this agreement. In general, there are no significant concerns with parties being able to prescribe navigation routes during a cooperative activity. In many circumstances it's just common sense not to interfere with commercial shipping, sensitive environmental areas or safety. Those are things that we indeed do ourselves with some of the activities with countries visiting Australia. So we're quite comfortable with the way that this interacts with our otherwise freedom of navigation rights under the United Nations Convention on the Law of the Sea.

Senator CHANDLER: Have there been discussions in terms of any limitations that might be placed by either Australia or Japan in relation to the agreement, or will that be one of those things that we operationalise after the treaty is agreed upon?

Air Cdre Keane : It would be activity by activity if there were sensitive areas or routes in relation to the place where we were choosing to do a particular exercise or activity. So there are many places in Japan's narrow and shallow littoral waters, where it's actually quite appropriate for the purposes of safety to use pilotage, even though, under international law, military vessels generally aren't required to use a pilot, but it is a common practice for us to do so.

Senator CHANDLER: But there have been no formal discussions on that?

Air Cdre Keane : No.

Senator CHANDLER: Thank you, Chair.

CHAIR: Thank you, Senator. That's a good question. The technical thing that's been raised is that it makes perfect sense, if you're undertaking an activity that you've already agreed on, that there'll be a conversation about routes. The point about this is that you have an international agreement that, in a set of circumstances, one country will allow the prescription of a route. It is a bit of a technical international law question, as to whether having an international agreement that allows the prescription of a route which contravenes what is otherwise the right of someone to travel innocently on whatever route they decided on whatever time of the day is inconsistent. I'll leave that to the international legal scholars to argue about. I have a follow-up question on pilotage in the Torres Strait. The material we're provided suggests that the agreement is more or less in keeping with a piece of Australian domestic legislation that covers that anyway, so there's no inconsistency between those two things. Is there anything you can offer us in relation to what it does in terms of dispensing with the requirement for pilotage in the Torres Strait?

Air Cdre Keane : This agreement does not impact that. Under Australian law, there is a pilotage scheme in place in the Torres Strait. However, the submissions that you've received are quite correct, the pilotage scheme under Australian law does not apply to sovereign immune vessels. So military vessels of states are not required to take on mandatory pilotage in the Torres Strait under Australia's law, and this agreement doesn't change Australia's approach.

CHAIR: Are there any other questions?

Mr BIRRELL: This question may be out of the realms of this discussion, but I want to raise it. I understand that the document says that this treaty does not create an alliance or any alliance-type obligations. I'm just interested in what happens to the treaty and elements of treaty if Japan's leadership, constitution and/or strategic intent changes significantly?

Mr Jeffrey : The treaty itself is not a normative agreement. It doesn't frame our activity to do a certain thing, to secure prosperity in the region or to protect each other. Often these are the things that are covered by formal alliance treaties, mutual defence pacts and so on. So it doesn't tie us to a particular geopolitical situation in the region. All it does is provide the mechanisms by which we can operate more closely together in the military domain. The trajectory of the relationship bilaterally, more broadly, will determine and govern how we use the RAA in practice. If Australia and Japan in future diverge strategically and adopt different strategic positions, you could make an argument that the RAA would end up becoming something not much utilised. But if our positions are to continue to converge strategically, I would argue that the RAA will be an increasingly omportant piece of bilateral architecture.

Mr BIRRELL: And I think that's probably the likelihood. As the chair said earlier, of things vanishing, chance can happen. If Australia's and Japan's strategic intent diverged and Japanese military personnel were in the country, does the treaty deal with that?

Mr Jeff rey : It ensures that the activity of the sending state is completely consistent with the sovereignty of the receiving state. So, were we to deem that activity unwarranted or unnecessary, it would be completely within our rights. The treaty was negotiated to have no bearing upon our sovereign rights and our international legal obligations but rather to ensure that we could do what we wanted to do together. The strategic circumstances that you have noted are driving our two countries together in ways that we have not seen before. We think that, as I mentioned at the beginning, this treaty will allow us to operate in a way that will help us, as two liberal democracies in the Indo-Pacific and two US allies, to be able to navigate a much tougher region together.

CHAIR: I'll just finish by coming back. I think it would be helpful for the community—because the next hearing is going to feature those who have an interest in the death penalty question in particular—if perhaps DFAT and the Attorney-General's Department could take it on notice to come back to us with something that, in as simple and practical terms as possible, looks at the kind of scenario that we're considering.

My understanding is that, if Australian personnel happen to be based in Japan, for example, and one were to steal the belongings of another, that would be an offence. It's interesting. Presumably, that person would be tried for theft under Australian law, which we extend, even though that's an offence that's committed extraterritorially and not in Australia. It's an offence of theft. There would be mutual jurisdiction, but under this agreement, because it's committed by a member of the visiting force upon another member of the visiting force, that person would be charged with theft under Australian law. That would also be the case for other, even more serious offences against either the person or the property of a member of the visiting force or the civilian component or in the commission of a person's official duties.

We've been referred to an example involving US forces in Korea, where US forces were driving from somewhere to somewhere else in the course of their official duties and a traffic incident occurred, resulting in the deaths of South Korean civilians. The question, of course, was the culpability of the driver in those circumstances. If that were to happen to Australians driving from somewhere to somewhere else in the course of their official duties, they would be charged, or there would be consideration as to whether the driving causing death was criminally culpable, under Australian law. Presumably, if they were found to have driven culpably, they would be imprisoned in Australia, perhaps.

The situation we're trying to understand is the narrow window—however vanishingly small, perhaps—where an Australian commits an offence in Japan and it is not in the course of their official duties, or where there's some dispute as to whether it's in the course of their official duties, and they end up in the custody and in the criminal jurisdiction of Japan, and they're charged and are sentenced to death. That clearly is possible. The agreement has done an enormous amount to try to reduce that to the smallest possible circumstances, but it's still there. I think it would be useful if you could come back to us with something in writing that really makes it clear what that window of possibility is, because that's what the next hearing is going to be focused on, because those are the submissions and the evidence from other people. I think having the government side of it will be useful for us. Have I put that clearly enough?

Mr Jeffrey : Thank you, Chair. Just to clarify: you'd like something in writing?

CHAIR: I'm asking you to take it on notice.

Mr Jeffrey : Yes, we'll take it on notice. Thank you, Chair.

CHAIR: Thank you for your attendance here today. If you've been asked to provide any additional information—as I've just asked you to do—please forward it to the secretary within seven working days. As I said in my opening remarks, it's the witnesses' responsibility to meet this deadline in a timely manner. You'll be sent a transcript of your evidence when it becomes available and will have an opportunity to request corrections to transcription errors.

Committee adjourned at 12:38