- Australia–Timor-Leste defence cooperation
Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Cooperation in the Field of Defence and the Status of Visiting Forces
Introduction
2.1The Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Cooperation in the Field of Defence and the Status of Visiting Forces (the Agreement) establishes a legally binding framework to govern defence cooperation activities between Australia and Timor-Leste.
2.2Timor-Leste would be the ninth country with which Australia has negotiated a status of forces agreement. The provisions in the Agreement are similar to those in Australia’s other status of forces agreements, such as those with Japan, France, Philippines and New Zealand.
Background
Australia’s defence engagement with Timor-Leste
2.3Australia has had significant defence engagement with Timor-Leste since 1999. This has occurred bilaterally, and as part of United Nations (UN) missions or in support of UN missions, including the International Force East Timor (INTERFET) and the International Stabilisation Force (ISF). Australian police and civilian advisers, in addition to military personnel, have been involved in various engagement activities.
2.4Australia considers Timor-Leste a key strategic defence partner and currently operates a comprehensive Defence Cooperation Program (DCP) with the FALINTIL-Forças de Defesa de Timor-Leste (F-FDTL). The DCP is delivered by in-country advisers through mentoring, infrastructure development, participation in Australian Defence Force exercises and training, and direct service-to-service training.
2.5Under the Pacific Maritime Security Program (part of the DCP), Australia is scheduled to gift two Austal-built Guardian class patrol boats to Timor-Leste in 2024, and to support their ongoing operations and maintenance. The Department of Defence expects the patrol boats will enable Timor-Leste to effectively manage its exclusive economic zone and combat illegal fishing.
2.6According to the Department of Defence:
We have warm people-to-people links, and we are committed to building the Timor-Leste Defence Force's capability and capacity. By our reckoning, over 1,000 members of the Timor-Leste Defence Force have received training from Australia.
Reasons for Australia to take the treaty action
2.7The Department of Defence told the Committee that enhanced defence cooperation under the Agreement would ‘contribute to the meeting of shared regional security challenges … Strengthening engagement with the Indo-Pacific with our partners will help maintain peace, security and prosperity in our region’.
2.8The Department of Defence added that the priorities under the Defence Strategic Review ‘are to increase our diplomatic and deepen our defence relationships and partnerships. Part of this process is through enabling our defence cooperation agreements’. Such bilateral tools ‘enable peace, prosperity and frameworks by which we can coordinate and cooperate’.
2.9The Department of Defence also highlighted the current arrangements for the deployment of Australian defence personnel which are governed by a 2002 exchange of diplomatic notes. This was intended to be an interim arrangement and the presence of Australian personnel in Timor-Leste outside the Defence Cooperation Program requires ad hoc approval from the Government of Timor-Leste. The Department of Defence stated:
Since 2002, defence cooperation between Australia and Timor-Leste has grown in breadth and depth, rendering the current arrangements as less than ideal, due to their complexity and temporary nature, as well as the fact that they only apply to Australian personnel in Timor-Leste and not Timor-Leste personnel in Australia.
Obligations
2.10The National Interest Analysis (NIA) stated the Agreement would establish a legally-binding framework for mutually beneficial defence cooperation that would:
- enable Australia to participate in more frequent and sophisticated bilateral military activities
- provide a clear pathway to expand and improve the quality of defence engagement
- reinforce Australia’s close bilateral defence relationship.
- The key obligations that the Agreement covers are outlined below.
Defence Cooperative Activities
2.12The Agreement is intended to facilitate defence relations through the undertaking of cooperative activities ‘related to defence’ between Parties. Article 2 of the Agreement lists a number of cooperative activities that may be undertaken including:
- joint or unilateral visits and military exchanges, operations, exercises and other activities
- international humanitarian assistance and disaster relief
- joint or unilateral education and training of military personnel
- maritime military operations, exercises, training and education
- logistic support
- exchange of information, including classified information and defence intelligence information
- activities to enhance the interaction of the respective military cultures
- other cooperative activities related to defence as mutually determined.
Facilities
2.13As with other status of forces agreements, the Agreement details how requests for facilities and related services will be addressed. The NIA notes that the Parties are to mutually determine arrangements, including financial arrangements, for the use of such facilities and services.
2.14The Agreement is silent on which Party is responsible for the overall control of the facilities and areas made available to the visiting force and civilian component. The Department of Defence advised:
In the absence of a provision which cedes some sort of control or authority over a facility in the receiving state, then the receiving state's jurisdiction and control will continue to apply. So the default position, as it were, is that the receiving state will retain control of facilities and access and like issues.
Status of forces
2.15Annex 1 deals with a range of issues concerned with the movement of personnel, materiel and other effects into, within and from the territory of the receiving state; arrangements within the receiving state for the visiting force; and local laws, disciplinary matters, and criminal jurisdiction.
2.16Article 1 of Annex 1 outlines that the visiting forces, civilians and dependents are subject to, and must observe, the laws and regulations of the receiving state, subject to some disciplinary and criminal jurisdiction matters.
2.17Article 2 provides that the sending state retains responsibility for administrative and disciplinary matters over members of the visiting force and civilian component. The receiving state may request a person be repatriated to the sending state for the administration of any punishment. The sending state has the right to maintain military police for the maintenance of good order and discipline within the visiting force.
2.18Article 4 provides for entry and departure conditions for visiting forces, civilian components and dependents, and notes that the agreement does not provide any permanent residence rights for the visiting forces.
2.19Article 5 deals with diplomatic clearances, movements, harbour and airport charges, and fees. In general, providing the specified requirements are met and procedures are followed, military aircraft and vessels and official motor vehicles may enter and depart the receiving state in connection with activities mutually approved by the Parties.
2.20Article 5 states that, subject to respect for local laws, individual members of the visiting force and civilian component are to have freedom of movement in the territory of the receiving state for the purpose of lawful activities.
2.21Article 6 specifies conditions for import of certain personal effects for members of the visiting force, civilian component and dependents, free of duty, providing specified conditions are met. It also outlines a range of items which can be imported free of duty by the visiting force.
2.22The Agreement specifies the terms under which certain items imported by the visiting force and civilian component are to be exported, or in very limited circumstances, disposed of in the receiving state. These arrangements closely follow those found in other agreements such as the Australia-New Zealand Agreement and the Australia-France Agreement.
2.23Article 7 specifies provisions for visiting forces to possess and carry weapons, when authorised and in circumstances previously approved by the receiving state. The Agreement also specifies the arrangements for import, transport, storage and use of weapons, ammunition and dangerous goods, including quantities and types.
2.24Article 8 details conditions around purchasing of local goods and services and also engagement of local labour. The Agreement outlines, where the sending state and its contractors engage local labour in the receiving state, the conditions of employment and work are to comply with the minimum standards required by the laws of the receiving state.
2.25Articles 12 and 13 of Annex 1 make provisions regarding the validity of professional, technical and trade licences and qualifications, driving licences and vehicle registrations of the sending State in the receiving State. The Agreement specifies conditions for medical professionals noting that they require the prior consent of the receiving state to provide such services for the benefit of the general public.
Communications
2.26Article 14 provides that the installation of a telecommunication system by the visiting force is subject to authorisation from the receiving state, and should not interfere with communication networks in the receiving state.
2.27The Agreement also requires the receiving state takes reasonable measures to avoid interference by communications or other electrical installations in the receiving state with the communication facilities of the visiting force.
Environmental, cultural and health considerations
2.28As with the recently signed Australia-Japan Agreement, and the earlier Australia-Philippines Agreement, the Parties are to implement the Agreement in a manner consistent with the protection of the environment, cultural heritage and human health and safety in the receiving state. The sending state, in consultation with the receiving state, is to promptly take appropriate measures to address any damage or potential damage to the environment, cultural heritage, and human health and safety.
2.29La’o Hamutuk, in its submission, suggested the Agreement should include provisions about protecting the human, political and civil rights of citizens, not only the environment, cultural heritage and human health and safety.
Criminal jurisdiction
2.30The arrangements for criminal jurisdiction for members of the visiting force, civilian component and dependents within the receiving state closely follow those found in Australia’s other status of forces agreements. Article 3 of Annex 1 outlines that Australia would have:
…exclusive competence regarding administrative and disciplinary matters over members of the Australian visiting force and its civilian component when they are in Timor-Leste under this Agreement.
2.31Article 3 also outlines that where a member of the visiting force, civilian component or a dependent is taken into custody, detained or prosecuted by the receiving state, that person is to be accorded all generally accepted procedural safeguards under the international legal obligations of the receiving state and not less than those provided to the nationals of the receiving state. A number of minimum procedural safeguards are specified in the Agreement.
2.32Article 3 further outlines that any person convicted or acquitted of an offence by one Party, in accordance with the criminal jurisdiction provisions, may not be tried again by the other Party for an offence that is substantially the same.
2.33The Agreement also makes clear that a death sentence is not to be sought, imposed or carried out by either Party over a member of the visiting force, civilian component or dependents.
Claims
Claims between Parties
2.34In relation to claims between parties, the Agreement outlines the conditions under which claims can be waived against the other Party. Where an injury or death of a member of a force or civilian personnel occurs in the performance of official duty, the Agreement notes that claims are similarly waived unless there was gross negligence or wilful misconduct.
2.35Where there is agreement between the two Parties that damage, loss, injury or death was caused by a reckless act, reckless omission, gross negligence or wilful misconduct on the part of a member of a force or civilian personnel, the Agreement states that the Party to whom the member belongs is to be solely responsible for the claim.
2.36The Parties are to settle all other claims against each other through consultation.
Third party claims
2.37In regard to third party claims, the Agreement provides for the following procedure to apply (subject to conditions):
- claims are to be filed and adjudicated in accordance with the laws of the receiving state
- claims not adjudicated are, in consultation with the sending state, to be considered and settled in accordance with the laws of the receiving state
- payment of any amount agreed by the Parties with the claimant or determined by adjudication is to be made by the receiving state in its currency, and is to constitute a binding and conclusive discharge of the claim
- claims paid by the receiving state are to be communicated to the sending state, including the proposed distribution of costs, which is determined according to each Party’s responsibility for the incident (as further detailed in the Agreement).
- Where claims arise from acts or omissions not in the performance of official duty, they are to be settled or adjudicated in accordance with the laws of the receiving state. The Agreement notes that the sending state is not to claim immunity from the civil jurisdiction of the courts of the receiving state in respect of any act or omission by a member of the military or civilian personnel and their dependents in the receiving state.
Views on third party claims
2.39In the past, Australian forces deployed to Timor-Leste have, through vehicle accidents, caused the injury of, and in one case, caused the death of, Timorese citizens. According to ProfessorClinton Fernandes, the status of forces agreement for the ISF exempted Australian personnel from local laws and judicial systems. In effect, this meant Timorese citizens could not take effective action to resolve complaints against Australian personnel. The same issue was raised by La’o Hamutuk.
2.40Professor Fernandes stated:
The Department of Defence later admitted that between 2008 and mid-2010, Australian soldiers in Timor-Leste had been in nine vehicle crashes in which civilians were injured. It paid no compensation to the victims because under the Status of Forces Agreement it was Timor-Leste’s responsibility to do so.
2.41In response, the Department of Defence told the Committee that under the Agreement, members of the visiting force and civilian component would be subject to the laws and regulations of Timor-Leste. The Department of Defence stated:
…the default position, unless there's any other carve out within the treaty, is that they're subject to the local law and would be subject to any issues in relation to civil claims, like the ones that were raised in some of the submissions.
2.42The Department of Defence stated it recognised that it might be difficult for a Timor-Leste citizen to pursue a civil remedy against a foreign defence force, and as such:
These kinds of treaties make particular provisions about that imbalance between a citizen of the receiving state and having to take an action against a foreign government, which can be a difficult thing. It is why they, in general—and this one is an example—provide for things like that claims are adjudicated in the receiving state and that payments of amounts are made by the receiving state in its currency.
Views of submitters on the historical relationship between Australia and Timor-Leste
2.43Two submissions to the inquiry suggested Timorese experiences with Australia had been both positive and negative. La’o Hamutuk (Timor-Leste Institute for Development Monitoring and Analysis) explained that INTERFET played an important role in stabilising Timor-Leste, and that ‘well-trained and well-disciplined Australian troops provided a clear contrast to the Indonesian military’. They noted that the Australian Government had responded to a request from Timor-Leste for international assistance that resulted in the ISF.
2.44La’o Hamutuk also stated the ‘troublesome history of Australian military activities has left deep scars’ suggesting that there was a view the ISF could have departed earlier. La’o Hamutuk contend that insufficient acknowledgement and compensation for injuries caused by vehicle accidents involving Australian forces remained an issue.
2.45Sister (Dr) Connelly stated that while ‘many Timorese happily testify to the kindness, generosity and genuine friendship offered by Australian soldiers’ and other Australians, past mistakes had been made and it was important to acknowledge these matters to ensure ‘strong, trustworthy, future relationships’.
2.46La’o Hamutuk also suggested Australian behaviour during the negotiation of the maritime boundary between Australia and Timor-Leste demonstrated the fair resolution of disputes between the two countries may require assistance from a third party.
Consultation
2.47According to the NIA, the Department of Defence consulted the Department of Prime Minister and Cabinet, the Department of Foreign Affairs and Trade, and the Attorney-General’s Department, none of which identified any concerns.
2.48State and territory governments were consulted through the Commonwealth-State-Territory Standing Committee on Treaties. The NIA states the Department of Defence has not received any requests for further information or comments, and no action to implement the Agreement would be required of state and territory governments.
Conclusion
2.49The Agreement with Timor-Leste adds to Australia’s existing network of defence cooperation and status of forces agreements and represents the strengthening of Australia’s diplomatic and defence ties across the region.
2.50The Committee notes evidence from the Department of Defence that agreements such as this mark a mature and deep relationship. The Committee agrees that having the forces of another country in one’s own sovereign territory represents a significant degree of trust, closeness, and cooperation.
2.51The Committee believes that where Australian military and related civilian personnel are present in another country through a status-of-forces agreement, the Government must ensure that fair, appropriate, and timely responsibility is taken for the impacts on local citizens of accidental, negligent, or unlawful conduct; being mindful in some cases that domestic legal processes may not be easy to access, and being wary of the potential for the disparity in legal and other resources between the Australian Government and a local claimant to delay or otherwise influence the achievement of a just outcome.
2.52The Committee supports the ratification of the treaty and recommends that binding treaty action be taken.
2.53The Committee supports the Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Cooperation in the Field of Defence and the Status of Visiting Forces and recommends that binding treaty action be taken.