Treaty between Australia and the Kingdom of the Netherlands on the Ongoing Presence of Australian Personnel in the Netherlands for the Purpose of Responding to the Downing of Malaysia Airlines Flight MH17
5.1
This Chapter reviews the Treaty between Australia and the Kingdom of the Netherlands on the Ongoing Presence of Australian Personnel in the Netherlands for the Purpose of Responding to the Downing of Malaysia Airlines Flight MH17 (the Agreement). The treaty action was signed at The Hague on 18 December 2018 and tabled in the Parliament on 12 February 2019. A public hearing was held on 1 April 2019. The Committee’s inquiry into the treaty action lapsed at the dissolution of the 45th Parliament on 11 April 2019. The treaty was
re-referred to the Committee by the Minister for Foreign Affairs on 29 July 2019, following the re-establishment of the Committee in the 46th Parliament. As noted in paragraph 1.13, updated advice was sought at that time and information from the Department of Foreign Affairs and Trade (DFAT) was accepted as a submission.
5.2
This is the fifth prolongation of the original treaty action, which entered into force on 1 August 2014. The original Agreement was implemented under the National Interest Exemption (NIE) provisions and without following the usual treaty making process which requires that a treaty action be tabled 20 joint sitting days before binding treaty action is taken.
5.3
The Joint Standing Committee on Treaties (JSCOT) concurred with the Government’s decision to invoke the NIE at the time and later examined the original Agreement when it was tabled in Parliament on 30 September 2014. The Netherlands required a binding treaty action in order to grant the rights and protections needed to facilitate the deployment of Australian personnel to handle the downing of Malaysia Airlines Flight MH17 (MH17). However, due to Dutch domestic requirements, the duration of the original Agreement was limited to twelve months.
5.4
Australian personnel continued to serve in the Netherlands beyond the twelve month period as the investigation was extended. Therefore the Protocol Establishing the Prolongation of the Treaty between the Kingdom of the Netherlands and Australia on the Presence of Australian Personnel in the Netherlands for the Purpose of Responding to the Downing of Malaysia Airlines Flight MH17 (the Protocol) was tabled in the Parliament on 12 May 2015 to extend the original Agreement. The Committee did not hold further public hearings but reported on the Protocol in June 2015. The Committee has subsequently endorsed the prolongation of the treaty action three times under the minor treaty action provisions. Unlike previous treaty actions, the Agreement does not specify an expiry date and will provide ongoing certainty as to protections for Australian personnel in the Netherlands.
Background
5.5
Malaysia Airlines Flight MH17 from Amsterdam to Kuala Lumpur was shot down on 17 July 2014 with 298 people on board, including 38 victims who called Australia home. In response, Australian personnel were deployed to the Netherlands to assist in activities related to the immediate emergency situation and to assist the investigation into the cause of the incident.
5.6
The National Interest Analysis (NIA) explains that while the immediate emergency response to the incident has been concluded, the investigations into the downing and the preparation for the prosecution of the perpetrators in the Dutch criminal system are ongoing. Australian personnel continue to be deployed to the Netherlands to assist in this work. At the time of the NIA there were five Australian Federal Police (AFP) personnel deployed assisting in investigations as part of the Joint Investigation Team (JIT).
5.7
DFAT added that Australia and the Netherlands assert that the ‘Russian Federation is responsible at international law for the downing of MH17.’ DFAT informed the Committee that the two countries are negotiating with Russia to progress the matter and held the first round of talks in March 2019.
Reasons for Australia to take the proposed treaty action
5.8
According to the NIA, Australia fully supports a Dutch national prosecution of the individuals responsible for the downing of MH17. The Dutch national prosecution will ensure the results of the JIT investigation are taken into account and that justice for the victims and their families is delivered.
5.9
The NIA explains that Australian personnel deployed to the Netherlands will continue to support the investigation and, once commenced, the prosecution. Accordingly, the Agreement provides authorisation for Australia to send personnel and associated equipment and assets to the Netherlands for the purpose of assisting with activities relating to the downing of Malaysia Airlines flight MH17. Article 2 makes specific reference to Australia’s provision of support to the JIT and assisting with preparations for the prosecution of perpetrators responsible.
5.10
DFAT elaborated on the purpose of the Agreement, emphasising its role in pursuing accountability and justice for the victims and their loved ones:
[The Agreement] authorises and provides the legal framework for the ongoing presence of Australian personnel in the Netherlands, supporting the AFP’s participation in the JIT and defining the rights and obligations of deployed Australian personnel. The treaty advances Australia’s objectives. It enables Australia to participate in establishing the truth of the events that led to the death of so many who called Australia home and it allows us to contribute to the Dutch national prosecution of the individuals responsible for it. It supports Australia’s efforts with the Netherlands to hold the Russian Federation to account for its role in the downing.
5.11
The NIA states that these activities are not expected to conclude within the next twelve months. DFAT elaborated on the difference between this Agreement and the previous iterations of the treaty action:
This treaty differs from the earlier treaty in the key respect that it continues until either side terminates it. What that means is that, having gone through five of these prolongations, it has become clear to us that the process will not be resolved within another 12 months. So we have agreed with the Netherlands to put aside the original treaty and enter a new treaty with the same provisions, apart from the fact that it’s ongoing.
5.12
DFAT pointed out that the only other differences between this Agreement and the previous treaty actions concerned the changed nature of the mission:
The second difference essentially reflects the fact that the treaty that has been concluded now was not done in the immediate aftermath of the downing as was the original treaty. In that treaty there were provisions that allowed the AFP to carry firearms. There were also provisions with respect to the repatriation of bodies. Those provisions are now not needed, because the AFP is in a different mode in the Netherlands.
5.13
Asked if the remains of all the Australian citizens and residents had been repatriated, the AFP informed the Committee that:
All of the Australian victims have been identified and repatriated. There is the potential for other remains to be identified over future years, depending upon access to the site and who gets access to the site. So you may well see in the media that additional remains have been identified. We are in constant contact with the next of kin if that is the case and if there is the potential for those small fragments to be identified as linked to Australian victims.
5.14
The Committee asked if there is a timeframe for the operation. The AFP explained that as the operation is transitioning from an investigation into a prosecution phase, it is difficult to estimate how long it will take to conclude:
The AFP will have a presence during the prosecution phase—so as it transitions from investigations into prosecutions—for two reasons: firstly, there will always be questions for investigators during the prosecution phase; and, secondly, we would expect investigations to continue against individuals who are deemed to be culpable and that they will be phased. One option is that all the individuals would be prosecuted as co-accused. Another option is that they would be prosecuted individually. Obviously the time lines will be dependent on which approach is adopted.
5.15
DFAT provided the Committee with an update on the prosecution phase, advising that:
On 19 June [2019] the JIT announced the indictment of four individuals for their alleged roles in the downing of MH17. This represented an important step towards justice and accountability for the victims of the downing, including the 38 who called Australia home, and their loved ones. Prosecutions of these individuals are expected to commence in a Dutch court in March 2020.
5.16
Further indictments may occur and the JIT’s work is ongoing.
Obligations
5.17
The NIA offers assurance that the Agreement essentially follows the form of the original MH17 Treaty examined by the Committee but language referring to the initial emergency situation has been removed. It no longer provides for the repatriation of the body of an Australian official who dies in the course of activities and removes the provision permitting Australian personnel to carry weapons. The original MH17 Treaty will cease to have effect from the date of entry into force of this Agreement (Article 14(2)).
5.18
Under Article 3 Australians deployed to the Netherlands are required to respect the sovereignty, territorial integrity and political independence of the Netherlands, the laws of the Netherlands, and must refrain from any activity incompatible with the purposes of the Agreement.
5.19
Article 3 also ensures that Australian personnel remain under Australia’s command and control while deployed, and Australian authorities are obliged to take administrative or disciplinary action in accordance with Australian laws, regulations and policies if necessary. Neither Party is permitted to take administrative or disciplinary action against the other Party’s personnel.
5.20
Article 4 provides Australian personnel status equivalent to that accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations (Vienna Convention). Where a member of the Australian personnel is also accredited as a diplomatic agent of the Australian Embassy to the Netherlands, they will be provided with the full privileges and immunities available to diplomatic agents under the Vienna Convention. The Agreement requires Australia to withdraw deployed personnel at the Netherlands’ request.
5.21
Article 5 waives claims between the Netherlands and Australia that arise from activities covered by the Agreement, except where such claims arise out of wilful misconduct, recklessness or gross misconduct. The Agreement also sets out procedures for dealing with third party claims, apportioning liability on the basis of responsibility.
5.22
Article 9 provides permission for Australian personnel to wear national uniforms; Article 10 requires the appointment of an Australian Senior Representative in the Netherlands to serve as a point of contact with Dutch authorities; and Article 12 regulates the sharing and disclosure of information, including that relating to deployed personnel and the victims of MH17.
5.23
Article 6 provides that Australian personnel enjoy entry, exit and movement within the Netherlands without delay or hindrance. Article 8 provides that Australian personnel be granted the use of facilities, such as training centres, or be entitled to establish facilities in the Netherlands as mutually determined. Article 11 provides that guard duties related to the security and safety of Australian personnel and assets shall be the responsibility of the Netherlands.
Implementation
5.24
The NIA advises that no legislation is required to implement Australia’s obligations under the Agreement.
Costs
5.25
Article 7 permits Australia to import, export, possess, store, move and use equipment, supplies and other items for the purpose of responding to the downing of MH17 free of duties, taxes and charges. The NIA notes that this exemption does not apply to goods purchased in the Netherlands.
5.26
The NIA states that Australia will otherwise follow budgetary processes and rules to fund activities carried out under the Agreement. This may include the need for supplementary funding to agencies.
5.27
The NIA notes that the 2018–19 Federal Budget allocated $50.3 million over four years to support this prosecution. The Committee asked for details on the expenditure to date and if the budget was adequate. DFAT advised that the budget is being managed so as to satisfactorily meet the requirements of the mission but that so far expenditure has been slower than expected:
The budget allocation of $50.3 million over four years goes to support the Dutch national prosecution of the individuals responsible for the crime. The prosecution hasn’t started yet, and that has meant that we haven’t spent as much money as we would otherwise have spent. The $50.3 million is divided into two allocations. One of those is $37.4 million, which is in the department’s administered budget. I am not aware that any of that has been spent at this point. That will go to support the prosecution and so support the families’ participation in the prosecution. The remainder is in the department’s departmental budget. Just over $1 million of that has been spent as at last Friday. That has gone to a range of issues, including travel, short-term missions for people and to support our post in Kiev.
Conclusion
5.28
The Committee once again commends the work of the dedicated Australian personnel who continue the investigation into the tragic downing of MH17 and welcomes the implementation of these more permanent arrangements to facilitate Australia’s pursuit of accountability and justice for the victims and their loved ones. The Committee understands that the work is expected to continue for some time as the mission moves into its prosecution phase.
5.29
The Committee is aware that this treaty action entered into force on 28 June 2019 under the National Interest Exemption (NIE) provisions to ensure that Australian personnel deployed in the Netherlands remained protected when the fifth prolongation of the Original Treaty expired on 30 June 2019.
5.30
Therefore, no further recommendation of the Committee is required.