Strengthening law and justice

The joint DFAT/AusAID submission refers to the importance of strengthening law and justice in the Pacific:

Effective law and justice systems promote human, national and regional security. Australian aid to law and justice in the Pacific supports the rule of law and helps to realise broader development goals. An effective justice sector promotes better livelihoods for the poor and provides necessary protection of economic and social as well as civil and political rights. It also protects against corruption and the arbitrary use of state power, while at the same time increasing international confidence and helping to attract foreign investment.¹

Operational environment

Law and justice challenges in the Pacific have detracted from the region’s stability in recent years. In addition to the factors that led to the establishment of RAMSI in the Solomon Islands and ECP in PNG in 2003, there have been a series of events throughout the duration of this inquiry that, at the February 2007 hearing, DFAT referred to as ‘a period of some difficulty.’ These include:

• the coup in Fiji in December 2006 and subsequent allegations of human rights abuses by the military (the coup resulted in a suspension by Australia of elements of Australia's aid such as the Defence Cooperation Program);
  
  
• riots in the business district of the capital of Tonga in November 2006 which led to a request for assistance from Australia and New Zealand to help stabilise the situation;
  
  
• the flight of Mr Julian Moti (the then suspended Solomon Islands Attorney-General) from PNG to Solomon Islands, assisted by the PNG Defence Force at a time when Australia had made a request to PNG for Mr Moti's extradition to Australia;
  
  
• riots in Honiara in April 2006 that destroyed Chinese businesses, and the Solomon Island Government's action banning the Police Commissioner, an Australian, from re-entering the country; and
  
  
• concerns by Australia about the wishes of the Solomon Islands Government to re-arm part of its police force, given the role that the police played before 2003 in the problems in the Solomon Islands.²

Subsequent to the February hearing, other events have transpired: the NZ High Commissioner was expelled from Fiji³, Mr Moti was reinstated as the Solomon Islands' Attorney-General overriding his suspension by the Solomon Islands’ Public Service Commission,⁴ and national elections in PNG have been held, which ‘have gone better than the previous, chaotic election in 2002’⁵, but nonetheless been marked by a high security presence, especially in the Highland provinces,⁶ and concerns about vote rigging.⁷

Despite the multifarious challenges in parts of the region, DFAT told the Committee that the Pacific was very much ‘a mixed picture’ and there was ‘a positive side of the ledger’, particularly with respect to the RAMSI intervention which has broad support:

There is peace in the Solomon Islands at the moment, which contrasts with the situation in 2003. I do not think it is an exaggeration to say that there are people in the Solomon Islands now who would have been dead if RAMSI had not intervened in 2003. We have had strong support for RAMSI from the Pacific Islands Forum meeting in October 2006.⁸

DFAT also emphasised that opinion polls conducted in the Solomon Islands indicated that the RAMSI presence was ‘deeply appreciated’ by the Solomon Islanders.⁹

DFAT stressed to the Committee that governance was a long-term effort that involved setbacks and difficulties but required persistence:

It is an effort that will take time … you do not say “it’s too hard and walk away.”¹⁰

The Australian Government devotes considerable resources to the long-term strengthening of law and justice in the Pacific via a ‘whole-of-government’ approach (outlined in Chapter 1). 

Department of Foreign Affairs

Inter-agency coordination

At the hearing, the Committee asked DFAT to characterise its management of Australia’s whole-of-government response, and to comment on the extent to which Australia’s response may occur in ‘silos’.  DFAT described the cooperation that exists between departments and agencies:

DFAT chairs committees on both RAMSI and ECP in PNG which meet weekly, and they consider all the issues that are currently before RAMSI, from the day to day issues of visas and the like, to the broad strategic issues of what threats is RAMSI under, how are we going to deal with it. That takes a great deal of time and effort, but I have to say that the cooperation of all other departments—and there is a broad range of departments involved in both RAMSI and ECP—is outstanding. I really do not think there is a great problem with whole-of-government coordination. I am confident, from where I sit, that the silos do not exist independently and work independently of each other. We certainly, in DFAT, spend a great deal of time and effort in making sure that that is not the case. In addition to the weekly processes, we would call ad hoc interdepartmental groups together on big issues, small issues, whatever, almost on a weekly basis I would think.¹¹

From its perspective, the Attorney-General’s Department (AGD) said that regional assistance on law and justice is most effective when the work of AusAID, the AFP and AGD is integrated.¹²

Attorney General's Department

The AGD submission sets out the activities undertaken by the Department to address some of the important challenges in the region’s law and justice sectors.  One portfolio agency, the AFP, made a separate submission (see below), however other contributing agencies provided information to AGD to include in its submission.  These agencies include the National Judicial College of Australia, the Federal Court of Australia, the Federal Magistrates Court, the Australian Transaction and Analysis Centre (AUSTRAC), the Australian Customs Service and the Commonwealth Director of Public Prosecutions.¹³ AGD later tabled a supplementary submission with updates to its original submission.¹⁴

As AGD's submissions indicate, the Department's engagement in the Pacific is extensive. The assistance provided by the AGD portfolio contributes directly to the second key focus area identified by the White Paper, namely fostering functioning and effective states. At the hearing the Department canvassed the breadth of its activities:

• the Anti-Money Laundering Assistance Team provides training and advice to Pacific Island countries on how to establish systems to combat money laundering and terrorist financing (through regional workshops followed by in-country mentoring);
  
  
• the National Judicial College of Australia runs courses on judgement writing, sentencing and court craft;
  
  
• the Pacific Legal Knowledge Program delivers legislative drafting training (there is a shortage of drafters in the Pacific and AGD also helps fill that gap);
  
  
• staff are provided to work in-line in law and justice agencies in the region. Australian prosecutors, legal policy advisors and customs officers work in PNG under the ECP, undertaking key functions themselves whilst helping to build the capacity of their work colleagues and the institutions in which they work. Australian customs officers undertake similar work in the Solomon Islands. There is also a twinning program whereby PNG and Solomon Islands customs officers are given the opportunity to work in-line in Australia;
  
  
• a legal library twinning program operates in Samoa and Tonga whereby the AGD library offers computer-based legal research training for legal professionals in those countries;
  
  
• Pacific Island states are involved in regional counter-terrorism exercises;
  
  
• database support is provided to Financial Intelligence Units in Fiji, the Cook Islands, Tonga, Vanuatu, Palau, Samoa and Solomon Islands; and
  
  
• assisting in developing the Australian Government's new Anti-Corruption for Development strategy.¹⁵

In discussions with the Committee, the Samoan High Commissioner to Australia, HE Dr Eteuati remarked that Australian aid had made a huge contribution to Samoa in respect of justice and law.  For example, Australia was building the country’s police headquarters and providing a major training program for police.  Also, the country’s customs service had been revamped with assistance from Australia and that had been ‘an outstanding success.’¹⁶

Domestic politics and sensitivities

At the hearing the Department stated that despite some political turmoil or flux in places like Fiji and the Solomon Islands, its work with financial intelligence units in both countries had continued to operate normally.¹⁷ AGD highlighted the importance of maintaining continuity at the program level:

Our aim is to be able to influence particular sectors or sections of administrations or people within those administrations and hope that these things can take hold and continue to operate…despite some of the problems that have occurred, including in the bilateral relationship, obviously.¹⁸

At the hearing the Committee asked AGD if it would comment further on the impact that domestic challenges in some of Australia's Pacific partner countries have on Australia's ability to deliver aspects of its aid program.¹⁹

AGD told the Committee that the impact depended on the particular program or aspect of aid delivery and its proximity to political events.  For instance when part of the ECP program was deemed to be unconstitutional by PNG there were issues regarding whether AGD’s prosecutors and correctional officers would continue to work in-line.  Those issues were subsequently reconciled.²⁰

The Committee commented that much of AGD’s work—be it on police powers, counter- terrorism or anti-corruption—must have elements of domestic sensitivity and enquired how the Department approached that particular aspect of engagement.

AGD explained that its approach was consultative and based on international best practice, the UN and other international fora. The Department noted that it had worked closely with the Pacific Island Forum on the implementation of the Nasonini and Honiara Declarations (on counter-terrorism and transnational crime measures), both of which were based on existing international conventions or approaches to these issues.²¹

Child abduction

In AGD’s submission mention was made of an AusAID-funded project devised by AGD’s International Family Law section to develop procedures in PNG for dealing with parental child abduction.²²

At the hearing, the Committee was curious to learn to what extent parental child abduction was a significant issue in PNG.²³

AGD replied that while the occurrence of child abduction in the Pacific  was not on a par with countries like Australia and NZ, there had been some cases in Tonga and there were previously few procedures in place to deal with these kinds of situations.  Further, it was important to have systems in place before they happened.  Moreover, it was part of a broader encouragement of Pacific partners to adopt the appropriate Hague conventions and develop family law.²⁴

Legal training in Australia

The Committee advised AGD that it had taken some anecdotal evidence that educational and professional links between Australia and the Pacific had declined in recent years.  In this context, the Committee wished to learn what the statistics were for Pacific Islanders receiving legal training in Australia.²⁵

Later AGD supplied data demonstrating that between 2002-2006 the number of Pacific students commencing legal studies in an Australian institution each year had been steady. The number of students enrolled in an Australian law school has fluctuated between 49 and 35 during that five year period.²⁶

Civil society

The Committee told AGD that it had discussed with DFAT and others the level of civil society development and engagement that Australia has in the region.  Reiterating the importance of making connections beyond government-to-government ones, the Committee asked what emphasis AGD placed on these aspects of Australian aid.²⁷

AGD responded that much of its work had an impact on civil society.  In addition to that already mentioned, work in emergency management and disaster prevention was strengthening civil society capacity and this was an area of operation likely to grow.²⁸ AGD later supplied information on consultation processes that the Department had had with the wider community in the Pacific, including outreach programmes in Customs in Samoa and PNG, and engaging with law societies and NGOs in the community sector in Tonga and Fiji on diagnostics projects, run under the auspices of the Federal Court of Australia.²⁹

Australian Federal Police

At the hearing the AFP observed that the challenges of capacity building in the Pacific had ‘continued if not increased significantly in the time since the AFP had written its submission to the inquiry.³⁰ There were also a number of updates:

• a further 25 police officers had graduated from the Solomon Islands Police Force Academy, and another 30 were currently being trained;
  
  
• the promotion of three Solomon Islander executives who had completed the leadership program constructed by the AFP in partnership with the Australian Institute of Police Management;
  
  
• 300 graduates had completed driver training in the Solomons important given the high incidence of road accidents in the country including those committed by police officers; and
  
  
• a new multi-agency centre had been opened—which includes a fire station at Noro in the Western province—increasing the capacity to fight crime and fires outside of Honiara.³¹

The AFP also reported that following the riots in Tonga last year, a joint scoping mission between the AFP and NZ Police, supported by AusAID and NZAid and DFAT would be sent to Tonga to ascertain what further assistance might be offered to the Tongan Police Force to boost their capacity. In the meantime, three AFP officers remained on the ground in advisory roles to help on a broad range of policing matters.³²

International Deployment Group

The International Deployment Group (IDG) was established in February 2004 to manage the deployment of Australian and Pacific Island police overseas. The purpose of the IDG is to contribute to regional stability and security on behalf of the Australian Government by:

• contributing to offshore law enforcement initiatives; and


• participating in capacity development programs within the Law and Justice Sector.³³

In the Pacific, the IDG currently has members from both the AFP and state jurisdictions (appointed as special members of the AFP for the duration of their IDG service) deployed to the Solomon Islands, Tonga and Vanuatu.³⁴

On 25 August 2006, the Australian Government announced its intention to substantially increase the IDG by 400 personnel to a total of 1200 at a cost of some $493 million over the next five years. This will be the largest single increase in AFP staff since the force was established in 1979.³⁵

At the hearing the AFP reported that the increase in resources had facilitated an expansion in capability, including a greater focus on human rights training, coaching and mentoring:

Our training curriculum has now extended from 15 to 35 days, with a much larger emphasis on cultural sensitivity and human rights training… From being invited to be an intervention force, our officers can quickly find themselves in the role of coach and mentor and our training curriculum now reflects that requirement.³⁶

Inter-operability with the ADF

At the hearing, the Committee asked the AFP to describe how it worked with the ADF on peacemaking and peacekeeping missions in the region.  The AFP replied that over the last couple of years the relationship had evolved considerably owing to the requirement to respond to situations together or with one being led by the other. The AFP added:

We have a number of initiatives—joint exercises and the exchange of our officers within our two departments—now, so we are responding to what the environment is telling us is likely to be for the future. Our two agencies are much more compatible in our operational capabilities.³⁷

Operational Response Group

The extra resources allocated to enhance the AFP’s capacity to respond to international crises allow for the establishment of a 200-strong Operational Response Group (ORG), ready to respond at short notice to emerging international law and order issues and stabilisation operations.³⁸

Update

The Committee requested an update on the status of the ORG at the hearing. The AFP reported that building the capacity of the ORG was a priority and that infrastructure surrounding it was well underway. Recruitment had commenced in early 2007 and was progressing. As of 5 March 2007, the ORG had 40 members, including the Commander and Executive Assistant.³⁹ The AFP now has a dedicated section on its website about the various components of the ORG.⁴⁰

Role

At the hearing the AFP elaborated on the ORG's specific focus:

It is about our offshore deployment, tactical capabilities in [complex, extended] missions [such as East Timor], [providing] security for our people who serve in those missions and the heightened level of capability required to provide that.⁴¹

The AFP emphasised that it only responded on invitation from the host country and of course, at the direction of the Australian Government.⁴²

Policing in the Pacific documentary

In early 2007 SBS television broadcast a four-part documentary series called Policing in the Pacific.  The series provides a first-hand account of the experience of Australian police working in operations overseas.  The first episode about the RAMSI intervention in the Solomon Islands covered the prevalence of rape and child abuse and how these sorts of crimes are seldom formally reported.

A recent UNICEF report noted a high level of sexual violence against children from five Pacific countries in which it conducted studies (Fiji, Kiribati, PNG, Solomon Islands and Vanuatu).⁴³

Oxfam’s submission suggested that the skills of women police should be developed further to help investigate cases of violence against women.⁴⁴

At the hearing the Committee asked the AFP to elaborate on its role in partnership with local police to try and combat these terrible crimes.⁴⁵

The AFP noted that an unwillingness to give evidence in such crimes remained a significant problem in the region. However, as the series showed, it was working hard on building trust again between locals and police in communities where previously there had been little. One of the AFP’s approaches was to assign an AFP officer to a Royal Papua New Guinean policewoman and have them travel from village to village in the Solomon Islands to talk with people on the ground about how these kinds of crimes are unacceptable and how and why they should be reported:

…obviously the choice of having a senior Royal Papua New Guinean woman and an Australian officer working together was not coincidental. It really is about outreaching … and reaching out into the communities in the provincial areas …⁴⁶

Human rights training

In October 2006, Human Rights Watch issued a follow-up report to its earlier reports in 2004 and 2005 about police violence against children in PNG, stating that problems remain despite recent juvenile justice reform efforts. According to the report children and others in police custody are often raped and tortured.⁴⁷

The Committee asked the AFP what role Australia could play to help combat these human rights abuses.⁴⁸

The Assistant Commissioner told the Committee that:

Obviously wherever we are present, we would [try to] ensure that did not occur.⁴⁹

The AFP said it had been developing a human rights training program specifically to raise the level of awareness of human rights issues with police counterparts around the region.⁵⁰

Considerable thought and effort has gone into creating a program which is practical, flexible and effective:

Clearly, putting a manual before someone in the training room is not going to be the answer to the problem … It is about trying to make our delivery relevant to that [particular] country and that culture…there is a considerable degree of flexibility … We have found it to be more effective when you engage with NGOs, the national women’s group and consultative council in the Solomons, for example.⁵¹

At the Sydney hearing, the Director of the Asia Pacific Forum of National Human Rights Institutions observed that he had been impressed with the ability of the AFP to operate on the ground in the Solomon Islands.⁵²

Status of the Enhanced Cooperation Program

According to the DFAT website:

A possible revised package of policing assistance to support reform and improve the effectiveness of the Royal PNG Constabulary is under consideration.⁵³

The Committee was advised by the Assistant Commissioner that the matter is the subject of ‘ongoing government-to-government discussions.’⁵⁴

Criticisms of RAMSI

In the course of the inquiry, some criticisms of RAMSI were brought to the Committee’s attention. ACPACS suggested that the RAMSI intervention is characterised by a donor-recipient mentality rather than being a true partnership, and that Australia needs to be more ‘cognisant of Melanesian values.’⁵⁵ Dr Brown said:

It is about talking with people …⁵⁶

Oxfam expressed similar sentiments, concerned that the Solomon Islands bureaucracy was being marginalised rather than strengthened by a reporting structure where Australian advisors are put in line positions and required to report back to an Australian bureaucracy rather than the Solomon Islands Government.⁵⁷

The Committee noted that the terms of the RAMSI intervention were agreed to by the Solomon Islands Government and this approach was perhaps an alternative to previous approaches in the Solomon Islands that had not worked.⁵⁸ That said, the Committee wished to learn more about the review processes in train and the extent to which they were genuinely consultative.

Reviews

DFAT informed the Committee that it welcomed the two review processes set up by the Pacific Islands Forum: the forum troika scheduled to meet on 12 February 2007 to discuss current issues, and a review with terms of reference [at that time] yet to be agreed to by the Solomon Islands. DFAT stated that:

We think that there is every benefit for RAMSI to be reviewed— RAMSI has got a good story to tell—and for the broader forum membership to be aware of the issues that RAMSI is currently working on.⁵⁹

As of 22 June 2007 the Pacific Islands Forum Task Force set up to review RAMSI had completed its second phase of consultations. In a press release, the Task Force co-leaders commented on the level of interest of and contributions by stakeholders:

Without prejudicing our report, it is no secret that there is overwhelming support for RAMSI to remain in Solomon Islands as it still has important work to do in the country. We will be considering a number of suggestions put to us as to how RAMSI and the Solomon Islands Government can further enhance their effectiveness as partners working together in such areas as law and order, justice, the economy and capacity building.⁶⁰

Subsequent to the feedback, Pacific representation has been boosted:

We are encouraged by the goodwill shown recently through such actions as appointing a Solomon Islands Government Special Envoy to RAMSI, the demarcation between the development component of RAMSI and AusAID-funded projects and the appointment of the Pacific Island Forum's Representative to Solomon Islands.⁶¹

Department of Defence

In 1973 the Department of Defence established a Defence Cooperation Program with Fiji. The program has since expanded to include 12 countries in the region. Its mandate is to develop security related capabilities:

Working with regional security forces and their defence organisations to build their capacity to contribute to their own national security and also to regional stability and security.⁶²

In the last ten years, Defence’s budget in the Pacific region has fluctuated between $30-50 million per annum, with the majority of funds being directed towards PNG, by some margin.  In 2006-2007 Defence will spend $46 million.  Sixty-six ADF personnel are based in the Pacific and 148 Pacific region defence force members are being trained in Australia.⁶³

Patrol Boat Program

According to Defence, the Patrol Boat Program (PBP), which has delivered 22 boats to surrounding nations, is the centrepiece of activities in the Pacific.  The primary focus is helping Pacific nations to monitor their exclusive economic zones and counter illegal fishing, and increasingly the capacity to combat transnational crime.  The boats are also used for national tasks such as search and rescue operations, disaster relief, quarantine and policing tasks, and collecting ballot boxes during election periods.⁶⁴ Through life support arrangements include: crew training; in-country Royal Australian Navy (RAN) maritime surveillance advisors and technical advisors; continuing maintenance support; and in some cases, subsidies for the PBP’s operating costs.⁶⁵

Other assistance

There are other means by which Defence builds capacity with regional defence forces including conducting extensive training programs in technical, military and governance skills, holding bilateral (with PNG) and also multilateral exercises. In addition, there is a strong focus on small arms security.⁶⁶ See Chapter 6 for further detail on the way that Defence fosters professional linkages, and seeks to control small arms in the region.

At the hearing, Defence pointed to some recent ‘success stories’, including:

• downsizing the PNG Defence Force from 3, 300 to a more sustainable level of 2, 000 personnel; and
  
  
• helping the PNG Defence organisation to produce its first annual report in 15 years as well as a 5-year Corporate Plan.⁶⁷

Aid effectiveness

The Committee wished to learn how Defence measures the effectiveness of its engagement and contributions.  The Department said that Defence activities are by their nature fairly measurable:

When we conduct training programs, for example, members either pass or fail the skills that we are trying to impart … We have [in-country] maritime advisors that ensure that boat patrols take place and that the target—about 50 patrols per year—is achieved … the advisors [also] ensure that the vessels continue to be maintained and remain seaworthy.⁶⁸

Illegal fishing

The Committee asked Defence to expand on the extent to which the PBP capability was sufficient to combat the illegal fishing problem in the Pacific.⁶⁹

Defence responded that:

The PBP represents a considerable capability and deterrent to illegal and predatory fishing practices, but [the boats] should not be considered a total solution.⁷⁰

Defence said that while ‘many Pacific nations are achieving very good results’ there remain significant impediments to doing better.  For instance, each patrol boat had to cover vast areas—nearly 1 million square kilometres per vessel. Also, while aerial maritime surveillance can cover greater area than surface vessels, most Pacific countries do not have their own aerial surveillance capability and have to rely on support from military aircraft from Australia, NZ and France.⁷¹

Defence outlined its efforts to improve the program's effectiveness in these regards:

• encouraging Fisheries Forum Agency members to sign Niue Treaty Subsidiary Agreements to allow their vessels to patrol within each others exclusive economic zones and, if necessary, apprehend illegal fishing vessels; and
  
  
• posting a RAN officer to the Pacific Islands Forum Fisheries Agency, whose role includes coordinating aerial support to regional operations.⁷²

Regional cooperation

At the hearing Defence outlined the goodwill that exists between national defence organisations in the Pacific region. Defence said that, despite challenges with RAMSI:

The fact that we were able to work with regional countries to bring together a regional force to assist our neighbours says a lot about the training that we have done over the period with the military forces.⁷³

Defence acknowledged the contributions of the PNGDF to the RAMSI mission:

The discipline and the professionalism that they have displayed has been terrific.⁷⁴

Defence indicated that it had a good working relationship with both the NZ Defence Force and the Tongan Defence Force when troops were deployed to stabilise the situation in Nuku’alofa.⁷⁵

The Department expanded on the extent of cooperation with New Zealand – Australia's ‘first port of call’ in the region:

In our recent deployments with RAMSI we teamed with NZ as lead and deputy lead of the military component of the mission. In Tonga we teamed together again … but switched the lead.

Defence went on to explain that NZ officers are integrated into Australia’s joint operations command, where the military operations are planned, there are numerous working groups that meet throughout the year and the respective defence attaché staff in the countries in the Pacific also have close working relationships.⁷⁶

Defence also noted the degree of cooperation that Australia has with France and the United States in respect of the Pacific.⁷⁷