On 8 February 2007, the HRLRC made a submission to the inquiry by Federal Parliament’s Joint Standing Committee on Treaties into the recently signed security treaty with Indonesia. Known as the ‘Lombok Treaty’ and tabled on 6 December 2006, the Treaty provides a framework for security cooperation between Australia and Indonesia, including provisions on defence, law enforcement, counter-terrorism, intelligence, maritime security, aviation safety and security, proliferation of weapons of mass destruction, emergency cooperation and cooperation in international organisations on security-related issues.
Australia and Indonesia have each ratified key international human rights instruments, including in particular the ICCPR, ICESCR, CEDAW, CERD, CAT and CROC. In May 2006, Indonesia was elected to be a member of the new UN Human Rights Council. Despite these ostensible commitments to human rights and the obvious implications of the areas of cooperation contemplated by the Treaty on human rights and freedoms, the Treaty is devoid of reference or commitment to human rights.
The HRLRC’s submission notes that the potential consequences of the absence of human rights protection are evidenced by the current plight of the so called ‘Bali Nine’. All nine members of the Bali Nine were arrested in Bali for alleged involvement in heroin trafficking to Australia. The arrests resulted from action taken by the Indonesian National Police (‘INP’) in consequence of intelligence information provided to the INP by members of the Australian Federal Police (‘AFP’). Presently, six members of the Bali Nine face execution as a result of their respective convictions for drug trafficking offences. Under intelligence sharing arrangements contemplated by the Lombok Treaty, as with the present arrangements between the AFP and international law enforcement agencies; there are no safeguards to prevent the sharing of intelligence, even if the imposition of the death penalty is a predictable consequence of any charges laid as a result. This is in contrast to related treaties between Australia and Indonesia such as the Mutual Assistance Treaty which includes grounds for refusing a request for mutual assistance where the request relates to the prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed.
The HRLRC submitted that the Treaty’s formalisation of intelligence sharing arrangements between Australia and Indonesia may result in breaches of Australia’s human rights obligations, particularly in respect of the right to life. This concern is amplified in light of recent comments by Indonesia’s Constitutional Court in response to an application by two members of the Bali Nine, which stated that constitutional rights do not apply to foreign nationals.
The Treaty also contains a worrying emphasis upon principles of sovereignty, territorial integrity, and non-interference in the internal affairs of each country to the apparent detriment of human rights protections. This is particularly evident in Clause 3 of Article 2 of the Treaty which states:
“The Parties, consistent with their respective domestic laws and international obligations, shall not in any manner support or participate in activities by any person or entity which constitutes a threat to the stability, sovereignty or territorial integrity of the other Party, including by those who seek to use its territory for encouraging or committing such activities, including separatism, in the territory of the other Party.”
Many interest groups have expressed concern that Clause 3 may be specifically aimed at vulnerable communities within Indonesia which have been subjected to human rights abuses in the past; for example, the pro-West Papuan independence groups. The clause may also be in breach of the freedoms of expression and association enshrined in the ICCPR and domestic Australian legislation, and arguably in breach of the implied freedom of political communication which exists under the Australian Constitution.
The HRLRC’s submission makes the following four key recommendations to the inquiry:
- the Treaty should include preambular recognition that Australia and Indonesia are signatories to the ICCPR and ICESCR and, consistent with each country’s obligations under those covenants and the UN Charter, the Treaty will be interpreted so as to promote universal respect for, and observance of, human rights and freedoms;
- the Treaty should include a fundamental principals that, consistent with the UN Charter, Australia and Indonesia will promote, encourage and respect human rights and fundamental freedoms without distinction as to race, sex, language or religion;
- the Treaty should be amended to include an article that provides for circumstances in which security cooperation may be refused where the human rights of an individual or individuals are threatened; and
- that Clause 3 of Article 2 of the Treaty should be deleted.
Copies of submissions and more information on the Committee’s inquiry, including the treaty text and national interest analysis, is available on the Committee’s website at www.aph.gov.au/house/committee/jsct/6december2006/index.htm.
