The Legal Office comprises two branches within the International Organisations and Legal Division. It is structured to allow concentrated attention to priority issues in the fields of international trade and economic law, treaties, international criminal law, environmental law, international organisations and international litigation, sea law and ocean policy, defence, outer space and nuclear law, human rights and social law, administrative law, and matters relating to refugees, immigration and asylum.
Strategies for achieving these goals include maintenance, at a high level of expertise and responsiveness, of the capacity to advise on international legal issues; promotion of the adoption of multilateral conventions and the conclusion of bilateral treaties and arrangements furthering Australia’s interests; encouragement of universal adherence to the Law of the Sea convention; and negotiation of effective agreements on fisheries, maritime boundary delimitation, extradition, mutual legal assistance in criminal matters and investment protection.
Achievement of the sub-program objectives has been measured by the following criteria:
Law of the Sea Convention
The Department continued to play an influential role in the informal consultations held by the United Nations Secretary-General aimed at resolving differences between industrialised and developing countries on the deep seabed mining regime contained in Part XI of the 1982 United Nations Law of the Sea Convention (‘the convention’). The imminent entry into force of the convention for the sixty ratifying parties on 16 November 1994 gave added impetus to these consultations. At the final round of the consultations, held in New York 31 May-4 June 1994, participating delegations concluded the text of an agreement which in effect amends Part XI thereby resolving the outstanding differences on the convention. The Australian delegation played a key role in the drafting of the agreement and in helping to bring the major industrial powers around to acceptance of it. The agreement was adopted for a resumed session of the General Assembly on 29 July 1994.
During negotiations on the convention, which took place from 1973 to 1982, Australia’s overriding interest was the adoption of a widely accepted and comprehensive convention which met Australia’s interests. Australia is one of the major beneficiaries of the convention. By reason of Australia’s lengthy coastline and broad continental margin, the convention accords Australia large areas of exclusive economic zone and continental shelf (and consequently significant resource benefits). It also guarantees rights of passage for Australian vessels and provides a significant basis for marine environment protection measures. In addition, the agreement negotiated in the United Nations Secretary-General’s informal consultations meets Australia’s concerns on the deep seabed mining regime. The final text of the section on production policies applies the anti-subsidisation code of the General Agreement on Tariffs and Trade/World Trade Organization, thereby ensuring fair competition for the Australian land-based mining industry. This section, drafted by Australia, represents the achievement of one of Australia’s major objectives in the informal consultation process.
Following the necessary consultations with the States, industry and interest groups, the government decided Australia should sign the agreement after its adoption by the United Nations General Assembly and subsequently should ratify the convention (as amended by the agreement) prior to its entry into force on 16 November 1994.
The Department worked with the Attorney-General’s Department to complete the final stages of implementation of the convention. With the passing of the Maritime Legislation Amendment Act 1994, the Government completed the process of bringing Australia’s maritime zones into line with those to which it is entitled under international law (as reflected in the convention). The legislation makes changes in four areas: the exclusive economic zone, the continental shelf, the contiguous zone and the basis for drawing the territorial sea baseline. Proclamations regarding the outer limits of the zones will be made during the course of 1994.
Fisheries
The Department was involved with the Department of Primary Industries and Energy and the Australian Fisheries Management Authority in bilateral and multilateral fisheries negotiations. Achievements during the year included the entry into force of the Convention for the Conservation of Southern Bluefin Tuna and the first meeting of the Commission for the Conservation of Southern Bluefin Tuna; conclusion of the Food and Agriculture Organisation (FAO) Agreement to Promote Compliance with Internationally Agreed Conservation and Management Measures by Fishing Vessels on the High Seas which establishes basic obligations of flag states to control the activities of their vessels; and adoption by the 27th Session of the FAO Conference of the Agreement for the Establishment of the Indian Ocean Tuna Commission.
Work to address the problems of over-exploitation and unregulated high seas fishing in the United Nations Inter-Governmental Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks continued as did activity in the South Pacific Forum Fisheries Agency to improve compliance by foreign fishing vessels with minimum terms and conditions of access and registration on the regional register.
Negotiations began in the FAO to develop a code of conduct on responsible fishing applicable to fishing operations on the high seas and in exclusive economic zones. Efforts continued in all international fora to ensure compliance with the United Nations General Assembly resolution which originally called for cessation of large-scale pelagic driftnet fishing in all oceans.
International Whaling Commission
In a landmark decision, the International Whaling Commission (IWC) decided on 26 May 1994 to establish a Southern Ocean whale sanctuary. The sanctuary covers some 30% of the world’s oceans and contains about 90% of the world’s whales. It includes almost all the migration routes of most of the great whales in Australia’s region. It reinforces the 1982 moratorium on commercial whaling. Australia was a firm supporter of the sanctuary and hosted a meeting on Norfolk Island in February 1994 at which the proposal for the sanctuary gained vital momentum.
Australia-Indonesia maritime boundary delimitation
Australia and Indonesia held a further round of negotiations to progress the delimitation of maritime boundaries. Negotiations will continue.
The Legal Office took a leading role in negotiating bilateral investment promotion and protection agreements. For the first time, negotiations took place with Latin American countries (Argentina and Chile), while agreements were signed during the year with the Czech Republic, Hong Kong and Laos. Australia now has bilateral investment promotion and protection agreements in force with nine countries (China, the Czech Republic, Hong Kong, Hungary, Indonesia, Papua New Guinea, Poland, Romania and Vietnam) and is continuing to expand the network of these agreements. The Legal Office also participated actively in the discussions on investment issues in the negotiations on the European Energy Charter Treaty.
In conjunction with the Attorney-General’s Department, legal advice and support was provided on the settlement of the aviation dispute between Australia and the United States, including on formal amendments to the bilateral aviation agreement which were concluded on 22 February 1994 as part of the settlement package.
Legal aspects of the conclusion of the Uruguay Round and the adoption of the World Trade Organization Agreement were also the subject of advice from the Legal Office. That work will continue through 1994- 95.
The Legal Office continued its function of providing support on a wide range of subjects relating to international trade, including agreements on bilateral trade, civil aviation and double taxation, and issues relating to science and technology, intellectual property, customs and quarantine and telecommunications. The support given ranged from the provision of oral and written advice to representation on Australian delegations in negotiations on these subjects. During the year, the International Trade and Economic Law Group took on the function of providing legal advice and drafting assistance to AIDAB on treaties and other international instruments relating to Australia’s international aid program.
The Human Rights and Social Law Unit took the lead in governmental consideration of a number of indigenous peoples’ issues, including the draft Declaration on the Rights of Indigenous People and the protection of the cultural and intellectual property of indigenous peoples.
The unit has had a significant involvement in the area of protection of children’s rights. It co-ordinated the Department’s input into Parliament’s consideration of the Crimes (Child Sex Tourism) Act (which included an appearance before a parliamentary committee) and was closely involved in the promotion of consideration of an international Protocol aimed at the elimination of child sex tourism world-wide. It also co-ordinated representations to regional states regarding accession to the Hague Convention on International Child Abduction.
The unit has had a significant role in governmental consideration of the operation of the procedures regarding individual complaints to United Nations human rights bodies. It has also contributed to the development of Australia’s national reports to those bodies.
The unit also provided legal advice and carried out treaty action across a wide range of agreements and international negotiations covering human rights, refugees, cultural relations (including films and sport), education, health and social security, as well as providing a legal input for the development of departmental positions in many of these areas.
The Environmental Law Unit contributed to the development of Australian policy across a range of international environmental issues through the provision of legal advice to this and other departments and agencies. Key issues arising from the 1992 United Nations Conference on Environment and Development are the Climate Change and Biological Diversity Conventions, both of which have now come into force, the recently adopted Desertification Convention, and ‘Agenda 21’, the global action plan for sustainable development.
The unit provided advice on a large number of other bilateral arrangements, including memoranda of understanding with countries such as Japan, Germany and Singapore, and multilateral agreements, including the Convention on International Trade in Endangered Species, the Montreal Protocol on Substances that Deplete the Ozone Layer, and the Basel Convention on the Transboundary Movements of Hazardous Wastes. The Department is the lead agency for the Montreal Protocol. Australia ratified the Copenhagen Amendments to it in 1993 and is actively engaged in issues such as review of technology transfer, the multilateral fund and controls established by the Protocol. In relation to the Basel Convention, Australia chaired the second meeting of the Parties and heads the Bureau of States which oversees implementation of the Convention. Australia is also participating in the ongoing negotiation of a South Pacific Regional Convention on Hazardous Wastes.
The Defence, Outer Space and Nuclear Law Unit provided legal advice on a range of complex matters, including international security and defence, disarmament, non-proliferation and nuclear developments and outer space issues. Assistance was provided in the drafting of a series of bilateral and multilateral defence instruments. The unit, in further developing Australian positions for the ongoing negotiations on a civil liability regime for nuclear damage, initiated wide consultations with a view to refining the Australian approach to take account of recent international developments. It also provided extensive legal assistance in support of Australian objectives on issues arising from the tensions relating to the Korean Peninsula. The unit supported the development of the pioneering agreement with Germany to land space capsules in Woomera, which is intended to create new opportunities for the Australian space industry.
Greater public and industry group interest in and concern about Australia’s treaty-making activities was shown during the year. In response, the Government began the publication in the Department’s magazine, Insight, of a schedule of information on multilateral treaties which Australia is either likely to become a party in the future or is currently negotiating. The first schedule was published on 20 June 1994 and subsequent schedules will appear approximately every six months. In addition the Government decided that when the texts of treaties are tabled in Parliament, each treaty would in future be accompanied by an explanatory statement setting out the main provisions of the treaty and the nature of the Government’s actions and commitments in relation to the treaty.
These initiatives enhanced the already substantial amount of information published by the Department on treaties and the Government’s activities in relation to treaties. The Australian Treaty Series, which contains the texts of all treaties which have entered into force for Australia, continued to be published in batches through the year and the annual Select Documents (International Treaties) was also published, with a further volume in preparation.
Summaries of Australian treaty actions, which in effect build on the Australian Treaty List (Australian Treaty Series 1989 No. 38), continued to be maintained by updates in treaty action which appeared monthly in Insight and annually as No. 1 in the Australian Treaty Series. At the end of 1993-94 there were 2223 entries in the Australian Treaty List . The number of head treaties, as amended, in force for Australia at the end of this period was no more than 920. The remaining treaties have either been superseded, replaced, terminated or simply no longer apply to Australia.
Further information on treaty-making activities is contained in the appendices to this report.
Multilateral legal issues
The Department is responsible for advising the Government, client departments and agencies on the law relating to the United Nations and other international organisations and the interpretation of their constituent instruments. Pre-eminent among these instruments is the United Nations Charter, in respect of which legal advice associated with Australia’s responses to the requirements of United Nations peacekeeping has increasingly been in demand. The Legal Office of the Department has provided Australian representation on the Ad Hoc Committee negotiating a convention on the safety of United Nations personnel, which is designed to counter the serious increases in casualty rates among peacekeepers. Extensive work has been done on the implementation and interpretation of mandatory decisions of the Security Council imposing international sanctions regimes, involving amendment of the Charter of the United Nations Act and, where necessary, instructions for the re-drafting of the regulations under which Australia’s sanctions obligations are put into effect.
The Legal Office has been closely concerned with the establishment in The Hague of the International Criminal Tribunal for the Former Yugoslavia, the election to that body of Sir Ninian Stephen, a former Governor-General, and Australian legislation providing for obligations relating to the Tribunal. At the same time, the Australian member of the International Law Commission, James Crawford, has been rapporteur for the drafting of the statute for a permanent International Criminal Court, an item to which we are giving priority attention in the work of the United Nation’s Sixth (or Legal) Committee. Australia’s interest in promoting the peaceful settlement of disputes was further highlighted by the selection of Sir Ninian to chair the first meeting of members of the Permanent Court of Arbitration.
The Department, in cooperation with the Attorney-General’s Department and in continuing recognition of the objectives of the United Nation’s Decade of International Law, has actively promoted the development and teaching of international law through its linkages with domestic and foreign legal organisations, firms, law schools and students, and Australia’s permanent observer status with the Asian- African Legal Consultative Committee.
International litigation
The Legal Office was heavily involved in settling a case commenced in the International Court of Justice (ICJ) in 1989, under which Nauru sought compensation for damage to the island incurred in the mining of phosphate during the period of administration by Australia, New Zealand and the United Kingdom. Further information appears in this report under sub-program 1.4.
The Legal Office continued to work with the Solicitor-General and the Attorney-General’s Department on a second ICJ case, initiated by Portugal in 1991, in which it is alleged that Australia has infringed the rights of the people of East Timor, and of Portugal as administering power for that territory, by entering into the Timor Gap Zone of Cooperation Treaty with Indonesia. Written pleadings in the case are concluded and the oral hearings are expected to commence in early 1995.
Australia also submitted a statement to the ICJ relating to a request to the Court by the World Health Organization for an advisory opinion on the legality of the use of nuclear weapons. The statement argued that the ICJ did not have competence or jurisdiction in the matter.
International criminal law
The International Criminal Law Enforcement Unit provides advice on extradition, mutual assistance in criminal matters and international criminal conventions such as those on narcotics trafficking and terrorism.
The Department continued its work with the Attorney-General’s Department on expanding and upgrading Australia’s network of bilateral treaties on extradition and mutual assistance in criminal matters. Extradition treaties with Chile, Hong Kong and Turkey were signed. A mutual assistance in criminal matters treaty was signed with Ecuador and mutual assistance in criminal matters treaties with Finland and Luxembourg entered into force.
Administrative and domestic legal matters
Advice was provided to the Department on machinery of government, staffing, litigation, freedom of information, passport issue, consular operations, privacy and diplomatic and consular privileges and immunities issues. Coordination of departmental responses to subpoenas and discovery orders relating to departmental documents remained an important and resource-intensive responsibility.
The office assisted in departmental training courses during the year, giving presentations on diplomatic and consular law, administrative law, privacy and the legal aspects of passport issue to minors and issues relating to passport fraud. Training in legal procedures and the provision of ad hoc legal advice to operational areas contributed to the efficiency and fairness of departmental decision-making.
The Department maintained close contact with the Department of Immigration and Ethnic Affairs (DIEA) and the new Refugee Review Tribunal (RRT) to provide timely information on international legal, political, human rights and refugee developments to assist in Australia’s handling of refugee, immigration and asylum-seeker issues. The Department continued to provide advice and support to the RRT during its establishment phase, and carried out its revised role in the DIEA Onshore Refugee Determination (ORD)-formerly Determination of Refugee Status (DORS)-procedures by:
developing to a professional standard country profiles providing refugee-related information on countries from which refugee applicants come for use in the ORD process and by the RRT;
coordinating and producing information on situations overseas relevant to refugee determinations in response to requests from DIEA and the RRT;
developing further contacts with other agencies and NGOs concerned with like issues, for example, participating in the first national Refugee Summit at which Senator Evans gave the keynote address; and
contributing to improved international understanding of refugee, humanitarian and displaced people issues by pursuing diplomatic and policy aspects of these issues with international bodies, including the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR).
The Department assisted DIEA in organising Canberra-based informal regional consultations on illegal migration, at which 17 countries and two international organisations were represented; and in coordinating responses to unauthorised arrivals in Australia.