High Court challenge to Timor Gap Treaty

August 17, 1994

High Court challenge to Timor Gap Treaty

By Jon Land

A High Court hearing on the legality of the Timor Gap Treaty took place in Canberra on August 9-10. If successful, the outcome will have a major impact on Australia's relations with Indonesia and the East Timorese' struggle for independence.

Plaintiffs for the case, Jose Ramos Horta, Jose Gusmao and Abel Gutteres from the National Council of Maubere Resistance (CNRM), submitted the challenge in June 1993. They contest that Australia's signing of the Timor Gap Treaty with Indonesia contravenes international law and the constitutional obligation of Australia to abide by such laws. They also argue that, in signing the treaty, the government had gone beyond the range of its external affairs power. The United Nations does not recognise the Indonesia's occupation of East Timor.

"[The Australian government] claim they acted on the basis of the federal government's external powers to enter into treaties with other countries, and that since Australia had recognised East Timor as part of Indonesia, it was not violating international obligations," Horta told Green Left

"Our councillors are arguing that this treaty is illegal — that the Australian government has no right to enter into a treaty which is in violation of these international obligations.

"If the court was to rule in our favour, it will throw into question the Australia's foreign policy in relation to Indonesia and East Timor. Australia would have to de-recognise Indonesia's annexation of East Timor." Horta said that regardless of the outcome, "the High Court challenge will help the people of Australia understand the nature of the problem of East Timor and Australia's involvement".

On the first day of the hearing, the legal representative for the challenge, Ron Casson QC, told the court that "the purpose of the external affairs power is for Australia to engage in international relations as a lawful and legitimate player on the international stage, not as an international outlaw".

The federal government has called for the challenge to be scrapped. Gavan Smith QC, the federal solicitor general, argued that Australia's foreign policy could only be decided by the government of the day, and that the courts were not the place to determine whether any part of foreign policy contravened international law.

A final decision from the High Court on the validity of the case may not be reached until April next year. Portugal began proceedings in the International Court of Jurists in February 1991 against Australia over the Timor Gap Treaty (Indonesia does not accept ICJ jurisdiction) which will pass judgment in early 1995.

East Timor solidarity groups are stepping up their campaign in support of independence for East Timor and against the growing military ties between Australia and Indonesia. Wendy Robertson, spokesperson for the radical youth group Resistance said that "more and more people, especially young people, are demanding that the Australian government stop supporting Indonesia's illegal and violent occupation of East Timor".

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