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The Hon Peter Garrett AM MP
Minister for Environment Protection, Heritage and the Arts

The Hon Stephen Smith MP
Minister for Foreign Affairs and Trade

Australia's decision to initiate legal action on Japanese whaling; North Korea; Home Insulation Program

E&OE Transcript
Doorstop interview
Commonwealth Parliamentary Offices, Sydney
28 May 2010

SMITH: The Minister for the Environment, Peter Garrett and I are very pleased to be here this morning.

This morning the Government is announcing that Australia will initiate action in the International Court of Justice seeking to prevent Japanese whaling in the Southern Ocean. The formal application to initiate such proceedings will be lodged in the Hague early next week.

Now, I'd like to invite my colleague Peter Garrett, to outline the diplomatic efforts that have been made within the IWC and when Peter has outlined those efforts and the rationale for our decision, I'll then make some remarks about Japan, our relationship with Japan and my discussions with Foreign Minister Okada about this matter.

So Peter, over to you.

GARRETT: Look thanks. Thank you Stephen. We want to see an end to whales being killed in the name of science in the Southern Ocean and today's announcement of legal action shows that the Government is taking the necessary steps to bring to an end, a permanent end, to whaling in the Southern Ocean.

This decision is one that has been taken on the back of significant diplomatic activity, both through ministers here in Australian and through the IWC as well. And it comes on the back of a series of actions that the Government committed to in terms of ending so-called “scientific” whaling.

When we came into office we said we would do a number of things and today we take that step which we identified as one we would consider, the step of taking legal action. We said we'd monitor the whaling activities in the Southern Ocean and we did that.

We said that we would appoint a whale envoy to conduct intense negotiations and Mr Holloway has done that over a period of time. We said that we'd bring a conservation agenda into the International Whaling Commission with a series of proposals which we think better suit both the conservation of whales and the activities of those countries who want to see whales protected and we did that.

We've embarked on the largest non-lethal whale research partnership in the world, the Southern Ocean Research Partnership and in January of this year, in New Zealand, I launched that partnership and other likeminded nations have joined us.

Today we take the next step which is to initiate legal action in the International Court of Justice. Both countries accept that the International Court of Justice is the appropriate tribunal for these matters to be considered.

This comes on top of the intense negotiations that have been underway through the support group process that the International Whaling Commissioner Cristian Maquieira has been seen through, our view is that there has been no substantial consideration of those issues which we think go to the very heart of Japan's obligations under International Law for the protection of these species and on that basis, the decision initiate legal action has been taken.

SMITH: Thanks very much, Peter. The question of whaling of course has been a disagreement between Australia and Japan for a number of years. I have spoken on a number of occasions with my Japanese counterparts in the past.

Foreign Minister Okada visited Australia, Sydney and Perth, earlier this year. When we met formally in Perth, we had a lengthy conversation about whaling and we agreed and committed both Australia and Japan, to the following approach: that if in the end we could not resolve our disagreement diplomatically, either bilaterally or through the International Whaling Commission; and if Australia determined to initiate legal proceedings, we would not allow such legal action to disturb the relationship.

We have with Japan a comprehensive, economic, strategic and security relationship and the agreement between Australia and Japan is that we will treat this matter in a calm, responsible, mature way. Both nations adhere to the jurisdiction of the International Court of Justice and we will treat this matter effectively as an independent legal arbitration of a disagreement between friends.

Defence Minister Faulkner and I were in Japan last week for the so called 2+2 meeting, the meeting between Australia and Japan's Foreign and Defence Ministers. And the most important security, strategic and defence formal meeting that we have with Japan.

In the course of that visit again, Foreign Minister Okada and I spoke. And we again resolved that should Australia initiate legal action that we would not allow that to disturb the comprehensive relationship that we have.

Japan has been Australia's strongest supporter and one of our closest partners in the Asia Pacific for many years. And our relationship continues to grow. And whilst we will allow this matter to be arbitrated by the independent International Court of Justice, we will continue with all aspects of our relationship.

Just one final point. In Japan I also undertook to Foreign Minister Okada that if the Government decided to initiate legal proceedings that I would advise him of that in advance of the publication or the announcement of our decision. I did that last night and we again resolved our commitment that despite this matter now effectively being legally arbitrated, we would not allow it to disturb the comprehensive nature of our relationship.

Because of our close partnership and close friendship with our near neighbour, New Zealand, I also took the opportunity late last night of formally advising my New Zealand counterpart, Foreign Minister McCully of our decision and our intention to announce it today.

Peter and I are happy to respond to your questions.

QUESTION: Mr Smith or Mr Garrett, I think it was only a couple of months ago that the Government said they would reconsider this position in November, why has it been brought forward, why now?

SMITH: Cabinet has considered this matter on a number of occasions, indeed regularly over the last couple of years. And we've had a number of discussions in the most recent period. Yesterday the Cabinet met in the afternoon. Cabinet received a report from me on my discussions with Foreign Minister Okada, received a report from Peter on the efforts that were being made through the IWC processes.

On the basis of those reports and our previous consideration the Cabinet came to the conclusion that we should initiate legal action and we should announce it today. We have said consistently that if we came to the conclusion that our objectives could not be met by diplomatic means whether bilateral or multilateral diplomatic efforts through the IWC then we always reserve the right to initiate legal proceedings and that's what we've announced today.

The formal process will commence into Hague early next week.

QUESTION: But taking this action before the International Whaling Commission meeting, does this mean that you were concerned that the compromised deal that's being negotiated as we speak is going to get through, therefore you felt you had to take this action pre the Whaling Commission?

GARRETT: The decision to initiate this action is taken on the basis that the negotiations and the processes that had been identified by the Government in terms of seeking from Japan, some acknowledgement and agreement to pursue these issues in a way in which we mutually agreed, hasn't taken place.

As the Minister says, it's a disagreement between friends but it is a disagreement which we now believe needs to be properly resolved in the appropriate forum. My expectation is that we will continue to negotiate the broader range of measures around whale conservation and reform of the IWC in a run up to the IWC.

My expectation is that that will be an extremely intense and difficult negotiation. But it's clear to us that this was the appropriate time to lodge that action on the basis of what we previously said. We said, if we reach this point we would take legal action. Today we've reached the point and today we do take the action.

QUESTION: And initiate that next week in The Hague, how long will that process take before you can get an injunction?

GARRETT: Well, that's a matter yet to be determined. What we want to do is lodge the papers. There'll be oral pleadings and we don't propose to recite any other details or aspects of the case or our tactics at this point in time.

SMITH: Can I just add to that? I think when the prospect of legal proceedings initiated by Australia first came to public prominence there was concern expressed that this would disturb the relationship between Australia and Japan. My Japanese Foreign Ministerial colleagues and now Foreign Minister Okada and I have had to manage this and work this through over the course of the last two years.

What I think has occurred in the last six months or so has been a maturing and a reflection on the fact that just because we're going to court doesn't have to disturb the fundamentals of our comprehensive relationship.

And so I think the discussions that I had with Foreign Minister Okada both in Perth in February and Japan last week, have been very successful in both of us coming to a calm and mature view of this matter.

Secondly, on legal tactics or legal strategy, we will, as Peter and I have said, commence the initiation, or we will initiate the proceedings next week in The Hague. That starts the process. And then we're not proposing in advance of the course of the proceedings to flag or indicate what our legal approach, legal tactics or legal strategy might be.

We are now essentially into a legal case and we're not proposing to flag in advance how we might conduct that for all of the obvious reasons so far as a legal case is concerned.

QUESTION: What did New Zealand say last night? Were they supportive of Australia's actions?

SMITH: That's a matter for Foreign Minister McCully to articulate the New Zealand view. He was firstly pleased that I had given him the courtesy of letting him know. Our decision was, I think, not a surprise to him and New Zealand in the course of the day will indicate their response.

We have been working very closely with New Zealand on this matter, not just in the recent period, Peter with his colleague and me with Foreign Minister McCully, but historically. Australia and New Zealand have both been very active in the IWC and very active on issues in the Great Southern Ocean.

So Foreign Minister McCully welcomed the fact that I had given him advance notice. But I'll leave it to him to indicate New Zealand's position.


SMITH: Well just as it would be unwise to flag in advance our tactics or our strategy, I'm not proposing to get into any of the detail of the legal advice that we have.

Consistent with traditions of all Australian Governments we're not proposing to make public the legal advice that we have and we're certainly not proposing to make it public at the beginning of a process that we have commenced.

In a court case there can be no guarantees but we are confident that the decision we have made is an appropriate one to seek to achieve our objective which is to end Japanese whaling in the Southern Ocean.

QUESTION: Foreign Minister forgive me for being cynical, but the deadline was initially set by your own government as November…

SMITH: Well that's not right. That is not right.

QUESTION: …but they said that they would reconsider it in November.

SMITH: No, what we said consistently, whether it was Peter, whether it was I, the Attorney-General or the Prime Minister, is that if and when we came to a conclusion that our diplomatic efforts either bilateral efforts with Japan or our multilateral efforts through the IWC, if and when we came to a conclusion that we didn't believe those efforts would see us achieve our objective, which in the first instance is the ending of whaling, ending of Japanese whaling in the Southern Ocean, then we reserve the right to initiate legal proceedings.

QUESTION: So nothing to do with the election?

SMITH: We have said consistently if we come to the conclusion that our diplomatic efforts will not achieve our objective, we reserve the right to initiate legal proceedings and that's what we've done.

QUESTION: Mr Garrett on the compromise with [indistinct] are you conceding that it does have a lot of momentum and it has a number of European and [indistinct] governments supporting that and it could actually get through?

Do you think it's almost sealed and delivered — to be delivered — in Morocco?

GARRETT: I think we've got a way to go in relation to Morocco.

Can I just add to what Stephen Smith has said in relation to the approach that we've taken as a Government though; we were very clear when we came into office that we were going to do a number of things and each one of those things we've now done.

So we've ticked every box in terms of opposing so-called scientific whaling in the Southern Ocean as we said we would.

But we've also done it in the appropriate order, in other words, we wanted to go to the Southern Ocean for monitoring and surveillance. The first time that's ever been done by an Australian government.

This Government took that action. We wanted to make sure that we had intensive and serious diplomatic negotiations including with the ministers and a whaling envoy, the first time this Government took that step.

We wanted to take an alternative proposal to the IWC and invite other countries to join us in saving whales and we did that and we said that if we didn't make substantial progress on the issue of so called scientific whaling in the Southern Ocean, we'd initiate legal action and today we've done that.

So there's a consistent order, which we laid out when we came into government, which we're fulfilling.

Now on the broader question of likely compromises or otherwise at the IWC, I'll just make the following point; there is only one country that has put an alternative proposal into the IWC to protect the whales of the Southern Ocean and to make sure that this organisation has a conservation focus and that's Australia.

There has been good support for the general proposals that we put, both from countries in Latin America and from some European countries, but it is going to be a very tough negotiation, we're well aware of that, but we'll enter into it in good faith and we'll work productively with all like mindeds and other countries in that forum.

QUESTION: And are we really, though, a very much a lone voice though?

GARRETT: I don't believe so, not for one moment. I think what we've actually done is taken a leadership role and the question that the IWC has got to satisfy for itself is whether not only will it deal with questions to go to conservation management plans and the question of the scientific committee and other technical issues, but whether or not it's going to set a mandate for itself to be a twenty-first century conservation organisation.

Because that's Australia's vision, that's what our people want to see and there are many others around the world that want to see the same thing too.

QUESTION: Are you going to be lobbying other countries though like any other meeting. Have you lobbied any other European countries or African nations to support Australia's proposal to be taken to Morocco?

GARRETT: Well we've circulated our proposal and I've had intensive discussions with a number of countries of ministers and senior officials, drawing their attention to what we've put forward and seeking their support and we'll continue to do that.

QUESTION: Much support though?

GARRETT: Well we've received good indications of support to the generality of what we've put. The details are still yet to be worked through.

QUESTION: Can I ask you about Korea? Are you worried about the situation and how would you describe it and…

SMITH: Well as I indicated to the House yesterday we are very concerned about North Korea's conduct and the implications that that has for peace and security on the Korean Peninsula, for peace and security in North Asia and peace and security in our region generally.

We have been concerned for some time about North Korea's nuclear program, its missile and its nuclear tests. We've reflected that by our very strong support for United Nations Security Council Resolutions on North Korea's program, also our own autonomous sanctions and our very strong support of the six party talks which is the international institutions being used to try and bring North Korea to account.

The most recent destabilisation on the Peninsula of course has been the sinking of the South Korean Corvette, the Cheonan. We participated in the international investigation which determined that the sinking of the Cheonan was as a result of a North Korean torpedo.

We continue to urge North Korea to desist from its belligerent activity. We continue to work very closely with South Korea, Japan, the United States and others to bring this matter before the Security Council to firstly get an admonition, a condemnation of North Korea's conduct, but we're very much, as I indicated in the House yesterday and previously, we very much see the need for restraint.

We do not want this matter to escalate into any further incidents or conflict and we have been highly supportive of the Republic of Korea's restraint in the face of major provocation.

QUESTION: But Mr Smith we've heard overnight that North Korea has scrapped its [indistinct] agreement with South Korea. Isn't that a significant escalation?

I mean hasn't it now gone beyond sanctions?

SMITH: Firstly I've made the point that we continue to be very concerned about North Korea's belligerent activities. That includes the matter that you have referred to, but it includes a range of other matters, including the sinking of the Cheonan, but also including its nuclear testing and its missile testing program.

We believe the appropriate course of conduct is for the Security Council to reflect the international community's condemnation of this conduct, but we also need to ensure that these matters don't escalate.

We also need to ensure that we don't see further examples or incidents of conflict in the Korean Peninsula. That is very important to peace and security in the Korean Peninsula and in North Asia, but it's also very important to our region generally.

QUESTION: Mr Garrett can I just ask you one question just quickly on the insulation measures. There's still one measure that hasn't been released.

Why can't you release it and if you're worried about certain elements of the letter just black them out and release this last letter?

GARRETT: The Prime Minister made clear in his statement to the Parliament that the issues that had been addressed in that letter he had made public, but that there were Cabinet and confidential issues around its overall release and I understand that Senator Birmingham has indicated in the Senate and the estimates meetings to Senator Wong that he agrees with the decision that's been made.

It's consistent with the way other governments have dealt with this issue.

All of the matters that are relevant to this program are on the public record and there's no new information that has originated as a consequence of the release of that correspondence and the Prime Minister's statement dealt with that in some detail in the House yesterday.

QUESTION: But why didn't Matthew Fuller's get mentioned in one of your letters. This was written after this installer had been killed on the job. Why didn't it rate a mention?

GARRETT: Those letters were letters which were worked up over a period of time and dealt with the details of program changes which had a focus on a number of matters including safety.

And as you will have seen from the report from Alan Hawke, my actions as a Minister were vindicated by Mr Hawke who said that I acted in a timely and in an appropriate fashion and the correspondence that was released yesterday morning to the Senate confirms what Mr Hawke had said and confirms what I had said at every step of the way in relation to this program.

QUESTION: Do you not feel as though the Prime Minister ignored your pleas to scrap the program a little earlier or the safety concerns that you'd raised?

GARRETT: Look the correspondence shows very clearly that we put in place a series of measures which were judged necessary at the time and were proper and it also shows that the Prime Minister's response correspondence to that confirmed that that was the right course of action.

QUESTION: But don't you see that just by leaving one last letter out and not being able to release that one final letter, it looks like you have something to hide?

GARRETT: Well look the Opposition tried to make something out of this but I think Senator Birmingham is absolutely correct; there is a propriety that attaches to the release of these documents and because the Prime Minister has related some of the matters specific to that letter already in the public domain and into the Parliament, it's appropriate that that letter contains its Cabinet in-confidence quality, but what's been determined in that letter and the subsequent actions were made public in the release of the other three letters.

QUESTION: Given all the correspondence we've now seen and the deaths that we've had, with hindsight do you think that the Prime Minister should have shut down the scheme when you first — when these problems were first raised when you first wrote to him?

GARRETT: What I can say — no to that — is that we took the appropriate actions at every step of the way and the tabling of these letters showed that I did that as does the conclusions that were reached by Mr Hawke in his review.

This is a matter which we took very seriously. We made the decisions on the basis of advice that was in front of us, me as a Minister and the Government and the tabling of those letters confirms those courses of action.

QUESTION: But there were three other deaths after those — the letters that were released yesterday — there were three deaths in following. Why after say the second death was something not done to scrap the program?

GARRETT: Well I invite you to go back and look closely at the statements I've made in the Parliament, look closely at the steps that were taken and the different courses of particular events and responses and reflect upon them.

And I invite you to consider that the Government placed the highest priority on safety and I also invite you to consider that there are still matters yet to be determined by the appropriate inquiries and investigations in relation to those matters and it is not appropriate for further speculation about those issues to be canvassed in the public domain.

I have been very responsible in my exercise and my duties as a Minister and I've also been very responsible as a public figure to speak about these things appropriately.

What we can say is that all the information that has been made public in the tabling of those letters is information that confirms that the Government took the appropriate steps and actions through the course of the program.


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