Support for the Treaty
In its submission, DFAT noted that the Treaty's inherent strength and
effectiveness derives from its 'high level of support from traditional
inhabitants'. It stated, however, that continuing support is 'arguably the Treaty's
most fragile dimension'. In its view, as long as traditional inhabitants regard
the Treaty as upholding and protecting their rights and privileges, it would
remain effective but without that conviction, the Treaty would become 'increasingly
difficult to sustain'.
In this chapter, the committee considers how government departments and
agencies working in the Torres Strait manage community expectations. It is
particularly interested in the level of support for the Treaty and the factors
that have the potential to either undermine or strengthen that support.
Views on the Treaty
DFAT is of the view that the Treaty had 'operated pretty well over time:
that it was very flexible and adaptable'.
The Commonwealth Attorney-General's Department and Queensland Government also
believe that the Treaty works well.
According to Australia's Treaty Liaison Officer, Mr Young, while the Treaty has
overwhelming support, there remain issues and continuing pressures. He told the
We have a lot of work to do to manage what is a complex
treaty and a complex border. We try to do that as effectively as we can. As I
say, there are ongoing management issues that I confront every day—and my
colleagues from other agencies do too—but generally speaking there is support for
the treaty's existence.
Even though government agencies are satisfied with the implementation of
the Treaty, representatives of the local Torres Strait communities identified a
number of problems that, in their view, relate directly to arrangements under
the terms of the Treaty. In this report, the committee has provided detailed
accounts of many of these concerns that relate to specific matters—health, law
and order, the strain on communities' limited resources such as water, illegal
fishing and poaching, biosecurity and border control. In brief, local community
leaders expressed disquiet about:
- unregulated visits by PNG residents, that place 'a silent burden'
on Torres Strait communities through their use of island infrastructure, scarce
resources such as water and health and welfare services;
the number and nature of visits under the provisions of the
Treaty. For example, the TSIRC noted that on many occasions more than 500 PNG
nationals have turned up in a community without prior advice, at times landing
on any part of an island and staying in the community, sometimes for days
before they are noticed by Commonwealth authorities;
- the conduct of some visiting PNG nationals including drunkenness
and threatening behaviour when disputes arise.
The TSIRC noted that it could not express its concerns strongly enough
regarding the security of its people due to the behaviour of PNG nationals,
citing the movement of mentholated spirits from the Torres Strait communities
to PNG; major theft, and PNG nationals walking the streets of communities in the
Torres Strait brandishing weapons (machetes, knives);
- the lack of commitment or the wherewithal by PNG nationals to
support communities in the Torres Strait in their endeavours to maintain
healthy stocks of vulnerable marine species and to promote sustainable
development, citing the failure to observe conservation measures, trading in
protected species or illegal fishing and poaching.
Moreover, the committee heard from local inhabitants of their fears that
changes in climate could exacerbate problems in the region, with the
possibility of inhabitants of villages along the southern PNG border being forced
to seek food, water, shelter or access to land in the Torres Strait.
DFAT acknowledged that 'Abuses of the Treaty's free movement provisions
could lead to tensions between traditional visitors from Papua New Guinea and
Torres Strait Islander communities, and exacerbate pressure on local
infrastructure and resources, thereby eroding support for the Treaty among traditional
Even so, some local leaders believed that government agencies were not
addressing their concerns adequately. For example, the TSIRC asserted that
'Immigration turns a blind eye to the fact that "overstayers" are on
the island'. It its view, this inaction 'makes a mockery of the treaty' as it
is commonly known that nothing would happen if a person overstayed their permit
or arrived without one.
Mayor Gela stated:
The treaty is inconsistently operated throughout the entire
region, with those charged with the responsibility of enforcing the treaty
sitting on their hands because that is the easy solution, preferring not to
rock the boat, while it is the people of the Torres Strait and the Western
Province who ultimately suffer.
The Torres Strait people are called upon every day to work
within a system that is broken. The Torres Strait treaty is only broken; it can
be fixed, for the benefit of all.
During the committee's visit to the northernmost islands of the Torres
Strait, local community leaders gave added substance to accounts of people
contravening Treaty provisions with impunity. As noted previously in this
report, they referred to villagers coming over from PNG to escape from their
own law enforcement agencies, to fish or trade illegally or seek medical
services. In their view, the law needs to stand firm and because agencies
'close their eyes they remain blind to what is going on so that nothing will
At the committee's open forum on Thursday Island, Mr David referred to
illegal fishers who are active in the region and the failure to police PNG
nationals crossing the border to 'sell anything'. In his view, 'if we are
interested in ensuring that this treaty is working as it should then these
sorts of things should be reviewed and some real changes made'.
Indeed, the TSIRC requested a full review of the Torres Strait Treaty 'as our
local Islanders have a different concept of the original treaty, than what is
carried out today'.
It informed the committee that the communities are '100% behind the Treaty
Although the TSRA was of the view that the Treaty was 'sound', Mr Kris acknowledged
that, in discussions with local members and communities throughout the region,
some expressed dissatisfaction with the operation of the Treaty. In their view,
there should be at some time a review of the treaty:
...to look at how the practices have changed and in particular
how the changes have happened throughout the life of the treaty that has moved
from a barter system to a cash flow system as has happened in the later years.
In this regard, the concerns raised by local communities about breaches
of, or disregard for, Treaty arrangements are not trivial: they go to the heart
of their way of life. Any deep-seated and sustained dissatisfaction with the
handling of such important matters will clearly influence their attitude toward
the Treaty and undermine the support that DFAT identified as so important.
Even though DFAT was of the view that the Treaty had a high level of
support from traditional inhabitants, it also noted that the Treaty's two
important roles—defining the border and protecting the traditional way of
life—had 'sometimes led to confusion and poor understanding' by stakeholders and
the general public.
Noting that the Treaty is 'a legal document, and people can read it but not
always understand the detail', Mr Young explained:
The detail is often decided at local level and it is not
always understood beyond that local level. So one of our roles is to explain what
those obligations and expectations are.
Mr Bruer reinforced the view that the Treaty was a complex document with
dual purposes that provides scope for confusion between what is and is not
He later clarified this statement by informing the committee that the role of
the treaty was 'reasonably well-defined and...fulfils its roles reasonably well'
and there was 'great support to the treaty'.
He thought that the potential for confusion generally was among people outside
the region: that people within the region understood it.
In his view, DFAT's role was to continue 'to work closely with the
communities that are in the region and affected by it'.
In this regard, Mr Bruer informed the committee that DFAT consults with 'stakeholders
on a day-to-day basis about all aspects of the treaty'.
At the working level we try to minimise that confusion by
continual work, through...liaising and negotiating and talking to and with
outreach efforts to the various communities on both sides of the border to make
sure that the requirements and obligations and responsibilities of people under
the treaty are all understood well.
According to Mr Bruer, the 'various aspects of the treaty and the ways
in which they are implemented are subject to constant review in many ways and we
always review and monitor the way in which those things work'.
Mr Young also pointed out that the rules for, the obligations on, and the
expectations of traditional inhabitant communities change from time to time, as
pressures change, as issues change.
He informed the committee that differences in interpretation were dealt with at
the TIMs. Citing the confusion over the definition of barter and market trade, Mr
Issues like this pop up every year and are workshopped and
dealt with at the Traditional Inhabitants Meeting, and this will be one of the
issues that I have already taken, on a consultative process, through all of the
treaty communities on both sides of the border. We will deal with it, one way
or the other, at the local level at the Traditional Inhabitants Meeting.
In the previous chapter, the committee described the cycle of Treaty
meetings, including the TIMs, and noted that some local leaders were
disappointed with the lack of action that follows such meetings. The committee,
however, is particularly concerned about what appears to be persistent
differences in perception regarding what is happening on the ground in the
Torres Strait. This disparity was particularly evident in views on overstayers,
misbehaviour or even criminal behaviour of some PNG visitors, and government
responses to requests by local councillors for the border to be closed when
island resources are under stress. This difference in perception then leads to
a sense that the Australian Government is not attending adequately to local
concerns. Again, this is evident across many areas but particularly with the
free movement provisions and reflected in comments made by local leaders.
Notably, Mr Rodney Scarce, CEO TSIRC, observed that even in past conversations
with the local DFAT representatives and Immigration, 'it has been their
interpretation of the treaty as opposed to our interpretation of the treaty
that has put us at loggerheads'.
As an example, he used the differences in interpretation about the term barter
and whether the handing over of cash for the exchange of goods was in line with
the Treaty. According to Mr Scarce, while DFAT and Immigration allow this level
of cash transaction, the literal interpretation of barter does not. He told the
That is something that has evolved over time. I do not
believe council cares either way, but it needs to be enforced as it stands on
that one particular thing.
This idea that government agencies are not responding adequately to
local concerns is not confined to PNG visitors to Torres Strait communities.
Local people also highlighted what they believe is the lack of attention given
to their fears about the adverse effects of climate change in the region.
The committee is also concerned about the view that PNG does not have
the capacity to work alongside Australia as partners in making the Treaty a
success. Local leaders from communities in the Torres Strait are disappointed
with the effort on the PNG side of the border to support and adhere to
arrangements made under the Treaty. The TSRA summed up this view when it stated
that the problems associated with the Treaty's operation 'lie with the poor
socio-economic circumstances of PNG and the resources that are needed on the
Australian side of the border to "carry" the resultant burden'.
Furthermore, in the previous chapter, the committee noted local community views
that 'every time an issue crops up, with the ways things are clarified, more
preference is given to the need of people on the PNG side of the border rather
than the communities on our side'.
In this context, the committee considered the inadequate delivery of
health services on the PNG side of the border and the failure of PNG to police
or enforce Treaty arrangements, for example in the harvesting and trading of dugong
and turtle. The committee also presented evidence about the poor attendance of
PNG representatives at JAC meetings, with observations about resourcing issues
and PNG's limited capacity to act on agreements reached between both countries
under the Treaty.
Local leaders in the Torres Strait recognise the poor living standards
in the villages in the South Fly District and their lack of resources and
access to essential services. The leaders do not believe, however, that their
communities in the Torres Strait should bear an unfair burden in supporting
these villagers or in their efforts to make the Treaty a success.
There is no doubt that some local leaders feel let down by the way
certain aspects of the Treaty are administered and at times believe that their
concerns are not listened to or acted upon. In some instances, their perceptions
of a problem differ significantly from that of government officials. Even
though, there are opportunities to air and resolve these concerns and to
reconcile differences in perceptions, notably through the cycle of Treaty
Meetings and Treaty awareness visits, a level of discontent remains. This sense
of frustration and disappointment extends to PNG's contribution to ensuring
that arrangements under the Treaty work effectively.
The committee recommends that DFAT explore the reasons for the different
perceptions held by traditional inhabitants and state and Commonwealth
authorities on the effectiveness of arrangements under the Treaty and report on
its findings. This report to include suggestions on ways to reconcile these
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