ON June 30, 2004, the foreign ministers of PNG and Australia – Sir Rabbie Namaliu and Alexander Downer – signed a ground-breaking treaty. Little was known about the contents of the agreement and, therefore, there was no public debate on it.
When it became public, it was already an international agreement between two countries and within months it was law in PNG.
Called the Enhanced Co-operation Programme (ECP), the treaty was to provide for Australian police and other personnel to work in various sectors in Papua New Guinea.
More specifically, Australian federal policemen were to be deployed for the first time on PNG soil to do beat patrols alongside their PNG counterparts and for various other Australian civil servants including lawyers to be engaged in senior capacities including occupying the offices of public prosecutor and even to become judges within PNG. The total package was to provide an additional K2 billion over and above existing aid levels to PNG.
Many leaders saw the money figures and praised it but a few, including Prime Minister Sir Michael Somare, were privately skeptical. Only one came out openly voicing opposition. Morobe Governor Luther Wenge read the fine print and was incensed that it had been agreed to by the PNG side. He called the agreement “deplorable, discriminatory and in contravention of the Constitution of PNG”.
Mr Wenge found certain provisions in the agreement to be “repugnant to the principles of natural justice and which contravened the Constitution and various acts of Parliament”. He declared the entire agreement and the manner in which it was rushed through was a “charade” and an “insult” and said it would not stand the scrutiny of PNG law or international standards.
Of particular worry were the provisions in the treaty which granted immunity from prosecution for the Australians engaged under the ECP and for their dependents. Other laws pertaining to migrations, taxation, tariffs and duties, transport and civil aviation, and telecommunications were to be waived under the agreement.
In essence, Australia could virtually assemble aircraft, ships and set up any operations, open or clandestine, as and when they pleased under the programme. Worrying still, the ECP was endorsed in its entirety as a schedule to an Act of Parliament, giving it force of law on July 27, 2004, without debate in Parliament. The law was certified on Aug 9, 2004.
The governor gave notice and a few weeks later had filed a Supreme Court reference seeking a ruling on the constitutionality of the ECP. Following deliberations, by which time hundreds of Australian police were deployed in Port Moresby, Lae and Mt Hagen and other towns, the PNG Supreme Court held that the agreement was indeed unconstitutional and declared it void and of no effect.
Many of the Australian members engaged under the programme were forced to leave. To our mind, there is nothing wrong with having expatriate professionals working in PNG. Australian personnel as well as those of other nationalities have been attached to PNG in various advisory capacities ever since Independence, so the idea is not new or unwelcome.
Indeed, in some areas there is a need for professionals from the outside to come into PNG to assist. What would be of concern is whether or not foreign nationals in various fields of employment do so legally.
Nothing is so important and so urgent that laws of our country should be broken. In the most recent debate on the riots against Asian-owned and operated businesses, we have been alerted to the fact that laws on reserved and restricted businesses and jobs have been flouted and that so many foreigners are engaged in these reserved areas at the great expense of PNG.
In the end, the ECP agreement was found to have undermined the integrity and independence of PNG institutions and agencies and in particular: Undermined the Constitution; undermined the legal and judicial professions; undermined the taxation system of the country; and discriminated against the people of PNG.
And this law and agreement were drawn up by very senior officials of PNG and Australia and signed by two of the most senior politicians of both countries. To top it off, it was approved by the PNG Parliament and made into law without one objection.
That is the great danger we face – the lack of care and the ease with which we break our own laws to our everlasting regret. That is what we cannot and must not have.