TORRES STRAIT: AUSTRALIAN LETTER

C O N F I D E N T I A L CANBERRA 000995


NOFORN

DEPARTMENT FOR EAP/ANP AND L/OES

E.O. 12958: DECL: 09/29/2018
TAGS: SENV PREL PHSA PBTS EWWT KTIA AS
SUBJECT: TORRES STRAIT: AUSTRALIAN LETTER

REF: STATE 101422


Classified By: Economic Counselor Edgard Kagan. Reasons 1.4 (b/d).


1. (C/NF) Summary: After interagency consultations about
changes to the Torres Strait Pilotage regime discussed in
Washington in early August (reftel),the Australian
Government is willing to move forward and seeks a more formal
statement from the United States in order to bring
modification to the Cabinet. Department of Foreign Affairs
and Trade International Legal Branch Assistant Secretary Adam
McCarthy provided a letter to EAP/ANP Director Frelick
September 29 laying out Australia's willingness to modify the
existing Marine Notice to state that failure to take on a
pilot by a vessel longer than 70 meters during a passage
through the Torres Strait would be subject to punishment the
next time the vessel entered an Australian port. McCarthy
said that this modification discussed in Washington has been
approved at the senior working level by the appropriate
Australian agencies (DFAT, the Attorney General's Department
and the Australian Maritime Safety Agency). Before taking
the next step, which would be to bring the modification to
the Cabinet, the GOA wants to ensure that this modification
would address U.S. concerns. Emphasizing Australia's desire
to resolve the matter, McCarthy asked for some form of
written reponse that would allay concerns that the United
States might not be satisfied with the proposed change.
McCarthy also stressed Australian concern that this proposal
not be shared with Singapore until finalized, as well as
asking that the United States refrain from criticizing the
Torres Strait regime in multilateral fora. He said the GOA
would like to bring the issue to the Cabinet for action
before the middle of December. End Summary.


2. (C/NF) DFAT International Legal Division Assistant
Secretary Adam McCarthy told Econcouns September 29 that
Australian officials have reached preliminary agreement on
changes to the Torres Strait Pilotage regime to address U.S.
concerns. These follow very closely the August 6-7
discussions held in Washington. McCarthy praised U.S.
willingness to engage productively at those talks. The key
point from Canberra's perspective had been to realize that
the U.S. view of Port State authority is significantly
broader than Australia's. He said this allows room to
address U.S. concerns while maintaining what Australia
considers to be the key elements of the current regime.


3. (C/NF) The next step will be to take the modification to
the Cabinet, according to McCarthy. Before doing this, the
GOA would like confirmation that the United States is
satisfied with the proposal. This confirmation should be in
some form of written communication, he said, saying that it
will be important to have something to answer questions from
the Cabinet. McCarthy stressed that the Australians are
still addressing the question of how the change would be
addressed under domestic law, but that this is a technical
addressed under domestic law, but that this is a technical
issue that should be relatively easy to resolve once the idea
of the change has been approved. He said that the GOA would
like to move quickly on the issue, ideally by securing
Cabinet approval by mid-December. (Comment: This would be
right before Australia's long summer holiday in which the
Cabinet usually does not meet until early February. End
Comment.)


4. (C/NF) McCarthy said that Australia has classified the
letter, which is for Australian and U.S. Government eyes only
because of the implications of such a document should
Singapore press ahead with international legal action. He
asked that the United States refrain from criticizing the
Torres Strait regime while the matter is under consideration.


5. (C/REL Australia)

Begin Text of Letter:
FOR AUSTRALIAN AND UNITED STATES GOVERNMENT EYES ONLY


26 September 2008

Ms. Alcy Frelick
Director
Office for Australia, New Zealand and Pacific Island Affairs
United States Department of State

(By Hand): Dear Alcy:

Thank you again for hosting us during our recent discussions
on Australia,s system of pilotage in the Torres Strait.
From an Australian perspective the discussions were
productive -- they involved a frankness, openness and
collaboration that did justice to the wider bilateral
relationship which our two countries enjoy.

I am sorry it has taken some time to get back to you but, as
you will appreciate, the possible changes we discussed in
August involve a range of administrative, legal, operational
and policy questions which we have had to work our way
through at this end. Following detailed inter-agency
consideration, we are now in a position to return to you with
a proposed way forward.

We have decided that the most prudent course would be to
stick as closely as possible to the text which we discussed
with the United States in August.

Our proposed way forward would therefore be to alter the
current marine notice to the effect that:

Pursuant to International Maritime Organization Resolution
MEPC.133(53),if a vessel passes through the Torres Strait
and it does not comply with Australia,s system of pilotage
for merchant ships 70 m in length and over or oil tankers,
chemical tankers, and gascarriers, irrespective of size, the
Government of Australia will notify, the vessel,s Flag
State, Owner, Operator and Master that the vessel failed to
take a pilot and henceforth cannot enter an Australian port
without the risk of the Owner, Operator and/or Master for the
vessel being subject to a penalty under Australian law.,

I should emphasize that this proposal has been developed at
official,s level and is yet to be considered by Ministers.
If you indicate that the United States sees this proposal as
an acceptable way forward then we will seek Ministerial
approval and, provided Ministers agree, state the process of
implementation.

By way of explanation, as you would be aware, the Australian
government is comfortable with the current arrangements in
the Torres Strait, which are working well in practice and
which we are confident are fully consistent with
international law. We accept however that the United States
does not share that view and given the importance of our
bilateral relationship to both countries, have been prepared
to work with you to try and reach an accommodation.

In terms of Singapore, we continue to think that the
modalities we discussed in August make the most sense.
Provided the United States accepts this proposal and
Ministers in Australia agree to proceed with it, we would
then, separately but in parallel, take the proposal to
Singapore. In this regard Ash Roach's offer to "pitch" the
package to Singapore once we have reached agreement on it
remains much appreciated.
Qremains much appreciated.

Please feel free to contact me either via Edgard Kagan or
direct (w 61 2 6261 1188, h 61 2 6295 9834, cell 61 421 589
985).
Warm regards


Adam McCarthy
Assistant Secretary
International Legal Branch

End Text.

McCallum