I rise today to table the Treaty between Australia and the Kingdom of the Netherlands on the presence of Australian personnel in the Netherlands for the purpose of responding to the downing of Malaysia Airlines flight MH17.  The treaty is accompanied by a National Interest Analysis.

We live in an increasingly interconnected world where events far from home can have profound implications for us.

On 17 July, Malaysia Airlines flight MH17 from Amsterdam to Kuala Lumpur was shot down over separatist-held territory in eastern Ukraine killing all 298 passengers and crew on board.  It was a civilian aircraft in civilian airspace, with the wreckage landing in a war zone. In a cruel twist of fate Australia was suddenly at the fulcrum of the Russia– Ukraine conflict. 

Among those killed were 38 passengers who called Australia home - and another three with close links to Australia.  We have been profoundly saddened by the loss of so many Australians. Among them: a 25 year-old travelling in Europe, like so many young Australians do; a couple, both doctors in Toowoomba, at the end of a six-week holiday; three young Western Australian children travelling with their grandfather, returning home for the start of the school term.  All innocent people, for whom we continue to grieve.

In response to this horrific crime, the Government launched Operation Bring Them Home – our contribution to international efforts to secure, identify and repatriate the remains of the victims, to investigate the cause of the incident and to hold those responsible to account.

Australia authored UN Security Council Resolution 2166 which was endorsed unanimously on 21 July.  It called for a ceasefire to access the crash site, and a full, thorough and independent investigation into the downing of MH17. During that debate I said:

“Our resolution demands that armed groups in control of the crash site provide safe access immediately to allow for the recovery of the bodies, and that these armed groups stop any actions that compromise the integrity of the crash site. This is imperative.

“There must be a ceasefire in the immediate area around the site. The victims must be treated with dignity, brought back to their homes and laid to rest. All parties are required to fully cooperate with these efforts. Russia must use its influence over the separatists to ensure this. Russia must also use its influence to bring the conflict in Ukraine to an end.

“Our resolution also demands a full, thorough and independent international investigation into this act. We must have answers. We must have justice. We owe it to the victims and their families to determine what happened and who was responsible.”

Over 500 Australian police, military, diplomatic and consular personnel were deployed to Ukraine and the Netherlands in support of these efforts.

As of today, 251 victims have been identified by the Identification Commission in The Hague.  We have representation on that Commission and its work is assisted by a number of technical experts from Australia.

Out of respect for the families involved, I will not confirm the number of Australian victims that have been identified to date, however it will be some time before the identification process is complete. I attended two memorial services at Eindhoven airbase in the Netherlands and I acknowledge again the outstanding efforts of the Netherlands in bringing dignity and respect to the retrieval process. 

In parallel to the process of recovering, identifying and repatriating remains, an investigation into the cause of the crash, as required by the Chicago Convention on International Civil Aviation, is underway.

The investigation has broad international participation, drawing on experts from France, Germany, Indonesia, Italy, Malaysia, Russia, Ukraine, the United Kingdom and the United States, as well as from the European Aviation Safety Agency and the International Civil Aviation Organisation.  

On 9 September, the preliminary report by the Dutch Safety Board into the incident was released.  Its purpose is to determine the cause of the incident – not to attribute blame or liability.  

I welcome the preliminary report as a clear step towards achieving the full, thorough and independent international investigation sought by Resolution 2166.

The damage to the aircraft documented in this preliminary report is consistent with the Australian Government’s initial assessment - voiced as early as the morning of 18 July - that MH17 had been shot down by a surface-to-air missile from Ukrainian territory under the control of Russian-backed separatists. 

On 19 September I attended a special meeting of the United Nations Security Council in New York on MH17.  Members of the Security Council firmly rejected Russia’s attempt to discredit the investigation into the downing of MH17 and reaffirmed their support for the International Dutch-led criminal investigation.

At that meeting, I thanked the Government of the Netherlands for its professional leadership of the investigation.  I underlined Australia’s commitment to return investigators to the crash site when it was safe to do so, in the company of our Dutch and Malaysian partners. 

The separate Dutch-led investigation into who was responsible for this crime is an ongoing process. Australia has been providing all possible assistance.  We are under no illusions about the challenges involved in identifying the perpetrators, but we are determined to do everything we can to deliver justice for the victims of MH17 and their families. 

In order to deploy to, and operate in, the Netherlands, the Department of Defence and the Australian Federal Police required certain rights and protections. 

The Netherlands advised that it was only able to grant such rights and protections under a treaty-status agreement, enforceable before Dutch courts of law.

This treaty defines the scope of permissible Australian activity in the Netherlands. It provides that Australians deployed to the Netherlands remain under Australia’s command and control, and that any necessary administrative or disciplinary action will be taken by Australia, not the Netherlands.  The Treaty extends privileges and immunities to Australian personnel, and authorises them to carry weapons. It enables them to wear field uniforms; and regulates information sharing and disclosure. 

The Treaty was signed and entered into force on 1 August this year. The Government relied on the National Interest Exemption to take binding treaty action before the Treaty was tabled in Parliament.  This was imperative to ensure that all necessary personnel and equipment could be deployed to the Netherlands without delay, and to ensure that all personnel (including those present in the Netherlands before the Treaty’s entry into force) were accorded appropriate protections.

Responding to crises such the tragic downing of MH17 is the type of situation envisaged by the National Interest Exemption.

From the moment we heard the news of this tragedy, Australia has played a critical role in the international response. 

I again pay tribute to the large number of dedicated Australians who worked tirelessly and are still working to retrieve and identify remains, liaise with family members, and investigate the shooting down of MH17. 

I commend the Treaty to Parliament as a critical element of the legal framework that was necessary to ensure that representatives of our country have all of the rights and protections they need to continue to fulfil our commitment to bring our people home.

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