P 300659Z SEP 08
FM AMEMBASSY CANBERRA
TO SECSTATE WASHDC PRIORITY 0262
INFO AMEMBASSY BEIJING 
AMEMBASSY LONDON 
AMEMBASSY PORT MORESBY 
AMEMBASSY SINGAPORE 
AMEMBASSY TOKYO 
AMEMBASSY WELLINGTON 
AMCONSUL MELBOURNE 
AMCONSUL PERTH 
AMCONSUL SYDNEY 
JOINT STAFF WASHINGTON DC
USMISSION GENEVA 
COGARD NAVCEN ALEXANDRIA VA
USMISSION USUN NEW YORK 
CDR USPACOM HONOLULU HI
SECDEF WASHINGTON DC
SECNAV WASHINGTON DC

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