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Conclusions and recommendations

Introduction

From the outset of our review we have been inclined to support the proposed treaty action. It is likely that, had we received sufficient information from the Department of Defence, we would have concluded unanimously that the proposed treaty action is in Australia’s national interest. However, given the failure of the Department to provide such information, we have no basis upon which to completely endorse the proposed treaty action.

We note that there is no particular urgency associated with this treaty action. The Head Agreement, as amended by the 1988 Amendment, provides that it will continue to remain in force indefinitely, unless terminated on three year written notice. Accordingly, the Joint Defence Facility is operating and will continue to operate despite the delayed conclusion of the 1998 Amendment.

The problem exposed by our review

This review has presented us with a problem Parliament needs to resolve.

The problem arises from a conflict between the duties of the Treaties Committee, which require it to review all proposed treaty actions, and the tradition of secrecy that surrounds the operation of the Joint Defence Facility at Pine Gap.

Having been charged with a specific responsibility by the Parliament, to review and report on all proposed treaty actions without exception, we cannot fulfil that responsibility in the absence of evidence that would enable us to come to a concluded view.

In our view, the Department of Defence has sought to:

limit unnecessarily the information provided to us about the purpose and operation of the Joint Defence Facility to less than is already available on the public record; and
deny the Treaties Committee access to the Joint Defence Facility while at the same time acquiescing in the right of certain members of the US Congress to visit the Facility.

We are concerned at the apparent attempt by the Department of Defence to hinder the Parliament from exercising its responsibilities on behalf of the Australian people.

Our duty

The resolution of appointment for the Treaties Committee (a copy of which is at Appendix A) states that our first duty is to inquire into and report on ‘matters arising from treaties and related National Interest Analyses and proposed treaty actions presented or deemed to be presented to the Parliament.’

This is an unambiguous and unqualified duty. We have been asked by the Parliament to review all proposed treaty actions that are tabled in Parliament. The resolution does not limit our responsibilities to any particular category of tabled treaties. It does not, for example, limit our reviews to only those treaties without national security implications.

The unfettered nature of the Committee’s authority was made plain by the Minister for Foreign Affairs, the Hon Alexander Downer MP, when announcing the reformed treaty making process in May 1996. The Minister stated that:

The new arrangements [that is, the tabling of treaties in Parliament and allowing for Treaties Committee review] will apply to all treaties, bilateral as well as multilateral. They will also apply to all actions which amend a treaty if the amendment would alter obligations with a legally binding impact on Australia.

The Minister contemplated only one exception to this rule – that the Government would reserve the right to take urgent treaty action in circumstances where it is ‘necessary to safeguard Australia’s national interests, be they commercial, strategic or foreign policy interests’. In circumstances where urgent action is deemed to be necessary the Minister stated that the treaty action would ‘be tabled as soon as possible together with an explanation’. This exception is not relevant in this case.

It is reasonable to assume that, when establishing the Treaties Committee, the Government intended to allow the Committee access to sufficient information to enable it to perform its review functions adequately, diligently and in respect of all treaties tabled in Parliament.

We have not been provided with sufficient information in this case.

Resolving this issue

This situation is untenable and must be resolved. A resolution can be achieved in various ways:

the Government can direct the provision of information which will enable us to make a finding about whether the proposed treaty action is in Australia’s national interest;
the Government can move to modify the resolution of appointment for the Treaties Committee to provide that treaties with national security implications are excluded from our review processes;
the Government can move to establish a special ad hoc parliamentary committee to review sensitive security related treaty actions (the form and function of this committee could be described in a manner that ensures Australia’s security interests are not jeopardised); or
the Government can move to establish a joint National Security Committee of Parliament to oversee the operation of defence facilities, including the Joint Defence Facility, and other defence-related security and intelligence agencies (the first task of this committee could be to determine whether the continuation of the Joint Defence Facility is in Australia’s national interest).

We strongly favour the first option. It is the only way the Treaties Committee can fulfil its charter.

Concluding comments

We acknowledge that, from the Executive’s point of view, there are reasons to limit the extent to which classified defence and intelligence information is divulged and to whom. Wide disclosure of some such information may well damage Australia’s political, strategic or commercial interests. But in a changing world environment, expectations about community influence over government decision-making have grown. Transparency, not secrecy, is being demanded of the Parliament as well as the Executive. Likewise, a better balance is being sought between Executive decision-making and parliamentary oversight. It is precisely these sentiments which led to the development of the reformed treaty making process.

We are concerned by the fact that, at the same time as Australian parliamentarians are denied access to information about the Joint Defence Facility, members of a good many US congressional committees are routinely allowed access to such information. Such access is allowed without apparent jeopardy to US national interests.

We acknowledge that the Joint Defence Facility is subject to some political oversight in Australia. All members of the National Security Committee of Cabinet are fully briefed on the Facility and are entitled to full access to the Facility and it operations. In addition, the Leader of the Opposition and the Opposition spokesman on defence are entitled to full briefings and access.

It is not within our charter to speculate upon whether these arrangements provide an adequate level of operational oversight of the Joint Defence Facility. Our point is simply that these oversight arrangements are quite different from, and should not be substituted for, the treaty review responsibilities that Parliament has conferred on the Treaties Committee.

Accordingly, we make the following recommendations.

Recommendation 1

That the Minister for Defence authorise his departmental officials to provide the Joint Standing Committee on Treaties with:

a classified briefing on the purpose and operation of the Joint Defence Facility;

a copy of the classified agreement that gives operational effect to the Agreement between the Australian Government and the United States Government relating to the Establishment of a Joint Defence Space Research Facility (1966);

on-site access to the Joint Defence Facility at Pine Gap; and

such other information as may be required to enable the Committee to determine if the treaty action is in Australia’s national interest.

Recommendation 2

That the Minister for Defence, in conjunction with the Minister for Foreign Affairs and the Joint Standing Committee on Treaties, develop a protocol for ensuring constructive parliamentary consideration of sensitive security-related treaties. The protocol should:

identify the full range of sensitive security-related treaties and subsidiary agreements to which Australia is a party;

recognise the legitimacy and importance of the reformed treaty making process;

require that briefings provided to the Committee be comprehensive and at least the equivalent in terms of detail and depth as briefings provided to the ASIO and NCA Committees of the Parliament, provided that such briefings be held in camera; and

empower the Committee to request the relevant Ministers to be present during such briefings to assist the Committee.

At this stage, on the basis of the limited evidence available to us, we are inclined to the view that the continued operation of the Joint Defence Facility is in Australia’s national interest and therefore come to the following conclusion.

Conclusion
	The Joint Standing Committee on Treaties: supports, in principle, the Exchange of Notes constituting an Agreement between Australia and the United States of America to further extend the Agreement relating to the Establishment of the Joint Defence Facility at Pine Gap; and with the limited evidence made available, finds no reason to object to the continuation of the Joint Defence Facility.

ANDREW THOMSON MP

Committee Chairman

12 October 1999