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Introduction

Purpose of this report

This Report contains the results of the consideration by the Joint Standing Committee on Treaties of an Exchange of Notes constituting an Agreement between Australia and the United States of America to further extend the Agreement relating to the Establishment of a Joint Defence Facility at Pine Gap. The Exchange of Notes (which we will refer to as the 1998 Amendment) was tabled in Parliament on 30 June 1998.

The Pine Gap agreements

The Joint Defence Facility at Pine Gap was established in 1966, pursuant to an agreement providing for a ‘joint defence space research facility’. This agreement (hereafter the Head Agreement) came into force on 9 December 1966 and has been amended twice by exchanges of notes: first in 1977, and again in 1988.

The Head Agreement requires that:

the two Governments ‘shall establish, maintain and operate in Australia a facility for general defence research in the space field’;
the Australian Government shall provide land for the facility which will remain vested in the Australian Government;
the United States Government will be accorded ‘all necessary rights of access to, and joint use and occupation of, the land’; and
the land ‘shall be considered a secure area’.

The preamble to the Head Agreement alluded to the purpose of the facility when it states the following as the context in which the agreement was negotiated:

…

NOTING [the ANZUS treaty] … which provides that the parties thereto will separately and jointly maintain and develop their individual and collective capacity to resist armed attack;

DESIRING to cooperate further in effective defence for the preservation of peace and security;

CONSIDERING that the establishment, maintenance and operation of joint United States-Australia defence space research facility in Australia will materially contribute to that end;

…

The purpose of the Joint Defence Facility was further amplified in the National Interest Analysis presented to Parliament in support of the 1998 Amendment. This document described the Facility as ‘an intelligence gathering facility.’

The proposal to further extend the Head Agreement was finalised in July 1996, during the Australia-United States Ministerial Consultations. The 1998 Amendment, which will give effect to this proposal will extend the non-termination period of the facility at Pine Gap for a further 10 years from 16 November 1998.

The Committee's review task

Our review of the 1998 Amendment has proved to be a difficult and time-consuming exercise.

From the outset we sought to apply the same test to this proposed treaty action as we apply to all treaties that come before us: that is, to ask whether the proposed treaty is in Australia's national interest. A public examination of this question is at the heart of the reformed treaty making process established by the Government in 1996.

We see our responsibility as being to advise Parliament, and the wider community, as to whether the benefits of a proposed treaty action outweigh any costs associated with that action.

We have, however, been very conscious of the national security sensitivities associated with this particular treaty action. The Joint Defence Facility at Pine Gap is a highly classified Defence establishment and we acknowledge that the disclosure of detailed information about the precise purpose, deployment and operational potential of the Joint Defence Facility might be contrary to Australia's national interests. Accordingly, we have sought to modify our review procedures and accepted the need to seek some information in camera rather than in public session.

From the outset of our review we were inclined to believe that it would be in Australia's national interest for the 1998 Amendment to proceed. But in order to draw a firm conclusion on the matter, and to fulfil our review and reporting obligations, we needed information from the relevant government officials.

Our review has been focused on obtaining such information.