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Dissenting report
Senator the Hon Chris Schacht, the Hon Dick Adams MP, the Hon Janice Crosio MP and Kim Wilkie MP

Introduction

  1. We agree with much of the material contained in the majority report. I support Chapters 1, 2 and 3 of the report. We also agree with the early sections in Chapter 4, up to and including paragraph 4.13.
  2. Our disagreement with the majority arises in consideration of how to resolve the dilemma exposed by our review.
  3. The text that follows should be read as a replacement to the text appearing in paragraphs 4.14 to 4.24 in the majority report.

    4. Resolving this dilemma

  4. This situation is untenable and must be resolved.
  5. The Government should direct the Department of Defence to provide information which will enable the Treaties Committee to make a finding about whether the proposed treaty action is in Australia’s national interest.

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    Recommendation 1
     

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

  6. a full (classified level) briefing on the purpose and operation of the Joint Defence Facility;

  7. 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); and

  8. on-site access to the Joint Defence Facility at Pine Gap.

    9.  

    1. If the Government does not accept the recommendation to provide a full briefing to the Joint Standing Committee on Treaties, then the Government should move to establish a 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.

      2. Recommendation 2
       

      The Prime Minister, the Minister for Defence and the Attorney-General should jointly 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 motion to appoint the National Security Committee of Parliament should provide:

    2. for a Committee of seven members of parliament, comprising 4 members of the House of Representatives and 3 Senators, with a majority of government members;

    3. for the House members of the Committee to be appointed by resolution of the House on the nomination of the Prime Minister;

    4. for the Senate members of the Committee to be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate;

    5. that the following members of Parliament are not eligible for appointment to the Committee – a Minister, the President or Deputy President of the Senate, and the Speaker or Deputy Speaker of the House of Representatives;

    6. that the Committee be empowered to monitor and review the performance of those agencies involved in gathering and analysing defence-related security and intelligence information; and

    7. that the Committee be empowered to report to Parliament on any matter pertaining to the performance of its duties, provided that the Minister for Defence certifies that nothing in a proposed committee report would jeopardise Australia’s national security interests.

      8. Recommendation 3
       

      The first task of the National Security Committee of Parliament should be to review whether the continuation of the Joint Defence Facility at Pine Gap is in Australia’s national interest. To enable the National Security Committee to form a view on this matter, the Minister for Defence should provide the Committee with:

      • a full (classified level) briefing on the purpose and operation of the Joint Defence Facility;

      • a copy of the classified agreement; and

      • on-site access to the Joint Defence Facility.

      Concluding comment

      1. We acknowledge that there must be some limits on 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 governments. Likewise, a better balance is being sought between Executive decision-making and parliamentary oversight.
      2. It is precisely these sentiments which lead to the development of the reformed treaty making process.
      3. To argue that elected representatives of the Australian community cannot be entrusted with any more information than has been provided to us during this review displays a disturbing lack of confidence in the maturity of Australia’s democracy and profound disregard for the fundamental principles of public accountability that underpin our parliamentary system.
      4. The absurdity of this argument is highlighted by the fact that members of a good many US congressional committees are routinely allowed access to such information without apparent jeopardy to US national interests.
      5. 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 Joint 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.
      6. It is not within the Committee’s 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, Parliamentary oversight arrangements.
      7. We remain inclined to support the proposed treaty action and it is highly likely that, had the Committee received sufficient information, it would have concluded unanimously that the proposed treaty action is in Australia’s national interest. However, in the absence of such information we believe that the Committee has no basis upon which to make such a recommendation at present.
      8. 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 pending the conclusion of the 1998 Amendment.
      10. The Government must act to resolve this matter and, as there is no pressing need to conclude the Amendment, binding treaty action should be postponed until either:
        • the Committee receives sufficient information to allow its review to be properly concluded; or
        • the Government establishes a Joint National Security Committee to deal with matters relevant to Australia's national security and intelligence communities.
      1. Either of these approaches would enable the community to have confidence in a Parliamentary recommendation that the Agreement was in Australia's national interest. The taking of binding treaty action in the absence of these approaches would undermine the reforms to the treaty making process. Until the Government is prepared to take either of the above approaches, binding treaty action should not proceed.

       

       

       

       

       

      SENATOR THE HON CHRIS SCHACHT HON DICK ADAMS MP

      12 October 1999 12 October 1999

       

       

       

       

       

      HON JANICE CROSIO MP KIM WILKIE MP

      12 October 1999 12 October 1999