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Seeking information from the Department of Defence
The National Interest Analysis
1. When proposed treaty actions are tabled in Parliament, the relevant
government agency submits a national interest analysis, which
describes the key features of the proposed treaty action, explains
why the treaty action should be taken and outlines the obligations
and costs that are expected to arise from the treaty and comments
on the extent of public consultation involved in the negotiation
of the treaty.
2. The national interest analysis prepared by the Department of Defence
to support the 1998 Amendment presents the following as the reasons
for the proposed treaty action:
The 1998 Agreement is an important indication of the continuing
commitment of both the Australian and United States Governments
to cooperation at the Joint Defence Facility at Pine Gap. The
Pine Gap Facility is an intelligence collection facility, which
serves to support our mutual security interests, and contributes
to global security.
The systems supported by Pine Gap will evolve to meet the demands
of the post Cold War era, and it is expected that Pine Gap will
remain a central element in our cooperation with the United States
well into the next century.
All activities at the Pine Gap Joint Defence Facility are managed
to ensure that they are consistent with Australian interests.
The activities take place with the full knowledge and concurrence
of the Australian Government, and Australia benefits fully from
them. Australians are fully involved in the management and operation
of the Joint Defence Facility.
3. These were the only public comments made by Defence in support
of the proposed treaty action.
4. We were not satisfied that these statements alone represented
a sufficient basis on which to recommend that binding treaty action
be taken.
5. We decided to continue our inquiries by asking the Minister for
Defence for permission to travel to Pine Gap and conduct an inspection
of the Joint Defence Facility. We envisaged that the inspection
would be supplemented by a private briefing from senior Department
of Defence officials on the contribution that the Facility makes
to our national security interests.
Requests for an inspection
6. On 8 July 1998, Bill Taylor MP, the Chairman of the former Committee,
wrote to the Hon Ian McLachlan MP, who was then Minister for Defence,
asking that the Committee be permitted to visit the Joint Defence
Facility and receive an on-site, private briefing. The Minister
refused the request, arguing that:
By agreement with the United States Government such access is
tightly controlled for both US and Australian citizens and limited
strictly to personnel with a "need to know".
Members of Parliament and Congress whose responsibilities directly
require that they be briefed on the highly classified aspects
of the site are fully briefed on its roles and functions and have
unrestricted access. Bipartisan convention in Australia is that
only relevant Ministers, the Leader of the Opposition, and Opposition
spokespersons for Defence and Foreign Affairs are fully briefed.
7. The Minister concluded his letter by offering a 'comprehensive
briefing' in Canberra by senior officials from his Department.
8. On 10 December 1998, the current Chairman, the Hon Andrew Thomson
MP, wrote to the current Minister for Defence, the Hon John Moore
MP, repeating the request and giving an undertaking that the information
provided would remain confidential. The Minister replied on 11
February 1999 again refusing the request for an inspection and
offering in its place a 'comprehensive briefing' in Canberra.
Private briefings from the Department of Defence
9. We were briefed by senior Defence officials at private briefings
on 22 and 29 March 1999. We were advised that there were essentially
three reasons why binding treaty action should be taken in relation
to the 1998 Amendments: the fact that the Joint Defence Facility
is a significant element in our broader strategic alliance with
the United States; the important contribution that the Joint Defence
Facility makes to the capacity of the United States to remain
globally engaged; and the value of the intelligence gathered by
the Joint Defence Facility, to both the Australian and United
States Governments.
10. This was a clear statement of the arguments in support of the
proposed amendments. However, they were presented as assertions
with little explanation or justification. Although we were inclined
to believe that the reasons were sound, we were not provided with
the range and depth of information which would enable us to report
that a compelling argument had been made in favour of binding
treaty action.
11. This was not an inadvertent outcome. It resulted from a conscious
decision made by the most senior of the Defence officials present
(an officer at the Deputy Secretary level), and apparently endorsed
by the Minister, to limit the amount of information provided to
the Committee.
12. We recognise that there must be limits on the level of detail
disclosed publicly about the operation of highly classified Defence
installations, but we cannot accept that it is reasonable for
Defence to entrust us with testimony that falls well short of
information about the Joint Defence Facility that is already on
the public record. It was certainly far less detailed than we
expected following the promises made by successive Ministers that
their officials would provide us with a 'comprehensive briefing'.
The limited scope of the briefing was confirmed in subsequent
correspondence from Minister Moore when he stated that none of
the information provided to the Committee was classified.
13. We were also disappointed with Defence's ignorance of, or reluctance
to accept, the treaty review responsibilities conferred on this
Committee by the Parliament, on the initiative of the current
Government. It is precisely because of excessive levels of secrecy
that the parliamentary treaty review process was established.
14. One of the issues of most concern to us was Defence's admission
that certain members of the United States Congress have much freer
access to information about the Joint Defence Facility, indeed
access to the facility itself, than Australian parliamentarians.
Different levels of access to the Joint Defence Facility -
Australian and American elected representatives
15. The Department of Defence acknowledged that 'quite a few US Congress
members are briefed on the functions of Pine Gap' and identified
various US congressional committees that receive such briefings,
including the House of Representatives and Senate committees on
intelligence, armed forces, national security and some budget
committees. Although we sought clarification on how many Members
of Congress have visited Pine Gap over the last ten years and
on what sort of briefings they had received, it proved to be difficult
to obtain clear and accurate information from Defence.
16. Defence provided three separate answers to questions taken on
notice on this point, over a period of 9 weeks following the first
briefing. The result was the following advice:
We are not in a position to provide reliable information on Congressional
visits to Pine Gap prior to 1996; and [Since 1996,] one Congressional
committee, the United States House of Representatives Committee
on National Security visited [the Joint Defence Facility] twice;
in January 1997 and again in August 1997 following significant
change in the Committee's membership.
17. We raised our concerns about this disparity both with Defence
and with the Minister for Foreign Affairs, the Hon Alexander Downer
MP. Both replied in similar terms, with the Minister arguing that
the difference does not reflect: privileged access to the facility
but rather the different constitutional arrangements in the US
where members of the Congress are involved in the direct oversight
of US Defence Department activities.
18. Australian parliamentarians have raised these concerns in the
past. In April 1992, the Joint Standing Committee on Foreign Affairs,
Defence and Trade presented a report that was 'very critical of
the anomalous situation in which US Senators receive classified
briefings for which Australian parliamentarians are not granted
clearance'. The former Senator David MacGibbon, speaking upon
the tabling of the Foreign Affairs, Defence and Trade Committee
report, remarked that it was unsatisfactory that members of some
US Congressional committees have full and complete access to information
about the joint defence facilities, but that Australian parliamentarians
are told no more than is 'available from the popular press.' He
went on to argue three points in support of the proposition that
more information be made available to Australian parliamentarians:
[first] as members of parliament, we are fully accountable for
the expenditure of all public moneys. If no-one apart from the
Minister knows what the various intelligence agencies are doing,
no-one in the Parliament can truthfully account to the public
for the expenditure of that money Š [second] information has to
be shared so that opinions can be formed and decisions made by
informed minds Š [and third] the executive government is responsible
to Parliament for the exercise of its authority. It therefore
follows that it is proper for the Parliament to be informed on
intelligence matters.
19. Our experience has confirmed the anomaly, perhaps highlighting
it even more starkly: a congressional committee voting on an annual
appropriation is able to visit the Joint Defence Facility and
receive a classified briefing; while the Treaties Committee, seeking
to advise the community on whether Australia should be bound to
an international obligation for the next ten years, is denied
access to the facility and entrusted with less information than
can be found in a public library.
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