The Treaty With Indonesia

The recent negotiations towards a securtity treaty with Indonesia raise issues that relate to aspects of government policy towards the press. David Flint comments.

The signing of a security treaty with Indonesia is quite remarkable. Who would have suggested it a few months ago? We were then in the middle of the embarrassing incident concerning the new Ambassador who never came. What is extraordinary was that there was no leak.

Secret negotiations for treaties (and it is a treaty) are nothing new. The Munich agreement was negotiated in camera. There was no consultation not even with the Czech people, before Chamberlain handed over the Sudetenland to Hitler. The Molotov-Ribbentrop Pact assured Hitler that Stalin would not intervene while Germany had a free hand in Central and Western Europe. Secret clauses divided Poland between the two dictators.

At the end of the first World War, Woodrow Wilson tried to outlaw secret treaties, but not secret negotiations. The Bolsheviks had helped him by publishing the Czar's secret archives, which showed, for example, that at least one great power had promised the same territory to different states.

Should treaty negotiations be secret? This is a matter for the Royal Pre-rogative - i.e. the executive government. Most Western democratic republics involve the Parliament to a lesser or greater degree. The government's preferred minimalist republic won't involve Parliament in treaty making.

A leak

The government suggests that if the negotiations with Indonesia were made public the treaty might not have been signed. What would have happened had these leaked and, because of the resulting furore in Australia, the negotiations had collapsed? It's relevant to recall that around the same time the Government announced details of legislation to deal with newspapers publishing official secrets. This would include information relating to international relations which is of significance to Australia's national security interests - the precise subject of the Indonesian treaty! But, for a prosecution to be successful, it would have to be shown that publication would have seriously endangered our interests overseas, or have seriously obstructed the promotion or protection of those interests. Would the failure of the treaty negotiations constitute damage? Alternatively, that it endangered the safety of Australians overseas.

The maximum penalty for a newspaper would be a $1 million fine. The trial would normally be held in camera.

When the government announced the legislation, it also proposed reinvigorating the voluntary 'D' notice system. But, as Justice Samuels warned in his report on ASIS, the introduction of such legislation would in all likelihood, destroy the voluntary system. The general view in the media is that a self-regulatory system would be preferable.

Had the Indonesian negotiations leaked to a newspaper, the new 'D' notice system would have required the newspaper to consult with the Department of Defence. If there were real national security interests at stake, sufficient to satisfy a responsible editor, the government might have persuaded the editor to exercise some restraint. If the legislation comes in, a determined leaker might go somewhere else. An East Timorese group could, for example, arrange a press conference in the US to announce the news. I suspect the government would have more chance with a voluntary system.

Perhaps the best defence against publication lies in the government effectively protecting its secrets. It gets full marks for this over the Indonesian treaty. Whether this is desirable is a matter for public debate. The government's defence is that, if the negotiations had been made public, there would have been no treaty.

David Flint

see also
Index of David Flint's material on the website

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