63 Memorandum from Doran to Working Group Departments

Canberra, 22 February 1980

SECRET AUSTEO

Report of Working Group on Possible Revision of the 1944 Treaty between Australia and New Zealand

Attached is a copy of the report of the Working Group chaired by Foreign Affairs which was asked to report to the Australian Permanent Heads Steering Committee on the possible revision of the 1944 Treaty between Australia and New Zealand.

  1. We would be grateful if it could be drawn to the attention of the Permanent Heads and senior officials who will be participating in the meeting on 25/26 February in Canberra.
  2. The finalisation of the Group's work was delayed by difficulties experienced by several Departments in providing, or, in obtaining an agreement on, certain draft articles. The Working Group has endorsed the report on the clear understanding that the draft treaty is indicative only and does not necessarily represent the final position of Department[s] on individual articles if it were decided to proceed with the exercise.

Attachment

SECRET AUSTEO

Report of Working Group 4 on the Proposed Revision of the 1944 ANZAC Pact

As a result of the Permanent Heads meeting in Wellington on 2 November, the Department of Foreign Affairs was asked to chair a working group to investigate the possibility of formalising the 'Nareen Declaration' and updating the Australia New Zealand ANZAC Pact of 1944. It was agreed during the discussions that Australia and New Zealand officials examine the proposal on their own and consider whether the idea could or should be pursued independently or whether it only had merit against the backdrop of a closer economic relationship.

The first meeting of the working group which was held on 30 November 1979 and attended by representatives of the following: Departments of the Prime Minister and Cabinet, Special Trade Representative, Defence, National Development, Immigration and Ethnic Affairs, Primary Industry, Transport, Employment and Youth Affairs, Administrative Services, Business and Consumer Affairs, Finance, Industry and Commerce, Treasury, Trade and Resources, Education, Science and the Environment and representatives of ADAB.

The meeting agreed that the terms of reference of the Working Group should be 'to examine the desirability of revising or replacing the 1944 Treaty between Australia and New Zealand and to suggest matters that might be included in such a revision or Treaty'. It was further agreed that the 1944 Treaty did not constitute a useful working draft, and that a new document, if drawn up, would have to be based on a new draft. In particular the emphases in the 1944 Agreement reflect the war-time condition in which it was drafted; it over-emphasises the importance of the South Pacific in relations between the two countries, and its attitudes towards the South Pacific reflect the now outdated paternalism of those years.

Departments felt that the conclusion of any new treaty or lesser agreement should not take place until the substance of the future economic relationship becomes clearer, although this consideration should not delay further work on the revision exercise. A revised Pact could come into being together with or independent from closer economic association but it is not recommended that it be seen as a specific alternative to closer economic association.

It was clear that no Department felt that there was a pressing need for a new treaty although no Department expressed outright opposition to the idea. It was finally decided that the Working Group's mandate could best be fulfilled by the drafting of a document which might provide the basis for a new treaty, or possibly a joint statement by the two Prime Ministers, to be issued some time in the future. It would be left to Permanent Heads to decide either to proceed with negotiations with New Zealand for a treaty or communique or to decide that the treaty did not contain enough substance or advantage for Australia to proceed further.

During talks with New Zealand officials in Canberra on 13 December the New Zealanders were non-committal about the idea of a general pact and they revealed that they had not begun any drafting. However they shared the Australian view that the 1944 Treaty was not a good working draft and that a new text would be necessary. They did not object to the outline of our draft treaty as explained to them. The New Zealand officials informed us that they would attach importance to consultations in international relations and bilateral economic relations, and to the free exchange of people in trans-Tasman travel. ( It is most unlikely that the Department of Immigration and Ethnic Affairs would wish to go as far on this point as the New Zealanders would wish.) It was also clear that New Zealand would favour a section on economic relations between the two countries but accepted the Australian point of view that it would be difficult to complete this until we know the outcome of the closer association negotiations. The New Zealanders emphasised that they did not want any revision of the Pact to detract from closer economic association or to turn into a piece of paper which could be used as an alternative to closer economic association if this proved too difficult.

In comments made to Mr R. K. Gate on 1 February, during the Officials' Meeting in Wellington, Mr Bryce Harland, a senior official of the New Zealand Foreign Ministry, said that he was not keen on revision of the Treaty but stressed that he was speaking personally. He felt the press would quickly see it as an attempt to paper over fundamental differences while containing little of substance.

A draft cleared with Departments on the Working Group after extensive interdepartmental consultation is attached for decision by Australian Permanent Heads whether to continue with the exercise. A contribution form the Department of Defence is still to be submitted. The draft does not reflect the final positions of Departments on various articles but is submitted as a document which could be given to the New Zealanders as indicative of Australian thinking on the framework and coverage of any new treaty.

The rest of this report deals with sensitive issues and points for negotiation should it be decided to proceed further.

The Working Group believes that although the draft may contain little that is of new or positive advantage to Australia, the document does reflect the co-operation which does exist between the two countries and that its adoption would be in conformity with the importance that both sides attach to that co-operation. It is important to note that the draft does not commit either side to any new areas of activity. The important provisions on foreign affairs (Article II) are the same in substance as those in the 1944 Treaty and the Group does not consider that the provisions of the draft presage a closer degree of co-operation than already taken place.

There are two main arguments against concluding a new agreement-(1) that it would lead the New Zealanders to demand a greater degree of co-operation than now exists and (2) that the draft could be considered too empty and devoid of real commitment to be worthwhile. The first argument could be disposed of by making it clear that we consider that the draft reflects existing practice and that, although we would expect co-operation with New Zealand naturally to grow in future, we do not consider that the draft commits us to any new practices. The second argument is essentially one for the New Zealanders to pick up or reject. It does seem to us, however, to be a useful agreement which consolidates those areas of co-operation which now exist.

The Departments outlined the following areas of sensitivity which must be taken into account in considering the question of revising the Treaty.

Both the Departments of Defence and of Productivity do not wish to place undue emphasis on defence co-operation and supply in order to avoid raising expectations which may not be able to be met. The Department of Defence although confident that worthwhile advances can be achieved in defence supply co-operation, is also conscious that there are some significant practical limitations, including differences in procurement timings and in equipment requirements.

There is already in existence (1969) a Memorandum of Understanding with New Zealand on supply co-operation.

The Department of Education wishes to exclude any statement on recognition of educational qualifications. The Department of Immigration and Ethnic Affairs, in view of concern at abuses of entitlement to trans-Tasman travel, does not wish to give treaty status to the current arrangements for trans-Tasman travel, nor do they wish to include any comment on the question of harmonisation of immigration policies.

The Department of Transport wishes to omit any specific mention of trans-Tasman shipping services, the costs of which are seen by both sides as a factor inhibiting two-way trade.

In revising the draft we have looked closely at the Treaty of Nara. Article I, 1 and 2 are virtually taken from it. We have not, however, included in the draft those sections of the Treaty of Nara concerning the status of individuals and companies. The Working Group does not believe (and this is confirmed in our discussion with the New Zealand side) that such matters are of great concern to Australians in New Zealand or New Zealanders in Australia. Moreover, the introduction of such matters in a revision of the Pact would take it into difficult areas of jurisprudence and would be affected by State legislation governing the rights of individuals and companies.

[NAA: A1838, 370/1119/18, xv]